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Berg v. Frobish

United States District Court, Tenth Circuit

December 12, 2013

JERRY L. BERG, Plaintiff/ Counterclaim Defendant,
JON L. FROBISH, et al., Defendants/ Counter Claimants.


KATHRYN H. VRATIL United States District Judge

In this removed action, plaintiff brings suit against Jon L. Frobish, Gary Fugit d/b/a Cross Real Estate Management, Cross Real Estate Management L.L.C. (“CREM”), Cedar Lakes Village Condominium Association (“CLVCA”) and Simon Palmer Properties, Inc. (“Palmer”). Plaintiff asserts a claim for assault and battery against Frobish (Count 1); a claim for fraud against all defendants (Count 2); a request for injunctive relief against all defendants to allow plaintiff access to certain CLVCA records (Count 3); a claim for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., against all defendants (Count 4); and a request for injunctive relief against all defendants to allow plaintiff to attend CLVCA owner and board of director meetings (Count 5). Defendants assert various counterclaims: Frobish asserts a counterclaim for assault and battery (Count 1); Fugit, CREM, CLVCA and Palmer assert a counterclaim for fraud (Count 2); CLVCA asserts a counterclaim for breach of contract (Count 3); and all defendants seek injunctive relief to prohibit plaintiff from communicating or having contact with them or his neighbors, to require plaintiff to sell his unit and to regulate plaintiff’s presence outside of his unit (Count 4).

The parties have filed approximately 350 documents in this case, many of which are quite lengthy. There are 13 outstanding motions and two objections to a magistrate judge report and recommendations. Any civility that might have existed between the parties has long since evaporated. The filings contain name-calling and multiple redundancies, display the individuals’ disdain for their opponents and reflect nearly maniacal desires to control and punish each other. After a thorough review of the record, the Court concludes that the only relevant issue to be addressed in this federal court action is contained in one of the motions for summary judgment. Accordingly, this matter is before the Court on Defendants’ Motion For Summary Judgment (Doc. #351) filed August 16, 2013. In their motion, defendants seek summary judgment on all claims in plaintiff’s petition. For reasons set forth below, the Court sustains defendants’ motion on the alleged violations of the FDCPA. Because the sole basis for federal court jurisdiction is the FDCPA and the Court declines to exercise supplemental jurisdiction over the remaining claims and counterclaims, the Court remands this action.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving parties are entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A “genuine” factual dispute is one “on which the jury could reasonably find for the plaintiff, ” and requires more than a mere scintilla of evidence. Liberty Lobby, 477 U.S. at 252. A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Id. at 248.

The moving parties bear the initial burden of showing that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1085 (10th Cir. 2008). Once the moving parties meet their burden, the burden shifts to the nonmoving party to show that a genuine issue remains for trial with respect to the dispositive matters for which he carries the burden of proof. Nat’l Am. Ins. Co. v. Am. Re-Ins. Co., 358 F.3d 736, 739 (10th Cir. 2004); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). As to these matters, the nonmoving party may not rest on his pleadings but must set forth specific facts. Fed.R.Civ.P. 56(e)(2); Matsushita, 475 U.S. at 586-87; Justice, 527 F.3d at 1085. Conclusory allegations not supported by evidence are insufficient to establish a genuine issue of material fact. Jarvis v. Potter, 500 F.3d 1113, 1120 (10th Cir. 2007); see Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996).

When applying this standard, the Court must view the factual record in the light most favorable to the party opposing the motion for summary judgment. Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d 1255, 1260 (10th Cir. 2010); see Ricci v. DeStefano, 557 U.S. 557, 586 (2009). Summary judgment may be granted if the nonmoving party’s evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51. Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.


Collectively, the parties have written more than 130 pages of facts in their summary judgment briefs, and precious few are uncontroverted. For purposes of the relevant issue, however, relatively few facts are material. The following facts are either uncontroverted, deemed admitted or construed in the light most favorable to plaintiff:

These parties have filed or been part of a number of lawsuits pitting plaintiff against one or more defendants. Only two such lawsuits are relevant to this summary judgment order. Plaintiff brought both such actions in the District Court of Sedgwick County, Kansas. In the first, Case Number 10CV339 (“the 339 case”), plaintiff sued Frobish, CLVCA and others to gain access to records, reduce the 2010 condominium dues assessment and stop the destruction of certain portions of common property. In the second, Case Number 10CV2682 (“the 2682 case”), plaintiff sued Frobish and seven other individuals for conversion and breach of fiduciary duty.

In the 339 case, the Sedgwick County district court dismissed some defendants before the case was finally decided, and on July 6, 2010, the court granted summary judgment to Frobish and CLVCA, the only remaining defendants. See Motion Minutes Order (Doc. #352-23).[1] In a Journal Entry dated August 20, 2010, the court awarded the following attorney fees and costs pursuant to the grant of summary judgment: (1) $3, 526.97 to CLVCA from plaintiff, which consisted of $1, 077.47 in costs and expenses and $2, 449.50 in attorney fees; and (2) $1, 414.50 to Frobish from plaintiff for attorney fees. See Journal Entry (Doc. #352-22). Plaintiff later filed a motion to reconsider the summary judgment. On September 24, 2010, the court denied his motion and awarded additional attorney fees and costs to both defendants in the amount of $650.00. The court did not allocate the $650.00 award between Frobish and CLVCA, but in its handwritten Motion Minutes Order stated that “defendant’s request for additional attorney fees and costs in the amount of $650 is hereby granted and found to be reasonable.” Doc. #352-23.

The 339 case did not end with the court’s denial of plaintiff’s motion to reconsider. Although the record does not indicate when Frobish and CLVCA filed the motion, at some later date they moved for “additional orders as related to the agreed order of April 29, 2010.” See Motion Minutes Sheet (Doc. #220-14) at 1. The court denied the motion and wrote the following entry on the Motion Minutes Sheet dated July 8, 2011: “If plaintiff has violated the agreed order the appropriate method to address that violation is by contempt proceeding. The order in this case awarding attorney fees and costs to defendant against plaintiff is a judgment and defendant is entitled to use all remedies under law to collect on this award. Request for attorney fees by plaintiff is denied.” Id. Frobish and/or CLVCA thereafter moved for contempt, and on July 29, 2011 the court held an evidentiary hearing on the motion. In a Journal Entry dated August 12, 2011, the court found that plaintiff was in contempt for violating paragraph two of the court’s order dated April 29, 2010, which had enjoined plaintiff from contacting certain individuals by email. As a consequence, the court ordered plaintiff to pay reasonable expenses for the affected individuals to block receipt of plaintiff’s emails and awarded $1, 000.00 in attorney fees and $33.60 in costs. See Journal Entry (Doc. #352-25).

So far as the Court can determine, the record contains a single document relating to the 2682 case. The case caption is “Jerry Berg vs. Jon L. Frobish, et al., ” but the remaining defendants are not named. See Motion Minutes Sheet (Doc. #352-26) at 10. Plaintiff asserts that the case was one for conversion of common funds against eight individual defendants, and for purposes of this order, the Court assumes that to be true. On October 15, 2010, the court held a hearing on defendants’ motion for attorney fees, granted the motion and awarded “attorney Frobish” attorney fees in the amount of $3, 657.00. See Motion Minutes Sheet (Doc. #352-26) at 10.

While the parties disagree on most of the facts relating to the existence, legality and other details of CLVCA invoices to plaintiff and a CLVCA lien on plaintiff’s unit arising out of the 339 and 2682 cases, it is undisputed that the total amount of attorney fees and costs awarded to CLVCA and/or Frobish in these two cases is $9, 248.47.[2] Defendants’ efforts to collect this $9, 248.47 are the subject of ...

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