On July 24, the lawyers for a local developer updated their complaint against the 2021 Architectural Control Committee of the Windermere Oaks Property Owners Association. The developer is Hunter Family Real Estate II, Ltd., which does business here in Windermere as Chris Elder Homes. You can view the updated lawsuit here.
The lawsuit says this: The 2021 ACC Committee of Mark Carpenter, Paul Hischar, Danny Flunker and Micki Bertino didn’t follow the rules — contractual rules — in administering the restrictive covenants. They failed to approve or deny house plans within the 45-day period required of the ACC. That is a breach of their duty to property owners, the lawsuit says
In this case, their flim-flam responses to Elder resulted in building delays which cost the developer. If a court finds against the POA, all homeowners in Windermere may be on the hook for damages. As the lawsuit says:
“The wrongful actions by the ACC, approved by the HOA’s Board of Directors, resulted in [Hunter Family Real Estate] sustaining losses resulting from lower sales prices per square foot, higher material and labor costs, and damages to Plaintiff’s liquidity.”
The 33rd District Court of Burnet County is being asked to make decision about Texas Property Code which says:
“An exercise of discretionary authority by a property owners’ association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious or discriminatory.”
The Hunter plaintiffs contend that some of their building plans were held up by the ACC due to the ACC’s dissatisfaction with progress on their other home sites. That linkage was not within their authority. Linking one thing to another — capriciously — is not part of the ACC’s duty. And the Board at the time either affirmed those actions or neglected to conduct oversight of those actions.
The discovery and deposition process for this lawsuit has been underway for some time. It will be interesting to see the POA’s response, which should be submitted sometime soon.
But since the 2020 Board let the website collapse and washed away years of history, let’s do a recap of the players that have been involved.
The POA Board in 2021 was Julie Nuemann, Charlene Friedsam, Marsha Westerman, Greg Szumski, Janet Crow and Michele Christenson. They brought an anti-property rights covenant change regarding home rentals to the voters in the 2022 election.
That anti-property rights initiative was rejected handily by WOPOA members in February 2022. A mostly new Board was elected in February 2022 and, at that annual meeting, members were first notified about the Hunter Family Real Estate lawsuit that had just been filed.
The 2022 Board was comprised of George Pareja, Joe Cohen, Justin Love, Olga Bashkatova, Janet Crow, and Marcus Vidrine. They removed several former ACC members including Danny Flunker and Mark Carpenter. Bertino and Hischar resigned from the ACC. Again, I’m recounting from memory and a few documents here and there because there is no website record of their time in office. There were two very short POA Board meetings where the Directors removed Carpenter and then Flunker, if I recall correctly.
Then, in February 2023, none of the 2022 Board members ran for office again. Who can blame them (Pareja, Cohen, Love, etc)? They were being asked to do damage control on a lawsuit that they did not create. In other words, they were cleaning up the mess of the Neumann Board.
So in February 2023, POA members then had no choice but to elect the only people that ran, including two members of the 2021 ACC group that are being sued. They are our current Board: Paul Hischar, president; Allen Hicks, Vice President; Marda Waters, Treasurer; Oleh Kulas, Secretary; Mark Carpenter and Tom Nelson. And now Danny Flunker is the head of the ACC.
At least they have rebuilt a website for the POA. That’ s been good for Windermere Oaks.
Newcomers reading this post should understand that Chris Elder has been building homes in Windermere Oaks since 2015. The Architectural Control Committees have been compromised of many different people over the years, and Elder was able to work constructively with them to build the nice homes here today. Sure, there were bumps here and there, but they were ironed out. I first joined the POA Board in 2016, and I served as a Board liaison to the ACC committee. From 2016-2020 in my time on the POA Board, Chris Elder was responsive to our phone calls about his contractors’ noise, trash, working hours, etc. He had no immediate control of their everyday actions, but once the nuisances were brought to Elders’ attention, he fixed them.
If the Hunter Family group is correct, the 2021 ACC — Carpenter, Hischar, Flunker, Bertino — somehow thought it right to create powers they did not possess.
Stay tuned for more updates on the lawsuit when they come available on the District Court’s website.