Throughout the 8+ years, I submitted numerous versions of this account with the Summit County District Court, the Division 5 Water Court, the Colorado Supreme Court, the Colorado Attorney Regulation Counsel, the Colorado Commission on Judicial Discipline, State Attorney Generals Ken Salazar, John Suthers, and numerous other elected and appointed authorities, to no avail. Therefore, I now bring it to the Court of Public Authority - the People.
THE FACTS
Through several Agreements made in 1980 and 1989, the Spring Creek Ranchers Association and seven Homeowners collectively, were made joint owners in vested and decreed water rights, roads, a community well, a water tank site, a sewer site, a refuse site, and approximately 300 acres of land (common properties), in the Spring Creek Ranch subdivision in Summit County, Colorado. I am one of the joint owners.
Because the jointly owned common properties are fundamental rights essential to life, as well as are essential to our home value and ownership within Spring Creek Ranch, and because the Homeowners and our Association were bound equally by the several agreements; the Homeowners voted to conduct all business of the Association per unanimous consent in 1989.
From 1989 to 1997, numerous attempts were made by adjacent ranch owners Nelson and Catherine Lane, and State water personnel to force the Homeowners to sign an Addendum to the 1989 Agreements. The Addendum served to forfeit Homeowners and our Association’s vested and decreed water rights for Spring Creek Ranch to the Lanes. All the proposals were unanimously voted down except for one in 1995. However, even the 95 Addendum was invalid because it lacked the required unanimous consent of all Homeowners.
In October 1997, four Homeowners (Joe Sergent, Bob Swenson, Lisa Lindley, and Clayton Beattie), created a new Association using our original Articles of Incorporation, and our original Spring Creek Ranchers Association name. They invoked their authority under the Colorado Nonprofit Corporation Act, elected a new Board of Directors and Officers, and adopted new By-Laws. They also adopted to conduct the business of the Association per a majority vote.
From 1997 to 1999, the new Board of Directors now joined with the Lanes and the State in pressuring Homeowners to sign the Addendum to the 1989 Agreements. I refused to sign, and refused to acknowledge the Board’s authority and their Association as valid.
In April 1999, Nelson and Catherine Lane sold their property (less 70 acres), along with Spring Creek Ranch’s vested and decreed water rights, to developer buddies Kevin M. Smith and Donald F. Moorehead Jr., (Elk Dance). The adjacent ranch then became the Shadow Creek Ranch subdivision, and 22 - 70 acre lots were planned to sell for five to seven million dollars each. The Lanes subsequently merged their 70 acres into the Shadow Creek Ranch Subdivision.
After refusing several more Addendums proffered now by Elk Dance and the new Board of Directors, an attorney was hired and a lawsuit (Case No. 99CV277), was filed against me in October 1999 by Directors Swenson, Lindley and Beattie acting through the new Association.
Attorney Victor F. Boog, filed a Complaint for Declaratory Judgment asking the Court to find that the new Board of Directors were duly elected, and that they were vested with the powers to conduct, manage and control the affairs of the Association per the Nonprofit Corporation Act, the original Articles of Incorporation, and their newly adopted By-Laws.
Beginning in1998, the new Board of Directors steadily began to contract and accumulate bills. They then assessed all Homeowners for these bills, as well as, authorized assessments upon Homeowners to pay for their attorney, Victor Boog’s fees. I refused to pay.
The new Board of Directors then declared per their Bylaws, that only those Homeowners that paid their assessments had voting rights in the new Association. The three Directors and two other Homeowners, thereupon adopted the Colorado Common Interest Ownership Act, (CCIOA), on November 7, 2001. The CCIOA Act provides for foreclosure on assessments which are turned into liens against properties.
Trial was held for Case No. 99 CV 277 on November 27, 28, and 29, 2001.
On January 28, 2002, Judge David R. Lass of the Summit County District Court rendered his decision in a Findings of Fact, Conclusions of Law, and Judgment. Judge Lass found that:
1. The new Association, the newly elected Board of Directors, and their Bylaws were valid.
2. Found that they were vested with the power to conduct, manage and control the affairs of the Association, by a majority vote.
3. Found that members of the Homeowners Association were bound by the actions of the new Board of Directors.
3. Found ownership of Spring Creek Ranch’s vested and decreed water rights in Elk Dance and Shadow Creek Ranch.
4. Found that Homeowners original Covenants were invalid.
5. Ordered that I sign the Addendum to the 1989 Agreements, and if required by the Water Court, sign any other documents necessary to accomplish the purposes of the Addendum. And,
6. Ordered that I sign any and all petitions, affidavits, applications, plats, or other materials required in connection with the rezoning and resubdivision of Spring Creek Ranch.
On February 7, 2002, Bob Swenson sent a 2000 Addendum to the 1989 Agreement and stated that pursuant to the 2002 Judgment, I must sign it within 10 days. I refused, and on March 4, 2002 Judge David R. Lass Ordered the Court Clerk to sign the 2000 Addendum for me.
On October 7, 2002, stating that Covenants were necessary to re-subdivide the 300 community property. Bob Swenson presented me with new Covenants to sign. He again cited the 2002 Judgment and stated that I must sign within 10 days. I refused. On January 23, 2003, Judge David R. Lass Ordered the Court Clerk to sign the new Covenants for me.
On April 22, 2003, per the new Association’s re-subdivision of the 300 acres, I received a Quit Claim Deed which deeded to me, approximately 45 acres adjoining my home and 5 acre lot. In addition to the Quit Claim Deed, Bob Swenson gave his attorney Victor Boog a promissory note for payment of his fees and secured it with a Deed of Trust against the 45 acres. Victor Boog foreclosed, Judge Lass authorized the sale, and my property at the time worth three million dollars, sold on April 16, 2004, for $7,325.00 to Board of Director ¹Bruce Anderson. As of September 2007, the Board of Directors through the new Association, has filed $191,024.98 in new liens against my home and five acres. Most of these liens are for their attorney Victor Boog’s fees.
¹In April 2002, the Beatties sold to Bruce and Judith Anderson. Bruce Anderson was then appointed a Director. In August 2002, Lisa Lindley sold to her mother Astrid Gifford who shortly after sold to Judith Anderson. Judith Anderson was then appointed a Director. In 2003, the Directors were Bob Swenson and Bruce and Judith Anderson.
THE LAW
Judges are mandated to apply the law according to the facts. C.R.C.P. Rule 52 "In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon."
A. In the trial held in 2001, I testified to, and submitted the 1989 Agreements which made the Homeowners and our Association, joint owners of the vested and decreed common properties and water rights for Spring Creek Ranch. I also testified to, and submitted numerous written documents evidencing Homeowners agreement to conduct, manage and control the affairs of our Association per unanimous consent, for eight and a half years, (1989 - 1997). Our agreement to carry out the affairs of our Association per unanimous consent, was a contract.
Blacks Law Dictionary defines contracts as, " an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law."
Our eight and a half year history, is recognized at law: C.R.S. 4-1-205(3) A Course of Dealing. A course of dealing between parties and any usage of trade (business), in the vocation or (business) in which they are engaged . . . give particular meaning to and supplement or qualify terms of an agreement.
The 2002 Judgment evidences, that by finding the new Association valid, Judge Lass deliberately ignored most of my testimony and documentation regarding the requirement of unanimous consent, and what wasn’t ignored, was deliberately misstated so as too falsely say that Homeowners "intended" to conduct themselves per unanimous approval. He wrote, "Indeed a proposed resolution dated November 4, 1994 which would have required unanimous votes was, according to Lewis’ own testimony, defeated." "The current membership therefore is not bound by any previous informal agreement."
In the transcript at Volume 2, page 17, lines 15-20, I testified and quoted from the Resolution which clearly petitioned Homeowners to "eliminate the current requirement for a unanimous vote." The record testifies that Judge Lass deliberately misstated this fact for three reasons;
1. A party must have standing in order to bring a lawsuit. "Standing- A party’s right to make a legal claim or seek judicial enforcement of a duty or right." Black’s Law Dictionary, 8th Edition.
Because our agreement to conduct business per unanimous consent was a contract, and recognizable at law, the formation of the new Association, the election of Directors and adoption of new By-Laws was a breach of that contract. Their actions could not be upheld or recognized at law, and therefore, they did not have a legal standing to bring suit.
Failing to obtain unanimous consent, the four Homeowners then invoked provisions of the Colorado Nonprofit Corporation Act as their authority to meet, elect new directors, and adopt new By-Laws. But here again, the power to invoke the law comes through a right to do so. By lacking the consent of all, they did not have that right, and therefore did not have a legal standing to bring suit under the Nonprofit Corporation Act either.
Furthermore, by deliberately misstating that there was not a unanimous consent requirement, Judge Lass hid the breach of contract and thereby could find the formation, election and adoption as valid thus giving a legal standing to the new Association and Directors in court. So, the first reason why Judge Lass deliberately misstated the facts, was to unlawfully give the Plaintiff’s standing to sue.
2. 20 Am Jur, 2d Courts §71 (2005). "In order to act in a case, a court must be vested with both jurisdiction over the subject matter and jurisdiction over the parties."
The second reason was jurisdiction. Without a legal standing, the court lacks jurisdiction. By giving the Plaintiff’s standing to sue, the court (Judge Lass), unlawfully obtained jurisdiction and power to act.
3. The third purpose, was to unlawfully give the Board of Directors acting through the new Association, the right to enter into the Addendum to the 1989 Agreements, as well as to later give them standing in Water Court to have it enforced.
B. Judge Lass deliberately misapplied the laws in finding that the formation of the new Association, election of Directors, and adoption of new Bylaws complied with " the general principles of corporate and Colorado law." He wrote, " . . . the Court notes that fundamental principles of corporate law generally provides that a majority of shareholders constitutes a quorum, that regular meetings of boards of directors may be conducted without notice, that a majority of the board of directors constitutes a quorum, and that the action of a majority of such a quorum constitutes the action of the board of directors."
The Articles of Incorporation established our Association as a nonprofit "member" association, and membership in the Association is through home ownership. It does not provide for shareholders and is a nonstock corporation. Therefore, our Association is not subject to the Colorado Corporate Code, but rather to the Uniform Unincorporated Nonprofit Association Act. This Act is consistent with the organic purpose of the Articles of Incorporation, our 1989 agreement of unanimous consent, and that the management and control of the Association is vested in the members, not the Board of Directors. Under the Uniform Unincorporated Nonprofit Association Act, it is impossible and illegal for the members to be bound by the Board of Directors actions, meetings, elections, and adoptions, as Judge Lass ruled;
18 C.J.S. Corporations §8 (2007) "Corporations are divided into stock corporations and nonstock or membership corporations."
"Nonstock corporation - A corporation that does not issue shares of stock as evidence of ownership but instead is owned by its members in accordance with a charter or agreement." Black’s Law Dictionary 8th Edition.
C.R.S. 7-90-102(18)- "Domestic nonprofit association" means a nonprofit association as defined in the "Uniform Unincorporated Nonprofit Association Act," article 30 of this title.
C.R.S. 7-30-101(1), "Member" means a person who, under the rules or practices of a nonprofit association, may participate in the selection of persons authorized to manage the affairs of the nonprofit association or in the development of policy of the nonprofit association or who is considered to be a member by such person and the nonprofit association.
By deliberately misapplying the law, Judge Lass fraudulently empowered the new Association and Directors - contrary to the legally protected governance, i.e., the Articles of Incorporation - to violate the legal rights of the Spring Creek Ranchers Association, Inc., and divested members of our right to manage the affairs of our Association as joint owners.
C. Our original Covenants were declared invalid in the 2002 Judgment, because the Directors elected to adopt the Colorado Common Interest Ownership Act in 2001. In order for the adoption to be binding on the properties, and thereby to foreclose on liens, the CCIOA Act requires that Covenants are consistent with the Act. So, when Judge Lass Ordered my signature to the new Covenants, he did so to unlawfully validate the past actions of the Directors, (the adoption of CCIOA, the filing of liens, and the selling of my property to pay Victor Boog’s Bills.), and to empower them for future ones, (the filing of new liens and selling my home.) The CCIOA Act also violates the legally protected governance (the Articles of Incorporation), the rights of the Spring Creek Ranchers Association, Inc., and member rights as joint owners.
D. When Judge Lass Ordered that I sign the new Covenants, the Addendum to the 1989 Agreement, and any and all petitions, affidavits, applications, plats, etc., he abused his authority and violated contract law as well as the Uniform Declaratory Judgment Act, and the Articles of Incorporation for Spring Creek Ranch.
1. The By-Laws, Covenants, CCIOA, the Addendum, and including the petitions, affidavits, etc., within the context of Judge Lass’s Judgment, are all contracts. The law mandates that for a contract to be legal and binding, there must be a voluntary mutual consent between the parties.
Freedom of Contract Doctrine- The doctrine that people have the right to bind themselves legally; a judicial concept that contracts are based on mutual agreement and free choice, and thus should not be hampered by external control such as governmental interference. Black’s Law Dictionary, 8th Edition.
2. The lawsuit was brought under the Uniform Declaratory Judgment Act. A Declaratory Judgment is based on the facts, and is no more than a " judicial opinion" regarding the rights, status, or other legal relations of the parties in a dispute. A declaratory judgment does not provide for enforcement of the judgment.
C.R.S. 13-51-105 and C.R.C.P. Rule 57(a). Power and force of declaration. Courts of record within their respective jurisdictions have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.
Declaratory Judgment- A binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement. Blacks Law Dictionary, 8th Edition.
Judge Lass’s Order’s that I sign binding agreements against my will and against the law, as well as declaring that I am bound by the actions of the Directors is an abuse of authority and violates Contract Law, Doctrine, the Uniform Declaratory Act, and my 1st, 9th, and 14th Amendment rights.
E. Judge Lass found title of Spring Creek Ranch’s water in Shadow Creek. Title to water rights is tried by a quiet title action. Neither I nor anyone from Elk Dance filed such an action with the Court, and Judge Lass therefore, was without jurisdiction to adjudicate any aspect of the water rights. The facts testify that Judge Lass unlawfully declared ownership of the water rights in Elk Dance and Shadow Creek Ranch:
1. To effectuate and validate the Addendum to the 1989 Agreements,
2. To legalize the Lanes sale of Spring Creek Ranch’s water rights in 1999,
3. To legalize the 1999 and 2000 Water Court’s issuance of two well permits to Shadow Creek on Spring Creek’s water rights.
4. To legalize Summit County Commissioners approval for development of Shadow Creek Ranch based on Spring Creek’s water rights and,
5. By the time the 2002 Judgment was rendered, Elk Dance reported that they had sold two lots at five million dollars each. End.
The above is a testament to the lack of leadership and integrity of Chief Justice Mary Mullarkey. Not only does she have the duty and responsibility of overseeing the judges, the Colorado Supreme Court is a Court of last resort. The above corruption and violations of law, rules, and ethics should have been stopped at the Supreme Court, it was not. If the highest court has no accountability, how can there be any at the lower courts?
For further questions or information, I can be reached at Halen@axint.net or messages at 303 433-3573. I will return every call. Thanks, Halena Lewis
Join me at http://www.progressnowaction.org/page/group/OPENCOURT to support a call for accountability in our Judiciary and legal system.
