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Rinker v. Colina-Lee

Court of Appeals of Colorado, Second Division

March 21, 2019

George Rinker, Plaintiff-Appellant,
v.
Lori Rose Colina-Lee, Defendant-Appellee.

          Larimer County District Court No. 15CV30862 Honorable Stephen J. Jouard, Judge

          Herms Herrera LLC, Jeffrey B. Cullers, Fort Collins, Colorado, for Plaintiff-Appellant

          Fischer Brown Bartlett Gunn P.C., Todd W. Rogers, Fort Collins, Colorado, for Defendant-Appellee

          OPINION

          LIPINSK, YJUDGE

         ¶ 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.

         I. The Dispute Between the Residents of Galena Court

         A. 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 Galena Court.

         ¶ 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 against Brewen.

         ¶ 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.

         B. The 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 owners.

          ¶ 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 trial date.

         C. The 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.

         D. 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.

         II. The 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.

         A. 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 ...


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