Larimer County District Court No. 15CV30862 Honorable Stephen
J. Jouard, Judge
Herrera LLC, Jeffrey B. Cullers, Fort Collins, Colorado, for
Fischer Brown Bartlett Gunn P.C., Todd W. Rogers, Fort
Collins, Colorado, for Defendant-Appellee
1 Plaintiff-appellant, George Rinker, and defendant-appellee,
Lori Rose Colina-Lee, are neighbors in the semirural
subdivision of Soldier Canyon Estates in Larimer County.
Their dispute centers on a culvert that Rinker installed to
prevent runoff from draining onto his property. Colina-Lee
contends that Rinker breached the neighbors' road
maintenance agreement when he installed the culvert.
2 Rinker appeals the district court's orders granting
Colina-Lee leave to assert counterclaims, denying his motion
for leave to join the Galena Court Property Owners'
Association (the Association) as a defendant, and entering an
injunction requiring Rinker to unblock the culvert.
3 We affirm the district court's rulings and hold (1) the
merits of a district court's sua sponte ruling are
reviewable on appeal, regardless of whether any party
contemporaneously objected to it; (2) an unincorporated
association is not a necessary party in a case involving
interpretation of its founding document; and (3) a finding of
irreparable harm is not a prerequisite for entering a
permanent injunction to protect an easement.
Dispute Between the Residents of Galena Court
Rinker Installs the Culvert
4 Galena Court, an unpaved roadway, serves six lots in
Soldier Canyon Estates. The households residing on Galena
Court entered into the Galena Court Property Owners'
Association Road Maintenance Agreement (the Agreement). The
Agreement established the Association and required the
homeowners to pay annual dues to fund the maintenance of
5 Shortly after purchasing his property on Galena Court,
Rinker installed a culvert along the front of his driveway to
divert the natural runoff from the land above his home. More
than a decade later, Jaeson Brewen, another resident of
Galena Court, reshaped a portion of Galena Court uphill from
Rinker's property. As part of this work, Brewen placed
recycled asphalt material on Galena Court. He also increased
the grade and altered the contour of Galena Court. These
changes caused sediment and asphalt particles to run through
the culvert and to collect on Rinker's front yard.
6 In addition, the Association changed the shape of the
section of Galena Court uphill from Rinker's property.
Rinker contended that the new shape of Galena Court
exacerbated the deposits of asphalt onto his yard and
increased the difficulty of accessing his property.
7 Rinker complained to the Association about the asphalt
particles that were washing down from Galena Court, through
the culvert, and onto his front yard. Although the
Association installed a filtration system to attempt to
protect Rinker's property from the runoff, polluted water
continued to flow from Galena Court onto Rinker's front
yard. Rinker tried unsuccessfully to fix the drainage problem
by installing filters over the culvert.
8 When these solutions proved ineffective, Rinker blocked the
culvert to protect his property from further sediment damage.
The blocked culvert caused road sediment to flow onto, and to
erode, Galena Court. Larimer County demanded that Rinker
unblock the culvert, asserting that the blocked culvert
restricted "the flow of water in the road-side ditch,
causing it to overflow the traveled way."
9 Rinker filed an action against Larimer County and Brewen.
Rinker asked the district court to enter (1) a declaratory
judgment that Larimer County lacked jurisdiction over Galena
Court because it was not a public right-of-way and (2) an
injunction barring Larimer County from altering Rinker's
property or any part of Galena Court adjacent to Rinker's
property. In addition, Rinker asserted a trespass claim
10 Larimer County filed a counterclaim for an injunction
requiring Rinker to remove the obstructions he had placed on
Galena Court and in or near the culvert. The County also
sought an injunction prohibiting Rinker from placing any
additional obstructions on Galena Court or otherwise
interfering with Larimer County's authority over Galena
Court. Brewen asserted a counterclaim for a mandatory
injunction compelling Rinker to remove the obstacles and to
restore the surface of Galena Court.
District Court Grants Colina-Lee Leave to File Counterclaims
11 Larimer County moved for an order requiring Rinker to join
all the property owners in the Soldier Canyon Estates
subdivision as necessary parties pursuant to C.R.C.P. 19.
After the district court granted the motion, Rinker filed an
amended complaint that included claims against all the
Soldier Canyon Estates property owners, including Colina-Lee
and the other owners of property adjoining Galena Court. In
her answer, Colina-Lee pleaded, as an affirmative defense,
that Rinker had breached the Agreement.
12 As the trial date approached, Larimer Country vacated the
public right-of-way on Galena Court. Rinker then settled with
Larimer County and Brewen. As part of the settlements, Rinker
agreed to dismiss his claims against Larimer County and
Brewen, who agreed to dismiss their counterclaims. Rinker and
Brewen further agreed to the entry of a stipulated judgment
that, among other provisions, required Rinker to remediate
portions of Galena Court that his culvert had damaged. The
stipulated judgment, however, would have granted Rinker
authority to alter Galena Court without consulting the other
owners of property adjoining Galena Court. In light of his
settlements with Larimer County and Brewen, Rinker asked the
district court to dismiss his claims against the property
13 Colina-Lee objected to the dismissal motion and the
proposed stipulated judgment, which she contended would
adversely affect her interest in Galena Court. She argued
that, regardless of Rinker's settlements with Larimer
County and Brewen, the proposed stipulated judgment would
give Rinker authority to alter Galena Court without the
approval of the remaining Galena Court property owners, in
violation of the Agreement. Colina-Lee requested a pretrial
conference to clarify which issues, claims, and parties
remained for trial.
14 At the pretrial conference, counsel for Colina-Lee orally
moved for leave to amend her answer to assert counterclaims
for breach of the Agreement. Without providing Rinker with an
opportunity to address Colina-Lee's motion, the district
court granted the motion from the bench. The district court
found that Colina-Lee should be permitted to assert a
cross-claim or counterclaim in light of the significant
change in the posture of the case as a consequence of
Rinker's settlements with Larimer County and Brewen. The
district court then asked counsel for Rinker whether he had
anything further to say. Counsel for Rinker said that,
because the district court had already granted
Colina-Lee's motion, Rinker would not present any
arguments in opposition to the motion for leave to amend.
15 Rinker subsequently moved for reconsideration of the
district court's ruling granting Colina-Lee leave to
amend. In his motion for reconsideration, Rinker argued for
the first time that (1) Colina-Lee had waited too long to
plead her new claims; (2) she had no valid excuse for
asserting an untimely motion for leave to amend; and (3) the
assertion of Colina-Lee's new claims would be highly
prejudicial to Rinker. The district court summarily denied
Rinker's motion for reconsideration.
16 In her counterclaims, Colina-Lee sought (1) an injunction
requiring Rinker to comply with the Agreement and to open the
blocked culvert and (2) a declaratory judgment that, under
the Agreement, Rinker had no right to make unilateral changes
to Galena Court without the approval of the other Galena
Court property owners. After Rinker filed his answer to
Colina-Lee's counterclaims, the district court set a new
District Court Denies Rinker's Motion for Leave to Amend
17 Rinker moved for leave to amend his complaint two months
before trial. Rinker sought to join the Association as a
defendant and to assert claims against the Association for
nuisance and trespass. He also requested leave to add a claim
for a declaratory judgment stating that the Agreement
required the Association to maintain Galena Court.
18 The district court denied Rinker's motion for leave to
amend, finding that (1) the Association was not a necessary
party, contrary to Rinker's contention; (2) an amendment
adding claims against a new party would require vacating the
new trial date; and (3) Rinker had not shown good cause for
amending his complaint.
Colina-Lee Prevails at Trial
19 At the conclusion of the trial, the district court granted
the relief that Colina-Lee had requested. It entered an
injunction requiring Rinker to unblock the culvert. (Although
the district court's order also requires Rinker to
restore the culvert to its original location, the record does
not reflect from where Rinker had moved the culvert.)
20 The district court also entered a declaratory judgment
stating that (1) each property owner has the right to enforce
the Agreement; (2) the Agreement governs the repair,
maintenance, and improvement of Galena Court; (3) the
Association is responsible for maintaining Galena Court; (4)
the Association is responsible for any improvements to Galena
Court; (5) pursuant to the Agreement, the property owners
must avoid damaging or degrading Galena Court beyond the wear
due to normal usage; and (6) the Agreement does not otherwise
impair or limit the property owners' use of their
respective properties. Rinker filed this appeal.
District Court Did Not Abuse Its Discretion in Granting
Colina-Lee's Motion for Leave to Amend
21 Rinker contends that the district court erred in granting
Colina-Lee leave to assert counterclaims against him. He
argues that Colina-Lee's motion was untimely and
prejudicial. We disagree.
Rinker's Opposition to Colina-Lee's Motion Is
Properly Before Us on Appeal
22 Before reviewing the merits of Rinker's opposition to
Colina-Lee's motion for leave to amend, we consider
whether Rinker's arguments against Colina-Lee's
motion are properly before us. The parties did not brief
whether Rinker preserved those arguments for appeal.
Preservation is a threshold question. People v.
Bondsteel, 2015 COA 165, ¶ 6, ___ P.3d ___, ___
(cert. granted Oct. 31, 2016). We do not review
issues that have been insufficiently preserved. Liberty
Bankers Life Ins. Co. v. First Citizens Bank & Tr.
Co., 2014 COA 151, ¶ 25, 411 P.3d 111, 118.
23 We conclude that we may review the issue given the
circumstances under which the district court granted
Colina-Lee's motion. Without advance notice to the
district court or to Rinker, at the pretrial conference,
Colina-Lee orally moved for leave to assert counterclaims.
Following a brief colloquy with counsel for Colina-Lee, and
without asking for Rinker's position on the motion, the
district court granted Colina-Lee leave to "file an
amended pleading to assert whatever cross-claims or
counterclaims she deems appropriate."
24 Before issuing its ruling, the district court never gave
Rinker a timely opportunity to be heard on the matter. Only
after granting the motion did the district court ask