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Lipin v. Wisehart

United States District Court, D. Colorado

February 9, 2018

JOAN C. LIPIN, Plaintiff,
v.
ARTHUR DODSON WISEHART, ERIN JAMESON, ELLEN E. WISEHART, and RICHARD [RHJAKOB KREYCIK, Defendants.

          ORDER on MOTIONS FOR SUMMARY JUDGMENT.

          R. Brooke Jackson United States District Judge.

         This matter is before the Court on plaintiff's motion for summary judgment, ECF No. 99, and defendants' cross motion for summary judgment. ECF No. 101. For the reasons discussed in this order, plaintiff's motion is denied, and defendants' motion is granted.

         BACKGROUND

         This case involves a dispute over the ownership of real property in Delta County, Colorado. Plaintiff Joan C. Lipin claims to be the rightful owner of the property because her husband, Arthur McKee Wisehart (“AMW”), conveyed the property to her through four quitclaim deeds in January 2016. Defendant Arthur Dodson Wisehart (“ADW”) is one of AMW's sons. He and his wife, Erin Jameson, operate a bed-and-breakfast called the Wisehart Springs Inn on the property. Lipin asserts that ADW and Ms. Jameson, in collusion with Ellen Wisehart and Richard Kreycik, are trespassing on the property, and she asks the Court to eject them and to award her $6, 000, 000 in damages. The defendants claim that the property is owned by a trust originally created by AMW's mother.

         Thus, the central and dispositive issue presented in the case is who owns the property. Both sides emphasize in their briefs that they want this issue decided on summary judgment, not at trial. Of course, that is possible only if there is no genuine dispute as to any fact material to the resolution of the matter. Fed.R.Civ.P. 56. While the parties' respective briefs reflect a few fact disputes, I find that none of them is material to the outcome, and that summary disposition is appropriate.

         FACTS

         1. On May 22, 1987 Dorothy R. Wisehart created the Dorothy R. Wisehart Trust (the “DRW Trust”). Trust Agreement, ECF No. 101-1. Dorothy and her son, AMW, were designated co-trustees.

         2. At or about that time Burt and Dorthea Tucker owned the property that later became the subject of this lawsuit. This property, which I will hereafter refer to as the “Property, ” presently consists of four parcels of land collectively referred to as 39540 Pitkin Road, Paonia, Colorado.[1]

         3. On January 22, 1992 the Tuckers sold the Property to the Morning Sun Farm Trust. As part of this transaction the Morning Sun Farm Trust executed a promissory note in favor of the Tuckers and secured the note with a deed of trust on the Property.

         4. The parties seem to dispute whether the Property includes water rights. Compare plaintiff's Statement of Undisputed Facts ¶2, ECF No. 99 at 1-2 with defendants' Statement of Undisputed Facts ¶18, ECF No. 101 at 4. The documents cited by the respective parties (Deed of Trust, ECF No. 99-3 for plaintiff; Record Title Report, ECF No. 101-4 for defendant) do not expressly resolve the dispute. At a minimum, however, those documents do not show that water rights were severed and retained by the Tuckers.

         5. On November 28, 1993 Dorothy Wisehart died, at which point the DRW Trust became irrevocable, and AWM was the sole trustee.

         6. On September 11, 1995 Ellen E. Wisehart as Trustee of the Morning Sun Farm Trust conveyed the Property to the DRW Trust by Quit Claim Deed. ECF No. 99-7. The Quitclaim Deed indicates that the Property includes the water rights. Id. at 3. I find that there is no genuine dispute, and that the Property includes water rights.

         7. On December 19, 1996 the Tuckers, the Morning Sun Farm Trust, and AMW in both his capacity as Trustee of the DRW Trust and individually, amended the promissory note such that AMW became the sole obligor under the note. The deed of trust still secured payment of the note.

         8. The promissory note was paid in full by December 30, 2001. Plaintiff claims that AMW paid the balance due on the note. See plaintiff's motion, ECF No. 99 at 7. Defendants dispute that. ECF No. 101 at 12. Neither side provides evidence one way or the other, but ...


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