One Last Question
We would like to thank Save Plantation for reprinting our letter to the HOA Board that was also posted on our website.
Below you will see our original letter and their response.
Though we don’t agree with many of the suppositions and presentations of our position in their letter, we do understand that there are legitimate differences of opinion regarding our legal positions, and the best way to Preserve our golf course. Ad hominem attacks and calumnies serve no purpose when there are legitimate differences.
In our letter we offered serious opinions from serious people including several lawyers in our neighborhood, one retired Federal Judge and our legal Counsel Mr. David Leroy. We offered no ad hominem anger and will continue to respect other differing positions without rancor or inuendo. We promise our best to continue to try to take the “high road”.
Words like “fomenting” and “fraternizing with the enemy” were never used in our correspondence. To the last point I can only guess what statements they are alluding to in our correspondence. OUR GUESS:
“Mr. Livingston states that their concern is “the inability of certain groups to act impartially due to competing interests”. He implies that the HOA Board is undercutting their efforts and fraternizing with the "enemy".
That statement was made thinking about the collaborative and almost collusive relationship between the Garden City Fathers and The Developer and their previous attorney. That is the reason we copied the Garden City Attorney. The HOA Board was never a consideration when that statement was offered. “Me thinks thou doth protest too much”!
Our suit is straightforward and can be resolved expeditiously under the Rules of Civil Procedure. There is no reason this litigation should cost hundreds of thousands of dollars, as was suggested by an attorney for LB River Club Owner, LLC. Unfortunately, LB River Club refuses to answer a simple question and our current board refuses to ask that same question. That leaves us, as concerned homeowners, as the party that must ask this important question so that we, as homeowners, can all better understand our rights as the proposed development unfolds. The Master Declaration allows us, as homeowners, to have these rights construed. We intend to do so, despite the refusal of our current board.
We promise to withdraw from this situation if the courts rule that the Master Declaration does not apply to the golf course. If the courts rule in our favor will the other side promise that same respect? At this point LB River Club is refusing to provide an answer or even state its position under oath in discovery. If we are being asked to believe LB River Club that its intentions in developing the golf course are purely an attempt to save the course, then why won't its owners answer very simple questions? As the old adage goes, where there is smoke there is fire. Assuming we are victorious, will the HOA Board then come to realize that the Master Declaration Contract does apply to the golf course?
Original Letter from Mr. Livingston
As we move into a more intense portion of this now 3 ½ year negotiation/litigation between the ownership of The River Club and the Preserve Plantation Organization and the current interpleaders on behalf of homeowners---two different groups, I personally and many other homeowners wanted to go on record regarding the promises we have made to the involved parties dating back to a status meeting at Stoel Reeves in March of 2023, until today. We do this in the name of complete transparency and so long as legal backstops imposed by the courts or because of specific limitations placed on us by our attorneys we will continue to be as transparent to the neighbors as possible. We again invite comments from any homeowners on our Web page and as long as they are civil and accurate, we will post them.
Before posting our letter to The HOA Board and subsequent responses from the HOA attorney we wanted to make two important points.
1. In March of 2023 in the presence of all attorneys representing all interests in this matter, I told the agent acting on behalf of ownership, who had previously represented himself as the owner of the golf course that I would not bring suit against him. This was in the context of a letter he had sent me earlier that month asking me to discontinue my opposition to the Special Area Permit (SAP) application of the River Club before Garden City. Despite that, I assured him that going forward I would not jeopardize his standing with his ownership group by initiating such an action. I (WE) have kept that promise. Our case is NOT against him, but the ownership group.
2. I promised on July 4th of 2023 to both General Pierce Roan the then President of the HOA Board and Ms. Andrea Fogleman who was the oncoming HOA President that I (we) would not ever bring an action against the HOA Board. We have kept that promise.
Over the past several months, out of concerns for the ongoing costs of litigation to Plantation Homeowners that the HOA Board could accrue because of litigation, both the objectors and the interpleaders---different groups, offered to enjoin the HOA Board in our action against the River Club owners, pay all the costs of that action and to pay for the indemnification of the Board against possible actions against it in the future. They instead chose to withdraw from the notice to comply and the suit itself.
We purposefully chose not to include the HOA in our case against the River Club ownership group. Included in the filing of recent motions before the Fourth District Court in our case was an affidavit from the President of the Plantation HOA Board. For months both sides have tried to extricate homeowners and the HOA Board from this specific action. In the end they made the decision to insert themselves into the middle of the case. WE DID NOT PLACE THE HOA BOARD INTO THIS LAWSUIT. THEY PLACED THEMSELVES INTO IT. WE KEPT OUR PROMISE TO THE BOARD AND TO THE HOA HOMEOWNERS. They have now encumbered themselves with the costs of representation.
We have asked the Board to represent our interests before the Garden City Fathers regarding the changes to the (SAP) that the Brighton Development will be presenting before the Garden City Fathers on March 31st. Both our group and representatives of the HOA Board have been told that we would not be welcomed, nor should we attend that meeting. We appreciate the HOA Board asking to be present and we hopefully look forward to their stewardship in guarding neighborhood interests before the Garden City P&Z and City Council.
Our concern from the very beginning is that the interests of The Homeowners in the Plantation, the interests of Garden City, and the interests of the ownership of The River Club have occasioned the inability of certain groups to act impartially due to competing interests. This issue in our opinion has been central to the inability of parties to resolve the issue surrounding the golf course “open space”.
We will accept the ruling of the Court regarding the Master Declaration Contract. Win or lose. We only want to be good stewards of what has been handed down to us. The only way we can keep our golf course intact is by having a strong and active HOA Board, that will be willing to act through the AECC and execute the Master Declaration Contract equitably amongst all parties subject to that contract.
Only our side can make the promise of keeping the golf course for future generations. We need the (MDC) and a strong HOA Board to keep that promise.
— John Livingston
Response from Ms. Morris to Letter from Mr. Livingston
As a member of the Board and a person with personal knowledge of these allegations, I want to keep the record straight on these matters and ensure that everyone has all of the actual facts. Contrary to Mr. Livingston’s introductory statements, there is an absolute need to respond when misleading, nonfactual statements are made. He states that the PMA “made the decision to insert themselves into the middle of the case. We did not place the HOA Board into this lawsuit. They placed themselves into it. We kept our promise to the Board and the HOA homeowners. They have now encumbered themselves with the costs of representation.”
The fact is that Mr. Livingston’s group appears to have been trying since January to find an avenue to bring the HOA back into their lawsuit. There have been numerous veiled and explicit threats against the HOA and its Board members for further litigation, including claims for breach of fiduciary duty for the Association’s decision to dismiss the original lawsuit. He’s now seized on a declaration to disparage and threaten the Board, while claiming that he’s kept his promise.
Our attorney has assured me that the submission of the Declaration does not make the Association a party to the litigation and does not revive a case that was otherwise voluntarily dismissed by the Association. The attached Declaration that I executed simply provided information that the parties could have obtained by doing their own legwork through the public records and/or through discovery by requesting the information from the HOA anyway. There are no secrets, nothing inflammatory, no partisan information, and nothing harmful or adversarial to either side. It simply stated the number of voting members in the Association.
Here are the facts:
On March 20, our attorney was contacted by the River Club’s attorney requesting an affidavit as to the number of lots in our HOA. While it may seem more prudent to have referred this request to AMI, on February 27 I had a requested an official lot count from Michelle Stanovich and am still waiting for those results. The reason our lot count was in question was that the previous board represented the number both as 257 and 254 while AMI’s homeowners list showed only 252. The higher number included 3 lots (referred to as Glass Creek) which are not yet titled or assessed membership dues. The lower number is the result of a 1990 Restrictive Covenant which transferred two PMA lots to the golf course in exchange for providing irrigation water to our subdivision. This agreement specifically exempted these two lots from assessment. Whether these two lots should have remained in the lot count, the PMA has for decades used 254 to determine a 45% quorum and a 66% majority amendment vote. Based on the above considerations that only the PMA had knowledge of, I signed the attached declaration. (The HOA documents the attorneys submitted to support it are also attached.)
As to Mr. Livingston’s contention that the PMA has “now encumbered themselves with the cost of representation”, the plaintiffs have continued to cost homeowners money since they decided to intervene in the lawsuit that the previous Board chose to file. That amount is $5K and climbing just to respond to Mr. Livingston’s and their attorneys’ requests. Their “offer to enjoin the HOA” in their action and to cover all the legal and indemnification costs if the Board agreed to continue the lawsuit was disingenuous at best. Despite representations that the plaintiffs would cover all expenses, in February Preserve Plantation solicited donations in a mailing to all homeowners and continues to ask for donations on its website.
Mr. Livingston noted that they are moving into the “more intense portion of the litigation”. What he didn’t disclose is that LB River Club has filed a motion to dismiss the matter. He also did not disclose the fact that on March 26, their attorney elevated the legal costs by filing the first set of discovery to LB River Club. No doubt the River Club will respond with its own set of discovery, which will inevitably be significant. The Board of Directors of the Association has no control over these actions and no involvement in them. The possibility of exorbitant expenses was a major reason that the Board chose to dismiss the lawsuit in the first place.
Let me remind you of a couple of statements Mario Deversa, our D&O insurance adjuster, said about these potential costs:
The plaintiffs’ lawsuit could easily cost $500k. The longer they continue the more it will cost.
If the plaintiffs sue the PMA, they are essentially suing themselves as well as every homeowner. Mr. Deversa termed this as “death by a thousand cuts”.
Not only will PMA’s premiums increase upon policy renewal, a decision adverse to the plaintiffs could result in the award of the defendant’s legal fees from two very expensive law firms who are more than equipped to fight this to the finish.
Mr. Livingston states that their concern is “the inability of certain groups to act impartially due to competing interests”. He implies that the HOA Board is undercutting their efforts and fraternizing with the "enemy". This is a group of only 8 homeowners, six of whom are former board members, who are attempting to circumvent the will of a majority of the homeowners who are all bound by the Master Declaration in the same manner as the intervenors.
Mr. Livingston also implies we are not a strong and active HOA Board. Nothing could be further from the truth. This Board pledged to respect the will of the many and we have done just that. There is no reason to treat the owner of the golf course as the enemy that he has not proven himself to be. Only 31 homeowners voted to continue the lawsuit; 80% of PMA’s survey respondents voted for its withdrawal. Preserve Plantation claims to represent “many” homeowners, objectors, and/or intervenors. What are their names? Where do they live? How many are one in the same?
The most false statement Mr. Livingston makes is that “only our side can make the promise of keeping the golf course for future generations”. How will that work when the golf course owner tires of their tactics and sells to a developer that will build homes on every acre? Their stated goal 3 ½ years ago was to “win a seat at the table”. This Board has that seat and it has proven productive and effective. Why is that seat no longer enough?
They bemoan the divisiveness and ill-will that is poisoning the neighborhood yet they foment it with their repeated attempts to draw the PMA into their cause while becoming personal in the process and destroying any possibility of working cooperatively with anyone.
I pledge that as long as I am a member of this board, I will remain well-informed, engaged, and laser-focused on our HOA’s responsibilities. And, whenever necessary, I will also counter statements like these with actual facts. Please feel free to share this information with those who need to be informed.
Virginia