Appellants Initial Brief to Florida's 1st District Court of Appeal
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Transcript of Appellants Initial Brief to Florida's 1st District Court of Appeal
IN THE FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
JOHN P. CARROLL,
Plaintiff/Appellant,
v. CASE NO.: 1D10-3850
L.T. CASE: 2009 CA 002021
WATERSOUND BEACH COMMUNITY
ASSOCIATION, INC., WATERCOLOR
COMMUNITY ASSOCIATION, INC.,
SANDRA MATTESON, DAVID LILIENTHAL,
RONALD VOELKER, MARY JOULE,
JOHN DOE AND JANE DOE,
Defendants/Appellees.
______________________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT,
IN AND FOR WALTON COUNTY, FLORIDA
CASE NUMBER 2009 CA 002021
___________________________________________________________________
APPELLA�T'S I�ITIAL BRIEF
___________________________________________________________________
John P. Carroll, Pro Se
Box 613524
WaterSound, FL 32461
Telephone 850-231-5616
Facsimile 850-622-5618
E-Copy Received Jul 29, 2010 8:56 AM
TABLE OF CO�TE�TS
TABLE OF
CONTENTS................................................................................................................i
TABLE OF
AUTHORITIES.........................................................................................................ii
PRELIMINARY
STATEMENT............................................................................................................1
STATEMENT OF THE
CASE/FACTS............................................................................................................2
SUMMARY OF
ARGUMENT.............................................................................................................8
ARGUMENTS
I. A DE �OVO REVIEW WILL SHOW THAT THE CIRCUIT
COURT MISAPPLIED THE LAW WHE� IT I�TERPRETED
THE DECLARATIO� OF COVE�A�TS, CO�DITIO�S A�D
RESTRICTIO�S FOR WATERSOU�D. …………10
II. A DE �OVO REVIEW WILL SHOW THAT THE CIRCUIT
COURT MISAPPLIED THE LAW WHE� IT I�TERPRETED
FLORIDA STATUTE 720 …………16
III. THE CIRCUIT COURT ABUSED ITS DISCRETIO� WHE� IT
DE�IED CARROLL’S PETITIO� FOR I�JU�CTIO�.
……..…..18
CONCLUSION........................................................................................................22
i
CERTIFICATE OF
SERVICE.................................................................................................................23
CERTIFICATE OF
COMPLIANCE........................................................................................................23
TABLE OF AUTHORITIES
Cases
Board of Public Instruction v. Town of Bay Harbor Islands,
81 So.2d 637 (Fla. 1955)……………………………………………………10
Coffman v. James,
177 So. 2d 25 (Fla. 1d DCA 1965)………………………………………....21
Daniel v. May,
143 So.2d 536 (Fla. 2d DCA 1962)…………………………………….…..22
Jakobi v. Kings Creek Village Townhouse Ass’n.
665 S.2d 325 (Fla. 3d DCA 1995)………………………………………….11
Ryan v. Town of Manalapan,
414 So.2d 193 (Fla. 1982)……………………………………………….….10
Stephl v. Moore,
94 Fla. 313, 114 So. 455 (1927)………………………………………….....21
Statutes
§720, Fla. Stat. (2009)………………………………………………………......3, 16
§720.301, Fla. Stat. (2009)………………………………………………...………17
§720.305(2), Fla. Stat. (2009)…………………………………………..…..…10, 16
§720.305(2)(a), Fla. Stat. (2009)………………………………………………10, 17
ii
PRELIMI�ARY STATEME�T
Appellant JOHN P. CARROLL, Petitioner below, will be referred to in this
Initial Brief as “Carroll” or “Petitioner Carroll”.
Appellee WATERSOUND BEACH COMMUNITY ASSOCIATION, INC.,
Respondent below, will be referred to in this Initial Brief as “WaterSound” or
“Respondent WaterSound”.
Appellee DAVID LILIENTHAL, Respondent below, will be referred to in this
Initial Brief as “Lilienthal” or “Respondent Lilienthal”.
Appellee SANDRA MATTESON, Respondent below, will be referred to in this
Initial Brief as “Matteson” or “Respondent Matteson”.
For purposes of this brief, the following abbreviations have the following
meanings:
T = Trial transcript
R = Record on appeal
1
STATEME�T OF THE CASE A�D FACTS
Carroll appeals the denial of his Petition for Injunction seeking to enjoin the
expression of a continuing and expanding “benefited assessment” and lien upon Lot
24, WaterSound Beach. On October 9, 2009, Petitioner Carroll filed his original
Complaint against Respondent WaterSound and other respondents in Walton County
Circuit Court with (10) Counts, seeking equitable and other relief with case number
2009 CA 002021 (R 1). On December 29, 2009, Carroll filed a separate Petition for
Declaratory Action, which shared the same case number as the original complaint and
included (6) Exhibits. The Declaratory Action came pursuant Florida Statute 86.011,
and requested the lower tribunal determine the construction, right, procedure, lien
rights, enforceability terms and validity of WaterSound and Board of Director
Lilienthal’s enactment of the “special benefited assessment” (R 2). On March 22,
2010, Carroll filed his Motion for Summary Judgment on that Declaratory Action (R
3). The Summary Judgment included (30) exhibits (R 3).
When Carroll conference called Judge LaPorte and Respondent’s Counsel, Chris
George, to set the hearing on the Motion for Summary Judgment, Mr. George refused
to provide Carroll and the Judicial Assistant with a date to set the hearing (R 4).
Immediately thereafter, on March 24, 2010, Carroll filed the Petition for Injunction at
2
issue before you now (R 5). The Petition for Injunction incorporated the Declaratory
Judgment and the Summary Judgment, along with their (36) exhibits, as exhibits to the
Injunction (R 5).
On March 31, 2010, Carroll filed the Notice of Hearing which read:
“YOU WILL PLEASE TAKE NOTICE that the undersigned will call on for hearing
Plaintiff, John Carroll’s, Petition for Injunction related to Summary Judgment on
Declaratory Relief of the Benefitted Assessment of WaterSound Beach Community
Association, et al before the Honorable W. Howard LaPorte, Circuit Judge, in
Chambers at the Walton County Courthouse, DeFuniak Springs, Florida, on June 14,
2010, at 9:00 a.m. (Central Time), or as soon thereafter as counsel may be heard. The
time reserved for the hearing is 60 minutes.” (emphasis added) (R 6).
The Petition for Injunction along with its exhibits, the Declaratory Action and its
Summary Judgment, provided the lower tribunal with volumes of simple evidence (R
2, R 3, R 5). The lower tribunal was in a position to decide whether the “benefited
assessment” was proper under the terms of the WaterSound Covenants and Florida
Statute 720, and if an injunction was necessary to prevent irreparable injury.
On June 14, 2010, the Honorable Judge W. Howard LaPorte held the hearing on
Carroll’s Petition for Injunction as well as (2) Defense Motions. The Injunction, at
issue here, was first up (T 1 - T 19). The hearing began with a question from the lower
tribunal on whether the parties would argue both the Injunction and the Summary
Judgment, which were both related strictly to the “benefited assessment” (T 3).
3
Mr. George and the Court acknowledged receipt of the Declaratory Petition and
Summary Judgment related to the “benefited assessment” which contained all of the
Exhibits for the Injunction (T 5). Carroll explained the circumstances which prompted
the filing of the Injunction to Judge LaPorte (T 6). Carroll explained the (2) conditions
under which WaterSound is permitted to levy a “benefited assessment” under their
recorded Covenants, Conditions and Restrictions (T 7, T 8). Carroll pointed out
WaterSound and Lilienthal’s departure from the terms and clear language of the
Covenants (T 9, T 10).
Carroll explained his hardship and prayer for relief,
“What I'm here today for now, I wish were for the summary
judgment, but if it means it's just for an injunction, I'd like to ask this
Court to issue an injunction stopping them from continuing to accrue this
$1,000 a month assessment against my lot for something they have no
authority to do. And I'm asking the Court to stay or remove the lien that's
been expressed against my property for that $1,000 a month and that's
all.”… “We don't have time to go to trial in two years and talk about this
recurring lien. It's affecting the closing, the refinance closing on my
property. That's all I have, Your Honor.” (T 10, T 11).
WaterSound’s Counsel offered two lines of argument in his rebuttal to the
Petition for Injunction. First, WaterSound argued that Carroll offered no evidence
which showed he was the first WaterSound owner to be charged with the “benefited
assessment” at issue here (T 12). WaterSound’s second argument was opposite
4
Carroll’s assertion that there is no WaterSound Covenants Committee. Mr. George
informed the Court that WaterSound does have a Covenants Committee (T 12). Mr.
George added argument referencing his interpretation of the Covenants (T 12 - T 14).
This part of the hearing really speaks to the appeal. Mr. George argued,
“He's also mentioned, and I think rightfully so, on occasion some
homebuilders are allowed to go beyond the 16-month period for
constructing a home. That's what we're really dealing with, Judge. The
covenants say, if you're going to build a home in this subdivision -- and
he cites this part of the covenants in his motion -- you have 16 months to
finish that home. If you don't, then they're going to levy a $1,000 a
month fine against you for every month you go over.” (T 12)
Mr. George continued,
“He hasn't finished in that 20 month period, and as such, he's been fined
$1,000 a month since that time. Now, as he mentioned, this fine at this
point takes the form of a lien on the property. They're not forcing him to
pay.” (T 13)
Mr. Davis, Counsel for Co-Defendant Voelker, who is not a party to the
injunction, added argument requesting denial of the injunction on procedural grounds
(T 15).
Carroll attempted to enter an Exhibit into the record which was attached to the
Petition for Injunction. Judge LaPorte waved that off, ruling it was already in the
record as an attachment to the Petition (T 16). The Exhibit was the notice sent to
5
Carroll from WaterSound’s Design Review Board (DRB) dated July 29, 2009 stating
that on July 31, 2009 WaterSound would begin fining Lot 24 $1,000.00 per month
because Carroll’s construction of Lot 24 was not complete (R 7). Carroll pointed out
to the Judge that the Notice was generated by the DRB and Board of Directors, not the
Covenants Committee which does not exist (T 17). Carroll drew the Court’s attention
to the fact that the Notice informed that the fine will be imposed without notice of at
least 14 days or an opportunity for a hearing (R 7; T 17).
Next, Carroll moved to an Exhibit C which was a copy of the June 2006 Board
Minutes and Notice of Meeting (R 8; T 17). WaterSound had previously certified that
the “benefited assessment” was created during that meeting despite the fact that the
notice of meeting did not include a statement that assessments would be considered or
the nature of the assessment (R 8). Carroll further pointed out that those Minutes
showed that the Board actually did not create any assessment during that meeting (R 8;
T 17).
Next, Carroll brought forth Exhibits E, F, G, etc. which were DRB records
showing at least 19 homes that started after June 2006 and finished beyond 16 months
without the levy of a single assessment or notice of violation (R 9, R 10, R 11, R 12, R
13, R 14, R 15, R 16, R 17, R 18, R 19, R 20, R 21, R 22, R 23, R 24, R 25, R 26, R
6
27; T 17, T 18).
Next, Carroll swore to his Exhibits and his testimony (T 18).
Finally, Carroll reiterated that the compounding $1,000.00 monthly “benefited
assessments” are being improperly expressed as a lien against Lot 24 by WaterSound,
that WaterSound has informed Carroll’s title company that they will not clear title
without payment in full of all “benefited assessments”, and that Carroll is being
damaged without an adequate remedy (R 28; T 18).
Carroll only sought compliance with Florida Statutes and WaterSound’s
Covenants. Carroll’s entire argument was founded on the principle that WaterSound,
Lilienthal and Matteson’s actions violate Florida Statute and WaterSound’s Covenants.
This well grounded thesis provided the lower tribunal with everything it needed to
find that Carroll had a high probability of success on the merits (T 1 – T 19).
Judge LaPorte informed the parties that he’d take the Petition for Injunction
under advisement (T 19). Judge LaPorte filed his Order denying the petition on June
16, 2010 (R 29).
On July 2, 2010, Carroll discovered that Respondent’s Counsel made a material
misrepresentation to the Lower Tribunal during the hearing on the Petition for
7
Injunction when he informed the lower tribunal that WaterSound does in fact have a
Covenants Committee. Carroll promptly filed his Florida Rule of Civil Procedure
1.540(b) which was docketed as:
PLAINTIFF’S MOTION FOR RELIEF FROM ORDER DENYING
INJUNCTION RESULTING FROM SURPRISE, NEWLY
DISCOVERED EVIDENCE AND FRAUD UPON THE COURT BY
DEFENDANT WATERSOUND’S COUNSEL (R 30)
On July 14, 2010 the lower tribunal entered its Order denying the 1.540(b)
motion (R 31). This appeal was timely filed on July 16, 2010, and sought reversal of
the denial of the Injunction with instructions to the lower court to enjoin the
Defendants from assessing this “benefited assessment” in the future and abating the
special “benefited assessments” which are currently being expressed as a lien against
Lot 24, (R 32).
SUMMARY OF ARGUME�T
This case is an appeal from a final order denying a petition for injunction. In the
petition, Appellant sought to enjoin Respondents, WaterSound Beach Community
Association, Inc and their management, from enforcing a “fluid” rule or restriction.
Carroll showed that for years, WaterSound and their management toyed with an idea to
penalize members who do not complete construction of their residence, once
8
construction is commenced, within a variable time limit (R 3 at Exhibit Y). This
penalty is being assessed against Lot 24 as a “Benefited Assessment” at this time.
Carroll recognizes WaterSound’s rights under the Covenants and appreciates their
value. The Covenants restrict some degree of freedom, but give owners value and
security protected by contract (the Covenants).
This is not a complex issue. The Appellees are either issuing a fine or a
“benefited assessment”. It’s a fine. HOA fines are not lienable in Florida. I
understand the core issues to be:
1. Does WaterSound have a contractual and Statutory right to assess the
“benefited assessment” against Lot 24?
2. Is WaterSound permitted to lien Lot 24 for this “benefited assessment”?
3. If not, shouldn’t the lower tribunal have issued the Injunction seeking to
enjoin the expression of said “Benefited Assessment” as a growing lien against Lot 24?
WaterSound, Lilienthal and Matteson do not have the right to assess the “benefited
assessment” against Lot 24. The definition of a “benefited assessment” found in the
Covenants is not remotely in line with the “benefited assessment” at issue before you
now. The contract’s clear and unambiguous terms control. The lower tribunal
misapplied the law when it interpreted the contract (Covenants).
9
WaterSound, Lilienthal and Matteson are violating Florida Statute by expressing
a lien against Lot 24 for this “benefited assessment”. The lower tribunal misapplied
the law when it interpreted Florida Statutes 720.305(2) and 720.305(2)(a).
The lower tribunal has the discretion to issue or deny Carroll’s Petition for
Injunction. In this case, the lower tribunal abused that discretion and left Carroll with
no adequate remedy at law
ARGUME�T
I. A DE �OVO REVIEW WILL SHOW THAT THE CIRCUIT
COURT MISAPPLIED THE LAW WHE� IT
I�TERPRETED THE DECLARATIO� OF COVE�A�TS,
CO�DITIO�S A�D RESTRICTIO�S FOR WATERSOU�D.
WaterSound is issuing a fine against Lot 24, but calling it a “benefited
assessment” so that they can lien Lot 24. In Florida, individual HOA fines must be
reasonable and have a cap of $100.00. Continuing Covenant violation fines are limited
to $1,000.00 in their aggregate. Carroll’s Petition for Injunction included
WaterSound’s recorded Covenants (R 2 at Exhibit A). Covenants are contracts.
While WaterSound’s restrictive covenants concern property and may run with the land,
restrictive covenants are still contract rights. Board of Public Instruction v. Town of
Bay Harbor Islands, 81 So.2d 637 (Fla. 1955). Ryan v. Town of Manalapan, 414
10
So.2d 193 (Fla. 1982). Jakobi v. Kings Creek Village Townhouse Ass’n. 665 S.2d 325
(Fla. 3d DCA 1995). WaterSound, Lilienthal and Matteson breached those contract
rights, and the lower tribunal misinterpreted those contract rights.
Article 8.5 of the Covenants controls the issuance of Benefited Assessments and
reads in its entirety:
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. (emphasis added)
Clearly, the “Benefited Assessment” being expressed against Lot 24 does not
fall into category (a) above. This leaves category (b). Category (b) demands that any
assessment be tied strictly to costs incurred. Petitioner, not WaterSound, is
11
constructing the home at Lot 24. WaterSound has not incurred any costs in bringing
the Lot into compliance. In fact, WaterSound arbitrarily and capriciously switches
back and forth between calling this a fine and calling it a “benefited assessment” (R 2
at Exhibit C). It’s not a “benefited assessment”, it’s a fine. During the hearing on the
Petition for Injunction, Counsel for Respondents only referred to this as a fine and in
the same breath admitted that Respondents are expressing it as a lien against Lot 24 (T
12, T 13). The Injunction and its Exhibits, the Declaratory Action and its Summary
Judgment, show that WaterSound has not attempted to bring the home into compliance
by completing construction for Carroll. WaterSound merely wishes to create positive
revenues by collecting a fine. HOA fines are not lienable in Florida.
Category (b) also mandates that WaterSound provide prior written notice and an
opportunity for a hearing, before levying any Benefited Assessment. The notice does
not provide an opportunity for a hearing, and thus, such notice is fatally flawed (R 7).
WaterSound created this new class of “monthly benefited assessment” without
following the Covenant’s notice, vote or right to hearing. The Covenants include
“Bylaws”, which were attached to the Petition for Injunction (R 2 at Exhibit A).
The “Bylaws” state in pertinent part:
“3.24. Enforcement.
The Association may impose sanctions for any violation of the Governing
12
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) Notice. 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.
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.”
3.24 (a) provides, in pertinent part, the Notice must:
1) Describe the process for a hearing;
2) The sanction shall be imposed unless the alleged violator elects the
hearing; and
3) The Covenants Committee must first approve the fine by a majority
vote.
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
13
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. (emphasis added)
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.
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” (R 7).
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 (R 8).
14
During the June 2006 Meeting, under Completion Dates for Single Family
Home Construction, a motion was made by the Board of Directors for a 16 month
completion of a single family home with a $1,000/month penalty for every month over
16 months. According to their plan, to waive the fee, the homeowner’s plans and
intent must go before the same board (Board of Directors) for review (R 8).
The Petition for Injunction’s first Exhibit (The Declaratory Action) noted that
the WaterSound Architectural Review Board (hereinafter “ARB”) substituted the
Covenant’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 “benefited assessment” at issue before you now (R 2 at 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 Covenants. It’s unclear how the ARB finds its posture
of authority to undertake enforcement and notification. They have no such authority
when reading the Covenants.
Carroll successfully provided the Circuit Court with the essential elements to
support the issuance of an injunction:
1. Irreparable harm
15
2. A clear legal right
3. An inadequate remedy at law
4. A likelihood of success on the merits
Carroll prays the justices of the 1st District Court of Appeal stand up for Carroll
and the citizens of WaterSound by requiring the lower court to issue an injunction
barring the Defendants from expressing this quazi “benefited assessment”.
II. A DE �OVO REVIEW WILL SHOW THAT THE CIRCUIT
COURT MISAPPLIED THE LAW WHE� IT
I�TERPRETED FLORIDA STATUTE 720.
Florida Statute 720 is the Statute that controls Homeowners Associations like
WaterSound. As the trial court clearly observed, by competent substantial evidence,
WaterSound liened, and continues to expand its monthly liens against Lot 24, in direct
violation of Florida Statute. Nonetheless, the trial court decided that injunctive relief
should be denied. The lower court committed reversible error when it misinterpreted
Florida Statute.
WaterSound is fining Lot 24, but has renamed the fine and liened Lot 24 for a
“benefited assessment”. The $1,000.00 per occurrence fine exceeds the limit of
Florida Statute.
Florida Statute 720.305(2) reads:
16
“If the governing documents so provide, an association may suspend, for a
reasonable period of time, the rights of a member or a member's tenants, guests, or
invitees, or both, to use common areas and facilities and may levy reasonable fines, not
to exceed $100 per violation, against any member or any tenant, guest, or invitee. A
fine may be levied on the basis of each day of a continuing violation, with a single
notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the
aggregate unless otherwise provided in the governing documents. A fine shall not
become a lien against a parcel.” (emphasis added)
720.305(2)(a) reads:
“A fine or suspension may not be imposed without notice of at least 14 days to
the person sought to be fined or suspended and an opportunity for a hearing before a
committee of at least three members appointed by the board who are not officers,
directors, or employees of the association, or the spouse, parent, child, brother, or sister
of an officer, director, or employee. If the committee, by majority vote, does not
approve a proposed fine or suspension, it may not be imposed.” (emphasis added)
Despite Florida Statute, WaterSound’s Board of Directors levied the fine.
WaterSound has no Covenants Committee. WaterSound’s notice offered no hearing,
and had no tribunal available. WaterSound’s notice was dated July 29, 2009 and stated
that in 2 days Lot 24 will begin being assessed $1,000.00 monthly starting on July 1,
2009. Every step of their actions are in violation of the law.
720.301 Definitions reads: “As used in this chapter, the term:
(1) "Assessment" or "amenity fee" means a sum or sums of money payable to the
association, to the developer or other owner of common areas, or to recreational
facilities and other properties serving the parcels by the owners of one or more parcels
as authorized in the governing documents, which if not paid by the owner of a parcel,
can result in a lien against the parcel.
(4) "Declaration of covenants," or "declaration," means a recorded written instrument
17
in the nature of covenants running with the land which subjects the land comprising the
community to the jurisdiction and control of an association or associations in which the
owners of the parcels, or their association representatives, must be members.”
(emphasis added)
The newly created “benefited assessment” at issue here wasn’t conceived prior
to the recording of the Covenants. There have been no recorded amendments to the
Covenants that mention this special “benefited assessment”. The lower tribunal had all
of this information as exhibits to the Petition for Injunction, but denied the Petition
nonetheless.
Appellant prays you recognize the lower tribunal’s misinterpretation of Florida
Statute as it relates to this case, and as such issue a reversal of the Order denying the
Petition for Injunction.
III. THE CIRCUIT COURT ABUSED ITS DISCRETIO� WHE�
IT DE�IED CARROLL’S PETITIO� FOR I�JU�CTIO�.
Carroll knows that to challenge enforcement of WaterSound’s Covenant is a
heavy burden. The point of the Petition for Injunction, and now this appeal, is that the
Appellees actions are opposite WaterSound’s Covenants and Florida Statute. Carroll
sought to enforce the Covenants and Florida Statutes which are clear and
unambiguous.
18
It’s undisputed that WaterSound, Matteson and Lilienthal are expressing a lien against
Lot 24. It’s undisputed that WaterSound, Matteson and Lilienthal are expressing that
lien because construction at Lot 24 was not completed within 16 months. It’s
undisputed that WaterSound is not attempting to complete construction at Lot 24. It’s
undisputed that WaterSound is expressing this lien at $1,000.00 per occurrence. It’s
undisputed that currently WaterSound is calling this a “benefited assessment”. It’s
undisputed that the “benefited assessments” levied against Lot 24 are being assessed on
the first of each month and now total $12,000.00. It’s undisputed that Florida Statute
forbids an HOA fine to be expressed as a lien. It’s undisputed that WaterSound must
have a Covenants Committee prior to the issuance of any fine or “benefited
assessment”. It’s undisputed that Florida Statute limits HOA fines to $100.00 per
occurrence and a $1,000.00 aggregate for a continuing violation. It’s undisputed that
WaterSound’s Covenants allow the expression of this type of “benefited assessment”
only to cover costs incurred in bringing a home into compliance. It’s undisputed that
WaterSound transmitted a payoff statement to Carroll’s title insurer showing the
$1,000.00 monthly benefited assessments as a lien against Lot 24. It’s undisputed that
the “benefited assessment” being expressed as a perpetual expanding lien against Lot
24 comes with no benefit to Lot 24. It’s undisputed that at least 19 homes in
19
WaterSound went beyond 16 months in construction time without being levied any
fine or assessment. It’s undisputed that WaterSound’s Builder Standards provide for a
one time $500.00 fine for construction beyond 12 months. It’s undisputed that
WaterSound issued these fines against Lot 24 without obtaining a vote from the
Covenants Committee. It’s undisputed that this “benefited assessment” is actually
punitive in nature and would represent a windfall for WaterSound. It’s undisputed that
for months after the commencement of the monthly “benefitted assessment” regimen
against Lot 24, the management and Board of Directors were in constant flux over
whether or not this was a fine or “benefitted assessment”, and whether or not it was
proper to lien for same. It’s undisputed that an injunction is the proper vehicle in
Florida Law for a dispute such as this. The Lower Tribunal had all of this information
when it denied the Petition for Injunction.
Here’s what the Respondents presented to the lower tribunal in rebuttal to
Carroll’s request for the Injunction,”
“He's also mentioned, and I think rightfully so, on occasion some homebuilders
are allowed to go beyond the 16-month period for constructing a home. That's what
we're really dealing with, Judge. The covenants say, if you're going to build a home in
this subdivision -- and he cites this part of the covenants in his motion -- you have 16
months to finish that home. If you don't, then they're going to levy a $1,000 a month
fine against you for every month you go over. There is a process that a builder such as
Mr. Carroll can apply for an extension for a longer time to complete a home. And in
fact, on this lot that he's complaining about, Lot 24, Mr. Carroll requested and was
granted a four-month extension. So he was given not 16 months but 20 months to
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finish constructing the home on that lot. He hasn't finished in that 20 month period,
and as such, he's been fined $1,000 a month since that time. Now, as he mentioned,
this fine at this point takes the form of a lien on the property. They're not forcing him
to pay. They haven't started any action to try to collect that. And I think that's
important because, you know, in order to get injunctive relief, he's got to show that he
has no adequate remedy and he's going to suffer irreparable harm if the relief he seeks
isn't granted. Also, as he noted, Section 3.24 of the covenants say that once he's given
notice of this assessment, which he was given by virtue of the fact that he got a four-
month extension, and they wrote him and said, all right, we grant you the four month
extension. You have 20 months to finish. If you don't finish in 20 months, we're going
to start fining you $1,000 a month. He received that letter, and he was aware then that
after the 20 months, he started getting fined. The by-laws say that if a builder, such as
Mr. Carroll, wants to contest any kind of a penalty against him, there's a procedure for
doing that. There's a set time limit for filing for an appeal with the covenants
committee. He's not done any of that. So he hasn't taken the steps to get the relief that
might have been available to him. He let that time period expire. And by doing so, I
contend he's waived any right to contest that assessment” (T 12, T 13)
Even if the lower tribunal accepted all of that as true, it still should have
recognized that the Appellees actions were improper under the Covenants and Florida
Statute, and the expression of expanding monthly liens against Lot 24 warranted the
issuance of the Injunction. If the lower tribunal had read the Covenants, which were
attached to the Petition for Injunction, they would have found that nearly all of the
Appellees testimonial claims about the Covenants were incorrect or non-existent.
In Coffman v. James, 177 So. 2d 25 (Fla. 1d DCA 1965) this Court said:
“It is well established in this jurisdiction that even in the absence of
a showing of irreparable injury injunctive relief is grantable as a matter of
right, subject only to sound judicial discretion, to restrain the violation of
a restrictive covenant affecting real estate. Stephl v. Moore, 94 Fla 313,
114 So. 455 (1927). It is the theory of the law that every piece of land has
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a peculiar value, infringement of which is not readily remedial by
assessment of damages of law. Cf. 29 Fla.Jur., page 555. And where the
facts are clear and undisputed, the court by means of a mandatory
injunction may compel the undoing of a thing already done in violation of
such covenants. Daniel v. May, 143 So.2d 536 (Fla 2d DCA 1962).”
It is Carroll’s complete belief that, under identical circumstances, any reasonable
judge would have issued the injunction at the conclusion of the hearing. Carroll
respectfully requests that this court consider the judge’s position, the substantial
pleadings, the clear terms of WaterSound’s Covenants, Florida Statute, all the
evidence and the malformed defense proffered by Respondents WaterSound, Lilienthal
and Matteson to determine that the lower court abused its discretion when it denied
Carroll’s Petition for Injunction.
CO�CLUSIO�
For the above-mentioned reasons, Carroll contends that the trial court committed
reversible error and abused its discretion by denying the Petition for Injunction, and
thus Carroll requests that this Court reverse the trial court’s denial of Injunction and
remand with instructions for the immediate issuance of the injunction.
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Respectfully submitted,
_____________________________
John P. Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to Christopher L. George, Esq., PO Box 1034, Mobile, AL 36633 and to
Mark D. Davis, Esq., 694 Baldwin Ave. Suite 1, PO Box 705, DeFuniak Springs, FL
32435, Attorneys for Appellees, by hand delivery or certified mail this 29th day of July,
2010.
_____________________________
John Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
CERTIFICATE OF COMPLIA�CE
I HEREBY CERTIFY that the lettering in this brief is Times New Roman 14-
point Font and complies with the font requirements of Florida Rule of Appellate
Procedure 9.210(a)(2).
_____________________________
John Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
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