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I� THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

I� A�D FOR WALTO� COU�TY, FLORIDA

CIVIL DIVISIO�

JOH� P. CARROLL,

Plaintiff, Case �o.: 09CA002021

v.

WATERSOU�D BEACH COMMU�ITY ASSOCIATIO�, I�C., Florida Corporation

DAVID LILIE�THAL, individually

and as Director,

MARY JOULE, SA�DRA MATTESO�,

RO�ALD VOELKER,

WATERCOLOR COMMU�ITY ASSOCIATIO�, I�C.

JOH� DOE and JA�E DOE

Defendants.

____________________________________________/

PLAI�TIFF’S MEMORA�DUM I� OPPOSITIO� TO DEFE�DA�T

WATERSOU�D’S MOTIO� FOR SUMMARY JUDGME�T

COMES NOW, Plaintiff John Carroll (Carroll) who files this memorandum in

opposition and rebuttal to the Defendant’s motion for summary judgment.

Defendants WaterSound have moved for a Summary decision in this case.

WaterSound plead that there are no genuine issues of material fact remaining for the jury

to decide. WaterSound rests its entire Motion on a very vague assertion that WaterSound

and its DRB are two distinct and separate entities. What is their proof of fact? Their

attorney Gary Shipman says they are. This is the same Gary Shipman who has changed

his position and testimony however and whenever he thinks it best suits his need. Gary

Shipman has no credibility. Gary Shipman appears to have no problem lying under oath.

Gary Shipman will work with anyone ex parte, without regard for their legal stature or

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office if it helps to advance the goals of his club. Gary Shipman’s assertions and

statements under oath will be scrutinized through other listed witnesses’ testimony at

trial. At that time the jury will make some factual determinations about Gary Shipman’s

ultimate credibility.

The Court knows, but Carroll will remind it, that without the WaterSound

Declaration of Covenants, Conditions and Restrictions there would be no WaterSound

DRB. Per the Defendant’s own Motion for SJ, it is WaterSound’s Covenants which

created the DRB.

Now, this excerpt from the trial testimony of Gary Shipman which was attached

to the Defendant’s Motion for Summary Judgment which they say definitively proves

that WaterSound and its DRB are separate and distinct entities under the law.

“A The WaterSound Homeowners association and the design

review board are distinct entities.

Q Is WaterSound Beach Homeowners Association, Inc. a for

profit corporation?

A No, it is not.

Q Is it a non profit corporation?

A Yes.

Q And is the DRB a for profit corporation?

A The DRB is a design review board that is under St. Joe

Corporation, who is the developer. It is not to my knowledge a

corporation.

Q Is the DRB an LLC?

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A An LLC is a type of corporation. I think I just said it’s not

-- to my knowledge, it’s not a corporation.

Q When you say it’s a separate and distinct entity, what do

you mean by that?

A The DRB, until St. Joe meets certain criteria under the

declaration, the DRB is basically part of the developer…”

That’s quite a compelling bit of testimony. So compelling that WaterSound rests

its entire Motion for SJ on it. I must admit that this pro se Florida citizen didn’t realize it

was that easy to gain the protection of a corporate veil simply by hiring an attorney to

make such a statement.

All that said, Trial Exhibit 25 is a letter from Gary Shipman wherein he states that

the WaterSound HOA seeks to enforce the DRB guidelines (per WaterSound’s own

MSJ). And why would the WaterSound HOA, through their attorney Gary Shipman

attempt to enforce the DRB guidelines even though Gary Shipman says St. Joe controls

the DRB? Well because it’s expedient, and in that select case it served Gary Shipman’s

agenda. After all, Gary Shipman knows that the St. Joe Company had his back at the

time. St. Joe told Carroll that the HOA controlled the DRB. Take a look at the second

page of a letter dated a week before the survey was ordered at Section Design Review

Board, Paragraph 1 per the depositions of Bridget Precise and Mary Rosenheim who is

St. Joe’s Senior Vice President (which is listed as Plaintiff’s Exhibits for Trial P3 and

P4).

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In their 1st Motion for Summary Judgment (MSJ), the Defendants tried the

opposite argument to dispute the breach of the contract. At page 18 of their 1st MSJ they

said:

“the Defendants merely undertook an investigation to determine if the

completed height of the tower on Lot 24 would exceed 50’. The

professional the Defendants retained to perform the survey initially

indicated that the completed tower would exceed the 50’ height limitation.

WaterSound then had its counsel write the Plaintiff a letter advising him

that the tower was going to exceed 50’ in height and that he needed to take

corrective action or WaterSound would seek relief in a judicial forum.”

WaterSound’s Counsel previously admitted that the Defendants hired the

surveyor and therefore breached the contract.

In stark contrast to a question of material fact, Defendant Matteson, Chief Officer

of WaterSound’s management and long time friend of Gary Shipman, Esq. testified at

deposition that the Board instructed management to obtain the survey:

“Q Do you remember this meeting here? We're calling this Exhibit 7.

I've been trying to find out since May of 2008 who ordered the survey and

why. Now, Mary Joule tells us that you asked her to get the survey.

A I did.

Q And then I asked you who told you to get the survey. I'm trying to

figure out who that was.

A I believe that what actually occurred here was as part of the manager's

report, they talked about the tower being built in Yacht Pond, that there

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was some concern at that point in time expressed by Tracy Regan that if

the construction was to continue, that the height of the tower would

exceed that on the approved plans by the DRB. Obviously, at that point in

time we had not hired a survey. We did not know whether it was –

whether it was in compliance or not.

Q Even though she said a few inches from being out?

A Well, but at the time, there was no actual -- I believe there was a site -

- there was a -- Mary had gone to the site and had actually walked up into

the building and looked at the possible height, but we didn't know whether

it was in compliance or out of compliance.”

(Plaintiff’s Exhibits for Trial P 11)

The Defendants are asking the Court to weigh evidence. The Plaintiff begs the

Court not to weigh evidence. Let the jurors decide this case. The Defendants’ Motions

for Summary Judgment must be denied.

WaterSound’s MSJ incorrectly asserts that the breach was related to 11.5 of the

Declarations of Covenants. The breach was at 10.8, et al:

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.

The next material breach we are talking about here is the notice provision. Per the

contract, if the Defendants wanted to conduct an inspection in anticipation of a claim, the

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Defendants were required to notify Carroll and his company first. Carroll and his

company then had the option to permit the inspection or deny the inspection. The

Defendants did not notify Carroll or his company that they were hiring Defendant

Voelker to conduct a survey of his building. Matteson testified:

“A We had some concerns, John, prior to the board meeting as to

whether the height was going to comply with the approved drawings, and

at that point in time, we were going on to seek that. Obviously, the board

meeting came up, the board discussed it as part of the compliance issue.

We were already in the process of going ahead and talking to somebody

about it. I don't think we had actually obtained them at that point in time.

But we had discussed the fact that we were going to go ahead and

probably get a height of the tower to make sure it complied.”

Did the Defendants give Carroll advance notice? Again Matteson:

“Q Why didn't the board or you call me and ask me about this before

you did this?

A Because we didn't -- because you need to see how we viewed it. We

viewed it as a potential problem. It wasn't a problem. We didn't know it

was a problem at the time, so we were trying to determine did we have an

issue or did we not. If you had submitted a survey, and I believe that you

did submit a survey at some point in time, we still would have wanted to

have verified it with an independent third party, which is exactly what we

did.”

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The Court file lists the witnesses. Carroll will take the testimony of the witnesses

and show the jury that Gary Shipman, Esq. has no credibility and can’t be trusted.

Wherefore, Carroll asks the Court to deny the Defendant’s Motion for Summary

Judgment.

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 Co. Hwy. 283, Suite B, Santa Rosa Beach, FL by fax and

mail this 26th day of April, 2012.

_____________________________

John P. Carroll