Coconut Plantation vs MVW litigation

[cfabar1]

why did they agree to dismiss the lawsuit? what is in it for the owners?

 

[Winthelawsuit]

Is it worth pursuing a D&O lawsuit against the BOD and the individual members?

Please appreciate that I am not a member of the Florida Bar, only the D.C. Bar, so I can't give legal advice. So please take my comments as the thoughts and suggestions of an Owner/Member of the Coconut Plantation Condo Association.

I am planning to file a Grievance with the Grievance Committee for the 20th Circuit Court in Lee County against ALL of the lawyers involved in the litigation. Feel free to do so too. It would be great if everyone would file a Grievance. I plan to limit my focus to the lawyers because I believe they have clearly violated the Florida Bar Rules. I put myself in the situation of Defendant Kersey Smoot - - I bought the land so that London Bay can build on it. If the Grievance Committee finds that the lawyers violated Florida Bar Rules by not disclosing to the Court the true date of the conveyance of the property, Kersey Smoot should file suit and seek recission of their agreement with PLV. That suggestion can be found in Lisa Van Dien's affidavit attached below. Note that she did not refer to the Deed she prepared when the Deed would be affective; instead only saying that the Deed was recorded on April 25th. Anyway, I plan to follow this path of going after the lawyers for violating Florida Bar Rules. If the lawyers are determined to have violated the Rules, then I would consider filing a lawsuit against the lawyers and the Association.

I have already asked the Association's Board whether there is a Settlement Agreement. I was told that there is not so I guess that there is at most a "Memorandum of Understanding" that provides the highlights of what will be in the Settlement Agreement. God only knows why our Board would approve dismissal of the lawsuit before there was a Final Settlement Agreement - - what was the rush? My thought is with the upcoming election for the Board and with all except for Mr. Rudd running (who I believe would not have agreed to the dismissal based on his comments at the last Board meeting which I attended) I think part of the rush was to increase their likelihood of being reelected. If I'm right, the "Points" owners vote through their trustee and I would bet that those votes will all go to the current Board members now that the litigation has been settled - - probably in the defendant's favor. My guess is that the settlement will be only for about $8 million; a token increase over what was originally offered. I also think that the Board's lawyers were always telling the Board that given the amount of money involved, there will surely be an appeal, so no more money until many years later if we prevail or no money if we lose. Typical BS by lawyers who don't know what they're doing.

The lawyers should have said that we would get interest on the money and London Bay would not build on the property if they didn't have everything they would get from PLV - - which per Van Dien's affidavit that London Bay would not be the Declarant.

With respect to a new lawsuit, I think we need to be patient and wait to see the Settlement Agreement. The Board will probably say we are not entitled to it as being confidential but I plan to see if the Grievance Committee can get access to all of these things related to the Dismissal which will show what really happened.

I would appreciate other people's thoughts/opinions.

 

[Winthelawsuit]

To CFABAR1 - - Please see my above comments.

 

[Winthelawsuit]

I found an email in my records from the Board that the Association could have received $8 million over 7 years from MVW/PLV. The Board turned the offer down. Let's see how bad of a settlement they have negotiated for us - - plus I'm sure all parties will each pay their own legal fees.

 

[Marathoner]

Settlement is final and is $7.1M, paid in one lump sum payment by next month

 

[ocdb8r]

How many weeks exist at the resort (curious what that amounts to on a per week basis)? What's the annual budget of the resort?

I wonder how much this will defray the significant uptick in costs.

 

[Winthelawsuit]

Below is what I attempted to email to the members whose email addresses I found. Only about 500 and don't know if all went through. Plaese forward to anyone you know.


Dear Coconut Plantation Association Members:

I am running for the Board but this email is not seeking your vote. This email is to provide you with the truth about the Association’s litigation (most of which can be found on the Lee County Clerk of Court Record website plus at https://tugbbs.com/forums/threads/coconut-plantation-vs-mvw-litigation.356049/page-3).

If anyone has access to additional Members emails, it would be nice if you would forward this email to them.

You have probably seen the 10/17/24 email from the Board providing a litigation update regarding settlement of the lawsuit as negotiated by Board Directors Rick Lohr, Mike Greenaway and Jeanne McPhillips - - which email was prepared by Sanjay Kurian, the Association’s lawyer with the Becker & Poliakoff law firm.

The only substantive thing said by the Board in its email was that the Association will be paid $7.1 million in a lump sum – by November 12, 2024 (right before the Association’s November 11th Annual Meeting to elect the Board). The threesome failed to say that they turned down the original offer of $8.6 million over seven years.

They also failed to explain that no legal issues were raised that made them view their position as weaker now than it was when the lawsuit was filed. The threesome said in the email that by “. . . settlement at this stage we have avoided a time-consuming, costly trial along with appeals that were most likely to follow. It should also be understood that had it run its full course, there was still a chance of zero return without even covering our costs.”

They should have known that before filing the lawsuit. Plus, if we won, the Defendants would have had to pay all of our attorney’s fees and legal costs. Didn’t Mr. Kurian explain that to them at the outset?

What they didn’t say is that Mr. Kurian said in the Complaint that the property was conveyed to Kersey on April 25, 2024 when the deed was recorded. That is incorrect. It was conveyed to Kersey on or before April 24, 2024 when the deed was executed. But neither the Association or Mr. Kurian fixed that mistake despite being told that the Florida Supreme Court in 1926 ruled that that delivery of the deed is effective upon signing and that any delay until recording is irrelevant as long as there is an intention to convey the property when signing the deed.

In addition, the Notice of Deletion was not effective until recorded per the Master Declaration of our condominium. That means that the Declarant, Pelican Landing Timeshare Ventures, didn’t own the property as required when the Notice of Deletion was recorded and made effective. But none of these points were raised (nor many of the other points that should have been raised that I informed the Board about).

I won’t bore you with legal issues, so, what was the incentive for the threesome to settle the litigation? I believe that the reasons are set forth in the September 20, 2024 email from Rick Lohr to the Board (see attached two pages which constitute the email) and that their primary reason was to retain their seats on our Board per the section “Potential Future Board Makeup.”

I encourage you to let the Board know what you think of the settlement.

 

[ArizonaSun4Fun]

$8.6 million over seven years, or $7.1 million lump sum after a one year costly delay. I'm not sure the owners accomplished much, while our BOD went on a significantly questionable adventure without much, if ANY input from the owners of the resort. (I know the BOD are elected to work on our behalf, but pretty significant decisions without any direct input.)

This whole outcome is sad for a resort that averages a 96% occupancy rate (according to Rey, General Manager, at a recent owners meeting.) Our "thoughtful BOD" can safely invest the $7.1 million and use income to offset maintenace costs by about $300k per year. This still will result in a substantial increase in maintenance fees over the previously subsidized operating cost. Maybe the Board should use the money to build a six foot wall around the property to protect against storm surges from future hurricanes. (Somewhat joking.)

If the management of Marriott Vacations Worldwide would have been a little less greedy, they could have built one or two more buildings and had a financially sustainable property. They would have had many more portfolio points in their bucket to sell, and would have had excellent rental income in the interim. With the new Ritz Carlton residences, new marina, and new golf course, I would think the Coconut Cove property would be popular for a decade or two in the future.

 

[Winthelawsuit]

Below is an email that I sent to Rey this morning asking for a copy of a Notice that that the Developer was not going to add any subsequent phase of units to the property. Has anyone received a Notice that no subsequent phases were to be built?

"Hi Rey. The "Declaration of Condominium of Coconut Plantation, A Condominium" provides in Article XVIII - Phase Development at Paragraph 9 - Notice that "The Developer shall notify Owners of the decision not to add any subsequent phase. Notice shall be sent by regular mail addressed to each Owner at the Owner's last known address."

Would please provide me with a copy of the Notice that was sent to me as I have nothing in my records that I received such a notice. Was such Notice provided to all of the Owners at Coconut Plantation? Thanks."

 

[Winthelawsuit]

Do we really want these unethical people on our Board. Below are my latest emails with the Board asking for a copy of the Settlement Agreement. The Board will not provide members with the Settlement Agreement until November 5th - - presumably by regular mail so that the election of Board members will be completed and members will not have an opportunity to review the Settlement Agreement before the Annual Meeting. They aren't fooling me.

Fwd: Coconut Cove Update from Your Board Majority​

Oct 17, 2024, 1:19 AM (7 days ago)

October 15, 2024
Dear Unit Owners,
The purpose of this communication from your Board majority is to bring you, the Unit Owners, up to speed. We are pleased to announce that the litigation has concluded with a resolution under mediation relative to our lawsuit. In addition, regarding the recent storms, our damage has been tolerable. Please read the updates below.
· Litigation Update:
(Negotiating for the Board: Richard Lohr, Mike Greenaway, Jeanne McPhillips)
The Board is providing this update as to the conclusion of the Association’s litigation with Pelican Landing Timeshare Development and Kersey-Smoot. The parties mediated this case as required by the court. The mediation began on July 10, 2024, and negotiations took place over several weeks afterwards. The rules governing court order mediation in Florida make the discussions and back and forth between the parties confidential. This means that the Board is unable to provide the various positions communicated between parties or the back and forth that takes place in such settlement discussions. A positive in settling during mediation is that by settlement at this stage we have avoided a time-consuming, costly trial along with appeals that were most likely to follow. It should also be understood that had it run its full course, there was still a chance of zero return without even covering our costs.
The membership is entitled to know the results of the mediation and the contents of the settlement agreement. The settlement requires that the Association be paid the amount of $7.1 million by November 12, 2024. This is a lump sum payment with no payment terms, i.e. there is no step-down – it is a hard number as a cash settlement with no ongoing risk of non-payment.
The settlement must be viewed in light of the fact, as noted by Troy Asche in prior communications, that any offers or proposals prior to the deletion of the property now owned by Kersey-Smoot were off the table. The developer and Kersey-Smoot took the position in the lawsuit that no money or recourse was available to the Association. Their initial offer was a hard nothing.
The settlement agreement terms contain a confidentiality clause and a non-disparagement clause which binds the Association. The settlement agreement does contain a provision to allow communication of the settlement and its ultimate terms to the members of the Association. Any owner who would like a copy of the agreement may request one in writing by replying to this email on or before November 1st, 2024. Any owner who does this will have one sent to them no later than November 5th, 2024.
The settlement brings finality and certainty as to the claims by the Association. The Board Majority who participated in the mediation and negotiations believe that this result was as good as could be obtained.
In anticipation of the question, we wish to assure you that the ultimate legal fees and other expenses in reaching this settlement are anticipated to be less than $200,000.
· Hurricane Damage Update:
We are fortunate that Coconut Cove did not sustain anywhere near the level of damage we previously received from Hurricane Ian back in 2022. We had an average of a two foot storm surge, not nearly equal to the nine foot surge from Ian. The power was just restored as of Monday this week. Temporary generators were used for initial restoration work. Work has been completed to the point that a preliminary opening is planned for tomorrow (Wednesday).
The Resort team, led by Rey, did a great job at preparing the property for the storm and continued with a tremendous effort towards reopening. Some of the units experienced limited moisture from storm wind/rain. This is being remediated by a third party company. Items such as the guard house, thatched roofs, and other non-essential operating areas still require further investigation. General clean up and safety issues are under control. The beach will continue to remain closed as work to repair damage from both recent hurricanes will be on-going.
There is still a great deal of inspection and testing in progress at the Resort, and the Board will ensure a more comprehensive update goes out to the owners within the next 30 days, along with the projected cost to our Association.
Please trust that the Management Company as well as the Board are working together to ensure your home away from home is brought back to its original great condition.
Respectively Submitted for the Board Majority,
Richard T Lohr - President
--
Unsubscribe

Gary Loser <loser.gary@gmail.com>​	Oct 17, 2024, 4:47 AM (7 days ago)
to Gmail

Rick, please provide me with a copy of the settlement agreement.

Gary Loser <loser.gary@gmail.com>​	6:45 AM (5 hours ago)
to Mike, JEANNE, Lisa, Rick, Gmail

Rick: I would appreciate it if you would email me a copy of the Settlement Agreement now, or if that is not possible, please let me know who signed the Settlement Agreement. Thanks

Rick Lohr​	9:06 AM (2 hours ago)
to Lisa, me, JEANNE, Mike, Rick

Gary,
Rick is out of pocket at the moment, however he has instructed me to send out the agreement for all those that have requested it at the same time, which as stated in the letter will be 11/5/24.
Should you have any other questions relative to the details, as in the past, we would refer you to Sanjay, our attorney at Becker who jointly prepared the documents.
Best Wishes,
Amy

Gary Loser <loser.gary@gmail.com>​	11:42 AM (3 minutes ago)
to Rick, JEANNE, Mike, Lisa, Rick

The email sent by Rick says: "Any owner who would like a copy of the agreement may request one in writing by replying to this email on or before November 1st, 2024. Any owner who does this will have one sent to them no later than November 5th, 2024.
In view of what the Board's email says, I think Rick's instruction to you was in error, so please send me a copy of the Agreement now so that I can review it before the Annual Meeting, which I believe is why he has instructed you to delay sending the Agreement to the Membership.

 

[Winthelawsuit]

Do we really want these unethical people on our Board. Below are my latest emails with the Board asking for a copy of the Settlement Agreement. The Board will not provide members with the Settlement Agreement until November 5th - - presumably by regular mail so that the election of Board members will be completed and members will not have an opportunity to review the Settlement Agreement before the Annual Meeting. They aren't fooling me.

Fwd: Coconut Cove Update from Your Board Majority​

Oct 17, 2024, 1:19 AM (7 days ago)

Gary Loser <loser.gary@gmail.com>​	Oct 17, 2024, 4:47 AM (7 days ago)
to Gmail

Rick, please provide me with a copy of the settlement agreement.

Gary Loser <loser.gary@gmail.com>​	6:45 AM (5 hours ago)
to Mike, JEANNE, Lisa, Rick, Gmail

Rick: I would appreciate it if you would email me a copy of the Settlement Agreement now, or if that is not possible, please let me know who signed the Settlement Agreement. Thanks

Rick Lohr​	9:06 AM (2 hours ago)
to Lisa, me, JEANNE, Mike, Rick

Gary,
Rick is out of pocket at the moment, however he has instructed me to send out the agreement for all those that have requested it at the same time, which as stated in the letter will be 11/5/24.
Should you have any other questions relative to the details, as in the past, we would refer you to Sanjay, our attorney at Becker who jointly prepared the documents.
Best Wishes,
Amy

Gary Loser <loser.gary@gmail.com>​	11:42 AM (3 minutes ago)
to Rick, JEANNE, Mike, Lisa, Rick

The email sent by Rick says: "Any owner who would like a copy of the agreement may request one in writing by replying to this email on or before November 1st, 2024. Any owner who does this will have one sent to them no later than November 5th, 2024.
In view of what the Board's email says, I think Rick's instruction to you was in error, so please send me a copy of the Agreement now so that I can review it before the Annual Meeting, which I believe is why he has instructed you to delay sending the Agreement to the Membership.

And, of course, the voting for the Board ends on November 5th. The Board wants to make sure they are re-elected. Talk about a fixed election.