Update 2/2/2023: I handed hard copies of all these documents to every Board member and Dawn Atwood at the end of last night's Board meeting.
I talked to Kevin and asked him if he planned to call a Board meeting to review the information as I'd requested. He told me to send the request to him through Jacob Ensor. I did that late last night.
Jacob Ensor responded to me this morning and told me he would be discussing it with the Board and hoped to respond back to me next week.
Progress! I'll keep this space updated!
ORIGINAL POST BELOW
Click here to see the email I sent with the attached letter and documents
Click here to download a PDF of the original copy of this letter as sent to the Board
January 20, 2023
Board of Directors for Harbour Isle Condominium East Association Inc
President, Kevin Bryan
c/o Association Manager, Dawn Atwood
6A Harbour Isle East Drive
Fort Pierce FL 34949
CC: Jacob Ensor, Attorney at Law and William Ponsoldt, Attorney at Law
Letter delivered via email as a PDF along with 9 supporting attached files and also posted with links to the Harbour Isle East FYI Website at https://HarbourIsleEastFYI.blogspot.com
Subject: Improper use of Association funds by past Director Stuart White
Directors,
During the last term of the Board of Directors for the Harbour Isle East Condo Association, Director Stuart White, who also served as Vice President, abused his position on the Board in the following ways:
- by engaging the services of the Association attorney, Mr. Jacob Ensor of ROSS EARLE BONAN AND ENSOR PA, to provide legal services for his own personal benefit;
- by using his position as Vice President to have the Association pay for those personal legal services.
These improper actions by Mr. White constitute a breach of Mr. White’s fiduciary duty as an elected member of the Board as described in Florida statute 718.111 (1) which states (my emphasis):
(a) The operation of the condominium shall be by the association, which must be a Florida corporation for profit or a Florida corporation not for profit. However, any association which was in existence on January 1, 1977, need not be incorporated. The owners of units shall be shareholders or members of the association. The officers and directors of the association have a fiduciary relationship to the unit owners. It is the intent of the Legislature that nothing in this paragraph shall be construed as providing for or removing a requirement of a fiduciary relationship between any manager employed by the association and the unit owners. An officer, director, or manager may not solicit, offer to accept, or accept any thing or service of value or kickback for which consideration has not been provided for his or her own benefit or that of his or her immediate family, from any person providing or proposing to provide goods or services to the association. Any such officer, director, or manager who knowingly so solicits, offers to accept, or accepts any thing or service of value or kickback is subject to a civil penalty pursuant to s. 718.501(1)(d) and, if applicable, a criminal penalty as provided in paragraph (d).
However, this paragraph does not prohibit an officer, director, or manager from accepting services or items received in connection with trade fairs or education programs. An association may operate more than one condominium.
(d) As required by s. 617.0830, an officer, director, or agent shall discharge his or her duties in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner he or she reasonably believes to be in the interests of the association. An officer, director, or agent shall be liable for monetary damages as provided in s. 617.0834 if such officer, director, or agent breached or failed to perform his or her duties and the breach of, or failure to perform, his or her duties constitutes a violation of criminal law as provided in s. 617.0834; constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
Further, Mr. White is a Real Estate Sales Associate (SL3273715) licensed through the Department of Business & Professional Regulation of the State of Florida and, as such, is to be held to an even higher standard of trust and conduct than other, unlicensed, members of the Board.
The legal services that personally benefitted Mr. White include multiple consultations with Mr. Ensor, and the drafting and delivery of letters from the attorney to:
- Tenant, Natalie Ochse, on 2/7/2022
- Unit Owner and member of the Association, Walter Lynch, on 2/7/2022
- Unit Owner and member of the Association, Sherry Brown, on 8/12/2022
Copies of these letters are attached to this document as ATTACHMENT 01
Importantly, these letters:
- Are written on behalf of Stuart White, not the Board or the Association;
- Describe only Mr. White’s personal observations of hearsay that can be summarized, “You lied about me”;
- Include threats to use the resources of the HOA to settle personal grievances against individuals – some of whom are, themselves, dues-paying members of the Association;
- Include no references, allusions or mentions of violations of HOA governing docs;
- Were not accompanied by notices of violation from the Association;
- Even had they been sent by the Board or the Association, have no basis or legal standing in any of the governing documents of the Association;
- Specifically, the letters to Mr. Lynch, Ms. Brown and Ms. Ochse did not follow the written and recorded procedures for handling of violations by the HOA;
- Were not discussed, mentioned or voted on by the Board or the Association manager according to publicly posted minutes of meetings as well as responses to official records requests.
In addition to copies of the 3 letters, please also find attached:
- Copies of my Records Requests from 12/11/2022, 12/22/2022, 12/29/2022 and 1/3/2023 [ATTACHMENT 02];
- Emails from Dawn Atwood responding to the records requests [ATTACHMENT 03];
- Copies of invoices from ROSS EARLE BONAN AND ENSOR PA that show time spent and fees charged for each instance of legal services provided by Mr. Ensor to the HOA between 2/3/2022 and 8/31/2022 that were sent by Dawn in response to the records requests [ATTACHMENT 04];
- Copy of First Service Residential Vendor Summary showing the payments made to ROSS EARLE BONAN AND ENSOR PA on behalf of the Harbour Isle East HOA between 1/1/2022 and 12/29/2022 that was sent by Dawn in response to the records requests [ATTACHMENT 05];
- Copies of records requests with handwritten notes from Dawn in response to questions in the records requests [ATTACHMENT 06a and ATTACHMENT 06b];
- Copies of the minutes of Board meetings during the relevant time period, and referenced by Dawn in her response, showing that there were no discussions or votes by the Board about this subject or letters in question [ATTACHMENT 07];
- Copies of 3/3/2022, 7/6/2022, 8/5/2022 and 9/6/2022 invoices from ROSS EARLE BONAN AND ENSOR PA on which I have circled the Service Items directly related to the drafting of these 3 letters [ATTACHMENT 08].
I am still waiting on:
- Copies of emails and notes from phone calls between Mr. White and Mr. Ensor referenced in the specific Service Items I have circled on the invoices from ROSS EARLE BONAN AND ENSOR PA;
- Audio recording and written transcript of any/all 911 call(s) from Ms. Ochse that may shed light on the events between her and Mr. White that led to the sending of these 3 letters. My request for records from the St Lucie County Emergency Services Department is pending.
According to the documentation I am providing, the HOA has been charged $2,805 for legal services related to the drafting of these 3 letters.
The documentation I have put together and am providing to the Board with this letter clearly shows that Mr. Stuart White personally – and illegally - benefitted from his position as described above in 718.111 (1) (a) and should therefore be held liable for monetary damages as described in 718.111 (1) (d).
On behalf of the members of this Association, I respectfully request that this Board ask Mr. White to reimburse the Association $2,805 for these improperly used funds.
Should Mr. White refuse to reimburse the Association for these services, the Association has the right and the responsibility to recover the funds by pursuing legal action against Mr. White to recover the funds, legal expenses and any other damages permitted under Florida law according to Section 19 of our DECLARATION OF CONDOMINIUM (my emphasis):
SECTION 19. COMPLIANCE AND DEFAULT: REMEDIES.
19.1 Duty to Comply: Right to Sue.
19.1.1 Each Owner, Occupant, Guest, tenant and other invitee, and the Association, shall be governed by and shall comply with the provisions of the Condominium Act and the Condominium Documents. Actions for damages, for injunctive relief, for declaratory relief, and I or for failure to comply may be brought by the Association, by an Owner or by an Occupant, Guest, tenant or other invitee occupying a Unit against the following persons (which list is not all inclusive):
19.1 .1.1 The Association;
19.1.1.2 Any Owner;
19.1.1.3 Members of the Board designated by the Developer, for actions taken by them prior to the time control of the Association is assumed by the Unit Owners other than the Developer.
19.1.1.4 Any member of the Board who willfully and knowingly fails to comply with these provisions.
Please know that if the Board decides not to ask Mr. White to reimburse the HOA for the funds he used to financially harm other members and for his personal benefit, that will also constitute a violation of THIS Board’s fiduciary responsibility to act in the best interests of the HOA.
So, this is an opportunity for the Board and Mr. White to do the right thing. It’s the easiest way to right the wrong for the good of the Association. It is entirely reasonable to ask Mr. White to pay the money back.
Thank you,
Jennifer DiBona
3 Harbour Isle East #306
Enclosures:
2023-01-20_ATTACHMENT01_3AttorneyLetters.pdf
2023-01-20_ATTACHMENT02_RecordsRequests.pdf
2023-01-20_ATTACHMENT03_EmailsFromDawnReRecordsRequests.pdf
2023-01-20_ATTACHMENT04_AttorneyInvoices.pdf
2023-01-20_ATTACHMENT05_PaidAttorneyInvoices.pdf
2023-01-20_ATTACHMENT06a_ResponseToRecordsRequest.pdf
2023-01-20_ATTACHMENT06b_ResponseToRecordsRequest.pdf
2023-01-20_ATTACHMENT07_MeetingMinutes.pdf
2023-01-20_ATTACHMENT08_LegalServicesFor3Letters.pdf
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