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DID THE TRIAL COURT ERR? - Part III

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Contributed by: Jan Jackson on 6/28/2008

Readers will recall that Part I of "Did The Trial Court Err?" concerned my attorney's Opening Brief in the Colorado Court of Appeals. It was a summary of the issues of my lawsuit against my homeowners association, as well as some background information.

Part II of my attorney's Opening Brief was about the validity of my homeowners association's covenants, and amendments to those covenants, which my attorney and I are challenging in the Appeals Court in Denver, Colorado.

Part III (see below) of my attorney's Opening Brief concerns:

(a) the Trial court's ORDER (decision) dated October 24, 2007 (see below) of the Trial which took place in July (for two days) and September (for two additional days) in 2007. Readers here will remember how aghast and outraged they were when they first read Judge Kennedy's Trial Order/Decision. It was a shocker for me and my attorney, too. We, of course, appealed that Order/decision as soon as we could. We later prevailed in a court hearing concerning the outrageous amount of legal fees that my HOA's Community Associations Institute (CAI) lawyer had claimed, and

(b) my attorney's legal ARGUMENT concerning my claim that certain Amendments of my HOAs Covenants and Assessments were invalid.

Part IV of my attorney's Opening Brief in the Appeals Court in Denver will concern my attorney's legal ARGUMENT concerning my HOAs amended DEFAMATION counterclaims (fifty-three of them) which were filed against me on May 21, 2007, because -- or so it appears -- I "committed the sin of challenging" my HOA's board of directors.

Here is a copy of Judge Kennedy's order/decision:

DISTRICT COURT, TELLER COUNTY, COLORADO
Division 2
P.O. Box 997
101 West Bennett Ave.
Cripple Creek, CO 80813
(719) 689-0450

Case Number 06CV23

JANICE J. JACKSON, Plaintiff,
vs.
B LAZY M RANCH OWNERS ASSOCIATION,
Defendant.

ORDER FROM TRIAL

This matter is before the Court for ruling following several days of testimony. Being fully advised, the Court now Orders as follows:

1. Plaintiff's claim

The Plaintiff has sought declaratory judgment concerning two issues: first, whether the 1977 covenants permitted the special assessments levied at the September 2005 annual meeting; and second, whether the several amendments to those covenants were completed in compliance with the 1977 covenants. The Court answers both of those questions in the affirmative. The Court would further note that it has previously ruled that the 1977 covenants did permit the assessments for dam repair and obtaining water rights, and that ruling is again affirmed. The remaining issue concerns the assessment to "obtain closure" on Ms. Jackson's numerous complaints.

The 1977 covenants are broad in their scope. Their stated purpose is "to maintain the beauty, tranquility, maximum carrying capacity, and natural environment of a working ranch for the owners of the Ranch and their successors in interest. Owners of property in the Ranch shall
have the right of use and quiet enjoyment of their property..." To carry out those purposes, the covenants call for the creation of the Ranch Owners Association (ROA). The ROA shall "assume control of and responsibility for matters of common interest." Among the specified purposes are the enforcement of protective covenants and maintenance of property owners' rights. The covenants further provide for the payment of periodic dues and/or fees.

The Plaintiff argues that these provisions do not permit the enactment of a special assessment to bring closure on the issues raised by the Plaintiff over a period of several years. The Court disagrees. In order to carry out its responsibilities, the ROA must have some funding mechanism. In this case, closure of the Plaintiff's issue fit within the scope of the purposes listed in the above paragraph. The Plaintiff's various complaints dealt with issues of common interest (obtaining water rights, road maintenance, board functioning, access to records, among others), and her nearly constant barrage of e-mails and internet posting which threatened litigation against all owners clearly implicate the right of the owners to the quiet enjoyment of their property.

The second issue raised by the Plaintiff concerns the manner in which the covenants can be amended. In granting partial summary judgment, the Court concluded that at least in connection with the 1987 amendments that the ROA had obtained signed ballots which were certified by ROA officers on the document filed with the clerk and recorded. During the trial, the Defendant has now produced signed ballots for each of the subsequent amendments through 2002 (which were the most recent amendments prior to the 2005 annual meeting). In each case, the recorded covenants list the vote cast by the owner of each tract and include a certification from the officers and/or board members that they "saw and counted all ballots returned". While it is true that the signed ballots themselves were not recorded in the clerk and recorders office, they were maintained by the ROA and were available for inspection. To require the ROA to record those ballots and pay the cost associated therewith seems unreasonably burdensome.

There is a readily available means by which any property owners can review those ballots to confirm that they were properly cast. As stated previously by the Court, to require recordation of the ballots would not only elevate form over substance but would act to circumvent the clear intent of the majority of property owners. The Court would further note that in 1987 there were only two negative votes cast. The Court is therefore satisfied that the 1987, 1992, 1997, and 2002 amendments to the covenants were properly enacted.

Based on the foregoing, the Court finds in favor of the Defendant and against the Plaintiff on the Plaintiff?s claim for declaratory judgment. Pursuant to the article 15 of the 1977 covenants and C.R.S. 38-33.3-123(1)(c), the Defendant is entitled to recover its attorney fees in defending the Plaintiff's claim.

2. Defendant's counterclaims

The Defendant has asserted two counterclaims; the first alleging libel; and the second, seeking injunctive relief. Those claims will be addressed separately below.

A. Libel

In the amended counterclaim filed on May 21, 2007, the Defendant has alleged in excess of fifty separate instances of libel. While some of the allegations directly refer to the Board of Directors of the Defendant B Lazy M Ranch Owners Association, others refer to individuals acting in their capacity as officers and directors. Since a corporation can only act through its officers and directors, the Court concludes that libel directed toward an officer or director acting in their official capacity is actionable by the corporation itself. The Court wants it to be clear that some statements directed at either past or present board members not related to their duties as board members were not considered by the Court.

The Court first concludes that the Defendant's claim is governed by C.J.I. 4th, 22:4. The Court further finds that the Defendant, although a non-profit corporation, has the legal status as a private person. See Diversified Management v. Denver Post, 653 P.2d 1103 (Colo. 1982). The Court also concludes that the matters raised in the libelous statements are not of public concern. See Quigley v. Rosenthal, 43 F.Supp. 2d 1163 (D.Colo. 1999). To constitute a matter of public concern, the matters raised must have been of public concern prior to the publication of the defamatory statement. No evidence was presented that the conduct of the Defendant was a matter of public concern prior to the Plaintiff's publication of those matters.

The Court next concludes that many, if not most, of the instances identified by the Defendant are libelous per se. That is, the statements are defamatory on their face and clearly reference the Defendant or its officers and directors acting in their official capacity. These statements tend to harm the Defendant's reputation in the community. See C.J.I. 4th, 22:7. In addition, many of the instances allege criminal misconduct, refer to the board members as incompetent in the performance of their duties, and some even include references to psychiatric illnesses. While theCourt does not intend to go through each of those instances, some examples are illustrative. The Court believes that all of these publications relied on by the Defendant occurred within 12 months preceding the filing of the original complaint in this case and are therefore within the limitation period pursuant to the earlier Order of this Court. The references will be to the Defendant's exhibit designations.

ex. v: HOA consists of "wannabe dictators"
ex. w: HOA 'almost totally corrupt"
ex. y: "dictatorial ravages of their rogue boards of directors", AND
allegations of criminal misconduct
ex.cc: 'power and money seekers like this California developer"
ex. dd: "Colorado's poster child for corrupt homeowners associations"
ex. ee: "Ranch psychopaths"
ex. ff: psychopaths
ex. jj: obsessive-compulsive disorder
ex. mm, p 9; "Ranch BoD is getting a little nervous about somebody catching them with their fingers in the cash register?"
p. 32: referring to supporters of the BoD as "sycophants" which is defined by Webster's as being a servile flatterer or a parasite.
p. 37: BoD involved in a "conspiracy to defraud, discrimination, the violation of fiduciary duties"
p. 46: assertions that the BoD attorney as well as a BoD member who happens to be an attorney should be reported to the Colorado Bar for unethical conduct, AND allegations of federal and state law violations which should be reported to
appropriate authorities
p. 66: violation of state and federal laws
p. 71: "and the venal HOA beat goes on"
p. 84: "the President of our HOA" appears to be the most inept, incompetent "mouthpiece" that any cabal in existence has probably ever experienced.
p. 91: "all the improper/illegal BLM ROA skeletons-in-the-Ranch-closet"
p. 106: accusations of "rigging the votes"
ex. nn: May 31, 2005 email asserting "apparent violations of state of Colorado and federal laws (civil and criminal)" by the BoD
Numerous e-mails asserting civil and criminal violations by BoD, including RICO violations, violations of "constitutional rights", "serious legal violations", etc.
Aug. 10, 2006 email asserting at least one board member may be afflicted with a very serious and destructive-to-others mental/emotional disorder.

There is no dispute that the Plaintiff's statements were published (see C.J.I. 4th 22:6). The Court concludes the statements made by the Plaintiff are false. Testimony presented by the Defendant contradicted these allegations, and no factual evidence was presented by the Plaintiff to support her contention that the Defendant violated state or federal law, that the Defendant committed a civil wrong, or that any officers or directors suffered from a mental illness. Perhaps most interestingly, even though this case was commenced by the Plaintiff, the only assertion of wrong-doing which she raised related to the process of amending the covenants. Despite her many references to wanting to present these matters in court, no claim was made by her for any civil or criminal wrong of any kind.

The Plaintiff does not deny making any of the more than fifty publications identified by the Defendant. Instead, she argues that she is just stating her opinion. While statements of pure opinion may be protected, in this case the Plaintiff asserts factual support for many of her opinions. See Sall v. Barber, 782 P.2d 1216 (Colo. App. 1989) and Burns v. McGraw-Hill, 659 P.2d 1351 Colo. 1983). Therefore, those statements of opinion which imply or state factual support are actionable.

The more difficult question is one of damages. Because of the difficulty in calculating damages in libel claims, in instances of libel per se, damages are presumed. No special damages need be proven. As stated by one well-known author:

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.
William Shakespeare, "Othello", Act 3 scene 3

In this case, the Court finds by clear and convincing evidence that the Defendant has proven its counterclaim of libel, and that the conduct of the Plaintiff was both intentional and for the express purpose of causing harm to the Defendant ROA as well as to the individual board members. Accordingly, the Court awards damages to the Defendant and against the Plaintiff in the amount of $10,000.

B. Injunctive Relief

The Defendant also seeks injunctive relief to prohibit the Plaintiff from publishing libelous materials and from contacting the ROA as well as the individual members of the association. The Court recognizes that the issuance of an injunction, particularly when it restricts the free speech rights of a party, is a drastic remedy, and the scope of the injunction must be narrowly limited to serve its legitimate purposes. However, the Court is satisfied from the evidence that the Plaintiff has engaged in intentional acts of harassment over a period of many years; that the acts of the Plaintiff are not entitled to constitutional protection; that the ROA has no adequate remedy at law; and that unless the Court issues an injunction the conduct of the Plaintiff is likely to continue.

The Plaintiff is therefore enjoined from the following:

1. Publication in any manner or forum, including, but not limited to, the news media, letters to editors, community newsletters, and internet and blog postings of the name of the B Lazy M Ranch Owners Association, the names of its property owners, or the names of its past and present board members;

2. Publication in any manner or forum, including, but not limited to, the news media, letters to editors, community newsletters, and internet and blog postings alleging criminal conduct, civil wrongs, and mental and/or psychiatric conditions, which refer directly or indirectly to the B Lazy M Ranch, the B Lazy M Ranch Owners Association, its property owners, or its past and present board members;

3. Communication by any means, including but not limited to, e-mail, letter, telephone, or in person with any member of the B Lazy M Ranch Owners Association, its property owners, and its past and present board members which in any way alleges criminal conduct, civil wrongs, or mental or psychiatric conditions by any past or present board member of the B Lazy M Ranch Owners Association.

4. Because prohibition of future misconduct will not remedy the continuing harm which may result on the on-going publication on the internet or blogs of some of the defamatory statements identified by the Defendant, the following mandatory injunction shall also issue:

Within 15 days of this Order, the Plaintiff shall contact the American Homeowners Resource Center, the Gazette YourHub, and any other internet website or blog on which she has posted contributions and shall request that all postings made by her which identify or name the B Lazy M Ranch Owners Association, the names of its property owners, or the names of its past and present board members, be removed from said website or blog. Within 30 days of this Order, the Plaintiff shall file with the Court and provide copies to opposing counsel proof of compliance with this Order.

In order to preserve the Plaintiff's right to seek redress of any future grievances, if she believes that any present board member of the B Lazy M Ranch Owner's Association has violated any law or has acted in contravention of their duties as officers or directors, the Plaintiff shall first notify, in writing, the president of the B Lazy M Ranch Owner's Association of the alleged violation, describing in detail the facts which she believes constitutes the violation and the specific statute, duty, or common law which she alleges has been violated. The B Lazy M Ranch Owner's Association shall then have 30 days to respond in writing. If the Plaintiff is dissatisfied with the response, she may then petition the Court for permission to further publish information concerning the alleged violation. No publication which is otherwise prohibited above shall occur without prior court approval.

C. Attorney Fees

The Defendant also seeks recovery of its attorney fees. The Court has previously Ordered in Section 1 above that the Defendant is entitled to recover its attorney fees in defending the Plaintiff's complaint. The Court is also satisfied that the Defendant is entitled to recover its attorney fees in seeking an injunction both under the terms of the covenants (to assure quietenjoyment) as well as the provisions of CCIOA which permit the award of attorney fees in covenant enforcement actions. However, the Defendant has not presented any authority for awarding attorney fees in libel claims. The primary purpose of the libel claim was to obtain an award of damages, not to enforce the covenants. See Colorado Homes, Ltd. v. Loerch-Wilson, 43 P.3d 718 (Colo. App. 2001). Accordingly, the Defendant is not entitled to recover its attorney fees incurred in pursuit of the libel action.

Within 20 days, the Defendant is Ordered to submit an affidavit in support of its claimed attorney fees, and if possible, separate from the total amount those fees incurred in the libel claim. If the Defendant is not able to separate those fees, the Court will make an determination. If the Plaintiff requests a hearing on the reasonableness of the Defendant's fees, within ten days a request for hearing shall be filed.

So Ordered October 24, 2007.
BY THE COURT
THOMAS L. KENNEDY
DISTRICT COURT JUDGE

******************************

Here's a copy of my attorney's legal ARGUMENT concerning my claim that certain Amendments of my HOAs Covenants and Assessments were invalid.

C. THE TRIAL

The assessments were imposed under the 2003 amendment (Tr., Vol. 4, p. 24, l. 25, to p. 25, l. 3). Jackson based her claim of invalidity of the assessments on the language quoted above, claiming all four post-1977 amendments were not validly adopted by the BLM owners as required by the 1977 covenants, and on her belief that the 1977 covenants -- the only valid covenants in Jackson's belief -- did not permit such assessments. She then was countersued by the Association for the five claims (only three of which -- injunction, defamation, and attorneys' fees -- went to trial, the other two being resolved by pre-trial dispositions in Jackson's favor).

The Association's original defamation counterclaim (Vol. 1, p. 13) alleged no facts or specifics. Jackson filed two motions in limine, one based on the one-year statute of limitation and the other based on the person allegedly defamed (Vol. 3, pp. 457-462). The trial court denied both motions (Vol. 3, pp. 500-501). On May 21, 2007, after denial of Jackson's motion to dismiss (Vol. 3, pp. 463-467 and 500-501), the Association filed an amended defamation counterclaim alleging 53 separate claims of defamation.

Jackson's declaratory claim and the Association's remaining three counter-claims were then tried, resulting in the order attached in the appendix, and this appeal followed raising the six issues.

III. ARGUMENT
A. Amendments of 1977 Covenantsand Assessments

"Construction of covenants is a question of law which we review de novo." Mauldin v. Panella, 17 P.3d 837, 839 (Colo. App., 2000).

The 1977 covenant amendment procedure-- paragraph 14 quoted above on page 4-- is unambiguous. The 1977 covenants can be amended at the ten year windows of opportunity stated in that paragraph (now changed after May 26, 2006, by amendment to C.R.S. - 38-33.3-217). Under that paragraph 14, to change the covenants at a window of opportunity (the rule prior to May 26, 2006- Mauldin v. Panella, supra) four requirements must be met: (i) the change must be embodied in an instrument, (ii) that instrument must be signed by the owners, (iii) the number of owners signing must be a majority, and (iv) that signed instrument itself must be recorded. Anything less is not compliance with paragraph 14. None of the post-1977 amendments was signed by any owner (Acc. F., Exs. 3, 6, 7, & 8). Each amendment sets forth, in some form, an affidavit of a ballot vote.

Paragraph 14 of the 1977 covenants is a common covenant provision. The reason why covenant drafters state that the recorded amendment itself must be signed by the owners is straight-forward -- to remove all doubt, solely from the recorded document itself, that the owners themselves, by their signatures, actually did adopt the amendment. The drafters' plain language controls. Fort Lyon Canal Company v. High Plains A & M, LLC, 167 P 3d 726, 729-730 (Colo., 2007). A member of the public-- an owner, a prospective purchaser, or even a stranger -- has the right to rely on the public record. City of Lakewood v. Mavromatis, 817 p.2d 90 (Colo., 1991) . Bray v. Trower, 286 P. 275 (Colo., 1930), is an excellent example of Mavromatis. Here, that reliance is impossible. See, e.g., Tr., Vol. 1, p. 27, l. 24, to p. 31, l. 12.

Greenbrier-Cloverdale Homeowners Association v. Baca, 763 P.2d 1 (Colo. App., 1988), states, "A restrictive covenant that is clear on its face should be enforced as written" (at 2) and "Had the drafters of the covenant desired to set forth limits as to the relational status of the persons pursuing "residential uses" within the dwellings, they would have done so" (at 2). Good v. Bear Canyon Ranch Assn, Inc., 160 P.3d 251 (Colo. App., 2007), states, "Where the written language is definite, a reviewing court must follow the dictates of plain English in interpreting a covenant, and a covenant that is clear on its face will be enforced as written" (at 253). Allen v. Reed, 155 P.3d 443 (Colo. App., 2006) says (at 446), "Colorado courts have refused to rewrite covenants or add terms that are not contained in the covenants. * * * Accordingly, it was error for the trial court to add any definition not otherwise stated in or referenced by the covenants." There is nothing-- not one thing-- that is unclear about paragraph 14 of the 1977 covenants. "The district court is allowed to amend a declaration only in very narrow circumstances not applicable here. See CRS 38-33.3-217(7)(a), C.R.S. 2003. Silverview At Overlook, LLC, v. Overlook At Mt. Crested Butte Limited Liability Company, 97 P3d 252, 257 (Colo. App., 2004).

Despite the above doctrines being brought to the trial court's attention (Vol. 1, pp. 114-171, esp. 114-121), the trial court did exactly what this court said a court cannot do. It "amended" paragraph 14 to allow the ballot-and-affidavit procedure to "validate" each of the post-1977 amendments. App., p. 2, first paragraph.

The post-1977 amendments, and all of them, are void. Documents that are void remain void. Void documents do not later somehow magically become valid.

Harding v. Heritage Health Products Co., 98 P.3d 945 (Colo. App., 2004) states the doctrine best. There, the directors and shareholders of a private, closely held corporation unanimously approved two amendments to the bylaws. Six years later, "dissension arose among the shareholders." At issue (among others) was the validity of the two bylaw amendments unanimously approved six years earlier. The corporation (in essence the Schakel family, which owned 56% of the stock and which six years earlier had voted for the two bylaw amendments) claimed both were void. This court agreed and held both amendments void (not voidable). A minority shareholder (Harding) asserted that the corporation had waited too long in claiming that the amendments were invalid, asserting "waiver, estoppel, ratification, laches, and [importantly] the statute of limitations" (at 949). This court rejected all of Harding?s assertions. It declared both bylaw amendments void and said, (i)" ... equitable doctrines cannot be used to enforce an illegal or void agreement" (at 949) and (ii) "Here, because the super majority voting bylaw provision is void, Harding is precluded from a remedy under equitable principles" (at 949). Neither the passage of time (statute of limitation) nor anything else does anything to validate a void document. It is a nullity. It never happened. No rights can be based on it.

The 1977 covenants are the only valid covenants for BLM. Paragraph 11 of these covenants, consisting of five subparagraphs, is the only provision that addresses monetary obligations. It mentions only "dues" and "fees." The second subparagraph says in material part, "Payment of dues to ROA . . . is a requirement concomitant with property purchase and ownership. Periodic dues and/or fees will be required ...." "Dues" are then defined in the fourth subparagraph. The fourth subparagraph also says in material part (emphasis supplied), "To finance ROA, $100.00 for each parcel will be paid by the purchaser of said parcel at time of purchase . . . . This fee will be matched by Declarants ...." That $100.00 fee is all that is said about "fees."

The dues payable under the December 2005 invoice (Acc. F., Ex. 14) are not contested by Jackson. The assessments imposed under it are. The term "assessment" did not appear until the 1992 amendment (Acc. F., Ex. 6, Art. X). "Fees" are not specifically defined in the 1977 covenants. Extrinsic evidence is admissible to show what "fees" meant as used in the 1977 covenants when the Association began managing BLM a short time later. Fort Lyon Canal Company, supra.

John Donovan is an early purchaser in BLM ( circa 1978-1979) and was an original director of the Association . Tr., Vol. 4, p. 106, l. 25, to p. 107, l. 22. He has firsthand knowledge of what the terms used in the 1977 covenants actually meant. He testified that "fees" meant what the 1977 covenants said they meant "the one-time $100.00 matched payment (Tr., Vol. 4, p. 119, l. 25, to p. 123, l. 6) -- which went into a general fund to be used for maintenance on the ranch" ( Id., p. 120, ll 9-18). He also testified that "Those were the assessments at that time" ( Id., ll.17-18).

Mr. Donovan's testimony was unrebutted. Despite such uncontroverted evidence, the trial court, again, "amended" the 1977 covenants and held that the 2005 "assessments" were validly imposed under the 1977covenants, apparently as a "fee" (App., p. 1). This was error. Quinn v. Castle Park Ranch Property Owners Association, Inc., 77 P3d. 823, 826 (Colo. App., 2003) (special assessment levied under bylaws of association but not authorized in original declaration was invalid). Even if the trial court had completely discounted Mr. Donovan's testimony, ambiguity in covenants (do "assessments" in 2005 mean the same thing as "fees" in 1977?) are resolved in the property owner's favor. See Baca , supra.

The post-1977 amendments are void. The 2005 assessments cannot be imposed under void documents. The 1977 covenants do not authorize the 2005 assessments, most certainly not the one to bring "closure" to Jackson to silence her criticisms.

****************

Next: Part IV of "Did The Trial Court Err?" regarding the "Trial" and "Defamation" claim

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Jan Jackson

Florissant , CO

Jan Jackson has posted 476 stories and 37 comments since joining on 9/14/2005. Jan Jackson 's average story rating is 4.53.

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