LAWSUIT AGAINST FORMER BOARD MEMBERS

BOCA RIO TOWNHOME ASSOCIATION, INC. -- Boca Raton, FL

 Amended Law suit filed February 26, 2007

IN THE CIRCUIT COURT OF THE 15TH

JUDICIAL CIRCUIT IN AND FOR PALM

BEACH COUNTY , FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO: 502007CA002720XXXXM 

BOCA RIO TOWNHOME ASSOCIATION, INC.

A Florida not-for-profit corporation

PLAINTIFF,

V.

ALBERT MARSHAL A/K/A ALBERT MARSHALL A/K/A ALBERT S. MARSHAL, BETTY MARSHAL A/K/A BETTY MARSHALL A/K/A ELIZABETH B. MARSHAL and MIKE ADDESSI

DEFENDANTS

                                                                                      /

AMENDED COMPLAINT

FOR DAMAGES, AND IMPOSITION OF A CONSTRUCTIVE TRUST

AND OTHER EQUITABLE RELIEF

            The Plaintiff, BOCA RIO TOWNHOME ASSOCIATION, INC., a Florida non-profit Corporation, sues the Defendants, ALBERT MARSHAL A/K/A ALBERT MARSHALL A/K/A ALBERT S. MARSHAL (hereinafter “ALBERT MARSHAL”),  BETTY MARSHAL A/K/A BETTY MARSHALL A/K/A ELIZABETH B. MARSHAL  (hereinafter “BETTY MARSHAL”), MIKE ADDESSI and (hereinafter “ADDESSI”) and as grounds therefore, alleges the following:

1.                   This an action under §722.102 (1) et seq., and §722.103 of the Florida Statutes for damages in excess of $15,000 and comes within the jurisdiction of this court.  This is also an action for equitable relief within the jurisdiction of this court under Article V§20(c) (3) of the Florida Constitution.

THE PARTIES

2.            Plaintiff  BOCA RIO TOWNHOME ASSOCIATION, INC. (hereinafter “the ASSOCIATION”) is a Florida non-profit corporation representing the mutual interests of an association of private homes known as “Boca Rio Townhomes” located in the PALM BEACH COUNTY, FLORIDA and is subject to the provisions of Chapters 617 and 720 of the Florida Statutes.

3.            Defendant BETTY MARSHAL is a homeowner in the ASSOCIATION, was the President of the Association and a member of the Board of Directors at all relevant times, and is subject to the jurisdiction of this court.

4.            Defendant ALBERT MARSHAL is a homeowner in the ASSOCIATION and is subject to the jurisdiction of this court.

5.            Defendant ADDESSI resides in the ASSOCIATION, was Vice President of the Association and a member of the Board of Directors at all relevant times, and is subject to the jurisdiction of this court.

VENUE

6.            Venue is proper in this Court as the parties are residents and/or homeowners in Palm Beach County, Florida and the transactions that are the subject of this suit occurred in Palm Beach County, Florida.

GENERAL ALLEGATIONS

7.            BETTY MARSHAL and ALBERT MARSHAL own a townhome in Boca Rio at  8384 Trent Court, Unit D, Boca Raton, Florida 33433.

8.            BETTY MARSHAL and/or ALBERT MARSHAL also own a home at 920 W. Areba Avenue, Hershey, Pennsylvania, 17033-2201.

9.            The operations of the ASSOCIATION are governed and controlled by a Board of Directors (“the Board”).

10.        The powers of the Board and the manner in which it is constituted are specifically enumerated in the governing documents of the ASSOCIATION or in Florida Statutes. The governing documents are the ASSOCIATION’s Articles of Incorporation (“Articles”), Declaration of Restrictions (the“Decs”) and By-Laws, recorded on July 2, 1985 in O.R. Book 4587 Page 802.

11.        BETTY MARSHAL, and ADDESSI, as officers and directors of the Association, had fiduciary duties to the members served by the Association pursuant to §720.303(1) of the Florida Statutes. 

12.        Article IV, Section 4 of the Association’s Bylaws provides:

No Director shall receive compensation for any service he may render to the Association.  However, any Director may be reimbursed for his actual expenses incurred in the performance of his duties.

See Exhibit “A” attached hereto and made a part hereof.

13.        The By-Laws require all checks and promissory notes issued by the ASSOCIATION to require signatures of two Directors.  See Article VIII, Section 8 (a) and (d) of the By-Laws, attached hereto as Exhibit “B” and made a part hereof. 

14.        The Treasurer is required to sign checks, and to cause an annual audit of the Association’s books by a public accountant at the completion of the fiscal year, and shall prepare an annual budget and a statement of income and expenditures to be presented to the membership at its regular annual meeting, and deliver a copy of each to the members. See Article VIII, Section 8 (d) of the By-Laws, attached hereto as Exhibit “B.”.

15.        ASSOCIATION directors have staggered three-year terms, with a minimum of one director being elected each year, under Article VIII of the Articles.  See Exhibit “C” attached hereto and made a part hereof.

COUNT ONE– FRAUDULENT CONVEYANCE TO AVOID CREDITORS

16.        The Plaintiff reasserts, re-alleges and incorporates all other allegations contained in this Complaint as if fully set forth herein.

17.        By virtue of this complaint, PLAINTIFF is a creditor with a claim covered by Florida’s Uniform Fraudulent Transfer Act, §726.105 of the Florida Statutes;  BETTY MARSHAL and ALBERT MARSHAL are also debtors covered by the Uniform Fraudulent Transfer Act. 

18.        ALBERT MARSHAL is an insider covered by the Uniform Fraudulent Transfer Act.

19.        BETTY MARSHAL fraudulently conveyed her interest in her Pennsylvania property to ALBERT MARSHAL, who actively and knowingly participated in the fraudulent conveyance, as follows and under § 726.105 of the Florida Statutes.

20.        The totality of the circumstances in Paragraphs 19 a-h herein above evidence that BETTY MARSHAL and ALBERT MARSHAL intended the conveyance as a means to hinder, delay, defraud or avoid known creditors, specifically Plaintiff.

COUNT TWO– IMPOSITION OF CONSTRUCTIVE TRUST

21.        The Plaintiff reasserts, re-alleges and incorporates all other allegations contained in this Complaint as if fully set forth herein.

22.        BETTY MARSHAL, ALBERT MARSHAL and MIKE ADDESSI conspired and have misappropriated, converted and received the benefits of the Association’s funds in access of $610,070 as alleged in Paragraphs 17–20, supra.

23.        BETTY MARSHAL and ALBERT MARSHAL and MIKE ADDESSI have been unjustly enriched at the Plaintiff’s expense.

24.        Such funds where used directly or indirectly to pay real estate taxes, mortgages, finance insurance premiums, remodeling of homes and acquire personal property in the case of BETTY MARSHAL and ALBERT MARSHAL, as well as social activities including without limitation gambling.

25.        To render complete justice in this case, equity requires the imposition of a constructive trust for the benefit of the Plaintiff on the real property owned by BETTY MARSHAL and/or ALBERT MARSHAL subject to the interests of innocent third-party mortgagees, if any.

COUNT THREE – CIVIL CONSPIRACY

BY ADDESSI, BETTY MARSHAL AND ALBERT MARSHAL

APPOINTMENT OF DIRECTORS:

26.        The Plaintiff reasserts, re-alleges and incorporates all other allegations contained in this Complaint as if fully set forth herein.

27.        On or about December 17, 2003, BETTY MARSHAL and others assumed control of the Board of Directors, without holding an annual election.  In the carefully orchestrated December 17, 2003 board meeting, BETTY MARSHAL was appointed Director and elected to the position of President of the ASSOCIATION.  In addition, Directors, whose terms had expired, resigned and were re-appointed to additional terms, thereby circumventing the election process in violation of  §720.306 (2) and § 617.0809(2) of the Florida Statutes and Article III of the By-Laws, attached hereto as Exhibit “E” made a part hereof.  The sequence of events is as follows:

           a.         Director Steve Finehirsch turned the meeting over to Attorney Leigh Katzman,

who was requested to attend by BETTY MARSHAL; 

            b.         Finehirsch reported that Michael Broderick, Trident Management Company

(Trident) reported that Haspel resigned as President of the Board on December 16, 2003;

            c.         BETTY MARSHAL was appointed by the Board to a three year term as director

and was elected as President of the Board;

            d.         Directors Steven Finehirsch and Jim Natale tendered resignations and were

re-appointed to the Board for a term of three years.   Finehirsch was elected to the office of Vice President of the Board, and Natale was elected to the office of Treasurer; 

            e.         Attorney Katzman was retained by the Board as ASSOCIATION attorney.

28.        On or about May 5, 2004, ADDESSI was appointed to the Board to replace Finehirsch,  and ADDESSI was elected by the Board to the office of Vice President.  A copy of the minutes is attached hereto as Exhibit “G” and made a part hereof.

29.        The Board of Directors, under BETTY MARSHAL, never held an election during the entire time she was President of the ASSOCIATION, from December 17, 2003 through January 18, 2007, in violation of §720.306 (2) of the Florida Statutes, and Article III of the By-Laws.  See Exhibit “E.”  BETTY MARSHAL canceled every annual membership meeting, for lack of a quorum, and never rescheduled them.  All Director changes were effectuated through appointment during this time.  A copy of the minutes is attached hereto as Exhibit “H” and made a part hereof.

SECRET BOARD MEETINGS AND CONCEALMENT OF BOOKS AND RECORDS:

30.        On or about December 26, 2003, BETTY MARSHAL advised that all of the association’s books and records should be removed from Trident.

31.        On  or about January 3, 2004, BETTY MARSHAL stated in an email to Attorney Katzman that she and Richard Grossman would sign checks, rather than the Treasurer Jim Natale.  This was in violation of Article VIII, Section 8 (d) of the By-Laws, attached hereto as Exhibit “B”.   Upon information and belief, BETTY MARSHAL prevented Jim Natale from gaining access to the books and checks.  A copy of the Email to Katzman is attached hereto as Exhibit “I” and made a part hereof.

32.        On January 6, 2004, Betty Marshal advised the Board to approve, and the Board including ADDESSI did so approve, a 2004 budget and an increase in assessments from $150 to $165 per month, without holding a Board meeting, in violation of Fla. Stat. §720.303 (2).  A copy of the board vote is attached hereto as Exhibit “J” and made a part hereof.

33.        Upon information and belief, BETTY MARSHAL did not allow any person other than herself to open ASSOCIATION mail.    When she was out of town, BETTY MARSHAL forwarded ASSOCIATION mail to BETTY MARSHAL and/or ALBERT MARSHAL’s home in Hershey, Pennsylvania, in violation of Fla. Stat. §720.303 (5) which requires the records to be kept in the State of Florida.  A copy of an envelope addressed to Boca Rio Townhome Association and forwarded to “Boca Rio Townhomes Association, Inc” at 920 W. Areba Ave, Hershey, PA 17033-2201 is attached hereto as Exhibit “K” and made a  part hereof.

34.        BETTY MARSHAL refused access to the financial records in contravention of

membership’s rights (including the Treasurer) to inspect the financial records of the ASSOCIATION.  An example letter denying access to a homeowner is attached as Exhibit “L” hereto and made a part hereof.

35.        Upon information and belief, BETTY MARSHAL removed many of the ASSOCIATION’s records, including copies of canceled checks, bank statements, receipts, original ledgers and other items which are still missing from the clubhouse, and cannot be located.  The Board has had to obtain bank statements from the SunTrust Bank, at substantial cost to the ASSOCIATION, and still does not have canceled checks to determine to whom the checks were written.

ADDESSI, BETTY MARSHAL AND ALBERT MARSHAL CONSPIRACY:

36.        From November 14 through November 22, 2004, ADDESSI and BETTY MARSHAL conspired from to convert $11,500 in ASSOCIATION funds by writing to each other unauthorized checks shortly after Trident was terminated, in violation of the By-Laws and Florida law, and by logging them as “in appreciation”, “gift” and “special bonus” to misrepresent the checks as legitimate.  A copy of the handwritten ledger showing these logs is attached hereto as Exhibit “M” and made a part hereof.

37.        ADDESSI, BETTY MARSHAL and ALBERT MARSHAL conspired to convert ASSOCIATION funds in the form of cash withdrawals, and upon Plaintiff’s information and belief took the following steps in furtherance of the conspiracy:

            a.         ADDESSI and BETTY MARSHAL, in ultra vires acts, obtained two SunTrust

bank check cards on the Association’s checking account.   The SunTrust business records show that two check cards were obtained on December 14, 2004.  One check card check card was in the name of MIKE ADDESSI and one check card was in the name of BETTY MARSHAL.   A copy of the SunTrust Bank business records is attached hereto as Exhibit “N” and is made a part hereof.       

            b.         On January 11, 2005, ADDESSI and BETTY MARSHAL voted to strip Jim Natale of his position as Treasurer, stating that Natale had missed three Board meetings.  ADDESSI and BETTY MARSHAL then replaced Natale with Sean Williams, who has no formal training in accounting or business.  A copy of the meeting minutes is attached hereto as Exhibit “O” and made a part hereof.

            c.         Upon information and belief, at least BETTY MARSHAL and ALBERT

                        MARSHAL established online gambling accounts in their own names and in

                        Pseudonyms.

            d.         On September 21, 2004 and upon information and belief, Trident Management was fired without a board meeting and in breach of contract.

            e.         On February 22, 2005 BETTY MARSHAL evidenced an intent to defraud

                        and culpable and compensable mens rea, by recording without a Board or

                        ASSOCIATION membership vote a Certificate of Amendment to Article IV,

                        Section 4 of the By-Laws, to read:

A Director shall receive compensation for any service he or she may render to the Association if such compensation has been approved by the Board of Directors.  However, any Director may be reimbursed for his actual expenses incurred in the performance of his duties.  

The Certificate of Amendment was signed by “Betty Marshall as President and Jennifer Diaz as Secretary of Rio Townhome Association, Inc.”  Upon information and belief, Jennifer Diaz was the office secretary, and not the Corporate Secretary, and the Notary Public was her mother.  A copy of the amended By-Law is attached hereto as Exhibit “P” and made a part hereof.

38.        ADDESSI, BETTY MARSHAL  and ALBERT MARSHAL conspired to take, and did take, in excess of $610,070 of ASSOCIATION funds, in addition to amounts depleted from checking, as evidenced in Paragraphs 27-37 supra , Paragraphs 39-52 and Counts Four and Five infra and summarized as follows:

      a.         Checks written to BETTY MARSHAL                         $9,000

      b.         Check written to ADDESSI                                          $2,500

      c.         Unauthorized Petty Cash                                              $1,150

            d.         Unauthorized use of corporate check card                 $430,000

            e.         Depletion of Fencing Account                                      $102,223

            f.          Collection for non-existent management                     $65,197

These funds were taken without ASSOCIATION authorization and for unauthorized purpose(s).

39.        In early January, 2005, upon information and belief, pipes burst in the Hershey, Pennsylvania home owned by BETTY MARSHAL and/or ALBERT MARSHAL.  Thereafter, the  house was gutted and remodeled using ASSOCIATION funds directly or indirectly, including funds that were used to finance insurance premiums which covered claims for damages from burst pipes, and monies used for remodeling that was not covered by insurance.

40.        BETTY MARSHAL and ALBERT MARSHAL used a portion $610,070 taken from the ASSOCIATION to directly or indirectly  pay real estate taxes, insurance, mortgage payments and improvements to the homes owned by BETTY MARSHALL and/or ALBERT MARSHAL.  These homes include, but may not be limited to, those stated in Paragraph 7 (the townhome in Boca Raton, Florida) and Paragraph 8 (the house in Hershey, Pennsylvania) supra.

41.        On March 1, 2006 BETTY MARSHAL and ALBERT MARSHAL refinanced their home at Boca Rio North with a 30-year adjustable rate mortgage in the amount of $246,500.00. The proceeds of this mortgage paid off a mortgage with an approximate balance of $52,864.20, netting the Marshals’ approximately $193,635.80 and depleting that asset of all equity. Copies of these instruments are recorded in O. R. Book 16414, page 467; O.R. Book 20076, page 634 and O.R. Book 20124, page 1676 respectively in the Public Records of Palm Beach County, Florida.

42.        Boca Rio Homeowner Randy Gavitt began asking BETTY MARSHAL and Director Oscar Zamora pointed questions by email regarding the Association’s finances and records between November 30, 2006 and January 16, 2007.   On January 15, 2007, BETTY MARSHAL responded to Gavitt’s questions by email, stating: 

“We have not had homeowners overly concerned abut (sic) this process.  Occasionally a check disappears.”

Attached hereto as Exhibit “Q” and made a part hereof is a copy of this email correspondence from BETTY MARSHAL to Randy.  Also attached hereto as Exhibit “R” and made a part hereof is a copy of emails dated November 30, 2006 and January 2, 2007 between Randy Gavitt and Oscar Zamora regarding BETTY MARSHAL.

43.        During this time, Gavitt began leaving documents including the fraudulently filed By-Laws amendment at the ASSOCIATION Office to communicate his suspicions to Betty Marshal and others.   Gavitt also prevailed upon other ASSOCIATION Board members to press Betty Marshal on the issues of records and finances. 

44.        ADDESSI would not return any communications with the remaining Board members.  All other Board members, except ADDESSI, eventually did press Betty Marshal on the issues of records and finances.  An example of such email correspondence dated December 12, 2006 between Jim Natale and Oscar Zamora is attached hereto as Exhibit “S” and made a part hereof. 

45.        BETTY MARSHAL began planning her getaway in the middle of December 2006 as evidenced by a discussion of her availability for depositions in the lawsuit brought by Nations Fence, Inc against the ASSOCIATION.   BETTY MARSHAL told the insurance defense attorney that she was “available pretty much anytime, but that she was not going to run for President again and that she intended to sell her home and move out.” 

46.        On January 16, 2007, BETTY MARSHAL resigned by email to the Board of Directors.  A copy of the email from BETTY MARSHAL to Director Oscar Zamora dated January 16, 2007 is attached hereto as Exhibit “T” and made a part hereof.

47.        On January 18, 2007 the remaining Board members met in an emergency meeting and appointed new directors pursuant to Florida Statutes §617.0809, and until an election can be held.

48.        On January 19, 2007 the new Board obtained partial bank statements and discovered vast financial irregularities.   On the same night, the Board reported a possible crime to Deputy Goldweber of the Palm Beach County Sheriff’s office.

49.        Also on the night of January 19, 2007, Deputy Goldweber questioned BETTY MARSHAL and questioned her about her gambling activities and the ASSOCIATION’s corporate check card.

50.        On January 20, 2007, BETTY MARSHAL, ALBERT MARSHAL and BETTY MARSHAL’s daughter, Clarice Stewart, packed up and left the state for Hershey, Pennsylvania. 

51.        On January 25, 2007, BETTY MARSHAL further conspired with ALBERT MARSHAL by fraudulently transferring their Hershey, Pennsylvania property, for the purpose of avoiding liability for their acts.   BETTY MARSHAL conveyed her interest in this property to ALBERT MARSHAL via deed recorded in Dauphin County Pennsylvania public records as instrument number 20070004023.   The property has an approximate value of $250,000.00. The deed shows no payment of the applicable Pennsylvania transfer tax evidencing any consideration for this transfer.   

            This property is subject to an apparent open mortgage recorded in Book 1836, page 51 of the Dauphin County Pennsylvania public records and which, if not previously paid off, has an approximate balance of $4,709.29 with nine payments remaining due as of February 2007.   As of January 31, 2007, the property is also subject to a second mortgage to secure a principal amount not to exceed $20,100.00.  This mortgage was recorded on February 21, 2007 as Instrument  Number 20070007279 in the public records of Dauphin County, Pennsylvania.   Copies of both mortgages are attached hereto as Exhibit “AA” and made a part hereof.

52.        As co-conspirators, ADDESSI, BETTY MARSHAL, and ALBERT MARSHAL are jointly and severally liable for each act in this count and all other counts done in furtherance of the conspiracy.

COUNT FOUR –  CONVERSION BY ADDESSI AND BETTY MARSHAL

53.        The Plaintiff reasserts, re-alleges and incorporates all other allegations contained in this Complaint as if fully set forth herein.

54.        On November 22, 2004, ADDESSI converted to his own or his family’s use $2,500 of ASSOCIATION funds by accepting an unauthorized check for $2,500 that was drawn upon ASSOCIATION checking account, in violation of Article IV, Section 4  and Article VIII, Section 8 (a) and (d) of the By-Laws, attached hereto as Exhibits “A” and “B”.

55.        Upon information and belief, the check to ADDESSI drawn on ASSOCIATION funds was signed by BETTY MARSHAL.

56.        Upon information and belief, BETTY MARSHAL logged the check into a ledger, and labeled it “special bonus.”

57.        ADDESSI knew or should have known that the $2,500 check was unauthorized by the ASSOCIATION and in violation of Article IV, Section 4 of the Association’s Bylaws, as evidenced in Paragraph 54 supra.

58.        BETTY MARSHAL converted to her own or her family’s use a total of $9,000 of ASSOCIATION funds, from checks ADDESSI wrote to BETTY MARSHAL:

           a.         On or about November 14, 2004, BETTY MARSHAL accepted two checks for

$6,000 (each in the amount of $3,000) that were drawn upon ASSOCIATION funds;

            b.         On or about November 22, 2004, BETTY MARSHAL accepted another check for

$3,000 that was also drawn upon ASSOCIATION funds;

            c.         Upon information and belief, all three of these checks were signed by ADDESSI;

            d.         Upon information and belief, BETTY MARSHAL logged these checks in a

                        ledger, as “in appreciation” and “gift”.

A copy of the ledger showing these entries is attached hereto as Exhibit “M” and previously made a part hereof.

59.        ADDESSI and BETTY MARSHAL further converted to their own and their families’ use at least $1,150 in unauthorized ASSOCIATION checks BETTY MARSHAL logged as “petty cash”, on or about November 24, 2004 and May 22, 2006.

60.        Between January 14, 2005 and January 19, 2007, ADDESSI and BETTY MARSHAL converted to their own and families’ use in excess of $430,000 of ASSOCIATION funds, through cash withdrawals and other cash payments using the corporate bank card.   These funds had been collected from homeowners, for operations and maintenance of the ASSOCIATION.  The cash payments and withdrawals occurred at many locations, and for gambling and other purposes inconsistent with ASSOCIATION business, including but not limited to the following:

            a.         Coconut Creek and Hollywood Seminole Hard Rock Casinos in Florida;

            b.         Borgata Hotel Casino & Spa in Atlantic City, New Jersey;

            c.         Global Cas(ino) in Henderson, Nevada;

            d.         Online gambling or gambling services at various off-shore locations in

                        Great Britain, Korea, Philippines, Netherlands and Sweden;

            e.         Northwest Airline tickets and Hershey Chocolates in Hershey, Pennsylvania;

            f.          Spirit Airlines in Florida; Cheap Air Inc. in California; Continental

Airlines in Chicago, Illinois; Air Tran Airlines in Atlanta, Georgia;

            g.         Airport Sheraton Hotel in Ohio;

            h.         Various ATMS in Pennsylvania, Florida and Nevada;

            i.          Napster file sharing services, Sprint PCS; V Link Wireless and Adelphia 

                        Cable;

                        and other items not included in this list.

A sample of the SunTrust bank statements for the ASSOCIATION’s checking account is attached hereto as Exhibit “U” and made into a part hereof.

61.        From January 14, 2004 to January 17, 2007, ADDESSI and BETTY MARSHAL converted to their own and their families’ use at least $65,197 of ASSOCIATION funds that was budgeted and raised through special assessments for “management.”   ADDESSI and BETTY MARSHAL collected annual assessments for management in 2004, 2005 and 2006 budgets but never hired a manager, after Trident Management was fired on or about September 21, 2006.

62.        From February ADDESSI and BETTY MARSHAL depleted the Fencing account, and converted to their own and their families’ use in excess of $102,223 of the ASSOCIATION’s monies, that was intended and raised to pay for fence repair and replacement.   ADDESSI and BETTY MARSHAL collected a total of $365,238 (from annual and special assessments, and insurance proceeds), but only made payments of $239,140 to Nations Fence, Inc.  By December 31, 2006, only $9.04 was left in the Fence Account, and the fencing was and still is not complete.  The ASSOCIATION has been sued for $77,310 by Nations Fence, Inc. on or about August 15, 2006, for non-payment of $61,470 for work completed and the remainder in attorneys’ fees.  Accordingly the ASSOCIATION may be responsible for additional attorneys’ fees and costs as a result of the lawsuit.

63.        ADDESSI and BETTY MARSHAL further converted to their own and their families’ use  $16,351.35 of ASSOCIATION funds by collecting but failing to pay the December 2006 insurance premium.  Upon information and belief, these funds collected from homeowners were deposited in the ASSOCIATION’s checking account and withdrawn for purposes evidenced in Paragraph 60 supra.

64.        The use of at least $610,070 listed in Paragraphs 54-63 supra was inconsistent with ASSOCIATION business and the corporate charter, and violated the By-Laws.

COUNT FIVE -  FRAUDULENT MISREPRESENTATION

AND FRAUD IN THE INDUCEMENT BY BETTY MARSHALL

65.        The Plaintiff reasserts, re-alleges and incorporates all other allegations contained in this Complaint as if fully set forth herein.

66.        BETTY MARSHAL made material misrepresentations to the ASSOCIATION.  Her continuing course of conduct and pattern of deceit and deception evidences an intent to defraud and culpable and compensable mens rea, based upon information and belief, as evidenced in Paragraphs 67-68  infra.

67.        BETTY MARSHALL inflated the 2006-2007 insurance premium by $35, 654 for the months of September, October, November and December, 2006, as follows:

a.         On August 8, 2006, BETTY MARSHAL notified the ASSOCIATION

membership that the assessments would be raised effective September 2006, based on an increase in the insurance premium for 2006-2007 to $296,379;

b.         BETTY MARSHAL signed the 2006-2007 insurance premium on August 18,

2006, for the amount of $186,416.  A copy of the signed premium is attached herein as Exhibit “V” and made a part hereof;

c.         BETTY MARSHAL misrepresented the amount of the insurance premium in

the September 12, 2006 Board meeting by voting to “reaffirm” the need for an increase in assessments from $165 to $215 per month, based on the 2006-2007 insurance premium of $269,379 (a typo, where the amount clearly was intended to be $296,379).  A copy of the September 12, 2006 minutes is attached hereto as Exhibit “W” and made a part hereof;

            d.         No membership vote was taken at the September 12, 2006 Board meeting, before

                        the Board increased the assessments, in violation of Article V Section 4 (b) of the

Decs, attached hereto as Exhibit “X”     and made a part hereof;

e.         BETTY MARSHAL further misrepresented the 2006-2007 insurance premium by

her silence in the months of September, October, November and December, 2006, and by continuing to collect the $215 per month assessment from homeowners;

            f.          BETTY MARSHAL intended to induce and did induce the ASSOCIATION

members to pay a higher amount in assessments based on the $296,379 insurance premium, because BETTY MARSHAL signed the premium for $189,416 before the September 12, 2006 board meeting and before she collected homeowner assessments reflecting the higher premium.

68.        BETTY MARSHAL intended for the ASSOCIATION to rely on her misrepresentation of the insurance premium, because the increase of assessments were based on the increase in insurance premium.

69.        The ASSOCIATION justifiably relied upon the representations made by BETTY MARSHAL, who was a member of the Board of Directors and a corporate officer of the ASSOCIATION.

70.        As a result of these misrepresentations the Association suffered losses in excess of at least $35,654 that is believed to have been deposited into the ASSOCIATION checking account and later withdrawn as stated in Paragraph 60 supra. 

COUNT SIX– GROSS NEGLIGENCE BY ADDESSI

71.        The Plaintiff reasserts, reasserts, re-alleges and incorporates all other allegations contained in this Complaint as if fully set forth herein.

72.        ADDESSI had a legal duty as a fiduciary under Fla.Stat. §720.303(1) to comply with the ASSOCIATION’s governing documents and Florida law, and to protect the ASSOCIATION from the actions of other Board members who committed ultra vires acts, were negligent or misappropriated Association funds.

73.        ADDESSI breached his duty of care, causing serious and irreparable harm to the ASSOCIATION, by the following actions or inactions :

a.         Failing to review the ASSOCIATION books and records, including financial

statements, bank accounts and contracts for a period in excess of two years;

            b.         Failing to supervise Officers and Directors who caused monies to be depleted

from ASSOCIATION bank accounts, and from collected assessments, in violation of evidenced in Paragraphs 54-64 supra and Article VII Section 2 (b) of the By-Laws attached hereto as Exhibit “Y” and made a part hereof;

c.         Failing to supervise and acquiescing to the activities of Officers and Directors

who wrote BETTY MARSHALL checks in the amount of $9,000, in violation of

Article VII Section 2 (b) of the By-Laws and as evidenced in Paragraph 58 supra;

           d.         Accepting a check for $2500 as a “special bonus”, in violation of the  By-Laws

and without a Board resolution, and as stated in Paragraph 54 supra;

e.         Failing to supervise the Officers(s) and Director(s) who acquired and used

unauthorized Bank card(s) at casinos, on-line gambling websites , various ATMs and other locations in violation of Article VII Section 2 (b) and as stated in Paragraph 60 supra;

            f.          Failing to take action on the unauthorized use of the corporate bank card in the

                        over two years the Director(s)’ ultra vires acts were committed;

            g.         Failing to review the 2006-2007  insurance premium finance agreement signed by

BETTY MARSHAL, as stated in Paragraphs 66-69 supra;

            h.         Failing to discover and take action on the misrepresentation made by BETTY

MARSHAL to the ASSOCIATION members, regarding the 2006-2007 insurance premium in Paragraph 66-69 supra;

            i.          Failing to require a membership vote before levying special assessments, and increases in assessments, as evidenced in Paragraphs 32 and 67 (c) supra;

            j.          Failing to require a board meeting before voting on increased assessments as stated in Paragraph 32 supra.

74.        The standard of care exercised by a Director or Officer of the ASSOCIATION must be reasonable and prudent.  ADDESSI did not exercise such reasonableness and prudence, as evidenced by those actions and inactions stated in Paragraph 73 supra, and as evidenced by ADDESSI’s refusal to help the new Board in its investigation of the misappropriations. 

75.        A reasonable and prudent Director and Vice President of a Homeowner’s association would know or should know that the breach stated in Paragraph 73 supra would likely result in irreparable damage and considerable financial ruin.

76.        ADDESSI’s breaches of duty were a cause(s) in fact and a foreseeable cause(s) of the ASSOCIATION’s loss of in excess of $610,070.

77.        The ASSOCIATION has been damaged by the ADDESSI’s actions that have deprived the ASSOCIATION of the use of these monies and the earnings thereon, and has suffered severe and irreparable financial harm.

COUNT SEVEN – NEGLIGENCE BY ADDESSI

78.        The Plaintiff reasserts, re-alleges and incorporates all other allegations contained in this Complaint as if fully set forth herein.

79.        ADDESSI had a legal duty as a fiduciary of the Plaintiff to comply with the ASSOCIATION’s governing documents and Florida law, and to protect the Plaintiff from the actions of other Board members who were negligent or misappropriated Association funds.

80.        ADDESSI breached his duties as evidenced in Paragraph 73 supra.

81.        The standard of care exercised by a Director or Officer of the ASSOCIATION must be reasonable and prudent.  ADDESSI did not exercise such reasonableness and prudence, as evidenced by those actions and inactions as stated in Paragraph 73 supra, and as evidenced by ADDESSI’s failure to help the new Board investigate the thefts. 

82.        A reasonable and prudent Director and Officer of a Homeowner’s association would know or should know that the breach evidenced in Paragraph 73 supra would possibly result in irreparable damage and considerable financial ruin.