Grande Pointe Under Siege

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR WALTON COUNTY, FLORIDA CHRISTOPHER D. SMITH, MAURISSA L. SMITH, JAMES LINTA, NANCY LINTA, JOSHUA R. NORMAN, PAMILA C. NORMAN, GEORGE GARCIA, LOIS GARCIA, GORDON C. TARVER, BRITTANY H. TARVER, GEORGE OUTMEZGUINE, JANE OUTMEZGUINE, MARK H. WHITLOW, JOY F. WHITLOW, RICHARD M. HOWLAND, III, and KIM BUCCIERO, Plaintiffs, v.

CASE NO.:

D.R. HORTON, INC., and INLET BEACH HOLDINGS, LLC D/B/A GRANDE POINTE PROPERTIES, LLC, Defendants. ___________________________________________________/ COMPLAINT COME NOW Plaintiffs CHRISTOPHER D. SMITH, MAURISSA L. SMITH, JAMES LINTA, NANCY LINTA, JOSHUA R. NORMAN, PAMILA C. NORMAN, GEORGE GARCIA, LOIS GARCIA, GORDON C. TARVER, BRITTANY H. TARVER, GEORGES OUTMEZGUINE, JANIE A. OUTMEZGUINE, MARK H. WHITLOW, JOY F. WHITLOW, RICHARD M. HOWLAND, III, AND KIM BUCCIERO [hereinafter collectively the “CONCERNED OWNERS”], and sue D.R. HORTON, INC. [hereinafter “DR HORTON”], and INLET BEACH HOLDINGS, LLC D/B/A GRANDE POINTE, LLC, and allege as follows:

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GENERAL ALLEGATIONS 1.

The CONCERNED OWNERS are all property owners within the Grande Pointe at

Inlet Beach community located in Walton County, Florida. The Plat of Grande Pointe at Inlet Beach was recorded in Plat Book 16, Page 75, of the Public Records of Walton County, Florida1. The CONCERNED OWNERS’ title is as follows: a.

CHRISTOPHER D. SMITH and MAURISSA L. SMITH were conveyed Lot

20, Grande Pointe, by a Warranty Deed recorded on May 4, 2010, in Official Records Book 2841, Page 345. b.

JAMES LINTA and NANCY LINTA were conveyed Lot 70, Grande Pointe,

by a Special Warranty Deed recorded September 2, 2011, in Official Records Book 2873, Page 534. c.

JOSHUA R. NORMAN and PAMILA C. NORMAN were conveyed Lot 145,

Grande Pointe, by a Special Warranty Deed recorded May 15, 2013, in Official Records Book 2919, Page 4917. d.

GEORGE GARCIA and LOIS GARCIA were conveyed Lot 84, Grande

Pointe, by a Warranty Deed recorded October 26, 2010, in Official Records Book 2852, Page 2350. e.

GORDON C. TARVER and BRITTANY H. TARVER were conveyed Lot

129, Grande Pointe, by a Corporate Warranty Deed recorded on September 21, 2016, in Official Records Book 3021, Page 869.

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All references to the Official Records by Book and Page refer to the Public Records of Walton County, Florida. Further, all references to Grande Pointe refer to Grande Pointe at Inlet Beach pursuant to the Plat thereof as recorded in Plat Book 16, Page 75, of the Public Records of Walton County.

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f.

GEORGES OUTMEZGUINE and JANIE A. OUTMEZGUINE were

conveyed Lot 67, Grande Pointe, by a Special Warranty Deed recorded July 1, 2013, in Official Records Book 2924, Page 213. g.

MARK H. WHITLOW and JOY F. WHITLOW were conveyed Lot 86,

Grande Pointe, by a Warranty Deed recorded May 4, 2010, in Official Records Book 2841, Page 340. h.

RICHARD M. HOWLAND, III, was conveyed Lot 6, Grande Pointe, by a

Special Warranty Deed recorded July 29, 2011, in Official Records Book 2870, Page 4028. i.

KIM BUCCIERO was conveyed Lot 116, Grande Pointe, by a General

Warranty Deed recorded on October 3, 2011, in Official Records Book 2874, Page 4268.

2.

D.R. HORTON, INC. [hereinafter “DR HORTON”] is a foreign profit corporation

registered to transact business in the State of Florida, with a principal address of 301 Commerce Street, Suite 500, Fort Worth, TX 76102.

3.

Inlet Beach Holdings, LLC, is an Alabama limited liability company registered to

transact business in the state of Florida as INLET BEACH HOLDINGS, LLC D/B/A GRANDE POINTE, LLC, a Florida limited liability company [hereinafter “IBH”], with a principal address of 6925 Halcyon Park Drive, Montgomery, AL 36117.

4.

The Declaration of Covenants, Conditions, Restrictions and Easements for Grande

Pointe at Inlet Beach was recorded in Official Records Book 2675, Page 1773 [hereinafter “Declaration”], and amended by instrument recorded in Official Records Book 2676, Page 4884 [hereinafter “First Amendment”], as further amended by instrument recorded in Official Records Book 3009, Page 907 [hereinafter “Second Amendment”], as further amended by instrument recorded in Official Records Book 3014, Page 3836 [hereinafter “Third Amendment”], as further 3

amended by instrument recorded in Official Records Book 3034, Page 1767 [hereinafter collectively the “Declaration”].

5.

On or about April 15, 2014, SE Property Holdings, LLC, purportedly conveyed

Declarant Rights under the Declaration to IBH via a Quit Claim Assignment of Declarant’s Rights Under the Declaration of Covenants, Conditions, Restrictions and Easements for Grande Pointe at Inlet Beach recorded on April 22, 2014, in Official Records Book 2948, Page 1047.

6.

On or about February 28, 2017, IBH purportedly conveyed Declarant Rights under the

Declaration to DR HORTON via a Quit Claim Assignment of Declarant’s Rights recorded on February 28, 2017, in Official Records Book 3034, Page 1773.

7.

On or about February 14, 2017, a Resolution to Add Board Member was executed by

Grande Pointe Homeowners Association, Inc. [hereinafter “GPHOA”] Directors Thomas Johnson and Marc Evans to add Jeff A. Marzello on behalf of DR HORTON to the Board of Directors of GPHOA. A copy of the Resolution to Add Board Member is attached hereto and made a part hereof as Exhibit “A”.

8.

On or about February 15, 2017, a Resolution to Remove Board Member was executed

by Thomas Johnson, Marc Evans and Jeff A. Marzello to remove Defendant CHRISTOPHER D. SMITH as a Director of GPHOA. A copy of the Resolution to Remove Board Member is attached hereto and made a part hereof as Exhibit “B”.

9.

Notice of a Board of Directors meeting for GPHOA for either February 14, 2017, or

February 15, 2017, was never posted pursuant to Article VIII, section 8.2(c) of the Declaration.

10.

On March 9, 2017, a GPHOA special meeting was held. Jeff A. Marzello, conducted

the meeting and called the meeting to order.

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11.

At the meeting, Plaintiff CHRISTOPHER D. SMITH was purportedly removed as a

Director of GPHOA by a vote where DR HORTON cast approximately five hundred forty (540) votes in favor of removing Mr. Smith. All non-DR HORTON members present at the meeting did not vote in favor of removing Mr. Smith as a Director.

12.

At the meeting, Marc Evans and Thomas Johnson purportedly resigned as Directors

of GPHOA. 13.

At the meeting, DR HORTON, through Jeff A. Marzello, announced that it had

appointed Lisa Strickland and Tyler Welden to fill Marc Evans and Thomas Johnson’s positions on the Board of Directors.

14.

Pursuant to Article XII, section 12.3(a) of the Declaration, the prevailing party is

entitled to its reasonable attorney’s fees and costs in enforcing the covenants and restrictions contained in the Declaration.

15.

Pursuant to Article XII, section 12.3(a) of the Declaration, the venue for any disputing

arising pursuant to benefits or obligations contained in the Declaration, shall be determined by a judge and not a jury, with venue solely being in the Circuit Court in and for Walton County, Florida.

COUNT I - DECLARATORY JUDGMENT REGARDING DR HORTON’S DECLARANT RIGHTS 16.

The CONCERNED OWNERS reallege the allegations of paragraphs 1-15 above as if

set forth herein.

17.

Article VII, section 7.2 of the Declaration states:

7.2 Voting Rights. The Association will have two classes of voting membership: (a) Class A. Class A Members are all Owners of Lots other than Declarant, while Declarant is a Class B Member. Class A Members will be entitled to one vote for each Lot owned.

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(b) Class B. The Class B Member is Declarant, which shall be entitled to 10 votes in all matters for each Lot owned by the Class B Member or its affiliates.

Declarant may assign its Class B Membership. The Class B Membership will end and be converted to Class A Membership three months after the last to occur of the following events: (i) The total votes outstanding in the Class A Membership equals the total votes outstanding in the Class B Membership; (ii) All phases of Grande Pointe have been completed and made subject to this Declaration.

18.

Article I, section 1.13 of the Declaration states: “‘Lot’ means any lot shown on a Plat

along with any improvements constructed on the Lot.” 19.

While Article VII, section 7.2(b) of the Declaration provides a mechanism to convert

Class B Membership to Class A Membership, the Declaration does not contain any provision for the conversion of Class A to Class B Membership within the GPHOA. 20.

When it purchased the forty-six (46) “Lots” within Grande Pointe, DR HORTON

became a Class A Member of GPHOA entitled to forty-six (46) votes pursuant to Article VII, section 7.2(a) of the Declaration.

21.

At the March 9, 2017, meeting of GPHOA, Jeff A. Marzello stated that DR HORTON

had five hundred forty (540) votes to cast.

22.

Grande Pointe Estates is a parcel of property annexed into Grande Pointe via the

Second Amendment.

23.

The CONCERNED OWNERS contend that DR HORTON is a Class A Member of

GPHOA entitled to forty six (46) votes, one (1) for each of the forty-six (46) “Lots” it purchased in July of 2016.

24.

The CONCERNED OWNERS contend that DR HORTON does not have any votes

for the parcel known as Grande Pointe Estates, as a Plat of Grande Pointe Estates has not been 6

recorded in the Official Records of Walton County, Florida.

25.

The CONCERNED OWNERS further contend that at the time of executing the Quit

Claim Assignment of Declarant’s Rights, IBH owned no “Lots” within Grande Pointe.

26.

DR HORTON contends that it is a Class B Member of GPHOA pursuant to the Quit

Claim Assignment of Declarant’s Rights recorded on February 28, 2017, in Official Records Book 3034, Page 1773.

27.

DR HORTON contends that it is entitled to five hundred forty (540) votes, ten (10)

votes for each of the forty-six (46) “Lots” purchased in July of 2016, plus ten (10) votes for each of eight (8) un-platted lots known as Grande Pointe Estates.

28.

The CONCERNED OWNERS are in doubt as to the membership and voting interests

of the Parties within the GPHOA. WHEREFORE the CONCERNED OWNERS request that the Court enter a Judgment declaring that DR HORTON is a Class A Member of the GPHOA and is entitled to only forty-six (46) votes within the GPHOA, and granting the CONCERNED OWNERS their attorney’s fees and costs in this action, and granting any and all other relief the Court deems proper and just.

COUNT II - DECLARATORY JUDGMENT REGARDING REMOVAL OF CHRISTOPHER D. SMITH AS A DIRECTOR OF GPHOA 29.

The CONCERNED OWNERS reallege the allegations of paragraphs 1-28 above as if

set forth herein.

30.

Article VII, section 7.4(f) of the Declaration states: “(f) Removal. Any director may

be removed from office, with or without cause by at a majority vote of the Members.”

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31.

The Plat of Grande Pointe at Inlet Beach [hereinafter “Plat”] recorded in Plat Book

16, Page 75, created one hundred forty-six (146) Lots in Grande Pointe.

32.

The CONCERNED OWNERS contend that the Resolution to Remove Board

Member executed on February 15, 2017, by Thomas Johnson, Marc Evans and Jeff A. Marzello is invalid as the Board of Directors is not entitled to remove another Director, but such removal must be by a vote of the membership of GPHOA pursuant to Article VII, section 7.4(f) of the Declaration.

33.

The CONCERNED OWNERS contend that Defendant CHRISTOPHER D. SMITH is

still a Director of GPHOA as the only votes in favor of removing him at the March 9, 2017, special meeting of the GPHOA were cast by DR HORTON. 34.

As discussed supra, the CONCERNED OWNERS contend that at most, DR

HORTON cast forty-six (46) votes in favor of removing CHRISTOPHER D. SMITH as a Director, which is not a majority vote of the members as there are one hundred forty-six “Lots” on the Plat.

35.

As discussed supra, DR HORTON contends that it cast five hundred forty (540) or a

super majority of votes to remove CHRISTOPHER D. SMITH as a Director at the March 9, 2017, special meeting of the GPHOA. 36.

The CONCERNED OWNERS are in doubt as to the status of CHRISTOPHER D.

SMITH as a Director of GPHOA. WHEREFORE the CONCERNED OWNERS request that the Court enter a Judgment declaring that CHRISTOPHER D. SMITH is currently a Director of GPHOA, and granting the CONCERNED OWNERS their attorney’s fees and costs in this action, and granting any and all other relief the Court deems proper and just.

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COUNT III - DECLARATORY JUDGMENT THAT DR HORTON MUST ADHERE TO THE DESIGN CODE OF GRANDE POINTE 37.

The CONCERNED OWNERS reallege the allegations of paragraphs 1-28 above as if

set forth herein.

38.

Article III, section 3.2(a) of the Declaration states in relevant part:

“(a) Construction Subject to Review. All construction, improvements, remodeling, or modification on or to a Lot, except interior alterations not affecting the external appearance of the Lot or improvements on a Lot, must be approved in advance by the Architectural Review Committee.”

39.

As discussed supra, the CONCERNED OWNERS contend that DR HORTON is a

Class A member of GPHOA. 40.

As a Class A member of GPHOA, the CONCERNED OWNERS contend that DR

HORTON is subject to the Grande Pointe Design Guidelines [hereinafter “Design Code”] for any improvement to its Lots in addition to the Architectural Review requirements of the Declaration.

41.

At the March 9, 2017, special meeting of the GPHOA, Jeff A. Marzello, City

Manager for DR HORTON, acknowledged that DR HORTON intends to both follow and enforce the Design Code.

42.

Article III, section 3.2 of the Declaration details the process for architectural review

and approval for construction or improvement on a Lot. Section 3.2(b) states in relevant part that: “No construction on any Lot shall be commenced and no Lot shall be modified except in accordance with the submitted plans. Any modification to the approved plans must also be reviewed and approved by the Architectural Review Committee.”

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43.

The CONCERNED OWNERS contend that DR HORTON is constructing or

improving Lots within Grande Pointe without following the provisions of section 3.2 of the Declaration or approval by the Architectural Review Committee.

44.

At the June 24, 2016, Architectural Review Committee [hereinafter “ARC”] meeting,

the ARC approved the initial concept designs for five (5) of DR HORTON’s floor plans, the Alabaster, Seagrove, Monroe, Captiva, and Bayview. A copy of the minutes from the June 24, 2016, ARC meeting is attached hereto and made a part hereof as Exhibit “C”.

45.

As part of the initial concept design review for DR HORTON’s floor plans, the

ARC’s professional advisor, Scott Kennedy of Kennedy Drafting Service, provided a preliminary review and recommendations on the floor plans. In his June 20, 2016, letter to the ARC, attached as Exhibit “C” to the minutes, Mr. Kennedy stated: “I have reviewed the plans submitted by the above referenced builder. Although none of these homes have adequate documentation to conduct a preliminary review as defined in the Grande Pointe Design Code; I have been instructed to conduct a preliminary review of each building based on general architecture alone. The design reviews here-in are strictly based on the conceptual design of each of the homes and each of the homes will still be subject to specific Grande Pointe Design Code upon final submission.”

46.

DR HORTON has begun the construction or improvements on Lots 1, 4, 5, 8, 9, 14,

16, and 18 of Grande Pointe, by pouring footers for foundations and back filling foundations.

47.

The CONCERNED OWNERS contend that DR HORTON has begun construction or

improvement of said Lots without approval from the ARC in violation of the Declaration.

48.

DR HORTON contends that it is not subject to approval by the ARC as the Declarant.

49.

The CONCERNED OWNERS are unsure as to the validity and correctness of DR

HORTON moving forward with construction or improvements without complying with the 10

architectural review requirements of the Declaration and Design Code.

WHEREFORE the CONCERNED OWNERS request that the Court enter a Judgment declaring that DR HORTON’s actions in beginning improvements and construction on its Lots is in violation of the Declaration, requiring DR HORTON to comply with the architectural review requirements of the Declaration, requiring DR HORTON to comply with the provisions of the Design Code, and granting the CONCERNED OWNERS their attorney’s fees and costs in this action, and granting any and all other relief the Court deems proper and just.

COUNT IV - DECLARATORY JUDGEMENT REGARDING STATUS OF DIRECTORS OF GPHOA 50.

The CONCERNED OWNERS reallege the allegations of paragraphs 1-28 above as if

set forth herein.

51.

Florida Statute §720.303(2) states in relevant part:

“(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. Meetings of the board must be open to all members, except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege... (b) Members have the right to attend all meetings of the board.”

52.

On or about July 14, 2014, the IBH appointed Board of Directors of GPHOA sent a

letter to the homeowners within Grande Pointe stating that at the upcoming July 18, 2014, GPHOA meeting, the Board of Directors would like to select someone currently residing in Grande Pointe to serve as an additional board member. A copy of the July 14, 2014, letter is attached hereto and made a part hereof as Exhibit “D”.

53.

At the July 18, 2014, GPHOA meeting, Plaintiff CHRISTOPHER D. SMITH was

appointed the homeowner representative to the Board of Directors.

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54.

Until February 14, 2017, the Board of Directors of GPHOA consisted of IBH

appointed directors Marc Evans, Thomas Johnson, and Bruce Houle, along with homeowner CHRISTOPHER D. SMITH. 55.

As stated supra, on or about February 14, 2017, the Resolution to Add Board Member

was executed by GPHOA Directors Thomas Johnson and Marc Evans to add Jeff A. Marzello on behalf of DR HORTON to the Board of Directors of GPHOA in place of Bruce Houle, who had purportedly resigned as a Director.

56.

As stated supra, on or about February 15, 2017, the Resolution to Remove Board

Member was executed by GPHOA Directors Thomas Johnson, Marc Evans, and Jeff A. Marzello, to remove CHRISTOPHER D. SMITH as a Director.

57.

No Notice of any Board of Directors meetings for either February 14 or February 15,

2017, were provided to the homeowners.

58.

The CONCERNED OWNERS contend that any action taken by the GPHOA

Directors regarding the Resolutions is ineffective as there was not a properly noticed or conducted Board of Directors meeting to discuss the Resolutions.

59.

The CONCERNED OWNERS contend that Jeff A. Marzello was not properly

appointed to the Board of Directors as a properly notice Board of Directors meeting did not occur to transact business of the GPHOA. 60.

The CONCERNED OWNERS contend that the appointment of Lisa Strickland, and

Tyler Welden as Directors of the GPHOA by DR HORTON is improper as DR HORTON does not have Class B membership status as discussed supra.

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61.

The CONCERNED OWNERS contend that a properly notice Annual Meeting of the

GPHOA be held so that the Class A members can vote on the new Directors of the GPHOA. 62.

DR HORTON contends that it has the authority to appoint Directors as the

“Declarant” within Grande Pointe.

63.

The CONCERNED OWNERS are unsure as to who are the proper Directors of the

GPHOA at this time.

WHEREFORE the CONCERNED OWNERS request that the Court enter a Judgment declaring that the Class A members of the GPHOA are entitled to elect the Board of Directors and require the GPHOA to conduct an Annual Meeting for that purpose, granting the CONCERNED OWNERS their attorney’s fees and costs in this action, and granting any and all other relief the Court deems proper and just.

COUNT V - BREACH OF FIDUCIARY DUTY BY IBH 64.

The CONCERNED OWNERS reallege the allegations of paragraphs 1-28 above as if

set forth herein.

65.

This is an action for damages within the Court’s Jurisdiction.

66.

Pursuant to §720.03(1), Fla. Stat., “the officers and directors of an association have a

fiduciary relationship to the members who are served by the association.”

67.

After receiving the Quit Claim Assignment of Declarant’s Rights Under the

Declaration of Covenants, Conditions, Restrictions and Easements for Grande Pointe at Inlet Beach recorded on April 22, 2014, in Official Records Book 2948, Page 1047, IBH operated as the Declarant of Grande Pointe.

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68.

As Declarant, IBH appointed Marc Evans, Thomas Johnson, and Bruce Houle as

Directors of IBH and members of the ARC. 69.

The IBH appointed Directors failed to conduct Annual Meetings of the GPHOA as

required by §720.306(2), Fla. Stat.

70.

The IBH appointed Directors failed to notice Board of Directors meetings of the

GPHOA as required by §720.303(2)(c), Fla. Stat. The CONCERNED OWNERS believe that Board of Directors meetings occurred on July 18, 2014, October 2, 2014, November 11, 2014, March 6, 2015, June 26, 2015, July 17, 2015, October 27, 2015, February 5, 2016, June 10, 2016, January 18, 2017, February 14, 2017, and February 15, 2017, however notice of the meetings was not provided to the CONCERNED OWNERS. 71.

The IBH appointed Directors failed to select and maintain a Registered Agent in the

State of Florida for the GPHOA as required by §617.0501, Fla. Stat. The Registered Agent selected by the IBH appointed Directors is located in Montgomery, Alabama, with a zip code of 36117. A copy of the 2017 Annual Report of GPHOA attached hereto and made a part hereof as Exhibit “E”.

72.

The IBH appointed Directors failed to prepare or adopt a budget for the GPHOA

annually as required by §720.303(6)(a), Fla. Stat.

73.

The IBH appointed Directors failed to provide the CONCERNED OWNERS with an

annual financial report of GPHOA as required by §720.303(7), Fla. Stat.

74.

By failing to ensure compliance with Florida Statutes, IBH breach its duty to the

CONCERNED OWNERS as members of GPHOA. 75.

Due to IBH’s actions the CONCERNED OWNERS have suffered damages.

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WHEREAS, the CONCERNED OWNERS request that the Court enter a Judgment against IBH for their damages, granting the CONCERNED OWNERS their attorney’s fees and costs in this action, and granting any and all other relief the Court deems proper and just. and for any and all other relief the Court deems proper and just.

COUNT VI – NEGLIGENCE BY IBH 76.

The CONCERNED OWNERS reallege the allegations of paragraphs 1-28 and 67-73

above as if set forth herein.

77.

This is an action for damages within the Court’s Jurisdiction.

78.

As the Declarant for Grande Pointe, IBH owed the CONCERNED OWNERS a duty

of care in its management and operation of the GPHOA. 79.

IBH’s breach the duty of care by failing to comply with the provisions of the

Homeowners’ Association Act, Chapter 720 of the Florida Statues, as detailed supra.

80.

Due to IBH’s actions the CONCERNED OWNERS have suffered damages.

WHEREAS, the CONCERNED OWNERS request that the Court enter a Judgment against IBH for their damages, granting the CONCERNED OWNERS their attorney’s fees and costs in this action, and granting any and all other relief the Court deems proper and just. and for any and all other relief the Court deems proper and just.

DUNLAP & SHIPMAN, P.A. /s/ Michael J. Henry Michael J. Henry Fla. Bar No.: 0069044 2063 S County Highway 395 Santa Rosa Beach, FL 32459-7191 Telephone (850) 231-3315/Facsimile (850) 231-5816 michael@dunlapshipman.com ATTORNEYS FOR PLAINTIFFS 15