RBC AMENDS ITS COMPLAINT AGAINST WCI

Yesterday, August 22, 2016, RBC filed an Amended Complaint to its case against WCI.  We hope you will read this complaint so that you may better understand our actions (see the link to the Complaint at the end)).

At our hearing last month before Judge Rosman, WCI’s lawyers argued strenuously that the Pelican Landing Community Association (PLCA) must be made a party to this lawsuit. RBC’s original complaint specifically left out the Community Association because all of our claims are against WCI.  We contend that WCI can no longer: (1) annex/add more properties into Pelican Landing, (2) continue developer dead-hand control of our documents after turnover and (3) that turnover was actually reached before the end of 2009.  As a procedural matter, Judge Rosman “dismissed” our initial complaint without prejudice and gave us 20 days to amend it.

Because of WCI’s insistence that PLCA be joined in this action, PLCA is now named in the complaint as a nominal party. To clarify rumors, please understand that the only party RBC is seeking any remedy or cause of action against is WCI.   The PLCA board of directors can choose to participate to defend your rights – as we hope they do — or the PLCA Board can sit on the sidelines and have their attorney simply review the court filings as they are received. (see complaint paragraphs 7-8)

We are suing WCI because we believe their right to annex/add properties to PLCA expired years ago.  However, if anyone has doubts as to WCI’s intentions, note WCI’s turnover filing where they claim they can amend our documents in the future to annex more properties into PLCA and add two extra seats to the board for that expansion (find a link to WCI 7/22/16 Bylaws Amendment page 10 and PLCA Turnover Communication #20 at the end).   And they also have stated that the trademark of Pelican Landing is to be leased to us, not turned over immediately upon turnover. And, of course, most residents are aware of WCI’s pending application before the Bonita Springs City Council to build 4 hi-rise towers in Raptor Bay. That application states the new development would have full beach rights, overloading our private beach and our other amenities. WCI has also claimed they can annex/add Raptor Bay into PLCA. (see complaint paragraphs 37-38, 50-56)

We are suing to stop dead hand control – WCI contends it can control our documents until 2020 and veto any changes our new board might make. We contend that per our documents, dead-hand control ceased when WCI reached the 85% build-out of PLCA. (see complaint paragraphs 19-21, 32, 37-38)

We are suing WCI to clarify that the turnover percentage of 85% of properties in Exhibit A — which is needed for us homeowners to take control of Pelican Landing — happened before the end of 2009. Because turnover occurred before Cielo, Terzetto, and Altaira were built, WCI is responsible for the assessments/reserves for these units and perhaps more. (see complaint paragraphs 16-18, 29, 44-45)

As to any claim that adding PLCA as a nominal party in the lawsuit will cost us PLCA homeowners lots of money in legal fees, that is false. There was even a rumor of a possible special assessment for legal fees. But since no allegations of any kind are made against PLCA, there are no claims to defend and the board need not participate.

Recent legal opinions sent to residents by the PLCA Board of Directors fail to address the fact that the document that is controlling the determination of the 85% Turnover Trigger, Dead-Hand Control and Annexation is Exhibit A to the Declaration, not the DRI.  The opinions also fail to recognize that the 75th Amendment (the 2001 Settlement Agreement) was made three years after a Florida law was passed that forbade dead-hand control provisions in any HOA documents.

We hope this helps clarify many of the misconceptions and the inevitable variations of rumors that have spread.

Please click here to read the entirety of RBC’s Amended Complaint filed 8/22/2016.

Exhibits to the Amended Complaint: Exhibit AExhibit B-1, Exhibit B-2 , Exhibit B-3Exhibit CExhibit DExhibit EExhibit FExhibit GExhibit H

Please click here to read WCI’s 7/22/16 Amendment to our Bylaws

Please click here to read the PLCA Turnover Communication #20.

We thank the hundreds of you who have joined with us to protect our community and make sure the laws of Florida are followed.

Barbara Craig, Bruce Fennie, Bob Loos

RBC Officers and Pelican Landing Residents

CLARIFICATION OF RBC v. WCI LAWSUIT PLCA will be named as a “nominal party” only

Dear RBC supporters:

Today’s email from the PLCA board president to the full community has raised a lot of concern and discussion,  mostly based on misunderstanding of the actual facts of the matter. RBC asked its legal counsel to provide clarity on the matter for the community.  Below is the message our attorney provided, clarifying the meaning and reasoning for joining PLCA to the RBC v WCI law suit.

———- Forwarded message ———-
From: Jason R. Himschoot, Esq. 

WCI argued to the court that PLCA is a legally necessary party to the suit by RBC against WCI – legally referred to as an “indispensable party”.  The court agreed.  Accordingly, RBC will name PLCA as a party.  However, RBC is not going to allege a cause of action against PLCA and PLCA will only be named in the suit as a nominal party.  A nominal party is one that simply is entitled to receive notice of pleadings and proceedings in the action but does not face any liability for any of the causes of action alleged between the primary parties to the suit.  

 There are only a few paragraphs in the complaint that will be referring to PLCA in any material way.  That is, to identify that PLCA is the non-profit entity that was created to maintain and oversee the association affairs as recorded in the governing documents along with similar statements.  PLCA will not be required to file any pleadings or defend any allegations made. 

 Essentially, PLCA is being “invited” to the proceedings but is not obligated to participate.

UPDATE ON RBC v. WCI LAWSUIT

Dear RBC supporters:

As many of you who were at the recent court hearing will recall, WCI spent most of its oral argument stating that the Pelican Landing Community Association was a necessary party to the lawsuit.  As a result of WCI’s arguments, RBC has been given 20 days to amend the complaint to include PLCA as a party in the suit. In order to proceed, we now will add them as a party.  

 When the amended complaint is filed, RBC will post it on its web site.

UPDATE ON RBC v. WCI LAWSUIT

Dear RBC supporters:

As many of you who were at the recent court hearing will recall, WCI spent most of its oral argument stating that the Pelican Landing Community Association was a necessary party to the lawsuit.  As a result of WCI’s arguments, RBC has been given 20 days to amend the complaint to include PLCA as a party in the suit. In order to proceed, we now will add them as a party.  

 When the amended complaint is filed, RBC will post it on its web site.

FULL REPORT ON THE 7/20/16 PLCA BOARD MEETING: Two Critical Issues Need to be Highlighted

Dear RBC supporters:

At the start of the July 20, 2016 PLCA Board meeting, it was announced that minutes and recordings of this and future meetings would only contain motions and votes. Thus if you are not present at the meetings there may be no way to know what was discussed, what objections or suggestions were raised, or how voting positions were reached. Though it is clear that this meeting was recorded in full by the PLCA secretary, when we asked to copy the digital recording, PLCA provided a recording that had been altered to eliminate much of the meeting. Both of these changes are significant reversals of long practice. No reason, no debate and no clear vote were part of this change in procedure. It is particularly unfortunate that these changes came during this meeting as critical issues to us all and the future of our Association were on the table.

Fortunately, an independent recording of the entire meeting was made and a link to that recording appears below.

All owners should be informed about two critical issues summarized below:

First Critical Issue:  As most of you by now know, Manager Marie Martel has announced that she will be retiring as of mid­ February 2017. The Board has appointed a “committee” to make recommendations about finding a replacement and they are expected to report to the Board in August. Estero Councilman and Colony resident Bill Ribble spoke, encouraging the Board and committee to engage a professional search firm to find us the best option and one with “no baggage” from the past. (Of most importance to us here is that there be no connection to WCI or our current administration so that as a community we can move beyond and forward.) Ribble asked the Board if they had a position description and a list of criteria. The answer was no. He also noted he had seen no advertisement for the position. (Hear his remarks at minute 39:30 on the tape.)

ACTION: We urge you all to let the board know that you support having an independent professional search firm aid us in finding the best candidate. And, if it is decided that PLCA should be managed by an outside management firm, that you support having whomever we hire have no connection to WCI or to PLCA insiders. In other words, we want a new face with, as Ribble notes, “no baggage to the past”. 

Please send an email to or call the PLCA Board members and let your voice be heard. Their contact information is below:  

PRESIDENT:           Clyde Knowles          clydeknowles@gmail.com  (239) 390-2191
VICE PRESIDENT:  Shirley Withrington  shirley@withrington.net      (239) 221-8502
SECRETARY:          Jet Tipton                  jettipton@yahoo.com           (239) 425-5760
TREASURER:        John Tomlinson         plca4john@aol.com              (239) 949-7780

 

Second Critical Issue: With virtually no notice or time for review and study, WCI used the age­-old tactic of creating a “false sense of urgency” to force the PLCA Board to vote upon and sign a Resolution with vast implications to the future of Pelican Landing. This resolution was penned by PLCA’s attorney Tom Hart in discussions with WCI’s outside counsel (the same firm representing WCI against RBC’s challenge to the turnover plan). Last minute negotiations then occurred between Attorney Hart and WCI VP, Paul Erhardt, the night before the board meeting (which was just hours after that same morning’s court hearing/argument in RBC v WCI). This resolution was dropped on the Board sometime after 7 PM ­­ for the next day’s board meeting! None of us present had seen it. No one knew its contents or implications. Basically, WCI demanded a unanimous vote of the Board to support the resolution and they wanted it by Friday, July 22 … or else … WCI would not “fix” the incredibly convoluted and incomprehensible Board election process mandated in their late May “Turnover filing”. Note: This filing includes a claim that WCI can annex/add any properties it wants into PLCA and that WCI can create two additional Board seats post turnover for these newly annexed properties.

RBC is challenging WCI’s mandated turnover design as being in contravention of the design our Declaration requires for a post turnover Board; RBC is challenging WCI’s claims that it can annex/add properties into Pelican Landing and; RBC is challenging WCI’s claim that it can exercise control of our documents post Turnover.

You will see by listening to the excerpts identified below that residents voiced huge concern that this resolution was an effort to force the board to vote on the record in support of WCI’s turnover plan including annexation and adding more board seats.

Despite the many concerns expressed by Board member John Tomlinson and many of those present, three members of the Board, with Hart’s apparent urging, voted in favor of the resolution. Click this link to read the resolution 7/20/16 PLCA BOARD RESOLUTION

To listen to the discussion on this, click on the link below and fast forward:

CLICK HERE TO ACCESS THE RECORDING

  • Clyde Knowles explaining the resolution (beginning at minute 43:18)
  • The resolution no one had seen was read aloud (beginning at 51:00)
  • Attorney Hart’s explanation (beginning at 55:54)
  • John Tomlinson voiced multiple concerns (beginning at hour 1:00)
  • RBC President Bob Loos (retired attorney) voiced concerns about the WCI trap/set­up and their demand to sign this resolution (beginning at 1:01:20).
  • Anne Cramer’s remarks (beginning at 1:04). Including Hart’s defense of the so­-called commercial “at large seat” in the WCI plan.
  • Bill Ribble’s recommendation to table this resolution and make sure we know what we are doing (at 1:09)
  • Barb Craig’s comments urging caution, more discussion, more consideration and noting this looks very much like a WCI effort to pull the Board in as a party to the RBC law case. (at 1:10:25)
  • Ben Korbly raising various issues (at 1:12).
  • Attorney Hart defending WCI’s demand for the Board to vote for the resolution (at 1:17)
  • Board member John Tomlinson on why he will not vote for the resolution (beginning at 1hour: 19.49 and again at 1 hour: 30 min)
  • Board President Clyde Knowles voiced “trust in Hart” at 1:32:25). BUT NOTE: Hart had not provided the BOD with a written opinion nor did he provide a clear oral opinion during this meeting on what the Board should do and why).

Following this discussion, the resolution passes 3­ to 1. Hart notes for the record that even though it is not unanimous, as WCI demanded, the motion passed.

Finally, several important comments were shared during the Open Forum:

  • Attorney Hart explained that the marina purchase gave WCI 200 “beach use rights” for the “Raptor Bay Properties” and admitted that this give­away includes the  Weeks Property. (at 1:44:51)
  • Bob Loos asked to have a copy of the engagement letter with outside counsel and the Board admitted there is no such agreement. They also admitted that as yet the board has no legal opinion from the outside counsel but claimed they will have an opinion in writing from Hart and the outside counsel in mid­ August. (At 1:50:00)

From there to end of tape (about 10 min) many questions raised about various turnover issues.

RBC Fundraising Campaign Continues
The legal fight to maintain the viability of our community requires money and expertise. We have hired Richard DeBoest to represent us in this challenge but need your contributions to pay for it. Please send your check made out to “Goede, Adamczyk Trust Account” (with “RBC” on the memo line) to

Richard DeBoest, Esq
2030 McGregor Blvd
Ft. Myers, FL 33901

Please include your name, email and home address on a separate piece of paper.

All contributions will remain anonymous and any funds not used will be returned pro rata. Thank you for your support!

Why funds are needed

Status of 7/19/16 hearing: WCI’s attempt to Dismiss RBC’s Lawsuit

Dear RBC Supporters:

This morning, the Court heard oral arguments on WCI’s attempt to have RBC’s lawsuit against them dismissed.  The courtroom was small but filled with RBC supporters.  In addition, Pelican Landing Community Association Board President Knowles, Manager Martel and PLCA’s attorney, Tom Hart, were present although there was no comment from any of them.

What was most interesting is that the major focus of the WCI attorney’s argument was on insisting that the PLCA would have to be joined as a necessary party for the suit to go forward.  This was an odd argument given the fact that RBC’s case is entirely against the actions of WCI — specifically WCI’s claim of annexation capability, control of our Documents post turnover (dead hand control), and the post turnover Board design.  (You may recall the PLCA Board’s repeated statements that — all this is under WCI control — that WCI is driving the bus — and that the Board has no power over any of it.)

To most of us there it seemed as if WCI’s attorney was also trying to put the onus on the PLCA Board as the entity that should be sued.  In other words, it appeared they were trying to “throw the Board under the bus” and disavow WCI of any responsibility.  The facts of the case do not support this scenario as very clearly this case is against unilateral actions of WCI.  While the PLCA Board could have stood up to WCI’s actions; it did not, has not, and has made clear it will not.  That leaves RBC vs. WCI.

The other argument voiced by the WCI attorney seemed to be that RBC and, most particularly, Barbara Craig were challenging the 2001 Settlement Agreement.  This argument is incorrect since what RBC and Craig seek is the protection of the provisions in the Settlement Agreement; in other words, the enforcement of the Agreement.  As to Craig, the WCI attorney’s argument was really nutty: that since Craig did not own property in Pelican Landing in 2001, she could not challenge an agreement she was not party to.  Of course, the 2001 Settlement Agreement (Amendment 75 to our Documents) is part of the documents that every owner is protected by and responsible to follow.  There is no challenge to the 2001 Settlement Agreement anywhere in the RBC/ Craig complaint and this is a classic example of an opponent trying to change the facts of a case in order to get to some place that can help their side.  We do not think the judge will be confused by such tactics.

RBC’s response was that WCI failed to bring forth any valid basis to dismiss this action.  The underlying interests and property rights are those of the unit owners, the “real parties in interest”, and not the PLCA (an entity under Florida law established to operate the affairs of the community).  WCI is proceeding with actions detrimental to Pelican Landing property owners and the PLCA. Yet, despite their fiduciary relationship to the members, the PLCA’s officers and directors have failed to act. Therefore, RBC has a clear right to file suit to protect and benefit all unit owners.  Accordingly, RBC respectfully requested the court deny WCI’s “motion to dismiss” so that the matters before the court can proceed on the merits of the RBC’s complaint.

At the end of the hearing, the Judge stated that he would not give an immediate ruling from the bench but would take it “under advisement”.  This basically means the judge will consider the oral arguments and the briefs submitted by both sides and rule presently.  Precisely when “presently” will be we do not know but we will keep you informed.

Following are the briefs that were filed with the court regarding this motion to dismiss:

RBC’s Counter to WCI’s Motion to Dismiss                  (WCI’s Motion to Dismiss)

RBC Fundraising Campaign Continues: The legal fight to maintain the viability of our community requires money and expertise. We have hired Richard DeBoest to represent us in this challenge but need your contributions to pay for it. Please send your check made out to “Goede, Adamczyk Trust Account” (with “RBC” on the memo line) to:
Richard DeBoest, Esq
2030 McGregor Blvd
Ft. Myers, FL 33901
Please include your name, email and home address on a separate piece of paper.
Thank you for your support!

 

RBC Files Counter to WCI’s Motion to Dismiss our Lawsuit – Hearing Set for July 19th

It is time to focus on our lawsuit against WCI.

The links below will lead you to the RBC response filed this week by our attorneys opposing WCI’s motion (attempt) to dismiss our lawsuit. Please read them. We believe they will give you a better understanding of where the case currently stands.

RBC’s Counter to WCI’s Motion to Dismiss                  (WCI’s Motion to Dismiss)

In summary:  WCI is asking the court to dismiss RBC’s case against them by claiming that residents have no standing while also attempting to claim that the PLCA is required to be a party to the case.

  • Surely WCI is not saying that the unit owners of the properties that WCI or others sold to them within Pelican Landing have no standing or say in their very own property rights! Such an interpretation of the law of standing tears apart the very fabric of the fundamental property rights upon which this nation was built, not to mention the rights granted under our Governing Documents as well as Chapter 720 of the Florida Statutes.

RBC’s response is that WCI failed to bring forth any valid basis to dismiss this action.  The underlying interests and property rights are those of the unit owners, the “real parties in interest”, and not the PLCA (an entity under Florida law established to operate the affairs of the community).  WCI is proceeding with actions detrimental to Pelican Landing property owners and the PLCA. Yet, despite their fiduciary relationship to the members, the PLCA’s officers and directors have failed to act. Therefore, RBC has a clear right to file suit to protect and benefit all unit owners.

Accordingly, RBC respectfully requests the court deny WCI’s “motion to dismiss” so that the matters before the court can proceed on the merits of the RBC’s complaint.

The court will hear RBC’s response to WCI’s motion to dismiss next Tuesday July 19th in Fort Myers. We are optimistic the judge will grant RBC standing and rule in favor of the basic rights granted by our constitution that allow for the protection of the property rights of individual property owners. We will let you know the outcome as soon as possible.

 

RBC Fundraising Campaign Continues
The legal fight to maintain the viability of our community requires money and expertise. We have hired Richard DeBoest to represent us in this challenge but need your contributions to pay for it. Please send your check made out to “Goede, Adamczyk Trust Account” (with “RBC” on the memo line) to:
Richard DeBoest, Esq
2030 McGregor Blvd
Ft. Myers, FL 33901
Please include your name, email and home address on a separate piece of paper.
Thank you for your support!

Why funds are needed