DISTRICT COURT, EAGLE COUNTY STATE OF COLORADO EFILED … · 22. Upon information and belief, the Homestead association newsletter from July 2011 states that Homestead and the County

DISTRICT COURT, EAGLE COUNTY STATE OF COLORADO 885 Chambers Avenue P.O. Box 597 Eagle, Colorado 81631 (970) 328-6328

Plaintiffs:

BARBARA ALLEN and WESLEY ALLEN

FAMILY LP,

v.

Defendant:

THE HOMESTEAD OWNERS ASSOCIATION,

INC., a Colorado nonprofit corporation.

Attorney for Plaintiffs: Name: James C. Plott, Atty. Reg. # 35985 Address: P.O. Box 211 69 Edwards Access Rd. Ste. 11C Edwards, CO 81632 Phone: (970) 763-7466 Facsimile: (888) 268-1795 E-mail: [email protected]

COURT USE ONLY

Case Number: ____________

Division:

Courtroom:

COMPLAINT

Plaintiffs Barbara Allen and Wesley Allen Family L.P., through counsel, allege as follows, and seek injunctive relief:

Introduction

This case arises from the attempt to convey an easement by Defendant The

Homestead Owners Association, Inc. (“Homestead”), who has signed a

Memorandum of Understanding with Eagle County (the “County”) that will

grant a permanent easement to the County that will provide the County with a

right of way across an easement owned by Plaintiffs. Homestead’s actions

EFILED Document CO Eagle County District Court 5th JD Filing Date: Dec 8 2011 10:12AM MST Filing ID: 41289917 Review Clerk: Evelyn Case

2

constitute a serious violation of the restrictive covenants contained in the

easement granted to Plaintiffs and will permanently damage Plaintiffs.

Parties

1. Defendant The Homestead Owners Association, Inc. is a Colorado

nonprofit corporation with its principle place of business in Eagle County,

Colorado.

2. Plaintiff Barbara Allen is a resident of Eagle County, Colorado.

3. Plaintiff the Wesley Allen Family LP is a domestic limited

partnership in the state of Texas, with a principle place of business in Travis

County.

4. Collectively, the Plaintiffs are referred to as “Allen” or “the Allens.”

Jurisdiction and Venue

5. Jurisdiction is appropriate as the Court is a court of general

jurisdiction.

6. Venue is appropriate under C.R.C.P. 98 as the defendant and

affected properties are located in Eagle County, Colorado.

General Allegations

7. On March 1, 1996, Homestead and the Allens entered into a

settlement agreement and Easement that settled case nos. 94-CV-214 and 95-

CV126 in the Eagle County District Court. (See Ex. 1, Easement.)

8. The Allens are record owners of an 80 acre parcel southwest of the

Homestead property, more particularly described as parcel number 2105-084-

00-004, Section 8, Township 5, Range 82, SE¼ SW¼-SW¼ SE¼, Eagle

County, Colorado (the property will be referred to as the “Allen Upper 80.”).

3

9. The Easement states that Homestead granted the Allens

a perpetual 50 foot easement, to be used as a right of way for vehicular, equestrian, pedestrian or other forms of travel for which “Mountain Roads” in Eagle County, Colorado (the “County”) are customarily used, and for construction of an access road and installation of underground utilities across the [Homestead] Association Open Space, on the property . . . .

(Ex. 1, ¶ 1.)

10. The exclusive Easement further states that “the Easement shall be

for the exclusive, private use of [Homestead] and [the Allens] and for no other

uses except as specified.” (Ex. 1, ¶ 2.)

11. The Easement restricts the use of the Easement “solely to provide

access and utilities to the Allen Upper 80.” (Ex. 1, ¶ 2.1.) The Easement also

allows that “[a]ll guests, licensees, invitees (business or social), employees,

agents, tenants and contractors of [the Allens] shall be permitted to use the

Easement for access to and from the Allen Upper 80 . . . .” (Ex. 1, ¶ 2.1.)

12. The Easement restricts Homestead’s use of the easement in that

“[u]se of the Easement by [Homestead] and its members shall be solely to

provide access to the Association Open Space.” (emphasis added). (Ex. 1, ¶

2.2.)

13. The Easement also restricts further grants of interests in the

Easement as it states that “neither [Homestead] nor [the Allens] may grant any

further interest in the Easement or any improvements constructed thereon to

any third party; provided, however, [the Allens] may, . . . grant easements . . . .”

(Ex. 1, ¶ 2.4.)

4

14. The exclusive Easement permits the Allens to convey the Easement

to Eagle County, but does not permit Homestead to make any further

conveyance, as it “limits the Easement to the exclusive, private use of

[Homestead] and [the Allens], [the Allens] may dedicate the Easement to the

County . . . .” (Ex. 1, ¶ 5.)

15. The Vail Daily, a county-wide newspaper published daily, printed

an article on December 1, 2011, calling attention to Homestead’s putative grant

to Eagle County, and suggesting that action will occur in the next several

weeks. (See Ex. 2.)

16. The December 1, 2011, Vail Daily article illustrates three parcels of

land:

5

17. The yellow parcel in the foregoing illustration is a portion of the

Creamery. (See Ex. 2.)

18. The blue-green parcel in the foregoing illustration is the land

purchased by Eagle County, commonly called East Lake Creek Ranch, from the

Scudder/Webster LLP. (See Ex. 2.)

19. The red parcel in the foregoing illustration is a portion of the

Homestead open space. (See Ex. 2.)

20. The Allen Upper 80 is not defined on the Vail Daily map, but it is a

rectangle to the south of the blue-green parcel (approximately the same width)

and to the west of the Homestead parcel (approximately the same height).

21. The Allen Easement extends from Homestead, traversing through

Homestead open space (the red parcel in the Vail Daily map), and to the corner

of the Allen Upper 80, which is the intersection of the southerly border of the

blue-green parcel and the west border of the red parcel.

22. Upon information and belief, the Homestead association newsletter

from July 2011 states that Homestead and the County have entered into a

“Memorandum of Understanding” (“MOU”) concerning the access Homestead

plans to deliver to the County. (See Ex. 3, p. 1.)

23. Homestead has executed the MOU with the County. (See Ex. 4.)

24. The County has also executed the MOU.

25. The Homestead association has provided a Summary of the MOU,

and the Summary provides that “[u]pon closing and conservation of the [East

Lake Creek Ranch] Property, [Homestead] will grant a permanent easement to

6

County to provide public access across a defined portion of the 120 acres of

[Homestead] open space to USFS land.” (See Ex. 5.)

26. A permanent easement to Eagle County that provides public access

across the 120 acres of Homestead open space referred to in the MOU will

require that the public – and the County – cross the Allen Easement.

27. The platted Allen easement is attached as Exhibit 6.

28. The MOU between Homestead and the County provides that upon

closing, Homestead “will grant a permanent easement to County to provide

public access across an approximately 18 acre strip of open space land that

connects from the Preserve through [Homestead] property to the [East Lake

Creek Ranch] Property.” (Ex. 4, ¶ 5.)

29. Nowhere in the MOU between Homestead and the County is the

Allen Easement addressed or depicted.

30. Homestead does not mention the presence of the Allen Easement

in the MOU.

31. Homestead has not informed its members that its board is acting

ultra vires in attempting to convey an easement in violation of the restrictive

covenants in the Easement.

32. Indeed, according to the map designated Exhibit B and attached to

Exhibit 3, the proposed “Trail to USFS Parcel” must travel along and/or cross

the Allen Easement (which is not depicted on the MOU’s map):

7

(See Ex. 4, map marked as Exhibit B thereupon.)

33. The Easement agreement entered into by Homestead contains

restrictive covenants.

34. One of the restrictive covenants in the Easement expressly restricts

Homestead’s use of the Allen Easement: “Use of the Easement by Grantor and

its members shall be solely to provide access to the Association Open Space.”

35. Homestead plans to allow the entire public on the Allen Easement.

36. Homestead plans to allow the public to access the White River

National Forest, which is United States Forest Service land, via the Allen

Easement.

8

37. Homestead plans to allow its members to access not only

Association Open Space, but also the White River National Forest, via the Allen

Easement.

38. Another restrictive covenant in the Easement expressly provides

that “neither Grantor nor Grantee may grant further interest in the Easement

or any improvements constructed thereon to any third party; . . . .”

39. The MOU states that Homestead plans to convey an easement to

Eagle County that will grant an interest in or across the Allen Easement.

40. Significantly, Homestead has willfully and wantonly compromised

the terms of the settlement agreement and Easement which require that the

“Easement shall be for the exclusive, private use of [Homestead] and [the

Allens] and for no other uses except as specified.” (emphasis added) (Ex. 1, ¶ 2.)

41. Plaintiffs will be subjected to grave harm if Homestead grants Eagle

County an easement that crosses the Allen Easement. (See Ex. 7, Affidavit.)

42. Importantly, the Allens may be subjected to untold liability by

members of the public who become injured on or along the Allen easement.

43. The Allens may also be subject to an additional layer of permitting

and regulations as Eagle County land use regulations prohibit construction

across Eagle County rights of way.

44. Furthermore, the Allens have not decided what the final road and

utility configuration along their easement will be, nor when the road

construction will occur, and Homestead has no way to monitor the public’s use

of the easement. At the present time, there is no determination as to what type

of motorized traffic will use the Allen easement, and there is a significant

9

likelihood that the public will depart the easement or create a danger to the

only authorized traffic on the Easement (that of the Allens, their guests,

licensees, invitees (business or social), employees, agents, tenants and

contractors, and the members of the Homestead Owners Association, but not

the general public).

FIRST CLAIM FOR RELIEF Permanent Injunction

45. Plaintiffs reallege each prior number paragraph.

46. Homestead is violating or attempting to violate the Easement by

violating its restrictive covenants in one or more ways:

a. Homestead is not entitled to make a conveyance that will impair

the Allens’ use of the easement; or

b. Homestead is not entitled to allow the general public to walk

along or across the Allen easement; or

c. Homestead is not entitled to measurably increase the risk that

the Allens are required to insure against because Homestead is

inviting the general public to cross or go along the Allen

Easement (cf. Ex. 1, ¶ 7(a) with ¶ 7(b)).

47. Based on article in the Vail Daily, Plaintiffs are now placed in a

time-sensitive predicament where Homestead has acted willfully, wantonly, and

unilaterally and without any attempt at involving the Allens in what should be

an easily rectifiable situation, forcing the Allens into a corner where the only

recourse is a judicial remedy.

10

48. In the absence of injunctive relief, Plaintiffs will be deprived of

rights which they are entitled under the 1996 settlement agreement and

Easement.

49. Failure of the Defendant to comply with the settlement agreement

and Easement will result in permanent irreparable harm to the Allen

Easement. Indeed, damage has already been done by Defendant’s plans and

attempts to convey the Allen Easement and Plaintiffs are subjected to further

immediate, irreparable harm should a third party be gifted an easement in

violation of the Allens’ property rights.

50. Plaintiffs are likely to succeed on the merits of this case as the

Homestead board of directors is clearly acting ultra vires and in direct violation

of the restrictive covenants of the Easement.

51. There is no plain, speedy, and adequate remedy at law (certainly,

Homestead could have at least tried to involve the Plaintiffs in this matter, but

instead they have elected to act unilaterally and with total disregard for the

Allens’ private property rights).

52. The granting of a preliminary injunction will not disserve the

public interest.

53. The balance of the equities favors an injunction as Homestead

loses nothing as long as its unlawful attempt to convey an easement is

stopped, and conversely, Homestead gains nothing from granting the putative

easement.

54. An injunction will preserve the status quo pending a trial on the

merits (respecting each party’s property rights).


Vail Daily 12/01/2011

All contents © Copyright 2011 Swift 12/01/2011

December 6, 2011 10:32 pm / Powered by TECNAVIA

Copy Reduced to %d%% from original to fit letter page

LOCAL & REGIONSECTION A || PAGE 2 || THURSDAY, 12 • 1 • 11 || 970 • 949 • 0555 || VAILDAILY.COM

‘It’s a

By Scott N. [email protected]

EAGLE COUNTY — This is a good time to be in the open space business.As the local, state and national economies continue to struggle, land trusts

throughout the state are enjoying a good bit of success. A national survey ofopen space preservation between 2005 and 2010 shows that Colorado wasthird in the nation in preserving land — mostly agricultural property — fromfuture development.

The state’s land trusts — nonprofit groups dedicated to land preservation— helped broker deals to keep more than 1.2 million acres of land open dur-ing that period. The Eagle Valley Land Trust had a hand in keeping develop-ment away from 1,300 acres in the county and another 800 acres in Pitkin andGarfield counties — since a pair of the ranches preserved crossed countylines.

The local share of the state’s total doesn’t sound like a lot of land. But EagleValley Land Trust Director Kara Heide said much of the survey period cov-ered a period when land prices were skyrocketing in the county.

“You still need a willing seller to do these deals,” Heide said.“Sale” isn’t exactly the right word for much of what land trusts do. In some

cases, land owners accept money in exchange for a contract, or “easement,”that the land will never be developed. Other owners exchange the rights forfuture development for tax deductions. In either case, owners reap somefinancial benefit, if not the full amount that could come from developingproperty.

Local land trusts help broker those deals, bringing together property own-ers with some combination of local governments and nonprofit groups. InColorado, Great Outdoors Colorado, a state group funded by people buying

By the numbers1.225 million: Acres preserved as open

space in Colorado between 2005 and2010.

53 percent: Increase in the state’spreserved open space.

38: Land trusts now operating in the state.1,300: Acres preserved in Eagle County

open space between 2005 and 2010.350: Acres ready to be preserved locally

in the next several weeks.

SPECIAL TO THE DAILYThe three colored parcels on this map add up to about 325 acres, adjacent to the Homesteadneighborhood in Edwards. The Eagle Valley Land Trust will enforce contracts, or “conservationeasements,” on the parcels, meaning the land can never be developed.

The view from a gate in theHomestead neighborhood in

Edwards out toward part of a parcelthat will be preserved as open space.The Eagle Valley Land Trust will hold

the contract, or “easement,” thatensures the property will never be

developed.

DOMINIQUE TAYLORDaily file photo

Two kinds of preservation• Outright purchase: Eagle County and nonprofit groups

over the years have bought several parcels, such as the EagleRiver Preserve in Edwards and a parcel along the Eagle Rivernear Dotsero. That property is generally open to the public.

• Conservation easements: These are essentiallycontracts with landowners that they won’t develop theiragricultural land in the future. Those easements aresometimes purchased. Other times, the easements providetax benefits to families.

EDWARDS

lottery tickets is also part of the mix when it comes to land preservation.The Eagle Valley Land Trust has been involved in several of those

deals and has four working right now, all in Edwards. The first is 32.5 acres in the Miller Ranch area. A conservation ease-

ment there will put a more permanent layer of protection on the parcel,which is already classified as open space.

The other three are adjacent pieces of land just south of the Home-stead neighborhood and add up to about 325 acres. Two of the three —about 300 acres’ worth — were deals negotiated with private owners.The third was purchased by Eagle County with money from a propertytax that can only be spent on open space.

The easements will all be held by the local land trust.Jason Denhart, of the land trust, said that together, the three parcels will

create a new “front door” to National Forest land for Edwards residents. The fourth parcel includes access to the Eagle River.Heide said land preservation can help the local economy, whether

the public has access to open land or not. Local ranches are oftenimportant parts of wildlife habitat, she said, and state officials estimatethat hunting and fishing bring more than $28 million in revenue toEagle County every year.

“And those seasonal jobs don’t go away,” Heide said. “If you build ahouse, the people who built it don’t have work until the next projectcomes along. These jobs are there year after year.”

Those easements are expected to be finalized early next year.The land trust also is working with a combination of federal, state and

local land owners on a complex land exchange that, if eventually com-pleted, will preserve land that includes the open area between Single-tree in Edwards and Avon’s Wildridge neighborhood. Years in the mak-ing, that exchange could be complete by the end of next year.

Between the land already preserved and other projects on the hori-zon, Denhart said it’s an exciting time to be part of the local land trust.

“There are really positive things happening,” Denhart said. “It’s a realsuccess story.”

Business Editor Scott N. Miller can be reached at 970-748-2930 [email protected].

success story’The Eagle Valley Land Trust ishelping preserve land in atough economy

true

CaseAllen v. The Homestead

Owners Ass'n, Inc.

Exhibit2




Owners Ass'n, Inc.

Exhibit4


1

SUMMARY OF MEMORANDUM OF UNDERSTANDING

A Memorandum of Understanding (“MOU”) is proposed between Eagle County (“County”) and the

Homestead Owners Association (“HOA”).

The MOU contemplates that the parties will work together to develop more formal agreements

concerning (1) access easements; (2) conservation easements; (3) use; and (4) improvements and

maintenance. The MOU will be a partial framework for the future easements and agreements.

County will proceed with the purchase of the East Lake Creek Ranch Property (“ELCR Property”) but

shall reserve all rights available to it under its purchase agreement including, but not limited to, the right

to complete its due diligence, to seek necessary funding approvals and to determine whether to proceed

with the purchase of the ELCR Property.

Uponclosing of the ELCR Property, County and Eagle Valley Land Trust (“EVLT”)will negotiate and

enter intoaconservation easement to preserve the ELCR Property as open space. The conservation

easement will define conservation values and will provide for uses consistent with preservation of the

conservation values. The conservation easement willallow public access and use of the ELCR Property

and further will identify recreational uses and improvements to be allowed on the ELCR Property.

County may retain ownership of the ELCR Property or may transfer title to the Edwards Metropolitan

District or other similar entity. HOA prefers that Eagle County transfer title to Edwards Metropolitan

District. Transfer of title to the ELCR Property shall remain a County decision.

Upon closing and conservation of the ELCR Property, HOA will grant a permanent easement to

Countyto provide public access across a defined portion of the 120 acres of HOA open space to USFS

land.The general location of the proposed trail is depicted onExhibit B. Theintent is to provide public

access from a trail head to be located on the ELCR Property near Cameron Place, across the ELCR parcel

and across the 120 acres of HOA open space to USFS land.Such access shall be subject to all terms and

conditions contained in the access easement granted to the County.

In addition, the HOA will negotiate and enter into a conservation easement with EVLT to permanently

preserve the 120 acresas open space. The conservation easement will define conservation values and will

provide for uses consistent with preservation of the conservation values.The uses to be permitted in the

access easement and conservation easement shall align with the uses allowed in the Amended and

Restated Planned Unit Development Guidelines of Homestead Open Space recorded in the Eagle County

real property records at reception number 680533. All easements described in this paragraph shall be in

such form and substance as is reasonably acceptable to the HOA.

Upon closing and conservation of the ELCR Property, HOA will grant a permanent easement to

Countyto provide public access across an approximately 18 acre strip of open space land that connects

fromthe Preservethrough HOA property to the ELCR Property. The general location of the proposed trail

is depicted on Exhibit C. The approximately 18 acre strip is depicted in red on Exhibit C.The trail through

this easement will ultimately connect with the planned Cameron Place trailhead on the ELCR Property

and is intended to assist in bike and pedestrian connection from the Eagle County Core Trail and


Owners Ass'n, Inc.

Exhibit5


2

Edwards’ commercial sidewalk system to the ELCR Property.All easements described in this paragraph

shall be in such form and substance as is reasonably acceptable to the HOA.

The approximately18 acres shall be permanently preserved through a conservation easement to be

negotiated with and held by EVLT.The conservation easement will define conservation values and will

provide for uses consistent with preservation of the conservation values. In the event any portion of the

proposed trail passes through third party property, then County and HOA will work together to obtain

public access to such lands. Notwithstanding the foregoing, the HOA will continue with the dedication of

the conservation and access easements across its property.

HOA will not be responsible for the cost of improvements to the ELCR Property including costs

associated with installation of a parking area at the trailhead or trails to be established on the ELCR

Property. The County Open Space fund cannot pay for improvements to open space. EVLT is working to

raise funds to pay for installation of improvements andCounty may be able to provide some in-kind

services to assist with the installation of an access road and parking area.

County will propose a grading plan for a small portion of the ELCR Property that may include removal

of foreign debris and may include berms to mitigate views of the access road and parking area from

neighboring Homestead lots.

Access to parking at Cameron Place trail head and the parking lot is currently intended to be gravel, but

County reserves the right to pave these improvements in the future.

The parties recognize that the conservation easement for the ELCR Property may allow for certain

limited improvements in the future, which improvements shall not unreasonably impact or affect the

HOA.

Permitted uses on the ELCR Property shall include, but not be limited to, equestrian, mountain bike and

pedestrian use. Motorized recreational use of the ELCR Property shall be prohibited with the exception of

access to the parking lot to be located on the ELCR Property and as may be required under the Americans

with Disabilities Act. County expects to work with the Division of Wildlife which may require seasonal

closure of the ELCR Property for habitat protection or other purposes.

There are currently a number of encroachments onto the ELCR property. County will determine whether

the conservation easement will include or exclude these encroachments. County will inform HOA of how

it will address encroachments and their impact on the conservation easement. Resolution to any

encroachment issue shall be without financial contribution from the HOA.

Cameron Place trailhead will be signed for daylight use only. The parties anticipate entering into a

maintenance agreement for the property and will include in that agreement a plan for monitoring use of

the trailhead. As part of the monitoring effort, and as more fully set forth in the maintenance agreement,

in the event that overnight parking or evening use of the ELCR Property is a consistent problem, then the

parties may consider installation of a gate and related maintenance requirements.

Further, as part of the monitoring efforts to be documented in a future maintenance agreement, the

parties agree to monitor hunting access to USFS land and agree to develop a plan for management of such

use if it becomes a consistent problemall to be more fully set forth in the maintenance agreement.

3

An agreement for on-going maintenance of the ELCR Property and the access easements across HOA

land will be required. The parties agree that on-going maintenance will be a cooperative effort.

County,HOA and Edwards Metropolitan District have agreed to participate in on-going maintenance. The

parties will share in the upkeep and/orannual cost of maintaining the ELCR Property to include the

trailhead and trail system and maintenance of the access easements across HOA property. HOA

maintenance may be through in kind services (i.e. regular trash pickup and stocking dog bags).

Weed control will be contemplated in the conservation easement for the ELCR property and is intended

to be part of the annual maintenance requirement for that property. Likewise, HOA will include weed

control in conservation easements entered into by it under this MOU and such weed control shall be part

of the maintenance agreement.

The access easements will refer to the protections offered pursuant to Title 33, Article 41 of the

Colorado Revised Statutes. Further, the parties may place signs on the trails in an effort to further reduce

liability and risk.

EVLT will work with the Creamery Ranch Homeowners Association to conserve and protect

itsassociation-owned open space that cuts off the ravine trail from ELCR property and to obtain public

access across Creamery Ranch Homeowners Association openspace.See possible trail location on Exhibit

D.

Upon completion of the Eagle Valley Land Exchange, such that the State Land Board parcel is

connected with the USFS land (and presuming the USFS “T parcel” is protected either through remaining

as USFS property or through exchange to State Land Board and purchase by County with preservation

through a conservation easement) then the HOA will discuss and consider a grant of a permanent

publiceasement from the water tank along the historically used alignment, and will also consider an

extension of the conservation easement that protects the 120 acres of HOA open space to an additional

portion of the 400 acres of open space. The addition of this public easement will not include additional

parking but public access and use will be permitted. See Exhibit E.In the event that the water tank trail is

included in a permanent public easement, then attempts will be made to guide the bulk of the users to the

Cameron Place trailhead either through signage or trail reconstruction at the intersection of the water tank

trail with the main trail to Cameron Place on USFS land.



Owners Ass'n, Inc.

Exhibit7



Plaintiffs:


FAMILY LP,

v.

Defendant:




COURT USE ONLY


Division:

Courtroom:

MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiffs Barbara Allen and Wesley Allen Family LP, through counsel, move the Court for a temporary restraining order pursuant to C.R.C.P. 65:

Introduction

As described in detail in the Complaint, this case arises from the conduct of

Defendant The Homestead Owners Association, Inc. (“Homestead”) who is

attempting to convey an easement to Eagle County in violation of the

settlement agreement and Easement of 1996.


2

Argument


nonprofit corporation that owns the Homestead Association Open Space.

2. As described in the Memorandum of Understanding (“MOU”)

attached to the Complaint (exhibit 4 thereto), Homestead has undertaken

concrete and substantial steps in an attempt to convey a permanent easement

to Eagle County to provide public access through a portion of 120 acres of

Homestead’s open space, with the easement terminating on U.S. Forest Service

land.

3. Based on recent research of publicly available information,

Homestead began planning to convey an easement to Eagle County in July

2011. From then until now, there has been nary a mention of Homestead’s

putative conveyance to Plaintiffs. Instead, Plaintiffs found out about the

imminent transfer by reading about it in the Vail Daily.

4. Had Homestead simply asked the Plaintiffs, instead of pursuing

their unilateral shoot first, ask later, course of action, judicial intervention

would probably not be required. Instead, Homestead set forth down this path

leaving Plaintiffs with no alternative.

5. Based on publicly available information, Homestead is going to

make a conveyance to Eagle County next couple of weeks, although a date

certain is not known by Plaintiffs.

6. Plaintiffs will be irreparably harmed if the conveyance occurs

because they have no certain legal remedy should Eagle County be gifted a

3

right of way from the Homestead conveyance across or along Plaintiffs’

easement.

7. Plaintiffs will be irreparably harmed because a permanent

easement that provides public access across the 120 acres of Homestead open

space referred to in the MOU will require that the public – and the County –

proceed along and/or cross the Allen Easement, which clearly states that it is

exclusive and for private use.

8. Homestead’s use of the Easement is restricted in that use of the

Easement by Homestead and its members shall be solely to provide access to

the Homestead Association Open Space.

9. Homestead’s attempt to open the entire area to the public without

establishing plans to control the public access or allocate risk is wholly

detrimental to Plaintiffs’ property rights.

10. Homestead is openly violating the restrictive covenants in the

Easement, which expressly provides that “neither Grantor nor Grantee may

grant further interest in the Easement or any improvements constructed

thereon to any third party; . . . .” Moreover, only Plaintiffs possess any method

of conveying or dedicating the Easement to Eagle County, not Homestead.




Allens] and for no other uses except as specified.” (emphasis added). The

Homestead Board has no authority to grant further rights in the exclusive

easement granted to the Allens and Homestead and granting a third party a

4

colorable claim to Plaintiffs’ easement will result in more costly litigation. (See

Ex. 7 to Complaint, Affidavit of Barbara Allen.)

12. Plaintiffs bear the burden of insuring against the risk of loss as

allocated in the Allen Easement (Ex. 1 to Complaint). The risk, as allocated in

the Easement, was manageable so long as access is limited to Plaintiffs’ use

and Homestead homeowners; now, Defendant seeks to invite the public onto

the easement and simultaneous impose the risks and costs of the general

public accessing Plaintiffs’ Easement on Plaintiffs.

13. Homestead has utterly failed to comply with the settlement

agreement and Easement, which expressly limits Homestead’s ability to use

and convey the Easement.



Easement.

15. Plaintiffs are substantially likely to prevail at trial on the merits;

the restrictive covenants in the exclusive Easement clearly prohibit the transfer

that Homestead is attempting to make, and the only remedy is that provided in

the Easement: an order restraining Homestead from making the conveyance.

16. Defendant’s actions are in violation of the settlement agreement

and Easement and Plaintiffs are entitled to a temporary restraining order to

prevent real, immediate, irreparable harm, and unless Defendant is enjoined,

immediate and irreparable injury, loss or damage has and will continue to

occur due to Defendant’s breach of the Easement.

DISTRICT COURT, EAGLE COUNTY STATE OF COLORADO 885 Chambers Avenue P.O. Box 597 Eagle, Colorado 81631 (970) 328-6328 Plaintiffs: BARBARA ALLEN and WESLEY ALLEN FAMILY LP, v. Defendant: THE HOMESTEAD OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation.

▲ COURT USE ONLY ▲ Case Number: ____________ Division: Courtroom:

ORDER RE: MOTION FOR TEMPORARY RESTRAINING ORDER

This matter comes before the Court on the motion of Plaintiffs Barbara Allen and Wesley Allen Family LP for a temporary restraining order pursuant to C.R.C.P. 65. The Court, having reviewed the Complaint, exhibits thereto, and the motion, finds and concludes as follows: Plaintiffs (through their predecessor in interest Allen & Co.) and Defendant The Homestead Owners Association, Inc. (“Homestead”), entered into a settlement agreement and easement (“Easement”) in 1996. The Easement expressly provides that the Easement “shall be for the exclusive, private use of Grantor [Homestead] and Grantee [Plaintiffs] to provide access and utilities to the Allen Upper 80 [Plaintiffs’ property].” The Easement permits Plaintiffs’ guests, licensees, invitees (business or social), employees, agents, tenants and contractors to use the Easement to and from the Allen Upper 80. The Easement provides that “Use of the Easement by Grantor [Homestead] and its members shall be solely to provide access to the Association Open Space.” The Easement states that “neither Grantor nor Grantee may grant any further interest in the Easement or any improvements constructed thereon to any third party; . . . ” but does allow Plaintiffs, but not Homestead, to make further conveyances.


2

The Easement states that “Notwithstanding the restriction . . . which limits the Easement to the exclusive, private use of Grantor and Grantee, Grantee [Plaintiffs] may dedicate the Easement to the [Eagle] County . . . .” The Court finds that Defendant Homestead has entered into a Memorandum of Understanding (“MOU”) with Eagle County that states that Homestead will attempt to convey an easement to Eagle County, and that the easement to Eagle County must necessarily cross or run along the 1996 Easement. There is no authority for Homestead to make a conveyance to Eagle County in the 1996 Easement (Plaintiffs, however, may make such a conveyance subject to certain conditions). The Easement provides that the Grantor and Grantee shall be entitled to seek specific performance by injunction or restraint. The Court, referencing Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982), concludes as follows:

1. Plaintiffs have a reasonable probability of likelihood on the merits.

2. A danger of real, immediate, and irreparable injury may be prevented by enjoining Homestead from making the putative conveyance to Eagle County.

3. There is no plain, speedy, and adequate remedy at law as Plaintiffs have been harmed and will suffer greater harm if the putative conveyance is made.

4. The granting of a preliminary injunction will not disserve the public interest.

5. The balance of the equities favors the injunction (Homestead incurs no loss or gain from making the putative conveyance, and only Plaintiffs are harmed by Homestead’s actions).

6. The injunction will preserve the status quo pending a trial on the merits. Accordingly, the Court grants the temporary restraining order. Defendant The Homestead Owners Association, Inc., their officers, agents, servants, employees and attorneys, and those persons acting in concert with them who receive actual notice of this Order, are enjoined from continuing or commencing with any conveyance that may affect the 1996 Easement. Any violation of this Order by Defendant after notice of this Order shall subject the violator to punishment for contempt of court.

3

Plaintiffs’ counsel shall set this matter for a hearing after service of this Order upon the Defendant. Because this short delay will not adversely affect Defendant (Defendant stands to gain nothing and stands to lose nothing by making the conveyance), the bond required by C.R.C.P. 65(c) is set at $100.00. Plaintiffs shall post the bond within ten days. SO ORDERED. Dated December ____, 2011. BY THE COURT: District Court Judge

JDF 601T 7/04 DISTRICT COURT CIVIL (CV) CASE COVER SHEET FOR INITIAL PLEADING OF COMPLAINT, COUNTERCLAIM, CROSS-CLAIM OR THIRD PARTY COMPLAINT

District Court EAGLE County, Colorado Court Address: 885 CHAMBERS AVE., P.O. BOX 597 EAGLE, CO 81631

Plaintiff(s): BARBARA ALLEN AND WESLEY ALLEN FAMILY L.P.

v.

Defendant(s): THE HOMESTEAD OWNERS ASSOCIATION, INC.

COURT USE ONLY Attorney or Party Without Attorney (Name and Address): JAMES PLOTT P.O. BOX 211 EDWARDS, CO 81632 Phone Number: 970-763-7466 E-mail:[email protected]

FAX Number:888‐268‐1795 Atty. Reg. #:35985

Case Number:

Division Courtroom

DISTRICT COURT CIVIL (CV) CASE COVER SHEET FOR INITIAL PLEADING OF COMPLAINT, COUNTERCLAIM, CROSS-CLAIM OR THIRD PARTY COMPLAINT

1. This cover sheet shall be filed with the initial pleading of a complaint, counterclaim, cross-claim or third party

complaint in every district court civil (CV) case. It shall not be filed in Domestic Relations (DR), Probate (PR), Water (CW), Juvenile (JA, JR, JD, JV), or Mental Health (MH) cases.

2. Check the boxes applicable to this case.

Simplified Procedure under C.R.C.P. 16.1 applies to this case because this party does not seek a

monetary judgment in excess of $100,000.00 against another party, including any attorney fees, penalties or punitive damages but excluding interest and costs and because this case is not a class action or forcible entry and detainer, Rule 106, Rule 120, or other expedited proceeding.

Simplified Procedure under C.R.C.P. 16.1, does not apply to this case because (check one box below identifying why 16.1 does not apply):

This is a class action or forcible entry and detainer, Rule 106, Rule 120, or other similar expedited proceeding, or

This party is seeking a monetary judgment for more than $100,000.00 against another party, including any attorney fees, penalties or punitive damages, but excluding interest and costs (see C.R.C.P. 16.1(c)), or

Another party has previously stated in its cover sheet that C.R.C.P. 16.1 does not apply to this case. 3. This party makes a Jury Demand at this time and pays the requisite fee. See C.R.C.P. 38. (Checking this box is optional.) Date: 8 DEC 2011 S/ JAMES C. PLOTT Signature of Party or Attorney for Party

NOTICE This cover sheet must be filed in all District Court Civil (CV) Cases. Failure to file this cover sheet is not a jurisdictional

defect in the pleading but may result in a clerk’s show cause order requiring its filing.


JDF 601T 7/04 DISTRICT COURT CIVIL (CV) CASE COVER SHEET FOR INITIAL PLEADING OF COMPLAINT, COUNTERCLAIM, CROSS-CLAIM OR THIRD PARTY COMPLAINT

This cover sheet must be served on all other parties along with the initial pleading of a complaint, counterclaim, cross-claim, or third party complaint.

This cover sheet shall not be considered a pleading for purposes of C.R.C.P. 11.

C.R.C.P. 121 § 1-15(8) states that “[m]oving counsel shall confer with opposing counsel before filing a motion.” At the outset of this action, the Court now provides the parties with its interpretation of this rule, so that the parties will have a clearer understanding of their duties in the event they decide to file motions as the matter proceeds.

The clear purpose of Rule 121 is to require the parties to identify and attempt to

resolve emerging issues before engaging in motion practice. The plain language definition of the word “confer” means “[t]o meet in order to deliberate together or compare views; consult.” American Heritage Dictionary of the English Language. From the foregoing, the Court puts the parties on notice that the word “confer” requires the moving party to partake in interactive discussions with any party who might potentially oppose the relief requested. Before filing a motion, the moving party must speak with a party, either face-to-face or via phone, in order to satisfy the duty to confer. It is unacceptable for the parties to “confer” by non-interactive means, including but not limited to voice message, e-mail, letter, fax, or text message.

In further interpreting the first sentence of C.R.C.P. 121 § 1-15(8) above, the Court

reads the word “shall” as creating a mandatory requirement. Accordingly, before filing a Motion, the Court routinely expects the moving party to confer with any potentially opposing party, as detailed above.

Eagle Combined Courts 885 Chambers Ave.; PO Box 597 Eagle, CO 81631-0597 Phone: (970) 328-6373 Fax: (970) 328-6328

Plaintiff(s : BARBARA ALLEN and WESLEY ALLEN FAMILY LP VS Defendant(s : THE HOMESTEAD OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation

▲COURT USE ONLY▲

Case No.: 11CV 1127 Division: 3

ORDER RE RULE 121 DUTY TO CONFER


C.R.C.P. 121 § 1-15(8) does provide that, “[i]f no conference has occurred, the reason why shall be stated.” On occasions where the moving party offers such a reason in lieu of actually conferring, the Court expects the reason to be explained in substantive detail. The Court also expects it to fall within the realm of an unusual occurrence. On one end of the spectrum, it will not be acceptable for the moving party to make one phone call, leave a voicemail requesting the opposing party to confer, and then submit a corresponding shortly thereafter. Contemporaneously, the Court will not require a moving party to be hamstrung, where said party has attempted to contact the opposing party on numerous occasions, left several voice messages asking to confer, but has nonetheless received no return communication in a timely fashion. Since individual circumstances vary between these two extremes, the Court will evaluate whether the parties have satisfied the duty to confer on a case-by-case basis.

Finally, the Court reads C.R.C.P. 121 § 1-15(8) as applying to pro se parties in the

same manner as it applies to any attorney entering an appearance before this Court. DATED: 12/8/2011

I. All civil courts in the Fifth District are on a Delay Reduction Docket. Deadlines that must be met are:

1. Service of Process: Returns of Service on all defendants shall be filed within 60 days after the date of the filing of the complaint. 2. Default Judgment: Application for default judgment shall be filed within 30 days after default has occurred.

3. Status Conference: Plaintiff shall serve a Notice to Set in the case for an initial case management status conference and shall complete the setting of the status conference within 30 days from the date the case becomes at issue. A case shall be deemed “at issue” when all parties have been served and have filed all pleadings permitted by C.R.C.P. 7, or defaults or dismissal have been entered against all non-appearing parties, or at such other time as the Court shall direct.

The Court will consider extending these time periods upon timely filing of a motion showing good cause IF AN ATTORNEY OR PRO SE PARTY FAILS TO COMPLY WITH PART I OF THIS ORDER, THE COURT MAY DISMISS THE CASE WITHOUT PREJUDICE. THIS ORDER SHALL BE THE INITIAL NOTICE REQUIRED BY RULE 121, SECTION 1-10, AND RULE 41 (B) (2). II. Plaintiff shall mail a copy of this order to all other parties who enter an appearance. III. In an effort to mitigate budget cuts and staff reductions in the Fifth Judicial District, the Court generally requires that all parties shall serve their pleadings in the above-captioned matter using Electronic Case Filing (e-filing). If any party objects to the use of the e-filing system as the sole method for submitting pleadings herein, that party shall have 15 days from the date of this Order to file a motion showing good cause why a variance from e-filing should be granted.

a. As part of the e-filing system, the Court further requires that all Proposed Findings and/or Orders

Eagle Combined Courts 885 Chambers Ave.; PO Box 597 Eagle, CO 81631-0597 Phone: (970) 328-6373 Fax: (970) 328-6328

Plaintiff(s : BARBARA ALLEN and WESLEY ALLEN FAMILY LP VS Defendant(s : THE HOMESTEAD OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation


Case No.: 11CV 1127 Division: 3

DELAY REDUCTION ORDER


must be submitted using the e-filing system’s inherent process for the attachment and submission of a filing from a party’s word processing document directly to the Court. For further information, please see “best practices” at https://fileandserve.lexisnexis.com/WebPages/support.asp. Parties shall not submit any Proposed Findings and/or Orders as either scanned or graphic images because such filings prevent the Court from editing as needed.

b. As part of the e-filing system, the Court notes that graphic or scanned image submissions take up more file space and are therefore more difficult for the Court’s clerks to download. There is also a new Colorado-wide limit of 1.5 Mb on individual e-filing submissions. Accordingly, to the extent possible, the Court further recommends that parties attempt to make e-filing submissions directly from their word processing documents as described above in III(a) and avoid the e-filing of graphic or scanned images wherever possible.

Dated 12/8/2011

cc: Plaintiff(s) or Plaintiff(s) Counsel

DISTRICT COURT, EAGLE COUNTY STATE OF COLORADO 885 Chambers Avenue P.O. Box 597 Eagle, Colorado 81631 (970) 328-6328 Plaintiffs: BARBARA ALLEN and WESLEY ALLEN FAMILY LP, v. Defendant: THE HOMESTEAD OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation. Attorney for Plaintiffs: Name: James C. Plott, Atty. Reg. # 35985 Address: P.O. Box 211 69 Edwards Access Rd. Ste. 11C Edwards, CO 81632 Phone: (970) 763-7466 Facsimile: (888) 268-1795 E-mail: [email protected]

▲ COURT USE ONLY ▲ Case Number: 11CV1127 Division: Courtroom:

NOTICE OF HEARING

PLEASE TAKE NOTICE that a C.R.C.P. 65 preliminary injunction hearing has been set in this matter for December 16, 2011, at 9:00 am, in the Eagle County District Court, 885 Chambers Avenue in Eagle, Judge Moorhead’s division. Respectfully submitted this 8th day of December, 2011, s/ James C. Plott James C. Plott Attorney for Plaintiffs

EFILED Document CO Eagle County District Court 5th JD Filing Date: Dec 8 2011 4:43PM MST Filing ID: 41307655 Review Clerk: Rhonda Higgins


Plaintiffs:


FAMILY LP,

v.

Defendant:




COURT USE ONLY

Case Number: 11CV1127

Division:

Courtroom:

RETURN OF SERVICE

EFILED Document CO Eagle County District Court 5th JD Filing Date: Dec 15 2011 11:02AM MST Filing ID: 41417043 Review Clerk: TERI FARNEY

DISTRICT COURT, COUNTY OF EAGLE COUNTY, STATE OF COLORADO Court Address: 885 Chambers Avenue

Eagle, CO 81631 Phone Number: (970) 328-6373 Plaintiffs: BARBARA ALLEN and WESLEY ALLEN FAMILY LP v. Defendant: THE HOMESTEAD OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation. ATTORNEYS FOR DEFENDANT Attorneys: William H. Short, #12929

Debra J. Oppenheimer, #19066 Name: HindmanSanchez P.C. Address: 5610 Ward Road, Suite 300

Arvada, Colorado 80002-1310 Phone No: 303.432.9999 Fax No: 303.432.0999 Email: [email protected] [email protected]

• COURT USE ONLY • ___________________________ Case Number: 2011CV1127 Div.: 3 Ctrm.:

MOTION TO DISMISS COMES NOW Defendant, The Homestead Owners Association, Inc.

(“Association”), by and through its attorneys, HindmanSanchez P.C., appearing through

William H. Short and Debra J. Oppenheimer, and pursuant to C.R.C.P. 12(b)(5)

respectfully moves the Court to dismiss all claims asserted against the Association in

the Complaint filed December 8, 2011:

C.R.C.P. 121 Certification: Pursuant to C.R.C.P. 121, §1-15 (8), the undersigned

attempted to confer with Plaintiffs and has requested on two separate occasions that


{05779163.DOC;1} 2

Plaintiffs dismiss this action because there is no basis in fact to the claims. Counsel for

the Plaintiffs has refused the relief requested herein.

1. The Complaint alleges that a Memorandum of Understanding

(“Memorandum”) between the Association and Eagle County will affect Plaintiffs’

property rights. The Complaint fails to mention and fails to acknowledge that the

Memorandum of Understanding is nonbinding. The Complaint alleges that the conduct

of the Defendant in signing the Memorandum constituted a violation of a recorded

easement that the Defendant granted to the Plaintiffs. The Association will show that

the allegations of the Complaint, and the contents of the attached documents, establish

that those claims are not maintainable as a matter of law against the Association.

2. “The purpose of a motion to dismiss for failure to state a claim upon which

relief can be granted is to test the formal sufficiency of the complaint.” Barton v. Law

Offices of John W. McKendree, 126 P.3d 313, 314 (Colo. App. 2005). Applying the

foregoing standard to the claims asserted against the Association in the Complaint,

Plaintiffs cannot articulate a cognizable legal claim for relief against the Association.

While the Court can only consider matters stated in the complaint on a motion to

dismiss, exhibits attached to a complaint are a part of the complaint for all purposes.

C.R.C.P. 10(c). In ruling upon the legal sufficiency of a complaint for purposes of a

motion to dismiss, the Court can and should review attached, incorporated exhibits.

3. While motions to dismiss for failure to state a claim must take material

allegations as true, that is not the case when the factual claims are at variance with the

express terms of documents attached to the complaint. See Stauffer v. Stegemann,

{05779163.DOC;1} 3

165 P.3d 719 (Colo.App.2006). The Memorandum of Understanding that is attached to

the Complaint as Exhibit 4 clearly sets out that the Memorandum is a preliminary step to

develop a formal agreement and easement. It further states that future agreements will

be required and that the Memorandum is only to create a partial frame work for future

agreements and easements.

4. Paragraph 26 of the Complaint alleges that the Association must grant

public access across the Easement owned by the Plaintiffs. The Plaintiffs cannot

establish this because it is not accurate. The Memorandum of Understanding is a

nonbinding document which in no way requires the Association to grant the County or

the public access across the Easement owned by the Plaintiffs. A review of the maps

attached to the Complaint shows that there is more than one way across the

Homestead property over to land owned by the United State Forest Service. Further,

the testimony at the preliminary injunction hearing showed that there are ways across

property owned by the Association that allow access by the public without going near

the Easement owned by the Plaintiffs.

5. Paragraph 39 of the Complaint alleges that the Memorandum stated that

Homestead plans to convey an easement that will grant an interest in or across the

Allen Easement. Nowhere in the Memorandum of Understanding is there any such

statement.

6. A review of the Memorandum of Understanding reveals that there is no

plan to convey an easement across the Allen Easement.

{05779163.DOC;1} 4

7. This case should also be dismissed for no subject matter jurisdiction. The

matter is not ripe for adjudication. No actions have occurred on the part of the

Association, and no damage has occurred to the Plaintiffs. Ripeness requires the

presence of an actual controversy between the parties warranting adjudication.

Beauprez v. Avalos, 42 P.3d 642, 648 (Colo. 2002). In the interest of judicial efficiency,

courts will not consider "uncertain or contingent future matters" because the injury is

speculative and may never occur. Id. In deciding ripeness, courts look to the hardship

of the parties of withholding court consideration and the fitness of the issues for judicial

decision. Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681

(1967). To be fit, there must be an adequate record to permit effective review. Id.

When an injury is speculative or may not occur, a court "will not consider" it. Jessee v.

Farmers Ins. Exchange, 147 P.3d 56, 59 (Colo. 2006). The court will not give its

opinion on moot questions or abstract propositions. Knowles v. Harrington, 45 Colo.

346, 101 P. 403 (Colo. 1909); Lehrman Mercantile Co. v. Ireland, 93 Colo. 209, 24 P.2d

750 (Colo. 1933); Hawthorne v. Hendrie & Bolthoff Mfg. & Supply Co., 50 Colo. 342,

116 P. 122 (Colo. 1911). Ripeness requires that there be an actual case or controversy

between the parties that is sufficiently immediate and real so as to warrant adjudication.

Carstens v. Lamm, 543 F.Supp. 68, 76 (D.C.Colo. 1982) (citing Lake Carriers' Ass'n v.

MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972)). Thus, courts

generally do not consider cases involving uncertain or contingent future matters. Id.

(citing Charles Wright & Arthur Miller, Federal Practice & Procedure, § 3532, at 238

(1975)).

{05779163.DOC;1} 5

8. C.R.S. § 13-17-102(4) provides that:

[t]he court shall assess attorney fees if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacks substantial justification . . . As used in this article, ‘lacked substantial justification’ means substantially frivolous, substantially groundless, or substantially vexatious. 9. As demonstrated above, there is no cognizable legal basis for the

assertion of claims against the Association. Those claims are therefore frivolous,

entitling the Association to an award of reasonable attorney fees and costs. A claim or

defense is frivolous if the proponent can present no rational argument based on the

evidence or law in support of that claim or defense. Western United Realty, Inc. v.

Isaacs, 679 P.2d 1063 (Colo. 1984).

10. The purpose of C.R.C.P. 12(b)(5) motions to dismiss for failure to state a

claim is to test the formal sufficiency of the complaint. Merrick v. Burns, Wall, Smith &

Mueller, 43 P.3d 712, 713 (Colo. App. 2001). The Court should grant a motion to

dismiss where it appears that the plaintiff cannot prove facts, or fails to assert a legal

theory, upon which relief can be granted. Coors Brewing Co. v. Floyd, 978 P.2d 663,

665 (Colo. 1999). Here, Plaintiff has both failed to assert valid legal theories and failed

to assert essential elements of the claims for relief. Dismissal is proper only if, based

upon the allegations, the plaintiff is not entitled to relief upon any theory of the law.

Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1100 (Colo. 1995). Upon

review, the court must accept all allegations of material fact as true. Shapiro &

Meinhold v. Zartman, 823 P.2d 120, 122-23 (Colo. 1992). Where it is clear that a

plaintiff has no standing to assert a claim upon which relief can be granted, the action is

{05779163.DOC;1} 6

properly dismissed. Clark v. City of Colorado Springs, 102 Colo. 593, 428 P.2d 359

(1967); Nicholson v. Ash, 800 P.2d 1352, 1356 (Colo. App. 1990).

11. The applicable analysis for entry of a preliminary injunction pursuant to

C.R.C.P. 65 is found in Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1982). In order for

Plaintiff to secure the injunction, he must prove: (1) a reasonable probability of success

on the merits; (2) a real, immediate and irreparable injury, in the absence of the

injunctive relief sought; (3) that there is no plain, speedy, and adequate remedy at law;

(4) that the entry of a preliminary injunction will not disserve the public interest; (5) that

the balance of the equities favors entering injunction; and (6) that the injunction will

preserve the status quo pending a trial on the merits. Id. at 653-54. The evidence, as

shown at the Preliminary Injunction hearing, revealed that Plaintiffs have no ability to

meet any of those factors. Plaintiffs have no facts to support their claims. There is no

binding agreement between the County and the Association. There have been no

actions by the Association to take any action that will affect Plaintiffs’ easement rights.

Plaintiffs have only supposition based upon hearsay to attempt to establish that

something may occur in the future. There are no facts and no evidence to establish the

Association has taken any action to affect any property right of the Plaintiffs.

12. This action is nothing more then a retaliatory action by the Plaintiffs after

the Association filed suit against the Plaintiffs for Plaintiffs’ violations of the Easement

Agreement. The Association obtained both a temporary restraining order and then a

preliminary injunction against Plaintiffs for Plaintiffs’ violations of the Easement. This

action is vexatious litigation by the Plaintiffs.

{05779163.DOC;1} 7

Request For Attorney Fees

13. The Defendant moves the Court to award attorney fee sanctions against

Plaintiffs upon dismissal of the Complaint pursuant to C.R.S. § 13-17-201. C.R.S. § 13-

17-201 provides for an award of attorney fees upon dismissal of an action alleging injury

to property. Plaintiffs allege, at paragraph 49 of their Complaint, that damage has and

continues to be done to their property. See, Wark v. Board of County Com’rs of County

of Dolores, 47 P.3d 711, 717 (Colo. App. 2002) (Under C.R.C.P. §13-17-201, an award

of attorney fees is mandatory when a trial court dismisses an action under C.R.C.P.

§12(b)); Kreft v. Adolph Coors Co., 170 P.3d 854, 859 (Colo. App. 2007) (An award of

attorney fees is mandatory when a trial court dismisses a tort action); Crow v. Penrose-

St. Francis Healthcare System, 262 P.3d 991 (Colo. App. 2011) (Plaintiff’s voluntary

relinquishment of his request for injunctive relief did not absolve him from liability for

attorney fees under C.R.C.P. §13-17-201 when he continued to seek monetary

damages).

14. The Defendant also moves the Court to award attorney fee sanctions

against Plaintiffs for bringing frivolous and groundless claims, and for bringing vexatious

claims. C.R.S. § 13-17-102(2) and (4). Plaintiffs’ vexatious claims against the

Association are a vindictive retaliatory attack against the Association following the

issuance of the Temporary Injunction and Preliminary Injunction against Plaintiffs for

their violations of the Easement. These vindictive and retaliatory forays into Court come

at a financial cost to the owners within the Association and should be sanctioned.

{05779163.DOC;1} 8

15. The Association requests the Court to enter sanctions against Plaintiffs

and their attorney for bringing frivolous and groundless claims, and vexatious claims.

C.R.S. § 13-17-102(2) and (4) and C.R.C.P. 11 (the “Rule”) provides that the signature

of an attorney constitutes a certification by him that he has read the pleading, and that it

is well grounded in fact and warranted by existing law. The Rule provides for imposition

of appropriate sanctions, including reasonable expenses and attorney fees for

violations. As detailed in the foregoing Motion, a reasonable investigation by Plaintiffs’

attorney should have caused him to not file many of the claims or to have dismissed

them after receipt of additional information provided by Defendants. The statute and

Rule impose a gatekeeper function upon counsel so improper claims and allegations

are not made. Determined and wild-eyed clients harboring long-standing grudges may

file pro se complaints to the ongoing consternation of courts and opposing counsel.

Nevertheless, the Rule and the statute require an attorney to exercise oversight and

objectivity. The Complaint contains claims which are potently deficient. This case calls

for the imposition of a severe financial sanction.

WHEREFORE, the Association respectfully moves the Court to dismiss the

claims asserted against the Association in the Complaint pursuant to C.R.C.P. 12(b)(5).

The Association further moves the Court to award attorney fees to the Association

based upon C.R.S. § 13-17-201, and C.R.S. § 13-17-102, et seq. A form of Order is

attached.

{05779163.DOC;1} 9

Dated this 29th day of December, 2011.

Respectfully submitted

HINDMANSANCHEZ P.C.

/s/ William H. Short [Original signature on file.]

William H. Short, No. 12929 Debra J. Oppenheimer, No. 19066

5610 Ward Road, Suite 300 Arvada, Colorado 80002-1310 303-432-9999 303-432-0999 (fax) ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of December, 2011, a true and correct copy of the foregoing MOTION TO DISMISS was served via CourtLink or by depositing in the U.S. Mail, postage prepaid to the following:

James C. Plott, Esq. P.O. Box 211 0069 Edwards Access Road, Suite 11C Edwards, CO 81632

/s/ Carole Zarrella [Original signature on file.]

{05780427.DOC;1}


Eagle, CO 81631 Phone Number: (970) 328-6373 Plaintiffs: BARBARA ALLEN and WESLEY ALLEN FAMILY LP v. Defendant: THE HOMESTEAD OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation.


ORDER GRANTING MOTION TO DISMISS THE MATTER OF Defendant’s Motion to Dismiss, and any response and reply, have come before the Court and the Court is fully advised as to the circumstances. The Motion is GRANTED. The Court adopts the arguments in the Association’s Motion as its findings and conclusions of law. All claims asserted by Plaintiffs against Defendant are dismissed pursuant to C.R.C.P. 12(b)(5).

The Association is awarded its attorney fees and costs pursuant to C.R.S. § 13-17-201 and C.R.S. § 13-17-102, et seq., and shall file an affidavit of attorney fees and costs within 15 days after entry of this Order. The Plaintiffs shall have 10 days to file a response to the Association’s affidavit, and the Association may file any reply within 5 days after filing of Plaintiff’s response. The Court will thereafter enter a ruling on attorney fees, unless it deems a hearing is necessary.

Dated: , 2011.

BY THE COURT: District Court Judge



Plaintiffs:


FAMILY LP,

v.

Defendant:




COURT USE ONLY

Case Number: 11CV1127

Division:

Courtroom:

RESPONSE TO MOTION TO DISMISS

Plaintiffs Barbara Allen and Wesley Allen Family LP, through counsel, respond

to the defendant’s motion to dismiss:

Argument

1. In answer to the Complaint, Defendant has filed a C.R.C.P. 12(b)(5)

motion alleging that the Complaint does not assert a claim for relief upon

which relief can be granted. At issue in this case (based on publicly available

information as Plaintiffs are unaware of any easement already having been

EFILED Document CO Eagle County District Court 5th JD Filing Date: Jan 7 2012 11:59PM MST Filing ID: 41746704 Review Clerk: Rhonda Higgins

2

granted in violation of the 1996 Easement agreement) is whether Defendant

The Homestead Owners Association, Inc. (“Homestead”) is attempting, contrary

the express terms of the 1996 Easement, to convey an easement that it cannot

convey because that conveyance would violate restrictive covenants that benefit

Plaintiffs. As discussed below, Defendant cannot prevail on its motion to

dismiss as it cannot refute the factual allegations asserted by Plaintiffs that

Defendant is attempting to convey, without authority or power to do so, an

easement to a third party that will violate the restrictive covenants that benefit

the Allens.

2. Motions to dismiss for failure to state a claim are viewed with

disfavor. See Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). In

reviewing a complaint for sufficiency, the Court must view all well-pleaded facts

as true and in the light most favorable to the Plaintiffs. See Public Serv. Co. v.

Van Wyk, 27 P.3d 377, 386 (Colo. 2001). The Court may consider the

attachments to the Complaint and take judicial notice of matters. See Walker

v. Van Laningham, 148 P.3d 391, 397 (Colo. App. 2006).

3. As a preliminary matter, Plaintiffs note that Homestead has strewn

unverified factual allegations throughout its motion and it has also asked the

Court to consider testimony given at the preliminary injunction hearing. (See

Motion to Dismiss, ¶ 4.) If the Court considers matters outside the pleadings,

then it must convert the Defendant’s motion to a motion for summary

judgment. See C.R.C.P. 12(b). Additionally, pursuant to C.R.C.P. 56(f),

Plaintiffs require additional discovery concerning the additional steps that

3

Homestead has taken in willful violation of the 1996 Easement, and what

specific remedy the Court may fashion to prevent further harm from occurring.

Plaintiffs also request time and leave to conduct additional briefing because, as

the Court is aware, the testimony and exhibits admitted at the preliminary

hearing through Professional Land Surveyor Ted Archibeque undisputedly

prove that an unauthorized pedestrian trail was surveyed that crosses the Allen

Easement.

4. As a factual matter, Mr. Archibeque’s survey calls into question

what Homestead has already authorized Eagle County to do in preparation for

the transfer that will adversely affect the Plaintiffs’ property rights.1 If the

Allens are incorrect that Homestead is attempting to violate the 1996

Easement, and one accepts the unverified representations of Defendant’s

counsel as true, then a number of questions arise:

why did Eagle County purchase the East Lake Creek Ranch parcel

using its general funds (and not open space funds),

why did the Creamery Ranch donate their trail system to access the

national forest if no national forest access is to be provided,

why is a parking lot and trailhead to be placed at Cameron Place in

Homestead Filing One to access the national forest via the 120 acre

Homestead Open Space (per Defendant’s Summary of the MOU),

1Plaintiffs note that the government has a remedy to gain the access that it is planning, albeit

one that would give rise to a claim for monetary damages. Because Plaintiffs have not been approached or included on discussions to secure the appropriate access for the public, (including design, maintenance, and liability), a judicial remedy against the putative transferor has been sought pursuant to the 1996 Easement Agreement.

4

why would Jason Denhart of the Eagle Valley Land Trust say that

together, those parcels will create a new “front door” to the national

forest, and

why would Homestead convey 120 acres of its open space to the land

trust, or access across the 120 acres, which is depicted in Exhibit 5’s

Exhibit B to the County, given that the Water Tower trail that does

not cross the Allen Easement also does not cross that 120 acres?2

The facts alleged by Plaintiffs in their Complaint are quite simple and comport

with reality. The unverified factual allegations by the Defendant do not. More

importantly, the motion to dismiss must be denied because the Allens have

asserted a cognizable and actionable claim for relief under the facts alleged.

I. A Claim Has Been Presented for Which Relief Can be Granted

5. The Complaint and exhibits thereto set forth numerous factual

allegations which must be taken as true. Undersigned counsel has tried to

distill the most relevant of these, which frame the controversy here:

Both Homestead and Eagle County have executed the Memorandum

of Understanding (“MOU”). (See Complaint, ¶¶ 23, 24.)

The MOU contemplates a permanent easement gifted to the county

that will provide “access across a defined portion of the 120 acres of

[Homestead] open space to USFS land.” (Complaint, ¶ 25.)

2

This is clear from Exhibit E to Exhibit 5, which clearly shows the existing Water Tower trail as the “Forest Access Trail” – it does not come close to the 120 acres Homestead is conveying to the County (compare Exhibits E and B) which will create the trail that will violate the Allens’ property rights.

5

The Proposed “Trail to USFS Parcel” must travel along and/or cross

the Allen Easement. (See Complaint, ¶ 32.)

Homestead intends to allow the entire public on the Allen Easement.

(See Complaint, ¶ 35.)

Homestead intends to allow the entire public to access the White River

National Forest via the Allen Easement. (See Complaint, ¶ 36.)

6. According to Homestead’s own words, public access across a

“defined portion of the 120 acres of [Homestead] open space” means that

Homestead intends to grant the public access in and across the 120 acres of

Homestead open space, and not, as expressed in the unverified motion to

dismiss, via the sidewalks of Homestead’s Filing Two neighborhood.

7. Homestead’s Summary of MOU, provided as exhibit 5 to the

Complaint, clearly states that

The MOU contemplates that the parties will work together to develop more formal agreements concerning (1) access easements; (2) conservation easements; (3) use; and (4) improvements and maintenance. The MOU will be a partial framework for the future easements and agreements.

(See Ex. 5 to Complaint, emphasis added.) There is no evidence that

Homestead is not violating or attempting to violate its 1996 Easement

agreement. We know that Homestead plans on doing something, thus, it

signed the MOU. Plaintiffs ask the Court to acknowledge that if the expected

discovery shows that Homestead is attempting to dedicate a permanent

easement to Eagle County that crosses the Allen exclusive easement in

6

violation of the restrictive covenants of the Allen Easement, then the Allens are

entitled to the relief authorized by the 1996 Easement agreement. The Allens

further note that based on Ted Archibeque’s testimony and survey of a trail

that crosses the Allen Easement, it would appear that Eagle County is

anticipating installing one trail that crosses the Allen Easement, in derogation

of the Allens’ property rights. It is worth noting that whatever Eagle County

ultimately chooses to do with its easement is not essential to the injunctive

relief sought here; it Homestead’s violation of the 1996 Easement that is at

issue in this case.

8. Additional factual allegations also show Homestead’s lack of good

faith and fair dealing with regard to the 1996 Easement:

Upon closing and conservation of the ELCR Property, HOA will grant a permanent easement to County to provide public access across a defined portion of the 120 acres of HOA open space to USFS land. The general location of the proposed trail is depicted on Exhibit B. The intent is to provide public access from a trail head to be located on the ELCR Property near Cameron Place, across the ELCR parcel and across the 120 acres of HOA open space to USFS land. Such access shall be subject to all terms and conditions contained in the access easement granted to the County.

(See Ex. 5 to Complaint.) The only way for the putative permanent access

easement that Homestead plans to provide to the County to proceed from

Cameron Place in Homestead Filing One, across the East Lake Creek Ranch

Parcel and across the 120 acres of HOA open space is, according to Exhibit B, is

to cross the Allen Easement. (See Complaint, ¶ 32.) The Cameron Place

7

trailhead, depicted as the last illustration in the MOU exhibit, is located to the

west and north of the national forest. Accepting the allegations in the

Complaint as true, this requires that the public cross the Allen exclusive

easement. Defendant’s counsel’s factual assertions – that the pedestrians will

park at Cameron Place and proceed to the Water Tower Trail – is neither

appropriate under C.R.C.P. 12(b) nor logical: Homestead’s proposed trailhead

and ten space parking lot at Cameron Place will require either that the public,

their dogs, horses, bicycles, weapons, and game proceed from a parking lot in

the open space next to Homestead Filing One, thence along the streets and

sidewalks of Homestead Filing Two to reach the national forest, then back

through Homestead Filing Two to reach the parking lot. Of course this

demands an answer to the question of why a trailhead would be placed at

Cameron Place instead of higher and closer to the water tower in Filing Two.

The factual allegations (which are based on Defendant’s own party admissions)

must be taken as true: the public will be given a colorable claim to proceed on

and across the Allen Easement in violation of the Allens’ property rights.3

II. This Case is Ripe

9. Defendant haphazardly argues that the instant case is not ripe for

adjudication. That claim is also without merit. The Court is aware that the

Allens’ cause of action stems from a settlement of two prior Eagle County

District Court cases. It was Homestead’s decision to violate the 1996

3

To be clear, the Allens support the concept of public access across their exclusive easement; it is the design, maintenance, and liability of public access that requires their involvement and consent. Homestead’s decision to act unilaterally without attempting to involve the Allens before gifting the Allens’ property rights to the County is a violation of the 1996 agreement.

8

Easement, and the Allens are pursuing the relief authorized in settlement of

the two former cases.

10. Taking all of the Allens’ factual allegations in the Complaint as true

– that Homestead is violating the 1996 Easement by attempting to convey an

easement in violation of the restrictive covenants thereto – the Allens have a

ripe claim. According to the 1996 Easement, “Grantor and Grantee shall be

entitled to enforce the grants, conditions, restrictions, covenants and other

provisions contained in this Easement … .” (See Ex. 1 to Complaint, ¶ 6,

emphasis added.)

11. According to Black’s, “attempt” is defined as “[t]he act or an

instance of making an effort to accomplish something, esp. without success.”

See Black’s Law Dictionary, 2d Pocket Ed., at 51. The signing of the

Memorandum of Understanding by Homestead, which Homestead characterizes

as only a preliminary framework, is by definition an act or an instance of

making an effort to accomplish something. Here, but for Homestead’s signing

of the MOU, Homestead would probably not be considered having done an act

or instance of making an effort to accomplish something. Instead, Homestead

has tried to deflect the truth of the issue here, again not in good faith or fair

dealing. Defendant has demonstrated its extremely partisan position with a

motion to dismiss that spends more time demanding attorney fees and beating

the dead horse that was the preliminary injunction hearing than providing a

coherent C.R.C.P. 12(b) argument that does not rely on factual allegations.

Given Defendant’s failure to act with good faith and fair dealing concerning the

9

restrictive covenants by which it is bound, the relief sought pursuant to the

1996 Easement is definitive.

12. The Easement between the parties expressly provides that

Grantor and Grantee shall be entitled to seek specific performance of this Easement by the other party or may seek, by injunction or restraint, to prevent a violation or attempted violation of this Easement or to bring an action for damages, or any of them without making an election.

(See Easement, ¶ 6.1, Ex. 1 to Complaint, emphasis added.)

13. The fact is that Homestead created the Allens’ cause of action

through its violations or attempted violations of the 1996 Easement (and

Plaintiffs note that discovery is necessary to show Homestead’s further steps

toward violating the 1996 Easement, if they have not already successfully done

so). A division of the Eagle County District Court was already involved in the

creation of the 1996 settlement agreement and easement; the same court is

called upon to resolve Defendant’s violation of that agreement.

14. As a practical matter, the Allens have no idea at this point whether

the easement grant has actually occurred. Plaintiffs suspect not, but discovery

would be instrumental in determining whether injunctive relief would be

appropriate under the 1996 Easement agreement or an amended complaint for

damages or other equitable relief would be better.

15. The Allens decline to address the multitudinous attorney fees

requests by Defendant as they are without merit: Defendant forced this action

by making an effort to convey an easement to a third party in violation of the



ORDER RE: RESPONSE TO MOTION TO DISMISS

This matter comes before the Court on the motion of Defendant The Homestead Owners Association, Inc., to dismiss the Complaint against it pursuant to C.R.C.P. 12(b). The Court finds and concludes that dismissal would be inappropriate in this case as the Plaintiffs have stated claims for which relief can be granted. Accordingly, the motion is denied. Defendant shall file an answer within 14 days. SO ORDERED. Dated January ____, 2012. BY THE COURT: District Court Judge


{05786209.DOC;1}






MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS

COMES NOW Defendant, The Homestead Owners Association, Inc. (“Association”), by and through its attorneys, HindmanSanchez P.C., appearing through William H. Short and Debra J. Oppenheimer, and hereby moves the Court for an extension of time to file its Reply in Support of Motion to Dismiss as follows:

C.R.C.P. 121 Certification: Pursuant to C.R.C.P. 121, §1-15 (8), the undersigned’s office attempted to confer with Plaintiffs’ counsel via email on January 17, 2011. No response was received from Plaintiffs’ counsel prior to the filing of this Motion. Pursuant to C.R.C.P. 121, §1-11, a copy of this Motion has been served upon the Association.


{05786209.DOC;1} 2

1. Plaintiffs Barbara Allen and Wesley Allen Family LP filed their Response to the Motion to Dismiss on January 7, 2012. The Association’s Reply is due today, January 17, 2012.

2. Because of the undersigned’s work load and schedule, Ms.

Oppenheimer’s trial schedule, and the press of other business, additional time is needed to prepare a Reply. The Association requests a one week extension of time, through January 23, 2012, to file its Reply in Support of Motion to Dismiss.

3. C.R.C.P. 6(b) provides for the enlargement of time upon motion made

before the expiration of the specified period.

WHEREFORE, the Association requests an extension of time through and including Monday, January 23, 2012 to file its Reply in Support of Motion to Dismiss. A form of Order is attached.

Dated this 17th day of January, 2012.

Respectfully submitted

HINDMANSANCHEZ P.C.

/s/ William H. Short [Original signature on file.]

William H. Short, No. 12929 Debra J. Oppenheimer, No. 19066

5610 Ward Road, Suite 300 Arvada, Colorado 80002-1310 303-432-9999 303-432-0999 (fax) ATTORNEYS FOR DEFENDANT

{05786209.DOC;1} 3


I hereby certify that on this 17th day of January, 2012, a true and correct copy of the foregoing MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS was served via CourtLink or by depositing in the U.S. Mail, postage prepaid to the following:



{05786213.DOC;1}




ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS

THE MATTER OF the Defendant’s Motion for Extension of Time to File Reply in Support of Motion to Dismiss has come before the Court and the Court is fully advised of the premises. The Motion is GRANTED. The Defendant shall have an extension of time through and including Monday, January 23, 2012 to file its Reply in Support of Motion to Dismiss.

Dated: January , 2012.

BY THE COURT:

R. Thomas Moorhead District Court Judge


{05787985.DOC;1}






REPLY IN SUPPORT OF MOTION TO DISMISS COMES NOW Defendant, The Homestead Owners Association, Inc.


William H. Short and Debra J. Oppenheimer, and pursuant to C.R.C.P. 12(b)(5)

respectfully moves the Court to dismiss all claims asserted against the Association in

the Complaint filed December 8, 2011 as follows:

1. Plaintiffs start off their Objection to the Motion to Dismiss by trying to

assert that the pure speculation of Barbara Allen with no other evidence is sufficient to

EFILED Document CO Eagle County District Court 5th JD Filing Date: Jan 23 2012 11:42AM MST Filing ID: 42067630 Review Clerk: Rhonda Higgins

{05787985.DOC;1} 2

establish their claims. Plaintiffs allege that there are factual allegations, but that is not

what was presented at the hearing, and there are no facts to support the Complaint.

There has been no evidence presented because there is no evidence to support the

speculations and suppositions of the Plaintiffs. Plaintiffs state that they “require

discovery” in order to show that the Defendant is attempting to convey an easement.

That statement alone shows that Plaintiffs have nothing but suppositions and

guesswork behind their lawsuit.

2. Plaintiffs have no evidence and there is no evidence. Defendant has

made no attempts to convey an easement as described and alleged by Plaintiffs.

3. Defendant did not authorize Ted Archibeque to complete any survey. Mr.

Archibeque was not on the Homestead Association land with any approval of the

Association, as he admitted during the Preliminary Hearing.

4. All of the questions and further speculations set forth in Plaintiffs’

paragraph 4 are outside the pleadings, the attachments and the evidence already

before the Court. No facts have been set forth before the Court to support the

allegations made by the Plaintiffs, which is why the Court denied both the temporary

and preliminary restraining order requests by Plaintiffs.

5. Even when Plaintiffs attempt to “distill the facts,” they come up with

nothing more than speculation and a refusal to accept that a Memorandum of

Understanding is a nonbinding document that holds no requirements other than good

faith. The fact that a party agrees to contemplate a scenario is not a violation of

anything. A review of the map attached by Plaintiffs to their Complaint shows that the

{05787985.DOC;1} 3

Plaintiffs’ claim that one “must travel along and/or cross the Allen Easement” is not

accurate. Travel through the community of Homestead and along the water tank trail

does not cross the Allen Easement. Restating accusations in the Complaint multiple

times does not change them into facts. There are no facts that suggest that the

Association has any intent to allow public access to the Allen Easement. There are no

facts to suggest that the Association intends to allow the public to access the National

Forest via the Allen Easement.

6. The Plaintiffs seek to rely upon accusations of Ted Archibeque who was

hired by the County, not the Association, and seek to allege what Eagle County may

want or intend to do. Eagle County is not a party to this lawsuit, and the Association

cannot control the County. The Complaint alleges that the Association owns the

property that the Allen Easement crosses, NOT the County. So factual allegations of

what the County may seek to do are insufficient to establish that the Association has

any intention to violate the easement.

7. For the Plaintiffs’ claim to be ripe there must be some action on the part of

the Association. There has been none. The Memorandum of Understanding between

the Association and Eagle County is nonbinding.

8. Plaintiffs’ footnotes show the true direction of their claims. They seek to

require someone to pay them to allow public access across their Easement. The

Association has taken no steps and no actions to convey any easement across the

Allen Easement. The only violation of the Easement is by the Plaintiffs. This lawsuit is

nothing more then a retaliatory action by the Plaintiffs after the Association filed a

{05787985.DOC;1} 4

separate suit against the Plaintiffs for Plaintiffs’ violations of the Easement Agreement.

The Association obtained both a temporary restraining order and then a preliminary

injunction against Plaintiffs for Plaintiffs’ violations of the Easement in that lawsuit. This

action is vexatious litigation by the Plaintiffs.

WHEREFORE, the Association respectfully moves the Court to dismiss the

claims asserted against the Association in the Complaint pursuant to C.R.C.P. 12(b)(5).

The Association further moves the Court to award attorney fees to the Association

based upon C.R.S. § 13-17-201, and C.R.S. § 13-17-102, et seq.

Dated this 23rd day of January 2012.

Respectfully submitted.

HINDMANSANCHEZ P.C.

/s/ Debra J. Oppenheimer [Original signature on file.] William H. Short, No. 12929 Debra J. Oppenheimer, No. 19066 5610 Ward Road, Suite 300 Arvada, Colorado 80002-1310 303-432-9999 303-432-0999 (fax) ATTORNEYS FOR DEFENDANT

{05787985.DOC;1} 5


I hereby certify that on this 23rd day of January, 2012, a true and correct copy of the foregoing REPLY IN SUPPORT OF MOTION TO DISMISS was served via CourtLink or by depositing in the U.S. Mail, postage prepaid to the following:



District Court, Eagle County, Colorado 885 Chambers Avenue P.O. Box 597 Eagle, Colorado 81631


Plaintiffs: BARBARA ALLEN, and WESLEY ALLEN FAMILY LP v. Defendant: THE HOMESTEAD OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation

Case No.: 2011 CV 1127 Div.: 3

ORDER RE: DEFENDANT’S MOTION TO DISMISS THIS MATTER is before the District Court for Eagle County, Colorado on Defendant’s Motion to Dismiss. The Court has considered the record and arguments, and dismisses this case for lack of jurisdiction. Plaintiffs have asked the Court for a permanent injunction against Defendant, in regard to an easement in Plaintiffs’ favor across Defendant’s property. Plaintiffs allege that Defendant is required to grant an easement to Eagle County which will interfere with Plaintiff’s easement. It is well-settled that, in order for a court to render declaratory judgment, an actual controversy must exist. See, e.g., Bd. of County Comm’rs v. Roberts, 159 P.3d 800, 810 (Colo. App. 2006), cert. denied. Courts may not consider matters involving speculative injuries. Id.; see also Bd. of Dirs., Metro Wastewater Reclamation Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 105 P.3d 653, 656 (Colo. 2005) (“courts should refuse to consider uncertain or contingent future matters that suppose speculative injury that may never occur”). There must be an adjudication of present rights based upon established facts. Cacioppo v. Eagle County Sch. Dist. RE-50J, 92 P.3d 453, 467 (Colo. 2004), citing Farmers Ins. Exch. v. Dist. Court, 862 P.2d 944, 947 (Colo. 1993). The injury must occur to a legally protected right or cognizable interest. Am. Civil Liberties Union of Colo. v. Whitman, 159 P.3d 707, 709 (Colo. App. 2006), cert. denied. A court cannot render an advisory opinion, nor can a court enter declaratory judgment even if it may be assumed that some kind of actual controversy may arise in the future. Id., citing Farmers Ins. Exch., supra. To issue a declaratory judgment, a court by its decision must be able to terminate uncertainty or controversy. C.R.S. §13-51-110; C.R.C.P. 57(f); Constitution Assocs. v. N.H. Ins. Co., 930 P.2d 556, 561 (Colo. 1996). Summarized: In the context of a declaratory judgment action, “jurisdiction exists only if the

controversy contains a currently justiciable issue or an existing legal controversy, rather than the mere possibility of a future claim.”

EFILED Document CO Eagle County District Court 5th JD Filing Date: Feb 21 2012 10:37AM MST Filing ID: 42608913 Review Clerk: Rhonda Higgins

2

Schwartz ex rel. Estate of Schwartz v. Schwartz, 183 P.3d 552, 553 (Colo. 2008), citing Constitution Assocs., supra, 930 P.2d at 561. A hearing must be held on a C.R.C.P. 12(b)(1) motion, unless the Court accepts a claimant’s allegations as true. Hansen v. Long, 166 P.3d 248, 250-51 (Colo. App. 2007). Further, a court may rely on undisputed facts in the record. See, e.g., City & County of Denver v. Crandall, 161 P.3d 627, 633 (Colo. 2007) (when facts undisputed, the issue is one of law). The Court finds no need to hold an evidentiary hearing in this matter. The Court has reviewed the pleadings and record in their entireties. The Court also conducted a hearing on a preliminary injunction on December 16, 2011. Both the pleadings and the undisputed facts in the record indicate that no easement has yet been granted to Eagle County, there is no appreciable risk of any easement being granted to Eagle County, and Plaintiffs’ interests have not suffered any detriment. The relief that Plaintiff seeks is speculative in nature, and there is no controversy existing for which the Court could grant relief. WHEREFORE, after a full and fair consideration of the record and arguments, it is ORDERED this 21st day of February, 2012, that Defendant’s Motion to Dismiss should be, and hereby is, GRANTED.






MOTION FOR AWARD OF ATTORNEY FEES AND COSTS COMES NOW Defendant, The Homestead Owners Association, Inc.


William H. Short and Debra J. Oppenheimer, and respectfully moves the Court to award

attorney fees and costs following the dismissal of all claims asserted against the

Association as follows:

EFILED Document CO Eagle County District Court 5th JD Filing Date: Mar 13 2012 1:54PM MDT Filing ID: 43050483 Review Clerk: Rhonda Higgins

{05804030.DOC;1} 2

C.R.C.P. 121 Certification: Pursuant to C.R.C.P. 121, §1-15 (8), the undersigned

attempted to confer with Plaintiffs on March 7, 2012. Plaintiffs did not respond, and

presumably object to the relief requested herein.

1. The Court dismissed the Plaintiffs’ Complaint on February 21, 2012 based

upon Defendant’s Motion to Dismiss submitted under C.R.C.P. 12(b).

2. C.R.S. § 13-17-201 provides that where an action is dismissed on motion

of the defendant prior to trial under Rule 12(b) of the Colorado Rules of Civil Procedure,

such defendant shall have judgment for its reasonable attorney fees in defending the

action. C.R.S. §13-17-102(4) also provides for an award of attorney's fees for the filing

of a frivolous and groundless action. Finally, the Easement which Plaintiffs claimed was

being violated provide for an award of attorney fees to the prevailing party should either

side file suit to enforce the Easement.

3. C.R.S. § 13-17-201 provides for an award of attorney fees upon dismissal

of an action alleging injury to property. Plaintiffs alleged, at paragraph 49 of their

Complaint, that damage had been done and continued to be done to their property.

See, Wark v. Board of County Com’rs of County of Dolores, 47 P.3d 711, 717 (Colo.

App. 2002) (Under C.R.C.P. §13-17-201, an award of attorney fees is mandatory when

a trial court dismisses an action under C.R.C.P. §12(b)); Kreft v. Adolph Coors Co., 170

P.3d 854, 859 (Colo. App. 2007) (An award of attorney fees is mandatory when a trial

court dismisses a tort action).

4. The Association also moves the Court to award attorney fees pursuant to

C.R.S. § 13-17-102(2) and (4). Plaintiffs brought this claim against the Association as a

{05804030.DOC;1} 3

vindictive and retaliatory attack against the Association following the issuance of the

Temporary Injunction and Preliminary Injunction against Plaintiffs in Civil Action No.

2011 CV 614 for the Allens’ violations of Easements. This vindictive and retaliatory

foray into Court came at a financial cost to the owners within the Association and should

be sanctioned.

5. C.R.S. § 13-17-102(4) provides in part that “the court shall assess

attorney fees if, upon the motion of any party or the court itself, finds that an attorney or

party brought or defended the action, or any part thereof … that lacked substantial

justification.” C.R.S. § 13-17-102(4) defines “lacks substantial justification” as

substantially frivolous, substantially groundless, or substantially vexatious.

6. Among the factors to be considered by the Court in determining whether a

claim is “groundless” are the following: 1) the extent of any effort made to determine the

validity of the action before the action or claim was asserted; (2) the extent of any effort

made after the commencement of an action to dismiss the claims not found to be valid

within an action; 3) the availability of facts to assist a party in determining the validity of

a claim. Bilawsky v. Faseehudin, 916 P.2d 586 (Colo. App. 1995).

7. This lawsuit is a patent retaliatory action by the Plaintiffs after the

Association filed a separate suit against the Plaintiffs for Plaintiffs’ violations of the

Easement Agreement, being Civil Action No. 2011 CV 614.

8. As confirmed by the Court in this matter, there was no easement being

granted by the Association to Eagle County across the Plaintiffs’ Easement. There was

no appreciable risk of an easement being granted to Eagle County and Plaintiffs had

{05804030.DOC;1} 4

suffered no detriment. The relief requested by Plaintiffs was speculative with no

controversy in existence. Plaintiffs were informed in writing by the Association and

Eagle County that there was no easement. Plaintiffs still refused to dismiss the case.

Plaintiffs’ claims were submitted only for the purpose of retaliation against the

Association, and therefore are frivolous or substantially vexatious, entitling the

Association to an award of reasonable attorney fees and costs. A claim or defense is

frivolous if the proponent can present no rational argument based on the evidence or

law in support of that claim or defense. Western United Realty, Inc. v. Isaacs, 679 P.2d

1063 (Colo. 1984). A vexatious claim is one brought or maintained in bad faith to annoy

or harass and may include conduct that is arbitrary, abusive, stubbornly litigious or

disrespectful of trust. Bockar v. Patterson, 899 P.2d 233 (Colo. App. 1994); Engle v

Engle, 902 P.2d 442 (Colo. App. 1995); O’Neill v. Simpson 958 P2d 1121 (Colo.1998);

Mitchell v. Ryder, 104 P.3d 316 (Colo. App. 2004).

9. Plaintiffs’ motives are demonstrated when reviewing the testimony of

Barbara Allen. She stated under oath that she was told to file this action by the attorney

who was representing her in her defense of 2011 CV 614. In addition, the footnotes in

Plaintiffs’ Response to the Motion to Dismiss reflect that this action was also in bad

faith. Plaintiffs’ footnotes reflect that they seek to require someone to pay them to allow

public access across their Easement. The Allens can negotiate with Eagle County

regarding their desire to seek payment for access. Filing a groundless lawsuit against

the Association in an effort to leverage payment is bad faith litigation by the Plaintiffs.

{05804030.DOC;1} 5

10. The Association is entitled to its attorney fees pursuant to the provisions of

the 1996 Settlement Agreement and the Easement. Section 6.1 of the Easement

provides:

6.1 General. Grantor and Grantee shall be entitled to seek specific performance of this Easement by the other party or may seek, by injunction or restraint, to prevent a violation or attempted violation of this Easement or to bring an action for damages, or any of them without the necessity of making an election. The prevailing party shall be entitled to reasonable attorneys' fees and costs as determined by the court in any litigation to enforce the terms of this Easement.

Section 17 of the Settlement Agreement provides: 17. Attorneys' Fees. In the event of litigation or other legal proceedings to enforce the parties' rights or obligations hereunder, the prevailing party shall be entitled to an award of reasonable attorneys' fees. 11. The Association obtained complete relief on the issues raised in the

Motion to Dismiss, which was dismissal of the Plaintiffs’ Complaint against it pursuant to

C.R.C.P. 12(b). The Association prevailed on all issues which it contested. Therefore,

the Association is the prevailing party.

12. The Association has attached hereto as Exhibit A, and incorporates

herein by reference, the Affidavit of Attorney Fees and Costs and associated invoices.

The invoices detail the time incurred, the reasons for the billing activities, and the costs

paid. The Affidavit establishes that the time and charges were reasonable and

necessary. The Association’s Bill of Costs is attached as Exhibit B.

13. Pursuant to C.R.S. § 13-17-201, C.R.S. § 13-17-102(4), the Easement

and the Settlement Agreement, the Association is entitled to an award of attorney fees

in its favor, and against Plaintiffs Barbara A. Allen and Wesley Allen Family L.P., jointly

{05804030.DOC;1} 6

and severally, in the amount of $6,456.00 as of March 13, 2012, plus costs in the

amount of $422.65, plus interest at the statutory rate of 8% per annum, compounded

annually.

WHEREFORE, the Association respectfully moves the Court to award attorney

fees and costs for the Court’s dismissal of Plaintiffs’ Complaint pursuant to C.R.C.P.

12(b). The Association requests the attorney fee award based upon C.R.S. § 13-17-

201, C.R.S. § 13-17-102, et seq., the Easement and the Settlement Agreement. A form

of Order is attached.

Dated this 13th day of March 2012.


HINDMANSANCHEZ P.C.


{05804030.DOC;1} 7


I hereby certify that on this 13th day of March, 2012, a true and correct copy of the foregoing MOTION FOR AWARD OF ATTORNEY FEES AND COSTS was served via CourtLink or by depositing in the U.S. Mail, postage prepaid to the following:






{05805829.DOC;1}




ORDER GRANTING MOTION FOR AWARD OF ATTORNEY FEES AND COSTS

THE MATTER OF Defendant The Homestead Owners Association, Inc.’s Motion for Award of Attorney Fees and Costs has come before the Court and the Court is fully advised as to the circumstances. The Motion is GRANTED. Pursuant to C.R.S. § 13-17-201, C.R.S. § 13-17-102(4), the Easement and the Settlement Agreement, the Association is awarded attorney fees and costs in its favor, and against Plaintiffs, Barbara A. Allen and Wesley Allen Family L.P., jointly and severally, with fees in the amount of $6,456.00 plus costs in the amount of $422.65 (as of March 13, 2012), plus interest at the statutory rate of 8% per annum, compounded annually.

Dated: , 2012.

BY THE COURT:



EFILED Document CO Eagle County District Court 5th JD Filing Date: Mar 16 2012 11:50PM MDT Filing ID: 43145680 Review Clerk: TERI FARNEY



RESPONSE TO MOTION FOR ATTORNEY FEES

Plaintiffs Barbara Allen and Wesley Allen Family LP, through counsel, object as

follows:

1. Defendant The Homestead Owners Association, Inc. filed a Bill of

Costs and Motion for Attorney Fees on March 13, 2012. The basis of the fee

was not disclosed and the motion should be denied as non-complaint with

C.R.C.P. 121 § 1-22(2)(b). The rule requires that “[t]he motion shall be

accompanied by any supporting documentation, … the fee agreement between


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the attorney and client, … .” (emphasis added.) The word “shall” indicates that

the requirement is mandatory. Homestead did not provide its fee agreement

with its attorneys and now has the opportunity to gin up more fees by willfully

protracting the only issue remaining before the trial court.

2. A notice of appeal was filed on March 16, 2012.

3. Homestead’s Bill of Costs appears to be reasonable. It is

appropriate, under the rule, to have the total set forth in the Bill of Costs taxed

against Plaintiffs. It is not, however, appropriate to award attorney fees.

4. Assuming, arguendo, that attorney fees stemming from a

noncompliant motion could be awarded, then the attorney fees are wholly

excessive in this matter. By way of example, in reference to Exhibit 1 to the

Motion for Attorney Fees:

a. Homestead requests that the Allens pay .6 hours of time before

the Complaint was served.

b. Homestead double-bills .6 hours of “reviewing” time on

12/9/2011 when one attorney’s review should have sufficed.

c. Homestead is request fees for a matter on 12/14/2011 which it

has redacted inappropriately (and this .4 hours should be

denied in its entirety as counsel did not see fit to reduce the

Eagle County time).

d. On 12/15/2011, Homestead spent 2.2 hours reviewing

miscellaneous documents and conferring with Eagle County; no

Eagle County witnesses were called or appeared and this time

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appears to be unnecessarily incurred. Perhaps half of that time

might have been legitimate.

e. On 12/16/2011, Homestead’s attorneys billed for “drive time”

when competent local counsel is easily obtainable in Eagle

County. There is no basis for an award of Homestead’s

attorney’s travel time. Considering that the hearing was one

hour, counsel billed for 4.5 hours of drive time which was not

reasonably or necessarily incurred.

f. Homestead billed 5.2 hours attorney time and 1 hour paralegal

time on a motion to dismiss – 3.2 hours of which was alleged

spent on less than one page of the motion to dismiss. Again,

something closer to 4 hours would have been more appropriate.

g. The (.3 hours) time spent on 1/12/2012 is wholly unnecessary

to this case.

h. Amazingly, Homestead’s attorneys spent .9 hours on

1/17/2012 drafting an e-mail to undersigned counsel to

request an enlargement of time to file its motion to dismiss

along with a motion and order for an enlargement of time – that

e-mail is attached as Exhibit 1 to this Response. Half an hour

would have been generous for a stock motion.

i. Homestead’s attorneys spent .2 hours of attorney time for

“Court grants extension of time to file reply to motion to

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dismiss.” That time could neither be related to the described

entry.

j. Homestead’s attorneys also spent .2 hours of attorney time for

“Court grants motion to dismiss; … .” It does not take .2 hours

nor attorney time for the Court to take some action.

5. Subtracting .6, .6, .4, 4.5, 2.2, 1.1, 1.2, .3, .5, .2, and .2 yields a

deduction of 11.8 hours, at the $270/hour rate, this is a reduction of

$3,186.00.

6. The facts are that one one-hour hearing was held; two motions

were filed by Defendant (one to dismiss, one for an enlargement of time). A

total attorney fee of $6,456.00 less $3,186.00 (which equals $3,270.00) is

probably closer to the amount of reasonable and necessarily incurred attorney

time on this case, particularly if Homestead had used local counsel instead of

more expensive out-of-town counsel.

7. If the Court fails to deny Homestead’s fees as noncompliant with

C.R.C.P. 121 §1-22, or disagrees with the $3,270.00 reasonable lodestar figure

(Plaintiffs do not dispute the actual costs of $422.65), Plaintiffs request a

hearing on fees and discovery as to the redacted items on Defendant’s bills.

8. Finally, the only basis for attorney fees lies in the easement

agreement cited by Plaintiffs and Defendant. Defendant’s other allegations

remain wholly without merit.

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WHEREFORE, Plaintiffs Barbara Allen and Wesley Allen Family LP request that

the Court deny the defendant’s motion for fees, and for any other relief the

Court deems necessary.

Respectfully submitted this 19th day of March, 2012, s/ James C. Plott James C. Plott Attorney for Plaintiffs

Certificate of Mailing I certify that a copy of the foregoing Response was sent to the following via LexisNexis File & Serve: William H. Short, #12929 Debra J. Oppenheimer, #19066 HindmanSanchez P.C. 5610 Ward Road, Suite 300 Arvada, Colorado 80002-1310 Dated March 19, 2012 by s/ James C. Plott.



ORDER RE: RESPONSE TO MOTION FOR ATTORNEY FEES

This matter comes before the Court on the motion of The Homestead Owners Association, Inc. for an award of attorney fees pursuant to the 1996 easement agreement.

Plaintiffs do not dispute the Bill of Costs filed by Defendant in the amount of $422.65.

Defendant’s motion for attorney fees fails to comply with C.R.C.P. 121 § 1-22(2)(b). The rule requires that “[t]he motion shall be accompanied by any supporting documentation, … the fee agreement between the attorney and client, … .” The importance of complying with the rule is underscored by two legitimate purposes: first, it allows the opposing party a fair opportunity to examine the invoices submitted by the movant. Second, it puts an end to the superfluous litigation – as well as increased fees and costs – that results when parties fail to comply with the rule, which necessarily involves additional attorney and court time.

Accordingly, Homestead’s motion for attorney fees is denied as noncompliant with C.R.C.P. 121 § 1-22.

The Clerk of the Court is directed to tax costs of $422.65 against Plaintiffs. SO ORDERED.


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Dated March ___, 2012. BY THE COURT: District Court Judge

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J.C. Plott

From: Molly C. Lucas <[email protected]>

Sent: Tuesday, January 17, 2012 10:21 AM

To: '[email protected]'

Subject: Allen v. Homestead, 2011cv1127

Mr. Plott -

Debra was unfortunately out sick for a few days last week and is in trial today. We would therefore like to request a brief

extension on our Reply in Support of Motion to Dismiss which is currently due today. We plan to request an extension

through and including Monday the 23rd of January. Can you please let me know if you will agree to this extension or if

you plan to oppose the request.

Thank you,

Molly

Molly C. Lucas :: Associate

5610 Ward Road, Suite 300, Arvada, CO 80002-1310

303.991.2008 Direct :: 303.432.9999 Main ::

303.991.2009 Fax

[email protected] :: www.hindmansanchez.com

Links ::

This law firm may be acting as a debt collector. Any information obtained may be used for this

purpose. Any information contained in this electronic message is attorney privileged and confidential

information intended only for the use of the individual or entity named above. If you have received

this message in error, please notify us immediately at 303.432.9999 or at

[email protected]. Destroy all copies of this message and any attachments.


COURT OF APPEALS, STATE OF COLORADO

101 W. Colfax Ave., Ste. 800

Denver, CO 80202

Telephone 303-837-3785

Appeal from the District Court, Eagle County,

885 Chambers Avenue

P.O. Box 597

Eagle, Colorado 81631

Honorable R. Thomas Moorhead,

District Court Judge

Case No. 2011CV1127

Plaintiffs-Appellants:

BARBARA ALLEN and WESLEY ALLEN FAMILY LP

v.

Defendant-Appellee:

THE HOMESTEAD OWNERS ASSOCIATION, INC.

Attorney for Appellants:

James C. Plott, Atty. Reg. 35985

P.O. Box 211

69 Edwards Access Rd., Ste. 11C

Edwards, CO 81632

Telephone: 970-763-7466

E-mail: [email protected]

COURT USE ONLY

Case No. 12CA572

DESIGNATION OF RECORD

Plaintiffs-Appellants Barbara Allen and Wesley Allen Family LP (the

“Allens”), through counsel, submit their designation of record on appeal:

EFILED Document CO Eagle County District Court 5th JD Filing Date: Mar 23 2012 2:35PM MDT Filing ID: 43282440 Review Clerk: TERI FARNEY

EFILED Document CO Eagle County District Court 5th JD Filing Date: Apr 3 2012 1:07PM MDT Filing ID: 43450617 Review Clerk: Rhonda Higgins

{05813238.DOC;1}




ORDER GRANTING DEFENDANT’S REPLY IN SUPPORT OF AWARD FOR ATTORNEY FEES AND COSTS

THE MATTER OF the Defendant’s Reply in Support of Award for Attorney Fees and Costs has come before the Court and the Court is fully advised of the premises. The Motion is GRANTED. The Defendant is granted attorney fees and costs for the Court’s dismissal of Plaintiff’s Complaint based upon C.R.S. § 13-17-201, C.R.S. § 13-17-102, the Easement and the Settlement Agreement.

Dated: April , 2012.

BY THE COURT:





MOTION TO STRIKE OUT-OF-TIME REPLY BRIEF

CONCERNING ATTORNEY FEES

Plaintiffs Barbara Allen and Wesley Allen Family LP, through counsel, move the

Court to strike Homestead’s out-of-time reply brief filed March 3, 2012:

Certificate of Conferral

Defendant The Homestead Owners Association, Inc. (“Homestead”) declined to

withdraw its out-of-time reply and it opposes the relief sought in this motion,

citing inadvertent error.


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Argument

1. Defendant The Homestead Owners Association, Inc. filed a Bill of

Costs and Motion for Attorney Fees on March 13, 2012.

2. Plaintiffs filed a response on March 19, 2012.

3. Homestead’s reply brief was due on March 27, 2012. See C.R.C.P.

121 § 1-22(2)(b) and 121 § 1-15(1)(c).

4. Homestead filed an out-of-time reply on April 3, 2012.

5. Homestead neither requested nor received an enlargement of time

in which to file their reply brief. Instead, Homestead waived its opportunity to

file a reply to Plaintiffs’ opposition.

6. Plaintiffs are prejudiced by at least one new argument in

Homestead’s reply brief. The reply brief introduces a new theory concerning

the appropriateness of travel time (not discussed in the motion). Homestead

also asserts an impertinent matter: according to Homestead’s counsel, no

attorneys in the Fifth Judicial District possess the same prowess as

Homestead’s attorneys.

7. For these reasons, pursuant to C.R.C.P. 12(f), it is appropriate to

strike the out-of-time reply brief filed on March 3, 2012.

WHEREFORE, Plaintiffs Barbara Allen and Wesley Allen Family LP request that

the Court strike Homestead’s reply brief concerning attorney fees, and for any

other relief the Court deems necessary.

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Respectfully submitted this 4th day of April, 2012, s/ James C. Plott James C. Plott Attorney for Plaintiffs

Certificate of Mailing I certify that a copy of the foregoing Motion to Strike was sent to the following via LexisNexis File & Serve: William H. Short, #12929 Debra J. Oppenheimer, #19066 HindmanSanchez P.C. 5610 Ward Road, Suite 300 Arvada, Colorado 80002-1310 Dated April 4, 2012 by s/ James C. Plott.



ORDER RE: MOTION TO STRIKE OUT-OF-TIME REPLY BRIEF

CONCERNING ATTORNEYS FEES

This matter comes before the Court on the motion of Plaintiffs Barbara Allen

and Wesley Allen Family LP to strike the Homestead Owners Association, Inc.’s

out-of-time reply brief filed March 3, 2012. The reply brief was filed out-of-time

without leave of the Court, and shall be stricken from the record.

SO ORDERED.

Dated April _____, 2012.

BY THE COURT:

District Court Judge


EFILED Document CO Eagle County District Court 5th JD Filing Date: Apr 9 2012 10:11AM MDT Filing ID: 43574749 Review Clerk: N/A

{05820598.DOC;1}






RESPONSE TO PLAINTIFFS’ MOTION TO STRIKE COMES NOW Defendant, The Homestead Owners Association, Inc.


William H. Short and Debra J. Oppenheimer, and respectfully replies to Plaintiff’s Motion

to Strike Out-of-Time Reply Brief Concerning Attorney Fees as follows:

1. Defendant acknowledged to Plaintiffs that the Reply Brief was calendared

and filed inadvertently pursuant to the prior time rules. However, Plaintiffs are not

prejudiced by the delay caused by Defendant.


{05820598.DOC;1} 2

2. Plaintiff has challenged the reasonableness of the Association’s attorney

fees while agreeing that the Defendant is entitled to attorneys fees. Thus the matter

must be set for hearing pursuant to C.R.S. § 13-17-103 and City of Littleton v. State,

832 P.2d 985 (Colo. App. 1991).

3. The Association had previously attached the Affidavit of Attorney Fees

and Costs and associated invoices to the original request. The invoices detail the time

incurred, the reasons for the billing activities, and the costs paid. The Affidavit

establishes that the time and charges were reasonable and necessary. The

Association’s Bill of Costs was also attached to the original request.

4. The determination of the reasonableness of attorney fees is a question of

fact for the trial court and will not be disturbed on appeal unless patently erroneous and

unsupported by the evidence. Fang v. Showa Entetsu Co., 91 P.3d 419 (Colo. App.

2003). Thus, the reasonableness of the amount of attorney fees awarded is reviewed

under an abuse of discretion standard. Deighton v. City Council, 3 P.3d 488 (Colo. App.

2000)

5. Plaintiffs’ only claims of prejudice are that the Defendant responded to the

attack on the reasonableness of the travel time and brought up the expertise of

HindmanSanchez. The same arguments regarding both issues will be made by

Defendant when the Court sets the matter for hearing. The Reply Brief simply provides

the arguments to the Court in advance.

{05820598.DOC;1} 3

6. The expertise of an attorney is NOT an inappropriate consideration. The

skill of an attorney requisite to perform the legal service properly is one of the specific

considerations listed in C.R.P.C. 1.5.

7. Pursuant to C.R.S. § 13-17-201, C.R.S. § 13-17-102(4), the Easement

and the Settlement Agreement, the Association is entitled to an award of attorney fees

in its favor, and against Plaintiffs Barbara A. Allen and Wesley Allen Family L.P., jointly

and severally.

WHEREFORE, the Association respectfully moves the Court to deny the

requested motion to strike and to set this matter for a hearing on the award of attorney

fees and costs for the Court’s dismissal of Plaintiffs’ Complaint pursuant to C.R.C.P.

12(b). A form of Order is attached.

Dated this 24th day of April 2012.


HINDMANSANCHEZ P.C.


{05820598.DOC;1} 4


I hereby certify that on this 24th day of April, 2012, a true and correct copy of the foregoing RESPONSE TO PLAINTIFFS’ MOTION TO STRIKE was served via LexisNexis File and Serve to the following:


/s/ Susan Klein [Original signature on file.]

{05820656.DOC;1}




ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE AND ORDERING AN ATTORNEY FEE HEARING

THE MATTER OF Plaintiffs’ Motion to Strike Out-of-Time Reply Brief Concerning Attorney Fees and Defendant’s Response has come before the Court and the Court is fully advised as to the circumstances. The Motion is DENIED. IT IS FURTHER ORDERED that Defendant shall contact the Court to set a hearing on the issue of attorney fees.

Dated: , 2012.

BY THE COURT:



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1

DISTRICT COURT, EAGLE COUNTY, COLORADO

Case No. 11-CV-1127

--------------------------------------------------------

COURT HEARING - 12/16/11

--------------------------------------------------------

Plaintiffs:BARBARA ALLEN and WESLEY ALLEN FAMILY, LP,

V.

Defendant:THE HOMESTEAD OWNERS ASSOCIATION, INC.

--------------------------------------------------------

The hearing in this transcript took place onDecember 16, 2011 before the Honorable Thomas Moorhead,Judge of the District Court.

This transcript is a complete transcript ofthe above-mentioned proceedings.

A P P E A R A N C E S

FOR THE PLAINTIFF:J.C. Plott, Esq.

FOR THE DEFENDANT:Debra Oppenheimer, Esq.

EFILED Document CO Eagle County District Court 5th JD Filing Date: Jun 11 2012 10:20AM MDT Filing ID: 44732535 Review Clerk: N/A

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DECEMBER 16, 2011, 3:09 P.M.

P R O C E E D I N G S

THE COURT: Good morning, please be seated.

The Court will call Case No. 2011CV1127, Allen versus

the Homestead Owners Association. I would ask Counsel

to make their appearances for the record, please.

MR. PLOTT: J. C. Plott, for the Plaintiffs

and I have Barbara Allen to my right.

THE COURT: Good morning.

THE PLAINTIFF: Good morning.

MS. OPPENHEIMER: Good morning, Your Honor.

Debra Oppenheimer, on behalf of Homestead Owners

Association. I have Tracy Erkson(ph), the manager of

the Association, to my left.

THE COURT: Good morning. And we are here

on a request for -- it came in as a request for a

temporary restraining order. I had indicated that we

needed to set it for hearing and to give notice to the

Homestead Owners Association and that obviously has

occurred. Each side will have 50 minutes this morning

to use as you see appropriately. And Mr. Plott, you may

proceed.

MR. PLOTT: Thank you, Your Honor.

I have exhibit books. We are not able to

reach a stipulation concerning exhibits, so could I pass

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one to the witness stand and one to the bench?

THE COURT: That would be fine.

MR. PLOTT: And counsel for the Homestead

has one.

THE COURT: Thank you.

MR. PLOTT: And Your Honor, the Plaintiff's

will call Ted Archibeque, please.

THE COURT: Thank you. If Mr. Archibeque

would step forward to the witness stand.

Good morning, Mr. Archibeque.

THE WITNESS: Good morning.

THE COURT: Would you please raise your

right hand.

(Witness sworn.)

THE WITNESS: I do.

THE COURT: Thank you. Please be seated.

Go right ahead.


TED ARCHIBEQUE,

Called as a witness on behalf of the Petitioner, being

first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. PLOTT:

Q. Good morning, sir. Could you spell your last

name, please for the record?

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A. A-r-c-h-i-b, as in boy,-e-q-u-e.

Q. Super. Can you tell us what you do for a living?

A. I'm in the land surveying business.

Q. And are you a professional land surveyor?

A. Yes.

Q. Okay. And you do survey work here in Eagle

County?

A. Yes.

Q. And you also do work for Eagle County?

A. Yes.

Q. Earlier this year did you survey what I will call

the Allen Easement?

A. Yes.

Q. Okay. If you will turn to in that blue binder in

front of you, if you will turn to tab number two and

open that up. Can you tell me what that is?

A. It appears to be an Improvements Survey Plat.

Q. Okay. And does the Allen Easement appear on this

plat?

A. Yes, it does.

Q. And is this Improvement Survey Plat a fair and

accurate depiction of this Allen Easement?

A. It looks accurate.

MR. PLOTT: Your Honor, move the admission

of Plaintiff's 2.

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THE COURT: Any objection?

MS. OPPENHEIMER: Yes, Your Honor, I object.

Your Honor, thee are all kinds of notations on here.

This is not a certified document. This is not something

that he's testified as to the identification, whose

handwritings are on here, all the additional notations

on here. I object.

THE COURT: For the purposes of todays

hearing only, I will admit it at this time.


BY MR. PLOTT:

Q. Can you tell the Court when the last time was

that you were on the Allen Easement, if you know off

hand?

A. If memory serves, about a month ago, six weeks.

Q. Okay. And do you recall how wide the Allen

Easement is?

A. I believe it is 50 feet.

Q. Okay. And for comparison purposes, is this -- is

the width of this courtroom greater or less than 50

feet; do you know?

A. I'm guessing it is about 50 feet.

MS. OPPENHEIMER: I am going to object to

his guessing.

THE COURT: That will be sustained.

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MR. PLOTT: That's fine.

BY MR. PLOTT:

Q. Okay. Is part of your work following your survey

of the Allen Easement, both -- let me take a step back.

Where does the Allen Easement begin? Where would you

consider its origination point?

A. If you're coming from public right-of-way, I

would say it originates on a cul-de-sac within Homestead

Subdivision.

Q. Okay. And do you know where it terminates?

A. It terminates on the Allen property.

Q. Okay. And do you know that to be called the

"Allen Upper 80?"

A. Yes.

Q. Okay. Have you surveyed any trails subsequent to

your survey of the Allen Easement earlier this year?

Have you surveyed any trails subsequent to that that

will cross or that have the potential to cross the Allen

Easement?

A. Yes.

Q. Did you bring any of those surveys with you

today?

A. I did.

Q. Could I see them?

A. Yes.

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MR. PLOTT: Your Honor, may I approach the

witness?

THE COURT: Yes, you may.

MR. PLOTT: I haven't seen these before

today. Do you want to look at these with me?

MS. OPPENHEIMER: Go right ahead and ask

what you're going to ask.

MR. PLOTT: Thanks.

BY MR. PLOTT:

Q. Mr. Archibeque, I am going to refer you to --

Your Honor, may I return the exhibit to his -- to the

witness?

THE COURT: Yes, you may. Uh-huh.

MS. OPPENHEIMER: Could you identify it, so

it's easier to track what you're referencing.

MR. PLOTT: I think we're going to -- Your

Honor, I am going to mark this for -- to follow my

binder, if that's all right with the Court. Can I mark

this as Plaintiff's 10?

THE COURT: Sure.

MR. PLOTT: I'm going to put a Py 10 on the

upper right-hand corner of page one. So I have a

document marked as Plaintiff's 10.

BY MR. PLOTT:

Q. Mr. Archibeque, what is that document marked as

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Plaintiff's 10?

A. It's a legal description.

Q. And that exhibit is composed of two pages?

A. Yes.

Q. And what is the second page?

A. They're both identifying a piece of ground --

it's a portion of the Allen tract.

Q. Okay. And does the trail that you surveyed cross

that Allen tract?

A. Yes.

Q. And that is depicted on the second page of

Plaintiff's 10?

A. Yes, graphically.

Q. Okay.


of Plaintiff's 10.


MS. OPPENHEIMER: May I Voir Dire?


VOIR DIRE

BY MS. OPPENHEIMER:

Q. Who hired you to do that survey?

A. Eagle County Government.

Q. And did Homestead ever authorize that or indicate

that that was correct or what they had planned?

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A. I'm assuming that.

Q. I'm not asking for assumptions. Did Homestead

ever contact you and direct you and give you that legal

description?

A. No.

Q. And Homestead never told you that was a trail

that they were contemplating granting?

A. Correct.

Q. Is that correct?

A. That's correct.

MS. OPPENHEIMER: I'd object, Your Honor to

relevant. Homestead had no connection to that document.

THE COURT: It will be admitted for the

purpose of this hearing only.


And I appreciate your time, sir. Thank you

for coming down this morning. I have no further

questions of this witness.

THE COURT: Do you wish to cross-examine?

MS. OPPENHEIMER: Yes, Your Honor.

CROSS-EXAMINATION

BY MS. OPPENHEIMER:

Q. Mr. Archibeque, you said the last time you were

on the easement was a month to six-weeks ago?

A. That's a guess.

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Q. What were you doing?

A. We were surveying paths for the County.

Q. Paths, plural?

A. Correct.

Q. Meaning multiple options?

A. Meaning different walking paths on the site.

Q. Because nothing's final and nothing's been

confirmed, correct?

A. Correct.

Q. Are you familiar with the Homestead community?

A. Yes.

Q. Are you familiar with the water trail?

A. Yes.

Q. And isn't it correct that the Water Tank Trail at

no point crosses the Allen Easement?

A. That's correct.

Q. And isn't it also correct that you can get from

the "L" across sidewalks within Homestead over to the

watertank trail and get to the United States Forest

Service land without ever crossing the Allen Easement?

A. Yes.

MS. OPPENHEIMER: Thank you, Mr. Archibeque.

THE COURT: Thank you. Redirect?


REDIRECT EXAMINATION

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BY MR. PLOTT:

Q. Because Counsel asked about going through

Homestead, and I think your graphical representation may

be of some assistance to the Court, the premarked

exhibits and the Memorandum of Understanding are

lettered. I am going to refer to them as they are

marked in the Memorandum of Understanding so that we

have a graphical representation and can better

understand what it is that we are talking about here.

So I ask you, Mr. Archibeque, to turn to tab

number one. And if you will go to the back of tab one,

to the colored documents, the colored map. And the

first map is Exhibit A -- or is labeled "Exhibit A," in

side tab one.

A. Yep, I'm there.

Q. Do you understand what Exhibit A represents?

A. I guess I'm not sure. I don't know.

Q. Okay. Are you familiar enough with the -- as

Counsel asked you how you could traverse from or via

Homestead's sidewalks through to the U.S. Forest Service

land. Are you familiar with the Homestead?

A. Yes.

Q. And is the Homestead filing to, I suppose, right

above the area marked "Homestead Open Space"?

A. Yes.

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Q. Okay. And East Lake Creek Ranch is the -- what

we locally refer to as the "L" and that's what the

County purchased recently?

A. Yes.

Q. And "Allen," the box marked "Allen," is the

"Allen Upper 80"?

A. Yes.

Q. And this is all -- would you say this is to

scale?

A. It appears to be.

Q. Okay. And if you will turn to Exhibit B, which

is the next page. That's a close up section of a parcel

and portion of Exhibit A; is that right?

A. It is, yes.

Q. Okay. And would you say that's to scale?

A. There is a scale indicated on it.

Q. Do you -- in your opinion is this a reasonably

fair and accurate depiction of the lay of the land?

THE COURT: Of the what? I'm sorry, I

didn't hear.

MR. PLOTT: Of the lay of the land.

THE COURT: Oh, thank you.

THE WITNESS: Yes.

BY MR. PLOTT:

Q. Okay. And as far as -- since you were doing

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trail surveying work and we are talking about how to

access the Homestead Trails, I would like you to turn to

Exhibit C. And this also, what would you call this, how

would you describe Exhibit C?

A. It appears to depict a trail.

Q. A trail from Eagle River Preserve and the main

Eco Bus Stop to the Forest Service Parcel?

A. Yes, that's what it's labeled.

Q. Does that trail depict itself going into the

Homestead Subdivision sidewalks or through the East Lake

Creek Ranch L?

A. It shows it going into the L.

MR. PLOTT: Your Honor, I'd like to -- this

is somewhat awkward because of the binder, but I would

like to move the admission of 1A, 1B and 1C, the maps.


MS. OPPENHEIMER: No.

THE COURT: They will be admitted.

MR. PLOTT: All right. Thank you, Your

Honor. And thank you for your time, sir.

THE COURT: Any recross?

MS. OPPENHEIMER: No, sir.

THE COURT: Thank you. Is this witness

excused?

MR. PLOTT: Yes, Your Honor.

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THE COURT: Thank you. Thank you very much,

Mr. Archibeque.

Mr. Plott, you may call your next witness.

MR. PLOTT: Your Honor, we call Barbara

Allen, please.

THE COURT: Thank you. Ms. Allen, I ask you

to step forward to the witness stand, please. You can

just leave that right there. Ma'am, please raise your

right hand.

(Witness sworn.)

THE WITNESS: I do swear.

THE COURT: Thank you. Please sit down.

You may proceed, Mr. Plott.


BARBARA ALLEN,

Called as a witness on behalf of the Petitioner, being

first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. PLOTT:

Q. Good morning, Ms. Allen.

A. Good morning.

Q. You are the Plaintiff in this case, right?

A. Yes, I am.

Q. Or a Plaintiff in this case. What is your

interest in the Allen Easement?

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A. This is the only way that my brother and I can

access our property, which is the 80 acres and I would

like to sell two 35s, one or two 35s up there on the 80

and I would like to build for myself a caretaker house.

Q. Okay. Just to be clear, the 80 acres that you

are talking about are the 80 acres that are referred to

in Exhibits 1A and 1B?

A. 1A and 1B?

Q. Yes. If you'll turn to tab one and go to the --

A. Okay.

Q. -- colored maps at the back.

A. Okay. Exhibit A or B?

Q. Exhibit A and B both reflects your Allen Upper

80?

A. Yes.

Q. Is that right? Okay.

A. Yes. That is the Allen Upper 80, which is to the

south of East Lake Creek Ranch, which is -- okay.

Q. Let me ask you about the Memorandum of

Understanding that is in tab one. Are you familiar with

that document?

A. The MOU?

Q. Yes, I am familiar with that?

A. And where did you get it?

Q. I got it at the first Homestead meeting, where it

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was presented, I believe, it was March 10th.

A. Okay. And is th entirety of the tab one, the

memorandum, a copy of the memorandum that you received

from Homestead?

Q. Yes.

MR. PLOTT: Okay. Your Honor, move the

admission of tab one, the entirety.


MS. OPPENHEIMER: Yes, Your Honor. The

document is unsigned. The document has notes on it.

The document has been marked up. She has no idea if

this is the accurate MOU that has been signed and is in

existence. This is just a document she claims she

picked up at a meeting.

THE COURT: All right. For the purposes of

this hearing only it will be admitted.


BY MR. PLOTT:

Q. Now, you're familiar with the depictions of the

properties that are in the back of that Memorandum of

Understanding; is that right?

A. Yes, I am familiar with the Lion Court Well.

Q. Okay. And why are you familiar with the land?

A. Oh, are you talking about the entire -- all these

maps, A, B and C?

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Q. Well --

A. Because --

Q. -- we only have a certain amount of time, so --

A. Okay.

Q. -- just if you can briefly explain it?

A. I have been familiar with them since my dad

bought the ranch in 1959 and I've been -- I lived on the

ranch two years.

Q. Okay. And your father actually owned Homestead

before it became Homestead?

A. That is true.

Q. Are you familiar with the East Lake Creek Ranch

parcel that we call the "L"?

A. Yes.

Q. And do you know who owned that prior to the Eagle

County purchase?

A. Yes. I know Berford(ph) owned it first and it

was sold to Scutter Webster(ph) in '69.

Q. Do you know if the public has been allowed to

access the East Lake?

A. They have not.

Q. The public has not previously been allowed to

access that "L"?

A. No.

Q. Well, we're here today seeking an injunction.

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What has Homestead done to bring about this action?

A. Well, if you start at the beginning, there were

trees that are planted on my easement. There are

utilities, there are boulders and I was -- they refused

to let me even run a masticator over it in order to

reach my property.

MS. OPPENHEIMER: Your Honor, I am going to

object at this point. If we are going to start going

down the trail of what she believes is in the easement

in the other lawsuit, which she purposely did not join

this action to. This Court is aware of it.

THE COURT: Right.

MS. OPPENHEIMER: You handled the very first

TRO. She chose not to make this a claim in that action,

which she could have done. I am going to object if she

is going to start relitigating or trying to argue about

whether or not she had a right to run a grader down her

-- without preapproval as was required by the easement.

THE COURT: So your objection is as to

relevancy?

MS. OPPENHEIMER: Yes.

THE COURT: The objection will be overruled.

BY MR. PLOTT:

Q. Please continue explaining what Homestead has

done to keep you from reaching your property?

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MS. OPPENHEIMER: Objection, Your Honor. He

is not seeking her access.

THE COURT: Objection will be overruled.

BY MR. PLOTT:

Q. Please answer the question?

A. You want to know what Homestead has done to keep

me from reaching my property?

Q. Yes.

A. Okay. That's about it. I'll stop with that.

Not let me doing the masticator to be able to drive over

it.

Q. And you mentioned trees and boulders?

A. Uh-huh.

Q. At present, is Homestead doing anything that you

believe as trying to impair your access?

A. Yes, absolutely. If they allow the road -- or

excuse me, the trail to be surveyed and put across my

easement, then that will cause me extreme difficulty in

getting my road through because there is a stack of

papers, I understand, with County regulations if it is a

County trail, that I have to go through before I can get

my road.

Q. Has Homestead talked with you at all about

allowing the public across your easement?

A. They have not, but they did -- my attorney, yes,

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and he said that they were going to do it anyway.

Q. Let me stop you there because I don't.

A. I'm sorry.

Q. You are talking about different counsel?

A. Yes.

Q. And I don't -- I want to caution you before you

go off and release something that might be privileged.

A. I'm sorry.

Q. I want you to turn to Exhibit C -- Exhibit 1C,

which is a map at the back of the Memorandum of

Understanding?

A. Okay. Exhibit B?

Q. Exhibit C. "C," as in "Charley."

A. "C," okay.

Q. Now, do you understand what this map depicts?

A. Yes. It's showing a trail and it's the Homestead

Open Space. It is about 18 acres and it goes from

Edwards Village to Cameron Street and on into the

north/south line 80 of the "L," where the proposed

parking lot will be.

Q. Okay. And is it your belief that Homestead

intends to allow the public to cross from the East Lake

Creek Ranch "L" to the National Forest over your

easement?

MS. OPPENHEIMER: I'm going to object.

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Calls for speculation.

THE WITNESS: There's no other way.


THE COURT: Okay. One moment. Okay. Calls

for speculation. Objection is overruled. Thank you.

THE WITNESS: I'm sorry.

BY MR. PLOTT:

Q. Will you please answer the question?

A. Answer the question. There is no other way to

get -- if they are going to the forest, which has always

been their purpose and suggestion when they bought the

"L," they have to go over my easement, there is no other

way.

Q. And if you turn to Exhibit B, which is 1B, if you

had to depict -- you're familiar with your easement?

A. I'm sorry, say that again.

Q. You are familiar with your easement?

A. Yes, I am familiar with my easement.

Q. Does your easement cross the trail to USFS parcel

that is shown on Exhibit B?

A. Yes.

Q. What makes you think that Homestead is going to

make this conveyance to allow the trail to cross your

easement?

A. I was at all the meetings -- about seven

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Homestead meetings, the OASAC meeting, the commissioners

meeting and that was always what they talked about.

Q. Okay. Did anything indicate to you that the

matter was becoming emanant?

A. Emanant? The emanance I saw in the newspaper

recently, in the Vail Daily.

MS. OPPENHEIMER: Your Honor, I'm going to

object to hearsay.

THE COURT: For the purposes of this hearing

I'll allow her to testify to that. I think it will go

to the weight. Go right ahead.

MR. PLOTT: Okay. Thank you.

BY MR. PLOTT:

Q. And if you turn to tab three in your book, is

that the article to which -- or what is tab three?

A. Yes, it is.

Q. Well, can you tell me what tab three is?

A. It is depicting the "L," the property in green

and in red it is showing the property that the County is

-- excuse me, that Eagle Valley Land Trust is asking

that the Homestead put into conservation easement for

the public to be able to utilize. And then the other

little kind of yellowish, that is (inaudible) open

space, which will go into open space to the public.

Q. We need to talk about damages that you may incur

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as a result of public access across your easement.

A. I'm sorry.

Q. We need to talk about damages that you might

incur because of the public access in your easement for

crossing in or going along it. What damages do you

believe that you are incurring or you may incur as a

result of the public access?

A. The main damage would be that I would have to, if

they have the County road or County easement go across,

is what I mentioned earlier, that if I have to go

contend with the County easement there, I will have to

go through a stack of papers before I can get my road.

And then the liability, there will be a great deal of

liability for the -- if the public is on my easement.

And it is 4,234 feet long and how is the Homestead --

they have offered no way to monitor, keep it clean or

make sure it is used correctly, nothing.

Q. You have attributed -- let me ask you this, who

is allowed on your easement right now?

A. Who is allowed on my easement right now?

Q. Yes.

A. Myself, my guests, anybody who is going to be

building for me on the easement and all Homestead

residents can walk it.

Q. Okay. And we've been talking about an easement

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an awful lot. If you'll turn to tab four in your

exhibit book.

A. I'm sorry, I didn't hear you.

Q. Will you turn to tab four in your exhibit book?

A. Yes.

Q. And do you know what tab four is?

A. This is our easement agreement.

Q. Okay.

MR. PLOTT: Your Honor, I move the admission

of tab -- Exhibit 4.

MS. OPPENHEIMER: No.

THE COURT: Exhibit 4, tab 4, whatever you

want to refer to it, is admitted.


BY MR. PLOTT:

Q. The next tab is tab five, would you please turn

to tab five?

A. Yes.

Q. Now, are you -- can you tell me what tab five is?

A. Came off the computer and it said -- do you want

me to read what it says?

Q. No. No.

A. Okay.

Q. Do you know what it is?

A. Yes.

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Q. What is it?

A. It is a newsletter and it is stating that --

let's see.

Q. I'm going to ask you not to read off it.

A. The memorandum, sorry.

Q. I'm going to ask you not to read off of it.

A. Okay.

Q. It's the Homestead Newsletter.

A. The memorandum is agreed to between Homestead.


THE COURT: That will be sustained. Her

answer will be stricken.

MS. OPPENHEIMER: Thank you.

MR. PLOTT: Your Honor, I'll move the

admission of tab five, Exhibit 5.

MS. OPPENHEIMER: Object. Again, it's

hearsay.

MR. PLOTT: Your Honor, this is an admission

by the parties from the Homestead itself.

THE COURT: Objection sustained. It is not

admitted at this time.

MR. PLOTT: Based only on hearsay, Your

Honor?

THE COURT: Yes.

MR. PLOTT: Okay.

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BY MR. PLOTT:

Q. And then you attributed some ill motives to

Homestead previously. You talked about rocks and trees

and I'd like you to turn to tab six. Do you know what

that is?

A. Yes.

Q. What is it?

A. Pictures I took.

Q. A picture of what?

A. The entrance to my easement.

Q. Okay. And you have marked on this picture?

A. Yes, I marked on it.

Q. Is this a fair and accurate depiction of your

easement?

A. Yes, it is.


of Exhibit 6.


MS. OPPENHEIMER: May I Voir Dire?


VOIR DIRE

BY MS. OPPENHEIMER:

Q. Ms. Allen, isn't it true that the photo is a

photo of property that is owned by Ryan and Trista

Sutter and not Homestead property?

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A. True.

MS. OPPENHEIMER: Thank you. I object to

it's admission, Your Honor. It's not Homestead

property.

THE COURT: That will be sustained.

MS. OPPENHEIMER: Thank you.

MR. PLOTT: In that case, Your Honor, I have

no further questions. Thank you.

THE COURT: Thank you. Cross-examination?

Ma'am, you can remain, please. Do you wish

to cross-examine?

MS. OPPENHEIMER: If I may have just a

moment, Your Honor? Thank you.


CROSS-EXAMINATION

BY MS. OPPENHEIMER:

Q. Ms. Allen, the document that is tab one isn't the

signed MOU, is it?

A. The Memorandum of Understanding -- and what are

you asking about it?

Q. It's not signed, is it?

A. No.

Q. And, in fact, you don't have any information if

this is even the final draft before it was signed, do

you?

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A. No, I do not.

Q. Would you turn to what's marked as 1B?

A. 1B?

Q. Yes, ma'am. It's a diagram or sorts.

A. Is that the map B?

Q. Yes, ma'am.

A. Okay.

Q. Are you there?

A. Yes, I am.

Q. Okay. Now, there are roads that you can see

above the green and to the right of the East Lake Creek

Ranch; is that correct?

A. Are you talking about the roads in (inaudible)

two?

Q. Yes, ma'am.

A. Yes.

Q. And, in fact, they all hook up and connect over

to a trail up at the top part in the green section

"Homestead Open Space," that is familiar and most know

as the "Water Tank Trail"?

A. Yes, I remember that.

Q. Okay.

MS. OPPENHEIMER: Okay. Thank you. Nothing

further.

THE COURT: Thank you. Redirect?

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MR. PLOTT: No, Your Honor.

THE COURT: Thank you, ma'am. You can step

down. Mr. Plott, you may call your next witness.

MR. PLOTT: At the risk of not going -- we

will rest at this time, Your Honor.

THE COURT: Thank you. Ms. Oppenheimer.

CLOSING ARGUMENT

BY MS. OPPENHEIMER:

Your Honor, I'd ask at this time the Court

deny the preliminary injunction. They've made no

finding. They made no showing of the requirements

according to Rathke. Rathke is very clear of what is

required. Rathke vs McFarland, I am sure the Court's

familiar with it, 648 P.2d 648. They have not shown

that there is any probability of success on the merits.

They have been unable to produce any showing of

irreparable harm. The only testimony of possible damage

is that she will have to do a lot more paperwork and

there might be liability and there might be trash.

The MOU that has been admitted in front of

this Court addresses the responsibilities of the County

and others for trash and discusses liability within it.

That is in there, so there has been no proof by her

that, in fact, there will be any irreparable damage.

There is nothing in front of this Court that shows that

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there is anything emanant. At this point, Your Honor, I

would argue that the Court should deny her motion for a

preliminary injunction because she has not met the

standard as required by Rathke.

THE COURT: Thank you. Argument, Mr. Plott.


CLOSING ARGUMENT

BY MR. PLOTT:

Of course, the Court must address the Rathke

factors. Is there a reasonable probability for success

on the merits? I don't think that any reading of the

easement can allow that there is a right for Homestead

to make a conveyance to Eagle County that may result in

a trail, as Mr. Archibeque surveyed, crossing the Allen

Easement. That, of course, is a legal question for the

Court, but if you look at the elements or the abilities

to further convey in the easement, only the Allen's have

that right, not Homestead.

As far as the danger of real, immediate and

irreparable injury, which may be prevented, Your Honor.

If the County has a coverable claim to cross the

easement via a conveyance from Homestead, which is what

we're talking about here, then the Allen's are going to

have to do exactly what they said to protect their

property rights. They are going to have to comply with

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extensive regulations. They are going to deal with

liability, which is specifically mentioned in the

easement agreement itself. And I actually need to

correct myself in the complaint. I did not quite read

that correctly. As it stands, the Homestead owners, if

they do suffer some loss, bear their own risk of loss.

The risk of loss for third parties is assigned to the

Allen's. If Homestead makes that conveyance and third

parties for whatever reason are able to injure

themselves or otherwise suffer harm, the Allen's are

required to indemnify Homestead. And that is simply not

fair for Homestead to unilaterally allocate that risk of

loss on the Allen's.

There is no plain and speedy and adequate

remedy at law here. The only relief possible would be

equitable relief if they do complete their conveyance.

None of it will be speedy, plain or adequate, and

particularly because you can't quantify the risk of --

you can't quantify the risk of loss that they are going

to face in the future if you do let the general public

on.

There is no disservice to the public

interest. And I don't think anyone has argued that

there would be. And quite honestly, the balance of the

equities here favor the injunction. Had Homestead

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approached the Allen's and brought them into this from

the beginning, I doubt that we would be here in court

today. The issues of insurance, maintenance and

controlling public access are probably resolvable in a

matter of days. But for Homesteads unilateral attempt

to convey rights in the easement to a third party, we

would not be here in court today. Had Homestead not

made that unilateral attempt, there would be no danger

to the Allen's property rights right now.

Further more, the injunction, if it issues,

will preserve the status quo and that is what we are

seeking here today, Your Honor, to preserve the status

quo. Do not let Homestead make this conveyance to Eagle

County, particularly when they have already surveyed a

trail across the Allen easement.

I would also ask that a minimal bond enter

because Homestead gains nothing and loses nothing if

they make the conveyance. Thank you.

THE COURT: Thank you. Ms. Oppenheimer,

rebuttal.

MS. OPPENHEIMER: Yes, Your Honor.

REBUTTAL

BY MS. OPPENHEIMER:

First of all, Counsel misstates; one, there

has been no proof of any attempt and Counsel is well

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aware that there is going to be no attempt because he

has received documents from the County, as well as the

Association that there is no intention to cross her

trail. And that the Memo of Understanding is being

changed because there is a letter from the County

stating that they are going down the Water Tank Trail.

That was provided to Counsel before this hearing, he is

aware there is no intent to cross that easement.

THE COURT: Okay. At this stage of the

proceedings, though, that has not yet been admitted.

MS. OPPENHEIMER: No, it has not yet, Your

Honor.

THE COURT: That is not for the Court to

consider.

MS. OPPENHEIMER: I understand. But he is

misstating the facts. There is nothing in front of this

Court suggesting that there is any attempt, and, in

fact, he knows otherwise. And he said in front of this

Court, "If they had made any attempt to contact Ms.

Allen," that's my point. We have contacted Ms. Allen.

When he sent us a letter, the day he filed this.

THE COURT: Again, there is no evidence of

that at this stage of the proceedings.

MS. OPPENHEIMER: Yes, sir. He also says,

in fact, that there's, again, that what's in front of

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2

3

4

5

6

7

8

9

10

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12

13

14

15

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34

this Court is that the trail itself, there is no other

way, even from looking at the documents, that they are

going to cost her funds. There is no proof of anything.

The memo that he introduced, that is in front of this

Court, that is part of the evidence, talks about

insurance over that trail. Whatever it may be, that's

in the Memo of Understanding, it's nonbinding. There

has been no evidence in front of this Court that there

is any attempt to do anything to further a trail across

her.

He says, "Ted Archibeque did something."

Not on behalf of Homestead, nothing in furtherance, and

also Ted testified he looked at multiple different

trails. Ted Archibeque testified that, in fact, there

is a way to get across that land without going across

her easement. There is no evidence in front of you

that, in fact, says that the Homestead is going to

proceed and that there is any evidence that anything is

emanant, which, in fact, it is just hearsay of a paper,

a newspaper, saying something is going to happen.

Nothing else in front of this Court to suggest that the

County -- or the County and Homestead are taking any

action, which they are not.

THE COURT: Okay. Thank you.

At this stage, the Rathke standards have not

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3

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5

6

7

8

9

10

11

12

13

14

15

16

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19

20

21

22

23

24

25

35

been met. There isn't any evidence that action is

eminent. There isn't any evidence other than

speculation of damages that would be incurred.

Therefore, the request for an injunction

will be denied.

Thank you. We will be in recess.

MS. OPPENHEIMER: Thank you, sir.

(Proceeding ended at 9:38 A.M.)

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2

3

4

5

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8

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11

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13

14

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36

REPORTER'S CERTIFICATE

The following is a correct and true

transcription of my stenotype notes, taken of an audio

recording, in my capacity as a Registered Professional

Reporter, dated May 10, 2012.

________________

Rosie Stahl, RPR

Eagle-Summit Reporting & Video

PO Box 464

Kremmling, CO 80459

970-468-9415

'

'69 [1] - 17:18

1

10 [7] - 7:19, 7:21,

7:23, 8:1, 8:12, 8:16,

36:6

10th [1] - 16:1

11-cv-1127 [1] - 1:2

12/16/11 [1] - 1:4

16 [2] - 1:11, 2:1

18 [1] - 20:17

1959 [1] - 17:7

1a [3] - 13:15, 15:7,

15:8

1b [6] - 13:15, 15:7,

15:8, 21:14, 28:2,

28:3

1c [2] - 13:15, 20:9

2

2 [1] - 4:25

2011 [2] - 1:11, 2:1

2011cv1127 [1] - 2:4

2012 [1] - 36:6

3

35s [2] - 15:3

3:09 [1] - 2:1

4

4 [3] - 24:10, 24:12

4,234 [1] - 23:15

464 [1] - 36:12

5

5 [1] - 25:15

50 [4] - 2:20, 5:18,

5:20, 5:22

6

6 [1] - 26:17

648 [2] - 29:14

8

80 [9] - 6:13, 12:6,

15:2, 15:3, 15:5,

15:6, 15:14, 15:17,

20:19

80459 [1] - 36:13

9

970-468-9415 [1] -

36:14

9:38 [1] - 35:8

A

abilities [1] - 30:16

able [4] - 2:24, 19:10,

22:22, 31:9

above-mentioned [1]

- 1:13

absolutely [1] - 19:16

access [10] - 13:2,

15:2, 17:20, 17:23,

19:2, 19:15, 23:1,

23:4, 23:7, 32:4

according [1] - 29:12

accurate [5] - 4:22,

4:23, 12:18, 16:12,

26:13

acres [4] - 15:2, 15:5,

15:6, 20:17

action [5] - 18:1,

18:11, 18:14, 34:23,

35:1

additional [1] - 5:6

address [1] - 30:9

addresses [1] - 29:21

adequate [2] - 31:14,

31:17

admission [9] - 4:24,

8:15, 13:15, 16:7,

24:9, 25:15, 25:18,

26:16, 27:3

admit [1] - 5:9

admitted [7] - 9:13,

13:18, 16:16, 24:13,

25:21, 29:20, 33:10

ago [2] - 5:15, 9:24

agreed [1] - 25:9

agreement [2] - 24:7,

31:3

ahead [3] - 3:17, 7:6,

22:11

Allen [35] - 1:6, 2:4,

2:8, 4:12, 4:18, 4:22,

5:13, 5:16, 6:4, 6:5,

6:11, 6:13, 6:16,

6:18, 8:7, 8:9, 10:15,

10:20, 12:5, 12:6,

14:5, 14:6, 14:15,

14:20, 14:25, 15:13,

15:17, 26:23, 27:17,

30:14, 32:15, 33:20

Allen's [7] - 30:17,

30:23, 31:8, 31:10,

31:13, 32:1, 32:9

allocate [1] - 31:12

allow [5] - 19:16,

20:22, 21:23, 22:10,

30:12

allowed [4] - 17:19,

17:22, 23:19, 23:20

allowing [1] - 19:24

amount [1] - 17:3

Answer [1] - 21:9

answer [3] - 19:5,

21:8, 25:12

anyway [1] - 20:1

appear [1] - 4:18

appearances [1] - 2:6

appreciate [1] - 9:16

approach [1] - 7:1

approached [1] - 32:1

appropriately [1] -

2:21

Archib [1] - 4:1

Archibeque [13] - 3:7,

3:8, 3:10, 3:19, 7:10,

7:25, 9:23, 10:22,

11:10, 14:2, 30:14,

34:11, 34:14

area [1] - 11:24

argue [2] - 18:16, 30:2

argued [1] - 31:23

Argument [3] - 29:7,

30:5, 30:7

article [1] - 22:15

assigned [1] - 31:7

assistance [1] - 11:4

Association [6] - 1:9,

2:5, 2:13, 2:14, 2:19,

33:3

assuming [1] - 9:1

assumptions [1] - 9:2

attempt [7] - 32:5,

32:8, 32:25, 33:1,

33:17, 33:19, 34:9

attorney [1] - 19:25

attributed [2] - 23:18,

26:2

audio [1] - 36:4

authorize [1] - 8:24

aware [3] - 18:11,

33:1, 33:8

awful [1] - 24:1

awkward [1] - 13:14

B

balance [1] - 31:24

Barbara [4] - 1:6, 2:8,

14:4, 14:15

Based [1] - 25:22

bear [1] - 31:6

became [1] - 17:10

becoming [1] - 22:4

begin [1] - 6:5

beginning [2] - 18:2,

32:2

behalf [4] - 2:12, 3:20,

14:16, 34:12

belief [1] - 20:21

believes [1] - 18:9

bench [1] - 3:1

Berford(ph [1] - 17:17

better [1] - 11:8

between [1] - 25:9

binder [3] - 4:14, 7:18,

13:14

blue [1] - 4:14

bond [1] - 32:16

book [3] - 22:14, 24:2,

24:4

books [1] - 2:24

bought [2] - 17:7,

21:11

boulders [2] - 18:4,

19:12

Box [1] - 36:12

box [1] - 12:5

boy,-e-q-u-e [1] - 4:1

briefly [1] - 17:5

bring [2] - 6:21, 18:1

brother [1] - 15:1

brought [1] - 32:1

build [1] - 15:4

building [1] - 23:23

Bus [1] - 13:7

business [1] - 4:3

C

Cameron [1] - 20:18

capacity [1] - 36:5

caretaker [1] - 15:4

Case [2] - 1:2, 2:4

case [3] - 14:22,

14:24, 27:7

caution [1] - 20:6

certain [1] - 17:3

Certificate [1] - 36:1

certified [1] - 5:4

changed [1] - 33:5

Charley[1] - 20:13

chose [1] - 18:14

claim [2] - 18:14,

30:21

claims [1] - 16:13

clean [1] - 23:16

clear [2] - 15:5, 29:12

close [1] - 12:12

Closing[2] - 29:7,

30:7

Co[1] - 36:13

Colorado [1] - 1:1

1

colored [3] - 11:12,

15:11

coming [2] - 6:7, 9:17

commissioners [1] -

22:1

community [1] - 10:10

comparison [1] - 5:19

complaint [1] - 31:4

complete [2] - 1:12,

31:16

comply [1] - 30:25

composed [1] - 8:3

computer [1] - 24:20

concerning [1] - 2:25

confirmed [1] - 10:8

connect [1] - 28:17

connection [1] - 9:12

conservation [1] -

22:21

consider [2] - 6:6,

33:14

contact [2] - 9:3,

33:19

contacted [1] - 33:20

contemplating [1] -

9:7

contend [1] - 23:11

continue [1] - 18:24

controlling [1] - 32:4

convey [2] - 30:17,

32:6

conveyance [7] -

21:23, 30:13, 30:22,

31:8, 31:16, 32:13,

32:18

copy [1] - 16:3

corner [1] - 7:22

correct [10] - 8:25,

9:9, 9:10, 10:8,

10:14, 10:16, 10:17,

28:12, 31:4, 36:3

Correct [3] - 9:8, 10:4,

10:9

correctly [2] - 23:17,

31:5

cost [1] - 34:3

Counsel [6] - 2:5,

11:2, 11:19, 32:24,

32:25, 33:7

counsel [2] - 3:3, 20:4

County [21] - 1:1, 4:7,

4:9, 8:23, 10:2, 12:3,

17:16, 19:20, 19:21,

22:19, 23:9, 23:11,

29:21, 30:13, 30:21,

32:14, 33:2, 33:5,

34:22

course [2] - 30:9,

30:15

court [2] - 32:2, 32:7

Court [76] - 1:1, 1:4,

1:12, 2:3, 2:4, 2:9,

2:15, 3:2, 3:5, 3:8,

3:12, 3:16, 5:1, 5:8,

5:12, 5:25, 7:3, 7:13,

7:18, 7:20, 8:17,

8:19, 9:13, 9:19,

10:23, 11:4, 12:19,

12:22, 13:16, 13:18,

13:21, 13:23, 14:1,

14:6, 14:12, 16:8,

16:15, 16:22, 18:11,

18:12, 18:19, 18:22,

19:3, 21:4, 22:9,

24:12, 25:11, 25:20,

25:24, 26:18, 26:20,

27:5, 27:9, 27:14,

28:25, 29:2, 29:6,

29:9, 29:21, 29:25,

30:2, 30:5, 30:9,

30:16, 32:19, 33:9,

33:13, 33:17, 33:19,

33:22, 34:1, 34:5,

34:8, 34:21, 34:24

Court's [1] - 29:13

courtroom [1] - 5:20

coverable [1] - 30:21

Creek [6] - 12:1, 13:11,

15:18, 17:12, 20:23,

28:11

cross [11] - 6:18, 8:8,

9:19, 20:22, 21:19,

21:23, 27:11, 30:21,

33:3, 33:8

Cross [3] - 9:21, 27:9,

27:15

Cross-examination [3]

- 9:21, 27:9, 27:15

cross-examine [2] -

9:19, 27:11

crosses [1] - 10:15

crossing [3] - 10:20,

23:5, 30:14

cul [1] - 6:8

cul-de-sac [1] - 6:8

D

dad [1] - 17:6

Daily [1] - 22:6

damage [3] - 23:8,

29:17, 29:24

damages [4] - 22:25,

23:3, 23:5, 35:3

danger [2] - 30:19,

32:8

dated [1] - 36:6

days [1] - 32:5

de [1] - 6:8

deal [2] - 23:13, 31:1

Debra [2] - 1:18, 2:12

December [2] - 1:11,

2:1

Defendant [2] - 1:8,

1:17

denied [1] - 35:5

deny [2] - 29:10, 30:2

depict [3] - 13:5, 13:9,

21:15

depicted [1] - 8:11

depicting [1] - 22:18

depiction [3] - 4:22,

12:18, 26:13

depictions [1] - 16:19

depicts [1] - 20:15

describe [1] - 13:4

description [2] - 8:2,

9:4

diagram [1] - 28:4

different [3] - 10:6,

20:4, 34:13

difficulty [1] - 19:18

Dire [4] - 8:18, 8:20,

26:19, 26:21

Direct [2] - 3:22, 14:18

direct [1] - 9:3

discusses [1] - 29:22

disservice [1] - 31:22

District [2] - 1:1, 1:12

document [10] - 5:4,

7:23, 7:25, 9:12,

15:21, 16:10, 16:11,

16:13, 27:17

documents [3] -

11:12, 33:2, 34:2

done [4] - 18:1, 18:15,

18:25, 19:6

doubt [1] - 32:2

down [6] - 9:17, 14:12,

18:9, 18:17, 29:3,

33:6

draft [1] - 27:24

drive [1] - 19:10

duly [2] - 3:21, 14:17

E

Eagle [10] - 1:1, 4:6,

4:9, 8:23, 13:6,

17:15, 22:20, 30:13,

32:13, 36:11

Eagle-summit [1] -

36:11

Easement [13] - 4:12,

4:18, 4:22, 5:13,

5:17, 6:4, 6:5, 6:16,

6:19, 10:15, 10:20,

14:25, 30:15

easement [34] - 9:24,

18:3, 18:9, 18:18,

19:18, 19:24, 20:24,

21:12, 21:15, 21:17,

21:18, 21:19, 21:24,

22:21, 23:1, 23:4,

23:9, 23:11, 23:14,

23:19, 23:20, 23:23,

23:25, 24:7, 26:10,

26:14, 30:12, 30:17,

30:22, 31:3, 32:6,

32:15, 33:8, 34:16

easier [1] - 7:15

East [7] - 12:1, 13:10,

15:18, 17:12, 17:20,

20:22, 28:11

Eco [1] - 13:7

Edwards [1] - 20:18

elements [1] - 30:16

emanance [1] - 22:5

emanant [3] - 22:4,

30:1, 34:19

Emanant [1] - 22:5

eminent [1] - 35:2

ended [1] - 35:8

enter [1] - 32:16

entire [1] - 16:24

entirety [2] - 16:2,

16:7

entrance [1] - 26:10

equitable [1] - 31:16

equities [1] - 31:25

Erkson(ph [1] - 2:13

Esq [2] - 1:16, 1:18

evidence [7] - 33:22,

34:5, 34:8, 34:16,

34:18, 35:1, 35:2

exactly [1] - 30:24

examination [3] -

9:21, 27:9, 27:15

Examination [3] -

3:22, 10:25, 14:18

examine [2] - 9:19,

27:11

examined [2] - 3:21,

14:17

excuse [2] - 19:17,

22:20

excused [1] - 13:24

Exhibit [19] - 11:13,

11:16, 12:11, 12:13,

13:3, 13:4, 15:12,

15:13, 20:9, 20:12,

20:13, 21:14, 21:20,

24:10, 24:12, 25:15,

26:17

exhibit [5] - 2:24,

7:11, 8:3, 24:2, 24:4

Exhibits [1] - 15:7

exhibits [2] - 2:25,

11:5

existence [1] - 16:13

explain [1] - 17:5

explaining [1] - 18:24

extensive [1] - 31:1

extreme [1] - 19:18

F

face [1] - 31:20

fact [8] - 27:23, 28:17,

29:24, 33:18, 33:25,

34:14, 34:17, 34:19

factors [1] - 30:10

facts [1] - 33:16

fair [4] - 4:21, 12:18,

26:13, 31:12

familiar [16] - 10:10,

10:12, 11:18, 11:21,

15:20, 15:23, 16:19,

16:22, 16:23, 17:6,

17:12, 21:15, 21:17,

21:18, 28:19, 29:14

Family[1] - 1:6

far [2] - 12:25, 30:19

father [1] - 17:9

favor [1] - 31:25

feet [4] - 5:18, 5:21,

5:22, 23:15

filed [1] - 33:21

filing [1] - 11:23

final [2] - 10:7, 27:24

fine [2] - 3:2, 6:1

First[1] - 32:24

first [6] - 3:21, 11:13,

14:17, 15:25, 17:17,

18:13

five [4] - 24:16, 24:17,

24:19, 25:15

follow [1] - 7:17

following [2] - 6:3,

36:3

follows [2] - 3:21,

14:17

forest [1] - 21:10

Forest[4] - 10:19,

11:20, 13:7, 20:23

forward [2] - 3:9, 14:7

four [3] - 24:1, 24:4,

24:6

front [10] - 4:15,

29:20, 29:25, 33:16,

33:18, 33:25, 34:4,

34:8, 34:16, 34:21

funds [1] - 34:3

furtherance [1] -

34:12

future [1] - 31:20

2

G

gains [1] - 32:17

general [1] - 31:20

Government [1] - 8:23

grader [1] - 18:17

granting [1] - 9:7

graphical [2] - 11:3,

11:8

graphically [1] - 8:13

great [1] - 23:13

greater [1] - 5:20

green [3] - 22:18,

28:11, 28:18

ground [1] - 8:6

guess [2] - 9:25, 11:17

guessing [2] - 5:22,

5:24

guests [1] - 23:22

H

hand [4] - 3:13, 5:14,

7:22, 14:9

handled [1] - 18:13

handwritings [1] - 5:6

harm [2] - 29:17,

31:10

hear [2] - 12:20, 24:3

Hearing [1] - 1:4

hearing [7] - 1:11,

2:18, 5:9, 9:14,

16:16, 22:9, 33:7

hearsay [4] - 22:8,

25:17, 25:22, 34:19

hired [1] - 8:22

Homestead [55] - 1:9,

2:5, 2:12, 2:19, 3:3,

6:8, 8:24, 9:2, 9:6,

9:12, 10:10, 10:18,

11:3, 11:21, 11:23,

11:24, 13:2, 13:10,

15:25, 16:4, 17:9,

17:10, 18:1, 18:24,

19:6, 19:14, 19:23,

20:16, 20:21, 21:22,

22:1, 22:21, 23:15,

23:23, 25:8, 25:9,

25:19, 26:3, 26:25,

27:3, 28:19, 30:12,

30:18, 30:22, 31:5,

31:8, 31:11, 31:12,

31:25, 32:7, 32:13,

32:17, 34:12, 34:17,

34:22

Homestead's [1] -

11:20

Homesteads [1] - 32:5

honestly [1] - 31:24

Honor [45] - 2:11,

2:23, 3:6, 3:18, 4:24,

5:2, 5:3, 5:10, 7:1,

7:11, 7:17, 8:15,

9:11, 9:15, 9:20,

10:24, 13:13, 13:20,

13:25, 14:4, 14:14,

16:6, 16:9, 16:17,

18:7, 19:1, 22:7,

24:9, 24:14, 25:14,

25:18, 25:23, 26:16,

27:3, 27:7, 27:13,

29:1, 29:5, 29:9,

30:1, 30:6, 30:20,

32:12, 32:21, 33:12

Honorable [1] - 1:11

hook [1] - 28:17

house [1] - 15:4

I

idea [1] - 16:11

identification [1] - 5:5

identify [1] - 7:14

identifying [1] - 8:6

ill [1] - 26:2

immediate [1] - 30:19

impair [1] - 19:15

Improvement [1] -

4:21

Improvements [1] -

4:17

inaudible [2] - 22:23,

28:13

Inc [1] - 1:9

incur [3] - 22:25, 23:4,

23:6

incurred [1] - 35:3

incurring [1] - 23:6

indemnify [1] - 31:11

indicate [2] - 8:24,

22:3

indicated [2] - 2:17,

12:16

information [1] -

27:23

injunction [6] - 17:25,

29:10, 30:3, 31:25,

32:10, 35:4

injure [1] - 31:9

injury [1] - 30:20

insurance [2] - 32:3,

34:6

intends [1] - 20:22

intent [1] - 33:8

intention [1] - 33:3

interest [2] - 14:25,

31:23

introduced [1] - 34:4

irreparable [3] - 29:17,

29:24, 30:20

issues [2] - 32:3,

32:10

itself [4] - 13:9, 25:19,

31:3, 34:1

J

Jc[1] - 1:16

join [1] - 18:10

Judge[1] - 1:12

K

keep [3] - 18:25, 19:6,

23:16

kind [1] - 22:23

kinds [1] - 5:3

knows [1] - 33:18

Kremmling [1] - 36:13

L

labeled [2] - 11:13,

13:8

Lake[7] - 12:1, 13:10,

15:18, 17:12, 17:20,

20:22, 28:11

Land[1] - 22:20

land [8] - 4:3, 4:4,

10:20, 11:21, 12:18,

12:21, 16:23, 34:15

last [3] - 3:24, 5:12,

9:23

law [1] - 31:15

lawsuit [1] - 18:10

lay [2] - 12:18, 12:21

leave [1] - 14:8

left [1] - 2:14

legal [3] - 8:2, 9:3,

30:15

less [1] - 5:20

letter [2] - 33:5, 33:21

lettered [1] - 11:6

liability [5] - 23:13,

23:14, 29:19, 29:22,

31:2

line [1] - 20:19

Lion[1] - 16:22

lived [1] - 17:7

living [1] - 4:2

locally [1] - 12:2

look [2] - 7:5, 30:16

looked [1] - 34:13

looking [1] - 34:2

looks [1] - 4:23

loses [1] - 32:17

loss [5] - 31:6, 31:7,

31:13, 31:19

Lp[1] - 1:6

M

Ma'am [2] - 14:8,

27:10

ma'am [4] - 28:4, 28:6,

28:15, 29:2

main [2] - 13:6, 23:8

maintenance [1] -

32:3

manager [1] - 2:13

map [5] - 11:12, 11:13,

20:10, 20:15, 28:5

maps [3] - 13:15,

15:11, 16:25

March [1] - 16:1

mark [2] - 7:17, 7:18

marked [9] - 7:23,

7:25, 11:7, 11:24,

12:5, 16:11, 26:11,

26:12, 28:2

masticator [2] - 18:5,

19:10

matter [2] - 22:4, 32:5

Mcfarland [1] - 29:13

Meaning [2] - 10:5,

10:6

meeting [4] - 15:25,

16:14, 22:1, 22:2

meetings [2] - 21:25,

22:1

Memo [2] - 33:4, 34:7

memo [1] - 34:4

memorandum [4] -

16:3, 25:5, 25:9

Memorandum [6] -

11:5, 11:7, 15:19,

16:20, 20:10, 27:19

memory [1] - 5:15

mentioned [4] - 1:13,

19:12, 23:10, 31:2

merits [2] - 29:15,

30:11

met [2] - 30:3, 35:1

might [4] - 20:7, 23:3,

29:19

minimal [1] - 32:16

minutes [1] - 2:20

misstates [1] - 32:24

misstating [1] - 33:16

moment [2] - 21:4,

27:13

monitor [1] - 23:16

month [2] - 5:15, 9:24

Moorhead [1] - 1:11

morning [12] - 2:3,

2:9, 2:10, 2:11, 2:15,

2:20, 3:10, 3:11,

3:24, 9:17, 14:20,

14:21

most [1] - 28:19

motion [1] - 30:2

motives [1] - 26:2

Mou [4] - 15:22,

16:12, 27:18, 29:20

move [7] - 4:24, 8:15,

13:15, 16:6, 24:9,

25:14, 26:16

multiple [2] - 10:5,

34:13

must [1] - 30:9

N

name [1] - 3:25

National [1] - 20:23

need [3] - 22:25, 23:3,

31:3

needed [1] - 2:18

never [1] - 9:6

newsletter [1] - 25:2

Newsletter [1] - 25:8

newspaper [2] - 22:5,

34:20

next [4] - 12:12, 14:3,

24:16, 29:3

nonbinding [1] - 34:7

None [1] - 31:17

north/south [1] -

20:19

notations [2] - 5:3, 5:6

notes [2] - 16:10, 36:4

Nothing [2] - 28:23,

34:21

nothing [6] - 23:17,

29:25, 32:17, 33:16,

34:12

nothing's [2] - 10:7

notice [1] - 2:18

number [2] - 4:15,

11:11

O

Oasac[1] - 22:1

object [11] - 5:2, 5:7,

5:23, 9:11, 18:8,

18:15, 20:25, 21:3,

22:8, 25:10, 27:2

Object [1] - 25:16

Objection [4] - 19:1,

19:3, 21:5, 25:20

objection [7] - 5:1,

8:17, 13:16, 16:8,

18:19, 18:22, 26:18

obviously [1] - 2:19

occurred [1] - 2:20

offered [1] - 23:16

one [14] - 3:1, 3:4,

7:22, 11:11, 11:14,

3

15:3, 15:9, 15:20,

16:2, 16:7, 27:17,

32:24

One [1] - 21:4

Open[3] - 11:24,

20:17, 28:19

open [3] - 4:16, 22:23,

22:24

opinion [1] - 12:17

Oppenheimer [43] -

1:18, 2:11, 2:12, 5:2,

5:23, 7:6, 7:14, 8:18,

8:21, 9:11, 9:20,

9:22, 10:22, 13:17,

13:22, 16:9, 18:7,

18:13, 18:21, 19:1,

20:25, 21:3, 22:7,

24:11, 25:10, 25:13,

25:16, 26:19, 26:22,

27:2, 27:6, 27:12,

27:16, 28:23, 29:6,

29:8, 32:19, 32:21,

32:23, 33:11, 33:15,

33:24, 35:7

options [1] - 10:5

order [2] - 2:17, 18:5

originates [1] - 6:8

origination [1] - 6:6

otherwise [2] - 31:10,

33:18

overruled [3] - 18:22,

19:3, 21:5

own [1] - 31:6

owned [4] - 17:9,

17:15, 17:17, 26:24

Owners[4] - 1:9, 2:5,

2:12, 2:19

owners [1] - 31:5

P

P.2d [1] - 29:14

page [4] - 7:22, 8:5,

8:11, 12:12

pages [1] - 8:3

paper [1] - 34:19

papers [2] - 19:20,

23:12

paperwork [1] - 29:18

Parcel [1] - 13:7

parcel [3] - 12:12,

17:13, 21:19

parking [1] - 20:20

part [3] - 6:3, 28:18,

34:5

particularly [2] -

31:18, 32:14

parties [3] - 25:19,

31:7, 31:9

party [1] - 32:6

pass [1] - 2:25

paths [2] - 10:2, 10:6

Paths [1] - 10:3

Petitioner [2] - 3:20,

14:16

photo [2] - 26:23,

26:24

picked [1] - 16:14

picture [2] - 26:9,

26:11

Pictures [1] - 26:8

piece [1] - 8:6

place [1] - 1:11

plain [2] - 31:14, 31:17

Plaintiff [4] - 1:16,

2:10, 14:22, 14:24

Plaintiff's [7] - 3:6,

4:25, 7:19, 7:23, 8:1,

8:12, 8:16

Plaintiffs [2] - 1:6, 2:7

planned [1] - 8:25

planted [1] - 18:3

Plat [2] - 4:17, 4:21

plat [1] - 4:19

Plott [59] - 1:16, 2:7,

2:21, 2:23, 3:3, 3:6,

3:18, 3:23, 4:24,

5:10, 5:11, 6:1, 6:2,

7:1, 7:4, 7:8, 7:9,

7:16, 7:21, 7:24,

8:15, 9:15, 10:24,

11:1, 12:21, 12:24,

13:13, 13:19, 13:25,

14:3, 14:4, 14:13,

14:14, 14:19, 16:6,

16:17, 16:18, 18:23,

19:4, 21:7, 22:12,

22:13, 24:9, 24:14,

24:15, 25:14, 25:18,

25:22, 25:25, 26:1,

26:16, 27:7, 29:1,

29:3, 29:4, 30:5,

30:6, 30:8

plural [1] - 10:3

Pm [1] - 2:1

Po [1] - 36:12

point [5] - 6:6, 10:15,

18:8, 30:1, 33:20

portion [2] - 8:7, 12:13

possible [2] - 29:17,

31:15

potential [1] - 6:18

preapproval [1] -

18:18

preliminary [2] -

29:10, 30:3

premarked [1] - 11:4

present [1] - 19:14

presented [1] - 16:1

preserve [2] - 32:11,

32:12

Preserve [1] - 13:6

prevented [1] - 30:20

previously [2] - 17:22,

26:3

privileged [1] - 20:7

probability [2] - 29:15,

30:10

proceed [3] - 2:22,

14:13, 34:18

Proceeding [1] - 35:8

proceedings [3] -

1:13, 33:10, 33:23

produce [1] - 29:16

Professional [1] - 36:5

professional [1] - 4:4

proof [3] - 29:23,

32:25, 34:3

properties [1] - 16:20

property [12] - 6:11,

15:2, 18:6, 18:25,

19:7, 22:18, 22:19,

26:24, 26:25, 27:4,

30:25, 32:9

proposed [1] - 20:19

protect [1] - 30:24

provided [1] - 33:7

public [14] - 6:7,

17:19, 17:22, 19:24,

20:22, 22:22, 22:24,

23:1, 23:4, 23:7,

23:14, 31:20, 31:22,

32:4

purchase [1] - 17:16

purchased [1] - 12:3

purpose [2] - 9:14,

21:11

purposely [1] - 18:10

purposes [4] - 5:8,

5:19, 16:15, 22:9

put [3] - 7:21, 19:17,

22:21

Py [1] - 7:21

Q

quantify [2] - 31:18,

31:19

questions [2] - 9:18,

27:8

quite [2] - 31:4, 31:24

quo [2] - 32:11, 32:13

R

raise [2] - 3:12, 14:8

Ranch[6] - 12:1,

13:11, 15:18, 17:12,

20:23, 28:12

ranch [2] - 17:7, 17:8

Rathke[6] - 29:12,

29:13, 30:4, 30:9,

34:25

reach [2] - 2:25, 18:6

reaching [2] - 18:25,

19:7

read [4] - 24:21, 25:4,

25:6, 31:4

reading [1] - 30:11

real [1] - 30:19

reason [1] - 31:9

reasonable [1] - 30:10

reasonably [1] - 12:17

rebuttal [1] - 32:20

Rebuttal[1] - 32:22

received [2] - 16:3,

33:2

recently [2] - 12:3,

22:6

recess [1] - 35:6

record [2] - 2:6, 3:25

recording [1] - 36:5

recross [1] - 13:21

red [1] - 22:19

Redirect[3] - 10:23,

10:25, 28:25

refer [4] - 7:10, 11:6,

12:2, 24:13

referencing [1] - 7:15

referred [1] - 15:6

reflects [1] - 15:13

refused [1] - 18:4

Registered[1] - 36:5

regulations [2] -

19:20, 31:1

release [1] - 20:7

relevancy [1] - 18:20

relevant [1] - 9:12

relief [2] - 31:15,

31:16

relitigating [1] - 18:16

remain [1] - 27:10

remedy [1] - 31:15

remember [1] - 28:21

Reporter[1] - 36:6

Reporter's [1] - 36:1

Reporting[1] - 36:11

representation [2] -

11:3, 11:8

represents [1] - 11:16

request [3] - 2:16,

35:4

required [4] - 18:18,

29:13, 30:4, 31:11

requirements [1] -

29:11

residents [1] - 23:24

resolvable [1] - 32:4

responsibilities [1] -

29:21

rest [1] - 29:5

restraining [1] - 2:17

result [3] - 23:1, 23:7,

30:13

return [1] - 7:11

right-hand [1] - 7:22

right-of-way [1] - 6:7

rights [3] - 30:25,

32:6, 32:9

risk [6] - 29:4, 31:6,

31:7, 31:12, 31:18,

31:19

River[1] - 13:6

road [5] - 19:16,

19:19, 19:22, 23:9,

23:12

roads [2] - 28:10,

28:13

rocks [1] - 26:3

Rosie[1] - 36:10

Rpr[1] - 36:10

run [2] - 18:5, 18:17

Ryan[1] - 26:24

S

sac [1] - 6:8

saw [1] - 22:5

scale [3] - 12:9, 12:15,

12:16

Scutter [1] - 17:18

seated [2] - 2:3, 3:16

second [2] - 8:5, 8:11

section [2] - 12:12,

28:18

see [4] - 2:21, 6:24,

25:3, 28:10

seeking [3] - 17:25,

19:2, 32:12

sell [1] - 15:3

sent [1] - 33:21

serves [1] - 5:15

Service [3] - 10:20,

11:20, 13:7

set [1] - 2:18

seven [1] - 21:25

showing [4] - 20:16,

22:19, 29:11, 29:16

shown [2] - 21:20,

29:14

shows [2] - 13:12,

29:25

side [2] - 2:20, 11:14

sidewalks [3] - 10:18,

11:20, 13:10

signed [4] - 16:12,

27:18, 27:21, 27:24

4

simply [1] - 31:11

sit [1] - 14:12

site [1] - 10:6

six [3] - 5:15, 9:24,

26:4

six-weeks [1] - 9:24

sold [1] - 17:18

somewhat [1] - 13:14

sorry [8] - 12:19, 20:3,

20:8, 21:6, 21:16,

23:2, 24:3, 25:5

sorts [1] - 28:4

south [1] - 15:18

space [2] - 22:24

Space [3] - 11:24,

20:17, 28:19

specifically [1] - 31:2

speculation [3] - 21:1,

21:5, 35:3

speedy [2] - 31:14,

31:17

spell [1] - 3:24

stack [2] - 19:19,

23:12

stage [3] - 33:9, 33:23,

34:25

Stahl [1] - 36:10

stand [3] - 3:1, 3:9,

14:7

standard [1] - 30:4

standards [1] - 34:25

stands [1] - 31:5

start [3] - 18:2, 18:8,

18:16

States [1] - 10:19

stating [2] - 25:2, 33:6

status [2] - 32:11,

32:12

stenotype [1] - 36:4

step [4] - 3:9, 6:4,

14:7, 29:2

stipulation [1] - 2:25

stop [2] - 19:9, 20:2

Stop [1] - 13:7

Street [1] - 20:18

stricken [1] - 25:12

Subdivision [2] - 6:9,

13:10

subsequent [2] - 6:15,

6:17

success [2] - 29:15,

30:10

suffer [2] - 31:6, 31:10

suggest [1] - 34:21

suggesting [1] - 33:17

suggestion [1] - 21:11

summit [1] - 36:11

Super [1] - 4:2

suppose [1] - 11:23

Survey [2] - 4:17, 4:21

survey [5] - 4:6, 4:11,

6:3, 6:16, 8:22

surveyed [6] - 6:15,

6:17, 8:8, 19:17,

30:14, 32:14

surveying [3] - 4:3,

10:2, 13:1

surveyor [1] - 4:4

surveys [1] - 6:21

sustained [4] - 5:25,

25:11, 25:20, 27:5

Sutter [1] - 26:25

swear [1] - 14:11

sworn [4] - 3:14, 3:21,

14:10, 14:17

T

tab [23] - 4:15, 11:10,

11:11, 11:14, 15:9,

15:20, 16:2, 16:7,

22:14, 22:15, 22:17,

24:1, 24:4, 24:6,

24:10, 24:12, 24:16,

24:17, 24:19, 25:15,

26:4, 27:17

talks [1] - 34:5

Tank[3] - 10:14, 28:20,

33:6

Ted[5] - 3:7, 3:19,

34:11, 34:13, 34:14

temporary [1] - 2:17

terminates [2] - 6:10,

6:11

testified [5] - 3:21,

5:5, 14:17, 34:13,

34:14

testify [1] - 22:10

testimony [1] - 29:17

th [1] - 16:2

thee [1] - 5:3

themselves [1] - 31:10

Therefore[1] - 35:4

They've [1] - 29:10

third [3] - 31:7, 31:8,

32:6

Thomas[1] - 1:11

three [3] - 22:14,

22:15, 22:17

today [6] - 6:22, 7:5,

17:25, 32:3, 32:7,

32:12

todays [1] - 5:8

took [2] - 1:11, 26:8

top [1] - 28:18

track [1] - 7:15

tract [2] - 8:7, 8:9

Tracy[1] - 2:13

Trail[3] - 10:14, 28:20,

33:6

trail [21] - 8:8, 9:6,

10:12, 10:19, 13:1,

13:5, 13:6, 13:9,

18:9, 19:17, 19:21,

20:16, 21:19, 21:23,

28:18, 30:14, 32:15,

33:4, 34:1, 34:6,

34:9

trails [3] - 6:15, 6:17,

34:14

Trails[1] - 13:2

transcript [3] - 1:11,

1:12

transcription [1] -

36:4

trash [2] - 29:19,

29:22

traverse [1] - 11:19

trees [3] - 18:3, 19:12,

26:3

Trista[1] - 26:24

Tro[1] - 18:14

True[1] - 27:1

true [3] - 17:11, 26:23,

36:3

Trust[1] - 22:20

trying [2] - 18:16,

19:15

turn [14] - 4:14, 4:15,

11:10, 12:11, 13:2,

15:9, 20:9, 21:14,

22:14, 24:1, 24:4,

24:16, 26:4, 28:2

two [6] - 4:15, 8:3,

15:3, 17:8, 28:14

U

unable [1] - 29:16

unilateral [2] - 32:5,

32:8

unilaterally [1] - 31:12

United [1] - 10:19

unsigned [1] - 16:10

up [7] - 4:16, 12:12,

15:3, 16:11, 16:14,

28:17, 28:18

Upper [4] - 6:13, 12:6,

15:13, 15:17

upper [1] - 7:22

Usfs [1] - 21:19

utilities [1] - 18:4

utilize [1] - 22:22

V

Vail [1] - 22:6

Valley [1] - 22:20

versus [1] - 2:4

5

via [2] - 11:19, 30:22

Video [1] - 36:11

Village [1] - 20:18

Voir [4] - 8:18, 8:20,

26:19, 26:21

vs [1] - 29:13

W

walk [1] - 23:24

walking [1] - 10:6

water [1] - 10:12

Water [3] - 10:14,

28:20, 33:6

watertank [1] - 10:19

Webster(ph [1] - 17:18

weeks [2] - 5:15, 9:24

weight [1] - 22:11

Wesley [1] - 1:6

wide [1] - 5:16

width [1] - 5:20

wish [2] - 9:19, 27:10

witness [11] - 3:1, 3:9,

3:20, 7:2, 7:12, 9:18,

13:23, 14:3, 14:7,

14:16, 29:3

Witness [8] - 3:11,

3:14, 3:15, 12:23,

14:10, 14:11, 21:2,

21:6

Y

year [2] - 4:11, 6:16

years [1] - 17:8

yellowish [1] - 22:23

COURT OF APPEALS STATE OF COLORADO 101 West Colfax Avenue Suite 800 Denver, CO 80202 DISTRICT COURT, EAGLE COUNTY, COLORADO Honorable R. Thomas Moorhead Case No. 2011CV1127 2012CA572 Plaintiff-Appellant: BARBARA ALLEN & WESLEY ALLEN FAMILY LP Defendant-Appellant: THE HOMESTEAD OWNERS ASSOCIATION INC

CLERK’S CERTIFICATE

I hereby certify the foregoing to be the electronic filings, as lodged with LexisNexis File & Serve, of the original documents of the record and files of the Clerk of the Combined Court of Eagle County, including the material pleadings, the judgment to be reviewed, the motions and rulings thereon, together with the designation of the appellant as to the matters to be included in the record in the above-entitled cause.

Dated June 19,, 2012 Eagle Combined Courts Jackie Cooper, Clerk of the Court by

Judicial Assistant Copy to:

Court Appeals, 101 West Colfax Ave, Suite 800, Denver, CO 80202

COURT USE ONLY

EFILED Document CO Eagle County District Court 5th JD Filing Date: Jun 19 2012 8:13AM MDT Filing ID: 44882552 Review Clerk: Patty Seifers

Spoolfile Name: WRKREGACTPQPADEV00MH191843B199PLS000004 I N T E G R A T E D C O L O R A D O O N L I N E N E T W O R K (I C O N) 6/19/12 Status: CLSD District Court, Eagle County Case #: 2011 CV 001127 Div/Room: 3 Type: Injunctive Relief ALLEN, BARBARA et al VS THE HOMESTEAD OWNERS ASSOCIATION INC DV STATUS: Case File Date: 12/08/2011 Case Close Date: 2/21/2012 Appealed: Y Confidential Intermediary.............: Bar # Name Judicial Off...: 022445 ROBERT THOMAS MOORHEAD Alt Jud Officer: 000000 Description Stat Date Time Rm/D Trial..........: 0:00 Next Schd Event: 0:00 Last Schd Event: Review VACT 2/15/2012 5:00 P Last Event.....: Filing Other n/a 6/11/2012 Attorney(s)....: Y + Judgements............:N Motions Filed.........:Y Amount Prayed for.....: .00 Jury Fee Paid.........:N ----- PARTIES ----- PARTY ROL STS NAME ATTORNEY ROL DEF 1 THE HOMESTEAD OWNERS ASSOCIA SHORT, WILLIAM HONDLOW et a PRV PTF 1 ALLEN, BARBARA PLOTT, JAMES CHRISTIAN PRV PTF 2 WESLEY ALLEN FAMILY LP PLOTT, JAMES CHRISTIAN PRV FILE DATE EVENT DESCRIPTION 12/08/2011 Complaint Event ID: 000001 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP COMPLAINT 12/08/2011 Motion Event ID: 000002 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP

EFILED Document CO Eagle County District Court 5th JD Filing Date: Jun 19 2012 8:13AM MDT Filing ID: 44882552 Review Clerk: Patty Seifers

MOTION FOR TEMPORARY RESTRAINING ORDER 12/08/2011 Civil Case Cover Sheet Event ID: 000003 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP CIVIL CASE COVER SHEET 12/08/2011 Proposed Order E-file use only Event ID: 000004 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP ORDER RE: MOTION FOR TEMPORARY RESTRAINING ORDER 12/08/2011 Order Event ID: 000005 E-Filed: Y ORDER RE RULE 121 DUTY TO CONFER

FILE DATE EVENT DESCRIPTION 12/08/2011 Order Event ID: 000006 E-Filed: Y DELAY REDUCTION ORDER 12/08/2011 Notice of Hearing Event ID: 000007 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP NOTICE OF C.R.C.P. 65 HEARING 12/08/2011 Order Event ID: 000008 E-Filed: Y NO ACTION TAKEN AT THIS TIME (MOTION FOR TEMPORARY RESTRAINING ORDER) 12/15/2011 Return of Service Event ID: 000009 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP RETURN OF SERVICE 12/16/2011 Minute Order (print) Event ID: 000010 E-Filed: N 8:59 FTR/9:05 AM/HEARING ON TRO J.C. PLOTT, ATTY FOR PLAINTIFF, BARBARA ALLEN, PLAINTIFF DEBRA OPPENHEIMER, ATTY FOR DEFENDANT, REPRESENTATIVE OF HOMESTEAD OWNS ASSOC TED ARCHIBEQUE IS SWORN AND TESTIFIES. BARBARA ALLEN IS SWORN AND TESTIFIES. MS. OPPENHEIMER MOVES COURT TO DENY TRO. MR. PLOTT STATES ARGUMENT. MS. OPPENHEIMER STATES REPLY. COUNT FINDS STANDARDS HAVE NOT BEEN MET, THEREFORE REQUEST FOR INJUNCTION SHALL BE DENIED. /RDH 12/29/2011 Motion to Dismiss Event ID: 000011 E-Filed: Y ATY/ SHORT, WILLIAM HONDLOW DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN MOTION TO DISMISS 12/29/2011 Proposed Order E-file use only Event ID: 000012 E-Filed: Y ATY/ SHORT, WILLIAM HONDLOW DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN ORDER GRANTING MOTION TO DISMISS FILE DATE SCHEDULED EVENT DESCRIPTION SCHD DATE TIME ROOM PRI 01/04/2012 Temporary Restraining Ord Hrg 12/16/2011 09:00 AM 3 Officer: ROBERT THOMAS MOORHEAD Length: 1.00 Hour(s) Status.: HELD-Hearing Held 01/07/2012 Response to Motion to Dismiss Event ID: 000013 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP RESPONSE TO MOTION TO DISMISS

01/07/2012 Proposed Order E-file use only Event ID: 000014 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP ORDER RE: RESPONSE TO MOTION TO DISMISS 01/17/2012 Motion Event ID: 000015 E-Filed: Y ATY/ SHORT, WILLIAM HONDLOW DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS 01/17/2012 Proposed Order E-file use only Event ID: 000016 E-Filed: Y ATY/ SHORT, WILLIAM HONDLOW DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS 01/18/2012 Order Event ID: 000017 E-Filed: Y

FILE DATE SCHEDULED EVENT DESCRIPTION SCHD DATE TIME ROOM PRI GRANT (ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS) 01/23/2012 Reply Event ID: 000018 E-Filed: Y ATY/ OPPENHEIMER, DEBRA JANE DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN REPLY IN SUPPORT OF MOTION TO DISMISS 02/21/2012 Order Event ID: 000019 E-Filed: Y ORDER RE: DEFENDANTS MOTION TO DISMISS 02/21/2012 Case Closed Event ID: 000020 E-Filed: N 02/21/2012 Review 02/15/2012 05:00 PM 3 Officer: ROBERT THOMAS MOORHEAD Length: 1.00 Hour(s) Status.: VACT-Vacated Note..: DISMISSAL 03/13/2012 Motion Event ID: 000021 E-Filed: Y ATY/ OPPENHEIMER, DEBRA JANE DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN MOTION FOR AWARD OF ATTORNEY FEES AND COSTS 03/13/2012 Affidavit Event ID: 000022 E-Filed: Y ATY/ OPPENHEIMER, DEBRA JANE DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN EXHIBIT A - AFFIDAVIT OF ATTORNEY FEES AND COSTS 03/13/2012 Bill of Costs Event ID: 000023 E-Filed: Y ATY/ OPPENHEIMER, DEBRA JANE DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN EXHIBIT B - BILL OF COSTS 03/13/2012 Proposed Order E-file use only Event ID: 000024 E-Filed: Y ATY/ OPPENHEIMER, DEBRA JANE DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN ORDER GRANTING MOTION FOR AWARD OF ATTORNEY FEES AND COSTS 03/16/2012 Notice of Appeal Filed Event ID: 000025 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP NOTICE OF APPEAL 03/19/2012 Response Event ID: 000026 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP RESPONSE TO MOTION FOR ATTORNEY FEES 03/19/2012 Proposed Order E-file use only Event ID: 000027 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN

PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP ORDER RE: RESPONSE TO MOTION FOR ATTORNEY FEES 03/23/2012 Notice Filed Event ID: 000028 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP DESIGNATION OF RECORD ON APPEAL 04/03/2012 Reply Event ID: 000029 E-Filed: Y ATY/ OPPENHEIMER, DEBRA JANE DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN REPLY IN SUPPORT OF AWARD OF ATTORNEY FEES AND COSTS 04/03/2012 Proposed Order E-file use only Event ID: 000030 E-Filed: Y ATY/ OPPENHEIMER, DEBRA JANE

FILE DATE SCHEDULED EVENT DESCRIPTION SCHD DATE TIME ROOM PRI DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN PROPOSED ORDER 04/04/2012 Motion Event ID: 000031 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP MOTION TO STRIKE OUT-OF-TIME REPLY BRIEF CONCERNING ATTORNEY FEES 04/04/2012 Filing Other Event ID: 000032 E-Filed: Y ATY/ PLOTT, JAMES CHRISTIAN PTF/ ALLEN, BARBARA PTF/ WESLEY ALLEN FAMILY LP ORDER RE: MOTION TO STRIKE OUT-OF-TIME REPLY BRIEF CONCERNING ATTORNEY FEES 04/09/2012 Notice of Appeal Filed Event ID: 000033 E-Filed: I ADVISEMENT OF FILING NOTICE OF APPEAL 04/24/2012 Response Event ID: 000034 E-Filed: Y ATY/ OPPENHEIMER, DEBRA JANE DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN RESPONSE TO PLAINTIFFS MOTION TO STRIKE 04/24/2012 Proposed Order E-file use only Event ID: 000035 E-Filed: Y ATY/ OPPENHEIMER, DEBRA JANE DEF/ THE HOMESTEAD OWNERS ASSOCIATION IN ORDER DENYING PLAINTIFFS MOTION TO STRIKE AND ORDERING AN ATTORNEY FEE HEARING 06/11/2012 Filing Other Event ID: 000036 E-Filed: R TRANSCRIPT FOR HEARING ON 12 16 2011 End of Case: 2011 CV 001127


Plaintiffs:


FAMILY LP,

v.

Defendant:




COURT USE ONLY


Division:

Courtroom:

MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiffs Barbara Allen and Wesley Allen Family LP, through counsel, move the Court for a temporary restraining order pursuant to C.R.C.P. 65:

Introduction

As described in detail in the Complaint, this case arises from the conduct of

Defendant The Homestead Owners Association, Inc. (“Homestead”) who is

attempting to convey an easement to Eagle County in violation of the

settlement agreement and Easement of 1996.

NO ACTION TAKEN AT THIS TIME

The court has decided to not take action at this time regarding this document. The court may request that the parties submit new motions and proposed orders at a later date.


2

Argument


nonprofit corporation that owns the Homestead Association Open Space.

2. As described in the Memorandum of Understanding (“MOU”)

attached to the Complaint (exhibit 4 thereto), Homestead has undertaken

concrete and substantial steps in an attempt to convey a permanent easement

to Eagle County to provide public access through a portion of 120 acres of

Homestead’s open space, with the easement terminating on U.S. Forest Service

land.

3. Based on recent research of publicly available information,

Homestead began planning to convey an easement to Eagle County in July

2011. From then until now, there has been nary a mention of Homestead’s

putative conveyance to Plaintiffs. Instead, Plaintiffs found out about the

imminent transfer by reading about it in the Vail Daily.

4. Had Homestead simply asked the Plaintiffs, instead of pursuing

their unilateral shoot first, ask later, course of action, judicial intervention

would probably not be required. Instead, Homestead set forth down this path

leaving Plaintiffs with no alternative.

5. Based on publicly available information, Homestead is going to

make a conveyance to Eagle County next couple of weeks, although a date

certain is not known by Plaintiffs.

6. Plaintiffs will be irreparably harmed if the conveyance occurs

because they have no certain legal remedy should Eagle County be gifted a

3

right of way from the Homestead conveyance across or along Plaintiffs’

easement.

7. Plaintiffs will be irreparably harmed because a permanent

easement that provides public access across the 120 acres of Homestead open

space referred to in the MOU will require that the public – and the County –

proceed along and/or cross the Allen Easement, which clearly states that it is

exclusive and for private use.

8. Homestead’s use of the Easement is restricted in that use of the

Easement by Homestead and its members shall be solely to provide access to

the Homestead Association Open Space.

9. Homestead’s attempt to open the entire area to the public without

establishing plans to control the public access or allocate risk is wholly

detrimental to Plaintiffs’ property rights.

10. Homestead is openly violating the restrictive covenants in the

Easement, which expressly provides that “neither Grantor nor Grantee may

grant further interest in the Easement or any improvements constructed

thereon to any third party; . . . .” Moreover, only Plaintiffs possess any method

of conveying or dedicating the Easement to Eagle County, not Homestead.




Allens] and for no other uses except as specified.” (emphasis added). The

Homestead Board has no authority to grant further rights in the exclusive

easement granted to the Allens and Homestead and granting a third party a

4

colorable claim to Plaintiffs’ easement will result in more costly litigation. (See

Ex. 7 to Complaint, Affidavit of Barbara Allen.)

12. Plaintiffs bear the burden of insuring against the risk of loss as

allocated in the Allen Easement (Ex. 1 to Complaint). The risk, as allocated in

the Easement, was manageable so long as access is limited to Plaintiffs’ use

and Homestead homeowners; now, Defendant seeks to invite the public onto

the easement and simultaneous impose the risks and costs of the general

public accessing Plaintiffs’ Easement on Plaintiffs.

13. Homestead has utterly failed to comply with the settlement

agreement and Easement, which expressly limits Homestead’s ability to use

and convey the Easement.



Easement.

15. Plaintiffs are substantially likely to prevail at trial on the merits;

the restrictive covenants in the exclusive Easement clearly prohibit the transfer

that Homestead is attempting to make, and the only remedy is that provided in

the Easement: an order restraining Homestead from making the conveyance.

16. Defendant’s actions are in violation of the settlement agreement

and Easement and Plaintiffs are entitled to a temporary restraining order to

prevent real, immediate, irreparable harm, and unless Defendant is enjoined,

immediate and irreparable injury, loss or damage has and will continue to

occur due to Defendant’s breach of the Easement.

This matter may be set for hearing with notice to the adverse and affected party/parties. /s/ Judge R Thomas Moorhead

Current Date: Dec 08, 2011

Court Authorizer Comments:

{05786213.DOC;1}




ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS

THE MATTER OF the Defendant’s Motion for Extension of Time to File Reply in Support of Motion to Dismiss has come before the Court and the Court is fully advised of the premises. The Motion is GRANTED. The Defendant shall have an extension of time through and including Monday, January 23, 2012 to file its Reply in Support of Motion to Dismiss.

Dated: January , 2012.

BY THE COURT:


GRANTED

The moving party is hereby ORDERED to provide a copy of this Order to any pro se parties who have entered an appearance in this action within 10 days from the date of this order.

EFILED Document CO Eagle County District Court 5th JD Filing Date: Jan 18 2012 10:49AM MST Filing ID: 41972058 Review Clerk: Rhonda Higgins

Current Date: Jan 18, 2012

DISTRICT COURT, EAGLE COUNTY STATE OF COLORADO EFILED … · 22. Upon information and belief, the Homestead association newsletter from July 2011 states that Homestead and the County

Documents