FILED United States Court of Appeals Tenth Circuit
November 29, 2012 UNITED STATES COURT OF APPEALSElisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
RICHARD CHANCE LEOFF,
Plaintiff - Appellee/ Nos. 11-1293, 11-1311 Cross-Appellant, v. (D. Colorado) S AND J LAND COMPANY, a (D.C. No. 1:08-CV-02112-RPM-MEH) Colorado limited liability company,
Defendant - Appellant/ Cross-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, HARTZ, and HOLMES, Circuit Judges.
Richard “Chance” Leoff and S and J Land Company (S&J) went into
business together to build condominiums in Telluride, Colorado. When the
project faltered and the relationship soured, Leoff filed a mechanic’s lien against
the property and sued in federal district court for damages and to enforce the lien.
S&J responded with a counterclaim seeking damages for wrongful filing of a
mechanic’s lien and breach of contract, a declaration that S&J and Leoff had
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. formed a partnership, and a winding up of the partnership and an accounting of
the partners’ rights and obligations. The district court granted partial summary
judgment to S&J, holding that the parties had formed a partnership and that under
Colorado law a partner cannot place a mechanic’s lien on partnership property.
Leoff filed an amended complaint asserting fraud and breach of fiduciary duty,
and he also filed with the court and recorded with the county clerk a notice of lis
pendens. S&J filed an amended counterclaim, adding a claim for damages from
the allegedly improper filing of the notice of lis pendens.
After a bench trial on the remaining claims and counterclaims, the court
decreed the partnership to be dissolved and ordered the sale of the condominium
development. It refused, however, to conduct a final accounting of the partners’
respective rights and liabilities. And although it held that Leoff’s mechanic’s lien
and notice of lis pendens had been wrongfully filed, it also refused to award S&J
actual damages or attorney fees resulting from those filings, instead awarding
only a minimum statutory penalty of $1,000. Both parties appealed. Although we
affirm on most of the issues, we reverse and remand for the district court to
conduct a final partnership accounting and to permit S&J to present evidence of
the attorney fees incurred as a result of Leoff’s wrongful mechanic’s lien.
I. BACKGROUND
In 2004 three men agreed to develop a condominium project on a piece of
land in Telluride, Colorado. Two of them, Stephen Finger and Jeffrey Lehrer,
-2- were the only members of S&J, a Colorado limited-liability company. Finger was
a Telluride resident with some experience in developing local real estate; Lehrer
lived in Scottsdale, Arizona, but had worked with Finger on two earlier local
projects. The third man was Leoff, who then lived in Telluride and who knew
Finger and Lehrer socially. They referred to the proposed condominiums as the
White House Project. S&J paid for the land, and the title was in S&J’s name.
Although at first Leoff and S&J did not formally delineate the division of
responsibilities for the White House Project, both parties now agree that Leoff
was at least in charge of obtaining certain government approvals necessary to
begin construction. Leoff apparently maintains that his duties were limited to this
task, whereas S&J claims that Leoff was expected to supervise construction as
well. Leoff did obtain a building permit sometime in 2006.
Leoff and S&J finally memorialized their arrangement in a document titled
“Management Agreement,” which was executed on March 14, 2006. R., Vol. IX
Ex. A-2 at 1. It recited the parties’ prior understanding that “Chance Leoff would
manage the project from time of land acquisition to the sale and completion of all
units.” Id. It said that Leoff’s specific duties as Manager included the following:
(1) To manage and oversee the acquisition of the property, the design of development property improvements, including hiring and management of all architects, engineers, and other consultants, to secure a general contractor, and to manage the entitlement and approval process through all required municipalities.
-3- (2) To execute and deliver required permits, licenses, agreements, contracts, leases, documents and other instruments appropriate in furthering the acquisition, development, design, construction, management and completion of the development property improvements in accordance with the plans, specifications and budgets approved by the members.
(3) To manage and oversee the construction and development of development property improvements on the development property.
Id. The Agreement then declared that the parties agreed “that Duty 1, as specified
above, has been completed and that Leoff is entitled to 30% of all profits or
losses of S&J, as defined in III-R of the Operating Agreement of S&J, and to be
distributed as per Section 6 in the same agreement.” Id. S&J’s “Development
Agreement and Operating Agreement,” also executed on March 14, described
S&J’s governance; Leoff was not a signatory. Id. Ex. A-1 at 1–18. The
Management Agreement also specified that Leoff would be entitled to receive
$100,000 before construction was completed; half of that amount was designated
as a fee, and the other half would count as an advance on Leoff’s share of S&J’s
profits. Because $10,000 of the $100,000 had already been paid in 2005, the
remaining $90,000 was to be paid in monthly installments of $9,000 for each of
the ten months after the bank loan for the White House Project became funded.
The White House Project was a troubled one. In July 2006 S&J signed an
agreement with a contractor, High Mark Development, Inc., which would be paid
its costs plus 15% for building the condominiums. According to S&J, the project
-4- ran into a host of snags thereafter, allegedly because Leoff delayed in providing
the contractor with plans, failed to ensure those plans complied with local
building codes, had an uneasy relationship with the architect, and generally
neglected to keep either himself or S&J abreast of the day-to-day details of
construction. Leoff tells a different story. No sooner had he signed the
Management Agreement in March 2006, he claims, than S&J “took control of and
assumed complete responsibility for the White House Project.” Aplee. Br. at 23.
In Leoff’s version, S&J negotiated the construction contract, obtained the
financing, supervised High Mark and reported on progress to the lending bank,
wrote the checks, and marketed the condominiums to potential buyers. Leoff
disclaims any responsibility for overseeing construction, asserts that S&J’s
members never blamed him for problems during construction, and insists that any
difficulties were the fault of High Mark, which was supposed to be supervised not
by him but by Lehrer.
Whatever the explanation, the cost of the project soon overran the budget
as construction continued. S&J was able to negotiate a $200,000 reduction in
High Mark’s fee, but the various purchasers who had entered into preconstruction
contracts to buy condominiums at the White House Project terminated those
contracts.
Leoff says that at about this time he became aware of a threat to his stake
in the White House Project. Finger was a managing member of a different
-5- limited-liability company, XYZ Land Subdivision LLC (XYZ), which owned a
higher-end condominium development in Telluride called Element 52. Local law
required Element 52 either to devote a certain number of its own units to
affordable housing or to purchase offsetting credits by providing affordable
housing elsewhere. Because providing affordable housing onsite would have
denied Element 52 valuable rental income, XYZ approached S&J about buying
the right to place deed restrictions on several units of the White House Project,
thereby earning Element 52 enough credits to satisfy its affordable-housing
requirement. A letter from S&J’s counsel in May 2008 reflected discussions
about such a transaction between S&J and XYZ. According to the letter, XYZ
would pay the owners of the White House Project $2.2 million to convert eight of
the White House condominiums into lower-priced, deed-restricted units, and the
owners of the White House Project would retain the right to sell the deed-
restricted units at their diminished price.
Leoff claims that Finger deceived him by working on this deal behind his
back. He says that the deal with XYZ would have benefitted Finger as a member
of XYZ while diminishing S&J’s profits—and therefore Leoff’s returns—by
appropriating value from the White House Project, S&J’s only asset.
In July 2008 Leoff filed with the clerk of San Miguel County, Colorado, a
$600,000 mechanic’s lien against the White House property. Two months later
Leoff filed a complaint against S&J in the United States District Court for the
-6- District of Colorado. (He had moved to Massachusetts and invoked diversity
jurisdiction.) The complaint asserted that Leoff’s efforts had increased the value
of the White House Project by no less than $800,000. It sought to enforce the
mechanic’s lien and recover damages of at least $800,000. Leoff later filed with
the court a notice of lis pendens asserting an interest in the White House property.
He also filed with the county clerk an amended mechanic’s lien, now claiming
$847,864.21.
S&J counterclaimed against Leoff, requesting the following relief: (1) a
declaration that Leoff and S&J had formed a partnership to develop the White
House Project; (2) a winding up of the partnership’s business and a final
accounting of the partners’ rights and obligations; (3) the invalidation of Leoff’s
mechanic’s lien and damages, including attorney fees, arising from the lien; and
(4) damages for Leoff’s breach of the Management Agreement.
S&J moved for partial summary judgment on Leoff’s claims under the
mechanic’s lien. It argued that the lien was invalid because the White House
Project belonged to a partnership between Leoff and S&J and a partner has no
right to file a mechanic’s lien against partnership property. The district court
granted the motion in June 2009 and gave Leoff permission to file an amended
complaint. Leoff did so, adding three new claims: a claim that S&J had
defrauded him, a claim that S&J had breached its fiduciary duties to Leoff as its
-7- partner, and a claim for injunctive relief to prevent S&J from transferring any
rights associated with the White House property.
About two weeks after filing his amended complaint, Leoff filed with the
court and recorded with the county clerk a new notice of lis pendens, asserting
that his status “as a member of an unnamed partnership” with S&J gave him a
property interest in the White House property. R., Vol. II at 239. S&J moved for
an order to show cause why the notice of lis pendens should not be invalidated. It
contended that the Management Agreement gave Leoff a 30% interest in S&J’s
profits and losses but did not confer on Leoff any ownership interest in the White
House property itself. Rather, S&J insisted, Leoff’s sole recourse was for money
damages, and the lis pendens was an improper cloud on the title that rendered the
White House property unmarketable. S&J said that the lis pendens had prevented
it from selling the property, causing it to suffer damages in the form of forgone
sales proceeds, attorney fees, and added interest expense on the bank loan.
The court denied the motion, deferring it until trial. The court also denied
a later motion by S&J to sell the White House property notwithstanding the lis
pendens.
The district court conducted a three-day bench trial in November 2010,
with closing argument the following month. It entered a Decree of Dissolution
and Order of Sale, which recognized the relationship between Leoff and S&J as a
partnership; decreed that the partnership was dissolved; and instructed S&J to
-8- supervise the winding up of the partnership’s affairs—including selling the
partnership’s only asset, the White House property. S&J sold the property at an
auction on January 28, 2011, at which S&J itself tendered the high bid of
$3,150,000.
After further briefing, the district court filed an opinion ruling: (1) the
Management Agreement had established a partnership between Leoff and S&J for
the White House Project; (2) S&J had dissociated as a partner by acting in a
manner that made it “not reasonably practicable to carry on the business in
partnership,” Colo. Rev. Stat. § 7-64-601(1)(e)(III) (2012), triggering the
partnership’s dissolution under § 7-64-603 of Colorado’s version of the Uniform
Partnership Act; (3) Leoff’s second notice of lis pendens was improper,
subjecting him to statutory liability under Colorado law; (4) S&J had not proved
actual damages arising from Leoff’s improper mechanic’s lien and lis pendens,
but a Colorado statute still provided that S&J could recover from Leoff a penalty
of $1,000 for the lis pendens and S&J would be entitled to attorney fees for
efforts to seek release of both the mechanic’s lien and the lis pendens; and (5)
S&J nevertheless could not recover attorney fees because “release of the lis
pendens was but a minor part of this litigation and not separable from other
issues.” R., Vol. IX at 1688. As for S&J’s request for an accounting and Leoff’s
then having to pay his 30% share of partnership losses (and to refund the $50,000
advance on profits that he had received), the court denied an accounting because
-9- the only partnership asset had already been sold and S&J could not show that the
partnership’s losses “would have occurred regardless of the conduct of the
parties.” R., Vol. IX at 1686. It further ruled that Leoff did not have to repay the
$50,000 advance on profits because the Management Agreement defined Leoff’s
stake as 30% of S&J’s profits or losses, not 30% of the partnership’s profits or
losses, and S&J’s tax returns were not in evidence. The court ordered Leoff to
pay $1,000 to S&J for wrongful filing of the notice of lis pendens, and it
dismissed all other claims and counterclaims with prejudice.
Both parties appealed. S&J raises five arguments: (1) although the district
court was correct in dissolving the partnership between Leoff and S&J and
ordering the sale of the White House property, it erred in failing to order the final
accounting prescribed by Colo. Rev. Stat. § 7-64-807 (2012); (2) having decided
that Leoff’s mechanic’s lien was improperly filed, the court should have awarded
S&J its attorney fees under Colo. Rev. Stat. § 38-22-128 (2012) in addition to
merely discharging the lien; (3) rather than awarding S&J only the statutory
minimum penalty of $1,000 under Colo. Rev. Stat. § 38-35-109(3) (2010) as a
remedy for Leoff’s second notice of lis pendens, the court should have awarded
S&J actual damages; (4) the court erred in denying S&J its attorney fees related
to Leoff’s second notice of lis pendens; and (5) the court erred in failing to hold
that Leoff had breached his partnership obligations to S&J when he impeded the
sale of affordable-housing rights to XYZ and the later sale of the White House
-10- property. Leoff’s cross-appeal raises only one claim: that the court erred in
granting summary judgment to S&J on the mechanic’s lien, because Leoff and
S&J had not formed a partnership.
II. DISCUSSION
We first address Leoff’s cross-appeal and then the issues raised by S&J.
A. Existence of Partnership
Leoff’s initial complaint includes a claim to enforce the mechanic’s lien he
filed against the White House property for improvements resulting from his
efforts. The district court awarded partial summary judgment to S&J on this
claim. It determined that Leoff was a partner of S&J and then applied the rule of
Damrell v. Creagar, 599 P.2d 262, 263–64 (Colo. App. 1979), that a partner
cannot file a mechanic’s lien against partnership property.
In determining that Leoff and S&J had formed a partnership, the district
court followed settled Colorado law. Colorado’s version of the Uniform
Partnership Act defines a partnership as “the association of two or more persons
to carry on as co-owners a business for profit . . . whether or not the persons
intend to form a partnership.” Colo. Rev. Stat. § 7-64-202(1) (2012).
Interpreting nearly identical language in an earlier partnership statute, see id.
§ 7-60-106 (2012) (“A partnership is an association of two or more persons to
carry on, as co-owners, a business for profit . . . .”), the Colorado Supreme Court
explained that “a partnership is a contract, express or implied, between two or
-11- more competent persons to place their money, effects, labor or skill, or some or
all of them, into a business, and to divide the profits and bear the losses in certain
proportions.” Grau v. Mitchell, 397 P.2d 488, 489 (Colo. 1964). As the final
clause of the statutory definition indicates, parties can form a partnership by their
conduct alone, regardless of their actual intentions. See Stratman v. Dietrich, 765
P.2d 603, 605 (Colo. App. 1988); Yoder v. Hooper, 695 P.2d 1182, 1187 (Colo.
App. 1984), aff’d, 737 P.2d 852 (Colo. 1987) (en banc).
The district court concluded that Leoff and S&J were partners because the
2006 Management Agreement provided for the sharing of profits and losses. The
Agreement states that “Leoff is entitled to 30% of all profits or losses of S&J”
and that “[i]f S&J suffered a loss rather than a profit, than [sic] Leoff’s pro-rata
share must be accounted for.” R., Vol. IX Ex. A-2 at 1.
Leoff concedes that a partner cannot file a mechanic’s lien against
partnership property under Colorado law, but he disputes that he actually formed
a partnership with S&J. In reviewing the district court’s decision to the contrary,
we must apply the same standard that the court should have applied in granting
summary judgment. See Camuglia v. City of Albuquerque, 448 F.3d 1214, 1218
(10th Cir. 2006). That is, we must view the record in the light most favorable to
Leoff and ask whether it discloses any genuine issue of material fact with respect
to the existence of a partnership. See id.; Fed. R. Civ. P. 56(c).
-12- Leoff argues that several facts undermine the district court’s ruling. He
points out that the parties never expressly designated each other as partners: the
Agreement was titled “Management Agreement” rather than “Partnership
Agreement,” and it referred to Leoff not as a partner or owner, but as a
“Manager.” And he emphasizes the absence of any correspondence referring to
the relationship as a partnership. But he ignores that a partnership can be created
without any formalities and regardless of the parties’ intentions. See Colo. Rev.
Stat. § 7-64-202(1) (partnership may exist “whether or not the persons intend to
form a partnership”); Grau, 397 P.2d at 489 (partnership is a contract that may be
“express or implied”); Yoder, 695 P.2d at 1187 (“[N]o express agreement is
necessary; rather, a partnership may be formed by the conduct of the parties.”).
Similarly, Leoff’s observation that the “Development Agreement and Operating
Agreement of S & J Land Company, LLC,” R., Vol. IX at 1694, makes no
mention of Leoff is irrelevant. The issue is whether Leoff and S&J became
partners with each other, not whether Leoff was made a partner in S&J.
Leoff also calls attention to a Colorado statutory provision providing
exceptions to the presumption that one who shares in a business’s profits is a
partner of that business. It states: “A person who receives a share of the profits
of a business is presumed to be a partner in the business, unless the profits were
received in payment . . . [f]or services as an independent contractor or of wages
or other compensation to an employee . . . .” Colo. Rev. Stat. § 7-64-202(3)(c).
-13- Leoff argues that his sharing in S&J’s profits constituted wages for his
contracting services and that the statute therefore rules out any presumption of a
partnership. But Leoff was sharing in losses as well as profits. He has presented
no authority that one sharing in both profits and losses can be merely an employee
or independent contractor.
Finally, Leoff advances three arguments on appeal that were not presented
to the district court in the summary-judgment pleadings. First, he claims that
Colo. Rev. Stat. § 7-60-107 (2012) defeats any presumption of a partnership
because it contains language similar to that found in § 7-64-202. See id.
§ 7-60-107(1)(d) (“The receipt by a person of a share of the profits of a business
is prima facie evidence that the person is a partner in the business, but no such
inference shall be drawn if such profits were received in payment . . . [a]s wages
of an employee . . . .”). Second, he contends that he was not a partner in the
White House Project because the Management Agreement gave him a share of
S&J’s profits or losses, not a share of the White House Project’s profits or losses.
And third, noting that S&J, not the White House partnership, held title to the
White House property, he argues that he was not placing a lien on partnership
property. We question the merits of these arguments. In particular, § 7-60-107 is
no more helpful to Leoff than was § 7-64-202; and the White House property
could be owned by the partnership even if titled in the name of a partner, see id.
§ 7-64-302(1)(c) (2012). But we reject the arguments without resolving their
-14- merits because Leoff forfeited them by failing to make them in opposing summary
judgment. See Cummings v. Norton, 393 F.3d 1186, 1190–91 (10th Cir. 2005).
Thus, we deny Leoff’s challenges to the ruling of the district court that
Leoff and S&J formed a partnership under Colorado law. The district court
committed no error in awarding partial summary judgment to S&J.
B. Failure to Conduct Accounting
S&J’s first claim on appeal is that the district court, having properly
decided that Leoff and S&J formed a partnership, improperly refused to grant a
final accounting of the partners’ rights and obligations after the White House
property was sold. S&J says that the court erroneously decided that no further
judicial action was required after the court had arranged for the sale of the
property and determined that neither party could collect against the other for
misconduct. According to S&J, regardless of whether any partnership losses were
caused by misconduct, the partnership between Leoff and S&J still had losses that
must be apportioned between the two parties under Colorado law.
We agree with S&J. If there was no misconduct by any partner, surely the
partnership’s losses would have to be calculated and then divided between the
partners as Colorado’s partnership statute requires. See Colo. Rev. Stat.
§ 7-64-807 (prescribing the settlement of partnership accounts upon the winding
up of the partnership); cf. Tucker v. Ellbogen, 793 P.2d 592, 597 (Colo. App.
1989) (“Generally, a partnership dismantling proceeds through a three-step
-15- process: dissolution, winding up, and termination.”). And if there had been
partner misconduct causing damages, the same calculation and division would be
required but then followed by a further monetary transfer based on the damages.
In both circumstances, the accounting would be conducted independently of the
determination of fault. We see no reason why the failure of either party to prove
damages from the other partner’s misconduct should require the district court
simply to preserve the status quo rather than conduct the statutorily required
accounting.
We note that apparently another reason why the district court refused to
conduct an accounting was that S&J’s tax returns were not in evidence even
though the Management Agreement provided that Leoff would share in 30% of
S&J’s profits or losses based on “the Company’s taxable income or loss for each
Fiscal Year or other period.” R., Vol. IX at 1697 (emphasis added). But at a
hearing on March 31, 2011, about two months before the district court issued its
decision, the court, at the suggestion of Leoff’s counsel, indicated that an
examination of the books and records for an accounting was premature. We think
that S&J could reasonably infer that it would have a later opportunity to present
any documents deemed necessary for an accounting. Leoff does not argue
otherwise on appeal. We therefore reverse the denial of an accounting and
remand for further proceedings on that matter.
C. Attorney Fees—Mechanic’s Lien
-16- S&J argues that the district court erred by not ordering Leoff to pay S&J’s
attorney fees in connection with litigating the mechanic’s lien, as required by
Colo. Rev. Stat. § 38-22-128. The court’s Memorandum Opinion and Order does
not explain why it did not award attorney fees, although it does suggest that they
would be difficult to calculate accurately because the issue was “but a minor part
of this litigation and not separable from the other issues.” Id. at 1688. At trial,
however, the court plainly ruled that the amount of attorney fees would be
determined in proceedings after the trial, see R., Vol. VI at 1067–69, proccedings
that did not occur. We therefore remand with instructions to allow S&J to
attempt to prove the amount of attorney fees under § 38-22-128.
D. Notice of Lis Pendens
S&J’s next two claims are that the district court erred in failing to award
actual damages and attorney fees arising from Leoff’s second notice of lis
pendens, filed in June 2009 after Leoff filed his first amended complaint.
Although the court ruled that the notice of lis pendens was improper and gave rise
to statutory liability under Colo. Rev. Stat. § 38-35-109, it ruled that any actual
damages were too speculative and that attorney fees would be denied because
“release of the lis pendens was but a minor part of this litigation and not
separable from the other issues.” Id. It did, however, award S&J a recovery of
$1,000, the minimum statutory penalty for wrongful filings.
-17- We deny S&J relief because it has not shown that it is entitled to damages
under the Colorado statute. Our review of this issue of Colorado law is de novo.
See United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 633 F.3d 951, 956
(10th Cir. 2011).
Colo. Rev. Stat. § 38-35-109(3) provides, in relevant part:
Any person who offers to have recorded or filed in the office of the county clerk and recorder any document purporting to convey, encumber, create a lien against, or otherwise affect the title to real property, knowing or having a reason to know that such document is forged or groundless, contains a material misstatement or false claim, or is otherwise invalid, shall be liable to the owner of such real property for the sum of not less than one thousand dollars or for actual damages caused thereby, whichever is greater, together with reasonable attorney fees.
(emphasis added). S&J contends that Leoff knew or had reason to know that the
notice of lis pendens was “groundless.”
To assess whether the second notice of lis pendens was groundless, we turn
to the Colorado statutory provision that authorizes a party to file such a
document. The provision says:
After filing any pleading in an action in any court of record of this state or in any district court of the United States within this state wherein relief is claimed affecting the title to real property, any party to such action may record in the office of the county clerk and recorder in the county or counties in which the real property or any portion thereof is situated a notice of lis pendens containing the name of the court where such action is pending, the names of the parties to such action at the time of such recording, and a legal description of the real property.
-18- Id. § 38-35-110(1) (2012) (emphasis added). “[T]he only prerequisite imposed on
the action to which the notice of lis pendens pertains is that it be one affecting
title to real property.” Kerns v. Kerns, 53 P.3d 1157, 1161 (Colo. 2002) (internal
quotation marks omitted).
The Colorado Supreme Court has interpreted the statute to effectuate its
purpose, stating:
The policy that successful completion of a suit involving rights in real property should not be thwarted by permitting transfers of interests in real property to persons not bound by the outcome of the suit continues in its full vigor. This policy would be furthered by giving an expansive interpretation to the language “affecting the title to real property” . . . .
Hammersley v. District Court, 610 P.2d 94, 96 (Colo. 1980) (en banc) (emphasis
added). Although an action advancing claims solely for money damages “does
not affect title to real property and thus would not support the filing of a lis
pendens,” Brossia v. Rick Constr., L.T.D. Liab. Co., 81 P.3d 1126, 1129 (Colo.
App. 2003), notices of lis pendens are appropriate in connection with a variety of
claims, such as a claim to impose a constructive trust, see Kerns, 53 P.3d at 1160,
a claim for specific performance of a property-sale contract, see Platt v.
Aspenwood Condo. Ass’n Inc., 214 P.3d 1060, 1068 (Colo. App. 2009), a claim
for an injunction to enforce restrictive covenants, see Hammersley, 610 P.2d at
95, a claim for the rescission of a deed of trust, see Cooper v. Flagstaff Realty,
-19- 634 P.2d 1013, 1014–15 (Colo. App. 1981), and a claim to contest the validity of
a will, see Pierce v. Francis, 194 P.3d 505, 510 (Colo. App. 2008).
A notice of lis pendens is not groundless just because the underlying claim
is later denied. See Platt, 214 P.3d at 1068. Rather, a document is “groundless”
within the meaning of § 38-35-109(3) only if it is “one as to which a proponent
can advance no rational argument based on evidence or law to support his or her
claim.” Id.
S&J contends that Leoff’s amended complaint, which was filed before
Leoff filed the second notice of lis pendens, could not justify a notice of lis
pendens. But its only argument in support is one sentence: “Leoff did not plead
a valid claim against the White House Property or even a constructive trust claim,
making Pierce v. Francis [a will contest] and Kerns v. Kerns [constructive-trust
claim] inapplicable.” Aplt. Reply Br. at 42 (citations omitted). We view the
matter otherwise. The amended complaint asserts that Finger concealed from
Leoff the plan to sell the White House property’s affordable-housing rights to
Element 52. It raises a claim of fraud, alleging that selling the rights to Element
52 would “destroy[] the marketability of the White House units[,] . . . rendering
Leoff’s profit potential a nullity,” R., Vol. II at 234, and, alternatively, a breach
of fiduciary duty based on the same allegations. For relief, the complaint seeks
“such equitable relief as is reasonably necessary to protect the interests of
Plaintiff, including, as applicable, temporary restraining order(s), preliminary and
-20- permanent injunctive relief, to prohibit S and J from . . . transfer or sale of any
part of the rights inherent in the White House project.” Id. at 235–36. In other
words, Leoff sought to enjoin a sale of an interest in the White House property
that allegedly would wrongfully impair his financial interest in the partnership
profits. We need not resolve (1) whether the alleged fraud would justify an
injunction against transfer or sale of any rights in the White House property or (2)
whether a proper action to enjoin transfer of rights in real property can justify
filing a notice of lis pendens. We need only decide whether Leoff could not
advance a “rational argument based on evidence or law to support” an affirmative
answer to those questions. Platt, 214 P.3d at 1068. S&J’s abbreviated discussion
of the issue (perhaps so abbreviated as to waive the issue, see Utahns for Better
Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1169, 1190 (10th Cir. 2002)) has
not persuaded us that such a rational argument would not be possible.
Because S&J has not shown that Leoff’s filing violated § 38-35-109(3), we
affirm the district court’s refusal to award actual damages or attorney fees under
that provision. (Nevertheless, because Leoff did not cross-appeal from the
portion of the judgment awarding the $1,000 penalty, we do not set aside that
award. See Greenlaw v. United States, 554 U.S. 237, 244–45 (2008) (“[A]n
appellate court may not alter a judgment to benefit a nonappealing party. This
Court, from its earliest years, has recognized that it takes a cross-appeal to justify
-21- a remedy in favor of an appellee.”); United States v. Madrid, 633 F.3d 1222, 1225
(10th Cir. 2011).)
E. Liability of Leoff for Breach of Agreement and Fiduciary Duty
S&J’s final contention on appeal is that the district court erred in failing to
find Leoff liable for damages for breaching (1) the Management Agreement (by
failing to oversee construction) and (2) his fiduciary duties to the partnership (by
improperly filing a mechanic’s lien and a notice of lis pendens). As for breach of
the Agreement, the court found that S&J had not proved that Leoff was
responsible for the delays in construction and the resulting cost overruns because
Lehrer had assumed an active role in supervising High Mark’s progress. S&J
asserts that this finding was error because “[t]he record . . . contains significant
undisputed testimony that only Leoff was obligated by the Partnership Agreement
to oversee the contractor and manage and oversee construction . . . .” Aplt. Br. at
43 (internal quotation marks omitted). But S&J provides no record citations for
this proposition, and Leoff testified to the contrary. We cannot agree that the
court’s finding was clearly erroneous. See Creative Consumer Concepts, Inc. v.
Kreisler, 563 F.3d 1070, 1078 (10th Cir. 2009) (appellate court can overturn
district court’s fact finding only if clearly erroneous).
Similarly, the district court found that S&J had not proved that the
mechanic’s lien or the notice of lis pendens had caused damages because neither
of the transactions that S&J says were thwarted was ever more than a speculative
-22- possibility. This finding, too, was not clearly erroneous. We therefore affirm on
this issue.
III. CONCLUSION
We REVERSE the district court’s denial of a final partnership accounting
and the denial of attorney fees arising from the mechanic’s lien and REMAND for
further proceedings on those matters. In all other respects, we AFFIRM the
district court’s judgment.
ENTERED FOR THE COURT
Harris L Hartz Circuit Judge
-23-