AlaFile E-Notice

To: CHARLES ANDREW HARRELL, JR. JR.

cah@harrellmonaghan.com

05-CV-2014-900044.00

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA

The following complaint was FILED on 5/22/2014 11:53:17 AM

THE GARDENS AT GLENLAKES PROP. OWNER'S ASSN, INC. ET AL V. BALDWIN COU

05-CV-2014-900044.00

Notice Date: 5/22/2014 11:53:17 AM

JODY WISE CAMPBELL

CIRCUIT COURT CLERK

BALDWIN COUNTY, ALABAMA

SUITE 10

BAY MINETTE, AL 36507

251-937-0299

jody.campbell@alacourt.gov

312 COURTHOUSE SQUARE

IN THE CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA

THE GARDENS AT GLENLAKES *PROPERTY OWNER’S ASSOCIATION, INC.,et al., *

Plaintiffs, *

v. * CASE NO.: 05-CV-2014-900044

BALDWIN COUNTY SEWER SERVICE, L.L.C., *

Defendant. *

SECOND AMENDED COMPLAINT

The Plaintiffs, The Gardens at Glenlakes Property Owner’s Association, Inc., Lake View

Villas Association, Inc., Lake View Villas Association, Inc., Glenlakes Unit One Property Owners

Association, Inc., and Glenlakes Master Association, Inc., file the following Second Amended

Complaint, pursuant to Rule 15(a) of the Alabama Rules of Civil Procedure, in order to add counts

for specific performance and declaratory judgment:

PARTIES

1. The Plaintiff, The Gardens at Glenlakes Property Owner’s Association, Inc., is an

Alabama business entity with its principal address located in Baldwin County, Alabama.

2. The Plaintiff, Lake View Villas Association, Inc., is an Alabama business entity with

its principal address located in Baldwin County, Alabama.

3. The Plaintiff, Lake View Estates Property Owners Association, Inc., is an Alabama

business entity with its principal address located in Baldwin County, Alabama.

4. The Plaintiff, Glenlakes Unit One Property Owners Association, Inc., is an Alabama

business entity with its principal address located in Baldwin County, Alabama.

5. The Plaintiff, Glenlakes Master Association, Inc., is an Alabama business entity with

ELECTRONICALLY FILED5/22/2014 11:52 AM

05-CV-2014-900044.00CIRCUIT COURT OF

BALDWIN COUNTY, ALABAMAJODY WISE CAMPBELL, CLERK

2

its principal address located in Baldwin County, Alabama.

6. The Defendant, Baldwin County Sewer Service, L.L.C., is, upon information and

belief, an Alabama business entity with its principal address located in Baldwin County, Alabama.

FACTUAL ALLEGATIONS

7. On or about November 13, 1991, South Alabama Sewer Service, Inc. (“South

Alabama”) and Lakeview Realty Co., an Alabama general partnership (“Lakeview”), entered into

a contract entitled “Sewer Agreement.” (A copy of the Sewer Agreement is attached hereto as

Exhibit “A.”)

8. Lakeview was the developer of the certain group of subdivisions located in Foley,

Baldwin County, Alabama formerly known as Lakeview Estates but now are commonly known as

Glenlakes (collectively the “Subdivision”). The purpose of the Sewer Agreement was for the mutual

benefit of the future lot owners of the Subdivision and South Alabama by setting reasonable rates

for sewer taps and sewer service rates for the lot owners while ensuring the lot owners would

purchase sewer services from South Alabama.

9. The Plaintiffs are the owners associations organized for the purposes of maintaining,

preserving, repairing, controlling and keeping up the common areas of the Subdivision as well as

enforcing the respective restrictive covenants and the Sewer Agreement.

10. Upon information and belief, the Defendant is the successor in interest to South

Alabama’s right, title and interest in and to the Sewer Agreement.

11. The Defendant has been charging lot owners sewer tap fees and sewer service rates

in excess of those provided in the Sewer Agreement. Furthermore, the Defendant has coerced lot

owners into waiving their rights under the Sewer Agreement in order to be provided Sewer Service

3

when the Defendant is the only sewer service provider for the Subdivision.

COUNT IDECLARATORY JUDGMENT

12. The Plaintiffs hereby incorporate by reference all allegations contained in Paragraphs

1 through 11 hereof as if fully set out herein.

13. This action is brought and the Court’s jurisdiction is invoked pursuant to the

provisions of Code of Alabama (1975) § 6-6-220, et seq.

14. There is an actual controversy between Plaintiffs and the Defendant on which

substantial rights, status and/or legal relations depend. The parties dispute their respective rights,

duties and obligations under the Sewer Agreement, the applicability of the Sewer Agreement and

the ability of the Plaintiffs to enforce the Sewer Agreement.

WHEREFORE, the Plaintiffs pray that upon a final hearing, the Court will render a

declaratory judgment adjudging:

(a) that the Sewer Agreement was duly and properly recorded of record in the Office of

the Judge of Probate of Baldwin ;

(b) that the Sewer Agreement is a covenant running with each and every lot and parcel

of real property located in the Subdivision;

(c) that the Plaintiffs have the right, power and authority to enforce the Sewer Agreement

on behalf of their respective members;

(d) that the Plaintiffs be awarded reimbursement for all sums due their respective

members resulting from the overcharges by Defendant;

(e) that the each Plaintiff act as trustee of the any funds received pursuant to this action

4

to be held for the benefit of the respective members of each Plaintiff and be required to disburse such

funds to each such member entitled thereto; and

(f) that the Court award the Plaintiff such other, further or different relief as may be just

and proper, plus the costs of the action.

COUNT IISPECIFIC PERFORMANCE

15. The Plaintiffs hereby incorporate by reference all allegations contained in Paragraphs

1 through 14 hereof as if fully set out herein.

16. This action is brought and the Court’s jurisdiction is invoked pursuant to the

provisions of Code of Alabama (1975) § 8-1-40, et seq.

17. The Plaintiffs have performed all of their terms, provisions and obligations under the

Sewer Agreement and/or stand ready, willing and able to perform their terms, provisions and

obligations under the Sewer Agreement.

18. The Plaintiffs have demanded that the Defendant perform its obligations under the

Sewer Agreement, but the Defendant has failed and/or refused to do so.

19. The Plaintiffs are entitled to specific performance of the Sewer Agreement.

20. The Plaintiffs offer to do equity in the premises.

Wherefore, the Plaintiffs pray the Court for the following relief:

(a) a decree directing specific performance of the Sewer Agreement by the Defendant;

(b) an award to the Plaintiffs of Plaintiffs’ attorney’s fees and costs to be paid by

Defendant; and

(c) that the Court award the Plaintiffs such other, further or different relief as may be just

5

and proper.

COUNT IIIBREACH OF CONTRACT

21. The Plaintiffs hereby incorporate by reference all allegations contained in Paragraphs

1 through 20 hereof as if fully set out herein.

22. The Defendant breached the Sewer Agreement by charging lot owners sewer tap fees

and sewer service rates in excess of those provided in the Sewer Agreement.

23. As a direct and proximate cause of Defendant’s breach of contract, the Plaintiffs have

been damaged and will continue to suffer damages in the future.

Wherefore, the Plaintiffs demand judgment against the Defendant in an amount to be

determined by this Honorable Court for actual damages, plus interest and costs; and Plaintiffs

demand such other, further or different relief as may be just and proper.

COUNT IVCONVERSION

24. The Plaintiffs hereby incorporate by reference all allegations contained in Paragraphs

1 through 23 hereof as if fully set out herein.

25. The Defendant has converted monies from the lot owners in the Subdivision.

26. As a direct and proximate cause of Defendant’s actions, the Plaintiffs have been

damaged and will continue to suffer damages in the future.

Wherefore, the Plaintiffs demand judgment against the Defendant in an amount to be

determined by this Honorable Court for actual and punitive damages, plus interest and costs; and

Plaintiffs demand such other, further or different relief as may be just and proper.

6

COUNT VWILLFULNESS

27. The Plaintiffs hereby incorporate by reference all allegations contained in Paragraphs

1 through 26 hereof as if fully set out herein.

28. The Defendant has wilfully violated the terms of the Sewer Agreement and coerced

the lot owners into paying sums for sewer services and sewer tap fees in excess of those agreed upon.

29. As a direct and proximate cause of Defendant’s actions, the Plaintiffs have been

damaged and will continue to suffer damages in the future.

Wherefore, the Plaintiffs demand judgment against the Defendant in an amount to be

determined by this Honorable Court for actual and punitive damages, plus interest and costs; and

Plaintiffs demand such other, further or different relief as may be just and proper.

COUNT VIDEPRIVATION OF OWNER IN POSSESSION

30. The Plaintiffs hereby incorporate by reference all allegations contained in Paragraphs

1 through 29 hereof as if fully set out herein.

31. This action is brought pursuant to § 6-5-260 Ala.Code (1975).

32. The Defendant has unlawfully deprived and/or interfered with the lot owners’

possession of their personalty, to-wit: monies, to which they are entitled to possession.

33. As a direct and proximate cause of Defendant’s actions, the Plaintiffs have been

damaged and will continue to suffer damages in the future.

Wherefore, the Plaintiffs demand judgment against the Defendant in an amount to be

determined by this Honorable Court for actual and punitive damages, plus interest and costs; and

7

Plaintiffs demand such other, further or different relief as may be just and proper.

COUNT VIITHEFT OF PROPERTY BY DECEPTION

34. The Plaintiffs hereby incorporate by reference all allegations contained in Paragraphs

1 through 33 hereof as if fully set out herein.

35. This action is brought pursuant to the Code of Alabama, 1975, § 6-5-370.

36. The Defendants knowingly obtained control over the property of the lot owners with

the intent to deprive them of their right to such property in violation of the Code of Alabama, 1975,

§ 13A-8-3.

37. As a proximate result of the above described conduct of the Defendants, Plaintiffs

have suffered actual damages which continue today and are expected to continue in the future; and

great mental and emotional distress which continues today and is expected to continue in the future.

Wherefore, the Plaintiffs demand judgment against the Defendant in an amount to be

determined by this Honorable Court for actual and punitive damages, plus interest and costs; and

Plaintiffs demand such other, further or different relief as may be just and proper.

Respectfully submitted,

/s/ C. Andrew Harrell, Jr.C. Andrew Harrell, Jr. (HAR241)/s/ B. Andrew MonaghanB. Andrew Monaghan (MON040)Attorneys for Plaintiffs

8

OF COUNSEL:

Harrell & Monaghan, LLC1703 Gulf Shores ParkwayPost Office Box 4850Gulf Shores, Alabama 36547(251) 968-1555cah@harrellandwhetstone.combam@harrellandwhetstone.com

CERTIFICATE OF SERVICE

I do hereby certify that I have on this 22 day of May, 2014, served a copy of the foregoingnd

pleading on counsel for all parties to this proceed by United States mail, first class postage prepaid,or via e-mail as follows:

Bert P. Taylor, Esq.Taylor Ritter, P.C.26192 Canal Rd.P.O. Box 489Orange Beach, AL 36561

/s/ C. Andrew Harrell, Jr. C. Andrew Harrell, Jr.

ELECTRONICALLY FILED5/22/2014 11:52 AM

05-CV-2014-900044.00CIRCUIT COURT OF

BALDWIN COUNTY, ALABAMAJODY WISE CAMPBELL, CLERK