IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY,
FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO: 2018-22070 CA 01
JUDGE: BRONWYN C. MILLER
MIAMI DESIGN PRESERVATION
LEAGUE, INC.,

Plaintiff,
vs.

DANIEL CIRALDO,

Defendant,

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ORDER ON PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY

INJUNCTION

THIS CAUSE is before the Court upon Plaintiff’s Emergency Motion for Temporary

Injunction, the Court having considered said motion, reviewed the procedural history, all

relevant legal authority, conducted a full evidentiary hearing, and having been fully advised in

the premises, the Court hereby ORDERS and ADJUDGES as follows:

Background:

Petitioner, Miami Design Preservation League, Inc. (hereinafter “MDPL”), founded 42

years ago by the late Barbara Baer Capitman, is a Florida non-profit organization devoted to

preserving, protecting, and promoting the historical architecture of the Miami Beach Historic

District. MDPL spearheaded the “Art Deco Movement,” contributing substantially to the revival

of Miami Beach. MDPL coordinates and sponsors an annual Art Deco Weekend, a free

community cultural festival featuring multiple deco-oriented events. The next Art Deco

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Weekend is currently slated to take place in January 2019. MDPL traditionally receives funding

from the City of Miami Beach (hereinafter the “City”) to assist in covering costs relating to Art

Deco Weekend. Members of MDPL and its executive director regularly appear before the City

to advocate for historic preservation. In furtherance of its mission, members of MDPL often

directly oppose development or work with developers to effect compromise in pending

construction proposals.

MDPL is governed by the Miami Design Preservation League, Inc. Articles of

Incorporation (hereinafter the “Articles”) and the By-Laws of Miami Design Preservation

League, Inc., a Florida Not-For-Profit Corporation (as amended March 11, 2015) (hereinafter the

“Bylaws”). The Articles describe the mission statement of MDPL as follows:

1. To develop the concept of, and support for, preservation and adaptive re-use
of certain residences and commercial properties, particularly those properties
constructed in the 1920’s, 1930’s, and 1940’s in the South Florida area.
2. To develop a preliminary analysis of the feasibility of the creation of historic
preservation districts, covering various portions of the South Florida area,
taking into consideration the architectural, interior design, historical, social
and economic aspects of such a program.
3. To initiate applications for federal state, county, and private sources of
preservation planning and implementation funding to preserve and protect and
restore the architectural beauty aesthetic balance of various portions of the
South Florida area.
4. To increase community involvement and awareness of South Florida’s unique
cultural and architectural resources involving a res-structuring of the image of
the community and it’s (sic) setting.

Plaintiff’s Exhibit 1 at 1.

The Articles further provide that MDPL “shall not participate in, or intervene in

(including the publishing or distribution of statements) any political campaign on behalf of any

candidate for public office.” Id. at 3. Finally, the Articles state:

Voting members shall be those persons paying annual dues and evidencing an
interest in the purposes of the corporation as described herein. The board of
directors shall admit new members upon application. Voting members shall elect

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 the Board of Directors by majority vote at the annual meeting of the Corporation
to serve for a one-year term or until election of their successors.

Id. at 4 (emphasis supplied).

In 2017, MDPL determined that it was in need of a full-time executive director. After

devoting due consideration to potential candidates, the MDPL Board of Directors appointed

Respondent, Daniel Ciraldo (hereinafter “Ciraldo”), Interim Executive Director, to the position.

Ciraldo was a graduate of the Cushman School and New York University, and sported a resume

that included employment with Deloitte Consulting, a brief stint at Google, and a demonstrated

commitment to preservation advocacy through service as a preservation officer at MDPL.

The decision to appoint Ciraldo to the position was not without controversy. Marie

Hernandez (hereinafter “Hernandez”), Business Manager of MDPL, was also considered to be a

contender for the executive director position. Hernandez’s mother, former Miami Beach Mayor

Matti Bower, is a member of the Board of Trustees of MDPL. Nonetheless, it was not until after

Ciraldo sought a significant salary adjustment that the seeds of the instant controversy were

planted.

Ciraldo’s compensation is determined by the Board of Directors. After Ciraldo was

promoted from Interim Executive Director to Executive Director, the board unanimously voted

to increase his annual salary. The board was divided on the appropriate amount of increase and

research regarding the appropriate level of compensation was presented by various board

members. Negotiations ensued and, ultimately, Ciraldo received a marked increase in salary.

Tension ensued between the then-Board Chair, Steve Pynes, and Ciraldo.

The By-Laws of Miami Design Preservation League, Inc. (as amended March 11, 2015)

dictate the submission of candidates and the time of the annual election. Specifically, the By-

Law provide:

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 The annual meeting of the voting members shall be held at such time, date and
place as may be fixed by the board of directors, within the first six months of the
calendar year.

Id. at 2. With regard to candidates, the By-Laws state:

The chair will appoint a nominating committee. Members of this committee must
be voting members of the corporation, and they may be from the board or the
general membership. This committee will submit to the board of directors a list
of candidates for membership on the board. The board may accept, reject or
amend this list before submitting it to a vote by the voting members at the annual
meeting. A candidate also may be added to the list if the candidate is nominated
in a petition to the board signed by at least 10 members eligible to vote. The
petition must be submitted in writing at least 10 days before the election.
Nominations from the floor at the annual meeting will not be accepted.

Id. at 3.

In accord with both Florida law and the By-laws, the annual board elections were slated

to take place at the Annual Meeting on May 17, 2018. On April 16, 2018, in accord with the By-

laws, the Board approved a slate of nominees for the Board of Directors for the 2018-2019 year.

On May 17, 2018, at the Annual Meeting, awards were conferred upon certain “Best in

Class” honorees. At the conclusion of the awards ceremony, as members waited to vote, Pynes

cancelled the election, citing issues relating to proxy votes. A new election was scheduled and

Pynes appointed an “Election Committee,” consisting of three members of the Board of

Directors. Ciraldo was not invited to participate on the Election Committee. Recognizing that

allegiance, or lack thereof, to Ciraldo, following the salary increase, might polarize the

organization, Pynes appointed one “pro-Ciraldo” member, one “anti-Ciraldo” member, and one

“neutral” member to the Election Committee.

The Election Committee was directed to establish a procedure by which absentee ballots

proxy votes would be authorized and submitted. Counsel1 was consulted and an opinion

1
Counsel for the board, at that time was Joseph Geller, Esquire represents the Petitioner in the
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obtained regarding the propriety of accepting new nominations for the rescheduled election.

After receiving the opinion, Pynes communicated to the Board of Directors that, in accord with

the opinion, the deadline for the submission for nominating petitions was May 7, 2018. As such,

no new nominations would be accepted. Pynes further informed the Board that “membership

voting is limited to those paid members in good standing up and until the start of the Annual

Meeting on May 17, 2018.” As there was a concern regarding proxies, the Board created a

Proxy/Absentee Ballot. According to Pynes, all Proxy/Absentee Ballots and membership

applications were required to be submitted by Friday, June 15, 2018 at 7:00 p.m. to the MDPL

secretary. An accounting firm was retained to tabulate the votes. The accounting firm was

prohibited from having contact with Ciraldo.

Various slates were created and the MDPL membership was targeted with voter

recommendations. Notably, those board members seeking re-election who advocated for

Ciraldo’s increase, along with Ciraldo, were subject to a negative campaign initiated by an e-

mail account user identified as “Jose Viernes.” In response, Ciraldo prepared and forwarded his

own e-mail, recommending the election of certain directors.

On Monday, June 18, 2018, notwithstanding the Pynes-imposed deadline, candidates

arrived with 131 new membership applications, along with proxy documents and membership

fees, most of which were in cash. Randy Hilliard, a political consultant who had purportedly

opposed the elections of several sitting members of the City Commission, before whom MDPL

regularly appears, appeared with numerous proxies. Many proxies predated the membership

applications. Multiple applications had cash clipped to them. Ciraldo videotaped Hilliard

instant case, which although styled “MDPL” consists of the “newly-elected board,” if all proxies
are tabulated and determined legitimate. At the time he rendered the opinion, he was effectively
counsel for the pre-election Board of Directors.
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laughing, completing empty fields on proxies, and appending cash to the membership

applications. Although many membership applications were missing data, had incorrect or

unworkable telephone numbers, and reflected illegible names, Hernandez toiled throughout the

evening to input all of the purported “new member” information.

Pynes and Ciraldo sent competing emails announcing the “winners” of the election to the

membership base. Immediately thereafter, in accord with the Bylaws, ten percent of the pre-

election board called a special meeting to discuss election irregularities and the effect of the

proxies. This effort was led by Stuart Reed, Esquire, a member of the pre-election Board of

Directors.2 The meeting was called by current counsel for Ciraldo, then a board member. Pynes

sent an email rejecting the special meeting. The pre-election board met, nonetheless, and

decided, by vote, to immediately terminate the Board’s counsel and to reject all proxy ballots.

The results of the election and the decision to permit proxy votes has divided the

membership of MDPL. Some members believe that the proxies are invalid, as they predate the

membership applications. They further contend that the proxies and membership applications

were not timely submitted and that the failure to enforce on-line submission of applications has

given rise to fraud in the election. They cite to cash payments made to “gift” memberships to

individuals, resulting in the exercise of that “gifted” member’s proxy vote. Other members

assert that the election was properly conducted and that all proxies should be considered.

Pynes furnished Ciraldo with a notice of suspension, indicating that although Ciraldo

would continue to receive compensation, he was prohibited from performing further employment

duties. Petitioner, in the form of the “newly-elected” board, inclusive of all proxy votes, seeks to

enforce the suspension.

2
Reed has since resigned from the Board of Directors and represents Respondent in these
proceedings.
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Legal Analysis:

Respondent has consistently objected to the style of the case, contending that the board

purportedly holding power when all proxies and votes have been tabulated has erroneously filed

suit in the name of the non-profit. The distinction between a direct action and a derivative

action, in the context of a non-profit corporation was discussed at considerable length in Fox v.

Professional Wrecker Operators of Florida, Inc., 801 So. 2d 175 (Fla. 5th DCA 2001). The

Fifth District Court of Appeal noted:

A derivative action is generally defined as a cause of action on behalf of a

stockholder to enforce a right of action that exists on behalf of the
corporation. Fort Pierce Corp. v. Ivey, 671 So.2d 206 (Fla. 4th DCA 1996). It
seeks redress for an injury suffered by the corporation or the stockholders
generally. Id. A direct action, on the other hand, is a cause of action on behalf of a
stockholder to enforce a right of action that exists on behalf of the stockholder
individually. Id. It seeks redress for an injury suffered directly by the stockholder
which is separate from any injury sustained by the other stockholders. Id. Thus
the injury is the determining factor in deciding whether a claim is direct or
derivative; if the injury is to the corporation, and only indirectly harms the
shareholder, the claim must be pursued as a derivative claim.

Id. at 179. Despite noting revisions to Chapter 617, Florida Statutes and that “legal literature

exists which indicates a ‘historical reluctance’ by court to interfere in the internal operations of

nonprofit corporations,” the court, nonetheless, permitted a disgruntled member of a nonprofit to

maintain a derivative cause of action against errant directors. Id. at 180. In accord with this

binding precedent, the Court concludes that the post-election board has the right to maintain suit,

as styled.

Through its pleadings, Petitioner seeks “to have [Ciraldo] immediately ousted from the

positions he purported to hold, pending the resolution of his suspension.” Complaint at 5.

Petitioner further seeks to enjoin Ciraldo from access to MDPL’s premises and a turnover of all

bank accounts to the post-election board of directors.

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 A party seeking an injunction under general Florida case law must demonstrate: (1)

irreparable harm; (2) a clear legal right; (3) an inadequate remedy at law; and (4) consideration

of the public interest. Hiles v. Auto Bahn Federation, Inc., 498 So. 2d 997, 998 (Fla. 4th DCA

1986), citing Finkelstein v. Southeast Bank, N.A., 490 So. 2d 976, 980 (Fla. 4th DCA 1986).

Since a temporary injunction is an extraordinary remedy, it should be granted sparingly and only

after the moving party has alleged and proved facts entitling it to relief. Id., citing Contemporary

Interiors, Inc. v. Four Marks, Inc., 384 So. 2d 734, 735 (Fla. 4th DCA 1980).

Although there are a dearth of appellate opinions regarding application for injunction to

validate an adverse employment decision, there are numerous opinions addressing the threat of

loss of employment. In that context, the courts have found that “the threat of loss of employment

does not constitute irreparable harm.” City of Boynton Beach v. Finizio, 611 So. 2d 74, 75 (Fla.

4th DCA 1992), citing Dania Jai Alai Int'l v. Murua, 375 So. 2d 57, 58 (Fla. 4th DCA

1979); City of Hallandale v. Inglima, 346 So. 2d 84 (Fla. 4th DCA 1977); Florida Dep't of

Health & Rehabilitative Servs. v. Artis, 345 So. 2d 1109, 1111–12 (Fla. 4th DCA 1977). In the

instant case, it is clear from the testimony that Ciraldo has worked tirelessly to further the stated

goals of the organization. Although some controversy ensued over his salary, ultimately, the

Board of Directors ratified the increase following careful, methodical, and well-researched

presentations. Petitioner contends that Ciraldo’s response to the contentious pre-election efforts

and lack of neutrality in the election process gives rise to a violation of some unidentified

maxim. However, the neutrality requirement is not contained within the governing documents.

As such, there is no indication that Ciraldo’s continued employment will result in irreparable

harm. Instead, Ciraldo produced evidence that his leadership resulted in the resolution of a six-

figure judgment against Petitioner and brought financial stability to the organization. This

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position is anecdotally supported by the financial issues that have arisen since Ciraldo has been

divested of power to make MDPL’s financial decisions. Finally, credible testimony was

presented that Ciraldo enjoys a cooperative relationship with the City Commission. As such, it

stands to reason that his continued advocacy further the goals of the organization. Thus, there is

no showing of irreparable harm.

With regard to a clear legal right:

Ordinarily, an information in the nature of a quo warranto may be resorted to for

the purpose of determining the right of contending parties to exercise an office or
franchise, not only of a public nature, but also of a private corporation.

Where there is an adequate remedy at law by quo warranto, or information in the

nature of quo warranto, a court of equity cannot, in the absence of statute, or some
ground of equitable jurisdiction to which such relief is germane or incidental,
assume jurisdiction to declare an election void or remove or enjoin officers.

Swoope v. City of New Smyrna, 98 Fla. 1082, 125 So. 371 (Fla. 1929) (quoting Gentry–Futch

Company v. Gentry, 90 Fla. 595, 106 So. 473 (1925)). In the instant case, Petitioner may resort

to quo warranto. As such, a full and complete remedy at law is available.

The Court is not persuaded that Petitioner has met its burden of demonstrating that the

“post-election” board has been properly “qualified.” Alleged election irregularities, including

the payment of piles of cash, the “gifting” of memberships, the drafting of proxies by individuals

who were not yet members, the failure to corroborate membership information, the

postponement of the original election, and the violation of the originally imposed deadline for

candidate submission undermine the legitimacy of the election. “Vote-buying . . . is not limited

to the political arena; it has implications for corporate governance as well.” Douglas R. Cole, E-

Proxies for Sale? Corporate Vote-Buying in the Internet Age, 7 Wash. L. Rev. 793 (July, 2001).

Under the circumstances presented, the Court cannot conclude that the election was legitimate,

thus, Petitioner has failed to establish a clear legal right to relief.

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 Finally, it is axiomatic that non-profit corporations should endeavor to internally resolve

their own conflicts. This is simply good governance. MDPL was provided with the opportunity

to explore the allegations of pervasive election irregularities and fashion a self-directed

resolution when Mr. Reed invoked the special meeting provision of the By-Laws. Instead of

seizing this occasion, and allowing for the “airing of the grievances,” Mr. Pynes refused to

participate, announced the “winners,” and immediately suspended Mr. Ciraldo without any

transition or termination plan. As attested, the optics of the situation resulted in a lack of

confidence in the management of MDPL in the community at large and particularly before the

City Commission. As such, the public interest dictates against the issuance of an injunction.

Conclusion:

WHEREFORE, Plaintiff’s Emergency Motion for Temporary Injunction is hereby

DENIED.

DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 10/19/18.

_________________________________
BRONWYN C. MILLER
CIRCUIT COURT JUDGE

No Further Judicial Action Required on THIS

MOTION
CLERK TO RECLOSE CASE IF POST
JUDGMENT

The parties served with this Order are indicated in the accompanying 11th Circuit email
confirmation which includes all emails provided by the submitter. The movant shall
IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or
hand-delivery, to all parties/counsel of record for whom service is not indicated by the
accompanying 11th Circuit confirmation, and file proof of service with the Clerk of
Court.

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Signed original order sent electronically to the Clerk of Courts for filing in the Court file.

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