TRPOA - Lawsuit Info

LAWSUIT UPDATE -- by Rudy Cano, POATRI Corporate Counsel

On February 25, 2008, the Plaintiffs voluntarily filed a Joint Motion for Non-suit (click link to read the motion)of Cause No. 39329; Frank Truksa, et al. v. Tom Durham, et al.; in the 412th Judicial District Court of Brazoria County, Texas. A motion for non-suit is a motion whereby the party filing the motion asks the court to dismiss the lawsuit. The Order dismissing the lawsuit in its entirety was signed by Judge Denman on February 29, 2008 and the lawsuit is over.

The Plaintiffs filed for non-suit, according to their motion, because they “…no longer wish to prosecute this suit because they believe that further prosecution of this lawsuit would not be in the best interests of Plaintiffs.” [Emphasis added] While the Plaintiffs exercised their legal right to dismiss the lawsuit, the stated reason for doing so indicates the Plaintiffs dismissed the lawsuit to serve their own interests, and not those of POATRI and Terlingua Ranch.

At the time of the non-suit, a proposed agreed order was before all the attorneys in the case. All attorneys, except the attorney for the Plaintiff Andrew Guill, had already signed the order. The proposed order would have required POATRI to submit the negotiated Terlingua Ranch Maintenance Association agreement (“TRMA”) to a vote of the Membership for approval or disapproval. However, since not all the parties/attorneys agreed to the proposed order, a court supervised election could not be held.

Rather than have the negotiated TRMA be put to a vote of the membership pursuant to the court’s order, the Plaintiffs apparently chose to non-suit/dismiss the lawsuit because allowing the members to vote on the negotiated TRMA in an election subject to the court’s supervision “…would not be in the best interests of Plaintiffs.”

The lawsuit is over. The TRMA and Bylaws which were proposed as part of the settlement are not in effect. The negotiated TRMA and Bylaws, products of countless hours of negotiation and review by multiple attorneys, had one objective: to update the TRMA and Bylaws for the benefit of all POATRI members. The exhaustive process necessary to tailor these documents was undertaken by the primary parties, negotiating in good faith, to allow POATRI to survive and prosper, while at the same time addressing the issues and concerns of both sides of the lawsuit.

Since the proposed settlement fell through, the Board of Directors (“Board”) has voted to put the negotiated TRMA before the POATRI Membership for a vote. The Board has also, following extensive review and discussion at the April 2008 meetings, proposed that POATRI maintain a flat fee per owner annual assessment. Since the matter is no longer subject to the court’s jurisdiction, because there is no lawsuit, this process of reviewing and, when prudent, revising the negotiated TRMA is exactly what the Directors are required to do in order to fulfill their collective duties to POATRI.

Except for the annual assessment structure, no substantive changes have been made to the negotiated TRMA to be voted on by the membership. The membership will now have the opportunity to vote to approve the negotiated TRMA pursuant to the Board’s action, since the opportunity to have the election conducted under the court’s supervision was denied when the Plaintiffs chose to non-suit the lawsuit. Under either scenario, it is the Membership which will ultimately decide this most important issue and the future of Terlingua Ranch.

LAWSUIT UPDATE ANNOUCEMENT BY THE BOARD OF DIRECTORS

MARCH 7, 2008

On February 29, 2008 Judge Denman signed an Order of Non-Suit* dismissing the current lawsuit. The two remaining plaintiffs filed a Motion for Non-Suit on February 26, 2008 requesting that the judge sign the order of dismissal. Accordingly, the Truksa et al v. Durham, POATRI et al lawsuit has been dismissed.

At the time the plaintiffs asked the judge to dismiss the lawsuit, there was a proposed settlement pending before the court. Additionally, as was reported in the “Lawsuit Update” article in the most recent newsletter, an agreed order to allow the property owners to vote on the future of Terlingua Ranch was also pending. The proposed ratification of the amended Terlingua Ranch Maintenance Association agreement by the membership was agreed upon by attorneys for all individual defendants, POATRI and plaintiff Frank Truksa. Plaintiff Andrew Guill’s attorney did not sign the membership ratification order.

Apparently, rather than allow the proposed settlement to move forward for a vote of the membership under the supervision of the court, the plaintiffs elected to simply dismiss the lawsuit rather than pursue the allegations upon which they had originally filed their legal action.

While the end of the lawsuit is a positive step for Terlingua Ranch, much work remains to be done to continue our progress in securing the future of the Association. In anticipation of the April quarterly meeting, the members of the Board are diligently working on proposals which are aimed toward incorporating the positive aspects of the proposed settlement into the future of the Ranch and of POATRI. The Board urges all members to attend the April meeting to participate in the discussions regarding these important issues.

* Definition of Non-Suit - n.
A judgment given against a plaintiff who neglects to prosecute, or who fails to show a legal cause of action or to bring sufficient evidence. (Random House Unabridged Dictionary, Copyright © 1997, by Random House, Inc.)

POATRI was added as a nominal defendant to this suit on March 20, 2007. The amended petition states: “POATRI has been joined in this suit only for the purpose of binding the Corporation to the results of this suit. The Plaintiffs who are members in good standing bring this action on behalf of the Corporation. Such action is necessary because the defendants are majority members of the board and are in control of the Corporation.”