Fry v. Board of County Com'rs of County of Baca, State of Colo.

Decision Date14 October 1993
Docket NumberNos. 92-1091,92-1138 and 92-1143,s. 92-1091
Citation7 F.3d 936
PartiesDewayne FRY, Luella Fry, Dallas Fry and Lisa Fry, Plaintiffs-Appellants and Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BACA, STATE OF COLORADO; Donald E. Self, in his official capacity as a member of the Board of County Commissioners of the County of Baca, and as an individual; Roy Brinkley, in his official capacity as a member of the Board of County Commissioners of the County of Baca, and as an individual; Harold Smith, in his official capacity as a member of the Board of County Commissioners of the County of Baca, Richard Leo Turner, Johnny B. Boaldin, and Verne E. Moore, Defendants-Appellees and Cross-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Russell O. Stewart (Joseph M. Montano, and Leslie A. Fields, with him on the brief), Faegre & Benson, Denver, CO, for plaintiffs-appellants.

Steven J. Dawes (Paul E. Collins, with him on the brief), Greengard Senter Goldfarb & Rice, Denver, CO, for defendants-appellees.

Michael T. Mitchell, Parker, CO, for defendants-appellees Richard Leo Turner, Johnny B. Boaldin and Verne E. Moore.

Before TACHA and BARRETT, Circuit Judges, and BROWN, Senior District Judge. *

WESLEY E. BROWN, Senior District Judge.

This civil rights action arose from the efforts of the Fry family to open a section line service road along land which they own or occupy in Baca County, Colorado. The defendant-appellees are the Baca County Board of County Commissioners, its individual commissioners Self, Brinkley, and Smith, in their official capacities, and three landowners in the area, Turner, Boaldin and Moore. Commissioners Brinkley and Smith were also named as defendants in their individual capacities. 1

In this action plaintiffs claim the right to damages and injunctive relief under 42 U.S.C. § 1983. The Frys alleged that the defendant commissioners and landowners jointly conceived and executed a plan to vacate the road in question in retaliation for plaintiffs' exercise of First Amendment rights, and in violation of their rights to due process and equal protection of the laws.

Prior to trial, the district court granted summary judgment in favor of the commissioners on claims asserted against them as officials, and as individuals. 837 F.Supp. 330. A jury trial began March 2, 1992, and on March 9, the district court entered a final judgment dismissing all remaining claims against all remaining defendants, pursuant to Rule 50, Fed.R.Civ.P. 2 The court also denied defendant motions for attorney fees and costs.

In this appeal the Frys contend that the district court erred in concluding that there was insufficient evidence to establish that they were deprived of a constitutional right, or for the jury to find that defendant landowners acted under color of state law. They also claim that the court erroneously concluded that plaintiffs' claims were barred by collateral estoppel, that the defendant commissioners sued in their individual capacities were entitled to absolute immunity, and that the plaintiffs Lisa and Dallas Fry lacked standing to complain of any direct injury to their constitutional rights.

In cross appeals, the defendants contend that they are entitled to fees and costs under 42 U.S.C.A. § 1988.

The standard of review of the court's order sustaining the motion for directed verdict under Fed.R.Civ.P. Rule 50 is de novo, applying the same rule applied by the district court. Rajala v. Allied Corp., 919 F.2d 610, 615 (10th Cir.1990), cert. den. --- U.S. ----, 111 S.Ct. 1685, 114 L.Ed.2d 80. The question then is whether there was evidence upon which the jury could return a verdict against defendants.

In order to evaluate this issue, we have reviewed the undisputed facts which appear in the record.

Under the name Fry Land & Cattle Company, plaintiffs Dewayne and Luella Fry own approximately 4,930 acres of land in Cimarron County, northern Oklahoma, which runs along the boundary line of the state of Colorado. A part of this land is irrigated and used to grow alfalfa, wheat, and cattle feed, and the rest is used for grazing. In April, 1985, the Frys signed a contract to buy the SW 1/4 of Section 5 and the W 1/2 of Section 8, Township 35 South, Range 41 West in Baca County, Colorado, and the land was conveyed to them on February 11, 1986. Dewayne Fry and his wife live on the Oklahoma land, and their son Dallas Fry and his wife, Lisa Fry, live on the Colorado land. Dallas and Lisa Fry have no ownership interest in the Colorado land.

When the Frys purchased the land, there was no established road directly connecting the Colorado land to the Oklahoma farming operations. Most of the Fry farming equipment is stored in Oklahoma and transported to the Colorado land as needed.

No roads cross the Cimarron River in this part of Baca County, known as the "cut-off," and the area is sparsely populated with only two "full-time" residents. Nonresidents do own land and actively farm in that area, however, and many of them live over the Colorado line in Morton County, Kansas. 3

The Frys do have access to the Colorado land along County Road No. 57, which extends east from Frys' Colorado land about 2 miles, and then moves south to the Oklahoma line, then east again along the Colorado/Oklahoma and Kansas/Oklahoma borders, then south along the Cimarron County/Texas County Oklahoma line, then back west about 5 miles to Frys' Oklahoma headquarters. The distance along this route is 12.3 miles. (Vol. VII Appellants' Appendix, p. 1614).

Shortly after the Colorado purchase, the Frys began an effort to establish a road along section lines from their operation in Oklahoma directly to the Colorado land. If this road had been opened, the travel distance between the two properties would have been 5.2 miles.

In September, 1985, the Frys were advised that the Baca County Commissioners would not allow the road to be opened without the consent of affected landowners. On October 31, 1985, Dewayne Fry filed an action in the Baca County District Court against the Board of County Commissioners. Fry v. Board of Commissioners et al., Case No. 85 Civ. 79. In this case, Fry sought a declaratory judgment that a resolution, passed by the county board in 1911, had already designated all section lines in Baca County as county roads, thus creating a roadway connecting the two farms. In January, 1986, that complaint was amended to add as additional party defendants the three landowners who are defendants here, Johnny B. Boaldin, Richard Turner, and Verne Moore. 4

Apparently, before 1985, the Frys had generally good relationships with the defendant landowners, but this amity ceased soon after they purchased the Colorado land. In July, 1985, Dewayne and Luella Fry sued defendant Moore and his wife in the District Court of Cimarron County, Oklahoma, alleging that they had breached an agreement to give the Frys a right of way across Section 18 in Baca County, Colorado. 5 Defendant Turner had wanted to purchase the Colorado farm and felt "betrayed" when the Frys outbid him for the property in 1985. Turner believed that the Frys owed him about $20,000 through trades for wheat seed and hay over several years. The Frys and Turner had had a dispute over a new gas pipeline that Turner wanted to build in November, 1985; and Turner shut off and dug up the gas valve (which was on his property) so the Frys could no longer hook into it. Defendant Boaldin is defendant Moore's stepson. He was upset when the Frys sued the Moores. Boaldin also felt that Fry owed him money for cutting wheat in 1974-75, and there was a dispute between them over a fence and a survey. Boaldin felt that Fry owed him about $1,700. Boaldin also maintained a fence on the section line in question.

On April 30, 1986, several individuals, including the defendants Turner, Boaldin, and Moore, filed a petition with the Baca County Board of Commissioners, in which they sought to vacate approximately 40 miles of section line roads throughout Baca County, including the section line road which the Frys proposed to use as an access to their Colorado property. 6 On July 7, 1986, the county commissioners adopted a resolution denying the petition to vacate the roads. 7

Meanwhile, during the summer of 1986, a heated election campaign was conducted when defendant Don Self ran for re-election as a county commissioner. Written articles concerning the section line roads were published in local newspapers, and petitions were circulated in the county by the Frys and others opposing the re-election of Self, and by the defendant landowners and others supporting his re-election. The commissioners were angry over statements made by the Frys, and the defendant landowners discussed the newspaper articles with Commissioners Self and Brinkley, stating that they believed the articles were defamatory. 8 On August 12, 1986, Commissioner Self was declared the winner of the primary election.

On November 13, 1986, the state district court issued an order granting partial summary judgment in Case No. 85CV79 in favor of Dewayne Fry. The court declared that a public highway existed 30 feet on either side of the section lines in Sections 17 and 18, and Sections 7 and 8 along Fry's property, as well as 30 feet along Section 18, north of the state line. The order restrained all defendants from interfering with the use of the highway by Fry and the public and required the defendant landowners to remove all fences they had constructed along the highway. 9 Prior to this time, the road had been bladed by the plaintiffs; and on November 13, 1986, they began using the route.

On December 18, 1986, landowners Turner, Moore, and Boaldin filed a second petition with the Baca County Commissioners to vacate about 3 1/2 miles of section line roadways. 10 On December 31, there was a public hearing on the petition, and on that date a resolution...

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