HOA

$400,000 case pitting Olathe man, HOA needs more work, court rules

Olathe homeowner battles HOA over landscaping

Jim Hildenbrand is embroiled in a lawsuit over landscaping at his home at Avignon Villas in Olathe.
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Jim Hildenbrand is embroiled in a lawsuit over landscaping at his home at Avignon Villas in Olathe.

A four-year battle over a landscaping project in an Olathe homeowners association rages on after a state appellate court ruling raised more issues than it settled.

The Kansas Court of Appeals issued an opinion last week reversing the district court’s ruling in a lawsuit filed by homeowner Jim Hildenbrand and sending it back for resolution.

So on Wednesday, Hildenbrand and the Avignon Villa Homes Community Association were back in Johnson County District Court as their lawyers argued over what should happen next.

   

Hildenbrand wants to reopen the proceedings so he can gather more evidence to try to prove his argument that the HOA treated him differently than other homeowners whose requests on landscaping projects were approved.

“If we’re going to see how other residents have been treated, we need more discovery,” said Hildenbrand’s attorney, Eldon Shields.

But the HOA’s attorney, Lawrence Ferree III, said the case has dragged on long enough.

“This case has been litigated and relitigated, and we don’t need any more litigation,” he said.

The case is among many lawsuits involving HOAs and homeowners examined by The Kansas City Star, which published a series on homeowners associations in August. The Star’s series found that homes associations wield far more power than homeowners realize and that some actually torment the residents they’re supposed to support.

Hildenbrand said his case has already cost him more than $200,000 in legal fees, and the losing party could end up paying the legal bills for the other. With the HOA claiming more than $160,000 in expenses, a loss for Hildenbrand could ultimately cost him $400,000 or more.

The saga began in 2012, when Hildenbrand bought his house and fought the HOA for months over the placement of his satellite dish. The Avignon Villas subdivision comprises 153 homes near 118th and Greenwood streets in Olathe.

After he moved in, the HOA repeatedly fined him for parking cars in his driveway too long and for placing a ceramic flowerpot and a St. Francis statue in his front-yard landscaping.

In 2013, as Hildenbrand installed a major landscaping project that featured a long, low accent wall that ran the length of his house, the HOA ordered him to halt the work because it said he didn’t have approval. Hildenbrand contended that he did have approval. He sued, the HOA countersued, and the case went to trial in Johnson County District Court.

Hildenbrand lost that round, and the court ordered that the landscaping be removed. But in the ruling, the court noted that Hildenbrand’s full landscaping plan had not been submitted to the HOA’s Architectural Review Committee. So the court stayed its order.

Hildenbrand submitted the full plan and the committee rejected most of it, including the work that had already been done. Hildenbrand disputed the decision and the court heard more testimony, then ruled that the committee had acted in “good faith” in denying the plan. Hildenbrand appealed, and the Kansas Court of Appeals heard the case in July.

In its opinion last week, the appellate court said the district court applied an “incomplete test” in determining whether the HOA acted in good faith when it denied Hildenbrand’s landscaping plan. The district court now needs to decide whether the HOA had enforced its rules fairly in its denial, the appellate court said.

The appellate court left it up to the district court, in consultation with the attorneys for both sides, to decide how best to proceed.

On Wednesday, District Court Judge Gerald T. Elliott told Shields to file a motion by Nov. 11 explaining why more discovery was necessary and what discovery he was proposing.

“I’m not going to open up discovery just on the basis of your smile,” Elliott said.

During the hearing, attorneys for both sides expressed concern that the proceeding wasn’t being recorded.

Timing could become an issue. Elliott is retiring effective Jan. 9. He said he would like to wrap up the case before he leaves.

“Really and truly,” he said, “I think both sides would be better served by my bringing this to a conclusion.”

Judy L. Thomas: 816-234-4334, @judylthomas

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