Metzler v. Ball

Decision Date09 August 2019
Docket NumberCase No. 1:18-cv-02058-DDD-GPG
PartiesNICHOLAS M. METZLER, and TRACY L. METZLER, Plaintiffs, v. WESLEY T. BALL, Defendant.
CourtU.S. District Court — District of Colorado

Judge Daniel D. Domenico


The parties to this dispute are neighbors unable to agree about the legal status of a road, built through one property, but not constructed on a mapped line representing a planned easement for the benefit of the other property. Somewhat to the Court's surprise, the case is properly in federal court pursuant to 28 U.S.C. 1332. (See Docs. 22, 25, 27, 31.) Now before the Court are the parties' fully briefed counter-motions for summary judgment. (Docs. 36, 45, 46, 47, 49, 50.) The Court GRANTS Plaintiffs' motion and GRANTS in part and DENIES in part Defendant's motion.


This quarrel involves two adjacent properties in the More Ranch Subdivision along the Yampa River near Steamboat Springs in Routt County, Colorado. The More Ranch Subdivision Plat Map ("Plat") consists of four lots and was recorded in the real property records of Routt County in 2005.1 Currently, the Metzlers own Lot 1, and Wesley Ball owns Lot 2. Brad Piske formerly owned Lot 2, but sold it to Mr. Ball in 2015.

The Plat describes the legal boundaries of Lots 1 and 2 and provides descriptions for all legally recorded property interests, including easements. At issue here, the Plat identifies "Easement No. 3," marked with a dotted horizontal line crossing Lot 2, as a "35-foot wide access, egress and public utility easement for the benefit of Lot 1, to be located over a newly constructed road at a later date." No road has ever been built across the Easement No. 3 route depicted in the Plat.

Before Mr. Ball purchased Lot 2, however, Mr. Metzler and Mr. Piske discussed the possibility of relocating Easement No. 3,2 and eventually constructed a "14FT-wide gravel access road" ("Road") through Lot 2 on a different path.3 At deposition, Mr. Piske expressed that he had reservations about, but permitted, the Road's creation:

Q. Did you ever object at any time when the road was being built, like hey, I don't want a road across?
A. Well, in the beginning I didn't want a road across the property. But -- because we were for sale but Nick [Metzler] was driving across the property and I didn't want to block his access. And I knew he wanted to build a road while wewere the owners because he knew us. And I remember having that discussion with my wife who also didn't want to build the road and didn't want to spend the money. I didn't want the construction while we were under -- while we were trying to sell the property but, you know, like I said I didn't -- I understood.

He testified that there was "no way" a road could be built to track the straight-line path designated as Easement No. 3 on the Plat because that area is wetland. As he further explained in an e-mail, the Road was built to be a permanent easement:

The process required Army Corps of Engineering and gravel-haul permits, wetlands mapping, site meetings with Corps officials and hydrologists and three build seasons to complete. It demanded a 3-foot excavation of the entire length, liner installation and backfill from screened materials, all while remaining outside of wetlands fill violations. The culvert crossing was permissible because it was constructed on an old crossing for hay equipment already in existence. . . . [T]he existing road was basically overbuilt for permanence as an easement, and was done with thorough knowledge of the property through years of use in all seasons.

He also stated that the Road was indeed the easement contemplated by the Plat:

Q. Then you and Mr. Metzler worked together to build a road across Lot 2 to get to Lot 1?
A. Correct.
Q. That was the access to Lot 1 contemplated in the plat, right?
A. Correct.

But he also testified that he and Mr. Metzler did not have an agreement to form an easement at the location of the Road concurrent with the sale to Mr. Ball. Nor did Mr. Piske, Mr. Metzler, or Mr. Ball ever execute a written document reflecting therelocation of any easement or the establishment of a new one, even though Mr. Metzler requested that Mr. Piske do so.

In January 2015, Mr. Ball entered into a contract to purchase Lot 2 from Mr. Piske. On February 6, an "improvement survey" was completed on behalf of Mr. Piske ("Survey"). The Survey depicts both the straight-line Easement No. 3, as reflected in the Plat, and the Road, designated as a separate "proposed 40' wide access, egress and public utility for benefit of Lot 1."

On April 2, Mr. Ball closed on Lot 2. On April 6, he recorded a general warranty deed, which reflects that he took the property subject to exceptions, including certain recorded easements and "matters disclosed on improvement survey plat issued by Four Points Surveying and Engineering certified February 15, 2015," including the Road. Mr. Ball nonetheless has always opposed any suggestion that an easement exists at the location of the Road. On April 7, Mr. Ball sent Mr. Metzler a letter further explaining his position that there is no easement tracking the Road. Despite his legal position, Mr. Ball has never blocked the Metzlers from using the Road.

On June 28, 2018, the Metzlers filed this action in the Colorado District Court for Routt County. Mr. Ball removed it here, invoking the Court's diversity jurisdiction.4 The Metzlers seek (1) a declaration that Easement No. 3 has beenrelocated to the location of the Road ("Claim One"); (2) a declaration that an easement by estoppel has been created over the location of the Road ("Claim Two"); and (3) damages for Mr. Ball's alleged tortious interference with their easement rights ("Claim Three"). All claims sound in Colorado law. The Metzlers now seek summary judgment only on Claim One. Mr. Ball counter-moves for summary judgment on all claims—asserting that they are barred by the statute of limitations, that Claim One is additionally barred by the statute of frauds, and that Claim Two further fails for lack of a prima facie showing.


The purpose of a summary judgment motion is to assess whether trial is necessary.5 White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A fact is material if it could affect the outcome of the suit under governing law; a dispute of fact is genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. If a reasonable juror could not return a verdict for the nonmovingparty, summary judgment is proper and there is no need for a trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the moving party bears the burden of demonstrating no genuine issue of material fact exists. Adamson, 514 F.3d at 1145.

In deciding whether the moving party has carried its burden, courts do not weigh the evidence and instead must view it and draw all reasonable inferences from it in the light most favorable to the non-moving party. Adamson, 514 F.3d at 1145. But neither unsupported conclusory allegations nor mere scintillas of evidence are sufficient to create a genuine dispute of material fact on summary judgment. Maxey v. Rest. Concepts II, LLC, 654 F. Supp. 2d 1284, 1291 (D. Colo. 2009). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, a court may . . . consider the fact undisputed for the purposes of the motion." Fed. R. Civ. P. 56(e)(2).

A. Threshold Matters
1. Justiciability of Tort Claim

The Metzlers' third claim is for "Tortious Interference with Easement Rights," which the Court cannot locate by name in Colorado law. (See Doc. 3, at 5.) The claim merely alleges that "Defendant Ball's assertions and actions interfered with the [Metzlers'] easement rights and created a cloud on the title to Lot 1," a threadbare assertion inviting speculation on the legal theory advanced and conduct underlying it. The claim is an example what some courts have called a "shotgun complaint," one which "fails to link adequately a cause of action to its factualpredicates," or which combines multiple theories of relief into a single claim. D.R. Horton, Inc. v. Curb N., Inc., No. 07-cv-709, 2008 WL 11409168, at *2 (D.N.M. Sept. 22, 2008).6

Nowhere is the effect of this pleading ambiguity more glaring than in the Metzlers' response to Mr. Ball's motion on Claim Three. Their argument, in their own brief, wavers around what they call "factual disputes" on claim accrual, which effectively demonstrate their failure to state any version of a tort claim:

Ball has never obstructed the Easement, meaning there was no direct risk to the Metzlers' access or title. And as noted above, the mere perception of a risk is not enough to cause a claim to accrue under Colorado law. Therefore, the Metzlers' 2015 letters do not constitute evidence of accrual.

(Doc. 49, at 10 (emphasis supplied).) Using their words, the Metzlers filed "on the mere perception of risk" and this "is not enough to cause a claim under Colorado law." See, e.g., Jessee v. Farmers Ins. Exchange, 147 P.3d 56, 59 (Colo. 2006) ("The Supreme Court will not consider uncertain or contingent future matters"); Texas v. United States, 523 U.S. 296, 300 (1998) ("A claim is not ripe for adjudication if itrests upon contingent future events that may not occur as anticipated, or may not occur at all.").

The claim appears not to be late, as Mr. Ball argues, but if anything, premature. The proper course, therefore, is to dismiss Claim Three, not on statute of limitations grounds as Mr. Ball requests, but for lack of subject matter jurisdiction. New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir. ...

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