Coconut Plantation vs MVW litigation

[Winthelawsuit]

It goes without saying that a strong legal team makes a huge difference in any case, but especially one like this involving a large corporation with deep pockets. Otherwise, it makes what’s already an uphill battle virtually impossibl. It makes you wonder how the law firm was chosen.

I think the Board should interview large law firms to see what they say about the case as it now stands. What do the big firms think about adding claims for the implied fiduciary duty of Pelican Landing Timeshare Ventures and for the effective dates for the transfer of the deleted property to Kersey Smoot (and other claims). I have no connection to the law firm Greenberg Traurig, but I would go there first - - it is a very large highly rated law firm with an office in Orlando, which would send a strong signal to the Defendants and the Foley Lardner law firm. I would also contact other large law firms for their opinions and what they would do. Cost would be minimal. I doubt that the Association did a good in selecting its trial counsel. After all, it could me a multimillion dollar law suit if monetary damages were sought - the Association has already received over $40 million over the past 20 years and offered another $7 million a few months ago; so why isn't there a claim for $50 million to cover the next 20+ years (which I previously suggested to the board). And if the Association wins, legal fees would be paid by the Defendants.

I too wonder how the trial counsel was selected. My guess is that both defendants are doing business locally and are relatively small so the Association wanted to use a local law firm thinking that the Defendants would also use a local law firm. Surprise - Pelican Landing, owned by Marriott Vacations Worldwide, went with a first class large law firm with over 1000 lawyers. It's time for the Association to change to a large law firm, possibly keeping the current firm for local matters and for the firm to save face.

Personally, I think that the Becker Poliakoff law firm did a poor job of interviewing the Association to get the factual background when I reviewed the Complaint, and did a poor job in drafting the Complaint based on what is in the Complaint - - probably drafted by a young, inexperienced attorney and signed off by the partner based on the limited info that the firm had.

Now is the time to make the change to a large law firm - - before the mediation starts and before the lawsuit goes forward, which it has not yet done (i.e., document production, depositions, motions, etc.).

 

[ChicagoDave]

I think the Board should interview large law firms to see what they say about the case as it now stands. What do the big firms think about adding claims for the implied fiduciary duty of Pelican Landing Timeshare Ventures and for the effective dates for the transfer of the deleted property to Kersey Smoot (and other claims). I have no connection to the law firm Greenberg Traurig, but I would go there first - - it is a very large highly rated law firm with an office in Orlando, which would send a strong signal to the Defendants and the Foley Lardner law firm. I would also contact other large law firms for their opinions and what they would do. Cost would be minimal. I doubt that the Association did a good in selecting its trial counsel. After all, it could me a multimillion dollar law suit if monetary damages were sought - the Association has already received over $40 million over the past 20 years and offered another $7 million a few months ago; so why isn't there a claim for $50 million to cover the next 20+ years (which I previously suggested to the board). And if the Association wins, legal fees would be paid by the Defendants.

I too wonder how the trial counsel was selected. My guess is that both defendants are doing business locally and are relatively small so the Association wanted to use a local law firm thinking that the Defendants would also use a local law firm. Surprise - Pelican Landing, owned by Marriott Vacations Worldwide, went with a first class large law firm with over 1000 lawyers. It's time for the Association to change to a large law firm, possibly keeping the current firm for local matters and for the firm to save face.

Personally, I think that the Becker Poliakoff law firm did a poor job of interviewing the Association to get the factual background when I reviewed the Complaint, and did a poor job in drafting the Complaint based on what is in the Complaint - - probably drafted by a young, inexperienced attorney and signed off by the partner based on the limited info that the firm had.

Now is the time to make the change to a large law firm - - before the mediation starts and before the lawsuit goes forward, which it has not yet done (i.e., document production, depositions, motions, etc.).

I have no dog in this fight, but everything you say makes sense. A good divorce attorney made a huge difference for me years ago and I’ve been involved in several multi-million dollar lawsuits in my past corporate life and know first hand you better bring a top tier hired gun to the fight or else you’ll get the short end of the stick. A high billable hourly rate doesn’t guarantee they’re a good lawyer/firm, but a low rate or friend of a friend selection almost always turns out bad. Poorly worded motions, poor legal strategies, inexperienced junior level lawyers doing most of the work, lacking in trial experience, etc. will sink your lawsuit faster than anything. I hope the BOD changes course.

 

[Winthelawsuit]

I sent the following more detailed comments to the Board as to why they need to tell trial counsel to amend the Complaint.

I have given some thought as to why I think that the Association WILL NOT win the lawsuit against Pelican Landing Timeshare Ventures and Kersey Smoot (the Defendants) without the Complaint being amended. In reading the Complaint and the Defendants' Answers, it appears to me that the words "ELIMINATES" or "ELIMINATION" of the easements is the key to the lawsuit as it is presently filed with the court. The Association’s Complaint says that EACH OWNER has a nonexclusive drainage easement ONTO the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property. The Defendants essentially say that the "deleted property" would not "eliminate" or result in the "elimination" of the drainage easements granted to the Owners per the Master Declaration.

Article II, Section C, paragraph 2 of the Master Declaration states what Prohibited Deletions are, and the Association’s Complaint says that "Declarant shall not delete, without the approval of all Owners, any Master Property WHICH DELETION (emphasis added) would result in the ELIMINATION of all reasonable ingress and egress rights to a dedicated right of way granted pursuant to Article III, Section H, Paragraph 1 or the ELIMINATION of drainage or utility easement rights granted pursuant to Article III, Section H, paragraph 2."

Article III, Section H, paragraph 2 provides "nonexclusive easement for drainage ONTO (emphasis added) the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property." Basically, the drainage easement provides that rain can run off the roof of a building onto Master Property without causing a problem or it can be fixed. Where do the words "WHICH DELETION" fit into the Association's claim? Does the conveyance of the deleted property to Kersey Smoot eliminate the easement for the existing buildings? I think the answer is "no." Is there an easement for units that have not been built and have no Owners? I think the answer is "no."



I urge the Board to have trial counsel explain why, for the deleted property, where there are no buildings and where there are no Owners for the nonexistent units, but the present Owners have an easement for drainage from their buildings ONTO the Master Property, so that it is legitimate for the Association to claim in its lawsuit that its approval is necessary for the conveyance of the deleted property? Put another way, does the deleted property, located a distance away from the existing buildings, REASONABLY eliminate drainage of water ONTO the Master Property or eliminate access to Utility service? I don't think so. The Association is being UNREASONABLE. I believe that the law requires that “REASONABLE” be associated with the terms of the Master Declaration.

With two of the buildings existing for about twenty years and two of the buildings existing for about five years, there seems to have been no problems with the easements granted to the Owners - - i.e., the right to ingress and egress, and the elimination of drainage onto the Master Property or utility access.

The Master Declaration is written so that it applies as if all of the units have been built. Therefore, the easements to Owners for buildings that would be built on the deleted property are inferred in the Master Declaration. Since buildings have not been built on the deleted property, there are no easements to the nonexistent Owners. So, if the goal had been to build only 96 units, there would be no issue regarding the easements because all of the easements are working as intended. This is the case and the Association is asserting that the Association’s permission to convey the property is required, even though the Association will unreasonably say “No – you do not have my permission.”



Moreover, if the easements were not working as intended, the Declarant would "have the right to relocate and redefine the areas covered by such easements. (Article III, Section I, paragraph 2 of the Master Declaration). The Association must have a “legal” claim in order to win the lawsuit – not a claim on the meaning of the terms of the Master Declaration.

Regarding the timing of the conveyance, had the Defendant Pelican Landing Timeshare Ventures first deleted the property it wanted to sell, then recorded the deletion with Lee County, and then, say a week or a month later conveyed the property to Kersey Smoot, the transfer of the property would have been proper. But the conveyance appears to not have been proper, and the Association won't amend the Complaint for the court to decide whether the conveyance was proper. Similarly, the Association won't amend the Complaint regarding the legal "implied fiduciary duty" obligation of Pelican Landing so that it must continue to pay Shared Expenses going forward.

Unfortunately, the Association is playing games with the Master Declaration to argue that the Association needs to approve the sale of the deleted property. I believe that the Defendants knew they couldn't obtain permission for the sale and as they say, it's easier to ask for forgiveness than it is to ask for permission. In my opinion, the Association will lose the lawsuit if it goes to trial.

The court has now required that the parties engage in mediation to see if they can amicably resolve their dispute. I believe that a competent mediator will see what is going on and push the Association to settle with minimal detriment to the defendants. I believe that the mediation will take place after the time to amend the Complaint will have passed so that the other claims cannot be added. I hope that I'm wrong, but I'll never understand why the Complaint is not being amended to increase the likelihood of success.

 

[Quinte]

Staying at Coconut cove at the moment; trying to figure out why MVW would not be developing more buildings as the resort was designed to host 10. For the last two years we have come here for week two of the Christmas break; it was easier to get units converting our legacy weeks to HPP as there was lots of HPP inventory.

I have not been able to find the London Bay proposed development in that area. Has anyone found it?

 

[dioxide45]

Staying at Coconut cove at the moment; trying to figure out why MVW would not be developing more buildings as the resort was designed to host 10. For the last two years we have come here for week two of the Christmas break; it was easier to get units converting our legacy weeks to HPP as there was lots of HPP inventory.

I have not been able to find the London Bay proposed development in that area. Has anyone found it?

It seems that the property wasn't a big seller. Aren't there two older buildings and two newer ones? It seems that sales were very sluggish and it would take them far too long to sell 10 buildings worth of unit weeks. They deemed there was more value form selling the land in a quick cash sale vs taking years and years to sell the whole resort as timeshare.

The resort is okay, but it isn't anything special. It isn't on the beach and access to the beach isn't ideal. This probably made it a hard resort to sell to perspective buyers.

 

[rdc]

If any indications are in Redweek listings I suspect you are correct as there are many Coconut Cove's for sale with little/no activity. I had been contemplating on moving on from this resort as I haven't stayed there much but used points for other Hyatt locations. As far as II, with the recent change, the points if transferred has a bit less buying power now. Just concerning as to future maintenance costs Hyatt/Marriott backing out of original plan. As there is no realistic resale market, Hyatt/Marriott has offered a no cost exit option if I want to relinquish. Just trying to decide if the future maintenance fees will be on par with vacation values staying at Bonita Springs, other Hyatt locations or an II trade.

 

[GTLINZ]

Staying at Coconut cove at the moment; trying to figure out why MVW would not be developing more buildings as the resort was designed to host 10.

Kal's original site map below shows 14 planned buildings. I am pretty sure construction got shut down a long time ago because of a rare eagle/bird habitat. Building 4 is newer and i believe was sold as HPP. After the land sale, i get conflicting reports as to whether or not they could build another building or 2 on the remaining land.

Coconut Plantation Layout

 

[GTLINZ]

The resort is okay, but it isn't anything special. It isn't on the beach and access to the beach isn't ideal. This probably made it a hard resort to sell to perspective buyers.

@dioxide45 I beg to differ - beautiful resort and the pool area and lazy river are one of the nicest anywhere. True you cannot walk out to the beach, but the boat ride out there is pleasant and they provide chairs and umbrellas and you can take your own cooler. The place is also secluded, which i like but many would not.

See my previous post about what happened with the building plan.

 

[dioxide45]

Kal's original site map below shows 14 planned buildings. I am pretty sure construction got shut down a long time ago because of a rare eagle/bird habitat. Building 4 is newer and i believe was sold as HPP. After the land sale, i get conflicting reports as to whether or not they could build another building or 2 on the remaining land.

Coconut Plantation Layout

If it was due to rare habitat, why or how would another developer come in and buy it? I suspect they want to develop the land.

 

[GTLINZ]

If it was due to rare habitat, why or how would another developer come in and buy it? I suspect they want to develop the land.

Good question as to why they got stopped before but can build now. They are stripping the golf course/land for Ritz Carlton residences and it cannot be environmentally friendly.

Hopefully someone else can chime on the stoppage of the original buildout.

 

[Winthelawsuit]

I sent the below to Association Board and trial counsel.

"I was wondering if the Association's trial counsel plans to take the deposition of William C. Guthrie of the law firm Baker & Hostetler who prepared the "Master Declaration of Covenants, Conditions and Restrictions" involved in the lawsuit. So I "Googled" him and found that Mr. Guthrie is no longer with the Baker & Hostetler firm; he is now the Managing Partner of the Orlando Office of Foley & Lardner - - the law firm representing the Defendant Pelican Landing Timeshare Venture.

It seems to me that the Foley & Lardner law firm had an obligation to disclose its conflict of interest to the Association's Becker & Poliakoff law firm so that the conflict could be addressed. How can our trial counsel effectively depose the lawyer who drafted the Master Declaration as to its meaning and intent when his firm is representing the Defendant? It seems clear to me that he will answer questions in a manner that favors the Defendant. Has this been disclosed to the Association? Please provide me with answers to these questions. There are, of course, other important issues that this raises.

If this has not been properly addressed, I request that the Association and our trial counsel file a motion raising the conflict of interest issue to the court."

 

[GTLINZ]

Previous thread relating to halting construction via 2008 ....

Hyatt Coconut Plantation -Stalled????

Does anyone know what is really going on at Coconut Plantation? I read that they had stopped construction due to nesting of Bald Eagles. I called there today to ask the status and was told that they are redesigning from 3 - 5 story bldgs. Also there was no one available in sales to speak to...

tugbbs.com

 

[Winthelawsuit]

I emailed the following comment regarding the conflict of interest the Foley & Lardner law firm has with the Association in that the Foley firm is/has represented Marriott Vacations Worldwide and is likely obtaining Association confidential information in its involvement in the Association's budgeting process.

"Below is Foley & Lardner info regarding William C. Guthrie's experience as well as a link to their website. Note that he has done, and may still be doing, a lot of work for Marriott Vacations Worldwide (which I highlighted in red). There is no reference to Pelican Landing Timeshare Ventures, the Defendant in the lawsuit that the Association has filed, being represented by Mr. Guthrie or the Foley & Lardner law firm.

However, in the last email from the Board it is stated, "Your Board put in countless hours in an effort to hold the management company, MVW, accountable for a multitude of issues concerning the operation and finances of Coconut Cove. . . From August to November the Board worked with MVW to develop a 2024 budget." But the Master Declaration says in VI.B.1. regarding Shared Expenses that "Shared Area Expenses will be determined on an annual basis by Declarant, in consultation with each Owner or Association . . ."

So please let me know why the management company Marriott Vacations Worldwide is involved in developing the budget rather than Pelican Landing Timeshare Ventures which is the Declarant. Legally, they are separate entities even though MVW may own PLV. (If PLV doesn't own any property so that it doesn't have to pay Shared Expenses, why hasn't the "Declarant" been turned over to the Association?)

Thus, the question may be not only that Foley & Lardner is representing PLV in the lawsuit, Mr. Guthrie of the firm (and highly likely, many other lawyers in the law firm) has represented MVW which is involved in the Association's budgeting process.

Have the lawyers in the lawsuit communicated with Mr. Guthrie about the Master Declaration? I believe that at a minimum there should have been a "Chinese Wall" established regarding contacts between Mr. Guthrie and the Foley trial lawyers. The firm presumably is obtaining Association confidential information in the budgeting process that it can use against the Association in the lawsuit.

I think that it is worth bringing this matter to the court's attention, as well as amending the complaint to add (1) the deletion of property AFTER the sale of the property to Kersey Smoot and (2) the implied fiduciary obligations of the Declarant PLV.

Link to William C. Guthrie https://www.foley.com/people/guthrie-william-c/

Representative Experience (of William Guthrie)​

• Represented Marriott Vacations Worldwide Corporation’s (MVWC) with the spin-off of MVWC from Marriott International as a separate publicly traded company. Foley assisted in the preparation and review of multiple documents related to the spin-off, including a separation and distribution agreement, a license agreement, management services agreements, transition services agreements, and amended and restated agreements with Marriott International.
• Served as lead timeshare and exchange counsel Marriott Vacations Worldwide Corp.’s acquisition of Miami-based ILG.
• Lead timeshare and exchange counsel on behalf of Hilton Grand Vacations Inc. (NYSE: HGV) in its acquisition of Diamond Resorts International, Inc. The stock-based transaction had an equity value of approximately US$1.4bn. The deal combined the largest independent timeshare operator with HGV’s internationally recognized brand to create significant value from scale, while expanding and diversifying HGV’s resort portfolio into more than 20 new markets.
• Foley acted as hospitality and timeshare counsel in KSL Capital Partner’s acquisition from shareholders of interest in Orange Lake Resorts Inc., d/b/a Holiday Inn Vacation Club.
• Represented Marriott Vacations Worldwide in their US$100m sale of VRI, one of the largest independent resort management companies in North America.
• Represented Kingwood International Resorts in the negotiation for acquisition of various assets from LRA OBB, Limited; Resort Holdings (Bahamas) Limited; and G-LA Resorts Holdings LLC of Reunion Cay Resort for a combined US$29m. Represented developer of a 2000 acre planned unit development with planned single homes, condominiums, Palmer-designed golf course, marina, and airport.
• Created a new product structure that enabled Marriott Vacations Worldwide Corporation to continue to receive favorable tax and accounting treatment, yet afforded Marriott a competitive advantage over its competition in the luxury fractional and private residence club industry that had not been previously attained in any segment of the industry.
• Representing Sky Management, a manager of multiple condominium hotel projects that owns or controls related commercial spaces. Due to the economic downturn and difficulty in obtaining financing, the client is managing partially completed projects with many unsold units. The only current viable exit strategy is timeshare or similar product. Florida law prohibits creation of timeshare in many of the projects without a unanimous vote of all owners and mortgagees. Foley created a vacation club product that will enable the client to sell memberships as an exit strategy, without violating any documentary or legal restrictions. This product is a novel exit strategy that is being combined with a regulated timeshare product.
• Represented client in documentation for a large mixed-use project with residential, fractional, and retail. Negotiated a sales, marketing, and management arrangement for developer with Wyndham Vacation Ownership to add the fractional interests to the Wyndham program.
• Represented original developer of 2200 acre planned development community, Reunion Club in Orlando, with single family homes, seven condominiums, timeshare, spa, and golf (Nicklaus, Palmer, and Watson courses). Represented affiliated developers in multiple condominium projects in the community with regarding condominium documentation, registration, and interstate land sales act. Assisted client with restructuring master planned community and advised in connection with association and management issues. Negotiated an extensive sales, marketing, and rebranding arrangement for Ginn-LA Orlando, LLLP with Wyndham Vacation Ownership, Inc., which provided the exit strategy for a large condominium project with 275 unsold condominium units. This allowed the successful relaunch of a product that had been caught in the economic woes of the economy. The ability to provide for the exit strategy came from the initial condominium documents in which Foley reserved the right to have a timeshare and fractional product. Negotiated a hypothecation receivables loan on behalf of the developer. Continue to represent subsequent developer who purchased remaining assets in community.
• Served as lead counsel to Hilton Grand Vacations Inc. in its US$50m acquisition of a portion of the DoubleTree by Hilton Hotel Chicago−Magnificent Mile.
• Represented large publicly traded hospitality company in the acquisition of the Declan Suites Hotel in downtown San Diego, California, for an aggregate purchase price of approximately US$55m.
• Advised Realmark Realty Group in connection with condominium structure, documentation, registration, operations and management issues in connection with five condominiums and master-planned communities.
• Represented major branded hospitality company in a fee-for-service deal with the developers of project in Tuscany, Italy. Successfully registered product for sale in Florida."

 

[scd]

An Important Message from the majority of the Board of Directors at Coconut Plantation:


As promised the Board wants each and every owner to be up to date on the important issues that concerns your ownership at the Coconut Plantation (Cove).


First the Association/Board legal counsel has filed in Lee County Florida a lawsuit regarding the sale of the undeveloped property by Marriott Vacations Worldwide to the London Bay Group. The suit was filed in late July and both MVW and London Bay were served subpoenas that require a response roughly by the first of September. The basis of our suit is that MVW conveyed the property illegally without our approval and because of that the shared area responsibility still exists. As you know, because of the land sale MVW has suspended making any payments to the shared area expenses which will result in a very large deficit this year and an enormous additional burden to each and every owner in the future.


The recent destinations issue from MVW included substantial information about the hurricane Ian recovery effort and in particular emphasis on the elevators. More to come on the elevator issues and the hurricane preparedness and recovery! In prior years and issues, the Coconut Plantation Board President always included a message from your association. The board has decided to no longer contribute to the destination newsletter for a number of reasons. First, it has become too much of a corporate self serving propaganda publication. Second, several submissions by the board have been edited in an effort to make the MVW/ management company look better. Thirdly, we now have this, our own Association newsletter.


At the most recent board of directors meeting held last week, the MVW/ management company presented to the board their proposed 2024 budget. Their submission calls for a maintenance fee of just under $2500.00 per unit week which represents approximately a $800.00 increase over last year's operating budget. Last year’s budget was approximately $2000.00, however $300.00 of that was a one time special assessment for hurricane Ian recovery. As you might expect over half of the increase is due to MVW no longer contributing to the shared area expenses. Presently the board is working with our professional financial and legal teams in an effort to respond to this ridiculous budget. We will keep you posted on any new developments and we would very much like your assistance and thoughts on this matter.


Please know that the board sincerely wishes that this communication was more optimistic and upbeat. We all purchased our weeks with the goal of having an enjoyable place to take our families on vacation. Unfortunately the timeshare world has changed dramatically in the last 6-10 years, and despite all the corporate hype with new name changes, more this, and better that, not for the better! Behind all the smiling faces at the resort, which we feel are sincere, is a multinational, multi billion dollar corporation who’s corporate greed knows no limits. While the tasks are difficult, your board of directors is committed to protecting all of your owner rights and financial obligations. Once again, please do not hesitate to reach out to us with any questions or concerns you may have.


With every good wish, we remain

Your Coconut Plantation Association Board of Directors



Sent from my Pixel 7 Pro using Tapatalk

The last time I was there and went into the sales center to see what was going on with the newer points program (it was a few years ago when the sales center was open), the sales staff was amazingly rude. The sales manager told me I don't have a deeded week (I do as I bought in 2003) and when I didn't take their offer to "upgrade my ownership" that even though I was "younger than the average owner" he would "wait me out" as in wait until I died to get my week back. I haven't been back because the hurricane did so much damage and then I converted the points to Hyatt World program. I just want to know what in the heck is going on with that place? It seems like the whole thing is a mess.

 

[scd]

Staying at Coconut cove at the moment; trying to figure out why MVW would not be developing more buildings as the resort was designed to host 10. For the last two years we have come here for week two of the Christmas break; it was easier to get units converting our legacy weeks to HPP as there was lots of HPP inventory.

I have not been able to find the London Bay proposed development in that area. Has anyone found it?

When I bought my week back in May 2003, I was told there would be 14 buildings. Of course, all of that was before the hold due to the ospreys.

 

[scd]

Good question as to why they got stopped before but can build now. They are stripping the golf course/land for Ritz Carlton residences and it cannot be environmentally friendly.

Hopefully someone else can chime on the stoppage of the original buildout.

I bought a week back in May 2003 before the building was halted. After the remaining build out was stopped, I was later told it had to do with a pair of nesting Ospreys. If memory serves me, there were a certain number of years that building could not be done because of the nest. I am sure that is from a bygone time as environmental concerns from development are being set aside in FL more and more.

 

[wendyleighj]

I sent the following more detailed comments to the Board as to why they need to tell trial counsel to amend the Complaint.

I have given some thought as to why I think that the Association WILL NOT win the lawsuit against Pelican Landing Timeshare Ventures and Kersey Smoot (the Defendants) without the Complaint being amended. In reading the Complaint and the Defendants' Answers, it appears to me that the words "ELIMINATES" or "ELIMINATION" of the easements is the key to the lawsuit as it is presently filed with the court. The Association’s Complaint says that EACH OWNER has a nonexclusive drainage easement ONTO the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property. The Defendants essentially say that the "deleted property" would not "eliminate" or result in the "elimination" of the drainage easements granted to the Owners per the Master Declaration.

Article II, Section C, paragraph 2 of the Master Declaration states what Prohibited Deletions are, and the Association’s Complaint says that "Declarant shall not delete, without the approval of all Owners, any Master Property WHICH DELETION (emphasis added) would result in the ELIMINATION of all reasonable ingress and egress rights to a dedicated right of way granted pursuant to Article III, Section H, Paragraph 1 or the ELIMINATION of drainage or utility easement rights granted pursuant to Article III, Section H, paragraph 2."

Article III, Section H, paragraph 2 provides "nonexclusive easement for drainage ONTO (emphasis added) the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property." Basically, the drainage easement provides that rain can run off the roof of a building onto Master Property without causing a problem or it can be fixed. Where do the words "WHICH DELETION" fit into the Association's claim? Does the conveyance of the deleted property to Kersey Smoot eliminate the easement for the existing buildings? I think the answer is "no." Is there an easement for units that have not been built and have no Owners? I think the answer is "no."



I urge the Board to have trial counsel explain why, for the deleted property, where there are no buildings and where there are no Owners for the nonexistent units, but the present Owners have an easement for drainage from their buildings ONTO the Master Property, so that it is legitimate for the Association to claim in its lawsuit that its approval is necessary for the conveyance of the deleted property? Put another way, does the deleted property, located a distance away from the existing buildings, REASONABLY eliminate drainage of water ONTO the Master Property or eliminate access to Utility service? I don't think so. The Association is being UNREASONABLE. I believe that the law requires that “REASONABLE” be associated with the terms of the Master Declaration.

With two of the buildings existing for about twenty years and two of the buildings existing for about five years, there seems to have been no problems with the easements granted to the Owners - - i.e., the right to ingress and egress, and the elimination of drainage onto the Master Property or utility access.

The Master Declaration is written so that it applies as if all of the units have been built. Therefore, the easements to Owners for buildings that would be built on the deleted property are inferred in the Master Declaration. Since buildings have not been built on the deleted property, there are no easements to the nonexistent Owners. So, if the goal had been to build only 96 units, there would be no issue regarding the easements because all of the easements are working as intended. This is the case and the Association is asserting that the Association’s permission to convey the property is required, even though the Association will unreasonably say “No – you do not have my permission.”



Moreover, if the easements were not working as intended, the Declarant would "have the right to relocate and redefine the areas covered by such easements. (Article III, Section I, paragraph 2 of the Master Declaration). The Association must have a “legal” claim in order to win the lawsuit – not a claim on the meaning of the terms of the Master Declaration.

Regarding the timing of the conveyance, had the Defendant Pelican Landing Timeshare Ventures first deleted the property it wanted to sell, then recorded the deletion with Lee County, and then, say a week or a month later conveyed the property to Kersey Smoot, the transfer of the property would have been proper. But the conveyance appears to not have been proper, and the Association won't amend the Complaint for the court to decide whether the conveyance was proper. Similarly, the Association won't amend the Complaint regarding the legal "implied fiduciary duty" obligation of Pelican Landing so that it must continue to pay Shared Expenses going forward.

Unfortunately, the Association is playing games with the Master Declaration to argue that the Association needs to approve the sale of the deleted property. I believe that the Defendants knew they couldn't obtain permission for the sale and as they say, it's easier to ask for forgiveness than it is to ask for permission. In my opinion, the Association will lose the lawsuit if it goes to trial.

The court has now required that the parties engage in mediation to see if they can amicably resolve their dispute. I believe that a competent mediator will see what is going on and push the Association to settle with minimal detriment to the defendants. I believe that the mediation will take place after the time to amend the Complaint will have passed so that the other claims cannot be added. I hope that I'm wrong, but I'll never understand why the Complaint is not being amended to increase the likelihood of success.

Your December and January communications are excellent and provide valuable background information of the associations' documents. Have you received any responses to the three which you reference submitting?

 

[Winthelawsuit]

The only reply that I have gotten from the Board is that they are forwarding my emails to the Association's trial counsel, Becker & Poliakoff. I've sent several more emails with the hope that they are getting sent to the Association's trial counsel. If you want to see the documents filed with the court by both the Plaintiff and the Defendants, Google "Lee County Lawsuit Search" which should lead you to "Lee County Clerk of Court Records" which gives you the ability to access the court's web site using your email and a password. Once that is done you can log into the site and access our lawsuit under "Case Number 23-CA-008717"

On January 18, 2024 the Association's lawyers filed its Witness List and Documents that the Defendant's must produce to the them. With the expectation that my emails will be forwarded to the Association's lawyers I sent these two emails to the Board:

1. "You may want to confirm with B&P lawyers that they have considered adding Carol Fuggi and Lisa Van Dien to the witness list and requesting any documents that they may have relating to the sale/purchase of the Subject Property.

Carol Fuggi was the person who notarized most of the documents involved - - and she "acknowledged" the documents BEFORE they were signed. The Special Warranty Deed says that it was "made and executed as of the 24th day of April, 2023." How could the Deed be acknowledged on April 20 if it was "made and executed" on April 24?

Lisa Van Dien is an attorney for "London Bay" who "prepared" the Special Warranty Deed and it was to be "returned" to her (presumably after filing with Lee County for London Bay's records). Deposing her may be a good way to get access to London Bay documents too, rather than relying completely on Kersey Smoot, as well as finding relevant details. Carol Fuggi notarized the Deed.

For example, I don't know if Kersey Smoot is a subsidiary or an affiliate of London Bay. This may be relevant because (as B&P presumably is aware of) the Written Consent of the General Partner of PLV (dated April 3, 2023) says in the first Whereas Clause, "Whereas the Partnership and London Bay Development Group, LLC ("Purchaser") have entered into that certain Purchase and Sale Agreement dated April 12, 2022 (the "PSA") pursuant to which the Partnership desires to sell to Purchaser, and Purchaser desires to purchase from the Partnership, certain assets as more fully described in the PSA (the "Assets")."

How did Kersey Smoot enter the picture since they are different companies (i.e., different "individuals" under the law). That is what Bramuchi and Holton (not an officer of PLV) have been authorized to sign documents for - - sale to London Bay Development Group; not Kersey Smoot. Why was the sale to Kersey Smoot made? Basically, was Holton's execution of the Special Warranty Deed in favor of Kersey Smooth authorized by PLV because he was authorized to transfer the "Assets" (Subject Property?) only to the London Bay Development Group? Did Lisa Van Dien know about the Written Consent's authority? The Written Consent was dated only a few weeks before the Deed was prepared so why not make it to Kersey Smoot? What did Carol Fuggi know about the date the Deed was signed by Holton? Also, about the Date the Deed was prepared?

FYI - - The attached link contains this language:
"However, the date of the signature (i.e., the date on which the signer actually set the pen to paper) cannot be a date in the future. The reason is that it's impossible to notarize a signature on January 1 if the signature wasn't made until January 2. The discrepancy between the signature date and notarization date could cause the document to be rejected."

https://www.notarypublicstamps.com/articles/can-i-notarize-a-document-dated-in-the-future/ "


2. "FYI - Sometimes things slip past a person when they read what they think a document says, but it really uses different words, so be sure to tell B&P lawyers that the Deed uses the words "made and EXECUTED" and not "made and EFFECTIVE" as the Master Declaration does.

The "execution" date is the date when the Agreement is signed. The "effective" date is when the parties agree that the Agreement is enforceable and that date can be before, on or after the date that the Agreement was executed.

Similarly, the Notice of Deletion document says that it "is executed" on April 24, 2023 but notarized on April 21. And the Declaration of Buildout says at the end that it was "executed" as of the 24th of April 2023 but notarized on April 21, 2003. A notary can not "acknowledge" on April 21st a document that was "executed" on April 21. The same holds true for Partial Non-Exclusive Assignment of Easement.

To me the only one that is important is the Notice of Deletion which Paragraph II.C.1. which requires that to be effective
is "by executing and filing of record" [with Lee County] a Notice of Deletion from the Master Declaration. It was "executed" on April 24th according to the document but notarized on April 21st. So, the latest it was signed on was April 24; may have been signed on the 21st; but, in any event, it was FILED in the records in Lee County on April 25th - - which is after the Special Warranty Deed transferring the property was effective - - executed April 24th or notarized on April 20th. In either case the Subject Property was legally transferred no later than April 24th, but the Deletion was not effective until April 25th when there was a "filing of record." It seems to me that if PLV Deletion was not effective because it didn't own the Subject Property, PLV still has the obligation to pay. Moreover, PLV can not Delete the property now since it no longer owns the property. So the B&P lawyers need to be careful in their arguments so that only the Notice of Deletion effective date and the effective date of the Deed transferring the property to Kersey Smoot are in play. Don't want to risk everything being tossed out so that things can be done right in the future.

I hope this sinks into everyone involved if this approach is done carefully and correctly."


I think the approach the Association's lawyer's are taking has a 50-50 chance of winning. I think that the argument that the Defendant Pelican Landing Timeshare Ventures ("PLV") transfer of the property to Kersey Smoot was effective before the Deletion of the Property from the Master Declaration was effective, so PLV could not legally Delete the Property from the Master Declaration has a much greater chance of success (FYI - transfer of real property is effective when signed - - recording is only for the benefit of third parties in the future). Also, the Association and its lawyers are not arguing that PLV has an "implied fiduciary obligation" to continue to pay its 70% of the Shared Expenses. Obviously, both of these arguments would need discovery but since the arguments are not before the court there will be no discovery.

Why they want to "put all of their eggs in one basket" instead of in three is beyond logic.

 

[BAT]

An Important Message from the majority of the Board of Directors at Coconut Plantation:


As promised the Board wants each and every owner to be up to date on the important issues that concerns your ownership at the Coconut Plantation (Cove).


First the Association/Board legal counsel has filed in Lee County Florida a lawsuit regarding the sale of the undeveloped property by Marriott Vacations Worldwide to the London Bay Group. The suit was filed in late July and both MVW and London Bay were served subpoenas that require a response roughly by the first of September. The basis of our suit is that MVW conveyed the property illegally without our approval and because of that the shared area responsibility still exists. As you know, because of the land sale MVW has suspended making any payments to the shared area expenses which will result in a very large deficit this year and an enormous additional burden to each and every owner in the future.


The recent destinations issue from MVW included substantial information about the hurricane Ian recovery effort and in particular emphasis on the elevators. More to come on the elevator issues and the hurricane preparedness and recovery! In prior years and issues, the Coconut Plantation Board President always included a message from your association. The board has decided to no longer contribute to the destination newsletter for a number of reasons. First, it has become too much of a corporate self serving propaganda publication. Second, several submissions by the board have been edited in an effort to make the MVW/ management company look better. Thirdly, we now have this, our own Association newsletter.


At the most recent board of directors meeting held last week, the MVW/ management company presented to the board their proposed 2024 budget. Their submission calls for a maintenance fee of just under $2500.00 per unit week which represents approximately a $800.00 increase over last year's operating budget. Last year’s budget was approximately $2000.00, however $300.00 of that was a one time special assessment for hurricane Ian recovery. As you might expect over half of the increase is due to MVW no longer contributing to the shared area expenses. Presently the board is working with our professional financial and legal teams in an effort to respond to this ridiculous budget. We will keep you posted on any new developments and we would very much like your assistance and thoughts on this matter.


Please know that the board sincerely wishes that this communication was more optimistic and upbeat. We all purchased our weeks with the goal of having an enjoyable place to take our families on vacation. Unfortunately the timeshare world has changed dramatically in the last 6-10 years, and despite all the corporate hype with new name changes, more this, and better that, not for the better! Behind all the smiling faces at the resort, which we feel are sincere, is a multinational, multi billion dollar corporation who’s corporate greed knows no limits. While the tasks are difficult, your board of directors is committed to protecting all of your owner rights and financial obligations. Once again, please do not hesitate to reach out to us with any questions or concerns you may have.


With every good wish, we remain

Your Coconut Plantation Association Board of Directors



Sent from my Pixel 7 Pro using Tapatalk

Does anyone know what currently is going on at The Coconut Cove (Plantation)? A guest at the resort recently has indicated that the current relationship between Marriott and the Association Board is very bad, with numerous threats of law suits. A lot of negative comments about Marriott around the pools.

 

[Winthelawsuit]

A lawsuit has been filed against Pelican Landing Timeshare Ventures ("PLV") which has owned the property since the beginning and PLV has apparently been purchased by Marriott Vacations Worldwide ("MVW"). So legally, PLV is a subsidiary of MVW but they are also separate companies, essentially meaning that the parent company, MVW, is not a defendant in the lawsuit. Similarly, London Bay Group is not a defendant in the lawsuit. Kersey Smoot Investments ("KSI") appears to be an affiliate or subsidiary of London Bay Group. But in the end, the defendants are PLV and KSI, not the parent companies (with more money and power) MVW and London Bay Group.

The Association representing the owners of timeshares is arguing that PLV did not request and obtain the Association's permission to delete from the Master Declaration the property that it transferred to KSI and therefore PLV (or KSI) has the obligation to pay 70% of the annual Shared Expenses to maintain the timeshare property (Coconut Cove) as it did for the past 20 years. PLV is arguing that it did not need to get the Association's permission to transfer the property to KSI, presumably because the easements granted to Owners were not "extinguished."

I have suggested that the lawsuit Complaint be amended to argue that PLV transferred the property to KSI before it deleted the property from the Master Declaration and therefore the deletion is ineffective because PLV no longer owned the property. I also urged that the Complaint be amended to argue that PLV has an "implied fiduciary obligation" to continue to pay 70% of the Shared Expenses because the Association has relied on PLV's $2 million payment each year for the past 20 years.

If you want for details you should review all of the posts here and the documents on the court's web site as set forth above.

Hope this short summary helps you understand what is going on in the lawsuit.

 

[wendyleighj]

The only reply that I have gotten from the Board is that they are forwarding my emails to the Association's trial counsel, Becker & Poliakoff. I've sent several more emails with the hope that they are getting sent to the Association's trial counsel. If you want to see the documents filed with the court by both the Plaintiff and the Defendants, Google "Lee County Lawsuit Search" which should lead you to "Lee County Clerk of Court Records" which gives you the ability to access the court's web site using your email and a password. Once that is done you can log into the site and access our lawsuit under "Case Number 23-CA-008717"

On January 18, 2024 the Association's lawyers filed its Witness List and Documents that the Defendant's must produce to the them. With the expectation that my emails will be forwarded to the Association's lawyers I sent these two emails to the Board:

1. "You may want to confirm with B&P lawyers that they have considered adding Carol Fuggi and Lisa Van Dien to the witness list and requesting any documents that they may have relating to the sale/purchase of the Subject Property.

Carol Fuggi was the person who notarized most of the documents involved - - and she "acknowledged" the documents BEFORE they were signed. The Special Warranty Deed says that it was "made and executed as of the 24th day of April, 2023." How could the Deed be acknowledged on April 20 if it was "made and executed" on April 24?

Lisa Van Dien is an attorney for "London Bay" who "prepared" the Special Warranty Deed and it was to be "returned" to her (presumably after filing with Lee County for London Bay's records). Deposing her may be a good way to get access to London Bay documents too, rather than relying completely on Kersey Smoot, as well as finding relevant details. Carol Fuggi notarized the Deed.

For example, I don't know if Kersey Smoot is a subsidiary or an affiliate of London Bay. This may be relevant because (as B&P presumably is aware of) the Written Consent of the General Partner of PLV (dated April 3, 2023) says in the first Whereas Clause, "Whereas the Partnership and London Bay Development Group, LLC ("Purchaser") have entered into that certain Purchase and Sale Agreement dated April 12, 2022 (the "PSA") pursuant to which the Partnership desires to sell to Purchaser, and Purchaser desires to purchase from the Partnership, certain assets as more fully described in the PSA (the "Assets")."

How did Kersey Smoot enter the picture since they are different companies (i.e., different "individuals" under the law). That is what Bramuchi and Holton (not an officer of PLV) have been authorized to sign documents for - - sale to London Bay Development Group; not Kersey Smoot. Why was the sale to Kersey Smoot made? Basically, was Holton's execution of the Special Warranty Deed in favor of Kersey Smooth authorized by PLV because he was authorized to transfer the "Assets" (Subject Property?) only to the London Bay Development Group? Did Lisa Van Dien know about the Written Consent's authority? The Written Consent was dated only a few weeks before the Deed was prepared so why not make it to Kersey Smoot? What did Carol Fuggi know about the date the Deed was signed by Holton? Also, about the Date the Deed was prepared?

FYI - - The attached link contains this language:
"However, the date of the signature (i.e., the date on which the signer actually set the pen to paper) cannot be a date in the future. The reason is that it's impossible to notarize a signature on January 1 if the signature wasn't made until January 2. The discrepancy between the signature date and notarization date could cause the document to be rejected."

https://www.notarypublicstamps.com/articles/can-i-notarize-a-document-dated-in-the-future/ "


2. "FYI - Sometimes things slip past a person when they read what they think a document says, but it really uses different words, so be sure to tell B&P lawyers that the Deed uses the words "made and EXECUTED" and not "made and EFFECTIVE" as the Master Declaration does.

The "execution" date is the date when the Agreement is signed. The "effective" date is when the parties agree that the Agreement is enforceable and that date can be before, on or after the date that the Agreement was executed.

Similarly, the Notice of Deletion document says that it "is executed" on April 24, 2023 but notarized on April 21. And the Declaration of Buildout says at the end that it was "executed" as of the 24th of April 2023 but notarized on April 21, 2003. A notary can not "acknowledge" on April 21st a document that was "executed" on April 21. The same holds true for Partial Non-Exclusive Assignment of Easement.

To me the only one that is important is the Notice of Deletion which Paragraph II.C.1. which requires that to be effective
is "by executing and filing of record" [with Lee County] a Notice of Deletion from the Master Declaration. It was "executed" on April 24th according to the document but notarized on April 21st. So, the latest it was signed on was April 24; may have been signed on the 21st; but, in any event, it was FILED in the records in Lee County on April 25th - - which is after the Special Warranty Deed transferring the property was effective - - executed April 24th or notarized on April 20th. In either case the Subject Property was legally transferred no later than April 24th, but the Deletion was not effective until April 25th when there was a "filing of record." It seems to me that if PLV Deletion was not effective because it didn't own the Subject Property, PLV still has the obligation to pay. Moreover, PLV can not Delete the property now since it no longer owns the property. So the B&P lawyers need to be careful in their arguments so that only the Notice of Deletion effective date and the effective date of the Deed transferring the property to Kersey Smoot are in play. Don't want to risk everything being tossed out so that things can be done right in the future.

I hope this sinks into everyone involved if this approach is done carefully and correctly."


I think the approach the Association's lawyer's are taking has a 50-50 chance of winning. I think that the argument that the Defendant Pelican Landing Timeshare Ventures ("PLV") transfer of the property to Kersey Smoot was effective before the Deletion of the Property from the Master Declaration was effective, so PLV could not legally Delete the Property from the Master Declaration has a much greater chance of success (FYI - transfer of real property is effective when signed - - recording is only for the benefit of third parties in the future). Also, the Association and its lawyers are not arguing that PLV has an "implied fiduciary obligation" to continue to pay its 70% of the Shared Expenses. Obviously, both of these arguments would need discovery but since the arguments are not before the court there will be no discovery.

Why they want to "put all of their eggs in one basket" instead of in three is beyond logic.

 

[wendyleighj]

A lawsuit has been filed against Pelican Landing Timeshare Ventures ("PLV") which has owned the property since the beginning and PLV has apparently been purchased by Marriott Vacations Worldwide ("MVW"). So legally, PLV is a subsidiary of MVW but they are also separate companies, essentially meaning that the parent company, MVW, is not a defendant in the lawsuit. Similarly, London Bay Group is not a defendant in the lawsuit. Kersey Smoot Investments ("KSI") appears to be an affiliate or subsidiary of London Bay Group. But in the end, the defendants are PLV and KSI, not the parent companies (with more money and power) MVW and London Bay Group.

The Association representing the owners of timeshares is arguing that PLV did not request and obtain the Association's permission to delete from the Master Declaration the property that it transferred to KSI and therefore PLV (or KSI) has the obligation to pay 70% of the annual Shared Expenses to maintain the timeshare property (Coconut Cove) as it did for the past 20 years. PLV is arguing that it did not need to get the Association's permission to transfer the property to KSI, presumably because the easements granted to Owners were not "extinguished."

I have suggested that the lawsuit Complaint be amended to argue that PLV transferred the property to KSI before it deleted the property from the Master Declaration and therefore the deletion is ineffective because PLV no longer owned the property. I also urged that the Complaint be amended to argue that PLV has an "implied fiduciary obligation" to continue to pay 70% of the Shared Expenses because the Association has relied on PLV's $2 million payment each year for the past 20 years.

If you want for details you should review all of the posts here and the documents on the court's web site as set forth above.

Hope this short summary helps you understand what is going on in the lawsuit.

I assume that you are an owner at CP/CC and that you are an attorney. Am I correct? Your apparent knowledge of the associations' documents and the parties involved is very insightful. I've replied to you previously and have reviewed the lawsuit using the link you provided. I'm very interested in the legal implications of the suit. I'm a 26-year owner of multiple shares at the Mountain Lodge, having served on the BOD for 12 years, 10 as president. I value a fellow HVC owner having an interest and desire to familiarize themselves with official documents. How is it possible to connect with you?

 

[Winthelawsuit]

My email address is "loser.gary@gmail.com'' if you want to contact me.

You are correct that I am an attorney, but I retired from practicing law quite a few years. However, I am still an active member of the Bar of the District of Columbia.

 

[Winthelawsuit]

I submitted the below letter to the court to see if the judge will investigate whether the Defendant's law firm, Foley & Lardner, has complied with Florida's ethics rules for attorneys because the firm is representing PLV, the named defendant, which is a subsidiary of MVW, and John Geller, the President and CEO of MVW (appointed January 1, 2023 - right before all this started), is also a senior executive in PLV. Hyatt Vacations is a "business unit" of MVW and Hyatt Vacations in the Management Company for the Association. So, in the end, the Defendant's law firm is representing a company (PLV) owned by MVW and ignoring MVW's contractual fiduciary obligation to the Association to "serve the Association's interests at all times." Hopefully, the judge will disqualify the Foley & Lardner law firm from representing PLV in the litigation.


"I previously submitted a letter to Your Honor dated September 29, 2023 which was entered into the Court’s Records on October 4, 2023 regarding the Defendants’ Motion to Dismiss, which motion Your Honor denied.

My wife and I have been the “Owners” of four (4) weeks of timeshares at the Hyatt Coconut Plantation since 2004. Consequently, I have been following this litigation as much as possible using public information to ensure that our ownership interests are protected.

I respectfully request Your Honor to sua sponte determine whether the Defendant’s law firm, Foley & Lardner, is in compliance with the Ethics Rules imposed on Florida Bar members regarding the firm’s representation of Defendant Pelican Landing Timeshare Ventures (“PLV”) or if the law firm should be disqualified from representing Defendant PLV for the reasons set forth hereinbelow.

The Master Declaration of Covenants, Conditions and Restrictions of the Coconut Plantation Condominium Association (“Master Declaration”) prohibits “Owners” from acting regarding the provisions of the Master Declaration, which the present litigation concerns. Thus, I am unable to protect my interests in this litigation. See, for example, page 2 of the Master Declaration’s definition of “Association” which says, “. . . The Association shall be the only representative authorized to act on behalf of a member or members of such Association, including any Owners, with respect to the provisions of this Master Declaration. . . .” The Master Declaration is attached to the Complaint filed by the Plaintiff Association.

On January 10, 2024 Defendant Kersey Smoot disclosed in its filing with the Court its Fact Witness List, which included William C. Guthrie, Esq. and William Vanos, Esq. The Master Declaration says on its first page that “This instrument was prepared by and return to: William C. Guthrie, Esq., Baker & Hostetler, LLP, 200 S. Orange Avenue, Orlando, FL 32802, 407-649-6497.” I believe that the Master Declaration was prepared for PLV, the Defendant in the present litigation.

I did a “Google” search for William C. Guthrie and found that Mr. Guthrie is no longer with the Baker & Hostetler law firm. I found that Mr. Guthrie is now the “managing partner of Foley & Lardner LLP’s Orlando Office and co-chair of the Hospitality & Leisure Industry Team.” His “Representative Experience” discloses that Mr. Guthrie has Marriott Vacations Worldwide Corporation (“MVW”) as an important client in that he has done significant work on MVW’s behalf. [See attached Exhibit 1, Foley and Lardner’s website description of Mr. Guthrie.] Thus, Mr. Guthrie is the managing partner of the law firm representing Defendant PLV and Mr. Guthrie also represents MVW in legal matters.

After learning that Mr. Guthrie was with the Foley & Lardner firm and that he had done significant work for MVW, I asked an Association Board Member to provide me with a copy of the Association’s “Management Contract” to find out if MVW was the Management Company responsible for managing the resort property since its acquisition of Hyatt’s interest about five (5) years prior.

Mr. Rey Martinez, Area General Manager, Hyatt Vacation Club, provided me with a copy of the “Management Contract” between Coconut Plantation Condominium Association and Hyatt Vacation Management Corporation. I believe that MVW assumed responsibility for this Agreement with its purchase of the Hyatt resort and that the Hyatt Vacation Club is “a business unit” if MVW. [See attached Exhibit 2, a partial MVW web site description of Ms. Stephanie Butera as Executive Vice President and Chief Operating Officer of Hyatt Vacation Ownership stating that “Hyatt Vacation Ownership (HVO), is a business unit of MVW.”]

The Management Contract [See attached Exhibit 3] provides in paragraph 7 – Fiduciary Duty that, “The Management Company [i.e., MVW] shall act in a fiduciary capacity with respect to the proper protection of and the accounting for the Association’s assets. In this capacity, the Management Company shall deal at arm’s length with all third parties and shall serve the Association’s interests at all times . . .” (Emphasis added). Paragraph 8 provides that “The Management Company [i.e., Hyatt Vacation Management Corporation] may assign this contract, without the consent of the Association, to . . . (b) to any assignee who also acquires all, or substantially all, of the assets of Management Company, . . .”

I believe that MVW properly acquired the assets and assumed responsibility for the Management Contract, including the responsibility to serve the Association’s best interests at all times. However, this raised the question to me of whether MVW was complying with its fiduciary obligation to “serve the Association’s interests at all times” in that MVW has allowed its subsidiary PLV to employ the Foley & Lardner law firm to defend it in the present litigation.

This fiduciary obligation became more important when I learned that MVW was involved in meetings with the Association for the preparation of the Association’s annual budget. I believe that such meetings and other communications would have included confidential information concerning the operation and finances of the Association as required by paragraph 6.d. Annual Budget provision of the Management Contract. In an email sent to Association Owners on January 4, 2024 the Board said that it had “put in countless hours in an effort to hold the management company, MVW, accountable for a multitude of issues concerning the operation and finances of Coconut Cove” [the resort property name was recently changed from Coconut Plantation to Coconut Cove]. The present litigation revolves around operational and financial matters of the Association and, therefore, I became more concerned that MVW may be disclosing Association confidential financial and operational information to the Foley & Lardner law firm which would benefit Defendant PLV.

I understand that the Association is considering not renewing the Management Contract with MVW when it expires in August 2024. This may be because MVW has breached its fiduciary obligations to the Association under the Management Contract and, in addition, provides the possibility of future litigation with MVW and Foley & Lardner because of any such breach.

As a result of my increased concern, I Googled Kevin A. Reck, who is the “first chair” partner representing Defendant PLV. The Foley & Lardner web site discloses that Mr. Reck “currently serves as chair of the firm’s Orlando Litigation Department” [See attached Exhibit 5]. I believe that Mr. Reck must be having extensive communications with managing partner Mr. Guthrie, who drafted the Master Declaration involved in this litigation, and these two individuals may have have obtained detailed confidential information from MVW individuals involved in MVW’s meetings with the Association for preparing the Association’s Annual Budget.

I next Googled William Vanos, who Kersey Smoot also identified as a Fact Witness in its filing with the Court. I found in the Florida Bar Association’s web site that Mr. Vanos is employed by MVW [Florida Bar association profile] and that he is a Senior Vice President and Associate General Counsel at MVW [per LinkedIn web site] [ See both attached as Exhibit 6]. This concerns me as well because it indicates that Kersey Smoot, which purchased the property from PLV, knows that MVW, via MVW’s Associate General Counsel, has relevant information regarding PLV – and MVW is not a Defendant in the present litigation. Why isn’t Kersey Smoot instead relying on information within the knowledge of PLV? One can only conclude that there are ongoing conversations between and among representatives of PLV, the Foley & Lardner law firm and MVW.

In order to further try to understand what appeared to be taking place, I Googled John E. Geller, who signed both the Notice of Deletion and the Notice of Buildout in his capacity of Executive Vice President, HTS-Coconut Point, Inc., the General Partner of PLV [both documents are attached to the Complaint filed by the Association]. The Google result that I obtained has me even more concerned because Mr. Geller is a link to the defendant PLV and MVW. Mr. Geller is not only the Executive Vice President of HTS-Coconut Point, Inc. - - he is also the President and Chief Executive Officer of MVW appointed in January 2021. [See attached Exhibit 7.]

To determine whether Mr. Geller had relinquished his Executive Vice President position with HTS-Coconut Point, the general partner for PLV, in January 2021 because of his promotion within MVW, I Googled the Florida business records. There I found that Mr. Geller on April 22, 2023, only a few days before the relevant documents involved in the present litigation were filed with Lee County, Mr. Geller had signed the “2023 Foreign Limited Partnership Annual Report” of PLV filed with the State of Florida. [See attached Exhibit 8]

This suggested to me that Mr. Geller, the President and CEO of MVW, who is also a senior executive for the general partner of PLV, may have directed the hiring the Foley & Lardner law firm because of MVW’s ongoing client relationship with the law firm and because Mr. Guthrie, who prepared the Master Declaration, is the managing partner of the Orlando office of the law firm. This would have ignored the obligation to serve the Association’s interests at all times for the benefit of PLV.

Moreover, with Mr. Guthrie and Mr. Vanos being attorneys, it is quite likely that when they are questioned at their depositions by Plaintiffs attorney’s they will respond that their answers are “work product” or “attorney-client privileged” information. Consequently, their responses to questions will be very short and not helpful to the Association in the present litigation. If the firm was not involved in the current litigation, the attorney’s could respond more fully and more directly to the issues raised in their depositions.

I believe that the Association’s attorneys are at a severe disadvantage because the Foley & Lardner law firm has inappropriately taken the role of representing PLV in this litigation when they should have declined to do so because of the firm’s relationship with MVW and in view of MVW’s fiduciary and contractual relationship with the Association.

Defendant Pelican Landing Timeshare Ventures filed its Fact Witness List with the Court on January 22, 2024, and it did not list any individuals.

No information is publicly available as to who will be the “Expert Witnesses” in this litigation.

Therefore, I respectfully ask Your Honor to sua sponte determine whether the Foley & Lardner law firm should be disqualified from representing Defendant PLV in the present litigation in view of the foregoing information."

 

[wendyleighj]

I submitted the below letter to the court to see if the judge will investigate whether the Defendant's law firm, Foley & Lardner, has complied with Florida's ethics rules for attorneys because the firm is representing PLV, the named defendant, which is a subsidiary of MVW, and John Geller, the President and CEO of MVW (appointed January 1, 2023 - right before all this started), is also a senior executive in PLV. Hyatt Vacations is a "business unit" of MVW and Hyatt Vacations in the Management Company for the Association. So, in the end, the Defendant's law firm is representing a company (PLV) owned by MVW and ignoring MVW's contractual fiduciary obligation to the Association to "serve the Association's interests at all times." Hopefully, the judge will disqualify the Foley & Lardner law firm from representing PLV in the litigation.


"I previously submitted a letter to Your Honor dated September 29, 2023 which was entered into the Court’s Records on October 4, 2023 regarding the Defendants’ Motion to Dismiss, which motion Your Honor denied.

My wife and I have been the “Owners” of four (4) weeks of timeshares at the Hyatt Coconut Plantation since 2004. Consequently, I have been following this litigation as much as possible using public information to ensure that our ownership interests are protected.

I respectfully request Your Honor to sua sponte determine whether the Defendant’s law firm, Foley & Lardner, is in compliance with the Ethics Rules imposed on Florida Bar members regarding the firm’s representation of Defendant Pelican Landing Timeshare Ventures (“PLV”) or if the law firm should be disqualified from representing Defendant PLV for the reasons set forth hereinbelow.

The Master Declaration of Covenants, Conditions and Restrictions of the Coconut Plantation Condominium Association (“Master Declaration”) prohibits “Owners” from acting regarding the provisions of the Master Declaration, which the present litigation concerns. Thus, I am unable to protect my interests in this litigation. See, for example, page 2 of the Master Declaration’s definition of “Association” which says, “. . . The Association shall be the only representative authorized to act on behalf of a member or members of such Association, including any Owners, with respect to the provisions of this Master Declaration. . . .” The Master Declaration is attached to the Complaint filed by the Plaintiff Association.

On January 10, 2024 Defendant Kersey Smoot disclosed in its filing with the Court its Fact Witness List, which included William C. Guthrie, Esq. and William Vanos, Esq. The Master Declaration says on its first page that “This instrument was prepared by and return to: William C. Guthrie, Esq., Baker & Hostetler, LLP, 200 S. Orange Avenue, Orlando, FL 32802, 407-649-6497.” I believe that the Master Declaration was prepared for PLV, the Defendant in the present litigation.

I did a “Google” search for William C. Guthrie and found that Mr. Guthrie is no longer with the Baker & Hostetler law firm. I found that Mr. Guthrie is now the “managing partner of Foley & Lardner LLP’s Orlando Office and co-chair of the Hospitality & Leisure Industry Team.” His “Representative Experience” discloses that Mr. Guthrie has Marriott Vacations Worldwide Corporation (“MVW”) as an important client in that he has done significant work on MVW’s behalf. [See attached Exhibit 1, Foley and Lardner’s website description of Mr. Guthrie.] Thus, Mr. Guthrie is the managing partner of the law firm representing Defendant PLV and Mr. Guthrie also represents MVW in legal matters.

After learning that Mr. Guthrie was with the Foley & Lardner firm and that he had done significant work for MVW, I asked an Association Board Member to provide me with a copy of the Association’s “Management Contract” to find out if MVW was the Management Company responsible for managing the resort property since its acquisition of Hyatt’s interest about five (5) years prior.

Mr. Rey Martinez, Area General Manager, Hyatt Vacation Club, provided me with a copy of the “Management Contract” between Coconut Plantation Condominium Association and Hyatt Vacation Management Corporation. I believe that MVW assumed responsibility for this Agreement with its purchase of the Hyatt resort and that the Hyatt Vacation Club is “a business unit” if MVW. [See attached Exhibit 2, a partial MVW web site description of Ms. Stephanie Butera as Executive Vice President and Chief Operating Officer of Hyatt Vacation Ownership stating that “Hyatt Vacation Ownership (HVO), is a business unit of MVW.”]

The Management Contract [See attached Exhibit 3] provides in paragraph 7 – Fiduciary Duty that, “The Management Company [i.e., MVW] shall act in a fiduciary capacity with respect to the proper protection of and the accounting for the Association’s assets. In this capacity, the Management Company shall deal at arm’s length with all third parties and shall serve the Association’s interests at all times . . .” (Emphasis added). Paragraph 8 provides that “The Management Company [i.e., Hyatt Vacation Management Corporation] may assign this contract, without the consent of the Association, to . . . (b) to any assignee who also acquires all, or substantially all, of the assets of Management Company, . . .”

I believe that MVW properly acquired the assets and assumed responsibility for the Management Contract, including the responsibility to serve the Association’s best interests at all times. However, this raised the question to me of whether MVW was complying with its fiduciary obligation to “serve the Association’s interests at all times” in that MVW has allowed its subsidiary PLV to employ the Foley & Lardner law firm to defend it in the present litigation.

This fiduciary obligation became more important when I learned that MVW was involved in meetings with the Association for the preparation of the Association’s annual budget. I believe that such meetings and other communications would have included confidential information concerning the operation and finances of the Association as required by paragraph 6.d. Annual Budget provision of the Management Contract. In an email sent to Association Owners on January 4, 2024 the Board said that it had “put in countless hours in an effort to hold the management company, MVW, accountable for a multitude of issues concerning the operation and finances of Coconut Cove” [the resort property name was recently changed from Coconut Plantation to Coconut Cove]. The present litigation revolves around operational and financial matters of the Association and, therefore, I became more concerned that MVW may be disclosing Association confidential financial and operational information to the Foley & Lardner law firm which would benefit Defendant PLV.

I understand that the Association is considering not renewing the Management Contract with MVW when it expires in August 2024. This may be because MVW has breached its fiduciary obligations to the Association under the Management Contract and, in addition, provides the possibility of future litigation with MVW and Foley & Lardner because of any such breach.

As a result of my increased concern, I Googled Kevin A. Reck, who is the “first chair” partner representing Defendant PLV. The Foley & Lardner web site discloses that Mr. Reck “currently serves as chair of the firm’s Orlando Litigation Department” [See attached Exhibit 5]. I believe that Mr. Reck must be having extensive communications with managing partner Mr. Guthrie, who drafted the Master Declaration involved in this litigation, and these two individuals may have have obtained detailed confidential information from MVW individuals involved in MVW’s meetings with the Association for preparing the Association’s Annual Budget.

I next Googled William Vanos, who Kersey Smoot also identified as a Fact Witness in its filing with the Court. I found in the Florida Bar Association’s web site that Mr. Vanos is employed by MVW [Florida Bar association profile] and that he is a Senior Vice President and Associate General Counsel at MVW [per LinkedIn web site] [ See both attached as Exhibit 6]. This concerns me as well because it indicates that Kersey Smoot, which purchased the property from PLV, knows that MVW, via MVW’s Associate General Counsel, has relevant information regarding PLV – and MVW is not a Defendant in the present litigation. Why isn’t Kersey Smoot instead relying on information within the knowledge of PLV? One can only conclude that there are ongoing conversations between and among representatives of PLV, the Foley & Lardner law firm and MVW.

In order to further try to understand what appeared to be taking place, I Googled John E. Geller, who signed both the Notice of Deletion and the Notice of Buildout in his capacity of Executive Vice President, HTS-Coconut Point, Inc., the General Partner of PLV [both documents are attached to the Complaint filed by the Association]. The Google result that I obtained has me even more concerned because Mr. Geller is a link to the defendant PLV and MVW. Mr. Geller is not only the Executive Vice President of HTS-Coconut Point, Inc. - - he is also the President and Chief Executive Officer of MVW appointed in January 2021. [See attached Exhibit 7.]

To determine whether Mr. Geller had relinquished his Executive Vice President position with HTS-Coconut Point, the general partner for PLV, in January 2021 because of his promotion within MVW, I Googled the Florida business records. There I found that Mr. Geller on April 22, 2023, only a few days before the relevant documents involved in the present litigation were filed with Lee County, Mr. Geller had signed the “2023 Foreign Limited Partnership Annual Report” of PLV filed with the State of Florida. [See attached Exhibit 8]

This suggested to me that Mr. Geller, the President and CEO of MVW, who is also a senior executive for the general partner of PLV, may have directed the hiring the Foley & Lardner law firm because of MVW’s ongoing client relationship with the law firm and because Mr. Guthrie, who prepared the Master Declaration, is the managing partner of the Orlando office of the law firm. This would have ignored the obligation to serve the Association’s interests at all times for the benefit of PLV.

Moreover, with Mr. Guthrie and Mr. Vanos being attorneys, it is quite likely that when they are questioned at their depositions by Plaintiffs attorney’s they will respond that their answers are “work product” or “attorney-client privileged” information. Consequently, their responses to questions will be very short and not helpful to the Association in the present litigation. If the firm was not involved in the current litigation, the attorney’s could respond more fully and more directly to the issues raised in their depositions.

I believe that the Association’s attorneys are at a severe disadvantage because the Foley & Lardner law firm has inappropriately taken the role of representing PLV in this litigation when they should have declined to do so because of the firm’s relationship with MVW and in view of MVW’s fiduciary and contractual relationship with the Association.

Defendant Pelican Landing Timeshare Ventures filed its Fact Witness List with the Court on January 22, 2024, and it did not list any individuals.

No information is publicly available as to who will be the “Expert Witnesses” in this litigation.

Therefore, I respectfully ask Your Honor to sua sponte determine whether the Foley & Lardner law firm should be disqualified from representing Defendant PLV in the present litigation in view of the foregoing information."

Excellent "Correspondence" supplied by you to the judge on 2/5/24.