Summary of Access Litigation

 (Included in the 2011 Newsletter to homeowners.)

The current Elk Falls Board members were aware of the potential threat to subdivision access via Juniper and Jensen Roads (aka the Disputed Roads) when they were elected in 2009. They began immediately working to maintain legal access to the subdivision. The first attempt was an unsuccessful liaison committee that was charged to work out differences between the homeowners and the Dunwodys. I documented the situation just prior to the liaison committee’s demise in a letter to homeowners in late 2009. On February 23, 2010 the Dunwodys blocked Juniper Road with boulders. The EFPOA, through our attorneys, Fred Skillern and Nathen Osborn, requested and obtained a restraining order, clarification, and after a hearing a preliminary injunction ordering the Dunwodys to leave the roads open.

 

A diverting tactic by three dissident homeowners arguing our covenants were spurious documents was settled in favor of the EFPOA including an award of attorney fees to the Association.

 

In the last year and a half all EFPOA attempts at a quick settlement have failed. I will list only a few of the most significant events here but many of the other filings can be found at http://www.elkfallsranch.com. (I apologize if this site is not 100% accurate and complete.)

·        There has been little mention of a counter claim the Dunwodys filed against the EFPOA Board. Defending this counter claim has been the responsibility of a second team of attorneys led by Monica Lester. Defending the counter claim has paralleled the Disputed Roads access case.

·        Dunwody motion to join ‘indispensible’ parties to the case. This was an attempt to require all homeowners and anyone else with a interest in the disputed roads to be joined as a plaintiff in the case. This would have increased the complexity and cost of the case many times over with no advantage except to the Dunwodys. The judge ruled against the Dunwodys.

·        Dunwody motion to join Park County to the case. Again the judge ruled against the Dunwodys.

·        Court ordered mediation. We tried to schedule the mediation session months ago but the Dunwodys’ attorney, Victor Boog, insisted on delaying until the judge ruled on the indispensible party motion. A summary of the mediation session was included in the phone book mailing in February.

·        Dunwody motion for Summary Judgment. When the facts of the case are not in dispute, only the legal interpretation of the facts are at issue, upon request the judge can issue a summary judgment resolving the case. The Dunwodys’ submission was well over 200 pages including exhibits. Yet again the judge ruled against the Dunwodys.

Each of these took attorney time and money to formulate replies but each has been successful. In no way do I want to imply that the above activities reflect everything that took place. There were numerous addtional filings, requests for information (interrogatories), responses, depositions, etc. that cost time and money. Accompanying and supporting them was considerable behind the scenes effort by our attorneys and individual board members. We have been assured that our case is as strong as a legal case can be. Suffice it to say we have and are still making every effort to get our case scheduled for trial as soon as possible.