Court Adjudicates Validity of Discharge Under By-Laws of Both Village 3 and HOA
Litigation arose out of a dispute over the membership of the Board of Managers of the Pondside Homeowners Association (HOA). The complaint alleged that Abby Hirsch was removed from her position on the Board of Managers of the HOA by vote of the members of the Board of Managers of Pondside Village 3 Condominium on December 4, 2021. The complaint further alleged that Hirsch, together with other individuals, thereafter held a previously-scheduled special meeting of the HOA Board on December 6, 2021 at which certain actions were taken. The complaint asserted that the December 6, 2021 meeting was not valid and any actions taken then were void due to the absence of quorum, as Hirsch purported to be one of the required four members present despite having been removed from her position as representative of Village 3 two days prior.
The HOA Board sought a temporary restraining order, in essence seeking to prevent Hirsch from attempting to participate in a meeting of the HOA Board scheduled for December 20, 2021. Upon confirmation that the President of the HOA Board had notified its members that no meeting would be held on December 20, 2021, an order to show cause was signed without a TRO.
By notice of cross-motion Hirsch sought an order dismissing the complaint and imposing sanctions on the HOA Board for frivolous conduct. Hirsch contended that the December 6, 2021 special meeting of which complaint was made was in fact proper, as Hirsch had not been properly removed from her position and thus a quorum of four members of the HOA Board was present at the meeting. Specifically, Hirsch contended that the December 4, 2021 meeting at which Hirsch was purportedly removed was not properly noticed and was conducted via e-mail, in violation of applicable by-laws. Hirsch submitted an affidavit in which she averred that she never received notice that a meeting was to be held on December 4.
In opposition, the HOA Board contended that Hirsch was properly removed, as she received notice of the vote held on December 4, 2021, and certain legislative amendments permitted the meeting to go forward via e-mail in the absence of any by-law prohibiting such action. The HOA Board thus contended that Hirsch could not be counted toward the required four members to constitute a quorum at the December 6, 2021 meeting, and the results of that meeting were void.
The Board alleged that the December 6, 2021 meeting and actions were void due to the absence of a quorum, as Hirsch purported to be one of the four required members of the HOA Board present after she had been validly removed from her position on December 4, 2021. Hirsch submitted evidentiary material in support of her motion to dismiss the complaint and addressed her purported December 4, 2021 removal. The inquiry for the Court thus was whether the evidence submitted by Hirsch showed that a material fact alleged in the complaint, i.e. Hirsch’s lack of capacity to act on December 6, 2021, was not a fact at all.
The Court found that Hirsch made the required showing.
Article VI, Section 3 of the HOA by-laws states that “a director may be removed from the board, at will and without cause, by a majority vote of the Members by whom he or she was elected.” The preceding section indicated that members of the HOA Board are chosen by the Board of Managers of the respective Condominiums. Those sections, read together, provided that removal of Hirsch from her position on the HOA Board required a majority vote of the Village 3 Board.
Hirsch averred in her affidavit that she did not receive notice of a meeting of the Village 3 Board scheduled for December 4, 2021. Article III, Section 8(c) of the Village 3 by-laws states that a special meeting may be called by the President on 2 days’ notice to each manager. The Board did not contest that Hirsch was not given prior notice of the December 4 meeting; rather, the Board apparently asserted that a series of e-mails sent on that date satisfied the notice requirement.
The e-mail chain began with a message sent at 1:56 p.m. on December 4, 2021, indicating that the President of the Village 3 Board was moving for a vote to remove Hirsch. A second e-mail from the President at 2:30 p.m. that date indicated that the motion was approved. Neither that exhibit, nor any other paper filed by the Board, indicated that the two days’ notice of the meeting required by Article III, Section 8(c) of the Village 3 by-laws was ever sent.
In the absence of any evidence to controvert Hirsch’s sworn statement that she was not noticed for the December 4, 2021 meeting, the Court found that the December 4, 2021 meeting at which Hirsch was purportedly removed from her position as Village 3’s representative on the HOA Board was not noticed in accordance with Article III, Section 8(c) of the Village 3 by-laws. The purported removal of Hirsch from the HOA Board on that date thus was a nullity, and Hirsch remained a member of the HOA Board at the time of the challenged meeting on December 6, 2021. As the validity of the complaint in its entirety rested on the assertion that Hirsch could not be counted toward the four-member quorum requirement on December 6, 2021, the complaint was dismissed.