Coconut Plantation vs MVW litigation

[kheins]

Good evening,

Any update to what happened in court on October 23rd? My wife and I own two weeks there and are trying to stay informed on the progress of the case.

Motion to dismiss was denied.

 

[Winthelawsuit]

Good evening,

Any update to what happened in court on October 23rd? My wife and I own two weeks there and are trying to stay informed on the progress of the case.

Motion to Dismiss was denied. Lawsuit will go forward with Defendant's Answer to the Complaint due in 20 days (probably November 13).

 

[Winthelawsuit]

Motion to dismiss was denied.

Lawsuit will go forward with Answer to the Complaint due in 20 days.

 

[Winthelawsuit]

Interesting case to follow, especially to see if there are any damages.

https://matrix.leeclerk.org/Account/Login - - this address should take you to Lee County Court web site to follow the case if you get registered. Can register on this web page. Case number is 23-CA-008717, which is all you need to put in for the search if you are interested in following it.

 

[echino]

https://matrix.leeclerk.org/Account/Login - - this address should take you to Lee County Court web site to follow the case if you get registered. Can register on this web page. Case number is 23-CA-007817, which is all you need to put in for the search if you are interested in following it.

23-CA-008717

 

[ArizonaSun4Fun]

Thank you for posting the information necessary to get to the documents in the case. Unfortunately after reading the documents myself, I am not encouraged about the Owners' chances for winning this case. Fortunately the motion to dismiss the case was denied. The Association may be in it's best position right now to try to negotiate some type of settlement.
Gary, thanks for taking the time to submit the letter to the court. I think your argument about the fiduciary responsibility of the Developer carries more weight than the argument about the "unlawful" transfer of easement rights. We need to settle now, or Coconut Cove is going to be a very expensive place to vacation. (As indicated by the proposed fees for 2024 of about $2400 per week.)

 

[ArizonaSun4Fun]

(Duplicate post removed.)

 

[echino]

According to an anonymous post in the Hyatt Facebook group:


The Coconut Plantation/Cove Board today failed to adopt the 2024 operating budget due to what the board feels are improper MVW/ management company charges and conduct.

 

[Winthelawsuit]

23-CA-008717

Thanks for correcting Sorry about my error.

 

[Winthelawsuit]

Thank you for posting the information necessary to get to the documents in the case. Unfortunately after reading the documents myself, I am not encouraged about the Owners' chances for winning this case. Fortunately the motion to dismiss the case was denied. The Association may be in it's best position right now to try to negotiate some type of settlement.
Gary, thanks for taking the time to submit the letter to the court. I think your argument about the fiduciary responsibility of the Developer carries more weight than the argument about the "unlawful" transfer of easement rights. We need to settle now, or Coconut Cove is going to be a very expensive place to vacation. (As indicated by the proposed fees for 2024 of about $2400 per week.)

I also like the position regarding the timeline for when the documents were signed. I firmly believe that the Declarant conveyed the undeveloped property to Kersey Smoot BEFORE the Deletion was effective (Declaration makes it effect upon recording with Lee County). That would make Pelican Landing Timeshare Ventures remain as the Declarant with no way out because it no longer owns the property. I'll never understand why the law firm representing the Association put all of its eggs in one basket instead of three baskets since it's always better to have three shots at winning instead of one.

 

[Winthelawsuit]

I also like the position regarding the timeline for when the documents were signed. I firmly believe that the Declarant conveyed the undeveloped property to Kersey Smoot BEFORE the Deletion was effective (Declaration makes it effect upon recording with Lee County). That would make Pelican Landing Timeshare Ventures remain as the Declarant with no way out because it no longer owns the property. I'll never understand why the law firm representing the Association put all of its eggs in one basket instead of three baskets since it's always better to have three shots at winning instead of one.

I also told the Board that it has the legal right to insist that the law firm file an amended Complaint that adds claims directed to Defendants' implied fiduciary duty to pay and that the Deletion is ineffective due to when the documents were signed. I encourage all owners to contact the Board to ask why an amended Complaint is not being filed to allege the claims and insist that they do so.

 

[Winthelawsuit]

According to an anonymous post in the Hyatt Facebook group:


The Coconut Plantation/Cove Board today failed to adopt the 2024 operating budget due to what the board feels are improper MVW/ management company charges and conduct.

It will be interesting to see the next communication from the Board about the 2024 budget. We have to pay something so that bills can be paid.

 

[dioxide45]

It will be interesting to see the next communication from the Board about the 2024 budget. We have to pay something so that bills can be paid.

Yeah, it isn't like the HOA can't not set a budget. They need to approve the worst case and seek damages for what they think they are having to overpay due to the issues.

 

[wendyleighj]

https://matrix.leeclerk.org/Account/Login - - this address should take you to Lee County Court web site to follow the case if you get registered. Can register on this web page. Case number is 23-CA-007817, which is all you need to put in for the search if you are interested in following it.

Wrong case number? This is what I see displayed with that number.

23-CA-007817 : RANDALL, ELIZABETH Plaintiff vs AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA Defendant​

 

[dioxide45]

Wrong case number? This is what I see displayed with that number.

23-CA-007817 : RANDALL, ELIZABETH Plaintiff vs AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA Defendant​

See post #30.

 

[AJCts411]

You have the case numbers wrong. per #30.

 

[wendyleighj]

Here's a copy of the sales transaction, $5,422,500.00 (valued way under market). https://www.leepa.org/Display/DisplayParcel.aspx?FolioID=10620632&SalesDetails=True#SalesDetails

 

[Winthelawsuit]

Wrong case number? This is what I see displayed with that number.

23-CA-007817 : RANDALL, ELIZABETH Plaintiff vs AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA Defendant​

Should have been 23-CA-008717. Sorry for the typo error.

 

[dioxide45]

According to an anonymous post in the Hyatt Facebook group:


The Coconut Plantation/Cove Board today failed to adopt the 2024 operating budget due to what the board feels are improper MVW/ management company charges and conduct.

Do we know yet if the board passed a budget?

 

[ArizonaSun4Fun]

Do we know yet if the board passed a budget?

I received an email that the Board has twice voted down the proposed budget, and owners will be billed the same as their 2023 maintenance fee and be expected to pay that by the early January due date. The email also warned that we would likely be billed for an additional shortfall amount later in the year.

 

[Winthelawsuit]

Hope that everyone had a Happy Thanksgiving.

I have given some thought as to why I think that the Association WILL NOT win the lawsuit against Pelican Landing Timeshare Ventures and Kersey Smoot (the Defendants) without the Complaint being amended. In reading the Complaint and the Defendants' Answers, it appears to me that the word "ELMINITATES" or "ELIMINATION" of the easements is the key to the lawsuit as it is presently filed with the court. The Association says that EACH OWNER (together - the Association) has a nonexclusive drainage easement ONTO the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property. The Defendants essentially say that the "deleted property" would not "eliminate" or result in the "elimination" of the drainage easements granted to the Owners per the Master Declaration.

Article II, Section C, paragraph 2 of the Master Declaration says what Prohibited Deletions are, and the Association says that "Declarant shall not delete, without the approval of all Owners, any Master Property WHICH DELETION (emphasis added) would result in the ELEMINATON of all reasonable ingress and egress rights to a dedicated right of way granted pursuant to Article III, Section H, Paragraph 1 or the ELIMINATION of drainage or utility easement rights granted pursuant to Article III, Section H, paragraph 2."

Article III, Section H, paragraph 2 provides "nonexclusive easement for drainage ONTO (emphasis added) the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property."

With two of the buildings existing for about twenty years and two of the buildings existing for about five years, there seems to have been no problems with the easements granted to the Owners - - i.e., the right to ingress and egress, and the elimination of drainage (from rain) onto the Master Property or utility access. Put another way, does the deleted property, located a distance away from the existing buildings, REASONABLY eliminate drainage of water ONTO the Master Property or eliminate access to Utility service? I don't think so.

The Master Declaration is written so that it applies as if all of the units have been built. Therefore, the easements for buildings that would be built on the deleted property are what is inferred in the Master Declaration. Since buildings have not been built on the deleted property, there are no easements to the nonexistent Owners. So, if the goal had been to build only 96 units, there would be no issue because all of the easements are working as intended. And if the easements were not working as intended, the Declarant would "have the right to relocate and redefine the areas covered by such easements." Article III, Section I, paragraph 2.

Had the Defendant Pelican Landing Timeshare Ventures first deleted the property it wanted to sell, then recorded the deletion with Lee County, and then, say a week or a month later conveyed the property to Kersey Smoot, the transfer of the property would have been proper. But the conveyance appears to not have been proper, and the Association won't amend the Complaint for the court to decide whether the conveyance was proper. Similarly, the Association won't amend the Complaint regarding the legal "implied fiduciary duty" obligation of Pelican Landing so that it must continue to pay Shared Expenses going forward.

Unfortunately, the Association is playing games with the Master Declaration to argue that the Association needed to approve the sale of the deleted property. I believe that the Defendants knew they couldn't obtain permission for the sale and as they say, it's easier to ask for forgiveness than it is to ask for permission. In my opinion, the Association will lose the lawsuit if it goes to trial.

The court has also required that the parties engage in a mediation to see if they can amicably resolve their dispute. I believe that a competent mediator will see what is going on and push the Association to settle with minimal detriment to the defendants. I believe that the mediation will take place after the time to amend the Complaint will have passed so that the other claims cannot be added. We will see. I hope that I'm wrong, but I'll never understand why the Complaint is not being amended to increase the likelihood of success.

 

[travelhacker]

Hope that everyone had a Happy Thanksgiving.

I have given some thought as to why I think that the Association WILL NOT win the lawsuit against Pelican Landing Timeshare Ventures and Kersey Smoot (the Defendants) without the Complaint being amended. In reading the Complaint and the Defendants' Answers, it appears to me that the word "ELMINITATES" or "ELIMINATION" of the easements is the key to the lawsuit as it is presently filed with the court. The Association says that EACH OWNER (together - the Association) has a nonexclusive drainage easement ONTO the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property. The Defendants essentially say that the "deleted property" would not "eliminate" or result in the "elimination" of the drainage easements granted to the Owners per the Master Declaration.

Article II, Section C, paragraph 2 of the Master Declaration says what Prohibited Deletions are, and the Association says that "Declarant shall not delete, without the approval of all Owners, any Master Property WHICH DELETION (emphasis added) would result in the ELEMINATON of all reasonable ingress and egress rights to a dedicated right of way granted pursuant to Article III, Section H, Paragraph 1 or the ELIMINATION of drainage or utility easement rights granted pursuant to Article III, Section H, paragraph 2."

Article III, Section H, paragraph 2 provides "nonexclusive easement for drainage ONTO (emphasis added) the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property."

With two of the buildings existing for about twenty years and two of the buildings existing for about five years, there seems to have been no problems with the easements granted to the Owners - - i.e., the right to ingress and egress, and the elimination of drainage (from rain) onto the Master Property or utility access. Put another way, does the deleted property, located a distance away from the existing buildings, REASONABLY eliminate drainage of water ONTO the Master Property or eliminate access to Utility service? I don't think so.

The Master Declaration is written so that it applies as if all of the units have been built. Therefore, the easements for buildings that would be built on the deleted property are what is inferred in the Master Declaration. Since buildings have not been built on the deleted property, there are no easements to the nonexistent Owners. So, if the goal had been to build only 96 units, there would be no issue because all of the easements are working as intended. And if the easements were not working as intended, the Declarant would "have the right to relocate and redefine the areas covered by such easements." Article III, Section I, paragraph 2.

Had the Defendant Pelican Landing Timeshare Ventures first deleted the property it wanted to sell, then recorded the deletion with Lee County, and then, say a week or a month later conveyed the property to Kersey Smoot, the transfer of the property would have been proper. But the conveyance appears to not have been proper, and the Association won't amend the Complaint for the court to decide whether the conveyance was proper. Similarly, the Association won't amend the Complaint regarding the legal "implied fiduciary duty" obligation of Pelican Landing so that it must continue to pay Shared Expenses going forward.

Unfortunately, the Association is playing games with the Master Declaration to argue that the Association needed to approve the sale of the deleted property. I believe that the Defendants knew they couldn't obtain permission for the sale and as they say, it's easier to ask for forgiveness than it is to ask for permission. In my opinion, the Association will lose the lawsuit if it goes to trial.

The court has also required that the parties engage in a mediation to see if they can amicably resolve their dispute. I believe that a competent mediator will see what is going on and push the Association to settle with minimal detriment to the defendants. I believe that the mediation will take place after the time to amend the Complaint will have passed so that the other claims cannot be added. We will see. I hope that I'm wrong, but I'll never understand why the Complaint is not being amended to increase the likelihood of success.

I appreciate all of your insight -- you did a great job breaking this down.

Do you think there is anything that owners can do to influence the board with getting the complaint amended as you explained?

Thanks!

 

[Winthelawsuit]

I appreciate all of your insight -- you did a great job breaking this down.

Do you think there is anything that owners can do to influence the board with getting the complaint amended as you explained?

Thanks!

I think that the Board members have no legal experience and are deferring to trial counsel on how to proceed. I was hoping that trial counsel would discuss with me why I believe an amendment is necessary to allege the other claims, but trial counsel did not get back to me despite the Board saying I could contact them and should expect to receive a reply from trial counsel. I think trial counsel is, or should be, embarrassed by the quality of their work so they won't amend the Complaint because they did such a poor job of analyzing the relevant facts. I think that the only way to get the Complaint amended is for Owners to email Rick Rudd, president of the board, at rsrudd@aol.com and Rick Lohr, vice president of the board, at ricklohr11@gmail.com telling them that the Complaint needs to be amended to additional claims, including claims such as implied fiduciary duty and time of conveyance of the deleted property to Kersey Smoot. If the Board doesn't hear from Owners, the Board will think they are doing a good job.

 

[ChicagoDave]

It goes without saying that a strong legal team makes a huge difference in any case, but especially one like this involving a large corporation with deep pockets. Otherwise, it makes what’s already an uphill battle virtually impossibl. It makes you wonder how the law firm was chosen.

 

[dioxide45]

It goes without saying that a strong legal team makes a huge difference in any case, but especially one like this involving a large corporation with deep pockets. Otherwise, it makes what’s already an uphill battle virtually impossibl. It makes you wonder how the law firm was chosen.

Hopefully not someone's friend...