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DeJean v. Grosz

United States District Court, D. Colorado

July 24, 2015

FELIX A. DEJEAN, III, an individual, CAROLYNE DEJEAN, an individual, Plaintiffs,
v.
COLLEEN A. GROSZ, as Trustee of the Declaration of Trust for Benefit of Colleen A. Grosz, dated August 11, 1989, TIMOTHY C. RODELL, an individual, MARJORIE M. RODELL, an individual, Defendants.

ORDER ON PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND NON-TAXABLE EXPENSES

Nina Y. Wang United States Magistrate Judge

This matter comes before the court on Plaintiffs Felix A. DeJean, III and Carolyne DeJean’s (collectively, “Plaintiffs” or the “DeJeans”) Motion for Attorneys’ Fees and Non-Taxable Expenses, filed on November 13, 2014 [#57] (the “Motion for Fees”). Pursuant to the Order of Reference dated January 8, 2014 [#25], the Reassignment dated January 8, 2014 [#24], and the Reassignment dated February 19, 2015 [#68], the Motion for Fees is before this Magistrate Judge. The court has reviewed the pending Motion for Fees, Defendants Colleen A. Grosz (“Ms. Grosz”), Timothy C. Rodell (“Mr. Rodell”), and Majorie M. Rodell’s (“Ms. Rodell, ” and with Mr. Rodell, the “Rodells”) (collectively, “Defendants”) Response [#64], Plaintiffs’ Reply [#66], and any exhibits thereto. Satisfied that the Motion for Fees can be resolved on the record before the court without the need for oral argument from counsel for the Parties, for the reasons discussed below, the court DENIES the Motion for Fees.

BACKGROUND

I. Plaintiffs’ Complaint

The DeJeans filed their Complaint in this matter on September 3, 2013. [#1] (the “Complaint”). The following is a summary of certain relevant allegations from Plaintiff’s Complaint (allegations that, where factual, were not disputed at summary judgment).

Plaintiffs own a condominium designated as Unit B in a duplex located in Aspen, Colorado. [#1 at ¶ 2]. Defendant Colleen Grosz owns Unit A in the same duplex. [Id. at ¶ 4]. Both units are located at located on “Lot 5 in Block 1, Promontory Subdivision.” [Id. at ¶ 14]. The Rodells own property located near the duplex in the same subdivision. [Id. at ¶¶ 6, 17].

By warranty deed recorded on November 22, 1957, “Benedict Land and Cattle Company conveyed Lot 5 to Robert Barnard.” [Id. at ¶ 15]. The deed from Benedict Land and Cattle Company to Mr. Barnard (the “Benedict Deed”) contained a single family dwelling restriction. [Id. ¶ 16].

According the Complaint, “There has been a duplex on Lot 5 since at least 1979.” [Id. at ¶ 19]. Moreover, since 1979, “Lot 5 has been subdivided as a condominium development, with a map and declaration, containing two units. [Id. at ¶ 20]. Plaintiffs’ alleged that the dwelling restriction contained in the Benedict Deed decreased the value of Unit B by $500, 000 as of the time of the filing of their Complaint. [Id. at ¶¶ 21-22].

Based on these allegations, Plaintiffs sought a declaratory judgment from this court that “declaratory judgment that the Benedict Single Family Dwelling Restriction is not enforceable against Unit B or Lot 5” based on grounds including, inter alia, that the “Defendants no longer have the right to enforce the Benedict Single Family Dwelling Restriction against Unit B or Lot 5” because Defendants’ rights to enforce the applicable restriction were terminated pursuant to Colorado’s adverse possession statute C.R.S. § 38-41-101. [Id. at ¶ 27].

II. Relevant Motion Practice and Summary Judgment Order

On November 4, 2013, Defendants moved to dismiss this action as barred by res judicata. [#7] (“Claim Preclusion Motion to Dismiss”).[1] According to Defendants’ Motion to Dismiss, in 2006, “Defendants, among others, commenced an action against the DeJeans, among others, in the District Court for Pitkin County, Colorado, Case Number 2006 CV 231 (the ‘Prior Action’).” [#7 at 2]. In the Pitkin County litigation, the DeJeans brought a number of counterclaims (including one pursuant to C.R.S. § 38-41-101) seeking a declaratory judgment that the same single family dwelling use restriction at issue in this case was invalid or otherwise unenforceable. [Id. at 2-4].

On January 14, 2014, while the Claim Preclusion Motion to Dismiss was pending, this court held a Status Conference. At the Status Conference, this court denied the Res Judicata Motion to Dismiss without prejudice, and ordered that Defendants were to file any motion premised on the “absence of subject matter jurisdiction . . . on or before January 31, 2014.” [#27]. On January 31, 2014, Defendants filed a motion challenging subject matter jurisdiction, contending that the $75, 000 amount in controversy required for the court to hear this case in diversity was not met because the alleged $500, 000 diminution in the value of Unit B was “speculative, ” and based on Defendants’ assertion that Plaintiffs had already recovered any damages as against Stewart Title Guaranty Company in prior litigation. [#30] (“Subject Matter Jurisdiction Motion to Dismiss”). Defendants also argued that no actual controversy existed as between the Parties sufficient to confer jurisdiction to this court to enter a declaratory judgment. [Id.].

On May 21, 2014, the court denied Defendants’ Subject Matter Motion to Dismiss. [#37]. The court found that this “case presents a substantial controversy between landowners with competing interests.” [Id. at 4]. The court’s conclusion that a justiciable controversy existed was based in part on the prior Pitkin County litigation between Defendants, the DeJeans, and other parties, where Defendants had sought to enforce a height restriction contained in the same deed at issue in this case. [Id.]. In determining that the amount in controversy requirement was met, the court found that although Defendants offered some evidence tending to rebut Plaintiffs’ claimed damages, the court was unable to find on the record before it “to a legal certainty that the plaintiffs cannot recover the jurisdictional amount of $75, 000 or that the sum claimed by the plaintiffs is not made in good faith.” [Id. at 5-6].

On June 3, 2014, Defendants filed a renewed Motion to Dismiss premised on claim preclusion. [#38] (“Renewed Motion to Dismiss”). On August 12, 2014, pursuant to the court’s Scheduling Order, before the Renewed Motion to Dismiss was fully briefed, both sets of Parties filed motions for summary judgment. [#46 (Plaintiffs’ “Motion for Summary Judgment”), #47 (Defendants’ “Motion for Summary Judgment”)]. Defendants’ ...


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