Subject: Response to Lawyer Shendell's Letter by Norman B.Arnoff Esq

From:-

Sent: Monday, December 21, 2015 3:04 PM

To: ;

Cc: ; ;

Subject: Response To Lawyer Shendell's Letter By Norman B.Arnoff Esq.

Dear Attorney Shendell,

I have received your letter dated December 18, 2015 and your demand for a retraction of the December 16, 2015 “PACC2 Concerned Owners Group Responses to the December 12, 2015 Board Letter”. You state in pertinent part:

” ….{P}ublication of these false statements to the members of Palm Aire 2 as you have done, subjects you, as the person who published the statements, to liability for defamation, including libel and slander….The purpose of this letter is todemandthat you issue a letter retracting the December 16, 2015 letter, specifically retracting statements regarding the undersigned …. {Tamar Shendell} and the Shendell & Associates, PA law firm. Your retraction letter must be mailed or sent by electronic mail no later than two business days from the date of this letter to all persons to whom you published the letter of December 16, 2015,”

Respectfully, you are proceeding pursuant to flawed assumptions and clear and manifest error. Accordingly, I will not dignify your letter and provide no more consideration to its content other than this electronic communication which your letter requests pertaining to the subject matter of the December 16 ,2015 Concerned Condo Owner Group responses to the December 12, 2015 Board letter.

Firstly, I did not publish the letter but do take responsibility as a lawyer and an Officer of the Court ( i.e. the latter term being used to denote every lawyer’s responsibility not merely to his clients but the legal system and the public interest) for reviewing with various members of the Concerned Condo Group that their letter fully met the ethical and legal standards of free discussion of matters relating to governance in a condo community. My name was listed with my full consent because it was assumed that readers might have some questions regarding the letter and related matters. I also agreed to consult with Jan Stanley and Tom Anthony as well as other concerned condo owners on the subject matter of your letter and the legal issues raised. The concerned condo owners, including the other two (2) addressees on your letter, are conscientious, did their due diligence, and were totally open with me in addressing the issues.

A review of your December 18, 2015 letter with the Concerned Condo Owner’s response to the Board’s December 13, 2015 letter shows only two (2) possible references to you and/or the Shendell law firm. The first reference stated: “…{There}were only two directors who fulfilled their fiduciary duty to rightfully oppose the improper election incident that occurred last March when the Association’s attorney interfered with and altered the ballot count, thus changing the election results… {and} {t}his deprived all owners of their fundamental voting rights and bypassed the due process of law that fairly governs our election procedures.” (Emphasis addedin bold)

There have been multiple sources who were present on the day of balloting that you, Tamar Shendell, consulted with the Board and the Management Company and as a result four (4) candidates were removed for alleged delinquencies in assessment payments and the votes for these candidates in consequence were never counted in the election process. In fact the purported delinquencies imputed to the disqualified candidates were not entirely correct. This self-help is directly contrary to the clear text of the Florida Condominium Statute. Chapter 718.112, (2), 4(c) provides: “ c. Any challenge to the election process must be commenced within 60 daysafterthe election results are announced” (Emphasis added)

If “interfere” in simple terms means “ to come in or between” and ”to hinder or prevent”, this is precisely what happened as the Board apparently relied on the bad advice from you and your firm in respect to the March election. Instead of addressing any arguable challenges after the election results were announced as Chapter 718 requires, you and the Board pre-empted the process and ignored the statute.

The other reference to your firm identified your and your firm’s conflict of interest in respect to legal fees. It is and was obvious that, if the current Board was voted out, new counsel would be substituted to represent the condo association. In that context, especially when a question is raised on an important legal issue, a written legal opinion should be provided. In view of the importance and sensitivity of the election issue to all condo owners, why was not a written legal opinion of another and independent lawyer obtained at a minimum to avoid misperception and to assure transparency and fairness?

If the answer is that this would add cost, the answer is that the cost is far less than the legal fees and costs the condo association is now incurring because of the breach of fiduciary duty of the Board (excluding the two dissenting directors) to all the condo owners participating in the election process and the failure of you and your law firm to recognize as an attorney to a corporate entity that you represent the entity as well as all the equity owners and not just the group then in control who pay or approve your fees.

Lastly, while this does not directly address the December 16,2015 response letter I have, based on the past experience of my wife (who resides in the condo that her parents acquired in the 1970’s and resided in until they passed) serious question with respect to the charging directly of legal fees for collecting ostensible assessment delinquencies. In view of the inadequacy of records not merely observed by the auditors in October 2014 but the Department of Business and Professional Regulation (“DBPR”) on July 22, 2015 that cited the Association for the inadequacy of its records, including those relating to assessment payments; the way the Board pulled the trigger was clearly wrong and left many of the voters unaware of what had been done and without a remedy.

What also came to my attention was that if there was an ostensible late payment, the management company would not accept the payment and the condo owner was told the account was in collection and funds were directed to go to your firm so that attorney fees and late fees could be paid to your firm directly by the condo owner. The condo owners as non- clients should not have been billed by your firm, especially since they would not be allowed to take their accounts out of collection until your firm’s attorney fees were paid.

None of these charges were ever reviewed and approved by the Board. Moreover at times delinquencies were pre-textual, even when checks were tendered with the notation “without prejudice” to the Association’s rights to collect further charges. Moreover, you and Larry Shendell rejected payments from my wife on such specious grounds that the “without prejudice” and the date of the invoices paid notations in the memo portion of the check were “restrictive endorsements”. This was and is gross error and did not even have a colorable legal basis.

Recommendations

There were a number of questions raised in the letter as to the financial and corporate governance integrity of how the condo association is presently being conducted and I highly recommend that the current Board with your and your law firm’s guidance, honestly and directly respond to the queries in writing and circulate them instead of threatening those who disagree with the current board with nonsense lawsuits.

It is further my recommendation and I speak for my wife as a client-condo owner and my own sense of professional responsibility, that there be an agreement to have the DBPR or other appropriate state agencies cause the appointment of a qualified and independent ombudsman to monitor the March 2016 election to assure a fair and honest process fully in accord with the law.

In anticipation of the election and true respect to the right to vote of all condo owners to make informed judgments in respect to their votes, questions relating to financial management need to be fully discussed and addressed including whether the prior year’s auditors discussed with the current auditors the reasons for the disclaimer of the audit opinion October 15, 2014 by the auditors for that fiscal period. There is a question that should be answered. Why have the financial statements of the association for 2014 not been made public to all condo owners?

Lastly the SLAPP lawsuit against directors Peter Kretz and Joseph O’Neil for their opposition to the Board, well within their free expression rights protected by Chapter 718 as well as the First Amendment, should be dismissed with prejudice so that no further and unnecessary expense will be incurred and the upcoming and hopefully the coming election process will resolve the major issues for all the condo owners in a non-divisive and democratic way.

I am amenable to an open meeting where the legal and accounting issues will be addressed provided fair opportunity is provided to all. With the suspension of litigation with the exception of those cases where there is a jurisdictional time limit, the lawsuits should be dismissed or suspended and constructive discussion participated in by all the condo owners should take place. I certainly would welcome the opportunity to participate in such a meeting. Justice Oliver Wendell Holmes once said ”The best test of truth is its free competition in the marketplace” and Justice Louis Brandies once said that” sunlight is the best disinfectant.” The Board, the lawyers, and concerned condo owners will be better served with such a democratic conversation.

If you choose not to follow a constructive approach, understand that should a lawsuit be brought; I believe you and your firm as well as the named plaintiffs will not only incur more legal fees and costs but monetary sanctions for a frivolous lawsuit not grounded in fact or colorable in law.

I hope you, your partner Larry Shendell, and the Board will give the foregoing careful consideration, especially with respect to the significant and negative consequences that will attach both to the lawyer and/or client; that bring frivolous litigation. Thank you for your anticipated courtesy and cooperation.

Respectfully,

Norman B..Arnoff