Diamondhead News Lawsuit(s)

This topic contains 14 replies, has 471 voices, and was last updated by  Editor 9 years, 10 months ago.

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  • #1834

    Editor
    Moderator

    This forum is dedicated to the ongoing legal battles over the contract for the Diamondhdead News.

    #1833

    Anonymous

    I have been living in Diamondhead for four years and thought it was a stress free place to live. However, since I have logged onto this forum website I am having different feelings. It seems there are a lot of angry people living here. Almost as if everyone wants to be better than the other or have more power than the other.

    Stop and smell the roses, watch the deer, identify the beautiful birds, and just enjoy living in a very nice place.

    #1835

    FortunateOne
    Member

    All that is necessary for evil to triumpn is for good men to do nothing.

    #2291

    prhode
    Member

    I received an email regarding the new news regarding this case. Apparently the POA has opened us up to a possible million dollar payout. This is ridiculous.

    As I am new to these forums, although I have been a member for some time now I was not an active member, I am not sure what the legal suit is all about.

    I have heard rumors that this case is about logos and/or advertising monies. Is this true? If not, what is it about?

    First of all if this is still about the LOGO, is so then why have they not changed the logo and moved on? Are we talking about the 2 little lines in the shape of a volcano? There are no volcanoes in MS, just change the logo and make it something that actually represents our community. I have truly never associated DH with the 2 little lines. The LOGO has never be impressive enough or representative enough to be worth a law suit much less a million dollars.

    Does the POA really owe Bay Jourdan a million dollars or is this an inflated amount including some ridiculous punitive damages? What did BJP really loose?

    What happens if the residents refuse to pay? Can it at that time become a personal debt to the people the made the choices?

    Is this the same Bay Jourdan Publisher that created and runs this site?

    This seems to keep getting more and more deceptive by the moment. I should have been reading and participating since moving here in 2003 maybe then I would have a clue as to what is going on and what all the rumors are about.

    If anyone has any answers please share.

    #2299

    Editor
    Moderator

    There are three separate lawsuits that involve the Diamondhead POA and Bay Jourdan Publishing, the owner of this website. The POA board of directors has misrepresented the facts in these cases numerous times, in court and out. Among these misrepresentations is their claim at various times that only one case exists. The court record clearly shows that this is not true.

    The first suit was filed by the POA in 1997 against my wife, myself and our Bay Jourdan Publishing Company to prohibit us from publishing the Diamondhead News. We were at the time and remain members of the POA. This fact was never brought up at the hearing for a preliminary injunction held in June of 1997. Judge Thomas Teel issued a narrowly worded preliminary injunction against us. The preliminary injunction did not grant the POA its request that the joint venture was to be terminated. The joint venture contract specifically calls for arbitration and a sixty day remedy period for all disputes. The POA ignored the sixty day remedy clause, filed suit and rushed us into court under a special procedure called a fiat. Normally in a civil action you are allowed thirty days to respond to the allegation. In this case we had less than ten days to respond. As of this date we have been unable to present our defense.

    It was not until after this special hearing that we learned that the judge in this case, Thomas Teel, was the brother of a partner in the POAâs law firm. We immediately filed a motion to have Teel removed from the case, but Teel had already issued his order. In his order, Teel denied our request for arbitration, enjoined us from selling advertisement and collecting monies in conjunction with the The Diamondhead News (prior to our partnership arrangement, the POA produced the publication for fourteen years at an average annual loss of over $40,000) and within four months we, The Bay Jourdan Publishing Company, made it profitable to the POA.
    The second case was filed by us against the individual board members at the time of the contract and Gulf Publishing Company, who now sells ads, typesets and prints the
    newspaper. under the contract with Gulf Publishing. The basis of the suit is torturous interference with a contract. In this case it should be noted that in the current contract Gulf Publishing has with the POA board of directors a clause specifically states that the POA is responsible for all legal fees and damages if we prevail in any legal action against them. This is the only action that we seek punitive damages.
    The last suit is beyond belief. The POA board of directors has sued us, their members, for use of not only the volcanic symbol it claims as their own by way of a fraudulent trademark filing in Mississippi Secretary of Statesâ office but also the use of the word âDiamondheadâ. Believe it or not, the current POA board is seeking an injunction against its own members to enjoin them from using the word âDiamondheadâ.

    It should be noted that our company the Bay Jourdan Publishing Company has since 1994 and continues to publish the , is provided free of charge to the public. No membership dues were used in its creation. It has been in operation since 1998 and remains the only website that deals with the community of Diamondhead, MS that is open and not edited or censored by the Diamondhead POA board of directors.

    The POA did not file its trademark claim until 1997 and presented no evidence of its ownership of the artwork it filed. No notice of its filing has ever appeared in any of its publications. The symbol has been in common use in the community since at least the early 1970s and numerous businesses in the community have used and continue to use both the volcanic symbol and the word âDiamondheadâ in commerce. The Diamondhead Fire Department uses both the word and symbol on their shoulder patches. The word âDiamondhead â is displayed on the water tower which is the property not of the POA but of the Diamondhead Water and Sewer District. Both the DFD and the DWSD are governmental agencies. Diamondhead is also used by the Neil Diamond fan club, a rock group and a community in Arkansas, among many others. As a geographical location, legally it cannot be trademarked. We have even heard that there is a place as far away as Hawaii that uses it. Contained in their filing with the Secretary of State is artwork created by my wife and me. We have been told that the Mississippi Secretary of State will file a ham sandwich as a trademark. Simply filing a trademark does not mean it cannot be challenged and if you filed it fraudulently there are both criminal and civil penalties.

    Numerous legal principles have been ignored by the POA and their attorney is this case. Common use, first amendment, fraud, membersâ rights and theft of intellectual property are just of few. We have countersued the POA in this action seeking a judgment of fraud and copyright infringement. The artwork the POA registered as its trademark is copyrighted by us. Penalties for copyright infringement can be up to two million dollars. We also seek damages in this case for fraud along with damages for malicious prosecution and legal fees.
    ace=”Calibri” size=”3″>What have we lost? The list is indeed a long one. Profits from our own creation, our investment and interest in the partnership known as t
    he
    Diamondhead News, intellectual property, respect in the community, membersâ rights, first amendment freedoms and mounting legal fees are just a few items that have either been denied or stolen from us. And the POA board is attempting to have more of our rights denied.
    One important question that you did not ask in your post is how much is all of this costing the membership of the POA? Outside of the enormous legal fees charged by the attorneys representing the POA and its board (we have heard estimates the over $200,000 have been spent on these suits by the POA board, but the board does not itemize legal expenses on a per case base in its financial report to the members), no member of the Diamondhead Country Club and Property Owners Association is allowed to present their opinion in the their own newsletter or the so called "offical" web site of the Diamondhead POA (the website is paid for by members dues at a cost of $300.00 per month) unless the board approves.

    Did we mention the first amendment?

    #2302

    prhode
    Member

    T.R. thank you for your reply, it was quite informative. This appears to be quite a mess but I personally do not feel that the property owners should have to pay for the problems between the POA board and your company, your wife, or yourself. I can sympathize with your dilemma and know enough about the law to see where this could go either way, you could get squished. As for your legal rights (first amendment) or even just the human right to be treated fairly, although neither should be in question, unfortunately they both usually get lost in the legal system. I apologize but I will not take a side in this argument and could not since I do not know all of the details from both sides. Please do not take this as a slight toward you or yours…I simply feel that there are always three sides to every story. Both participants will usually slant the story to their favor and somewhere in the middle is reality. I would not have asked but many people have been talking about all of the lawsuits in DH and wondering how much of that is pushing our fees upward.

    This website has opened my eyes to a lot of the brouhaha lurking in DH…between the fees, the board, the gossip, and the unbelievable antagonist views it makes one not want to live here. We are not the quaint little community that we portray and it is quite disappointing.

    However, most importantly is that the residents should not have to bear the burden of such a lawsuit. We truly need to do something about the way the board runs this non-profit business that we call home.

    #2303

    prhode
    Member

    T.R.,

    Another question for you. After reading the attached articles, it appears that dissolution of the joint venture does not require an act of arbitration. It says, “This agreement may be terminated by any party for the material breach of any other party. “ There is a 60-day provision as well as acts of correction nullifying the termination. Therefore, you could have terminated the contract as soon as you felt that the POA was unjustly turning in a new direction. I haven’t a clue what they think you did to warrant such a change. Either way the contract could have been stopped whereby the price tag for the residents may have been manageable. However, the arbitration does not arise until which time there is a stale mate between the parties. At that time, the arbitrator would/could render a decision, which would be binding on all parties. Therefore, it appears that the POA could terminate the contract or You could terminate the contract and stop the perpetual monthly fees from becoming an insurmountable sum. From your post, it seems that the 60-days have come and gone, there appears to be no resolution between the parties, and the contract appears to have been terminated. Therefore, it should only be the matter of an arbitrator deciding “each party’s interest in the venture”. Is that also in question. Do either you or the POA wish to continue the joint venture and if so, why? Why would either party want to be in business with someone that both parties (I am making an assumption here, as I have not spoken with the POA) apparently finds most abhorrent.

    Therefore, unless I have missed something it appears that the perpetual summation of the monthly fees should have stopped some time ago, say around 1997. So how does the lawsuit amount to $1,000,000.00 or more? The DH residents would be pleased to see that the perpetual fees, therefore, the $1,000,000.00 price tag could be an error. You should find this quite ironic since you are also a resident having to foot the bill to yourself. I suppose it could create a conflict of interest for you.

    #2305

    Editor
    Moderator

    With all due respect I believe you have missed the point. We were sued by the POA or more properly we were sued by a board who wished to deprive the membership of their rights to equal access to their own publication in the name of the POA. The contract clearly called for arbitration in all matters. Instead the POA board chose to file suit. Any second year business major knows that arbitration is vastly preferable to litigation. The monies spent on legal fees by subsequent boards have been totally unnecessary. Arbitration would have settled the matter within weeks not 10 years. It is your rights that we have defended and your rights that the current POA board continues to circumvent. Why are you not allowed as a member of the POA to post anything in your newsletter or your website?

    It would be up to the membership to file an action against its board to hold them accountable for their obvious mismanagement of the entire affair. Have you ever heard of a member’s derivative action?

    #2306

    Editor
    Moderator

    You are in almost complete agreement with our position.

    The paragraph in contract you refer to covers termination not dissolution. Dissolution is covered in paragraph 17.

    Several points of law are at question here. A joint venture is a partnership. Our interest still remains in the partnership. As a partnership, the partners are entitled to their share of the profits and the value of the partnership when it is dissolved. The contract has not been terminated. Although the POA moved to have it terminated no judge has granted that motion in 10 years. Again arbitration could have ended this fiasco in weeks. We demanded arbitration since the first day. The first words out of our attorneyâs month were to demand arbitration. We still demand arbitration and will do so to all courts necessary. It was and still is the POAâs board that has fought arbitration, ignored arbitration at the membersâ expense.

    You may be surprise to find the value of the Diamondhead News partnership. We have several companies that are willing to buy the publication for a considerable sum. This of course would end the involvement of the POA board in the publication as the new owner would be required to follow Mississippi law and give all members equal access to the publication.

    Lastly, I find it a very strange case of pretzel logic that places us in a conflict since we were the ones originally sued. We do pay the attorney for the POA with our dues. We do so under duress. If we were to stop the practice they would lien our property. The conflict clearly lies with the attorney who sues his own client and the POA who sues their own members. Both having the sole purpose of denying all members of their rights. Pleae see our article: http://www.diamondheadnews.com/absolutenm/templates/legal.aspx?articleid=604&zoneid=2

    #2307

    prhode
    Member

    Yes I know that arbitration is prefereable due to the cost of litigation.

    No I have not heard of a member’s derivative action. So what is it?

    #2308

    prhode
    Member

    Where does one go to obtain a copy of the articles of incorporation and the covenants? I would really like to have a look at them.

    Yes indeed, they would lien your property as sure as I am sitting here. I find that “power” in the POA to be abused.

    #2309

    Editor
    Moderator

    There is a strange contradiction here. You seem to be versed in law. Not to put you on the spot, I have a question for you. A corporation is an entity created by the state at the request of one or more individuals. It is created by means of a charter or articles of incorporation. The question is: Can a corporation exceed or violate its own charter?

    Before you answer please read section 7 of the Diamondhead Country Club and Property Owners Association, Inc. articles of incorporation:

    http://www.diamondheadnews.com/absolutenm/templates/POADocs.aspx?articleid=306&zoneid=53

    It has never been ammended.

    Bet you won’t see that on the "official"website of Diamondhead.

    #2310

    Editor
    Moderator

    When the stockholders, in the case of for profit corporations, or members, in the case of a non – profit corporations, believe that their officers and/or board of directors have acted in a manner injurious to the corporation those member and stockholders have the right to sue the officers/directors in what is know as a derivative action. They may also sue to dissolve the corporation. Please read Title 79 Chapter 11 at http://michie.com/Mississippi/lpext.dll?f=templates&fn=main-h.htm&cp=

    Those who do not exercise their rights, lose them.

    #2316

    prhode
    Member

    Why would you think it a contradiction? I have studied some business law and although I am not an attorney some of my best friends are, I kid them constantly. They tend to become fodder for the office jokes (what do you call an attorney at the bottom of the pool………a start). Good thing they have a sense of humor.

    It seems you answered my first question, was the charter amended. They do have that right however, short of an amendment it should be difficult, not impossible to “exceed” or “violate” the charter. However, they could basically do whatever they chose to do if no one challenged them. What specifically do you see as their violations.

    I will re-read the attached link…it was a quick read last night.

    #2380

    Editor
    Moderator

    According to Section 7 of the Diamondhead Country Club and Property Owners Association, Inc.’s corporate charter, the only remedy for non payment of dues is expulsion from the POA. The POA has exceeded their charter by attaching a lien of property and actually seizing certain land.

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