IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA HARBOR HILLS DEVELOPMENT, L.P., a Delaware limited partnership d/b/a HARBOR HILLS DEVELOPMENT, LTD., and HARBOR HILLS HOMEOWNERS ASSOCIATION, INC., a Florida corporation, CASE NO. 2009-CA-5804 vs. Plaintiffs, THE GROVE AT HARBOR HILLS HOMEOWNERS ASSOCIATION, INC., a Florida corporation, Defendant. / PLAINTIFFS MOTION FOR ORDER TO SHOW CAUSE AND MEMORANDUM OF LAW Plaintiffs, Harbor Hills Development, L.P., a Delaware limited partnership, d/b/a Harbor Hills Development, Ltd. ( Harbor Hills ), and Harbor Hills Homeowners Association, Inc. ( Harbor Hills HOA ), by and through their undersigned counsel, and pursuant to Rule 1.570 of the Florida Rules of Civil Procedure, respectfully move this Court for and Order directing the Defendant, The Grove at Harbor Hills Homeowners Association, Inc. ( the Grove ), and its President, John Frame, to show cause as to why they should not be held in contempt of court, and state: 1. On or about September 18, 2012, after a two-day trial this Honorable Court entered its Final Judgment, a true and correct copy of this Final Judgment is attached to this Motion as Exhibit A. 1

2. Subsequently, the Grove appealed the Court s Final Judgment to the Fifth District Court of Appeal ( 5th DCA ) raising a variety of issues. 3. On or about January 2, 2014, after hearing oral argument of all the parties, the 5th DCA issued its Mandate in which the Court states Following trial, the Court entered a well-reasoned Final Judgment concluding that the Agreement was valid and not terminable at will, Harbor Hills was entitled to damages for costs related to the maintenance of the Gate, and Harbor Hills had the right to control and maintain the Gate. The Grove now appeals. We affirm in all respects, except to the issue of control of the Gate. See Mandate at Page 2. 4. The 5th DCA states the Joint Use Agreement does not define the terms maintenance or control and proceeds to define these terms stating: Maintain means to keep something in its existing state by making repairs or correcting problems or to preserve it from failure or decline, while the term control means to have power over something, to direct the action or function of something in a certain way, or to exercise restraining or directing influence over something. See Mandate at Page 3. 5. The Court thus concluded that the Agreement expressly gives Harbor Hills primary responsibility for maintenance of the West Gate, while ultimate control of the West Gate, including staffing decisions, remains with the Grove, subject to the easement rights reserved to the residents of Harbor Hills. See Id. 6. Accordingly, the 5th DCA reversed and remanded issue of control to this Court to amend its Final Judgment consistent with the 5th DCA Opinion, while affirming in all other respects. See Id. 2

7. On or about January 7, 2014, this Court issued its Amendment to Final Judgment, which states: Paragraph 1(c) of the Final Judgment is deleted and replaced with the following: 1(c) Harbor Hills has the right to maintain the West Gate. However, ultimate control of the West Gate, including staffing decisions, remain with the owner, the Grove, subject to the easement rights reserved to the residents of Harbor Hills. The Amendment to the Final Judgment further states except as amended herein, the Final Judgment remains as stated. A true and correct copy of the Amendment to Final Judgment is attached as Exibit B. 8. On the very day that the 5th DCA s Mandate was issued, the Grove, acting through its President, John Frame, caused to be deleted from the access control system at the West Gate entry codes for Harbor Hills residents so that Harbor Hills residents were unable to gain access to the West Gate. See Affidavit of Christopher V. Carlyle attached to this Motion as Exibit C. Additionally, others have been locked out of the gate as well, and their Affidavits will be forthcoming. 9. This action is expressly contrary to the 5th DCA s Mandate and is in direct contravention of Paragraph 1(e) of this Court s Final Judgment, which states the Grove is permanently enjoined from any action inconsistent with the Agreement and from restricting the access of any members of Harbor Hills HOA or Developer through the West Gate. 10 Similar conduct of the Defendant and Mr. Frame was the primary motivation for the Plaintiffs seeking, and ultimately being awarded, injunctive relief against the Defendant, which remains in effect pursuant to this Court s Final Judgment. 11 Further, shortly after the 5th DCA s Mandate, the Grove circulated two Entry Operating Policies, copies of which are attached to this Motion as Exhibit E, which go far beyond the relief entitled to the Grove by the 5th DCA s Mandate, and enter into areas that are clearly maintenance in nature, including the Grove s insistence that it be the party that maintains the entry and deleting of telephone directory codes, telephone numbers, names, security codes and remote transmitters through its vendor. Not only does this usurp the right of Harbor Hills pursuant to the Joint Access Agreement, and this Court s Judgment, but more importantly,

creates precisely the situation that existed when the Grove attempted to unlawfully terminate the Agreement and began hindering access to Harbor Hills residents, necessitating the Plaintiffs claims for injunctive relief. 12 No further proof of the necessity for Harbors Hills to be the party to maintain the system can be demonstrated than what has occurred, as on the very day that the Mandate was issued, Mr. Frame apparently could not restrain himself from violating this Court s Final Judgment and interfering with access rights of Harbor Hills residents. 13 Further, as stated by the policies that the Grove has circulated the touch key system is grandfathered through December 31, 2015, or unless the system is no longer operational due to system failure of any kind, whichever comes first. No new requests will be filled. Additionally, pursuant to these policies, for significant portions of every day there will be no controlled access through the Gate, as the Gate will open automatically for anyone who attempts to enter. 14 As stated by the 5th DCA, Harbor Hills has the right to maintain the Gate in its existing state, making repairs or correcting problems. Adding or deleting names, issuing access codes and maintaining the existing touch key system clearly fall in the definition of maintenance. By contrast, the Defendant through its counsel, takes the position that the 5th DCA s language means that the Defendant can take any sort of action it chooses with respect to the West Gate, and the Plaintiffs only role is to be burdened with the obligation to maintain any repair work that becomes necessary. See attached email correspondence from Rania Soliman dated January 8, 2014 attached to this Motion as Exhibit F. 15. The point missed by both the Defendant, and its counsel, is that while the 5th DCA may have reversed and remanded on the term control, this was because that term was not found in the Joint Use Agreement. The 5th DCA s Opinion explicitly affirmed this Court s determination of the validity of the Agreement, and the Appellate Court s Mandate cannot be used by the 4

Defendants to attempt to rewrite or abrogate the parties Agreement. 16. As stated in Section 3 of the Agreement The above described portion of Grove Heights shall remain a private road. Further, as stated in Section 4 Each party shall also share the expense of obtaining and employing staff to man the gatehouse and/or operate the gate and any other costs associated with controlled access. (emphasis added).. 17. Thus, while the Grove has been granted control over its property, specifically as to staffing decisions, it does not have the ability to change the fundamental character of the Plaintiffs rights by eliminating controlled access, as clearly provided by the Agreement. To do so completely rewrites the parties Agreement and disregards both this Court s and the 5th DCA s decision. 18. Finally, there is no conceivable reason for the Grove to continue to usurp the rights of the Plaintiffs other than out of desire to continue its pattern of disregarding the Plaintiffs contract and easement rights. 19. In an attempt to reach a reasonable resolution in accordance with the Plaintiffs rights pursuant to the Joint Access Agreement, the Plaintiffs proposed to the Defendant that Harbor Hills install and maintain its own touch key system exclusively for the use of Harbor Hills residents, which Harbor Hills would pay for entirely. Unfortunately, the Grove completely rejected this proposal. 20. This Court has jurisdiction to enter a contempt order against the Defendant, and Mr. Frame, as a court which has granted a permanent injunction has inherent power to enforce it. City of North Miami v. M.L. and L. Enterprises, 294 So.2d 42, 44 (Fla. 3d DCA 1974). Pursuant to Rule 1.570(c)(2) of the Florida Rules of Civil Procedure, regarding the enforcement of judgments, if judgment is for the performance of a specific act or contract: the court may hold the disobedient party in contempt. See also, City of Parker v. Panek, 89 So.2d 291, 292 (Fla.1st 5

DCA 2000), holding because the final judgment, when reviewed in light of the pleadings and stipulations submitted in the earlier proceedings, clearly and unambiguously reveals that the appellees were ordered by the final judgment to remove the encroaching structure... we REVERSE the order insofar as it denies the City s motion for contempt. 21. As such, Plaintiffs respectfully request this Court issue an Order to Show Cause directing the Defendant and its President, John Frame, to appear and show cause as to why they should not be held in contempt for their violations of this Court s Final Judgment. See U.S. v. Fleischman, 339 U.S. 349, 357 (1950) holding a command to a corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their powers for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience and may be punished for contempt. Wherefore, Plaintiffs, Harbor Hills Development, L.P., a Delaware limited partnership, d/b/a Harbor Hills Development, Ltd., and Harbor Hills Homeowners Association, Inc., by and through their undersigned counsel, and pursuant to Rule 1.570 of the Florida Rules of Civil Procedure, respectfully move this Court for an Order directing the Defendant, the Grove at Harbor Hills Homeowners Association, Inc., and its President, John Frame, to appear and show cause as to why they should not be held in contempt, for Plaintiffs costs and attorney s fees incurred in bringing this Motion, and for such other and further relief as this Court deems just and proper. MEMORANDUM OF LAW Pursuant to Rule 1.570(c)(2), a court has the ability to enforce a judgment by holding a party that disobeys it in contempt. As stated by the Florida Supreme Court in Parisi v.broward County, 769 So.2d 359, 363 (2000) citing Johnson v. Bednar, 573 So.2d 822 (1991). it has long been recognized that courts have the authority to enforce a judgment 6

by the exercise of their contempt powers. The reasons for allowing punishment by civil or criminal contempt are clear... It is essential that our courts have the judicial power to enforce their orders; otherwise, judgments are only advisory. If a party can make oneself a judge of the validity of orders issued by trial courts, and by one s own act of disobedience set them aside, then our courts are devoid of power, and the judicial power, both federal and state, would be a mockery. Quoting Gompers v Buck s Stove and Range Co., 221 U.S. 418, 450 (1911). In the instant case, the actions of the Defendant through its President, John Frame, clearly demonstrate the need for an order of contempt consistent with these principles. Sanctions in civil contempt proceedings may be employed for either or both of two purposes: to compensate the injured party for losses sustained, and to coerce the offending party into compliance with a previously issued court order. Id. citing United States v. United Mine Workers, 330 U.S. 258 (1947). When a court is tasked with entering an order of contempt to coerce a party into compliance with an order of the court, the court may consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired, as well as the defendant s financial resources and the seriousness of the burden on that particular party. See Id. at 825; See also, Kittel-Glass v. Oceans Four Condominium Association, 648 So.2d 827, 829 (Fla. 5th DCA 1995) (if individual violated terms of temporary injunction she would be guilty of contempt and remedies available included fines and incarceration). Accordingly, in the instant case, an Order to Show Cause should be directed to the Defendant, as well as the individual directing and carrying out the acts of the Defendant, its President, John Frame. Because the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal decisions are highly persuasive in ascertaining the extent and operative effect of various provisions of the Rules. Wilson v. Clark, 414 So.2d 526, 531 (Fla.1st DCA 1982). In determining whether Mr. Frame should be sanctioned, a United States Supreme Court decision is directly on point. In U.S. v. Fleischman, 339 U.S. 349, 357 (1950) the Supreme Court provided 7

A command to a corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience and may be punished for contempt. This reasoning has been followed by Florida courts. See e.g. Leshin v. TFB Properties, Inc., 802 So.2d 362, 365 (Fla. 4th DCA 2001); State Ex rel. Gulf Life Insurance Company v. City of Live Oak, 126 FL 132, 134 FL (1936). Mr. Frame should additionally be held in contempt because his actions evidence a continuing pattern of blatant interference with the Plaintiffs contractual rights. On or about February 2, 2010, Plaintiffs were forced in the instant case to file a Motion for Temporary Injunction because as stated in Paragraph 15 of that Motion on or about January 23, 2010, the Defendant had its representative (Mr. Frame) delete all residents of Harbor Hills, with the exception of individuals selected by the Defendant who provided the Defendant with information, from the access control system. Further, as stated in Paragraph 16 of the Motion for Temporary Injunction on or about January 26, 2010, Plaintiffs received a new notice from the Defendant informing the Plaintiffs that all Harbor Hills residents not residing with areas specifically selected by the Defendant needed to purchase access control devices to have independent access to the gate at issue, if these residents did not elect to purchase control devices, their only means of access after 5:30 p.m. would be by calling Harbor Hills North Gate, staffed solely by employees paid entirely by the Plaintiffs, and over whom the Defendant has no control or authority, and providing Plaintiffs employees with a personal identification number so that Plaintiffs employees could remotely open the West Gate at issue. Finally, as stated in Paragraph 17 of the Motion for Temporary Injunction on or about January 28, 2010, Plaintiffs counsel received a letter from Defendant s counsel, denying Plaintiffs request for an access control key and informing Plaintiffs counsel that as a result of a software update (performed by Mr. Frame) certain Harbor Hills residents access codes were accidently rendered inactive. It is evident at this point that the actions of Mr. Frame are not isolated and represent a pattern of behavior. Mr. Frame apparently has a vendetta against Harbor Hills 8

demonstrated by the fact that he could not wait even one day after the date the Mandate was issued to begin interfering with Harbor Hills residents access rights. 1 It is clear that the Defendant and Mr. Frame should be held in contempt for their conduct and that the Defendant cannot be entrusted with maintenance of the gate control system at the West Gate. Even if one were to accept that the Defendant s deletion of Harbor Hills residents access codes on two separate occasions were accidental, this clearly demonstrates that the Defendant, acting through its President, Mr. Frame, does not have the technological ability or judgment to so maintain this system. Based on the foregoing, it is clear that the Grove and its President, Mr. Frame, should be held in contempt of court, and therefore, the Plaintiffs respectfully request that this Court issue an Order to Show Cause why the Defendant and Mr. Frame should not be held in contempt of court, and ordered to comply with this Court s Amendment to Final Judgment and permanent injunction. 1 Mr. Frame s vendetta is further evidenced by the fact that Mr. Frame was one of three identified Harbor Hills residents voicing their grievances with Harbor Hills Development with respect to its operation of the Harbor Hills Homeowners Association in a local television news broadcast, despite the fact that Mr. Frame is not a resident of Harbor Hills nor a member of Harbor Hills Homeowners Association. 9

Respectfully submitted, McLIN BURNSED /s/ Phillip S. Smith PHILLIP S. SMITH Florida Bar No. 0999040 MATTHEW D. BLACK Florida Bar No. 0546224 JOHN D. METCALF Florida Bar No. 0806021 LINDSAY C. T. HOLT Florida Bar No. 0041179 McLin & Burnsed, P.A. Post Office Box 491357 Leesburg, FL 34749-1357 Telephone: 352/787-1241 Facsimile: 352/787-4265 Counsel for Plaintiffs Primary Email: phils@mclinburnsed.com Secondary Email: mattb@mclinburnsed.com Secondary Email: suee@mclinburnsed.com 10

CERTIFICATE OF SERVICE I HEREBY CERTIFY that in compliance with Florida Rule of Judicial Administration 2.516(b)(1) a true and correct copy of the foregoing has been served by electronic mail to: Robert L. Taylor, Esquire rtaylor@bplegal.com and rsoliman@bplegal.com, Becker & Poliakoff, P.A., this 17th day of January 2014. /s/ Phillip S. Smith 11