07-04-2020, 10:01 PM
(07-04-2020, 07:44 PM)eightfingers2.0 Wrote: Anyone go?I did. It was a joke. Here’s a letter sent to Larry K’s attorney.
MAGDALENA BAJON AMANDA L. DUTCHER CLARISSE M. KOBASHIGAWA TERRANCE M. REVERE
PAUL V.K. SMITH* MAUREEN S. WILLKOM** *Also licensed in Nevada **Also licensed in Wisconsin
VIA EMAIL pklawyer@aol.com
Paul K. Hamano PO Box 574 Hilo, HI 96721
TELEPHONE: (808) 791-9550 FACSIMILE: (808) 791-9551
REVERE & ASSOCIATES, LLLC
A LIMITED LIABILITY LAW COMPANY
PALI PALMS PLAZA, 970 NORTH KALAHEO AVENUE, SUITE A301 KAILUA, HAWAI I 96734
July 3, 2020
Re: Hawaiian Paradise Park Owners Association Illegal Special Meeting – July 3, 2020
Dear Attorney Hamano:
Having not heard from you regarding the email I sent yesterday, I wanted to follow up in another effort to communicate with you about Mr. Kawaauhau’s plan to hold a special meeting tonight. As you may know, Ms. Stillwell has also attempted to communicate with Mr. Kawaauhau directly, with no response. Our hope is that we can resolve this issue and prevent the HPPOA and the parties from getting involved with more litigation if your client proceeds with the illegal meeting.
As stated in my email yesterday, Mr. Kawaauhau is calling for an illegal special meeting of the HPPOA Board of Directors this evening. One of the items on the Agenda posted on the HPPOA website is to “Appoint Board of Directors”. Our clients, Ms. Stillwell and Ms. Blyth, did not receive notice of this special meeting, as required per Article VIII, Section 9 of the HPPOA Bylaws. Instead, the website and meeting notice misrepresent their seats (D5 and D7) as being vacant. Indeed, Mr. Crelly’s seat is also shown as vacant, which appears to be an admission that Mr. Crelly is and never was on the Board. The only seat that is not shown as being vacant is Mr. Kawaauhau’s seat.
You have made arguments throughout Plaintiff’s lawsuit that the Board cannot conduct business without a quorum, and you argued that there cannot be a quorum with only three directors. And it is and has always been Defendants’ position that a board of three can conduct business and
Paul K. Hamano July 3, 2020
Page 2
that Ms. Stillwell and Ms. Blyth, as a majority of the directors then in office (i.e., they had a quorum), acted lawfully and in good faith when they appointed directors to fill the seats after the mass resignation of directors last year. Despite the arguments made to the Court and the position taken by Plaintiff for the last year for why he was refusing to call any regular or board meetings whatsoever, now, he is taking the position that he can unilaterally hold a meeting an elect directors.
There are a number of reasons why Mr. Kawauuhau’s actions and attempt to hold a special meeting to appoint directors are unlawful and contrary to the HPPOA governing documents.
Mr. Kawaauhau, as well as the general manager controlling the HPPOA website, are misrepresenting to the membership that Ms. Stillwell’s and Ms. Blyth’s seats on the board are vacant. The Bylaws, at Article VIII, Section 6, state, “A director’s position becomes vacant upon death, resignation, removal, incapacity, or when the director ceases to be a lot owner or member in good standing. None of these situations is applicable. Therefore, Ms. Stillwell and Ms. Blyth continue to be directors until the next election. See HRS § 414B-(d) (“Despite the expiration of a director’s term, the director continues to serve until the director’s successor is elected, designated, or appointed and qualifies, or until there is a decrease in the number of directors.”).
The Board must hold an election to elect board members; Mr. Kawaauhau has no authority to unilaterally appoint directors and take away the membership’s right to vote for their directors. Article VIII, Section 5(a) of the Bylaws states: “(b) Each year the members in each voting district whose district’s term expires, or whose director’s position is vacant or is being filled by a board appointee, shall elect a new director by confidential mail-in ballot....” (emphasis added). Article VIII, Section 5(b) further states, “(b) The board shall advise the membership of the districts requiring elections and that applications are open for willing and qualified candidates from those districts to stand for election as per Article XII.” (Emphasis added). Article VIII, Section 3 states, in part, “Directors shall be nominated from each district and will be elected by members in that district only.” (Emphasis added).
Misrepresenting Stillwell’s and Ms. Blyth’s seats as vacant, in an obvious attempt to remove them from the Board, violates the Bylaws and Ms. Stillwell’s and Ms. Blyth’s rights as directors. Furthermore, if Mr. Kawaauhau attempts to appoint new directors to fill any of the directors seats, he is prohibiting the members of HPPOA not only from running for a board position but, moreover, from voting for their own representative. If Mr. Kawaauhau proceeds with the special meeting and attempts to appoint directors, he will clearly be in violation of the Bylaws and will have breached his fiduciary duties and obligation to act in good faith. Note that one of the stated purposes of the HPPOA, which Mr. Kawaauhau disregards, is to “(e) To foster an atmosphere of cooperation and harmony that encourages the participation of lot owners in the management and operation of the Association.” Bylaws, Art. VI(e).
In addition, Mr. Kawaauhau will not have a quorum at the special meeting and cannot conduct business as one director. The law is clear that the actions of one director are not the acts of the Board. See Bylaws, Art. VIII, Section 12 (“The acts of a majority of the directors present at any meeting at which a quorum is present shall be the acts of the board. Any action taken by
Paul K. Hamano July 3, 2020
Page 3
any board member(s) purporting to act on behalf of the board independently without the prior consent of the board shall not be considered an act of the board, and shall be strictly prohibited in accordance with HRS chapter 414D. Section § 414D-147 of the Hawai‘i revised statutes states, “Except as otherwise provided in this chapter, the articles, or the bylaws, a quorum of a board of directors consists of a majority of the directors in office immediately before a meeting begins. In no event may the articles or bylaws authorize a quorum of fewer than the greater of one-third of the number of directors in office or two directors.”
If Mr. Kawaauhau proceeds with the special meeting on his own, his actions will be directly contrary to the arguments that you and he have made to the Court, to the Defendants, and to the membership regarding why there were no meetings held for the past year and why the actions of Ms. Stillwell and Ms. Blyth were allegedly invalid.
We request, again, that you advise your client to cancel the special meeting. Moving forward with the meeting, attempting to conduct board business, and attempting to appoint directors will cause more legal problems for everyone involved. Please inform Mr. Kawaauhau that he is proceeding illegally and, in addition to exposing himself to personal liability, he will responsible for all fees and expenses incurred by the HPPOA and our clients.
Very truly yours,
/s/ Maureen S. Willkom Maureen S. Willkom
KP
“When your hate is louder than your love, your words have no meaning!”
“When your hate is louder than your love, your words have no meaning!”
