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COUNT
IX Fraud-CMW COMES NOW Plaintiff
Robert Aiello and realleges paragraphs 1 - 6, 31- 39 and 84 - 96 and would
further say: 105.
The original recorded Declaration, By Laws and Articles of Incorporation
provided an opportunity for existing unit owners to purchase other CMW units
upon notice of a potential sale, to exercise the option to purchase the for
sale 1.Ulit under like terms of the sale/purchase agreement.
106. Plaintiff AIELLO has an expertise in the acquisition of real estate and
developed a plan for the acquisition. rental, appreciation, and long term sale
with profits of the CMW units, and was unlawfully and improperly denied the
purchase opportunities provided by the originally 107. CMW attempted to amend its Declaration
at Article 9 by an amendment recorded on April 2, 1998, despite its knowledge that
it had not endeavored, nor obtained, unit owner mortgagee approval
as required for amendments per the original Declaration.
108. CMW's Directors and agents had a
fiduciary duty per F.S. §718.111 to be truthful, forthcoming, and to act in
good faith in matters pertaining to CMW with Plaintiff AIELLO, as well 109. CMW, through its Directors,
management, agents and legal counsel, as an act of fraudulent concealment, allowed the
amendment to be recorded, a part of the public record, so as to misrepresent to owners, as well as the
outside world, that the amendment to Article 9 was valid and constituted rights as well as
obligations of unit owners. 110. In addition, CMW was informed of the
invalidity of its amendment to Article 9 by its legal counsel, Lisa Woliner, an expert
in condominium law, on January 28, 1999, but despite this knowledge, CMW willfully continued to
represent to unit owners and the outside world that the amendment recorded on April 2, 1998 was
valid, thus deliberately concealing a significant fact from Plaintiff AIELLO and others. 111.
CMW's agents, when questioned about the validity of the 1998 amendment,
deliberately, willfully, and with deceit represented that the amendment was
valid, despite its specific knowledge and expert advise that it was invalid and
illegal. 112.
CMW not only represented that the amendment to Article 9 of the Declaration was
valid, it deliberately, willfully and fraudulently concealed its knowledge of
the invalidity of the amendment. 113.
CMW and its agents had knowledge from the outset of the invalidity of its
amendment to the Declaration at Article 9, but despite this knowledge, continued
for years, until this litigation, to represent its validity and to conceal from
many unit owners and the outside world the invalidity of the Article 9
amendment. 114.
CMW, despite its knowledge of the invalidity of Article 9, did not rescind its
recorded amendment and, as such, an invalid amendment was in the public records
for many years, having the effect of erroneously altering the restrictions and
opportunities Plaintiff AIELLO should have enjoyed in the utilization of his
property and the acquisition of other units. 115.
CMW willfully, fraudulently and knowingly concealed the fact that the amendment
to Article 9 was invalid from Plaintiff AIELLO ... 116.
As a direct result of the concealment and misrepresentation of CMW, and the
erroneous written, publicly recorded amendment of the Declaration, AIELLO was
deprived of the business opportunity to purchase Units 102, I 11, 110,
112,203,204,206,208,212,301,304,305, 308, and 310. 117.
As a direct result of the misrepresentation, knowing and fraudulent concealment
of the invalidity of the Article 9 amendment, Plaintiff AIELLO was induced and
relied upon the misrepresentation and concealment thereof, to his detriment and
financial injury, i.e. the inability to have accurate knowledge of the
opportunity to purchase Units 102, 111, 110, 112, 203, 204, 206, 208, 212, 301,
304, 305, 308 and 310. 118. In the past Plaintiff AIELLO had successfully developed and executed an economic model for real estate acquisition and, as such, the deliberate, willful, knowing and fraudulent concealment by CMW resulted in direct and personal financial loss, Le., a loss of real estate purchase, rental, and sale for profit after a suitable period of time; a situation not unlike what AIELLO proposed for CMW.
119. CMW and its management and agents had specific knowledge of the invalidity of Amendment 9, but deliberately and willfully concealed this information and continued to falsely represent its validity and to conceal the truth" from AIELLO, its owners, and the outside world. 120. CMW's active misrepresentation and active concealment caused injury to Plaintiff AIELLO who, because of the fraudulent concealment, was deprived of the opportunity to purchase, lease and in a timely fashion, sell Units 102, 111, 110, 112, 203, 204, 206, 208, 212, 301,304,305, 308, and 310, disrupting his business opportunity and causing a loss of rental income, appreciation, loss of profits upon sale, and lost interest upon said profits, all of which is continuing.
121. Plaintiff AIELLO, when serving on the Board of Directors and maintaining his home and business in Dallas, Texas, was intentionally and willfully deprived of the facts concerning the amendment to Article 9 of the Declaration and did not have knowledge of the invalidity of the amendment until September 20, 2004.
122.
On or about September 20, 2004, when AIELLO became aware of the erroneous
amendment, he notified the President, Judy Stem, who within days acknowledged
the notification, but refused to conduct a meeting of the Board to rescind the
amendment, or otherwise formally acknowledge the illegality of the amendment
until such time that AIELLO prevailed on the issue 123. On September 24, 2004, Judy Stem, as
President of ColoniaI Manor, upon receipt and in response to an email from AIELLO
regarding the improper amendment to Article 9, secretly and without the knowledge of the other Board of
Directors or unit owners, continued the cover-up and concealment and instructed the management
company to "build in $2,000 for legal fees to pay Lee Berg to rewrite our docs" (to Becker &
Poliakoff, legal counsel to the association and same law firm as Lisa Woliner), and stated "We want
to prohibit a unit owner from owning more than one unit and "clean up the issue dealing with the controversy of notification of the mortgagee". 124. Plaintiff AIELLO has had to retain
legal counsel and is entitled to recover attorney's fees and costs per the Declaration, F.S. §718.303 and F.S. §57.105. WHEREFORE Plaintiff Robert AIELLO demands
judgment for damages, interest, costs, attorney's fees, and trial by jury.
Plaintiff AIELLO reserves the right to seek to amend to assert a claim for punitive damages against CMW pursuant to F.S. §768.72. Respectfully submitted, __________________ Herman J. Russomanno F.
Blane Carneal
WE HEREBY CERTIFY that a true and correct copy of the foregoing was served by
U.S.
33310, John H. Richards, Esq., Cooney, Mattson, Lance, et al., P. O. Box 14546, Fort Lauderdale, FL 33302 and J. Stark, Esq., 524 S. Andrews Ave., #304N, Fort Lauderdale, FL 33301 this______day of ______________ , 2008.
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