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Mindock v. Dumars

United States District Court, D. Colorado

May 20, 2019

DAVID MINDOCK and ASPEN GLADE LTD., a Colorado limited liability company, Plaintiffs,



         This matter is before the Court on three motions of defendant Christina Bruff Dumars (“Christina”). First, Christina moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6), ECF No. 13. Plaintiffs Aspen Glade, Ltd. (“Aspen Glade”) and David Mindock (“David”) responded to this motion, ECF No. 17, and Christina replied, ECF No. 24. Matthew J. Bruff (“Matthew”) was a defendant when Christina filed her motions but has since been realigned as a plaintiff upon stipulation of the parties. ECF No. 40. Second, Christina moved for judgment on the pleadings or dismissal with prejudice based on plaintiffs' untimely responsive pleadings, ECF No. 14, the same plaintiffs opposed this motion, ECF No. 16, and Christina replied, ECF No. 22. Christina also moved to strike the two untimely responses filed by plaintiffs Aspen Glade and David to her motions, ECF No. 17 and ECF No. 19. ECF No. 21. To the extent this motion seeks to strike ECF No. 19, which is their response to a motion that has since become moot, it is also now moot. For the reasons explained herein all three motions, ECF Nos. 13, 14, 21 are DENIED.


         This case concerns a dispute among family members who inherited a cabin in Summit County. The property at issue is located at 603 97 Circle, Blue River, CO 80424 and described as “Site 379, The '97 Subdivision, Blue River Estates, Inc., Blue River, Colorado” (the “property”). In 1974, Stephen and June Mindock (“Stephen and June”) purchased the property as tenants in common. Complaint, ECF No. 2 at ¶ 12. Stephen and June had three children, Peter J. Mindock (“Peter”), David Mindock (“David”), and Stephanie Mindock, now known as Stephanie Williams (“Stephanie”). Id. Christina and Matthew are the two children of Stephanie and accordingly, the grandchildren of Stephen and June. Id. at ¶ 14. In 1987, Stephen and June conveyed 15/64th of the property by quitclaim deed to Peter and another 15/64th of the property to David and reserved a life estate in the portion of the Property that they conveyed. Id. at ¶ 13. Peter and David owned this portion of the property as tenants in common with their parents. Id.

         In 2007, Stephen and June conveyed all their interest in the property by warranty deed to Christina and Matthew (the “2007 deed”). Id. at ¶ 15. The 2007 deed conveyed fee simple ownership in Christina and Matthew as joint tenants with a right of survivorship with respect to 53.12% of the property. Id. at ¶ 21. This made Christina and Matthew tenants-in-common with David and Peter with respect to the remaining 46.88% of the property. Id. The 2007 deed contains a restrictive condition that has provoked disagreement among the parties and forms the basis of this action:

This conveyance to Christina J. Bruff DuMars and Matthew J. Bruff is a conveyance creating a Joint Tenancy in fee simple title with title as Joint Tenants, with a right of survivorship (“Joint Tenants”), and not as tenants in common, subject to easements and covenants of record. This conveyance is intended to maintain joint ownership of the Property within the Mindock Family through the grandchildren who are joint grantees under the Warranty Deed, but in way no [sic] constitutes a restraint on alienation by the remaining grantee-title holder if the below described condition is effectuated by operation of law:
If either Joint Tenant, without the written consent of the other, attempts to a) partition the property, or b) convert this joint tenancy into a tenancy in common with respect to any interest conveyed by this Warranty Deed or other interest in the Property currently owned or subsequently acquired by such Joint Tenant, then the Property shall, by operation of law, revert to the other Joint Tenant in fee simple immediately without requirement of judicial intervention or further legal conveyance.

Id. at 14-15. Plaintiffs believe that Christina drafted this deed, and that this clause is an unreasonable restrain on alienation. Id. at ¶¶ 19, 23.

         In September 2014, Peter conveyed his interest in the property by quitclaim deed to plaintiff Aspen Glade Ltd., a Colorado limited liability company. Id. at ¶ 17. Aspen Glade is comprised of two members: Matthew and his wife. Id. Unable to resolve the disagreement about the deed clause, David and Aspen Glade filed suit against Christina Bruff Dumars and Matthew Bruff in the District Court of Summit County, Colorado requesting a declaratory judgment pursuant to Colo. Rev. Stat. §§ 13-51-101 et seq. and Colo. R. Civ. P. 57 on the enforceability of the restrictive conditions contained in a 2007 deed. Christina removed the action to this Court pursuant to 28 U.S.C. §§ 1332(a), 1441(b) & 1446. Initially, there was not complete diversity among the parties: David, Aspen Glade and Matthew are residents of Colorado and Christina is a resident of New Mexico. ECF No. 2 at ¶¶ 1-4. Accordingly, Plaintiffs moved to remand. ECF No. 15. However, given Matthew's relationship to Aspen Glade and his apparent shared interests with David and Aspen Glade in invalidating the restrictive conditions, Christina filed a motion to dismiss Matthew or realign him as a plaintiff. ECF No. 12. Both of these motions became moot upon the parties' stipulation to realign Matthew as an involuntary plaintiff. ECF Nos. 40, 44. This party realignment created complete diversity, and this Court has jurisdiction pursuant to 28 U.S.C. § 1332.

         A. Defendant's Motions About Plaintiffs' Late Filings: ECF No. 14, 21.

         Christina's motion for judgment on the pleadings or an order of dismissal with prejudice asserts that plaintiffs have failed to appear in the case or to file timely responses to Christina's motions.[1] ECF No. 14 at 2. Plaintiffs respond that they have appeared, and that they conferred with Christina about resolving the issues of removal and remand prior to their filing of a responsive pleading on the merits. ECF No. 16. Within days of Christina's motion for judgment on the pleadings or dismissal, plaintiffs filed responsive pleadings; and Christina identifies no prejudice from their untimely filings. There is a “strong predisposition to resolve cases on their merits, ” Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992) (internal quotations and citations omitted). Because dismissal with prejudice defeats a litigant's right to access the courts, it is “an extreme sanction.” Id. A responsive filing that is untimely by one week does not justify dismissal of this case with prejudice.

         Christina revisits this issue in a separate motion to strike plaintiffs' response to her motion to dismiss as untimely. ECF No. 21. Christina denies that plaintiffs conferred with her about an extension of time to respond to the motion to dismiss. Id. at 4. Given that the parties were concurrently disputing removal and remand, it seems that there was some sort of misunderstanding in the conferral. Nevertheless, Christina does not identify any prejudice resulting from a one-week delay in the filing of a responsive pleading to her second motion. Thus, these motions are denied. Moving forward, I advise defendant to focus her motions, if any, on the substance of this case and to review my practice standards regarding page limits. I advise plaintiffs to file on time.

         B. Motion to Dismiss for Lack of Standing.

         Christina moves to dismiss this lawsuit under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Under rule 12(b)(1) she argues that plaintiffs Aspen Glade and David Mindock do not have standing to challenge the 2007 deed because it does not affect their legal rights. However, in this motion, Christina acknowledges that Matthew's interests are affected by the challenged deed clause. ECF No. 13 at 7. Given the parties' stipulation to realign Matthew as a plaintiff, ECF No. 40, a finding that Aspen Glade and David do not have standing would no longer ...

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