Summary Judgment Rhines

STATE OF NEW MEXICO COUNTY OF TAOS EIGHTH JUDICIAL DISTRICT

CASE NO. D-820-CV-2015-00328

JODY RHINES, MARCUS ROMANO, and MICHAEL BALASSONE,

Plaintiffs, vs.

MICHAEL REYNOLDS, SUSTAINABLE SOLUTIONS WORLDWIDE, EARTHSHIP BIOTECTURE, and DOES 1 THROUGH 10, INCLUSIVE,

Defendants.

PLAINTIFFS' SUMMARY JUDGMENT MOTION AS TO COUNT ONE, BREACH OF FIDUCIARY DUTY BY REYNOLDS

Plaintiffs, by and through their attorney of record, Lee Boothby, New Mexico Legal

Center, P.C. files their Motion for Summary Judgment and Memorandum in Support thereof. I. INTRODUCTION In the most recent Court Order filed on August 8, 2018, the Court held that there

remained genuine issues of disputed fact as to Plaintiffs' Count 1, for Breach of Fiduciary Duty,

paragraphs 15, (E) (F), (G), (H), and (M), set forth as follows:

Defendants were to have paid for the road improvements and repairs through the completion of the subdivision. However, in 2014, the Defendants required the members of GWC to pay for $16,000 in road repairs after flooding took out many of the substandard culverts. Had Defendants constructed the road according to the regulations Plaintiffs are informed and believe and thereon allege that these repairs would not have been necessary. In any case, Defendants were responsible for the repairs to the road and not GWC of which Plaintiffs are a member.

Signage that currently exists has been paid for by GWC dues and this is the proper responsibility of the Defendants reasons as well as guard rails and signage at the ‘land dam’ area.

FILED 8th JUDICIAL DISTRICT COURT Taos County 6/18/2019 2:10 PM BERNABE P. STRUCK CLERK OF THE COURT

AMK

The Defendants have stacked the Board of Directors of GWC with their own employees and/or agents and/or co-conspirators. Thus, the Board of Directors and the Defendants, are one and the same.

The Defendants had the Board of Directors authorize the GWC to pay for Defendants' insurance and property taxes for property Defendants still own.

On June 30, 2015, Defendant Reynolds sent an email to Plaintiff Balassone stating that Members can only bring up one issue per board meeting. This was sent before the Board even voted on it. This demonstrates the fact that GWC has no independent board of directors and this edict was issued in retaliation for Plaintiffs' complaints, as set forth herein, which the Defendants and the GWC Board of Directors continue to ignore.

Accompanying the Court's second SJM Order, was a letter from the Court dated July 25,

2017, suggesting that the Association should "obtain independent legal advice and put the

association's affairs to rights."

As explained below, Mr. Reynolds did not pass the letter onto the GWLUA Board until

June 7, 2019. (Fryer Affidavit at ¶¶ 22-23.) However, on September 13, 2018, Plaintiffs' hired

their own H.O.A. expert, attorney Rachel Winston. A copy of her Report is being filed concurrently with Plaintiffs' Motion and in support thereof. II. SUMMARY JUDGMENT STANDARD NMRA 1-056(c), states, “The judgment sought shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998

NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. In ruling on a motion for summary judgment, this

Court must resolve all reasonable inferences in favor of the nonmovant and must view the

pleadings, affidavits, depositions, answers to interrogatories and admissions in a light most

favorable to a trial on the merits." Garcia-Montoya v. State Treasurer's Office, 2001-NMSC-003,

¶ 7, 130 N.M. 25, 16 P.3d 1084. After so doing, if there are no genuine issues of material fact,

this Court can then rule as a mater of law. An issue of fact is material if the existence (or non

existence) of the fact is of consequence under the substantive rules of law governing the parties'

dispute." Martin v. Franklin Capital Corp., 2008-NMCA-152, ¶ 6, 145 N.M. 179, 195 P.3d 24. III. STATEMENT OF UNDISPUTED FACTS 1. On April 26, 1994, Defendant Reynolds filed Articles of Association, By-Laws, a Treatise, a property description, and a Land Users Code, for the Greater World Land User’s

Association, (GWLUA) in the real property records of Taos County. 2. The April 1994 Land Users Code identifies the HOA as “a non-profit unincorporated association” and the documents filed on that date meet the requirements for establishing an

unincorporated association under the Unincorporated Association Act pursuant to NMSA

(1978) §53-10-1 et. seq. 3. On June 13, 1994, Defendant Reynolds re-recorded Articles, By-Laws, a property description, a Treatise, and a Land Users Code, labeled “May 1994 Edition”. 4. On April 29, 1996, the GWLUA began paying property taxes on land that belonged to Reynolds, but which he claimed would one day be turned over to the association. (Exhibit 1.) 5. On March 25, 2002, Defendant Reynolds re-recorded the Articles, By-Laws, property description, and Land User’s Code, which were labeled “December, 2001 Edition”. 6. On August 25, 2003, Defendant Reynolds re-recorded Articles, By-Laws, property description and Land User's Code entitled the "August 2003 Edition." The Land User's Code under the heading "Roads" provided that the roads would be maintained by the community only after "total build out" and initial installation by the Initiator [developer]." (Exhibit 2.) 7. On August 23, 2005, Defendant Reynolds filed an amendment to the Land User's Code entitled "2005 Addendum", which states that “[t]hese amendments are mandatory to all Greater

World members whose deed is dated beyond 3/30/05 and optional for all members whose deed is dated before 3/30/05.” 8. On March 12, 2010, Defendants re-recorded Articles, By-Laws, a property description, and a Land User's Code labeled "August 2003 Edition", but including the text of the 2005

Amendment. It also included an "Addendum to the Greater World Documents" labeled as

"Exhibit F", which included a section entitled "Clarification of Covenants/ By-Laws" and

provides that a member who fails to pay the annual assessment " shall be obligated to pay to the

Association reasonable attorney’s fees and necessary costs incurred by the Board in enforcing its rights and takings such action." This 2010 Addendum is attached hereto as Exhibit 3. 9. In total, Defendants recorded five sets of Articles, By-Laws, and Land Users Codes, and two Addendums, since the inception of the HOA. (Winston Report at pg. 14.) 10. The Members of the G.W. Land Users Association never voted on nor approved, the various Editions, Amendments or Addendums Reynolds filed with the Taos County Clerk as required by NMSA (1978) § 53-10-4. 11. On April 25, 2014, the Land Users Association terminated pursuant to NMSA (1978) §53-10-1, 20 years after its creation. 12. On June 17, 2015, Reynolds filed a Notice of Homeowner’s Association, pursuant to NMSA (1978) § 47-16-4 of the Homeowner Association Act, citing all the documents filed on March 12, 2010. (Exhibit 4.) 13. On September 16, 2015, Reynolds circulated to the board of directors a document titled “Conduct, Objectives and Directives of the Board of Directors of the Greater World

Community/Subdivision”, in which Reynolds references Article VI of the GWLUA Articles of

Association, and states that only when 90% of the development is developed will Reynolds

appoint a board of directors. Until that time, "the developer [Reynolds] has established a 'courtesy board of directors'". (Exhibit 5.) 14. As of October 19, 2018, the Association had paid a total of approximately $39,709.51 for property taxes on un-surveyed land, title of which is still held in Reynolds' name. (See, Exhibit 1). 15. Between February 21, 2008, and September 10, 2018, the GWLUA has paid a total of $7,166.66 for liability insurance on the un-surveyed land Reynolds has yet to turn over to the association. (Exhibit 7.) 16. Between January 23, 2008, and November 29, 2018, the GWLUA has paid a total of $42,698.67 in road maintenance and repairs. (Exhibit 6.) 17. Between September 26, 2013, and September 17, 2015, the GWLUA has paid a total of $1,556.25 for roadway signage. (Exhibit 8.) 18. The Members of the Greater World Land Users Association has never voted on, nor approved, any increases to their annual dues as required by NMSA (1978) § 53-10-4. 19. Reynolds, as the developer of the Greater World Land User's Association has never recorded an instrument voluntarily terminating all rights to declarant control. (See, NMSA § 4716-8(B)(4). (See, Fryer Affidavit at ¶ 9.) 20. Reynolds has never transferred title to the common lands to the association. (See, NMSA (1978) § 46-16-8(B)(4).) 21. Gillian Fryer, a California attorney not licensed in New Mexico, was elected to the board of directors in December of 2014. She volunteered to be treasurer of the association in the beginning of 2016. (See, Fryer Affidavit at ¶¶ 5-6.)

Prior to that time, there had been no accounting. She was given some crude check registers. It looked like checks were written and deposits were made but they were not tallied.

She only went back to 2012, and went through the checkbook and typed everything into Quicken. (See, Fryer Affidavit at ¶¶ 6-7.) 23. On April 18, 2018, Reynolds filed eleven (11) affidavits from current and past board members. The content of all of the affidavits were essentially identical. 24. Gillian Fryer, admitted during her deposition, that she did not review any of the exhibits referred to in her affidavit. She now recants portions of her affidavit. (See, Fryer Affidavit at ¶ 9.) 25. Ms. Fryer recants paragraph 4 stating that the Minutes alone, (dated August 3, 2005) cannot establish whether the Board was acting in accordance with the GWLUA Articles of Association, By-laws or Land User's Code. (See, Fryer Affidavit at ¶ 13.) 26. Ms. Fryer recants paragraph 7 of her affidavit and states that there are numerous instances where the Board has inconsistently enforced the Land User’s Code. Furthermore, after

consulting with James Chavez, legal council hired for the GWLUA on March 19, 2019, the

GWLUA is an expired unincorporated association and not in compliance with the HOA Act. (See, Fryer Affidavit at ¶ 17.) 27. Ms. Fryer also recants paragraph 9 of her affidavit and no longer agrees with the alleged state of the association. (See, Fryer Affidavit at ¶ 18.) 28. Ms. Fryer, at the April 3, 2019 board meeting, took the position that Mr. Chavez should be hired by the association to establish the Greater World Community as a non-profit

corporation. Reynolds vetoed this proposal stating the he would wait for the Judge to decide,

since Reynolds had a different legal opinion from Mr. Chavez. (See, Fryer Affidavit at ¶ 20 and ¶ 33.) 29. At a Q & A meeting two weeks later Reynolds stated to the members that "he could refile the GWLUA every 20 years." (See, Fryer Affidavit at ¶ 35.) 30. On April 14, 2019, Reynolds asked Ms. Fryer to step down because she was supporting the Plaintiffs in the lawsuit against him and therefore, she had a conflict of interest. This was not

true. Her only concern, as an attorney herself and a board member, was to ensure that the association was run properly. (See, Fryer Affidavit at ¶¶ 36-37.) 31. At the June 5, 2019, board meeting, the board approved Reynolds’ motion to ignore Chavez’ admonition that the association was no longer legally viable and to “continue business as usual". (See, Fryer Affidavit at ¶ 44.) IV. ARGUMENT A. Reynolds Owes a Duty to the Plaintiffs Both as the Developer of the Greater World Community and as the Controlling Director of the GWLUA.

In the case of Moody v. Stribling, 1999-NMCA-094, ¶ 17, 985 P.2d 1210, the court held

that it is a question of law as to '"whether a particular defendant owes a duty to a particular

plaintiff.'" (Citation omitted.) The court went on to state that "[o]ur Courts recognize that a

fiduciary duty or confidential relationship can exist in a variety of contexts depending upon

whether the relationship between the parties is one of trust and confidence." Moody, 1999

NMCA-094, ¶ 17. The court further recognized that "[s]uch a relationship can exist in almost any

context." Moody, 1999-NMCA-094, ¶ 19.

"While both this Court and the Supreme Court have used different definitions for

recognizing a fiduciary or confidential relationship, each definition conveys essentially the same

meaning. The most recently restated definition is “ ‘[a] fiduciary relationship exists in all cases

where there has been a special confidence reposed in one who in equity and good conscience is

bound to act in good faith and with due regard to the interests of one reposing the confidence.’ ”

Moody, 1999-NMCA-094, ¶ 18.

"Similarly, Black's Law Dictionary 625 (6th ed.1990) defines “fiduciary” as '[a] person

having duty, created by his undertaking, to act primarily for another's benefit in matters

connected with such undertaking.'" Moody, 1999-NMCA-094, ¶ 18.

A finding of fraud is not required in order to prove a breach of fiduciary duty. Instead, "a

fiduciary duty is a duty of loyalty." Moody, 1999-NMCA-094, ¶ 27. "[A] fiduciary owes the

highest degree of loyalty to those who are entrusted to him or her. Moody, 1999-NMCA-094, ¶

"A fiduciary breaches this duty by placing his interest above those of the beneficiary."

(Citation omitted.) Moody, 1999-NMCA-094, ¶ 27.

It is well settled that directors and officers have a fiduciary relationship to the

shareholders of a corporation. (Citations omitted.) Corporate promoters [i.e. Developers] hold

the same confidential relationship with those to whom they would sell stock, or, in the case of a mandatory membership association, a membership. (Citations omitted.) The fact that the association is unincorporated should in no way affect this relationship, and the commentators have been readily disposed to impose fiduciary duties on the directors, officers, and managers of unincorporated associations . . . ." (12 Wake Forest L.Rev. 915, 921.) (Attached hereto as Exhibit 7.) (Emphasis added.) The Wake Forest Law Review Article cited above was relied upon and acknowledged for

"its thoughtful and insightful discussion" by the court in the Raven's Cove Townhomes, Inc. v.

Knuppe Development Company, Inc., 114 Cal.App.3d 783, 800, 171 Cal.Rptr. 334, 344 (1981.)

In that case, the homeowner association brought an action against the three developers

and its employees as former directors in control of the Association, inter alia, for breach of

fiduciary duties for failure to maintain sufficient reserves by the initial board of directors.

(Raven's Cove Townhomes, Inc., 114 Cal.App.3d 787, 171 Cal.Rptr. 334, 335.)

The Court recognized in this case that the court was dealing with two separate positions

within a Homeowner association to which fiduciary duties attach. Namely the developer and the

board of directors.

As to developers, the court stated, "[i]n most jurisdictions, the developer is a fiduciary

acting on behalf of unknown persons who will purchase and become members of the

association." (Citations omitted.) (Raven's Cove Townhomes, Inc., 114 Cal.App.3d 783, 799, 171

Cal.Rptr. 334, 343.)

As to directors, the court stated, "[i]t is well settled that directors of nonprofit

corporations are fiduciaries. The court looked to the Corporations Code "which required

directors and officers to 'exercise their power in good faith, and with a view to the interest of the corporation.'"1 (Raven's Cove Townhomes, Inc., 114 Cal.App.3d 783, 799, Cal.Rptr. 334, 344.)

The "interest of the corporation" means no conflict of interest. No self-serving deals. In the Raven's Cove Townhomes case, the developers turned over the common areas to the association. This was in accordance to their CC&Rs and at that point the monthly assessments to the homeowners began. (Raven's Cove Townhomes, Inc., 114 Cal.App.3d 783, 799, Cal.Rptr. 334, 343.)

However, further complicating the case, the court found a conflict of interest because the

three developers and its agents and employees were the initial board of directors in the

1 See, NMSA (1978) §53-8-25.1 Duties of Nonprofit Directors. "A director shall perform his duties . . . in good faith . . . in or not opposed to the best interest of the corporation."

homeowners association. (Raven's Cove Townhomes, Inc., 114 Cal.App.3d 783, 799, Cal.Rptr.

334, 343.)

"We note that the duty of undivided loyalty (see Scott, The Fiduciary Principle, 37 Cal.L.Rev. 539) applies when the board of directors of the Association considers maintenance and repair contracts, the operating budget, creation of reserve and operating accounts, etc. Thus, a developer and his agents and employees who also serve as directors of an association, like the instant one, may not make decisions for the Association that benefit their own interests at the expense of the association and its members." (Citations omitted.) (Emphasis added.) (Raven's Cove Townhomes, Inc., 114 Cal.App.3d 783, 799, Cal.Rptr. 334, 343.) "Where a developer or sponsor totally dominates the association, or where the methods of control by the membership are weak or nonexistent, ‘closer judicial scrutiny may be felt appropriate,’ and the principles of fiduciary duty established with business corporations ‘may exist for holding those exercising actual control over the group’s affairs to a duty not to use their power in such a way as to harm unnecessarily a substantial interest of a dominated faction." (12 Wake Forest L.Rev. 915, 923.)[See, Exhibit 9] (Emphasis added.) (Raven's Cove Townhomes, Inc., 114 Cal.App.3d 783, 800, Cal.Rptr. 334, 343.)

"The Court ruled that "the initial directors and officers of the Association had a fiduciary relationship to the homeowner members analogous to that of a corporate promoter to the shareholders. These duties take on a greater magnitude in view of the mandatory association membership required of the homeowner. . . . Thus, the individual initial directors are liable to the Association for breach of basic fiduciary duties of acting in good faith and exercising basic duties of good management." (Emphasis added.) (Raven's Cove Townhomes, Inc., 114 Cal.App.3d 783, 800-801, Cal.Rptr. 334, 344.)

In Raven's Cove Townhomes, Inc. the members did not have to start paying monthly dues

until the developer turned over the common areas to the association. In Reynolds case, the

members have been paying dues as early as 1996, and their dues have gone to cover property

taxes and liability insurance on land still owned by Reynolds.

As in Raven's Cove Townhomes, Inc., Reynolds is not only the developer but has

unbridled domination over the association's board from its inception to the present. Therefore it

is a breach of his duty of undivided loyalty, to require the members to pay for expenses that

rightfully were Reynolds responsibility. Reynolds' mandate benefitted his own financial interest

at the expense of the members. The court in Raven's Cove Townhomes, Inc. stated that this fact

can also justify "closer judicial scrutiny". B. Reynolds Had No Legal Right to Compel Members to Pay for Property Taxes, Liability Insurance, Road Maintenance and Repair, and Roadway Signage.

NMSA (1978) § 53-10-4 states:

The members of any such association or club formed under this act may prescribe from time to time, rules and regulations for the government of said club or association as the majority of its members from time to time may determine, may prescribe what fees and dues shall be payable, and the time when the same shall be paid as a condition for membership, or the continuance thereof by any member, and may provide in such rules that upon default in payment of such dues, or the violation of any of its other rules or regulations, a member's membership may be determined; which rules and regulations shall be deemed a contract between the member affected thereby and the balance of the members composing such association.

In other words, § 53-10-4 means that only a majority of its members can prescribe what

fees and dues shall be payable by them. Never once in the entire history of the Greater World

Community has any of its members voted on the amount of annual dues they should pay and for

what purpose those dues should be used. Road Maintenance and Repair and Signage In response to the Taos County requirement that Reynolds comply with the County's Subdivision Rules, Reynolds filed the Greater World Community Subdivision August 2003

Edition on March 29, 2004.

Part 4, of that edition of the Land User's Code under "Roads" states in part that, "[the roads] will be maintained by the community after total build out AND initial road installation by the Initiator." (Emphasis added.)(Exhibit 2.) To date, none of the four subdivision phases has achieved total build out, nor has title to any road or other common area acreage within the

subdivision been transferred to the Association. (Winston Report at pgs. 29-30.)

To date the Association has paid $42,698.67 in Road Maintenance and Repairs. Attached

hereto and marked as Exhibit 6, is from Amy Duke's deposition taken on April 10, 2019. Ms.

Duke went through every line item listed on the spreadsheet and agreed that it was accurate

except for one $3.00 error. To date the Association has paid $1,556,25 for roadway signage. Attached hereto and marked as Exhibit 8 is from Amy Duke's deposition taken on April 10, 2019. Ms. Duke went

through every line item listed on the spreadsheet and agreed that it was accurate.

This is in violation of the GWLUA's own Code, as well as § 53-10-4. It is also a violation

of Reynolds duty of loyalty to the association. It is a breach of his duty NOT to put his financial

interests ahead of the association. Yet this is exactly what he has done.

Despite the clear language of § 53-10-4, throughout this litigation, Reynolds has argued

that because the GWLUA board of directors approved the payment of road maintenance in 2005,

he was and is justified, in passing this expense on to the members.

However, Reynolds 2015 Directive (Exhibit 5) makes clear that from 2005 to the present,

the Board of Directors is a "courtesy board". Furthermore, Reynolds total domination and control

of the board is clearly documented in the Fryer Affidavit. Property Taxes and Insurance Beginning on April 29, 1996, the GWLUA began paying a portion of the property taxes

on Reynolds land. (See, Exhibit 1.) However, Reynolds has sworn to the Court in his Affidavit

filed on August 30, 2018, that the members only began paying a percentage of the taxes and

insurance in 2005. (Reynolds Affidavit at ¶ 29.) Reynolds was off by nine years.

To date the Association has paid approximately $39,709.51 in property taxes. Attached

hereto and marked as Exhibit 1, is a spreadsheet and backup from Amy Duke's deposition taken

on April 10, 2019. Ms. Duke went through every line item listed on the spreadsheet and entered a

checkmark for each line item she agreed with. There were certain items she disputed because the

proof was ambiguous, but these line items are not significant.

To date the Association has paid $7,166.66 for liability insurance on the "common land"

still owned by Reynolds. Attached hereto and marked as Exhibit 7, is a spreadsheet and backup

from Amy Duke's deposition taken on April 27, 2019. Ms. Duke went through every line item

listed on the spreadsheet and entered a checkmark for each line item she agreed with.

Below sets forth the total that Reynolds should have paid, but instead forced that

financial burden onto the members, without legal authority to do so.

Summary Road $42,695.67 Ins. $7,166.66 Prop.Taxes $39,709.51 Signs $1,556.25 Total $91,128.09

Plaintiffs Are Entitled to Recover Their Reasonable Attorney Fees and Costs.

NMSA (1978) §47-16-14 of the HOA Act states that:

"A court may award attorney fees and costs to any party that prevails in a civil action between a lot owner and the association or declarant based upon any provision of the declaration or bylaws; provided that the declaration or bylaws allow at least one party to recover attorney fees or costs." (Emphasis added.)

However, if the HOA is created before July 1, 2013, the above section does not apply

pursuant to NMSA 1978 §47-16-15.

In this case, the GWLUA was established as an unincorporated association on April 26,

1994, pursuant to NMSA 1978 §53-10-1. Its existence expired on April 25, 2014, pursuant to

NMSA 1978 §53-10-7. Therefore at the time of filing Plaintiffs' Complaint, it cannot be argued

that the GWLUA was in existence prior to July 1, 2013, since its existence had expired.

On the other hand, because Reynolds filed a Notice of Homeowner's Association, citing

the association documents from 2010, on June 17, 2015, (Exhibit 4) the association was begun

anew on that date.

In either case, the Plaintiffs are entitled to recover their attorney fees, because the

Addendum to the Greater World Documents”, filed on March 12, 2010, in Book 711, pages 443

452 (“2010 Addendum”) (Exhibit 3) allows the board to recover attorney’s fees and costs:

3.1 No member may waive or otherwise escape liability for the assessments provided for herein by nonuse of the shared facilities or abandonment of his or her property…In the event any of the foregoing actions are taken by the Board, then the Member shall be obligated to pay to the Association reasonable attorney’s fees and necessary costs incurred by the Board in enforcing its rights and takings such action. (Emphasis added.)

To summarize, the Greater World Land User’s Association ceased to legally exist as an

unincorporated association on April 25, 2014, by statute. Therefore, the “Applicability” provision in the

HOA Act exempting the HOA Act’s attorney’s fees provision § 47-16-14 for HOAs established before

July 1, 2013, does not apply to the Greater World Land User’s Association.

Per the requirements of the § 47-16-14 of the HOA Act, a court may award attorney fees and

costs to any party that prevails in a civil action between a lot owner and the…declarant based upon any

provision of the declaration or bylaws; provided that the declaration or bylaws allow at least one party to

recover attorney fees or costs. The Great World Land User’s Association’s 2010 Addendum contains a

provision allowing one party (the HOA) to recover attorney fees and costs. D. Rachel Winston's Conclusions Regarding Reynolds' Actions. Rachel Winston concluded in her Report that Reynolds has breached multiple duties

owed by a long-term developer of a subdivision in control of the HOA to the homeowners,

including the duty of good faith (honesty in fact), obedience (compliance with applicable law

and the rules of the servitude scheme), diligence (care), and loyalty (fiduciary). To ensure that

these duties owed by Reynolds is fulfilled, Reynolds should be ordered to:

(1) incorporate the Greater World Land Users Association under the Nonprofit

Corporation Act, Chapter 53, Article 8 NMSA 1978;

(2) adopt amended and restated community documents consistent with the provisions of

the Nonprofit Corporation Act and the HOA Act;

(3) transition full control of the HOA to the owners as described herein;

(4) survey and transfer title to the Common Areas, including roadways, from Defendant

Michael Reynolds to the HOA;

(5) fully fund the HOA’s reserves for long-term capital repairs and replacements of

Association property as determined by a qualified engineer;

(6) refund dues for budget items which were Defendants’ financial obligation, including

road maintenance, insurance and property taxes paid by the HOA for land still owned by

Defendant Michael Reynolds;

(7) construct the Common Area amenities advertised by Reynolds; and

(8) reimburse Plaintiffs' attorney's fees incurred in bringing this cause of action

pursuant to NMSA (1978) § 47-16-14. (Winston Report at pgs. 30-31.) IV. CONCLUSION For all of the foregoing reasons, Plaintiffs' Motion for Summary Judgment and for an award of their attorney fees and costs should be granted. Respectfully subm itted,

/s/ Lee Boothby__________ Lee Boothby, Esq. New Mexico Legal Center, P.C. 515 Gusdorf Rd. Ste. 8 Taos, New Mexico 87571 Telephone: (575) 751-7415 Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 18, 2019, I submitted for e-filing and service the foregoing pleading through the Court's "Odyssey File & Serve" filing system which caused the following counsel of record to be served by electronic means or otherwise stated, as more fully reflected on the Notice of Electronic Filing.

Stephen Natelson, Esq., Natelson Law Firm; 411 Camino de la Placita, Taos, NM 87571

____/s/ Lee Boothby ___________ LEE BOOTHBY