E-Copy Received Mar 16, 2010 12:50 PM

IN THE FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

JOHN P. CARROLL,

Plaintiff/Appellant,

v. CASE NO.: 1D10-643

L.T. CASE: 2009 CA 002021
WATERSOUND BEACH COMMUNITY
ASSOCIATION, INC., WATERCOLOR
COMMUNITY ASSOCIATION, INC.,
SANDRA MATTESON, DAVID LILIENTHAL,
RONALD VOELKER, MARY JOULE,
JOHN DOE AND JANE DOE,

Defendants/Appellees.
______________________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE FIRST JUDICIAL CIRCUIT,
IN AND FOR WALTON COUNTY, FLORIDA
CASE NUMBER 2009 CA 002021
___________________________________________________________________

APPELLAT'S REPLY BRIEF

___________________________________________________________________

John P. Carroll, Pro Se

Box 613524
WaterSound, FL 32461
Telephone 850-231-5616
Facsimile 850-622-5618
AAbsolute@aol.com
 TABLE OF COTETS

TABLE OF
CONTENTS................................................................................................................i

TABLE OF
AUTHORITIES.........................................................................................................ii

SUMMARY OF
ARGUMENT.............................................................................................................1

ARGUMENT IN RESPONSE AND REBUTTAL………………………………...2

CONCLUSION..........................................................................................................7

CERTIFICATE OF
SERVICE...................................................................................................................8

CERTIFICATE OF
COMPLIANCE..........................................................................................................9

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Cases

Byron D. Keesler and Leroy Boyd, v. Community Maritime Park Associates

(09-1659) Florida 1st DCA, 3/10/10………………………………………………...7

Statutes

§119.011(11), Fla. Stat. (2009)………………………………………………….….7

§286.011, Fla. Stat. (2009)……………………………………………………….…7

§720.303, Fla. Stat. (2009)………………………………...……………………..…7

Other Authority

AGO 99-53 Architectural Review Boards are Subject to the Sunshine Law……….7

ii
 SUMMARY OF ARGUMET

First, the Response (Answer Brief) of Appellees WaterSound and Matteson

may contain technical errors of form or procedure; however Appellant Carroll

respectfully requests this court please proceed to their review of the briefs and final

disposition of this appeal.

The cases appearing in their Table of Authorities are not listed alphabetically,

but they are few. Their Statutes are not listed in numerical order, but they are few.

The footnote on Page 10 is not in the same size font as the rest of the brief, but it

should be stricken because it is based upon “reported” actions of Appellees occurring

in the past 10 days, and is not based on the record in this appeal. Striking that footnote

of the Answer Brief is proper and cures the font violation. The Answer Brief contains

no font certificate, but Appellant Carroll prays this court accept that brief nonetheless.

Carroll cannot find the Answer Brief on eDCA, but Carroll did receive a hard copy on

March 15 which was postmarked March 11, 2010. Appellant respectfully submits that

should this court reject Appellees Answer Brief, this would be more prejudicial to

Appellant, and this court, than accepting the brief “as is”.

Second, Appellants’s Reply to the Answer Brief can be summed up as follows;

each of the statements of fact or arguments of case law contained in the Answer Brief

commence on valid ground only to stop, cut short, when the next sentence would be in

1.
favor of Appellant and the issuance of the injunction.

ARGUMET I RESPOSE AD REBUTTAL TO ASWER BRIEF

To Appellees Section A. Standards of Review: At page 1 of the Answer Brief,

Appellees argue against a de novo review. Carroll submitted, in his Initial Brief, that

the lower tribunal misapplied the law. Carroll concedes that the lower tribunal

appeared to summarily deny the petition for injunction (T16). The Order denying the

injunction, prepared by Appellees, was equally devoid of explanation (R12). However,

as a matter of law, the trial court had everything required to issue the injunction. I ask

this court to consider the parties respective arguments as follows: If the Circuit Court

summarily denied Carroll’s petition for injunction, why should WaterSound get to

decide that the summary disposition was based on fact instead of law?

To Appellees Section B. Crucial Unsupported Assertions: Appellant Carroll

provided the lower tribunal with factual assertions and (7) Exhibits supporting same in

his original petition for injunction (R 2). The exhibits brought forth at the hearing

showed that for over 700 days, Carroll sought HOA and DRB records from

WaterSound and Matteson. The Exhibits and testimony showed that the records

requests were not honored (T 4, 5, 6, 7, 8, 9, 10, 11, 15, 16). WaterSound, Watercolor

and Matteson’s Answer Brief points to only (1) purported instance of WaterSound

allowing Carroll to inspect the records at issue (Answer Brief pages 3, 4).

2.
 Appellees submit that because:

A. Carroll asked for review of the records,

B. WaterSound immediately set a date and time,

C. Carroll immediately thanked them for setting the date and time, and

D. Carroll subsequently appeared for the review… that is all that is required to defeat

the issuance of an injunction. Each of those statements of fact contained in the

Answer Brief commence on valid ground only to stop, cut short, when the next

sentence would be in favor of Appellant and the issuance of the injunction. If this

court would kindly review the “string of e-mails” (R11, T 9 and 10) you will find that

WaterSound did not bring the records requested to the meeting. The last paragraph of

the string of e-mails reads, “You were most efficient by setting up the meeting and

preparing the spreadsheet showing the 17 active jobs in WaterSound Beach. You did

not provide me the responses of the homeowners and your documents were limited to

just 17 active projects in WaterSound Beach. When can I expect the responses of the

homeowners and the documents on the earlier projects?”

I submit that the 1st DCA is at one disadvantage as it relates to the record.

Appellant, Appellees and the lower tribunal all have the advantage of clear knowledge

of the breadth of the WaterSound and Watercolor communities in Walton County,

which constitute nearly 3,500 residential properties. It was unnecessary to note this to

3.
the Honorable W. Howard LaPorte. If you live in Walton County it goes without

saying that The St. Joe Company’s projects are omnipresent.

WaterSound argues that Walton County has not delegated full authority to

WaterSound and Watercolor’s design review boards, in their sole and absolute

discretion, to approve or reject plans or builders for County building permits (Answer

Brief 5 and 6). WaterSound submits that the only record evidence offered by Carroll

was the Walton County Building Department Checklist (R 7). As WaterSound shows

this court, that checklist states “Approval Letter from the Architectural Review

Committee if Building in a Subdivision that requires approval to build.” Carroll agrees

with WaterSound and Matteson, this is a pre-requisite for obtaining a building permit,

case closed.

Appellees go on to make (3) additional points which are bulleted. I will rebut

each. Per Appellees, Carroll did not offer any evidence:

(1) “that absent such an approval letter, a building permit will not be issued.” In

response, I direct this court to Pages 6 and 7 of the Transcript. I entered the Walton

County Building Department Checklist into evidence, without objection. I informed

the court that I had the Walton County Building Department and the Walton County

Planning Official in the hall to testify. Counsel for Appellees stipulated on record,

“Well, we don't dispute, Your Honor, that as noted on Attachment B that he's

4.
introduced into evidence that you do have to have approval from the architectural

review committee before you can build. So if he's calling them to establish that, there's

no need to do that.”

(2) “that Walton County has, in fact, delegated full authority to determine

whether such permits should be issued to any architectural review committees (i.e., that

the architectural committee indeed had “sole and absolute discretion” with respect to

whether a building permit would be issued)” In response and rebuttal, Walton County

requires approval of the WaterSound and Watercolor Design Review Boards as a pre-

requisite to obtaining a Walton County building permit. Without satisfying the pre-

requisite, no builder can obtain a County building permit. This is clear and simple.

(3) “that he or anyone else for that matter has ever been unable to obtain a

building permit as a result of WaterSound’s and/or Matteson’s wrongful refusal to

provide him with such an approval letter” emphasis added. In response, Appellees

have pulled this question of “wrongful” from thin air. Right or wrong, the question is

whether or not approval is required from WaterSound and Watercolor as a pre-

requisite for obtaining a Walton County Building Permit. It is. However, if it helps

the court further, I direct the Court to Exhibit A of the original Petition for Injunction

which is a simple and clear statement directly from the Walton County Building

Official and Planning Official to Carroll. Appellant Carroll asks both officials, in

5.
writing, Q: “I want to permit a new single family residence in WaterSound but the

plans are not approved by the DRB. Can I obtain a Walton County Building Permit

anyway? A: “No, I have to have approval from WaterSound. Sorry!”

Appellant Carroll, will briefly respond to Appellees arguments concerning the

case law presented thus far and will add a new 1st DCA case which further supports

Carroll’s appeal.

Each case presented thus far all dealt with advisory committees, of one form or

another, who sit in a review capacity delegated by our government. In each case, the

documents generated during the review that pertain to material matters, have all been

found to be subject to the Sunshine Statute. In this injunction and appeal, Appellant

Carroll, has not asked any court to allow Carroll to be heard during their deliberations.

Carroll has only asked for a review of the documents material to the decision making

process. The injunction in the instant case first showed the lower tribunal that

WaterSound, Watercolor and Matteson deliberately withheld DRB and HOA

documents from Carroll. Carroll asked the lower tribunal for a narrow injunction to

enjoin a future violation resembling the same conduct. WaterSound, Watercolor and

Matteson argued that now that they plan to allow Carroll the review, based solely on

formal discovery, this renders the injunction moot. It would render the injunction

moot, if they agreed that these documents were subject to review in accordance with

6.
the Sunshine Statutes 119.01 and 286.011 and HOA Statute 720.303. That’s not what

WaterSound, et al have done though. WaterSound, et al, have decided that they would

turn over the records, withheld from Carroll for nearly 3 years now, as part of formal

discovery. They were not shy about informing the lower tribunal that they would not

permit review of new records of the HOA and DRB in the future. (T 12 and 13)

Carroll is a Florida Licensed Building Contractor and owner in these

communities. Carroll, and the community at large, have a right to know what goes on

behind the closed doors of the HOA and DRB concerning building permits and

suspension, revocation and discipline of licensed contractors.

AGO 99-53 couldn’t make a more pure analogy to this case. If a Design Review

Board’s approval is required as a pre-requisite to obtaining a building permit, that

design review board’s records are subject to the Sunshine Statute.

This court’s most recent opinion in Byron D. Keesler and Leroy Boyd, v.

Community Maritime Park Associates makes Carroll’s point here as well. Carroll does

not seek an injunction so he can be heard. Carroll seeks an injunction which exposes

these records to the sunshine.

COCLUSIO

For the above-mentioned reasons, Plaintiff Carroll contends that the trial court

7.
committed reversible error and abused its discretion by denying the Petition for

Injunction, and thus Carroll requests that this Court reverse the trial court’s denial of

Injunction and remand with instructions for the immediate issuance of the injunction.

Respectfully submitted,

_____________________________
John P. Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
AAbsolute@aol.com

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, and to Gary Shipman, Esq., 1414 County Highway 283 South, Suite B, Santa
Rosa Beach, FL 32459, Attorneys for Appellees, by hand delivery or certified mail this
17th day of February, 2010.
_____________________________
John Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
AAbsolute@aol.com

8.
 CERTIFICATE OF COMPLIACE

I HEREBY CERTIFY that the lettering in this brief is Times New Roman 14-
point Font and complies with the font requirements of Florida Rule of Appellate
Procedure 9.210(a)(2).
_____________________________
John Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
AAbsolute@aol.com

9.