Motion for Plea in Abatement in CHARLES "CHUCK" ZUBARIK vs. THE VALLEY VIEW PARK ESTATES HOMEOWNERS' ASSOCIATION, INC.| Trellis.Law

On May 28, 2021 a 10. PLEA TO JURISDICTION ETC, FILED 6-28-2021 - INSTRUMENTS was filed involving a dispute between Zubarik, Charles "Chuck", and The Valley View Park Estates Homeowners' Association, Inc., for OTHER PERSONAL INJURY in the District Court of Dallas County.

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FILED
6/28/2021 9:55 AM
JOHN F. WARREN
DC-21-09102 COUNTY CLERK
DALLAS COUNTY

CAUSE NO. CC-21-02080-C

CHARLES “CHUCK” ZUBARIK, IN THE COUNY COURT

Plaintiff,

v. AT LAW NO. 3

THE VALLEY VIEW PARK ESTATES
HOMEOWNERS’ ASSOCIATION, INC.

Defendant. DALLAS COUNTY, TEXAS

DEFENDANT THE VALLEY VIEW PARK ESTATES HOMEOWNERS’
ASSOCIATION, INC.’S PLEA TO THE JURISDICTION, ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES, SPECIFIC DENIALS, SPECIAL EXCEPTIONS AND
MOTION TO DISMISS

COMES NOW, Defendant The Valley View Park Estates Homeowners’ Association, Inc.

(“HOA”) or (“Defendant”), and files this Plea to the Jurisdiction, Original Answer, Affirmative

Defenses, Specific Denials, Special Exceptions and Motion to Dismiss and would show as follows:

I PLEA TO THE JURISDICTION

The HOA asserts its Plea to the Jurisdiction on the following grounds:

1.1 Pursuant to the Texas Business Organizations Code, this Court lacks subject-matter

jurisdiction for Plaintiff's Application for Appointment of a Receiver. Defendant is a nonprofit

corporation property owners association.' Only a district court in the county in which the registered

office or principal place of business of a domestic entity is located has jurisdiction to appoint a

receiver of a domestic entity for the purpose of rehabilitating the entities as provided by Section

11.404. See TEx. Bus. ORG. CODE § 11.402(b)(1).

1.2 Plaintiff asserts claims against the HOA and have no standing to assert such claims.

' See Plaintiff's Original Petition, at J 2.

2.1 Pursuant to TEXAS RULE OF CIVIL PROCEDURE 92, Defendant enters a general denial

of matters pleaded by Plaintiffs claims herein and requests that the Court require Plaintiff to prove

the charges and allegations by a preponderance of the evidence as required by the Constitution and

laws of the State of Texas.

Ill. AFFIRMATIVE DEFENSES

3.1 Pleading further, and in the alternative, and subject to the preceding Paragraphs

herein, without waiving same, Defendant alleges that, Plaintiff's claims are barred, in whole or in

part, because Plaintiff has failed to state a claim upon which relief can be granted.

3.2 Pleading further, and in the alternative, and subject to the preceding Paragraphs

herein, without waiving same, Defendant affirmatively asserts the defense of contractual estoppel

and equitable estoppel.

3.3 Pleading further, and in the alternative, and subject to the preceding Paragraphs

herein, without waiving same, Defendant affirmatively asserts the defense of res judicata.

3.4 Pleading further, and in the alternative, and subject to the preceding Paragraphs

herein, without waiving same, Defendant affirmative asserts the defense of volunteer immunity.

Iv. VERIFIED DENIALS

41 Defendant specifically denies, as a condition precedent, that the HOA’s Board of

Directors (“Board”) are directly impeded from proceeding on matters that affect the health, safety

and welfare of the community. The Board appointed the Litigation Committee who is charged with

complete control of all litigation matters in order to avoid potential conflicts of interest. See

Declaration of Ida Caruso (“Caruso Decl.”), at §§| 5-7; see also Ex. 1, Third Amended Litigation

Committee Appointment.

DEFENDANT THE VALLEY VIEW PARK ESTATES HOMEOWNERS’ ASSOCIATION, INC.’S
PLEA TO THE JURISDICTION, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES,
SPECIAL EXCEPTIONS AND MOTION TO DISMISS, PAGE 2 OF 12
42 Defendant specifically denies further that the Board is legally unable to proceed

with its routine business or able to properly care for or attend to the HOA’s financial obligations

to the community. See id.

43 Defendant specifically denies further that the Litigation Committee is not

composed of less than two non-conflicted Board members as required by Chapter 22 of the Texas

Business Organizations Code. See id.

44 Defendant specifically denies further that the Litigation Committee is improperly

constituted or otherwise violated Texas Business Organizations Code Section 22.218 and the HOA

Bylaws. See Caruso Decl., at § 5; see also Ex. 2, HOA Bylaws, at Section 3.6; see also TEX. BUS.

ORG. CODE § 22.218.

4.5 Defendant specifically denies further that the Board has the authority to count votes

of the Members of the HOA and are unable to become enriched as a result. See Ex. 2, HOA Bylaws,

Section 2.13(b) (“tabulation of any vote of the Members shall be conducted by an independent

third party”).

4.6 Defendant specifically denies further that the appointment to a Board vacancy was

improper or otherwise violated Texas Business Organizations Code and the HOA Bylaws. See id,

at Section 3.8; see also TEX. BUS. ORG. CODE § 22.212.

47 Defendant specifically denies further that the Board owes Plaintiff a fiduciary duty

as the HOA is a nonprofit corporation and a property owners’ association. See Caruso Decl., at J

4.8 Defendant specifically denies further that the governing persons of the entity are

deadlocked in the management of the entity’s affairs, the owners or members of the entity are

DEFENDANT THE VALLEY VIEW PARK ESTATES HOMEOWNERS’ ASSOCIATION, INC.’S
PLEA TO THE JURISDICTION, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES,
SPECIAL EXCEPTIONS AND MOTION TO DISMISS, PAGE 3 OF 12
unable to break the deadlock, and irreparable injury to the entity is being suffered or is threatened

because of the deadlock. See Caruso Decl., at ff 8-9; see also Ex 2, at Sections 2.3, 2.7-2.9.

49 Defendant specifically denies that the actions of the HOA Board are illegal,

oppressive, or fraudulent. The HOA Board seeks and implements the information, advice,

guidance, and recommendations of experts, professionals, and Members for HOA business in order

to comply with all standards, codes, and laws, as applicable, and regularly reviews same in order

to maintain said compliance. See Caruso Decl., at § 10.

4.10 Defendant specifically denies further that the property of the HOA is being

misapplied or wasted and further denies Plaintiff has the requisite knowledge to assert same as it

is verifiable that Plaintiff lacks said information. See Caruso Decl, at § 11; see also TEX. PROP.

Cope§ 209.005.

Vv. SPECIAL EXCEPTIONS

Given the above-referenced factually impossible and legally inconsistent allegations,

Defendant is without sufficient notice or information as to the factual or legal bases of Plaintiff's

claims and request for Declaratory Judgment relief upon same, to respond, such that Defendant

can properly defend as to those allegations.

5.1 Defendant therefore specially excepts to the referenced claim for Breach of

Fiduciary Duty because it is not a viable cause of action against the HOA, a nonprofit corporation.”

The HOA does not owe its Members, such as Plaintiff, a fiduciary duty.* Directors of nonprofit

corporations only owe a duty of ordinary care. See TEX. BUS. ORG. CODE § 22.221. To further

distinguish the duty of a director of a nonprofit corporation, the Texas Business Organizations

? See Plaintiff's Original Petition, at {2 and 6.
3 See id., at $12.

DEFENDANT THE VALLEY VIEW PARK ESTATES HOMEOWNERS’ ASSOCIATION, INC.’S
PLEA TO THE JURISDICTION, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES,
SPECIAL EXCEPTIONS AND MOTION TO DISMISS, PAGE 4 OF 12
Code expressly stated directors of a nonprofit corporation do not owe the same duties of a trustee

to a trust; in other words, a fiduciary duty. See TEX. BUS. ORG. CODE § 22.223; see also Meyer v.

Cathey, 167 S.W.3d 327, 331 (Tex. 2005) (a fiduciary duties arises between a trustee and a trust).

Plaintiff is unable to cure this defect because the HOA cannot owe a fiduciary duty. Plaintiffs

cause of action for Breach of Fiduciary Duty is not viable, incurable and must be dismissed

accordingly.

S12 Defendant further specially excepts to the claim for Declaratory Judgment because

Plaintiff's allegations are inadequate and unviable as a cause of action. Declaratory Judgment is

not available to seek a judicial interpretation of an earlier judgment. Samedan Oil Corp. v. Louis

Dreyfus Nat. Gas Corp., 52 S.W.3d 788, 792 (Tex. App. Eastland 2001, pet. denied). Plaintiff

seeks a judicial interpretation and declaration of an alternative dispute resolution decision that has

already concluded.’ An alternative dispute resolution decision has the same effect as a judgment

of a court of last resort, and a court reviewing the decision may not substitute its judgment merely

because it would have reached a different decision. CVN Group v. Delgado, 95 S.W.3d 234, 238

(Tex. 2002). Plaintiff conceded he voluntarily submitted to the JAMS Dispute Resolution

mechanism pursuant to his recount request governed by the Texas Property Code. See Tex. Prop.

Code § 209.0057. Plaintiff challenged that the amendment was not passed with the requisite 2/3

majority pursuant to Section 209.004 1(h). See TEX. PROP. CODE § 209.0041 (h). Plaintiff conceded

that the JAMS Dispute Resolution Recount Administrator made a decision that the challenged

amendment did not have the requisite 2/3 vote necessary to pass due to 15 votes in favor being

defective in form. This decision renders the challenged amendment unenforceable.* There is no

4 See Plaintiffs Original Petition, at {§] 13-15.
5 See Plaintiff's Original Petition, Ex. 1.

DEFENDANT THE VALLEY VIEW PARK ESTATES HOMEOWNERS’ ASSOCIATION, INC.’S
PLEA TO THE JURISDICTION, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES,
SPECIAL EXCEPTIONS AND MOTION TO DISMISS, PAGE 5 OF 12
longer a justiciable controversy as a result and declaratory judgment is not available now. See

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). Plaintiff's cause of action for

Declaratory Judgment is not viable, incurable and must be dismissed accordingly.

5) Defendant further specially excepts to the claim for Declaratory Judgment because

there is no legal authority, and Plaintiff cites to none, for the Court to remove or strike records

from the Dallas County Property Records or to order any party to do so. In this context, Declaratory

Judgment is only an appropriate remedy to seek protection from a dedicatory instrument that is

alleged to be unenforceable. See e.g. W. Hills Harbor Owners Ass’n v. Baker, 516 S.W.3d 215,

221 (Tex. App.—El Paso 2017, no pet.). Plaintiff does not make that claim here and has shown

the Court that the amendment is already determined to be unenforceable. Plaintiff's request for

declaratory judgment is— at best- an advisory opinion of a future dispute which is not permitted

under the Uniform Declaratory Judgment Act. See Paulsen v. Texas Equal Access to Justice

Found., 23 S.W.3d 42, 47 (Tex. App. — Austin 1999, pet. denied). Plaintiff's cause of action for

Declaratory Judgment is not viable, incurable and must be dismissed accordingly.

5.4 Defendant further specially excepts to the referenced claim for Application of

Appointment of a Receiver because Plaintiff provided inadequate allegations. Plaintiff omitted and

failed to identify the condition that exists for the Court to have jurisdiction over the HOA to appoint

a receiver pursuant to Texas Business Organizations Code. See TEX. BUS. ORG. CODE §

11.404(a)(1). Further, Plaintiff omitted and failed to allege facts to identify all the requisite

circumstances that must exist simultaneously to authorize the Court to appoint a receiver pursuant

to Texas Business Organizations Code Section 11.404(b). See TEx. BUS. ORG. CODE§ 11.404(b).

Defendant does not know as to which basis Plaintiff seeks the appointment of a receiver. Moreover,

Plaintiff's cause of action is unviable because Plaintiff correctly pointed out that the HOA is a

DEFENDANT THE VALLEY VIEW PARK ESTATES HOMEOWNERS’ ASSOCIATION, INC.’S
PLEA TO THE JURISDICTION, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES,
SPECIAL EXCEPTIONS AND MOTION TO DISMISS, PAGE 6 OF 12
domestic entity.® Only a district court in the county where the entity is located has jurisdiction to

appoint a receiver. See TEX. BUS. ORG. CODE § 11.402(b).

5.5 Without Plaintiff pleading such operative notice facts and only provided inadequate

allegations, Defendant is unable to sufficiently understand or discern the alleged requisite

conditions and circumstances present to support the appointment of a receiver. Plaintiff brings

unsupported and unsubstantiated claims to give rise to the appointment of a receiver and thus

Defendant is unable to defend against these untethered allegations. Even if Plaintiff provided

additional allegations, Plaintiff's cause of action cannot be sufficiently cured to be a viable claim.

Plaintiff's cause of action for Application for Appointment of a Receiver is inadequate, unviable,

incurable and must be dismissed accordingly.

5.6 Defendant further specially excepts to Plaintiff's paragraph 17 and the improper

incorporation by reference to the Amended and Restated Bylaws of Valley View Park Estates

Homeowners’ Association. This exhibit was not attached to Plaintiff's Original Petition.

Defendant is unable to defend against allegations based on an exhibit not attached and deprives

Defendant of the fair notice sufficient to ascertain from the pleading the nature and basic issue of

the controversy.

5.7 Defendant further specially excepts to Plaintiff's paragraph 26 because the amount

of relief sought is without specificity as to the maximum amount claimed. Plaintiff claims up to $

1 million, but maybe more. This “wait and see claim” violates Rule 47 which requires Plaintiff to

plead a specific statement of relief sought. See TEX. R. CIv. P. 47.

5.8 Defendant further specially excepts to Plaintiff's paragraph 26 because the $1-

million (or maybe more) amounts sought by Plaintiff exceeded the jurisdictional amount permitted

DEFENDANT THE VALLEY VIEW PARK ESTATES HOMEOWNERS’ ASSOCIATION, INC.’S
PLEA TO THE JURISDICTION, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES,
SPECIAL EXCEPTIONS AND MOTION TO DISMISS, PAGE 7 OF 12
for this Court. See TEX. Gov’T CODE § 25.0003(c)(1). Plaintiff's pleading demonstrates that this

Court lacks subject-matter jurisdiction and, as a result, must be dismissed.

VI. MOTION TO DISMISS

6.1 As demonstrated above, Plaintiff's Application of Appointment of a Receiver is

incurably defective. The Court lacks subject-matter jurisdiction and in response to such deficiency,

Defendant is entitled to dismissal with or without special exceptions. See e.g. Crosstex Energy

Servs. V. Pro Plus, Inc., 430 S.W.3d 384, 395 (Tex. 2014). Defendant hereby requests this Court

to dismiss Plaintiff's Original Petition for lack of subject-matter jurisdiction.

6.2 As further demonstrated above, Plaintiff asserts a nonviable cause of action for

Breach of Fiduciary Duty. By design of the Texas Legislature, Defendant does not owe Plaintiff a

fiduciary duty. See TEX. BUS. ORG. CODE § 22.221; see also TEX. BUS. ORG. CODE § 22.223; see

also Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex. 2005) (a fiduciary duties arises between a trustee

and a trust). A defendant should file special exceptions and a motion to dismiss when the plaintiff's

suit is not permitted by law. See, e.g., Krishnan v. Sepulveda, 916 S.W.2 478, 479 (Tex. 1995).

Defendant hereby requests this Court to dismiss Plaintiffs Original Petition for asserting a

nonviable cause of action.

6.3 As further demonstrated above, Plaintiff asserts another nonviable cause of action

for Declaratory Judgment. This cause of action is nonviable because Plaintiff has already obtained

an enforceable decision on the matter through an alternative dispute resolution process. See id.

Defendant hereby requests this Court to dismiss Plaintiff's Original Petition for asserting a

nonviable cause of action.

WHEREFORE, Defendant prays that:

Plaintiff takes nothing by way of his claims;

Defendant recovers its attorney fees, costs, and expenses as allowed by law, code,

statute, act; and

Cc. Defendant recovers such other and further relief, at law or in equity, to which it

may be justly entitled.

Respectfully submitted,

GORDON REES
SCULLY MANSUKHANTI, LLP

/s/ Keith C. Cramer
KEITH C. CRAMER
State Bar No. 24051678
kcramer@grsm.com
BRENT T. BUYSE
State Bar No. 24105567
bbuyse@grsm.com
2200 Ross Avenue, Suite 3700
Dallas, Texas 75201
(214) 231-4660 Telephone
(214) 461-4053 Facsimile

ATTORNEYS FOR DEFENDANT
THE VALLEY VIEW PARK ESTATES
HOMEOWNERS’ ASSOCIATION, INC.

CERTIFICATE OF SERVICE

Thereby certify that on June 28, 2021, a true and correct copy of the foregoing document
was served on all counsel of record via the court’s electronic filing system.

/s/ Brent T. Buyse
BRENT T. BUYSE

CHARLES “CHUCK” ZUBARIK, IN THE COUNY COURT

Plaintiff,

v. AT LAW NO. 3

THE VALLEY VIEW PARK ESTATES
HOMEOWNERS’ ASSOCIATION, INC,

Defendant. DALLAS COUNTY, TEXAS

DECLARATION OF IDA CARUSO

STATE OF TEXAS §
§
COUNTY OF DALLAS §
1 My name is Ida Caruso. I am over 18 years-of-age, under no disabilities, and fully
competent to give this Declaration. I have personal knowledge of the matters stated below, they
are true and correct, and if called to testify, I would testify thereto:

2. The Valley View Park Estates Homeowners’ Association, Inc. (“HOA”) is the property
owners’ association and nonprofit corporation for the Valley View Park Estates (“VVPE”)
subdivision. VVPE is comprised of 87 homes located at the northwest corner of Marsh Lane and
Valley View Lane in Farmers Branch, Texas.

3 I am a member of Board of Directors (“Board”) of the Valley View Park Estates
Homeowners’ Association, Inc. (“HOA”). | am also a member of the HOA Litigation Committee
charged with the oversight of this above referenced matter and I am familiar with all of the
documents filed thus far.

4 A true and correct copy of the Third Amended Litigation Committee Appointment is
attached as Exhibit 1. The HOA’s current dedicatory instruments are the 2018 Amended and
Restated Declaration of Covenants, Conditions and Restrictions for Valley View Park Estates
(“CC&Rs”) and the 2018 Amended and Restated Bylaws of the Valley View Park Estates
Homeowners Association, Inc. (“Bylaws”). A True and correct copy of the CC&Rs and Bylaws
are attached hereto as Exhibits 2 and 3, respectively.

5 The Litigation Committee was formed by the unanimous decision of the HOA Board
pursuant to the authority vested in Section 3.6 of the Bylaws and Section 22.218 of the Texas
Business Organizations Code. The purpose of the Litigation Committee is to avoid the appearance

DEFENDANT THE VALLEY VIEW PARK ESTATES HOMEOWNERS’ ASSOCIATION, INC.’S
PLEA TO THE JURISDICTION, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES,
SPECIAL EXCEPTIONS AND MOTION TO DISMISS, PAGE 10 OF 12
of impropriety and any potential conflicts of interest as a result of the three lawsuits that involve
the HOA and a few of the Board members.

6. The three lawsuits were filed by Charles Zubarik and Charles McLean and are currently
pending in the 68" Judicial District Court of Dallas County at Cause No. DC-19-18220; the 193"¢
Judicial District Court of Dallas County at Cause No. DC-21-02625; and County Court at Law #3
of Dallas County at Cause No. CC-21-02080-C. I am not a named party to any of these lawsuits.
7
The Litigation Committee has been delegated the authority to make all decisions on behalf
of the Board including, but not limited to, communication with counsel, approval and execution
of documents, and settlement authority. The Litigation Committee is comprised of myself, Arthur
Bollon, and Patrick McManemin, Esq. Arthur Bollon and I are both on the Board and are not
named parties to any lawsuit involving the HOA. Patrick McManemin, Esq. is a Member of the
HOA and is not a named party to any lawsuit involving the HOA. See Exhibit 1, at 5.

8 The Board and the HOA have continued to function and proceed with typical day-to-day
business equally as before the lawsuit began. These lawsuits have not been a disruption or issue
beyond that ofa nuisance. The only true disruption the Board and HOA have encountered recently
was due to COVID-19 and the abrupt necessity for social distancing, virtual meetings,
communications, and sharing of information. Business as usual continues to function without
deadlock, improprieties, or conflicts of interest.

9 The membership of the HOA is also proactive in addressing the needs of the HOA and
utilizes their ability to initiate actions and conduct business of the HOA pursuant to the CC&Rs
and Bylaws. There have been no instances where business could not be conducted for lack of
quorum or other procedural issue that has not been able to be rectified within a very short period
since I have been on the Board.

10. The HOA and the Board regularly receive advice and guidance from professional,
Members, and experts when deliberating decisions in order to address the needs, safety, welfare,
and health of the HOA as well as to comply with the standards, codes, and laws that apply to the
HOA.

11. Since I have been on the Board, no member has made a formal request for records of the
HOA pursuant to Texas Property Code Section 209.005. That is the only manner in which records
related to the HOA’s finances would be provided.
12. Iam an authorized representative of the HOA, Board, and Litigation Committee, and I have
tead the foregoing Plea to the Jurisdiction, Original Answer, Affirmative Defenses, Special
Exceptions and Motion to Dismiss. The factual allegations stated in paragraphs 4.1, 4.2, 4.3, 4.4,
4.5, 4.6, 4.7, 4.8, 4.9, and 4.10 are all within my personal knowledge and are true and correct.

My name is Ida Caruso, my date of birth is June, 20, 1973, and my address is 13206 Cedar
Lane, Farmers Branch, Texas 75234. I Declare under penalty of perjury that the foregoing is true
and correct.
Executed in Dallas County, State of Texas, on June 25, 2021.

IDA CARUSO

DEFENDANT THE VALLEY VIEW PARK ESTATES HOMEOWNERS ” ASSOCIATION, INC.’S
PLEA TO THE JURISDICTION, ORIGINAL ANSWER, AFFIRMATIV!
E DEFENSES,
SPECIAL EXCEPTIONS AND MOTION TO DISMISS
PAGE 12 OF 12
EXHIBIT 1
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CERTIFICATE FOR RECORDATION
OF DEDICATORY INSTRUMENT OF
THE VALLEY VIEW PARK ESTATES HOMEOWNERS ASSOCIATION, INC.

STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS

WHEREAS, Section 202.006 of the Texas Property Code requires that “A property owners’
association shall file its dedicatory instruments in the real property records of each county in which the
property to which the dedicatory instruments relates is located.”; and

WHEREAS, The Valley View Park Estates Homeowners Association, Inc., a Texas nonprofit
corporation (the “Association”) desires to comply with Section 202.006 by filing of record in the real
property records of Dallas County, Texas, the attached instrument; and

WHEREAS, the attached instrument constitutes a “dedicatory instrument” as defined by Section
202.001 of the Texas Property Code; and

WHEREAS, the Declaration of Covenants, Conditions and Restrictions for The Valley View Park
Estates Homeowners Association, Inc., executed by Peggy Sterling, and recorded on or about August 21,
2018 at Instrument Number 201800224595 in the Real Property Records of Dallas County, Texas, including
any amendments thereof, additions, annexations and supplements thereto and entitled “2018 Amended
and Restated Declaration of Covenants, Conditions and Restrictions for Valley View Park Estates” (the
“Declaration”) subjected to the scheme of development therein certain land described in the Declaration
and Bylaws of the Association and located in Dallas County, Texas;

NOW THEREFORE, the undersigned authorized representative of the Association hereby
executes this Certificate to affect the recording of the dedicatory instrument attached hereto on behalf
of the Association.

[signature page follows]

SS
THIRD AMENDED LITIGATION COMMITTEE APPOINTEMENT
THE VALLEY VIEW PARK ESTATES HOMEOWNERS ASSOCIATION, INC. Page 1
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EXECUTED this g yday of June, 2021

The Valley View Park Estates Homeowners Association,
Inc., A Texas nonprofit Corporation

By: oY
Eric Sorensen, Director

STATE OF TEXAS
COUNTY OF DALLAS

This instrument was acknowledged before me on the s day of
June, 2021, by Eric Sorenson, director and
authorized representative of The Valley View Park Estates
Homeowners Association, Inc., a Texas
nonprofit corporation, on behalf of said corporation.

JUDY AROSE
Q. Le
notary | 1p #1859867
My Commi ission Expires Notary Public in and for the State of Texas
Novernber 5.| os

Sener
T
HIRD AMENDED LITIGATION COMMITTEE APPOINTEMENT
THE VALLEY VIEW PARK ESTATES HOMEOWNERS ASSOCIATION, INC.
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Third Amended Litigation
Committee Appointment

The Valley View Park Estates Homeowners Association, Inc.

STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF DALLAS §

We, the undersigned, being the directors of the Valley View Park Estates Homeowners
Association, Inc., a Texas non-profit Association (the “Association”), pursuant to Section 209 of the Texas
Property Code and Section 22 of the Texas Business Organizations Code, do, by unanimous consent, take
the following corporate action and adopt the following resolutions, which corporate action and
resolutions shall have the same force and effect as a unanimous vote of all the directors of the Association
at a duly called meeting of the Board of Directors of said Association:

WHEREAS, pursuant to Article Ill, Section 3.1 of the Bylaws of the Valley View Park Homeowners
Association, Inc., the business and affairs of the Corporation shall be managed by its Board of Directors,
who may exercise all such powers of the Corporation and do all such lawful actions and things as are
permitted by statute or by the Articles of Incorporation or by the Bylaws.

WHEREAS, pursuant to Article Ill, Section 3.6 of the Bylaws of the Valley View Park Homeowners
Association, Inc., the Board of Directors, by resolution adopted by a majority of the Directors in office,
may designate one or more committees which, to the extent provided in such resolution, shall have and
exercise the authority of the Board of Directors in the management of the corporation; but the
designation of such committees and the delegation thereto of authority shall not operate to relieve the
Board of Directors or any individual Director of any responsibility posed upon it or by him by law.

WHEREAS, litigation is currently pending in the 68" Judicial District Court of Dallas County Texas
at Cause No. DC-19-18220 (hereinafter the “68" District Court Lawsuit”). Valley View Park Estates
Homeowners Association, Inc. and individual directors and members of the Association are parties in this
litigation.

WHEREAS litigation is currently pending in the 193 Judicial District Court of Dallas County Texas
at Cause No. DC-21-02625 (hereinafter the “193" District Court Lawsuit”). The lawsuit was filed by a
member within the Association seeking appointment of a Receiver for Valley View Park Estates
Homeowners Association, Inc.

WHEREAS, litigation is currently pending in County Court at Law #3 of Dallas County Texas at
Cause No. CC-21-02080-C (hereinafter the County Court Lawsuit”). The lawsuit was filed by a member

THIRD AMENDED LITIGATION COMMITTEE APPOINTEMENT
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within the Association seeking appointment of a Receiver for Valley View Park Estates Homeowners
Association, Inc.

WHEREAS, the litigation that is currently pending in the County Court, 68" Judicial District Court
and the 193 Judicial District Court may cause a conflict of interest between certain members of the
Association as a result of their concurrent status as defendants and directors in this litigation. Those
directors of the Association wish to avoid the appearance of impropriety and any potential conflict of
interest.

WHEREAS, a litigation committee was previously appointed to control the litigation currently
pending in the 68° and 193” Judicial District Court of Dallas County Texas. The instruments appointing
said committees were filed in the Dallas County Real Property Records at Instrument Number
2020000302670 and Instrument Number 202100066521.

WHEREAS, the above referenced instrument filed at Instrument Number 2020000302670 was
amended and filed in the Dallas County Real Property Records on or about March 1, 2021 at Instrument
Number 202100056545. This amendment altered the composition of the committee.

WHEREAS, the directors of the Association wish to expand the authority of the litigation
committee to diligently pursue the resolution of all three matters currently pending in Dallas County
Court: (1) County Court at Law #3 case filed under Cause No. CC-21-02080; (2) litigation pending in the
193" Judicial District Court of Dallas County Texas at Cause No. DC-21-02625; and (3) litigation as currently
pending in the 68" Judicial District Court at Cause No. DC-19-18220.

NOW, THEREFORE, IT IS RESOLVED, that the scope of the litigation committee is hereby expanded
to diligently pursue the resolution of the litigation pending in County Court at Law #3, the 68" Judicial
District Court lawsuit, as well as the 193" Judicial District Court lawsuit. The scope of the authority of the
litigation committee is as follows:

ie Litigation Committee Objectives. The Litigation Committee will be governed by the following
objectives:

The Litigation Committee will diligently pursue resolution of the Litigation that is currently
pending in the 68" Judicial District Court of Dallas County Texas at Cause No. DC-19-
18220.
In addition to the above, the Litigation Committee will diligently pursue resolution of the
Litigation that is currently pending in the 193" Judicial District Court of Dallas County
Texas at Cause No. DC-21-02625.
Lastly, the Litigation Committee will diligently pursue resolution of the Litigation that is
currently pending in County Court at Law #3 of Dallas County Texas at Cause No. CC-21-
02080-C.

a
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The Litigation Committee will attempt to resolve the above cases in such a manner that
limits financial loss and liability to the Association.
Should the Litigations be unable to be resolved via settlement, the Litigation Committee
shall seek to limit financial loss and liability to the Association.

2. Litigation Committee Authority. The Litigation Committee has been delegated the authority to
make the following decisions on behalf of the Directors of the Association. Any directive from the
Litigation Committee shall have the full force and authority of that of the directors of the
Association. This authority is limited to the litigations that are currently pending in the 68"
Judicial District Court of Dallas County Texas at Cause No. DC-19-18220, the 193" Judicial District
Court of Dallas County Texas at Cause No. DC-21-02625, and County Court at Law #3 of Dallas
County Texas at Cause No. CC-21-02080-C. This authority includes, but is not limited to, the
following:

Communicate with and provide direction to Counsel for the Association;
Communicate with and provide direction to the Insurance Carrier for the Association;
Communicate with members of the Association and 3" Parties related to the Lawsuit;
Expenditure of Association proceeds on behalf of the Association in furtherment of the
Litigation Committee Objectives.
Execution of documents on behalf of the Association in connection with any Settlement;
Settlement authority on behalf of the Association for the Lawsuits currently pending in
the 68" District Court, County Court at Law #3, and 193" District Court;

Litigation Committee Indemnity. The Association shall indemnify members of the Litigation
Committee in accordance with Article XIII, Section 13.5 of the Bylaws of the Association. Such
rights afforded to the Committee under Section 13.5 shall not be deemed exclusive of any other
rights to which the Committee member may be entitled by law or under any bylaw, agreement,
or otherwise.

4 Litigation Committee Membership. The Members of the Litigation Committee are as follows:
a. Ida Caruso
b. Arthur Bollon
c. Patrick McManemin

IT IS FURTHER RESOLVED that this Third Amended Litigation Committee Appointment replaces and
supersedes in all respects all prior appointments, rules, policies and resolutions with respect to the
litigations currently pending before the 68" Judicial District Court of Dallas County Texas at Cause No. DC-
19-18220, the 193 Judicial District Court of Dallas County Texas at Cause No. DC-21-02625, and County
Court at Law #3 of Dallas County Texas at Cause No. CC-21-02080-C and is effective upon adoption hereof,
to remain in force and effect until revoked, modified or amended.

|=
THIRD AMENDED LITIGATION COMMITTEE APPOINTEMENT
THE VALLEY VIEW PARK ESTATES HOMEOWNERS ASSOCIATION, INC. Page5
2021 - 202100172788 06/10/2021 10:28AM Page
6 of 7

This is to certify that the foregoing resolution
was ado; pted by the Board of Directors via
unanimous written consent and has not
been modified, rescinded or revoked.

EXECUTED thisB day of June, 2021

Valley View

By:
oO lomeowners Association, Inc.

\ > ann”
Eric Sorenson, Director

EXECUTED this, day of June, 2021

7
Valley View Pa ers Association, Inc.

By:
Carey Dinn, Diréctor

EXECUTED this 4 day of June, 2021

Valley View Park Homeowners Association,
Inc.

By: Lo Fue
ArthurBollon, Director

EXECUTED this & day of June, 2024

Valley View Park Homeowners Association, Inc.

By. J Jee
Dave Smelser, Director

EXECUTED this ¢ day of June, 2021

Valley \iew Par! lomeowners Association, Inc.

By
Ida Caruso, Director

THIRD AMENDED LITIGATION COMMITTEE APPOINTE
MENT
THE VALLEY VIEW PARK ESTATES HOMEOWNERS
ASSOCIATION, INC. Page 6
2021-202100172788 06/10/2021 10:31 AM Page 7 of7

Dallas County
John F. Warren
Dallas County Clerk

Instrument Number: 202100172788

eRecording - Real Property

Recorded On: June 10, 2021 10:28 AM Number of Pages: 7

“ Examined and Charged as Follows: "

Total Recording: $46.00

sweescee® THIS PAGE IS PART OF THE INSTRUMENT ******#****
Any provision herein which restricts the Sale, Rental or use of the described REAL PROPERTY
because of color or race is invalid and unenforceable under federal law.

File Information: Record and Return To:
Document Number: 202100172788 Simplifite
Receipt Number: 20210610000249
Recorded Date/Time: June 10, 2021 10:28 AM
User: Kamesha W

Station: CC33

STATE OF TEXAS
COUNTY OF DALLAS

sh Thereby certify that this Instrument was FILED In the File Number sequence on the date/time
printed hereon, and was duly RECORDED in the Official Records of Dallas County, Texas.
John F. Warren
Dallas County Clerk
Dallas County, TX
fg—
EXHIBIT 2
npr
\o
io ELECTRONICALLY RECORDED 201800224595
08/21/2018 04:05:52 PM DECLARATION 1/30
2018 AMENDED AND RESTATED
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS.
FOR
VALLEY VIEW PARK ESTATES

This Amended and Restated Declaration of Covenants, Conditions and
Restrictions for Valley View Park Estates (the “Amended and Restated Declaration”) is
made to be effective on the date it is filed of record with the Office of the Dallas County
Clerk by Valley View Park Estates Homeowners Association, Inc., a Texas non-profit
corporation.

WITNESSETH:

WHEREAS, on February 15, 1989, Sharif-Munir-Davidson Development
Corporation imposed certain restrictive covenants upon the Property evidenced by that
certain Declaration of Covenants, Conditions and Restrictions for Valley View Park
Estates, recorded in Volume 89031, Page 1982, et seq. of the Deed Records of Dallas
County, Texas (the “Declaration’); and

WHEREAS, the Declaration under Article XII, Section 3 thereof could be
amended and/or changed in part upon the express written consent of at least seventy
percent (70%) of the outstanding votes of The Valley View Park Estates Homeowners
Association, Inc.; and

WHEREAS, the Declaration was amended pursuant to that certain instrument
entitled Amendment No. 1 to Declaration of Covenants, Conditions and Restrictions for
Valley View Park Estates filed of record on June 15, 1992 and recorded in Volume
92116, Page 0033 et seg. of the Deed Records of Dallas County, Texas (the “First
Amendment”); and

WHEREAS, the Declaration was amended a second time by that certain
instrument entitled Amendment No. 2 to Declaration of Covenants, Conditions and
Restrictions for Valley View Park Estates filed of record on June 15, 1992 and recorded
in Volume 92116, Page 0038 ef seq. of the Deed Records of Dallas County, Texas (the
“Second Amendment"); and

WHEREAS, the Declaration was amended a third time by that certain instrument
entitled Amendment No. 3 to Declaration of Covenants, Conditions and Restrictions for
Valley View Park Estates filed of record on August 25, 1992, and recorded in Volume
92116, Page 1001 ef seq. of the Deed Records of Dallas County, Texas, consented to
by the Declarant, Summa Limited Partnership, as evidenced by that certain instrument
filed on August 25, 1992 and recorded in Volume 92116, page 0998 et seq. of the Deed
Records of Dallas County, Texas (collectively the “Third Amendment”); and

Amended and Restated Declaration of Covenants, Conditions
and Restrictions for Valley View park Estates — Page 1
725733
WHEREAS, the Original Declaration, the First Amendment, the Second
Amendment and the Third Amendment are hereinafter referred to collectively as the
“Original Declaration”; and

WHEREAS, upon receipt of the express written consent of at least seventy
percent (70%) of the outstanding votes of the Association, as required in Article XI,
Section .3(b) of the Original Declaration, the members of the Association, by and
through The Valley View Park Estates Homeowners Association, Inc. did amend and
restate the Original Declaration in its entirety by that certain instrument entitled
Declaration of Covenants, Conditions and Restrictions for Valley View Park Estates,
dated September 1, 1997, executed by the President of the Association, David J. Ferre,
on February 9, 1998, filed of record on March 19, 1998, and recorded in Volume 98054,
Page 03256, ef seq. of the Deed Records of Dallas County, Texas (the “Revised
Declaration”); and

WHEREAS, the members

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