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July 25, 2005
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Case No: Civil Action No. 05-C-60 - Frickey v Glendale Farms Homeowners Association
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West Virginia
Other Court
County of Jefferson
Branch: Circuit Court
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Paula J. Frickey
Represented by: pro se
v.
Glendale Farms Homeowners Association
Inc. et al
Represented by: Linda M. Gutsell
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Summary
Breach of contract: Defendants failed to give 60 days' written notice to all homeowners before they changed the covenants and restrictions. Rules are arbitrarily enforced. Defendants have paid legal fees out of the road maintenance fund (i.e. "conversion).
Harassment and Denial of Quiet Enjoyment: Defendants threatened to tow Plaintiff's vehicles if even one tire was parked in the cul-de-sac that borders Plaintiff's property.
Changes to rules were arbitrary and capricious and only those rules that affect the "health, safety, and welfare of the entire community can be changed, per an attorney that Plaintiff consulted. Plaintiff insists that she is "grandfathered" by the rules that were in effect at the time she purchased her property.
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Causes of Action: Breach of contract: Defendants failed to give 60 days' written notice to all homeowners before they changed the covenants and restrictions. Rules are arbitrarily enforced. Defendants have paid legal fees out of the road maintenance fund (i.e. "conversion).
Harassment and Denial of Quiet Enjoyment: Defendants threatened to tow Plaintiff's vehicles if even one tire was parked in the cul-de-sac that borders Plaintiff's property.
Changes to rules were arbitrary and capricious and only those rules that affect the "health, safety, and welfare of the entire community can be changed, per an attorney that Plaintiff consulted. Plaintiff insists that she is "grandfathered" by the rules that were in effect at the time she purchased her property.
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Judge: The Honorable Thomas W. Steptoe, Jr.
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Lawsuit Text
IN THE CIRCUIT COURT FOR JEFFERSON COUNTY, WEST VIRGINIA
Civil Action No. 05-C-60
(Judge Steptoe)
Paula J. Frickey,
Plaintiff,
vs.
Glendale Farms Homeowners Association, Inc., aka Glendale Farms Estates Homeowners Association, aka Glendale Farms Estates, Inc.,
Janet E. Bailey,
Richard L. and Janice M. Duncan,
Daniel A. and Margaret Bryant-Gainer,
Luis A. and Cheryl S. Guerrero,
Erich Hosbach,
Byron J. and Diane V. Keller,
Franklin C. Moore,
Remigius Onzyshczak,
Sarah A. (Homan) Speck,
Defendants
REVISED COMPLAINT THAT INCORPORATES AMENDED
COMPLAINT PURSUANT TO PARA. 18 OF THE COURT'S
"ORDER ON MOTIONS" DATED MAY 26, 2005 (changes are
highlighted in red)
NOW COMES THE PLAINTIFF WHO PRAYS THIS COURT:
1. The plaintiff, Paula J. Frickey, is an unmarried individual residing at 295 Purdham Lane, Shenandoah Junction, WV 25442 and has resided at this address since August 1, 2001.
2. The plaintiff, Paula J. Frickey, purchased Lot 7, Section 1, of the Glendale Farms Estates Subdivision on July 26, 2001 subject to the terms, conditions, covenants, and restrictions of the common interest community set forth in the declaration entitled, "Covenants & Restrictions for Glendale Farms" (2 pages - undated) and currently owns the lot. The deed (EXHIBIT 1)conveying the lot to the plaintiff is recorded in Book 00950, Page 00490 in the Book of Deeds in the land records of Jefferson County, West Virginia. The Glendale Farms Estates Subdivision is located in the Shepherdstown District of Jefferson County, West Virginia.
3. Plaintiff brings this action due to breach of contract by defendants in accordance with the aforementioned "Covenants & Restrictions for Glendale Farms."(EXHIBIT 2) See Paragraph 6 a. below.
4. In accordance with Paragraph 18. of the "Covenants & Restrictions for Glendale Farms," Defendant Glendale Farms Homeowners Association, Inc. was required to notify all property owners 60 days in advance of any such proposed change to the covenants and restrictions. Such advance notice was not given to plaintiff on subsequent versions/addenda of the "Covenants & Restrictions for Glendale Farms" to include:
a. "Covenants & Restrictions as of October 27, 2002" (EXHIBIT 3); and
b. "Second Amended Declaration of Covenants & Restrictions Glendale Farms Estates," adopted on June 6, 2004 (EXHIBIT 4)
5. In addition, actions barred by the "Covenants & Restrictions for Glendale Farms" which were in effect at time of plaintiff's purchase and settlement on her property, were declared allowable in subsequent addenda referenced in Paragraphs 4. a. and b. above.
a. Such actions included Paragraph 8. of the "Covenants & Restrictions for
Glendale Farms" which prohibited burning or burying of trash on any property. Such burning occurred on defendant Janet Bailey's property which parallels plaintiff's property, as recently as January 17, 2005, as witnessed by plaintiff whose health is adversely affected by smoke resulting from all types of burning, especially trash and leaves. Pursuant to this paragraph only, the Defendants are Janet E. Bailey and Remigius Onzyshczak, individual persons in their own capacity.
b. Based on Paragraph 13. of the "Covenants & Restrictions for Glendale Farms" plaintiff was required to bury her propane gas tank, as communicated to plaintiff by her builder during July 2001. However, when plaintiff approached defendants in several homeowners association meetings regarding the above-ground tank in defendant Sarah Speck's front yard, defendants subsequently allowed for Ms. Speck's tank to remain above-ground and declared such in subsequent addenda referenced in Paragraphs 4. a. and b. above. Pursuant to this paragraph only, the Defendant is Sarah Speck, an individual person in her own capacity.
6. In addition, Plaintiff brings this action due to harassment and denial of quiet enjoyment of her property by the defendants (individual persons in their own capacity) to include, but not limited to the following:
a. Verbal and written threats (EXHIBIT 5) by defendants to tow any of plaintiff's vehicles that are parked in the portion of the cul-de-sac that borders plaintiff's property, a condition that was not addressed and/or prohibited in the "Covenants & Restrictions for Glendale Farms" that
existed at the time of plaintiff's purchase and settlement on her property. Plaintiff parked her 1997 Dodge truck and 2001 Honda Prelude car at the edge of the cul-de-sac prior to moving in to her house on August 1, 2001 and purchased her property based on its location in relation to the cul-de-sac. Plaintiff parked her vehicles and motorcycle trailer in this area for over a year before the issue was addressed by any of the defendants. Pursuant to this paragraph and paragraphs b. and c., and paragraph 7. below, the Defendants include the Glendale Farms Homeowners Association, Inc. and each of the individual defendants named in this complaint are individual persons in their own capacity as each signed the "Certificate of Adoption" on Page 6 of Exhibit 4 of the original complaint. Officers, Board Members, and/or the "Architectural Control Committee (ARC)" of the "Association" have NOT been identified to Plaintiff as of this date therefore Plaintiff is unable to address fully Para. 16 of "ORDER ON MOTIONS" dated May 26, 2005. Page 6 ("Certification of Adoption") of Exhibit 4 does not specifically identify the Chairman and any other board members of the Association.
b. The defendants demands to Plaintiff that she park her 3 year old motorcycle trailer at the rear of her property in a flood plain area that gets marshy and whose moisture will no doubt affect the condition of the trailer. At the time of plaintiff's purchase and settlement on her property, such requirement was not in place in the "Covenants & Restrictions for Glendale Farms." (see Para. 6. a above)
c. The defendants declaration during January 2005 that Plaintiff was behind in paying her $100 annual "fees" of which such fees were due and payable each successive year on the date of purchase of each respective property, in accordance with Paragraph 12. of "Covenants & Restrictions for Glendale Farms" that were in effect at the time of plaintiff's purchase/settlement on her property. The "Second Amended Declaration of Covenants & Restrictions Glendale Farms Estates," adopted on June 6, 2004, require payment of such fees each January. No provision for pro-rating fees paid previously by residents was addressed in such amendment. Plaintiff fears that liens will be placed against her property by defendants for alleged non-payment of annual fees for 2005. (see Para.
6. a above)
7. To conclude, Plaintiff brings this action due to the defendants issuing subsequent addenda, as referenced in Paragraphs 4. a. and b. above,
to the "Covenants & Restrictions for Glendale Farms" that were in effect at the time of plaintiff's purchase and settlement of her property, and which
addenda contain restrictions and provisions that are arbitrary and capricious. Only those items that affect the health, safety, and welfare of the entire community can be amended to the "Covenants & Restrictions for Glendale Farms" that were in effect at the time of plaintiff's purchase and settlement on her property. (see Para. 6. a above)
WHEREFORE, the Plaintiff, Paula J. Frickey, RESPECTFULLY REQUESTS that this honorable Court:
1. Determine whether or not Plaintiff is "grandfathered" by the terms and
conditions stated in the "Covenants & Restrictions for Glendale Farms" (Exhibit 2 of the original Complaint) that were in effect at the time she settled on her property (August 1, 2001). As the terms and conditions state in Para. 19 of Exhibit 4 of the Complaint, it takes a 70% vote of the lot owners to invoke changes and such changes could adversely affect the Plaintiff and present a hardship to Plaintiff. For example, if 70% of the members of the Glendale Farms Homeowners Association, Inc. vote to ban motorcycles, house pets other than dogs, cats, or birds for instance, Plaintiff would be required to get rid of such possessions. As Plaintiff stated in court on May 16, 2005, she fears that the situation with the defendants, as individuals in their own capacity, will deteriorate to the point that she will have no choice but to sell her property and move. Plaintiff, an unmarried individual with no dependents, purchased nearly 5 acres in rural Jefferson County, WV, an area surrounded by farms etc., for peace and quiet (except for the occasional train), and the ability to relax and live a leisurely lifestyle and to specifically get away from the restrictive "rules" that urban living imposes upon city dwellers. By amending the original covenants and restrictions at least twice, the defendants have demonstrated a desire to become more bureaucratic and restrictive as to what us 10 lot owners can/cannot do. In a homeowners meeting on October 13, 2004 Defendant Janet E. Bailey stated, when asked by the Plaintiff WHY they felt the need to retain attorney Braun A. Hamstead to draft a comprehensive set of rules and restrictions, to which she replied, "It was because of you, Paula." The other homeowners who were in attendance concurred with this statement. Therefore, Plaintiff has concluded that it was the intent of the homeowners to "gang up on
her." However, when violations have been addressed by Plaintiff in writing and at homeowners meetings, her concerns have either not been addressed or were declared, in writing, to have "limited merit" by the Glendale Farms Homeowners Association, Inc., as was the case with the 2 dogs belonging to the Bryant-Gainers and the Guerreros that were allowed to run at large throughout the subdivision, even though Plaintiff pointed out the Jefferson County leash law to the other homeowners.
2. Declare the covenants and restrictions of the addenda, as identified in Paragraphs 4. a. and b. of the Complaint, void and legally unenforceable due to the arbitrary and capricious nature of the provisions contained within;
3. Issue a permanent injunction restraining the defendants from issuing any additional addenda to the "Covenants & Restrictions for Glendale Farms" that were in effect at the time of plaintiff's purchase and settlement on her property unless the health, safety, and welfare of the entire community is affected;
4. Issue a permanent injunction restraining the defendants from placing liens against plaintiff's property for annual homeowner association fees already paid by plaintiff and which are current thru August 2005;
5. Issue a permanent injunction restraining the defendants from violating the "Covenants & Restrictions for Glendale Farms" that were in effect at the time of plaintiff's purchase and settlement on her property;
6. Issue a permanent injunction restraining the defendants from fining the plaintiff or towing plaintiff's vehicles from the edge of the cul-de-sac that borders plaintiff's property as such actions were not barred by the "Covenants & Restrictions for Glendale Farms" that were in effect at the time of plaintiff's purchase and settlement on her property;
7. Issue a permanent injunction allowing the plaintiff to park her motorcycle trailer on the edge of the cul-de-sac bordering plaintiff's property as such action was not barred by the "Covenants & Restrictions for Glendale Farms" that were in effect at the time of plaintiff's purchase and settlement on her property; and
8. Provide to plaintiff such other legal damages and equitable relief as this honorable Court deems just and proper as plaintiff has made good faith efforts to resolve the aforementioned disputes but whose verbal pleas
have been denied by the defendants. In addition, plaintiff's written pleas, up to and including January 31, 2005, have gone ignored by the defendants.
_________________________________
Paula J. Frickey
Plaintiff, Pro Se
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