August 26, 2019

Archives for May 11, 2015

Frederick Skillern: Real Estate Case Law — Zoning and Land Use Control (2)

Editor’s note: This is Part 23 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

By Frederick B. Skillernfrederick-b-skillern

Marin Metropolitan District v. Landmark Towers Assn., Inc.
Colorado Court of Appeals, March 27, 2014
2014 COA 40

Special Metropolitan District—CRS § 32-1-305(7).

In 2007, a developer and five affiliated individuals (organizers) commenced proceedings under C.R.S. §§ 32-1-101, et seq., to form a special metropolitan district within the boundaries of Greenwood Village. The organizers filed a service plan with the municipality, and the city council approved it.

On September 5, 2007, a petition for organization was filed with the Arapahoe County District Court pursuant to C.R.S. § 32-1-301, and a hearing was set for October 4, 2007. Notice was published in the local newspaper and the clerk of the court issued a notice of the hearing. At the hearing, the district court entered an order directing an organizational election be held on November 6, 2007. The election was held, and on December 6, 2007, the district court entered findings and an order and decree creating the special district. The order included within the special district the Landmark Towers condominiums, which were under construction. Approximately 130 people were under contract to purchase, but no sales had been completed.

The Landmark homeowners association alleged it was not until several years after the Marin Metropolitan District (District) was formed that the owners discovered facts indicating that the District had been organized through alleged misrepresentations and a “fraud on the court.” In 2012, Landmark intervened in the annexation case and moved pursuant to C.R.C.P. 60(b)(2), (3), and (5) to set aside the December 2007 order for alleged fraud on the court, a lack of subject matter jurisdiction to approve the special district, and invalidity of the order due to lack of due process. The court held a three-day evidentiary hearing and issued an order on December 17, 2012, dismissing Landmark’s motion pursuant to C.R.S. § a32-1-305(7).

The court of appeals reviews the pertinent provisions of the statutory scheme for creating a special district. Landmark argues that regardless of subsection (7), a court has inherent power to vacate a void judgment, notwithstanding a statutory time bar; has jurisdiction to set aside a previously entered order based on fraud on the court; and has a duty to provide constitutional due process, providing jurisdiction to set aside an order that is void for lack of notice and an opportunity to be heard. The Court disagrees.

C.R.S. § 32-1-305(7) states that once an order establishing a special district is entered, it “shall be deemed final, and no appeal or other remedy shall lie therefrom.” There is only one exception, which allows for an action in the nature of quo warranto commenced by the attorney general within thirty days after entry of the organizational order. Finally, the subsection mandates that the organization of the district “shall not be directly or collaterally questioned in any suit, action, or proceeding except as expressly authorized in this subsection (7).” The jurisdictional issue is dispositive. The order is affirmed.


Board of County Commissioners of Summit County v. Hazel

Petition for Writ of Certiorari GRANTED, January 27, 2014.

Summary of the Issue:

  • Whether the court of appeals erred by holding that under C.R.C.P. 50, a trial court cannot direct a verdict as to some but not all issues within a single claim against a single defendant.
Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Supreme Court: Announcement Sheet, 5/11/2015

On Monday, May 11, 2015, the Colorado Supreme Court issued two opinions.

Beren v. Beren

East Cherry Creek Valley Water & Sanitation District v. Wolfe

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Appeal Not Properly Before Supreme Court Because No Issues Finally Decided by Trial Court

The Colorado Supreme Court issued its opinion in East Cherry Creek Valley Water & Sanitation District v. Wolfe on Monday, May 11, 2015.

CRCP 54(b)—Final Judgment of a Claim—Dismissal of Appeal for Lack of Jurisdiction—Prayer for Relief in a Change of Water Right Application Case.

The Supreme Court held that this appeal was not properly before it under CRCP 54(b) because the trial court did not enter final judgment on any claim for relief in this litigation. Here, East Cherry Creek Valley’s application pleaded one claim for relief: that the water court issue a change decree granting its change of water right application from irrigation use to domestic, municipal, augmentation, and exchange uses in connection with the 5.472 Greely Irrigation Company shares it owns. Accordingly, the Court reversed the water court’s certification order, dismissed the appeal, and returned the case for further proceedings consistent with this opinion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/11/2015

On Monday, May 11, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Wallace v. Addison

United States v. DeWilliams

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.