Property owner wins lengthy turf war

By GEORGE WILKENS | The Tampa Tribune | Published: October 01, 2012

A judge finally has resolved a deed-restriction dispute that spanned 11 years, involved dozens of court hearings, a weeklong jury trial, two appeals and a second trial, and cost tens — perhaps hundreds — of thousands of dollars.

A lawn that long ago withered and died launched the ruckus in 2001 that survived more than a decade in Hillsborough County’s courts.

The civil case, heard most recently during a three-day non-jury trial, resulted in a ruling favoring Edward Simmons, a real estate broker and retired Tampa police captain who steadfastly maintained that the Pebble Creek Homeowners Association acted illegally when it replaced his lawn in January 2002 and filed a $2,212 lien against the house he owns in New Tampa’s oldest subdivision.

A hearing will be scheduled to finalize damages and the big-ticket item: Simmons’ legal costs in the case, argued most recently by his fourth attorney, appellate lawyer David Caldevilla of Tampa.

“Hopefully, we’ll be able to recover all our attorney fees and costs,” Simmons said. “And if we are, that’s a staggering amount,” totaling $222,123, he said.

Additionally, Simmons’ January 2006 contract to sell the house for $215,000 fell through because the lien rendered the house at 9769 Fox Hollow Road unmarketable. Today it is worth $100,000 less, according to the court order factoring the loss into Simmons’ damages.

In his Sept. 21 order subtitled “Anatomy of an HOA Dispute Run Amok,” Circuit Court Judge James M. Barton II states that evidence did not support the association’s contention Simmons’ property “violated community standards of a green, relatively weed-free lawn.” It was similar to many lawns suffering “murderous emergency water use restrictions” during a severe drought that continued through September 2003.

When Simmons received a warning letter from the homeowners association in April 2001, he replied by contending that replacing sod during a drought and once-weekly irrigation restrictions would be a foolish waste of time and money.

A Southwest Florida Water Management District witness testified it would be unreasonable to expect St. Augustine lawns to be lush and green during “the drought of the century.”

Barton determined that the association lacked authorization to record the lien because it violated several of its own rules, including a requirement that three deed-restriction committee members examine a property before issuing such a warning.

Also, only about half the sod for which Simmons was billed was installed on his property, with the balance planted on county right-of-way between the sidewalk and street, or was deemed inferior and disposed of.

“These were my issues the whole time,” Simmons said soon after receiving the court order. “Being a cop, I could read the law. I just couldn’t see justice happening like this because, to me, it was so obvious. It’s caused me so much grief over the years.” – (813) 259-7124

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