IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

IN AND FOR WALTON COUNTY, FLORIDA

CIVIL DIVISION

JOHN P. CARROLL,

Plaintiff, Case No.: 09CA002021

v.

WATERSOUND BEACH COMMUNITY ASSOCIATION, INC.,

Florida Corporation
DAVID LILIENTHAL, individually
and as Director,
MARY JOULE,
SANDRA MATTESON,
RONALD VOELKER,
JOHN DOE, JANE DOE, and OTHER UNKNOWN
CONSPIRATORS

Defendants.

____________________________________________/

PLAINTIFF’S MOTION AND/OR PETITION FOR

DECLARATORY JUDGEMENT-SECRETED INSPECTIONS

Plaintiff, JOHN CARROLL (“Plaintiff”), pursuant to Florida Statute 86.011,

requests this Court determine the construction, right, procedure, lien rights, enforceability

terms and validity of Defendants’ WaterSound Beach Community Association, Inc.

(“WaterSound”), Board of Director David Lilienthal (“Lilienthal”), Mary Joule

(“Joule”), Ronald Voelker ( “Voelker“) and Sandra Matteson’s (“Matteson”) acts of

retaining and conducting an inspection of the construction at Lot 24, Phase IV

WaterSound Beach without prior Notice to Plaintiff.

1. Venue is proper in this Court as venue has previously been conferred to

this Court in this action, all parties to this action are located in this jurisdiction, the

documents to be construed have been recorded in the Walton County Official Records,

the property that is the subject matter of this action is located in Walton County and the

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actions that are the subject matter of this suit occurred in Walton County.

2. WaterSound is a community located within Walton County which is

encumbered by Declarations of Covenants, Conditions and Restrictions (hereinafter

“Conditions”) first recorded in the Official Records of Walton County on September 10,

2001. (Exhibit A)

3. WaterSound has recorded additional Covenants, Conditions and

Restrictions into the Official Records of Walton County, however none mention the Right

to Notice of Design or Construction Claims provision or any similar provision that is the

subject of this declaratory action.

4. At some point prior to May 16, 2008, an unknown party involved with

WaterSound ordered an inspection of the construction at Lot 24 from Voelker who

entered upon Lot 24, conducted an inspection and produced a Special Purpose Survey

which purported to certify the height of the construction improvements thereon. (Exhibit

B)

5. The act of ordering and conducting such an inspection is controlled by the

Condition’s Articles 10.7 and 10.8 which read in their entirety;

10.7. Easement to Inspect and Right to Correct.

Declarant reserves for itself and others it may designate the right, but not the

obligation, to inspect, monitor, test, redesign, and correct any structure, improvement, or

condition on any portion of WaterSound, including Lots, and a nonexclusive easement of

access throughout the Community to the extent reasonably necessary to exercise such

right. Declarant’s rights and easement in this regard shall not in any way assign or

diminish an Owner’s responsibility for the maintenance and care of his or her Lot.

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 Except in an emergency, entry onto a Lot shall be only after reasonable notice to

the Owner and no entry into a dwelling or other structure on a Lot shall be permitted

without the Owner’s consent, which consent shall not unreasonably be withheld,

conditioned, or delayed. The failure or refusal to permit reasonable access to the Lot for

the purposes contemplated under this paragraph shall excuse Declarant or its designee

from responsibility for repairs or damages relating to defective workmanship or

materials. The Person exercising this easement shall promptly repair, and pay for,

any resulting damage. (Emphasis added)

10.8 Right to Notice of Design or Construction Claims.

No Person shall retain an expert for the purpose of inspecting the design or

construction of any structures or improvements within WaterSound in connection with or

in anticipation of any potential or pending claim, demand, or litigation 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 opportunity to meet with the

property Owner and conduct an inspection.

6. Plaintiff is and was the Owner and the Builder of Lot 24.

7. Plaintiff was given no notice that the inspection was ordered.

8. Plaintiff was given no notice that Voelker would be entering upon Lot 24.

9. Plaintiff did not give consent to allow Voelker to enter upon Lot 24.

10. Voelker and possible others entered into the structure to perform the

inspection or testing without Plaintiff’s consent which is strictly prohibited.

11. Plaintiff encountered Voelker at the corner of Lot 24 on May 16, 2008.

12. May 16, 2008, Plaintiff asked Voelker what he was doing at the Southwest

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corner of Lot 24. Voelker intentionally misled Plaintiff by stating that he was conducting

a survey several Lots away and was looking for his reference point.

13. Voelker’s Special Purpose Survey was issued to WaterSound and other

unknown parties who used the Survey to declare Plaintiff in violation of WaterSound and

Walton County height regulations. (Exhibit C)

DECLARATORY JUDGEMENT

14. Plaintiff repeats and realleges each and every allegation contained in

Paragraphs 1 through 12 as if fully set forth herein.

15. An actual controversy exists between Plaintiff and WaterSound as to

whether WaterSound is entitled to enter upon Lots within WaterSound, or instruct others

to do so, as described herein.

16. To protect its rights and interests, Plaintiff requires a Declaration that

WaterSound does not have the authority to commit the acts described herein.

WHEREFORE, Plaintiff requests this Court take jurisdiction over this matter and

enter judgement as follows:

17. That this Court determine and declare that WaterSound does not have the

legal right or authority to enter upon Lots within WaterSound without following the

Condition’s in strict conformance.

18. In accordance with F.S. 86.061, allow Plaintiff to request supplemental

relief, by Motion, if the Court grants Declaratory Judgement.

19. Grant such other further relief as may be just and proper.

I HEREBY CERTIFY that a copy of the foregoing has been furnished to

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CHRISTOPHER L. GEORGE, ESQ. and Mark Davis, Esq. by regular mail this 14th day
of January, 2010.

_____________________________
John P. Carroll
Box 613524
WaterSound, FL 32461
Tel: (850)231-5616
Fax: (850)622-5618

Dated: January 13, 2010