Wilner et al v. Behringer Harvard Cordillera, LLC et al
FINDINGS OF FACT AND CONCLUSIONS RE DENIAL OF PRELIMINARY INJUNCTION by Judge R. Brooke Jackson on 3/2/17. (jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 16-cv-02999-RBJ
JANE WILNER, TRUDO LETSCHERT,
ROBERT RUDNICK, and RUSSELL SCHMEISER,
individually and on behalf of all others similarly situated,
BEHRINGER HARVARD CORDILLERA, LLC,
BEHRINGER HARVARD HOLDINGS, LLC,
ROBERT M. BEHRINGER, and MICHAEL D. COHEN,
CSMN INVESTMENTS, LLC and CCG MANAGEMENT, LLC,
FINDINGS AND CONCLUSIONS RE DENIAL OF PRELIMINARY INJUNCTION
Plaintiff’s motion for a preliminary injunction was heard on February 16, 2017. At the
conclusion of the hearing the Court denied the motion and advised the parties that written
findings and conclusions would follow. See Fed. R. Civ. P. 52(a)(2).
Cordillera is a resort residential community in Eagle County, Colorado. Plaintiffs are
four of the homeowners at Cordillera and are members of the Cordillera Property Owners
Association (“CPOA”). Residents such as the plaintiffs have historically had access to a variety
of amenities including golf courses, tennis courts, restaurants, and a 56-room Lodge and Spa
Plaintiffs describe the Lodge as a “central amenity to home ownership in Cordillera.”
Second Amended Complaint, ECF No. 37, at 2. However, the Declaration of Protective
Covenants, Conditions, and Restrictions for Cordillera provides that no persons, including
members of the CPOA, have a “right” to use the Lodge; that access to it may be restricted or
terminated by its owner; and, indeed, that the Lodge may be sold or closed. See ECF No 48-1 at
¶¶1.3, 1.23, 1.25, 2.3. These covenants, referred to by the parties as the Cordillera Declaration,
were recorded in the Eagle County records in or about 1993, before plaintiffs purchased their
In 2007 defendant Behringer Harvard Cordillera, LLC (“BHC”) purchased the Lodge for
approximately $36.5 million. Affidavit of Lisa Ross, ECF No. 48-3, at ¶5. However, from the
outset of BHC’s ownership the Lodge was not profitable. In 2008, for example, the Lodge had a
net operating loss of approximately $2.8 million on total income of approximately $5.9 million.
The Lodge & Spa at Cordillera Total Income/Net Operating Income/(Loss), Ex. L.
In 2009 BHC formulated a plan that it hoped would turn things around. As a part of the
plan BHC proposed an amendment to the Planned Unit Development (“PUD”) that governed the
uses permitted on the property on which the Lodge sits (“the Lodge Parcel”) as well as the uses
permitted on an adjacent parcel referred to as “the Village Parcel.” The amendment would bring
the two parcels together into one unit which would then permit all the uses authorized for the
Village Parcel to apply equally to the Lodge Parcel and vice-versa. See Letter from Amanda
Smith, Otten Johsnon, to Bob Narracci, Planning Manager, Eagle County (Nov. 11, 2009), Ex. D
(transmitting application to modify the PUD); Cordillera Subdivision Eleventh Amended and
Restated Planned Unit Development Control Document (Nov. 2009), Ex. E (redlined PUD).
Because this was considered to be a major change in the way the two parcels could
potentially be used, approval was required both from the County and the CPOA. Those
approvals were obtained, and the new uses were authorized by what has been referred to as the
Eleventh Amendment to the PUD. The effect of the amendment was that authorized uses of the
Lodge Parcel now included, in addition to its historic use as a lodge and spa, some 33 other
possible uses. One of the newly authorized uses was for “Medical Offices/Facilities, limited to
clinic and outpatient facilities for non-critical care, including, without limitation, for outpatient
plastic surgery and other cosmetic procedures.” Ex. E. at 13.
Nevertheless, BHC continued to use the Lodge Parcel for the Lodge and Spa as originally
designed and historically used. Ms. Ross, who is the Senior Vice President and Chief Financial
Officer of an affiliated Behringer Harvard company, informed the Court that “[s]ince the 2009
modification of the PUD . . . BHC has put millions of dollars into the Lodge hoping to make it
profitable.” ECF No. 48-3 at ¶5. But occupancy rates did not recover, and memberships in the
Lodge steadily declined. 1 The Lodge has generated net operating losses each year through the
present time. Ex. L. According to Ms. Ross, the occupancy rates, memberships and ultimately
revenues were too low to operate the Lodge profitably. Id. at ¶6.
It is not clear to me what benefits memberships provided. Mr. Wilner testified that BHC imposed a fee
of $1,500 each season to be a member of the Lodge, and that some people paid it because they use the
Lodge. But he also testified that you could use the Lodge anyway, just not as a member, and he said that
he thought there were discounts involved. In any event, according to Ms. Ross and Exhibit M, from 2013
to the present memberships declined from 206 to 80 (apparently out of approximately 850 households).
According to Ms. Ross, two of the four named plaintiffs are not members, and she found no records
indicating that any of the four plaintiffs had used the hotel for themselves or guests. Mr. Wilner
countered that he and his wife do use the Lodge.
Therefore, BHC put the Lodge up for sale in November 2013. During the next 30 months
it received only one offer from a qualified buyer. That was an offer by intervenors CCG
Management, LLC and CSMN Investments, LLC (collectively “CCG”) to buy the Lodge for $10
million. CCG plans to convert the Lodge into a “residential non-critical care clinic and
rehabilitation center for persons recovering from alcoholism, eating disorders, drug addiction,
and similar conditions.” Affidavit of Noah Nordheimer, President and Manager of the two CCG
intervenors, ECF No. 48-4, at ¶4. Mr. Nordheimer describes the project as an “$85 million
redevelopment.” Id. The Lodge will no longer function as a lodge or spa as such. It will be
accessible only to persons who are admitted to the facility for treatment and who can pay
between $40,000 and $65,000 per 28 days (a short-term, less expensive alternative will
apparently also be available). Plaintiffs and other members of the public will not have access to
the facility, unless of course they are admitted as paying clients.
Eagle County’s Community Development Director confirmed on July 11, 2016 that
CCG’s intended development and use of the Lodge Parcel was permitted by the Eleventh
Amendment to the PUD. The Cordillera Metropolitan District and the CPOA appealed the
Director’s interpretation to the Eagle County Board of County Commissioners. On October 11,
2016 the Board passed Resolution No. 2016-079, affirming the Director’s interpretation with
certain modifications. ECF No. 48-5 (also hearing Ex. I). The Resolution is apparently the
subject of two pending legal challenges in state court under Rule 106 of the Colorado Rules of
Civil Procedure. ECF No. 48-4 at ¶11.
In her affidavit Ms. Ross states that she expects the Lodge to be completely or
substantially closed on February 28, 2017. ECF No. 48-3 at ¶7. Thereafter it will no longer be
open to the public or to Cordillera residents. Id. During the preliminary injunction hearing BHC
indicated that the Lodge would be closed on that date regardless of the outcome of the hearing.
Plaintiffs filed this lawsuit on December 7, 2016. They assert claims sounding in fraud,
promissory estoppel, and breach of an implied covenant that the Lodge would remain as a lodge,
accessible to plaintiffs and other Cordillera property owners. ECF No. 37. On behalf of
themselves and a purported class, they seek judicial declarations (1) that there is an implied and
enforceable restrictive covenant that requires that the Lodge continue to exist as a Lodge,
accessible to plaintiffs and those similarly situated upon their compliance with the terms and
conditions for use set of the Lodge’s owner; (2) that the Eleventh Amendment to the PUD is null
and void to the extent of the modifications that allowed the Lodge to be eliminated and to be
replaced by any of the 33 proposed new uses for the Lodge Parcel; and (3) that henceforth any
modification that would allow the Lodge to be eliminated and replaced by any of the 33 other
uses must first be presented to and approved by the members of the CPOA. Plaintiffs also seek
corresponding injunctive relief and an award of compensatory damages exceeding $100 million.
ECF No. 37 at 29-30.
The problem that precipitated the motion for a preliminary injunction was the imminent
closing of the purchase contract between BHC and CCG. Plaintiffs asserted that BHC would not
reveal when the contract would close other than to agree that it would not happen before
February 17, 2017, the day after the scheduled preliminary injunction hearing. ECF No. 34 at 3.
Fearing that they would be unable to prevent the closure of the Lodge and its conversion into a
treatment facility if the purchase agreement closed, plaintiffs asked the Court to enjoin the
closing pending a final determination on the merits or at least for 60 days so that they could
obtain discovery and attempt to establish their entitlement to summary judgment. Id.
Near the beginning of the hearing, before receiving any evidence or argument, I asked the
defendants whether they might be willing to agree to plaintiff’s request for a 60-day
postponement of the closing. They declined, as was their right, and the hearing proceeded.
One of the named plaintiffs (Schmeiser) represents that he is a citizen of Colorado
residing at his home in Cordillera. The other three named plaintiffs, although also owners of
homes in Cordillera and members of the CPOA, represent that they are citizens of Florida
(Wilner and Letschert) and the District of Columbia (Rudnick). Plaintiffs allege that the
individual defendants associated with BHC (Behringer and Cohen) are citizens of Texas, and that
BHC and Behringer Harvard Holdings, LLC are incorporated in Delaware and have their
principal places of business in Texas. ECF No. 37 at 5-6. Although not entirely clear, it appears
that the CCG intervenors are probably citizens of Maryland. See ECF No. 1 at 6, ¶9.
This Court has jurisdiction pursuant to the Class Action Fairness Act of 2005, specifically
28 U.S.C. § 1332(d)(2). This is a purported class action in which the matter in controversy
exceeds the sum or value of $5,000,000 and in which at least one member of the class of
plaintiffs is a citizen of a State different from any defendant.
PRELIMINARY INJUNCTION STANDARD
To succeed on a motion for a preliminary injunction, the movant must demonstrate the
following four factors:
(1) a substantial likelihood of success on the merits of the case; (2) irreparable
injury to the movant if the preliminary injunction is denied; (3) the threatened
injury to the movant outweighs the injury to the other party under the preliminary
injunction; and (4) the injunction is not adverse to the public interest.
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). “[B]ecause a preliminary injunction is
an extraordinary remedy, the movant’s right to relief must be clear and unequivocal.” Dominion
Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (internal
quotation marks omitted).
In the past the Tenth Circuit imposed a lesser burden of establishing likelihood of success
on the merits in cases where the plaintiff makes a strong showing on the hardship factors. See,
e.g., Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002) (“If the plaintiff can establish that
the latter three requirements tip strongly in his favor, the test is modified, and the plaintiff may
meet the requirement for showing success on the merits by showing that questions going to the
merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation
and deserving of more deliberate investigation.”) (internal quotation marks omitted). Recent
decisions, however, suggest that the more lenient standard for showing success on the merits
likely is no longer recognized. See Dine Citizens Against Ruining our Environment v. WPX
Energy Production, LLC, 839 F.3d 1276, 1282 (10th Cir. 2016) (“Under Winter [v. Natural
Resources Defense Council, 555 U.S. 7, 22 (2008)]’s rationale, any modified test which relaxes
one of the prongs for preliminary relief and thus deviates from the standard test is
impermissible.”); see also Planned Parenthood Ass’n of Utah v. Herbert, 839 F.3d 1301, 1310
(10th Cir. 2016) (Gorsuch, J., dissenting from denial of rehearing en banc); Planned Parenthood
Ass’n of Utah v. Herbert, 828 F.3d 1245, 1267–68 (10th Cir. 2016) (Bacharach, J., dissenting).
A. Likelihood of Success on the Merits.
Plaintiffs supported their request for a preliminary injunction with the declarations of
plaintiffs Jane Wilner and Elise Micati. In addition they presented a declaration of Jeffrey
Hartman, formerly the Design Review Coordinator for the CPOA, testimony at the hearing by
Thomas Wilner, and several exhibits.
In her declaration Ms. Wilner states that “[w]e were told that [BHC] planned to expand
the Lodge and its services by enlarging the hotel and building casitas on the property,” and that
the proposed amendment to the PUD was designed to “obtain the authority to do that.” ECF No.
34-4. 2 She further states that, in order to obtain the necessary approvals of the amendments to
the PUD by the County and the CPOA, representatives of BHC represented that the
modifications “[did] not introduce new or additional density or uses or otherwise substantively
change the Existing PUD.” Id. at 12. “[BHC] never represented or implied that its proposed
modification could allow the Lodge to be eliminated or replaced by any of the uses it listed in its
proposed modifications to the exclusion of me and the Cordillera community.” Id. at ¶13. She
states that the CPOA approved BHC’s proposed modifications in reliance on BHC’s
representations. Id. at ¶14.
Elise Micati indicates that she was the President of the CPOA at the time. Declaration,
ECF No. 34-5, at ¶2. She adds certain details to Ms. Wilner’s story, i.e.: (1) from June through
Ms. Wilner purports to speak not only for herself but also for other Cordillera property owners.
However, I am aware of no basis on which she is authorized to speak either for the CPOA or any other
resident. I accept the declaration with that limitation.
October, 2009 she met many times with representatives of BHC; (2) it was represented that BHC
planned to invest substantial money to expand the Lodge and to include fractional timeshare
units; (3) the modifications of the PUD would allow that to happen; (4) the CPOA saw no
downside to the proposal because BHC provided assurance that the amendment “would make no
substantive changes to the existing PUD and would not affect adjoining property owners because
it would not affect the overall density that was already permitted. Id. at ¶4. She points to the
November 11, 2009 cover letter transmitting the proposed amendments to the County. Ex. E.
She states that the letter, written by BHC’s counsel, summarizes the same assurances that BHC
gave to the CPOA and on which the CPOA relied. Id. Ms. Micati acknowledges that the
amended PUD permits the Lodge Parcel to be used for “Medical Offices/Facilities” but states
that this was intended to allow medi-spa type cosmetic services. Id. at ¶5.
The declaration of Jeffrey Hartman, CPOA’s Design Review Coordinator in 2009,
indicates that he participated in all of the meetings with BHC on behalf of the CPOA. ECF No
34-6 at ¶1. He states that BHC wanted to combine the Lodge Parcel and the Village Parcel into a
single parcel for development purposes so that the allowable development densities could be
shifted between them. Id. at ¶4. However, BHC represented that this would not affect adjacent
property owners because the uses would remain the same. Id. He adds that BHC never
suggested that the amendment would authorize the owner to eliminate the Lodge. Id. at ¶6. He
confirms the November 11, 2009 letter from BHC’s counsel to the County accurately
summarizes BHC’s representations to the CPOA as well. He expresses the opinion that BHC
wanted to provide cosmetic, spa-type procedures consistent with the use of the facility as a spa.
Id. at ¶7.
The latter is speculation, but that is not the primary problem with the Hartman
declaration. Thomas Wilner, the husband of plaintiff Jane Wilner (and a lawyer of counsel to the
New York law firm of Shearman & Sterling, LLP), testified that he drafted the affidavit
following telephone conversations with Mr. Hartman. It was an expansion of an affidavit Mr.
Hartman had given for the proceedings before the County. Mr. Hartman said that it was fine and
signed it. But at the hearing BHC produced a second declaration (“affidavit”) from Mr.
Hartman. Affidavit of Jeffrey Hartman (Feb. 14, 2017), Ex. Z. In a letter to Mr. Wilner attached
to the second affidavit Mr. Hartman states that he had been doing further thinking and research
about the things they had discussed on the phone. “Having felt pressured, and feeling like you
put words in my mouth about the changes made in 2009, I’d like to now express these thoughts
and have them added to my declaration.” Id.
Mr. Hartman now states that the original idea was for the Lodge to provide a “boutique”
style of medical facility where individuals could obtain cosmetic procedures without “prying
eyes.” BHC representatives also talked about a facility that could provide shoulder or knee
surgeries for people who were injured skiing, “a Steadman Hawkins kind of experience.” 3 BHC
representatives expressed their intent to move density to the Lodge Parcel to be able to create a
“fractionalized entity.” In Mr. Hartman’s opinion, the new owner (CCG) and proposed new use
of the Lodge Parcel “isn’t out of that realm” and wouldn’t violate the PUD. It would
fractionalize the rooms to “sell” for $65,000 for 28 days according to a medical report. He says
that, contrary to the fears of some, he doesn’t believe there will be an influx of “crackheads and
junkies,” because people who can afford the treatment will more likely be “Beverly Hills moms
The Steadman Clinic, formerly Steadman Hawkins Clinic, is a well-known orthopedic care center with
facilities in Vail, Colorado and other places.
who are addicted to pain pills,” and they might even buy property in Cordillera after being
exposed to it. He adds that he does not believe that closing public access to the Lodge will be a
big loss, noting that he often was the only person in the gym or the restaurant, and that he could
count on one hand the number of times his Public Safety group had to monitor parking for a
special event during the eight years he was there. Id.
During the hearing Mr. Wilner expressed dismay at the second Hartman affidavit,
suggesting that something must have happened after the first affidavit to cause these second
thoughts. He tried to reach out to Mr. Hartman but did not hear back from him. I am not
suggesting that anyone acted in bad faith. But, the letter attached to the second affidavit plainly
diminishes the force of Mr. Hartman’s original declaration. Unlike the original declaration, the
letter is written in his own words.
At bottom, however, none of these declarations is convincing. The notion that the 2009
amendments to the PUD permitted the closure of the Lodge is simply wrong. The Cordillera
Declaration has authorized the owner to shut down the Lodge since 1993, give or take. And the
proposed amendments listed 33 new standalone uses that would be authorized for the Lodge
Parcel, including such things as retail commercial, professional offices, and residential uses.
While the prior PUD stated that the only permitted use was a “Clubhouse and Lodge building or
building with related facilities including but not limited to” nine types of facilities enumerated
(a) through (i), the amendments deleted the “including but not limited to” language and
numbered the “Clubhouse and Lodge” option (1), the next type of facility (2), and so on,
including two dozen new uses from the Village Parcel. Ex. E at 13. Tom Ragonetti, BHC’s lead
counsel during the amendment process in 2009, testified at the preliminary injunction hearing
that the CPOA received and commented on drafts of the proposed amendments. Indeed, on
October 19, 2009 the CPOA, after “review by the Board and upon the advice of staff and legal
counsel,” expressly approved the changes set forth in the Eleventh Amendment to the PUD. A
Resolution Approving the Cordillera Subdivision Eleventh Amended and Restated Planned Unit
Development Guide, Ex. A.
One authorized new use was for non-critical medical care “including, without limitation,
for outpatient plastic surgery and other cosmetic procedures.” Ex. E at 13 (emphasis added). It
is undisputed that the final wording of that authorized use was proposed by the CPOA and
accepted by BHC. During the hearing plaintiffs’ counsel advised the Court that plaintiffs are not
claiming that the treatment facility contemplated by CCG does not fit within the amended PUD’s
description of a “medical facility.”
Moreover, during the preliminary injunction hearing plaintiffs’ counsel (and Mr. Wilner
in his testimony) informed the Court that plaintiffs do not object to placement of an addiction
treatment facility on the Lodge Parcel. Plaintiffs distinguish themselves from certain individuals
who apparently, in earlier protests, objected to having addicts in their midst. They also
submitted a CPOA notice to homeowners which emphasized that persons with disabilities are
welcome in Cordillera. Update on Pending Sale of Lodge and Spa at Cordillera (Aug. 19, 2016),
Ex. 1. Despite the broad declaratory relief sought in the Second Amended Complaint, plaintiffs
indicated that they would be fine with an agreement or court order that a portion of the Lodge
would be maintained as a lodge with amenities available to the homeowners and the public. But
the Court has no basis to order that in the face of the Cordillera Declaration.
Plaintiffs emphasize certain statements in the previously mentioned cover letter of
November 11, 2009. ECF No. 34-1. In that letter counsel represented to the County, among
other things, that its intent was “to address certain ‘clean-up’ items in the Existing PUD,” and
that “[t]he Amendment does not introduce new or additional density or uses to the Existing PUD,
or otherwise substantively change the Existing PUD.” ECF No. 34-1 at 1. The letter does note
that the amendment would make densities and permitted uses the same for the Lodge and the
Village Parcels. “This treatment reflects existing development and the contemplated completion
of the Lodge at Cordillera.” Id. Plaintiffs particularly call my attention to a statement in the
letter that “[t]he Amendment will not have any effect on adjacent properties because it does not
change the overall uses or densities currently contemplated in the Existing PUD.” Id. at 3.
For the most part these statements are accurate. I do not agree with counsel’s opinion
that the amendments would not have an effect on adjacent properties. The amendments did not
have an immediate effect in 2009, and if BHC’s efforts to upgrade the Lodge and make it
profitable had succeeded in the following years, we probably would not be here. But by
permitting 33 new uses of the Lodge Parcel the amendments facilitated the sale of the Lodge to a
buyer that will convert the Lodge to a high-end treatment facility. That affects adjacent
properties. Counsel’s statement was, in my view, careless at best.
But the impact of the statement is mitigated by several facts: (1) the letter was sent to the
County, not these plaintiffs; (2) the remainder of the letter and the proposed changes to the PUD
made it clear that many new uses would now be permitted for the Lodge Parcel; (3) the CPOA,
after consulting counsel, approved the proposed amendments before this letter was even sent, Ex.
A; and (4) the Cordillera Declaration permitted BHC to close the Lodge entirely regardless of the
In sum, for purposes of a preliminary injunction, I cannot find that plaintiffs have
established a likelihood of ultimate success on the merits of any of their claims for relief to the
extent that the ultimate relief sought is an injunction or declaration requiring the continued
existence of the Lodge as a lodge accessible to the plaintiffs; or nullification of the Eleventh
Amendment to the PUD; or requiring a new vote of the CPOA on the 2009 modifications to the
PUD. As I will discuss next, I do not find that plaintiffs have made a sufficiently strong showing
on the other three preliminary injunction factors to sustain the likelihood of success element even
if the Tenth Circuit still recognized the more relaxed showing.
B. Irreparable Harm to the Movants.
When the Lodge was constructed it was a beautiful facility, consisting of a high-end
hotel, a restaurant, indoor and outdoor pools, whirlpools, steam baths, saunas, a gymnasium, and
a spa. Declaration of Jane Wilner, ECF No. 34-4, at ¶3. Ms. Wilner states that the Lodge was
critical to her decision of purchase a home in Cordillera. Id. at ¶5. I have no reason to doubt the
sincerity of that statement. Nor do I doubt that the Lodge was a part of what made buying a
home in Cordillera attractive to others as well. The loss of this amenity as a prominent feature of
the community causes harm to the plaintiffs and other residents whether or not they frequently
use the facility. I acknowledged that harm early in the hearing.
When I had an opportunity to receive the parties’ arguments and evidence, however,
which helped to clarify the written materials that I had only had a brief opportunity to review
before the hearing, it became evident to me that the plaintiffs could not establish irreparable
harm. The primary problem is the one I identified above in discussing likelihood of success on
the merits. BHC has the right under the Cordillera Declaration to shut down the Lodge. BHC
presented unrefuted (and probably irrefutable) evidence that it intends to close the Lodge on
February 28, 2017, because the Lodge continues to lose money. I know of no authority that
would permit me to force BHC to continue to operate the Lodge in the face of that Declaration.
Plaintiffs’ claim of irreparable harm, therefore, must focus not on the closure of the
Lodge as such but on harm that will be caused by converting the former Lodge into a high-end
addiction treatment facility. However, plaintiffs did not provide any evidence that the creation of
such a facility on the Lodge Parcel would cause them harm. On the contrary, as I noted above,
they do not object to construction of the treatment facility so long as at least a portion of the
Lodge is maintained as a lodge.
But plaintiffs did not show that keeping the Lodge open and sharing the building with the
contemplated treatment facility was a realistic objective. The uncontradicted evidence is that
BHC is unwilling to continue to operate a lodge at Cordillera. It has spent the last several years
and substantial funds trying to increase the profitability of the Lodge, without success. It was
unable to find a buyer of the Lodge who would maintain it as a lodge. Indeed, it found only one
buyer, and at that, it was a buyer who paid only a fraction of what BHC had invested in the
property. CCG is unequivocally unwilling to maintain the Lodge as a public lodge in whole or in
Accordingly, the Court finds that plaintiffs did not show, much less make a strong
showing, that they would suffer irreparable harm if the closing of the purchase contract were not
enjoined. If plaintiffs have any remedy, it is a damages remedy. 4
C. Injury to Other Persons.
CCG agreed to purchase the Lodge parcel in April 2016. Nordheimer Affidavit, ECF No.
48-4, at ¶16. As indicated above, in July 2016 Eagle County’s Community Development
Director issued his “letter of interpretation” in which he determined that the proposed use of the
Lodge Parcel was consistent with the PUD. This was formally affirmed by the Board’s
resolution of October 11, 2016.
According to Ms. Ross, “[i]f the Pending Sale is enjoined, it is likely to force BHC into
bankruptcy, a loan default, or insolvency.” ECF No. 48-3 at ¶11. According to Mr. Nordheimer,
CCG is now nine months into a 21-month development schedule. During that time CCG has
incurred substantial expense to complete full architectural design and construction drawings and
to prepare and submit applications for a building permit and Colorado state licenses. It has made
job offers to 16 individuals, 10 of which have been accepted by people, at least some of whom
are relocating to Colorado. Mr. Nordheimer states that if CCG cannot close on the purchase
contract, its ability to close on its financing for the project and the entire development plan will
be put in jeopardy. ECF No 48-4 at ¶¶4-8.
Although damages are not before me now, plaintiffs should be aware of another potential hurdle that
could affect their damages claim. To establish fraud under Colorado law, a plaintiff generally must prove
that he or she justifiably relied on the misrepresentation. See, e.g., M.D.C./Wood, Inc. v. Mortimer, 866
P.2d 1380, 1382 (Colo. 1994). That is also an element of a promissory estoppel claim. See, e.g., Kiely v.
St. Germain, 670 P.2d 764, 767 (Colo. 1983).
I am not convinced that all the dire calamities described by Ms. Ross and Mr.
Nordheimer and Ms. Ross would befall their respective companies if the closing of the purchase
contract were postponed 60 days. A large project like this gains momentum, and I expect that
these corporate entities would find a way to keep the project alive while the plaintiffs were
taking a few depositions and trying to shore up their legal position. Nevertheless, it is reasonable
to assume that a 60-day stay of the closing of the purchase agreement would cause some expense
to both sets of defendants. Plaintiffs provided no evidence to the contrary.
On balance, I find that while the likelihood of harm to the defendants if the closing were
postponed is probably not great, plaintiffs did not show that harm to them would outweigh such
D. Public Interest.
Mr. Nordheimer, in his affidavit and his testimony, emphasized the need for more
addiction treatment facilities throughout the nation, including in Colorado. See, e.g., ECF No.
48-4 at ¶13-14. Plaintiffs did not attempt to dispute these representations, and I will assume for
present purposes that the need is there. There was no evidence, however, that the need for a
luxury center in Eagle County, Colorado is so urgent that a 60-day delay would significantly
adversely affect the interest of potential clients or the public in general. I find that this is not a
significant factor in the evaluation of the motion for a preliminary injunction. The decision is
driven by the other factors discussed above.
DATED this day 2nd day of March, 2017.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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