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Did The Trial Court Err - Part I

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Contributed by: Jan Jackson on 5/29/2008

Below, readers here will find a copy of the first part of my attorney's Opening Brief which was filed in the Colorado Court of Appeals in Denver this month (May 2008).

It is the latest legal brief in my lawsuit against my homeowners association. Previous briefs (mine and my homeowners association's) in this case can be read at the courthouse in Teller County at 101 West Bennett Avenue in Cripple Creek.

Within the next 30 days, when my homeowners association files its reply to my opening brief, I will also post a copy of it here.

In the near future, I will also try to post all of the briefs in my case, which are on file at the above-mentioned courthouse in Cripple Creek, as a real-life learning experience for all homeowners association members (property / home owners) here in Colorado who are having problems with their homeowners associations.

Jan

COLORADO COURT OF APPEALS
Court Address:
2 East 14th Avenue, 3rd floor
Denver, CO 80203
Telephone: (303) 861-1111

DISTRICT COURT, TELLER COUNTY, COLORADO
101 West Bennett Avenue
P. O. Box 997
Cripple Creek, CO 80813
Telephone: (719) 689-2574

Lower Court Judge:
The Hon. Thomas L. Kennedy
District Court Case No. 06-CV-23

JANICE J. JACKSON,
Plaintiff-Appellant,

v.

B LAZY M RANCH OWNER'S ASSOCIATION, INC., a Colorado nonprofit corporation, Defendant-Appellee.

(COURT USE ONLY)
LAW OFFICE OF RONALD FRINDT, LLC
Ronald Frindt
121 East Vermijo, Suite 100
Colorado Springs, CO 80903
Telephone: (719) 328-1757
Fax: (719) 635-2493
Email: ron@frindtlaw.com
Attorney Reg. #5224
Case Number: 07-CA-2379

OPENING BRIEF

TABLE OF CONTENTS

I. ISSUES 1

II. STATEMENT OF THE CASE 2

A.Background 2
B. The Covenants and Amendments 4
C. The Trial 6

III. ARGUMENT 7

A. Amendments of 1977 Covenants and Assessments 7
B. Defamation 11
1. Statute of Limitation 11
2. The "Illustrative" Publications 13
3. Burden of Proof 13
4. The Person Defamed 14
5. Qualified Privilege 14
6. Standard of Review 15
7. The "Illustrative" Publications Themselves 17

IV. INJUNCTION 21

V. ATTORNEYS' FEES 25

CONCLUSION 29

APPENDIX (Order From Trial, October 24, 2007) vii

TABLE OF AUTHORITIES

C.R.S. § 13-80-103(1)(a) 11

C.R.S. § 38-33.3-123(1)(b) [CCIOA § 123(1)(b)] 25

C.R.S. § 38-33.3-123(1)(c) [CCIOA, § 123(1)(c)] 25

C.R.S. § 38-33.3-217 7

C.R.S. § 38-33.3-302(1)(k) [CCIOA § 302(1)(k)] 27

Allen v. Reed, 155 P.3d 443 (Colo. App., 2006) 8

Arrington v. Palmer 971 P2d 669 (Colo. App., 1998) 15

Bray v. Trower, 286 P.2d. 275 (Colo. App., 1930) 8

Brooks v. Paige, 773 P.2d 1098, 1100 (Colo. App., 1989) 16

C Bar H, Inc., v. Board of Health in and for Jefferson County, 56 P3d 1189, 1192 (Colo. App., 2002) 16

Churchey v. Adolph Coors Company, 759 P2d. 1336, 1341 (Colo., 1988) 15

Cinquanta v. Burdett, 388 P.2d 779, 780 (Colo., 1964) 18

City of Lakewood v. Mavromatis, 817 p.2d 90 (Colo., 1991) 8

Cloud v. Association of Owners, Satellite Apartment Building, Inc, 857 P.2d 435 (Colo. App., 1992) 27

Corporon v. Safeway Stores, Inc., 708 P2d 1385, 1390 (Colo. App., 1985) 11

Denver Publishing Company v. Bueno, 54 P3d 893 (Colo., 2002) 14

Diversified Management, Inc. v. The Denver Post, Inc., 653 P.2d 1103, 1108-1109 (Colo., 1982) 13

Even v. Longmont United Hospital Association, 629 P.2d 1100, 1103 (Colo. App., 1981) 12

Fort v. Holt, 508 P2d. 792 (Colo. App., 1973) 18

Fort Lyon Canal Company v. High Plains A & M, LLC, 167 P 3d 726, 729-730 (Colo., 2007) 7

Good v. Bear Canyon Ranch Association, Inc., 160 P.3d 251 (Colo. App., 2007) 8

Gordon v. Boyles, 99 P.3d 75, 78 (Colo. App., 2004) 14

Greenbrier-Cloverdale Homeowners Association v. Baca, 763 P.2d 1 (Colo. App., 1988) 8

Harding v. Heritage Health Products Co., 98 P.3d 945 (Colo. App., 2004) 9

In re: Water Rights of Elk Dance Colorado, LLC, 139 P.2d 660 (Colo., 2006) 20

Inter-State Detective Bureau, Inc., v. The Denver Post, 484 P2d 13, 133 1(Colo. App., 1971) 16

Keohane v. Stewart, 882 P.2d 1293 (Colo., 1994) 18

Langlois v. Board of County Commissioners of the County of El Paso, 78 P.3d 1154, 1158 (Colo. App., 2003) 23

Lininger v. Knight, 226 P.2d 809, 812 (Colo., 1951) 11

Mauldin v. Panella, 17 P.3d 837, 839 (Colo. App., 2000) 7

Nichols v. DeStefano, 70 P.3d 505, 507 (Colo. App., 2003) 27

Pueblo School District No. 60 v. Colorado High School Activities Association, 30 P.3d 752 (Colo. App., 2001) 21

Quinn v. Castle Park Ranch Property Owners Association, Inc., 77 P3d. 823, 826 (Colo. App., 2003) 10

Reddick v. Craig, 719 P.2d 340, 343 (Colo. App., 1985) 15

Sall v. Barber, 782 P.2d 1216 (Colo. App., 1989) 20

Silverview At Overlook, LLC, v. Overlook At Mt. Crested Butte Limited Liability Company, 97 P3d 252, 257 (Colo. App., 2004) 8

Spears Free Clinic& Hospital For Poor Children v. Maier, 261 P2d 489 (Colo., 1953) 14

Walker v. Associated Press, 417 P.2d 486 (Colo., 1966) 12

Walker v. Colorado Springs Sun, Inc., 538 P.2d 450 (Colo., 1975) 14

Wilson v. Meyer, 126 P3d. 276, 280 (Colo. App., 2005) 16

Woodard v. Board of Directors of Tamarron Association of Condominium Owners, Inc., 155 P3d 621, 624 (Colo. App., 2007) 14

I. ISSUES

1. Did the trial court err in concluding that covenants can be validly amended by a ballot-and-affidavit procedure when the amendment paragraph in the covenants themselves states that the amendment document that is recorded must be signed by the owners themselves?

2. Did the trial court err in concluding that the assessments imposed against the Plaintiff/Appellant's lots were validly imposed under the governing documents?

3. Did the trial court err in using as evidence of defamation - over the Plaintiff/Appellant's objections - documents published more than one year before May 21, 2007, the date the amended counterclaim was filed, when the statute of limitation for defamation is one year?

4. Did the trial court err in concluding that the "illustrative" articles and e-mails the Plaintiff/Appellant published and sent constituted defamation per se?

5. Did the trial court err in enjoining the Plaintiff/Appellant from making certain statements before requesting, and being granted, Association or court permission to make those statements, thereby imposing improper prior restraint on her right of free speech?

6. Did the trial court err in awarding the Defendant/Appellee attorneys' fees in defending against the Plaintiff/Appellant's declaratory claim and in connection with its injunction claim based on what the court concluded to be the Plaintiff/Appellant's breach of the "quiet enjoyment" phrase in the covenants?

II. STATEMENT OF THE CASE

A. Background

This case involves disputes between an owner of two lots in a rural platted subdivision in Teller County and the property owners' association for that subdivision. These disputes are summarized in the issues.

Three individuals who are not parties developed the B Lazy M Ranch subdivision of 40 acre lots in rural Teller County ("BLM") and on August 9, 1977, recorded the initial covenants for BLM (the "1977 covenants" - Accordion File [hereinafter "Acc. F."], Ex. 2). On August 12, 1980, the Defendant/Appellee B lazy M Ranch Owner's Association, Inc. ("Association") was formally incorporated to be the property owners' association for BLM and has functioned as such ever since. After 1980, the Association caused to be recorded four amendments to the 1977 covenants - in 1987, 1992, 1997, and 2003 (the "post-1977 amendments').
The Plaintiff/Appellant Janice J. Jackson ("Jackson") and her husband, Richard C. Thomas (who is not a party to this action), own two lots in BLM. Since the fence issue (Tr., Vol. 2,, P. 54, ll.3-8, and Vol. 4, p. 45, l. 25, to p. 48, l. 16), Jackson became increasing critical of how she believed the Association was being run and over the years submitted articles to newspapers and various websites and sent e-mails to members and directors of the Association expressing her criticism.

At the annual meeting of members in September 2005, at the request of the board of directors of the Association, the members voted for special assessments against the BLM lots, including Jackson's two lots, to obtain, among two other matters, "closure on Jan Jackson" (Acc. F., Ex 13). In December 2005, the Association delivered to Jackson its invoice for $3,470.00 for such assessments and dues (Acc. F., Ex. 14), stating a lien would be imposed if not paid by April 1, 2006. Jackson believed the assessments were improperly imposed and on February 9, 2006, filed a complaint seeking a declaration that the assessments were void (Vol. 1, pp. 1 to 6-65). That was her sole claim. The Association answered on March 8, 2006, and sought to add Jackson's husband (and others) to the action and counter-claimed against Jackson for (i) a foreclosure of the lien the Association claimed it had against Jackson's (and her husband's) lots, (ii) an injunction, (iii) defamation, (iv) interference with contract, and (v) attorneys' fees (Vol. 1, pp. 7-16).

On March 16, 2006, Jackson paid such assessments in full under protest (Vol. 1, pp. 172-178, and Tr., Vol. 1, p. 53, ll. 1-17) and has paid all assessments since.

The trial court denied the Association's attempt to add Jackson's husband and the others to this action (Vol. 1, pp. 62-63, and Vol. 3, p. 455). Jackson moved (i) to dismiss the interference with contract counterclaim (Vol. 1, pp. 68-72) and (ii) for summary judgment on the lien counterclaim (Vol. 1, pp. 114-171). The trial court granted both motions (Vol. 1, pp.88-91, and Vol. 3, pp. 453-456). That left Jackson's declaratory action and the Association's defamation, injunction, and attorneys' fees counterclaims for trial.

After trial held on July 18 and 25 and September 25 and 26, 2007, the trial court, on October 24, 2007, denied Jackson's declaratory relief claim, concluding that the ballot-and-affidavit procedure used in all four post-1977 amendments was sufficient to amend the covenants and that the assessments were validly imposed, including the one to bring closure to Jackson. The court also concluded that some of Jackson's publications (described as "illustrative") constituted defamation per se, granted damages for such defamation, and granted the Association an injunction against Jackson prohibiting her from making certain statements before requesting, and being granted, Association or court permission (Vol. 3, pp. 573-579, order of October 24, 2007, copy appended). The court also awarded attorneys' fees to the Association and later quantified the amount. Vol. 4, pp. 707-709 and 737-739.

(continued in Part II)

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Jan Jackson

Florissant , CO

Jan Jackson has posted 635 stories and 41 comments since joining on 9/14/2005. Jan Jackson 's average story rating is 4.43.

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