Last update: 2008 Sep 21. Click History for a list of changes and updates.
___The continuation of this post is an email to MOA Members concerning the dismissal of the Nordeen v MOA Lawsuit. Included is a discussion of the rule of law and democratic issues involved with governance of owners associations.
___The court order not only dismissed the lawsuit, but also created the possibility of significant personal liability if I proceeded with an appeal. The Opinion and Order creates a number of claims of reversible error including a major one of using an incorrect Standard of Review upon which the Opinion and Order is based. Had I won the lottery in August, I would have appealed the Court's decision in a heartbeat.
___Your comments are invited and are welcome. Thanks. I am available for discussion and to answer any questions.
Don Nordeen
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- Key Words:xx• Attorney Issues, • Governing Documents (General), • MOA Board of Directors, • MOA Governance, • MOA Members & Members' Rights, • Nordeen v Michaywé Owners Association, attorney, board of directors, breach of fiduciary duty, business judgment rule, bylaws, CC&Rs, Covenants Conditions and Restrictions, Declaration of Master Covenants, Conditions and Restrictions, dues, duties, duty of care, duty of loyalty, duty of obedience, duty to act, duty, fiduciary duties, fiduciary duty, fiduciary, governance, governing documents, governing, law, laws, lawsuit, members' rights, POA Board of Directors issues, POA governance, POA members' rights, restrictive covenant
Dismissal of Nordeen v MOA Lawsuit (continued)
____ From:_ Don Nordeen
_____Date:_ 2008 September 19 10:28:06 EST
______ To:_ MOA Members
__ Subject:_ Dismissal of Nordeen v MOA Lawsuit
Dear MOA Members,
Re: Dismissal of Nordeen v MOA Lawsuit
___This subject is on the agenda for the Town Hall Meeting on September 20. This email presents my views on the lawsuit and its underlying related subjects, which are likely different from what will be presented at the Meeting.
___As you probably know, the court dismissed the lawsuit in an Opinion and Order dated 2008 August 22 by the Honorable Dennis F. Murphy. Moreover, the Order created the possibility of significant personal financial risk in taking any further action. Accordingly, I have let the time run on any further action.
___The lawsuit was a matter of principle for me. I am offended by the actions of the board and the association in which I am a member that do not appear to be in conformance with the law, governing documents and members’ motions — the rule of law for an owners association. The obedience to the rule of law is a matter of trust, and establishes stability and predictability for members. I know that others have stated other characterizations for my reasons for filing a lawsuit, but how would they know? They never asked.
___My interest has been and continues to be the use of democratic principles in the governance of MOA, beginning with the rule of law. I believe that members, who pay the bill, should vote on primary matters of MOA based on being provided full and accurate information so they can make an informed vote. Ultimately, the members do control because they must approve any increase in funding. Rather than an irregular timing of a vote on increased funding (dues increase), it would be better in my view for members to annually approve the operating plan and its associated funding.
___To me, the dismissal of the lawsuit is even more disappointing because the Opinion and Order used an incorrect Standard of Review. The Court used a Standard of Review for a (C)(10) Motion for Summary Disposition (No Genuine Issue as to Any Material Fact Exists). The motion before the Court was a (C)(8) Motion for Summary Disposition (Failure to State a Claim upon Which Relief Can Be Granted ). The Standards of Review for the two different Motions for Summary Disposition are quite different.
___The use of the wrong Standard of Review can be easily verified by the board since there are two attorneys on the board. For those interested in further explanation, please read the Appendix. The above is not an excuse, just a statement of fact. I believe the outcome would have been different had the Court used to correct Standard of Review, which my brief provided.
___Unfortunately, the result is that nothing is decided. The Opinion is 18+ pages, but based on the wrong Standard of Review, and therefore provides no guidance. The Court was only required to review the sufficiency of the Complaint, not to decide the issues.
___So, the issues in the lawsuit remain. I have posted the board’s view (yellow paper in the 2008Q2 Business Review) and my view on my password-protected weblog at “Document from MOA Board Re Nordeen v MOA”. It is also posted at “Document from MOA Board Re Nordeen v MOA”. All of these issues could be resolved, and should have been resolved in my view, by the board with a serious attempt to understand the issues and the actions taken by prior boards.
___While I certainly didn't expect the court to use the wrong Standard of Review, any lawsuit is a “roll of the dice”. If all goes well, the issues are decided based on the facts and the law. But there are no guarantees. I would rather have tried and not succeeded than not to have tried at all. The only guarantee is the result of not trying, and that is not in my makeup.
___I am available to answer any questions about the lawsuit and the 12 counts (issues) in the lawsuit. Obedience to the rule of law is a matter of trust.
Don Nordeen
(989) 939-8240
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Appendix
___A (C)(10) Motion examines facts. A (C)(8) Motion only requires claims with factual allegations. From a lay perspective, factual allegations are descriptions of subject matters intended to be proved and, if proved, would become facts. Because the Court used the Standard of Review for a (C)(10) Motion, the Opinion referred to the equivalent “not proved” 8 times. Such proofs are not required under the Standard of Review for a (C)(8) Motion.
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Standard of Review in the 2008 August 22 Opinion and Order at Page 3
The full Opinion and Order is available at the MOA website.
“Standard of Review
“Standard of Review
___A motion brought under MCR 2.116(C)(8) requires summary disposition where the opposing party has failed to state a claim upon which relief may be granted. A motion brought under (C)(8) is based solely upon the pleadings. MCR 2.116(G)(5). Additionally, as with any motion for summary disposition, the court must view the evidence in a light most favorable to the non-moving party, and must make all legitimate inferences in favor of the nonmoving party. Quinto v Cross & Peters, 451 Mich 358; 547 NW2d 314 (1996). Again, as with any motion for summary disposition, the court must view the evidence in a light most favorable to the non-moving party, and must make all legitimate inferences in favor of the nonmoving party. Quinto v Cross & Peters, 451 Mich 358; 547 NW2d 314 (1996)”
Memo: The case, Quinto v Cross & Peters, 451 Mich 358; 547 NW2d 314 (1996), concerns a MCR 2.116(C)(10) Motion for Summary Disposition, not a MCR 2.116(C)(8) Motion for Summary Disposition. It is one of the cases cited in the Michigan Circuit Court Benchbook at page 178 for a (C)(10) Motion.
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Excerpt from the Standard of Review in the Michigan Circuit Court Benchbook
Available at Michigan Circuit Court Benchbook, Chapter 3, page 177
Standard of Review
Standard of Review
___A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint. Dolan v Continental Airlines, 454 Mich 373, 380 (1997). All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. Wade v Dep’t of Corr, 439 Mich 158, 162-163 (1992). A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are “so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.” Id. at 163. A mere statement of a pleaders’ conclusions, unsupported by allegations of fact, will not suffice to state a cause of action. ETT Ambulance Service Corp v Rockford Ambulance, Inc, 204 Mich App 392, 395 (1994). When deciding a motion brought under this section, a court considers only the pleadings. MCR 2.116(G)(5). See also Maiden v Rozwood, 461 Mich 109, 119 (1999). [underline emphasis added]
Memos: __(1) Note that there is no reference to Quinto v Cross & Peters, 451 Mich 358; 547 NW2d 314 (1996), which is the case used in the Opinion and Order. __(2) There is nothing in the Standard of Review requiring proofs as required in the Opinion and Order __(3) The above Standard of Review was included in Plaintiff’s 2008 Jun 30 Brief. __(4) In its Opinion, the Court also went beyond the pleadings contrary to the Standard of Review.
- History:x
- 2008 Sep 19 — Initial Post
- 2008 Sep 21 — added paragraph to introduction
- Links:xxDismissal of Nordeen v MOA Lawsuit at [http://swagmanmwpoa.blogspot.com/2008/09/dismissal-of-nordeen-v-moa-lawsuit.html]
••• End of Post •••
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