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IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA
SOUTHCHASE PARCEL 45 COMMUNITY
ASSOCIATION, INC.,
CASE NO.: C10-01-10023
Plaintiff,
Vs.
JUDITH ANN GARCIA, MARK MACE, VALERIE M.
RUTHERFORD, ROGER T. ELLIS, and STEPHEN CLUNEY,
Defendants.
________________/
ORDER
THIS CAUSE, having come before the Court
upon Plaintiffs Motion For Temporary Injunction on December 6. 2001, and
the Court having reviewed the Motion and pleadings, hearing arguments of
counsel, and being otherwise duly advised, finds and decides:
(a) Plaintiff Southchase Parcel 45 Community
Association, Inc., (the “Association”) is a Florida not for profit
corporation that operates a residential community in the State of Florida
and is a mandatory membership association.
(b) In October, 2001, the Association
filed suit in case styled as: Southchase Parcel 45 Community Association.
Inc. v. Judith Ann Garcia. et al.. Case No. C10-01-8975, in the
Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida
(“the Prior Suit”). Pursuant to a stipulation, which was memorialized by
a letter dated October 30, 2001 from James E. Olsen, Esquire, the attorney
for the Association, a special membership recall meeting was held on November
19, 2001 at 7:00 p.m.
(c) The November 19, 2001 meeting was
held in compliance with the stipulation memorialized by the October 30,
2001 letter, which was filed in the Prior Suit.
(d) The purpose of the November 19, 2001
meeting was to determine whether the then five members of the Association’s
Board, Steven Berube, Phyllis Beach, Amy Jones, Donald Spero, and Gail
Stuart, should be recalled, and if so replaced by five new Board members;
namely, Stephen Cluney, Valerie Rutherford, Judith Garcia, Roger Ellis
and Kathleen Ghanem.
(e) The Association has a total of 798
possible votes. Of the 798 votes, there were 66 voters present and in person
and 357 voters present by proxy at the November 19, 2001 meeting. Total
participating members of the Association in person or by proxy was 423.
58 voted against the removal of the incumbent Board while 324 voted for
the removal and election of the five new Board members described in paragraph
(d) above.
(f) The next day, and on November 20,
2001, the Association filed a Final Disposition Form and Notice of Voluntary
Dismissal with the October 30, 2001 letter referenced in paragraph (a)
above. In pertinent part, the October 30, 2001 letter stated:
Pursuant to our telephone conference yesterday,
this matter will confirm the following terms of the settlement between
the parties to the above-captioned litigation:
7. In the event that a quorum of 30% of
the members is not present, in person, or by proxy, at the special meeting,
than the meeting may be adjourned for approximately thirty (30) days to
enable the parties to hopefully acquire sufficient proxies to convene the
meeting.
(g) However, on the following Monday,
November 28, 2001, the Association filed this lawsuit and claimed that
the recall and election of the replacement directors violated Fla. Stat.
§ 617.0808. This lawsuit was brought notwithstanding the parties’
stipulation reached in the Prior Suit that the meeting could be held with
just a 30% quorum. It should also be noted that the Association took the
position in the Prior Suit that the proxies used at the October meeting
violated the provisions of Fla. Stat. § 720.306 and the Bylaws of
the Association.
(H) The Court determines that the
reference to the 30% quorum stipulation in the October 30, 2001 letter
in the Prior Suit is in reference the statutory quorum requirement set
forth in Fla. Stat. § 720.306(l)(a), which states in pertinent part:
§ 720.306. Meetings of members; voting
and election procedures; amendments
(1) Quorum; amendments
-
(a) Unless a lower number is provided
in the bylaws, the percentage of voting interests required to constitute
a quorum at a meeting of the members shall be 30 percent of the total voting
interests. Unless otherwise provided in this chapter or in the articles
of incorporation or bylaws, decisions that require a vote of the members
must be made by the concurrence of at least a majority of the voting interests
present, in person or by proxy, at a meeting at which a quorum has been
attained.
(i) 30% of the 798 total possible votes
of the Association is 240 votes. There were 423 members present and a total
of 324 votes were cast in favor of the removal of the prior five Board
members and in favor of electing the challengers to those five positions.
(j) Accordingly, the Court determines
that by stipulation of the parties in the Prior Suit, that the quorum was
sufficient to meet the requirements under Fla. Stat. § 720.306. The
Court further determines that the Association had an obligation to consolidate
the new issue that § 617.0808 governed in this ease in the Prior Suit
but failed to do so. Therefore, any claim that Fla. Stat.
§ 617.0808 governed over this election
is waived.
(k) Separately, however, the Court finds
and decides that Fla. Stat. § 720.306 is designed specifically for
homeowners associations and therefore governs in this case. This particular
Statute sets out the clear intent of the legislature which is that because
the 30% quorum requirement set forth under this Statute is less than what
is required in the Association’s Bylaws, that the November 19, 2001 recall
was in compliance with it as well as in compliance with the more rigid
Bylaws which require at least 400 participating members of the Association
to constitute a quorum.
(l) The Court finds that there clearly
exists no conflict between the provisions of Fla. Stat.
§ 617.0808 and Fla. Stat. §
720.306. They are different statutory acts designed to control different
types of organizations and Fla. Stat. § 720.306 is specific to homeowners
associations. Thus, §720.306 applies and § 6l7.0808 does not.
(m) The Court further finds that there
is no justifiable issue of fact or law in this case, and that clearly the
November 19, 2001 special member recall meeting was held in compliance
with the Bylaws and the provisions of Fla. Stat. §720.306 and that
the five new Board members Stephen Cluney, Valerie Rutherford, Judith Garcia.
Roger Ellis, and Kathleen Ghanem were duly elected as the Directors of
the Association on November 19, 2001.
(n) This Court further finds that the
expense to the Association which has been generated by the Board of Directors
which has been ousted is an unnecessary, defiant expense, raising non-justifiable
issues of fact and law that created additional expense for the homeowners
association.
ACCORDINGLY, IT IS ORDERED AND ADJUDGED:
1. The Association’s Motion For Temporary
injunction is and the same DENIED.
2. The five Board members elected on November
19, 2001 after the other Board of Directors
were removed
shall be placed immediately as Directors for the Association.
3. It is further ordered that the prior
Board members immediately turn over to the new Board
members all Association
records that may be within their possession, custody, or control.
4. The prior Board members and officers
are further ordered to remove themselves as
signatories on
any of the Association’s accounts.
5. The law firm of Litchford & Christopher,
Professional Association, is and the same forthwith
substituted as counsel
for the Association in this lawsuit.
DONE AND ORDERED nune pro tune to December
6, 2001, This 18 day of February 2002.
George A, Sprinkel, IV. Circuit Judge
SIGNED BY JUDGE SPRINKEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct
copy of the foregoing has been furnished by U.S. Mail to: Alan B. Taylor,
Esq., P.O. Box 1549, Orlando, FL 32802; and James E. Olsen, Esq., Wean
& Malchow, PA., 1305 East Robinson Street, Orlando, Florida 32801 this
18th
day of Feb, 2002.
Alan Taylor
Attorney for the Association |
