Frisco Lot v. Giberson Preserve

2024 COA 125, 564 P.3d 1061

• Court: Colorado Court of Appeals
• Decided: December 12, 2024
• Docket: 22CA2219
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY December 12, 2024

2024COA125

No. 22CA2219, Frisco Lot v. Giberson Preserve — Real Property — Common Interest Communities — Common Interest Ownership Act; Colorado Rules of Appellate Procedure — Briefs in Cases Involving Multiple Appellants and Appellees

In this property dispute, a division of the court of appeals sets

forth, as a matter of first impression, the test to determine whether

a subdivision created before the enactment of the Colorado

Common Interest Ownership Act (CCIOA) qualifies as a

common-interest community. Drawing from Evergreen Highlands

Ass’n v. West, 73 P.3d 1, 8 (Colo. 2003), and the Restatement

(Third) of Property: Servitudes (Am. L. Inst. 2000), the division

concludes that a pre-CCIOA common-interest community exists

when individual properties are burdened with a servitude that

imposes an obligation to either (1) pay for the use of or contribute to

the maintenance towards commonly held or enjoyed property or (2) pay dues or assessments to an association that provides a

service or enforces a servitude on commonly held or enjoyed

property.

Additionally, the division concludes that under C.A.R. 28(h), a

party may not both file a separate brief and incorporate by reference

the brief of another party. Such a violation of Rule 28(h) may result

in the striking of any improperly incorporated argument. COLORADO COURT OF APPEALS 2024COA125

Court of Appeals No. 22CA2219 Summit County District Court No. 19CV30037 Honorable Karen A. Romeo, Judge

Frisco Lot 3 LLC, a Colorado limited liability company; Frisco Lot 4 LLC, a Colorado limited liability company; and the Jeffery W. Sandri Revocable Trust,

Plaintiffs-Appellants and Cross-Appellees,

v.

Giberson Limited Partnership, LLLP, a Colorado limited liability limited partnership; Giberson Preserve Homeowners Association, Inc., a Colorado nonprofit corporation; Mark Timberlake, Board Member; Chad G. Asarch, Board Member; and Gary Giberson, Board Member,

Defendants-Appellees and Cross-Appellants,

and

Gary Giberson; Gloria Giberson; Daniel J. Ferrari; and Colorado Open Lands, a Colorado nonprofit organization, f/k/a Continental Divide Land Trust,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE KUHN Gomez and Richman*, JJ., concur

Announced December 12, 2024

Ciancio Ciancio Brown, P.C., Marc J. Kaplan, Denver, Colorado, for Plaintiffs-Appellants and Cross-Appellees Anderson Notarianni McMahon LLC, Joshua D. McMahon, Denver, Colorado, for Defendant-Appellee and Cross-Appellant Giberson Limited Partnership, LLLP

Hall Booth Smith, P.C., Elizabeth C. Moran, Bradley N. Shefrin, Greenwood Village, Colorado, for Defendants-Appellees and Cross-Appellants Giberson Preserve Homeowners Association, Inc., Chad G. Asarch, Mark Timberlake, and Gary Giberson

Foster Graham Milstein & Calisher LLP, Michael G. Milstein, Steven J. Wienczkowski, Denver, Colorado, for Defendants-Appellees Gary Giberson and Gloria Giberson

Daniel J. Ferrari, Pro Se

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Bill E. Kyriagis, Nicholas Gunther, Denver, Colorado, for Defendant-Appellee Colorado Open Lands

Conservation Law, P.C., Jessica E. Jay, Evergreen, Colorado, for Amici Curiae Land Trust Alliance, Keep it Colorado, Great Outdoors Colorado, Aspen Valley Land Trust, Colorado Cattlemen’s Agricultural Land Trust, Colorado Headwaters Land Trust, Colorado West Land Trust, Crested Butte Land Trust, Estes Valley Land Trust, Montezuma Land Conservancy, and Palmer Land Conservancy

*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 real property appeal, we consider whether a 1989

“Planned Unit Development Designation” and Plat created a

common-interest community before the enactment of the Colorado

Common Interest Ownership Act (CCIOA). Drawing from Evergreen

Highlands Ass’n v. West, 73 P.3d 1, 8 (Colo. 2003), and the

Restatement (Third) of Property: Servitudes (Am. L. Inst. 2000), we

hold that a pre-CCIOA common-interest community exists when:

(1) individual properties are (2) properly burdened with a servitude

that imposes an obligation to either (a) pay for the use of or

contribute to the maintenance of commonly held or enjoyed

property or (b) pay dues or assessments to an association that

provides a service or enforces a servitude on commonly held or

enjoyed property. We then determine that the original owners failed

to create a common-interest community. Consequently, we

conclude that later lot owners are not subject to a subsequently

created homeowners’ association (HOA).

¶2 Additionally, we hold that under C.A.R. 28(h), a party may not

both file a separate brief and incorporate by reference the brief of

another party. Such a violation of Rule 28(h) may result in the

striking of any improperly incorporated argument.

1 ¶3 Finally, as described fully below, the parties raise various

challenges to the trial court’s (1) denial of a motion to dismiss;

(2) grant of summary judgment; and (3) correction of a mistake in

the judgment. The parties also challenge (4) the effect of the trial

management order along with the court order permitting counsel to

withdraw and (5) the court’s application of trust law to this dispute.

We affirm in part, reverse in part, and remand with directions.

I. Background and Procedural History

¶4 This property dispute traces its origins to 1909 when the

Giberson family received a 188-acre tract of land in Summit County

under the Homestead Act. Eighty years later, Charles Howard

Giberson and Lura Belle Giberson (collectively, Giberson) executed

the “Planned Unit Development Designation” (PUD). The PUD

subdivided their land into thirteen residential lots and a large open

space known as the Giberson Preserve. Giberson submitted the

PUD and the subdivision Plat1 to the county, and the Summit

1 A plat is “a map describing a piece of land and its features, such

as boundaries, lots, roads, and easements.” Black’s Law Dictionary 1391 (12th ed. 2024).

2 County Board of County Commissioners (BOCC) approved it in

1989. It was promptly recorded.

¶5 About ten years later, Giberson executed a “Deed of

Conservation Easement” granting the Continental Divide Land

Trust an easement over land known as the conservation property.

The land trust subsequently merged with Colorado Open Lands

(COOL), a defendant-appellee. The conservation easement

encumbered the open space with the intent of perpetually

preserving its “agricultural character, wildlife habitat, open space

and scenic qualities.” After Charles Giberson passed away,

Giberson Limited Partnership (GLP), a defendant-appellee and

cross-appellant, took over his duties as the grantor of the

conservation property.

¶6 In 2006, Daniel J. Ferrari, also a defendant-appellee,

cross-claimant, and cross-appellee, became the first nonfamily

member to purchase one of the residential lots. While conducting

his prepurchase due diligence on the lot, he discovered the PUD

and a set of unrecorded draft covenants but did not find an existing

HOA. So Ferrari purchased Lot 8 and built a home, believing that it

was not within a common-interest community. He was the first to

3 build a home on any of the thirteen residential lots. Approximately

two years later, Jeffery Sandri acquired Lots 3, 4, and 9. On

Sandri’s behalf, the lots are held by plaintiffs-appellants and

cross-appellees Frisco Lot 3 LLC, Frisco Lot 4 LLC, and the Jeffery

W. Sandri Revocable Trust (collectively, Sandri).

¶7 One of the main disputes in this case involves the proper

formation and authority of an HOA. In 2008, the Summit County

planning department wrote to the property owners within the

Giberson Preserve, notifying them that although the PUD required

an HOA, one had never been created and was long overdue.

Despite this notice, the lot owners did not form an association. In

2015, Chad G. Asarch — another lot owner, defendant-appellee,

and cross-appellant — filed articles of incorporation for the

“Giberson Preserve Homeowners Association,” but the association

neither held formal meetings nor recorded any covenants.

¶8 Finally, in February 2016, Summit County sent a notice of

zoning violation to GLP because no one had yet submitted the

required HOA covenants. The letter said that the county would

hold all building permits in abeyance until the lot owners executed

and recorded the HOA covenants. By late 2016, a group consisting

4 of most of the lot owners had drafted and signed a set of covenants

(2017 covenants). But Sandri and Ferrari were not part of this

group. After the other lot owners submitted the signed covenants to

the county, the BOCC held a hearing to approve the covenants and

amend the PUD.

¶9 Sandri and Ferrari opposed the 2017 covenants on multiple

grounds. As relevant to this appeal, they argued that the covenants

(1) prevented lot owners from leasing, subleasing, or renting their

lot or home for a period of less than six months without HOA

approval, effectively restricting the use of the lots for vacation

rentals; (2) gave the HOA exclusive architectural control over any

permanent improvements to landscaping, sheds, or homes; and

(3) allowed the HOA to assess a tap fee and usage fee for water

against the various lots. It is uncontested that the 2017 covenants

were drafted and recorded after Sandri and Ferrari acquired their

lots.

¶ 10 Sandri initiated this lawsuit in March 2019, and the parties

have since engaged in protracted litigation and motions practice.

The initial defendants included GLP and defendant-appellee and

cross-appellant Giberson Preserve Homeowners Association as well

5 as its board members Asarch, Mark Timberlake, and Gary Giberson

(collectively, GHOA). In January 2021, after nearly two years of

litigation, the court disposed of the parties’ cross-motions for partial

summary judgment, encompassing part of Sandri’s claims, Ferrari’s

counterclaims and cross-claims, and GHOA’s counterclaims and

cross-claims. The court held that a common-interest community

was not created in 1989.

¶ 11 Based on that holding, and as relevant to this appeal, the trial

court resolved the following claims brought by the various parties.

For Sandri’s and Ferrari’s separately brought claims, the court

found that (1) their lots were not part of a common-interest

community; (2) the Plat and PUD did not constitute a declaration

that created a common-interest community; (3) the HOA did not

govern their lots; and (4) the 2017 covenants did not encumber

their lots. The court also determined that under the application of

trust law to the conservation easement, (5) Sandri’s guests, invitees,

permittees, heirs, successors, and assigns were entitled to use the

conservation property for noncommercial recreational purposes,

and an amendment to the easement that would have altered their

rights was not effective. Additionally, the court denied GHOA’s

6 separate claims that (6) Sandri’s and Ferrari’s lots are within the

HOA and governed by the HOA.

¶ 12 Subsequently, COOL joined the litigation and filed a motion to

reconsider the court’s application of trust law, instead of property

law, to the amendment of the conservation easement. In March

2021, the trial court reconsidered its summary judgment order,

applied both legal frameworks, and reached the same conclusion as

it had originally.

¶ 13 Within a week of the order on the motion for reconsideration,

and approximately three weeks before the scheduled April bench

trial, Sandri’s counsel filed an unopposed motion to withdraw,

prompting a flurry of urgent motions. The trial court granted the

withdrawal and then continued the bench trial. The bench trial

then took place in multiple parts over the course of approximately a

year, beginning in June 2021 and concluding with the trial court’s

August 2022 “Findings of Fact and Conclusions of Law” (the trial

order).

¶ 14 In November 2021, during the pendency of the bench trial, the

trial court granted in part and denied in part defendants’ C.R.C.P.

41(b)(1) motions, disposing of a portion of Sandri’s and Ferrari’s

7 claims. The next day, it denied another homeowner’s2 motion to

dismiss for lack of subject matter jurisdiction, which argued that

the case could only be brought under C.R.C.P. 106.

¶ 15 Finally, after the court issued the trial order, Sandri

interpreted that order as having moved the location of a private

access easement road. So he blocked the road. This prompted

GHOA to file an emergency motion under C.R.C.P. 60(a) asking the

court to correct the trial order to state that it had not moved the

road. The trial court granted the Rule 60 motion, and about a

month later, the parties appealed.

¶ 16 GLP and GHOA appeal the trial court’s grant of summary

judgment against them and challenge its subject matter

jurisdiction. GLP also appeals the trial court’s application of trust

law and ruling that the conservation easement was not properly

amended. COOL does not take a position regarding the outcome of

these issues but challenges the trial court’s application of trust law

2 Kathryn Flores filed a C.R.C.P. 41(b)(1) motion to dismiss in the

trial court. Flores is another homeowner who was involved in the underlying litigation, but she is not a party to this appeal.

8 to the conservation easement. Neither Ferrari nor Sandri oppose

the relief requested by COOL.

II. Improper Incorporation by Reference

¶ 17 Before turning to the merits of this appeal, we first address

GLP’s use of C.A.R. 28(h) to incorporate GHOA’s arguments by

reference. In its opening-answer brief, GLP addresses the issues on

appeal in a little over two pages. Instead of making its own

arguments, it purports to “incorporate[] by reference” four of

GHOA’s arguments from its opening-answer brief “[p]ursuant to

C.A.R. 28(h).” GLP’s attempt to incorporate another party’s briefing,

despite filing its own brief, is improper and represents a

misunderstanding of Rule 28(h).

In cases involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a single brief, and any party may adopt by reference any part of another’s brief, but a party may not both file a separate brief and incorporate by reference the brief of another party.

C.A.R. 28(h) (emphasis added).

¶ 18 GLP relies on the phrase from Rule 28(h) stating that “any

party may adopt by reference any part of another’s brief.” But in

9 doing so, it skips the modifying provision following that phrase,

which explicitly prohibits that practice when a party has filed a

separate brief.

¶ 19 Other divisions of this court have held that incorporation by

reference to briefing in the district court is improper. People v.

Phipps, 2016 COA 190M, ¶ 11; Castillo v. Koppes-Conway, 148 P.3d

289, 291 (Colo. App. 2006). This is partially because attempting to

incorporate material by reference “‘makes a mockery’ of the rules

that govern the length of briefs.” Castillo, 148 P.3d at 291 (quoting

Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d

1164, 1167 n.4 (11th Cir. 2004)).

¶ 20 That is exactly what GLP’s actions do here. GLP was allowed

9,500 words for its opening-answer brief. See C.A.R 28.1(g)(1). Its

opening-answer brief contains 8,846 words. But the sections of

GHOA’s briefing that it purports to incorporate by reference

constitute approximately 3,000 additional words. This leaves GLP’s

total word count at just under 12,000 words — more than 2,000

words over the limit permitted by the rules.

¶ 21 GLP’s brief does not comply with Rule 28(h) because GLP both

filed a separate brief and incorporated by reference the brief of

10 another party. An “appellate court may dismiss an appeal or other

appellate proceeding or impose other sanctions it deems

appropriate, including attorney fees, for the failure to comply with

any of its orders or these appellate rules.” C.A.R. 38(a). We

therefore strike the following sections of GLP’s opening-answer brief

that incorporate by reference: answer sections I.B., II.B., III., and

cross-appeal section III.B.

III. Analysis

¶ 22 GLP and GHOA argue that the trial court erred by

(1) concluding that the PUD didn’t create a common-interest

community and (2) failing to dismiss the case for lack of subject

matter jurisdiction. Sandri contends that the trial court erred by

(3) granting GHOA’s Rule 60 motion3 and (4) issuing its April 2021

pretrial orders. GLP and COOL also contend that the trial court

erred by (5) misapplying the law governing the conservation

easement.

¶ 23 We note that the trial court’s summary judgment order,

Rule 41 order, trial order, and Rule 60 order are thorough, detailed,

3 GHOA brought the Rule 60 motion, which was joined by GLP.

11 and well reasoned. We affirm the trial court’s Rule 60 order, but, as

a consequence, we reverse that portion of the judgment concerning

Sandri’s claim against GLP that the 2017 covenants impermissibly

expanded the scope of an easement across his property. We affirm

the trial court’s orders in all other regards.

A. Whether a Common-Interest Community Was Created by the PUD and Plat in 1989

¶ 24 We first turn to GLP and GHOA’s cross-appeal in which they

jointly contend that the trial court erred by finding that the PUD

and Plat didn’t create a common-interest community in 1989. We

disagree.

1. Applicable Law and Standard of Review

¶ 25 The Colorado legislature enacted CCIOA, sections 38-33.3-101

to -401, C.R.S. 2024, in 1992. This act established a

comprehensive statutory scheme for common-interest communities,

particularly HOAs. CCIOA automatically applies in its entirety to

common-interest communities “created” in the state after its

effective date of July 1, 1992. Accetta v. Brooks Towers Residences

Condo. Ass’n, 2021 COA 87, ¶ 30; § 38-33.3-115, C.R.S. 2024. It

generally does not apply to communities created before that date.

12 Accetta, ¶ 30; § 38-33.3-117(3), C.R.S. 2024. CCIOA’s provisions

containing the necessary prerequisites to properly form a

common-interest community are not retroactive. See

§§ 38-33.3-117, -201, C.R.S. 2024.

¶ 26 We review summary judgment orders de novo, “recognizing

that summary judgment is appropriate only where there are no

disputed issues of material fact and the moving party is entitled to

judgment as a matter of law.” Beeftu v. Creekside Ventures LLC, 37

P.3d 526, 528 (Colo. App. 2001). We also review de novo the

interpretation of a written document as a question of law. GMAC

Mortg. Corp. v. PWI Grp., 155 P.3d 556, 557 (Colo. App. 2006).

2. The PUD and Plat Did Not Create a Common-Interest Community

¶ 27 GLP and GHOA argue that the PUD and Plat created a

common-interest community in 1989, years before CCIOA went into

effect. The PUD set forth a water system, access roads, and

maintenance responsibilities. It explicitly said that “a homeowners

association” would be responsible for necessary maintenance. The

PUD also envisioned the later filing of HOA covenants prior to final

approval of the PUD, which would, among other things, “delineate

13 the responsibilities for the maintenance of roads.” However,

Giberson never recorded the anticipated HOA covenants, and

Summit County approved and recorded the PUD and the final Plat

without receiving them.

¶ 28 The trial court analyzed this issue under both the common law

and CCIOA but rightly recognized that CCIOA was not controlling.

On appeal, all parties agree that CCIOA does not control the

creation of a common-interest community here.

¶ 29 The parties do not cite, nor are we aware of, any controlling

case law that explicitly sets forth the standard for creating a

common law common-interest community. However, as the trial

court noted, section 6 of the Restatement (Third) of Property:

Servitudes provides a useful and persuasive overview of the general

common law principles applicable to common-interest communities.

¶ 30 The Restatement defines a common-interest community as

a real-estate development or neighborhood in which individually owned lots or units are burdened by a servitude that imposes an obligation that cannot be avoided by nonuse or withdrawal

(a) to pay for the use of, or contribute to the maintenance of, property held or enjoyed in common by the individual owners, or

14 (b) to pay dues or assessments to an association that provides services or facilities to the common property or to the individually owned property, or that enforces other servitudes burdening the property in the development or neighborhood.

Id. § 6.2.

¶ 31 The Colorado Supreme Court has found the Restatement

persuasive in analyzing similar common-interest community issues,

see Evergreen Highlands, 73 P.3d at 8, albeit in the context of

CCIOA communities. We do the same here. We hold that — as

described by the Restatement’s definition — a pre-CCIOA

common-interest community exists when (1) individual properties

are (2) properly burdened with a servitude that imposes an

obligation to either (a) pay for the use of or contribute to the

maintenance of commonly held or enjoyed property or (b) pay dues

or assessments to an association that provides a service or enforces

a servitude on commonly held or enjoyed property.

¶ 32 This test aligns with other related principles described by the

Restatement. See Restatement (Third) of Prop.: Servitudes § 6.1

cmt. a (“Common-interest communities are usually created by a

declaration of servitudes that, at a minimum, imposes use

15 restrictions and assessment obligations and provides for creation of

an association.”); Restatement (Third) of Prop.: Servitudes § 6.5

cmt. a (“By definition, a common-interest community covered by

this Chapter is one in which the individual properties are burdened

by a servitude requiring that the property owner either contribute to

the support of common property or pay dues or assessments to a

property-owners association.”).4

¶ 33 Having established a test to determine whether documents

create a pre-CCIOA common-interest community, we now apply it to

the issue before us.

¶ 34 The PUD satisfied the first factor of the test by subdividing the

original land into individual properties. The PUD created thirteen

residential lots, a road tract, and three agricultural or open spaces.

However, it fails to satisfy the second factor. By its plain language,

the PUD does not burden the lots with a servitude that imposes an

4 This test also aligns with the supreme court’s test to determine

what documentation is necessary to create a common-interest community under CCIOA. See Pulte Home Corp. v. Countryside Cmty. Ass’n, 2016 CO 64, ¶ 44 (“[F]or one or more documents to create a common-interest community (and hence amount to a declaration), they must, at a minimum, (1) establish an obligation to pay for various expenses associated with common property and (2) attach that obligation to individually owned property.”).

16 obligation to either pay for or maintain commonly held or enjoyed

property or to pay assessments to an HOA.

¶ 35 It’s true that the PUD defines some services that will be

provided to the thirteen residential lots, such as water and a private

road. And it goes as far as stating that an HOA will provide the

water services and road maintenance in the future.

¶ 36 It’s also true that the PUD envisioned the eventual creation of

that HOA. The PUD stated that “[Giberson] must submit covenants

for the homeowners association for review by the County. The

covenants shall delineate the responsibilities for the maintenance of

roads, sewer systems, water systems, and landscaping in common

areas as an obligation of the homeowners association.” But it’s

clear from the record in this case that Giberson never completed the

key step of timely submitting and recording HOA covenants, though

the record doesn’t reveal the reason for that omission. Regardless,

the PUD is missing a key feature required by the second factor: It

does not explicitly provide any means for an assessment against the

lots or require that the property owners contribute to the support of

common property.

17 ¶ 37 GHOA and GLP ask us to look beyond the plain language of

the PUD and conclude that the obligation to pay assessments is

implied, and therefore, a common-interest community was also

created by implication. We decline the invitation.

¶ 38 GHOA and GLP argue that Evergreen Highlands controls this

matter and that an implied obligation must exist to avoid placing

the HOA “in the untenable position of being obligated to maintain

facilities and infrastructure without any viable economic means by

which to do so.” 73 P.3d at 4. However, as the trial court rightly

noted, Evergreen Highlands is factually distinguishable from the

matter before us.

¶ 39 In that case, the supreme court noted that “[a]t the time [the

homeowner] purchased his lot in 1986, the [HOA] declarations

made clear that a homeowners association existed, it owned and

maintained the park area, and it had the power to impose annual

membership or use fees on lot owners.” Id. at 9. The supreme

court found that these facts were sufficient to create a

common-interest community within the meaning of CCIOA by

implication. In reaching this conclusion, the court quoted the

Restatement:

18 An implied obligation may . . . be found where the declaration expressly creates an association for the purpose of managing common property or enforcing use restrictions and design controls, but fails to include a mechanism for providing the funds necessary to carry out its functions. When such an implied obligation is established, the lots are a common-interest community within the meaning of this Chapter.

Id. (quoting Restatement (Third) of Prop.: Servitudes § 6.2 cmt. a).

¶ 40 In Evergreen Highlands, then, the supreme court answered

two questions. First, it decided whether common-interest

communities have the implied power to levy assessments for

maintaining common property. Then it decided whether the

explicitly created pre-CCIOA HOA had sufficient features from

which the court could consider the subdivision an implied

common-interest community under CCIOA. GHOA’s argument

collapses the reasoning from these two questions. The Evergreen

Highlands court didn’t conclude that the subdivision was a

common-interest community because the HOA had a need to levy

assessments. The court concluded that the HOA could levy

assessments because the subdivision already met the definition of a

19 common-interest community, and common-interest communities

have the power to levy assessments.

¶ 41 But here, no such HOA or common-interest community

existed when Ferrari or Sandri purchased their lots. And while we

“must construe covenants as a whole based upon their underlying

purpose, [we] will enforce a covenant as written if clear on its face.”

Evergreen Highlands, 73 P.3d at 3. “Ambiguities will be resolved in

favor of the free and unrestricted use of property.” Id. Applying

those principles here, we see no such indication of a pre-existing

HOA. While the PUD envisioned one, no HOA had been created, no

covenants had been recorded, and no association had been

maintaining the common areas.

¶ 42 GLP and GHOA also rely on DeJean v. Grosz, 2015 COA 74,

¶ 30, in which another division of this court analyzed a similar

issue, though guided by CCIOA instead of the common law. In that

case, a declaration notified potential purchasers that they were

automatically members of an HOA. The division concluded that the

HOA could “be formed, even after a delay, by another homeowner.”

Id. But unlike the matter before us, the covenants in DeJean

“subject[ed] the owners of both units to automatic membership in

20 the [HOA] [and were] intended to run with the land.” Id. at ¶ 36.

The division therefore concluded that “the DeJeans had notice and

consented to be members of the [HOA] when they acquired title” to

their property. Id.

¶ 43 Here, neither Sandri nor Ferrari took title to the land with

notice that they would automatically be members of a

common-interest community. To the contrary, the trial court found

that Ferrari — the first person to build a residence on the lots —

conducted extensive due diligence, discovered the PUD, and

believed that his lot was not within a common-interest community.

The trial court also found that, in fact, the PUD didn’t describe in

any manner which lots would be members of any HOA or how such

an HOA would be funded.

¶ 44 While Evergreen Highlands and DeJean inform our analysis,

the matter before us is the most similar to the facts in McMullin v.

Hauer, 2018 CO 57. There, a land dispute concerned the

ownership of seventeen acres of “common open space” in a

purported common-interest community. Id. at ¶ 1. Two developers

recorded a final plat intending to develop a rural subdivision. Id.

21 ¶ 45 “[T]he recorded final plat included a map of the seventeen

acres of common open space, and notices on the final plat provided

that a ‘private access road,’ domestic wells to service the

subdivision, and ‘common ownership and maintenance’ would be

the responsibility of the ‘Home Owner’s Association.’” Id. at ¶ 5.

The final plat also stated that covenants accompanying the

subdivision “are filed in the office of the Rio Blanco County Clerk

and Recorder in Book __ Page __.” Id. However, no such covenants

were filed. Id. Seven of the lots were sold to three different parties,

and subsequently, those lot owners sued to quiet title to the

properties and the open space. Id.

¶ 46 The McMullin court determined that under CCIOA, “these

documents, even taken together, do not expressly obligate the lot

owners to pay for expenses associated with the common property,

let alone attach that obligation to individually owned property.” Id.

at ¶ 20. The court went on to draw a clear distinction between the

case before it and the facts of Evergreen Highlands: “[Q]uite unlike

the situation in this case, the declarations in Evergreen Highlands

‘made clear that a homeowners association existed, it owned and

maintained the park area, and it had the power to impose annual

22 membership or use fees on lot owners.’” McMullin, ¶ 23 (quoting

Evergreen Highlands, 73 P.3d at 9). The court determined that this

sharp contrast showed why the policy concerns necessitating an

assessment obligation by implication in Evergreen Highlands were

not present in McMullin. Id. at ¶ 24.

¶ 47 The court then held that

the recorded plat, the deeds, and the subdivision agreement, taken together, do not amount to a declaration sufficient under CCIOA to establish a common-interest community. Collectively, these documents do not obligate homeowners to pay expenses related to commonly owned space, do not expressly create a homeowners’ association, and lack too many statutorily prescribed components. Moreover, the primary concern animating our decision in Evergreen Highlands — i.e., saving a homeowners’ association from the “untenable position of being obligated to maintain facilities and infrastructure without any viable economic means by which to do so” — is not present here.

McMullin, ¶ 29 (quoting Evergreen Highlands, 73 P.3d at 4).

¶ 48 It’s true that McMullin was decided under CCIOA. But the

legal principles animating it are similar to, if not the same as, those

underlying the common law. And it wrestled with nearly identical

facts. Here, the recorded PUD and Plat included a map outlining

23 common-ownership space and described road maintenance, the

water and sewer system, and common area landscaping as the

responsibility of an HOA. See id. at ¶ 19. And while HOA

covenants were envisioned, they were never recorded.

¶ 49 Additionally, the supreme court addressed the underlying

policy concerns that motivated the implied assessment obligation in

Evergreen Highlands. See McMullin, ¶ 24. Compared to McMullin,

there was an existing HOA in Evergreen Highlands that owned and

maintained the park area and had the power to impose annual

membership or use fees. See id. at ¶ 23. However, “[b]y contrast,

the recorded documents [in McMullin] did not expressly create a

homeowners’ association.” Id. at ¶ 25.

¶ 50 This lack of an existing HOA is a key distinction between

Evergreen Highlands and this case. And like McMullin indicates,

“the primary concern animating [the] decision in Evergreen

Highlands — i.e., saving [an existing] homeowners’ association from

the ‘untenable position of being obligated to maintain facilities and

infrastructure without any viable economic means by which to do

so’ — is not present here.” McMullin, ¶ 29.

24 ¶ 51 Accordingly, McMullin guides and reinforces our determination

that, taken together, the recorded PUD and Plat do not expressly

obligate the lot owners to pay for the use of or contribute to the

maintenance of commonly held or enjoyed property or to pay dues

or assessments to an association that provides a service or enforces

¶ 52 Further, the PUD and Plat do not create an assessment by

implication. The documents did not create an HOA (and

consequently there isn’t a pre-existing association that would

otherwise lie bereft of the ability to maintain the common areas,

despite its obligations to do so).

¶ 53 Thus, the trial court did not err by concluding that the PUD

and Plat did not create a common-interest community and,

therefore, that the 2017 covenants are not binding on Sandri and

Ferrari.

25 B. Subject Matter Jurisdiction

¶ 54 GHOA also challenges the trial court’s decision for lack of

subject matter jurisdiction.5 It argues that the BOCC’s hearing and

approval of a minor amendment to the PUD was a quasi-judicial

decision that required the lot owners to challenge encumbrances on

their lots through an action under C.R.C.P. 106(a)(4) brought within

twenty-eight days of the BOCC’s decision. We disagree.

1. Standard of Review

¶ 55 Rule 106(a)(4) “provides for review of quasi-judicial decisions

made by a governmental body or officer in a civil matter where the

law otherwise provides no plain, speedy, and adequate remedy.”

Brown v. Walker Com., Inc., 2022 CO 57, ¶ 1. Rule 106(a)(4) is the

exclusive remedy for reviewing quasi-judicial decisions. JJR 1, LLC

v. Mt. Crested Butte, 160 P.3d 365, 369 (Colo. App. 2007).

¶ 56 The review contemplated by this rule is narrow: “Courts

simply review the lower body or officer’s decision to determine

5 In its briefing, GHOA asserts that the trial court erred by denying

Flores’s Rule 41(b)(1) motion to dismiss. GHOA did not join in Flores’s motion below, so that motion does not preserve the argument for GHOA on appeal. But because a party can challenge the court’s subject matter jurisdiction at any time, Brooks v. Raemisch, 2016 COA 32, ¶ 10, we review the issue regardless.

26 whether it ‘has exceeded its jurisdiction or abused its

discretion . . . .’” Walker Com., ¶ 27 (quoting C.R.C.P. 106(a)(4)). A

Rule 106(a)(4) complaint must be filed within twenty-eight days of

the governmental body or officer’s final decision. C.R.C.P. 106(b).

¶ 57 A court’s lack of subject matter jurisdiction may not be waived

and can be raised at any time in a proceeding. Brooks v. Raemisch,

2016 COA 32, ¶ 10. We review the court’s determination whether it

has subject matter jurisdiction de novo. See City of Boulder v. Pub.

Serv. Co. of Colo., 2018 CO 59, ¶ 14. Similarly, we review de novo

the court’s determination whether a plaintiff’s complaint sought

review of a governmental body’s quasi-judicial functions or its

quasi-legislative actions. Farmers Water Dev. Co. v. Colo. Water

Conservation Bd., 2015 CO 21, ¶ 14.

2. Rule 106(a)(4) Doesn’t Govern This Dispute

¶ 58 GHOA argues that the trial court lacked subject matter

jurisdiction because Rule 106(a)(4) provided the exclusive remedy

for the lot owners to challenge the encumbrance of their lots.

¶ 59 On August 8, 2017, the BOCC approved a minor amendment

to the PUD. The amendment dealt only with a single provision,

section B.5, “Maintenance Responsibilities.” It amended that

27 provision to include, in major part, language to reflect that “the

County has reviewed and approved the . . . covenants [of the

HOA] . . . delineating maintenance responsibilities,” instead of the

previous language, which stated that “the County shall approve the

provisions of the covenants concerning maintenance

responsibilities.” (Emphasis added.)

¶ 60 The trial court found that the BOCC’s decision was not

quasi-judicial and, therefore, that the court had jurisdiction

because “the only action the BOCC took on August 8, 2017, was to

approve a very minor modification of [section B.5] of the Original

1989 Plat.” The court noted that there was no evidence that the

BOCC had deliberated about the covenants as a whole, taken

evidence, made findings on the record, or done anything other than

indicate that the minor amendment satisfied the outstanding

requirement of the PUD.

¶ 61 Most importantly, the court concluded that the BOCC’s

approval of the amendment did not determine the covenants’

validity, delineate the rights of the parties to this appeal, or resolve

the enforceability of the 2017 covenants on the lots at issue. To the

contrary, the record shows that the BOCC was aware of the ongoing

28 dispute between GLP and Sandri and Ferrari; it explicitly said that

enforcement of the 2017 covenants “will be a private matter to be

decided amongst the lot owners.”

¶ 62 We agree with the trial court’s conclusion. In reviewing this

matter, “our inquiry must focus on the nature of the governmental

decision and the process by which that decision is reached.”

Widder v. Durango Sch. Dist. No. 9-R, 85 P.3d 518, 527 (Colo. 2004).

And “‘[q]uasi-judicial’ decision making, as its name connotes, bears

similarities to the adjudicatory function performed by courts.” Id.

The question before the BOCC was an entirely separate matter from

the dispute between the parties to determine the enforceability of

the covenants in this litigation, and the minor amendment bore no

similarity to a court proceeding to determine the rights of the

parties. Thus, the amendment was not quasi-judicial. And even if

consideration of the amendment were quasi-judicial, that wouldn’t

have brought the completely separate issues involved in this

litigation under the purview of Rule 106(a)(4).

¶ 63 We discern no error in the trial court denying the motion to

dismiss for lack of subject matter jurisdiction.

29 C. The Rule 60 Order

¶ 64 Sandri contends that the trial court erred by granting GHOA’s

Rule 60 motion. We disagree. However, we do agree with an

underlying aspect of Sandri’s argument. The factual and legal

determinations of GLP’s and Sandri’s respective rights as to an

easement across one of Sandri’s lots are erroneous and require

reversal. We first address the Rule 60 order and the location of the

easement before turning to its exclusivity.

¶ 65 “Clerical mistakes in judgments, orders, or other parts of the

record[, including] errors . . . arising from oversight or omission,

may be corrected by the court at any time of its own initiative or on

the motion of any party and after such notice, if any, as the court

orders.” C.R.C.P. 60(a). We review a trial court’s decision

concerning the correction of clerical errors under Rule 60(a) for an

abuse of discretion. Reisbeck, LLC v. Levis, 2014 COA 167, ¶ 7. A

trial court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or when it misapplies the law.

Id.

30 ¶ 66 “When a court enters a judgment following a bench trial, that

judgment presents a mixed question of law and fact.” State Farm

Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. We apply a mixed

standard of review to such questions. We review the trial court’s

legal conclusions, including its application of the governing legal

standards, de novo, and we will not disturb its factual findings

unless they are clearly erroneous and not supported by the record.

See Jehly v. Brown, 2014 COA 39, ¶ 8. If the evidence is

conflicting, we may not substitute our own conclusions for those of

the trial court merely because there may be credible evidence

supporting a different result. Lawry v. Palm, 192 P.3d 550, 558

(Colo. App. 2008).

2. Additional Background

¶ 67 At the center of this issue is the location of the private access

easement serving Lots 7, 8, 9, and 10 (the PAE)6 as well as Sandri’s

6 We note that under the PUD and Plat, there are two private access

easements. The one running to Lots 11, 12, and 13 is not at issue on appeal. Thus, any reference to PAE solely encompasses the private access easement running to Lots 7, 8, 9, and 10.

31 and GLP’s respective rights under the easement and their ability to

control access to the PAE.

¶ 68 The PUD and Plat set forth the location of three roads within

the Gibson Preserve, one of which is the PAE. Sandri raised two

claims in relation to the PAE. First, Sandri argued that GLP

impermissibly expanded the geographic footprint of the PAE,

doubling its original width, when the road was graded and slightly

relocated. Second, Sandri argued that GLP, through the 2017

covenants, impermissibly expanded the scope of the easement.

¶ 69 We also note that prior to or at the bench trial, no party

claimed, nor does the record contain any indication, that the PAE

was moved from its historical location as depicted in the PUD and

Plat to another area within the development.

3. The Rule 60 Order Was Not in Error

¶ 70 After conducting the bench trial, the trial court rejected

Sandri’s first claim and found that the PAE’s width was not

expanded beyond twenty feet. The trial court then addressed the

second claim about the exclusivity of the PAE. In doing so, it

provided “a crude sketch of the property in question” and “added its

own markings showing the approximate location of pertinent

32 landmarks and easements.” One of these markings was a green

line that ran from the end of Giberson Road across the top of Lots

7, 8, 9, and 10. The trial court’s sketch is below, labeled as

Figure 1.

Figure 1

¶ 71 Figure 1 was the foundation of the Rule 60 motion. After

Sandri interpreted the green line as relocating the PAE and blocked

the road, GHOA filed its Rule 60 motion.

¶ 72 That motion argued that the court had mistakenly labeled the

PAE on the map: Instead of running down between Lots 8 and 9

before passing through Lot 9, the green line showed the PAE as

33 running continually along top of the lots to the border of Tract C.7

The trial court agreed, granted the motion, and clarified that it did

not intend to move the location of the PAE.

The Court now realizes the Court’s green line, intended to depict the approximate location of the “Private Access Easement (serving lots 7, 8, 9, 10)” is not in the correct location at Lots 9 and 10. Instead, the Court’s green line traversing across the tops of Lots 9 and 10 now has the PAE going through the Conservation Easement Tract C property; when in reality . . . the PAE traverses downward between the borders of Lots 8 and 9, before running horizontally near the bottom of Lot 9 where it ends at Lot 10.

The Court wholly rejects [Sandri’s] argument that [the trial order] determined that the PAE had been relocated and the diagram in question supports that finding.

The Court re-iterates that the location of the PAE is precisely where it is depicted in the Plat, PUD and Declaration.

The Plat contains a map of the PAE, as referred to in the court’s

trial order. A portion of that map, labeled as Figure 2, appears

below.8

7 Tract C consists of the private open space as depicted in Figure 1

above and Figure 2 below.

8 For clarity we have added a label for “Tract C” to Figure 2.

34 Figure 2 ¶ 73 Figure 2 clearly shows that the PAE runs across the border

between Lots 7 and 8 and Tract C, before turning down the borders

of Lots 8 and 9 and crossing the bottom of Lot 9 to reach Lot 10.

This map directly supports the trial court’s description of where the

PAE is located in its Rule 60 order and supports its finding that the

PAE was not moved outside of Lot 9.

¶ 74 Nonetheless, Sandri argues — without any supporting citation

to the record — that “[t]he Trial Order repeatedly said that the PAE

no longer crossed Lot 9 and was wholly located on Tract C,

immediately north of Lot 9, but still providing access to Lot 10.”

(Emphasis added.) We see no such language in the trial order. In

35 fact, the trial order does not say that the PAE was relocated in any

fashion.9

¶ 75 Moreover, the trial court was clear in its Rule 60 order that it

had not intended to move the PAE and that the PAE was not moved

from its approximate historical location depicted in Figure 2. As the

trial court explicitly ruled, “[I]ts depiction of the PAE . . . in the [trial

order]10 was merely a demonstrative depiction and was not intended

by the Court to re-draw the actual location of the PAE where it

traverses through Lots 9 and 10.”

¶ 76 “Appellate courts generally defer to a lower court’s

construction of its own rulings.” People in Interest of J.C., 2018

COA 22, ¶ 31. We give that deference to the trial court’s ruling that

it did not move the PAE. Moreover, the record supports this ruling.

Comparing the highlighted map in the trial order with the map in

9 We note that the trial order does reference the PAE being moved,

but the references are to the alleged increase in the PAE’s width and in the context of Sandri’s claim that the PAE was enlarged. Sandri does not claim that this is the language that supports his contention.

10 Represented in Figure 1 in this opinion.

36 the Plat, it is clear that the trial court simply made a mistake and

drew a portion of the green line in the wrong place.

¶ 77 Rule 60(a) “functions as a safety valve and allows the district

court to correct, at any time, an honestly mistaken judgment that

does not represent the understanding and expectations of the court

and the parties.” Levis, ¶ 8. We discern no error in the trial court’s

use of this rule to correct the improperly labeled diagram in its trial

order.

4. The Underlying Findings of Fact and Conclusions of Law Are in Error

¶ 78 Sandri also argues that the trial court’s diagram was not the

only basis for concluding that the PAE was moved and that other

substantive parts of the judgment demonstrate that conclusion.

Sandri asserts that references to GLP holding the servient estate

and the lot owners holding the dominant estate show that either the

trial court meant to move the PAE or that it introduced a

substantive error into its order that should have been remedied

under C.R.C.P. 59, not Rule 60. We agree with Sandri that some of

the language within the corrected trial order isn’t consistent with

some of the trial court’s findings regarding one of Sandri’s claims.

37 ¶ 79 After trial, the trial order resolved “all remaining portions of

Sandri’s [C.R.C.P.] 105 claim.” Specifically, Sandri had argued that

the 2017 covenants impermissibly expanded the scope of the PAE to

provide access not only to Lots 7 through 10 but also to the open

space. In resolving that claim, the trial court included the following

in the trial order:

• “To reiterate, the Court now concludes that [GLP] owns

the title to the land upon which the [PAE] sit[s].”

• “[GLP] can grant additional easement rights across its

own property.”

• “As the servient estate holder, [GLP] may make any use of

its own land.”

• “As of the date of trial, [GLP] continues to be the record

owner of the servient estate upon which the [PAE] sit[s].

Thus, as it stands and with regard to the [PAE], [GLP]

(and not [Giberson]) owns the servient estate and the lot

owners . . . hold the dominant estates.”

• “As the servient estate holder, [GLP] is most certainly

permitted to make any use of [its] property that [it] see[s]

38 fit, including granting other easements and access

rights.”

• “[B]ecause the [PAE] is not an ‘exclusive’ easement, [GLP],

as the servient estate holder, may continue to utilize its

property just as any property owner may do subject to

the restriction that it may not unreasonably interfere

with the already established easement rights of the

dominant estate holders.”

¶ 80 These statements are only true for the portion of the PAE that

runs across Tract C, approximately one quarter of its total area, as

depicted in Figure 2. This portion of the PAE is located on Tract C

along the border of Lots 7 and 8. Thus, the trial court is correct

that, as to the portion of the PAE running across Tract C, GLP holds

the servient estate, while the lot owners — who use the easement to

access their land — hold the dominant estate.

¶ 81 However, as to the rest of the PAE — specifically the portions

depicted as running across Lots 7, 8, and 9 — the underlying lot

owners own the land, not GLP. Figure 3, below, contains

highlighting that shows the portion of the PAE that runs exclusively

over Sandri’s Lot 9.

39 Figure 3 ¶ 82 The court’s trial order does not make a distinction between

these separate property interests within the PAE.

Where, as here, an easement is not exclusive, both the owner of the dominant estate and the owner of the servient estate have a right to use the property. Therefore, the parties’ interests must be balanced. The owner of the servient estate has a “qualified right to put his or her property to any lawful use for which it may be adapted” but “cannot unreasonably interfere with the superior right of the person possessing the easement.” By contrast, the owner of the dominant estate may use the easement in any manner “reasonably necessary to permit [its] full use,” but cannot unreasonably interfere with the enjoyment of the servient estate.

Amada Fam. Ltd. P’ship v. Pomeroy, 2021 COA 73, ¶ 67 (quoting

Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d 313, 317 (Colo.

App. 1996)).

40 ¶ 83 As the trial court’s Rule 60 order correctly states, the PAE —

as depicted in Figure 3 — runs across Sandri’s Lot 9. But as to this

lot, no portion of the PAE is on land owned by GLP. Thus, contrary

to the trial order, Sandri’s land is burdened by the PAE, rendering

Lot 9 the servient estate. See Salazar v. Terry, 911 P.2d 1086,

1090-91 (Colo. 1996) (“The burdened estate is servient to the

dominant estate which benefits from the easement.”).

¶ 84 Therefore, the trial court’s conclusion that GLP holds title to

the land underlying the PAE and is the servient estate — beyond

the portion that runs across GLP’s Tract C — is not supported by

the record or the court’s conclusion in its Rule 60 order. Thus, that

conclusion also cannot support its judgment in favor of GLP. There

is an obvious conflict between the trial court’s Rule 60 order, which

reiterates where the PAE lies, and the underlying trial order’s

delineation of property rights. And when a trial court’s orders

conflict, we may remand for the court to resolve the issue. See

Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916,

926 (Colo. 1993) (determining that two trial court orders conflicted

and remanding for further proceeding necessary to resolve the

conflict).

41 ¶ 85 We therefore reverse and remand this claim to the trial court

for further findings of fact and conclusions of law as to the portion

of Sandri’s quiet title claim under C.R.C.P. 105 against GLP alleging

that GLP inappropriately expanded the PAE access on Lot 9.

D. The Orders Regarding Attorney Withdrawal and Pretrial Motions

¶ 86 Sandri next contends that the trial court erred when it issued

several orders in April 2021 that (1) allowed Sandri’s counsel to

withdraw early and (2) addressed various pretrial motions. The first

issue is unpreserved, and we disagree with the second.

1. Preservation

¶ 87 GLP and GHOA argue that Sandri failed to preserve his

argument that the trial court erred by allowing his counsel to

withdraw because Sandri didn’t object to the withdrawal before the

fact. In response, Sandri contends that he preserved this issue in

his motion for a continuance, filed after the withdrawal. In it,

Sandri argued that the trial court abused its discretion by

shortening the fourteen-day timeframe provided in C.R.C.P. 121,

section 1-1(2)(c). We are not persuaded and conclude that Sandri

failed to timely preserve this issue.

42 2. Additional Facts and Analysis

¶ 88 On March 23, 2021, Sandri’s prior counsel moved to

withdraw, citing irreconcilable differences. That same day, Sandri

filed a pro se request for a continuance to obtain new counsel, in

which he lambasted his counsel’s decision-making and handling of

the case.11 The trial court shortened the deadlines to respond to

both the withdrawal and continuance until March 30. The trial

court conducted a hearing on March 31 and granted the motion to

withdraw on April 3, three days earlier than the fourteen-day-

objection deadline under Rule 121, section 1-1(2)(c). The trial court

also denied Sandri’s pro se continuance motion, saying that it “d[id]

not find good cause to continue trial” because Sandri “made the

decision to fire [his] attorneys primarily due to this potential

conflict, despite the fact trial [was] a mere three weeks away.”

However, roughly two weeks later, the court relented and granted

Sandri’s new counsel a two-month continuance.

11 Sandri’s motion also contained his email communications with

counsel demonstrating extensive disagreements regarding damages and highlighting his counsel’s belief that his damages request lacked the documentation to support his claims. The refusal or inability to provide documentary support for his damages appears to be a key reason for Sandri’s split with his former counsel.

43 ¶ 89 It’s undisputed that Sandri didn’t object to his counsel’s

withdrawal by the deadline set by the court (or even by the

fourteen-day deadline under the rules). To the contrary, in this

timeframe he expressed his deep dissatisfaction with his prior

counsel and referred to them as “my former attorneys.” On this

point, after the March 31 hearing, the trial court found that Sandri

had “fired” his attorneys.12

¶ 90 It’s true that Sandri objected after-the-fact in his second

continuance motion, arguing that the court erred by reducing the

rule’s fourteen-day timeframe to eleven days. But by the time he

objected, the court had already permitted the withdrawal, and he

was represented by new counsel.

12 This situation is similar to the facts that a division of this court

encountered in Federal Land Bank of Wichita v. B.A.V., Inc., 809 P.2d 1110, 1111 (Colo. App. 1991), where the “defendants invited the court’s actions in permitting their attorney to withdraw.” The B.A.V. defendants did not object to their attorney’s withdrawal and claimed that they were dissatisfied with their attorney’s services. Id. at 1112. Because of this, the division concluded that the “defendants [could ]not, on appeal, successfully assert that the trial court abused its discretion in permitting the attorney to withdraw.” Id.

44 ¶ 91 By failing to timely object to the motion to withdraw, Sandri

failed to preserve this issue.13 See Ortiz v. Progressive Direct Ins.

Co., 2024 COA 54, ¶ 39 (determining an issue unpreserved when a

party failed to timely raise the issue to the trial court). And though

he was pro se, he was still obligated to adhere to the rules of

procedure applicable to attorneys, see Yadon v. Southward, 64 P.3d

909, 912 (Colo. App. 2002), and the court could not act as an

advocate on his behalf, see Johnson v. McGrath, 2024 COA 5, ¶ 10.

¶ 92 In civil cases, we generally do not review issues that are

insufficiently preserved. Ortiz, ¶ 40. Thus, we decline to address

this issue further.

¶ 93 However, Sandri’s contention that the trial court erred in its

disposition of other pretrial motions is preserved for review, and we

address it below.

13 Even if Sandri had preserved this issue, there is no indication

that he was prejudiced or that his former counsel abandoned his case prior to the court’s discovery deadline. The record demonstrates that, despite irreconcilable differences, former counsel was engaged in motions practice until March 30, 2021, the day before the trial court’s deadline.

45 3. The April 2021 Orders Were Not an Abuse of Discretion

¶ 94 Sandri contends that the trial court abused its discretion

through the combined effect of its April 2021 orders. He argues

that he faced “extreme prejudice” from “the sum of the [Trial]

Court’s Orders in April 2021” and that these orders prevented him

from receiving a fair trial. We review a trial court’s rulings on

discovery issues for an abuse of discretion. Gateway Logistics, Inc.

v. Smay, 2013 CO 25, ¶ 13.

¶ 95 It appears from the record that the trial court issued at least

fifteen orders in April 2021, ranging from granting telephonic

testimony to denying a C.R.C.P. 41 motion to dismiss Sandri’s

claims.14 Of these fifteen orders, Sandri presents an argument on

two, the aforementioned withdrawal order and the court’s “Order

14 Though Sandri generically challenges the April 2021 orders, we

presume he does not intend to challenge the trial court’s order refusing to dismiss his claims.

46 Granting Plaintiffs’ Emergency Motion to Continue with

[C]onditions.”15

¶ 96 The order granting the emergency motion to continue noted

that “all pre-trial deadlines and orders remain in effect.” In

addition, the trial court ordered that, “discovery is closed, no new

experts may be disclosed, and no new damages or claims may be

asserted.”

¶ 97 The background to the discovery cutoff dispute is that Sandri

had added $6.3 million in claimed damages through a C.R.C.P.

26(a)(1)(C) disclosure on January 28, 2021. However, he lacked

supporting documentation for these damages, and the trial court

ordered him to disclose and meet his discovery obligations by

March 15, 2021. When he failed to do so, the trial court struck the

$6.3 million subset of his claimed damages.

¶ 98 Sandri seems to argue that he lost out on the ability to present

evidence of these damages. But the record doesn’t support this

15 We only consider these two orders because although Sandri

refers generally to “the April 2021 orders,” he presents no argument as to how any other orders caused or contributed to his asserted prejudice. And “[w]e don’t consider undeveloped and unsupported arguments.” Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12, aff’d, 2021 CO 56.

47 argument. It’s true that the trial court originally struck eight of

Sandri’s nine damages categories.16 But then Sandri filed a motion

to reconsider in which he disclaimed $3,945,350.30 of the

previously requested damages. The trial court granted his motion

and found that Sandri disclosed sufficient documents to support a

claim on four of the eight previously stricken damages categories.

¶ 99 Regardless, “[a] court has discretion to impose a reasonable

discovery deadline in managing its docket.” Leaf v. Beihoffer, 2014

COA 117, ¶ 47. We see no abuse of discretion in these rulings.

¶ 100 Additionally, even if we did see any abuse of discretion in the

rulings, any resulting error is harmless as a matter of law. The trial

court ultimately found after trial that Sandri failed to prove any of

the essential elements of the claim underlying his damages. See id.

at ¶ 12 (“If a plaintiff fails to establish any one of [a tort’s] elements,

any errors related to other elements are necessarily harmless

because the plaintiff cannot prevail in any event.”); Schlesselman v.

Gouge, 431 P.2d 35, 37 (Colo. 1967) (refusing to consider

16 At that point, the case was over two years old, and Sandri had

already waited eighteen months before disclosing over $6.3 million in new, unsupported damages.

48 contentions of error related to damages where the jury returned a

verdict in favor of the defendant on “the basic issue of liability”).

Because Sandri didn’t prevail on his underlying claim — and fails to

challenge that loss on appeal — his professed inability to seek any

portions of his damages is necessarily harmless.

¶ 101 The remainder of Sandri’s contentions consists of complaints

over the way his former counsel handled the case. For example, he

argues that his former counsel should have added different claims.

But as the trial court noted, at that point it was too late for Sandri

to “reimagine his case after two years of pre-trial litigation,” and he

had already amended his complaint twice. Regardless, none of

Sandri’s complaints about his former counsel demonstrate an

abuse of discretion by the trial court. Sandri and his former

counsel shaped the litigation. We see no indication that the trial

court did anything other than appropriately manage an unwieldy

case.

¶ 102 Thus, we discern no error in the trial court’s grant of the

continuance with conditions.

49 E. The Conservation Easement Amendment

¶ 103 We now turn to GLP’s contention that the trial court erred in

its interpretation of the conservation easement.17 We disagree.

1. Additional Background and Procedural History

¶ 104 In mid-2018, GLP amended the conservation easement,

changing the provisions governing the rights conveyed and

reserved. Sandri and Ferrari objected, claiming that the change —

in violation of the conservation easement’s amendment provision —

reduced their access to the private recreation area from a right to a

mere privilege, revocable at GLP’s discretion.

¶ 105 The trial court initially analyzed this issue during the

summary judgment proceedings and, applying trust law, found that

the amendment was improper. Soon after, COOL joined the

ongoing litigation and filed a motion to reconsider, arguing that

property law controls this issue. After reviewing the matter, the

trial court issued its reconsideration order, applied both trust and

17 From its briefing, it is unclear if GLP also intended to separately

argue that the trial court reversibly erred in ruling that Ferrari has a right to use a trail within the conservation easement. To the extent that this is a separate issue, GLP develops no argument on this point, so we decline to consider it separately further. See Woodbridge, ¶ 41 n.12.

50 property law to the conservation easement, and came to the same

conclusion as it had in its summary judgment order.

¶ 106 On appeal, GLP challenges the trial court’s conclusions and,

alongside COOL, argues that property law, not trust law, applies to

this issue.

2. Standard of Review and Applicable Law

¶ 107 We review the court’s judgment after a bench trial as a mixed

question of law and fact. State Farm Mut. Auto. Ins., ¶ 12. We

review the trial court’s legal conclusions de novo and its factual

findings for clear error. See Jehly, ¶ 8. The interpretation of a

written document also presents a question of law that we review de

novo. GMAC Mortg., 155 P.3d at 557.

¶ 108 A conservation easement in gross shall not be deemed

personal in nature and shall constitute an interest in real property

notwithstanding that it may be negative in character.

§ 38-30.5-103(2), C.R.S. 2024. The extent of an expressly created

easement, including the limits of its authorized use, is determined

by interpreting the conveyance instrument. Lazy Dog, 965 P.2d at

1235; see also Restatement (Third) of Prop.: Servitudes § 4.1(1)(a).

“Where the instrument is a deed, we construe the instrument as we

51 would any deed. Our paramount concern in construing a deed is to

ascertain the intentions of the parties.” Lazy Dog, 965 P.2d at

1235.18

3. The Conservation Easement Amendment Was Improper

¶ 109 GLP argues that the court erred by concluding that the “Deed

of Conservation Easement” was “intended to benefit the ‘Members of

[Giberson]’s family and those who live in the thirteen (13) platted

lots.” Further, it contends that the conservation easement does not

grant rights to the lot owners, but only reserves rights for Giberson

and, in turn, itself. Therefore, it argues that the trial court

incorrectly concluded that the amended conservation easement

couldn’t modify Sandri’s and Ferrari’s rights to use the conservation

18 GLP, COOL, and the amicus curiae urge us to declare that all

amendments to conservation easements are governed by property law. But we need not reach that sweeping question. The parties variously agree or don’t contest that property law should apply to our review of the conservation easement amendment at issue here, and we agree. “Courts exist for the purpose of deciding live disputes involving ‘“flesh-and-blood” legal problems with data “relevant and adequate to an informed judgment.”’” People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985) (quoting New York v. Ferber, 458 U.S. 747, 767-68 (1982)). “A court, therefore, should avoid an advisory opinion on an abstract proposition of law.” City & Cnty. of Denver v. Consol. Ditches Co. of Dist. No. 2, 807 P.2d 23, 38 (Colo. 1991).

52 property. Instead, GLP says, they have just a mere license or

privilege to use the land. We disagree.

¶ 110 We first turn to the plain language of the conservation

easement and section 17.D, its amendment provision.

If the circumstances arise under which an amendment to or modification of this Deed of Conservation Easement would be appropriate, [Giberson] and [COOL] are free to jointly amend this Deed of Conservation Easement; provided that no amendment shall be allowed that will affect the qualifications of this Deed of Conservation Easement under any applicable laws. Any amendment must be consistent with the conservation purposes of this Deed of Conservation Easement and may not affect its perpetual duration.

(Emphasis added.)

¶ 111 The trial court rightly determined that, by its plain language,

the conservation easement prevents any amendment that would be

inconsistent with its purposes. The statement of purpose provides

the following:

The purpose of this Deed of Conservation Easement is to preserve and protect in perpetuity the agricultural character, wildlife habitat, private open space and scenic qualities of the Conservation Property and to prevent uses of the Conservation Property that will significantly impair or interfere with the Conservation Values of the Conservation

53 Property. It is also the purpose of this Deed of Conservation Easement to allow the agricultural and private recreational uses of the Conservation Property, which are consistent with the foregoing goals, to continue in perpetuity, and as is set forth herein.

¶ 112 Additionally, the conservation easement expressly reserves the

following rights in perpetuity:

Passive Recreational Uses. Members of [Giberson]’s family and those who live in the thirteen (13) platted lots shown on the Giberson Preserve Plat recorded at Reception No. 375700 on September 1, 1989 in the Records of the Summit County, Colorado Clerk and Recorder and their guests, permit[t]ees (those given permission) and invitees may use the Conservation Property for non-commercial recreational usage deemed appropriate by [Giberson] including but not limited to walking, hiking, non-motorized mountain biking, skiing, snowshoeing, hunting, fishing, horseback riding, snowmobiling, camping, nature studies and picnicking.

(Second emphasis added.)

¶ 113 “Our goal in interpreting a recorded instrument is to ascertain

and give effect to the intentions of the party or parties who created

the instrument.” 802 E. Cooper, LLC v. Z-GKids, LLC, 2023 COA 48,

54 ¶ 21 (citing Lazy Dog, 965 P.2d at 1235). “We ascertain the parties’

intent primarily from the language of the instrument itself.” Id.

¶ 114 A plain reading of the conservation easement demonstrates

that it reserves, in perpetuity, the right of those who live on the

thirteen lots — such as Sandri and Ferrari — to use the

conservation easement area for passive recreation. The purpose of

the conservation easement is, in part, to provide for this private

recreational use. See Pulte Home Corp. v. Countryside Cmty. Ass’n,

2016 CO 64, ¶ 23 (In interpreting a recorded instrument, “we give

words and phrases their common meanings and will enforce such

documents as written if their meaning is clear.” And “[l]ike

contracts, we construe them as a whole, seeking to harmonize and

to give effect to all provisions so that none will be rendered

meaningless.”).

¶ 115 The amendment to the conservation easement violated this

plain purpose. It provided the following:

Passive Recreational Uses. Members of [GLP] and their families and guests are permitted to use the Conservation Property as determined by [GLP] in accordance with this Deed of Conservation Easement. Those who live in the thirteen (13) platted lots shown on the Giberson Preserve Plat . . . and their

55 accompanied family members, guests and tenants are permitted, at the discretion of [GLP], to use the Conservation Property for non-commercial recreational usage which may include walking, hiking, non-motorized biking, cross country skiing, snowshoeing, sledding, nature studies, and picnics. Allowed activities are restricted to designated areas.

¶ 116 The trial court succinctly summarized the differences between

the original conservation easement and the amended version.

[T]he Amended Conservation Easement attempts to limit not just uses but users. It only allows the family, guests, and tenants of lot owners to use the Conservation Property “at the discretion of [GLP].” . . . Under the Amended Conservation Easement, [GLP] now has “the right to honor existing access or other easements across the Conservation Property.”

¶ 117 Under the amended conservation easement, GLP, at its

pleasure, could prohibit Sandri or Ferrari from accessing the

conservation easement property, despite the fact that the easement

prohibited changing this aspect of their right to use the property.

This amendment conflicted with the conservation purposes of the

56 conservation easement and, as to Sandri and Ferrari, affected its

perpetual duration.19

¶ 118 Thus, the amended conservation easement was improper, and

the lot owners retain the rights “that the Grantor ‘expressly

reserved in perpetuity’ in the original Conservation Easement.” We

discern no error in the trial court’s conclusion to that effect.

IV. Attorney Fees

¶ 119 The parties each make a request for attorney fees, which we

address in turn.

¶ 120 Sandri requests fees under Rule 105; C.R.C.P. 57; section

38-33.3-123(1)(c), C.R.S. 2024; section 38-35-109(3), C.R.S. 2024;

and the 2017 covenants. We deny his requests under Rule 105,

Rule 57, and section 38-35-109(3) as meritless. As for his request

under section 38-33.3-123(1)(c), CCIOA’s fee-shifting provision

applies retroactively to “all common interest communities created

within this state before July 1, 1992, with respect to events and

19 For example, after GLP and COOL executed the amended

conservation easement, GLP closed a trail near Ferrari’s property. The trial court found that GLP impermissibly “closed this particular trail in an effort to specifically prevent Ferrari from accessing the Open Space.” To the extent that GLP challenges this finding, we discern no error.

57 circumstances occurring on or after July 1, 1992.”

§ 38-33.3-117(1). As determined above, no common-interest

community was created, and no party brought a claim to enforce

CCIOA’s provisions. Thus, CCIOA’s fee-shifting provision does not

apply here.

¶ 121 However, the 2017 covenants contain a fee shifting provision,

section 17.4, which specifies that in any dispute between GHOA

and a lot owner, the prevailing party “shall be awarded all fees,

costs and expenses incurred by it in such proceeding, including

reasonable attorneys’ fees.” GHOA sued Sandri under these

covenants in a clear dispute over their applicability. GHOA

appealed its trial court loss, and Sandri and Ferrari have

successfully defended on appeal their win that the 2017 covenants

are not binding on them.

¶ 122 Likewise, the conservation easement, section 7.b, specifies

that if a party commences legal action to enforce the easement, “any

reasonable costs incurred by the prevailing party in such action in

connection with enforcing the terms of this Deed of Conservation

Easement, including, without limitation, any reasonable costs of

suit and reasonable attorneys’ fees, shall be borne by the

58 non-prevailing party.” Ferrari has successfully defended his win

against GLP on the conservation easement claim.

¶ 123 We note that both fee-shifting provisions apply only to a

prevailing party in a proceeding. This matter features multiple

parties and a myriad of claims, some of which were not part of this

appeal. “[W]here either party could arguably be considered the

‘prevailing party,’ the trial court is in the best position to evaluate

the relative strengths and weaknesses of each party’s claims, the

significance of each party’s successes in the context of the overall

litigation, and the time devoted to each claim.” Archer v. Farmer

Bros. Co., 90 P.3d 228, 231 (Colo. 2004); see also Wheeler v. T.L.

Roofing, Inc., 74 P.3d 499, 504 (Colo. App. 2003) (holding that trial

court is the in best position to determine which party ultimately

prevailed for purposes of awarding attorney’s fees). At the time of

appeal, the trial court had not determined the prevailing parties.

The trial court is authorized to award Sandri and Ferrari their

reasonable attorney fees incurred on appeal from GLP and GHOA if

it determines that they are prevailing parties in the litigation.

59 V. Disposition

¶ 124 The trial court’s Rule 60 order is affirmed. That portion of the

trial order concerning Sandri’s claim against GLP that the 2017

covenants impermissibly expanded the scope of the private access

easement to provide access not only to Lots 7 through 10 but also

to the open space is reversed. The remainder of the judgment is

affirmed.

¶ 125 The matter is remanded to the trial court (1) for further

findings of fact and conclusions of law on Sandri’s claim that GLP

improperly expanded access to the PAE; (2) to award appellate fees

due to Sandri and Ferrari, if it determines they are prevailing

parties, from GHOA and GLP; and (3) for any further proceedings

consistent with this opinion that the trial court determines are

necessary.

JUDGE GOMEZ and JUDGE RICHMAN concur.