United States District Court, D. Colorado
ERYN R. MEGNA, ROBERT V. MEGNA, and BACKSTREET BISTRO, LLC, Plaintiffs,
v.
LITTLE SWITZERLAND OF AMERICA CANDY FACTORY, INC., KRISTINE M. ULLEMEYER, and HAYES ULLEMEYER, Defendants.
ORDER
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Defendants' motion for
summary judgment on Plaintiffs' claims against them (ECF
No. 91) and Plaintiffs' motion for summary judgment on
Defendants' counterclaims (ECF No. 92). The motions have
been fully briefed and are ripe for review. (ECF Nos. 101,
105, 109, 111.) For the reasons below, Defendants' motion
is denied for the most part, and Plaintiffs' motion is
denied in its entirety.
I.
LEGAL STANDARDS
Summary
judgment is appropriate only if there is no genuine dispute
of material fact and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Gutteridge v.
Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Whether
there is a genuine dispute as to a material fact depends on
whether the evidence presents a sufficient disagreement to
require submission to a jury or is so one-sided that one
party must prevail as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986);
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000). “The mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of
material fact.” Scott v. Harris, 550
U.S. 372, 380 (2007) (quotation omitted). A fact is
“material” if it pertains to an element of a
claim or defense, and a factual dispute is
“genuine” if the evidence is so contradictory
that if the matter went to trial, a reasonable jury could
return a verdict for either party. Anderson, 477
U.S. at 248.
II.
BACKGROUND
The
B&B Condominium Complex consists of two buildings, one
owned by Defendant Little Switzerland of America Candy
Factory, Inc. (“Little Switzerland”) and one
owned by Plaintiff Backstreet Bistro, LLC, and some common
areas. The complex is subject to restrictive covenants that
can be revoked only with the consent of all the owners.
Defendants Kristine and Hayes Ullemeyer and the previous
owners of Plaintiffs' building informally agreed to
divide portions of the common areas into “designated
areas” for each building. A fence was installed to
enclose the Ullemeyer's designated area, and the previous
owners of Plaintiffs' building built a deck in their
designated area; however, no changes were made to the
restrictive covenants. When Plaintiffs Eryn and Robert Megna
purchased their building, the Ullemeyers' building was
being leased to tenants.
This
dispute arose after the Megnas had a heat exhaust blower
installed on the outside of their building in a common area
that is part of the Ullemeyers' designated area. The
parties did not discuss the installation beforehand. State
and local regulations require a blower to operate a
restaurant, and a building inspector told the Megnas that the
blower could be installed only in its current location. The
Ullemeyres allege that the exhaust from the blower “has
a strong and unpleasant odor, ” that the blower
“creates a continuous noise whenever in operation,
” and that the blower “presents an unsightly,
offensive and obnoxious appearance which is clearly visible
from” their building. (ECF No. 43 at ¶ 23.)
Interactions
between the Megnas and Ullemeyers did not begin well. Mr.
Megna, who is black, saw Ms. Ullemeyer, who is white, walking
around the complex and introduced himself.[1]Plaintiffs allege
that Ms. Ullemeyer “immediately responded by telling
Mr. Megna, in a markedly hostile and aggressive tone, to get
his ‘fucking chairs' off of her ‘fucking
building.'” (ECF No. 25 at ¶ 48.) After Mr.
Megna moved the offending chairs, Ms. Megna introduced
herself to Ms. Ullemeyer. Ms. Ullemeyer responded to her by
saying that she needed to move her blower because it was
ugly. Mr. Megna and Mr. Ullemeyer also discussed the blower
at some point.[2] Plaintiffs allege that during that
discussion Mr. Ullemeyer used the word “boy” to
address Mr. Megna and threatened legal action if the blower
was not moved. Defendants contend that Mr. Ullemeyer never
used the word “boy, ” and alternatively that even
if he did, he did not use it to imply racial animus against
Mr. Megna. On another occasion, Ms. Ullemeyer waited outside
the Megnas' restaurant while her friend went in to
complain about the blower. Mr. Megna told the friend she
would have to speak with their lawyer.
In the
months that followed, the parties' lawyers attempted
without success to resolve the dispute. The Ullemeyers then
filed a lawsuit in state court. The Ullemeyers alleged that
the blower was installed in violation of the restrictive
covenants and that it was causing a nuisance. After the state
court denied the Megnas leave to add counterclaims under 42
U.S.C. §§ 1981, 1982, and 1983, Plaintiffs filed
this lawsuit in federal court, and all proceedings in the
state lawsuit were stayed.
Plaintiffs
assert ten claims against Defendants, including violations of
their rights under § 1982, violations of their rights
under 42 U.S.C. § 1985(3), violation of the Common
Interest Ownership Act (“CIOA”), conversion,
private nuisance, and breach of covenants. (ECF No. 25.)
Defendants assert four counterclaims for nuisance, violation
of restrictive covenants, injunctive relief, and declaratory
relief. (ECF No. 43.) Both sides seek summary judgment on the
claims against them.
III.
ANALYSIS
A.
Defendants' Motion for Summary Judgment
Defendants
argue they are entitled to summary judgment on the claims
against them because (1) there is insufficient evidence of
racial discrimination to support a § 1982 claim and
Plaintiffs cannot show that Defendants interfered with their
use of property; (2) Plaintiffs cannot establish a
conspiracy; (3) the CIOA does not apply to the restrictive
covenants; (4) there is no genuine dispute supporting a
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