Condo Owner Sues Colonial Manor West

LAW SUIT

   

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

CASE NO. 04-19092 (13)

ROBERT AIELLO,

Plaintiff,

v.

JUDITH STERN, GEORGE CONROY,

JUDITH RIVERA, ALYSIA FREEMAN, EILEEN BORMAN,
COLONIAL MANOR WEST APARTMENTS CONDOMINIUM
ASSOCIATION, INC., AND SUNRAE MANAGEMENT
SERVICES, INC.

Defendants.

                        /

SECOND AMENDED COMPLAINT

Plaintiff, ROBERT AIELLO, sues Defendants, JUDITH STERN, GEORGE CONROY, JUDITH RIVERA, ALYSIA FREEMAN, EILEEN BORMAN, 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, JUDITH STERN (“STERN”), is an individual, a resident of Broward County, Florida, and is otherwise sui juris.

4.           Defendant, GEORGE CONROY (“CONROY”), is an individual, a resident of Broward County, Florida, and is otherwise sui juris.

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

6.           Defendant, ALYSIA FREEMAN (“FREEMAN”), is an individual and is otherwise sui juris.

7.           Defendant, EILEEN BORMAN (“BORMAN”), is an individual, a resident of Broward County, Florida, and is otherwise sui juris.

8.           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, Fort Lauderdale, Broward County, Florida.  The CMW ASSOCIATION is a condominium association governed by Chapter 718,Florida Statutes.  AIELLO, as the owner of four (4) condominium units in Colonial Manor West, is a member of the CMW ASSOCIATION.

9.           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 7071 West Commercial Boulevard, Suite 2B, Tamarac, Florida 33319.

10.       At times material hereto, STERN, CONROY, RIVERA, FREEMAN[1] and BORMAN served as directors of the CMW ASSOCIATION, and may, from time to time, be collectively referred to as “CMW  DIRECTORS”.  STERN is presently and, at all times material hereto has been, the President of the CMW ASSOCIATION.  In such capacities, the CMW DIRECTORS owed a fiduciary duty and responsibility to AIELLO and the other owners and members of the CMW ASSOCIATION.

11.       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.

12.       Venue is proper in Broward County, Florida, in that:  (a) Defendants are either: i. individuals residing in Broward County, Florida; and/or ii. 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)

13.       AIELLO realleges and reavers the allegations set forth in paragraphs 1 through 12 above as though fully set forth herein.

14.       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.

15.       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.

16.       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.

17.       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”.

18.       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.

19.       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. 

20.       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.

21.       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.

22.       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."

23.       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.

24.       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.

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

26.       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.

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

28.       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, pre-judgment interest, court costs, attorneys’ fees pursuant to § 718.111(12)(c), Fla. Stat., and such other and further relief as this Court deems just and proper.

COUNT II

DECLARATORY JUDGMENT FOR ULTRA VIRES ACTS

(vs. Stern, Conroy, Rivera, Freeman, Borman and CMW Association)

29.       AIELLO realleges and reavers the allegations set forth in paragraphs 1 through 12 above as though fully set forth herein, and further alleges subject matter jurisdiction under Chapter 86, Florida Statutes.

30.       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, STERN, CONROY, RIVERA and FREEMAN, as directors 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. 

31.       At such purported meeting, the Board also considered and approved the substantial – and expensive – modification of the existing elevator.

32.       Despite the CMW ASSOCIATION’s conduct of official business on June 17, 2004, and the actions taken by the CMW DIRECTORS, 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 and the CMW DIRECTORS at such purported meeting was ultra vires.

33.       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 “F”), 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 “G”).[2]  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 three days prior to the meeting to indicate a vote would take place on the tenting.  See Composite Exhibit “H.”  Therefore, all action taken by the new Board at the March meeting was ultra vires.

34.                     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 and the unauthorized and unwarranted modification of the elevator, at a total proposed cost to the members of the CMW ASSOCIATION of nearly $32,000.

35.       In the meantime, the Board also levied a special assessment of $50,000 to pay for the foregoing, but the CONDOMINIUM ASSOCIATION and the CMW DIRECTORS have spent in excess of $14,000 of the $50,000 special assessment on items other than for what the special assessment was intended in violation of § 718.116(10) of the Condominium Act.  Some of these unauthorized expenditures went to current expenses and others to pay attorney’s fees incurred by the Condominium Association’s private attorneys after the Condominium Association’s insurance company already had provided counsel in January 2005, such private counsel not withdrawing from representation until March 30, 2005, pursuant to repeated demands by AIELLO and inquiries by other unit owners.

36.                     Also in the meantime, it has come to light that, while the CONDOMINIUM ASSOCIATION and the CMW DIRECTORS purportedly approved and agreed to sign Dead Bug Edwards general contract (Exhibit “I”), the CMW DIRECTORS failed to obtain, review, discuss, or approve at any of its meetings the separate, much more detailed contract Dead Bug Edwards requires each unit owner to sign before tenting could begin.  The separate contract (Exhibit “J”) has a negligence waiver and additionally requires each unit owner, among other things: (1) to vacate his home for up to 72 hours (3 days); (2) to acknowledge that the contract price agreed to by the Condominium Association and the CMW DIRECTORS did not include Dead Bug Edwards’ provision of any guard service during the time the building would be tented and vacant; (3) to turn off all their security systems, open all their windows and give their keys to the fumigator; (4) to remove all their plants and cars; and (5) to place all their food items and medicines in gas tight containers or throw them out upon return.  AIELLO and a number of unit owners have refused to sign this onerous agreement, especially when by the Board’s own experts, Bruce Edwards of Dead Bug Edwards and Scott Katzer, both agree this is not an emergency or “imminent danger” issue and there are alternative methods available.  Under these circumstances, because the separate contract was not approved by the CMW DIRECTORS, and because of the CMW DIRECTORS’ mismanagement of this issue, the CONDOMINIUM ASSOCIATION cannot force AIELLO and the individual owners to sign the separate agreement with Dead Bug Edwards.

37.                     Additionally, according to the CMW ASSOCIATION and the CMW DIRECTORS, plaintiff’s rights have been changed, and plaintiff has been affected by Bylaw and Declaration of Condominium changes including but not limited to:

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”;

B.    Bylaws: First Right of Refusal for the unit owner to purchase another unit  for sale, Article VII, Section 2, which the new bylaws purport to have abolished; and

C.    Declaration of Condominium: Article 9 (pages 11, 12, and 13) Sale, Rental, Transfer or Lease, which also attempts to abolish a unit owner’s first right of refusal.

38.           The Bylaw changes were made without 100% mortgagee approval and are ultra vires.

39.           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 “K”) and being further warned by Aiello (Exhibit “L”).

40.            In August 2000, AIELLO was damaged by this ultra vires action when he

attempted to match the purchase price of unit 305 but his offer was not allowed by the CMW ASSOCIATION because of the illegal bylaw change.

41.             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, its directors and the plaintiff in light of the Condominium Act for Florida, all of whom are proper parties to this action under § 86.091, Fla. Stat.

42.             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 in excess of $100,000 for the denial of AIELLO’s right to match the offer on unit 305, pre-judgment interest, a declaration of his rights and a declaration that the ultra vires acts are void and that the CMW ASSOCIATION and the Board members are prohibited from taking any action that would be ultra vires, that the acts taken in contradiction to the special assessment be declared such, that the court declare AIELLO’s right not to sign the separate contract that Dead Bug Edwards requires with the individual unit owners, 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 costs.

COUNT III

DEFAMATION

(vs. Stern and CMW Association)

           43.           AIELLO realleges and reavers the allegations set forth in paragraphs 1, 2, 3, 8, 10 and 12 above, as though fully set forth herein.

44.      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 “M”.  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.

45.            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 “M”, ¶ 3);

B. AIELLO  has “made demands that I sell my unit to them or ‘else’”.     (Exhibit “M”, ¶ 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 “M”, ¶ 6);

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

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

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

G. AIELLO has “made false statements to all of you that the barbeque is  ‘illegal’ under State law.” (Exhibit “M”, ¶ 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 “M”, ¶ 12).

            46.            Stern wrote a follow-up letter on April 5, 2005 (Exhibit “N”) 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 “N”, ¶ 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 “N”, ¶ 2).

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

47.     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 ”O”), but at the time, he knew no one in the business who was licensed in Florida.

48.             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.

49.             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.

            50.       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. 

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

           52.            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  this _____ day of April, 2005.

                                                                             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] Freeman resigned as a CMW Director effective the Board of Directors meeting conducted on August 30, 2004.  Without a legal vote, BORMAN was appointed a Director and Vice-President.

[2]  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 action to be taken.  Without her as a member and present, there could be no action taken at the 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. 


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