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Graham v. Jules Investment, Inc.

Court of Appeals of Colorado, Sixth Division

October 9, 2014

James M. Graham and Nichole J. Graham, Plaintiffs-Appellants,
v.
Jules Investment, Inc., and Big Cats of Serenity Springs, Inc., d/b/a Serenity Springs Wildlife Center, Defendants-Appellees

El Paso County District Court No. 12CV3021. Honorable G. David Miller, Judge.

Hamilton Faatz, PC, Clyde A. Faatz, Jr., Andrew C. Iverson, Greenwood Village, Colorado, for Plaintiffs-Appellants.

Gregory John Hock, P.C., Gregory John Hock, Colorado Springs, Colorado, for Defendants-Appellees.

Fox and Márquez[*], JJ., concur.

OPINION

BERNARD, JUDGE

Page 987

[¶1] Can a court order a land owner to sell the land to another if the other's structures encroach on the land? We recognize that this remedy, which is called a " forced sale," should be used sparingly in encroachment cases. But, under the unusual facts of this case, we conclude that such a remedy was proper.

[¶2] This appeal involves a refuge that harbors exotic animals. It is owned by defendants, Big Cats of Serenity Springs, Inc., d/b/a Serenity Springs Wildlife Center, and Jules Investment, Inc. The animals live in structures that are surrounded by fences.

[¶3] The trial court determined that some of the refuge's animals and their keepers trespassed on 1.7 acres owned by plaintiffs, James M. Graham and Nichole J. Graham. As a remedy, the trial court ordered

o plaintiffs to sell the 1.7 acres, which contained some of the structures and fences housing some of the exotic animals, to defendants for $5780;
o defendants to pay all fees and costs associated with this sale; and
o defendants to pay plaintiffs $1737 to assist them in applying for a waiver that would allow plaintiffs to employ their property for agricultural uses.

[¶4] We conclude that the court did not err in its analysis of plaintiffs' trespass and encroachment claim. We also conclude that this remedy was within the trial court's discretion. We therefore affirm.

I. Background

A. The Property

[¶5] Serenity Springs Wildlife Center is a ten-acre wildlife refuge located in El Paso County. It was established by Nicholas and Karen Sculac in the mid-1990s. In 1999, the Sculacs formed a Colorado nonprofit corporation -- Big Cats of Serenity Springs, Inc. -- to manage it. The refuge houses about 140 tigers, lions, and other exotic animals. Many of these animals are threatened or endangered species.

[¶6] The refuge obtained these animals as " rescues" from other animal sanctuaries around the country that have gone out of business. It derives its income from visitors' fees and private donations. It has some paid staff and also uses volunteers.

[¶7] The refuge was once part of a 320-acre parcel of land that Mrs. Sculac acquired in 1993. In 1997, after Mr. Sculac erected the perimeter fence enclosing the refuge, Mrs. Sculac recorded a deed that severed the refuge from the original parcel. And, in 1998, she recorded another deed that severed another 36.5-acre parcel from the original parcel. This 36.5-acre parcel is directly south of, and shares a common boundary with, the refuge. The Sculacs built their home on this parcel. The home is located about 1000 feet from the refuge.

[¶8] The record reveals that, beginning in 2000, the Sculacs and their property went through cycles of foreclosure and reacquisition. Lenders foreclosed the Sculacs' home and the 36.5-acre parcel in 2000. The Sculacs reacquired the parcel and the home in 2003 after the property had passed through several hands. They lost their home and the parcel again in 2006, the year that Mrs. Sculac died. The lender sold the home and the parcel, and the buyers eventually sold it to the plaintiffs in 2010.

[¶9] The Sculacs lost the refuge to foreclosure in 2001, but they got it back in 2004.

Page 988

Mr. Sculac sold it to third parties in 2007; he reacquired it later that year; and a lender foreclosed it in 2008.

[¶10] The lender sold it to Julie Walker in 2009. She conveyed it to a corporation, Jules Investment, Inc. She also ...


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