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Filing # 165478388 E-Filed 01/25/2023 05:57:04 PM
IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ELEVATION DEVELOPMENT II, LLC, CASE NO.: 2021-CA-001956
a Florida limited liability company,
Plaintiff,
v.
BRONSON FAMILY LIMITED,
PARTNERSHIP, a Nevada limited
liability company, et. al.,
Defendants.
PLAINTIFF’S MOTION TO CONTINUE JANUARY 31, 2023 EVIDENTIARY
HEARING TO DETERMINE LIS PENDENS BOND
Plaintiff, ELEVATION DEVELOPMENT II, LLC (“ELEVATION”), by and through
counsel, hereby files its Motion to Continue the January 31, 2023 Evidentiary Hearing to
Determine Lis Pendens Bond and asserts as grounds the following:
I. Introduction and Procedural Background
a. Procedural History
1. Plaintiff, ELEVATION, initiated this action on or about July 2, 2021.
2. Defendant, BRONSON, thereafter filed its Answer and Affirmative Defenses on or
about September 14, 2021.
3. On or about June 9, 2022, ELEVATION served its First Request for Production of
Documents (“First RFP”) on BRONSON.
4. On July 7, 2022, the Court held a hearing on Defendant’s Motion to Dissolve
Plaintiff’s Amended Lis Pendens.
5. On or about July 28, 2022, the Court issued its Order Denying Defendant’s Motion
to Dissolve Plaintiff’s Amended Lis Pendens and requiring Plaintiff to Post Bond.
6. On December 11, 2022, this Court enter the Agreed Order Setting Schedule for
Disclosure of Evidence on Amount of Lis Pendens Bond which gave the Parties until January 6,
2023 to disclose its list of anticipated fact and expert witnesses and anticipated exhibits for the
January 31, 2023 Bond Hearing (“Scheduling Order”).
7. As further discussed below, despite Plaintiff’s exhaustive efforts to obtain all
information needed to prepare and attend the Bond Hearing, Plaintiff has very recently received
documents and information that necessitates further discovery to prepare and attend the eventual
Bond Hearing.
b. Plaintiff’s First Request for Production – Factual and Procedural History
8. On or about August 3, 2022, BRONSON served its Response to ELEVATION’s
First Request for Production of Documents (“Response to RFP”).
9. Counsel for Plaintiff, ELEVATION, inquired to Defendants’ counsel regarding the
absence of responsive documents from BRONSON’S responses to Plaintiff’s First Request for
Production of Documents on August 5, 2022, however, counsel for BRONSON refused to provide
any timeline as to when BRONSON will complete its discovery responses by producing
documents responsive to ELEVATION’S request.
10. Between August 2022 and the end of October 2022 Counsel for Plaintiff made
numerous further attempts to obtain documents responsive to their Request for Production by email
and phone with counsel for BRONSON.
11. Notwithstanding the foregoing, counsel for Bronson did finally produce some
documents on October 28, 2022 and informed the undersigned that additional documents would
be produced on October 31, 2022. However, no documents were forthcoming.
12. In fact, Bronson did not produce any further documents until compelled to do so by
this Court’s ruling at the January 6, 2023 hearing on Plaintiff’s Motion to Compel.
13. On January 20, 2023, the Court entered its Order Granting in Part and Denying in
Part Plaintiff’s Motion to Compel and Overrule Defendant Bronson Family Limited Partnership’s
Responses and Objections to Request for Production of Documents (the “Order on Plaintiff’s
Motion to Compel”) which gave Bronson until January 20, 2023 to produce the documents
required by the Order. A copy of the Order on Motion to Compel is attached hereto as Exhibit “A”.
14. Notably, the Order on Plaintiff’s Motion to Compel GRANTS Plaintiff’s Motion
to Compel overruling Defendant’s objections to Plaintiff’s First RFP request No. 40. which seeks
“[a]ny contract or agreement between BRONSON and any person or entity, to purchase the subject
property from June 20, 2021 to present.”
15. Paragraph 5(b) of the Order, orders that “[a]s to request 36-39, the Motion is
Denied without prejudice. Depending on the existence of documents responsive to request 40,
Plaintiff may serve further request for other material related to documents responsive to request
40 that are reasonably likely to lead to the discovery of admissible evidence in this case.”
16. On January 20, 2023, Bronson produced documents per the Order on Motion to
Compel. In total the production in response to Plaintiff’s First RFP consists of over 3000 pages
(“RFP Production”), the majority of which was produced on January 20, 2023.
17. Bronson’s RFP Production includes documents responsive to Plaintiff’s First RFP
request No. 40. Attached hereto as composite Exhibit “B” are contracts and agreements between
BRONSON and various 3rd parties to purchase the subject property.
18. Per the Order on Motion to Compel, Plaintiff will be requesting other material
related to documents responsive to request 40 that are reasonably likely to lead to the discovery of
admissible evidence in this case, and more specifically relevant to the impending Bond Hearing.
19. It should also be noted that the Order on Motion to Compel also required that
Bronson serve a privilege log listing any documents withheld for privilege by January 23, 2023.
20. Bronson did not serve their Privilege Log until the date of this Motion, January 25,
2023, in violation of the Order on Motion to Compel. Bronson’s Privilege Log is attached hereto
as Exhibit “C”. The Privilege Log is 29 pages in length and consists of 477 categories of
documents.
21. As of the date of this Motion, Plaintiff has not had enough time to fully review the
Privilege Log, however on first glance, it appears there may be categories of documents withheld
for privilege that are not privileged and should be discoverable.
22. Plaintiff requires more time to fully review the Privilege Log to determine whether
or not documents should have been withheld for privilege.
c. Plaintiff’s Second Request for Production and Duces Tecum Request – Factual
History
23. On November 18, 2022, Plaintiff served Plaintiff’s Second Request for Production
of Documents on Defendant Bronson Family Limited Partnership (“Plaintiff’s Second RFP”).
24. Among other information and documents requested in Plaintiff’s Second RFP,
Request No. 3 sought “all expert reports prepared in anticipation of the hearing to determine the
appropriateness and/or amount of the bond pursuant to the Court’s July 28, 2022 Order on
Defendant’s Motion to Dissolve Amended Notice of Lis Pendens or Alternatively, to Require
Plaintiff to Post a Bond.” See Plaintiff’s Second RFP attached hereto as Exhibit “D”.
25. Further, Plaintiff’s Second RFP Request No. 4 sought “[a]ny and all expert reports
and any and all report(s) issued by your expert witnesses in this matter; including the documents
relied on by the experts to prepare the reports.”
26. It should also be noted that Plaintiff served a Notice of Taking Deposition Duces
Tecum of Harry W. Collison, Jr., Bronson’s disclosed Expert Witness for the Bond Hearing,
setting Mr. Collison’s deposition for January 20, 2023, and requesting a number of categories of
documents related to Mr. Collison’s expert valuation of the subject property, including Mr.
Collison’s expert report and any documents relied upon to prepare the report.
27. Bronson responded to Plaintiff’s Second RFP on December 20, 2022 (“Bronson’s
Response to Second RFP”). See Bronson’s Response to Second RFP attached hereto as Exhibit
“E”.
28. Bronson’s Response to Second RFP stated in response to Request No. 3 “[n]o
responsive documents exist as of the date of this response. As stated in Defendant’s Answers to
Plaintiff’s First Set of Expert Interrogatories, dated December 16, 2022, any expert report will be
produced within three (3) days of receipt by undersigned counsel.” See Response to Second RFP
at ¶ 3.
29. Bronson did not produce any expert reports requested in Plaintiff’s Second RFP
until January 20, 2023, the day of Bronson’s expert, Harry W. Collison, Jr.’s, deposition.
30. Bronson’s Response to Second RFP stated in response to Plaintiff’s Second RFP
Request No. 4 states, “[a]t the time of this response, no responsive documents exits.” See Response
to Second RFP at ¶ 4.
31. Again, Bronson did not produce documents responsive to Plaintiff’s Second RFP
Request No. 4, until January 20, 2023, the day of Bronson’s Expert’s deposition.
32. In addition to the expert report and documents Mr. Collison relied upon to prepare
the expert report, Bronson produced numerous other documents which Plaintiff is now in the
process of analyzing (“Duces Tecum Production”).
33. From the limited review and analysis of the documents produced in response to
Plaintiff’s Second RFP and Duces Tecum Notice, it is clear Plaintiff needs more time to seek
further discovery of information and documents relevant to the Bond Hearing.
34. Plaintiff also requests leave from the Court’s Scheduling Order deadlines to allow
Plaintiff to amend its Bond Hearing Witness and Exhibit disclosures to include documents received
in Bronson’s recent production.
II. Plaintiff Requests Leave from the Agreed Order Setting Schedule for
Disclosure of Evidence on Amount of Lis Pendens Bond to Seek Further
Discovery and Amend Plaintiff’s Witness and Exhibit Disclosure,
Necessitating a Continuance of the Bond Hearing
35. The evidentiary hearing to determine the amount of the bond, if any, is set for
January 31, 2023. Plaintiff will be prejudiced at the bond hearing if Plaintiff is not given an
opportunity to pursue the avenue given by this Court’s Order on Plaintiff’s Motion to Compel to
request further documents and information relevant to the valuation issue which is the subject of
the Bond Hearing.
36. Further, Plaintiff should be given an opportunity to retain an expert to confront
issues the recently produced Expert Report has brought to light.
37. As stated above, the Scheduling Order gave the Parties until January 6, 2023 to
disclose its list of anticipated fact and expert witnesses and anticipated exhibits for the January 31,
2023 Bond Hearing.
38. When the Scheduling Order was entered, Plaintiff did not anticipate the length of
time it would take for Bronson to produce all documents and information relevant to the Bond
Hearing. It is now apparent, after finally receiving the first round of requested information and
documents from Bronson, just days prior to this motion and days ahead of the Bond Hearing, that
Plaintiff requires further information to adequately support its position at the Bond Hearing.
39. Bronson’s RFP Production includes documents responsive to Plaintiff’s First RFP
request No. 40 which includes contracts and agreements between BRONSON and various 3rd
parties to purchase the subject property.
40. As discussed above, the Court’s Order on Motion to Compel denied without
prejudice, Plaintiff’s First RFP requests 36-39, which each request correspondence related to any
contract or agreement between BRONSON and any person, to purchase the subject property.
Plaintiff believes that the information requested in 36-39 could lead evidence essential to
Plaintiff’s position at the Bond Hearing.
41. Plaintiff will be prejudiced at the bond hearing if not given an opportunity to pursue
production of the information sought in Plaintiff’s First RFP request 36-39.
42. Further, along with the information Plaintiff may receive from the further requested
information discussed in the previous paragraph, Plaintiff is in the process of reviewing and
analyzing the voluminous RFP Production which may contain information that Plaintiff wishes to
include as Exhibits for the bond hearing.
43. Furthermore, Plaintiff requires more time to fully review Bronson’s recently served
Privilege Log to first, determine whether or not certain categories of documents were properly
withheld for privilege and second, whether such documents are relevant to the Bond Hearing.
44. As such Plaintiff requests a continuance of the Bond Hearing to allow further
discovery in line with Court’s Order on Motion to Compel, time to properly vet Bronson’s
Privilege Log, leave of the Court to amend its Witness and Exhibit Disclosures to include further
documents as exhibits received in Bronson’s RFP Production and that may revealed through
further discovery and possible further expert witness(es) to confront the new information provided
in the Duces Tecum Production.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court continue the
hearing set for January 31, 2023 to determine the amount of the bond, if any, for 60 days to allow
Plaintiff to pursue further discovery in line with this Court’s Order on Motion to Compel; for leave
of Court to amend the Scheduling Order; and for such other relief as is just and proper.
DATED this 25th day of January, 2023.
GREENSPOON MARDER LLP
Attorneys for Defendant/Counter-Plaintiff
201 East Pine Street, Suite 500
Orlando, FL 32801
Phone: 407-425-6559
Fax: 407-563-9665
E-mail: Edmund.Loos@gmlaw.com
E-mail: Patrick.Hennessey@gmlaw.com
E-mail 2: Tami.Austin@gmlaw.com
E-mail 2: Eric.Cruz@gmlaw.com
E-mail 3: chad.tamaroff@gmlaw.com
E-mail 3: agatha.mctier@gmlaw.com
By: /s/ Edmund O. Loos III
EDMUND O. LOOS, III, Esq.
Florida Bar No.: 899161
PATRICK J. HENNESSEY JR, Esq.
Florida Bar No.: 0106964
CHAD J. TAMAROFF, Esq.
Florida Bar No. 163368
Counsel for Plaintiff ELEVATION
DEVELOPMENT II, LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 25, 2023, I electronically filed the foregoing
document with the Clerk of Court by using the Florida Court’s E-Filing Portal, which will send a
Notification of Electronic Filing along with a true and correct copy of the foregoing document to
Todd Norman, Esq., Shaina Stahl, Esq., Counsel for Defendant, (todd.norman@nelsonmullins.com,
shaina.stahl@nelsonmullins.com, shawana.watt@nelsonmullins.com, and katherine.reynolds@nelsonmullins.com).
/s/ Edmund O. Loos III
EDMUND O. LOOS
Filing # 165204684 E-Filed 01/23/2023 09:13:40 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ELEVATION DEVELOPMENT II, LLC, a
Florida limited liability company,
Plaintiff, Case No. 2021-CA-001956
V.
BRONSON FAMILY LIMITED
PARTNERSHIP, a Nevada limited
partnership,
Defendant.
a
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
COMPEL AND OVERRULE DEFENDANT BRONSON FAMILY LIMITED
PARTNERSHIP’S RESPONSES AND OBJECTIONS TO REQUEST FOR
PRODUCTION OF DOCUMENTS
THIS MATTER came before the Court for hearing on January 6, 2022 on Plaintiffs
Motion to Compel and Overrule Defendant Bronson Family Limited Partnership’s Responses and
Objections to Request for Production of Documents (hereinafter referred to as the “Motion”) and
the Court, having reviewed the record of this cause, having considered the argument of counsel,
and being otherwise duly advised in the premises, does hereby ORDER AND ADJUDGE as
follows:
1. Plaintiff's Motion is hereby GRANTED IN PART AND DENIED IN PART.
2. The Motion is GRANTED and Defendant’s objections are overruled as follows:
a. As to requests 1, 2, 3, 7, 11, 12, 14-20, 22-25 and 32-34, all objections other
than privilege are waived by virtue of Defendant Bronson Family Limited
Partnership’s (“Defendant”) agreement to produce responsive documents.
EXHIBIT
A
4865-4435-0025 v.12 123975/00011, 8:14 AM, 01/14/2023
b. As to requests 4-6, and 40, the Defendant’s objections are overruled, and the
Motion is granted.
c. As to request 26, Defendant’s objections are overruled and the Motion is
granted, subject to the request being temporally limited from January 2018 to
present.
a Defendant shall have until January 20, 2023 to produce all documents in
compliance with this Order.
4. Defendant shall have until January 23, 2023 to serve a privilege log listing any
documents withheld for privilege.
a: The Motion is DENIED and Defendant’s objections are sustained as follows:
a. As to requests 13, 31, and 35-39, Defendant’s “overbroad” objections are
sustained, and the Motion is denied.
b. As to request 36-39, the Motion is Denied without prejudice. Depending on the
existence of documents responsive to request 40, Plaintiff may serve further
requests for other material related to documents responsive to request 40 that
are reasonably likely to lead to the discovery of admissible evidence in this case.
c. As to request 27, Defendant’s “relevance” objection is sustained, and the
Motion is denied.
6. The Court declines to award either party attorneys’ fees and costs incurred for
bringing or defending the Motion.
oa
DONE AND ORDERED in Chambers at Orlando, Oscgola County, Elorida, this reey
day of January, 2023. Judge Chae | | /«ee
K. Alvar
z
4865-4435-0025 v.1 123975/00011, @:14 AM, 01/14/2023
Copies to all Counsel of record on attached service list =—LO OKOUL fa)
Quite WAL
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9865-4435-0025 v.1 123975/00011, 8:14 AM, 01/14/2023
Patrick J. Hennessey, Jr., Esq.
Vi, Capital Plaza |
Greenspoon
___ Marder
—— CELEBRATING 5
FORTY YEARS TOGETHER nlOrlando,
easPeSeer
Florida eee ase
Fax: 407.422.6583
Direct Phone: 407.692.9111
Direct Fax: 954.333.4029
Email: patrick.hennessey@gmlaw.com
January 18, 2023
VIA ELECTRONIC MAIL (division20b@ocnijcc.org)
The Honorable Judge Chad K. Alvaro
Jon B. Morgan Osceola County Courthouse
2 Courthouse Square, Room 5-E
Kissimmee, FL 34741
Re: Elevation Development HI, LLC vs. Bronson Family Limited Partnership, ef. al.
Case No. 2021-CA-001956 (9th Jud. Cir. Court, Osceola County FL)
Proposed Order Granting in Part and Denying in Part Plaintiff's
Motion to Compel
Dear Judge Alvaro:
This firm represents Plaintiff Elevation Development I], LLC, in the above referenced
matter. Pursuant to the Court’s decision at the January 6, 2023 court hearing regarding Plaintiff's
Motion to Compel and Overrule Defendant Bronson Family Limited Partnership’s Responses and
Objections to Requests for Production of Documents, attached please find a proposed order for
your Honor’s approval.
Should the proposed Order meet with your approval, we respectfully request the Court
promptly enter the Order prior to the upcoming deadlines in January 2023, if, the Order is not
acceptable, please have your Judicial Assistant contact us to advice on the same.
Very truly yours,
GREENSPOON MARDER LLP
/S/ Patrick J. Hennessey, Jr.
Patrick J. Hennessey, Jr., Esq.
ce: All Counsel of Record
Atlanta Boca Raton Chicago Denver Edison Ft. Lauderdale Las Vegas Los Angeles Miarni
Naples New York Orlando Pordand Scottsdale Tallahassee Tampa West Palm Beach
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STATE OF FLORIDA FLORIDA DIVISION
OSCEOLA COUNTY HARBOR RESERVE
Land Purchase Contract
THIS LAND PURCHASE CONTRACT (this “Contract”) is made by and between D.R. Horton, Inc., a
Delaware corporation (“Buyer”) and Bronson Family Limited Partnership, a Nevada limited liability partnership
(“Seller”). Both parties state and acknowledge as follows:
A. Seller owns approximately 120 acres of land located in Osceola County (the “County”}, Florida, as
described and generally depicted graphically in ExhibitA attached hereto and incorporated herein (the “Land”),
intended for development of Four Hundred Twenty-Seven (427) single family detached lots and One Hundred Eighteen
(118) townhome lots (collectively, the “Lots”} out of the Land (the “Intended Use”). The Land, all rights, permits,
privileges, licenses and easements appurtenant thereto, and all vegetation and improvements located thereon, are
hereinafter collectively referred to as the “Property.”
B. Seller desires to sell the Property to Buyer, and Buyer desires to purchase the Property from Seller.
C. Seller has disclosed to Buyer that the subject Property was previously under contract (the “Prior
Contract”) to sell the Property to Elevation Development Ii, LLC. (‘Elevation’), which Prior Contract was terminated by
Seller due to the Buyer's failure, refusal or inability to close the transaction as and when required by the Prior Contract,
and that Elevation has now commenced an action against Seller for specific performance and/or damages, as more
particularly set forth in Elevation’s Complaint filed in the Circuit Court of the Ninth Judicial Circuit in and for Osceola
County, Florida, Case Number 2021-CA-1956-OC (the “Lawsuit’). Elevation has further proceeded to file a Notice of
Lis Pendens in the Public Records of Osceola County, Florida.
cca te oe enttswats «sua elHEREFORE, for.and in_consideration_of
the reciprocal covenants stated herein, the parties agree asfollows:
1. Conveyance. Seller shall sell and convey the Property to Buyer, and Buyer shall purchase the Property from
Seller, on the terms and conditions stated herein.
2. Effective Date. The “Effective Date” means the last of the following dates: (a} the date this Contract fs
executed by Buyer at the Division level (the “Local Execution Date”), (b) the date this Contract is executed by Seiler,
or (c) the date of Buyer's corporate ratification, as required by Section 21 below.
3. Purchase Price. The purchase price of the Property (the “Purchase Price”) shall be Fourteen Million
Four Hundred Thousand Dollars ($14,400,000). The Purchase Price shail be payable at closing on the sale and
purchase of the Property (“Closing”) by delivery of immediately available funds, subject to adjustments, prorations
and credits as herein provided.
4, Earnest Money.
a. Initial Deposit. Within fifteen (15) business days of the Effective Date, the parties shall execute an
escrow agreement in form substantially as shown by Exhibit B attached hereto and incorporated herein (the “Escrow
Agreement"), whereupon Buyer shall deposit the sum of Twenty-Five Thousand Dollars ($25,000) (the “Initial
Deposit") with First American Title Insurance Company (“Escrow Agent”), If Buyer fails to deliver the Initial Deposit
as required herein, and such failure continues for a period of five (5) business days after written notice from Seller,
then either party may terminate this Contract by written notice to the other at any time prior to the deposit of the
Initial Deposit. If this Contract is so terminated, this Contract shall be deemed to have terminated as of the date that
the Initial Deposit was originally to have been delivered by Buyer, and there shall be no remedy hereunder to either
Seller or Buyer other than the termination of this Contract. The Escrow Agent shall deposit the amount in an escrow
account with a federally insured bank, as required by the Escrow Agreement, Buyer shail determine, at Buyer’s sole
and absolute discretion, whether the escrow account shall be interest-bearing; however, any interest earned on any
funds held in escrow shall be for the benefit of Buyer,
EXHIBIT
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b. Second Deposit. If Buyer delivers to Seller a Notice of Suitability, as provided in Section 10 below,
then Buyer shall deposit as additional earnest money with Escrow Agent (the “Second Deposit”), no later than five
(5) business days after the expiration of the Inspection Period, the sum of Two Hundred Fifty Thousand Dollars
($250,000). The Escrow Agent shall deposit the Additional Earnest Money in the escrow account described in subsection
(a) above
c. Disbursement of Earnest Money; Escrow Agent Duties. The Initial Deposit and the Second Deposit,
any additions thereto and any proceeds thereof, together with all earnings thereon, shall be collectively referred to
herein as the “Earnest Money.” Escrow Agent shall hold and disburse the Earnest Money pursuant to the terms of this
Contract and the terms set forth on Exhibit B attached hereto and incorporated herein by this reference (the “Escrow
Agent Standard Provisions”). Upon the request of either party, the other party shall promptly execute and deliver
written instructions to the Escrow Agent to disburse the Earnest Money as required by this Contract. Upon Escrow
Agent's receipt of any portion of the Earnest Money, it shall execute the form of acknowledgement attached hereto as
Exhibit B-1 (the “Escrow Agent Acknowledgement”) and deliver a copy of the same to the parties, Unless otherwise set
forth in this Contract, the Earnest Money shall be credited against the Purchase Price due at Closing.
5. Primary Contingencies; Definitions.
a. Primary Contingencies. Buyer's obligation to close on the purchase of the Property under this
Contract is contingent upon each and all of the following (collectively, the “Primary Contingencies”):
i. all of Seller's warranties, representations and covenants contained in this Contract shall be
and remain true, correct, complete and fully performed; .
ii. all applicable governmental authorities having jurisdiction over the Property, including,
without limitation, the County and the State (and their respective agencies) (collectively and as applicable,
the “Governing Jurisdiction”) shall have issued the Preliminary Subdivision Plan Approval. The term
‘Preliminary Subdivision Plan Approval” or “PSP Approval’ means: (1) that the Governing Jurisdiction
has issued written, final, and irrevocable approval, with all appeal periods expired, of a Preliminary Subdivision
omnes em PBlan PSP") réflecting not léss than Four Hundred TWwenty-Seven (427) single farnily détached lets and One
Hundred Eighteen (118) townhome lots (collectively, the “Lots”} out of the Land, on terms and conditions
acceptable to Buyer, and (2) that development of the Property shall be authorized by the Governing
Jurisdiction pursuant to the PSP, subject to Buyer obtaining approval of a Final Subdivision Plan and Final Plat
consistent with the PSP, both of which Buyer will obtain after the Closing. Seller will have no obligation or
liability for any costs or expenses for the PSP or any other entitlements whatsoever.
iti. there shall have occurred no material adverse change in the physical (including
environmental}, financial or fegal conditions of the Property from the conditions existing as of the Effective
Date;
iv. The Notice of Lis Pendens recorded with respect to Elevation’s Lawsuit shall have been
discharged, with all appeal periods, if any, having expired without an appeal having been filed;
v. there are no Notices of Lis Pendens encumbering the Property recorded in the Public
Records; and
- vi. Seller shall be ready, willing and able to deliver good and marketable title (as defined in .
Section 8 below) to the Property to Buyer, and Buyer's title insurer (the “Title Company”) shail be prepared
to issue a standard ALTA owner's form title policy insuring good and marketable fee simple title to the Property
with a liability limit in the amount of the Purchase Price at standard premium rates, without any Schedule B-
T Requirements or Schedule B-IT Exceptions related to the Lawsuit, the lawsuit filed by David Bronson against
the Seller (the “Internal Lawsuit”), or any other lawsuits.
b. Should any of the Primary Contingencies not be satisfied or waived in writing by Buyer within 30
days of the Effective Date (“Primary Contingency Deadline”), then Buyer, at its option, may in its sole discretion,
terminate this Contract prior to the expiration of the Primary Contingency Deadline by giving written Notice to Seller
(“Termination Notice”), in which event, all of the Earnest Money shall be immediately refunded to Buyer, In the event
Buyer fails to provide a Termination Notice within five (5) business days after the expiration of the Primary Contingency
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Deadline, Seller may send written notice requesting Buyer terminate the Contract, extend the Primary Contingency
Deadline, or waive the outstanding Primary Contingencies (‘Selier’s Election Notice”). Buyer shall have ten (10)
business days after receipt of Seller’s Election Notice to provide written notice of Buyer’s election. If Buyer fails to make
a timely election, this Contract shall automatically terminate upon the release of the Earnest Money Deposit to Buyer
and the parties shall be released from further obligation hereunder except those which expressly survive termination:
c Mutual Cooperation, Seller and Buyer will each cooperate with each other, their employees, and
agents, in a reasonable and timely fashion in the execution of such documents and instruments as may be required to
effectuate the transaction herein envisioned and to facilitate the purpose and intent of this Contract.
d. Seller Consents and Authorizations. Seller consents to Buyer's submission prior to the Closing of all
additional permits, approvals, and entitlements (“Additional Approvals”) for elements of the Intended Use for review
by and approval of all governmental agencies having jurisdiction. The Additional Approvals shall be at Buyer’s sole cost
and expense and at no cost or expense to Seller. Seller shall reasonably cooperate with and actively support Buyer's
efforts to obtain the Additional Approvals. Such cooperation and support by Seller shall include, without limitation,
consent to, execution and submission to governmental agencies of any letters, applications, petitions, requests or other
documents reasonably requested by Buyer within seven (7) days after receipt thereof by Seller, (collectively “Consents
and Authorizations”).
6. Closing and Possession, Subject to the termination rights in Section 25, Closing shail be held on the date
(“Closing Date”) that is thirty (30) days after the later to occur of (a) Buyer delivers to Seller a Notice of Suitability,
and (b) the date on which all of the Primary Contingencies have been either satisfied or expressly waived in writing by
Buyer; provided that Closing must take place on a Tuesday, Wednesday or Thursday that is a business day (a
“Permitted Closing Day”), and may be extended no more than an additional five (5) days in order to be scheduled
on one of those days of the week. Closing shall be held at a time, date and location designated by Buyer. At Closing,
Seller shall deliver a special warranty deed conveying fee simple title to the Property in recordable form acceptable to
Buyer in its reasonable discretion and Seller in its reasonable discretion (the “Deed”. At Closing, Seller shall also
execute and deliver to Buyer a general assignment of rights against third-parties in the form of Exhibit D attached
hereto and incorporated herein, and specific assignments of any Seller Entitlements (defined below) that Buyer desires
sorrento assume, inciding-any-consents-tosuch-assignments from the applicable authority-if-required: Seller-shalt-deliver—---——~--~ ---
exclusive possession of the Property to Buyer at Closing.
7. Closing Costs and Prorations. Seller shall pay the state documentary stamp tax, the cost of satisfaction
of any liens on the Property, Seller’s attorneys’ fees and all other expenses incurred by Seller related to Closing. Buyer
shall pay Buyer's attorneys’ fees, the cost of any title search, the cost of Buyer’s survey, the premiums and cost for
preparation and issuance of an owner’s titie insurance policy, and all costs pertaining to the PSP and any other
entitlements pertaining to the Property, and any and all costs and expenses pertaining to any tests, reports, inspection
or due diligence ordered or obtained by Buyer. Ad valorem taxes on the Property for the tax year of Closing shall be
prorated between Seller and Buyer as of Closing based on the latest assessment available. Should such proration be
inaccurate based on the actual ad valorem tax bill when received, either party shall be entitled, upon demand, to
adjustment of the proration and corresponding reimbursement from the other party. Seller shall be solely responsible
for any deferred or past due taxes. The provisions of this Section shall survive Closing,
8. Conveyance of Title. At Closing, Seller shall convey good and marketable title to the Property to Buyer
pursuant to the Deed. As used in this Contract, “good and marketable title” shall mean fee simple title that is free and
clear of all liens, encumbrances, leases, licenses, and other occupancy agreements and arrangements, and other
exceptions to title and rights of others except those Permitted Exceptions listed on Exhibit E attached hereto and
incorporated herein. Buyer shall examine title to the Property and give written notice to Seller of any objections that
Buyer may have pricr to the expiration of the Inspection Period (the “Initial Objection to Title Notice”). Within ten
(10) days after receipt of the Initial Objection to Title Notice, Seller shall provide written notice to Buyer whether Seller
will cure any such objections or refuse to cure such objections. Failure by Seller to give written notice of its election
within ten (16) days after receipt of the Initial Objection to Title Notice shall be deemed an election by Seller not to
cure the objections. In the event Seller elects, or is deemed to have elected, not to cure any objections, then Buyer
shall have the right to elect either: (a) to waive the unsatisfied objections and proceed with Closing, or (b) to terminate
this Contract in its entirety and receive an immediate refund of the Earnest Money. Failure by Buyer to give written
notice of its election within ten (10) days after Seller’s election or deemed election shall constitute an election by Buyer
to terminate this Contract and receive an immediate refund of the Earnest Money. In the event Seller elects to cure
the objections, Seller shall have thirty (30) days from the date of the notice to cure all such objections, at Seller's sole
cost, The Closing shall be delayed during and extended for any such cure period. If Seller fails for any reason to cure
59013501;9
DocuSign Envelope ID: EA2B9F44-3003-44CB-AF6B-2C23F4FB2B52
DocuSign Envelope ID; 3CC17AA2-2D0A-4555-B7D1-F385534B6D86
the objections within thirty (30) days, then, in addition to any rights and remedies which Buyer may have pursuant to
Section 15, Buyer may: (1) waive the unsatisfied objections and complete the purchase of all portions of the Property
scheduled for Closing, including those subject to the unsatisfied objections, or (2) terminate this Contract in its entirety
and receive an immediate refund of the Earnest Money. Any objections that are waived in writing by Buyer, or deemed
to be waived by Buyer pursuant to this Section 8, shall become “Permitted Exceptions.” Notwithstanding anything
to the contrary contained herein, Seller shall be obligated to remove any exception that can be cured by the payment
of a fixed or determinable sum of money such as a deed of trust, mortgage, deferred tax or confirmed assessment,
but excluding any claim or liens which are the result of any actions or omission of the Buyer (collectively, “Monetary
Liens”). Buyer may re-examine title up to Closing and give written notice to Seller of any objections that Buyer may
have as to matters first appearing of record subsequent to Buyer's Initial Objection to Title Notice, as to matters that
did not exist or were not of public record as of the Effective Date, which new title objections shall be addressed as set
forth above. At Closing, Selter shall execute an Owner's Affidavit and any other affidavits, certificates and documents
reasonably required by Buyer or the Title Company to deliver title as required by this Contract.
9. Buyer's Survey. Prior to the end of the Inspection Period, Buyer may obtain at its expense an ALTA survey
of the Property. If Buyer obtains a survey, Buyer shall provide Seller with a copy of a plat of the survey, and the legal
description of the Property in the Deed shall include a metes and bounds description of the Property derived from the
Buyer's survey. Within fifteen (15) days after delivery of the plat of survey to Seiler, Seller shall notify Buyer in writing
of any objection to the Buyer's survey. If a notice of objection is not timely received, the Buyer's survey shall be deemed
accepted by Seller. If Seller objects to the Buyer’s survey, then Seller’s objection shall be referred to a panel of three
(3) surveyors, one of which shail be selected by the Seller, one of which shall be selected by the Buyer and the third
of which shall be selected by the surveyors selected by the Seller and Buyer. The costs of the three (3) surveyors shall
; be borne by the party who the surveyors rule against. The ruling of the panel of the surveyors shall be binding. ;
Notwithstanding anything contained in this Section 9, or anything else contained in the Contract, the Purchase Price
stated herein is a fixed price and is not based upon the acreage of the Property or any other amount of land or quantity
of iots.
10, Inspection Period.
we mecmerennemenns meen nmnnnnnen ~~-ay- 7 Buration: “The“Inspection Period” ts the period-of-time-beginning-with-the Effective Bate-and----— nn
ending at 11:59 p.m. on the earlier of (i) the date that is thirty (30) days later, and (ii) the date that is sixty (60) days
after the Local Execution Date.
b. Rights and Obligations. From the Local Execution Date through Closing, Buyer may enter upon the
Property to inspect and examine the Property and to perform whatever tests and studies of the Property Buyer deems
necessary or appropriate. Seller shall cooperate with Buyer in its entry upon, and its inspections, tests, examinations
and studies of, the Property. Buyer shall indemnify Seller for any and all claims of bodily injury or damage to property
(including the Property itself) arising out of Buyer's inspections of the Property. Buyer shall also indemnify Seller for
liens which may be filed against the Property by persons or entities employed or contracted by Buyer to perform
inspections of the Property. However, Buyer's indemnity of Seller shall not cover or apply to: (1) any loss, cost or
expense arising or resulting from acts or omissions of Seller, (2) any diminution in the value of the Property arising or
resulting from matters discovered by Buyer during its investigations of the Property, (3) any latent defects in the
Property discovered by Buyer, or (4) the release or spread of any Hazardous Substance discovered, but not deposited,
by Buyer on or under the Property. Buyer’s Indemnity of Seller pursuant to this subsection b shall survive Closing or
any earlier termination of this Contract for a period of one (1) year.
c. Notice of Suitability. The results of all inspections, tests, examinations and studies of the Property
performed during the Inspection Period must be suitable to Buyer, in its sole and absolute discretion. Prior to the
expiration of the Inspection Period, Buyer may notify Seller that such results are suitable to Buyer by delivering to
Seller a written Notice of Suitability (the “Notice of Suitability’) signed by one of the executive officers of Buyer
listed in Section 21 below (collectively, the “Authorized Officers”), No such Notice of Suitability shall be valid and
effective unless signed by one of the Authorized Officers. If Buyer fails for any reason to send Seller the Notice of
Suitability by the end of the Inspection Period, and such failure continues for a period of ten (10) days after written
notice from Seller, this Contract shall automatically terminate. Also, if Buyer notifies Seller in writing at any time prior
to issuance of a Notice of Suitability that the results of its inspections, tests, examinations or studies are not suitable
to Buyer, then this Contract shall automatically terminate. Upon such termination, Buyer shall be entitled to an
immediate refund of all Earnest Money then held by the Escrow Agent, and thereafter neither party shall have any
further obligation to the other hereunder, except such obligations that survive termination by express provision herein.
Preview
Filing # 165478388 E-Filed 01/25/2023 05:57:04 PM IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ELEVATION DEVELOPMENT II, LLC, CASE NO.: 2021-CA-001956 a Florida limited liability company, Plaintiff, v. BRONSON FAMILY LIMITED, PARTNERSHIP, a Nevada limited liability company, et. al., Defendants. PLAINTIFF’S MOTION TO CONTINUE JANUARY 31, 2023 EVIDENTIARY HEARING TO DETERMINE LIS PENDENS BOND Plaintiff, ELEVATION DEVELOPMENT II, LLC (“ELEVATION”), by and through counsel, hereby files its Motion to Continue the January 31, 2023 Evidentiary Hearing to Determine Lis Pendens Bond and asserts as grounds the following: I. Introduction and Procedural Background a. Procedural History 1. Plaintiff, ELEVATION, initiated this action on or about July 2, 2021. 2. Defendant, BRONSON, thereafter filed its Answer and Affirmative Defenses on or about September 14, 2021. 3. On or about June 9, 2022, ELEVATION served its First Request for Production of Documents (“First RFP”) on BRONSON. 4. On July 7, 2022, the Court held a hearing on Defendant’s Motion to Dissolve Plaintiff’s Amended Lis Pendens. 5. On or about July 28, 2022, the Court issued its Order Denying Defendant’s Motion to Dissolve Plaintiff’s Amended Lis Pendens and requiring Plaintiff to Post Bond. 6. On December 11, 2022, this Court enter the Agreed Order Setting Schedule for Disclosure of Evidence on Amount of Lis Pendens Bond which gave the Parties until January 6, 2023 to disclose its list of anticipated fact and expert witnesses and anticipated exhibits for the January 31, 2023 Bond Hearing (“Scheduling Order”). 7. As further discussed below, despite Plaintiff’s exhaustive efforts to obtain all information needed to prepare and attend the Bond Hearing, Plaintiff has very recently received documents and information that necessitates further discovery to prepare and attend the eventual Bond Hearing. b. Plaintiff’s First Request for Production – Factual and Procedural History 8. On or about August 3, 2022, BRONSON served its Response to ELEVATION’s First Request for Production of Documents (“Response to RFP”). 9. Counsel for Plaintiff, ELEVATION, inquired to Defendants’ counsel regarding the absence of responsive documents from BRONSON’S responses to Plaintiff’s First Request for Production of Documents on August 5, 2022, however, counsel for BRONSON refused to provide any timeline as to when BRONSON will complete its discovery responses by producing documents responsive to ELEVATION’S request. 10. Between August 2022 and the end of October 2022 Counsel for Plaintiff made numerous further attempts to obtain documents responsive to their Request for Production by email and phone with counsel for BRONSON. 11. Notwithstanding the foregoing, counsel for Bronson did finally produce some documents on October 28, 2022 and informed the undersigned that additional documents would be produced on October 31, 2022. However, no documents were forthcoming. 12. In fact, Bronson did not produce any further documents until compelled to do so by this Court’s ruling at the January 6, 2023 hearing on Plaintiff’s Motion to Compel. 13. On January 20, 2023, the Court entered its Order Granting in Part and Denying in Part Plaintiff’s Motion to Compel and Overrule Defendant Bronson Family Limited Partnership’s Responses and Objections to Request for Production of Documents (the “Order on Plaintiff’s Motion to Compel”) which gave Bronson until January 20, 2023 to produce the documents required by the Order. A copy of the Order on Motion to Compel is attached hereto as Exhibit “A”. 14. Notably, the Order on Plaintiff’s Motion to Compel GRANTS Plaintiff’s Motion to Compel overruling Defendant’s objections to Plaintiff’s First RFP request No. 40. which seeks “[a]ny contract or agreement between BRONSON and any person or entity, to purchase the subject property from June 20, 2021 to present.” 15. Paragraph 5(b) of the Order, orders that “[a]s to request 36-39, the Motion is Denied without prejudice. Depending on the existence of documents responsive to request 40, Plaintiff may serve further request for other material related to documents responsive to request 40 that are reasonably likely to lead to the discovery of admissible evidence in this case.” 16. On January 20, 2023, Bronson produced documents per the Order on Motion to Compel. In total the production in response to Plaintiff’s First RFP consists of over 3000 pages (“RFP Production”), the majority of which was produced on January 20, 2023. 17. Bronson’s RFP Production includes documents responsive to Plaintiff’s First RFP request No. 40. Attached hereto as composite Exhibit “B” are contracts and agreements between BRONSON and various 3rd parties to purchase the subject property. 18. Per the Order on Motion to Compel, Plaintiff will be requesting other material related to documents responsive to request 40 that are reasonably likely to lead to the discovery of admissible evidence in this case, and more specifically relevant to the impending Bond Hearing. 19. It should also be noted that the Order on Motion to Compel also required that Bronson serve a privilege log listing any documents withheld for privilege by January 23, 2023. 20. Bronson did not serve their Privilege Log until the date of this Motion, January 25, 2023, in violation of the Order on Motion to Compel. Bronson’s Privilege Log is attached hereto as Exhibit “C”. The Privilege Log is 29 pages in length and consists of 477 categories of documents. 21. As of the date of this Motion, Plaintiff has not had enough time to fully review the Privilege Log, however on first glance, it appears there may be categories of documents withheld for privilege that are not privileged and should be discoverable. 22. Plaintiff requires more time to fully review the Privilege Log to determine whether or not documents should have been withheld for privilege. c. Plaintiff’s Second Request for Production and Duces Tecum Request – Factual History 23. On November 18, 2022, Plaintiff served Plaintiff’s Second Request for Production of Documents on Defendant Bronson Family Limited Partnership (“Plaintiff’s Second RFP”). 24. Among other information and documents requested in Plaintiff’s Second RFP, Request No. 3 sought “all expert reports prepared in anticipation of the hearing to determine the appropriateness and/or amount of the bond pursuant to the Court’s July 28, 2022 Order on Defendant’s Motion to Dissolve Amended Notice of Lis Pendens or Alternatively, to Require Plaintiff to Post a Bond.” See Plaintiff’s Second RFP attached hereto as Exhibit “D”. 25. Further, Plaintiff’s Second RFP Request No. 4 sought “[a]ny and all expert reports and any and all report(s) issued by your expert witnesses in this matter; including the documents relied on by the experts to prepare the reports.” 26. It should also be noted that Plaintiff served a Notice of Taking Deposition Duces Tecum of Harry W. Collison, Jr., Bronson’s disclosed Expert Witness for the Bond Hearing, setting Mr. Collison’s deposition for January 20, 2023, and requesting a number of categories of documents related to Mr. Collison’s expert valuation of the subject property, including Mr. Collison’s expert report and any documents relied upon to prepare the report. 27. Bronson responded to Plaintiff’s Second RFP on December 20, 2022 (“Bronson’s Response to Second RFP”). See Bronson’s Response to Second RFP attached hereto as Exhibit “E”. 28. Bronson’s Response to Second RFP stated in response to Request No. 3 “[n]o responsive documents exist as of the date of this response. As stated in Defendant’s Answers to Plaintiff’s First Set of Expert Interrogatories, dated December 16, 2022, any expert report will be produced within three (3) days of receipt by undersigned counsel.” See Response to Second RFP at ¶ 3. 29. Bronson did not produce any expert reports requested in Plaintiff’s Second RFP until January 20, 2023, the day of Bronson’s expert, Harry W. Collison, Jr.’s, deposition. 30. Bronson’s Response to Second RFP stated in response to Plaintiff’s Second RFP Request No. 4 states, “[a]t the time of this response, no responsive documents exits.” See Response to Second RFP at ¶ 4. 31. Again, Bronson did not produce documents responsive to Plaintiff’s Second RFP Request No. 4, until January 20, 2023, the day of Bronson’s Expert’s deposition. 32. In addition to the expert report and documents Mr. Collison relied upon to prepare the expert report, Bronson produced numerous other documents which Plaintiff is now in the process of analyzing (“Duces Tecum Production”). 33. From the limited review and analysis of the documents produced in response to Plaintiff’s Second RFP and Duces Tecum Notice, it is clear Plaintiff needs more time to seek further discovery of information and documents relevant to the Bond Hearing. 34. Plaintiff also requests leave from the Court’s Scheduling Order deadlines to allow Plaintiff to amend its Bond Hearing Witness and Exhibit disclosures to include documents received in Bronson’s recent production. II. Plaintiff Requests Leave from the Agreed Order Setting Schedule for Disclosure of Evidence on Amount of Lis Pendens Bond to Seek Further Discovery and Amend Plaintiff’s Witness and Exhibit Disclosure, Necessitating a Continuance of the Bond Hearing 35. The evidentiary hearing to determine the amount of the bond, if any, is set for January 31, 2023. Plaintiff will be prejudiced at the bond hearing if Plaintiff is not given an opportunity to pursue the avenue given by this Court’s Order on Plaintiff’s Motion to Compel to request further documents and information relevant to the valuation issue which is the subject of the Bond Hearing. 36. Further, Plaintiff should be given an opportunity to retain an expert to confront issues the recently produced Expert Report has brought to light. 37. As stated above, the Scheduling Order gave the Parties until January 6, 2023 to disclose its list of anticipated fact and expert witnesses and anticipated exhibits for the January 31, 2023 Bond Hearing. 38. When the Scheduling Order was entered, Plaintiff did not anticipate the length of time it would take for Bronson to produce all documents and information relevant to the Bond Hearing. It is now apparent, after finally receiving the first round of requested information and documents from Bronson, just days prior to this motion and days ahead of the Bond Hearing, that Plaintiff requires further information to adequately support its position at the Bond Hearing. 39. Bronson’s RFP Production includes documents responsive to Plaintiff’s First RFP request No. 40 which includes contracts and agreements between BRONSON and various 3rd parties to purchase the subject property. 40. As discussed above, the Court’s Order on Motion to Compel denied without prejudice, Plaintiff’s First RFP requests 36-39, which each request correspondence related to any contract or agreement between BRONSON and any person, to purchase the subject property. Plaintiff believes that the information requested in 36-39 could lead evidence essential to Plaintiff’s position at the Bond Hearing. 41. Plaintiff will be prejudiced at the bond hearing if not given an opportunity to pursue production of the information sought in Plaintiff’s First RFP request 36-39. 42. Further, along with the information Plaintiff may receive from the further requested information discussed in the previous paragraph, Plaintiff is in the process of reviewing and analyzing the voluminous RFP Production which may contain information that Plaintiff wishes to include as Exhibits for the bond hearing. 43. Furthermore, Plaintiff requires more time to fully review Bronson’s recently served Privilege Log to first, determine whether or not certain categories of documents were properly withheld for privilege and second, whether such documents are relevant to the Bond Hearing. 44. As such Plaintiff requests a continuance of the Bond Hearing to allow further discovery in line with Court’s Order on Motion to Compel, time to properly vet Bronson’s Privilege Log, leave of the Court to amend its Witness and Exhibit Disclosures to include further documents as exhibits received in Bronson’s RFP Production and that may revealed through further discovery and possible further expert witness(es) to confront the new information provided in the Duces Tecum Production. WHEREFORE, Plaintiff respectfully requests that this Honorable Court continue the hearing set for January 31, 2023 to determine the amount of the bond, if any, for 60 days to allow Plaintiff to pursue further discovery in line with this Court’s Order on Motion to Compel; for leave of Court to amend the Scheduling Order; and for such other relief as is just and proper. DATED this 25th day of January, 2023. GREENSPOON MARDER LLP Attorneys for Defendant/Counter-Plaintiff 201 East Pine Street, Suite 500 Orlando, FL 32801 Phone: 407-425-6559 Fax: 407-563-9665 E-mail: Edmund.Loos@gmlaw.com E-mail: Patrick.Hennessey@gmlaw.com E-mail 2: Tami.Austin@gmlaw.com E-mail 2: Eric.Cruz@gmlaw.com E-mail 3: chad.tamaroff@gmlaw.com E-mail 3: agatha.mctier@gmlaw.com By: /s/ Edmund O. Loos III EDMUND O. LOOS, III, Esq. Florida Bar No.: 899161 PATRICK J. HENNESSEY JR, Esq. Florida Bar No.: 0106964 CHAD J. TAMAROFF, Esq. Florida Bar No. 163368 Counsel for Plaintiff ELEVATION DEVELOPMENT II, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 25, 2023, I electronically filed the foregoing document with the Clerk of Court by using the Florida Court’s E-Filing Portal, which will send a Notification of Electronic Filing along with a true and correct copy of the foregoing document to Todd Norman, Esq., Shaina Stahl, Esq., Counsel for Defendant, (todd.norman@nelsonmullins.com, shaina.stahl@nelsonmullins.com, shawana.watt@nelsonmullins.com, and katherine.reynolds@nelsonmullins.com). /s/ Edmund O. Loos III EDMUND O. LOOS Filing # 165204684 E-Filed 01/23/2023 09:13:40 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ELEVATION DEVELOPMENT II, LLC, a Florida limited liability company, Plaintiff, Case No. 2021-CA-001956 V. BRONSON FAMILY LIMITED PARTNERSHIP, a Nevada limited partnership, Defendant. a ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL AND OVERRULE DEFENDANT BRONSON FAMILY LIMITED PARTNERSHIP’S RESPONSES AND OBJECTIONS TO REQUEST FOR PRODUCTION OF DOCUMENTS THIS MATTER came before the Court for hearing on January 6, 2022 on Plaintiffs Motion to Compel and Overrule Defendant Bronson Family Limited Partnership’s Responses and Objections to Request for Production of Documents (hereinafter referred to as the “Motion”) and the Court, having reviewed the record of this cause, having considered the argument of counsel, and being otherwise duly advised in the premises, does hereby ORDER AND ADJUDGE as follows: 1. Plaintiff's Motion is hereby GRANTED IN PART AND DENIED IN PART. 2. The Motion is GRANTED and Defendant’s objections are overruled as follows: a. As to requests 1, 2, 3, 7, 11, 12, 14-20, 22-25 and 32-34, all objections other than privilege are waived by virtue of Defendant Bronson Family Limited Partnership’s (“Defendant”) agreement to produce responsive documents. EXHIBIT A 4865-4435-0025 v.12 123975/00011, 8:14 AM, 01/14/2023 b. As to requests 4-6, and 40, the Defendant’s objections are overruled, and the Motion is granted. c. As to request 26, Defendant’s objections are overruled and the Motion is granted, subject to the request being temporally limited from January 2018 to present. a Defendant shall have until January 20, 2023 to produce all documents in compliance with this Order. 4. Defendant shall have until January 23, 2023 to serve a privilege log listing any documents withheld for privilege. a: The Motion is DENIED and Defendant’s objections are sustained as follows: a. As to requests 13, 31, and 35-39, Defendant’s “overbroad” objections are sustained, and the Motion is denied. b. As to request 36-39, the Motion is Denied without prejudice. Depending on the existence of documents responsive to request 40, Plaintiff may serve further requests for other material related to documents responsive to request 40 that are reasonably likely to lead to the discovery of admissible evidence in this case. c. As to request 27, Defendant’s “relevance” objection is sustained, and the Motion is denied. 6. The Court declines to award either party attorneys’ fees and costs incurred for bringing or defending the Motion. oa DONE AND ORDERED in Chambers at Orlando, Oscgola County, Elorida, this reey day of January, 2023. Judge Chae | | /«ee K. Alvar z 4865-4435-0025 v.1 123975/00011, @:14 AM, 01/14/2023 Copies to all Counsel of record on attached service list =—LO OKOUL fa) Quite WAL 3 9865-4435-0025 v.1 123975/00011, 8:14 AM, 01/14/2023 Patrick J. Hennessey, Jr., Esq. Vi, Capital Plaza | Greenspoon ___ Marder —— CELEBRATING 5 FORTY YEARS TOGETHER nlOrlando, easPeSeer Florida eee ase Fax: 407.422.6583 Direct Phone: 407.692.9111 Direct Fax: 954.333.4029 Email: patrick.hennessey@gmlaw.com January 18, 2023 VIA ELECTRONIC MAIL (division20b@ocnijcc.org) The Honorable Judge Chad K. Alvaro Jon B. Morgan Osceola County Courthouse 2 Courthouse Square, Room 5-E Kissimmee, FL 34741 Re: Elevation Development HI, LLC vs. Bronson Family Limited Partnership, ef. al. Case No. 2021-CA-001956 (9th Jud. Cir. Court, Osceola County FL) Proposed Order Granting in Part and Denying in Part Plaintiff's Motion to Compel Dear Judge Alvaro: This firm represents Plaintiff Elevation Development I], LLC, in the above referenced matter. Pursuant to the Court’s decision at the January 6, 2023 court hearing regarding Plaintiff's Motion to Compel and Overrule Defendant Bronson Family Limited Partnership’s Responses and Objections to Requests for Production of Documents, attached please find a proposed order for your Honor’s approval. Should the proposed Order meet with your approval, we respectfully request the Court promptly enter the Order prior to the upcoming deadlines in January 2023, if, the Order is not acceptable, please have your Judicial Assistant contact us to advice on the same. Very truly yours, GREENSPOON MARDER LLP /S/ Patrick J. Hennessey, Jr. Patrick J. Hennessey, Jr., Esq. ce: All Counsel of Record Atlanta Boca Raton Chicago Denver Edison Ft. Lauderdale Las Vegas Los Angeles Miarni Naples New York Orlando Pordand Scottsdale Tallahassee Tampa West Palm Beach DocuSign Envelope ID: EA2B9F44-3003-44CB-AF6B-2C23F4FB2B52 BocuSign Envelope [D: 36C717AA2-2D0A4-4555-87D1-F 385534 B6D86 STATE OF FLORIDA FLORIDA DIVISION OSCEOLA COUNTY HARBOR RESERVE Land Purchase Contract THIS LAND PURCHASE CONTRACT (this “Contract”) is made by and between D.R. Horton, Inc., a Delaware corporation (“Buyer”) and Bronson Family Limited Partnership, a Nevada limited liability partnership (“Seller”). Both parties state and acknowledge as follows: A. Seller owns approximately 120 acres of land located in Osceola County (the “County”}, Florida, as described and generally depicted graphically in ExhibitA attached hereto and incorporated herein (the “Land”), intended for development of Four Hundred Twenty-Seven (427) single family detached lots and One Hundred Eighteen (118) townhome lots (collectively, the “Lots”} out of the Land (the “Intended Use”). The Land, all rights, permits, privileges, licenses and easements appurtenant thereto, and all vegetation and improvements located thereon, are hereinafter collectively referred to as the “Property.” B. Seller desires to sell the Property to Buyer, and Buyer desires to purchase the Property from Seller. C. Seller has disclosed to Buyer that the subject Property was previously under contract (the “Prior Contract”) to sell the Property to Elevation Development Ii, LLC. (‘Elevation’), which Prior Contract was terminated by Seller due to the Buyer's failure, refusal or inability to close the transaction as and when required by the Prior Contract, and that Elevation has now commenced an action against Seller for specific performance and/or damages, as more particularly set forth in Elevation’s Complaint filed in the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida, Case Number 2021-CA-1956-OC (the “Lawsuit’). Elevation has further proceeded to file a Notice of Lis Pendens in the Public Records of Osceola County, Florida. cca te oe enttswats «sua elHEREFORE, for.and in_consideration_of the reciprocal covenants stated herein, the parties agree asfollows: 1. Conveyance. Seller shall sell and convey the Property to Buyer, and Buyer shall purchase the Property from Seller, on the terms and conditions stated herein. 2. Effective Date. The “Effective Date” means the last of the following dates: (a} the date this Contract fs executed by Buyer at the Division level (the “Local Execution Date”), (b) the date this Contract is executed by Seiler, or (c) the date of Buyer's corporate ratification, as required by Section 21 below. 3. Purchase Price. The purchase price of the Property (the “Purchase Price”) shall be Fourteen Million Four Hundred Thousand Dollars ($14,400,000). The Purchase Price shail be payable at closing on the sale and purchase of the Property (“Closing”) by delivery of immediately available funds, subject to adjustments, prorations and credits as herein provided. 4, Earnest Money. a. Initial Deposit. Within fifteen (15) business days of the Effective Date, the parties shall execute an escrow agreement in form substantially as shown by Exhibit B attached hereto and incorporated herein (the “Escrow Agreement"), whereupon Buyer shall deposit the sum of Twenty-Five Thousand Dollars ($25,000) (the “Initial Deposit") with First American Title Insurance Company (“Escrow Agent”), If Buyer fails to deliver the Initial Deposit as required herein, and such failure continues for a period of five (5) business days after written notice from Seller, then either party may terminate this Contract by written notice to the other at any time prior to the deposit of the Initial Deposit. If this Contract is so terminated, this Contract shall be deemed to have terminated as of the date that the Initial Deposit was originally to have been delivered by Buyer, and there shall be no remedy hereunder to either Seller or Buyer other than the termination of this Contract. The Escrow Agent shall deposit the amount in an escrow account with a federally insured bank, as required by the Escrow Agreement, Buyer shail determine, at Buyer’s sole and absolute discretion, whether the escrow account shall be interest-bearing; however, any interest earned on any funds held in escrow shall be for the benefit of Buyer, EXHIBIT 59013501;9 Composite B DocuSign Envelope ID: EA2B9F44-3003-44CB-AF6B-2C23F4FB2B52 DosuSign Envelope ID: 300 17A4A2-2D04-4555-B7D 1-F385534B6D86 b. Second Deposit. If Buyer delivers to Seller a Notice of Suitability, as provided in Section 10 below, then Buyer shall deposit as additional earnest money with Escrow Agent (the “Second Deposit”), no later than five (5) business days after the expiration of the Inspection Period, the sum of Two Hundred Fifty Thousand Dollars ($250,000). The Escrow Agent shall deposit the Additional Earnest Money in the escrow account described in subsection (a) above c. Disbursement of Earnest Money; Escrow Agent Duties. The Initial Deposit and the Second Deposit, any additions thereto and any proceeds thereof, together with all earnings thereon, shall be collectively referred to herein as the “Earnest Money.” Escrow Agent shall hold and disburse the Earnest Money pursuant to the terms of this Contract and the terms set forth on Exhibit B attached hereto and incorporated herein by this reference (the “Escrow Agent Standard Provisions”). Upon the request of either party, the other party shall promptly execute and deliver written instructions to the Escrow Agent to disburse the Earnest Money as required by this Contract. Upon Escrow Agent's receipt of any portion of the Earnest Money, it shall execute the form of acknowledgement attached hereto as Exhibit B-1 (the “Escrow Agent Acknowledgement”) and deliver a copy of the same to the parties, Unless otherwise set forth in this Contract, the Earnest Money shall be credited against the Purchase Price due at Closing. 5. Primary Contingencies; Definitions. a. Primary Contingencies. Buyer's obligation to close on the purchase of the Property under this Contract is contingent upon each and all of the following (collectively, the “Primary Contingencies”): i. all of Seller's warranties, representations and covenants contained in this Contract shall be and remain true, correct, complete and fully performed; . ii. all applicable governmental authorities having jurisdiction over the Property, including, without limitation, the County and the State (and their respective agencies) (collectively and as applicable, the “Governing Jurisdiction”) shall have issued the Preliminary Subdivision Plan Approval. The term ‘Preliminary Subdivision Plan Approval” or “PSP Approval’ means: (1) that the Governing Jurisdiction has issued written, final, and irrevocable approval, with all appeal periods expired, of a Preliminary Subdivision omnes em PBlan PSP") réflecting not léss than Four Hundred TWwenty-Seven (427) single farnily détached lets and One Hundred Eighteen (118) townhome lots (collectively, the “Lots”} out of the Land, on terms and conditions acceptable to Buyer, and (2) that development of the Property shall be authorized by the Governing Jurisdiction pursuant to the PSP, subject to Buyer obtaining approval of a Final Subdivision Plan and Final Plat consistent with the PSP, both of which Buyer will obtain after the Closing. Seller will have no obligation or liability for any costs or expenses for the PSP or any other entitlements whatsoever. iti. there shall have occurred no material adverse change in the physical (including environmental}, financial or fegal conditions of the Property from the conditions existing as of the Effective Date; iv. The Notice of Lis Pendens recorded with respect to Elevation’s Lawsuit shall have been discharged, with all appeal periods, if any, having expired without an appeal having been filed; v. there are no Notices of Lis Pendens encumbering the Property recorded in the Public Records; and - vi. Seller shall be ready, willing and able to deliver good and marketable title (as defined in . Section 8 below) to the Property to Buyer, and Buyer's title insurer (the “Title Company”) shail be prepared to issue a standard ALTA owner's form title policy insuring good and marketable fee simple title to the Property with a liability limit in the amount of the Purchase Price at standard premium rates, without any Schedule B- T Requirements or Schedule B-IT Exceptions related to the Lawsuit, the lawsuit filed by David Bronson against the Seller (the “Internal Lawsuit”), or any other lawsuits. b. Should any of the Primary Contingencies not be satisfied or waived in writing by Buyer within 30 days of the Effective Date (“Primary Contingency Deadline”), then Buyer, at its option, may in its sole discretion, terminate this Contract prior to the expiration of the Primary Contingency Deadline by giving written Notice to Seller (“Termination Notice”), in which event, all of the Earnest Money shall be immediately refunded to Buyer, In the event Buyer fails to provide a Termination Notice within five (5) business days after the expiration of the Primary Contingency 39013501;9 DocuSign Envelope ID: EA2B9F44-3003-44CB-AF6B-2C23F4FB2B52 DocuSign Envelope ID: 3CC17AA2-2D0A4-4555-B7D 1-F385534B6D86 Deadline, Seller may send written notice requesting Buyer terminate the Contract, extend the Primary Contingency Deadline, or waive the outstanding Primary Contingencies (‘Selier’s Election Notice”). Buyer shall have ten (10) business days after receipt of Seller’s Election Notice to provide written notice of Buyer’s election. If Buyer fails to make a timely election, this Contract shall automatically terminate upon the release of the Earnest Money Deposit to Buyer and the parties shall be released from further obligation hereunder except those which expressly survive termination: c Mutual Cooperation, Seller and Buyer will each cooperate with each other, their employees, and agents, in a reasonable and timely fashion in the execution of such documents and instruments as may be required to effectuate the transaction herein envisioned and to facilitate the purpose and intent of this Contract. d. Seller Consents and Authorizations. Seller consents to Buyer's submission prior to the Closing of all additional permits, approvals, and entitlements (“Additional Approvals”) for elements of the Intended Use for review by and approval of all governmental agencies having jurisdiction. The Additional Approvals shall be at Buyer’s sole cost and expense and at no cost or expense to Seller. Seller shall reasonably cooperate with and actively support Buyer's efforts to obtain the Additional Approvals. Such cooperation and support by Seller shall include, without limitation, consent to, execution and submission to governmental agencies of any letters, applications, petitions, requests or other documents reasonably requested by Buyer within seven (7) days after receipt thereof by Seller, (collectively “Consents and Authorizations”). 6. Closing and Possession, Subject to the termination rights in Section 25, Closing shail be held on the date (“Closing Date”) that is thirty (30) days after the later to occur of (a) Buyer delivers to Seller a Notice of Suitability, and (b) the date on which all of the Primary Contingencies have been either satisfied or expressly waived in writing by Buyer; provided that Closing must take place on a Tuesday, Wednesday or Thursday that is a business day (a “Permitted Closing Day”), and may be extended no more than an additional five (5) days in order to be scheduled on one of those days of the week. Closing shall be held at a time, date and location designated by Buyer. At Closing, Seller shall deliver a special warranty deed conveying fee simple title to the Property in recordable form acceptable to Buyer in its reasonable discretion and Seller in its reasonable discretion (the “Deed”. At Closing, Seller shall also execute and deliver to Buyer a general assignment of rights against third-parties in the form of Exhibit D attached hereto and incorporated herein, and specific assignments of any Seller Entitlements (defined below) that Buyer desires sorrento assume, inciding-any-consents-tosuch-assignments from the applicable authority-if-required: Seller-shalt-deliver—---——~--~ --- exclusive possession of the Property to Buyer at Closing. 7. Closing Costs and Prorations. Seller shall pay the state documentary stamp tax, the cost of satisfaction of any liens on the Property, Seller’s attorneys’ fees and all other expenses incurred by Seller related to Closing. Buyer shall pay Buyer's attorneys’ fees, the cost of any title search, the cost of Buyer’s survey, the premiums and cost for preparation and issuance of an owner’s titie insurance policy, and all costs pertaining to the PSP and any other entitlements pertaining to the Property, and any and all costs and expenses pertaining to any tests, reports, inspection or due diligence ordered or obtained by Buyer. Ad valorem taxes on the Property for the tax year of Closing shall be prorated between Seller and Buyer as of Closing based on the latest assessment available. Should such proration be inaccurate based on the actual ad valorem tax bill when received, either party shall be entitled, upon demand, to adjustment of the proration and corresponding reimbursement from the other party. Seller shall be solely responsible for any deferred or past due taxes. The provisions of this Section shall survive Closing, 8. Conveyance of Title. At Closing, Seller shall convey good and marketable title to the Property to Buyer pursuant to the Deed. As used in this Contract, “good and marketable title” shall mean fee simple title that is free and clear of all liens, encumbrances, leases, licenses, and other occupancy agreements and arrangements, and other exceptions to title and rights of others except those Permitted Exceptions listed on Exhibit E attached hereto and incorporated herein. Buyer shall examine title to the Property and give written notice to Seller of any objections that Buyer may have pricr to the expiration of the Inspection Period (the “Initial Objection to Title Notice”). Within ten (10) days after receipt of the Initial Objection to Title Notice, Seller shall provide written notice to Buyer whether Seller will cure any such objections or refuse to cure such objections. Failure by Seller to give written notice of its election within ten (16) days after receipt of the Initial Objection to Title Notice shall be deemed an election by Seller not to cure the objections. In the event Seller elects, or is deemed to have elected, not to cure any objections, then Buyer shall have the right to elect either: (a) to waive the unsatisfied objections and proceed with Closing, or (b) to terminate this Contract in its entirety and receive an immediate refund of the Earnest Money. Failure by Buyer to give written notice of its election within ten (10) days after Seller’s election or deemed election shall constitute an election by Buyer to terminate this Contract and receive an immediate refund of the Earnest Money. In the event Seller elects to cure the objections, Seller shall have thirty (30) days from the date of the notice to cure all such objections, at Seller's sole cost, The Closing shall be delayed during and extended for any such cure period. If Seller fails for any reason to cure 59013501;9 DocuSign Envelope ID: EA2B9F44-3003-44CB-AF6B-2C23F4FB2B52 DocuSign Envelope ID; 3CC17AA2-2D0A-4555-B7D1-F385534B6D86 the objections within thirty (30) days, then, in addition to any rights and remedies which Buyer may have pursuant to Section 15, Buyer may: (1) waive the unsatisfied objections and complete the purchase of all portions of the Property scheduled for Closing, including those subject to the unsatisfied objections, or (2) terminate this Contract in its entirety and receive an immediate refund of the Earnest Money. Any objections that are waived in writing by Buyer, or deemed to be waived by Buyer pursuant to this Section 8, shall become “Permitted Exceptions.” Notwithstanding anything to the contrary contained herein, Seller shall be obligated to remove any exception that can be cured by the payment of a fixed or determinable sum of money such as a deed of trust, mortgage, deferred tax or confirmed assessment, but excluding any claim or liens which are the result of any actions or omission of the Buyer (collectively, “Monetary Liens”). Buyer may re-examine title up to Closing and give written notice to Seller of any objections that Buyer may have as to matters first appearing of record subsequent to Buyer's Initial Objection to Title Notice, as to matters that did not exist or were not of public record as of the Effective Date, which new title objections shall be addressed as set forth above. At Closing, Selter shall execute an Owner's Affidavit and any other affidavits, certificates and documents reasonably required by Buyer or the Title Company to deliver title as required by this Contract. 9. Buyer's Survey. Prior to the end of the Inspection Period, Buyer may obtain at its expense an ALTA survey of the Property. If Buyer obtains a survey, Buyer shall provide Seller with a copy of a plat of the survey, and the legal description of the Property in the Deed shall include a metes and bounds description of the Property derived from the Buyer's survey. Within fifteen (15) days after delivery of the plat of survey to Seiler, Seller shall notify Buyer in writing of any objection to the Buyer's survey. If a notice of objection is not timely received, the Buyer's survey shall be deemed accepted by Seller. If Seller objects to the Buyer’s survey, then Seller’s objection shall be referred to a panel of three (3) surveyors, one of which shail be selected by the Seller, one of which shall be selected by the Buyer and the third of which shall be selected by the surveyors selected by the Seller and Buyer. The costs of the three (3) surveyors shall ; be borne by the party who the surveyors rule against. The ruling of the panel of the surveyors shall be binding. ; Notwithstanding anything contained in this Section 9, or anything else contained in the Contract, the Purchase Price stated herein is a fixed price and is not based upon the acreage of the Property or any other amount of land or quantity of iots. 10, Inspection Period. we mecmerennemenns meen nmnnnnnen ~~-ay- 7 Buration: “The“Inspection Period” ts the period-of-time-beginning-with-the Effective Bate-and----— nn ending at 11:59 p.m. on the earlier of (i) the date that is thirty (30) days later, and (ii) the date that is sixty (60) days after the Local Execution Date. b. Rights and Obligations. From the Local Execution Date through Closing, Buyer may enter upon the Property to inspect and examine the Property and to perform whatever tests and studies of the Property Buyer deems necessary or appropriate. Seller shall cooperate with Buyer in its entry upon, and its inspections, tests, examinations and studies of, the Property. Buyer shall indemnify Seller for any and all claims of bodily injury or damage to property (including the Property itself) arising out of Buyer's inspections of the Property. Buyer shall also indemnify Seller for liens which may be filed against the Property by persons or entities employed or contracted by Buyer to perform inspections of the Property. However, Buyer's indemnity of Seller shall not cover or apply to: (1) any loss, cost or expense arising or resulting from acts or omissions of Seller, (2) any diminution in the value of the Property arising or resulting from matters discovered by Buyer during its investigations of the Property, (3) any latent defects in the Property discovered by Buyer, or (4) the release or spread of any Hazardous Substance discovered, but not deposited, by Buyer on or under the Property. Buyer’s Indemnity of Seller pursuant to this subsection b shall survive Closing or any earlier termination of this Contract for a period of one (1) year. c. Notice of Suitability. The results of all inspections, tests, examinations and studies of the Property performed during the Inspection Period must be suitable to Buyer, in its sole and absolute discretion. Prior to the expiration of the Inspection Period, Buyer may notify Seller that such results are suitable to Buyer by delivering to Seller a written Notice of Suitability (the “Notice of Suitability’) signed by one of the executive officers of Buyer listed in Section 21 below (collectively, the “Authorized Officers”), No such Notice of Suitability shall be valid and effective unless signed by one of the Authorized Officers. If Buyer fails for any reason to send Seller the Notice of Suitability by the end of the Inspection Period, and such failure continues for a period of ten (10) days after written notice from Seller, this Contract shall automatically terminate. Also, if Buyer notifies Seller in writing at any time prior to issuance of a Notice of Suitability that the results of its inspections, tests, examinations or studies are not suitable to Buyer, then this Contract shall automatically terminate. Upon such termination, Buyer shall be entitled to an immediate refund of all Earnest Money then held by the Escrow Agent, and thereafter neither party shall have any further obligation to the other hereunder, except such obligations that survive termination by express provision herein.