Petition for Writ of Certiorari — Burcher v. Quincy Hill Townhouse Ass'n

Court, U.S.

() FILED

\

Ql 926 DEC 202001

ste OFFIGE OF THE CLERK

In the

Supreme Court of the Hunited States

GREGORY BURCHER,

Petitioner,

QUINCY HILL TOWNHOUSE ASSOCIATION

and JUDY LOTT,

Respondents.

PETITION FOR A Writ OF CERTIORARI TO

THE Unrrep StaTes Court OF APPEALS

” FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DaNniEL J. SCHENDZIELOS

Counsel of Record

1602 S. Parker Rd.

Suite 203

Denver, Colorado 80231

(303) 750-3015

Attorney for Petitioner

ita

I. THE PETITIONER'S EVIDENCE WAS SUFFICIENT

TO OVERCOME THE STANDARD FOR A MOTION FOR

SUMMARY JUDGMENT BECAUSE THE DIRECT EVIDENCE

PRESENTED A COGNIZABLE CLAIM BASED ON THE

ISSUE OF PRIVATIZATION OF LOCAL GOVERNMENT

RAISED BY THE ASSERTION THAT A_ PRIVATE

HOMEOWNER'S ASSOCIATION ACTS AS _ THE

FUNCTIONAL EQUIVALENT OF A GOVERNMENTAL

MUNICIPALITY WHEN IT EXERCIZES GENERAL POWERS

OVER ITS MEMBERS TO THE SAME DEGREE AS WOULD

SUBJECT A STATE ACTOR TO THE FEDERAL REMEDIES

AVAILABLE FOR INVIDIOUS CONDUCT UNDER COLOR OF

LAW, THUS VACATING THE PETITIONER'S

CONSTITUTIONAL RIGHT TO A JURY TRIAL WAS ERROR.

i

QUESTIONS PRESENTED

I. IN LIGHT OF THE STATE OF THE LAW

CONCERNING PRIVATIZATION OF LOCAL

GOVERNMENT/STATE ACTION THE DISTRICT COURT

IMPROPERLY ASSESSED ATTORNEY FEES AGAINST THE

PLAINTIFF CHILLING FUTURE LITIGANTS' ACCESS TO

THE COURTS.

Il. A STATE STATUE CANNOT BE APPLIED BY THE

COURT TO SUPPORT AN AWARD OF ATTORNEY FEES

AGAINST THE PETITIONER.

ii

" ‘TABLE OF CONTENTS

carte eee a, | MAN LESLIE cae TIE 1

ERE SEITE BRUNT er eee oe li

TABLE OF cee pe gE EA RRO TNT ll

nt pe aan ipa RT TT ERR ES 1

STATEMENT OF BASIS FOR JURISDICTION OF THE SUPREME

SIMI Sisinsiactioriitepeesianseeninmnnstcntiocnin bcs ee 1

CONSTITUTIONAL AND Geren AND ORDINANCE PROVISIONS

I cists ina iiescshoebebntoieiads icine te ea Oe 2 1

STATEMENT OF THE Die ovvsiecstanissionunigmiicciidneati 7

REASONS FOR GRANTING RU ERIE ET ON ORIEN SS 9

ek TOON OAL ER I 20

APPENDIX

CIRCUIT COURT OPINION (09/24/2001) ...cccscccccssssssoscecosese. la

DISTRICT COURT OPINION (02/1 eR iheiinnsiibs isis 5a

ii

TABLE OF AUTHORITIES

CASES

ADICKES V. S.H. KRESS & Co., 398 U.S, 144, 90 S.CT. 1598, 26

oo raceepamanenrnentags 11, 14, 18

BEHAGEN V. AMATEUR BASKETBALL ASSOCIATION OF THE

UNITED STATES, 884 F._D 524, 520 (10TH Cir. 1989)............. 15

BERG V. JACK SHAPIRO, 00CA0002, SLIP AT PAGE 7 (COLO.APP.

I ssudeeiabeiomennielonentegnbes 20

BROWNS V. MITCHELL, 409 F.2D.593, 596 (10TH Cir. 1969).......16

- BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715, 81

S.CT. 856, 6 LED2D 45 (1961) vsesssssssssescsessesessseseseseen 12, 14, 18

COHEN V. KITE HILL COMMUNITY ASSOCIATION, 191 CAL. RPTR.

Nee eeeeemenn 16

EVANS V. NEWTON, 382 U.S. 296, 299(1966) ......cccssssssssssssssssssee 15

FLAGG BROTHERS V. BROOKS, 436 U.S. 149, 98 S.CT. 1729, 56

SLEPT LE 12

GALLAGHER V. NEIL YOUNG FREEDOM CONCERT, 49 F.3D 1442

SELES Ne ce ean eee 14, 17

GILMORE V. SALT LAKE COMMUNITY ACTION PROGRAM, 710 F.2D

632, 635 36 (OTH CIR. 1983)...cccsssssssssssssssssccceccecceccecsesee 12, 16

INTERNATIONAL SOC'Y FOR KRISHNA CONSCIOUSNESS, INC. V. AIR

CANADA, 727 F.2D 253, 255 (2D CIR. 1984) ...ssssssssssseeseeee 13, 18

JACKSON V. METROPOLITAN EDISON CO., 419 U.S. 345, 95 S.CT.

4A9, 42 L.ED.2D 477 (1974) .osessecesscssesesssescsssessseessessesessee PASSIM

JAFFE V. CITY & COUNTY OF DENVER, 15 P.3D 806 (COLO. APP.

os fe 19

LUGAR V. EDMONDSON OIL Co., 457 U.S. 922, 102 S.CT. 2744, 73

i csiempinseivi 12, 13, 19

MARSH V. ALABAMA, 326 U.S. 501, 66 S.CT. 276, 90 L.ED. 265

MONDRAGON V. TENORIO, 554 F.2D 423, 425 (1OTH Cir. 1977).16

MOOSE LODGE NO. 107 V. IRvIS, 407 U.S. 163, 175 (1972)..14, 18

NATIONAL COLLEGIATE ATHLETIC ASS'N V. TARKANIAN, 488 U.S.

I ITE Poviownctiehissinteenyoenentnisnvetansntononetienmsonoeneedoneteceveqsoeee 13

PHELPHS V. WICHITA EAGLE BEACON, 886 F.2D 1262, 1271 N. 9

Sy REET? ccnsnersinesentinectonemnscuveouninpentovenossscoovecsoneversesesoes 15

PLEASANT V. LOVELL, 876 F.2D 787, 796 (10TH CIR. 1989)........ 12

- jv

PUEBLO OF SANTA ANA V. MOUNTAIN STATES TELEPHONE AND

TELEGRAPH CO., 734 F.2D 1402, 1407.......cccccscssssssesssesessseeens 17

SCHAEFER V. WILCOCK, 676 F. SUPP. 1092, 1109-10 (D. UTAH

BIE ceniotrsisererreteusendslensiaenntnnsintanaineienniettienengimennneiniens 16

SHELLY V. KRAEMER, 334, U.S. 1, 13 (1948)..........cccccccsssssseseseees 12

STATE V. GOLDEN'S CONCRETE CO., 962 P.2D 919 (COLO. 1998)

oveueseneudentantnecegneccstsnenereqegnengnncsinagaenseenineneensenmecsneensseeratneneeesnenceiiee 20

TERRY V. ADAMS, 345 U.S. 461, 73 S.CT. 809, 97 L.ED. 1152

ris etacesseenensasinivinnsmciiinnitasaninimmiinnitiniiinnmniiaaeientvenieen 11, 15

UNITED STATES V. JACOBSEN, 466 U.S. 109, 113 (1984)........... 12

UNITED STATES V. PRICE, 383 U.S. 787, 794 (1996)............ 14, 18

VE-RI-TAS, INC. V. ADVERTISING REVIEW COUNCIL OF

METROPOLITAN DENVER INC., 567 F.2D 963, 965 (10TH CiR.

STE Aiiniscictsceshsssesaiaicenhn ineaieienseietehentaindeheehinahdaipindanidaniiapeanineten 16

STATUTES

Ba III vineisiccsnsscssseesnabieitinchigteinidininnedaascinianiunsiladiioeiaiiahistiead 7

Re a iiahsesncsnssiusienilinndiienibinanicieniiiintuncsusin 7, 9, 11, 12, 19

Se I iicscineseniiininiiitinntlipiniinaianibesnivacitaiibinntiaciaicsiiiibiaati 19

CHARLES L. BLACK, JR., THE SUPREME COURT, 1966.... 13, 18

COLORADO REVISED STATUTES §13-17-201 ........ccsscsssscssseeseeesees 19

Se eR eee

]

OPINIONS BELOW

The decision of the United States Court of Appeals for

the Tenth Circuit dated September 24, 2001, is set forth in the

Appendix, p. la. The opinion of the United States District

Court for the District of Colorado dated February 11, 2000,

and Judgment dated February 11, 2000 is set forth in the

Appendix, pp. 5a, 14a.

STATEMENT OF THE BASIS OF JURISDICTION

OF THE SUPREME COURT

The statutory provision for this Court's jurisdiction is

28 U.S.C. Section 1254. The United States Court of Appeals

for the Tenth Circuit issued its Decision in this case on

September 24, 2001. This Petition was timely filed.

CONSTITUTIONAL, STATUTORY AND ORDINANCE

PROVISIONS INVOLVED IN THIS CASE

Constitutional Issues

1. Seventh Amendment of the United States Constitution

In suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and not fact tried by a jury, shall be

otherwise reexamined in any Court of the United States, than

according to the rules of common law.

2. Fourteenth Amendment, United States Constitution

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law, which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

Statutory Issues

Colorado Revised Statutes 38-33.3-302;316.

2

C.R.S. §38-33.3-302. Powers of unit owners'

association. (1) Except as provided in subsection (2) of this

section, and subject to the provisions of the declaration, the

association, without specific authorization in the declaration,

may:

(a) Adopt and amend bylaws and rules and

regulations;

(b) Adopt and amend budgets for revenues,

expenditures, and reserves and collect assessments for

common expenses from unit owners;

(c) Hire and terminate managing agents and other

employees, agents, and independent contractors;

(d) Institute, defend, or intervene in litigation or

administrative proceedings in its own name on behalf of itself

or two or more unit owners on matters affecting the common

interest community;

(e) Make contracts and incur liabilities;

(f) Regulate the use, maintenance, repair,

replacement, and modification of common elements;

(g) Cause additional improvements to be made as a

part of the common elements;

(h) Acquire, hold, encumber, and convey in its own

name any right, title, or interest to real or personal property,

subject to the following exceptions:

(Tl) Common elements in a condominium or planned

' community may be conveyed or subjected to a security

interest only pursuant to section 38-33.3-312; and

(II) Part of a cooperative may be conveyed, or all or

pert of a cooperative snag be matjected to & security interest,

only pursuant to section 38-33.3-312;

(i) Grant easements, leases, licenses, and

concessions through or over the common elements;

(j) Impose and receive any payments, fees, or charges

for the use, rental, or operation of the common elements

3

other than limited common elements described in section 38-

33.3-202 (1) (b) and (1) (d);

(k) Impose charges for late payment of assessments,

recover reasonable attorney fees and other legal costs for

collection of assessments and other actions to enforce the

power of the association, regardless of whether or not suit

was initiated, and, after notice and an opportunity to be

heard, levy reasonable fines for violations of the declaration,

bylaws, and rules and regulations of the association;

(1) Impose reasonable charges for the preparation

and recordation of amendments to the declaration or

statements of unpaid assessments;

(m) Provide for the indemnification of its officers and

executive board and maintain directors’ and officers’ liability

insurance;

(n) Assign its right to future income, including the

right to receive common expense assessments, but only to

the extent the declaration expressly so provides;

(0) Exercise any other powers conferred by the

declaration or bylaws;

(p) Exercise all other powers that may be exercised

in this state by legal entities of the same type as the

association; and

(q) Exercise any other powers necessary and proper

for the governance and operation of the association.

(2) The declaration may not impose limitations on the power

of the association to deal with the declarant that are more

restrictive than the limitations imposed on the power of the

association to deal with other persons.

C.R.S. §38-33.3-316. Lien for assessments. (1) The

association, if such association is incorporated or organized

as a limited liability company, has a statutory lien on a unit

for any assessment levied against that unit or fines imposed

against its unit owner. Unless the declaration otherwise

provides, fees, charges, late charges, attorney fees, fines, and

interest charged pursuant to section 38-33.3-302 (1) G@), (1)

4

(k), and (1) (2), section 38-33.3-313 (6), and section 38-33.3-

315 (2) are enforceable as assessments under this article.

The amount of the lien shall include all those items set forth

in this section from the time such items become due. If an

assessment is payable in installments, each installment is a

lien from the time it becomes due, including the due date set

by any valid association's acceleration of installment

obligations.

(2) (a) A lien under this section is prior to all other

liens and encumbrances on a unit except:

(IT) Liens and encumbrances recorded before the

recordation of the declaration and, in a cooperative, liens and

encumbrances which the association creates, assumes, or

takes subject to;

(II) A security interest on the unit which has priority

over all other security interests on the unit and which was

recorded before the date on which the assessment sought to

be enforced became delinquent, or, in a cooperative, a

security interest encumbering only the unit owner's interest

which has priority over all other security interests on the unit

and which was perfected before the date on which the

assessment sought to be enforced became delinquent; and

(Itt Liens for real estate taxes and other

governmental assessments or charges against the unit or

cooperative.

(b) Subject to paragraph (d) of this subsection (2), a

lien under this section is also prior to the security interests

described in subparagraph (II) of paragraph (a) of this

subsection (2) to the extent of:

() An amount equal to the common expense

assessments based on a periodic budget adopted by the |

association under section 38-33.3-315 (1) which would have

become due, in the absence of any acceleration, during the

six months immediately preceding institution by either the

association or any party holding a lien senior to any part of

the association lien created under this section of an action or

a nonjudicial foreclosure either to enforce or to extinguish

the lien.

5

(11) (Deleted by amendment, L. 93, p. 653, § 21,

effective April 30, 1993.)

(c) This subsection (2) does not affect the priority of

mechanics' or materialmen's liens or the priority of liens for

other assessments made by the association. A lien under this

section is not subject to the provisions of part 2 of article 41

of this title or to the provisions of section 15-11-201, C.R.S.

(d) The association shall have the statutory lien

described in subsection (1) of this section for any assessment

levied or fine imposed after June 30, 1992. Such lien shall

have the priority described in this subsection (2) if the other

lien or encumbrance is created after June 30, 1992.

(3) Unless the declaration otherwise provides, if two

or more associations have liens for assessments created at

any time on the same property, those liens have equal

priority.

(4) Recording of the declaration constitutes record

notice and perfection of the lien. No further recordation of

any claim of lien for assessments is required.

(5) A lien for unpaid assessments is extinguished

unless proceedings to enforce the lien are instituted within

six years after the full amount of assessments become due.

(6) This section does not prohibit actions or suits to

recover sums for which subsection (1) of this section creates

a lien or to prohibit an association from taking a deed in lieu

of foreclosure.

(7) The association shall be entitled to costs and

reasonable attorney fees incurred by the association in a

judgment or decree in any action or suit brought by the

association under this section.

(8) The association shall furnish to a unit owner or

such unit owner's designee or to a holder of a security

interest or its designee upon written request, delivered

personally or by certified mail, first-class postage prepaid,

return receipt, to the association's registered agent, a written

statement setting forth the amount of unpaid assessments

currently levied against such owner's unit. The statement

6

shall be furnished within fourteen calendar days after receipt

of the request and is binding on the association, the executive

board, and every unit owner. If no statement is furnished to

the unit owner or holder of a security interest or his or her

designee, delivered personally or by certified mail, first-class

postage prepaid, return receipt requested, to the inquiring

party, then the association shall have no right to assert a lien

upon the unit for unpaid assessments which were due as of

the date of the request.

(9) In any action by an association to collect

assessments or to foreclose a lien for unpaid assessments,

the court may appoint a receiver of the unit owner to collect

all sums alleged to be due from the unit owner prior to or

during the pending of the action. The court may order the

receiver to pay any sums held by the receiver to the

association during the pending of the action to the extent of

the association's common expense assessments.

(10) In a cooperative, upon nonpayment of an

assessment on a unit, the unit owner may be evicted in the

same manner as provided by law in the case of an unlawful

holdover by a commercial tenant, and the lien may be

foreclosed as provided by this section.

(11) The association's lien may be foreclosed by any

of the following means:

(a) In a condominium or planned community, the

association's lien may be foreclosed in like manner as a

mortgage on real estate.

(b) In a cooperative whose unit owners' interests in

the units are real estate as determined in accordance with the

provisions of section 38-33.3-105, the association's lien must

be foreclosed in like manner as a mortgage on real estate.

(c) In a cooperative whose unit owners' interests in

the units are personal property, as determined in accordance

with the provisions of section 38-33.3-105, the association's

lien must be foreclosed as a security interest under the

"Uniform Commercial Code", title 4, C.R.S.

iain

7

STATEMENT OF THE CASE

This is an action pursuant to 42 USC §1983 for

damages resulting from the action of a homeowner's

association in the taking of property. Associated with the

§1983 claims, Petitioner also pleaded FAIR DEBT

COLLECTION PRACTICES ACT claims and state law claims

related to the actions of the association. During the litigation,

the FAIR DEBT COLLECTION PRACTICE J ACT claims were

settled as to some defendants and withdrawn as to others.

The trial court granted Defendants summary judgment on the

issue of state action and awarded attorney fees against the

Petitioner in an amount of $54,066.71.

Procedural History

Petitioner's Amended Complaint brought claims

under 42 U.S.C. §1983 and 15 U.S.C. §1692k. Certain of the

claims under 15 U.S.C. § 1692k were settled by payment to

Petitioner, certain claims under 15 U.S.C. § 1692k were

dismissed and the district court dismissed the claims under

42 U.S.C. §1983, finding that QHTA could not act under color

of law for the purpose of 42 U.S.C. §1983. The judgment of

dismissal entered on February 11, 2000. A timely appeal was

lodged in the United States Court-of Appeals for the Tenth

Circuit on March 3, 2000, and an amended notice of appeal

was filed on October 16, 2000 relating to the attorney fees

issue. Thereafter the two issues were consolidated. No oral

argument was held. A Panel of the Tenth Circuit issued is

Order and Judgment on September 24, 2001

Statement of the Facts

Petitioner has been a resident and property owner in

the Quincy Hill Townhouse Association ("QHTA")

development or community since approximately May 1989.

During the period of his residence and ownership, Petitioner

had disagreements with other members of QHTA over certain

aspects of their individual behavior, the management of the

common areas and the direction and conduct of the Board of

Directors. These disputes included: the failure of QHTA to

8

properly maintain the common areas; A QHTA lawsuit against

Petitioner in 1996 to harass or coerce him to move out of the

QHTA community; QHTA's destruction or takings of

Petitioner's landscape improvements and the financial mis-

management of QHTA.

Unfortunately (and unfairly) for Petitioner, the QHTA

and its BOD undertook a policy of discriminating against

Petitioner or treating his ownership of property in the

association in an arbitrary and capricious manner. This

includes 1) the acts of the Board in rejecting Petitioner's

improvements, 2) tearing out the improvements which was,

upon information and belief, retaliatory and a continuation of

the harassment identified in the preceding paragraphs.

Despite a reasonable request for the replacement or payment

for the improvements Petitioner made, the Board has refused

to either replace or pay for the improvements.

On or about January or February of 1996 QTHA,

through three of its individual members, commenced a

lawsuit against Petitioner in Arapahoe county court in

Colorado. QTHA had previously filed a lien against

Petitioner's property pursuant to C.R.S. §38-33.3-101, et seq.

for amounts it claimed were due. Fon ee neenee oe

lawsuit was to collect this amount.

In fact, the association commenced the lawsuit

against Petitioner in part to harass him and engage him in a

protracted and extended legal proceeding in an attempt to get

him to move out of the association. The litigation was very

expensive for a county court collection matter resulting in a

claim for attorney fees and costs by the association well in

excess of reasonable amounts.

The refusal of QHTA to allow Petitioner to maintain

the property immediately adjacent to his unit in the common

area was violative of Petitioner's right to equal protection of

QHTA's regulations or laws in that other QHTA members

similarly situated were granted permission by QHTA to.

initiate or maintain similar landscape projects on the

common areas. By ignoring Petitioner's request for a

variance to install improvements and maintain the common

area immediately adjacent to his property QHTA acted in

9

violation of its fiduciary duties toward Petitioner in particular

and the association in general, QHTA failed to provide any

legitimate reason or promote any legitimate QHTA objective

for the unequal or differential treatment accorded to

Petitioner. Rather, QHTA's treatment of Petitioner was to

retaliate against him due to his unpopularity with past QHTA

members, current QHTA members or their friends. Such

retaliatory treatment amounts to invidious selective

enforcement of QHTA's covenants and by-laws against

Petitioner.

QHTA's actions described herein, within the nexis of a

state actor governmental municipality, violated Petitioner's

Fourteenth Amendment right to equal protection of the law

and his Fifth Amendment right against the taking of property

without due process of law, and thus he had a cognizable

claim for relief under 42 USC §1983. Due to the unequal

treatment at the hands of QHTA, Petitioner has suffered

actual damages in the form of the loss of property and

emotional distress. Due to its failure to provide Petitioner

notice of the Board meetings and the invidious,

discriminatory manner in which the Board "processed"

Petitioner's common area landscape issue, or in the

alternative its failure to review his petition for a common

area variance, QHTA denied Petitioner his constitutional right

to a fair hearing.

REASONS FOR GRANTING THE WRIT

I THE PETITIONER SUBMITTED SUFFICIENT

EVIDENCE TO OVERCOME THE STANDARD FOR A

MOTION FOR SUMMARY JUDGMENT BY HIS

INSERTION OF DIRECT EVIDENCE TO OVERCOME A

DISMISSAL ON THE ISSUE OF COGNIZABILITY, THUS

VACATING THE PETITIONER'S CONSTITUTIONAL

RIGHT TO A JURY TRIAL WAS INVIDIOUS AND

REPUGNANT TO PETITIONER'S SEVENTH AND

FOURTEENTH AMENDMENTS RIGHTS.

The District Court's entry of dismissal or summary

judgment deprived the Petitioner of his right to a jury trial.

10

Moreover, it should be the role of the jury to determine

whether the evidence proved the causes of action. The

District Court's and Circuit Court's exercise of judicial

discretion, in refusing to hear issues dealing with discovery

violations, and the invidious nature of the state's common

ownership interest statute, is in direct conflict with

Petitioner's right to a trial by jury and due process on these

issues. Moreover, the bigger impact is the explosive growth of

privatization of local government issues through state

enforcement of the Constitutionally repugnant takings

through Colorado legislative statutes by "privateers."

Dismissal with prejudice of a party's complaint is a

harsh sanction to be resorted to only in extreme cases, and is

within the court's sound discretion; court must give full

regard for severity of the sanction, granting dismissal

sparingly and only when less drastic alternatives have been

explored.

A complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief. Conley v. Gibson, 355 U.S. 41, 2 L.Ed.2d

80, 78 S.Ct. 99 (1957); Melo-Sonic Corporation v. Crop, 342

F.2d 856 (3d Cir. 1965). A summary judgment motion is

appropriate when there is no genuine issue of material fact.

Anderson v. einniadlarisscintan 477 U.S. 242, 252, 106 S.Ct.

2505 (1986)

A dispute is "genuine" if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party. Id. A fact is “material" if a dispute over it might affect

American Oil Co., 295 F.Supp.573 (1968). Courts may not

dismiss complaint for insuffciency unless it clearly appears

of the imagination is plaintiff entitled to

11

any relief for claims asserted in his complaint Kozlowski v.

Ferrarra, 117 F.Supp. 650 (1954).

Even if it is doubtful that plaintiff would ultimately

prevail, if plaintiff colorable states facts which, if proven,

would entitled him relief, motion to dismiss for failure to

state a claim should not be granted Kronmuller v. West End

Fire Co.. No. 3 Fire Dept., 123 173rd 170 (1988). The

Petitioner's case should have never been disposed of upon a

summary judgment motion. The lower courts' actions were

such an abuse of discretion, because the Petitioner by way of

depositions, affidavits and other competent evidence showed

a substantial amount of evidence to prove his claim. The

Petitioner's claims have merit since they were plead with

particularity.

The jury trial is a fundamental right and an essential

element of self government which the drafters of the Bill of

Rights sought to preserve. To safeguard that right the Seventh

Amendment prohibits federal courts from taking away the

role of the jury.

The QHTA homeowner's association is the functional

equivalent of a municipality with general governmental

powers over its members such as to act under color of law.

The district court found that QHTA was not subject to

regulation under 42 U.S.C. §1983 because it was not a "state

actor" acting “under color of law." However, as detailed in the

amended complaint, QHTA was involved in the traditional

governmental functions of administering a locai residential

community. The importance of accurately characterizing and

weighing the private conduct at issue is explained by the

Tenth Circuit: The Supreme Court has approached the

concept of governmental action flexibly. It has pragmatically

examined ostensibly private activities to determine if they

constitute governmental action. In this regard, the Court has

inquired whether a private party is performing a "public

function," see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97

L.Ed. 1152 (1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct.

276, 90 L.Ed. 265 (1946), or acting under "state compulsion,"

see Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26

L.Ed.2d 142 (1970), whether there is a "nexus," see Jackson v.

12

Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42

L.Ed.2d 477 (1974); Burton v. Wilmington Parking Authority,

365 U.S, 715, 81 S.Ct. 856, 6 L.Ed2d 45 (1961), or "joint action"

between the private party and the government, Lugar v.

Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d

482 (1982); Flagg Brothers v. Brooks, 436 U.S. 149, 98 S.Ct.

1729, 56 L.Ed.2d 185 (1978). These cases, taken together,

impart at least two important principles. First, they recognize

that power entrusted to the government by the people can

ultimately be exercised through nominally private entities, be

it through the government's delegation, compulsion,

concerted action, or acquiescence. Second, they provide that

when these nominally private parties exercise governmental

power, they shall not exercise it insulated from constitutional

constraints. The problem remains in distinguishing the

exercise of governmental power from benign or tangential

involvement. This problem is resolved by "sifting facts and

weighing circumstances" in each case. Burton v. Wilmington

Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6

L.Ed.2d 45 (1961). (emphasis provided). Gilmore v. Salt Lake

Community Action Program, 710 F.2d 632, 635 36 (10th Cir.

1983).

The tests to be applied are complex: The Fourteenth

Amendment to the United States Constitution provides in

part: "No State shall . . . deprive any person of life, liberty, or

property, without due process of law." That language

establishes an “essential dichotomy" between governmental

action, which is subject to scrutiny under the Fourteenth

Amendment, and private conduct, which “however

discriminatory or wrongful," is not subject to the Fourteenth

Amendment's prohibitions. Jackson v. Metropolitan Edison

Co., 419 U.S. 345, 349 (1974) (quoting Shelly v. Kraemer, 334

U.S. 1, 18 (1948)). Fourth Amendment jurisprudence

establishes this same distinction: only unreasonable searches

and seizures conducted by the government and its agents are

prohibited. United States v. Jacobsen, 466 U.S. 109, 113

(1984); Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989).

The statute that provides a remedy for constitutional

violations committed by state officials, 42 U.S.C. 1983,

establishes a similar dichotomy. Under Section 1983, liability

13

attaches only to conduct occurring “under color of law."

Thus, the only proper defendants in a Section 1983 claim are

those who "represent [the state] in some capacity, whether

they act in accordance with their authority or misuse it."

National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179,

191 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)).

Accordingly, the conduct that constitutes state action under

the Fourth and Fourteenth Amendments necessarily

constitutes conduct “under color of law" pursuant to Section

1983. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982).

The United States Supreme Court has identified several

principles underlying the constitutional distinction between

governmental action and private conduct. First, it "preserves

an area of individual freedom by limiting the reach of federal

law and federal judicial power." Id. at 936. Second, it "avoids

imposing on the State, its agencies or officials, responsibility

for conduct for which they cannot fairly be blamed." Id.

Application of the state action doctrine has been

characterized as “one of the more slippery and troublesome

areas of civil rights litigation." International Soc'y for Krishna

Consciousness, Inc. v. Air Canada, 727 F.2d 253, 255 (2d Cir.

1984) (per curiam) (quoting Graseck v. Mauceri, 582 F.2d 203,

204 (2d Cir. 1978), cert. denied 439 U.S. 1129 (1979)). Other

commentators have found the doctrine to be "the paragon of

unclarity," Charles L. Black, Jr.. THE SUPREME COURT,

1966 TERM-FOREWORD: "STATE ACTION," EQUAL

PROTECTION, AND CALIFORNIA'S PROPOSITION 14, 81

Harv. L. Rev. 69, 89 (1967), and a "protean concept," Thomas

P. Lewis, THE MEANING OF STATE ACTION, 60 Colum. L.

Rev. 1083, 1085 (1960). The United States Supreme Court has

acknowledged that the determination as to whether

particular conduct constitutes state action "frequently admits

of no easy answer." Jackson, 419 U.S. at 350.

The United States Supreme Court has taken a flexible

approach to the state action doctrine, applying a variety of

tests to the facts of each case. In some instances, the Court

has considered "whether there is a sufficiently close nexus

between the State and the challenged action of the regulated

entity so that the action of the latter may be fairly treated as

that of the State itself." Id. at 351. The Court has also inquired

14

whether the state has "so far insinuated itself into a position

of interdependence" with the private party, Burton v.

Wilmington Parking Auth., 365 U.S. 715, 725 (1961), that there

is a “symbiotic relationship" between them, Moose Lodge No.

107 v. Irvis, 407 U.S. 163, 175 (1972). In addition, the Court

has held that if a private party is "a willful participant in joint

activity with the State or its agents," then state action is

present. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)

(quoting United States v. Price, 383 U.S. 787, 794 (1966)).

Finally, the Court has ruled that a private entity that exercises

“powers traditionally exclusively reserved to the State" is

engaged in state action. Jackson, 419 U.S. at 352. See

generally 1 Martin A. Schwartz & John E. Kirklin, SECTION

1983 LITIGATION: CLAIMS, DEFENSES, AND FEES, 5.10 to

5.15 (2d ed. 1991) (explaining various tests for state action).

Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442 (10th

Cir. 1995). The applicable tests do not require that the private

actor take on all traditional governmental functions, indeed,

Colorado is abundantly populated with special districts,

including school districts, fire protection districts, library

districts, recreation and parks districts, wastewater districts,

and the like. The district court placed emphasis upon the fact

that QHTA exists within the municipal limits of the City of

Aurora (Appendix p.333); but such a limitation would mean

that the special districts, which are _ indisputably

governmental, would not meet the test.

The public or quasi-municipal corporation is an arm

of the state, created for purposes of convenience of

administering state-related services. Entities such as school

districts, sewer authorities and transit authorities are quasi-

municipal corporations and are not general purpose

governments. Nonetheless, these entities are created under

state law and serve important governmental interests. The

acts of these entities are considered "state action" for the

purposes of the fourteenth amendment. See, e.g., Memphis

Light, Gas and Water Division v. Craft, 436 U.S. 1 (1977).

While QHTA does not exercise express powers carved

out of the local government's general grant of powers, QHTA

acts as a special government to those residents within its

"jurisdiction".

15

This governmental role assumed by QHTA creates a

special need to observe strictly the dictates of due process of

law, a need made more acute by two powers: QHTA's rule-

making authority and its assessment authority. Clearly,

references to due process include the central premise that

homeowners associations such as QHTA are the functional

equivalent of state actors and their decisions regarding the

governance of the local residential community amount to

state action. See, eg., Evans v. Newton, 382 U.S. 296,

299(1966). ("[w]here private individuals or groups are

endowed by the state with powers or functions governmental

in nature, they become agencies or instrumentalities of the

state and subject to its constitutional limitations").

One of the main arguments for holding private parties

to constitutional standards is that the private party has

engaged in a public function. See generally, L. Tribe,

AMERICAN CONSTITUTIONAL LAW 1705 (2nd Ed. 1987).

Professor Tribe explains: "However described, there must

exist a category of responsibilities regarded at any given time

as so public or governmental that their discharge by private

persons, pursuant to state authorization, even though not

necessarily in accord with state direction, is subject to the

federal constitutional norms that would apply to public

officials discharging those same responsibilities." Id.; see,

e.g., Marsh v. Alabama, 345 U.S. 461 (1953).

Since Marsh, a line of cases has emerged basically

holding that when private parties perform public functions

which have been traditionally the domain of the state and

federal government, those parties are state actors and their

public or political decisions amount to state action. With

reference to Marsh , the Tenth Circuit has rejected several

attempts to attribute "state action" to the conduct of private

individuals and organizations. See, e.g., Phelphs v. Wichita

Eagle Beacon, 886 F.2d 1262, 1271 n. 9 (10th Cir. 1989)

("publication of the newspaper articles were private acts, not

acts involving a public function."); Behagen v. Amateur

Basketball Association of the United States, 884 F.2d 524, 520

(10th Cir. 1989) (coordination and control of amateur sports

not a traditional governmental function); Gilmore v. Salt Lake

Community Action Program, 710 F.2d 632, 635-38 (10th Cir.

16

1983) (federal funding and regulation of private non-profit

community action agency insufficient, standing alone, to find

state or federal action especially where "the appellant fails to

show that the alleged deprivation resulted from a

governmental rule, policy or decision."); Ve-Ri-Tas, Inc. v.

Advertising Review Council of Metropolitan Denver Inc., 567

F.2d 963, 965 (10th Cir. 1977) (exchange of records between

public agencies and Better Business Bureau plus overlapping

regulatory efforts "closely approach the public function line,

but do not cross it."); Mondragon v. Tenorio, 554 F.2d 423,

425 (10th Cir. 1977) (New Mexico statute creating private

organization to manage and control particular land grant does

not imbue action of such organization with "color of state

law"); Browns v. Mitchell, 409 F.2d 593, 596 (10th Cir. 1969)

(disciplinary decisions of University of Denver not state

action merely because of special tax exemption accorded

D.U. by "virtue of original territorial charter incorporating

Colorado Seminary.").

However, as demonstrated above and in the lower

court pleadings, QHTA is a classic example of a private

organization performing a public function within the meaning

of Marsh v. Alabama and the public function line of cases.

See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345,

352 (1974) ("We have, of course, found state action present in

the exercise by a private entity of powers traditionally

exclusively reserved to the state."); see also Cohen v. Kite Hill

Community Association, 191 Cal. Rptr. 209, 215 (1983) ("Like

any community, Kite Hill consists of individual members who

- form in the aggregate an organic whole. Thus, like any

government, the Association must balance individual

interests against the general welfare.")

In light of QHTA's status as a state actor, Lott's

conduct as described in the amended complaint is also state

action and brings her within the constitutional constraints as

identified in the amended complaint. See, e.g., Schaefer v.

Wilcock, 676 F. Supp. 1092, 1109-10 (D. Utah 1987)

(independent contractor liable for constitutional violations

when acting in conjunction with state actor).

17

The district court improperly assessed attorney fees

against the Petitioner. In finding that the Petitioner's

Amended Complaint was not a good faith attempt to extend

existing law, the district court found that no evidence had

been presented to support a claim that QHTA exercised

traditional governmental functions. The assertion is contrary

to the record, as the declarations show the association

providing water and other services to the members, while

restricting their use of the property. Here the district court

seemed to find it significant that the evidence of the scope of

QHTA's authority was presented as an exhibit to Defendants'

motions, but the law imposes no obligation on the Petitioner

to originate the evidence which would support its claims that

Defendants' summary judgment motion cannot be granted.

As the Pueblo case points out, the commentators

generally agree that where there is no genuine issue of fact,

the court may enter summary judgment for either party,

whether or not such party has made a motion therefore. See

10A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND

PROCEDURE: Civil 2d § 2720, at 29-30, "the weight of

authority is that summary judgment may be rendered in favor

of the opposing party even though he has made no formal

cross-motion under Rule 56."

Pueblo of Santa Ana v. Mountain States Telephone

and Telegraph Co., 734 F.2d 1402, 1407 (10th Cir. 05/14/1984).

The evidence from which the Plaintiff argues an extension of

existing law was presented as an exhibit to the Defendants’

motions.

associations, ’

Colcrado Common Interest Ownership Act (C.R.S. §38-33.3-

101, et seq.). The Act establishes a comprehensive regulatory

scheme for the governance of those individuals and families

who choose to live in covenant controlled residential

communities." The declarations were sufficient to establish

that relationship with governmental action. Gallagher v. Neil

Young Freedom Concert, 49 F3d 1442 (10th Cir. 1995) shows

that the issues presented are very complex and thus not

Suited to assessing attorney fees against plaintiffs seeking to

18

further define the law to determine contours of state action.

The mere fact that the district court would find it necessary

in its Order on Motion to Dismiss and Motion for Summary

Judgment to reach the issue of qualified immunity with

respect to one of the Defendants would seem to show that

this is an area in which the law may continue to evolve.

Application of the state action doctrine has been

characterized as “one of the more slippery and troublesome

areas of civil rights litigation." International Soc'y for Krishna

Consciousness, Inc. v. Air Canada, 727 F.2d 253, 255 (2d Cir.

1984) (per curiam) (quoting Graseck v. Mauceri, 582 F.2d 203,

204 (2d Cir. 1978), cert. denied 439 U.S. 1129 (1979)). [**12]

Other commentators have found the doctrine to be "the

paragon of unclarity," Charles L. Black, Jr., The Supreme

Court, 1966 Term—Foreword: "STATE ACTION," EQUAL

PROTECTION, AND CALIFORNIA'S PROPOSITION 14, 81

Harv. L. Rev. 69, 89 (1967), and a "protean concept," Thomas

P. Lewis, The Meaning of State Action, 60 Colum. L. Rev.

1083, 1085 (1960). The Supreme Court has acknowledged that

the determination as to whether particular conduct

constitutes state action "frequently admits of no easy

answer." Jackson, 419 U.S. at 350.

The Court has taken a flexible approach to the state

action doctrine, applying a variety of tests to the facts of each

case. In some instances, the Court has considered “whether

there is a sufficiently close nexus between the State and the

challenged action of the regulated entity so that the action of

the latter may be fairly treated as that of the State itself." Id.

at 351. The Court has also inquired whether the state has "so

far insinuated itself into a position of interdependence" with

the private party, Burton v. Wilmington Parking Auth., 365

U.S. 715, 725 (1961), that there is a "symbiotic relationship"

between them, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175

(1972). In addition, the Court has held that if a private party is

“a willful participant in joint activity with the State or its

agents," then state action is present. Adickes v. S.H. Kress &

Co., 398 U.S. 144, 152 (1970) (quoting United States v. Price,

383 U.S. 787, 794 (1966)). Finally, the Court has ruled that a

private entity that exercises “powers traditionally exclusively

reserved to the State" is engaged in state action. Jackson, 419

19

U.S. at 352. See generally 1 Martin A. Schwartz & John E.

Kirklin, SECTION 1983 LITIGATION: CLAIMS, DEFENSES,

AND FEES, 5.10 to 5.15 (2d ed. 1991) (explaining various

tests for state action).

Under each of these four tests, "the conduct allegedly

causing the deprivation of a federal right" must be "fairly

attributable to the State." Lugar, 457 U.S. at 937. In order to

establish state action, a plaintiff must demonstrate that the

alleged deprivation of constitutional rights was "caused by

the exercise of some right or privilege created by the State or

by a rule of conduct imposed by the State or by a person for

whom the State is responsible." Id. In addition, "the party

charged with the deprivation must be a person who may

fairly be said to be a state actor." Id. In order to resolve the

state action question before us, we will apply these general

principles and each of the tests articulated by the Supreme

Court. Gallagher v. Neil Young, Id.

Colorado Revised Statutes §13-17-201 cannot be

applied to petitioner so as to enter an award attorney fees

against him. The district court awarded attorney fees under

C.R.S. §13-17-201, COLORADO REVISED STATUTES, finding

it mandatory where the Complaint was dismissed under Rule

12(b), FEDERAL RULES OF CIVIL PROCEDURE.

Significantly, Article 17 of Title 13, COLORADO REVISED

STATUTES, does not apply to an action under 42 U.S.C.

§1983.

Section 13-17-201 authorizes an award of fees if a tort

action is dismissed pursuant to a motion filed under C.R.C.P.

12(b). We agree with plaintiff that an award of fees under

this statute was error for two reasons. First, an award of fees

under this provision requires that the entire tort action be

dismissed pursuant to a motion filed under C.R.C.P. 12(b).

Jaffe v. City & County of Denver, 15 P.3d 806 (Colo. App.

2000). Such was not the case here. Second, §13-17-201 does

not apply to a $1983 claim. Instead, 42 U.S.C. §1988 (2000)

applies, and that section does not authorize an award of fees

and costs unless the claim is properly characterized as

frivolous, vexatious, unreasonable, groundless, or made in

bad faith. State v. Golden's Concrete Co., 96? °.2d 919 (Colo.

20

1998). Berg v. Jack Shapiro, 00CA0002, Slip at page 7

(Colo.App. March 15, 2001) (Emphasis added.) Clearly, the

award must fail insofar as it is based upon §13-17-201,

COLORADO REVISED STATUTES.

CONCLUSION

There was a time when separate but equal was

recognized as the state of the law in this country (Plessy v.

Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896)).

This is not the standard courts are to now apply. The

benchmark for awarding attorney fees under §1988 was never

intended to discourage or cast a chill upon plaintiffs for

arguing a good-faith extension of the law. Neil Young tells

you that the law in the area of state action is a "slippery

slope" that is still not well defined - there is no 10th Circuit

case that has reached Homeowners associations and their

conduct in this area of the law concerning state action. The

district court's order and the Tenth Circuit's order with

respect to QHTA cannot stand, as Petitioner's complaint

sufficiently meets the governmental action test.

In the alternative, should this Court determine that

QHTA is not a state actor, that determination is sufficiently

complex and relating to an evolving area of law, such as to

preclude an award of attorney fees to the defendants - the

bar is much higher when is comes to an award of attorney

fees and costs under §1988 than the trial court applied in this

case to Petitioner.

Respectfully Submitted,

DANIEL J. SCHENDZIELOS.

Counsel of Record

1602 S. Parker Rd., Suite 203

Denver, Colorado

(303) 750-3015

Attorney for Petitioner

la

(Any footnotes trail end of each document)

Nos. 00-1092 & 00-1424

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GREGORY BURCHER,

Plaintiff-Appellant,

V.

QUINCY HILL TOWNHOUSE ASSOCIATION

~ and JUDY LOTT,

Defendants-Appellees.

September 24, 2001, Filed

NOTICE:

RULES OF THE TENTH CIRCUIT COURT OF APPEALS MAY

LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE

REFER TO THE RULES OF THE UNITED STATES COURT

OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY:

(D. Colo.). (D.C. No. 988-WM-672).

DISPOSITION:

AFFIRMED.

COUNSEL:

For GREGORY BURCHER, Plaintiff - Appellant (00-1092):

Daniel J. Schendzielos, Schendzielos & Associates, Denver,

Co.

For QUINCY HILL TOWNHOUSE ASSOCIATION, Defendant -

Appellee (00-1092): Lawrence B. Leff, Winzenburg, Leff,

Purvis & Payne, Denver, CO. Carey Gunn Helm, Winzenburg,

Leff, Purvis & Payne, LLP, Vail, CO.

2a

For JUDY LOTT, Defendant - Appellee (00-1092): Claire Diaz,

John P. Craver, Todd Q. Clarke, White & Steele, Denver, CO.

For GREGORY BURCHER, Plaintiff - Appellant (00-1424):

Roger Cisneros, Schendzielos & Associates, L.L.C., Denver,

CO. Daniel J. Schendzielos, Schendzielos & Associates,

Denver, CO.

For QUINCY HILL TOWNHOUSE ASSOCIATION, Defendant -

Appellee (00-1424): Lawrence B. Leff, Winzenburg, Leff,

Purvis & Payne, Denver, CO. Carey Gunn Helm, Winzenburg,

Leff, Purvis & Payne, LLP, Vail, CO.

For JUDY LOTT, Defendant - Appellee (00-1424): Claire Diaz,

John P. Craver, Todd Q. Craver, White & Steele, Denver, CO.

JUDGES:

Before EBEL, KELLY, and LUCERO, Circuit Judges.

OPINIONBY:

Paul J. Kelly, Jr.

OPINION: |

ORDER AND JUDGMENT’

After examining the briefs and appellate record, this

panel has determined unanimously to grant the parties'

request for a decision on the briefs without oral argument.

See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

Plaintiff Gregory Burcher brought suit against his

homeowners’ association and one of its representatives,

asserting violations of his constitutional rights, federal law,

and state tort law. Some of plaintiff's claims were settled or

withdrawn. On the remainder, the district court granted

summary judgment in favor of defendant Quincy Hill

Townhouse Association and granted defendant Judy Lott's

motion to dismiss. The court also assessed attorney's fees in

3a

the amount of $ 54,066.71 against plaintiff. He appeals. We

have jurisdiction under 28 U.S.C. § 1291.

The parties are familiar with the facts and we need not

repeat them here. "We review the district court's grant of

summary judgment de novo, applying the same legal standard

used by the district court." Simms v. Okla. ex rel. Dep't of

Mental Health & Substance Abuse Servs., 165 F.3d 1321,

1326 (10th Cir. 1999). Summary judgment is proper if the

moving party shows that “there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c). "When

applying this standard, we view the evidence and draw

reasonable inferences therefrom in the light most favorable

to the nonmoving party." Simms, 165 F.3d at 1326.

Because the legal sufficiency of a complaint is a question

of law, we also review de novo a dismissal under Fed. R. Civ.

P. 12(b)(6) for failure to state a claim. Sutton v. Utah State

Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.

1999). A court considering a Rule 12(b)(6) motion accepts

all well-pleaded allegations in the complaint as true, viewing

them in the light most favorable to the nonmoving party. Id.

"A 12(b)(6) motion should not be granted unless it appears

beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief." Id.

(quotation omitted).

Plaintiff argues that: (1) a homeowners’ association is the

functional equivalent of a municipality with general

governmental powers over its members such as to act under

color of law; (2) the district court improperly assessed

attorney's fees against him; (3) Colo. Rev. Stat. § 13-17-201

cannot be applied to this case and does not support an award

of attorney's fees against him; (4) the district court's order is

inadequate to establish the reasonableness of attorney's fees.

We have carefully reviewed the district court's decisions

under the applicable standards in light of the parties’

materials and the record on appeal. We are unpersuaded by

plaintiff's claims of error, and affirm for substantially the

same reasons as those set forth by the district court.

AFFIRMED.

Entered for the Court -

Paul J. Kelly, Jr.

Circuit Judge

Footnotes

* This order and judgment is not binding precedent,

except under the doctrines of law of the case, res judicata,

and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and

judgment may be cited under the terms and conditions of

10th Cir. R. 36.3.

rae Be Py Lae AL ee ae

: 5a

Civil Action No. 98-WM-672

UNITED STATES DISTRICT FOR THE

DISTRICT OF COLORADO

JUDGE WALKER A. MILLER

GREGORY BURCHER,

Plaintiff,

v.

QUINCY HILL TOWNHOUSE ASSOCIATION

and JUDY LOTT,

Defendants.

February 11, 200, Filed

ORDER ON MOTION TO DISMISS AND MOTION FOR

SUMMARY JUDGMENT

The plaintiff is a long-time homeowner and member

of the defendant Quincy Hill Townhouse Association

(Association). The plaintiff has been embroiled in disputes

with the Association and its agents, including defendant Judy

Loft (Loft), over the collection of homeowner fees arid the

destruction of landscaping improvements made by the

plaintiff. The plaintiff asserts claims against the Association

for the deprivation of his constitutional rights (due process

and equal protection claims), for violations of state tort laws

(breach of contract, breach of fiduciary duty, and slander of

title claims), and for violations of the Pair Debt Collection

Practices Act. The plaintiff makes similar claims against Lott

as a representative of the Association.’

The Association moves for summary judgment

contending that the constitutional claims must be dismissed

because the Association is not a state actor, that the state law

claims must be dismissed because they have previously been

litigated in state court, and that the federal statutory claims

must be dismissed because the Association is not a debt

collector for purposes of the Fair Debt Collection Practices

6a

Act (and, in the alternative, the plaintiff has admitted these

claims are moot). Defendant Lott moves to dismiss

essentially on the same grounds as the Association plus on

the grounds of qualified immunity.

Statement of Facts

The Association is a homeowners’ association

governed by a Declaration of Covenants and Restrictions. It

owns common areas in the residential development where

the plaintiff's home is located. The plaintiff has been a

member of the Association since 1989. When the plaintiff fell

behind in his dues, the Association filed a notice of lien on his

property and ultimately a lawsuit to recover the dues in state

court in response) the plaintiff in this case asserted

counterclaims for breach of contract and breach of fiduciary

duty against the Association. At trial, the state court awarded

judgment for the Association and dismissed the

counterclaims against the Association. When the plaintiff

refused to satisfy the judgment, the Association filed a writ of

garnishment Finally, in 1997, the judgment was satisfied and

the lien removed. In the interim, the plaintiff started

landscape work on common areas of the development

adjacent to his home without the approval of the Association.

The Association rejected the work and removed the work

from the common areas. Consequently, the plaintiff tiled this

lawsuit.

Standard of Review

A motion to dismiss is appropriate when it appears

beyond doubt that the plaintiff can prove no set of facts in

that would entitled him to relief.

Fed.R.Civ.P. 12(b)(6). gene “ganic Inc., 104 F.3d 1215,

1224(10th Cir. 1997). In ruling on a motion to dismiss, the

court must accept as true all weil-pleaded facts and construe

all reasonable allegations in the light most favorable to the

plaintiff. United States v. Coloradc Supreme Court, 87 F.3d

1161, 1164 (10th Cir. 1996).

Summary judgment is appropriate when there is no

genuine issue of material fact and the moving party is entitled

7a

traditional public functions. Gallagher v. Nell Young Freedom

Concert, 49 F.3d 1442, 1456 (10th Cir. 1995).

In the past, though, the Supreme Court has limited

this doctrine to specific situations where a private company

operated a company town that restricted the dissemination of

religious materials and to a political organization that

8a

effectively determined who was elected to public office. See

Marsh v. Alabama, 326 U.S. 501 (1953); Terry v. Adams, 345

U.S. 461 (1953). The rationale behind these decisions was that

the private entities had acted in the public sphere as the

functional equivalent of a government enterprise. In later

decisions, the Supreme Court has made clear that the test is

not whether the entity had some characteristics of a

municipality, but whether it has all the attributes of a city.

See Hudgens v. National Labor Relations B’d, 424 U.S. 507,

516 (1976); Lloyd Corp. Lid. v. Tanner, 407 U.S. 551, 568-69

(1972).

Turning to the Association, it is a non-profit

organization of member homeowners, including the plaintiff.

The amended complaint suggests that the Association was

created pursuant to state law, formed to govern its members,

provide a structure for governing its members, grants

members the opportunity to vote, require the payment of

homeowners fees to maintain common areas, regulates

community appearance through quasi-zoning regulations,

entertains requests from members to change the character or

appearance of their homes, holds the power to enforce its

policies in state court and can sue and be sued in court. See

Colo.Rev.Stat. § 38-33.3-101 et. seq.

However, the plaintiff provides no evidence to

support his allegations that the Association is the functional

equivalent of a municipality. Moreover, the plaintiff admits

that state law does not invest the Association with general

government powers equivalent to a municipality. See

Woodmoore Improvement Ass'n it. Brenner, 919 P.2d 928,

931 (Colo.App. 1996) (legislative act to govern homeowner

associations does not transform them into cities). In fact the

plaintiff further admits that the Association is situated within

another municipality, Aurora, which has general municipal

powers over it.Finally, the plaintiff admits that he has only

uncovered one federal case addressing the state action issue

in the context of homeowner associations. See Rass it.

Hatfield, 640 F.Supp. 708, 708-11 (D.Kan. 1986).

In Ross, the court rejected the notion that an

association of homeowners came under the public functions

9a

test of Marsh. Instead, the court found that the association

did have the substantial powers of a municipal

not provide its own public schools, police

services, or fire protection, and did not have public spaces for

business needs of the community. Jd. at 711. Thus, the court

held that the association lacked attributes to find it

In contrast, the Association provided a copy of the

10a

actor. Instead, the Supreme Court has specifically held that

the public functions test, as the plaintiff admits in his brief,

requires that the entire entity be the functional equivalent of a

municipality. Hudgens v. National Labor Relations B’d, 424

U.S. 507(1978).

The plaintiff also argues that the mere act of judicial

enforcement of the covenants that deprive the plaintiff of

constitutional rights is enough to sustain state action. See

Shelley v. Kraemer, 334 U.S. 1 (1948). In Shelley, the court

found state action based upon the parties desire to seek

judicial enforcement of restrictive racial covenants, in this

matter, however, the plaintiff does not allege that the

covenants are racially restrictive or otherwise unlawful. To

extend the doctrine of Shelley as the plaintiff suggests would

make all private individuals who seek judicial enforcement of

incomes ae on corti dent Br ct ss Tae en

t.

Likewise, these same principles govern the motion to

dismiss filed by defendant Lot Thus, the constitutional claims

against her must be dismissed because she is not a state

actor. Moreover, I also find that Lott, as a bookkeeper and

agent of the Association, would be entitled to the defense of

qualified immunity. A state officer is entitled to qualified

immunity unless the plaintiff can prove that the state officer

violated clearly established laws of which a reasonable

person would have known. Patrick v. Miller, 953 F.2d 1240,

1243 (lath Cir. 1992). In the amended complaint the plaintiff

contends that Loft violated his due process and equal

protection rights by denying him notice and the opportunity

to be heard and by granting neighbors, but not him, the

permission to alter common areas adjacent to homeowner

property. Thus, the plaintiff states a claim for violation of his

constitutional rights.

However, the plaintiff must also establish that these

constitutional violations were clearly established such as to

give notice to the state actor of her impermissible actions. As

the plaintiff admits, however, no federal court has ever found

that a homeowner association is a state actor. Thus, Loft

could not have understood that she owed the plaintiff any

lla

constitutional responsibilities as the functional equivalent of

a municipal officer. Therefore, Loft is entitled to the defense

of qualified immunity for claims that she violated the

plaintiff's constitutional rights.

For these reasons, the motion for summary judgment

and motion to dismiss the plaintiff's first and second claims

should be granted in favor of the defendants.

State Law Clai

With regard to his breach of contract and fiduciary

duty claims, these claims were previously tried and decided

adversely to the plaintiff in Arapahoe County Court (Case No.

96C-81 6). The plaintiff contends that the state court

dismissed these claims for being "outside its jurisdiction’ and

that the judge instructed him to assert these claims in an

equitable forum. However, the plaintiff fails to provide any

evidentiary support for these assertions. Instead, the

transcripts of the proceeding indicate that the state court

heard arguments on the merits and dismissed these claims at

the conclusion of the trial. See Transcript of Judgment, Ex. 4.

Therefore, these claims were previously litigated by the

plaintiff against the Association in state court and are baited

under the doctrine of res judicata as to the Association and

collateral estoppel as to Lott See In the Interest of M.C., 895

P.2d 1098 (Colo. App. 1994); Fehrin get v. F.H. Martin Drug

Co., 138 P. 1007 (Colo. 1914); Carter v. City of Emporia, 815

F.2d 617,619(10th Cir. 1987).

As to the claim of slander of title, the plaintiff must

establish that a pending sale was thwarted in order to

succeed on this claim. Sussex Reel Estate Corp. v. Sbrocca,

634 P.2d 999 (Colo.App. 1981). In fact, the evidence

demonstrates that the lien was removed upon satisfaction of

the judgment against the plaintiff in state court Moreover, the

plaintiff fails to provide any evidence to support the

existence of a pending sale or that his property was even on

the market while the lien was in effect. See Fountain v. Mojo,

687 P.2d 496,500 (Colo.App. 1984). Thus, there is no genuine

issue of material fact to support this claim.

oe eee

Sat FP Bree a Ne

12a

As to defendant Lott, in the altemative, Colorado law

does not recognize a cause of action for aiding and abetting

the commission of a tort except in the limited circumstance

of a partnership. See Holmes v. Young, 885 P.2d 306, 308-09

(Colo.App. 1994). Thus, the plaintiffs claims against Loft for

aiding and abetting breach of contract, aiding and abetting

breach of fiduciary duty, and aiding and abetting slander of

title should be dismissed. Moreover, the plaintiff failed io

respond to the defendant’s arguments for dismissal of the

state law claims. Thus, the defendant’s motion to dismiss on

these claims is uncontested by the plaintiff. See Move

Organization it. City of Philadelphia, 89 F.R.D. 521, 523

(E.D.Penn. 1981). Therefore, the plaintiff has conceded these

claims against Loft. See Bumison it. Maclas, 131 F.3d 151,

1997 WL 755390 (10” dir. 1997) (unpublished opinion).

For these reasons, the Association’s motion for

summary judgment and defendant Loft’s motion to dismiss

the state law claims for breach of contract breach of

fiduciary, and Sander of title (third, fourth, and seventh

claims for relief) should be granted against the plaintiff

Federal Statutory Claims

The plaintiff claims that the Association violated his

rights under the Fair Debt Collection Practices Act as a debt

collector who pursued legal action against the plaintiff to

recover past association dues. See 15 U.S.C. § 1692 et seq. In

this case, however, the Act imposes liability on debt

collectors, not creditors. See Wadlington v. Credit

Acceptance Cap., 76 F.3d 193 (6th Cir. 1996). Clearly, the

Association is the creditor. In fact, the plaintiff, in his

response brief to the motion for summary judgment,

concedes that these claims are moot. Moreover, as mentioned

above, the plaintiff did not respond to the defendant Lott's

motion to dismiss the state law claims and has thus conceded

this claim as well.

Therefore, the Association’s motion for summary

judgment and defendant Loft’s motion to dismiss claims of

violation of the Fair Debt Collection Practices Act (fifth and

sixth claims for relief) must be granted against the plaintiff.

13a

Accordingly, it is ordered:

1. The defendant Association's motion for summary

judgment, filed on April 26, 1999, is granted.

2. The defendant Lots motion to dismiss, flied on

September 17, 1998, is granted.

3. The plaintiffs claims against the defendants shall be

dismissed with prejudice.

4. The defendants, as the prevailing parties,

Dated this 11" day of February, 2000

BY THE COURT

Walker D. Miller, Judge

Footnotes

‘In addition to the constitutional and federal statutory claims

against Lot, the plaintiff filed state law claims against Loft for

aiding and abetting in the commission of the same torts filed

‘The plaintiff also argues that the association’s power of

eminent domain is governmental (see Colo.Rev.Stat. § 38-

33.3-107), but many private organizations possess the power

of eminent domain. See Colo. Rev. Stat §§ 38-2-107; 38-4-101-

104; 38-5-181.

l4a

Civil Action No. 98-WM-672

UNITED STATES DISTRICT FOR THE

DISTRICT OF COLORADO

JUDGE WALKER A. MILLER

QUINCY HILL TOWNHOUSE ASSOCIATION

and JUDY LOTT,

Defendants.

February 11, 200, Filed

JUDGMENT

Pursuant to arid in accordance with the Order on

Motion to Dismiss and Motion for Summary Judgment

entered on February 11, 2000, by Judge Walker D. Miller,

which is incorporated herein by reference as if fully set forth,

it is ordered that

1. Judgment is entered in favor of the defendants Quincy

Hill Townhouse Association and Judy Lot and against

plaintiff Gregory Burcher,

2. The complaint arid cause of action is dismissed with

prejudice.

3. Defendants may have their costs upon the filing of a

bill of costs within ten days of entry of judgment.

DATED at Denver, Colorado, this 11" day of February, 2000.

FOR THE COURT

JAMES R MANSPEAKER, CLERK

By

Stephen P. Ehrlich

Chief Deputy Clerk