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J. Lee Browning Belize Trust v. Aspen Mountain Condominium Association, Inc.

United States District Court, D. Colorado

January 21, 2016



RAYMOND P. MOORE United States District Judge

This matter is before the Court on two issues: (1) whether Plaintiff J. Lee Browning Belize Trust’s claims are barred by claim preclusion; and (2) whether this Court must abstain from hearing this case under Younger v. Harris, 401 U.S. 37 (1971). After considering the Court file, taking judicial notice of relevant portions of the action (the “State Court Action”) filed before the Pitkin County District Court (including the State Court Action docket sheets)[1], and examining the relevant legal authorities, and being otherwise fully advised, the Court dismisses without prejudice the First and Second Claims for Relief, retains jurisdiction over the Third Claim for Relief, and administratively closes this case pursuant to D.C.COLO.LCivR 41.2 until the resolution of the State Court Action.


This case challenges the constitutionality of certain provisions of the Colorado Common Interest Ownership Act (“CCIOA”) which allowed Defendant Aspen Mountain Condominium Association, Inc. (“Defendant” or the “Association”) in 2010 to amend the Condominium Declaration which governs the Aspen Mountain Condominiums (the “Aspen Condos”). Plaintiff is the owner of one condo unit (the “Unit”) in the Aspen Condos. The amendment resulted in an increase of the ownership interest of the Unit in the common elements resulting in an increase in the corresponding obligation of Plaintiff to pay for assessments for common expenses. Plaintiff has filed multiple lawsuits over such action, including the State Court Action filed in 2010 and then, three years later, the action before this Court (the “Federal Action”). On September 8, 2015, a Judgment and Decree of Foreclosure (the “Judgment”) was entered in the State Court Action. By Orders dated November 10 and December 1, 2015, the Court directed the parties to brief the effect of the Judgment, provide information concerning the State Court Action, and to brief various issues, including abstention. The issues are now ripe for determination.

A. The State Court Action

1. Events before the filing of the case before this Court

On or about June 8, 2010, one or more of Plaintiff’s predecessors (Plaintiff and its predecessors, collectively, “State Plaintiffs”) filed the State Court Action in the Pitkin County District Court, Colorado (the “State Court”). (ECF No. 80-6 at ¶1.) Thereafter, State Plaintiffs amended - or moved to amend - their complaint several times.

On July 12, 2010, a second complaint was filed which was apparently identical to the original complaint. (ECF No. 80-2, Complaint; No. 80-6 at ¶5.) There, State Plaintiffs raised five claims, one of which challenged the 2010 amendment of the Declaration. State Plaintiffs alleged the action was illegal, a breach of the condominium documents, and a breach of fiduciary duty, and sought to have the State Court void such action. (ECF No. 80-2, at pages 5, 6.)

On July 29, 2010, State Plaintiffs sought to amend their complaint to add an additional party plaintiff. That motion was denied without prejudice with leave to renew. (ECF No. 80-6.)

On March 14, 2011, State Plaintiffs moved to amend their complaint, which was unopposed by Defendant. (ECF No. 80-7.) The motion was apparently granted as, on March 28, 2011, State Plaintiffs filed their Second Amended Complaint raising six claims for relief. (ECF No. 80-3.) The Second Claim requested declaratory relief, alleging, among other things, “[t]hat the Plaintiffs claim that C.R.S. § 38-33.3-217(1) cannot be interpreted to change the vote required by the original Condominium Declaration, which was created prior to the adoption of such statute, because such interpretation would result in an ex post facto law which affects existing property and contract rights in violation of the Colorado and U.S. Constitutions.” (ECF No. 80-3, ¶ 33.) State Plaintiffs sought a declaration that the Association’s election to apply the CCIOA was null and void but no declaration that the CCIOA was unconstitutional.

On September 13, 2011, State Plaintiffs filed an unopposed motion to add J. Lee Browning Belize Trust (Plaintiff before this Court) as a party.[3]

On November 8, 2012, State Plaintiffs filed a motion for leave to file a derivative complaint on behalf of Defendant relating to the 2010 amendment of the Declaration, but later withdrew it.

By Order dated January 4, 2013, the State Court determined as a matter of law that the provisions of the CCIOA at issue: (1) nullified the provision in the Declaration requiring an 85% approval vote in order to amend the Declaration; and (2) nullified the provision in the Declaration requiring a 100% approval vote to change the percentage interest of a unit owner’s interest in the common elements. (ECF No. 88, page 9.) Also in the order, the State Court noted State Plaintiffs represented they were going to file an amended pleading to “add parties, assert new causes of action, and change the posture of the case, ” but had not done so. (ECF No. 88 at ¶¶ 17, 18.)

On August 12, 2013, State Plaintiffs, purporting to act on behalf of Defendant, filed an action in the County Court, Pitkin County, Colorado, Case No. 2013C30039, against individual board members of Defendant, relating to a claim for insurance proceeds allegedly covering damage to the Unit. (ECF No. 80-9.) ...

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