Date: 06-06-2013

Case Style: Eric Anthony Mareshie v. Bixby Woodcreek Homeonwers Association

Case Number: CV-2012-913

Judge: Mary Fitzgerald

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Christopher Camp and J. Derek Ingle

Defendant's Attorney: E. Anthony Mareshie, Rachiel C. Mathis, and Ashley Epperly

Description: Eric Anthony Mareshie and Gregory A. Horwith sued the Bixby Woodcreek Homeonwers Association, James E. Thompson, Kamran K. Momeni, Jason W. Bennett and Reza Ghavami seeking an injunction against the Defendants claiming:

1. This is an action for a tempora restraining order and temporary and permanent injunctions to prevent Defendants from violating the governing documents of Woodcreek, and the provisions of the Real Estate Development Act, OKLA. STAT. tit.
60 § 851 et seq. Specifically, Plaintiffs ask this Court to enter an order enjoining
Defendants:

(A) From causing any maintenance, landscaping, and/or “remediation” project(s) to be performed one or both of two (2) stormwater detention facilities (commonly referred to “Reserve A” and “Reserve B”), to the extent that such project(s):

(i) Is designed to alter, convert, or improve the characteristics of Reserve B in order that Reserve B may be used in a manner exceeding or inconsistent with its intended function (i.e., to “permit[] the flow, conveyance, retention, detention and discharge of stormwater runoff from the vañous lots within ‘Woodcreek’ and from properties not included within ‘Woodcreek”) as established in Article 1(H) of Woodcreek’s Deed of Dedication and Restrictive Covenants;

(ii) Would materially alter the grade or contour within Reserve B (in violation of Article J(f{)(4) of Woodcreek’s Deed of Dedication and Restrictive Covenants);

(iii) Constitutes a capital improvement that would require the levying of a special assessment for the purpose of defraying, in whole or in part, any related construction, reconstruction, repair, or replacement costs; and/or

(iv) Would require or result in the expenditure of more than $4,000.00, without first obtaining prior approval for the

project(s)/expenditure(s) from at least fifty-one percent (5 1%) of the homeowners (as required by Article X, § 2 of the Bylaws of Woodcreek Homeowners’ Association, Inc., Amended September
30, 2010;

(B) From formally or informally contracting or entering into any agreement with any Woodcreek member (including, without limitation, Rick Dodson) for any repairs, maintenance, or services (including, without limitation, landscaping, dredging, weed control, and “pond” maintenance/remediation);

(C) From unreasonably restricting access to, or otherwise limiting any homeowner’s right (under Article XIX of the Bylaws of Woodcreek Homeowners’ Association, Inc., Amended September 30, 2011) to inspect, Woodcreek’s books, records, and papers; and

(U) From fixing the annual maintenance assessment (also referred to as the “annual dues”) for January 1, 2013 through December31, 2013, at an amount in excess of the maximum permitted by Article IV, § 3 of Woodcreek’ s Declaration of Association Covenants and Restrictions (45), from demanding that any member of Woodcreek pay any amount in excess of the limit imposed by Article IV, § 3, and/or from refusing to refund any such amount already paid by any Woodcreek member.

Additionally, Plaintiffs seek declaratory’ relief and attorney fees and costs pursuant to OKLA. STAT. tit. 60 § 856.
PARTIES AN]) JURISDICTION

2. Plaintiff Eric Anthony Mareshie is a resident of the City of Bixby, Tulsa County, State of Oklahoma.

3. Mareshie holds title to a separately owned lot in Woodcreek, a subdivision in the City of Bixby and a “real estate development” as defined by OKEA. STAT. tit. 60 § 851 (the “Woodcreek Subdivision”), more particularly described in the General Warranty Deed dated June 1, 2007 (Tulsa County Clerk Doe. #2007065203) as follows:
Lot Fifteen (15), Block Six (6), WOODCREEK, a Subdivision in the City of Bixby, Tulsa County, State of Oklahoma, according to the Recorded P1 at thereof. . . together with all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining forever.
jEx.A

4. Plaintiff Gregory A. Horvath is a resident of the City of Bixby, Tulsa County, State of Oklahoma.

5. Horvath holds title to a separately owned lot in the Woodereek Subdivision, more particularly described in the General Warranty Deed dated July 11, 2007 (Tulsa County Clerk Doe. #2007079118) as follows:

Lot Thirteen (13), Block Four (4), WOODCREEK, a Subdivision in the City of Bixby, Tulsa County, State of Oklahoma, according to the Recorded Plat thereof. . . together with all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining forever,
[Lx. BI

6. Defendant Bixby Woodcreek Homeowners’ Association, Inc., is an Oklahoma corporation that was formed on July 7, 2006, and currently is in good standing, licensed to do business in the State of Oklahoma, and operating and doing business within the City of Bixby, Tulsa County, State of Oklahoma. [Lx. C; Lx. D]

7. Bixby Woodcreek Homeowner’s Association, Inc. qualifies as an “owners association” under OKr,A. STAT. tit. 60 § 852.

8. Defendant James K Thompson is a resident of the City of Bixby, Tulsa County, State of Oklahoma, and a member of Woodcreek’s Board of Directors.

9. Thompson is Co-Trustee of the Kathern F. Thompson Revocable Living Trust, and as such holds title to a separately owned lot in the Woodcreek Subdivision, more particularly described in the General Warranty Deed dated May 30, 2007 (Tulsa County Clerk Doe. # 2007064626) [Ex. Ej and the Quit-Claim Deed dated June 3, 2009 (Tulsa County Clerk Doc. #2009055348) [Ex. F] as follows:

Lot Fourteen (14), Block Four (4), WOODCREEK, a Subdivision in the
City of Bixby, Tulsa County, State of Oklahoma, according to the
Recorded Plat thereof.

together with all and singular hereditaments and appurtenances thereunto belonging.
[See Ex. E; Ex. Fj

10. Defendant Kamran K. Momeni is a resident of the City of Bixby, Tulsa County, State of Oklahoma, and a member of Woodcreek’s Board of Directors.

11. Momeni holds title to a separately owned lot in the Woodereek Subdivision, more particularly described in the Joint Tenancy Warranty Deed dated January 30, 2008 (Tulsa County Clerk Doc. ft 2008011844) as follows:
Lot Thirty-Eight (38), Block One (1), WOODCREEK, a Subdivision in the City of Bixby, Tuba County, State of Oklahoma, according to the Recorded Plat thereof.

Property Address: 7214 East 111th Place South, Bixby, OK 74008

Together with all the improvements thereon and the appurtenances thereunto belonging[.]

Ex. G]

12. Defendant Jason W Bennett is a resident of the City of Bixby, Tulsa County, State of Oklahoma, and a member of Woodcreek’ s Board of Directors.

13. Bennett holds title to a separately owned lot in the Woodcreek Subdivision, more particularly described in the Joint Tenancy Warranty Deed dated April 27, 2007 (Tulsa County Clerk Doc. # 2007048445) as follows:
Lot Three (3), Block Six (6), WOODCREEK, a Subdivision in the City of Bixby, Tulsa County, State of Oklahoma, according to the Recorded Plat thereof.

Property Address: 7274 East 111th Place Bixby, OK 74008

Together with all the improvements thereon and the appurtenances thereunto belonging[ .1
[Ex. Hf

14. Defendant Reza Ghavani is a resident of the City of Bixby, Tulsa County, State of Oklahoma, and a member of Woodoreek’s Board of Directors.

15. Ghavani holds title to a separately owned lot in the Woodcreek Subdivision, more particularly described in the General Warranty Deed dated February 9, 2008 (Tulsa County Clerk Doc. #2008022891) as follows:

Lot Twenty-Seven (27), Block Six (6), WOODCREEK, a Subdivision in the City of Bixby, Tulsa County, State of Oklahoma, according to the Recorded Plat thereof

Property Address: 7318 East ll3’ Ste South, Bixby, OK 74008

Together with all the improvements thereon and the appurtenances thereunto belonging[.j
[Ex. I]

16. Plaintiffs Mareshie and Horvath, along with Defendants Thompson, Momeni,
Bennett, and Ghavani, each own a “lot” [see fix. L, p. 1, Art. II, § 4J in the
Woodcreek Subdivision, and as such are “members” of the Bixby Woodcreek
Homeowner’s Association. [See Li Lx. .1, p. 3, Art. UI, § 1; Ex. K, p. 11, § 111(B);
Lx. L, pp. 1-2, Art II, § 5 & 7; p. 2, Art III, § 11

17. All acts or omissions complained of took place within the City of Bixby, Tulsa County, State of Oklahoma.

18. Jurisdiction and venue are proper in this Court pursuant to OKLA. STAT. tit. 12 § 134 and 2004(F).

FACTS

A. ESTABLISHMENT OF BIxEY WOODCREEK HOMEOWNERS’ ASSOCIATION AND ITS BYLAWS

19. The Woodcreek Subdivision is a community of single-family residential lots containing certain common areas. [Lx. J, p. 11

20. On May 5, 2005, Plat No, 5872 [Lx. MJ, the plat for the Woodcreek Subdivision, along with the accompanying Deed of Dedication and Restrictive Covenants for Woodcreek (the “Deed of Dedication”) [Ex. K], was filed of record in the office of the Tulsa County Clerk as Doc. # 2005054172.

21. On or about July 7, 2006, Richard L. Dodson, Danny R. Brumble, and Karen R. Dodson executed Woodereek’ s Certificate of Incorporation, which was ultimately filed with the Oklahoma Secretary of State on September 26, 2007 (the “Certificate of Incorporation”). [Lx. D, p. 1]

22. Woodcreek is the not-for-profit “owners association” for the Woodcreek Subdivision [fix. K, p. 2, Art. I, § 11 and, as such, is governed by the Oklahoma Real Estate Development Act (the “Act”), OKLA. STAT, ut. 60 § 851 et seq. Woodcreek’s
Certificate of Incorporation also expressly authorizes Woodcreek’s Board of
Directors (the “Board”) to adopt bylaws. [Ex. D, p. 5, Art. Viii

23. Woodcreek’ s Declaration of Association Covenants and Restrictions was filed of record in the office of the Tulsa County Clerk on October 25, 2007, as Doe. # 2007120124 (the “Declaration”). [Ex. J, p. 11

24. On or about September 30, 2011, in a proper exercise of the authority granted to it by the Certificate of Incorporation, the Board adopted the Bylaws of Woodcreek Homeowners’ Association, Inc., Amended September 30, 2011 (the “Amended Bylaws”), [Ex. Li

25. The activities and affairs of Woodcreek are managed by its Board of Directors (the “Board”). [Ex. L, p. 3, Art. IV, § 1] Woodcreek’ s Board and members, however, must at all times act within the parameters of the Deed of Dedication, Certificate of Incorporation, Declaration, and Amended Bylaws.

26. Woodcreek’s Deed of Dedication, Certificate of Incorporation, Declaration, and Amended Bylaws must be construed together because they expressly incorporate each other by reference and collectively constitute the restrictions and covenants to which every Woodcreek member is bound.

27. Sections 852, 854, and 856 of the Act obligate members of a real estate development to comply with the restrictions and covenants of the development (which in this case includes, without limitation, the rights and obligations imposed by Woodcreek’s Deed of’ Dedication, Certificate of Incorporation, Declaration, and Amended Bylaws).

28. Article VII, § 3 of the Declaration provides, in pertinent part:

[A]ny owner ... shall have the right to enforce, by any proceeding at law or in equity, all easements, restrictions, and covenants now or hereafter imposed by the provisions of this Declaration.

[Ex. J, p. 8, Art VII, § 3] In turn, the Declaration expressly references, and mandates compliance with, the rights and obligations established by the Deed of Dedication, the Certificate of Incorporation, and the Bylaws of the Association. [See Ex. J, p. 4, Art. ifi, § 3; Art. IV, § 21

29. Pursuant to OKLA. STAT. tit. 60 § 856, a homeowner is entitled to bring action against any other person owning property in the Woodcreek Subdivision to enforce any of the restrictions or covenants of the real estate development (including, without limitation, any restrictive covenants imposed by Woodcreek’s Deed of Dedication, Certificate of Incorporation, Declaration, and Amended Bylaws).

B. ADMINISTRATION AND MANAGEMENT

(i) General Requirements

30. Woodcreek’s Board and its officers at all times owe a fiduciary duty to the members of Woodcreek.

31. It is incumbent upon the Board and its officers to protect the rights and interests of the members of Woodcreek at all times.

32. Article III of the Amended Bylaws, which governs meetings of the members of Woodcreek, provides, in pertinent part:
Section 4. Special Meetings. Special meetings of the members may be called at any time by the President or by the Board of Directors, or upon written request of the members who are entitled to vote one-hall’ (1/2) of all the votes of the membership.

Section 5. Notice of Meetings. Written notice of each meeting of the members shall be given by, or at the direction of the Secretary or person authorized to call the meeting, by the most cost-effective means including electronic mail, a copy of the notice, postage prepaid, at least 15 days before each meeting to each member entitled to vote, addressed to the member’s address last appearing on the books of the Association, or supplied by the member to the Association for the purpose of notice. The notice of meeting shall specify the place, day and hour of the meeting and, in the case of a special meeting, the purpose of the meeting.

Section 6. Act of Members. Except as otherwise provided in the Deed of Dedication accompanying the Plat of Woodcrcek, the Certificate of Incorporation of the Association, the Association Declaration (as hereinafter defined), or these Bylaws, a vote of the members entitled to cast, or of proxies entitled to case, fifty-one percent (51%) of the votes of the membership present at a meeting where a quorum is achieved (by attendance or by proxy) and the action is taken shall be required for any act of the members.

(ii) Expenditures and Assessments

33. The Amended Bylaws limit the expenditures that the Board may make without prior approval of the members of Woodcreek. Specifically, Article X, § 2 of the Amended Bylaws provides:
Any and all prospective purchases and transactions paid for from the annual dues of the Association or funds regardless of source in excess of four thousand dollars ($4,000.00) shall be approved by a majority vote of its members, Proxy votes shall not be permitted.

[Ex. L, p. 9, Art. X, § 21

34. The Declaration also limits the amount by which the Board may increase the annual assessment for each lot without prior approval of the members of Woodcreek. Specifically, Article IV, § 3 provides:

Maximum Annual Assessment. The maximum annual assessment shall be Four Hundred Fifty Dollars ($450.00) per Lot, provided however, the Board of Directors may increase each year, subsequent to the initial assessment year, the maximum assessment by the percentage increase, if any, of the Consumer Price Index occurring over the twelve (12) months ending sixty (60) days prior to the current assessment period, or ten percent (10%), whichever is greater. “Consumer Price Index” shall mean the index published by the U.S. Department of Labor for the area including Tulsa, Oklahoma. Increases in the maximum annual assessment greater than those above provided for shall require the assent of fifty-one percent (51%) of the eligible votes of each class of the members who are voting in person or by proxy at a meeting duly called for this purpose. The Board of Directors may fix the annual assessment at an amount not in excess of the maximum.
jEt K, pp. 4-5, Art. IV, § 3]2

35. Similarly, the Declaration places restrictions on the Board’s ability to levy special
assessments. Article IV, § 4 provides:

Special Assessments for Capital Improvements. In addition to the annual maintenance assessments set forth within [Art. IV, § 3), the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair, or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided however, any such assessment shall require the assent of 2/3 of the eligible votes of each class of the members who are voting in person or by proxy at a meeting duly called for this purpose.
jEx. K, p. 5, Art. IV, § 41

36. In the event that it wishes to hold a meeting for the purpose of increasing the annual dues by an amount in excess of the maximum permitted by § 3, or for levying a special assessment under § 4, the Board, not less than twenty (20) days nor more than sixty (60) days in advance of such meeting, must provide written notice of the meeting to all Woodcreek members. [Ex. K, p. 5, Art. IV, § 41

(iii) Contracts for Repairs, Maintenance, and Services

37. Article XV of the Amended Bylaws establishes the parameters within which the
Association may contract with third parties for repairs, maintenance, and services (including, without limitation, landscaping, pool servicing, pond maintenance, and
pooi house improvements).

38. Article XV, § 3 of the Amended Bylaws provides:

Members Prohibited. No contract for services shall be awarded to any Woodcreek member regardless of standing.
Ptx.L,p. 1i,ArtXV,3I

(iv) Availability of Books jtecords, and Papers for Inspection by Members

39. Article XIX of the Amended Bylaws provides:

The books, records and papers of the Association shall at all times, during reasonable business hours, be subject to inspection by any member. The Association Declaration, the Certificate of Incorporation, and the Bylaws of the Association shall be available for inspection by any member at the principal office of the Association.

[Ex. L, p. 12, Art XIX

C. CREATION AND Pnu’osE OF STOEMWATER DETENTION FACILITIES

40. When the Woodcreek Subdivision was platted, two areas of low-lying, unimproved land -- 5,2017 acres near the southwest corner of the Woodcreek Subdivision (“Reserve A”) and 5.3254 acres situated at the southeast corner of the Woodereek Subdivision (“Reserve B”) -- were set aside as “stormwater detention facilities” jEt K, p. 11, § Ifl(A)1 that were to be used for the express purpose of “permitting the flow, conveyance, retention, detention and discharge of stormwater runoff" emanating both from within and outside the Woodcreek Subdivision. ISee Ex. K, p. 3, § 1(11); Ex. Ml

41, Specifically, Section 11H) of the Deed of Dedication provides:

DETENTION EASEMENT - RESERVE “A” AND RESERVE “B”

1. The owner does hereby dedicate to the City of Bixby, Oklahoma for public use (subject to easements of record) a perpetual easement on, over, and across the property designated and shown on the accompanying plat as Reserve “A” and Reserve “B” (hereinafter referred to as the “Detention Easement Areas”) for the purpose of permitting the flow, conveyance, retention, detention and discharge of stormwater runoff from the various lots within “Woodcreek” and from properties not included within “Woodcreek”.

2. Detention, retention, and other drainage facilities constructed within the detention easement areas shall be in accordance with standards and specifications approved by the City of Bixby, Oklahoma.

3. Detention, retention, and other drainage facilities shall be maintained by the Woodcreek Homeowners’ Association, to the extent necessary to achieve the intended drainage, retention, and detention_functions including repair of appurtenances and removal of obstructions and siltation and the Woodcreek Homeowner[sj’ Association shall provide customary grounds maintenance within the Detention Easement Area in accordance with the following standards:

A. Grass areas shall be mowed (in season) at regular intervals not exceeding four weeks.

B. Concrete appurtenances shall be maintained in good condition and replaced if damaged.

C. The Detention Easement Area shall be kept free of debris.

4. In the event the Woodcreek Homeowners’ Association should fail to properly maintain the detention, retention, and other drainage facilities or, in the event of the placement of an obstruction within, or the alteration of the grade or contour within the Detention Easement Area, the City of Bixby, Oklahoma, or ifs designated contractor may enter and perform maintenance necessary to the achievement of the intended drainage functions and may remove any obstruction or correct any alteration or grade of contour, and the cost thereof shall be paid by the Woodcreek Homeowner[sJ’ Association. In the event the Association fails to pay the cost of maintenance after completion of the maintenance and receipt of a statement of costs, the City of Bixby, Oklahoma, may file of record a copy of the statement of costs, and thereafter the costs shall be a lien against each lot within “Woodcreek”, provided however, the lien against each lot shall not exceed 1/l5lth of the costs. A lien against established as above provided may be foreclosed by the City of Bixby, Oklahoma.

[Ex. K, § 1(H)]4

42. Pursuant to the Deed of Dedication, the Detention Easement Areas (including Reserve B) were set aside to detain and control the flow of excess stormwater, to prevent flooding, and to protect downstream property from excess runoff. [See Ex.
K, § 1(11)]

43. Nowhere does the Deed of Dedication indicate that Reserve B was meant to serve as a park-like recreation area, be professionally landscaped, or feature a permanent, sustainable “pond” stocked with fish. LSee Lx. K, § 1(11)]

44. The current members of the Board acknowledge that the “job” of Reserve B is to serve as a “detention pond” for stormwater [Ex. N] and to act as the “settling basin for the drainage system, protecting downstream properties by capturing water borne solids.” [Ex. 0, p. 10] They also acknowledge the temporary nature of any stormwater detained by Reserve B (noting that “[i]n dry times, the water evaporates” and recedes to a level too shallow and warm “for fish to thrive.” [Lx. 0, p. 9]

B. MISMANAGEMENT BY DEFENDANTS

45. Defendants have embarked on a “pond remediation” and “improvement” project [see Lx. F, p. 2; Ex. Q, pp. t & 3-41, characterized by Defendant Thompson as a “big ticket item” [see Lx. NI, that involves or entails:

a. Reserve B being “dredged out” to a “sustainable depth” [Ex. Q, p. 3; see also Lx. N, ¶ 7];

b. The removal of approximately six hundred (600) truckloads of soil from Reserve B lEx. 0, p. 10], necessarily altering its grade or contour (in violation of the Deed of Dedication’s prohibition against any such alteration by Woodcreek [see Lx. K, p. 6, Art. 1(H)(4)]);

c. Upgrading the landscaping in Reserve A and Reserve B “to make the [stormwater detention facilities] into attractive areas for members to enjoy” Ex. S, p. 2] and to “turn it into an asset for Woodcreek” [Lx. F, p. 21 (which exceeds the intended use of Reserve B as a stormwater detention facility); and

d. Causing Reserve B, in which fish have thus far been unable to thrive [Lx. 0, p. 9], to be stocked with or otherwise contain “[a] significant number of fish” [Ex. 0, p. 101 (which likewise exceeds Reserve B’s intended use as an area for the temporary detention of stormwater runoff).

46. According to the “Woodcreek HOA Budget for 2013” distributed by Defendants to Woodcreek’s members, Defendants plan several purchases and transactions in excess of four-thousand dollars ($4,000.00), including:

a. Weed spraying and removal around Reserve A and Reserve B, totaling $5,400.00 [Lx. S, p.21;

b. The servicing, repair, andior replacement of pumps in Reserve A and Reserve B, totaling $6,600.00 [Lx. S, p. 2]; and

c. A landscaping upgrade primarily targeting Reserve A and Reserve B, totaling $6,500.00. [Lx. S, p. 2]

47. Also impacting Woodcreek’s 2013 budget Defendants have announced that Woodcreek’s “share” of the cost to dredge Reserve B is $5,000.00, and that the Board intends to “get a loan to do the dredging this summer and pay it back after September [2012] when the dues [for 2013] start being paid.” [Lx. Q, p. 1, ¶ 1; pp. 3-41

48. Prior to budgeting any of the above-referenced items in excess of $4,000.00, the Board failed to conduct a vote that would result in a majority of Woodereek’s members approving such expenditures, thus constituting a violation by Defendants of Article X, § 2 of the Amended Bylaws, [Ex. L, p. 9, Art. X, § 21

49. Defendants state that they have entered into an “agreement in principle” with Rick Dodson (“Dodson”) to perform dredging of Reserve B (the “Dodson Agreement”). [Ex. Q, pp. 1 & 3; Lx. S, p. 2j

50. Dodson is a member of, or shareholder in, Brumble Dodson Construction, LLC, South Tulsa Land Trust, LLC [see Lx. Y], and/or Brumble Construction Co., all of which own lots in the Woodcreek Subdivision (respectively, Lot 6 of Block 2 [Lx. VI, Lot 29 of Block 6 [Ex. W], and Lot 4 of Block 2 [Lx. XI). Dodson is therefore an “owner” under the Declaration and Amended Bylaws [see Lx. J, p. 2, Art. I, § 1; Lx. L, p. 1, Art. [1, § 51 and a “member” of Woodcreek under the Amended Bylaws.

[See Lx. L, p. 2, Art. II, § 7]

51. As such, the Dodson Agreement, under which the Board has agreed to allow Dodson
to perform dredging services, ‘constitutes a violation by Defendants of the prohibition
against the Board contracting for services with Woodcreek members. [Lx. L, p. 11,
Art. XV, § 3]

52, On July 9, 2012, Plaintiff Horvath requested that be allowed to see the Dodson Agreement as soon as possible. LSee Ex. R, p. 2]

53. To date, Defendants have not honored Horvath’s request to see the Dodson Agreement, in violation of their obligation to do sounder the Amended Bylaws. [Ex. L, p. 12, Art. XIX]

54. On July 14, 2012, the members of Woodcreek were notified that “[t]he Board of
Directors has set the annual dues [for 2013 at $550.00 for each property,” an increase
of twenty-two percent (22%), or $100.00, over the previous year’s figure of $450.00.
Woodcreek members were further notified that they must pay the $550.00 by
September 1, 2012. [Ex. Tj

55. At no time prior to the above-referenced dues increase did Defendants conduct a meeting or hold a vote regarding the planned increase of Woodcreek’s annual dues to obtain the assent of at least fifty-one percent (51%) of the Woodcreek members eligible to vote.

56. In failing to hold a meeting and conduct a vote resulting in at least fifty-one percent (51%) of Woodcreek’ s eligible, voting members assenting to an increase of the annual dues to $550M0 (i.e., fifty-five dollars ($55.00) per lot over the ten percent (10%) maximum increase permitted absent a vote), Defendants have breached the covenants to which they are bound and disregarded the restrictions imposed upon them by Article IV, § 3 and 5 of the Declaration. [See Ex. J, pp. 4-5, Art. IV, § 3 &5]

57. Neither may the fifty-five dollars ($55.00) that the Board is unlawfully attempting to charge to each lot as part of the annual dues assessment be treated by the Board as a one-time special assessment. The Board failed to comply with Article IV, § 4 of the Declaration, which requires the Board, before levying a special assessment, to conduct a vote that results in at least in two-thirds of Woodcreek’s eligible, voting members assenting to the proposed special assessment. [See Ex. .J, p. 5, Art IV, § 4 &5i

FIRST CLAIM FOR RELIEF:
ENFORCEMENT OF COVENANTS AND RESTRICTIONS
PURSUANT To OlGA. STAT. tit. 60 § 586

For the First Claim for Relief, Plaintiffs re-allege and incorporate by reference the foregoing paragraphs, and further state upon information and belief and/or in the alternative:

58. On multiple occasions (including, but not limited to, those instances specifically set forth herein), Defendants have failed to comply strictly with Woodcreek’s covenants and restrictions, as embodied in the Deed of Declaration, the Certificate of Incorporation, the Declaration, and the Amended Bylaws.

59. Plaintiffs have been aggrieved by such failure on the part of Defendants.

60. As members of Woodcreek, Plaintiffs have standing under OKLA. STAT. tit. 60 § 856 to bring an enforcement action against Defendants, who are also members of Woodcreek.

WHEREFORE, Plaintiffs Eric A. Mareshie and Gregory A. Horvath pray that this Court enter an order awarding judgment in Plaintiffs’ favor on their First Claim for Relief, granting Plaintiffs declaratory and injunctive relief (both temporary and permanent), compelling Defendants to comply with, and otherwise enforcing, Woodcreek’ s covenants and restrictions (as more specifically set forth hereinabove), and awarding costs and attorney fees, along with any
other relief, legal or equitable, to which Plaintiffs are entitled or that this Court deems just and proper.

SECOND CLAIM FOR RELIEF:
BREACIEL OF CONTRACT

For the Second Claim for Relief, Plaintiffs re-allege and incorporate by reference the foregoing paragraphs, and further state upon information and belief and/or in the alternative:

61. On multiple occasions (including, but not limited to, those instances specifically set forth herein), Defendants have failed to comply strictly with Woodcreek’s covenants and restrictions, as embodied in the Deed of Declaration, the Certificate of Incorporation, the Declaration, and the Amended Bylaws.

62. Defendants’ failure to comply with Woodcreek’s covenants and restrictions constitutes a breachof contract.

63. Plaintiffs have suffered damages and have otherwise been aggrieved as a result of Defendants’ failure to comply with Woodcreek’s covenants and restrictions.

WHEREFORE, Plaintiffs Eric A. Mareshie and Gregory A. Horvath pray that this Court enter an order awarding judgment in Plaintiffs’ favor on their Second Claim for Relief, granting Plaintiffs declaratory and injunctive relief (both temporary and permanent), compelling Defendants’ specific performance under Woodereek’s covenants and restrictions (as more specifically set forth hereinabove), and awarding Plaintiffs any and all actual and compensatory damages incurred as a result of Defendants’ breach, costs and attorney fees, and any other relief, legal or equitable, to which Plaintiffs are entitled or that this Court deems just and proper.

Thwo CL4IM FOR RELIEF:

INJUNCTJON — OKLA. STAT. TIT. 12 § 1381 d seq.

For the Third Claim for Relief, Plaintiffs re-alleges and incorporate by reference the foregoing paragraphs, and further state upon information and belief and/or in the alternative:

64. Defendants’ acts and omissions violate and contravene Woodcreek’s covenants and restrictions (as embodied in the Deed of Declaration, the Certificate of Incorporation, the Declaration, and the Amended Bylaws).

65, Pursuant to OKLA. STAT. tit. 12 § 1382, injunctive relief is specially authorized in this case because OKLA. STAT. tit. 60 § 856 expressly permits the Court, upon the bringing of an action by a person owning property in a real estate development, to enforce the restrictions and covenants of such real estate development against any other person owning property therein.

66. Additionally, Article VII, § 3 of the Declaration expressly grants Plaintiffs “the right to enforce, by any proceeding at law or in equity, all easements, restrictions, and covenants now or hereafter imposed by the provisions of this Declaration.”

67. Plaintiffs have no adequate remedy at law. Absent an injunction, Defendants will continue to act in derogation of Woodcreek’s covenants and restrictions.

68. Currently, Defendants’ preparation of Reserve B for immediate dredging, which Defendants acknowledge will involve the removal of approximately 600 truckloads of soil from the affected tract of land in which Plaintiffs have an undivided ownership interest, is already underway. Absent the entry of a temporary restraining order to maintain the status quo until there can be a full evidentiary hearing on Plaintiffs’ request for injunctive relief, the characteristics of the real property will be drastically altered and Plaintiffs will suffer immediate and irreparable injury.

69, In addition, all Woodcreek members risk deprivation of their property, both real and personal, as a result of Defendants’ unauthorized acts. The City of Bixby is expressly authorized to assess significant charges to correct any alteration by Defendants to the grade and contour of Reserve B. If not paid, a lien may be filed affecting the lot of each and every Woodcreek member.

70. The harm to Plaintiffs if an injunction is not granted outweighs the harm that may be occasioned by Defendants should this Court require them to comply with Woodcreek’s covenants and restrictions.

71. The public interest favors the issuance of a temporary restraining order and temporary injunction in order to enforce Woodcreek’ s covenants and restrictions under OKLA. STAT. tit. 60 § 856, and to prevent continuing and/or further violations thereof.

72. In furtherance of Plaintiffs’ request for a temporary restraining order, the undersigned has prepared and attached to this Petition a certification that complies with the requirements of OKLA, STAT. tit. 12 § 1384.1(B)(2).

WHEREFORE, Plaintiffs Eric A. Mareshie and Gregory A. Horvath respectfully request that this Court grant judgment in their favor on their Third Claim for Relief and enter an order:

(A) Temporarily and permanently enjoining and restraining Defendants:

(i) From causing any maintenance, landscaping, and/or “remediation” project(s) to be performed one or both of two (2) stormwater detention facilities (commonly referred to “Reserve A” and “Reserve B”), to the extent that such project(s):

(a) Is designed to alter, convert, or improve the characteristics of Reserve B in order that Reserve B may be used in a manner exceeding or inconsistent with its intended function as a stormwater detention facility;

(b) Would materially alter the grade or contour within Reserve B;

(c) Constitutes a capital improvement that would require the levying of a special assessment, without first obtaining prior approval for the improvement/assessment from at least two-thirds (2/3) of the homeowners; and/or

(d) Would require or result in the expenditure of more than $4,000.00, without first obtaining prior approval for the project(s)/expenditure(s) from at least fifty-one percent (5 1%) of the homeowners;

(ii) From contracting or entering into any agreement with any Woodcreek member (including Rick Dodson) to perform work on or for he benefit of Woodcreek’s common areas;

(iii) From unreasonably restricting access to, or limiting any homeowner’s right to inspect, Woodcreek’ s books, records, and papers;

(iv) From fixing, collecting, or retaining annual dues for the period of January 1, 2012, through December 31, 2013, in an amount more than $495.00 per lot without first complying with the prerequisites of Article IV, § 3 and 5 of the Amended Bylaws; and/or

(v) From treating the fifty-five dollars ($55.00) unlawfully charged to each lot as a special assessment, or from levying any other special assessment,

without first complying with the prerequisites of Article IV, § 4 and 5 of the Amended Bylaws;

(2) Granting any and all declaratory relief consistent with, or in furtherance of, the above-referenced injunctive relief sought by Plaintiffs;

(3) Ordering Defendants, pursuant to OKLA. STAT. tit. 60 § 856, Article VII, § 3 of the Declaration, and/or Section IV(A) of the Deed of Dedication, to reimburse Plaintiffs for the attorney fees and costs reasonably incurred by them in the prosecution of this matter; and

(4) Granting Plaintiffs such other and further relief, legal or equitable, to which they are entitled or that the Court deems just and proper.


On July 26, 2012, the Court issued a temporary restraining order which stated:

NOW ON this 26th day of July, 2012, at 4:30 p.m., the matter of the Plaintiffs
Eric Anthony Mareshie and Gregory A. Horvaths’ Petition for Temporary Restraining Order pursuant to 12 OS. § 1384.1 et seq. and 60 0.5. § 856, comes before the Court. For purposes of this Order, the Court herein adopts and incorporates for reference the Plaintiffs’ entire Petition for Temporary Restraining Order and Temporary and Permanent Injunction, the verification of Plaintiff Eric Anthony Mareshie, and the Declaration of Plaintiffs’ attorney, Christopher L. Camp. The Court, after reviewing all pleadings and court documents on file, hearing argument of counsel, and otherwise being frilly advised as to the premises, FINDS AS FOLLOWS:

1. The Tulsa County District Court has personal jurisdiction over the Plaintiffs and
Defendants; has jurisdiction over the subject matter of the Petition for Temporary Restraining
Order and Temporary and Permanent Injunction; and further that the Tulsa County District
Court is the proper venue for this matter to be heard and adjudicated;

2. The Plaintiffs have complied with the notice requirements set forth in 12 OS. §
1384.1, and have sufficiently shown that Plaintiffs will suffer immediate, irreparable harm if this Temporary Restraining Order is not issued, namely:

a. Defendants are causing “Reserve B” (to which Plaintiffs have an undivided ownership interest) to be prepared for immediate dredging, which Defendants have acknowledged will involve the removal of approximately 600 truckloads of soil from the affected tract of land in which Plaintiffs have an undivided ownership interest. These preparations are already underway. Absent the entry of a temporary restraining order to maintain the status quo until there can be a full evidentiary hearing on Plaintiffs’ request for injunctive relief, the characteristics of the real property will be drastically altered and Plaintiffs will suffer immediate and irreparable injury.

b. In addition, all Woodcreek members risk deprivation of their property, both real and personal, as a result of Defendants’ unauthorized acts. The City of Bixby is expressly authorized to assess significant charges to correct any alteration that Defendants are now attempting to make to the grade and contour of Reserve B. Woodcreek’s failure to pay such charges are likely to result in a lien being filed by the City of Bixby affecting the lot of each and every Woodcreek member.

c. The harm to Plaintiffs if a temporary restraining order is not granted outweighs the harm that may be occasioned by Defendants should they have to wait a negligible period of time before they can be heard by the
Court regarding whether or not they should be compelled to comply with Woodcreek’ s covenants and restrictions.

d. Finally, the public interest favors the issuance of a temporary restraining order and temporary injunction in order to enforce Woodcreek’s covenants and restrictions under OKLA. STAT. tit. 60 § 856
The Court therefore has the power and authority to issue a temporary restraining order;

3. That a temporary restraining order should be issued from this Court, temporarily enjoining and restraining the Defendants:

(A) From causing any maintenance, landscaping, and/or “remediation” project(s) to be performed one or both of two (2) stormwater detention facilities (commonly referred to “Reserve A” and “Reserve B”), to the extent that such project(s):

(1) Is designed to alter, convert, or improve the characteristics of Reserve B in order that Reserve B may be used in a manner exceeding or inconsistent with its intended function as a stormwater detention facility;

(2) Would materially alter the grade or contour within Reserve B;

(3) Constitutes a capital improvement that would require the levying of a special assessment, without first obtaining prior approval for the improvement/assessment from at least two-thirds (2/3) of the homeowners; and/or would require or result in the expenditure of more than $4,000.00, without first obtaining prior approval for the project(s)/expenditure(s) from at least fifty-one percent (51%) of the homeowners;

(4) From performing, or accepting or allowing any performance of, any contract or agreement between Woodcreek and any Woodcreek member (including Rick Dodson) for the performance of work on or for he benefit of Woodcreek’s common areas;

(5) From unreasonably restricting access to, or limiting any homeowner’s right to inspect, Woodcreek’s books, records, and papers;

(B) From fixing, collecting, or retaining annual dues for the period of January 1, 2012, through December 31, 2013, in an amount more than $495.00 per lot without first complying with the prerequisites of Article W, § 3 and 5 of the Amended Bylaws; and/or

(C) From treating the fifty-five dollars ($55.00) unlawfully charged to each lot as a special assessment, or from levying any other special assessment without first complying with the prerequisites of Article IV, § 4 and 5 of the Amended Bylaws.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Plaintiffs’ Petition for Temporary Restraining Order is GRANTED and Defendants are hereby enjoined and restrained from committing any of the acts set forth in ¶ 3, supra, including all of its subparts.

IT IS FURTHER ORDERED, ADJUDGED, A DECREED that pursuant to 12 OS. § 1384.1 the Plaintiffs’ Petition for Temporaty Permanent Injunction is set for hearing on the ____ day of ________ 2012 at .w( the Tulsa County District Court, 500 South Denver, Tulsa, Oklahoma, Room ____

Plaintiffs’ have requested attorney fees and costs, and are not hereby prejudiced from making separate application for the same at the appropriate time.

Order Denying Temporary Injunction dated August 15, 2012.

on this 8th day of August, 2012 comes on for hearing Plaintiffs Petition for
Tempary Injunction. After reviewing Plaintiffs’ Petition, hearing testimony presented by
Plaintiffs and arguments of counsel for Plaintiffs and Defendant Bixby Woodcreek
Homeowners’ Association, Inc. (Defendant”), the Court hereby denies Plaintiffs’ Petition for a
Temporary Injunction. As such, the Temporary Restraining Order previously entered is lifted.

Although the Court has not made any specific finding of wrongdoing on the part of the
Defendant, the Court does instruct Defendant to abide by the Associations’ governing documents and when necessary, per the Bylaws, obtain the approval required by the homeowners of Bixby Woodcreek prior to expending funds of the Association. In addition, Defendant is ordered to make available the documents of the Association to the extent such documents are maintained in the ordinary course of business of the Association. However, Defendant is not ordered to
produce emails or other communications between its officers or third parties which are not maintained by its officers in the ordinary course of business.


Woodcreek Homeonwers Association, Inc. and Maes Thompson answered as follows:

Defendants state that for the same reasons the Court denied Plaintiffs’ temporary injunction, a permanent injunction is also not warranted in this matter. Furthermore, any allegations not specifically admitted are denied.
1. Paragraph I titled “Nature of Case and Summary of Relief Sought” only sets forth what the Plaintiffs are seeking and thus it does not call for an admission or a denial from these Defendants.

2. Defendants admit the allegations contained in paragraphs 2 through l6hbf the Petition.

3. Defendants admit that Bixby Woodcreek is located in the City of Bixby, Tulsa County, State of Oklahoma, but deny that the acts or omissions occurred as alleged in paragraph 17.

4. Defendants admit the allegations contained in paragraph 18 of the Petition as jurisdiction and venue are proper with this Court but otherwise deny the allegations contained in paragraph 18.

5. Defendants admit the allegations contained in paragraphs 19 through 21 of the Petition.

6. Defendants admit that Bixby Woodcreek is a not for profit owners’ association but, to the extent paragraph 22 asserts legal conclusions, these Defendants state that an answer is not required.

7. Defendants admit the allegations contained within paragraphs 23 through 25.

8. Defendants admit that Bixby Woodcreek is governed by the Deed of Dedication, Certificate of Incorporation. Declaration and Amended By-Laws but otherwise deny any additional inferences contained within paragraph 26 of the Petition.

9. Paragraph 27 of the Petition asserts a legal conclusion and as such an answer is not required of these Defendants.

10. Article 3, Section III or Article 4, Section II state as set forth in paragraph 28 of the Petition but otherwise Defendants admit the allegations contained within paragraph 28 of the Petition.

11. Paragraph 29 of the Petition asserts a legal conclusion and as such an answer is not required of these Defendants.

12. Defendants state that paragraph 30 of the Petition asserts a legal conclusion and as such an answer is not required of these Defendants.

13. Defendants deny the allegations contained in paragraph 31 of the Petition

14. Defendants admit that Article 3 of the Amended By-Laws sets forth the statements asserted in paragraph 32 of the Petition but deny that those are the only pertinent parts of Article 3.

15. Defendants admit the allegations contained in paragraphs 33, 34, 35 and 36 to the extent they quote portions of the Declaration of Association Covenants and Restrictions but deny the allegations contained within these paragraphs to the extent they cite Exhibit K which is the Deed of Dedication and Restrictive Covenants attached to the Petition.

16. Defendants admit the allegations contained in paragraphs 37, 38 and 39 of the Petition.

17. Defendants admit that two areas, Reserve A and Reserve B, were set aside as storm water detention facilities and admits that the Deed of Dedication states that Reserve A and Reserve B were dedicated to the City of Bixby for public use through a perpetual easement on, over and across the property for the purposes of permitting the flow, conveyance, retention, detention and discharge of storm water runoff from the lots within Woodcreek and from properties not within Woodcreek, but deny all other allegations contained in paragraph 40, including but not limited to reference to Exhibit K, page 3 as the proper cite for Section I, subpart H.

18. Defendants state that Section 1(H) of the Deed of Dedication speaks for itself and it appears that Plaintiff has properly quoted this portion of the Deed of Dedication in paragraph 41 of the Petition.

19. Defendants admit that the detention easement areas were in part set aside to detain and control excess storm water, prevent flooding and to protect downstream property but deny that these were the sole reasons for the construction of the detention and easement areas as asserted in paragraph 42 of the Petition.

20. Defendants admit that the language used within paragraph 43 is not stated specifically within the Deed of Dedication but does state that the Deed of Dedication requires that the Woodcreek Homeowners’ Association maintain the detention, retention and other drainage facilities and this maintenance of said facilities includes the repair of appurtenances and removal of obstructions and siltations as well as customary grounds maintenance.

21. Defendants deny the allegations as set forth within paragraphs 44, 45, 46, 47 and
48 of the Petition.

22. Defendants admit the allegations contained in paragraph 49 of the Petition.

23. Defendants deny the allegations as set forth within paragraph 50 of the Petition.

24. Defendants deny the allegations set forth within paragraph 51 of the Petition.

25. Defendants admit the allegations contained in paragraph 52 of the Petition.

26. Defendants deny the allegations contained within paragraph 53 of the Petition.

27. Defendants admit the allegations contained in paragraph 54 of the Petition.

28. Defendants admit the allegations contained in paragraph 55 of the Petition but further state that at the time of the increase, the Board was unaware of the limitation placed upon the annual dues increase. Once this limitation was brought to the Board’s attention, the annual dues were reduced by $55.00 so as to not violate the Declaration of Association Covenants and Restrictions and refunds were issued to those homeowners and members who had already paid their annual dues at the rate of $550.00.

29. Defendants deny the allegations as set forth within paragraphs 56 and 57 of the Petition.

30. Insofar as Plaintiffs reallege and incorporate by reference all foregoing paragraphs, Defendants hereby reassert all admissions and denials hereinabove set forth.

31. Defendants deny the allegations contained within paragraphs 58 and 59 of the Petition.

32. Defendants state that paragraph 60 of the Petition asserts a legal conclusion and as such an answer is not required of these Defendants.

33. Plaintiffs reallege and incorporate by reference all foregoing paragraphs within their Petition and as such Defendants reassert all admissions and denials hereinabove set forth.

34. Defendants deny the allegations contained within paragraphs 61, 62 and 63 of the Petition.

35. Plaintiffs reallege and incorporate by reference all foregoing paragraphs within their Petition and as such Defendants reassert all admissions and denials hereinabove set forth.

36. Defendants deny the allegations contained within paragraphs 64 and 65 of the Petition.

37. Defendants admit the allegations contained within paragraph 66 of the Petition.

38. Defendants deny the allegations asserted in paragraphs 67, 68, 69, 70 and 71 of the Petition.

39. Paragraph 72 of the Petition asserts a legal conclusion and as such an answer is not required. However, Defendants deny that the assertions contained within the referenced document are true and correct and, to that extent, the document does not comply with Oklahoma law.

40. Defendants deny that the Plaintiffs are entitled to any of the relief sought in the
Petition.

AFFIRMATIVE DEFENSES

By way of further answer and affirmative defense but not in diminution or derogation of the admissions or denials hereinabove set forth, Defendants state as follows:

1. Plaintiffs have not suffered and are not suffering any damages as a result of the actions of Defendants and as such
are not entitled to any relief or damages as requested within the Petition.

2. Plaintiffs are estopped from seeking relief.

3. Plaintiffs have unclean hands.

4. There is no contract between Plaintiffs and these Defendants.

WHEREFORE, premises considered, Defendants respectfully requests that this Court deny the Plaintiffs’ Petition for Permanent Injunction and grant Defendants such other and further relief as the Court deems just and proper, including but not limited to attorney’s fees and costs incurred in defending this matter.

Plaintiffs filed a petition in error on October 4, 2012.

Exhibit B

Defendants/Appellees consist of the Bixby Woodcreek Homeowners’ Association, Inc. (the “KOA”), a not-for- profit corporation, and the four (4) individuals comprising its current Board of Directors (the “Board”), through which the HOA acts. Plaintiffs/Appellants are Woodoreek residents (and, thus, HOA members) and former Board members.

This action centers primarily on “Reserve B,” a storm water detention and drainage ditch located in the Woodcreek subdivision. Prior to the individual Appellees’ tenure on the Board, and pursuant to an easement with the City of Bixby, the HOA properly maintained Reserve B consistent with, and to the extent necessary for achieving, its intended drainage function. However, the current Board - subordinating the HOA’s best interests by pandering to the demands of a few homeowners whose lots abut Reserve B - has undertaken a massive “pond remediation project” to upgrade Reserve B into a park-like setting featuring aesthetic fountains and a permanent, landscaped pond stocked with fish. To achieve this vision, Appellees have flagrantly violated the HOA’s governing documents by making impermissible and unnecessary expenditures of the HOA’s modest financial resources, entering into exorbitant service and construction contracts with improper parties, bypassing the voting requirements for obtaining HOA approval, raising annual assessments to unauthorized levels, and shrouding their actions in secrecy by refusing to allow HOA members to inspect all records of corporate acts, transactions, and affairs (including the contracts for “pond remediation” services).

As a result, on July 26, 2012, Appellants initiated this civil action for injunctive relief (i.e., enforcement of the HOA’s covenants and restrictions) and for damages for breach of contract, and immediately obtained an ex parte Temporary Restraining Order enjoining Appellees’ continued violation of the HOA’s governing documents. On August 8, 2012, however, when Appellants’ request for Temporary Injunction came on for hearing, the District Court allowed only one witness to be called (Appellee Kamran Momeni, a current Board member), foreclosed Appellants’ right to testify themselves, and prevented Appellants from introducing compelling, uncontroverted evidence (including numerous premarked exhibits) constituting proof of Appellees’ malfeasance and duplicitous conduct. By severely truncating the proceedings, the District Court deprived Appellants of their right to be meaningfully heard (resulting in several errors of fact and law) and disregarded its obligation under 12 O.S. § 1384.1 to afford proceedings brought thereunder their due attention and “precedence foyer) all mailers.” Additionally, the District Court failed to adhere to the requirements of two local rules by taking up the issue of whether another judge’s TRO should be vacated, and by allowing Appellants to be completely bypassed in the preparatIon and execution of the Order Denying Temporaiy Injunction. Thus, Appellants - as well as all HOA members - were improperly denied legal and equjtble relief to which they were unequivocally entitled.

Outcome: COMES NOW the Plaintiffs by and though their attorney, J. Derek Ingle, of the law
firm E. Terrill Corley & Associates, and to dismiss with prejudice the above-styled and captioned matter with each party responsible for their respective fees and costs.

Plaintiff's Experts:

Defendant's Experts:

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