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Homeowners must pay for new sod

Published Feb. 25, 2006

The ongoing legal battle over a yellow lawn got its first dramatic conclusion Friday after a jury sided with a homeowners association that replaced sod after repeatedly warning a couple to fix their yard.

Ed and Billye Simmons must pay the Pebble Creek Homeowners Association $2,212 for sod, the jury found, because the Simmonses breached their obligation to keep a first-class landscape.

However, the case continues to be bogged down in legal issues, including a countersuit filed by the Simmonses that will likely mean another jury trial, lawyers from both sides said.

"The case goes on and on," a disappointed Ed Simmons said.

The Simmonses' lawyer contended that the yard on Fox Hollow Road was the victim of the worst drought in recorded history, and that the Simmonses were singled out by the association.

Meanwhile, an association attorney argued that the lawn was the worst of the worst in the deed-restricted community in New Tampa.

"I'm obviously pleased," said Michael Carricato, the former association president. "All we were trying to do was make our community look better."

Jurors had stacks of documents to review - deed restrictions, covenants and letters - to come to their decision.

Homeowners must sign an agreement with a deed covenant that allows the association to enter a property and fix a problem without owner consent.

"The defendant was not compliant," said jury foreman Jeff Olivier. "It was covered in the declaration."

However, Olivier said, the verdict, which took three hours to reach, should not absolve the association of any wrongdoing.

"Our decision is not saying the HOA did everything right," he said. "We felt they could've kept better records, their system was flawed, but again, the defendant was not compliant."

Before announcing a verdict, jurors slipped the judge a question: "Should legal fees be added to the amount of damages by the jury or the court?"

Judge Cheryl Thomas scribbled back: the court.

Olivier, a 28-year-old Metlife insurance salesman, said jurors did not want the Simmonses to bear the burden of the expenses.

"We weren't fully comfortable with the Simmonses having to pay the fees," he said.

A relatively new state law stops association boards from foreclosing on homeowners who don't pay fines. The new law also sends homeowners and their associations into mediation before before using the courts.

However, that law was passed after the costly saga between the Pebble Creek Homeowners Association and the Simmonses began.

The couple contend the association overstepped its authority when it replaced the grass. An appeals court decision that allowed for the Simmons countersuit came as the trial neared. Their lawyer asked that the trial be put on hold so that all issues might be heard at once.

But Thomas denied the request, saying the case had dragged on for too long.

So despite Friday's verdict, the fight is not over. The Simmonses, in addition to the countersuit, will appeal Friday's decision, said their lawyer, William Burton.

Olivier and the rest of the jurors had no idea how high the legal bill was. When told later that it had reached $100,000, he raised his eyebrows.

"We all felt perhaps it was an issue that should have been settled before it got to this point," he said. "We were here because of principle."