SC07-1527 Thomas, III V. Vision I Homeowners Association, Inc

IN THE SUPREME COURT OF THE STATE OF FLORIDA

WOODIE H. THOMAS, III on behalf of himself Petitioner, CASE NO. SC07-1527 FOURTH DCA CASE NO. 4D06-16 vs.

VISION I HOMEOWNERS ASSOCIATION, INC. a non-profit Florida corporation Respondent. ______/

PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL

PETITIONER’S BRIEF ON JURISDICTION

WOODIE H. THOMAS, III, P.A. Florida Bar No.: 940 216 1603 Vision Drive Palm Beach Gardens, Florida 33418 (561) 622-2900

Woodie H. Thomas, III, Esq., Pro-Se Attorney for Petitioner

TABLE OF CONTENTS

Page

Table of Contents ...... i

Table of Citations ...... ii

Statement Certifying Style and Size of Type used in Preparation of Brief . . . iii

Statement of the Case and Facts ...... 1

Summary of the Argument ...... 3

Argument ...... 5

THIS COURT HAS JURISDICTION PURSUANT TO ARTICLE V, §3(b)(3), FLORIDA CONSTITUTION, AND FLA.R.APP.P. 9.030(a)(2)(A)(iv) BECAUSE THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND OF THE FIRST, SECOND AND FIFTH DISTRICT COURTS OF APPEAL ON THE SAME QUESTION OF LAW...... 5

Conclusion ...... 10

Certificate of Service ...... 11

i TABLE OF CITATIONS Cases: Page(s)

Highland Lakes Property Owners Association, Inc. v. Schlack, 724 So.2d 621 (Fla.App. 5 Dist. 1998) ...... 8

In re Rivera, 256 B.R. 828 (M.D. Fla. 2000) ...... 7

Moore v. Stevens, 106 So. 901 (Fla. 1925)...... 8

Mundy v. Carter, 311 So.2d 773 (Fla. 1st DCA 1975)...... 8

Pepe v. Whispering Sands Condominium Association, Inc., 351 So.2d 755 (Fla.App 2 Dist., 1977) ...... 7

Ware Constr. Co. v. Thomas, 357 So.2d 452, (Fla.2d DCA 1978) ...... 8

Woodside Village Condominium Ass’n, Inc. v. Jahren, 806 So.2d 452 (Fla. 2002) ...... 7

Statutes:

Chapter 720.301 et seq., Homeowners’ Associations, Florida Statutes. . . . . Passim

Chapter 720.301 Definitions, Homeowners’ Associations, Florida Statutes . . . 8

Chapter 720.302 (1), Homeowners’ Associations, Florida Statutes ...... 9

Florida Rules:

Fla.R.Civ.P. 1.120 (a, c) ...... 5, 6

Florida Constitution, Article V, §3(b) (3)...... 5

Florida Constitution, Article VII, Finance and Taxation, Section 6, Homestead Exemptions...... 2, 6

ii Florida Rules: (Continued)

Florida Constitution, Article X, Section 4, Homestead Exemptions...... 2, 6

Fla.R.App.P. 9.030(a)(2)(A)(iv)...... 5

Fla.R.App.P. 9.210 ...... iii

Other Sources:

Association Governing Documents:

DECLARATION OF PROTECTIVE COVENANTS AND RESTRICTIONS FOR VISION I (“Declaration”)...... Passim

ARTICLES OF INCORPORATION OF VISION I HOMEOWNERS ASSOCIATION, INC. (“Articles”) . . . Passim

BY-LAWS: VISION I HOMEOWNERS ASSOCIATION, INC. (“By-Laws”)...... Passim

Blacks Law Dictionary...... 8

Fla. Jur. 2, Business Relationships, § 425...... 8

Statement Certifying Style and Size of Type Used in Preparing Brief

The undersigned certifies that 14 point Times Roman type font has been utilized in the preparation of this brief in compliance with the font requirements of Fla. R. App. P. 9.210.

Woodie H. Thomas, III ______Woodie H. Thomas, III, Esquire

iii STATEMENT OF THE CASE AND FACTS

This case involves two claims of lien and a foreclosure action on homestead property by the Vision One Homeowners Association, Inc., and resulted in a non-jury verdict in favor of the Plaintiff which ultimately resulted in two appeals to the Fourth District Court of Appeal by Defendant Woodie

H. Thomas, III. The dispute was centered around the affirmative defenses that the association filed invalid liens for alleged general assessments, an alleged roof assessment and borrowed money without following the requisite conditions precedent to file the liens, without the specific homeowner membership vote requirements to impose an increase in general assessments, special assessments for capital improvements, emergency assessments, and borrow money. In addition, there is no authority in the association governing documents to assign assessments under the association governing documents.

The appellate court decision reviewed the case de novo as a contract between the association and association members and determined that there was competent and substantial evidence that showed the assessments levied by the association for both improvements and bank loans were valid. (See Appendix.)

SUMMARY OF THE ARGUMENT

The Fourth District’s opinion is in express and direct conflict with prior

1 decisions of other appellate courts, the Florida Supreme Court, the Homeowners’

Associations, Florida Statute 720.301 et seq. and the Florida Constitution, Article

VII. Finance and Taxation, Section 6, Homestead Exemptions and Article X,

Section 4, Homestead Exemptions with a decision that the governing documents are a mere contract between the homeowners and the association and both the improvements and the payment of the loans were valid.

It is undisputed that there was no vote by the homeowner members under the association governing documents during the course of this litigation.*

Under established law, the merits of this case should have been decided on the association governing documents as covenants running with the land in compliance with the governing documents, Florida Statute 720.301-720.312, and the Florida Constitution. The covenants must be strictly construed when the association board of directors takes action to make improvements, impose an

______

*It is undisputed that the homeowners association and the homeowners association attorney in an attorney opinion letter October 24, 2001 approved an assignment of proceeds of general and special assessments for a $200,000.00 bank loan, the assignment of general assessments, special assessments and emergency assessments for the bank loan in a UCC Financing Statement, that the 2001 directors waived the 2002 directors election and, therefore, the 2002 board of directors was not duly elected from October 5th, 2001 through the fiscal year 2002 when this lawsuit was filed. These actions are the subject of a second appeal after a motion for relief from judgment was denied. 4th DCA Case No. 4D07-86.

2 increase in general assessments(taxes), make special assessment capital improvements (taxes), borrow money, and assign assessments which clearly demonstrates the Fourth District’s opinion expressly and directly conflicts with existing decisions of this court and other appellate courts.

The appellate court disregarded the record evidence and the covenants running with the land in the association governing documents, the bank loan documents and other legal documents regarding approval by the association board of directors and the association attorney for general, special and emergency assessments, the trial court transcript whereby the association attorney misled the trial court under oath that there were no special assessments and there was a duly elected board of directors when, in fact, the association and the association attorney represented to the bank in bank loan documents that the association had approved general, special and emergency assessments, approved a $200,000.00 bank loan without homeowner approval, and assigned general, special and emergency assessments as security for the bank loan in a UCC financing statement without authority in the association governing documents.

The association governing documents provide the following covenants running with the land:

BY-LAWS, ARTICLE VI. FISCAL MANAGEMENT, B (5). Operation, the amount of which may be to provide a working fund or to meet losses. Provided,

3 however, that the amount of each budgeted item may be increased over the foregoing limitations when approved by homeowners entitled to cast not less than seventy-five percent (75%) of the votes of the entire membership of the Association.

BY-LAWS, ARTICLE VI. C. FISCAL MANAGEMENT, Assessments. …If the event the annual assessment proves insufficient, the budget and assessments may be amended at any time by the Board of Directors if the accounts of the amended budget do not exceed the limitations for that year. Any account that does exceed the limitations shall be subject to the prior approval of the membership of the Association as previously required in these by-laws. (See Above)

DECLARATION, ARTICLE IV. COVENANT FOR MAINTENANCE ASSESSMENTS, Section 3. Special Assessments for Capital Improvements. … for the purpose of defraying, in whole or in part, cost of any construction, reconstruction, or repair, or replacement of a capital improvement upon the common area, … providing that any such assessment shall have the assent of two- thirds (2/3) of the votes of the owners….

BY-LAWS, ARTICLE VI. E. Assessments for Emergencies. Apply after notice to homeowners concerned with more than 50% vote of those concerned homeowners, in writing, and due in 30 days in manner prescribed by the board. In this case, more than ½ of the association homeowners must approve, in writing, and due in thirty (30) days after written notice.

DECLARATION, ARTICLE II. Property Rights, Section 1. Owners’ Easements of Enjoyment. (d). The right of the Association to mortgage any or all of the facilities constructed on the Common Area for the purposes of improvement or repair to the Association land or facilities pursuant to approval of two-thirds (2/3) of the voting members of the Association.

In order to prevail on a suit for foreclosure and assessment liens, a homeowners’ association is obligated to show that it has properly made improvements, levied assessments and borrowed money in accordance with the community’s declaration, articles and by-laws as covenants running with the

4 land when the defendant challenges the lack of compliance specifically and with particularity. Fla.R.Civ.P. 1.120 (a, c).

Article X, section 4 of Florida’s Constitution provides in part as follows:

Homestead; exemptions. (a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person....

ARGUMENT

THE FOURTH DISTRICT FAILED TO RECOGNIZE THAT THE ASSOCIATION GOVERNING DOCUMENTS ARE MORE THAN A MERE CONTRACT BETWEEN THE ASSOCIATION AND THE ASSOCIATION MEMBERS BUT COVENANTS RUNNING WITH THE LAND.

The Fourth District opinion eviscerates the protections afforded homeowners in the recorded association governing documents from a rogue board of directors and their attorney operating the association by fiat in an internecine struggle with homeowners. The ruling leaves the defendant homestead homeowner without any protection with the procedural, homeowner member voting rights and the other

5 protections under of the association documents, Florida Statute Chapter 720.301 et seq., and the Florida Constitution Article VII, Section 6 and Article X, Section 4, that would protect homestead property owners from carte blanche unwanted capital improvements, invalid assessments and the legal obligation to repay hundreds of thousands of dollars in borrowed money without the specific vote requirements from the members of the association under the association governing documents.

The District Court failed to address the subsuming issues whether the association met its burden of proof that it complied with the association governing documents as covenants running with the land when the board of directors levied several increases in general assessments, as well as imposed non-recurring special assessments, and emergency assessments on homeowners ostensibly as ordinary recurring maintenance, repair and replacement without the notice, meeting, and membership vote requirements of member homeowners, borrowed $200,000.00 without a membership vote under the Declaration, assigned general, special and emergency assessments without authority under the association governing documents, and made numerous and substantial improvements to the association property including an alleged roof assessment without the oversight protection of the independent Architectural Review Board from the board of directors as required under the Declaration, Article V. Fla.R.Civ.P. 1.120 (a, c)

6 Homeowners’ associations are strictly creatures of statute. The courts must look to the statutory scheme as well as the association declaration and other documents to determine the legal rights of owners and the association. See Chapter

720.301-720.312, Fla. Stat. (2001-2005). Woodside Village Condominium

Association, Inc. v. Jahren, 806 So.2d 452 (Fla., 2002).

In Woodside, the declaration, which some courts have referred to as the condominium’s (association’s) “constitution”, strictly governs the relationships among the condominium unit owners and the association. As explained by the

Woodside court in citing Pepe v. Whispering Sand Condominium Ass’n, Inc.,

351 So.2d 755 (Fla.2d DCA 1977):

A declaration of a condominium is more than a mere contract spelling out mutual rights and obligations of the parties thereto-it assumes some of the attributes of a covenant running with the land, circumscribing, the extent and limits of the enjoyment and the use of real property. Stated otherwise, it spells out the true extent of the purchased, and thus granted, use interest therein. Absent consent, or an amendment of the declaration of condominium as may be provided for in such declaration, or as may be provided by statute in the absence of such a provision, this enjoyment and use cannot be impaired or diminished. Hence, because condominiums are a creature of statute courts must look to the statutory scheme as well as the condominium declaration and other documents to determine the legal rights of the owners and the association. See §§ 720.301-720.312, Fla. Stat. (2002).

Further, a Florida bankruptcy court held, in In re Rivera, 256 B.R. 828

(M.D. Fla. 2000), that a chapter 7 bankruptcy does not discharge debts for

7 assessment liens. In Rivera, a homeowner had a lien on his property for failure to pay assessments. The court held that the obligation to pay assessments is a covenant running with the property and such property right cannot be discharged in a chapter 7 proceeding.

A real covenant is “one which binds the heirs of the covenanter and passes to assignees or purchasers. A real covenant “running with land,” occurs “when not only the original parties or their representatives, but each successive owner of the land, will be entitled to its benefit, or be liable to its obligation.” Blacks Law

Dictionary. As covenants of this type are in contradiction of the favor given within the law toward free and unrestricted use of real property, they must be strictly construed. Moore v. Stevens, 106 So. 901 (Fla. 1925); Ware Constr. Co. v.

Thomas, 357 So.2d 452, (Fla.2d DCA 1978); Mundy v. Carter, 311 So.2d 773

(Fla. 1st DCA 1975).

Fla. Jur. 2, Business Relationships, § 425. … an organization … may only exercise the powers of a homeowners association as such are provided for within the covenant’s provisions. Highland Lakes Property Owners Association, Inc. v. Schlack, 724 So.2d 621 (Fla.App. 5 Dist. 1998)

The Homeowners’ Associations, Florida Statute Chapter 720.301 defines the association governing documents. Definitions. As used in this chapter, the term: 8 (4) "Declaration of covenants," or "declaration," means a recorded written instrument 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 … must be members; (8) "Governing documents" means: … (a) The recorded declaration of covenants, and (b) The articles of incorporation and bylaws …. ; (9)”Homeowners' association" or "association" means a Florida corporation responsible for the operation of a community … in which the voting membership is made up of parcel owners and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel….; (13) ”Voting interest" means the voting rights distributed to the members of the homeowners' association, pursuant to the governing documents.

Fla.Stat. 720.302 (1) The purposes of this chapter are to give statutory recognition to corporations not for profit that operate residential communities in this state, to provide procedures for operating homeowners' associations, and to protect the rights of association members without unduly impairing the ability of such associations to perform their functions.

CONCLUSION

For the foregoing reasons, if left undisturbed, the Fourth District opinion that the evidence showed both the improvements and payment of the loans valid as a contract between the association and homeowner with competent and substantial evidence eviscerates the homeowner association governing documents and erodes the principle that the governing documents are more than a mere contract, but covenants running with the land and creates precedent that should be reviewed and overturned by this Court.

The voting interests of the member homeowners in the association governing documents are sacrosanct. The trial court and the Fourth District court

9 failed to address the subsuming issues as covenants running with the land and the specific homeowner vote requirements for an increase in general assessments, capital improvements, a bank loan, and association authority to assign assessments.

The authority to maintain the property, impose assessments (taxes), make capital improvements, and the capacity to borrow money are found in the recorded association governing documents as covenants running with the land and must be strictly construed with the specific homeowner vote requirements.

This court has jurisdiction and the court is urged to exercise its discretion and entertain the case on the merits as a matter of the great public importance to millions of homeowners and their associations who are subject to recorded governing documents, Florida Statute 720.301 et seq. and the Florida Constitution.

Petitioner respectfully requests this court accept discretionary jurisdiction and review this cause with an order for briefs on the merits.

Respectfully submitted,

Woodie H. Thomas, III, Esq. Florida Bar No.: 940 216 Woodie H. Thomas, III, P.A. 1603 Vision Drive Palm Beach Gardens, Florida 33418 (561) 622-2900

Woodie H. Thomas, III By: ______Woodie H. Thomas, III, Esq., Pro Se

10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of this Petitioners Brief on

Jurisdiction was served by U.S. Mail to Mr. David A. Core, Esq., St. John, Core &

Lemme, P.A., 1601 Forum Place, Suite 701, West Palm Beach, FL 33401-8106, this 20th day of August, 2007.

Woodie H. Thomas, III ______WOODIE H. THOMAS, III, ESQUIRE

11 IN THE SUPREME COURT OF THE STATE OF FLORIDA

WOODIE H. THOMAS, III on behalf of himself Petitioner, CASE NO. SC07-1527 FOURTH DCA CASE NO. 4D06-16 vs.

VISION I HOMEOWNERS ASSOCIATION, INC. a non-profit Florida corporation Respondent. ______/

APPENDIX

Exhibit Description 1 Fourth District Court of Appeal State of Florida CASE NO. 4D06-16 Opinion Filed May 16, 2007