VIEWS: 245 PAGES: 11 CATEGORY: Court & Cases POSTED ON: 3/21/2010
This is an example of my Summary Judgment on a Declaratory Action. I'm not a lawyer, so read it as such. It's the best I could do to try and get a fair shake against these folks. WaterSound Beach is a naturally beautiful place, but I believe its Board of Directors favor the in crowd. I believe that when folks team up like this they are doing a great disrespect to my ancestors who fought for this country and its Constitution. This is something I will walk in fire for.
I THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT I A D FOR WALTO COU TY, FLORIDA CIVIL DIVISIO JOH P. CARROLL, Plaintiff, Case o.: 09CA002021 v. WATERSOU D BEACH COMMU ITY ASSOCIATIO , I C., Florida Corporation WATERCOLOR COMMU ITY ASSOCIATIO , I C., DAVID LILIE THAL, individually and as Director, MARY JOULE, SA DRA MATTESO , RO ALD VOELKER, JOH DOE, JA E DOE, and OTHER U K OW CO SPIRATORS Defendants. ____________________________________________/ PLAI TIFF’S MOTIO FOR SUMMARY JUDGEME T COMES NOW Plaintiff JOHN P. CARROLL (hereinafter “Plaintiff”), pursuant to Florida Rules of Civil Procedure 1.510(a), and moves for Summary Judgment, and as grounds therefore states: 1. This is an action brought pursuant Chapter 86, Florida Statutes, for judgment declaring that Defendants WaterSound Beach Community Association, Inc. (WaterSound), Sandra Matteson (Matteson), David Lilienthal (Lilienthal) and Mary Joule’s (Joule) benefited assessment, related to construction time, is improper, invalid and non-lienable against the individual lots within WaterSound. 2. Plaintiff is Florida Licensed Building Contractor RB0066902 and the sole personal qualifying agent for Chambers Street Builders, Inc. QB46853 who is the permit holder for the construction at Lot 24, Phase IV, WaterSound Beach (Lot 24). 1 3. Plaintiff held and holds equitable title to Lot 24 and rights in his individual capacity, Chambers Street Builders, Inc. corporate capacity and single member J.M.B., LLC capacity at all times relevant to this action. 4. Defendant WaterSound is a Florida not for profit corporation and homeowners association whose Declaration of Covenants, Conditions and Restrictions (CC&R) have been recorded in Walton County, Florida and encumber Lot 24. 5. Defendant Matteson served and serves as vice president and general manager for WaterSound. 6. Defendant Lilienthal served and serves as a Board of Director for WaterSound. 7. Defendant Joule served and serves as construction compliance officer for WaterSound. 8. As of the filing of this motion, none of the Defendants have filed an answer in this declaratory action. FACTS 9. Venue is proper in this Court as venue has previously been conferred to 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, Florida. 10. WaterSound is a community located within Walton County which is encumbered by the CC&R’s first recorded in the Official Records of Walton County on September 10, 2001. (Exhibit A) Those original CC&R’s contain the provision at issue 2 which can be found at Section 8.5 which reads: 8.5 Benefited Assessments The Association may levy Benefited Assessments against one or more particular Lots as follows: (a) to cover the costs, including overhead and administrative costs, of providing services which an Owner requests pursuant to any menu of special services which the Association may offer (which might include the items identified in Section 7.8) or which the Association otherwise provides to less than all Owners in accordance with this Declaration or any Supplemental Declaration. Benefited Assessments for special services may be levied in advance of the provision of the requested service; and (b) to cover costs incurred in bringing a Lot into compliance with the Governing Documents, or costs incurred as a consequence of the conduct of the Owner or occupants of the Lot, their agents, contractors, employees, licensees, invitees, or guests; provided, the Board shall give the Lot Owner prior written notice and an opportunity for a hearing, in accordance with the By-Laws, before levying any Benefited Assessment under this subsection. 11. WaterSound has recorded additional Covenants, Conditions and Restrictions into the Official Records of Walton County; however none mention this benefitted assessment or any similar assessment to the assessment that is the subject of this declaratory action. 12. WaterSound created this new class of “monthly benefited assessment” without following the Condition’s notice, vote or right to hearing. The CC&R’s include “Bylaws” which were originally annexed and recorded as Exhibit E. (see Exhibit A) 13. The “Bylaws” state in pertinent part: 3.24. Enforcement. The Association may impose sanctions for any violation of the Governing Documents. To the extent the Declaration or Florida law requires an opportunity for a hearing, the Board shall comply with the following procedures prior to imposition of sanctions: (a) otice. The Board or its delegate shall serve the alleged violator with written notice describing (i) the nature of the alleged violation; (ii) the proposed sanction to be imposed; (iii) a period of not less than 15 days within which the alleged violator may present a written request for a hearing to the Board; and (iv) a statement that the proposed sanction shall be imposed as contained in the notice unless the alleged violator challenges the violation within the time period specified in the notice. The Board or Covenants Committee may suspend any proposed sanction if the violation is cured, or if a diligent effort is made to cure, within the period during which a hearing may be requested. Such suspension shall not constitute a waiver of the right to sanction future violations of the same or other provisions and rules by any Person. 3 If a timely request for a hearing is not made, the sanction stated in the notice may be imposed without the necessity of a hearing; provided, the Association may not impose a fine or suspend Common Area use rights for any violation other than a failure to pay assessments, unless the Covenants Committee, by a majority vote, first approves the proposed fine or suspension. 14. 3.24 (a) provides, in pertinent part, that the Notice must: 1) Describe the process for a hearing. 2) The sanction shall be imposed unless the alleged violator elects the hearing. 3) The Covenants Committee must first approve the fine by a majority vote. 15. The Bylaws specifically describe the Covenants Committee: 5.2 Covenants Committee. The Board shall appoint a Covenants Committee consisting of at least three members. The Covenants Committee members shall be Members of the Association who are not directors, officers, or employees of the Association or the spouse, parent, child, brother, or sister of a director, officer, or employee. Acting in accordance with the provisions of the Declaration, these By-Laws, and any Board resolutions, the Covenants Committee shall be the Association’s hearing tribunal and shall conduct all hearings held pursuant to section 3.24. The Board may not impose a fine without a majority vote of the Covenants Committee. 16. WaterSound has no Covenants Committee. What is most legally striking is the fact that the Covenants Committee cannot be staffed by Directors, Officers or Employees of the Association or the spouse, parent, child, brother or sister of a Director, Officer or Employee. 17. In the instant case, the WaterSound Board of Directors sent a notice dated July 29, 2009 stating that “On June 2, 2006, the WaterSound Beach Homeowner’s Association passed a resolution that allows the Homeowner’s Association to collect a $1,000 fine per month after the home has been under construction for 16 months. Beginning July 31, 2009 you will be assessed $1,000 for the month of July and will continue to be assessed thereafter at the end of the month on a monthly basis…” (Exhibit 4 B) 18. The June 2, 2006 Board of Directors Meeting was held without setting forth the Notice that a new assessment would be considered. Additionally, the only notice of the meeting was posted on the property, rather than sending notice to the members which is required in order to effectuate new assessments. (Exhibit C, see Proof of otice) 19. During the June 2006 Meeting, under Completion Dates for Single Family Home Construction, a motion was made for a 16 month completion of a single family home with a $1,000/month penalty for every month over 16 months. To waive the fee, the homeowner’s plans and intent must go before the same board for review. 20. During the same meeting, Lot 5, Phase I was approved for a 20 month build-out time by Breaux Construction. That home actually commenced construction on March 23, 2006, and was completed April 7, 2009, more than 36 months later. No fines or benefitted assessments were levied. (Exhibit D) 21. Peter DeFranco commenced his home with Artisan Builders and completed same over 24 months later. No fines or benefitted assessments were levied. (Exhibit E) 22. Elizabeth Whitehead commenced her home with BRW Builders and completed same over 20 months later. No fines or benefitted assessments were levied. (Exhibit F) 23. Brad Zeitlin commenced his home with an unlicensed contractor, Jon LaPlante, and completed same over 23 months later. No fines or benefitted assessments were levied. (Exhibit G) 5 24. David White commenced his home with Consolidated Builders and completed same over 23 months later. No fines or benefitted assessments were levied. (Exhibit H) 25. Beaches 11 commenced their home with Grand Floridian and completed same over 21 months later. No fines or benefitted assessments were levied. (Exhibit I) 26. Ocean Mist LLC commenced their home with David Lilienthal and completed same over 21 months later. No fines or benefitted assessments were levied. (Exhibit J) 27. Atlantic Realty commenced their home with an unknown contractor and completed same over 18 months later. No fines or benefitted assessments were levied. (Exhibit K) 28. Lucca Properties, LLC commenced their home with Consolidated Builders and completed same over 17 months later. No fines or benefitted assessments were levied. (Exhibit L) 29. Daniel Mickelson commenced his home with Daniel Cole and completed same over 16 months later. No fines or benefitted assessments were levied. (Exhibit M) 30. The St. Joe Paper Company commenced their home with David Franklin and completed same over 29 months later. No fines or benefitted assessments were levied. (Exhibit N) 31. The St. Joe Paper Company commenced their home with David Franklin and completed same over 28 months later. No fines or benefitted assessments were levied. (Exhibit O) 32. The St. Joe Paper Company commenced their home with Pat Groeniger 6 and completed same over 15 months later. No fines or benefitted assessments were levied. (Exhibit P) 33. The St. Joe Paper Company commenced their home with David Franklin and completed same over 24 months later. No fines or benefitted assessments were levied. (Exhibit Q) 34. Matt Savoie commenced his home with Davis Dunn and completed same over 21 months later. No fines or benefitted assessments were levied. (Exhibit R) 35. Emerald Coast Homes commenced their own home and completed same over 40 months later. No fines or benefitted assessments were levied. (Exhibit S) 36. Billy Geffon commenced his home with Ray Jackson and completed same over 23 months later. No fines or benefitted assessments were levied. (Exhibit T) 37. Board of Director Jack Luchese’s home was built by Monte Hewett in over 20 months. No fines or benefitted assessments were levied. (Exhibit U) 38. Board of Director David Lilienthal’s son built the C & A Exploration residence in over 22 months. No fines or benefitted assessments were levied. (Exhibit V) 39. Plaintiff Carroll commenced his home and was notified by the Board of Directors 4 months later that the building must be torn down. The Board “purportedly” stopped construction because the building was built to tall. (Exhibit W) 40. 16 months after Plaintiff’s commencement, the Board of Directors began levying “benefitted assessments” “purportedly” because construction was not complete. To date, the Board of Directors has levied $10,000.00 in “benefitted assessments” against Plaintiff. (Exhibit X) 7 41. Plaintiff attempted to dispute the decision of the Board of Directors, and immediately sought information from WaterSound accordingly. (Exhibit Y) 42. Clearly the Board of Directors has engaged in selective enforcement of a policy that is unclear. (Exhibit Y) 43. This issue has also presented itself in Walton County Court. Judge Green heard testimony from WaterSound on this compliance issue. Plaintiff claimed an interest in a $5,000.00 deposit. During direct examination Plaintiff asked Tracy Regan, WaterSound DRB Coordinator, “Q: What happened to that $5,000 deposit when the property was sold off? A: That house was not finished or constructed in a timely manner, and therefore their deposit was forfeited. They lost their entire deposit.” (Exhibit Z-1) 44. What neither Plaintiff or Judge Green knew at that time, was that WaterSound’s Tracy Regan would later return to the office and prepare an internal document instructing the accounting department to move that $5,000 from the deposit escrow account over to income account 0439. (Exhibit Z2) 45. This is a perfect example of the arbitrary nature of WaterSound’s management with regard to this “benefitted assessment” issue at bar. That home was transferred by Plaintiff’s customers 4 months prior to the start of the enforcement of this “benefitted assessment”. It was not listed for the “benefitted assessment” and was never authorized to be assessed. (Exhibit Z3) 46. Further, the “Pre-Construction Check List” signed by Plaintiff on September 10, 2007, contracted a (1) time, $500 fine if construction was not complete within 15 months. (Exhibit Z4) 8 47. Finally, on that same residence, 3 months prior to WaterSound’s first “benefitted assessment” for construction over 15 months, Davis Dunn placed $2,500 with Tracy Regan and WaterSound for construction compliance. (Exhibit Z5) ARGUME T 48. Plaintiff is entitled to Summary Judgment, because there is no genuine issue of material fact that Section 8.5 of the CC&R’s defines benefited assessments clearly differently from the “benefited assessment” WaterSound wishes to exert against its members: (b) to cover costs incurred in bringing a Lot into compliance with the Governing Documents, or costs incurred as a consequence of the conduct of the Owner or occupants of the Lot, their agents, contractors, employees, licensees, invitees, or guests; provided, the Board shall give the Lot Owner prior written notice and an opportunity for a hearing, in accordance with the By-Laws, before levying any Benefited Assessment under this subsection. 49. The terms of a Declaration of Covenants, Conditions and Restrictions constitute expressions of an agreement, and are properly construed according to principles of contract construction. Providence Square Association, Inc., v. Biancardi, 507 So. 2d 1366, 1370 (Fla. 1987). Under basic principles of contract construction, a party is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract. Medical Center Health Plan v. Brick, 572 So. 2d 548, 552 (Fla. 1DCA 1990). 50. Section 6.5 of the CC&R’s is titled “Amendment” and reads: (c) Validity and Effective Date of Amendments. Amendments to these By-Laws shall become effective upon recordation unless a later effective date is specified therein. Any procedural challenge to an amendment must be made within six months of its recordation, or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of the By-Laws. 51. It is undisputed that there have been no recorded amendments made to the 9 CC&R’s which would legitimize the “benefited assessment” at issue. 52. Plaintiff also contends that WaterSound’s enforcement action should be barred by the doctrine of selective enforcement. Selective enforcement is based on the premise of discretionary treatment and arbitrary and capricious enforcement of a rule or regulation. Chattel Shipping and Investment Co. v. Brickell Place Condominium Association, Inc. 481 So. 2d 29, 30 (Fla. 3d DCA 1985)(citing the Florida Supreme Court’s opinion in White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346, 352 (Fla. 1979)). Selected enforcement occurs where the Board of an Association is shown to have failed to enforce the condominium documents in other similar violations, and where the unequal enforcement of the rules warrants the conclusion that the board’s actions are discriminatory, unfair, or unequal and prohibit the association from enforcing the restriction in the present dispute. Oceanside Plaza Condominium Association, Inc. v. Salussolia, Arb. Case No. 96-0384. Paragraphs 20 through 39 are material. 53. To bring Lot 24 into “compliance” would mean that WaterSound is building the residence at Lot 24. It is undisputed that WaterSound has not attempted to bring Lot 24 into compliance by completing the construction at Lot 24. 54. In the CC&R’s, “Benefited” assessments can only be levied to cover costs incurred; they are not coercive or punitive in nature. 55. Over Plaintiff’s objections, WaterSound continues to encumber Lot 24 with expanding “monthly benefited assessments” which have now reached $10,000.00. 56. In conclusion, under the plain language of the CC&R’s WaterSound is not entitled to assess perpetual “benefitted assessments” such as these against Lot 24 or any other property within the community. 10 WHEREFORE, Plaintiff requests this Court grant Summary Judgment in its favor and issue an order declaring that: 57. WaterSound does not have the legal right to assess the “monthly benefited assessment” described herein. 58. In accordance with F.S. 86.061, allow Plaintiff to request supplemental relief, by Motion, after the Court grants Declaratory Judgement. 59. Grant such other further relief as may be just and proper. _____________________________ John P. Carroll Box 613524 WaterSound, FL 32461 Tel: (850)231-5616 Fax: (850)622-5618 AAbsolute@aol.com 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 Defendants, by regular email and regular mail this 20th day of March, 2010. _____________________________ John P. Carroll Box 613524 WaterSound, FL 32461 Tel: (850)231-5616 Fax: (850)622-5618 AAbsolute@aol.com 11
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