Derivative Action Lawsuit Against Bella Collina POA, DENNIS KELLEHER, PAUL LEBRAUX, JEREMY SPRY, DCS REAL ESTATE INVESTMENTS, DWIGHT C. SCHAR, SPENCER SCHAR and RANDALL GREENE
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ANNA JURAVIN, DON K, JURAVIN,
Derivatively on behalf of
BELLA COLLINA PROPERTY OWNERS
ASSOCIATION, INC., a Florida not for profit
Plaintiffs, Case No.: 352020CA001963
DENNIS KELLEHER, PAUL LEBRAUX,
JEREMY SPRY, DCS REAL ESTATE
INVESTMENTS, LLC, a Florida limited liability
company, DWIGHT C. SCHAR, SPENCER SCHAR
and RANDALL GREENE.
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiffs, ANNA JURAVIN and DON K. JURAVIN, derivatively, on behalf of BELLA COLLINA PROPERTY OWNERS’ ASSOCIATION, by and through the undersigned counsel. and sues Defendants listed above, stating as follows;
PARTIES, JURISDICTION AND VENUE
This is a business dispute for damages in excess of $75,000.00, exclusive of interest, costs and attorney’s fees, and is therefore within the jurisdiction of this Court.
Plaintiff ANNA JURAVIN (“Mrs. Juravin”) is a citizen of the state of Eton da who resides in Lake County, Florida.
Plaintiff DON K. JURAVIN (“Mr. Juravin”) is a citizen of the state of Florida, who resides
in Lake County, Florida.
4. BELLA COLLINA PROPERTY OWNERS’ ASSOCIATION, a Florida not for profit corporation (“BCPOA”), is a Florida corporation authorized to conduct business in the state of Florida, with its principal place of business located in Lake County, Florida.
5. The Juravins reside at the Bella Collina Community.
6. The Community is managed and maintained by BCPOA who manages the property in the best interest of its Members, the Residents.
7. The Juravins are members of BCPOA and are authorized to bring this derivative action subject to Chapter 718 and Chapter 617, Florida Statutes.
8. Defendants Paul Lebraux, Jeremy Spry and Dennis Kelleher are the individual officers of BELLA COLLINA PROPERTY OWNERS’ ASSOCIATION.
9. Defendant Dwight C. Schar (hereinafter "Schar") resides at Ocean Blvd., South Palm Beach, Florida, and at all relevant times, funded and commanded the efforts of the Defendants. He is the de facto manager and Director of the BELLA COLLINA PROPERTY OWNERS’ ASSOCIATION.
10. Defendant SPENCER SCFIAR is the Property Manager at the Bella Collina community and is a citizen of the state of Florida who resides in Lake County, Florida.
11. Defendant RANDALL GREENE (“GREENE”) is a citizen of the state of Florida who resides in Lake County, Florida.
12. Defendant GREENE has a minority ownership interest in DCS, has worked extensively with DCS in the past, and was the DCS-appointed President of BCPOA.
13. DCS REAL ES1AIE IN VLSI MEN IS, LLC, a Florida limited liability company (“DCS”) is a Florida limited liability company authorized to conduct business in the state of Florida,
with Its principal place of business located in Palm Beach County, Plorida. Defendant DCS operates the golf and country club located in the Bella Collina subdivision.
14. Defendant DCS REAL ESTATE INVESTMENTS, EEC controls the majority of the units in Bella Colima and therefore affects policies and actions of BELLA COLLINA PROPERTY OWNERS’ ASSOCIATION
15. Section 720.307(l)(a) of the Act required the developer to turn over control of the property owners' association to the non developer owners no later than three (3) months alter ninety percent (90%) of the lots were sold. The date that triggered this obligation was August 29, 2005.
16. At all times relevant to this Complaint, DCS has held, and continues to hold, a de facto control over the subdivision in various ways including, but not limited to, acquiring the vast majority of lots in Bella Collina, illegally controlling the subdivision’s property owners' association, controlling the community's country club, and by “managing" the subdivision’s common areas.
DEMAND FOR ACTION BY DEFENDANTS WOULD BE FUTILE
17. Plamtitt repeatedly attempted to address the management issues by contacting the Property Manager, the BCPOA and its officers.
18. Plaintiff was subsequently advised not to contact the Bella Collina management and that their requests would be disregarded.
19. As recently as July 2020, the Juravins submitted requests for a political rally and two political signs. Some of these requests were ignored, while some were denied after pending for weeks.
20. Based on the history of hostile relations between Defendants and Plaintiffs, any for action
demand would be futile.
21. All conditions precedent to the commencement and maintenance of this action have been performed, have occurred, or been waived.
HISTORY OF CONFLICT BETWEEN JURAVIN AND BELLA COLLINA
22. The Juravins moved to the community at the end of 2015. They chose Bella Collina because they were looking for a safe, friendly, upscale community to raise their daughters.
23. Juravm first complained about issues in Bella Colima in 2016, but the same problems continue until today.
24. Don Juravin also met with the manager in order to resolve the excess of ten issues they complained about.
25. Moving into Bella Collina required a significant investment for Juravins.
26. Juravins realized that Bella Collina had accurately been labeled a"ghost town" with most units vacant.
27. The 2015 presentations by BELLA COLLINA and by the realtor were not truthfully reflecting the quality of living at BELLA COLLINA and the value of the investment.
28. 1he Juravins realized that Bella Collina struggled with providing basic services to residents and enforcing their own rules and regulations involving maintenance and cleanliness.
29. The Juravins also realized residents have little to no influence on the affairs of BELLA COLLINA.
30. In fact, despite signing off on them as “received”, the Juravins are yet to receive their copies of contracts, bylaws, covenants and rules from the associations.
31. During that time, the Juravins complained that the pool was not maintained and dirty.
32. During that time, the Juravms complained to the Manager that the gate and the property were not properly lit.
33. Since 2016, the Juravins complained that the residents leave their trash bins outside of the property for five to seven days a week, giving an overall appearance of poor upkeep.
34. Since 2016, the Juravins have also complained about visible exposed dumpsters.
35. Since 2016, the Juravins have complained about cars parked without restrictions or enforcement.
36. On at least one occasion, the Juravins attempted to contact the property security on a Friday evening, due to a safety issue and were told no security staff was available and to contact them again Monday morning.
37. For six months, they tried to resolve the issues internally, going through the Property Owners’ Association channels.
38. Ihe Juravins were looking to get involved as a way to protect their investment and standard of living.
39. About that time, the Juravins realized the complex history of the Property which included allegations of crimes that were not disclosed to them.
40. Had this information been disclosed previously, the Juravins would not have invested in Bella Collina.
41. Around that time, the Juravins also discovered that Bella Colima is controlled by the developer, Dwight Schar.
42. After that period Don Juravin placed a critical review online.
43. After that review, the Juravins started to receive threats from Randal Greene, head of the POA.
44. Although the conflict between the Plaintiffs and the Defendants started in 2016, it continues today, and has escalated through threats, intimidation, legal actions, injunctions and acts of vandalism.
45. Randal Greene ordered that the Juravins be denied basic community services for over three years while continuing to charge them fees.
46. The Juravins are not alone in their criticism of Bella Collina. Other residents joined together in a class action accusing the management of similar actions to what Mrs. Juravin has experienced with her family: illegally blocking her from entering the community. illegally blocking the local school bus from picking up her kids, and, using fear tactics and intimidation, such as sending her a mug with a note saying “We know where you live.”
47. About five hundred resident families decided to not pay any further fees and abandon their lots altogether, as a result losing about 500 million dollars in investment
48. The Juravins believe the families did so because of the severe management and maintenance problems at Bella Collina and the quality of living.
49. The Juravins were threatened with having their water service disconnected.
50. BCPOA placed cameras on the Juravin property, without informing them of the location. 51. The Juravins filed for an injunction against Randall Greene.
52. In the months following the publishing of the critical review, Juravin’s yard was vandalized, five tires on their cars were damaged and had to be replaced, Anna Juravin’s car was keyed all around, the pool cord was cut and the pool was drained.
53. BCPOA also continued to selectively enforce provisions of the CC«&R, such as for the alleged condition of the Juravins’ lawn and trees.
54. BCPOA have continued to single out the Juravins for selective enforcement.
55. Upon Plaintiffs’ information and belief, BCPOA did not take similar actions against units owned by DCS or Paul Simonson.
56. These units were in worse condition than that of the Juravins.
57. As Members of the Association, in June of 2020, the Juravins requested access to BCPOA records.
58. According to Florida Statutes Section 720.303 Subs. 5(a) and (b), the Bella Collina Homeowners’ Association Board of Directors was required to comply with Mrs. Juravin’s request for access (Mailed June 4, 2020) for corporate documents.
59. BCPOA represented they provided all documents in their possession.
60. However, financial statements. Board and Member meeting minutes were not provided.
61. Plaintiffs created a video record of their review and copying process.
62. This recording documents what documents were made available to Plantitfs.
63. Plaintiffs believe that these documents do not exist.
64. BCPOA therefore violated the record keeping requirements provisions of the Florida Statutes that apply to all Homeowners Associations.
65. On November 3, 2020, Richard Arrighi, former business associate of Randall Greene and Dwight Schar in the DCS venture provided a sworn affidavit to Plaintiffs (a copy of which IS attached hereto as “Exhibit B”).
66. His Statement, based on personal knowledge stemming from sharing the office with Greene for about five years affirms in part that Dwight Schar either made all the decisions regarding DCS projects including Bella Colima himself, or was aware of all decisions made by Paul Simonson, BCHPA’s Board member.
67. Arrighi stated that Simonson updated Schar on all projects throughout the day by phone in his presence.
68. On November 20, 2020, Richard Arrighi provided a sworn affidavit to Don Juravin (a copy of which is attached hereto as “Exhibit C”.
69. The document outlines that Greene hired outside parties to write negative articles and blogs about Don Juravin in order to retaliate against Mr. Juravin. The affidavit's purpose was “to keep Dwight Schar, Paul Simonson and Randall Greene's identities private so Mr. Juravin and others would not know it was coming from Mr. Greene”.
70. Arrighi’s affidavits state that the BCPOA did not have the required Member and Board Meetings.
71. BCPOA makes decisions outside of normal procedures prescribed by the law for Florida non-profit organizations or Homeowner’s Association.
72. Arrighi stated that no decision in Bella Collina was made without the knowledge or support of Dwight Schar.
73. On or about November 8, 2020, Arrighi provided Plaintiffs with emails between Randall Greene, Paul Simonson and representatives of Dwight Schar’s for profit entity, Schar Holdings.
74. Emails from November 2018 show Greene gloating about the judgment regarding Juravin’s yard.
75. In March 2017, Greene sends an email titled “I have had it with this Ping Juravin”. 76. Also, in this exchange, the Defendants’ discuss that Greene has a“good contact in Israel,” Don Juravin’s country of birth.
77. The parties then muse that “Juravin is too much, we need to do something about it."
78. On November 18, 2018, Simonson on behalf of DCS, the developer, cautioned that We need to stop paying lawyers to deal with retribution cases, this is a business, not a personal vendetta.
79. The BCPOA, however, continued with what Simonson called “personal vendetta”, by pursuing legal action against the Juravins.
80. BCPOA continued to use nonprofit resources to pursue these “personal” goals.
81. This was followed by a campaign of threats and intimidation targeting Juravins.
82. BCPOA officers and developers continue to spend money without seeking approval from Members and make decisions without required meetings, holding votes and maintaining records.
83. Upon Plaintiffs’ information and belief, the legal actions were not authorized by a duly elected Board of Directors.
84. BCPOA also initiated and financed a number of legal actions against other residents in similar fashion.
85. One of these actions arbitrarily sought to refuse a resident BCPOA membership despite being locked in an obligation to pay CLUB dues.
86. On another occasion, BCPOA refused membership to a family with a special needs child, and its actions are presently subject to ongoing litigation.
87. These actions hurt the reputation of Bella Collina.
88. These actions result in legal actions, court costs and attorneys’ fees that BCPOA is using its resources to finance.
89. These actions contribute to the low interest in and as a result, low occupancy at Bella Collina.
90. These actions result in lowering the real estate prices.
91. These actions hurt BCPOA and the investments made by its Members.
92. Upon Plaintiff's information and belief, BCPOA was not holding elections.
93. Over the many years of the Association, dues or assessments were paid by the lot owners for maintenance items as well as reserves. On information and belief, those reserves and money are now being used by the present board for improper purposes and not for the betterment of the Bella Collina community. 94. All these actions harm the BCPOA and its Members.
COUNT I: BREACH OF FIDUCIARY DUTY
Plaintiffs reallege Paragraphs 1-94.
95. As officers and de facto Directors and Managers, Defendants held a position of confidence and trust within the Company and owed a fiduciary obligation to BCPOA and its Members, and was required to act in good faith and in the best interest of the Company.
96. By pursuing their own interests. Defendants have failed to act in BCPOA’s best interests.
97. Defendants caused BCPOA damages.
COUNT II ABUSE OF CONTROL
Plaintiffs reallege Paragraphs 1-94.
98. Defendants’ misconduct alleged herein constitutes a breach of their fiduciary duties because they abused their ability to control and influence BCPOA, for which they are legally responsible.
99. As a direct and proximate result of these defendants’ abuse of control BCPOA has sustained significant damages.
100. As a result of the misconduct alleged herein. Defendants are liable to the BCPOA.
COUNT III ABUSE OF PROCESS
Plaintiff realleges Paragraphs 1-93.
101. Defendants’ misconduct alleged herein constitutes a breach of their fiduciary duties because they abused the civil court process in filing suit against a member of the BCPOA, for which they are responsible, for the improper purpose of unlawfully intimidating the member and his family.
102. The BCPOA continued to require payment from the Juravins after prohibiting them from accessing the Club in 2017.
103. To date, the Juravins have not been permitted to access the Club even though the Juravins continued to pay the expenses for a year following the prohibition.
104. The Defendants maintain that the Juravins were not excluded from the Club for nonpayment.
105. The prohibition or exclusion has not been deemed an expulsion which would have permitted the Juravins to recover their $40,000 deposit.
106. The Defendants held the deposit and continued to bill the Juravins to force their silence and acceptance of the management of the community.
107. The use of legal proceedings was therefore improper.
108. These proceedings were initiated with an ulterior motive to silence and intimidate the Plaintiffs.
109. In addition. Defendants condition the BCPOA membership on approval for Membership by the Club at Bella Collina.
110. Defendants created a system where failure to obtain Membership prevents potential Residents from being able to commence construction on the lot.
111. The CC&Rs require residents to construct a dwelling on the lot within 18 months.
112. Failure to construct permits the Defendants to repurchase the lot at a price favorable to Defendants.
113. The management continues to use legal proceedings to exclude potential residents from becoming Members and being able to build on lots.
114. The approval and said ability is completely within the discretion of the BCPOA management.
115. The outcome by design is outside of potential Members’ control.
116. Actions of Defendants depress the ability of the BCPOA to grow and attract new Residents.
117. Actions of Defendants create controversy and expose BCPOA to litigation.
118. Paul Simonson, an individual of power and influence over the Club and over Defendant DCS owns an investment company that in turn owns a lot in Bella Collina. 119. The owners of the lot failed to construct on the lot within the allotted time.
120. The lot was not subjected to the same compulsion rule for failure to build. 121. Management failed to enforce CC&Rs because of Simonson’s role at DCS.
122. Individuals and companies related to Defendants continue to receive preferential treatment.
123. As a direct and proximate result of Defendants’ abuse of process and breaches of duty alleged herein, BCPOA has sustained significant damages.
124. As a result of the misconduct and breaches of duty alleged herein, Defendants are liable to the Company.
COUNT IV GROSS MISMANAGEMENT
Plaintiff realleges Paragraphs 1- 93
125. By their actions alleged herein, Defendants, either directly or through aiding and abetting, abandoned and abdicated their responsibilities and fiduciary duties with regard to prudently managing the assets and business of BCPOA consistent with the operations of a Florida not for profit Corporation.
126. As a direct and proximate result of Defendants’ gross mismanagement and breaches of duty alleged herein, BCPOA has sustained
127. As a result of the misconduct and breaches of duty alleged herein, Defendants are liable to the BCPOA.
COUNT V WASTE OF CORPORATE ASSETS
Plaintiff realleges Paragraphs 1-93
128. As a result of the improper conduct described herein, and by failing to properly consider the interests of the Company and its public shareholders and by refusing to conduct proper supervision. Defendants have caused and will continue to cause BCPOA to waste valuable corporate assets and incur substantial expenses to defend Defendants’ unlawful actions.
129. As aresult of the waste of corporate assets. Defendants are liable to the Company
COUNT VI CONSPIRACY
Plaintiffs incorporate paragraphs 1through 93 as though set forth fully herein.
130. Bella Collina is a discrete market for the sale and development of 801 lots.
131. DCS and the DCS related entities possess monopoly power in the market for the sale of lots in Bella Collina, owning or controlling 80% of all lots and homes.
132. The value of any lot was dependent on the operation of the POA and the actions of the developer.
133. The defendants conspired to illegally control the POA and enforce restrictive covenants which they knew to be invalid, illegal and unreasonable for the illegal purpose of destroying the value and economic viability of the lots and coercing lot owners to surrender them to DCS and the DCS entities.
134. The illegal mandatory golf club membership, illegal special assessment, illegal control of the POA, requirement that lot owners must pay for club memberships and assessments on lots, write-off of assessments on lots owned by the Conspirators, the merger of control of the boards of the BCPOA, the Golf Club, DCS, the DCS entities and the CDD, and exorbitant and unreasonable country club fees and dues constituted anti -competitive practices in the form of price discrimination, exclusive dealings, price control, anti-competitive merger. inter-locking directorates and tying.
135. This conspiracy to perform the acts described in the preceding paragraph, to monopolize this market and to restrain the development and resale of the lot owners' property violates the Sherman Antitrust Act, 15 U.S.C. and the Clayton Act §15 U.S.C. §12, et seq.
136. These violations caused the Plaintiffs, and all similarly situated current and former lot owners to suffer damages in the nature of diminished lot values and excessive carrying costs related to ownership and lack of marketability of their lots.
COUNT VII VIOLATIONS OF§542.15, FLORIDA STATUTES, ct seq.
137. Plaintiffs incorporate paragraphs 1through 93 as though set forth fully herein.
138. This conspiracy to perform the acts described in herein, to monopolize this market and to restrain the development and resale of the lot owners' property violates the Florida Antitrust Act of 1980.
139. These violations caused the Plaintiffs, and all similarly situated current and former lot owners to suffer damages in the nature of diminished lot values and excessive carrying costs related to ownership and lack of marketability of their lots.
WHEREFORE, the Petitioner respectfully requests that the Court:
Issue an Order requiring the BCPOA to disgorge all ill-gotten profits or proceeds it received as a result of the acts and/or courses of conduct complained of herein, with prejudgment interest.
II. Asset Freeze and Accounting
Issue an Order freezing the assets of the Maxfield Estate, until further Order of the Court, and requiring from Respondent a document sworn to before a notary public setting forth all assets (whether real or personal) and accounts (including, but not limited to, bank accounts, savings accounts, securities or brokerage accounts, and deposits of any kind) in which the BCPOA
(whether solely or jointly), directly or indirectly (including through a corporation, trust or partnership), either has an interest or over which it has the power or right to exercise control.
III. Appointment of Receiver
Issue an Order appointing a Receiver over the BCPOA, to marshal and safeguard all of said assets, to perform any other duties the Court deems appropriate, and to prepare a report to the Court and the Petitioner detailing the activities of the BCPOA, and the whereabouts of funds.
IV. Records Preservation
Issue an Order requiring Respondent to preserve any records related to the subject matter of this action that are in the BCPOA's custody, possession or control.
Enter judgment in its favor and against Defendants for all damages suffered by BCPOA, interest. costs and for such other relief as the Court deems just and proper.
VII. Further Relief
Grant such other and further relief as may be necessary and appropriate.
VIII. Retention of Jurisdiction
Further, the Petitioner respectfully requests the Court retain jurisdiction over this action in order to implement and carry out the terms of all orders and decrees that may hereby be entered, or to