Court Hearing on Summary Judgements Completed 5/15
May 15, 2015 14:36:11 GMT -5
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Post by Admin on May 15, 2015 14:36:11 GMT -5
The showdown at Courthouse Corral has happened, at long last. Bottom line (for the bottom-line folks) is NO DECISION reached by the Judge. The Judge will be reviewing all Motions, cases and arguments and be writing a decision in the near future. Timeline uncertain.
The hearing itself was intense and fascinating. It was conducted in a Sm all meeting room-no bottled water, coffee or donuts served. Defense counsel for SLohA was Tower Hill Insurance company counsel (2 attorneys), one attorney from SLohA General Counsel to observe only, DBag and my lawyer Frd O'N eel (Attny) and myself (Plaintiff) and Gngr (observer).
In opening, it was agreed by both sides not to argue "issues of fact" and the only thing that would be addressed was the question: "Do original Covenants give the Association permission to amend the Covenants?" The record of the Minutes of 1986, which clearly showed that the Amendment failed to reach the "release" affirmative voting threshold was not brought up and an assumption was allowed to prevail that it was "agreed" not to bring that up as an issue. This is one of those inscrutable things about how legal strategies are decided.
So...SLohA says that the governing documents--collectively--gives Association authority to amend even though the Covenants do not specifically and independently specify an amendment procedure.
Plaintiff says that "amending" is not synonymous with "releasing" and in contractual contexts, "amending adds, increases or changes" a burden while "releasing lessens a burden". The Covenants specify a release clause only. Judge comments that one cannot "release AND substitute" without a specific provision giving that authority. Absent clear language to amend, the 100% approval threshold must be met under common law.
SLohA insists that this 100% threshhold is "overarching" and not required by other statutes for other types of governing documents such as Articles, Bylaws and Rules & Regs. SLohA stated that even if the Judge decides that there is no amendatory provision in the original Covenants, that there "is other basis that allowed SLohA to proceed as they did". SLohA then argued against Plaintiff's related case law citations, citing details of the content of amendments which supposedly limited their applicability to the issue. SLohA also referenced the condo law (which SLohA is not), the not-for-profit corporate law (which did not address homeowner associations' Covenants with any specificity in 1972) and FS 720 which was not even a statute until 2000. These were referred to as alternative arguments.
Editor impression: Listening to and seeing SLohA arguments was somewhat uncomfortable; Defense seemed to be anxious and lose the thread of logic, stuttered and was generally unconvincing. At that point, the co-Defense counsel picked up the Defense's arguments.
Plaintiff rebutted that all that was "interesting but irrelevant--the documents are separate fish". The Covenants are a contract between the homeowner and the Association and the Articles and Bylaws are just corporate documents and the same standard does not apply.
SLohA continued to argue against the "100% approval" requirement for amending the Covenants (in the absence of an amendatory provision in the Covenant) by pointing to condo law under FS718 (referred to as an "analagous authority" argument) and another case law which, on further reading, actually supported Plaintiff's assertion of the necessity of unanimous approval of all owners in exceptional situations.
SLohA then argued that it was the successor to the Developer and it was pointed out by Plaintiff that "if SLohA wants to be afforded the benefits of being a successor it must also assume responsibility for a poorly-written set of documents. The Judge asked "Should the homeowner take responsibility for sloppy drafting?" SLohA accepted that it must then take responsibility for vague and ambiguous language drafted by the Developer in 1972 under a "rule of construction" i.e. if something is vague or uncertain, then bias must go against the drafter of the language and in favor of the homeowner.
Judge asked "What does the Association present rely on?" Defense states "It has been acting 'as if' the Amendments were valid and that implicit in 'release' is 'amendment'. Judge referred to this as "bootstrapping" (Pulling oneself up by one's own bootstraps e.g. amending "after the fact").
Plaintiff final remarks: there are pertinent Rules of Construction (of contracts/covenants):
1...the expression of one thing means the exclusion of all other things, means that whatever is omitted is understood to be excluded. The maxim is based on the rationale that if the writer/creator had intended to accommodate a particular remedy or allowance, it would have done so expressly;
2....Rule of Strict Construction: If the contract contains ambiguous terms, they are strictly construed against the party who drafted the contract.
3....Rules about construction of Restrictive Covenants: Restrictive covenants are subject to the general rules of contract construction. A restrictive covenant's words cannot be enlarged, extended, stretched, or changed by construction. All doubts concerning a restrictive covenant's terms are resolved in favor of the free and unrestricted use of the land, and any ambiguity must be strictly construed against the party seeking to enforce the covenant.
I have omitted a lot of discussion of case citations; these discuss similarities and dissimilarities to the present case and comprise "legal fine print" in support of issues. All of the issues discussed were written in the individual attorney Motions for Summary Judgement. It was a new perspective to see and hear these arguments expanded in the hearing setting followed by controlled arguments and rebuttals to each point in the Motion.
Impression: I felt pretty positive as I left the hearing. As I said to a friend, I'll buy a bottle of champagne but I won't open it...yet.
The hearing itself was intense and fascinating. It was conducted in a Sm all meeting room-no bottled water, coffee or donuts served. Defense counsel for SLohA was Tower Hill Insurance company counsel (2 attorneys), one attorney from SLohA General Counsel to observe only, DBag and my lawyer Frd O'N eel (Attny) and myself (Plaintiff) and Gngr (observer).
In opening, it was agreed by both sides not to argue "issues of fact" and the only thing that would be addressed was the question: "Do original Covenants give the Association permission to amend the Covenants?" The record of the Minutes of 1986, which clearly showed that the Amendment failed to reach the "release" affirmative voting threshold was not brought up and an assumption was allowed to prevail that it was "agreed" not to bring that up as an issue. This is one of those inscrutable things about how legal strategies are decided.
So...SLohA says that the governing documents--collectively--gives Association authority to amend even though the Covenants do not specifically and independently specify an amendment procedure.
Plaintiff says that "amending" is not synonymous with "releasing" and in contractual contexts, "amending adds, increases or changes" a burden while "releasing lessens a burden". The Covenants specify a release clause only. Judge comments that one cannot "release AND substitute" without a specific provision giving that authority. Absent clear language to amend, the 100% approval threshold must be met under common law.
SLohA insists that this 100% threshhold is "overarching" and not required by other statutes for other types of governing documents such as Articles, Bylaws and Rules & Regs. SLohA stated that even if the Judge decides that there is no amendatory provision in the original Covenants, that there "is other basis that allowed SLohA to proceed as they did". SLohA then argued against Plaintiff's related case law citations, citing details of the content of amendments which supposedly limited their applicability to the issue. SLohA also referenced the condo law (which SLohA is not), the not-for-profit corporate law (which did not address homeowner associations' Covenants with any specificity in 1972) and FS 720 which was not even a statute until 2000. These were referred to as alternative arguments.
Editor impression: Listening to and seeing SLohA arguments was somewhat uncomfortable; Defense seemed to be anxious and lose the thread of logic, stuttered and was generally unconvincing. At that point, the co-Defense counsel picked up the Defense's arguments.
Plaintiff rebutted that all that was "interesting but irrelevant--the documents are separate fish". The Covenants are a contract between the homeowner and the Association and the Articles and Bylaws are just corporate documents and the same standard does not apply.
SLohA continued to argue against the "100% approval" requirement for amending the Covenants (in the absence of an amendatory provision in the Covenant) by pointing to condo law under FS718 (referred to as an "analagous authority" argument) and another case law which, on further reading, actually supported Plaintiff's assertion of the necessity of unanimous approval of all owners in exceptional situations.
SLohA then argued that it was the successor to the Developer and it was pointed out by Plaintiff that "if SLohA wants to be afforded the benefits of being a successor it must also assume responsibility for a poorly-written set of documents. The Judge asked "Should the homeowner take responsibility for sloppy drafting?" SLohA accepted that it must then take responsibility for vague and ambiguous language drafted by the Developer in 1972 under a "rule of construction" i.e. if something is vague or uncertain, then bias must go against the drafter of the language and in favor of the homeowner.
Judge asked "What does the Association present rely on?" Defense states "It has been acting 'as if' the Amendments were valid and that implicit in 'release' is 'amendment'. Judge referred to this as "bootstrapping" (Pulling oneself up by one's own bootstraps e.g. amending "after the fact").
Plaintiff final remarks: there are pertinent Rules of Construction (of contracts/covenants):
1...the expression of one thing means the exclusion of all other things, means that whatever is omitted is understood to be excluded. The maxim is based on the rationale that if the writer/creator had intended to accommodate a particular remedy or allowance, it would have done so expressly;
2....Rule of Strict Construction: If the contract contains ambiguous terms, they are strictly construed against the party who drafted the contract.
3....Rules about construction of Restrictive Covenants: Restrictive covenants are subject to the general rules of contract construction. A restrictive covenant's words cannot be enlarged, extended, stretched, or changed by construction. All doubts concerning a restrictive covenant's terms are resolved in favor of the free and unrestricted use of the land, and any ambiguity must be strictly construed against the party seeking to enforce the covenant.
I have omitted a lot of discussion of case citations; these discuss similarities and dissimilarities to the present case and comprise "legal fine print" in support of issues. All of the issues discussed were written in the individual attorney Motions for Summary Judgement. It was a new perspective to see and hear these arguments expanded in the hearing setting followed by controlled arguments and rebuttals to each point in the Motion.
Impression: I felt pretty positive as I left the hearing. As I said to a friend, I'll buy a bottle of champagne but I won't open it...yet.