Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-02460-JLK

Document 83

Filed 11/01/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.: 00-K-2460 TOM REYNOLDS, and DEBBIE REYNOLDS Individually and ENERGY PLUS INC. A COLORADO CORPORATION Plaintiffs, vs. Q U A R T E R C I R C L E M R A N C H , I N C . a n d M U E L L E R R A N C H H O M EOWNERS ASSOCIATION, INC., A COLORADO NONPROFIT CORPORATION; and RANDY WITTE, DIRECTOR, PRESIDENT, OF MUELLER RANCH HOMEOWNER ASSOCIATION, INC.; and POLLY MUNSON, DIRECTOR, MEMBER OF THE ARCHITECTURE CONTROL COMMITTEE, OF MUELLER RANCH HOMEOWNER ASSOCIATION, INC.; and PAT JAHNER, DIRECTOR, and SECRETARY, OF MUELLER RANCH HOMEOWNER ASSOCIATION, INC.; and MARSHA WITTE, TREASURER, OF MUELLER RANCH HOMEOWNER ASSOCIATION, INC. and PHRED JAHNER, MEMBER OF THE ARCHITECTURE CONTROL COMMITTEE, OF MUELLER RANCH HOMEOWNER ASSOCIATION, INC. and ELLEN CORDIONIERE, MEMBER OF THE ARCHITECTURE CONTROL COMMITTEE, OF MUELLER RANCH HOMEOWNER ASSOCIATION, INC. and WILLIAM A. MUNSON, MEMBER OF THE ARCHITECTURE CONTROL COMMITTEE, OF MUELLER RANCH HOMEOWNER ASSOCIATION, INC. and JOHN A. McKNIGHT, MEMBER OF THE ARCHITECTURE CONTROL COMMITTEE, OF MUELLER RANCH HOMEOWNER ASSOCIATION, INC. Defendants. PLAINTIFFS' RESPONSE OPPOSING MUELLER RANCH HOA'S ATTORNEYS' FEES AND COST

COMES NOW the Plaintiffs, Tom Reynolds and Debbie Reynolds by and through their attorney, Gwendolyn F. Stokes, and hereby submits their response opposing the granting of HOA's attorney fees and cost, and for their cause states as follows: 1. This case has been the subject of protracted litigation.

Case 1:00-cv-02460-JLK

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2.

In this case Plaintiffs sought injunctive relief and damages against the Mueller Ranch

Homeowners Association, Inc (HOA) and certain members individually, claiming racial discrimination, under the Federal Fair Housing laws, violation of Colorado Fair Housing laws, Infliction of Emotional Distress, and Negligence. 3. After a hearing on a motion by the HOA to dismiss for lack of jurisdiction, on

January 17, 2001, the Court entered an Order, dated January 19, 2001, dismissing the complaint with prejudice. (See Exhibit 1, Civil Docket for Case # 00-CV-2460, Number 11) 4. On 2/23/01, Plaintiffs appealed and on December 18, 2001, the Tenth Circuit

reversed the decision and remanded the case back to this Court for further proceeding consistent with its holdings. (See Exhibit 1, Civil Docket for Case # 00-CV-2460, Number 14 and 18 ) 5. On 8/22/02, Defendants filed for summary judgment and that motion was denied on

9/2/03. (See Exhibit 1, Civil Docket for Case # 00-CV-2460, Number 31 and 47) 6. In general in civil cases, 42 U.S.C. § 1988(b), the prevailing party is entitled to

attorney fees and cost and the losing party is not. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). 7. Plaintiffs contend that they were the prevailing party for actions and items that appear

on the itemized list of charges. 8. To wit, Defendants itemized Client Leger Report Number 1 ($5,399.04) (see Exhibit

2, Tabs3 Client Leger Report, Kelly/Haglund/Garnsey/ + Kahn LLC) represents work that was done on portions of the case that Defendants lost when the 10 th Court of Appeals reversed Judge Cain's decision of 1/19/01.

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9.

Additionally, Itemized Client Leger Report Numbers 24, 26-27,29-30 ($28,796.26)

(see Exhibit 2, Tabs3 Client Leger Report, Kelly/Haglund/Garnsey/ + Kahn LLC) represents work done on Defendants summary judgment filed on 8/22/02 and denied on 9/2/03. 10. The total amount of attorney fees associated with work done on pleading and

responses that Defendants lost is $34,195.30 WHEREFORE, Plaintiffs respectfully request that this Court deny the above-mentioned attorney fees and costs to the Defendants

RESPECTFULLY SUBMITTED on this

1st

day of November, 2005

By: A duly signed original is on file at the office of Gwendolyn F. Stokes _____________________________ Gwendolyn F. Stokes, #20506 Attorney for the Plaintiffs 1749 8th Street, Suite 3 Colorado Springs, CO 80906 (719) 632-1118

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CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing Plaintiffs Motion Opposing Defendant's Motion For Attorney Fees was placed in the U.S. Mail postage prepaid on November 1, 2005, addressed as follows:

Edwin S. Kahn
Kelly/Haglund/Garnsey & Kahn LLC 1441 18th Street Suite 300 Denver, CO 80202 Attorneys for HOA

Jeffrey J. Richards, Esq. Anstine, Hill, Richards & Simpson 899 Logan Street, #406 Denver, CO 80203 Attorney for Defendants Phred and Pat Jahner

Rita Booker, Esq. Harris Karstadt Jamison & Powers P.C. 383 Inverness Drive, Suite 400 Englewood, Colorado 80112 720-875-9140 Attorney for Defendant Ellen Cordonier

A duly signed original is on file at the office of Gwendolyn F. Stokes ___________________________________