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Board of Directors for Glastonbury Landowners Association, Inc. v. O'Connell

Supreme Court of Montana

May 28, 2019

DANIEL and VALERY O'CONNELL, Respondents, Counter-Claimants, and Appellants.

          Submitted on Briefs: April 10, 2019

          APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DV-17-135 Honorable Brenda Gilbert, Presiding Judge

          For Appellants: Daniel K. O'Connell, Valery A. O'Connell, Self-represented,

          For Appellees: Alanah Noel Griffith, Griffith & Cummings, PLLC, Big Sky, Montana.



         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Daniel and Valery O'Connell (O'Connells) appeal from a final order of protection from the Sixth Judicial District Court, Park County, that prohibits them from having any contact with Dennis Riley, Daniel Kehoe, Charlene Murphy, Gerald Dubiel, Richard Johnson, Leo Keeler, Kevin Newby, and Mark Seaver (Petitioners). The O'Connells also appeal an order from the District Court granting summary judgment on the O'Connells' counterclaims in favor of the Petitioners and the Board of Directors for Glastonbury Landowners Association, Inc. (the Board). We affirm.

         ¶3 The Petitioners are eight of twelve individual members who comprise the Board, which manages the Glastonbury Landowners Association, Inc. (Association), a homeowner's association near Emigrant, Montana. The O'Connells and each of the twelve Board members own property within the area governed by the Association and are therefore Association members. According to the Association covenants and bylaws, all property owners in the Glastonbury subdivision may freely attend Board and Association meetings.

         ¶4 For several years leading up to March 2017, the O'Connells filed numerous frivolous lawsuits against the Association and the Board. In March 2017, after a thorough analysis of their many lawsuits, the District Court declared the O'Connells vexatious litigants and forbade them from filing any additional lawsuits against the Association or Board without prior court approval. While the court's order prevented more frivolous litigation, the Association's covenants and bylaws still permitted the O'Connells to attend Association meetings-and they did. After the District Court's order, the Petitioners witnessed the O'Connells' behavior at Association meetings grow increasingly hostile and threatening. The O'Connells' combative behavior became so severe that Petitioners and some other Association members grew fearful of them; therefore, the Petitioners filed a petition for an order of protection in October 2017.

         ¶5 The District Court held a hearing on the petition in November 2017. The court limited the hearing to two hours and gave the Petitioners and the O'Connells each one hour of time to use as they saw fit. The Petitioners called the Board President, Dennis Riley; the Board Vice President, Dan Kehoe; and a member of the Association, Michele McCowan, to testify. The O'Connells submitted affidavits for themselves in lieu of testifying in open court, and they called Deputy Tad Dykstra from the Park County Sheriff's Office; Charles Barker, a member of the Association; and Charlotte Mizzi, a member of the Board.

         ¶6 The District Court issued findings of fact, conclusions of law, and an interim order of protection in favor of the Petitioners in December 2017. The District Court found that while the O'Connells were consistently disruptive at Association meetings before March 2017, after the court declared them vexatious litigants, their behavior escalated into open hostility toward Board and Association members. The court found that at an August 2017 Board meeting, Ms. O'Connell's behavior-screaming and yelling over other members while pacing the back of the meeting room-was so disruptive that Riley, the Board President, felt compelled to close the meeting early. Although Riley closed the meeting, Ms. O'Connell continued acting out. Riley lost his temper, pounded his fist on the table, walked to within ten feet of Ms. O'Connell, and told her to leave.

         ¶7 During the order of protection hearing, Ms. O'Connell attempted to characterize Riley's conduct as an assault, but the District Court found Riley's version of events credible, especially in light of testimony the O'Connells elicited from their own witness, Charles Barker. Barker, who was present at the August 2017 meeting, was not concerned for Ms. O'Connell's safety when Riley walked toward her, but he knew Riley was angry and tried to calm him down. The District Court found Barker's account consistent with Riley's.

         ¶8 The court found that at a Board meeting in September 2017, Mr. O'Connell informed the Board he was "an anti-pacifist" and embraced a motto to "have a plan to kill every person" he met. He stated he felt rage because of Riley's actions at the prior meeting and, "if you come against my wife, you come to my wife again, you're gonna have to come against me." He further warned, "I will defend and protect every square inch of my territory."

         ¶9 Deputy Dykstra testified Mr. O'Connell's statement about having a plan to kill every person he met was similar to a quote from a well-known general. Deputy Dykstra interpreted the quote as a defensive statement about what Mr. O'Connell would do if his wife was threatened in the future. Nevertheless, the court noted that in response to Mr. O'Connell's threat, the Board passed a motion to hire a private security guard to keep the peace at meetings. The court found one Board member, Dan Kehoe, even began reaching out to Association members he knew had concealed carry permits to ask them to attend ...

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