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Wisehart v. Wisehart

United States District Court, D. Colorado

March 5, 2019

ARTHUR MCKEE WISEHART, Plaintiff,
v.
ARTHUR DODSON WISEHART, WISEHART SPRINGS INN, and CHARLES WINSTON WISEHART, Defendants.

          OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          Marcia S. Krieger, United States District Judge.

         THIS MATTER comes before the Court on the Plaintiff's Motion for Summary Judgment (# 127), the Defendants' Response (# 173), and the Plaintiff's Reply (# 175). For the following reasons, the Motion is denied.

         I. JURISDICTION

         The Court has jurisdiction under 28 U.S.C. § 1331 and § 1332.

         II. BACKGROUND

         Only a summary of certain facts is relevant for resolution of the pending motion. Plaintiff Arthur McKee Wisehart[1] is the father of both Defendants Arthur Dodson Wisehart and Charles Winston Wisehart. Because all these parties share the same surname, they will be identified by their roles in this lawsuit - the Plaintiff and the Defendants.

         The dispute arises from issues of ownership of certain real property in Paonia, Colorado on which the Wisehart Springs Inn sits. The Complaint alleges that contrary to the Plaintiff's ownership interest[2] in the property, the Defendants are operating and advertising the Wisehart Springs Inn as a family owned Bed and Breakfast.

         The Complaint asserts three claims: two under various provisions of the Racketeer Influence and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, based on the predicate offenses of “fraudulent concealment” and “fraud and deceit” (# 43 at 34, 45), and a third cause of action for unjust enrichment.

         The Plaintiff moves for summary judgment on all claims (# 127). The Defendants moved to strike the Motion as violative of the Court's rules (# 147). The Court denied the motion to strike (# 177). The Defendants' Response (# 173) mirrors the motion to strike and does not substantively respond to the arguments raised by the Plaintiff.

         III. LEGAL STANDARD

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis OilCo.v.Producer=sGasCo., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. A court then applies the law to the undisputed facts and enters judgment.

         IV. DISCUSSION

         As noted, the Amended Complaint contains three claims for relief - two claims brought pursuant to RICO and an unjust enrichment claim. The Plaintiff seeks summary judgment on all claims, but the Motion is devoid of any mention or support for the claim based on unjust enrichment. ...


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