24CA0374 GaNun v Epic 01-02-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0374 City and County of Denver District Court No. 22CV31893 Honorable Mark T. Bailey, Judge
Jennifer GaNun and Andrew Thomas,
Plaintiffs-Appellants,
v.
Epic on the Park Homeowners Association, Inc., a Colorado non-profit corporation,
Defendant-Appellee.
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE J. JONES Lipinsky and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 2, 2025
Pat Mellen Law, LLC, Patricia Ann Mellen, Denver, Colorado, for Plaintiffs- Appellants
Orten Cavanagh Holmes & Hunt, LLC, Marcus T. Wile, Jonah G. Hunt, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiffs, Jennifer GaNun and Andrew Thomas, appeal the
district court’s order granting defendant Epic on the Park
Homeowners Association, Inc.’s (Epic) motion for attorney fees. We
affirm and remand the case to the district court for a determination
of Epic’s reasonable attorney fees incurred in this appeal.
I. Background
¶2 Plaintiffs own a condominium unit in a planned unit
development for which Epic is the homeowner’s association. They
filed a complaint against Epic asserting claims for breach of
contract, breach of the covenant of good faith and fair dealing, and
negligence. The gist of their claims was that Epic failed to
adequately fix problems with their unit’s roof, in violation of duties
imposed by the development’s declaration and bylaws.
¶3 A jury found in Epic’s favor on all three claims.1
¶4 Epic filed a motion for an award of its attorney fees under
sections 38-33.3-123(1)(c) and -302(1)(k), C.R.S. 2024, of the
1 Plaintiffs appealed the district court’s judgment entered on the
jury’s verdicts. A division of this court affirmed the judgment. GaNun v. Epic on the Park Homeowners Ass’n, (Colo. App. No. 23CA1667, Aug. 15, 2024) (not published pursuant to C.A.R. 35(e)) (GaNun I).
1 Colorado Common Interest Ownership Act (CCIOA) and Article V,
Section 5.7.3 of the declaration.2 The district court concluded that
Epic was entitled to such an award under both CCIOA and the
declaration, and it entered an order awarding Epic $93,081.91.
II. Discussion
¶5 Plaintiffs’ challenge to the district court’s order is limited to a
single contention — that the court erred by awarding fees to Epic
under CCIOA on the negligence claim because Epic “relied on a
disputed separate concept, the Business Judgment Rule, as an
affirmative defense excusing performance of its duty, rather than
relying on the governing documents, and CCIOA was never
mentioned as even a concept in this litigation[.]”3 For two reasons,
we don’t see any basis to reverse the order.
2 Section 5.7.1 of the declaration provides that an owner has a right
of action against the association for any failure to comply with the “Association Documents,” which, per section 2.6, includes the bylaws. Section 5.7.3 provides that “[t]he prevailing party in any . . . civil action shall be entitled to reimbursement from the non- prevailing party for all collection costs and expenses, including attorney fees, in connection with such . . . judicial relief.” 3 Plaintiffs don’t challenge the amount of the fees the district court
awarded to Epic.
2 ¶6 First, contrary to plaintiffs’ assertion, the district court plainly
awarded Epic its attorney fees incurred in defending against all of
plaintiffs’ claims — including the negligence claim — under both
CCIOA and the declaration. Because plaintiffs don’t challenge the
award under the declaration, we must affirm. See IBC Denver II,
LLC v. City of Wheat Ridge, 183 P.3d 714, 717-18 (Colo. App. 2008)
(when a district court gives more than one reason for a decision, an
appellant must challenge all those reasons; failure to do so requires
affirmance).
¶7 Second, again contrary to plaintiffs’ assertion, their negligence
claim was expressly based on a duty allegedly created by the
bylaws. In paragraph 82 of their complaint (within the allegations
of the negligence claim), plaintiffs alleged that “[t]he HOA’s bylaws
expressly state that the Board has a ‘duty’ to make prompt and
complete repairs to the Common Elements,” and in paragraph 85
(also within the allegations of the negligence claim), they alleged
that Epic breached this “express duty.” (In paragraph 26 of the
3 complaint (within the general allegations), plaintiffs also alleged the
existence of this duty arising from the bylaws.)4
¶8 Nonetheless, plaintiffs argue that the district court “indicated
that it disagreed with [Epic’s] analysis” as to fees for defending
against the negligence claim. It didn’t. When Epic’s counsel
asserted that “[t]he entire duty . . . that the claim of negligence is
premised on is a duty that stems from the contractual relationship
between the parties,” the court asked Epic’s counsel a hypothetical
question: “If I disagree with you [that the negligence claim arises
from the contract], what effect should that have on the analysis?”
4 Indeed, in opposing Epic’s motion, plaintiffs’ counsel didn’t argue
that the court shouldn’t award fees for defending against the negligence claim because that claim wasn’t based on the association’s governing documents. She only argued that the court shouldn’t award fees on any claim because plaintiffs didn’t base their claims, and Epic didn’t base its defense, on CCIOA. Plaintiffs’ counsel’s failure to raise this argument below also means that we don’t need to consider it. Est. of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992). Even so, the argument fails on the merits.
4 The court didn’t say that it disagreed with Epic’s counsel on that
point, and its written order belies any such contention.5
¶9 Section 38-33.3-123(1)(c)(I) of CCIOA requires an award of
attorney fees to “the prevailing party” in “any civil action to enforce
. . . bylaws.” As noted above, plaintiffs’ negligence claim was
expressly based on a duty allegedly arising under the bylaws, and,
therefore, was one to enforce those bylaws and subject to section
38-33.3-123(1)(c). Plaintiffs’ position that section
38-33.3-123(1)(c)(I) doesn’t apply if either the claim or defense fails
to expressly invoke some provision of CCIOA itself is contrary to the
statute’s plain language.
5 We also observe that the division that affirmed the judgment in
this case concluded, in holding that Epic was entitled to an award of attorney fees incurred in that appeal, that “[p]laintiffs’ claims were expressly premised on the development’s declaration and bylaws.” GaNun I, slip op. at 7. That holding is the law of the case. And though we have discretion to reconsider the division’s prior ruling, Core-Mark Midcontinent, Inc. v. Sonitrol Corp., 2012 COA 120, ¶ 10, plaintiffs haven’t given us any good reason to do so.
5 ¶ 10 In sum, the district court didn’t abuse its discretion by
awarding Epic its attorney fees incurred in defending against
plaintiffs’ negligence claim.6
III. Epic’s Attorney Fees on Appeal
¶ 11 Because Epic has successfully defended the district court’s
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24CA0374 GaNun v Epic 01-02-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0374 City and County of Denver District Court No. 22CV31893 Honorable Mark T. Bailey, Judge
Jennifer GaNun and Andrew Thomas,
Plaintiffs-Appellants,
v.
Epic on the Park Homeowners Association, Inc., a Colorado non-profit corporation,
Defendant-Appellee.
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE J. JONES Lipinsky and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 2, 2025
Pat Mellen Law, LLC, Patricia Ann Mellen, Denver, Colorado, for Plaintiffs- Appellants
Orten Cavanagh Holmes & Hunt, LLC, Marcus T. Wile, Jonah G. Hunt, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiffs, Jennifer GaNun and Andrew Thomas, appeal the
district court’s order granting defendant Epic on the Park
Homeowners Association, Inc.’s (Epic) motion for attorney fees. We
affirm and remand the case to the district court for a determination
of Epic’s reasonable attorney fees incurred in this appeal.
I. Background
¶2 Plaintiffs own a condominium unit in a planned unit
development for which Epic is the homeowner’s association. They
filed a complaint against Epic asserting claims for breach of
contract, breach of the covenant of good faith and fair dealing, and
negligence. The gist of their claims was that Epic failed to
adequately fix problems with their unit’s roof, in violation of duties
imposed by the development’s declaration and bylaws.
¶3 A jury found in Epic’s favor on all three claims.1
¶4 Epic filed a motion for an award of its attorney fees under
sections 38-33.3-123(1)(c) and -302(1)(k), C.R.S. 2024, of the
1 Plaintiffs appealed the district court’s judgment entered on the
jury’s verdicts. A division of this court affirmed the judgment. GaNun v. Epic on the Park Homeowners Ass’n, (Colo. App. No. 23CA1667, Aug. 15, 2024) (not published pursuant to C.A.R. 35(e)) (GaNun I).
1 Colorado Common Interest Ownership Act (CCIOA) and Article V,
Section 5.7.3 of the declaration.2 The district court concluded that
Epic was entitled to such an award under both CCIOA and the
declaration, and it entered an order awarding Epic $93,081.91.
II. Discussion
¶5 Plaintiffs’ challenge to the district court’s order is limited to a
single contention — that the court erred by awarding fees to Epic
under CCIOA on the negligence claim because Epic “relied on a
disputed separate concept, the Business Judgment Rule, as an
affirmative defense excusing performance of its duty, rather than
relying on the governing documents, and CCIOA was never
mentioned as even a concept in this litigation[.]”3 For two reasons,
we don’t see any basis to reverse the order.
2 Section 5.7.1 of the declaration provides that an owner has a right
of action against the association for any failure to comply with the “Association Documents,” which, per section 2.6, includes the bylaws. Section 5.7.3 provides that “[t]he prevailing party in any . . . civil action shall be entitled to reimbursement from the non- prevailing party for all collection costs and expenses, including attorney fees, in connection with such . . . judicial relief.” 3 Plaintiffs don’t challenge the amount of the fees the district court
awarded to Epic.
2 ¶6 First, contrary to plaintiffs’ assertion, the district court plainly
awarded Epic its attorney fees incurred in defending against all of
plaintiffs’ claims — including the negligence claim — under both
CCIOA and the declaration. Because plaintiffs don’t challenge the
award under the declaration, we must affirm. See IBC Denver II,
LLC v. City of Wheat Ridge, 183 P.3d 714, 717-18 (Colo. App. 2008)
(when a district court gives more than one reason for a decision, an
appellant must challenge all those reasons; failure to do so requires
affirmance).
¶7 Second, again contrary to plaintiffs’ assertion, their negligence
claim was expressly based on a duty allegedly created by the
bylaws. In paragraph 82 of their complaint (within the allegations
of the negligence claim), plaintiffs alleged that “[t]he HOA’s bylaws
expressly state that the Board has a ‘duty’ to make prompt and
complete repairs to the Common Elements,” and in paragraph 85
(also within the allegations of the negligence claim), they alleged
that Epic breached this “express duty.” (In paragraph 26 of the
3 complaint (within the general allegations), plaintiffs also alleged the
existence of this duty arising from the bylaws.)4
¶8 Nonetheless, plaintiffs argue that the district court “indicated
that it disagreed with [Epic’s] analysis” as to fees for defending
against the negligence claim. It didn’t. When Epic’s counsel
asserted that “[t]he entire duty . . . that the claim of negligence is
premised on is a duty that stems from the contractual relationship
between the parties,” the court asked Epic’s counsel a hypothetical
question: “If I disagree with you [that the negligence claim arises
from the contract], what effect should that have on the analysis?”
4 Indeed, in opposing Epic’s motion, plaintiffs’ counsel didn’t argue
that the court shouldn’t award fees for defending against the negligence claim because that claim wasn’t based on the association’s governing documents. She only argued that the court shouldn’t award fees on any claim because plaintiffs didn’t base their claims, and Epic didn’t base its defense, on CCIOA. Plaintiffs’ counsel’s failure to raise this argument below also means that we don’t need to consider it. Est. of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992). Even so, the argument fails on the merits.
4 The court didn’t say that it disagreed with Epic’s counsel on that
point, and its written order belies any such contention.5
¶9 Section 38-33.3-123(1)(c)(I) of CCIOA requires an award of
attorney fees to “the prevailing party” in “any civil action to enforce
. . . bylaws.” As noted above, plaintiffs’ negligence claim was
expressly based on a duty allegedly arising under the bylaws, and,
therefore, was one to enforce those bylaws and subject to section
38-33.3-123(1)(c). Plaintiffs’ position that section
38-33.3-123(1)(c)(I) doesn’t apply if either the claim or defense fails
to expressly invoke some provision of CCIOA itself is contrary to the
statute’s plain language.
5 We also observe that the division that affirmed the judgment in
this case concluded, in holding that Epic was entitled to an award of attorney fees incurred in that appeal, that “[p]laintiffs’ claims were expressly premised on the development’s declaration and bylaws.” GaNun I, slip op. at 7. That holding is the law of the case. And though we have discretion to reconsider the division’s prior ruling, Core-Mark Midcontinent, Inc. v. Sonitrol Corp., 2012 COA 120, ¶ 10, plaintiffs haven’t given us any good reason to do so.
5 ¶ 10 In sum, the district court didn’t abuse its discretion by
awarding Epic its attorney fees incurred in defending against
plaintiffs’ negligence claim.6
III. Epic’s Attorney Fees on Appeal
¶ 11 Because Epic has successfully defended the district court’s
attorney fees order, we grant its request for an award of its
reasonable attorney fees incurred on appeal under both CCIOA and
the declaration. See Accetta v. Brooks Towers Residences Condo.
Ass’n, 2021 COA 147M2, ¶¶ 50-51. Pursuant to C.A.R. 39.1, we
exercise our discretion to remand the case to the district court for a
determination of the amount of those fees.
IV. Disposition
¶ 12 The order is affirmed. The case is remanded to the district
court for a determination of Epic’s reasonable attorney fees incurred
in this appeal.
JUDGE LIPINSKY and JUDGE SULLIVAN concur.
6 Plaintiffs disavow any challenge to the fees awarded on the two
breach of contract claims. Yet they don’t attempt to explain how the fees incurred in defending against those claims could be separated from the fees incurred to defend against the negligence claim.