Broadmoor developer loses lawsuit


Property in The Broadmoor area will be developed for homes. - PAM ZUBECK
  • Pam Zubeck
  • Property in The Broadmoor area will be developed for homes.
A skirmish arising from a small development in The Broadmoor area has concluded in favor of the resident.

District Judge David Shakes ruled in favor of Dr. James Albert, awarding him attorney fees of $49,196 from the Newport Co. and developer Richard Delesk.

The "abuse of process" case arises out of Delesk's plan to develop about five acres known as Archer Park next door to Albert.

Albert and a contingent of neighbors have opposed the development of high-end homes, arguing, among other things, that the drainage plan is insufficient to protect their neighborhood from flooding. (Delesk — and the city — says they are sufficient. Delesk says  that Albert and other neighbors simply want to prevent the land from developing.) Despite Albert's and other neighbors' protests, which included technical reports by engineers hired by the neighbors, the city approved the drainage plan recently and development can begin.

But the court case at hand stems from Delesk's lawsuit alleging that Albert interfered in his attempt to get financing for the project, a charge Albert denies.

Asked for a comment on the outcome, Albert writes via email, "We are very pleased with the decision!"

Delesk had more say. He says in an email:
Mr. Albert was well represented by good counsel and I congratulate him on the ruling. The outcome of the case hindered on the testimony (or lack thereof) of [a key witness], who was the sole reason I filed a contract interference case in the first place. Unfortunately, when asked to verify the information he had originally given me, [that witness] changed his story during deposition and never showed up to testify during the trial hearing even though he was under subpoena. This left me without any corroboration of my original claim.

All this aside, we are excited to move forward with the development of Archer Park as we have several perspective clients interested in building with us!
Here's the judge's conclusion:
Albert has proven by a preponderance of the evidence that Delesk abused process by initiating this litigation. Albert has proven that the litigation was initiated for an improper purpose- to silence the opposition of Albert and Gruen to the Archer Park Project. The improper purpose of the litigation is evident in Delesk’s offer to dismiss the case in return for $5,000 and silencing Albert’s opposition to the Project just days after threatening Albert and his wife with damages in excess of $3,000,000. The litigation initiated by Delesk had no basis in fact. Albert has incurred damages in defending the claims asserted by Delesk. Albert has proven his claim for abuse of process. In this case and under these facts, the abuse of process was the initiation of the litigation itself. The damage incurred by Albert is $49,195.58, plus interest.

The claims asserted by Delesk were substantially groundless and vexatious. Attorney fees are awarded in favor of Albert. Delesk has the option a requesting a hearing on the amount of attorney fees to be determined separately pursuant to C.R.S. 13-17-103. The award of attorney fees pursuant to statute shall merge into the award of attorney fees as damages such that the monetary judgment shall be not be duplicated.

Read the court's order here:
See related PDF FINDINGS_OF_FACT__CONCLUSIONS__AND_ORDER.PDF In a separate case, Albert has sued the city to try to reverse City Council's approval of the subdivision, which came before a final drainage plan was approved by city staff.

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