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January 29, 2004
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Case No: 03-18902 CACE 12 - Avalon Master v Jones & Minters
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Florida
Other Court
County of Broward
Branch: 17th Judicial Circuit
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Avalon Master Homeowner Association
Inc.
Represented by: J. Steven Hudson, Florida Bar # 302639
v.
James A. Jones and Christopher Minters
Represented by: James A. Jones, Esquire (pro se but in need of representation)
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Summary
The Avalon Board sued two directors due to a longstanding dispute as to Board membership. In August of 2002, 2 directors of a then, 3 director Board, appointed 4 directors at a Board meeting to complete its slate of 7. Defendant raised several objections.
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Causes of Action: 1. Temporary and Permanent Injunction
2. Declaratory Relief Regarding Membership of Board of Directors
3. Attorneys Fees
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Citation: 03-18902 CACE12 |
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Judge: The Honorable Dorian Damoorgian
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Lawsuit Text
BACKGROUND:
The Avalon Board sued two directors due to a longstanding dispute as to Board membership. In August of 2002, 2 directors of a then, 3 director Board, appointed 4 directors at a Board meeting to complete its slate of 7. Defendant raised several objections then. These included a) no agenda was published, b) no officers (all officers had resigned) were seated to call any meeting c) the remaining director received no notice of meeting agenda d) no homeowners were allowed to participate or nominate any candidates and most importantly, e) the Board failed to identify which of the 4 appointments were appointed to fill 2-year vacancies, and which were appointed to fill 1-year vacancies (of the 4 vacancies, 2 were for 2 yr. terms and 2 for 1-yr terms). At a February 2003 Annual Meeting and Election, this issue still was not resolved by the Board. The President, however months later declared that his two most consistent supporters of the 4 appointments were to remain serving 2-year terms. No association records or meetings reflected this determination prior to the Feb. 2003 election.
At a March 13, 2003, Board meeting, the newly composed Board voted to have the attorney take "any means appropriate and necessary to remove 3 inactive board members" (which include the 2 directors unilaterally declared to 2-yer terms by the President). See minutes at www.amhoa.com.
As a result, the association attorney filed an advisory opinion in April 2003, advising that the 2 seats in question had expired in February 2003, due to the order in which they were appointed back in August 2002. Hence, no further action from the Board was necessary.
In September 2003, one of the new directors agreed in secret with another director and the 2 appointed directors whose terms the attorney had determined had expired, to take over the association. To do this, the two directors would resurrect the 2 expired directors onto the Board, giving them a majority 4 of the 7 directors. They would then vote the sitting President out of office and control the association.
A week after this attempt, the Board met with its attorney who advised that the effort to remove the President had failed because the meeting had used the votes and membership of two directors who were no longer directors. The Sept. 9, 2003 meeting also lacked the required 3 day notice. The attorney issued a written opinion to this effect. At this meeting with the attorney, the take-over directors presented alleged "amended" minutes from the Aug. 2002 meeting, never before seen or referenced by anyone, which reflected that the 2 directors in question were appointed for 2-year terms. Prior to this time, such amended minutes had never appeared anywhere in the association records or history. The former President who helped make the Aug. 2002 appointments, claims that the minutes were "found" in his garage, now more than a year later. The attorney and minority board members found these "found" amended minutes to be a sham.
In October 2003, prior to the start of a Special Budget Meeting, called for the sole purpose of establishing a budget, and setting forth the next meeting as the Annual Meeting and Election, these 4 directors appeared with 3 unknown men, who identified themselves as the new attorney and property managment firms for the Board. The President called the police to have them removed and did not call the meeting to order. Association documents require the President to preside as Chair over meetings. However, the 4 take-over directors called their own meeting to order and proceeded through passing several motions without any discussion, including then firing the attorney and managment company who represented the association prior to the budget meeting take-over. The President and remaining two directors objected to the process, but without avail.
Later it became known that the take-over directors had one day prior to the budget meeting withdrawn $75,000.00 from association accounts in an apparent attempt to use the money to facilitate their take-over attempt. The now minority board members and attorney then managed to stop payment on the $75,000.00 check and the bank froze the account due to the internal dispute on the Board.
One week later, the association filed the present lawsuit against the President and another director who had been duly appointed in July 2003, to enjoin each from failing to recognize the 2 now resurrected takeover directors from the Aug. 2002 appointments, to enjoin the President from acting as President, and to Declare the makeup of the Board to include the two resurrected directors, but excluded the July 2003 appointed director. They also requested attorneys fees. No Board meeting or minutes ever discussed or authorized the present law suit (which required 3/4 vote of the unit owners).
The suit alleges that the former attorney was terminated at the October 16, 2003 meeting, but billings from the new attorney who filed the suit indicate that the firm met with and acted as the association's lawyer dating back to October 9, 2003.
At an October 30, 2003, hearing on the association's injunction, both firms appeared and announced themselves as the association's attorney. The court refused to address which lawyers truly represented the board. The court denied their request to enjoin the defendant from acting as President, and orally affirmed that the defendant remained President. However, he granted the temporary injunction requesting that the 2 resurrected directors are to be considered directors. No explanation was given for this decision. The court refused to address arguments that the association had no authority to file the suit and that it was represented by an attorney who had been hired in secret by conspiring directors outside the scope of a board meeting. Still, the Court advised the association to "accelerate" its annual members meeting and election as soon as possible. To date, the association board refuses to set a date for the election meeting. From October 16, 2003, to date, the take-over "President" has held himself out as the association President. The management company and board have canvassed the community with propaganda stating that the Court confirmed that the take-over President was indeed the President,clearly in contravention to the Court's findings.
The case has a hearing scheduled for tomorrow at 8:45 AM on the association's motion to dismiss the defendant's defenses and counterclaims. The defendant director, although an attorney, needs legal representation.. He seeks to have the complaint dismissed, to have the board to set the annual meeting and election (now 28 days late), and to have the board otherwise abide by its governing documents. The defendant director has offered to drop all defenses and counterclaims and recognize the two resurrected Aug 2002 appointed directors if the association immediately organizes the annual meeting and election, and drop its claims. Thus far, the association refuses.
All minority directors have also agreed in writing, and at the October 30, 2003 hearing to the Court to have all 7 directors resign, and allow the homeowners elect a complete slate of 7 directors at the annual meeting to clear up any past questions as to board membership. Even current directors could run and the association's take-over attorneys could oversee the election along with the association's outsted attorney. The takeover directors refused.
There are countless issues regarding how the association came to be in this position after the developer governed it from 1995 to 2002, and efforts made or the lack thereof by the developer up to 2002 to ease the transition to unit owner governance. The most pressing issues now are the lawsuits and annual meetings.
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