Resolution 062-2021 RESOLUTION NO. 062 - 2021
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
APPROVING THE SETTLEMENT AND RELEASE
AGREEMENT ON TRIAL-LEVEL ATTORNEYS FEES' AND
COSTS WITH DONALD DAVIS AND SMITH HAWKS PL IN
THOMAS COLLINS ET. AL AND DONALD DAVIS V.
MONROE COUNTY AND STATE OF FLORIDA AND
AUTHORIZING PAYMENT OF SUCH FEES AND COSTS.
WHEREAS, on October 14, 2011, the Circuit Court entered its Final Judgment Denying and
Granting Liability in Thomas F. Collins et. al. and Donald Davis v. Monroe County and State of
Florida in Circuit Court Case NO. 04-CA-379-M in which the County and State prevailed as to
all plaintiffs except for Donald Davis; and
WHEREAS, on February 15, 2017, Circuit Judge Mark Jones entered a Final Judgment for
Plaintiff Donald Davis (hereinafter "Final Judgment") in the litigation reaffirming the court's
finding of inverse condemnation liability, finding that Monroe County and State of Florida were
jointly and severally liable, providing for compensation, and retaining jurisdiction to determine
any entitlement to attorneys' fees and costs; and
WHEREAS, on February 28, 2017, Davis filed in the trial court his Motion for Attorneys' Fees
and Costs that remains pending; and
WHEREAS, on November 22, 2019, Monroe County individually paid into the court registry
$375,714.06, which was the total amount of Final Judgment as to liability and just compensation,
exclusive of attorney's fees and costs, together with statutory interest; and
WHEREAS, on November 22, 2019, the Clerk of County Court issued a Satisfaction of Judgment;
and
WHEREAS, on May 20, 2020, the Board of County Commissioners of Monroe County, Florida
unanimously passed Resolution No. 147-2020, authorizing payment of attorney's fees and costs at
the appellate level as to Plaintiff Donald Davis to Smith Hawks, P.L. and those fees and costs were
subsequently paid; and
WHEREAS, on August 19, 2020,the Board of County Commissioners of Monroe County,Florida
passed Resolution No. 227-2020, approving a settlement and release agreement between the
County and State that resolved all claims between the parties in the Davis litigation, exclusive of
attorneys' fees and costs, and the State subsequently reimbursed the County $190,678.53 for its
50% of the Final Judgment that the County individually paid; and
WHEREAS, the attached Settlement and Release Agreement provides for the settlement of the
remaining issue of Davis' Motion for Attorneys' Fees and Costs at the trial level; and
WHEREAS, under the Settlement and Release Agreement, the County is individually paying
Davis' claim to trial level attorneys' fees and costs in the amount of $109,382.91 with the
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expectation that the State will directly reimburse the County for the State's 50% share of this
amount; and
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
I. The attached Settlement and Release Agreement attached hereto and incorporated herein
as Exhibit 1 to this resolution is hereby approved, adopted, and ratified.
2. The Monroe County Clerk is authorized to pay Smith Hawks, P.L. $109,382.91.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting held on the 17'h day of February 2021.
Mayor Michelle Coldiron Yes
Mayor Pro Tem David Rice Yes
Commissioner Craig Cates Yes
Commissioner Eddie Martinez Yes
Commissioner Mike Forster Ycs
BOARD OF COUNTY COMMISSIONERS
,y, 5;(001 � OF MONROE COUN a t DA
cil“-•
BY:
3 Mayor Michelle Coldiron
• TEST: KEVIN MADOK, CLERK
By: �1"-In.._ejLIL Jv
As Deputy Clerk
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MONROE COUNTY ATTORNEY ='r W
APPROVED AS TO FORM. - ro
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DEREK OWARD v m
ASSISTANT OUNTY ATTORNEY cr'
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IN THE CIRCUIT COURT OF THE SIXTEEN JUDICIAL CIRCUIT IN
AND FOR MONROE COUNTY, FLORIDA
THOMAS F. COLLINS , et al., and
DONALD DAVIS,
Plaintiffs,
VS. CASE NO. CA-M-04-379
MONROE COUNTY, a Political Subdivision
of the State of Florida,
and
STATE OF FLORIDA
Defendants.
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreement") is made and entered into by
Donald Davis ("Davis") and Smith Hawks PL (collectively "Releasors"), and Monroe County,
Florida also referred to herein as "Releasee"). The purpose of this Agreement is to settle any and
all claims for an award of attorneys' fees and costs against Monroe County and the State of
Florida in connection with the above-captioned litigation (the "Davis Litigation"), including, but
not limited to, any claim under or related to Davis' Motion for Attorney Fees and Costs (dated
February 28, 2017) or the Stipulation of Settlement(dated August 29, 2016).
WHEREAS, the above-captioned suit was filed in 2004 by eleven (11) separate plaintiffs
against Monroe County, alleging inverse condemnation of their properties through the imposition
of the County's Rate-of-Growth Ordinance (ROGO), and plaintiffs added the State of Florida as
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a defendant in their Second Amendment by Interlineation to First Amended Complaint in 2006;
and
WHEREAS, all the plaintiffs, including Davis, were represented at the trial level by
Andrew M. Tobin, Esq. (hereinafter "Tobin") and James S. Mattson, Esq. (hereinafter
"Mattson"); and
WHEREAS, Davis entered into a contingency fee agreement with Tobin and Mattson on
October 6, 2004, that provided, inter alia, as follows:
If CLIENT obtains a final judgment on compensation, or accepts a
monetary settlement from a condemning authority or a third party,
ATTORNEYS' compensation shall be based on the difference
between the judgment or settlement amount (not including the
amounts designated as "attorneys' fees" or "costs"), and the last
bona-fide, written offer to purchase the Subject Property by the
condemning authority, and received by CLIENT before the date
CLIENT signed this fee agreement. This difference is defined as
CLIENT's "Benefit." The last bona-fed written offer from a
condemning authority was $35,000 . . .
ATTORNEYS shall be entitled to compensation equal to 33% of
CLIENT's benefit up to $250,000, and 25% of any portion of the
benefit between $250,000 and $1 million, and 20% of any portion
of the benefit exceeding $1 million. In cases where the Court
awards attorneys' fees as part of a final judgment using statutory
factors in § 73.092, Fla. Stat., CLIENT agrees to pay
ATTORNEYS the greater of the Court-awarded fees or the
compensation set forth in the preceding sentence.
WHEREAS, following a liability trial in April 2011, the trial court entered its Final
Judgment Denying and Granting Liability on October 14, 2011, holding that Davis was the only
landowner to establish that a regulatory taking of his property occurred; and
WHEREAS, on August 4, 2016, the trial court directed the parties to mediation, and on
August 29, 2016, the parties entered into the Stipulation of Settlement agreeing (a) that for
purposes of calculating damages, the fair market value of the subject property on July 17, 2002
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(the date of taking), was one hundred seventy-five thousand dollars ($175,000.00) and (b)
"Plaintiff Davis is entitled to recovery attorneys' fees and costs incurred, which the court shall
determine in a separate hearing if Plaintiff Donald Davis is ultimately the prevailing part"; and
WHEREAS, on February 15, 2017, Circuit Judge Mark Jones entered a Final Judgment for
Davis (hereinafter "Davis Final Judgment") reaffirming the court's finding of inverse
condemnation liability, providing for compensation, and "retaining jurisdiction to determine any
entitlement to costs and attorneys' fees"; and
WHEREAS, on February 28, 2017, Davis filed his Motion for Attorneys' Fees and Costs,
seeking "entry of an order finding that Plaintiff is entitled to an award of attorneys' fees and
costs, and reserving jurisdiction to determine the amount of attorneys' fees and costs at a
separate hearing"; and
WHEREAS, on March 7, 2017, Monroe County and the State of Florida appealed the
Davis Final Judgment to the Third District of Court of Appeal; and
WHEREAS, on August 25, 2017, Tobin and Mattson filed a Notice of Attorneys'
Charging Lien and subsequently amended that notice on October 20, 2020; and
WHEREAS, Davis discharged Tobin and Mattson for good cause shortly after the appeal
of the Davis Final Judgment was filed, and Tobin filed a Motion to Withdraw As Attorney Of
Record on October 20, 2017, that was granted by the Third District; and
WHEREAS, on October 17, 2017, Tobin and Mattson filed a "Motion to Confirm
Attorneys' Charging Lien and To Require Proceeds To Be Held In Escrow"; and
WHEREAS, Davis was represented at the appellate level by Smith Hawks, P.L. and
incurred $68,627.11 in attorneys' fees and costs; and
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WHEREAS, on October 2, 2019, the Third District per curiam affirmed the Davis Final
Judgment and conditionally granted Davis' motion for appellate attorneys' fees; and
WHEREAS, on November 22, 2019, Monroe County individually paid into the court
registry $375,714.06, which was the total amount of the Final Judgment as to liability and just
compensation, exclusive of attorneys' fees and costs, together with statutory interest, and an
additional $5,643.00 was paid by the County to cover the Court Registry Services Charges; and
WHEREAS, on November 22, 2019, the Clerk of County Court issued a Satisfaction of
Judgment; and
WHEREAS, in May 2019, Monroe County, Davis, and Smith Hawks P.L. entered into a
Settlement and Release Agreement to settle a claim against Monroe County for appellate
attorneys' fees and costs incurred by Davis based on Smith Hawks P.L.'s representation of him
in the above-captioned matter; and
WHEREAS, Smith Hawks P.L. agreed to a reduction in fees and costs bringing the total
amount to $66,951.11; and
WHEREAS, it was the intention of the parties to the May 2019 Settlement and Release
Agreement that "Monroe County will separately pay 50% of Smith Hawks' appellate fees in the
amount of$33,475.56, and the Releasors will seek payment of the remaining 50% from the State
of Florida"; and
WHEREAS, the parties to the May 2019 Settlement and Release Agreement stipulated (1)
"Monroe County will individually pay Smith Hawks, P.L., $33,475.56, which is 50% of the
firm's total reduced fees and costs related to the firm's representation of Donald Davis in the
above-captioned matter" and (2) "[u]pon payment of$33,475.56 by Monroe County as set forth
above, Donald Davis and Smith Hawks, P.L. (individually and collectively) release Monroe
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County from any past, present or future claims or entitlements the Releasors may have for
attorneys' fees or costs related to the firm's representation of Donald Davis in the above-
captioned matter"; and
WHEREAS, on May 20, 2020, the Board of County Commissioners of Monroe County,
Florida unanimously passed Resolution No. 147-2020, authorizing payment of attorneys' fees
and costs pursuant to the May 2019 Settlement and Release Agreement, and the $33,475.56
amount was subsequently paid by the County; and
WHEREAS, the State of Florida still owes its 50% share of Davis' appellate fees and
costs; and
WHEREAS, based on the contingency fee agreement with Mattson and Tobin, and
assuming arguendo that the agreement remains valid, Davis asserts that he incurred $105,178.50
in attorneys' fees in the litigation of the above-captioned matter at the trial level; and
WHEREAS, Monroe County does not admit that Davis actually incurred attorneys' fees
and costs under his contingency fee agreement with Tobin and Mattson but seek to avoid the
time and expense in litigating the issue; and
WHEREAS, the contingency fee agreement with Mattson and Tobin effectively
incorporated the payment schedule set forth in § 73.092(1)(c), Fla. Stat.; and
WHEREAS, § 73.092(2) provides factors that a court should consider "[i]n assessing
attorney's fees incurred in defeating an order of taking, or for apportionment, or other
supplemental proceedings," and the parties agree that the those factors are inapplicable to this
inverse condemnation case where Davis obtained a monetary benefit; and
WHEREAS, Tobin and Mattson did not through their efforts obtain for Davis any
nonmonetary benefits; and
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WHEREAS, Davis incurred $4,204.41 in costs in the litigation of the above-captioned
matter at the trial level, which includes all incurred costs and obligations related to Davis'
representation by Tobin and Mattson; and
WHEREAS, the Davis Final Judgment found Monroe County and the State jointly and
severally liable, and the parties recognize that the State would be liable to pay a share of any
award of attorneys' fees and costs; and
WHEREAS, in the interest of efficiency and more swiftly concluding the above-captioned
litigation, Monroe County is agreeing to pay Davis the entire total of attorneys' fees and costs in
the amount of$109,382.91 and to separately seek reimbursement directly from the State for the
State's share ($54,691.46); and
WHEREAS, Releasors and Monroe County acknowledge that Tobin and Mattson have
asserted a demand for attorneys' fees in an amount greater than $105,178.50 and a demand for
costs in an amount greater than $4,204.41; and
WHEREAS, Releasors and Monroe County agree that the fee and costs amounts demanded
by Tobin and Mattson are unsupported and unreasonable, and that the conduct of Tobin
unreasonably prolonged the resolution of the fees and costs issue; and
WHEREAS, on November 4, 2020, the circuit court entered an Order that (a) deferred
ruling on Davis' Motion to Release Charging Lien because liability for attorneys' fees has not
yet been determined in an order by the court and (b) states Tobin and Mattson's charging lien
shall dissolve automatically without further court action on March 1, 2021, unless liability for
attorneys' fees is determined by agreement or through an evidentiary hearing on or before
February 28, 2021; and
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WHEREAS, on January 26, 2021, the circuit court entered an Amended Order, which
amended the November 4, 2020's Order's provision regarding dissolution of the charging lien as
follows: "James S. Mattson, Esq. and Andrew Tobin, Esq.'s Charging Lien filed on August 25,
2017, shall be dissolved automatically without further Court action unless liability for attorney's
fees is determined by agreement or through an evidentiary hearing on or before May 4, 2021;"
and
WHEREAS, Releasors and Monroe County acknowledge that on November 25, 2020,
Tobin and Mattson filed a Petition for Writ of Certiorari in the Third District directed to the
November 4, 2020 Order and agree that the pendency of that petition and its outcome do not
impact or alter the terms of this Agreement; and
WHEREAS, on January 5, 2021, Davis, Mattson and Tobin entered into an Escrow
Agreement providing for the release of funds paid into the court registry, stating in pertinent part:
(a) "The Parties desire to release One Hundred and Five Thousand and One Hundred and
Seventy-eight Dollars and fifty cents ($105,178.50) (the "Escrow Funds") from the court registry
to be held in escrow by Escrow Agent until the matter of prevailing party attorney's fees is
resolved in Circuit Court Case No. CA-M-04-379 (the "Resolution") and (b) "The Parties desire
to release the sum of $270,535.56 (the balance of the funds) from the court registry to the
Plaintiff'; and
WHEREAS, on January 11, 2021, Tobin and Mattson filed their Attorneys' Motion to
Release Funds seeking an Order Directing the Clerk to Disburse Funds, in accordance with the
Escrow Agreement; and
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WHEREAS, Releasors and Monroe County agree that the pendency and outcome of the
Motion to Release Funds, as well as the Escrow Agreement and any release of funds from the
court registry, do no impact or alter the terms of this Agreement; and
WHEREAS, Releasors agree to release Monroe County and the State of Florida from any
past, present, or future claims or entitlements to attorneys' fees or costs in the above-captioned
matter by Releasors, Tobin, or Mattson; and
WHEREAS, Releasors agree to indemnify Monroe County and the State of Florida as to
any claims against them for attorneys' fees or costs in connection with the above-captioned
matter asserted by Tobin, Mattson, or any other attorney; and
NOW THEREFORE, in consideration of the foregoing premises, which constitute
material provisions of this Agreement and not mere recitals, and of mutual agreements,
covenants, and promises as may be set forth herein, and for other good, adequate, and sufficient
consideration described herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree and stipulate to settle as follows:
PAYMENT BY RELEASEES
All parties agree that the total amount of trial level attorneys' fees and costs due to Davis
in the above-captioned matter is $109,382.91.
Upon Monroe County's payment of$109.382.91 as set forth above, Releasors will release
the County and the State of Florida from any past, present, or future claims or entitlements they
may have for trial-level attorneys' fees or costs, including, but not limited to, those related to
Tobin and Mattson's representation of Davis in the above-captioned matter. Davis further agrees
to indemnify Monroe County and the State of Florida against any claims for attorneys' fees or
costs that Tobin or Mattson may seek directly from Monroe County or the State of Florida.
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RELEASE BY RELEASORS
Once the settlement amount as enumerated above is paid to Releasors, Releasors will
fully, forever, voluntarily, knowingly, and upon advice of counsel, expressly release, remise,
acquit, satisfy and discharge Releasees and all of their attorneys, agents, servants, employees,
associates, administrators, successors, predecessors, officers, directors, representatives, insurers
and assigns from any and all claims, crossclaims and third-party claims, and any demands,
damages, actions, causes of action, claims, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, executions, representations and restitutions,
whatsoever in law or in equity, concerning the Davis Litigation, which Releasors ever had, have,
or will have, or which they or their successors, administrators and assigns hereinafter can, shall,
or may have, for or by reason of any matter, cause, act, transaction or thing whatsoever, related
thereto, connected with, arising out of, referring to, or in any manner relevant to or which has
been or could have been asserted by any of the parties hereto as a result of the claims and/or
series of claims which gave rise to these disputes, relationships, and controversies, including the
Davis Litigation, and any and all contracts, whether oral or written, between the parties hereto,
relating to said matters, and in particular on account of all damages, economic or otherwise,
known or unknown, together with any accrued statutory interest, which resulted or may in the
future result, which are in any way connected with, related to, or arise from, the liability and
damages claim of Releasors.
UNKOWN CLAIMS BY RELEASOR
Releasors acknowledge that they execute this Agreement after consultation with, and
upon the advice of, counsel. Releasors acknowledge that during said consultation and
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representation their counsel apprised them of the legal effect of the release and waiver of
unknown or unsuspected claims as to Monroe County and the State of Florida. Having been so
apprised, they nevertheless elect to and do assume all risks for claims as to Releasees heretofore
or hereafter arising, known or unknown, relating to the subject matters contained herein, and
Releasors expressly include within the scope of this Agreement all such claims as to Monroe
County and the State of Florida, and expressly waives any right they may have to dispute the
scope of this Agreement on the basis of any statutory or common law grounds addressing the
issue of the release of unknown or unsuspected claims as to Monroe County and the State of
Florida.
The parties agree that nothing in this agreement shall be construed as a waiver of Davis'
claims to unpaid appellate fees by the State of Florida.
NO ADMISSION OF LIABILITY
It is understood and agreed that this Agreement, any considerations given or accepted in
connection with it, and the promises and covenants made in it, are all made, given, and accepted
in settlement and compromise of disputed claims and are not an admission of liability by any
party. Neither the execution nor performance of this Agreement, nor any of its terms or
provisions, will be deemed a presumption, concession, statement, or admission of any fact,
liability, fault, or wrongdoing of any kind by either Releasor, Monroe County, or the State of
Florida, and neither this Agreement nor any of its terms can be used in any legal or equitable
proceeding, other than to enforce the provisions of this Agreement. The decision to settle a case
may reflect the economic practicalities pertaining to the cost of litigation.
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ENTIRE AGREEMENT
This Agreement represents the entire agreement between the parties and supersedes all
prior communications, discussions, agreements, or understandings between the parties. This
Agreement is entered into without reliance upon any statement or representation of any party
hereby released except for those contained in this Agreement. Any oral or written promises or
assurances not contained in this Agreement are waived, abandoned, withdrawn, and without
legal effect. Further, the parties acknowledge that no other party, or agent, or attorney of any
other party, has made any promise, representation, or warranty whatsoever, express or implied,
not contained herein concerning the subject matter hereof, to induce the other party to execute
this Agreement, and the parties acknowledge they have not executed this Agreement in reliance
upon any such promise, representation, or warranty not contained herein.
MODIFICATION IN WRITING
This Agreement embodies all the settlement agreements of the parties and may be
amended, modified, altered, or changed only by a verified written instrument executed by all
parties wherein specific reference is made to this Agreement.
GOVERNING LAW
This Agreement was negotiated and executed in the State of Florida and shall be
construed and enforced in accordance with the laws of the State of Florida, without regard to
conflicts of laws principles.
VENUE
For any legal dispute arising out of this Agreement, the proper venue for any action will
be in the Circuit Court of the Sixteenth Judicial Circuit Court of Florida, in and for Monroe
County, Florida.
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SUCCESSORS AND ASSIGNS
Except as may be otherwise set forth herein, the parties to this Agreement agree and
covenant that this Agreement is binding on the parties, and their subsidiaries, representatives,
and successors in-interest, and all other persons, firms, corporations, agencies, or entities with
whom any of the former have been, are now, or may hereafter be affiliated. Releasors do hereby
covenant, warrant, and represent that they have not assigned, in whole or in part, any right,
claim, or cause of action to any other person or party which might be asserted in the future
against Releasee.
CONSTRUCTION OF TERMS
As used in this Agreement, the singular shall include the plural, the plural shall include
the singular, and the use of any gender shall include all genders as the context may admit or
require. The language of all parts of this Agreement shall be construed as a whole and according
to its plain meaning.
INTERPRETATION OF SETTLEMENT AND RELEASE AGREEMENT
In the event of litigation between the parties, this Agreement shall not be strictly
interpreted or construed against any party due to that party having prepared this Agreement, as it
is acknowledged that all parties participated in the negotiation and preparation of this Agreement
and have been represented by experienced counsel.
SEVERABILITY
Any provision of this Agreement declared illegal or unenforceable by any court of
competent jurisdiction that cannot be modified to be enforceable will immediately become null
and void, leaving the remainder of this Agreement in full force and effect.
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SECTION READINGS
All section or paragraph headings appearing in this Agreement have been inserted for the
sole purpose of convenience and ready reference of the parties. They do not purport to, and shall
not be deemed to, define, limit, or extend the scope or 'intent of the sections and paragraphs to
which they may pertain.
MULTIPLE ORIGINALS
Multiple copies of this Agreement may be executed by the parties hereto, each of which
shall be deemed to be an original.
COUNTERPARTS
This Agreement may be executed in counterparts, each of which will be deemed an
original, and all of which together will constitute a single document- Execution of facsimile
copies, scanned copies, and other reproductions will be acceptable as counterparts.
AUTHORITY TO ENTER INTO AGREEMENT
By their signatures, the undersigned warrant and represent they are authorized to enter
into this Agreement on behalf of their respective parties and to bind their respective parties to the
terms of this Agreement.
IN FITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first written below:
MONROE COUNTY, FLORIDA
MICHELLE COLDIRON M 0 N 14,'0 6 e,e,)u tqlfV Affol h N t'iY
MONROE COUNTY MAYOR APPROVED AS TO' FORM,
BOB SHILLINGER
COUNTY ATTORNEY Dqltally,ipd by Ftbn S.Shillmg, ASSISTANT CO U- ATTORNEY
IN:--11,1,sh'lfv.ge'-M..—C—ty socc.
Robert B. Shillinger My Aft—y'—1='h1l n'p' DATE----�
Dnt'tMD 02A 10,5144-05W
Monroe County Attorney's Office
I I 11 12"' Street, Suite 408
Key West, FL 33041-1026
'I-
Gated: February_LT , 2021
SMITH HAWKS, PL
BARTON SM T
Smith Havv L
138 Simonton Street
Key West, FL 33040
Dated: February_Ll , 2021
DONAL ' AV S
Address:
Dated: February 2021
USABRADEEN
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