As legal costs soar toward $1 million, a years-long court battle over a landscaping project in an Olathe HOA is headed to the Kansas Court of Appeals.
The board of the Avignon Villa Homes Community Association has filed notice in Johnson County District Court that it is appealing a ruling issued in January by Johnson County District Judge Rhonda K. Mason.
Many assumed the ruling would settle once and for all the lawsuit that homeowner Jim Hildenbrand filed against the Avignon Villa Homes Community Association in 2013.
Mason found that the HOA treated Hildenbrand unfairly when it denied his application for the landscaping project. But she also found that Hildenbrand violated the HOA’s rules by failing to fill out the proper application before installing the project, which features a long, low accent wall running the length of his house. So the judge ordered Hildenbrand to pay $25,000 in damages to the HOA.
“The board believes it is important to maintain the viability of our governing documents and to protect our association from future unauthorized construction,” said HOA president Jesse Hernandez. “Therefore the board has decided that the association will appeal Judge Mason’s ruling.”
Hernandez said Avignon offered to try to settle with Hildenbrand earlier this month.
“We asked him to pretty much abide by the rules, regulations and policies, and he did not accept that. He categorically denied item by item,” Hernandez said.
But Hildenbrand said the HOA’s proposal was hardly a compromise. Among its demands were that Hildenbrand agree not to take any legal action against the HOA in the event of future landscaping disapprovals and that he agree to reimburse the HOA for all legal fees involved in enforcing the settlement agreement. The HOA also wanted Hildenbrand to agree “not to disparage the HOA or contact or comment to the media regarding the terms of the settlement.”
Hildenbrand said that amounted to a gag order.
“It’s very interesting how they demand that I not disparage the HOA or board members, yet they go around and badmouth others every day,” he said.
Hildenbrand said his landscaping project “improved my property value and improved curb appeal and beauty to the neighborhood.” He said he would not cave in to the HOA’s “hardball tactics.”
“Isn’t this what it’s all about?” he said. “Principles and protecting our constitutional rights? I do want an HOA, where I don’t have broken down cars, boats, and campers sitting around. That’s all reasonable, that you keep up the neighborhood. But this is no longer reasonable. This is about total control and people who are not anywhere close to being qualified to run any type of financial business matters.”
As the battle rages, the legal expenses for both sides continue to mount. In her January ruling, Mason denied both sides’ requests that attorneys’ fees be paid by the opposing party. Instead, she ordered Hildenbrand and Avignon to pay their own legal fees. That means Avignon residents — including Hildenbrand himself — would be responsible for the HOA’s bill.
Hildenbrand said his legal expenses now total in the hundreds of thousands of dollars. Hernandez would not say what the lawsuit had cost the HOA.
But budget documents posted on Avignon’s online site show the HOA has paid nearly $365,000 in legal fees since 2013 and has budgeted another $35,000 for 2019. And HOA board minutes from January 2017 say the HOA’s insurance company reimbursed it nearly $85,000 for legal fees. The records don’t specify what those fees were for, but no other major legal issues besides Hildenbrand’s lawsuit are mentioned in board documents in recent years.
News of the appeal angered some homeowners.
“It’s crazy,” said Melvin Woods, referring to the legal expenses incurred by the HOA. “I told somebody the other day, if they’d have just taken that money and divided it up amongst the members, we all could be debating this on a cruise somewhere.”
Homeowner Connie Morris, who has tangled with the HOA over landscaping issues, said its handling of the lawsuit has convinced her to run for the board in next month’s election.
“The thing that really strikes me about this association is that they have the sole power to spend our money without any vote from the community,” Morris said. “They haven’t told us how much money they have spent totally in this lawsuit, and they blame Jim for filing the suit. But they filed a counter-suit, and that’s how this whole thing developed.”
Morris said the board’s stubbornness is hurting homeowners.
“Jim’s landscaping is beautiful,” she said. “This is just vindictiveness. They didn’t win, so now they’re going to spend more money. And we could have used that money for the beautifying of our community.”
Hernandez said the board has received both positive and negative feedback from homeowners.
“Some people want it done with because it’s taken so long,” he said, “and some are in agreement on how can he continue to not want to abide by the rules?”
Hernandez told The Star that one sticking point in the attempt to settle the case was that Hildenbrand wanted the board to drop the $25,000 fine that the judge ordered him to pay.
“We said we wanted to keep the fine as the court ordered, and we agreed with the other items — that both sides pay their costs and he keeps the wall — and then we wrote some other requirements,” he said. “And he categorically denied item by item.”
But Hildenbrand’s attorney, Eldon Shields, said the HOA’s additional demands were ridiculous.
“Their response essentially included five extra conditions,” Shields said. “One was, ‘Never sue us regardless of what we ever do to you again, and always pay our attorneys’ fees going forward.’ Nobody would ever have agreed to those extra conditions.”
The Avignon saga began in 2012, when Hildenbrand bought his house then sued the HOA to recover the legal costs involved in fighting the association over placement of his satellite dish. The Federal Communications Commission told Avignon that dictating satellite dish placement was a violation of federal law. The Avignon Villas subdivision comprises 153 homes near 118th and Greenwood streets in Olathe.
After Hildenbrand moved in, the HOA issued repeated citations for parking his cars in the driveway too long and placing a ceramic flower pot and a St. Francis statue in his front-yard landscaping. Then in 2013, as he installed the landscaping project, the HOA ordered him to halt it, saying he didn’t have approval. Hildenbrand contended that he did have approval. The HOA counter-sued, and the case went to trial in Johnson County District Court.
Hildenbrand lost that round, but the case has been back and forth through the courts ever since, including the Kansas Court of Appeals. In her Jan. 31 ruling, Mason said that Hildenbrand’s landscaping project did not damage the subdivision in any way. She also said email exchanges among HOA officials made it clear they thought Hildenbrand would refuse to give in no matter what they did so they should just “toe the hard line” in dealing with him.
The judge also noted that other violations throughout the subdivision had been allowed to continue, including those of board president Hernandez and former board president Kevin Drake.
The HOA refused to accept the judge’s decision, filing a motion for her to alter or amend it. Hildenbrand filed a motion asking the judge to dismiss the $25,000 fine. Last month, Mason denied both. And back to appellate court it goes.