Joe Burkett, et al.
Vs. Lake Country Property Owners Association, Inc.
To Stop Enforcement of Deed Restrictions
In 2011 the Association made
great progress enforcing the deed restrictions
as they were written. Eighty seven residents came into compliance after they
received a warning notification.
On Sept 6, 2011 a group
refusing to come into compliance was mailed warning letters that a lawsuit
would be filed against them if they failed to cure their violation. Joe
Burkett and 18 other households filed a lawsuit against the Association to
permanently prevent the Lake Country Property Owners Association from
enforcing all deed restrictions in Lake Country Estate & Lake Country
Secret Harbor where the Association is the Dedicator.
The Association was served on
Sept 12, 2011 in the 236th District Court and was ordered to appear for a
Temporary Restraining Order (TRO) hearing. The Association appeared for the
hearing on Sept 23, 2011 and the plaintiffs requested a later date for the
hearing when the Judge could afford the plaintiffs’ more time. With the
assumption that the hearing would be near term, the Attorneys and Judge Lowe
agreed the Association would not sue anyone until the TRO hearing was
Re-scheduling the TRO hearing
became problematic due to the Judges extended travel, plaintiffs’ attorney
scheduling issues, the Association’s attorney’s health issues and the holiday
season. The Association’s attorney advised in Jan 2012 that the best way to
settle the matter was to file a Motion for Summary Judgment (MSJ) in lieu of
the TRO. The Association’s attorney was nearing completion of the
motion in February when he became ill and passed away in April of 2012.
On May 7, 2012 the
Association retained the McDonald – Sanders
law firm to represent the Association. On May 30, 2012 the
Association’s Motion for Summary Judgment (MSJ) was filed with the court. You
can gain a clear understanding of the suit and the Association’s defense by
reading this link to the Motion for Summary Judgment. The hearing took place on
July 19, 2012 and the Association’s attorney did an outstanding job in
arguing the Association’s motion. He presented the very best arguments
possible. Judge Lowe stated he would render his judgment in a week’s time.
Unfortunately, due the Judge’s busy schedule, four months have passed and the
Association is still waiting for a ruling from Judge Lowe. The MSJ makes a
compelling case in favor of the Association and it would be hard to imagine
any court would rule against the Association’s authority to enforce the deed
Given that the Plaintiffs’
claims are without legal basis in Association’s Attorney’s opinion, the
Association filed for the Court to order the Plaintiffs to pay the
Association’s attorney’s fees.
This lawsuit, while
expensive, is necessary to defend the Association’s right to enforce the deed
restrictions to maintain the quality of life in the neighborhood. The Board
of Directors is very grateful for the numerous members who have shown support
for the legal battle with personal contributions to help defray the costs of
these legal proceedings.
With overwhelming support of
the membership, the Association took action at the General Meeting in Feb 2012 by passing an amendment to the
By-laws to prevent future board members from interpreting the deed
restrictions to avoid compliance. The LCPOA By-laws were amended to read “This
Association shall be an organization for the purpose of …… enforcement of
deed restrictions as written in the Lake Country dedication and