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HomeMy WebLinkAbout1.0 Court DecreeDistrict Court, Garfield County, Colorado Court Address: 109 8th Street Glenwood Springs, CO 81601 (970) 945-5075 ACOURT USE ONLYA Plaintiff: v. Defendants: POWERLINE PROFESSIONAL PARK PROPERTY OWNERS ASSOCIATION, INC. WESTERN SLOPE DEVELOPMENT AND CONSTRUCTION CORP., HIGH COUNTRY, ENGINEERING, INC., TRACY LEE ANTHONY d/b/a TRAY TRUCKING, POWERLINE PROFESSIONAL PARK WASTEWATER SYSTEM, LLC, and BOARD OF COUNTY COMMISSIONERS,. GARFIELD COUNTY, COLORADO Case No. 09CV273 Div.: C Ctm: Name: Address: Email: Phone: Fax: Atty. Reg. Cassie L. Coleman 108 8th Street, Suite 219 Glenwood Springs, CO 81601 ccoleman@garfield-county.com (970) 945-9150 (970) 384-5005 37370 MOTION TO DISMISS COMES NOW Defendant, Board of County Commissioners of Garfield County, Colorado (BOCC), through the Garfield County Attorney's Office, and moves this Court to dismiss the BOCC as a defendant in this matter, pursuant to C.R.C.P. 12(b)(5), and in support thereof, states as follows: I. Background. Plaintiff, P erline Professional Park POA (Powerline), alleges there have been linfrastructure failures in its commercial subdivision, Powerline Professional Park. The sole claim against the BOCC is for breach of contract, apparently for the BOCC's failure to independently inspect the completed improvements in the subdivision. Powerline erroneously reads this affirmative duty into the terms of the Subdivision Improvement Agreement (SIA) the BOCC entered into with Western Slope Development and Construction Corp. The BOCC does not have any duty to enforce the terms of an SIA, and, at the time the SIA was terminated, none of the alleged defects were known by the BOCC. Because the BOCC does not have a contractual duty to enforce the SIA years after the SIA terminated and has the express right to rely on the professional engineer's representations regarding adequate improvement completion in compliance with the SIA, Powerline has not pled claim against the BOCC for which relief can be granted. Therefore, the Complaint against the BOCC should be dismissed with prejudice. II. Facts. About ten years ago, Western Slope Development sought to develop a commercial subdivision near Rifle, Colorado, in unincorporated Garfield County. Garfield County's land use regulations, adopted pursuant to C.R.S. § 30-28-101, et seq., and specifically C.R.S. § 30-28- 137, required Western Slope to follow Garfield County's process for this division of land. On September 17, 2001, the BOCC approved the Final Plat of the subdivision and entered into the SIA with Western Slope. (See Compl. ¶ 42.) The SIA required the posting of a security, which the BOCC released, pursuant with the terms of the SIA. (See Compl. ¶ 98). There were two extensions of the SIA, on January 14, 2002 and May 19, 2003, both of which continued to require a letter of credit and ultimate completion by November 1, 2003. (See Compl. ¶ 12.) On November 4, 2004, pursuant to mandatory requirements of the SIA, High Country Engineering, Inc. issued a report to Garfield County, representing that the subdivision improvements had been completed to the intent of the SIA, approved construction documents and Garfield County regulations. (See Compl. in 14, 49, 50.) Based upon the representations of the licensed professional engineer, the BOCC released the security and approved the Amended Final Plat at a public hearing on September 6, 2005. (See Compl. 1153.) Since that date, the SIA has not been in effect. The earliest infrastructure failure Powerline alleges occurred more than two years later, allegedly in November 2007. (See Compl. ¶¶ 55-56.) Powerline alleges that the BOCC owed a duty under the SIA to independently inspect improvements to ensure that they were done in accordance with the SIA. (See Compl. ¶ 95.) This position is contrary to Colorado law and the express terms of the SIA. III. Powerline's Complaint against the BOCC should be dismissed because the County has no duty to enforce the terms of the SIA, and Powerline lacks standing to bring this claim. "A trial court may properly grant dismissal when the plaintiffs complaint fails to state a claim upon which relief can be granted." Bristol Co., LP v. Osman, 190 P.3d 752, 755 (Colo. App. 2007), citing BRW, Inc. v. Duff cy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004). A motion to dismiss must be determined based only on the issues alleged in the Complaint, the material allegations of which must be assumed to be true. Bristol, 190 P.3d 752. A complaint is properly dismissed where the allegations are overly vague and insubstantial. Id. Here, for Powerline to establish its breach of contract claim against the BOCC, Powerline must prove: 1) existence of a contract; 2) performance or excuse for nonperformance by the Plaintiff; 3) failure to perform by the BOCC; and 4) damages to the Plaintiff. West. Distrib, Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992). Powerline cannot establish the BOCC failed to perform any portion of the SIA. The BOCC had the authority and right to independently inspect the improvements and to withhold the financial security if necessary, but did not have a contractual, or other, obligation to do so. The BOCC had the option to reply upon the representations of professional engineers, which option it exercised in the case of the Western Slope SIA. C.R.S. § 30-28-137(4) expressly negates any duty of the BOCC to enforce any provisions of an SIA. In addition, C.R.S. § 30-28-137 expressly dictates those parties who have standing to bring claims for enforcement of an SIA and a property owners association is not one of those parties. A. The BOCC has no obligation to enforce provisions of the SIA. The subdivision development process is described in C.R.S. § 30-28-137, which states: (1) No final plat shall be recorded until the subdivider has submitted and the board of county commissioners has approved one or a combination of the following: (a) A subdivision improvements agreement agreeing to construct any required public improvements shown in the final plat documents, together with collateral which is sufficient, in the judgment of said board, to make reasonable provision for the completion of said improvements in accordance with design and time specifications; or (b) Other agreements or contracts setting forth the plan, method, and parties responsible for the construction of any required public improvements shown in the final plat documents which, in the judgment of said board, will make reasonable provision for completion of said improvements in accordance with design and time specifications. (2) As improvements are completed, the subdivider may apply to the board of county commissioners for a release of part or all of the collateral deposited with said board. Upon inspection and approval, the board shall release said collateral. If the board determines that any of such improvements are not constructed in substantial compliance with specifications, it shall furnish the subdivider a list of specific deficiencies and shall be entitled to withhold collateral sufficient to ensure such substantial compliance. If the board of county commissioners determines that the subdivider will not construct any or all of the improvements in accordance with all of the specifications, the board of county commissioners may withdraw and employ from the deposit of collateral such funds as may be necessary to construct the improvement in accordance with the specifications. (3) The board of county commissioners or any purchaser of any lot, lots, tract, or tracts of land subject to a plat restriction which is the security portion of a subdivision improvements agreement shall have the authority to bring an action in any district court to compel the enforcement of any subdivision improvements agreement on the sale, conveyance, or transfer of any such lot, lots, tract, or tracts of land or of any other provision of this part 1. Such authority shall include the right to compel rescission of any sale, conveyance, or transfer of title of any lot, lots, tract, or tracts of land contrary to the provisions of any such restriction set forth on the plat or in any separate recorded instrument, but any such action shall be commenced prior to the issuance of a building permit by any county where so required or otherwise prior to commencement of construction on any such lot, lots, tract, or tracts of land. (4) In addition to any other remedy set forth in this part 1, the board of county commissioners, or any purchaser of any lot, lots, tract, or tracts of land in a recorded plat, shall have the authority to bring an action for injunctive relief to enforce any plat restriction, plat note, plat map, or provision of a subdivision improvements agreement and for damages arising out of failure to adhere to any such plat restriction, plat note, plat map, or provision of a subdivision improvements agreement. Nothing in this part 1 shall require the board of county commissioners to bring any action referred to in this subsection (4). In a case factually similar to that at bar, Langlois v. Bd. of County Comm'rs of the County of El Paso, 78 P.3d 1154 (Colo. App. 2003), the Court of Appeals affirmed a directed verdict dismissing the board of county commissioners. The Court specifically held that the SIA "gave the Board the right to withhold the collateral, but did not impose any duty to do so." Id. at 1157. Therefore, the plaintiff in that case failed to establish a breach of contract by the board, and a directed verdict on that issue was affirmed by the appellate court. Id. Similarly, here the statutory language expressly provides a board of county commissioners has no obligation to enforce terms of an SIA. C.R.S. § 30-28-137. The BOCC's option to enforce the terms of the SIA is purely discretionary. B. Powerline Lacks Standing To Enforce The Provisions of The SIA. Further, Powerline lacks standing to bring this claim as C.R.S. § 30-28-137(4) provides that a "purchaser of any lot, lots, tract, or tracts of land in a recorded plat" has standing to enforce the terms of an SIA. Nowhere in this statute does it contemplate the enforcement of terms of an SIA by a POA. IV. The BOCC is entitled to recover its reasonable attorney fees and costs attendant to responding to Powerline's frivolous and groundless claim against the BOCC. Pursuant to C.R.S. § 13-17-101, et. seq. (2008), attorney fees may be awarded if the action brought is substantially frivolous, substantially groundless, or substantially vexatious. "Substantially frivolous" has been defined as a claim for which there is no rational argument based on the evidence or the law to support it. Double Oak Const., L.L.C. v. Cornerstone Dev. Int'l, LLC, 97 P.3d 140 (Colo. App. 2003). In Ranta Constr., Inc. v. Anderson, 190 P.3d 835 (Colo. App. 2008), the Court defined "substantially groundless" as allegations not supported by any credible evidence, even if the allegations are sufficient to survive a motion to dismiss. Id., citing W United Realty, Inc. v. Isaacs, 679 P.2d 1063, 1069 (Colo. 1984). There is no rational argument based upon Colorado law supporting Powerline's claim against the BOCC. Prior to serving the Complaint upon the BOCC, Powerline's counsel conferred with counsel for the BOCC regarding the Complaint. The BOCC's counsel stated the BOCC would not voluntarily join as a plaintiff and did not think there was a legal basis for a breach of contract claim against the BOCC. Counsel for the BOCC specifically referred to the Langlois case. Despite this discussion, and the case law and statutes directly on point, Powerline has pursued its frivolous and groundless claim against the BOCC, forcing the BOCC to unnecessarily incur costs and attorney fees in responding to the Complaint. The BOCC is entitled to recover these costs and fees from Powerline, pursuant to C.R.S. § 13-17-101, et. seq. V. Conclusion. Powerline cannot establish the BOCC had an affirmative duty to independently inspect the infrastructure and improvements and withhold the financial security. The BOCC certainly does not continue to have such a duty now, years after completion of the subdivision and termination of the SIA. Therefore, Powerline's Complaint, as to the BOCC, fails to state the elements necessary to maintain a breach of contract claim against the BOCC, and the Complaint against the BOCC should be dismissed with prejudice. The BOCC is entitled to recover its fees and costs attendant with this motion, because the claim against the BOCC is substantially frivolous and substantially groundless. Pursuant to C.R.C.P. 121, § 1-15, the undersigned did not confer with opposing counsel prior to filing this motion as such conferral would be futile. As stated in the Committee Comments to Rule 121, § 1-15, such conferral is not appropriate prior to filing a motion to dismiss. DATED this 13t day of August, 2009. Respectfully submitted, Cassie L. Coleman, #37370 Assistant Garfield County Attorney CERTIFICATE OF SERVICE I certify that on August 13, 2009, this Motion to Dismiss was filed with the Court and true and accurate copies of served via LexisNexis as follows: David H. McConaughy, Esq. Daniel D. Reynolds, Esq. Garfield & Hecht, P.C. 420 Seventh Street, Suite 100 Glenwood Springs, CO 81601 Canetyn etFtt-L1� District Court, Garfield County, Colorado Court Address: 109 8th Street Glenwood Springs, CO 81601 (970) 945-5075 ACOURT USE ONLYAL Plaintiff: v. Defendants: POWERLINE PROFESSIONAL PARK PROPERTY OWNERS ASSOCIATION, INC. WESTERN SLOPE DEVELOPMENT AND CONSTRUCTION CORP., HIGH COUNTRY, ENGINEERING, INC., TRACY LEE ANTHONY d/b/a TRAY TRUCKING, POWERLINE PROFESSIONAL PARK WASTEWATER SYSTEM, LLC, and BOARD OF COUNTY COMMISSIONERS, GARFIELD COUNTY, COLORADO Case No. 09CV273 Div.: C Ctm: Name: Address: Email: Phone: Fax: Atty. Reg. Cassie L. Coleman 108 8th Street, Suite 219 Glenwood Springs, CO 81601 ccoleman@,garfield-county.com (970) 945-9150 (970) 384-5005 37370 ORDER GRANTING DISMISSAL OF BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO THIS MATTER comes before the Court upon Defendant Board of County Commissioners of Garfield County, Colorado's Motion to Dismiss. The Court, having reviewed the motion and the Court's file and being otherwise advised in the premises, does ORDER that the claim against the Board of County Commissioners of Garfield County, Colorado is hereby dismissed with prejudice. DONE AND ORDERED this day of , 2009. BY THE COURT: Gail H. Nichols, District Court Judge DISTRICT COURT, GARFIELD COUNTY, COLORADO Court Address: 109 Eighth Street Glenwood Springs, CO 81601 (970) 945-5075 A FOR COURT USE ONLY • Plaintiff: POWERLINE PROFESSIONAL PARK PROPERTY OWNERS ASSOCIATION, INC. v. Defendant: HIGH COUNTRY ENGINEERING, INC. Case Number: 11 CV337 Div.: Ctrm.: This case is NOT subject to the simplified procedures for court action under Rule 16.1 because claims against another party exceed $100,000 [see C.R.C.P. 16.1(b)(2)]. Attorneys for Plaintiff: David H. McConaughy, # 26165 Daniel D. Reynolds, # 36976 Garfield & Hecht, P.C. 420 Seventh Street, Suite 100 Glenwood Springs, CO 81601 Telephone: (970) 947-1936 Facsimile: (970) 947-1937 E-mail:dmcconaughy@garfieldhecht.com E-mail: dreynolds@garfieldhecht.com DEPOSITION SUBPOENA AND DEPOSITION SUBPOENA DUCES TECUM OF FRED JARMAN AS A REPRESENTATIVE OF THE GARFIELD COUNTY PLANNING DEPARTMENT TO: Fred Jarman, Director Garfield County Building and Planning Department 108 8th Street, Suite 401 Glenwood Springs, CO 81601 You are hereby ordered to attend, and give testimony in your capacity as a representative of the Garfield County Building Planning Department and to bring with you all documents, records, correspondence or other information in your possession, custody, or control relating to the Powerline Professional Park, PUD, Rifle, Colorado (the "Property"). The Powerline Professional Park POA v. High Country Engineering Garfield County District Court, Case No. 11CV337 DEPOSITION SUBPOENA AND DEPOSITION SUBPOENA DUCES TECUM OF FRED JARMAN AS A REPRESENTATIVE OF THE GARFIELD COUNTY PLANNING DEPARTMENT Page 2 of 2 deposition will take place at the offices of Garfield & Hecht, P.C., 420 Seventh Street, Suite 100, on September 7, 2012 at 9:00 a.m. Such documents, records, correspondence or other information or tangible things produced shall be produced as they are kept in the usual course of business. All rights are reserved for a future deposition on authentication of the items produced by you pursuant to this Deposition Subpoena Duces Tecum, to the extent the parties cannot stipulate to same. The deposition shall continue for up to one day of seven hours unless additional time for the deposition is stipulated to by the parties or otherwise authorized by the court. The deposition shall be on oral examination, before a certified shorthand reporter pursuant to the Colorado Rules of Civil Procedure. This deposition will be taken by stenographic means. Dated this 22nd day of August, 2012. Respectfully submitted, GARFIELD & HECHT, P.C. David H. McConaughy, #25165 Daniel D. Reynolds, # 36976 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this 22nd day of August, 2012, a true and correct copy of the foregoing DEPOSITION SUBPOENA AND DEPOSITION SUBPOENA DUCES TECUM OF FRED JARMAN AS A REPRESENTATIVE OF THE GARFIELD COUNTY PLANNING DEPARTMENT served via LEXISNEXIS FILE AND SERVE to the following: Ryan J. Winter Christopher Bryan HALL & EVANS, L.L.C. 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202 Cassandra Coleman, Esq. Assistant Garfield County Attorney 108 Eighth Street, Suite 219 Glenwood Springs, CO 81601 ccoleman@garfield-county.com Kathy Thissen 863940