Article Courtesy of The Tampa Tribune
By TOM BRENNAN
Published February 7, 2009
TAMPA - After years of hearings, a weeklong jury trial, two appeals and costs running into the hundreds of thousands of dollars, a ruckus over who should pay to sod a lawn in a deed-restricted community is back to square one.
A three-judge panel in Hillsborough County Circuit Court has reinstated a lawsuit filed by Edward and Billye Simmons against the Pebble Creek Homeowners Association.
The judges overturned a jury verdict in favor of the association, a ruling awarding it $118,773.31 in attorney fees and costs, and a pending foreclosure against the couple's property.
This week's ruling ordered a new trial on all issues in circuit court, removing the case from county court, where it has languished since 2002.
Edward Simmons said he doesn't question his decision to spend as much as the association to fight a $2,212 bill it imposed for replanting the lawn at a rental home he and his wife own at 9769 Fox Hollow Road.
"It is the right thing to do," he said. "It was an abuse of power; they abused their authority."
Association officials and the group's lawyer declined to comment.
The dispute started in August 2000 when the association lodged a deed-restriction complaint against the couple. They ignored it, saying their yard didn't look any different from neighboring yards - all then victims of a record drought.
In January 2002, the association replaced the lawn and billed the couple for sod and labor. When they didn't pay, the association sued in county court in June 2002.
Simmons said he was willing to pick up the tab for the lawn around the house but not for the patch next to the county's right of way. He contends the deed restrictions said that part of the yard was public property and maintenance costs were to be shared by all in the 1,049-home subdivision through annual assessments - a position supported by the appeals judges.
Simmons, a real estate broker and retired Tampa police captain, also contends the association trespassed when it installed the replacement lawn.
The case passed through a series of judges, a factor the appeals panel cited in its reversal.
"The problems plaguing this case appear to have been aggravated by a lack of continuity caused by a revolving door of county court judges," the judges said in their decision.
After a weeklong trial in February 2006, a jury ordered the couple to pay. The association put a lien against the property and proceeded to foreclosure. But before the property could be auctioned in August 2007, the sixth judge in the case suspended the foreclosure after the couple posted a bond covering the legal costs while Simmons appealed.
Simmons said he and his wife had a contract to sell the house during the height of the recent real estate boom, but the association wouldn't remove the lien even after he promised to place most of the purchase price with the court to cover eventual legal costs.
He said he plans to recoup that loss in the new trial. He said that was one reason he wanted the case transferred to circuit court. County court is limited to damages less than $15,000.
"It is a shame the only way justice is served is if you have the money to pursue it," he said.
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