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Home My WebLink AboutDRB090187Design Review Bard਍ഀ ACTION FORM਍ഀ TOwxoeun¢਍ഀ C^ r.rJ MVEL4 MEW਍ഀ Department of Community Development਍ഀ 75 South Frontage Road, Vail, Colorado 81657਍ഀ tel:970.479.2139 fax: 970.479.2452਍ഀ web: www.vailgov.com਍ഀ Project Name: WESTRIDGE CONDOS DRIVEWAY਍ഀ Project Description:਍ഀ Participants:਍ഀ DRB Number: DRB090187਍ഀ REMOVE LANDSCAPING BERM, RECONSTRUCT GRAVEL DRIVEWAY WITHIN ACCESS਍ഀ EASEMENT. THIS APPLICATION WILL REMOVE SEVERAL ASPENS. THE NOTES ON THE PLAN ;਍ഀ DATED MAY 11, 2009, DESCRIBE THIS IN GREATER DETAIL.਍ഀ OWNER SMITH, JEFFREY KARL - EGLI, 06/15/2009਍ഀ 2832 KINNIKINNICK RD਍ഀ VAIL਍ഀ CO 81657਍ഀ APPLICANT NANCY ADAM 06/15/2009਍ഀ WEST RIDGE CONDO ASSOC਍ഀ 765 FOREST RD਍ഀ VAIL਍ഀ CO 81657਍ഀ Project Address: 2892 KINNICKINNICK RD VAIL਍ഀ Location:਍ഀ Legal Description: Lot: 1 Block: Subdivision: INNSBRUCK MEADOWS਍ഀ Parcel Number: 2103-143-2301-1਍ഀ Comments: SEE CONDITIONS਍ഀ BOARD/STAFF ACTION਍ഀ Motion By: Action: STAFFAPP਍ഀ Second By:਍ഀ Vote: Date of Approval: 06/22/2009਍ഀ Conditions:਍ഀ Cond: 8਍ഀ (PLAN): No changes to these plans may be made without the written consent of Town of਍ഀ Vail staff and/or the appropriate review committee(s).਍ഀ Cond: 0਍ഀ (PLAN): DRB approval does not constitute a permit for building. Please consult with਍ഀ Town of Vail Building personnel prior to construction activities.਍ഀ Cond:201਍ഀ (PLAN): DRB approval shall not become valid for 20 days following the date of਍ഀ approval, pursuant to the Vail Town Code, Chapter 12-3-3: APPEALS.਍ഀ Cond:202਍ഀ (PLAN): Approval of this project shall lapse and become void one (1) year following਍ഀ the date of final approval, unless a building permit is issued and construction is਍ഀ commenced and is diligently pursued toward completion.਍ഀ Cond: CON0010819਍ഀ If any work occurs within the right-of-way please contact the Public Works਍ഀ Department to receive a public way permit prior to begining any work.਍ഀ Cond: CON0010820਍ഀ Please consult with the Public Works Department to determine if a Revocable਍ഀ Right-of-Way Permit is necessary to perform the work you are proposing by calling਍ഀ Chris Delles at 477-3418 prior to the start of any work.਍ഀ Planner: Warren Campbell DRB Fee Paid: $20.00਍ഀ P,1਍ഀ *OWN I itettforafaticn; This application is mWlred for all proposals Imo outing tailor Changes to bulldlrW and site lm'਍ഀ i n such as roatft pakltlrlg, WWAArr addifions, landscaping, ft" 4 retakring wal* etr. Applicable Vail਍ഀ Town Cbde ,Set ors can be found at !t>6~ta = under Vall Int r mation - Town Cade Onllr're. All projecm re-਍ഀ 9u"g design reWew must re me approval ptiar to submitting a buNding permit appka*m An appika don for Design਍ഀ Re ew cOnW be WOMP cd until al! fegL*rW irfOmaWn is received by be Community Development ftwhumt, as਍ഀ outlined In ttre WtolbW remulrements. The p may also need tD be reviewed by the Tom (:curl a9 andjar the pbfr਍ഀ dng and &MmnrnenW CrJnrrrds W. Desgn review approval expires one year from the dM* of approval, unless a਍ഀ h0dirw permit is Issued and cwsbvMn commences.਍ഀ Few $no for "rdtl-Famly/carsrrt a 'dof਍ഀ $201br Sknom Allmf /Duo"਍ഀ -Y- 9W Ry X MIuNM--FarnRy Cow਍ഀ bespiplfdnaf the Rwpeft See a had Ex. A. kworporeteo herein਍ഀ phy#kal Adder 28112 Kinnktniddm** Road VaR Colorado _਍ഀ l wcW liurnbara 2103.143.23-011 -(Cbntmd Eagle Co. Air at 970-328-OW for parcel rq.)਍ഀ Pmp*W fawner; APPk8r*w (8) -l effrey Ksri Sft fh; (b) Roger Ems; (c) VOW Ridge Condominkm inveslon6 LLC਍ഀ 14&" A ddnM 2892 i(inninnicidnnidc Road, Vag, CO 81657਍ഀ DYr1f01 "f SirMa1lM"EC + ? J v , l: r-਍ഀ P1P11w0W 6ntrctj 0rwlrsr R4vrssaltaf3rra deftrap and West Rk3ge Cm&w*r m In LL਍ഀ Nagbry ltddr4W :ankh as above; West Ridge Condorrrlnksn Invesfor, LLC. cM Nancy Adam, 785 Forest fad, VaY਍ഀ Plronst: West !Midge (970) +178-6383਍ഀ 1!-i`Nolil: / han+iaosatiifa vsP.oan; NSAV1VQ&ol Fm (970'} 92%9 . (970)+176-8194਍ഀ Ira' Wks ulle ttaty; Cash M, 14C Last 4 t3C # Auth # Ow!ck #਍ഀ Fee PW.* 0 ' Recelv®d f :਍ഀ iffier; Wc, Project No: P r~O~i -O 2 40਍ഀ ZarnkV Land Use.,਍ഀ Locatiim of the f3aposat: LCt -4glock Subdvisiort_ (Ah ~ ~~Af S਍ഀ JUN I 2009਍ഀ TOWN OF VAIL਍ഀ Application for Design Review਍ഀ Minor Exterior Alteration਍ഀ TOWN OF VAIL, COLORADO਍ഀ Statement਍ഀ Statement Number: R090000675 Amount:਍ഀ $20.00 06/15/200911:33਍ഀ AM਍ഀ Payment Method:Credit Crd਍ഀ Init: JLE਍ഀ Notation:਍ഀ NANCY ADAM਍ഀ ਍ഀ Permit No: DRB090187 Type:਍ഀ ਍ഀ DRB-Minor A1t,SFR/DUP਍ഀ ਍ഀ Parcel No: 2103-143-2301-1਍ഀ Site Address: 2892 KINNICKINNICK RD਍ഀ VAIL਍ഀ Location:਍ഀ Total Fees:਍ഀ $20.00਍ഀ This Payment: $20.00਍ഀ Total ALL Pmts:਍ഀ $20.00਍ഀ Balance:਍ഀ $0.00਍ഀ ACCOUNT ITEM LIST:਍ഀ Account Code Description਍ഀ Current Pmts਍ഀ ਍ഀ ਍ഀ DR 00100003112200 DESIGN REVIEW਍ഀ -਍ഀ FEES਍ഀ ਍ഀ 20.00਍ഀ Page 1 of 1਍ഀ Warren Campbell - Signed Permit Application for Site Work਍ഀ From:਍ഀ To:਍ഀ Date:਍ഀ Subject:਍ഀ CC:਍ഀ Attachments:਍ഀ Mr. Campbell:਍ഀ 6/15/2009 10:47 AM਍ഀ Signed Permit Application for Site Work਍ഀ Attached please find a copy of the permit application signed by the property owners, Roger਍ഀ Egli and Jeff Smith, and signed by West Ridge Condominium Investors, LLC, as the holder਍ഀ of the Prescriptive Easement. In addition, attached please find a copy of the Landscape਍ഀ Design as modified from last month's site meeting and the agreement between the parties਍ഀ concerning the project.਍ഀ Please let me know when the permit is ready for pick up so we can commence this project.਍ഀ Thank you,਍ഀ o4Gac# Ofdain.਍ഀ Nancy Adam, Manager and General Counsel਍ഀ West Ridge Condominium Investors, LLC਍ഀ 765 Forest Road਍ഀ Vail, CO 81657਍ഀ NSAVail@aol.com਍ഀ 970-476-5383਍ഀ cell 970-390-4566਍ഀ Download the AOL Classifieds Toolbar for local deals at your fingertips.਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A3626... 06/15/2009਍ഀ p.2਍ഀ EXHIBIT A਍ഀ APPLICATION FOR DESIGN REVIEW਍ഀ Ae ption of the R„ Lest: Remove landscaping to install gravel driveway਍ഀ consistent with judgment in Eagle County District Court, Case No. 05CV328, and਍ഀ as described in the site plan drawing attached hereto as Ex. B and incorporated਍ഀ herein by this reference.਍ഀ Provosed Chanzes~ Property owners Jeffrey Karl Smith and Roger Egli਍ഀ request that all modifications, minor or otherwise, which are made to the plans over਍ഀ the course of the review process, be brought to their attention by co-applicant West਍ഀ Ridge Condominium Investors, LLC for additional approval before undergoing਍ഀ further review by the Town.਍ഀ Delivery of proposed modifications shall be deemed complete if e-mailed to the਍ഀ account stated on the application, with a copy of the proposed modifications e-਍ഀ mailed to X.e Aggaa@t:g-law com. The applicants agree that approval of proposed਍ഀ changes shall be deemed given if no written objection is delivered to the Town of਍ഀ Vail by 5:00 p.m. on the second business day following delivery.਍ഀ Signatu,ms: This application may be signed by the co-applicants in counterparts,਍ഀ The co-applieants agree that the Town of Vail may rely on signed copies of this਍ഀ Application that sent by facsimile or scanned and e-mailed to the Town by the਍ഀ applicants.਍ഀ l਍ഀ p.4਍ഀ AGREEMENT਍ഀ This Agreement is made as of dune 12, 2009, by and between, Jeffrey Karl਍ഀ Smith and Roger Egli ("Owrxers"), on the one hand, and West Ridge Condominium਍ഀ Investors, LLC ("West Ridge"), on the other hand, with regards to that certain਍ഀ Application for Design Review, Minor Exterior Alteration, of even date herewith਍ഀ ("Application").਍ഀ WHERI,AS, West Ridge desires to remove certain landscaping from, a਍ഀ prescriptive easement declared in Eagle County District Court, Case No. 08C1V328,਍ഀ and਍ഀ WHEREAS, the Town of Vail requires the Owners to sign the Application਍ഀ before it will approve it; and਍ഀ WHEREAS, the Owners desire to have certain landscape features included in਍ഀ the Application; and਍ഀ work,਍ഀ WHEREAS the Owners and West Ridge desire to allocate the costs for the਍ഀ NOW, THEREFORE, inconsideration of the foregoing and other good and਍ഀ valuable consideration, the receipt and sufficiency of is hereby acknowledged, the਍ഀ Owners and West Ridge agree as follows:਍ഀ 1. West Ridge shall bear the, costs and expenses of performing all work਍ഀ under the Application, excepting the fencing and boulders stated in items 6 and 12਍ഀ on Exhibit B to the Application.਍ഀ 2. The Owners shall bear the costs and expenses of performing all work਍ഀ wader the Application related to fencing and boulders stated in items 6 and 12 on਍ഀ Exhibit B to the Application.਍ഀ 3. This Agreement is solely for the benefit of the parties hereto, and the਍ഀ parties have no intent of creating any rights in or duties to any third party. By਍ഀ entering into this Agreement, neither the Owners nor West Ridge waives any right਍ഀ to claim or recover costs or expenses from any person or entity not a party to this਍ഀ Agreement-਍ഀ 4. This Agreement does not apply to any future rights or remedies any਍ഀ party may have for the use or maintenance of the Prescriptive Easement.਍ഀ 5, This Agreement may be executed in counterparts, with all such਍ഀ counterparts, when taken together, constituting a single Agreement. The parties਍ഀ i t਍ഀ P.5਍ഀ agree that counterpart copies of this Agreement may scanned and e-mailed or਍ഀ transmitted by facsimile and such copies will be accepted as an executed਍ഀ counterpart.਍ഀ 6. This Agreement shall be binding on the parties and their respective਍ഀ heirs, successors, and assigns.਍ഀ 7. The Agreement shall terminate if this Agreement and the permit਍ഀ application are not signed by all parties and delivered to West: Midge by 5:00 p.m. on਍ഀ Tuesday, June 16, 2009.਍ഀ WEST RIDGE CONDOMINIUM਍ഀ INVESTORS, LLC਍ഀ By: Nancy Adam, Manager਍ഀ ~i J ,਍ഀ J arl Smith਍ഀ Roger਍ഀ 2਍ഀ A਍ഀ fzY਍ഀ 0਍ഀ Z਍ഀ O਍ഀ D਍ഀ r਍ഀ lZ਍ഀ ~ aomio$C਍ഀ q-0a°0 '0A rn z਍ഀ m m਍ഀ r~ a 1 ~ Z ar t਍ഀ 3t ~ c 0rrmrm GDS r'D਍ഀ ~n pp~ ~~~AOp m w~਍ഀ O O~ ~rn~~T~ ~ ~~r਍ഀ Z v x rl o a਍ഀ 22਍ഀ A਍ഀ GG11਍ഀ m ACt 4CC=Ci ~ "+pr~i਍ഀ O pC =7er~1 ~ pZS=਍ഀ g rh਍ഀ O਍ഀ C-D਍ഀ Q਍ഀ Lim਍ഀ rl - N਍ഀ a ~਍ഀ rn਍ഀ D n <਍ഀ a Z $ a਍ഀ -4 _਍ഀ A a z 0਍ഀ D਍ഀ o਍ഀ -c਍ഀ ~ R਍ഀ O਍ഀ yy 4m਍ഀ b ~਍ഀ A C਍ഀ c਍ഀ D਍ഀ 1਍ഀ MOONSTONE LANDSCAPE਍ഀ & DESIGN,LLC਍ഀ PO BOX 1057਍ഀ AVON, CO. 81620਍ഀ 970-343-9540਍ഀ 'O਍ഀ T਍ഀ ;lu਍ഀ El਍ഀ d਍ഀ C'`1਍ഀ m਍ഀ m਍ഀ z I਍ഀ id਍ഀ 1਍ഀ r਍ഀ H਍ഀ =t~ r਍ഀ rn r਍ഀ 0 3~਍ഀ rti rK-~਍ഀ A '਍ഀ 39਍ഀ I I਍ഀ I਍ഀ J 4਍ഀ 000਍ഀ ryy਍ഀ I = ~ 4਍ഀ ( N਍ഀ I਍ഀ I n਍ഀ M਍ഀ L- - - - - -਍ഀ 2922 BELLFLOWER DRIVE਍ഀ VAIL, COLORADO਍ഀ U`IZ?~ocll 015 1਍ഀ TF OF VAIL਍ഀ DESIGN REVIEW਍ഀ STAFF APPROVAL.਍ഀ 60 -਍ഀ STS:਍ഀ am MAY U. em਍ഀ mawm-n mm mm਍ഀ 3:k 22਍ഀ mc0ao~਍ഀ ~ ~ D D J਍ഀ O O 44਍ഀ 3 °਍ഀ zi਍ഀ ਍ഀ ~scaw~਍ഀ oac~°~਍ഀ ~n3਍ഀ a A਍ഀ ~ 0?y਍ഀ I਍ഀ 7਍ഀ `c਍ഀ I਍ഀ I a਍ഀ l਍ഀ 1 !਍ഀ 1਍ഀ f X਍ഀ t n਍ഀ J਍ഀ a਍ഀ 2਍ഀ 1 O਍ഀ n਍ഀ 4਍ഀ T਍ഀ O਍ഀ pN਍ഀ Q਍ഀ tT਍ഀ n਍ഀ w਍ഀ to਍ഀ 0-50਍ഀ 7 A O O਍ഀ 'ao:I਍ഀ aap਍ഀ ROD਍ഀ <; a਍ഀ a਍ഀ coa਍ഀ ~ u਍ഀ F T ~਍ഀ a7 ~਍ഀ fl A rt਍ഀ O G A਍ഀ A ~਍ഀ O਍ഀ Z y਍ഀ ao਍ഀ a਍ഀ 9਍ഀ Z਍ഀ ~v਍ഀ J:k਍ഀ Iv਍ഀ O਍ഀ 1 `਍ഀ 2 ~਍ഀ ,਍ഀ 11 n਍ഀ 1'~ v ty਍ഀ a~.~o~goa਍ഀ 11਍ഀ g~.~Ngw਍ഀ O਍ഀ v~਍ഀ l਍ഀ ~~O਍ഀ z~਍ഀ oz਍ഀ y਍ഀ n0਍ഀ ~o਍ഀ '0 ~਍ഀ M਍ഀ y਍ഀ n~j 2਍ഀ a਍ഀ ,4਍ഀ ~o਍ഀ ~b਍ഀ O~਍ഀ Z SS਍ഀ v਍ഀ O਍ഀ MT~~---- _਍ഀ 0 ildG REVIEW਍ഀ STAFF APPROVAL.਍ഀ Y:.਍ഀ , `•r." C਍ഀ !਍ഀ mm਍ഀ D਍ഀ 0(f)਍ഀ m਍ഀ 000਍ഀ w਍ഀ b਍ഀ F਍ഀ f਍ഀ D਍ഀ O਍ഀ m਍ഀ r਍ഀ I਍ഀ -i I਍ഀ N { l਍ഀ y਍ഀ y y4਍ഀ N y਍ഀ y਍ഀ IN਍ഀ y਍ഀ f. cn y਍ഀ l ~਍ഀ 1 ~਍ഀ I y਍ഀ y g਍ഀ y y਍ഀ y 9਍ഀ y o l਍ഀ 1਍ഀ i਍ഀ i਍ഀ y਍ഀ p~ f y / / ./a Mop਍ഀ blo.਍ഀ Oa i ~ '1J਍ഀ r਍ഀ ~gL਍ഀ 1 ~ ,o਍ഀ m8..਍ഀ O ~ ~ m਍ഀ o ! S N0. DATE REM90N eY਍ഀ a਍ഀ x O਍ഀ x ~਍ഀ v ~਍ഀ CrJ ~਍ഀ z਍ഀ W '-3਍ഀ O਍ഀ O0 O਍ഀ x਍ഀ Tn 0਍ഀ ►-7rC~/]਍ഀ a>਍ഀ W਍ഀ F1 0਍ഀ ry,. s਍ഀ ` N਍ഀ S .਍ഀ N਍ഀ O_਍ഀ v਍ഀ Z਍ഀ N਍ഀ m਍ഀ c਍ഀ x਍ഀ rn਍ഀ m਍ഀ D਍ഀ v਍ഀ 0਍ഀ OTTLEY ACCESS਍ഀ 2902 BELLFLOWER਍ഀ VAIL. COLORADO਍ഀ PARKING LAYOUT VS. EASEMENT਍ഀ OTTLEY/West Ridge਍ഀ 0131਍ഀ I HALE • FRIESENLLP਍ഀ MATTHEW W. SPENGLER਍ഀ mspengler@halefriesen.com਍ഀ June 16, 2009਍ഀ By U.S. Mail and Electronic Mail: WCampbell@vailgov.com਍ഀ Warren Campbell਍ഀ Chief of Planning਍ഀ Town of Vail਍ഀ 75 South Frontage Road਍ഀ Vail, Colorado 81657਍ഀ 1660 Wynkoop Street਍ഀ Suite 900਍ഀ Denver, Colorado 80202਍ഀ phone: 720.904.6000਍ഀ fax: 720.904.6006਍ഀ Re: Application for Design Review filed by West Ridge Condominium Investors, LLC for਍ഀ Proposed Grading and Landscaping of Property Located at or Near 2922 Bellflower Drive਍ഀ Dear Mr. Campbell:਍ഀ As you know, this firm represents J. Dudley Ottley, Jr. and J. Dudley Ottley, Sr., the owners਍ഀ of 2902 Bellflower Drive, Vail, Colorado, in a pending lawsuit against West Ridge Condominium਍ഀ Investors, LLC ("West Ridge"), owner of a neighboring property at 2922 Bellflower Drive. This਍ഀ lawsuit, captioned Ottley v. West Ridge Condo. Investors, LLC, Eagle County District Court, Case਍ഀ No. 06CV627, relates to a property dispute between our clients and West Ridge over ownership and਍ഀ use of certain property, as well as the ability of the Ottleys to access their property via Bellflower਍ഀ Drive. The owners of neighboring parcels located directly to the north of the Ottley and West Ridge਍ഀ properties are also parties to this lawsuit, including Jeffrey Smith and Roger Egli ("the Neighbors").਍ഀ The case is scheduled for a five-day trial commencing September 4, 2009.਍ഀ We have learned that West Ridge has submitted an Application for Design Review asking for਍ഀ the Town's approval to grade and pave a substantial portion of certain property which is related to਍ഀ various issues in the pending lawsuit. Specifically, West Ridge was granted a prescriptive easement਍ഀ across property owned by the Neighbors in an earlier lawsuit, West Ridge Condo. Investors, LLC v.਍ഀ Quinn, et al., 05CV328. As the Eagle County District Court's opinion in that case makes clear, the਍ഀ prescriptive easement created was granted, in part, for the benefit of the Ottleys and others. Thus, it਍ഀ is our opinion that the Ottleys have a substantial interest in that easement. Nevertheless, West Ridge਍ഀ has not consulted with the Ottleys regarding the proposed modifications and improvements, nor have਍ഀ the Ottleys approved West Ridge's plans.਍ഀ The Ottleys oppose West Ridge's Application because it will effectively render their property਍ഀ inaccessible during the time that the proj ect is under construction. Further, the application does not਍ഀ provide a deadline, or even an expected time frame for completion of the project. As a result, the਍ഀ Ottleys, and their tenants, do not know how long, or to what degree, access to their property will be਍ഀ disrupted. Second, the application does not provide a description of work and does not require that਍ഀ the work will be completed in phases, making it likely that the easement will be blocked during the਍ഀ F 0 F.਍ഀ 0਍ഀ Warren Campbell.਍ഀ June 16, 2009਍ഀ Page 2਍ഀ entire scope of work. Finally, the application does not include any provision to provide the Ottleys਍ഀ with reasonable access to their property during the construction period.਍ഀ In addition, the existence and location of a driveway previously located on the prescriptive਍ഀ easement may be material to certain claims in the pending lawsuit. Based on our understanding of਍ഀ the proposed grading and paving work, evidence related to the location and existence of this਍ഀ driveway may be destroyed or otherwise damaged if West Ridge's application is granted.਍ഀ Given the pending lawsuit, and the fact that the Ottleys may be considered to have a਍ഀ substantial interest in the property which is the subject of West Ridge's pending application,਍ഀ approval of such an application is premature at this time. For these reasons, we ask that the Town of਍ഀ Vail defer taking any action on any application for design review that would materially impact਍ഀ property which is at issue in Ottley v. West Ridge Condo. Investors, LLC, 06CV627, until after the਍ഀ Court issues a ruling in that case and it is clear that West Ridge's planned modifications will not਍ഀ impact the Ottleys' property interests or otherwise interfere with access to their property. If the਍ഀ Town elects to consider West Ridge's application at this time, the Town should not approve the਍ഀ application unless: (1) West Ridge provides a copy of the application and other supporting਍ഀ documentation to the Ottleys, and (2) the Ottleys approve the application. If the Town approves਍ഀ West Ridge's application without the Ottleys' approval, the Ottleys reserve the right to seek the਍ഀ court's intervention in order to protect the Ottleys' property interests pending resolution of the਍ഀ related litigation.਍ഀ If you have any questions regarding the above-referenced litigation, please do not hesitate to਍ഀ contact me at 720/904-6000.਍ഀ Sincerely,਍ഀ Matthew W. Spengler਍ഀ c: J. Dudley Ottley, Jr.਍ഀ Nancy Adam, General Manager, West Ridge Investors, LLC਍ഀ Randall Livingston, Esq.਍ഀ Allan L. Hale, Esq.਍ഀ Amanda A. Bradley, Esq.਍ഀ Land Title Guarantee Cmpany਍ഀ Date: October 11, 2007਍ഀ COPY਍ഀ Enclosed please find the title insurance policy for your property ► F[ nWER DRIVE VAIL CO 8165਍ഀ located at UNIT 3 WEST RIDGE CONDOMINIUM AI.A 2922 BEL਍ഀ The following endorsements are included in this policy:਍ഀ Please review this policy in its entirety. In the event that you find any discrepancy, or if you have any questions਍ഀ regarding your final title policy, you may contact Title Department਍ഀ Phone: 970-476-2251 Fax:970-476-4732਍ഀ Please refer to our Order No. V500191.90.1਍ഀ Should you decide to sell the property described in this policy, or if you are required to purchase a new title਍ഀ commitment for mortgage purposes, you may be entitled to a credit toward future title insurance premiums.਍ഀ Land Tide Guarantee Company will retain a copy of this policy so we will be able to provide future products਍ഀ and services to you quickly and efficiently.਍ഀ Thank you for giving us the opportunity to serve you.਍ഀ Sincerely,਍ഀ Land Title Guarantee Company਍ഀ LTG Policy No. CTAI50019190.1਍ഀ Form AO/CHI਍ഀ Chicago Policy No. 72106-2003553਍ഀ Our Order No. V50019190.1 Schedule A Amount $535,000.00਍ഀ Property Address: UNIT 3, WEST RIDGE CONDOMINIUM, AKA 2922 BELLFLOWER DRIVE VAIL CO 81657਍ഀ 1. Policy Date: October 08, 2007 at 5:00 P.M.਍ഀ 2. Name of Insured:਍ഀ WEST RIDGE CONDOMINIUM INVESTORS, L.L.C., A COLORADO LIMITED LIABILITY COMPANY਍ഀ 3. The estate or interest in the land described or referred to in this Schedule and which is covered by this policy is:਍ഀ A Fee Simple਍ഀ 4. Title to the estate or interest covered by this policy at the date hereof is vested in:਍ഀ WEST RIDGE CONDOMINIUM INVESTORS, L.L.C., A COLORADO LIMITED LIABILITY COMPANY਍ഀ 5. The land referred to in this policy is described as follows:਍ഀ CONDOMINIUM UNIT 3, WEST RIDGE CONDOMINIUM, ACCORDING TO THE CONDOMINIUM MAP਍ഀ THEREOF RECORDED DECEMBER 7, 1972, IN BOOK 226 AT PAGE 632 AND AS DEFINED IN਍ഀ CONDOMINIUM DECLARATION RECORDED DECEMBER 7, 1972, IN BOOK 226 AT PAGE 631,਍ഀ COUNTY OF EAGLE, STATE OF COLORADO.਍ഀ This Policy valid only if Schedule B is attached.਍ഀ Land Title Guarantee Company਍ഀ Representing Chicago Title Insurance Company਍ഀ LTG Policy No. CTAI50019190.1਍ഀ Form AO/CHI਍ഀ Chicago Policy No. 72106-2003553਍ഀ Our Order No. V50019190.1਍ഀ Schedule B਍ഀ This policy does not insure against loss or damage (and the Company will not pay costs, at(orneys' fees or expenses)਍ഀ which arise by reason of:਍ഀ General Exceptions:਍ഀ 1. Rights or claims of parties in possession not shown by the public records.਍ഀ 2. Easements, or claims of easements, not shown by the public records.਍ഀ 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a correct survey and਍ഀ inspection of the premises would disclose and which are not shown by the public records.਍ഀ 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and਍ഀ not shown by the public records.਍ഀ 5. TAXES AND ASSESSMENTS FOR THE YEAR 2007 AND SUBSEQUENT YEARS, NOT YET DUE਍ഀ OR PAYABLE.਍ഀ 6. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE਍ഀ THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES਍ഀ AS RESERVED IN UNITED STATES PATENT RECORDED APRIL 18, 1934, IN BOOK 123਍ഀ AT PAGE 3.਍ഀ 7. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE਍ഀ UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED APRIL 18, 1934,਍ഀ IN BOOK 123 AT PAGE 3.਍ഀ 8. THOSE PROVISIONS, COVENANTS AND CONDITIONS, EASEMENTS AND RESTRICTIONS.਍ഀ WHICH ARE A BURDEN TO THE CONDOMINIUM UNIT DESCRIBED IN SCHEDULE A, BUT਍ഀ OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR,਍ഀ RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS,਍ഀ DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS਍ഀ SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT਍ഀ SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW AS CONTAINED਍ഀ N INSTRUMENT RECORDED DECEMBER 07, 1972, IN BOOK 226 AT PAGE 631.਍ഀ TES ON਍ഀ 9. EASEMEN, OF WSTI RIDGE CONDOMINIUM RECORDED DECEMBER 7,192 UNDER਍ഀ HE PLAT਍ഀ RECEPTION NO. 122430.਍ഀ 10. UANY TI OVENANTS, AGREEMENTS, ASSESSMENTS AND/OR EASEMENTS FOR PUBLIC਍ഀ SE SEWER, DRAINAGE AND OTHER INCIDENTAL UT AL PURPOSES THAT AFFECT THE਍ഀ LTG Policy No. CTAI50019190.1਍ഀ Form AO/CHI਍ഀ Chicago Policy No. 72106-2003553਍ഀ Our Order No. V50019190.1਍ഀ Schedule B਍ഀ COMMON ELEMENTS ONLY AS SHOWN ON THE MAP OF SAID CONDOMINIUM OR AS CREATED਍ഀ OR RESERVED IN VARIOUS INSTRUMENTS OF PUBLIC RECORD.਍ഀ 11. ANY LOSS OR DAMAGE ARISING FROM THE ACTION COMMENCED IN EAGLE COUNTY਍ഀ DISTRICT COURT UNDER CASE NO. 2006CV627, J. DUDLEY OTTLEY, JR. AND J.਍ഀ DUDLEY OTTLEY, SR. AS PLAINTIFFS, AND WEST RIDGE CONDOMINIUM INVESTORS,਍ഀ L.L.C., A COLORADO LIMITED LIABILITY COMPANY, AS DEFENDANT.਍ഀ 12. DEED OF TRUST DATED MAY 22, 2007 FROM WEST RIDGE CONDOMINIUM INVESTORS,਍ഀ L.L.C., A COLORADO LIMITED LIABILITY COMPANY TO THE PUBLIC TRUSTEE OF਍ഀ EAGLE COUNTY FOR THE USE OF BLUE SKY MORTGAGE, LLC TO SECURE THE SUM OF਍ഀ $375,000.00, AND ANY OTHER AMOUNTS PAYABLE UNDER THE TERMS THEREOF,਍ഀ RECORDED JUNE 04, 2007, UNDER RECEPTION NO. 200714269.਍ഀ SAID DEED OF TRUST WAS ASSIGNED TO OTTAWA SAVINGS BANK IN ASSIGNMENT਍ഀ RECORDED JUNE 04, 2007, UNDER RECEPTION NO. 200714270.਍ഀ MODIFICATION AGREEMENT IN CONNECTION WITH SAID DEED OF TRUST WAS RECORDED਍ഀ AT RECEPTION NO.਍ഀ n ru- t-Ib-Iezu P.2਍ഀ First American Title Insurance Company਍ഀ O'WNER'S POLICY਍ഀ SCHEDULE A਍ഀ Order No. 0804487 Insurance Amount: $733,000.00਍ഀ Policy No. J1963228 Premium Amount S1,75800਍ഀ Date of Policy: June A 2004 at 5:00਍ഀ 1. Name of Tnstired:਍ഀ Jeffrey Karl Smith and Roger Egli਍ഀ • 2. The estate or interest in the land which is covered by the policy is:਍ഀ FEE SnKPLE਍ഀ 3. Title to the estate or interest in the land is vested in:਍ഀ Jeffrey Karl Smith and Roger Egli, in joint tenancy਍ഀ 4. The land referred to in this policy is located in tltc Slide of਍ഀ Colorado, County of Eagle, and is described as follows:਍ഀ Lot 1,਍ഀ SECOND AMIl±ND1ViEN°i' TO THE FINAL PLAT OF INNSBRUCK ]MEADOWS,਍ഀ according to the Plat thereof filed Jaly 17,1996, in Book 699 at Page 999 as Reception਍ഀ No. 595989,਍ഀ County of Eagle, State of Colorado.਍ഀ Countersignature Authorized Officer or Agent਍ഀ This Policy is invalid unless the coversheet and Schedule B are attached.਍ഀ ALTA Owner's Policy (10-17-92)਍ഀ FIRST AMERICAN TITLE INSURANCE COMPANY਍ഀ SMITH 0020਍ഀ , ~ ,~~.o Diu-4'/ti-180਍ഀ ਍ഀ SCHEDULE B਍ഀ Order No: 0804487਍ഀ Policy No:਍ഀ PARTI਍ഀ This policy does not insure against loss or damage (and the Company will not pay costs,਍ഀ attorneys' fccs or expenses) which arise by reason of.਍ഀ 1.਍ഀ Any facts, rights, interests, or claims which are not shown by the public records but which਍ഀ could he ascertained by an inspections of said land or by making inquiry of persons in਍ഀ possession thereof.਍ഀ 2.਍ഀ Easements, or claims of easements, not shown by the public records.਍ഀ 3.਍ഀ Discavpan conflicts in boundary lines, shortage in area, encroachments, and any other਍ഀ facts which a correct survey would disclose and which are not shown by the public records.਍ഀ • 4.਍ഀ Any lien, or right to a lien for services, labor or material heretofore or hereafter furnished,਍ഀ imposed by law and not shown by the public records.਍ഀ 5.਍ഀ Taxes due and payable; and any tax, special assessments, charge or lien imposed for water or਍ഀ sewer services, or for any other special taxing district.਍ഀ 6.਍ഀ Right of the Proprietor of a Win or Lode to extract and remove his ore therefrom, should the਍ഀ some be found to penetrate or intersect the premises hereby granted, as reserved in United਍ഀ •਍ഀ States Patent recorded April 18, 1934, in Book 123 at Page 3.਍ഀ 7.਍ഀ Right of way for ditches or canals constructed by the authority of the United states, as਍ഀ reserved in United States Patent recorded April 18, 1934, in Book 123 at Page 3.਍ഀ 8.਍ഀ Easement and right of way to construct, reconstruct, repair, change, mdsrge, re-phase,਍ഀ operate and maintain an underground electric transmission or distribution line, as granted by਍ഀ AM. Bros. Development, Inc. to Holy Cross Electric Association, Inc. by instrument਍ഀ •਍ഀ recorded June 30, 1995, in Book 670 at Page 644 as Reception No. 566663, said easement਍ഀ being ten (10) feet in width.਍ഀ 9.਍ഀ Trench, Conduit and Vault Agreement between AM.13ms. Development, Inc. and Holy਍ഀ Cross Electric Association, Inc. recorded July 7,1995, in Book 670 at Page 978 as Reception਍ഀ No. 566997.਍ഀ 10.਍ഀ Conditions, Restrictions and Easements contained in the Amended and Restated਍ഀ Covenants਍ഀ ,਍ഀ Declaration of Covenants; Conditions, Restrictions and Easements of Innsbruck Meadows਍ഀ recorded December 13, 1996, in Book 713 at Page 854, as Reception No. 609832.਍ഀ 11.਍ഀ Bylaws for Innsbruck Meadows Property Association, inc. recorded December 13. 1996, in਍ഀ Book 713 at Page 855 as Reception No. 609833.਍ഀ 12.਍ഀ Covenants, Conditions, Restrictions, Notes; Easements, Rcscrvations and Rights of Ways as਍ഀ shown on the Plat of Subdivision filed July 17, 1996, in Book 699 at Page 999 as Reception਍ഀ •਍ഀ P.3਍ഀ SMITH 0021਍ഀ - aru-vro-AWCU p.4਍ഀ _ _No. 595989.਍ഀ 13. All right, title, claim, demand or interest based on adverse possession or otherwise, arising਍ഀ out of the existence of a gravel driveway located partly on the land along the southerly lot਍ഀ line, as depicted on Improvement Location Certificate made by Marcin Engineering LLC਍ഀ dated June 8, 2004, Job No. 04136.਍ഀ 14. All right, title, claim, domand or interest based on adverse possession or otherwise, arising਍ഀ out of the existence of a "Subdivision Sign" located partly on the land, as depicted on਍ഀ Improvement Location Certificate made by Marcia Engineering LLC dated June 8, 2004, Job਍ഀ No. 04136.਍ഀ 15. Apparent sewer easement(s) as evidenced by the existence of Sewer Manhole's located on the਍ഀ land, as depicted on Improvement Location Certificate made by Marcia Engineering LLC਍ഀ dated June 8, 2004, Job No. 04136.਍ഀ 16. Deed of Trust from Jeffrey Karl Smith and Roger Egli to the Public Trustee of Eagle County਍ഀ • for the use of Maverick Lending Network, to secure $586,400.00, dated June 18, 2004, and਍ഀ recorded June 24,20D4, at Region No. 881595.਍ഀ 0਍ഀ •਍ഀ 0਍ഀ SMITH 0022਍ഀ DISTRICT COURT, EAGLE COUNTY, COLORADO਍ഀ 885 Chambers Avenue, P.O. Box 597਍ഀ EFILED Document਍ഀ Eagle, Colorado 81631-0597਍ഀ Filing Date: May 31 2007 2:29PM 1਍ഀ Plaintiff:਍ഀ Filing ID: 15068868਍ഀ WEST RIDGE CONDOMINIUM਍ഀ Review Clerk: Karen Lujan਍ഀ INVESTORS, LLC;਍ഀ Defendants:਍ഀ ♦ COURT USE ONLY਍ഀ DANIEL M. QUINN, PATRICE਍ഀ HALLORAN, JEFFREY KARL SMITH,਍ഀ ROGER EGLI, AFFILIATED FINANCIAL਍ഀ GROUP INC., MORTGAGE਍ഀ ELECTRONIC REGISTRATION਍ഀ SYSTEMS INC., MAVERICK LENDING਍ഀ NETWORK, ALPINE BANK.਍ഀ Case Number: 2005CV328਍ഀ Div.: 2਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ The Court has jurisdiction over the parties and the subject matter of this action.਍ഀ Venue is proper in this Court.਍ഀ A. The Parties਍ഀ Plaintiff West Ridge Condominium Investors, LLC ("Plaintiff") filed suit on June਍ഀ 1, 2005. Plaintiff owns all four condominium units in the West Ridge Condominiums਍ഀ ("West Ridge Condominiums"), which is located on a part of Lot 1, Block 8 of਍ഀ Intermountain in Vail, Colorado at 2992 Bellflower Drive, Vail, Colorado.਍ഀ Nancy S. Adam ("Adam") is Plaintiff's Manager and owns the majority interest in਍ഀ Plaintiff. The other owner of Plaintiff is NSA Investments, Inc., and Adam owns the਍ഀ D਍ഀ IT਍ഀ majority of that company.਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et al਍ഀ 05CV328਍ഀ Defendants Jeffrey Karl Smith ("Smith") and Roger Egli ("Egli") own Lot 1 of਍ഀ Innsbruck Meadows, Vail, Colorado ("Smith Lot 1"), 2832 Kinnikinnick Drive, Vail,਍ഀ Colorado, immediately north and east of West Ridge Condominiums. Smith and Egli਍ഀ purchased Smith Lot I from Juanita Irene Pedotto ("Pedotto") in 2004.਍ഀ Defendants Daniel M. Quinn ("Quinn") and Patrice Halloran ("Halloran") own਍ഀ Lot 4 of Innsbruck Meadows, Vail, Colorado ("Quinn Lot 4"), immediately and east of਍ഀ Smith Lot 1. Quinn and Halloran purchased Quinn Lot 4 from Smith in 2004.਍ഀ Defendants Affiliated Financial Group, Inc., Mortgage Electronic Registration਍ഀ Systems, Inc., Maverick Lending Network, and Alpine Bank are parries because each਍ഀ claims a lien interest in Smith Lot 1 or Quinn Lot 4.਍ഀ B. Claims਍ഀ Plaintiff claims adverse title to a portion of Smith Lot 1 and a portion of Quinn਍ഀ Lot 4 ("Disputed Parcel") or in the alternative, a prescriptive easement over those਍ഀ properties. Smith and Egli counterclaim for damages and an injunction. Smith and Egli਍ഀ assert claims for an injunction and damages for trespass.਍ഀ C. Plaintiff's Pro=਍ഀ In 1970, Beatrice Ruder ("Ruder") conveyed 1.57 acres of her 160 acres to Vail਍ഀ Intermountain Associates, L.P. ("Vail Intermountain"). That company platted the਍ഀ Intermountain subdivision in 1971. Vail Intermountain conveyed Lot 1, Block 8 of਍ഀ Intermountain ("Intermountain Property") to William Holden, Joel Fritz, and Robert਍ഀ Lindstrom (collectively, "Developers") in 1972. In 1972, the Developers replatted the਍ഀ Intermountain Property into two separate parcels. The western parcel is Plaintiff's਍ഀ property.਍ഀ 2਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et at਍ഀ o5CV328਍ഀ Joel Fritz and his two partners completed the West Ridge building in 1972 and਍ഀ installed a paved driveway within the Disputed Parcel.਍ഀ In 1973, the Developers conveyed the condominium units in the West Ridge਍ഀ Condominiums to individuals, and those units were the subject of additional, separate਍ഀ conveyances until Warren and Laurie Miller purchased all four units in 1989 and 1990.਍ഀ Adam acquired title to all of the units that now constitute the West Ridge Condominiums਍ഀ in 1994. On November 30, 1998, Adam conveyed the West Ridge Condominiums to਍ഀ Plaintiff, in which Adam owns the majority of interests.਍ഀ The West Ridge Condominiums have been predominately used as a rental਍ഀ property since its construction in 1972. At some point, by at least 1978, the਍ഀ condominium parking lot was paved with asphalt, remnants of which are visible as of the਍ഀ date of the trial in October 2006. Since acquisition, Plaintiff has operated the West Ridge਍ഀ Condominiums as an apartment building, renting the four units.਍ഀ Defendants' expert, James Kunkel ("Kunkel"), testified that the Disputed Parcel਍ഀ has been continuously used to a lesser or greater extent from 1982 through 2004.਍ഀ Plaintiff's expert, Duane "Duke" Fehringer ("Fehringer"), testified that the਍ഀ Disputed Parcel has been continuously used since 1979. Mr. Fehringer also testified that਍ഀ the legal description he prepared as Exhibit A to the original complaint filed in this਍ഀ matter is based on the historically narrower or lesser use of the Disputed Parcel as it਍ഀ existed in 1998.਍ഀ Erwin Bachrach (`Bachrach") owned condominium Unit I of the West Ridge਍ഀ Condominiums and occupied it or rented it to tenants during the period from September਍ഀ 28, 1973 to September 20, 1977. He testified that the Pedotto Property, defined below in਍ഀ 3਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et al਍ഀ 05CV328਍ഀ Section D, was vacant and unfenced during the entire time he owned his unit. He also਍ഀ testified that parking at the West Ridge Condominiums has not materially changed from਍ഀ the time that he owned Unit 1.਍ഀ D. Defendants' Properties਍ഀ The Innsbruck Meadows subdivision and the Intermountain subdivision were਍ഀ created at different times and by different developers. The two subdivisions originally਍ഀ were part of a 160-acre parcel owned by Ruder and located in Eagle County. The਍ഀ properties were incorporated into the Town of Vail in 1987.਍ഀ In 1965, Ruder conveyed part of her property to Gene Ray Hilton ("Hilton"). In਍ഀ 1966, Hilton sold 23.3 acres of his property to Pedotto and Mel Hutchinson. In two਍ഀ transactions in 1967 but each with the effective date of April 2, 1966, and after਍ഀ transactions not relevant here, Pedotto acquired sole title to that 23.3 acres.਍ഀ The Innsbruck Meadows subdivision was created on 2.49 acres ("Pedotto਍ഀ Property") of those 23.3 acres.਍ഀ Aerial photographs taken in 1982, 1989, and 1994 show no evidence of enclosure਍ഀ or development on the Pedotto Property. In those years, the Pedotto Property had no਍ഀ fencing, no housing, no occupants, and no development. Various photographs depict਍ഀ vehicles parked on the Pedotto Property.਍ഀ Prior to the development of Innsbruck Meadows, access to the Pedotto Property਍ഀ was not restricted by a fence or other barrier. Neighbors put the vacant, unenclosed, and਍ഀ unoccupied Pedotto Property into several transitory uses, using it like a park, including a਍ഀ pedestrian shortcut, a dog run, and a vehicle parking area.਍ഀ 4਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et al਍ഀ 05CV328਍ഀ Greg Amsden ("Amsden"), president of the company that developed Innsbruck਍ഀ Meadows, was a real estate broker in Vail from 1982 and very familiar with the Pedotto਍ഀ Property and its environs. He testified that the Pedotto Property was vacant and unfenced਍ഀ from 1982 until after development of Innsbruck Meadows commenced in 1994.਍ഀ Mr. Kunkel is a surveyor with many years of experience in Eagle County and is਍ഀ familiar with the Pedotto Property. He testified that the Pedotto property was vacant,਍ഀ unenclosed, and unoccupied before its development in the mid-nineties.਍ഀ Adam testified that the Pedotto Property was vacant and contained no structures਍ഀ when she purchased the West Ridge Condominiums in 1994.਍ഀ In 1993, Pedotto and Am. Bros. Development, Inc. filed an application with the਍ഀ Town of Vail to subdivide the Pedotto Property into Innsbruck Meadows. Ex. VV. Smith਍ഀ Lot 1 and Quinn Lot 4 are among the parcels created in that subdivision. The present਍ഀ dispute arose out of the development of the Pedotto Property that began with that 1993਍ഀ subdivision application.਍ഀ In 1976, Developers conveyed the eastern parcel in the Intermountain Property to਍ഀ Vail Intermountain, which constructed a second condominium building on the lot. The਍ഀ eastern parcel is currently owned by the Ottley family ("Ottley Condominium").਍ഀ The 1972 replat of the West Ridge Condominiums contains a 16'16" access਍ഀ easement ("Access Easement") along the northern edge of the property for the benefit of਍ഀ the Ottley Condominium. The replat extends the drawing of the Access Easement onto਍ഀ the Ottley Condominium as well as the West Ridge Condominiums. A description of the਍ഀ Access Easement was also recorded at Book 241, Page 305 of the real property records of਍ഀ Eagle County.਍ഀ 5਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et al਍ഀ 05CV328਍ഀ E. Disputed Parcel.਍ഀ The Disputed Parcel is legally described by Duane Fehringer of Inter-Mountain਍ഀ Engineering Ltd. as follows:਍ഀ A parcel of land located in Lot 1, Innsbruck Meadows, a plat recorded in਍ഀ Book 699 at Page 999, and Lot 4, Innsbruck Meadows, a plat recorded਍ഀ under Reception Number 579207, in Book 683 at Page 201 in the Office਍ഀ of the Clerk and Recorder of Eagle County, Colorado, more particularly਍ഀ described as follows;਍ഀ Commencing at the Northwest corner of Lot 9, Vail Intermountain਍ഀ Development Subdivision - Block 8, a subdivision recorded in Book 221਍ഀ at Page 547 in the Office of the Clerk and Recorder of Eagle County,਍ഀ Colorado, and being on the south line of said Lot 4, Innsbruck Meadows,਍ഀ Thence N 87°40'06" W along said south line a distance of 100.35 feet to਍ഀ the True Point of Beginning of the parcel herein described;਍ഀ Thence continuing along said south line N 87°40'06" W a distance of਍ഀ 145.64 feet to the southwest corner of Lot 1, Innsbruck Meadows;਍ഀ Thence N 11 '52'l 3 " E along the west line of said Innsbruck Meadows a਍ഀ distance of 38.71 feet to a point;਍ഀ Thence S 38°04'09" E a distance of 9.62 feet to a point of curvature of a਍ഀ curve to the left having radius of 59.00 feet;਍ഀ Thence 34.38 feet along said curve through a central angle of 33'23'13",਍ഀ having a chord bearing and distance of S 54°45'46" E, 33.90 feet to a਍ഀ point of compound curve having a radius of 190.00 feet;਍ഀ Thence 49.83 feet along said curve through a central angle of 15°01'42",਍ഀ having a chord bearing and distance of S 78°56"44" E, 49.69 feet to a਍ഀ point of tangency;਍ഀ Thence S 86°27'35" E a distance of 52.88 feet to a point;਍ഀ Thence S 31°38' 16" E a distance of 4.56 feet to a point on the south line਍ഀ of said Innsbruck Meadows and the True Point of Beginning, containing਍ഀ 1,503 square feet or 0.035 acres more or less.਍ഀ 6਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et al਍ഀ 05CV328਍ഀ Mr. Fehringer testified that the Disputed Parcel's legal description was based on a਍ഀ 2005 physical visit to the property and a 1998 Improvement Location Certificate prepared਍ഀ by Inter-Mountain Engineering in which the curve for the Disputed Parcel was actually਍ഀ measured and surveyed.਍ഀ Mr. Fehringer testified that the 1998 Improvement Location Certificate was not਍ഀ done for the benefit of Plaintiff, but was performed for the property to the east of the਍ഀ West Ridge Condominiums, i.e., the Ottley or Howie property.਍ഀ Tenants, guests, and owners of the West Ridge Condominiums used the Disputed਍ഀ Parcel as either access and/or parking from 1972 through 1993 with no apparent਍ഀ opposition from Pedotto. Development of the Innsbruck Meadows project in 1993 did਍ഀ nothing to change the use of the Disputed Parcel, other than to identify with some greater਍ഀ precision the nature of the encroachment for the respective property owners and their਍ഀ public and private land use planners.਍ഀ Smith and Egli purchased the Smith Lot 1 in 2004. This acquisition was made਍ഀ with the knowledge that their Title Company refused to insure the Disputed Parcel਍ഀ because of Plaintiff's claim of adverse possession to the Disputed Parcel. Additionally,਍ഀ Smith and Egli signed an agreement with Ms. Pedotto acknowledging and accepting full਍ഀ obligation and responsibility for the property line dispute.਍ഀ Smith and Egli petitioned the Town of Vail Community Development "for a਍ഀ wood split rail fence to define our property line on the south/south west corner of our lot"਍ഀ in late 2004, creating the first noticeable challenge to the use of the Disputed Property.਍ഀ 7਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et al਍ഀ 05CV328਍ഀ The Town of Vail responded to Smith and Egli citing Title 14-10-H-1, Vail Town਍ഀ Code which states, "The placement of walls and fences shall respect existing land forms਍ഀ and fit into land massing rather than arbitrarily follow site boundary lines."਍ഀ Smith testified that he placed rocks along driveway line in order to establish the਍ഀ property lines.਍ഀ CONCLUSIONS OF LAW਍ഀ A. Plaintiff has a Prescriptive Easement by Adverse Possession.਍ഀ An easement is an interest in property that, though distinct from an ownership਍ഀ interest in the land itself, nevertheless confers upon the holder of the easement an਍ഀ enforceable right to use property of another for specific purposes. An easement may be਍ഀ established in a number of ways, including by prescription. Wright v. Horse Creek਍ഀ Ranches, 697 P.2d 384, 387-88 (Colo. 1985).਍ഀ The parties have each asserted a contrasting character to the historical use of the਍ഀ Disputed Parcel as access and/or parking for the benefit of the tenants of the West Ridge਍ഀ Condominiums. Defendants urge the Court to find the historical use of the Disputed਍ഀ Parcel as "permissive." Plaintiff counters, asserting that such use was "adverse" Each਍ഀ party asserts use creates a legal presumption of comparable dignity.਍ഀ Defendants assert that the use of another's property that is vacant, unenclosed,਍ഀ and unoccupied is presumed to be permissive. Plaintiff maintains that the use of another਍ഀ person's property for an eighteen year period is presumed to be adverse. The Court finds਍ഀ the facts presented at trial mandate an even different outcome, one that parallels the਍ഀ theory of adverse possession, though is fundamentally characteristic of a non-exclusive,਍ഀ intermittent use by Plaintiff's tenants, guests and owners.਍ഀ 8਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et al਍ഀ 05C V328਍ഀ The continued assertion and use of an easement for a period of eighteen years਍ഀ creates an "easement by prescription." Durbin v. Bonanza Corp., 716 P2.d 1124 (Colo.਍ഀ App. 1986); C.R.S. 38-41-101. This doctrine is analogous to that of adverse possession,਍ഀ yielding only a right of "use," and not one of "possession." Hutson v. Agricultural Ditch਍ഀ & Reservoir Co., 723 P.2d 736 (Colo. 1986). Colorado law on prescriptive easements਍ഀ has effectively become an extension of the doctrine of adverse possession, requiring all਍ഀ the same elements - actual, adverse, hostile, exclusive and uninterrupted possession. The਍ഀ "continuous or uninterrupted use" required of adverse possession gives way to selective਍ഀ use and not necessarily actual physical possession to the exclusion of all others. Rivera V.਍ഀ Queree, 358 P.2d 40 (1960).਍ഀ Actual possession is established where the claimant shows the property was used਍ഀ in a manner commensurate with its particular attributes. Dory v. Chalk, 632 P.2d 644਍ഀ (Colo. App. 1981). The historical use of the Disputed Parcel shows an uninterrupted use਍ഀ of the disputed land for access to, and parking for, the occupants of the West Ridge਍ഀ Condominiums from circa 1972 through 2004, commensurate with the use of vacant land.਍ഀ The historical use of the Disputed Parcel was adverse and hostile to the record owner,਍ഀ without permission or compensation. Joel Fritz and his two partners installed a paved਍ഀ driveway within the Disputed Parcel in 1972. Thereafter, that area was generally਍ഀ maintained by various West Ridge Condominium owners as an access and parking਍ഀ amenity for the four condominiums.਍ഀ Defendants' assertion that Plaintiff's claim of adverse possession is defeated due਍ഀ to the use of the Disputed Parcel by tenants to the east of the West Ridge Condominiums਍ഀ is not supported by any Colorado law, nor do Defendants cite any case law in support਍ഀ 9਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et at਍ഀ 05CV328਍ഀ thereof. See C.R.C.P. 121 §1-15(3). A claimant's possession need not be absolutely਍ഀ exclusive in order to attain the degree of exclusivity required for adverse possession.਍ഀ Smith v. Hayden, 772 P.2d 47, 53 (Colo. 1989). Instead a claimant need only act as the਍ഀ average landowner would to assert the exclusive nature of the landowner's possession.਍ഀ Id਍ഀ The distinction between "adverse possession" and a "prescriptive easement" lies਍ഀ principally with the manner in which either land owner historically sought to possess the਍ഀ Disputed Parcel to the exclusion of the other. In this case, the intermittent use of the਍ഀ Disputed Parcel on a long term basis satisfies the requirement for open, notorious and਍ഀ continuous use. Weisiger v. Harbor, 62 P.3d 1069 (Colo. App. 2002); Clinger v.਍ഀ Hartshorn, 89 P.3d 462 (Colo. App.2003)਍ഀ B. Defendant's Counterclaims far Trespass.਍ഀ Defendants' counterclaims for trespass are dismissed. As in Mulford v. Rowland,਍ഀ 100 P. 603, 607 (Colo. 1909), Defendants Smith and Egli, before they acquired their਍ഀ interest in the properties, were thoroughly conversant with Plaintiff's claim. While the਍ഀ record did not disclose a perfect chain of title in the West Ridge Condominiums, Smith਍ഀ and Egli knew that Plaintiff was asserting title, and was in and had been in exclusive਍ഀ adverse possession of the property for many years, exercising ownership, and had paid਍ഀ for its maintenance. Notwithstanding this knowledge, Smith and Egli received their਍ഀ deed, paid the purchase price, and thereby took their chances. See id.਍ഀ A grantee is estopped from asserting his claim when, in addition to notice or਍ഀ knowledge, something in the transaction disclosed that the parties intended the਍ഀ encumbrance to be excluded. Reinhardt v. Meyer, 385 P.2d 597, 600 (Colo. 1963). In਍ഀ 10਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et al਍ഀ 05CV328਍ഀ this case, the "something in the transaction" is Smith and Egli's Title Insurance, which਍ഀ excepted the Disputed Parcel from title insurance. This is further buttressed by the਍ഀ agreement Smith and Egli signed with their predecessor in interest, Ms. Juanita Pedotto.਍ഀ Accordingly, Smith and Egli cannot now assert a claim of trespass against Plaintiff.਍ഀ Rather, the buyers should have acted on the information obtained prior to their purchase਍ഀ of 2892 Kinnikinnick by investigating thoroughly. Nielson v. Scott, 53 P.3d 777, 780਍ഀ (Colo. App. 2002).਍ഀ No evidence was presented at trial suggesting that Smith and Egli were prevented਍ഀ from making a full investigation of this property. The means of knowledge were readily਍ഀ at hand and available to them. "If a purchaser of land does not avail himself of the means਍ഀ and opportunities which are afforded him for acquainting himself with the character and਍ഀ value of the land, he will not be heard to say that he has been deceived by a vendor's਍ഀ representations." Taylor v. Arneill, 268 P.2d 695 (Colo. 1954) (internal quotations and਍ഀ citations omitted).਍ഀ Smith and Egli do not dispute that they purchased their property "as is." "As is"਍ഀ has no other meaning than that the yard in all of its dimensions was purchased in its then-਍ഀ existing state. See Flinn v. Treadwell, 207 P.2d 967, 970 (Colo. 1949). If this clear਍ഀ condition was not to the liking of Smith and Egli, they had their remedy of negotiating਍ഀ price or re-negotiating their contract to purchase the property, which they did not pursue.਍ഀ "Failing in these matters, they proceeded at their peril." Id਍ഀ 11਍ഀ FINDINGS OF FACT, CONCLUSIONS OF LAW & JUDGMENT਍ഀ Eagle District Court਍ഀ West Ridge v. Smith et al਍ഀ 05CV328਍ഀ JUDGMENT਍ഀ WHEREFORE the Court hereby enters judgment in favor of Plaintiff and against਍ഀ all Defendants and quiets title in the form of a prescriptive easement over the Disputed਍ഀ Parcel (as described hereinabove) in favor of Plaintiff, and against the respective਍ഀ Defendants. Each side shall pay its attorneys' fees and costs.਍ഀ DATED this 315` day of May, 2007.਍ഀ BY E COl1rcr:਍ഀ lam.਍ഀ W. GWA0M਍ഀ trks COYn j"w਍ഀ 12਍ഀ 1~ .਍ഀ West Ridge v. Quinn, D.਍ഀ COLORADO COURT OF APPEALS਍ഀ Court of Appeals No.: 07CA 1907਍ഀ Eagle County District Court No. OSCV328਍ഀ Honorable Frederick W. Gannett, Judge਍ഀ West Ridge Condominium Investors, LLC,਍ഀ Plaintiff-Appellee,਍ഀ V.਍ഀ Daniel M. Quinn, Patrice Halloran, Jeffrey Karl Smith, Roger Egli, Affiliated਍ഀ Financial Group, Inc., Mortgage Electronic Registration Systems, Inc., Maverick਍ഀ Lending Network, and Alpine Bank,਍ഀ Defendants-Appellants.਍ഀ JUDGMENT AND ORDER AFFIRMED਍ഀ Division II਍ഀ Opinion by: JUDGE TAUBMAN਍ഀ Carparelli and Connelly, JJ., concur਍ഀ NOT PUBLISHED PURSUANT TO C.A.R. 35(f)਍ഀ Announced: October 30, 2008਍ഀ Nancy Adam, Vail, Colorado, for Plaintiff-Appellee਍ഀ Bailey & Peterson, P.C., James S. Bailey, Randall M. Livingston, Denver,਍ഀ Colorado, for Defendants-Appellants਍ഀ Defendants, Daniel M. Quinn, Patrice Halloran, Jeffrey Karl਍ഀ Smith, Roger Egli, Affiliated Financial Group, Inc., Mortgage਍ഀ Electronic Registration Systems, Inc., Maverick Lending Network,਍ഀ and Alpine Bank, appeal the trial court's judgment granting਍ഀ plaintiff, West Ridge Condominium Investors, LLC, a prescriptive਍ഀ easement and the trial court's order awarding West Ridge's bill of਍ഀ costs. We affirm.਍ഀ I. Background਍ഀ In June 2005, West Ridge brought an action to quiet title to a਍ഀ portion of land adjacent to its own parcel, claiming adverse਍ഀ possession, or alternatively, a prescriptive easement for parking and਍ഀ access. The disputed parcel was owned in part by Smith and Egli਍ഀ (Lot 1) and Quinn and Halloran (Lot 4). The corporate defendants਍ഀ claim security interests in the property. Both Lot 1 and Lot 4 abut਍ഀ West Ridge's parcel to the north.਍ഀ Smith and Egli counterclaimed for trespass, seeking damages਍ഀ and an injunction. The trial court declared that West Ridge was਍ഀ entitled to a prescriptive easement over the disputed parcel and਍ഀ dismissed defendants' counterclaim.਍ഀ 1਍ഀ The disputed use began in 1972, when Joel Fritz and his਍ഀ partners constructed the four-unit West Ridge condominium਍ഀ building located at 2992 Bellflower Drive in Vail., Colorado. They਍ഀ also constructed a paved driveway within the disputed parcel for਍ഀ parking and access to the condominiums.਍ഀ After construction in 1972, the four condominium units were਍ഀ conveyed to separate purchasers. In 1989 and 1990, Warren and਍ഀ Laurie Miller acquired common ownership of all four units. In਍ഀ 1994, the Millers conveyed the combined units to Nancy S. Adam.਍ഀ In 1998, Adam conveyed the property to West Ridge. Adam also਍ഀ owns a majority interest in West Ridge. The units are now leased as਍ഀ apartments.਍ഀ The land immediately to the north of West Ridge was originally਍ഀ part of one parcel, owned by Juanita Pedotto (Pedotto property). In਍ഀ 1972, Pedotto had legal title to the disputed parcel. Pedotto's਍ഀ property was subdivided and developed into Innsbruck Meadows,਍ഀ beginning in 1994. The disputed parcel now lies in Lots 1 and 4 of਍ഀ that subdivision.਍ഀ Another condominium building exists on the parcel of land਍ഀ 2਍ഀ immediately to the east of West Ridge. That land was developed in਍ഀ 1976 and is currently owned by the Ottley family (Ottley property).਍ഀ Some evidence was presented at trial that the Ottley property has਍ഀ an access easement over the northern edge of West Ridge's਍ഀ property, including the disputed parcel. That issue was not਍ഀ litigated in this case, and ongoing litigation appears to be pending਍ഀ to resolve Ottley's interests in the disputed parcel.਍ഀ Following a bench trial, the trial court found that the਍ഀ "[t]enants, guests, and owners of the West Ridge Condominiums਍ഀ used the disputed parcel as either access and/or parking from 1972਍ഀ through 1993 with no apparent opposition from Pedotto."਍ഀ The trial court concluded that West Ridge established a long-਍ഀ term intermittent use of the disputed parcel by West Ridge and its਍ഀ predecessors that was adverse, open, notorious, and continuous for਍ഀ the requisite eighteen-year period. The trial court based its findings਍ഀ of long-term intermittent use on testimony showing historical use of਍ഀ the disputed parcel for both access and parking by West Ridge and਍ഀ its predecessors from 1972 through 2004. Further, the trial court਍ഀ found that the West Ridge developers paved a driveway on the਍ഀ 3਍ഀ disputed parcel in 1972, which was subsequently maintained by਍ഀ West Ridge.਍ഀ The trial court dismissed defendants' counterclaims for਍ഀ trespass. It reasoned that defendants were estopped from asserting਍ഀ trespass because they had notice or knowledge of the adverse਍ഀ possession claim when they took ownership of their lots.਍ഀ In its May 31, 2007 judgment, the trial court concluded਍ഀ "[e]ach side shall pay its attorneys' fees and costs." However, it਍ഀ amended this portion of the judgment when it approved West਍ഀ Ridge's bill of costs for $8,707.57 on August 23, 2007. West Ridge਍ഀ had filed its bill of costs on July 9, 2007, more than fifteen days਍ഀ after the judgment issued.਍ഀ II. Adverse Use਍ഀ Defendants contend that the trial court erred in not applying਍ഀ the presumption of permissive use and that West Ridge did not਍ഀ show adverse use of the disputed parcel. We disagree.਍ഀ The trial court's declaration of a prescriptive easement will not਍ഀ be disturbed on appeal when it is based on competent evidence in਍ഀ the record. Gleason v. Phillips, 172 Colo. 66, 69, 470 P.2d 46, 48਍ഀ 4਍ഀ (1970). Upon review, we look at the evidence in the light most਍ഀ favorable to the prevailing party. Id. In contrast, the trial court's਍ഀ findings of fact "cannot stand if the record contains no evidence to਍ഀ support them." Wright v. Horse Creek Ranches, 697 P.2d 384, 390਍ഀ (Colo. 1985) (citing Gebhardt v. Gebhardt, 198 Colo. 28, 595 P.2d਍ഀ 1048 (1979)).਍ഀ A party claiming a prescriptive easement must prove by a਍ഀ preponderance of the evidence that use of the easement was਍ഀ continuous, open, and adverse for the statutory period of eighteen਍ഀ years. Proper v. Greager, 827 P.2d 591, 595 (Colo. App. 1992)਍ഀ (citing Gerner v. Sullivan, 768 P.2d 701 (Colo. 1989)); see also § 13-਍ഀ 25-1271 C.R.S. 2008. Generally, use of another's land for ingress਍ഀ and egress gives rise to a presumption of adverse use. See Gleason,਍ഀ 172 Colo. at 69, 470 P.2d at 48. However, if the land at issue is਍ഀ vacant, unenclosed, or unoccupied, a presumption of permissive਍ഀ use applies instead of the presumption of adverse use. Durbin v.਍ഀ Bonanza Corp., 716 P.2d 1124, 1129 (Colo. App. 1986).਍ഀ If the presumption of permissive use applies, a claimant may਍ഀ rebut the presumption with sufficient proof of adverse use. Lobato਍ഀ 5਍ഀ v. Taylor, 13 P.3d 821, 835 (Colo. App. 2000), rev'd on other਍ഀ grounds, 71 P.3d 938 (Colo. 2002). The burden is on the claimant਍ഀ to establish adverse use. A Permissive use becomes adverse when਍ഀ a claimant disavows the permissive use and notifies the title owner਍ഀ of adverse intent. Lovejoy v. School Dist. No. 46, 129 Colo. 306,਍ഀ 311, 269 P.2d 1067, 1069-70 (1954). The determination of whether਍ഀ possession is adverse is a question of fact that will not be਍ഀ overturned on review unless the determination is clearly erroneous.਍ഀ Smith v. Hayden, 772 P.2d 47, 55-56 (Colo. 1989).਍ഀ Here, the trial court acknowledged but did not apply the਍ഀ presumption of permissive use. Defendants contend the਍ഀ presumption of permissive use applies because Pedotto's land was਍ഀ vacant, unenclosed, and unoccupied prior to 1972. However, even਍ഀ if we were to assume that presumption applies here, we conclude਍ഀ that West Ridge sufficiently rebutted this presumption with proof of਍ഀ adverse use.਍ഀ The trial court concluded that West Ridge and its predecessors਍ഀ used the disputed parcel continuously from 1972 through 2004 for਍ഀ access and parking, and that such historical use "was adverse and਍ഀ 6਍ഀ hostile to the record owner, without permission or compensation."਍ഀ This conclusion is supported by evidence present at trial.਍ഀ We look at the evidence in light most favorable to West Ridge.਍ഀ Pedotto's permissive use became adverse when (a) West Ridge and਍ഀ its predecessors unequivocally disavowed the permissive use, and਍ഀ (b) West Ridge and its predecessors notified Pedotto of their adverse਍ഀ intent. The determination of whether West Ridge's use was adverse਍ഀ is a question of fact. The trial court's factual findings are not਍ഀ clearly erroneous because they are based on the testimony and਍ഀ other evidence offered at trial.਍ഀ First, West Ridge and its predecessors disavowed the਍ഀ permissive use. The record supports the trial court finding that in਍ഀ 1972, when the West Ridge building was completed, the developers਍ഀ "installed a paved driveway within the dispute parcel." This finding਍ഀ was based on evidence in the record.਍ഀ Adam, who purchased the West Ridge Condominiums in 1994,਍ഀ testified that Fritz, and other developers, had built and paved the਍ഀ driveway in 1972, which encroached into the disputed parcel on਍ഀ defendants' property. West Ridge also introduced surveys and਍ഀ photographs at trial to evidence the existence of the driveway.਍ഀ Additionally, William Thomas Wezwick and Erwin Bachrach,਍ഀ who each owned a West Ridge condominium, testified at trial.਍ഀ Bachrach owned one unit in the early 1970s; his exact dates of਍ഀ ownership are unclear. Wezwick owned one of the units from 1978਍ഀ until 1990. Bachrach recalled the parking lot was paved.਍ഀ Bachrach and Wezwick testified that the West Ridge residents਍ഀ parked along the driveway near the condominiums, and that the਍ഀ parked cars encroached onto the disputed parcel. Bachrach stated਍ഀ the parking lot was in the same location during his ownership and਍ഀ that "everybody living in the West Ridge Condominium used the਍ഀ parking area," apparently referring to portions of the disputed਍ഀ parcel. Similarly, Wezwick stated that each condominium unit had਍ഀ two assigned parking spaces in front of the building, and that਍ഀ additional parking would overflow "into the north of the property,"਍ഀ similarly suggesting that West Ridge's predecessors parked in the਍ഀ disputed parcel.਍ഀ Wezwick also explained that the residents of West Ridge,਍ഀ collectively, paid for plowing and maintenance to control the mud਍ഀ s਍ഀ on the driveway. Adam reiterated that the driveway was used for਍ഀ parking and access historically for thirty years, and that West Ridge਍ഀ and its predecessors had paid for snow removal and other਍ഀ maintenance of the driveway.਍ഀ West Ridge and its predecessors' creation, use, and਍ഀ maintenance of the disputed parcel show a disavowal of the਍ഀ permissive use.਍ഀ Second, Pedotto had notice of the adverse intent of West Ridge਍ഀ and its predecessors to use the disputed parcel. Gregory Amsden,਍ഀ who purchased land from Pedotto for development in the 1990s,਍ഀ testified that he had been familiar with the Pedotto property since਍ഀ 1979. He said that Pedotto attempted to prevent or interrupt West਍ഀ Ridge's use of the parcel "over the history of her ownership."਍ഀ Although he was not able to give specific dates or instances, this਍ഀ evidence showed that Pedotto was aware of others' use of the਍ഀ disputed parcel.਍ഀ West Ridge's subsequent and continuous use, combined with਍ഀ Pedotto's knowledge of West Ridge's use of the disputed parcel,਍ഀ could support a finding that Pedotto had notice of West Ridge's਍ഀ 9਍ഀ adverse intent to use the disputed parcel.਍ഀ Further, in the 1990s, Pedotto subdivided the land north of਍ഀ the West Ridge condominiums. She constructed a residence for਍ഀ herself on the subdivided lot immediately north of the਍ഀ condominiums and planned to landscape her lot. At the time,਍ഀ Adam's attorney contacted Pedotto about West Ridge's claim over਍ഀ the disputed parcel. Thereafter, Pedotto did not landscape to the਍ഀ legal boundary. Instead, she landscaped to the end of a berm and਍ഀ planted aspen trees to coincide with the boundary line of the਍ഀ disputed parcel.਍ഀ In addition, when Pedotto sold her lot to defendants Smith and਍ഀ Egli, she explicitly disclosed the adverse possession claim. At trial,਍ഀ Smith testified that he and Egli signed an agreement with Pedotto਍ഀ that acknowledged the West Ridge driveway crossed over the lot.਍ഀ Had the use been permissive, Pedotto could have withdrawn਍ഀ permission at any time. However, this evidence shows that West਍ഀ Ridge's use of the disputed parcel was adverse and that Pedotto had਍ഀ notice of West Ridge's adverse intent.਍ഀ Accordingly, even if the presumption of permissive use were to਍ഀ 10਍ഀ apply here, it was overcome by the trial court's finding of adverse਍ഀ and hostile use beginning in 1972 when West Ridge's predecessor਍ഀ paved the driveway in the disputed parcel.਍ഀ III. Extent of the Prescriptive Easement਍ഀ Defendants contend that the trial court erred in not describing਍ഀ the allowed uses of the prescriptive easement. Again, we disagree.਍ഀ The extent of a prescriptive easement "is fixed by the use਍ഀ through which it was created." Wright v. Horse Creek Ranches, 697਍ഀ P.2d at 388 (citing Restatement of Property § 477 (1944)). However,਍ഀ "the use under which a prescriptive interest arises determines [only]਍ഀ the general outlines rather than the minute details of the interest."਍ഀ Clinger v. Hartshorn, 89 P.3d 462, 467 (Colo. App. 2003) (quoting਍ഀ Restatement of Property § 477 cmt. b).਍ഀ A trial court must be able to describe a prescriptive easement਍ഀ with particularity in its decree. Weisiger v. Harbour, 62 P.3d 1069,਍ഀ 1072 (Colo. App. 2002).਍ഀ The trial court's judgment granted "quiet title in the form of a਍ഀ prescriptive easement over the Disputed Parcel (as described਍ഀ hereinabove) in favor of Plaintiff, and against the respective਍ഀ 11਍ഀ Defendants."਍ഀ After precisely describing the contours of the prescriptive਍ഀ easement, the trial court found that West Ridge had historically਍ഀ used the disputed parcel for access and parking.਍ഀ Moreover, the evidence presented by West Ridge, described਍ഀ above, shows that the disputed parcel was used for both access and਍ഀ parking. Testimony and other evidence showed that condominium਍ഀ owners had used the driveway for access and parking for the਍ഀ statutory period, and longer.਍ഀ Accordingly, we conclude that the trial court stated with਍ഀ sufficient particularity the uses of the prescriptive easement.਍ഀ IV. Tail End of Prescriptive Easement਍ഀ Defendants contend that the trial court erred in including the਍ഀ eastern tail of the disputed parcel in its declaration of the਍ഀ prescriptive easement. We find no error.਍ഀ The standard for measuring the width of an easement is based਍ഀ on the historic use. Clinger, 89 P.3d at 469.਍ഀ Defendants contend that the trial court did not adequately਍ഀ describe the prescriptive easement. Specifically, they argue that਍ഀ 12਍ഀ West Ridge did not present sufficient evidence that it had adversely਍ഀ used the entire disputed parcel.਍ഀ Photographic and survey evidence, as well as testimony of਍ഀ Adam and Wezwick, supported the trial court's conclusion that the਍ഀ prescriptive easement should include the eastern tail. This਍ഀ evidence established that the West Ridge residents had historically਍ഀ parked, not only on the lot north of the condominiums, but also on਍ഀ the lot to the east. Even defendants, in their proposed findings of਍ഀ fact, agreed that there was some evidence of parking on the tail.਍ഀ Therefore, we find no error in the trial court's declaration of a਍ഀ prescriptive easement across the entire disputed parcel.਍ഀ V. Defendants' Trespass Counterclaim਍ഀ Defendants assert that they should be able to pursue a਍ഀ trespass claim against West Ridge if we hold that West Ridge has਍ഀ not established a prescriptive easement over the disputed parcel.਍ഀ Because we affirm the trial court's declaration of West Ridge's਍ഀ prescriptive easement over the disputed parcel, we reject਍ഀ defendants' contention that the trespass counterclaim should be਍ഀ reinstated.਍ഀ 13਍ഀ VI. Bill of Costs਍ഀ Defendants contend that the trial court lacked jurisdiction to਍ഀ grant West Ridge's bill of costs because it was untimely. We਍ഀ disagree.਍ഀ We review a trial court's award of costs for abuse of discretion.਍ഀ Parry v. Kuhlmann, 169 P.3d 188, 190 (Colo. App. 2007). We will਍ഀ not disturb an award of costs unless it is manifestly arbitrary,਍ഀ unreasonable, or unfair. Id. C.R.C.P. 54(d) states that "costs shall਍ഀ be allowed to the prevailing party." (Emphasis added.) "Unless਍ഀ otherwise precluded by statute, the award of costs to a prevailing਍ഀ party is mandatory." Hall v. Frankel, 190 P.3d 852, 866 (Colo. App.਍ഀ 2008).਍ഀ A party claiming costs shall file a bill of costs within fifteen਍ഀ days of the entry of judgment, or within such greater time as the਍ഀ court may allow. C.R.C.P. 121 § 1-22(1). Further, a party may਍ഀ move for post-trial relief, such as requesting an amended judgment,਍ഀ within fifteen days of entry of the judgment, or such greater time as਍ഀ the court may allow. C.R.C.P. 59(a).਍ഀ Both C.R.C.P. 59(a) and 121 § 1-22(1) provide that a request਍ഀ 14਍ഀ may be filed within "such greater time as the court may allow."਍ഀ Thus, a party's failure to obtain an extension of time does not਍ഀ preclude the trial court from considering a request made beyond the਍ഀ fifteen days. Phillips v. Watkins, 166 P.3d 197, 198 (Colo. App.਍ഀ 2007) (citing In re Marriage of Wright, 841 P.2d 358, 361 (Colo. App.਍ഀ 1992); Koontz v. Rosener, 787 P.2d 192, 199 (Colo. App. 1989)).਍ഀ Defendants argue that the trial court lost jurisdiction over the਍ഀ case when West Ridge did not file the motion within fifteen days, or਍ഀ within an extension of time granted by the trial court. Defendants਍ഀ rely on Titan Indemnity Co. v. Travelers Property Casualty Co., 181਍ഀ P.3d 303, 308 (Colo. App. 2007). There, the trial court granted a਍ഀ motion to dismiss on November 22, 2005. In response, the other਍ഀ party filed a motion for leave to file a motion for reconsideration on਍ഀ December 29, 2005, which the trial court denied. The trial court's਍ഀ denial of that motion was affirmed because the motion for਍ഀ reconsideration was untimely filed.਍ഀ The facts of the present case are different. Here, we review the਍ഀ trial court's award of a bill of costs filed beyond the fifteen-day਍ഀ deadline, not a motion to reconsider. Regardless, both C.R.C.P.਍ഀ 15਍ഀ 59(a) and 121 § 1-22(l) allow the trial court to consider a request਍ഀ filed beyond fifteen days. We agree with the Phillips division that਍ഀ the trial court had discretion to consider the bill of costs filed after਍ഀ the fifteen-day deadline.਍ഀ Because the trial court approved West Ridge's bill of costs, it਍ഀ excused West Ridge's late filing without explicitly granting an਍ഀ extension of time. Thus, the trial court had jurisdiction over the਍ഀ matter.਍ഀ Additionally, West Ridge prevailed at trial; therefore, West਍ഀ Ridge was entitled to costs. 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O਍ഀ cd਍ഀ N Q, Q਍ഀ b s਍ഀ ~ N਍ഀ Q" Q਍ഀ Q ~਍ഀ O yore਍ഀ O਍ഀ cd਍ഀ 06/11/2009) Warren Campbell - Re: West Ridge Page 1਍ഀ From: Dominic Mauriello <dominic@mpgvail.com>਍ഀ To: Warren Campbell <WCampbell@vailgov.com>, George Ruther <GRuther@vailgov਍ഀ Date: 6/5/2009 10:26 AM਍ഀ Subject: Re: West Ridge਍ഀ Hi Warren:਍ഀ Thank you for getting back to me. I appreciate the Town's position on this਍ഀ and appreciate your trying to mediate a workable solution with the਍ഀ neighbors. At this juncture, as we don't believe that Smith or Egli will਍ഀ sign the application without attaching conditions that are not appropriate਍ഀ or germane to the court order, unless the application gets signed by 3:00 pm਍ഀ today West Ridge will have to seek yet another court order compelling the਍ഀ neighbors to remove the improvements.਍ഀ I think we took this cooperative approach as far as we could and do਍ഀ appreciate your efforts towards obtaining consensus.਍ഀ Thanks.਍ഀ On 6/5/09 8:07 AM, "Warren Campbell" <WCampbell@vailgov.com> wrote:਍ഀ > Dominic,਍ഀ > Matt, George, and myself met yesterday and have agreed that the Town਍ഀ > will continue to require the sign-off of Mr. Smith and Mr. Egli on the਍ഀ > application to make changes to their property. As a part of this਍ഀ > decision I went into the file for Lot 1, Innsbruck Meadows and confirmed਍ഀ > that a DRB application was granted for the landscaping improvements thus਍ഀ > we feel a DRIB applications is necessary for the removal of the਍ഀ > improvements. Furthermore, at this juncture the Town feels that we਍ഀ > cannot recognize the court documents identifying the access easement as਍ഀ > a requirement for Mr. Smith and Mr. Egli to sign the application.਍ഀ > If you have any questiosn please do not hesitate to contact us.਍ഀ > Regards,਍ഀ > Warren Campbell਍ഀ Dominic Mauriello <dominic@mpgvail.com> 6/3/2009 3:44 PM਍ഀ > Hi Matt:਍ഀ > As it appears that we may never get the neighbors to sign the਍ഀ > application to਍ഀ > restore the access easement as required by the court order. They will਍ഀ > continue to try to use this leverage as a means of trying to force਍ഀ > West਍ഀ > Ridge into making other improvements that are not required by the਍ഀ > court਍ഀ > order.਍ഀ > West Ridge is fine with either of the following approaches:਍ഀ > 1. Town issues the approval with the Court Order acting as the owner's਍ഀ (06/11/2009) Warren Campbell - Re: West Ridge Page 2 j਍ഀ > signature;਍ഀ > 2. The Town allowing the work to be completed as 3maintenance 2 not਍ഀ > requiring਍ഀ > as permit. This option is realistically what we are doing; restoring਍ഀ > the਍ഀ > easement and removing dirt that obstructs the access. West Ridge is਍ഀ > not਍ഀ > concerned about being arrested for trespass due to the court order.਍ഀ > We would like to have this resolved by the end of the week and West਍ഀ > Ridge਍ഀ > has gone out of its way to develop a plan sensitive to the neighbors.਍ഀ > Thank you for your consideration.਍ഀ > Dominic F. Mauriello, AICP਍ഀ > Mauriello Planning Group, LLC਍ഀ > PO Box 1127਍ഀ > 5601A Wildridge Road਍ഀ > Avon, Colorado 81620਍ഀ > 970-376-3318 cell਍ഀ > www.mpgvail.com਍ഀ Dominic F. Mauriello, AICP਍ഀ Mauriello Planning Group, LLC਍ഀ PO Box 1127਍ഀ 5601A Wildridge Road਍ഀ Avon, Colorado 81620਍ഀ 970-376-3318 cell਍ഀ www.mpgvail.com਍ഀ West Ridge਍ഀ Warren Campbell - West Ridge਍ഀ From:਍ഀ Dominic Mauriello਍ഀ To:਍ഀ Matt Mire, Warren Campbell, George Ruther਍ഀ Date:਍ഀ 6/3/2009 3:45 PM਍ഀ Subject:਍ഀ West Ridge਍ഀ Hi Matt:਍ഀ Page 1 of 1਍ഀ As it appears that we may never get the neighbors to sign the application to restore the access਍ഀ easement as required by the court order. They will continue to try to use this leverage as a means of਍ഀ trying to force West Ridge into making other improvements that are not required by the court order.਍ഀ West Ridge is fine with either of the following approaches:਍ഀ 1. Town issues the approval with the Court Order acting as the owner's signature;਍ഀ 2. The Town allowing the work to be completed as "maintenance" not requiring as permit. This਍ഀ option is realistically what we are doing; restoring the easement and removing dirt that obstructs਍ഀ the access. West Ridge is not concerned about being arrested for trespass due to the court਍ഀ order.਍ഀ We would like to have this resolved by the end of the week and West Ridge has gone out of its way to਍ഀ develop a plan sensitive to the neighbors.਍ഀ Thank you for your consideration.਍ഀ Dominic F. Mauriello, AICP਍ഀ Mauriello Planning Group, LLC਍ഀ PO Box 1127਍ഀ 5601A Wildridge Road਍ഀ Avon, Colorado 81620਍ഀ 970-376-3318 cell਍ഀ www.mpgvail.com਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A269... 06/11/2009਍ഀ Restoration of Easement - Revised Landscape Plan਍ഀ Page 1 of 2਍ഀ Warren Campbell - FW: Restoration of Easement - Revised Landscape Plan਍ഀ From:਍ഀ "Jeffrey Karl Smith"਍ഀ To:਍ഀ "'Warren Campbell"'਍ഀ Date:਍ഀ 6/3/2009 9:06 AM਍ഀ Subject: FW: Restoration of Easement - Revised Landscape Plan਍ഀ Attachments:਍ഀ Warren,਍ഀ Left you a message yesterday and still have questions on this process.਍ഀ It appears that Dominic & Nancy, seem to think that you are the one approving this process.਍ഀ Doesn't this need to go through DRB and an approval committee process?਍ഀ We believe that this map should have all the parking places drawn along with the placement of trash cans.਍ഀ We still have not seen the survey showing the easement of the larger portion of land to the NW staking a large਍ഀ portion of the lawn.਍ഀ Please advise.਍ഀ Thanks,਍ഀ Jeff Smith਍ഀ Roger Egli਍ഀ From: Dominic Mauriello [mailto:dominic@mpgvail.com]਍ഀ Sent: Monday, June 01, 2009 1:35 PM਍ഀ To: Jeffrey Karl Smith਍ഀ Cc: Warren Campbell਍ഀ Subject: Restoration of Easement - Revised Landscape Plan਍ഀ Hi Jeff:਍ഀ Attached is a revised landscape plan for the restoration of the prescriptive easement pursuant to the਍ഀ court order. The changes reflect our discussions on-site two weeks ago with Jackson including showing਍ഀ a split rail fence should you choose to install it. We are not proposing to increase the easement in਍ഀ anyway beyond what the court approved nor do we have any intention of doing so.਍ഀ We would like to get agreement on this application so we can get TOV approval from Warren this week਍ഀ and begin the improvements next week.਍ഀ I greatly appreciate your help with this and hope we can move forward on this.਍ഀ An email to Warren with your concurrence with the application would likely suffice for Warren's਍ഀ purposes.਍ഀ Thanks,਍ഀ Dominic F. Mauriello, AICP਍ഀ file://CADocuments and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A263... 06/11/2009਍ഀ Restoration of Easement - Revised Landscape Plan਍ഀ Mauriello Planning Group, LLC਍ഀ PO Box 1127਍ഀ 5601A Wildridge Road਍ഀ Avon, Colorado 81620਍ഀ dominic@mpgvail.com਍ഀ 970-376-3318 cell਍ഀ Page 2 of 2਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A263... 06/11/2009਍ഀ Page 1 of 1਍ഀ Warren Campbell - West Ridge Minor Exterior Alteration Application਍ഀ From: "Randall M. Livingston"਍ഀ To: 'Jeffrey Karl Smith', "'NSAVAIL@aol.com"' , 'Warren Campbell'਍ഀ Date: 6/11/2009 11:21 AM਍ഀ Subject: West Ridge Minor Exterior Alteration Application਍ഀ Attachments:਍ഀ Attached is an Application for Design Review, Minor Exterior Alteration for the West Ridge excavation and਍ഀ landscaping work. It has been modified from the Town's form to address the unique characteristics of the਍ഀ application.਍ഀ The parties will appreciate Warren reporting whether the Town will accept the application in this form.਍ഀ The other recipients should advise whether they have any suggestions or concerns.਍ഀ Randall M. Livingston਍ഀ Bailey & Peterson, P.C.਍ഀ 1660 Lincoln Street, Suite 3175਍ഀ Denver, Colorado 80264਍ഀ Phone: (303) 837-1660 Fax: (303) 837-0097਍ഀ THIS MESSAGE AND THE ACCOMPANYING DOCUMENTS ARE INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH਍ഀ THEY ARE ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE਍ഀ UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE AND THE ACCOMPANYING DOCUMENTS IS NOT THE INTENDED਍ഀ RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY਍ഀ PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, AND਍ഀ RETURN THE ORIGINAL MESSAGE AND THE ACCOMPANYING DOCUMENTS TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL਍ഀ SERVICE. THANK YOU.਍ഀ file://CADocuments and Settings\AdministratorTocal Settings\Temp\XPgrpwise\4A30E8... 06/22/2009਍ഀ Page 1 of 1਍ഀ Warren Campbell - West Ridge Condominium਍ഀ From: "Randall M. Livingston"਍ഀ To: "'WCampbell@vailgov.com"'਍ഀ Date: 6/11/2009 10:15 AM਍ഀ Subject: West Ridge Condominium਍ഀ Warren:਍ഀ I am receiving information from West Ridge that appears to be different from what we discussed yesterday਍ഀ regarding the West Ridge Application. Could you send me a copy of the drawing that you were speaking from਍ഀ during out conversation yesterday.਍ഀ I also need to speak with you regarding the application form.਍ഀ Randall M. Livingston਍ഀ Bailey & Peterson, P.C.਍ഀ 1660 Lincoln Street, Suite 3175਍ഀ Denver, Colorado 80264਍ഀ Phone: (303) 837-1660 Fax: (303) 837-0097਍ഀ THIS MESSAGE AND THE ACCOMPANYING DOCUMENTS ARE INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH਍ഀ THEY ARE ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE਍ഀ UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE AND THE ACCOMPANYING DOCUMENTS IS NOT THE INTENDED਍ഀ RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY਍ഀ PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, AND਍ഀ RETURN THE ORIGINAL MESSAGE AND THE ACCOMPANYING DOCUMENTS TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL਍ഀ SERVICE. THANK YOU.਍ഀ file:M\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A30D... 06/22/2009਍ഀ FW: Restoration of Easement਍ഀ Warren Campbell - FW: Restoration of Easement਍ഀ From:਍ഀ "Jeffrey Karl Smith"਍ഀ To:਍ഀ "'Warren Campbell"'਍ഀ Date:਍ഀ 6/8/2009 4:48 PM਍ഀ Subject:਍ഀ FW: Restoration of Easement਍ഀ Attachments:਍ഀ Page 1 of 2਍ഀ Warren,਍ഀ Per our attorney Nancy did not present all the information to E-County, to Gannett.਍ഀ I've been requesting add'I info from Dominic for many days now, with no response.਍ഀ Not sure if TOV is going to get brought into this whole thing more to defend our side for signature approval.਍ഀ Jeff Smith਍ഀ From: Dominic Mauriello [mailto:dominic@mpgvail.com]਍ഀ Sent: Monday, June 08, 2009 4:30 PM਍ഀ To: Jeffrey Karl Smith਍ഀ Subject: FW: Restoration of Easement਍ഀ FYI਍ഀ Dominic F. Mauriello, AICP਍ഀ Mauriello Planning Group, LLC਍ഀ PO Box 1127਍ഀ 5601A Wildridge Road਍ഀ Avon, Colorado 81620਍ഀ 970-376-3318 cell਍ഀ www.mpgvail.com਍ഀ Forwarded Message਍ഀ From: Nancy Adam <nsavail@aol.com>਍ഀ Date: Mon, 8 Jun 2009 15:10:20 EDT਍ഀ To: Dominic Mauriello <dominic@mpgvail.com>਍ഀ Subject: Restoration of Easement਍ഀ Dominic:਍ഀ Thank you for your efforts these past few months to try to facilitate a cooperative਍ഀ solution to obtain the signatures of Mr. Egli and Mr. Smith on the required permit਍ഀ for the Town of Vail to restore the Prescriptive Easement for access and parking.਍ഀ Their ongoing failure and refusal to sign the permit necessitated our filing a਍ഀ motion with the Court asking for a status conference on this matter. I just਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A2D4... 06/22/2009਍ഀ FW: Restoration of Easement Page 2 of 2਍ഀ received the Court's order granting the status conference and stating:਍ഀ The matter is to be set for a forthwith status conference with Karen਍ഀ Frederick, Division Clerk at (970) 328-8553 or karen.frederick 'udicialstate਍ഀ <mailto:karen.frederick@judicial.state> CO.US. Plaintiff's counsel shall prepare a draft਍ഀ Order for the Court to sign in lieu of Defendant's Quinn et al authorizing਍ഀ work within the defined easement (regardless of underlying ownership of਍ഀ the real property) in a form satisfactory to the Town of Vail counsel and਍ഀ shall circulate such draft Order to Defendant's counsel sufficiently prior to਍ഀ such forthwith status conference for all sides to be adequately versed in਍ഀ the proposed language. The Court may assess attorney fees against਍ഀ parties and their respective counsel for any failure to reasonably assess਍ഀ this legal issue and respond in a manner consistent with judgment and਍ഀ subsequent mandate form the Court of Appeals.਍ഀ /s/ Judge Fred W Gannett਍ഀ If Mr. Smith and Mr. Egli do not want to face the consequences of this matter਍ഀ going forward with the Court, they can go over to the Town of Vail and sign the਍ഀ requested permit. I will attach another copy in case they do not have it.਍ഀ Thank you again for your efforts,਍ഀ Nancy Adam਍ഀ Nancy Adam, Manager and General Counsel਍ഀ West Ridge Condominium Investors, LLC਍ഀ 765 Forest Road਍ഀ Vail, CO 81657਍ഀ NSAVail@aol.com਍ഀ 970-476-5383਍ഀ cell 970-390-4566਍ഀ Download the AOL Classifieds Toolbar <http://toolbar.aol.com/aolclassifieds/download.htmI?਍ഀ ncid=emlcntusdown00000004> for local deals at your fingertips.਍ഀ End of Forwarded Message਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A2D4... 06/22/2009਍ഀ Page 1 of 1਍ഀ Warren Campbell - FW: West Ridge Landscape Design਍ഀ From:਍ഀ "Jeffrey Karl Smith"਍ഀ To:਍ഀ "'Warren Campbell"'਍ഀ Date:਍ഀ 6/8/2009 3:10 PM਍ഀ Subject: FW: West Ridge Landscape Design਍ഀ CC: ,਍ഀ Attachments: ,਍ഀ Warren,਍ഀ From prior e-mail to Dominic and CC to you, we are asking for further detailed plans but have not seen this਍ഀ material yet.਍ഀ We are asking for the parking (14 spaces drawn on West Ridge map, from 5/21 e-mail) to be outlined on the DRB਍ഀ Permit map along with placement of the trash cans.਍ഀ Additionally we have not yet seen a survey that designates or identified the staked land in the NW corner on the਍ഀ lawn area.਍ഀ Once we see all this on paper to scale, we are just not sure how your staff or TOV could approve all 14 parking਍ഀ spaces, snow storage and trash can placement. We are not sure there is room for all this.਍ഀ I will forward this info once sent from Dominic for your review.਍ഀ Jeff Smith਍ഀ Roger Egli਍ഀ From: Linda J. Simmons [mailto:simmons@b-p-law.com]਍ഀ Sent: Monday, June 08, 2009 10:00 AM਍ഀ To: Jeffrey Karl Smith (Jeff@homeoutfittersvail.com)਍ഀ Cc: Randall M. Livingston਍ഀ Subject: West Ridge Landscape Design਍ഀ Jeff,਍ഀ Attached please find Ms. Adam's motion for status conference regarding her landscaping plans and your਍ഀ approval of such.਍ഀ Lnda਍ഀ Linda J. Simmons਍ഀ Paralegal਍ഀ Bailey & Peterson, PC਍ഀ 1660 Lincoln Street, Suite 3175਍ഀ Denver, CO 80264਍ഀ tel: 303-837-1660; fax: 303-837-0097਍ഀ This message and the accompanying documents are intended only for the use of the individual or entity to which they are addressed਍ഀ and may contain information that is privileged or confidential and exempt from disclosure under applicable law. If the reader of this਍ഀ message and accompanying documents is not the intended recipient or employee or agent responsible for delivering this message to the਍ഀ intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited.਍ഀ If you have received this communication in error, please notify us immediately by telephone and return the original message and਍ഀ accompanying documents to us at the above address. Thank you.਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A2D2... 06/22/2009਍ഀ Page 1 of 3਍ഀ Warren Campbell - RE: Revised Proposed Order਍ഀ From: Matt Mire਍ഀ To: Livingston, Randall M.; 'NSAVAIL@aol.com'਍ഀ Date: 6/10/2009 1:15 PM਍ഀ Subject: RE: Revised Proposed Order਍ഀ CC: Campbell, Warren; Ruther, George; Smith', 'Jeffrey Karl਍ഀ Mr. Livingston,਍ഀ The Town has stated its position and I find it humorous that either party would suggest that the Town has਍ഀ inappropriately injected itself into your lawsuit. I can now better understand, however, why there has been no਍ഀ resolution of this issue to date.਍ഀ Your'request' is noted. Town staff has spent enough time on this issue short of processing an application,਍ഀ which we will do in good faith if a valid application is ever filed. Regards,਍ഀ J. Matthew Mire਍ഀ Town Attorney਍ഀ Town of Vail਍ഀ 75 S. Frontage Road਍ഀ Vail, Colorado 81657਍ഀ Ph. 970. 479-2107਍ഀ Fx. 970. 479-2157਍ഀ mmirQ@wailgov.com਍ഀ CONFIDENTIALITY NOTICE਍ഀ This electronic mail transmission and any accompanying documents contain information belonging to the sender਍ഀ which may be confidential and legally privileged. If you are not the intended recipient of this e-mail, you are਍ഀ hereby notified that any dissemination, distribution or copying of this e-mail, and any attachments thereto, is਍ഀ strictly prohibited. If you have received this e-mail in error, please notify me immediately by telephone or e-਍ഀ mail and destroy the original message without making a copy. Thank you.਍ഀ "Randall M. Livingston" <livingston@b-p-law.com> 6/10/2009 11:34 AM਍ഀ Matt:਍ഀ I do not know the full extent of your communications with Ms. Adam, although I understand that the Town of਍ഀ Vail's position is not to put itself in the middle of a lawsuit. Mr. Smith and Mr. Egli object to any implication by਍ഀ the Town of Vail, which is not a party to the proceeding in which the order is being proposed, that makes a਍ഀ series of findings for which there is no claim pending, no appropriate motion filed, no hearing held, no਍ഀ evidence taken, and for which the court has no jurisdiction.਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A2FB... 06/22/2009਍ഀ Page 2 of 3਍ഀ A suggestion by the Town of Vail that it consents or agrees with Ms. Adam's proposed order creates an਍ഀ improper and unfair suggestion to the detriment of Mr. Smith and Mr. Egli. It is my request that the Town of਍ഀ Vail not become a party to this matter.਍ഀ Randy Livingston਍ഀ From: NSAVAIL@aol.com [mailto:NSAVAIL@aol.com]਍ഀ Sent: Wednesday, June 10, 2009 11:12 AM਍ഀ To: mmire@vailgov.com਍ഀ Cc: Randall M. Livingston਍ഀ Subject: Revised Proposed Order਍ഀ Mr. Mire:਍ഀ In response to your email, West Ridge understands that the purpose of the Proposed Order is to resolve਍ഀ the issue of the signature of the titleholder of the real property burdened by the Prescriptive Easement. The਍ഀ Proposed Order does not effect or replace the Town of Vail permit approval process.਍ഀ At your suggestion, I have revised the Proposed Order to have the Town of Vail rely on the Order and਍ഀ eliminate the need to have the Clerk of the Court co-sign the application. These changes are reflected as਍ഀ follows:਍ഀ The 3rd paragraph on Page 2 has been changed to read:਍ഀ THE COURT FURTHER FINDS that the Attorney for the Town of Vail has reviewed this Order and਍ഀ confirmed that if the Defendants continue to fail or refuse to sign the Permit Application, the Town of Vail will਍ഀ accept an order signed by the Court compelling the Defendants to sign the Permit Application;਍ഀ The 8th paragraph on Page 2 has been changed to read:਍ഀ THE COURT FURTHER ORDERS that in the event the Defendants fail or refuse to co-sign the Permit਍ഀ Application and submit the same to the Town of Vail for approval within two (2) days of the date of this Order,਍ഀ then the Town of Vail is authorized and directed to rely on this Order as the signature of the Defendants to the਍ഀ Permit Application without further motion;਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A2FB... 06/22/2009਍ഀ Page 3 of 3਍ഀ Please confirm whether these changes are acceptable to you.਍ഀ Thank you,਍ഀ Nancy Adam, Manager and General Counsel਍ഀ West Ridge Condominium Investors, LLC਍ഀ 765 Forest Road਍ഀ Vail, CO 81657਍ഀ NSAVail@aol.com਍ഀ 970-476-5383਍ഀ cell 970-390-4566਍ഀ Download the AOL Classifieds Toolbar for local deals at your fingertips.਍ഀ file://CADocuments and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A2FB... 06/22/2009਍ഀ Page 1 of 2਍ഀ Warren Campbell - Re: Revised Proposed Order਍ഀ From:਍ഀ Matt Mire਍ഀ To:਍ഀ NSAVAIL@aol.com਍ഀ Date:਍ഀ 6/10/2009 1:03 PM਍ഀ Subject:਍ഀ Re: Revised Proposed Order਍ഀ CC: Campbell, Warren; livingston@b-p-law.com; Ruther, George਍ഀ Ms. Adam,਍ഀ I am fine with either of your proposed orders, but the Town's position as stated in my previous email remains਍ഀ unchanged. In addition, I am beginning to question the relevance of my 'approval' of an Order under these਍ഀ circumstances. Regards,਍ഀ J. Matthew Mire਍ഀ Town Attorney਍ഀ Town of Vail਍ഀ 75 S. Frontage Road਍ഀ Vail, Colorado 81657਍ഀ Ph. 970. 479-2107਍ഀ Fx. 970. 479-2157਍ഀ mmire_@vaill-ov.co_m਍ഀ CONFIDENTIALITY NOTICE਍ഀ This electronic mail transmission and any accompanying documents contain information belonging to the sender਍ഀ which may be confidential and legally privileged. If you are not the intended recipient of this e-mail, you are਍ഀ hereby notified that any dissemination, distribution or copying of this e-mail, and any attachments thereto, is਍ഀ strictly prohibited. If you have received this e-mail in error, please notify me immediately by telephone or e-਍ഀ mail and destroy the original message without making a copy. Thank you.਍ഀ <NSAVAIL@aol.com> 6/10/2009 11:12 AM਍ഀ Mr. Mire:਍ഀ In response to your email, West Ridge understands that the purpose of਍ഀ the Proposed Order is to resolve the issue of the signature of the titleholder of਍ഀ the real property burdened by the Prescriptive Easement. The Proposed Order਍ഀ does not effect or replace the Town of Vail permit approval process.਍ഀ At your suggestion, I have revised the Proposed Order to have the Town਍ഀ of Vail rely on the Order and eliminate the need to have the Clerk of the Court਍ഀ co-sign the application. These changes are reflected as follows:਍ഀ The 3rd paragraph on Page 2 has been changed to read:਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A2FA... 06/22/2009਍ഀ Page 2 of 2਍ഀ THE COURT FURTHER FINDS that the Attorney for the Town of Vail has਍ഀ reviewed this Order and confirmed that if the Defendants continue to fail or਍ഀ refuse to sign the Permit Application, the Town of Vail will accept an order਍ഀ signed by the Court compelling the Defendants to sign the Permit Application;਍ഀ The 8th paragraph on Page 2 has been changed to read:਍ഀ THE COURT FURTHER ORDERS that in the event the Defendants fail or਍ഀ refuse to co-sign the Permit Application and submit the same to the Town of Vail਍ഀ for approval within two (2) days of the date of this Order, then the Town of Vail਍ഀ is authorized and directed to rely on this Order as the signature of the਍ഀ Defendants to the Permit Application without further motion;਍ഀ Please confirm whether these changes are acceptable to you.਍ഀ Thank you,਍ഀ oVanc# ofalam਍ഀ Nancy Adam, Manager and General Counsel਍ഀ West Ridge Condominium Investors, LLC਍ഀ 765 Forest Road਍ഀ Vail, CO 81657਍ഀ NSAVail@aol.com਍ഀ 970-476-5383਍ഀ cell 970-390-4566਍ഀ Download the AQL__Classifieds Toolbar for local deals at your fingertips.਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A2FA... 06/22/2009਍ഀ Page 1 of 1਍ഀ Warren Campbell - Signed Permit Application for Site Work਍ഀ From:਍ഀ To:਍ഀ Date: 6/15/2009 10:47 AM਍ഀ Subject: Signed Permit Application for Site Work਍ഀ CC:਍ഀ Attachments:਍ഀ Mr. Campbell:਍ഀ Attached please find a copy of the permit application signed by the property owners, Roger਍ഀ Egli and Jeff Smith, and signed by West Ridge Condominium Investors, LLC, as the holder਍ഀ of the Prescriptive Easement. In addition, attached please find a copy of the Landscape਍ഀ Design as modified from last month's site meeting and the agreement between the parties਍ഀ concerning the project.਍ഀ Please let me know when the permit is ready for pick up so we can commence this project.਍ഀ Thank you,਍ഀ dVimc# ofdam਍ഀ Nancy Adam, Manager and General Counsel਍ഀ West Ridge Condominium Investors, LLC਍ഀ 765 Forest Road਍ഀ Vail, CO 81657਍ഀ NSAVail@aol.com਍ഀ 970-476-5383਍ഀ cell 970-390-4566਍ഀ Download the AOL Classifieds Toolbar for local deals at your fingertips.਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A3626... 06/22/2009਍ഀ L (06/22/2009) Warren Campbell - RE: FW: Restoration of Easement Revised Landscape Plan Page 1਍ഀ From: "Jeffrey Karl Smith" <jeff@homeoutfittersvail.com>਍ഀ To: Warren Campbell"' <WCampbell@vailgov.com>਍ഀ Date: 6/4/2009 2:38 PM਍ഀ Subject: RE: FW: Restoration of Easement - Revised Landscape Plan਍ഀ Warren,਍ഀ Thanks for your reply. I've sent requests to Dominic, no response yet.਍ഀ Nancy seems to be writing his letters anyway.਍ഀ Is there a process or request for Bob Walsh to follow for West Ridge to਍ഀ place their trash cans away from the curb.਍ഀ Bob does not return my phone calls.਍ഀ Please advise.਍ഀ Thanks,਍ഀ Jeff Smith਍ഀ Roger Egli਍ഀ -----Original Message-----਍ഀ From: Warren Campbell [mailto:WCampbell@vailgov.com]਍ഀ Sent: Wednesday, June 03, 2009 12:33 PM਍ഀ To: Jeffrey Karl Smith਍ഀ Subject: Re: FW: Restoration of Easement - Revised Landscape Plan਍ഀ Jeff,਍ഀ got your message yesterday, but was in a meeting all morning. This is the਍ഀ type of application that Staff would administratively approve. I have਍ഀ eluded to Dominic that once everyone is in agreement I will likely staff਍ഀ approve the application. The Design Review Board will have minimal to no਍ഀ comments on an application of this scope.਍ഀ You can ask Dominic to show the parking and trash cans on the plan. You਍ഀ control the application and can ask for what you need prior to providing਍ഀ your signature. The stamped survey does show that portion of the Westridge਍ഀ Property that parallels your property. I do not have a digital copy readily਍ഀ available. Dominic provided it on site.਍ഀ hope this answers your questions.਍ഀ Warren਍ഀ "Jeffrey Karl Smith" <jeff@homeoutfittersvail.com> 6/3/2009 9:07 AM਍ഀ Warren,਍ഀ Left you a message yesterday and still have questions on this process.਍ഀ It appears that Dominic & Nancy, seem to think that you are the one਍ഀ approving this process.਍ഀ Doesn't this need to go through DRB and an approval committee process?਍ഀ We believe that this map should have all the parking places drawn along with਍ഀ the placement of trash cans.਍ഀ We still have not seen the survey showing the easement of the larger portion਍ഀ of land to the NW staking a large portion of the lawn.਍ഀ (06/22/2009) Warren Campbell - RE: FW: Restoration of Easement - Revised Landscape Plan Page 2਍ഀ Please advise.਍ഀ Thanks,਍ഀ Jeff Smith਍ഀ Roger Egli਍ഀ From: Dominic Mauriello [mailto:dominic@mpgvail.com]਍ഀ Sent: Monday, June 01, 2009 1:35 PM਍ഀ To: Jeffrey Karl Smith਍ഀ Cc: Warren Campbell਍ഀ Subject: Restoration of Easement - Revised Landscape Plan਍ഀ Hi Jeff:਍ഀ Attached is a revised landscape plan for the restoration of the prescriptive਍ഀ easement pursuant to the court order. The changes reflect our discussions਍ഀ on-site two weeks ago with Jackson including showing a split rail fence਍ഀ should you choose to install it. We are not proposing to increase the਍ഀ easement in anyway beyond what the court approved nor do we have any਍ഀ intention of doing so.਍ഀ We would like to get agreement on this application so we can get TOV਍ഀ approval from Warren this week and begin the improvements next week.਍ഀ I greatly appreciate your help with this and hope we can move forward on਍ഀ this.਍ഀ An email to Warren with your concurrence with the application would likely਍ഀ suffice for Warren's purposes.਍ഀ Thanks,਍ഀ Dominic F. Mauriello, AICP਍ഀ Mauriello Planning Group, LLC਍ഀ PO Box 1127਍ഀ 5601A Wild ridge Road਍ഀ Avon, Colorado 81620਍ഀ dominic@mpgvaii.com਍ഀ 970-376-3318 cell਍ഀ (06/22/2009) Warren Campbell - RE: FW: Restoration of Easement - Revised Landscape Plan Page 31਍ഀ Internal Virus Database is out-of-date.਍ഀ Checked by AVG.਍ഀ Version: 7.5.560 / Virus Database: 270.12.26/2116 - Release Date: 5/15/2009਍ഀ 6:16 AM਍ഀ Restoration of Easement - Revised Landscape Plan਍ഀ Page 1 of 2਍ഀ Warren Campbell - FW: Restoration of Easement - Revised Landscape Plan਍ഀ From:਍ഀ "Jeffrey Karl Smith"਍ഀ To:਍ഀ "'Warren Campbell"'਍ഀ Date:਍ഀ 6/3/2009 9:06 AM਍ഀ Subject: FW: Restoration of Easement - Revised Landscape Plan਍ഀ Attachments:਍ഀ Warren,਍ഀ Left you a message yesterday and still have questions on this process.਍ഀ It appears that Dominic & Nancy, seem to think that you are the one approving this process.਍ഀ Doesn't this need to go through DRB and an approval committee process?਍ഀ We believe that this map should have all the parking places drawn along with the placement of trash cans.਍ഀ We still have not seen the survey showing the easement of the larger portion of land to the NW staking a large਍ഀ portion of the lawn.਍ഀ Please advise.਍ഀ Thanks,਍ഀ Jeff Smith਍ഀ Roger Egli਍ഀ From: Dominic Mauriello [mailto:dominic@mpgvail.com]਍ഀ Sent: Monday, June 01, 2009 1:35 PM਍ഀ To: Jeffrey Karl Smith਍ഀ Cc: Warren Campbell਍ഀ Subject: Restoration of Easement - Revised Landscape Plan਍ഀ Hi Jeff:਍ഀ Attached is a revised landscape plan for the restoration of the prescriptive easement pursuant to the਍ഀ court order. The changes reflect our discussions on-site two weeks ago with Jackson including showing਍ഀ a split rail fence should you choose to install it. We are not proposing to increase the easement in਍ഀ anyway beyond what the court approved nor do we have any intention of doing so.਍ഀ We would like to get agreement on this application so we can get TOV approval from Warren this week਍ഀ and begin the improvements next week.਍ഀ I greatly appreciate your help with this and hope we can move forward on this.਍ഀ An email to Warren with your concurrence with the application would likely suffice for Warren's਍ഀ purposes.਍ഀ Thanks,਍ഀ Dominic F. Mauriello, AICP਍ഀ file://CADocuments and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A263... 06/22/2009਍ഀ Restoration of Easement - Revised Landscape Plan਍ഀ Mauriello Planning Group, LLC਍ഀ PO Box 1127਍ഀ 5601A Wildridge Road਍ഀ Avon, Colorado 81620਍ഀ dominic@mpgvail.com਍ഀ 970-376-3318 cell਍ഀ Page 2 of 2਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A263... 06/22/2009਍ഀ Page 1 of 1਍ഀ Warren Campbell - FW: 859.003 Ottley Complaint਍ഀ From:਍ഀ "Jeffrey Karl Smith"਍ഀ To:਍ഀ "'Warren Campbell"'਍ഀ Date:਍ഀ 5/22/2009 10:15 AM਍ഀ Subject:਍ഀ FW: 859.003 Ottley Complaint਍ഀ Attachments:਍ഀ Warren,਍ഀ Thought you'd be interested to see where this is going. We remain on hold due to this information.਍ഀ Please pay closed attention to the map on the last page.਍ഀ We look forward to hearing your thoughts.਍ഀ Jeff Smith਍ഀ Roger Egli਍ഀ From: Linda J. Simmons [mailto:simmons@b-p-law.com]਍ഀ Sent: Thursday, May 21, 2009 10:04 AM਍ഀ To: Jeffrey Karl Smith (Jeff@homeoutfittersvail.com)਍ഀ Subject: 859.003 Ottley Complaint਍ഀ Jeff,਍ഀ Attached please find West Ridge's First Set of Discovery Requests to you and Roger. Ms. Adam wants to depose਍ഀ both of you, which we tentatively set for Thursday June 18, to be continued into Friday, June 19, if necessary.਍ഀ We have not been served with the notices of deposition but I will forward them to you as soon as we are.਍ഀ Please do not hesitate to contact me or Randy with questions.਍ഀ Linda਍ഀ Linda J. Simmons਍ഀ Paralegal਍ഀ Bailey & Peterson, PC਍ഀ 1660 Lincoln Street, Suite 3175਍ഀ Denver, CO 80264਍ഀ tel: 303-837-1660; fax: 303-837-0097਍ഀ This message and the accompanying documents are intended only for the use of the individual or entity to which they are addressed਍ഀ and may contain information that is privileged or confidential and exempt from disclosure under applicable law. If the reader of this਍ഀ message and accompanying documents is not the intended recipient or employee or agent responsible for delivering this message to the਍ഀ intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited.਍ഀ If you have received this communication in error, please notify us immediately by telephone and return the original message and਍ഀ accompanying documents to us at the above address. Thank you.਍ഀ file://C:\Documents and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A167B... 06/22/2009਍ഀ / ~le਍ഀ 5233814਍ഀ l`SER4਍ഀ May 18 2009਍ഀ 2:29PM਍ഀ DISTRICT COURT, EAGLE COUNTY, COLORADO਍ഀ Court Address: 885 Chambers Road, P.O. Box 597਍ഀ Eagle, Colorado 81631-0597਍ഀ Plaintiffs:਍ഀ J. DUDLEY OTTLEY, SR. and J.਍ഀ DUDLEY OTTLEY, JR.਍ഀ Defendants:਍ഀ WEST RIDGE CONDOMINIUM਍ഀ INVESTORS, LLC, JEFFREY KARL਍ഀ SMITH, ROGER EGLI, DANIEL M.਍ഀ QUINN, PATRICE L. HALLORAN,਍ഀ ♦ COURT USE ONLY਍ഀ FIRST WESTERN MORTGAGE਍ഀ SERVICES, INC., BLUE SKY਍ഀ MORTGAGE LLC, OTTAWA਍ഀ SAVINGS BANK, MAVERICK਍ഀ LENDING NETWORK, ALPINE਍ഀ BANK, ALPINE BANK AVON,਍ഀ ALPINE BANK VAIL, PAUL਍ഀ ANDERSON COLLECTION LTD.,਍ഀ AFFILIATED FINANCIAL GROUP,਍ഀ INC., and MORTGAGE਍ഀ ELECTRONIC REGISTRATION਍ഀ SYSTEMS, INC.਍ഀ Counterclaim Plaintiff:਍ഀ WEST RIDGE CONDOMINIUM਍ഀ INVESTORSS, LLC਍ഀ Counterclaim Defendants:਍ഀ J. DUDLEY OTTLEY, SR, and J.਍ഀ DUDLEY OTTLEY, JR.਍ഀ Cross Claim Plaintiff:਍ഀ WEST RIDGE CONDOMINIUM਍ഀ INVESTORSS, LLC਍ഀ Cross Claim Defendants:਍ഀ J. DUDLEY OTTLEY, SR., J.਍ഀ DUDLEY OTTLEY JR., LUIGI਍ഀ GIORDANI, ELIZABETH PLOTKE-਍ഀ GIORDANI, SUSAN C. HENDRICH,਍ഀ MARVIN W. CLARY, LAURA D.਍ഀ CLARY, CHRISTOPHER M. SAURO,਍ഀ CAROLYN RUGGE-PRICE, AS਍ഀ TRUSTEE, DANTAS BUILDERS,਍ഀ INC., MORTGAGE ELECTRONIC਍ഀ REGISTRATION SERVICES INC.,਍ഀ WELLS FARGO BANK, N.A.,਍ഀ PUBLIC TRUSEE OF EAGLE਍ഀ COUNTY, COLORADO, DANIEL M.਍ഀ QUINN, PATRICE HALLORAN,਍ഀ ROGER EGLI, JEFRREY KARL਍ഀ SMITH, MAVERICK LENDING਍ഀ NETWORK, ALPINE BANK, PAUL਍ഀ ANDERSON COLLECTION, LTD.,਍ഀ AFFILIATED FINANCIAL GROUP,਍ഀ INC., and all unknown persons who਍ഀ claim any interest in the subject matter਍ഀ of this action਍ഀ Attorney for Defendant, Counterclaim਍ഀ Plaintiff and Cross Claim Plaintiff,਍ഀ WEST RIDGE CONDOMINIUM਍ഀ Case Number: 2006 CV 627਍ഀ INVESTORS, LLC:਍ഀ Nancy Adam, #24445਍ഀ Div.: 2਍ഀ 765 Forest Road਍ഀ Vail, Colorado 81657਍ഀ Telephone: (970) 476-5383਍ഀ Facsimile: (970) 476-9194਍ഀ E-mail: NSAVailLa. aol.com਍ഀ WEST RIDGE'S FIRST SET OF DISCOVERY REQUESTS TO਍ഀ CROSS CLAIM DEFENDANT JEFFREY KARL SMITH਍ഀ Defendant, Counterclaim Plaintiff and Cross Claim Plaintiff, WEST RIDGE਍ഀ CONDOMINIUM INVESTORS, LLC, a Colorado Limited Liability Company ("West Ridge"),਍ഀ by and through its attorney, NANCY ADAM, hereby submits its First Set of Discovery Requests਍ഀ to Cross Claim Defendant Jeffrey Karl Smith, under C.R.C.P. 26, 33, 34, and 36, as follows:਍ഀ 1. GENERAL INSTRUCTIONS਍ഀ A. An answer or other appropriate response must be given to each interrogatory,਍ഀ request for production, and request for admission.਍ഀ B. Each answer must be as complete and straightforward as the information਍ഀ reasonably available to you permits. If you cannot respond to any of these interrogatories or਍ഀ discovery requests in full after exercising due diligence to secure the information to do so, please਍ഀ 2਍ഀ so state, describe the efforts made to secure the information, and respond in as detailed a manner਍ഀ as possible based on such information as is available.਍ഀ C. Whenever an interrogatory may be answered by referring to a document, the਍ഀ document may be attached as an exhibit to the response and referred to in the response. If the਍ഀ document has more than one page, refer to the page and section where the answer to the਍ഀ interrogatory can be found.਍ഀ D. You are required to produce all responsive information and documents (absent a਍ഀ valid privilege or court order to the contrary) that are within your possession, custody, or control.਍ഀ This includes constructive possession and is not limited to your actual physical possession.਍ഀ As long as you have a superior right to compel production from a third party (including any਍ഀ agent, attorney or representative), you are deemed to have "possession, custody or control."਍ഀ E. If you decline to produce any document pursuant to these requests on the ground਍ഀ that it is protected by some privilege, immunity, or doctrine, then for each such document਍ഀ provide the following information: (1) give a brief description of the document sufficient to਍ഀ enable the document to be identified; (2) describe the subject of the document; (3) state the date਍ഀ the document was prepared; (4) identify all persons who prepared or signed the document,਍ഀ including their job titles at the time and their current addresses and phone numbers; (5) identify਍ഀ all persons who received or reviewed copies of the document, including their job titles at the਍ഀ time and their current addresses and phone numbers; and (6) state the privilege, immunity, or਍ഀ doctrine which you claim protects the document from disclosure.਍ഀ F. Please organize and Bates label all documents produced in response to these਍ഀ interrogatories or requests to indicate the specific discovery interrogatory or request to which਍ഀ each document is responsive.਍ഀ G. If you assert an objection as to part, but not all, of any discovery request, please਍ഀ answer fully each part or aspect of the discovery request as to which no objection is made.਍ഀ H. These interrogatories and requests for production of documents are continuing in਍ഀ nature, and the answers to these interrogatories and responses to the request for production of਍ഀ documents are to be supplemented, in accordance with the Colorado Rules of Civil Procedure, in਍ഀ the event that any event, document, statement, or communication within the scope of said rules਍ഀ comes to the attention, possession, custody, or control of you or any of your employees,਍ഀ representatives, agents, or attorneys subsequent to the filing of responses hereto. Said responses਍ഀ must be supplemented within twenty (20) days after receipt of such new or different information਍ഀ and/or document and must include as part of the supplemental answers and responses the date਍ഀ upon and the manner in which such further or different information came to your attention.਍ഀ 1. If an objection is made, the reason therefore shall be stated. The answer shall਍ഀ specifically deny the matter or set forth in detail the reasons why you cannot truthfully admit or਍ഀ deny the matter. A denial shall fairly meet the substance of the request for admission. When਍ഀ good faith requires you to qualify your answers or deny only part of the matter for which an਍ഀ admission is requested, you shall specify so much of it as true and qualified and deny the਍ഀ remainder.਍ഀ J. If copies of a document have been prepared and the copies are not identical਍ഀ (or have undergone alterations by the addition or deletion of notations, text, marginal comments,਍ഀ or other modifications), each non-identical copy is a separate "document."਍ഀ K. If you know that any document(s) within this request has been destroyed or lost,਍ഀ or is unavailable for any other reason, within thirty (30) days of service hereof, you shall serve a਍ഀ written list of any document(s) so unavailable, and identify each document as follows:਍ഀ 1. The request to which the document(s) pertains;਍ഀ 2. Date;਍ഀ 3. Author's name, title and address;਍ഀ 4. The name and address of each other person to whom the document(s) was਍ഀ sent, shown, or displayed;਍ഀ 5. The general character or nature of the document(s);਍ഀ 6. The reason for its present unavailability; and਍ഀ 7. Its present location/custodian.਍ഀ L. As a courtesy, please set forth the actual language of each request immediately਍ഀ prior to the response given for that request. At your request, West Ridge's counsel will provide਍ഀ you with a copy of these requests by e-mail or electronic disk for your convenience.਍ഀ M. Your answers to these discovery requests must be verified, dated, and signed.਍ഀ II. DEFINITIONS਍ഀ A. "And" and "or" shall be construed both conjunctively and disjunctively so as to਍ഀ provide the broadest possible meaning.਍ഀ B. "Document" means a writing, as defined in CRE 1001, and includes the original਍ഀ or a copy of handwriting, typewriting, printing, photostating, photographing, videotaping, and਍ഀ every other means of recording upon any tangible thing and form of communicating or਍ഀ representation, including letters, words, pictures, sounds or symbols, or combinations of them.਍ഀ C. Whenever there is a request in these Interrogatories to "identify" a document or਍ഀ for the "identity" of a document, please state as to such document the following information:਍ഀ (1) its date, its title, if it has one, and all identifying numbers and/or letters, if any; (2) all other਍ഀ identifying or categorizing designations and a brief description thereof (such as a letter,਍ഀ memorandum, manuscript, notes, etc.); (3) the name, title, address and telephone number of each਍ഀ addressor, author, signator or preparer; (4) the name, title, address and telephone number of each਍ഀ 4਍ഀ addressee and of each other person intended to receive or actually receiving a copy thereof,਍ഀ (5) its present location and the name, address and telephone number of the person having custody਍ഀ or control over the original and each copy of it; (6) if the document is not the original, the name,਍ഀ address and telephone number of the person having custody or control of the original; and਍ഀ (7) any other designation necessary to sufficiently identify the document so that a copy thereof਍ഀ may be ordered and obtained from the custodian thereof.਍ഀ D. Whenever there is a request in these Interrogatories to "identify" a person or for਍ഀ the "identity" of a person, please state as to such person the following information:਍ഀ If a natural person: (1) his/her full name; (2) his/her occupation,਍ഀ business or profession; (3) his/her present employer and title; (4) his/her਍ഀ employer at present and at the time of the actions to which each਍ഀ interrogatory is directed; (5) his/her last known business address and਍ഀ telephone number; (6) his/her last known home address and telephone਍ഀ number; and (7) if a signed statement has been obtained for or from such਍ഀ person, indicate the date it was obtained, the name, address, telephone਍ഀ number, and occupation of the person obtaining same, and the name,਍ഀ address, and telephone number of the person having custody of the same;਍ഀ and whether a memorandum and interview with such person exists, and if਍ഀ so, the name, address, telephone number, and occupation of the person਍ഀ preparing the same, the date of preparation, and the name, address, and਍ഀ telephone number of the person having custody of such memorandum.਍ഀ If other than a natural person: (I) its full name; (2) the type of਍ഀ business in which it is engaged; (3) the last known address and telephone਍ഀ number of its principal office; (4) the type of entity (e.g., corporation,਍ഀ general partnership, limited partnership, limited liability company, joint਍ഀ venture, sole proprietorship, etc.); (5) if a corporation, the state or nation਍ഀ of its incorporation; if it is not a Colorado corporation, a statement as to਍ഀ whether it is duly authorized to transact business in the State of Colorado;਍ഀ and (6) if a partnership or limited liability company, a statement as to਍ഀ whether it is registered, and if it is registered, the state in which the਍ഀ partnership is registered and whether such partnership is duly authorized਍ഀ to transact business within the State of Colorado.਍ഀ E. Whenever the terms "relate to," "relating to," or "related to" are used herein, they਍ഀ shall mean consist of, refer to, reflect on, arise out of, or be in any way or manner legally or਍ഀ logically connected to the matter discussed.਍ഀ F. "State all facts" means to state all facts that are known to you, your investigators,਍ഀ attorneys, accountants or agents. Where an interrogatory asks in reference to a contention to਍ഀ "state all facts," or "identify all documents," the response shall include all communications਍ഀ negating, as well as supporting, the contention. Where an interrogatory asks in reference to a਍ഀ contention to "identify each person," the response shall include persons having knowledge of਍ഀ facts negating, as well as supporting, the contention.਍ഀ G. "Defendants' Properties" refers to the West Ridge Property, the Egli-Smith਍ഀ Property, and/or the Quinn-Halloran Property.਍ഀ H. "Incident" includes the circumstances and events surrounding (1) the existence of਍ഀ the Prescriptive Easement declared in the Prior Lawsuit; (2) the easements at issue in this਍ഀ litigation that Plaintiffs claim create a benefit to Plaintiffs' Property and a burden to Defendants'਍ഀ Properties; (3) the portion of Plaintiffs" Property defined as the "Western Strip of Land" located਍ഀ between the fence and the west property line of Plaintiffs' Property to which West Ridge claims਍ഀ title by adverse possession; (4) the portions of Plaintiffs' Property defined as the "Disputed਍ഀ Access Parcel" and/or the "Disputed Parking Parcel" to which West Ridge claims prescriptive਍ഀ easement for access and/or parking; (5) each of Plaintiffs' eight (8) express easement claims; (6)਍ഀ West Ridge's request to relocate any easement obligation owed by West Ridge to the਍ഀ Prescriptive Easement; and/or (7) related matters giving rise to this action or proceeding.਍ഀ 1. "You" includes Jeffrey Karl Smith, your agents, your employees, your insurance਍ഀ companies, their agents, their employees, your attorneys, your accountants, your investigators,਍ഀ and anyone else acting on your behalf.਍ഀ J. "Person" includes a natural person, firm, association, organization, partnership,਍ഀ business, trust, corporation, or public entity.਍ഀ K. In producing the documents requested herein, you shall furnish all documents in਍ഀ the possession, custody, or control of or accessible to any servant, employee, representative, or਍ഀ agent of yours, including your attorneys, accountants, and investigators, unless any document is਍ഀ claimed to be privileged from discovery.਍ഀ L. The word "address" means street address, including the city, state, and zip code.਍ഀ M. The word "agent" means any person or entity that has been either hired by you or਍ഀ otherwise has a principal agent relationship with you, including, but not limited to, your਍ഀ attorneys, accountants, investigators, and financial advisors.਍ഀ N. The word "genuine" as it pertains to a document means that for purposes of਍ഀ authentication, the document is authentic, it is what it purports to be, and it is free from forgery.਍ഀ 0. "Block 8 Subdivision" refers to Lots 1, 2, 3, 4, 5, 6, 7, 8, and 9 of the Vail਍ഀ Intermountain Development Subdivision of Block 8, as delineated on that certain plat of survey਍ഀ entitled Vail Intermountain Development Subdivision-Block 8 Final Plat, dated August 5, 1971਍ഀ (the "Plat") recorded in Book 221 at Page 547.਍ഀ 6਍ഀ P. "Innsbruck Meadows Subdivision" refers to Lots 1-13 of the Fourth Amendment਍ഀ to the Final Plat of the Innsbruck Meadows Subdivision, Eagle County, Colorado, dated October਍ഀ 17, 1997.਍ഀ Q. "Plaintiffs' Property" refers to the real estate located on the east portion of Lot 1਍ഀ of the Block 8 Subdivision commonly known as 2902 Bellflower Drive, Vail, Colorado and਍ഀ owned by Plaintiffs J. Dudley Ottley, Sr. and J. Dudley Ottley Jr.਍ഀ R. The "Prescriptive Easement" refers to the easement for ingress, egress and਍ഀ parking declared in the judgment entered on May 31, 2007 in the Prior Lawsuit.਍ഀ S. The "Prior Lawsuit" refers to the lawsuit litigated in Eagle County District Court਍ഀ entitled "West Ridge Condominium Investors, LLC. v. Quinn, et al., Case No. 2005 CV 328.਍ഀ T. The "West Ridge Property" refers to the real estate located on the west portion of਍ഀ Lot 1 of the Block 8 Subdivision on which the West Ridge Condominiums are constructed and਍ഀ commonly known as 2922 Bellflower Drive, Vail, Colorado.਍ഀ U. The "Egli-Smith Property" refers to Lot I of the Innsbruck Meadows Subdivision਍ഀ owned by Defendants Jeffrey Karl Smith and Roger Egli.਍ഀ V. The "Quinn-Halloran Property" refers to Lot 4 of the Innsbruck Meadows਍ഀ Subdivision owned by Defendants Daniel Quinn and Patrice Halloran.਍ഀ W. The "Judgment Entered in the Prior Lawsuit" refer to the judgment entered May਍ഀ 31, 2007 in the Prior Lawsuit.਍ഀ III. PATTERN INTERROGATORIES਍ഀ Interrogatory No. 1. State the name, ADDRESS, telephone number, and relationship to਍ഀ you of each PERSON who prepared or assisted in the preparation of the responses to these਍ഀ interrogatories. (Do not identify anyone who simply typed or reproduced the responses.)਍ഀ Interrogatory No. 2. If your employment has changed since October 15, 2006, state:਍ഀ a. the name, ADDRESS, and telephone number of your present employer or place਍ഀ of self-employment;਍ഀ b. the name, ADDRESS, dates of employment, job title, and nature of work for each਍ഀ employer or self-employment you have had since October 15, 2006 until today.਍ഀ Interrogatory No. 3. Have YOU OR ANYONE ACTING ON YOUR BEHALF਍ഀ interviewed any individual concerning the INCIDENT (Plaintiffs' easement claims)? If so, for each਍ഀ individual state:਍ഀ a. the name, ADDRESS, and telephone number of the individual interviewed;਍ഀ 7਍ഀ b. the date of the interview;਍ഀ c. the name, ADDRESS, and telephone number of the PERSON who conducted the਍ഀ interview.਍ഀ Interrogatory No. 4. Have YOU OR ANYONE ACTING ON YOUR BEHALF਍ഀ obtained a written or recorded statement from any individual concerning the INCIDENT (Plaintiffs'਍ഀ easement claims)? If so, for each statement state:਍ഀ a. the name, ADDRESS, and telephone number of the individual from whom the਍ഀ statement was obtained;਍ഀ b. the name, ADDRESS, and telephone number of the individual who obtained the਍ഀ statement;਍ഀ c. the date the statement was obtained;਍ഀ d. the name, ADDRESS, and telephone number of each PERSON who has the਍ഀ original statement or a copy.਍ഀ Interrogatory No. 5. Do YOU OR ANYONE ACTING ON YOUR BEHALF know਍ഀ of any photographs, films, or videotapes depicting any place, object, or individual concerning the਍ഀ INCIDENT (Plaintiffs' easement claims)? If so, state:਍ഀ a. the number of photographs or feet of film or videotape;਍ഀ b. the places, objects, or persons photographed, filmed, or videotaped;਍ഀ c. the date the photographs, films, or videotapes were taken;਍ഀ d. the name, ADDRESS, and telephone number of the individual taking the਍ഀ photographs, films, or videotapes;਍ഀ e. the name, ADDRESS, and telephone number of each PERSON who has the਍ഀ original or a copy.਍ഀ Interrogatory No. 6. Identify each denial of a material allegation and each affirmative਍ഀ defense in your pleadings and for each:਍ഀ a. state all facts upon which you base the denial or affirmative defense;਍ഀ b. state the names, ADDRESSES, and telephone numbers of all PERSONS who਍ഀ have knowledge of those facts;਍ഀ c. identify all DOCUMENTS and other tangible things which support your denial਍ഀ or affirmative defense, and state the name, ADDRESS, and telephone number of਍ഀ the PERSON who has each DOCUMENT.਍ഀ Interrogatory No. 7. Is your response to each request for admission served with these਍ഀ interrogatories an unqualified admission? If not, for each response that is not an unqualified਍ഀ admission:਍ഀ a. state the number of the request;਍ഀ b. state all facts upon which you base your response;਍ഀ c. state the names, ADDRESSES, and telephone numbers of all PERSONS who਍ഀ have knowledge of those facts;਍ഀ d. identify all DOCUMENTS and other tangible things that support your response਍ഀ and state the name, ADDRESS, and telephone number of the PERSON who has਍ഀ each DOCUMENT or thing.਍ഀ NON-PATTERN INTERROGATORIES਍ഀ Interrogatory No. 8. Identify anyone other than West Ridge (or its tenants) who use the਍ഀ Prescriptive Easement, including the dates of use, the route used, how long that route has been used਍ഀ for ingress and egress by the "others", and who maintains, plows, repairs, restores, and uses the਍ഀ access route used by the "others".਍ഀ Interrogatory No. 9. Identify any changes in the location and type of access for ingress਍ഀ and egress to Plaintiffs' Property since April 30, 2002, describe the change made, who made the਍ഀ change, why the change was made, and how long that change has remained in effect for ingress and਍ഀ egress to Plaintiffs' Property.਍ഀ Interrogatory No. 10. For each of the photographs or documents you have produced਍ഀ either in disclosures or in response to these requests, explain why that photograph or document਍ഀ supports your claim that the Prescriptive Easement does not include ingress and egress to Plaintiffs'਍ഀ Property.਍ഀ Interrogatory No. 11. Describe all conversations that you have had with any of the਍ഀ parties regarding the Incident. In your description, identify the date (including the day, month, year)਍ഀ of the conversation, the name of the individual with whom you spoke, and the subject matter of your਍ഀ conversations, if any.਍ഀ Interrogatory No. 12. Describe how use of the Prescriptive Easement for ingress and਍ഀ egress to Plaintiffs' Property expands the scope, burden, or purpose of the Prescriptive Easement.਍ഀ Interrogatory No. 13. Describe how you are damaged by use of the Prescriptive਍ഀ Easement for ingress and egress to Plaintiffs' Property.਍ഀ Interrogatory No. 14. Describe any encounters with individuals other than your family਍ഀ members that you have had since April 30, 2002 concerning any Incident. In your description,਍ഀ identify the date (include the day, month, and year) of the encounter, the name of the individual that਍ഀ you encountered, and the subject matter of your conversations, if any. Specifically describe any਍ഀ conversations that you had regarding use of any of the alleged easements.਍ഀ Interrogatory No. 15. Describe all conversations that you have had with any of the਍ഀ parties regarding the Incident. In your description, identify the date (including the day, month, year)਍ഀ of the conversation, the name of the individual with whom you spoke, and the subject matter of your਍ഀ conversations, if any.਍ഀ 9਍ഀ Interrogatory No. 16. Describe all conversations that you have had with the Town of਍ഀ Vail and its staff or employees concerning the Prescriptive Easement and/or access to Plaintiffs'਍ഀ Property, who it was with, and the date.਍ഀ IV. REQUESTS FOR PRODUCTION਍ഀ Request for Production No. 1. Produce all documents and electronically stored਍ഀ information that you referred to, relied upon, consulted, reviewed, or used in any way in਍ഀ responding to this set of discovery requests. Produce exact copies (i.e. bit-by-bit) of all਍ഀ electronically stored information in a digital format.਍ഀ Request for Production No. 2. Produce all applications, correspondence, communications,਍ഀ and reports submitted to the Town of Vail, its staff and/or employees that includes, discusses,਍ഀ involves, or concerns the property burdened by the Prescriptive Easement, including use of the਍ഀ Prescriptive Easement for access to Plaintiffs' Property, access to the West Ridge Property,਍ഀ parking at the West Ridge Property, and/or restoring the Prescriptive Easement to a driveway਍ഀ condition. Produce exact copies (i.e. bit-by-bit) of all electronically stored information in a਍ഀ digital format.਍ഀ Request for Production No. 3. Produce all correspondence related to your claim that਍ഀ Plaintiffs do not have a right to use the Prescriptive Easement. Include all correspondence to਍ഀ your family members, your lender(s), and any other individuals with whom you have਍ഀ communicated regarding the Prescriptive Easement. Produce exact copies (i.e. bit-by-bit) of all਍ഀ electronically stored information in a digital format. If you use Microsoft Outlook or Microsoft਍ഀ Outlook Express, produce all correspondence responsive to this request in a single pst file.਍ഀ Request for Production No. 4. Produce all evidence you relied on in the Prior Lawsuit to਍ഀ argue that others use the Prescriptive Easement. Produce exact copies (i.e. bit-by-bit) of all਍ഀ electronically stored information in a digital format. If you use Microsoft Outlook or Microsoft਍ഀ Outlook Express, produce all correspondence responsive to this request in a single pst file.਍ഀ V. REQUESTS FOR ADMISSION਍ഀ Request for Admission No. 1. Admit that the "others" referred to in the Judgment Entered਍ഀ in the Prior Lawsuit includes Plaintiffs and their predecessors in interest, tenants, guests, and਍ഀ invitees.਍ഀ Request for Admission No. 2. Admit that use of the Prescriptive Easement for access to਍ഀ Plaintiffs' Property does not expand the scope of the Prescriptive Easement.਍ഀ Request for Admission No. 3. Admit that use of the Prescriptive Easement for access to਍ഀ Plaintiffs' Property does not expand the purpose of the Prescriptive Easement.਍ഀ 10਍ഀ Request for Admission No. 4. Admit that use of the Prescriptive Easement for access to਍ഀ Plaintiffs' Property does not increase the burden of the Prescriptive Easement on the Egli-Smith਍ഀ Property.਍ഀ Request for Admission No. 5. Admit that you are not damaged by use of the Prescriptive਍ഀ Easement for access to Plaintiffs" Property.਍ഀ Request for Admission No. 6. Admit that the Prescriptive Easement is wide enough to਍ഀ provide 16.1' access to Plaintiffs' Property.਍ഀ Request for Admission No. 7. Admit that West Ridge and/or its predecessors in interest਍ഀ have been parking on the West Ridge Property in front of the West Ridge Condominiums since਍ഀ 1972 (the "Parking on the West Ridge Property").਍ഀ Request for Admission No. 8. Admit that the Parking on the West Ridge Property਍ഀ prevents access to Plaintiffs' Property across the West Ridge Property.਍ഀ Request for Admission No. 9. Admit that none of the documents listed in Paragraph 6 of਍ഀ the Second Amended Complaint create an express easement across the West Ridge Property.਍ഀ Request for Admission No. 10. Admit that West Ridge and its predecessors in interest have਍ഀ parked vehicles on Plaintiffs' Property since 1972.਍ഀ Request for Admission No. 11. Admit that the historic access to Plaintiffs' Property is਍ഀ accurately depicted on Exhibit A attached hereto and made a part hereof (the "Historic Access to਍ഀ Plaintiffs' Property").਍ഀ Request for Admission No. 12. Admit that the Historic Access to Plaintiffs' Property was਍ഀ across a gravel driveway.਍ഀ Request for Admission No. 13. Admit that the Historic Access to Plaintiffs' Property਍ഀ burdened more of the Egli-Smith and Quinn-Halloran Properties than the Prescriptive Easement਍ഀ burdens these properties.਍ഀ DATED this 18th day of May, 2009.਍ഀ Respectfully submitted,਍ഀ Ori ig nal Siknature on File਍ഀ Nancy Adam, #24445਍ഀ ATTORNEY FOR DEFENDANT,਍ഀ COUNTERCLAIM PLAINTIFF, and CROSS਍ഀ 11਍ഀ CLAIM PLAINTIFF WEST RIDGE਍ഀ CONDOMINIUM INVESTORS, LLC਍ഀ CERTIFICATE OF SERVICE਍ഀ The undersigned hereby certifies that the foregoing document was served this਍ഀ 18th day of May, 2009 via Lexis Nexis File & Serve on the following:਍ഀ James S. Bailey, Jr., Esq.਍ഀ Randall M. Livingston, Esq.਍ഀ Bailey & Peterson, P.C.਍ഀ 1660 Lincoln Street, Suite 3175਍ഀ Denver, CO 80264਍ഀ Original Signature on File਍ഀ Nancy Adam਍ഀ This document is e-filed via Lexis Nexis File & Serve. The printed copy of this document਍ഀ with original signatures is maintained in the offices of Nancy Adam, Esquire,਍ഀ pursuant to Rule 121, § 1-26 of theColorado Rules of Civil Procedure.਍ഀ 12਍ഀ Exhibit A to Initial Disclosures--Historic Access to Plaintiffs' Property਍ഀ Lm~c਍ഀ 0 AYW4Lr VAm (rv_)਍ഀ i਍ഀ ~਍ഀ i਍ഀ o M57MV AGMW a4MV QV FWZ JWWV਍ഀ D A਍ഀ UME਍ഀ V O਍ഀ uravrlj਍ഀ 1਍ഀ /਍ഀ EGU-SMTH਍ഀ ! OUAW-HALLORAN਍ഀ y਍ഀ Jim:਍ഀ agp਍ഀ RV,W COAVO& /S Y਍ഀ M[7r1ii[਍ഀ Qf~gMAO਍ഀ OTXEY PROPERTY਍ഀ p਍ഀ DANTAS MUMS M਍ഀ 13਍ഀ vN~~਍ഀ May 18 2009਍ഀ 2:29PM਍ഀ DISTRICT COURT, EAGLE COUNTY, COLORADO਍ഀ Court Address: 885 Chambers Road, P.O. Box 597਍ഀ Eagle, Colorado 81631-0597਍ഀ Plaintiffs:਍ഀ J. DUDLEY OTTLEY, SR. and J.਍ഀ DUDLEY OTTLEY, JR.਍ഀ Defendants:਍ഀ WEST RIDGE CONDOMINIUM਍ഀ INVESTORS, LLC, JEFFREY KARL਍ഀ SMITH, ROGER EGLI, DANIEL M.਍ഀ QUINN, PATRICE L. HALLORAN,਍ഀ ♦ COURT USE ONLY਍ഀ FIRST WESTERN MORTGAGE਍ഀ SERVICES, INC., BLUE SKY਍ഀ MORTGAGE LLC, OTTAWA਍ഀ SAVINGS BANK, MAVERICK਍ഀ LENDING NETWORK, ALPINE਍ഀ BANK, ALPINE BANK AVON,਍ഀ ALPINE BANK VAIL, PAUL਍ഀ ANDERSON COLLECTION LTD.,਍ഀ AFFILIATED FINANCIAL GROUP,਍ഀ INC., and MORTGAGE਍ഀ ELECTRONIC REGISTRATION਍ഀ SYSTEMS, INC.਍ഀ Counterclaim Plaintiff:਍ഀ WEST RIDGE CONDOMINIUM਍ഀ INVESTORSS, LLC਍ഀ Counterclaim Defendants:਍ഀ J. DUDLEY OTTLEY, SR, and J.਍ഀ DUDLEY OTTLEY, JR.਍ഀ Cross Claim Plaintiff:਍ഀ WEST RIDGE CONDOMINIUM਍ഀ INVESTORSS, LLC਍ഀ Cross Claim Defendants:਍ഀ J. DUDLEY OTTLEY, SR., J.਍ഀ DUDLEY OTTLEY JR., LUIGI਍ഀ GIORDANI, ELIZABETH PLOTKE-਍ഀ GIORDANI, SUSAN C. HENDRICH,਍ഀ MARVIN W. CLARY, LAURA D.਍ഀ CLARY, CHRISTOPHER M. SAURO,਍ഀ CAROLYN RUGGE-PRICE, AS਍ഀ TRUSTEE, DANTAS BUILDERS,਍ഀ INC., MORTGAGE ELECTRONIC਍ഀ REGISTRATION SERVICES INC.,਍ഀ WELLS FARGO BANK, N.A.,਍ഀ PUBLIC TRUSEE OF EAGLE਍ഀ COUNTY, COLORADO, DANIEL M.਍ഀ QUINN, PATRICE HALLORAN,਍ഀ ROGER EGLI, JEFRREY KARL਍ഀ SMITH, MAVERICK LENDING਍ഀ NETWORK, ALPINE BANK, PAUL਍ഀ ANDERSON COLLECTION, LTD.,਍ഀ AFFILIATED FINANCIAL GROUP,਍ഀ INC., and all unknown persons who਍ഀ claim any interest in the subject matter਍ഀ of this action਍ഀ Attorney for Defendant, Counterclaim਍ഀ Plaintiff and Cross Claim Plaintiff,਍ഀ WEST RIDGE CONDOMINIUM਍ഀ Case Number: 2006 CV 627਍ഀ INVESTORS, LLC:਍ഀ Nancy Adam, #24445਍ഀ Div.: 2਍ഀ 765 Forest Road਍ഀ Vail, Colorado 81657਍ഀ Telephone: (970) 476-5383਍ഀ Facsimile: (970) 476-9194਍ഀ E-mail: NSAVail(&,aol.com਍ഀ WEST RIDGE'S FIRST SET OF DISCOVERY REQUESTS TO਍ഀ CROSS CLAIM DEFENDANT ROGER EGLI਍ഀ Defendant, Counterclaim Plaintiff and Cross Claim Plaintiff, WEST RIDGE਍ഀ CONDOMINIUM INVESTORS, LLC, a Colorado Limited Liability Company ("West Ridge"),਍ഀ by and through its attorney, NANCY ADAM, hereby submits its First Set of Discovery Requests਍ഀ to Cross Claim Defendant Roger Egli, under C.R.C.P. 26, 33, 34, and 36, as follows:਍ഀ 1. GENERAL INSTRUCTIONS਍ഀ A. An answer or other appropriate response must be given to each interrogatory,਍ഀ request for production, and request for admission.਍ഀ B. Each answer must be as complete and straightforward as the information਍ഀ reasonably available to you permits. If you cannot respond to any of these interrogatories or਍ഀ discovery requests in full after exercising due diligence to secure the information to do so, please਍ഀ 2਍ഀ so state, describe the efforts made to secure the information, and respond in as detailed a manner਍ഀ as possible based on such information as is available.਍ഀ C. Whenever an interrogatory may be answered by referring to a document, the਍ഀ document may be attached as an exhibit to the response and referred to in the response. If the਍ഀ document has more than one page, refer to the page and section where the answer to the਍ഀ interrogatory can be found.਍ഀ D. You are required to produce all responsive information and documents (absent a਍ഀ valid privilege or court order to the contrary) that are within your possession, custody, or control.਍ഀ This includes constructive possession and is not limited to your actual physical possession.਍ഀ As long as you have a superior right to compel production from a third party (including any਍ഀ agent, attorney or representative), you are deemed to have "possession, custody or control."਍ഀ E. If you decline to produce any document pursuant to these requests on the ground਍ഀ that it is protected by some privilege, immunity, or doctrine, then for each such document਍ഀ provide the following information: (1) give a brief description of the document sufficient to਍ഀ enable the document to be identified; (2) describe the subject of the document; (3) state the date਍ഀ the document was prepared; (4) identify all persons who prepared or signed the document,਍ഀ including their job titles at the time and their current addresses and phone numbers; (5) identify਍ഀ all persons who received or reviewed copies of the document, including their job titles at the਍ഀ time and their current addresses and phone numbers; and (6) state the privilege, immunity, or਍ഀ doctrine which you claim protects the document from disclosure.਍ഀ F. Please organize and Bates label all documents produced in response to these਍ഀ interrogatories or requests to indicate the specific discovery interrogatory or request to which਍ഀ each document is responsive.਍ഀ G. If you assert an objection as to part, but not all, of any discovery request, please਍ഀ answer fully each part or aspect of the discovery request as to which no objection is made.਍ഀ H. These interrogatories and requests for production of documents are continuing in਍ഀ nature, and the answers to these interrogatories and responses to the request for production of਍ഀ documents are to be supplemented, in accordance with the Colorado Rules of Civil Procedure, in਍ഀ the event that any event, document, statement, or communication within the scope of said rules਍ഀ comes to the attention, possession, custody, or control of you or any of your employees,਍ഀ representatives, agents, or attorneys subsequent to the filing of responses hereto. Said responses਍ഀ must be supplemented within twenty (20) days after receipt of such new or different information਍ഀ and/or document and must include as part of the supplemental answers and responses the date਍ഀ upon and the manner in which such further or different information came to your attention.਍ഀ 1. If an objection is made, the reason therefore shall be stated. The answer shall਍ഀ specifically deny the matter or set forth in detail the reasons why you cannot truthfully admit or਍ഀ deny the matter. A denial shall fairly meet the substance of the request for admission. When਍ഀ good faith requires you to qualify your answers or deny only part of the matter for which an਍ഀ admission is requested, you shall specify so much of it as true and qualified and deny the਍ഀ remainder.਍ഀ J. If copies of a document have been prepared and the copies are not identical਍ഀ (or have undergone alterations by the addition or deletion of notations, text, marginal comments,਍ഀ or other modifications), each non-identical copy is a separate "document."਍ഀ K. If you know that any document(s) within this request has been destroyed or lost,਍ഀ or is unavailable for any other reason, within thirty (30) days of service hereof, you shall serve a਍ഀ written list of any document(s) so unavailable, and identify each document as follows:਍ഀ 1. The request to which the document(s) pertains;਍ഀ 2. Date;਍ഀ 3. Author's name, title and address;਍ഀ 4. The name and address of each other person to whom the document(s) was਍ഀ sent, shown, or displayed;਍ഀ 5. The general character or nature of the document(s);਍ഀ 6. The reason for its present unavailability; and਍ഀ 7. Its present location/custodian.਍ഀ L. As a courtesy, please set forth the actual language of each request immediately਍ഀ prior to the response given for that request. At your request, West Ridge's counsel will provide਍ഀ you with a copy of these requests by e-mail or electronic disk for your convenience.਍ഀ M. Your answers to these discovery requests must be verified, dated, and signed.਍ഀ II. DEFINITIONS਍ഀ A. "And" and "or" shall be construed both conjunctively and disjunctively so as to਍ഀ provide the broadest possible meaning.਍ഀ B. "Document" means a writing, as defined in CRE 1001, and includes the original਍ഀ or a copy of handwriting, typewriting, printing, photostating, photographing, videotaping, and਍ഀ every other means of recording upon any tangible thing and form of communicating or਍ഀ representation, including letters, words, pictures, sounds or symbols, or combinations of them.਍ഀ C. Whenever there is a request in these Interrogatories to "identify" a document or਍ഀ for the "identity" of a document, please state as to such document the following information:਍ഀ (1) its date, its title, if it has one, and all identifying numbers and/or letters, if any; (2) all other਍ഀ identifying or categorizing designations and a brief description thereof (such as a letter,਍ഀ memorandum, manuscript, notes, etc.); (3) the name, title, address and telephone number of each਍ഀ addressor, author, signator or preparer; (4) the name, title, address and telephone number of each਍ഀ 4਍ഀ addressee and of each other person intended to receive or actually receiving a copy thereof,਍ഀ (5) its present location and the name, address and telephone number of the person having custody਍ഀ or control over the original and each copy of it; (6) if the document is not the original, the name,਍ഀ address and telephone number of the person having custody or control of the original; and਍ഀ (7) any other designation necessary to sufficiently identify the document so that a copy thereof਍ഀ may be ordered and obtained from the custodian thereof.਍ഀ D. Whenever there is a request in these Interrogatories to "identify" a person or for਍ഀ the "identity" of a person, please state as to such person the following information:਍ഀ If a natural person: (1) his/her full name; (2) his/her occupation,਍ഀ business or profession; (3) his/her present employer and title; (4) his/her਍ഀ employer at present and at the time of the actions to which each਍ഀ interrogatory is directed; (5) his/her last known business address and਍ഀ telephone number; (6) his/her last known home address and telephone਍ഀ number; and (7) if a signed statement has been obtained for or from such਍ഀ person, indicate the date it was obtained, the name, address, telephone਍ഀ number, and occupation of the person obtaining same, and the name,਍ഀ address, and telephone number of the person having custody of the same;਍ഀ and whether a memorandum and interview with such person exists, and if਍ഀ so, the name, address, telephone number, and occupation of the person਍ഀ preparing the same, the date of preparation, and the name, address, and਍ഀ telephone number of the person having custody of such memorandum.਍ഀ If other than a natural person: (1) its full name; (2) the type of਍ഀ business in which it is engaged; (3) the last known address and telephone਍ഀ number of its principal office; (4) the type of entity (e.g., corporation,਍ഀ general partnership, limited partnership, limited liability company, joint਍ഀ venture, sole proprietorship, etc.); (5) if a corporation, the state or nation਍ഀ of its incorporation; if it is not a Colorado corporation, a statement as to਍ഀ whether it is duly authorized to transact business in the State of Colorado;਍ഀ and (6) if a partnership or limited liability company, a statement as to਍ഀ whether it is registered, and if it is registered, the state in which the਍ഀ partnership is registered and whether such partnership is duly authorized਍ഀ to transact business within the State of Colorado.਍ഀ E. Whenever the terms "relate to," "relating to," or "related to" are used herein, they਍ഀ shall mean consist of, refer to, reflect on, arise out of, or be in any way or manner legally or਍ഀ logically connected to the matter discussed.਍ഀ F. "State all facts" means to state all facts that are known to you, your investigators,਍ഀ attorneys, accountants or agents. Where an interrogatory asks in reference to a contention to਍ഀ "state all facts," or "identify all documents," the response shall include all communications਍ഀ negating, as well as supporting, the contention. Where an interrogatory asks in reference to a਍ഀ 5਍ഀ contention to "identify each person," the response shall include persons having knowledge of਍ഀ facts negating, as well as supporting, the contention.਍ഀ G. "Defendants' Properties" refers to the West Ridge Property, the Egli-Smith਍ഀ Property, and/or the Quinn-Halloran Property.਍ഀ H. "Incident" includes the circumstances and events surrounding (1) the existence of਍ഀ the Prescriptive Easement declared in the Prior Lawsuit; (2) the easements at issue in this਍ഀ litigation that Plaintiffs claim create a benefit to Plaintiffs' Property and a burden to Defendants'਍ഀ Properties; (3) the portion of Plaintiffs" Property defined as the "Western Strip of Land" located਍ഀ between the fence and the west property line of Plaintiffs' Property to which West Ridge claims਍ഀ title by adverse possession; (4) the portions of Plaintiffs' Property defined as the "Disputed਍ഀ Access Parcel" and/or the "Disputed Parking Parcel" to which West Ridge claims prescriptive਍ഀ easement for access and/or parking; (5) each of Plaintiffs' eight (8) express easement claims; (6)਍ഀ West Ridge's request to relocate any easement obligation owed by West Ridge to the਍ഀ Prescriptive Easement; and/or (7) related matters giving rise to this action or proceeding.਍ഀ 1. "You" includes Roger Egli, your agents, your employees, your insurance਍ഀ companies, their agents, their employees, your attorneys, your accountants, your investigators,਍ഀ and anyone else acting on your behalf.਍ഀ J. "Person" includes a natural person, firm, association, organization, partnership,਍ഀ business, trust, corporation, or public entity.਍ഀ K. In producing the documents requested herein, you shall furnish all documents in਍ഀ the possession, custody, or control of or accessible to any servant, employee, representative, or਍ഀ agent of yours, including your attorneys, accountants, and investigators, unless any document is਍ഀ claimed to be privileged from discovery.਍ഀ L. The word "address" means street address, including the city, state, and zip code.਍ഀ M. The word "agent" means any person or entity that has been either hired by you or਍ഀ otherwise has a principal agent relationship with you, including, but not limited to, your਍ഀ attorneys, accountants, investigators, and financial advisors.਍ഀ N. The word "genuine" as it pertains to a document means that for purposes of਍ഀ authentication, the document is authentic, it is what it purports to be, and it is free from forgery.਍ഀ 0. "Block 8 Subdivision" refers to Lots 1, 2, 3, 4, 5, 6, 7, 8, and 9 of the Vail਍ഀ Intermountain Development Subdivision of Block 8, as delineated on that certain plat of survey਍ഀ entitled Vail Intermountain Development Subdivision-Block 8 Final Plat, dated August 5, 1971਍ഀ (the "Plat") recorded in Book 221 at Page 547.਍ഀ P. "Innsbruck Meadows Subdivision" refers to Lots 1-13 of the Fourth Amendment਍ഀ to the Final Plat of the Innsbruck Meadows Subdivision, Eagle County, Colorado, dated October਍ഀ 17, 1997.਍ഀ Q. "Plaintiffs' Property" refers to the real estate located on the east portion of Lot 1਍ഀ of the Block 8 Subdivision commonly known as 2902 Bellflower Drive, Vail, Colorado and਍ഀ owned by Plaintiffs J. Dudley Ottley, Sr. and J. Dudley Ottley Jr.਍ഀ R. The "Prescriptive Easement" refers to the easement for ingress, egress and਍ഀ parking declared in the judgment entered on May 31, 2007 in the Prior Lawsuit.਍ഀ S. The "Prior Lawsuit" refers to the lawsuit litigated in Eagle County District Court਍ഀ entitled "West Ridge Condominium Investors, LLC. v. Quinn, et al., Case No. 2005 CV 328.਍ഀ T. The "West Ridge Property" refers to the real estate located on the west portion of਍ഀ Lot 1 of the Block 8 Subdivision on which the West Ridge Condominiums are constructed and਍ഀ commonly known as 2922 Bellflower Drive, Vail, Colorado.਍ഀ U. The "Egli-Smith Property" refers to Lot 1 of the Innsbruck Meadows Subdivision਍ഀ owned by Defendants Jeffrey Karl Smith and Roger Egli.਍ഀ V. The "Quinn-Halloran Property" refers to Lot 4 of the Innsbruck Meadows਍ഀ Subdivision owned by Defendants Daniel Quinn and Patrice Halloran.਍ഀ W. The "Judgment Entered in the Prior Lawsuit" refer to the judgment entered May਍ഀ 31, 2007 in the Prior Lawsuit.਍ഀ III. PATTERN INTERROGATORIES਍ഀ Interrogatory No. 1. State the name, ADDRESS, telephone number, and relationship to਍ഀ you of each PERSON who prepared or assisted in the preparation of the responses to these਍ഀ interrogatories. (Do not identify anyone who simply typed or reproduced the responses.)਍ഀ Interrogatory No. 2. If your employment has changed since October 15, 2006, state:਍ഀ a. the name, ADDRESS, and telephone number of your present employer or place਍ഀ of self-employment;਍ഀ b. the name, ADDRESS, dates of employment, job title, and nature of work for each਍ഀ employer or self-employment you have had since October 15, 2006 until today.਍ഀ Interrogatory No. 3. Have YOU OR ANYONE ACTING ON YOUR BEHALF਍ഀ interviewed any individual concerning the INCIDENT (Plaintiffs' easement claims)? If so, for each਍ഀ individual state:਍ഀ a. the name, ADDRESS, and telephone number of the individual interviewed;਍ഀ 7਍ഀ b. the date of the interview;਍ഀ c. the name, ADDRESS, and telephone number of the PERSON who conducted the਍ഀ interview.਍ഀ Interrogatory No. 4. Have YOU OR ANYONE ACTING ON YOUR BEHALF਍ഀ obtained a written or recorded statement from any individual concerning the INCIDENT (Plaintiffs'਍ഀ easement claims)? If so, for each statement state:਍ഀ a. the name, ADDRESS, and telephone number of the individual from whom the਍ഀ statement was obtained;਍ഀ b. the name, ADDRESS, and telephone number of the individual who obtained the਍ഀ statement;਍ഀ c. the date the statement was obtained;਍ഀ d. the name, ADDRESS, and telephone number of each PERSON who has the਍ഀ original statement or a copy.਍ഀ Interrogatory No. 5. Do YOU OR ANYONE ACTING ON YOUR BEHALF know਍ഀ of any photographs, films, or videotapes depicting any place, object, or individual concerning the਍ഀ INCIDENT (Plaintiffs' easement claims)? If so, state:਍ഀ a. the number of photographs or feet of film or videotape;਍ഀ b. the places, objects, or persons photographed, filmed, or videotaped;਍ഀ c. the date the photographs, films, or videotapes were taken;਍ഀ d. the name, ADDRESS, and telephone number of the individual taking the਍ഀ photographs, films, or videotapes;਍ഀ e. the name, ADDRESS, and telephone number of each PERSON who has the਍ഀ original or a copy.਍ഀ Interrogatory No. 6. Identify each denial of a material allegation and each affirmative਍ഀ defense in your pleadings and for each:਍ഀ a. state all facts upon which you base the denial or affirmative defense;਍ഀ b. state the names, ADDRESSES, and telephone numbers of all PERSONS who਍ഀ have knowledge of those facts;਍ഀ c. identify all DOCUMENTS and other tangible things which support your denial਍ഀ or affirmative defense, and state the name, ADDRESS, and telephone number of਍ഀ the PERSON who has each DOCUMENT.਍ഀ Interrogatory No. 7. Is your response to each request for admission served with these਍ഀ interrogatories an unqualified admission? If not, for each response that is not an unqualified਍ഀ admission:਍ഀ a. state the number of the request;਍ഀ b. state all facts upon which you base your response;਍ഀ c. state the names, ADDRESSES, and telephone numbers of all PERSONS who਍ഀ have knowledge of those facts;਍ഀ d. identify all DOCUMENTS and other tangible things that support your response਍ഀ and state the name, ADDRESS, and telephone number of the PERSON who has਍ഀ each DOCUMENT or thing.਍ഀ NON-PATTERN INTERROGATORIES਍ഀ Interrogatory No. 8. Identify anyone other than West Ridge (or its tenants) who use the਍ഀ Prescriptive Easement, including the dates of use, the route used, how long that route has been used਍ഀ for ingress and egress by the "others", and who maintains, plows, repairs, restores, and uses the਍ഀ access route used by the "others".਍ഀ Interrogatory No. 9. Identify any changes in the location and type of access for ingress਍ഀ and egress to Plaintiffs' Property since April 30, 2002, describe the change made, who made the਍ഀ change, why the change was made, and how long that change has remained in effect for ingress and਍ഀ egress to Plaintiffs' Property.਍ഀ Interrogatory No. 10. For each of the photographs or documents you have produced਍ഀ either in disclosures or in response to these requests, explain why that photograph or document਍ഀ supports your claim that the Prescriptive Easement does not include ingress and egress to Plaintiffs'਍ഀ Property.਍ഀ Interrogatory No. 11. Describe all conversations that you have had with any of the਍ഀ parties regarding the Incident. In your description, identify the date (including the day, month, year)਍ഀ of the conversation, the name of the individual with whom you spoke, and the subject matter of your਍ഀ conversations, if any.਍ഀ Interrogatory No. 12. Describe how use of the Prescriptive Easement for ingress and਍ഀ egress to Plaintiffs' Property expands the scope, burden, or purpose of the Prescriptive Easement.਍ഀ Interrogatory No. 13. Describe how you are damaged by use of the Prescriptive਍ഀ Easement for ingress and egress to Plaintiffs' Property.਍ഀ Interrogatory No. 14. Describe any encounters with individuals other than your family਍ഀ members that you have had since April 30, 2002 concerning any Incident. In your description,਍ഀ identify the date (include the day, month, and year) of the encounter, the name of the individual that਍ഀ you encountered, and the subject matter of your conversations, if any. Specifically describe any਍ഀ conversations that you had regarding use of any of the alleged easements.਍ഀ Interrogatory No. 15. Describe all conversations that you have had with any of the਍ഀ parties regarding the Incident. In your description, identify the date (including the day, month, year)਍ഀ of the conversation, the name of the individual with whom you spoke, and the subject matter of your਍ഀ conversations, if any.਍ഀ Interrogatory No. 16. Describe all conversations that you have had with the Town of਍ഀ Vail and its staff or employees concerning the Prescriptive Easement and/or access to Plaintiffs'਍ഀ Property, who it was with, and the date.਍ഀ IV. REQUESTS FOR PRODUCTION਍ഀ Request for Production No. 1. Produce all documents and electronically stored਍ഀ information that you referred to, relied upon, consulted, reviewed, or used in any way in਍ഀ responding to this set of discovery requests. Produce exact copies (i.e. bit-by-bit) of all਍ഀ electronically stored information in a digital format.਍ഀ Request for Production No. 2. Produce all applications, correspondence, communications,਍ഀ and reports submitted to the Town of Vail, its staff and/or employees that includes, discusses,਍ഀ involves, or concerns the property burdened by the Prescriptive Easement, including use of the਍ഀ Prescriptive Easement for access to Plaintiffs' Property, access to the West Ridge Property,਍ഀ parking at the West Ridge Property, and/or restoring the Prescriptive Easement to a driveway਍ഀ condition. Produce exact copies (i.e. bit-by-bit) of all electronically stored information in a਍ഀ digital format.਍ഀ Request for Production No. 3. Produce all correspondence related to your claim that਍ഀ Plaintiffs do not have a right to use the Prescriptive Easement. Include all correspondence to਍ഀ your family members, your lender(s), and any other individuals with whom you have਍ഀ communicated regarding the Prescriptive Easement. Produce exact copies (i.e. bit-by-bit) of all਍ഀ electronically stored information in a digital format. If you use Microsoft Outlook or Microsoft਍ഀ Outlook Express, produce all correspondence responsive to this request in a single pst file.਍ഀ Request for Production No. 4. Produce all evidence you relied on in the Prior Lawsuit to਍ഀ argue that others use the Prescriptive Easement. Produce exact copies (i.e. bit-by-bit) of all਍ഀ electronically stored information in a digital format. If you use Microsoft Outlook or Microsoft਍ഀ Outlook Express, produce all correspondence responsive to this request in a single pst file.਍ഀ V. REQUESTS FOR ADMISSION਍ഀ Request for Admission No. 1. Admit that the "others" referred to in the Judgment Entered਍ഀ in the Prior Lawsuit includes Plaintiffs and their predecessors in interest, tenants, guests, and਍ഀ invitees.਍ഀ Request for Admission No. 2. Admit that use of the Prescriptive Easement for access to਍ഀ Plaintiffs' Property does not expand the scope of the Prescriptive Easement.਍ഀ Request for Admission No. 3. Admit that use of the Prescriptive Easement for access to਍ഀ Plaintiffs' Property does not expand the purpose of the Prescriptive Easement.਍ഀ 10਍ഀ Request for Admission No. 4. Admit that use of the Prescriptive Easement for access to਍ഀ Plaintiffs' Property does not increase the burden of the Prescriptive Easement on the Egli-Smith਍ഀ Property.਍ഀ Request for Admission No. 5. Admit that you are not damaged by use of the Prescriptive਍ഀ Easement for access to Plaintiffs" Property.਍ഀ Request for Admission No. 6. Admit that the Prescriptive Easement is wide enough to਍ഀ provide 16.1' access to Plaintiffs' Property.਍ഀ Request for Admission No. 7. Admit that West Ridge and/or its predecessors in interest਍ഀ have been parking on the West Ridge Property in front of the West Ridge Condominiums since਍ഀ 1972 (the "Parking on the West Ridge Property").਍ഀ Request for Admission No. 8. Admit that the Parking on the West Ridge Property਍ഀ prevents access to Plaintiffs' Property across the West Ridge Property.਍ഀ Request for Admission No. 9. Admit that none of the documents listed in Paragraph 6 of਍ഀ the Second Amended Complaint create an express easement across the West Ridge Property.਍ഀ Request for Admission No. 10. Admit that West Ridge and its predecessors in interest have਍ഀ parked vehicles on Plaintiffs' Property since 1972.਍ഀ Request for Admission No. 11. Admit that the historic access to Plaintiffs' Property is਍ഀ accurately depicted on Exhibit A attached hereto and made a part hereof (the "Historic Access to਍ഀ Plaintiffs' Property").਍ഀ Request for Admission No. 12. Admit that the Historic Access to Plaintiffs' Property was਍ഀ across a gravel driveway.਍ഀ Request for Admission No. 13. Admit that the Historic Access to Plaintiffs' Property਍ഀ burdened more of the Egli-Smith and Quinn-Halloran Properties than the Prescriptive Easement਍ഀ burdens these properties.਍ഀ DATED this 18th day of May, 2009.਍ഀ Respectfully submitted,਍ഀ Original Signature on File਍ഀ Nancy Adam, #24445਍ഀ ATTORNEY FOR DEFENDANT,਍ഀ COUNTERCLAIM PLAINTIFF, and CROSS਍ഀ I1਍ഀ CLAIM PLAINTIFF WEST RIDGE਍ഀ CONDOMINIUM INVESTORS, LLC਍ഀ CERTIFICATE OF SERVICE਍ഀ The undersigned hereby certifies that the foregoing document was served this਍ഀ 18th day of May, 2009 via Lexis Nexis File & Serve on the following:਍ഀ James S. Bailey, Jr., Esq.਍ഀ Randall M. Livingston, Esq.਍ഀ Bailey & Peterson, P.C.਍ഀ 1660 Lincoln Street, Suite 3175਍ഀ Denver, CO 80264਍ഀ Original Signature on File਍ഀ Nancy Adam਍ഀ This document is e-filed via Lexis Nexis File & Serve. The printed copy of this document਍ഀ with original signatures is maintained in the offices of Nancy Adam, Esquire,਍ഀ pursuant to Rule 121, § 1-26 of theColorado Rules of Civil Procedure.਍ഀ 12਍ഀ Exhibit A to Initial Disclosures--Historic Access to Plaintiffs' Property਍ഀ i਍ഀ A਍ഀ i਍ഀ ~amQ I਍ഀ 0 r aa,e l~aasJ i਍ഀ 0 mm m mazy &MV QV FwZ mewr਍ഀ 1 ,਍ഀ do MWW Low a,਍ഀ Mme us~anvr r ,਍ഀ uXWr (t=) 1਍ഀ d! !਍ഀ £cv-9urn~ j oumw-rMt[arouv਍ഀ P਍ഀ M19Y COMM"WS਍ഀ OMEY PRLWERTY਍ഀ \ 1 DANTAS B(AYAERS AW.. !f਍ഀ 13਍ഀ West Ridge Staking਍ഀ Warren Campbell - West Ridge Staking਍ഀ From:਍ഀ Dominic Mauriello਍ഀ To:਍ഀ Warren Campbell਍ഀ Date:਍ഀ 5/22/2009 9:02 AM਍ഀ Subject:਍ഀ West Ridge Staking਍ഀ Hi Warren:਍ഀ Those other three stakes are the West Ridge property line and not the access easement.਍ഀ Dominic F. Mauriello, AICP਍ഀ Mauriello Planning Group, LLC਍ഀ PO Box 1127਍ഀ 5601A Wildridge Road਍ഀ Avon, Colorado 81620਍ഀ dorrinic@mpgvail.com਍ഀ 970-376-3318 cell਍ഀ Page 1 of 1਍ഀ file://CADocuments and Settings\Administrator\Local Settings\Temp\XPgrpwise\4A166... 06/22/2009਍ഀ