United States District Court, D. Colorado
JOAN C. LIPIN, Plaintiff,
ARTHUR DODSON WISEHART, ERIN JAMESON, ELLEN E. WISEHART, and RICHARD [RHJAKOB KREYCIK, Defendants.
ORDER on MOTIONS FOR SUMMARY JUDGMENT.
Brooke Jackson United States District Judge.
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.
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.
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.
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
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,
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.
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
November 28, 1993 Dorothy Wisehart died, at which point the
DRW Trust became irrevocable, and AWM was the sole trustee.
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.
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.
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 ...