May 10 2016
DA 15-0563 Case Number: DA 15-0563
IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 108N
BARBARA FINK,
Plaintiff and Appellant,
v.
MEADOW LAKE ESTATES HOMEOWNERS’ ASSOCIATION, MEADOW LAKE ESTATES HOMEOWNERS’ ASSOCIATION GOVERNING BOARD and WAYNE KELLY, an individual,
Defendants and Appellees.
APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV 14-423 Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Barbara Fink, self-represented, Hamilton, Montana
For Appellee:
Martin S. King, Worden Thane P.C., Missoula, Montana
Submitted on Briefs: March 16, 2016
Decided: May 10, 2016
Filed:
__________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Appellant Barbara Fink (Fink), pro se, appeals from two orders entered by the
Twenty-First Judicial District Court, Ravalli County, one granting summary judgment to
the Defendants/Appellees (the Board), and the other awarding attorney fees to the Board.
We affirm.
¶3 This case involves a residential development known as Meadow Lake Estates,
located in Hamilton. The lots within the Meadow Lake Estates are subject to the
Meadow Lake Estates Deed of Restriction (the Covenants). Pursuant to the Covenants,
the Meadow Lake Estates Homeowners’ Association (HOA) was created, and all lot
owners are members of the organization. The Covenants provide for a governing board
of five members of the HOA to “prescribe rules and regulations” regarding the use and
maintenance of the Meadow Lake Estates. Wayne Kelly, the individually named
Defendant, sat on the Board for a period of time during which Fink alleges injury. Since
2003, the HOA has collected a $175 annual assessment on a flat per-lot basis to be used
for road maintenance and other expenses associated with the development.
2 ¶4 In 2001, Fink purchased Lot 24 in the Meadow Lake Estates. In 2007, Fink
subdivided Lot 24 into two separate parcels, and in 2009 returned the two parcels back to
their original configuration. In 2010, Fink again subdivided her lot into two separate
parcels, identifying them as Parcels 24-A-1 and 24-B-1. After doing so, Fink transferred
Parcel 24-A-1 to her father. Then, Fink’s interest in Parcel 24-B-1, including her
residence, was foreclosed upon and sold in 2012. In October 2013, Fink obtained a 1%
interest in Parcel 24-A-1, with her father retaining a 99% interest in the property.
¶5 Fink initiated this action, alleging numerous claims against the Board, which the
District Court summarized as follows: 1) failure to enforce easements per the Covenants;
2) failure to assess and collect road maintenance fees per the Covenants; 3) failure to
maintain community roads per the Covenants; 4) failure to follow the Covenants’ voting
procedures and fractionalization of member votes; 5) failure to follow corporate
procedures as required by Montana law; 6) failure to allow inspection of records;
7) failure to maintain accurate financial records regarding income and expenditures;
8) failure to provide required financial information to HOA members; 9) failure to
disclose to HOA members the details of a settlement of a legal action in which HOA was
a party; 10) failure to file annual state and federal tax returns; 11) defamatory statements
made about Fink; and 12) violations of the Montana Consumer Protection Act. After
some discovery, the Board moved for summary judgment. After a hearing, the District
Court granted the Board’s motion for summary judgment and the Board’s motion for an
award of costs and attorney fees. In awarding fees, the District Court found Fink’s 3 “briefing and multitude of unsupported claims frivolous and meritless[,]” and determined
that the Board was entitled to fees as a prevailing party under the Montana Consumer
Protection Act. The District Court also held that the Board was entitled to fees because
Fink had “unreasonably and vexatiously multiplied the proceedings by unsupported,
contradictory claims[,]” and by her briefing, which exceeded the limits provided for in
local rules.
¶6 We review the District Court’s granting of summary judgment de novo. See
Grassy Mt. Ranch Owners’ Ass’n v. Gagnon, 2004 MT 245, ¶ 7, 323 Mont. 19, 98 P.3d
307.
¶7 Fink argues that summary judgment was improper because genuine issues of
material fact existed, referencing the Board’s misconduct, lack of performance, and
failure to adhere to the Covenants. However, the facts underlying these issues, including
the provisions of the Covenants and subsequent amendments, were not in dispute, and we
see no material factual issues remaining, rather only questions of interpretation of the
Covenants. “Restrictive covenants are construed under the same rules of construction as
other contracts: courts read declarations of covenants on their four corners as a whole,
and terms are construed in their ordinary or popular sense.” Bordas v. Va. City Ranches
Ass’n, 2004 MT 342, ¶ 24, 324 Mont. 263, 102 P.3d 1219 (citing Windemere
Homeowners Ass’n, Inc. v. McCue, 1999 MT 292, ¶ 13, 297 Mont. 77, 990 P.2d 769).
¶8 Fink’s argument that the District Court failed to address her numerous other
claims regarding the HOA’s practices is unavailing. While the District Court did not 4 provide a detailed discussion, the order mentions the wording of the Covenants. We
conclude the District Court correctly determined that the Board’s practices, despite Fink’s
disagreement with them, are permissible under the broad authority granted by the
Covenants, entitling the Board to summary judgment on 1-4 of Fink’s claims.
¶9 The District Court also concluded that many of Fink’s “claims [under the
Covenants] are barred by the tort and contract statute of limitations[,]” citing §§ 27-2-
202(1), and 27-2-204, MCA. Section 27-2-202(1), MCA, reads in pertinent part: “The
period prescribed for the commencement of an action upon any contract, obligation, or
liability founded upon an instrument in writing is within 8 years.” The District Court
reasoned that, since 2003, Fink had been aware of the flat rate assessment, and had made
numerous vocal challenges regarding the assessment, the HOA’s legal status, the Board’s
authority, the procedures it employed to administer the Covenants, the Board’s decisions
regarding road maintenance and use of the roads, and voting procedures since that time.
Despite making numerous informal complaints during this period, Fink had failed to
bring legal claims against the HOA until now. Fink argues that the HOA’s flat rate
methodology did not harm her until 2013, “when the assessment began to exceed what
she would owe pro rata,” but she does not provide evidence demonstrating how the flat
rate assessment is calculated in a manner that is financially injurious. The District Court
properly concluded that, without greater specificity in Fink’s pleadings, several of her
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May 10 2016
DA 15-0563 Case Number: DA 15-0563
IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 108N
BARBARA FINK,
Plaintiff and Appellant,
v.
MEADOW LAKE ESTATES HOMEOWNERS’ ASSOCIATION, MEADOW LAKE ESTATES HOMEOWNERS’ ASSOCIATION GOVERNING BOARD and WAYNE KELLY, an individual,
Defendants and Appellees.
APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV 14-423 Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Barbara Fink, self-represented, Hamilton, Montana
For Appellee:
Martin S. King, Worden Thane P.C., Missoula, Montana
Submitted on Briefs: March 16, 2016
Decided: May 10, 2016
Filed:
__________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Appellant Barbara Fink (Fink), pro se, appeals from two orders entered by the
Twenty-First Judicial District Court, Ravalli County, one granting summary judgment to
the Defendants/Appellees (the Board), and the other awarding attorney fees to the Board.
We affirm.
¶3 This case involves a residential development known as Meadow Lake Estates,
located in Hamilton. The lots within the Meadow Lake Estates are subject to the
Meadow Lake Estates Deed of Restriction (the Covenants). Pursuant to the Covenants,
the Meadow Lake Estates Homeowners’ Association (HOA) was created, and all lot
owners are members of the organization. The Covenants provide for a governing board
of five members of the HOA to “prescribe rules and regulations” regarding the use and
maintenance of the Meadow Lake Estates. Wayne Kelly, the individually named
Defendant, sat on the Board for a period of time during which Fink alleges injury. Since
2003, the HOA has collected a $175 annual assessment on a flat per-lot basis to be used
for road maintenance and other expenses associated with the development.
2 ¶4 In 2001, Fink purchased Lot 24 in the Meadow Lake Estates. In 2007, Fink
subdivided Lot 24 into two separate parcels, and in 2009 returned the two parcels back to
their original configuration. In 2010, Fink again subdivided her lot into two separate
parcels, identifying them as Parcels 24-A-1 and 24-B-1. After doing so, Fink transferred
Parcel 24-A-1 to her father. Then, Fink’s interest in Parcel 24-B-1, including her
residence, was foreclosed upon and sold in 2012. In October 2013, Fink obtained a 1%
interest in Parcel 24-A-1, with her father retaining a 99% interest in the property.
¶5 Fink initiated this action, alleging numerous claims against the Board, which the
District Court summarized as follows: 1) failure to enforce easements per the Covenants;
2) failure to assess and collect road maintenance fees per the Covenants; 3) failure to
maintain community roads per the Covenants; 4) failure to follow the Covenants’ voting
procedures and fractionalization of member votes; 5) failure to follow corporate
procedures as required by Montana law; 6) failure to allow inspection of records;
7) failure to maintain accurate financial records regarding income and expenditures;
8) failure to provide required financial information to HOA members; 9) failure to
disclose to HOA members the details of a settlement of a legal action in which HOA was
a party; 10) failure to file annual state and federal tax returns; 11) defamatory statements
made about Fink; and 12) violations of the Montana Consumer Protection Act. After
some discovery, the Board moved for summary judgment. After a hearing, the District
Court granted the Board’s motion for summary judgment and the Board’s motion for an
award of costs and attorney fees. In awarding fees, the District Court found Fink’s 3 “briefing and multitude of unsupported claims frivolous and meritless[,]” and determined
that the Board was entitled to fees as a prevailing party under the Montana Consumer
Protection Act. The District Court also held that the Board was entitled to fees because
Fink had “unreasonably and vexatiously multiplied the proceedings by unsupported,
contradictory claims[,]” and by her briefing, which exceeded the limits provided for in
local rules.
¶6 We review the District Court’s granting of summary judgment de novo. See
Grassy Mt. Ranch Owners’ Ass’n v. Gagnon, 2004 MT 245, ¶ 7, 323 Mont. 19, 98 P.3d
307.
¶7 Fink argues that summary judgment was improper because genuine issues of
material fact existed, referencing the Board’s misconduct, lack of performance, and
failure to adhere to the Covenants. However, the facts underlying these issues, including
the provisions of the Covenants and subsequent amendments, were not in dispute, and we
see no material factual issues remaining, rather only questions of interpretation of the
Covenants. “Restrictive covenants are construed under the same rules of construction as
other contracts: courts read declarations of covenants on their four corners as a whole,
and terms are construed in their ordinary or popular sense.” Bordas v. Va. City Ranches
Ass’n, 2004 MT 342, ¶ 24, 324 Mont. 263, 102 P.3d 1219 (citing Windemere
Homeowners Ass’n, Inc. v. McCue, 1999 MT 292, ¶ 13, 297 Mont. 77, 990 P.2d 769).
¶8 Fink’s argument that the District Court failed to address her numerous other
claims regarding the HOA’s practices is unavailing. While the District Court did not 4 provide a detailed discussion, the order mentions the wording of the Covenants. We
conclude the District Court correctly determined that the Board’s practices, despite Fink’s
disagreement with them, are permissible under the broad authority granted by the
Covenants, entitling the Board to summary judgment on 1-4 of Fink’s claims.
¶9 The District Court also concluded that many of Fink’s “claims [under the
Covenants] are barred by the tort and contract statute of limitations[,]” citing §§ 27-2-
202(1), and 27-2-204, MCA. Section 27-2-202(1), MCA, reads in pertinent part: “The
period prescribed for the commencement of an action upon any contract, obligation, or
liability founded upon an instrument in writing is within 8 years.” The District Court
reasoned that, since 2003, Fink had been aware of the flat rate assessment, and had made
numerous vocal challenges regarding the assessment, the HOA’s legal status, the Board’s
authority, the procedures it employed to administer the Covenants, the Board’s decisions
regarding road maintenance and use of the roads, and voting procedures since that time.
Despite making numerous informal complaints during this period, Fink had failed to
bring legal claims against the HOA until now. Fink argues that the HOA’s flat rate
methodology did not harm her until 2013, “when the assessment began to exceed what
she would owe pro rata,” but she does not provide evidence demonstrating how the flat
rate assessment is calculated in a manner that is financially injurious. The District Court
properly concluded that, without greater specificity in Fink’s pleadings, several of her
claims regarding the enforcement of the Covenants are necessarily barred by the statute
of limitations. 5 ¶10 Fink argues that the District Court erred by dismissing her claims related to
HOA’s failure to meet non-profit corporate requirements. Section 35-2-214(1), MCA,
provides that “the corporate existence begins when the articles of incorporation are filed
by the secretary of state.” The HOA has never filed such documentation, and as such, is
not a corporation. Fink argues that the HOA should be subject to corporate standards
because it has held itself out to be a nonprofit, but we do not find this bare assertion
persuasive. The HOA operates on a nonprofit basis but remains an unincorporated
association, and the District Court correctly concluded that Fink “failed to create a
genuine issue of material fact that the . . . HOA is a corporation and could have violated
rules relating to nonprofit corporations.”
¶11 Fink argues that the District Court improperly granted summary judgment to the
Board on her defamation claim. Fink video recorded a 2013 HOA meeting without
asking permission of those present, an action that spurred a complaint to the Hamilton
City Police Department, which investigated and sent a letter to Fink, Defendant/Appellee
Wayne Kelly, and two other Board members on September 5, 2013. The letter stated that
“[i]t is the determination of this office that there is insufficient probable cause to charge
the offense of privacy in communications under [§] 45-8-213[, MCA,]” and indicated the
Department would not pursue that matter further. The letter also stated that “[a]ny party
who still feels aggrieved by the conduct . . . retains the right to . . . initiate a private civil
lawsuit if they wish to pursue non-criminal legal remedies[,]” and noted “[t]he video
surrendered to law enforcement as possible evidence or contraband is currently retained 6 in the custody of our office.” In support of her claim, Fink points to a set of minutes that
the Board mailed to HOA members on September 26, 2013, which reported:
After the meeting was adjourned and members were halfway out the door[,] it was announced that Ms. Fink had illegally videotaped the meeting without anyone’s permission. The Police Department has been notified and Ms. Fink has been visited by the Police and handed over the illegal tape. An investigation into this illegal act is ongoing.
Fink argues that, because the Board had received the letter from the Police Department
declining to prosecute by the time the minutes of the meeting were circulated, the uses of
the term “illegal” in the minutes are libelous because they imply she performed a criminal
act and “are considered libel ‘per se’ because they falsely state Barbara Fink committed a
crime.”
¶12 “Libel is a false and unprivileged publication by writing, . . . that exposes any
person to hatred, contempt, ridicule, or obloquy or causes a person to be shunned or
avoided or that has a tendency to injure a person in the person’s occupation.” Section
27-1-802, MCA. In order for defamatory words to be actionable, they “must be of such
nature that the court can presume as a matter of law that they will tend to disgrace and
degrade [the plaintiff] or cause him to be shunned and avoided. It is not sufficient,
standing alone, that the language is unpleasant and annoys or irks him, and subjects him
to jests or banter, so as to affect his feelings.” McConkey v. Flathead Elec. Coop., 2005
MT 334, ¶ 45, 330 Mont. 48, 125 P.3d 1121 (brackets in original) (citing Wainman v.
Bowler, 176 Mont. 91, 96, 576 P.2d 268, 271 (1978)).
7 ¶13 The published statements accused Fink of acting “illegally,” but did not state she
had committed a crime, upon which she premises her claim. The Police Department’s
letter informed the Board of the possibility of a civil liability suit as a form of redress for
the incident, and the Board may have interpreted Fink’s actions as “illegal” on that basis.
The statements did not necessarily imply Fink was committing a crime and, without
more, are insufficient to support her libel claim. We conclude the District Court did not
err in granting summary judgment on Fink’s 11th claim, defamation.
¶14 Fink argues that the District Court erred by concluding that “Defendants have not
conducted any consumer transactions with Plaintiff, rendering her claim under the
Consumer Protection Act meritless.” The Montana Consumer Protection Act prohibits
“[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct
of any trade or commerce . . . .” Section 30-14-103, MCA. The Act defines a
“consumer” as “a person who purchases or leases goods, services, real property, or
information primarily for personal, family, or household purposes.” Section 30-14-
102(1), MCA. In her Complaint, Fink alleged that she “and other similarly situated HOA
members purchased lots for personal, consumer-related purposes.” However, the District
Court properly concluded that Fink had failed to establish that the HOA had conducted
any consumer transaction with Fink in relation to purchasing her lot. While Fink argues
on appeal that she also purchases “road maintenance” services from the HOA, she failed
to raise this claim in the District Court, and we decline to address the new issue on
appeal. The District Court did not err in granting summary judgment against Fink’s 8 claim under the Montana Consumer Protection Act, as she was not a “consumer” in
relation to the HOA when purchasing her lot.
¶15 Finally, Fink argues the District Court erred by granting attorney fees to the
Board. “This Court reviews for correctness a district court’s conclusion regarding the
existence of legal authority to award attorney fees. If legal authority exists, we review
for an abuse of discretion a district court’s order granting or denying attorney fees.” City
of Helena v. Svee, 2014 MT 311, ¶ 7, 377 Mont. 158, 339 P.3d 32 (citations omitted).
The District Court found that the Board was entitled to attorney fees under § 30-14-
133(3), MCA, for defending a claim under the Montana Consumer Protection Act, and
under § 37-61-421, MCA, as a sanction for multiplying the proceedings in an
unreasonable or vexatious manner. The District Court cited to Fink’s “unsupported,
contradictory claims and filings” as reason for awarding attorney fees and costs, and
reasoned that the HOA had hired an attorney in 2003 to address issues that Fink raised
then, noting that “most [of the same issues] are the complaints currently before the
Court.” We find no error of law or abuse of discretion in the District Court’s order
awarding attorney fees. See Tripp v. Jeld-Wen, Inc., 2005 MT 121, ¶ 37, 327 Mont. 146,
112 P.3d 1018 (“When faced with a successful defendant, a district court should only
award attorney fees [under the Act] ‘upon a finding that the plaintiff’s action was
frivolous, unreasonable, or without foundation, even though not brought in subjective bad
faith.’”) (citation omitted).
9 ¶16 The Board additionally requests attorney fees and costs for the appeal, citing the
Covenants, which would allow a prevailing party to recover attorney fees and costs in an
action to enforce them. However, the Board requested attorney fees in its Answer and
Counterclaim based on Fink being a vexatious litigant, and pursuant to the Montana
Consumer Protection Act in their motion for summary judgment. The District Court, in
its Opinion and Order, cited to statutory criteria for awarding attorney fees and did not
award them based on the Covenants. Although the language of the Covenants may
entitle the Board to attorney fees, this was not the basis on which the Board sought
attorney fees, nor the basis upon which they were granted by the District Court. In this
circumstance, we have determined to affirm the District Court’s Order Granting
Attorney’s Fees and Costs, but to decline to award fees and costs for this appeal.
¶17 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. The District
Court’s interpretation and application of the law were correct, and it did not abuse its
discretion in any discretionary ruling.
¶18 Affirmed.
/S/ JIM RICE
We concur:
/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ BETH BAKER 10