County Civil Court: -ISSUES-EVIDENCE- despite the trial court's narrowing of the issues for trial, the court erroneously permitted the injection of an entirely new issue over the timely objection of the appellant- Trial court erroneously allowed appellees to introduce new evidence and then refused to allow the appellant's witness to testify as to that new evidence. Trial court reversed. Gulf Harbor Woodlands Assoc., Inc., v. Karmatz/Doolitte, Jr., 51-2005-AP-6&7WS (Fla. 6th Cir. App. Ct. April 5, 2006).













Lower No: 51-2004-SC-002498WS



Lower No: 51-2004-SC-003047-WS




Appeal from Pasco County Court

County Judge Marc H. Salton


Robert S. Walton, Esq.

Attorney for Appellant


Fred Karmatz, pro se

David Doolittle, pro se




THIS Court has for review the matter of Gulf Harbors Woodlands Association, Inc., v. Fred Karmatz, 51-2005-AP-0006WS and Gulf Harbors Woodlands Association Inc., v. David L. Doolittle, Jr., 51-2005-AP-0007WS.[1] Gulf Harbor Woodlands Association appeals from a final order by the Pasco County Court involving the above cases. This Court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the trial court is REVERSED.

Plaintiffs/Appellees filed an amended complaint on November 18, 2004, which read

"Gulf Harbors Woodlands Assoc., Inc., and their officers, directors misrepresented themselves as a Homeowners Association as defined by Florida Statutes 7.20.303(1) and Fl. Statutes 720.301 (8a & b)(9) 2001-$59.00 per qtr, 2002 $61.00 per qtr, 2003 $100.00 per qtr, 2004 $75.00 per qtr., (1st, 2nd, 3rd, + 125.00 special assessment.


Defendant/Appellant (Gulf Harbors) filed a motion for summary judgment which was heard on December 16, 2004. Said motion essentially argued that the Association was valid and the Association did file Declarations of Protective Covenants with the county prior to the plaintiff's purchase of the property. Gulf Harbors also argued that they did in fact have bylaws in effect prior to 2004, but the bylaws were not filed prior to then because they did not have to be. Gulf Harbors argued that they are, therefore, entitled to dues and assessments.

Prior to the start of the scheduled trial, March 17, 2005, the court made findings regarding the motion for summary judgment. The court stated:

I'm going to find, based on the motion, I'm denying the motion but ruling that the statute requiring the recording of the documents in 1993 does not apply retroactively. I will agree with the defendant on that issue. . . .So the only issue--or the only issues what I find to be an issue, because I'm finding that the homeowners' association is valid, is a valid homeowners' association. And I think the only factual issue that needs to be resolved today and the reason the motion wasn't granted was whether the documents were not recorded to 2004, whether these plaintiffs were on notice of the documents. And I think that's as issue as to whether they're bound to have complied with the assessments as to the issue of whether they were noticed when they purchased the property. . . .And I--we--at the last hearing, that kind of came up, if you remember, but the issue was never really resolved. And then again, the issue needs to be resolved evidentiarily.


The court specifically found that the homeowner's association was a mandatory homeowner's association; but stated to plaintiff ". . .to me the only issue is a notice issue as to you as to whether you have to comply with those documents prior to them being recorded, and that was based on whether at the time you purchased your property you had actual knowledge of the documents." The court explained:


. . . There are homeowner's associations and the articles of incorporation and the bylaws gave them the power to assess, make assessments and so forth. . . .So the question is, when [plaintiffs'] purchased [the] property, were [they]aware of that. And that's really what we'll need to deal with at this point. If that's an issue and it's unclear--the problem is, it's unclear in the motions and the documentations as to whether --that is in dispute or not in dispute.


The judge stated that he found the bylaws were validated by the minutes and found that they were valid bylaws and the only issue is whether or not plaintiffs had notice. Thereafter, the judge entered a written Order on the Defendant's Motion for Summary Judgment. That order again limited the issue to whether or not plaintiffs had notice of the association, stating, "[t]he Court finds that the issue whether the Plaintiff had notice regarding the existence of Gulf Harbors Woodlands Association at the time of purchase presents a question of fact to be resolved at trial."

However, at trial, Karmatz was permitted to testify to the following;

If I saw the bylaws, then --see there's another issue is the bylaws, although you say they are in effect, and that's fine with me, by their actions, which I can prove in the past six months, they haven't followed the bylaws or the covenants in many issues, so they, by their very actions, have shown they're voluntary. Now, whether you want to hear that, it's a pretty important issue which has to do with assessments that they've done mid-year, which is in the covenants. It does say you're allowed to have annual assessments as per the bylaws. . . .They've had midyear assessments. That is against the covenants. . . . Secondly, in December they've had an annual meeting, on December 14th 2004. They stated in the letter to the community that [they were] following Florida Statute 306. What Florida Statute 306 says is you must follow -- which I have here."

At that point, counsel for Gulf Harbors advised the court that she did not receive notice of "this." She went on to argue "[p]lus I'm going to object to anything that's been transpired since, in the past six months because I believe that was not pled in the complaint and I was not placed on notice that this would be an argument today." The judge said "[l]et's let him testify." Counsel stated "I wanted to place my objection."

Karmatz proceeded to testify that the 'bylaws', which the court has since found valid, stated that the annual meetings must be between November 15th and December 7th. They had it on December 14th. Karmatz argued that they did not follow their own bylaws. The very covenants say you can only have annual meetings. He argued "[s]o if they are going to selectively enforce these covenants, they possibly lose the right to assess any--" Additionally, on September 22 they did a mid year assessment, which is also directly against the covenants and bylaws.

At that point, the court interjected "This hundred and twenty - five [ ] is not an issue, is not part of our complaint?" and Karmatz replied "Yes it is. That's in the complaint. It's part of the assessment that we paid."

Finally, at closing argument, Gulf Harbors argued that the ". . . issue here is whether the association has the authority to levy assessments and what the plans were placed on noticed with that duty to pay assessments to the association." The court asked: "[t]he plaintiffs argued that they have only authority to issue assessments at the end of the year. And this hundred and twenty five dollar assessment was issued during the middle of the year, and basically would be in violation of the articles of incorporation and bylaws." Counsel replied " . . .. They have just, I believe, amended their bylaws in . . August of 2004. I'm not sure. I do not have those to -- because I didn't know that was going to be an issue." The court replied "It's in the complaint." Counsel stated "Well, I thought the argument was based on the two statutes, 301 and 303, I believe. But anyway, I know those bylaws state that they can assess quarterly, I believe. . . . I'm sorry. I was just informed by my client that there was a membership vote to assess this hundred and twenty five dollars per resident." The court asked "Well, where in any of your documentation is there any authority to what you say that the members did?" Counsel replied "Your honor, the bylaws of '85 it says on Page 4 they can have a special meeting, a special meeting of the association may be called by the board at any time and manner therein provided, and there's no business--and they only need 20 percent of the voting members to call this special meeting. And that's what they did in this situation. They had an issue they needed some funds to pay some expenses, so they called--" The court interrupted "By laws and articles give them authority at that special meeting, whenever it may be, to asses the owners, make a financial assessment?" Counsel replied "I see what you're saying. May I have him (Duncan) look at it?" The court replied "I'll read it myself, but I didn't know if you just pointed it out to me." Counsel stated "I think Mr. Duncan could -- If Your Honor would allow him to." The court replied "No. I'm not going to allow it. I can read them as--" Counsel said "Okay. That's fine." Counsel then went on to argue her final argument regarding public policy; basically stating it would be against public policy to nullify a homeowners association existence and their ability to levy assessments because they were unable to provide all of the documents. It is sufficient to show that they are a corporation and have the right to levy assessments.

The court took it under advisement.[2]

On June 30, 2005, the court entered a Final Judgment. The court found that the defendant had not provided any evidence that the special assessment of $125.00 was enacted in compliance with the bylaws of the Gulf Harbors Woodlands Association. It was therefore Ordered and Adjudged that the Plaintiff's recover $125.00 as reimbursement for payment of the assessment, along with court costs of $175.00 and interest from November 8, 2004, in the amount of $5.54. It was further Ordered and Adjudged that plaintiff's claim be denied in all other respects. This was error.

Prior to trial, the court clearly narrowed the issues to be tried down to one; whether the appellees had notice of documents authorizing the levy of assessments by the Association. However, despite the trial court's narrowing of the issues for trial, the court erroneously permitted the injection of an entirely new issue over the timely objection of the appellant. The court allowed testimony as to the interpretation of documents relating to the vote of homeowners at the Associations annual meeting. Apparently, the trial court found that the issue had been alleged in the amended complaint. Having reviewed the amended complaint, this Court finds that even though the special assessment was raised in the petition, the trial court's narrow definition of the issue does not include the authority of the Association to impose the special assessment. Moreover, as argued by Gulf Harbors, after erroneously allowing appellees to introduce this new evidence, the trial court then refused to allow the special assessment to be explained by the appellant's witness at trial. It is, therefore,

ORDERED AND ADJUDGED that the ruling of the trial court is REVERSED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of March, 2006.


W. Lowell Bray, Circuit Judge

Primary Appellate Judge



Daniel D. Diskey

Circuit Judge



Stanley R. Mills

Circuit Judge



Copies furnished to:

Robert S. Walton, III

Fred Karmatz

David L. Doolittle, Jr.,






[1] Because both cases raise the same exact issue and were essentially tried together, the Court will address both cases in this opinion.


[2] On March, 28, 2005, counsel for Gulf Harbors filed a Supplemental Trial Memorandum explaining that "defendant's counsel incorrectly characterized the levy of $125.00 for each homeowner as a "special assessment". Counsel said that was factually incorrect and she was filing the memorandum to "supplement the trial record with the correct statement of the $125.00 levy, and to present the relevant documents concerning the $125.00 assessment together with a supporting affidavit verifying the authenticity of the documents in order to correct the misimpressions resulting from the argument of defendant's counsel." The court sent correspondence back to the parties acknowledging receipt of the documentation but stating "It is improper for me to consider any additional documentation at this time. . . "