United States District Court, D. Colorado
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
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.
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.
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.
v. Wisehart I
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760 Fed.Appx. 626 (10th Cir. 2019) (unpublished).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.
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.
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.
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
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
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
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
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.
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.
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
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.
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.
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.
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.
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 ...