Court of Appeals hears dispute over whether HOA harms are fiduciary or individual, and scope of attorney-fee award

A three-judge panel of the Utah Court of Appeals heard oral argument in Fleming v. Delante over whether the harms alleged by condominium owner George Fleming are individualized claims for gross negligence under the Utah Revised Nonprofit Corporations Act or derivatives of fiduciary breaches, and whether earlier rulings justify an award of roughly $250,000 in attorney fees. Troy Gore, counsel for Fleming, and John Morris, counsel for Jim Delante, disputed how to characterize the pleading history and the legal standard for gross negligence.

The question at the center of argument was whether Fleming alleged harms that are personal and therefore actionable directly, or whether the complaint primarily alleged breaches of fiduciary duty that belong to the association and must be brought derivatively. "There are individualized harms remaining," Troy Gore argued, citing impaired enjoyment of Fleming's unit and testimony that information was concealed from the board. "Concealment is the key…