Are you a vexatious litigant?

I would like to call attention to those frustrated homeowners with a legitimate complaint against their HOA who file every little grievance in their lawsuit.  It weakens the focus of a valid complaint because the judge will quickly see that it is a general unhappiness with the board’s decisions but not violations of law or the governing documents.

Be careful! Continued court filings by the homeowner who is not getting the results that he is seeking can lead to being declared a vexatious litigant and his complaint dismissed. The following is a good example of what can happen and why. It was an Arizona complaint against a reputable HOA attorney. Please note that I have omitted the reputable HOA attorney’s named in this litigation as the party was deemed a vexatious litigant.

The litigation [marriage dissolution] has sparked over forty additional lawsuits in Arizona courts, many of which are against the attorneys. It alleged the attorney agreed to represent him in a legal malpractice lawsuit and accepted money for the representation, then never performed the work and withdrew without telling him. I’ve seen these accusations galore.

[The attorney] moved under A.R.S. § 12-3201 to declare the plaintiff a vexatious litigant. He had filed multiple responses – some 40 — opposing the motion.  The trial court held that the responses,

“are unsupported by facts as alleged, argue legal positions which are not founded in the law or reasonable interpretations of the law, re-argue the same positions again and again with no regard for rulings of the Court, and promote abuse of process.”

(Now, this position by the court stated above can be found in very similar warnings against  attorneys. See Rules of Civil Procedure in your state, usually R 11(a) or (b). But under a “professional courtesy” defense  one attorney will not charge another attorney for fear of reciprocal complaints. You would need the court or legislator to file such a complaint with the State Bar.)

The trial court, therefore, concluded “there must be some restraint regarding new filings in Civil Court to ensure cases to be filed have a concisely plead basis in fact and law,” found Danko to be a vexatious litigant.

The plaintiff’s error was not to follow the Rules of Civil Procedure (Rule 13(a)(4)) requiring a brief that “requires an opening brief to contain a ‘statement of the case’ that must concisely state the nature of the case, and a “statement of facts’ that are relevant to the issues presented for review.”

And most importantly,

“the brief must include an “argument” section with the “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authority and appropriate references to the portions of the record” relied on.”

(Very important!  In general, the requirement for filing a brief as specified above is also required when filing a lawsuit.  Most are thrown out for this failure to comply. In other words, as I have argued, you need solid facts and hard evidence in order to win.)

The appellate court found the plaintiff lacking in substance and declared him a vexatious litigant.

Law review article talks HOA constitutionality

While the title of the Ken Stahl Pepperdine Law Review article addresses the “validity of private deed restrictions” (CC&Rs) and “an unconstitutional taking” (eminent domain) with respect to affordable housing, Stahl’s investigation covers many of the HOA constitutionality concerns that I’ve raised over the years. He warns about legislative “overrides” – statutes that impinge on CC&Rs – and the balance of governmental powers between the state/county and private, contractual governments.

View the full response at HOA Constitutional Government.

Research memorandum examples

I chose 2 document examples, a court analysis and an issue or legislative proposal memo. The case study dates back to 2006 and the AZ Office of Administrative Hearings (OAH) adjudication of HOA disputes. It strictly follows my suggestion on understanding a legal decision. View OAH.

The second document is a presentation of arguments regarding a proposed legislative reform bill, based on a recent court holding. I chose an important but complex Florida case (Woodside Village Condominium Assn v. Jahren, 754 So.2d 831, Fla. 2 Dist. App. 2000) to address ex post facto amendments and eminent domain takings by HOAs. It required a separate examination of 4 constitutional issues. I wrote: “This Florida Supreme Court case, supporting such amendments as valid, touches on important constitutional questions of due process and the equal protection of the laws.” View proposal arguments.

Please feel free to discuss with others and to ask questions for clarifications. A dialogue will go a long way.

Legislative proposals and legal memoranda

The general role of VCL can be found here:  VCL-HOA. However, this document is geared to reform legislation efforts. It addresses a methodology to prepare focused reform arguments before the legislature and the courts.  VCL will play no direct role with respect to the activities of any social media reform group adopting this approach.

  1. Private group legislative proposals

There are several FB private groups that have proposed a number of HOA reform bills along with a lengthy description and arguments in support of the proposed bills. With all due respect to the hard work of these groups, these proposals should be made part of an instructional and educational  podcast program with each session covering one proposed bill. Each proposal must be taken down a level to focus on what reality demands. It must be instructive in an educational setting. The homeowners, and especially the advocates, must also be made aware of the legalities and judicial  process to achieve success.

The Issues Study Committee methodology set forth by VCL-HOA is a means to improve the credibility of advocates going forth before the legislatures and in the courts. The groups can use the materials they already presented and structure the podcast in accordance with the VCL-HOA approach. That’s a pro-con analysis. Con? Yes! It will be needed to address the CAI/HOA attorney responses that, in the past, have left many advocates unprepared to rebut the opposition. 

In my active days before the AZ legislature, I’ve witnessed CAI getting 5 -10 minute times while advocates got just 3 minutes, and they had the sequence of speakers arranged so advocates could not rebut their arguments.  What is necessary is to a planned group of advocates, one group to carry their arguments and the other to come after to rebut  CAI.

  1. Legal memorandum format for committee report

The legal memorandum is the recommended report format for the committee analysis of proposed legislation.  Law clerks and judges use this format – pretty much standard but not always followed – to report the results of their findings on a specific issue or in answer to a specific question to be addressed by the court.

The format is simple:

  1.  Statement of the issue or question being addressed, usually in terms of specific laws or contract covenant.
  • A statement of the relevant facts, both pro and con —  plaintiff and defendant. This could be short or complex. The more questions asked, or facts included, will overcome most homeowners seeking justice. [Keep it short and to the point. Don’t make it a free for all on every little complaint].
  • The judges’ discussion and analysis of the above items. Could be short or involved depending on the above.  Here the decisions on the arguments raised by both parties are answered, in several such conclusions or one decision. Generally, a short paragraph or sentence which could be: “Is distinguished from . . .”, “without merit . . .”, “on point . . .”, etc.
  • The holding or opinion of the court as applied to the issue or question raised above.  Usually the last paragraph: “Therefore, we find . . .”

Your narrative on each issue should be reformatted accordingly in order to make your findings (4) acceptable after a thorough analysis and discussion (3).  That requires statements according to (1) and (2) above. The result will be a more focused argument.

In regard to court case analysis, your approach is to focus on (1) with some understanding of the details from (2), and to find opinions (3) and how the court decided the case after all (4). By following this approach, you can discover the important and relevant opinions based on the law and case histories. With many court opinions the reader can learn and understand just what all the laws in question are about. You may find many surprises.

It is my recommendation that proposed legislative findings adopt the legal memo format; it can be used before the legislature and court cases.