Southwyck Community Association, Inc.
Pearland, Texas
01/06/2022
Statement on Litigation with Southwyck Section IV
Click here for statement.
UPDATE 05/21/2021
Click here regarding latest update for
Southwyck Sec. IV Homeowners’ Association Inc.
v.
Southwyck Community Assoc. Inc., Cause No. 104559-CV
11/01/2020
LEGAL ISSUE WITH SOUTHWYCK SECTION IV – UPDATE FROM OUR LEGAL COUNCIL
Dear Southwyck Homeowner:
Recently, the Board of Directors of the Southwyck Community Association, Inc. (the “Master Association”) has learned that one or more members of the Board of Directors of Southwyck, Section IV Homeowners Association, Inc. (the “Village Association”) has been providing false and inaccurate information to the community about the relationship between the Master Association and the Section IV Village Association. We hope that this letter will clear up any confusion caused by this misinformation. Here are the facts:
Fact #1: The Declaration of Covenants, Conditions and Restrictions (“DCCRs”), which have applied to your property since Southwyck was developed, establish and create a two-tier governing system consisting of the Master Association and the Village Association. There are three Village associations in Southwyck: The Section I Village Association, the Section V Village Association and the Section IV Village Association.
Fact #2: The Master and Village associations are separate non-profit corporations which have separate functions as outlined in the DCCRs. The developer entity for Southwyck drafted the DCCRs, and any amendment of the DCCRs would require a majority vote of members of both the Master and Village associations, pursuant to an appellate court decision in 2017. That lawsuit was a result of the Section IV Village Association’s Board of Directors attempt to amend the DCCRs without letting all members of the Master Association and Village Association vote on the issue.
Fact #3: The Fourteenth Court of Appeals has affirmed the Master Association's sole and exclusive right to collect maintenance assessments for both the Master and the Village (or “section”) assessments as outlined in the Declaration. Any claim that the Master Association is not authorized to collect assessments on behalf of both the Master association and the Village Association is completely false. A copy of the court of appeals' opinion is available upon request. Once collected by the Master Association, the section assessments are then distributed by the Master Association to the appropriate Village association. This system has been in place since development. A Village Association does not have authority under the DCCRs to directly bill for or collect maintenance assessments independently of the Master Association. Accordingly, any billing or correspondence that you may receive from the Village Association attempting to collect maintenance assessments directly on its own behalf is unauthorized. Currently, the managing agent for the Master Association is Community Management Solutions, Inc. (CMSI). Authorized invoices for maintenance assessments will be sent by CMSI.
Fact #4: The Village Association is charged with deed restriction enforcement, and it is authorized to send bills for deed restriction violations. However, if at any time the Village Association fails to enforce deed restrictions, the Master Association also has the right to do so under the DCCRs.
There is another pending lawsuit filed by the Section IV Village Association against the Master Association, asserting various claims. Should you wish to obtain more information regarding the details and current status of the pending lawsuit, we strongly encourage you to attend the Board of Directors meeting of the Master Association, which is held on the first Thursday of each month. We value you as a member of the Master Association and Master Association Board of Directors wants to be as transparent as possible regarding recent events concerning the Section IV Village Association.
Cordially,
Josh Brockman-Weber, Of Counsel
01/09/2020
Click here to read our lawyer's statement regarding the Section 4 lawsuit.
-----------------------------------------------------------------------------------------------------------------------------
11/14/2019
Southwyck Section IV Homeowner’s Association (“Section IV”) filed suit against Southywck Community Association on September 5, 2019. The lawsuit is a public document and may be reviewed by clicking <Doc>.
Southwyck Community Association has engaged legal counsel and has responded to the lawsuit which is also a public document and may also be reviewed by clicking <Doc>.
At this time, Southwyck Community Association believes that Section IV’s latest claim violates the previous judgment and injunction entered in 2014 against Section IV and its board of directors (then current and future) in the lawsuit entitled Southwyck Community Association, Inc. v. Southwyck, Section IV Homeowners’ Association, Inc., Cause No. 77417, in the 412th Judicial District Court of Brazoria County, which was later affirmed by the 14th District Court of Appeals in Houston.
As this case continues to develop, we will keep you all posted.
-----------------------------------------------------------------------------------------------------------------
02/05/2018
PRESS RELEASE - 01/17/2018 Southwyck CAI has won it's lawsuit against Southwyck Section IV ~Click here~ for the press release
Southwyck Community Association, Inc.
vs.
Southwyck, Section IV Homeowners’ Association, Inc.
(Supplement prepared March 2, 2017)
March 2017 Update:
For the purpose of the appeal and this update, the Sec. IV Village Association is identified as the Appellant and the Southwyck Master Association is identified as the Appellee.
The Sec. IV Village Association filed its Appellant’s Brief on the Merits on January 13, 2017, outlining its reasons for why it believes the trial court committed error in rendering judgment in favor of the Southwyck Master Association at the trial court level. [35] The Southwyck Master Association filed its Appellee’s Brief in Response on February 13, 2017 responding to the Sec IV Village Association brief and outlining its own reasons as to why the trial court did not commit error by rendering judgment in favor of the Southwyck Master Association. [36]
In an appeal, the Appellant may ask the Court of Appeals to grant the parties an opportunity to argue their case orally to the panel of judges who will ultimately decide the appeal. In this case, the Sec. IV Village Association asked for oral argument, stating that oral argument would be helpful to the judges in deciding this case. The Southwyck Master Association opposed oral argument, stating that the parties’ issues could be decided based on each party’s brief. On March 1, 2017, the 14th Court of Appeals issued a statement declining the Sec. IV Village Association’s request for oral argument and setting the briefs for consideration on April 26, 2017. Once the panel of judges convene to consider the briefs, they will write an opinion that will be issued sometime thereafter.
Southwyck Community Association, Inc.
vs.
Southwyck, Section IV Homeowners’ Association, Inc.
(prepared November 2016)
CASE SUMMARY
The Southwyck Community Association, Inc. (“Master Association”) prepared the following statement in an effort to provide all property owners in the Southwyck subdivision with a neutral, non-biased summary of the events that occurred prior to and during the court proceedings entitled Southwyck Community Association, Inc. v. Southwyck, Section IV Homeowners’ Association, Inc., Cause No. 77417, filed in the 412th Judicial District Court of Brazoria County, Texas. At the onset, it is important to understand that the terms “Master Association” and “Village Association” are terms taken directly from the Declarations of Covenants, Conditions and Restrictions (“Declarations”) which are used to identify the entities known as the Southwyck Community Association, Inc. and the Southwyck , Section IV Village Association, respectively.
On or about May 21, 2014, the Master Association became aware of the Southwyck, Section IV Village Association’s (“Sec. IV Village Association’s”) attempts to amend and restate the Declarations so that the Sec. IV Village Association could withdraw itself from the existing Southwyck property owner association structure. The end result of the amendment would leave the Sec. IV Village Association as the sole governing property owners’ association for properties located in Section IV of the Southwyck subdivision concerning all matters including but not limited to architectural control, enforcement, assessments, foreclosure, and lien rights and amenities. The Master Association disagreed with the procedural process that the Sec. IV Village Association was using to achieve its proposed amendment to the Declaration because it was contrary to what the Master Association believed was procedurally required by the Declaration and Section 209.0041(h) of Texas Property Code to achieve such an amendment.
The Master Association’s lawsuit
In order to ensure that the Sec. IV Village Association pursued their attempted amendment strictly according to the Declaration and the Texas Property Code, the Master Association filed a lawsuit in Brazoria County on June 3, 2014, against the Sec. IV Village Association seeking a Temporary Restraining Order, a Temporary Injunction, a Declaratory Judgment, and a Permanent Injunction.[1] Specifically, the Master Association’s lawsuit alleged (i) breach of restrictive covenants (e.g., the Declaration), (ii) breach of contract, (iii) violation of the Texas Property Code, and (iv) requested an award of attorney’s fees. The Sec. IV Village Association filed their response (known as an “answer”) to the Master Association’s lawsuit on June 26, 2014, denying generally all of the Master Association’s allegations.[2] On June 27, 2014, the Court signed a temporary injunction that said the Sec. IV Village Association could not file or attempt to file any document that amended or attempted to amend or restate the Declarations.[3] At that time, Judge Edwin Denman (“Court”) also ordered the case be set for trial on February 9, 2015. See footnote 3.
The Section IV Village Association’s lawsuit
On July 18, 2014, the Sec. IV Village Association filed its own lawsuit against the Master Association also seeking a Temporary Restraining Order, a Temporary Injunction, and a Permanent Injunction asking the Court to prevent the Master Association from enforcing its then new and recently adopted collection and distribution policy for all village association assessments the Master Association collects pursuant the Declaration.[4] The same day, the Sec. IV Village Association also filed a Motion to Disqualify the Master Association’s legal counsel requesting that Daughtry & Jordan, P.C., and specifically Trisha Farine, be disqualified from serving as the Master Association’s legal counsel because she and her Firm had also previously served the Sec. IV Village Association as its legal counsel.[5] The Court granted the Sec. IV Village Association’s motion to disqualify and the Master Association secured outside counsel to represent it in the lawsuit against the Sec. IV Village Association over whether or not the process Sec. IV was using to pursue its amendment of the Declarations was contrary to the Declarations and Section 209.0041(h) of Texas Property Code.
Discovery and the resolution of the Sec. IV Village Association’s lawsuit
Beginning July 2014 and continuing through February 2015, the parties exchanged discovery requests and responses. Also within that time period, the Court conducted a hearing on September 12, 2014, concerning the Sec. IV Village Association’s lawsuit challenging the Master Association’s new policy for collecting and distributing village association assessments. After a hearing on the matter, and after the Sec. IV Village Association filed its amended Application for Temporary and Permanent Injunction on October 2, 2014, and tendered the appropriate filing fees to the Court, the Court entered an order finding that the Master Association’s new collection policy was technically a violation of the Declaration. Accordingly, the Master Association rescinded the new collection policy and returned to the prior method for collecting and distributing village assessments.
The parties’ respective pleas to the jurisdiction
Prior to the Sec. IV Village Association’s filing of its amended Application for Temporary and Permanent Injunction on September 2, 2014, the Master Association filed a Plea to the Jurisdiction, challenging the Defendant’s right to maintain an action seeking affirmative relief without first filing a petition against the Plaintiff.[6] On September 16, 2014 and September 18, 2014, counsel for the Sec. IV Village Association each filed letters with the Court in response to the Plaintiff’s Plea to the Jurisdiction.[7] On December 8, 2014, the Sec. IV Village Association filed its own Plea to the Jurisdiction, challenging the timeliness of the Master Association’s breach of contract and declaratory judgment claims – specifically stating the Master Association’s claims were not ripe for consideration.[8] In other words, the Sec. IV Village Association’s position was that since they had not actually filed anything that actually amended the Declaration, it could not be sued for breach of contract or breach of restrictive covenants nor was it appropriate for the Court to prophylactically or prematurely consider whether such an amendment violated the Declaration. On December 12, 2014, the Master Association filed its response in opposition to the Sec. IV Village Association’s Plea to the Jurisdiction.[9] On December 15, 2014, the Court held an oral hearing on the Sec. IV Village Association’s plea, partially granted the Plea, and dismissed the Master Association’s claims for breach of contract and breach of restrictive covenants. However, the Court also found that the issue of whether or not the Sec. IV Village Association could unilaterally amend the Declarations was ripe enough for consideration and that it needed to be decided.[10] As a result, the Master Association’s lawsuit was narrowed down to a very specific issue: Does the Sec. IV Village Association need the vote of the other members of the Master Association in order for the Sec. IV Village Association to amend the Declarations and withdraw itself from the current Southwyck property owner association structure?
Cross-motions for summary judgment
The question of whether the Sec. IV Village Association needed the vote of the other Master Association members (meaning the other village association members) in order for the Sec. IV Village Association to amend the Declaration involved pure questions of law. In other words, the question of how the Declaration’s language as well as the Texas Property Code language on Declaration amendments should be interpreted was a question for the trial court (e.g., Judge Denman) to decide. In situations like this, Texas legal procedure allows both parties to file their own competing motions for summary judgment describing how each party interprets the law applicable to the question at hand. Hence, the competing motions are commonly referred to as “cross-motions” for summary judgment.
On March 4, 2015, both the Master Association and the Sec. IV Village Association filed their respective cross-motions for summary judgment.[11],[12] Each association also filed responses to each summary judgment motion filed against them, and replies to each of the responses to their respective motions.[13],[14],[15],[16] Judge Denman held a hearing on April 20, 2015, where he heard arguments from both the Master Association’s and Sec. IV Village Association’s legal counsel.
On April 29, 2015, Judge Denman signed an order partially granting the Master Association’s cross-motion for summary judgment on its declaratory judgment claim, meaning that Judge Denman agreed with the Master Association’s interpretation of the Declaration and the Texas Property Code – that the Sec. IV Village Association must also secure the vote of the Master Association members (meaning the members of the other village associations) for any amendment to the Declaration.[17] However, Judge Denman denied the Master Association’s request for attorneys’ fees and costs.
Master Association’s request for attorney’s fees, a permanent injunction, and a final judgment
On June 5, 2015 and on June 11, 2015, respectively, the Master Association filed (i) a motion with the Court asking for an oral hearing on its request for attorney’s fees, and (2) a motion asking the court to issue a permanent injunction against the Sec. IV Village Association and order return of the bond the Master Association paid when it filed its lawsuit in conjunction with the Temporary Injunction.[18],[19] The Master Association also filed a proposed judgment for the Court’s consideration.[20] Shortly thereafter, the Sec. IV Village Association filed its responses to which the Master Association filed replies.[21],[22],[23]
On July 20, 2015, the Court heard oral argument from both associations’ counsel on the Master Association’s motions for attorney’s fees, a permanent injunction and the return of the bond. Ultimately, the Court denied the Master Association’s request for attorney’s fees but granted the Master Association’s request for a permanent injunction against the Sec. IV Village Association and ordered that the bond previously paid by the Master Association in conjunction with its temporary injunction be returned.[24] Following this hearing, the Court asked counsel for both associations to attempt to agree upon the form of the final judgment. The parties were unable to agree on all points concerning the final judgment so each side submitted their own proposed final judgments for consideration.
On September 4, 2015, the Master Association filed its Motion for Signing and Entry of Final Judgment and Request for Oral Hearing.[25] On October 29, 2015, prior to the Court’s consideration or signing of the final judgment, the Sec. IV Village Association filed a Motion for a New Trial.[26] Finally, the Court signed on November 20, 2015, a judgment and partial order denying the Sec. IV Village Association’s motion for new trial.[27]
In the end, the court’s Final Judgment ordered that the Sec. IV Village Association was permanently prevented from recording or attempting to record any document that amends or purports to amend or restate (or both amend and restate) the Declaration unless the amending document is also signed by those persons holding a majority of votes in the Master Association (which means the majority of the members of the other village associations).
The Appeal
The deadlines by which both associations could pursue an appeal of the Court’s decision began when the Court (“Trial Court”) denied the Sec. IV Village Association’s motion for new trial. On February 18, 2016, the Sec. IV Village Association timely filed a Notice of Appeal.[28] The appeal was assigned to the 14th Court of Appeals’ in Houston.[29] However, the Court of Appeals entered an order on March 22, 2016, putting the case temporarily on hold in an effort to allow the associations time to mediate the case.[30] The Master and Sec. IV Village Associations together attended a mediation in early May and later entered into a mediation agreement on May 10, 2016, which detailed the Master and Sec. IV Village Associations’ plan to explore whether the Master Association and all of the Village Associations in the Southwyck Subdivision could be merged into one single association.[31] On May 12, 2016, the Master and Sec. IV Village Associations filed an Agreed Motion to Abate (meaning to delay) pursuant to the Master and Sec. IV Village Associations’ mediation agreement.[32] In granting the associations’ agreed motion, the Court of Appeals ordered that unless it received notice that the case had settled prior to September 23, 2016, the appeal would be placed back on the court’s active docket and the appeal would go forward.[33] During the time the appeal was on hold, representatives from the Master and each Village Association convened in one or more meetings to discuss consolidation. However, a plan for consolidation was not achieved before the Court of Appeals’ September 23, 2016 deadline.
On October 10, 2016, the Sec. IV Village Association filed a letter with the Court of Appeals stating that the Master and Sec. IV Village Associations were not able to resolve the case during the abatement period.[34] Thereafter, the Court notified the Master Association and Sec. IV Village Association on October 11, 2016, that the case had been reinstated and the appeal was again active. Formal briefing to the Court of Appeals by the Master and Sec. IV Village Associations’ respective legal counsel will begin sometime this fall.
As the appeal of the Trial Court’s final judgment developments, the Master Association will continue to update this statement and the its document list to ensure Southwyck property owners have the latest information available.
[1] Plaintiff’s Original Petition for Declaratory Relief, TRO, Temporary and Permanent Injunction
[2] Defendant’s Original Answer
[3] Temporary Injunction
[4] Defendant’s Application for Temporary Restraining Order, Temporary Injunction and Permanent Injunction
[5] Defendant’s Motion to Disqualify Counsel
[6] Plaintiff’s Plea to the Jurisdiction
[7] Letters in response to Plaintiff’s Plea to the Jurisdiction
[8] Defendant’s Plea to the Jurisdiction
[9] Plaintiff’s Response in Opposition to Defendant’s Plea to the Jurisdiction
[10] Oral Hearing Transcript (not available at this time)
[11] Defendant’s Motion for Traditional Summary Judgment
[12] Plaintiff’s Traditional Cross-Motion for Final Summary Judgment
[13] Plaintiff’s Objection and Response to Defendant’s Traditional Motion for Summary Judgment
[14] Defendant’s Response to Plaintiff’s Motion for Summary Judgment
[15] Defendant’s Reply in Support of its Traditional Motion for Summary Judgment
[16] Plaintiff’s Sur-Reply
[17] Partial Order Granting Plaintiff’s Motion for Summary Judgment
[18] Plaintiff’s Motion for Oral Hearing on Attorney’s Fees
[19] Plaintiff’s Motion for Permanent Injunction and Return of Bond
[20] Plaintiff’s Proposed Judgment
[21] Defendant’s Response to Plaintiff’s Motion for Permanent Injunction and Return of Bond
[22] Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for Permanent Injunction and Return of Bond
[23] Defendant’s Sur-Reply to Plaintiff’s Motion for Permanent Injunction and Return of Bond
[24] Order on Request for Permanent Injunction and Return of Bond (not available at this time)
[25] Motion for Signing/Entry of Judgment and Request for Oral Hearing
[26] Motion for New Trial
[27] Partial Order denying Motion for New Trial (not available at this time)
[28] Notice of Appeal (not available at this time)
[29] Letter regarding assignment to docket
[30] Abatement Order
[31] Mediation Agreement
[32] Agreed Motion to Abate
[33] Abatement Order - Agreed Motion to Abate
[34] Appellant’s LetterType your paragraph here.
The link below is to a cloud-based online storage program call “BOX”. You do not have to have a BOX account to view and download the documents available at the link below.
https://thenicholsfirmpllc.app.box.com/s/6wl7k6nxjxjl5yb7knkpa7u27vziv0vq