JOHN P. CARROLL,
Defendants.
____________________________________________/
Plaintiff moves under section 768.72, Florida Statutes, and Florida Rule of Civil
Procedure 1.190 (f) to amend his second amended complaint to add a claim for punitive
(WaterSound), David Lilienthal (David), Mary Joule (Mary), Sandra Matteson (Sandy),
Ronald Voelker (Ron), and Watercolor Community Association, Inc. (Watercolor), and
states as follows:
1. WaterSound and Watercolor are each governed by clear and specific rules
that have been duly recorded with the Walton County Clerk of Court. Those rules are the
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(Exhibit B).
Covenants. Mary and Sandy were agents for both Watercolor and WaterSound, and their
specially and duly licensed under Florida Statute Chapter 468, Part VIII, and Rule 61-20
and 61-E14 of the Florida Administrative Code to uphold Florida Statute and the
Covenants. David was a Director for the Board of WaterSound, and his role and
defined by Florida Statute 720.303(1). Further, David is a Realtor specially and duly
licensed under Florida Statute 475 and Rule 61-J2 who has special knowledge of
Covenants and Restrictions in Florida. Ron is a Florida licensed surveyor, and his
activities are governed by the WaterSound Covenants and Florida’s Land Surveying and
Mapping Statute, Chapter 472. Carroll was a member of WaterSound, and was legally
protected from the actions of WaterSound, Sandy, Mary, David and Ron. Carroll was
also a licensed contractor, Watercolor resident and resident of the great State of Florida
thereby also guaranteed protection under Florida Law and the Covenants of Watercolor.
wrote and recorded their Covenants, and each of the individual Defendants acknowledges
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5. Since at least 2007, the Defendants have relentlessly and systematically
misconduct or gross negligence, and must be held liable for punitive damages.
conduct and the high probability that injury or damage to Carroll would result and,
despite that knowledge, intentionally pursued that course of conduct which indeed
8. WaterSound and Watercolor are liable for punitive damages for the
conduct of its agents or employees, because its agents are guilty of intentional
misconduct or gross negligence, and Watercolor and WaterSound actively and knowingly
participated in the conduct, and their officers, directors and managers knowingly
condoned, ratified and consented to the conduct, and they also engaged in conduct that
constituted gross negligence that contributed to the loss and damages suffered by Carroll.
WHEREFORE Carroll respectfully requests the Court grant this Motion for Leave
to Amend his Second Amended Complaint to include a Claim for Punitive Damages and
deem Plaintiff’s Third Amended Complaint (Exhibit C) as filed upon the Court’s granting
of Plaintiff’s Motion.
MEMORANDUM OF LAW
need demonstrate only that a “reasonable basis” for such damages exists in the record.
Punitive damages act as a punishment to deter wrongful conduct and “to vindicate
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wrongs arising from antisocial behavior. The incentive to bring actions for punitive
damages is favored because it has been determined to be the most satisfactory way to
correct evil-doing in areas not covered by the criminal law.” Johns-Manville Sales Corp.
v. Janssens, 463 So. 2d 242, 247 (Fla. 1st DCA 1984) (citations omitted). Carroll seeks to
amend his Second Amended Complaint to state a claim for punitive damages pursuant to
section 768.72, Florida Statutes, and Florida Rule of Civil Procedure 1.190(f). In
such damages. The claimant may move to amend her or his complaint to
procedure.
Rule 1.190(f) states: “A motion for leave to amend a pleading to assert a claim for
punitive damages shall make a reasonable showing, by evidence in the record or evidence
to be proffered by the claimant, that provides a reasonable basis for recovery of such
damages.”
Thus, in order to plead a claim for punitive damages, Plaintiff need only provide
the Court with a showing of a “reasonable basis” for the recovery of such damages. See
Strasser v. Yalamanchi, 677 So. 2d 22, 23 (Fla. 4th DCA 1996). “[A]n evidentiary hearing
where witnesses testify and evidence is offered and scrutinized under the pertinent
order to determine whether a reasonable basis has been established to plead punitive
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damages.” Estate of Despain v. Avante Group, Inc., 900 So. 2d 637, 642 (Fla. 5th DCA
2005). Plaintiff may establish the reasonable basis for punitive damages by proffer, which
“is merely a representation of what evidence the [party] proposes to present and is not
actual evidence.” Id. (quoting Grim v. State, 841 So. 2d 455, 462 (Fla. 2003)). “[T]he
standard that applies to determine whether a reasonable basis has been shown to plead a
claim for punitive damages should be similar to the standard that is applied to determine
whether a complaint states a cause of action.” Id. at 644. The proffer, therefore, is
reviewed in the light most favorable to the Plaintiff and accepted as true. Id. (citing Sobi
v. Fairfield Resorts, Inc., 846 So. 2d 1204 (Fla. 5th DCA 2003)).
Pursuant to section 768.72(2), Mary, David, Ron and Sandy may be held liable for
punitive damages based upon clear and convincing evidence of intentional misconduct or
gross negligence. “Intentional misconduct” means that the defendant had actual
knowledge of the wrongfulness of the conduct and the high probability that injury or
damage to the claimant would result and, despite that knowledge, intentionally pursued
means that the defendant’s conduct was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons exposed to such
conduct.” § 768.72(2)(b).
requirements of section 768.72(2) must be satisfied, as well as one of the following: (a)
The employer, principal, corporation, or other legal entity actively and knowingly
participated in such conduct; (b) The officers, directors, or managers of the employer,
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such conduct; or (c) The employer, principal, corporation, or other legal entity engaged in
conduct that constituted gross negligence and that contributed to the loss, damages, or
injury suffered by the claimant. §768.72(3). In this case, both Watercolor and
Furthermore, this Court has already found that Carroll has sufficiently pleaded
Carroll does not have to prove any of the above in order to amend his Complaint;
Carroll need only provide a reasonable basis for the recovery of punitive damages in the
satisfies both subsections (2) and (3) of §768.72. Therefore, the Court should grant
Carroll’s Motion for Leave to Amend the Second Amended Complaint to add a claim for
punitive damages.
Carroll’s proffer of evidence, presented below, provides a reasonable basis for his
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conduct that interfered with Carroll’s ability to care for his family, destroyed Carroll’s
extremely successful businesses which took years of sacrifice and hard work to establish,
damaged Carroll’s property, destroyed Carroll’s life’s savings, and ultimately caused
Carroll to suffer amputations to his hand in front of his wife and 7 year old daughter.
The Defendants’ actions were willful, wanton, malicious and in reckless disregard
for Carroll. These allegations are sufficient to state a cause of action for punitive
damages.
Proffer of Evidence
In support of his Motion for Leave to Amend his Second Amended Complaint to
include a claim for punitive damages, Carroll makes the following proffer of evidence,
which is based on the discovery conducted in this case and will be demonstrated by
Since at least 2007, the Defendants have relentlessly and systematically engaged
conduct and the high probability that injury or damage to Carroll would result and,
despite that knowledge, intentionally pursued that course of conduct which indeed
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1. Defendant Mary intentionally, and with reckless disregard for the
covenants and the law, made repeated and prolonged misstatements of material
facts in order to induce Carroll to act, or refrain from acting, on them. Each and
every time Carroll became suspicious and sought to get the truth, Mary
compounded on her falsehoods. All the while, Mary was under the mandate of
WaterSound and Watercolor’s Covenants. Mary was trained for her job, read the
Covenants yet acted in opposition to her mandate. Mary did so to exact harm on
A Never.
A Yes.
Q Tracy Regan?
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Q As early as 2007 when you first started --
A I have no idea.
A I don't know.
o Mary knew WaterSound had Covenants that controlled her activity and
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has restrictive covenants?
A Yes.
A A few parts.
our office.
Q Was it free?
ordering a survey?
A Yes.
proper under the DRB to let them take over the Kaye
job?
Q It would be okay?
is it?
letter?
A No.
o Mary aided David Lilienthal, son of her co-defendant, to violate the height
WaterSound Beach?
like that?
A No.
Q Why not?
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Q How do you know?
building. The covenants require advance notice to Carroll and permission from Carroll.
A No.
A I don't know.
than 50 feet?
A I don't know.
A Yes.
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o Mary doesn’t understand basic construction mathematics. Despite this,
Mary advised her bosses that Carroll’s tower would exceed the height limit when the
tower roof framing was complete. Mary acted with gross negligence:
building is 50 feet?
A Halfway up.
ridge.
Q You do?
A Yeah.
I think.
it is.
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A It means if you're going up vertical 12
Q The steepness.
formula is.
A It's 6/12.
12 inches.
inches?
roof is.
and 12?
this (indicating).
12?
A I don't know.
Q You don't?
A I don't know.
o Mary would selectively enforce the rules. On one hand she went out of
her way to fabricate a charge against Carroll by saying his tower was too tall, in violation
of the covenants and required to be torn down, and at the same time she would cover up
the same, but true violation for her friends. She acted maliciously and intentionally to
house is?
they want.
that?
to you?
A Tim Reese.
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Q Does Tim Reese sit on the design review
board?
A Yes, he does.
covenants and the law, made repeated and prolonged misstatements of material
facts in order to induce Carroll to act, or refrain from acting, on them. Each and
every time Carroll became suspicious and sought to get the truth, Sandy
compounded on her falsehoods. All the while, Sandy was under the mandate of
WaterSound and Watercolor’s Covenants. Sandy was trained for her job, read the
Covenants yet acted in opposition to her mandate. Sandy did so to exact harm on
receiving several §720.303 requests (Exhibit D), and then directed others under her
an unsecured site on the world wide web. Those minutes defamed Carroll.
o Sandy read and understood the Covenants for WaterSound and Watercolor:
WaterSound?
A Yes, sir.
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Q Did you read them completely?
A Yes, sir.
covenants?
A Yes, sir.
A I believe so.
o Sandy knew the Covenants mandate that the Owner and Contractor be
notified in writing before any person retains an expert to inspect any structure within
WaterSound:
No Person shall retain an expert for the purpose of inspecting the design or
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
o Sandy ordered Mary to order a special survey for Carroll’s tower without
to?
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A Someone told me to.
A Yes.
problem.---
o Sandy told Carroll the Board asked for a survey of Carroll’s tower on their
own initiative the day after the May 23, 2008 Board of Director’s meeting (Exhibit G).
and I think that you said that the next day you
A Yes, sir.
o The survey was dated for a week prior to the May 23 Board of Directors
5/14/08.
to survey Carroll’s tower, mislead Carroll so he’d think the Board ordered the survey,
concealed her plan by removing the tower height discussion from the agenda, did not
disclose Carroll’s real survey to the Board, and continued her misstatements by saying the
intent, right?
bring it there?
A Yes.
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o Sandy acted as a conduit between the WaterSound and Watercolor Board
of Directors, along with Mary Joule, Tracy Regan, Mary Rosenheim and Bridget Precise
o Sandy took Carroll’s company off the approved builder’s list without
cause to deliberately damage Carroll and falsified records to cover it up (Exhibit I).
association money?
A Yes, yes.
case --
A Yes.
Q -- of WaterColor?
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A Yes. There were some monies owed by a
o Sandy read the Covenants, understood the Covenants, but still aided the
Board to act as the Covenants Committee which is a breach of the Covenants and Florida
Statute. Sandy is guilty of intentional misconduct or gross negligence, and must be held
covenants committee?
Q Yeah.
o Sandy targeted Carroll and his businesses then instructed the Board of
Directors to issue an improper, and illegal, fine or benefited assessment against Lot 24.
association?
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A There was a lot of discussion on that with
and the law yet Sandy instructed the Board of Directors and Tracy Regan to fine Lot 24
$1,000 per month without an opportunity for a hearing. Sandy did so intentionally:
that fine.
construction.
o Witness testimony and other evidence will show that Sandy deliberately
sought to impose an unjust lien against Lot 24 to damage Carroll. Sandy knew what she
was doing, knew it was against the Covenants and the law, but used her position to guide
employee.
committee?
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WaterSound have a covenants committee, and is the
covenants committee?
A Yes, sir.
covenants and the law, made repeated and prolonged misstatements of material
facts in order to induce Carroll to act, or refrain from acting, on them. David’s son
was his partner in real estate and Carroll’s direct competitor in WaterSound and
Watercolor. Each and every time Carroll became suspicious and sought to get the
truth, David compounded on his falsehoods. All the while, David was under the
mandate of WaterSound and Watercolor’s Covenants. David was trained for his
job, had special knowledge of real estate law, read the Covenants yet acted in
opposition to his mandate. David did so to exact harm on Carroll. David succeeded
in damaging Carroll.
o David and his son David were partners in WaterSound real estate. David’s
A I am.
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property?
A It is.
$675,000 in 2007 while directly competing with David and his son (Exhibit J).
A I don't remember.
records.
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Exhibit 6. It says on here that in September of
2004 --
working with you, I'm not sure that it is. I'm not
A I have no idea.
mortgage?
A We had a mortgage.
A Below.
or not.
A No.
$275,000?
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Q Lot 1, WaterSound Bridges, Phase I.
A Yes, I do.
was in 2004.
A Very possibly.
A Okay.
A Okay.
A Okay.
imagine, John.
will.
transaction?
Q Not at all?
A That's a no.
physical address.
Q You do?
Joe.
A No.
Q Not even --
A No is the answer.
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Q Okay. Well, let's look at these numbers
o David read the Covenants for WaterSound and understood them. David
was a licensed Realtor and had above average knowledge about Covenants:
restrictions are.
A Numerous times.
A I have.
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Q -- to purchase?
A I have, yes.
A Yes.
A I do.
fiduciary duty --
A They do.
o David knew that only the Declarant could remove a builder from the
A That's correct.
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was actively engaged in the DRB?
now.
A No.
A No.
DRB issues?
A No.
A Yes.
o David denies that he had involvement in taking Carroll’s company off the
o David voted to take Carroll’s company off the approved builder’s list
restrictions?
about that.
A I do not.
A I do not.
Beach?
A Yeah, I did.
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understand in there?
A No.
A I don't remember.
is?
A I do.
A I can't.
A I can't.
WaterSound Beach and would serve to make or break Carroll’s business as a builder:
road.
road to the beach from the main gate. How could you
not say it's not the main road? It is the main road
A Yes.
o David went out of his way to slander Carroll and Lot 24, interrupt
construction at Lot 24, Libel Carroll and portray Carroll as unfit in his trade. He did so
maliciously, intentionally and with gross negligence. To this day, David continues to try
businesses?
structural problems?
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A Not that I remember.
A Yes.
24's construction?
or improper?
A Yes.
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A I cannot remember who it was.
improper?
A Me personally?
Q Yes.
A I did.
A That is correct.
opinion then?
answered that.
windows in?
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to me?
builders list?
A I don't remember.
A I am.
A No.
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Q Did you ever see any pictures come through
it, yes.
status.
A I don't remember.
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4. Defendant Ron intentionally, and with reckless disregard for the
covenants and the law, made repeated and prolonged misstatements of material
facts in order to induce Carroll to act, or refrain from acting, on them. Ron relied
on business from David’s son who was Carroll’s direct competitor in WaterSound
and Watercolor. Each and every time Carroll became suspicious and sought to get
the truth, Ron compounded on his falsehoods. All the while, Ron was under the
Administrative Code. Ron was trained for his job, had special knowledge of
surveying and Covenants yet acted in opposition to his mandate. Ron did so to
A Yes.
A Yes.
Q You are?
Yes.
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to put benchmarks that aren’t on the site when
you’re doing –
o Ron said he’d measure the height of the tower with a tape measure if he
measure.
tower or something?
A Yes.
height survey?
A Yes.
o Ron knew Carroll owned Lot 24 before he conducted his first survey, but
tried to cover up the fact that Mary told him it was Carroll’s property:
A Yes…
yes.
the order?
A Yes.
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Q What I’m wondering about is how would you
A No…
o Ron set out to take a picture of Carroll’s property and construction and put
o Ron knew how to calculate average natural grade at Lot 24, but entered a
false number into his calculations to make the tower appear taller than it was:
dirt, yes.
A Yes.
A Me.
south side.
o Ron knew his average natural grade number was falsified and maliciously,
intentionally, or with gross negligence misrepresented this fact when asked about it on
behalf of WaterSound:
A Yes.
referenced?
A No.
A No.
o Ron met Carroll on Lot 24 and deliberately misled him about why he was
A No.
over to my lot?
Q He did?
A Yeah.
A Yes.
o Ron admitted that when he appeared on site to conduct his special purpose
survey the building did not appear to be taller than any other in WaterSound:
building in WaterSound?
A Yes.
neighborhood?
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5. Defendants WaterSound and Watercolor intentionally, and with
reckless disregard for the covenants and the law, knowingly allowed repeated and
refrain from acting, on them. Each and every time Carroll became suspicious and
sought to get the truth, the Defendants compounded on their falsehoods. All the
while, WaterSound and Watercolor were under the mandate of Watercolor and
the following: (a) WaterSound and Watercolor actively and knowingly participated in the
conduct; (b) The officers, directors, and managers of Watercolor and WaterSound
knowingly condoned, ratified, or consented to such conduct; and (c) WaterSound and
Watercolor engaged in conduct that constituted gross negligence and that contributed to
the loss, damages, and injury suffered by Carroll. As a result, it’s proper to impose
This proffer of evidence provides a reasonable basis that all of the Defendants
acted a) intentionally knowing, and in fact hoping that Carroll would be harmed by their
actions and b) with gross negligence because their actions constitute a disregard of
Carroll’s rights. This showing is sufficient to satisfy the statutory requirement to plead a
CERTIFICATE OF SERVICE
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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 20th day of May, 2011.
_____________________________
John P. Carroll
Box 613524
WaterSound, FL 32461
Tel: (850)231-5616
Fax: (850)622-5618
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