United States District Court, D. Colorado
FELIX A. DEJEAN, III, and CAROLYNE DEJEAN, Plaintiffs,
COLLEN A. GROSZ, as Trustee of the Declaration of Trust for Benefit of Colleen A. Grosz, dated 8/11/1989, TIMOTHY C. RODELL, an individual, and MARJORIE M. RODELL, an individual, Defendants.
BOYD N. BOLAND, Magistrate Judge.
This matter arises on Defendants' Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1) [Doc. # 30, filed 1/31/2014] (the "Motion to Dismiss"), which is DENIED.
This action concerns the enforceability of a restrictive covenant contained in a 1957 Deed which provided that not more than one detached single family dwelling could be constructed on Lot 5 in Block 1, Promontory Subdivision, Aspen, Colorado (the "Property"). Complaint [Doc. # 1] at ¶16. The restrictive covenant is recorded in the real property records of Pitkin County, Colorado. Id. at ¶15. Contrary to the restrictive covenant, however, the Property was subdivided as a condominium development in 1979, and a duplex has existed on the Property since 1979. Id. at ¶¶19-20.
From August 1988 until February 1994, both units of the duplex were owned by a single individual. Subsequently, defendant Grosz, as trustee for a trust, acquired title to Unit A of the duplex. Id. at ¶4. The plaintiffs own Unit B of the duplex. Id. at ¶2. Unit A of the duplex is known as 211 East Midland Avenue, Aspen, Colorado; Unit B of the duplex is known as 215 East Midland Avenue; and the Rodells own real property known as 201 Midland Avenue. Id. at ¶¶2, 4, and 6.
The plaintiffs allege that the existence of the restrictive covenant "adversely affects the marketability of the [Property]." Id. at ¶21
The Complaint's single claim for relief seeks a declaration that the restrictive covenant "has terminated and is not applicable as an encumbrance" on the Property. In support, the plaintiffs cite the Colorado adverse possession statute, which provides in part:
No person shall commence or maintain an action... to enforce or to establish any right or interest of or to real property... unless commenced within eighteen years after the right to bring such action... has first accrued.
Section 38-41-101(1), C.R.S.
The defendants move to dismiss the Complaint arguing that (1) there is no present case or controversy concerning the enforceability of the restrictive covenant and (2) this court lacks subject matter jurisdiction because the $75, 000 amount in controversy requirement of 28 U.S.C. § 1332 is not satisfied.
A motion to dismiss based on the absence of a case or controversy under Article III of the Constitution is treated as a motion under Rule 12(b)(1), Fed. R. Civ. P. Bateman v. City of West Bountiful , 89 F.3d 704, 706 (10th Cir. 1996). Similarly, the defendants' jurisdictional challenge based on the plaintiffs' alleged failure to satisfy the amount in controversy requirement also is made under Rule 12(b)(1). Enbridge Pipelines (Ozark), LLC v. Bailey, 2009 WL 1941966 *1 (N.D. Okla. July 2, 2009).
The Tenth Circuit Court of Appeals has explained:
Rule 12(b)(1) motions generally take one of two forms. First, a moving party may make a facial attack on the complaint's allegations as to the existence of subject matter jurisdiction. In reviewing a facial attack, the district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction is based.... In reviewing a factual attack, a court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts. In ...