E-Copy Received Jul 29, 2010 8:56 AM

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
___________________________________________________________________

APPELLAT'S IITIAL BRIEF

___________________________________________________________________

John P. Carroll, Pro Se

Box 613524
WaterSound, FL 32461
Telephone 850-231-5616
Facsimile 850-622-5618
AAbsolute@aol.com
 TABLE OF COTETS

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 ITERPRETED
THE DECLARATIO OF COVEATS, CODITIOS AD
RESTRICTIOS FOR WATERSOUD.
…………10

II. A DE OVO REVIEW WILL SHOW THAT THE CIRCUIT

COURT MISAPPLIED THE LAW WHE IT ITERPRETED
FLORIDA STATUTE 720
…………16

III. THE CIRCUIT COURT ABUSED ITS DISCRETIO WHE IT

DEIED CARROLL’S PETITIO FOR IJUCTIO.
……..…..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
 PRELIMIARY STATEMET

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
 STATEMET OF THE CASE AD 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 ARGUMET

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

ARGUMET

I. A DE OVO REVIEW WILL SHOW THAT THE CIRCUIT

COURT MISAPPLIED THE LAW WHE IT
ITERPRETED THE DECLARATIO OF COVEATS,
CODITIOS AD RESTRICTIOS FOR WATERSOUD.

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
ITERPRETED 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 DEIED CARROLL’S PETITIO FOR IJUCTIO.

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.

COCLUSIO

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
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 29th day of July,
2010.
_____________________________
John Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
AAbsolute@aol.com

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
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
AAbsolute@aol.com
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