Brian Hess Archives - Coach Houses at Leesburg

Windsor v. Coach Houses at Leesburg Condominium Lawsuit – DERIVATIVE ACTION FOR LEGAL MALPRACTICE

COUNT THREE

DERIVATIVE ACTION FOR LEGAL MALPRACTICE

AGAINST CLAYTON AND MCCULLOH

WINDSOR adopts and realleges Paragraphs 1 through 505.
CLAYTON & MCCULLOH DEFENDANTS.
Section 617.002 provides that the provisions of Chapter 607, the Florida General Corporation Act, apply to all nonprofit corporations.
CLAYTON & MCCULLOH has been employed as the law firm representing the ASSOCIATION since April Fools’ Day 2015 (April 1, 2015). EXHIBIT 1538 is the contract titled “2015 ATTORNEY REPRESENTATION AGREEMENT FOR COMMUNITY ASSOCIATIONS.” [See SOF 44.] The ASSOCIATION retained CLAYTON & MCCULLOH to provide legal services in a competent fashion.
At all times, the CLAYTON & MCCULLOH DEFENDANTS held themselves out as competent in the area of law dealing with the legal work for which the ASSOCIATION retained the services of the CLAYTON & MCCULLOH DEFENDANTS. When NEAL MCCULLOH spoke to the owners of the ASSOCIATION on March 5, 2020, he extolled the alleged expertise of CLAYTON & MCCULLOH, BRIAN, RUSSELL, and himself. He made it sound like CLAYTON & MCCULLOH was the best condominium association law firm in America.
The ASSOCIATION and CLAYTON & MCCULLOH DEFENDANTS acted under an attorney/client relationship in which CLAYTON & MCCULLOH undertook to represent the ASSOCIATION.
The CLAYTON & MCCULLOH DEFENDANTS were required to exercise the same duty of care as a reasonably competent attorney and to use reasonable care in determining and implementing a strategy to be followed to achieve the ASSOCIATION’s legal goals. As a fiduciary to the ASSOCIATION, the CLAYTON & MCCULLOH DEFENDANTS were obligated to protect the ASSOCIATION.
In the course of handling legal matters for the ASSOCIATION, the CLAYTON & MCCULLOH DEFENDANTS negligently failed to act with the degree of competence generally possessed by attorneys in Florida who handle legal matters similar to the ASSOCIATION’s. The ASSOCIATION paid CLAYTON & MCCULLOH a substantial amount of money for the sole purpose of representing the ASSOCIATION in its legal matters.
CLAYTON & MCCULLOH has neglected reasonable duties. CLAYTON & MCCULLOH DEFENDANTS were negligent and/or committed malpractice and breached fiduciary duties to the ASSOCIATION, including in the following regard:
- By failing to explain the law to the ASSOCIATION;
- By failing to explain the terms of the ARTICLES OF INCORPORATION, DECLARATION, and BYLAWS and the impact to the ASSOCIATION;
- By failing to ensure that the ASSOCIATION held lawful annual meetings and elections [See SOF 46, 47, 110, 151, and others];
- By concocting schemes to keep OMAR, VICKI, and KAREN as the Officers and Directors as part of an effort to conceal CLAYTON & MCCULLOH’s malpractice [See SOF 42, 100, 107, 173, and others];
- By preparing and filing a fraudulent BYLAW Amendment on January 15, 2019 in Lake County, Florida [See SOF 97-99, 107, 108, 127, 138, 149];
- By falsely and maliciously claiming the BYLAW regarding the annual meeting was amended on August 1, 2017 [See SOF 149, 151];
- By providing false legal information to ASSOCIATION owners, including WINDSOR;
- By running up legal fees by requiring that BRIAN Hess handle all of WINDSOR’s inquiries in writing [See SOF 124];
- By running up legal fees by refusing to meet with WINDSOR to resolve matters [See SOF 662];
- By running up legal fees to the ASSOCIATION and its members by failing to notify the D&O insurance carrier of litigation [See SOF 288];
- By running up legal fees by ignoring notices sent by WINDSOR in an effort to avoid further litigation [See SOF 122-123, 125, 218, 236, 238, 240, 245, 246, 251, 253, 254, 258, 261, 262, 263, 265, 271, 274, 284-287, 289-291, 303, and others];
- By running up legal fees by having NEAL MCCULLOH of CLAYTON & MCCULLOH tell WINDSOR to sue rather than agree to meet to try to resolve issues [See SOF 662];
- By running up legal fees by having RUSSELL Klemm of CLAYTON & MCCULLOH stall in a variety of ways rather than address the legal issues efficiently [See SOF 499];
- By running up legal fees by allowing the ASSOCIATION to pretend the BYLAWS were amended when they knew approval of all holders of first mortgage liens were required [See SOF 112 and others];
- By running up legal fees by failing to accept WINDSOR’s offer to withdraw his actions against the ASSOCIATION if CLAYTON & MCCULLOH and SENTRY refunded to the ASSOCIATION all money paid by to them from 2016 to 2019 [See SOF 283];
- By running up legal fees by failing to accept WINDSOR’s offer to withdraw his actions against the ASSOCIATION if the ASSOCIATION admitted and corrected all the wrongdoing [See SOF 334];
- By allowing the ASSOCIATION to charge exorbitant amounts for filing a Notice of Lien [See SOF 395];
- By allowing the ASSOCIATION to violate the Fair Credit Collection Act [See SOF 404];
- By allowing the ASSOCIATION to violate Florida Administrative Code Section 61B-23.002 (6) regarding Designated Voter Certificates [See SOF 61];
- By allowing the ASSOCIATION to violate Florida Administrative Code 61B-23.002 (8) regarding proxies [See SOF 120, 156, 171];
- By allowing the ASSOCIATION to violate Florida Administrative Code 61B-23.002 (9) by denying members the right to speak at meetings with respect to all designated agenda items;
- By allowing the ASSOCIATION to violate Florida Administrative Code Section 61B-23.0021 (4) by failing to give proper notice of elections [See SOF 54, 55, 110, 114, 151, and others];
- By allowing the ASSOCIATION to violate Florida Administrative Code Section 61B-23.0021 (8) by failing to give proper notice of elections [See SOF 54, 55, 110, 114, 151, and others];
- By allowing the ASSOCIATION to violate Florida Administrative Code Section 61B-23.0021 (8) by failing to enforce the envelope procedure required at the purported March 22, 2019 election [See SOF 197];
- By allowing the ASSOCIATION to violate Florida Administrative Code Section 61B-23.001 (1) (d) by failing to notify owners of the unfilled board positions;
- By allowing the ASSOCIATION to violate Florida Administrative Code Section 61B-23.0021 (8) by failing to notify owners of the unfilled board positions;
- By allowing the ASSOCIATION to violate Florida Administrative Code Section 61B-23.0021 (8) by failing to send an amended notice following the withdrawal of Wendy Krauss [See SOF 48, 104-106];
- By allowing the ASSOCIATION to violate Florida Statute Section 718.112(2)(d) by failing to correct the problem after Wendy Krauss removed herself as a Board candidate [See SOF 104-106];
- By allowing the ASSOCIATION to violate Florida Administrative Code Section 61B-23.0028 (3) (b) by failing to file petitions for recall [See SOF 171];
- By claiming WINDSOR did not have the right to seek judicial proceedings pursuant to Section 718.1255 of the Florida Administrative Code Section 61B-45.043;
- By allowing the ASSOCIATION to violate Florida Statute 718.104(4)(b) regarding the illegal name [See SOF 181];
- By allowing the ASSOCIATION to violate Florida Statute 718.111(c)(3) with improper claims of attorney-client privilege [See SOF 151];
- By allowing OMAR, VICKI, and KAREN to violate Florida Statute Section 718.111 (1) (q) regarding fiduciary duty [See SOF 151];
- By allowing OMAR, VICKI, and KAREN to violate Florida Statute Section 718.111 (1) (d) regarding fiduciary duty [See SOF 151];
- By allowing the ASSOCIATION to violate Florida Statute Section 718.111 (12) (6) by failing to maintain minutes of all meetings; [See SOF 166, 196, and many others.] [VERIFIED AFFIDAVIT OF WILLIAM M. WINDSOR DATED OCTOBER 27, 2020 (“AFFIDAVIT-2020-10-27”) ¶¶ 530, 600, 637, 729, 746, 753, 778, 779, 781, 788, 813, 950, 1006, 1063, 1068, 1375.]
- By allowing the ASSOCIATION to violate Florida Statute Section 718.111 (12) (7) by failing to maintain current rosters [See SOF 49];
- By allowing the ASSOCIATION to violate Florida Statute Section 718.111 (12) (15) by failing to maintain written records;
- By allowing the ASSOCIATION to violate Florida Statute Section 718.112 by failing to give at least 14 days’ notice of the annual meeting [See SOF 55];
- By causing and allowing the ASSOCIATION to violate Florida Statute Section 718.112 (1) (a) by not being governed as required by law [See SOF 151];
- By allowing the ASSOCIATION to violate Florida Statute Section 718.112 (1) (c) (1) by failing to post notice of meetings in a conspicuous place;
- By causing the ASSOCIATION to violate Florida Statute Section 718.112(2)(a)(2) regarding written inquiries and by providing false responses to written inquiries [See SOF 150, 151, 160, 161];
- By allowing the ASSOCIATION to violate Florida Statute Section 718.112 (2) (b) by failing to require a quorum [See SOF 121 and others];
- By causing and allowing the ASSOCIATION to violate Florida Statute Section 718.112(2)(c) by not allowing WINDSOR the right to speak at meetings with regard to all designated agenda items [See SOF 123, 151, 155, 302, 645];
- By allowing the ASSOCIATION to violate Florida Statute Section 718.112(2)(c)(1) by failing to post notice of the December 12, 2018 meeting and by claiming compliance with the statute [See SOF 151];
- By allowing the ASSOCIATION to violate Florida Statute Section 718.112(2)(d) by failing to hold annual meetings [See SOF 110 and others];
- By allowing the ASSOCIATION to violate Florida Statute Section 718.112(2)(d) by failing to post notice of the December 12, 2018 meeting and by claiming compliance with the statute [See SOF 151];
- By allowing the ASSOCIATION to violate Florida Statute Section 718.112(2)(d)(4) by failing to provide notice regarding annual elections in 2015, 2016, 2017, 2018, 2019, or 2020 [See SOF 151, 110];
- petitions for arbitration over recalls [See SOF 171];
- Florida Statute Section

718.303 (5) by improperly suspending voting rights;

By allowing the ASSOCIATION to violate ARTICLES of Incorporation of the ASSOCIATION Article IV, Section 4.2 by failing to obtain certified copies of deeds [See SOF 53, 63, 69, 210, 331];
- By allowing the ASSOCIATION to violate ARTICLES of Incorporation of the ASSOCIATION Article VI, Officers by failing to elect Directors;
- By allowing the ASSOCIATION to violate BYLAW 1.1 by showing a bogus address for the ASSOCIATION [See SOF 151];
- By allowing the ASSOCIATION to violate BYLAW 2.1 by failing to maintain current rosters [See SOF 49, 53];
- By allowing the ASSOCIATION to violate BYLAW 2.1 by failing to obtain certified copies of deeds;
- By allowing the ASSOCIATION to violate BYLAW 2.2 regarding the annual meeting and election [See SOF 46, 47, 100, 110, 151, 486];
- By allowing the ASSOCIATION to violate Florida Law and BYLAW 2.2 by failing to hold annual meeting and annual election in 2020;
- By allowing the ASSOCIATION to violate BYLAW 2.2 regarding the term for Directors [See SOF 46, 47, 151];
- By allowing the ASSOCIATION to violate BYLAW 2.3 regarding special members’ meetings [See SOF 141, 145];
- By allowing the ASSOCIATION to violate BYLAW 2.4 regarding conspicuous posting of notice of meetings [See SOF 54, 63, 64, 111, 117, 121, 151, 331];
- By allowing the ASSOCIATION to violate BYLAW 2.4 regarding notice of meetings [See SOF 54, 55, and others];
- By allowing the ASSOCIATION to violate BYLAW 2.5 regarding quorum [See SOF 52, 63, 331, and others;
- By causing the ASSOCIATION to violate BYLAW 2.6 regarding voting [See SOF 53, 151];
- By allowing the ASSOCIATION to violate BYLAW 2.6 regarding Designated Voters and quorum [See SOF 53, 151];
- By causing and allowing the ASSOCIATION to violate BYLAW 2.9 (b) regarding election of a Chairman [See SOF 192, 194, 206];
- By allowing the ASSOCIATION to violate BYLAW 2.9 (j) regarding election of Directors;
- By allowing the ASSOCIATION to violate BYLAW 3.1 regarding the number of Directors;
- By allowing the ASSOCIATION to violate BYLAW 3.2 regarding failure to consider nominations from the floor [See SOF 102 and others];
- By allowing the ASSOCIATION to violate BYLAW 3.2 a regarding election of Directors [ SOF 331];
- By allowing the ASSOCIATION to violate BYLAW 3.2 b regarding use of a nominating committee [See SOF 63, 101];
- By allowing the ASSOCIATION to violate BYLAW 3.3 regarding term of service for Directors;
- By allowing the ASSOCIATION to violate BYLAW 3.4 regarding organizational meetings [See SOF 63, 103, 331];
- By allowing the ASSOCIATION to violate BYLAW 3.5 regarding organizational meetings [See SOF 103];
- By allowing the ASSOCIATION to violate BYLAW 3.6 regarding special meetings;
- By allowing the ASSOCIATION to violate BYLAW 3.12 regarding election of officers [See SOF 100];
- By allowing the ASSOCIATION to violate BYLAW 5.1 by failing to elect an Assistant Secretary [AFFIDAVIT-2020-10-27 ¶¶ 15, 304, 328, 329, 347, 373, 403, 465, 466, 468];
- By allowing the ASSOCIATION to violate BYLAWS 6.1 and 6.2 regarding accounts classification [See SOF 151];
- By allowing the ASSOCIATION to violate BYLAW 8.2 regarding Bylaw amendment;
- By allowing the ASSOCIATION to violate BYLAW 8.3 regarding consent of mortgage holders [See SOF 63, 97, 112, 138, 331, 525];
- By allowing the ASSOCIATION to violate DECLARATION Paragraph 13.3 regarding the number of Voting Interests [See SOF 51, 52, 59, 181, 331];
- By allowing the ASSOCIATION to violate DECLARATION Paragraph 18.1 regarding amendment;
- By claiming the ASSOCIATION had Rules limiting the right to speak [See SOF 151 and EXHIBIT E];
- By allowing the ASSOCIATION to unlawfully increase assessments to the members [See SOF 39];
- By allowing the ASSOCIATION to vote to unlawfully increase assessments to the members to as much as $962.38 per month at the purported December 12, 2018 meeting [See SOF 39];
- By facilitating repeated violations of the corporate governing documents and Florida statutes [See SOF 40 – 510];
- By counseling purported officers and directors to ignore demands for them to cease pretending to be officers and directors [See SOF 42, 137, 164];
- By failing to update the corporate governing documents [See SOF 45];
- By allowing the ASSOCIATION to pretend the BYLAW was amended on August 25, 2018 after RUSSELL E. KLEMM sent a letter to the ASSOCIATION c/o CHARLIE ANN of SENTRY in which he stated amendments require approval of all holders of first mortgage liens [See SOF 112];
- RUSSELL E. KLEMM has committed many violations of the Florida Rules of Professional Conduct while fighting WINDSOR; he has committed perjury, fraud on the court, and many other violations while C&M has obtained over $130,000 in legal fee payments from the ASSOCIATION [See SOF 499];
- By allowing the ASSOCIATION to violate Florida Law and the governing documents by failing to hold annual meeting and annual election in 2017 when there was not a quorum [See SOF 51, 52, 59, 63, 104, 107, 137, 331, 525];
- OMAR, VICKI, and KAREN were not lawfully elected, so they had no authority to schedule meetings [See SOF 118, 137];
- By denying owners a special meeting to consider a substitute budget [See SOF 145];
- By allowing the ASSOCIATION to hire police to attend ASSOCIATION meetings by falsely claiming police were needed because of WINDSOR threats to do physical harm or kill people. WINDSOR did no such thing [See SOF 119, 204];
- By authorizing the ASSOCIATION to disregard the votes and proxies submitted in advance by owners on December 12, 2018. WINDSOR objected. BRIAN Hess of CLAYTON & MCCULLOH ignored him and facilitated this wrongdoing. [See SOF 120];
- By authorizing the ASSOCIATION to conduct the purported December 12, 2018 meeting when it was void for a variety of reasons. [See SOF 121];
- By authorizing the ASSOCIATION to conduct a purported January 16, 2019 meeting that was not legal because OMAR, VICKI, and KAREN were not legally elected as directors. [See SOF 139];
- By causing the value of the condos of ASSOCIATION members to decline due to the legal problems [See SOF 143];
- By ignoring requests from an ASSOCIATION member in an effort to determine what was needed to accept the signatures of Nancy Camp and Jane O’Steen for the Nielsen Trust. [See SOF 148];
- By claiming the BYLAWS provide that reserves are to be allocated to a specific use [See SOF 151];
- By claiming the BYLAWS restrict ASSOCIATION owners to speak three minutes total at meetings [See SOF 151];
- By causing the ASSOCIATION to violate the BYLAWS by disregarding valid proxies [See SOF 151];
- By claiming DECLARATION 12.2 gives the Board the power to increase dues for repairs and maintenance [See SOF 151];
- By causing and/or allowing the ASSOCIATION, OMAR, VICKI, and KAREN to violate Florida Statue Section 617.0830 and 617.0834 by committing the crime of fraud and perhaps other crimes [See SOF 151];
- By authorizing the ASSOCIATION to disregard the defamation directed at WINDSOR. [See SOF 137, 153, 154];
- By failing to comply with the Florida Rules of Civil Procedure [See SOF 499];
- By managing a purported December 12, 2018 meeting that was void [See SOF 121]
- By allowing the ASSOCIATION, SENTRY, and CHARLIE ANN to announce false voting results at the December 12, 2018 meeting [See SOF 151, 167, 209, 216];
- By allowing the ASSOCIATION to repeatedly produce a bogus set of minutes for a purported meeting for August 2017 [See SOF 51];
- By causing COACH HOUSES MEMBER Defendants and the ASSOCIATION to ignore notices of violations and wrongdoing and demands to rectify. [See SOF 42, 122, 123, 125, 126, 137, 151, 157, 167, 168, 179, 180, 182, 189, 226, 227, 229, 235, 237, 238, 240, 242, 244-246, 248, 251, 253, 254, 258, 261, 263, 265, 270-272, 274, 275, 283-285, 288-291, 295-297, 303, 308, 309, 315, 319, 320, 327, 329-331, 334, 358-360, 363, 371, 376, 386, 391, 392, 394, 396-406, 410, 461, 486, 489, 491, 492, 498, and others.]
- By causing the ASSOCIATION to fail to file Petitions for Recall Arbitration [See SOF 156, 171];
- By causing the ASSOCIATION to deny the election / recall on February 4, 2019 and February 19, 2019 [See SOF 155, 156, 170];
- By causing the ASSOCIATION to fail to produce Records requested for Inspection [See SOF 175 -176] [EXHIBITS 1853, 1857];
- By allowing the ASSOCIATION to hold a purported March 22, 2019 meeting and election due to fraud as well as other violations [See SOF 195, 210];
- By ignoring a February 23, 2019 certified letter from WINDSOR advising CLAYTON & MCCULLOH of a variety of wrongful acts. There was no response. [See SOF 177.]
- By concealing Designated Voter Certificates at the purported March 22, 2019 meetings that would have shown several to be invalid; [See SOF 202.]
- By falsifying information sent to the DBPR [See SOF 310, 323, 324];
- By holding themselves out as the attorneys for the ASSOCIATION but not representing the best interests of the ASSOCIATION;
- By taking large sums of money from the ASSOCIATION;
- By failing to provide the ASSOCIATION with the minimum standard of care.
In addition to the negligence and/or malpractice committed by CLAYTON & MCCULLOH DEFENDANTS as shown herein, upon information and belief, the C&M DEFENDANTS fraudulently induced the ASSOCIATION to pay large sums of money by making representations regarding the legal issues that were not true.
The ASSOCIATION performed all conditions, covenants, and promises required on their part in accordance with the 2015 Attorney Representation Agreement for Community Associations, with the exception of those conditions which the ASSOCIATION was prevented and/or relieved from performing by the acts and omissions of the CLAYTON & MCCULLOH DEFENDANTS. Implicit in the contract for legal services was the requirement to perform such services competently and to not require payment for incompetent services, to not bill excessively or dishonestly, and to not require payment of excessive or dishonest bills, and for the CLAYTON & MCCULLOH DEFENDANTS to comply with the Rules of Professional Conduct (and other applicable laws) in the provision of their services and to not require payment of services violating the Rules of Professional Conduct or other applicable laws. The CLAYTON & MCCULLOH DEFENDANTS breached the 2015 Attorney Representation Agreement for Community Associations by failing to provide competent services. As a direct and proximate result of CLAYTON & MCCULLOH DEFENDANTS incompetence and contractual breaches, the ASSOCIATION has suffered damages and should suffer significant damages in this case.
A client’s retention of a law firm gives rise to a fiduciary relationship between the parties. The scope of an attorney’s fiduciary obligations are determined as a matter of law. These fiduciary duties include duties of care and loyalty, an obligation to the ASSOCIATION.
In breach of their fiduciary duties and professional responsibilities to the ASSOCIATION, the CLAYTON & MCCULLOH DEFENDANTS committed the wrongful acts and omissions shown herein.
As the ASSOCIATION’s attorneys, the CLAYTON & MCCULLOH DEFENDANTS also owed a duty to comply with Florida Rules of Professional Conduct and not to unreasonably or excessively bill the ASSOCIATION. The CLAYTON & MCCULLOH DEFENDANTS’ fiduciary duties to the ASSOCIATION also included the obligation that the CLAYTON & MCCULLOH DEFENDANTS would perform the legal services in an efficient and cost effective manner, would not pad or engage in deceptive and abusive billing practices, would charge litigation costs and expenses to the ASSOCIATION at their own cost and without increase, and that the CLAYTON & MCCULLOH DEFENDANTS would exercise their fiduciary duty in respect to their fees, billings and costs charged. The CLAYTON & MCCULLOH DEFENDANTS breached their fiduciary duties to the ASSOCIATION by unreasonably and excessively billing the ASSOCIATION for the ultimately incompetent legal services performed which caused hundreds of thousands of dollars in damages to the ASSOCIATION and its members. As a direct and proximate result of the CLAYTON & MCCULLOH DEFENDANTS’ various fiduciary breaches, the ASSOCIATION has suffered compensatory damages in an amount to be proven at trial.
In doing the things herein alleged, the CLAYTON & MCCULLOH DEFENDANTS intentionally put their own financial interests ahead of the interests of their client. As a direct and proximate result of the C&M DEFENDANTS’ actions, as alleged herein, the ASSOCIATION incurred substantial unnecessary fees and costs, in an amount subject to proof.
The legal work was mishandled from the start of CLAYTON & MCCULLOH’s representation and the mishandling by the CLAYTON & MCCULLOH DEFENDANTS began almost immediately after C&M was retained.
The C&M DEFENDANTS, and each of them, failed to exercise reasonable care and skill in their representation of the ASSOCIATION by negligently and carelessly doing all of the acts and omissions as herein alleged.
The CLAYTON & MCCULLOH DEFENDANTS, and each of them, owed the ASSOCIATION a fiduciary duty to act at all times in good faith and in the ASSOCIATION’s best interests, and had a duty, among other things, to perform the services for which they were retained with reasonable care and skill, to act in the ASSOCIATION’s highest and best interests at all times, and to not expose the ASSOCIATION to any unnecessary risk or peril. This fiduciary and confidential relationship was never repudiated by the C&M DEFENDANTS at any time herein mentioned.
The CLAYTON & MCCULLOH DEFENDANTS, and each of them, breached their fiduciary duties and obligations to the ASSOCIATION by doing all of the acts and omissions as herein alleged.
WINDSOR demands judgment of and from CLAYTON & MCCULLOH DEFENDANTS for compensatory damages in an amount to be proven at trial; special damages as permitted by law; pre-judgment and post-judgment interest as permitted by law; and for such other relief as the Court deems necessary or proper.
Furthermore, in doing all of the above described acts and omissions constituting Defendants’ breach of their fiduciary duties owed to the ASSOCIATION, the ASSOCIATION sustained damages, including but not limited to, legal fees incurred to C&M in the amount of over $130,000, the ASSOCIATION sustained further and additional economic and out of pocket losses and damages to be presented at trial, all according to proof.

The acts and omissions constituting breach of the CLAYTON & MCCULLOH DEFENDANTS’ fiduciary duties were committed with oppression, fraud and/or malice. As a result, ASSOCIATION, in addition to actual damages, may recover exemplary damages for the sake of example and by way of punishing the CLAYTON & MCCULLOH DEFENDANTS.

Click here for links to the entire lawsuit, by section

NEAL MCCULLOH is one of the two senior partners with CLAYTON & MCCULLOH.

He likes his bangs apparently.

Kenneth M Clayton KENNETH M. CLAYTON is the other senior partner at CLAYTON & MCCULLOH.

You have to wonder if he once had bangs, too.

CLAYTON AND MCCULLOH appears to be a tiny law firm with the two “senior partners” and one or two other attorneys.

Christine Praria of Clayton and McCulloh

Christine Praria is legal assistant to Russell E. Klemm.

She seems to think she’s running the show.

Windsor v. Coach Houses at Leesburg Condominium Lawsuit

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL DISTRICT

IN AND FOR LAKE COUNTY, FLORIDA

William M. Windsor,

Plaintiff,

Case No. 35-2020-CA-001438

vs.

Coach Houses at Leesburg Condominium Association, Inc., Omar Nuseibeh, Vicki Hedrick, Karen Bollinger, Shehneela Arshi, Isabel Campbell, Sergio Naumoff, Ed Broom, Jr., Marta Carbajo, Sue Yokley, Wendy Krauss, Howard Solow, Sentry Management, Inc., Charlie Ann Aldridge, Art Swanton, Brad Pomp, Clayton & McCulloh, P.A., Brian Hess, Neal McCulloh, Russell Klemm, Florida Department of Business and Professional Regulation, Mahlon C. Rhaney, Leah Simms, and Does 1-20,

Defendants.

____________________________________________________________________________

SECOND AMENDED COMPLAINT

PLAINTIFF hereby files this Second Amended Complaint (“SECOND AMENDED COMPLAINT”) and shows the Court the following:

PLEASE BE ADVISED: Everything you are about to read regarding the BIG LAWSUIT is the actual lawsuit Complaint. It was sworn under penalty of perjury before a notary to be true and correct based upon William M. Windsor’s knowledge. It is on file in Lake County Circuit Court for anyone to read.

Introduction

Jurisdiction and Venue

Parties

Legal Background

Statement of Facts:

Facts — 2018

Facts — January 2019

Facts — February 2019

Facts — March 2019

Facts — April 2019

Facts — May 2019

Facts — June 2019

Facts — July 2019

Facts — August 2019

Facts — September 2019

Facts — October 2019

Facts — November 2019

Facts — December 2019

Facts — January 2020

Facts — February 2020

Facts — March 2020

Facts — May 2020

Facts — June 2020

Facts — July 2020

Facts — August 2020

Facts — September 2020

Facts — October 2020

CAUSES OF ACTION

COUNT ONE — BREACH OF FIDUCIARY DUTY

COUNT TWO — FRAUD

COUNT THREE — DERIVATIVE ACTION FOR LEGAL MALPRACTICE

COUNT FOUR — BREACH OF CONTRACT

COUNT FIVE — DERIVATIVE ACTION FOR MALPRACTICE AND BREACH OF CONTRACT

COUNT SIX — BREACH OF CONTRACT – FAILURE TO KEEP COMMON AREAS CLEAN

COUNT SEVEN — CONSPIRACY

COUNT EIGHT — PROFESSIONAL NEGLIGENCE

COUNT NINE — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

PUNITIVE DAMAGES

Prayer for Relief

Windsor v. Coach Houses at Leesburg Condominium Lawsuit – FACTS – JUNE 2019

On June 5, 2019, the ASSOCIATION filed Respondent’s Motion to Dismiss for Failure to State a Cause of Action (DBPR Case No. 2019-02-1020). [EXHIBIT 796.]
On June 5, 2019, investigator Ron James from the DBPR called to discuss WINDSOR’s second Complaint regarding failure to produce documents (DBPR Complaint No. 2019028466). He sent WINDSOR a letter dated June 5, 2019. [EXHIBIT 994.]
On June 5, 2019, WINDSOR entered into a contract to sell his Coach Houses Unit B3 for $80,000. [EXHIBIT 1015.]
On June 6, 2019, a purported Board Meeting was held. [EXHIBIT 973.] [EXHIBIT 1367 is the Minutes.] ISABEL CAMPBELL, SERGIO NAUMOFF, and ED BROOM were present. Purported Officer and Board Member ISABEL CAMPBELL told the attendees that the Board was very confident that the ASSOCIATION would prevail in WINDSOR’s First Petition for Arbitration. She gave no explanation. She discussed her review of the finances of the ASSOCIATION and presented a Proposed Adjusted Budget for 2019. [EXHIBIT 974.] The Proposed Adjusted Budget showed a reduction in Building Maintenance by $26,729.27 and no change in Grounds Maintenance, Utilities, or Budgeted Transfer to Reserves. It showed an increase of approximately $50,000 in Income and Administrative & Management Expense. Those costs showed a $75,000 increase in legal fees. Those are all costs related to the ASSOCIATION’S defense of all the violations WINDSOR had identified. The video of the June 6, 2019 meeting is EXHIBIT 995-1, EXHIBIT 995-2, EXHIBIT 995-3, EXHIBIT 995-4, EXHIBIT 995-5, EXHIBIT 995-6, and EXHIBIT 995-7.
On June 6, 2019, WINDSOR sent an email to the purported Board, CLAYTON & MCCULLOH, and SENTRY MANAGEMENT regarding the Board Meeting. [EXHIBIT 822.] He said:

“I hereby request to be named a Board Member. If we have openings, you are required by statute to notify the owners, and you didn’t. You want an odd number, though that is not in our Bylaws or the Florida statutes. But, now I’m Board Member #5. 37 years of Minutes show this is what is done when there are openings pre-Omar.

For the record, today’s meeting was invalid. The March election was invalid. I didn’t raise a Point of Order as owners don’t have such a right at a Board Meeting.

A very intelligent request was made today by an owner to have special expenses treated through Special Assessments. CHARLIE ANN ALDRIDGE told all at the meeting that the attorneys said our BYLAWS prohibit this. There is NOTHING in our BYLAWS that prohibits special assessments. I asked for the Bylaw to be identified, and CHARLIE ANN ALDRIDGE told me to hire an attorney. I came home and read the BYLAWS for about the hundredth time. I am preparing to file another Petition that will list this as another violation. Florida law specifically permits Special Assessments (Section 718.112(2)(c)1, Florida Statutes): http://www.condo-owner.com/article/special-assessments-do-it-right-or-pay-the-price/

By the way, Florida Statutes take precedence over bylaws.

I have an eyewitness to the Libel dog soiling the carpets in Building B. Ask Jason and Karen Chandler. Mrs. DOROTHY LIEBL (Libel) claimed her dog never did any such thing. WRONG!

Unfortunately, your new Board has chosen to fight me legally. At today’s meeting, I offered to withdraw my actions against the Association. I am willing to do this if CLAYTON & MCCULLOH and SENTRY MANAGEMENT refund to the Association all money paid by the Association to them from 2016 to 2019.

The people responsible for our outrageous legal fees are OMAR NUSEIBEH, VICKI HEDRICK, KAREN BOLLINGER, CHARLIE ANN ALDRIDGE, SENTRY MANAGEMENT, BRIAN HESS, NEAL MCCULLOH.”

On June 7, 2019, WINDSOR sent a certified letter to attorney BRIAN HESS of CLAYTON AND MCCULLOH for the ASSOCIATION. WINDSOR enclosed a Letter from Karen Chandler about B3 Carpet; Email from him about Breach of Fiduciary Duty, Liebls, and Lawyers; Letter from him agreeing to be a Director; Email from WINDSOR about Board Meeting; Email from WINDSOR about Vandalism in Building B; Email from WINDSOR with Notice of Intent to file Third Petition for Arbitration; Notice of Intent for his Third Petition, pre-arbitration letter and Exhibits AA, BB, CC, DD, EE, and FF; Email from WINDSOR with Notice of Intent to file Third Petition Part 1 of 3; Email from WINDSOR with Notice of Intent to file Third Petition Part 2 of 3; Email from WINDSOR with Notice of Intent to file Third Petition Part 3 of 3. [EXHIBIT 991.] The certified mail receipt is EXHIBIT 992. WINDSOR also hand-delivered a copy to SENTRY; Richard accepted the envelope.
On June 7, 2019, Karen Chandler from Unit B4 wrote a letter with evidence that the Liebl’s dog in B2 was responsible for staining the carpets in Building B. [EXHIBIT 821.] She gave the letter to WINDSOR, and he emailed it to the purported Board, SENTRY MANAGEMENT, and CLAYTON AND MCCULLOH.
On June 7, 2019, WINDSOR sent an email to the purported Board, SENTRY MANAGEMENT, and CLAYTON & MCCULLOH charging Breach of Fiduciary Duty. [EXHIBIT 823.] The email says:

“Karen Chandler in Unit B4 will speak to the Board and sign an affidavit stating that the Libels dog caused the carpet mess in Building B. She has seen the dog do it. She has seen Dorothy Libel with the dog when the dog did it. Dorothy Libel has told Karen and Jason that the dog has “bladder issues.”

Karen cared for the dog when the Liebels were out of town, and the dog peed on the carpet at the top of the stairs. Karen obviously observed this.

Just like the Old Board, the New Board is not requiring Dorothy Libel to clean the carpets, and this is imposing an expense on the owners that is wrongful. 23 spots have been documented with photos.

Have Libels pay, or I will sue. Consider this Notice of Intent to file a Petition and sue.

ALSO, the Minutes of the ASSOCIATION establish that carpets have been replaced at various times. Building B is the newest. There is no reason to not stagger this work over the years. It should be a budgeted Reserves item. Building B simply needs the 23 spots of pee and poo cleaned. Doing all buildings at one time hurts all owners.

Your approval of payments to CLAYTON AND MCCULLOH constitutes breach of fiduciary duty, in my opinion.

Your approval of fighting my first Petition also constitutes breach of fiduciary duty, in my opinion. And if a letter from Monalene Werner magically appears after months of requests, I believe this constitutes fraud. You better believe I will pursue that in court.

Thank you for establishing a rule yesterday that limits owners to three minutes per agenda item. This helps enforce the fact that my rights and the rights of others were violated prior to this alleged Board enactment when CHARLIE ANN ALDRIDGE and OMAR NUSEIBEH claimed there was such a rule. No such rule in the Rules or Minutes over the last 37 years.

On June 9, 2019, WINDSOR emailed attorney RUSSELL KLEMM (“RUSSELL”) of CLAYTON AND MCCULLOH, attorney BRIAN HESS, attorney NEAL MCCULLOH of CLAYTON AND MCCULLOH, and the ASSOCIATION asking them to withdraw the sham Motion to Dismiss for Failure to State a Cause of Action. [EXHIBIT 818.]
On June 9, 2019 at 9:54 a.m., WINDSOR emailed ISABEL CAMPBELL, SERGIO NAUMOFF, and ED BROOM advising them of his intent to sue them for breach of fiduciary duty. [EXHIBIT 819.] The email said:

I intend to sue ISABEL CAMPBELL, SERGIO NAUMOFF, and ED BROOM for breach of fiduciary duty and other causes of action. Please notify your insurance carrier, and ask the insurance folks to call me.

I will allege that you folks have failed to take the necessary actions to operate legally; you have spent money improperly; you are using dishonest attorneys and a dishonest management company and have been provided with massive proof. You have presented false information to the owners about BYLAWS and special assessments. You have concealed wrongdoing with Reserve funds. You have failed to get the fraudulent BYLAW filing removed from Lake County Records. You have told owners that all work must be done at the same time so some owners don’t feel slighted. That’s a load of you-know-what. You have not enforced the letter sent several years ago to the Libels. You have evidence that the Libels are guilty, but you want all owners to pay to clean it up. You have not had the Libels “installation” removed, though they were ordered to do so years ago. And more…

It took you 76 days to hold a meeting in which ISABEL CAMPBELL essentially recited information that I had prepared back in February.

Should a letter from Monalene Werner magically appear next week, I will also charge you with fraud. If allowed by Florida law or federal law, I will charge you with criminal racketeering (RICO).

Please keep all emails and other communications safe as they will be evidence in the case. Please do not delete anything. I will seek a forensic audit of your electronic devices, if necessary.

The D&O Insurance carrier was not notified. This email was also sent to BRAD POMP, ART SWANTON, and CHARLIE ANN ALDRIDGE with SENTRY MANAGEMENT and BRIAN HESS and NEAL MCCULLOH with CLAYTON AND MCCULLOH.

On June 10, 2019, WINDSOR emailed the ASSOCIATION, ISABEL, SERGIO, and ED, SENTRY, and CLAYTON AND MCCULLOH advising them of his intent to petition for arbitration regarding failure to enforce the Rules. [EXHIBIT 875.]
On June 11, 2019, WINDSOR sent an email to the owners, purported Board, SENTRY, and CLAYTON AND MCCULLOH. WINDSOR said payables must be frozen so C&M will not be paid $80,000 in legal fees. [EXHIBIT 988.]
On June 11, 2019, WINDSOR sent a Notice of Intent to File Petition for Arbitration regarding Violations of Corporate Documents, Rules, and Florida Statutes, purported Board, SENTRY, and CLAYTON AND MCCULLOH. WINDSOR also mailed a copy to attorney BRIAN. [EXHIBIT 989.]
On June 11, 2019, DBPR investigator Paula Bouie sent WINDSOR a letter about the Complaint he filed over failure to produce records for January 9, 2019, February 5, 2019, February 22, 2019, and February 27, 2019 in response to Inspection of Records Requests. [EXHIBIT 1014.]
On June 13, 2019, a second Final Order of Dismissal (“SECOND FINAL ORDER OF DISMISSAL”) was filed in DBPR Case No. 2019-02-1020. [EXHIBIT 1008.]
On June 14, 2019, SUE Yokley purchased Unit C3 from Medea Minnich. She paid $48,000. [EXHIBIT 1426.]
On June 17, 2019, the buyers of his Unit B3 condo canceled the purchase agreement. They canceled because of the excessive monthly “dues” and the lack of amenities at Coach Houses. [EXHIBIT 1016.] On June 17, 2019, WINDSOR sent an email to the owners advising them that his sale fell through. [EXHIBIT 1040.]
On June 17, 2019, WINDSOR sent an email to the ASSOCIATION demanding that the Building B carpets be cleaned. [EXHIBIT 1041.]
On June 18, 2019, WINDSOR sent the ASSOCIATION an email stating that the potential buyers for his condo were repulsed by the carpets and the failure to have the Liebls clean the carpets undoubtedly contributed to the loss of a sale. [EXHIBIT 1156.]
On June 18, 2019, the MOTION FOR REHEARING in DBPR Case No. 2019-02-1020 was executed, served, and sent to DBPR for filing. [EXHIBIT 1018.]
On June 18, 2019, the FOURTH AFFIDAVIT in DBPR Case No. 2019-02-1020 was executed, served, and sent to DBPR for filing. [EXHIBIT H.]
On June 18, 2019, the THIRD AFFIDAVIT in DBPR Case No. 2019-02-1020 was executed, served, and sent to DBPR by email. [EXHIBIT G.]
On June 18, 2019, PETITIONER’S RESPONSE TO RESPONDENT’S MOTION TO DISMISS AND MOTION TO STRIKE RESPONDENT’S MOTION TO DISMISS in DBPR Case No. 2019-02-1020 was executed, served, and sent to DBPR for filing. [EXHIBIT 1022.]

On June 20, 2019, a purported Board Meeting was held. [EXHIBIT 1059.] [EXHIBIT 1368 is the Minutes.] Barbara and Larry Lunsford attended the meeting as did SERGIO NAUMOFF and CHARLIE ANN ALDRIDGE OF SENTRY MANAGEMENT (shown above). There was no discussion of quorum (0:00 to 0:42 in the video.) CHARLIE ANN ALDRIDGE denied WINDSOR’s right to speak on the subject of “reorganization of the Board.” [EXHIBIT 1059 from 1:04 to 1:30.] At 2:50, WINDSOR asked “what about the eight open spots on the Board?” CHARLIE ANN ALDRIDGE said the meeting was adjourned. She then ordered WINDSOR to leave the building. The remainder of the video is CHARLIE ANN ALDRIDGE escorting WINDSOR out of the building. Later that day, owner Larry Lunsford informed WINDSOR that two Tavares Police Officers arrived after he left. As the video shows, there was absolutely no basis for reporting WINDSOR to the police.
On June 21, 2019, WINDSOR sent a Notice of Intent to File Petition for Arbitration and/or a Lawsuit Regarding Violations of Corporate Documents, Rules, and Florida Statutes to BRIAN HESS of CLAYTON AND MCCULLOH. [EXHIBIT 1080.] EXHIBIT 542 is the certified mail receipt.
On June 21, 2019, the MOTION FOR REHEARING in Case No. 2019-02-1020 was executed, served, and sent to DBPR by mail. [EXHIBIT 1018.] The Microsoft Word version of this filing is EXHIBIT 1019. EXHIBIT 476 is the Certified Mail Receipt.
On June 21, 2019, the FOURTH AFFIDAVIT in Case No. 2019-02-1020 was executed, served, and sent to DBPR by mail. [EXHIBIT H.] The Microsoft Word version of this filing is EXHIBIT 1024.
On June 21, 2019, the THIRD AFFIDAVIT in Case No. 2019-02-1020 was executed, served, and sent to DBPR by mail. [EXHIBIT G.]
On June 21, 2019, PETITIONER’S RESPONSE TO RESPONDENT’S MOTION TO DISMISS AND MOTION TO STRIKE RESPONDENT’S MOTION TO DISMISS in Case No. 2019-02-1020 was executed, served, and sent to DBPR by mail. [EXHIBIT 1022.] EXHIBIT 1037 is the certified mail receipt for the THIRD AFFIDAVIT, FOURTH AFFIDAVIT, PETITIONER’S RESPONSE TO RESPONDENT’S MOTION TO DISMISS AND MOTION TO STRIKE RESPONDENT’S MOTION TO DISMISS, and MOTION FOR REHEARING in DBPR Case No. 2019-02-1020 that was served on KLEMM. [EXHIBIT 522 is the certified mail receipt.]
On June 23, 2019, WINDSOR sent a Notice of Intent to Apply for Receivership to the ASSOCIATION. [EXHIBIT 569.]
On June 23, 2019, WINDSOR emailed the ASSOCIATION with a request to be able to post the Notice of Intent to Apply for Receivership where conspicuous notices are posted. [EXHIBIT 1039.] There was no response.
On June 25, 2019, Ronell James of DBPR sent WINDSOR a letter saying the ASSOCIATION provided documentation to show his issue in Case No. 2019028466 was before federal court in Atlanta, Georgia. [EXHIBIT 1139.] This is absolutely false, and WINDSOR suspects forgery.
On June 25, 2019, WINDSOR served his Motion for Default and Motion for Fees and Costs in DBPR Case No. 2019-02-6384. [EXHIBIT 1186.]
On June 27, 2019, WINDSOR received RESPONDENT’S MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION in DBPR Case No. 2019-02-6834. [EXHIBIT 1042.]
On June 28, 2019, WINDSOR sent a Motion for Leave to file Condominium Arbitration Complaints to the U.S. District Court for the Northern District of Georgia – Case No. 1-11-CV-01923-TWT. [EXHIBIT 1202.]
On June 29, 2019, WINDSOR paid Stanley Steemer $83.75 to clean the carpets in Building B. [EXHIBIT 1062.]
On June 29, 2019, WINDSOR sent an email to inform owners that he had been reported to the police by the ASSOCIATION or SENTRY MANAGEMENT on June 20, 2019. [EXHIBIT 1088.] [EXHIBIT 1059 at 2:50, I asked “what about the eight open spots on the Board?” CHARLIE ANN ALDRIDGE said the meeting was adjourned. She then ordered WINDSOR to leave the building. The remainder of the video is CHARLIE ANN ALDRIDGE escorting WINDSOR out of the building. Later that day, owner Larry Lunsford informed WINDSOR that two Tavares Police Officers arrived after he left. As the video shows, there was absolutely no basis for reporting WINDSOR to the police.
On June 29, 2019, WINDSOR sent for filing his Response to Respondent’s Motion to Dismiss and Motion to Strike Respondent’s Motion to Dismiss in DBPR Case No. 2019-02-6834. [EXHIBIT 1089.]
On June 29, 2019, WINDSOR sent the DBPR and RUSSELL KLEMM of CLAYTON and MCCULLOH an email with his Motion to Strike the Motion to Dismiss in DBPR Case No. 2019-02-6834. [EXHIBIT 1090.]

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