Circle C Neighbors

Election Lawsuit! Part 1

Mar 31, 2003

The following is a letter from a Circle C Resident to Bill Gammon. The lawsuit follows the 2 letters with 2 responses.

His response follows.
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Hi Bill:

Man, have you really stepped in it!?  I was pretty surprised to hear your name at the beginning of the Homeowner's meeting.?  I knew that you had some issues that you were not happy about, but a restraining order and threat of lawsuits against the HOA seemed somewhat extreme to me.?  I am aware of the correspondence from Lisa Sun's attorney and the Board's response.?  I really expected something from that quarter.

Let me tell you a little about myself and my family.?  My wife and I are both Texas natives.?  We have lived in the Austin area for nearly 30 years.?  I hold a B.B.A. degree from Southwest Texas State University.?  My wife has a B.A. degree from Southwestern University (where we met and were married), a B.S.N. degree (graduating with High Honors) from U.T. Austin, and a Masters degree in Health Care Administration from Trinity University in San Antonio.?  We have a twenty year old daughter, three cats, and a horse.? 

In short, I think we classify as your peers.
I don't get your point in filing for a restraining order to prevent a vote on the Board of Directors for the HOA.?  And I really don't understand why you would threaten the HOA with challenges to any subsequent decisions by the Board.?  You are costing the Homeowner's Association money that could best be spent on other things.?  Carl Kernodle is not going to win over the majority of the homeowners, simply because they don't know who he is or simply do not agree with his positions.?  Maybe Carl should have started his campaign earlier.

If your agenda is truly related to the assessment of dues and the relative votes in an Association election, why not try to solve the problem within the system??  Don't expect the system to work overnight.?  As an attorney, you work in an adversarial system.?  As a real estate professional, I work in a cooperative business environment that does not work without agreement of ALL the parties involved.?  Which system do you think works better?

I do not want you to continue to represent to the court that you represent me in any way, either individually or collectively as a member of the Circle C Ranch Homeowner's Association.
I had hoped that we could be friends.?  I always welcome a heated debate on subjects that get the juices flowing.?  But, lawsuits only benefit lawyers and winning is the only objective.?  So, what is your objective?

Regards,
B.O.

======================
Response from Bill Gammon

Mar 27, 2003
B.O.
? 
Thanks for writing.?  I very much appreciate your perspective and certainly do consider you as my peer.?  Thank you also for your frankness without undue rancor.?  I still hope that we can become friends.?  Perhaps I could begin that process by acting as one and? responding to? you with full, frank answers to your questions.?  You deserve nothing less.
? 
The first thing I would urge you to do is to read the entire lawsuit.?  Some of your questions will be answered by doing so.?  I have attached a copy in Microsoft Word format without exhibits, which will require scanning.?  Let me know if you have any difficulty opening the document.?  I will have the exhibits scanned and forward them to you.? 
? 
The lawsuit is brought under the Declaratory Judgments Act, a Texas statute which is designed to allow people to bring their disputes to a court? to settle controversies? before they get out of hand.?  My objectives are set forth in the lawsuit at the end where I ask for specific relief by the Court, mostly in the form of declarations regarding interpretation of the rights and duties of the homeowners.? 
? 
I have not asked for an award of damages under any statute, nor have I yet sought an award of my attorney fees in this suit although they are specifically authorized under the statute.
? 
I have not brought suit on behalf of Carl Kernodle, a fine and honorable man, much maligned by the Board,? who specifically asked me not to file any lawsuit or do anything else to stop the election.? 
? 
I have sought to work within the system.?  I have devoted far more time to the matters of the CCHOA than I ever wanted or intended.?  Ironically, the lawsuit is intended only to make the Board do likewise.?  If the? Board would work within the system and obey the rules set out in the Articles of Incorporation, By-Laws and Declaration of Covenants the lawsuit would not have been necessary.?  It is only because the Board has flatly refused to do so and has, quite literally, refused to obey Texas law that I have done as I have.? 
? 
It is unfortunate? that the Board must be taken to court to get them to do what they insist that everyone else must do.?  It is unfortunate that an election must be put on hold? so that it is not conducted illegally.?  It is far better to do so, however, than allow it to proceed in the knowledge that it is fundamentally unfair.?  It will be far less expensive to everyone? to do it right the first time than have its results later challenged? and? be forced to do it again.? 
? 
Thanks again for writing.?  I am honored by your thoughtful approach.
? 
Bill

-By Circle C Resident
============================
Lawsuit Filed at 4:45 p.m.

Mar 27, 2003
Bill:

I went to the meeting last night, and was informed by the Association attorney that she received the original petition at 4:45 p.m. I'm sure you filed the petition shortly before that.

Why did you wait until the late afternoon on the day of the meeting to take this action? I'm sure many people like me arranged their schedules to be at the meeting and participate in an election, only to find at the last minute that there would be no election that night.

Your petition is extensive and detailed. Obviously, you did not decide to file this lawsuit yesterday afternoon. You have been working on this for some time. It appears from the petition that you have two complaints about the election itself, and this is not to say that you don't have other complaints. One is that Kernodle was not on the ballot, and two is the manner in which the votes were to be counted.

I would assume you have known for some time who was on the ballot. It also appears you have known about issues regarding the counting of the votes.

Given all this, your lawsuit could and should have been filed days, if not weeks earlier, so as not to inconvenience the hundreds of homeowners who showed up expecting to vote. This causes me to question your motives, that is, are you really advancing the interests of the homeowners, or are you simply engaging in some type of ''guerilla warfare'' whose sole purpose is to be disruptive and increase costs. It would seem to be if you have the owners' interests at heart, you would have filed the lawsuit days or weeks earlier and notified the homeowners of the possibility that the election would not be held. In that way, those of us who attended the meeting would not have been inconvenienced, and the association would not be forced to incur the expense of having another meeting at some point in the future to conduct an election.

Regardless of the merits of the respective positions, I don't appreciate being caught in the cross-fire.

I would appreciate your response.

jrb

=================================
Mar 29, 2003
Dear JRB,

Thank you for voicing the thoughts of many and giving me the opportunity to respond. Your questions are direct, your manner straightforward, and you clearly deserve answers. I will do my best to respond in kind.

You are correct in your assumption that the petition was filed on the afternoon of the homeowners' meeting. That was not by design. I would much rather have been able to finish and file it earlier so that my neighbors could be told and plan accordingly. I tried, but simply could not complete it any sooner than I did. I am sorry.

You are also correct in your assessment that I did not decide to file the lawsuit the same afternoon that it was finally accomplished. You are further correct in your statement that I have been ''working on this for some time'' as long as by ''this'' you mean reading the articles, by-laws and Declaration and attempting, mostly without success, to view the documents that the HOA is obligated to maintain and produce for our inspection.

I did not begin to work on the lawsuit, however, until Tuesday morning in response to an e-mail I received from the Board the day before setting out the ''Election Rules for the March 26, 2003 election.'' In retrospect I wish that I had begun the work immediately, but I chose instead to seek advice and counsel, pray for guidance, and to sleep on it lest I do anything precipitous.

You are correct in your assumption that I, like many here, have known for some weeks that Mr. Kernodle was not on the ballot. I am at a loss to understand the reason that you state, ''It also appears you have known about issues regarding the counting of the votes.'' As you know, the decision by the Board to attempt to undermine homeowner voting strength was not made (or at least revealed to us) until the eve of the election. It was this curious choice of timing by the Board that dictated the timetable that my actions took.

Have you inquired of the Board members why they waited until Sunday evening to send out their announcement? Nothing did, nor could have, prevented them from doing so weeks, or even years before. Why wait until 72 hours before the first contested election?

Why even make such an obviously illegal attempt to steal our fundamental rights at all? Whom does it prosper? Think about it. This is the first election in the history of the CCHOA when the developers did not have three times the votes of the homeowners. For the first time ever, the developers and homebuilders are limited to the value of their property (the unimproved lots) to determine their votes. Do the math. Developers and homebuilders lose NO VOTES under the Board's ''Election Rules'' while homeowners lose MILLIONS OF VOTES.

I find this glaring inequity too obvious to have been lost on the Board that conceived of the ''Election Rules'' that would create it. I am equally certain that the board members (and their attorney who advised them) will deny such awareness. It doesn't matter.

In any event they have demonstrated through this action alone either a willingness it steal our fundamantal rights for the obvious benefit of the developers, or such a total lack of competence and common sense as to render them unfit to serve in positions of authority and to spend over a million of our dollars annually.

I almost wish that I had been able to ignore what was going on here and not act to stop it. It would seem, at least at first, to be so much easier. I would have avoided the criticism and hostility that has been directed at me. I could have spent the two days that it took me to put the suit together in purusit of the goals of clients who appreciate and pay me for my services. I would have saved the hundreds of dollars I paid in filing and service fees and the thousands of dollars in the bond. I could have saved a lot of things, it seems. The only price would have been my self-respect.

Bill Gammon

=========================

WILLIAM B. GAMMON, individually and as?  IN THE _______ JUDICIAL

Representative of the Members of the Circle C? ? ? 
Homeowners Association, Inc.? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 
? ? ? ? ? ? ? ? ? ? ?  Plaintiff ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ?  ? ? ?  ? ? ? ? 
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ?§? ? ? ? ? ? ? ? ? ? ? ? ? 
vs.? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ? ?  ?§? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ?  DISTRICT COURT OF

CIRCLE C HOMEOWNERS ASSOCIATION,? ? ? ? ? ? ?  ?§

INC., STEVEN P. BARTLETT, KEN RIGSBEE? ? ? ? ? ?§

and JIM O?’REILLY? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ?§

? ? ? ? ? ? ? ? ? ? ?  Defendants? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ?§? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  TRAVIS COUNTY, TEXAS? ? ? 

? ?  PLAINTIFF?’S ORIGINAL PETITION, MOTION FOR TEMPORARY

? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  RESTRAINING ORDER AND MOTION FOR TEMPORARY INJUNCTION

TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW WILLIAM B. GAMMON, Plaintiff, complaining of CIRCLE C HOMEOWNERS ASSOCIATION, INC., STEVEN P. BARTLETT, KEN RIGSBEE and JIM O?’REILLY, Defendants, and for cause would respectfully show:

1.? ? ? ? ?  Pursuant to Texas Rule of Civil Procedure 190.3, Plaintiff says that discovery should be conducted under Level 3.

2.? ? ? ? ?  Venue is proper in the District Court of Travis County Texas, as all natural defendants reside therein and the corporate defendant maintains its business address and registered office therein.

3.? ? ? ? ?  Plaintiff is an individual who resides in the Circle C Ranch subdivision of Austin, TravisCounty, Texas.?  Defendant, Circle C Homeowners Association, Inc. (CCHOA) is a Texas Nonprofit Corporation.?  Its registered office is 2304 Hancock Drive, #4, Austin, TX 78756 and its registered agent is Steven P. Bartlett.?  Although required by Tex. Rev. Civ. Stat. Art. 1396 ?– 2.05(2) to continuously maintain in Texas a registered agent whose business office is identical with the registered office, Plaintiff asserts on information and belief that the registered office of the corporation is the offices of Giles & Shea and is not the business office of Steven P. Bartlett.?  Steven P. Bartlett (Bartlett) is an individual resident of Travis County, Texas and may be served with process at his business office 1000 Westbank Drive, Suite 2C, Austin, Texas 78746.?  Ken Rigsbee (Rigsbee) is an individual resident of Travis County, Texas and may be served with process at his home at 6406 Old Harbor Lane, Austin, Texas 78739.?  Jim O?’Reilly (O?’Reilly) is an individual resident of Travis County, Texas and may be served with process at his business office at 111 Congress, Suite 1900, Austin, Texas 78701.?  Any of the above can accept service on behalf of CCHOA.

4.? ? ? ? ?  Plaintiff is a homeowner and member of Defendant CCHOA.?  Defendants Bartlett, Rigsbee and O?’Reilly compose the board of directors of Defendant CCHOA (the Board).?  Plaintiff brings suit against Defendants pursuant to the Uniform Declaratory Judgments Act as set forth in the Texas Civil Practice and Remedies Code, ?§37.001 et seq. seeking a declaration of rights, status, and legal relations as set forth in the Articles of Incorporation, By-Laws, and Declaration of Covenants, Conditions and Restrictions for Circle C Ranch Subdivision (the Declaration) which documents set forth certain rights and duties of the members of CCHOA and are attached hereto as Exhibits 1, 2, and 3, respectively.? ?  These documents together are sometimes referred to herein as the Governing Documents.

5.? ? ? ? ?  Plaintiff says that numerous disputes have arisen involving the members of CCHOA and the conduct of the Board of Directors and that a real and substantial controversy exists involving genuine conflicts of tangible interest and not merely theoretical disputes.? ?  Plaintiff asks the Court to determine the questions of rights and duties as set forth below and seeks this relief so that these controversies will be resolved by the declarations sought.

6.? ? ? ? ?  BACKGROUND FACTS ?– ANNUAL MEETING AND ELECTION

Pursuant to the Governing Documents, management of the affairs of the CCHOA shall be by a Board of Directors, which directors shall be elected by the members at the annual meeting which occurs on March 26.?  Each year a single director is elected to serve a three-year term.? ?  The Declaration sets out how and when voting is to occur, the eligibility of voters, and the number of votes that each voter is entitled to cast.?  The Declaration set up two classes of voters:?  Class A (homeowners) and Class B (developer).?  The Declaration states that Class B is entitled to three votes for every vote of Class A.?  Class B would be converted to class A no later than December 31, 2002.? ?  The March 26, 2003 election is the first election in the history of the CCHOA in which a contest has occurred.?  The director whose term is expiring is Steve Bartlett, a non-member, non-resident developer who has been on the Board since its inception.?  He is seeking re-election and is supported by the other Board members, Rigsbee and O?’Reilly, who have endorsed him.? ?  There are two other candidates for the position:?  Jeff Niemeyer and Carl Kernodle.?  Both are members of the CCHOA and residents in Circle C Ranch subdivision.?  Mr. Niemeyer is listed on the official ballot of the CCHOA.?  Mr. Kernodle is not.?  Mr. Kernodle has actively campaigned by making numerous public appearances and by publishing and disseminating campaign literature setting forth his views.?  Dozens of member-residents have actively assisted him in his campaign.?  He has collected hundreds of proxies from members who support him.? ?  He has been openly criticized by the Board for his efforts.

? ? ? ? ?  7.? ? ? ? ?  CONDUCT OF UPCOMING ELECTION FOR BOARD OF DIRECTORS ?–

? ? ? ? ? ? ? ? ? ?  a.?  ? ? ? ? ? ? ? ? ? ? ?  Plaintiff says that the Board has engaged in numerous illegal activities designed to influence the outcome of the election and ensure that Bartlett maintains his position on the Board.?  It has failed and refused to follow the dictates of the Governing Documents and to obey Texas law.?  The actions of the CCHOA and Board are in violation of, inter alia, Tex. Rev. Civ. Stat. Art. 13.96-2.11B.?  Despite numerous requests by Plaintiff and other CCHOA members to view a list of the voting members and the number of votes each member is entitled to cast at the meeting, those requests have been denied.?  In fact, Rigsbee and O?’Reilly openly stated to a group of CCHOA homeowner members on March 22, 2003 that no such list has been prepared and that when it is prepared it will not be made available for inspection at the CCHOA principal office despite the demands from Plaintiff and others that such refusal violates the Texas Nonprofit Corporation Act.?  See the affidavit attached hereto as Exhibit 4.?  On March 25, 2003, the Board sent out a message by e-mail (attached to Exhibit 4) to some of the members that a voting list was available.?  That list does not comply with the law.
b.? ? ? ? ?  Plaintiff says that the Board has failed and refused to follow Declaration Article II, Section 2, which states that ?“members shall be entitled to one vote for each one hundred dollars ($100.00) or fraction thereof of value of that portion of The Properties owned by each such member as assessed by the Travis County Appraisal District for ad valorem tax purposes for the preceding year.?”?  The Board, however, has stated on at least one occasion that each member will get one vote (see attached exhibit 5, a letter from the Board sent by e-mail in response to Plaintiff?’s inquiry), and now, by letter of March 21, 2003 and by e-mail on March 23, that ?“each member who is paying the full assessment is entitled to 1,740 votes, and all other members with less property value will be allotted one vote per $100.00 valuation of property.?”? ?  See Exhibit 6 attached hereto.?  Also, Article V, Section 2 of the By-Laws states, ?“the members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration.?”?  Plaintiff says that the Board does not have the authority to alter the voting rights of its members as it is attempting to do.

c.? ? ? ? ?  ? Plaintiff says that the Board has acted in bad faith and without authority in failing and refusing to recognize aqualified member as a nominee for election to the Board and place his name on the official ballot.?  Article V, Section 1 of the By-Laws states that ?“Nomination for election to the Board of Directors shall be made by a Nominating Committee.?”?  The nominating committee for CCHOA consists of one Board member and two other members of the association.?  As such, pursuant to Tex. Rev. Civ. Stat. Art. 13.96-2.18, the nominating committee cannot exercise the full authority of the board of directors. Further, pursuant to Tex. Rev. Civ. Stat. Art. 13.96-9.10, any action taken by the committee without a meeting can only legally occur if a ?“consent in writing setting forth the action to be taken by the committee?” is signed by all the members of the committee.?  No such consent appears among the books and records of CCHOA, which books and records are required to be kept pursuant to Tex. Rev. Civ. Stat. Art. 13.96-2.23.?  Plaintiff says that February 10, 2003 was allegedly selected by the nominating committee as the cutoff date for nominations to be received by the committee.?  Notice of this date was not sent by mail to the members, but was admittedly sent by e-mail to only a portion of the total membership (approximately 1300 of over 2700 homeowners).?  There is no record of any meeting of the nominating committee prior to February 10, 2003, nor is there any record among the minutes of the meetings of the Board of Directors (which are kept on display at the Information Center) that the Board adopted this date, therefore the date cannot operate as a cutoff date for receipt of the nominations by the committee.?  Any insistence that Carl Kernodle be excluded from the ballot as a result of the application of this date is in bad faith.?  Plaintiff says that the nominating committee has admitted that Carl Kernodle?’s name was submitted to them for nomination to the Board in conformity with the By-Laws. The Board has refused to place his name on the ballot although such failure is in violation of the By-Laws and Texas law.

d.? ? ? ? ?  Plaintiff says that the Board is misusing the resources of the CCHOA in order to exercise unfair advantage against Carl Kernodle who has mounted a campaign for election to the Board despite the unlawful and unauthorized actions of the CCHOA Board members Rigsbee and O?’Reilly who have actively and openly campaigned for Bartlett.?  Not only are Rigsbee and O?’Reilly listed as the first two supporters of Bartlett on his campaign literature (see attached exhibit
d.? ? ? ? ?  Plaintiff says that the Board is misusing the resources of the CCHOA in order to exercise unfair advantage against Carl Kernodle who has mounted a campaign for election to the Board despite the unlawful and unauthorized actions of the CCHOA Board members Rigsbee and O?’Reilly who have actively and openly campaigned for Bartlett.?  Not only are Rigsbee and O?’Reilly listed as the first two supporters of Bartlett on his campaign literature (see attached exhibit 7), but they have used CCHOA funds to distribute campaign literature and libelous attacks on Mr. Kernodle and his supporters and asking homeowners to vote for either Bartlett or Jeff Neimeyer, a new CCHOA member who was allegedly nominated by the committee.? ?  See attached exhibit 8.?  The Board has further used the e-mail list of the CCHOA to disseminate the same political message while claiming that the list is only to be used for ?“official purposes.?”?  See attached exhibit 9.?  Plaintiff says that the Board?’s actions in so using the resources of the CCHOA are illegal and unauthorized by the Association or Texas law.

e.? ? ? ? ?  CCHOA and the Board have contended that any proxy other than the one that was sent out to some of the members is invalid and will not be honored.?  Plaintiff says that such claims are without basis in law and without support in the by-laws, articles of incorporation or Declaration, and that a valid proxy need not be on any particular form.

8.?  ?  FAILURE TO MAINTAIN ADEQUATE BOOKS AND RECORDS OF THE CORPORATION AND TO ALLOW INSPECTION THEREOF -

? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? NO.?  GN___________
? 
WILLIAM B. GAMMON, individually and as? ? ? ? ? ? ? ? ?  ?§? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ?  IN THE _______ JUDICIAL
Representative of the Members of the Circle C? ? ? ? ? ? ?  ?§
Homeowners Association, Inc.? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ?§
? ? ? ? ? ? ? ? ? ? ?  Plaintiff ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ?  ? ? ?  ? ? ? ?  ? ?§? ? ? ? ? ? ? ? ? ? ? 
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ?§? ? ? ? ? ? ? ? ? ? ? ? ? 
vs.? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ? ? ? ? ? ? ? ? ? ? ? ?  ?§? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ?  DISTRICT COURT OF
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ?§
CIRCLE C HOMEOWNERS ASSOCIATION,? ? ? ? ? ? ?  ?§
INC., STEVEN P. BARTLETT, KEN RIGSBEE? ? ? ? ? ?§
and JIM O?’REILLY? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ?§
? ? ? ? ? ? ? ? ? ? ?  Defendants? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  ?§? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  TRAVIS COUNTY, TEXAS? ? ? 
? 
? ? ?  ? ? ?  ? ? ?  ? ? ?  ? ? ?  ? ? ?  ? ? ?  ? ? ?  ? ? ?  PLAINTIFF?’S ORIGINAL PETITION, MOTION FOR TEMPORARY
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?  RESTRAINING ORDER AND MOTION FOR TEMPORARY INJUNCTION
? 
TO THE HONORABLE JUDGE OF SAID COURT:
? 
COMES NOW WILLIAM B. GAMMON, Plaintiff, complaining of CIRCLE C HOMEOWNERS ASSOCIATION, INC., STEVEN P. BARTLETT, KEN RIGSBEE and JIM O?’REILLY, Defendants, and for cause would respectfully show:
1.? ? ? ? ?  Pursuant to Texas Rule of Civil Procedure 190.3, Plaintiff says that discovery should be conducted under Level 3.
2.? ? ? ? ?  Venue is proper in the District Court of Travis County Texas, as all natural defendants reside therein and the corporate defendant maintains its business address and registered office therein.
3.? ? ? ? ?  Plaintiff is an individual who resides in the Circle C Ranch subdivision of Austin, TravisCounty, Texas.?  Defendant, Circle C Homeowners Association, Inc. (CCHOA) is a Texas Nonprofit Corporation.?  Its registered office is 2304 Hancock Drive, #4, Austin, TX 78756 and its registered agent is Steven P. Bartlett.?  Although required by Tex. Rev. Civ. Stat. Art. 1396 ?– 2.05(2) to continuously maintain in Texas a registered agent whose business office is identical with the registered office, Plaintiff asserts on information and belief that the registered office of the corporation is the offices of Giles & Shea and is not the business office of Steven P. Bartlett.?  Steven P. Bartlett (Bartlett) is an individual resident of Travis County, Texas and may be served with process at his business office 1000 Westbank Drive, Suite 2C, Austin, Texas 78746.?  Ken Rigsbee (Rigsbee) is an individual resident of Travis County, Texas and may be served with process at his home at 6406 Old Harbor Lane, Austin, Texas 78739.?  Jim O?’Reilly (O?’Reilly) is an individual resident of Travis County, Texas and may be served with process at his businessoffice at 111 Congress, Suite 1900, Austin, Texas 78701.?  Any of the above can accept service on behalf of CCHOA.
4.? ? ? ? ?  Plaintiff is a homeowner and member of Defendant CCHOA.?  Defendants Bartlett, Rigsbee and O?’Reilly compose the board of directors of Defendant CCHOA (the Board).?  Plaintiff brings suit against Defendants pursuant to the Uniform Declaratory Judgments Act as set forth in the Texas Civil Practice and Remedies Code, ?§37.001 et seq. seeking a declaration of rights, status, and legal relations as set forth in the Articles of Incorporation, By-Laws, and Declaration of Covenants, Conditions and Restrictions for Circle C Ranch Subdivision (the Declaration) which documents set forth certain rights and duties of the members of CCHOA and are attached hereto as Exhibits 1, 2, and 3, respectively.? ?  These documents together are sometimes referred to herein as the Governing Documents.
5.? ? ? ? ?  Plaintiff says that numerous disputes have arisen involving the members of CCHOA and the conduct of the Board of Directors and that a real and substantial controversy exists involving genuine conflicts of tangible interest and not merely theoretical disputes.? ?  Plaintiff asks the Court to determine the questions of rights and duties as set forth below and seeks this relief so that these controversies will be resolved by the declarations sought.
6.? ? ? ? ?  BACKGROUND FACTS ?– ANNUAL MEETING AND ELECTION
Pursuant to the Governing Documents, management of the affairs of the CCHOA shall be by a Board of Directors, which directors shall be elected by the members at the annual meeting which occurs on March 26.?  Each year a single director is elected to serve a three-year term.? ?  The Declaration sets out how and when voting is to occur, the eligibility of voters, and the number of votes that each voter is entitled to cast.?  The Declaration set up two classes of voters:?  Class A (homeowners) and Class B (developer).?  The Declaration states that Class B is entitled to three votes for every vote of Class A.?  Class B would be converted to class A no later than December 31, 2002.? ?  The March 26, 2003 election is the first election in the history of the CCHOA in which a contest has occurred.?  The director whose term is expiring is Steve Bartlett, a non-member, non-resident developer who has been on the Board since its inception.?  He is seeking re-election and is supported by the other Board members, Rigsbee and O?’Reilly, who have endorsed him.? ? 
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