24CA1353 Barsim v Doremus 12-11-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1353 Pitkin County District Court No. 22CV30032 Honorable Christopher G. Seldin, Judge
Barsim LLC, a Colorado limited liability company; Glen Eagles Drive LTD., a Guernsey limited company; and Stonefield Properties LLC, a Delaware limited liability company,
Plaintiffs-Appellants,
v.
Andrew J. Doremus and Jeanne C. Doremus,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE TOW Moultrie and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 11, 2025
Ferguson Schindler Law Firm, P.C., Michelle K. Schindler, Ryan J. Dougherty, Aspen, Colorado, for Plaintiffs-Appellants
Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Brad W. Schacht, Nicholas Gunther, Denver, Colorado, for Defendants-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Plaintiffs, Barsim LLC, Glen Eagles Drive LTD., and Stonefield
Properties LLC (collectively, the homeowners),1 appeal the trial
court’s order denying the homeowners’ request for injunctive relief
or, in the alternative, request for damages against defendants,
Andrew J. Doremus and Jeanne C. Doremus. We affirm.
I. Background
¶2 We glean the following facts from the evidence presented at,
and the trial court’s findings following, a two-day bench trial.
A. Pitkin County Proceedings
¶3 The Doremuses wanted to split their property into two
separate lots with plans to eventually build a home on the second
lot. They requested signatures from the homeowners — each of
which owns a home adjacent to the Doremuses’ property — to
support the intended lot split. The homeowners, individually,
signed letters supporting the lot split and amendment to the plat
map. These letters were submitted to Pitkin County as part of the
1 During trial court proceedings, the following persons testified as
the authorized representatives and residents of these respective properties: (1) Julie and Steve Schlafer testified for Barsim; (2) Jeffrey and Valerie Montgomery testified for Glen Eagles Drive; and (3) Rachael and Daniel Klein testified for Stonefield.
1 “Doremus Subdivision and Planned Unit Development Land Use
Application” (land use application). In the land use application, the
Doremuses “request[ed] to be awarded 5,750 square feet of gross
floor area for a new lot,” with the house “limited to 4,750 square
feet of floor area” plus 1,000 feet of garage and subgrade area.
¶4 The Pitkin County Planning and Zoning Commission (the
Zoning Commission) set a public hearing to review the land use
application (the zoning hearing). The Doremuses’ land planner,
Glenn Horn, mailed notices for the zoning hearing to the
homeowners and three other neighbors who are not parties to this
litigation. Horn also published the same notice in the Aspen Times
Weekly. And Horn posted public notice signs at the end of the
Doremuses’ driveway stating the date, time, and purpose of the
zoning hearing. None of the homeowners appeared at the zoning
hearing. The Zoning Commission unanimously recommended that
the Pitkin County Board of County Commissioners (the Board)
approve the application.
¶5 Following the zoning hearing, the Doremuses once again
approached the homeowners to request signatures for a second set
2 of letters supporting the lot split. Steve Schlafer and Jeffrey
Montgomery signed the letters on behalf of their respective entities.
¶6 The Board set a public hearing to consider the land use
application (first Board hearing). Horn once again mailed notices to
the homeowners and nonparty neighbors, published the notice in
the Aspen Weekly Times, and posted a public notice sign at the end
of the Doremuses’ driveway. None of the homeowners appeared at
the first Board hearing.
¶7 After considering the land use application at the first Board
hearing, and again during a second reading at a regular meeting
one month later, the Board passed Resolution No. 018-2017, which
granted the lot split and request for 5,750 square feet of gross floor
area on the second lot, subject to compliance with county
standards. Resolution No. 018-2017 was recorded in the real estate
records one month later.
¶8 The Doremuses submitted a final application per county
requirements. The Zoning Commission considered the final
application at a regular meeting and unanimously recommended
approval. The Board then introduced and read the Doremuses’
final application at a public hearing (second Board hearing). Again,
3 Horn had mailed notices of this hearing to the homeowners and
nonparty neighbors and published the notice in the Aspen Weekly
Times.2 A few weeks later, the Board held a third public hearing
(third Board hearing), at which it conducted a third reading of the
final application and adopted it the same day. None of the
homeowners appeared at the second or third Board hearing. The
Board then passed Resolution No. 141-2018, which constituted the
final approval for the Doremuses’ requested lot split and request for
5,750 square feet of gross floor area. Resolution No. 141-2018 was
recorded in the real estate records one month later.
B. Trial Court Procedural History
¶9 Approximately three years later, the Doremuses offered to sell
the second lot to the Montgomerys and Kleins. The homeowners
alleged this was the first time they were made aware that the
Doremuses had sought and received approval for 5,750 square feet
of floor area. The homeowners stated that throughout the
application proceedings the Doremuses represented that they
2 The trial court noted that while Horn testified that he included a
picture of the public notice sign for the second Board hearing, no such photo was in the file.
4 intended to build a 2,500 square-foot home on the second lot if the
split was successful and that this representation prompted the
homeowners’ willingness to sign the letters of support.
¶ 10 The homeowners filed a complaint alleging three claims:
(1) fraudulent misrepresentation; (2) fraudulent concealment; and
(3) unjust enrichment. The homeowners sought to “permanently
enjoin[] [the Doremuses], and any successor-in-interest, from
developing the Subdivided Lot to construct any structures currently
permitted as a result of the [land use] Application.” In the
alternative, the homeowners sought “damages . . . in an amount at
least equal to the reduction in value of [the homeowners’] respective
properties by reason of [the Doremuses’] ability to develop the
Subdivided Lot.”
¶ 11 The matter was set for a bench trial. Eleven days before it was
set to begin, the trial court entered an order requesting the parties
“initially present evidence concerning notice issues” because it
considered that “a threshold issue[] that may be determinative and
render evidence on other issues unnecessary.” On the first day of
trial, the court noted that it “may well be more efficient for the
Plaintiffs who are called to testify to address all the elements of
5 reasonable reliance when they come up and testify about notice.”
The parties agreed, and the court allowed the homeowners to testify
about both reliance and notice. Following the bench trial, the trial
court issued oral findings and conclusions in favor of the
Doremuses on all claims.
¶ 12 The trial court followed with a written order memorializing its
oral ruling. It found that the homeowners had received the mailed
notices of the public hearings, and the Doremuses had both posted
and published notices of the public hearings. The court further
found that the complaint was a collateral attack on the Board’s
approval of the Doremuses’ application. Based on these factual
findings, the trial court concluded:
• The homeowners’ claims failed for lack of subject matter
jurisdiction because C.R.C.P. 106(a)(4) “provide[d] the
exclusive remedy under Colorado law for challenging
quasi-judicial decisions of a local government.”
• The homeowners could not prevail on the justifiable
reliance element of their fraudulent representation and
fraudulent concealment claims.
6 • Stonefield’s claims were barred because they had
constructive notice of the land application approval.3
• The homeowners could not prevail on their unjust
enrichment claim because they could not prove that it
was unjust for the Doremuses to retain the benefit of the
approvals.
¶ 13 This appeal followed.
II. Jurisdiction
¶ 14 The homeowners argue the trial court erred by ruling that it
did not have subject matter jurisdiction over the homeowners’
claims. We agree in part but find the trial court’s error was
harmless.
A. Applicable Law and Standard of Review
¶ 15 C.R.C.P 106(a)(4) provides the exclusive remedy for
challenging quasi-judicial decisions of a local government. Freed v.
Bonfire Ent. LLC, 2024 COA 65, ¶ 12. Quasi-judicial actions involve
“the determination of the rights, duties, or obligations of specific
3 The previous owners, Kurt and Ann Hall, conveyed the Stonefield
Lot to Stonefield on November 12, 2020, approximately two years after the passage of Resolution No. 141-2018.
7 individuals on the basis of the application of presently existing legal
standards or policy considerations to past or present facts
developed at a hearing conducted for the purpose of resolving the
particular interests in question.” Farmers Water Dev. Co. v. Colo.
Water Conservation Bd., 2015 CO 21, ¶ 18 (quoting Cherry Hills
Resort Dev. Co. v. City of Cherry Hills Village, 757 P.2d 622, 625
(Colo. 1988)). Rule 106(a)(4) provides an avenue for reviewing the
actions of governmental bodies or officers — not the actions of
private parties. Freed, ¶ 14. A complaint seeking review under this
rule shall be filed in the district court within twenty-eight days of
the final decision of the governmental body. C.R.C.P. 106(b).
¶ 16 “We review de novo a [trial] court’s determination that it lacks
subject matter jurisdiction.” Freed, ¶ 13. And “[b]ecause the [trial]
court exercises no factfinding authority in [Rule 106(a)(4)] cases,”
we are not bound by any of the lower court’s determinations.
Carney v. Civ. Serv. Comm’n, 30 P.3d 861, 863 (Colo. App. 2001).
B. Analysis
¶ 17 The homeowners contend the trial court erred by finding that
their claims were a collateral attack on the Board’s decision and
therefore subject to the Rule 106(b) deadline.
8 ¶ 18 The trial court’s determination that the homeowners’ claims
constituted a collateral attack on the Board’s action stemmed from
the homeowners’ request for injunctive relief, wherein the
homeowners asked the trial court to “vacat[e] the approval issued
by the [Board].” The trial court noted that this proposed remedy
“results in the Doremuses having to go back to the Board to reargue
the issue with the participation of the [homeowners]” and that this
“would be the typical relief granted in the event that the Court were
to overturn [the Board’s] decision under Rule 106(a)(4).”
¶ 19 The homeowners argue that the trial court misinterpreted
their requested relief. The homeowners contend that rather than
“vacat[ing] the approval issued by the [Board],” they instead “sought
to enjoin the Doremuses from developing the Subdivided Lot in
accordance with the land use approvals that were obtained by
fraud.” According to the record, this is one part of their requested
relief as the homeowners asked for “a restriction in covenant that
would limit the development to what Andrew Doremus’s
misrepresentations were.” But, notably, the homeowners confirmed
that the primary relief they sought involved “redo[ing] the process in
front of the governmental authority of jurisdiction.” Therefore, the
9 trial court was correct in concluding that the requested relief
involved vacating the Board’s approval of the Doremuses’ land use
application.
¶ 20 And we agree that based on the injunctive relief sought, these
were requests for review of a quasi-judicial function of the Board.
Granting the Doremuses’ land use application required the Board to
determine the rights and duties of particular individuals in a
specific factual context, which they then considered when applying
the existing legal framework to their zoning request. See Freed,
¶ 17. “These are the hallmarks of a quasi-judicial function of a
governmental body,” and any challenge specific to the land use
application and zoning request should have been raised within
twenty-eight days of the Board’s final approval. Id. at ¶¶ 17-18.
Thus, to the extent the homeowners’ complaint sought to force a
return to the Board, the trial court did not err by rejecting the claim
as an untimely challenge under Rule 106(a)(4).
¶ 21 However, the homeowners additionally argue, and we agree,
that the monetary request for relief against the Doremuses falls
outside of the boundaries of a Rule 106(a)(4) review. See, e.g.,
Sundheim v. Bd. of Cnty. Comm’rs, 904 P.2d 1337, 1345 (Colo. App.
10 1995) (holding a plaintiff’s claim for monetary damages under 42
U.S.C. § 1983 was distinct from any Rule 106(a)(4) claim), aff’d, 926
P.2d 545 (Colo. 1996). Nevertheless, any error in considering the
homeowners’ request for monetary damages to be barred by a lack
of jurisdiction was harmless because the trial court went on to
reach the merits of the claims.
III. Justifiable Reliance
¶ 22 The homeowners contend the trial court erred when it found
they could not justifiably rely on the Doremuses’ representation of
their lot size. We disagree.
A. Standard of Review and Applicable Law
¶ 23 The parties disagree as to the applicable standard of review.
The homeowners contend that this “issue challenges the trial
court’s legal conclusions on justifiable reliance, and, therefore the
review is de novo.” The Doremuses argue that reliance on a
misrepresentation is a question of fact that we review for clear
error, and the factual findings are binding if they are supported by
the record. We agree with the Doremuses. See M.D.C./Wood, Inc. v.
Mortimer, 866 P.2d 1380, 1382-83 (Colo. 1994).
11 ¶ 24 “Common to both fraudulent concealment and fraudulent
misrepresentation is the element of reliance.” Nielson v. Scott, 53
P.3d 777, 780 (Colo. App. 2002). In the former scenario, reliance
lies in the plaintiff’s assumption that the concealed fact does not
exist. Id.; see Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs
LLP, 2018 CO 54, ¶ 56. The latter requires a showing that the
“defendant made a fraudulent misrepresentation of material fact
[that] the plaintiff relied on.” Barnes v. State Farm Mut. Auto. Ins.
Co., 2021 COA 89, ¶ 28.
¶ 25 “A party’s reliance on a purported misrepresentation is not
justified when the party is aware of or on inquiry notice of the
falsity of the representation.” Rocky Mountain Expl., Inc., ¶ 53. Put
another way, “[i]f the plaintiff has access to information that was
equally available to both parties and would have led to discovery of
the true facts, the plaintiff has no right to rely upon the
misrepresentation.” Balkind v. Telluride Mountain Title Co., 8 P.3d
581, 587 (Colo. App. 2000) (emphasis added).
12 B. Analysis
1. The Homeowners Had Equal Access to the Truth
¶ 26 The homeowners argue the trial court erred when it found that
they had equal access to the truth — namely, that the Doremuses
sought approval for a 5,750 square foot area as opposed to a 2,500
square foot area.4
¶ 27 The homeowners attempt to distinguish the facts underlying
this case from those in M.D.C./Wood and Neilson. They contend
that the parties in those cases had equal access to information
because they were “actually ‘given’ the correct information” and that
access to a public file is not categorically the same.
¶ 28 Notably, the trial court found that the Doremuses’ lot-size
information was given to the homeowners, and thus became equally
available, when they received the mailed notices for the public
hearings. Specifically, the court noted that the first Board hearing
notice explicitly detailed that the Doremuses were pursuing “a
growth management allotment of 4,750 square feet of floor area for
4 Notably, throughout the homeowners’ lengthy recitation of the
factual background in their briefing, they never acknowledge or discuss the factual findings made by the trial court.
13 a single-family residence on a newly subdivided lot.” And despite
the homeowners’ claims that they never received the notice, the
court found otherwise after hearing testimony from Horn and the
nonparty neighbors. Horn testified that he mailed a notice of each
hearing to the individual homeowners. Horn also testified that after
suit was filed, he checked the county records to see if any notices
had been returned as undeliverable, and the only letter that was
returned had been sent to a neighbor who had moved away.5
Finally, the nonparty neighbors all confirmed their receipt of the
mailed notices for the relevant hearings, which the court considered
to be “the most credible [testimony],” given “none of [them] have a
horse in this race.”
¶ 29 Because there is record support for the trial court’s finding, we
cannot disturb it. See M.D.C./Wood, Inc., 866 P.2d at 1382.
Further, in light of the court’s finding, we agree that the
homeowners’ actual notice of the requested square footage of floor
5 That neighbor is not party to this appeal.
14 area means that they failed to demonstrate justifiable reliance. See
Rocky Mountain Expl., Inc., ¶ 53.6
2. The Trial Court Did Not Abuse its Discretion in Bifurcating the Trial
¶ 30 The homeowners additionally contend the trial court erred by
bifurcating the trial and limiting the bench trial to the issue of
notice. In support of this claim, the homeowners merely state that
the trial court “cut short evidence it deemed not relevant to notice”
and that this limitation meant the trial court “failed to consider all
of the circumstances as required and erred as a matter of law.”
¶ 31 We review a trial court’s bifurcation of a trial for an abuse of
discretion. Martin v. Minnard, 862 P.2d 1014, 1016 (Colo. App.
1993). “A trial court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, unfair, or based on a
misapplication of the law.” Black v. Black, 2020 COA 64M, ¶ 118.
6 The homeowners’ reliance on the pattern jury instruction
regarding the duty to investigate, see CJI-Civ. 19:10 (2025), is unavailing. Because the trial court found, with record support, that they had been informed of the proposed square footage in the Doremuses’ request and, thus, had the “‘inquiry notice’ that [the jury instruction] embodies,” id. cmt. 3, the court’s conclusion is not contrary to the legal principles underlying that jury instruction.
15 ¶ 32 The homeowners do not explain how the trial court’s conduct
of the trial or its evidentiary rulings constituted an abuse of
discretion. See Murray v. Just In Case Bus. Lighthouse, LLC, 2016
CO 47M, ¶ 16. And the trial court ultimately allowed the
homeowners to testify about reasonable reliance as well as notice
during the bench trial. Thus, the trial court considered evidence
beyond what was relevant to notice, and to the extent the
homeowners contend otherwise, we find their assertion is
undeveloped and decline to address it. See Sanchez v. Indus. Claim
Appeals Off., 2017 COA 71, ¶ 41.
¶ 33 In any event, because the court’s finding that the homeowners
had notice effectively precludes the homeowners’ claims, we cannot
see how any error in focusing the hearing on this threshold issue
prejudiced the homeowners. See C.R.C.P. 61 (errors that do not
affect the substantial rights of the parties are to be disregarded).
IV. Constructive Notice
¶ 34 The homeowners contend the trial court erred by finding
Stonefield had constructive notice of the approval of the Doremuses’
land use application. We disagree.
16 A. Standard of Review and Applicable Law
¶ 35 We review a trial court’s legal conclusions de novo. Tisch v.
Tisch, 2019 COA 41, ¶ 24. “Constructive notice is, for all practical
purposes, record notice.” Franklin Bank, N.A. v. Bowling, 74 P.3d
308, 313 (Colo. 2003). “When a party properly records his interest
in property with the appropriate clerk and recorder, he
constructively notifies ‘all the world’ as to his claim.” Id.
¶ 36 Stonefield acquired the property adjacent to the Doremuses’
lot approximately two years after the Doremuses received approval
for their land use application. And the homeowners do not argue
that the Doremuses improperly recorded the approval of their land
use application through the recordation of Resolutions Nos. 018-
2017 and 141-2018. Instead, the homeowners argue that
“Stonefield cannot be charged with constructive notice of a land use
approval that was not recorded in Stonefield’s chain of title.”
¶ 37 In essence, the homeowners are asking us to conclude that
the purchaser of any property lying next to land that is already
zoned, but undeveloped, should be allowed to sue the owner of the
undeveloped property despite the purchaser’s failure to inquire
17 about the zoning status. This would contravene Colorado case law,
which states that “[c]onstructive notice occurs when a party
‘abstains from inquiry when inquiry ought to be made’ because
‘[w]illful ignorance is equivalent, in law, to actual knowledge.’”
Macasero v. ENT Credit Union, 2023 COA 40, ¶ 20 (quoting Mackey
v. Fullerton, 4 P. 1198, 1200 (Colo. 1884)). Stonefield could have
looked at the county records for the relevant resolutions, which
detailed that the Doremuses’ lot had received approval for 5,750
square feet of gross floor area. Its decision not to inquire amounted
to constructive notice, and the trial court correctly concluded that
Stonefield’s claims were barred because of that notice.
V. Unjust Enrichment
¶ 38 The homeowners contend the trial court erred by dismissing
their unjust enrichment claim. We disagree.
¶ 39 We review de novo whether the trial court has applied the
appropriate test to determine the existence of unjust enrichment.
Redd Iron, Inc. v. Int’l Sales & Servs. Corp., 200 P.3d 1133, 1136
(Colo. App. 2008). But “where a ruling on unjust enrichment is
based on facts developed at trial, an appellate court affords
18 deference to the trial court’s discretion to fashion equitable
remedies, and it reviews for abuse of discretion.” Id.
¶ 40 To succeed on an unjust enrichment claim, a party “must
prove that (1) the defendant received a benefit (2) at the plaintiff's
expense (3) under circumstances that would make it unjust for the
defendant to retain the benefit without commensurate
compensation.” Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008).
¶ 41 The homeowners contend that we should review the trial
court’s unjust enrichment decision de novo. But the homeowners’
challenges are rooted in the trial court’s factual findings. The trial
court applied the correct legal standard to the unjust enrichment
claim. See id. Therefore, we will review the trial court’s denial of
the requested relief for an abuse of discretion. See id.
¶ 42 The trial court assumed without deciding that the
homeowners could establish that the Doremuses received a benefit
at their expense. Even so, the court determined that the
homeowners failed to meet the third prong “because the
circumstances do not make it unjust for the [Doremuses] to retain
the benefit of the approvals without compensation to the
19 [homeowners].” The court’s conclusion hinged on its factual
findings that the homeowners “had notice of the public proceeding”
and “had the ability to participate in the County’s process and
elected not to.” As previously noted, supra Part III.B, the court’s
findings were based on the testimony and evidence presented at the
bench trial, wherein everyone except the interested homeowners
recollected sending or receiving the relevant notices. Because we
must defer to the trial court’s unjust enrichment decision, see Redd
Iron, Inc., 200 P.3d at 1136, we cannot say that it abused its
discretion in concluding that the notice afforded to the
homeowners, and their choice not to attend and object to the
Doremuses land use application during the county proceedings,
could then make the Doremuses’ success in the proceedings
“unjust” if retained.
VI. Disposition
¶ 43 The judgment is affirmed.
JUDGE MOULTRIE and JUDGE TAUBMAN concur.