SUMMARY

March 21, 2019

2019COA45

No. 17CA2260, Rinker v. Colina-Lee — Real Property —

Easements; Remedies — Injunctive Relief

This is the first case in Colorado, and one of the few in the 

United States, that addresses whether a court must find irreparable 

harm prior to entering an injunction to enforce an easement. The 

opinion adopts the position set forth in section 1.2(1) of the 

Restatement (Third) of Property: Servitudes (Am. Law Inst. 2000)

that a finding of irreparable harm is not a prerequisite for entering 

an injunction to protect an easement.

The decision also addresses two other important issues: (1) 

whether an unincorporated association is a necessary party in a 

case involving interpretation of its “founding document” and (2) 

whether an appellant preserves an issue for appeal where the trial 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
court did not give the appellant an opportunity to be heard on the 

matter. 

A division of the court of appeals affirms the holding of the 

district court. 
COLORADO COURT OF APPEALS 2019COA45

Court of Appeals No. 17CA2260

Larimer County District Court No. 15CV30862

Honorable Stephen J. Jouard, Judge

George Rinker,

Plaintiff-Appellant,

v.

Lori Rose Colina-Lee,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE LIPINSKY

Dailey and Furman, JJ., concur

Announced March 21, 2019

Herms Herrera LLC, Jeffrey B. Cullers, Fort Collins, Colorado, for PlaintiffAppellant

Fischer Brown Bartlett Gunn P.C., Todd W. Rogers, Fort Collins, Colorado, for 

Defendant-Appellee
1

¶ 1 Plaintiff-appellant, George Rinker, and defendant-appellee, 

Lori Rose Colina-Lee, are neighbors in the semirural subdivision of 

Soldier Canyon Estates in Larimer County. Their dispute centers 

on a culvert that Rinker installed to prevent runoff from draining 

onto his property. Colina-Lee contends that Rinker breached the 

neighbors’ road maintenance agreement when he installed the 

culvert.

¶ 2 Rinker appeals the district court’s orders granting Colina-Lee 

leave to assert counterclaims, denying his motion for leave to join

the Galena Court Property Owners’ Association (the Association) as 

a defendant, and entering an injunction requiring Rinker to unblock 

the culvert. 

¶ 3 We affirm the district court’s rulings and hold (1) the merits of 

a district court’s sua sponte ruling are reviewable on appeal, 

regardless of whether any party contemporaneously objected to it; 

(2) an unincorporated association is not a necessary party in a case 

involving interpretation of its founding document; and (3) a finding 
2

of irreparable harm is not a prerequisite for entering a permanent 

injunction to protect an easement.

I. The Dispute Between the Residents of Galena Court

A. Rinker Installs the Culvert

¶ 4 Galena Court, an unpaved roadway, serves six lots in Soldier 

Canyon Estates. The households residing on Galena Court entered 

into the Galena Court Property Owners’ Association Road 

Maintenance Agreement (the Agreement). The Agreement

established the Association and required the homeowners to pay 

annual dues to fund the maintenance of Galena Court.

¶ 5 Shortly after purchasing his property on Galena Court, Rinker 

installed a culvert along the front of his driveway to divert the 

natural runoff from the land above his home. More than a decade 

later, Jaeson Brewen, another resident of Galena Court, reshaped a 

portion of Galena Court uphill from Rinker’s property. As part of 

this work, Brewen placed recycled asphalt material on Galena 

Court. He also increased the grade and altered the contour of 

Galena Court. These changes caused sediment and asphalt 

particles to run through the culvert and to collect on Rinker’s front 

yard.
3

¶ 6 In addition, the Association changed the shape of the section 

of Galena Court uphill from Rinker’s property. Rinker contended 

that the new shape of Galena Court exacerbated the deposits of

asphalt onto his yard and increased the difficulty of accessing his

property. 

¶ 7 Rinker complained to the Association about the asphalt 

particles that were washing down from Galena Court, through the 

culvert, and onto his front yard. Although the Association installed 

a filtration system to attempt to protect Rinker’s property from the 

runoff, polluted water continued to flow from Galena Court onto 

Rinker’s front yard. Rinker tried unsuccessfully to fix the drainage 

problem by installing filters over the culvert. 

¶ 8 When these solutions proved ineffective, Rinker blocked the 

culvert to protect his property from further sediment damage. The 

blocked culvert caused road sediment to flow onto, and to erode, 

Galena Court. Larimer County demanded that Rinker unblock the 

culvert, asserting that the blocked culvert restricted “the flow of 

water in the road-side ditch, causing it to overflow the traveled 

way.” 
4

¶ 9 Rinker filed an action against Larimer County and Brewen. 

Rinker asked the district court to enter (1) a declaratory judgment 

that Larimer County lacked jurisdiction over Galena Court because 

it was not a public right-of-way and (2) an injunction barring 

Larimer County from altering Rinker’s property or any part of 

Galena Court adjacent to Rinker’s property. In addition, Rinker 

asserted a trespass claim against Brewen. 

¶ 10 Larimer County filed a counterclaim for an injunction

requiring Rinker to remove the obstructions he had placed on

Galena Court and in or near the culvert. The County also sought 

an injunction prohibiting Rinker from placing any additional 

obstructions on Galena Court or otherwise interfering with Larimer 

County’s authority over Galena Court. Brewen asserted a 

counterclaim for a mandatory injunction compelling Rinker to 

remove the obstacles and to restore the surface of Galena Court. 

B. The District Court Grants Colina-Lee Leave to File 

Counterclaims

¶ 11 Larimer County moved for an order requiring Rinker to join all 

the property owners in the Soldier Canyon Estates subdivision as 

necessary parties pursuant to C.R.C.P. 19. After the district court 
5

granted the motion, Rinker filed an amended complaint that 

included claims against all the Soldier Canyon Estates property 

owners, including Colina-Lee and the other owners of property 

adjoining Galena Court. In her answer, Colina-Lee pleaded, as an 

affirmative defense, that Rinker had breached the Agreement.

¶ 12 As the trial date approached, Larimer Country vacated the 

public right-of-way on Galena Court. Rinker then settled with 

Larimer County and Brewen. As part of the settlements, Rinker 

agreed to dismiss his claims against Larimer County and Brewen, 

who agreed to dismiss their counterclaims. Rinker and Brewen

further agreed to the entry of a stipulated judgment that, among 

other provisions, required Rinker to remediate portions of Galena 

Court that his culvert had damaged. The stipulated judgment, 

however, would have granted Rinker authority to alter Galena Court 

without consulting the other owners of property adjoining Galena 

Court. In light of his settlements with Larimer County and Brewen, 

Rinker asked the district court to dismiss his claims against the 

property owners.
6

¶ 13 Colina-Lee objected to the dismissal motion and the proposed 

stipulated judgment, which she contended would adversely affect

her interest in Galena Court. She argued that, regardless of 

Rinker’s settlements with Larimer County and Brewen, the 

proposed stipulated judgment would give Rinker authority to alter 

Galena Court without the approval of the remaining Galena Court 

property owners, in violation of the Agreement. Colina-Lee

requested a pretrial conference to clarify which issues, claims, and 

parties remained for trial.

¶ 14 At the pretrial conference, counsel for Colina-Lee orally moved 

for leave to amend her answer to assert counterclaims for breach of 

the Agreement. Without providing Rinker with an opportunity to 

address Colina-Lee’s motion, the district court granted the motion 

from the bench. The district court found that Colina-Lee should be 

permitted to assert a cross-claim or counterclaim in light of the 

significant change in the posture of the case as a consequence of 

Rinker’s settlements with Larimer County and Brewen. The district 

court then asked counsel for Rinker whether he had anything 

further to say. Counsel for Rinker said that, because the district 
7

court had already granted Colina-Lee’s motion, Rinker would not 

present any arguments in opposition to the motion for leave to 

amend.

¶ 15 Rinker subsequently moved for reconsideration of the district 

court’s ruling granting Colina-Lee leave to amend. In his motion for 

reconsideration, Rinker argued for the first time that (1) Colina-Lee 

had waited too long to plead her new claims; (2) she had no valid 

excuse for asserting an untimely motion for leave to amend; and (3) 

the assertion of Colina-Lee’s new claims would be highly prejudicial 

to Rinker. The district court summarily denied Rinker’s motion for 

reconsideration.

¶ 16 In her counterclaims, Colina-Lee sought (1) an injunction 

requiring Rinker to comply with the Agreement and to open the 

blocked culvert and (2) a declaratory judgment that, under the 

Agreement, Rinker had no right to make unilateral changes to 

Galena Court without the approval of the other Galena Court 

property owners. After Rinker filed his answer to Colina-Lee’s 

counterclaims, the district court set a new trial date. 

C. The District Court Denies Rinker’s Motion for Leave to Amend
8

¶ 17 Rinker moved for leave to amend his complaint two months 

before trial. Rinker sought to join the Association as a defendant

and to assert claims against the Association for nuisance and 

trespass. He also requested leave to add a claim for a declaratory 

judgment stating that the Agreement required the Association to 

maintain Galena Court. 

¶ 18 The district court denied Rinker’s motion for leave to amend, 

finding that (1) the Association was not a necessary party, contrary 

to Rinker’s contention; (2) an amendment adding claims against a 

new party would require vacating the new trial date; and (3) Rinker 

had not shown good cause for amending his complaint. 

D. Colina-Lee Prevails at Trial 

¶ 19 At the conclusion of the trial, the district court granted the 

relief that Colina-Lee had requested. It entered an injunction 

requiring Rinker to unblock the culvert. (Although the district 

court’s order also requires Rinker to restore the culvert to its 

original location, the record does not reflect from where Rinker had 

moved the culvert.)
9

¶ 20 The district court also entered a declaratory judgment stating 

that (1) each property owner has the right to enforce the Agreement; 

(2) the Agreement governs the repair, maintenance, and 

improvement of Galena Court; (3) the Association is responsible for 

maintaining Galena Court; (4) the Association is responsible for any 

improvements to Galena Court; (5) pursuant to the Agreement, the 

property owners must avoid damaging or degrading Galena Court 

beyond the wear due to normal usage; and (6) the Agreement does 

not otherwise impair or limit the property owners’ use of their 

respective properties. Rinker filed this appeal.

II. The District Court Did Not Abuse Its Discretion in Granting 

Colina-Lee’s Motion for Leave to Amend

¶ 21 Rinker contends that the district court erred in granting 

Colina-Lee leave to assert counterclaims against him. He argues 

that Colina-Lee’s motion was untimely and prejudicial. We 

disagree.

A. Rinker’s Opposition to Colina-Lee’s Motion Is Properly Before 

Us on Appeal

¶ 22 Before reviewing the merits of Rinker’s opposition to ColinaLee’s motion for leave to amend, we consider whether Rinker’s 

arguments against Colina-Lee’s motion are properly before us. The 
10

parties did not brief whether Rinker preserved those arguments for 

appeal. Preservation is a threshold question. People v. Bondsteel, 

2015 COA 165, ¶ 6, ___ P.3d ___, ___ (cert. granted Oct. 31, 2016). 

We do not review issues that have been insufficiently preserved.

Liberty Bankers Life Ins. Co. v. First Citizens Bank & Tr. Co., 2014 

COA 151, ¶ 25, 411 P.3d 111, 118. 

¶ 23 We conclude that we may review the issue given the 

circumstances under which the district court granted Colina-Lee’s 

motion. Without advance notice to the district court or to Rinker, 

at the pretrial conference, Colina-Lee orally moved for leave to 

assert counterclaims. Following a brief colloquy with counsel for 

Colina-Lee, and without asking for Rinker’s position on the motion, 

the district court granted Colina-Lee leave to “file an amended 

pleading to assert whatever cross-claims or counterclaims she 

deems appropriate.” 

¶ 24 Before issuing its ruling, the district court never gave Rinker a 

timely opportunity to be heard on the matter. Only after granting 

the motion did the district court ask Rinker’s attorney, “do you have 

anything further?” 
11

¶ 25 As a general rule, a party must make a timely and specific 

objection or request for relief in the district court to preserve an 

issue for appeal. Am. Family Mut. Ins. Co. v. DeWitt, 218 P.3d 318, 

326 (Colo. 2009). To be timely, a party must assert the objection or 

request for relief contemporaneously with the allegedly erroneous 

action. See Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 600 

(Colo. App. 2007). In addition, presentation of new arguments in a 

motion for reconsideration is improper. Ogunwo v. Am. Nat’l Ins. 

Co., 936 P.2d 606, 611 (Colo. App. 1997); see also C.R.C.P. 121, 

§ 1-15(11) (“Motions to reconsider interlocutory orders of the court 

. . . . are disfavored. A party moving to reconsider must show more 

than a disagreement with the court’s decision.”); Bally Export Corp. 

v. Balicar, Ltd., 804 F.2d 398, 404 (7th Cir. 1986) (“[A] motion for 

reconsideration is an improper vehicle . . . to tender new legal 

theories”).

¶ 26 Initially, we note that we need not decide whether, to preserve 

his objections for appeal, Rinker should have made a record of his 

objections immediately after the court ruled on the matter. (It 

should go without saying, however, that the district court should 
12

have provided him with an opportunity to respond to Colina-Lee’s 

oral motion prior to deciding it.) That is because where, as here, 

the trial court rules sua sponte on an issue, the merits of its ruling 

are subject to review on appeal, whether timely objections were 

made or not. See In re Estate of Ramstetter, 2016 COA 81, ¶ 71 n.7, 

411 P.3d 1043, 1054 n.7 (referencing the rule that “where a trial 

court addresses an argument, whether that argument was 

preserved is moot”); cf. People v. Milligan, 77 P.3d 771, 775 (Colo. 

App. 2003) (“[B]ecause the trial court addressed defendant’s 

statements and the Miranda issue at the suppression hearing, we 

conclude the issue was properly preserved for appeal.”).

¶ 27 Consequently, we address the merits of Rinker’s objections to 

Colina-Lee’s motion for leave to amend.

B. Standard of Review

¶ 28 Granting leave to amend is within the sound discretion of the 

trial court. Benton v. Adams, 56 P.3d 81, 85 (Colo. 2002). On 

appeal, we review whether the trial court abused its discretion in 

ruling on the motion to amend. Polk v. Denver Dist. Court, 849 P.2d 

23, 25 (Colo. 1993). 
13

¶ 29 A trial court abuses its discretion when its decision is 

manifestly arbitrary, unreasonable, or unfair. E-470 Pub. Highway 

Auth. v. Revenig, 140 P.3d 227, 230 (Colo. App. 2006). “It is not 

necessary that we agree with the trial court’s decision.” Streu v. 

City of Colo. Springs ex rel. Colo. Springs Utils., 239 P.3d 1264, 1268 

(Colo. 2010). A court also abuses its discretion when it 

misconstrues or misapplies the law. People v. Reyes, 166 P.3d 301, 

302 (Colo. App. 2007).

¶ 30 The trial court’s determination must not exceed the bounds of 

the rationally available choices, given the facts and applicable law 

in the case. Big Sky Network Can., Ltd. v. Sichuan Provincial 

Gov’t, 533 F.3d 1183, 1186 (10th Cir. 2008).

C. The Law Governing Motions for Leave to Amend

¶ 31 C.R.C.P. 15(a) prescribes “a liberal policy of amendment and 

encourages the courts to look favorably on requests to amend.” 

Eagle River Mobile Home Park, Ltd. v. Dist. Court, 647 P.2d 660, 662 

(Colo. 1982) (quoting Varner v. Dist. Court, 618 P.2d 1388, 1390 

(Colo. 1980)). Pleadings are not sacrosanct, and justice is best 

served by permitting parties to ensure that the issues, as ultimately 
14

framed, represent the parties’ true positions. Brown v. 

Schumann, 40 Colo. App. 336, 338-39, 575 P.2d 443, 445 (1978).

¶ 32 Our leniency toward the granting of amendments is not 

without limits, however. Polk, 849 P.2d at 25. Leave to amend may 

be denied where, for example, the moving party unduly delayed in 

seeking the amendment, the amendment would unduly prejudice 

the opposing party, the moving party acted in bad faith or with a 

dilatory motive, or the amendment would be futile. Varner, 618 

P.2d at 1390; Akin v. Four Corners Encampment, 179 P.3d 139, 147 

(Colo. App. 2007). 

¶ 33 The district court must assess the motion for leave to amend 

in light of the totality of the circumstances. Polk, 849 P.2d at 26. It 

must balance the policy favoring amendment of pleadings against 

the burden that granting the amendment may impose on the other 

party. Gaubatz v. Marquette Minerals, Inc., 688 P.2d 1128, 1130 

(Colo. App. 1984). 

¶ 34 Courts may permit amendment late in a case so long as the 

amendment does not prejudice the nonmoving party. Eagle River, 

647 P.2d at 663. The supreme court has affirmed district courts’ 
15

orders granting leave to amend four days prior to trial, Palmer Park

Gardens, Inc. v. Potter, 162 Colo. 178, 182-83, 425 P.2d 268, 271

(1967), and even during trial, Cont’l Sales Corp. v. Stookesberry, 170 

Colo. 16, 24, 459 P.2d 566, 570 (1969). Delay alone, without a 

showing of resulting prejudice or an obvious design to harass, 

generally is an insufficient basis to deny a motion for leave to 

amend. Eagle River, 647 P.2d at 663.

D. Colina-Lee’s Motion for Leave to Amend Was Timely

¶ 35 Rinker contends that the district court erred in granting 

Colina-Lee’s motion for leave to amend because the motion was 

untimely. He asserts, correctly, that Colina-Lee had been aware of 

the facts underlying her counterclaims for months before the 

pretrial conference. The proposed counterclaims arose under the 

same facts as those supporting Colina-Lee’s affirmative defense of 

breach of contract, which she included in her answer five months 

before the pretrial conference.

¶ 36 The record reflects that the district court granted Colina-Lee

leave to amend primarily because of the significant change in the 

posture of the case following Rinker’s announcement at the pretrial 
16

conference that he had settled with Larimer County and Brewen. 

We agree with the district court that Colina-Lee’s motion was timely 

because Rinker’s settlements with Larimer County and Brewen 

significantly impacted Colina-Lee’s ability to protect her interest in 

Galena Court.

¶ 37 The nature of the litigation changed substantially upon 

Rinker’s announcement of his settlements with Larimer County and 

Brewen. In their respective counterclaims, Larimer County and 

Brewen sought orders requiring Rinker to remove the obstructions 

he had placed within the right-of-way on Galena Court and barring 

him from placing any new obstructions in the right-of-way. In its 

counterclaim, Larimer County had asserted that (1) Galena Court 

was a dedicated public road; (2) Larimer County had the sole right 

to authorize and control the use of Galena Court; and (3) Larimer 

County’s authority superseded the rights of all users of the public 

right-of-way, including the owners of the lots that abutted the road. 

Brewen’s counterclaim included a cause of action for Rinker’s 

breach of the Agreement. 
17

¶ 38 Colina-Lee believed that, through their counterclaims, Larimer 

County and Brewen were protecting her interest in keeping Galena 

Court free from Rinker’s obstructions. As a consequence of Larimer 

County’s and Brewen’s settlements with Rinker, however, their 

counterclaims dropped out of the case. Rinker’s settlements with 

Larimer County and Brewen would have given Rinker authority to 

make unilateral changes to Galena Court without consulting the 

remaining Galena Court property owners.

¶ 39 Upon learning of Rinker’s settlement with Brewen, Colina-Lee 

concluded that she needed to take affirmative steps to protect her 

interest in Galena Court, including seeking a remedy for the 

damage that Rinker was causing to Galena Court. For this reason, 

Colina-Lee orally moved at the pretrial conference for leave to file 

her own breach of contract counterclaims against Rinker.

¶ 40 We disagree with Rinker’s contention that Colina-Lee had 

ample opportunity before the pretrial conference to assert her 

counterclaims. The record does not indicate that Colina-Lee could 

have foreseen that Larimer County and Brewen would drop their 

counterclaims or that Larimer County would vacate the public 
18

right-of-way on Galena Court. Before the pretrial conference, 

Colina-Lee could not have known that the parties protecting her 

interest in Galena Court had agreed to settlement terms that would 

have allowed Rinker to unilaterally alter Galena Court.

¶ 41 Allowing Colina-Lee leave to amend promoted judicial economy 

and ensured that all disputes relating to Rinker’s alleged violation 

of the Agreement could be resolved through a single action. 

Nothing in the record indicates that Colina-Lee filed her motion in 

bad faith or for a dilatory purpose. 

¶ 42 We therefore hold that Colina-Lee did not unreasonably delay 

in moving for leave to amend, given the material change in the 

posture of the case upon Larimer County’s and Brewen’s 

settlements with Rinker. 

E. Rinker Did Not Suffer Undue Prejudice as a Consequence of 

Colina-Lee’s Amendment of her Pleading

¶ 43 Rinker argues that the district court’s order granting 

Colina-Lee leave to amend improperly deprived him of the benefits 

of his settlement with Brewen and forced him to start over in 

defending a claim for alleged breach of the Agreement. We disagree.
19

¶ 44 Rinker does not cite any legal authority to support his 

contention that he could have imposed on Colina-Lee the terms of 

his settlements with Larimer County and Brewen, even though the 

settlements would have permitted Rinker to continue to obstruct 

the portion of Galena Court adjoining Colina-Lee’s property. When 

Larimer County and Brewen settled with Rinker, Colina-Lee needed 

to protect her interests by asserting her own breach of contract 

counterclaims. 

¶ 45 In any event, the district court cured any possible prejudice to 

Rinker by continuing the trial date. “Where the prejudice suffered 

by the opposing party is lack of adequate time to prepare his case, 

this hardship may be avoided by granting a continuance of the trial 

date.” Eagle River, 647 P.2d at 663-64. 

¶ 46 Rinker conceded that Colina-Lee’s counterclaims were 

substantially similar to Brewen’s breach of contract counterclaim. 

Rinker had litigated that counterclaim for months. He therefore

had ample opportunity to prepare a defense to Colina-Lee’s nearly 

identical counterclaims.
20

¶ 47 For these reasons, we conclude that the district court did not 

abuse its discretion in granting Colina-Lee leave to amend.

III. The District Court Did Not Abuse Its Discretion in Denying 

Rinker’s Motion for Leave to Amend

¶ 48 Rinker contends that the district court erred in denying his 

motion for leave to amend his complaint. We disagree.

A. Standard of Review

¶ 49 As we noted in Part II.B above, granting leave to amend is 

within the sound discretion of the district court. Benton, 56 P.3d at

85. We will uphold the district court’s decision as long as it does 

not exceed the bounds of the rationally available choices, given the 

facts and applicable law. Big Sky Network Can., Ltd., 533 F.3d at 

1186.

B. Rinker’s Arguments Supporting His Motion for Leave to Amend 

¶ 50 Rinker did not merely request leave to amend his complaint. 

He sought to join the Association as a new party and to assert new 

claims against the Association only two months before trial. He did 

not seek leave to amend his claims against Colina-Lee, the only 

other party to the case.
21

¶ 51 Rinker contends that the district court erred in denying his 

motion for leave to amend because the Association was a necessary 

party, as it “had an interest in the meaning of its own founding 

document” — the Agreement. 

¶ 52 C.R.C.P. 19(a) states that

[a] person who is properly subject to service of 

process in the action shall be joined as a party 

in the action if: (1) In his absence complete 

relief cannot be accorded among those already 

parties, or (2) he claims an interest relating to 

the subject of the action and is so situated 

that the disposition of the action in his 

absence may: (A) As a practical matter impair 

or impede his ability to protect that interest or 

(B) leave any of the persons already parties 

subject to a substantial risk of incurring 

double, multiple, or otherwise inconsistent 

obligations by reason of his claimed interest. 

¶ 53 Rinker does not support his argument that the Association 

was a necessary party with any legal authority other than C.R.C.P. 

19(a)(1)(A), which refers neither to unincorporated organizations nor 

to “founding documents.” We are unaware of any case holding that 

a corporate entity must be joined as a necessary party in any action 

involving interpretation of its “founding document.”

¶ 54 Three days after oral argument, Rinker submitted 

supplemental authority in the form of citations to three out-of-state 
22

cases, all decided more than a decade ago. Rinker contends that 

the cases support his argument that the Association was a 

necessary party. 

¶ 55 Rinker did not comply with C.A.R. 28(i) in tendering the cases. 

See C.A.R. 28(i) (“If pertinent and significant new authority comes to 

a party’s attention after the party’s brief has been filed, a party may 

promptly advise the court by giving notice . . . .”) (emphasis added). 

None of the three cases is new. We have discretion to disregard 

supplemental authority that is not pertinent, significant, and new. 

DeHerrera v. Am. Family Mut. Ins. Co., 219 P.3d 346, 354 (Colo. 

App. 2009). 

¶ 56 In any event, none of Rinker’s cases addresses whether a 

corporate entity must be joined as a necessary party in a case 

involving interpretation of its “founding document.” See McCraw v. 

Aux, 696 S.E.2d 739, 740 (N.C. Ct. App. 2010); Page v. Bald Head 

Ass’n, 611 S.E.2d 463, 465 (N.C. Ct. App. 2005); Gurrad v. Klipsun 

Waters Homeowner’s Ass’n, No. 23029-1-II, 1998 WL 804801, at *2 

(Wash. Ct. App. Nov. 20, 1998) (unpublished opinion). Rinker’s 
23

supplemental authority, therefore, does not alter our conclusion 

that the Association was not a necessary party.

¶ 57 We are therefore unconvinced that the district court erred in 

declining to join the Association as a necessary party. 

¶ 58 Indeed, the case law supports the district court’s decision that 

preservation of the trial date warranted denial of Rinker’s motion for 

leave to amend. In Apollo Tire, Inc. v. United Bank of Lakewood 

National Ass’n, 531 P.2d 976, 977-78 (Colo. App. 1974) (not 

published pursuant to C.A.R. 35(f)), a division of this court held 

that a district court does not abuse its discretion in denying a 

motion for leave to amend where “[the] litigation had already been 

protracted and the granting of plaintiff’s motion to amend would 

have required further lengthy delay in order that the defendants 

might respond to the new claims for relief.” See Eckstine v. Harris, 

521 P.2d 1280, 1281 (Colo. App. 1974) (not published pursuant to 

C.A.R. 35(f)) (holding that denial of leave to amend is proper where 

“numerous delays have already occurred, the proposed amendment 

is not tendered until just prior to the date of the trial, and no 
24

justification appears for further delay in bringing the litigation to an 

end”).

¶ 59 A motion to join a new party is materially different from a 

request to amend claims against existing parties, particularly if the 

proposed new party is not necessary to adjudication of the case. 

Accordingly, we conclude that the district court did not abuse its 

discretion in denying Rinker’s motion for leave to amend. 

IV. The District Court Did Not Abuse Its Discretion in Entering the 

Permanent Injunction Against Rinker

¶ 60 Rinker contends that the district court erred in entering a

permanent injunction requiring him to unblock the culvert and to 

restore it to its original location. (As noted above, the record 

contains no information regarding the original location of the 

culvert. Accordingly, we solely examine that portion of the 

injunction requiring Rinker to unblock the culvert.)

¶ 61 Specifically, Rinker contends that the district court (1) did not

make a finding on each of the required elements of an injunction 

and (2) entered an overbroad order that improperly mandates

Rinker to take specific actions on his property. We disagree.
25

A. Standard of Review

¶ 62 We review the district court’s order entering a permanent 

injunction for an abuse of discretion. Rome v. Mandel, 2016 COA 

192M, ¶ 60, 405 P.3d 387, 399; Stulp v. Schuman, 2012 COA 144, 

¶ 9, 410 P.3d 457, 459. The grant or denial of injunctive relief lies 

within the sound discretion of the district court and will be reversed 

only upon a showing of an abuse of that discretion. Langlois v. Bd.

of Cty. Comm’rs, 78 P.3d 1154, 1157 (Colo. App. 2003). 

¶ 63 A court abuses its discretion when its decision is manifestly 

arbitrary, unreasonable, or unfair; is based on an erroneous 

understanding or application of the law; or misconstrues or 

misapplies the law. People v. Wunder, 2016 COA 46, ¶ 20, 371 P.3d 

785, 789. When reviewing orders for permanent injunctions, we 

defer to the district court’s underlying factual findings if the record 

supports them. Rome, ¶ 60, 405 P.3d at 399; Stulp, ¶ 9, 410 P.3d

at 459.

B. The Required Elements of an Injunction

¶ 64 Under the Colorado law governing permanent injunctions, the 

party seeking the injunction must generally prove four elements: (1) 

he or she has achieved actual success on the merits; (2) irreparable 
26

harm will result unless the injunction is issued; (3) the threatened 

injury outweighs the harm that the injunction may cause to the 

opposing party; and (4) the injunction, if issued, will not adversely 

affect the public interest. Langlois, 78 P.3d at 1158. 

¶ 65 Rinker concedes that the district court found that Colina-Lee 

satisfied the first element for entry of an injunction: actual success 

on the merits. Accordingly, we do not need to address this element. 

¶ 66 Rinker contends that the district court erred in entering the 

injunction without making findings regarding the second, third, and 

fourth elements. We disagree.

1. Element Two: Irreparable Harm

¶ 67 Although Colorado courts have entered injunctions to enforce 

easements, see, e.g., Roaring Fork Club, L.P. v. St. Jude’s Co., 36 

P.3d 1229, 1237-38 (Colo. 2001); Upper Platte & Beaver Canal Co. v. 

Riverview Commons Gen. Improvement Dist., 250 P.3d 711, 715-16 

(Colo. App. 2010); Lazy Dog Ranch v. Telluray Ranch Corp., 923 

P.2d 313, 316-18 (Colo. App. 1996), they have not considered

whether a court must satisfy the irreparable harm element before 

enjoining interference with an easement. (Both Rinker and 
27

Colina-Lee concede that their dispute concerns rights to an 

easement. An easement is a “nonpossessory right to enter and use 

land in the possession of another . . . .” Restatement (Third) of 

Prop.: Servitudes § 1.2(1) (Am. Law Inst. 2000).) 

¶ 68 For this reason, we turn to the Restatement for guidance on 

the required elements of an injunction entered to restore an

easement. The Restatement explains “why easement cases often 

require noncompensatory relief.” Upper Platte, 250 P.3d at 715 

(citing section 8.3 of the Restatement (Third) of Prop.: Servitudes 

authoritatively). “Injunctive relief is normally available to redress 

violations of easements . . . without proof of irreparable injury or a 

showing that a judgment for damages would be inadequate.” 

Restatement (Third) of Prop.: Servitudes § 8.3 cmt. b.

¶ 69 Comment b explains that a court need not find the element of 

irreparable harm in enjoining interference with an easement 

because (1) the value of an easement can be difficult to quantify; (2) 

market values may not reflect the easement’s value to the land 

owner; and (3) a party should not be permitted to buy out of a 

servitude obligation if the servitude continues to serve its purpose. 
28

Id. (The Restatement uses the term “servitude” to describe 

easements and similar rights and obligations that run with the 

land. Id. § 1.1(1)(a) & (b).) We find the reasoning of the 

Restatement persuasive.

¶ 70 We therefore hold that a party seeking an injunction as a 

remedy for wrongful interference with an easement is not required 

to prove irreparable harm. 

2. Elements Three and Four: Balancing the Parties’ Interests and 

Evaluating the Impact of the Proposed Injunction on the 

Public Interest

¶ 71 The Restatement does not address whether courts may enter 

an injunction as a remedy for interference with an easement 

without making findings as to whether (1) the threatened injury 

outweighs the harm the injunction may cause to the opposing party

and (2) the injunction, if issued, will not adversely affect the public 

interest. 

¶ 72 We need not decide whether a court must consider the third 

and fourth elements when considering an injunction to enforce an 

easement, however. Regardless of whether those elements apply to 
29

injunctions involving easements, the district court’s findings 

satisfied the third and fourth elements.

a. The District Court Balanced the Injury to Colina-Lee Against 

the Harm an Injunction Would Cause Rinker

¶ 73 The district court balanced Colina-Lee’s and Rinker’s 

competing interests. The district court acknowledged Rinker’s 

argument that Colina-Lee’s interest in the condition of Galena

Court must be “balanced with Rinker’s rights as the owner of the 

burdened property.” 

¶ 74 The district court found that, by blocking the culvert, Rinker 

caused “erosion, ruts, and channels clearly beyond what would be 

considered wear [to Galena Court] due to normal usage.” The 

district court noted that the Agreement precluded Rinker from 

damaging Galena Court in this manner. Therefore, the district 

court found that, absent the requested injunction, Rinker’s 

activities would result in further harm to Colina-Lee’s interest in 

Galena Court.

¶ 75 At the same time, the district court acknowledged that 

reopening the culvert would impact Rinker by causing “runoff and 

debris [to be] deposited in [Rinker’s] front yard.” The district court 
30

thus considered the harm that entry of the injunction would cause 

to Rinker.

¶ 76 Therefore, the record reflects that the district court balanced 

the injury that Rinker was causing to Colina-Lee’s interest in 

Galena Court against the harm that the requested injunction would 

cause to Rinker. The district court concluded that the benefit of 

remediating the damage to Galena Court outweighed the harm that 

Colina-Lee’s injunction would cause to Rinker. 

b. The District Court Considered Whether the Injunction Would 

Adversely Impact the Public Interest

¶ 77 The district court determined that the proposed injunction 

would not adversely affect the public interest, which is the fourth 

element of an injunction. The district court found that Rinker’s 

actions had degraded Galena Court so badly that operators of 

passenger vehicles had difficulty driving on it. Drivers’ ability to 

navigate Galena Court without difficulty is a public interest 

consideration. Thus, the district court considered whether the 

public interest supported entry of the injunction.
31

¶ 78 Accordingly, we disagree with Rinker’s contention that the 

district court made insufficient findings before entering the 

injunction. 

C. Mandatory Injunctions in Easement Disputes

¶ 79 We next address Rinker’s challenge to the scope of the 

injunction. Rinker asserts that the district court abused its 

discretion by issuing an injunction requiring him to unblock the 

culvert, rather than simply directing him to cease violating the 

terms of the Agreement. 

¶ 80 “An injunction is an extraordinary and discretionary equitable 

remedy” that is “intended to prevent future harm.” Bd. of Cty.

Comm’rs v. Vandemoer, 205 P.3d 423, 430 (Colo. App. 2008). Trial 

courts are vested with broad discretion to formulate the terms of 

injunctive relief. Colo. Springs Bd. of Realtors, Inc. v. State, 780 

P.2d 494, 498 (Colo. 1989).

¶ 81 Colorado law allows for the entry of injunctive relief in 

easement disputes. Injunctive relief is available where the servient

owner has interfered with the dominant owner’s easement. Roaring 

Fork Club, 36 P.3d at 1237-38; Upper Platte, 250 P.3d at 715. “[I]f a 

plaintiff does not receive a double recovery, a court may issue an 
32

injunction to open a blocked easement . . . .” Upper Platte, 250 P.3d 

at 715 (quoting Proper v. Greager, 827 P.2d 591, 597 (Colo. App.

1992)). 

¶ 82 Damages are inadequate in easement cases because land is 

unique, and courts must accommodate competing uses. Roaring 

Fork Club, 36 P.3d at 1235-36. In an easement alteration case, 

“damages alone will not provide the plaintiff with the actual use to 

which he is entitled,” and thus 

courts usually grant the easement owner 

injunctive relief when it is desired and when 

the defendant’s conduct in fact interferes with 

the easement rights. . . . Mandatory 

injunctions, for example an injunction to 

remove an obstruction on the easement, are 

not unusual where the facts warrant such 

relief.

1 Dan B. Dobbs, Law of Remedies § 7.7(6), at 785 (2d ed. 1993).

¶ 83 Under Colorado law, the traditional and preferred equitable 

remedy for a continuing trespass is a mandatory injunction

requiring the removal of the encroachment. Hunter v. Mansell, 240 

P.3d 469, 479 (Colo. App. 2010). An owner of a servient tenement 

has “no right for his own convenience or profit to change the 

location of a ditch, or to do anything which will interfere with the 
33

vested rights” of a dominant tenement therein, without the consent 

of the benefited party. Roaring Fork Club, 36 P.3d at 1234 

(quoting Chirichigno v. Dickinson, 63 Colo. 443, 445, 167 P. 1178, 

1178 (1917)). 

¶ 84 Rinker contends that the district court erred in imposing an 

affirmative obligation on him, rather than merely ordering him to 

remove the culvert, and in formulating a mandatory injunction that 

he asserts exceeds the scope of his obligations under the 

Agreement. We disagree.

¶ 85 The injunction cases Rinker cites are distinguishable. In 

K9Shrink, LLC v. Ridgewood Meadows Water & Homeowners Ass’n, 

278 P.3d 372, 374 (Colo. App. 2011), a division of this court upheld 

an injunction that followed the parameters of a restrictive covenant 

prohibiting certain activities on the subject property. In contrast,

Atmel Corp. v. Vitesse Semiconductor Corp., 30 P.3d 789, 796 (Colo. 

App. 2001), abrogated in part on other grounds by Ingold v. 

AIMCO/Bluffs, L.L.C. Apartments, 159 P.3d 116 (Colo. 2007), 

concerned the entry of an overbroad injunction that granted the 

plaintiff relief to which he was not entitled under his employment 
34

agreement. We are not persuaded that the scope of the injunction 

in this case ran afoul of K9Shrink or Atmel.

¶ 86 The Agreement prohibits certain activities or conditions that 

damage or degrade Galena Court beyond normal wear and tear. We

disagree with Rinker’s assertion that the district court exceeded the 

scope of its authority when it ordered Rinker to unblock the culvert. 

The entry of the mandatory injunction was an appropriate remedy

once the district court found that Rinker was blocking an easement. 

See Hunter, 240 P.3d at 479.

¶ 87 We perceive no distinction, other than a semantic one, 

between an injunction compelling Rinker to comply with the terms 

of the Agreement and an injunction requiring Rinker to unblock the 

culvert. Unlike the overbroad relief granted in Atmel, the district 

court here fashioned an injunctive remedy consistent with Rinker’s 

obligations under the Agreement.

¶ 88 Accordingly, we conclude that the district court did not abuse 

its discretion in entering an injunction requiring Rinker to unblock

the culvert. 
35

V. Conclusion

¶ 89 The judgment is affirmed.

JUDGE DAILEY and JUDGE FURMAN concur.