Unanimous board vote for Litigation?

Started by GuyM1 • 28 replies • 1283 views

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

⚡ Takes 30 seconds

Already a member? Log in

GuyM1 (Ohio)
Posts: 318

Posted:

When a board takes a unit owner to court does it need a unanimous vote? Board left out one board member without notification of a meeting which the other two agreed to bring Litigation against a unit owner. This is in Ohio.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Why are they suing? This is just a bad idea all around. It should be majority vote and with 1 person representing the HOA talking to the lawyer. That limits expenses and confusion.

Is this lawsuit for something like a violation?

Former HOA President

GuyM1 (Ohio)
Posts: 318

Posted:

Yes, a bylaw violation that the Board President is not clear on the meaning but he and the secretary wanted to and did bring litigation on. This was done without notifying the third member of the meeting to vote because in an email to her he stated he knew she would vote against it.

AugustinD
Posts: 5,144

Posted:

Check your Bylaws and Declaration. I think it is unlikely either say anything about a unanimous vote being required for such an item.

Please confirm: Is this a three-director Board? If so, and since I think it is likely that a board majority would have prevailed regardless of the third director's presence, I would let it go. On the positive side, taking the Member to court will throw a lot of light on the dispute. Court records for this will likely be public information where you are. During Discovery, the Member could ask for a record of the vote to take her/him to court and ultimately get the Judge to tell the HOA to shape up.

GuyM1 (Ohio)
Posts: 318

Posted:

The two members that wanted the Litigation did this with:
1- No notice of the meeting.
2- No record of a meeting.
3- No unanimous vote from board or members to take action without a meeting.
4- No records of any of this.
5- Third board member never voted to bring an action without a meeting.
6- Third member never was given notice of either action.
7- Third member never knew that litigation was brought till after by the other member.

Nine unit Association, something like this should be voted by members, not the board.

Attorneys make out on this which is pushing over $35,000 just in their fee's

GuyM1 (Ohio)
Posts: 318

Posted:

Section 3. Notices of meetings. Unless waived, written notice of each an i.ng stating the time, place and the purposes thereof shal1 be given by personal delivery or by leaving a copy at each members unit, or by mailing a copy to such member addressed to him at his unit, not more than forty-five (45) days nor less than seven 0) days before any such meeting. Any member, either before or after all meeting, may waive any notice required to be given by 1aw or under these By1aws.

(2) Action Without }leeting. Any action which may be authorized or taken at a meeting of the unit owners or of the Board, as the case may be, may be authorized or taken without a meeting with the affirmative vote or approval of, and in a writing or writings signed by all of the unit owners or all of the members of the Board respectively, which writing or writings sha1l be filed with or entered upon the records of the association

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GuyM1 on 01/31/2018 6:27 AM
The two members that wanted the Litigation did this with:
1- No notice of the meeting.
2- No record of a meeting.
3- No unanimous vote from board or members to take action without a meeting.
4- No records of any of this.
5- Third board member never voted to bring an action without a meeting.
6- Third member never was given notice of either action.
7- Third member never knew that litigation was brought till after by the other member.

Nine unit Association, something like this should be voted by members, not the board.

Attorneys make out on this which is pushing over $35,000 just in their fee's

Check your Bylaws and Declaration for how to remove a director, then do so. With only nine condo units, it should not be difficult.

What was the outcome of the litigation?

GuyM1 (Ohio)
Posts: 318

Posted:

Not in yet but Judge said in summary judgment "most favorable for the defendant"

BenA2 (Texas)
Posts: 1,273

Posted:

If I were the third board member (or a member of the HOA for that matter), I would approach the attorney with your concerns. Assuming you are right, that a unanimous vote is required outside a meeting, then they sued without authority. I'm not sure how that will affect the case but I would think the attorney might change his plan of action based on that information.

Another option is to get with your neighbors and hire an attorney for advice.

RichardP13 (California)
Posts: 3,868

Posted:

Not sure of the meeting requirements in Ohio, but if the meeting was held in Executive Session, as it should be, then a majority could vote to proceed with a lawsuit.

On the other-hand, if this was a Action Without a Meeting, then the authority to proceed would have to have been unanimous, unless they can show the third director was unavailable having, say, open heart surgery.

GuyM1 (Ohio)
Posts: 318

Posted:

Funny thing is she did write a letter to the board and all the members plus CC'd the Attorney. Attorney wrote a letter back to everyone saying the board was open to answering all questions funny thing is she asked a bunch of them and neither the Lawyer or the board answered any of the questions. Now waiting for a final decision from the Judge. This will bring suits from owners because they all will be assessed for all the Lawyer fees for both sides plus court cost and possible damages.Third ex-member testified in court to all this.

GuyM1 (Ohio)
Posts: 318

Posted:

Board would go into an Executive meeting but there must be minutes and written signatures on the vote to bring Litigation against a member. The third member must be given notice as shown above and yes if that person couldn't be available they could vote with a majority. None of this happened! But bad move with only nine units and two people spending money that is needed for all the repairs that are needed.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It may be a long shot but the members may decide the 2 who voted be responsible for the money paid for the lawyer/lawsuit. If they did not act in the best interest of the HOA. Which is debatable if it was to correct a violation.

I would be wanting to see about a recall or a meeting of the minds with all the members. Hopefully a lesson was learned here that bringing a lawsuit to correct a violation is the wrong way to go about it.

Former HOA President

GuyM1 (Ohio)
Posts: 318

Posted:

Heres a twist Third board member became vice on Aug 28, 2016, and was removed on April 29, 2017, Annual meeting. The third member was filling the vice position for the woman that was moving out of the Association.At the Annual Meeting, a new member took the vice position, starting on that date. Litigation was brought in February 2017 while the third member was on the board. Know the President said in his deposition that the board voted in the fall of 2016 and said original member that moved voted with the board before the third member became the vice replacement. Problem with that is she had been removed from the board in August 2016 and they had no minutes or signatures especially the one that moved. Now at the trail, the Lawyer asked the new board member if she voted and agreed with the other two. Too bad, she wasn't on the board until April 2017 after litigation was brought. Now I'm thinking of going to the Ohio Bar Association and see about him being reprimanded for trying to mislead the judge on this voting issue. Also for the letter, he sent to the Association that I feel he defamed the person they were in Litigation with.

GuyM1 (Ohio)
Posts: 318

Posted:

There are several looking into making the 2 board member responsible for all the monies because they brought Litigation without the members or board unanimous vote. If you read down a post or two, I think the Association Attorney should pay some of it by knowing what he knew about board wrongdoing and not stopping it.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The lawyer is NOT responsible. The lawyer is just doing what the HOA is telling them to do. It's completely irrelevant at this point of what the vote is. The HOA as a whole has brought the suit NOT individual board members. It's just the individual board members went "rogue" and took the action on the behalf of the HOA. Which in a case of a violation enforcement is very hard to argue they were not doing their jobs. A bad option of how they did it BUT their job is to enforce covenant violations.

Really at this point you all just have to ride this litigation out. It's far too late now to stop it. Was it a bad idea? Don't know all the details to say if their action was justified or not. We don't know what the violation is that brought the lawsuit. Just because no one likes the fact a lawsuit was pursued, it doesn't mean it was NOT an option for the board to pursue to correct.

Former HOA President

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By MelissaP1 on 01/31/2018 8:37 PM
The lawyer is NOT responsible. The lawyer is just doing what the HOA is telling them to do. It's completely irrelevant at this point of what the vote is. The HOA as a whole has brought the suit NOT individual board members. It's just the individual board members went "rogue" and took the action on the behalf of the HOA. Which in a case of a violation enforcement is very hard to argue they were not doing their jobs. A bad option of how they did it BUT their job is to enforce covenant violations.

Really at this point you all just have to ride this litigation out. It's far too late now to stop it. Was it a bad idea? Don't know all the details to say if their action was justified or not. We don't know what the violation is that brought the lawsuit. Just because no one likes the fact a lawsuit was pursued, it doesn't mean it was NOT an option for the board to pursue to correct.

The attorney has more of a duty than to just do what the HOA says. Yes, if the board insists that he file suit against his advice, he can do so, but not if they made the decision in violation of the governing documents.

If he knew the vote was improper he should have refused to act on it and insist they do it the right way. He represents the HOA, not the board.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The lawyer represents the ENTIRE HOA including the board. It's the board that hired them. The lawyer most likely doesn't know or care about the vote it took to hire them. They just know they were hired to represent the HOA in their case against a rule violator. How they got hired is irrelevant to the case. So it's not going to be part of the case.

This is also why I tell people to question ANY lawyer that says "I will do whatever you tell me to do". This is EXACTLY why I tell people to dump that lawyer or start questioning possible options. A lawyer will do what they are told only. The lawyer is ONLY getting the information from these 2 members. Do you think they are going to tell them they didn't get the proper approval to hire them?

Former HOA President

GuyM1 (Ohio)
Posts: 318

Posted:

See I look at that very differently, the Lawyer works for the Association, not the board so it is his duty to protect the Association. In the letter, the Ex-board member wrote she suggested we look for new counsel for the Association because he continued litigation knowing there wasn't a legal vote. Litigation was for personal pickup in the driveway. Even President said in his deposition that he wasn't clear on the meaning of the bylaw, "lightbulb" Lawyer should have stopped the litigation and advised proper procedure instead he made them at trial say that they reread the bylaw and now understand it and that they themselves were in violation of that bylaw but sold their trucks and bought SUVs. Funny thing is SUVs are considered trucks by the Federal Vehicle Standards which were brought up at trial to show they were still in violation of that bylaw. Attorney knowing all this should have protected the Association from all the spent monies and possible damages but I guess he wanted to make money! The lawyer is bound by duty for the Association, not the board, the board must do things by the law if not the Lawyer should tell them to stop and do it right.

GuyM1 (Ohio)
Posts: 318

Posted:

Thanks, I agree totally. He should have told them that they should get a member vote being that there are only 9 Units. Also, the President brought this suit for Vengeance and the Attorney should have seen that and acted appropriately and protected the all the members of the Association. This could end up over $40,000 and divide that by 8 equals $5000 dollar assessed to the members. The 9th member is moving to not be charged by the Association through the courts.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The association and board are the SAME thing. It's just the board is elected from the general Association members to represent them on a daily business and make it's decisions. So there is no "They/Them". The board members are members of the association too.

The lawyer is NOT going to do no such thing. The lawyer is just doing the job they are being paid for. Which is to win the case against the defendant. They don't care about how the rules work in the HOA that got them hired. The lawyer isn't going to give them any of the advice you think either. It's not their job. Their job again is to get results of the case the HOA wants against the defendant.

Your not seeing the forest for the trees on this one. It sounds like these board members decided to use the HOA funds to pay a lawyer to take an owner to court over a violation. They felt that is the best way to have enforced this violation. They got 2/3 of the 3 possible votes to do this. Whether that is procedure or not is a HOA issue it is NOT a court/lawyer one. That's your inner turmoil within your HOA.

Now yes Trucks/SUV's do get considered the same. I know have a SUV and my tag does list it as a truck. However, believe insurance may view them differently.

Former HOA President

GuyM1 (Ohio)
Posts: 318

Posted:

If the Association and the board are the same then the Association is the board and they didn't vote! Your Lawyer statement is a bad representation of a Lawyer and I believe he works for the Association as a whole, not the board individuals. Do you know we aren't talking about a criminal case right? I do see through the Idiot trees that they think they can do as they please and that isn't the case for any Association. These bylaws are state laws too and Lawyers must abide by them just as the board must. I would like you to ask a Judge about a Lawyer misleading them with false information and see what would happen. So let me ask this when the President went to the Lawyer was it his duty to ask the Lawyer for his advice after he gave the Lawyer all the info? So whose duty is it to do the due diligence on the bylaw, like using the three-prong test just like a court does? The way you look at it the accountability isn't the Boards or the Lawyers it falls on the Association that wasn't even involved in it! So today the City Building department is going to court to start fining the Association $250 a day per violation which there are around 5 violations, now the Board and Attorney have been lying to the city which they are fed up with and are moving to fine, guess it's the Association members caused that too again without their knowledge.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GuyM1 on 02/01/2018 3:59 AM
Thanks, I agree totally. He should have told them that they should get a member vote being that there are only 9 Units. Also, the President brought this suit for Vengeance and the Attorney should have seen that and acted appropriately and protected the all the members of the Association. This could end up over $40,000 and divide that by 8 equals $5000 dollar assessed to the members. The 9th member is moving to not be charged by the Association through the courts.

Guy, I think you have a terrible, unfortunate, stressful situation on your HOA's hands. But from experience I think two problems will arise with your proposed efforts to fix it.

1.
If you and other members go to court, I think the Judge will say, "Why on earth did you not remove these directors? There are only nine of you. How much work would it be? Instead you let this fester until some $40,000 of legal bills accumulated. Sir/Madam, you had the power to stop this. Now you are wasting my time, the court's time, and taxpayer funds to correct it. Case dismissed, and you are lucky I do not assess you your opponent's attorneys' fees."

2.
Complaints about attorney practices go to your state's Office of Disciplinary Counsel. See
https://www.supremecourt.ohio.gov/DisciplinarySys/odc/complaint.asp . But from my study, such complaints go nowhere unless they are made by the attorney's client. You as a HOA member are not the client of the HOA attorney. The HOA is the client. In this instance, the two board members represent the client. If the two board members submitted a complaint to the Office of Disciplinary Counsel, then they might have a case. But obviously, the two board members do not have a problem with how the HOA attorney conducted him- or herself. On the other hand, if you want to send a message to your HOA attorney, go ahead and file a complaint. I doubt it will get any traction. But the HOA attorney will still be required to respond at some length, unpaid, and he or she will resent it.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By MelissaP1 on 01/31/2018 9:22 PM
The lawyer represents the ENTIRE HOA including the board. It's the board that hired them. The lawyer most likely doesn't know or care about the vote it took to hire them. They just know they were hired to represent the HOA in their case against a rule violator. How they got hired is irrelevant to the case. So it's not going to be part of the case.

This is also why I tell people to question ANY lawyer that says "I will do whatever you tell me to do". This is EXACTLY why I tell people to dump that lawyer or start questioning possible options. A lawyer will do what they are told only. The lawyer is ONLY getting the information from these 2 members. Do you think they are going to tell them they didn't get the proper approval to hire them?

The attorney represents the HOA as an entity but does not represent individual members or groups within the association. So, he is only the board's attorney in the sense that they are also association members.

The board is elected to represent the association and make decisions for them, so the attorney better care if the board are making decisions illegally or in violation of the governing documents. I'm not saying the attorney is going to ask every time if they followed proper procedures but if he knows that they did not and have no authority to make the decision, he is obligated to not follow their instructions.

I don't know Illinois law but it seems reasonable that a judge's decision might be at least influenced by the fact that the board acted in violation of their documents. Couldn't that potentially affect the court case? So, if the attorney's job is to get a positive outcome for the association, wouldn't he care?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

What Ben? The HOA is not a separate entity. It is the entity. Board members and all. Essentially this OP is part of the lawsuit against this other member like it or not. Although they did not bring it, they are part of it now. However, the ones who are responsible for having hired the attorney on the members behalf is the board.

I still don't see where this is the lawyer's fault. They are doing their job. The issue really is IF the HOA really had a case to go after one of their own? Was this violation necessary to sue to correct?

Former HOA President

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By MelissaP1 on 02/01/2018 3:46 PM
What Ben? The HOA is not a separate entity. It is the entity. Board members and all. Essentially this OP is part of the lawsuit against this other member like it or not. Although they did not bring it, they are part of it now. However, the ones who are responsible for having hired the attorney on the members behalf is the board.

I still don't see where this is the lawyer's fault. They are doing their job. The issue really is IF the HOA really had a case to go after one of their own? Was this violation necessary to sue to correct?

I didn't say SEPARATE entity. I agree that if I sue my HOA I am, in essence, also suing myself but that does not mean the HOA attorney will represent me as an individual if I sue the HOA or if the HOA sues me. He will represent the association as a whole. The same holds true with the board. The attorney's duty is to the entire association as a whole, not to a handful of members, even if they are on the board.

I also never said the lawyer was at fault, only that he ethically cannot ignore the board's breach of procedure and unauthorized decision, if that is what they did.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

PLEASE MELISSA, do not comment on areas you have no expertise or common sense. The attorney represents the Association, its corporation number, its tax ID number. They DO NOT represent the Board, not do they represent the individual members. If a legal suit is brought against the Board as a whole or an individual Board member, the insurance company's attorney will be the one representing the Board, not the association attorney.

If you have ever read an association's attorney letter on behalf of the association, it will start off, " As you know, this firm represents, xyx association".

GuyM1 (Ohio)
Posts: 318

Posted:

Judges ruling came in today and ruled in favor of the Defendant on all counts. One of the rulings was on the state law that board must vote unanimously to bring Litigation which they violated. Defendant won the 3 prong test also.

BenA2 (Texas)
Posts: 1,273

Posted:

And THAT is the only opinion that matters.

🎯 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