Item S02 �s S.2
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County of Monroe
�y,4 ' �, "tr, BOARD OF COUNTY COMMISSIONERS
County �a� Mayor Michelle Coldiron,District 2
�1 nff `ll Mayor Pro Tem David Rice,District 4
-Ile Florida.Keys Craig Cates,District 1
Eddie Martinez,District 3
w Mike Forster,District 5
County Commission Meeting
June 16, 2021
Agenda Item Number: S.2
Agenda Item Summary #3365
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger(305) 292-3470
N/A
AGENDA ITEM WORDING: Approval of a Settlement and Release Agreement with the State of
Florida in Galleon Bay v. Monroe County & State of Florida (Circuit Court Case No. CAK-02-595)
and authorization for County Attorney to execute agreement.
ITEM BACKGROUND: On May 26, 2016, a Final Judgment was entered in favor of Galleon Bay,
finding Monroe County and the State of Florida liable for the inverse condemnation of Galleon
Bay's property on Big Pine Key, FL, in the amount of$480,511.60, inclusive of prejudgment
interest through June 1, 2016,plus statutory interest thereafter(the court reserved jurisdiction on the
matter of attorneys fees and costs). The Final Judgment was affirmed by the Third District Court of
Appeal. On September 19, 2019, Monroe County individually paid $539,369.67 into the Court
Registry to satisfy the Final Judgment. Pursuant to the Settlement and Release Agreement, the State
of Florida agrees to reimburse Monroe County for 50% of the Final Judgment it paid. Upon payment
of the State's 50% share in the amount of$269,684.83, the Settlement and Release Agreement
provides that the County will release its third-party compliant claims against the State.
PREVIOUS RELEVANT BOCC ACTION: On September 18, 2019, the Board passed Resolution
No. 06-2019 authorizing the Monroe County Comprehensive Land Authority to pay the Final
Judgment in Galleon Bay, including the State's 50% share.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approve Settlement and Release Agreement.
DOCUMENTATION:
6.7.2021 Galleon Bay Settlement and Release Agreement.final.exhs
FINANCIAL IMPACT:
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Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
REVIEWED BY:
Bob Shillinger Completed 06/08/2021 9:26 AM
Derek Howard Completed 06/08/2021 9:34 AM
Purchasing Completed 06/08/2021 9:37 AM
Budget and Finance Completed 06/08/2021 9:45 AM
Maria Slavik Completed 06/08/2021 9:53 AM
Liz Yongue Completed 06/08/2021 10:30 AM
Board of County Commissioners Pending 06/16/2021 9:00 AM
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IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
GALLEON BAY CORPORATION, a Florida
Corporation,
Plaintiff,
vs. Case No.: CAK-02-595
BOARD OF COMMISSIONERS OF
MONROE COUNTY, FLORIDA,
Defendant, E
vs.
STATE OF FLORIDA, 2
Third Parry Defendant
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SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT (the "Agreement") is made and
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entered into by the Board of Commissioners of Monroe County, Florida (hereinafter known as 2
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"Releasor"), and the State of Florida (hereinafter referred to as "Releasee"), through the
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Department of Economic Opportunity. Releasor and Releasee may also be individually referred to .�
as a "Party," and collectively as the "Parties." The purpose of this Agreement is to provide for a
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global settlement and the release between the Releasor and Releasee of all claims at both the trial
and appellate levels arising out of or related to the case styled Galleon Bay Corporation v. Board
of Commissioners ofMonroe County, Florida, Case No. CAK-02-595, filed in the Circuit Court of 0
the Sixteenth Judicial Circuit (the "Suit"). This Agreement specifically does not address or
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include any claims for costs and attorney's fees by Plaintiff Galleon Bay Corporation which may
be brought, ordered, or denied.
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WHEREAS, the Suit concerns inverse condemnation claims brought by Plaintiff Galleon
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Bay Corporation against Releasor related to Releasor's application of the Rate-of-Growth
Ordinance (ROGO)to Galleon Bay's property on No Name Key, Florida; and
WHEREAS, Releasor joined the State of Florida as a party to the Suit by filing a Third-
Party Complaint on January 21, 2004;1 and
WHEREAS, the Third-Party Complaint alleges that Releasor faced liability in the Suit as a
"direct result of [Releasee]-imposed legislative and administrative mandates that limited the
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number of annual residential building permits that [Releasor] is authorized to issue" and seeks ,
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indemnification, contribution, and subrogation for all or part of any damages for which Releasor -
might be held liable as a result of the Suit; and 2
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WHEREAS, on October 9, 2007, Galleon Bay named the State of Florida as a direct
defendant pursuant to its Complaint Against Third-Party Defendant State of Florida; and
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WHEREAS, Releasee is contesting the Suit and Third-Party Complaint, and does not
admit any liability whatsoever; and
WHEREAS, after years of trial- and appellate-level litigation, the trial court entered a Final
Judgement against Releasor and the State of Florida on May 26, 2016, in the amount of
$480,511.60, inclusive of prejudgment interest through June 1, 2016, plus statutory interest
thereafter. The trial court reserved jurisdiction on the matter of attorneys' fees and costs. The E
Third District Court of Appeal affirmed the Final Judgment; and
WHEREAS, on March 19, 2019, Plaintiff filed a motion to declare the May 26, 2016,
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Final Judgment Null and Void. On August 15, 2019, the trial court denied the motion. Thereafter,
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1 A true and correct copy of the Third-Party Complaint is attached hereto as Exhibit 1.
z A true and correct copy of the Final Judgment is attached hereto as Exhibit 2.
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the Third District Court of Appeal affirmed the denial with written opinion and Plaintiff presently
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seeks review in the Florida Supreme Court; and
WHEREAS, on advice of counsel, Releasor and Releasee believe the trial court's August
15, 2018 denial will not be disturbed and the May 26, 2016 Final Judgment shall stand as the
ultimate resolution of the Suit, exclusive of attorneys' fees and costs; and
WHEREAS, on September 19, 2019, Releasor satisfied the May 26, 2016 Final Judgment
with a payment of$539,369.67 ($531,390.67 to the Registry of the Court and $7,979.00 in Clerk's
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Fees); and ,
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WHEREAS, the Florida Legislature appropriated monies to Releasee for the 2020-2021 -
Fiscal Year for purposes of reimbursing the Releasor for 50% of the judgment it paid on behalf of 0
Releasor and the State of Florida; and
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WHEREAS, Plaintiff, Releasor, and Releasee have pending claims as to their respective �?
entitlement to recover attorneys' fees and costs; and
WHEREAS, in light of the pending conclusion of this litigation, Releasor and Releasee
wish to resolve, settle, and compromise all claims, disputes, and controversies between them
related to or arising from the Suit, excluding attorneys' fees and costs.
NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS: in consideration of the
mutual covenants and obligations set forth herein, the receipt and sufficiency of which are hereby E
acknowledged, the Parties agree to the following:
PAYMENT BY RELEASEE m
Releasee shall make payment to Releasor in the Total Settlement Amount of $269,684.83
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(which is fifty percent(50%) of the amount already paid by Releasor in satisfaction of the May 26,
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2016 Final Judgment, inclusive of interest and Court Registry Services Charges), exclusive of any
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award, if any, to Galleon Bay for attorney's fees and costs.
RELEASE BY RELEASOR
Upon execution of this Agreement, Releasor agrees that it will bring no new claims
actions, or demands against Releasee related to, arising out of, or in any way connected to the Suit
or the events giving rise to the Suit.
Upon payment by Releasee of the Total Settlement Amount of$269,684.83, Releasor will
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fully, forever, voluntarily, knowingly, and upon advice of counsel, release, remise, acquit, and ,
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forever discharge Releasee, and all of its attorneys, agents, servants, employees, associates, -
administrators, successors, predecessors, officers, directors, representatives, insurers and assigns, 2
from any and all claims, crossclaims, third-party claims, demands, damages, actions, causes of
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action, suits, covenants, contracts, controversies, agreements, promises, or judgments whatsoever, �?
in law or in equity, related to, arising out of, or otherwise concerning any final judgment or
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damages entered against the Parties in the Suit, excepting only the award of attorneys' fees and CD
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costs in the Suit.
NECESSARY EXECUTION DEADLINE AND CONTINGENCY
This Agreement shall be null and void in its entirety if not executed by all Parties on or
before June 30, 2021. This Agreement is contingent upon its approval by the Chief Financial E
Officer of the State of Florida.
NO ADMISSION OF LIABILITY
The Parties agree that this Agreement, any considerations given or accepted in connection
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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
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execution nor performance of this Agreement, nor any of its terms or provisions, will be deemed a
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presumption, concession, statement, or admission of any fact, liability, fault, or wrongdoing of any
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kind by either Releasor or Releasee. Neither this Agreement nor any of its terms may be used in
any legal or equitable proceeding, other than to enforce the provisions of this Agreement. The
decision to settle this case reflects the economic practicalities pertaining to the cost of litigation.
ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Parties and supersedes all
prior communications, discussions, agreements, or understandings (written or oral) between the
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Parties. The Parties enter into this Agreement without reliance upon any statement or ,
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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, 2
withdrawn, and without legal effect. Further, the Parties acknowledge that no other party, agent,
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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
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party to execute this Agreement. 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 of the settlement agreements of the Parties and may be
amended, modified, altered, or changed only by a verified written instrument executed by both E
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
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and enforced in accordance with the laws of the State of Florida, without regard to conflicts of c„
laws principles.
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VENUE
For any legal dispute arising out of this Agreement, the proper venue for any action will be
in the appropriate court of the Second Judicial Circuit of Florida, in and for Leon County, Florida.
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
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any of the former have been, are now, or may hereafter be affiliated. Releasor does hereby ,
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covenant, warrant, and represent that it has 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. 2
CONSTRUCTION OF TERMS
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As used in this Agreement, the singular shall include the plural, the plural shall include the 2
singular, and the use of any gender shall include all genders as the context may admit or require.
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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, E
because the Parties acknowledge that they equally participated in the negotiation, drafting, and
preparation of this Agreement while represented by experienced counsel.
SEVERABILITY
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Any provision of this Agreement declared illegal or unenforceable by any court of N
competent jurisdiction that cannot be modified to be enforceable will immediately become null
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and void, leaving the remainder of this Agreement in full force and effect.
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SECTION HEADINGS
Any 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
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shall be deemed to be an original. ,
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COUNTERPARTS
This Agreement may be executed in counterparts, each of which will be deemed an 0
original, and all of which together will constitute a single document. Execution of facsimile
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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.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
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written below:
MONROE COUNTY, FLORIDA STATE OF FLORIDA
CD
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ROBERT B. SHIL,LINGER DANE EAGLE, SECRETARY,
COUNTY ATTORNEY FLORIDA DEPARTMENT OF
ECONOMIC OPPORTUNITY
Office of the County Attorney
111 12th Street, Suite 408
Key West, FL 33041-1026 Florida Department of Economic Opportunity
107 East Madison Street E
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Dated: , 2021 The Caldwell Building, MSC 110 ,
Tallahassee, FL 32399-4128 v)
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Dated: , 2021
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EXIIIIIBIT I
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IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
GALLEON BAY CORPORATION,
a Florida corporation, and
HANNELORESCHLEU
Plaintiffs,
V. CASE NO. CAK-02-595
BOARD OF COMMISSIONERS
OF MONROE COUNTY, FLORIDA, 03
Defendant, and =
STATE OF FLORIDA, _ c
Third-Party Defendant.
THIRD-PARTY COMPLAINT `
Defendant, BOARD OF COMMISSIONERS OF MONROE COUNTY, FLORIDA,
("MONROE COUNTY") sues third-party Defendant STATE OF FLORIDA ("the STATE") and E
alleges:
1. Plaintiffs filed a complaint against Defendant MONROE COUNTY. A copy is
attached hereto.
2. Through Chapters 163 and 380, Florida Statutes, and Chapter 28-20, Florida
Administrative Code, the STATE directly and indirectly controls the issuance of all MONROE
COUNTY development orders, as well as the adoption and enforcement of all MONROE
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COUNTY comprehensive plan provisions and land development regulations.
3. Pursuant to Chapter 28-20, F.A.C., the Administration Commission has sole
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discretion and authority to supplement MONROE COUNTY'S comprehensive plan and land
development regulations, specifically including the residential Rate-of-Growth ("ROGO")
provisions alleged to have cause the unconstitutional taking of Plaintiffs'property in this case.
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4. The original ROGO provisions that became effective in 1992 were a direct result
of STATE-imposed legislative and administrative mandates that limited the number of annual
residential building permits that MONROE COUNTY is authorized to issue. E
5. Pursuant to Section 28-20.100(47), F.A.C., the STATE expressly amended
MONROE COUNTY'S comprehensive plan to include Policy 103.1.1, relating to the long-term
viability of the federally-endangered Key Deer and which reads, in relevant part, as follows:
. . . Development on Big Pine Key and No Name Key may be allowed
only in accordance with the [ROGO] permit allocation system. In order to
protect the amount and quality of habitat areas necessary to promote
recovery of the Key Deer, single-family housing units and mobile home
units shall not exceed eight (8) per year, including affordable housing
units.
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6. Additional amendments to ROGO that became effective in 1996 were directly
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adopted and imposed on MONROE COUNTY by the Administration Commission and/or
Department of Community Affairs by Rule 28-20.100(10),Florida Administrative Code.
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7. These 1996 ROGO amendments resulted in a recalculation of Plaintiffs' ROGO 2
scores from approximately 2 per lot to approximately-70 to -77 per lot.
8. All regulations alleged by Plaintiffs to have resulted in the unconstitutional taking
of their property were directly or indirectly imposed on MONROE COUNTY by the STATE or
were directly adopted by the STATE.
CONTRIBUTION
9. MONROE COUNTY hereby re-alleges paragraphs 1 through 8 herein. 0
10. MONROE COUNTY is entitled to compulsory payment and/or contribution from
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the STATE as to all or a portion of all damages and other relief that may be awarded in favor of
Plaintiffs in this case, including attorney's fees and costs.
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INDEMNITY
11. MONROE COUNTY hereby re-alleges paragraphs 1 through 8 herein.
12. The STATE is solely vicariously liable for adoption and application of all
regulations that have resulted in the alleged taking of Plaintiffs'property.
13. MONROE COUNTY is entitled to indemnification by the STATE as to all or a
part of all damages that may be awarded in favor of Plaintiffs in this case, including attorney's
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fees and costs.
SUBROGATION
14. MONROE COUNTY hereby re-alleges paragraphs 1 through 8 herein.
15. MONROE COUNTY is entitled to subrogation by the STATE as to all or a part
of all damages that may be awarded in favor of Plaintiffs in this case, including attorney's fees
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and costs.
WHEREFORE, Defendant MONROE COUNTY demands judgment against the third
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party defendant, STATE OF FLORIDA, for all damages that are adjudged against Defendant in 2
favor of Plaintiff(s), including any award of attorney's fees and costs.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a correct and true copy of the foregoing was sent via U.S.
Mail to James S. Mattson, Esq., P.O. Box 586, Key Largo, FL 33037 and Paul R. Golis, 2000
Glades Road, Ste. 208, Boca Raton, FL 33431 this day of
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Karen K. Cabanas
Florida Bar No. 136964
MORGAN& HENDRICK
Attorneys for Monroe County
317 Whitehead Street
Key West, Florida 33040
(305) 296-5676 0
(305) 296-4331 (fax)
KCabanas@morganandhendrick.com
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EXIIIIIBIT 2
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IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
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GALLEON BAY CORPORATION, a Florida CASE NO. CAK-02-595 2
Corporation, cam,
Plaintiff, Z� o
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VS.
BOARD OF COMMISSIONERS OF
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MONROE COUNTY, FLORIDA, - w, E
Defendant,
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STATE OF FLORIDA,
Third Party Defendant.
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FINAL JUDGMENT
THIS CAUSE came before the court upon the jury's verdict resulting from the February
2016 jury trial on the fair market value of the subject property as of July 19, 2001.
UPON CONSIDERATION of the verdict, the Judgment of Liability and Order of Taking,
the record, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED that judgment is hereby entered in favor of Galleon Bay
Corporation and against Defendants as follows:
1. The jury determined that the fair market value of the subject lots as of July 19, 2001,
was as follows:
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LOT RE # VALUE
Lot 1 319494-000100 $45,000.00 N
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Lot 2 319494-000200 $35,000.00
Lot 3 319494-000300 $30,000.00 °3
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Lot 4 319494-000400 $30,000.00
Lot 5 319494-000500 $30,000.00
Lot 6 319494-000600 $35,000.00 CD
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Lot 7 319494-000700 $11,500.00
Lot 8 319494-000800 $11,500.00
Lot 9 319494-000900 $11.500.00
Lot 10 319494-001000 $11,500.00
Lot 11 319494-001100 $11,500.00
Lot 13 319494-001300 $11,500.00
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Lot 14 319494-001400 $11,500.00
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2. With respect to the takings of Lots 1, 2, 3, 6, 7, 8, and 11, that were found to be y
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permanent in the Order of Taking, Defendants shall pay Galleon Bay the total fair
market value of the lots ($179,500.00), plus simple statutory interest from July 19,
2001, until payment is made. Judgment will be entered in the amount of$370,580.70
which includes prejudgment interest as of June 1, 2016. Upon payment of this just
compensation, title of Lots 1, 2, 3, 6, 7, 8, and 11 shall pass to Monroe County.
3. With respect to the temporary taking of Lot 4, Defendants shall pay Galleon Bay
simple statutory interest on the fair market value of the lot ($30,000.00) from July 19,
2001, through August 29, 2013, in the amount of $27,822.72 plus prejudgment
interest as of June 1, 2016 in the amount of$3,688.58.
4. With respect to the temporary taking of Lot 5, Defendants shall pay Galleon Bay
simple statutory interest on the fair market value of the lot ($30,000.00) from July 19,
2001, through June 27, 2012, in the amount of$26,085.43 plus prejudgment interest
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in the amount of$4,866.53 as of June 1, 2016.
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5. With respect to the temporary taking of Lot 9, Defendants shall pay Galleon Bay
simple statutory interest on the fair market value of the lot ($11,500.00) from July 19,
2001, through March 28, 2012, in the amount of$9,889.83 plus prejudgment interest
in the amount of$ 1,903.55 as of June 1, 2016.
6. With respect to the temporary taking of Lot 10, Defendants shall pay Galleon Bay a
simple statutory interest on the fair market value of the lot ($11,500.00) from July 19,
2001, through March 28, 2012, in the amount of$ 9,889.83 plus prejudgment interest
in the amount of$ 1,903.55 as of June 1, 2016. E
7. With respect to the temporary taking of Lot 13, Defendants shall pay Galleon Bay
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simple statutory interest on the fair market value of the lot ($11,500.00) from July 19,
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2001, through March 9, 2011, in the amount of$ 9,234.97 plus prejudgment interest
in the amount of$ 2,761.91 as of June 1, 2016. y
8. With respect to the temporary taking of Lot 14, Defendants shall pay Galleon Bay
simple statutory interest on the fair market value of the lot ($11,500.00) from July 19,
2001, through August 29, 2012, in the amount of $ 10,118.93 plus prejudgment E
interest in the amount of$1,765.07 as of June 1, 2016.
9. The Court finds that Plaintiff is a prevailing party and is entitled to recover attorneys' �
fees and costs. Accordingly, the Court hereby retains jurisdiction to conduct a hearing
after the entry of the final judgment to determine the amount of fees and costs to be
awarded by a separate judgment. E
10. The Court hereby enters judgment in the total amount of$480,511.60 (Four Hundred )
Eighty Thousand Five Hundred Eleven dollars and sixty cents) which includes
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prejudgment interest up to June 1, 2016 with statutory interest from June 1, 2016 until
judgment is satisfied. N
Subject to the provisions of § 11.066, Fla. Stat., LET EXECUTION ISSUE. The court
retains jurisdiction to assess attorneys' fees and costs.
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Case No: 2002-CA-595-K
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DONE and ORDERED at Key West, Monroe County, Florida, this*QfO day of May,
2016.
Ada
Mark H. Jon s
CIRCUIT JUD
cc: Andrew M. Tobin, Esq. tobinlaw@terranova.net
tobinlaw2@gmail.com
Derek V. Howard, Esq. howard-derek@monroecounty-fl.gov
dastugue-laurie@monroecounty-fl.gov E
Jonathan A. Glogau, Esq. jon.glogau@myfloridalegal.com
chanda.johnson@myfloridalegal.com
Barton Smith, Esq. bart@smithoropeza.com
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