Update to EFPOA Members RE: Legal Cases

Bob Phelps



At the annual meeting it was announced:


Covenants case: The Association, through their attorneys, made numerous attempts to schedule a hearing so the judge could rule on the allowable fees. The plaintiffs (S & K Shapiro and F Wolf) delayed the scheduling of the hearing, and also appealed the judge’s decision.  After the plaintiffs chose not to file all of the appropriate documents as requested by the appellate division of the district court, the appeal was dismissed by the court.. Finally a hearing was scheduled on attorney fees to be awarded the Association. The day before the hearing the plaintiffs, through their attorney Victor Boog, agreed to settle for $12,000 and our attorneys agreed to reduce their fees to $12,000.  The plaintiffs also agreed not to re-file their appeal of the judge’s decision that the covenants were properly recorded and not “spurious”.   Additionally, the settlement included the Association’s removal of the east gate newspaper rack, bulletin board stand, and mailbox pad at the old Upper Ranch Road location by October 15th. That removal had previously been agreed to by the Board.  The total cost of the challenge to the Association’s covenants was about $1,000 for fees paid for a legal consultation with a second expert and miscellaneous expenses (any costs associated with removing the newspaper rack and mailbox pad will be extra). The settlement included a requirement for immediate payment and the Association felt the smaller immediate settlement was a better path than the uncertainty of a larger payment in the future.


Access case: Since the annual meeting through their attorneys the Association has made numerous attempts to schedule mediation. The Association even agreed to pay the lion’s share of the mediation fees. The defendants have found numerous excuses not to agree to a mediation schedule. Meanwhile the Association filed a motion to amend their original complaint to provide some additional clarification and to add Kevin O’Connell, a Block 1 homeowner, as an additional plaintiff. The motion was granted and the Association filed an amended complaint.


Finally the Association’s attorneys convinced the judge to hold a telephone conference at which a deadline was set for scheduling of mediation. The deadline is only a date by which mediation must be scheduled; it’s not a deadline by which mediation must have occurred. It’s also not until December. The defendants objected to any deadlines arguing that mediation should wait until all their motions have been ruled on. They proceeded to file a flurry of motions during the last two weeks as follows (links are active):


The Association’s attorneys filed a response on 9/24 to the Motion to Join Indispensible Parties. The attorneys are also preparing responses to the other motions as appropriate, are preparing discovery to serve on the Dunwodys,  and are still trying to schedule mediation. Everything still looks favorable for the Association except for the fact that the defendants have been somewhat successful in delaying at every step and increasing the work and expense.