IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR LAKE COUNTY, FLORIDA
CASE NO.: 2002-CA-217
SWEETWATER HOLDINGS, INC.,
a Florida corporation,
Plaintiff,
vs.
SCOTT AND WENDY MCENTIRE, and CROSS
TIE RANCH OF LAKE COUNTY HOMEOWNERS’
ASSOCIATION, INC., a Florida not for profit
corporation,
Defendants.
______________________________________________/
SCOTT AND WENDY MCENTIRE, husband
and wife, individually and as class representatives
of all present and past owners in CROSS TIE
RANCH PHASE I and II,
Counter-Claimants,
vs.
SWEETWATER HOLDINGS, INC.,
a Florida corporation,
Counter-Defendants.
______________________________________________/
SCOTT AND WENDY MCENTIRE, husband
and wife, individually and as class representatives
of all present and past owners in CROSS TIE
RANCH PHASE I and II
Cross-Claimants,
vs.
CROSS TIE RANCH OF LAKE COUNTY
HOMEOWNERS’ ASSOCIATION, INC.,
formerly known as CROSS TIE RANCH AT BLACK
BEAR RESERVE HOMEOWNERS ASSOCIATION,
INC., a Florida not for profit corporation,
Cross-Defendant.
______________________________________________/
SCOTT AND WENDY MCENTIRE, husband
and wife, individually and as class representatives
of all present and past owners in CROSS TIE
RANCH PHASE I and II
Third Party Plaintiffs,
vs.
CROSS TIE RANCH HOMEOWNERS’
ASSOCIATION, INC., a Florida not for
profit corporation, CROSS TIE RANCH
HOA, INC., and RAPID RETRIEVAL,
INC., a Florida corporation,
Third Party Defendant.
______________________________________________/
DEFENDANTS MCENTIRE COUNTERCLAIM,
CROSS-CLAIM AND THIRD PARTY COMPLAINT
Defendants/Counter-Claimants, SCOTT and WENDY MCENTIRE, (hereinafter “MCENTIRE”), individually and on behalf of all past and present owners in Cross Tie Ranch Phase I and II, counterclaim against Plaintiff / Counter-Defendant, SWEETWATER HOLDINGS, INC., (hereinafter “SWEETWATER”) and cross-claim against Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., and claim against Third Party Defendants, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., CROSS TIE RANCH HOA, INC., and RAPID RETRIEVAL, INC., (hereinafter “RAPID RETRIEVAL”) and allege:
GENERAL ALLEGATIONS
1. This is a claim for declaratory judgment, damages and other relief that is within the jurisdiction of this Court exclusive of costs, interest and attorney’s fees.
2. Venue for this action lies within Lake County in that the properties that are the subject matter of this litigation are located and situated in Lake County, Florida.
3. Counter-claimants MCENTIRES are husband and wife and own the following real property located and situated in Lake County, Florida, to-wit:
Lot 44, Cross Tie Ranch Phase II, according to the Plat thereof as recorded in Plat Book 35, Pages 65 through 70, inclusive, Public Records of Lake County, Florida.
4. Counter-Defendant SWEETWATER is a Florida corporation authorized to and doing business in Florida with its principal address at 505 Wekiva Springs Road, Suite 800, Longwood, Florida 32779. Said corporation was incorporated with the State of Florida on February 20, 1998.
5. As of February 20, 1998, the first Board of Directors of Counter-Defendant SWEETWATER was J. A. Jurgens of 505 Wekiva Springs Road, Suite 800, Longwood, Florida 32779, Nick R. Shields of 380 Semoran Commerce Place, Suite A-103, Apopka, Florida 32779 and Timothy J. Talbot, 380 Semoran Commerce Place, Suite A-103, Apopka, Florida 32779 .
6. On and after February 20, 1998, but before April 12, 1999, Timothy J. Talbot was no longer an officer or director of Counter-Defendant SWEETWATER.
7. On and after April 12, 1999, but before March 13, 2000, Nick R. Shields was no longer an officer or director of Counter-Defendant SWEETWATER.
8. On or about March 13, 2002, Philip F. Keidash, Jr., of 505 Wekiva Springs Road, Longwood, Florida 32779 was an officer or director of Counter-Defendant SWEETWATER and currently is an officer or director of said corporation along with J. A. Jurgens.
9. Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., was incorporated with the State of Florida on January 28, 1994, and had as its principal place at 1009 N. 14th Street, Leesburg, Florida 34749.
10. The Articles of Incorporation of CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., provided for in its purposes that it would provide an entity to implement the Declaration of Covenants, Conditions and Restrictions and all lawful amendments thereto of the Cross Tie development.
11. On or about January 5, 1998, Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., was administratively dissolved for failure to maintain a registered agent.
12. On or about January 28, 2002, there was a purported attempt to reinstate Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., with the Florida Department of State when a Corporation Reinstatement was filed by Hank McDaniel purportedly as president of said entity.
13. The Corporation Reinstatement referred to herein listed Hank McDaniel, Dave Hoven, Randy Lusignan, Ron Harrell, Eline Ransom, Todd Jorgenson and Charles Whitfield as directors. The Florida Department of State rejected this attempt to reinstate because the name was no longer available.
14. On or about January 23, 2002, Henry McDaniel, purportedly as President of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., executed Articles of Amendment to the Articles of Incorporation of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., which purported to change the name of the corporation to Third Party Defendant, CROSS TIE RANCH HOA, INC.
15. The Articles of Amendment asserted that the members of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., were not entitled to vote on the amendments to the Articles of Incorporation because the Board of Directors had the exclusive authority to amend the same pursuant to Section 617.1422(4), Florida Statutes. Said Section provides as follows:
“617.1422 Reinstatement following administrative dissolution.--
(4) If the name of the dissolved corporation has been lawfully assumed in this state by another corporation, the Department of State shall require the dissolved corporation to amend its articles of incorporation to change its name before accepting its application for reinstatement.”
16. Notwithstanding the assertion in the Articles of Amendment the members of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., were entitled to vote on said Amendment.
17. Between January 5, 1998, and January 30, 2002, no noticed or called meeting of the membership or the board of directors for Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., was ever held.
18. Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., is a Florida corporation formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
19. Defendant / Cross-Defendant, CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., was incorporated with the State of Florida on February 16, 1999, and had its principal place of business at 505 Wekiva Springs Road, Suite 800, Longwood, Florida 32779.
20. The Articles of Incorporation of Defendant / Cross-Defendant, CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., provided in Article V, PURPOSE, as follows:
“The following are the purposes of this Corporation:
A. Non-Profit purpose. This Corporation is organized exclusively for purposes for which a corporation may be formed under the Not For Profit Corporation Laws of the State of Florida. No part of the assets, income, or profit of the corporation shall be distributable to or inure to the benefit of any member, director or officer of the Corporation.
B. General Purposes. The following are the general purposes of this Corporation:
(1) To provide an entity to implement the Declaration of Covenants, Conditions and restrictions and all lawful amendments thereto of the Cross Tie Ranch Homeowners Association, Inc., subdivision recorded in O. R. Book 1261, Page 251, Public Records of Lake County, Florida (“Restrictions”).
(2) To preserve the landscaping, drainage improvements, well and irrigation facilities, and fencing within the “Landscape Easements” defined in the Restrictions.
(3) To exercise, promote and protect the common objective, interest, and general welfare of the record Owners of real property in the Cross Tie Ranch at Black Bear Reserve Homeowners Association, Inc., subdivision.”
21. As of February 16, 1999, the first directors of Cross-defendant, CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., were J. A. Jurgens, Nick R. Shields and James Macon and said individuals were President, Vice President and Secretary-Treasurer respectively.
22. On and after February 16, 1999, but before April 12, 2000, Nick R. Shields was no longer director and Vice President of Cross-Defendant, CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
23. On and after February 16, 1999, but before April 12, 2000, Scott Price, of 505 Wekiva Springs Road, Suite 800, Longwood, Florida 32779 became a director of Cross-Defendant, CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
24. On or about December 21, 2000, an amendment to the Articles of Incorporation of Cross-Defendant, CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., was filed with the Secretary of State that purported to change the name of the corporation from CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., to CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC.
25. On or about September 21, 2001, Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., was administratively dissolved for failure to file an annual report.
26. On or about November 15, 2001, Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., was purportedly reinstated by the Secretary of State when a Corporation Reinstatement was filed. The Corporation Reinstatement listed the officers and directors of the corporation as Hank McDaniel, 55000 Nashua Boulevard, Sorrento, Florida 32776, Randy Lusignan, 36712 Nashua Boulevard, Sorrento, Florida 32776, and Ron Harrell, 34942 Nashua Boulevard, Sorrento, Florida 32776.
27. On or about February 18, 2002, Articles of Dissolution for Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., a/k/a CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., were filed with the Secretary of State that the board of directors purportedly adopted on February 6, 2002. The Articles of Dissolution stated that the members of the corporation were not entitled to vote on the issue of the dissolution because the objectives for which the corporation was organized have been fully accomplished.
28. At the time the Articles of Dissolution for Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., a/k/a CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., were filed with the Secretary of State, the objectives for which the corporation was organized had not been fully accomplished.
29. On or about October 26, 1992, Herbert Mayer, Jr., President of Sun Sound Audio, Inc., a Massachusetts corporation as General Partner, registered the Cross-Tie Limited Partnership with the Secretary of State of Florida.
30. On or about November 23, 1993, Cross-Tie Limited Partnership, a Delaware Limited partnership, as Declarant, recorded the Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1261 Page 0251, et seq., in the Public Records of Lake County, Florida. At the time the Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch was recorded there was no legal description of the property subject to the Declaration attached. A copy of the Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch is attached hereto as Exhibit “A” (hereinafter the “Original Declaration”).
31. On or about December 27, 1993, Cross-Tie Limited Partnership, a Delaware Limited partnership, as Declarant, recorded the First Amendment to the Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1267 Page 17 et seq., in the Public Records of Lake County, Florida. This First Amendment purported to describe the real property to be held, sold and conveyed subject to the Covenants, Conditions, Restrictions and Easements of Cross-Tie Ranch and included in said First Amendment the legal description of certain properties.
32. On or about October 31, 1994, Cross-Tie Limited Partnership, a Delaware Limited partnership, as Declarant, recorded the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038, et seq., in the Public Records of Lake County, Florida. A copy of the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch is attached hereto as Exhibit “B” (hereinafter the “Amended Declaration”).
33. In the Amended Declaration the Declarant stated its desire to impose a common plan of development on the real property known as “Cross Tie Ranch Phase I” (described in Exhibit A to the Amended Declaration) and “Cross Tie Ranch Phase II” (described in Exhibit B to the Amended Declaration) for the purpose of protecting the value and desirability of the properties and for the purpose of enhancing the marketability of the property.
34. In the Amended Declaration it was provided that all of the real property in Phase I and Phase II shall be held, sold and conveyed subject to the easements, conditions, covenants, and restrictions which were for the purpose of protecting the value and desirability of the properties. It was further provided that the covenants would run with the property and be binding upon all parties having any right, title or interest in the properties and their respective heirs, successors and assigns and would inure to the benefit of each owner in the properties of Cross Tie Ranch Phase I and II.
35. Pursuant to the Amended Declaration, Article I, Section 3, the “Association” was defined to mean Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., its successors and assigns.
36. Pursuant to the Amended Declaration, Article I, Section 5, the “Common Area” or “Common Areas” was defined to mean all real and personal property intended and used for the common use, enjoyment and benefit of the owners and their families, guests, tenants and invitees, which real property would ultimately be owned by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., or to be dedicated to said Association and / or the owners on any plat of the properties. The “Common Areas” owned and maintained by said Association were designated by the Declarant, Cross-Tie Ranch Limited Partnership, and included recreational facilities, drainage retention areas and facilities, pedestrian, horse and bicycle paths, tennis courts, guardhouse, mail center, common stables, landscaped entrance areas and easements.
37. Pursuant to the Amended Declaration, Article I, Section 6, the “Declarant” was defined to mean Cross Tie Limited Partnership, and where the context required, included successor developers, “if such successor developers shall acquire more than one (1) undeveloped Lot from the Declarant for the purpose of development and such successor developer is designated in a recorded assignment of development rights.” [Emphasis added.]
38. Pursuant to the Amended Declaration, Article I, Section 6, the “Turnover” was defined to mean the time when control of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., was transferred from Declarant to the owners as provided in the Amended Declaration.
39. Pursuant to Article III, Section 3, Turnover, the Declarant was required to turn over control of the Association to the other owners and the Class B Membership (defined in Article III, Section 2(b) as the Declarant) terminated upon the happening of the earlier of the following events: (1) at Declarant’s election; or (2) when the Declarant (including successor developers) in the ordinary course of business has conveyed title to ninety-five percent (95%) of th lots approved for Cross Tie Ranch in accordance with the Master Plan or PUD and which are subject to or which will be subjected to the control of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., upon platting.
40. By virtue of the fact that the Declarant, Cross Tie Ranch Limited Partnership, had filed bankruptcy, the provisions relating to turnover were rendered moot and turnover should have be deemed to have occurred upon filing of bankruptcy.
41. Pursuant to the provisions of Article IV, Section 2, the purpose of assessments levied by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., was to be used exclusively to promote the recreation, health, safety, security, and welfare of the residents of the property and for the improvement and maintenance of the “Common Area” and to provide services that said Association is authorized or required to provide.
42. Pursuant to the provisions of Article IV, Section 3, as of January 1, 1994, the maximum annual assessment was fixed at $288.00 per lot. Said Article also provided as follows:
“(a) From and after January 1, 1995, the maximum annual assessment may be increased each year by not more than ten percent (10%) above the maximum assessment for the previous year without a vote of the membership.
(b) From and after January 1, 1995, the maximum annual assessment may be increased above ten percent (10%) by a vote of a majority of each class of members who are voting in person or by proxy at a meeting duly called for this purpose.
(c) The Board of Directors may fix the annual assessment at an amount not in excess of the maximum.”
43. Pursuant to the provisions of Article IV, Section 5, of the Amended Declaration, written notice of a meeting called for the purpose of taking any action under Section 3 (referred to in the preceding paragraph) was required to be sent to all members not less than thirty (30) days nor more than sixty (60) days in advance of any such meeting including, but not limited to, meetings of the members and / or directors.
44. Since the date of filing the Amended and Restated Declaration, the amount of the annual assessment has been increased by more than ten percent (10%) from each of the previous years without a vote of the membership.
45. On or about July 12, 1996, Cross Tie Ranch Limited Partnership filed for bankruptcy in the United States Bankruptcy Court, Middle District of Florida, Orlando Division, in Case No. 96-04445-6B7, In re: Cross Tie Ranch Limited Partnership. Upon filing of the bankruptcy petition, all assets of the Estate of Cross Tie Ranch Limited Partnership, purportedly became property of the United States Trustee in Bankruptcy but in contravention to the provisions of the Amended and Restated Declaration.
46. On or about March 5, 1999, Gene T. Chambers, as Trustee and only as Trustee for the Bankruptcy Estate of Cross Tie Limited Partnership, Case No. 96-04445-6B7, pursuant to the Order Granting Motion to Sell Property of the Estate entered by the U.S. Bankruptcy Court on February 25, 1999, in consideration of the payment of $20,000.00, conveyed to Plaintiff SWEETWATER by Trustee’s Deed all right, title and interest in the following real property in Lake County, Florida, described as follows:
Tracts A, B, C, D, E, F, G, and H, Cross Tie Ranch, according to the plat thereof, as recorded in Plat Book 34, Pages 65-68, Public Records of Lake County, Florida.
and
Tract A, Cross Tie Ranch Phase II, according to the plat thereof, as recorded in Plat Book 35, Pages 65-70, Public Records of Lake County, Florida.
47. The Trustee’s Deed referred to immediately above was recorded on or about March 19, 1999, in Official Records Book 1695, Page 1425, Public Records of Lake County, Florida. A copy is attached hereto as Exhibit C.
48. On or about March 8, 1999, Herbert Mayer, Jr., as Co-Executor of the Estate of Herbert Mayer and as the “Seller” executed an “Acquisition and Assignment of Development Rights” to and in favor of SWEETWATER as the “Buyer.” A copy of the “Acquisition and Assignment of Development Rights” is attached as Exhibit D.
49. In the “Acquisition and Assignment of Development Rights,” the Seller recited that it was the owner of specific development rights such as regulatory permits, engineering drawings, marketing data, homeowners’ association documents, electronic data, storm water calculations, engineering and work product, and related development assets of the former Cross Tie Ranch project referred to as “Project Assets.”
50. In the “Acquisition and Assignment of Development Rights,” the seller, by a handwritten inter-lineation, stated that it was selling the Project Assets “ . . . to the extent seller holds, title, ownership or authority to sell and / or transfer said Project Assets.”
51. The “Acquisition and Assignment of Development Rights” specifically conveyed, without more, the following “Project Assets”:
(a) All permits from the State of Florida Game and Freshwater Fish Commission;
(b) All
permits from the St. Johns River Water
Management District;
(c) All Cross Tie Ranch homeowners Association documents including but not limited to articles, bylaws, covenants, restrictions, declarations, deed restrictions, minutes, and other homeowners’ association documents;
(d) All engineering work product prepared by Farmer, Barley & Associates or other engineering firms including all surveys, mylars, copies of electronic data, computer data, calculations, drawings and other documents;
(e) All surveys prepared by registered surveyors in the State of Florida; and
(f) All developers agreements, wastewater facilities agreements, development agreements, orders of taking, restrictive use agreements, distribution agreements, or other development related documents, as applicable, to the Cross Tie Ranch project.” [Strikethrough in the original]
52. The “Acquisition and Assignment of Development Rights” specifically provided that it was not to be recordable in the Public Records.
53. On November 14, 2000, J. A. Jurgens, on behalf of Plaintiff SWEETWATER, sent notice to the entity formerly known as Defendant/ Cross-Defendant, CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., and now known as Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., that it transferred all interest, rights and ownership of Plaintiff SWEETWATER to Henry McDaniel, as President CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., and now known as Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC. The notice also provided that no owner, officer or director of Plaintiff SWEETWATER was an owner, officer or director of Defendant / Cross-Defendant, CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC. Further, Plaintiff SWEETWATER stated that ownership of lots that it held gave it voting rights that were no different from the voting rights of other lot owners. A copy of said notice is attached hereto as Exhibit “E.”
54. On or about June 21, 2001, Herbert Mayer executed an “AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS AND EASEMENTS OF CROSS TIE RANCH RECORDED IN O.R. BOOK 1261, PAGE 251 AND AMENDMENTS THERETO OF THE PUBLIC RECORDS OF LAKE COUNTY, FLORIDA” and recorded it in Official Records Book 1974 at Page 2000 of the Public Records of Lake County. This Amendment purported to amend provisions of the Original Declaration. A copy of the Amendment is hereinafter referred to as the “Mayer Amendment” and is attached hereto as Exhibit “F.”
55. The “Mayer Amendment” referred to in Paragraph 45 purported to amend certain provisions of the Original Declaration in accordance with the provisions of Article VIII, Section 5 of the Declaration of Covenants, Conditions Restrictions and Easements of Cross Tie Ranch Recorded in Official Records Book 1261 at Page 251. Specifically, the Amendment purported to change the Corporate name in Article I, Section 3, from CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., to CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC.
56. The “Mayer Amendment” purported to amend Article I, Section 3, of the Original Declaration as follows:
“Section III- “Association” means Cross Tie Ranch of Lake County Homeowners’ Association, Inc., a corporation not for profit organized pursuant to Ch. 617, Florida Statutes, its successors and assigns.”
57. The “Mayer Amendment” also purported to Amend Article VIIII, Section 5, of the Original Declaration as follows:
“ ‘Declarant’ means the Cross Tie Ranch Limited Partnership and Sweetwater Holdings, Inc., and where the context requires or permits, shall include successor developers, if such successor developers are designated in a recordable assignment of development rights. The term ‘Declarant’ may, as the context requires, refer collectively to more than one entity or person.”
58. The “Mayer Amendment” also provided as follows:
“Except as modified herein, all terms and conditions in the Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch recorded in O.R. Book 1261, Page 251; First Amendment to Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch recorded in O.R. Book 1267, Page 17; Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch recorded in O.R. Book 1326, Page 2038; and First Amendment to Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch recorded in O.R. Book 1384, Page 568 remain as previously filed in the Public Records of Lake County and in full force and effect.”
59. Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE have retained the services of attorneys to bring this action and is obligated to pay reasonable fees for services rendered. Pursuant to §720.305, Florida Statutes, they are entitled to the award of reasonable attorneys’ fees and costs for bringing this action as well as pursuant to the provisions of the Original and Amended Declaration.
[CLASS REPRESENTATION AND CLASS REPRESENTATION ALLEGATIONS]
60. Defendants / Counter-claimants / Cross-claimants/ Third Party Claimants MCENTIRES (hereinafter 'MCENTIREs') allege that there exists a class comprising all the unit owners in Cross Tie Ranch Phase I and II, both past and present, who are so numerous that separate joinder of each member or owner, both past and present is impracticable.
61. MCENTIRES allege that the claims being brought by them as class representatives raise questions of law and fact common to the questions of law and fact raised by the claim of each member of the class.
62. MCENTIRES allege that their claims as the representatives are typical of the claim of each member of the class in that all other owners could assert the same claims as those being asserted by the Plaintiffs for the illegal and improper actions of the Defendants herein.
63. MCENTIRES assert that they can fairly and adequately protect and represent the interest of each member of the class, to-wit all other past and present owners of lots in Cross Tie Ranch Phase I and II.
64. MCENTIRES assert that the prosecution of separate claims by individual members would create a risk of inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the adverse parties herein.
65. In the alternative, MCENTIRES assert that the prosecution of separate claims by individual members would create a risk that adjudications concerning individual members of the class which would, as a practical matter, not be dispositive of the interests of other members of the class who are not parties to the adjudications or would substantially impair or impede the ability of other members of the class who are not parties to the adjudications to protect their interests.
66. In the alternative, MCENTIRES assert that the claims present questions of law or fact common to the claims of the MCENTIRES and the claims of each member of the class predominate over any question of law or fact affecting only individual members and class representation is superior to other available methods for the fair and efficient adjudication of the controversy.
67. MCENTIRES assert that the claims presented fall within the scope of Fla.R.Civ.P. 1.220(b)(1) or, in the alternative, Fla.R.Civ.P. 1.220(b)(3).
68. The questions of law and fact that are common to the claims of the MCENTIRES, as the representatives, and the claims of each member of the class are that all members of the class have been damaged by the actions of the adverse parties herein. Each unit owner, as a member of the class, has been materially damaged by the breach of fiduciary duty by the adverse parties as more fully alleged herein. Each owner, as a member of the class, has a common interest in seeking to have the provisions of Chapter 720 and the Declaration enforced against the adverse parties herein.
69. The particular facts and circumstances that show that the claims advanced by the Plaintiffs MCENTIRE, as the representative party, are typical of the claims of each member of the class are that each owner has been damaged by the actions of the adverse parties herein in as to operation and management of the common areas and the various Associations and the collection and use of assessments.
70. The approximate number of the class members is unknown but comprises present owners and future owners who may become part of the Cross Tie Ranch Phase I and II development as well as all other past owners who have previously conveyed their right, title and interest to the present owners.
71. The alleged class is defined as all past and present unit owners in Cross Tie Ranch Phase I and II.
COUNT I
[DECLARATORY JUDGMENT]
72. Paragraphs 1 through 71 are re-alleged and incorporated by reference.
73. This is a claim for declaratory judgment brought by Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE, individually and as class representatives of all past and present owners in Cross Tie Ranch Phase I and II against Plaintiff / Counter-Defendant, SWEETWATER HOLDINGS, INC., Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., and Third Party Defendants, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., and RAPID RETRIEVAL, INC.
74. Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE are in doubt about their rights, status or other legal or equitable relations under the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida, previously referred to as the Amended Declaration and as attached hereto as Exhibit “B,” and further are in doubt as to their immunities, powers, privileges or rights under the Amended Declaration.
75. Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE are also in doubt about their rights, status or other legal or equitable relations under the “AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS AND EASEMENTS OF CROSS TIE RANCH RECORDED IN O.R. BOOK 1261, PAGE 251 AND AMENDMENTS THERETO OF THE PUBLIC RECORDS OF LAKE COUNTY, FLORIDA” as recorded in Official Records Book 1974 at Page 2000 of the Public Records of Lake County, as to whether this “Mayer Amendment” purported to amend provisions of the Original Declaration.
76. Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE seek a determination of a question or questions of construction or validity of the Amended Declaration and as to various pertinent parts of the Amended Declaration.
77. Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE seek a determination of a question or questions of construction or validity of the “AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS AND EASEMENTS OF CROSS TIE RANCH RECORDED IN O.R. BOOK 1261, PAGE 251 AND AMENDMENTS THERETO OF THE PUBLIC RECORDS OF LAKE COUNTY, FLORIDA” as recorded in Official Records Book 1974 at Page 2000 of the Public Records of Lake County, as to whether this “Mayer Amendment” was effective to amend provisions of the Original Declaration.
78. Defendants / Counter Claimants / Cross Claimants / third-party Plaintiffs MCENTIRE seek to obtain a declaration of its rights, status or other legal or equitable relations under the terms of the Amended Declaration and the “Mayer Amendment.”
79. There is currently a bona fide, actual, present and practical dispute between the parties concerning the validity, effect and operation of the Amended Declaration and the “Mayer Amendment.”
80. As more alleged herein, there is an ascertained or ascertainable state of facts or a present controversy between the parties as to the Amended Declaration and the “Mayer Amendment.”
81. The immunities, powers, privileges or rights of Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE are dependent on those facts or law applicable to the facts alleged herein.
82. Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE and Plaintiff / Counter Defendant SWEETWATER, Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., and Third Party Defendants, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., and RAPID RETRIEVAL, INC. have actual, present, adverse and antagonistic interests in the subject matter, either in fact or law, and such antagonistic and adverse interests are all before the Court by proper process.
83. The relief being sought herein is not merely to seek legal advice by the courts but to resolve the declaration of rights, status or other legal or equitable relations of the parties under the terms of the Amended Declaration and the “Mayer Amendment.”
84. Specifically, Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE seek a declaratory judgment or determination in the following regards:
A. Whether on or about October 31, 1994, when Cross-Tie Limited Partnership, a Delaware Limited partnership, as Declarant, recorded the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida, whether the following real property was subject to the Covenants, Conditions, Restrictions and Easements of Cross-Tie Ranch and described as follows:
Tracts A, B, C, D, E, F, G, and H, Cross Tie Ranch, according to the plat thereof, as recorded in Plat Book 34, Pages 65-68, Public Records of Lake County, Florida.
and
Tract A, Cross Tie Ranch Phase II, according to the plat thereof, as recorded in Plat Book 35, Pages 65-70, Public Records of Lake County, Florida.
B. Whether the assets of the estate of Cross Tie Ranch Limited Partnership in the United States Bankruptcy Court, Middle District of Florida, Orlando Division, in Case No. 96-04445-6B7, In re: Cross Tie Ranch Limited Partnership, included all right, title and interest in the following real property in Lake County, Florida, described as follows:
Tracts A, B, C, D, E, F, G, and H, Cross Tie Ranch, according to the plat thereof, as recorded in Plat Book 34, Pages 65-68, Public Records of Lake County, Florida.
and
Tract A, Cross Tie Ranch Phase II, according to the plat thereof, as recorded in Plat Book 35, Pages 65-70, Public Records of Lake County, Florida.
C. Whether, as a result of the bankruptcy of Cross Tie Ranch Limited Partnership, all assets of the estate of Cross Tie Ranch Limited Partnership became property of the United States Trustee in Bankruptcy.
D. Whether the real property described herein below is subject to the Original Declaration or Amended Declaration with the property located in Lake County, Florida, described as follows:
Tracts A, B, C, D, E, F, G, and H, Cross Tie Ranch, according to the plat thereof, as recorded in Plat Book 34, Pages 65-68, Public Records of Lake County, Florida.
and
Tract A, Cross Tie Ranch Phase II, according to the plat thereof, as recorded in Plat Book 35, Pages 65-70, Public Records of Lake County, Florida.
E. Whether the “Common Areas” owned and maintained by the “Associations” as designated by the Declarant, Cross-Tie Ranch Limited Partnership, included the recreational facilities, drainage retention areas and facilities, pedestrian, horse and bicycle paths, tennis courts, guardhouse, mail center, common stables, landscaped entrance areas and easements.
F. Whether the “Mayer Amendment,” dated June 21, 2001, and recorded in O.R. Book 1974, Page 2000 of the Public Records of Lake County was effective to amend the Original Declaration because the Original Declaration had been superceded and amended by the Amended Declaration.
G. Whether the “Mayer Amendment,” dated June 21, 2001, and recorded in O.R. Book 1974, Page 2000 of the Public records was effective to amend the Original Declaration or Amended Declaration because Herbert Mayer was no longer the “Declarant” by virtue of the fact that Cross Tie Ranch Limited Partnership had filed for bankruptcy in the United States Bankruptcy Court, Middle District of Florida, Orlando Division, in Case No. 96-04445-6B7, In re: Cross Tie Ranch Limited Partnership.
H. Whether the “AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS AND EASEMENTS OF CROSS TIE RANCH RECORDED IN O.R. BOOK 1261, PAGE 251 AND AMENDMENTS THERETO OF THE PUBLIC RECORDS OF LAKE COUNTY, FLORIDA” as recorded in Official Records Book 1974 at Page 2000 of the Public Records of Lake County was effective to amend either the Original Declaration or the Amended Declaration.
I. Whether Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., is the proper entity to implement the Declaration of Covenants, Conditions and Restrictions and all lawful amendments thereto of the Cross Tie Ranch Homeowners Association, Inc., subdivision recorded in O. R. Book 1261, Page 251, Public Records of Lake County, Florida (“Restrictions”).
J. Whether Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., is the proper entity to implement the Declaration of Covenants, Conditions and Restrictions and all lawful amendments thereto of the Cross Tie Ranch Homeowners Association, Inc., subdivision recorded in O. R. Book 1261, Page 251, Public Records of Lake County, Florida (“Restrictions”).
K. Whether Third Party Defendant, CROSS TIE RANCH HOA, INC., is the proper entity to implement the Declaration of Covenants, Conditions and Restrictions and all lawful amendments thereto of the Cross Tie Ranch Homeowners Association, Inc., subdivision recorded in O. R. Book 1261, Page 251, Public Records of Lake County, Florida (“Restrictions”).
L. Whether the Articles of Dissolution for Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., a/k/a CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., were properly adopted in that the members of the corporation were entitled to vote on the issue of the dissolution.
M. Whether the Articles of Dissolution for Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., a/k/a CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., were properly adopted because the objectives for which the corporation was organized were not fully accomplished.
N. Whether Plaintiff / Counter-Defendant, SWEETWATER HOLDINGS, is not a “Declarant” as a successor developer since it did not acquire more than one (1) undeveloped lot from the original Declarant, Cross Tie Ranch Limited Partnership, for the purpose of development and it was not designated as such in a recorded assignment of development rights.
O. Whether the entities that have purported to act as the “Association” have complied with the provisions of the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida, by doing all acts necessary for the purpose of protecting the value and desirability of the properties and for the purpose of enhancing the marketability of the property.
P. Whether the entities that have purported to act as the “Association” have complied with the provisions of the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida, by doing all acts necessary, including, but not limited to, asserting rights to the “Common Areas” in the United States Bankruptcy Court, Middle District of Florida, Orlando Division, in Case No. 96-04445-6B7, In re: Cross Tie Ranch Limited Partnership.
Q. Whether all of the real property in Phase I and Phase II were held, sold and conveyed subject to the easements, conditions, covenants, and restrictions as contained in the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida.
R. Whether the easements, conditions, covenants, and restrictions as contained in the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida, run with the property and are binding upon all parties having any right, title or interest in the properties and their respective heirs, successors and assigns.
S. Whether the easements, conditions, covenants, and restrictions as contained in the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida, inure to the benefit of each owner in the properties.
T. Whether the individuals who filed the reinstatement for Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, Inc., had the authority to take such action.
U. Whether by virtue of the fact that the Declarant, Cross Tie Ranch Limited Partnership, had filed bankruptcy, the provisions relating to turnover were rendered moot and turnover should have been deemed to have occurred upon filing.
V. Whether the annual assessments collected by the “Associations” have been collected illegally and improperly in contravention of the provisions of the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida.
W. Whether any of the “Associations” referred to herein had any authority to file liens on any lots within Cross Tie Ranch Phase I and II.
X. Whether the members of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., were entitled to vote on the Amendment to the Articles of Incorporation which changed the name to CROSS TIE RANCH HOA, INC.
Y. Whether any irrigation easement on the MCENTIRE lot includes the use of the well.
Z. Whether any irrigation easement on the MCENTIRE lot includes the use of electricity for any well.
AA. Whether the MCENTIRES own the well on their lot.
WHEREFORE, Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE Defendant/Counter-claimant, individually and as class representatives of all past and present owners in Cross Tie Ranch Phase I and II, seek a declaratory judgment as more specifically alleged above against Plaintiff / Counter-Defendant, SWEETWATER HOLDINGS, INC., Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., and Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., CROSS TIE RANCH HOA, INC., and RAPID RETRIEVAL, INC., as well as an award of attorneys' fees and costs.
COUNT II
[BREACH OF FIDUCIARY DUTY AS TO CROSS TIE RANCH HOA]
85. Paragraphs 1 through 71are re-alleged and incorporated by reference herein.
86. This is a claim for breach of fiduciary duty against Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC.
87. At all times the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., were under a duty to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of the corporation and all owners in Cross Tie Ranch Phase I and II.
88. At all times material hereto the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., owed a fiduciary duty to MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of all owners in Cross Tie Ranch Phase I and II. The duty owed arises out of the provisions of the Amended Declaration alleged above as well as pursuant to the provisions of Chapter 720, Florida Statutes, as well as the common law.
89. Specifically, Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., owed a fiduciary duty to all owners within the development known as Cross Tie Ranch, Phase I and II, to implement the provisions of the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida.
90. At all times material hereto the Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., owed a fiduciary duty to MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, to discharge its duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner it reasonably believed to be in the best interests of all owners in Cross Tie Ranch Phase I and II.
91. At all times material hereto the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., breached their duty as directors in that they did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by one or more officers or employees of the corporation whom the directors reasonably believed to be reliable and competent in the matters presented.
92. Alternatively, the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., breached their duty as directors in that they did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by legal counsel, public accountants, or other persons as to matters the directors reasonably believed were within the persons' professional or expert competence.
93. Alternatively, the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., breached their fiduciary duty by not seeking the advice of legal counsel, public accountants, or other persons as to matters the directors reasonably should have believed were within the persons' professional or expert competence as to the matters alleged herein.
94. At all times material hereto Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., breached its duty in that it did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by one or more officers or employees of the corporation whom the directors reasonably believed to be reliable and competent in the matters presented.
95. Alternatively, Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., breached its duty in that it did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by legal counsel, public accountants, or other persons as to matters it reasonably believed were within the persons' professional or expert competence.
96. Alternatively, Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., breached its fiduciary duty by not seeking the advice of legal counsel, public accountants, or other persons as to matters it reasonably should have believed were within the persons' professional or expert competence as to the matters alleged herein.
97. Specifically, Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., breached that fiduciary duty by failing to require the Declarant, Cross-Tie Limited Partnership, a Delaware Limited partnership, to convey the properties subject to the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch to the Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC.
98. Specifically, Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., breached its fiduciary duty to the MCENTIRE individually and in their representative capacity as follows
A. The common areas have not been held as property subject to the Amended Declaration.
B. There have been improper expenditures not authorized by the governing documents.
C. There has been a commingling of funds in contravention of the governing documents.
D. Alternatively, there have been expenditures for repairs that are not the responsibility of the Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC.
E. There has been a misuse of funds for improper and illegal purposes.
F. There have been violations of the governing documents, including the rules and regulations.
G. There have been alterations of the common elements without authority by allowing fences to be built on the common areas which have excluded owners of Cross Tie Ranch Phase I and II.
M. There has been an expenditure of funds for insurance premiums that were not authorized or provided for by the governing documents or to insure property that is no longer the property of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., or property of all owners in Cross Tie Ranch Phase I and II.
99. At all times material hereto the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., had knowledge of the matters alleged above yet they failed to take the necessary steps to correct the same or they ignored them or they ignored the advice of persons upon whom they should have relied including, but not limited to, legal counsel, certified public accountants, licensed community association managers and others.
100. In the alternative, at all times material hereto the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., should have had knowledge of the matters alleged above yet they failed to take the necessary steps to correct the same or they ignored them or they ignored the advice of persons upon whom they should have relied including, but not limited to, legal counsel, certified public accountants, licensed community association managers and others.
101. As a result of the breach of fiduciary duty by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II have lost their nonexclusive right of easement to the common areas and the value of their lots have been diminished thereby.
102. As a result of the breach of fiduciary duty by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II have been required to pay assessments which they should not have been required to pay or they have paid assessments in an amount greater than they should have been required to pay for the operation and maintenance of the common areas for the common areas which are no longer owned by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC.
103. As a result of the breach of fiduciary duty by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, have been damaged in that the value of their lots have been damaged in that the value of the lots has been impaired or the breach of fiduciary duty has impaired or diminished the value of the entire development.
104. Pursuant to the provisions of the Amended Declaration, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II are entitled to recover, in addition to costs and disbursements allowed by law, such sums as the Court may adjudge to be reasonable for the services of the undersigned as their attorney.
105. Pursuant to the provisions of Chapter 720, Florida Statutes, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II are entitled to recover, in addition to costs and disbursements allowed by law, such sums as the Court may adjudge to be reasonable for the services of the undersigned as their attorney.
WHEREFORE, Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE Defendant/Counter-claimant, individually and as class representatives of all past and present owners in Cross Tie Ranch Phase I and II, demand judgment against and Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., as well as an award of attorneys' fees and costs.
COUNT III
[BREACH OF FIDUCIARY DUTY AS TO
CROSS TIE LAKE COUNTY / BLACK BEAR]
106. Paragraphs 1 through 71 are re-alleged and incorporated by reference herein.
107. In the alternative and in the event that it is determined that the property entity to implement and govern the provisions of the Amended Declaration is Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., then this is a claim for breach of fiduciary duty against Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
108. At all times the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., were under a duty to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of the corporation and all owners in Cross Tie Ranch Phase I and II.
109. At all times material hereto the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., owed a fiduciary duty to Plaintiffs, MCENTIRE, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of all owners in Cross Tie Ranch Phase I and II. The duty owed arises out of the provisions of the Amended Declaration alleged above as well as pursuant to the provisions of Chapter 720, Florida Statutes, as well as the common law.
110. Specifically, Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., owed a fiduciary duty to all owners within the development known as Cross Tie Ranch, Phase I and II, to implement the provisions of the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida.
111. At all times material hereto the Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., owed a fiduciary duty to MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, to discharge its duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner it reasonably believed to be in the best interests of all owners in Cross Tie Ranch Phase I and II.
112. At all times material hereto the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., breached their duty as directors in that they did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by one or more officers or employees of the corporation whom the directors reasonably believed to be reliable and competent in the matters presented.
113. Alternatively, the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., breached their duty as directors in that they did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by legal counsel, public accountants, or other persons as to matters the directors reasonably believed were within the persons' professional or expert competence.
114. Alternatively, the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., breached their fiduciary duty by not seeking the advice of legal counsel, public accountants, or other persons as to matters the directors reasonably should have believed were within the persons' professional or expert competence as to the matters alleged herein.
115. At all times material hereto Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., breached its duty in that it did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by one or more officers or employees of the corporation whom the directors reasonably believed to be reliable and competent in the matters presented.
116. Alternatively, Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., breached its duty in that it did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by legal counsel, public accountants, or other persons as to matters it reasonably believed were within the persons' professional or expert competence.
117. Alternatively, Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., breached its fiduciary duty by not seeking the advice of legal counsel, public accountants, or other persons as to matters it reasonably should have believed were within the persons' professional or expert competence as to the matters alleged herein.
118. Specifically, Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., breached that fiduciary duty by failing to require the Declarant, Cross-Tie Limited Partnership, a Delaware Limited partnership, to convey the properties subject to the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch to the Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC.
119. Specifically, Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., breached its fiduciary duty to the Plaintiffs and in their representative capacity as follows
A. Allowing the loss of ownership of the common areas to parties who are not subject to the Amended Declaration.
B. There have been improper expenditures not authorized by the governing documents.
C. There has been a commingling of funds in contravention of the governing documents.
D. Alternatively, there have been expenditures for repairs that are not the responsibility of the Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
E. There has been a misuse of funds for improper and illegal purposes.
F. There have been violations of the governing documents, including the rules and regulations.
G. There have been alterations of the common elements without authority by allowing fences to be built on the common areas that have excluded owners of Cross Tie Ranch Phase I and II.
M. There has been an expenditure of funds for insurance premiums that were not authorized or provided for by the governing documents or to insure property that is no longer the property of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., or property of all owners in Cross Tie Ranch Phase I and II.
120. At all times material hereto the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., had knowledge of the matters alleged above yet they failed to take the necessary steps to correct the same or they ignored them or they ignored the advice of persons upon whom they should have relied including, but not limited to, legal counsel, certified public accountants, licensed community association managers and others.
121. In the alternative, at all times material hereto the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., had knowledge of the matters alleged above yet they failed to take the necessary steps to correct the same or they ignored them or they ignored the advice of persons upon whom they should have relied including, but not limited to, legal counsel, certified public accountants, licensed community association managers and others.
122. As a result of the breach of fiduciary duty by Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II have lost their nonexclusive right of easement to the common areas and the value of their lots have been diminished thereby.
123. As a result of the breach of fiduciary duty by Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II have been required to pay assessments which they should not have been required to pay or they have paid assessments in an amount greater than they should have been required to pay the operation and maintenance of the common areas for the common areas which are no longer owned by Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.,
124. As a result of the breach of fiduciary duty by Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, have been damaged in that the value of their lots have been impaired or the breach of fiduciary duty has impaired or diminished the value of the entire development.
125. Pursuant to the provisions of the Amended Declaration, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II are entitled to recover, in addition to costs and disbursements allowed by law, such sums as the Court may adjudge to be reasonable for the services of the undersigned as their attorney.
126. Pursuant to the provisions of Chapter 720, Florida Statutes, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II is entitled to recover, in addition to costs and disbursements allowed by law, such sums as the Court may adjudge to be reasonable for the services of the undersigned as their attorney.
WHEREFORE, Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE Defendant/Counter-claimant, individually and as class representatives of all past and present owners in Cross Tie Ranch Phase I and II, demand judgment against and Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
COUNT IV
[BREACH OF CONTRACT /STATUTE AS TO
CROSS TIE RANCH HOMEOWNERS ASSOCIATION]
127. Paragraphs 1 through 71 are er-alleged and incorporated by reference.
128. Each of the members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., as well as the Association itself are subject to the provisions of Chapter 720, including, but not limited to, Section 720.305, which provides for the remedies at law or in equity of the members. That statute provides in pertinent part as follows:
(1) Each member and the member's tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against:
(a) The association;
(b) A member;
(c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and
(d) Any tenants, guests, or invitees occupying a parcel or using the common areas.
The prevailing party in any such litigation is entitled to recover reasonable attorneys’ fees and costs. This section does not deprive any person of any other available right or remedy.
129. Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., pursuant to the provisions of Section 720.305, Florida Statutes, is governed by, and must comply with, Chapter 720, the governing documents of the community its rules.
130. Pursuant to the provisions of Section 720.305, Florida Statutes, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, can bring an action at law or in equity, or both, to redress failure or refusal to comply with the provisions of this cited section. The action being brought herein is both an action at law and in equity.
131. All of the actions alleged herein by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., which failed to comply with the provisions of Chapter 720 and the governing documents were done wilfully and knowingly.
132. At all times the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., were under a statutory obligation to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of the corporation and more particularly to comply with the provisions of the governing documents.
133. At all times material hereto the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., owed a duty to MCENTIRES, individually and as class representatives of all past and present members of Cross Tie Ranches, to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of all past and present members of Cross Tie Ranch Phase I and II and more particularly to comply with the provisions of the governing documents. The duty owed arises out of the provisions of the Declaration alleged above as well as pursuant to the provisions of Chapter 720, Florida Statutes, as well as the common law.
134. At all times material hereto the members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., as well as the Association, breached their duty as directors in that they did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by one or more officers or employees of the corporation whom the directors reasonably believed to be reliable and competent in the matters presented.
135. Alternatively, the members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., as well as the Association, breached their duty by not seeking the advice of legal counsel, public accountants, or other persons as to matters the directors reasonably should have believed were within the persons' professional or expert competence as to the matters alleged herein.
136. Specifically, the members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., breached the duty owed in the following respects:
A. By failing to require the Declarant, Cross-Tie Limited Partnership, a Delaware Limited partnership, to convey the properties subject to the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch to the Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC.
B. The common areas have not been held as property subject to the Amended Declaration.
C. There have been improper expenditures not authorized by the governing documents.
D. There has been a commingling of funds in contravention of the governing documents.
E. Alternatively, there have been expenditures for repairs that are not the responsibility of the Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC Association.
F. There has been a misuse of funds for improper and illegal purposes.
G. There have been violations of the governing documents, including the rules and regulations.
H. There have been alterations of the common elements without authority by allowing a fence to be built on the common areas which have excluded owners of Cross Tie Ranch Phase I and II.
I. There has been an expenditure of funds for insurance premiums that were not authorized or provided for by the governing documents or to insure property that is no longer the property of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., or property of all owners in Cross Tie Ranch Phase I and II.
137. At all times material hereto the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., had knowledge of the matters alleged above yet they failed to take the necessary steps to correct the same or they ignored them or they ignored the advice of persons upon whom they should have relied including, but not limited to, legal counsel, certified public accountants, licensed community association managers and others.
138. In the alternative, At all times material hereto the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., had knowledge of the matters alleged above yet they failed to take the necessary steps to correct the same or they ignored them or they ignored the advice of persons upon whom they should have relied including, but not limited to, legal counsel, certified public accountants, licensed community association managers and others.
139. As a result of the breach of statutory duty by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II have lost their non-exclusive right of easement to the common areas and the value of their lots have been diminished thereby.
140. As a result of the breach of statutory duty by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II have been required to pay assessments which they should not have been required to pay or they have paid assessments in an amount greater than they should have been required to pay for the operation and maintenance of the common areas for the common areas which are no longer owned by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC.
141. As a result of the breach of statutory duty by Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II, Plaintiffs MCENTIRE, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, have been damaged in that the value of their lots have been damaged in that the value of the lots have been impaired or the value of the entire development has been impaired or diminished by the breach of statutory duty.
142. Pursuant to the provisions of the Amended Declaration and Chapter 720, Plaintiffs MCENTIRE, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II are entitled to recover, in addition to costs and disbursements allowed by law, such sums as the Court may adjudge to be reasonable for the services of the undersigned as his attorney.
143. Pursuant to the provisions of Chapter 720, Florida Statutes, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II is entitled to recover, in addition to costs and disbursements allowed by law, such sums as the Court may adjudge to be reasonable for the services of the undersigned as his attorney.
WHEREFORE, Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE Defendant/Counter-claimant, individually and as class representatives of all past and present owners in Cross Tie Ranch Phase I and II, demand judgment against and Third Party Defendant, CROSS TIE RANCH HOMEOWNERS’ ASSOCIATION, INC., as well as an award of attorneys' fees and costs.
COUNT V
[BREACH OF CONTRACT/STATUTE AS TO
CROSS TIE RANCH LAKE COUNTY / BLACK BEAR]
144. Paragraphs 1 through 71 are er-alleged and incorporated by reference.
145. In the alternative and in the event that it is determined that the property entity to implement and govern the provisions of the Amended Declaration is Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., then this is a claim for breach of statutory and contractual duty against Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
146. Each of the members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., as well as the Association itself are subject to the provisions of Chapter 720, including, but not limited to, Section 720.305, which provides for the remedies at law or in equity of the members. That statute provides in pertinent part as follows:
(1) Each member and the member's tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against:
(a) The association;
(b) A member;
(c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and
(d) Any tenants, guests, or invitees occupying a parcel or using the common areas.
The prevailing party in any such litigation is entitled to recover reasonable attorneys’ fees and costs. This section does not deprive any person of any other available right or remedy.
147. Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., pursuant to the provisions of Section 720.305, Florida Statutes, is governed by, and must comply with, Chapter 720, the governing documents of the community its rules.
148. Pursuant to the provisions of Section 720.305, Florida Statutes, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, can bring an action at law or in equity, or both, to redress failure or refusal to comply with the provisions of this cited section. The action being brought herein is both an action at law and in equity.
149. All of the actions alleged herein by Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., which failed to comply with the provisions of Chapter 720 and the governing documents were done wilfully and knowingly.
150. At all times the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., were under a statutory obligation to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of the corporation and more particularly to comply with the provisions of the governing documents.
151. At all times material hereto the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., owed a duty to MCENTIRES, individually and as class representatives of all past and present members of Cross Tie Ranches, to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of all past and present members of Cross Tie Ranch Phase I and II and more particularly to comply with the provisions of the governing documents. The duty owed arises out of the provisions of the Declaration alleged above as well as pursuant to the provisions of Chapter 720, Florida Statutes, as well as the common law.
152. At all times material hereto the members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., as well as the Association, breached their duty as directors in that they did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by one or more officers or employees of the corporation whom the directors reasonably believed to be reliable and competent in the matters presented.
153. Alternatively, the members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., as well as the Association, breached their duty by not seeking the advice of legal counsel, public accountants, or other persons as to matters the directors reasonably should have believed were within the persons' professional or expert competence as to the matters alleged herein.
154. Specifically, the members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., breached the duty owed in the following respects:
A. By failing to require the Declarant, Cross-Tie Limited Partnership, a Delaware Limited partnership, to convey the properties subject to the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch to the Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
B. The common areas have not been held as property subject to the Amended Declaration.
C. There have been improper expenditures not authorized by the governing documents.
D. There has been a commingling of funds in contravention of the governing documents.
E. Alternatively, there have been expenditures for repairs that are not the responsibility of the Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
F. There has been a misuse of funds for improper and illegal purposes.
G. There have been violations of the governing documents, including the rules and regulations.
H. There have been alterations of the common elements without authority by allowing a fence to be built on the common areas which have excluded owners of Cross Tie Ranch Phase I and II.
I. There has been an expenditure of funds for insurance premiums that were not authorized or provided for by the governing documents or to insure property that is no longer the property of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.
155. At all times material hereto the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., had knowledge of the matters alleged above yet they failed to take the necessary steps to correct the same or they ignored them or they ignored the advice of persons upon whom they should have relied including, but not limited to, legal counsel, certified public accountants, licensed community association managers and others.
156. In the alternative, At all times material hereto the individual directors, as members of the board of directors of Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., had knowledge of the matters alleged above yet they failed to take the necessary steps to correct the same or they ignored them or they ignored the advice of persons upon whom they should have relied including, but not limited to, legal counsel, certified public accountants, licensed community association managers and others.
157. As a result of the breach of statutory duty by Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II have lost their non-exclusive right of easement to the common areas and the value of their lots have been diminished thereby.
158. As a result of the breach of statutory duty by Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II have been required to pay assessments which they should not have been required to pay or they have paid assessments in an amount greater than they should have been required to pay the operation and maintenance of the common areas for the common areas which are no longer owned by Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC.,
159. As a result of the breach of statutory duty by Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., the owners in Cross Tie Ranch Phase I and II, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, have been damaged in that the value of their lots have been damaged in that the value of the lots have been impaired or the value of the entire development has been impaired or diminished by the breach of statutory duty.
160. Pursuant to the provisions of the Amended Declaration and Chapter 720, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II are entitled to recover, in addition to costs and disbursements allowed by law, such sums as the Court may adjudge to be reasonable for the services of the undersigned as their attorney.
161. Pursuant to the provisions of Chapter 720, Florida Statutes, MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II is entitled to recover, in addition to costs and disbursements allowed by law, such sums as the Court may adjudge to be reasonable for the services of the undersigned as their attorney.
WHEREFORE, Defendants / Counter Claimants / Cross Claimants / Third Party Plaintiffs MCENTIRE Defendant/Counter-claimant, individually and as class representatives of all past and present owners in Cross Tie Ranch Phase I and II, demand judgment against Defendant / Cross-Defendant, CROSS TIE RANCH OF LAKE COUNTY HOMEOWNERS’ ASSOCIATION, INC., formerly known as CROSS TIE RANCH AT BLACK BEAR RESERVE HOMEOWNERS ASSOCIATION, INC., as well as an award of attorneys' fees and costs.
COUNT VI
[BREACH OF FIDUCIARY DUTY AS TO CROSS TIE RANCH HOA]
162. Paragraphs 1 through 71are re-alleged and incorporated by reference herein.
163. In the alternative and in the event that it is determined that the property entity to implement and govern the provisions of the Amended Declaration is Third Party Defendant, CROSS TIE RANCH HOA, INC., then this is a claim for breach of fiduciary duty against Third Party Defendant, CROSS TIE RANCH HOA, INC.
164. At all times the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOA, INC., were under a duty to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of the corporation and all owners in Cross Tie Ranch Phase I and II.
165. At all times material hereto the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOA, INC., owed a fiduciary duty to MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, to discharge his or her duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he or she reasonably believed to be in the best interests of all owners in Cross Tie Ranch Phase I and II. The duty owed arises out of the provisions of the Amended Declaration alleged above as well as pursuant to the provisions of Chapter 720, Florida Statutes, as well as the common law.
166. Specifically, Third Party Defendant, CROSS TIE RANCH HOA, INC., owed a fiduciary duty to all owners within the development known as Cross Tie Ranch, Phase I and II, to implement the provisions of the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch in Official Records Book 1326 Page 2038 et seq., in the Public Records of Lake County, Florida.
167. At all times material hereto the Third Party Defendant, CROSS TIE RANCH HOA, INC., owed a fiduciary duty to MCENTIRES, individually and as class representatives of all owners in Cross Tie Ranch Phase I and II, to discharge its duties in good faith with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner it reasonably believed to be in the best interests of all owners in Cross Tie Ranch Phase I and II.
168. At all times material hereto the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOA, INC., breached their duty as directors in that they did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by one or more officers or employees of the corporation whom the directors reasonably believed to be reliable and competent in the matters presented.
169. Alternatively, the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOA, INC., breached their duty as directors in that they did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by legal counsel, public accountants, or other persons as to matters the directors reasonably believed were within the persons' professional or expert competence.
170. Alternatively, the individual directors, as members of the board of directors of Third Party Defendant, CROSS TIE RANCH HOA, INC., breached their fiduciary duty by not seeking the advice of legal counsel, public accountants, or other persons as to matters the directors reasonably should have believed were within the persons' professional or expert competence as to the matters alleged herein.
171. At all times material hereto Third Party Defendant, CROSS TIE RANCH HOA, INC., breached its duty in that it did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by one or more officers or employees of the corporation whom the directors reasonably believed to be reliable and competent in the matters presented.
172. Alternatively, Third Party Defendant, CROSS TIE RANCH HOA, INC., breached its duty in that it did not rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by legal counsel, public accountants, or other persons as to matters it reasonably believed were within the persons' professional or expert competence.
173. Alternatively, Third Party Defendant, CROSS TIE RANCH HOA, INC., breached its fiduciary duty by not seeking the advice of legal counsel, public accountants, or other persons as to matters it reasonably should have believed were within the persons' professional or expert competence as to the matters alleged herein.
174. Specifically, Third Party Defendant, CROSS TIE RANCH HOA, INC., breached that fiduciary duty by failing to require the Declarant, Cross-Tie Limited Partnership, a Delaware Limited partnership, to convey the properties subject to the Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements of Cross Tie Ranch to the Third Party Defendant, CROSS TIE RANCH HOMEOWNERS ASSOCIATION, INC.
175. Specifically, Third Party Defendant, CROSS TIE RANCH HOA, INC., breached its fiduciary duty to the Plaintiffs and in their representative capacity as follows
A. The common areas have not been held as property subject to the Amended Declaration.
B. There have been improper expenditures not authorized by the governing documents.
C. There has been a commingling of funds in contravention of the governing documents.
D. Alternatively, there have been expenditures for repairs that are not the responsibility of the Third Party Defendant, CROSS TIE RANCH HOA, INC Association.
E. There has been a misuse of funds for improper and illegal purposes.
F. There have been violations of the governing documents, including the rules and regulations.
G. There have been alterations of the common elements without authority by allowing a fence to be built on the common areas which have ex