The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY March 21, 2019
2019COA45
No. 17CA2260, Rinker v. Colina-Lee — Real Property — Easements; Remedies — Injunctive Relief
This is the first case in Colorado, and one of the few in the
United States, that addresses whether a court must find irreparable
harm prior to entering an injunction to enforce an easement. The
opinion adopts the position set forth in section 1.2(1) of the
Restatement (Third) of Property: Servitudes (Am. Law Inst. 2000)
that a finding of irreparable harm is not a prerequisite for entering
an injunction to protect an easement.
The decision also addresses two other important issues: (1)
whether an unincorporated association is a necessary party in a
case involving interpretation of its “founding document” and (2)
whether an appellant preserves an issue for appeal where the trial court did not give the appellant an opportunity to be heard on the
matter.
A division of the court of appeals affirms the holding of the
district court. COLORADO COURT OF APPEALS 2019COA45
Court of Appeals No. 17CA2260 Larimer County District Court No. 15CV30862 Honorable Stephen J. Jouard, Judge
George Rinker,
Plaintiff-Appellant,
v.
Lori Rose Colina-Lee,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE LIPINSKY Dailey and Furman, JJ., concur
Announced March 21, 2019
Herms Herrera LLC, Jeffrey B. Cullers, Fort Collins, Colorado, for Plaintiff- Appellant
Fischer Brown Bartlett Gunn P.C., Todd W. Rogers, Fort Collins, Colorado, for Defendant-Appellee ¶1 Plaintiff-appellant, George Rinker, and defendant-appellee,
Lori Rose Colina-Lee, are neighbors in the semirural subdivision of
Soldier Canyon Estates in Larimer County. Their dispute centers
on a culvert that Rinker installed to prevent runoff from draining
onto his property. Colina-Lee contends that Rinker breached the
neighbors’ road maintenance agreement when he installed the
culvert.
¶2 Rinker appeals the district court’s orders granting Colina-Lee
leave to assert counterclaims, denying his motion for leave to join
the Galena Court Property Owners’ Association (the Association) as
a defendant, and entering an injunction requiring Rinker to unblock
the culvert.
¶3 We affirm the district court’s rulings and hold (1) the merits of
a district court’s sua sponte ruling are reviewable on appeal,
regardless of whether any party contemporaneously objected to it;
(2) an unincorporated association is not a necessary party in a case
involving interpretation of its founding document; and (3) a finding
1 of irreparable harm is not a prerequisite for entering a permanent
injunction to protect an easement.
I. The Dispute Between the Residents of Galena Court
A. Rinker Installs the Culvert
¶4 Galena Court, an unpaved roadway, serves six lots in Soldier
Canyon Estates. The households residing on Galena Court entered
into the Galena Court Property Owners’ Association Road
Maintenance Agreement (the Agreement). The Agreement
established the Association and required the homeowners to pay
annual dues to fund the maintenance of Galena Court.
¶5 Shortly after purchasing his property on Galena Court, Rinker
installed a culvert along the front of his driveway to divert the
natural runoff from the land above his home. More than a decade
later, Jaeson Brewen, another resident of Galena Court, reshaped a
portion of Galena Court uphill from Rinker’s property. As part of
this work, Brewen placed recycled asphalt material on Galena
Court. He also increased the grade and altered the contour of
Galena Court. These changes caused sediment and asphalt
particles to run through the culvert and to collect on Rinker’s front
yard. 2 ¶6 In addition, the Association changed the shape of the section
of Galena Court uphill from Rinker’s property. Rinker contended
that the new shape of Galena Court exacerbated the deposits of
asphalt onto his yard and increased the difficulty of accessing his
property.
¶7 Rinker complained to the Association about the asphalt
particles that were washing down from Galena Court, through the
culvert, and onto his front yard. Although the Association installed
a filtration system to attempt to protect Rinker’s property from the
runoff, polluted water continued to flow from Galena Court onto
Rinker’s front yard. Rinker tried unsuccessfully to fix the drainage
problem by installing filters over the culvert.
¶8 When these solutions proved ineffective, Rinker blocked the
culvert to protect his property from further sediment damage. The
blocked culvert caused road sediment to flow onto, and to erode,
Galena Court. Larimer County demanded that Rinker unblock the
culvert, asserting that the blocked culvert restricted “the flow of
water in the road-side ditch, causing it to overflow the traveled
way.”
3 ¶9 Rinker filed an action against Larimer County and Brewen.
Rinker asked the district court to enter (1) a declaratory judgment
that Larimer County lacked jurisdiction over Galena Court because
it was not a public right-of-way and (2) an injunction barring
Larimer County from altering Rinker’s property or any part of
Galena Court adjacent to Rinker’s property. In addition, Rinker
asserted a trespass claim against Brewen.
¶ 10 Larimer County filed a counterclaim for an injunction
requiring Rinker to remove the obstructions he had placed on
Galena Court and in or near the culvert. The County also sought
an injunction prohibiting Rinker from placing any additional
obstructions on Galena Court or otherwise interfering with Larimer
County’s authority over Galena Court. Brewen asserted a
counterclaim for a mandatory injunction compelling Rinker to
remove the obstacles and to restore the surface of Galena Court.
B. The District Court Grants Colina-Lee Leave to File Counterclaims
¶ 11 Larimer County moved for an order requiring Rinker to join all
the property owners in the Soldier Canyon Estates subdivision as
necessary parties pursuant to C.R.C.P. 19. After the district court
4 granted the motion, Rinker filed an amended complaint that
included claims against all the Soldier Canyon Estates property
owners, including Colina-Lee and the other owners of property
adjoining Galena Court. In her answer, Colina-Lee pleaded, as an
affirmative defense, that Rinker had breached the Agreement.
¶ 12 As the trial date approached, Larimer Country vacated the
public right-of-way on Galena Court. Rinker then settled with
Larimer County and Brewen. As part of the settlements, Rinker
agreed to dismiss his claims against Larimer County and Brewen,
who agreed to dismiss their counterclaims. Rinker and Brewen
further agreed to the entry of a stipulated judgment that, among
other provisions, required Rinker to remediate portions of Galena
Court that his culvert had damaged. The stipulated judgment,
however, would have granted Rinker authority to alter Galena Court
without consulting the other owners of property adjoining Galena
Court. In light of his settlements with Larimer County and Brewen,
Rinker asked the district court to dismiss his claims against the
property owners.
5 ¶ 13 Colina-Lee objected to the dismissal motion and the proposed
stipulated judgment, which she contended would adversely affect
her interest in Galena Court. She argued that, regardless of
Rinker’s settlements with Larimer County and Brewen, the
proposed stipulated judgment would give Rinker authority to alter
Galena Court without the approval of the remaining Galena Court
property owners, in violation of the Agreement. Colina-Lee
requested a pretrial conference to clarify which issues, claims, and
parties remained for trial.
¶ 14 At the pretrial conference, counsel for Colina-Lee orally moved
for leave to amend her answer to assert counterclaims for breach of
the Agreement. Without providing Rinker with an opportunity to
address Colina-Lee’s motion, the district court granted the motion
from the bench. The district court found that Colina-Lee should be
permitted to assert a cross-claim or counterclaim in light of the
significant change in the posture of the case as a consequence of
Rinker’s settlements with Larimer County and Brewen. The district
court then asked counsel for Rinker whether he had anything
further to say. Counsel for Rinker said that, because the district
6 court had already granted Colina-Lee’s motion, Rinker would not
present any arguments in opposition to the motion for leave to
amend.
¶ 15 Rinker subsequently moved for reconsideration of the district
court’s ruling granting Colina-Lee leave to amend. In his motion for
reconsideration, Rinker argued for the first time that (1) Colina-Lee
had waited too long to plead her new claims; (2) she had no valid
excuse for asserting an untimely motion for leave to amend; and (3)
the assertion of Colina-Lee’s new claims would be highly prejudicial
to Rinker. The district court summarily denied Rinker’s motion for
reconsideration.
¶ 16 In her counterclaims, Colina-Lee sought (1) an injunction
requiring Rinker to comply with the Agreement and to open the
blocked culvert and (2) a declaratory judgment that, under the
Agreement, Rinker had no right to make unilateral changes to
Galena Court without the approval of the other Galena Court
property owners. After Rinker filed his answer to Colina-Lee’s
counterclaims, the district court set a new trial date.
C. The District Court Denies Rinker’s Motion for Leave to Amend
7 ¶ 17 Rinker moved for leave to amend his complaint two months
before trial. Rinker sought to join the Association as a defendant
and to assert claims against the Association for nuisance and
trespass. He also requested leave to add a claim for a declaratory
judgment stating that the Agreement required the Association to
maintain Galena Court.
¶ 18 The district court denied Rinker’s motion for leave to amend,
finding that (1) the Association was not a necessary party, contrary
to Rinker’s contention; (2) an amendment adding claims against a
new party would require vacating the new trial date; and (3) Rinker
had not shown good cause for amending his complaint.
D. Colina-Lee Prevails at Trial
¶ 19 At the conclusion of the trial, the district court granted the
relief that Colina-Lee had requested. It entered an injunction
requiring Rinker to unblock the culvert. (Although the district
court’s order also requires Rinker to restore the culvert to its
original location, the record does not reflect from where Rinker had
moved the culvert.)
8 ¶ 20 The district court also entered a declaratory judgment stating
that (1) each property owner has the right to enforce the Agreement;
(2) the Agreement governs the repair, maintenance, and
improvement of Galena Court; (3) the Association is responsible for
maintaining Galena Court; (4) the Association is responsible for any
improvements to Galena Court; (5) pursuant to the Agreement, the
property owners must avoid damaging or degrading Galena Court
beyond the wear due to normal usage; and (6) the Agreement does
not otherwise impair or limit the property owners’ use of their
respective properties. Rinker filed this appeal.
II. The District Court Did Not Abuse Its Discretion in Granting Colina-Lee’s Motion for Leave to Amend
¶ 21 Rinker contends that the district court erred in granting
Colina-Lee leave to assert counterclaims against him. He argues
that Colina-Lee’s motion was untimely and prejudicial. We
disagree.
A. Rinker’s Opposition to Colina-Lee’s Motion Is Properly Before Us on Appeal
¶ 22 Before reviewing the merits of Rinker’s opposition to Colina-
Lee’s motion for leave to amend, we consider whether Rinker’s
arguments against Colina-Lee’s motion are properly before us. The 9 parties did not brief whether Rinker preserved those arguments for
appeal. Preservation is a threshold question. People v. Bondsteel,
2015 COA 165, ¶ 6, ___ P.3d ___, ___ (cert. granted Oct. 31, 2016).
We do not review issues that have been insufficiently preserved.
Liberty Bankers Life Ins. Co. v. First Citizens Bank & Tr. Co., 2014
COA 151, ¶ 25, 411 P.3d 111, 118.
¶ 23 We conclude that we may review the issue given the
circumstances under which the district court granted Colina-Lee’s
motion. Without advance notice to the district court or to Rinker,
at the pretrial conference, Colina-Lee orally moved for leave to
assert counterclaims. Following a brief colloquy with counsel for
Colina-Lee, and without asking for Rinker’s position on the motion,
the district court granted Colina-Lee leave to “file an amended
pleading to assert whatever cross-claims or counterclaims she
deems appropriate.”
¶ 24 Before issuing its ruling, the district court never gave Rinker a
timely opportunity to be heard on the matter. Only after granting
the motion did the district court ask Rinker’s attorney, “do you have
anything further?”
10 ¶ 25 As a general rule, a party must make a timely and specific
objection or request for relief in the district court to preserve an
issue for appeal. Am. Family Mut. Ins. Co. v. DeWitt, 218 P.3d 318,
326 (Colo. 2009). To be timely, a party must assert the objection or
request for relief contemporaneously with the allegedly erroneous
action. See Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 600
(Colo. App. 2007). In addition, presentation of new arguments in a
motion for reconsideration is improper. Ogunwo v. Am. Nat’l Ins.
Co., 936 P.2d 606, 611 (Colo. App. 1997); see also C.R.C.P. 121,
§ 1-15(11) (“Motions to reconsider interlocutory orders of the court
. . . . are disfavored. A party moving to reconsider must show more
than a disagreement with the court’s decision.”); Bally Export Corp.
v. Balicar, Ltd., 804 F.2d 398, 404 (7th Cir. 1986) (“[A] motion for
reconsideration is an improper vehicle . . . to tender new legal
theories”).
¶ 26 Initially, we note that we need not decide whether, to preserve
his objections for appeal, Rinker should have made a record of his
objections immediately after the court ruled on the matter. (It
should go without saying, however, that the district court should
11 have provided him with an opportunity to respond to Colina-Lee’s
oral motion prior to deciding it.) That is because where, as here,
the trial court rules sua sponte on an issue, the merits of its ruling
are subject to review on appeal, whether timely objections were
made or not. See In re Estate of Ramstetter, 2016 COA 81, ¶ 71 n.7,
411 P.3d 1043, 1054 n.7 (referencing the rule that “where a trial
court addresses an argument, whether that argument was
preserved is moot”); cf. People v. Milligan, 77 P.3d 771, 775 (Colo.
App. 2003) (“[B]ecause the trial court addressed defendant’s
statements and the Miranda issue at the suppression hearing, we
conclude the issue was properly preserved for appeal.”).
¶ 27 Consequently, we address the merits of Rinker’s objections to
Colina-Lee’s motion for leave to amend.
B. Standard of Review
¶ 28 Granting leave to amend is within the sound discretion of the
trial court. Benton v. Adams, 56 P.3d 81, 85 (Colo. 2002). On
appeal, we review whether the trial court abused its discretion in
ruling on the motion to amend. Polk v. Denver Dist. Court, 849 P.2d
23, 25 (Colo. 1993).
12 ¶ 29 A trial court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair. E-470 Pub. Highway
Auth. v. Revenig, 140 P.3d 227, 230 (Colo. App. 2006). “It is not
necessary that we agree with the trial court’s decision.” Streu v.
City of Colo. Springs ex rel. Colo. Springs Utils., 239 P.3d 1264, 1268
(Colo. 2010). A court also abuses its discretion when it
misconstrues or misapplies the law. People v. Reyes, 166 P.3d 301,
302 (Colo. App. 2007).
¶ 30 The trial court’s determination must not exceed the bounds of
the rationally available choices, given the facts and applicable law
in the case. Big Sky Network Can., Ltd. v. Sichuan Provincial
Gov’t, 533 F.3d 1183, 1186 (10th Cir. 2008).
C. The Law Governing Motions for Leave to Amend
¶ 31 C.R.C.P. 15(a) prescribes “a liberal policy of amendment and
encourages the courts to look favorably on requests to amend.”
Eagle River Mobile Home Park, Ltd. v. Dist. Court, 647 P.2d 660, 662
(Colo. 1982) (quoting Varner v. Dist. Court, 618 P.2d 1388, 1390
(Colo. 1980)). Pleadings are not sacrosanct, and justice is best
served by permitting parties to ensure that the issues, as ultimately
13 framed, represent the parties’ true positions. Brown v.
Schumann, 40 Colo. App. 336, 338-39, 575 P.2d 443, 445 (1978).
¶ 32 Our leniency toward the granting of amendments is not
without limits, however. Polk, 849 P.2d at 25. Leave to amend may
be denied where, for example, the moving party unduly delayed in
seeking the amendment, the amendment would unduly prejudice
the opposing party, the moving party acted in bad faith or with a
dilatory motive, or the amendment would be futile. Varner, 618
P.2d at 1390; Akin v. Four Corners Encampment, 179 P.3d 139, 147
(Colo. App. 2007).
¶ 33 The district court must assess the motion for leave to amend
in light of the totality of the circumstances. Polk, 849 P.2d at 26. It
must balance the policy favoring amendment of pleadings against
the burden that granting the amendment may impose on the other
party. Gaubatz v. Marquette Minerals, Inc., 688 P.2d 1128, 1130
(Colo. App. 1984).
¶ 34 Courts may permit amendment late in a case so long as the
amendment does not prejudice the nonmoving party. Eagle River,
647 P.2d at 663. The supreme court has affirmed district courts’
14 orders granting leave to amend four days prior to trial, Palmer Park
Gardens, Inc. v. Potter, 162 Colo. 178, 182-83, 425 P.2d 268, 271
(1967), and even during trial, Cont’l Sales Corp. v. Stookesberry, 170
Colo. 16, 24, 459 P.2d 566, 570 (1969). Delay alone, without a
showing of resulting prejudice or an obvious design to harass,
generally is an insufficient basis to deny a motion for leave to
amend. Eagle River, 647 P.2d at 663.
D. Colina-Lee’s Motion for Leave to Amend Was Timely
¶ 35 Rinker contends that the district court erred in granting
Colina-Lee’s motion for leave to amend because the motion was
untimely. He asserts, correctly, that Colina-Lee had been aware of
the facts underlying her counterclaims for months before the
pretrial conference. The proposed counterclaims arose under the
same facts as those supporting Colina-Lee’s affirmative defense of
breach of contract, which she included in her answer five months
before the pretrial conference.
¶ 36 The record reflects that the district court granted Colina-Lee
leave to amend primarily because of the significant change in the
posture of the case following Rinker’s announcement at the pretrial
15 conference that he had settled with Larimer County and Brewen.
We agree with the district court that Colina-Lee’s motion was timely
because Rinker’s settlements with Larimer County and Brewen
significantly impacted Colina-Lee’s ability to protect her interest in
Galena Court.
¶ 37 The nature of the litigation changed substantially upon
Rinker’s announcement of his settlements with Larimer County and
Brewen. In their respective counterclaims, Larimer County and
Brewen sought orders requiring Rinker to remove the obstructions
he had placed within the right-of-way on Galena Court and barring
him from placing any new obstructions in the right-of-way. In its
counterclaim, Larimer County had asserted that (1) Galena Court
was a dedicated public road; (2) Larimer County had the sole right
to authorize and control the use of Galena Court; and (3) Larimer
County’s authority superseded the rights of all users of the public
right-of-way, including the owners of the lots that abutted the road.
Brewen’s counterclaim included a cause of action for Rinker’s
breach of the Agreement.
16 ¶ 38 Colina-Lee believed that, through their counterclaims, Larimer
County and Brewen were protecting her interest in keeping Galena
Court free from Rinker’s obstructions. As a consequence of Larimer
County’s and Brewen’s settlements with Rinker, however, their
counterclaims dropped out of the case. Rinker’s settlements with
Larimer County and Brewen would have given Rinker authority to
make unilateral changes to Galena Court without consulting the
remaining Galena Court property owners.
¶ 39 Upon learning of Rinker’s settlement with Brewen, Colina-Lee
concluded that she needed to take affirmative steps to protect her
interest in Galena Court, including seeking a remedy for the
damage that Rinker was causing to Galena Court. For this reason,
Colina-Lee orally moved at the pretrial conference for leave to file
her own breach of contract counterclaims against Rinker.
¶ 40 We disagree with Rinker’s contention that Colina-Lee had
ample opportunity before the pretrial conference to assert her
counterclaims. The record does not indicate that Colina-Lee could
have foreseen that Larimer County and Brewen would drop their
counterclaims or that Larimer County would vacate the public
17 right-of-way on Galena Court. Before the pretrial conference,
Colina-Lee could not have known that the parties protecting her
interest in Galena Court had agreed to settlement terms that would
have allowed Rinker to unilaterally alter Galena Court.
¶ 41 Allowing Colina-Lee leave to amend promoted judicial economy
and ensured that all disputes relating to Rinker’s alleged violation
of the Agreement could be resolved through a single action.
Nothing in the record indicates that Colina-Lee filed her motion in
bad faith or for a dilatory purpose.
¶ 42 We therefore hold that Colina-Lee did not unreasonably delay
in moving for leave to amend, given the material change in the
posture of the case upon Larimer County’s and Brewen’s
settlements with Rinker.
E. Rinker Did Not Suffer Undue Prejudice as a Consequence of Colina-Lee’s Amendment of her Pleading
¶ 43 Rinker argues that the district court’s order granting
Colina-Lee leave to amend improperly deprived him of the benefits
of his settlement with Brewen and forced him to start over in
defending a claim for alleged breach of the Agreement. We disagree.
18 ¶ 44 Rinker does not cite any legal authority to support his
contention that he could have imposed on Colina-Lee the terms of
his settlements with Larimer County and Brewen, even though the
settlements would have permitted Rinker to continue to obstruct
the portion of Galena Court adjoining Colina-Lee’s property. When
Larimer County and Brewen settled with Rinker, Colina-Lee needed
to protect her interests by asserting her own breach of contract
counterclaims.
¶ 45 In any event, the district court cured any possible prejudice to
Rinker by continuing the trial date. “Where the prejudice suffered
by the opposing party is lack of adequate time to prepare his case,
this hardship may be avoided by granting a continuance of the trial
date.” Eagle River, 647 P.2d at 663-64.
¶ 46 Rinker conceded that Colina-Lee’s counterclaims were
substantially similar to Brewen’s breach of contract counterclaim.
Rinker had litigated that counterclaim for months. He therefore
had ample opportunity to prepare a defense to Colina-Lee’s nearly
identical counterclaims.
19 ¶ 47 For these reasons, we conclude that the district court did not
abuse its discretion in granting Colina-Lee leave to amend.
III. The District Court Did Not Abuse Its Discretion in Denying Rinker’s Motion for Leave to Amend
¶ 48 Rinker contends that the district court erred in denying his
motion for leave to amend his complaint. We disagree.
A. Standard of Review
¶ 49 As we noted in Part II.B above, granting leave to amend is
within the sound discretion of the district court. Benton, 56 P.3d at
85. We will uphold the district court’s decision as long as it does
not exceed the bounds of the rationally available choices, given the
facts and applicable law. Big Sky Network Can., Ltd., 533 F.3d at
1186.
B. Rinker’s Arguments Supporting His Motion for Leave to Amend
¶ 50 Rinker did not merely request leave to amend his complaint.
He sought to join the Association as a new party and to assert new
claims against the Association only two months before trial. He did
not seek leave to amend his claims against Colina-Lee, the only
other party to the case.
20 ¶ 51 Rinker contends that the district court erred in denying his
motion for leave to amend because the Association was a necessary
party, as it “had an interest in the meaning of its own founding
document” — the Agreement.
¶ 52 C.R.C.P. 19(a) states that
[a] person who is properly subject to service of process in the action shall be joined as a party in the action if: (1) In his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (A) As a practical matter impair or impede his ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
¶ 53 Rinker does not support his argument that the Association
was a necessary party with any legal authority other than C.R.C.P.
19(a)(1)(A), which refers neither to unincorporated organizations nor
to “founding documents.” We are unaware of any case holding that
a corporate entity must be joined as a necessary party in any action
involving interpretation of its “founding document.”
¶ 54 Three days after oral argument, Rinker submitted
supplemental authority in the form of citations to three out-of-state 21 cases, all decided more than a decade ago. Rinker contends that
the cases support his argument that the Association was a
necessary party.
¶ 55 Rinker did not comply with C.A.R. 28(i) in tendering the cases.
See C.A.R. 28(i) (“If pertinent and significant new authority comes to
a party’s attention after the party’s brief has been filed, a party may
promptly advise the court by giving notice . . . .”) (emphasis added).
None of the three cases is new. We have discretion to disregard
supplemental authority that is not pertinent, significant, and new.
DeHerrera v. Am. Family Mut. Ins. Co., 219 P.3d 346, 354 (Colo.
App. 2009).
¶ 56 In any event, none of Rinker’s cases addresses whether a
corporate entity must be joined as a necessary party in a case
involving interpretation of its “founding document.” See McCraw v.
Aux, 696 S.E.2d 739, 740 (N.C. Ct. App. 2010); Page v. Bald Head
Ass’n, 611 S.E.2d 463, 465 (N.C. Ct. App. 2005); Gurrad v. Klipsun
Waters Homeowner’s Ass’n, No. 23029-1-II, 1998 WL 804801, at *2
(Wash. Ct. App. Nov. 20, 1998) (unpublished opinion). Rinker’s
22 supplemental authority, therefore, does not alter our conclusion
that the Association was not a necessary party.
¶ 57 We are therefore unconvinced that the district court erred in
declining to join the Association as a necessary party.
¶ 58 Indeed, the case law supports the district court’s decision that
preservation of the trial date warranted denial of Rinker’s motion for
leave to amend. In Apollo Tire, Inc. v. United Bank of Lakewood
National Ass’n, 531 P.2d 976, 977-78 (Colo. App. 1974) (not
published pursuant to C.A.R. 35(f)), a division of this court held
that a district court does not abuse its discretion in denying a
motion for leave to amend where “[the] litigation had already been
protracted and the granting of plaintiff’s motion to amend would
have required further lengthy delay in order that the defendants
might respond to the new claims for relief.” See Eckstine v. Harris,
521 P.2d 1280, 1281 (Colo. App. 1974) (not published pursuant to
C.A.R. 35(f)) (holding that denial of leave to amend is proper where
“numerous delays have already occurred, the proposed amendment
is not tendered until just prior to the date of the trial, and no
23 justification appears for further delay in bringing the litigation to an
end”).
¶ 59 A motion to join a new party is materially different from a
request to amend claims against existing parties, particularly if the
proposed new party is not necessary to adjudication of the case.
Accordingly, we conclude that the district court did not abuse its
discretion in denying Rinker’s motion for leave to amend.
IV. The District Court Did Not Abuse Its Discretion in Entering the Permanent Injunction Against Rinker
¶ 60 Rinker contends that the district court erred in entering a
permanent injunction requiring him to unblock the culvert and to
restore it to its original location. (As noted above, the record
contains no information regarding the original location of the
culvert. Accordingly, we solely examine that portion of the
injunction requiring Rinker to unblock the culvert.)
¶ 61 Specifically, Rinker contends that the district court (1) did not
make a finding on each of the required elements of an injunction
and (2) entered an overbroad order that improperly mandates
Rinker to take specific actions on his property. We disagree.
24 A. Standard of Review
¶ 62 We review the district court’s order entering a permanent
injunction for an abuse of discretion. Rome v. Mandel, 2016 COA
192M, ¶ 60, 405 P.3d 387, 399; Stulp v. Schuman, 2012 COA 144,
¶ 9, 410 P.3d 457, 459. The grant or denial of injunctive relief lies
within the sound discretion of the district court and will be reversed
only upon a showing of an abuse of that discretion. Langlois v. Bd.
of Cty. Comm’rs, 78 P.3d 1154, 1157 (Colo. App. 2003).
¶ 63 A court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair; is based on an erroneous
understanding or application of the law; or misconstrues or
misapplies the law. People v. Wunder, 2016 COA 46, ¶ 20, 371 P.3d
785, 789. When reviewing orders for permanent injunctions, we
defer to the district court’s underlying factual findings if the record
supports them. Rome, ¶ 60, 405 P.3d at 399; Stulp, ¶ 9, 410 P.3d
at 459.
B. The Required Elements of an Injunction
¶ 64 Under the Colorado law governing permanent injunctions, the
party seeking the injunction must generally prove four elements: (1)
he or she has achieved actual success on the merits; (2) irreparable 25 harm will result unless the injunction is issued; (3) the threatened
injury outweighs the harm that the injunction may cause to the
opposing party; and (4) the injunction, if issued, will not adversely
affect the public interest. Langlois, 78 P.3d at 1158.
¶ 65 Rinker concedes that the district court found that Colina-Lee
satisfied the first element for entry of an injunction: actual success
on the merits. Accordingly, we do not need to address this element.
¶ 66 Rinker contends that the district court erred in entering the
injunction without making findings regarding the second, third, and
fourth elements. We disagree.
1. Element Two: Irreparable Harm
¶ 67 Although Colorado courts have entered injunctions to enforce
easements, see, e.g., Roaring Fork Club, L.P. v. St. Jude’s Co., 36
P.3d 1229, 1237-38 (Colo. 2001); Upper Platte & Beaver Canal Co. v.
Riverview Commons Gen. Improvement Dist., 250 P.3d 711, 715-16
(Colo. App. 2010); Lazy Dog Ranch v. Telluray Ranch Corp., 923
P.2d 313, 316-18 (Colo. App. 1996), they have not considered
whether a court must satisfy the irreparable harm element before
enjoining interference with an easement. (Both Rinker and
26 Colina-Lee concede that their dispute concerns rights to an
easement. An easement is a “nonpossessory right to enter and use
land in the possession of another . . . .” Restatement (Third) of
Prop.: Servitudes § 1.2(1) (Am. Law Inst. 2000).)
¶ 68 For this reason, we turn to the Restatement for guidance on
the required elements of an injunction entered to restore an
easement. The Restatement explains “why easement cases often
require noncompensatory relief.” Upper Platte, 250 P.3d at 715
(citing section 8.3 of the Restatement (Third) of Prop.: Servitudes
authoritatively). “Injunctive relief is normally available to redress
violations of easements . . . without proof of irreparable injury or a
showing that a judgment for damages would be inadequate.”
Restatement (Third) of Prop.: Servitudes § 8.3 cmt. b.
¶ 69 Comment b explains that a court need not find the element of
irreparable harm in enjoining interference with an easement
because (1) the value of an easement can be difficult to quantify; (2)
market values may not reflect the easement’s value to the land
owner; and (3) a party should not be permitted to buy out of a
servitude obligation if the servitude continues to serve its purpose.
27 Id. (The Restatement uses the term “servitude” to describe
easements and similar rights and obligations that run with the
land. Id. § 1.1(1)(a) & (b).) We find the reasoning of the
Restatement persuasive.
¶ 70 We therefore hold that a party seeking an injunction as a
remedy for wrongful interference with an easement is not required
to prove irreparable harm.
2. Elements Three and Four: Balancing the Parties’ Interests and Evaluating the Impact of the Proposed Injunction on the Public Interest
¶ 71 The Restatement does not address whether courts may enter
an injunction as a remedy for interference with an easement
without making findings as to whether (1) the threatened injury
outweighs the harm the injunction may cause to the opposing party
and (2) the injunction, if issued, will not adversely affect the public
interest.
¶ 72 We need not decide whether a court must consider the third
and fourth elements when considering an injunction to enforce an
easement, however. Regardless of whether those elements apply to
28 injunctions involving easements, the district court’s findings
satisfied the third and fourth elements.
a. The District Court Balanced the Injury to Colina-Lee Against the Harm an Injunction Would Cause Rinker
¶ 73 The district court balanced Colina-Lee’s and Rinker’s
competing interests. The district court acknowledged Rinker’s
argument that Colina-Lee’s interest in the condition of Galena
Court must be “balanced with Rinker’s rights as the owner of the
burdened property.”
¶ 74 The district court found that, by blocking the culvert, Rinker
caused “erosion, ruts, and channels clearly beyond what would be
considered wear [to Galena Court] due to normal usage.” The
district court noted that the Agreement precluded Rinker from
damaging Galena Court in this manner. Therefore, the district
court found that, absent the requested injunction, Rinker’s
activities would result in further harm to Colina-Lee’s interest in
¶ 75 At the same time, the district court acknowledged that
reopening the culvert would impact Rinker by causing “runoff and
debris [to be] deposited in [Rinker’s] front yard.” The district court
29 thus considered the harm that entry of the injunction would cause
to Rinker.
¶ 76 Therefore, the record reflects that the district court balanced
the injury that Rinker was causing to Colina-Lee’s interest in
Galena Court against the harm that the requested injunction would
cause to Rinker. The district court concluded that the benefit of
remediating the damage to Galena Court outweighed the harm that
Colina-Lee’s injunction would cause to Rinker.
b. The District Court Considered Whether the Injunction Would Adversely Impact the Public Interest
¶ 77 The district court determined that the proposed injunction
would not adversely affect the public interest, which is the fourth
element of an injunction. The district court found that Rinker’s
actions had degraded Galena Court so badly that operators of
passenger vehicles had difficulty driving on it. Drivers’ ability to
navigate Galena Court without difficulty is a public interest
consideration. Thus, the district court considered whether the
public interest supported entry of the injunction.
30 ¶ 78 Accordingly, we disagree with Rinker’s contention that the
district court made insufficient findings before entering the
injunction.
C. Mandatory Injunctions in Easement Disputes
¶ 79 We next address Rinker’s challenge to the scope of the
injunction. Rinker asserts that the district court abused its
discretion by issuing an injunction requiring him to unblock the
culvert, rather than simply directing him to cease violating the
terms of the Agreement.
¶ 80 “An injunction is an extraordinary and discretionary equitable
remedy” that is “intended to prevent future harm.” Bd. of Cty.
Comm’rs v. Vandemoer, 205 P.3d 423, 430 (Colo. App. 2008). Trial
courts are vested with broad discretion to formulate the terms of
injunctive relief. Colo. Springs Bd. of Realtors, Inc. v. State, 780
P.2d 494, 498 (Colo. 1989).
¶ 81 Colorado law allows for the entry of injunctive relief in
easement disputes. Injunctive relief is available where the servient
owner has interfered with the dominant owner’s easement. Roaring
Fork Club, 36 P.3d at 1237-38; Upper Platte, 250 P.3d at 715. “[I]f a
plaintiff does not receive a double recovery, a court may issue an 31 injunction to open a blocked easement . . . .” Upper Platte, 250 P.3d
at 715 (quoting Proper v. Greager, 827 P.2d 591, 597 (Colo. App.
1992)).
¶ 82 Damages are inadequate in easement cases because land is
unique, and courts must accommodate competing uses. Roaring
Fork Club, 36 P.3d at 1235-36. In an easement alteration case,
“damages alone will not provide the plaintiff with the actual use to
which he is entitled,” and thus
courts usually grant the easement owner injunctive relief when it is desired and when the defendant’s conduct in fact interferes with the easement rights. . . . Mandatory injunctions, for example an injunction to remove an obstruction on the easement, are not unusual where the facts warrant such relief.
1 Dan B. Dobbs, Law of Remedies § 7.7(6), at 785 (2d ed. 1993).
¶ 83 Under Colorado law, the traditional and preferred equitable
remedy for a continuing trespass is a mandatory injunction
requiring the removal of the encroachment. Hunter v. Mansell, 240
P.3d 469, 479 (Colo. App. 2010). An owner of a servient tenement
has “no right for his own convenience or profit to change the
location of a ditch, or to do anything which will interfere with the
32 vested rights” of a dominant tenement therein, without the consent
of the benefited party. Roaring Fork Club, 36 P.3d at 1234
(quoting Chirichigno v. Dickinson, 63 Colo. 443, 445, 167 P. 1178,
1178 (1917)).
¶ 84 Rinker contends that the district court erred in imposing an
affirmative obligation on him, rather than merely ordering him to
remove the culvert, and in formulating a mandatory injunction that
he asserts exceeds the scope of his obligations under the
Agreement. We disagree.
¶ 85 The injunction cases Rinker cites are distinguishable. In
K9Shrink, LLC v. Ridgewood Meadows Water & Homeowners Ass’n,
278 P.3d 372, 374 (Colo. App. 2011), a division of this court upheld
an injunction that followed the parameters of a restrictive covenant
prohibiting certain activities on the subject property. In contrast,
Atmel Corp. v. Vitesse Semiconductor Corp., 30 P.3d 789, 796 (Colo.
App. 2001), abrogated in part on other grounds by Ingold v.
AIMCO/Bluffs, L.L.C. Apartments, 159 P.3d 116 (Colo. 2007),
concerned the entry of an overbroad injunction that granted the
plaintiff relief to which he was not entitled under his employment
33 agreement. We are not persuaded that the scope of the injunction
in this case ran afoul of K9Shrink or Atmel.
¶ 86 The Agreement prohibits certain activities or conditions that
damage or degrade Galena Court beyond normal wear and tear. We
disagree with Rinker’s assertion that the district court exceeded the
scope of its authority when it ordered Rinker to unblock the culvert.
The entry of the mandatory injunction was an appropriate remedy
once the district court found that Rinker was blocking an easement.
See Hunter, 240 P.3d at 479.
¶ 87 We perceive no distinction, other than a semantic one,
between an injunction compelling Rinker to comply with the terms
of the Agreement and an injunction requiring Rinker to unblock the
culvert. Unlike the overbroad relief granted in Atmel, the district
court here fashioned an injunctive remedy consistent with Rinker’s
obligations under the Agreement.
¶ 88 Accordingly, we conclude that the district court did not abuse
its discretion in entering an injunction requiring Rinker to unblock
34 V. Conclusion
¶ 89 The judgment is affirmed.
JUDGE DAILEY and JUDGE FURMAN concur.