Coconut Plantation vs MVW litigation

[Winthelawsuit]

Have you seen the latest from the Coconut Cove Board of Directors regarding the litigation? Here is the relevant portion"

In an executive session, from which one board member recused herself, our legal counsel gave an update on the current litigation surrounding the land sale by MVW last year and MVW no longer contributing approximately 72% of the annual shared area expenses (over 2 million dollars in 2022). The suit is scheduled for mediation this May and failing a settlement, a trial in August. We are told that only a small percentage of this type of litigation will actually go to trial as pretrial settlement is normally reached. Our legal team is assembling a number of expert witnesses that will give testimony on the case. Naturally, the board will provide additional updates as they occur in the next few months.

The Board's trial counsel told the Board that there is a mediation for the lawsuit scheduled for May and "failing a settlement" their trial counsel told them that "only a small portion of this type of litigation will actually go to trial as pretrial settlement is normally reach."

Basically, their trial counsel is saying they will "surrender" and grab their legal fees because we were incompetent and didn't assert any claim that the the property was sold to Kersey Smoot before the "deletion" was was implemented (so no legal right to delete) and that there is an implied fiduciary obligation for PLV/MVW to continue to pay its 72% portion of "Shared Expenses." Will these issues be addressed in the mediation? Probably not - - the mediation will be limited to the Complaint. If they are addressed, the mediator will allow these issues to be addressed but in making the recommendation for settlement, these issues will be ignored because they are not in the Complaint.

And the Board appears to have no plan to ask the membership whether the members want to go to trial or settle via the mediation. I favor trial if the Complaint is amended. If they settle, they better get a lot more than the $7 million previously offered and rejected.

I still wonder why the Board hasn't created a "litigation" committee of some members who are lawyers and could make sure that a better is job is done than by the lawyers currently handling the lawsuit.

It's a sorry situation and the outcome will be that members will see at least a 25% increase in annual fees.

 

[Winthelawsuit]

Our Board is always saying that MVW sold the property, or that MVW is no longer contributing 72% annual shared expenses, etc. Did MVW "really" sell the property or contribute 70% of shared expenses. Obviously, MVW did not sell the property; Pelican Landing Timeshare Ventures ("PLV") sold the property because it owned the property. Very likely, PLV, as the Declarant, not MVW, contributed the 72% shared expenses. But if MVW was involved in the sale of the property or approved the sale of the property because the income from the sale would be reflected in its financial statements, then I think that MVW should have been added to the Complaint.

However, our trial counsel, Becker and Poliakoff ("B&P") did not name MVW as a defendant and B&P was not astute enough to find out whether MVW was involved in the sale or approved the sale of the property to Kersey Smoot so it could possibly add MVW to the Complaint. At the recent timeshare Board meeting I asked Mr. Whelihan, MVW Vice President of Resort Operations, whether MVW was involved in the business decision to sell the property and sent him an email confirming my question on March 6th:

"Good morning Mr. Whelihan. At the recent Coconut Plantation Condo Association meeting I asked you the question of whether any Marriott Vacations Worldwide employees were involved in Pelican Landing Timeshare Ventures' business decision to sell the undeveloped property to Kersey Smoot. I look forward to receiving your response."

Mr. Whelihan promptly responded on March 6th, "I just wanted to verify that I received your email and am actively working on the action item from the Board meeting. I hope to report back to you and the Board soon."

On March 21st (two weeks later) I sent a reminder email to Mr. Whelihan: "Have you made any progress in finding out whether any Marriott Vacations Worldwide employees were involved in Pelican Landing Timeshare Ventures' business decision to sell the undeveloped property to Kersey Smoot? To expedite your investigation you may want to start with Mr. Geller since he should have been involved in the business decision regarding the sale of the property. I look forward to hearing from you soon."

Will I receive a response? Why am I doing this instead of B&P lawyers? Will this be addressed in the upcoming May mediation? Will the B&P lawyers be able to question Mr. Guthrie (Defendants trial lawyer) what is meant in our Master Declaration that he prepared in 2003 since he is not on the "Expert Witness" list? Will the Wilson Miller firm, who prepared the land related documents, testify what is meant that their work is "Subject to easements and restrictions of record?" There must be some place that says what the "easements" cover - - the easements are what our Complaint is limited to.

May will be an interesting month!

 

[dioxide45]

Our Board is always saying that MVW sold the property, or that MVW is no longer contributing 72% annual shared expenses, etc. Did MVW "really" sell the property or contribute 70% of shared expenses. Obviously, MVW did not sell the property; Pelican Landing Timeshare Ventures ("PLV") sold the property because it owned the property. Very likely, PLV, as the Declarant, not MVW, contributed the 72% shared expenses. But if MVW was involved in the sale of the property or approved the sale of the property because the income from the sale would be reflected in its financial statements, then I think that MVW should have been added to the Complaint.

However, our trial counsel, Becker and Poliakoff ("B&P") did not name MVW as a defendant and B&P was not astute enough to find out whether MVW was involved in the sale or approved the sale of the property to Kersey Smoot so it could possibly add MVW to the Complaint. At the recent timeshare Board meeting I asked Mr. Whelihan, MVW Vice President of Resort Operations, whether MVW was involved in the business decision to sell the property and sent him an email confirming my question on March 6th:

"Good morning Mr. Whelihan. At the recent Coconut Plantation Condo Association meeting I asked you the question of whether any Marriott Vacations Worldwide employees were involved in Pelican Landing Timeshare Ventures' business decision to sell the undeveloped property to Kersey Smoot. I look forward to receiving your response."

Mr. Whelihan promptly responded on March 6th, "I just wanted to verify that I received your email and am actively working on the action item from the Board meeting. I hope to report back to you and the Board soon."

On March 21st (two weeks later) I sent a reminder email to Mr. Whelihan: "Have you made any progress in finding out whether any Marriott Vacations Worldwide employees were involved in Pelican Landing Timeshare Ventures' business decision to sell the undeveloped property to Kersey Smoot? To expedite your investigation you may want to start with Mr. Geller since he should have been involved in the business decision regarding the sale of the property. I look forward to hearing from you soon."

Will I receive a response? Why am I doing this instead of B&P lawyers? Will this be addressed in the upcoming May mediation? Will the B&P lawyers be able to question Mr. Guthrie (Defendants trial lawyer) what is meant in our Master Declaration that he prepared in 2003 since he is not on the "Expert Witness" list? Will the Wilson Miller firm, who prepared the land related documents, testify what is meant that their work is "Subject to easements and restrictions of record?" There must be some place that says what the "easements" cover - - the easements are what our Complaint is limited to.

May will be an interesting month!

The address of Pelican Landing Timeshare Ventures is the same as Marriott Vacations Worldwide. I was under the understanding that Pelican Landing Timeshare Ventures was a wholly owned subsidiary of Marriott Vacations Worldwide. So yes, MVW did sell the land, in a roundabout way. MVW was the ultimate decision maker.

 

[Winthelawsuit]

The address of Pelican Landing Timeshare Ventures is the same as Marriott Vacations Worldwide. I was under the understanding that Pelican Landing Timeshare Ventures was a wholly owned subsidiary of Marriott Vacations Worldwide. So yes, MVW did sell the land, in a roundabout way. MVW was the ultimate decision maker.

The law says that each company is a separate legal entity. That's why big companies are set up with so many subsidiaries and and joint ventures - - to protect the parent company from legal liability while still including the income from the sub or JV in the parent's income if it owns over 50% of the subsidiary or joint venture. So, legally Pelican Landing Timeshare Ventures is not the same as Marriott Vacations Worldwide, even if they both have the same address. Marriott Vacations Worldwide is not a Defendant in the lawsuit. If we should win the lawsuit, Marriott Vacations Worldwide has no liability to us for any part of the judgement because it is not a Defendant. Only Pelican Landing has liability (ignoring Kersey Smoot). Take a look at the Special Warranty Deed which says that only Pelican Landing Timeshare Ventures transferred the property to Kersey Smoot.

I previously told the Board (and posted here) that Marriott Vacations Worldwide is the Property Manager for us, and as provided in paragraph 7 of the Management Contract re Fiduciary Duty it is provided, “The Management Company [i.e., MVW] shall act in a fiduciary capacity with respect to the proper protection of and the accounting for the Association’s assets. In this capacity, the Management Company shall deal at arm’s length with all third parties and shall serve the Association’s interests at all times . . .” It appears to be that Marriott Vacations Worldwide did not serve the Association's interest at all times by its involvement in, and/or its approval of the sale. That would provide a basis to amend the contract to add Marriott Vacations Worldwide to the Complaint alleging that its involvement constitutes breach of the Management Contract and therefor Marriott Vacations Worldwide must pay an amount (I suggested $50 million) for the breach of contract. I think that it is essential to name Marriott Vacations Worldwide as a Defendant. Without additional allegations in the Complaint, we lose a lot of our negotiating power. Why would the Defendants settle for anything less than a few dollars when the only allegation in the Complaint concerns the easements. Wouldn't you settle for a lot more if you were facing a Complaint that alleged breach of contract and fiduciary duty by Marriott Vacations Worldwide, and implied breach of fiduciary duty by not paying 72% of shared expenses and transfer of the property before the "deletion" was implemented (so no right to delete the property from the Master Declaration) by Pelican Landing Timeshare Ventures? Don't you think that trial lawyers should know the importance of alleging everything possible in the Complaint to make sure you have a strong negotiating position? Apparently, ours don't.

 

[Winthelawsuit]

I sent the below email to our Board on April 15 - - still no answer from our Board.

"A few questions have come to my mind while reading the Board's report this morning.

1. Looking ahead to the mediation, has the Board determined what it will accept to end the current litigation in the upcoming mediation or continue to the trial stage? My issue is that the Complaint only contains the "easement" issue requiring Association approval. If the mediator limits the mediation to that issue and pushes for settlement because on the undeveloped land transferred to Kersey Smoot there are no buildings, so there are no owners on the affected property, so consequently there are no easements. Essentially, saying that the Defendants are correct and our Association is wrong. Will the Complaint be amended to include what I suggested - - implied fiduciary obligations of continued payment of $2M of PLV to the Association; and that the "Deletion" from the Master Declaration was done AFTER the land was transferred to Kerry Smoot so it is invalid on its face - - or will a low ball offer be accepted? I urge that the Board make tentative decisions of what it will do under different scenarios in the mediation. I personally think that B&P law firm will want to settle.

2. The Management Agreement must be cancelled by August of this year or it will be extended for another 10 years. Has the Board made any decisions as to whether it will cancel, renew or amend the Management Agreement? At a minimum, I urge the Board to amend the Management Agreement so that it is valid for only one year and must be extended in writing in the future for any additional one year terms. The Association needs to look out for its interests and not MVW's interests. If MVW won't accept such an amendment, I urge the Board to cancel the Management Agreement. Time is running short in case there is a need to find a new Management company.

3. I remember that there is one Association Director who is an MVW/PLV appointed director. Since MVW's subsidiary PLV had declared that our condo/timeshare is "completely built out," is there a basis that such Director must relinquish being a Director of our Association, or is there a provision stating that the MVW Director appointment can continue to be a Director?"

 

[PerryKing]

It seems that the property wasn't a big seller. Aren't there two older buildings and two newer ones? It seems that sales were very sluggish and it would take them far too long to sell 10 buildings worth of unit weeks. They deemed there was more value form selling the land in a quick cash sale vs taking years and years to sell the whole resort as timeshare.

The resort is okay, but it isn't anything special. It isn't on the beach and access to the beach isn't ideal. This probably made it a hard resort to sell to perspective buyers.

Just a side note: I think the original plans for the Hyatt Coconut Plantation originally called for building a total of 12 Buildings, and that it was reduced to 10 when the developer gave up the right to build 12 buildings to just 10 buildings in exchange for being able to build 2 of the remaining 10 buildings with 6 stories instead of 4, thus give those two buildings with 2 extra stories and thus "with Ocean Views". Does anyone else remember that change in plans as I once heard? Or was it just a rumor?

And YES !, it appears that no MVW/PLV appointed director should still be on the Board of Directors of our Coconut Plantation Master Association especially at this critical point in our history and current legal situation.

 

[wendyleighj]

I sent the below email to our Board on April 15 - - still no answer from our Board.

"A few questions have come to my mind while reading the Board's report this morning.

1. Looking ahead to the mediation, has the Board determined what it will accept to end the current litigation in the upcoming mediation or continue to the trial stage? My issue is that the Complaint only contains the "easement" issue requiring Association approval. If the mediator limits the mediation to that issue and pushes for settlement because on the undeveloped land transferred to Kersey Smoot there are no buildings, so there are no owners on the affected property, so consequently there are no easements. Essentially, saying that the Defendants are correct and our Association is wrong. Will the Complaint be amended to include what I suggested - - implied fiduciary obligations of continued payment of $2M of PLV to the Association; and that the "Deletion" from the Master Declaration was done AFTER the land was transferred to Kerry Smoot so it is invalid on its face - - or will a low ball offer be accepted? I urge that the Board make tentative decisions of what it will do under different scenarios in the mediation. I personally think that B&P law firm will want to settle.

2. The Management Agreement must be cancelled by August of this year or it will be extended for another 10 years. Has the Board made any decisions as to whether it will cancel, renew or amend the Management Agreement? At a minimum, I urge the Board to amend the Management Agreement so that it is valid for only one year and must be extended in writing in the future for any additional one year terms. The Association needs to look out for its interests and not MVW's interests. If MVW won't accept such an amendment, I urge the Board to cancel the Management Agreement. Time is running short in case there is a need to find a new Management company.

3. I remember that there is one Association Director who is an MVW/PLV appointed director. Since MVW's subsidiary PLV had declared that our condo/timeshare is "completely built out," is there a basis that such Director must relinquish being a Director of our Association, or is there a provision stating that the MVW Director appointment can continue to be a Director?"

Most of the HVC MANAGEMENT AGREEMENTS are for 3 YEAR TERMS. Where did you observe a 10-YEAR provision? Also, HPC owns a significant portion of the deeded units, approaching 30%, so they will control the vote and have director participation.

 

[wendyleighj]

Just a side note: I think the original plans for the Hyatt Coconut Plantation originally called for building a total of 12 Buildings, and that it was reduced to 10 when the developer gave up the right to build 12 buildings to just 10 buildings in exchange for being able to build 2 of the remaining 10 buildings with 6 stories instead of 4, thus give those two buildings with 2 extra stories and thus "with Ocean Views". Does anyone else remember that change in plans as I once heard? Or was it just a rumor?

And YES !, it appears that no MVW/PLV appointed director should still be on the Board of Directors of our Coconut Plantation Master Association especially at this critical point in our history and current legal situation.

Hi Perry! If that information is correct it will be in the association documents. Also, HPC owns a significant portion of the deeded units, approaching 30%, so they will control the vote and have director participation.

Do you still owe 51 & 52 at ML?

 

[PerryKing]

OK on the 30% by HPC. Thats too bad for all of us. and now too late.

 

[Winthelawsuit]

Most of the HVC MANAGEMENT AGREEMENTS are for 3 YEAR TERMS. Where did you observe a 10-YEAR provision? Also, HPC owns a significant portion of the deeded units, approaching 30%, so they will control the vote and have director participation.

Mea Culpa - it is a 3 year term. Sorry. Don't know how I came up with 10 years.
I think the MVW appointed Director is "intended" to mean only with respect to original sale of the timeshare units and not include buybacks/foreclosure units they own. If they still own the required amount of timeshare units never sold, they may still be entitled to have a director. My logic covers the intention that all of the units get sold within 20 years so MVW is not entitled to have a Director. So if all of the units have been sold and then MVW uses its "first refusal" buyback or foreclosure to obtain units previously sold they would not be entitled to appoint a Director; they would have the right to have a person run for election to become a Director just as every other owner has the right to run. But when the timeshare unit is sold they can no longer have such elected Director. Basically, MVW has to distinguish if there are any "never sold unit" and "reobtained" units by first refusal or foreclosure.

 

[bdh]

Mea Culpa - it is a 3 year term. Sorry. Don't know how I came up with 10 years.
I think the MVW appointed Director is "intended" to mean only with respect to original sale of the timeshare units and not include buybacks/foreclosure units they own. If they still own the required amount of timeshare units never sold, they may still be entitled to have a director. My logic covers the intention that all of the units get sold within 20 years so MVW is not entitled to have a Director. So if all of the units have been sold and then MVW uses its "first refusal" buyback or foreclosure to obtain units previously sold they would not be entitled to appoint a Director; they would have the right to have a person run for election to become a Director just as every other owner has the right to run. But when the timeshare unit is sold they can no longer have such elected Director. Basically, MVW has to distinguish if there are any "never sold unit" and "reobtained" units by first refusal or foreclosure.

Hyatt stopped selling weeks in 2017 - there are no longer units "for sale". Units that were not sold when they started selling points in 2017 would have been transferred to the HPP Trust. Add the recent construction of a new building with all units belonging to the HPP Trust, the percentage of HPP units is higher than 30%. Hyatt/MVW doesn't need to have units for sale to have an MWV employee on the BOD. Combine the number of units HPP owns with the low number of deeded week owner that actually vote, MVW can vote an MVW employee onto the BOD.

FWIW: Since there are no longer units "for sale", MVW's ROFR should be extinguished.

 

[Winthelawsuit]

See page 4 of attached bylaws regarding election of directors - - especially subparagraph (3) which relates to having 1 Developer director. Now that the condo has 96 units, or roughly 5000 unit weeks (ignoring the change to the point system) after the sale of the undeveloped property, how many units does the developer currently have?

 

[Hindsite]

This may be different, but if 'The Developer' is a different legal entity to the management company, that may explain the presence of MVW associated Directors.

 

[Winthelawsuit]

The Developer and the Management Company are different legal entities. Developer is Pelican Landing Timeshare Ventures and the Management Company is Hyatt Vacation Management Corporation. It seems to me that the Developer should be required to appoint a Pelican Landing Timeshare Ventures employee if the company is entitled to appoint a director. If the limitations in the bylaws are not met, it seems to me that there should be no Developer appointed directors.

 

[wendyleighj]

Mea Culpa - it is a 3 year term. Sorry. Don't know how I came up with 10 years.
I think the MVW appointed Director is "intended" to mean only with respect to original sale of the timeshare units and not include buybacks/foreclosure units they own. If they still own the required amount of timeshare units never sold, they may still be entitled to have a director. My logic covers the intention that all of the units get sold within 20 years so MVW is not entitled to have a Director. So if all of the units have been sold and then MVW uses its "first refusal" buyback or foreclosure to obtain units previously sold they would not be entitled to appoint a Director; they would have the right to have a person run for election to become a Director just as every other owner has the right to run. But when the timeshare unit is sold they can no longer have such elected Director. Basically, MVW has to distinguish if there are any "never sold unit" and "reobtained" units by first refusal or foreclosure.

CP/CC "unsold developer inventory" all went into HPC in 2017 along with the provision to include new development to be included in the Trust...which led to the newest 4th building being entirely HPC = 25%. With the additional unsold inventory the Trust controls at least 36% of the votes thus they can swing any election, especially when deeded owners fail to turn in proxies. All of this is laid out in the Association documents, which of course were drafted by the developer and take a 67% vote to change, now impossible at CP/CC. As they exercise the ROFR, their % of control continues to increase.

 

[wendyleighj]

The Developer and the Management Company are different legal entities. Developer is Pelican Landing Timeshare Ventures and the Management Company is Hyatt Vacation Management Corporation. It seems to me that the Developer should be required to appoint a Pelican Landing Timeshare Ventures employee if the company is entitled to appoint a director. If the limitations in the bylaws are not met, it seems to me that there should be no Developer appointed directors.

Actually, MVW acquired Pelican Landing Timeshare Ventures and is the management company due to succession from original HVC. The 100% control of developer/management company is what constitutes the questionable basis of the current CC lawsuit. I have a paper trail of MVW acquiring Pelican Landing Ventures which I'm happy to share.

 

[wendyleighj]

See page 4 of attached bylaws regarding election of directors - - especially subparagraph (3) which relates to having 1 Developer director. Now that the condo has 96 units, or roughly 5000 unit weeks (ignoring the change to the point system) after the sale of the undeveloped property, how many units does the developer currently have?

As of the latest (8/23) required state filing the Trust owns 1771 unit weeks at CP/CC, which obviously keep increasing.

 

[Winthelawsuit]

I sent the below email to the Board:

"I see that a deposition of a representative of our condo association is to take place tomorrow, June 21.

I encourage that whoever is deposed include what I believe to be two important statements in answering two questions posed to them: (1) that "there is a legally implied fiduciary obligation under Florida law that, as in our circumstances, when one party such as our Developer, continually pays over a long period of time, for example 20 years, and the other party, our condo association, relies on those payments, your party has an implied fiduciary obligation to continue to make those payments" and (2) "the Deletion of Property from the Master Declaration was notarized on April 21, 2023 but the property was conveyed to Kersey Smoot in the Special Warranty Deed notarized on April 20, 2023 - and I believe that means that the property was transferred to Kersey Smoot before the Deletion to the Master Declaration was made, so you can't make a deletion to property that you don't own."

I believe that Pelican Landing Timeshare Ventures is going down a path that even if there was an easement owned by the condo association that was deleted without obtaining permission, there was no damage so we are not entitled to anything. The above two proposed statements could be included in responding to (1) a question related to the "full buildout of the master property" - - i.e., that's when the implied fiduciary obligation arises because that's the basis for no longer having to pay, and (2) a question regarding easements existing prior to the removal of the Released Property - - PLV could not release easements that is no longer owned.

If you would like more detail, please refer to the emails that I have previously sent fully laying it out.

Hope this would help to get the lawsuit on track in that these statements could be used in upcoming briefs (i.e., response to summary judgment by PLV) to the court as well as in the upcoming mediation."
This is the reply that Rick Rudd provided to me:
"Good afternoon Gary, Please remove my email address from any further Coconut Plantation (Cove) correspondence as I am no longer involved in the day to day board management of the resort."

Our Condo Association is in poor shape if you have been following court filings.

 

[Winthelawsuit]

This is a summary agreed to by the parties and filed with the court as to what constitutes the lawsuit.

 

[Winthelawsuit]

My most recent communication with our Board:

"When the Special Warranty Deed was legally effective still bothers me because the date inserted by the notary (April 20th) and the "made and executed date" (April 24th - - inserted by who?). I think that the B&P lawyers need to be told that they must investigate these dates. The Deed is effective upon "delivery" to the grantee (Kersey Smoot) and that is what needs to be investigated by B&P.

Just speculation on my part, but depositions may/should shed more light on what really happened:
The Deed was prepared by Lisa Van Dien of London Bay - - see the heading at the start of the document.
Ms. Van Dien forward the Deed to PLV/Marriott Vacations for signature.
David Holton signed on behalf of PLV (but no signature date in the signature box).
However, Carol Fuggi, a notary for Marriott (I Googled her name), inserted April 20, 2023 as the date Mr. Holton appeared before her and signed.
Speculation - - The Deed was returned to Ms. Van Dien and that constituted "Constructive Delivery" or "Actual Delivery" to Kersey Smoot.
Ms. Van Dien then wanted to record the Deed, so she or someone at her direction noticed there was no "made and executed" date in the Deed.
So Ms. Van Dien had the date inserted into the Deed - - the Date was April 24, 2023, so that is how that date became part of the Deed.
On the next day the Deed was recorded.
Based on this speculation, the property was conveyed when the signed Deed was returned to Ms, Van Dien.

This may be 100% correct or it may be 100% wrong; but our lawyers must find out what actually happened.

FYI - "Constructive Notice" in Florida in an article by Florida Lawyers in Google says that "While no particular form of delivery or ceremony is necessary, any event that clearly manifests the grantor's intent to deliver is effective to convey title. Thus, it is not necessary for a physical transfer of the deed to take place if the grantor has the present intent to part with legal control of the property."

Since recording the Deed when delivered (either actually or constructively) is effective when provided to the buyer/grantee, the legal conveyance of the "Deleted Property" took place before the "Notice of Deletion" from the Master Declaration, which requires that it be recorded before becoming effective.

If nothing else, when the Deed became effective enhances our negotiating position - - if it's not raised, it's waived, and PLV doesn't have to worry about it. The same for PLV's "implied fiduciary obligation" to continue paying its 70% of Shared Expenses -- - if it's not raised, it's waived."

 

[wendyleighj]

Rick Lohr's deposition and Stephanie Butera's are uploaded to the Lee County site. Mediation is scheduled to begin WED, 7/10/2024.

 

[Winthelawsuit]

I provided the following info to the Board hoping that it will be used at the mediation tomorrow (7/12/24).

There are two issues that I believe are very important to obtaining settlement of the pending the lawsuit that I hope you will raise in the mediation scheduled for July 10, 2024, but are not raised in the Complaint. I have communicated to the Association’s Board of Directors and to the association’s trial counsel, Becker & Poliakoff, the substantive issues: (1) Is there an “implied fiduciary duty” on Defendant Pelican Landing Timeshare Ventures (“PLV”) to continue to pay its portion of Shared Expenses as it has done for the past 20+ years, and (2) Have the Notary certificates on the document exhibits in the Complaint established dates showing that the property at issue was transferred to Kersey Smoot Investments (“KSI”) prior to the execution of the other documents in the Complaint so that PLV’s Notice of Deletion is ineffective and void? An explanation regarding these issues is provided below for your consideration to ensure that timeshare owners legal rights are protected.

IMPLIED FIDUCIARY DUTY ON PLV
A Florida Bar Journal article (https://www.floridabar.org/the-florida-bar-‘sjournal/understanding-fiduciary-duty/) states that under Florida law fiduciary duty may be implied “when one party relies on another to act on the party’s behalf and to look out for its best interests. This requires proper factual allegation of dependency by the party and an undertaking by the other side to advise, counsel, protect, or benefit the dependent party.”

Mr. Troy Asche, Hyatt Vacation Ownership, Vice President, Resort Operations, sent an email to all Coconut Plantation owners saying:

“Since the opening of the resort, and in accordance with the Master Declaration, the Developer has annually paid a significant portion of the Shared Area Expenses related to its ownership of the undeveloped Land, assuming a possible maximum total build out of 339 units (the “Shared Area Contribution”) in the Condominium. In total, the Developer has paid in excess of $43 million since 2002.”

I believe that the payment by Developer, PLV, to the Association over the past 20+ years of more than $43 million, i.e., approximately $2 million each year, in itself is a factual allegation of the dependency of the Association on PLV for the benefit of the Association, which should cause the implied fiduciary duty to take effect per Florida law. Please note that only 96 units have been built and sold out of 339 units that were promised over 20 years ago (or approximately 5000 timeshare weeks out of approximately 17,500 timeshare weeks had 339 units had been built) so that PLV annually has paid at least 70% of the Shared Expenses.

Moreover, the Developer/Declarant PLV offered to pay the Association $8 million over a seven (7) year period, presumably, to obviate its fiduciary obligations to the Association, which was declined by the Association. Other factual allegations can be made to show that the Association depended upon PLV over the past 20 years.

NOTICE OF DELETION IS INEFFECTIVE AND VOID
This issue relates to the timing of the “execution” and (possibly) the “delivery” of the “Special Warranty Deed” by PLV and the “recording” the “Notice of Deletion of Property from the Master Declaration,” both acknowledged before a Notary dated “before” the execution dates set forth in the documents. In the Complaint it is stated that on April 25, 2023 PLV “recorded” the Notice of Deletion from the Master Declaration (note – that is “true”) and that on April 25, 2023 PLV “conveyed” (note – “not true”) the subject Property to KSI. Are those dates relevant, especially as to when the subject property was transferred by PLV to KSI?

Regarding the Notice of Deletion from the Master Declaration, Article II.C.1. of the Master Declaration states that “. . . Declarant may, without the consent of any Owner . . . at any time delete any portion of the Master Property owned by Declarant by executing and filing of record a Notice of Deletion from the Master Declaration . . .” (emphasis added). Consequently, the Notice of Deletion is effective when it is recorded in the records of Lee County.

With respect to the Special Deed, Defendants PLV and KSI have consistently taken the position that the subject Property was “transferred” to KSI by PLV on April 25, 2024, relying on the date of recording the sale of the Property to KSI as also being the “delivery” date of the Property from PLV to KSI - - i.e., when PLV gave up its rights in the property to KSI.

The April 25, 2023 “recording” of the sale of the subject property with Lee County is primarily for “public notice” per Florida law, but recording with the County is not required under Florida law. Recording is only necessary with respect to third party claims. I submit that the date the Special Deed was executed before the Notary is when the Property was “delivered” to by PLV to KSI, or, alternatively, the Deed was “constructively delivered” to KSI when there was a clear intent by PLV to relinquish the property to KSI - - “actual delivery of the Deed is not required for the transfer of the property of be effective. See, for example, a relevant part of a publication by Florida law professors: “While no particular form of [deed] delivery or ceremony is necessary, any event that clearly manifests the grantor's intent to deliver is effective to convey title. Thus, it is not necessary for a physical transfer of the deed to take place if the grantor has the present intent to part with legal control of the property.” (link to article below)

https://lawprofessors.typepad.com/a...ticular form of,legal control of the property.

Neither of these documents, the Notice of Deletion or the Special Deed, has a “date” set forth as to when the document was actually executed by PLV in the signature block. However, the “dates” that the Notary inserted into the by Notary acknowledgment section is a problem for PLV because all of the dates inserted by the Notary are before the “executed” dates set forth in the documents. A Notary cannot insert a date that is before the “executed” date in the document because the Notary date reflects the date the signer appeared before the Notary and the signing took place. See, for example, the link:
https://www.notarypublicstamps.com/articles/can-i-notarize-a-document-dated-in-the-future/

The Special Warranty Deed, in the first paragraph, says that it was “. . . made and executed as of the 24th day of April, 2023 . . .” [date inserted by PLV or KSI?]. The last paragraph says, “. . . the Grantor has caused these presents to be executed in manner and form sufficient to bind it as of the day and year first above written.” At a minimum, the Deed was effective on April 24, 2023 - - before the April 25, 2023 recording of the Notice of Deletion.

There is no provision for a date to be inserted in the “signature block.” The Notary states, “The foregoing instrument was acknowledged before me the 20th day of April 2023, by David Holton, . . .” The Notary appears to suggest that Mr. Holton appeared before her because certain words had a line drawn through them, but the box before saying that he “appeared before me by means of physical presence” has not been checked but the words did not have a line drawn through them. This leads to the unmistakable conclusion that the Special Warranty Deed was executed on April 20, 2023 and was effective as of that date, so that the property was transferred to Kersey Smoot on April 20, 2023 (possibly subject to constructive delivery to KSI if on a different date - - but there is no showing that there was not a present intent to part with legal control of the property upon execution of the Deed). Note that resolutions were necessary for PLV to convey the Property by Mr. Holton, which shows the intent to transfer the Property upon execution and certainly before recording.

The next relevant document is the Notice of Deletion, which in the first paragraph says, “. . . is executed this 24th day of April, 2023 . . .” [date inserted by PLV or KSI?]. The last paragraph says, “. . . the Declarant has caused these presents to be executed in manner and form sufficient to bind it this 24th day of April, 2023.” This is nearly identical to the Special Warranty Deed. The Notice of Deletion was executed by Mr. John E. Geller with no date provided under his signature in the signature block.

The Notary states, “The foregoing instrument was acknowledged before me, this 21st day of April, 2023 by John E. Geller, Jr. . . . who is personally known to me . . .” This time no boxes were checked, but it appears that Mr. Geller appeared before the Notary with the “personally known to me” space checked. However, the Notice of Deletion was effective on April 25, 2023 when it was recorded in Lee County per the Master Declaration.

It is extremely important to note that the Notice of Deletion was effective after the Special Warranty Deed transferred title to the Property to KSI on April 20, 2023 or when constructive delivery to KSI occurred which must have been before recording. Consequently, it is likely that the Declarant PLV no longer owned the property when it deleted the property from the Master Declaration.

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This opinion appears to say that the recording date be the delivery date, but the delivery date can be when there is a clear and unchanging intention to pass title to the property - - which I what I believe should be argued because if you look at the relevant documents that are in the Complaint, using this standard the deed was conveyed before the Notice of Deletion was recorded per the Master Declaration. Basically, PLV could not Delete the Property sold to Kersey because PLV no longer owned the property. Of course, the Association's trial counsel doesn't want to discuss this - - we want to relay on his "easement" argument.

Kerr v. Fernandez​

Opinion​

No. 3D01-21.
August 29, 2001.
An appeal from the Circuit Court of Monroe County, Sandra Taylor, Judge. Lower Tribunal Case No. 99-625.
Tracy J. Adams (Key West), for appellants.
Browning, Eden Sireci and Shawn D. Smith (Key West), for appellee.
Before GERSTEN and FLETCHER, J.J. and NESBITT, Senior Judge.

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FLETCHER, Judge.
Lutgarda F. Kerr and Sylvia M. O'Neal Sheppard appeal the final judgment entered against them and in favor of Dora R. Fernandez, as personal representative of the estate of J. M. Fernandez, Jr. The controlling question before us is whether J. M. Fernandez, Jr., prior to his death, completed the transfer of title to several parcels of real property by constructive delivery of deeds to the persons named therein as grantees. The litigation itself actually is limited to the transfer of title to only one of the parcels of real estate, that is the transfer to Lutgarda Kerr (his sister) and Sylvia Sheppard (his daughter). The other lots were the subject of deeds from J. M. Fernandez, Jr. to other grantees, including Anna Woodruff, Enrique Esperoy, Jr., and Dora Fernandez herself. Although these deeds were prepared the same day as, in the same fashion as, and turned over to these other grantees in the same way as, the Sheppard/Kerr deed, Dora Fernandez has not, either as estate representative or in her own interest, ever challenged the efficacy of the method of delivery of the deeds to herself or to these other grantees. After a careful review of the trial testimony, we find that the trial court reached the wrong legal conclusion on the undisputed facts, and reverse and remand for further proceedings consistent herewith.
After executing the various deeds described above, J. M. Fernandez, Jr., placed them in a closet (with other valuable papers) for safekeeping until they could be physically delivered to the various grantees, including Sylvia Sheppard when she returned to Key West after an absence therefrom. J. M. Fernandez, Jr., shortly thereafter was debilitated by a stroke and became a total invalid. He never regained his health and died before Sylvia Sheppard could return to Key West to receive physical delivery of the deed personally from him. When Sylvia Sheppard did arrive in Key West Betty DeMerritt gave her the deed. This took place two or three days after the death of J. M. Fernandez, Jr.
This closet was in the home that J. M. Fernandez, Jr. shared with Betty DeMerritt. They were not married but lived together the final fifteen years of J. M. Fernandez, Jr.'s life.
When questioned as to why she turned the deed over to Sylvia, Betty DeMerritt stated that "I knew he wanted me to do it . . . because he couldn't do it." T.12, lines 15-20. She was speaking of J. M. Fernandez, Jr.'s physical disability. Several times in her testimony she made it perfectly clear that J. M. Fernandez, Jr. wanted to deed the parcel to Sylvia Sheppard and Lutgarda Kerr and at no time intended anything else. T. 10, lines 3-8; T.11, lines 20-23; T.16, line 19;; T.17; T.18, lines 7-10.
It is to be noted from the trial testimony that all involved agree that J. M. Fernandez, Jr. never varied from his intention to deliver the deeds to all of the grantees, including the Sheppard/Kerr deed. Ultimately all the deeds were delivered by Betty DeMerritt in the same fashion (including that deed in which Dora Fernandez, the estate's representative, was named as grantee) and all the grantees accepted such delivery, with no protest from the estate, or from one another. The validity of the method of delivery was accepted by all.
There the matter lay dormant from April 1995, until May 1999, when the delivery was challenged solely as to the Sheppard/Kerr deed and only after Sylvia Sheppard and Lutgarda Kerr sought to correct an error in the deed's legal description. Dora Fernandez, for whatever motive, had the estate reopened and filed this action seeking to invalidate the Sheppard/Kerr deed (and no other) on the basis that there was no delivery of the deed by J. M. Fernandez, Jr., thus the property remained in the estate. Kerr and Sheppard defended on the basis that the undisputed facts demonstrate a constructive delivery had taken place. The trial court entered final judgment for the estate.
It is true that delivery of a deed is essential to its effectiveness. See, e.g., Sargent v. Baxter, 673 So.2d 979 (Fla. 4th DCA 1996). This does not mean, however, that a delivery, in order to be effective, must always be a physical handing over of the deed by the grantor to the grantee. For example, the grantor's recording of the deed can in some instances be equivalent to delivery. Sargent, at 980. Acts other than manual delivery (or recording), accompanied by an unchanging and clear intention to pass title can be equally efficacious in establishing delivery. For example, in Parramore v. Parramore, 371 So.2d 123 (Fla. 1st DCA 1978), the First District Court held that the words and acts of the grantor therein, during his last years, accomplished a symbolic and constructive delivery of the deed there involved.
The clearest case we believe most applicable here is Smith v. Owens, 91 Fla. 995, 1001-02, 108 So. 891, 893 (1926), wherein the supreme court stated:

"Actual manual delivery and change of possession are not always required in order to constitute an effectual delivery. The intention of the grantor is the determining factor. . . . In the well-considered case of Gulf Red Cedar Co. v. Cranshaw, 169 Ala. 606, 53 So. 812, the following propositions are announced: No formality or particular words or acts are essential to the delivery of a deed; delivery being a matter of intention, which may be manifested by acts and declarations, and may consist of a transfer of the conveyance without spoken words, or by spoken words without manual act. . . . The test of delivery of a conveyance is whether the grantor intended to reserve to himself the locus poenitentiae, and, if he did, there is no delivery; but if he parts with the control of the deed, or evinces an intention to do so, and to pass it to the grantee, though he may retain the custody or turn it over to another, or place it upon record, the delivery is complete." [e.s.]

The uncontradicted testimony is that J. M. Fernandez, Jr. evinced an intention to deliver the deed personally to Sylvia Sheppard, which intention never changed, but he fell ill and died before he could carry it out. We conclude that the facts here demonstrate an effective delivery.
Further, we conclude that the estate, by challenging the Sheppard/Kerr deed delivery, but accepting the validity of the delivery of the other deeds which were delivered in the identical fashion, is violating the maxim that precludes a party from "approbating" and "reprobating" in asserting a right in court. Several examples of the application of this maxim include Armour Co. v. Lambdin, 154 Fla. 86, 16 So.2d 805 (Fla. 1944), which holds that a party is not permitted to invoke the aid of the courts upon contradictory principles or theories based upon one and the same set of facts, such as here, where Dora Fernandez has sought the court's assistance to invalidate a deed because of the method of delivery while accepting the validity of other deeds from the same grantor delivered in precisely the same fashion. In Griley v. Griley, 43 So.2d 350 (Fla. 1949) the court cited with approval In Re Cummings' Estate, 150 Pa. 397, 25 A. 1125, which applied the maxim to a fact situation in which a party who was a devisee under a will accepted his devise, but attempted to defeat the will's operation as to property devised to other parties. The Pennsylvania court held:
This maxim applied outside of judicial proceedings is recognizable as "one may not eat his cake and yet have it." Griley v. Griley, 43 So.2d 350 (Fla. 1949).
Which the court identified as a well-settled doctrine termed in the Scotch law as the doctrine of `approbate' and `reprobate.' . . . Griley, at 352.

"The orphans' court correctly held that the appellant could not be permitted to affirm the validity of the will in Pennsylvania, and take under it, and at the same time deny its validity in Washington, to prevent other devisees from taking under it, so as to draw to himself, as heir at law, what the testator did not intend he should have, but had distinctly given to others."

Griley, at 353; Cummings' Estate, 25 A. at 1126. Dora Fernandez is violating the maxim in the same fashion, but without the involvement of a will — a mirror image of Cummings. It is seen that the Scotch doctrine is alive, well, and justly applicable here.
For the foregoing reasons, we reverse the final judgment and remand the cause to the trial court for further proceedings consistent herewith, including, but not limited to, entry of judgment for Lutgarda F. Kerr and Sylvia M. O'Neal Sheppard on the amended complaint of Dora R. Fernandez and on the counterclaim of Lutgarda F. Kerr and Sylvia M. O'Neal Sheppard as well as enforcement of the parties' stipulation as to the correct legal description.
Reversed and remanded with instructions.

 

[Winthelawsuit]

Attached is the Affidavit of Lisa Van Dien, the attorney who prepared the Special Deed.

 

[Michael Joyce]

Does anyone know if the Mediation took place on July 10th? I've been logging into Lee Courts with the case number. The last entry was a deposition on July 8th.

 

[Winthelawsuit]

Does anyone know if the Mediation took place on July 10th? I've been logging into Lee Courts with the case number. The last entry was a deposition on July 8th.

Mike - The mediation was still taking place yesterday afternoon (7/12) based on a reply I got from an email I sent to the those negotiating for the Association. It leads me to believe that there will be a settlement. I follow the court docket too and I'm just learning that there are "legacy" owners who have a deed to their units and particular weeks to go, and there are the "point" owners who I think have no ownership of a unit but have a "trust" that gives them access when a unit is available based on the points they have. I don't know much about trusts, but isn't there a "trustee" that owns the property? Who is the trustee for the points owners at Coconut Plantation? PLV or MVW? Is the "trustee" a member of the Association or are the points owners members? What do our governing documents say who are members of the Association? If, for example, PLV owns the underlying points property, are our lawyers representing who they are suing. Or are points owners excluded from any settlement that is reached? A can of worms. I'll probably wait to see what the settlement is, if there is one, before I raise these issues with the Board. Not that the points owners shouldn't share in a settlement, but if PLV is the owner for the points people, I don't like PLV sharing in the settlement.

Does anyone have information about who owns the property involved in the points system?