Petition for Writ of Certiorari — Lee Mulcahy, Petitioner v. Aspen Pitkin County Housing Authority

App. 1

APPENDIX A

2016CA1351 Aspen v Mulcahy 09-14-2017

COLORADO COURT OF APPEALS

Court of Appeals No. 16CA1351 Pitkin County

District Court No. 15CV30150 Honorable

Christopher G. Seldiri, Judge

Aspen/Pitkin County Housing Authority, a

Colorado multi-jurisdictional housing authority,

Plaintiff-Appellee,

V.

Edward Lee Mulcahy, Jr,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE WELLING

Dailey and Hawthorne, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R.

35(e)

Announced September 14, 2017

Thomas Fenton Smith, Basalt, Colorado, for

Plaintiff-Appellee

App. 2

Haddon, Morgan and Foreman, P.C., Norman R.

Mueller, Ty Gee, Adam Mueller, Denver, Colorado,

for Defendant-Appellant

DATE FILED: September 14, 2017 CASE

NUMBER: 2016CA1351

¶ 1 Defendant, Edward Lee Mulcahy, Jr., appeals

the district court's grant of summary judgment in

favor of plaintiff, the AsperulPitkin County Housing

Authority (the County). We affirm.

I.

Background

¶ 2 To combat the rising cost of housing, the

County held a lottery in which long term county

residents could win an opportunity to purchase

residential real property at a price below market

value. Mulcahy won one of those opportunities.

¶ 3 After the lottery but before purchasing the

property, Mulcahy agreed to abide by the County's

Master Deed Restriction Agreement (Master

Agreement), which was a condition imposed on all

lottery winners. The Master Agreement placed

various obligations on Mulcahy including that he

be employed in the county and that he use the

house as his primary residence. If Mulcahy failed

to abide by the Master Agreement, the County

could force a sale of the property.

¶ 4 Mulcahy bought the property and began

building a house. Nine years later the County

received a complaint that Mulcahy had breached

App. 3

the Master Agreement by not working in the

county and not occupying the property as his sole

residence, among other purported violations

¶ 5 The County sent Mulcahy two warning letters.

The second of those warning letters was dated

August 5, 2015, and gave Mulcahy until August 19,

2015, to provide documentation that [he was]

meeting the residency and employment

requirements." The second warning letter further

advised Mulcahy that if he failed to respond to the

County he would be "sent a Notice of Violation

(NOV) and have an opportunity to dispute the

violation by requesting a Board Grievance Hearing

before the [County] Board of Directors." Mulcahy

failed to respond to the County's satisfaction, so on

August 25, 2015, the County sent Mulcahy a notice

of violation.

¶ 6 Under the Master Agreement, if Mulcahy

disagreed with the County's assessment of a

violation, he could dispute the merits of the alleged

violation at a hearing, but he needed to request a

hearing within fifteen days of the notice (i.e., by

September 9, 2015). And, the Master Agreement

provided that "[i]f no hearing is requested and the

violation is not cured within the fifteen (is) day

period, the violation shall be considered final and

the Owner shall immediately list the Property for

sale." The agreement also dictated that the failure

to seek a hearing "shall constitute the failure to

exhaust administrative remedies for the purpose of

judicial review."

1 7 Mulcahy never requested a hearing.

App. 4

weeks

later,

on

October 1, 2015, the County

¶ 8 Six

sent Mulcahy a final letter demanding that he list

his house for sale in accordance with the Master

Agreement. He did not do so.

¶ 9 As a result, in December 2015, the County

initiated this action asserting two claims for relief.

First, the County asserted a breach of contract

claim alleging that Mulcahy breached the Master

Agreement by not meeting the agreement's

The

residency or employment requirements.

County sought specific performance in the form of

an order requiring Mulcahy to list the property for

sale in accordance with the terms of the Master

Second, the County sought a

Agreement.

declaratory judgment that the Master Agreement

was a valid contract that gave the County the right

to force a sale in the event of a breach.

¶ 10 The district court concluded that Mulcahy's

failure to seek a hearing deprived the court of

jurisdiction to consider any defense he might have

to the County's determination of a violation and

entered summary judgment in favor of the County.

The district court awarded the County specific

performance and ordered Mulcahy's house to be

sold; in accordance with the Master Agreement.

Il. Analysis

¶ 11 Mulcahy first argues that the district court

erred by concluding that the exhaustion doctrine

applies to his case. Second, he contends that the

App. 5

district court erred by granting summary judgment

on his equitable defenses.

¶ 12 Both issues involve reviewing the district

court's grant of summary judgment. We review the

grant of summary judgment de novo. Georg v.

Metro Fixtures Contractors, Inc., 178 P.3d 1209,

1212 (Cob. 2008). Summary judgment is only

appropriate if the pleadings and supporting

documentation demonstrate there is no genuine

dispute of material fact and the moving party is

entitled to judgment as a matter of law. C.R.C.P.

56(c).

A. Exhaustion Doctrine

¶ 13 Under the exhaustion doctrine, a court lacks

subject-matter jurisdiction over an action when a

party fails to utilize an adequate administrative

remedy that is available. City & Ct. of Denver v.

United Air Lines, Inc., 8 P.3d 1206, 1212 (Cob.

2000). We strictly adhere to the exhaustion

doctrine. Cob. Dept of Pub. Health & Env't i.

Bethell, 60 P.3d 779, 784 (Cob. App. 2002) (citing

Den ver-Laramie Walden Truck Line, Inc. i'.

Denver-Fort Collins Freight Serv., Inc., 156 Cob.

The

366, 371, 399 P.2d 242, 243 (1965)).

exhaustion doctrine has some exceptions, none of

which are alleged to be present here. See United

Air Lines, Inc., 8 P.3d at 1213 (exhaustion doctrine

does not apply when. doing so would be futile or

when party raises constitutional issues).

App. 6

14

Mulcahy

did

not

request a hearing, but he

¶

contends that the exhaustion doctrine cannot be

invoked by a plaintiff who is not defending a

counterclaim or contesting an affirmative defense.

We do not agree.

¶ 15 This case presents an almost identical

situation to the one in Bethell. In that case, the

Colorado Department of Public Health (CDPHE)

issued a compliance order to a solid waste disposal

company that violated state regulations. Bethel],

60 P.3d at 784. The compliance order contained a

notice that the defendant could request a hearing

within ten days to dispute CDPHE's determination,

but the defendant did not request a hearing. Id. A

division of this court affirmed the district court's

grant of summary judgment in favor of CDPHE,

concluding that the defendant's failure to seek

administrative review precluded the district court

from considering the defendant's potential

defenses. Id. The same is true in this case.

Mulcahy received a notice of violation and had the

opportunity to contest the County's allegations at a

hearing. When he did not, the County's finding of a

violation became final pursuant to the terms of the

Master Agreement. And because he had an

adequate administrative remedy available that he

did not pursue, the exhaustion doctrine divests the

district court of jurisdiction to consider Mulcahy's

challenge to the County's determination of a

violation.

App. 7

¶ 16 Mulcahy argues that Bethel] does not apply

because in that case the court granted summary

judgment against the defendant, precluding him

from raising affirmative defenses, and not in favor

of CDPHE on its claims. That, however, is a

distinction without a difference. Failure to exhaust

administrative remedies deprives the court of

jurisdiction to consider the collateral attack on the

administrative, determination. Thomas v. F.D.I. C,

255 P.3d 1073, 1077 (Cob. 2011). The outcome

does not change just because it is the plaintiff

instead of the defendant invoking the exhaustion

doctrine. Whether it is a plaintiff or defendant

invoking it, the exhaustion doctrine serves to

prevent a party from circumventing the

administrative process. As the court stated in

Bethel], "allowing a defendant to assert a defense

which could have been, but was not, raised in the

underlying administrative proceeding would

constitute an impermissible collateral attack on the

administrative order." 60 P.3d at 784-85; see also

Coachella Valley Mosquito & Vector Control Dist.

v. Cal Pub. Emp't Relations Bd., 112 P.3d 623, 628

(Cal. 2005) ("The exhaustion requirement applies

to defenses as well as to claims for a affirmative

relief.").

¶ 17 Mulcahy asserts that the exhaustion doctrine

does not relieve the County of its burden to prove

that Mulcahy failed to comply with his obligations

under the Master Agreement. But the language of

the Master Agreement leads us to a different

conclusion.

App. 8

¶ 18 Pursuant to the agreement, "[ilf no hearing is

requested and the violation is not cured within the

fifteen (15) day period, the violation shall be

considered final and the Owner shall immediately

list the Property for sale." (Emphasis added.) It is

undisputed Mulcahy did not request a hearing, and

there is no evidence in the record that Mulcahy

cured the violations listed in the notice of violation

within fifteen days. Those failures alone constitute

a breach of the Master Agreement and trigger the

County's right to force a sale of the property.

Under these circumstances, no further proof is

required to establish a violation as a matter of law.

See Bethell, 60 P.3d at 783.

¶ 19 In Bethell, CDPHE was not required to prove

what it already had determined before issuing its

compliance order, namely that the defendant had

violated state regulations. Id. The defendant's

failure to exhaust made such an exercise

Unnecessary because that determination could only

have been challenged in an administrative

proceeding. Id. at 784-85. Here, if Mulcahy

wanted to dispute the County's determination, he

needed to have followed the procedures outlined in

the Master Agreement and seek a hearing. Having

failed to do so, the issue of whether Mulcahy

violated the Master Agreement was conclusively

resolved and revisiting that issue is beyond the

district court's jurisdictional reach.

¶ 20 In sum, the Master Agreement obligated

Mulcahy to seek administrative review of the

County's determination that he breached the

App. 9

agreement. Because Mulcahy did not seek a

hearing, absent an exception, the exhaustion

doctrine bars him from raising any claim or defense

to the County's decision. The record contains no

material facts to the contrary, so the district court

appropriately entered summary judgment in the

County's favor.

B. Equitable Defenses

¶ 21 Mulcahy next argues that the district court

erred by granting summary judgment on his

affirmative defenses. Mulcahy raised a number of

affirmative defenses in the district court, including

the equitable defenses of unclean hands and

estoppel.

¶ 22 Mulcahy argues that the district court

maintained jurisdiction to consider equitable

defenses because the County, and not Mulcahy,

invoked the court's jurisdiction. As discussed

above, the exhaust-tion doctrine imposes a

jurisdictional bar that prevented the district court

from considering Mulcahy's defenses, as the

assertion of those defenses did not fit into a

To be persuaded by

recognized exception.

Mulcahy's argument in this regard would require

us to recognize the assertion of equitable defenses

as an exception to the exhaustion requirement. We

decline to do so.

¶ 23 Exceptions to the exhaustion doctrine arise in

situations where the policies underlying the

doctrine would not be served by requiring a party

App. 10

to pursue administrative remedies. United Air

Lines, Inc., S P.3d at 1213. But, for the five

reasons set forth below, we conclude that requiring

a party to bring equitable defenses in an

administrative proceeding supports the policy goals

of the exhaustion doctrine.

1 24 First, applying the exhaustion requirement to

affirmative defenses that could have been raised in

front of the agency prevents interruption and

fragmentation of the administrative process. Id.

Mulcahy's equitable defenses are inextricably

linked to resolution of whether he violated the

Master Agreement. Mulcahy's equitable defenses

involve the same facts the County must consider

when determining whether he breached the Master

Agreement. Allowing Mulcahy to raise these

defenses at this point would interrupt the

administrative process and require that the district

court hear only a small piece of the case without

the benefit of a complete factual record, which

would have been developed had a hearing been

requested and held.

¶ 25 Second, the exhaustion doctrine is based on

the premise that an agency should be allowed to

use its expertise to develop a factual record. Id. at

1212. The factual record upon which the County

based its decision in this case could have just as

easily included facts related to his defenses of

unclean hands or estoppel. Even if Mulcahy's

defenses were not successful before the County, the

development of a record would have facilitated

judicial review of the County's decision. See

-

App. 11

McKart it. United States, 395 U.S. 185, 194 (1969)

("[Jiudicial review may be hindered by the failure

of the litigant to allow the agency to make a factual

record, or to exercise its discretion or apply its

expertise."). The district court had no record upon

which it could review whether the County

appropriately exercised its discretion.

¶ 26 Third, the exhaustion requirement allows an

agency an opportunity to correct its own errors,

thereby preserving the agency's autonomy. Id. For

example, in his unclean hands defense, Mulcahy

asserts that he is entitled to relief because he

received conflicting communications from County

officials. Assuming these allegations are true, if

these facts were brought to the County's attention

at an administrative hearing, the County would

have been able to rectify that situation not only for

Mulcahy, but for future participants in the

program as well. But by not requesting a hearing,

the County had no such opportunity.

27 Finally, the exhaustion requirement preserves

judicial resources by ensuring that courts only

intervene if the administrative process does not

provide an adequate remedy. United Air Lines,

Inc., 8 P.3d at 1213. Clearly, requiring a defendant

to bring equitable defenses asserted here in an

administrative proceeding preserves judicial

resources by airing these contentions at the agency

level, furthering the purpose of exhaustion.

Mulcahy does not identify a single issue he sought

to raise before the district court that the County

was ill-equipped or powerless to address.

App. 12

28

In

short,

none

of

the policies underlying the

¶

exhaustion doctrine are frustrated by requiring

that the equitable defenses of unclean hands and

estoppel be raised in an administrative proceeding.

In fact, requiring Mulcahy to do so is consistent

with Bethell's edict that the exhaustion doctrine

applies not only to claims but to defenses. 60 P.3d

at 784-85. Accordingly, the district court did not

err by applying the exhaustion doctrine to each of

Mulcahy's defenses.

¶ 29 There is, however, one aspect of Mulcahy's

equitable defense that could lead us to conclude

that the exhaustion requirement does not apply,

namely Mulcahy's contention that the County

purposefully sent the "final letter" knowing he was

According to Mulcahy,

out of the country.

beginning in July 2015, the County repeatedly

assured him that he would have time to come into

compliance with the Master. Agreement's

employment and residency requirements, but then

without additional notice the County sent a final

letter demanding a sale of the home in October

2015, when the County knew he would be out of the

country. This argument differs from the other

aspects of Mulcahy's equitable defenses in that it

involves the adequacy of the administrative process

and the fundamental fairness of the proceeding,

issues which implicate due process and would,

therefore, be exempt from the exhaustion

requirement. United Air Lines, Inc., 8 P.3d at

1213. But the facts, even viewed in a light most

App. 13

favorable to Mulcahy, do not support his contention

of a due process violation.

¶ 30 In his affidavit in opposition to summary

judgment, Mulcahy states that he was out of the

country when County officials "sent the 'Final

Letter" (i.e., the October 1, 2015, letter). Further,

he states that County officials knew he was out of

the country because on October 8, 2015, they sent

the final letter via email in addition to having

mailed it on October 1. But the October 1 final

letter was not the document that triggered the

administrative process. Instead, it was the August

25, 2015, notice of violation that started the clock

on Mulcahy's fifteen-day period to demand a

hearing to contest the violations. The final letter

merely demanded that Mulcahy list the property

for sale as outlined in the Master Agreement,

saying nothing about the ability to request an

administrative hearing.

¶ 31 In other words, under the Master Agreement,

a party's deadline to request a hearing is triggered

not by a final letter demanding the property be

sold, but by a notice of violation. The County sent

the notice of violation, which included information

regarding the administrative hearing requirement,

on August 25, 2015. Therefore, Mulcahy's deadline

to request a hearing was September 9, 2015, three

weeks before the County sent the final letter,

which was nothing more than the County

requesting Mulcahy to take certain action now that

the fact of a violation had been conclusively

determined.

App. 14

32

Moreover,

the

facts

in the record do not create

¶

an issue of disputed fact as to whether Mulcahy

was out of the country when the County sent the

August 251h notice of violation. The record contains

no competent evidence that, when viewed in a light

most favorable to Mulcahy, establishes that he left

the country prior to the notice of violation being

sent or that the County acted inequitably with

respect to issuing the notice of violation. Mulcahy

does argue that he was out of the country when the

County sent the notice of violation by making such

an assertion in one paragraph of his response to

the County's motion for summary judgment. But a

genuine issue of material fact cannot be established

simply by arguing the issue; instead he must set

forth specific facts by affidavit or otherwise show a

genuine dispute of fact. People in Interest of A. C,

One

170 P.3d 844, 846 (Cob. App. 2007).

unaverred argument in a brief does not meet this

standard. And the evidence in the record does not

show that there is a genuine dispute of material

fact that the County purposefully sent the August

25th notice of violation when Mulcahy was out of

the country. Accordingly, the district court did not

err by granting summary judgment in favdr of the

County.

III. Conclusion

¶ 33 The judgment is affirmed.

JUDGE DAILEY and JUDGE HAWTHORNE

concur

App. 15

IT IS FURTHER ORDERED that Mulcahy shall

provide APCHA, within 30 days of the date of this

Order, the information required under Paragraph 9

of the Deed Restriction so that APCHA may

determine the allowable sale price;

IT IS FURTHER ORDERED that APCHA is the

prevailing party and therefore entitled to fees and

costs pursuant to ¶J 22 and 24 of the Deed

Restriction;

IT IS FURTHER ORDERED that APCHA shall

submit its request for fees and costs in accordance

with Rule 121 § 1-22.

Issued Date: September 14, 2016

App. 16

APPENDIX B

District Court, Pitkin County, Colorado 506 East

Main Street, Suite 300 Aspen, CO 81611

Plaintiff(s): ASPEN PITKJN COUNTY HOUSING

AUTHORITY

Vs.

Defendant(s): EDWARD L MULCA}{Y JR. Case

2015CV30150

ORDER ON PENDING MOTIONS

This matter is before the Court on the Motion for

Summary Judgement filed by Plaintiff Aspen

Pitkin County Housing Authority ("AFCHA"); the

Cross-Motion for Judgment on the Pleadings filed

by Defendant Edward. Lee Mulcahy, Jr.; and

Mulcahy's Motion for Leave to Amend Answer.

I. FINDINGS OF FACT

1. The case is one for breach of contract. In

its first cause of action, APCHA seeks a decree of

specific performance directing Mulcahy to list his

home located at 53 Forge Road in Aspen

("Property") for sale in accordance with the terms

of an affordable housing deed restriction recorded

March 7, 2006 at Reception No. 521577 of the

App. 17

Pitkin County records ("Deed Restriction").

APCHA also seeks a declaratory judgment that the

Deed Restriction is valid, that Mulcahy is in

violation of it, and that he must sell the home as

provided in the deed restriction. APCHA also

seeks attorney fees.

Among other things, the Deed Restriction

requires—via incorporation of the APCHA

Employee Housing Guidelines as amended—that

Mulcahy be employed in Pitkin County by a Pitkin

County employer for a minimum of 1500 hours per

See

year.

h ttp.V/www. apcha. org/2014%2OGuidein es.pclf

(January 2014 Affordable Housing Guidelines) at

Part III § 1,' ¶

Mulcahy admits the Property is subject to

the Deed Restriction. He also admits, among other

things, that he has not complied with the

employment requirements of the Deed Restriction,

though he evidently is making efforts to do so

through employment with High Mountain Taxi and

the Aspen School District. He argues, however,

that this does not matter because APCHA filed its

claim too late, in violation of the statute of

limitations. He also claims exceptions to the

requirement that he exhaust administrative

remedies, and raises certain equitable defenses.

For its part, APCHA argues that Mulcahy is

barred from raising any defenses to its claims

1 Neither party attaches, or cites, to the applicable version or

section of the Guidelines. Given the timeframe at issue,

however, the 2014 appears to govern.

App. 18

because Mulcahy failed to avail himself of an

administrative process designated in the Deed

Restriction for resolution of the sorts of disputes

presented here. See Deed Restriction, Ex. 3 at p. 8

of 17, ¶ 21.

5. APCHA evidently began investigating Mulcahy's

compliance with the Deed Restriction in May of

2015. See Ex. 5, ¶ 2. On July 17, 2015 APCHA's

Julie Kieffer sent Mulcahy a "1st Compliance

Letter" informing him, among other things, that he

needed to demonstrate compliance with residency

and employment requirements of the Deed

Restriction by July 31, 2015. See Id., Appx. A at 2.

This letter erroneously referred him to Part II, § 3

of the APCHA Guidelines, which refer to rental

rather than purchased housing. It told him that he

had "14 calendar days from the date of this 1st

Compliance Letter to respond and 60 calendar days

to fully resolve this issue. If you fail to respond

to the APCHA you will be sent a Notice of Violation

(NOV) and have an opportunity to dispute the

violation by requesting a Board Grievance Hearing

before the APCHA Board of Directors." Id.

6. According to Kieffer, Mulcahy did not

provide sufficient documentation in response to the

1st Compliance Letter to determine he was in

compliance with the Deed Restriction. See Ex. 5, ¶

5. Kieffer there-fore sent him a "2nd Compliance

Letter" dated August 5, 2015. The content of this

letter appears to be identical to the 1st Compliance

Letter, including the erroneous direction to Part II

§ 3 of the APCHA Guidelines, a statement in the

App. 19

final paragraph that the 2nd Compliance Letter

was actually a 1st Compliance Letter, and what

appeared to be a restart of the clock on the 60 days

allowed to fully resolve the issue. See Ex. 5, Appx.

B.

Mulcahy again did not provide sufficient

information in response to the 2nd Compliance

Letter, and on August 25, 2015 Kieffer issued an

NOV to Mulcahy. See Ex. 5, Appx. C. The NOV

set a deadline of September 9, 2015 to either: (1)

list the Property for sale; (2) document his

compliance with residence and employment

requirements of the Deed Restriction; or (3) request

a hearing in front of the APCHA board of directors.

Mulcahy asserts he did not receive the NOV

until after the September 9, 2015 deadline had

passed because he was traveling in Africa at the

time. Mulcahy asserts that Kieffer knew he was

out of the country when she sent the NOV and

would be unable to receive it prior to the

September 9, 2015 deadline, but his grounds for

this assertion are only an email dated October 8,

2015. See Ex. D. He does not provide any evidence

asserting or demonstrating that Kieffer knew he

was out of town when she sent the NOV.

Notwithstanding the passage of the September

9, 2015 deadline, Kieffer continued to communicate

with Mulcahy concerning evidence that might

establish his compliance with the employment

requirements of the Deed Restriction. See Ex. E-F.

In his affidavit, Mulcahy alleges that APCHA

held up issuance of a Certificate of Occupancy for

App. 20

the Property, and that its action in this regard was

motivated by animus and a concern that if a CO

issued, APCHA may not be able to. remove him

from the Property. See Ex. I, ¶ 16. This action,

however, took place in the spring of 2016.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if

"the pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of law." C.R.C.P. 56(c). The moving party bears

the initial burden of showing no genuine issue of

material fact exists; the burden then shifts to the

nonmoving party to establish a triable issue of fact.

All doubts must be resolved against the moving

party; at the same time, the nonmoving party must

receive the benefit of all favorable inferences that

may be reasonably drawn from the undisputed

facts. Summary judgment is a drastic remedy, to

be granted only when there is a clear showing that

the controlling standards have been met. Even

where it is "extremely doubtful" that a genuine

issue of material fact exists, summary judgment is

inappropriate. Westin Operator, LLC v. Groh, 347

P.3d 606, 611 (Cob. 2015).

III. .APCHA's Motion for Summary Judgment

APCHA seeks a decree of specific

performance ordering Mulcahy to list the Property

for sale at a price to be determined by APCHA and

App. 21

an order requiring Mulcahy to provide APCHA

with sufficient documentation to establish

construction costs. Presumably if the first of these

requests is granted the second would be one

Mulcahy would embrace, since it is entirely in his

interest to provide APCHA with an orderly and

documented explanation of all costs he is entitled

to under the Deed Restriction and Guidelines.

A decree of specific performance is

designed to remedy a past breach of contract by

fulfilling the legitimate expectations of the

wronged promisee. See Ballow v. PHICO Ins. Co.,

878 P.2d 672, 680 (Cob. 1994). A suit for specific

performance is an equitable action. The right to

specific performance is not absolute. Whether the

remedy should be granted depends upon the

equities of the case, and rests within the sound

discretion of the trial court. Schreck v. T & C

Sanderson Farms, Inc., 37 P.3d 510, 514 (Cob.

App. 2001).

Contracts must be reasonably certain to

justify a decree of specific performance. Courts

cannot make contracts for parties and then order

Thus, the

them specifically performed.

indefiniteness of a contract is an adequate reason

to refuse specific performance. The contract itself

must make the precise act to be done clearly

ascertainable. It is fundamental that to enable the

court to decree specific performance, the terms of

the contract must be clear, definite, certain, and

complete. See Id. (citations omitted).

App. 22

Specific performance is a remedy for

breach of contract. Thus, the party seeking such

relief must first prevail on a cause of action for

breach of contract. "It has long been the law in

Colorado that a party attempting to recover on a

claim for breach of contract must prove the

following elements: (1) the existence of a contract;

(2) performance by the plaintiff or some

justification for nonperformance (3) failure to

perform the contract by the defendant; and (4)

The

resulting damages to the plaintiff.

"performance" element in a breach of contract

action means "substantial" performance.

Substantial performance occurs when, "although

the conditions of the contract have been deviated

from in trifling particulars not materially

detracting from the benefit the other party would

derive from a literal performance, [the defendant]

has received substantially the benefit he expected

and is, therefore, bound to pay." W. Distrib. Co. t'.

Diodosio. 841 P.2d 1053, 1058 (Cob. 1992).

Mulcahy does not dispute APCHA's

recitation of undisputed facts, and the Court

concludes that they are sufficient to establish: (i)

the existence of a con-tract; (2) performance by

APCHA through the act of conveying the Property

to Mulcahy; and (3) harm to APCHA from violation

of the Deed Restriction, which is designed to

advance the sustainabiity of a diverse working

community in Aspen. The remaining question, to

which the parties devote essentially all of their

App. 23

argument, is whether or not Mulcahy failed to

perform the contract or was excused from doing so.

On this question, APCHA claims the

Court lacks subject matter jurisdiction to consider

any arguments from Mulcahy that he in fact

performed because, by failing to appeal the NOV to

the APCHA Board, he failed to exhaust his

administrative remedies as the Deed Restriction

requires.

The Court of Appeals has specifically

held that APCHA has authority to hold a hearing

to review an NOV. See Meyerstein v. City of

Aspen, 282 P.3d 456, 467 (Cob. App. 2011). The

Deed Restriction here specifically authorizes

administrative enforcement of its terms, see Ex. 3,

¶J 20-21. Indeed, it specifically sets forth the NOV

process, including an owner's right to request a

hearing within 15 days and a requirement that "[ilf

no hearing is requested and the violation is not

cured within the fifteen (is) day period, the

violation shall be considered final and the Owner

shall immediately list the Property for sale

Id. at ¶ 21.

The same paragraph also states: "[tihe

failure to request a hearing shall constitute the

failure to exhaust administrative remedies for the

purpose of judicial review."

The Colorado Supreme Court has held

that governmental entities are authorized to

incorporate administrative dispute resolution

mechanisms into their contracts. See City and

County of Denver v. District Court, 939 P.2d 1353,

.

.

.

App. 24

1365 (Cob. 1997). The appellate bench analyzes

such provisions as it does other alternative dispute

resolution provisions such as those providing for

arbitration. See Id at 1364. The Supreme Court in

that case held that a district court abused its

discretion by holding that certain contractual

disputes were not covered by the ADR provision at

issue there. Scold, at 1368.

A district court must compel ADR unless

the court can say with positive assurance that the

ADR clause is not susceptible of any interpretation

that encompasses the subject matter of the dispute.

There is a presumption in favor of ADR, and the

Court must resolve doubts about the scope of the

.ADR clause in favor of the ADR mechanism. See

Id

The Court concludes that the underlying

dispute here falls within the scope of the

administrative enforcement and review provisions

embodied in the Deed Restriction. The Deed

Restriction is clear on its face and plainly

encompasses precisely the sort of dispute presented

here. Mulcahy does not argue that the provisions

for administrative enforcement and review are

invalid, and the Court concludes that they are.

Mulcahy acknowledges that obtaining

affordable housing is a privilege, not a right. The

Property he acquired here came with burdens that

are atypical in a free-market transaction:

restrictions on residency, employment, and rental

of the Property, to name a few. These burdens on

the purchaser, however, are balanced by a

App. 25

purchase price that is dramatically lower than one

would find in the free market in Aspen. This tradeoff is at the core of any contract for APCHA

housing, and is the sine qua non of the bargain

struck by both parties to the transaction. Mulcahy

does not argue that he entered into the contract

involuntarily, and the Court concludes that the

Deed Restriction is a binding and valid component

of the contract for sale whereby Mulcahy took title

to the Property.

There is no dispute that Mulcahy failed

to request a hearing from the APCHA Board in the

time permitted by ¶ 21 of the Deed Restriction.

Muldahy argues, among other things, that his

failure to do so should be excused because he was

traveling in Africa at the time the NOV was sent,

and because Kieffer was "stringing him along" with

representations about what did and did not matter

in his case.

The Court concludes, however, that

Mulcahy received adequate notice from the 1st and

2nd Compliance Letters to make him aware that

an NOV was coming. Mulcahy does not argue that

he in fact provided evidence of employment

sufficient to establish compliance with the APCHA

Guidelines. The 1st and 2nd Compliance Letters,

though not models of precision, nonetheless put

Mulcahy on notice that APCHA was pursuing

enforcement actions against him, and set forth a

timeframe during which such enforcement actions

would take place.

App. 26

Although Mulcahy complains that the

Compliance Letters did not inform him of the time

available to respond to the NOV, that deadline is

contained within the Deed Restriction itself: 15

days. The Court concludes that Mulcahy was

aware of APCHA's pending enforcement

proceedings when he elected to travel to Africa. He

cannot blame his travel choices on APCHA, and he

cannot use them as an excuse to avoid compliance

with the plain language of the Deed Restriction.

Since Mulcahy failed to avail himself of

the administrative review process provided for in

the Deed Restriction, the Court concludes that it

cannot consider any defenses to the APCHA claims

regarding his violation of the Deed Restriction.

See, e.g., City and County of Denver v. United Air

Lines, 8 P.3d 1206, 12131216 (Cob. 2000)

(applying exhaustion doctrine in context of

contractual administrative claims process like that

here); Liberty Bankers Life Ins. Co. v. First

Citizens Bank & Trust Co., 2014 COA 151 (barring

counterclaims for failure to exhaust).

The Court concludes that the Deed

Restriction clearly provides for the Property to be

listed for sale under circumstances such as these.

This element of the claim for specific performance

is therefore satisfied. The Court further concludes

that it is equitable to hold parties to the promises

they make in contracts, and that this is

particularly true here where the contract at issue is

designed to advance the public's interest in

maintaining a diverse and stable population and

App. 27

workforce in Aspen and Pitkin County. APCHA's

claims for specific performance must therefore be

granted unless Mulcahy can establish some basis to

excuse his compliance with the administrative

review requirements. For the reasons discussed

below, the Court concludes Mulcahy has failed to

do so. The Court will therefore grant the request

for an Order of specific performance directing

Mulcahy to list the Property for sale.

IV. Mulcahy's Cross Motion for Judgment on the

Pleadings

Mulcahy's Cross-Motion raises a variety

of arguments in an effort to avoid APCHA's claims

on Summary Judgment and dismiss the underlying

Complaint (i) the statute of limitations; (2)

exceptions to the exhaustion requirement; (3)

unclean hands and estoppel; and (4) cure. The

Court has considered all of Mulcahy's arguments;

to the extent an argument is not specifically

discussed below it has been considered and rejected

for the following reasons.

A. Statute of Limitations

Mulcahy first argues that § 13-80-101,

C.B.S. bars APCHA's action here. The Court

concludes that this argument could have been

presented to APCEIA through the administrative

review process, and is therefore barred for the

reasons discussed above. See generally Thomas it.

Farmers Ins. Exch., 857 P.2d 532, 534 (Cob. App.

1993).

Even if this conclusion were mistaken,

however, the Court disagrees with Mulcahy

App. 28

because it concludes the action for specific

performance APCHA asserts here arose only after

Mulcahy failed to avail himself of the

administrative review process established in the

Deed Restriction, and because the Deed Restriction

imposed continuing obligations on Mulcahy with

regard to residence and employment.

Mulcahy argues that APCHA should

have known he was no longer employed in Pitkin

County when the Aspen Skiing Company's decision

to fire him was published in a local newspaper.

The Court, however, disagrees with this analysis

because Mulcahy could have gotten another job

without APCHA realizing it. APCHA handles

thousands of individuals who benefit from its

affordable housing program. It is not reasonable to

assume the agency was following Mulcahy's

comings and goings.

Moreover, and more importantly,

Mulcahy's position ignores the fact that the

administrative review process established a

protocol for Mulcahy to demonstrate his compliance

with the Deed Restriction. Given that the Deed

Restriction itself sets forth a specific process for

determining the existence of breach, only after that

process was complete, and Mulcahy had been given

the opportunity to demonstrate his compliance,

would the claim for specific performance asserted

here arise. Stated otherwise, any action for breach

of contract by APCHA prior to offering the right to

a hearing would have been premature under the

Deed Restriction, at least on these facts.

App. 29

Finally, the Court concludes that the

Deed Restriction imposes a continuing obligation

on Mulcahy to remain employed in Pitkin County.

Because that obligation is continuing, a breach at

any time within the three-year limitation period

would give rise to a cause of action for breach. See,

e.g., Neuromonitoring Assoc. v. Centura Health

Corp., 351 P.2d 486, 493 (Cob. App. 2012).

B. Exceptions to Exhaustion

Mulcahy next argues that the exhaustion

requirement does not apply here because: (1) the

statute of limitations is a legal issue for decision by

the Court; (2) review would have been futile; and

(3) his case raises constitutional questions.

As noted above, a limitations issue is not

outside the scope of an arbitrator's authority. See,

e.g, Thomas v. Farmers Ins. Exchange, 857 P.2d

532, 534 (Cob. App. 1993); Wagner Const. Co. v.

Pacific Mechanical Corp., 157 P.3d 1029, (Cal.

2007). The Colorado Supreme Court views the sort

of administrative review process at issue here as a

form of arbitration. See Denver v. District Court,

939 P.2d at 1365. Thus, the Court doubts

Mulcahy's view of the law is correct. Even if it

were, however, the Court has already concluded

that' the statute of limitations does not bar

APCHA's claim here. Accordingly, the Court

rejects this argument.

The Court also rejects the argument that

The futility

review would have been futile.

exception is not applicable here because the record

indicates that APCHA was in fact working with

App. 30

Mulcahy to determine what he would need to do to

avoid the sale of his home. The review process

presented Mulcahy with an opportunity to present

the facts of his case and perhaps seek some sort of

schedule for compliance from APCHA. The fact

that he was in violation of the Deed Restriction and

failed to take the steps necessary to plead his case

cannot be used as an argument for futility. There

is no indication that APCHA applies a categorical

rule in these circumstances, and so the futility

argument is not well taken. See Liberty Bankers,

2014 COA 151, ¶ 21.

38. Mulcahy next argues that APCHA's

procedure raises constitutional questions that

exempt him from the exhaustion requirement. He

contends that APCHA's procedures preclude

valuing the sweat equity he put into building his

own house, and that this constitutes an

unconstitutional taking under the federal and

Colorado constitutions. As an initial matter, the

Court notes that Mulcahy agreed to abide by the

Deed Restriction and APCHA Guidelines when he

availed himself of the privilege of affordable

housing. Generally speaking, the takings clause

does not apply when the claim asserted is governed

by the rights and remedies defined in the contract.

See, e.g., Century Expl. New Orleans, Inc. v.

United States, 103 Fed. Cl. 70, 78 (2012) (collecting

Federal Circuit and Court of Claims decisions on

this issue); Cty. of Ventura v. Channel Islands

Marina, Inc., 159 Cal. App. 4th 615, 625, 71 Cal.

Rptr. 3d 762, 768 (2008). This is because the scope

App. 31

of a property interest for Fifth Amendment

purposes is defined, and delimited, by the rights

and obligations the contract confers. See Del-Rio

Drilling Programs, Inc. v. United States, 146 F.3d

1358, 1364 (Fed. Cir. 1998). One cannot, in other

words, bring a takings claim alleging deprivation of

rights under a contract when the contract provides

no such rights.

Here, to the extent that Mulcahy is

asserting such an argument, the Court concludes

that his property interest for takings purposes did

not include the right to be free from the

administrative review process specified in the Deed

Restriction. Accordingly, AFCHA's requirement

that he comply with that process did not effect a

taking under the U.S. or Colorado Constitutions.

To the extent that Mulcahy's takings

argument instead revolves around a valuation that

APCHA has not yet assigned, the issue is not ripe.

APCHA is not claiming in this proceeding that

Mulcahy must sell the Property for any particular

Rather, it is requesting a declaratory

price.

judgment ordering Mulcahy to provide it with the

information required by the Deed Restriction to

calculate the value of the Property. See Ex. 3 at 4

of 17 ¶J 8-9; id. at internal Ex. B. Since there has

been no final decision from APCHA concerning

value of the Property, a takings claim cannot yet

lie. See, e.g., Quaker Court LLC v. Board of Cty.

Comm'rs, 109 P.3d 1027, 1034 (Cob. App. 2004).

Mulcahy next asserts that APCHA has

acted inequitably, and that the doctrine of unclean

App. 32

hands therefore bars its action here. "[A] party

engaging in improper or fraudulent conduct

relating in some significant way to the subject

matter of the cause of action may be ineligible for

equitable relief. The unclean hands doctrine is

intended to protect the integrity of the court, and

simply means that equity refuses to lend its aid to

a party who has been guilty of unconscionable

conduct in the subject matter in litigation."

Premier Farm Credit, PCA v. W-Cattle, LLC, 155

P.3d 504, 519 (Cob. App. 2006) (internal

quotations omitted).

42. Mulcahy asserts that Kieffer's

communications with him were sufficiently

confusing to amount to inequitable conduct. The

Court agrees that the compliance letters were

ambiguous, but disagrees that Mulcahy has

identified a material issue of fact with regard to

improper or fraudulent conduct. Mulcahy signed a

Deed Restriction that clearly sets forth the process

and timeframes for Notices of Violation. Mulcahy

was just as much a party to that contract as

APCHA, and just as capable of reading it. The

Court finds it surprising that someone facing the

potential loss of his home would neglect to do so—

particularly after APCHA sent him two letters

letting him know an NOV was coming if he did not

present evidence of his compliance with the Deed

Restriction. Despite being on notice that an NOV

was coming, however, Mulcahy evidently decided to

travel to Africa where it was not possible to reach

App. 33

him. Mulcahy cannot lay the consequences of this

choice at APCHA's door.

Mulcahy has also admitted in this

proceeding that he did not comply with the

employment requirements of the Deed Restriction.

Thus, even if he had acted timely to request a

hearing—which he did not—it appears APCHA

would have had to make an exception to the

Guidelines for Mulcahy.2 The Court is not in a

position to order contracting parties to waive their

rights to enforce the contract's terms.

Mulcahy's final argument, articulated in

his Surreply, is that APCHA should be estopped

from enforcing the Deed Restriction. Like unclean

hands, estoppel is an equitable defense. Although

it can be invoked against the government to

prevent manifest injustice, see Jafay v. Bd. of Cty.

Comm 'rs of Boulder Cty., 848 P.2d 892, 903 (Cob.

1993), it is not so freely invoked against

governmental agencies as it is against private

parties.

The Court does not perceive any manifest

injustice here. Instead, the Court perceives a

simple enforcement action whereby APCHA is

pursuing its rights under the Deed Restriction

after giving Mulcahy ample notice of its intentions,

his rights, and the consequences of failing to

pursue them. Although there was some sloppiness

in preparing the compliance letters, there is

nothing in the record to suggest manifest injustice.

2 111 light of his admission to this violation, it is unnecessary

for the Court to address the other violations APCHA claims.

App. 34

To the contrary, the Court concludes it would be

inequitable for those who benefit from the

tremendous advantages of affordable housing to

not hold up their end of the bargain by working in

the community as they agreed to do. A contrary

holding would undermine the entire purpose of

APCHA's program, which is to ensure the

continued viability of a vibrant, diverse community

in Aspen despite the fact that global capital flows

make it impossible for most working people to

afford free market housing there. The fact that

large numbers of people are waiting in line to take

advantage of the bargain APCHA offers reinforces

the Court's conclusion that Mulcahy's equitable

arguments are not well taken.

V. Mulcahy's Motion to Amend

Mulcahy has also requested leave to

amend his Answer to assert two counterclaims

against APCHA: one for outrageous conduct, and

one for negligent infliction of emotional distress.

The Court has considered the Motion, the

Response, and Mulcahy's "Surreply," which is

actually just a Reply for which no leave to file is

required. The Court agrees with Mulcahy that

leave to amend is freely granted and that in this

case the proposed amendment would be permitted

if it were not futile.

The Court agrees with APCHA, however,

that the asserted counterclaims for outrageous

conduct and negligent infliction of emotional

distress are in fact futile because both lie in tort

and are therefore barred by the Colorado

App. 35

Governmental Immunity Act, § 24-10-101, C.B.S.

See, e.g., Green v. Qwest Sort's. Corp., 155 P.3d

383, 385 (Cob. App. 2006) (noting that outrageous

conduct is a tort); Goodson v. Am. Standard Ins.

Co. of Wisconsin, 89 P.3d 409,'416 (Cob. 2004)

(noting that negligent infliction of emotional

distress is a tort). The GIA bars claims against a

governmental entity such as APCHA that lie in tort

or could lie in tort. See, e.g., Adams ox rel. Adams

t'. City of Westminster, 140 P.3d 8, 10 (Cob. App.

2005).

Mulcahy argues in his Reply that

because he appears pro se, he should be free to

amend to assert claims sounding in breach of

contract. The Motion to Amend, however, did not

identify any contract claims, and Mulcahy does not

identify which sections of the Deed Restriction

APCHA has violated. Nor does he explain how any

such claim for breach of contract would survive in

light of his failure to exhaust his administrative

remedies.

The APCHA conduct Mulcahy has

identified in support of his proposed new claims is

all derivative of the enforcement action. In other

words, his counter-claims would not exist if

APCHA had not brought the enforcement action.

The Court therefore concludes that they fall within

the scope of the administrative review provision

embodied in ¶ 21 of the Deed Restriction, and that

Mulcahy has failed to exhaust his administrative

remedies with respect to these claims by failing to

request a hearing pursuant to 1 21. See Denver v.

App. 36

939

P.2d

at 1368. The Court also

District Court,

observes that Mulcahy's claims appear to amount

to a claim of waiver of APCHA's ability to enforce

its rights, but there is no allegation that the terms

of ¶ 33 of the Deed Restriction have been satisfied

in connection with such a claim of waiver.

"While courts may take into account the

fact that a party is appearing pro se, pro se parties

are bound by the same rules of civil procedure as

attorneys licensed to practice law." Cornelius v.

River Ridge Ranch Landowners Ass'n, 202 P.3d

564, 572 (Cob. 2009). Here, Mulcahy has failed to

justify his request for amendment to assert

violations of the Deed Restriction, and he also

raises such a basis for the Motion to Amend for the

first time on Reply. This, then, provides an

alternative basis for the Court's holding. See

Maralex Resources, Inc., v. Chamberlain, 320 P.3d

399, 404 n.3 (Cob. App. 2014) (declining to address

issues first raised in a reply brief).

VI. CONCLUSION

The Court is not unsympathetic to

Mulcahy's plight. It is certainly easy to appreciate

how Mulcahy would be distraught at the notion of

having to sell a home he has built with his own two

The Court, however, must base its

hands.

decisions on the law, and the Deed Restriction here

contains clear requirements that Mulcahy did not

satisfy. To the extent that it is appropriate to

make exceptions for cases like Mulcahy's, under

the Deed Restriction that is a job for the AIPCF[A

Board, not the Court. Yet Mulcahy failed to avail

App. 37

himself of that opportunity by electing to travel

and place himself out of reach when APCHA was

actively pursuing an enforcement action against

him. Under these circumstances, and on the record

presented, the Court does not perceive a material

issue of fact to preclude summary judgment in

APCHA's favor.

IT IS THEREFORE ORDERED that summary

judgment shall enter in favor of APCHA and

against Mulcahy on APCHA's claim for specific

performance directing Mulcahy to list the Property

for sale;

IT IS FURTHER ORDERED that Mulcahy shall

provide, within 30 days of the date of this Order,

the information required under Paragraph 9 of the

Deed Restriction so that APCHA may determine

the allowable price;

IT IS FURTHER ORDERED that APCHA is the

prevailing party and therefore entitled to fees and

costs pursuant to ¶J 22 and 24 of the Deed

Restriction;

IT IS FURTHER ORDERED that APCHA shall

submit its request for fees and cost in accordance

with Rule 121 § 122.

Issue Date: June 3, 2016

BY THE COURT

Christopher G. Seldin

District Court Judge

App. 38

APPENDIX C

DISTRICT COU1RT,PITKIN COUNTY,

COLORADO

DATE FILED: August 8, 2016 Case Number:

2015CV30 150

Plaintiff(s) ASPEN PITKIN COUNTY HOUSING

AUTHORITY

V.

Defendants(s) EDWARD L MULCAHY, JR.

Order: Pro Se Defendant Edward Lee Mulcahy Jr.

Motion to Reconsider and To Alter Judgment and

Brief

The motion/proposed order attached hereto:

DENIED.

This matter is before the Court on Mr.

Mulcahy's Motion to Reconsider. The Court has

considered the Motion, the Response, the Reply and

the file. Mulcahy takes issue with the Court's

reasoning in its Order dated June 3, 2016,

essentially arguing the same positions he

previously argued but with specific reference to

portions of the Court's Order with which he

disagrees. He stresses, among other things, that he

App. 39

has not admitted a violation of the work

requirement, and that APCHA'S Ms. Kieffer knew

he was traveling to Africa.

The Court, however, did not resolve the case

on Mulcahy's compliance or noncompliance with

the work requirement, or on any if the other

substance that could have been presented to the

APCFIA board under the administrative review

requirement of the Deed Restriction. The crux of

the Court's Order was that it cannot usurp the role

of an administrative agency to reviews matters

reserved to the agency. As noted in the Order, the

Court of Appeals has specifically upheld APCHA'S

right to hold hearings to review Notices of Violation

like the one at issue here. This is a fundamental

principle of jurisdiction that Mulcahy asks the

Court to ignore, but the Court concludes there are

no grounds for doing so.

As noted in the Order, the Court concludes

the statute of limitations does not bar APCHA'S

action. Mulcahy's arguments to the contrary do not

persuade the Court, as it concludes the

Neuromonitoring Assoc. decision is on point.

Nor has Mulcahy persuaded the Court that

APCHA review would have been futile. To the

contrary, even drawing all inferences in in

Mulcahy's favor, Kieffer was continuing to work

with him even after the Compliance Letters were

sent in an effort to secure compliance with the

Deed Restriction, and there is no indication that

members of the APCHA Board would not have

App. 40

given him a fair hearing. While Mulcahy may

prefer review by the Court, he agreed otherwise in

the Deed Restriction.

The issues that gave the Court pause in this case

were Mulcahy's unclean hands and estoppel

defenses. Even drawing all favorable inferences for

Mulcahy, however, the Court cannot conclude that

APCHA engaged in improper, fraudulent or

unconscionable conduct, or that the result gives

rise to manifest injustice. Even taking as true

Mulcahy's assertion that Kieffer knew Mulcahy

was traveling in Africa when she sent the NOV, the

Court does not perceive inequitable conduct by

APCHA. Mulcahy received two different

Compliance Letters, and the Deed Restriction itself

clearly put him on notice of the timeframes

governing NOVs. The fact that APCHA declined to

suspend its enforcement action to accommodate

Mulcahy's travel schedule does not amount to

inequitable conduct.

In the end, Mulcahy asks the Court to adjudicate in

the first instance arguments that, by his own

contact, he agreed to present to the APCHA Board.

The Court concludes it lacks jurisdiction to do so,

and therefore declines the Motion to Reconsider.

Issue Date: 8/8/2016

CHRISTOPHER GILES SELDIN

District Court Judge

App. 41

APPENDIX D

DISTRICT COURT, PITMN COUNTY,

COLORADO

506 E. Main, Suite 300 Aspen, CO 81611 (970)9257635

Plaintiff(s): ASPEN/PITKIN HOUSING

AUTHORITY, a multi-jurisdictional housing

authority

V.

Defendant(s): EDWARD L. MULCAHY JR.

Case No.: 15 CV30150 Division 5

DELAY REDUCTION ORDER AND ORDER TO

SET CASE MANAGEMENT CONFERENCE IN

CIVIL CASES ASSIGNED TO JUDGES LYNCH,

NEILEY AND SELDIN

All parties to civil cases assigned to Judges

Denise K. Lynch, John F. Neiley and Christopher

G. Seldin shall comply with Order.

Deadline that must be met are: (a) Returns of

Service on all defendants shall be filed within 63

days after the date of the filing of the complaint or,

alternatively, if that is not done, plaintiff shall file

a status report and explain the difficulties in

accomplishing service and request an extension of

time to complete service; (b) Application for default

judgment shall be filed within 30 days after default

has occurred; and ( c ) Within 42 days after the case

is at issue, the responsible attorney or, if both

App. 42

parties are not represented by an attorney, the

plaintiff, shall notice a case management setting

conference with the division clerk for the judge to

whom the case is assigned (Nancy Risner for Judge

Lynch, (970)947- 3851, Maria Vergara Postay for

Judge Seldin (970)925-7635, ext. 3, and Malinda

Schierkolk (970)947-3876 for Judge Neiey). The

Case Management Conference shall be set for a

time after the parties' Proposed Case Management

Order is filed. Attorneys may request a Word

version of the Proposed Case Management Order

be emailed to them by contacting the respective

Judge's Clerk.

The Court will consider extending these time

periods upon timely filing of a motion showing good

cause.

At the case management conference, the parties

and the Court will discuss the parties' Proposed

Case management order which shall comply with

amended C.R.C.P. 16(b)(1) though [sic] (17) and the

attached Modified Civil Case Management Order.

The parties may attend the Case Management

Conference by telephone. The trial schedule will

not be set until completion of discovery and

mediation or other alternative dispute resolution.

Plaintiff shall mail a copy of this order to all

parties who enter an appearance and who do NOT

file their appearance electronically. Any party who

files an appearance by E-Filing, shall take notice of

this Order.

Dated: December 03, 2015 CLERK OF COURT

Is! Jonna Goldstone JONNA GOLDSTONE

App. 44

APPENDIX E

COLORADO SUPREME COURT CASE

ANNOUNCEMENTS

No. 175C781, Court of Appeals Case

No. 16CA1351

Petitioner Edward Lee Mulcahy, Jr.,

V.

Respondent: AsperilPitkin County Housing

Authority, a multi jurisdictional housing authority.

Petition for Writ of Certiorari

DENIED. EN BANC

April 30, 2018