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Judge sides with Unicorp in Colony case Round One

STEVE REID
Editor & Publisher
sreid@lbknews.com

Sarasota Circuit Judge Hunter Carroll agreed with Unicorp and allowed its motion to terminate the Colony Beach & Tennis Resort Association and proposal to consolidate the ownership to move forward.

Carroll denied the request by Andy Adams, who owns about 25 percent of the original Colony units, to dismiss Unicorp’s plan.

The Judge told the opposing parties to discuss if they agree that the Condominium Association, which represents the Unit Owners’ interests, should be terminated. He wants them to convey whether they agree and if not, what action should take place at a scheduled hearing at 8 a.m. on Feb. 7.

The court case, which began with a hearing last Thursday, was filed by Unicorp in its effort to consolidate ownership as a condition of approval in order to receive a building permit for a planned St. Regis Hotel and Condominium at the 18-acre site.

Sarasota attorney Dan Lobeck opposed Unicorp in the courtroom and opened by saying that the developer had failed to attain the requisite approval to terminate the condominium, which is a vote of more than 75 percent of the unit owners.

“He (Unicorp President Chuck Whittall) has provided insufficient inducements and is now attempting to achieve the same outcome by using a different state statute,” said Lobeck.

Lobeck asked the Judge to dismiss Unicorp’s complaint and allow Whittall to come back and request that all of the Colony units go out to market and be sold to the highest bidder.

“Unicorp would like Your Honor to provide carte blanche ownership of this property. They need to offer more inducements, pick up some more units or put it up for a partition sale. You can’t ask for relief and make an end run around the requirements,” argued Lobeck.

After Lobeck and the attorney for Adams spoke, the Judge asked what the harm is in the Plaintiff (Unicorp) stating what kind of equitable relief they want. The Judge then said the law in his view allows him to consider or implement Unicorp’s remedy or any other remedy that would seem more equitable. But the Judge made it clear that he is not bound to follow Unicorp’s proposal nor is constrained or confined to dismiss it.

The attorney for Adams said that Unicorp was asking for a remedy that was not recognized by law. The Judge countered by rhetorically asking, “Is the court bound to their plan and remedy or does it have the full panoply of remedies?” asked Judge Carroll.

The attorney for Unicorp told the Judge that there was a part of the Colony property – the three acres of commercial property that Unicorp owns outright – that is not part of the jurisdiction of the court and that the situation was not as simple as if auctioning off an empty tract of land. She said there were questions and considerations if the property could be developed without the commercial interest.

The Judge replied that, “This is a weird procedure. I want to understand what you want, but everyone wants a fair procedure.”

The attorney for the Colony Association of Unit Owners, Jeffrey Warren, said that many of the unit owners are over 65 years of age and he urged the court to move expeditiously. He explained that there are a total of 237 tourism units and seven other units at the Colony for a total of 244. He said there were four other parcels at the Colony that Unicorp owned 100 percent of and they amounted to “separate donut holes” in the overall site and include the former land occupied by the Colony swimming pool, tennis courts and both sides of the entrance to the site.

Warren then told the Judge that Andy Adams early in the process when the Colony first closed, obtained enough units to block a supermajority. He asked the Judge to deny the motions made by the attorneys for Adams and three other associated parties and put the case on a fast track for resolution.

In rebuttal to Warren, one attorney said that Unicorp and their attorneys are “going to squeal like a scalded dog when we get to the end of this.”

Lobeck said Unicorp was not only trying to control the process, but the outcome and was not giving the property to the highest and best bidder.

After this, Judge Carroll said he was going to deny each and every motion to dismiss and strike in their entirety.

The Judge said he did not read anything in the law that said the court is bound to a particular remedy such as an auction or Whittall’s plan. Essentially, the Judge maintained that he can adjust Unicorp’s remedy, adopt it, or find any superior remedy more equitable.

“I don’t think a motion to strike is befitting at this point and time,” said Judge Carroll.

The Judge then gave the attorneys 15 days to respond to the decision and set an expedited schedule to hold a hearing on the first Thursday of each month going forward at 8 a.m.

In closing, the Judge wants the opposing attorneys to discuss if they agree or not to termination of the Colony Association and to comment on the issue prior to the Feb. 7 hearing. He added that if the sides agree to terminate the Colony Condominium Association, what is their plan for discovery, depositions and how the matter should proceed.

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