E-Copy Received Mar 17, 2010 2:08 PM

IN THE FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

JOHN P. CARROLL,

Plaintiff/Appellant,

V. CASE NO.: 1D1O-643

L.T. CASE: 2009 CA 002021

WATERSOUND BEACH COMMUNITY

ASSOCIATION, INC., WATERCOLOR
COMMUNTTY ASSOCIATION, INC.,
SANDRA MATTESON, DAVID LILIENTHAL, RErJIVE
RONALD VOELKER, MARY JOULE,
JOHN DOE AND JANE DOE, MAR 1 5 2010

Defendants/Appellees JonS.
Clerk Court of App
1st District
/

ON APPEAL FROM THE CIRCUIT COURT

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

APPELLEES' RESPONSE TO APPELLANT'S INITIAL BRIEF

Christopher L. George, Esq.

Scott, Sullivan, Streetman, & Fox, P.C.
Post Office Box 1034
Mobile, Alabama 36633
Telephone: (251) 433-1346
 TABLE OF CONTENTS

TABLE OF
CONTENTS

TABLE OF -
AUTHORITIES ii,iii

SUMMARY OF
ARGUMENT

LEGAL ARGUMENT

Standard of Review 1

Various crucial unsupported/incorrect

Assertions in Appellant's Brief 2

Aühority cited in Appellant's Brief

in Support of his Sunshine Statute
argument is distinguishable and, if
anything, supports the Trial Court's
decision 6

D. The Florida Attorney General's

Advisory Opinion cited by the
Plaintiff does not support the
Plaintiff's Sunshine Statute
Argument 10

CONCLUSION 12
 TABLE OF AUTHORITIES

Cases

Smith v. Coalition to Reduce Class Size,

827 So.2d 959 (Fla. 2002)

Operation Rescue v. Women 's Health Ctr., Inc.,

626 So.2d 664, 670 (Fla. 1993) 2

Town of Palm Beach v. Gradison,

296 So.2d 473 (Fla. 1974) 7,8,9

News - Press Publishing Co., Inc. v. Carlson,

410 So.2d 546 (Fla 2' 1982) 7,8,9

Krausev. Renö,
366 So.2d 1244 (F1a3'' DCA 1979) 8,9,11

Wood v. Marston,
442 So.2d934(Fla. 1983) 9

Daniels v. Bryson,
348 So.2d 679 (Fla. 3'' DCA 1989) 9

City ofJacksonville v. Wilson,

157 Fla. 838, 27 So.2d 108 (1948) 10

Statutes

§720.303 (a), Fla Stat (2009) 1,3

§119.01 (1), FlaStat. (2009) 1,3

§286.011, Fla Stat (2009) 1

-11-
Other Authorities

AGO 99-5 3 - Sunshine Law, architectural review committee 10, 11

 SUMMARY OF ARGUMENT

The Trial Court did not abuse its discretion by denying the Plaintiff's Motion

for Injunction in light of the true facts and arguments presented by the Plaintiff and

the law pertaining to the issuance of permanent injunctions such as that sought by the

Plaintiff. As such, the Trial Court's decision should not be disturbed on appeal.

LEGAL ARGUMENT

A. Standard of Review

Plaintiff/Appellant John Carroll ("Plaintiff") filed a Motion for Injunction

("Plaintiff's Motion") seeking to permanently enjoin Defendants/Appellees

Watersound Beach Community Association, Inc. ("Watersound") and Sandra

Matteson ("Matteson") from allegedly withholding records the Plaintiff contends he

is entitled to review either as a member of the Watersound HOA under Florida's

HOA Statute 720.303 or pursuant to Florida's Sunshine Statutes 119.01 (1) and

286.011. The Trial Court denied the Plaintiff's Motion by way of an order summarily

denying the Plaintiff's Motion without explanation. (R12) This Honorable Court's

review of that denial is not, as the Appellant's Brief asserts in part, subject to a de

novo standard of review. Rather, it is subject to an abuse of discretion standard of

review since the decision of the Trial Court "rests on factual matters." Smith v.

Coalition to Reduce Class Size, 827 So.2d 959, 960 (Fla. 2002). As the Florida

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 Supreme Court has further explained, such orders of the trial court "are clothed with

a presumption of correctness and will remain undisturbed unless the petitioning party

can show reversible error." Operation Rescue v. Women 's Health Ctr., Inc., 626

So.2d 664, 670 (Fla. 1993). In short, the Trial Court's order must be affirmed "absent

a showing of abuse of discretion." Id. Abuse of discretion, is judged by the

following general reasonableness standard:

In reviewing a true discretionary act, the appellate court must fully

recognize the superior vantage point of the trial judge and should apply
the "reasonableness" test to determine whether the trial judge abused his
discretion. If reasonable men could differ as to the propriety of the
action taken by the trial court, then the action is not unreasonable and
there can be no finding of an abuse of discretion. The discretionary
ruling of the trial judge should be disturbed only when his decision fails
to satisfy this test of reasonableness.

Id. (citations omitted)(emphasis added).

The Plaintiff simply can not meet the heavy burden of establishing an abuse of

discretion in this instance.

B. Various crucial unsupported/incorrect Assertions in Appellant's Brief

The Plaintiff contends that the Trial Court "reasoned that a citizen would not

be harmed by WaterSound and WaterColor's policy of withholding public records."

(Appellant's Brief, p. 8.) However, the record is devoid of any evidence that there

has ever been or is any such policy in place or, for that matter, that anyone other than

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 the Plaintiff has ever even asserted that they have been denied access to any such

records. Moreover, as the transcript of the hearing does not contain any assertions

by The Honorable Judge LaPorte that he was of the opinion that a citizen would not

be harmed if such a policy existed and as the Trial Court simply entered an order

summarily denying the Plaintiff's Motion without explanation, there is no basis for

the Plaintiff to assert that the Trial Court in any way held or premised its ruling on a

finding that a citizen would not be harmed if such a policy existed.

The Plaintiff also asserts that the Trial Court decided that the records of the

Design Review Board (DRB) of WaterSound and WaterColor "are not 'public

records' as described by 119.01 1(1)." (Appellant's Brief, p. 8.) Again, nothing in the

transcript of the proceedings or in the order denying the Plaintiff's Motion supports

the assertion that the Trial Court made any such finding or premised its ruling on any

such finding.

The Plaintiff repeatedly attempts to create the impression that his requests for

access to the records at issue have been routinely and summarily denied. This is

simply not true. By way of one particularly stark example, the Plaintiff points to a

string of e-mails initiated in March 2009 and flowing through October 29, 2009

which, he asserts, shows that "the records requested pertained to the same permit

type documents repeatedly requested over the course of 723 days, yet not made

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 available for review." (Appellant's Brief, p. 4, citing Ri 1.) This string of e-mails

demonstrates something else entirely. The first e-mail in this string was sent from

the Plaintiff to Tracy Regan, the design review coordinator for WaterSound, on

Wednesday, March 25,2009. (Ri 1, p.3.) This e-mail stated that the Plaintiff needed

to review some of the records pertaining to WaterSound in order to prepare an

appropriate response to a letter the Plaintiff had received from Tracy Regan. Ms.

Regan responded to this e-mail in less than 2 hours and advised the Plaintiff that she

could have the records he requested ready for review by the Plaintiff on Tuesday or

Wednesday of the following week, less than one week after his request. (Ri 1, p. 2.)

The Plaintiff sent Ms. Regan an e-mail response later that same evening stating:

Thanks Tracy for your quick response. I'll see you on the earlier free
day, Tuesday. Can I please come to the office at 11:00?

(Rh, p.2.) Ms. Regan responded with an e-mail stating:

That will be fine. I will see you Tuesday at 11:00.

(Ri 1, p.1) In short, this very e-mail string introduced by the Plaintiff establishes that

the Plaintiff did receive a rapid response to his March 2009 request for access to

records and that arrangements were made for him to review the records within 1 week

after his request. Lest there be any doubt about as to whether the review actually took

place, counsel for WaterSound and Matteson represented to the court during the

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 hearing on Plaintiff's Motion that the Plaintiff actually came to review the records on

that occasion and that he was given access to all of the records he requested. (T 14.)

The Plaintiff did not dispute this assertion even though counsel for WaterSound and

Matteson invited the Plaintiff to tell the Trial Court if this assertion was incorrect.

(T14) In light of the foregoing, it is clear that, contrary to the Plaintiff's assertion, in

March of 2009, he received and expressed appreciation for the "quick" response to

his request for access to the records and that he was granted access to the records he

sought at that time within 1 week.

In regards to the argument that the records at issue are subject to Florida's so-

called Sunshine Statutes, Plaintiff would have this Honorable Court believe that he

presented evidence to the Trial Court to establish that "Walton County has delegated

full authority to the WaterSound and Watercolor design review boards, in their sole

and absolute discretion, to approve or reject plans or builders for County building

permits." (Appellant's Brief, p. 12, emphasis added) However, the only evidence in

this regard presented to the Trial Court was a document entitled "Walton County

Building Department Checklist." (R7.) Item 10 on this checklist states "Approval

Letter from the Architectural Review Committee if Building in a Subdivision that

requires approval to build." The Plaintiff did not offer any evidence (1) that absent

such an approval letter, a building permit will not be issued; (2) that Walton County

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 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); or, perhaps most importantly, (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 (or,

for that matter, whether WaterSound and/or Matteson have ever even failed to

provide, refused to provide, or even delayed in providing him or anyone else with

such an approval letter). Moreover, given the fact that WaterSound and/or Matteson

are in no way involved in any of the other 12 items on the check list introduced into

evidence, the reasonable - if not clear, inescapable - conclusion is that the officials

with the Walton County Building Department are the ones who review and evaluate

the materials submitted with the checklist and decide whether to issue building

permits, not WaterSound and/or Matteson.

C. Authority cited in Appellant's Brief in Support of his Sunshine Statute

argument is distinguishable and, if anything, supports the Trial Court's decision

The Plaintiff asserts that the case at bar is "analogous to, but more poignantly

valid than" five decisions cited but not discussed or analyzed in the Appellant's Brief.

(Appellant's Brief, p. 12) Each of these decisions is readily distinguishable from the
 case at bar. The first, Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla. 1974),

did not involve a ruling on an injunction and, thus, was not subject to the same

standard of review applicable in the case at bar. Rather, the case involved a certified

question from the District Court of Appeal as to whether a citizen's planning

commission "composed of private citizens, which was established by the Town

Council and the members thereof appointed by the Town Council" was subject to

Florida's Sunshine Statutes. Id. at 475. The citizens' planning commission was

"conceived and formed by the Town Council for the purpose of working with the

planning consultant so that the plan produced would be consistent with the land-use

controls intended by the citizens." Id. Not surprisingly, the'Supreme Court of Florida

answered the certified question in the affirmative based on its conclusion that the

commission was "an arm of the Town Council." Id. The case at bar does not involve

any such government conceived and created entity.

The second decision cited by the Plaintiff, News-Press Publishing Co., Inc. v.

Carison, 410 So.2d 546 (Fla. 2 1982), involved meetings held by internal budget

and other committees of the Lee Memorial Hospital. The hospital and its board of

directors were created by statute and statutorily authorized to adopt an annual budget.

The board of directors delegated its budgeting responsibility to an ad hoc internal

budget committee. Not surprisingly, the District Court of Appeal held that the
 committee was subject to the Sunshine Statutes. This is clearly a far cry from the

situation at issue herein.

The third decision cited by the Plaintiff, Krause v. Reno, 366 So.2d 1244 (Fla.
3rd
DCA 1979), is similarly distinguishable from the case at bar. Like Gradison and

Carison, Reno involved a committee created by a government official, specifically

a city manager, to assist him in carrying out an aspect of his work, specifically,

screening applications and making recommendations for the chief of police. The

District Court of Appeals that held that, in so doing, the city manager created a

"board"within contemplation of the Sunshine Statutes. Thus, the District Court of

Appeals went on to affirm the trial court's decision granting an injunction requiring

the committee to comply with the Sunshine Statutes. The opinion in Reno did make

a distinction worth noting. Specifically, in discussing the intention of the Legislature

in enacting the Sunshine Statutes, the court stated "[i]t seems clear from the language

of the broadly written Sunshine Law that the Legislature intended to open to the

public all meetings of any body over which its authority extends at any time when

official acts are to be taken by that body." Id. at 1252 (emphasis added). This raises

an important distinctionllimitation that should not be overlooked in the case at bar.

Specifically, even assuming there was evidence and legal authority to support a

finding that WaterSound's and/or Matteson's involvement with obtaining building

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 permits were subject to the Sunshine Statutes, the Sunshine Statutes would only apply

to those "official acts" pertaining to the issuance of building prmits, not to the broad

and extensive scope of materials and information at issue in the Plaintiff's Motion.

The fourth decision cited by the Plaintiff in support of his Sunshine Statue

argument is Wood v. Marston, 442 So.2d 934 (Fla. 1983). At issue in Wood was

whether a search and screen committee appointed by the president of the University

of Florida to solicit and screen applications for the deanship of the university law

school was subject to the Sunshine Statute. The Supreme Court of Florida concluded

that, just as in Gradison, Carlson, Reno - which were all cited in the opinion - the

advisory group to which decision making authority had been delegafed was subject

to the Sunshine Statutes.

The final case cited by the Plaintiff in support of his Sunshine Statute
3rd
argument, Daniels v. Bryson, 348 So.2d 679 (Fla. DCA 1989) is equally

distinguishable. Moreover, the dicta in that decision actually makes it plain that the

Plaintiff failed to even attempt to make a showing of yet another necessary element

to obtaining the injunctive relief he sought. Daniels involved an attempt to obtain

documents associated with a panel appointed to review problems within the City of

Miami Fire Department. Again, this is clearly factually distinguishable from the

situation in the case at bar. Moreover, the District Court of Appeal in that case

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 reversed the trial court's decision granting a permanent injunction. In so doing, the

court explained that, although the records associated with the panel's work were

subject to the Sunshine Statutes, the complainants were not entitled to a permanent

injunction as the complainants failed to make the requisite "showing of a likelihood

of future violations." Id. at 681. As the court went on to explain, "Florida adheres to

the rule that 'an injunction will not be granted where it appears that the acts

complained of have already been committed and there is no showing by the pleadings

and proof that there is a reasonably well grounded probability that such course of

conduct will continue in the future." Id. at 681 (quoting City of Jacksonville v.

Wilson, 157 Fla. 838, 844, 27 So.2d 108, 111(1948)). In the case at bar, the Plaintiff

failed to offer any evidence to establish any such "reasonably well grounded

probability" that the alleged conduct of which he complained in his motion for

injunction was likely to continue in the future.'

P. The Florida Attorney General's Advisory Opinion cited by the Plaintiff does
not support the Plaintiff's Sunshine Statute Argument

The Plaintiff contends that the Florida Attorney General's Advisory Opinion

Appellees submit that the Plaintiff could not hope to make any showing at present given the fact that
all of the records within the scope of the Plaintiffs Motion have been placed in a conference room
at the offices of Gary Shipman, Esquire (who serves as counsel for Watersound on various matters)
and have been made and will remain available for inspection by the Plaintiff from 9:00 a.m. to 4:30
p.m. Monday through Friday,.excluding holidays.

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AGO 99-53 entitled "Sunshine Law, architectural review committee," supports his

position herein. (Appellant's Brief, p. 7.) However, a cursory reading of that opinion

reveals a distinction that is not present in the case at bar. The distinction is critical

since, as noted in that opinion, "the activities of a homeowner's association

architectural review committee would not normally be subject to the Sunshine law."

Florida Attorney General, AGO 99-53, p. 3. The distinction made in that opinion,

and the basis for the opinion that the Sunshine Statutes applied to the homeowner's

association in question, was that the county at issue, St. John's County, had enacted

a county ordinance "elevating the decisions of such committee to a prerequisite step

in obtaining a building permit." This was something which, according to the opinion,

"[gave] the committees the authority to review and approve building permit

applications before they [would] be considered by the county building department."

Id. The record in the case at bar is devoid of any evidence that a similar statute exits

in Walton County, Florida or that WaterSound and/or Matteson has or have ever

exercised any such authority. Thus, any reliance on this opinion from the Florida

Attorney General is misplaced. Moreover, as noted in the above discussion

3rd
concerning the decision in Krause v. Reno, 366 So.2d 1244 (Fla. DCA 1979),

even if the Sunshine Statutes were applicable to the case at bar, the Sunshine Statutes

would only apply to those "official acts" pertaining to the issuance of building

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permits, not to the broad and extensive scope of materials and information at issue in

the Plaintiff's Motion.

CONCLUSION

In light of the foregoing, the Trial Court's decision denying the Plaintiff's

Motion clearly passes the "reasonableness" test to be applied when reviewing such

discretionary rulings. In fact, Appellees respectfully submit that, in light of the true

facts presented to the Trial Court and contained in the record on appeal, had the Trial

Court granted the Plaintiff's Motion, its actions would not have passed the

reasonableness test. Therefore, the Trial Court's decision is due to be affirmed.

Respectfully submitted,

CHRISTOP G GE (05665)
Defendants .tersound Beach
for A

Community Association, Inc., David

Lilienthal, Mary Joule and Sandra Matteso

OF COUNSEL:

SCOTT, SULLIVAN, STREETMAN & FOX, PC

P OBox 1034
Mobile, AL 36633
Telephone: (251) 433-1346
Facsimile: (251) 433-1086

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 CERTIFICATE OF SERVICE

I hereby certify that I have on this the 1 O' day of March, 2010, served a copy
of the foregoing pleading upon the party stated below by placing a copy of same in
the United States Mail, properly addressed and first-class postage prepaid:

John P. Carroll
Post Office Box 613524
WaterSound, Florida 32461

Mark D. Davis
694 Baldwin Avenue, Suite 1
Post Office Box 705
DeFuniak Springs, Florida 32435

OF-eOTJSEL 7

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