I have always been a believer in free speech and frank and open
discussions about anything that might be on anyone's mind. My
parents always said I liked to argue and most believe that is the reason
I became an attorney. Even though I have strong opinions, I pride myself on having an open mind and have never had any trouble
admitting when I am wrong.
I started practicing law in 1991 and have dealt with hundreds of people
from all walks of life during that time. In my line of work, I
often deal with people at their worst, and what never ceases to amaze me
is the complexity of human relationships and the extremes that people
will go to to give each other a hard time. Those who grew up in my
parents' generation were fortunate enough to live in simpler times where
people tolerated each other and tried harder to get along, and I often wonder
where all of the civility has gone in today's society.
While I find it unfortunate to be involved in something
as silly as this driveway lawsuit, I recognize that some of my neighbors
took this as a very serious matter and I do not want to seem flippant
about it. While I have always been a believer
that a man ought to be able to do what he wants on his own property,
I also recognize the necessity and value of protective covenants in
enhancing property values and overall neighborhood quality. I may not care as much as the
next guy about what goes on around me, but I acknowledge that protective
covenants have their purposes and agree that many of them should be
enforced. I also recognize, however, that many sets of covenants
that are applied to neighborhoods are not carefully considered, and too
many HOA board members blindly follow and apply them, no matter how
doing so may fly in the face of common sense and reason taking into
account all of the relevant facts and circumstances. I do not see
this as a problem unique to High Gables; it is a societal problem and I
intend to educate as many folks as possible about some of the
absurdities I have learned of in this and other neighborhoods.
In many ways, the anonymous letter I received
from one of my neighbors (follow the link if you have not yet read it:
Anonymous Letter) highlights the differences between me and those
who decided they had no choice but to sue me. The author, whom I
can only assume has never talked to me and who knew nothing of the facts
and circumstances surrounding my decision to wait a few weeks after I
moved in to pour my driveway or why I further delayed the pouring after
the factors I encountered, finds it a personal affront and disrespectful
to my neighbors that I did not finish my driveway sooner. I, on
the other hand, was
only doing what I believe any reasonable person who encountered the same
circumstances as I did would have done.
I knew the driveway was going to be costly (I
wrote a check on December 1 for $21,394.00 and have no doubt that it
would have been substantially more if not for my friendship with Michael
Hill), and I also knew that once the driveway was poured, I could not
take a chance on damaging it with any heavy equipment.
Accordingly, it only made sense for me to be done with the heavy
equipment before I poured, which meant any necessary sitework requiring
heavy equipment had to be finished before I could pour. I find it impossible to believe that the
author of the anonymous letter or any member of the HOA board who took the time
to understand the issues would
have done anything differently than I did under the same circumstances.
I acknowledge that I could have gone to the members of the HOA board and
explained the situation in detail and requested their understanding and
leniency. Maybe if I had done so things might have
turned out differently, and I can only hope that the members of the HOA board
also wonder where things would be now if they and their
representatives had taken a different approach to this matter. Not
many of us have experience building, and having already had to jump through a number of unnecessary hoops for Forsyth
County and its inspectors, I knew that I would have really been in a box
if the HOA board did not agree to work with me and we had no realistic
choice but to make the decision we did to close our loan and move in
prior to pouring the driveway.
I had reviewed the Building and Design Specifications and knew they were
silent on when the driveway work had to be done, and I just knew it
would be finished long before it ever became an issue. I decided to take my
chances and remarked to some of the folks I know that I did not believe
it would be long before I started hearing from the HOA board if things
did not go as we had planned. Based upon the initial
correspondence and contact I received from the HOA board and its agents,
the overall tone of my communications with them, the rumblings that I
had already heard "through the grapevine" from some of my neighbors
within the first few weeks of moving in, and my understanding that most
of the homeowners in this neighborhood had voluntarily agreed to pay an
additional assessment in the Creech lawsuit to "protect the integrity of
the covenants", I believe I made the right decision, and even after it
started becoming an issue, I hoped to be able to fix the "problem"
before it escalated.
I always felt like the communications from the HOA board were to keep
the neighbors at bay and did not believe it would ever come to a lawsuit
against me, although I did recognize that possibility. I was
surprised that I was not contacted by the HOA's attorney before being
sued (although I realize that it is unlikely that any conversation we
might have had ultimately would have staved off the filing), and
frankly, being served with the Complaint without any prior
communications from counsel was not the way I would have expected this
matter to be handled. It is customary among attorneys to
communicate with litigants who are represented by counsel prior to
filing suit and at least offer them the opportunity to acknowledge
service, but no such courtesy was extended to me. I can only
assume that the HOA board feels like the way I have handled this matter
to date has not been in keeping with giving it the respect it believes
it deserves and that those feelings led to the handling of this matter
in the way the HOA board has handled it. It essentially indicates
as much in one of the final letters I received from Bob Clark prior to
filing my Answer, Counterclaim and Third Party Complaint. See
the end of the third paragraph of the first of the
Nov 25 Letters.
Over the years I have prepared
easements and covenants for more than one neighborhood development and have dealt with
the likes of Target, Home Depot, Wal-Mart, Lowes, Chick-fil-A, Cracker
Barrel, Eckerd's, Party City, Papa John's, Hollywood Video and many others
on behalf of my developer clients in negotiating complex reciprocal
easement agreements and declarations of covenants for commercial retail
shopping centers. One thing I have always found to be true is that
a 10,000 square foot tenant in a 1,000,000 square foot shopping center
thinks he ought to have as much say so over what a developer does in the
shopping center as the 320,000 square foot Super Wal-Mart, the 150,000
square foot Home Depot, or the developer himself. I have often
found residential homeowners to have the same mentality, and this
neighborhood's HOA is no different.
There may be more than a few out there who will say that five
months to pave a driveway is inexcusable, no matter what the
circumstances, or that my family had no business moving in the
neighborhood until everything was done, and while I disagree, I
recognize that there is some validity to that position, especially if it
is considered in a vacuum. I assume
that the HOA board and those of our neighbors who insisted on this
course of action are firm in their belief that they are doing the right
thing (as are we), and while I am not asking anyone to agree with us, I do
want my friends and neighbors to understand this matter
from my perspective.
I know a number of people that live in this neighborhood and have even
worked with, or given professional advice or assistance to, some of the
past and present members of the HOA board. While I will learn more
as we get further into the litigation, I doubt that there are more than
a few fully-informed persons who opted to file the suit against me (at
least I hope so). I do not know who all of the people are who
serve on the HOA board and have never met Dave Marchat or Bob Clark (at
least to my knowledge), and I find it ironic that I will be meeting many
of them for the first time when my firm is taking their depositions.
I want everyone who lives here to understand that there are no hard
feelings and that this is just business to me, and I also want them to
understand that while this is not what me or my family wanted, it is
something we will see to a conclusion.
I am thankful to my family for allowing me the opportunity to defend and
explain myself. It bothers me a little that a number of my
neighbors and I are going to be wasting time and money on this unnecessary
exercise (for example, I charge clients $200+ per hour for my time, and
I certainly have more productive things to do than fight with my friends
and neighbors over something like this), and I am not trying to create
any hard feelings with any of my neighbors.
My family and I intend to live here for at least the next 20 years, and
there is no reason that any of us should have to feel weird when we see
each other on the street, in the car line at Chattahoochee or North
Forsyth or at school functions. I was quite disturbed that my 10 year old son found
out about this matter through his 9 year old buddy and would ask that everyone
involved handle this in an adult manner and without involving our
children. I am not one to hold grudges, and I make my living
representing people who sometimes have no choice but to agree to
disagree. That being said, there is no reason for me, my family or
my children to be treated any differently by any of my neighbors, and I
want to clear the air with all of them by saying that none of us should
feel badly about each other for pursuing what we believe in our hearts
is the right thing to do.
I have certain rights as a defendant in this lawsuit and a member of the
HOA which I intend to exercise vigorously, and I trust that none of my
neighbors will hold that against me or my family. While I have no
intentions of trying to bully anyone into submission (I am, after all,
the one on the defensive), I will use everything at my disposal to
prevail in this litigation. I do not like to lose (especially when
I believe I am right or that my cause is just), and I am nothing like others the HOA
may have had issues with in the past that chose to throw in the towel
rather than seeing things through to the end. I have already expended a
significant amount of time on this matter (representing any litigant
properly in a lawsuit always requires a substantial investment of
time and resources) and I will work it just like any other case I handle.
I believe in the common sense and decency of my fellow man and am more
than happy to leave the determination of whether I have any legal or
equitable liability to the HOA or my neighbors to the enlightened
conscience of a jury of my peers. I thank you for taking the time
to read this and encourage you to follow the links set forth above for
future updates.