William G. Wormuth and Gayle L. Wormuth, File No CH-T. Plaintiffs,

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1 STATE OF MICHIGAN IN THE BERRIEN COUNTY TRIAL COURT - CIVIL DIVISION Berrien County Courthouse, 811 Port Street, Telephone: (269) William G. Wormuth and Gayle L. Wormuth, File No CH-T Plaintiffs, -vhonorable: Alfred M. Butzbaugh Arlene Pokuta, individually and as Secretary Of Sunset Shores Property Owners Association; Edward Slingsby, individually and as President of Sunset Shore Property Owners Association; Sunset Shore Property Owners Association; Lot Owners, All Sunset Shore Subdivisions in the Village of New Buffalo; Treasurer, State of Michigan; City of New Buffalo; Berrien County Drain Commissioner; Chairperson, Board of County Road Commissioners, and all others claiming an interest in the subject matter of this lawsuit, SECOND POST-TRIAL BRIEF ON BEHALF OF DEFENDANTS HARBOR COUNTRY, L.L.C.; GEORGE SALERNO; CECELIA M. SALERNO AND JENNIFER SALERNO; JOSEPH G. LISANTI AND JENNIFER LISANTI; DANIEL P. DONNELLY AND MARY E. DONNELLY, CO-TRUSTEES OF THE DANIEL P. DONNELLLY FAMILY REVOCABLE TRUST, AND JERRY LOONEY Defendants. TracyD.Knox(P51170) George D. Horn, Jr. (P40495) Barnes & Thornburg, LLP Attorneys for Plaintiffs 6th Floor, 1st Source Bank Center 100 North Michigan Street South Bend, Indiana Telephone: (574) Randy S. Hyrns (P31333) Bittner, Hyrns, Daly & Riemland Attorneys for Defendant Sunset Shores Property Owners Association et al 610 Ship Street, P.O. Box 290 Telephone: (269) Donald L.Bleich (PI0885) Attorney for Defendant James Raymond Bleich & Mais 816 Ship Street Telephone: (269) Frank J. DeFrancesco (P39540) Attorney for Defendants Harbor Country, L.L.C.; Salerno, Lisanti, Looney and Donnelly DeFrancesco & Dienes 728 Pleasant Street, Suite 204 Telephone: (269) John C. Scherbarth (P28865) Assistant Attorney General MI Department of Attorney General P.O. Box Lansing, Michigan Telephone: (517) Harold Schuitmaker (P20087) Attorney for Defendant City of New Buffalo Cooper, Schuitmaker & Cypher, P.C. 181 West Michigan Avenue, Suite 1 Paw Paw, Michigan Telephone: (269) Page 1 of5

2 John M. Wojcik (P52593) Attorney for Defendants Simenas, Getto and Grzywacz Farina & Wojcik, P.C. 45 North Whittaker Street, Suite 200 New Buffalo, Michigan Telephone: (269) Peter W. Smith (P22999) Peter Smith Law Offices Attorney for Willies Construction 423 Sycamore, Suite 102, P.O. Box 67 Niles, Michigan Telephone: (269) Jerry Mader and Janice Mader Defendants in Pro Per 1180 Shore Drive New Buffalo, Michigan Andrew W. Barnes (P70571) Rodger V. Bittner (PI0836) Attorney for Defendant Berrien County Road Comm. Bittner, Hyrns, Daly & Riemland 610 Ship Street, P.O. Box 290 Telephone: (269) William P. Deputy, Defendant In Pro Per 4200 Middlebury Street Elkhart, Indiana Stephen T. McKenney (P65673) Simon, Galasso & Frantz PLC Attorneys for FDIC 363 West Big Beaver Road, Suite 250 Troy, Michigan Telephone: (248) SECOND POST-TRIAL BRIEF ON BEHALF OF DEFENDANTS HARBOR COUNTRY, L.L.C.; GEORGE SALERNO; CECELIA M. SALERNO AND JENNIFER SALERNO; JOSEPH G. LISANTI AND JENNIFER LISANTI; DANIEL P. DONNELLY AND MARY E. DONNELLY, CO-TRUSTEES OF THE DANIEL P. DONNELLY FAMILY REVOCABLE TRUST, AND JERRY LOONEY NOW COME Defendants, Harbor Country, L.L.C.; George Salerno; Cecelia M. Salerno and Jennifer Salerno; Joseph G. Lisanti and Jennifer Lisanti; Daniel P. Donnelly and Mary E. Donnelly, Co-Trustees of The Daniel P. Donnelly Family Revocable Trust, and Jerry Looney, by and through their counsel, Frank J. DeFrancesco, of DeFrancesco & Dienes, and for their Second Post-Trial Brief state as follows: Back in 1958, the east community beach was established by an easement recorded in Liber 169, page 12, Berrien County Records. See Exhibit A. This community beach is depicted also on Exhibit B, Liber 169, page 24. This community beach is north of the creek. There was also created via a corrective deed of easement, copy attached as Exhibit C, and by the 1968 Judgment, Page 2 of 5

3 copy attached as Exhibit D, an additional community beach partially located in front of Lots 24 and 25. Both the corrective deed and the 1968 Judgment also appear to have included the already existing east community beach created by Liber 169, page 22. Attached as Exhibit E is a copy of Sunset Shores Plat, including Sunset Shores 1,2,3, 4, and 5 (at issue here), and 6 and 7. The 1968 Judgment does not appear to have been effective under the former Subdivision Control Act of 1967, now known and referred to as the Land Division Act ("Act"), MCL et seq, which required that any revision to a plat, made by a judgment needed to be properly documented by an amendment to the plat approved by the necessary parties, and required also that the Court direct the plaintiffs to prepare in the form required by the Act, either a new plat of the subdivision affected by the judgment or a new plat of the entire subdivision and have it properly approved and filed with the State. PA 1967, No. 288, Section 229, effective January 1,1968. It does not appear that this ever happened after the 1968 Judgment was issued, and the Judgment was therefore not effective and/or never properly implemented. It further appears that the additional community beach, partially located in front of Lots 24 and 25, was never properly documented in the form of a revised plat, either. Attached hereto as Exhibit F is the proposed Judgment After Trial which has been offered by the Plaintiffs for the Court's consideration. In addition, attached as Exhibit G is a copy of the Easement to properly establish the community beach partially located in front of Lots 24 and 25, which has been signed by Defendant Salerno, owner of Lot 24 (and which will need to be executed by the Plaintiffs as well); this Easement is referenced in the proposed Judgment, and both the Judgment and the Easement will be recorded at the Register of Deeds, and subsequent to the recording of the Judgment, the Easement will be properly notated and included (shown) as part of the amended plat. Page 3 of 5

4 DESCRIPTIONS The proposed Judgment submitted contains new metes and bounds descriptions for the following: 1. Description of the new private walk. 2. Description of Lot 24, as adjusted. 3. Description of Lot 25, as adjusted. 4. Description of the recreational community beach partially located in front of Lots 24 and 25. These descriptions are contained within Sheets 2 and 3 of the Wightman & Associates drawing bearing a revised date of September 12,2011, which is attached hereto as Exhibit H. The Court had inquired into whether metes and bounds descriptions have been done and they have, as referenced above. In addition, those legal descriptions are depicted in the Wightman drawing (Sheet 1 of 3) bearing a revised date of September 12, This drawing also provides other additional information such as the original West line of Lot 25, the original East line of Lot 24, the revised location of the 10-foot walkway, the original location of the walkway per the plat and other such related information. It also depicts the community beach partially located in front of Lots 24 and 25. The Court also inquired as to what effect the 1968 Judgment attempted to have on the boundaries of Lot 24. Attached hereto as Exhibit I is a Wightman survey report from 2006 which shows the boundaries of Lot 24 as originally platted (green highlighting) and the boundaries of Lot 24 as envisioned by the 1968 Judgment (yellow highlighting). The proposed Judgment (Exhibit F) at Paragraph 5c takes pains to leave intact, the easement recorded at Liber 169, page 22 which established the east community beach. Page 4 of5

5 If this Honorable Court has additional questions, please let us know. Dated: June «=»< /, 2012 Respectfully submitted, Frank J. DeFrancesco (P39540) DeFrancesco & Dienes Attorneys for Defendants, Harbor Country, L.L.C.; George Salerno; Cecelia M. Salerno and Jennifer Salerno; Joseph G. Lisanti and Jennifer Lisanti; Daniel P. Donnelly and Mary E. Donnelly, Co-Trustees of The Daniel P. Donnelly Family Revocable Trust, and Jerry Looney 728 Pleasant Street, Suite 204 Telephone: (269) Page 5 of 5