Preview
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THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR THE COUNTY OF SARASOTA, FLORIDA
CASE NO. 2011-CA-003897-NC
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McCANN HOLDINGS, LTD.,
Plaintiff, <
vs. (5
—
SDC COMMUNITIES, INC., iY
VOTT-A, LLC, VOTT-B, LLC,
VOTT-C, LLC, VOTT-D, LLC, O
HENRY RODRIGUEZ, and
RANDALL BENDERSON,
Defendants.
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TRANSCRIPT OF PROCEEDINGS
VOLUME XVIII OF XIX
BEFORE: THE HONORABLE PETER A. DUBENSKY
PLACE: Judge Lynn N. Silvertooth
Judicial Center
2002 Ringling Boulevard
Courtroom 6A
Sarasota, Florida 34237
REPORTER: Theresa Farina-~Meiser, RMR, FPR
Court Reporter
DATE: March 13, 2015 (Afternoon Session)
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APPEARANCES:
STEVEN D. HUTTON, Esquire
PRZEMYSLAW L. DOMINKO, Esquire
Steven D. Hutton, P.L.
240 South Pineapple Avenue
Suite 801
Sarasota, Florida 34236
On Behalf of the Plaintiff
MORGAN R. BENTLEY, Esquire
KEVIN R. BRUNING, ESquire
Bentley & Bruning, P.A.
783 South Orange Avenue
Suite 220
Sarasota, Florida 34236
On Behalf of the Defendants
SDC Communities and Henry Rodriguez
STEVEN J. CHASE, Esquire
HUNTER G. NORTON, ESquire
Shumaker, Loop & Kendrick, LLP
240 South Pineapple Avenue
Tenth Floor
Sarasota, Florida 34236
On Behalf of Defendants VOTT-A-VOTT-D, LLC
and Randall Benderson
EDWARD VOGLER, III, Esquire
Vogler Ashton, PLLC
2411-A Manatee Avenue West
Bradenton, Florida, 34205
Co-Counsel on Behalf of VOTT-A-VOTT-D, LLC
and Randall Benderson
ALSO PRESENT: DAVID BALDAUF, Esquire
* * *
INDEX OF PROCEEDINGS © PAGE
VOLUME XVIII
CLOSING STATEMENTS
Mr. Bentley 2505
Mr. Hutton Rebuttal 2545
Further Jury Instructions 2552
Jury Deliberations 2557
INDEX OF EXHIBITS VOLUME XVIII
(No Exhibits or Attachments.)
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A F T ERNOON S Es 8S ION
THE COURT: Are you ready?
MR. BENTLEY: Yes, sir.
THE COURT: Okay.
(The jury enters the courtroom. )
THE COURT: All right. Folks, have a seat,
please.
Mr. Bentley.
MR. BENTLEY: Thank you, your Honor.
Good afternoon. Welcome back. You're
almost done. Just like at voir dire and just
like at opening statements, I agree with Mr.
Hutton, there is a fundamental right that is at
issue here and, that right is the right to be
heard, is the right to go and raise objections at
a public hearing; it's the right to say I think
this is going to affect my property, maybe it's
not going to affect your property, but I think
it's going to affect my property. It's the right
to say there's something coming up, it's going to
change a lot of things and I'm worried about it.
That's a right. That's the right that's at issue
in this case.
And the Court has already instructed you,
but I highlighted it for you, when you take these
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1 back, this is on count eight, which has to do
2 with interference with the McCann-County
3 relationship, and what the Court has instructed
4 you -- and I shouldn't have used pink -- what it
5 says here is, "However, another person is
6 entitled to advance his, her or its own financial
] interest so long as he, she or it has proper
8 reason or motive and he, she or it uses proper
9 : methods." This instruction goes on to tell you
10 what those proper methods are, who interferes,
11 "One who interferes only out of spite, or to do
12 injury to others, or for other bad motive, has no
13 justification, and the interference is improper."
14 | And then the instruction tells you exactly what
15 that means, "But one who uses misrepresentations,
16 illegal conduct or threats of illegal conduct has
17 no privilege to use those methods, and
18 interference using such methods is improper."
19 That's what the rule is.
20 There's no question in this case, no
21 credible argument that can be made that Mr.
22 Rodriguez or SDC acted only out of spite, or only
23 to do injury to others, or because of illegal
24 conduct or anything of the kind. What this case
6 25 rests on is the one phrase in here that says,
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"But one who uses misrepresentations." That's
why they spent so much time talking about well,
Mr. Rodriguez was wrong about this, so he
couldn't have possibly believed that.
And they make the pretextual argument and
they say everything that happened in this case,
everything you've heard, from the e-mails going
back to June, to e-mails in July, to all the
e-mails in October that went on and on and on,
they're all pretextual; the e-mail with Mr.
Benderson was pretextual, it was made up, it was
all made up. That's why they spent so much time
doing it because that's the only excuse to get
them around the fact that Mr. Rodriguez and SDC
had a privilege to do what they did; they hada
fundamental right to do what they did.
And when I stood here nine days ago, I never
said Mr. Rodriguez never objected. That's the
first thing I said to you is I said, what you're
going to hear in this case is that Mr. Rodriguez
objected a lot, and I think that's one thing we
can all agree on is that that's the evidence in
this case.
But that's not, and I told you then, that's
not the issue in the case. Now you know what the
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issue in the case is. It's not whether or not
Mr. Rodriguez objected, it's whether he used
misrepresentations when he made those objections.
Okay?
Now, the phrase "Misrepresentation" needs a
little clarification. These are not mistakes.
Misrepresentations means intentional
misrepresentations, intentional
misrepresentations, lies.
Now, there are basically four or five Mr.
Hutton is focused on in his opening, and I'm
going to address them at the start of this. The
first one has to do -- the four of them are the
hundred and ten acres, there's the issue of
traffic, there's the issue of density and
intensity bonuses, and there's the issue of form-
based code, and on every one of them, Mr. Hutton
went through and tried to explain to you why
there is no possible way Mr. Rodriguez could have
believed that his objections were valid because
planning staff disagreed with him.
Okay. I'm going to go through that in a
second, but I want to start with this -- oh,
there's one more, there were five, actually --
and that Ray Rodriguez couldn't have possibly
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said to him that there was not going to be retail
on the McCann property, and I'm going to deal
with all five of those in order.
But the point is, is that keep in mind the
decision is not whether or not Mr. Rodriguez was
right or wrong about these issues, it's whether
he was intentionally misrepresenting these
issues, and our point is this, is that whether
Mr. Culverhouse agrees. Just because Mr.
Culverhouse says, Henry, you don't know what
you're talking about, or even if Mr. Benderson
says, Henry, you don't know what you're talking
about makes not a whit of difference, not one.
Mr. Culverhouse isn't the end of the story;
staff isn't the end of the story; Justin Powell
isn't the end of the story; Jim Paulmann isn't
the end of the story. The end of the story is
Mr. Rodriguez and his concerns about his
interests. That's what this story is about.
Let's talk a little bit about those
interests. A hundred and ten acres, the hundred
and ten acres issue has come up from the
beginning, and you'll remember nine days ago I
said it was in, it was out, it was in, it was
out. I didn't tell you the rest of the story,
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which is, it went back in again. You'll remember
the ORC Report, and I hope you'll never have to
hear that phrase again, but the ORC Report, the
very first issue in the ORC Report, number one in
the ORC Report -- and you're going to have the
ORC Report back there with you so you can read it
yourself, it's an SDC exhibit, and you can flip
through it and verify what I'm about to tell
you -~ the number one objection in the ORC Report
was hey, Sarasota County, when you submitted your
BEZ plan, it included all this acreage, and now
this hundred and ten acres doesn't appear to be
in it anymore. So basically, the DCA was saying
put it back in.
That caused a problem, and you saw Mr.
Powell sent a letter to Mr. Polk saying I'm going
to take the hundred and ten acres back out of the
BEEZ. So staff, and this would be funny if it
weren't so serious, their response in the
Planning Commission or the Planning Staff Report
that Mr. Hutton has cited to you over and over
and over again, you know what their response was
on the hundred and ten acres that Mr. Powell had
just taken out the week before? Their answer to
the ORC Report was put it back in again. That
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was staff's answer to that problem is well, we'll
Just put it back in again.
So the whole issue of the hundred and ten
acres wasn't even resolved in the planning report
that Mr. Hutton keeps citing to as proof that Mr.
Rodriguez didn't know what he was talking about.
That hundred and ten acres had been taken out by
Mr. Powell eight days before. So how on earth is
planning staff telling DCA we're going to put the
hundred and ten acres back in again? It was
still an issue. But, again, it doesn't matter
it's right or it's wrong, we think Mr. Rodriguez
was absolutely right on that issue, not that he
was mistaken, he was right.
The second issue, they want to talk about
the traffic issue, and they point to the Staff
Report again and they say well, look, the Staff
Report adequately addressed the traffic issue,
nothing to worry about, nothing to see here,
everybody move on. Mr. Rodriguez was totally
mistaken, couldn't have possibly thought there
was a traffic issue.
Well, the rest of the story is in the ORC
Report is a report from the Florida Department of
Transportation, and what do they say? They Say,
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you used the wrong numbers. They say the
Planning Staff Report says oh, it's going to have
a net decrease in numbers. FDOT says that
doesn't look right to us, we have real serious
reservations about the methodology that you have
used in this traffic study, and that was an issue
for Sarasota County Planning Staff to address,
and this is how they addressed it. This was also
out of the Planning Commission or the Planning
Staff Report, and you've seen this exhibit a
number of times. And how did- they f1x it? Right
there. That one little number made all the
difference, is instead of 1.5 million square feet
office, medical office park, they said we're
going to have 1.5 million square feet of
industrial. If you use industrial, you use this
code, and it results in 8,000 trips a day.
Well, what did Doctor DePew tell you? Their
expert said if you use the right code, which is
medical office, that number, 8,000, is going to
be five to six times higher. And if that number
is five to six times higher, you don't have
negative 5,000 trips per day, you have positive
35,000 trips a day. That's the issue.
And here's the irony of all this, is that
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1.5 million square feet of industrial, from the
very beginning of this case they have painted a
picture of anything but industrial uses; it's
going to be Jackson Lab, it's going to be people
in electric carts; it's going to be medical
office buildings. Every single thing they've
described to you is not industrial, probably
because no one wants 1.5 million square feet of
industrial in their backyard. But what they've
told you this is going to be is not that, and if
you put in the right number, according to their
expert, for what they've described as their
project, then your traffic goes up by a factor of
five to six times.
Now, you say, so what? You've heard Mr.
Hutton say so what, he's vested for his traffic.
Well, the rest of the story is not quite so fast,
my friend. He and this man right here had an
agreement, a developers' agreement. When Mr.
Benderson bought Mr. Rodriguez's property, the
burden of building out all the roadway systems
fell on Mr. Rodriguez.
And you heard Mr. Benderson, he was on the
stand, and he was asked by Mr. Hutton, he said,
what's the -- you didn't care about traffic, and
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Mr. Benderson said no, I really didn't care about
the traffic because, you know, it wasn't my
problem. He actually said it's easy for me to
say, I don't have to pay for it. That's what Mr.
Benderson said. So, of course he didn't care
about the traffic; it wasn't coming out of his
pocket, it was coming out of his pocket.
You also heard that just the one road alone
that already had to be built was going to be
S6 million. $6 million to build one road. That
was Mr. Rodriguez's responsibility. If this
traffic report was wrong, and you heard about not
only what I just talked about, you also heard
things like Honore had to be extended down to
Laurel -- that might have gotten lost in the
weeds a little bit -- but the traffic report
rested on an assumption that Honore was going to
be built all the way to Laurel. And Mr.
Rodriguez raised his hand and he said, I don't
believe that's going to happen, and everyone
pooh-poohed him and said, Henry, you don't know
what you're talking about; Henry, you're just
being Henry. And guess what, Honore is not built
today. Henry was right.
The other thing that that traffic report
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assumed that there was going to be an interchange
at I-75 and 681, and that was one of the things
that FDOT flagged and said umm, you know, let's
hold on here. We don't see any interchange in
the 2030 Plan is what they call it in the
report -- you'll have it, you can read it for
yourself -- and you have to redo your traffic
study assuming no interchange.
Well, now think about what Mr. Rodriguez is
staring down the pipe of. Not only does he have
to pay $6 million for one road, not only would he
potentially have to build out other off-site
improvements, there might be -- and Mr. Powell
and Mr. Paulmann and everybody agreed that even
though it was a very slight possibility, it was
still a possibility that a full interchange would
have to be built at 681 and I-75. Now, if it's
not your money, you can say to yourself well, if
there's only a five percent chance of having to
build an interchange, I'm willing to take that
risk.
Mr. Benderson was probably willing to take
that risk and say ahh, I got a 95 percent chance
of being right, not my money. Mr. Powell, he was
going to take that risk, ahh, it's only five
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1 percent probability, maybe lower. It's not his
2 money. Jim Paulmann, he's willing to take the
3 risk, it's not his money either; and staff
4 certainly wasn't going to pay for it. The only
5 person in this courtroom, the only person in this
6 trial who was on the hook for those traffic costs
7 was Henry Rodriguez.
8 So for everyone to sit around and tell Henry
9 he didn't know what he was talking about, they
10 ought to stand in his shoes for a second, and
11 that's the point of all this is it's a bit
12 offensive to be told by a bunch of people that
13 you don't know what you're talking about when
14 you're looking at that Kind of liability, at that
15 kind of exposure.
16 You've gathered that Mr. Rodriguez is not of
17 the level of the other two developers here. This
18 is all he had. That's what he said on the stand,
19 this is all I've got is this 220 acres. So these
20 were all very important issues for him. And I
21 don't think anyone in their heart of hearts
22 really believes that it wasn't an important issue
23 for Mr. Rodriguez, that he wasn't borderline
24 scared out of his mind in October of 2010. So
© 25 that's the traffic issue.
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1 He also raised the issue of density and
2 intensity bonuses and he was told -- again, Mr.
3 Hutton points to the Staff Report and says well,
4 don't worry, they've answered that. Look at the
5 Staff Report. How did they answer it? They
6 answered it by saying we'll deal with it later.
7 That's not an answer, that's a punt.
8 And here's the funny thing again, Mr.
9 Rodriguez was right. They, the legislature, did
10 not pass density and intensity bonuses until the
11 year 2011. So when we're sitting here, in
12 October of 2010, and Mr. Rodriguez's head is
13 popping off about all these issues and everyone
14 is telling him oh, Henry, don't worry about it,
15 you're wrong, you don't know what you're talking
16 about, guess what, he was right. He was right.
17 Mr. Culverhouse wasn't right; Mr. Powell wasn't
18 right; Mr. Paulmann wasn't right; Henry was
19 right.
20 And the last thing is the form-based codes
21 and this is just, this kind of sticks with me
22 because the fact that it's still being talked
23 about is, it's an Alice in Wonderland moment.
24 The argument that the plaintiff is making is that
© 25 somehow the idea of form-based codes should have
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been a nonissue to Henry Rodriguez. And where is
that planning report?
THE COURT: The ORC Report?
MR. BENTLEY: No, 433. But the issue with
the planning, with the form-based codes, Mr.
Hutton points to it and says well, this only
applies to Sub Area Planning l. Read the ORC
Report. I'm sorry, I have it. It was here the
whole time.
Read the ORC Report. The ORC Report says,
on page five and six -- you'll have it back in
your room, you can read it for yourself --
starting on page five, going on to page six, it
specifically says that "There are no meaningful
and predictable nor included standards or
criteria for implementation of the form-based
codes. The County application should be required
to show those codes for the Energy Economic
Zone." The Energy Economic Zone. It's not
limited to McCann's property.
Remember, the Energy Economic Zone includes
four properties. It includes the County
landfill, not the dump, but the landfill is what
we call it these days, the McCann property, the
VOTT property and the SDC property. That's the
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Energy Economic Zone. So in the ORC Report, DCA
is saying to Sarasota County, you've got to come
up with form-based codes for the whole EEZ area.
Again, putting yourself in Mr. Rodriguez's
shoes, he's hearing staff say don't worry, it's
only on McCann property; he's reading the ORC
Report and it says it's the whole EEZ. Did he
really care, as Mr. Hutton points out? No. If
it was on McCann's property, he didn't care. The
problem was, nobody really knew for sure because
the ORC Report said something different than what
staff was saying.
And that's all Mr. Rodriguez wanted. Read
the e-mails. What he's saying is, I don't care
about form-based codes, I just want to make sure
they're not on my property, and this is why he
was concerned about them being on his property.
Mr. Hutton would lead you to believe that there
wasn't a reason in the world, not a reason on the
planet that he should be concerned about
form-based codes. Page five and six of the ORC
Report, that's why he was concerned about
form-based codes.
And lastly, there's been some suggestion
about Ray Rodriguez, and there was an argument
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made at the outset that well, Henry was up in
Georgia and wasn't paying any attention. Well,
let's back up a little bit. Remember that this
started, this whole EEZ started with Henry
Rodriguez. He flew to California, he and his
brother with Jim Paulmann, years ago. He was
instrumental in helping push it across the goal
line in the Florida legislature. His brother and
Mr. Powell and Mr. Paulmann lobbied the
legislature to get the BEEZ brought to Sarasota
County, as well as it went to Miami that you've
heard, and he brought it to Sarasota County and
he entered into it. And everything you've seen,
every single e-mail, every single piece of
testimony, even the stuff that they want to paint
as bad, in every single one of them Mr. Rodriguez
is just saying I really want the EEZ to work, I
want it to go forward. Not once did he ask for a
denial, not one single time.
So this issue with Ray Rodriguez, he was in
Georgia, but his brother was the chair of the
stakeholder group. His brother Ray, the one who
went to California and he went to Tallahassee, he
was actually the chair of the stakeholder group
that was working on the EEZ with Mr. Powell and
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1 Mr. Paulmann.
2 So when he tells his brother that the deal
3 was ~- and Mr. Hutton cited the e-mail for you --
4 he tells his brother Henry that the whole time
5 the plan was that the retail was going to go on
6 the Benderson property and the office was going
] to go on the McCann property, that's all Mr. Ray
8 Rodriguez was Saying to his brother Henry. So
9 the idea is not was Ray Rodriguez right or wrong,
10 it's what did Henry know when he wrote the
11 e-mail, and what he knew was that his brother
12 Ray, who had been chair of the stakeholder group
13 told him hey, I thought the deal was that all the
14 retail was going to go on Benderson's property
15 and all the office was going to go on Culverhouse
16 property. Was he wrong about that? Maybe.
17 Frankly, I don't know. Nobody knows. You know,
18 maybe that was a deal. We don't know.
19 The problem is, it's irrelevant. It's not
20 relevant whether Ray Rodriguez was right or
21 wrong, what's relevant is what did Henry
22 Rodriguez have between his ears when he wrote the
23 e-mail, and what he had between his ears were the
24 words of his brother Ray that just said ten
© 25 minutes before, I thought the deal was that all
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the retail was going to go on the Benderson
property. And that takes us back to the
chronology is if you think about the maps that
were shown -- can I use your map?
MR. HUTTON: sure.
(Pause in proceedings.)
MR. BENTLEY: They show you the map from
Wilson Miller in December of 2009, and what it
said is, they point to the bottom corner where it
says, "Retail/Commercial" and they say well, how
could Ray Rodriguez have possibly thought that
there was going to be retail only on the
Benderson property when this map says
"Retail/Office Commercial"? Well, because that's
a bunch of categories, and Ray Rodriguez's
understanding, as relayed to his brother was,
yes, that's what it says, but the deal is that
the retail is going to go here and the office is
going to go there.
And it wasn't until the May Planning
Commission -- remember, the whole time, even on
this e-mail, even on this map, I mean, I should
say, where it says, right here, this is what they
point to, to say that Ray Rodriguez was
absolutely out of his mind, they say retail/
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office/residential. So it could have been any of
those number of things. And they say, they point
to that and say well, obviously, he knew there is
retail. No. That's the point is that Ray
Rodriguez was relaying that he thought that the
office and residential would go here and the
retail would go down here. Was he right or
wrong? It doesn't matter, but that's what he
did.
So moving forward, you'll remember the whole
time, everything that's been submitted to you, it
said 1.5 million square feet of industrial,
250,000 square feet of commercial and 1900 homes,
until the Planning Commission in May of 2010.
And on the Planning Commission, no one really
knew why. I asked every witness that came up,
and you guys probably wondered why I kept asking
that, how did it go from 250,000 square feet of
commercial to 125,000 square feet of commercial
and 125,000 sguare feet of retail? I don't know,
and it is irrelevant.
What's relevant is is that's the point where
everything started, is once it was specifically
retail, Alicia Gayton wrote a memo to Mr.
Benderson and said oh, wait a minute, we may have
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1 a problem here. Mr. Benderson started to make
2 some calls, or whatever he was doing, and that's
3 when Mr. Culverhouse got wind of it.
4 By the way, I had to smile when I heard Mr.
5 Hutton say this was a case about unique access.
6 We all forget that the way Mr. Culverhouse heard
7 about the retail problems is because he was
8 having breakfast with Joe Barbetta. Kind of
9 ironic that now he's pointing to us as having
10 unfettered access to the commissioners, and the
11 way he learned about all this is because he was
12 having eggs with Joe Barbetta and then called
13 Nora Patterson to talk about it.
14 But the point is, is that's what started the
15 chain of events that then led to Mr. Culverhouse
16 calling Mr. Rodriguez in order to get ahold of
17 Mr. Benderson so that he could talk to Mr.
18 Culverhouse and they could work the whole retail
19 thing out. And there's nothing wrong with that.
20 It's perfectly fine. In fact, it's supportive of
21 the BEEZ.
22 Tf Mr. Rodriguez wanted to kill the EEZ, he
23 could have just said I'm not going to call Randy.
24 You guys just work it out yourselves and fight to
© 25 the death. But he didn't do that. And the irony
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here is that the acts of support that Mr.
Rodriguez gave to the EEZ are the very acts that
they're pointing to as being pretextual proof of
some conspiracy. It is Alice in Wonderland.
They point to these e-mails where Henry is
Saying let's keep working on the EEZ and say aha,
that is proof of a conspiracy. They point to the
e-mail with Mr. Benderson that says let's agree
to disagree. They say aha, that's proof of
conspiracy. It's whack-a-mole. It doesn't make
any sense.
So those are the five issues that Mr. Hutton
and Mr. Culverhouse are leading you to believe
were intentional misrepresentations by Henry
Rodriguez. I would submit to you that the
evidence in this case is, I think is clear that
Mr. Rodriguez was right. He wasn't even wrong,
he was actually right about all these issues.
But whether he was right or wrong is irrelevant.
The question is were there issues and did he talk
about them, and if that's what he did, he was
absolutely privileged to do so. That's his
right. That's everybody's right.
Now, one of the things that happens at the
outset of these trials is we all stand up, Mr.
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Hutton, Mr. Chase, me, and we tell you, we make
some statements about what we think the evidence
is going to show, and then we build our case off
of that and we tell a story; and then the
evidence comes in and we all keep our fingers
crossed that the evidence comes in the way we
said it was going to come in, and it's always a
little awkward when it doesn't. In this case,
there were a lot of issues that were raised at
opening statement. I want to focus on three of
them.
The first one was that you were told -- and
this was a centerpiece of the argument that was
made then, it's not really the argument that's
being made now, but back then, the centerpiece of
the argument was and the quote is that this was
"The one and only Comp Plan that got deferred
since 1997." That was the centerpiece. They
said we're going to put an expert on and he's
going to tell you this is the only Comp Plan
that's been deferred since 1997.
That turned out not to be true. In fact, in
2010, there was a Comp Plan deferral into the
next Comp Plan cycle, just like this Comp Plan
was deferred into the next Comp Plan cycle,
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County-initiated, Planning Commission approval,
DCA ORC Report, planning staff approval, and it
was deferred six months, six months before this
one was. So the idea that this was the one and
only deferral in the history of Sarasota County
just turned out not to be right.
But there was even more in that report. And
I'll make this comment about Doctor DePew is, if
Doctor DePew -- on this list that you'll have in
the room with you, the one with the red and the
blue and the bold black and the not bold black,
count them up. There's over 600 entries on this
list, and he told you he checked 15 to 20 of
them. So I almost want to say it's not Doctor
DePew's fault because he didn't actually look,
except it's so serious because he came in here
and he told you that they made a representation
to you about something that turned out not to be
true.
Worse, not only was there a deferral of a
County-initiated Comp Plan in the same year that
this Comp Plan was deferred, there were two
denials of County-initiated Comp Plans. The
County denied their own Comp Plan in 2010, twice
in the same year. And in 2008, there was another
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one that got deferred, albeit not into the next
Comp Plan cycle, I would acknowledge; and I would
also acknowledge this because I know my friend,
Mr. Hutton, is going to say this when he gets
back up is he's going to say, you know, he was
right, except every one of those was eventually
adopted. I would agree, because those guys
brought their Comp Plans back; and if Mr.
Culverhouse had brought this Comp Plan back, I
submit to you, their own expert would say it's a
slam dunk, he's going to get his Comp Plan. All
he had to do was bring it back. So that was one
thing that was said in opening.
Another thing that was said in opening was
this is going to be a case about backroom deals,
political influence and getting things done
behind the scenes. That's definitely not true.
If there's one thing -- I don't know how you-all
feel about Mr. Rodriguez, but I think we can all
agree, he's a very public guy. There's nothing
very quiet or private about Henry Rodriguez. a
don't know how he has the time to write all these
e-mails, but the point is that he sent them to
everyone in the world. You'll have the e-mails
again. Count the number of people. There would
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1 be 28 and 30 and 25 every single time they went
2 out, and they would always go to all the planning
3 commissioners, and they'd go to staff, they'd go
4A to Mr. Powell and they'd go to Mr. Paulmann.
5 There was nothing secret going on here.
6 In fact, part of their argument, ironically
] enough, part of this argument is the fact that he
8 was so public is proof of the conspiracy, that
9 they sent all these e-mails just to be pretextual
10 and to give themselves something to hide behind.
11 That's the exact opposite of backroom deals and
12 private deals. And, again, it makes no sense.
13 It's Alice in Wonderland. It makes no sense.
14 The third thing that was said at opening and
15 was the second part of the centerpiece of their
16 case -- the first part was there's never been a
17 deferral since 1997 in any County-initiated Comp
18 Plan. That turned out not to be true. The
19 second centerpiece of their argument was this, is
20 they told you that you would hear about a 60-day
21 rule and that the 60-day rule prevented the
22 County Commission from doing what it did. That
23 turned out not to be true.
24 In fact, that turned out to be not only true
© 25 -- not true, Mr. Culverhouse candidly told you
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that he didn't even know of that rule until this
litigation started. He just added that to the
mix as part of the litigation strategy. And that
was -- I appreciate the candor on that issue.
So the 60-day rule, very quickly, was we --
Mr. Chase already touched on this a little bit --
is the Secretary of the DCA came in. First of
all, the ORC Report itself says should. It
doesn't say you shall, it says should. The
Secretary of the DCA, the man whose name is on
the ORC Report itself, Thomas G. Pelham, that's
the guy that was on the stand the other day, he
told you oh, no, that was the pattern of the --
the practice of the DCA was we didn't enforce
that rule, there's no penalty attached to it, and
it happened fairly regularly that we went past
the 60 days. So that's one.
Number two is, and you saw the tapes, so you
know how many people were at that hearing.
Again, it defies logic that if this 60-day rule
was such a big deal that you have five county
commissioners, you have the County Attorney Alan
Roddy sitting there, you've got Justin Powell
sitting there, you have Jim Paulmann, an expert
in land planning sitting there, you have John
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ol Cook, McCann's lawyer sitting there, not one
2 Single person raised their hand and said oh,
3 wait, wait, wait, wait, wait, wait, 60-day rule,
4 you can't do that. In all the e-mails that came
5 after, where people were complaining and saying
6 this should be brought back or what have you,
7 nobody raises the 60-day rule.
8 I submit to you, without sounding harsh, the
9 60-day rule is just made up. It was made up for
10 this case, and you should pay no attention to it.
11 So that's what came up in opening, and those
12 turned out not to be true.
13 So let's focus on what we've heard about
14 from the beginning. The focus 1s around this
15 July or June 23rd meeting and, again, you have to
16 look at the theory of the case and ask yourself
17 if it makes any sense. June 23rd is the start of
18 the plot, the grand conspiracy that has occurred,
19 and the plaintiff argues that on that day, Mr.
20 Benderson and Mr. Rodriguez launched a plot to
21 lock down, to lock down Mr. Culverhouse's retail
22 forever and ever and ever and then turn around
23 and take away all his land use entitlements.
24 That is, in sum and substance, Mr. Culverhouse's
© 25 case.
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Here's the problem with it: There's
several, but let's start with the first one. Tf
that is true and Mr. Benderson and Mr. Rodriguez
had the ability to take away all the land use
rights from Mr. Culverhouse, why would they go to
such efforts to limit it to 75,000 square feet?
They'd just take them all away. That's the
theory of their case, that is was ultimately what
they were going to do. So why would they send
all those e-mails back and forth, and the three
fingers, and the yelling and screaming to limit
it to the 75,000 when they could just take it all
away, anyway?
Jumping ahead, I would submit to you that's
also a fundamental problem with the entire case,
is if that power existed between Mr. Benderson
and Mr. Rodriguez, why would they have gone
through all this drama to try to object to the
FEZ, or at least Mr. Rodriguez, because Mr.
Benderson never did object to the EEZ, why would
Mr. Rodriguez go through all that? If he had the
ability to snap his fingers and get the
commissioners to do his bidding, he would have
snapped his fingers and said do my bidding. It
just doesn't make sense. It doesn't make sense.
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1 Issue number two, and this is the one --
2 again, the ironies here are not lost, and they
3 would be funny if they weren't so serious -- the
4 linchpin of the argument is that Mr. Rodriguez
5 did not sign the agreement, the VOTT agreement
6 and, therefore, was free to do what he wanted and
7 that Mr. Benderson used him as some kind of
8 guided missile to go out and kill the EEZ. Fair
9 enough. The problem with that is remember who
10 asked Henry not to sign the agreement in the
11 first place, it was Hugh Culverhouse.
12 So in order for the theory to work, Henry
13 Rodriguez would have had to have known that Hugh
14 Culverhouse -- when Henry walked into the room
15 and the agreement is on the table, an agreement
16 that has SDC's name already on it, it's already
17 on it, all Mr. Culverhouse has to do is say
18 Henry, sign right here, and SDC would have been
19 part of the VOTT agreement -- Henry would have
20 had to know that instead of doing that, Hugh
21 Culverhouse would look at him and say shoo, shoo,
22 you don't matter, the bank's going to own your
23 property in a month anyway. If Mr. Rodriguez has
24 that ability, I want him to buy my lottery
© 25 tickets this weekend. That doesn't make sense.
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It's a great story. I grant Mr. Hutton, it is a
great story. It just doesn't make sense with the
evidence that's in the case. It doesn't hang
together.
And the third thing Mr. Chase touched on, so
I won't belabor it, is it's a heck of a plot
where the plotters don't know what they want.
You've got one guy Saying it's going to last
forever and you've got another guy saying it's
over and done with, that is, the restrictions on
McCann's property. Again, it doesn't make sense.
And the last thing on that issue is just the
fundamental one that we talked about in opening
is, everybody agrees, everybody agrees that the
VOTT agreement was actually good for Henry,
really good for Henry. Why? Because what's good
for Mr. Benderson is also, as happens, good for
Henry because you heard about the Downtown Disney
and the fragile little shops and the retail
surrounded by the residential. If that thrives,
the residential thrives; and I think the phrase
that was used was if that goes dark, the
residential goes dark.
So the VOTT agreement was really good for
Henry, so why would he kill it? And that's where
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this comes in is this is what -- and you remember
back in voir dire, we had discussions about
people interpreting e-mails and everyone sort of
agreed that if someone misunderstands an e-mail,
you say it would be nice if they picked up the
phone and ask you rather than sue you because
when this comes up they say, this is what this
really means. That's what Mr. Culverhouse says,
he says, this is what this really means. Well,
why don't you ask the guy that wrote it. And
when you did, you found out what it really meant.
He said, "We worked this out together weeks
before the meeting." That's true, they did.
Henry, Randy, Hugh, back to Henry, back to Randy,
back to Hugh, they worked it out. Ed Vogler got
in the mix in there somewhere. And what he says
is, "What you got them to sign is even beyond my
belief." That's true, too. Henry thought it was
a great deal. Nothing wrong with that. In fact,
he thought it was such a good deal that he
thought that Wilson Miller or Palmer Ranch might
try to do something to try to get out of it,
might have a little buyer's remorse down the road
because he knew wow, it was a great deal for
Henry Rodriguez.
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So Henry Rodriguez was concerned that Palmer
Ranch might try to get out of it. And there's
lots of ways that could happen, of course. You
heard some of them on the stand is if staff puts .
in a stipulation that's at odds with the private
agreement, and I will acknowledge that staff
can't change the private agreement, that's true,
but let's say staff puts in a stipulation that
Says you have to have a hundred thousand square
feet of retail, well, that's directly at odds
with the 75,000 square foot limitation. That's a
way of getting around the VOTT agreement, and
that's what Henry was worried about and that's
what he said. So, again, if you just ask the guy
who wrote the e-mail before you launch a lawsuit,
you might avoid the lawsuit.
So you can choose to believe that everything
that we just talked about is all pretextual and
all a lie, or you can believe that maybe, just
maybe, there is no conspiracy. Maybe, just
Maybe, that what it appears to be is what it is,
is two guys, who had a disagreement over a
technical term in the development, crossed
swords, got angry, worked it out and moved on.
And so what happened after that? You Know,
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we talked about this quite a bit at opening, so I
won't go over it too much. But remember where we
are now, we're in June of 2010. Up to this
point, Henry Rodriguez has been very supportive
of the EEZ. In fact, he was so supportive of the
BEEZ that before the Planning Commission, he
hadn't read the Staff Report, so he tells Mr.
Culverhouse, it's okay, I'll come support it
because I trust Hugh. I submit that trust was
probably misplaced, but he trusted Hugh, he came
down and he supported it. He did want it to
work; he wants it to work to this day, and he
Supported it.
He went to the Planning Commission and
spoke. He responded to objectors because,
remember, there were folks like Laurel Schiller,
folks like David Merrill, who you heard testify
via deposition, those folks were already
objecting to the EEZ, Oscar Scherer State Park
was already objecting to the EEZ back in May of
2010, and Henry actually helped push back on
them, saying it's going to be all right, we'll
work this out, we'll get you what you need. He
helped out with the retail issue in June. He
then helped out with the issue, the hiccup in
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July, the second hiccup when there was an issue
as to whether the density and intensity bonuses
were going to be taken off the property, he
helped out with that.
And Mr. Powell said it best -- wherever we
went -- he said it best. He said everything was
fine until the ORC Report came out, and that's
true. Look at the chronology. Lay the e-mails
out on the table back in the jury room, if you
have to. Look at the chronology. Up until the
ORC Report, everything was fine. I will point
out, though, Mr. Rodriguez had flagged the
form-based codes thing in April. If you look at
the e-mails, he had already said before the
Planning Commission, a little concerned about
that one but, otherwise, all the way through to
the ORC Report.
And I agree with Mr. Chase, there does seem
to be some dispute as to when or how Mr.
Rodriguez got the ORC Report, but it really
doesn't matter. Tf you got it eight days later,
it doesn't matter. The point is is that his
testimony is within a couple of days of getting
it, he blew up, and everything else is history,
as they say, because we all know what happened
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after that.
He started writing e-mails to commissioners,
he started writing e-mails to staff, he contacted
neighborhood groups. Everything that they are
accusing him of doing that is bad, that they
think is bad is what he did. But here's the
irony of that. The irony of that was what Mr.
Rodriguez did is exactly what Mr. Culverhouse is
accusing Randy Benderson of not doing, and that's
packing the house. How many times have we heard
the phrase Randy Benderson didn't pack the house
and that's why he didn't support the EEZ; Paul
Blackketter should have packed the house.
Well, that's the basis of their lawsuit
against each other, and the irony is 1s what did
Henry Rodriguez do? He packed the house. He
went out and he did exactly what Mr. Culverhouse
wants Mr. Benderson to do, but when Culverhouse
wants Mr. Benderson to do it, it's oKay. When
somebody else does it for issues that he doesn't
agree with, you get sued. So the irony is,
either way, Henry Rodriguez is going to get sued.
You heard that Henry stirred up the
opposition. Again, look at the evidence. The
opposition was already stirred up. Mrs.
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2503 THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR THE COUNTY OF SARASOTA, FLORIDA CASE NO. 2011-CA-003897-NC we ue sy somes ee sh iin eh hhc 0s sith ames esha ss sh cs x McCANN HOLDINGS, LTD., Plaintiff, < vs. (5 — SDC COMMUNITIES, INC., iY VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC, VOTT-D, LLC, O HENRY RODRIGUEZ, and RANDALL BENDERSON, Defendants. stints iste teense se Senin nh ANN eS Nk Kn Nn Nk nh ln mili St ih, tah tin st wat wi seth nnn inn wi te nah nn x TRANSCRIPT OF PROCEEDINGS VOLUME XVIII OF XIX BEFORE: THE HONORABLE PETER A. DUBENSKY PLACE: Judge Lynn N. Silvertooth Judicial Center 2002 Ringling Boulevard Courtroom 6A Sarasota, Florida 34237 REPORTER: Theresa Farina-~Meiser, RMR, FPR Court Reporter DATE: March 13, 2015 (Afternoon Session) ; ' ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL2504 APPEARANCES: STEVEN D. HUTTON, Esquire PRZEMYSLAW L. DOMINKO, Esquire Steven D. Hutton, P.L. 240 South Pineapple Avenue Suite 801 Sarasota, Florida 34236 On Behalf of the Plaintiff MORGAN R. BENTLEY, Esquire KEVIN R. BRUNING, ESquire Bentley & Bruning, P.A. 783 South Orange Avenue Suite 220 Sarasota, Florida 34236 On Behalf of the Defendants SDC Communities and Henry Rodriguez STEVEN J. CHASE, Esquire HUNTER G. NORTON, ESquire Shumaker, Loop & Kendrick, LLP 240 South Pineapple Avenue Tenth Floor Sarasota, Florida 34236 On Behalf of Defendants VOTT-A-VOTT-D, LLC and Randall Benderson EDWARD VOGLER, III, Esquire Vogler Ashton, PLLC 2411-A Manatee Avenue West Bradenton, Florida, 34205 Co-Counsel on Behalf of VOTT-A-VOTT-D, LLC and Randall Benderson ALSO PRESENT: DAVID BALDAUF, Esquire * * * INDEX OF PROCEEDINGS © PAGE VOLUME XVIII CLOSING STATEMENTS Mr. Bentley 2505 Mr. Hutton Rebuttal 2545 Further Jury Instructions 2552 Jury Deliberations 2557 INDEX OF EXHIBITS VOLUME XVIII (No Exhibits or Attachments.) ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 1i 12 13 14 15 16 17 18 19 20 21 22 23 24 e : 2505 A F T ERNOON S Es 8S ION THE COURT: Are you ready? MR. BENTLEY: Yes, sir. THE COURT: Okay. (The jury enters the courtroom. ) THE COURT: All right. Folks, have a seat, please. Mr. Bentley. MR. BENTLEY: Thank you, your Honor. Good afternoon. Welcome back. You're almost done. Just like at voir dire and just like at opening statements, I agree with Mr. Hutton, there is a fundamental right that is at issue here and, that right is the right to be heard, is the right to go and raise objections at a public hearing; it's the right to say I think this is going to affect my property, maybe it's not going to affect your property, but I think it's going to affect my property. It's the right to say there's something coming up, it's going to change a lot of things and I'm worried about it. That's a right. That's the right that's at issue in this case. And the Court has already instructed you, but I highlighted it for you, when you take these ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL2506 1 back, this is on count eight, which has to do 2 with interference with the McCann-County 3 relationship, and what the Court has instructed 4 you -- and I shouldn't have used pink -- what it 5 says here is, "However, another person is 6 entitled to advance his, her or its own financial ] interest so long as he, she or it has proper 8 reason or motive and he, she or it uses proper 9 : methods." This instruction goes on to tell you 10 what those proper methods are, who interferes, 11 "One who interferes only out of spite, or to do 12 injury to others, or for other bad motive, has no 13 justification, and the interference is improper." 14 | And then the instruction tells you exactly what 15 that means, "But one who uses misrepresentations, 16 illegal conduct or threats of illegal conduct has 17 no privilege to use those methods, and 18 interference using such methods is improper." 19 That's what the rule is. 20 There's no question in this case, no 21 credible argument that can be made that Mr. 22 Rodriguez or SDC acted only out of spite, or only 23 to do injury to others, or because of illegal 24 conduct or anything of the kind. What this case 6 25 rests on is the one phrase in here that says, ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e -; 2507 "But one who uses misrepresentations." That's why they spent so much time talking about well, Mr. Rodriguez was wrong about this, so he couldn't have possibly believed that. And they make the pretextual argument and they say everything that happened in this case, everything you've heard, from the e-mails going back to June, to e-mails in July, to all the e-mails in October that went on and on and on, they're all pretextual; the e-mail with Mr. Benderson was pretextual, it was made up, it was all made up. That's why they spent so much time doing it because that's the only excuse to get them around the fact that Mr. Rodriguez and SDC had a privilege to do what they did; they hada fundamental right to do what they did. And when I stood here nine days ago, I never said Mr. Rodriguez never objected. That's the first thing I said to you is I said, what you're going to hear in this case is that Mr. Rodriguez objected a lot, and I think that's one thing we can all agree on is that that's the evidence in this case. But that's not, and I told you then, that's not the issue in the case. Now you know what the ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo -: Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2508 issue in the case is. It's not whether or not Mr. Rodriguez objected, it's whether he used misrepresentations when he made those objections. Okay? Now, the phrase "Misrepresentation" needs a little clarification. These are not mistakes. Misrepresentations means intentional misrepresentations, intentional misrepresentations, lies. Now, there are basically four or five Mr. Hutton is focused on in his opening, and I'm going to address them at the start of this. The first one has to do -- the four of them are the hundred and ten acres, there's the issue of traffic, there's the issue of density and intensity bonuses, and there's the issue of form- based code, and on every one of them, Mr. Hutton went through and tried to explain to you why there is no possible way Mr. Rodriguez could have believed that his objections were valid because planning staff disagreed with him. Okay. I'm going to go through that in a second, but I want to start with this -- oh, there's one more, there were five, actually -- and that Ray Rodriguez couldn't have possibly ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-156010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo -: 2509 said to him that there was not going to be retail on the McCann property, and I'm going to deal with all five of those in order. But the point is, is that keep in mind the decision is not whether or not Mr. Rodriguez was right or wrong about these issues, it's whether he was intentionally misrepresenting these issues, and our point is this, is that whether Mr. Culverhouse agrees. Just because Mr. Culverhouse says, Henry, you don't know what you're talking about, or even if Mr. Benderson says, Henry, you don't know what you're talking about makes not a whit of difference, not one. Mr. Culverhouse isn't the end of the story; staff isn't the end of the story; Justin Powell isn't the end of the story; Jim Paulmann isn't the end of the story. The end of the story is Mr. Rodriguez and his concerns about his interests. That's what this story is about. Let's talk a little bit about those interests. A hundred and ten acres, the hundred and ten acres issue has come up from the beginning, and you'll remember nine days ago I said it was in, it was out, it was in, it was out. I didn't tell you the rest of the story, ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo : 2510 which is, it went back in again. You'll remember the ORC Report, and I hope you'll never have to hear that phrase again, but the ORC Report, the very first issue in the ORC Report, number one in the ORC Report -- and you're going to have the ORC Report back there with you so you can read it yourself, it's an SDC exhibit, and you can flip through it and verify what I'm about to tell you -~ the number one objection in the ORC Report was hey, Sarasota County, when you submitted your BEZ plan, it included all this acreage, and now this hundred and ten acres doesn't appear to be in it anymore. So basically, the DCA was saying put it back in. That caused a problem, and you saw Mr. Powell sent a letter to Mr. Polk saying I'm going to take the hundred and ten acres back out of the BEEZ. So staff, and this would be funny if it weren't so serious, their response in the Planning Commission or the Planning Staff Report that Mr. Hutton has cited to you over and over and over again, you know what their response was on the hundred and ten acres that Mr. Powell had just taken out the week before? Their answer to the ORC Report was put it back in again. That ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLLO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e = 2511 was staff's answer to that problem is well, we'll Just put it back in again. So the whole issue of the hundred and ten acres wasn't even resolved in the planning report that Mr. Hutton keeps citing to as proof that Mr. Rodriguez didn't know what he was talking about. That hundred and ten acres had been taken out by Mr. Powell eight days before. So how on earth is planning staff telling DCA we're going to put the hundred and ten acres back in again? It was still an issue. But, again, it doesn't matter it's right or it's wrong, we think Mr. Rodriguez was absolutely right on that issue, not that he was mistaken, he was right. The second issue, they want to talk about the traffic issue, and they point to the Staff Report again and they say well, look, the Staff Report adequately addressed the traffic issue, nothing to worry about, nothing to see here, everybody move on. Mr. Rodriguez was totally mistaken, couldn't have possibly thought there was a traffic issue. Well, the rest of the story is in the ORC Report is a report from the Florida Department of Transportation, and what do they say? They Say, ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e -; 2512 you used the wrong numbers. They say the Planning Staff Report says oh, it's going to have a net decrease in numbers. FDOT says that doesn't look right to us, we have real serious reservations about the methodology that you have used in this traffic study, and that was an issue for Sarasota County Planning Staff to address, and this is how they addressed it. This was also out of the Planning Commission or the Planning Staff Report, and you've seen this exhibit a number of times. And how did- they f1x it? Right there. That one little number made all the difference, is instead of 1.5 million square feet office, medical office park, they said we're going to have 1.5 million square feet of industrial. If you use industrial, you use this code, and it results in 8,000 trips a day. Well, what did Doctor DePew tell you? Their expert said if you use the right code, which is medical office, that number, 8,000, is going to be five to six times higher. And if that number is five to six times higher, you don't have negative 5,000 trips per day, you have positive 35,000 trips a day. That's the issue. And here's the irony of all this, is that ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo = Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2513 1.5 million square feet of industrial, from the very beginning of this case they have painted a picture of anything but industrial uses; it's going to be Jackson Lab, it's going to be people in electric carts; it's going to be medical office buildings. Every single thing they've described to you is not industrial, probably because no one wants 1.5 million square feet of industrial in their backyard. But what they've told you this is going to be is not that, and if you put in the right number, according to their expert, for what they've described as their project, then your traffic goes up by a factor of five to six times. Now, you say, so what? You've heard Mr. Hutton say so what, he's vested for his traffic. Well, the rest of the story is not quite so fast, my friend. He and this man right here had an agreement, a developers' agreement. When Mr. Benderson bought Mr. Rodriguez's property, the burden of building out all the roadway systems fell on Mr. Rodriguez. And you heard Mr. Benderson, he was on the stand, and he was asked by Mr. Hutton, he said, what's the -- you didn't care about traffic, and ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-156010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e : Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2514 Mr. Benderson said no, I really didn't care about the traffic because, you know, it wasn't my problem. He actually said it's easy for me to say, I don't have to pay for it. That's what Mr. Benderson said. So, of course he didn't care about the traffic; it wasn't coming out of his pocket, it was coming out of his pocket. You also heard that just the one road alone that already had to be built was going to be S6 million. $6 million to build one road. That was Mr. Rodriguez's responsibility. If this traffic report was wrong, and you heard about not only what I just talked about, you also heard things like Honore had to be extended down to Laurel -- that might have gotten lost in the weeds a little bit -- but the traffic report rested on an assumption that Honore was going to be built all the way to Laurel. And Mr. Rodriguez raised his hand and he said, I don't believe that's going to happen, and everyone pooh-poohed him and said, Henry, you don't know what you're talking about; Henry, you're just being Henry. And guess what, Honore is not built today. Henry was right. The other thing that that traffic report ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-156010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo : 2515 assumed that there was going to be an interchange at I-75 and 681, and that was one of the things that FDOT flagged and said umm, you know, let's hold on here. We don't see any interchange in the 2030 Plan is what they call it in the report -- you'll have it, you can read it for yourself -- and you have to redo your traffic study assuming no interchange. Well, now think about what Mr. Rodriguez is staring down the pipe of. Not only does he have to pay $6 million for one road, not only would he potentially have to build out other off-site improvements, there might be -- and Mr. Powell and Mr. Paulmann and everybody agreed that even though it was a very slight possibility, it was still a possibility that a full interchange would have to be built at 681 and I-75. Now, if it's not your money, you can say to yourself well, if there's only a five percent chance of having to build an interchange, I'm willing to take that risk. Mr. Benderson was probably willing to take that risk and say ahh, I got a 95 percent chance of being right, not my money. Mr. Powell, he was going to take that risk, ahh, it's only five ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL2516 1 percent probability, maybe lower. It's not his 2 money. Jim Paulmann, he's willing to take the 3 risk, it's not his money either; and staff 4 certainly wasn't going to pay for it. The only 5 person in this courtroom, the only person in this 6 trial who was on the hook for those traffic costs 7 was Henry Rodriguez. 8 So for everyone to sit around and tell Henry 9 he didn't know what he was talking about, they 10 ought to stand in his shoes for a second, and 11 that's the point of all this is it's a bit 12 offensive to be told by a bunch of people that 13 you don't know what you're talking about when 14 you're looking at that Kind of liability, at that 15 kind of exposure. 16 You've gathered that Mr. Rodriguez is not of 17 the level of the other two developers here. This 18 is all he had. That's what he said on the stand, 19 this is all I've got is this 220 acres. So these 20 were all very important issues for him. And I 21 don't think anyone in their heart of hearts 22 really believes that it wasn't an important issue 23 for Mr. Rodriguez, that he wasn't borderline 24 scared out of his mind in October of 2010. So © 25 that's the traffic issue. ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL2517 1 He also raised the issue of density and 2 intensity bonuses and he was told -- again, Mr. 3 Hutton points to the Staff Report and says well, 4 don't worry, they've answered that. Look at the 5 Staff Report. How did they answer it? They 6 answered it by saying we'll deal with it later. 7 That's not an answer, that's a punt. 8 And here's the funny thing again, Mr. 9 Rodriguez was right. They, the legislature, did 10 not pass density and intensity bonuses until the 11 year 2011. So when we're sitting here, in 12 October of 2010, and Mr. Rodriguez's head is 13 popping off about all these issues and everyone 14 is telling him oh, Henry, don't worry about it, 15 you're wrong, you don't know what you're talking 16 about, guess what, he was right. He was right. 17 Mr. Culverhouse wasn't right; Mr. Powell wasn't 18 right; Mr. Paulmann wasn't right; Henry was 19 right. 20 And the last thing is the form-based codes 21 and this is just, this kind of sticks with me 22 because the fact that it's still being talked 23 about is, it's an Alice in Wonderland moment. 24 The argument that the plaintiff is making is that © 25 somehow the idea of form-based codes should have ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLLQ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo : Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2518 been a nonissue to Henry Rodriguez. And where is that planning report? THE COURT: The ORC Report? MR. BENTLEY: No, 433. But the issue with the planning, with the form-based codes, Mr. Hutton points to it and says well, this only applies to Sub Area Planning l. Read the ORC Report. I'm sorry, I have it. It was here the whole time. Read the ORC Report. The ORC Report says, on page five and six -- you'll have it back in your room, you can read it for yourself -- starting on page five, going on to page six, it specifically says that "There are no meaningful and predictable nor included standards or criteria for implementation of the form-based codes. The County application should be required to show those codes for the Energy Economic Zone." The Energy Economic Zone. It's not limited to McCann's property. Remember, the Energy Economic Zone includes four properties. It includes the County landfill, not the dump, but the landfill is what we call it these days, the McCann property, the VOTT property and the SDC property. That's the ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-156010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e : Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2519 Energy Economic Zone. So in the ORC Report, DCA is saying to Sarasota County, you've got to come up with form-based codes for the whole EEZ area. Again, putting yourself in Mr. Rodriguez's shoes, he's hearing staff say don't worry, it's only on McCann property; he's reading the ORC Report and it says it's the whole EEZ. Did he really care, as Mr. Hutton points out? No. If it was on McCann's property, he didn't care. The problem was, nobody really knew for sure because the ORC Report said something different than what staff was saying. And that's all Mr. Rodriguez wanted. Read the e-mails. What he's saying is, I don't care about form-based codes, I just want to make sure they're not on my property, and this is why he was concerned about them being on his property. Mr. Hutton would lead you to believe that there wasn't a reason in the world, not a reason on the planet that he should be concerned about form-based codes. Page five and six of the ORC Report, that's why he was concerned about form-based codes. And lastly, there's been some suggestion about Ray Rodriguez, and there was an argument ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-156010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 oe =: 2520 made at the outset that well, Henry was up in Georgia and wasn't paying any attention. Well, let's back up a little bit. Remember that this started, this whole EEZ started with Henry Rodriguez. He flew to California, he and his brother with Jim Paulmann, years ago. He was instrumental in helping push it across the goal line in the Florida legislature. His brother and Mr. Powell and Mr. Paulmann lobbied the legislature to get the BEEZ brought to Sarasota County, as well as it went to Miami that you've heard, and he brought it to Sarasota County and he entered into it. And everything you've seen, every single e-mail, every single piece of testimony, even the stuff that they want to paint as bad, in every single one of them Mr. Rodriguez is just saying I really want the EEZ to work, I want it to go forward. Not once did he ask for a denial, not one single time. So this issue with Ray Rodriguez, he was in Georgia, but his brother was the chair of the stakeholder group. His brother Ray, the one who went to California and he went to Tallahassee, he was actually the chair of the stakeholder group that was working on the EEZ with Mr. Powell and ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL2521 1 Mr. Paulmann. 2 So when he tells his brother that the deal 3 was ~- and Mr. Hutton cited the e-mail for you -- 4 he tells his brother Henry that the whole time 5 the plan was that the retail was going to go on 6 the Benderson property and the office was going ] to go on the McCann property, that's all Mr. Ray 8 Rodriguez was Saying to his brother Henry. So 9 the idea is not was Ray Rodriguez right or wrong, 10 it's what did Henry know when he wrote the 11 e-mail, and what he knew was that his brother 12 Ray, who had been chair of the stakeholder group 13 told him hey, I thought the deal was that all the 14 retail was going to go on Benderson's property 15 and all the office was going to go on Culverhouse 16 property. Was he wrong about that? Maybe. 17 Frankly, I don't know. Nobody knows. You know, 18 maybe that was a deal. We don't know. 19 The problem is, it's irrelevant. It's not 20 relevant whether Ray Rodriguez was right or 21 wrong, what's relevant is what did Henry 22 Rodriguez have between his ears when he wrote the 23 e-mail, and what he had between his ears were the 24 words of his brother Ray that just said ten © 25 minutes before, I thought the deal was that all ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e : Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2522 the retail was going to go on the Benderson property. And that takes us back to the chronology is if you think about the maps that were shown -- can I use your map? MR. HUTTON: sure. (Pause in proceedings.) MR. BENTLEY: They show you the map from Wilson Miller in December of 2009, and what it said is, they point to the bottom corner where it says, "Retail/Commercial" and they say well, how could Ray Rodriguez have possibly thought that there was going to be retail only on the Benderson property when this map says "Retail/Office Commercial"? Well, because that's a bunch of categories, and Ray Rodriguez's understanding, as relayed to his brother was, yes, that's what it says, but the deal is that the retail is going to go here and the office is going to go there. And it wasn't until the May Planning Commission -- remember, the whole time, even on this e-mail, even on this map, I mean, I should say, where it says, right here, this is what they point to, to say that Ray Rodriguez was absolutely out of his mind, they say retail/ ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-156010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e - Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2523 office/residential. So it could have been any of those number of things. And they say, they point to that and say well, obviously, he knew there is retail. No. That's the point is that Ray Rodriguez was relaying that he thought that the office and residential would go here and the retail would go down here. Was he right or wrong? It doesn't matter, but that's what he did. So moving forward, you'll remember the whole time, everything that's been submitted to you, it said 1.5 million square feet of industrial, 250,000 square feet of commercial and 1900 homes, until the Planning Commission in May of 2010. And on the Planning Commission, no one really knew why. I asked every witness that came up, and you guys probably wondered why I kept asking that, how did it go from 250,000 square feet of commercial to 125,000 square feet of commercial and 125,000 sguare feet of retail? I don't know, and it is irrelevant. What's relevant is is that's the point where everything started, is once it was specifically retail, Alicia Gayton wrote a memo to Mr. Benderson and said oh, wait a minute, we may have ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-15602524 1 a problem here. Mr. Benderson started to make 2 some calls, or whatever he was doing, and that's 3 when Mr. Culverhouse got wind of it. 4 By the way, I had to smile when I heard Mr. 5 Hutton say this was a case about unique access. 6 We all forget that the way Mr. Culverhouse heard 7 about the retail problems is because he was 8 having breakfast with Joe Barbetta. Kind of 9 ironic that now he's pointing to us as having 10 unfettered access to the commissioners, and the 11 way he learned about all this is because he was 12 having eggs with Joe Barbetta and then called 13 Nora Patterson to talk about it. 14 But the point is, is that's what started the 15 chain of events that then led to Mr. Culverhouse 16 calling Mr. Rodriguez in order to get ahold of 17 Mr. Benderson so that he could talk to Mr. 18 Culverhouse and they could work the whole retail 19 thing out. And there's nothing wrong with that. 20 It's perfectly fine. In fact, it's supportive of 21 the BEEZ. 22 Tf Mr. Rodriguez wanted to kill the EEZ, he 23 could have just said I'm not going to call Randy. 24 You guys just work it out yourselves and fight to © 25 the death. But he didn't do that. And the irony ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo » 2525 here is that the acts of support that Mr. Rodriguez gave to the EEZ are the very acts that they're pointing to as being pretextual proof of some conspiracy. It is Alice in Wonderland. They point to these e-mails where Henry is Saying let's keep working on the EEZ and say aha, that is proof of a conspiracy. They point to the e-mail with Mr. Benderson that says let's agree to disagree. They say aha, that's proof of conspiracy. It's whack-a-mole. It doesn't make any sense. So those are the five issues that Mr. Hutton and Mr. Culverhouse are leading you to believe were intentional misrepresentations by Henry Rodriguez. I would submit to you that the evidence in this case is, I think is clear that Mr. Rodriguez was right. He wasn't even wrong, he was actually right about all these issues. But whether he was right or wrong is irrelevant. The question is were there issues and did he talk about them, and if that's what he did, he was absolutely privileged to do so. That's his right. That's everybody's right. Now, one of the things that happens at the outset of these trials is we all stand up, Mr. ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e =: 2526 Hutton, Mr. Chase, me, and we tell you, we make some statements about what we think the evidence is going to show, and then we build our case off of that and we tell a story; and then the evidence comes in and we all keep our fingers crossed that the evidence comes in the way we said it was going to come in, and it's always a little awkward when it doesn't. In this case, there were a lot of issues that were raised at opening statement. I want to focus on three of them. The first one was that you were told -- and this was a centerpiece of the argument that was made then, it's not really the argument that's being made now, but back then, the centerpiece of the argument was and the quote is that this was "The one and only Comp Plan that got deferred since 1997." That was the centerpiece. They said we're going to put an expert on and he's going to tell you this is the only Comp Plan that's been deferred since 1997. That turned out not to be true. In fact, in 2010, there was a Comp Plan deferral into the next Comp Plan cycle, just like this Comp Plan was deferred into the next Comp Plan cycle, ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 1/7 18 19 20 21 22 23 24 e 29527 County-initiated, Planning Commission approval, DCA ORC Report, planning staff approval, and it was deferred six months, six months before this one was. So the idea that this was the one and only deferral in the history of Sarasota County just turned out not to be right. But there was even more in that report. And I'll make this comment about Doctor DePew is, if Doctor DePew -- on this list that you'll have in the room with you, the one with the red and the blue and the bold black and the not bold black, count them up. There's over 600 entries on this list, and he told you he checked 15 to 20 of them. So I almost want to say it's not Doctor DePew's fault because he didn't actually look, except it's so serious because he came in here and he told you that they made a representation to you about something that turned out not to be true. Worse, not only was there a deferral of a County-initiated Comp Plan in the same year that this Comp Plan was deferred, there were two denials of County-initiated Comp Plans. The County denied their own Comp Plan in 2010, twice in the same year. And in 2008, there was another ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo - Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2528 one that got deferred, albeit not into the next Comp Plan cycle, I would acknowledge; and I would also acknowledge this because I know my friend, Mr. Hutton, is going to say this when he gets back up is he's going to say, you know, he was right, except every one of those was eventually adopted. I would agree, because those guys brought their Comp Plans back; and if Mr. Culverhouse had brought this Comp Plan back, I submit to you, their own expert would say it's a slam dunk, he's going to get his Comp Plan. All he had to do was bring it back. So that was one thing that was said in opening. Another thing that was said in opening was this is going to be a case about backroom deals, political influence and getting things done behind the scenes. That's definitely not true. If there's one thing -- I don't know how you-all feel about Mr. Rodriguez, but I think we can all agree, he's a very public guy. There's nothing very quiet or private about Henry Rodriguez. a don't know how he has the time to write all these e-mails, but the point is that he sent them to everyone in the world. You'll have the e-mails again. Count the number of people. There would ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-15602529 1 be 28 and 30 and 25 every single time they went 2 out, and they would always go to all the planning 3 commissioners, and they'd go to staff, they'd go 4A to Mr. Powell and they'd go to Mr. Paulmann. 5 There was nothing secret going on here. 6 In fact, part of their argument, ironically ] enough, part of this argument is the fact that he 8 was so public is proof of the conspiracy, that 9 they sent all these e-mails just to be pretextual 10 and to give themselves something to hide behind. 11 That's the exact opposite of backroom deals and 12 private deals. And, again, it makes no sense. 13 It's Alice in Wonderland. It makes no sense. 14 The third thing that was said at opening and 15 was the second part of the centerpiece of their 16 case -- the first part was there's never been a 17 deferral since 1997 in any County-initiated Comp 18 Plan. That turned out not to be true. The 19 second centerpiece of their argument was this, is 20 they told you that you would hear about a 60-day 21 rule and that the 60-day rule prevented the 22 County Commission from doing what it did. That 23 turned out not to be true. 24 In fact, that turned out to be not only true © 25 -- not true, Mr. Culverhouse candidly told you ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2530 that he didn't even know of that rule until this litigation started. He just added that to the mix as part of the litigation strategy. And that was -- I appreciate the candor on that issue. So the 60-day rule, very quickly, was we -- Mr. Chase already touched on this a little bit -- is the Secretary of the DCA came in. First of all, the ORC Report itself says should. It doesn't say you shall, it says should. The Secretary of the DCA, the man whose name is on the ORC Report itself, Thomas G. Pelham, that's the guy that was on the stand the other day, he told you oh, no, that was the pattern of the -- the practice of the DCA was we didn't enforce that rule, there's no penalty attached to it, and it happened fairly regularly that we went past the 60 days. So that's one. Number two is, and you saw the tapes, so you know how many people were at that hearing. Again, it defies logic that if this 60-day rule was such a big deal that you have five county commissioners, you have the County Attorney Alan Roddy sitting there, you've got Justin Powell sitting there, you have Jim Paulmann, an expert in land planning sitting there, you have John ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-15602931 ol Cook, McCann's lawyer sitting there, not one 2 Single person raised their hand and said oh, 3 wait, wait, wait, wait, wait, wait, 60-day rule, 4 you can't do that. In all the e-mails that came 5 after, where people were complaining and saying 6 this should be brought back or what have you, 7 nobody raises the 60-day rule. 8 I submit to you, without sounding harsh, the 9 60-day rule is just made up. It was made up for 10 this case, and you should pay no attention to it. 11 So that's what came up in opening, and those 12 turned out not to be true. 13 So let's focus on what we've heard about 14 from the beginning. The focus 1s around this 15 July or June 23rd meeting and, again, you have to 16 look at the theory of the case and ask yourself 17 if it makes any sense. June 23rd is the start of 18 the plot, the grand conspiracy that has occurred, 19 and the plaintiff argues that on that day, Mr. 20 Benderson and Mr. Rodriguez launched a plot to 21 lock down, to lock down Mr. Culverhouse's retail 22 forever and ever and ever and then turn around 23 and take away all his land use entitlements. 24 That is, in sum and substance, Mr. Culverhouse's © 25 case. ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLLO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e » 2532 Here's the problem with it: There's several, but let's start with the first one. Tf that is true and Mr. Benderson and Mr. Rodriguez had the ability to take away all the land use rights from Mr. Culverhouse, why would they go to such efforts to limit it to 75,000 square feet? They'd just take them all away. That's the theory of their case, that is was ultimately what they were going to do. So why would they send all those e-mails back and forth, and the three fingers, and the yelling and screaming to limit it to the 75,000 when they could just take it all away, anyway? Jumping ahead, I would submit to you that's also a fundamental problem with the entire case, is if that power existed between Mr. Benderson and Mr. Rodriguez, why would they have gone through all this drama to try to object to the FEZ, or at least Mr. Rodriguez, because Mr. Benderson never did object to the EEZ, why would Mr. Rodriguez go through all that? If he had the ability to snap his fingers and get the commissioners to do his bidding, he would have snapped his fingers and said do my bidding. It just doesn't make sense. It doesn't make sense. ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL2533 1 Issue number two, and this is the one -- 2 again, the ironies here are not lost, and they 3 would be funny if they weren't so serious -- the 4 linchpin of the argument is that Mr. Rodriguez 5 did not sign the agreement, the VOTT agreement 6 and, therefore, was free to do what he wanted and 7 that Mr. Benderson used him as some kind of 8 guided missile to go out and kill the EEZ. Fair 9 enough. The problem with that is remember who 10 asked Henry not to sign the agreement in the 11 first place, it was Hugh Culverhouse. 12 So in order for the theory to work, Henry 13 Rodriguez would have had to have known that Hugh 14 Culverhouse -- when Henry walked into the room 15 and the agreement is on the table, an agreement 16 that has SDC's name already on it, it's already 17 on it, all Mr. Culverhouse has to do is say 18 Henry, sign right here, and SDC would have been 19 part of the VOTT agreement -- Henry would have 20 had to know that instead of doing that, Hugh 21 Culverhouse would look at him and say shoo, shoo, 22 you don't matter, the bank's going to own your 23 property in a month anyway. If Mr. Rodriguez has 24 that ability, I want him to buy my lottery © 25 tickets this weekend. That doesn't make sense. ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e : Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2534 It's a great story. I grant Mr. Hutton, it is a great story. It just doesn't make sense with the evidence that's in the case. It doesn't hang together. And the third thing Mr. Chase touched on, so I won't belabor it, is it's a heck of a plot where the plotters don't know what they want. You've got one guy Saying it's going to last forever and you've got another guy saying it's over and done with, that is, the restrictions on McCann's property. Again, it doesn't make sense. And the last thing on that issue is just the fundamental one that we talked about in opening is, everybody agrees, everybody agrees that the VOTT agreement was actually good for Henry, really good for Henry. Why? Because what's good for Mr. Benderson is also, as happens, good for Henry because you heard about the Downtown Disney and the fragile little shops and the retail surrounded by the residential. If that thrives, the residential thrives; and I think the phrase that was used was if that goes dark, the residential goes dark. So the VOTT agreement was really good for Henry, so why would he kill it? And that's where ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-156010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 eo : Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2535 this comes in is this is what -- and you remember back in voir dire, we had discussions about people interpreting e-mails and everyone sort of agreed that if someone misunderstands an e-mail, you say it would be nice if they picked up the phone and ask you rather than sue you because when this comes up they say, this is what this really means. That's what Mr. Culverhouse says, he says, this is what this really means. Well, why don't you ask the guy that wrote it. And when you did, you found out what it really meant. He said, "We worked this out together weeks before the meeting." That's true, they did. Henry, Randy, Hugh, back to Henry, back to Randy, back to Hugh, they worked it out. Ed Vogler got in the mix in there somewhere. And what he says is, "What you got them to sign is even beyond my belief." That's true, too. Henry thought it was a great deal. Nothing wrong with that. In fact, he thought it was such a good deal that he thought that Wilson Miller or Palmer Ranch might try to do something to try to get out of it, might have a little buyer's remorse down the road because he knew wow, it was a great deal for Henry Rodriguez. ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-156010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e » 2536 So Henry Rodriguez was concerned that Palmer Ranch might try to get out of it. And there's lots of ways that could happen, of course. You heard some of them on the stand is if staff puts . in a stipulation that's at odds with the private agreement, and I will acknowledge that staff can't change the private agreement, that's true, but let's say staff puts in a stipulation that Says you have to have a hundred thousand square feet of retail, well, that's directly at odds with the 75,000 square foot limitation. That's a way of getting around the VOTT agreement, and that's what Henry was worried about and that's what he said. So, again, if you just ask the guy who wrote the e-mail before you launch a lawsuit, you might avoid the lawsuit. So you can choose to believe that everything that we just talked about is all pretextual and all a lie, or you can believe that maybe, just maybe, there is no conspiracy. Maybe, just Maybe, that what it appears to be is what it is, is two guys, who had a disagreement over a technical term in the development, crossed swords, got angry, worked it out and moved on. And so what happened after that? You Know, ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e * 2537 we talked about this quite a bit at opening, so I won't go over it too much. But remember where we are now, we're in June of 2010. Up to this point, Henry Rodriguez has been very supportive of the EEZ. In fact, he was so supportive of the BEEZ that before the Planning Commission, he hadn't read the Staff Report, so he tells Mr. Culverhouse, it's okay, I'll come support it because I trust Hugh. I submit that trust was probably misplaced, but he trusted Hugh, he came down and he supported it. He did want it to work; he wants it to work to this day, and he Supported it. He went to the Planning Commission and spoke. He responded to objectors because, remember, there were folks like Laurel Schiller, folks like David Merrill, who you heard testify via deposition, those folks were already objecting to the EEZ, Oscar Scherer State Park was already objecting to the EEZ back in May of 2010, and Henry actually helped push back on them, saying it's going to be all right, we'll work this out, we'll get you what you need. He helped out with the retail issue in June. He then helped out with the issue, the hiccup in ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLFiled 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e + 2538 July, the second hiccup when there was an issue as to whether the density and intensity bonuses were going to be taken off the property, he helped out with that. And Mr. Powell said it best -- wherever we went -- he said it best. He said everything was fine until the ORC Report came out, and that's true. Look at the chronology. Lay the e-mails out on the table back in the jury room, if you have to. Look at the chronology. Up until the ORC Report, everything was fine. I will point out, though, Mr. Rodriguez had flagged the form-based codes thing in April. If you look at the e-mails, he had already said before the Planning Commission, a little concerned about that one but, otherwise, all the way through to the ORC Report. And I agree with Mr. Chase, there does seem to be some dispute as to when or how Mr. Rodriguez got the ORC Report, but it really doesn't matter. Tf you got it eight days later, it doesn't matter. The point is is that his testimony is within a couple of days of getting it, he blew up, and everything else is history, as they say, because we all know what happened ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 e : 2539 after that. He started writing e-mails to commissioners, he started writing e-mails to staff, he contacted neighborhood groups. Everything that they are accusing him of doing that is bad, that they think is bad is what he did. But here's the irony of that. The irony of that was what Mr. Rodriguez did is exactly what Mr. Culverhouse is accusing Randy Benderson of not doing, and that's packing the house. How many times have we heard the phrase Randy Benderson didn't pack the house and that's why he didn't support the EEZ; Paul Blackketter should have packed the house. Well, that's the basis of their lawsuit against each other, and the irony is 1s what did Henry Rodriguez do? He packed the house. He went out and he did exactly what Mr. Culverhouse wants Mr. Benderson to do, but when Culverhouse wants Mr. Benderson to do it, it's oKay. When somebody else does it for issues that he doesn't agree with, you get sued. So the irony is, either way, Henry Rodriguez is going to get sued. You heard that Henry stirred up the opposition. Again, look at the evidence. The opposition was already stirred up. Mrs. ASSOCIATED COURT REPORTING OF SOUTHWEST FLORIDA, INC. (941) 951-1560 Filed 09/09/2015 02:50 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL10 11 12 13 14 15 16 17 18 19 20 21 22 23 24