This is an example of a complaint for fraud, breach of fiduciary duty, libel, slander and tortious interference for a claim against WaterSound Community Association and Sandra Matteson, Mary Joule, David Lilienthal and Ronald Voelker. I am not a lawyer so understand that I did the best I could. I appreciate docstoc and have used this site to help me obtain sample doc's. WaterSound may be the most beautiful place on earth.
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR WALTON COUNTY, FLORIDA CIVIL DIVISION JOHN P. CARROLL, Plaintiff, v. WATERSOUND BEACH COMMUNITY ASSOCIATION, INC., Florida Corporation DAVID LILIENTHAL, individually and as Director, MARY JOULE, SANDRA MATTESON, RONALD VOELKER, JOHN DOE, JANE DOE, and OTHER UNKNOWN CONSPIRATORS Defendants. ____________________________________________/ COMPLAINT FOR EQUITABLE AND OTHER RELIEF 1. Plaintiff, John P. Carroll (“Carroll”), sues Defendants, WaterSound Case No.: 09CA002021 Beach Community Association, Inc. (“WaterSound”), David Lilienthal (“Lilienthal”), Mary Joule (“Joule”), Sandra Matteson (“Matteson”), Ronald Voelker (“Voelker”), John Doe (“John Doe”) and Jane Doe (“Jane Doe”) as follows: 2. Carroll is a Florida resident with his principal place of business and residence in Walton County, Florida. Carroll is a Florida licensed Building Contractor. Carroll owns and controls Chambers Street Builders, Inc. a Walton County, Florida Corporation. Carroll owns and controls J.M.B., L.L.C a Florida LLC. 3. WaterSound is a Florida Corporation with its place of business in Walton County, Florida. 4. Lilienthal is a Florida resident with his personal residence in Walton County, Florida, is a Realtor with his principle place of business in Walton County, Florida, is a salesperson for Dune Construction and Development, Inc. owned by his son in WaterSound and is a Director of WaterSound located in Walton County, Florida. 5. Joule resides in Walton County, Florida, describes herself as a Florida licensed Building Contractor and the actions that are the subject matter of this suit occurred in Walton County, Florida. 6. Matteson resides in Walton County, Florida, works in Walton County and the actions that are the subject matter of this suit occurred in Walton County, Florida. 7. Voelker resides in Walton County, Florida and the actions that are the subject matter of this suit occurred in Walton County, Florida. 8. John Doe and Jane Doe and other Unknown Conspirators have been included on knowledge and belief, Defendants conspired among themselves and with other non- party co-conspirators, as more particularly described below, to undermine and damage Carroll, as well as the businesses he has interests in. Accordingly, in the furtherance of this conspiracy or enterprise, the primary purpose being to impair and boycott the Plaintiff, to impair Chambers Street Builders, Inc. and to convert it’s business to their own pecuniary benefit and advantage and to impair and to convert J.M.B., L.L.C.’s business to their own pecuniary benefit and advantage, the act or omission of one Defendant co-conspirator while active in the concerted activity constitutes the act or omission of all other co-conspirators and vice versa. Not all participants in the conspiracy are known to the Plaintiff. For that reason, Plaintiff has designated John Doe and Jane Doe as representatives of other persons, unknown to Plaintiff at this time, who conspired with the other Defendants and non-party co-conspirators to accomplish the unlawful purposes of the conspiracy enterprise, as herein alleged. 9. Venue is proper in this Court because the real property that is the subject of this Complaint is located in Walton County, Florida, the Defendants reside or are located in Walton County, Florida and all actions forming the basis of this Complaint took place in Walton County, Florida. Defendants Interfere 10. Carroll was put on the approved builder list in 2002. The Chairman of the Design Review Board put Chambers Street Builders, Inc. (“CSB”) on the fully approved builder list in 2003 which was provided to all Owners and potential Owners. (Exhibit A) From 2002 through 2009 Carroll engaged in advertising, acquisition of Real Estate and assembling business arrangements in WaterColor, WaterSound, Windmark Beach, The Retreat and Rivercamps. CSB remained on the approved builder list continuously through April 2006. 11. At some point in about April 2006 CSB’s name and contact information were silently and covertly removed from the approved builder list. Neither CSB or Carroll were notified of this and there were no complaints or notices of any kind against CSB or Carroll. Any customer of CSB and Carroll inquiring was told that CSB was not approved to build. The Chairman of the Design Review Board (“DRB”) did not take this action. This had never occurred to any other contractor no matter how many examples of their repeated and evidenced poor quality of work in the community. 12. On January 19, 2007 the Chairman of the Design Review Board issued (3) written official notifications clarifying that CSB has in fact been awarded the highest level of approval to appear on the approved builder lists. (Exhibit B) 13. Two weeks later, on February 2, 2007, the St. Joe Company (“JOE”) engaged Carroll and CSB in contract talks whereby CSB would be granted a beneficial Builder Program in WaterSound. (Exhibit C) 14. Relying on these acts Carroll focused on delivering value to his customers, increased the advertising expenditures of CSB, targeted the JOE communities under the control of Matteson and developed millions of dollars in contracted and other potential business agreements. With the increasing success of Carroll’s business came renewed and increased efforts on the part of the Defendants to frustrate Carroll’s beneficial business arrangements. Without notice or knowledge to Carroll or CSB, CSB had its name again covertly removed from the approved builder list. This too was unreasonable, came without any complaints and defied all precedence in the history of the communities. 15. Carroll and CSB made a request for information of Matteson regarding the removal of CSB from the approved list. A meeting was set at which time Matteson told Carroll, “We cannot stop you from building on land you own, there will always be your Monte Hewett’s but you should be a team player or look to work elsewhere.” 16. Carroll and CSB asked Matteson for her opinion in writing and instead received a hastily prepared written commentary on a CSB project 7 months into construction in Watercolor. (Exhibit D) The commentary merely pointed out the items yet to complete on the home which was progressing at a normal rate for a home in Watercolor. The commentary listed no violations of any community standards or building codes and required no action on the part of Carroll or CSB. While the commentary was made to look as though it came from the DRB the commentary was actually made without the knowledge of the DRB. The residence was completed beautifully by CSB, blends seamlessly into the community and has been fully booked by vacation renters. (Exhibit E) 17. Upon receipt by Carroll of Matteson’s commentary Carroll set an appointment with the DRB and toured the project with Brian Stackable who was the highest authority in the HOA regarding all DRB issues. Brian noted no DRB issues, approved all of the construction in place and immediately evidenced these facts by issuing Carroll and CSB a letter stating so. (Exhibit F) 18. Matteson then had CSB re-listed on the fully approved contractor list with one major change. This time, CSB had it’s contact phone number changed to that of one of it’s competitors salesperson’s which diverted Carroll and CSB customers. (Exhibit G) 19. December 2007, Joule calls her contact within the Walton County Building Department to say that she may be able to slow up CSB’s progress on Lot 57, WaterSound Beach. She tells her contact to go over and look at the steel placement. Inspector DePaul covertly instructs Inspector Stosh to enter the job and take photographs of the work in progress especially the steel placement without notice to Carroll or CSB who was in the same community actively working. Carroll finds out about the secret inspection, questions Inspector Stosh in the days that follow and Stosh informs Carroll that Walton County Building Department Inspector DePaul got a call from a lady in WaterSound to slip over to the job and look around. Carroll phones Walton County Inspector DePaul, inquires what he knows of the actions and DePaul informs Carroll that he doesn’t know anything about it other than the fact that Stosh saw a curious steel condition while passing by and took it upon himself to photo same. Carroll informed DePaul that the steel cannot be seen without going inside the foundation let alone passing in a truck and that he already knew that DePaul set up Stosh to covertly inspect after talking to a woman from WaterSound. Carroll then told Inspector DePaul that he wants to know with specificity who reached out to him directly. Walton County Inspector DePaul refused to tell Carroll and said to finish the work on the piers and get it behind him. CSB completes the steel work, passes inspection and moves forward with construction. All of this covert activity is improper and illegal in Florida and a misuse of County employees. Accordingly, Carroll sends a written request for information and investigation to Walton County Building Official Bearden. (Exhibit H) 20. During this same period of August 2007 through December 10, 2007 CSB commences, completes, gains Certificate of Occupancy and conveys it’s site built model home in WaterSound. This proves to be the quickest construction period of any home ever constructed in the history of any of the JOE neighborhoods that Matteson, Joule and Lilienthal work in. The home proves to be successful and fully rented and enjoyed since that time. (Exhibit I) 21. April 29, 2008 Carroll receives word that Joule was seen with an unlicensed contractor, who was a friend of Joule’s, at CSB’s WaterSound West project. Carroll was informed that Joule and her friend cut an irrigation main and told CSB’s customer that the fence was painted poorly but, that if the customer would hold some of CSB’s payment, the unlicensed contractor, would be happy to perform any work that CSB’s customer wanted. Carroll was working at another project in WaterSound at the time but Joule did not notify Carroll that there was even a small question. Carroll sends out immediate written notice (Exhibit J) to try and stop this tortious interference and documents the sabotage. (Exhibit K) 22. At the same time, April 2008, three of CSB’s WaterSound customers in contact with Joule team up and stop paying for materials that CSB has delivered to their projects. The projects are special and the materials are project specific offering little value to CSB elsewhere. This continues a series of missed payments to CSB by the customers totaling more than $400,000.00. One of the customers tells Carroll, “ If you ever want to work in WaterSound again you will continue your work and I’ll get you paid back when everything is done.” This is outside the CSB contract and not in line with safe business practice so CSB gives each customer one more opportunity to get caught up. The customers don’t become current and CSB terminates the respective agreements. (Exhibit L) 23. During this same period Carroll learns that Joule is contacting any and all local suppliers and subcontractors to investigate CSB’s relationships with them. Joule tells them that CSB is about to go out of business. This is so far out of line with the law and Joule’s job description and authority that Carroll put Joule On Notice. (Exhibit M) 24. Joule works with the customers to assemble letters of dissatisfaction about CSB, creates retroactive Compliance Bulletin 15 and sends out the Bulletin to all WaterSound builders. Joule hides three names on the mailing list of WaterSound builders; Terry Muldoon, David Burke and Kevin Achatz. This serves to notify the three CSB customers that it is time to advance their strategies against Carroll and CSB. (Exhibit N) 25. Carroll and CSB endeavor to maintain revenues by also performing small services and maintenance for their past customers. CSB is awarded a job for Brian and Kim Mitchell on CSB’s previous model home and in an unprecedented move Matteson has WaterSound boycott Carroll and CSB and sends Carroll and CSB notice that it may not engage in any work of any kind within the community. (Exhibit O) This is above and beyond the approved builder list and strikes at the heart of Carroll’s Civil Rights. There is no provision in the authority of WaterSound to take this position and it is against the public policy of the State of Florida to attempt this act. Carroll notifies the DRB of this and they rescind their notice. 26. There is no way to determine the exact amount of substantial damage that all of these, and many, many other continuous tortious acts caused. What is most notable is that there are no other examples of these actions occurring during the history of the communities to anyone other than Carroll or CSB despite innumerable true violations of the community standards evidenced by work in place on other projects by other contractors and individuals. This speaks to the malice. False Statements and Misrepresentation 27. Continuing the deliberate and orchestrated acts of the civil conspirators the case moves squarely to Carroll’s business and property at Lot 24, Phase IV, WaterSound Beach, in Walton County, Florida. 28. Carroll, through his business, purchased the valuable real property which is situated in WaterSound’s most prominent and central location. This location would serve as the most advantageous for Carroll and his building business. 29. Carroll selected a fully approved Architectural firm who had above average experience levels in the community in comparison to it’s peers. The plans were prepared in accordance with the governing HOA guidelines, and yet were held in DRB review for over 12 months. 30. On December 28, 2007 the plans for the Lot 24 project gain final approval from the DRB. Carroll and CSB commence the permitting of the project and make provisions for efficient, rapid and orderly construction. 31. At the pre-construction site conference Joule, WaterSound Compliance Officer, recommends to Carroll that he not start the project and instead sell the land vacant. Carroll inquires why Joule would say such a thing. Joule only responds, “I wouldn’t start this house if I were you.” 32. Carroll shows Joule what looks like a road or asphalt pile just under the surface of the lot which appears to continue through the common areas adjacent Lot 24. This is of concern to Carroll for many reasons which include the fact that the DRB has just mandated that Carroll install over 46 different plants, grasses, trees and shrubs in the WaterSound Beach Community Association’s common area that is not a part of Lot 24. Joule instructs Carroll to just do it and forget it. 33. Carroll attends the next HOA Board of Directors (“BOD”) meeting, February 14, 2008, and enters photographs and testimony about what proved to be buried construction trash on Lot 24 and under the WaterSound Common Areas into the record. (Exhibit P) 34. The WaterSound Directors told Carroll that they take Notice of the claim, would investigate and find an immediate resolution. 35. CSB remediates the buried trash on Lot 24 but does not undertake to deal with the buried trash under the common area at that time. Carroll chooses that the landscape work that the WaterSound DRB wants Carroll to install in the common area can wait until the Directors finish their investigation and have the trash removed. 36. CSB installs the foundation per Joule’s benchmark at the Pre-Construction Site Conference. Carroll obtains an elevation survey showing the height of the top of the foundation in relation to the surrounding benchmarks and transmits same to the DRB per Joule’s instruction. (Exhibit Q) CSB is approved to continue construction. 37. CSB moves through the construction of the concrete superstructure at the Tower of the Lot 24 project quickly, efficiently and correctly. The location of Lot 24 and the prominence of the Tower proves to gain Carroll and CSB positive business good will and is much talked about by Carroll’s peers. 38. May 1, 2008 Matteson, formerly of JOE and currently working for CCMC serving WaterSound, notifies Carroll that Lot 24 is one of the most talked about homes in Watersound Beach. Further Matteson states that she has been personally and repeatedly asked if the Tower exceeds the height of 50 feet. (Exhibit R) 39. May 1, 2008 in a substantial attempt to head off any additional interference, misinformation and damage by the conspirators Carroll and CSB immediately retain Daniel Uhfelder, Esq. who immediately submits a formal written Florida Statute 720 request on behalf of Carroll and CSB to Matteson with a copy to Mary Rosenheim of JOE for the names of the individuals who are personally requesting information about the Tower at Lot 24. How are the requests being transmitted, verbally or written? We want copies of the requests for information immediately, in line with Florida Statute concerning HOA Records, and preservation of new requests for information so that they may be made available. Please direct future requests to Carroll so that he may respond. (Exhibit S) Matteson acknowledges receipt of the request for information, but refuses to turn over the documentation to Carroll. This continues Matteson’s chain of not honoring Carroll’s Florida Statute 720 requests for inspection of HOA documents and will prove to damage Carroll and his businesses. 40. May 9, 2008, in another unprecedented move, Matteson has Tracy Regan of the DRB contact Carroll and make a demand for a new set of signed and sealed structural drawings for Lot 24. Tracy Regan acknowledges that there are no aesthetic changes planned but that she needs new signed and sealed drawings for the DRB file. This request is aberrant and outside of the rules and mission of the DRB. It has never been asked of another owner. The governing documents explicitly state that the Board does not look to plans for structural adequacy, nor issues of the Building Code and accepts no responsibility for same. This special request of Carroll is abuse of power, intended to slow up CSB’s progress and serves no useful purpose in the furtherance of the DRB goals. (Exhibit T) 41. May 21, 2008 Tracy Regan now submits a letter to Carroll requesting new drawings of the residence at Lot 24 specifically to determine whether the height of the Tower will exceed 50’. Tracy is giving Carroll 10 days to comply. (Exhibit U) This is an additional aberrant special request by the DRB. There is no way to know via the drawings requested whether or not the building exceeds 50 feet. This special request of Carroll is abuse of power intended to slow CSB’s progress, is unprecedented within WaterSound, is intended to harm Carroll economically and serves no useful purpose in the furtherance of the DRB charter. 42. May 23, 2008 Carroll hand delivers sealed plans and survey for lot 24 to the Watersound Design Review Board care of Tracy Regan. This is just two days after Tracy Regan gave Carroll 10 days to supply the documents, occurs before the BOD meeting and completes her request. The documents indicate no change in elevation from the previously approved original set and survey already in the possession of the DRB. (Exhibit V) 43. Hours later on May 23, 2008, The Watersound Board of Directors meets for a regularly scheduled meeting. During the meeting under “other business” is a discussion of the fact that the Board has already taken the position that the Tower at lot 24 is constructed to tall. Lilienthal instructs Board attorney Gary Shipman (“Shipman”) to put Carroll On Notice that the Tower has been built in violation of the Walton County Ordinance and height restriction for Watersound. Further the Board notifies Carroll that he “must lower the tower construction” Further “If you do not undertake to make these alterations, we will seek an injunction in the Circuit Court in Walton County, Florida, in which you will be responsible for not only the cost of changing the tower structure, but we will seek penalty sanctions, attorney’s fees and costs.” Shipman says to notify the Walton County Building Official, Billy Bearden, of the violation and get his assistance. Shipman suggested that unless Carroll was granted a variance he would have to tear it down. Shipman would have the Board write a letter to the County opposing the variance. Lilienthal asked Shipman to write the letter. The Minutes of the meeting along with the paper trail of evidence preserve the corrupt nature of the conspirators sham acts. Despite Carroll’s daily contact with the HOA and, the proximity of Lot 24 just next door to the HOA office, at this time no one has notified Carroll that the HOA has already taken the legal position that the Tower is to tall and must be torn down. (Exhibit W) 44. May 28, 2008 Gary Shipman, Esq. sends a certified letter to Carroll at his address in Watercolor that contains (5) different address inaccuracies in the mailing address line and has to be diverted, despite Carroll seeing Lilienthal, Matteson and Joule regularly. (Exhibit X) Upon eventual receipt of the letter by Carroll Carroll finds that there is included an inaccurate specific purpose survey showing the height of the Tower at 48.53’. The attached survey, produced by Voelker, certified that the date of the field work at Lot 24 was May 16, 2008. There is only one choice that Lilienthal, Matteson, Joule and WaterSound make available to Carroll to satisfy their legal demand: “…be advised that you must lower the Tower.” 45. This certified document evidences and clarifies a chance encounter in which Carroll found Voelker on Lot 24 on or about May 16. Carroll asked Voelker at that time why he was at the property and Voelker stated, “I am looking for a control point so that I can complete a survey on a lot up the street.” Had Voelker not concealed his true purpose with Carroll Voelker could have taken the time a professional surveyor would need to conduct an authentic survey. Voelker knew from previous surveying on that street that there were in fact true control points that referenced elevation and should have been used to collect field datum and prepare the elevation survey. In addition, Voelker knew that all plans for structures in WaterSound were required to be accompanied by an elevation survey with vertical control points to be referenced for as built surveys. Further, Voelker knew that the DRB had copies of those surveys for Lot 24. Most simply, Carroll had a ladder on the Tower and Voelker had a tape measure. The ladder is visible in Voelker’s Survey. The Tower height could have been measured that instant by a Walton County 5th grade student to determine the correct measurement to within 1% accuracy. There was no legitimate reason for Voelker to deduce, prepare and certify the fraudulent survey. 46. After Carroll’s review of the survey he comes to find that the survey was ordered and conducted by May 16 which was one week in advance of the May 23, 2008 Board of Directors meeting. It became clear to Carroll that the Board orchestrated a sham discussion on record during the meeting to try and make their request look like something it was not and Carroll knew who to ask for proof. Carroll makes a written request of Matteson. (Exhibit Y) Matteson intentionally misinforms Carroll that the survey was ordered by the BOD as a result of the May 2008 meeting and directs Carroll to the Minutes which are being broadcast online and in writing. (Exhibit Z) 47. Carroll makes a written request of Voelker for information that will provide proof of the continued fraud and preserve the evidence. (Exhibit AA) Voelker refuses to turn over any of the evidence. 48. Carroll encounters numerous Realtors and peers of Carroll and Lilienthal who tell Carroll that they are shocked to hear that the concrete tower at Lot 24 is in violation of the WaterSound DRB, that they feel this is a catastrophic detriment to the project and want to know when and how the concrete Tower is going to be torn down. Some of the inquiries come from Carroll’s WaterSound Beach neighbors and other from Carroll’s professional peers who are not owners in WaterSound Beach. 49. Voelker realizes that his survey is going to be audited and he hastily assembles a revised survey that adjusts the height of the Tower down to match the surveys provided by Carroll to the DRB at the commencement of the project. (Exhibit BB) 50. Voelker’s revised survey contains several new discrepancies that cannot be explained by any reasonable professional. Most substantially evidenced is the fact that the revised survey contains a note that reads, ”Due to the converging inward nature of the structure, and the unavailability of access of the top of the structure, the height could be as low 45.4’ as or as high as 47.1’ “ This caveat is fraudulent as it’s margin is still outside the explanation of the previous survey wherein Voelker certified the height of the Tower at 48.53’. Additionally evidenced is the fact that the revised survey is certified as having occurred without any new field work. This would mean that Voelker has field datum in record from which he could certify the revised survey. This also means that he was not ordered to perform the survey as the result of the order of the May 23, 2008 BOD meeting as previously attested to by Matteson, Lilienthal and the Minutes. 51. Matteson and Lilienthal come to understand that their story does not match the Minutes and the Minutes are abruptly removed from the community bulletin board for the first time in the history of WaterSound. Since that time, both the Feb. 2008 and May 2008 BOD Meeting Minutes which reference Carroll and Lot 24 have disappeared, reappeared and currently have been completely removed from the community bulletin board. 52. On or about September 2008 Joule prepares photographs of the Lot 24 project and hastily draws redlines and elevations to indicate that the building is taller than it actually is. Joule inserts the evidence into the DRB file for Lot 24 without any notification or explanation to Carroll or CSB. (Exhibit CC) 53. September 12, 2008 Watersound Board of Director member Lilienthal notifies Carroll that he is still understanding the Tower of lot 24 to be constructed to tall and will require de-construction. Lilienthal and his associate Ann Mosley have told any Realtors who inquired that the Tower height is in violation, the concrete work has structural problems and must be dismantled by CSB and Carroll. 54. Carroll attempts to get a clear statement from the BOD that serves as a retraction to Gary Shipman’s letter of violation on the Tower height. A meeting is set for November 24, 2008 between Carroll, Matteson and Board of Director members Jack Luchese and Lilienthal. 55. Carroll appears for the November 24, 2008 meeting with Lilienthal, Matteson and Luchese. Lilienthal does not show up. The parties talk and it is agreed that Matteson is going to get a letter from Gary Shipman, Esq. that remedies the previous erroneous letter of Shipman for Tower Height Violation. The retraction letter does not come. 56. December 18, 2008 Carroll attends the December BOD meeting at the Gatehouse. Under compliance heading Jack Luchese initiated dialogue. Gary Shipman, Esq. read the original letter of violation aloud. Carroll disputed the Notice on a line by line basis. BOD legal counsel Shipman said on record that he did not know that a new survey (Voelker 6/08) was issued and requested a copy from Sandy Matteson in the presence of all in attendance. Matteson admits the revised survey proving compliance was issued over six months ago. Carroll asserted that the letter of violation was in the public domain by way of Realtors, that he could not correct the public opinion of violation and was being damaged economically. Shipman quickly decided and stated that WaterSound would not issue a retraction, that Carroll’s only remedy was to move forward with construction and submit a final survey upon completion that shows the Tower height. Carroll told him that was unfair, that no other WaterSound Beach owners are required to incur the expense and time required to comply with this special request, that this special request is above and beyond the requirements of the DRB and Covenants and that his violation pronouncement was inaccurate on its face with specificity regarding the measurements certified by Voelker’s original survey. Carroll repeated his clear demand to every member present that he wants a complete retraction of the height violation referenced in the violation letter. Carroll reminded the BOD that he submitted his original survey of foundation elevation in February as prescribed by the DRB and that it was approved for continued construction. Carroll asked Lilienthal why he was not present at the November meeting with Matteson, Alex Fambri and Jack Luchese. Lilienthal stated it was on advice of Counsel that he did not attend. The BOD said that the height of the existing structure still did not permit completion of the roof without being in violation of the County Height Ordinance. Carroll asked everyone present to explain the County height ordinance in order to verify their ignorance. None, including BOD Legal Counsel Gary Shipman, Esq., could give the correct Walton County Ordinance particulars: 5.00.06. Height Limitation, Exceptions, Exemptions, and Measurement Methodology for Building or Structure Height. (E) Methodology for Measurement for Building or Structure Height: Building or structure height in South or North Walton County is the vertical distance or measurement from the average elevation of the existing natural ground beneath the footprint of the building or structure to the highest point at the top of the building or structure or the highest point of the coping of a flat roof, the deck line of a mansard roof, or the mean height level between eaves and ridge for gable, hip, domed, curved, and gambrel roofs. Building or structure features such as chimney height as required by the Florida Building Code shall not be included in the methodology for measurement for building or structure height. This proved their ignorance and their motive. Carroll explained the County Height Ordinance of a structure is determined to be the average elevation calculated between the fascia and the ridge. Carroll confronted Lilienthal that he was the BOD who advised to contact Billy Bearden. Shipman, evidencing motive, forcefully made the pronouncement “I stopped you from building in a neighborhood before!” Matteson created the argument that the discrepancy in the surveys was caused by a poor calculation of avg. grade. Carroll pronounced that Matteson’s theory was fabricated. Voelker never told anyone that his error was based on grade elevation. Voelker calculated and certified grade the same in each survey. Carroll pronounced that Voelker certified that his discrepancy was in his calculation of the angle of the Tower. On record Carroll discussed with BOD Alan Riehl the benchmark method of establishing a Permanent Reference Monument (PRM) for elevation surveys. Carroll pronounced that PRM’s were referenced in both the DRB submittals and the Rare Earth survey provided by Carroll and approved by the DRB after completion of the foundation. The BOD had undertaken to force Carroll and CSB to act on an unlawful request which was negligent and a breach of fiduciary duty in it’s best light but, deliberate fraud and civil conspiracy in a light most favorable the truth. 57. December 19, 2008 Carroll issues the pre-suit Statutory Lible Prerequisite Letter in accordance with F.S. 770.01 to the B.O.D. (Exhibit DD) 58. Lilienthal, Matteson and Joule install Lilienthal’s son and, Carroll’s competitor, Robert David Lilienthal as WaterSound DRB member on March 6, 2009. 59. September 29, 2009, Carroll, facing monetary fines from the BOD for not completing construction on Lot 24, completes the final underground power, cable, phone, water and sewer conduit installations, prepares grade, orders the landscaping and undertakes the removal of the buried construction trash from the common areas the DRB is requiring Carroll install landscaping. At this point it has been 32 months since Carroll notified WaterSound community management and 19 months since Carroll put the BOD On Notice about the buried garbage and the BOD told Carroll they would remediate same. 60. Carroll then opens the ground in the Common Area for the landscaping work and removes buried pressure treated wood, bricks, concrete, asphalt, limerock crush base, pallet parts, grade stabilizers, rusted steel form work, and other construction trash in order to advance the project to its current stage of completion (Exhibit EE) COUNT I - TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP 61. restated here. 62. This is an action in law for tortious interference seeking damages that Carroll incorporates by reference paragraphs 1 through 55 as if fully exceed $15,000.00. 63. Carroll and his companies J.M.B., L.L.C. and Chambers Street Builders, Inc. had a business relationship with the Owners of property within WaterSound, Watercolor, Rivercamps and Windmark Beach. 64. relationships. 65. The Defendants intentionally and unjustifiably interfered with the The Defendants had knowledge of the dynamics and history of the relationships by slander per se, slander per quod and an unlawful coven. Defendants intentionally and unjustifiably interfered in the relationships by removing Chambers Street Builders, Inc. contact information from the approved builders list at random times without authorization and from time to time listing a competitor’s phone number as that of Chambers Street Builders, Inc. Defendants intentionally and unjustifiably interfered in the relationship of Carroll and his WaterSound neighbors by ordering and preparing a fraudulent survey, declaring Lot 24’s construction as being in violation of Walton County Height Ordinance requiring tearing down the concrete Tower, hiding Carroll’s authentic and correct survey, rushing unapproved Minutes into publication, placing fraudulent photographic evidence into the DRB file and broadcasting unapproved Minutes to Carroll’s peers and neighbors whom Carroll was actively negotiating the trade of property with. 66. As a direct and proximate result of WaterSound, Matteson, Lilienthal, Voelker and Joule’s tortious interference Carroll has suffered direct, incidental and consequential damages as a result of the breach of the relationship which is the last essential element for this type of claim as found in Florida’s Supreme Court: Gossard v. Adia Services, Inc., 723 So. 2d 182, 184 (Fla. 1998) and more specifically and locally Florida’s First District: Linafelt v. Beverly Enterprises-Florida, Inc., 745 So. 2d 386, 389 (Fla. 1st DCA 1999) Florida cases 67. WHEREFORE, Carroll demands judgment in his favor and against Defendants as follows: A. B. Awarding Carroll money damages against Defendants; Directing Defendants to immediately cease and desist from further actions that are against the public policy of the State of Florida and the United States Constitution; C. Compelling WaterSound to issue a complete, line by line retraction of it’s declaration of violation of Walton County’s Height Ordinance; D. Granting all further relief deemed appropriate by this Court. COUNT II - FRAUD 68. restated here. 69. 70. A. This is an action in law for fraud seeking damages that exceed $15,000.00. The Defendants made multiple false statements to Carroll as follows: Defendants assured Carroll that CSB was listed on their approved builder Carroll incorporates by reference paragraphs 1 through 55 as if fully list when in fact it was not included. B. Defendants insisted that they would remediate the buried trash in the common area adjacent Lot 24 where they are requiring Carroll to perform work when in fact they never intended to do so. C. Defendants insisted that they would not interfere with CSB work or business relationships when in fact the opposite was true. D. Defendants insisted that they ordered the survey from Voelker as a result of the May 23, 2008 BOD meeting when in fact the survey was ordered and performed at least 7 days before the meeting. E. Defendants informed Carroll that the elevation of construction was approved for continued construction when in fact they knew that they were going to act to stop Carroll and CSB and ultimately declare the work in violation of elevation. F. Defendants issued a special order to Carroll wherein if he would furnish new plans for the 24 project within 10 days that he could continue construction when in fact they already knew that they were preparing an impending violation notice which would serve to stop construction at Lot 24. G. Defendants declared the height of the Tower at Lot 24 in violation of the Walton County Height Ordinance without any survey, falsified or not, actually showing construction in violation of the Height Ordinance. H. Defendants told Carroll that they did not contact the Walton County Building Department to slow CSB’s progress when in fact they did. I. Defendants told Carroll that they did not attempt to interfere in Carroll’s business contracts and advantageous business relationships when in fact they did. J. Defendant Voelker told Carroll he was not performing a survey of Lot 24 when in fact he was. K. Defendant WaterSound informed Carroll that he could not sub-contract small jobs within the community when in fact they had no authority to say so. L. Defendant WaterSound informed Carroll that he must complete construction at Lot 24 and obtain an elevation survey of the Tower when in fact they had no authority to demand same. M. Defendant WaterSound acknowledged the contents of the DRB file included no additional information about the height of construction when in fact the file included falsified photographic evidence slipped into the file by Joule. O. Defendants told Carroll that they would issue a retraction letter to cure the alleged libel when in fact they had no intentions of doing so. P. Defendant Joule told Carroll that she had the experience required and was a Florida builder when in fact she is not and never has been. Q. Defendant Lilienthal told Carroll that he did not tell members of Carroll and CSB’s peer group and customer base that the 24 project had structural problems and code violations when in fact he did spread the misinformation. R. Defendant Voelker told Carroll that he had field datum to back up his certified survey when in fact he did not. S. Defendant Matteson told Carroll that CSB was removed from the WaterSound approved builder list by the DRB when in fact the DRB had no information about the act, the DRB approved of all CSB projects under construction and there were no documented reasons of any kind, whatsoever in WaterSound’s DRB file. T. Lilienthal assured the owners of WaterSound property including Carroll that he would discharge his BOD duties without conflict of interest when in fact he had no intentions of doing so. 71. false. 72. The Defendants made the untrue representations, amongst other covinous The Defendants had complete knowledge that their representations were acts, to induce Carroll’s reliance on the misrepresented facts. 73. Carroll’s reliance on the lies denied him the opportunity to treat the true issues, mitigate damage to his business and personal reputation and fully developing Lot 24. 74. As a direct and proximate cause of the Defendants fraud Carroll has suffered direct, incidental and consequential damages which is the 4th essential element of a claim for fraud in Florida according to Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985) and Connecticut General Life Ins. Co. v. Jones, 764 So. 2d 677, 682 (Fla 1st DCA 2000) amongst other Florida cases. 75. WHEREFORE, Carroll demands judgment in his favor and against the Defendants as follows: A. B. Awarding Carroll money damages against the Defendants; Directing Defendants to immediately confess and admit in writing, their lies and motives so Carroll can mitigate the continued damage to his and his companies reputations and to take all actions necessary and appropriate to complete that goal; C. Granting all further relief deemed appropriate by this Court. COUNT III – BREACH OF FIDUCIARY DUTY 76. restated here. 77. This is an action in law for breach of fiduciary duty seeking damages in Carroll incorporates by reference paragraphs 1 through 55 as if fully excess of $15,000.00. 78. Carroll and the Defendants share a relationship whereby Carroll reposes trust and confidence in the Defendants consistent with Florida Statute 720.303 (1). 79. The Defendants undertook that trust and assumed a duty to advise, counsel and protect Carroll also consistent with 720.303 (1). 80. The Defendants breached that fiduciary duty by deliberately orchestrating sham acts as described in 1 through 55. 81. Carroll suffered damage to his reputation and economically as a result of the Defendants breach of their duties. 82. These circumstances evidence the defendants liability to Carroll for a claim of this type in Florida as first found in Florida’s Supreme Court in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 420-421 (1927) and again more recently in Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002). 83. FOR THE REASONS STATED ABOVE, Carroll demands judgment in his favor and against the Defendants as follows: A. B. Awarding Carroll money damages against the Defendants; Directing Defendants to immediately act in a manner consistent with their fiduciary duty to Carroll from this time forward; C. Granting all further relief deemed appropriate by this Court. COUNT IV – LIBEL 84. restated here. 85. 86. This is an action in law for libel seeking damages in excess of $15,000.00. The Defendants made a false declaration when they declared Carroll and Carroll incorporates by reference paragraphs 1 through 55 as if fully CSB’s work in violation of the County Height Ordinance. They furthered the false statements when they declared that the concrete tower will be torn down. They abused process to give credibility to their falsehoods by threatening Circuit Court action against Carroll and CSB when in fact they never had any evidence, falsified or authentic, that proved a violation of the Walton County Height Ordinance. 87. The Defendants published the false statements by preparing a fake elevation survey, preparing fake photographic evidence and broadcasting fake BOD meeting minutes over the internet and assuring that the publications would make their way out from the protection of privileged communications and into the local public domain. Last, the Defendants published several fake approved builder lists showing Carroll and CSB’s removal from the list during times when CSB was fully authorized to appear on the lists. 88. The Defendants made the defamatory publications with the requisite intent of both negligence and malice. 89. Carroll suffered damage to his professional reputation and economically as a result of the Defendants false publications. 90. Florida Courts condemn and abhor these types of acts and when examined collectively these acts satisfy the essential elements needed by Carroll for a claim against the Defendants for libel. 91. FOR THE REASONS STATED ABOVE, Carroll demands judgment in his favor and against the Defendants as follows: A. B. Awarding Carroll money damages against the Defendants; Directing Defendants to issue the apology and retraction letter that Carroll served upon the BOD December 19, 2008 to satisfy Florida’s pre-suit Statutory Libel Prerequisite Letter in accordance with F.S. 770.01; C. Directing Defendants to publish the retraction in every size, scope and medium that the original defamatory publication was made; D. Granting all further relief deemed appropriate by this Court. COUNT V – NEGLIGENT RETENTION 92. restated here. 93. of $15,000.00. This is an action in law for negligent retention seeking damages in excess Carroll incorporates by reference paragraphs 1 through 55 as if fully 94. WaterSound became aware, or should have become aware, of problems with Joule that indicated her unfitness for the job of Construction Compliance Officer. 95. WaterSound owed a duty to Carroll and his companies to protect him from their Construction Compliance Officer’s ignorance of vertical elevation theories and construction processes. Further, WaterSound owed a duty to Carroll, his family and his companies to protect them from Matteson and Joules tortious acts and statements. 96. WaterSound breached it’s duty to Carroll, his family and his companies by failing to act to investigate, discharge or reassign both Joule and Matteson. 97. WaterSound’s breach proximately caused Carroll to suffer damage to his professional reputation, economically and his family’s civil right to the pursuit of happiness. 98. FOR THE REASONS STATED ABOVE, Carroll demands judgment in his favor and against the Defendants as follows: A. B. Awarding Carroll money damages against the Defendants; Directing WaterSound to reassign or discharge Matteson, Joule or any other employee working in WaterSound who would continue to harm Carroll, his family or his business; C. Granting all further relief deemed appropriate by this Court. COUNT VI – CIVIL CONSPIRACY 99. restated here. 100. This is an action in law for civil conspiracy seeking damages that exceed Carroll incorporates by reference paragraphs 1 through 55 as if fully $15,000.00. 101. WaterSound, Joule, Matteson, Lilienthal, Voelker, John and Jane Doe and other Unknown Co-Conspirators formed a conspiratorial coven. 102. The Defendants planned, engineered and executed a boycott of Carroll and his businesses along with a campaign of misinformation about Carroll’s personal and business fitness. 103. The Defendant conspirators committed several acts both covert and overt as fully enumerated in 1 through 55 in the pursuit of the conspiracy. 104. The conspirators possessed, by virtue of their association, a special power of coercion that an individual would not ordinarily possess. 105. Carroll, his family and his businesses suffered damage to their economics, professional reputation and civil rights afforded them by both the Florida and United States Constitution by the reach of the civil conspiracy. 106. WHEREFORE, Carroll demands judgment in his favor and against the Defendants as follows. A. B. Awarding John money damages against the Defendants; Directing the Defendants to immediately notify Carroll and this Court of the true identity of John Doe, Jane Doe and the other Co-Conspirators; C. coven; D. Granting all further relief deemed appropriate by this Court. COUNT VII – SLANDER 107. Carroll incorporates by reference paragraphs 1 through 55 as if fully Directing the Defendants to immediately cease and desist their unlawful restated here. 108. $15,000.00. 109. The Defendants made a false declaration when they declared Carroll and This is an action in law for slander seeking damages that exceed CSB’s work in violation of the County Height Ordinance. They furthered the false statements when they declared that the concrete tower will be torn down. They abused process to give credibility to their falsehoods by threatening Circuit Court action against Carroll and CSB when in fact they never had any evidence, falsified or authentic, that proved a violation of the Walton County Height Ordinance. 110. The Defendants orally published the false statements by preparing a fake elevation survey, preparing fake photographic evidence and broadcasting fake BOD meeting minutes over the internet and assuring that the publications would make their way out from the protection of privileged communications and into the local public domain when they told Debra Starr, Hillary Farnum and other Realtors who are Carroll’s peers but not WaterSound Owners. Last, the Defendants published several fake approved builder lists showing Carroll and CSB’s removal from the list during times when CSB was fully authorized to appear on the lists and then passing on their fabrications orally. 111. The Defendants made the defamatory publications and oral statements with the requisite intent of both negligence and malice. 112. Carroll suffered damage to his professional reputation and economically as a result of the Defendants false publications. 113. Our local Court condemns these acts which together constitute the four essential elements of slander as clarified and enumerated in Axelrod v. Califano, 357 So. 2d 1048, 1050 (Fla. 1st DCA 1978). 114. WHEREFORE, Carroll demands judgment in his favor and against the Defendants as follows. A. B. Awarding Carroll money damages against the Defendants; Directing the Defendants to immediately notify Carroll and this Court of the identity of all parties the defamatory statements were made to; C. Directing the Defendants to immediately orally retract their unlawful and defamatory statements; D. Granting all further relief deemed appropriate by this Court. COUNT VIII – NEGLIGENCE 115. restated here. 116. $15,000.00. 117. The Defendants had a duty to protect Carroll, his businesses and his This is an action in law for negligence seeking damages that exceed Carroll incorporates by reference paragraphs 1 through 55 as if fully family from harm when they assumed the position afforded them by the WaterSound Declarations of Covenants. 118. The Defendants breached their duties as stated in 1 through 55 when, amongst other acts, they failed Carroll and elementary mathematics in concluding the Tower height incorrectly by margins that defy truth and then failing to read and understand Walton County Height Ordinance 5.00.06 at: Building or structure height in South or North Walton County is the vertical distance or measurement from the average elevation of the existing natural ground beneath the footprint of the building or structure to the highest point at the top of the building or structure or the highest point of the coping of a flat roof, the deck line of a mansard roof, or the mean height level between eaves and ridge for gable, hip, domed, curved, and gambrel roofs. and finally, all of this being rounded out by their rush to write all of this up as a condemnation of Carroll’s competence when it was their rudimentary mistake. 119. The Defendants breach was the proximate cause of damage to Carroll, his family and his businesses. 120. Carroll suffered damage to his professional reputation and economically as a result of the Defendants false publications. 121. Just as seen in Jenkins v. W.L. Roberts, Inc., 851 So.2d 781 (Fla. 1st DCA 2003), Carroll is entitled to maintain a cause of action against the Defendants for negligence because the totality of the facts match the essential elements of his claim. 122. WHEREFORE, Carroll demands judgment in his favor and against the Defendants as follows. A. B. Awarding Carroll money damages against the Defendants; Directing the Defendants to renew their studies in addition and subtraction if they wish to exercise control over vertical datum; C. Granting all further relief deemed appropriate by this Court. COUNT IX – INVASION OF PRIVACY BY FALSE LIGHT 123. restated here. 124. This is an action in law for invasion of privacy by false light seeking Carroll incorporates by reference paragraphs 1 through 55 as if fully damages that exceed $15,000.00. 125. The Defendants through their association with each other gained a position of coercion over Carroll and his businesses that they would not have under normal conditions. 126. The Defendants prepared a likeness of Carroll’s real property which put the value of the improvements to the real property in a false and detrimental light. 127. Carroll suffered damage to his professional reputation and economically and invasion of his privacy as a result of the Defendants projected false light. 128. WHEREFORE, Carroll demands judgment in his favor and against the Defendants as follows. A. Awarding Carroll money damages against the Defendants; B. Granting all further relief deemed appropriate by this Court. COUNT X – SLANDER OF TITLE 129. restated here. 130. $15,000.00. 131. Carroll incorporates by reference paragraphs 1 through 55 as if fully This is an action in law for slander of title seeking damages that exceed On September 1, 2009, just days before Carroll’s planned finance closing for Lot 24, Matteson and WaterSound communicated to Carroll’s Title Company a fraudulent assessment certificate showing the amount necessary to clear Title was currently $9,366.14 when it was actually several thousand dollars less and subject to additional set offs. 132. On September 23, 2009 Matteson admitted and testified to the inflated assessment in County Court. 133. These three facts were intended to impair Carroll’s ability to close his loan and were the proximate cause of damages to Carroll and his business. 134. WHEREFORE, Carroll demands judgment in his favor and against the Defendants as follows. A. Awarding Carroll money damages against the Defendants; B. Granting all further relief deemed appropriate by this Court. _____________________________ John P. Carroll Box 613524 WaterSound, FL 32461 Tel: (850)231-5616 Fax: (850)622-5618 Dated: October 9, 2009
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