Fifth District Judge Robert Lane late last week granted a defense motion to dismiss a lawsuit filed by the Comstock Park Homeowners Association against a handful of board opponents.

The suit accused Carlo Verdi, Carol Curtis, David Connors, Leon and Delores Goss of defamation, libel, slander and fraudulent misrepresentation.

Plaintiff's attorney Evan Wishengrad, representing homeowner's association directors Paul Enck, Darryl Setzkorn, Harold "Frank" Burfeind and Carol Volke, during a hearing before Judge Lane March 2, claimed the defendants went door to door in the mobile home park, accusing the board of embezzling money.

Language in the complaint also accused the defendants of disrupting homeowners' meetings and filing repeated complaints to the state ombudsman.

Enck has since stepped down as homeowners association president.

The defendants asked Lane to dismiss the case since the plaintiffs didn't obtain the approval of a majority of members of the homeowners association before filing suit as required under state law.

Lane rejected a claim by the homeowners association they were entitled to an exemption in state law requiring a majority vote for filing lawsuits in cases brought to enforce the bylaws of the homeowners association or to protect the health, safety and welfare of the members.

"Neither in the original complaint, nor in their opposition, did plaintiffs cite, or otherwise reference, any declarations, bylaws or rules that the defendants allegedly violated if plaintiffs seek to qualify for an exception to the explicit majority vote requirement," Lane wrote.

The plaintiffs raised allegations of tortuous conduct by the defendants -- wrongful acts constituting breaches of contract -- which were also inadequate to circumvent the majority vote requirement, he wrote.

"Plaintiffs in their opposition refer generally to a prohibition against door-to-door solicitation purportedly contained within the Comstock Park HOA's rules and regulations but fail to quote the relevant language, attach a copy thereof to the motion, or adequately describe how defendants' alleged conduct violates the rule," Lane wrote.

Claims by the homeowners association board the suit was taken to promote the health, safety and welfare of the members also aren't valid, the judge said.

"A plain reading of the verified complaint demonstrates that the action was brought solely for the benefit of the board of directors and little mention is made of any potential benefit to the association as a whole," Lane wrote.

Thomas Harper, the defendant's attorney who said he has been doing homeowners association business for 25 years, said, "That sums it all up, because if you also look at the verified complaint, it's replete with language about (how) this affected the personal lives and personal businesses of the board members. Then why is the association paying the freight for this lawsuit?

"If they have a claim it's not an association claim, it's a personal claim. Therefore it's in my opinion pretty horrific that you would have my clients paying for those fees ultimately."

The case was dismissed without prejudice. In his order Lane suggested the homeowners association would have to obtain a majority vote from association members or describe precisely how the defendants conduct violated specific bylaws or why the litigation is necessary to promote the health, safety and welfare of association members.

"I didn't ask that it be dismissed with prejudice, which means it couldn't ever be brought again. There's a statutory scheme. If you get the approval of the majority of the membership it could go forward," Harper said, admitting he doesn't want to allow "a second bite of the apple."

But the defendants may end up paying legal fees anyway, according to Harper.

"That's something the court is going to have to decide in the future, who's going to pay for these attorney fees. My clients had to go through the expense of this office and I would venture to say the association is going to have to pay the attorneys fees in this matter," Harper said.

Wishengrad, the plaintiff's attorney, was unavailable for comment by press time.