Does attendance constitute waiver of notice?

Hi,

We are a 255 member community in Texas (no condos or TH). We had our annual meeting in February, which we elected the new Board of Directors. Now, on or two members who were at that meeting AND voted, claim the meeting was illegal because we did not send notice of the annual meeting. (Even though our By-Laws state "No notice of the annual meeting is required.") The claim is that since we did not hold the annual meeting in October or within 90 days of October(as stated in the bylaws)the meeting would now become a "Special Meeting" and notice was not sent. No, our bylaws do not state that it becomes a special meeting, just a delayed annual meeting. As a matter of fact the last sentence of the particular article reads: "Failure to hold the annual meeting at the designated time does not work a dissolution of the Association nor impair the powers, rights, and duties of the Board of Directors of Officers." Furthermore, the assn has held its meetings in Feb, March, and even April for at least the last 5 years without member complaints.

One member in particular (same one as above), who ran as a "penciled in" candidate and for a position she resigned from at the prior months meeting and lost, has gone around the neighborhood and collected proxies for what she "thinks" amounts to 1/10th of the votes because "she" wants to have the annual meeting re-done.

Among other things, here's what I've found to be as enough to deny the request for a "special meeting" to re-hold the annual elections:
1) the Proxy used was one that was specifically developed FOR the annual meeting and is stated as such (to be used at the annual meeting)in the body of the Proxy - including specifying the date (Feb 19) and here's why that matters,
2) all of the Proxy signatures are dated AFTER Feb. 19 - They are for APRIL.
3) All but 2 of the signatures are photo copies.
4) Ownership could not be verified on 3 of the lots
5) The person receiving the Proxy was AT the annual meeting (2/19) AND VOTED!

Specifically, what I am asking is:

Does attendance at an annual meeting constitute a waiver of notice? Obviously, she knew there was going to be a meeting because she was there and voted. She was also at the Jan meeting (which is noted in the attendance records) when the date was confirmed for the annual meeting.
Because this member was AT the meeting (2/19) and voted doesn't her attendance constitute acceptance?

Thanks,
Elizabeth in Texas

The By Laws have since been amended to state that the meeting will now take place in March. There were many, many things that were in error before the new noard came in. Changing documents and having special BOD meetings take time because proper "due diligence" must take place. This new board has done more in the last 3 months than since the assn's inception 1982. One example is that a management certificate had NEVER been filed and Texas requires it. It, too, has since been properly filed.

Does attendance at an annual meeting constitute a waiver of notice?

The simple answer is, typically, yes.

They were at the Jan meeting. That's what I've been telling this "person(s)" all alonng but I just wanted other interpretations just to make sure.

Thank you!

Just to be SURE - if you didn't conduct the Oct. meeting because of lack of quorum, the board could have announced the postponed meeting for another time. In that case, no notice is needed.

But it sounds like the board disregarded the Oct. deadline and set the Annual Meeting at a board meeting. In that case, Notice should have been given.

Were people mailed ballots? How did he get all those proxies?

Something's missing here. .

Basically, what seems to be happening is that Member A, who did not like the outcome of the voting, is calling the question of the meeting date on the "bad advice" of Member B who seems to have some "unknown" beef with the new board.

What I am gathering from talking with Member B is that he is afraid of "being sued" because he thinks that the new board is going to suddenly "slap" people with violation notices and make demands when the prior board has been lax about the restrictions for years. It has been explained to him that is not the case. The board does not even have an enforcement policy in place! That would be the starting point. The Board is a long way from making any demands on any of the members, even if they are in violation. There has to be due diligence involved and, because the prior board had no knowledge of the concept or did not care to enforce any of the violations, he wants to throw up his hands and suggest we do nothing since nothing has been done before.

As for Member A, she is mad because she lost out at the election. Member A resigned as VP in late December, early Jan. Then, when the elections came in Feb, she wanted to run as VP as a write in candidate, which was allowed. Well, she lost but then wanted to simply appointed as VP or as a Director and the elected VP to be Secretary. You can't simply "appoint" someone as a Director or to a position if they lost at the election in their desired position. Personally, I would be against anyone requesting to be in a position if they resigned from that very same position a month ago, but that's just me. She was in the election as a write in candidate. She simply did not have enough votes to win.

I know for a fact that the elcetions have not been held in Oct. for the last 5 years. Specifically, in 2008, it was held 4/26 and I know this because when I was asked to be on the board I said I could not attend the annual meeting because that was my wedding day. No one complained at that point!

What this boils down to is someone who is afraid of changes and someone wasn't happy with loosing. Both Member A & B were at the annual meeting and both voted! As a matter of fact, Member B, the one who is afraid of making changes, was also a write in candidate as a Director - and received it - but in March he resigned, too, citing that he did not like the way things were being done but could not elaborate further, just simply that he did not like it.

Here is the ByLaw in question, verbatim:

Article III: "Section 2 Annual Meeting. The first regular meeting of the members of the Association shall be held on October 26th, of each year at 10:00 o'clock a.m. at the principal office of the Association or at such other place within Harris or Montgomery County, Texas as may be designated by the Board of Directors. If such date for the annual meeting of the members is a legal holiday, the meeting will be held at the same hour on the first day following which is not a legal holiday. The Board of Directors may postpone the time of holding the annual meeting of members for such period not exceeding ninety (90) days as they deem advisable (and an annual meeting which is so postpones or for any other reason not held on the date provided above (or on the first day following which is not a legal holiday) is herein referred to as a "delayed annual meeting"). Failure to hold the annual meeting at the designated time shall not work a dissolution of the Association nor impair its powers, rights, and duties of the Association's officers and directors."