|
September 23, 2003
|
Case No: 246125-V - Fox Hills West Citizen's Association v McCann
|
|
Maryland
Municipal Court
County of Montgomery County
Branch: Circuit Court
|
Fox Hills West Citizen's Association
Represented by: Jeff VanGrack
CAI Member
v.
Frederic P. McCann
- Maryland
Represented by: pro se
|
Summary
DEFENDANT MCCANN'S ANSWER TO COMPLAINT BY FOX HILLS WEST CITIZENS ASSOCIATION & COUNTERCLAIM FOR PERMANENT INJUNCTION AND OTHER RELIEF
|
|
|
Causes of Action: Covenant Violation - Fence
|
Lawsuit Text
ANSWER TO COMPLAINT & COUNTERCLAIM FOR PERMANENT INJUNCTION AND OTHER RELIEF
I. ANSWER
COMES NOW THE Defendant, Frederic P. McCann, in answer to the Complaint and states as follows:
1. Paragraph 1 is denied
2. Paragraph 2 is admitted.
3. Paragraph 3 is denied.
4. Paragraph 4 is denied.
5. Defendant admits that a fence has been constructed on his property.
6. Paragraph 6 is denied.
7. Paragraph 7 is denied.
8. Paragraph 8 is admitted.
9. Paragraph 9 is admitted.
10. Paragraph 10 is denied.
11. Paragraph 11 is denied.
12. Paragraph 12 is denied.
13. Paragraph 13 is denied.
14. Defendant denies all averments in the Complaint, except those specifically admitted above.
DEFENSES
FIRST DEFENSE - Lacks Authority to Sue
15. Plaintiff lacks the authority to sue in a representative capacity.
SECOND DEFENSE - Lacks Standing to Sue
16. Plaintiff lacks standing to sue.
THIRD DEFENSE - Fails To State Cause of Action
17. Plaintiff fails to state cause of action upon which relief can be granted.
FOURTH DEFENSE - Estoppel
18. Plaintiff is estopped from asserting the authority to enforce the covenant for which they are not entitled.
FIFTH DEFENSE - Waiver
19. Plaintiff has waived the enforcement of covenants where they have allowed numerous different types of fences to exist and numerous side yard fences to extend beyond the side of the home on corner lots.
SIXTH DEFENSE - Discriminatory Application of Covenant
20. Plaintiff has engaged in selective enforcement of covenants by not applying a uniform standard.
SEVENTH DEFENSE - Laches
21. Plaintiff's complaint is barred in whole or in part by laches.
EIGHTH DEFENSE - Fraud
22. Plaintiff has engaged in acts of fraud and misrepresentation.
NINTH DEFENSE - Unclean Hands
23. Unclean hands bars Plaintiff's complaint in whole or in part.
OTHER DEFENSES
24. Defendant reserves the right to rely on any and all other defenses that become known prior to the trial of this matter.
WHEREFORE, Defendant prays:
1. That the Plaintiff's complaint be dismissed; and
2. Award Defendant attorneys fees, legal consultant fees, costs, and landscaping expenses; and
3. Grant such other and further relief, as this Honorable Court would deem just and proper.
II. COUNTERCLAIM FOR PERMANENT INJUNCTION AND OTHER RELIEF
I, Frederic P. McCann, respectfully request that this Honorable Court issue a permanent injunction and/or grant such other relief as requested herein against the Plaintiff, Fox Hills West Citizens Association Inc. and for cause, states as follows:
1. That I, Frederic P. McCann, am the owner of 9005 Wooden Bridge Road Potomac, MD 20854, taking title on May 29, 2002.
2. That the Plaintiff, Fox Hills West Citizens Association Inc. is a non-stock corporation, incorporated the State of Maryland.
3. That I, Frederic P. McCann, am and have been a member of the Fox Hills West Citizen's Association since August 2002.
4. That the property known as 9005 Wooden Bridge Road, Potomac, MD 20854 was developed and built by Pulte Development Company, in a subdivision known as Potomac Commons and later as Fox Hills West.
5. That in 1968, Pulte Development Company imposed restrictive covenants on the lot located at 9005 Wooden Bridge Road, Potomac, MD 20854, and created a "Community Committee" to enforce these restrictive covenants.
6. That the powers and duties of the Community Committee, established by Pulte Development Company, were to be transferred to a community-based organization only if approved by the owners of a majority of the residences located in Potomac Commons no later than January 1, 1973.
7. That on or about January 1971, a group of homeowners of the Potomac Commons neighborhood formed a corporation named Fox Hills West Citizens Association Inc. for civic and social purposes.
8. That on or about April 1973, the Plaintiff, through its Officers, and Board Members declared that,
"Pursuant to paragraph 4 of the Declaration of Covenants the Committee shall consist of (and said Committee's powers shall be exercised by) a group of persons to be chosen by the owners of a majority of the residences located in Potomac Commons. A majority of yes votes necessary is 268 – A majority was not attained."
9. That on or about May 1973, the Plaintiff, through its Officers, and Board Members intentionally made false statements to members of the community regarding the number of current residences occupied and the number and type of ballots received.
10. That on or about June 1973, the Plaintiff, through its Officers, and Board Members engaged in acts of fraud by claiming that the requisite number of ballots approving the assumption of the powers and duties of the Community Committee was attained.
11. That the Plaintiff, through its Officers, and Board Members did not attain the requisite number of ballots approving the assumption of the powers and duties of the Community Committee.
12. That on or about August 1973, the Plaintiff, through its Officers, and Board Members drafted a document titled "Potomac Commons Covenants and Guidelines" (Guidelines) which added further restrictive covenants and prohibitions.
13. That the Guidelines are discriminatory in nature.
14. That Plaintiff has attempted to enforce such Guidelines, thereby preventing certain individual homeowners from the full and useful enjoyment of their property.
15. That the Plaintiff claims to have the authority to enforce the additional restrictive covenants and prohibitions as outlined in said Guidelines.
16. That the Plaintiff, through its Officers, and Board Members have engaged in the use of intimidation and threats of legal action to force compliance of restrictive covenants and prohibitions from homeowners.
17. That on or about December 1986, the Plaintiff, through its Officers, and Board Members formed an entity named Fox Hills West Covenants Committee Inc.
18. That since 1986, the Plaintiff claims that Fox Hills West Covenants Committee Inc. is the entity responsible to enforce the Guidelines.
19. That the Plaintiff, through its Officers, and Board Members have breached their fiduciary duty to members of the Association by failing to uphold the primary purpose of the Association.
20. That the Plaintiff, through its Officers, and Board Members have breached their fiduciary duty to members of the Association by failing to act in a fair, open, and honest manner.
21. That the Plaintiff, through its Officers, and Board Members have breached their fiduciary duty to members of the Association by failing to grant access to Association books and records.
22. That the Plaintiff, through its Officers, and Board Members have breached their fiduciary duty to members of the Association by failing to retain important records of the Association.
23. That the Plaintiff, through its Officers, and Board Members have breached their fiduciary duty to members of the Association by engaging in acts of misrepresentation of material fact.
24. That the Plaintiff, through its Officers, and Board Members have breached their fiduciary duty to members of the Association by making false and misleading statements to residents of the Potomac Commons community.
25. That the Plaintiff, through its Officers, and Board Members has breached their fiduciary duty to members of the Association by intentional misuse of Association funds.
26. That the Plaintiff, through its Officers, and Board Members have breached their fiduciary duty to members of the Association failing to apply a uniform standard in enforcing restrictive covenants as defined in the Guidelines.
27. That the Plaintiff, through its Officers, and Board Members has slandered, and continue to slander the Defendant.
28. That the Plaintiff, through its Officers, and Board Members has inflicted and continue to inflict emotional distress upon the Defendant and members of his family.
29. That the Plaintiff, through its Officers, and Board Members has caused and continue to cause the Defendant financial harm, including but not limited to loss of wages and the diminishment of value of his residence.
WHEREFORE, Plaintiff respectfully requests this Honorable Court;
1. Issue a permanent injunction baring Plaintiff from exercising the powers and duties of the Community Committee as derived from Declaration of Covenants & Pulte Development Company; and
2. Issue a permanent injunction baring Plaintiff from enforcement of any restrictive covenant or prohibition, as defined in the Declaration of Covenants or Guidelines; and
3. Order Plaintiff to provide regular access to Plaintiff's books and records to members of the Association; and
4. Award damages in favor of the Defendant in the amount of $50,000; for
i. Diminution of value of real property,
ii. Loss of earnings,
iii. Medical and incidental expenses,
iv. Landscaping expenses; and
5. Award attorney's fees, legal consultant fees, and costs; and
6. Grant such other and further relief, as the Honorable Court would deem just and proper.
Respectfully Submitted,
_______________________
Frederic P. McCann
Potomac, MD 20854
CERTIFICATION OF SERVICE
I HEREBY CERTIFY that the forgoing was mailed first-class, postage prepaid on this 20th day of January 2004, to Jeffery Van Grack, Lerch, Early & Brewer, Chartered, 3 Bethesda Metro Center, Suite 380, Bethesda, Maryland 20814-5367.
_______________________
Frederic P. McCann
|
|
| |
|
View Comments (8) | Post a comment |
| |
|
|
|
|
|
|
|
