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-SECRETED INSPECTIONS Plaintiff, JOHN CARROLL (“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. (“WaterSound”), Board of Director David Lilienthal (“Lilienthal”), Mary Joule (“Joule”), Ronald Voelker ( “Voelker“) and Sandra Matteson’s (“Matteson”) acts of retaining and conducting an inspection of the construction at Lot 24, Phase IV WaterSound Beach without prior Notice to Plaintiff. 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 Right to Notice of Design or Construction Claims provision or any similar provision that is the subject of this declaratory action. 4. At some point prior to May 16, 2008, an unknown party involved with
WaterSound ordered an inspection of the construction at Lot 24 from Voelker who entered upon Lot 24, conducted an inspection and produced a Special Purpose Survey which purported to certify the height of the construction improvements thereon. (Exhibit B) 5. The act of ordering and conducting such an inspection is controlled by the
Condition’s Articles 10.7 and 10.8 which read in their entirety; 10.7. Easement to Inspect and Right to Correct.
Declarant reserves for itself and others it may designate the right, but not the obligation, to inspect, monitor, test, redesign, and correct any structure, improvement, or condition on any portion of WaterSound, including Lots, and a nonexclusive easement of access throughout the Community to the extent reasonably necessary to exercise such right. Declarant’s rights and easement in this regard shall not in any way assign or diminish an Owner’s responsibility for the maintenance and care of his or her Lot.
Except in an emergency, entry onto a Lot shall be only after reasonable notice to the Owner and no entry into a dwelling or other structure on a Lot shall be permitted without the Owner’s consent, which consent shall not unreasonably be withheld, conditioned, or delayed. The failure or refusal to permit reasonable access to the Lot for the purposes contemplated under this paragraph shall excuse Declarant or its designee from responsibility for repairs or damages relating to defective workmanship or materials. The Person exercising this easement shall promptly repair, and pay for, any resulting damage. (Emphasis added) 10.8 Right to Notice of Design or Construction Claims.
No Person shall retain an expert for the purpose of inspecting the design or construction of any structures or improvements within WaterSound in connection with or in anticipation of any potential or pending claim, demand, or litigation involving such design or construction unless Declarant and any Builder involved in the design or construction have been first notified in writing and given an opportunity to meet with the property Owner and conduct an inspection. 6. 7. 8. 9. 10. Plaintiff is and was the Owner and the Builder of Lot 24. Plaintiff was given no notice that the inspection was ordered. Plaintiff was given no notice that Voelker would be entering upon Lot 24. Plaintiff did not give consent to allow Voelker to enter upon Lot 24. Voelker and possible others entered into the structure to perform the
inspection or testing without Plaintiff’s consent which is strictly prohibited. 11. 12. Plaintiff encountered Voelker at the corner of Lot 24 on May 16, 2008. May 16, 2008, Plaintiff asked Voelker what he was doing at the Southwest
corner of Lot 24. Voelker intentionally misled Plaintiff by stating that he was conducting a survey several Lots away and was looking for his reference point. 13. Voelker’s Special Purpose Survey was issued to WaterSound and other
unknown parties who used the Survey to declare Plaintiff in violation of WaterSound and Walton County height regulations. (Exhibit C)
DECLARATORY JUDGEMENT 14. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 1 through 12 as if fully set forth herein. 15. An actual controversy exists between Plaintiff and WaterSound as to
whether WaterSound is entitled to enter upon Lots within WaterSound, or instruct others to do so, as described herein. 16. To protect its rights and interests, Plaintiff requires a Declaration that
WaterSound does not have the authority to commit the acts described herein. WHEREFORE, Plaintiff requests this Court take jurisdiction over this matter and enter judgement as follows: 17. That this Court determine and declare that WaterSound does not have the
legal right or authority to enter upon Lots within WaterSound without following the Condition’s in strict conformance. 18. In accordance with F.S. 86.061, allow Plaintiff to request supplemental
relief, by Motion, if the Court grants Declaratory Judgement. 19. 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. and Mark Davis, Esq. by regular mail this 14th day of January, 2010.
_____________________________ John P. Carroll Box 613524 WaterSound, FL 32461 Tel: (850)231-5616 Fax: (850)622-5618 Dated: January 13, 2010