Since the three members of the BOD, who now wish to drop the lawsuit, have met privately (one at a time) with the defendant who is representing himself, is it a valid argument to raise the issue of ex parte communication?
A: Ex parte communication is between a party and the judge -- not between parties. So, this is not a valid complaint.
If the three members of the BOD go against the majority of the members of the HOA and vote to drop the lawsuit what issues are raised, if any (ultra vires acts, breach of fiduciary relationship, etc.)?
A: None. The board is empowered to act in what the directors believe is in the HOA's best interests. The rule requires only that the board members act in good faith and based on well-informed business
judgment in making any decisions. If the board thinks that terminating the lawsuit will save money, then the board can do so.
What remedy, if any, would a member of the HOA have against the members of the BOD for their willful failure to continue the lawsuit and/or their failure to enforce the covenants of the HOA?
A: If the board fails to enforce the covenants, an HOA member could sue the directors for breach of loyalty to the HOA, to the extent of damages suffered by the individual member. Once again, the defense is good faith and well-informed business judgment -- and it pretty much boils down to the value of the uniformity in fence regulation vis-a-vis the cost of litigation. It's not an easy issue, because while one has a measurable financial component, the other would require an appraiser to consider the value of the member's home with and without the fence -- and, the value of the entire community with and without enforcement oft fence/aesthetic guidelines. This is not a case I would be jumping to try to represent, on either side -- it's too gray.
Hope this helps.
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