IN THE FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

JOHN P. CARROLL,

Plaintiff/Appellant,

v. CASE NO.: 1D12-1498

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

AAbsolute@aol.com

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 WEIGHED THE

EVIDE�CE I� ORDER TO GRA�T SUMMARY JUDGME�T I�

FAVOR OF THE DEFE�DA�TS.

…………14

II. A DE �OVO REVIEW WILL SHOW THAT THE CIRCUIT

COURT ABUSED ITS DISCRETIO� A�D MISAPPLIED THE

LAW WHE� IT GRA�TED THE DEFE�DA�TS’ MOTIO� TO

DISMISS THE PLAI�TIFF’S CLAIMS.

…………21

III. A DE �OVO REVIEW WILL SHOW THAT THE CIRCUIT

COURT ABUSED ITS DISCRETIO� A�D MISAPPLIED THE

LAW WHE� IT DE�IED THE PLAI�TIFF’S MOTIO� FOR

LEAVE TO AME�D THE PLEADI�GS TO SEEK PU�ITIVE

DAMAGES.

……..…..21

i

IV. THE CIRCUIT COURT ABUSED ITS DISCRETIO� WHE� IT

DE�IED THE PLAI�TIFF’S MOTIO� FOR LEAVE TO ADD

PARTIES.

…………24

CONCLUSION........................................................................................................25

CERTIFICATE OF

SERVICE.................................................................................................................26

CERTIFICATE OF

COMPLIANCE........................................................................................................26

TABLE OF AUTHORITIES

Cases

Carraway v. Revell,

116 So. 2d 16 (Fla. Supreme Court 1959)………………………………….23

Ford v. Rowland,

562 So. 2d 731 (Fla. 5d DCA 1990)……………………………………......17

Statutes

§ 720.303, Fla. Stat. (2009)…………………………………………...... ………...12

§ 768.72, Fla. Stat. (2011)………………………………………..……13, 21, 22, 23

Florida Rules of Civil Procedure

1.190(f) (2011)………………………………………………………….…13, 21, 22

Florida Form 1.977 – Financial Facts Information Sheet (2011)…………….…9, 22

ii

PRELIMI�ARY STATEME�T

Appellant JOHN P. CARROLL, Plaintiff below, will be referred to in this Initial

Brief as “Carroll” or “Plaintiff Carroll”.

Appellee WATERSOUND BEACH COMMUNITY ASSOCIATION, INC.,

Defendant below, will be referred to in this Initial Brief as “WaterSound” .

Appellee DAVID LILIENTHAL, Defendant below, will be referred to in this

Initial Brief as “Lilienthal” or “Defendant Lilienthal”.

Appellee SANDRA MATTESON, Defendant below, will be referred to in this

Initial Brief as “Matteson” or “Defendant Matteson”.

Appellee MARY JOULE, Defendant below, will be referred to in this Initial

Brief as “Joule” or “Defendant Joule”.

Appellee RONALD VOELKER, Defendant below, will be referred to in this

Initial Brief as “Voelker” or “Defendant Voelker”.

Appellee WATERCOLOR COMMUNITY ASSOCIATION, INC., Defendant

below, will be referred to in this Initial Brief as “Watercolor” or “Defendant

Watercolor”.

For purposes of this brief, the following abbreviations have the following

meanings:

R = Record on appeal

1

STATEME�T OF THE CASE A�D FACTS

Carroll appeals several Orders and will painstakingly endeavor to simplify and

condense this Appeal. Three of the Orders are subject to a de novo standard of review.

As such, the Record on Appeal contains 5,495 relevant pages. Carroll will guide this

Court by the shortest path for review, and the Clerk of the lower tribunal has filed an

excellent Index and Record of all documents relevant to this appeal.

The Plaintiff

Carroll is a Florida Licensed Contractor who lives and works in Walton County,

Florida. Walton County real estate development is dominated by the St. Joe Company

who is developing 30,000 acres there. St. Joe’s flagship beach front communities are

Watercolor and WaterSound Beach. Both Carroll and his company Chambers Street

Builders, Inc. owned property and built there. Carroll’s model home was located on

the most prominent lot in WaterSound Beach (R 3270).

In Walton County, a spot on the Watercolor and WaterSound approved builders

list is highly coveted (R 504). In a community whose primary business is resort

accommodations, being among the select few builders to appear on the WaterSound

and Watercolor approved builders lists carries with it a certain unmistakable stature.

2

The Watercolor and WaterSound approved builders lists are passed throughout the

Realtor community, and vacant lot owners who were Carroll’s neighbors are also

updated regularly with these lists (R 3971). The lists show the name of the builder and

the name of their company (R 2733). Carroll and his company were added to the

Watercolor approved builders list in 2003 (R 503). Carroll’s business revenues

doubled every year from 2003 through 2007.

Walton County’s real estate market began its pronounced decline in April 2005.

Carroll continued to streamline his business, lowered his costs and his prices, and

continued to double his sales year over year (R 1061). As Carroll increased his market

share, the Defendants’ efforts to stop him also increased. Starting in 2006, the

Defendants undertook a coordinated and sustained campaign to boycott Carroll. First,

Defendant Matteson circumvented Carroll’s protection of the Covenants and

Restrictions (R 534 middle paragraph) and had Carroll and his company’s name

removed from the approved builders list handouts at Watercolor (R 3974). Carroll

mitigated those damages as best he could and continued to grow his business.

Defendant Joule then illegally entered one of Carroll’s jobs to conduct a covert

inspection in an attempt to shut down the job and portray Carroll’s work as improper

3

(R 1068). Contractors and owners are protected from covert inspections by the

Covenants which strictly forbid secret inspections and entrance onto property at

sections 10.7 and 10.8 (R 562).

Carroll made certain that Defendants Watercolor and WaterSound were on

notice about the Defendants’ tortious acts, but the Defendant HOA’s took no corrective

action (R 2136). Carroll’s business continued to thrive and the Defendants eventually

became reckless with their efforts. By May of 2008 Carroll recognized that the

Defendants were actively engaged in a public boycott and smear campaign of him and

his business. Accordingly, Carroll engaged Daniel Uhlfelder, Esq. to demand an

immediate cease and desist of their improper activities (R 3985). Instead, Defendant

Joule and Matteson, with the support of Defendants Lilienthal, Voelker and

WaterSound, conducted another illegal inspection, this time of Carroll’s model home

on the most prominent lot in WaterSound (R 1046). Unannounced, the conspirators

then rushed their inaccurate survey to a sham Board of Directors meeting where they

declared Carroll’s construction in violation of the Walton County height ordinance. (R

640). The Defendants then posted their artificial findings to the World Wide Web

libeling Carroll (R Addendum Volume 30 Transcript at middle of Page 25). After

the Defendants took those actions they notified Carroll by way of a letter demanding

4

the concrete building be torn down (R 642).

Shortly thereafter, Defendant Voelker admitted the survey was inaccurate (R

4430), but the Defendants defamed Carroll by re-publicizing the false statements about

Carroll’s construction to the World Wide Web on an unprotected site (R 640). The

Defendants were notified that 1) the statements were false 2) that they left a lasting

impression on Carroll’s customers, neighbors and peers 3) that Carroll was suffering

damages as a result, and 4) that Carroll demanded a complete retraction (R 650). The

Defendants never issued the retraction Carroll needed to clear the false impression.

The Defendants

The Defendants include Lilienthal who started as a St. Joe Company Realtor

before moving to an independent agency, and was later a Board of Director of the

WaterSound Beach Community Association (R 732). Lilienthal and his son also

owned investment property in WaterSound (R 795). Lilienthal’s son is a WaterSound

and Watercolor Builder and competitor to Carroll (R 796). Defendant Joule worked

for the St. Joe Company before going to work for the HOA management company as

the “WaterSound and Watercolor Design Review Board Compliance Officer”. Joule’s

boss was Defendant Matteson who was a Senior Vice President for the St. Joe

5

Company and later a senior officer at the HOA’s management company (R 3821).

Defendant Voelker is a land surveyor who conducted the covert survey of Carroll’s

model home property which purported to show Carroll’s construction on his model

home was built in violation of Walton County’s height limit ordinance (R 4159).

Defendants WaterSound and Watercolor are Florida Homeowners Associations whose

actions are governed by identical Restrictive Covenants which were recorded in the

Public Records of Walton County. The restrictive covenants are contracts in Florida,

and because Carroll (an owner and a builder under the Covenants) alleged the

Defendants breached them, Carroll attached them to his 2nd Amended Complaint as

Exhibit G (R 512).

As a result of the Defendants actions, Carroll’s thriving business was all but

closed in Walton County. Carroll has had to work out of town for the past 4 years and

his family has faced ridicule in this small town.

While no small issue, Carroll will very briefly add that Defendants Lilienthal,

Matteson and WaterSound also continue to allow buried hazardous developer waste to

persist underground surrounding Carroll’s property on three sides (R 626, R 4688, R

4692, R 4693, R 4694, R 4695, R 4696, R 4697, R 4677, R 4669). In addition, to

cloud Carroll’s title, Defendants Lilienthal, Matteson and WaterSound have expressed

6

an ever increasing, yet contractually improper, “benefitted assessment” against

Carroll’s property. The illegality and harm was fully documented for the Court (R 1).

Said assessment appears as a lien and made it impossible to close additional financing

since September 2009.

This case commenced on October 9, 2009 when Carroll filed his original

Complaint against the Defendants in Walton County Circuit Court with (10) Counts,

seeking equitable and other relief. Carroll filed his 2nd Amended Complaint on July 6,

2010 (R 462 – R 500). The claims were:

I Tortious Interference with Advantageous Business Relationship

II Fraud

III Breach of Fiduciary Duty

IV Libel

V Negligent Retention

VI Civil Conspiracy

VII Slander

VIII Negligence

IX Breach of Contract

X Slander of Title

7

The Order of Partial Dismissal

On July 30, 2010 Watercolor filed their Motion to Dismiss Carroll’s Second

Amended Complaint(R 653). On September 9, 2010 WaterSound, Joule, Matteson

and Lilienthal filed their Motion to Dismiss (R 664). On November 1, 2010 Carroll

filed his Response in Opposition to the Defendants’ Motions to Dismiss (R 679). On

November 9, 2010 the lower tribunal filed its Order on the Defendants’ Motion to

Dismiss (R 687). It dismissed Count I against all Defendants for failure to state a

cause of action. It dismissed Count II against Watercolor. It left Count III intact. It

left Count IV intact. It left Count V intact. It dismissed Count VI against only

Matteson, Lilienthal and Joule. It left Count VII intact. It left Count VIII intact. It left

Count IX intact only against WaterSound. It dismissed Count X. Earlier, Carroll filed

the original complaint and one amended, and as a result, the Court ruled the dismissals

were with prejudice.

The Order Denying Carroll’s Punitive Damages

As late as December 3, 2010, Carroll repeatedly sought the Court’s assistance

with the Defendants’ discovery delays (R 694). The WaterSound and Watercolor

Defendants began submitting to depositions beginning on December 6, 2010 (R 2619).

The Defendants agreed to depositions 2 days every other month. By April 5, 2011

8

Carroll completed review of 30,000 pages of discovery and 12 depositions (R 1865).

On April 27, 2011 the Court found Defendants Joule and Lilienthal in Contempt and

ordered them to immediately supplement their responses to Carroll’s discovery request.

On May 23, 2011 Carroll filed his Motion for Leave to Amend the Second Amended

Complaint to Add a Claim for Punitive Damages with Supporting Memorandum of

Law and Proffer of Evidence (with attached original Third Amended Complaint) (R

1187). Carroll simultaneously filed a Motion to Compel the Defendants to Complete

Florida Form 1.977 – Financial Facts Information Sheet (R 1674) which should have

completed Discovery regarding Punitive Damages. On June 14, 2011 the lower

tribunal denied Carroll’s Motion for Leave to Add the Claim for Punitive Damages (R

4612). The lower tribunal denied Carroll’s Motion for Leave to Amend on grounds

that “discovery was now closed and the motion was untimely” (R 4616) despite the

fact that depositions continued through August 23, 2011 (R 5179). On June 17, 2011

Carroll filed a Motion for Rehearing and or Reconsideration (R 4614). The Motion for

Rehearing or Reconsideration was denied on August 9, 2011.

The Order Denying Carroll’s Motion to Add Parties

Carroll’s Complaint named John and Jane Doe as unknown co-conspirators. On

April 5, 2011, the last day of regularly scheduled depositions, the deponent Brian

9

Stackable, a high ranking St. Joe Company employee, introduced clear evidence

implicating the St. Joe Company’s CEO in the tortious acts of the civil conspirators (R

3059). Carroll made a Motion to Add Party Defendants William Britt Greene and the

St. Joe Company (R 4500). St. Joe and their CEO would replace John and Jane Doe as

Defendants. This would avoid the parties and the court having to litigate the entire

case twice (very complicated in a civil conspiracy case). The lower tribunal denied

Carroll’s motion to add parties on June 14, 2011 (R 4612).

The Order Granting Final Summary Judgment which completely removed

Defendants Watercolor, Joule, Lilienthal and Matteson

from the litigation

On May 13, 2011 Defendant Watercolor filed their Motion for Summary

Judgment on all remaining claims (R 1174). On May 16, 2011 Defendants

WaterSound, Lilienthal, Joule and Matteson filed their Motion for Summary Judgment

on all remaining claims (R 1185). On May 27, 2011 Carroll filed his Memorandum in

Opposition to the Defendants Motions for Summary Judgment (R 1694). On June 22,

2011 Carroll filed his Supplement to his Memorandum in Opposition to Defendants’

Motions for Summary Judgment (R 4626). On June 24, 2011 the lower tribunal orally

granted the Defendants’ Watercolor, Joule, Matteson, and Lilienthal’s Motions for

10

Summary Judgment without elaborating. Carroll was certain that Counsel for the

Defense could not possibly reduce the lower tribunal’s findings to writing. On June

27, 2011 Carroll filed a Motion to Prohibit the Defendants from Drafting the Orders of

Summary Judgment on behalf of the court (R 4631). On June 30, 2011 the lower

tribunal filed the Order Granting Summary Judgment in Full in Favor of Defendants

Lilienthal, Matteson, and Joule (R 4850). The Order, prepared by Defense Counsel,

contained no findings of fact or conclusions of law. Also on June 30, 2011 the lower

tribunal filed the Order Granting Summary Judgment in Full in Favor of Defendant

Watercolor (R 4860). This Order too, prepared by Watercolor’s Counsel, contained no

findings of fact or conclusions of law. Lilienthal, Joule and Matteson’s Counsel forgot

to move for Summary Judgment on Carroll’s Slander claim (R 1185), but that didn’t

stop the lower tribunal from signing its Order against that claim as well (R 4850). On

July 8, 2011 Carroll filed his Motion for Rehearing, Motion for Reconsideration,

Motion to Vacate, and Motion for Clarification of Court’s Orders Granting Final

Summary Judgment (R 4867). On July 11, 2011 Defendant Watercolor filed its

Response to Carroll’s Motion for Clarification, etc. (R 5172). On August 5, 2011 the

lower tribunal entered its Order denying Carroll’s “Motion for Rehearing” (R 5176)

without commentary.

11

Creating Appellate Jurisdiction

On September 9, 2011 Carroll filed an Appeal of the Orders present in this

Appeal. 1DCA assigned that appeal case number 1D11-4722. That Appeal was

dismissed by the DCA as premature. On January 23, 2012 Carroll filed a Motion to

Amend or Supplement Final Orders to create Appellate Jurisdiction (R 5249). On

February 21, 2012 the lower tribunal entered its Order Granting Carroll’s Motion to

Amend Final Orders (R 5254). On February 21, 2012 the lower tribunal entered its

Amended Orders Granting Final Summary Judgment in Full in Favor of Defendants

Lilienthal, Joule, Matteson and Watercolor (R 5256, R 5260). On March 21, 2012

Carroll filed the Notice of Appeal in the case before you now (R 5262).

SUMMARY OF ARGUME�T

This case is an appeal of several orders. It’s a story of covert economic boycott

aggravated by defamation. Carroll was supposed to be protected by his contract with

the defendants who were his fiduciaries under Florida Statute 720.303. The appellate

standard of review on the order which dismissed several of Carroll’s claims with

prejudice is de novo. Carroll crafted the complaint with the essential elements of each

cause of action in hand. The complaint covered the acts of six named defendants and

12

John and Jane Doe to account for unknown co-conspirators. The complaint included

10 counts including civil conspiracy. This required 63 paragraphs covering acts over a

4 year period. Carroll aspired to brevity. It may be an unorthodox read, but Carroll

pleaded all of the essential elements against each intended Defendant. The dismissal

should also be reviewed under the abuse of discretion standard relating to the

dismissals being with prejudice. Specific element revisions could have been afforded.

The standard of review on the order which denied Carroll’s Motion to Amend

the Pleadings to Seek Punitive Damages is de novo. The lower tribunal misapplied the

law when it interpreted §768.72 and Florida Rule of Civil Procedure 1.190(f). In

Florida a party must conduct discovery, then seek leave to amend the pleadings in

order to add a claim for punitive damages. In this case, the defendants stalled Carroll’s

discovery requests until after he filed his second amended complaint. Carroll’s first

opportunity to add his claim for punitive damages was after the court ruled that he

could no longer amend. For the same reason, the standard of review on the punitive

damages issue is abuse of discretion to the extent the lower tribunal chose to deny

Carroll’s claim as untimely instead of amending the case management order to allow

Carroll a short time to conduct discovery regarding the Defendants finances.

13

The appellate standard of review for Summary Judgments is de novo. In this

case, the lower tribunal weighed the evidence. That’s improper. Interestingly,

Defendants Lilienthal, Joule, Matteson and WaterSound moved for summary judgment

on Carroll’s Slander of Title claim (which had already been dismissed) instead of the

surviving Slander claim. Over Carroll’s objection, the lower tribunal let them prepare

the order granting Summary Judgment, they inserted Slander and the court signed the

order anyway.

The final issue on appeal is whether the lower tribunal abused its discretion by

denying Carroll’s Motion to Add Party Defendants. This case has generated 30,000

pages of discovery in a civil conspiracy case. Carroll had space to substitute John and

Jane Doe for additional defendants. Carroll secured substantial and credible evidence

which showed the St. Joe Company and their CEO were at the top of the civil

conspiracy. The lower tribunal abused its discretion when it denied Carroll’s motion to

substitute parties and ordered Carroll to litigate the same issues in a separate

proceeding against the additional defendants.

ARGUME�T

I. A DE �OVO REVIEW WILL SHOW THAT THE CIRCUIT

COURT MISAPPLIED THE LAW WHE� IT WEIGHED THE

EVIDE�CE I� ORDER TO GRA�T SUMMARY JUDGME�T I�

FAVOR OF THE DEFE�DA�TS.

14

Defendants WaterSound, Matteson, Lilienthal and Joule filed a combined

motion for summary judgment (R 1185 {the Record only contains the cover page

and omits the actual Motion}). Watercolor filed its own motion for summary

judgment (R 1174). Carroll filed a single Memorandum in Opposition which covered

all the Defendants MSJ’s (R 1694). Carroll followed up with a supplemental

memorandum in opposition (R 4626). The hearing on the Motions for Summary

Judgment were held on June 24, 2011, and the pages of the transcript that cover that

are pages 1 through 71 (R Addendum - Volume 30 Transcript).

The lower tribunal made an oral pronouncement at the hearings, without

elaborating on his conclusions, that the Motions for Summary Judgment were granted.

Carroll felt the Order should include findings of fact and conclusions of law for

meaningful appellate review, but was certain that Counsel for the defendants could not

put words in the mouth of the lower tribunal. Carroll filed a motion seeking to prohibit

the defendants counsel from preparing the orders on behalf of the judge (R 4631). The

Defendants went ahead and prepared the Orders with the only findings being that “they

are do to be, and are hereby Granted”. The lower tribunal entered the Orders as

presented (R 4850, R 4860).

15

Because the Order disposed of the case in its entirety against certain defendants

Carroll filed a Motion for Rehearing, Motion for Reconsideration, Motion to Vacate

and Motion for Clarification (R 4867). The Motion for Rehearing, etc. pointed out to

the Court that Defendants WaterSound, Lilienthal, Joule and Matteson mistakenly

sought summary judgment for slander of title for Count VII (a previously dismissed

claim) and made no mention of the actual Count VII which was slander (R 1185 {the

Record only contains the cover page and omits the actual Motion} this reference

was Page 23 – 24 of the actual Motion). Despite the glaring omission the lower

tribunal summarily denied those Motions (R 5176).

Because the review is de novo, and the orders under review do not set forth the

lower tribunal’s findings or conclusions, Carroll will direct the DCA to the arguments

and evidence which are present in the primary documents which are all listed in this

section. It’s noteworthy that there is a slight indication that the lower tribunal was

interested in a distinction between Carroll individually versus his corporation

Chambers Street Builders, Inc. as the real party in interest (R Addendum - Volume

30, Transcript Page 69). This is where the Court weighed the evidence which is not

the job of a court when deciding a Motion for Summary Judgment. That is a

misapplication of the law. The Court put itself in the shoes of the trier of fact. See

16

Ford v. Rowland, 562 So. 2d 731 (Fla. 5d DCA 1990) “The appellant contends, and we

agree, that if an allegedly defamatory publication is reasonably susceptible of two

meanings, one of which is defamatory and one of which is not, it is for the trier of fact

to determine the meaning understood by the average reader. See Perry v. Cosgrove,

464 So.2d 664 (Fla. 2d DCA 1985); Miami Herald Publishing Company v. Ane, 423

So.2d 376, 389 (Fla. 3d DCA 1982), approved, 458 So.2d 239 (Fla. 1984); see also,

Belli v. Orlando Daily Newspapers, Inc., 389 F.2d 579 (5th Cir.1967), cert. denied,

393 U.S. 825, 89 S.Ct. 88, 21 L.Ed.2d 96 (1968).”

Carroll’s complaint alleges that his name appeared side by side with the name of

his company on the approved builders lists for WaterSound and Watercolor. The

evidence presented showed that was true (R 2733 Chambers Street Builders, Inc.-

John Carroll 6th

name down the list). Even defense Counsel conceded this point

during his argument in support of his clients Motions for Summary Judgment (R

Addendum-Transcript page 21 center of page). When the Defendants Matteson,

Joule, WaterSound, Watercolor and Lilienthal generated new hand out lists with John

Carroll’s name removed, while knowing that the St. Joe Company controlled DRB did

not remove his name, the defendants committed a libel against Carroll. When they

verbally spread the falsehoods it was slander. When they acted together with a

17

continuity of purpose they engaged in a civil conspiracy. A libel of this character tends

to impune qualities upon Carroll that he is unfit in his trade which is libel per se.

These Defendants knowingly orchestrated sham acts under the color of propriety,

generated false publications which would tend to injure Carroll in his trade, and passed

these falsehoods verbally as well.

The Defendants hired a surveyor to enter Carroll’s property and conduct an

inspection without notice to Carroll. This was a clear violation of the Covenants.

Carroll alleged that the defendants acted covertly because it would help them prepare

and publicize a false survey. The facts show that the defendants succeeded. This court

need only consider the allegations on their face to see that this was an intentional and

cooperative tort. The record shows:

1) The Defendants selected a surveyor without informing Carroll.

2) The surveyor entered Carroll’s home while he and his crew were on lunch

break.

3) The surveyor prepared a faulty survey which did not meet the basic

statutory thresholds.

4) The Defendants asked Carroll to help them offsite while unbeknownst to

Carroll they held a meeting to discuss Carroll’s construction being in violation of the

18

height ordinance.

5) Carroll’s home was not listed on the meeting agenda.

6) The Defendants reduced their discussion of Carroll’s home being in

violation and in need of being torn down to writing.

7) The Defendants published their sham false statements to the World Wide

Web.

8) The Defendants waited until all of those acts were completed before they

notified Carroll that they had performed the acts.

9) Carroll immediately recognized that the survey was facially inaccurate

and notified the surveyor that he knew it was a sham document.

10) The surveyor created a revised survey without even going to the site.

11) The Defendants published a revised statement to the World Wide Web

saying that Carroll’s construction was still in violation and needed to be torn down.

12) The Defendants have never published a retraction to the World Wide Web

or Carroll’s neighbors and peers.

Because Lilienthal and WaterSound held a fiduciary duty to Carroll, and took

part in and aided the other Defendants in these acts, he breached his fiduciary duty to

Carroll.

19

Every Realtor, neighbor and peer of Carroll knew they were talking about

Carroll and his construction (R Addendum Volume 30 Transcript Pages 40-41).

The defense concedes that they published the statements to the World Wide Web (R

Addendum Volume 30 Transcript page 25 center of page). The defense didn’t

share with the court the last part of that publication which read:

“Some compliance issues were addressed including the tower

being built next to the Yacht Pond. Tracy told the board that the

contractor was a few inches from being out of code, but until he actually

went over, there wasn’t too much they could do. The Design and Review

board has requested that the contractor hand over his new set of prints on

the project for further inspection. Gary Shipman advised to have the

building surveyor back out for another report and to ask Billy Bearden for

assistance. Gary suggested that unless the contractor is granted a

variance, he would have to tear it down. Gary would have the board

write a letter to the county opposing the variance.” (R 640 bottom)

The Defendants were all seasoned professionals who knew the survey was false,

and that their actions violated the Covenants and the law. This meeting was a sham.

Carroll prays the justices of the 1st District Court of Appeal will reverse the

20

lower tribunal’s Order which granted summary judgment and released the Defendants

of all liability to Carroll for their acts.

II. A DE �OVO REVIEW WILL SHOW THAT THE CIRCUIT

COURT ABUSED ITS DISCRETIO� A�D MISAPPLIED THE

LAW WHE� IT GRA�TED THE DEFE�DA�TS’ MOTIO� TO

DISMISS THE PLAI�TIFF’S CLAIMS.

The 2nd Amended Complaint must speak for itself here as a matter of law. If this

court finds that an element is lacking, I believe the lower tribunal abused its discretion

by not allowing a revision as to an element.

Carroll prays you recognize the lower tribunal’s misapplication of the law as it

relates to this complaint, and as such issue a reversal of the Order dismissing any of

Carroll’s claims.

III. A DE �OVO REVIEW WILL SHOW THAT THE CIRCUIT

COURT ABUSED ITS DISCRETIO� A�D MISAPPLIED THE

LAW WHE� IT DE�IED THE PLAI�TIFF’S MOTIO� FOR

LEAVE TO AME�D THE PLEADI�GS TO SEEK PU�ITIVE

DAMAGES.

The lower tribunal misapplied the law when it interpreted §768.72 and Florida

Rule of Civil Procedure 1.190(f). In Florida a party must conduct discovery, then seek

leave to amend the pleadings in order to add a claim for punitive damages. In this

21

case, the defendants stalled Carroll’s discovery requests until after he filed his second

amended complaint. Carroll’s first opportunity to add his claim for punitive damages

was after the court ruled that he could no longer amend.

Carroll’s Motion for Leave to Amend the Second Amended Complaint to Add a

Claim for Punitive Damages with Supporting Memorandum of Law and Proffer of

Evidence (with attached original Third Amended Complaint) (R 1187) must speak for

itself. Carroll simultaneously filed a Motion to Compel the Defendants to Complete

Florida Form 1.977 – Financial Facts Information Sheet (R 1674) which should have

completed Discovery regarding Punitive Damages.

Carroll’s Motion met the pleading thresholds required by §768.72 and

Florida Rule of Civil Procedure 1.190(f):

”768.72 Pleading in civil actions; claim for punitive damages.—

(1) In any civil action, no claim for punitive damages shall be permitted

unless there is a reasonable showing by evidence in the record or

proffered by the claimant which would provide a reasonable basis for

recovery of such damages. The claimant may move to amend her or his

complaint to assert a claim for punitive damages as allowed by the rules

of civil procedure. The rules of civil procedure shall be liberally

construed….”

Carroll sought punitive damages in a variety of his causes including Libel and

Slander, Breaches of Contract and Fiduciary Duty, Negligence, etc. The proffer of

22

evidence threshold under one of Carroll’s claims, Negligence, is set to an enhanced

standard. see Carraway v. Revell, 116 So. 2d 16 – Fla. Supreme Court 1959 To meet

the evidentiary burden mandated by Florida Statute, Carroll’s Motion included (55)

pages of Motion and Proffer of Evidence, and then included (429) pages of Evidence

Exhibits.

Carroll’s Motion met all the burdens of Florida Statute 768.72. There was a

structural problem for Carroll which can only be defined as “procedural vs

substantive”. The procedural vs substantive conflict rested in the progress of this case.

Carroll was met with stiff resistance to any and all discovery on the part of the

Defendants during the first 14 months of the case. The case docket shows that Carroll

sought the Court’s assistance no less than 4 times to compel any meaningful discovery

on the part of the Defendants (R Progress Docket for lower tribunal).

The Defendants allowed no meaningful discovery until after Carroll filed his

current complaint (the 2nd Amended). In other words, Carroll’s Motion for Leave to

Amend Adding a Claim for Punitive Damages was his first Amendment since any

meaningful Discovery. The lower tribunal did not deny Carroll’s motion on its merits.

The lower tribunal denied Carroll’s motion because it might delay trial by 30 to 60

days. From the hearing at (R 4616):

Mr. Carroll: .. .. .. ..I worked very hard to discover evidence in this case

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over motion after motion to compel discovery from the defendants, and

it's only within the last five months that I started getting all of these

documents, et cetera, 4,000 pages that are relevant to this case. That's all

I have, Your Honor.

THE COURT: I'm going to find that we're at a point where discovery has

been closed and this motion is untimely, so I would deny it -- that motion.

This is basic error. It’s been a year since the court’s denial, and trial still has not

occurred.

Carroll prays the judges of the 1st DCA reverse the lower tribunal’s order which

denied Carroll’s Motion for Leave to Amend with instructions to the lower court to

accept Carroll’s Motion for Leave with a reasonable amount of time to conduct

financial discovery regarding net worth, etc.

IV. THE CIRCUIT COURT ABUSED ITS DISCRETIO� WHE� IT

DE�IED THE PLAI�TIFF’S MOTIO� FOR LEAVE TO ADD

PARTIES.

This case may have the largest progress docket of any case in Walton County

history (R Progress Docket for lower tribunal). It involves claims of civil

conspiracy. The deposition testimony of the Chairman of the Design Review Board

shows that the St. Joe Company and their CEO were directly involved in the acts and

conspiracy (R 3059). Carroll made a Motion to Add Party Defendants William Britt

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Greene and the St. Joe Company (R 4500). St. Joe and their CEO would replace John

and Jane Doe as Defendants. This would avoid the parties and the court having to

litigate the entire case twice (very complicated in a civil conspiracy case). The lower

tribunal denied Carroll’s motion to add parties on June 14, 2011 (R 4612).

It is Carroll’s complete belief that, under identical circumstances, any reasonable

judge would have granted Carroll’s Motion to add Party Defendants. Carroll

respectfully requests that this court consider the judge’s position, the substantial

pleadings, Florida Rules of Civil Procedure, and all of the discovery to determine that

the lower court abused its discretion when it denied Carroll’s Motion.

CO�CLUSIO�

For the above-mentioned reasons, Carroll contends that the trial court committed

error and abused its discretion by dismissing some of Carroll’s well pleaded claims

with prejudice, granting the Defendants’ motions for final summary judgment, denying

Carroll’s Statutory right to amend his pleadings to seek punitive damages, and denying

Carroll’s motion to add party defendants. Carroll requests that this Court reverse the

trial court’s orders and remand with instructions for the way ahead.

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Respectfully submitted,

_____________________________

John P. Carroll, pro se

Box 613524

WaterSound, FL 32461

(850) 231-5616 - phone

(850) 622-5618- fax

AAbsolute@aol.com

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 4th day of June,

2012.

_____________________________

John Carroll, pro se

Box 613524

WaterSound, FL 32461

(850) 231-5616 - phone

(850) 622-5618- fax

AAbsolute@aol.com

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

AAbsolute@aol.com

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