Mindock v. Dumars

          ORDER ON PENDING MOTIONS

          R. Brooke Jackson United States District Judge

         This matter is before the Court on two motions. First, involuntary-plaintiff Matthew J. Bruff (“Bruff”) moves to dismiss defendant Christina Bruff DuMars' (“DuMars”) counterclaim against him pursuant to Fed.R.Civ.P. Rule 12(b)(6). ECF No. 50. Second, DuMars moves for summary judgment pursuant to Fed.R.Civ.P. 56 and D.C.COLO.LCivR 56.1 seeking to dismiss the complaint filed against her by David Mindock and Aspen Glade Ltd. (“Aspen Glade”). ECF No. 51. For the reasons stated herein, Bruff's motion to dismiss is GRANTED and DuMars' motion for summary judgment is DENIED.

         I. BACKGROUND

         This case arises out of disagreement over ownership interests in a family vacation cabin. In 1974 Stephen and June Mindock purchased and built a cabin on a parcel of land in Blue River, Colorado (the “property”). ECF No. 50 at 2; ECF No. 55-1 at 1. Stephen and June had three children: David Mindock, Peter Mindock, and Stephanie Mindock. ECF No. 50 at 2. In 1987 Stephen and June conveyed 15/64ths of the property each to David and Peter by quitclaim deed (approximately 23.44% each, or 46.88% total), retaining a life estate for themselves. Id. In 2007 Stephen and June conveyed their remaining 53.12% interest in fee simple by warranty deed (the “2007 Deed”) to Stephanie's children-DuMars and Bruff-as joint tenants with rights of survivorship. Id. June died on April 1, 2011, and Stephen died on July 1, 2014. ECF No. 2 ¶ The 2007 Deed states that in conveying the property to their grandchildren DuMars and Bruff, Stephen and June “intended to maintain joint ownership of the Property within the Mindock Family.” ECF No. 50-2 at 1. Accordingly, the 2007 Deed includes the following restrictive conditions:

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.

         On September 8, 2014 Bruff formed Aspen Glade. ECF No. 47 at 9. On September 29, 2014 Peter conveyed his 23.44% property interest by quitclaim deed to Aspen Glade. ECF No. 54 at 2. Peter died in October of 2014. ECF No. 2 ¶ 18. Bruff did not disclose to DuMars the formation of Aspen Glade or the conveyance of Peter's property interest to Aspen Glade. ECF No. 47 at 9. DuMars discovered this information in the spring of 2015 when she accessed the Summit County Assessor's Office to pay property tax. Id. ¶ 10. Aspen Glade conducts no other business beyond holding title to the interests received from Peter. Id. at ¶ 12.

         The current status of the property is as follows: DuMars and Bruff own 53.12% in fee simple as joint tenants; Aspen Glade owns 23.44% as a tenant-in-common; and David owns 23.44% as a tenant-in-common. ECF No. 50-1 at 2. DuMars currently occupies the property and has done so since shortly after execution of the 2007 Deed. ECF No. 51 ¶ 3. Bruff occasionally uses the property as a vacation retreat, and he maintains furniture and personal possessions within the property year-round. Id.

         Procedural Background

         On October 1, 2018 David and Aspen Glade (“the original plaintiffs”) filed a complaint in the District Court for Summit County, Colorado. ECF No. 2. They asserted a single claim against DuMars and Bruff for declaratory judgment that (1) certain clauses in the 2007 Deed constitute unreasonable restraints on alienation and are therefore stricken; (2) DuMars and Bruff together own 34/64ths of the property as joint tenants; (3) DuMars and Bruff are tenants-in-common with David and Aspen Glade; and (4) DuMars and Bruff “have the right to unilaterally convey and convert their respective shares from joint tenancy to tenancy-in-common, the right to obtain additional interests in the Property, and the right to partition the Property under Colorado law without penalty.” Id. ¶ 51.

         DuMars removed the case to federal court on December 17, 2018 pursuant to 28 U.S.C. §§ 1332(a), 1441(b), & 1446. ECF No. 1 ¶ 1. On May 14, 2019, pursuant to joint stipulation by the parties, this Court realigned Bruff as an involuntary plaintiff. ECF Nos. 40, 44.

         On June 27, 2019 DuMars, now as sole named defendant, filed a counterclaim against involuntary-plaintiff Bruff for breach of shifting executory interest. ECF No. 47 at 8. She asserts that “[t]he secretive and willful actions taken by [Bruff] violate the 2007 Deed Clause because he received an additional interest in the [property] without the written consent of [DuMars]” by “cloaking himself in the alter-ego guise of Aspen Glade.” Id. at 10. DuMars asks the court to find that as a result of this violation, Bruff's interest in the property has reverted by operation of law to DuMars. Id. at 10-11.

         In response, Bruff filed a motion to dismiss DuMars' counterclaim against him on June 24, 2019. ECF No. 50. On June 27, 2019 DuMars filed a motion for summary judgment seeking dismissal of the complaint under the seven-year statute of limitation provided in Colo. Rev. Stat. Ann. § 38-41-111. ECF No. 51.

         In this order I address both Bruff's motion to dismiss and DuMars' motion for summary judgment.

         II. STANDARD OF REVIEW

         A. Motion for Summary Judgment

         The Court may grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A fact is material “if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The Court will examine the factual record and make reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).

         B. Motion to Dismiss

         To survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See Twombly, 550 U.S. at 556. “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether ...