DeJean et al v. Grosz et al
ORDER denying 57 Motion for Attorney Fees. By Magistrate Judge Nina Y. Wang on 7-24-2015. (nywlc2.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02381-NYW-MJW
FELIX A. DEJEAN, III, an individual,
CAROLYNE DEJEAN, an individual,
COLLEEN A. GROSZ, as Trustee of the Declaration of Trust for Benefit of Colleen A. Grosz,
dated August 11, 1989,
TIMOTHY C. RODELL, an individual,
MARJORIE M. RODELL, an individual,
ORDER ON PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND NON-TAXABLE
Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiffs Felix A. DeJean, III and Carolyne
DeJean’s (collectively, “Plaintiffs” or the “DeJeans”) Motion for Attorneys’ Fees and NonTaxable Expenses, filed on November 13, 2014 [#57] (the “Motion for Fees”). Pursuant to the
Order of Reference dated January 8, 2014 [#25], the Reassignment dated January 8, 2014 [#24],
and the Reassignment dated February 19, 2015 [#68], the Motion for Fees is before this
Magistrate Judge. The court has reviewed the pending Motion for Fees, Defendants Colleen A.
Grosz (“Ms. Grosz”), Timothy C. Rodell (“Mr. Rodell”), and Majorie M. Rodell’s (“Ms.
Rodell,” and with Mr. Rodell, the “Rodells”) (collectively, “Defendants”) Response [#64],
Plaintiffs’ Reply [#66], and any exhibits thereto. Satisfied that the Motion for Fees can be
resolved on the record before the court without the need for oral argument from counsel for the
Parties, for the reasons discussed below, the court DENIES the Motion for Fees.
The DeJeans filed their Complaint in this matter on September 3, 2013. [#1] (the
“Complaint”). The following is a summary of certain relevant allegations from Plaintiff’s
Complaint (allegations that, where factual, were not disputed at summary judgment).
Plaintiffs own a condominium designated as Unit B in a duplex located in Aspen,
Colorado. [#1 at ¶ 2]. Defendant Colleen Grosz owns Unit A in the same duplex. [Id. at ¶ 4].
Both units are located at located on “Lot 5 in Block 1, Promontory Subdivision.” [Id. at ¶ 14].
The Rodells own property located near the duplex in the same subdivision. [Id. at ¶¶ 6, 17].
By warranty deed recorded on November 22, 1957, “Benedict Land and Cattle Company
conveyed Lot 5 to Robert Barnard.” [Id. at ¶ 15]. The deed from Benedict Land and Cattle
Company to Mr. Barnard (the “Benedict Deed”) contained a single family dwelling restriction.
[Id. ¶ 16].
According the Complaint, “There has been a duplex on Lot 5 since at least 1979.” [Id.
at ¶ 19]. Moreover, since 1979, “Lot 5 has been subdivided as a condominium development,
with a map and declaration, containing two units. [Id. at ¶ 20]. Plaintiffs’ alleged that the
dwelling restriction contained in the Benedict Deed decreased the value of Unit B by $500,000
as of the time of the filing of their Complaint. [Id. at ¶¶ 21-22].
Based on these allegations, Plaintiffs sought a declaratory judgment from this court that
“declaratory judgment that the Benedict Single Family Dwelling Restriction is not enforceable
against Unit B or Lot 5” based on grounds including, inter alia, that the “Defendants no longer
have the right to enforce the Benedict Single Family Dwelling Restriction against Unit B or Lot
5” because Defendants’ rights to enforce the applicable restriction were terminated pursuant to
Colorado’s adverse possession statute C.R.S. § 38-41-101. [Id. at ¶ 27].
Relevant Motion Practice and Summary Judgment Order
On November 4, 2013, Defendants moved to dismiss this action as barred by res
judicata. [#7] (“Claim Preclusion Motion to Dismiss”).1 According to Defendants’ Motion to
Dismiss, in 2006, “Defendants, among others, commenced an action against the DeJeans,
among others, in the District Court for Pitkin County, Colorado, Case Number 2006 CV 231
(the ‘Prior Action’).” [#7 at 2]. In the Pitkin County litigation, the DeJeans brought a number
of counterclaims (including one pursuant to C.R.S. § 38-41-101) seeking a declaratory
judgment that the same single family dwelling use restriction at issue in this case was invalid or
otherwise unenforceable. [Id. at 2-4].
On January 14, 2014, while the Claim Preclusion Motion to Dismiss was pending, this
court held a Status Conference. At the Status Conference, this court denied the Res Judicata
Motion to Dismiss without prejudice, and ordered that Defendants were to file any motion
premised on the “absence of subject matter jurisdiction . . . on or before January 31, 2014.”
[#27]. On January 31, 2014, Defendants filed a motion challenging subject matter jurisdiction,
contending that the $75,000 amount in controversy required for the court to hear this case in
diversity was not met because the alleged $500,000 diminution in the value of Unit B was
The Colorado Supreme Court has expressed a preference for the terms “claim preclusion” and
“issue preclusion” over the terms “res judicata” and “collateral estoppel” because “res judicata
is oftentimes used as an overarching label for both claim and issue preclusion” and “such usage
may lead to confusion.” Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d
189, 196 n.11 (Colo. 1999). Accordingly, the court will again use the term “claim preclusion”
in instances where the applicable pleadings and motion papers may have referred to “res
“speculative,” and based on Defendants’ assertion that Plaintiffs had already recovered any
damages as against Stewart Title Guaranty Company in prior litigation. [#30] (“Subject Matter
Jurisdiction Motion to Dismiss”). Defendants also argued that no actual controversy existed as
between the Parties sufficient to confer jurisdiction to this court to enter a declaratory judgment.
On May 21, 2014, the court denied Defendants’ Subject Matter Motion to Dismiss.
[#37]. The court found that this “case presents a substantial controversy between landowners
with competing interests.” [Id. at 4]. The court’s conclusion that a justiciable controversy
existed was based in part on the prior Pitkin County litigation between Defendants, the DeJeans,
and other parties, where Defendants had sought to enforce a height restriction contained in the
same deed at issue in this case.
In determining that the amount in controversy
requirement was met, the court found that although Defendants offered some evidence tending
to rebut Plaintiffs’ claimed damages, the court was unable to find on the record before it “to a
legal certainty that the plaintiffs cannot recover the jurisdictional amount of $75,000 or that the
sum claimed by the plaintiffs is not made in good faith.” [Id. at 5-6].
On June 3, 2014, Defendants filed a renewed Motion to Dismiss premised on claim
preclusion. [#38] (“Renewed Motion to Dismiss”). On August 12, 2014, pursuant to the
court’s Scheduling Order, before the Renewed Motion to Dismiss was fully briefed, both sets of
Parties filed motions for summary judgment.
[#46 (Plaintiffs’ “Motion for Summary
Judgment”), #47 (Defendants’ “Motion for Summary Judgment”)]. Defendants’ Motion for
Summary included the claim preclusion arguments asserted in Defendants’ prior motions to
On October 29, 2014, the court granted the DeJeans’ Motion to Summary Judgment and
denied Defendants’ Motion for Summary Judgment. [#54]. In so ruling, the court found that
claim prelcusion did not apply because there was no dispute that the DeJeans’ adverse
possession declaratory judgment claim had not yet ripened as against the Rodells during the
pendency of the Pitkin County litigation. [Id. at 10]. Moreover, the court found that the
DeJeans’ adverse possession claim had not yet ripened as to Ms. Grosz (an issue not reached by
the state court in the Pitkin County litigation). [Id. at 11]. The court found the remainder of
Defendants’ arguments in support of summary judgment to be unavailing. [#54]. The court
also granted Plaintiffs’ Motion for Summary Judgment, finding that the elements supporting
prescriptive expiration of enforceability of the single dwelling restriction as to the Rodells and
Ms. Grosz under Colorado law were established by the undisputed facts before the court. [#54
On October 30, 2014, based on the court’s Order granting summary judgment, judgment
was entered in favor of the DeJeans. [#55].
Plaintiffs’ Motion for Fees
On November 11, 2013, Plaintiffs timely moved this court for an award of attorney’s
fees and non-taxable expenses. [#57]. Of note to the present disposition, the only statutory
provisions cited in support of Plaintiffs’ request for attorney’s fees are (1) C.R.S. § 38-33.3-123;
and (2) C.R.S. § 13-17-102. [Id. at 3].
Standard of Review
Under the “bedrock principle” known “as the American Rule,” each litigant
presumptively “pays his own attorney's fees, win or lose, unless a statute or contract provides
otherwise.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252-53, 130 S.Ct. 2149,
176 L.Ed.2d 998 (2010) (quotation marks omitted); see also Fed. Rule Civ. P. 54(b)(2)(B)(ii)
(requiring a party moving for attorney’s fees to “specify the judgment and the statute, rule, or
other grounds entitling the movant to the award” in party’s moving papers”). This rule is
“deeply rooted in our history and in congressional policy.” Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 271, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). It is based on the
principle that requiring an unsuccessful litigant to pay the litigation expenses of the prevailing
party would potentially unduly deter parties from seeking to “vindicate their rights” in a judicial
forum. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404,
18 L.Ed.2d 475 (1967).
Application to Plaintiff’s Motion for Fees
Analysis of Colorado Common Interest Ownership Act as Basis for Fees
Under the Colorado Common Interest Ownership Act (C.R.S. § 38-33.3-101 et seq.),
pursuant to C.R.S. § 38-33.3-123, a unit owner may seek attorney’s fees for any “failure to
comply with the provisions of this article or any provision of the declaration, bylaws, articles, or
rules and regulations” of a common interest community.” C.R.S. § 38-33.3-123. In arguing
that C.R.S. § 38-33.3-123 applies to the claims and defenses at issue in this litigation, Plaintiffs
point to the existence of a 1979 instrument providing for subdivision of Lot 5 into condominium
units. [#57 at 4 & 57-1] (the “Declaration”). But Plaintiffs do not identify any provision in this
Declaration that Ms. Grosz or the Rodells failed to comply with giving rising to this litigation—
much less any provision vindicated by the court’s Order and Judgment finding that Defendants’
rights to enforce the single family dwelling restriction contained in the Benedict Deed had been
extinguished as to Defendants by operation of Colorado’s adverse possession law as codified by
C.R.S. § 38-41-101.
Accordingly, the court finds that the Colorado Common Interest
Ownership Act does not provide a valid statutory basis for seeking fees pursuant to Fed. Rule
Civ. P. 54(b)(2)(B) in this action.
Analysis of C.R.S. § 13-17-102 as Basis for Fees
Plaintiffs also argue that attorney’s fees may be awarded as against Defendants pursuant
to C.R.S. § 13-17-102. [#57 at 5-11]. Under this statutory scheme, fees may be sought against
“any attorney or party who has brought or defended a civil action, either in whole or in part, that
the court determines lacked substantial justification.” C.R.S. § 13-17-102(2).
But the Tenth Circuit has previously recognized that, in diversity cases, fee-shifting
statutory provisions are to be treated as procedural in instances where (as here) fees are to be
awarded pursuant to statute “based on a litigant’s ‘bad faith’ conduct in litigation.’” Scottsdale
Ins. Co. v. Tolliver, 636 F.3d 1273, 1279 (10th Cir. 2011) (citing Chambers v. NASCO, Inc.,
501 U.S. 32, 52-53, 111 S.Ct. 2123 (1991)). Federal courts sitting in diversity typically apply
federal procedural law and state substantive law. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct.
1136, 14 L.Ed.2d 8 (1965). Moreover, courts in this district have repeatedly held that, “to the
extent Colo.Rev.Stat § 13–17–101 et seq. is inconsistent with the procedural safe-harbor
provisions of Rule 11, it is preempted.” Spratt v. Leinster, No. 06–cv–01526–WDM–KLM,
2007 WL 2412826, at *1 (D. Colo. Aug. 21, 2007) (citing McCoy v. West, 965 F.Supp. 34, 35
(D. Colo. 1997) (quotation omitted); see also Kazazian v. Emergency Service Physicians, P.C.,
300 F.R.D. 672, 676-77 (D. Colo. 2014) (holding same); Martinson v. Professional Bureau of
Collections of Maryland, Inc., No. 09–cv–02145–MSK–BNB, 2010 WL 3777282, at *3 (D.
Colo. Sept. 21, 2010) (“The state statute does not contain a ‘safe harbor’ provision and therefore
is inconsistent with Rule 11. Accordingly, it is Rule 11 that is applied here.”).
Because Plaintiffs admittedly did not comply with Rule 11’s safe harbor requirement in
challenging the positions taken by Defendants in the serial motion practice Plaintiffs only now
take issue with after judgment has entered in Plaintiffs’ favor [#66 at 5-6], the court finds that it
cannot award fees pursuant to C.R.S. § 13-17-102(2). Moreover, the court has reviewed
Defendants’ motions to dismiss and motion for summary judgment, and notes that while the
court previously found the arguments advanced to be ultimately unavailing, none of them in the
view of the undersigned lacked “substantial justification” as contemplated by C.R.S. § 13-17102(2).
Based on the court’s review of the papers and supporting evidence, and application of
the pertinent case law, IT IS HEREBY ORDERED that:
(1) Plaintiffs’ Motion for Attorneys’ Fees and Non-Taxable Expenses [#57] is DENIED.
DATED: July 24, 2015.
BY THE COURT:
s/ Nina Y. Wang___________
United States Magistrate Judge
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