I THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

I AD FOR WALTO COUTY, FLORIDA

CIVIL DIVISIO

JOH P. CARROLL,

Plaintiff, Case o.: 09CA002021

v.

WATERSOUD BEACH COMMUITY ASSOCIATIO, IC.,

Florida Corporation
DAVID LILIETHAL, individually
and as Director,
MARY JOULE, SADRA MATTESO,
ROALD VOELKER,
WATERCOLOR COMMUITY ASSOCIATIO, IC.
JOH DOE and JAE DOE

Defendants.

____________________________________________/

PLAITIFF’S MOTIO FOR RELIEF FROM ORDER DEYIG IJUCTIO

RESULTIG FROM SURPRISE, EWLY DISCOVERED EVIDECE AD
FRAUD UPO THE COURT BY DEFEDAT WATERSOUD’S COUSEL

COMES NOW PLAINTIFF, pursuant Florida Rules of Civil Procedure 1.540 (b)

and states:

1. On June 14, 2010 the Court heard Plaintiff’s Motion for Injunction related

to Defendant WaterSound’s “Benefited Assessment”.

2. In preparation for the hearing, Plaintiff reviewed all of the documents that

Defendant WaterSound has ever generated.1

3. Based upon Plaintiff’s review, Plaintiff came to know that Defendant

WaterSound did not follow the Declaration of Covenants, Conditions and Restrictions for

WaterSound when assessing their “benefited assessment” fine against Lot 24.

1 Based upon Gary Shipman, Esq. testimony during the April 12, 2010 Hearing on Plaintiff’s Motion to Compel
Production from Defendants WaterSound, Joule, Matteson and Lilienthal.

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 4. There are a plethora of procedural failures on the part of all of the

defendants in this case as it relates to the issuance of the “benefited assessment” at issue

in the instant Injunction. The most fundamental failure relates to Plaintiff’s right to a

hearing in front of WaterSound’s Covenants Committee.

5. Per the Declaration of Covenants, Conditions and Restrictions for

WaterSound, no benefitted assessments may be levied without strict conformance to

Section 8.5 (b) which in pertinent part reads:

“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.”

6. At 3.24 (a) the opportunity for a hearing in the By-Laws reads:

(a) otice. …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.

7. It is elementary that the “benefited assessment” which is being expressed

as a lien against Lot 24 cannot stand if there is no Covenants Committee.

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 8. Plaintiff knows there is no Covenants Committee as a result of his review

of all the documents that Defendant WaterSound has ever generated.1

Fraud

9. Despite this fact, Christopher George, Esq. who is Counsel for Defendants

WaterSound, Watercolor, Matteson, Lilienthal and Joule, fraudulently submitted to the

Honorable Judge LaPorte during the proceeding on this injunction:

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

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

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

12

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.

Mr. George compounded on his fraud against the Court when he went on to say:

The

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

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

3
 14

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.

10. Christopher George, Esq. and I agree, whether or not Defendant

WaterSound has a Covenants Committee is crucial and material to this injunction and

Judge LaPorte’s decision to grant or deny the injunction.

Surprise

11. Plaintiff Carroll was surprised by Christopher George’s assertions to

Judge LaPorte. After all, Carroll had studied the facts and come to the undeniable

conclusion that WaterSound does not have a Covenants Committee. Carroll and this

Court cannot properly conduct hearings if lead Counsel for the Defense is permitted to

commit fraud against Carroll and the Court.

ewly Discovered Evidence

12. On June 23, 2010, the WaterSound Board of Directors held their June

HOA meeting. During the meeting Carroll asked the Board, Defendant Lilienthal and the

Board’s Counsel Gary Shipman, Esq. for the names of the members of the Covenants

Committee and the dates of their appointments to the Covenants Committee. Defendant
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Lilienthal refused to answer. Gary Shipman, Esq. answered on behalf of the Board that

there is no WaterSound Covenants Committee. Carroll followed up and asked if there

was ever a WaterSound Covenants Committee. Gary Shipman, Esq. answered that there

has never been any need for a WaterSound Covenants Committee.

13. In light of this newly discovered evidence Carroll ordered a rush copy of

the transcript from the June 14, 2010 Hearing on the Injunction. Carroll ordered the

transcript so he could be fully informed prior to making this motion. Carroll received a

copy of the transcript after hours on Friday July 2, 2010. Today is the first day this Court

is open since that time.

14. Carroll has obtained the names and addresses of the HOA members and

Board of Directors in attendance during the June 23, 2010 WaterSound HOA meeting.

They are:

XXXXX XXXXX XXXXXXXXX

XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX XXXXXXXXX

WHEREFORE, Carroll requests:

A) Relief from the Order denying the Petition for Injunction.

B) A belated re-hearing on the Petition for Injunction so that this Court can

hear from the WaterSound members on the fraud against this honorable Court. Carroll

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will present additional misrepresentations and misconduct on the part of lead Counsel for

the Defense as it relates to the June 14 Hearing on this Injunction.

C) All further relief deemed appropriate by this Court.

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, by
e-mail and regular mail this 6th day of July, 2010.

_____________________________
John P. Carroll
Box 613524
WaterSound, FL 32461
Tel: (850)231-5616
Fax: (850)622-5618