Appellant's Reply Brief Against WaterSound's Benefited Assessment E Filed

8/8/2019 Appellant's Reply Brief Against WaterSound's Benefited Assessment E Filed

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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., WATERCOLORCOMMUNITY ASSOCIATION, INC.,

SANDRA MATTESON, DAVID LILIENTHAL,

RONALD VOELKER, MARY JOULE,

JOHN DOE AND JANE DOE,

Defendants/Appellees.

______________________________/

ON APPEAL FROM THE CIRCUIT COURTOF THE FIRST JUDICIAL CIRCUIT,

IN AND FOR WALTON COUNTY, FLORIDA

CASE NUMBER 2009 CA 002021

___________________________________________________________________

APPELLAT'S REPLY BRIEF

___________________________________________________________________

John P. Carroll, Pro Se

Box 613524

WaterSound, FL 32461

Telephone 850-231-5616

Facsimile 850-622-5618

[email protected]

E-Copy Received Dec 16, 2010 9:2


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TABLE OF COTETS

TABLE OF

CONTENTS................................................................................................................i

SUMMARY OF

ARGUMENT.............................................................................................................1

ARGUMENT IN RESPONSE AND REBUTTAL...1

CONCLUSION..........................................................................................................2

CERTIFICATE OF

SERVICE...................................................................................................................3

CERTIFICATE OF

COMPLIANCE..........................................................................................................3

i


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SUMMARY OF ARGUMET

WaterSounds Answer Brief contains a Statement of the Case that extends

beyond relevance to this appeal. In response, I only point out that the Lower Tribunal

has denied WaterSound, Matteson, Lilienthal, Voelker and Watercolors Motion to

Dismiss on 8 of the 10 Counts in the underlying case. (R 1)

To the issues in this appeal, WaterSound and the other Appellees are incorrect.

This appeal should be reviewed de novo. The lower tribunal misapplied the

WaterSound covenants and the law. WaterSound admitted clearly and distinctly on

record,

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. (T 12)

Florida Statute and WaterSounds Covenants are clear. It is against the law

for WaterSound to lien Lot 24 for any fine.

ARGUMET I RESPOSE AD REBUTTAL TO ASWER BRIEF

To Appellees Section A. Standards of Review: At page 3 of the Answer Brief,

Appellees argue against a de novo review. The lower tribunal misapplied the law. The

lower tribunal also misunderstood the clear and unambiguous terms of the WaterSound

1.


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Covenants. As fully presented in Carrolls initial brief, Florida Statute prohibits HOA

fines being expressed as liens. As fully presented in Carrolls initial brief,

WaterSounds Covenants prohibit benefited assessments being expressed in any way

close to the way WaterSound has liened Lot 24.

COCLUSIO

For the above-mentioned reasons, and those more detailed in the initial brief,

Carroll shows 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 courts denial of Injunction and remand with instructions for the immediate

issuance of the injunction.

Respectfully submitted,

_____________________________

John P. Carroll, pro seBox 613524


(850) 231-5616 - phone

(850) 622-5618- fax

[email protected]

2.


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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 toMark D. Davis, Esq., 694 Baldwin Ave. Suite 1, PO Box 705, DeFuniak Springs, FL

32435, and to Gary Shipman, Esq., 1414 County Highway 283 South, Suite B, Santa

Rosa Beach, FL 32459, Attorneys for Appellees, by hand delivery or certified mail this

16th

day of December, 2010.

_____________________________

John Carroll, pro se

Box 613524


(850) 231-5616 - phone

(850) 622-5618- [email protected]

CERTIFICATE OF COMPLIACE

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


(850) 231-5616 - phone

(850) 622-5618- fax

[email protected]

3.


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TABLE OF COTETS

Transcripti

Record 1.............................................................................................................ii


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Transcript i

1 IN THE CIRCUIT COURT IN AND FOR OKALOOSA COUNTY,

2 FLORIDA

3JOHN P. CARROLL,

4

5 Plaintiff,

6 vs. CASE NO. 09-CA-2021

7 WATERSOUND BEACH COMMUNITYASSOCIATION, et al,

8

9 Defendant.

10

11 _____________________________________________________

12 PROCEEDINGSJune 14, 2010

13 9:00 a.m.Walton County Courthouse Annex

14 DeFuniak Springs, Florida

15BEFORE: The Honorable Howard LaPorte

16 Circuit Judge

17

18 _____________________________________________________KATHRYN B. PEACOCK

19 Court Reporter1009 Ridgewood Cove, S.

20 Niceville, Florida 32578(904)897-2864

21

22

23

24

25

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864


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2

1

2 APPEARANCES

3JOHN CARROLL

4 Post Office Box 613524Watersound, FL 32461

5 Plaintiff Pro Se

6 CHRISTOPHER L. GEORGE, ESQUIREAttorney at Law

7 Post Office Box 1034Mobile, AL 36633

8 For the Defendant Watersound

9 MARK DAVIS, ESQUIREAttorney at Law

10 Post Office Box 705DeFuniak Springs, FL 32435

11 For the Defendant Voelker

12

13 INDEX

14 CERTIFICATE OF REPORTER 51

15

16

17

18

19

20

21

22

23

24

25



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3

1 THE COURT: We are convened on Case 09 CA

2 2021. Plaintiff is present. And counsel for

3 Watersound and Voelker are both present.

4 MR. GEORGE: Yes, sir.

5 MR. DAVIS: That's correct.

6 THE COURT: We had down on the schedule

7 that it's plaintiff's motion for injunction,

8 but the notice of hearing appears to be on the

9 plaintiff's motion for summary judgment.

10 MR. CARROLL: The motion for an injunction

11 was on the summary judgment. Your Honor, I

12 filed a declaratory action, asked for a summary

13 judgment. I couldn't get it set for a hearing,

14 so I felt I needed to file a motion for

15 injunction.

16 THE COURT: So why are we here?

17 MR. CARROLL: I believe that we're here

18 for the injunction and the summary judgment on

19 the same exact matter. It's about a benefited

20 assessment in Watersound Beach.

21 THE COURT: Okay. All right. Will you be

22 taking testimony?

23 MR. CARROLL: No, Your Honor.

24 THE COURT: You will not?

25 MR. CARROLL: No.



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1 motion to dismiss and for protective order I

2 filed and a motion for case management order

3 that counsel for the codefendant filed. I,

4 like you, saw on the notice of hearing it said

5 something about a motion for summary judgment,

6 and we checked with your office, and we were

7 told that the only thing set today as far as

8 plaintiff's motion was the motion for

9 injunction. So we have not responded to his

10 motion for summary judgment yet, and I really

11 didn't come here today prepared to argue that

12 motion for summary judgment. Had I known it

13 was set, I would have filed something saying we

14 probably ought to conduct a little discovery

15 before that's heard. We haven't gotten

16 responses to our discovery request in yet.

17 We've conducted no depositions yet. I would

18 think it would be premature, and I would have

19 filed something telling the Court that if I

20 thought that motion was set today, that summary

21 judgment.

22 THE COURT: Well, the notice of hearing

23 dated March 31st from Mr. Carroll indicates

24 that the hearing would be on the petition for

25 injunction related to the motion for summary



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1 judgment on declaratory relief. So I guess

2 that puts you on notice that there's a petition

3 for injunction and petition for summary

4 judgment.

5 MR. CARROLL: If I may, Your Honor.

6 THE COURT: Yes.

7 MR. CARROLL: I tried to set that motion

8 to be heard -- my summary judgment to be heard.

9 I got Mr. George on the telephone with your

10 judicial assistant, and he wouldn't allow me to

11 set the summary judgment and that's why I filed

12 the motion for injunction. I felt it needed

13 relief and injunctive relief related to the

14 summary judgment. I sure didn't want to take

15 up the Court's docket with a whole big filing,

16 so I limited it to the injunction based on the

17 summary judgment. I'm not sure why Mr. George

18 didn't want to set that summary judgment for

19 hearing.

20 MR. GEORGE: Well, if I could explain,

21 Judge, what we told your assistant and what we

22 told Mr. Carroll when we had him on the phone

23 was we believe the hearing on a summary

24 judgment was premature. I mean, I filed

25 written discovery back in January. I don't



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1 have answers yet. We haven't conducted the

2 first deposition. We just haven't built any

3 kind of evidentiary record yet from which he

4 could argue a summary judgment or I could

5 oppose it. That's why I didn't agree to set a

6 summary judgment. It was my understanding we

7 were here today on a motion for injunction. I

8 mean, I'll do the best I can if Your Honor

9 wants to proceed with the summary judgment.

10 But again, I would submit it's somewhat

11 premature until we get a little discovery

12 behind us.

13 THE COURT: All right. Mr. Carroll, your

14 notice of hearing says petition for injunction

15 related to the motion for summary judgment. So

16 if you'll go forward.

17 MR. CARROLL: Okay. Your Honor,

18 Watersound Beach is a community that's governed

19 by restrictive covenants. They've been

20 recorded. My motion for summary judgment and

21 related injunction talks specifically to those

22 documents that have been recorded in the public

23 record of Walton County, and with specificity

24 on this summary judgment, it only pertained to

25 one thing and it's what's called -- it's what



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1 the defendants are calling a benefited

2 assessment, which is an assessment that they're

3 leveeing against my property in Watersound

4 Beach of $1,000 per month. It's a recurring

5 assessment. I'm the first one in Watersound

6 that has ever had that assessment placed

7 against their property. And what my problem,

8 my issue, my legal issue with the whole thing

9 is, in order for the community to levy

10 assessments against individual properties,

11 they've got to follow the restrictive

12 covenants. The restrictive covenants are very

13 clear on the procedures they need to follow.

14 The community didn't follow those procedures.

15 What the restrictive covenants say at Section

16 8.5 is that the association may levy benefited

17 assessments against one or more particular lots

18 to cover the costs of providing special

19 services to that lot or to cover costs incurred

20 in bringing lot in compliance. That's the only

21 two reasons that they could apply benefit

22 assessment. Both of those are related to

23 recovering costs. What the community has done

24 though is they've really issued a fine so to

25 speak. They call it a benefited assessment,



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1 and it continues to accrue as a lien against my

2 property every month for $1,000, but there is

3 no benefit. There is no cost. The community

4 is not giving special services to Lot 24, and

5 the community is not bringing Lot 24 into

6 compliance. The community is just issuing a

7 recurring $1,000 per month fine at no cost to

8 them and at no benefit to Lot 24. In order for

9 the community to issue a benefited assessment,

10 they have to read the by-laws, which are

11 recorded. And they say that if you want to

12 issue a benefited assessment at Section 3.24(a)

13 it says you must send a notice that describes

14 the process for a hearing. That same notice

15 says that it should be imposed unless the

16 alleged violator elects a hearing. And the

17 last part is, it says the covenants committee

18 must approve the fine by a majority vote.

19 They've put the cart way in front of the horse.

20 There is no covenants committee to issue a

21 benefits assessment. That's at Section 5.2 of

22 the by-laws that are recorded. It says the

23 board shall appoint a covenants committee

24 consisting of at least three members. None of

25 the members can be board members or family



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1 members. Watersound has no covenants

2 committee. What's happened here is the board

3 itself, the board of directors, has issued

4 $1,000 a month recurring fine that's accruing

5 as a lien against the property. Those same

6 individuals who levied the fine are now

7 stepping in as the judge -- the covenants

8 committee. They've given me no chance for a

9 hearing. And most importantly, it's selective

10 enforcement. There are at least 40 homes in

11 the community who have all gone over 16 months

12 in construction time and yet they've never

13 levied this benefits assessment against anyone

14 but myself. I don't understand where they get

15 their authority. I've protested and I

16 protested in writing and asked them how do you

17 derive your authority. Give me the chance and

18 opportunity to explain. There are extenuating

19 circumstances. And show me your costs you've

20 incurred. I've got no response and yet this

21 lien continues to accrue at $1,000 per month.

22 What I'm here today for now, I wish were for

23 the summary judgment, but if it means it's just

24 for an injunction, I'd like to ask this Court

25 to issue an injunction stopping them from



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1 continuing to accrue this $1,000 a month

2 assessment against my lot for something they

3 have no authority to do. And I'm asking the

4 Court to stay or remove the lien that's been

5 expressed against my property for that $1,000 a

6 month and that's all. I believe it's a real

7 simple issue, and I think it's time for a

8 summary judgment. I can't think of a bit of

9 discovery that has to occur. I mean, the

10 summary judgment explains and shows yes,

11 they've billed me every month, included in

12 which my summary judgment are the covenants and

13 restrictions, included in which is the specific

14 enforcement angle that shows at least 30

15 different jobs who have all gone over the time

16 limit but yet haven't been fined a penny. And

17 I think it's proper to seek injunctive relief

18 in this case. We don't have time to go to

19 trial in two years and talk about this

20 recurring lien. It's affecting the closing,

21 the refinance closing on my property. That's

22 all I have, Your Honor.

23 THE COURT: All right.

24 MR. GEORGE: Just a few things, Judge.

25 First of all, he has made a lot of assertions



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1 for which there is no evidence in the record

2 yet. I think the most crucial ones are that

3 he's the first one to have an assessment

4 against him. There's no evidence in his motion

5 for summary judgment to establish that. The

6 second one is Watersound has no covenants

7 committee. Again, there's no evidence in the

8 record to support that assertion, and they do

9 have a covenants committee. He's also

10 mentioned, and I think rightfully so, on

11 occasion some homebuilders are allowed to go

12 beyond the 16-month period for constructing a

13 home. That's what we're really dealing with,

14 Judge. The covenants say, if you're going to

15 build a home in this subdivision -- and he

16 cites this part of the covenants in his

17 motion -- you have 16 months to finish that

18 home. If you don't, then they're going to levy

19 a $1,000 a month fine against you for every

20 month you go over. There is a process that a

21 builder such as Mr. Carroll can apply for an

22 extension for a longer time to complete a home.

23 And in fact, on this lot that he's complaining

24 about, Lot 24, Mr. Carroll requested and was

25 granted a four-month extension. So he was



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1 given not 16 months but 20 months to finish

2 constructing the home on that lot. He hasn't

3 finished in that 20 month period, and as such,

4 he's been fined $1,000 a month since that time.

5 Now, as he mentioned, this fine at this point

6 takes the form of a lien on the property.

7 They're not forcing him to pay. They haven't

8 started any action to try to collect that. And

9 I think that's important because, you know, in

10 order to get injunctive relief, he's got to

11 show that he has no adequate remedy and he's

12 going to suffer irreparable harm if the relief

13 he seeks isn't granted. I don't think he can

14 make that showing, Judge. Also, as he noted,

15 Section 3.24 of the covenants say that once

16 he's given notice of this assessment, which he

17 was given by virtue of the fact that he got a

18 four-month extension, and they wrote him and

19 said, all right, we grant you the four month

20 extension. You have 20 months to finish. If

21 you don't finish in 20 months, we're going to

22 start fining you $1,000 a month. He received

23 that letter, and he was aware then that after

24 the 20 months, he started getting fined. The

25 by-laws say that if a builder, such as



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1 Mr. Carroll, wants to contest any kind of a

2 penalty against him, there's a procedure for

3 doing that. There's a set time limit for

4 filing for an appeal with the covenants

5 committee. He's not done any of that. So he

6 hasn't taken the steps to get the relief that

7 might have been available to him. He let that

8 time period expire. And by doing so, I contend

9 he's waived any right to contest that

10 assessment. But more importantly, I think all

11 of that is wrapped up in all of the facts of

12 this case. What this case really boils down

13 to, Judge, is Mr. Carroll is claiming that he

14 was treated wrongfully and that Watersound and

15 it's governing committees and Board of

16 Directors treated him differently than every

17 other builder out there and somehow enforced

18 covenants and restrictions against him that

19 they didn't against anybody else. We are going

20 to be able to establish through the course of

21 discovery that that's just not the case. I

22 find it kind of disconcerting that Mr. Carroll

23 says, no, I don't think we need any discovery.

24 When we first started this case he told me he

25 wanted to depose over 40 people with Watersound



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1 and other builders and things of that nature.

2 And I think that discovery is going to prove,

3 and even the files we produced to him, prove

4 that we have levied fines against other

5 builders, significant fines for the same kind

6 of thing. There have been times when they

7 grant builders extensions. And I just think

8 based on the state of the evidence you have in

9 front of you now, his motion for summary

10 judgment, if the Court is going to entertain

11 that today, it's due to be denied and so is his

12 motion for injunction.

13 MR. DAVIS: Judge, just briefly, my

14 argument is fairly brief to the extent it

15 applies. I don't think any motion can be

16 granted until the motion is sworn to. There

17 are no affidavits in the file. None of the

18 documents have been presented, have in any way

19 been entered into evidence with any kind of --

20 in any manner, and just on the procedural

21 standpoint, I think you should deny the motion.

22 THE COURT: All right. Mr. Carroll, I'll

23 hear from you, and I'm still a little confused.

24 Are you intending on moving on the motion for

25 injunction and the motion for summary judgment?



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1 Are we going on both of those today?

2 MR. CARROLL: I'm sorry, Your Honor. I

3 think it would be prejudice to Mr. George. I'm

4 only here on the injunction.

5 THE COURT: Okay. Just so that I

6 understand and everybody else understands.

7 We're here on the motion for and -- the

8 injunction. And you will now have the last

9 word on that.

10 MR. CARROLL: Your Honor, my motion for

11 summary judgment and the injunction, which was

12 attached to the summary judgment, included

13 Exhibit B, which has been delivered to everyone

14 in here.

15 THE COURT: Is that in here?

16 MR. CARROLL: Yes.

17 THE COURT: Okay. I don't need another

18 copy.

19 MR. CARROLL: It's the letter from

20 Watersound Beach Community to me saying that

21 our records indicate your house is about to go

22 over the time limit. And it says in that same

23 letter on June 2nd, 2006, the homeowner's

24 association passed a resolution that allows the

25 neighborhood to collect $1,000 a month. It



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1 tells me not that you've got a right to a

2 hearing like the covenant says or that you've

3 got, for that matter, that it's coming from the

4 covenants committee. It's a letter from the

5 board of directors and the DRB saying you've

6 got four months to finish your house. That's

7 all there is to it. No hearing, no nothing.

8 There has never been any kind of letter that

9 come from the community that said we're giving

10 you four more months, but after that we're

11 going to fine you. It was this letter,

12 July 29th, 2009 from the community saying

13 starting on July 31st, which was two days after

14 the date of the letter, in two days we're going

15 to start fining you $1,000 a month. The

16 defendants generated this letter to me. I

17 didn't generate the letter to them. I also

18 included as exhibits, Exhibit C, which was the

19 June 2nd, 2006 meeting where they supposedly

20 formed this new benefited assessment. There's

21 nothing in the minutes. It's in the court

22 file. There's nothing in the minutes that said

23 they created a new benefited assessment at all.

24 I included in my motion Exhibit E, Exhibit F,

25 Exhibit G -- they go on and on -- 30 different



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1 jobs showing the date the neighborhood approved

2 the job to start; the date of the permit; the

3 date of the final completion, which was well

4 beyond 16 months, and none of those jobs were

5 fined. I went through the entire court file.

6 And the entire file for every job, there's no

7 fines have never been done. And what I was

8 telling the Court is I'm the first one to ever

9 have been fined this amount. It's 100 percent

10 true. No one was ever fined $1,000 a month

11 before me in the history of the neighborhood.

12 And my motion describes it, explains it, proves

13 it. My documents and my exhibits attached

14 explain it, and I swear to everything in there.

15 I'm the person who's being fined $1,000 a month

16 by the neighborhood, and I'm here to tell you

17 they're fining me and it's being expressed as a

18 lien, and I showed in my filing that when I

19 went to do my refinance closing, they

20 submitted -- the defendants submitted an

21 invoice over to the title company saying if you

22 want your title cleared, you need to pay these

23 assessments, and it's in there, and that's why

24 I'm asking for injunctive relief. Again, I

25 can't -- it's not adequate for me to wait two



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1 years to get this resolved. I need to have it

2 resolved at this time.

3 THE COURT: All right. Thank you. I will

4 take the motion for injunctive relief under

5 advisement. Do y'all want to wait now until

6 10:00 to start the next or do you want -- you

7 have some other motions. You want to move

8 right into those?


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Documents

Appellant's Reply Brief Against WaterSound's Benefited Assessment E Filed