The Problem with Perry

Old adage: Never sign a contract that it takes a lawyer to explain.

Forget the half truth about the 2010 membership meeting where the developer, posing as a member,  illegally voted 800 times to extend the restrictive covenants.  That point can’t be made because no one had an extra $100,000 to sue the Diamondhead Country Club and Property Owners Association over the obvious irregularities in such a deception, at least before the time to do so lapsed in 2013.  All part of the plan implemented by then DHCC&POA president Mario Feola that knew no one would or could challenge the first phase of the extreme long shot planned by Lloyd Ramirez and himself.  Both ignored the advice of attorney Paul Newton that this attempt to extend the covenants via amending the nonprofit corporation’s bylaws would be a “Hail Mary” at best.  From the lyrics of Simon and Garfunkel, an exposure of the engine of this folly dwells: “ …a man hears what he wants to hear and disregards the rest…”

Ignore the part of the filing for declaratory judgement by attorney Rick Tubertini  where on one page is asserted that the operations of the DHCC&POA were like a team of Clydesdales, strong, healthy and vibrant, but on subsequent pages admitted that the operations needed the infusion of property owners dues (large amounts) to maintain an ever increasing list of amenities.  More like a herd of drunken Shetland ponies ailing from malnutrition. Pay no attention to the $80,000 cost to stop a duly called forensic audit that gave way to a brand new accounting method hiding overhead expenses.  And try not to be insulted by the ridiculous pie charts that make no sense what so ever. None of this will be challenged in court and there is no need. Just smoke and mirrors, mudding the waters and sleight of hand.

Despite the anonymous sycophancy on the front page of the December issue of their printed corporate newsletter, The Diamondhead News (not to be confused with the publication you  are now reading),  to understand the core of the legal conflict, you do not have to be an attorney, a paralegal or even a Baptist Minister.  Overlook the appearance of impropriety the was ignored by printing the biography of the newly appointed judge

All that is necessary is to remember a game you played or had your children play via Sesame Street. It had a song that went something like this:  “One of these things is not like the other…”.  The board of directors of the Diamondhead Country Club and Property Owners, through their attorney, argues they have the right to extend the restrictive covenants because of a ruling issued by the Mississippi Supreme Court in 1986, Perry vs. Bridgetown.  Their assertion is that since Bridgetown added their covenants to their bylaws, they can do it too.  Just one problem. The covenants are totally and completely different.  One is automatically renewed every ten years, the other, guess which one, has a definitive, absolute, without question termination date that cannot be changed without the consent, not of the members of the Diamondhead Country Club and Property Owners Association (even the canard of 82%), but with the consent , not a vote but  THE CONSENT of 85% (eighty-five percent) of owners of properties in Phase 1 of the development.

 

From Perry v Bridgetown:

These covenants are to run with the land and shall be binding on all parties and persons claiming under them for a period of thirty (30) years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive ten (10) year periods unless an instrument signed by the owner or owners of the majority of the above described lots has been recorded in the public records agreeing to amend, modify or revoke said covenants in whole or in part.

Reference: http://diamondheadnews.com/perry-v-bridgetown-community-assn-inc/

 

From the Diamondhead Restrictive Covenants on file in Hancock County Courthouse:

TERM

All of the provisions, restrictions, conditions, easements, covenants, agreements, liens and charges, set forth herein shall affect each and all of the above-described lots delineated on said map, shall run with the land and shall exist and be binding upon all parties and all person claiming under them for a period of fifty (50) years from the date or recordation hereof, unless sooner annulled, amended or modified pursuant to the provisions of Article XXI hereof.

ARTICLE XXII

Any or all of the provisions of these restriction, conditions, easements, covenants, liens and charges may be annulled, amended of modified at any time by the consent of the owner or owners of record of eighty-five percent (85%) of the lots in Diamondhead, Phase 1.

Reference: http://diamondheadnews.com/master-covenants-of-diamondhead-development/

Obviously, there is no relevance between Perry vs. Bridgetown and  the request for a declaratory judgment to validate extending Diamondhead’s restrictive covenants.  The Mississippi Supreme Court never heard in Perry vs, Bridgetown any arguments to extend covenants past their expiration date because there was no expiration date of the covenants in that case. No one asked to extend Bridgetown’s covenants.  It wasn’t necessary.  Bridgetown’ covenants never expire.  Perry vs Bridgetown has absolutely nothing in common with Diamondhead’s request except it involves real estate. Bridgetown has no golf courses, no tennis courts, no country club, no Bocci Ball, no youth tackle football;  Bridgetown has a lake.

Then there is the concept of contracts and parties and custodians, etc. But those can confuse. Old adage: Never sign a contract that it takes a lawyer to explain.

The Mississippi Supreme Court should consider saving the taxpayer’s money the next time the four chancellors on the Gulf Coast refuse to do their jobs and make a decision concerning Diamondhead and simply appoint an eight-year-old that watches Big Bird, Oscar the Grouch, Burt and Ernie.  The Diamondhead Country Club and Property Owners Association would be better off if they elected more board members who question attorneys about the real chances of success and demand a refund of all of their fees if their legal action fails.

 

About the Author

T. R. Alfonso
Editor and Publisher of the the Diamondhead News Online
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