IN THE SUPREME COURT OF FLORIDA

KEVIN M. OWENS,

Appellant, DCA Reference No. : 2D12-2463

VS.

Cypress Park Garden Homes Condominium Association

Appellees /

ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

KEVIN M. OWENS, ProSe 4916 W. Linebaugh Ave. Suite 104 Tampa, Florida 33624 813-964-0852 TABLE OF CONTENTS

TABLE OF CITATIONS...... ii

PRELIMINARY STATEMENT ...... 1

I. STATEMENT OF CASE AND FACTS ...... 2

II. SUMMARY OF ARGUMENTS ...... 4

III. ARGUMENTS ...... 4

1. Both Appeal and Trial courts have failed to recognize the Petitioner as the principal unit owner. Florida statute 718.111, Section (1) (a) specifically states that the officers and directors ofthe Condominium Association were to have a fiduciary relationship with the Petitioner as that unit owner. It was the decision of defendants Cypress Park Home's legal counsel to choose sides with the tenant.

2. Both Appeal and Trial courts have failed to recognize and apply numerous Florida statutes which grant the Condominium unit owners exclusivity to their units, and the right for the Petitioner to bring legal action against the Association.

IV. CONCLUSION ...... 10

V. CERTIFICATE OF COMPLIANCE...... 11

VI. CERTIFIATE OF SERVICE...... 11

l TABLE OF CITATIONS

Worthinglen Condo. Unit Owners' Assn. v. Brown, 57 Ohio App.3d 73, 566 N.E.2d1275(Ohio10thDCA1989)...... 5

Seagate Condominium v. Duffy, 330So.2d484(4thDCA1976)...... 5

Hidden Harbour Estates v. Basso, 393 So.2d 637, 639 (Fla. 4th DCA 1981) ...... 5

Rywalt v. Writer Corp., 34 Colo.App. 334, 526 P.2d 316 (1974) ...... 5

Papalexiou v. Tower West Condominium (Ch.Div.1979), 167 N.J.Super.516, 401 A.2d 280...... 6

Hidden Harbour Estates, Inc. v. Norman, 309So.2d180(Fla.4thDCA1975)...... 6

Statutes 718-111, Section (1), paragraph (a)...... 5 718.111, Section (3) ...... 7 718.302, Section (7)...... 3 718.106, Section (2) Paragraph (b)...... 10

|| OtherAuthorities Declaration of Condominium ARTICLE VII- USE AND OCCUPANCY RESTRICTIONS SECTION IX- USE RESTRICTIONS 8) NUISANCES ...... 8 SECTION IX- USE RESTRICTIONS 9) LAWFUL USE ...... 9 SECTION IX- USE RESTRICTIONS 10) LEASING ...... 8

til PRELIMINARY STATEMENT

The Petitioner/Appellant herein challenges a decision filed on May 3, 2013 by the Florida Second District Court ofAppeal, affirming a judgment entered in

Appellees' favor by the circuit court. The Petitioner/Appellant filed an original

Appeal (2D10-4142) in the Second District Courts in which a Mandate was issued on January 4th 2012. The trial courts again failed to recognize the

Petitioner/Appellant as the unit owner, setting forth two separate Appeals (2D12-

2463/2D12-526)

Both ofthese cases have been filed concurrent with the Appeals Courts, case 2463 being the Petitioner/Appellant vs. Defendants Cypress Park Garden

Homes (Association) and 526 being the Petitioner/Appellant vs. Village

Investment/Mike Forte (Landlord/Renter). The Petitioner/Appellant filed his original case for the simple removal ofrenter Forte due to intentionally violating the rules and regulations ofthe Condominium property by threatening to kill the

Petitioner, stalking him at his place ofbusiness along with numerous violent and verbal confrontations.

Neither trial nor appeals courts have yet recognized the Petitioner/

Appellant as the unit owner in any ofthese cases, and his exclusive right under

1 Florida Law to bring forth action for damages against the association, a unit owner, and a tenant who willfully and knowingly fails to comply with Chapter 718,

F.S., the applicable administrative rules, or the condominium documents. Chapter

718, F.S., favors the Petitioner/Appellant in all cases stemming from, and including his original action (04-6169) as that unit owner.

STATEMENT OF CASE AND FACTS

Upon purchasing a condominium unit at Cypress Park Garden Homes in the year 2000, the Appellant entered into an agreement with Cypress Park Homes to pay the necessary maintenance fees on the unit he purchased. Under that very same contract, Cypress Park Homes became obligated to Appellant to enforce rules and regulations set forth in the Declaration of Condominium to ensure that he gets to utilize his property in peace, without disturbance. The Officers and Directors of the Association were to have a Fiduciary relationship with the Petitioner/Appellant

as a unit owner.

Cypress Park Homes failed to take any action at all against the

defendant/renter, in which Appellant had made very Clear to Cypress Park Homes that he wanted removed due to numerous threats (including death threats), and being stalked and spied on through the usage of video cameras on a daily basis.

2 Such action by renter Forte directly violated specific rules and regulations of the Declaration ofCondominium, which constituted a Nuisance to Appellant, preventing him from utilizing his condo without disturbance. The Appellant in this case filed Complaints against the Renter for a span often full years; all went completely un-recognized by Cypress Park Homes and their legal counsel.

During the original trial, the Petitioner had supplied the Courts with a DVD segment which clearly showed renter Forte yelling obscenities directly at the

Petitioner. The Petitioner captured renter Forte's verbal confrontations on numerous occasions, and supplied this documentation to the defendants Cypress

Park Homes, trial courts, and appeals courts. This evidence proves that the renter's confrontations were intentional, and directed to the petitioner/appellant. These violent confrontations violated specific rules outlined in the nuisance section ofthe condominium does. The DVD segments could not be any clearer in any other case.

Cypress Park not only Continued to Issue Lease Agreements for the Renter but acquired a Writ ofPossession from the Courts and kicked the petitioner out of his own Condo without Appellant ever being able to enjoy it in the manner in which he had wished to. The Petitioner's original action to remove the renter (04-

6169) was filed before the Association's action to remove the Petitioner from his own property. Unit owners are granted exclusive ownership and possession oftheir condominium unit under section 718.103(26), F.S. 3 SUMMARY OF ARGUMENTS

The State ofFlorida provides a number ofrights for condominium owners through Chapter 718, Florida Statutes (F.S.), also known as the Condominium Act, and the corresponding administrative rules, Chapters 61B-15 through 61B-24,

Florida Administrative Code (F.A.C.). Along with these rights come various responsibilities that correspond to this type of community living. This summarizes the rights ofunit owners and the responsibilities ofCondominium Associations under the Condominium Act for the State ofFlorida. The Petitioner is the unit owner in these cases. Both trial and appeals courts have failed to recognize the petitioner as that unit owner. No known Florida statutes favor a tenant by any condition or means.

ARGUMENTS

1. Both Appeal and Trial courts have failed to recognize the Petitioner as the principal unit owner. Florida statute 718.111, Section (1) (a) specifically states that the officers and directors of the Condominium Association were to have a fiduciary relationship with the Petitioner as that unit owner. It was the decision of defendants Cypress Park Home's legal counsel to choose sides with the tenant.

4 In all cases regarding Condominiums, the Associations are to be obligated to the interest of the unit owners, and their exclusive right to use their condo in peace.

While not a Florida case, Worthinglen Condo. Unit Owners' Assn. v. Brown,

57 Ohio App.3d 73, 566 N.E2d 1275 (Ohio 10th DCA 1989), contains facts similar to the case now before the court. In that case, a condominium association amended its condominium declarations to include a provision that prohibited leasing completely. The Ohio appellate court reviewed existing condominium law in the nation, including Florida law.

It agreed with Florida's Seagate case and the majority that such use restrictions must meet a "reasonableness" test. Id., at 1277, citing Seagate

Condominium Association, Inc. v. Duffy, 330 So.2d 484 (Fla. 4th DCA 1976), and

Hidden Harbour Estates v.Basso, 393 So.2d 637, 639 (Fla. 4th DCA 1981). The

Ohio court in Brown posed three questions to determine if a new use good faith for the common welfare ofthe owners and occupants ofthe condominium. It is derived from Rywalt v. Writer Corp. (1974), 34 Colo.App. 334, 526 P.2d 316, and

Papalexiou v. Tower West Condominium (Ch.Div.1979), 167 N.J.Super. 516,

401A.2d 280, in which the good faith required of a corporate board of directors is analogized to that required of a condominium board of managers.

Boards owe a duty of good faith in managing the Condominium property.

5 We believe good faith is an essential ingredient of a reasonable decision or rule."

Id. 33 Ohio App.3d at 57, 514 N.E.2d at 737-738, fn. 8. In adopting this test, the court hoped to balance the interests represented in any condominium dispute. "The first question in applying the test ofreasonableness is whether the decision or rule was arbitrary or capricious.

This requires, among other things, that there be some rational relationship of the decision or rule as to the safety and enjoyment ofthe condominium. Id., at

1277, citing Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th

DCA 1975).

Certainly, the appellant had the legal right to utilize his property without disturbance. The defendants Cypress Park Homes had means and duty under

Florida law to remedy the situation by simply discontinuing and further lease agreement for the tenant.

2. Both Appeal and Trial courts have failed to recognize and apply numerous Florida statutes which grant the Condominium unit owners exclusivity to their units, and the right for the Petitioner to bring legal action against the Association. Florida Statute 718.103(26), grants unit owners exclusive ownership and possession oftheir condominium unit. Section 718.303(1) and 718.1255, FS.; Rule

61B-45, F.A.C. allows the unit owners to bring action for damages or injunctive reliefor both against the association, another unit owner, a tenant or invitee or a director who willfully and knowingly fails to comply with Chapter 718, F.S., the applicable administrative rules, or the condominium documents.

By Instruction ofhis previous Legal Counsel, Appellant purchased a hand- held video camcorder in 2005 to document the never-ending confrontations by

Defendant/Renter Forte. On May 16th 2005, during Appellant's litigation for the removal ofthis same Renter, Cypress Park Homes issued Renter Forte a Lease

Agreement, thus violating Leasing guidelines as set forth in the Declaration of

Condominiums.(1)

On November 27th 2005, just months after Cypress Park Homes issued a lease agreement for renter Forte, the appellant captured Forte yelling extremely explicit language on his hand-held video camera. The captured scenes occurred on the common elements ofthe premises, which are governed by the association. The

Incident was transferred to DVD format (Pitf.Ex. S) and sent directly to the

association in the form of a formal complaint.

The package containing the complaint with the DVD came back to appellant

un-opened in the mail. The appellant re-sent the same package, but once again, the

7 complaint was returned to appellant as if appellant did not even exist. The appellant feels that the obligation for his right to peacefully enjoy his condo should have been upheld at that point, by simply discontinuing any further lease agreements for the renter under leasing guidelines set forth in the Declaration of

Condominiums.

The constant infractions by the renter constituted a nuisance to the Appellant which directly violated his right to peacefully enjoy his Condominium. (2)

o> Article 7, Section IX, Paragraph (10) ofthe Declaration of Condominiums:

10) Leasing: By the use ofan approved lease, entire apartments may be rented provided the occupancy is only be the lessee and his family, their servants and guests. No rooms may be rented except as a part of any apartment or to another apartment owner, and no lease will be permitted for less than ninety (90) days. All leases shall be approved in writing by the board of Administrators. Such lease shall not violate any ofthe terms ofthis Declaration.

(2) Article 7, Section (8) ofthe Declaration of Condominium: 8) NUISANCES: No nuisances shall be allowed upon the Condominium Property, nor any use or practice which is the source of annoyance to residents or which interferes with the peaceful possession and proper use ofthe property by its residents.

During the course of appellant's legal action, Renter Forte watched the appellant every day with hidden cameras which were mounted in various positions all over the Condominium in which he resided. This would let appellant know he

8 was under surveillance by opening the garage door ofthe renter's condo, to a position where the bottom ofthe garage door was one foot above the garage floor.

This action exposed even more camera's mounted in the garage at upper- corner of the garage door track. All cameras were aimed directly at appellant's condo. (Pltf.Ex. M)

The garage door opened up on a Daily basis like clock-work until the very day appellant moved his last bit ofbelongings out ofhis Condo. The procedure of the renter's spying on the appellant was strictly to hound and harass Appellant.

Although the appellant filed a case with the Hillsborough County Sheriff's office, no action was ever forthcoming from Defendants Cypress Park Homes. The combination ofthe threats, stalking (both on and off premises) and the relentless confrontations from the renter made the Appellant feel extremely un-easy, and in his opinion, fell under the category described in the Declaration of Condominiums section regarding lawful usage ofthe units. (3)

(3) Article 7, Section IX, Paragraph (9) ofthe Declaration of Condominiums: 9) Lawful use No immoral, improper, offensive, on unlawful use shall be made ofthe condominium property, nor any part thereof, and all valid laws, zoning ordinances and regulations of all Governmental bodies havingjurisdiction thereofshall be observed.

9 The fact that the renter confronted the board President along with numerous other residents even while the Association is being sued proves that the renter was at no time, willing or able to comply with the use restrictions specified within the

Declaration ofCondominiums. Although the renter harassed and threatened other residents on the property, the renter's primary focus was towards the appellant.

CONCLUSION

The State ofFlorida provides a number ofrights for condominium owners through Chapter 718, Florida Statutes (F.S.) Had these cases been disputes between two separate unit owners, question would arise as to the validity ofthe arguments. The renter however, has no authority in the operation or management ofthe Condo Association. Based upon these facts and Florida law, the petitioner/appellant seeks thejurisdiction ofthese courts to correct the Second

District and trial court's opinion, and remand this cause to the appeals and trial courts with instructions for the entry ofjudgment favoring the petitioner/appellant as a unit owner vs. a tenant as per 718.111 (1)(a) ofthe Florida Statutes.

10 CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that I have complied with the provisions ofFla. R.App. Pro. Rule 9.100 (1) and 9.210 (a)(2) with respect to the proper form and font.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy ofthe foregoing has been furnished by U.S. Mail to: Daniel F. Pilka, 213 Providence Rd. Brandon, Florida and Frank E. Dylong/Scot E. Samis P.O. Box 3942, St. Petersburg, Florida 33731 on this 18* day ofJune, 2013.

KEVIN M. OWENS, Pro Se 4916 W. Linebaugh Ave. Suite 104 Tampa, Florida 33624 E-Mail: [email protected]

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