# Sherman Hills Homeowners Association, Inc. v. Sierra, Brown

> District Court of Appeal of Florida · March 7, 2025

URL: https://www.frixlaw.com/law-library/cases/10818768

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** March 7, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

Case No. 5D2023-3245
LT Case No. 2023-CA-1374
_____________________________

SHERMAN HILLS HOMEOWNERS
ASSOCIATION, INC.,

Appellant,

v.

BRANDON GIBSON, BETTY HIGGS,
ANDREW OLSON, WILSON PEREZ,
BUDDY JAY JIMMERSON, SR.,
BRITTANY WEAVER, RANDALL
DUTCH, CATHERINE DUTCH,
JONATHAN MENDEZ, ALBA
MARTINEZ, LIONEL BROWN,
HAZEL BROWN, ARMANDO
SIERRA, ET AL,

Appellees.
_____________________________

On appeal from the Circuit Court for Hernando County.
Pamela Stinnette Vergara, Judge.

Duane A. Daiker, Jonathan J. Ellis, Kathleen G. Reres, and
Colleen R. McInerney, of Shumaker, Loop & Kendrick, Tampa,
for Appellant.

Beth Powers and Stephen Powers, Brooksville, pro se.
Justin R. Clark, of Attorneys Justin Clark & Associates, PLLC,
Maitland, for Appellees, Brittany Weaver, Wilson Perez, Andrew
Olson, Randall Dutch, Catherine Dutch, Jonathan Mendez, Betty
Higgs, Jerry Jones, and Nancy Humphreys.

No Appearance for Remaining Appellees.

March 7, 2025

HARRIS, J.

Sherman Hills Homeowners Association, Inc. (the
“Association”), appeals the trial court’s order sua sponte
dismissing its complaint with prejudice, discharging lis pendens,
and denying its motion for leave to amend the complaint. Because
we find that the trial court erred in dismissing the complaint with
prejudice, we reverse and remand for further proceedings.

On July 14, 2023, the Association filed a complaint asserting
a claim for declaratory relief and numerous counts of unjust
enrichment against various property owners (“Appellees”).
According to the complaint, the Association was responsible for
maintaining all common areas within the community where
Appellees lived, including the clubhouse, pool, streetlights, and
other common facilities. The land which is the subject matter of
the lawsuit was comprised of two sections of land platted into
individual lots for residential single-family homes, roads and
drainage retention areas, and one tract of land containing a
recreation area for common use. The subject land is identified on
three different plats, recorded in the Hernando County public
records and referred to as Section 3, “Phase V, and Tract A.
Appellees own the properties located within Section 3 and Phase
V.

The original developer recorded a Declaration of Covenants,
Conditions and Restrictions of Sherman Hills in 2001 (the “2001

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Declaration”). The 2001 Declaration encumbered the land in Tract
A and allowed for the addition of land in the future.

Two years later, the developer deeded Section 3 to a second
developer, Sherman Hills, LLC. The deed subjected Section 3 to
the 2001 Declaration. In October 2007, Sherman Hills, LLC
amended the 2001 Declaration to add Section 3, but for unknown
reasons in 2010, it recorded an amendment to the Declaration
removing Section 3. Between November 2013 and February 2015,
a third developer, LGI Homes Group, LLC (“LGI”) purchased
certain lots within Section 3. Because Section 3 was previously
subject to the 2001 Declaration which initially identified the
Association as the entity with authority to enforce the Declaration,
LGI “erroneously operated as if the 2001 Declaration governed
Section 3 and it failed to record a new declaration of covenants,
conditions and restrictions governing Section 3.”

In July 2016, LGI began selling lots within Section 3 to
individual buyers, including Appellees. Each individual deed
between LGI and the buyers stated that the property is “subject to
covenants, restrictions, easements of record and taxes for the
current year and subsequent years.” On July 7, 2017, LGI
transferred Tract A to the Association for the benefit of the
residents in Section 3.

Appellees and the other property owners were provided with
a homeowners’ disclosure notice and paid assessments to the
Association for varying amounts of time before Appellees ceased
payment. The Association used these assessments to fund
maintenance of the common areas. The Association maintained
the common areas for several years before it discovered in March
2020 that the 2001 Declaration does not encumber Section 3,
Phase V, and Tract A. In an attempt to correct LGI’s error, the
Association “prepared and filed” the Amended and Restated
Declaration of Covenants, Conditions and Restrictions of Sherman
Hills Homeowners Association, Inc. (the “Amended Declaration”)
in March 2020. The Association then asked all property owners in
Section 3 and Phase V to sign joinders acknowledging that their
lots are subject to the Amended Declaration and they are obligated
to pay assessments for common expenses. The majority of
homeowners signed the joinder agreements, but Appellees refused,

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“despite having been aware that they were purchasing homes
within a deed-restricted community” and despite benefiting from
the amenities maintained by the Association. Accordingly, the
Association sought a declaration that Appellees are subject to the
Association’s restrictive covenants and sought damages due to
Appellees’ continued use of Association property and common
areas without paying their fair share of assessments.

On September 6, 2023, after an in-chambers review of the
complaint, the trial court issued an Order and Notice of Intent to
Sua Sponte Dismiss Complaint (the “notice of intent to dismiss”),
asserting the Association failed to state causes of action for
declaratory relief and unjust enrichment. The court gave the
Association twenty days to file a response to the order, otherwise
it would dismiss the complaint with prejudice.

On September 26, the Association timely filed its response
to the order, requesting that the court permit the suit to move
forward on its merits, or alternatively, grant leave to amend the
complaint. Additionally, the Association addressed each of the
specific concerns raised by the trial court. The Association
attached its proposed amended complaint to its response,
clarifying the facts supporting its allegations. However, the
Association did not amend the allegations in its declaratory action
claim or unjust enrichment claims, as it explained in its response
to the court’s notice of intent to dismiss that it had asserted valid
causes of action. The Association subsequently filed a motion for
leave to amend its complaint in accordance with Florida Rule of
Civil Procedure 1.190. The Association attached the proposed
amended complaint, which included language from the governing
documents showing Appellees acknowledged the existence of the
Association. Once again, after an in-chambers review of the
Association’s responses and motion for leave to amend, the trial
court dismissed the complaint with prejudice, discharged the lis
pendens, and denied the motion for leave to amend. This appeal
followed.

In reviewing an order dismissing a complaint for failure to
state a cause of action, a de novo standard of review is applied. See
Ribaya v. Bd. of Trs. of City Pension Fund for Firefighters & Police
Officers in City of Tampa, 162 So. 3d 348, 352–53 (Fla. 2d DCA

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2015); Cape, LLC v. Och-Ziff Real Est. Acq. LP, 370 So. 3d 1010,
1014 (Fla. 5th DCA 2023). Beyond the legal sufficiency of a claim
for declaratory relief, a trial court has discretion to “dismiss an
action that technically states a cause of action when the
circumstances do not justify using legal resources to try the factual
issue and resolve the legal questions.” Ribaya, 162 So. 3d at 353.
An order denying a motion for leave to amend is also reviewed for
an abuse of discretion. See Saidi v. Saqr, 207 So. 3d 991, 992 (Fla.
5th DCA 2016).

The Association argues that in dismissing the complaint, the
court improperly went beyond the allegations of the complaint,
and, taking the factual allegations as true, it can be inferred from
the complaint that the lot owners and LGI intended for the lots to
be bound by the 2001 Declaration when purchasing the lots,
evidenced by the homeowners’ disclosure forms and purchase
agreements. We agree.

“The test of the sufficiency of a complaint in a declaratory
judgment action is not whether the complaint shows that the
plaintiff will succeed in getting a declaration of rights in
accordance with his theory and contention but whether he is
entitled to a declaration of rights at all.” Orange County v. Expedia,
Inc., 985 So. 2d 622, 624 (Fla. 5th DCA 2008) (quoting S. Riverwalk
Invs., LLC v. City of Fort Lauderdale, 934 So. 2d 620, 622 (Fla. 4th
DCA 2006)). In seeking declaratory relief, the plaintiff must show:

[T]here is bona fide, actual, present practical
need for declaration; that the declaration should
deal with present, ascertained or ascertainable
state of facts or present controversy as to a state
of facts; that some immunity, power, privilege or
right of complaining party is dependent on fact
or law applicable to facts; that there is some
person or persons who have, or reasonably may
have actual, present, adverse and antagonistic
interest in the subject matter, either in fact or
law; that the antagonistic and adverse interest
are all before the court by proper process or class
representation and that the relief sought is not

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merely giving of legal advice by the courts or the
answer to questions propounded from curiosity.

Palumbo v. Moore, 777 So. 2d 1177, 1178 (Fla. 5th DCA 2001). It
is unclear whether the trial court dismissed the complaint for
failure to state a cause of action or whether it was exercising its
gatekeeping function as “the circumstances do not justify using
legal resources to try the factual issue and resolve the legal
questions.” See Ribaya, 162 So. 3d at 353. In its order of dismissal,
the court explained that “[t]he allegations in the proposed
amended complaint do not rectify the legal insufficiency of [the
Association’s] initial complaint that the Court previously
addressed.” The court also explained that the Association failed to
establish that there was a bona fide dispute regarding a doubt as
to the rights of the parties under the Amended Declaration and
thus the court had no jurisdiction to issue declaratory relief.

We find that the court erred in dismissing the Association’s
complaint because it sufficiently pled a cause of action for
declaratory relief and established a bona fide dispute in need of
resolution. In addition to alleging the required elements for a
declaratory relief claim, the Association’s complaint and proposed
amended complaint alleged that it “is in doubt as to whether . . .
[Appellees] and their Properties are subject to the recently-
recorded Declaration,” which mirrored the 2001 Declaration,
considering all property owners were on notice that the properties
would be subject to restrictive covenants and HOA assessments,
and it needed the court to determine whether Appellees and other
property owners were subject to such Declaration so the parties
know how to proceed on current obligations such as payment of
assessments, use of the common areas, and compliance with the
Declaration.

The Association also argues that it adequately alleged all
necessary elements and material facts to support its unjust
enrichment claims. Unjust enrichment “is a legal fiction designed
to permit recovery by contractual remedy in those cases where
there is no contract.” Dooley v. Gary the Carpenter Constr., Inc.,
388 So. 3d 881, 883 (Fla. 3d DCA 2023). Recovery is warranted
under such claim “where it is deemed unjust for one party to have
received a benefit without having to pay compensation for it.” Id.

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(quoting 14th & Heinberg, LLC v. Terhaar & Cronley Gen.
Contractors, Inc., 43 So. 3d 877, 880 (Fla. 1st DCA 2010)). To
establish a claim for unjust enrichment, a plaintiff must establish
that (1) it conferred a benefit on the defendant, who has knowledge
of the benefit; (2) the defendant accepted and retained the
conferred benefit; and (3) under the circumstances, it would be
inequitable for the defendant to retain the benefit without paying
for it. See 14th & Heinberg, 43 So. 3d at 881.

The complaint here alleged the required elements for unjust
enrichment. Specifically, that the Association maintained, at its
expense, several common areas such as streetlights, drainage
retention areas, irrigation systems, the community clubhouse,
pool, tennis courts, parking areas, and insurance thereon for the
benefit of all property owners within the community; it currently
charges $138 per quarter in assessments to provide such
maintenance; Appellees were provided a homeowners’
association/community disclosure at the time they purchased their
property and were on notice of the requirement to pay
assessments, even paying assessments for a period of time;
Appellees benefited from the common areas and the Association’s
maintenance without paying their share of common expenses; and
such retention of the benefits conferred upon them by the
Association make it inequitable for them to continue retaining
such benefits without paying the value thereof.

Accordingly, the Association pled sufficient claims for
declaratory relief and unjust enrichment against Appellees, and
the trial court erred in dismissing the claims with prejudice. The
trial court’s order dismissing the complaint, discharging the lis
pendens and denying the Association’s motion for leave to amend
is reversed and this matter is remanded for further proceedings.

REVERSED and REMANDED.

EDWARDS, C.J., and SOUD, J., concur.

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_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10818768. Public record. Not legal advice.