23CA0721 Dean v Casey 07-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0721 Arapahoe County District Court No. 21CV31592 Honorable Peter F. Michaelson, Judge
Amy F. Dean, Donner E. Dean, Jr., Merryl Learned, and John R. Walls, Jr.,
Plaintiffs-Appellees,
v.
Stephanie Casey, Trevor Casey, Wendy Brockman, and Clifton M. Brockman, Jr.,
Defendants-Appellants,
and
Stephen A. Fermelia, Mark Cohen, and Mark Cohen, J.D. L.L.M., a professional corporation,
Attorneys-Appellants.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE HARRIS Lum and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 24, 2025
Brown Dunning Walker Fein Drusch PC, Neal K. Dunning, Scott W. Drusch, Greenwood Village, Colorado, for Plaintiffs-Appellees
Levin Sitcoff PC, Bradley A. Levin, Denver, Colorado; Western Slope Law, Nelson A. Waneka, Glenwood Springs, Colorado, for Defendants-Appellants Mortiz Law LLC, Joel A. Mortiz, Stephen A. Fermelia, Denver, Colorado, for Attorney-Appellant Stephen A. Fermelia
Glade Voogt Lopez Smith Felser, PC, Andrew J. Felser, Denver, Colorado, for Attorneys-Appellants Mark Cohen and Mark Cohen, J.D., L.L.M.
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this neighbor dispute involving the use and maintenance of
two easements, defendants, Stephanie and Trevor Casey and Wendy
and Clifton M. Brockman, appeal the final judgment, entered after a
bench trial, enjoining them from obstructing the equestrian
easement, appointing a receiver to oversee maintenance of the
easements, and assessing attorney fees against them and their
counsel for pursuing frivolous defenses and counterclaims. The
defendants’ counsel separately appeal that portion of the judgment
assessing attorney fees against them.
¶2 We affirm in part, reverse in part, and remand the case to the
trial court for further proceedings.
1 I. Background
¶3 Mountain View Estates is a rural subdivision in Beyers,
Colorado, consisting of twelve approximately thirty-five-acre lots.
The subdivision is accessible by a private dirt and gravel road (the
road easement) and encircled by a forty-foot-wide equestrian trail
(the equestrian easement).
¶4 The plaintiffs (Amy F. and Donner E. Dean, Merryl Learned,
and John R. Walls, Jr.) and the defendants own lots in the
subdivision, as shown below:
The Lots and Easements of Mountain View Estates
¶5 Ownership is subject to the “Conditions” incorporated into the
owners’ deeds. The Conditions direct, among other things, that
2 “[a]ll easements shall be kept clear in a manner to allow their
intended uses,” and that “[p]urchasers of each lot” are “responsible
for the maintenance of the [road easement].”
¶6 When the Caseys and Brockmans moved to the subdivision in
2016 and 2018 respectively, the “accepted practice in the
community” was that lot owners — including all of the plaintiffs —
had fences and gates placed across the equestrian easement. Some
owners — including some of the plaintiffs — allowed their livestock
to graze on the easement.
¶7 In 2020, the Brockmans erected fencing and gates on either
end of their portion of the equestrian easement, with the intent to
have livestock graze there. The following year, the Caseys built a
fence with a gate across their portion of the easement. Around that
same time, both the Brockmans and the Caseys constructed
shooting berms near the equestrian easement.
¶8 In summer 2021, the Deans decided it was “time for everybody
to come into compliance” with the Conditions, and most of the
plaintiffs took down their fences and gates. When the Brockmans
and Caseys refused to follow suit, the plaintiffs (including Learned,
who still had a fence blocking the equestrian easement) filed this
3 action, asserting claims for trespass and nuisance and seeking
injunctive and declaratory relief against the defendants, based on
their alleged unreasonable interference with the equestrian
easement. (With respect to the declaratory relief claim, the
plaintiffs added all the other lot owners as defendants.)
¶9 The Brockmans and Caseys answered and asserted equitable
defenses and counterclaims. The other lot owners (the defaulted lot
owners) failed to respond to the complaint and collectively
defaulted.
¶ 10 In several orders issued before trial, the court resolved certain
of the defendants’ counterclaims and related issues of law:
• The court agreed with the defendants that the equestrian
easement was “nonexclusive,” and, therefore, the defendants
retained “the right to use the property in common with” the
plaintiffs, “provided [their] use permit[ted] full use and
enjoyment of the easement” by the plaintiffs.
• In a separate order, the court rejected the defendants’ claims
that lot owners were prohibited from maintaining any portions
of the easements located on other owners’ property. Rather,
the court found that maintenance was a “collective obligation”
4 of the lot owners. In its order, the court sua sponte raised the
possibility of appointing a receiver to manage maintenance of
the road and equestrian easements. The plaintiffs consented
to the appointment; the defendants objected.
• In a third order, the court granted the Caseys’ motion for
partial summary judgment on their counterclaim for injunctive
relief and enjoined plaintiffs Walls and Learned from placing
signs in the subdivision and blocking the equestrian
easement.
¶ 11 In preparation for the bench trial, the parties submitted a joint
trial management order (TMO) listing the following remaining claims
and counterclaims to be resolved by the court:
• the plaintiffs’ claims for trespass, nuisance and declaratory
and injunctive relief relating to the defendants’ placement of
fencing, gates, and shooting berms on or near the equestrian
easement;
• the Brockmans’ counterclaims for abuse of process (based on
the plaintiffs’ lawsuit) and declaratory and injunctive relief
(concerning their use of the equestrian easement); and
5 • the Caseys’ counterclaims for invasion of privacy, trespass,
breach of the Conditions, abuse of process (based on Amy
Dean’s application for a protection order against Stephanie
Casey), civil conspiracy, and declaratory and injunctive relief.
¶ 12 At the trial management conference, the court characterized
the case as a “declaratory judgment suit basically by both sides”
concerning the permitted use of the equestrian easement. The
court appeared skeptical that fences and gates across the easement
would be permitted, but it acknowledged that “there is some law on
[the defendants’] side.” The court also expressed skepticism about
the viability of some of the defendants’ counterclaims, including
their abuse of process claims and the Caseys’ civil conspiracy claim,
but after hearing explanations from counsel, it demurred,
recognizing that assessing the claims was “why we’re going to have
a trial.” There was no discussion of the defendants’ equitable
defenses of unclean hands, waiver/laches, or estoppel.
¶ 13 At trial, the defendants’ primary theory of the case was that
their fences and gates would not unreasonably interfere with the lot
owners’ use of the equestrian easement, as evidenced by the fact
that fences and gates had existed on the easement for more than a
6 decade without incident. To that end, each side called an expert
witness to opine on whether various obstructions would interfere
with equestrian activities.
¶ 14 Relatedly, the defendants also elicited evidence to support an
equitable theory that by keeping fences and gates on the easement
until just before the lawsuit was filed (or, in Learned’s case, for
several months afterward), the plaintiffs could not seek to bar the
defendants’ conduct.
¶ 15 After three days of trial, during which the court alternated
between admonishing the defendants for pursuing the defenses and
counterclaims referenced in the TMO and seemingly retracting the
admonishments, the court issued a final order and judgment that,
as relevant here,
• required the defendants to remove any fences, gates, and
berms from the equestrian easement; prohibited any lot owner
from allowing livestock to graze on the equestrian easement;
and required all lot owners to comply with the Conditions;
• entered judgment against Walls on one of the Caseys’
counterclaims for trespass and awarded $800 in damages;
7 • appointed a receiver to manage maintenance of the road and
equestrian easements, including collecting fees from all lot
owners; and
• assessed one half of the plaintiffs’ reasonable attorney fees
against the defendants and their counsel, jointly and severally,
as a sanction for pursuing frivolous, groundless, and
vexatious defenses and counterclaims.
¶ 16 The defendants and their counsel now appeal. We first
address the claims particular to the Brockmans and Caseys and
then turn to the claim raised jointly by the defendants and their
counsel — that the court erred by assessing attorney fees against
them.
II. The Defendants’ Separate Claims on Appeal
¶ 17 The defendants seek reversal of the judgment on the grounds
that (1) the trial court was biased against them, and (2) the court
erred by determining that all lot owners have a right to maintain the
easements and by appointing a receiver.
8 A. The Trial Judge’s Alleged Actual Bias
1. Additional Facts
¶ 18 On the first day of trial, the court acknowledged that it had
not yet determined whether the defendants’ equitable defenses
applied to the plaintiffs’ claims. Accordingly, it admitted evidence
relevant to those defenses.
¶ 19 But a couple of hours later, after the lunch break, the court
informed counsel that equitable defenses did not apply to written
covenants that run with the land. It warned counsel not to “expect
a positive result” if they continued to pursue the defenses.
¶ 20 At the end of the day, when counsel attempted to elicit
testimony relevant to one of the equitable defenses, the court
explained at length that the defenses did not apply and cautioned
counsel that if it “heard any more examination . . . that goes to
those defenses,” counsel might “run into a contempt.”
¶ 21 The next morning, the court clarified that the likely sanction
for pursuing the defenses, which, based on the first day’s evidence,
“look[ed] frivolous,” was not contempt but an award of attorney fees
to the plaintiffs. Nonetheless, when counsel asked whether the
court’s admonitions meant that the equitable defenses “are out,”
9 the court insisted that it had not “made a decision yet” concerning
the viability of the defenses and encouraged the attorney to do
“what [he] th[ought] [wa]s right.”
¶ 22 But later, when counsel attempted to admit evidence that a
plaintiff’s prior conduct was inconsistent with her current
complaints about the condition of the easement, the court
threatened to hold counsel in contempt.
¶ 23 The court also expressed frustration with the Caseys’ civil
conspiracy and invasion of privacy counterclaims and the
Brockmans’ abuse of process counterclaim.
¶ 24 The court understood the Caseys’ civil conspiracy claim to be
based on an allegation that the plaintiffs had attempted to induce
Stephanie Casey into committing some sort of bad behavior in front
of a law enforcement officer. But the court rejected that theory and
warned counsel that if they could not present a more cogent theory,
the court would “hold[] [counsel] in contempt for continuing to”
pursue “unsubstantiated claims.” With respect to the invasion of
privacy claim, the court disagreed that the tort could be committed
on “open property.”
10 ¶ 25 But by the third day of trial, after hearing argument from
counsel, the court reconsidered its earlier position, acknowledging
that the Caseys might have a viable theory for both claims.
¶ 26 The court was steadfast in its rejection of the Brockmans’
abuse of process claim, however. Toward the end of trial, the court
demanded that counsel essentially abandon the claim or risk being
held in contempt.
2. Discussion
¶ 27 “A basic principle of our system of justice is that judges ‘must
be free of all taint of bias and partiality.’” People in Interest of A.P.,
2022 CO 24, ¶ 25 (quoting People v. Julien, 47 P.3d 1194, 1197
(Colo. 2002)). Thus, under C.R.C.P. 97, a judge in a civil case must
be disqualified if he is prejudiced or biased against a party or
counsel to the litigation. Bocian v. Owners Ins. Co., 2020 COA 98,
¶ 13. An actual bias is a bias “that in all probability will prevent [a
judge] from dealing fairly with a party.” People in Interest of A.G.,
262 P.3d 646, 650 (Colo. 2011) (alteration in original) (quoting
Julien, 47 P.3d at 1197).
11 ¶ 28 The defendants contend that the trial judge’s threats to hold
counsel in contempt demonstrated actual bias1 requiring reversal of
the judgment. Reviewing that claim de novo, see People v.
Jennings, 2021 COA 112, ¶ 27, we disagree.
¶ 29 A judge’s remarks during the course of a trial that are “critical
or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.”
People v. Dobler, 2015 COA 25, ¶ 26; see also Liteky v. United
States, 510 U.S. 540, 555-56 (1994) (“Not establishing bias or
partiality . . . are expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what
imperfect [people] . . . sometimes display.”).
¶ 30 The trial judge’s comments here, while somewhat
unprofessional and needlessly dramatic, showed hostility toward
the defendants’ defenses and counterclaims based on the evidence
1 To the extent the defendants argue that the trial judge’s comments
created an appearance of bias requiring disqualification, that argument is waived based on their failure to file a motion to disqualify in the trial court. See People in Interest of A.P., 2022 CO 24, ¶ 29 n.2; Rea v. Corr. Corp. of Am., 2012 COA 11, ¶¶ 22-23. But a claim of actual bias cannot be waived and, therefore, can be raised for the first time on appeal. See People in Interest of A.G., 262 P.3d 646, 651 (Colo. 2011).
12 introduced at trial and the court’s own research, not toward the
defendants themselves or their counsel. See Liteky, 510 U.S. at 555
(explaining that opinions formed by the judge based on the evidence
at trial is generally not a basis for claiming bias or partiality). The
record does not show that the trial judge had a “substantial bent of
mind” against counsel such that he could not fairly consider
counsel’s arguments. A.P., ¶ 30 (quoting People v. Drake, 748 P.2d
1237, 1249 (Colo. 1988)). To the contrary, the judge was
sometimes persuaded by counsel’s explanations to (temporarily, at
least) reconsider his previous positions and evidentiary rulings.
¶ 31 Any argument that the trial judge misunderstood the parties’
arguments or the law does not support a finding of actual bias.
“[A]dverse legal rulings by a judge are unlikely to provide grounds
for a bias claim, as they are proper grounds for appeal, not for
recusal.” Id. at ¶ 32.
¶ 32 And without any additional information, we cannot say that
the trial judge’s decision to recuse himself from the case after final
judgment entered and shortly before he left the bench demonstrates
actual bias during the trial. Allegations of bias cannot be based on
13 “mere suspicion, speculation, conjecture, or innuendo.” Bocian,
¶ 44.
¶ 33 For these reasons, we reject the defendants’ claim that the
trial judge evinced actual bias requiring his disqualification.
B. The Maintenance Order and Appointment of a Receiver
¶ 34 Certain of the Conditions addressed maintenance of the
easements:
11. LOT MAINTENANCE The structures and grounds, including any open space, equestrian trails, and landscape or greenbelt area, of each lot shall be maintained in a neat and attractive manner. Special attention shall be given to the control of weeds, which may constitute a fire hazard.
13. EASEMENT All easements shall be kept clear in a manner to allow their intended uses.
18. ROAD MAINTENANCE Purchasers of each lot in the Mountain View Estates Subdivision are responsible for the maintenance of the private road known as East Briarwood Place. This excludes any and all lots owned by [the developer].
¶ 35 Before trial, in an effort to limit access to their properties, the
defendants requested a ruling that under the Conditions, each lot
owner could perform maintenance only on those portions of the
14 easements located on that owner’s property. The court denied the
request and determined instead that maintenance of the easements
was a “right and obligation of all of the lot owners,” meaning that
any lot owner could perform reasonable maintenance on any part of
the equestrian or road easements.
¶ 36 But the court found that the parties were “incapable of safely
and effectively” maintaining the easements. So, in the final order
and judgment, it appointed a receiver under C.R.C.P. 66(a)(3) to
oversee maintenance duties, including the collection of annual fees
from all lot owners.
¶ 37 On appeal, the defendants contend that the court erred by
determining that each lot owner has a right to perform maintenance
on any portion of the easements and by appointing a receiver. We
agree in part.
¶ 38 “Where there are several owners in common of an easement,
each owner has a right to make reasonable repairs to the easement,
so long as such [repairs] do not injuriously affect a co-owner.” 28A
C.J.S. Easements § 228, Westlaw (database updated May 2025); see
also Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1238
(Colo. 1998) (the dominant estate holder may perform necessary
15 maintenance and make improvements to the easement as long as
the maintenance and improvements do not unreasonably interfere
with the enjoyment of the servient estate); Story v. Bly, 217 P.3d
872, 879 (Colo. App. 2008) (where dominant and servient estate
owners share use of an easement, “it follows that the right to use
the property engenders an equal right and obligation to maintain
the property”), aff’d, 241 P.3d 529 (Colo. 2010).
¶ 39 The co-beneficiaries of an easement are free to determine the
extent of their obligations to keep an easement in repair, but in the
absence of an agreement or when the agreement is silent on this
issue, the general rule applies: the beneficiaries of the easement
generally share the maintenance obligation. See Restatement
(Third) of Prop.: Servitudes § 4.13 (Am. L. Inst. 2000); see also Lazy
Dog, 965 P.2d at 1237 (in the absence of an agreement, certain
“default rules” concerning the parties’ reasonable use and
maintenance of the easement apply).
¶ 40 The defendants say that the Conditions contemplate that each
lot owner “will maintain any easements on their land.” True, but
the fact that each lot owner has a duty to maintain their portion of
the easement is not inconsistent with the general rule that each
16 easement holder has a right to maintain and improve any portion of
the easement.
¶ 41 Nothing in the Conditions prohibits any easement holder from
performing maintenance on a particular part of the equestrian or
road easements. The provision concerning “lot maintenance”
requires that the “equestrian trail” on “each lot” be maintained “in a
neat and attractive manner,” but it does not specify who may or
may not maintain the equestrian trail. If the “lot maintenance”
provision settled the matter, the Conditions would not also include
a separate provision for maintenance of the “easements.” Moreover,
the separate “road maintenance” provision says that “purchasers” of
the lots are responsible for maintenance.
¶ 42 The defendants note that the Conditions do not specifically
provide for a homeowners’ association or a receiver. But the
absence of any such provision does not suggest an intent to
preclude other lot owners from performing maintenance on the
easements.
¶ 43 Accordingly, we discern no error in the court’s order regarding
the right of the easement holders to perform maintenance on the
17 ¶ 44 But we reach the opposite conclusion regarding appointment
of the receiver.
¶ 45 Under C.R.C.P. 66(a), a “receiver may be appointed by the
court in which the action is pending at any time.” The appointment
of a receiver is “an extraordinary remedy that should be employed
with the utmost caution.” United States v. Solco I, LLC, 962 F.3d
1244, 1250 (10th Cir. 2020) (quoting 12 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2983, Westlaw
(3d ed. database updated Apr. 2020)).
¶ 46 We review the court’s decision to appoint a receiver for an
abuse of discretion. Premier Farm Credit, PCA v. W-Cattle, LLC, 155
P.3d 504, 512 (Colo. App. 2006). A court abuses its discretion if its
ruling is manifestly arbitrary, unreasonable, or unfair. Id.
¶ 47 Neither party requested a receiver or alleged that the lot
owners were incapable of maintaining the easements. Nonetheless,
the court concluded that without the appointment of a receiver to
manage maintenance of the equestrian and road easements, the lot
owners’ use of the easements would be adversely affected. The
court appointed a receiver with the authority to hire contractors,
accountants, and other professionals, and it ordered each of the lot
18 owners to pay an initial retainer fee of $1,000 and an annual
assessment of $2,000 for general maintenance of the easements.
The receiver could obtain a judgment in the amount of any unpaid
assessments and record the lien, allowing the receiver to foreclose
on the lien if the judgment was not satisfied.
¶ 48 We see two problems with the court’s order.
¶ 49 First, in appointing the receiver, the court granted relief
against the defaulted lot owners that was not requested in the
complaint. Under C.R.C.P. 54(c), a “judgment by default shall not
be different in kind from that prayed for in the demand for
judgment.” Because neither party requested the appointment of a
receiver, the court lacked authority to appoint one with respect to
the defaulted lot owners or to order the defaulted lot owners to pay
an annual maintenance fee. See, e.g., Toplitzky v. Schilt, 361 P.2d
970, 972-73 (Colo. 1961) (court lacks authority to order relief
against defaulting party that was not originally requested).
¶ 50 And if the receiver has no authority over the defaulted lot
owners, the receiver’s purpose cannot be accomplished. The court
ordered the receiver to collect fees from all lot owners to cover the
cost of maintaining and repairing the easements. The court did not
19 intend to place the full burden of maintaining the easements on the
few lot owners involved in the litigation, and there would have been
no basis for doing so. Each of the lot owners, as beneficiaries of the
equestrian and road easements, were “obligated to contribute to the
reasonable costs of repair and maintenance” of those easements.
Restatement (Third) of Prop.: Servitudes § 4.13 cmt. e.
¶ 51 Second, the terms imposed were arbitrary. While the lot
owners have a collective obligation to maintain the easements, “[t]he
responsibility of each user should reflect a fair proportion of the
costs,” which will vary depending on the circumstances. Id. In
imposing the terms, the court should have considered factors
including “the amount and intensity of actual use and the value of
other contributions made by the users to improvement and
maintenance of the easement.” Id. But without any explanation,
the court simply ordered that each lot would be assessed an annual
fee of $2,000 — an amount that is not tied to the lot owners’ use of
the easements or to any evidence of the expected annual cost of
maintenance and repairs.
¶ 52 For these reasons, we reverse the court’s order appointing a
receiver.
20 III. Challenge to the Court’s Assessment of Attorney Fees
¶ 53 The defendants and their counsel contend that the trial court
erred in assessing attorney fees against them because (1) the
defenses and counterclaims were not frivolous, groundless, or
vexatious; (2) the amount of the award was arbitrary; and (3) an
award of interest on attorney fees is prohibited.
A. Award of Attorney Fees for Frivolous, Groundless, or Vexatious Defenses and Counterclaims
1. Legal Principles and Standard of Review
¶ 54 Under section 13-17-102(2), C.R.S. 2024, the court “shall
award . . . reasonable attorney fees against any attorney or party
who has brought or defended a civil action, either in whole or in
part, that the court determines lacked substantial justification.”
“Lacked substantial justification” means “substantially frivolous,
substantially groundless, or substantially vexatious.” § 13-17-
102(4).
¶ 55 A claim or defense is frivolous if the proponent can present no
rational argument based on the evidence or the law to support the
claim or defense. Hawley v. Mowatt, 160 P.3d 421, 427 (Colo. App.
2007). A claim or defense is groundless if the allegations in the
21 complaint or answer are not supported by any credible evidence at
trial. Id. A claim or defense is vexatious if it is asserted or
maintained in bad faith to annoy or harass another; vexatiousness
includes conduct that is “arbitrary, abusive, stubbornly litigious, or
disrespectful of the truth.” In re Estate of Shimizu, 2016 COA 163,
¶ 26 (quoting In re Parental Responsibilities Concerning I.M., 2013
COA 107, ¶ 29).
¶ 56 We review an award of attorney fees under section 13-17-102
for an abuse of discretion. Andres Trucking Co. v. United Fire &
Cas. Co., 2018 COA 144, ¶ 57. A court abuses its discretion where
its decision rests on a misunderstanding or misapplication of the
law, or is manifestly arbitrary, unreasonable, or unfair. Estate of
Shimizu, ¶ 15.
2. The Court Abused Its Discretion by Awarding Attorney Fees in Connection With the Equitable Defenses and Certain Counterclaims
¶ 57 We agree with the defendants that the court misapplied the
law when it found the equitable defenses and certain of the
counterclaims frivolous, groundless, and vexatious and awarded
attorney fees in connection those defenses and claims.
22 a. Equitable Defenses
¶ 58 The court interpreted the defendants’ equitable defenses as an
effort to “obtain an order terminating” the equestrian easement
based on a theory that the lot owners had “abandon[ed]” the
easement or otherwise acted in a manner suggesting that the
Conditions were “subject to termination.” The court reasoned that
the defenses were frivolous, as the validity of the easement could
not be “affected by [the] equitable theories.”
¶ 59 But the defendants’ position was not that the easement or the
Conditions had “terminated,” or that the other lot owners had
relinquished their right to use the easement. The equitable
defenses were based on a theory that because the lot owners,
including the plaintiffs, had used the easement for equestrian
activities for more than a decade while maintaining fences and
gates across it, the plaintiffs could not now complain that the
defendants’ conduct interfered with their enjoyment of the easement
or otherwise violated the Conditions.
¶ 60 Under the doctrine of unclean hands, for example, the court
will not consider a request for equitable relief — such as a
mandatory injunction — under circumstances where “the litigant’s
23 own acts offend the sense of equity to which he or she appeals.”
Ajay Sports, Inc. v. Casazza, 1 P.3d 267, 276 (Colo. App. 2000).
The court concluded that the defense did not apply unless the
plaintiffs’ conduct was “outrageous,” but the law requires only
“improper conduct” that “relate[s] directly to the underlying
litigation.” Id. The defendants argued that the plaintiffs’ own
violations of the Conditions (their improper conduct) precluded
them from obtaining equitable relief.
¶ 61 And contrary to the plaintiffs’ argument, the Caseys did not
forfeit their equitable defenses by seeking to enforce the Conditions
against Learned. The defendants’ position was that the Conditions
permitted lot owners to construct fences with unlocked gates on
their property because those improvements did not interfere with
other lot owners’ use of the equestrian easement. But, as the court
found, Learned had constructed a fence without a gate that
completely blocked access to a portion of the easement.
¶ 62 As for the defenses of estoppel and waiver/laches, the court
determined that as a matter of law, those theories could not
“affect[]” the equestrian easement, which was documented in
written covenants that run with the land.
24 ¶ 63 According to the court, the estoppel defense was frivolous
because the defendants had “full knowledge of the equestrian
easement prior to purchasing [their] lot[s].” On appeal, the
plaintiffs adopt that reasoning, arguing that the defense was
irrational because a person “cannot ignore express covenants that
an Easement shall be kept clear for its intended use,” even if the
person sees gates and fences on the easement.
¶ 64 But again, the trial court and now the plaintiffs have
misconstrued the defendants’ theory of defense. The defendants
did not deny knowledge of the easement or the Conditions. Rather,
their theory was that the plaintiffs’ conduct led them to reasonably
believe that the Conditions were not incompatible with the
maintenance of fences and gates and the grazing of livestock. See
Barker v. Jeremiasen, 676 P.2d 1259, 1262 (Colo. App. 1984) (The
elements of equitable defense of estoppel are “full knowledge of the
facts; unreasonable delay in the assertion of [an] available remedy;
and intervening reliance by and prejudice to another.”). The court
did not explain why that particular theory was frivolous. See
Padilla v. Ghuman, 183 P.3d 653, 662 (Colo. App. 2007) (where the
trial court awards attorney fees under section 13-17-102 without
25 making specific findings to support the award, the court abuses its
discretion).
¶ 65 And to the extent the trial court concluded that estoppel can
never bar enforcement of written covenants, we are unaware of any
case that supports that proposition. Even when written covenants
are “clear on their face,” “equity may fashion a remedy to effect
justice suitable to the circumstances of the case.” Woodmoor Imp.
Ass’n v. Brenner, 919 P.2d 928, 931 (Colo. App. 1996) (equitable
estoppel barred homeowners’ association from enforcing a
restrictive covenant against a homeowner); see also Lookout
Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.,
867 P.2d 70, 76-77 (Colo. App. 1993) (considering whether
equitable defenses, including estoppel, barred a homeowners’
association from enforcing a covenant). At oral argument, the
plaintiffs claimed that Woodmoor and Lookout Mountain stand for
the proposition that only a homeowners’ association can assert
equitable defenses, but they offered no authority to support that
claim and we are not aware of any.
¶ 66 Finally, the defendants say they had a rational basis for
asserting the defenses of waiver/laches, but our review of the
26 record does not reveal that the defendants actually pursued these
defenses at trial, separate and apart from the other equitable
defenses. The court’s order does not provide any basis for
concluding otherwise.
¶ 67 In sum, we conclude that the court abused its discretion in
awarding attorney fees based on a finding that the equitable
defenses were frivolous, groundless, or vexatious.
b. Trespass
¶ 68 The Caseys asserted a counterclaim for three incidences of
trespass. The court found that Walls and Amy Dean “at times have
intentionally entered upon” the Caseys’ property, and that one of
Walls’ trespasses caused $800 in damages.
¶ 69 Nonetheless, the court appeared to find that certain of the
trespass claims were frivolous or groundless based on a lack of
evidence that the trespasses caused “physical damage to the
Caseys’ property.” Assuming this was the basis of the court’s
frivolousness finding, the court erred.
¶ 70 Ordinarily, to prove a trespass, the proponent of the claim
must show that another person physically intruded on her property
without permission; the proponent need not show physical damage.
27 Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 389 (Colo. 2001)
(“By intentionally entering the land possessed by someone else, or
causing a thing or third person to enter the land, an individual
becomes subject to liability for trespass, whether or not he caused
harm to any legally protected interest of the landowner.”). A
showing of physical damage is necessary only when the trespass
involves an intangible intrusion. Id.
¶ 71 The trespass counterclaim did not involve allegations of an
intangible intrusion. Thus, the court misapplied the law in
determining that the claim was frivolous, groundless, or vexatious
because the Caseys failed to demonstrate physical damage.
¶ 72 And contrary to the plaintiffs’ argument on appeal, the fact
that their trespasses might have been “innocent” or “trivial” is
irrelevant. Liability for trespass requires only an intent to do the
act that itself constitutes the intrusion. See Antolovich v. Brown
Grp. Retail, Inc., 183 P.3d 582, 603 (Colo. App. 2007). A culpable
state of mind is not an element of the tort.
¶ 73 Thus, the award of attorney fees related to the trespass claim
cannot stand.
28 c. Intrusion Upon Seclusion
¶ 74 The Caseys asserted a counterclaim for invasion of privacy by
intrusion upon seclusion,2 supported by evidence that Walls had
repeatedly parked at the entrance to the Caseys’ driveway and
stared or sometimes honked and yelled at Stephanie Casey while
she was in the house.
¶ 75 As noted, by the last day of trial, the court appeared to agree
that the Caseys had a viable invasion of privacy claim.
Nonetheless, in the final order and judgment, the court found that
the claim lacked a “legal basis.” According to the court, an
intrusion upon seclusion claim could not be based on acts
committed by a person “present on a common road or other
common space,” unless the person used “an enhanced viewer, such
as a camera,” to penetrate into the other person’s home.
¶ 76 To prevail on a claim for intrusion upon seclusion, the Caseys
had to show that another person “intentionally intruded, physically
2 In Colorado, an invasion of privacy claim encompasses three
distinct torts: unreasonable intrusion upon the seclusion of another, unreasonable publicity given to another’s private life, and appropriation of another’s name or likeness. Pearson v. Kancilia, 70 P.3d 594, 598-99 (Colo. App. 2003).
29 or otherwise, upon [their] seclusion or solitude, and that such
intrusion would be considered offensive by a reasonable person.”
Doe v. High-Tech Inst., Inc., 972 P.2d 1060, 1065 (Colo. App. 1998).
¶ 77 The court’s interpretation of the claim is not supported by the
relevant authority. True, a claim would not lie if Stephanie Casey’s
“appearance [wa]s public and open to the public eye.” Restatement
(Second) of Torts § 652B cmt. c (Am. L. Inst. 1977), Westlaw
(database updated Oct. 2024). But the fact that Walls was in a
public place would not categorically defeat the claim, much less
render it frivolous, if he, from his public vantage point, nevertheless
intruded on Stephanie Casey’s seclusion.
¶ 78 Under the court’s interpretation of the law, a person who
stands on a public sidewalk, only feet away from another person’s
home, and yells obscenities for hours at the person inside is not
liable for intruding on the other person’s seclusion. That
interpretation disregards that one “type[] of invasion intrinsic in the
tort of intrusion upon seclusion [is] . . . harassment.” Wolf v.
Regardie, 553 A.2d 1213, 1217 (D.C. 1989); see also Doe, 972 P.2d
at 1067 (recognizing that repeated and harassing phone calls give
rise to an intrusion upon seclusion claim).
30 ¶ 79 To the extent the court relied on Sundheim v. Board of County
Commissioners, 904 P.2d 1337 (Colo. App. 1995), to support the
frivolousness finding, its reliance was misplaced. In that case, the
division affirmed summary judgment against the plaintiffs on their
invasion of privacy claim where the county’s investigator observed
things on the premises either “plainly visible to the public” or visible
to him because he had been “invited onto the property” by the
lessee. Id. at 1351. The division noted, though, that business
premises are “open to intrusions that would not be permissible in
purely private circumstances.” Id. Given the inapposite context,
Sundheim is not instructive here.
¶ 80 The court’s only basis for finding the invasion of privacy claim
frivolous, groundless, or vexatious amounted to a misapplication of
the law. Thus, we conclude that the court abused its discretion in
awarding attorney fees in connection with this claim.
3. The Court Did Not Abuse Its Discretion by Awarding Attorney Fees in Connection with the Remaining Counterclaims
¶ 81 We disagree, however, that the court abused its discretion by
awarding attorney fees in connection with the defendants’
counterclaims for abuse of process and civil conspiracy.
31 a. Abuse of Process
¶ 82 The Caseys asserted an abuse of process counterclaim against
all plaintiffs based on Amy Dean’s application for a protection order
against Stephanie Casey. The Brockmans asserted an abuse of
process counterclaim based on the plaintiffs’ filing of the instant
lawsuit.
¶ 83 To prove an abuse of process claim, the proponent must
establish “(1) an ulterior purpose for the use of a judicial
proceeding; (2) willful action in the use of that process which is not
proper in the regular course of the proceedings, i.e., use of a legal
proceeding in an improper manner; and (3) resulting damage.”
Parks v. Edward Dale Parrish LLC, 2019 COA 19, ¶ 12 (quoting
Mackall v. JPMorgan Chase Bank, N.A., 2014 COA 120, ¶ 39).
¶ 84 The second element — improper use — is “[t]he essential
element of an abuse of process claim,” and it is distinct from the
“ulterior purpose” element. Active Release Techs., LLC v. Xtomic,
LLC, 2017 COA 14, ¶ 6 (citations omitted). The improper use must
involve an “actual court process” that is “unrelated to, or outside
the scope of, the action filed.” Id. at ¶¶ 9-10.
32 ¶ 85 The trial court found that the defendants had failed to present
any evidence to support the improper manner element.
¶ 86 On appeal, the Caseys say that, based on the timing, a
“reasonable inference is that the [application for a protection order]
was filed to intimidate and/or harass [Stephanie] Casey or obtain
an advantage in [the easement dispute].” That cursory argument,
styled in the disjunctive, demonstrates that the Caseys still have
not developed any cognizable theory of the claim. Nor do they point
to any evidence showing that the protection order proceeding was
used to gain leverage or otherwise coerce the Caseys into taking
some action.
¶ 87 The Brockmans do not attempt to show the improper use of a
legal proceeding or process that is “unrelated to, or outside the
scope of, the action filed.” Id. Their argument is only that the
plaintiffs filed “the instant lawsuit” for an ulterior purpose. But “[i]f
the action is confined to its regular and legitimate function in
relation to the cause of action stated in the complaint[,] there is no
abuse, even if the plaintiff had an ulterior motive in bringing the
action or if he knowingly brought suit upon an unfounded claim.”
Colo. Cmty. Bank v. Hoffman, 2013 COA 146, ¶ 37 (quoting
33 Sterenbuch v. Goss, 266 P.3d 428, 439 (Colo. App. 2011)). In other
words, the mere filing of a lawsuit cannot be the basis of an abuse
of process claim.
¶ 88 Accordingly, we conclude that the trial court did not abuse its
discretion in awarding attorney fees in connection with these
counterclaims.
b. Civil Conspiracy
¶ 89 The Caseys asserted a counterclaim for civil conspiracy,
alleging that the plaintiffs conspired to harass them and to induce
them to commit an illegal act in retaliation for the Caseys’ refusal to
consent to proposed amendments to the Conditions. At trial, the
Caseys also claimed that the plaintiffs conspired to invade their
privacy.
¶ 90 The elements of civil conspiracy are (1) an object to be
accomplished; (2) an agreement by two or more persons on a course
of action to accomplish that object; (3) one or more unlawful overt
acts; and (4) resulting damages. See Rosenblum v. Budd, 2023 COA
72, ¶ 51. Civil conspiracy is a derivative cause of action. Double
Oak Contr., L.L.C. v. Cornerstone Dev. Int’l, L.L.C., 97 P.3d 140, 146
(Colo. App. 2003), overruled on other grounds by L.H.M. Corp., TCD
34 v. Martinez, 2021 CO 78, ¶ 24. “If the acts alleged to constitute the
underlying wrong provide no cause of action, then there is no cause
of action for the conspiracy itself.” Id.
¶ 91 The court found that the Caseys had failed to present any
evidence that the plaintiffs agreed to pursue any unlawful overt act.
¶ 92 On appeal, the Caseys say the plaintiffs “conspired to harass
them and get them in trouble with the law.” They point to a group
text discussing a plan to “goad” Stephanie Casey into committing a
trespass and to a letter from the Deans recommending the
formation of an “HOA-like entity.” But these acts are not unlawful.
As for Walls’ conduct in driving around the Caseys’ home, the
Caseys did not present any evidence that the plaintiffs had a part in
Walls’ decision to engage in that conduct. Nor was there evidence
that the plaintiffs formed an agreement to invade the Caseys’
¶ 93 While a civil conspiracy may be implied by a course of conduct
and other circumstantial evidence, a court may not infer a
conspiracy absent some proof of an agreement. See Rosenblum,
¶ 52. The proponent of the claim must present “some indicia of
35 agreement in an unlawful means or end.” Id. (quoting Schneider v.
Midtown Motor Co., 854 P.2d 1322, 1327 (Colo. App. 1992)).
¶ 94 Because the Caseys failed to present any evidence to support
their civil conspiracy claim, we cannot say that the court abused its
discretion in awarding attorney fees in connection with this claim.
B. Attorney Fee Issues Likely to Arise on Remand
¶ 95 Having concluded that the court abused its discretion in
awarding attorney fees in connection with the defendants’ equitable
defenses and certain of the counterclaims, we must reverse that
portion of the judgment and remand to the trial court for
reconsideration of an award of fees.
¶ 96 In light of our disposition, we need not resolve the defendants’
other challenges to the attorney fee award. However, should those
challenges arise on remand, we note that a “movant must . . .
establish a reasonable proration of attorney fees incurred relative to
the defense of a frivolous or groundless claim.” Farmers Reservoir &
Irrigation Co. v. City of Golden, 113 P.3d 119, 126 (Colo. 2005).
Here, the trial judge sua sponte awarded the plaintiffs one half of
their attorney fees without requiring the plaintiffs to show any
36 connection between the frivolous counterclaims and the fees
incurred.
¶ 97 Additionally, we agree with the defendants that a court may
not award interest on attorney fees awarded under section 13-17-
102. See id. at 133-35.
IV. The Plaintiffs’ Request for Appellate Attorney Fees
¶ 98 The plaintiffs seek an award of their appellate attorney fees
under C.A.R. 39.1, contending that the defendants’ appeal is
frivolous and groundless.
¶ 99 But the defendants have prevailed on a number of their
claims, see Andres Trucking Co., ¶ 62 (declining to award appellate
attorney fees when the other party prevailed on appeal), and while
they did not prevail on others, we do not agree that an award of fees
is warranted, see Glover v. Serratoga Falls LLC, 2021 CO 77, ¶ 70
(noting that the court awards appellate attorney fees only in clear
and unequivocal cases of egregious conduct where no rational
argument is presented).
V. Disposition
¶ 100 Those portions of the judgment appointing a receiver and
assessing $97,651.68 in attorney fees and costs against the
37 defendants and their counsel, jointly and severally, pursuant to
section 13-17-102, are reversed, and the case is remanded for
reconsideration of an award of attorney fees. In all other respects,
the judgment is affirmed.
JUDGE LUM and JUDGE GRAHAM concur.