McLean, Stevens deny path was recently fabricated
Judge nears 'land grab' rehearing
By Heath Urie (Contact)Wednesday, April 16, 2008
Courtesy Don and Susie Kirlin
This photo taken one day after Richard McLean and Edith Stevens filed a lawsuit seeking a portion of the Kirlins' lot in October 2006 shows no visible path on the lot, according to the Kirlins.
Courtesy Don and Susie Kirlin
This photo, taken by Don Kirlin in November 2007, shows a section of an 80-foot walkway that cuts across the Kirlin property on Hardscrabble Drive in south Boulder. The path arches around three pine trees and back toward the street down a small hill.
A Boulder County District Court judge charged with revisiting a controversial land dispute should not consider "outrageous" claims that Richard McLean and Edith Stevens lied to win their case, according to the couple's attorney.
In court documents submitted Tuesday, Boulder attorney Kim Hult responded pointedly to accusations made by Don and Susie Kirlin that their neighbors fabricated a path across their Hardscrabble Drive vacant lot.
The thin dirt trail, which has come to be known as "Edie's Path," was a critical piece of evidence that in part led Judge James C. Klein last fall to award about a third of one of the Kirlins' lots to McLean and Stevens under the longtime legal concept of "adverse possession."
The path, McLean and Stevens successfully argued at trial, represented more than the 18 years ofcontinuous use required by state law in order to assert the squatter's-rights law.
However, the Colorado Court of Appeals earlier this month granted a request by the Kirlins to send the case back to Klein based on "new evidence" that, they say, indicates the path was faked.
The Kirlins are asking Klein to overturn his trial court decision based on aerial and ground photographs of the disputed property and sworn affidavits of neighbors who say the path was a recent creation -- not the result of longtime use.
Hult's response to the Kirlins' package of evidence included an argument that Klein is under no obligation to find in favor of the Kirlins because they knew about, but failed to use, certain evidence in the original trial.
"In the apparent hope that the negative publicity garnered about the court's judgment will produce a new result on remand, Kirlin seeks to retry this case with long-available evidence to support arguments he made at trial," Hult wrote.
She said the Kirlins' evidence does not point to misconduct on the part of her clients.
"(The Kirlins') 'new' evidence proves little, other than that his witness cannot agree about when Edie's Path was allegedly 'fabricated,'" she wrote. "(They) further misunderstand the significance of the path, which was evidence of but one of McLean's many uses of the disputed property proved at trial."
She argued that the path, by itself, did not win the trial for McLean and Stevens.
"Kirlin, therefore, fails to prove -- by clear and convincing evidence -- that the alleged 'fabrication' of the path would have altered the outcome at trial had he chosen to introduce his 'new' evidence then," Hult wrote.
Hult's filing also includes more than 10 sworn affidavits in support of McLean and Stevens -- including two signed by McLean and Stevens themselves.
"My wife, Edie Stevens, and I have not taken any action to alter the condition of Edie's Path or to 'fabricate' that path after the filing of this case," McLean wrote.
Other witnesses include several former law clerks for McLean -- a former Boulder district judge -- who wrote that they recalled attending parties at the couple's home in which a nearby path was used.
On Tuesday, McLean said the paperwork "says it all" and declined to talk about the pending case.
Susie Kirlin said she hadn't seen the response Tuesday night and didn't want to comment except to say she feels she and her husband have a "strong case."
Both of the attorneys involved in the case said it would be inappropriate to comment.
Andy Low, the Kirlins' attorney, has until April 24 to file a response to Hult's brief.
Klein has been urged by the Colorado Court of Appeals to act quickly to resolve the Kirlins' request. The judge has the option to hold a limited hearing with each side, a full hearing complete with witnesses or to make a decision about the case after reviewing the written arguments.
The Kirlins have said they plan to continue the appeals process if Klein rules against them again.
Judge nears 'land grab' rehearing
By Heath Urie (Contact)Wednesday, April 16, 2008
Courtesy Don and Susie Kirlin
This photo taken one day after Richard McLean and Edith Stevens filed a lawsuit seeking a portion of the Kirlins' lot in October 2006 shows no visible path on the lot, according to the Kirlins.
Courtesy Don and Susie Kirlin
This photo, taken by Don Kirlin in November 2007, shows a section of an 80-foot walkway that cuts across the Kirlin property on Hardscrabble Drive in south Boulder. The path arches around three pine trees and back toward the street down a small hill.
A Boulder County District Court judge charged with revisiting a controversial land dispute should not consider "outrageous" claims that Richard McLean and Edith Stevens lied to win their case, according to the couple's attorney.
In court documents submitted Tuesday, Boulder attorney Kim Hult responded pointedly to accusations made by Don and Susie Kirlin that their neighbors fabricated a path across their Hardscrabble Drive vacant lot.
The thin dirt trail, which has come to be known as "Edie's Path," was a critical piece of evidence that in part led Judge James C. Klein last fall to award about a third of one of the Kirlins' lots to McLean and Stevens under the longtime legal concept of "adverse possession."
The path, McLean and Stevens successfully argued at trial, represented more than the 18 years ofcontinuous use required by state law in order to assert the squatter's-rights law.
However, the Colorado Court of Appeals earlier this month granted a request by the Kirlins to send the case back to Klein based on "new evidence" that, they say, indicates the path was faked.
The Kirlins are asking Klein to overturn his trial court decision based on aerial and ground photographs of the disputed property and sworn affidavits of neighbors who say the path was a recent creation -- not the result of longtime use.
Hult's response to the Kirlins' package of evidence included an argument that Klein is under no obligation to find in favor of the Kirlins because they knew about, but failed to use, certain evidence in the original trial.
"In the apparent hope that the negative publicity garnered about the court's judgment will produce a new result on remand, Kirlin seeks to retry this case with long-available evidence to support arguments he made at trial," Hult wrote.
She said the Kirlins' evidence does not point to misconduct on the part of her clients.
"(The Kirlins') 'new' evidence proves little, other than that his witness cannot agree about when Edie's Path was allegedly 'fabricated,'" she wrote. "(They) further misunderstand the significance of the path, which was evidence of but one of McLean's many uses of the disputed property proved at trial."
She argued that the path, by itself, did not win the trial for McLean and Stevens.
"Kirlin, therefore, fails to prove -- by clear and convincing evidence -- that the alleged 'fabrication' of the path would have altered the outcome at trial had he chosen to introduce his 'new' evidence then," Hult wrote.
Hult's filing also includes more than 10 sworn affidavits in support of McLean and Stevens -- including two signed by McLean and Stevens themselves.
"My wife, Edie Stevens, and I have not taken any action to alter the condition of Edie's Path or to 'fabricate' that path after the filing of this case," McLean wrote.
Other witnesses include several former law clerks for McLean -- a former Boulder district judge -- who wrote that they recalled attending parties at the couple's home in which a nearby path was used.
On Tuesday, McLean said the paperwork "says it all" and declined to talk about the pending case.
Susie Kirlin said she hadn't seen the response Tuesday night and didn't want to comment except to say she feels she and her husband have a "strong case."
Both of the attorneys involved in the case said it would be inappropriate to comment.
Andy Low, the Kirlins' attorney, has until April 24 to file a response to Hult's brief.
Klein has been urged by the Colorado Court of Appeals to act quickly to resolve the Kirlins' request. The judge has the option to hold a limited hearing with each side, a full hearing complete with witnesses or to make a decision about the case after reviewing the written arguments.
The Kirlins have said they plan to continue the appeals process if Klein rules against them again.
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