Windermere Oaks residents heard brief and conflicting comments about the long‑running developer lawsuit during the October 15 board meeting.
Some Windermere Oaks Property Owner Association (WOPOA) board members described the case as “frivolous,” while others blamed prior boards or ACC members for causing it.
The actual court filings tell a much more serious—and much more consequential—story for the community. As background, read here.
With a summary judgment hearing set for November 13 and a bench trial scheduled for December 7, the lawsuit now enters a decisive phase. If the WOPOA loses, the financial consequences could be significant for residents, especially given the association’s current lack of reserve funds. It is unclear whether insurance will cover the loss, and it is interesting that the WOPOA is thinking about suing its former management company through their Errors & Omissions policy. Do they already know the writing on the wall doesn’t look good for Windermere Oaks?
What the lawsuit is actually about
The plaintiffs—Hunter Family Real Estate II and EM Joint Venture—are developers who have built multiple homes in Windermere Oaks, some beginning in 2016 when I first volunteered to serve on the WOPOA Board.
Around the neighborhood, this company is referred to as the Elder group because Chris Elder is the builder of many of the nice homes that have been built here over the last 10 years. Their lawsuit alleges that the 2021 WOPOA’s Architectural Control Committee (ACC) :
- Missed the 45‑day deadline to approve or deny building plans for three separate homes (330 Kendall, 415 Bedford, 132 Bedford).
- Issued denials after the deadline, even though the restrictive covenants say late responses result in automatic “deemed approval.”
- Refused to mark the plans “Accepted,” as the covenants require, and instead sent letters telling the builder:“You are not authorized to proceed.” “Do not go forward.” “Unapproved modifications must be removed immediately.”
- Threatened enforcement action if construction began.
- Denied one application because other Elder projects were not finished—a reason not found anywhere in the covenants.
- Never set a Chapter 209 appeal hearing, despite the builder’s written request.
The Elder plaintiffs argue these actions, back in 2021, caused months of delay, pushing construction and sales into a declining real‑estate market. Their expert disclosures estimate over $573,000 in damages, and earlier petitions sought over $1 million.
(For all the blame-gamers out there, please note that the community had replaced me in February 2020 by election, with Julie Naumann and others, so none of this lawsuit had anything to do with events and actions while I was on the Board.)
Who was on the ACC at the time?
According to the Fifth Amended Petition, the 2021 ACC consisted of:
- Mark Carpenter
- Paul Hischar
- Danny Flunker
- Micki Bertino
This is notable because Danny Flunker’s October 15 video shows criticism of Mark Carpenter for the lawsuit. Both Flunker and Carpenter served on the ACC during the period when the alleged covenant breaches occurred. That is part of the ongoing Con — the ConMan is never to blame for anything. Could this be the cause of ongoing and public acrimony between the two? Be sure to read my previous post about how the ConMan has been going after the Carpenters with his usual attacks.
What the HOA argues in its defense
In its Amended Traditional Motion for Partial Summary Judgment, the HOA claims:
- The ACC’s failure to act within 45 days resulted in automatic deemed approval, so the WOPOA did not breach the covenants.
- The developer should have simply proceeded with construction, despite WOPOA letters telling them not to. (As an aside, and contrary to what the WOPOA attorneys say, be sure to see the actual letters in Chris Elder’s deposition, available by download below. It’s pretty clear that that the WOPOA, through the management company was telling Elder they would require demolition of any construction. Elder rightly characterized that as ‘insane stuff.’ )
- The damages are “unforeseeable consequential damages” because the HOA could not have known the homes would sell years later at lower prices.
However, the plaintiffs’ response points out:
- The HOA explicitly told the builder not to proceed, warned of demolition, and refused to acknowledge deemed approval.
- The HOA never pleaded failure to mitigate, so it cannot argue the builder should have built anyway.
- The covenants allow any owner within Windermere Oaks, not just the POA, to sue for damages resulting from a breach—meaning that “deemed” approval is not the only remedy.
- The ACC denied plans on unauthorized grounds, which itself constitutes a breach of contract.
Be sure to read Chris Elder’s deposition testimony and see his exhibits about email communications with the WOPOA’s management company:
Why homeowners should pay attention
If the WOPOA loses in coming weeks, the consequences could include:
1. Damages and Prejudgment Interest
The plaintiffs seek hundreds of thousands of dollars in damages. Prejudgment interest in Texas can add tens of thousands more.
2. Attorney’s Fees
Both the restrictive covenants and Texas Property Code §5.006 allow the prevailing party to recover attorney’s fees. This case has been litigated since January 2022, meaning fees could be substantial.
3. HOA Financial Condition
Comments at the October 15 Board meeting show that WOPOA:
- Has no reserve funds, due to the $127,000 accounting error.
- Is operating month‑to‑month, sometimes needing loans to pay bills.
- Is raising assessments to rebuild reserves.
A judgment against the WOPOA could require:
- A special assessment,
- A loan,
- Or both.
We as homeowners will pay for all of it, one way or another, unless the POA’s insurance company does. I don’t know about that.
4. Insurance Uncertainty
The board mentioned possibly filing an E&O claim against the management company, but no outcome has been reported.
If insurance does not cover the lawsuit, the WOPOA—and therefore homeowners—bear the full cost. Again, it is unknown whether the WOPOA’s Directors and Officers insurance covers that. So far they have been handling the attorney costs, which surely have run to $200-300,000 already.
Upcoming Court Dates
- November 13, 2026 – Hearing on WOPOA’s Motion for Partial Summary Judgment
- December 7, 2026 – Bench Trial scheduled if the case is not resolved at summary judgment
These dates will determine whether the case ends quickly or proceeds to a full trial.
Comments and Lessons Learned
Despite Mark Carpenter charactizing the lawsuit as “frivolous,” it is not.
Elder’s financial backers have made a detailed claim that the ACC and WOPOA violated the restrictive covenants, issued late and improper denials, and blocked construction—actions that could expose the HOA to significant financial liability.
With the association already struggling financially, the outcome of the November 13 hearing and the December 7 trial could directly affect every homeowner’s wallet.
Finally, as a side note, when I was on the Board in 2018 and 2019, the ConMan applied to be on the Architectural Control Committee. I rejected his offer.
Having already witnessed his disastrous attempt to remove a gangplank to the marinas in 2016, to leverage his negotiations over architectural control over them, knew better. In fact, I rejected his offer to serve on any committee in the community.
If only the 2020 Board, the one which the ConMan and others installed through proxy voting, had not installed him then. The ConMan should never be trusted to properly execute any position of power in this community.