Board member suing board

Started by PamelaM5 • 11 replies • 4145 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

PamelaM5 (Florida)
Posts: 85

Posted:

For the last nine months a member of my HOA board has had an extremely contentious relationship with the board after he was forced to remove a retaining wall he built without getting the proper approvals from a number of agencies.

He announced at a board meeting last week that he was going to sue the board to recover legal fees from consulting an attorney for advice.

My feeling is tha he should no longer be on a board that he's suing, and should resign before doing so.

Does anyone have experience with an issue like this one, or know of a precedent of some kind for situations like this?

We're in FL.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Pam

Do not fight him. Challenge him. Tell him to sue. Also remind him that once he files suit, that he can be countersued for damages and as you know you are right, you invite his suit and let us see where the cards (cost) fall.

Do not fall for my nadas are bigger then your nadas...........LOL

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By PamelaM5 on 11/13/2012 2:03 PM
For the last nine months a member of my HOA board has had an extremely contentious relationship with the board after he was forced to remove a retaining wall he built without getting the proper approvals from a number of agencies.

He announced at a board meeting last week that he was going to sue the board to recover legal fees from consulting an attorney for advice.

My feeling is tha he should no longer be on a board that he's suing, and should resign before doing so.

Does anyone have experience with an issue like this one, or know of a precedent of some kind for situations like this?

We're in FL.

Let him sue. As long as the board followed the proper procedures, the HOA should be fine. If the first stop is small claims court, then you won't even need an attorney although you should check and see if your CC&R or state codes require mediation/arbitration before you go to court.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Pamela:

Most contracts and probably most CC&R’s have a provision in them that in the event of litigation the prevailing parties may recover their attorneys fees plus their other costs from the opposing parties. The court normally awards these costs as part of a final judgment. Implicit in the foregoing is that the attorney actually represented the prevailing party in court.

If I understand you correctly, there has been no actual litigation between the irate board member and the association. He merely consulted an attorney and now believes that the association owes him reimbursement.

Does the board member claim that he consulted the attorney for himself or for the association?

If he was seeking advice for himself, then the association owes him nothing. I have never seen a contract with a clause for recovering legal fees incurred in obtaining advice that does not involve litigation.

If he claims that he sought out legal advice for the association, then things may get a little more complicated. Many association bylaws allow a board member to incur expenses for the association, pay for them, and get reimbursed later. Unless your association has a bylaw prohibiting a board member from seeking legal advice without prior approval, he may have an argument in his favor. The board is entitled to see the written advice that the attorney provided. If there was no written advice, the board is entitled to hear from the attorney what was asked of him and what advice he gave. If either the attorney or the board member invokes lawyer-client privileges, then the advice was clearly personal.

If the advice was clearly sought out for the association, then you should consider reimbursing him. Otherwise, wish him a nice day.

PamelaM5 (Florida)
Posts: 85

Posted:

Thanks for all your replies.

I suppose what I'm most concerned about is what this is doing to the board itself. We're a self-managed community and having one (of five) board members who's suing the board he sits on is creating real animosity and hostility at meetings. He's already filed suit against us once before but dropped it before our scheduled mediation.

My question is whether you think he should be asked to resign if he proceeds with this second lawsuit, or if there's any precedent for a board member being asked to resign under similar circumstances.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It sounds like time for the membership to vote the board member out. That's how he/she will have to be removed. Can't just "fire" them. So maybe as a general member a petition can be started in removing this person as a board member. You may cite that it's due to aminomisity this person creates and wanting to sue the HOA costing the membership money.

Besides suing your HOA is suing yourself and your neighbors. Sounds like this guy has money to burn. You may want to let him/her know what actions their threat of lawsuits really have. It punishes every member including themselves. Plus the HOA should vote to counter sue which is cheaper and can be for anything like paying lawyer fees themselves. Don't be pushed around and tell them that no details of their personal lawsuits will be discussed. As that is what they want is attention on them. Don't give it to them. Just give them the hand (no fingers pointed) and a "THANK YOU" we will wait for your suit...

Former HOA President

FredS7 (Arizona)
Posts: 927

Posted:

You can't do anything about contentious (as long as it doesn't rise to the level of illegality).

You can ASK anyone to resign but they are not obligated to do so.

Seems to me that he could not attend an executive session to discuss the lawsuit. I'm not sure where you would go to see that in writing however.

PamelaM5 (Florida)
Posts: 85

Posted:

His term is up in Feb. and we'll find out by Dec. 5 if he plans on running again. I hope not, but if he does we'll start making plans to have him recalled if he wins, although I don't think he'd win now if he ran for dogcatcher.

JonD1
Posts: 2,350

Posted:

Pamela as to legal advice it would be foolish for you to accept advice from those posting here. Much of the information posted here is simply WRONG. Case in point that under most documents the prevailing party has their legal costs paid for. And as no one on this board has read most of the documents governing HOAs it should prevent people from making general statements for which they have no real knowledge. Some people have a bad habit of speaking as if they know when in fact they base their knowledge on little if anything.

Now on to Mr. sue happy. My advice would be in the event he files a suit ( I would be surprised if he does) I would quickliy notify all the owners and suggest no one support his continuation as a sitting Board member. Rather simple. He does himself in.

As far as requesting he resign IMO highly unlikely. Let him foam at the mouth and make his threats and more than likely he will remove himself.
When elections come up you as an owner and every other Board member have the right to campaign and speak against him being re-elected. Should be preety easy to get him out you just need someone to run against him. Good luck.

When he makes threats brush them off more than likely just a windbag with a big mouth....

BradP (Kansas)
Posts: 2,640

Posted:

here is my 2 cents, not an attorney. Even though he is a board member he is still homeowner and if he disagrees with a board verdict has the right to sue. Treat him no differently than you would any homeowner. I would advise your attorney of the threats and then sit back and wait. If he sues then you disclose the information to the membership as you normally would. I wouldn't ask him to resign from the board, however, he would not be able to participate in any discussion pertaining to the lawsuit.

Why do people who want to sue get such a bad rap? Suing is everyone's right and if he wants to exercise it that is up to him. He must deal with the consequences good or bad from it.

PamelaM5 (Florida)
Posts: 85

Posted:

No problem, Jon - we take legal advice only from our board attorney, who's good at what he does.

I guess I'm more concerned with the moral implications of suing a board you sit on and how it diminishes your effectiveness and the effectiveness of the board, and how to deal with that.

Campaigning against him, should he decide to run, is a good suggestion. We've been pretty much without a fifth board member for about nine months already, when all the problems with him started, and I'd like to have one who's not so bitter at this point. He fights everything we're trying to do, rants and raves at meetings and has just made the whole experience so difficult.

JonD1
Posts: 2,350

Posted:

Quote:

Posted By PamelaM5 on 11/14/2012 11:51 AM
No problem, Jon - we take legal advice only from our board attorney, who's good at what he does.

I guess I'm more concerned with the moral implications of suing a board you sit on and how it diminishes your effectiveness and the effectiveness of the board, and how to deal with that.

Campaigning against him, should he decide to run, is a good suggestion. We've been pretty much without a fifth board member for about nine months already, when all the problems with him started, and I'd like to have one who's not so bitter at this point. He fights everything we're trying to do, rants and raves at meetings and has just made the whole experience so difficult.

Pamela I wish you luck. One yo-yo is all it takes to prevent any real progress from being made. My number 1 goal would be to get him out.
And while it might offend YOUR morals I doubt Mr. sue happy has any issue with morals.

People, windbags aways threaten others whith what they themsleves are most afraid of. So when dim wit pulls out the sue card just dismiss him for what he is an empty barrel.

Good luck.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here