Respectfully submitted, Respectfully submitted,

/s/ Ronald S. Kopp Js/ C. Edwin Rude
Ronald S. Kopp (Fla. Bar #0004950) C. Edwin Rude, Jr.
rkopp@ralaw.com Florida Bar Number: 0157985
Roetzel & Andress, LPA 211 East Call Street
222 South Main Street Tallahassee, Florida 32301-7607
Akron, Ohio 44308 Telephone: (850) 222-2311
Telephone: 330.376.2700 Facsimile: (850) 222-2120
Facsimile: 330.376.4577

Attorney for Defendants
Clayton W. Crevasse (Fla. Bar No.
0309621)

ccrevasse@ralaw.com
Roetzel & Andress, LPA

2320 First Street, Suite 1000
Fort Myers Florida 33901
Phone: (239) 338-4208

Fax: (239) 337-0970

Attorneys for Plaintiffs
Of Counsel:

Paul W. Lombardi (Ohio Bar #0079179)
lombardi@ralaw.com
Roetzel & Andress, LPA
222 South Main Street
Akron, Ohio 44308
Telephone: 330.376.2700
Facsimile: 330.376.4577

CERTIFICATE OF SERVICE

I hereby certify that on this 18" day of March, 2011, the foregoing Pretrial Stipulation
was filed electronically. Notice of this filing was sent to counsel of record through the Court’s
electronic filing system. Access to this document also can be obtained through the Court’s
electronic system.

/s/ Ronald S. Kopp
Ronald S. Kopp

14


the subsequent meeting with them in Atlanta concerning that project. Notwithstanding
Plaintiff's reference to the June 6, 2007 Memorandum of Interest, the initial
Memorandum of Interest was dated May 7, 2007 and was executed by Scott Seymour as

President of Seymour Construction.

Suffice it to say, had Seymour and the architectural firm not recommended that
the project not be taken any further due to the local economy, the Schindewolfs and “The
View” would have been a total failure and their investment in the project of some Seven
Million Dollars to their Grandson, less the approximate Five Million Dollars recovered
from their threatened law suit with the lawyer Kevin Keough and his firm would have
“gone down the tubes” along with the other hundred, if not thousands, of condominium
units in the Panama City, Bay County area.

LIST OF EXHIBITS

1. Plaintiffs’ Exhibits [Exhibits are marked as they were marked in depositions
so as not to be confusing when depositions are played or read to the Court; some
depositions are not used, which accounts for missing exhibit numbers below.]

1- Notebook for “The View”

4- 11/26/07 email exchange between Jack Coppenger and Scott Seymour,
Sue Hudson and Kevin Keogh re: The View

5- 8/6/07 letter from Brent Barnes of Geiger, Teeple, Smith & Hahn, P.L.L.
to Scott Seymour re: Annexation of 6.806 acres owned by 1460 Edison
St., LLC and rezoning of the entire 10.6 acres

7- 3/27/08 letter from Trudy Plotz, Bureau of Standards and Registration, to
Daniel Harmon, III re: View Condo, Resort Ventures IT, LLC, PR73122

8- 4/21/08 email from Kevin Keogh to Sue Hudson, Scott Seymour, Robin
Kidd and Nate Schindewolf re: 151 Engagement Letter

9- 3/31/08 Letter from Nevin Zimmerman to Billy G. and Doris M.
Schindewolf, c/o Kevin Keogh, re: Engagement Letter for Schindewolf
Living Trust

10- 8/2/08 email from Kevin Keogh to Scott Seymour, forwarding email from
Nevin Zimmerman re: Scott Seymour

11- 4/9/08 email from Kevin Keogh to Scott Seymour re: The View

13- 10/17/08 email between Scott Seymour and Kevin Keogh re:


3. DEFENDANT’S ADVERSE WITNESSES
Billy G, Schindewolf
8644 Kepler Avenue, NW
Canal Fulton, Ohio 44614
Doris M. Schindewolf
8644 Kepler Avenue, NW
Canal Fulton, Ohio 44614

All remaining Plaintiff's Witnesses

E. PLAINTIFF’S REBUTTAL WITNESSES

Bayne Collins

Collins & Associates, Inc.

465 Harrison Avenue

Panama City, Florida 32401

Billy G. Schindewolf

8644 Kepler Avenue, NW

Canal Fulton, Ohio 44614

Doris M. Schindewolf

8644 Kepler Avenue, NW

Canal Fulton, Ohio 44614

Gene Schindewolf

5843 Fernlane Drive

Akron, Ohio 44319
Fr STATEMENT OF ADMITTED FACTS

1, Billy and Doris Schindewolf, through their Trust, the Schindewolf Living Trust,
Dated August 8, 2001 (the “Trust”) at all relevant times owned a parcel of property located at
12401 Front Beach Road, Panama City Beach, Bay County, Florida (the “Property”), which they

purchased in 2006 for the purpose of developing into a high-rise condominium project (the

“Project”).

10


46 -
48 -
51 -

52-

53 -
54 -
55 -
56 -
57 -

5/8/08 email from Scott Seymour to Kevin Keogh

1/29/08 email from Scott Seymour to Kevin Keogh

6/8/07 letter from Kevin Keogh to Scott Seymour re: Articles of
Organization — The View at Panama City, LLC

5/21/07 email exchange between Kevin Keogh and Nate Schindewolf re:
Monday

6/10/07 email from Scott Seymour to Nate Schindewolf

6/6/07 email from Scott Seymour to Nate Schindewolf

Document production, Bates Nos. 000100-000191

Defendant’s Amended Answers to Plaintiffs’ Interrogatories

6/6/07 Memorandum of Interest, re: Development of The View

Defendants’ Exhibits

1-
4-

10-

11 -
13 -

14-

15 -

16 -
17-

18 -

19 -

20 -

Notebook for “The View”

11/26/07 email exchange between Jack Coppenger and Scott Seymour,
Sue Hudson and Kevin Keogh re: The View

8/6/07 letter from Brent Barnes of Geiger, Teeple, Smith & Hahn, P.L.L.
to Scott Seymour re: Annexation of 6.806 acres owned by 1460 Edison
St., LLC and rezoning of the entire 10.6 acres

3/27/08 letter from Trudy Plotz, Bureau of Standards and Registration, to
Daniel Harmon, Il re: View Condo, Resort Ventures II, LLC, PR73122
4/21/08 email from Kevin Keogh to Sue Hudson, Scott Seymour, Robin
Kidd and Nate Schindewolf re: 151 Engagement Letter

3/31/08 Letter from Nevin Zimmerman to Billy G. and Doris M.
Schindewolf, c/o Kevin Keogh, re: Engagement Letter for Schindewolf
Living Trust

8/2/08 email from Kevin Keogh to Scott Seymour, forwarding email from
Nevin Zimmerman re: Scott Seymour

4/9/08 email from Kevin Keogh to Scott Seymour re: The View

10/17/08 email between Scott Seymour and Kevin Keogh re:
Schindewolfs v. Seymour

9/16/08 email between Kevin Keogh and Scott Seymour re: Settlement
Agreement

12/18/07 email exchange between Kevin Keogh and Scott Seymour re:
News

6/19/07 email exchange between Scott Seymour and Kevin Keogh

5/9/07 email exchange between Scott Seymour and Kevin Keogh re:
Schindewolf Memorandum of Interest

11/29/07 email exchange between Kevin Keogh and Scott Seymour re:
The View

7/2/08 email between Kevin Keogh and Scott Seymour re: Schindewolf v.
Scott Seymour and Seymour Construction

7/11/08 email exchange between Kevin Keogh to Scott Seymour re:
Schindewolfs


14-

15-°

16 -
17-

18 -

19 -

20 -

22 -

23 -

24 -
25 -

26 -

28 -
29 -
31-
33 -
34-
35 -
37-
38 -

39-
40 -

42-

43 -

44-

Schindewolfs v. Seymour

9/16/08 email between Kevin Keogh and Scott Seymour re: Settlement
Agreement

12/18/07 email exchange between Kevin Keogh and Scott Seymour re:
News

6/19/07 email exchange between Scott Seymour and Kevin Keogh

5/9/07 email exchange between Scott Seymour and Kevin Keogh re:
Schindewolf Memorandum of Interest

11/29/07 email exchange between Kevin Keogh and Scott Seymour re:
The View

7/2/08 email between Kevin Keogh and Scott Seymour re: Schindewolf v.
Scott Seymour and Seymour Construction

7/11/08 email exchange between Kevin Keogh to Scott Seymour re:
Schindewolfs

7/7/08 email exchange between Kevin Keogh and Scott Seymour re:
Schindewolfs

3/21/08 email exchange between Scott Seymour, Kevin Keogh and Sue
Hudson re: The View

3/20/08 email exchange between Kevin Keogh and Scott Seymour

3/17/08 email from Scott Seymour to Kevin Keogh forwarding email from
“CRS” re: Signs @ PC Bch

6/5/08 email from Kevin Keogh to Scott Seymour forwarding email from
Nevin Zimmerman re: The $5,000 retainer check bounced — see attached.
Would you please send me another check plus the return check fee?
thanks .

6/7/07 email from Scott Seymour to Nate Schindewolf and Kevin Keogh
12/28/07 email from Scott Seymour to Kevin Keogh

6/22/07 email exchange between Scott Seymour and Kevin Keogh re:
Operating Agreement for The View at Panama City, LLC

9/4/07 email exchange between Scott Seymour and Kevin Keogh re: new
e-mail address .
6/27/07 email exchange between Scott Seymour and Kevin Keogh

5/1/07 email exchange between Scott Seymour and Kevin Keogh

4/30/07 email exchange between Scott Seymour and Kevin Keogh

6/7/07 email exchange between Scott Seymour and Kevin Keogh re:
Schindewolf Memorandum of Interest — Word Version

6/28/07 email between Scott Seymour and Kevin Keogh

10/17/08 email exchange between Scott Seymour and Kevin Keogh re:
Schindewolfs

5/15/08 email exchange between Scott Seymour and Kevin Keogh re: The
View

3/1/08 email exchange between Kevin Keogh and Scott Seymour re: The
View

4/17/08 email exchange between Kevin Keogh, Lisa Babish Forbes and
Scott Seymour re: WatersEdge — Purchase Price


61- 3/14/11 Email from Ron Kopp to C. Edwin Rude, Jr. re: Schindewolfs
Agreement with Kevin Keough in Settlement of Schindewolfs proposed action
against Kevin Keough and his law firm.

D. WITNESSES
1. Plaintiffs’ Witnesses

Nathan Schindewolf
5831 Canterbury Road
Akron, Ohio 44319

Billy G. Schindewolf
8644 Kepler Avenue, NW
Canal Fulton, Ohio 44614

Doris M. Schindewolf
8644 Kepler Avenue, NW
Canal Fulton, Ohio 44614

Gene Schindewolf
5843 Fernlane Drive
Akron, Ohio 44319

Kevin Keogh (by videotaped deposition)
19612 Battersea Boulevard
Rocky River, Ohio

Scott Seymour (as upon cross-examination)
100 Leisure Trail
Peachtree City, Georgia 30269

Robin Kidd (deposition to be read to Court)
167 Oak Ridge Trail
Fayetteville, Georgia 30214

2. Defendants’ Witnesses

Scott Seymour

Seymour Construction

2004 Commerce Drive, North
Suite 100

Peachtree, GA 30269


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

,

BILLY G. SCHINDEWOLF, et al. CASE NO. 5:10-CV-00145-RS-MD

Plaintiffs, | JUDGE RICHARD SMOAK
vs. | MAGISTRATE JUDGE CHARLES J.
L KAHN, JR.
SEYMOUR CONSTRUCTION, INC., | PRETRIAL STIPULATION
etal. | AS AMENDED

Defendants.

A. FEDERAL JURISDICTION

This Court has jurisdiction over this case pursuant to 28 U.S.C. §1332 in that there is
complete diversity of citizenship between the parties, and the amount in controversy exceeds
$75,000, exclusive of costs and attorneys fees.
B. NATURE OF THE ACTION

Plaintiffs advanced $500,000 to Defendants for use as “soft costs” by Defendants to
utilize in developing Plaintiffs’ property into a condominium high-rise on the beach in Panama
City, Florida. Plaintiffs assert that the funds were not utilized for “soft costs” (or for any costs
associated with the property outside of a $50,000 payment made to the architect), and that they
are entitled to return of the monies plus interest and costs. Defendants claim they properly used

the advanced funds and are not obligated to return any of the monies. See Statement of each


Construction Company employee related to the Project, and Plaintiffs have also requested

documentation as to any work performed by any person outside of Seymour Construction

Company at the behest of Seymour Construction Company.

12.

No documentation has been provided to Plaintiffs by Defendants as to any work

performed by Seymour Construction Company or any third person on the Project, with the

exception of the above-referenced listing of Seymour Construction Company employment

expenses and the payment to Collins Architectural Firm.

G. STATEMENT OF ISSUES OF LAW AGREED TO

1.

The law of the state of Florida will be applied in this case.

H. STATEMENT OF ISSUES OF FACT REMAINING TO BE LITIGATED

1.

2.

Which Memorandum of Interest was executed by the parties?

What is the definition of “soft costs and expenses,” and does the definition
include payment of regular wages/salaries to Seymour Construction Company
employees?

Did the Project make substantial progress by January 1, 2008?

Was the Operating Agreement called out by the Memorandum of Interest in place
on or before June 30, 2007?

What portion of the $500,000 was legitimately spent by Defendants on “soft costs
and expenses” after execution of the Memorandums of Interest?

What services, if any, were performed by Seymour Construction Company on the
Project, and were those services to be paid for contractually from the $500,000

“soft costs and expenses” advance made by Plaintiffs to Defendants?

12


2. Plaintiffs and Defendants agreed during the first half of 2007 that Seymour
Construction Company would develop the Property into a high-rise condominium project, and
that Plaintiffs would provide Defendants with a $500,000 advance payment to be utilized by
Defendants for “soft costs” in developing the Project.

3. In two installments during the month of June 2007, Plaintiffs provided Defendants
with $500,000 in funds for purposes of allowing Defendants to utilize such funds to pay for “soft
costs” associated with developing the Project.

4. After receiving the funds from Plaintiffs, Defendants provided the architect with a
payment of $50,000, which Plaintiffs agree was due, payable, and properly paid by Defendants.

5. Defendants utilized a portion of the $500,000 in funds provided by Plaintiffs to
pay payroll costs incurred by Seymour Construction Company during 2007.

6. Ground has not been broken on the Property to begin any construction pertaining
to the Project or otherwise.

7. Plaintiffs have requested of Defendants return of all or a portion of the $500,000
provided to Defendants in June of 2007.

8. Defendants have not returned to Plaintiffs any portion of the $500,000 paid by
Plaintiffs to Defendants in June of 2007.

9. Plaintiffs have requested an accounting from Defendants as to how the $500,000
advance paid by Plaintiffs to Defendants in June of 2007 was utilized by Defendants.

10. The only accounting provided by Defendants to Plaintiffs pertaining to use of the
$500,000 advance payment has been a listing of all payroll costs expended by Seymour
Construction during 2007.

11. Plaintiffs have requested documentation of any work performed by any Seymour

11


22 -

23 -

24-
25 -

26 -

28 -
29 -
31-

33 -

34-
35-
37-
38 -

39-
40-

42 -
43 -
44.
46 -
51-
52-
53 -
54-
55-
56 -
57-
58-

59-
60-

7/7/08 email exchange between Kevin Keogh and Scott Seymour re:
Schindewolfs

3/21/08 email exchange between Scott Seymour, Kevin Keogh and Sue
Hudson re: The View

3/20/08 email exchange between Kevin Keogh and Scott Seymour

3/17/08 email from Scott Seymour to Kevin Keogh forwarding email from
“CRS” re: Signs @ PC Bch

6/5/08 email from Kevin Keogh to Scott Seymour forwarding email from
Nevin Zimmerman re: The $5,000 retainer check bounced — see attached.
Would you please send me another check plus the return check fee?
thanks

6/7/07 email from Scott Seymour to Nate Schindewolf and Kevin Keogh
12/28/07 email from Scott Seymour to Kevin Keogh

6/22/07 email exchange between Scott Seymour and Kevin Keogh re:
Operating Agreement for The View at Panama City, LLC

9/4/07 email exchange between Scott Seymour and Kevin Keogh re: new
e-mail address

6/27/07 email exchange between Scott Seymour and Kevin Keogh

5/1/07 email exchange between Scott Seymour and Kevin Keogh

4/30/07 email exchange between Scott Seymour and Kevin Keogh

6/7/07 email exchange between Scott Seymour and Kevin Keogh re:
Schindewolf Memorandum of Interest - Word Version

6/28/07 email between Scott Seymour and Kevin Keogh

10/17/08 email exchange between Scott Seymour and Kevin Keogh re:
Schindewolfs

5/15/08 email exchange between Scott Seymour and Kevin Keogh re: The
View

3/1/08 email exchange between Kevin Keogh and Scott Seymour re: The
View

4/17/08 email exchange between Kevin Keogh, Lisa Babish Forbes and
Scott Seymour re: WatersEdge — Purchase Price

5/8/08 email from Scott Seymour to Kevin Keogh

1/29/08 email from Scott Seymour to Kevin Keogh

6/8/07 letter from Kevin Keogh to Scott Seymour re: Articles of
Organization — The View at Panama City, LLC

5/21/07 email exchange between Kevin Keogh and Nate Schindewolf re:
Monday

6/10/07 email from Scott Seymour to Nate Schindewolf

6/6/07 email from Scott Seymour to Nate Schindewolf

Document production, Bates Nos. 000100-000191

Defendant’s Amended Answers to Plaintiffs’ Interrogatories

6/6/07 Memorandum of Interest re: Development of The View

5/07/07 Memorandum of Interest re: Development of The View

12/28/10 Deposition of Scott Seymour

09/04/08 Letter to Scott Seymour from Kevin Keough


and accepted and signed by Scott Seymour, as President of Seymour Construction.
Notwithstanding Plaintiffs Statement of the Case, Seymour Construction did not
approach the Schindewolfs. Rather, the Schindewolfs attorney, Kevin Keogh,
approached Seymour Construction, due to his knowledge of Seymour Construction’s
good reputation and ability to follow through on the due project. In September of 2008,
the Schindewolf’s counsel, Kevin Keough, wrote Scott Seymour and Seymour
Construction and referenced the advance of the $500,000.00 to Seymour Construction as
a deposit toward payment of any soft costs and/or expenses and further advised Seymour
Construction that the Schindewolfs no longer wished to utilize its services for their
project. On information and belief, during this time period the Schindewolfs, through
their counsel Ron Kopp and his law firm, communicated with Kevin Keough, their intent
to sue Kevin Keough for his involvement in “The View” project. On information and
belief that litigation was settled without proceeding to litigation by the payment of an
estimated Five Million Dollars by Kevin Keough and his law firm, Buckley King to the
Schindewolfs. For some reason, no reference was made by Schindewolfs counsel, Kevin
Keough, to the May or June 2007, Memorandums of Interest. It is Seymour
Constructions position that, in addition to the $50,000.00 paid to the architect of the
project, the remainder of the funds were used in payment of the salaries of personnel
retained by Seymour Construction for their work done in connection with “The View”
project. Additional funds were utilized in connection with Scott Seymours travel from
Atlanta, where he is based, to and from Panama City in connection with “The View”
project as well as his initial expenses in traveling to meet with the Schindewolfs at the

request of their then counsel Kevin Keough in connection with “The View” project and


2008, or to the present time.

Seymour claims that he utilized the monies to make payroll during all of 2007. Witnesses
will testify that many other projects were ongoing at Seymour Construction Company in 2007,
and that if any work was done with respect to the Schindewolf project, it was a small portion of
the work conducted at Seymour Construction Company. Nonetheless, Seymour claims
(according to Answers to Interrogatories) that he was entitled to use all of the Schindewolf
advance to pay his employees during the entire year of 2007 (in spite of the fact that the
Schindewolfs engaged in no agreement with Seymour until June of 2007).

In spite of repeated request for an accounting, Seymour has never provided an iota of
detail concerning any out-of-pocket expenses — with the exception of the $50,000 paid to the
architect. It was only after filing this lawsuit that Seymour began admitting that the funds were
used to pay wages of his regular employees. In spite of requests, he has produced no work
product of those employees, in any fashion related to the Schindewolf project.

2. Defendants’ Statement of the Case

The Plaintiff's Grandson, Nate Schindewolf, with others, purchased the property
in Panama City, Florida, named “The View” for approximately Five Million Dollars and
subsequently sold that property to Plaintiffs Billy and Dora Schindewolf for
approximately Seven Million Dollars. In early 2007, Seymour Construction was
approached by Kevin Keough, an attorney for the Plaintiffs at the time in connection with

obtaining its assistance in developing The View project for the Schindewolfs. On May 5,

2007, Seymour Construction agreed to a Memorandum of Interest concerning the

proposed development of The View project and again, on June 6 of that year a subsequent

Memorandum of Interest was proposed by the Schindewolfs to Seymour Construction


party’s case.

1. Plaintiffs’ Statement of the Case

In 2006, Plaintiffs Billy and Doris Schindewolf, an elderly couple residing a portion of
the year in Ohio and the other portion in central Florida, inherited a sum of money arising out of
the sale of a family farm in the Carolinas. The Schindewolfs placed their inheritance in a living
trust formed in Ohio, and they used some of those funds to purchase an investment in a real
estate project in Panama City, Florida, named “The View.”

The seller of the property was to have participated in development of the project, but that
company failed to follow through. In early 2007, Scott Seymour and Seymour Construction, Inc.
approached the Schindewolfs about developing their project for them. In June of that year, the
parties entered into and executed a Memorandum of Interest. There is some dispute as to the
terms of that Memorandum, but there is no dispute that the Schindewolfs agreed to provide
Seymour with $500,000 in “soft costs” in order to get the project started. There also is no
dispute but that the Schindewolfs provided those funds in two payments prior to June 30, 2007.
While the project never got started, Seymour claims the funds no longer exist. Other than
$50,000 Seymour paid to the architect of the project, all of the other funds were used by Seymour
to divert for other of his business and personal uses. While the project was never initiated,
Seymour has refused to return any part of the “soft cost” funds provided by the Schindewolfs.

Pursuant to the Memorandum of Interest as claimed by Plaintiffs to have been executed
by all parties, the parties agreed that the Schindewolfs would advance Seymour a total of

- $500,000 on or before June 30, 2007. That sum (less any direct costs) would be refunded to
Plaintiffs in the event the project had not made substantial progress by June 1, 2008. Not only

was there no “substantial” progress, but there was no progress at all either before January 1,


. STATEMENT OF THOSE ISSUES OF LAW REMAINING FOR
DETERMINATION

1. Whether Defendant Scott Seymour can be held individually responsible for his
conduct and the damage as alleged in this case?

DISAGREEMENTS AS TO APPLICATION OF THE FEDERAL RULES OF
EVIDENCE AND/OR OF CIVIL PROCEDURE

At this time, it is not known that any such disagreements exist.

LIST OF MOTIONS OR OTHER MATTERS REQUIRING ACTION BY THE
COURT

No matters known to the parties currently require action by the Court.
DISAGREEMENTS AS TO EXHIBITS

The parties agree to authenticity of all exhibits listed by each party; reserving any other
objections for trial.

THIS IS A NON-JURY CASE

ESTIMATES OF LENGTH OF TRIAL

1. Plaintiffs’ counsel expects this case will last between 1.5 and 2 trial days, perhaps
shorter.
2. Defendants‘ counsel expects this case will last between 1.5 and 2 trial days,

perhaps shorter.

13