Article Courtesy of The Orlando
By Lauren Ritchie
Published February 4, 2017
Three years ago, a Mount Dora attorney who has been a member of the Florida Bar
for 35 years but never really practiced law got annoyed by the
builder-controlled homeowner association at Sullivan Ranch, where she lives.
Sara MacKenzie thought that Centex Homes, owner of vacant lots in the
subdivision south of State Road 46, should have been paying its share for those
lots into required reserve funds — fees that today are estimated at $1 million.
And so it began.
“I think this probably might be a
little over Mrs. MacKenzie’s head, to be quite candid. … I will
offend everybody in the room, but this isn’t something that — to be
involved in this kind of litigation at this level, you can’t just
walk out and say that ‘I’ve drafted wills,’ or ‘I’ve done real
estate closings’ and walk into a courtroom and deal with something
…it’s just that she’s not experienced in this area of law and that
became obvious to all of us pretty early on.”
Lake Circuit Judge William Law
Transcript of July 27, 2016 hearing
The battle with Centex, owned by one of the largest homebuilders in America and
represented by a politically high-powered, well-respected Florida law firm,
stretched over three long, painful years in which MacKenzie, 71, struggled to
litigate a complex question in an extremely specialized area of law. MacKenzie
and her bank account were up against the company owned by PulteGroup, which
reported $816 million in pre-tax earnings in 2015 along with a $2.3 billion
reinvestment in growing the company.
Over the years since
she filed the suit, MacKenzie has lost friends in the rural
community that is perched a hill overlooking Round Lake. She
has been inexplicably opposed by some residents who would
directly benefit if she were able to force Centex to make
the reserve contributions.
Her suit against the developer sparked pettiness such as “No
trespassing” signs on the lawns of neighbors on both sides
of her duplex. MacKenzie said several women in her
subdivision told her she wasn’t a “real lawyer” and didn’t
know what she was doing because she had practiced for only a
few years after her graduation from law school at the
University of San Diego in 1982. They said she didn’t
respect their husbands, who were dealing with Centex and
were perfectly satisfied with the way things were going.
“They hate me now,” she said. “And they were best friends.”
Such criticism is
particularly stinging for a woman who dropped out of high
school to marry and have her first baby at 16 and a second
four years later. But MacKenzie persevered.
Sara MacKenzie of Sullivan Ranch holds a banner that
friends greeted her with after she won an appeal in a lawsuit against
Centex Homes, developer at Sullivan Ranch.
At the beginning of the case, Lake Circuit Judge William Law threw out her suit
five times before accepting a sixth version that satisfied him. Centex lawyers
from Lowndes, Drosdick, Doster, Kantor & Reed of Orlando dogged her every
misstep in pleadings filed with the court. MacKenzie’s husband, Ralph, 82,
estimated the couple has spent about $10,000 of their own money on costs alone
to fight the case so far.
At the end of the litigation, Law remarked in open court that the matter was “a
little over Mrs. MacKenzie’s head to be candid,” and he ruled against her,
forcing MacKenzie to take the matter to the 5th District Court of Appeal in
Perhaps that panel of three appellate judges thought the matter was a little
over Law’s head. They overturned the critical piece of Law’s ruling on Dec. 22.
Against all odds, MacKenzie won — and not just for herself.
Writing the unanimous opinion, Chief Judge Jay P. Cohen stated that Centex’s
interpretation of Florida law was “incorrect” and that it “should not be read to
excuse a developer’s otherwise valid obligation to fund reserves while it
controls the HOA.”
Freak out time in Developerland!
Centex lawyer Matthew Brenner from the Lowndes firm quickly filed a request for
the appellate court to “certify” an appeal to the next highest venue, the
Florida Supreme Court. A certification notifies the higher court that the
question is one of “great public importance.”
Brenner argued the appellate ruling would have a “calamitous” financial impact
on developers who might abandon their communities under construction. He also
predicted strife, deteriorating community infrastructure and “significant”
assessments on homeowners.
An unimpressed appellate court just said no. Now there’s a rarity — big
developers not getting what they want in Florida.
Now that the appeals judges have ruled Centex should have contributed to reserve
accounts — that money later pays costs of re-roofing and painting — the matter
returns to Law and the Lake circuit court to answer this question: How much
should Centex pay?
Brenner said in an email, “A trial is still required, as the appellate court
decision remanded the case for further proceedings. We are confident we will
show the court that Centex has fulfilled all obligations to the residents of
MacKenzie’s pleadings say the amount owed is nearly $1.13 million and no trial
is necessary — just a hearing to determine the final amount.
As this dispute returns to court, let’s hope that the focus is on how much
Centex owes Sullivan Ranch residents, not on any clumsiness that might occur
because MacKenzie isn’t a slick, experienced litigator in the Lowndes tradition.
After all, she’s not charging anyone for her services. She’s representing just
herself and her husband.
Justice can’t be achieved when the focus is on playing courtroom
“Gotcha!” instead of getting to the merits of the case. Let’s hope those in the
courtroom do as the appellate court did — set aside minor procedural matters and
look at the heart of the claim.
CLICK ON THIS LINK TO READ 5th DCA