My HOA

AHRC NEWS SERVICES
Press Release

TRIAL JUDGE'S ORDER:
JANICE JACKSON vs [her HOA]

December 08, 2007

By Jan Jackson
Florissant, Colorado - After many years of difficulties with my homeowners association-common interest community, my attorney and I filed a very simple request for a Declaratory Judgment concerning the legality of some of the more important issues between myself and my HOA/CIC in the Teller County District Court in Cripple Creek, Colorado. Out of that simple request arose several cross-complaints by my HOA's CAI attorney. As a consequence of one of those issues (I was accused of defamation) a trial was held in the said Court. After five days of testimony, my lawsuit/trial came to an end on September 26, 2007. On October 24, 2007, we received the following order/judgment from the trial judge.

I cannot make any personal comments about the lawsuit or trial since an appeal was filed in the Appellate Court in Denver, Colorado, a few days ago. I can, however, as far as I know, post here what is already in the public records at the Teller County Courthouse.

The trial judge's Order (below) is but one of the many documents in the entire public record of the above-mentioned trial, as is the trial transcript. I have ordered the entire transcript from the trial court reporter (recorder), but have not yet received it. When I do -- it is estimated to be delivered to me around the middle of December -- I will begin posting sections of it, a little bit at a time, for discussion purposes among those who read it.

Jan

DISTRICT COURT, TELLER COUNTY,
COLORADO

Court address:
P.O. Box 997
101 West Bennett Ave.
Cripple Creek, CO 80813
(719) 689-0450

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

Court Use Only
Case Number
06CV23
Division 11

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 the Court 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 quiet enjoyment) 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

Post Extras:

It appears that the end of the road is in sight for homeowners associations (HOAs) and common interest communities (CICs) because the corrupt HOA/CIC "cat is now out of the bag" nationally, and everybody and their brother is aware of its corruption.

But are corrupt homeowners associations just a part of the entire United States coming apart at its political, social, financial, legal, ethical and moral seams? It appears so.

Hang onto your seats, everyone. It looks like the rest of the road to whatever destination awaits us is going to be a very bumpy ride.

Below are some excerpts from a recent American Homeowners Resource Center (AHRC) newsletter. To see the entire contents of the newsletter, to read comments about each news summary, or to make comments, please click on, or go to, the url at the end these news summaries.

Jan

American Homeowners Resource Center
www.ahrc.com
News Today: December 12, 2007

The news summaries provide links to the full text of the story. [See url at the end of the news summaries]You can add your comments and ideas to each of these stories by clicking on the story link, and clicking "Comments" at the end of each story.

JANICE JACKSON vs [her Homeowners Associatiion] [Press Release]
Judge has ordered me not to publicly mention the name of my Homeowners Association /CIC , or the names of board or other members of my HOA/CIC
Dec 7, 2007 by Jan Jackson
The following is a section of the transcript of the trial in my case. The complete transcript will be available to me (printed copy) on or about the middle of December.
Read More... | View comments (6) | Post comments

TRIAL JUDGE'S ORDER: JANICE JACKSON vs [her Homeowners Association] [Press Release]
Dec 11, 2007 by Jan Jackson
After many years of difficulties with my homeowners association-common interest community, my attorney and I filed a very simple request for a Declaratory Judgment concerning the legality of some of the more important issues between myself and my HOA/CIC in the Teller County District Court in Cripple Creek, Colorado. Out of that simple request arose several cross-complaints by my HOA's CAI attorney. I cannot make any personal comments about my lawsuit and trial since an appeal was filed in the Appellate Court in Denver, Colorado, a few days ago. I can, however, as far as I know, post here what is already in the public record at the Teller County Courthouse.
Read More... | View comments (2) | Post comments

My $250,000 trust fund with UBS Bank has vanished [An Article]
The Attorney General and United States Congress have refused to investigate this bank fraud
Dec 12, 2007 by Willowdean Vance
The banking Industry is getting away with more crime than any outlaw holdup ever produced...and United States Congress has completely failed to investigate the banking fraud wiping out lifetime savings accounts like mine in the world's richest banks like "UBS" in Zurich, Switzerland, where my entire trust fund of $250,000 vanished after a UBS director insisted we sign a UBS power of attorney to him to open the trust purchased by Lester Wilken of Laguna Woods, California for my daughter Diane Morrison and myself, Willowdean Vance as trust fund gift in 1999. he UBS Bank Board refused to investigate the missing trust fund of $250,000 which left me, a World War Two 80 year old widow bankrupt and my 63 year old daughter, victim of Parkinson wiithout medical care needed because UBS Bank does not protect the clients who deposit funds in their bank or hold paid employees and directors accountable.
Read More... | View comments (0) | Post comments

Public funds will be protected - British Prime Minister [Press Release]
Dec 7, 2007 by Reuters
Public funds will be protected - PM . The British Prime Minister has promised that public funds will be protected in any agreement reached over the Northern Rock building society. Northern Rock, a leading mortgage lender, foundered in September due to the global credit crunch - the sudden slowdown in income caused by debtors, particularly high-risk mortgage borrowers in the United States "subprime" market, defaulting on their repayments.
Read More... | View comments (0) | Post comments

How servitudes (covenants) were used to legalize Homeowner Association powers [An Article]
And the courts have held them superior to the Constitution
Dec 11, 2007 by George K. Staropoli
The following is taken from page 5 of "THE MASS MERCHANDISING OF PLANNED COMMUNITIES: HOW AMERICANS LOST THEIR CONSTITUTIONAL & PROPERTY RIGHTS", August 31, 2006, which is an analysis of THE HOMES ASSOCIATION HANDBOOK, Urban Land Institute Technical Bulletin #50, 1964 It is Part I of the unpublished THE TRUTH ABOUT THE EMERGENCE AND QUIET ACCEPTANCE OF PLANNED COMMUNITES AND HOMEOWNERS ASSOCIATIONS. In this manner, the Handbook set the stage for HOA local autonomy which the courts have repeatedly upheld over the US and state constitutions ,
Read More... | View comments (1) | Post comments

Letter to Georgia Homeowner News - Taffy Rice - AHRC Georgia [Directory Letter]
Update on Request on Due Process Hearings & Property Takings Using Courts
Yesterday you said that Burton Wides, the consultant to Chairman John Conyers U. S. Congress Judiciary Committee had informed you he would be recommending a hearing on "Due Process Violations" this week and had asked for one spokesperson to the Committee and that you would be the spokesperson. As requested, can you please submit an update for homeowners on AHRC so they are kept abreast and can participate and communicate with their representatives to make this hearing effective for all conce
Read More... | View comments (0) | Post comments

Wimbledon Village Association [Directory Entry - Homeowners Associations]
Wimbledon Way
Costa Mesa, CA 92626

The situation with Homeowner Associations (CIDs)is abominable. Given what I see, it like the Chinese Red Guard gone wild. Homeowners are guilty until proven innocent in any dispute with ignorant Boards of untrained lay people with private axes to grind. I am just getting acquainted with this abusive legal abyss. Wimbledon Village Association homeowner. - 11/4/07
Lawsuits: A motion was made by Gary Petrak , board president seconded by Steve Velasco and carried to instruct HOA attorney David Cane to take legal action in Superior Court against the owners of xxxxx for the unauthorized roofing material and failure to execute the Covenant sent to them on June 25, 2007. - August 14, 2007
View Directory Entry | View Comments(0) | Post Comments

David E. Cane - Cane, Walker & Harkins LLP [Directory Entry - Homeowners Associations]
17821 East Seventeeth Street
Tustin, CA 92780

PLAYHOUSE BECOMES PAYHOUSE - AHRC News Services
View Directory Entry | View Comments(0) | Post Comments

Cane, Walker & Harkins LLP [Directory Entry - Lawyers]
17821 East Seventeeth Street, Suite 210
Tustin, CA 92780
I am being sued...
View Directory Entry | View Comments(0) | Post Comments

MediaChannel - Globavision, Inc. - Danny Schechter [Directory Entry - Media]
575 8th Avenue
New York, NY l0018

The Credit Crisis Is Becoming A Political Battleground - Danny Schechter
Danny Schechter , a journalist is founder of MediaChannel and executive editor. He is also a founder and vice president/executive producer of Globalvision, Inc.,
Rory O'Connor, a journalist is co-founder and president of Globalvision, is also president of Globalvision New Media.
What we do MediaChannel is concerned with the political, cultural and social impacts of the media, large and small. MediaChannel exists to provide information and diverse perspectives and inspire debate, collaboration, action and citizen engagement.cont..
View Directory Entry | View Comments(0) | Post Comments

California Attorney General refuses to investigate board's illegal activities
Bill Lockyer tells seniors to hire their own attorney
Comment 11. I too contacted the Attorney General's office for help with a corrupt HOA in Southern California
Comment 12. The bottom line is, sell, and don't buy again in a Homeowners Associationl activities
Please click the link below to •View Article •View Comments(12) •Post Comments
California Attorney General refuses to investigate board's illegal activities

Playersplace Townhomes-Lienco [Directory Entry - Collection]
4441stirling road
Ft Lauderdale, FL 33314

Attorney for the firm Lienco
View Directory Entry | View Comments(0) | Post Comments

Planned Real Estate Development [Directory Entry - Government Departments and Offices]
101 South Broad Street - 2nd Fl.,
Trenton, NJ 08625-0805

The New Jersey Department of Community Affairs (DCA) is a State agency created to provide administrative guidance, financial support and technical assistance to local governments, community development organizations, businesses and individuals to improve the quality of life in New Jersey. DCA offers a wide range of programs and services that respond to issues of public concern including fire and building safety, housing production, community planning and development, and local government management and finance.
View Directory Entry | View Comments(0) | Post Comments

Sherwood Forest Neighbors Association [Directory Entry - Elected Officials]
19 Sherwood Dr.
Becket, MA 01223
Comment 1. Under current law, Sherwood Forest residents have no legal obligation to pay the assessments.- Attorney General "This is an antiquated association who recently went to an extreme BOD and 12 represenatives,12 alternates, 2 at large delegates,then assessments were issued without authority resulting in Attorney. General finding they hold no taxation powers.
View Directory Entry | View Comments(2) | Post Comments

Letter to Carl N. Edwards, J.D., Ph.D. [Directory Letter]
Supplementation to : An American dream sours
Regarding your request on the article "An American Dream Sours" we would be happy to publish your supplementation. Please use the News Submission or Comments- CNN would like to profile someone who has been battling their Homeowners Association Form and include both plaintiff and defendants complaints, motions and rulings by the Court to support your statements.
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CNN would like to profile someone who has been battling their Homeowners Association
Looking for a New York, New Jersey or Connecticut homeowner victim of an abusive HOA
Civil lawsuits by homeowners and a criminal complaint
Please click the link below to • View Article • View Comments • Post Comments
CNN would like to profile someone who has been battling their Homeowners Association

http://www.ahrc.com/new/index.php/src/tools/sub/newsletter/action/display/id/887

Post Extras: