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OPINION
Ocean Pines PROGRESS January 2023
COMMENTARY
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Janasek wins, ‘bad faith’ loses
he recent conclusion to the Janasek vs. OPA litigation could not have been more satisfying or just, with the $49,000 (and rising) cost to the OPA to defend the indefensible sending a message to certain directors past and current that language in the governing documents that limit the powers of the Board of Directors needs to be followed. Had a Board majority last summer not harbored animus toward former Director Tom Janasek, and had it been able to read, comprehend and apply clear direction in the by-laws and other governing documents, Janasek would not have felt compelled to file a suit to overturn the injustice of a 90-day suspension from OPA food and beverage venues. Had rationality prevailed once it became clear that it was Janasek who had engaged in a verbal altercation with former Director Josette Wheatley, using language that is not used in polite society, whatever that is in this dystopian day and age, the issue would have been handled by Wheatley filing for and obtaining a “peace order” banning Janasek from her presence for a period of six months. Janasek apologized, she obtained a peace order, and that’s where it should have ended, but it didn’t. A Board majority acting out of hubris and animosity, and a misplaced allegiance to Wheatley, and violation of clear language in the governing documents, decided it needed to intervene by suspending Janasek for 90 days, presumably to keep him out of the food and beverage venues in particular, where he has a part-time job maintaining draft beer lines. Decisions by Worcester County Circuit Court Judge Beau Oglesby, including a temporary restraining order and temporary injunction, were decided indisputably in Janasek’s favor. Had the litigation continued into the summary judgment phase, there is no doubt as to the outcome. Janasek’s attorney, Bruce Bright, in every aspect, won every argument in the case. Two statements by the Court’s most recent ruling stand out. One is that specific language in the governing documents limit amenity suspensions to failure to pay annual assessments and declared violations of restrictive covenants, or a decision by the General Manager that a suspension is warranted. These specific instructions, according to the judge, could not be overruled or rendered meaningless by vague authority in governing documents giving the Board the power to act in the best interests or general welfare of Ocean Pines. Members of last year’s Board majority before election results were known in August argued general welfare language prevailed over specific limitations. They were, simply put, wrong. The judge also articulated ways that the former Board majority had exercised “bad faith” in its unfair persecution of Janasek. As they’ve
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5*
0
* Janasek vs. OPA (extra point for legal fees), Farr vs. OPA, Trendic vs. OPA, Swim and Racquet Club case
been itemized in prior editions of the Progress, they won’t be repeated here. Suffice it so say that Janasek, in rejecting a settlement offer of $2,000 and then $10,000 to settle, would not be bought off so easily. He cited the former Board’s bad faith, and similar bad acting in the 2021-22 Farr case and the 2019 Trendic case, as reasons he wouldn’t settle. That and a statement attributed to Frank Daly, according to one of his colleagues, that the intent was to bleed Janasek dry. More bad faith to add to the toxic stew. When the smoke had cleared from the settlement conference on Dec. 21, it was evident the current Board had capitulated, deciding in a 6-0 vote -- Colette Horn not attending and not voting -- to cover Janasek’s legal fees in return for settling the case. According to OPA Director Rick Farr, that contribution is $18,750. The OPA’s insurance company will pay them, as well it should. This outcome is another triumph for Bruce Bright. While state courts in Maryland rarely grant attorney’s fees to the prevailing party in litigation, it turns out the insurance company thought it a prudent investment in a reasonable settlement. The OPA had a very poor hand going into settlement talks on the merits of the case. One director commenting on “bleeding Janasek dry” was hardly going to improve the OPA’s lack of leverage. This debacle cost the OPA its $25,000 insurance deductible and another reported $24,000 (through November) to Lerch Early, whose general counsel, Jeremy Tucker, provided auxiliary legal services to the OPA Board and insurance
company lawyers. To the extent Lerch Early is helping with the final settlement document, more expense in December and even January is likely. At the very least, defendants Daly, Horn, Perrone, and Peck should apologize to the OPA membership for their Court-adjudicated bad faith in the Janasek affair. Some retroactive crow consumption and asking for forgiveness in the Farr and Trendic cases would also be appropriate. That doesn’t seem too likely, though. Reporting in this edition of the Progress suggests that directors Daly and Horn are planning some timely deflection or blame-shifting as early as the January Board meeting. Stay tuned for some pending motions involving the Matt Ortt Companies. No repercussions or accountability will befall Daly and Horn, the two defendants in the case who remain on the Board. And yet the former Board majority was all too willing, if not anxious, to impose accountability on Janasek by giving him a three-month time-out, one that would have affected his livelihood by prohibiting him from practicing his trade at Ocean Pines bar venues. That’s a two-tiered system of accountability. The former Board majority last year went to bat to defend Wheatley, who had voted self-servingly to suspend Janasek when she should have recused, since she had a starring role in the affair. This is the same former director who recently labeled the current Board a “criminal enterprise” for reasons poorly articulated but no doubt having something to do with the Board majority’s steadfast support of the Matt Ortt Companies in the failing boycott campaign. - Tom Stauss