LA VENTANA, TEXAS - La Ventana Driftwood

Volume 1, Number 1
February 23, 2016
Page 1
LA VENTANA, TEXAS
La Ventana Ranch Owners for Self-Governance
LA VENTANA DECLARANT CHALLENGE UPDATE
M
uch has happened since last
summer when we first began
to engage our entire community in
in the effort to determine whether
or not the Declarant, as a legal
entity, still exists.
recorded a document assigning
(transferring) Declarant rights to
Pacesetter Homes.
La Ventana homeowner and
attorney, Kent Wymore, in
coordination with Pacesetter,
joined in the lawsuit [Lawsuit #2]
Plaintiffs (Plisowski/Miller) and the against Salvo and Tanner claiming
Lowdens signed a mutual release. to represent the LVROA. He
The Lowdens were then dropped
named the LVROA as a Plaintiff.
On December 8, 2015, as
from the suit. “Lawsuit #1” was
Had it not been for Mr. Wymore’s
homeowners, we filed suit to obtain never about the Lowdens, but
participation and acting as a
a judicial decision regarding the
rather about the legitimacy of the
representative of the ROA, the
legitimacy of anyone who is
Declarant rights.
ROA would not be a party to any
attempting to assume the role of
lawsuit concerning the Declarant’s
Pacesetter then held what we call a legitimacy.
Declarant. As you may know, the
“Rogue” board meeting. In that
Declarant has had “dictatorial”
Mark Miller
meeting, they passed a resolution
rights in the governance of La
[email protected]
that basically stated that the ROA
Ventana ROA.
512 738-5510
was authorizing funds to sue Class
Michael Plisowski
At the time our lawsuit was filed,
A directors Vincent Salvo and Kim
[email protected]
Dale and Lanette Lowden were
Tanner as individuals.
713 817-7337
assuming the role of Declarant. We
took this action because there is a
clear need to resolve the issue. In
MYTH # 1
MYTH # 2
the absence of a legally authorized
Pacesetter to gift water well,
Declarant, any actions taken by a
The Lowdens, when
and propane storage to the
board that is controlled by Directors
Declarant, donated $3,000 per
appointed by the would-be
community.
month to the ROA.
Declarant are not enforceable and
FACT
could be subjected to a reversal.
FACT
Not true. Pacesetter must provide
The La Ventana ROA
Consequently, we decided to take
water and propane for the homes
this action. The suit [Lawsuit #1] at
income
statement reveals no
it builds. No choice.
first named the Lowdens as
such donation, voluntarily or
Defendants; however, on the same Current residents may or may not
otherwise.
benefit.
day this suit was filed the Lowdens
Volume 1, Number 1
February 23, 2016
Page 2
How Has La Ventana Been Governed?
T
he Ranch Owners Association
(ROA) has been governed by
a five person Board of Directors as
specified in the La Ventana
Covenants, Conditions and
Restrictions (CC&Rs).
was discovered that exists over the
“Chain of Title” to the Declarant.
The timeline on the subsequent
pages of this publication set forth
the sequence of events that clearly
demonstrate that the “Chain of
The board consists of “Class A”
Declarancy” was disrupted over ten
members and “Class B” members.
years ago. And, once the chain
was broken, any attempt for
Two Class A board members are
Ultimately, as communities mature,
elected by the “Ranch Owners” or
subsequent entities to assume
the need for a Declarant no longer
resident property owners on an
those rights has not been legally
exists, and it can become
annual basis; these individuals hold
possible.
extinguished.
the offices of President-CEO and
A legal clarification from a Hays
Secretary-Treasurer.
In the case of La Ventana, the
County district judge is currently
development has been populated
being sought from the lawsuit
Three Class B directors are
with residents who are fully
appointed by the Declarant. The
[Lawsuit #1] filed late last year by
capable of governing their own
Declarant was created in order to
residents Mark Miller and Michael
community without the intervention
give the Developer dominant
Plisowski. They are asking the
and control of a Declarant that may
control over La Ventana’s
judge to affirm that La Ventana’s
or may not have the best interests
governance. This is a common
governance will not be subjected to
of the community in mind.
practice for new developments
the control of a Declarant.
because it provides a means for
With that said, it is at least possible
the Developer to protect their
that a Declarant could exert its
investment of the community’s
unilateral powers over the
infrastructure which is made up
governance of La Ventana for the
front.
foreseeable future.
The unilateral rights reserved for
Within the past year, a major flaw
the Declarant have exceptional
MYTH # 3
powers over key aspects that
impact the management and
destiny of the community. These
powers include architectural, land
FACT
management and acquisition,
No gift. Pacesetter only agreed to pay
infrastructure and overall operating
for what they damage. No more or no
practices.
less than any other builder.
According to the La Ventana
CCR Article III Section 3.42
CCRs, Declarant rights may be
Construction Activities!… Any
damage to the Private Roads caused
transferred to successive
by construction activities shall be
individuals or entities.
repaired by the Owner responsible
for such damage….
MYTH #4
FACT
Not likely, the ROA has been
involved in plenty of suits and
there has never been a special
assessment for legal fees.
Volume 1, Number 1
February 23, 2016
Page 3
HOW LA VENTANA PROSPERS WITHOUT DECLARANT
BENEFIT
EXPLANATION
No development beyond current lots
without Homeowners’ approval
CCR Articles II, V section 5.5, X section 10.1 and 10.3(a)
outline Declarant rights which include the right to develop
and add land without homeowner approval. Without Declarant these powers go away.
No declarant control of common areas,
including infrastructure
CCR Article VIII section 8.5 Declarant can modify easements 8.13 Declarant reserves the right to amend the
boundaries of all common areas.
No change in CCRs/by-laws without
Homeowners’ approval
CCR Article X section 10.3 Declarant, on his/her own can
amend the Declaration.
No Class B board members
Bylaws Article III section 2(a) allows the Class B Member
(declarant) to appoint 3 of the 5 ROA board members.
No Architectural Committee control by
Declarant
CCR Article V section 5.5 grants Declarant sole authority
to appoint and remove Architectural Committee members.
La Ventana Homeowners become responsible for La Ventana’s future.
The board, entirely elected by the homeowners, would assume the entire governance powers subject to the approval
(in many cases) of homeowners.
As I see it...
My wife and I are newcomers to LV. No outside
individual or entity, regardless of sincerity or motive,
could possibly know what is best for the owners
and families of an established community like ours.
After 15+ years, that knowledge and experience is
now inalienable and has been earned by those
who live inside La Ventana. If the LVROA is
afforded the opportunity to be self-governed, all
future choices and decisions will be made by the
homeowners, whose interests should trump all
others for all time.
Jim Reiss
MYTH # 5
Home/lot owners can and should
vote on individual ROA
management issues.
Fact
Not true. The ROA Corporate
management construct, in
conformance with Texas law,
requires Corporate Officers to
manage the business with
oversight by the Board.
Homeowner votes are reserved for
very few occasions. Self
governance could change this
methodology.
Volume 1, Number 1
February 23, 2016
Page 4
Volume 1, Number 1
February 23, 2016
Page 5
Volume 1, Number 1
February 23, 2016
Page 6
Issues and Answers Regarding Declarant Clarification Lawsuit
[Lawsuit #1]
Issue 1
Issue 5
Why did we file the Declarant lawsuit?
Austin Attorney Connie Heyer was retained by the
LVROA to provide a legal opinion regarding the
validity of the Lowdens as Declarant. Was Ms.
Heyer’s opinion confidential information?
The lawsuit was filed to extinguish/remove the
Declarant from La Ventana making the future more
certain and to gain homeowner control of La
Ventana’s destiny. There are irregularities in the chain
of Declarant assignments creating a legal question.
We have asked the Court for a declaratory judgment
to resolve the issue. Although we believe that the
Court will rule in our favor, we are prepared to accept
the outcome, whatever it is.
Issue 2
Who are the parties to the lawsuit and who is
paying?
Plaintiffs are Michael Plisowski and Mark Miller;
Defendants were Dale and Lanette Lowden and
Pacesetter Homes. The Lowdens were dismissed
from the lawsuit when we received official notice they
were no longer Declarants. Pacesetter is the only
remaining Defendant. A group of fellow homeowners
are supporting the lawsuit. There are absolutely no
outside interests and no financial contribution from
the La Ventana ROA.
Issue 3
How and when was the La Ventana ROA notified
of the legal questions concerning the Declarant?
No. The Heyer opinion was NEVER confidential.
Issue 6
Was the Heyer opinion instrumental in the
development of our case?
No. The Heyer opinion came long after our theory of
the case had matured to its present state.
Issue 7
What happens to the ROA if the courts find in
Plaintiff’s [Miller/Plisowski] favor?
The community would become self-governed and
need to elect five more board members for a total of
seven. The ROA board would be increased to seven
Directors and the Bylaws and CCRs would be revised
to reflect the absence of a Declarant and Class B
Directors
Issue 8
What happens to the ROA if the courts find in
Pacesetter’s favor?
All Declarant powers continue indefinitely, in
accordance with the Bylaws and CCR’s. This could
In May of 2015, Miller met with ROA President Gary
include continued additions to La Ventana with
Politte to advise him of possible issues surrounding
construction that does not need to be compliant with
Declarant legitimacy. We then presented more
the CCRs or subject to Architectural Committee
detailed findings to small groups and then two general review. All Declarant powers and authorities and
sessions. In both the small group and general
exemptions contained in the CCRs would remain
sessions, we stated our intent to sue for Declaratory
intact.
Relief.
Issue 9
Issue 4
Why not seat the Class B (Pacesetter) board
Was there ever an attempt to talk to Lowden as
members and wait for the Court decision?
Declarant?
Class A board members have all the authority
Yes. We assumed after Miller’s conversation with Mr. necessary to operate the Corporation even in the
Politte that he spoke with Mr. Lowden. We do not
absence of Class B Board members. Any vote by
know this for a fact. We made two attempts to meet
Class A Board members is binding on the Corporation
with the Lowdens prior to filing the petition. We asked (ROA). If the Declarant is found to be legitimate, any
LVROA President Vincent Salvo to broker a meeting decision by the Class A Directors is binding. If Class
with the Lowdens. Mrs. Lowden first responded to Mr. B Board members were seated and they voted on
Salvo and then to Mr. Plisowski saying there was no decisions by the ROA, and, if the Declarant is ruled
reason to meet. In their response, it is clear they
illegitimate, those actions are also illegitimate
understood the topic of the requested meeting.
because Class B Board members should not have
been on the board.
Volume 1, Number 1
February 23, 2016
Page 7
Analysis of the Two Lawsuits
It is reasonable to believe that some neighbors may
be confused about lawsuits that have been filed that
attempt to address the issue of La Ventana’s
governance.
“Lawsuit #1” was filed by Plisowski and Miller (as
individuals) against Pacesetter Homes to seek a
judgment from the Court regarding whether or not
the Declarant authority for La Ventana has been
extinguished. Lawsuit #2 was filed by Pacesetter
Homes and the LVROA against the Class A La
Ventana ROA officers, Vincent Salvo and Kim
Tanner.
Both of these cases are pending before the
Honorable Bill Henry, 428th District Court, Hays
County. Based upon the Court’s initial rulings, it is
likely that the two lawsuits will become consolidated
into a single case.
Lawsuit # 1
(
Plaintiffs
Defendant
Plaintiff’s
Request
Status
Comments
Michael Plisowski, Mark
Miller
Pacesetter Homes
Seeking a judgment that
Declarant authority has been
extinguished
Lawsuit # 2
(
Pacesetter Homes, La Ventana ROA
Vincent Salvo
Kim Tanner
1. Seeking judgment that Pacesetter is Declarant
2. Seeking control of ROA finances
3. Make Class A Directors subordinate to Declarant and
Class B Directors
1. Suit filed
2. Defendant Answered
3. Discovery
1. Suit filed
2. Defendant answered
3. Defendant motion regarding Defendants’ indemnification
4. Defendant motion that Plaintiff LVROA prove authority to
act
There are no expectations for a
lengthy lawsuit. Hopefully, it will
be resolved in a matter of
months.
Salvo and Tanner are sued as individuals (and the only
homeowners) for their actions as Class A Directors. Salvo and
Tanner were the only ones who volunteered to run for office.
Who would ever want to run for these offices in the future? They
have acted with courage, grace and prudence in the face of
agitators who have used misleading and threatening tactics,
inconsistent with the interests of this community.
MYTH # 6
FACT
http://laventanadriftwood.org
Volume 1, Number 1
February 23, 2016
Page 8
A Secret Agenda?
Dear Neighbors,
We have been told by others that we surely have some
“hidden” agenda, or something other than merely
pursuing a legal action for determining if La Ventana’s
control by a Declarant is proper.
Well, the answer to that question is plain and simple. We
have no secret agenda. There is no lurking iceberg. We
expect nothing from this lawsuit, if you don’t count grief.
There is no payday at the end of this for us. No position.
No privilege. No advantage of any kind.
So why are we doing it? We’re doing it because we want
as much certainty as we can get with regard to the size,
governance and makeup of La Ventana. We not only
want this for ourselves, but also for our neighbors.
Michael
Plisowski
Mark
Miller
La Ventana Ranch Owners for Self-Governance
PO Box 345
Driftwood, Texas 78619-0345
As residents of a place we call La
Ventana, every time we (and those who
visit us) arrive or depart that place, we
are greeted by a magnificent herd of
Longhorn cattle.
Longhorns have the reputation for their
ability to endure conditions of drought and
disease and adversity that often cause
the demise of other breeds. And, they are
also known to vigorously protect
themselves from predators. Wildcats and
wolves harbor a healthy respect for the
Longhorn’s boundaries.
Like those Longhorns, when we assert
healthy boundaries, others will learn to
respect them.
PLACE
STAMP
HERE