## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 23 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

TOM REYNOLDS; DEBBIE REYNOLDS, individually and doing business as Energy Plus Corp.,

Plaintiffs-Appellants,

v. QUARTER CIRCLE M RANCH, INC.; MUELLER RANCH HOMEOWNERS ASSOCIATION, INC., a Colorado Nonprofit Corporation; RANDY WITTE, Director, President of Mueller Ranch Homeowners Association, Inc.; POLLY MUNSON, Director, Member of the Architecture Control Committee of Mueller Ranch Homeowners Association, Inc.; PAT JAHNER, Director and Secretary of Mueller Ranch Homeowners Association, Inc.; MARSHA WITTE, Treasurer of Mueller Ranch Homeowners Association, Inc.; PHRED JAHNER, Member of the Architecture Control Committee of Mueller Ranch Homeowners Association, Inc.; ELLEN CORDIONIERE, Member of the Architecture Control Committee of Mueller Ranch Homeowners Association, Inc.; WILLIAM A. MUNSON, Member of the Architecture Control Committee of Mueller Ranch Homeowners Associations, Inc.; JOHN A. No. 01-1094 (D.C. No. 00-K-2460) (D. Colo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- McKNIGHT, Member of the Architecture Control Committee of Mueller Ranch Homeowners Association, Inc.,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before HENRY, ANDERSON, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiffs Tom and Debbie Reynolds, an interracial married couple, and Energy Plus Inc., their privately-held business ent ity (the Reynolds), are owners of a parcel of land in the Mueller Ranch, a covenan t-controlled residential subdivision in rural El Paso County, Colorado. The y instituted this action against defendants, who are all associated with the MuellerRanch Homeowners1 Plaintiffs also asserted state claims of negligence and breach of contract.

From their filings in this court, it appears that t hey are appealing only the dismissal of a their discrimination-based claims.

2 The factual record in this case is undeveloped. Atthe time of the district court’s dismissal ruling, the case file contained p laintiffs’ complaint and a trial brief (submitted by all defendants except Pat and P hred Jahner), to which portions of the state-court record was attached as an exhibi t. -3- Association, Inc. (the Homeowners Association), all eging racial discrimination in violation of the Fair Housing Act of 1968, 42 U.S.C . §§ 3601-3631; the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982; the Co lorado Fair Housing Act, Colo. Rev. Stat. § 24-34-501 to 509. 1 The district court granted the defendants’ motion to dismiss, holding that it lacked jurisdict ion to proceed because the judgment entered in a prior state lawsuit, filed bythe Homeowners Association, barred the present action. We reverse the decision of the district court.

BACKGROUND 2 The Reynolds entered into an agreement to purchase site #6 in the Mueller Ranch on July 14, 1998. Mueller Ranch covenants re quire that plans and specifications must be submitted to and approved inwriting by the Architecture Control Committee (ACC) of the Homeowners Associati on before construction begins. By December 1999, however, the Reynolds ha d made improvements to their lot without ACC approval. From December 1999 through February 2000,3 The Reynolds’ untimely answer is not included in th e record on appeal and,

evidently, was not before the district court. In the state court’s order denying defendants’ motion for relief under Colo. R. Civ. P . 60(b), however, the court described the “purported Answer [as] merely a gener al denial of the allegations in the Complaint [which] sets out no claim of any meri torious defense.” Appellants’ App. at 65. -4- the Reynolds submitted plans to the ACC and the ACC rejected them as inadequate and incomplete. On March 27, 2000, the Homeowners Association fileda complaint in state court, requesting a mandatory injunction requiring the removal of material or structures installed on the Reynolds’ property and enjoining any further construction prior to the ACC’s written approval of plans. The Homeowners Association also sought an award of costs, includin g attorneys’ fees, pursuant to the Mueller Ranch covenants. After entry of a cler k’s default, the Reynolds filed a belated answer, generally denying the allegations in the complaint. 3 On May 19, 2000, the state court found that the Rey nolds had been properly served with process, that they demonstrated no justcause to set aside the clerk’s default, that they had been given repeated warnings concerning the requirements of the covenants, and that they had violated these requirements. It therefore entered default judgment in favor of the Homeowners Association. Additionally, the court determined that the Homeowners Associatio n was entitled to a permanent injunction enjoining the Reynolds from fu rther construction on their-5-

property and requiring restoration of the property to its pre-construction condition. The court, however, essentially stayed the effective date of its order by setting deadlines for the Reynolds’ submission of p lans, for the Homeowners Association’s action on the plans, and for the Reyn olds’ resort to the court for injunctive relief if their plans were rejected. Th e court also awarded costs and attorneys’ fees to the Homeowners Association. On August 23, a new attorney entered an appearance for the Reynolds, requested a status conference, and asked for injunc tive relief. In this filing, the attorney raised the first suggestion of discriminat ion. She maintained that her clients had been “left in an untenable and unequita ble position because of the events of this case and the ongoing disdainful and discriminatory actions of Plaintiff against Defendants concerning the improve ment of their property.” Appellants’ App. at 60. The court denied the Reyno lds’ motions, stating that “[t]his matter has been concluded, and judgment has been entered against Defendants.” Id. at 62. In subsequent orders, the court denied t he Reynolds’ motion for relief from judgment under Colo. R. Civ. P. 60(b) and entered an order finding the Reynolds in contempt of court for faili ng to restore the property. Outside of court, the dispute between the Reynolds and the Homeowners Association continued. The Reynolds allege that, d uring the post-judgment period, they were intimidated and their property wa s vandalized. On4 Originally, the hearing was set on the Reynolds’ mo tion for a temporary

restraining order, but the district court first hea rd argument on the Homeowners Association’s jurisdictional challenge. The Reynol ds’ motion (which is not included in the appendices filed by the appellants and appellees) apparently requested a stay of a state foreclosure action. Be cause the district court determined it had no jurisdiction over any matter r aised in the Reynolds’ complaint, it did not reach the merits of the motio n. The court, however, made an appropriate reference to 28 U.S.C. § 2283, which pr ovides that a federal court may not stay proceedings in a state court “except a s expressly authorized by Act of Congress, or where necessary in aid of its juris diction, or to protect or effectuate its judgments.”

5 The parties agree that state and federal courts sha re concurrent jurisdiction over the Reynolds’ federal discrimination claims. See 42 U.S.C. § 3613(a)(1)(A) (allowing an aggrieved person to bring a Fair Housi ng Act claim in either federal district court or state court); Gonzales v. Hernandez , 175 F.3d 1202, 1206 (10th Cir. 1999) (discussing concurrent jurisdiction over§ 1981 and § 1983 claims). -6- November 21, 2000, the Reynolds sent a final set of plans to the ACC and, ten days later, the ACC again determined that the plans were incomplete and inadequate. Shortly afterwards, the Reynolds filed this discrim ination action in federal district court, seeking damages and asking for inju nctive relief. At a hearing held January 17, 2001, counsel for the Homeowners Associ ation argued that the state-court lawsuit had stripped the district courtof jurisdiction over the Reynolds’ complaint because the discrimination clai ms could have been advanced as counterclaims. 4 Counsel asserted that the allegations in the subs titute attorney’s entry of appearance made it “abundantly clear” that the discrimination theory “had ripened while the state court matter was proceeding.” Id. at 85. 5-7-

The district court accepted the Homeowners Associat ion’s argument. The court determined that, through operation of the doc trine of res judicata, it lacked jurisdiction over the Reynolds’ claims. It therefo re dismissed the case with prejudice and later denied the Reynolds’ motion forrelief under Fed. R. Civ. P. 60(b).
DISCUSSION We review de novo the district court’s determinatio n that the doctrine of res judicata barred plaintiffs’ claims. See Fox v. Maulding , 112 F.3d 453, 457 (10th Cir. 1997). “Federal courts must give to state court judgments ‘the same full faith and credit . . . as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.’” Id . at 456 (quoting 28 U.S.C. § 1738). Therefore, we look to the law of Colorado to determine the preclusive effect to be given the judgment entered in the state foreclosure action. Id. Under Colorado law, “subsequent actions” are barred“when [an] initial proceeding produces a final judgment, and when identity of subject matter, identity of claims for relief, and identity of part ies exist as to both claims.” Eason v. Bd. of County Comm’rs , 961 P.2d 537, 539 (Colo. Ct. App. 1997). Res judicata “not only bars issues actually decided , but also any issues that should have been raised in the first proceeding, but were not.” Id. Nevertheless,-8-

“[u]nless compulsory counterclaim rules apply, . . . purely defensive use of a legal theory does not preclude a later action for affirmative recovery on the same theory.” Id. Colorado’s compulsory counterclaim rule, Colo. R. Civ. P. 13(a), like its federal counterpart, “requires an answer t o a complaint to include any counterclaims that the pleader has against the opposing party at the time of filing , if such counterclaims arise out of the same transac tion or occurrence as the opposing party's claim.” Id. (emphasis added). See also Arch Mineral Corp. v. Lujan , 911 F.2d 408, 412 (10th Cir. 1990) (stating that, under Fed. R. Civ. P. 13(a), “[w]here a defendant acquires a claim after his answer has been filed it is not a compulsory counterclaim even if it arises outof the same transaction”). The Homeowners Association may be correct in assert ing that the Reynolds’ discrimination claims arose out of same transaction or occurrence as the matters raised in the prior state-court action. Res judicata bars the pursuit of these claims, however, only if they could have been maintained at the time when the Reynolds filed their answer in state court. Ev en under the Homeowners Association’s view of the case, the issues of discr imination described by the plaintiffs did not arise until after the entry of j udgment, when the state court considered the case “concluded.” Appellant’s App. at 62. The record before the district court did not establ ish a res judicata bar of the Reynolds’ discrimination claims. Although we m ake no comment on the-9-

ultimate merit of these claims, we conclude that th e district court erred in dismissing the action for lack of jurisdiction. We REVERSE the district court’s order of dismissal and remand for further proceedin gs consistent with this order and judgment.

Entered for the Court

Stephen H. Anderson Circuit Judge