July 13, 2007

Cable heir loses Woodside lawsuit in Court of Appeals
Magness loses road lawsuit to Woodside HOA, Barillas

Lynda James

Gary Magness, owner of the Hidden Valley Ranch and heir to cable television giant Bob Magness, lost a Colorado Court of Appeals case and must pay damages for beginning construction of a road on two lots in the Woodside Park subdivision northwest of Pine Junction in Park County.

One lot was owned by George and Patricia Barilla, the other by Magness. The road was to connect Vista Lane, a cul-de-sac in Woodside Park Unit 5, to the adjacent Hidden Valley Ranch.

The appellate court also upheld the 11th Judicial District Court's decision that several sections of Woodside Park Units 5 and 6 Homeowners Association's covenants were violated by Magness' actions.

The higher court ruled attorney fees, including those incurred during the appeal, must be paid by Magness to both the Barillas and the Woodside Park Units 5 and 6 Homeowners Association.

"We've been vindicated. For ten years and three trips to the appellate court, we've felt Magness was wrong. Finally, the court put it to an end," said Woodside HOA President Robert Nevadomski.


But the issue isn't over yet for the Barillas and their cross appeal on property damages. The appellate court overruled the summary judgment decision of the district court that the Barillas were not entitled to damages because they had refused an offer from Magness to buy the lot. That offer was contingent upon the Barillas dropping the lawsuit.

The higher court remanded the case back to district court for a trial to determine damages for property trespass and destruction, including punitive damages if the court found Magness' actions were wanton and willful.

"The court left the door open for punitive damages, which could be substantial," said Barilla's attorney, Alison Maynard.

She explained that punitive damages could be awarded if the district court finds Magness' actions were willful and wanton because road construction continued after the court had issued an injunction to stop.

According to the appellate court's decision, punitive damages may also be awarded for inconvenience such as discomfort and annoyance to the property owner. In this case, the Barillas claim they were left to "deal with clean-up, erosion and mudslides."

A little morality lesson

"I hope Gary Magness learned a little morality lesson. But whatever we get in damages is just a drop in the bucket for him," Maynard said.

The appellate court denied attorney fees against Park County by the Barillas. The decision said the county was not responsible for damages caused by a third party when the county issued a permit unless the county directly caused the damage or a "danger creation exception" could be proven. The court ruled the Barillas had not met the burden of proof for a "danger creation exception".

1997 beginning

The case began in 1997 after Gary Magness received a road permit from Park County to construct a public road on a road easement denoted on Woodside's plat as "reserved and dedicated." The Barillas and Woodside HOA filed suit.

The district court ruled on a summary judgment motion in favor of Park County and Magness. A summary judgment is appropriate when no factual issues remain to be tried, so a decision can be made without trial.

On appeal by the Barillas and the HOA, the appellate court overturned the summary judgment, saying the language on the plat was ambiguous and in conflict with the covenants. The covenants said all lots were to be used for residential purposes only. The appellate court remanded the case back to district court for trial to resolve the issue.

2006 ruling

The district court ruled in 2006 that the easement was not dedicated and was not intended as public roadway because it was not platted with solid lines and survey markings, as were other roads in the subdivision. And no documentation was presented that the county has accepted a dedication for the easement.

Also, developer George Hurst testified the easement was platted for his personal use because he was trying to buy property from Bob Magness. That sale never materialized. A public road would have also rendered the two lots smaller than Park County's minimum lot size. The ruling stated, "The totality of evidence fails to show clear intent to dedicate the easement for use as a public road."

The district court's decision led to the appeal by Gary Magness that was just decided. Magness' claim asserted the district court had erred in its findings of fact that led to the decision against Magness and in favor of the Barillas and the Woodside HOA.

The appellate court's decision stated: "We accept the trial court's findings of fact unless they are so clearly erroneous as to have no support in the record."

The appellate court decision said that the trial court did not err in its finding that insufficient evidence was presented to establish clear intent that the road easement was dedicated.

Magness' attorney, Patricia Alexander, was out of town and could not be reached for comment.


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