IN THE CIRCUIT COURT FOR THE COUNTY OF HENRICO
APRIL D. GALLOP
Plaintiff Case No. CL22002693-00
CAMERON BAY HOMEOWNER’S
ASSOCIATION, PATRICK PORTER,
TENLEY DAVENPORT, NICHOLAS WALLS,
SCOTT MEREDITH, PATRICIA BAKER,
DANA BRIGGS, ROBERT GEBHARDT
PLAINTIFF’S NOTICE OF OBJECTION TO ORDER/OBJECTION TO ORDER FOR THE RECORD
PLAINTIFF’S NOTICE OF OBJECTION TO ORDER FOR THE RECORD
Comes now the Plaintiff, by Pro-Se, to give Notice of this objection for the record to this Honorable Court and alleged Defendant’s Cameron Bay Homeowner’s Association (hereinafter sometimes referred to as Cameron Bay) from the order granted from the 28th April, 2023 hearing and received on or around 19th June 2023. I have seen, reviewed, and object the final order granted in part as follows;
- Misrepresentation of Law
The Plaintiff maintains that while Henrico County Circuit Court is one the permitted venues both the Henrico Court and the Defendant refuses to acknowledge that under V.A. Code § 13.1-861 “Any member or director aggrieved by an election of directors may, after reasonable notice to the corporation and each director whose election is contested, apply for relief to the circuit court in the county or city in which the principal office of the corporation is located, or, if none in the Commonwealth, in the county or city in which its registered office is located. The court shall proceed forthwith in a summary way to hear and decide the issues and thereupon to determine the persons elected or order a new election or grant such other relief as may be equitable. Pending decision, the court may require the production of any information and may by order restrain any person from exercising the powers of a director if such relief is equitable.”
Further, Section13.1-909(c) of the Code states, “Venue for a proceeding brought under this section lies in the city or county where the corporation’s principal office is or was last located, or, if none in the Commonwealth, where its registered office is or was last located.”
Therefore, the courts finding that the law only allows for the case be in the county where the principle office is located it invalid and inconsistent with state law.
- Misrepresentation of Facts by the Defendant
The Plaintiff contends that the Defendant attorneys have intentionally diverted and misinterpreted the purpose of the case and Virginia state law, specifically Va. Code 13.1-909. The Plaintiff did not file the dissolution of the corporation to have the Circuit Court reverse the reinstatement of the corporation. Under Virginia law 13.1-909, circuits do maintain the right to dissolve corporations that meet the criteria as set forth in the statute. Nothing in the law states that it must be terminated by the SCC (State Corporation Commission) to be dissolved, as the law provides for an involuntary dissolution of a corporation.
The Plaintiff contends that the Defendant’s opposition has the objective of diverting the court’s attention from the main purpose of her lawsuit, which was originally to review the elections in accordance with Virginia law and dissolve the corporation for the alleged violations mentioned in the original motion filed in the Richmond City Circuit Court. The burden of proof lies with the defendant to present admissible evidence demonstrating that they are the real party of interest, but they have failed to do so. Instead, the defendant has relied on unverified statements without any supporting business records. The absence of necessary evidence establishes grounds for the court to take action.
Furthermore, as was held in the case of Sheets v Castle 263 Va. 407 (Va. 2002), cases ought to be tried on merits. The party asserting the plea has the burden of proof. There was a clear failure by the Defendants to meet that burden and produce evidence to support their defense. The purported plea in bar was a general denial due to its failure to set out adequate facts before the court. It thus amounts to yet another dilatory action to prevent the ends of justice. Moreover, hiding the document and concealing evidence could be seen as obstructing the course of justice.
The plaintiff further asserts that the defendant’s opposition wrongly cites previous cases that are irrelevant to the present matter. These cases were related to debt collection and lacked subject matter jurisdiction to address the issues at hand. The Richmond Circuit Court erred in granting the transfer of venue to the Chesterfield Circuit Court, as it failed to consider the proper evidence to support the existence of a collateral attack. The chosen forum is entitled to a “presumption of correctness” that should not be easily defeated.
Additionally, the defendant failed to file any motion objecting to the venue within the required timeframe when the case originally started in Richmond Virgnia. This failure should have prevented the Richmond Circuit Court from transferring the case, as it had no legal right to do so. By neglecting to address their failure to adhere to the statutory time limit, the defendant’s opposition overlooks a crucial fact.
Furthermore, there are concerns about the defendant’s attorney filing pleadings on behalf of CBHA without evidence of proper authorization. The members of the corporation did not vote for any directors, and therefore, no authorized agents can act on behalf of CBHA. There is intentional deception, malice, and misconduct on the part of the defendant and its attorney before the court. The plaintiff suffered damages as a result of the attorney’s misrepresentation and concealment.
The alleged Defendant’s Attorney appear to have also misrepresented that the Cameron Bay Homeowner’s Association wasn’t did not have to fall under certain parts of the Non-stock Corporation law. The Articles of Inc and the Annual Report verifies that it is in fact a Virginia Non-stock Corporation. Further, no evidence or any record has been provided that any attorney can lawfully testify on behalf of the Cameron Bay Homeowners Association.
The state bar clarifies that attorneys must tell the truth even if they’re not under oath. Hence a lawyer who tells a half-truth in court or in court filings is considered to have told an outright lie. Moreover, under state attorney ethical standards, an attorney who withholds or conceals material facts or information from a judge also is guilty of lying according to the State Bar. “Acts of moral turpitude include concealment as well as affirmative misrepresentations. As was held in the case of Morrissey v Virgnia State Bar 248 Va. 334 (Va. 1994), an attorney has a duty not to practice deceit or misrepresentation is not confined to dealings with his clients; it also extends to others who may be adversely affected by such conduct.
Consequently, the alleged CBHA Attorney improperly appeared before the Court to seek monies by requesting sanctions. This is in violation of rules of professional conduct regarding fairness to opposing party, candor, and attorney’s duty to the Court regarding concealment. The Plaintiff has already suffered damages as a result of the Attorney’s misrepresentation and concealment. Notably, the Plaintiff had to be subjected to the Attorney’s dilatory tactics, which amount to an impediment to justice. All pleadings filed by the Plaintiff were done with merit and in accordance with the law, not with the intent to cause any delay or harm.
Moreover, the Defendant’s counsel had more than adequate time to conduct reasonable inquiry and form an accurate belief regarding the pleadings and the documents executed and entered into the court record. “Proof” consists of verified and demonstrated evidence, and not opinions or statements, especially statements unsupported by fact, law, and evidence. Therefore, the Defendant’s attorney had no right to file any pleadings on behalf of the CBHA, as no authorized agents can act on its behalf, since there is no evidence on any record that the members voted for any directors of the corporation with proof of quorum certification, which can’t be backdated. Evidently, the deceptions, malice and misconduct before this Court were intentional. Therefore, the defendants and its counsel should be sanctioned.
- Failure to Comply with procedural Requirements
The Defendant’s attorney did not have the right to file pleadings on behalf of the Cameron Bay Homeowner’s Association (CBHA). There is no evidence that the members of the corporation voted for any directors, therefore casting doubt on the authority of the attorney to act on behalf of the CBHA. This lack of evidence raises questions about the validity of the defendant’s actions and their compliance with procedural requirements.
Moreover, corporations are abstract entities and cannot testify. Attorneys unverified statements in brief or oral arguments are not facts before the court. Defendant actually filed a plea of the general issue which are not allowed under Va. Supreme Court rule 3:8a. The Defendants plea in bar is thus tantamount to a denial of the facts alleged thus a plea of the general issue. Further, a plea in bar must: “aver with sufficient certainty such facts as amount to a legal bar. The facts must be set out with such particularity in the plea as to inform the plaintiff of the nature of the defense intended to be relied on, and thus to enable him to reply to it, to make up the issue thereon, and prepare for trial.” Richardson v. Ins. Co. of Valley of Virginia 68 Va. 749, 752 (1876)
Furthermore, the Defendant’s opposition to the Plaintiff’s motion is based on misrepresentations of facts. This deliberate misdirection and manipulation of facts undermines the integrity of the legal process and calls into question the defendant’s compliance with procedural requirements. The Plaintiff contends that the Defendant’s opposition is intended to mislead and influence the court, which is a clear violation of procedural requirements and the principles of fairness and justice.
Additionally, the Defendant’s opposition fails to present admissible evidence to prove their claims. The Defendant has relied on repeated unverified statements without any supporting business records. This disregard for providing proper evidence raises concerns about the defendant’s compliance with procedural requirements and their commitment to a fair and just legal process. The lack of admissible evidence further calls into question the validity of the defendant’s opposition and their adherence to procedural rules.
Moreover, the Defendant’s failure to file an answer within the stipulated time frame raises serious concerns about their compliance with procedural requirements. The defendant was already in default, and therefore, the court in Richmond County should not have transferred the case. This failure to comply with the required timeline demonstrates a disregard for procedural requirements and the importance of timely responses. It raises doubts about the defendant’s commitment to the legal process and their willingness to meet the necessary procedural obligations. The Plaintiff’s choice of forum is entitled to a “presumption of correctness” which should not be lightly defeated. See Norfolk & W. Ry. Co. v. Williams, 239 Va. 390, 394, 389 S.E.2d 714, 717 (1990) (citing Piper Aircraft v. Reyno, 454 U.S. 235 (1981)); accord Champigny v. Bayly, 55 Va. Cir. 381, 382 (Norfolk 2001). Additionally, the Plaintiff is not required to explain their choice of forum (See Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Cty. 2002).
The Plaintiff maintains that the Chesterfield Couty Circuit Court, where the case was transferred from the Richmond City Circuit Court, lacks subject matter jurisdiction to hear the case. As per sections 13.1-861 and 13.1-909 of the Virginia Laws, relief ought to be sought in the circuit court where the principal office of the corporation is located, currently the Richmond City Circuit Court.
The Plaintiff thus contends that the order is void. In accordance with Cassen v Slater, 1 Cir. CL071563, 75 Va. Cir. 327 (2008), a void judgement is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree. A void judgement cannot be validated by consent, ratification, waiver or estoppel. No court can uphold a void order.
Moreover, the Plaintiff asserts that The Richmond Circuit Court erred and abused its discretion in granting the transfer of venue to Chesterfield Circuit Court, citing a collateral attack. The cases mentioned by the Defendant, which purportedly rejected the Plaintiff’s arguments, were debt collection cases and did not have subject matter jurisdiction to conduct a dissolution of a corporation or review elections as mandated by the relevant Virginia laws.
Consequently, the alleged CBHA Attorney improperly appeared before the Court to seek monies by requesting sanctions. This is in violation of rules of professional conduct regarding fairness to opposing party, candor, and attorney’s duty to the Court regarding concealment. Plaintiff has already suffered damages as a result of the Attorney’s misrepresentation and concealment. Notably, the Plaintiff had to be subjected to the Attorney’s dilatory tactics, which amount to an impediment to justice. All pleadings filed by the Plaintiff were done with merit and in accordance with the law, not with the intent to cause any delay or harm. The Defendant’s counsel had more than adequate time to conduct reasonable inquiry and form an accurate belief regarding the pleadings and the documents executed and entered into the court record. “Proof” consists of verified and demonstrated evidence, and not opinions or statements, especially statements unsupported by fact, law, and evidence.
Therefore, the Defendant’s attorney had no right to file any pleadings on behalf of the CBHA, as no authorized agents can act on its behalf, since there is no evidence on any record that the members voted for any directors of the corporation with proof of quorum certification (which can’t be backdated). It is appears the deceptions, malice and misconduct before this Court were intentional. Therefore, the defendants and its counsel should be sanctioned.
In light of the preceding comprehensive objections, the Plaintiff requests this Honorable Cout to reconsider its order. Moreover, it would only be fair and just if the directions and decisions in the said order regarding the curt lacking jurisdiction were considered null and void. Further, that the court considered the prejudice occasioned on the Plaintiff as a result of the Defendants’ attorney misrepresentation. The court should also take note of the Defendants’ flagrant disregard of the procedural requirements which has occasioned the Plaintiff injustice.
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