What Judge Prosser Asked Us To Do

A short but interesting open forum kicked off the June 23rd meeting of LHCC’s board. The Bemis case was on a few minds. A woman named Pat, a member of the Alliance to Save Lake Holiday, encouraged owners to send out emails to support the passage of Sen. Jill Holtzman Vogel’s now tabled special interest legislation. Pat’s effort to support a side in the case was confusing to some audience members, because Pat, as a member of the Alliance, is on both sides. She, like every Alliance and Friends of Lake Holiday member, is both a defendant and a plaintiff.

Here are some excerpts of the discussion:

Property Owner: Which position are you supporting, the plaintiff or the defendant? Because from what I understand you’re both.

Alliance Member Pat: You’re asking who I’m with?

Property Owner: You’re telling us to go out and support “our” side. Ok, is it the plaintiffs’ side or the defendants’ side, because the way I understand it, most of the people here are on both sides.

Tom Wallace: You indicated that people are on both sides. There are people on both sides. We’re the defendants. The board is …

Property Owner: They have also cross-claimed as plaintiffs.

Tom Wallace: That doesn’t mean anything except…

Property Owner: It means that they’ve cross-claimed as plaintiffs so they’re on both sides.

Tom Wallace: Only a few of them.

Wayne Poyer: That has nothing to do with plaintiff, that’s a cross-claim. But you are technically correct. We don’t consider…I don’t think anybody who has made a cross-claim or counter-claim considers themselves part of the plaintiffs’ group.

Property Owner: Then why are they cross-claiming?

Wayne Poyer: Because that’s what Judge Prosser asked us to do.

Every member of the Alliance to Save Lake Holiday and every member of Friends of Lake Holiday has filed a cross-claim. That means every member of the Alliance and every member of Friends is a plaintiff against LHCC, the very organization they claim to be trying to save. The “Crossclaim against LHCC” for all Alliance members can be found buried on page 23 near the very end of their filing, and the cross-claim for all Friends members can be found in their pleading, “Cross Claim Against Defendant Lake Holiday Country Club Inc.” The cross-claims effectively repeat the arguments made by the original Bemis plaintiffs and make every party to the cross-claim a plaintiff.

These 2 groups include many former directors, every past president in recent memory, and every current director except Ken Murphy. In other words, in a case alleging that LHCC, run by its directors, has illegally collected assessments not authorized in the owners’ deeds, 10 of 11 current directors who are charged with collecting those assessments have adopted the position that LHCC has collected and is continuing to illegally collect assessments not authorized in the owners’ deeds. If that sounds ridiculous, it’s because it is.

Both current LHCC President Wayne Poyer and Tom Wallace, a former LHCC director, are members of the Friends group. When Wallace replied “only a few” in response to the comment about the position taken by current directors, he was wildly inaccurate. He also failed to mention that he himself is a plaintiff against LHCC. Was his distortion intentional? Or have pleadings been filed in his name that he doesn’t have knowledge of or agree with?

The exchange shown on the video triggered an email from a homeowner to Wayne Travell, the attorney representing the Bemis plaintiffs. The homeowner was troubled by Poyer’s statement that he did “what Judge Prosser asked him to do.”

This just didn’t seem right to me. I don’t know much about law, but it seems to me this is out of line.

Below is Travell’s reply:

Travell responded that “Mr. Poyer has never directly addressed the judge in open court nor vice versa.” He added that he does not believe the judge has engaged nor would engage in private communications with Poyer.

Wayne Poyer openly told his own neighbors at a public meeting that the judge in an active case asked him to take a particular course of action. Poyer suggested his status as a plaintiff was just a technicality. Former director Tom Wallace didn’t candidly acknowledge he is a plaintiff and distorted that 10 of 11 current directors share that position with him. Even Alliance member Pat failed to mention that she is a plaintiff.

How can homeowners separate fact from fiction with leaders like these?

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Jill Holtzman Vogel Rushes To Help Out Big Developer

Virginia state senator Jill Holtzman Vogel (R-27) plans to introduce special interest legislation next week to amend Virginia’s Property Owners’ Association Act (POA Act) whose sole purpose is to affect the outcome of active litigation in Frederick County.

Vogel’s proposed legislation:

  • Was originally drafted by the attorneys for Miller & Smith, a big northern Virginia developer and one of the defendants in the lawsuit;
  • Is an attempt to get around 3 Virginia Supreme Court decisions over more than a decade;
  • Is inconsistent with well-settled Virginia property law and at odds with the state constitution; and
  • Will impact the property rights and values of owners in more than 9100 community associations throughout the state.

Vogel herself:

  • Is a public policy lawyer, and by her own admission to plaintiffs’ counsel, does not have the knowledge or experience to hastily tinker with property law;
  • Hasn’t had the time to fully evaluate the unintended consequences on property owners in more than 9100 community associations across the state;
  • Repeatedly masks her efforts as a small “fix” to a definition in the POA Act; and
  • Is trying to slip her legislation through in a very short special session of the legislature focused on transportation issues – a completely unrelated matter.

All that’s bad enough. What’s even more troubling is how she’s used the media to distort what’s behind her efforts and to distort how the plaintiffs regard her inappropriate meddling in active litigation.

A Timeline To Vogel’s Legislation to Bail-Out a Big Northern VA Developer
Date Event
1996-2007 Miller & Smith is a donor to Sen. Richard Saslaw (D-35).
? According to Vogel, Saslaw encourages her to undertake this project and offers the story that his personal doctor asked him to help out. She commits to him to introduce the legislation.
6/4/08 LHCC announces Vogel would hold an “open meeting” to “discuss the Bemis lawsuit and its impact”, moderated by local attorney Mark Stivers, counsel for a group of defendants.
6/10/08 Wayne Travell, plaintiffs’ counsel, emails Mark Stivers and asks if he can attend.
6/12/08 After getting no response from Stivers, Travell faxes him a letter.
6/16/08 Travell receives Stivers’ response. The reply: Travell is not welcome at Vogel’s allegedly “open meeting”, all of which is well documented.
6/18/08 Travell informs Vogel by telephone conversation and emailed letter that he’s being kept out of her “open meeting”.
6/18/08 4:39 pm Vogel provides Travell a copy of draft language she said had been written by lawyers at Reed Smith, counsel for Miller & Smith (a big northern Virginia developer).
6/18/08 6:00 pm Vogel holds her allegedly “open meeting” and, according to newspaper reports in both the Winchester Star and NV Daily, commits to introduce legislation at a meeting whose announced purpose was to be a moderated discussion. According to a property owner at the meeting, in response to a question on the appropriateness of her intervention, Vogel said that the Virginia Attorney General declined to assist her office, citing ongoing litigation.
6/19/08 10:30 am Vogel meets with plaintiffs’ counsel for the first time and acknowledges that she is not a real estate lawyer, did not understand the lawsuit and the POA Act, and that her first draft of the legislation was provided by lawyers for another party to the lawsuit. Plaintiffs’ counsel tell Vogel they are deeply troubled by her plan and urge her to stop.
6/20/08 Vogel tells the Winchester Star that the plaintiffs are “super-excited” by her efforts, despite repeated communications with plaintiffs’ counsel expressing they viewed her plans as inappropriate meddling in active litigation.

Let’s be absolutely clear. The plaintiffs are not “super-excited” by Jill Vogel’s efforts. They’re very troubled a sitting state senator would even contemplate introducing legislation drafted by 1 side of an active court case to attempt to re-write Virginia law in an area where she has acknowledged she lacks both experience and background, let alone publicly commit to doing so. She exposed her own lack of background when she described the POA Act as “almost 40 years old.” The POA Act was first enacted by the Virginia legislature in 1989, making it 19 – not almost 40 – years old. It’s a clear abuse of the legislative process when poorly informed legislators try to pass legislation to tip a pending court case that could, if enacted, end up having widespread, unintended consequences and upset well-settled Virginia law.

The Winchester Star reported Vogel said:

I don’t want to mess up what the plaintiffs otherwise want to gain.

That’s disingenuous nonsense. Wayne Travell, plaintiff’s counsel, in a face-to-face meeting, in phone conversations, and in multiple email messages unambiguously communicated to Vogel that the plaintiffs opposed her inappropriate intervention. After reading Saturday’s Winchester Star, Travell emailed Vogel to express that he was “shocked” at what he read. Of Vogel’s characterization of the plaintiffs’ position, Travell wrote:

Nothing could be further from the truth.

Vogel chose to interfere in an active court case. Her interference was prompted by the request of 1 side, not all sides, and was accompanied by strong and repeated requests by plaintiffs that she abandon her ill-advised plan. Those facts don’t square at all with her own statement that she is not trying to “mess up” the plaintiffs’ position in an active case. That is exactly what her legislation is all about: messing up 1 side for the benefit of the other, which just happens to be that of a big developer.

Vogel committed to proposing new legislation before even meeting with counsel for plaintiffs, so she could not possibly have understood what plaintiffs “want to gain” before deciding to intervene. She accepted draft legislation from the lawyers for 1 side. Despite learning before the allegedly “open meeting” that counsel for the plaintiffs would not be allowed to attend, she went ahead and held her meeting anyway. Later that same night, the lawyers that drafted her legislation called her to say that their own language wouldn’t solve their legal problems, so she’d have to come up with something else to fix their troubles. For a legislative session that starts on Monday, June 23rd, Vogel has been unable to provide a copy of her proposed legislation at this writing – late in the afternoon on the day before.

Local attorney Mark Stivers told the Winchester Star that he believes LHCC is a property owners’ association that falls under Virginia’s POA Act. If he really believes that, why is there so much effort spent to change the law? If the law is on your side, why do you need to change it?

Jill Holtzman Vogel is interfering because the law is clear and settled. And the big developer that Jill Holtzman Vogel has decided to help out doesn’t like that.

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