HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, et al, v. Council of the City of Fort Collins - 014 - Solitaire Response Mot Enlargement w Exhibit (2)DISTRICT COURT, LARIMER COUNTY,
COLORADO
201 La Porte Ave., Suite 100
Ft. Collins, Colorado 80521
____________________________________
720.865.8307
Plaintiffs:
Sanctuary Field Neighborhood Network, a
Colorado nonprofit corporation; and Miranda
Spindel;
v.
Defendant:
Council of the City of Fort Collins; and
Intervenors Solitaire Homes East, LLC and
Solitaire Homes, LLC
COURT USE ONLY
Counsel for Solitaire Homes East, LLC and
Solitaire Homes, LLC
Andrew J. Petrie, #11416
Andrew Valencia, #54691
BALLARD SPAHR LLP
1225 17th St., Ste. 2300
Denver, CO 80202
(303) 292-2400
petriea@ballardspahr.com
valenciaa@ballardspahr.com
Case Number: 2022CV30661
Division 5A Courtroom
SOLITAIRE’S OPPOSITION AND RESPONSE TO PLAINTIFFS’ MOTION FOR
ENLARGEMENT OF TIME
Solitaire Homes East, LLC and Solitaire Homes, LLC (collectively “Solitaire”)
oppose Plaintiffs’ Motion for Enlargement of Time to File Opening Brief (“Motion for
Enlargement”) for the following reasons:
DATE FILED: January 27, 2023 8:39 AM
FILING ID: B684534472389
CASE NUMBER: 2022CV30661
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SUMMARY OF SOLITAIRE’S POSITION
Without communicating with any party or the Court, Plaintiffs blithely missed the
January 3, 2023 deadline to file their C.R.C.P. 106(a)(4)(VII) opening brief. It was not,
however, until January 24, 2023, that Plaintiffs for the first time presented an untimely
request for relief from the filing deadline they had blown.
This Court should deny Plaintiffs’ untimely request. Plaintiffs’ Motion is devoid of
the required factual detail that would establish any basis for an argument that their
failure to meet the filing deadline was the result of excusable neglect. To the contrary, it
shows Plaintiffs’ failure to make a timely filing was the result of mere carelessness or
negligence. Moreover, granting the request will substantially prejudice Solitaire, where
this pending action interferes with its ability to proceed with the necessary steps to
advance its development plan.
CERTIFICATION OF COUNSEL
Late in the work day on January 24, 2023 (at 4:07 p.m.), counsel for Plaintiffs left
a voicemail with undersigned counsel regarding Plaintiffs’ request for an enlargement of
time. Plaintiffs’ counsel did not, however, provide sufficient detail for Solitaire to assess
the request and Plaintiffs filed their Motion for Enlargement shortly thereafter (at 4:19
p.m.), thereby depriving the Parties of any meaningful opportunity to confer in good faith
as C.R.C.P. 121 §1-15(8) requires. For the reasons set forth below, Solitaire opposes
the requested relief.
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BACKGROUND
1. On October 4, 2022, Plaintiffs filed their Complaint for Judicial Review
Pursuant to C.R.C.P. 106(a)(4).
2. On November 22, 2022, the Council for the City of Fort Collins (“City of
Fort Collins”) certified the record in accordance with C.R.C.P. 106(a)(4). Therefore,
pursuant to C.R.C.P. 106(a)(4)(VII), Plaintiffs were required to file their opening brief by
January 3, 2023.
3. On December 6, 2022, this Court granted Solitaire’s Motion to Intervene.
4. Plaintiffs did not file their opening brief on January 3, did not request an
extension of time from this Court, and did not discuss with counsel for Solitaire or the
City of Fort Collins any personal scheduling complications that would have impacted
their ability to meet the January 3 deadline to file their opening brief.
5. Proving, however, that Plaintiffs’ counsel was fully engaged at that time, in
the week following the expiration of that deadline Plaintiffs’ counsel reached out to
defendants, on January 6 and 10, 2023, regarding the costs associated with the City of
Fort Collins’ preparation of the record. [Attached hereto as Exhibit A are true and
correct copies of Plaintiffs’ counsel’s January 6 and 10, 2023 emails]. Although they had
already missed the filing deadline and their brief was late, Plaintiffs did not mention any
issues that had interfered with their ability to timely file their opening brief on January 3.
6. On January 24, 2023, Plaintiffs filed their Motion for Enlargement without
conferring in good faith and without serving the Motion on Solitaire.
7. Relatedly, while Plaintiffs have also filed a claim for declaratory relief, they
have not undertaken any of the required C.R.C.P. 16 case management actions to
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prosecute that claim where their counsel is the C.R.C.P. 16(b)(2) responsible attorney,
and they have not made any effort to seek this Court’s determination as to the manner
and timing of proceeding with respect to all claims as C.R.C.P. 106(a)(4)(VI) directs.
A. Plaintiffs Fail to Demonstrate Excusable Neglect
Under C.R.C.P 6(b)(2), a court may, for cause shown, “extend the time for
accomplishing an act required or permitted by the [civil]” rules … on, among other
things, a showing of excusable neglect.” Brown v. Walker Commercial, Inc., 2022 CO
57, ¶ 19. The word “may” makes this a discretionary exercise upon a showing of
excusable neglect, and not a requirement. See, e.g., C.R.S. § 2-4-401(13.7)(a) (“‘Shall’
means that person has a duty.”); In re Marriage of Mack, 2022 CO 17 ¶ 24 (the word
“shall” signals a mandate). Plaintiffs have shown zero basis on which this Court should
exercise that discretion.
Under C.R.C.P. 6(b)(2), Colorado courts define excusable neglect as a failure to
act due to “circumstances which would cause a reasonably careful person to neglect a
duty.” Farmers Ins. Group v. District Court, 507 P.2d 865, 867 (Colo. 1973).
Circumstances constituting excusable neglect “involve unforeseen occurrences such as
personal tragedy, illness, family death, destruction of files … which would cause a
reasonably prudent person to overlook a required deadline ….” Id. However, a “failure to
act due to carelessness and negligence is not excusable neglect.” Id. It is the Plaintiffs’
burden to demonstrate that their failure to meet the filing deadline was due to excusable
neglect. Id. They fail to do so.
Plaintiffs’ Motion for Enlargement is devoid of sufficient factual detail as would be
necessary to establish the existence of excusable neglect. While Plaintiffs’ counsel
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generally alleges that he experienced a family illness and a separate family emergency,
he makes no allegations demonstrating how the purported emergencies caused him to
neglect or overlook the January 3 filing deadline. Pls’ Mot. for Enlargement ¶¶ 8-9.
Indeed, Plaintiffs’ counsel fails to identify any dates on which the alleged incidents
occurred and thereby necessitated the need to extend the original filing deadline. Even
as late as January 10, 2023 – 7 days after the filing deadline – Plaintiffs’ counsel
corresponded with Defendants regarding the record in this matter without any mention
of some exigent circumstance that would have caused him to miss the filing deadline.
[Exhibit A].
Plaintiffs’ failure to establish excusable neglect is further demonstrated by
Plaintiffs’ lack of diligence when seeking an enlargement of time. Plaintiffs’ counsel did
not email or call regarding his scheduling emergency at or near the time of the filing
deadline. Presumably, Plaintiffs’ counsel was aware of the circumstances causing him
to miss the January 3, 2023 deadline in advance of the deadline or else he plainly would
not have good cause for missing that deadline. Yet, he made no effort in December or
early January to discuss some need for more time. And, despite corresponding with
counsel for the City of Fort Collins and Solitaire regarding payment for certification of
the record on January 6 and10, 2023, demonstrating he was engaged and aware of the
status of this action, Plaintiffs’ counsel did not raise any issue with the timing of the filing
of the opening brief until less than 15 minutes before he filed the Motion for
Enlargement on January 24, 2023. Plaintiffs’ lack of diligence in seeking the
enlargement demonstrates a lack of true, excusable neglect.
6
B. Granting Plaintiffs’ Request Will Prejudice Solitaire
On September 6, 2022, the City Council of Fort Collins affirmed Solitaire’s
development plan to build a housing community, which includes a trail system and
community center, on approximately 41 acres of vacant land located at the northwest
corner of La Porte Avenue and North Taft Hill Road in the City of Fort Collins.
Solitaire invested significant resources in the development of the plan the City of
Fort Collins approved. Moreover, Solitaire must continue to invest significant resources
proceeding with engineering and planning updates incorporated into its final
development plan, which it must submit to the City of Fort Collins under code imposed
deadlines. If those deadlines are not met, Solitaire will lose its original development plan
approval and must reset its development plan process with the City of Fort Collins.
With the delay, and the attendant scarcity of workers in the trade and need to
schedule all construction, the increases in the cost of money as the Federal Reserve
tries to reign-in inflation, and the increased costs of all building materials and
construction services, Plaintiffs are seeking to burden the development by delaying it.
Despite the extensive and expensive steps ahead, Solitaire is unable to proceed with
the necessary steps to obtain final development plan approval and to proceed with the
development due to this lawsuit. Indeed, proceeding with the current development plan
is financially risky and not a viable option in the event this Court were to disagree with
the City of Fort Collins’ decision, and, with such an adverse decision, negate the
development work Solitaire has performed to date.
Delay and uncertainty are Plaintiffs’ intent and goals. On December 31, 2022,
Plaintiff Sanctuary Field Neighborhood Network posted on its website the following:
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“Against all odds, we have successfully stalled a massive development through the
appeal process, and our legal fight is now fully underway.”1 As Rule 106 directs, its
entire purpose is to provide a remedy where there is no plain, speedy and adequate
remedy otherwise provided by law, and, therefore, to provide that plain, speedy and
adequate remedy. The Court should deny Plaintiffs’ request for an enlargement of time
for the lack of any showing of excusable neglect and its interference with the speedy
remedy for which the Rule provides.
CONCLUSION
For all of these reasons, Solitaire respectfully requests that the Court enter its
Order denying Plaintiffs’ untimely request for an enlargement of time to file their opening
brief.
Dated: January 27, 2023.
Respectfully submitted,
Ballard Spahr LLP
/s/ Andrew J. Petrie
Andrew J. Petrie, #11416
Andrew Valencia, #54691
1225 17th St., Ste. 2300
Denver, CO 80202
(303) 292-2400
petriea@ballardspahr.com
valenciaa@ballardspahr.com
Attorneys for Solitaire Homes East, LLC
and Solitaire Homes, LLC
1 https://www.gofundme.com/f/ax23h-sanctuary-field-neighborhood-network-fund
Notably, that site also lists Ms. Spindel as a beneficiary.
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CERTIFICATE OF SERVICE
I hereby certify that on January 27, 2023, the foregoing Solitaire’s Opposition
and Response to Plaintiffs’ Motion for Enlargement of Time was filed via the Courts
electronic notification system, which will send notification of same to all counsel of
record.
/s/ Sherri L. Clark
EXHIBIT A
DATE FILED: January 27, 2023 8:39 AM
FILING ID: B684534472389
CASE NUMBER: 2022CV30661
1
From:Andrew B. Pipes <andrew@frascona.com>
Sent:Tuesday, January 10, 2023 8:14 AM
To:Corey Hoffmann
Cc:Petrie, Andrew J. (Denver)
Subject:RE: Sanctuary Field Neighborhood Network, et al. v. City of Fort Collins, Larimer County
District Court Case No. 2022CV 306611
⚠ EXTERNAL
Essentially confirmation of what has been paid to reconcile the difference between what you are asking to be paid in
addition. Does that make sense?
Andrew B. Pipes, Esq.
Frascona, Joiner, Goodman and Greenstein, P.C.
4750 Table Mesa Drive, Boulder, CO 80305
Main 303-494-3000|Direct 303-539-9231|Fax 303-494-6309
andrew@frascona.com www.frascona.com
Please note, we will never send you wiring instructions via email.
NOTICE: The information contained in this electronic mail message may be attorney privileged or attorney work product, and is, in any
event, confidential information intended only for the use of the individual or entity addressee named above. If you are not the intended
recipient, or the employee or agent responsible for delivery to the intended recipient, you are hereby notified that any dissemination,
distribution, or copying of this communication, and any review, dissemination, distribution, or copying of the accompanying materials is
strictly prohibited. If you have received this communication in error, please immediately notify us by telephone at (303) 494-3000 or
electronic mail and return the original message to us.
From: Corey Hoffmann <cyh@hpwclaw.com>
Sent: Monday, January 9, 2023 7:18 AM
To: Andrew B. Pipes <andrew@frascona.com>
Cc: Petrie, Andrew J. <petriea@ballardspahr.com>
Subject: RE: Sanctuary Field Neighborhood Network, et al. v. City of Fort Collins, Larimer County District Court Case No.
2022CV 306611
Andrew,
The original $425 was an estimate. The attached invoice is for the final cost. You want an invoice for the estimate as
well as the final cost? I’m not sure I understand…
Corey
Corey Y. Hoffmann
Hoffmann, Parker, Wilson & Carberry, P.C.
511 16th Street, Suite 610
Denver, CO 80202
Direct: (303) 951-2094
Main: (303) 825-6444
2
From: Andrew B. Pipes <andrew@frascona.com>
Sent: Friday, January 6, 2023 5:25 PM
To: Corey Hoffmann <cyh@hpwclaw.com>
Cc: Petrie, Andrew J. <petriea@ballardspahr.com>
Subject: RE: Sanctuary Field Neighborhood Network, et al. v. City of Fort Collins, Larimer County District Court Case No.
2022CV 306611
Corey,
Can you send me an invoice for the original $425?
Andrew B. Pipes, Esq.
Frascona, Joiner, Goodman and Greenstein, P.C.
4750 Table Mesa Drive, Boulder, CO 80305
Main 303-494-3000|Direct 303-539-9231|Fax 303-494-6309
andrew@frascona.com www.frascona.com
Please note, we will never send you wiring instructions via email.
NOTICE: The information contained in this electronic mail message may be attorney privileged or attorney work product, and is, in any
event, confidential information intended only for the use of the individual or entity addressee named above. If you are not the intended
recipient, or the employee or agent responsible for delivery to the intended recipient, you are hereby notified that any dissemination,
distribution, or copying of this communication, and any review, dissemination, distribution, or copying of the accompanying materials is
strictly prohibited. If you have received this communication in error, please immediately notify us by telephone at (303) 494-3000 or
electronic mail and return the original message to us.
From: Corey Hoffmann <cyh@hpwclaw.com>
Sent: Monday, October 31, 2022 11:01 AM
To: Andrew B. Pipes <andrew@frascona.com>
Cc: Petrie, Andrew J. <petriea@ballardspahr.com>
Subject: RE: Sanctuary Field Neighborhood Network, et al. v. City of Fort Collins, Larimer County District Court Case No.
2022CV 306611
Andrew,
Thank you. Please send the funds in the amount of $425 to me, and I will make sure it gets to the right place. Thanks.
Corey
Corey Y. Hoffmann
Hoffmann, Parker, Wilson & Carberry, P.C.
511 16th Street, Suite 610
Denver, CO 80202
Direct: (303) 951-2094
Main: (303) 825-6444
From: Andrew B. Pipes <andrew@frascona.com>
Sent: Monday, October 31, 2022 10:22 AM
To: Corey Hoffmann <cyh@hpwclaw.com>
Cc: Petrie, Andrew J. <petriea@ballardspahr.com>
Subject: Re: Sanctuary Field Neighborhood Network, et al. v. City of Fort Collins, Larimer County District Court Case No.
2022CV 306611
3
Hi Corey, we have no objection to paying for preparation of the record.
Andrew B. Pipes, Esq.
Frascona, Joiner, Goodman and Greenstein, P.C.
4750 Table Mesa Drive, Boulder, CO 80305
Main 303-494-3000|Direct 303-539-9231|Fax 303-494-6309
andrew@frascona.com www.frascona.com
Please note, we will never send you wiring instructions via email.
NOTICE: The information contained in this electronic mail message may be attorney privileged or attorney work product, and is, in any event,
confidential information intended only for the use of the individual or entity addressee named above. If you are not the intended recipient, or the
employee or agent responsible for delivery to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this
communication, and any review, dissemination, distribution, or copying of the accompanying materials is strictly prohibited. If you have received this
communication in error, please immediately notify us by telephone at (303) 494-3000 or electronic mail and return the original message to us.
From: Corey Hoffmann <cyh@hpwclaw.com>
Sent: Monday, October 31, 2022 9:52 AM
To: Andrew B. Pipes <andrew@frascona.com>
Cc: Petrie, Andrew J. <petriea@ballardspahr.com>
Subject: Sanctuary Field Neighborhood Network, et al. v. City of Fort Collins, Larimer County District Court Case No.
2022CV 306611
Andrew,
As we discussed briefly, I represent the City of Fort Collins in the above referenced matter. We will be filing the Answer
on behalf of the City tomorrow. However, in the meantime, pursuant to C.R.C.P. 106(a)(4)(IV), the cost of preparing the
record shall be advanced by Plaintiff.
The City estimates the cost of preparing the record to be $425. Please confirm your client will pay this cost of preparing
the record, so the City can commence its preparation. Thank you in advance.
Corey
Corey Y. Hoffmann
Hoffmann, Parker, Wilson & Carberry, P.C.
511 16th Street, Suite 610
Denver, CO 80202
Direct: (303) 951-2094
Main: (303) 825-6444