Day five of the Vely versus Brown trial in District Court saw Judge Patrick Murphy confirming that materials including a Change.org petition and flier contain false claims about Alison Brown and her Headwaters Hounds and are, by law, defamatory.
“The statement itself is defamatory – that has already been proven. This is not in question,” said Murphy. “The question for the jury to decide is the extent of the damages.”
Plaintiffs Chris Vely and Laura Barton, in what has stretched into a week-long case, filed a noise nuisance complaint against next-door neighbor Alison Brown. A counterclaim by Brown alleged that the Velys’ tactics and untruthful claims about foxhunting activities were defamatory to her personally and to her foxhunt club, Headwaters Hounds LLC, causing damage to her personal reputation in the local community and beyond.
She said the untruthful statements related to a term known as “cubbing” also damaged the reputation of Headwaters Hounds and its members, as well as the sport of fox hunting.
As of Friday afternoon, the jury of four women and two men (the alternate was dismissed) began deliberation on three consecutive decisions to be addressed, per Murphy’s instructions, in order: the claims of noise damage, the counterclaim of defamation and a decision on whether the activities associated with 11600 Antelope Road constitute agricultural activity. While Murphy read the detailed jury instructions out loud into the court record, he issued an overall directive regarding use of common sense.
“My decision is it’s common sense; you should be able to claim comparative fault in a nuisance setting,” said Murphy. “If the Velys tie up a coyote 10 feet from my house and the dogs bark at it … it doesn’t make sense that you blame your neighbor for something you’re doing, if the Velys have done something that is making the dogs bark. There was a coyote and a hunting horn played, presumably to make these dogs bark.”
Regarding the noise complaint, Murphy directed the jury to consider if the effects were so substantial as to cause damage to a reasonable person in the community. “Is it unreasonable and intentional? Consider the neighborhood, magnitude and frequency of the noise. It must be more than petty annoyance.”
In his closing statements, plaintiff attorney Randy Herrick-Stare focused on homeowner rights. “When barking dogs more than 1,000 feet away wake you in your bedroom, that is unreasonable. .. Either you’re part of the community or you’re an outlaw. Ms. Brown is an outlaw.”
Herrick-Stare was critical of the assertion that the activities of 11600 Antelope Road should be considered agricultural in nature. “The fundamental purpose (of foxhunting) is to frolic – ride fast in the high desert.”
He pointed out that Laura Barton has had more migraines, and that the stress of the noise was preventing her and Vely from enjoying their home, which he characterized as a peaceful, quiet residential area. “What did they do they were not entitled to do? Stand by their fence? Take wildlife photos? This is a classic blame the victim defense.”
Herrick-Stare proposed damages to Chris Vely of $100,000 and $150,000 to Laura Barton. Regarding the counterclaim of defamation against, he proposed a symbolic payment of $1.00 be levied against Vely and none against Barton.
Charlie Cain, attorney for the defense, began closing arguments by saying, “We’re in Judge Murphy’s court. He makes the law here, and we follow his instructions, not the law according to Herrick-Stare’s interpretations. … They have tried to dictate and change the rules throughout this process. Our claim for defamation is not limited to the foxhunting community. You won’t see the judge instructing you that somehow you’re supposed to look narrowly at one piece of the community. … You don’t get to change the law.
“The plaintiffs did exactly that. They befriended (Brown) when it suited their financial purposes; when she was no longer useful to them, they attacked her – that is significant in the defamation claim.”
He laid out the stages in which Vely and Barton solicited county involvement to triangulate Brown – contacting the county Planning and Zoning Department as early as August 2016, the county’s changes to the Right to Farm and Ranch section of the Chaffee County Land Use Code, changing the definition of kennel, and attempting to limit Brown’s ability to place her hounds on other parcels of land by claiming they were one parcel.
Cain went on to propose modest economic awards for the economic impact to Headwaters Hounds related to the noise claim. When it came to damages for the defamation counterclaim, he cautioned that the damages should relate to the extent of the distribution.
“There is the local community and the broader community and reputation. The petition and its untrue claims have been up 618 days – it’s still there. The petition was signed by well over 70,000 people all over the world,” said Cain.
Cain returned to the concept of neighborliness. “What (Vely) wanted to do was dictate to Dr. Brown where she was going to move these dogs. That’s not what good neighbors do. I am reminded of the poem by Robert Frost, ‘Mending Walls,’ where the phrase ‘good fences make good neighbors’ comes from. These two farmers are walking along their shared rock fence, putting in rocks. Well in this case, Alison Brown was picking up the rocks and stacking them and (Vely) was tearing them down. That is not what good neighbors in this county should do.”