Article Contributed on: 12/16/2008 3:25:13 AM
The following is a short summary, in English not legalese, about the Colorado Appeals Court decision in my lawsuit against my HOA.
Looks like my attorney and I racked up mostly a win with our lawsuit against my HOA in the Colorado Court of Appeals! Here's what we won:
* The Court of Appeals ruled against my HOA re its defamation claim against me.
* The Court of Appeals ruled against my HOA re its injunction claim against me.
* The Court of Appeals ruled against my HOA re its lien foreclosure claim against me.
* The Court of Appeals ruled against my HOA re most of its attorneys' fees claims.
The defamation and the injunction judgments were "vacated" by the Colorado Appeals Court. In my case, that means those particular judgments were "remanded" -- sent back to -- the District Court "with instructions." That is, the District Court must now apply specific laws and standards to their judgments in my case. Something the District Court did not do in its original judgments against me. For now, however, those District Court judgments against me have been overturned and nullified.
The District Court (Judge Kennedy) had, early on, dismissed my HOA's claim against me for "interference with contract" (a dismissal which my HOA did not appeal)..
The District Court (Judge Kennedy) also had, early on, denied my HOA's attempt to join my husband, and others, to my case which my HOA also did not appeal.
So, what the Colorado Appeals Court decision shows is that my HOA mostly lost, at the appellate level. My HOA lost its defamation and injunction claims (the District Court had severely limited my Constitutional right to free speech, for example). My HOA also lost its appeal of their lien foreclosure claim, i.e., they tried to take my husband's and my home and another property away from us. My HOA also lost most of its attorneys' fees claims (all of them except for some attorneys fees associated with an assessments part of my case).
The unknown, in any case that has been remanded back to a District Court with instructions, is whether the District Court judge will apply those Appeals Court instructions (specific laws and standards) once he gets the case back in his court. Will he, once again, just do what he wants -- as he (or she) may have done initially? Yes, he may, sad to say, because some judges really do make judgments about legal matters any way they want to, without any, or very little, basis in law. (sigh)
Myown private attorney has always seemed to me to be the kind of attorney who tries to see to it, to the best of his ability, that justice is done. My HOA's attorney, on the other hand, is (or was) also the attorney for an HOA in Colorado Springs which was recently involved in a loyalty oath mess. That is, the HOA's board of directors tried to make all of the homeowners sign what was said to have beena "loyalty oath" to the board. Why their (and our) HOA attorney wouldn't immediately put a stop to something like that is, at least at this time, unknown to me.
The former president of my HOA is a very wealthy developer-builder -- both in California and here in Colorado, as well as a public official in Colorado.
Couple what appears to be a power-and-money-seeking HOA attorney with what appears to be a very wealthy power-and-money-seeking HOA president, then put them in the same homeowners association, and one probably has all the makings of an emotional and financial disaster for any homeowner in that HOA who tries to live in it in a facts and law way.
HOAs..... They've just gotta be permanently removed from state control in Colorado. Hopefully we HOA homeowners and others will be able to accomplish that in November of 2010.
Jan