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

United States District Court, D. Colorado

February 15, 2017



          Nina Y. Wang United States Magistrate Judge

         Magistrate Judge Nina Y. Wang This matter is before the court, pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated July 15, 2015 [#19], on a number of pending motions:

(1) Defendant [Aspen Mountain Condominium Association]'s Motion for Summary Judgment [#30, filed June 6, 2016];
(2) Plaintiff's Motion for Partial Summary Judgment on Issue of Liability (Fed. R. Civ. P. Rule 56) (“Plaintiff's Motion for Partial Summary Judgment”) [#52, filed August 1, 2016]; and
(3) Plaintiff's Motion for Withdrawal of Deemed Admission as to Defendant's Second Written Discovery Request (Fed. R. Civ. P. Rule 36(b)) (“Plaintiff's Motion to Withdraw Admissions”) [#60, filed August 31, 2016].

         The court has reviewed the Parties' briefs, the entire docket, the applicable case law, and took oral argument on the Motions for Summary Judgment on August 12, 2016 [#58]. Being fully advised of the premises, this court respectfully GRANTS Plaintiff's Motion to Withdraw Admissions; and DENIES the Motions for Summary Judgment.


         This case arises from a dispute between Plaintiff, J. Lee Browning Belize Trust (“Plaintiff” or “Belize Trust”) and Defendant Aspen Mountain Condominium Association, Inc. (“Defendant” or “AMCA”)[1] over damage caused by a June 2014 sewage blockage and backup. [#1]. Plaintiff owns Unit 1-A in the Aspen Mountain Condominiums, which is managed by AMCA. [Id. at ¶ 7]. In June 2014, part of the sewage disposal line running from Unit 1-A to the sanitary sewer system became blocked to the point of causing sewage backup, resulting in sewage-soaked carpeting and flooring as well as other damage to Unit 1-A. [Id. at ¶ 12]. Plaintiff alleges that AMCA refuses to make a definitive repair to the sewage disposal line that causes repeated blockages and, accordingly, Plaintiff cannot list or sell Unit 1-A. [Id. at ¶¶ 15- 16]. Plaintiff further contends that the present fair market value of Unit 1-A, in the present circumstances, is “at best no more than 40 percent to 60 percent of its reasonable fair market value [of $1.1 million], ” and that “the conduct of the defendant AMCA in deliberate refusal to carry out definitive repair is to deliberately inflict damages on the plaintiff Trust of hundreds of thousands of dollars.” [Id. at ¶ 27]. As a result, Belize Trust asserts the following claims against AMCA: (1) injunctive relief, seeking “mandatory injunctive relief as is reasonably necessary to compel defendant AMCA and its officers to carry out definitive repair of the sewage disposal line serving Unit 1-A;” (2) damages for the costs of repair and remediation of the defective sewage disposal line, and for costs associated with temporary lodging, temporary repairs, and other expenses caused by the June 2014 blockage; and (3) exemplary damages for outrageous conduct. [#1].

         On July 14, 2015, this court entered a Scheduling Order in this matter that set a deadline for written discovery to be served by March 31, 2016; discovery to close on May 31, 2016; and a dispositive motion deadline of May 31, 2016. [#18]. The Scheduling Order further advised the Parties that “[c]ounsel will be expected to be familiar and to comply with the Pretrial and Trial Procedures or Practice Standards established by the judicial officer presiding over the trial in this case.” [Id. at 11]. During the Scheduling Conference, this court advised the Parties of its informal discovery dispute process. [#16]. The deadlines for discovery and dispositive motions were then extended multiple times through orders granting stipulated motions. See e.g., [#25; #26; #27; #32; #33]. Ultimately, the deadline for discovery was set for July 22, 2016 [#33] and then extended by Stipulation for Defendant to serve its Responses and Objections to Plaintiff's First Set of Written Discovery until July 29, 2016 [#42], and the court extended the dispositive motions deadline until August 1, 2016 [#50, #51].

         On June 6, 2016, AMCA moved for summary judgment on two grounds: (1) because Plaintiff had failed to respond to requests for admission, such requests were deemed admitted; and (2) because Plaintiff had failed to designate any expert witnesses, Belize Trust could not establish the existence of essential elements of its claims to which it bore the burden of proof and, thus, AMCA was entitled to summary judgment. [#30 at 2-3]. After the filing of Defendant's Motion for Summary Judgment, the Parties stipulated to a number of extensions to the deadlines set forth in the Scheduling Order. First, the Parties stipulated to, and this court granted, an extension of time to complete discovery until July 22, 2016. [#32; #33]. Then, the Parties stipulated to, and this court granted, an extension of time for Plaintiff to respond to Defendant's Motion for Summary Judgment. [#35; #36]. Next, the Parties stipulated to an enlargement of time for Defendant to serve its responses and objections to Plaintiff's First Set of Written Discovery Requests to July 29, 2016. [#43]. Then, the Parties stipulated to, and this court granted, an extension of time for the filing of dispositive motions. [#43; #48]. The deadline for filing of dispositive motions was then extended yet another time to August 1, 2016. [#50, #51].

         On August 1, 2016, Plaintiff filed its Motion for Partial Summary Judgment, on the issue of liability. [#52]. Plaintiff contends that the undisputed facts demonstrate that the sanitary system outside of Unit 1-A is defective and, accordingly, summary judgment is appropriate as to liability. [Id. at 8]. Defendant disputes that Plaintiff is entitled to summary judgment, because the claims presented by Plaintiff are not “strict liability” claims, that there is no authority that a homeowners' association can be held strictly liable for the back-up of a sewage drainage system within a condominium building, and that neither Defendant's expert report nor the appraisal of an unrelated unit justifies summary judgment in favor of Plaintiff.

         On August 17, 2016, Plaintiff initiated a substantially similar action against Defendants Bruce Lynton, Steve Daubenmier, and Donald Miller (collectively, “Individual Defendants”), who are identified in the operative complaint in Civil Action No. 16-cv-2078 as officers of AMCA. Defendant AMCA moved to consolidate that case with this action, and this court granted that Motion to Consolidate by Minute Order dated February 14, 2017. [#67].


         I. Summary Judgment

         Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).

         A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289 (1968)). In reviewing a motion for summary judgment the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         Once the moving party demonstrates an absence of evidence supporting an essential element of the opposing party's claims, the burden shifts to the opposing party to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. To satisfy this burden, the nonmovant must point to specific facts in an affidavit, deposition, answers to interrogatories, admissions, or other similar admissible evidence demonstrating the need for a trial. Id.; Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992). “[A] mere ‘scintilla' of evidence will be insufficient to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some ‘significant probative evidence tending to support the complaint.'” Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252).

         In addition, after giving notice and a reasonable time to respond, the court may grant summary judgment on grounds not ...

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