Evanrich v. Evans

23CA1679 Evanrich v Evans 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1679

Routt County District Court No. 21CV30073

Honorable Michael A. O’Hara III, Judge

Evanrich Investment Holdings LLC and Richard Gaines,

Plaintiffs-Appellees,

v.

Michele Evans and Timothy Evans,

Defendants-Appellants.

JUDGMENT AFFIRMED

Division III

Opinion by JUDGE MOULTRIE

Dunn and Yun, JJ., concur

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

Announced August 22, 2024

Gardner Legal Services, LLC, Matthew R. Gardner, Linton Wright, Boulder,

Colorado, for Plaintiffs-Appellees

Bonifazi & Associates, P.C., Dan Bonifazi, Denver, Colorado, for

Defendants-Appellants

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¶ 1 In this dispute between neighbors, Michele Evans and Timothy

Evans (the Evanses) appeal the trial court’s judgment in favor of

Evanrich Investment Holdings LLC and its principal, Richard

Gaines (collectively, Gaines). We affirm.

I. Background

¶ 2 Gaines and the Evanses own adjacent properties in a covenant

community. Gaines owns Lot 30, and the Evanses own, as relevant

here, Lots 28 and 29. Since 1989, Gaines has used a water

pressure booster pump on Lot 29 to transport water uphill to Lot 30

via a water service line that crosses Lot 29.

¶ 3 In November 2021, Gaines filed a complaint asserting, among

other claims, claims for a declaratory judgment authorizing him to

access the Evanses’ property to install a “meter to the water pump

to support permanent water service to [his] property” and injunctive

relief to prevent the Evanses from interrupting his water service.

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The Evanses filed a counterclaim for a competing declaratory

judgment that Gaines had “no legal or equitable right to access Lots

1

A claim concerning electrical services was dismissed before trial.

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28 and 29” because the Evanses are the legal owners of the water

line.

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¶ 4 The case proceeded to a court trial in September 2022. After

Gaines rested, the Evanses moved to dismiss under C.R.C.P.

41(b)(1). The trial court granted the motion and dismissed Gaines’

claims.

¶ 5 Immediately following the court’s ruling, Gaines orally moved

for reconsideration based on newly discovered evidence. Gaines

asserted that the warranty deed for Lots 29 and 30 — of which the

Evanses were aware — referenced a plat map (the replat) that

showed a water line easement, sewer easement, and driveway

easement. After reviewing the replat, the trial court ordered Gaines

to submit a written motion for relief from the court’s judgment to

provide the Evanses with notice and an opportunity to respond.

¶ 6 Gaines followed with a written motion to amend or vacate the

judgment, and the Evanses filed a response. The trial court granted

Gaines’ motion under C.R.C.P. 60, vacated its dismissal order,

reinstated the parties’ claims, and continued the trial on the

2

The Evanses filed a counterclaim for trespass but dismissed it

before trial.

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“limited issue of the legal implications of the [r]eplat” and the

replat’s associated documents.

¶ 7 In May 2023, the court heard evidence regarding whether the

Evanses had notice of the existence of an easement across their

property. In a written order, the trial court concluded that there

was a water line easement across the Evanses’ property and that

the Evanses “more likely than not” had been aware of its existence.

The court therefore vacated its prior order dismissing Gaines’

claims; granted Gaines a permanent injunction to prevent the

Evanses from interrupting, blocking, or preventing water service

from reaching Gaines’ property; and entered judgment in favor of

Gaines.

¶ 8 On appeal, the Evanses argue that the trial court erred by

(1) reopening the evidence after it granted their motion to dismiss;

(2) granting Gaines’ motion to vacate the judgment under C.R.C.P.

60(b); and (3) addressing Gaines’ easement claim without amending

the pleadings under C.R.C.P. 15(b). We address each contention in

turn.

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II. Reopening Evidence

¶ 9 The Evanses first assert that the trial court abused its

discretion by reopening the evidence after it granted their motion to

dismiss under C.R.C.P. 41(b)(1). We disagree.

A. Additional Relevant Facts

¶ 10 In a written order granting Gaines’ motion to vacate the

judgment and resetting the trial, the court stated it would reopen

evidence on the “limited issue of the [replat’s] legal implications”

and allow Gaines to present “evidence concerning the existence and

knowledge of any relevant easements.” Additionally, the court

stated that the Evanses would “have a full opportunity to present

any admissible evidence that they otherwise would have had at the

original trial” and would “retain their right to argue any motion for

directed verdict and/or present any additional evidence.”

B. Standard of Review and Applicable Law

¶ 11 A trial court may, in its discretion, “permit a party who has

rested to reopen a case for the purpose of presenting further

evidence.” Rocky Mountain Animal Def. v. Colo. Div. of Wildlife, 100

P.3d 508, 519 (Colo. App. 2004). We therefore review for abuse of

discretion. See id. A trial court abuses its discretion if its ruling

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was manifestly arbitrary, unreasonable, or unfair or was based on a

misunderstanding or misapplication of the law. Bd. of Cnty.

Comm’rs v. DPG Farms, LLC, 2017 COA 83, ¶ 34. We will only

reverse a trial court’s evidentiary rulings when they affect a

substantial right of the objecting party. Rocky Mountain Animal

Def., 100 P.3d at 519.

¶ 12 A party seeking to reopen the evidence “must make an offer of

proof as to what specific evidence the party would present and

demonstrate that this evidence would cure any deficiencies in that

party’s case.” Justi v. RHO Condo. Ass’n, 277 P.3d 847, 850 (Colo.

App. 2011). “[I]t is the duty of the trial court to thus reopen a case

whenever the ends of justice can be advanced thereby.” Green v.

Pullen, 115 Colo. 344, 345, 173 P.2d 458, 458 (1946) (quoting

Plummer v. Struby-Estabrooke Mercantile Co., 23 Colo. 190, 194, 47

P. 294, 292 (1896)).

C. Analysis

¶ 13 In his oral and written motions, Gaines described the specific

evidence he sought to present — the replat and associated deeds —

to demonstrate the existence of an easement. See Justi, 277 P.3d at

850. In its oral ruling granting the motion to dismiss, the court

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repeatedly noted that it “received no evidence of any easements”

allowing for the delivery of water across Lot 29. Therefore, Gaines’

proposed additional evidence directly contradicted the basis upon

which the trial court granted the Evanses’ motion to dismiss.

¶ 14 In the order vacating the judgment, the court stated that its

judgment “was based on an incomplete and incorrect set of facts.

Specifically whether an easement existed or not.” Thus, reopening

the evidence facilitated the court’s ability to determine the action.

See id. at 850-51.

¶ 15 The Evanses argue they were not given the opportunity to

present a defense and, thus, were prejudiced. We reject this

argument.

¶ 16 When Gaines orally moved for reconsideration, the Evanses

objected. Because the trial court recognized the potential prejudice

presented by Gaines’ oral motion for reconsideration, it ordered the

parties to submit written briefs so that the Evanses had an

adequate opportunity to respond. And the record reflects that the

Evanses were afforded the opportunity to question Gaines’

witnesses, call their own witnesses, and present other evidence in

support of their position at the May 2023 trial.

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¶ 17 Accordingly, we conclude that the trial court did not abuse its

discretion by reopening the evidence.

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III. Rule 60(b) Motion

¶ 18 The Evanses next argue that the trial court abused its

discretion by granting Gaines’ C.R.C.P. 60(b) motion to vacate the

judgment. Specifically, the Evanses challenge the court’s findings

of excusable neglect by Gaines’ counsel and misrepresentation by

the Evanses and their counsel.

A. Additional Relevant Facts

¶ 19 In its order granting the motion to vacate the judgment,

4

the

court found that the failure of Gaines’ counsel to discover the replat

before trial was excusable neglect. The court also found that the

Evanses misrepresented the legal status of the water service line

and the “access rights to the lots in question, [which] caused an

3

We further reject as conclusory the Evanses’ argument that the

trial court was “likely swayed” by Gaines presenting the replat. See

Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App.

2007) (declining to address underdeveloped arguments).

4

Gaines also moved for a new trial under C.R.C.P. 59. The trial

court did not rule on the motion within sixty-three days. Therefore,

by operation of law, the motion was deemed denied. See C.R.C.P.

59(j).

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irregularity in the proceedings that clearly impacted the ruling of

the court.”

B. Standard of Review and Applicable Law

¶ 20 Absent a showing of an abuse of discretion, we will not disturb

a trial court’s ruling on a C.R.C.P. 60(b) motion to set aside a

judgment. Singh v. Mortensun, 30 P.3d 853, 856 (Colo. App. 2001);

see also DPG Farms, ¶ 34 (defining abuse of discretion).

¶ 21 Under C.R.C.P. 60(b), and as relevant here, a trial court may

relieve a party from a final judgment for excusable neglect or

misrepresentation by an adverse party. The moving party bears the

burden of establishing the grounds for relief by clear, strong, and

satisfactory proof. Justi, 277 P.3d at 851. By setting aside a

judgment, the court sets the stage for further proceedings in a case.

Affordable Country Homes, LLC v. Smith, 194 P.3d 511, 513 (Colo.

App. 2008).

C. Analysis

1. Excusable Neglect

¶ 22 Trial courts must consider three factors to determine whether

to set aside a judgment due to excusable neglect: (1) whether the

neglect was excusable; (2) whether the moving party has alleged a

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meritorious claim or defense; and (3) whether relief from the

judgment would comport with equitable considerations. Craig v.

Rider, 651 P.2d 397, 402 (Colo. 1982); Taylor v. HCA-HealthONE

LLC, 2018 COA 29, ¶ 33.

¶ 23 The “first factor looks to the cause of the neglect.” Goodman

Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 319 (Colo.

2010). The conduct of a party’s attorney constitutes excusable

neglect when the surrounding circumstances would cause a

reasonably prudent person to overlook a required act in the

performance of some responsibility. Guevara v. Foxhoven, 928 P.2d

793, 795 (Colo. App. 1996). Common carelessness and negligence

by the party’s attorney do not amount to excusable neglect. Id.;

Goodman Assocs., 222 P.3d at 319.

¶ 24 Here, the trial court found counsel’s failure to locate the replat

before trial was excusable because, among other things, counsel

had reasonably relied on a chain of title search that didn’t include

the replat.

¶ 25 It was not disputed that the replat and associated documents

didn’t appear in the chain of title for Gaines’ property. Indeed, part

of the Evanses’ argument against excusable neglect was that the

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replat was available in the public domain, regardless of whether it

was in Gaines’ chain of title. But the assertion that Gaines could

have found the documents in the public domain doesn’t render the

trial court’s excusable neglect determination manifestly arbitrary,

unreasonable, or unfair. See Collins v. Scott, 943 P.2d 20, 22 (Colo.

App. 1996) (noting that documents outside the chain of title do not

generally provide notice of interests affecting property). Thus, we

discern no abuse of discretion in the trial court’s excusable neglect

determination.

¶ 26 The second factor requires the moving party’s asserted

meritorious claim or defense to “be supported by factual allegations,

not just legal conclusions.” Goodman Assocs., 222 P.3d at 319.

The circumstances (if any) under which Gaines could have access

across the Evanses’ property were at the heart of his claims. As the

moving party, he produced new information suggesting the

possibility of an easement, thereby showing his claims were

potentially meritorious.

¶ 27 Lastly, in determining whether relief would be consistent with

equitable considerations, a trial court should consider

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the promptness of the moving party in filing

the [R]ule 60(b) motion, the fact of any

detrimental reliance by the opposing party on

the order or judgment of dismissal, and any

prejudice to the opposing party if the motion

were to be granted, including any impairment

of that party’s ability to adduce proof at trial in

defense of the claim.

Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1116. These

considerations are analyzed in light of our preference for resolving

cases on the merits. McMichael v. Encompass PAHS Rehab. Hosp.,

LLC, 2023 CO 2, ¶ 17 (citing Craig, 651 P.2d at 402).

¶ 28 As the trial court found, counsel for Gaines promptly informed

the court about the replat and associated documents shortly after

the evidence was discovered. Additionally, the Evanses were on

notice that Gaines would file a C.R.C.P. 60(b) motion, and, beyond a

conclusory statement, the Evanses do not assert they detrimentally

relied on the judgment of dismissal, nor does the record indicate

that they did. Finally, the Evanses were not prejudiced by the court

vacating the judgment because the court specifically provided that

the Evanses would “be able to set forth their arguments as to the

legal effect of the Replat and the validity of the easement described

therein.” Therefore, in light of the preference for resolving cases on

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their merits, we conclude the trial court’s relief was consistent with

equity. Accordingly, we conclude that the trial court did not abuse

its discretion in finding excusable neglect under C.R.C.P. 60(b)(1).

2. Misrepresentation

¶ 29 The Evanses also challenge the trial court’s finding that they

misrepresented the existence of a water line easement. Because we

have concluded that the trial court didn’t abuse its discretion in

finding excusable neglect, we decline to address this argument. See

Stor-N-Lock Partners # 15, LLC v. City of Thornton, 2018 COA 65,

¶ 38 (“An issue is moot when the relief sought, if granted, would

have no practical effect on an existing controversy.”).

IV. Unpled Easement Claim

¶ 30 The Evanses also assert that the trial court erred by finding an

easement existed when Gaines did not allege the existence of an

easement in his complaint, and the court did not require

amendment of the pleadings under C.R.C.P. 15(b) to include an

easement claim. We discern no error.

A. Standard of Review and Applicable Law

¶ 31 We review a court’s adjudication of issues not presented in the

pleadings for an abuse of discretion. See Bittle v. CAM-Colo., LLC,

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2012 COA 93, ¶ 41; see also 6A Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 1493 (3d

ed. database updated June 2024) (“The decision whether the issue

has been tried by express or implied consent is a matter within the

trial court’s discretion and will not be reversed except upon a

showing of abuse.”).

¶ 32 Rule 15(b) states that issues not raised by the pleadings may

be “tried by express or implied consent of the parties” and treated

“in all respects” as though they had been raised in the pleadings. A

failure to amend the pleadings won’t affect the result of the trial on

those issues. Id.

¶ 33 Furthermore, “[t]he purpose of Rule 15(b) is to allow litigation

to be determined on the merits and not to be limited to the strict

parameters of the pleadings.” Am. Nat’l Bank of Denver v. Etter, 28

Colo. App. 511, 516, 476 P.2d 287, 289 (1970). But before the

court may consider an unpled issue, it must appear that the issue

was deliberately presented at trial and that there is no reasonable

doubt that the issue was intentionally and actually tried by the

parties. Maehal Enters., Inc. v. Thunder Mountain Custom Cycles,

Inc., 313 P.3d 584, 588 (Colo. App. 2011).

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B. Analysis

¶ 34 The Evanses argue that Gaines was required to make a written

or oral motion to amend under C.R.C.P. 15(b). We reject this

argument.

¶ 35 Rule 15(b) explicitly authorizes amendment of the pleadings by

implied consent of the parties. And a trial court “has the duty to

consider an issue raised by the evidence even if the matter was not

pled and no formal application was made to amend.” Bittle, ¶ 43;

see Mullins v. Med. Lien Mgmt., Inc., 2013 COA 134, ¶ 29.

¶ 36 Gaines did not move to amend the pleadings to conform to the

evidence under C.R.C.P. 15(b), and the Evanses objected to the lack

of formal amendment of the pleadings. But we conclude that the

record demonstrates that the issue of whether an easement existed

was intentionally and sufficiently raised during the proceedings by

both parties such that we can infer the parties’ consent to address

that issue. The record shows the following:

• Gaines’ complaint asserted the Evanses’ unilateral

decision to terminate “water service and block access

[was] an infringement on [Gaines’] right to the use of his

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property and the easement granted by the [community]

Covenants.”

• There were competing claims for declaratory judgment

requesting the court determine Gaines’ legal or equitable

rights to access the Evanses’ property in order to support

permanent water supply to Gaines’ property.

• The Evanses affirmatively denied that an easement

existed.

• In its ruling denying the Evanses’ C.R.C.P. 12(b)(5)

motion to dismiss, the court found that the Gaines had

“plausibly state[d] the existence of an easement in

[Gaines’] favor” concerning the water line.

• Gaines’ counsel represented to the court that “there is no

written easement” for water supply across the properties,

and Gaines therefore was requesting permissive “access

and use” of a water line running to his house under the

Evanses’ property. In response, the Evanses argued the

water line “hasn’t met the statutory requirements of an

easement.”

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• In its oral ruling on the Evanses’ C.R.C.P. 41(b)(1) motion

to dismiss, the trial court repeatedly referenced that no

writing existed that would permit Gaines the right to use

or control the water line.

• The Evanses’ counsel repeatedly raised the issue of

whether there was a written easement that would provide

Gaines the right to access and use the water line across

Lot 29 during the September 2022 trial.

• Gaines’ motion to vacate the judgment and the Evanses

response both address whether an easement exists

across Lot 29 for the benefit of Lot 30.

¶ 37 Thus, we conclude that the parties implicitly — if not

explicitly — tried the issue of whether an easement existed, which,

after all, was an issue throughout the case. See Bittle, ¶ 43.

Accordingly, the trial court did not abuse its discretion by

addressing the existence of an easement without formal amendment

of the pleadings.

¶ 38 The Evanses also appear to assert that the trial court’s

conclusion that an easement existed should be reversed. However,

this argument is underdeveloped, and we therefore decline to

17

address it. See Antolovich, 183 P.3d at 604 (declining to address

underdeveloped arguments).

V. Disposition

¶ 39 The judgment is affirmed.

JUDGE DUNN and JUDGE YUN concur.