Party Notice: BEAUGRAND, IRIS vs. O'TOOLE, ROBERT

On May 11, 101 a Party Notice was filed involving a dispute between Beaugrand, Iris, and O'Toole, Robert, for Other - Matters not falling within the Other Civil Subcategories in the District Court of Charlotte County.

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IN THE 207 CIRCUIT COURT IN AND FOR
# 91378636 E-Filed 06/19/2019 06:39:31 PM

CASE #2017 CA 000181

IRIS BEAUGRAND, etc.,
Plaintiff/Counter-Defendant,
. BOB O’TOOLE’S NOTICE OF
ROBERT O’TOOLE, FILING TRIAL TRANSCRIPT
Defendant/Counter-Plaintiff. /

PLEASE TAKE NOTICE that Defendant/Counter-Plaintiff ROBERT
O’TOOLE has filed the incorporated material made a part hereof consisting of
the trial transcript! in Beaugrand v. O’Toole, Case Number 2016 CA 6351 NC
(12 Circuit Court in/for Sarasota County) to be considered by the Court in

connection with the pending motions for summary judgment.

I DO HEREBY CERTIFY that a true and correct copy of the foregoing
was caused to be served by electronic mail on June 19, 2019 upon Steele T. Williams,
Esquire, STEELE T WILLIAMS, PA, attorney for plaintiff, Pineapple Place, 1381
McAnsh Square, Sarasota, Florida, 34236; Stcele TW’

illiams(@Comeast.Net.

Respectfully submitted,

BRET SHAWN CLARK, PA
PO BOX 1133

Englewood, Florida 34295

Tel: (941) 404-4704

BretClark@WebNetLawyer.Com

(ret Clark

Bret Clark, Esquire FB #384038
Attorney for Robert O’Toole

' Copies of the transcript previously filed by Iris Beaugrand are not readable.OTOOLE, ROBERT APPEALED FROM THE CIRCUIT COURT IN
APPELLANT AND FOR SARASOTA COUNTY, FLORIDA,
THE HONORABLE ANDREA MCHUGH,
VS PRESIDING JUDGE

BEAUGRAND, IRIS L.T. CASE NO: 2016 CA 006351 NC

APPELLEE
H.T. CASE NO: 2D18-1935

RECORD ON APPEAL

TRIAL TRANSCRIPT(S)Filing # 73790141 E-Filed 06/19/2018 03:31:31 PM

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

CASE NO. 2016 CA 006351 NC

IRIS BEAUGRAND,
Plaintiff/Counter-Defendant,

vs.

ROBERT O'TOOLE,

Defendant /Counter-Plaintiff.

TRIAL TRANSCRIPT OF PROCEEDINGS
VOLUME I -- Pages 1-191

DATE TAKEN: Wednesday February 28, 2018
Thursday March 1, 2018
PLACE: Lynn N. Silvertooth Judicial Center

2002 Ringling Boulevard
Courtroom 6C
Sarasota, Florida

BEFORE: HONORABLE ANDREA McHUGH
Circuit Court Judge

STENOGRAPHICALLY REPORTED BY

AMY E, ROBERTS
Registered Professional Reporter
Registered Merit Reporter

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led 06/19/2018 03:43 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
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APPEARANCES
APPEARING ON BEHALF OF PLAINTIFF/COUNTER-DEFENDANT

STEELE T, WILLIAMS, Esquire
Steele T. Williams, P.A.
1381 McAnsh Square
Sarasota, Florida 34236
941-378-1800
SteeleTWilliams@comcast.net

APPEARING ON BEHALF OF DEFENDANT/COUNTER-PLAINTIFF

BRET CLARK, Esquire

Bret Shawn Clark, P.A.
P.O. Box 1133

Englewood, Florida 34295
941-404-4704
BretClark@WebNetLawyer.com

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INDEX OF PROCEEDINGS

OPENING STATEMENTS

By Mr. Williams
By Mr. Clark

WITNESSES FOR THE PLAINTIFF/COUNTER~DEFENDANT

IRIS BEAUGRAND

Direct, by Mr. Williams
Cross, by Mr. Clark
Redirect, by Mr. Williams

Rebuttal, by Mr. Williams
ROBERT O'TOOLE

Direct, by Mr. Williams
Cross, by Mr. Clark

WITNESSES FOR THE DEFENDANT/COUNTER-PLAINTIFF
ROBERT O'TOOLE

Direct, by Mr. Clark
Cross, by Mr. Williams
Redirect, by Mr. Clark

IRIS BEAUGRAND

Direct, by Mr. Clark
Cross, by Mr. Williams

CLOSING ARGUMENTS

By Mr. Williams
By Mr. Clark

CERTIFICATE OF REPORTER

50
75
180
345

199
231

244
276
301

310
335

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Number

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PLAINTIFF'S EXHIBITS
Description
Deed to Bayshore Property
Suntrust and Regions
Mortgages

Deed to 808 lst Street

Sales Contracts to Buy
808 lst Street Property

Power of Attorney of
Heidrun Riedner

Lease Regarding Gallery
Unit

Emails Between Parties
Regarding Gallery Unit

Horse Registration Paperwork
and Receipt

Note/Agreement to Pay
Deposition Transcript of
Defendant with Exhibits
Progress Docket Report

Copy of Judgment

Certificate of Delinquency

Copy of Satisfaction of
Judgment Payoff

Copy of Settlement
Agreement

Copy of Receipt for Funds
Composite of Wire Transfers

from Heidrun Riedner

Composite of Beaugrand
Checking Account Documents

Introduced

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57

343

281

343

70
293

188

189

290

293
296

345

Received
69
69

284

190

298

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Number

DEFENDANT'S EXHIBITS
Description

2017 Property Appraiser
Profile Sheet

Deed Vesting Property in
O'Toole, Circa 2003

2006 Wells Fargo Foreclosure
Case Docket Sheet

2006 Wells Fargo Foreclosure
Case 2006 Return of Service

2006 Wells Fargo Foreclosure
Case 2007 Motion to Dismiss

2006 Wells Fargo Foreclosure
Case 2007 Order of Dismissal

Late 2007 Wells Fargo
Foreclosure Docket Sheet

Late 2007 Wells Fargo
Foreclosure Return of
Service on Beaugrand

Late 2007 Wells Fargo
Foreclosure Complaint

08/27/07 Payoff Request for
O'Toole's Child Support

Late 2007 Wells Fargo
Foreclosure December
Dismissal

11/26/07 Bayshore Mortage

11/26/07 WROS Warranty Deed
to Bayshore

Child Support Enforcement
Case Docket Sheet

Child Support Enforcement
Case Payoff Request

205

244

100

115

Introduced Received

205

108

109

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Number

DEFENDANT'S EXHIBITS CONTINUED
Description

Child Support Enforcement
Case Payoff from
Support Enforcement

Child Support Enforcement
Satisfaction of Judgment
January 2008 Regions
Equity Line

2017 Property Appraiser
Profile Sheet

11/24/15 Email Removing
Beaugrand as Buyer
Addendum Removing Beaugrand
as Purchaser

11/10/15 Short Sale
Agreement

Closing Statement

Final Title Commitment
Dated 11/11/15

December 2015 Short Sale
Affidavit

Late 2015 Emails To/From
Beaugrand & Fisher,
Re: QCDs

Warranty Deed to O'Toole
Effective 12/18/15

Handwritten QCD to Beaugrand
Dated 01/20/16

12/07/15 Questioned "Note"
Purportedly in Favor of Rieden

Complaint Filed by Beaugrand
for Rieden in Charlotte County

116

120

153

153
153

153

Introduced Received

109

120

154

134
194

154

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DEFENDANT'S EXHIBITS CONTINUED

Description Introduced Received
2017 Property Appraiser 79 98
Profile Sheet

December 2004 Deed to Iris 79 98
from Iris & Hans Wolfgang

November 2005 Mortgage on 83 98
Pinto ($400,000)

November 2005 NOC on Pinto 83 98
03/03/17 Eviction Letter 301 308
from Williams

03/21/17 Responsive Letter 301 308
from Clark

04/11/17 Follow-up Letter 301 308
from Clark

POA for Klaus to Iris 123 124
Beaugrand Dated 07/20/12

with Affidavit

Copy of Warranty Deed 343

Dated 09/26/17

09/15/16 Email to O'Toole 305 308
from Beaugrand

11/17/16 Demand Letter 307 308
from Williams to O'Toole

Copy of Notice to Produce 332

at Trial

Copy of Bank Receipts 178 237
#2017559000

Sarasota Construction, Inc, 325

Invoice

Sarasota County Permit 336 336
#0612068500B1

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PROCEEDINGS

THE COURT: All right. Good morning.

MR. CLARK: Good morning.

THE COURT: We're here in the matter of
Iris Beaugrand versus Robert O'Toole, case
number 2016-CA-6351. I assume you're Miss
Beaugrand; is that right? And are you
Mr. O'Toole? All right. Good morning.

And Mr. Clark and Mr. Williams?

MR. WILLIAMS: Yes, ma'am,

THE COURT: All right. I did review the
Complaint, the Answer with the Counterclaim, and
the 11 Affirmative Defenses. I reviewed the
Answer and the Affirmative -- 9 Affirmative
Defenses to the Counterclaim and, also, the
Reply. I saw that you all had filed your
witness and exhibit lists in a timely fashion.
T also saw there was a request for judicial
notice of two additional court cases and, also,
I think there were requests for production that
may remain outstanding.

So is there anything you want to discuss
before we begin the trial?

MR. WILLIAMS: Your Honor, I think both

sides have come together as far as these are my

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10 exhibits that I know need to be identified,
and we've got them ready to be identified, so to
ease --

THE COURT: Sure.

MR. WILLIAMS: -- the testimonial
evidence. And opposing counsel as well has his
exhibits already marked.

THE COURT: Okay.

MR. WILLIAMS: And ready to be identified,
at least for the record purposes.

THE COURT: All right. And are you -- are
either side making any objections to the
admissibility of any of those exhibits, or do
you agree those all come in?

MR. WILLIAMS: It just depends on the use
of the exhibits as to the admissibility. I
think we're in general agreement that
everything's admissible. There are a couple of
things that T don't think are admissible -- is
admissible evidence, but I think they need to be
marked for identification purposes.

THE COURT: Okay. All right.

MR. CLARK: Same.

THE COURT: Do you want to approach the

clerk and have those marked? We usually do

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plaintiff with numbers and defendant with
letters.

MR. WILLIAMS: We have 10 exhibits marked.

THE CLERK: Okay. What about 11
through -- there's nothing behind those.

MR. WILLIAMS: Those are for impeachment
and rebuttal, if we get there, depending on the
testimonial evidence.

THE CLERK: I'm going to put the label on
just in case and if you want to --

MR. CLARK: Mine is in this form, all
marked with letters.

THE CLERK: Do you have a letter at the
bottom?

MR. CLARK: Yep, yep. And multiple pages
are double-sided to save on paper in order to
reduce the carbon footprint of the court.

THE CLERK: Okay. If there's an issue
with the alphabet in the doubling, I'll let you
know, but. I think I can keep up.

MR. CLARK: More or less you'll see on the
last page --

THE CLERK: Right.

MR. CLARK: -- on the backside I put

whatever it was.

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THE CLERK: Okay. Great.

MR. CLARK: And here's a list.

THE CLERK: Great. Thank you.

THE BAILIFF: Sir, use the -- don't do it.
Sir, use the button to release it or it will
come cut all at once.

MR. CLARK: Thank you.

THE COURT: Trick water jugs in this
courtroom. About once a week someone dumps
water all over.

THE BAILIFF: And it leaks all over the

MR, CLARK: Is this filtered water?

THE COURT: Yeah.

MR. CLARK: Are we allowed to use a
laptop?

THE COURT: Yes.

MR. CLARK: Is there any --

THE COURT: Just don't use the water jug
anywhere near the laptop.

MR. CLARK: Okay. Keep the water jug over
there.

Is there wifi access?

THE BAILIFF: Yes. It's called Unplugged

Guest, and you just have to hit Accept and log

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in occasionally. It should pop up
automatically.

THE COURT: Mr. Clark, do you have any
objection to the plaintiff's request for the
Court to take judicial notice of case number
2000 -- or, I'm sorry, 1999 (sic) -CA-5122-SC
and 2006-CA-8194-SC and 2007-CA-12386?

MR. CLARK: None whatsoever.

THE COURT: Okay. I will grant the motion
filed by the plaintiff and take judicial notice
of all three of those court cases.

So we can proceed to opening statements as
soon as you all are ready.

MR. WILLIAMS: I'm ready. Are you ready?

MR. CLARK: I'm ready.

OPENING STATEMENT

MR. WILLIAMS: Okay. May it please the
Court. Iris Beaugrand and Robert O'Toole dated
for an extended period of time. They bought
houses together. They lived together, also,
during that time and were in the process of
unraveling that relationship and legal title to
those assets.

Iris Beaugrand has filed a partition case

for the two properties that are the real

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properties that are in both of their names.
There's a counterclaim filed by Mr. O'Toole that
sounds in the nature of a declaratory decree
action seeking all sorts of relief, certainly
counter to my client's position. So that's
where we're at from a pleading standpoint.

Back in 2005 the parties started dating.
Miss Beaugrand had just recently divorced.
Mr. O'Toole was divorced at the time as well.
They started living together in 2005. In 2006
the first house that's at issue, the Bayshore --
we'll call it the Bayshore house, which is
jointly titled in their names. The Court will
see that it's titled with rights of survivorship
in both of their names. The Bayshore house was
initially only solely titled in Robert O'loole's
name. He experienced foreclosure issues with
that house in 2006. Then in 2007 -- while that
2006 case was ultimately dismissed, the lender
then refiled because financial difficulties were
occurring with Mr. O'Toole with making mortgage
payment on the Bayshore house. At the time the
parties were living together and they decided to
carry -- well, they wanted to get Mr. O'Toole

out of foreclosure. They used Iris Beaugrand's

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credit to get Mr. O'Toole out of foreclosure on
the Bayshore house and, as a result of using her
credit to finance the parties, Mr. O'Toole's way
out of foreclosure, she was required to be on
the title.

After that refinancing of the Bayshore
house the parties carried that house, and I
think the undisputed evidence will show -- and
when I say "undisputed evidence," Your Honor, I
mean evidence, testimonial evidence, I will get
from Mr. O'Toole, because we've taken his
deposition recently and I think he'll say the
same thing in court, is that after the Bayshore
house was out of foreclosure the parties lived
at Miss Beaugrand's house and they used the
Bayshore house as a rental house, and the rents
earned from the Bayshore house were used to pay
the mortgages on Bayshore. There's a SunTrust
mortgage and then there's a Regions mortgage,
and these mortgages still exist presently.

Now, the evidence will show that there
was -- at times there was excess rental
payments, and that excess moneys was used by the
couple to live on from the Bayshore house. Fast

forward. That occurred in 2007. In 2005 -- no.

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Excuse me. 2006. August 2006 the parties broke
up.

MR. CLARK: '16. 2016.

MR. WILLIAMS: I'm getting my numbers
off.

MR. CLARK: Yeah. I do the same thing.

MR. WILLIAMS: Yeah. The numbers, the
zeroes and the fives and the fifteens. My
apologies, Your Honor.

THE COURT: Okay. August 2016.

MR. WILLIAMS: Exactly, 2016. Thank you,
Counsel. The parties broke up.

Thereafter, Mr. O'Toole continued to
collect the rent on the Bayshore house. At
times the mortgages have been paid. At times
the mortgages have not been paid. ‘There's
delinquencies that have occurred on both
mortgages. Mr. O'Toole will tell us that he has
not paid on the second mortgage whatsoever since
they broke up.

My client is seeking partition of this
asset so that -- as a matter of right pursuant
to the statute it's a residential home. There
was no understanding or agreement that her

credit would be used indefinitely for these

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parties to own this joint asset.

A couple years prior to the parties
breaking up they decided to buy another rental
house which is called 808 lst Street, and that
is in Charlotte County. Now, that is not part
of the pleadings in this case, but there's a
stipulation of the parties, Your Honor, that
those issues pertaining to that house will be
tried in this forum just for economy's purposes.
Well, the 808 lst Street house -- we'll provide
you with the deed of that. The parties decided
to buy a rental. They entered into a purchase
contract jointly. The evidence will show that
ultimately when they went to go buy that 808
house, 808 lst Street house, that title had to
be taken in Mr. O'Toole's name initially and
then later on Miss Beaugrand could be added to
the title because that's the only way she would
receive the real estate commission for that
house.

THE COURT: Let me stop you for a second
here.

MR. WILLIAMS: Yes, sir -- yes, ma'am.

THE COURT: I'm just confused. I'm not

being persnickety about numbers. I just want to

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make sure that I understand. There's a
Count III in the counterclaims for an 880
property. Is that the same thing?

MR. CLARK: That's my mistake.

THE COURT: It should be 808?

MR. CLARK: I swear I'm not dyslexic, but
I transposed those digits.

THE COURT: Okay. But those are the same
properties?

MR. CLARK: Yeah. Through the magic of
computers.

THE COURT: Okay. That's fine. Thank
you.

All right. Sorry. Go ahead.

MR. WILLIAMS: Okay. Since they bought
the house they were anticipating using that
house as a rental. They have not used -- they
have not rented out the house. They're jointly
titled on the house and that's part of a
partition action. We need that -- we need that
divided. We need that title of ownership split
somehow, and we're seeking partition of that
house. What's noteworthy about the sales
purchase price proceeds of that 808 house is

it's an undisputed fact that $45,000 came by way

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of Iris Beaugrand's mother, Heidrun Riedner, and
Mr. O'Toole will admit to that. He signed an
agreement saying that he would pay that back.
The evidence will show that if the money was
just given to Iris Beaugrand, that her mother'd
never asked her to pay anything. So I don't
think there's any question that $45,000 of the
purchase price proceeds of the 808 house came
from Heidrun Riedner and we're asserting a claim
for that as a special equity.

Now, the other portion of the purchase
price proceeds -- I think there was $12,000 that
came from another loan from a third party, and
then the parties used -- which is kind of an
interesting twist, Your Honor. The parties used
$50,000 from a restitution judgment from a
renter of the Bayshore house, which is a
separate case other than this case, so that --
that joint moneys was received in the joint
account, and the 90-plus-thousand dollars was
used to buy the 808 house and carry that house
as a rental.

We have put together a trial brief. May I
approach, Your Honor?

THE COURT: Yes.

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MR. WILLIAMS: A trial memorandum of law

which I, of course, have given to opposing
counsel --

THE COURT: Thank you.

MR. WILLIAMS: -- regarding partition.
Partition as a matter of right. It's a pretty
old common law remedy. It's codified in our
statute Chapter 64 F.S. There are -- it's
generally the rule that partition is afforded to
anybody who holds an undivided interest in land.
There are exceptions, which I've identified in
my memo to the Court in the Condrey case, if
there's an agreement not to partition or if
there is some reason why the Court should
exercise its discretion to not grant partition.
And, interestingly, in the Condrey case the
Court was talking about exercise of that
discretion. Tt was kind of an odd case where
the Condreys had granted title ownership to
their son, Condrey, Jr., and then -- as an
estate planning vehicle and he ultimately
decided to partition. And the Supreme Court
said, well, wait a second. In that circumstance
we're not going to allow you to kick your

parents out of the house. But the court

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cautions everyone with the use -- with the trial
court with that discretion and actually says we
warned litigants that they should be wary of
relying on this expectation the Court will
exercise its -- this discretion, because the
discretion should only be exercised in extreme
cases where manifest injustice or fraud will
occur.

Certainly that's not the case here. The
reason why the parties became joint owners to
the Bayshore property was because of the
foreclosure proceedings of Mr. O'Toole, and they
jointly bought the 808 property with the
expectation of using that as a rental while they
were building their life together.

Without getting back to the claims in this
case, those are the two plaintiff's claims in
this case: The Bayshore house and the 808
property. We're seeking partition. We're
seeking the remedies by statute for those two
jointly-owned pieces of real property.

Now, in the counterclaims, because I only
get one opening, I think I need to address
what's being asserted about Miss Iris

Beaugrand's property, the Pinto property. Well,

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the undisputed evidence will show -- even though
there's a counterclaim pertaining to Miss
Beaugrand's Pinto property, the undisputed
evidence from Mr. O'Toole will be that "I don't
think I have any claims on the Pinto property;
no claims of ownership."

Certainly with that testimonial evidence
there was no agreement, there was no
understanding, there was no meetings of the
minds, there wasn't anything pertaining that
would afford him a claim to the Pinto property.
And that makes sense and the reason why is the
Pinto property was purchased by Iris Beaugrand.
All of the purchase moneys were paid by her for
that property. She's the only one whose credit
was used for the financing of that property. We
may hear argument that while the parties were
living together in the Pinto property
Mr. O'Toole paid all the bills. Well, an
interesting facet of this case, Your Honor, is
that both sides paid a lot of their bills
oftentimes in cash. I think that's a unique
factor of this case. But, again, as to the
Pinto property Mr. O'Toole will assert that he

does not think he has any claims as to the Pinto

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property.

There's another issue pertaining to what's
in the counterclaim with -- it's called the
Gallery unit. It was a piece of commercial
property that Klaus Gorke and Heidrun Riedner
had purchased. Now, Mr. O'Toole has asserted in
his counterclaim that, well, wait a second. I
had a deal with Klaus where I was going to be
the owner of the property and ultimately, you
know, I'm the owner of the property. Well, we
had talked to Mr. O'Toole at his deposition in
this case about that claim, and what the
evidence in this case will show is that:

One, the title ownership of the property
of the Gallery unit was always in Klaus Gorke
and Heidrun's name;

Two, that there are no documents
whatsoever which memorialize the position of
Mr. O'Toole, that he's the owner of that Gallery
unit property;

Three, that when asked about the details
he's talking about that would provide him with
ownership of the Gallery unit, he'll actually
say, "Well, when I talked to Klaus we really

didn't go into details about it."

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Okay. There are documents as to the
Gallery unit that show that, well, one, there's
a lease. I think both sides have entered or
identified for potential evidence in this case
is there was a lease between Mr. O'Toole's
business and Klaus Gorke pertaining to the
Gallery unit property. That lease was -- the
handwriting on that lease was Mr. O'Toole, and
that was the written document that exists
pertaining to the Gallery unit. There are also
a slew of e-mails between Klaus Gorke and
Mr. Robert O'Toole which talk about rental
payments owed under the lease, you've got to pay
the taxes, you know, as a typical commercial
lease would require the tenant to do so, you've
got to pay the Association dues. I! don't see
any e-mails that say, wait a second, you're
really the owner of this unit. The Gallery unit
property has been sold, but nonetheless there's
a counterclaim as to the Gallery unit.
Ultimately a Notice of Bviction was sent or
charged against Mr. O'Toole, and he moved out of
the property. Mr. O'Toole will assert certainly
in this case that he does not think that Iris

Beaugrand owes him anything as a result of his

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agreement with -- his oral agreement with Klaus
Gorke.

Now, the remaining issue that's sort of
out there within the counterclaim is the
personal property of the parties. My client's
going to testify to the fact that Mr. O'Toole
had a bunch of cars on her property at the Pinto
place, and all his personal property was put
into those cars and those cars disappeared.

Mr. O'Toole has stated at his deposition, well,
he's missing artwork and some paperwork. He's
asserted that he doesn't make any claim on a
dog, and that leaves us with the one issue of
personal property. That apparently while the
parties were living together, Iris Beaugrand
bought a horse for $3,000 that was paid cash.
Now, there's documents to that effect that the
receipt for the purchase was in Iris Beaugrand's
name. The registration for the horse was in
Iris Beaugrand's name. The further evidence
will show that Tris Beaugrand has solely cared
for the horse since the parties broke up, solely
paid for the feed bills, vet bills, furrier
bills, these sorts of things. It's a $3,000

horse four or five years ago. You know, I don't

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know how much value there would be to litigating
that issue, but we're taking the position in
this case that it's Iris's horse, Iris
Beaugrand's horse and, to the extent that claims
are asserted against the horse, that's just
being vindictive in nature from her former
boyfriend.

At the end of the day, Your Honor, we're
requesting partition pursuant to Chapter 64 of
the two houses that are jointly titled in both
of the parties' names. As to the Bayshore
house, pursuant to the case law we're requesting
that certainly the partition recognizes and pays
the mortgages on Bayshore. My client does not
want to be in a situation of owning property
with her ex-boyfriend for a variety of reasons.

And that's why we're here today. Thank
you.

THE COURT: Thank you. Mr. Clark?

OPENING STATEMENT

MR. CLARK: Good morning, Your Honor.
Bret Clark on behalf of Robert O'Toole.

There's a lot of what Counsel has said
that I'm going to have to agree with. The facts

are -- there's a few details on the facts that

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may be missing, and certainly the legal
conclusions that are being drawn from the other
side we don't agree with, but let me give you my
summary of what happened here.

You have a couple that had a committed
relationship for 12 years. They were unmarried.
They did not hold themselves out as a married
couple. Any rules that you see in the case law
that refers to that is completely applicable,
and there's one case in particular I'm going to
talk about later. The couple did not date. I
think when Counsel says they were dating, he
means in a generic sense that they're together.
They're an item, so to speak. In reality, at
the time that Iris Beaugrand moved into Bob's
house on Bayshore with her four children they
were not dating and there was no relationship
there, romantic or otherwise. He was helping
her out of a difficult situation. I believe I'm
correct, according to my trusty time line that I
have here, that they actually -- she moved in in
the summer of 2004 is when she moved into
Bayshore. I'm pretty sure I've got that right.

MS. BEAUGRAND: No. Absolutely not.

MR. CLARK: Okay, okay. We'll testify

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later. But that probably doesn't mean that much
other than to say that the relationship was 11
years instead of 12 years.

Bob at the time had a mortgage on
Bayshore. It had a balance of about $225,000 on
the mortgage. When the Beaugrand family moved
into his house there was a consequent economic
impact on Mr. O'Toole in that Iris Beaugrand was
not able to fund her living situation to the
extent that maybe she should have, and so there
was some financial pressure placed on Bob. And
then in 2006 he started to fall behind on his --
meeting his obligations on the mortgage, and
then the bank -- Wells Fargo, I believe it
was -- filed a foreclosure case against him.

This is in the year 2006. I think all of
us can take judicial or other notice of what was
going on in the market and what was happening in
the court system with foreclosures. There was a
flood cof foreclosure cases. So it wasn't that
unusual that a foreclosure case would have been
filed. That doesn't mean you're going to lose
the house. In fact, what happened in the
records will show that Bob was able to reinstate

the mortgage in the summer of 2006. That's

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reflected in the court records. We do not have
access to certain materlals such as the closing
statements and closing package. When you do a
refi, you know, closing package, there are
certain things in there. We do not have access
to that.

When Bob left -- eventually they
separated -- his documents were at the house and
we are having some difficulty being able to
obtain them. Be that as it may, you can tell
from the court records what happened here. That
is, after the loan was reinstated in the summer
of 2006 -- excuse me. 2007. Summer of 2007
it was reinstated. The foreclosure case was
filed in 2006. There was -- the property was
refinanced, and so at the time that they were in
the process of refinancing Bayshore there was
actually no foreclosure case pending at the
time.

It is true that Iris Beaugrand offered to
participate in the refinancing of the house, the
principal reason being that she did have a
better credit score at the time, although she
didn't have income to support the mortgage.

Back then there were some mortgages and loans

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that were given that maybe shouldn't have been.
The term "liar loans" comes up, not to disparage
Iris, but as to say a lot of people were doing
that, and so she made the suggestion and they
agreed that they would refinance the Bayshore
house to lower the monthly payment, and that
they would then move into the house on Pinto.
It's really a ranch. It's a horse ranch
which at this point in time, the middle of '07,
was still in the process of being constructed.
Iris had borrowed $400,000 to construct the
ranch on Pinto and it was still in process at
the time that they made this agreement whereby
they would do a refi on Bayshore, rent it, and
move into Pinto, and any money over the carrying
charges they would use to help fund their life
together, and that is what they did. The
agreement between them was that they would
equally share the costs of living together,
including the payments on the Pinto house. So
you have a $400,000 mortgage over there, and
they needed to fund monthly payments on that,
and they had the Bayshore house, Bob's house,
and the rental income was supposed to cover

that, the cost of that.

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After they refinanced the property on
Bayshore, Iris then took out a $30,000 line of
credit on Bayshore for her use and she drew on
that line and spent that money on things that
right now at this moment we can't account for.
All right? So not to seem like I'm making a
pun, but you can't partition the case into a
neat thing over here where you're talking about
Bayshore because you have these other things
going on and an intermingling of the economics
of this couple.

As I said, the arrangement for their
living at Pinto was that each would equally bear
the costs of that, including, like I said, the
mortgage payments. However, as things developed
Iris was not able to fund her half of this
agreement that they had and, as time went on
for, I guess, 11 years or what have you, it
turned out that Bob O'Toole was making the
payments. He was paying virtually for
everything out of his funds. That is just part
of the economics of the situation. She didn't
have the money. She had four kids who were
living there together. She works as a real

estate agent part-time making, by her testimony,

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31
about $20,000 a year. You add up, the mortgage

payments on Pinto by itself exceed that yearly.

Meanwhile she has a horse ranch there.
She has four kids and she's having to use her
money for other things, and so during the course
of I guess it's 11 years you have a large amount
of money that Bob expended and that he was only
supposed to pay for half, and ultimately what's
going to happen in this case, from our point of
view, is that the Court is being called upon to
exercise equitable jurisdiction in the case.
When Counsel uses the word "matter of right,"
that's not quite accurate. This is a court of
equity. The Court does what is fair. It's not
a question of as a matter of right they can
demand that Bob sell his house to pay -- to get
her more money. It's a question of what's fair.
That's how we presented the counterclaim,

After they moved into Pinto, Bob is
holding up this what I would call credit due
to him for all the money that he spent. Tf you
count one-half of the payments, because he was
obligated to pay one-half of the expenses at
Pinto, if you just take one-half of the payments

that he made for Iris, that is around $100,000.

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That's a conservative estimate. From his point
of view he would say, all right, I have $100,000
extra in this venture that we're engaged in.

At the time of the refinance of the
Bayshore house Counsel is correct that in order
to get a note and mortgage -- note secured
by the mortgage Iris's name had to be placed on
title. That doesn't mean that she bought it.
She didn't pay anything to gain any interest in
that house -- zero -- at the time of the
refinance. All she was doing was signing the
loan papers and using her credit to help get a
lower rate on the loan.

The property was retitled in both their
names with rights of survivorship, which
indicates there was some effort here to do a
crude form of estate planning, and that was part
of what was Bob's understanding of why they were
doing this, is if something happened to him,
Iris would take care that the property was given
to his family.

So then what happened later on is there
was a person by the name of Jesse Inlow. It
gets complicated. Inlow was a tenant at the

Bayshore house and it turned out that he became

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upset with the fact that Bob is of Asian -- part
Asian descent and that upset him and so he
destroyed the premises, came back and destroyed
the premises and painted swastikas on the walls
and just did a lot of damage, physical damage
and emotional damage. And so as a result he was
arrested and charged with the various crimes
related to that and, meanwhile, they had -- the
place was trashed and Bob, of course, had to
take responsibility for doing repairs to the
premises and, of course, they couldn't rent it.
So they were in a bit of a -- a bit of trouble
there with that.

Eventually, as part of the plea agreement,
there was restitution ordered and it was paid,
and so there needs to be an accounting for that
at some point. I'm not able to do that through
today's trial. In fact, we're not going to be
able to do an accounting for all the dollars
that are involved here. So you're off the hook,
Judge. What we're going to ask for is that an
accounting be had.

THE COURT: Was that the $50,000 that
Mr. Williams referred to, or is that something

different?

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MR. CLARK: That's something else.

THE COURT: Okay. Because he used the
word "restitution" in referring to that as well.
MR. CLARK: Yeah, well, I think the
$50,000 was referring to another thing that I'm

going to get to in a second.

THE COURT: Okay.

MR. CLARK: There was I think about
$135,000 that was paid in restitution. However
some of that had to go to pay lawyer's fees and
some had to be paid for the insurance because
there was an insurance claim and reimburse the
insurance, and the rest was to reimburse Bob for
his expenses in doing the repairs. But by that
time there was a pile of money and they
deposited it into a specific account. I believe
the amount was around $62,000, but the witnesses
will correct me on the exact figures.

The bringing up the Inlow case is
important. for a variety of reasons, one being
that the costs -- the legal costs in pursuing
the case, Iris did not contribute anything
towards that. Subsequent to the criminal case
being filed the civil case was filed, and Bob

O'Toole has been funding that to the exclusion

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of Iris Beaugrand, but she is listed as a
plaintiff and she would, one would think, be
obligated to share in the cost of that at some
point.

Then when the criminal case was
resolved -- this was in 2014, the summer of
2014, and both ~- the couple decided to make a
short-sale offer on the property at 808. That
was in the summer of 2014. I know that because
I was provided some documents showing an offer
was made that Miss Beaugrand was able to produce
last Thursday. She makes an offer, a short
sale, summer of 2014, that offer goes nowhere.
Eventually a year later in July of 2015 they
were able to get an offer accepted by the
sellers and it's a short sale.

The Court might be familiar with those.
What happens is the seller's lender has to
approve of the sale, which they did except for
one important point which was that Iris
Beaugrand, who's a real estate agent, was not
allowed to receive any compensation in the
purchase of this property. At that point she
had a choice. She could have said, okay, I'll

back off and I won't take a commission, but she

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didn't do that. Instead, she ruled herself as
the buyer of the property, and that was required
by the lender so she could not participate --
she couldn't buy the house. She couldn't buy
this house. She was told by someone that, well
you can't buy it, but if you wait 90 days after
the closing, then you can do something. And so
the sale proceeded. Iris's mom put up $45,000
to -- and the sale -- I think the sale was
ninety. It was ninety. And so she's putting up
half. Her mom put up half; Bob put up the other
half to buy it. Iris did not contribute any
money of her own in the transaction because she
didn't have any. But the arrangement wasn't
that the money from her mother was to fund her
share. The way that they did it on their own
was to make it a loan from her mom to Bob
O'Toole. So they treated it as a loan from Bob
to her mother (sic), $45,000. I think there's
some other money that was involved and, like I
said, there should be an accounting.

But, be that as it may, the property was
acquired by Mr. O'Toole. He funded the repairs
to it. He paid all the carrying charges out of

his money. His money. Iris did not contribute

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towards that. Now she -- I understand that she
is saying, well, I did buy some paint or do some
other things, maybe paid the electric bill, some
of it minor things, and she should get credit
for that if she contributed.

The 808 house, partition of it has been
requested by Iris in the Charlotte County case.
It's one of our exhibits that are marked. They
split their cause of action and did a partition
there and here because that property is in
Charlotte County, so they are -- they don't have
a count for partition of that in this case, and
in our counterclaim we are not -- obviously
we're not seeking to force us to sell our
property, so -- but, as Counsel alluded to, this
Court has been presented with a counterclaim
that involves that property and the Court can
fashion that corporate relief that is suitable
in the circumstances in this particular case
because Iris was not allowed to take title to
the property. The deed that Bob signed, a
handwritten goofy-looking quitclaim deed that
gave the property to him and her as joint
tenants, was filed within about 30 days. So

even if one accepted the premise that Iris was

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able to take title if she waited 90 days, she
didn't wait 90 days, so that deed is invalid.
Our position is that the deed is invalid. We're
asking that it be set aside. When that happens,
if you read the cases on partition, the -- you
can't get partition if you're not on the title
to a property

THE COURT: All right. Let me ask you a
clarifying question. So there is an action in
Charlotte County seeking -- by Miss Beaugrand
seeking partition, correct, in a separate
lawsuit, but you're saying that you're all
agreeing that 1 can decide that issue today here
in this trial? Or that the decisions I make
will just impact that lawsuit?

MR. WILLIAMS: It's my understanding we
have a stipulation that I'll provide Your Honor
that we're going to decide those partition
issues here for economy's purposes

THE COURT: That's what I thought I heard
you say. So is that what you're agreeing to?

MR. CLARK: Sort of. I don't -- because
my position is they're not entitled to
partition.

THE COURT: Right.

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MR. CLARK: Certainly not of that
property.

THE COURT: But you agree to fight that
battle in this courtroom during this trial?

MR. CLARK: I think during this trial the
Court, because of our counterclaim involving
that property, will make findings and make a
judgment and make declaratory relief that will
impact. So I guess it's the second choice that
you gave, that it's going to impact that case,
because it's been adjudicated with respect to
rights of the parties in that property and all
the others, and everything else between them is
going to be resolved in this court.

THE COURT: Okay. Well, it sounds like
you all may need to speak outside. I don't want
to waste court time doing that during trial
time, but maybe on a break you all can clarify
your agreement. But I will listen carefully
about the 808 property with that in mind.

MR. CLARK: All T'm saying is that
technically before this court partition hasn't
been requested by either party in this case, but
it doesn't -- from our point of view equity

doesn't matter that much. In fact, this issue

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of who has -- who owns this and who owns that
isn't really even relevant because you have a
relationship between the parties and there needs
to be a settlement of accounts as between them
and who owes who what. So when Counsel says
that Bob says, well, I don't own Pinto, that's
true. He doesn't own it, whether he's on the
title or not, and he's not claiming that he
should be put on the title of that house. His
position is in equity what accounts for the
economics of the situation? How much did Bob
pay and how much is he due? And I think looking
at it the appropriate way from lris's point of
view she should be saying the same thing. I
want to do what's fair here, Your Honor. We had
an agreement and he owes me money because he
didn't live up to his side of the agreement.
But she's not taking that position. She's
taking a narrow position of partition, and the
law requires you to partition it, and people
shouldn't worry about you doing something fair
and rely on you exercising your discretion and
doing what's fair and what is not.

What the Court can do is enter a

declaratory judgment stating that Iris put in X

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41
amount of money into 808, that the money was
borrowed from her mom, so she gets a credit for
that, and -- but it's not a good idea and it's
certainly not fair for the Court to force people
to sell property like this because it's not in
the best -- it may not be in the best economic
interests for them. Certainly it's not for Bob
because he's the one -- he's the one that has
invested in those properties, and forcing him to
sell it so that he can give more money to Iris
is just not fair. It's not a fair thing to do.

All right. So the next thing is the
Gallery situation. You have a kind of
arrangement. You have what I'm going to refer
to as sort of a joint venture between the two
sides. There are a lot of things -- there's a
lot of moving parts here. One of them was the
shop where Bob moved his computer repair
business into the Gallery Plaza down in
Englewood. What happened was he was leaving
where he was situated at the time. He found an
opportunity and he went to Iris's stepfather
Klaus and said would you buy this thing for
$50,000? And if you fund the purchase, I'll

move my business in there and I'll make monthly

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payments at 10 percent on the $50,000 to you, 10
percent, and I will pay the taxes and the
insurance, which is through common fees, which
sounds guite a bit like a mortgage. That is, in
effect, what it was, but because they were a
family -- you know, we'll hear Bob mention
seeing the paperwork -- that he thought this was
a family. He regarded them as his in-laws. He
was in love with Iris and he was very trusting.
He did not do his paperwork the way he should
have. And so what happened was he moved into
the unit. Title to the unit was put into Iris's
mom and stepfather's name, and Bob proceeded to
pay, pay, pay, pay like he always does.

There was a piece of paper, only one piece
of paper, that gives clues as to the
relationship. Counsel refers to it as a lease.
You'll notice when it's introduced into evidence
it's not a lease. It says right on it, "This is
not a lease."

So there was no written lease between
them. They did refer to the payments they made
as rent. And so that proceeded on to where he
continued to pay on that and then, when the

relationship failed in the summer of 2016, Iris,

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having a power of attorney on behalf of Klaus,
ordered him to leave. You have to leave the
premises and evicted him and so he left. Then
they proceeded to demand that he still pay under
this quasi-mortgage, but naturally he declined
to do that, and then they sold the house -- or
they sold the unit out from under him for
$75,000. We're not talking about a lot of money
here, but they're asking him to give them more
money, yet they didn't abide by this arrangement
regarding that property.

Finally, in the summer of -- in August of
2016 they -- Bob and Iris were at the Pinto
place, the Pinto ranch, and they had a
conversation. I don't want to characterize it
too much, but | think they both would agree at
that point they decided that this was not
working out and that Bob needed to leave, and so
he did. He left. He had been living there
for -- since end of '07, so that's quite -- the
end of '07, so that's quite a bit of time and
there's a lot of stuff there. A lot of his
stuff is -- it belongs to him. Some of it they
own jointly. They accumulated stuff.

And then there's the animals they have.

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They had a horse in particular that they both --
Bob paid for it as, you know, he normally does,
and Iris says but the bill of sale is in my
name, it's my horse, which, again, you know,
we're not going to partition a horse. It's not
a matter of who owns it. It's a matter of
settling accounts. So if Bob paid for it, he's
due a credit for the money that he put up to buy
the horse. The horse is going to stay where it
is. It's not going to go anywhere. But we need
to settle accounts here. And if Iris is saying,
you know, you can't have my horse, I say, okay,
but you're going to have to give me a credit for
the amount of money that I paid for the horse.
Another -- one last item and then -- I'm
talking a lot more than I was anticipating.
When Bob left the house in August he -- amongst
the things that he left there was a filing
cabinet full of papers and documents and things.
We have requested that that and the other items
at the house be returned, and that has not
happened. Iris says oh, no, no, no, I put it in
a car, or she can explain what it is, but the
fact is we are short on some documents and we're

having difficulty being able to present all of

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Case Info

Judge

PORTER, LISA S Track Judge’s New Case

Case No.

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Document Filed Date

June 19, 2019

Case Filing Date

May 11, 101

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Party Notice: BEAUGRAND, IRIS vs. O'TOOLE, ROBERT

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