WaterSound Declaratory Judgement by ChambersStreet


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									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. ____________________________________________/ PLAINTIFF’S MOTION AND/OR PETITION FOR DECLARATORY JUDGEMENT Plaintiff, JOHN CARROLL (hereinafter “Plaintiff”), pursuant to Florida Statute 86.011, requests this Court determine the construction, right, procedure, lien rights, enforceability terms and validity of Defendants’ WaterSound Beach Community Association, Inc. (hereinafter “WaterSound”) and Board of Director David Lilienthal’s (hereinafter “Lilienthal”) enactment of the “special benefited assessment” fabricated by them which attempts to coerce special benefited assessments from certain individual lot owners within the WaterSound Beach community. 1. Venue is proper in this Court as venue has previously been conferred to Case No.: 09CA002021

this Court in this action, all parties to this action are located in this jurisdiction, the documents to be construed have been recorded in the Walton County Official Records, the property that is the subject matter of this action is located in Walton County and the actions that are the subject matter of this suit occurred in Walton County. 2. WaterSound is a community located within Walton County which is

encumbered by Declarations of Covenants, Conditions and Restrictions (hereinafter

“Conditions”) first recorded in the Official Records of Walton County on September 10, 2001. (Exhibit A) 3. WaterSound has recorded additional Covenants, Conditions and

Restrictions into the Official Records of Walton County, however none mention the assessment or any similar assessment to the assessment that is the subject of this declaratory action. 4. At some point between the period of September 10, 2001 and March 26,

2009 WaterSound enacted a new “monthly benefited assessment” which purports to award WaterSound the authority to assess, lien and collect unexhaustable “monthly benefited assessments” against individual lots, owners, past owners, future owners or builders. (Exhibit B) 5. WaterSound created this new class of “monthly benefited assessment”

without following the Condition’s notice, vote or right to hearing procedures. There is no provision in the Conditions for the creation of a “special benefited assessment”. If this “monthly benefited assessment” is actually a special assessment, it’s genesis and authority would be derived from Article 8.4 which reads;


If the “monthly benefited assessment” is actually a benefited assessment, it’s birth and authority would be controlled by Article 8.5 which plainly reads;


The WaterSound Architectural Review Board (hereinafter “ARB”)

substituted the Condition’s notice requirements, voting regulations and hearing rights of members with an e-mail notice apparently sent to Builders and Architects intended to notify all homeowners of the new assessment. (Exhibit C) This e-mail notice of a newly created Compliance Bulletin #16 does not meet the notice requirements, voting rights or opportunity for a hearing before levying any assessments as called out in the Conditions. It’s unclear how the ARB finds it’s posture of authority to undertake enforcement and notification. They have no such authority when reading the Conditions. The ARB’s venue might be “Design Guidelines”, but even then, Lot 24 would be unaffected by Compliance Bulletin #16 because Lot 24 commenced prior to March 26, 2009. At Article 4.3 (A) the Condition’s attempt to clarify priority:



In the Conditions, “Special” assessments can only be levied to cover

expenses incurred against all owners; they are not coercive or punitive in nature. 8. In the Condition’s, “Benefited” assessments can only be levied to cover

costs incurred; they are not coercive or punitive in nature. 9. Plaintiff has notified WaterSound in writing that he has examined all

conditions leading to the issuance of assessments against Lot 24, WaterSound Beach. Plaintiff protests WaterSound’s decision to commence assessment and enforcement. (Exhibit D) 10. On June 18, 2009 WaterSound decided to commence a new policy of

assessment and enforcement against it’s members without following the notice, voting and hearing rights afforded members under the Conditions. (Exhibit E) 11. On September 1, 2009 WaterSound transmitted a “Certificate of

Assessment” to Plaintiff’s title company which certified that title to Lot 24 would not be cleared without payment and release of $2,000.00 in “Benefited Assessments for incomplete construction”. This was the eve of a sensitive, planned and multi-party refinance closing in which time was of essence. (Exhibit F) 12. Over Plaintiff’s objections, WaterSound continues to encumber Lot 24

with expanding “monthly benefited assessments” which have now reached $7,000.00. DECLARATORY JUDGEMENT 13. Plaintiff repeats and realleges each and every allegation contained in


Paragraphs 1 through 12 as if fully set forth herein. 14. An actual controversy exists between Plaintiff and WaterSound as to

whether WaterSound is entitled to assess, express liens and attempt to enforce collection of the “monthly benefited assessments” described herein. 15. To protect it’s rights and interests, Plaintiff requires a Declaration that

WaterSound does not have the authority to assess, express liens or attempt to enforce collection of the “monthly benefited assessment” described herein. WHEREFORE, Plaintiff requests this Court take jurisdiction over this matter and enter judgement as follows: 16. That this Court determine and declare that WaterSound does not have the

legal right to assess the “monthly benefited assessment” described herein. 17. In accordance with F.S. 86.061, allow Plaintiff to request supplemental

relief, by Motion, if the Court grants Declaratory Judgement. 18. Grant such other further relief as may be just and proper.

I HEREBY CERTIFY that a copy of the foregoing has been furnished to CHRISTOPHER L. GEORGE, ESQ. PO Box 1034, 56 Saint Joseph St., Mobile, AL. 36633-1034, attorney for WaterSound and Lilienthal, by regular mail this 29th day of December, 2009.

_____________________________ John P. Carroll Box 613524 WaterSound, FL 32461 Tel: (850)231-5616 Fax: (850)622-5618 Dated: December 29, 2009


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