Motion,Ex Parte: RICHARD C SENKER TRUSTEEE OF THE RICHARD C SENKER vs SNAVELY SIESTA ASSOCIATES LLC

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                                IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA

RICHARD C. SENKER, Trustee of the Richard
C. Senker and Patricia A. Senker Land Trust,
a Florida Land Trust,

Plaintiff,
Vs. CASE NO. 2007 CA 008509 NC

SNAVELY SIESTA ASSOCIATES, LLC,
an Ohio Limited Liability Company,

Defendant.

__/

AMENDED MOTION FOR ORDER DIRECTING DEFENDANT
TO RETURN FUNDS TO ESCROW OR ALTERNATE RELIEF

Plaintiff, RICHARD C. SENKER, Trustee of the Richard C. Senker
and Patricia A. Senker Land Trust (“Senker”) hereby moves this
Court for an order requiring Defendant, SNAVELY SIESTA ASSOCIATES,
LLC, (“Snavely”) to return the sum of $151,473.87 to the escrow
account established by the Contract executed by the parties or
alternatively, for an equitable lien on the remaining unsold units
in the Summer Cove Condominium that are still property of Snavely
and state as follows:

1. On or about July 18, 2005, Senker executed a pre-
construction contact to purchase a condominium unit at Summer Cove
Condominium from Developer, Snavely. A copy of the Contract is
attached hereto as Exhibit A.

2. As required by the Contract, Senker made initial earnest

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 1 of 25money deposit in the amount of $141,525 with Escrow Agent, Kirk
Pinkerson, P.A. and made a second earnest money deposit with Escrow
Agent, Kirk Pinkerton, P.A. in the amount of $141,525 on August 9,
2005 and paid the sum of $24,408.73 to Defendant for upgrades to
the unit.

3. Pursuant to the Contract, the sum of $141,525 was
disbursed from escrow to Developer, Snavely and the balance of the
funds remained in escrow in an interest bearing account.

4. On September 4, 2008, the Court awarded Summary Judgment
to Senker and ordered Kirk Pinkerton to disburse all funds held in
escrow to Senker.

5. On September 18, 2008, Kirk Pinkerton deposited the
escrowed funds in the amount of $151,473.87 into the Court Registry
pending Snavely’s appeal of the adverse Summary Judgment.

6. On May 21, 2010, the Second District Court of Appeal
reversed the Court’s order awarding Summary Judgment to Senker and
remanded the case back to the Twelfth Judicial Circuit for further
proceedings on the remaining counts of Senker’s complaint.

7. On May 21, 2010, Snavely moved this Court for an order
requesting the disbursement of funds (including the $151,473.87
previously held in escrow) from the Court Registry. However, the
Motion failed to notify the Court that a portion of the funds

originally came from the escrow held by Kirk Pinkerton.

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 2 of 258. On June 10, 2010, the Court entered an order, without
notice or hearing, granting Snavely’s motion.

9. The Court’s June 10, 2010 order was entered in error since
the sum of $151,473.87 which had been in escrow prior to the
Court’s entry of Summary Judgment in favor of Senker, should have
been returned to escrow pending the outcome of the remaining counts
to Senker’s Complaint.

10. Since Senker’s filing of the original Motion requesting
a return of funds to the escrow, the Court sent correspondence to
the parties in this matter requesting the parties first attempt to
resolve the issue, a copy of which is attached hereto as Exhibit B.

11. The undersigned contacted local counsel for Snavely, Kirk
Pinkerton and attempted to resolve the issue. In response,
Attorney Vaughn-Birch indicated that his Firm has not been engaged
in this matter post-appeal’ and indicated that Snavely’s counsel
appearing pro hac vice in this matter, Charles Longo, would attempt

to resolve the same’. A copy of Attorney Vaughn-Birch’s

1 Attorney Vaughn Birch has indicated his Firm has not been
retained post-appeal and he has also filed a “charging lien”
against Snavely in the amount of $48,501.95.

2 Although Attorney Vaughn-Birch indicates in his
correspondence that his Firm has not been retained post-appeal,
the firm of Kirk Pinkerton remains as counsel of record for
Snavely and is local counsel for the Pro hac appearance of
Attorney Longo, pursuant to Rule 2.510, Florida Rules of Judicial
Administration and Rule 1.3.10, Rules Regulating the Florida Bar.

3

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 3 of 25correspondence is attached hereto as Exhibit C.

12. On October 6, 2010, the undersigned and Pro hac counsel
Longo discussed the matter by telephone. In that conversation,
Attorney Longo indicated that “the money is gone” and “has been
pledged to the Bank”, namely, Huntington National Bank, the
construction lender on the project. Pro hac counsel Longo also
noted that Snavely Siesta Associates, LLC, a LLC formed for the
purpose of developing the Summer Cove Condominium, has no assets
other than the remaining units at the project.

13. On October 11, 2010, Pro hac counsel Longo sent
correspondence to the Court acknowledging his statements that
Senker’s funds had been pledged by Snavely to the Bank, a copy of
which is attached hereto as Exhibit D.

14. Prior to Snavely’s purported pledge of Senker’s funds to
Huntington National Bank, the Bank had no interest in the same.
While the Bank may have a security interest in all other property
owned by Snavely, Senker’s funds cannot be considered the property
of Snavely unless and until Snavely is determined to be the
prevailing party in this cause.

15. As of the filing of this Amended Motion, on information
and belief, Snavely Siesta Associates, LLC has sold all but 2 of
the units in the Condominium, namely, Units 302C and 903C and

remains as the owner of these two units.

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 4 of 25WHEREFORE, Senker seeks an order directing Defendant, Snavely
Siesta Associates, LLC to return the sum of $151,473.87 to the
escrow account held by Kirk Pinkerton, P.A. under the Contract, or
in the alternative, an order placing an equitable lien on Units
302C and 903C so that the sum of $151,473.87 generated from the
sales of these units is paid to the escrow pending final resolution
of this matter and for such other relief as the Court deems proper.

Certificate of Service

I CERTIFY that a copy of the foregoing has been provided via
e-mail attachment and U.S. Mail to L. Norman Vaughn Birch, Esquire,
Esquire, 50 Central Avenue, Suite 700, Sarasota, Florida 34236 and
via facsimile and U.S. Mail to Charles V. Longo, 25550 Chagrin
Boulevard, Suite 320, Beachwood, Ohio 44122 on October 13, 2010.

THE EDWARDS LAW FIRM, PL
1901 Morrill Street
Sarasota, Florida 34236
Telephone: 941-363-0110
Facsimile: 941-952-9111

E-mail: sedwards@edwards-lawfirm.com
Counsel for Plaintiff, Senker

By: /s/ Sheryl A. Edwards
Sheryl A. Edwards

Florida Bar No.: 0057495

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 5 of 25ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE
REPRESENTATIONS OF THE SELLER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD
BE MADE TO THIS CONTRACT AND THE DOCUMENTS REQUIRED BY SECTION 718.503,
PLORIDA STATUTES, TO BE FURNISHED BY A DEVELOPER TO A BUYER OR LESSER.

ANY PAYMENT IN EXCESS OF 10% OF THE PURCHASE PRICE MADE TO DEVELOPER PRIOR TO
CLOSING PURSUANT TO THIS CONTRACT MAY BE USED FOR CONSTRUCTION PURPOSES BY THE

DEVELOPER.
SUMMER COVE ON SIESTA
A Condominium
Sarasota, Florida .
Condominium Purchase Agreement

This Agreement {this "Agreement"), made and entered into this L&t aay
of Fue | 200.6 , by and between SNAVELY SIESTA ASSOCIATES LLC, an
Ohio limitéd liability company, hereinafter called "Seller”, whose address is S
7139 Pine Street, Suite 110, Chagrin Falls, OH 44022, and the person(s) named uv
below, hereinafter called. "Buyer" or "Purchaser": Land true i

Buyer(s) Name(s): [2 eherk C ¢ Patoen | —

Residence Address: [OS [a hi, RR . toe

: G3 Vas?
City: MR aetvecn State  -% Zip [ass t

Office Address:

State Zip

City:

Telephone: Home: G10 © '14 22365 Business: 612 237149 / tee
Telecopy No.: Home: Business: G19 2149 {éor _.
Local Address:

City: State Zip

Phone No. :__

Cell Phone No.: €19 3 21

Social Security or Tax Identification No.

E-Mail Address: RS EWEER 7. S Cpe ye. (20,

Co-Broker: (2 i bw si 6 . (er lrron Etgagent ro

Co-Broker Address:

deere ere iain Ee (ET ERE EE NE te See LAA GH Ament semieUaieT ttn IANA ary SEIS STS SIT SL TI

Ce-Breker Phone No.: Telecepy Na.:

Ghee eee ne Namen Oe a mm Re ee te - Sm

ce-Breker Cel} ] Praene Ne

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 6 of 25Witnesseth:.

That for and in consideration of the premises and sums of money
hereinafter mentioned and the terms and conditions hereinafter set forth,
Seller agrees to sell and Buyer agrees to purchase the following described
property situated in Sarasota County, Florida:

Unit: ¢02 ¢ (Model : Cy pro "Unit"), SUMMER COVE ON SIESTA, a Condominium
(the "Project" or "Condominium"), according to the proposed Declaration of
Condominium and condominium plat thereof recorded or to be recorded in the
Public Records of Sarasota County, Florida, together with an undivided
interest in the common elements appurtenant thereto, and together with the
exclusive right to use parking space no. (s): , all upon the following
terms and conditions, to wit:

1. Price. Subject to adjustments as set forth herein, the total purchase
price (“Total Purchase Price”) of said Unit is: ${ WIS €08, 7 . The Total
Price shall be paid will be as follows:

a. s{ ie] Oe First Deposit comprised of any Reservation Deposit
previously submitted by Purchaser with respect to the Unit plus
the balance of which shall be deposited with the Escrow Agent (as
defined below) and shall be due upon signing this Agreement by
Purchaser, which taken together shall equal 10% of the Total

% Purchase Price (the “First Deposit”);
b. S$ [4 £€ee Second deposit in the amount equal to 10% of the Total

Purchase Price shall be deposited with the Escrow Agent, on the
Jater of: (i) thirty (30) days after the date of execution hereof
by Purchaser or (ii) fifteen (15) days after delivery to Purchaser
of written notice that the building permit has been issued if the
permit for construction of the improvements has not been issued as
of the date hereof, (the “Second Deposit” and together with the
first Deposit are sometimes hereinafter referred to as the
"Deposits");

c. The balance of the Total Purchase Price at the “Closing”, as such
term is defined herein, by cash or confirmed wire transfer of
funds to Seller's closing agent's account or by cashier’s check
drawn on a bank with offices in Sarasota County, Florida (subject
to adjustments and prorations as hereinafter set forth).
Purchaser is responsible for payment of all fees associated with
the wire transfer of any funds.

2. Required Statement. THIS AGREEMENT IS VOIDABLE BY BUYER DELIVERING
WRITTEN NOTICE OF THE BUYER‘’S INTENTION TO CANCEL WITHIN FIFTEEN (15) DAYS AFTER THE
DATE OF EXECUTION OF THIS AGREEMENT BY THE BUYER, AND RECEIPT BY BUYER OF ALL OF THE
ITEMS REQUIRED TO BE DELIVERED TO HIM BY THE DEVELOPER UNDER SECTION 718.503,
FLORIDA STATUTES. THIS AGREEMENT IS ALSO VOIDABLE BY BUYER DELIVERING A WRITTEN
NOTICE OF THE BUYER’S INTENTION TO CANCEL WITHIN 15 DAYS AFTER THE DATE OF RECEIPT
FROM THE DEVELOPER OF ANY AMENDMENT WHICH MATERIALLY ALTERS OR MODIFIES THE OFFERING
IN A MANNER THAT IS ADVERSE TO THE BUYER. ANY PURPORTED WAIVER OF THESE VOIDABILITY
RIGHTS SHALL BE OF NO EFFECT. BUYER MAY EXTEND THE TIME FOR CLOSING FOR A PERIOD OF
NOT MORE THAN FIFTEEN (15) DAYS AFTER THE BUYER HAS RECEIVED ALL OF THE ITEMS
REQUIRED. BUYER'S RIGHT TO VOID THIS AGREEMENT SHALL TERMINATE AT CLOSING.

3. Disposition cf Earnest Money. ll Deposits up to ten percent
(20%) cf the JTetsl Furchascs Frice shel] be held in escrow hy Firk Pinkerton, a
Frefessional Lsseciation  "Becrenw moent’) ; whose addvess jr T25 South Oranae

yea (Pe ye en pe me Foe wd toed ows "of we Oe ome wee Gg wet ee - va : . we ‘ya
a be Tyas . wtrtaq ctf A Wet, won ? rhe as, Jf. eae J we gh : 3 : Ce ee TT . «7% soe . 3 : .* } myoh

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 7 of 25deposit from the Escrow Agent upon request therefor. Escrow Agent shall place
all Deposits up to ten percent (10%) of the Total Purchase Price in an
interest bearing account and the interest earned thereon Shall at Seller's
election, be credited against the Total Purchase Price at Closing or delivered
to Buyer by separate check to Buyer within fifteen (15) days following
Closing, provided however, if Buyer shall default under this Agreement, all
interest earned thereon shall be paid to Seller. All Deposits in excess of
ten percent (10%) of the Total Purchase Price shall be held in a Special
escrow account as required by FPlorida Statutes Section 718.202(1), and may be
disbursed to Seller and used for construction purposes as provided by Florida
Statutes Section 718.202(1). Buyer shall not earn interest on Deposits in
excess of ten percent (10%) of the Total Purchase Price. Deposits up to ten
percent of the Total Purchase Price shall accrue simple interest commencing
upon the later of the expiration of Purchaser’s fifteen (15) day rescission
period described hereof or collection of such Deposits by the Escrow Agent
through the day immediately preceding the date of the Closing or if this
Agreement is properly terminated in accordance with its terms, on the date of
termination.

Upon disbursement of the Deposits as provided herein, Escrow Agent
‘ shall be discharged from all further liability and responsibility for such
funds and from all other further responsibility and liability under this
agreement .

Purchaser acknowledges that Escrow Agent is Seller's attorney and
agrees that in the event of a dispute hereunder Escrow Agent shall be entitled
to continue to represent Seller in any litigation notwithstanding that Escrow
Agent has acted as Escrow Agent hereunder.

All Deposits shall be held and disbursed by the Escrow Agent
pursuant to the terms of this Agreement and the terms of an Escrow Agreement
between Escrow Agent and Seller dated April 6, 2005, which Escrow Agreement is
incorporated herein by reference. Deposit funds in excess of ten percent (10%)
of the Total Purchase Price (i.e. in excess of the Initial Deposit) may be
used for construction purposes as provided in Section 718.202, Florida
Statutes.

4. Closing.

a. If the Unit. is substantially completed as of the effective
date of this Agreement, Closing (as defined below) of the purchase of the
subject condominium Unit shall take place on or before
- if the Unit is not substantially completed as of the effective date of this
Agreement, the Closing shall take place following substantial completion of
the Unit and common elements appurtenant thereto (as evidenced by the
recording of a surveyor's certificate of substantial completion pursuant to
Section 718.104(4) (e), Florida Statutes, and the issuance of a temporary or
final certificate of occupancy for the Unit by the appropriate governmental
authority). Seller shall deliver written notification of the date of the
Closing (the "Closing Date") to Purchaser not less than fifteen (15) days
prior to the date of Closing. The notice may be given prior to and in
anticipation of substantial completion. The Unit, as configured in Seller's
pians and specifications for the Condominium, shall be completed not later
than two (2) years from the date Purchaser signs this Contract. However, the
date for completion may he extended by reason of delays incurred by
circumstances beyond Seller's control, such as acts of God, or any other
grounds cognizable in Florida contract law as impossibility or frustration of
performance, including, without limitation, delays occasioned by rain, wind
and lightning storms. It is the intention cf the parties that this sale
qualify for the exemption provided by 15 U.S.C. Section 1702(a) (2), and that
nothing contained in this Agreement shal] be construed or SQ Operate as to any
obligations cf Seller ox rights of Buyer In a manner which would render said

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Rite SG

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 8 of 25exemption inapplicable. Subject to the provisions of this paragraph, time is
of the essence to this Agreement. Buyer shall not be allowed to take
possession of the Unit prior to Closing the purchase.

b. The Closing of the transaction contemplated herein
("Closing") shall be hela at the offices of Seller or Escrow Agent, in
Sarasota, Florida. At Closing, Buyer shall make the cash payment specified in
Paragraph 1(c) above and Simultaneously therewith Seller Shall deliver to
Buyer a good and sufficient Special Warranty Deed ("Deed") conveying to Buyer
an iusurable fee simple title to the Unit subject to: Declaration of
Condominium, Condominium Plat ana amendments thereto, the Articles of
Incorporation and Bylaws of the Condominivm Association, real estate taxes
assessed against the condominium property for the then current year, zoning
regulations, rights of the United States and/or State of Florida with respect
to filled lands, and casements, restrictions and reservations of record, which
do not prohibit the subject property from being used as a condominium
residence (collectively the "Permitted Encumbrances"). The issuance of a
temporary or final certificate of occupancy for the Unit together with the
Surveyors certificate of substantial completion shall be conclusive evidence
that the Unit is substantially complete.

c. In the event that Buyer does not close on the Closing Date
through no fault of Seller, the Buyer shall be deemed to be in default
hereunder. Should Seller agree in writing to reschedule Closing after Buyer's
default or at Buyer's request, or if Buyer is a corporation, partnership, or
limited partnership and fails to provide the documentation and/or information
requested by Seller, Seller's attorney or the title insurance underwriter and,
as a result, Closing is delayed, or if Closing is delayed for any other reason
{except for a delay desired by Seller), Buyer agrees to pay at Closing a late
charge equal to interest on the Total Purchase Price at the highest applicable
lawful rate ox eighteen (18%) percent per annum, whichever is lesser, from the
date the Closing was originally scheduled to the date of actual closing.
Except for condominium assessments, which shall be prorated as of the Closing
Date, ali other prorations will also be made as of the originally scheduled
Closing Date. Buyer understands that Seller is not required to reschedule or

permit a delay in Closing.

5. Furnishings.

a. Unless otherwise set forth in this Agreement, an Addendum
hereto or a separate agreement Signed by Seller and Buyer, Seller agrees to
equip and furnish the Unit at Seller's expense with the following: flooring,
refrigerator, oven, range or cooktop, microwave and hood, garbage disposal
unit, dishwasher, hot water heater, air conditioning and heating unit,
standard kitchen and bathroom cabinets, plumbing, and recessed lighting, all
as shown on the plans and Specifications. Buyer understands and agrees that
certain items such as the following, (which may be seen in models or shown in
illustrations), are not included with the sale of the Unit unless listed in an
Addendum to this Agreement now or hereafter executed by Seller and Buyer:
wall coverings, accent light fixtures, wall ornaments, drapes, blinds,
bedspreads, furniture, and other decorator accessories, lamps, mirrors,
graphics, pictures, plants, wallhung shelves, sconces, wall decorations,
kitchen accessories, linens, window shades and certain built-in fixtures,
flooring or trim.

b. The floor materials, if any, that Buyer intends toe install
(and specifications therefore), the Fleer materials to be installed by Seller
and any color or other selections permitted the Buyer for the Unit shall be
made by Buyer within fifteen (15) days after written notification by Seller to
Buyer. If Buyer fails or refuses to designate or select floor materials (and
Provide specifications therefore) or make color Or other selections within the
aforesaid time period required herein, Seller is authorized to make such color

Thy ° %

- 9 of 25
Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 9ospecifications therefore) as it q i
i 8 cems advisable in order to
continue without interruption, with its construction schedule fon reeset, f°

recognizes that the color and texture
e ' of the same do not alwavs
therefore, Seller shall not he responsible or liable for variations thereon

c. tf the Buyer is going to in
Stall either wood } i
aranites marble or other hard floor surface in his unit after closing no
vood f corang: tile, granite, marble or other hard Floor surface mist bes t
p sound proofing bed approved by the Seller or Condominium Association

6. Title Insurance. Prior to Clos;
245 ; : , osing, Seller shall deliv
a markerability tatle insurance commitment ("Title Commitment”) iseued. aoy
reputa le titie insurance underwriter acceptable to Seller (the "Title upon a
to the. ) evidencing good fee simple title in Seller to the Unit subject onl
closing, and to standard maw’ mortgage liens which are to be released at we
' r title insurance except: ;
Seller shall cause to he delivered Benet ea enon tosing,
. to Buyer a marketability title ;
policy ("Title Policy") insuring 3 , * Ly 1 © insurance
good fee simple title in Bu
in the amount of the Tota 54 yer to the Unit
Sncumbramces. tal Purchase Price subject only to the Permitted

7. Closing Expenses Buyer shall p:
ag Pp . pay to Seller at Closing as
(1 358) pene eee one an amount equal to one and 35/100ths sercent °
-35%) o e Tota urchase Price (the “Closing Fee”) i i
Seller shall use to cover the cost of the tit : title examinarion
title search, ‘title examinatio
settlement fee, Title Commitment and Title Policy, premium at promulgated.
Fares Gocumentary stamps on the Deed, and recording of the Deed in the public
xecords, tbat ie the eees mail, photocopying and facsimile fees (provided
} : e even & actual costs do not equal or exce
. ed the 1.
crosing Fee, Seller shall refund the remaining monies to Buyer). All other
closing expenses of the Buyer, including but not limited to the Buyer’s
expences incureed oe one loan closing costs, utility deposits and such other
urred a © request of Buyer shall be paid ai
not from the 1.35% Closing Fee In additi rah “bey at Choe ga
I 2. ition, Buyer shall pay at Closi
amount equal to any increase in the amount of documentary Stamps due on the

the Closing see eee nod nest for title insurance shall be deducted from
mortgage or other Einan y Suyer. In the event that the Buyer is obtainin
charges, costs and Cang the Buyer shall be responsible for all fees 3
limitation, ail vorteene oe related to such financing, including, without
charges, coste ana expencee, Che eee mitment and loan closing fees,

‘ . , ‘ v ANSUTESY 1
st Buyers equeee fe tones ej tit other costs, fees and expenses incurred

conection with closing this transaction “s

o. Default by Buver
3 yer. Sheuld Buyer fai}
Gue hereu a — . yer rail to make any of ¢
jnetrumente ce oF meg egepove scheduied, cr fail or refuse Yo execute erent
: es Feguired Co close this transaction or the scheduled date or.
, . i

wos c
oo.

™~,

>

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 10 of 25refuse to pay any costs or other I
Sums required by this Agreem i
default hereunder, then Seller may declare this Agreement terminated ona se

op aeten tigations hereunder. The provisions herein contained for

not a penalty tee pa ties Gamages are a bona fide provision for such and are
Unit fon afye : © par ies understand that by reason of the withdrawal of the
interested in ureh 8 general public at a time when other parties would be
Buyer defaults. Which ae the Unit, that Seller will have sustained damages if
detexminatior, oe Gamages will be substantial but will not be Capable of
provision for’ liquidated and screca nega therefore, as aforesaid, the
Agreement, as a provision beneficial to both esstie mbcorporared in this

9. Default by Seller If Seller fails o
. rv refuses to perform thi
agreement, all Deposits shall be returned to Buyer on demand together with any
interest earned thereon, and Buyer shall not thereby waive any right or remed
he may have because of such refusal. wy

10. Miscellaneous Provisions.
Ae US FrOVISIONS

a. Real property taxes and assessmen ini
maintenance fees for the subject condominium Unit shall be adjuster wee
prorated as of the date of closing. Governmental special assessments passed
aiter the date hereof shall be paid by Buyer. In the event real estate taxes
and/or assessments shall not have been separately assessed to the subject
condominium Unit at the time of Closing, the taxes and/or assesenenta’
applicable to said Unit shall be determined by applying to the net anticipated
taxes and/or assessments for the year by the percentage used for determinin
that Unit's share of the Common Expenses as set forth in the Declaration of
Condominium, which sum shall be prorated and paid by Buyer to Seller at the
time of Closing and Seller shall pay the real estate taxes and/or assessments

Using the maximum discount allowed, Seller and Buyer agree to reprorate t
and/or assessments once the final tax bill is issued. ® om

b. This Agreement shall be bindin i

g upon the parties hereto,
their heirs, personal tepresentatives, successors and assigns. This Agreement
my pot be ae eangned by Buyer without the prior written consent of the Seller

nsent, 1k given, shall be subject to such condit} |

nc ations as may be

specified by the Seller including, but not lim; *
. ' imited to, the payment to Se

of an assignment fee. The fact that the Seller refuses to Give its consent to

agrees with offense ipke a listing agreement for the sale of the Unit with a
arasota, Manatee, Charlott P3

Florida, or to advertise or ivertised foo seve Gounty

' Cause the Unit to be advertised f i
newspaper, trade magazine or other ‘ 's so or in genuren?

2 publication which is sold or in gener 1
eee keen in Sarasota, Manatee, Charlotte, Pinellas or hee County. Florida
Pe ort parearanhe ee eis title to the Unit. A breach of the provisions.
t g Snaii be a default hereunder by B itli
rc uyer entit

exercise its rights and remedies under this ngreemens. nang Seiler to

4
yt
nn

Filed for Record 10/13/2010 01:20 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 11 of 25Cc. Buyer herein specifically grants authority to the Seller to
record and place among the Public Records of sarasota County, Florida, prior
to Closing, all papers required to be filed by the Florida Statutes in order

d. Until such time as all of the units in the SUMMER COVE ON
SIESTA development are sold, the Seller reserves the right to make use of its
unsold units and the common elements of the condominium as are necessary for
its sales program.

¢

e. Seller reserves the right to modify ox amend the above
described condominium documents and Declaration of Covenants and Restrictions.
Buyer shall receive a copy of any such amendment made to the Condominium
documents and/or Declaration of Covenants and Restrictions. Nothing herein
contained shall require Seller to secure Buyer's approval to any Change in the
prices or terms upon which Seller may sell the remaining Units in the.

Condominium.

£. Construction of the subject Unit shall be Substantially in
accordance with plans and specifications prepared by HKS Architects Inc.,
subject to such modifications as may be required by governmental authorities
or as Seller, in its sole discretion, may deem necessary. ?
sere on while the Unit was in the Possession of the Buyer. Buyer's and Ya
setler's representatives shal] Sion said inspection sheet; provided however. =

a teen neem

-98013775 Page 14 of 25
Filed for Record 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98 gthe signature of Seller's representative shall not he deemed an admittance of
the alleged defect. Failure of Buyer to make inspection when requested shall
not delay the Closing and shali be deemed a waiver of Buyer's right to
inspection and correction of deficiencies.

S. Seller shall have the right to litigate aq valorem tax
matters, impact charges, service fees and interim and/ox special assessments

t. This Agreement shall be construed in accordance with the law
of the State of Plorida.

u. All representations, duties and obligations of the Buyer
pursuant to this Agreement shall survive the closing hereunder.

Vv. Buyer agrees with Seller that: (i) Seller is the sole
developer of the Project, (ii) this Agreement supersedes any and all previous
understandings and agreements between the parties hereto, and it is mutually
understood and agreed that this Agreement represents the entire agreement
between the parties hereto, (iii) no representations, advertisements,
newsletters, printed material (excluding the condominium documents referenced
in Exhibit "A") or inducements prior hereto, which are mot included and
embodied in this Agreement, shall be of any force and effect, and (iv) this
Agreement may only be amended and/or modified by an instrument in writing
Signed by the parties hereto,

x. The Florida Legislature has determined that notification of
the presence of Radon to Persons acquiring or selling any commercial or

language: Radon Gas: Radon is a naturally occurring radioactive gas that,
when it has accumulated in @ building in sufficient quantities, may present
health risks to persons who are exposed to it Over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from

12. The Condominium. Buyer agrees to be bound by the Declaration of
Condominium, the Articles ef Incorporation and Bylaws of the Condominium
ASsociation and all other rules, regulations, ordinances and restrictions
pertaining to this Condominium.

12. Receipt for Documents. Buyer agrees to purchase the Unit pursuant
CO the terms and conditions of this Agreement and by execution of this
Agreement, Buyer acknowledges receipt of copies of the condominium documents
as set forth in Exhibit "an attached hereto ang incorporated herein by
reference (the "Condominium Documents") . By expiration of the rescission
period specified in paragraph 2, Buyer shall he deemed to have approved and ma
ratified the Condominium Documents and the provisions thereof and agreed thet RK
the Condominium Mocuments ane Charges thereunder are fair and reasonable. is
@

one —

- NC Dkt-98013775 Page 15 of 25
led for R d 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509
Filed for RecorBuyer shall further be deemed to have agreed to be bound by all the terms,
conditions and rules and regulations therein specified and to be liable for
and pay its percentage share of common expenses, including, but not limited
to, management fees and expenses, if any.

13. Deferred Construction. Purchaser understands and agrees that
certain elements of the Condominium may be completed with temporary materials
to be replaced with final materials or may not be completed and completion of
the improvement of such items may be deferred by Seller at Seller's option for
a reasonable period (including, without limitation, for the reason of avoiding
destruction or damage to such materials or items by trucks, vans, movers and

permitted herein, no alterations, additions, omissions or deviations to or
from the plans and specifications for the Unit initialed by or made on behalf
of Purchaser, its agents or representatives shall be made unless agreed upon
in writing by Purchaser, Seller and the Seller's general contractor as
reasonably approved by Seller and the costs thereof (including any and all
related design costs) is paid directly to the Seller's general contractor by
Purchaser in advance of the commencement of any work by Seller's general
contractor.

1S. Conditions to Closing. Seller’s obligations hereunder are subject
to and conditioned upon the following:

(a) Pre-Sale Requirement: If Seller has been unable to obtain
purchase contracts for at least sixty percent (60%) of the Units in the

Unit in the Condominium, Seller may unilaterally terminate this Agreement hy
delivery of written notice to Purchaser and, upon delivery of such notice ana
refunding to Purchaser, all Deposits actually submitted by Purchaser in
accordance with the terms of this Agreement, including any and all accrued
interest thereon, Seller Shall have fulfilled ali of Seller's obligations to

terminated and be of no further force and effect and Purchaser, Seller and

paragraph shall be construed to extend the two (2) year period for completion
of construction of the Condominium described in Paragraph 4 hereof. Nothing
herein contained shall be construed ox so operate in a manner inconsistent
with 24 CFR§1710.5 and 61 F.R. 13601-13611, Supplemental Information to Part
1710; Guidelines for Exemptions Available Under the Interstate Land Sales Full
Disclosure Act, Part IV(b), Paragraph 6.

{b) Acquisition of the Property. As set forth in Seller's
affidavit ("Affidavit") evidencing Seller’s interest in the real property upon
which the condominium is to be developed (the "Property"), which Affidavit is
attached as an exhibit to the Prospectus for the Project (the "Prospectus"),

containing the Unit is to be developed from the fee Simple owners of such

Owner of the Property pursuant to the Contract between Seller and the current
ree simple owner.

16. Energy Performance and Energy Efficiency Rating Disclosure:
« = - TY eT Sy eierary
Pursuant to Section 253.996, Florida Statutes, Purchaser may request that

Seller Ceuseé a State Certified Energy Rater to perform an energy efficiency
rating on the Unit. Furchaser heteby releases Seller Tram any responsibility

PA-~J] i >

-98013775 Page 16 of 25
Filed for Record 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98 gor liability for the accuracy or level of rating and Purchaser understands and
agrees that this Agreement is not contingent upon Purchaser approving the
rating, that the rating is solely for Purchaser's own information and that
Purchaser will pay the total cost of obtaining the rating. A copy of the
Florida Building Bhergy-Efficiency Rating System brochure prepared by the
Florida Department of Community Affairs in accordance with Section 353.996,
Plorida Statutes, is attached hereto as Exhibit "B" and incorporated herein by
this reference. PURCHASER ACKNOWLEDGES RECEIPT OF THE ENERGY-EFFICIENCY RATING
BROCHURE DISTRIBUTED BY THE STATE OP FLORIDA DEPARTMENT OF COMMUNTTY AFFAIRS
AND STATES THAT PURCHASER WAIVES THE OPPORTUNITY TO OBTAIN AN ENERGY -
EFPICIENCY RATING ON THE UNIT. Sélier is Providing this disclosure Statement

information contained herein. Purchaser acknowledges its receipt, review and
understanding of this disclosure statement Prior to, or at the time of,
Purchaser's execution of this Contract.

17. Access Monitoring: The Condominium Association may maintain or
Support certain activities in the Unit, Project Or building containing the
Unit designed to make the area safer than it otherwise might be, but the
Condominium Association is not obligated to do so. Neither Seller, the
Condominium Association nor any other community organization or any
predecessor, successor of any of them, or any Of their affiliates,

compromised or circumvented, or will prevent loss by fire, smoke, burglary,
theft, hold-up, assault, or otherwise, or in all cases will provide the
detection or protection for which the System is designed or intended or {c}
makes any other representation or warranty, expressed or implied, including
any express or implied warranty of merchantability or fitness for any

18. Seller's Contract Rights: Purchaser agrees, that to the extent
permitted by applicable law (including, without limitation, Chapter 718 of the
Florida Statutes), Seller may assign, convey, transfer or factor (singularly
and collectively, a "Transfer") some or all of its rights under this
Agreement; provided, however, such a Transfer, shall not affect or limit
seller's obligations or liability under this Agreement or the Condominium
Documents provided to Purchaser. The provisions of this paragraph 18 shall be
Self-operating, not require execution and delivery of additional] documents and
be for the benefit of Seller and any of its lenders, SUCCESSOXS, assignees or
Uransferees. Notice of such assignment may be delivered to Purchaser at the
address set forth in this Agreement.

13. Change in Entity: Purchaser acknowledges and agrees that (i) a
conversion by Seller of Sts form of business Organization (ii) « merger by :
Seller with any Entity flies) or (i373) a change of Seller's name or eny or all yw?
\ Side
PR-I2

25
- 8509 NC Dkt-98013775 Page 17 of

d 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 00

Filed for Recor -of the above in combination, shall not be deemed to be a material or adverse
change.

20. Construction Industries Recove Pund: Pursuant to Section
489.1425 of the Florida Statutes, Seller provides the following notice.
PAYMENT MAY BE AVAILABLE PROM THE CONSTRUCTION INDUSTRIES RECOVERY FUND IF You
LOSE MONEY ON A PROJECT PERFORMED UNDER CONTRACT, WHERE THE LOSS RESULTS FROM
SPECIFIED VIOLATIONS OF FLORIDA LAW BY A STATE LICENSED CONTRACTOR. FOR
INFORMATION ABOUT THE RECOVERY FUND AND FILING A CLAIM, CONTACT THR FLORIDA
CONSTRUCTION INDUSTRY LICENSING BOARD AT THE POLLOWING TELEPHONE NUMBER AND
ADDRESS (850)487-1395,1940 NORTH MONROE STREET, TALLAHASSEE, FLORIDA 32339-
1039,

21. Pursuant to Florida Statutes the following notice is given:

CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL A WRITTEN NOTICE

PROVIDE YOUR CONTRACTOR AND ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN
PROFESSIONALS THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND
MAKE AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE

SUBCONTRACTORS, SUPPLIERS, OR DESTCN PROFESSIONALS. THERE ARE STRICT
DEADLINES AND PROCEDURES UNDER FLORIDA LAW.

22. PROPERTY TAX DISCLOSURE SUMMARY: BUYER SHOULD NOT RELY ON THE
SELLER'S CURRENT PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT THE BUYER
MAY BE OBLIGATED TO PAY IN THE YEAR SUBSEQUENT TO PURCHASE A CHANGE OF
OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE PROPERTY THAT
COULD RESULT IN HIGHER PROPERTY TAXES. IP you HAVE ANY QUESTIONS CONCERNING
VALUATION, CONTACT THE COUNTY PROPERTY APPRAISER'S OFFICE FOR INFORMATION.

This is intended to be a valid and binding contract. TF you do not
fully understand this contract, consult an attorney before you sign it.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.

Signed, sealed and delivered SNAVELY SIESTA ASSOCIATES LLC, an
in the presence of: Ohio limited diability company

(CORPORATE SEAL)

ess}

*(Print name of witn
AS to Seller SELLER
Executed by Seller on 28 [ole 9

~ >
A .
yd
S20
PA-13 : x

- Page 18 of 25
Filed for Record 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 PagANY PAYMENT IN EXCESS OF 10% OF THE PURCHASE PRICE MADE TO DEVELOPER PRIOR TO
CLOSING PURSUANT TO THIS CONTRACT MAY BE USED FOR CONSTRUCTION PURPOSES BY THR

DEVELOPER. ; Z—

* gas By. S@nVve Pri | Buyers Name: Qt k- tren C., Coben.

* (Print name of witness) (s ~ | , | A> ,
beset LS ip Day |

Ca ELLY TTiseh WLLL EAN ful

* rian. SEM CY Print Buyers Name: Paps 4 A benteor

* (Print name of witness)

As to Buyer BUYER

Executed by Buyer on I {Qloz oy

G: \COCUMENTATSS\snavely\ Purchase Agreement for Campiete Unita,dec

Filed for Record 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 19 of 25Exhibit "A" to Purchase and Sale Agreement
ee a  amneremeeea
Receipt For Condominium Documents

The undersigned acknowledges that the documents checked below, have been
received or, as to plans and specifications, made available for inspection.
Name of Condominium: SUMMER COVE ON SIESTA, a Condominium

Address of Condominium: 6101 Midnight Pass Road, Sarasota, Florida.

Place a check in the column by each document received or, for the plans and
specifications, made available for inspection. If an item does not apply,
place "N/A" in the column.

DOCUMENT RECEIVED
tne ee CEL VED

Prospectus Text

Declaration of Condominium

i
—————______._____%
Articles of Incorporation x
Bylaws ee
Estimated Operating Budget x
Form of Agreement for Sale or Lease x
Rules and Regulations , X

Covenants and Restrictions X
XK

Ground Lease N/A
A renee ener eee A AA
Management and Maintenance Contracts

More Than One Year N/A
CNA

Renewable Management Contracts N/A
ES eects a

Lease of Recreational and Other Facilities
to be Used Exclusively by Unit owners of

Subject Condominiums N/A
SS tn

Form of Unit Lease if a Leasehold N/A
a A SEMOLG

Declaration of Servitude X
te

Sales Brochure x
i

Phase Development

Description (See 718.503 (2) {k) and 504 (14)) | N/A
SSSR ARE ROR ESE 188 503 (2) (k) and 504 (14)) a

Lease of recreational and other facilities
to be used by unit owners with other condo's
{See 718.503(2) (h))

Filed for Record 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 20 of 25Description of Management for Single
Management of Multiple Condominiums
(See 718.503(2) (k))

Conversion Inspection Report W/A
Conversion Termite inspection Report N/A
Plot Plan x
Floor Plan x

Survey of Land and Graphic Description of

Improvements

Executed Escrow Agreement x
Plans and Specifications Made Available
F4AaNS Ana specifications ener crennetnnrnananinantiannngernnnt ee AVAL LAD LE

Frequently Asked Questions and Answers Sheet x
Affidavit of Developer Re: Developer's Interest in the Land Xx

THIS AGREEMENT IS VOIDABLE BY BUYER DELIVERING WRITTEN NOTICE OF THE BUYER'S
INTENTION TO CANCEL WITHIN FIFTEEN (15) DAYS AFTER THE DATE OF EXECUTION OF
THIS AGREEMENT BY THE BUYER AND RECEIPT BY BUYER OF ALL OF THE ITEMS REQUIRED
©O BE DELIVERED TO HIM BY THE DEVELOPER UNDER SECTION 718.503, FLORIDA
STATUTES. THIS AGREEMENT IS ALSO VOIDABLE BY BUYER BY DELIVERING WRITTEN
NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN PIFTEEN (15) DAYS AFTER THE
DATE OF RECEIPT FROM THE DEVELOPER OF ANY AMENDMENT WHICH MATERIALLY ALTERS OR
MODIFIES THE OFFERING IN A MANNER THAT IS ADVERSE TO BUYER. ANY PURPORTED
WAIVER OF THESE VOIDABILITY RIGHTS SHALL BE OF NO EPPECT.. BUYER MAY EXTEND
THE TIME FOR CLOSING FOR A PERIOD OF NOT MORE THAN FIFTEEN (15) DAYS APTER THR
BUYER HAS RECEIVED ALL OF THE ITEMS REQUIRED. BUYER'S RIGHT TO VOID THIS
AGREEMENT SHALL TERMINATE AT CLOSING.

Executed this [xty day of Duty , 2007

CADOCUMENTIT SSinrthWeseipi for Condominium Docummts. doc

Filed for Record 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 21 of 25STATE OF FLORIDA

TWELFTH JUDICIAL CIRCUIT
P.O. Box 48927
SARASOTA, FLoRmA 34230
TELEPHONE (941) 861-7929

FAcsimice (941) 861-7912
Rick DE Furia LINDA K. POPPELL

JUDICIAL ASSISTANT

Circurr JUDGE september 27, 2010

Sheryl A. Edwards, Esq..
1901 Morrill Street
Sarasota, FL 34236

Leslie Loftus, Esq.
50 Central Avenue, Suite 700
Sarasota, FL 34236

Charles V. Longo, Esa.
25550 Chagrin Blvd., Suite 320
Beachwood, Ohio 44122

RE: Senker v. Snavely Siesta Associates - Case #2007 CA 8509
Dear Counsel:

Based upon the defendant's motion to release funds from the court registry and
my review of the opinion filed May 21, 2010 by the 2™ District Court of Appeal, I signed
an order on July 10, 2010, in which all funds being held in the court registry in the
above-style case were to be immediately released.

Today | have reviewed Attorney Sheryl Edwards’ letter dated September 21,

- 2010, which brought.to my attention for the first time ihat the funds, at:some time, were
apparently held in escrow by the firm of Kirk, Pinkerton, P.A. Obviously this _
discrepancy needs to be resolved. If the parties cannot reach agreement, a hearing
should be set.

éK De Furia
‘Cifcuit Judge

Filed for Record 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 22 of 25KIRK = PINKERTON, PA, °° 2ur Sommunity

Pe eorviiy

ATTORNEYS AT LAW JAMES E. KIRK, tvo2-1983 JOHN C PINKERTON, (916-1997 DONALD C MeCLELLAND, JR. 1922.2003 WILLIAM C, STRODE, RETIRED
ROBERT J. CARR SCOTT E. RUDACILLE *ROAND CERTIFIED IN WILLS, TRUSTS
ha “HE = ts AND ESTATES
L. NORMAN VAUGHAN-BIRCH SUE A. JACOBSON AAROARD CERTIFIED BUSINESS
TIMOTHY S,. SHAW DOUGLAS J. ELMORE LITIGATION LAW
. + BOARD CERTIFIED REAL ESTATE LAW LAWYER

WILLIAM E, ROBERTSON, JR. ZACHARY L. ROSS *# BOARD CERTIFIED CIVIL TRIAL ATTORNEY
DAVID M. SLLBERSTEIN 94*** JERILYN H. REED ++ BOARD CERTIFIED TAX ATTORNEY
MARK P. BARNEBEY™ REBECCA J. PROCTOR W BOARD CERTIFIED IN CITY, COUNTY

‘ AND LOCAL GOVERNMENT LAW
THOMAS D. SHULTS SHARON P. O'DAY © ALSO ADMITTED IN MARYLAND
GRAIG P, COLBURN, JR. KU RTE E. LEE“* @© 45.50 ADMITTED IN NEW MEXICO

4 ALSO ADMITTED IN COLOHADO

BRADLEY W. HOGREVE * oe TR IT ital @ ALSO, 2D IN NE
IESLLS W. LOPTUS [peecer Vel EMG arma eney one
Is}
1, GCT 06 2010 J October 5, 2010
Direct Dial:
BY: woe nee nueeeenenees (941) 364-2404

E-Mail: nermanvb@kirkpinkerion.com

Honorable Rick De Furia
Circuit Judge

Post Office Box 48927
Sarasota, Florida 34230

Re: Senker vs. Snavely Siesta Associates
Case No. 2007 CA 8509

Dear Judge De Furia:

Leslie Loftus of my office recently gave me a copy of your letter dated September 27, 2010, to which lam now
_ responding.

The law firm of Kirk Pinkerton did not prepare the Order which the Court rendered on July 10, 2010. That
was prepared and submitted by our co-counsel, Charles V. Longo.

Ms. Edwards called me Friday soliciting my assistance. We have not been engaged by the Defendant, Snavely
Siesta Associates, Inc., post-appeal, so I would ask that Mr. Longo and Ms. Edwards work on resolving the

“discrepancy” as described by this Court.

Very truly yours,

KIRK = PINKERTON

Nusa.

L. NORMAN VAUGHAN-BIRCH

For the Firm
LNVB/Im :
Ce: Shery! A, Edwards, Esq. eee.
Charles V. Longo, Esq. EXHIBIT
PLAZA AT FIVE POINTS

SARASOTA MAILING ADDRESS 50 CENTRAL AVE., SUITE 700 1301-6th AVE. W., SUITE 102 —

P.O. BOX 3798 SARASOTA, FLORIDA 34236-5742 BRADENTON, FLORIDA 34205-7435

SARASOTA, FLORIDA 34230 TELEPHONE 941 #3642400 TELEPHONE.941 © 74492288

attarney@kirkpinkerton.com FACSIMILE 941°364°2490 FACSIMILE 941°744¢9691

Filed for Record 10/13/2010 01:21 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-98013775 Page 23 of 251/11/2010 16:47 FAA 3799463 4) 002/007 9

CHARLES V. LONGO CO., LPA

ATTORNEYS AT LAW
25550 CHAGRIN BOULEVARD * CHARLES V. LONGO
SUITE 320 MATTHEW DB. GREENWELL
BEACHWOOD, OHIO) 44722

Of Counsel
Phone 216-514-1919 MARIA E. QUINN
FAX 216-593-0914 . * also admit n Pennetta

cviongo@cviongolaw.com
www.cviongolaw.com
October 11, 2010

VIA FACSIMILE & ORDINARY MAIL

The Honorable Rick DeFurta
Judge — State of Florida
Twelfth Judicial Circuit

PO BOX 48927

Sarasota FL. 24230

RE: Richard C. Senker, etc. vs. Snavely Siesta Associates, LLC
Sarasota County Case No.: 2007 CA 008509 NC
Our File No.: 3058

Dear Judge De Furia:

Late last week, | spoke with Attorney Edwards regarding her September 21, 2010
correspondence directed to your Honor, as well as, Plaintiffs’ Motion for Order Directing
the Defendant to return funds to escrow. Unfortunately, we were unable to reach an
agreement concerning this issue.

| was surprised to learn of Plaintiffs’ objection to the funds being released. This
objection comes approximately four (4) months following the filing of Defendants Motion to
Release the Funds. Attached to the Defendants’ Motion was the proposed court order,
Plaintiff never opposed the Motion and further failed to object to the proposed court order
which you signed on June 10, 2010.

The Order issued by your Honor did not impose any direction to return any funds to
escrow, or any restriction on the disbursement of those funds. | have been involved with
the litigation aspect of the Senker transaction and did not appreciate the fact that funds
were still held in escrow at the time the original Complaint was filed by the Plaintiff. | have
advised Attorney Edwards that my client has pledged the funds it received to the lender
involved in the Summer Cove project. Notwithstanding, my client will be defending the
claims which remain pending in the underlying lawsuit through to trial.

| believe that the remaining factual claims which may need to be resolved by your
Honor involve the Plaintiff's claim th