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Remember the rise and fall of Rome? Well, it's happening again -- right here in our own country. Historians tell us that the United States is in its last phase of social and financial decline (as if intelligent and rational Americans didn't already know that). Americans who have been paying attention know that our legal system appears to be irreparably broken, and that our local, state and federal governments appear to be in corrupt shambles. Illegal aliens (most from Mexico) appear to be taking over our country. I also read (from reputable and reliable sources) that the United States, Canada and Mexico have plans to merge into one country. Can intelligent and rational Americans peacefully stop this madness? Or will there be another bloody American Revolution? Those two questions are what this blog is all about. Please join me in discussing what steps We The Intelligent And Rational People need to take to turn our country around before it's too late. Jan Jackson

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DID THE TRIAL COURT ERR? - Part IV

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Contributed by: Jan Jackson on 6/29/2008

Readers will recall that Part I of "Did The Trial Court Err?" concerned Jan Jackson's attorney's Opening Brief in the Colorado Court of Appeals. It was a summary of the issues of Jan's lawsuit against her homeowners association, as well as some background information. Part II was about the validity of her homeowners association's covenants, and amendments to those covenants. Part III was mainly concerned the Trial court's final order/decision.

Part IV of Jan's attorney's Opening Brief in the Appeals Court concerns her attorney's LEGAL ARGUMENTS about her homeowners association's DEFAMATION counterclaims (fifty-three of them) which were filed against her on May 21, 2007, because -- or so it appears -- she "committed the sin of challenging" her HOA's board of directors.

It has been suggested, by some who have already read the DEFAMATION section of Jan's attorney's Opening Brief, that the President and the rest of Jan's HOA's board of directors appear to be really "thin skinned." That is, as quasi- public officials, they appeared to be overly sensitive to criticism. Other readers wondered if something else might have been going on with them that was more onerous. Jan leaves that question to the readers to decide after they have read her attorney's entire legal argument concerning the DEFAMATION counterclaims against her (see below). Jan will also be posting here, later, the entire transcript of the DEFAMATION part of the trial which HOA homeowner readers may find very interesting and enlightening.

Here's Part IV of "Did The Trial Court Err?"

B. DEFAMATION

The original defamation counterclaim was filed March 8, 2006 (Vol. 1, p. 13). The Association knew at that time that Jackson had published and sent hundreds of articles, postings, and e-mails (Tr., Vol. 4, p. 190, l. 24, to p. 191, l. 14), but the original counterclaim -- four sentences -- gave Jackson no hint as to which of those hundreds of items the Association considered defamatory. The amended counter-claim filed May 21, 2007 (Vol. 3, pp. 490-499), sets forth 53 separate items of claimed defamation, all of which are publications (libel). None is oral (slander). Although the amended counterclaim alleged both defamation per se and per quod (Id., Section 19), only libel per se was offered at trial. Tr., Vol. 2, p. 20., l. 14, to p.22, l. 3.

The amended counterclaim of May 21, 2007, gave Jackson notice, for the first time, of which of her publications the Association considered libelous.

1. Statute of Limitation

C.R.S. 13-80-103(1)(a) limits defamation claims to one year. Despite the concept of notice pleading, a special rule has applied to defamation claims for more than fifty years. As stated in Lininger v. Knight, 226 P.2d 809, 812 (Colo., 1951), "No law is better settled than that each publication of a libel is a separate and independent claim, and that each must be pleaded as a separate cause of action." See also, Corporon v. Safeway Stores, Inc., 708 P2d 1385, 1390 (Colo. App., 1985).

Even v. Longmont United Hospital Association, 629 P.2d 1100, 1103 (Colo. App., 1981), states, "The doctrine of relation back in C.R.C.P. 15(c) does not permit a party to maintain a claim for libel [asserted in an amended complaint] filed after the statute of limitations has run." Even cited Walker v. Associated Press, 417 P.2d 486 (Colo., 1966) as authority. Mr. Walker originally pled three claims, with specificity, against two defendants. The first two claims sought relief only against the Denver Post. The third claim sought relief against both the Post and the Associated Press. More than one year later, Mr. Walker filed an amended complaint, identical in claim content to the original complaint, but this time he added the Associated Press as a defendant to the first two claims. Because the Associated Press already was a defendant to the third claim and had been served with the original complaint, the Associated Press certainly knew, with specificity, of the two claims Mr. Walker was now asserting against it. Nevertheless, the supreme court held that such two "amended" claims against the Associated Press (even though identical to the original claims) constituted "new" claims and because they had not been asserted "within one year after the cause of action accrued, [they] are now barred by the provision of C.R.S. 1963, Section 87-1-2 [now Section 13-80-103(1)(a)] (at 488)."

The first day Jackson no longer had to guess what constituted the defamation claims against her -- publications, oral statements, anything -- was May 21, 2007, when the amended counterclaim was filed alleging the 53 libelous items. Only publications made after May 20, 2006, are actionable. Even, supra; Walker, supra. Jackson made timely objections to publications made prior to one year before May 21, 2007 -- Vol. 3, pp. 457-462 and 477-483 (both pre-trial) and at trial at Tr. Vol. 2, p.20, l. 14, to p. 22, l. 3 (see Lininger v. Knight, supra) --and reasserts them here.

2. The "Illustrative" Publications

In its Order of October 24, 2007, the trial court cited 18 lettered exhibits, one e-mail dated "Aug. 10, 2006," and "Numerous [other] e-mails . . . ," all published "within 12 months preceding the filing of the original complaint [sic, counterclaim]" as "illustrative" of libel (emphasis added). App., p. 3.

Of those cited publications, only two -- Exhibit jj and the e-mail of August 10, 2006 -- were published within one year of May 21, 2007. The rest -- Exs. v, w, y, cc, dd, ee, ff, jj, mm (pp. 9, 32, 37, 46, 66, 71, 84, 91, and 106), and nn -- all were made more than one year before May 21, 2007, the most recent being December 24, 2005 (p. 106 of Ex. mm). All of these cited documents are in the record (the Association's exhibit binders) but are difficult to locate because none is tabbed.

The illustrative publications are discussed below. Jackson also cannot comment on any of the Association's exhibits other than the cited "illustrative" ones because Jackson does not know which, if any, of the others the trial court considered libelous -- some, none, or all. Libel is serious business. Jackson should not be left to guess a second time. By not identifying which, if any, of the other hundreds of publications were libelous, the trial court compromised Jackson's due process right to confront and refute, in this court of review, the evidence used against her. This court can consider only the 20 "illustrative" publications (subject to Jackson's statute of limitation defense).

3. Burden of Proof

The Colorado Constitution, Article II, Section 10 (and the federal constitution), gives the Plaintiff a right of free speech. In defamation matters, a standard of "clear and convincing" evidence is required. As stated in Diversified Management, Inc. v. The Denver Post, Inc., 653 P.2d 1103, 1108-1109 (Colo., 1982), "Unless the clear-and-convincing standard is constitutionally required, the statue would require that the preponderance standard be applied. * * * Because our decision [in Walker v. Colorado Springs Sun, Inc., 538 P.2d 450 (Colo., 1975)] was based on our interpretation of article II, section 10, of the Colorado Constitution, the clear and convincing standard established in Walker supersedes the statute." See also, Gordon v. Boyles, 99 P.3d 75, 78 (Colo. App., 2004)("convincing clarity").

4. The Person Defamed

The Association is the only claimant, the directors of the Association having been dismissed on their and the Association's motion (Vol. 1, pp 9-10 and 62). The Association is a nonprofit corporation. It is sui juris. Nonprofit corporations can be defamed. See Spears Free Clinic & Hospital For Poor Children v. Maier, 261 P2d 489 (Colo., 1953), in which the nonprofit corporation was the only plaintiff. Libel per se publications must be directed at the Association or be about it, no one else. Denver Publishing Company v. Bueno, 54 P3d 893 (Colo., 2002), footnote 9. See also Gordon v. Boyles, supra, at 79 ("specifically directed at the plaintiff (identity)").

5. Qualified Privilege

A property owners association holds significant power over the affairs of its subdivision and serves "quasi-governmental functions." As stated in Woodard v. Board of Directors of Tamarron Association of Condominium Owners, Inc., 155 P3d 621, 624 (Colo. App., 2007): "'This duty [of homeowners associations to enforce covenants in good faith] has been imposed in recognition of the power held by homeowner[s] associations, the quasi-governmental functions they serve, and the impact on value and enjoyment that can result from the failure to enforce covenants.'"

It is not just the owners in BLM who have an interest in what the Association does. The public also does. As stated in Diversified Management, Inc., v. The Denver Post, Inc., supra -- a libel case -- "The matters involved here are alleged widespread and ongoing land-development schemes of questionable propriety. Not all of the lots were sold; consequently, the "public" contained a number of potential buyers who had an abiding interest in the matter. As a result, we believe the trial court was correct in treating this case as one involving a private figure [the corporate plaintiff] in a matter of public or general concern" (at 1108).

Although all of the lots in BLM have been sold, because all can be resold by their current owners, the "public" contains a number of potential buyers who have an abiding interest in how the Association exercises its quasi-governmental functions. An owner in BLM such as Jackson has a qualified privilege to comment on how the Association exercises it quasi-governmental functions. See Arrington v. Palmer 971 P2d 669 (Colo. App., 1998); Vol. 3, pp.515-516 (Jackson's trial brief). As such, the Association must prove actual malice "with convincing clarity." Reddick v. Craig, 719 P.2d 340, 343 (Colo. App., 1985). That proof is lacking here. See, Tr., Vol. 1, p. 74 through Vol.3, p. 106 (Jackson's day-and-a-half cross examination).

6. Standard of Review

Only the rules for libel per se apply. Libel per quod rules do not apply. Nor do the rules for slander except to the extent they also apply to libel. The threshold question is whether a statement is, in fact, defamatory. As stated in Churchey v. Adolph Coors Company, 759 P2d. 1336, 1341 (Colo., 1988). "A cause of action for defamation requires, at a minimum, publication of a false statement of defamatory fact." If that threshold test is not met, it is not, as a matter of law, defamatory.

"Whether a writing is libelous per se is a legal question to be resolved as a matter of law by the court." Inter-State Detective Bureau, Inc., v. The Denver Post, 484 P2d 131, 133 (Colo. App., 1971). "Whether a particular statement constitutes fact or opinion is a question of law." Brooks v. Paige, 773 P.2d 1098, 1100 (Colo. App., 1989). Because the evidence of claimed defamation consists entirely of documents, and because the issues involve only legal conclusions based on those documents, this court is not bound by the trial court's conclusions and conducts a de novo review. See C Bar H, Inc., v. Board of Health in and for Jefferson County, 56 P3d 1189, 1192 (Colo. App., 2002). "In evaluating an article which is said to be libelous per se, the court must interpret the article alone, without the aid of inducements, colloquialisms, innuendos, and explanatory circumstances." Inter-State Detective Bureau, Inc., v. The Denver Post, supra. "Although a particular comment might appear on its face to be a statement of fact, when considered in context it may otherwise be revealed to be mere hyperbole, not intended to be understood in its literal sense." Brooks v. Paige, supra, at 1100. "However, 'Once a court needs to speculate concerning the meaning the statement purports to convey, . . . [it enters] the area of opinion as opposed to factual assertion.'" Brooks v. Paige, supra, at 1101 (brackets in original).

Colorado has adopted a three-part analysis to differentiate fact from opinion:

"(1) the way the assertion is phrased; (2) the context of the entire statement; and (3) the circumstances surrounding the assertion, including the medium through which the information is disseminated and the audience to whom the statement is directed." Wilson v. Meyer, 126 P3d. 276, 280 (Colo. App., 2005).

7. The "Illustrative" Publications Themselves

The above principles require the illustrative articles, in their entireties, to stand on their own before this court. Taken in context, they either are libelous on their faces or they are not. They are either fact or opinion. Anything Jackson (or anybody else) said on the stand about the content of documents that speak for themselves does not change what the documents themselves say (see, e.g., Tr. Vol. 4, p. 9, ll.15-20 -- Mr. Ledford also had trouble remembering things past) . Select words and sentences ("particular comments") do not change content. The sheer volume of the documents also must be taken into account. Under the Association's view, nearly everything Jackson ever published about the directors "libeled" the Association somehow. That sheer volume, all of it, every single exhibit, is to be taken literally as fact -- against the Association. Which begs the question-- was it fact? Or was it criticism-- Jackson's opinion (strongly voiced), of how the directors were running BLM, Jackson's home in which she has an abiding interest? That is the simple question before this court. If this court needs to speculate about the Boolean answer to that question, it necessarily must come down on the side of opinion. Brooks v. Paige, supra. As stated in The Denver Publishing Company v. Bueno, supra (at fn. 9), to be libel per se, in addition to stating a false fact, the "remarks must fall into one of four categories . . . .(a) a criminal offense . . . (b) a loathsome disease . . . (c) [a] matter incompatible with his business trade, profession, or office . . . (d) serious sexual misconduct." Jackson's publications fall into none of these categories.

In its order the trial court took "particular comments" out of context and on the basis of those particular comments alone proclaimed the entire publication libelous-- i.e., a false statement of fact directed at the Association (App., p. 3). Libel cannot be predicated on selected words. The context controls. Brooks v. Paige, supra. Furthermore, when considered in their entireties, none of the illustrative publications is libelous. All are opinion. In addition, all fall outside the four categories necessary for a publication to be libel per se.

Other than the assault committed on her (a true fact, discussed below), the Association does not claim Jackson accused it (or the directors) of a crime (Tr., Vol. 4, p. 22, l. 12, to p. 23, l. 7). Defamation per se requires a (false) statement of a "criminal offense chargeable by indictment or by information . . . . It is true that the word "crook" is derogatory, but the word does not in and of itself impute the commission of a crime." Cinquanta v. Burdett, 388 P.2d 779, 780 (Colo., 1964). See also, Inter-State Detective Agency v. Denver Post, Inc., supra, at 133. Similarly, the words "sickie," "terrorists," "sleaze," and "scum," when considered in context, are not defamation but rather were words of "imaginative expression" and were "not to be taken literally." Arrington v. Palmer, supra, at 672, commenting on Keohane v. Stewart, 882 P.2d 1293 (Colo., 1994). The word "paranoid," in context, is "merely rhetorical hyperbole and cannot reasonably be viewed as an assertion of medical fact." Wilson v. Meyer, supra, at 280

When the phrase "loathsome disease" is typed into a computer search of Colorado cases, only six cases appear. Of those six, only one, a case not selected for publication, Fort v. Holt, 508 P2d. 792 (Colo. App., 1973), discusses "loathsome disease" in the context of mental illness. Said the court (at 793), ?However, the allegation that at one time a person had been mentally ill does not constitute an imputation that one has a loathsome disease." Other than Wilson v. Meyer, supra, this is the only case in Colorado discussing this topic. There is no case in Colorado stating that mental illness falls into one of the four per se categories (and the only one it could fall into is a "loathsome disease," mental illness certainly not being a "crime," a term also discussed in Fort v. Holt, which applied, at 794, the rule in Cinquanta, supra, to a slander per se claim).

The illustrative exhibits, as is clear from their faces, are couched in "speculative and conjectural language," "imaginative expression," "rhetorical hyperbole" (Arrington v. Palmer, supra, at 673) and in "terms of apparency" (Brooks v. Paige, supra, at 1101). Read in their entireties, the publications, from the language used, are not meant "to be taken literally" but instead are what they purport to be -- opinions expressing Jackson's criticisms of how the directors are running BLM.

The audience to whom the publications were directed also must be taken into account. Most of them (Exs. v, w, y, cc, dd, ff, jj, and all the cited pages of mm) were postings on the American Homeowners Resource Center (AHRC) or the Colorado HOA News, web-based forums for expressions concerning matters related to property owners associations (Tr., Vol 1, p. 112, ll 6-11), or e-mails to the BLM membership (the two e-mails in Ex. nn). These are people who have an interest in property owners associations generally (e.g., the AHRC) or in BLM specifically (the owners).

The following words (and derivatives of them) -- "appear," "seem," "may," "might," "think," "if," "indication," "believe," "probably,"
"observation," "impression," "in my opinion," "feel," as well as editorial comment symbols (e.g., Ex. mm, pp. 9 and 84, [words "grin" and "sigh" between bracket-type symbols], rhetorical questions (e.g., title of Ex. ff -- which is the same document as Ex. ee), and words in quotation marks -- are replete throughout these publications.

These publications are more akin to those in Sall v. Barber, 782 P.2d 1216 (Colo. App., 1989) -- ironically cited by the trial court as authority for its order-- than to statements considered in true defamation cases. Sall v. Barber lines up with Arrington v. Palmer, Brooks v. Paige, and Reddick v. Craig to form the fours sides of the square within which this court must decide this issue.

And at least one, Ex. cc, is directed at Gary Ledford (identified only as a "wealthy California developer" -- see, e.g., Tr., Vol. 4, p. 53, ll. 21-25), who at the time of the publication, July 3, 2005 (well before May 21, 2006), was just an owner. He did not become a director until the following September (Tr., Vol. 1, p. 11, l. 17, to p.18, l. 17). How this exhibit "libeled" the Association is unexplained. See Reddick v. Craig, supra, at 343.

Moreover, the Association admits it did not have (and as of trial still did not have) adjudicated water storage rights for Lake Jordan. Tr., Vol. 4, p. 86, ll. 17-19. It attempts to parse words in stating that its lack of "adjudicated" rights is not "illegal." Tr., Vol. 3, p. 195, l. 10, to p. 201, l. 12. However, when a water user does not have a "legal" right to use water, "illegal" is a proper description. In re: Water Rights of Elk Dance Colorado, LLC, 139 P.2d 660 (Colo., 2006)(well was "illegal" when users did not have a proper permit -- at 663). Also, the assault committed on the 70 year old Jackson by a board member (see Tr., Vol. 2, pp. 148-149, Vol. 4, pp. 40-44, 48-49, 123-127, and 130, and attachment to Ex. S) is a fact that is an embarrassment to the Association but not is disputed by the Association (Id.). But that did not stop the Association, at trial, from carping on Jackson for referring to it in her publications when she was cross examined for a day-and-a-half.

The Association does not like the fact that one of its board members at the time (but no longer a board member) committed an assault on Jackson in front of witnesses. Nor does it like its embarrassments (including the "illegal" lake) being known outside the "family" (e.g., Ex. mm, p. 71). But her criticisms of the Association-- which criticisms began with the fence and led to the "closure" assessment against her -- are just that -- critical opinions -- and are well-founded.

Part V of "Did The Trial Court Err?" will be about an INJUNCTION against Jan Jackson which severely limits her Constitutional right to freedom of speech.

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