Brinkerhoff v. Thurber

Colorado Court of Appeals

Brinkerhoff v. Thurber

Colorado Court of Appeals·Decided August 7, 2025·No. 23CA1373·Unpublished

Opinion

23CA1373 Brinkerhoff v Thurber 08-07-2025 COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1373 Douglas County District Court No. 16CV30253 Honorable Andrew C. Baum, Judge

William Brinkerhoff and Renee Brinkerhoff, Plaintiffs-Appellees, v. Mark Thurber and Robyne Thurber, Defendants-Appellants, and Jeffrey C. Keiffer, Attorney-Appellant, v. Jefferson Park Development, LLC, Third-Party Defendant-Appellee.

ORDERS REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division B

Opinion by JUDGE GOMEZ

Fox and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 7, 2025

The Overton Law Firm, Thomas J. Overton, Steven R. Schumacher, Golden, Colorado, for Plaintiffs-Appellees

Spencer Fane LLP, Troy R. Rackham, Denver, Colorado, for Defendants- Appellants and Attorney-Appellant

Dill Dill Carr Stonbraker & Hutchings, PC, Patrick D. Tooley, Denver, Colorado, for Third-Party Defendant-Appellee

¶1 Defendants, Mark and Robyne Thurber, and their attorney, Jeffrey C. Keiffer, appeal the trial court’s orders directing them to pay more than $850,000 in sanctions to plaintiffs, William and Renee Brinkerhoff, and third-party defendant, Jefferson Park Development, LLC (JPD). The Thurbers and Mr. Keiffer contend that the trial court erred by imposing such sanctions without (1) identifying the legal basis for sanctions, (2) making sufficient factual findings, or (3) conducting a hearing. We agree with the first two contentions and decline to address the third. Accordingly, we reverse the sanctions orders and remand the case with directions.

I. Background

¶2 The Brinkerhoffs and the Thurbers own adjacent parcels of property in a rural part of Douglas County. Since the Brinkerhoffs purchased their parcel in 1994, they have used an easement that passes over the Thurbers’ land, known as the Main Drive Easement, as a driveway to access their property from the public road. The Brinkerhoffs and the Thurbers have long disputed issues relating to the use and maintenance of the Main Drive and have been engaged in litigation over those issues (as well as issues relating to other claimed easements) since 2011.

¶3 In 2014, the parties reached a settlement agreement in the hopes of putting their disputes to rest. Under that agreement, the Brinkerhoffs would abandon the Main Drive Easement in favor of a new easement, called the Northern Drive Easement, which would pass through a different part of the Thurbers’ property, as well as through part of a neighboring parcel owned by Craig and Mary Ewing.1 (The existing Main Drive also went through a part of the Ewings’ parcel.)

¶4 Because the Northern Drive Easement was to pass over their land, the Ewings’ cooperation was a necessary condition to effectuate the settlement agreement. Although it wasn’t required by the settlement agreement, Mr. Ewing insisted that the documents creating the Northern Drive Easement and those abandoning the Main Drive Easement be executed simultaneously. The Ewings formalized a document to create the Northern Drive Easement, and the parties prepared documents for the abandonment of the Main Drive Easement. But the Ewings’ easement document was never

1 The Ewings’ property was in fact owned by the couple’s retirement accounts. But for simplicity’s sake, we refer to them as the owners.

delivered, the abandonment documents were never executed, and the Northern Drive was never constructed.

¶5 By October 2015, the Ewings were divorced and had agreed to partition their property into three separate parcels. They divided up the parcels on the northern and southern ends and planned to sell the middle parcel, where the Northern Drive was proposed to be.

¶6 In 2016, the Brinkerhoffs filed the underlying case seeking a declaratory judgment that the settlement agreement was no longer viable or enforceable. The Thurbers responded with various counterclaims.

¶7 While this case was pending, JPD, a limited liability company wholly owned by the Brinkerhoffs, purchased the Ewings’ middle parcel.

¶8 In 2017, the trial court held a bench trial on the initial issue of the viability of the settlement agreement. The court entered an order in 2018 finding that the settlement agreement was salvageable and that the condition requiring the Ewings’ cooperation was moot due to JPD’s purchase of the middle parcel.

¶9 The Thurbers later filed third-party claims against JPD. The Thurbers sought a declaration that they were entitled to enforce the

settlement agreement and that both the Brinkerhoff parcel and the middle parcel JPD had purchased from the Ewings were burdened by the Northern Drive Easement.

¶ 10 In mid-2020, JPD served Ms. Ewing with a subpoena to produce documents. Among the responsive documents Ms. Ewing produced were some emails she received from Ms. Thurber and Mr. Keiffer in February 2016, before JPD purchased the middle Ewing parcel. In one email, Ms. Thurber informed Ms. Ewing that Mr. Ewing had said he considered the deal establishing the Northern Drive Easement to be “dead.” In another, Mr. Keiffer emailed the Ewings, copying Ms. Thurber, in an effort to confirm that Mr. Ewing had declared that “the Northern [Drive] [E]asement deal [wa]s dead” and to convince the Ewings to reconsider.

¶ 11 Despite their apparent relevance to the issue of whether the middle Ewing parcel was burdened by the Northern Drive Easement when JPD purchased it and thus whether the settlement agreement remained enforceable, the Thurbers didn’t produce these emails in discovery before the 2017 trial. In fact, the Thurbers had produced the underlying emails but had redacted those particular parts. And instead of redacting those parts in a way that would’ve made the

redactions obvious, they made the redactions in white. A digital forensics service determined that the emails had been deleted from Ms. Thurber’s computer.

¶ 12 The trial court went on to conduct a second trial in 2022 on the parties’ various claims. Before and at trial, the Brinkerhoffs and JPD sought evidentiary sanctions against the Thurbers for their failure to disclose the emails and for other alleged discovery violations. The court declined to order such sanctions. However, it suggested that monetary sanctions would likely be appropriate, without explaining the precise legal basis for such sanctions, and instructed the Brinkerhoffs and JPD to file lists after the trial of the specific amounts of time they believed they had wasted due to the nondisclosure of the emails.

¶ 13 In its post-trial order, the court found that the Thurbers, “perhaps with either the assistance or negligence of their attorney,” Mr. Keiffer, “intentionally kept” the emails “from the Brinkerhoffs and the [c]ourt in connection with the 2017 trial.” The court similarly found that the Thurbers, potentially with Mr. Keiffer’s assistance, had also intentionally withheld logs Ms. Thurber had kept for years detailing activities relating to the Main Drive. (Those

logs were also first disclosed shortly before the second trial.) The court determined that it was “impossible to know . . . what the [c]ourt might have done differently in 2017 had there been complete disclosure,” but regardless, “[t]hese non-disclosures caused a tremendous waste of [c]ourt resources and interfered with the natural progression of the history related to” the properties and the litigation. Ultimately, the court found, in contrast to its finding after the 2017 trial, that while “determining the exact date [was] non-productive[,] [t]he totality of the circumstances” established that the settlement agreement had failed before JPD purchased the middle Ewing parcel.

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