Stroh Ranch Development, LLC v. Cherry Creek South Metropolitan District No. 2 et al

Filing 220

ORDER Setting Oral Argumet on Discrete Issues Raised in the 165 Joint MOTION for Summary Judgment and Memorandum Brief in Support. Oral Argument set for 2/25/2013 03:00 PM in Courtroom A 801 before Judge William J. Martinez, by Judge William J. Martinez on 2/15/2013. (ervsl, ) (Main Document 220 replaced on 2/15/2013) (ervsl, ).

Case 1:10-cv-02216-WJM-KLM Document 220 Filed 02/15/13 USDC Colorado Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-02216-WJM-KLM
STROH RANCH DEVELOPMENT, LLC, a Colorado limited liability company,
Plaintiff,
v.
(1) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 2,
(2) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 3,
(3) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 4,
(4) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 5,
(5) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 6,
(6) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 7,
(7) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 8,
(8) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 9,
(9) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 10,
(10) CHERRY CREEK SOUTH METROPOLITAN DISTRICT NO. 11,
(11) THE PIVOTAL GROUP, INC.,
(12) PIVOTAL PARKER INVESTMENTS, LLC, a Delaware limited liability company a/k/a
(13) Parker Investments 2009, LLC,
(14) PIVOTAL COLORADO II, LLC,
(15) NORTH PARKER INVESTMENTS, LLC,
(16) KURT WOLTER,
(17) KIMBERLY JENSEN,
(18) GREG MCILVAIN,
(19) MARK EAMES,
(20) GREG EPP,
(21) BILLY HARRIS, and
(22) JOHN DOES 1 through 8,
Defendants.

ORDER SETTING ORAL ARGUMENT ON DISCRETE ISSUES RAISED IN
JOINT MOTION FOR SUMMARY JUDGEMENT ECF NO. 165
This matter is before the Court on the Defendants’ (1)-(15) (“Defendants”) Joint
Motion for Summary Judgment (“Motion”). (ECF No. 165.) Plaintiff Stroh Ranch

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Development, LLC has filed a Response, (ECF No. 184) and Defendants have filed a
Reply. (ECF 196.)
On further consideration of this case—coupled with Plaintiff’s recent Motion (ECF
No. 211) regarding new evidence—the Court ORDERS and DIRECTS as follows:
1.

The Court SETS oral argument and supplemental briefing on several
issues that are addressed in the briefing on the Motion, as follows :
A.

Contract Interpretation of Covenant District Clause (“Covenant
Clause”):1

(1) What are the parties’ preferred construction of the relevant
Reimbursement Agreement(s)—particularly the Covenant Clause?
(2) Do the clauses in the Reimbursement Agreements, when read as
whole, create ambiguity for the purposes of construction of the Covenant
Clause? If so what purported extrinsic evidence would Plaintiff point to that
would require jury determination so to support its preferred construction of
the Reimbursement Agreements?
(3) Alternatively, if the Reimbursement Agreement are unambiguous,
what clause(s) support this view?

1

This section is referred to as Section 3 and Section 4 in several of the
Reimbursement Agreements.
2

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B.

Reserved Powers Doctrine:
(1) If the Reimbursement Agreement are unambiguous on Defendants’
(or Plaintiff’s) construction, does this trigger the Reserved Powers
Doctrine so to dispose any of Plaintiff’s claims for the purposes of
summary judgment?
(2) Does binding authority exist in the Tenth Circuit (or persuasive
authority in other circuits) that specifically address the issue of whether the
Covenant Clause triggers the Reserved Powers Doctrine?

C.

Notice and Approval of Districts:
(1) What are the specific Districts that Defendants allege were improperly
noticed (and subsequently approved) at the relevant Directors’ meeting in
December 2004?
(2) Do the alleged improper notices make the Reimbursement
Agreements unenforceable and does this dispose any of Plaintiff’s
claim(s) as a matter of law? Alternatively, do issues of fact arise with
respect to the notice and approval steps that deny Defendants’ Motion for
Summary Judgement as to this issue (ECF No. 165)?

2.

Oral argument will be heard on the above issues (A - C) on Monday,
February 25, 2013 at 3pm.2

2

The Court notes that the ECF No. 165 raised the issue of whether there had
been material breach of the Reimbursement Agreements. For the purposes of the
instant Order, this issue should not be addressed at oral argument or in the
supplemental briefing.
3

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3.

In light of the above, the Court DIRECTS the parties (Plaintiff and each of
named 22 Defendants)3 to file contemporaneous supplemental briefing on
the above three issues (A-C) by no later than Thursday, February 21,
2013. With respect to these supplemental briefs, the parties may rely
upon arguments in the motions ECF Nos. 166, 167, 168 and 169 to the
extent that such briefing addressed issues A-C (Contract Interpretation,
Reserved Powers Doctrine and Notice/Approval). Any deviation of this
instruction will lead to the Court disregarding those passages in the
supplemental briefing. The supplemental briefing will be limited to 10
pages (exclusive of the caption page, attorney signature blocks and
certificate of service). These briefs may include disputed and undisputed
facts that are not already addressed in ECF Nos. 165, 184 and 196. The
Parties’ supplemental briefs should bold those cases that are most
relevant to issues A-C, above and may include additional cases not
already cited in ECF Nos. 165, 184 and 196.

Should Plaintiff's or Defendants' Counsel have questions with respect to this
Order, they may contact the undersigned’s assigned Law Clerk on the following line:
(303)-335-2892.

3

Like the Defendants' Joint Motion for Summary Judgment (ECF No. 165), it is
assumed that these supplemental briefings will be jointly filed by Defendants' Counsel
who were signatories to the Motion ECF No. 165.
4

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Dated this 15th day of February, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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