Conry v. Eugene H. Barker, an Individual, Bernard C. Maynes, an Individual, B&B 2ND Mortg., LLC

• Decision Date: 11 August 2015
• Docket Number: Civil Action No. 14-cv-02672-CMA-KLM
• Parties: SUZANNE CONRY, an individual, Plaintiff, v. EUGENE H. BARKER, an individual, BERNARD C. MAYNES, an individual, B&B 2ND MORTGAGE, LLC, a Colorado limited liability company, B&B VENTURES, LLC, a Colorado limited liability company, HIGH POINTE, LLC, a Colorado limited liability company, TERRY D. HAMILTON, an individual, CHEM-AWAY, INC., a Colorado corporation, SHARON M. HAMILTON, an individual, and CHEM-AWAY, INC., a California corporation, Defendants, and TERRY D. HAMILTON, an individual, Third-Party Plaintiff, v. THOMAS W. METCALF, an individual, THOMAS W. METCALF, ATTORNEY AT LAW, a professional law firm, ROBERT E. RAY, an individual, LAW OFFICE OF ROBERT E. RAY, a professional law firm, Third-Party Defendants.
• Court: U.S. District Court — District of Colorado

SUZANNE CONRY, an individual, Plaintiff, v. EUGENE H. BARKER, an individual,BERNARD C. MAYNES, an individual,

B&B 2ND MORTGAGE, LLC, a Colorado limited liability company,

B&B VENTURES, LLC, a Colorado limited liability company,

HIGH POINTE, LLC, a Colorado limited liability company,

TERRY D. HAMILTON, an individual,

CHEM-AWAY, INC., a Colorado corporation,SHARON M. HAMILTON, an individual, andCHEM-AWAY, INC., a California corporation, Defendants, andTERRY D. HAMILTON, an individual, Third-Party Plaintiff, v. THOMAS W. METCALF, an individual,THOMAS W. METCALF, ATTORNEY AT LAW,a professional law firm, ROBERT E. RAY, an individual,

LAW OFFICE OF ROBERT E. RAY,

a professional law firm, Third-Party Defendants.

Civil Action No. 14-cv-02672-CMA-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 11, 2015

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendants Eugene H. Barker ("Barker"), Bernard C. Maynes ("Maynes"), B&B 2nd Mortgage, LLC, B&B Ventures, LLC, and High Point,LLC's (collectively, the "Barker Defendants") Motion to Dismiss [#7]¹ (the "First Barker Motion"). Plaintiff, who is proceeding pro se,² filed a Response [#11] in opposition to the First Barker Motion [#7], the Barker Defendants filed a Reply [#13], and Plaintiff filed a Surreply [#15]. See Minute Order [#19] at 1.

This matter is also before the Court on the Barker Defendants' Motion to Dismiss Cross-Claim of Terry D. Hamilton [#37] (the "Second Barker Motion"). Defendant T. Hamilton,³ also proceeding pro se, filed a Response [#53] in opposition to the Second Barker Motion [#37]. No reply was filed.

This matter is also before the Court on Third-Party Defendant Robert E. Ray's ("Ray") Motion to Dismiss Third Party Claim of Terry D. Hamilton [#38] (the "Ray Motion"). Defendant T. Hamilton filed a Response [#54] in opposition to the Ray Motion [#38]. No reply was filed.

This matter is also before the Court on Third-Party Defendant Thomas W. Metcalf's ("Metcalf") Motion to Dismiss Third Party Claim of Terry D. Hamilton [#52] (the "Metcalf Motion"). Defendant T. Hamilton filed a Response [#68] in opposition to the Metcalf Motion[#52], and Third-Party Defendant Metcalf filed a Reply [#73].

The Motions have been referred to this Court for recommendation [#12, #40, #55] pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1(c)(3). The Court has reviewed the Motions, the Response, the Replies, the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons stated below, the Court respectfully RECOMMENDS that the Motions [#7, #37, #38, #52] be GRANTED.

I. Background

A. Plaintiff's Complaint

At the outset, the Court notes that Plaintiff includes very little factual background about the events underlying the Complaint. Her claims involve a settlement agreement, but she provides no detail about the seemingly complicated procedural history leading to that agreement. The following factual allegations comprise the entirety of the background set forth in the Complaint.

Plaintiff is a citizen of Florida. Compl. [#1] ¶ 1. The Barker Defendants are Colorado citizens and Colorado corporations for which Defendants Barker and Maynes are the principals. Id. ¶¶ 2-6, 15. Defendant T. Hamilton and his wife, Sharon M. Hamilton ("S. Hamilton"), are California citizens and principals of Defendants Chem-Away of Colorado and Chem-Away of California (collectively the "Hamilton Defendants.") Id. ¶¶ 7-10, 16.

Plaintiff alleges that she and the Barker Defendants agreed to a Settlement and Release Agreement (the "SRA") on December 11, 2013. Id. ¶¶ 21-22; see generally Compl., Ex. 1 (the "SRA") [#1-1]. The SRA purports to settle claims between Plaintiff, the Barker Defendants, and another entity called "PDC" regarding property interests, mineralinterests, and mineral royalties related to land situated in Weld County, Colorado. SRA 1] at 1-2. Plaintiff alleges that by negotiating the SRA, she and the Barker Defendants "agreed to abandon the former and disputed March 2010 purported global settlement agreement."⁴ Compl. [#1] ¶ 23. She further alleges that the Barker Defendants did not inform the state courts about the SRA, and that she would not have entered the agreement if she had known that the Barker Defendants did not intend to inform the courts about the "abandonment of the March 2010 Global Agreement and subsequent March 3, 2011 state court interlocutory order and purported judgment."⁵ Id. ¶¶ 24-25.

On May 29, 2014, Plaintiff became aware of a Colorado Court of Appeals opinion.⁶ Id. ¶ 26. She alleges that this opinion was a result of the Barker Defendants "committing intentional fraud against Plaintiff." Id. She further alleges that this opinion could result in the loss of her ability to pursue damages against the Hamilton Defendants related to a promissory note and deed of trust (collectively, the "Note and DOT") tied to parcels of land labeled "A-E." Id.

As a result of these allegations, Plaintiff broadly asserts four claims with accompanying requests for relief. In her first claim, Plaintiff asserts that the Barker Defendants have breached the SRA.⁷ Id. ¶ 30. Plaintiff's second claim requests adeclaration that the Barker Defendants are in breach of the SRA.⁸ Id. ¶ 33. Plaintiff's third claim, styled a "Collateral Attack Against Prior State Court Judgments," requests a declaration⁹ that Colorado state court cases 2001CV473, 2005CV1774, and 2009CV625¹⁰ "never ended, continued on[,] and were partially settled in subsequent [c]ase 2012CV15."¹¹ Id. ¶ 36. Plaintiff's fourth claim asserts that the Hamilton Defendants "breached contract(s)" by "failing to honor the assignment of the $960,000 Note and DOT." Id. ¶ 39. The fourth claim also requests compensation for "ownership interests in subject matter Tracts A-E." Id.

Plaintiff additionally requests the following relief from all parties: actual damages, exemplary damages, costs, attorneys' fees, prejudgment and postjudgment interest, and other relief "including a stay on the funds being held for the [Hamilton Defendants] in related case[s.]" Id. ¶¶ A-G.

The First Barker Motion [#7] seeks dismissal of all claims against the Barker Defendants for lack of subject matter jurisdiction pursuant to the Younger abstentiondoctrine and Fed. R. Civ. P. 12(b)(1).¹² [#7] at 6. In the alternative, the First Barker Motion [#7] asserts that Plaintiff's claims should be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Id. at 1.

B. Defendant T. Hamilton's Complaint

Also at issue in the Motions are cross-claims and third-party claims brought by T. Hamilton in his Cross-Complaint/Third-Party Complaint (the "Hamilton Complaint")¹³ [#23].

Defendant T. Hamilton alleges that on April 10, 2000, he entered into a contract with the Barker Defendants in which he sold them "Parcels 1, 2[,] and 3 excluding Tracts A-E" (the "Property"). Hamilton Compl. [#23] ¶ 16. The purchase price was $2,760,000, comprised of $1,500,000 in cash proceeds from a loan from Centennial Bank, $960,000 in the form of a Note and DOT which were subsequently assigned to Plaintiff, and $300,000 at closing. Id. ¶ 17. Defendant T. Hamilton alleges that the Barker Defendants breached the sale contract by failing to pay $1,460,000, comprised of the following: $960,000 as evidenced by the Note and DOT assigned to Plaintiff; $300,000 in cash due at signing; and$200,000 withheld from the sale proceeds. Id. ¶ 20.

Defendant T. Hamilton further alleges that Third-Party Defendant Metcalf was an escrow agent for Defendant B&B 2nd Mortgage, LLC, and himself, as well as counsel for the Barker Defendants.¹⁴ Id. ¶ 11. He also alleges that Third-Party Defendant Ray "is counsel for [the Barker Defendants] and facilitator of [the] SRA between [the Barker Defendants] and Plaintiff." Id. ¶ 12.

Defendant T. Hamilton alleges that, at unspecified times, the Barker Defendants and Third-Party Defendant Metcalf "committed mortgage fraud upon the Bank and [T.] Hamilton, insurance fraud upon the title company, fraud upon the public trustee of Weld and Larimer Count[ies] and fraud upon the [c]ourt." Id. ¶ 22. Defendant T. Hamilton further alleges that the Barker Defendants and Third-Party Defendants Ray and Metcalf (collectively the "Cross-claim Defendants") filed false affidavits, lied to an unspecified court in oral arguments, and filed false documents.¹⁵ Id. ¶ 53. He alleges that these same Defendants "orchestrat[ed] a scheme" that appears to involve the falsification of various documents causing the issuance of a title insurance policy, then later stating that the documents used to secure this policy were "null and void." Id. ¶¶ 60-61. Similarly, he alleges that the Cross-claim Defendants misrepresented the nature of the transactions in the property sale, resulting in the diversion of the same $1,460,000 he asserts that the Barker Defendants failed to pay him. Id. at ¶¶ 66-69. He additionally alleges that theBarker Defendants and Third-Party Defendant Metcalf misused a set of "escrow instructions" to deprive him of the $960,000 promissory note. Id. ¶ 23.

Finally, Defendant T. Hamilton alleges that Third-Party Defendants Ray and Metcalf misled and "wrongfully influenced the court" by their "failure to be candid regarding the true effects and purpose of the SRA." Id. ¶ 24.

As a result of these allegations, Defendant T. Hamilton asserts twelve claims. Defendant T. Hamilton's first claim, titled "Declaratory Judgment pursuant to Fed. R. Civ. Proc. 57," contains no theory of recovery and simply realleges the previous paragraphs. See id. [#23] ¶¶ 26, 27. It appears that Defendant T. Hamilton has mistaken declaratory judgment for a cause of action. See Fitts v. Fed. Nat'l Mortg. Ass'n, 44 F. Supp. 2d 317, 330 (D.D.C. 1999) ("A request for declaratory judgment constitutes a form of relief, not a cause of action.") (citing Weiner v. Klais & Co., Inc., 108 F.3d 86, 92 (...