Resort Valley v. Bartoletti

• Court: Colorado Court of Appeals
• Decided: July 3, 2024
• Docket: 23CA1533
• Status: Unknown

Opinion

23CA1533 Resort Valley v Bartoletti 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1533

Jefferson County District Court No. 21CV30491

Honorable Tamara S. Russell, Judge

Resort Valley Ranch East Inc., a Colorado corporation,

Plaintiff-Appellant,

v.

Dorothy Bartoletti; Vincent Bartoletti; Jefferson County, Colorado; and Bradley

Allen Sims,

Defendants-Appellees,

Daniel Daru; Fredda Sibley; and Randy Sibley,

Defendants.

JUDGMENT AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE YUN

Moultrie and Davidson*, JJ., concur

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

Announced July 3, 2024

Creer Law, LLC, Gregory R. Creer, Greenwood Village, Colorado, for Plaintiff-

Appellant

Anderson Notarianni McMahon LLC, Gregory J. Notarianni, Joshua D.

McMahon, Denver, Colorado, for Defendants-Appellees Dorothy Bartoletti and

Vincent Bartoletti

Kimberly Sorrells, County Attorney, Eric T. Butler, Deputy County Attorney,

Jason Soronson, Assistant County Attorney, Amber J. Munck, Assistant

County Attorney, Golden, Colorado, for Defendant-Appellee Jefferson County,

Colorado

Fidelity National Law Group, Brian J. Cosper, Denver, Colorado, for Defendant-

Appellee Bradley Allen Sims

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

1

¶ 1 The plaintiff, Resort Valley Ranch East Inc. (RVRE), appeals

the district court’s summary judgment in favor of the defendants,

Jefferson County (the County), Vincent and Dorothy Bartoletti,

Bradley Allen Sims, Daniel Daru, and Fredda and Randy Sibley, on

RVRE’s claim for an easement by necessity. We affirm the

judgment and remand for determination of the Bartolettis’

reasonable attorney fees incurred on appeal.

I. Background

¶ 2 This case arises from RVRE’s efforts to obtain an easement

permitting it to use a path, White Hawk Trail, that crosses the

defendants’ properties. In its complaint, RVRE asserted that a

forty-acre parcel of its property (the forty-acre parcel) is landlocked

and requires “an easement for ingress and egress” along White

Hawk Trail. The forty-acre parcel adjoins a 1,886-acre tract of land

(the adjacent RVRE tract) also owned by RVRE.

¶ 3 The parties’ properties and White Hawk Trail are depicted on

the following uncontested map:

2

As shown, White Hawk Trail begins at Foxton Road and travels

northwest across the County’s property (labeled “JCOS”) and the

properties of Sims, the Sibleys, Daru, and the Bartolettis. The

forty-acre parcel is the area marked with red “+” signs, directly west

of the Bartolettis’ property. The remaining property on the west

side of the map labeled “Resort Valley East, Inc.” is the adjacent

RVRE tract.

¶ 4 RVRE asserted claims for an express easement, an easement

by prescription, and an easement by necessity. The County, the

Bartolettis, and Sims all filed motions for summary judgment,

supported by declarations and real estate records, arguing, as

3

relevant here, that RVRE had not established (and could not

establish) the requirements for an easement by necessity.

1

In

response, RVRE did not dispute the facts or evidence set forth in

the summary judgment motions. Instead, it submitted only an

unsworn engineer’s report opining that “White Hawk Trail provides

the most reasonable and safest access to [the forty-acre parcel].”

¶ 5 The district court noted that RVRE had “failed to respond to

Defendants’ statements of undisputed facts or produce evidence

disputing them and thus has waived any objection to them.” In a

detailed order, the court found that RVRE had failed to demonstrate

any disputed issues of material fact and failed to establish the

required elements for any of its easement claims. Accordingly, it

granted summary judgment against RVRE.

1

The County, the Bartolettis, and Sims actively defended the claims

asserted against them. Although Daru and the Sibleys defaulted,

the district court ruled that “[j]udgment is to be determined in

Court for all claims asserted in Plaintiff’s Complaint,” and RVRE

does not challenge this ruling on appeal.

4

II. Analysis

¶ 6 On appeal, RVRE contends that the district court erred by

denying its claim for an easement by necessity.

2

It also argues that

the County’s property is “in the public domain.” The Bartolettis

contend that RVRE’s appeal is groundless or frivolous and request

their appellate attorney fees and costs. We address each contention

in turn.

A. Easement by Necessity

¶ 7 We first address RVRE’s contention that the district court

erred by denying its claim for an easement by necessity. We are not

persuaded.

1. Standard of Review

¶ 8 We review summary judgment decisions de novo. Hunter v.

Mansell, 240 P.3d 469, 474 (Colo. App. 2010). “Summary judgment

is appropriate only when the pleadings, affidavits, depositions, or

admissions establish that there is no genuine issue of material fact

2

On appeal, RVRE does not renew its claims for an express

easement or an easement by prescription. We thus consider these

claims abandoned. See Gonzales v. Windlan, 2014 COA 176, ¶ 32

n.1 (appellate court will not address claims raised below but not

reasserted on appeal).

5

and that the moving party is entitled to judgment as a matter of

law.” Id.; see C.R.C.P. 56(c). In evaluating a motion for summary

judgment, all doubts must be resolved against the moving party,

and the nonmoving party is entitled to the benefit of all favorable

inferences that may be reasonably drawn from the undisputed

facts. Hunter, 240 P.3d at 474.

¶ 9 The moving party bears the initial burden of demonstrating

the absence of a genuine issue of material fact. Id. To satisfy this

burden of production, the moving party must inform the court of

the basis for its motion and identify those portions of the record

and of the affidavits that it “believes demonstrate the absence of a

genuine issue of material fact.” Cont’l Air Lines, Inc. v. Keenan,

731 P.2d 708, 712 (Colo. 1987). Once the moving party has met

this initial burden of production, the burden shifts to the

nonmoving party. Id. “The nonmoving party must show that there

is a genuine issue of material fact with admissible evidence and

cannot rely on either pleadings or argument alone.” Hunter,

240 P.3d at 474.

6

2. Law and Discussion

¶ 10 “An implied easement of necessity arises when the owner of a

tract of land conveys part of that tract to another party, leaving

either the part conveyed or the part retained without access except

over the other part.” Campbell v. Summit Plaza Assocs., 192 P.3d

465, 469 (Colo. App. 2008). Three requirements must be met to

establish an implied easement of necessity for access to land:

(1) there must be unity of ownership of the

entire tract prior to severance, meaning that

the original ownership of the entire tract must

have been held by a single grantor prior to a

division thereof; (2) the necessity for the

easement must exist at the time of severance;

and (3) the necessity for the easement must be

great.

Id. at 470. “The burden of proving the existence of an implied

easement of necessity is on the party claiming the easement.” Id.

a. Unity of Ownership

¶ 11 In 2002, RVRE conveyed the forty-acre parcel to Eric and

Nancy Meyers, who at that time also owned the property that now

belongs to the Bartolettis. In 2009, the Meyers conveyed the

forty-acre parcel back to RVRE. RVRE thus asserts that “there was

common ownership between [the forty-acre parcel] and the

7

Bartolettis’ [p]roperty when both properties were owned by Eric and

Nancy Meyers.”

¶ 12 RVRE does not assert that the forty-acre parcel was ever

under common ownership with the properties of Daru, the Sibleys,

Sims, or the County. Instead, it argues that we should not apply

the unity of ownership requirement with respect to those

defendants. Specifically, it argues that upholding the requirement

that “some . . . party needed to own all of the lands crossed by

White Hawk Trail at one time” would lead to the “absurd result” of

“allow[ing] parcels to be cut off upon historical accident.”

¶ 13 In support of its argument that we should find the unity of

ownership requirement satisfied by the period of common

ownership between the forty-acre parcel and the Bartolettis’

property alone, RVRE relies on a statement in Campbell that “unity

of title does not require the dominant and servient estate to be

carved out of a previously undivided single parcel.” Id. at 472. But

RVRE misreads Campbell.

¶ 14 In Campbell, the grantor owned several contiguous parcels of

land and conveyed one of them to the buyers. Id. at 468. When the

buyers discovered that their parcel lacked legal access to a public

8

street or highway, they sought an easement by necessity across the

grantor’s land. Id. The grantor contended that the buyers could

not show unity of ownership of the entire tract prior to severance

“because the parcels involved here were never part of a single tract

and therefore could not be severed.” Id. at 471. The Campbell

division disagreed and upheld the trial court’s ruling that

“ownership, not lot divisions, is the key element when considering

unity of title and a subsequent severance.” Id. at 472. Accordingly,

the division concluded that “the unity requirement is satisfied if the

grantor owns separate but contiguous parcels before conveying one

of them.” Id.

¶ 15 An important difference between this case and Campbell is

that in Campbell, the buyers’ parcel and the land across which they

sought an easement by necessity had all been previously owned by

the grantor. The fact that the grantor owned contiguous parcels

rather than a single tract did not matter because common

“ownership . . . is the key element.” Id. (emphasis added). Here, in

contrast, the undisputed facts establish that the forty-acre parcel

was never under common ownership with the properties of Daru,

the Sibleys, Sims, or the County. Campbell thus provides no

9

support for RVRE’s argument that we should disregard, with

respect to all defendants except the Bartolettis, the requirement

that the original ownership of the dominant and servient estates

“must have been held by a single grantor prior to a division thereof.”

Id. at 470.

¶ 16 RVRE cites no other authority, nor are we aware of any, in

support of its argument. We thus conclude that it has failed to

establish unity of ownership with respect to the properties of Daru,

the Sibleys, Sims, or the County. With respect to the Bartolettis’

property, we proceed to consider the remaining two requirements

for an easement by necessity.

b. Necessity at the Time of Severance

¶ 17 RVRE does not address, either in the district court

proceedings or on appeal, the requirement that “the necessity for

the easement must exist at the time of severance.” Id. at 470.

Although it states (without citation to the record) that the Meyers

“conveyed the [forty-acre parcel] back to RVRE” in December 2009,

presumably making this the time of severance, it does not discuss

the necessity for the easement at this time. Thus, we agree with the

10

district court that RVRE has “fail[ed] to demonstrate that a

necessity existed at the time of severance.”

c. Great Necessity

¶ 18 “A party seeking an easement of necessity must show a

practical inability to have access other than by way of necessity.”

Id. “Although absolute physical impossibility of reaching the

alleged dominant estate is not a requisite, an easement by

[necessity] will not be found if there are alternatives offering

reasonable means of ingress and egress.” Id.

¶ 19 RVRE argues that the engineer’s report it submitted in

response to the summary judgment motions created a factual issue

regarding “whether [it] has the practical inability to access the

[forty-acre parcel] by routes other than White Hawk Trail” —

specifically, through the adjacent RVRE tract, which the defendants

assert provides alternate access — and that the district court erred

by “determining that such an engineering report was either

immaterial or not credible.” But as the district court noted, the

“unsworn engineering report” did not constitute admissible evidence

“to demonstrate that [RVRE] cannot access” the forty-acre parcel by

other routes. “Unsworn expert witness reports are not admissible

11

to support or oppose a motion for summary judgment.”

McDaniels v. Laub, 186 P.3d 86, 87 (Colo. App. 2008). Accordingly,

RVRE’s unsworn expert report was insufficient as a matter of law to

create an issue of material fact, and the district court correctly

declined to consider it.

¶ 20 Because RVRE did not submit competent evidence to dispute

the defendants’ evidence that RVRE could access the forty-acre

parcel by routes other than White Hawk Trail, it has failed to

establish the requirement of great necessity for an easement over

the Bartolettis’ property. See Cont’l Air Lines, 731 P.2d at 712 (once

the moving party has met its initial burden of demonstrating the

absence of a genuine issue of material fact, the burden shifts to the

nonmoving party).

¶ 21 We thus conclude that RVRE has not established the

requirements for an easement by necessity with respect to any of

the defendants’ properties.

B. Public Domain

¶ 22 Next, RVRE argues that the County’s property is “in the public

domain.” We decline to address this argument because it was

inadequately preserved.

12

¶ 23 In its response opposing the County’s summary judgment

motion, RVRE raised a new claim that the portion of White Hawk

Trail on the County’s property “must be a public highway . . . under

C.R.S. § 43-2-201.” RVRE did not reference a subsection of that

statute, which identifies five types of roads “declared to be public

highways.” § 43-2-201(1), C.R.S. 2023. But it argued that it had

been using White Hawk Trail “without interruption” for decades,

implying that it was referring to section 43-2-201(1)(c), which

provides that “[a]ll roads over private lands that have been used

adversely without interruption or objection on the part of the

owners of such lands for twenty consecutive years” are public

highways.

¶ 24 The district court likewise inferred that RVRE was referring to

section 43-2-201(1)(c). It thus found that, because RVRE

has failed to allege or establish that it has

adversely used these portions of White Hawk

Trail [on the County’s property] to show it is a

public highway pursuant to C.R.S.

§ 43-2-201(1)(c), and because no other

subsections of the statute apply, it has failed

to demonstrate that it is entitled to a

prescriptive easement over the County’s

property via C.R.S. § 43-2-201(1)(c).

13

¶ 25 On appeal, RVRE asserts, without citation to the record or to

legal authority, that the County’s property is “in the public domain”

and is therefore a public highway under section 43-2-201(1)(e),

which provides that “[a]ll roads over the public domain” are public

highways. It argues that the district court erred “in that [it] only

considered subsection (1)(c) in its ruling and ignored the more

relevant subsection (1)(e),” but RVRE never presented an argument

under subsection (1)(e) to the district court. Nor does it now

provide any basis for its assertion that the County’s property is in

the public domain, an assertion the County vigorously disputes.

¶ 26 Because we do not address unpreserved or undeveloped

arguments, we decline to address RVRE’s argument under section

43-2-201(1)(e). See Crown Life Ins. Co. v. Haag Ltd. P’ship, 929 P.2d

42, 45 (Colo. App. 1996) (“[B]ecause this issue was not presented

for consideration by the trial court and was raised for the first time

on appeal, we decline to address it.”); People in Interest of D.B-J.,

89 P.3d 530, 531 (Colo. App. 2004) (where appellant does not

identify supporting facts, make specific arguments, or set forth

specific authorities to support his contention, the contention is not

14

properly before the appellate court, and the appellate court will not

address it).

C. Attorney Fees

¶ 27 The Bartolettis contend that RVRE’s appeal is groundless or

frivolous and request their attorney fees and costs

3

incurred on

appeal pursuant to C.A.R. 38(b) and section 13-17-102(2), C.R.S.

2023. We grant the fee request and remand for the district court to

determine the reasonable amount of the Bartolettis’ appellate fees.

¶ 28 Under C.A.R. 38(b), the appellate court may award attorney

fees as a sanction for filing a frivolous appeal. And attorney fees

may be awarded under section 13-17-102(2) when the court

determines that an attorney or party brought an action that lacked

substantial justification, meaning that the action was substantially

frivolous, substantially groundless, or substantially vexatious.

§ 13-17-102(4).

3

Under C.A.R. 39(a)(2), if a judgment is affirmed, costs are taxed

against the appellant. But C.A.R. 39(c)(2) provides that “[a] party

who wants costs to be taxed in the appellate court must file an

itemized and verified bill of costs with the clerk of the trial court”

within fourteen days after entry of the appellate mandate.

(Emphasis added.) Thus, on remand, the Bartolettis should follow

the procedure set forth in C.A.R. 39.

15

¶ 29 “Frivolous appeals include those that lack ‘any rational

justification’ as well as those ‘where the proponent failed to present

a plausible argument in support of a novel claim.’” Hamilton v.

Noble Energy, Inc., 220 P.3d 1010, 1014 (Colo. App. 2009) (quoting

Wood Bros. Homes v. Howard, 862 P.2d 925, 935 (Colo. 1993)).

¶ 30 Here, we agree that RVRE’s contentions on appeal are

substantially frivolous and that an award of appellate attorney fees

is appropriate under C.A.R. 38(b) and section 13-17-102. Although

“good faith attempts to extend, modify, or reverse existing law are

not frivolous,” City of Aurora v. Colo. State Eng’r, 105 P.3d 595, 620

(Colo. 2005), RVRE has not presented a plausible argument in

support of its claim that we should disregard the unity of ownership

requirement as to all defendants except the Bartolettis. Rather, it

relies, as it did before the district court, exclusively on Campbell,

despite the district court’s clarification of that case:

Notably however, the court in Campbell

indicated that two separate but adjacent

parcels owned by the same party were under

common ownership, not that two adjacent

parcels owned by different individuals shared

unity of title.

16

¶ 31 Likewise, RVRE argues that the district court erred by

declining to consider its engineer’s report without addressing the

court’s concern that the report was unsworn. It also fails to

address one of the three requirements for establishing an easement

by necessity, meaning that even if it had prevailed as to common

ownership and great necessity, we would still have been obliged to

deny the appeal. And it fails to provide facts or law in support of its

argument that the County’s property is in the public domain.

Finally, RVRE does not provide a single citation to the record on

appeal, in violation of C.A.R. 28(a)(7)(A).

¶ 32 Accordingly, we direct the district court on remand to

determine the amount of the Bartolettis’ reasonable attorney fees

incurred on appeal and to assess that amount against RVRE.

III. Disposition

¶ 33 The judgment is affirmed, and the case is remanded for a

determination and award of the Bartolettis’ reasonable appellate

attorney fees.

JUDGE MOULTRIE and JUDGE DAVIDSON concur.