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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 905

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0946%3A1. Public record. Not legal advice.