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McDowell v. United States2/24/1994
Plaintiffs, Gordon R. and Carol A. McDowell, appeal from the summary judgment dismissing their claim for enforcement of a setback requirement against defendant, United States of America, on the grounds that the action is barred by the applicable statute of limitations. We affirm.
Plaintiffs, residents of Salt Lake City, Utah, are the owners of lot 5 in the Last Dollar Planned Unit Development (Last Dollar PUD) in San Miguel County, Colorado. They acquired the lot from the developer, Last Dollar Limited Partnership, in 1976.
Defendant, United States of America, is the owner of lot 6, adjoining plaintiffs' lot, in the Last Dollar PUD. Defendant acquired lot 6 in a forfeiture action against the prior owners in April 1992.
The recorded plat of the Last Dollar PUD requires a twenty-foot setback area, as measured from lot lines, within which no improvements may be located. This requirement is not contained within the protective covenants governing the subdivision.
In the early 1980's, the prior owners of lot 6 began construction on a house which was completed in 1982. The house and several other related improvements encroach within the twenty-foot setback area, and may even extend onto lot 5.
Plaintiff Gordon McDowell stated that he visited lot 5 in 1982, but did not see any improvements upon lot 6 at that time. He discovered the encroachments during a visit to lot 5 in 1988. Concerned because the improvements appeared to intrude into the suitable building area of lot 5, he obtained a survey of the property. According to the survey, the improvements on lot 6 violated the twenty-foot setback requirement and extended onto lot 5.
Plaintiffs attempted to negotiate a resolution to the problem with the prior owners. When no agreement could be reached, plaintiffs directed their counsel to commence legal action in March 1989. Shortly afterward, plaintiffs' counsel experienced severe health problems, but although he had resumed his law practice by August 1989, suit was not filed until May 1990.
The complaint alleged violation of the twenty-foot setback requirement and trespass. In relation to the setback claim, plaintiffs sought both equitable relief, in the form of removal of the encroaching improvements, and money damages.
During the pendency of this litigation in the trial court, defendant acquired ownership of lot 6 and was substituted as defendant. Defendant filed a motion for partial summary judgment on the setback claim only, asserting that plaintiffs' action was time barred by the one-year statute of limitations set forth in § 38-41-119, C.R.S. (1982 Repl. Vol. 16A).
The trial court found in favor of defendant and granted summary judgment dismissing plaintiffs' setback claim. Pursuant to C.R.C.P. 54(b), the trial court certified the judgment as final for purposes of appeal. Further proceedings regarding plaintiffs' trespass claim have been stayed by order of the trial court pending the outcome of this appeal.
Plaintiffs' argue that the trial court erred by applying § 38-41-119 to their setback claim. We disagree.
I.
According to § 38-41-119:
No action shall be commenced or maintained to enforce the terms of any building restriction concerning real property or to compel the removal of any building or improvement on land because of the violation of any terms of any building restriction unless said action is commenced within one year from the date of the violation for which the action is sought to be brought or maintained.
Applying a "discovery rul
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