United States District Court, D. Colorado
DAVID MINDOCK and ASPEN GLADE LTD., a Colorado limited liability company, Plaintiffs,
CHRISTINA J. BRUFF DUMARS, and MATTHEW J. BRUFF, Defendants.
ORDER ON PENDING MOTIONS
Brooke Jackson United States District Judge
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.
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
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.
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.
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.
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.
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.
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.
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.
order I address both Bruff's motion to dismiss and
DuMars' motion for summary judgment.
STANDARD OF REVIEW
Motion for Summary Judgment
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
Motion to Dismiss
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 ...