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

Filing 257

ORDER Requiring Submission of Additional Materials in regards to Notice Issue in ECF no 248 , 249 , 250 , and 251 & Subsequent Renewed Motions. The Parties shall file contemporaneous supplemental briefs no later than June 17, 2013, consistent with what has been stated in this Order. Such briefs are to be no longer than 15 pages in length, exclusive of attorney signature blocks and certificate of service; and 2. No response or reply briefing will be permitted, by Judge William J. Martinez on 6/6/2013. (ervsl, )

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 REQUIRING SUBMISSION OF ADDITIONAL MATERIALS
IN REGARDS TO NOTICE ISSUE IN ECF NO. ECF NOS. 248, 249,
250 AND 251 & SUBSEQUENT RENEWED MOTIONS

This matter is before the Court on the Defendants’ (“Defendants”) Renewed
Motions for Summary Judgment (“Motions”). (ECF Nos. 248-251.) Plaintiff Stroh

Ranch Development, LLC has filed Responses, (ECF No. 253-256) and Defendants
are to file replies on June 7, 2013.
I. BACKGROUND
To date, the parties have briefed and assisted the Court with oral argument on
issues with respect to: (1) the interpretation of the Reimbursement Agreements (the
Interpretation Issue); (2) the implied covenant of good faith and fair dealing issue (the
Implied Covenant Issue); (3) the Reserved Powers Doctrine Issue; (4) the Statute of
Limitations Issue; and (5) the Notice Issue. These issues have been central to the
dispute—and in particular, Plaintiff’s contract claims.
On March 18, 2013, the Court issued a detailed Order on issues (1) and (2). The
core of that Order addressed the Interpretation Issue based on the parties’ preferred
interpretations stated in their briefing. (ECF No. 233).1
On March 18, 2013, the Court also issued an Order denying Defendants’
remaining Motions for Summary Judgment without prejudice. (ECF No. 234.) In that
Order, the Court asked the parties to address the appropriateness of the re-filing the
remaining Motions for Summary Judgment. (Id.) This conference addressed all of the
above issues (1)-(5) in summary fashion, along with Plaintiff’s equitable claims, inter
alia, issues related to qualified and legislative immunity.2
1

The parties should be well aware that the Court will not be reconsidering the
Interpretation issue, unless of course, this matter proceeds to trial. Nor will it be considering
issues related to the good faith and fair dealing. This was foreshadowed at the Rule 16(c)
Conference on April 15, 2013.
2

During the Rule 16(c) Conference, the Court made it very clear its concerns regarding
the circularity relevant to the Plaintiff’s contract claims (and disputed issues of fact identified in
ECF No. 233), and Defendants’ Motions for Summary Judgment as applied to Plaintiff’s
equitable claims.

2

Notably, the Notice Issue is the principal remaining dispute remaining to be
adjudicated by the Court prior to trial in this matter. As more fully set forth below, the
Court has determined that additional briefing from the Parties will significantly assist it in
ruling on this issue.
II. COURT’S REQUEST FOR SUPPLEMENTAL BRIEFING
Relevant to the Notice Issue, the Court directs the parties to address the
following sub-issues:
1.

Whether the meetings’ minutes state that notice was properly posted?

2.

Whether the posting complied with the relevant Colorado Statutes?

3.

Even if the notice was improperly posted, whether the Boards of Directors
subsequently ratified the validity of the Reimbursement Agreements as
valid?; and

4.

Whether the doctrine of equitable estoppel applies in this case?

The Parties are free to adopt arguments they have stated previously on the
Notice Issue, and they may expand beyond them for the purposes of the supplemental
briefing. The Parties may also cross-reference previous briefs, provided such
references are bolded; but, ideally, the Parties should be summarizing their strongest
arguments, coupled with the relevant authorities.
With respect to sub-issue 4, equitable estoppel, the Court notes that the Parties
have only made limited reference to the most relevant authorities. With respect to this
sub-issue, in particular, the Court directs the Parties to address: (a) Perl–Mack Enters.

3

Co. v. City & County of Denver, 568 P.2d 468, 471 (Colo. 1977),3 and (b) City of Colo.
Springs v. Colo. City, 94 P. 316, 320 (Colo. 1908).4 5 6
Most importantly, the Court also seeks briefing on the applicability of the
following cases to the facts in suit: (a) Piz v. Housing Auth., 289 P.2d 905 (1955); and,
the more recent case, and (b) Tarco, Inc. v. Conifer Metropolitan District 2013 WL
1767616 (April 25, 2013). In Conifer, the Court stated:
Equitable estoppel is based on principles of fair
dealing and is designed to prevent manifest injustice. The
doctrine may be asserted against governmental agencies. In
the context of municipalities, the doctrine of equitable
estoppel bars a city from enforcing some obligation by taking
a position contrary to a previous representation reasonably
relied upon by the party dealing with the city to his detriment.
[T]he doctrine of equitable estoppel has been invoked to cut
off rights or privileges conferred by statute. A party asserting
equitable estoppel must establish that (1) the party to be
estopped knew the facts and either intended the conduct to
be acted on or so acted that the party asserting estoppel
must have been ignorant of the true facts, and (2) the party
asserting estoppel must have reasonably relied on the other
party's conduct with resulting injury. Whether the
circumstances in a case involve representation and
reasonable reliance giving rise to equitable estoppel are
questions of fact. (citations omitted) (internal quotation
marks omitted).
2013 WL 1767616, at *7.

3

4

See ECF No. 184 at 188.
Id.

5

See also Wheat Ridge Urban Renewal Authority v. Cornerstone Group XXII, LLC, 176
P.3d 737 (Colo. 2007) cited at ECF No. 188 at 22 and authorities cited therein.
6

See Kruse v. Town of Castle Rock, 192 P.3d 591, 603 (Colo.App. 2008); Jafay v.
Board of County Comm'rs, 848 P.2d 892, 903 (Colo.1993) (summarizing the principles
encompassed by equitable estoppel).

4

In Conifer, the court’s reasoning is detailed in its application to the facts of that
case. The Court expects the same from the Parties, given the importance of the Notice
Issue as proffered, inter alia, by Defendant’s Counsel Pivotal Group, Inc.
Finally, the Parties’ supplemental briefs should clearly indicate which Districts the
Notice Issue applies to.
III. CONCLUSION
Accordingly, the Court ORDERS as follows:
1.

The Parties shall file contemporaneous supplemental briefs no later than
June 17, 2013, consistent with what has been stated in this Order, above.
Such briefs are to be no longer than 15 pages in length, exclusive of
attorney signature blocks and certificate of service; and

2.

No response or reply briefing will be permitted.

Dated this 6th day of June, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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