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New motions and counterclaim filed

The ongoing case involving members of the Terre Du Lac Association's Board of Directors now has a motion for sanctions, bond increase, and a counterclaim filed.

Three additional filings have been entered in the case involving members of the Terre Du Lac Association's Board of Directors. The filings included a motion for sanctions, bond increase, and a counterclaim.

The filings were pertaining to a Temporary Restraining Order granted on May 3 against board members Cary Combs and Gary Keithley, which removed the two from the board pending a final hearing and subsequent judgment.

An evidentiary hearing was scheduled for last Thursday but was continued to allow for the respondent's attorney to take depositions of the TRO petitioners Herman Reisner and Michael Tilley.

On Tuesday attorney for respondents Combs and Keithley, R. Scott Reid, entered a motion for sanctions which stated that Tilley submitted a false affidavit and made misleading statements in order to obtain the restraining order granted May 3.

According to the motion, in Tilley’s sworn affidavit it stated that Combs and a third party appeared at the association business office on or before April 29 and locked themselves inside the room where financial records are kept.

Tilley's affidavit goes on to claim that while Combs and a third party were locked inside the room they refused to allow access to any other board members, association members and an association law enforcement officer, according to the motion.

In the deposition held Thursday, the motion states, Tilley reportedly admitted to these statements being false.

In February, a petition was compiled to oust three members of the association’s board of directors. As a result, Board President Dave Ruble along with board members Bob Brown and Keithley were placed on a recall ballot where it was to be decided by voters if the board members should retain their seats. The ballots were counted in March and the three held onto their positions.

Brown resigned his position on the board in March and Ruble resigned in April. Both members reportedly resigned for reasons unrelated to association matters.

According to the motion for sanctions, Tilley's affidavit claimed that Keithley used association money and resources to draft and issue a letter to 3,000 voting members of the Terre du Lac Association urging them to keep Ruble, Brown and Keithley in office. The motion states that Tilley admitted during the deposition that he had no information that this in fact occurred.

It was claimed in the motion that Tilley made statements in an effort to create the appearance that the board members had resigned in disgrace while failing to mention that Brown resigned  for medical reasons and Ruble resigned following a medical diagnosis that a family member received which will leave him with insufficient time to attend to the business of the association.

Lastly stated in this motion is that Combs and Keithley have been damaged as a result of the petitioners' misrepresentations and false statements and asks the court to order sanctions against the petitioners in a fair and reasonable amount to compensate the respondents for their damages and to deter petitioners and others from engaging in similar conduct.

In another Tuesday filing on behalf of Combs and Keithley, a motion to increase bond was submitted to the court.

Contained in the original restraining order the court set an injunction bond in the amount of $150. An Injunction Bond is a type of surety court bond that guarantees that the petitioner will pay court fees, costs, and damages sustained by the respondents if the court decides the restraining order, or temporary injunction, should not have been granted.

Courts are authorized, upon a motion, to increase the amount of the initial injunction bond in order to ensure the bond is set at a sufficient amount to cover respondents' damages including attorney fees.

In the bond increase motion it stated that “good cause exists for this court to increase petitioners injunction bond to $30,000 in order to recover respondents damages, improper pay to the association employees, court costs, and court reporter cost for depositions.”

A counterclaim was also filed Tuesday on behalf of the respondents. This counterclaim asks that Tilley be removed from the association board.

The claim alleges that Tilley engaged in fraudulent or dishonest conduct and/or gross abuse of authority or discretion with respect to the association and has violated his duties set forth by law.

The counterclaim contains five allegations of misconduct by Tilley.

First, the claim alleges that Tilley allowed association employees, using association equipment and fuel, to mow property owned by Terre du Lac Utility Corporation Inc. and that Tilley owns 50 percent of this corporation.

Secondly, the claim alleges that Tilley allowed paid association employees to perform testing and maintenance on his utility company’s fire hydrants located in the Terre Du Lac development, and that under the Missouri Public Service Commission rules and regulations the utility company is solely responsible for performing such work.

Next, the claim states that Tilley, having failed to get enough votes to remove Combs and Keithley in the recall election, filed the present "frivolous" lawsuit to remove them from the association board.

The motion states that Tilley made false and misleading statements and caused the court to enter orders to the detriment of the association membership at large and will ultimately result in the membership being forced to pay the respondents’ legal expenses and court costs.

Further, the claim alleges that Tilley abused his power and authority as a board member and president of the association by making payment arrangements to pay $100 per month on a $1,700 bill to his utility company to repair road cuts made for his company. The claim also states that Tilley did not seek or obtain board approval for such payments, but rather made the arrangements directly with the general manager of the association.

Lastly, an allegation was made in the claim that Tilley violated the court’s order by reviewing and accepting bids for construction projects and approving raises to association employees, despite the fact that the board did not have a quorum present under its bylaws and that it was the order of the court that the petitioners authority is limited to actions required to ensure the essential functions of the association, such as payroll obligations.

These are motions and counterclaims that have been filed but not heard or ruled on by the court. An evidentiary hearing for this ongoing case is set for May 23 before Judge Joe Goff Jr.

 

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Bobby Radford is a reporter for the Daily Journal. He can be reached at 573-518-3628, or at bradford@dailyjournalonline.com.

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