In our previous Blog Post entitled “SOA Legal Complaint Against the SGCC”, SU summarized the Somersett Owners Association (SOA) Complaint (allegations) against the Somersett Golf and Country Club (SGCC) along with an accessible copy of the Court filing document. On July 10th 2010, the SGCC provided its legal response to the SOA’s allegations along with a Counterclaim. A complete copy of the SGCC’s legal filing may be accessed via the following link:
Response to SOA Complaint
The SGCC response addressed all 103 of the numbered paragraphs in the SOA Complaint, most of which were just boiler plate. With regard to the paragraphs of substance, the SGCC basically denied all of the SOA’s allegations (summarized in previous Post) and offered up the following “Affirmative Defenses” (edited and paraphrased, not direct quotes).
- The SOA failed to state a claim upon which relief can be granted.
- The SOA’s claims are barred by the doctrine of laches (i.e., unreasonable delay in filing the Complaint).
- By its actions, the SOA has waived its claims against the SGCC.
- Because of its actions, the SOA should be estopped (prohibited) from asserting its claims, including the destruction of evidence relevant to the SGCC’s defense.
- The SOA’s own actions contributed to and exceeded any alleged breach on the part of the SGCC and the SOA’s damages, if any, should be reduced or denied by reason of the SOA’s negligent acts and omissions.
- The SOA failed to mitigate its damages and any recovery should be offset by the amount the SOA could have mitigated such damage.
- The actions and conduct of the SOA and other unnamed third parties acted as an intervening and superseding cause of any damages the SOA may have suffered, thus eliminating liability on the part of the SGCC.
- Defendant has made payments to the SOA ($500/month during the Tolling Agreement period) the amount of which should offset any amounts due the SOA by reason of its Complaint.
- The SGCC has expended effort, time and money to repair a portion of the damaged area, the value of which should be offset against any amounts due to the SOA.
- Some of the SGCC’s efforts to comply with both the Lease and Water facilities Agreements were impractical, if not impossible – Force Majure (an unforeseeable circumstance that prevents someone from fulfilling a contract).
Based on the preceding, the SGCC is seeking the following Judgements from the Court:
- An order dismissing the SOA’s Complaint and directing that the SOA recover no damages whatsoever.
- An order determining the value of payments made to the SOA and work performed by the SGCC and offsetting this against any sums due to the SOA.
- An order awarding costs, attorney fees and such other relief as the Court deems proper.
The SGCC Counterclaim addressed the following Causes of Action ( edited and paraphrased, not direct quotes unless so indicated):
- Premises/Liability/Negligence – The SGCC contends that the SOA was aware there were problems with the Common Area above the SGCC’s leased property that constituted a dangerous condition and “failed to take appropriate measures to either discover the magnitude of the dangerous condition and/or make the condition safe and/or warn the SGCC of the condition and potential danger, all of which caused or contributed to the failure of the slope and rockery walls on the slope, a portion of which was upon SGCC’s property, and caused the SGCC to suffer those damages described herein.”
- Misrepresentation/Lease Agreement – The SGCC contends that had the “Association disclosed to the SGCC the issues with the adjoining area, the SGCC would not have entered into the Lease or would not have made the warranties concerning the property that it did”. Also “As a proximate result of the failure to disclose the defects in the adjoining area, The SGCC has been damaged in an amount potentially equal to the costs of repair of the entire slope, costs of repairs to its property, engineering fees, loss of business, and attorney’s fees and costs”
- Breach of Implied Covenant/Lease Agreement – More causes of actions based on the SOA’s wrongful conduct in not disclosing facts associated with the Common Area property adjacent to the SGCC leased property.
- Breach of Tolling Agreement – An allegation that the SOA has refused to acknowledge that the SGCC is to be given credit for the $500/month payments made to the SOA under the Tolling Agreement or to return these payments to the SGCC.
- Quantum Meruit – An allegation that the SOA has become indebted to, and refuses to pay, the SGCC for materials and labor expended as a result of damage to its property caused by work performed by the SOA on the adjacent Common Area property.
In its Counterclaim, the SGCC is seeking the following judgements (direct quotes).
- For damages equal to the value of the materials and labor expended to repair its Property as a result of the Association’s acts and/or omissions.
- For amounts paid to the Association pursuant to the parties’ Tolling Agreement.
- For loss of profits to the SGCC’s business as a result of the Association’s negligent maintenance of its property.
- For reformation of the Lease Agreement relieving SGCC of its warranty obligations based upon the misrepresentations of the Association.
- For reasonable attorney’s fees and costs incurred by the SGCC in prosecuting this Counterclaim, and
- For such other and further relief as the court deems just and appropriate under the circumstances.
The SOA has until July 31st to respond to the SGCC’s Counterclaim. When filed, SU will post on this website.
In January of this year an Executive Committee was formed (Consisting of Board members Fitzgerald, Baker and Hanson) whose purpose was to meet with representatives of the SGCC and negotiate a settlement on which party was responsible for which portion of the Rockery Wall repair costs and how the SGCC would reimburse the SOA for its agreed upon portion. The Committee was to publish meeting minutes and to regularly report to the Board at Board meetings. Therefore, the question is; did any of these meetings ever take place and if so, what were the results? If held, one would have to assume that they were unsuccessful and hence the filing of the Complaint by the SOA on June 5th. Perhaps the COVID-19 restrictions came into play here, but this does not excuse the Board from notifying Association members as to the filing of the Complaint, as the legal fees are likely to be significant. So much for transparency. However, if a notification was made and SU missed it – Our sincere apologies.