Myers v. Hummel

Filing 124

ORDER denying 89 Plaintiff's Motion for Summary Judgement, by Magistrate Judge Kathleen M. Tafoya on 12/15/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–00400–KMT–KLM

BERNARD KENNETH MYERS,
Plaintiff,
v.
DORWIN DWAYNE HUMMEL,
Defendant.

ORDER

This matter is before the court on Plaintiff’s “Motion for Summary Judgement.” (Doc.
No. 89, filed June 23, 2011 [Mot.].) Defendant responded to Plaintiff’s Motion on September
22, 2011 (Doc. No. 104 [Resp.])1 and Plaintiff filed his reply that same day (Doc. No. 105, filed
Sept. 22, 2011). For the following reasons, Plaintiff’s Motion is denied.
FACTUAL BACKGROUND
In this case, Plaintiff alleges that Defendant breached a fiduciary duty owed to Plaintiff
with respect to Plaintiff’s father’s estate. (See Mot. at 4; Doc. No. 49, filed Apr. 26, 2011, at 2
[Am. Compl.].) Plaintiff alleges that he is the rightful and legal heir of his father, Eldon L.

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Initially, Defendant sought to strike Plaintiff’s Motion (Doc. No. 95, filed July 8, 2011);
however, the court denied Defendant’s motion to strike and ordered Defendant to respond to
Plaintiff’s Motion (Doc. No. 103, Sept. 1, 2011 ).

Myers, Sr. (hereinafter “Eldon Sr.”). (Am. Compl. at 1.) Plaintiff maintains that, upon the death
of Eldon Sr., and until the death of Sally A. Myers,2 Eldon Sr.’s estate was to remain in trust.
(Id. at 1–2.) Plaintiff further alleges that Defendant, as well as Plaintiff’s brother Eldon L.
Myers, Jr. (hereinafter “Eldon Jr.”), were the personal representatives and executors of Eldon
Sr.’s estate. (Id. at 2.) Upon Sally Myer’s death, however, in addition to all of her estate,
Defendant allegedly received most, if not all, of Eldon Sr.’s estate. (Id.) Plaintiff maintains that
the documents by which Eldon Sr.’s estate passed to Defendant were “very questionable.” (Id.)
Moreover, Plaintiff alleges that the transfer of substantially all of Eldon Sr.’s estate to Defendant
resulted in a breach of the fiduciary duty owed to Plaintiff by Defendant to protect Plaintiff’s
portion of his father’s estate. (Id.) As a result of this breach, Plaintiff allegedly suffered
damages of $3.85 million dollars. (Id.)
LEGAL STANDARD
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Summary Judgment Standard
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The moving party bears the initial burden of showing an absence of evidence to support the
nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving
party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for
trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518

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Sally A. Myers is Defendant Darwin Hummel’s mother, as well as Eldon Sr.’s ex-wife.
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(10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the
allegations in the pleadings, but must instead designate “specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact
is “material” if “under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co.,
631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible
evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The
factual record and reasonable inferences therefrom are viewed in the light most favorable to the
party opposing summary judgment. Concrete Works, 36 F.3d at 1517. Moreover, because Plaintiff
is proceeding pro se, the court, “review[s] his pleadings and other papers liberally and hold[s] them
to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d
1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings
drafted by lawyers”). At the summary judgment stage of litigation, a plaintiff’s version of the facts
must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009).
“When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the facts

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for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007); Thomson, 584 F.3d at 1312.
ANALYSIS
Defendant argues that Plaintiff’s Motion should be denied because Plaintiff has failed to
demonstrate that there is no genuine issue of material fact that Defendant owed him a fiduciary
duty, or subsequently breached that fiduciary duty. The court agrees.
As the outset, the court notes that Plaintiff has failed to comply with both the federal rule
and local rule governing summary judgment motions. More specifically, Plaintiff has failed
include “a statement of undisputed facts,” D.C.COLO.LCivR 56.1A, and has failed to support
his assertions that the material facts in this case cannot be genuinely disputed by “citing to
particular parts of materials in the record,” Fed. R. Civ. P. 56(c)(1)(A).
By way of these omissions, Plaintiff’s Motion capably demonstrates that these
requirements are more than mere procedural formalities. Plaintiff’s Motion is replete with
“facts” that, by his own admission, are clearly disputed. For example, Plaintiff sets forth his
“opinion that these document’s [sic] [attached to Plaintiff’s Motion and “at the heart of the
dispute”] are all fraud’s [sic] and forgeries.” (Mot. at 2) (emphasis added). A grant of summary
judgment must be based on undisputed facts, not the moving party’s opinion. Fed. R. Civ. P.
56(a).
Moreover, Plaintiff acknowledges in his Motion that Defendant denies that any
documents were forged or that he knew of or approved of those forgeries. (Id. at 3.) In fact,
Plaintiff admits that Defendant has “deni[ed] [] everything Plaintiff alledged [sic],” and
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acknowledges that it is only “Plantiff’s [sic] opinion” that Defendant “knowingly and willingly
cheat[ed] [Plaintiff] out of [his] rightful and legal inheritance.” (Id. at 8, 11.)
Because Defendant clearly disputes Plaintiff’s “side of the story,” for his summary
judgment motion to be granted, Plaintiff must establish that there is “no genuine dispute as to
any material fact and that [he] is entitled to judgment as a matter of law” by citing to “particular
parts of materials in the record,” Fed. R. Civ. P. 56(a), (c)(1)(A). In this district, Plaintiff must
accomplish this burden by including a separate statement of undisputed facts in his Motion.
D.C.COLO.LCivR 56.1A. Plaintiff has clearly failed to comply with either of these
requirements. Accordingly, the court would be warranted in denying Plaintiff’s Motion on this
basis alone.
Notwithstanding Plaintiff’s Motion’s broader shortcomings, the court nevertheless
proceeds to merits of Plaintiff’s summary judgment argument—that is, that Defendant owed
Plaintiff a fiduciary duty, and breached that duty when he received substantially all of Eldon
Sr.’s estate. Plaintiff maintains that, under Colorado law, a person acting as an executor or
personal representative of an estate is a fiduciary and as such owes a fiduciary duty to act in the
best interest of the beneficiary. (Mot. at 4 (citing Colo. Rev. Stat. § 15-1-103(2).) While the
court accepts for purposes of this motion, without deciding, that Plaintiff has correctly stated the
applicable law, the court finds that Plaintiff has failed to establish that there is no genuine
dispute of material fact as to whether Defendant was the personal representative for Eldon Sr.’s
estate. Fed. R. Civ. P. 56(a). The court has reviewed the 44 pages of exhibits attached to
Plaintiff’s Motion and finds that none of those documents suggest that Defendant was acting as
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the personal representative of Eldon Sr.’s estate. Instead, Eldon Sr.’s will suggests that Sally
Myers, or alternatively, Eldon Jr., was appointed to serve as the personal representative of Eldon
Sr.’s estate. (Mot., Ex. M.) Accordingly, the court finds that Plaintiff has failed to establish that
there is no genuine dispute of fact that Defendant owed him a fiduciary duty. Consequently,
Plaintiff’s Motion is denied.
THEREFORE, for the foregoing reasons, it is
ORDERED that Plaintiff’s “Motion for Summary Judgement” (Doc. No. 89) is
DENIED.
Dated this 15th day of December, 2011.

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