Wyle v. Skiwatch Condominium, 10th Cir. (2006)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
FO R TH E TENTH CIRCUIT
June 9, 2006
Elisabeth A. Shumaker
Clerk of Court
M ITCH ELL LELAND W YLE,

Plaintiff-Appellant,
v.
SK IW A T CH CO N D O MIN IU M
C ORPO RA TIO N , A CO LO RA DO
CORPORATION; SKIW ATCH
C ON D O M IN IU M A SSO CIA TION;
ERIC A ND RU TH ODEN S;
A N D RO M A N A N D O LH A
N O W A KIWSK Y ,
No. 04-1545
(D.C. No. 02-B-729 (CBS))
(D . Colo.)
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Plaintiff M itchell Leland W yle, an attorney proceeding pro se, appeals from
the district courts order granting defendants summary judgment motions and
denying M r. W yles motions for summary judgment and judgment on the
pleadings. W e have jurisdiction under 28 U.S.C. 1291 and affirm.
The district court detailed the facts of this case and we restate them here
only as is necessary to our disposition. On April 15, 2000, a fire broke out in an
electrical closet at the Skiwatch condominium complex in Breckenridge,
Colorado. 1 At that time, M r. W yle was sleeping in a Skiwatch condominium he
had rented for his vacation in Breckenridge. He allegedly suffered various
injuries as a result of the fire. Invoking diversity jurisdiction, M r. W yle filed suit
for negligence and breach of contract against the Skiwatch Condominium
Corporation and Skiwatch Condominium Association (Skiwatch), Eric and Ruth
Odens, and Roman and Olha Nowakiwsky.
The district court concluded that Colorados premises liability statute,
Colo. Rev. Stat. 13-21-115, is the exclusive remedy against a landowner in
Colorado for injuries occurring on the landowners property. Finding each of the
defendants to be landowners, the district court next concluded that M r. W yles
breach-of-contract claim is obviated by the exclusivity of the premises-liability
statute. Aplees. Jt. Supp. App. at 11. After thoroughly considering the
1
W e note that the district court made a typographical error in the order
appealed from when it, on several occasions, stated the fire occurred on
April 11, 2000.
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evidence, the district court granted defendants summary judgment motions,

holding that M r. W yle failed to demonstrate a material factual controversy existed
regarding defendants alleged knowledge of the condition of the electrical system
that resulted in the fire. The district court also denied M r. W yles Fed. R. Civ. P.
12(c) motion for judgment on the pleadings as to defendants Eric and Ruth Odens.
This appeal followed.
Colorados substantive tort law governs this diversity action, but we follow
federal law in determining the propriety of the district courts grant of summary
judgment. Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016 (10th Cir. 2001).
Summary judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Id.;
Fed. R. Civ. P. 56(c). W here, as here, the district court ruled on cross-motions
for summary judgment, we review its order de novo, constru[ing] all factual
inferences in favor of the party against whom summary judgment was obtained.
NISH v. Rumsfeld, 348 F.3d 1263, 1266 (10th Cir. 2003). W e also review
de novo the district courts denial of a Rule 12(c) motion, accepting all
well-pleaded allegations in the complaint as true, and construing them in the light
most favorable to the plaintiff. Ram irez v. Dept of Corr., 222 F.3d 1238, 1240
(10th Cir. 2000).
M r. W yle identifies five issues on appeal. First, he contends Vigil v.
Franklin, 103 P.3d 322 (Colo. 2004), precludes the entry of summary judgment in
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premises liability cases. W e disagree. Contrary to M r. W yles position, we do

not think the Colorado Supreme Court eliminated or intended to eliminate
summary judgment practice by stating in Vigil, the only issue of law to be
determined by the court [under 13-21-115] is the classification of the injured
plaintiff; liability and damages are questions of fact to be determined by the
finder of fact, 103 P.3d at 328. Indeed, since Vigil, the Colorado Court of
Appeals has affirmed the entry of summary judgment in at least one premises
liability case. Wilson v. M archiondo, 124 P.3d 837, 841-42 (Colo. Ct. App. 2005)
(holding landlord who lacked actual knowledge of dogs allegedly vicious nature,
prior to entering into lease agreement, owed victim of dog bite no duty of care
under premises liability statute), cert. denied, 2005 W L 3764931 (Colo. Dec. 19,
2005).
Second, M r. W yle takes issue with the district courts dismissal of his
breach-of-contract claim. He asserts the court erroneously: found no
contract existed, held Colorados premises liability statute precluded
breach-of-contract actions, and failed to grant M r. W yle summary judgment on
his breach-of-contract claim. M r. W yles breach-of-contract arguments are
misplaced. W hether a contract existed and whether a defendant or defendants
breached that contract (if one existed) is immaterial becauseas the district court
correctly concludedColorados premises liability statute provides the exclusive
remedy against a landowner for injuries sustained on the landowners property.
-4-
Vigil, 103 P.3d at 331; see Wilson, 124 P.3d at 842 ([b]ecause the premises
liability statute is the exclusive remedy under which plaintiffs may recover, we
need not address plaintiffs other theories of liability strict liability and civil
conspiracy); Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538,
540-41 (Colo. Ct. App. 2005) (observing exclusivity of premises liability statute
and affirming dismissal of plaintiffs claims for breach of contract and negligent
breach of contract), cert. denied, 2005 W L 2181649 (Colo. Sept. 12, 2005).
Third, M r. W yle asserts the district court erroneously ignored his proof
that the defendants had both actual and constructive knowledge of the dangers to
which they were subjecting their tenants. Aplt. Opening Br. at 32. W e are not
persuaded. Having carefully considered the briefs, the record, and the applicable
law , we concur with the district courts conclusion that
no reasonable jury could find [the defendants] had actual or
constructive knowledge of the condition of the electrical system
generally, or of the electrical box with the smashed copper pipe in
place of a fuse that resulted in the April 15, 2000 fire . . . .
Consequently, [they] could not be found to have breached any duty
to use reasonable care to protect against such a danger.
Aplees. Jt. Supp. App. at 14-15.
Fourth, M r. W yle asserts the district court erroneously denied his Rule
12(c) motion for judgment on the pleadings because the Odens did not respond to
his summary judgment motion within 20 days, as required by D. Colo. Civ. R.
-5-
56.1(A). 2 In M r. W yles view, the Odenss failure to respond obligated the

district court to grant his Rule 12(c) motion. M r. W yle is mistaken. A partys
failure to respond to a summary judgment motion is not a legally sufficient basis
on which to enter judgment against that party. Reed v. Bennett, 312 F.3d 1190,
1194 (10th Cir. 2002). The district court must also examine the moving partys
submission to determine if it has met its initial burden of demonstrating that no
material issues of fact remain for trial and the moving party is entitled to
judgment as a matter of law. Id. at 1195. In this case, M r. W yle did not meet
his initial burden; accordingly, judgment in his favor was not appropriate and w e
therefore see no error in the district courts denial of M r. W yles Rule 12(c)
motion. See id.
Lastly, M r. W yle argues the district court judge should have disqualified
himself pursuant to 28 U.S.C. 455. M r. W yle also suggests the district court
judges adverse appearances inextricably attach to the magistrate judge, and he
too should have disqualified himself. Aplt. Opening Br. at 51. Based on our
review of the record, however, there is no merit to M r. W yles judicial partiality
argument.
M r. W yle also contends the Odens were at fault for not timely responding
to his Rule 12(c) motion. But, significantly, the district court in this case entered
judgment for defendants before the Odenss response to M r. W yles Rule 12(c)
motion was even due.
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The judgment of the district court is AFFIRM ED. All pending motions are
D EN IED .
Entered for the Court
John C. Porfilio
Circuit Judge
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F I L E D

United States Court of Appeals

M ITCH ELL LELAND W YLE,

OR D ER AND JUDGM ENT *

Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.

evidence, the district court granted defendants summary judgment motions,

premises liability cases. W e disagree. Contrary to M r. W yles position, we do

56.1(A). 2 In M r. W yles view, the Odenss failure to respond obligated the

Entered for the Court

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