La Ventana lawsuit news & more
Interstate Land Sales Full Disclosure Act:
Buyer’s Recourse to Force a Buyback
Consumers that purchased a lot from a La Ventana developer might have a right to rescind the transaction under federal law. Read more…
May 17, 2012: Plaintiffs respond to La Ventana ROA’s and developer’s petition for review by the Texas Supreme Court
Plaintiffs respond to numerous flaws in Interim-La Ventana’s and La Ventana ROA’s petitions for review
Appeal to the Texas Supreme Court is not a matter of right - there is a two step process. First, an appellant must petition the Supreme Court for review. If the Supreme Court grants the petition for review then there will be full briefings on the issue. Otherwise, the appellate decision stands as is. A petition for review must meet several criteria before the Supreme Court can assume jurisdiction and consider the case. Interim-La Ventana, LLC (”ILV”) and the La Ventana Ranch Owners Association, Inc. (”ROA”) filed their petitions for review on April 18, 2012. Plaintiffs/appellees filed their response on May 17, 2012.
A more complete article regarding the ROA’s and ILV’s petitions is set forth below. Rather than address the misrepresentations and flaws blow-by-blow here, readers are referred to Plaintiffs’/appellees’ responses:
Plaintiffs’ Response to Interim-La Ventana, LLC’s Petition for Review will be available from the Supreme Court here:
Plaintiffs’ Response to Interim-La Ventana LLC’s Petition for Review
Plaintiffs’ Response to La Ventana ROA’s Petition for Review will be available from the Supreme Court here:
Plaintiffs’ Response to La Ventana ROA’s Petition for Review
April 18, 2012: La Ventana ROA and Interim-La Ventana, LLC petition the Texas Supreme Court
La Ventana ROA and developer opt for more misrepresentations, litigation, and delay
Appeal to the Texas Supreme Court is not a matter of right - there is a two step process. First, an appellant must petition the Supreme Court for review. If the Supreme Court grants the petition for review then there will be full briefings on the issue. Otherwise, the appellate decision stands as is. A petition for review must meet several criteria before the Supreme Court can assume jurisdiction and consider the case. Interim-La Ventana, LLC (”ILV”) and the La Ventana Ranch Owners Association, Inc. (”ROA”) filed their petitions for review on April 18, 2012.
Before filing, both the ROA and ILV (appellants) sought to delay the inevitable by requesting an extension of 60 days on top of the 45 days they were permitted. The court limited them to 75 days instead of the 105 they sought. Naturally, both appellants filed their petitions for review on the last possible day. Both petitions had serious flaws.
Counsel for appellant ILV mischaracterized the restrictive covenants, a few facts, and case law.
Counsel for appellant ROA mischaracterized the prior court holdings, case law, underlying facts in the case, Texas statutes, and even the restrictive covenants. By comparison, misrepresentations by ILV’s counsel did not hold a candle to the misrepresentations made by the ROA’s counsel. These misrepresentations cannot even remotely be deemed as unintentional or mistake given the ease with which they are readily controverted by public documents such as published cases, court records, recorded restrictive covenants, the ROA’s witnesses own testimony, minutes of the ROA, written communications from the ROA and declarant, and even the ROA’s prior pleadings. Nothing new about misrepresentations from the ROA and its counsel.
There is the issue of growing liability of the ROA for causing Plaintiffs to incur additional attorney fees in responding to blatant misrepresentations. One might wonder whether counsel for the ROA has any concern about the liability he heaps on his client through his actions. Perhaps he just happens to care a lot more about getting paid to provoke and maintain the litigation no matter what the consequences to his client.
One cannot purchase property in the La Ventana subdivision without being saddled with the liabilities of the La Ventana ROA. Membership is involuntary.
After appellants file their petitions for review, the Plaintiffs/appellees are permitted to file a response to those petitions. Plaintiffs/appellees are likely to file responses to address the flaws and misrepresentations made by the appellants.
Interim-La Ventana, LLC’s Petition for Review can be found here:
Interim-La Ventana LLC’s Petition for Review
La Ventana ROA’s Petition for Review can be found here:
La Ventana ROA’s Petition for Review
A list of e-documents filed in the case is available here:
12-0184 La Ventana Ranch Owners Association, Inc. v. Davis
February 1, 2012: Interim-La Ventana, LLC loses again
Developer denied request for re-hearing
After losing the appeal (see below), counsel for declarant Interim-La Ventana, LLC (”ILV”) requested an en banc re-hearing before the Third Court of Appeals. On February 1, 2012, the appellate court issued an order denying ILV’s request for re-hearing.
The declarant’s/developer’s (ILV’s) request dealt only with the issues of i) whether the declarant should be held liable for Plaintiffs’ attorney fees, and ii) whether additional parties should be held liable for Plaintiffs’ attorney fees. The appellate court has already upheld the finding of declarant liability by the trial court.
The ROA attorney and developer are each expected to file an appeal to the Texas Supreme Court for purposes of delay. Let’s not forget that these entities’ attorneys are paid so long as the litigation continues. Soon the other members of the ROA may find themselves on the hook financially for the actions of these attorneys.
Once the case is remanded back to the trial court, the only issue remaining will be the just and equitable attorney fees due to the Plaintiffs. A jury previously found reasonable attorney fees of $455,000 (including any appeal to the Supreme Court) for Plaintiffs and that the ROA and declarant should be held jointly and severally liable. The court may find i) the declarant, ii) the ROA, or iii) both liable to Plaintiffs and can determine the allocation as between the ROA and the declarant.
The developer has already filed a suit for indemnification against the ROA to recover its losses in the present litigation. If the developer prevails in the indemnification suit, then the ROA members face significant potential liability for litigation that ILV and the ROA attorney have always had the ability to stop. The indemnification litigation is taking place in Travis County - certainly not the proper venue for such litigation but well away from the eyes of the Hays County court which will soon be making a “just and equitable” determination of attorney fees to be paid to Plaintiffs.
There are two classes of members of the ROA corporation: i) the developer; and ii) everyone else. Control of the ROA is in the hands of the developer, but funding for the ROA is exclusively the obligation of everyone else. Which, if any, class do you think the ROA attorney represents?
January 19, 2012: La Ventana ROA loses again
ROA denied request for re-hearing
After losing the appeal (see below), counsel for the La Ventana Ranch Owners Association, Inc. (”ROA”) requested a re-hearing before the Third Court of Appeals. Curiously, he requested to be heard by the same panel of judges that found his arguments without merit the first time. On January 19, 2012, the appellate court issued an order denying the ROA counsel’s request for re-hearing.
The ROA’s re-hearing request dealt with the issue of the validity of Plaintiffs’ variances and other issues. Absent a meritless appeal to the Texas Supreme Court for purposes of delay, the issue of the validity of Plaintiffs’ variances has been resolved for the umpteenth time in favor of the Plaintiffs.
The declarant/developer (Interim-La Ventana, LLC) requested an en banc re-hearing (i.e., before a full panel of judges). The declarant’s request dealt only with the issues of i) whether the declarant should be held liable for Plaintiffs’ attorney fees, and ii) whether additional parties should be held liable for Plaintiffs’ attorney fees. The appellate court previously upheld the finding of declarant liability by the trial court. The court has not yet made a decision regarding the declarant’s re-hearing request.
Once the case is remanded back to the trial court, the only issue remaining will be the just and equitable attorney fees due to the Plaintiffs. A jury previously found reasonable attorney fees of $455,000 (including any appeal to the Supreme Court) for Plaintiffs and that the ROA and declarant should be held jointly and severally liable. The court may find i) the declarant, ii) the ROA, or iii) both liable to Plaintiffs and can determine the allocation as between the ROA and the declarant.
News Flash: Appellate court agrees with homeowners
Sweeping victory for Plaintiff homeowners
On June 3, 2011, the Third Court of Appeals (Austin) issued an opinion that: i) affirms judgments made by the trial court in favor of the homeowners; ii) reverses prior judgments that were not favorable to the homeowners; and iii) remands the case back to the trial court for a determination of attorney fees owed to the homeowners. To summarize the decision by the appellate court:
1. There was no breach of any fiduciary duty
2. All Plaintiffs’ water well variances are valid
3. All Plaintiffs’ propane tank variances are valid
4. The issue of attorney fees owed to Plaintiffs is remanded to the trial court for reconsideration
The ROA board and its attorney impugned the reputations of Sharon Davis and Manley Crider for several years with false claims of “breach of fiduciary duty”. The claim was a desperate, ill-conceived attempt to invalidate all the properly granted approvals. The 3rd Court of Appeals vindicated Sharon and Manley - and all the Plaintiff homeowners to the extent that the trial court had not already done so.
A copy of the opinion is available here: Appellate Decision
La Ventana lawsuit proceeding to appeal
Appellate proceedings were delayed in 2010 while the parties engaged in settlement negotiations. In January 2011, settlement negotiations were terminated. The parties proceeded to appeal. The oral hearing took place before the Third Court of Appeals in Austin on March 9, 2011. The parties are presently awaiting the appellate decision.
This litigation relates to Architectural Committee approvals for residential wells and buried propane tanks. Residents requested and received approvals validly granted by the Architectural Committee for these items. The La Ventana Ranch Owners Association, Inc. (”ROA corporation”) board threatened the requesters over the approvals. The decision to grant the approvals is within the exclusive purview of the Architectural Committee and not the ROA corporation board. Hence the board’s actions provoked the litigation.
These improvements enable homeowners to be independent or less dependent on the La Ventana Water Company, LP and the central gas system. The requests and approvals reflect the individual choices of owners who were never obligated to purchase water or propane from these vendors to begin with. Propane is economically unregulated and the ROA board operates to hold homeowners captive to purchasing propane from the central propane gas system. The actions of the declarant-controlled “homeowners” association might be explained by the declarant’s financial stake in the private water utility and restrictive covenants providing that the declarant may “participate in profits” with the central propane gas system vendor. The ROA corporation (aka “homeowners association”) board is controlled by the declarant, Interim-La Ventana, LLC.
Here is a copy of Plaintiffs’ First Amended Petition.
Further information is available on the Prior Posts page.
Central Gas Systems - Did you know…
The La Ventana subdivision is one of about 30 in the greater Austin area where a central gas propane system is in place. Unlike many of the other subdivisions, the restrictive covenants do not obligate homeowners to purchase gas from the central gas system nor do the restrictive covenants prohibit buried propane tanks. Buried fuel tanks are expressly permitted for half of the La Ventana subdivision and there is no prohibition against buried fuel tanks for the remainder of the La Ventana subdivision. (see, e.g., the Notice of Addition of Land, see also §§3.45, 9.1-9.5 of the Third Amended Declaration of Covenants, Conditions, and Restrictions)
However…..the La Ventana Ranch Owners Association, Inc. (”ROA”) Board is determined to hold the La Ventana homeowners hostage to purchasing propane from the central gas system. The motivation of the “homeowners” association might be gleaned from restrictive covenant language providing that the “declarant may participate in profits” with the central gas vendor. Declarant Interim-La Ventana LLC controls the ROA Board.
The price of propane is economically unregulated. The “homeowners” association board forces homeowners to consume economically unregulated resources from vendors designated/approved by the declarant. You can find out more about litigation over approvals for buried propane tanks and other matters in the La Ventana subdivision by referring to the litigation links.
About the La Ventana Water Utility
Battles between successor declarants over control and ownership of the water utility resulted in two significant lawsuits within the span of two years. Issues relating to legal and financial responsibilities were not addressed. When declarant Interim-La Ventana, LLC filed an application to transfer interests in or of the water utility, a number of homeowners became parties to a legal proceeding relating to that transfer application. That matter is pending before the State Office of Administrative Hearings as SOAH Docket No. 08-582-4353.
Earlier Posts Relating to Litigation
Various court and county clerk filings such as the lis pendens that the La Ventana Ranch Owners Association, Inc. filed to cloud title to homeowners’ properties are available here…
What about Open Meetings, Open Elections, & Open Records in La Ventana?
Board meetings, Architectural Committee meetings, and Finance Committee meetings are conducted in secret from the La Ventana homeowners. Elections are termed “[s]elections” because only nominees “approved” by the incumbent board are permitted to run for office. Although the Bylaws previously provided members and mortgagees a right to access the books and records of the La Ventana Ranch Owners Association, Inc., a Bylaw amendment was made to eliminate any right to inspect the books of account and the minutes of the ROA. Follow these links for more information:
About Closed Meetings…
About Closed Records…
About Closed Elections…
Questions?
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