Mr. Flanary was given the opportunity to ask a question of the Board of Directors Candidates. He chose me. He decided to preempt his question with a Gish Gallop. Some may not be familiar with the term, but it is a deliberate technique both used and forbidden in debate when there is a time-limit on response. The goal is to say as many falsehoods and/or half-truths prior to or as part of or the basis of the question, that it is impossible for the receiver to respond to all of them in the allotted time.
I called it out, and asked for more time, but the Board, for some reason, seemed to think that there’s any basis for a 2-minute time limit. Or, I should say Trademark, who actually had their hands on the button to cut my mic mid-sentence.
Now, Mr. Flanary led with declarations about the litigation that were partially fact (Yes, one of the MANY reliefs requested of the Larimer County District Court was damages of $750,000. I’ll address that directly, in a succinct manner: If Mr. Flanary or anyone else from his POA (Poudre Overlook Advocates or Associates – they seem to alternate at times) wishes to threaten another homeowner with suggestions, implications, or outright explicit demands to move from the neighborhood and follow through on it, according to research I have done, and the attorneys that I consulted and/or used, there is precedent for the HOA to be responsible for providing safe housing for those that feel threatened by their neighbors – and the HOA will not intervene at all. Check the value of our homes, and suddenly the concept is not exactly outrageous, or as Mr. Flanary put it, frivolous.
But, if Mr. Flanary had actually read the Amended Complaint, which is the only active complaint the court considered, there was no demand for monetary damages in that amount. And, that means the next half-truth, that the Court dismissed the case for that ask being “frivolous” is also untrue. In fact, the Court, when ruling upon awarding legal fees stated clearly that my claim was brought in “good faith”.
That then undermines one of his final points, that the Settlement in the amount of $10,000 attorneys fees was paid by me personally, in more ways than one. Not only did the court not award any amount, it would take quite a few words to accurately explain why the amount was offered by my former attorney – a very unusual situation for anyone with legal knowledge or experience.
As a result of that technical error, the case kind of bifurcated. It was a Triangular, not a Binary Case. And, it’s open public record with Ms. Hutchinson giving copies to whomever asked. It became unusual when I filed a Pro Se Response to the Motion for Attorneys Fees separate from my former attorney, who was then represented by other attorneys and his insurance company (to add more levels of complexity). In essence, I got caught in a crossfire between two insurance companies – with a good faith claim that had options that came with significant expenses, or the prospect if doing pro se on my own time.
The problem was that the Court determined, without a hearing, that my case was filed 3 days too late for the 1-year statute of limitations. Instead of filing on May 28, 2020, I filed on June 1, 2020. The reason I filed on that date was that it was the earliest possible date I was aware that Mr. Hammond had threatened me with arrest for “criminal harassment”, which he claimed was a misdemeanor. It was also the date I memorialized what he said in an email (the actual document for which there was a record of a claim accruing), which also included drawing the boundary for him, because he was unaware, that a false accusation of a crime is called “per se defamation” in the State of Colorado.
The argument made by POHOA and Mr. Hammond in Court was that an email sent by Mr. Hammond on 5/28/2019, which was in response to another Board Member’s resignation, used the word “harassment”. Therefore, the Defendants argued that the case must accrue from that date.
One problem is that I had not seen that email until June 1, after being verbally assaulted by another homeowner earlier in the day, who was the spouse of yet a different Board member. At a volunteer planting day, of all things. But, I have already put my reputation on the line as that account being the whole truth and nothing but the truth.
That wasn’t persuasive with the court. The Judge decided that I had an obligation, as a volunteer board member, to have read Mr. Hammond’s email on 5/28/19 under the “knew or should have known” line of legal logic.
This, however, needed a rebuttal because Mr. Hammond had actually disclaimed that he had accused me of harassment at all in that email. He said that on June 4, 2019 – well within the statute of limitations. He also said that he had gone to the District Attorney to discuss having me arrested, and that all he needed to do was call the Larimer County Sheriffs to physically arrest me.
Is this he-said, he-said?
No. Because I have a recording of the conversation on 6/4/19. After Mr. Hammond demanded to know whether or not I was recording him on 6/1/19, I told him I was not (and did not). But, I also told him from that moment going forward, I no longer trusted him, or any of those that were involved in trying to cover up the actions that eventually led to their collective removal on 8/27/19 – a validation of my original formal complaint about non-compliance.
If I had a recording, then why didn’t the court decide the other way?
Here’s what I know. I gave my attorney the recording, and I know that it was discussed with the Defendants Attorneys. I intended for it to be an up-front Exhibit in the case, but my former attorney told me that it would be held in rebuttal to see if they would lie to the court. It does not make sense to me that Mr. Hammond or POHOA would attempt to deceive the court knowing that the recording existed.
The problem was, that rebuttal was disallowed because, the case was amended, and that is where the technical error came into play. The amended complaint received a Response from Defendants. The Plaintiff, of course, gets to Reply to that Response. In that Response, an error was made – instead of restating all of the points in the original Response to the Motion to Dismiss, it was referenced instead, and the original document was not listed as an Exhibit. As a result, the Court decided that the first Response, which is what raised these points above, could not be “seen” by the Court – even though it was right there on the Docket.
Womp, womp.
You all knew that was a rule, right?
Well, since there is a thing called a Surreply, which is the final rebuttal of the Plaintiff, it would seem that all we would have to do is file that recording with the court (actually, a transcript + the recording), but the Court would not allow it because . . . my former attorney was already in hot water over Rule 11.
This was one of the basis of the Appeal. There was no hearing to determine facts. I would hope that this would strike some of you as unfair and questionable justice.
But, that’s how court goes sometimes. And, that is why they build these other buildings to house Appeals Courts. If there’s an error, it can be undone. For obscene amounts of money, or ,if you are not endowed, you can do this Pro Se.
So, there we were in October of 2020 with a granted Motion to Dismiss. And, we did the logical thing: Asked Defendants for a conference to settle. After all, the actual primary relief granted was to achieve two things – that the Court issue injunctive relief to stop the persistent stalking behind our house using the drainage ditch to bother my wife and I in our own backyard when we were trying to work on our garden or landscaping, or just enjoy what had been more than a decade of truly quiet peace. We also wanted the court to stop the constant microaggressions occurring at Board and Committee Meetings – which leads right back to Mr. Flanary’s behavior at the 12/1/21 Homeowners Annual Meeting when he did this Gish Gallop leading to a question that had literally no other purpose than to cast doubt on my character. Otherwise known as a microinsult.
But, the Board had told the Defendants Attorneys not to settle, pretty much at all. In fact, during the September 2020 Board Meeting, again, Mr. Flanary (and his wife) both advocated going after legal fees implying punishment, repeating the declaration that the case was “frivolous”. If you say it enough times, it’s true, right?
There’s a problem with an HOA ever taking action on the basis or intent to punish members. Fines and other financial penalities are to encourage compliance, not to punish – and this is an often-made mistake in how volunteer board members should use that tool. In fact, once again, Mr. Flanary, throughout 2018 would speak of fines as punishment in enforcement actions by the Board, which again, were part of the original basis of complaint leading to the retaliation by Mr. Hammond that was the basis for one of the complaints in the suit.
Remember, I only have 2 minutes to respond – try reading from the top to this point in under 2 minutes.
So, moving forward to the Motion for Attorneys Fees, once my former attorney bifurcated, it became somewhat unusual for the court to consider. I was making a motion to move to Pro Se, so that I could raise the issues of essentially a fraud upon the court by Defendants, and my former attorney was more concerned about both whether he would be liable for legal fees, and actual sanctions against his status with the Colorado Bar. It’s kind of a serious matter.
But, the Court recognized what was going on. And, once freed from my former Attorney properly, I hired Robinson & Henry, again, for the primary purpose of settling the case. Again, the Board directed the Insurance Company Attorneys to not settle. The messages I kept getting were that they sought to punish me – and whether that was right or wrong wasn’t actually of interest to the Court – literally a separate legal matter.
However, concurrent with all of this, I had brought the amended claim regarding FHA law as a civil rights complaint within the State of Colorado’s office, CCRD. That action started at the same time as the amended complaint, and according to HUD, these can be done concurrently. I know jurisdictional issues may not be easy to understand to the less-experienced, but even the attorneys found this confusing – because there is also concurrent jurisdiction via HUD directly, which is then an administrative action. And, the statute of limitations on that claim is different than the Pro Se Defamation claim – 2 years vs. 1 year.
The Court made its ruling. While it awarded legal fees to the Defendants, at this stage, no amount is assigned – because the Defendants have to submit for that amount with some basis. What was truly unusual about the ruling were two things – my former attorney was held liable and could face sanctions; but, the court LIMITED legal fees to the filing of ONE SINGLE MOTION. Not ALL the fees for the ENTIRE case. We were concerned that if it were the latter, they would try to punish me/us in amounts upwards of $80-100k.
So, what the court did was say that the amended complaint, which had a technical error, had cost the Defendants some time that they should receive reimbursement. Our estimate: $1600. Obviously no where near their TOTAL costs, but also not the severe punishment they were seeking either.
Again, we offered to settle.
But, a new problem was going on concurrently with the CCRD case. POHOA was the only party in that case because it focused on actions after Mr. Hammond had been removed from the Board of Directions. However, curiously, Ms. Hutchinson, who was the Chair of the Litigation Committee, had decided to submit hundreds of pages of emails and 6 sworn affidavits that the thought were not public information, and that I would never see. But, they landed in my lap in the middle of the consideration in the Larimer County District Court on the Motion for Legal Fees.
What was in this tranche of exhibits?
Complete legal ignorance and negligence. Amount the documents were emails between not only the POHOA Board and Mr. Dauster, the HOA General Counsel, but also emails with administrators for the Insurance Company AND the Attorneys hired by the Insurance company – destroying privilege. On top of that were dozens of intra-board emails that revealed what was really going on – retaliation/revenge led by Ms. Hutchinson in defense of . . . her personal friend and neighbor who Mr. Hammond originally accused me of harassment.
But, more legally important was the fact that now there was written evidence that the POHOA Board was refusing to perform impartial fact-finding on a good-faith formal complaint, which is not only non-compliant with the governing documents, but also CCIOA.
The Court had all of this revelatory information in considering the Motion for Attorneys Fees, as well as evidence I had provided about intent to punish, which included Mr. Flanary’s statements (backed by recorded audio) seeking to have legal fees awarded.
But wait, there’s more. They submitted sworn statements to a state investigator that had material and relevant information that was false. It was astounding that the Board, which had access to copies of the recorded meeting on 6/13/19 would submit information so completely contradicting an objective record, that it calls into question basic competence. Either this is bravado about never being caught or some sort of privileged above-the-law thinking, or an incredible example of complete ignorance that these actions could come with significant consequences described on sites like this at this URL: https://www.shouselaw.com/co/defense/laws/perjury/
So, you’d think this would be a great time to settle.
Again, in spite of Mr. Flanary’s claim trying to make this all about a $750k money-grab that was “frivolous”, that amount wasn’t in the case that was decided – at all. And, all of these settlement offers made between October and March asked for exactly $0. All I asked for were things that would allow us to enjoy our home, including our back yard, in peace – particularly from Mr. Flanary.
Now, to be fair, Defendants did counteroffer that we could put up a 5-foot fence between us and the drainage ditch, which would shade out our veggie garden. We didn’t ask for that, and never wanted this. No idea why that was even a counter-offer. But, the idea that people that rattle your cage standing on common-area property – whether verbally, through body language (how do you like being given the middle finger while you are in your yard?), or by simply being behind our house every time we looked out the window or turned around while outside.
Now imagine enduring this if you have PTSD. Not just creepy, but literally preying upon someone’s condition like a schoolyard bully. Which is what many of us endured at multiple meetings with Mr. Flanary in 2018 and 2019. Every legitimate effort to use Robert’s Rules or governing documents to get him to cease and desist from this behavior weren’t just ignored, but it literally resulted in his escalations peaking with the infamous meeting in his basement on 6/13/19, again, audio recorded, where he basically tried to use property rights (trespassing) to prevent me from attending a meeting where he intended to berate me publicly, and then strip me of my position as Web Administrator and Secretary. I just wanted to record it – and did.
So, with Motions, Responses, and Replies before the court, once again, we tried to settle. I got the call from Robinson & Henry that our negotiation had been disrupted by . . . my former attorney. He, for whatever reason, bypassed his attorney and insurance company to make a direct offer to POHOA to settle for $10,000, paid by his insurance company. That’s the money Mr. Flanary was referring to in his Gish Gallop question to me at the Annual Meeting.
I managed to partially describe some of that verbally in my 2-minute response. But, without all the details and context, Mr. Flanary’s purpose is accomplished. Homeowners that only hear that may or may not understand what they’ve heard. And, Mr. Flanary knows that – because he is a former Defense Attorney who knows out to influence jurists – whether seated in a court, or in the court of public opinion. He does this all the time at meetings, and I’m not the only one he treats this way.
And, again, it is his behavior that I believe POHOA has an obligation to intervene and stop – at the very least for the easy-to-identify forms of Microaggression. CAI has public information that the Board could review, not to mention CAI-trained or credentialed employees. Plus Trademark, who supposedly had experience and credentials to help them stay within the boundaries of the law too – or so said the board in their original pitch in hiring them.
So, none of what Mr. Flanary said prior to his question was technically related to his question. It was either false or half-truth. And, that’s the point. It is stated that way to answer the question in advance, and put me on the defensive with a Board coordinating with him to call into question my character. In fact, that was one of the basis of the litigation – that Mr. Flanary, Mr. Hammond, Mr. Denenberg, and others that we sought to use discovery to find out who participated in a well-coordinated word-of-mouth campaign to label me as a “liar” and “crazy”. It continues to this day – with the later being intentional stigmatization of someone with a mental disability, PTSD.
But, we still, after all this analysis haven’t got to the question: Why should the homeowners trust you [Andy Mowery]?
Well, for one, my brand is honesty and transparency. My Facebook profile is public, I have over 4,000 connections circling the globe, many of whom challenge my posts regarding their factual correctness because I engage people of all persuasions and beliefs. I’m known for backing up what I say with sources, and, when I do make an error, correcting or adjusting, if there are counter-facts that demonstrate I was wrong. Which means I can actually say “I’m wrong”, and more importantly, “I’m sorry.”
But, if anyone would take the time to dig deeper to look at my travels to India, and in particular for the 2019 Parliamentary Elections where I was on the ground for 30 days with my friend who was running for re-election to Parliament as a representative of Andhra Pradesh, I was actually entrusted by the highest levels of members of the Telugu Desam Party, including flying after elections to Delhi to protest some of the most astounding corruption I’ve witnessed. I was in the room with dozens of members of Parliament at the Election Commission as these complaints were lodged, and through that experience, became acutely aware of threats to democracy in that country. This is not open to the public, and, in fact, I was with the Chief Minister of Andhra Pradesh at the press conference after the meeting, with his personal body guards with fingers on the semi-automatics flanking him. You don’t get into these positions without significant trust.
So, why, then would Mr. Flanary ask this type of question, where the Gish Gallop basis is false? Because leading questions are designed to put the receiver in a position where almost any response is heard by others in a way that the damage is already done. The law-school example is: “When did you stop beating your wife, Mr. Smith?”
There’s no way to answer this question without some determining Mr. Smith, for the fact that the question was asked, must potentially have deficient character. That’s why these types of questions are disallowed in court, and why they would be stricken from the record and the jury told to ignore the question in considering their verdict.
But, we only have kangaroo courts at POHOA – which is why I believe Justice is one of the pillars of building a better HOA, and part of my campaign agenda.
As for those of you who are reading this, and are perhaps unconvinced, or would like to ask questions of me, I welcome the contact and engagement. If you have heard something through the grapevine and what to know my response, send me an email, give me a call, or ask me when you see me. I’m glad to respond – as long as I can have sufficient time to answer. And, that might be better suited for a written response, in some cases.
But, in the interim, if you know someone spreading rumors about me, or claiming I am a liar and therefore not deserving trust, I would only ask that you ask the person promoting the concept to provide any evidence that Fact A (assigned to me) is countered by Fact B. While those defending the litigation loved to say I am a liar, they never provided a single example to the Court or CCRD. They simply want all consideration of what I have to say dismissed because they’ve repeated it so much, their hope is that the facts or merits are not ever actually considered.
I have offered to the POHOA Board, the managers, and the attorneys an opportunity provide evidence I’ve made a false statement on any fact. I’ve offered them the opportunity to respond here – with comments or with articles of their own. I’ve offered to amend or retract anything for which they can provide factual evidence I’ve made any mistake. They’ve never once provided a single example – to anyone.
But, perhaps the greatest reason i should be trusted is because, in spite of the bullying, retaliation, insults, delegitimizing, and all the other forms of microaggression, I do my best to respond at meetings in a direct and dispassionate manner. I’ve had others review the recording of the Annual Meeting, and I’m told that after having my mic cut several times, I might sounds “emotional”.
Think about this though: Board members want great latitude because they are “just volunteers”. Homeowners, on the other hand, are held to a standard of protection. They cannot claim ignorance of the governing documents, they must know them perfectly and follow them perfectly. If they ever once lose their cool even slightly, and even in defense of microaggressions, that should then define them.
So, why should I be trusted?
Because I believe that after 2 years and enduring significant abuse and bullying, expending significant time and expense, I continue to be persistent in getting POHOA to replace it’s current “kerfuffle” policy with a real Hostile Environment Harassment policy as recommended by CAI, and to commit to some defined process (best illustrated by flow chart) that tells a homeowner how to properly file a complaint requesting intervention when criteria defined by HUD are met. It’s beyond reasonable at this point for the POHOA Board to refuse any longer – they invited litigation, I did not seek it.
Litigation is a failure of other negotiation processes. And, because a homeowner has a duty to act to avoid creating waiver, pursuit of resolution to disputes within the HOA that are thwarted at the informal negotiation and mediation level are ripe for filing litigation. POHOA could have avoided the whole thing by being educated on the law, putting a CAI-recommended policy in place, and intervening to give us peace from people like Mr. Flanary – both at meetings and in our backyard. This policy should apply equally to all members because, while FHA law limits coverage to protected classes, some protected classes are not as easy to identify as skin color. And, I don’t think we are prepared to survey or document people’s sexual orientation, mental health status, religious beliefs, or anything else that gives someone protected status for what they think or believe. We should presume everyone is in a protected class, not question them the same way CAI recommends questioning the legitimacy of every claim of emotional support pets as a default attitude.
Thank you for reading and considering my response to Mr. Flanary’s question which needed this length to articulate accurately and thoroughly. And, let’s stop the practice of letting Mr. Flanary or anyone else use Gish Gallops or leading questions or microaggressions at meetings. The POHOA Board must take deliberate steps, and be prepared to intervene and shut down such behavior – as it makes meetings tense and unpleasant, which then results in less participation.
I truly and honestly do not believe this is too much to ask.
If you care to listen to the Annual Meeting, the recording is below. Mr. Flanary’s question begins at 1:28:08