Christopher is filing the following Verified Complaint in court today:
CHRISTOPHER M. NEMELKA
224 W. Garden Park
Orem, Utah 84057
Telephone (801) 870-1301
Pro Se Plaintiff
IN THE FOURTH JUDICIAL DISTRICT COURT
IN AND FOR UTAH COUNTY, STATE OF UTAH
CHRISTOPHER M. NEMELKA, an individual,
GARDEN PARK CONDOMINIUMS HOMEOWNER’S ASSOCIATION, INC., a Utah Non-profit corporation, TOTAL PROPERTY MANAGEMENT INC., a Utah Corporation, MILLER HARRISON LLC, a Utah Limited Liability Corporation, TYLER LA MARR, an individual, RICH WELLS, an individual, LARRY GOFF, an individual, SERGIO LUCERO, an individual, JENNIFER CARTER, an individual, MICHAEL ZAUNER, an individual and JOHN DOES 1 through 10, individuals.
Case No. 180401200
DEMAND FOR JURY TRIAL
COMES NOW, Christopher M. Nemelka, the pro se Plaintiff in the above entitled matter, and complains as follows:
JURISDICTION AND VENUE
- This Complaint arises under the statutory and common law of the State of Utah.
- This court has subject matter jurisdiction pursuant to UCA 78B-5-102(1)
- Venue is proper under UCA 78B-3-307
- I am over the age of 21.
- Plaintiff Christopher M. Nemelka (hereinafter “I / Me”) is an individual who is a resident and citizen of the State of Utah.
- Defendant Garden Park Homeowners Association, Inc. (hereinafter “HOA”) is a Utah Non-profit corporation set up for the condominium project known as the OAKCREST A CONDOMINIUM PROJECT (hereinafter “Garden Park”) located in Orem, Utah.
- Defendant Total Property Management (hereinafter “TPM”) is a Utah corporation located in Provo, Utah.
- Defendant MILLER HARRIS (hereinafter “MH”) is a Utah limited liability corporation where Defendant Tyler La Marr is employed. It is located in Salt Lake City, Utah.
- Defendant Tyler La Marr (hereinafter “La Marr”) is an individual who is a resident of the State of Utah and is employed as an attorney for Defendant MH.
- Defendant Rich Wells is an individual who is a resident of the State of Utah. Rich Wells (hereinafter “Wells”) is employed by Defendant TPM and is the Managing Agent of Garden Park.
- Defendant Larry Goff (hereinafter “Goff”) is an individual who is a resident of the State of Utah. Goff is currently the Treasurer of the Defendant HOA.
- Defendant Sergio Lucero (hereinafter “Lucero”) is an individual who is a resident of the State of Utah. Lucero is currently the Vice President of the Defendant HOA.
- Defendant Jennifer Carter (hereinafter “Carter”) is an individual who is a resident of the State of Utah. Carter is currently an appointed director of the HOA.
- Defendant Michael Zauner (hereinafter “Zauner”) is an individual who is a resident of the State of Utah. Zauner is currently an appointed director of the HOA.
- Defendants John Does 1 through 10 are persons as yet unknown to me who acted individually or in concert with the above-named Defendants, and will be incorporated herein as information becomes known to me.
- This case arises from my involvement with the Garden Park Homeowners Association, Inc. (“HOA”); its Directors, namely Defendants Larry Goff (“Goff”), Sergio Lucero (“Lucero”), Jennifer Carter (“Carter”), and Michael Zauner (“Zauner”); its contracted property management company Defendant Total Property Management (“TPM”) and TPM’s agent and the HOA’s designated property manager, Defendant Rich Wells; and the HOA’s attorney Defendant Tyler La Marr (“La Marr”) and his law firm MILLER HARRISON (“MH”), as well as John Does 1 through 99, who might become part of this case as the discovery process of this case unfolds.
- The Defendants, each and severally, committed various malicious acts of an illegal nature involving collusion, defamation (both libel and slander), breach of fiduciary duty, and in the case of La Marr and MH, malpractice.
- The Defendants acts have irreparably damaged not only my standing in the community, my reputation, my company, and my relationship with other members of the Garden Park Condominium community where I reside, as well as in the surrounding local area in the city of Orem, Utah, but also the standing and reputation of my elderly mother who lives in a condominium unit I own at Garden Park.
- I have tried exhaustively to resolve the issues of this case with the Defendants in good faith, only to be ignored, mocked, abused, and intimidated. However, the Defendants’ actions have caused irreparable harm that can NEVER be repaired no matter what judgment a this court or a jury of my peers might grant in this case.
- According to the authority of the United States Constitution, the laws of the State of Utah, and the Bylaws incorporated as the bylaws for the Garden Park Homeowners Association, Inc., a Utah non-profit corporation, I am permitted to bring suit in the Utah courts for violations of the laws of these documents, statutes, and declarations.
- The acts described herein, constitute Legal Malpractice, Breach of Fiduciary Duty, and Defamation, both of libel and slander.
SPECIFICALLY FOR REFERENCE
- UTAH CODE OF JUDICIAL CONDUCT RULE 2.2, Impartiality and Fairness, states: “A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” COMMENTS:  Although each judge comes to the bench with a unique background and personal philosophy, and this particular case involves a lot of information about the LDS/Mormon religion, a judge, even if he or she is LDS/Mormon, must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question, or of the Plaintiff in this case.  When applying and interpreting the law, a judge may make good-faith errors of fact or law. Errors of this kind do not violate this Rule.  It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.
FACTUAL GENERAL ALLEGATIONS
SPECIFIC ALLEGATIONS BY PLAINTIFF
- I moved into the Garden Park community on or before April 2009. My wife and I lived in the basement of Ida Smith’s (“Ida”) condominium. Because Ida was one of the first owners at Garden Park (est. 1974), she purchased the developer’s Show Unit. Her unit’s basement was completely finished.
- Ida was one of the most popular residents of the Garden Park community. A largely LDS/Mormon community, most of the LDS/Mormon owners knew of Ida. She was a direct descendant of Joseph Smith, Jr., the alleged founder of the LDS/Mormon religion. Ida served as the President of Brigham Young University’s Women’s Studies. Ida’s best friends were prominent and prolific men and women in the LDS/Mormon culture. Utah Senator Orin Hatch (“Hatch”), the late Utah Senator Robert Bennett (“Bennett”), as well as and many LDS/Mormon high General Authorities were some of Ida’s best friends.
- I am an author and have had many books published. My books are analogous and symbolic, but religious in nature. Many of them deal with the LDS/Mormon faith.
- On or about July 2007, Ida found some of my books and read them. She shared the books with her friends, and even hand delivered a few of the books to Hatch, Bennett, and to other of her LDS friends. Eventually she was excommunicated from the LDS/Mormon Church for sharing my books.
- After my wife and I had moved into Ida’s basement sometime in April 2009, there were other units at Garden Park that became available for purchase. I purchased a few units over the proceeding years.
- I attended my very first Garden Park HOA meeting with Ida and my wife. Defendant Goff presided over the meeting as the HOA President. Goff’s first order of business was to open the meeting with a religious prayer. I immediately objected. I knew that giving a religious prayer at a public meeting was not only unethical, but against the rule of law pertaining to the fair and equal treatment of ALL unit owners belonging to the community association.
- Although there are 144 units at Garden Park, the HOA meetings were sparsely attended. At the first HOA meeting I attended with Ida, I could already feel a visceral discomfort in the air. I assume (and hope to prove this assumption by deposing the owners who were at the meeting) that the uncomfortable feeling was because Ida had been excommunicated from the LDS Church and the other LDS/Mormons thought it was because I had manipulated and deceived her into leaving the Church. I did not.
- After Ida was excommunicated, most of her LDS/Mormon friends shunned her. A few of her most popular and prolific female friends sent Ida a letter in which they announced that they could no longer associate with her. An LDS Apostle, Jeffrey Holland, spoke with Ida about me in a telephone conversation that Ida recorded. (This letter and recorded conversation will become part of the discovery in this case. They are needed to show causation of discrimination and defamation.)
- When I objected to Defendant Goff’s desire to say a prayer, some of the owners voiced their disgust with this objection and of me. But since this meeting, prayer is no longer part of the protocol used by the HOA board in conducting Open Meetings.
- Since that time, although I have personally only met a few other owners, rumor, innuendo, gossip and false and defamatory allegation about Ida and me spread throughout the community. An LDS/Mormon woman, Kristen Kenitzer (“Kristen” who doesn’t particularly like me, but will be called as one of the several hostile witnesses in this case) reported to her boyfriend (who is one of my acquaintances, but I hardly know Kristen) that her LDS Bishop had inquired about me specifically during a recent interview she was having with him about a completely different matter. Kristen was surprised and taken back that her Bishop brought up my name during her interview with him.
- After the meeting with HOA, and seeing the reaction of the LDS owners who were in attendance, and after seeing how the current board was running things and doing many illegal things, I decided to run for the HOA Board myself. During the campaign process, someone posted a picture of Ida and me on all the 144 doors at Garden Park. The picture’s caption read, in bold letters: “CRIMINAL, FELON!” Needless to say, I didn’t win the election, and I am NOT a criminal or a felon. The HOA Board did nothing about this malicious act.
- Owing to the obvious discrimination and prejudice of the LDS/Mormon owners living at Garden Park, I decided to hang low and not attend any more HOA meetings. To date, I haven’t attended any HOA meetings since 2013.
- Tragically, Ida Smith died in February 2014 from complications of an injury she sustained by tripping and falling on the curb at the local Post Office. The rumors spread throughout the community that I had murdered Ida to take over her condominium. Although these malicious defamatory statements were being spread throughout the community, I did not react and continued to maintain a very low profile.
- I had purchased 6 units at Garden Park in the same building where Ida lived. Ida deeded the rights to her condo to my wife and me many years before she died. In January 2016, the HOA Board conveniently passed an amendment restricting the number of units that could be rented out at Garden Park. I believe that the Board did this to stop me from buying other units, specifically so that I wouldn’t have a stronger voice in the association’s actions. Regardless of my ownership of numerous units, I still maintained a very low profile so as to not cause any problems with the LDS/Mormon owners in the community. Seeing that my presence and attempt at establishing real estate investments at Garden Park was causing problems, I sold all the units except the one where my elderly mother lives.
- While I owned the 6 units, I paid for new fences to be put around all four lower units. Each building has 8 units, four of which are lower and 4 of which are upper units. I spent approximately $15,000 for the new fences and landscaping of the common areas that had been neglected by the HOA for years. I simply did not want to deal with the HOA by demanding them that they fulfill the law in maintain the common areas properly. I did, however, ask the HOA’s permission to put in new fences and landscaping. Because the HOA didn’t have to pay for it, they readily agreed to allow me.
- According to our CC&R’s (Covenants, Conditions, and Restrictions) 11, “The condominium project including the common areas and facilities shall be managed, operated and maintained by a management committee…however, that said management committee may engage the services of a resident manager and enter into management contracts with a management firm. All improvements, including landscaping, will be maintained in a manner at least equal to the initial installation required by the plans heretofore approved by Orem City.” The negligence of the HOA Board in fulfilling its obligation in complying with this law constitutes ‘gross negligence.’ Since all of Garden Park was built in the 1970’s, few if any, renovations and updates have been done.
- Further, since the HOA has been around for 40 years, if the HOA had fulfilled its fiduciary duty and saved just $100 per unit, per year, the HOA Reserve Fund, which is mandated and regulated by law, would have $576,000 in it today. The members of the HOA Board have shown a ‘gross neglect’ in their duties towards the Reserve Fund which currently has far less than $100,000 in it.
- Our HOA had entered into contract with Defendant TPM on May 11, 2006. Defendant Wells is TPM’s Managing Agent for the HOA.
- According to the contract, the duties of the agent include; Collection of fees: take reasonable steps to enforce collection of all dues and fees; Manage property: use reasonable measures for the orderly management of the property, including use on-site personnel, periodic inspections, etc.; Repair and maintenance of property: agent shall keep the property in good state of repair and maintenance; Attend annual HOA meetings: meet with Officers as needed and assist Officers with agenda and budget preparation; take reasonable steps to enforce Association CC&R’s (Covenants, Conditions, and Restrictions), and instructions from the Officers; Payment of bills: from the Association operating account, Agent shall pay all regular and authorized bills and provide a monthly accounting statement to the designated Association Officer with appropriate supporting documentation; Tax forms: Agent shall assist Association in preparation of 1099 year end tax forms and make arrangements for preparation of the IRS 1120 H annual report; Bids: Agent shall obtain and review bids with Officers for services to be contracted.
- Apparently, hiring a property management company provided some level of comfort to the board, and to me as a homeowner assuming things were taken care of. In the Community Rules, homeowners are instructed as follows: “TO REQUEST REPAIR OR MAKE SUGGESTIONS: Requests and suggestions may be mailed to TPM (address above), or call Rich Wells at TPM, 801-375-6719.” Over the years, I had contacted Defendant Wells numerous times about pressing issues, sometimes very dangerous issues. Wells seldom responded. Defendants Wells and TPM have committed gross negligence and have breached their contractual fiduciary duty to me as a homeowner. (This is one of the causes of action is this case listed below.)
- Unfortunately, the grounds had fallen into a state of disrepair, nowhere near what the HOA was required by law to maintain. “All improvements, including landscaping, will be maintained in a manner at least equal to the initial installation required by the plans heretofore approved by Orem City.” (CC&R 11).
- Over the years, from my own experiences and hearing from other concerned owners, it was quite obvious that the HOA was ignoring many of the requests of the owners.
- A few of the owners took video at some of the HOA meetings. These videos show the way that the Board disregards the complaints of the owners and treats them unfairly, and sometimes with contempt. In one of the videos, Defendant Wells can be seen rolling his eyes at the concerned comments and inquiries of one of the owners.
- Again, I have not attended any of the HOA meetings since I lost an election to the Board because of the libelous publication posted on the 144 units. I knew my presence would only make things worse, so I avoided confrontation. Regardless, other owners recorded the meetings. The HOA Board was very uncomfortable with being recorded. (These recordings will be entered in this case as evidence.)
- During one of the taped meetings, my name was mentioned and defamed. I was accused of doing illegal things without the permission of the HOA, among other false and defamatory accusations. The Board did nothing to stop the defamation, although the law mandated that they do to avoid undue prejudice to a homeowner. (This evidence will become part of the discovery of this case.)
- Although I knew I was being defamed and discriminated against by the Defendants, each and severally, a maintained a comfortable distance so as to not cause problems. I maintained this distance until I became aware of one of the Board Directors’ efforts to stop the HOA Board from abusing the owners and treating them unfairly. Lynnette Cook (“Cook”), the HOA Secretary at the time, appeared to be the ONLY director trying to address and solve many of the owners concerns.
- The first time I became involved with Cook in her fiduciary role as a HOA Director, which concerned me personally as an owner, was when I contacted Cook and asked her to get permission from the Board for me to extend the fences between my unit another owner’s living in the same building. The other owners, Denton and Sydney Thiede (“Thiede”) gave me their statutory proxy and voting power to represent in the HOA, as they lived out of town and were renting out their unit. The Thiedes agreed to the fence extension.
- Because Cook felt that she had been treated illegally, maliciously, and abusively by ALL the Defendants in this case, she filed a lawsuit against them. Her lawsuit was filed in this court and listed as Case No. 180401185, in front of Judge Mc Dade.
- Because Cook and I share similar causes of action against all of the Defendants named in this case, and the fact that Cook was an intimate authority involved with the Defendants; and as Cook’s facts and allegations are relevant to mine; and as Cook will be one of my main witnesses against the Defendants, the following paragraphs of this Complaint, specifically paragraphs 52 through 150, come from Cook’s Verified Amended Complaint, paragraphs 54 through 152:
Beginning of Cook vs. HOA, Case 180401185, Amended Verified Complaint:
- As an appointed Director, I heard many complaints from homeowners about things needing attention. Many people had called TPM, only to be ignored. Some had been complaining for years. Our HOA was doing nothing about it.
- I began reporting complaints to our board. We would discuss things in our meeting, which Wells attended, asking him to take care of things. He would take notes, but the majority of issues were never addressed, month after month.
- I requested help through emails to the other Directors between our meetings. The procedure that had been followed was that, if three of the five other Directors approved the emails, we could proceed.
- According to our CC&R’s 11: “The condominium project including the common areas and facilities shall be managed, operated and maintained by a management committee”. That was the procedure we were using.
- According to our bylaws, Article I, Section 6, “by unanimous written consent of the committee: … (2) action may be taken without a meeting.” That means according to the law, that if we needed to vote on every action (including general maintenance issues) it would require a unanimous written consent. Some things that were approved were done with a unanimous written consent, but the majority, were not. The repair requests were either approved with less than a majority or not addressed, or never resolved.
- When I inquired into TPM and their responsibilities, Defendant Goff, Treasurer, who according to our bylaws, Article I, Section 4, was required to “have the custody and control of the funds of the committee, subject to the action of the committee” and when requested, “by the chairman so to do, report the state of finances of the committee at each annual meeting of the unit owners and at any meeting of the committee” and to “perform such other services as the committee may require of him” praised Defendants TPM and Wells saying how much easier it was since we had hired them. TPM was helping Goff with “his” job, but none of the rest of the Directors were receiving ANY help with fulfilling our fiduciary roles as Directors.
- The more I sought for help in remedying issues that were not being addressed, the more my concerns were ignored. The other Directors started getting more and more annoyed at me.
- While there were many smaller maintenance issues, things that could be resolved by a handyman or on-site manager, there were big safety issues as well. There were reports of balconies detaching, cement sidewalks breaking up enough that they were hazardous to elderly and handicapped residents, and most roofs needing replacing. These are bigger expenditures that would legally require a consideration of all unit owners at our Annual HOA meeting.
- When I first got on the board, one of the items addressed and unanimously voted on was a bid to get three of our roofs replaced for the price that other bids had charged for two. As we were entering winter, we took no action on this, even after a unanimous vote. When spring came, Defendant Lucero, the Vice-chairman, (who according to our bylaws, Article I, Section 4, in the absence of the Chairman “shall preside at all meetings of the committee and at all meetings of the unit owners,”) and I brought replacing the roofs back to the table. Nobody seemed to know what had happened to the bid.
- After repeated requests, I finally was able to track down the bid on my own and contacted the contractor in June 2018, just before our regularly scheduled HOA board meeting, which is always held on the third Thursday of the month. I asked the roofing contractor about the bid, which he said he would still honor if he could begin the project right away. He came to our meeting and it was voted on unanimously by the board, although illegally, to move forward on the project. The first week in July 2018, three of our roofs were replaced.
- According to our bylaws, Article IV, Section 1: “Each unit owner shall pay the management committee his pro rata portion of the cash requirements deemed necessary by the committee to manage and operate Garden Park, upon the terms, at the times, and in the manner herein provided without any deduction on account of any set-off or claim which the owner may have against the management.”
- Article IV, Section 2 states, “The cash requirements above referred to for each year or portion of the year, are hereby defined, and shall be deemed to be such aggregate sum as the management committee from time to time shall determine, in its judgment, is to be paid by all the owners of Garden Park then in existence to enable the committee to pay all estimated expenses and outlays of the committee to the close of such year, growing out of or connected with the maintenance and operation of such land and buildings and improvements, which sum may include, among other things…repairs and renovations to common areas and facilities…The management committee may, from time to time, up to the close of the year for which such cash requirements have been so fixed or determined, increased or diminished the amount previously fixed or determined for such year.”
- Therefore, it is the responsibility of the management committee to maintain the units, including their roofs, figure out how much it will cost the homeowners, and include these expenses in a budget presented to all the homeowners at the Annual HOA meeting.
- According to Utah Code, 57-8-7.5 (1)(c), the money used to replace roofs would come from our reserve fund. “’Reserve funds’ means money to cover the cost of repairing, replacing, or restoring common areas and facilities that have a useful life of three years or more and a remaining useful life of less that 30 years, if the cost cannot reasonably be funded from the general budget or other funds of the association of unit owners.”
- UC 57-8-7.5 (2) states: “Except as otherwise provided in the declaration, a management committee shall: (a) cause a reserve analysis to be conducted no less frequently than every three years. (3) The management committee may conduct a reserve analysis itself or may engage a reliable person or organization, as determined by the management committee, to conduct the reserve analysis.” UC 57-8-7.5 (4) goes on to describe what shall be included in the reserve fund analysis.
- We have 19 buildings in Garden Park, including the clubhouse. Almost all of them need new roofs. Some are in dire need, with shingles falling off regularly and littering the ground. When we got the bid for the roofs last year, we asked the contractor to give us a bid the three roofs that he determined were in the worst condition. His bid came to nearly $54,000. Upon studying our 2017 Garden Park Budget, I found that we had only budgeted $26,832 for Reserves/Capital Repairs. This amount of money is GROSSLY short of the amount that is needed to take care of the things needing repair at this point.
- After paying $54,000 to replace ONLY three of the MANY roofs needing replacement at Garden Park, we were already over budget approximately $21,432. This didn’t allow for the sidewalks that needed repairing, which has been a long-standing safety issue with an estimated cost of $4500-4800. Nor did it allow for detaching balconies and other very important and necessary repairs.
- Obviously, not only had the HOA not “managed, operated and maintained” “the common areas and facilities”, but we had also not performed an accurate “reserve analysis” as described in UC 57-8-7.5.
- Not knowing or understanding the laws at this at the time, and trusting that Defendants Goff, the Treasurer, and Wells and TPM, the property management, that they knew the laws, I assumed that we had the money in the budget to cover this because it had already unanimously been approved last November, I pushed this through while the weather was still good.
- UC 87-8-7.5 (9)(a) states: “Unless a majority of the members of the association of unit owners vote to approve the use of reserve fund money for that purpose, a management committee may not use money in a reserve fund: … (i) for any purpose other than the purpose for which the reserve fund was established.”
- I didn’t know, at the time, what our reserve fund was supposed to be for, as the money in there was not adequate to do very much. We certainly did not get approval from any members of the association owners to spend tens of thousands of dollars replacing the roofs.
- On or about March 2018, we had a homeowner, Shirleen Beland, become disgruntled because of a misunderstanding when cleaning up what she assumed was “her garden area,” when it was in fact part of the common areas. She threatened lawsuits. The board spent extensive time emailing her and listening to her demands. Individual board members had conversations with her as well. Things were resolved and were peaceable.
- In our board meeting on April 19, 2018, Tiffany Bierma (hereinafter “Tiffany,” who was our sitting HOA board President at that time, but has since resigned), put in a request to extend her fence. Although I was shocked and surprised, she proceeded to point out that other fences had been extended. I saw that the board was coming to agreement with her. At that point, my focus turned to the fairness of the decisions we were making as a Board.
- In my thoughts, if one person should be allowed to extend their fence, then all should, and the size of the fence they could extend to should be the size that had been set by precedence. My only thoughts were fairness for all.
- Extending fences was approved at this meeting, but in all practicality, when some homeowners requested their fences extended, it was a fight to get it approved. According to UC 57-8-8.1 (1)(a) “a rule shall treat similarly situated unit owners similarly.” Some people on the board didn’t seem to agree with this law.
- Trying to be transparent and fair to all homeowners, I shared with other homeowners, who were requesting the extensions, the communications of the board regarding its decision. This is when the other members of the Board began to act in collusion and exclude me from communications.
- Tiffany asked people in her building to sign permission for her to extend her fence. One owner, Terri Moser (hereinafter “Moser”) emphatically disagreed. Moser wrote emails and threatened to sue us. The board responded to her emails and tried to appease her. Moser came to our regularly scheduled board meeting on June 21, 2018, and was given a lot of time to share her grievances. Further, Moser was offered to have a special meeting with the board to address her concerns privately.
- After researching the laws, I have found that according to UC 57-8-7 (3) “the undivided interest of each unit owner in the common areas and facilities as expressed in the declaration shall have a permanent character and shall not be altered without the consent of two-thirds of the unit owners expressed in an amended declaration duly recorded. (4) “The common areas and facilities shall remain undivided and no unit owner or any other person shall bring any action for partition or division of any part thereof,” (5) Each unit owner may use the common areas and facilities in accordance with the purpose for which they were intended without hindering or encroaching upon the lawful rights of the other unit owners.” We didn’t follow any of these laws. We had no legal right to approve any fence extensions.
- On June 19, 2018, Leslie Ripley (hereinafter “Ripley”) resigned from her position on the board. This left us with a vacancy on the Board. The bylaws state that we must five (5) Board members.
- On June 23, 2018, I submitted the name of another owner, Laura Saiki (hereinafter “Laura”), to replace Ripley. Defendant Lucero promptly replied, “Not interested.” Tiffany suggested Jennifer Carter (hereinafter “Carter”) because she has been on the board before. Immediately, Defendant Lucero replied, “I’ll vote for Jennifer.” I asked for her qualifications, other than having been on the board before, and suggested my husband, Damon Cook who is also very well qualified. Defendant Goff made the third vote for Jennifer and informed me that we were not allowed to have a husband and wife on the committee at the same time. I asked where Goff got that information and he never responded.
- I have since searched the bylaws, the Utah Condominium Act and other Utah laws and have not found anything supporting Defendant Goff’s statement. Nobody gave me any qualifications for Defendant Carter but I was outvoted.
- I have since found out that our bylaws state in Article I, Section 6 that “action may be taken without a meeting” IF “by unanimous written consent of the committee,” which did not happen.
- On July 2, 2018, a homeowner, Mignon Nicol (hereinafter “Nicol”) wrote an email to Defendant Goff that Goff forwarded on to the board. It was about an “aggressive dog at Garden Park”. In the email Nicol made accusations of a dog and claimed that she didn’t know the owner of the dog but that she was friends with “Toni” (referring to Tony Saiki [hereinafter “Tony”] a renter at the park) and accused him of being the one people were having problems with different dog attacks.
- I know Tony, so I forwarded the email on to him and talked to him about it. He was outraged as he had been wrongly accused and demanded to meet with his accusers and the board to set things straight. Tony asked me to pass on that information. I sent five different emails requesting that the board meet with Tony to resolve the situation before it got out of control. Tony also sent one.
- Although we got a response from Tiffany questioning the situation, Carter was the only one who agreed to meet with him. We could never get any other members of the board to respond to Tony’s request as they had done to Moser’s request for a special meeting.
- Since the fence extension requests in April, it was getting increasingly difficult to get any responses from other members of the committee, making it more and more difficult to get anything done.
- After a particularly difficult and frustrating Board meeting on June 19, 2018, my husband, Damon (hereinafter “Damon”) and I submitted a bid to the board to take over the yard work that included being the full-time, on-site managers doing the smaller repairs and maintenance. We received no response from anyone.
- July 7, 2018 a regularly scheduled walkabout took place for the Board to meet together and inspect the grounds. At this point, almost all of my attempts to communicate with the board were being ignored. Defendants Goff and Lucero were the only ones who showed up for the walkabout. I asked Defendant Goff and Lucero if they would like for me to invite Damon on our walkabout so that we could point out some of the things we would take care of according to our bid, if accepted. Goff told me that they would not even look at the bid until I resigned. He said that a lot of homeowners had stated that they would sue the HOA if they allowed us to do that work because of “conflict of interest.”
- I have since looked up the laws concerning Goff’s statement of authority. The law states in UC 16-6a-8 (b)(i), it is not considered a conflict of interest if “(A) the material facts as to the director’s relationship or interest and as to the conflicting interest transaction are disclosed or are known to the board of directors or the committee; and (B) the board of directors or committee in good faith authorizes, approves, or ratifies the conflicting interest transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors are less than a quorum; (ii)(A) the material facts as to the director’s relationship or interest and as to the conflicting interest transaction are disclosed or are known to the members entitled to vote on the conflicting interest transaction; and (B) the conflicting interest transaction is specifically authorized, approved, or ratified in good faith by a vote of the members entitled to vote thereon;”
- Not yet knowing the law at the time of the walkabout, I asked Defendant Goff if he and Defendant Lucero would at least look at the proposal, and if they were interested in hiring us, they could make the provision that they hire us only on the condition that I resign for the board. Goff immediately responded, “No!”
- My husband and my only interest in bidding the job of maintenance was to get things done around the community that were not being addressed despite the repeated requests of many of the other homeowners.
- I proceeded to talk to the Board about my frustrations at not being able to get anything done and how the other directors would not respond to any of my emails or in other ways communicate with me. I got no results from the conversation.
- Defendant Goff informed me that the regularly scheduled meeting in July, 2018, was cancelled. This was the first I’d heard of it. This decision was made behind my back, in collusion, without a unanimous vote. I adamantly objected. I begged to reschedule it. Defendant Goff emphatically told me, “No!”
- Upon arriving home, I broke down in tears and told Damon about the encounter. My husband went outside and met with Defendant Goff to ask him about who had said they would sue the HOA if the board looked at our proposal. Goff refused to tell him and eventually admitted that nobody did. I arrived at about this point of time in the conversation. As Damon tried to explain and clarify the purpose of our proposal and how we thought it would benefit the community, Goff said that “the reason the landscaping isn’t done right is because they are mostly all Hispanics who don’t know the difference between a weed and a flower.” At this point, both Damon and I became defensive because of his racist remark. We explained that it had nothing to do with race and that it only had to do with experience.
- During this conversation, Defendant Goff also admitted that the board was having “secret meetings” without me because I had “breeched their confidence.” Goff then stormed off.
- Later that afternoon, on July 7, 2018, Tiffany resigned. We now had two vacancies on the Board. The remaining directors were Defendants Goff, Lucero, and me.
- On July 8, 2018, Christopher Nemelka (hereinafter “Nemelka”), a homeowner, requested a special meeting with the board to discuss his concerns and complaints.
- On July 9, 2018, Goff responded that he didn’t think we should meet with Nemelka because of his threats of a lawsuit. I begged them to reconsider and meet with him to avoid the lawsuits. I tried many times to get them to concede. We had heard other complaints from other homeowners threatening lawsuits and had agreed to meet with some of them. But Goff was adamant that he would not meet with Nemelka. Lucero never responded to anything I said and Goff would not respond again about Nemelka at that time.
- Frustrated, I met with Defendant Wells, of TPM. Wells advised me not to deal with Nemelka and that we should call an attorney.
- As we had never had to call an attorney before, and the Board had received cooperative communication from Nemelka seeking to meet to avoid a lawsuit, along with the fact that Nemelka was simply asking to be heard, I strongly disagreed with the Defendants’ opinion not to meet with Nemelka. I pleaded with all on our Board, including Defendant Wells, to please meet with Nemelka.
- One of Nemelka’s complaints was that we didn’t have a full functioning board according to the bylaws. Nemelka cited, Article I, Section 1, that our HOA “shall be managed by a management committee consisting of five (5) unit owners to be selected by the unit owner”.
- Although I wasn’t elected by the people at our general election, I was appointed by election of the Board to the board by the other board members when one of our board members resigned. Ripley was also appointed by election when another Director resigned. Now that we had two more resignations, Defendants Goff and Lucero were refusing to even suggest anyone to fill these positions, and they would not accept any of my suggestions.
- Nemelka offered his name as someone that could be appointed. He is well qualified, knows and understands the law regarding HOA’s, and has served on other HOA’s. Nemelka’s request was completely ignored.
- Being ignored, Nemelka DEMANDED to meet with the Board and set up a date and time when we could all get together and resolve our issues. Nemelka let the Board know that he would be available for a meeting in our Clubhouse on July 9, 2018. Defendants Goff and Lucero completely ignored Nemelka’s and my requests to meet with him.
- On July 9, 2018, I got an email from Nemelka stating that he was going to sue us in response to an email he received from Goff. Goff’s email to Nemelka stated: “Mr. Nemelka, The Garden Park committee is not planning to have a special meeting with you at the clubhouse this evening. We can put you on the agenda for our next regular board meeting on Thursday, August 16, at 7:00 pm at the clubhouse.”
- As mentioned, Goff had illegally and unilaterally cancelled the Regularly Scheduled HOA meeting to be held on July 19, 2018.
- On July 9, 2018, I met with Christopher Nemelka and other concerned homeowners about their complaints. I was the only member of the board willing to attend. The meeting was videotaped.
- A chief complaint that Nemelka had was that we were doing things illegally as a Board. Nemelka graciously showed me how to study the laws to learn about our responsibilities and began pointing out things he saw that we were doing wrong and completely illegal.
- As I studied the law, I discovered that Nemelka was right, on almost every point. As an HOA Board we were breaking the law in many ways, much of which is listed above. I tried to get Defendants Goff and Lucero to meet with Nemelka so that we could discuss these things at length. I was completely ignored, and as mentioned, advised by Defendant Wells that we shouldn’t meet with Nemelka.
- Feeling unable to do my job in any way, shape or form, and in an attempt to prevent any further lawsuits, on July 11, 2018, I filed a lawsuit myself, pro se, asking for an emergency hearing seeking injunctive relief. I was hoping that upon filing my lawsuit, it would send a message to the Board that we needed to start abiding by the law. I asked the Court to order the appointment of the other owners who were able and willing to serve on the Board, Nemelka and Laura, to fill the board so that we had a full board and could keep functioning, or that the Court would intercede and put the HOA under Receivership since we were no longer legal or functional.
- On July 13, 2018, I received some email correspondence between Nemelka and Defendant La Marr. La Marr agreed to talk to me. When he called, although I didn’t agree or approve of there being any attorney involved at all in any way, I did believe that he had an interest in resolving this for both parties. He presented that he represented the HOA. To my understanding, that meant that he had at least as much interest in representing me as the other two Board members.
- Defendant La Marr and I discussed a few things that led me to believe that we might be able to come to a resolution. La Marr told me that I had recourse if the other board members refuse to respond to me, but that he could not discuss that with me alone; that it would have to be in a meeting with all of us.
- Later that day I received email correspondence from an owner, Moser. She was responding to the special meeting she had attended with other unhappy homeowners. Moser wrote in part, “ It bothers me to find out that [Nemelka’s] fight for a property manager is in part due to him wanting that position to benefit his company. That is a conflict of interest and I have issues with that. I am upset that what was present last night isn’t the total truth.”
- Moser’s email was very upsetting to me because it was obvious that there was a lot of gossip going around that had turned into falsehoods and defamatory statements about Nemelka and me. Moser was referring to a bid that my husband and I had given the Board to consider for yard work at Garden Park. It had nothing to do with Nemelka. The only people who had received our bid were the board members and Defendant Wells of Defendant TPM.
- All the while, I was studying every waking moment trying to learn the bylaws and Utah laws pertaining to condominiums. I was able to figure out how I could file a Notice of Action according to UC 16-6a-813 (1)(a), which states: “Unless otherwise provided in the bylaws, any action required or permitted by this chapter to be taken at a board of directors’ meeting may be taken without a meeting if all members of the board consent to the action in writing.” This is in agreement with our bylaws.
- The rest of this section goes on to explain how that is to be done and that there are three responses that are possible from the other board members according to UC 16-6-813 (2)(a)(1)(A): “signs a writing for such action; or (B) signs a writing against such action, abstains in writing from voting or fails to respond or vote; and (ii) fails to demand in writing that action not be taken without a meeting.” (c) “Action is taken under this Subsection only if at the end of the time stated in the notice transmitted pursuant to Subsection (2)(a): (i) the affirmative votes in writing for action received by the nonprofit corporation and not revoked pursuant to Subsection (2), equal or exceed the minimum number of votes that would be necessary to take such action at a meeting at which all of the directors then in office were present and voted; and (ii) the nonprofit corporation has not received a written demand by a director that the action not be taken without a meeting other than a demand that has been revoked pursuant to Subsection (2)(e).”
- The more law that I learned, the more convinced I became that Defendant La Marr was not a legally hired attorney. The Board had not followed any of the provisions required to make that decision. This empowered me to understand that we could solve these problems ourselves, now that I knew what the law allowed me to do to get their attention and force them to respond to me.
- On July 14, 2018, I began writing Notices of Action to try to get things resolved. Defendants Goff and Lucero did not respond to any of the Notices of Action. Just before the time for that the act would become lawful without any response from Defendants Goff and Lucero, Defendant La Marr responded for Goff and Lucero by email. La Marr wrote: “Good afternoon Lynette, another board member has asked me to respond to your notice of action and let you know that they do not approve taking action without a meeting and that you do not have authority to presume their consent for failure to respond. This response applies to all actions proposed this morning and throughout the day. Additionally is it unreasonable to give such a short window of time to respond especially when notice I given on a weekend.”
- Because of La Marr’s response, now representing the other Board members, Goff and Lucero, personally, as well as the HOA, I knew I had figured out how to legally force Goff and Lucero to respond to me. From this point forward, I tried to work with my unresponsive, uncooperative fellow board members through Notices of Action.
- Because I didn’t believe that the attorney, Defendant La Marr, was hired legally, as explained above, I didn’t feel I needed to respect his responses. Besides, he had told me that he wasn’t representing Goff and Lucero individually, that he was representing the HOA and had its best interests in mind. Unless, in collusion, Defendants Goff, Lucero, and Wells had hired him at this point, it seemed unreasonable and unethical to me that the attorney, Defendant La Marr, would give Goff, Lucero, and Wells legal advice and not give me the same. I began to feel ALL of the Defendants’ deep animosity towards me.
- Every day I spent most of the day and well into the night studying the laws so that I could understand them. I cried profusely and often and have not been able to sleep.
- I can’t afford an attorney. I clearly was not receiving fair representation from the attorney who I thought should have been working with us all, if he had truly been hired legally. I needed to know the law for myself.
- On July 15, 2018, we held a special meeting according to a Notice of Action that Lucero and Goff didn’t respond to, therefore making the act of meeting legal. During the meeting, over which I presided, I moved forward with appointing new members to our board and firing the attorney. We recorded the entire meeting for evidence.
- On July 16, 2018, I mailed out a Notice of Action Taken to all the homeowners to notify them of the changes. I also filed a motion to dismiss my court case as I found the remedy for my causes of action within the law.
- As was expected, Defendant La Marr didn’t approve. He kept intervening via email to tell me he disagreed with my actions, but didn’t, and couldn’t, provide any evidence that was convincing to me that I had acted outside of the law.
- Defendant Goff emailed me that we would discuss things at our meeting in August. I still had not received ANY notification as a homeowner, or as a director, nor had any of the other homeowners, that the regularly scheduled meeting for July had been cancelled, nor had we had a meeting or a real discussion about it and certainly not a vote. There was nothing done to justify Defendant Goff’s decision to cancel it alone and only telling his friends.
- I informed Goff of my feelings and informed him that if he was going to be out of town, he could call in on speakerphone to still participate, this according to the law.
- Later that same day, Nemelka made an amazing peace offer in an effort to try to resolve all of this. Nemelka agreed to pay all of the attorney fees to date incurred by Defendant La Marr, even though La Marr was not legally hired. Nemelka also agreed to buy a new HVAC unit for the Clubhouse if we would agree to appoint him to the board for the next two months until the election and abide by the law. In my opinion, knowing Nemelka as I do, I believed his offer was an incredible good faith effort to resolve all legal issues. Nemelka had previous to this sent the Board a 90 day NOTICE, according to law, demanding that the Board comply with the law. This was Nemelka’s ONLY demand: COMPLY WITH THE LAW.
- Before writing out a Notice of Action incorporating Nemelka’s proposal and offer, I apprised Defendants Goff and Lucero of the offer. Goff wrote back that he would accept the HVAC under his (Goff’s) conditions and that Goff would let Nemelka pay the attorney fees. When I sent out the full Notice of Action with all parts included, neither Goff nor Lucero responded, as usual. Although their refusal to respond means implied consent to the act listed in the Notice of Action, according to the law, due to their lack of respect for Nemelka, and also due to the advice that Goff, Lucero, and Wells were receiving in collusion with Defendant La Marr, Nemelka backed out of the offer, because according to what he told me, he realized that illegal things were still occurring.
- On July 17, 2018, I sent an email out to Defendants Goff and Lucero asking for any items they wanted on the agenda at the upcoming July HOA regularly scheduled meeting. (Still no notices were sent out to homeowners that Goff had unilaterally cancelled the meeting without the full consent of the Board.)
- Subsequently, I wrote notices to remind the residents of our regularly scheduled meeting on July 19, 2018 and had some friends help me distribute them from door to door. Along with the notice of the meeting, I attached a copy of the generous offer that Nemelka had made to the HOA about paying legal fees and paying for a new HVAC for the Clubhouse.
- The next day, July 18, 2018, I got an email from Wells, with an attachment that was posted on every door (144 units) in Garden Park, and emailed to all the homeowners as well, that was very defaming (libelous) and damaging to me. It stated many lies and false statements.
- I also found out later that Defendant Goff had gone door to door and had spoken to many homeowners and told them very defamatory (slanderous) things about me and Nemelka.
- On July 18, 2018, I received an invitation, sent by Defendant Goff, to attend a Special Management Committee Meeting held Pursuant to Article 1, Section 6 of the bylaws. The meeting was to be held the next day, July 19, 2018 at 6 PM. It was a telephone conference. I responded that I would be there.
- The meeting that was called was done properly and according to law. The Treasurer, Goff, was ostensibly asked by the Vice President, Lucero, to conduct the meeting because only the Vice President could be the presiding authority according to the law, because our President had resigned.
- However, the first person to speak was Defendant La Marr. It was evident that collusion had taken place at the bequest and advice of La Marr.
- A legal Board, according to the bylaws, Article I, Section 1, that states: “SHALL be managed by a management committee consisting of five (5) unit owners.” At the time of this meeting, there was only three (3) directors. Defendant La Marr had advised that another bylaw held precedence over this first one: According to that bylaw, Article I, Section 3, “In case of any vacancy in the management committee, the remaining members thereof MAY elect a successor to hold office until the next meeting of the unit owners.”
- According to La Marr, that one word, “MAY” trumped the word “SHALL,” in the previous section. According to La Marr, our “legal” Board, which was intended to be governed by five people was now being governed by just three.
- The first order of business was to vote me out. The law that Goff cited to do this was UC 16-6a-8. I was unfamiliar with this law at the time, but have since had time to read it. They used the first part without reading further into it.
- UC 16-6a-8 (1)(f)(ii) states: “a director elected by the board of directors to fill the vacancy of a director elected by the voting members may be removed without cause by the voting members but NOT the board of directors.”
|143. In November 2017, I was “elected by the board of directors to fill the vacancy” of a director (Tony Saiki, who was elected by ‘the voting members’ at our general election but later resigned). The law specifically states that I “may be removed without cause (and nobody ever gave me a cause of this action) by the VOTING MEMBERS BUT NOT THE BOARD OF DIRECTORS. Therefore, voting me out of my position was NOT a legal act.
144. The act of voting me off the Board was done with the advisement and under the direction of Defendant and attorney, La Marr, that I had not approved of, nor agreed upon. OBVIOUSLY TO COVER THEIR TRACKS AND JUSTIFY DEFENDANT LA MARR’S LEGAL FEES AND MAKE HIS REPRESENTATION “LEGAL,” the second order of business, after they had voted me off the Board, was to vote to hire this attorney.
145. Keep in mind, there were only TWO members of the board left at the time of voting to retain the attorney. In fact, during the meeting, Goff was reading exactly what Defendant La Marr had written out for him to read. All of this was done in collusion, evidence of which will be transparent and obvious when the Court reviews the transcription of the meeting and listens to the audio.
- The last order of business at the telephonic meeting was to elect two new members of the board. It was interesting to me that the Defendants didn’t take care of this order of business first, so that they had a FULL board with which to do the rest of the business as our bylaws mandate. This is obviously how they were able to do what they wanted to do (under the supervision of an attorney that was not legally approved of) with only TWO people.
- The regularly scheduled HOA meeting for July was held. The “new” Board made it clear that it wasn’t to be an official meeting, but that the owners had the right to gather. This July meeting was attended by more owners than any other HOA meeting in the history of the Garden Park HOA.
- I was allowed to present my case. There in the room were many people who were obviously affected by the things that they had heard from Defendants Goff and Lucero, and from the posted letter from the Defendants MILLER HARRISON and La Marr.
- I have never been in the presence of so many hateful, angry and confused people. My honesty, integrity, virtue, and reputation were impeached and forever tarnished as a causation of what the Defendants did both in collusion and personally.
- My life will never be the same. Living at Garden Park has become a living hell.
(End of Cook vs. HOA, Case 180401185, Amended Verified Complaint.)
- I have tried everything within my power to resolve this situation before it got out of control. However, the Defendants have each and severally, refused to meet with me and discuss these issues. The Defendants claim that because I threatened to sue them, they no longer wanted to deal with me. The evidence will show that long before my threats of a lawsuit, I tried exhaustively to resolve these issues in a peaceful and fair manner. Because of the Defendants’ personal disdain for me, they have refused to acknowledge my issues and address my claims as their fiduciary duty and basic human decency allow.
- Regardless of my attempts and willingness to solve these issues, the Defendants’ actions have caused and will continue to cause me and my elderly mother irreparable harm that no judge or jury can repair. I can only hope that a jury of my peers punishes the Defendants justly, fairly, and according to the law. The jury may, by its awarding of substantial punitive damages in this case, send an exemplary warning to other HOAs, property management companies, HOA agents and attorneys, and to individuals, that these types of malicious and illegal activities should not be permitted in our society.
First Claim for Relief
LEGAL MALPRACTICE/BREACH OF FIDUCIARY DUTY
- I incorporate by reference the allegation contained in paragraphs 1 through 152 of this Complaint as though set forth in full here.
- According to precedent law in decisions made by the Utah Supreme Court, I must plead and prove (i) an attorney-client relationship; (ii) a duty of the attorney to the client arising from the relationship; (iii) a breach of that duty; (iv) a causal connection between the breach of duty and the resulting injury to the client; and (v) actual damages in order to make this First Claim for Relief. (Harline v. Barker, 912 p.2d 433, 439 (Utah 1996); Williams v. Barber, 765 P.2d 887, 889 (Utah 1988); see also Legal Malpractice 18.12, at 550-51).
- Further, according to the Utah Supreme Court, fiduciaries, attorneys have a legal duty to represent the client with undivided loyalty, to preserve the client’s confidences, and disclose any material matters bearing upon the representation of the client.
- As to (i) through (iii): the Defendants La Marr and MH, ostensibly and legally represented the interests of the HOA, of which I am a voting member. When La Marr and MH met in collusion with some of the other Defendants, outside of ONLY representing the HOA as a non-profit corporation, these Defendants demonstrated an implied representation of all owners. I am an owner who expected La Marr and MH to practice law as outlined in the rules that govern the Utah Bar Association and according to the laws of the State of Utah. They had a fiduciary duty to do this. They did not.
- As to (iv): there is a DEFINITE causal connection between Defendants La Marr and MH’s breach of duty and the resulting injury to me personally and as a homeowner and part of the HOA. Defendant La Marr could have solved all issues if he would have represented the HOA with conflicting its interests with the other Defendants, and/or acted in the best interests of all homeowners.
- As to (v) actual damages: I was forced to take a leave of absence from my work to fight the Defendants and sue for justice. The emotional toil that the Defendants’ action has had on me will be proven at trial, as well as the actual damages I incurred during my leave of absence.
- Further, if the Court or Jury so deems appropriate, punitive damages as well as exemplary damages are just and reasonable as part of this cause of action.
Second Claim for Relief
Breach of Fiduciary Duty of the
HOA Board Members and
TPM and Defendant Rich Wells
- I incorporate by reference the allegations contained in paragraphs 1 through 159 of this Complaint as though set forth in full here.
- According to the Utah Supreme Court rulings, a fiduciary relationship is created where the trusting party (me, as a homeowner and a member of the Garden Park Homeowners Association) has been induced to relax the care and vigilance I would ordinarily exercise in trusting the members of the Board to treat me in fairness and equality as a homeowner. (Hal Taylor, 657 P.2d at 749; see Five F, L.L.C. v. Heritage Sav. Bank, 2003 UT App 373, ¶ 17, 81 P.3d 105, 108.)
- Further, according to the Utah Supreme Court, fiduciaries, attorneys have a legal duty to represent the client with undivided loyalty, to preserve the client’s confidences, and disclose any material matters bearing upon the representation of the client.
- The Defendants were bound by a fiduciary duty to act in the interest of another (me) “(1) where a trustor (me) reposes its trust or confidence in the trustee (Board Directors, Property Managers, and HOA attorney) and relies on the trustee’s guidance, (2) where the trustee could exercise extraordinary influence over the trustor (me), and (3) where the trustee stands in a dominant position to the trustor.” Is reasonable and fair that the trustees know and understand the law according to the trust that homeowners place in them.
- Accordingly, I must prove four elements in my claim of Breach of Fiduciary Duty: (1) the existence of a fiduciary relationship; (2) the defendant’s breach of its fiduciary duty; (3) causation, both actual and proximate; and (4) the damages. See, e.g., Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 23, 194 P.3d 931, 938; RAJI (Civil) 5th Commercial Torts 1A–1D; ABA Model Jury Instr. Bus. Torts Lit. 329, § 7.2.0 (4th ed. 2005).
- Breach Of Fiduciary Duty. The type of fiduciary duty that the Defendants owed me determines that the Defendants breached that duty, based on the Defendants’ actions, failures and/or omissions. Notably, unlike a fraud claim, a breach of fiduciary duty claim does not require me to prove any intent on the Defendants’ part in connection with the wrongdoing.
- In this case, the Board Members, each and severally, and Defendant Wells of TPM contractually and legally had the obligation to fulfill their fiduciary duty. They did not. They acted maliciously as well as illegally on many occasions.
- According to law, I have a cause of action. Accordingly, I have proven that: (1) there was a fiduciary duty to disclose material information, (2) that the Defendants had, or should have had, knowledge of the information, and (3) the Defendants failed to disclose this information to me.
- Additionally, the Defendants intimidated me and took improper advantage of their superior knowledge and position over me, failed to have undivided loyalty to me, and deceived me. (See, e.g., Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1290 [Utah 1996])
- In Utah, “the same standard of causation applies whether the alleged wrong is a negligent act, a fiduciary breach, or even a contractual breach.” Christensen & Jensen, 2008 UT 64, ¶ 25, 194 P.3d at 938.
- Therefore, the Defendants’ “breach of fiduciary duty is a cause of damages because it helped produce the damages and the damages would not have occurred without the breach.” See RAJI (Civil) 5th Commercial Torts
- I am required by law to prove that “but for” the Defendants breach, I would have been benefited or not been harmed in some way. (USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 68, 235 P.3d 749, 765.)
- To that end, “[the Court] may not speculate as to possibilities; it may, however, make justifiable inferences from circumstantial evidence to find proximate cause.” Lindsay v. Gibbons & Reed, 27 Utah 2d 419, 423, 497 P.2d 28, 31 (1972). “While it is sometimes subtle, there is in fact a difference between drawing a reasonable inference and merely speculating about possibilities.” State v. Hester, 2000 UT App 159, ¶ 16, 3 P.3d 725, 730.
- The fourth element, damages, constitute “the full amount of money that will reasonably and fairly compensate” me for any of the following elements of damage proven to have resulted from the Defendants breach of fiduciary duty: (1) loss of money or other property; (2) profit or proceeds that the I would have received had the Defendants performed their duties; and (3) emotional distress. See RAJI (Civil) 5th Commercial Torts 3.
- Accordingly, the Court of Jury may exact a measure of damages in a breach of fiduciary duty case based on the type of fiduciary relationship involved and the extent to which other areas of substantive law apply to that relationship. Watts, 2009 UT App 137, ¶ 32, 210 P.3d at 987.
- A claim for breach of fiduciary duty is an “independent tort” that, on occasion, arises from a contractual duty, as in the case of Defendants MILLER HARRISON, La Marr, and TPM, Wells. Norman v. Arnold, 2002 UT 81, ¶ 35, 57 P.3d 997, 1006; see also Restatement (Second) of Torts § 874, cmt. b (1979)
- Accordingly “a fiduciary who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act”. Thus, the primary available remedy will be tort damages, while contractual or equitable damages may, on occasion, be recoverable.
- In this case, I am entitled to Tort Damages and contractual or equitable damages. Although the remedy of a beneficiary against a breaching fiduciary can be in contract or equity, “the beneficiary is entitled to tort damages for harm caused by the breach of the fiduciary’s duty.” Watts, 2009 UT App 137, ¶ 32, 210 P.3d at 986–87 (quoting Restatement (Second) of Torts § 874 cmt. b (1979)).
- In addition to or in substitution for these damages, I am entitled to restitutionary recovery. This restitutionary measure of recovery is allowed because I am “not only entitled to recover for harm done to [my] legally protected interests by the wrongful conduct of the fiduciary, but ordinarily I am entitled to loss of profits from my company that resulted from the fiduciaries breach of duty.” Id.
- As reference for the Court, Defendants Carter and Zauner are included in this cause of action because they are well aware of everything that the other Defendants have done, and are supportive of the Defendants. By implication, and also by their own words, which were defamatory, abusive, and stated WHILE THEY WERE LEGALLY APPOINTED HOA DIRECTORS, Carter and Zauner are equally liable under this cause of action, and the Third and Fourth Cause of Actions that follow this Second Cause of Action.
Third Claim For Relief
- I incorporate by reference the allegations contained in paragraphs 1 through 179 of this Complaint as though set forth in full here.
- According to the Utah Supreme Court rulings, a person including defamation as a cause of action must prove the following elements: (i) The defendant published the statements; (ii) The statements were false, defamatory, and not subject to any privilege; (iii) The statements were published with the requisite degree of fault; and (iv) The publication resulted in damage to the plaintiff. (West v. Thomson Newspapers, 872 P.2d at 1007-08.)
- As to (i) and (ii): The Defendant published the statements; (ii) The statements were false, defamatory, and not subject to any privilege.
- On July 18, 2018, the Defendants posted a letter on the doors of the 144 condominium units located at the Garden Park Condominium Community, entitled, “OFFICIAL HOA COMMUNICATION,” that included the following false and defamatory statements: (NOTE: the words in bold were printed in bold in the publication.) “ Cook has Sued the Garden Park Association to Gain Control.” Ms. Cook filed a lawsuit against the Association on July 11, 2018 seeking to turn control of the Association over to an independent receiver and/or to herself, her husband and others [this reference implied me]. UNEQUIVOCALLY FALSE. “After filing the lawsuit and forcing the Association to incur legal fees, Ms. Cook and Mr. Nemelka are now attempting to gain control of the HOA by offering to pay the HOA’s attorneys fees, and to buy an AC unit for the clubhouse. UNEQUIVOCALLY FALSE. “Unauthorized Actions of Lynnette Cook. Ms. Cook claims that she has unilaterally appointed her husband, Damon Cook, to the Management Committee, and has demanded that Christopher Nemelka be appointed to the committee as president of the Association.” UNEQUIVOCALLY FALSE. All of these statements are unequivocally false. They are reckless, malicious, mean, and were intended to inflict harm to my character and reputation.
- As to (iii) The statements were published with the requisite degree of fault: It was the fault of the Defendants, both individually and in collusion. Because this letter was written on Defendant’s MILLER HARRISON’s letterhead, with Defendant La Marr’s title prominently affixed thereto, the homeowners that received the letter took the false and defamatory statements as LEGAL FACTS.
- These false and defamatory statements “challenged [my] honesty, integrity, virtue, and reputation. They exposed [me] to public hatred, contempt and ridicule.” These are causes of action as ruled by the Utah Supreme Court in Mast v. Overson, 971 P2d. 928. (Utah App. 1998), and West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994); and according to Utah Code Ann. Sec. 45-2-2(1) (1993):
- “Libel” means a malicious defamation, expressed either by printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule.”
- As to (iv) Damages: The publication resulted in damage to me: After the owners received this letter, many began to treat me with contempt, distrust, unkindness, and hatred.
- I am the CEO of my company. The Defendants’ actions have affected me emotionally and have greatly impeded my ability to perform my regular duties as CEO. I do not know the number of people whom the defamation has reached, but at least 144, plus the members of each 144 households. Owing to the fact that I am the CEO of a company that sells products to the public, the actual damages could be very high and will be proven at trial.
- Punitive damages are reasonable and just in this cause of action. The Court or Jury may award substantial exemplary damages in order to punish the Defendants for their defamatory statements and publications.
- According to the Utah Supreme Court, I must show that the Defendants acted with actual malice, which is further defined as “motivated by spite, hatred, or ill-will against the subject.” Fausett v. American Resources Management Corp., 542 F. Supp. 1234, 1242 (D. Utah 1982). I will prove this ABSOLUTELY during trial.
- Special damages are also just and reasonable in this cause of action. During trial, I will “provide extrinsic and supporting evidence to prove particular and special harm and injury” to me.
Fourth Claim For Relief
- I incorporate by reference the allegations contained in paragraphs 1 through 191 of this Complaint as though set forth in full here.
- The conditions for which I can make a claim of relief for “libel” are the same conditions for “slander.” Thus, I incorporate herein by reference the allegations contained in paragraphs 180 through 186.
- Particularly, but not exclusively, Defendant Goff knocked on many of the doors of the other homeowners sometime on or before July 19, 2018, and slandered me, maliciously, with spite, hatred, ill will, and malice.
- Further, at the Open Meeting held in the Clubhouse on July 19, 2018, Defendants Carter and Zauner slandered me in front of all the owners from the community in attendance.
- As to the damages, I incorporate herein the same damages mentioned in paragraphs 187 through 191.
REQUEST FOR RELIEF
I respectfully request that this Court and/or Jury grant the following relief:
- for compensatory damages in an amount to be proven at trial, but in an amount over $1,000,000.00;
- for punitive and exemplary damages in an amount to be proven at trial;
- for such other relief as the Court deems just and proper.
- The damages that are awarded in this case shall be equally divided between the HOA and me. I will donate one half of any award to the Garden Park HOA’s Reserve Fund so that the HOA will have the funds to help repair and renovate the community.
THE UNDERSIGNED, being warned that willful false statements and the like are punishable by fine or imprisonment, or both, and that such statements and the like may jeopardize the validity of my claims and this Complaint, declares that all statements made on information and belief are believed to be true
DATED this 23rd day of July, 2018.
Christopher M. Nemelka, pro se