E-FILED 2016 MAR 02 10:50 AM JOHNSON - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY

SADDLE CLUB ROAD HOMEOWNERS

ASSOCIATION, Case No. _____________________

Plaintiff,

v.

KIRK J. FERENTZ, TRUSTEE OF THE

KIRK J. FERENTZ REVOCABLE
TRUST, PETITION
AT LAW AND IN EQUITY
And

MARY C. FERENTZ, TRUSTEE OF THE

MARY C. FERENTZ REVOCABLE
TRUST,

Defendants.

COMES NOW, Saddle Club Road Homeowners Association (the “Association” or

“Plaintiff”), and for its Petition against Defendants Kirk J. Ferentz, Trustee of the Kirk J. Ferentz

Revocable Trust (“Kirk”) and Mary C. Ferentz, Trustee of the Mary C. Ferentz Revocable Trust

(“Mary”) (collectively, Kirk and Mary hereafter the “Ferentzes” or “Defendants”), jointly and

severally, states:

THE PARTIES

1. The Association is a nonprofit homeowners association organized pursuant to

Iowa Code chapter 504 with a principal place of business located in Johnson County, Iowa.

2. The Ferentzes are residents of Johnson County, Iowa.

VENUE

3. The Association realleges Paragraphs 1−2 as if fully set forth in this Paragraph 3.

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4. Venue is appropriate before this Court because this matter concerns a written

contract to be performed in Johnson County, Iowa; the determination of the Parties’ respective

rights to real property located in Johnson County, Iowa; and Defendants are residents of Johnson

County, Iowa. Iowa Code §§ 616.1, 616.7, 616.17 (2015).

BACKGROUND

5. The Association realleges Paragraphs 1−4 as if fully set forth in this Paragraph 5.

6. The Association is comprised of the owners (the “Owners”) of four parcels of real

property located in Newport Township, Johnson County, Iowa, all of which are located in a

portion of the NE ¼ of the SW ¼ and the SE ¼ of the NW ¼ in Section 23-80-6, 5th P.M.,

Johnson County, Iowa. The Ferentzes’ real property is identified in the Johnson County real

property tax records as parcel no. 0723276001, and is legally described as:

COMMENCING AT A STONE MARKING THE SOUTHEAST CORNER OF

THE SE ¼ OF THE NW ¼ OF SECTION 23, TOWNSHIP 80 NORTH, RANGE
6 WEST OF THE 5TH P.M., IN JOHNSON COUNTY, IOWA, THENCE
NORTH 1°44’ WEST FOR A DISTANCE OF 333.5 FEET TO THE POINT OF
BEGINNING; THENCE NORTH 1°44’ WEST FOR A DISTANCE OF 994.3
FEET TO THE NORTHEAST CORNER OF SAID SE ¼ OF OR NW ¼,
THENCE SOUTH 88°51’ WEST FOR A DISTANCE OF 668.04 FEET,
THENCE SOUTH 9°58’ WEST FOR A DISTANCE OF 101. FEET, THENCE
SOUTH 19°44’ EAST FOR A DISTANCE OF 621.07 FEET, THENCE SOUTH
31°37’ EAST FOR A DISTANCE OF 354.0 FEET, THENCE NORTH 88°52’
EAST FOR A DISTANCE OF 320.0 FEET TO THE POINT OF BEGINNING,
CONTAINING AN AREA OF 12.42 ACRES, MORE OR LESS, AND
SUBJECT TO EASEMENTS OF RECORD. ALSO CONVEYING THE
EASEMENT RIGHTS UNDER THE AMENDED EASEMENT AGREEMENT
RECORDED IN BOOK 2717, PAGE 169, RECORDS OF THE RECORDER OF
JOHNSON COUNTY, IOWA.

(the “Ferentz Property”).

7. Each Owner’s real property referenced in Paragraph 6 is subject to a perpetual

roadway easement across the area formerly known as Saddle Club Road for the use and

enjoyment of all Owners over the entire length and extension of said former Saddle Club Road

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(the “Easement Area”). See Amended Easement Agreement executed on or about September 30,

1998 (“1998 Easement”), page 2, ¶ 9, duly recorded April 20, 1999, in Book 2717, at Page 169,

in the records of the Johnson County Recorder, a true and correct copy of which is attached

hereto as Exhibit A.

8. By written Agreement executed on or about May 31, 2001 to June 25, 2001, and

recorded August 7, 2001, in Book 3108, at Page 224, of the records of the Johnson County

Recorder (the “2001 Agreement”, a true and correct copy of which is attached hereto as Exhibit

B), the unincorporated Association, consisting of the then-owners of the real properties

referenced in Paragraph 6 (including the Ferentzes), agreed, in pertinent part, as follows:

The parties agree that the following provisions for the maintenance of Saddle
Club Road N.E. between Prairie Du Chien Road and the north boundary line of
Saddleback Ridge – Part Three shall be binding upon the parties hereto and their
heirs, assigns, transferees, and successors in interest:

a) The parties hereto will create an Iowa nonprofit corporation consisting

of themselves as well as all future owners of the property now owned
by the parties hereto including any resubdivided lots therein. . . .

2001 Agreement, p. 2, ¶ 6(a) (emphasis added).

9. The parties further agreed in Paragraph 6(b) of the 2001 Agreement to “refrain

from parking upon or stor[ing] any equipment or personal property within the roadway . . . .”

2001 Agreement, p. 3, ¶ 6(b).

10. The 2001 Agreement further provided that “[e]ach party hereto will be

responsible for the payment of . . . road maintenance of Saddleclub [sic] Road N.E. from its

intersection with Prairie Du Chien Road to the intersection of the driveway to said individual’s

dwelling” and that the owners of any resubdivided lot from the Ferentz real property would

“share in the maintenance of the roadway in the same manner.” 2001 Agreement, p. 3, ¶ 6(c).

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11. Pursuant to Paragraph 6(a) of the 2001 Agreement, the Saddle Club Homeowners

Association was incorporated on April 16, 2015. A true and correct copy of the Articles of

Incorporation is attached hereto as Exhibit C. Article V of the Articles of Incorporation provides,

in pertinent part, that: “[e]very person or entity who is a record owner of a fee or undivided

interest of a lot having legal access to Saddle Club Road N.E., Johnson County, Iowa, shall be a

member of the Association”. The Ferentzes are such owners.

12. On or about May 23, 2015, all Owners met to discuss formation of the

Association, including proposed bylaws which were provided to each Owner in advance of said

meeting. The Owners agreed to provide any comments or requested revisions to the bylaws to a

designated Owner by June 17, 2015, and also agreed to meet again for the Association’s

organizational meeting. At the Ferentzes’ request, the organizational meeting was scheduled for

June 24, 2015, to accommodate the Ferentzes’ schedules.

13. The Ferentzes did not provide the designated Owner any comments to the

proposed Bylaws.

14. The Ferentzes did not attend the June 24, 2015 Association organizational

meeting.

15. By unanimous vote of all members present at the June 24, 2015 organizational

meeting, the Association adopted the Bylaws of the Saddle Club Road Homeowners Association

(“Bylaws”). The Bylaws were subsequently recorded in Book 5393, at Page 602, of the records

of the Johnson County Recorder, a true and correct copy of which is attached hereto as Exhibit

D.

16. As set forth in the Bylaws, the Association exists “for the purpose of owning and

maintaining Saddle Club Road N.E. (the “Road”). (Bylaws, p. 1, § 1.01). Further, they expressly

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identify the initial Owners and members of the Association: all signatories to or their subsequent

property owners as provided in the 2001 Agreement, including the Ferentzes. Bylaws, p. 1, §

1.03.

17. Section 3.07 of the Bylaws requires the Board of Directors of the Association to

obtain the approval of a majority of Owners to enter into contracts consisting of an expenditure

of $5,000 or more.

18. Article V of the Bylaws governs the Association’s authority to levy assessments.

Article V, Section 5.03 provides for Periodic Assessments for Common Expenses, including:

“(b)(2) the cost of maintenance and repair of the Road or any part or improvement thereof”.

19. By unanimous vote of all members present at the June 24, 2015 Association

meeting, the Association approved the expenditure of $36,736 for the repair of the Road,

together with funding a $5,000 Road maintenance fund, and for the distribution of assessments

for the Road repair and the maintenance fund, consistent with each Owner’s Pro Rata Share of

Common Expenses as set forth in Exhibit A to the Bylaws. See Affidavit of Secretary of Saddle

Club Homeowners Association, duly recorded in Book 5414, at Page 658, of the records of the

Johnson County Recorder, a true and correct copy of which is attached hereto as Exhibit E.

20. Pursuant to the Bylaws, the Ferentzes’ Pro Rata Share as assessed by the

Association for the Road repair expenses, together with their share of the Road maintenance

fund, is $9,599.28 (collectively, the “Assessment”).

21. The Association has made repeated demand upon the Ferentzes for payment of

the Assessment; however, the Ferentzes have refused to pay.

22. Section 5.06 of the Bylaws permits the Association’s Board of Directors to record

and foreclose a lien against the real property of any Owner failing to pay an assessment when

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due. Section 5.06 further permits the Association to bring a suit to recover a money judgment for

any unpaid assessments, without foreclosing or waiving such lien, to collect the assessment and

recover its costs and expenses, including attorney’s fees. See Bylaws, p. 10, § 5.06.

23. On or about January 6, 2016, the Association obtained a topographical survey of

Saddle Club Road NE and the Easement Area (the “Survey”). A true and correct copy of the

Survey is attached hereto as Exhibit F. The Survey was specifically completed to identify any

encroachments within the Easement Area.

24. The Survey reveals several encroachments located within the Easement Area,

including a fence and landscaping belonging to the Ferentzes (the “Encroachments”).

25. The Owners have assigned all of their claims and interests regarding the

Encroachments to the Association. A true and correct copy of the Assignment of Claims and

Interests is attached hereto as Exhibit G.

COUNT I: BREACH OF CONTRACT (WRITTEN)

(2001 Agreement)

26. The Association realleges Paragraphs 1−25 as if fully set forth in this Paragraph

26.

27. The Association has made repeated demand upon the Ferentzes for payment of

the Assessment for their contribution to Road repairs and maintenance as set forth in Paragraphs

18-19 above.

28. The Ferentzes have indicated they do not object to the amount of the assessment,

but they have failed to pay and have disavowed membership in the Association.

29. The Ferentzes’ refusal to pay for their portion of Road repairs and maintenance,

and refusal to honor their obligations as members of the Association, including paying their

share of the assessment for repair and maintenance of the Road as set forth in Paragraphs 18−19

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above, constitutes a breach of their obligations pursuant to Paragraphs 6(a), (c) and (d) of the

2001 Agreement.

30. The Ferentzes’ disavowal of their membership in the Association and refusal to

honor their obligations under the 2001 Agreement constitutes a breach of their obligations

pursuant to Paragraph 6(a) of the 2001 Agreement.

31. The Ferentzes’ construction and/or installation of the Encroachments within the

Easement Area constitutes a breach of their obligations pursuant to Paragraph 6(b) of the 2001

Agreement.

32. The Association consists of the other parties to the 2001 Agreement or their

assigns, transferees, or successors in interest.

33. The Association has suffered damages, in an amount to be proven at trial, by the

Ferentzes’ failure and refusal to honor their obligations under the 2001 Agreement.

WHEREFORE, Plaintiff respectfully requests that this Court enter an order finding in its

favor against Defendants, jointly and severally, declaring the Ferentzes members of the

Association subject to its Bylaws pursuant to the 2001 Agreement, awarding the Association

judgment in favor for its contract damages, in an amount to be proven at trial, together with

interest, expenses, reasonable attorney’s fees, tax costs to Defendants, plus such further relief as

the Court deems appropriate.

COUNT II: BREACH OF CONTRACT (WRITTEN)

(Association Bylaws)

34. The Association realleges Paragraphs 1−33 as if fully alleged in this Paragraph

34.

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35. The Ferentzes’ failure and refusal to pay the Assessment for their Pro Rata Share

of the repair costs for the Road constitutes a breach of their obligations pursuant to the Bylaws,

including Paragraphs 5.03 and 5.06 thereto.

36. The Association has recorded a lien against the Ferentz Property pursuant to

Paragraph 5.06 of the Bylaws, but elects hereby to bring a suit to recover a money judgment for

the unpaid Assessment, without foreclosing or waiving such lien, to collect the Assessment and

recover its costs and expenses, including attorney’s fees. See Bylaws, p. 10, § 5.06.

37. The Association has suffered damages, in an amount to be proven at trial, as a

result of the Ferentzes’ failure and refusal to pay the Assessment.

WHEREFORE, Plaintiff respectfully requests that this Court enter an order finding in its

favor against Defendants, jointly and severally, declaring the Ferentzes members of the

Association subject to its Bylaws pursuant to the 2001 Agreement, awarding the Association

judgment in favor for its damages as a result of the Ferentzes’ breach of the Bylaws, in an

amount to be proven at trial, together with interest, expenses, reasonable attorney’s fees, tax

costs to Defendants, plus such further relief that this Court deems appropriate.

COUNT III: TRESPASS

38. The Association realleges Paragraphs 1−37 as if fully alleged in this Paragraph

38.

39. As revealed by the Survey, the Ferentzes have trespassed upon the Easement Area

by constructing and/or installing the Encroachments.

40. The Ferentzes knew or should have known that the Encroachments would result

in trespass.

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41. The trespass has resulted in damage to the Owners’ property and a diminution of

the Owners’ rights to the Easement Area, in an amount to be proven at trial.

WHEREFORE, Plaintiff respectfully requests that this Court enter an order finding in its

favor against Defendants, jointly and severally, ordering said Defendants to remove all

Encroachments from the Easement Area, awarding the Association judgment in favor for its

damages as a result of the Ferentzes’ trespass, in an amount to be proven at trial, together with

interest, expenses, reasonable attorney’s fees, tax costs to Defendants, plus such further relief

that this Court deems appropriate.

Respectfully submitted,

/s/ Adam S. Tarr

ADAM S. TARR (AT#0009725)
atarr@pughhagan.com
BRYCE K. DALTON (AT#0011833)
bdalton@pughhagan.com
of
PUGH HAGAN PRAHM PLC
1100 Sixth St., Suite 102
Coralville, IA 52241
Phone: 319.351.2028
Fax: 319.351.1102
ATTORNEYS FOR PLAINTIFF

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