Francis v. Wegener

Citation494 P.3d 598
Decision Date13 September 2021
Docket NumberSupreme Court Case No. 21SA147
Parties In re Robert A. FRANCIS, Plaintiff, v. Benjamin WEGENER; Younge & Hockensmith, P.C.; Wegener, Scarborough, Younge & Hockensmith, LLP; and Aspen Mountain Condominium Association, Defendants.
CourtSupreme Court of Colorado

Plaintiff Robert A. Francis, pro se, Aspen, Colorado

Attorneys for Defendants Benjamin Wegener ; Younge & Hockensmith, P.C.; and Wegener, Scarborough, Younge & Hockensmith, LLP: Wegener Scarborough & Lane P.C., Benjamin M. Wegener, Grand Junction, Colorado

Attorneys for Defendant Aspen Mountain Condominium Association: Stuart D. Morse & Associates, LLC, Stuart D. Morse, Matthew J. Bayma Greenwood Village, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 The Colorado Constitution confers upon every person an undisputed right of access to our state courts. Colo. Const. art. II, § 6. But this right isn't absolute. A party's right of access to the courts must sometimes yield to the constitutional right of other litigants and the public to have justice administered without denial or delay. Such is the case when courts are called upon to curb the deleterious impact that duplicative and baseless pro se litigation has on finite judicial resources. Indeed, on several occasions, we have permanently enjoined an individual from proceeding pro se as a proponent of any claim in pending or future litigation in state court. We do so again today.

¶2 For the reasons we articulate in this opinion, Robert A. Francis, whether acting individually or on behalf of a trust or some other entity, is now enjoined from proceeding pro se as a proponent of a claim (i.e., as a plaintiff, third-party claimant, cross-claimant, or counter-claimant) in any present or future litigation in the state courts of Colorado. No one is entitled to use the judicial process for the purpose of harassing his or her adversaries. And when someone like Francis insists on doing just that for the better part of a decade, including after courts have warned him, reprimanded him, and sanctioned him, and after his law license has been suspended, it is incumbent on us to step in and say "enough."

I. Facts and Procedural History

¶3 Since 2010, Francis, both as an attorney of record and in a pro se capacity, has initiated numerous legal proceedings (including several appeals) related to the same disputes. All told, he has filed twenty-seven cases—with the last twenty-six being duplicative or otherwise frivolous, groundless, and vexatious. Francis has forced our courts to play what has essentially become a game of judicial whack-a-mole. He simply refuses to stop litigating the same successive and stale claims, harassing his opponents in the process. Admonitions and sanctions by multiple tribunals and the suspension of his law license have done nothing to deter him. Finally at their wit's end, Younge & Hockensmith, P.C., its successor firm, Wegener, Scarborough, Younge & Hockensmith, LLP, and one of the firm's attorneys, Benjamin M. Wegener (collectively "Petitioners")—all victims of Francis's abusive tactics—brought this original proceeding to request that we enjoin Francis from ever appearing pro se as a proponent of a claim in any present or future litigation in state court. Under the circumstances, we conclude that the only way to prevent any further misuse of the legal system by Francis is to grant the relief requested.

¶4 Because simply stating that Francis has filed some twenty-seven separate cases related to the same claims doesn't quite capture the egregious nature of his conduct, and because we deem it important to demonstrate that the extraordinary sanction we impose today is amply justified, we painstakingly discuss each pertinent cause of action. Thus, after introducing the conflicts at the heart of these contentious proceedings, we describe in some detail the litigation in 10CV201 (the primary case) and then briefly review each lawsuit that can be traced back to it.

A. The Genesis of the Conflict

¶5 In the late 2000s, the Francis parties (Francis, several of Francis's family members, and multiple trusts owned and/or operated by the Francis family) owned Unit 1-A in the Aspen Mountain Condominiums.1 In 2009, a sewage drain backup purportedly caused water damage to that unit. Convinced that the water damage stemmed from a common element in the condominiums, Francis submitted an insurance claim to American Family Insurance, the insurance carrier for the Aspen Mountain Condominium Association ("AMCA"), the homeowners’ association for the Aspen Mountain Condominiums.

¶6 Around the same time, in 2010, AMCA, with approval from the majority of the unit owners, amended the Aspen Mountain Condominiums’ governing declarations. Whereas the original 1972 declarations had allocated common interest shares and expenses based on unit size, the 2010 amendment did so equally among all units. Because Unit 1-A was one of the smaller units, the Francis parties’ assessment rate increased from 8% to 9%. Having anticipated this increase in expenses, the Francis parties had cast the only vote against the 2010 amendment.

¶7 These two events—the damage to Unit 1-A from the sewage drain backup and the 2010 amendment to the declarations—acted as the catalysts for the protracted litigation that prompted Petitionersrequest for relief. It all started in 2010, but a decade-plus later, the Francis parties are still at it.

B. The Primary Lawsuit, Including the Three Related Appeals

¶8 In 2010, the Francis parties brought suit in Pitkin County district court. They (1) sought damages related to the sewage drain backup and (2) asked the court to enter a declaratory judgment establishing that the declarations’ 2010 amendment was void because it lacked unanimous support from the unit owners. AMCA and its board of directors disagreed on both fronts and opposed the Francis parties’ requests.

¶9 After filing their lawsuit, the Francis parties stopped paying most of the assessments due for Unit 1-A. AMCA thus filed a separate complaint against them seeking to recover those assessments.

¶10 The two actions were consolidated in 10CV201. Though the Francis parties were represented by counsel, Francis (a practicing attorney at the time) filed some pleadings pro se. He did so even after the district court entered an order barring him from submitting pro se filings while represented by counsel.

¶11 In 2015, following years of litigation, the district court accepted a "stipulation of partial dismissal with prejudice" related to the claims brought by the Francis parties based on the sewage drain backup. The court later entered judgment against the Francis parties on their claim regarding the declarations, concluding that the 2010 amendment was valid and that the Francis parties owed unpaid assessments to AMCA at the new rate of 9%. Given the Francis parties’ default in payment of the assessments due, the court also entered a decree of judicial foreclosure against Unit 1-A. Finally, pursuant to Colorado law governing common ownership communities, the court imposed attorney fees against the Francis parties.2

¶12 The Francis parties appealed, asserting, among other things, that the district court had erred in declaring the 2010 amendment valid. They argued that the 1972 declarations could not be amended without a unanimous vote. In February 2017, a division of the court of appeals agreed with them. Francis v. Aspen Mountain Condo. Ass'n , 2017 COA 19, ¶ 23, 401 P.3d 125, 130. As relevant here, the division remanded the matter to the district court to reconsider the propriety of the judgment and decree of foreclosure and to determine how much, if at all, the Francis parties owed in unpaid assessments. Id. at ¶ 39, 401 P.3d at 132.

¶13 On remand, the district court held a hearing, applied the original assessment rate of 8%, and entered a different judgment in favor of AMCA. It ordered the Francis parties to pay AMCA $285,447.92 in assessments due, collection costs, and attorney fees and costs.

¶14 The Francis parties appealed again. They contended that the district court had erred on remand by (1) failing to adhere to the division's initial opinion; (2) awarding AMCA attorney fees and costs; and (3) admitting into evidence a spreadsheet that summarized records related to the Francis parties’ account. Both parties requested an award of attorney fees and costs on appeal. In September 2019, a different division of the court of appeals affirmed the district court's judgment on remand. Francis v. Aspen Mountain Condo. Ass'n , No. 18CA772, ¶ 10, 2019 WL 4732396 (Sept. 26, 2019). And, as to the cross-motions for appellate attorney fees and costs, it denied the Francis parties’ request but granted AMCA's. Id. The division then remanded the matter to the district court to award AMCA its reasonable attorney fees and costs on appeal. Id.

¶15 In March 2020, after the district court awarded AMCA its reasonable attorney fees and costs on appeal, the Francis parties filed a third appeal. However, a division of the court of appeals dismissed the appeal in February 2021 because the Francis parties filed "no response" to the motion to dismiss submitted by the appellees. Judi B. Francis Irrevocable Tr. v. Miller , No. 20CA845, 1 (Feb. 8, 2021). The division also observed that the trusts named as appellants could not appear pro se. Id.

¶16 Importantly, before the years-long litigation in 10CV201 finally came to an end, the Francis parties initiated numerous other legal proceedings related to the same disputes. We summarize those duplicative proceedings, which spanned eight years (between 2013 and 2021), next.3

C. The Second Lawsuit

¶17 In February 2013, while 10CV201 was still pending in district court, the Francis parties filed a new case in county court in Pitkin County, 13C35. This action raised issues that were implicated in 10CV201. One of the parties designated as a plaintiff in the new action was AMCA, even though the Francis parties had no...

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