New litigation over forums > HOA Forum

Unanswered

Active Topics

Forums

Forums > Homeowner Association > HOA Discussions

Subject: New litigation over forums

Prev Next

You are not authorized to post a reply.

Author

Messages

JosephW
(Michigan)

Posts:764

03/24/2008 7:02 AM
From Texas - for those running forums, discussion boards, or writing things about others, you might want to keep an eye on this one: Frisco homeowners association, residents in free speech fight 11:27 PM CDT on Sunday, March 23, 2008 By JIM GETZ / The Dallas Morning News jgetz@dallasnews.com FRISCO – It started as a typical neighborhood tussle, a disagreement over screening bushes and air-conditioning units. But now, the arguing between the Frisco Fairways Homeowners Association and three of its residents has erupted into a full-blown legal battle over free speech that may have ramifications for members of homeowner associations across Texas. Last month, the association sued David Snell, David Doumani and Doug Macari in Denton County state district court on charges of libel, slander and defamation, claiming the three harmed the association and its board members by posting messages critical of them in an online forum. Suits like this are rare, said Charles Davis, executive director of the National Freedom of Information Coalition at the University of Missouri. And Mr. Davis said he's never heard of an association winning one. But if it did win, "it certainly would send a message to future critics of homeowners associations," he said. "It would narrow the debate." The suit alleges that in their online postings, Mr. Snell, Mr. Doumani and Mr. Macari stated or implied that the board lied to association members, engaged in questionable financial dealings and acted unethically. It also claims they posted private information about board members. Charles W. Branham III, an attorney for the defendants, said the board is trying to stifle free speech and must prove that the messages were false, defamed reputations and were posted with malice – the ingredients for a successful libel suit. "You don't get to bring a lawsuit against your members because they don't like the way the board is running things," he said. Addison lawyer Christopher Payne, who represents the association and the board, sees things differently. "I think it's unfortunate that people who are volunteers get assailed in the fashion that these members of the board of directors were," he said. Rule enforcement In Texas, homeowners association board members typically are unpaid and elected. The association collects dues and enforces provisions designed to retain the neighborhood's aesthetic quality and protect home values. It was enforcement that sparked the feuding in Frisco Fairways, a subdivision of about 600 homes nestled against a golf course in northwest Frisco. According to the lawsuit, the board notified homeowners that it intended to enforce provisions requiring all air conditioners, pool equipment and other objects visible from the street to be screened. The board gave homeowners an option to have a shrub installed at a discounted rate. At that point, the lawsuit says, Mr. Snell, Mr. Doumani and Mr. Macari began questioning board members and ultimately started harassing them, first on a community forum on the association's Web site, then in a public forum, Frisco-Online.com. On Feb. 15, the board members sued, saying the defendants knew the statements were false and damaged their reputations. The lawsuit, which is expected to head to trial in early April, seeks damages and an injunction to prevent future postings from the defendants. The lawsuit does not make clear what statements comprised the alleged libel, and Mr. Payne declined to provide specifics, saying he did not want the comments to be widely circulated. But in a court response to the lawsuit, Mr. Snell and other defendants provided a sampling of the postings. In one statement about a board member, Mr. Snell wrote: "I am victim to a LESS than ethical and honest VP simply doing/saying whatever he likes without ANY noted reprimand from HIS friend ... our president ... DOUBLE standards running wild here." In another, he said: "DO we live in a communistic community because I am beginning to think we do?" The legal document also includes private messages that Mr. Snell said were sent to him by Richard O'Neil, one of the association board members. One, dated Nov. 12, reads: "Did I paint you in a negative lite? Only in regard to your idiot posts and your constant whining like a 3 year old." Another says: "As long as I'm on the Board, every CCR in the Declaration will be enforced to the extent that we are able. If that doesn't suit you, then that is tough." Mr. Snell disagrees with the lawsuit's version of events, saying he was questioning in part why the board was focusing on shrubs instead of collecting unpaid dues. He also said that, among other concerns, the board would not allow Mr. Doumani and him to speak at a meeting to voice their concerns. "I'm outspoken and I don't like being bullied," said Mr. Snell, who noted his home already met the screening requirement before the issue erupted. "I just think they thought they would financially crush us. They didn't expect us to fight back." Mr. Doumani said he continued his postings after the board declined several attempts to meet with him. Mr. Macari, a Fairways resident for just over a year, said: "I'm disappointed in how this whole thing happened. Unfortunately, it's not in my best interest to comment now." Board President Phil Luzius said he and other board members – Mr. O'Neil, Gabriel Corra, Dave Wilcox and John Mistr– also would not comment. Mr. Davis, the free speech expert, said in this case the court must decide whether there is a difference between exercising one's First Amendment rights to criticize a homeowners association and actually libeling it. If the association wins in court, it could set a precedent that would allow other associations in Texas to take legal action against dissenters as well, he said. Houston lawyer Charles Daughtry, whose firm represents some homeowners associations, said he gets several inquiries a year from associations about posted messages but has never advised one to sue. "We generally tell them, unless what [the poster] is making is clearly a statement of fact about a specific instance, it's not worth their time and money to pursue," Mr. Daughtry said. Nationally, such suits are rare. In Wyoming, a case was dismissed, while in Colorado, the suing association prevailed. Last year, a developer filed a lawsuit in Orlando's 9th Judicial Circuit Court against a resident who claimed that the developer misspent homeowner association money. That suit is ongoing. Neighbors torn Down the winding roads of Frisco Fairways are plenty of manicured lawns and stone and brick homes in the $200,000 to $400,000 range. But there are few residents who know about the lawsuit. Chris McCawley, 55, said he could see how Mr. Snell's constant hammering on the issues was annoying, but not vindictive. "He was frustrated," Mr. McCawley said. "He just wanted a board meeting. It's not the United Nations." Shelly Fairfield, a 3 ½-year resident who just volunteered for the association's Architectural Control Committee, said, "I honestly don't think very many people think about it, or care about it, except for the people involved." Other residents said they either weren't aware of the lawsuit or preferred not to discuss it. But on the online site singled out in the lawsuit, it's a different story, with many posters alternately expressing support for the defendants or asking for more information about the suit. "This whole affair all the way to the lawsuit does nothing but lower my property values and allure of our neighborhood," said one poster, identified only as begrdr. The issue could come to a head in May, when the association's annual meeting is scheduled. Last year, only 30 to 40 neighbors showed up. "This year there will be a lot more, which is good," Ms. Fairfield said. "You should definitely be as involved as much you can, because if you don't, the choices will be made for you." WHAT IS LIBEL? Basics of a typical libel or slander case: •Claims are for false statements of fact about a person or entity that are communicated to others. •Libel generally refers to written statements, while slander generally refers to oral statements. •A successful claim must prove harm to the plaintiff's reputation, as opposed to mere insult. •Name-calling or hyperbole or statements that cannot be proved as true or false cannot be the subject of a claim. •For public figures, a successful claim must prove actual malice, meaning the defendant knew the statement was false or recklessly disregarded the truth. •The burden of proof is on the plaintiff. Joe

Joseph West Official HOATalk.com Sponsor Community Associations Network, LLC www.CommunityAssociations.net *See legal notice below (end of page) or go to www.hoatalk.com/legal

MikeS1

Posts:0

03/24/2008 7:38 AM
I hope that the HOA DOES win this one. It's real easy to judge from afar especially when you're not involved with the Board, or committees; you don't have all the correct facts; you only come to 1 or 2 board meetings per year; and you get most of your information from 3rd party sources in the community who also don't attend the board meetings. We've seen this ugliness before in blogs and it's just amazing that there is so much misiformation circluated. Folks need to be careful of what they say since we live in such a litigious society. HOA Volunteers deserve to treated with respect and dignity.

HaroldS
(Arizona)

Posts:904

03/24/2008 9:53 AM
"HOA Volunteers deserve to treated with respect and dignity." So all HOA Volunteers have pure ideals with no self serving aims? One of my grade school nuns, who was a real psychopath, told us we must respect her because she was a nun. Sorry, but rspect is earned, not achieved by putting on a black habit or volunteering for an HOA! If you have been reading here any length of time, you've seen the horror stories of some "HOA Volunteers" gone amuck. They should be treated with respect and dignity?

MicheleD
(Kentucky)

Posts:1722

03/24/2008 9:56 AM
Well, not too long ago (last year) a Colorado judge awarded an HOA something in the neighborhood of $10,000 in libel damages from a homeowner who went postal in online forums regarding the board members of her HOA. The court only considered statements "directed at either past or present board members" that were directly related to their duties as board members, and not comments about them not related to their duties. But what the considered was fodder enough. The HOA was actually the Defendant in this case, since the Homeowner brought suit against them for alleging improper application of special assessments, or something like that. They filed a counterclaim on the libel. "The court next concludes that many, if not most, of the instances identified by the Defendant are libelous per se. That is, the statements are defamatory on their face and clearly reference the Defendant or its officers and directors acting in their official capacity. These statements tend to harm the Defendant's reputation in the community. See C.J.I. 4th, 22:7. In addition, many of the instances allege criminal misconduct, refer to the board members as incompetent in the performance of their duties, and some even include references to psychiatric illnesses." The decision then listed some of the comments: HOA consists of "wanna be dictators"; HOA "almost totally corrupt;" "dictatorial ravages of their rogue boards of directors" allegations of misconduct, "power and money seekers" "Ranch psychopaths" And much much MUCH more -- Back to the decision: "The Court concludes the statements made by the Plaintiff [the homeowner] are false. Testimony presented by the Defendant contradicted these allegations, and no factual evidence was presented by the Plaintiff to support her contention that the Defendant violated state or federal law, that the Defendant committed a civil wrong, or that ny officers or directors suffer from a mental illness. " "The Plaintiff does not deny making any of the more than fifty publications identified by the Defendant. Instead she argues that she is just stating her opinion. While statements of pure opinion may be protected, in this case the Plaintiff asserts factual support for many of her opinions. See Sall v. Barber, 782 P.2d 1216 (Colo. App.1989) and Burns v. McGraw-Hill, 659 P.2d 1351 Colo. 1983). Therefore, those statements of opinion which imply or state factualy support are actionable." "In this case, the Court infds by clear and convincing evidence that the Defendant has proven its counterclaim of libel, adn that the conduct of the Plaintiff was both intentional and for the express purpose of causing harm to the Defendant ROA as well as to the individual board members. Accordingly, the Court awards damages to the Defendant and against the Plaintiff in the amount of $10,000." The HOA also sought "injunctive relief" and was given it in this form: "The Plaintiff is therefore enjoined from the following: 1. Publication in any manner or forum, including but not limited to the news media, letters to editors, community newsletters and internet and blog postings of the name of the XXXXXX Owners Association, the names of its property owners, or the names of past or present board members. 2. Publication in any manner or forum, including, but not limited to, the news media, letters to editors, community newsletters, and internet and blog postings alleging criminal conduct, civil wrongs, and mental and/or psychiatric conditions, which refer directly or indirectly to the XXXX, the XXXXXX Owners Association, its property owners, or its past and present board members; 3. Communication by any means, including but not limited to, e-mail, letter, telephone, or in person with any member of the XXXXXXX Owners Association, its property owners, and its past and present board members which in any way alleges criminal conduct, civil wrongs, or mental or psychiatric conditions by any past or present board member of the XXXXXX Owners Association. 4. Because prohibition of future misconduct will not remedy the continuing harm which may result on the on-going publication on the internet or blogs of some of the defamatory statements identified by the Defendant, the following mandatory injunction shall also issue: Within 15 days of this Order, the Plaintiff shall contact the XXXXXXXXX, the XXXXXXXX, and any other internet website or blog on which she has posted contributions and shall request that all postings made by her which identify or name the XXXXXXXXX Owners Association, the names of its property owners, or the names of its past and present board members, be removed from said website or blog. Within 30 days of this Order, the Plaintiff shall file with the Court and provide copies to opposing counsel proof of compliance with this Order." So. The HOA CAN win. Free speech is one thing. What some homeowners file under that heading is something quite another. And some courts are recognizing it.

MikeS1

Posts:0

03/24/2008 11:31 AM
Harold, Again, you've missed my point. NO, I never said that there arn't volunteers with self-sevving motives, but none of that is at issue here and yes I've been on this site for wuite a while now,... enough to know you well. All I'm saying is that in my experience, I've seen the blogs where numerous, totally eroneous statements are made that are nothing short of liable and slander. They are typically made by beligerant, arrogant, ignornant members who don't have all the facts and tend to get most of the information 3rd hand or 4th hand, by pertuating rediculous rumors. Yes, Harold, I agee that there are always two sides to the coin, but I'm tired of listening to our HOA attorney who keeps saying "Let it go..." . "In the end.. the Truth will rise to the surface and the scondrells will be seen for what they are!". I'm just glad that one of two HOAs are finally standing up to the bullies. People should be totally accountable for what they said. Michele D - Great Posting - Thanks for the infomation.

BrianB
(California)

Posts:1742

03/24/2008 12:50 PM
Your rights to free speech cannot be impinged upon if you speak the truth. the truth is the ultimate defense against libel. As long as you stick to truth, facts, and stay away from name calling and innuendo, anything you print is likely to be protected. However, should you cross the line, and misrepresent a fact, and you could be liable for damages. All your constitutional rights are subject to interpretation under the Patriot Act, however.

JosephW
(Michigan)

Posts:764

03/24/2008 12:52 PM
The loser in the CO lawsuit continues to spew her venom but directs it at community associations as a group, and industry trad associations, rather than at her board members. The point of this isn't whether board members are being treated properly, but what happens when civility and control of adjectives disappears. You have a point to make, make the point, don't embellish with terms like "criminal" "condo-nazi's", "dictators", etc. It makes any possible resolution just that much harder. And as news of these cases make the rounds, they'll become more common. Joe

Joseph West Official HOATalk.com Sponsor Community Associations Network, LLC www.CommunityAssociations.net *See legal notice below (end of page) or go to www.hoatalk.com/legal

MikeS1

Posts:0

03/24/2008 1:36 PM
BrianB - Thanks for the comic relief - I can see that someone has a great sense of humor. Is Patriot Act an OxyMoron?

HaroldS
(Arizona)

Posts:904

03/24/2008 3:16 PM
"HOA Volunteers deserve to treated with respect and dignity." How did I miss your point? Seems pretty clear. There were no qualifiers. Oh well.

GeraldT4

Posts:932

03/24/2008 3:42 PM
Posted By HaroldS on 03/24/2008 3:16 PM "HOA Volunteers deserve to treated with respect and dignity." How did I miss your point? Seems pretty clear. There were no qualifiers. Oh well. HaroldS - You missed MikeS1's point because you quoted MikeS1 as follows, ""HOA Volunteers deserve to treated with respect and dignity."" Then you posted, "So all HOA Volunteers have pure ideals with no self serving aims?" Regardless as to what is perceived to be self serving aims of an HOA Volunteer, they deserve to be treated with respect and dignity because may truly feel what they are doing is in everyone's best interests. If you treat them with respect and dignity you may get a lot farther than treating them otherwise. Same goes for members on this site as well. : )

HaroldS
(Arizona)

Posts:904

03/24/2008 4:54 PM
Oh O.K. Respect and Dignity It Is.

DonN
(Michigan)

Posts:240

03/25/2008 7:24 AM
Joe. thanks for sharing the article about litigation over forums. I know of a similar lawsuit in Grand Blanc, Michigan, in which the board sued over a private blog (or maybe a forum) alleging that adverse comments upset the welfare and harmony of the owners association. It is clear from other posts concerning internet forums that contributors to HOA Talk have different views — perhaps very divergent views — on whether or not owners associations should offer internet forums for members to discuss issues. One of the concerns is that HOA might incur liability for the posts made by members. Another seems to be that board don't want any heat. The litigation described is consistent with what other courts have ruled — that the forum provider is not responsible for the content. Rather the contributors are responsible for what they write. The forum providers further insulate themselves by providing Terms of Service for use which contributors must accept before posting. A very good requirement to include in the Terms of Service is that the user agrees to not write anything that he/she is unwilling to state in a members' meeting after identification by name. No anonymous posts should be allowed. Forums offer the opportunity for members to sound off on what is bothering them. If no one provides any supporting posts, the member gets important feedback. If others provide support, the board gets important information. Board members should be responsible and accountable for what they do and say. But personal attacks are out of order as they are at a meeting.

Don Nordeen Governance of Property Owners Associations

JosephW
(Michigan)

Posts:764

03/25/2008 7:29 AM
Thanks Don, but I would amend the last sentence to "everyone should be responsible and accountable" not just board members. Joe

Joseph West Official HOATalk.com Sponsor Community Associations Network, LLC www.CommunityAssociations.net *See legal notice below (end of page) or go to www.hoatalk.com/legal

RobertG
(Arizona)

Posts:396

03/25/2008 7:29 AM
DonN, I think most of the examples given here are where the forums/websites are NOT sponsored by the association but are created by individual homeowners.

BrianB
(California)

Posts:1742

03/25/2008 8:27 AM
For those wishing to sponsor an open comment forum, one trend that shows some early promise among the newspapers and on line forums that allow it is to require real names with posts, no pseudonyms. So far, reports are that the discourse tends to be more civil than when anonymity rules. Just an idea if someone is reading this and thinking: How could our association do this without the minefield?

MikeS1

Posts:0

03/25/2008 8:56 AM
Brian, In response to your comments and Don's suggestion, I would think that the only way to totally avoid anonymity would be to have the Website host issue Secure Credentials (IDs and passwords) to each homeowner so that there's no question as to who the poster is. I really don't care to read postings fron individuals who remain anonymous. I've seen some of the larger HOAs use verified logon credentials and it seems to working OK.

JosephW
(Michigan)

Posts:764

03/25/2008 6:41 PM
Opinion Page Editorial from Dallas Morning News: Forget the war, global warming or the faltering economy. What really matters is the pernicious eyesore of an exposed swimming-pool pump. Some Frisco residents are taking a little too seriously the adage that all politics is local. They're going to court amid a frenzy of name-calling and finger-pointing over a homeowners association bid to enforce neighborhood-beautification rules. The way residents are talking, crucial free-speech, balance-of-power and property-rights issues are at stake. Rumor has it the Supreme Court is clearing its agenda in case it has to hear arguments. Hillary and Barack are preparing position papers. Wall Street is tense about the outcome, prompting talk about another Fed rate cut. For the good of the nation, we call on residents of the Frisco Fairways subdivision to come to their senses. Their 600-member homeowners association is suing three residents who allegedly got too personal in their online complaints about rules enforcement. Ethics of the association's volunteer leaders were questioned after they threatened a crackdown on anyone who failed to screen their air conditioners and pool equipment from public view. Residents leveled harsh and possibly ill-advised allegations about financial mismanagement. Words like "communistic" and "double standards" came into play in an online forum. The leaders took offense, and now a libel lawsuit is in progress. Not to pass judgment, but we wonder whether this matter might have been handled in a more restrained manner by all concerned. In an era when nasty, barbed remarks are hurled easily via the Internet, everyone must remember to keep the discussion civil. Libel is best avoided by sticking to the facts and editing out malicious gossip before posting comments to the Internet. Local leaders, whether volunteer or paid, should remember that criticism comes with the office. Politics isn't for the thin-skinned. Most of all, keep things in perspective. There really are worse things in life than an exposed air conditioner. And always remember the Golden Rule: Litigate unto your neighbor as you would have him litigate unto you. Joe

Joseph West Official HOATalk.com Sponsor Community Associations Network, LLC www.CommunityAssociations.net *See legal notice below (end of page) or go to www.hoatalk.com/legal

CharlesB10
(Texas)

Posts:4

07/22/2008 9:04 PM
Apologies for the late bump to this topic. I was the lead attorney for the defendants in Frisco. While its not appropriate to discuss this case in particular, I think that the suggestions to eliminate pseudonyms in forms will go a long way towards more candor and civility. The issue, however, is more complicated when the discussion moves to forums outside the HOA set up forum. The golden rule is always the best route. Charles W. Branham, III http://www.branhamlegal.com/news.php

CharlesB10
(Texas)

Posts:4

07/22/2008 9:11 PM
Apologies for the late bump to this topic. I was the lead attorney for the defendants in Frisco. While its not appropriate to discuss this case in particular, I think that the suggestions to eliminate pseudonyms in forms will go a long way towards more candor and civility. The issue, however, is more complicated when the discussion moves to forums outside the HOA set up forum. The golden rule is always the best route. Charles W. Branham, III http://www.branhamlegal.com/news.php

TonyM3
(Arizona)

Posts:131

07/22/2008 11:04 PM
From Charles' website The new board is considering creating an oversight committee for the board, and committees also will likely be set up to review the association's bylaws and rules. I have always thought that an hoa watchdog was a good idea.

GlenL
(Ohio)

Posts:1377

07/23/2008 1:17 AM
Tony as my mother used to say "Be careful what you wish for you just might get it." While this is something that might sound good anytime the government gets involved regulating things you are just trading one task master (the HOA) for another (the bureaucrat). Many States now have ombudsmen and from the posts on this site the problems that they have have not magically disappeared. And how would you pay for it because the government doesn't do anything out of the kindness of its heart? We could maybe follow Florida's example with their Condo Trust Fund where they charge condo owners and developers a nominal fee of $4.00 annually which is designated for programs to help educate condo owners and pay for enforcement of condo laws. They even have a surplus in the fund of 29 million dollars or I should say they did. Seems the politicians' decided to raid the fund to the tune of 10 million to make up for budget shortfalls elsewhere. (The Governor wanted to take 20 million but cooler heads prevailed.)

TonyM3
(Arizona)

Posts:131

07/23/2008 9:17 AM
I was thinking more of an internal watchdog committee as this hoa is doing. Although a group of volunteers who didn't serve at the pleasure of the board would be more beneficial.

BradP
(Kansas)

Posts:1742

07/23/2008 10:38 AM
I think you open a can of worms with a watchdog group unless there are some pretty stringent requirements. What happens if the group disagrees with the board and starts interfering with how they run the association, even if they are doing nothing wrong. All HOA's have a built in watchdog group, the owners, unfortunately most are too apathetic to do anything.

You are not authorized to post a reply.

Forums > Homeowner Association > HOA Discussions > New litigation over forums