Elk Run Ski Pad v. Elk Run at Copper

• Court: Colorado Court of Appeals
• Decided: November 13, 2025
• Docket: 24CA1697
• Status: Unpublished

Opinion

24CA1697 Elk Run Ski Pad v Elk Run at Copper 11-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1697 Summit County District Court No. 21CV30072 Honorable Reed W. Owens, Judge

Elk Run Ski Pad, LLC, an Arizona limited liability company,

Plaintiff-Appellee,

v.

Elk Run at Copper Mountain Condominiums Homeowners Association, a Colorado nonprofit corporation,

Defendant-Appellant.

ORDER AFFIRMED

Division III Opinion by JUDGE DUNN Lipinsky and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 13, 2025

Campbell, Wagner & Frazier, LLC, Winslow Taylor, III, Greenwood Village, Colorado, for Plaintiff-Appellee

Lorber, Greenfield & Olsen, LLP, Stuart D. Morse, Konrad R. Schreier, Greenwood Village, Colorado, for Defendant-Appellant ¶1 Defendant, Elk Run at Copper Mountain Condominiums

Homeowners Association (the Association), appeals the district

court’s order denying its request for an award of the attorney fees

and costs it incurred in defending against a contempt action

initiated by plaintiff, Elk Run Ski Pad, LLC (Owner). Because the

Association is not entitled to attorney fees and costs, we affirm the

order.

I. Factual and Procedural Background

A. The Litigation and Judgment

¶2 In 2019, Owner purchased a condominium unit in the Elk

Run at Copper Mountain Condominiums complex. Both before and

after the purchase, Owner notified the Association of problems

related to windows and associated wells, entry stairs, and radon

levels. Because the Association was responsible for the common

elements at the complex, Owner asked the Association to address

the identified problems. The Association didn’t make the requested

repairs.

¶3 Owner then sued the Association for breach of the Amended

and Restated Declaration of Elk Run at Copper Mountain

Condominiums (the Declaration) and under the Colorado Common

1 Interest Ownership Act, sections 38-33.3-101 to -402, C.R.S. 2025

(the Act). Owner sought declaratory and injunctive relief.

¶4 After a bench trial, the district court issued a detailed written

ruling in favor of Owner (the Judgment). The court found that the

Association expressly violated the Act and the Declaration and that

the Association’s actions were “unconscionable” and “in bad faith.”

The court granted Owner’s request for declaratory relief and held

that Owner was entitled to recover its attorney fees and costs under

the Declaration and the Act. The court also entered an injunction

requiring the Association to complete the repairs and radon

mitigation “in accordance with industry standards . . . no later than

June 30, 2023,” and noted that the injunction “may be enforced by

contempt of court proceedings, which may include remedial or

punitive sanctions, including the imposition of fines.”

¶5 The Association and Owner each appealed portions of the

Judgment, and a division of this court affirmed. Elk Run Ski Pad,

LLC v. Elk Run at Copper Mountain Condos. Homeowners Ass’n,

(Colo. App. No. 23CA0225, Feb. 15, 2024) (not published pursuant

to C.A.R. 35(e)).

2 B. The Contempt Proceedings

¶6 The Association did not complete the required repairs by the

June 2023 deadline. As a result, in July 2023, Owner filed a

motion under C.R.C.P. 107(d)(2), asking the court to hold the

Association in contempt, impose daily sanctions until the

Association completed the repairs, and award Owner its attorney

fees and costs.

¶7 In response, the Association requested — and the court

granted — two extensions of time to complete the required repairs,

extending the deadline to October 2023. But when the Association

sought a third extension, the court declined to extend the deadline

further, observing that the Association had had “ample time” to

complete the repairs and comply with the Judgment.

¶8 The court then held a six-day contempt hearing. After

considering the evidence, the court declined to hold the Association

in contempt. It found that, although “there are a couple items left

to do,” the Association had “substantially complied” with the

Judgment.

¶9 Shortly after that ruling, the Association filed a motion for

attorney fees and costs. It claimed it was entitled to fees and costs

3 under the Act, the Declaration, C.R.C.P. 54, and Rule 107(d) for

successfully defending the contempt motion.

¶ 10 The court denied the Association’s motion. It found no legal

basis to award fees and costs for defending a contempt action and

rejected the Association’s attempt to “reframe the dispute as

relating back to an enforcement of the Declaration[] and under [the

Act].”

II. Analysis

¶ 11 The Association contends that the district court erred by

denying its request for attorney fees and costs. It specifically

argues that, “as the prevailing party” in the contempt proceeding, it

is entitled to attorney fees and costs under the Declaration or,

alternatively, under the Act. We disagree.

A. The Association Isn’t Entitled to Attorney Fees Under the Declaration

¶ 12 The Association first contends that it is entitled to its attorney

fees and costs under section 4.6 of the Declaration because it

successfully defended the contempt action.

¶ 13 “[W]e interpret contractual fee-shifting provisions de novo.”

W. Stone & Metal Corp. v. DIG HP1, LLC, 2020 COA 58, ¶ 12; see

4 also Francis v. Aspen Mountain Condo. Ass’n, 2017 COA 19, ¶ 9

(interpreting the terms of a condominium declaration de novo).

¶ 14 Section 4.6 of the Declaration provides:

Rights of Action. The Association, on behalf of itself, and any aggrieved Owner shall be granted a right of action against any and all Owners for failure to comply with the provisions of the Association Documents, or with decisions of the Board of Directors made pursuant to authority granted to the Association in the Association Documents. Individual Owners shall have a right of action against the Association for failure to comply with the provisions of the Association Documents or with decisions of the Board of Directors made pursuant to authority granted to the Association in the Association Documents. In any action covered by this Section, the Association, or any Owner, shall have the right, but not the obligation, to enforce the Association Documents by any proceeding at law or in equity, or as set forth in the Association Documents, or by mediation or binding arbitration if the parties so agree. The prevailing party in any arbitration, or judicial relief, shall be entitled to reimbursement from the non-prevailing party or parties for all reasonable costs and expenses, including attorneys’ fees in connection with such arbitration or judicial relief.

(Emphasis added.)

¶ 15 Construing the plain language of section 4.6, the Association

is entitled to attorney fees only if it prevails in an action “covered by

5 this [s]ection.” See Francis, ¶ 9 (interpreting condominium

declarations according to their plain and ordinary meaning). The

covered actions are limited to those filed “for failure to comply with

the provisions of the Association Documents” or with authorized

“decisions of the Board of Directors.” Thus, contrary to the

Association’s assertion — which ignores all but one sentence of

section 4.6 — section 4.6 does not extend to every judicial action,

much less every filing in an action in which the Association

prevails. See Quarky, LLC v. Gabrick, 2024 COA 76, ¶ 11

(construing the terms of a condominium declaration as a whole).

¶ 16 To the extent the Association claims that the contempt action

is a covered action under section 4.6, we disagree. Owner obtained

the Judgment in its action against the Association for breach of the

Declaration. In the motion for contempt, Owner simply sought to

enforce the Judgment. For that reason, Owner brought the action

under Rule 107 (which governs contempt actions), not under the

Declaration. And the contempt motion did not assert any claims (or

seek attorney fees) under the Declaration.

¶ 17 In re Marriage of Sanchez-Vigil, 151 P.3d 621 (Colo. App. 2006)

— to which the Association directs us — changes nothing. In that

6 case, a husband and a wife entered into a separation agreement

that included a prevailing party fee-shifting provision. The court

incorporated the agreement into the dissolution decree and “entered

[it] as a permanent order of the court.” Id. at 622. When husband

failed to comply with the separation agreement, wife moved for

contempt and requested attorney fees and costs under the

agreement. Although the court found husband in contempt, it

concluded fees were not available for criminal contempt under Rule

107. Id. A division of this court reversed, concluding that the plain

language of the separation agreement entitled wife to attorney fees.

Id. at 623. But, as already explained, Owner sought contempt

under Rule 107 to enforce the Judgment, which — unlike the court-

ordered separation agreement in Sanchez-Vigil — has no fee-shifting

provision.

¶ 18 That leaves the Association’s claim that, because the court

awarded attorney fees and costs to Owner for enforcing the

Declaration, it was “clearly arbitrary” to deny the Association the

attorney fees and costs it incurred to defend the contempt motion.

In its original complaint, however, Owner asserted claims under the

Declaration. Because Owner prevailed on its claim that the

7 Association breached the Declaration, it was entitled to attorney

fees under section 4.6. Defending the contempt motion, in which

Owner simply sought to enforce the Judgment, isn’t the same.

¶ 19 For these reasons, the Association is not entitled to an award

of its attorney fees and costs under the Declaration for successfully

defending the contempt action.

B. The Association Isn’t Entitled to Attorney Fees Under the Act

¶ 20 In the alternative, the Association argues that the district

court erred by not awarding it attorney fees and costs under the

Act. We disagree for two reasons.

¶ 21 First, whether the Act’s fee-shifting provision applies depends

on the purpose of the litigation. Colo. Homes, Ltd. v. Loerch-Wilson,

43 P.3d 718, 723 (Colo. App. 2001). And because the purpose of

the contempt action was to enforce the Judgment, not to enforce

the Act or the Declaration, the fee-shifting provision did not apply.

See § 38-33.3-123(1)(c)(I), C.R.S. 2025 (“In any civil action to

enforce or defend [the Act] or the declaration, . . . the court shall

award reasonable attorney fees . . . to the prevailing party.”); see

also Platt v. Aspenwood Condo. Ass’n, 214 P.3d 1060, 1068 (Colo.

App. 2009) (rejecting claim that the fee-shifting provision applied

8 where neither the claims nor the counterclaims “were to enforce or

defend the [Act]”).

¶ 22 Second, and more fundamentally, as outlined in detail in the

Judgment, Owner — not the Association — prevailed in the overall

action. That the court didn’t hold the Association in contempt

doesn’t make it the prevailing party in the action. For this reason

alone, the Association isn’t entitled to fees under the Act. Far

Horizons Farm, LLC v. Flying Dutchman Condo. Ass’n, 2023 COA 99,

¶¶ 21, 25, 29 (construing the Act’s fee-shifting provision to apply to

the party that prevailed in the action as a whole, not as to a claim

or defense).

C. The Association’s Remaining Contentions

¶ 23 We decline to review the Association’s general assertion that

the district court erred by not awarding it attorney fees and costs

under Rule 54(d). Beyond reciting the text of Rule 54(d), and the

fact that the Rule only applies to costs, the Association does not

develop any argument about its entitlement to an award under Rule

54(d) or explain how the district court erred by not awarding it costs

under that Rule. We don’t address unsupported arguments. See

Pilmenstein v. Devereux Cleo Wallace, 2021 COA 59, ¶ 52.

9 ¶ 24 To the extent the Association argued before the district court

that it was entitled to attorney fees under Rule 107, it has now

abandoned that argument and we do not address it. See McLellan

v. Weiss, 2024 COA 114, ¶ 10 n.2 (arguments raised below but not

raised on appeal are deemed abandoned).

III. Appellate Attorney Fees

¶ 25 In a single sentence without citation, the Association requests

an award of attorney fees and costs “for this appeal pursuant to the

Declaration[].” Because the Association does not “explain the legal

and factual basis” for its request, we decline to consider it. C.A.R.

39.1; see also Andres Trucking Co. v. United Fire & Cas. Co., 2018

COA 144, ¶ 63 (declining to consider request for attorney fees where

requesting party did not provide any supporting factual recitation or

legal authority).

¶ 26 Owner also seeks an award of appellate attorney fees. It

argues that the Association’s appeal is substantially vexatious and

asks us to award attorney fees under section 13-17-102(2), C.R.S.

2025. This is a closer call. But we ultimately cannot conclude that

the appeal — though unsuccessful — is so lacking in substantial

justification as to warrant an attorney fee award under that statute.

10 IV. Disposition

¶ 27 The order is affirmed.

JUDGE LIPINSKY and JUDGE KUHN concur.