IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 11-CV-2489-CMA-CBS 

PGH INVESTMENT, L.P., a Virginia limited partnership, in its own capacity and as 

assignee of WILTON DEVELOPMENT OF STEAMBOAT, LLC, a Virginia limited liability 

company, 

 Plaintiffs, 

v. 

COLORADO GROUP REALTY, LLC, a Colorado limited liability company, and 

RANDALL HANNAWAY, an individual, 

 Defendants. 

 

PLAINTIFF’S OBJECTION TO THE HBK DEFENDANTS’ NOTICE OF SETTLEMENT 

 Plaintiff, PGH Investment, L.P. (“PGH”), in its own capacity and as the assignee 

of Wilton Development of Steamboat, LLC (“WDS”), by and through its counsel, MOYE 

WHITE LLP and TUELLER & ASSOCIATES, P.C., hereby files this Objection to the HBK 

Defendants’ Notice of Settlement. 

On September 6, 2012, counsel for Jill Brabec and Holloway, Brabec & Karet, 

P.C. (the “HBK Defendants”) filed a Notice of Settlement with this Court.1

 The filing is a 

nullity because the parties had already, on September 4, 2011, filed a Stipulation to 

 1

 Notably, Plaintiff was not a party to this settlement or even informed of it before its 

consummation; rather the HBK Defendants improperly and secretly sought to settle this case 

directly with the manager of a limited liability company that is the manager of Wilton 

Development of Steamboat, LLC. As this Court was divested of jurisdiction of this matter by the 

parties voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the settlement issue (or 

lack thereof) will be taken up in the Routt County District Court, where Plaintiff’s derivative 

claims against the HBK Defendants are now pending in case number 2012CV126. 

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Dismiss as to the HBK Defendants, executed by all parties, pursuant to Fed. R. Civ. P. 

41(a)(1)(A)(ii). Under well-established Tenth Circuit case law, a dismissal under Fed. R. 

Civ. P. 41(a)(1)(A)(ii), is self-executing and dismisses the case without a court order, if 

all parties stipulate thereto, which they did. De Leon v. Marcos, 659 F.3d 1276, 1283 

(10th Cir. 2011) (“A stipulation of dismissal filed under Rule 41(a)(1)(A)(i) or (ii) is selfexecuting and immediately strips the district court of jurisdiction over the merits”); 

Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003) (stating that under Rule 

41(a)(1)(A)(i), a “voluntary dismissal is self-executing, i.e., it is effective at the moment 

the notice is filed with the clerk and no judicial approval is required”); Smith v. Phillips, 

881 F.2d 902, 904 (10th Cir. 1989) (stating that a Rule 41(a)(1)(A)(ii) stipulation “cannot 

be conditioned by the court, and does not call for the exercise of any discretion on the 

part of the court. Once the stipulation is filed, the action on the merits is at an end.”). As 

such, the HBK parties were dismissed as of September 4, 2012, and any action 

undertaken in this Court with respect to the HBK Defendants, such as the Notice of 

Settlement filed on September 6, is a nullity. 

Further, the fact that the case by PGH against the HBK Defendants was 

putatively derivative does not create an impediment to this result, because the dismissal 

was the result of recent court rulings and not a voluntary settlement of the derivative 

action. Burks v. Lasker, 441 U.S. 471, 485, n.16; 99 S. Ct. 1831; 60 L. Ed. 2d 404 

(1979) (“As an alternative ground in support of the judgment below, respondents urge 

that Fed. Rule Civ. Proc. 23.1 prohibits termination of this derivative action. That Rule 

states that a derivative action "shall not be dismissed or compromised without the 

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approval of the court . . . .” However, as Judge Friendly noted with respect to former 

Rule 23(c), those words apply only to voluntary settlements between derivative plaintiffs 

and defendants, and were intended to prevent plaintiffs from selling out their fellow 

shareholders. They do not apply where the plaintiffs' action is involuntarily dismissed by 

a court, as occurred in this case. 

 While this case was voluntarily dismissed, such was based on the Court’s Order 

and comments at the August 20, 2012 hearing. Specifically, PGH voluntarily dismissed 

the HBK Defendants based upon the Court’s Order denying PGH’s motion to amend the 

scheduling order to add a necessary party to the derivative action and the Court’s 

indication that such party would not be permitted to be added by virtue of any ruling on 

the HBK Defendants’ motion to dismiss for failure to add an indispensable party. 

 As such, this case was dismissed and the Court divested of jurisdiction of the 

claim against the HBK Defendants as of September 4, 2012, and any action thereafter 

taken by the HBK Defendants or by the Court vis-à-vis the HBK Defendants is void. 

 

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DATED: September 13, 2012 

MOYE WHITE LLP 

 

 By: /s/ Eric B. Liebman 

Eric B. Liebman, Esq. (#27051) 

Shannon M. Bell, Esq. (#35440) 

Dean E. Richardson, Esq. (#35349) 

16 Market Square, 6th Floor 

1400 16th Street 

Denver, Colorado 80202-1486 

Telephone: (303) 292-2900 

Facsimile: (303) 292-4510 

TUELLER & ASSOCIATES, P.C. 

Douglas R. Tueller, Esq. (#12958) 

Ryan D. Mousel, Esq. (#35798) 

307 East Colorado Avenue, Suite 201 

Telluride, Colorado 81435-3153 

Telephone: (970) 728-5775 

Facsimile: (970) 728-5898 

 

 Attorneys for PGH Investment, L.P. 

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CERTIFICATE OF SERVICE 

 I certify that on September 13, 2012, I electronically served the foregoing on the 

following individuals named below using the CM/ECF system and/or electronic mail, 

where noted: 

G. Roger Bock, Esq. 

Frascona, Joiner, Goodman and 

Greenstein, P.C. 

4750 Table Mesa Drive 

Boulder, Colorado 80305-5541 

Email: roger@frascona.com 

Daniel R. McCune, Esq. 

Gwen M. Rogers, Esq. 

Kennedy Childs, P.C. 

633 17th Street, Suite 2200 

Denver, CO 80202 

Email: dmccune@kennedychilds.com 

Email: grogers@kennedychilds.com 

Kenneth L. Levinson, Esq.

Balaban, Levinson & Costigan, P.C. 

1745 Lafayette Street 

Denver, Colorado 80218-1116 

Email: kll@ballev.com 

Kenneth W. Owens 

2717 Willard Road 

Richmond, VA 23294-3631 

Email: kwo@pghinv.com 

/s/ Deanna S. Colvin 

 Deanna S. Colvin 

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