Condo Owner sues Colonial Manor West

IN THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. 04-19092 (13)

ROBERT AIELLO,

Plaintiff,

JUDITH STERN, COLONIAL MANOR

WEST APARTMENTS CONDOMINIUM
ASSOCIATION, INC., AND SUNRAE

MANAGEMENT SERVICES, INC.

Defendants.

FOURTH AMENDED COMPLAINT

Plaintiff, ROBERT AIELLO, sues Defendants, JUDITH STERN, COLONIAL MANOR WEST APARTMENTS CONDOMINIUM ASSOCIATION, INC. and SUNRAE MANAGEMENT SERVICES, INC., and alleges that:

GENERAL ALLEGATIONS

1. This is an action for damages in excess of $15,000.00, exclusive of interest, costs and attorneys’ fees.

2. Plaintiff, ROBERT AIELLO ("AIELLO"), is an individual, a resident of Dallas, Texas and is sui juris. MR. AIELLO owns four condominium units – Unit Numbers 103, 109, 303 and 309 – of the Colonial Manor West Condominium Apartments (“Colonial Manor West”) in Broward County, Florida.

3. Defendant, COLONIAL MANOR WEST APARTMENTS CONDOMINIUM ASSOCIATION, INC. ("CMW ASSOCIATION"), is a Florida not-for-profit corporation operating the Colonial Manor West Condominium Apartments located at 2424 N.E. 9th Street, 3rd Amended Complaint CASE NO. 04-19092 (13) 2 Fort Lauderdale, Broward County, Florida. The CMW ASSOCIATION is a condominium association governed by Chapter 718, Florida Statutes, and its lawfully adopted Declaration, By Laws and Articles of Incorporation at OR Book 4100, Pg. 964. AIELLO, as the owner of four (4) condominium units in Colonial Manor West, is a member of the CMW ASSOCIATION.

4. Defendant, SUNRAE MANAGEMENT SERVICES, INC. ("SUNRAE MANAGEMENT"), is a Florida corporation engaging in the property and community association management business in Broward County, Florida from its office located at 7071West Commercial Boulevard, Suite 2B, Tamarac, Florida 33319.

5. At all times material hereto, the CMW ASSOCIATION contracted with SUNRAE MANAGEMENT to provide condominium management services pursuant to, inter alia, §§ 718.111 & 718.3025, Florida Statutes.

6. Venue is proper in Broward County, Florida, in that: (a) Defendants are corporations doing business in and having agents or other representatives in Broward County, Florida; and/or (b) the property that is the subject matter of this action is located in Broward County, Florida; and/or (c) Defendants' actions that gave rise to this action took place in Broward County, Florida.

COUNT I

FAILURE TO COMPLY WITH § 718.111(12), FLORIDA STATUTES

(vs. CMW Association and Sunrae Management)

7. AIELLO realleges and reavers the allegations set forth in paragraphs 1 through 6 above as though fully set forth herein.

8. On October 7, 2004, AIELLO, through his Texas counsel, Dee W. Dilts, first requested that the CMW ASSOCIATION provide copies of documents relating to the operations of the association including, but not limited to, association minutes, notices, and documents relating to potential condominium assessments. See letter from Dilts to Lee Burg, Esq., attorney for the CMW ASSOCIATION, attached hereto as Exhibit "A". The CMW ASSOCIATION completely ignored Dilts’ letter and failed to produce any documents.

9. After this initial request, AIELLO retained Florida counsel who communicated AIELLO's concerns about the association's operations (some of which are a subject matter of this lawsuit) and again requested specified documents. See letter from Richard W. Epstein, Esq. to the CMW ASSOCIATION, Board of Directors, dated October 26, 2004, attached hereto as Exhibit "B". CMW ASSOCIATION did not reply to this letter or produce any documents.

10. On November 17, 2004, AIELLO made a third, formal, request, through counsel, to the CMW ASSOCIATION, for the inspection of CMW ASSOCIATION’s “Official Records” pursuant to § 718.111(12), Florida Statutes. A copy of this request is attached hereto as Exhibit "C". The CMW ASSOCIATION, through its counsel, did respond to this request. At the CMW ASSOCIATION’s request, the inspection of the CMW ASSOCIATION’s Official Records was rescheduled from November 30, 2004 to December 2, 2004.

11. On December 1, 2004, the day before the inspection of records, SUNRAE MANAGEMENT, the CMW ASSOCIATION’s management company, and, according to the CMW ASSOCIATION, the custodian of all of the CMW ASSOCIATION’s Official Records, wrote AIELLO’s counsel – AIELLO’s designated representative for the inspection of records – imposing conditions and limitations upon the inspection not warranted by § 718.111(12), Florida Statutes. See letter from Karen Busch dated November 30, 2004, attached hereto as Exhibit “D”. This letter necessitated AIELLO’s response, attached hereto as Exhibit “E”.

12. On December 2, 2004, AIELLO's authorized representative, Robby Birnbaum, appeared at SUNRAE MANAGEMENT’s offices at 9:57 a.m. The receptionist requested that Birnbaum wait in SUNRAE MANAGEMENT’s front entranceway area while the Manager, Scott Busch, was summoned.

13. Directly in front of SUNRAE MANAGEMENT’s entryway, and across from the reception desk, was a staircase leading to an upper floor office or loft area. Three minutes after Birnbaum's arrival, Busch came down the stairs, identified himself as the Manager/Operator of SUNRAE MANAGEMENT, and proclaimed to Birnbaum that the inspection was "illegal," "unlawful," and that Birnbaum "did not have a right to come into their business to inspect any documents." Birnbaum responded that he intended no disruption of SUNRAE MANAGEMENT’s business operations, was there at the instruction of AIELLO to conduct a lawful inspection, and would fully cooperate with SUNRAE MANAGEMENT to facilitate the review the documents. Busch complained that he and/or other employees of SUNRAE MANAGEMENT had stayed up all night "printing" documents for the inspection. Busch warned Birnbaum that he would not be allowed to stay more than a minute past noon because his office was busy and they did not appreciate having an attorney come over for a document inspection.

14. Busch then pointed Birnbaum to four (4) banker's boxes located underneath the stairwell near the main entry door of the office. Birnbaum asked Busch if there was any location Busch preferred Birnbaum use to inspect the documents; Busch did not respond. Birnbaum asked Busch if he would like the inspection to take place in a conference room or office, away from the main lobby; Busch did not respond. Rather, he motioned Birnbaum toward the boxes. The boxes were on the floor near where SUNRAE MANAGEMENT stored its copy paper. There was a copy machine in front of the four (4) boxes. As no more appropriate alternative was provided, Birnbaum sat down on the floor under the stairwell and began the inspection. Birnbaum had a legal size notepad with a brown-craft file folder containing his notes for the inspection, and a hand-held dictating device.

15. Within five minutes of Birnbaum being seated, Busch returned and repeated that the inspection was unlawful and a disruption to his office. Birnbaum replied that he was not aware of the details of the case, but was simply there to inspect the documents. Busch retreated up the staircase, apparently to his office, but two minutes later, a large man, approximately 6'1" tall, weighing approximately 300 pounds, approached Birnbaum and began looking over Birnbaum's shoulder while he was sitting, cross-legged, on the floor under the staircase reviewing documents. This unidentified individual paced back and forth near Birnbaum, at times his legs coming within six inches of where Birnbaum was seated, peering over Birnbaum's shoulder and into Birnbaum’s folder containing attorney-client privileged notes. This continued for approximately ten minutes, until the man left the office. While Birnbaum was reviewing the documents and dictating his notes, Birnbaum dictated a note relating to the man who had been lurking. During this entire time, Birnbaum remained seated on the floor in front of the boxes under the staircase.

16. Apparently, the receptionist overheard this dictation and reported it to Busch. Busch stormed down the staircase accusing Birnbaum of "spying" on his employees. He repeated that he was uncomfortable with the document inspection and that he was calling the police. Busch instructed the receptionist to call the Broward County Sheriff's Office. While remaining seated on the floor, Birnbaum explained to Busch that he used the dictating device to take notes on the document inspection, that he was not spying, and that he had been seated on the floor under the staircase inspecting the documents the entire time. Busch accused Birnbaum of “using the tape recorder to spy on the office."

17. Birnbaum continued the document inspection while Busch berated him. At 10:32 a.m., while Birnbaum remained seated on the floor, now inspecting the second box of documents, Broward Sheriff's Deputy Colantuno entered SUNRAE MANAGEMENT’s officer through its main door. Busch immediately took Deputy Colantuno outside to speak with him. Birnbaum continued the document inspection. Approximately three minutes later, Deputy Colantuno and Busch returned. Deputy Colantuno stated that SUNRAE MANAGEMENT and Busch were uncomfortable with Birnbaum conducting the document inspection and that Busch requested that Birnbaum leave the property. Birnbaum cooperated and proceeded to leave the property. He closed the boxes, returned them to their original locations under the staircase, packed up his bag and left. On Birnbaum's way out of the office, Busch reiterated that the document inspection was not permitted and that this event had disrupted his office. Birnbaum left all documents behind, as instructed by SUNRAE MANAGEMENT. No documents were photocopied.

18. Pursuant to § 718.111(12), Florida Statutes, AIELLO is entitled to inspect and photocopy the Official Records of the CMW ASSOCIATION. SUNRAE MANAGEMENT, as the CMW ASSOCIATION's contracted management company, was the custodian of these records and was required to make these records available pursuant to § 718.111(12), Florida Statutes. SUNRAE MANAGEMENT refused to make such records available, in willful violation of §718.111(12)(c), which states: The official records of the association are open to inspection by any association member or the authorized representative of such member at all reasonable times. The right to inspect the records includes the right to make or obtain copies, at reasonable expense, if any, of the association member. The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. The failure of an association to provide the records within 10 working days after receipt of a written request shall create a rebuttable presumption that the association willfully failed to comply with this paragraph. A unit owner who is denied access to official records is entitled to the actual damages or minimum damages for the association's willful failure to comply with this paragraph. The minimum damages shall be $50 per calendar day up to 10 days, the calculation to begin on the 11th working day after receipt of the written request. The failure to permit inspection of the association records as provided herein entitles any person prevailing in an enforcement action to recover reasonable attorney's fees from the person in control of the records who, directly or indirectly, knowingly denied access to the records for inspection. (e.s.) The CMW ASSOCIATION willfully failed to permit AIELLO's statutory right to inspect the Official Records of the CMW ASSOCIATION, and SUNRAE MANAGEMENT was in control of the records and directly and knowingly denied AIELLO access to the records for inspection.

19. AIELLO has been damaged by willful violations of § 718.111(12), Florida Statutes by the CMW ASSOCIATION and SUNRAE MANAGEMENT.

20. Eventually, some documents were produced for inspection and copying in March 2005, but not before damages were incurred and suit had to be filed, and not all documents requested were produced that were requested. AIELLO and counsel are reviewing such documents, but to date are aware that the following requests were not completely complied with:

A. A copy of all minutes of the Board and Owners from January 1, 2004 through the present;

B. A book or books which contain the minutes of all meeting of the Association of the Board of Directors, and of the unit owners for a period of not less than the last seven (7) years;

C. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications and telephone numbers;

D. Accounting records for the Association for a period of not less than the past seven (7) years, which shall include, but not be limited to:

1. Accurate, itemized, and detailed records of all receipts and expenditures;

2. A current account and a monthly, bimonthly, or quarterly statement of the account for each Unit designating the name of the unit owner, the due date and the amount of each assessment, the amount paid upon the account and the balance due.

3. All audits, review, accounting statements, and financial reports of the Association; and

4. All contracts for work to be performed, including bids for work to be performed during the past year.

E. Ballots, sign-in sheets, voting proxies, and all other papers relating to voting by unit owners for all elections which have occurred within the past year.

21. Pursuant to § 718.111(12)(c), Florida Statutes, AIELLO is entitled to statutory damages, actual damages, costs and attorneys’ fees.

22. AIELLO has retained counsel to represent him in this action and is entitled to recover his attorneys’ fees pursuant to § 718.111(12)(c), Florida Statutes.

WHEREFORE, Plaintiff, ROBERT AIELLO, demands judgment against Defendants, COLONIAL MANOR WEST APARTMENTS CONDOMINIUM ASSOCIATION, INC. and SUNRAE MANAGEMENT SERVICES, INC., for statutory damages, actual damages, prejudgment interest, court costs, attorneys’ fees pursuant to § 718.111(12)(c), Fla. Stat., § 718.303, and pursuant to the Declaration of Condominium and § 57.105(7), Fla. Stat. and such other and further relief as this Court deems just and proper.

COUNT II

COMPLAINT FOR DAMAGES REGARDING SPECIAL ASSESSMENT

(VS. CMW ASSOCIATION)

23. Aiello realleges and reavers the allegations set forth in paragraphs 1 through 6 as though fully set forth herein.

24. The Defendant CMW ASSOCIATION is to be governed by all applicable sections of F.S. §718 not in direct conflict with the Declaration, as well as all procedural sections of F.S. §718 which assist in the fulfillment of the fiduciary duties of the Board of Directors to unit owners.

25. On or about September 23, 2004, the Defendant, through its Board of Directors, votes to enact and collect a “special assessment” of $50,000 above its existing annual budget for the following states purposes:

(a) Bringing the elevator up to code: $20,000

(b) Tenting for termites: $11,500

(d) Pressure cleaning and refurbishing recreation room: $3,500

26. The Defendant and its Board of Directors have spent the funds designated for the special assessment purposes for items not related to said purposes, have overspent the amounts so designated, and have improperly and illegally depleted those specific financial resources of the association in violation of F.S. §718.116(10), which states: “The specific purpose or purposes of any special assessment approved in accordance with the condominium documents shall be set forth in a written notice of such assessment sent or delivered to each unit owner. The funds collected pursuant to a special assessment shall be used only for the specific purpose or purposes set forth in such notice. However, upon completion of such purpose or purposes, any excess funds will be considered common surplus, and may, at the discretion of the Board, either be returned to the unit owners or applied as a credit toward future assessments.”

27. The Defendant has violated F.S. §718.116(10) and as such, has breached its contractual and statutory duty to abide by its covenants and F.S. §718, to the detriment of the Plaintiff, and has otherwise authorized expenditures prohibited by Florida law.

28. As a direct and proximate result of the illegal, unauthorized acts of the Defendant, Plaintiff Aiello has suffered financial damages equal to his pro rata share of the special assessment currently dissipated by the Defendant for each of the units he owns.

29. To prosecute this action, the Plaintiff has had to obtain the services of attorneys and to be obligated for reasonable attorney’s fees and costs, and said fees are recoverable under F.S. §718.303, F.S. §57.105 and the Declaration at Section 13, page 14.

WHEREFORE, the Plaintiff Robert Aiello seeks damages equal to his pro rata share of the September 23, 2004, special assessment for each unit owned, interest, costs and attorney’s fees.

COUNT III

COMPLAINT FOR DAMAGES REGARDING RIGHT OF FIRST REFUSAL

(VS. CMW ASSOCIATION)

30. Aiello realleges and reavers the allegations set forth in paragraphs 1 through 6 as though fully set forth herein.

31. The original Declaration, at Article 9, Pages 11, 12 and 13 at OR Book 4100, Pg. 974 through 976, in summary, provides that existing unit owners, at the time a unit is put up for sale, have the right of first refusal and to match a bona fide offer and the terms and conditions of a prospective sale.

32. On January 17, 1998, the Board of Directors and Defendant CMW ASSOCIATION initiated and voted to amend various provisions of its Declaration and provide same to its unit owners, inclusive of Article 9.

33. On April 2, 1998, Defendant recorded the amendment in the public records at OR Book 27977, Pg. 538 through 547.

34. At no time did the Board of Directors notice or submit the proposed amendments to the Declaration to the mortgagees of the then current unit owners or obtain written approval for the amendment.

35. The original Declaration, at its introduction, I., Pg. 2, OR Book 4100, Pg. 965, requires that the amendments to the Declaration are “subject to the approval of all the holders of recorded mortgages.”

36. The Defendant, having failed to seek and obtain the approval of all unit owners mortgagees of record, breached the terms and conditions precedent necessary for the legal and valid adoption and recording of the attempted amendment and as such, it is invalid, void, and of no effect.

37. In July and August of 2000, the Plaintiff, at all times material an existing unit owner, attempted to purchase Unit 305 and to match the offer and mirror the terms of a purchase/sale contract presented to a third party, non-owner, but was advised by CMW at that time that the amendment to Article 9 recorded on April 2, 1998, eliminated the right of first refusal by an existing unit owner.

38. Plaintiff Aiello stood ready and willing to purchase Unit 305 and was prepared to meet all the terms of the purchase, but was precluded from the purchase.

39. As a direct and proximate result of the Defendant’s recording of an ineffective and invalid amendment to Article 9, and the misrepresentations concerning the validity of the amendment, the Plaintiff was precluded from the purchase of Unit 305 and sustained damages, loss of value, loss of use and income, which are continuing.

40. Plaintiff has complied with all conditions precedent hereto.

41. To prosecute this action, the Plaintiff has had to obtain the services of attorneys and to be obligated for reasonable attorney’s fees and costs and said fees are recoverable under F.S. §718.303, F.S. §57.105 and the Declaration of Section 13, Page 14.

WHEREFORE, Plaintiff Aiello demands damages since July 2000 for the loss of value of Unit 305, and/or sale, prejudgment interest, a loss of use, costs and attorney’s fees.

COUNT IV

DECLARATORY JUDGMENT (VS. CMW ASSOCIATION)

42. Aiello realleges and reavers the allegations set forth in Paragraphs 1 through 6 as though fully set forth herein.

43. This is an action for Declaratory Relief as set forth in F.S. §86 and has fulfilled all, if any, conditions precedent to this action.

44. Plaintiff Aiello is in doubt as to his legal rights under F.S. §718 and the recorded Declaration and By Laws of Colonial Manor West Apartments Condominium Association, Inc. and seeks the Court’s interpretation of documents and facts so as to establish basic rights under Florida law.

45. Plaintiff Aiello asserts that the Defendant CMW ASSOCIATION has taken actions which are contrary to Florida law as well as the originally recorded Declaration and By Laws at OR Book 4100, Pg. 954.

46. Plaintiff Aiello has standing as a unit owner, and the association’s interpretations of its governing documents and its actions thereof, subject the Plaintiff to an abuse of his contractual rights with respect to his property rights and the administration of his association.

47. The Plaintiff asserts that the Defendant CMW ASSOCIATION on April 2, 1998, recorded an amendment to its Declaration without first obtaining the approval of all unit owner mortgage holders, as required for an alleged amendment by I., P. 2 OR Book 4100, Pg. 965 of the original Declaration, and as such, said amendment is invalid.

48. The Plaintiff asserts that the Defendant CMW ASSOCIATION recorded an alleged amendment to its By Laws, an exhibit to a Declaration, by recording same on April 2, 1998 without the approval of all mortgage holders as required for an amendment (an exhibit to the Declaration) by I., P. 2, OR Book 4100, P. 965, and further failed to establish for the recording in the public record a certification as to the first page of the Declaration (it used first page of By Laws) as required by F.S. §718.112(1)(b), and as such, the attempted amendment to the By Laws in invalid.

49. As a direct result of the association’s failure to lawfully amend the Declaration, and the misrepresentation thereof, the Plaintiff Aiello was deprived of the financial benefit of an opportunity to purchase Unit 305.

50. As a direct result of the association’s failure to lawfully amend its By Laws, and the misrepresentation thereof, the Plaintiff Aiello, as well as all unit owners, have been deprived of their lawful opportunity to elect all directors annually, not the 2-year terms as expressed in the attempted amendment.

51. As a direct result of the failure of the association to lawfully amend its By Laws, under those circumstances in which a quorum and/or majority vote could not be obtained without the presence of directors serving the second illegal year of a 2-year term, and all of the votes cast thereof by said improperly serving directors, all actions, votes, decisions, assessments, and expenditures are susceptible to invalidity and ultra vires acts on behalf of the corporation.

52. The Plaintiff Aiello seeks legal and equitable relief from the hereto asserted invalidity recorded and utilized amendments to the Declaration and By Laws, for said acts and omissions by the Directors and the association are continuing.

53. The Plaintiff Aiello has had to obtain legal counsel and become obligated for reasonable attorney’s fees and costs to prosecute this action and is entitled to recover all costs and attorney’s fees pursuant to F.S. §718.303, F.S. §57.105 and the Declaration at Section 13 and 14.

WHEREFORE, Plaintiff Robert Aiello demands declaratory, legal and equitable relief and the entry of a final Declaratory Judgment, to wit:

a. Striking from the public record the Declaration as recorded on April 2, 1998, at OR Book 27977, Pg. 538 through 547.

b. Striking from the public record the amendment to the By Laws as recorded on April 2, 1998, at OR Book 27977, Pg. 533 through 537.

c. An Order mandating the full and immediate compliance with the original Declaration and By Laws as recorded at OR Book 4100, Pf. 964 through 999 and all steps to correct all administrative and procedural errors.

d. The recovery by Plaintiff Aiello of all reasonable costs and attorney’s fees.

COUNT V

DECLARATORY JUDGMENT AND DAMAGES FOR ULTRA VIRES ACTS

(vs. CMW Association)

54. AIELLO realleges and reavers the allegations set forth in paragraphs 1 through 6 above as though fully set forth herein, and further alleges subject matter jurisdiction under Chapter 86, Florida Statutes.

55. According to the CMW ASSOCIATION, the existence of dry wood termites in the Colonial Manor West structure was recognized in January or February 2004. On June 17, 2004, at a purported meeting of the Board of Directors of the CMW ASSOCIATION and its purported directors STERN, CONROY, RIVERA and FREEMAN, allegedly present at or for such meeting, voted to contract with Dead Bug Edwards Termite Company for the tenting and fumigation of the Colonial Manor West structure.

56. However, all actions relevant thereto which the CMW ASSOCIATION attempted to take were ultra vires because:

A. Bylaws: Notice of Members’ Meetings, Article II, Section 3 and Notice of Director Meetings, Article III, Section 5, both of which originally required that three day notice must be given by mail, telephone, telegraph or personally, but now purport to allow posting and in the case of board meetings purport that notice is properly given if “posted and/or mailed”; the Bylaws were purportedly changed in 1998 but the attempt to change them was done without 100% mortgagee approval. All notices relevant to this issue were posted only;

B. Colonial Manor’s attempt to amend its Bylaws by a recorded statement on 4/2/98 (OR Book 27977, p. 533-537; See Exhibit “F”) also failed for the following reason. The certificate stated it was an amendment to the Bylaws but in error states it is related to OR Book 4100, p. 987. The first page of the Declaration is OR Book 4100, p. 964. This certification is in error and invalidates the amendment for it failed to comply with the requirements of F.S. §718.112(b): “No amendment to the Articles of Incorporation or Bylaws is valid unless recorded with identification on the first page thereof of the book and page of the public records where the declaration of each condominium operated by the association is located.” Just as with subsection “A” above, the invalidity of the Bylaws Amendment of 1998 establishes that the original Bylaws are the effective provision, where the attempted Bylaws Amendment is invalid. The pertinent difference in this subsection “B” relates to Article III, Directors 4. The original provisions provide for the term of a director to extend to the next annual meeting and thereafter until his successor is duly elected, but the invalid amendment attempted to provide for alternate 2 year terms for the directors. As such, the Board as constituted since after the next annual meeting after April 1998 has been operating improperly and ultra vires.

57. Even under the invalid changes attempted in 1998, the group which calls itself the Board of Directors failed to follow the amended requirements under which it claimed it was operating. Despite the CMW ASSOCIATION’s attempt to conduct official business on June 17, 2004, no meeting of the Board of Directors was ever properly called or conducted on June 17, 2004. No proper notice of such meeting was ever provided, and such meeting was not a regularly scheduled board meeting which may, under appropriate circumstances, dispense with the requirement of notice. As a consequence, all action undertaken by the CMW ASSOCIATION at such purported meeting was ultra vires.

58. In attempts to remedy the above ultra vires acts, the CMW ASSOCIATION Board met in September 2004 and again in March 2005. However, their acts taken at both were ineffective as follows:

A. At the September 23, 2004 meeting, in an attempt to ratify the illegal June vote, four voted for tenting, but one was Borman, and three voted no. Borman was appointed to the Board in August 2004 to fill a Board vacancy (See Minutes at Exhibit “G”), but there was no vacancy when she was nominated and elected by the Board in derogation of Article III, ¶2 of the Bylaws attached to the Declaration of Condominium (Exhibit “H”). [1] Therefore, since Borman was improperly elected in August, her vote in September was a nullity, and the resulting tally of the remaining directors would be a no action vote of three for and three against.

B. Again in March 2005, a new Board elected in January 2005 attempted to ratify the illegal June 2004 and September Board votes. However, the notice of the meeting was improperly amended two days prior to the meeting to indicate a vote would take place on the tenting. See Composite Exhibit “I.” Therefore, all action taken by the new Board at the March meeting was ultra vires.

59. Approval of these actions at a properly constituted meeting of the CMW ASSOCIATION’s Board of Directors is required before these planned activities can be implemented. Despite the absence of such a proper meeting, the CMW ASSOCIATION and the CMW DIRECTORS continued to proceed forward with the scheduling and conduct of the fumigation of the Colonial Manor West structure.

60. The defendants have refused to obtain 100% mortgage approval, despite a 1999 letter to the CMW ASSOCIATION by its own attorneys that the actions were ultra vires (Exhibit “L”) and being further warned by Aiello (Exhibit “M”).

61. Plaintiff is an interested party within the meaning of § 86.021, Fla. Stat., and § 718.303 (1) and needs the court to construe the rights of CMW ASSOCIATION and the plaintiff in light of the Condominium Act for Florida.

62. AIELLO has retained counsel to represent him in this action. AIELLO is entitled to recover his attorney’s fees pursuant to inter alia, § 718.303(1), Florida Statutes.

WHEREFORE, Plaintiff, ROBERT AIELLO, demands judgment against CMW ASSOCIATION for his pro rata share of the unauthorized expenditures for the tenting and all related costs, pre-judgment interest, a declaration of his rights and a declaration that the ultra vires acts are void and that the CMW ASSOCIATION is prohibited from taking any action that would be ultra vires, and that the court take whatever further action is just and equitable under the law, and that AIELLO be awarded attorneys’ fees pursuant to § 718.303(1) and pursuant to the Declaration of Condominium and § 57.105(7), Fla. Stat. and costs.

COUNT VI

DEFAMATION

(vs. Stern and CMW Association)

63. AIELLO realleges and reavers the allegations set forth in paragraphs 1-3 and 6, as though fully set forth herein.

64. Defendant, JUDITH STERN (“STERN”), is an individual, a resident of Broward County, Florida, and is otherwise sui juris.

65. At times material hereto, STERN, served as a director of the CMW ASSOCIATION. STERN is presently and, at all times material hereto has been, the President of the CMW ASSOCIATION.

66. On January 6, 2005, STERN, then serving in her capacity as President of the CMW ASSOCIATION, authored a letter addressed to “All Unit Owners” of COLONIAL MANOR WEST, a copy of which is attached as Exhibit “O”. This letter was distributed by STERN and the CMW ASSOCIATION to the Colonial Manor West unit owners and posted on the CMW ASSOCIATION’s bulletin Board located in the common area of Colonial Manor West accessible to all Colonial Manor West unit owners, their guests and any other person present on the premises.

67. STERN’s letter contained numerous false and untrue statements including, without limitation:

A. AIELLO is “taking photographs with zoom lenses or whatever type of equipment they have purchased of personal items placed on the privacy of the Boreman’s private balcony area and sending out communications of descriptions of their personal underwear.” (Exhibit “O”, ¶ 3);

B. AIELLO has “made demands that I sell my unit to them or ‘else’”. (Exhibit “O”, ¶ 4);

C. AIELLO has “made false allegations accusing us of having a car towed, when no such action took place and they acknowledge that no such action took place.” (Exhibit “O”, ¶ 6);

D. AIELLO has “repeatedly attempted to break the locks on the new bulletin Board costing us in repair bills.” (Exhibit “O”, ¶ 7);

E AIELLO has “broken and destroyed many of the holiday decorations.” (Exhibit “O”, ¶ 8);

F. AIELLO has “repeatedly attempted to destroy and remove the community’s barbeque from the premises.” (Exhibit “O”, ¶ 9);

G. AIELLO has “made false statements to all of you that the barbeque is ‘illegal’ under State law.” (Exhibit “O”, ¶ 9); and

H. “Documents have been supplied to …AIELLO, despite their claims to each of you that no such thing transpired. We have signed Fed Ex receipts.” (Exhibit “O”, ¶ 12).

68. Stern wrote a follow-up letter on April 5, 2005 (Exhibit “P”) claiming:

A. AIELLO wrote or was part of writing “anonymous” letters written about herself, and various Board members, and mailed to most unit owners, as well as her daughter at her home, and to her neighbors at her residential community, which is also located in Fort Lauderdale (including one sent to NY to one of the snowbirds). (Exhibit “P”, ¶ 1).

B. AIELLO wrote or was part of writing emails discussing pictures taken by Joseph Vallillo regarding Eileen Borman’s private use of her balcony and descriptions of her underwear. (Exhibit “P”, ¶ 2).

C. AIELLO wrote or was part of writing an email demanding she sell her unit to Vallillo for $125,000 (Exhibit “P”, ¶ 3).

69. STERN additionally sent e-mails to members claiming that plaintiff opposed the tenting so he could have his own friends in the business get the business (See Composite Exhibit ”Q”), but at the time, he knew no one in the business who was licensed in Florida.

70. The foregoing statements, among others, are false and untrue, and STERN, individually and in her capacity as President of the CMW ASSOCIATION, knew of the falsity of such statements.

71. STERN, individually and in her capacity as President of the CMW ASSOCIATION, distributed, disseminated and published such false and untrue statements willfully and maliciously, without the benefit or protection of any privilege or justification.

72. Such false and untrue statements published by STERN, individually and in her capacity as President of CMW ASSOCIATION, falsely and wrongly impugned AIELLO’s character, in some cases accused him of criminal acts, and subjected him to hatred, public ridicule, disgrace and contempt.

73. As a consequence, AIELLO has suffered harm and injury to his reputation and has otherwise been damaged.

74. STERN published such false and untrue statements in her capacity as President of CMW ASSOCIATION, using the facilities of the CMW ASSOCIATION, and did and committed such wrongful acts and conduct while acting and serving in her official capacity and in the course and scope of her position as President and a director of the CMW ASSOCIATION. As such, the CMW ASSOCIATION actively and knowingly participated with STERN in the perpetuation of the false and untrue statements about AIELLO and condoned, ratified and consented to such conduct.

WHEREFORE, Plaintiff, ROBERT AIELLO, demands judgment against Defendants, JUDITH STERN and COLONIAL MANOR WEST APARTMENTS CONDOMINIUM ASSOCIATION, INC., for damages and court costs. AIELLO reserves his right to seek leave to amend to assert a claim for punitive damages against STERN and the CMW ASSOCIATION pursuant to Section 768.72, Florida Statutes.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to: John H. Richards, Esquire, Cooney, Mattson, Lance, et al, P.O. Box 14546, Fort Lauderdale, FL 33302, Stuart Zoberg, Esquire, Becker & Poliakoff, 3111Stirling Road Fort Lauderdale, FL 33310 and F. Blane Carneal, Esquire, P.O. Box 747, Orange Park, FL 32067 this _____ day of March 2006.

Respectfully Submitted,

PETER M. COMMETTE, P.A.

Attorney for Plaintiff

1323 S.E. Third Avenue

Fort Lauderdale, Florida 33316

Telephone: (954) 764-0005

Facsimile: (954) 764-1478

By:

PETER M. COMMETTE, ESQ.

Florida Bar No. 350133

[1] Alysia Freeman resigned as a Board member at the August meeting. Before she resigned she constituted the 4th director present (out of 7) which made the necessary majority and quorum for August meeting, because there wouldn’t be enough directors present for a quorum. Before she resigned at the meeting, she nominated her replacement Borman, who was elected by the majority present, which included Freeman, making Borman an 8th member of the Board of Directors for which only 7 are allowed. After Borman was elected, Freeman resigned.