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Lipin v. Wisehart Springs Inn, Inc.

United States District Court, D. Colorado

January 3, 2020

JOAN CAROL LIPIN, Plaintiff,
v.
WISEHART SPRINGS INN, INC.; ARTHUR D. WISEHART, in his individual capacity, and in his capacity as President and “Alter-Ego” of Wisehart Springs Inn, Inc.; MARK APELMAN; DEBBIE GRIFFITH, in her official capacity as Delta County Assessor; REBECCA W. GEYER; ELLEN E. WISEHART; RICHARD HUNTER KREYCIK; and ERIN M. JAMESON, Defendants.

          ORDER

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE

         This order addresses (1) the Wisehart defendants' motion to dismiss and impose filing restrictions on plaintiff; (2) plaintiff's motion to disqualify attorney Mark Apelman and his law firm; (3) defendant Geyer's motion to dismiss; and (4) defendant Griffith's motion to dismiss. Plaintiff's motion is denied, but the defendants' motions are granted.

         BACKGROUND

         In this case Joan C. Lipin claims, among other things, that Arthur D. Wisehart, Ellen E. Wisehart, Richard Hunter Kreycik, and Erin M. Jameson have operated the Wisehart Springs Inn in Paonia, Colorado as a cover for illegal narcotics trafficking and money laundering. I refer to these five defendants as the “Wisehart defendants.” Defendant Mark Apelman is the Wisehart defendants' attorney. Rebecca Geyer is an Indiana-based lawyer who provided expert opinions in a previous lawsuit. Debbie Griffith is the Delta County Assessor. Ms. Lipin's Amended Complaint asserts violations of RICO and other wrongs.

         However, these claims cannot be understood or determined without knowing the context in which they are asserted. I provide that context by taking judicial notice of two other lawsuits in this district and one in state court involving Ms. Lipin and the Wiseharts.

         Lipin v. Wisehart I

         On March 21, 2016 Ms. Lipin sued the same Wisehart defendants, minus the Wisehart Springs Inn, concerning the same property in Paonia, Colorado that is the subject of the present case. Ultimately, I granted summary judgment in defendants' favor, Lipin v. Wisehart, No. 16-cv-00661-RBJ-STV, 2018 WL 828024 (D. Colo. Feb. 9, 2018). That decision was affirmed by the Tenth Circuit in Lipin v. Wisehart, 760 Fed.Appx. 626 (10th Cir. 2019) (unpublished). I will refer to that case as Lipin v. Wisehart I.

         The pertinent facts, taken from Lipin v. Wisehart I, began in 1987 when Dorothy Wisehart created the Dorothy R. Wisehart Trust (the Trust). She named herself and her son, Arthur McKee Wisehart (“AMW”) as co-trustees. As described by the Tenth Circuit,

She intended for the Trust assets to qualify for the $1 million “Generation Skipping Transfer Exclusion” for federal estate tax purposes and therefore directed in the Trust Agreement that $1 million would remain in the Trust upon her death . . . and that AMW's children and his wife, Elizabeth, would become income beneficiaries of income from these assets.

760 Fed.Appx. at 629.

         AMW had four children: Arthur Dodson Wisehart (“ADW”), Ellen Wisehart, Winston Wisehart, and William Wisehart. In 1992 his daughter Ellen Wisehart and her husband, Richard Kreycik, bought the property in Paonia, Colorado that ultimately has become the subject of all this litigation. They did so through a trust called the Morning Sun Farm Trust. The property consists of four parcels of land. The Wisehart Springs Inn is located on the land.

         In 1993 Dorothy Wisehart died. AMW became the sole Trustee of the Trust. AMW's wife, Elizabeth, and four children (ADW, Ellen, Winston and William) became income beneficiaries of the Trust.

         In 1995 Ellen and her husband Richard quitclaimed the Paonia property to the Trust. At that time there was still debt on the property. In 1996 AMW assumed responsibility for that debt (which might explain some of the things that happened later). The debt was paid, but it is unclear where the funds came from.

         In 2009 four of the five income beneficiaries of the Trust, exercising authority granted in the Trust Agreement, removed AMW as the sole trustee of the Trust and appointed AMW and ADW as co-trustees. AMW and ADW accepted their appointments as co-trustees.

         In 2013 AMW's wife, Elizabeth, died. At that time ADW and his wife, Erin, and Ellen Wisehart and her husband, Richard, lived on the property. ADW and Erin operated the Wisehart Springs Inn.

         In 2015 AMW married Joan C. Lipin. AMW was a lawyer of many years' experience. Ms. Lipin was his former client and paralegal. The Tenth Circuit described Joan as having “nearly two decades of experience as an active pro se litigant in federal and state courts in the Northeast.” 760 Fed.Appx. at 630. Ms. Lipin has indicated that she is a law school graduate.” Id.

         In 2015, shortly after marrying Joan Lipin, AMW sued his son ADW, his son Winston, and the Wisehart Springs Inn in federal court in New Jersey. He alleged that the defendants had conspired to steal property from him, including the Paonia property, in violation of RICO. That lawsuit was later transferred to this district. I will come back to it later.

         Still in 2015 AMW recorded two notices in the real estate records of Delta County, Colorado in which he stated (incorrectly) that he was the sole trustee of the Trust, and (incorrectly) that the Trust had transferred the Paonia property to him by warranty deed.

         In January 2016, AMW (or Ms. Lipin) recorded four quit-claim deeds, one for each of the four parcels of the Paonia property, purporting to convey the parcels to Ms. Lipin. In February 2016 Ms. Lipin informed the defendants that they were trespassing; that they were illegally operating the Wisehart Springs Inn; and that she planned to sell at least three of the four parcels.

         On March 16, 2016 ADW filed a lawsuit against AMW and Ms. Lipin in the Delta District Court seeking declarations that the Trust owned the property. Five days later, on March 21, 2016, Ms. Lipin filed Lipin v. Wisehart I in this court. She sought equitable relief, essentially to eject ADW, Erin, Ellen and Richard from the Paonia property.

         On February 9, 2018 I granted summary judgment in favor of the defendants. 2019 WL 828024 at *3. I found that Ms. Lipin had provided “no evidence that there was anything flawed or invalid about the Appointment of Co-Trustee Document.” Id. I further found that AMW had no right as Co-Trustee to convey the Paonia property without the signature of the other Co-Trustee, much less to convey it to himself. Id. Thus, I concluded that “Ms. Lipin has no interest in the Property. The Property continues to belong to the DRW Trust.” Id.

         Ms. Lipin appealed. The Tenth Circuit affirmed the grant of summary judgment in favor of the defendants. Defendants requested sanctions against Ms. Lipin. The court stated, “We have no difficulty concluding Lipin's appeals are frivolous under Rule 38.” 760 Fed.Appx. at 637. However, because “the person who may be subject to sanctions must receive notice that sanctions are being considered and an opportunity to respond, ” the court granted Ms. Lipin fifteen days to show cause as to why she should not be sanctioned. Id.

         Ms. Lipin did not show cause. On March 4, 2019 the Tenth Circuit imposed sanctions. Lipin v. Wisehart, et al., Nos. 18-1060 and 18-1176, slip op. at 2 (10th Cir. March 4, 2009). On May 15, 2019 the Tenth Circuit remanded the case to this Court with directions to reduce the $15, 000 sanctions order to judgment (including interest on any unpaid portion) and indicating that further appeals by Ms. Lipin would be summarily dismissed unless she submits proof of payment of the sanctions judgment. ECF No. 142. I issued the judgment as directed and, in doing so, ordered that a $10, 000 cost bond held in the court registry plus accumulated interest would ...


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