The board of apartment owners of a Banyan Drive condominium has gone on the offensive against an apartment owner who tried to assume control of the building by ballot and in court.
Honolulu attorneys Christian Porter and Linda Ichiyama filed suit July 1 in Hilo Circuit Court on behalf of the Association of Apartment Owners of Country Club Hawaii Inc. The lead defendant is Carl Oguss, leader of a group of apartment owners that held an election seeking to unseat the original board. Also named are attorneys Steve Strauss and Peter Steinberg, both of whom represented Oguss’ board against Country Club master leaseholder Herbert Arata, former building manager Kevin Aoki and the original board in two lawsuits.
On May 23, Kauai Circuit Judge Randall Valenciano dismissed one of two suits brought by Oguss’ board, saying the mail-in election held by the group is not allowed in the association by-laws and that Oguss’ board lacks legal stading to bring the matter to court. The dismissal was with prejudice, which means Oguss and his group cannot refile.
The current suit — which states all parties have stipulated to dismiss the other suit brought by Oguss’ board — seeks a permanent injunction ordering all association books, records, files and fees that Oguss, Strauss and Steinberg may have in their possession be turned over to the original board, as well as tax records for the years 2012 and 2013. It also seeks an accounting of all funds received and disbursed by the Oguss Board on behalf of the association.
“He (Oguss) has not returned any of the records he has of Country Club-Hawaii,” Richard Emery of Hawaii First, the current Country Club managing agent, said Tuesday. “He took original records of the association after he alleged he was the board and meanwhile collected funds from the owners. And meanwhile, we have asked for a complete accounting of any funds remaining, as well as the records, and we asked it of him and the two attorneys he hired, who are Mr. Strauss and Mr. Steinberg.
“The judge has determined who the true board is and Country Club-Hawaii is entitled to those funds and information, and we have asked them that in writing by letter and by e-mail several times, and they’ve refused to comply.”
According to the suit, both Strauss and Steinberg have invoked attorney-client privilege and protection of work product as reasons for not turning over documents.
“I’m going to quote Yogi Berra: ‘It’s not over ‘til it’s over,’” Steinberg said Tuesday, and declined to comment further.
The battling boards caused what Pearl Elena Macomber, who chairs the original board, described in March as “gridlock.” The building had been more than $200,000 in arrears in paying its electric bill to Hawaii Electric Light Co., and the utility had threatened in February to turn the lights out at the six-floor Hilo building if payments were not paid. The building was put into receivership by the court, but the dismissal of the suit legally dissolved the receivership.
“The receiver paid about $75,000 to HELCO during his period,” Emery said. :We only received the (court) order, I think, Monday, so we couldn’t (previously) access the money in the (receivership account). So now, we’re putting together an accounting of the funds that we do have and I’m gonna be working this week on a payment plan with HELCO to keep that from becoming a problem.
“We just want to get an accounting done and get the bills paid so we can turn this thing around, and I think we’re well on the way to accomplishing that now.”
Emery said the Macomber board met last week, and many of the owners attended.
“The flavor of the meeting was now that the judge has ruled, we now need to work together to make Country Club a better place,” he said. “… I felt that was very positive from the owners, some of whom may have followed Oguss previously.”
According to the current filing, all parties to the second lawsuit filed by Oguss’ board agreed to dismiss that case, although the Tribune-Herald could not find records of at on Tuesday. Emery said the stipulation to dismiss was accurate. Asked about the stipulation, Steinberg replied, “I’ll stick to my original statement.”
Calls Tuesday to Oguss, Strauss, and Ichiyama were not returned by story deadline.
Email John Burnett at jburnett@hawaiitribune-herald.com.