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Home My WebLink AboutMullally & Gardiner suit - Case #08-CV-217LOHF SHAIMAN JACOBS HYMAN & FEIGER PC ATTORNEYS AT LAW 900 CHERRY TOWER 950 SOUTH CHERRY STREET DENVER, COLORADO 80246-2666 FACSIMILE 303.753.9997 TELEPHONE 303.753.9000 www.lohfshaiman.com January 19, 2010 Town of Vail 75 South Frontage Road Vail, CO 81659 Att'n: Community Development Department Via First Class Mail and Facsimile: (970) 479-2452 Bob Narracci, Planning Manager Dan Stanek, Chief Building Official Eagle County 500 Broadway - Box 850 Eagle, CO 81631-0850 Via First Class Mail and Facsimile: 970-328-7185 Re: 288 Bridge Street; Part of Lot C and Lot D, Block 5A Vail Village Filing No. 1 (the "Rucksack Condominiums") Gentlemen: STEPHEN E. KAPNIK We represent Margo Mullally ["Mullally"], who as Trustee of the Martin J. Mullally Credit Trust and Yvonne Mullally Survivor's Trust, is the owner of Unit R-2 of the Rucksack Condominiums in Vail. We also represent William and Debora Gardiner [the "Gardeners"], the owners of Unit R-1 in the Rucksack Building. We are informed that Mr. Jeffrey Selby sometimes refers to this building as the "Bridge Street Building." We have also been informed that Mr. Selby, acting either in his individual capacity or in conjunction with Bridge Street Building, LLC, or as President of The Rucksack Condominiums, Inc. [the Rucksack Building's homeowner's association, or the "HOA"] has submitted or intends to submit a revise plat for the Rucksack Condominiums and related real property. Please be advised as follows: Mullally and the Gardiners have filed Civil Action 08-CV-217, now pending in the District Court for Eagle County, against Mr. Selby and Bridge Street Building, LLC [collectively, for convenience only, "Selby"]. Vail Community Development Department Bob Narracci Dan Stanek Re: Rucksack Building January 19, 2010 Page 2 2. A copy of the "Second Amended Complaint Including Supplemental Averments and Claims" [the "Complaint"] is attached for your information. Among the Claims in the Complaint are that (1) Selby, despite his nominal title as President and / or Director of the HOA, does not have the right to act on behalf of the HOA; (2) under the Rucksack Condomium Declaration and related documents, Selby does not have sufficient voting control to act on behalf of the Rucksack Condominiums or the HOA without approval of our clients; and (3) our clients are entitled to a declaration that Mr. Selby lacks authority to implement any redevelopment plans without our clients' consent and participation, and injunctive relief and damages. Trial in the case is scheduled for April 12, 2010. 4. Selby has not shared with, let alone received the approval or cooperation of our clients for his proposed replat or redevelopment plans. Accordingly, he does not have the authority to replat or redevelop the Rucksack Building. 5. Our clients object in the strongest terms to your consideration or approval of any such replat or redevelopment plan, or any further submission by Selby relative to remodeling, replatting, or redeveloping the Rucksack Building. Finally, inasmuch as our clients have never seen a copy of Selby's proposed replat or redevelopment plans, we hereby request on their behalf copies of any permits, plats, or redevelopment plans for the Rucksack Building submitted by Selby. Please fax [to 303.753.9997] or email [to skapnik@lohfshaiman.com] copies of same so that they will be aware of their contents. We will of course pay any costs associated therewith. Thank you for your anticipated cooperation. Please feel free to contact me with any questions. Very truly yours, Stephen E. Kapnik SEK/rs Enclosure cc: Clients (w/o enclosure) Randall Livingston, Esq. (w/o enclosure) IA.11.1-1) Doe UIII cIt l DISTRICT COURT (O Va'-le (unntN District (hurl n11131) EAGLE COUNTY, STATE OF COLORADO rili°; Date: Oct 6 2009 4:I011~1 %[I) I filin, ID: 7434302 855 Chambers Ave; P.O. Box 597 1(e, icN% ( lerk: Karen I rcdcrick Eagle, Colorado 81631 Plaintiffs: MARTIN J. MULLALLY CREDIT TRUST; YVONNE MULLALLY SURVIVORS TRUST; ♦ COURT USE ONLY WILLIAM A. GARDINER; DEBORA A. GARDINER; and THE RUCKSACK CONDOMINIUMS, INC. Defendants: Case Number: 08-CV-217 JEFFREY B. SELBY and BRIDGE STREET BUILDING LLC Div.: 2 Ctrm.: Attorney For Plaintiffs: Jeffrey A. Hyman # 1215 „'hyman(a2fohfshaiman.com Stephen E. Kapnik #7810 skapnik@lohfshaiman.com Lohf Shaiman Jacobs Hyman & Feiger PC 950 South Cherry Street, Suite 900 Denver, Colorado 80246 Phone No.: 303 753-9000 SECOND AMENDED COMPLAINT INCLUDING SUPPLEMENTAL AVERMENTS AND CLAIMS For their Second Amended Complaint Including Supplemental Averments and Claims, Plaintiffs Martin J. Mullally Credit Trust, Yvonne Mullally Survivors Trust, William A Gardiner, Debora A. Gardiner, and The Rucksack Condominiums, Inc. state and aver as follows: Parties and Venue 1. Plaintiffs Martin J. Mullally Credit Trust and Yvonne Mullally Survivors Trust (collectively, "Mullally") are two Colorado trusts whose address is 6030 Red Hill Road, Boulder, Colorado 80302. Margo Mullally and Yvonne Mullally are the Trustees of both Trusts. 2. Plaintiffs William A. Gardiner and Debora A. Gardiner (collectively, "Gardiner") are individuals whose address is 1300 Industrial Road, #21, San Carlos, California 94070. 3. Plaintiff The Rucksack Condominiums, Inc. (the "Association") is a Colorado non-profit corporation with an address of 1060 14th Street, Denver, Colorado 80202. The Association appears herein by and through Mullally and Gardiner, who are aggrieved homeowners, pursuant to Paragraph 6 of the Declaration described in Paragraph 7 below. To any extent the claims herein are derivative, no prior demand was made on the Association or Defendant Jeffrey B. Selby ("Mr. Selby") as its sole director with respect to the Association's claims as any such demand would have been futile. 4. Mr. Selby is an individual with an address of 1060 14`h Street, Denver, Colorado 80202. Mr. Selby is the President and sole Director of the Association. Upon information and belief, Mr. Selby is also the sole or majority owner in Bridge Street Building LLC. 5. Defendant, Bridge Street Building LLC ("Bridge Street"), is a Colorado limited liability company with an address of 1060 14th Street, Denver, Colorado 80202. Unless the context requires differently, Mr. Selby and Bridge Street collectively will be referred to herein as "Selby:" 6. Venue is proper in this court pursuant to C.R.C.P. 98(c). Background 7. The Condominium Declaration for the Association was recorded in the real property records of Eagle County, Colorado, on April 27, 1978 in Book 269 at Page 448, Reception No. 165834 (the "Declaration"). 8. The First Amendment to the Declaration was recorded on June 14, 1978 in Book 271 at Page 125, Reception No. 167521 (the "First Amendment"). 9. The Declaration establishes a condominium project having five units: Gardiner is the record owner of Unit R-1, Mullally is the record owner of Unit R-2, and Bridge Street is the record owner of Units C-1, C-2, and C-3. All units are located in what is commonly referred to as the Rucksack Building, located at 288 Bridge Street in the Town of Vail (the "Town"). The Association's members consist of all unit owners. 2 10, The public records of the Eagle County Assessor reflect the current square footages of the interior space of the each unit, which are set forth in the chart below. These square footages result in the corresponding ownership in the general common elements of the Rucksack Building. Unit Owner Sq. Ft. % R1 Gardiner, William A. and Debora A. 696 .0904 R2 Martin J. Mullally Credit Trust Yvonne Mullally Survivors Trust 1465 .1902 C 1 Bridge Street LLC 1116 .1449 C2 Bridge Street LLC 3019 .3921 C3 Bridge Street LLC 1413 .1835 TOTAL 7709 1.00% 11. Paragraph 15 of the Declaration provides that it may be amended only upon the written approval of the owners of 75% or more of the general common elements, and al l first lienors. 12. The First Amendment, together with Declaration Paragraph 12(b), provide that plans for renovation or restoration of the general common elements of the Rucksack Building may be approved only by owners of 80% or more of the general common elements, and all first lienors. 13. Paragraph 21 of the Declaration states: Reservations for Addition to R-2. A right is hereby reserved to any owner of condominium Unit R-2 to construct and expand his unit in an area adjacent to Unit R-2 and designated on the Map as "future construction." This reservation shall include the right to obtain and record an amended Map and Supplemental Declaration when the construction is completed. Such Supplemental Declaration shall reconvey and reattribute to each unit an undivided per centage interest in the common elements. The interest to be reconveyed and reattributed to each unit shall be expressed as a per centage determined by dividing the number of square feet contained in each unit by the total square feet of all units, which is presently 7,252 square feet, plus the number of square feet added to condominium Unit R-2. For the purpose of recomputing the undivided interest in common elements to be reconveyed and made attributable to the units, the owner of R-2 shall engage and architect licensed in Colorado to redetermine the undivided percentage interests in the common elements. 14. Pursuant to the authority granted in Paragraph 21 of the Declaration, Mullally constructed an addition to Unit R-2 in 1978, including an area (the "Crawl Space") below Unit R-2's two west side bedrooms. This area is included in the revised ownership amounts declared by Mullally pursuant to Paragraph 21 of the Declaration, and Mullally has paid tax on the addition and had sole and exclusive access to the addition, including the Crawl Space, since 1978. 15. In the summer of 2007, Selby presented to Mullally, Gardiner, and the Association plans for expansion of Units C-2 and C-3, and redevelopment of some of the exterior common elements of the Rucksack Building. Selby's proposed redevelopment was evidenced by plans prepared by Peak Land Consultants, Inc. dated June 29, 2007, and drawings prepared by Fritzlen + Pierce Architects (the "Original Plans"). 16. In a conference call on or about September 29, 2007, all Unit owners, and thus the Association, agreed that all of the owners (Selby, Mullally, and Gardiner) could expand their respective units subject to certain conditions. These conditions included, inter alia, that a. Selby could expand their units pursuant to the Original Plans, which, Selby represented, "would not impact either" Unit R-1 or R-2; b. Gardiner, the owner of Unit R-1, could expand their unit by up to 200 feet, subject only to review and approval by the Town of Vail; C. Mullally, the owner of Unit R-2, could expand their unit by up to 700 feet, subject only to review and approval by the Town of Vail; d. Selby, who intended to purchase the Burton Building, a property immediately to the north of the Rucksack Building, would cause the Burton Building and the Rucksack Building to be joined as one building, and be subject to a single homeowners' association. [On October 31, 2007, Bridge Street purchased the Burton Building]; e. Any further material change in the Original Plans would require additional approval by the Association; and f. Subsequent votes by members of the Association would thereafter be allocated on the basis of one vote per Unit, rather than on a square footage basis. Despite this procedural change in the methodology of counting votes, the effect of this change was to maintain the essential balance of power among the Association members - that is, any major change would still require the consent of either Mullally or Gardiner. 4 17. In disregard or defiance of the Rucksack Resolution, and without prior notice to Mullally or Gardiner, on or before October 1, 2007 Selby applied to the Town of Vail for a substantially different redevelopment of only his portion of the Rucksack Building, upon information and belief by identifying the Association as the applicant, and asserting that his building plans had been approved by the Association or Mullally and / or Gardiner. 18. Selby's application for a building permit for redevelopment of the Rucksack Building was materially false in that a. Unknown to Mullally or Gardiner, rather than applying to redevelop based on the Original Plans, which had been approved by Plaintiffs in or in connection with the Rucksack Resolution, Selby unilaterally and without notice to Mullally or Gardiner substituted in its application different plans (the "Altered Plans") for the partial redevelopment of the Rucksack Building. Selby never disclosed the Altered Plans to Mullally, Gardiner, or the Association, or obtained their approval of those plans, prior to submission of the Altered Plans to the Town. b. On information and belief, in communications with the Town at or near the time the Altered Plans were submitted, Selby falsely represented that Mullally and Gardiner and/or the Association had approved the Altered Plans, and that Selby was authorized by the Association to submit the Altered Plans to the Town and proceed in redeveloping its units in the Rucksack Building based on the Altered Plans. C. In fact, the Altered Plans violate the Declaration and the Rucksack Resolution and constitute a plan of redevelopment which was never approved by Mullally, Gardiner, or the Association in several respects. To the detriment of Mullally and Gardiner, they i. represent an unauthorized increase in the number of Units, ii. represent an unauthorized increase in the square footage of the Rucksack Building, iii. represent an unauthorized increase in the square footage of Selby's units, iv. hinder and impede Mullally and Gardiner's rights to their co-equal use of the general common elements, v. hinder and impede Mullally and Gardiner's rights to possess, use, and redevelop their individual units, even pursuant to the approved expansion of their respective Units reflected in the Rucksack Resolution, vi. allow Selby to convert space in Mullally's unit to its own use; vii. allow Selby to convert the Association's common area space to its own use; viii. effectively vested voting control of the Association solely in Selby. d. The Altered Plans constitute a plan of redevelopment and require an amendment to the Declaration. Without the approval of either Mullally or Gardiner, and Mullally's first lienor, Selby simply do not and did not have the requisite votes to approve a plan of redevelopment or an amendment to the Declaration. e. Unknown to Mullally and Gardiner, rather than seeking to redevelop based on the Approved Plans and the Rucksack Resolution, Selby unilaterally and without notice to or approval by Mullally or Gardiner submitted to the Town a different, unapproved, unauthorized, and unsigned resolution ("Selby's Resolution"). Among other provisions, Selby's Resolution did not contain the following conditions of the Rucksack Resolution: i. authority for Mullally and Gardiner to increase the dimensions of their respective units by the agreed amounts; ii. a requirement that Selby would cause the Burton Building and the Rucksack Building to be joined as one building, subject to a single homeowners' association; and iii. a provision that any further material change in the Original Plans would require additional approval by the Association. 19. Implementation of the Altered Plans by Selby directly and adversely causes damage to Plaintiffs, including, but not limited to, a. permitting expansion of Bridge Street's units in a manner which trespasses upon and converts space in Mullally's unit; b, permitting expansion of Bridge Street's units in a manner which blocks expansion of Mullally's unit, c. permitting expansion of Bridge Street's units in a manner - specifically by installation of a Chiller utilized only for the benefit of Selby's units, and by confiscation of all or part of a balcony which confiscated and converted some of the Rucksack Building's common elements and property, and interferes with Mullally's and Gardiner's use and quiet enjoyment of their units and the Rucksack Building's common elements; d. blocking the ability of Mullally and Gardiner to construct elevator access to their units, e. relocating the Rucksack Building's garbage facilities directly adjacent to the principal access to Mullally's and Gardiner's - but not Selby's Units, 6 f. interfering with scenic views and enjoyment of other natural elements from the Mullally and Gardiner units, g. denying access by Mullally and Gardiner to some of the Rucksack Building's common elements, and h. denying access by Mullally and Gardiner to and use of their own units for a period, which through the date of this Second Amended Complaint, exceeded seven months. 20. Neither Selby nor the Town provided notices to Mullally or Gardiner of Town hearings and meetings at which the Town considered the Altered Plans. Mullally and Gardiner were unaware that the Altered Plans had been submitted or were advancing until 2008. 21. On or about March 21, 2008, Selby, as President of the Association, purported to schedule and notice a meeting of members of the Association for April 5, 2008. 22. Proper notice of the proposed meeting on April 5, 2008 was not given. Mullally and Gardiner did not attend the meeting. 23. Upon information and belief, Bridge Street, represented by Mr. Selby, was the only Association member present at the purported meeting of April 5, 2008. At that time, Selby purported to (a) cause the Association to elect to accept for the Association the provisions of the Colorado Common Interest Ownership Act (CCIOA), (b) adopt an Amended and Restated Declaration, (c) adopt Amended and Restated Articles of Incorporation, and (d) adopt Amended Bylaws. 24. The Amended and Restated Declaration purports to increase the number of units in the Association, and authorize Selby to prepare and file an Amended Condominium Map, to implement the improvements contemplated by Selby's Altered Plans. 25. Selby did not have the requisite number of votes in the Association to adopt any Amended and Restated Declaration, or authorize a plan of redevelopment of the general common elements of the Rucksack Building. 26. Mullally and Gardiner did not, and do not, approve of the actions or documents taken by Selby and Bridge Street at the April 5 meeting. 27. Accordingly, those actions, and particularly the election to accept CCIOA, adopt an Amended and Restated Declaration, Amended and Restated Articles of Incorporation, and Amended Bylaws, are void. First Claim for Relief (Declaratory Judgment) 28. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1 through 27 above as though fully set forth herein. 29. Plaintiffs are persons interested under the Declaration, Articles, and Bylaws of the Association, and the Rucksack Resolution and Selby's Resolution, and are affected by applications filed with, and the ordinances of and permits issued by the Town with respect to the Rucksack Building. Plaintiffs are therefore interested persons pursuant to the Declaratory Judgment Act, C.R.S. §13-51-106 and C.R.C.P. §57(b). 30. Pursuant to C.R.S.§13-51-106 and C.R.C.P. 57, Plaintiffs are entitled to a judgment declaring that (a) Mr. Selby and Bridge Street, in their own names or in the name of the Association, were without authority to submit the Selby Resolution and Altered Plans to the Town, and that such submission was therefore ultra vires, (b) Selby's Resolution is void ab initio, its submission to the town was fraudulent, and all applications and approvals based thereon permitting Selby to proceed with the Altered Plans were void, (c) Bridge Street, as the owner of Units C-1, C-2, and C-3, does not have the requisite votes in the Association to unilaterally adopt any amendment to the Declaration or any plan of redevelopment of the common elements, (d) the notice of the meeting purportedly called by Selby for April 5, 2008 was void, and (e) all actions taken at the purported Association meeting of April 5, 2008 were unauthorized and are nullities. WHEREFORE, Plaintiffs demand judgment as set forth below. Second Claim for Relief (Breach of Fiduciary Duty) 31. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1 through 30 above as though fully set forth herein. 32. Mr. Selby, as the President and sole director of the Association, occupies a fiduciary relationship and owes fiduciary duties to the Association and to Mullally and Gardiner. 33. As a fiduciary, Selby has a duty to deal with the Association, Mullally, and Gardiner with the utmost good faith and solely for the benefit of the Association and its unit owners. 34. In taking the actions and making the omissions described in this complaint, Mr. Selby acted solely in his own self-interest and to the detriment of the rights and property of the Association, Mullally, and Gardiner. 35. Selby has breached his fiduciary duties to Mullally, Gardiner, and the Association. 36. Breaches by Selby of his fiduciary duties have caused damage to the Association, Mullally, and Gardiner in an amount to be proven at trial. WHEREFORE, Plaintiffs demand judgment as set forth below. Third Claim for Relief (Fraud) 37. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1 through 36 above as though fully set forth herein. 38. Selby's building permit application and plans for redevelopment submitted to the Town were fraudulent - among other things, in that (1) Selby did not obtain the requisite approvals of Mullally or Gardiner, or of the Association, (2) Selby did not obtain the requisite approvals of Mullally's first lienor with an interest in the property; (3) the Altered Plans were never approved by Mullally or Gardiner or the Association, and (4) Selby's Resolution was never approved by Mullally or Gardiner or the Association. 39. Mullally and Gardiner and the Association and the Town had the right to rely on Selby's not submitting false and fraudulent building permit applications and resolutions, because of the duties imposed by Selby under the Association and Rucksack Building documents and Colorado law, specifically the provisions of C.R.S. § 18-5-114 and C.R.S. § 15-5-206. 40. Selby's having submitted an invalid and fraudulent building permit application and redevelopment plans, based on Selby's Resolution, which itself is fraudulent, to the Town, and commencing construction based on fraudulently obtained approvals, caused injury to Mullally and Gardiner and or the Association. 41. Mullally and Gardiner and the Association Plaintiffs reserve the right to amend this pleading at the appropriate time pursuant to the provisions of C.R.S. § 13-21-102(1.5)(a) to seek exemplary damages in connection with Selby's fraud. WHEREFORE, Plaintiffs demand judgment as set forth below. Fourth Claim for Relief (Promissory Estoppel) 42. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1 through 41 above as though fully set forth herein. 9 43. Selby promised Mullally and Gardiner that his plans and redevelopment would, among other things, (a) allow for expansion of Mullally's and Gardiner's units, (b) not affect the general location of the trash facilities for the Rucksack Building, (c) permit construction of an elevator to serve the Mullally and Gardiner units, and (d) "not impact either" their units. 44. Selby should have reasonably expected that these promises would induce action or forbearance by Mullally and or Gardiner. 45. Plaintiffs have reasonably relied on Selby's promises, in part by forbearing to take earlier action. 46. Selby's promises must be enforced to prevent injustice. 47. Selby's breach of his promises has resulted in damages to Mullally and Gardiner and the Association in an amount to be proven at trial. WHEREFORE, Plaintiffs demand judgment as set forth below. Fifth Claim for Relief (Breach of Contract) 48. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1 through 47 above as though fully set forth herein. 49. The Declaration and the Rucksack Resolution are contracts by which the unit owners agree to conform their conduct with respect to operation of the Association and the Rucksack Building. 50. Selby has breached its contractual obligations to Plaintiffs by, among other things, submitting plans to the Town which (a) were contrary to the Declaration and condominium map, (b) not approved by the requisite vote of the members of the Association, (c) interfered with the rights of Mullally and Gardiner to use of the general common elements and their own units, and (d) barred the expansion and improvement of units owned by Mullally and Gardiner, for the sole benefit of units owned by Selby. 51. Selby has breached its contract with Plaintiffs, including the covenant of good faith and fair dealing which is inherent therein. 52. Selby's breach of contract has resulted in damages to Plaintiffs in an amount to be proven at trial. 53. Selby's actions and omissions have caused Mullally (and its trustees] and Gardiner to incur damages, including severe emotional distress. WHEREFORE, Plaintiffs demand judgment as set forth below. 10 Sixth Claim for Relief (Trespass) 54. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1 through 53 above as though fully set forth herein. 55. Contrary to Mr. Selby's promises, Selby's redevelopment has had a negative impact upon Mullally's and Gardiner's ownership of their respective units. 56. Without permission or authorization Selby has destroyed the Crawl Space that belongs to Mullally and built an expansion of one of Selby's units in its place. 57. Without permission or authorization Selby has confiscated Association common elements and space, including parts of the second story balcony, all or nearly all available "footprint" space allowed by the Town of Vail for expansion, and Association space under the Gardiner unit, and installed thereon a Cooler which services only Selby's units. 58. Despite demand, and without right, title, or interest, Selby continues to possess and control the Crawl Space. 59. Despite demand, and without right, title, or interest, Selby continues to possess and control the Association's common space, including the second story balcony and the common space under the Gardiner unit on which the Cooler is installed, and operate the Cooler thereon. 60. Selby's installation and use of the Cooler creates an aural and olfactory, malodorous trespass onto Association common elements and the Gardiner and Mullally units, and continues to trespass upon such property. 61. Selby has trespassed upon and converted Mullally's real property, and continues to trespass upon such property. 62. Selby has converted the Association's common areas. 63. Mullally's unit, including the Crawl Space, the Gardiner unit, and Association common space are unique and irreplaceable property. 64. Misappropriation of Plaintiffs' property has damaged Plaintiffs in an amount to be proven at trial. 65. Plaintiffs' rights, titles, and interests to, and ability to possess and use their respective property, including the Mullally Crawl Space, the Gardiner unit, and the Association common space are violated and in effect destroyed by Selby's having redeveloped its units in accordance with the Altered Plans. 11 66. Absent injunctive or other similar relief returning the Crawl Space to its original condition and to the possession of their rightful owners, and removing the encroachments, including the Chiller, from common space, Plaintiffs have no ability to protect their interests in their property. WHEREFORE, Plaintiffs demand judgment as set forth below. Seventh Claim for Relief (Injunction) 67. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1 through 66 above as though fully set forth herein. 68. The units owned by Mullally and Gardiner and the Rucksack Building constitute unique pieces of real property located in the heart of Vail Village. These units, and their development potential, views, natural sounds, and amenities cannot be duplicated. 69. Irreparable harm will result unless an injunction is issued preventing Selby from completing construction based upon Selby's Resolution and the Altered Plans, and/or preventing the Town from issuing permits necessary for the Altered Plan to go forward, and, to the extent such construction has been completed, removing or modifying the Selby construction, or returning the property to its condition status quo ante. 70. The injury which would be caused to Mullally and Gardiner outweigh the harm that the injunction may cause to Selby. 71. If issued, an injunction prohibiting Selby from completing construction based upon Selby's Resolution and the Altered Plans, or returning the property to its condition status quo ante, or modifying it in ways to eliminate and compensate Plaintiffs for the harm to Plaintiffs, would not adversely affect the public interest. WHEREFORE, Plaintiffs demand judgment as set forth below. Demand for Judgment WHEREFORE, Plaintiffs respectfully request that judgment be entered in their favor and against Defendants as follows: A. On Plaintiffs' First Claim for Relief, for the declaratory judgment against Mr. Selby and Bridge Street which is described above; B. On Plaintiffs' Second Claim for Relief (breach of fiduciary duty), for damages against Mr. Selby in an amount to be proven at trial; 12 C. On Plaintiffs' Third (fraud), Fourth (promissory estoppel), Fifth (breach of contract), and Sixth (trespass) Claims for Relief, for damages against Mr. Selby and/or Bridge Street, jointly and severally, in an amount to be proven at trial; D. On Plaintiffs' Seventh Claim for Relief, for temporary and permanent injunctive relief against Mr. Selby and Bridge Street, prohibiting them from commencing or continuing construction pursuant to the Altered Plans, and, to the extent the same are completed, to modify same to eliminate the harm to Plaintiffs or to restore the property to its condition status quo ante. E. For attorneys' fees and costs incurred in the bringing and maintaining of this action; and F. For such other and further relief as this Court deems just and appropriate. Dated October 6, 2009. LOHF SHAIMAN JACOBS HYMAN & FEIGER PC /s/ Stephen E. Kapnik- By: Stephen E. Kapnik Attorneys for Plaintiffs In accordance with C.R.C.P. 121 §1-26(9) a printed copy of this document with original signatures is being maintained by the filing party and will be made available for inspection by other parties or the court upon request. CERTIFICATE OF SERVICE This is to certify that on October 6, 2009, the undersigned has electronically served a true and correct copy of the foregoing SECOND AMENDED COMPLAINT INCLUDING SUPPLEMENTAL AVERMENTS AND CLAIMS upon the following parties addressed to the following: James S. Bailey, Jr., Esq. Randall M. Livingston, Esq. Bailey & Peterson, P.C. 1660 Lincoln Street #3175 Denver, Colorado 80264 /s/ Rita Sanders Rita Sanders, Paralegal 13