Cedar Brook association dispute leads to lawsuit
From our weekly issue dated December 16, 2009
A series of disputes involving the Cedar Brook Estates subdivision on Laurel Road in Cave Junction has led to a lawsuit filed in Josephine County Circuit Court.
The suit, filed by Grants Pass attorney Mark Lansing, lists James Walmsley as the plaintiff.
Lynn Constantino, Gale Eastwood, Kenneth Bateman, David Evans, Robert Puntney and John Does are listed as defendants individually and as “invalidly elected directors and controllers” of the Cedar Brook Homeowners Association, Lansing wrote.
According to the suit, a declaration of covenants, conditions and restrictions for the subdivision was recorded with the county on Nov. 5, 2004.
“A dispute has developed between the above plaintiff and defendants regarding the interpretation and enforcement” of an article in the declaration pertaining to quality of construction, Lansing wrote.
The article in question states that future improvements for the homes will be consistent with initial improvements in terms of quality construction. However, issues have arisen regarding the foundations of those homes.
“Plaintiff contends that this article violates Oregon law in that the ‘initial improvements in terms of quality of construction’ fell below Oregon State Building Code standards, and therefore future improvements cannot be consistent with the initial improvements in terms of quality of construction because those initial standards were legally insufficient,” Walmsley’s attorney wrote.
A second dispute listed in the lawsuit involves the “validity of defendants’ claimed election as directors and controllers of the Homeowners Association.”
“Plaintiff contends that said election was not valid or effective for many reasons,” Lansing wrote.
As of Aug. 5, Lansing wrote, the “validly elected directors” of the home owners association were Walmsley, Lynne Hval, Ron Atteberry, Constantino and Bateman.
“At that time, those directors held a meeting, and voted 4-0 to remove defendant Constantino as president of the board of directors, with Constantino failing to attend,” Lansing wrote.
A meeting was held on Aug. 15, in which the defendants were elected to the homeowners association board of directors.
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“Many of the votes that ostensibly constituted a quorum on August 15, 2009, were cast by proxies and not filed with then-secretary Lynne Hval, and therefore were not authorized” under the bylaws, Lansing wrote.
The suit also claims that written notice of the meeting in which the defendants were elected to the board of directors was not hand-delivered to the mailing addresses of each lot in the subdivision.
Other issues with that meeting also were identified in the suit.
“Owners or lots not validly annexed into the planned community were allowed to vote when they had no entitlement to do so,” Lansing wrote.
Another dispute listed in the claim regards a Declaration of Annexation filed Aug. 14 with the county. That declaration added a second phase to the construction of the planned community.
The lawsuit states that Walmsley seeks declaratory judgment that future improvements for the subdivision not fall below standards; the annexation was invalid; and that defendants are not the validly elected directors and controllers. Also, that a new properly notified board of directors meeting must be held and that an appointed arbitrator shall preside to validly elect directors and officers for the homeowners association.
Walmsley also is seeking to recover attorney fees, Lansing wrote.
“Any cost and attorney fee judgment should be entered against defendants in their individual capacities because they were never validly elected and are not authorized representatives of Cedar Brook Homeowners Association,” according to the attorney for the plaintiff.
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