WaterSound Declaratory Judgement Secreted Inspections

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
IN AND FOR WALTON COUNTY, FLORIDA

CIVIL DIVISION
JOHN P. CARROLL,
Plaintiff, Case No.: 09CA002021

v.
WATERSOUND BEACH COMMUNITY ASSOCIATION, INC.,

Florida Corporation
DAVID LILIENTHAL, individually
and as Director,
MARY JOULE,
SANDRA MATTESON,
RONALD VOELKER,
JOHN DOE, JANE DOE, and OTHER UNKNOWN
CONSPIRATORS
Defendants.
____________________________________________/
PLAINTIFF’S MOTION AND/OR PETITION FOR

DECLARATORY JUDGEMENT-SECRETED INSPECTIONS
Plaintiff, JOHN CARROLL (“Plaintiff”), pursuant to Florida Statute 86.011,
requests this Court determine the construction, right, procedure, lien rights, enforceability
terms and validity of Defendants’ WaterSound Beach Community Association, Inc.
(“WaterSound”), Board of Director David Lilienthal (“Lilienthal”), Mary Joule
(“Joule”), Ronald Voelker ( “Voelker“) and Sandra Matteson’s (“Matteson”) acts of
retaining and conducting an inspection of the construction at Lot 24, Phase IV
WaterSound Beach without prior Notice to Plaintiff.
1. Venue is proper in this Court as venue has previously been conferred to
this Court in this action, all parties to this action are located in this jurisdiction, the
documents to be construed have been recorded in the Walton County Official Records,
the property that is the subject matter of this action is located in Walton County and the
1
actions that are the subject matter of this suit occurred in Walton County.
2. WaterSound is a community located within Walton County which is
encumbered by Declarations of Covenants, Conditions and Restrictions (hereinafter
“Conditions”) first recorded in the Official Records of Walton County on September 10,
2001. (Exhibit A)
3. WaterSound has recorded additional Covenants, Conditions and
Restrictions into the Official Records of Walton County, however none mention the Right
to Notice of Design or Construction Claims provision or any similar provision that is the
subject of this declaratory action.
4. At some point prior to May 16, 2008, an unknown party involved with
WaterSound ordered an inspection of the construction at Lot 24 from Voelker who
entered upon Lot 24, conducted an inspection and produced a Special Purpose Survey
which purported to certify the height of the construction improvements thereon. (Exhibit
B)
5. The act of ordering and conducting such an inspection is controlled by the
Condition’s Articles 10.7 and 10.8 which read in their entirety;
10.7. Easement to Inspect and Right to Correct.
Declarant reserves for itself and others it may designate the right, but not the
obligation, to inspect, monitor, test, redesign, and correct any structure, improvement, or
condition on any portion of WaterSound, including Lots, and a nonexclusive easement of
access throughout the Community to the extent reasonably necessary to exercise such
right. Declarant’s rights and easement in this regard shall not in any way assign or
diminish an Owner’s responsibility for the maintenance and care of his or her Lot.
2
Except in an emergency, entry onto a Lot shall be only after reasonable notice to
the Owner and no entry into a dwelling or other structure on a Lot shall be permitted
without the Owner’s consent, which consent shall not unreasonably be withheld,
conditioned, or delayed. The failure or refusal to permit reasonable access to the Lot for
the purposes contemplated under this paragraph shall excuse Declarant or its designee
from responsibility for repairs or damages relating to defective workmanship or
materials. The Person exercising this easement shall promptly repair, and pay for,
any resulting damage. (Emphasis added)
10.8 Right to Notice of Design or Construction Claims.
No Person shall retain an expert for the purpose of inspecting the design or
construction of any structures or improvements within WaterSound in connection with or
in anticipation of any potential or pending claim, demand, or litigation involving such
design or construction unless Declarant and any Builder involved in the design or
construction have been first notified in writing and given an opportunity to meet with the
property Owner and conduct an inspection.
6. Plaintiff is and was the Owner and the Builder of Lot 24.
7. Plaintiff was given no notice that the inspection was ordered.
8. Plaintiff was given no notice that Voelker would be entering upon Lot 24.
9. Plaintiff did not give consent to allow Voelker to enter upon Lot 24.
10. Voelker and possible others entered into the structure to perform the
inspection or testing without Plaintiff’s consent which is strictly prohibited.
11. Plaintiff encountered Voelker at the corner of Lot 24 on May 16, 2008.
12. May 16, 2008, Plaintiff asked Voelker what he was doing at the Southwest
3
corner of Lot 24. Voelker intentionally misled Plaintiff by stating that he was conducting
a survey several Lots away and was looking for his reference point.
13. Voelker’s Special Purpose Survey was issued to WaterSound and other
unknown parties who used the Survey to declare Plaintiff in violation of WaterSound and
Walton County height regulations. (Exhibit C)
DECLARATORY JUDGEMENT
14. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 1 through 12 as if fully set forth herein.
15. An actual controversy exists between Plaintiff and WaterSound as to
whether WaterSound is entitled to enter upon Lots within WaterSound, or instruct others
to do so, as described herein.
16. To protect its rights and interests, Plaintiff requires a Declaration that
WaterSound does not have the authority to commit the acts described herein.
WHEREFORE, Plaintiff requests this Court take jurisdiction over this matter and
enter judgement as follows:
17. That this Court determine and declare that WaterSound does not have the
legal right or authority to enter upon Lots within WaterSound without following the
Condition’s in strict conformance.
18. In accordance with F.S. 86.061, allow Plaintiff to request supplemental
relief, by Motion, if the Court grants Declaratory Judgement.
19. Grant such other further relief as may be just and proper.
I HEREBY CERTIFY that a copy of the foregoing has been furnished to
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CHRISTOPHER L. GEORGE, ESQ. and Mark Davis, Esq. by regular mail this 14th day
of January, 2010.
_____________________________
John P. Carroll
Box 613524
WaterSound, FL 32461
Tel: (850)231-5616
Fax: (850)622-5618
Dated: January 13, 2010

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IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

IN AND FOR WALTON COUNTY, FLORIDA

Plaintiff, Case No.: 09CA002021

WATERSOUND BEACH COMMUNITY ASSOCIATION, INC.,

PLAINTIFF’S MOTION AND/OR PETITION FOR

Plaintiff, JOHN CARROLL (“Plaintiff”), pursuant to Florida Statute 86.011,

terms and validity of Defendants’ WaterSound Beach Community Association, Inc.

(“WaterSound”), Board of Director David Lilienthal (“Lilienthal”), Mary Joule

(“Joule”), Ronald Voelker ( “Voelker“) and Sandra Matteson’s (“Matteson”) acts of

retaining and conducting an inspection of the construction at Lot 24, Phase IV

WaterSound Beach without prior Notice to Plaintiff.

1. Venue is proper in this Court as venue has previously been conferred to

2. WaterSound is a community located within Walton County which is

encumbered by Declarations of Covenants, Conditions and Restrictions (hereinafter

3. WaterSound has recorded additional Covenants, Conditions and

subject of this declaratory action.

WaterSound ordered an inspection of the construction at Lot 24 from Voelker who

5. The act of ordering and conducting such an inspection is controlled by the

Condition’s Articles 10.7 and 10.8 which read in their entirety;

10.7. Easement to Inspect and Right to Correct.

condition on any portion of WaterSound, including Lots, and a nonexclusive easement of

from responsibility for repairs or damages relating to defective workmanship or

any resulting damage. (Emphasis added)

10.8 Right to Notice of Design or Construction Claims.

construction of any structures or improvements within WaterSound in connection with or

in anticipation of any potential or pending claim, demand, or litigation involving such

property Owner and conduct an inspection.

7. Plaintiff was given no notice that the inspection was ordered.

inspection or testing without Plaintiff’s consent which is strictly prohibited.

Walton County height regulations. (Exhibit C)

Paragraphs 1 through 12 as if fully set forth herein.

15. An actual controversy exists between Plaintiff and WaterSound as to

to do so, as described herein.

enter judgement as follows:

Condition’s in strict conformance.

18. In accordance with F.S. 86.061, allow Plaintiff to request supplemental

relief, by Motion, if the Court grants Declaratory Judgement.

I HEREBY CERTIFY that a copy of the foregoing has been furnished to

Dated: January 13, 2010

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