24CA2195 Ball v Loveland 01-08-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2195 Larimer County District Court No. 24CV30466 Honorable Laurie K. Dean, Judge
Richard Ball, resident of the City of Loveland, Dave Clark, resident of the City of Loveland, John Fogle, resident of the City of Loveland, Donald Overcash, resident of the City of Loveland, Daniel Mills, resident of the City of Loveland, Chauncey Taylor, resident of the City of Loveland, Christy Taylor, resident of the City of Loveland, and Claire Haenny, resident of the City of Loveland,
Plaintiffs-Appellants,
v.
City of Loveland,
Defendant-Appellee.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE WELLING Gomez and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 8, 2026
Sinnett Law Office, LLC, Russell W. Sinnett, Loveland, Colorado, for Plaintiffs- Appellants
Nathan Dumm & Mayer PC, Nicholas C. Poppe, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiffs, Richard Ball, Dave Clark, John Fogle, Donald
Overcash, Daniel Mills, Chauncey Taylor, Christy Taylor, and Claire
Haenny, appeal the district court’s judgment dismissing their
complaint against defendant, City of Loveland, pursuant to
C.R.C.P. 12(b)(1). We affirm and remand the case for the district
court to determine and award Loveland its appellate attorney fees
and costs.
I. Background
¶2 This case involves Loveland’s plans to build a multi-use
development known as Centerra South on 139 acres of land. In
May 2023, the Loveland City Council passed two resolutions
regarding Centerra South: (1) R-50-2023, which designated and
approved a new urban renewal plan for the development; and
(2) R-54-2023, the development’s master financing and
intergovernmental agreement (MFA). On November 7, 2023,
Loveland held a citywide election where the voters approved ballot
question 301, which amended the Loveland city charter to require
that any change or modification to an urban renewal plan must be
subsequently ratified by a vote of Loveland’s eligible electors before
taking effect. Ballot question 301 is now codified as section 15-9 of
1 the Loveland City Charter and became effective immediately upon
passage.
¶3 On November 21, 2023, the Loveland City Council voted to
repeal R-50-2023 and R-54-2023. Five days later, the Centerra
South developer sued Loveland in Larimer County District Court,
Case No. 23CV30956, asserting claims for “breach of contract,
unlawful termination of the [u]rban [r]enewal [p]lan and MFA,
unlawful procedure by the Council, relief under the [c]harter
provisions, declaratory judgment, and violation of the contract
clauses contained in the United States and Colorado Constitutions.”
Then in February 2024, after the developer tendered a settlement
offer to Loveland in that case, the City Council approved a motion to
rescind the November 21, 2023, motions that repealed R-50-2023
and R-54-2023, thereby reinstating the two Centerra South
resolutions that had been adopted in May 2023.
2 ¶4 In June 2024, plaintiffs filed their complaint against Loveland
in Larimer County District Court.1 Plaintiffs are all eligible electors
of Loveland. In their complaint, plaintiffs asserted three claims for
relief. First, they sought a declaratory judgment against Loveland
that the “relevant actions or inactions by the Council on November
21, 2023, as they pertain to the rescission of the [r]esolutions
involving Centerra South must be declared invalid, void, and of no
effect because those actions directly violated the [c]harter, and other
applicable laws or procedures of the Council itself.” They also
sought an injunction against the City Council from taking any
further action on the two resolutions.
¶5 Second, plaintiffs alleged that the City Council’s repeal of R-
50-2023 and R-54-2023 on November 21, 2023, violated plaintiffs’
due process rights under the United States and Colorado
Constitutions because, among other reasons, they were adopted
without a vote of the electorate, as required by then-recently
1 Plaintiffs initially filed their complaint in Loveland Municipal
Court. That court then assigned the case to Greeley Municipal Court under an Intergovernmental Agreement for Judicial Administrative Services. The Greeley court then found that it didn’t have jurisdiction and dismissed the case. Plaintiffs ultimately refiled their complaint in Larimer County District Court.
3 approved ballot question 301, now codified as section 15-9 of the
Loveland City Charter. For this claim, plaintiffs sought a judgment
declaring the City Council’s actions “to be null, void, and of no
effect” because they had violated plaintiffs’ due process rights as
eligible electors of Loveland.
¶6 Third, plaintiffs alleged that the City Council’s repeal of R-50-
2023 and R-54-2023 on November 21, 2023, constituted a breach
of its fiduciary duty under section 24-18-103, C.R.S. 2025. For this
claim, plaintiffs sought a judgment declaring the City Council’s
repeal of the two resolutions “to be null, void, and of no effect”
because the City Council members had violated their fiduciary
duties by repealing the resolutions without a vote of the eligible
electors of Loveland.
¶7 Plaintiffs also sought remedies available under section 3-3 of
the Loveland City Charter, which provides that no person who “has
been convicted of . . . a willful violation” of the City Charter “shall be
nominated or elected as [m]ayor or [c]ouncil member,” City of
Loveland Charter § 3-3(c), and a declaratory judgment that the
“Mayor and each Council member shall continue to meet the
4 requirements of this section throughout the term of office.” Id. § 3-
3(f).
¶8 In July 2024, Loveland filed a motion to dismiss plaintiffs’
complaint under C.R.C.P. 12(b)(1). In it, Loveland argued that
plaintiffs lacked standing to bring their complaint and, even if
plaintiffs had standing, their claims were moot because in February
2024, the City Council rescinded the November 21, 2023, motions
that repealed the Centerra South resolutions. In other words,
plaintiffs received all the relief they were seeking in their complaint
when the City Council adopted the recission measures in February
2024.
¶9 Plaintiffs responded that their claims weren’t moot because
the settlement agreement in the developer’s case, pursuant to which
the City Council agreed to rescind the November 21, 2023, motions,
wasn’t yet completed and the agreement did nothing to restore
plaintiffs’ right to vote.
¶ 10 The district court granted Loveland’s motion to dismiss in a
written order and dismissed the case with prejudice. Regarding
standing, the district court found that plaintiffs had established
standing for their first claim. The district court then found that
5 plaintiffs had standing for only part of their second claim and didn’t
have standing for their third claim. Plaintiffs don’t appeal the
district court’s standing determinations. Regarding mootness, the
district court found that all the claims that plaintiffs had standing
to assert were moot because “the relief sought in this complaint
ha[d] already been achieved: the November 21, 2023 rescissions
have been, in effect, voided by subsequent City Council action.”
II. Analysis
¶ 11 On appeal, plaintiffs contend that the district court erred in
dismissing their complaint based on mootness. Specifically,
plaintiffs argue that (1) the district court erred in determining that
the case was moot; and (2) even if the case was mooted by the
events of February 2024, the district court erred by failing to
consider and apply two exceptions to mootness and permit the case
to proceed. We aren’t persuaded by either contention.
A. Standard of Review and Legal Principles
¶ 12 We review de novo the legal question of whether a case is
moot. Colo. Mining Ass’n v. Urbina, 2013 COA 155, ¶ 23.
“Mootness is a jurisdictional prerequisite that can be addressed at
any stage during the proceedings.” Diehl v. Weiser, 2019 CO 70,
6 ¶ 9. “A case is moot when the relief sought, if granted, would have
no practical legal effect on an existing controversy.” People in
Interest of L.O.L., 197 P.3d 291, 293 (Colo. App. 2008). “Courts
must confine their exercise of jurisdiction to cases that present a
live case or controversy.” Davidson v. Comm. for Gail Schoettler,
Inc., 24 P.3d 621, 623 (Colo. 2001). In sum, if a case is moot, a
court will ordinarily refrain from addressing it. Trinidad Sch. Dist.
No. 1 v. Lopez, 963 P.2d 1095, 1102 (Colo. 1998).
B. Mootness
¶ 13 We begin by addressing plaintiffs’ contention that their claims
aren’t moot.2 We conclude that they are.
¶ 14 As discussed above, plaintiffs assert in their complaint that
the Loveland Mayor and City Council members used an “improper
procedure” to repeal R-50-2023 and R-54-2023 and therefore
2 As noted above, the district court dismissed part of plaintiffs’
second claim and their entire third claim on the basis that they lacked standing. In their opening brief, plaintiffs seem to baldly contend that they have standing to assert all of their claims. But they don’t develop any argument challenging the district court’s standing determination. Accordingly, we don’t address their undeveloped standing argument. See, e.g., People v. Cuellar, 2023 COA 20, ¶ 44 (declining to address on appeal an undeveloped argument).
7 deprived the eligible electors of Loveland of their right to vote.3
Notwithstanding that the allegedly improper repeal has itself been
rescinded, plaintiffs argue that the case isn’t moot because their
injury — namely, that they were denied their right to vote — wasn’t
cured by the February 2024 rescission of the City Council’s actions
taken on November 21, 2023. They further argue that the district
court incorrectly determined that the settlement pursuant to which
the repeal of the resolutions was rescinded returned plaintiffs to the
“status quo.” Finally, plaintiffs assert that in addition to the
nullification of the rescissions, they sought “a declaration that the
November 21 [repeal] was willful and unlawful” and that such a
declaration would “carr[y] significant legal weight” because the City
Council’s November 21, 2023, actions deprived the eligible electors
of Loveland of their right to vote.
3 Specifically, plaintiffs assert that no “notice regarding a public
hearing on [the November 21, 2023] motions was published in a newspaper.” They also assert that the mayor limited debate on the motions to only ten minutes and used the majority of that time to speak in support of them. They conclude by alleging that the mayor overruled other City Council members’ objections that the procedure was improper.
8 ¶ 15 Essentially, Plaintiffs argue that their complaint isn’t moot
because they are seeking (and are entitled to) a declaration that
what the City Council did on November 21, 2023, was wrong. The
remedy they sought in their complaint, however, is a declaration
that the City Council’s actions on November 21, 2023, as they
pertain to the rescission of the Centerra South resolutions, are
“invalid, void, and of no effect because those actions violated the
charter.”4 And because the Centerra South resolutions are now
reinstated, and the repeal was rescinded, the declaration that
plaintiffs seek would have “no practical legal effect upon the
existing controversy.” Van Schaack Holdings, Ltd. v. Fulenwider,
798 P.2d 424, 426 (Colo. 1990); see Stor-N-Lock Partners #15, LLC v.
City of Thornton, 2018 COA 65, ¶ 39 (explaining that when
evaluating whether a case is moot, “we ask whether obtaining the
relief would matter”; “[i]f not, the case is moot”).
¶ 16 Put succinctly, a request for a judicial determination that what
the City Council did was unlawful doesn’t save plaintiffs’ complaint
from the clutches of mootness. In San Juan Hut Systems, Inc. v.
4 In their complaint, plaintiffs expressly disclaim that they are
seeking monetary damages as part of their suit.
9 Board of County Commissioners, 2023 COA 10, ¶ 32, the plaintiff
sought “a declaratory judgment that the [c]ounty had exceeded its
statutory authority” when the county closed a road and adopted a
winter maintenance agreement (WMA) for landowners along that
road. The plaintiff also sought “an injunction to prevent any
actions taken in excess of that authority.” Id. After the appeal was
filed, the General Assembly amended a statute to authorize the
county to close roads. Id. at ¶ 22. A division of this court held that
because the amended statute now grants the county the statutory
authority to enter these WMAs, “an appellate decision in [the
plaintiff’s] favor regarding the previous statute would have no
practical effect on the controversy as it exists now.” Id. at ¶ 32.
The same is true here. A declaration that what the City Council did
on November 21, 2023, was unlawful would have no practical effect
on the controversy, given that what it did on November 21, 2023,
has been undone. Cf. Castillo v. STEM Sch. Highlands Ranch, 2025
COA 88, ¶¶ 12, 62 (concluding that the district court didn’t err in
dismissing the plaintiffs’ claims as moot when the parties
conducted robust discovery and the defendant agreed to pay the
10 plaintiff the maximum amount of monetary damages under the
applicable statute, even though the defendant didn’t admit liability).
¶ 17 Plaintiffs also argue that the City Council’s actions deprived
them and other eligible electors of Loveland of their right to vote
and because this right hasn’t been restored, the case isn’t moot.
But because the resolutions were reinstated, there is nothing for
the eligible electors of Loveland to vote on. Indeed, the remedy
plaintiffs sought belies that a vote was the gravamen of their
complaint. They didn’t seek a vote. Instead, they sought a
nullification of the City Council’s actions — which is exactly what
11 was achieved in February 2024, rendering their claims moot. The
eligible electors of Loveland have been returned to the status quo.5
¶ 18 Finally, it appears that plaintiffs assert that their claims aren’t
moot because of the voluntary cessation doctrine. See Portley-El v.
Colo. Dep’t of Corr., 2022 COA 86, ¶ 19 (explaining the policy
behind the voluntary cessation doctrine — “if a defendant’s
voluntary cessation of a challenged practice could deprive a court of
its power to determine the legality of the practice, then in each case,
the defendant would be ‘free to return to [its] old ways’” (quoting
5 In their complaint, plaintiffs also seem to request a remedy under
section 3-3(c) of the Loveland City Charter, which provides that “[n]o person who has been convicted of . . . a willful violation of this [c]harter[] shall be nominated or elected as [m]ayor or [c]ouncil member.” Plaintiffs’ counsel also mentioned this potential relief at oral argument. In their opening brief on appeal, however, plaintiffs didn’t invoke this requested relief as providing a basis for saving their case from being rendered moot. Given the language of the provision — that a “conviction” is required — and that only the city (and none of the individual council members or the mayor) are parties to this case, it’s understandable that they didn’t advance any such argument in their opening brief. In any event, because plaintiffs don’t develop such an argument in their opening brief, we don’t address it any further. See, e.g., Cuellar, ¶ 44; cf. People v. Owens, 2024 CO 10, ¶ 90 (“[I]t is well-settled that an appellate court will not consider arguments raised for the first time in a reply brief . . . .”); Campaign Integrity Watchdog LLC v. Griswold, 2025 COA 18, ¶ 58 (declining to address arguments raised for the first time during oral argument).
12 Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 189 (2000))). But this assertion isn’t developed on appeal.
Indeed, it only spans a single cursory sentence in plaintiffs’ opening
brief.6 We may decline to address it on this basis alone. See People
v. Cuellar, 2023 COA 20, ¶ 44 (we don’t address undeveloped
arguments). Even so, in looking at the merits of the voluntary
cessation doctrine, we don’t see how it applies to the facts of this
case.
6 The only case that plaintiffs cite in support of their voluntary
cessation argument in their opening brief is City of Erie v. Pap’s A.M., 529 U.S. 277, 288-89 (2000). In the explanatory parenthetical accompanying their citation, plaintiffs claim that the case stands for the proposition that “a case is not moot when the city repealed an unlawful ordinance during litigation; the city remained ‘free to reenact’ the offending ordinance after dismissal, so the dispute was alive.” But City of Erie doesn’t stand for that proposition. In City of Erie, the city had enacted an ordinance banning public nudity, and Pap’s, “a nude dancing establishment,” filed suit to enjoin enforcement of the ordinance and have it declared unconstitutional. Id. at 282-83. Ultimately, the Pennsylvania Supreme Court struck down the ordinance. Id. at 283. After the United States Supreme Court granted certiorari, Pap’s ceased operations. Id. at 287. It was based on this cessation of operations that Pap’s — not the city — sought to have the case dismissed as moot. Id. In addressing mootness, the Court determined that the case wasn’t rendered moot by Pap’s ceasing operations. Id. at 287-89. Thus, contrary to plaintiffs’ characterization of the case, the city never repealed the ordinance, and the Court’s mootness analysis had nothing to do with voluntary action on the city’s part. Id.
13 ¶ 19 The City Council’s rescission of the November 21, 2023,
motions doesn’t have the markers of voluntary cessation for three
reasons. First, Loveland has “actually changed or rescinded the
challenged policy” rather than merely stopped enforcing it. See
Portley-El, ¶ 23. Second, the motions have been fully rescinded
such that there is no discretionary enforcement. See id. Third, and
perhaps most importantly, Loveland contends, and plaintiffs don’t
contest, that Loveland’s cessation was part of a settlement
agreement. In other words, Loveland has “formally agreed” to
rescind the November 21, 2023, motions, and it will presumably
face adverse consequences in the form of a breach of contract claim
if it attempts to again repeal the resolutions. Id. at ¶ 32. For all
these reasons, we reject plaintiffs’ voluntary cessation contention.
¶ 20 Accordingly, we agree with the district court’s determination
that the case is moot.7
7 Plaintiffs also argue that the district court erred “when it applied
facts from a separate and distinct legal dispute to render” their claims moot. But they don’t explain why the court erred in this way or cite any support for this contention. So we decline to address this undeveloped argument further. See Cuellar, ¶ 44.
14 C. Mootness Exceptions
¶ 21 Next we address plaintiffs’ contention that two exceptions to
the mootness doctrine should be applied to their complaint and
save it from dismissal. Those two exceptions are “(1) when the
matter involves an issue that is capable of repetition, yet evading
review; or (2) when the matter involves a question of great public
importance or recurring constitutional violations.” Anderson v.
Applewood Water Ass’n, 2016 COA 162, ¶ 27. Plaintiffs argue on
appeal that both of these mootness exceptions apply to this case
and that the district court erred by failing to address them.
Loveland responds that this argument is unpreserved because
plaintiffs had the opportunity to, but didn’t, raise either exception
to the district court. We agree that plaintiffs had the opportunity to
raise these exceptions before the district court but didn’t do so.
Nevertheless, because, for the reasons discussed below, we
conclude that the exceptions don’t apply to this case, we need not
— and, therefore, don’t — decide whether plaintiffs’ failure to
preserve this argument before the district court waives it on appeal.
See In re Marriage of Mack, 2022 CO 17, ¶ 12.
15 ¶ 22 First, plaintiffs argue that their case isn’t moot because it’s
capable of repetition yet evades review: “[T]he Loveland City Council
will almost always act more quickly that [sic] a case being litigated
in district court” and “the conditions that gave rise to this dispute
can easily happen again.” But plaintiffs don’t further explain these
conclusory assertions. Nor are we persuaded that either is correct.
Indeed, the history of this dispute demonstrates otherwise, as the
case initiated against the city by the Centerra South developer
spanned several months before terminating in a binding settlement,
and the binding settlement itself undermines the contention that
the dispute will arise again. In sum, plaintiffs haven’t shown that
(1) their case is likely to recur in the future or that (2) “the time
required to complete the legal process will necessarily render each
specific challenge moot.” Anderson, ¶ 28 (quoting Rocky Mountain
Ass’n of Credit Mgmt. v. Dist. Ct., 565 P.2d 1345, 1346 (Colo. 1977)).
¶ 23 Second, plaintiffs argue that their case involves a matter of
great public importance — namely, “[t]he electorate’s right to vote
on significant public projects, the enforcement of the City’s
[c]harter, and the integrity of Council actions.” They assert that the
“public interest in having this controversy decided is substantial”
16 because it “would provide much-needed clarity on the requirements
of Loveland’s Charter and the rights of citizens if the City Council
violates the law, particularly willfully.” But plaintiffs don’t assert in
their complaint that the City Charter is vague and needs
clarification. Indeed, the city’s capitulation in rescinding the
November 2023 repeal indicates a clear understanding of what is
required by section 15-9 of the Loveland City Charter. Thus,
although the right of the electorate to vote writ large is certainly an
issue of great public concern, the discreet issue here — whether
section 15-9 of the Loveland City Charter required a vote of the
public before the measures adopted in November 2023 were
enacted — isn’t particularly weighty or in need of judicial
clarification. Cf. Humphrey v. Sw. Dev. Co., 734 P.2d 637, 640
(Colo. 1987) (“The jurisdictional dispute before us is significant for
future water court proceedings . . . and is of public importance
statewide.”); People in Interest of C.G., 2015 COA 106, ¶ 44
(concluding that “the issue of what efforts due diligence requires
before a parent may be served by publication under” a statute
“affects parental rights of constitutional magnitude” and thus falls
under this exception); Combs v. Nowak, 43 P.3d 743, 744 (Colo.
17 App. 2002) (“[D]elaying . . . review would cause uncertainty
regarding the composition of the city government. Thus, we
conclude that the matter . . . involves a question of great public
importance to the citizens of Central City.”). Therefore, we conclude
that this case doesn’t present an issue of great public importance
such that the case should proceed notwithstanding having been
rendered moot.
¶ 24 Accordingly, we reject plaintiffs’ argument that either of the
two mootness exceptions apply to their case and conclude that the
district court didn’t err in not addressing them in its order
dismissing the case.
D. Appellate Attorney Fees and Costs
¶ 25 Loveland requests its reasonable attorney fees and costs for
the defense of this appeal. It argues that because the district court
awarded attorney fees to Loveland pursuant to section 13-17-201,
C.R.S. 2025, it’s entitled to recover reasonable attorney fees and
costs for successfully defending the appeal. We agree. The district
court awarded Loveland its reasonable attorney fees and costs
under section 13-17-201, which provides that an award of attorney
fees is mandatory when a district court dismisses a tort action
18 under C.R.C.P. 12(b).8 In turn, “[a] party who successfully defends
a dismissal order is entitled to recover reasonable attorney fees
incurred on appeal.” Kreft v. Adolph Coors Co., 170 P.3d 854, 859
(Colo. App. 2007). We therefore remand to the district court to
determine the amount of reasonable attorney fees and costs
Loveland incurred in this appeal. Id.; C.A.R. 39.1.
¶ 26 Finally, in responding to Loveland’s request for fees, plaintiffs
assert that the district court’s order awarding attorney fees and
costs was in error because their claims weren’t groundless,
frivolous, or vexatious. We reject this contention for two reasons.
First, the district court’s attorney fees order isn’t the subject of this
appeal, so we don’t have jurisdiction to review the merits of the
attorney fees order the district court entered against plaintiffs. See,
e.g., Woodall v. Godfrey, 2024 COA 42, ¶ 51 n.8 (holding that
failure to separately appeal the award of attorney fees deprives this
court of jurisdiction to consider the issue (first citing Kennedy v.
8 In its order granting Loveland’s motion for attorney fees, the
district court found that plaintiffs’ declaratory judgment claim was nontort, and their due process and statutory breach of fiduciary duty claims were tort. Therefore, it found that the “essence of the action is tortious in nature” and section 13-17-201, C.R.S. 2025, applied.
19 Gillam Dev. Corp., 80 P.3d 927, 929 (Colo. App. 2003); and then
citing Dawes Agency, Inc. v. Am. Prop. Mortg., Inc., 804 P.2d 255,
257 (Colo. App. 1990))). Second, plaintiffs’ focus on the lack of
groundlessness, frivolity, or vexatiousness of their claims misses
the mark, as fees weren’t awarded on that basis, but instead
because the court dismissed a complaint sounding in tort pursuant
to C.R.C.P. 12(b). Compare § 13-17-201(1) (mandating an award of
attorney fees in tort actions when the case is dismissed pursuant to
C.R.C.P. 12(b) prior to trial), with § 13-17-102(2), C.R.S. 2025
(mandating an award of fees where a party brings or defends a civil
action that “lacked substantial justification”).
III. Disposition
¶ 27 The judgment is affirmed, and the case is remanded for the
district court to determine and award Loveland its reasonable
appellate attorney fees and costs.
JUDGE GOMEZ and JUDGE SULLIVAN concur.