23CA1815 Lichina Trust v Gjovig Trust 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1815 El Paso County District Court No. 21CV31417 Honorable Thomas K. Kane, Judge
Lichina Revocable Living Trust,
Plaintiff-Appellant and Cross-Appellee,
v.
Elinore H. Gjovig Revocable Trust,
Defendant-Appellee and Cross-Appellant.
JUDGMENT REVERSED, ORDER AFFIRMED, AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE KUHN Harris and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Messner Reeves LLP, Brenda L. Bartels, Colorado Springs, Colorado, for Plaintiff-Appellant and Cross-Appellee
Sparks Willson, P.C., Scott W. Johnson, Julie B. Petersen, Colorado Springs, Colorado, for Defendant-Appellee and Cross-Appellant ¶1 In this action to determine the existence of an implied
easement of necessity, plaintiff, the Lichina Revocable Living Trust
(the Lichina Trust), appeals the trial court’s judgment entered
following a bench trial in favor of defendant, the Elinore H. Gjovig
Revocable Trust (the Gjovig Trust). On cross-appeal, the Gjovig
Trust challenges the court’s order denying its request for an award
of attorney fees. We affirm the attorney fee order but reverse the
judgment and remand the case to the trial court for further
proceedings consistent with this opinion.
I. Background
¶2 We draw the following factual background from the record and
the trial court’s “Findings of Fact, Conclusions of Law, and
Judgment,” entered after the bench trial.
¶3 The dispute between the parties concerns neighboring parcels
of land in Cascade, located in El Paso County. In 1948, the
Cascade Town Company was the common owner of the land
depicted on the map below, labeled as Figure 1.
1 Figure 1
In November of that year, one of the company’s owners, Frank
Cusack, signed a deed conveying Parcel 2 to himself. Parcels 1 and
3 remained with the Cascade Town Company. A few weeks later,
the Cascade Town Company transferred Parcel 1 to Leonard and
Carrie Dittemore. The Cascade Town Company retained Parcel 3
until 1966, when the company’s other owner, Charles Cusack,
deeded that property to himself.1 Parcel 3 was later acquired by
John Barnes.
¶4 In 1969, Elinore H. Gjovig and her husband Gordon (who is
now deceased) acquired Parcel 1 from the Dittemores’ successor in
interest. Nine years later, the Gjovigs also acquired a portion of
Parcel 2, which at the time was owned by Frank Cusack’s wife,
1 Charles Cusack was the brother of Frank Cusack.
2 Helen. And in late 2003, Thomas (Tom) Lichina and his wife, Mary,
acquired the remainder of Parcel 2 from the estate of the Cusacks’
daughter to whom Helen Cusack had conveyed the property in
1985. Gjovig and the Lichinas eventually transferred the title to
their respective parcels to the trusts they each had formed.
¶5 As a result of these conveyances, the Gjovig Trust and the
Lichina Trust own parcels of land marked as the “Gjovig Home” and
the “Lichina Lot,” respectively, on the map below that is labeled as
Figure 2.
Figure 2
3 ¶6 As shown in Figure 2, the Lichina Trust’s lot lacks access to a
public road, including U.S. Highway 24, which runs to the west of
it. The parcel is landlocked and is bordered by the Lichinas’ other
property (which contains a residence and rental property) to the
east, property owned by third parties to the northeast and south,
and the Gjovig Trust’s property to the west and northwest. Lichina
testified at trial that due to the parcel’s location and difficult
terrain, he and his wife could access it only by a road that runs
across the Gjovig Trust’s property. That access road — marked as a
dashed line in Figure 2 — enters the Gjovig Trust’s property at its
farthest northwestern boundary, traverses east almost to its
northeastern corner, turns south, and connects with the northern
portion of the Lichina Trust’s undeveloped lot.
¶7 The Lichinas had used the access road to get to the parcel
before and after purchasing it; however, Gjovig later blocked access
to the road with a gate and refused to grant them an easement
across her land. The Lichina Trust filed this lawsuit in September
2021, asserting a claim for an implied easement of necessity over
the access road. It amended its complaint roughly two months later
to assert a claim for a prescriptive easement, which it pleaded in the
4 alternative. The court later granted the Gjovig Trust’s motion for
partial summary judgment and dismissed the prescriptive easement
claim.
¶8 After a half-day trial to the bench, the trial court issued its
findings of fact and conclusions of law. The court determined that
the Lichina Trust failed to establish the existence of an implied
easement of necessity over the access road. The Gjovig Trust then
filed a timely motion seeking an award of $100,826.50 in attorney
fees and $4,213.48 in costs. The court awarded the requested costs
but denied the attorney fee request.
II. Analysis
¶9 On appeal, the Lichina Trust contends that the trial court
erred by concluding that it had no easement of necessity over the
road allowing access to its land. On cross-appeal, the Gjovig Trust
contends that the court erred by denying its motion for an award of
attorney fees incurred in defending against this suit. We agree with
the Lichina Trust in part and consequently reverse the trial court’s
judgment denying the trust’s easement of necessity claim. But
because we disagree with the Gjovig Trust’s challenge, we affirm the
court’s attorney fee order.
5 A. Implied Easement of Necessity
¶ 10 The Lichina Trust argues that the trial court erred by
determining that it wasn’t entitled to an implied easement of
necessity over the access road that runs across the Gjovig Trust’s
property. Specifically, the Lichina Trust argues that the trial court
erred by (1) finding that the Lichina Trust presented no evidence of
the purpose for which its parcel was originally conveyed; (2) finding
that the Cusacks thought that the parcel was unbuildable and any
access unnecessary; and (3) determining that there was no great
necessity for the easement given that the Lichina Trust established
that its lot was “landlocked and useless without the easement.” We
agree with the Lichina Trust that there is no record support for the
challenged findings of the trial court and that the court misapplied
one of the legal requirements for an easement of necessity.
1. Applicable Law and Standard of Review
¶ 11 “An easement by necessity arises when the owner of a parcel
of land grants part of the land to another party, leaving either the
part granted or the part retained without access except through the
other part.” Amada Fam. Ltd. P’ship v. Pomeroy, 2021 COA 73,
¶ 58. To establish an easement of necessity, a party claiming the
6 easement must show that (1) there was a unity of ownership of the
entire tract of land before the land was divided into separate lots;
(2) the necessity for the easement existed at the time of such
severance; and (3) the necessity for the particular easement is great.
Thompson v. Whinnery, 895 P.2d 537, 540 (Colo. 1995). The
burden of proving that an implied easement of necessity exists is on
the party claiming the easement. Id.
¶ 12 An implied easement of necessity “has its roots in
considerations of public policy that militate against rendering a
tract of land useless for lack of access.” Id. When a property is
landlocked and lacks access to a public road as a result of division
from its common owner, an easement is implied because “the law
assumes that no person intends to render property conveyed
inaccessible for the purpose for which it was [g]ranted.” Wagner v.
Fairlamb, 379 P.2d 165, 169 (Colo. 1963). Accordingly, whether
reasonable means of access existed at the time of severance
depends on whether the access route was adequate to effectuate the
purpose for which the property was originally granted. See
Thompson, 895 P.2d at 541. A property’s purposes include not only
the purposes the parties explicitly identified at the time of
7 conveyance, but also those uses the parties reasonably expected
based on normal development of the property. Id.; see also
Pomeroy, ¶ 59.
¶ 13 However, “[g]enerally implied easements have not been looked
upon with favor by the courts.” Wagner, 379 P.2d at 167. “The
requirement that the necessity for a particular easement must be
great reflects the application of that principle in the context of
easements of necessity.” Thompson, 895 P.2d at 540 n.7. To
satisfy that requirement, a party seeking an easement of necessity
must show that there is “a practical inability to have access any
other way than by a way of necessity.” Wagner, 379 P.2d at 168.
¶ 14 While “absolute physical impossibility of reaching the alleged
dominant estate is not a requisite, an easement by implication will
not be found if there are alternatives offering reasonable means of
ingress and egress.” Campbell v. Summit Plaza Assocs., 192 P.3d
465, 470 (Colo. App. 2008). In making that determination, courts
must consider whether the property is presently accessible any
other way. See LeSatz v. Deshotels, 757 P.2d 1090, 1092 (Colo.
App. 1988) (concluding that there was no great necessity for the
sought easement because the plaintiff, among other things, could
8 create access to his property by building a bridge); Bittle v.
CAM-Colo., LLC, 2012 COA 93, ¶¶ 35-37 (concluding that the
plaintiff failed to satisfy the “great necessity” element because the
property was presently accessible from another property).
¶ 15 When, as here, a district court enters judgment following a
bench trial, we review that judgment as a mixed question of fact
and law. See Fear v. GEICO Cas. Co., 2023 COA 31, ¶ 15, aff’d,
2024 CO 77. In doing so, we accept the court’s findings of fact
unless they are clearly erroneous and unsupported by the record,
but we review de novo its legal conclusions. Id.
¶ 16 Likewise, whether the trial court applied the correct legal
standard is a question of law that we review de novo. Wal-Mart
Stores, Inc. v. Crossgrove, 2012 CO 31, ¶ 7.
2. The Trial Court Erred by Concluding that the Lichina Trust Wasn’t Entitled to an Implied Easement of Necessity Over the Access Road
¶ 17 As an initial matter, the parties don’t dispute that the first
element of the easement of necessity claim is present here. Indeed,
the Gjovig Trust’s trial counsel conceded that element in his
opening statement and the record shows, as we note above, that
both parcels were under the common ownership of the Cascade
9 Town Company until late 1948. The parties’ dispute revolves
around the other two elements of the claim — the requirements that
the necessity must have existed at the time the unity of ownership
was severed and that the necessity for the particular easement
must be great. See Thompson, 895 P.2d at 540.
¶ 18 The trial court determined that the Lichina Trust failed to
establish those two elements. It noted that the Lichina Trust
presented no evidence that the necessity for the sought-after
easement existed when the Cascade Town Company divided the
land into the individual parcels that the parties eventually acquired.
The court observed that “[the Lichina Trust] did not address the
time of severance in its presentation. Instead, [the Lichina Trust]
focused its case entirely on its claim of present necessity for an
easement.” And the court found that, at the time of severance, an
easement over the access road across the Gjovig Trust’s property
wasn’t necessary because the Lichina Trust’s property was
accessible by a road that crossed the retained land of the Cascade
Town Company on the parcel that became the Barnes property.
The court reasoned that under these circumstances, “there was no
necessity, let alone great necessity,” to use the Gjovig Trust’s
10 property for access across land the company had already conveyed
to third parties.
¶ 19 We disagree with the trial court’s ruling because (1) the record
doesn’t support its determination that the requested easement
wasn’t necessary at the time of severance, and (2) the court failed to
apply the proper legal standard in evaluating the third element of
the Lichina Trust’s claim.
a. The Record Doesn’t Support the Trial Court’s Determination that There Was No Necessity at the Time of Severance
¶ 20 Initially, we clarify the layout of the access road at the time of
severance because the parties’ submissions regarding this issue —
both in the trial court and on appeal — are confusing. The record
shows that the road the Lichina Trust is seeking an easement over
is only a portion of the access road that existed when its parcel was
severed from the common ownership of the Cascade Town
Company. We reach this conclusion after reviewing the evidence
the trial court relied on to find that there was another way of
reaching the Lichina Trust’s property in 1948; namely, aerial
photographs of the neighborhood and the plans from the Colorado
Department of Transportation (CDOT) in connection with U.S.
11 Highway 24, which ran across the parties’ land until it was moved
to its current location in the 1930s.
¶ 21 As of the time of severance on November 17, 1948, the
Cascade Town Company had conveyed Parcel 2 but retained Parcel
1 and Parcel 3 on Figure 1. The photographs from 1947, 1953, and
1960, and the CDOT plans from the 1930s and 1960s, showed a
single road entering the Gjovig Trust’s property from U.S. Highway
24, going across the Lichina Trust’s parcel, proceeding east through
the other parcel that the Cascade Town Company retained, and
then connecting to U.S. Highway 24 again. The retained parcel
through which the eastern portion of the access road once traversed
is marked as Parcel 3 in Figure 1 and as the “Barnes” property in
¶ 22 However, it is undisputed that this part of the access road
became impassable over time. Indeed, the parties stipulated that
“[t]he former road to the east of the Lichina [Trust’s] property
through the Barnes property [was] no longer [usable] due to slope
and roadway changes in topography adjacent to Highway 24.” The
trial court nonetheless determined that an easement over the Gjovig
Trust’s property wasn’t necessary at the time of severance because
12 the Lichina Trust’s property could be reached from the Barnes
property. We disagree with the court for two reasons.
¶ 23 First, just because the access road had two entry points that
could be used to reach the Lichina Trust’s property doesn’t mean
that an easement over the entire access road wasn’t necessary
when the Cascade Town Company divided up the land. In other
words, we’re not persuaded that the parties to the original
conveyance intended for the Lichina Trust’s property to only be
accessible through that portion of the road across the Barnes
property but not the portion of the road across the Gjovig Trust’s
property. See Campbell, 192 P.3d at 472 (noting that in
determining whether the necessity existed at the time of severance,
we consider the intent of the parties to the conveyance). After all, at
the time the Lichina Trust’s property was severed, the Cascade
Town Company retained both the Barnes property and the Gjovig
Trust property (though only for a short time), leaving the Lichina
Trust’s parcel without access to U.S. Highway 24 except through
the Cascade Town Company’s retained land. This fact raises the
presumption that an easement over the access road crossing the
retained land — including both the Gjovig Trust’s property and the
13 Barnes property — was necessary at the time of severance. See
Wagner, 379 P.2d at 168 (an easement of necessity is implied
“where the lands conveyed are without ingress or egress except over
lands retained”). Thus, to the extent the trial court determined that
an implied easement over the Gjovig Trust’s property wasn’t
necessary at the time of severance because that property was
owned by third parties (i.e., the Dittemores), that determination is
not supported by the record.
¶ 24 Second, the trial court determined that the Lichina Trust
failed to establish that the easement was necessary at the time of
severance in part because the court (1) found that the Lichina Trust
“presented no evidence of the purpose for which its property was
conveyed” and (2) “infer[red] that the Cusacks recognized that the
hostile topography rendered the property unbuildable, and access
therefore unnecessary.” We agree with the Lichina Trust’s
argument that these two factual findings aren’t supported by the
record.
¶ 25 Relying on Campbell, Pomeroy, and Bittle, the Lichina Trust
asserts that the purpose for which it intended to use the property
(i.e., for a garage) constituted “normal development” that was
14 reasonably expected when the property was first severed by the
Cascade Town Company in 1948. In support, it points out that a
house on the Gjovig Trust’s property was constructed shortly after
the severance. Put differently, the Lichina Trust argues that
because neighboring parcels have been used for residential
development, its parcel was likewise divided for that purpose and
that the trial court erred by finding that it presented no evidence in
that regard.
¶ 26 Thus, the Lichina Trust relies on the principle that the
purpose for which a property was conveyed may be implied from the
property’s normal development in the circumstances where the
parties failed to explicitly identify that purpose. However, we need
not address this argument because the parties to the original
conveyance expressly stated the purpose for which the Lichina
Trust’s parcel may be used. The language of the deed from 1948
explicitly indicated that the parcel was intended for residential
development. The deed said that the “conveyance [was] made upon
the express condition . . . that no structure other than a dwelling
house or buildings appurtenant thereto shall be erected” on the
parcel. (Emphasis added.) Therefore, the record doesn’t support
15 the trial court’s finding that the Lichina Trust presented no
evidence of the purpose for which its parcel was conveyed.
¶ 27 We also agree with the Lichina Trust’s argument that there is
no record support for the trial court’s inference that the Cusacks
intended to leave the parcel without access because it was
unbuildable. True, photos and the topographical map of the parcel
show a steep, rocky, and rugged terrain. But nothing in the record
suggests that the Cusacks thought that any access was
unnecessary because the parcel wasn’t suitable for development
due to its hostile topography. Indeed, the fact that, at the time of
severance, the Lichina Trust’s property was accessible by the same
road as the other two properties of the common owner supported a
contrary inference. And perhaps more importantly, the parts of the
original deed quoted above disproved that inference altogether.
¶ 28 Because the trial court’s findings aren’t supported by the
record, we conclude that the court erred when it determined that
the Lichina Trust failed to establish that the necessity for the
easement over the Gjovig Trust’s property existed at the time of
severance.
16 b. The Trial Court Erred in Assessing the Third Element of the Lichina Trust’s Easement of Necessity Claim
¶ 29 We also conclude that the trial court erred in analyzing
whether the Lichina Trust established great necessity for the
easement over the Gjovig Trust’s property. The court observed that
the Lichina Trust didn’t “present any evidence of great necessity for
‘the particular easement’ sought, at the time of severance.” It then
concluded that the Lichina Trust failed to satisfy this requirement
because at the time of severance, the portion of the access road
across the Barnes property offered reasonable means of ingress and
egress. Put differently, the court determined that there was no
great necessity for the easement over the Gjovig Trust’s property for
the same reason there was no necessity at the time of severance.
¶ 30 But the “great necessity” element is separate and distinct from
the requirement that the necessity for the sought-after easement
existed at the time of severance. While the latter element requires a
court to consider only the circumstances as they existed when the
dominant estate was severed from the common ownership, the great
necessity element requires the court to also consider whether the
requested easement is presently necessary. See LeSatz, 757 P.2d at
17 1092; Bittle, ¶¶ 35-37; see also Bob Daniels & Sons v. Weaver, 681
P.2d 1010, 1017 (Idaho Ct. App. 1984) (stating that, under Idaho
law, the third element of the claim requires “great present necessity
for the easement”).
¶ 31 In assessing great necessity at the time of severance, the trial
court relied on a statement from Campbell providing that “[t]he
critical time in determining the existence of an easement by
necessity is the time when the dominant estate is severed from the
servient estate.” 192 P.3d at 470 (quoting Hurlocker v. Medina, 878
P.2d 348, 351 (N.M. Ct. App. 1994)). But the trial court’s reliance
on this language was misplaced. Even though the Campbell
division noted that the time of severance was “critical” when
determining whether an easement of necessity exists, it also
considered the present circumstances in addressing the third
element of the claim. The division affirmed the trial court’s
determination that the necessity for the easement was great in part
because the plaintiffs’ lot was presently landlocked, they “were
unable to negotiate access to their lot over any of the other adjacent
property,” the lack of access rendered the lot useless, and that
result was contrary to public policy. Id. at 472-73. Thus, Campbell
18 doesn’t stand for the proposition that whether the necessity for the
particular easement is great should only be assessed at the time of
severance.2 See LeSatz, 757 P.2d at 1092 (assessing great necessity
at time of suit); Bittle, ¶¶ 35-37 (same).
¶ 32 The trial court here misapplied Campbell and other cases of
this court referenced above by only considering the time of
severance to determine whether the Lichina Trust established the
third element of its easement of necessity claim. The court
essentially collapsed two separate requirements of the claim by
concluding that the fact the Lichina Trust’s property was accessible
at the time of severance from the two entry points for the same road
automatically meant that there was no great necessity for the
easement, even though the circumstances have changed since the
severance and only a portion of the former road still exists. We
conclude that by limiting its analysis to the circumstances existing
at the time of severance, the court failed to apply the correct legal
standard.
2 Notably, Hurlocker v. Medina, 878 P.2d 348, 351 (N.M. Ct. App.
1994), the case Campbell quoted, used the “critical time” language in connection with the unity of ownership element of the claim, not in connection with great necessity.
19 ¶ 33 In doing so, the court also failed to consider evidence of the
present great necessity for the easement over the Gjovig Trust’s
property. For example, Lichina testified that his trust’s parcel
wasn’t accessible from his home on foot or otherwise due to the
sixty percent drop between the two parcels. Cf. Bittle, ¶ 35
(concluding that a party failed to establish great necessity for the
particular easement when the alleged dominant estate was
accessible on foot from another property of the party). He also
testified that while he had driven to his trust’s parcel through the
Barnes property on numerous occasions in the past, that portion of
the access road was no longer passable. Lichina stated that the
only alternative to accessing the parcel through the Gjovig Trust’s
property would be a bridge from U.S. Highway 24, which, according
to Lichina, would be “a two-million-dollar” construction project. Cf.
LeSatz, 757 P.2d at 1092 (owner of landlocked property failed to
show great necessity for the easement sought where he could obtain
license for construction of a foot or vehicular bridge and where
there was no evidence that the cost of such a construction would be
prohibitive or grossly in excess of the value of the property itself).
And he testified that, in the absence of the easement, his trust’s
20 parcel is useless. See Campbell, 192 P.3d at 472-73 (concluding
that the third element was met in part because the lack of access
rendered the property useless, and that result was contrary to
public policy).
¶ 34 In sum, the trial court erred in its application of the great
necessity requirement by only evaluating it at the time of severance.
It also erred in its findings that alternate access at the time of
severance meant that there was no great necessity for an easement
and that the Cascade Town Company deeded the property with the
intent that the parcel remain landlocked. We therefore reverse the
court’s judgment and remand the case for further proceedings
consistent with this opinion.
B. Trial Court Attorney Fees
¶ 35 On cross-appeal, the Gjovig Trust contends that the trial court
erred by denying its motion for an award of attorney fees under
section 13-17-102, C.R.S. 2024. We disagree.
¶ 36 Section 13-17-102(2) provides that a court may award
attorney fees against a party “who has brought or defended a civil
action, either in whole or in part, that the court determines lacked
21 substantial justification.” As pertinent here, “lack[s] substantial
justification” means “substantially groundless.” § 13-17-102(9)(a).
“A claim is substantially groundless if the allegations in the
complaint, while sufficient to survive a motion to dismiss for failure
to state a claim, are not supported by any credible evidence at
trial.” Gravina Siding & Windows Co. v. Gravina, 2022 COA 50,
¶ 87 (emphasis added) (quoting City of Aurora v. Colo. State Eng’r,
105 P.3d 595, 618 (Colo. 2005)). A claim is also groundless if no
evidence supports an essential element of that claim, even if there
is evidence supporting other elements. State ex rel. Coffman v.
Robert J. Hopp & Assocs., LLC, 2018 COA 71, ¶ 29. However, a
losing position isn’t necessarily groundless, nor is a claim that fails
to establish a prima facie case if some credible evidence supports
that claim. Id.
¶ 37 A trial court is in the best position to determine whether a
claim lacked substantial justification because that analysis is a
question of fact for the trial court. Argo v. Hemphill, 2022 COA 104,
¶ 51. Therefore, we review a trial court’s denial of a motion for an
award of attorney fees for an abuse of discretion. Front Range Res.,
LLC v. Colo. Ground Water Comm’n, 2018 CO 25, ¶ 15. A court
22 abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or is based on a misapplication or
misunderstanding of the law. See id.
2. The Trial Court Didn’t Abuse Its Discretion by Denying the Attorney Fee Request
¶ 38 The Gjovig Trust contends that the trial court abused its
discretion by denying the motion for an award of attorney fees
because the Lichina Trust’s claims for a prescriptive easement and
an implied easement of necessity were substantially groundless. As
to the former claim, the Gjovig Trust asserts that the Lichina Trust
provided no evidence that the access road had been used without
interruption for the statutory prescriptive period of eighteen years.
See § 38-41-101(1), C.R.S. 2024. Similarly, the Gjovig Trust argues
that the easement of necessity claim was substantially groundless
because the Lichina Trust presented no evidence that there was a
great necessity for the easement at the time of severance, a material
element of that claim. We discern no error.
a. The Prescriptive Easement Claim Wasn’t Substantially Groundless
¶ 39 As we note above, the Lichina Trust asserted the prescriptive
easement claim as an alternative theory for relief. In support, it
23 alleged that the access road across the Gjovig Trust’s property had
been used continuously “[f]or a period well in excess of 18 years.”
The Lichina Trust further alleged that “[u]pon information and
belief, the Access Road was used [starting] in the 1960s through
[the trust’s] ownership of the [parcel].” And in the discovery
responses it provided approximately fifteen months later, the
Lichina Trust indicated that the following persons had used the
road to access the parcel:
Tom and Mary Lichina, and their real estate agent . . . , when looking at the [parcel] prior to purchase, and then after closing on the purchase. Upon information and belief, prior owners (and guests or invitees of those owners) of the [parcel] including their agents.
¶ 40 The trial court dismissed the prescriptive easement claim after
granting the Gjovig Trust’s uncontested motion for partial summary
judgment.3 Even so, we perceive no error in the trial court’s
determination that the Lichina Trust’s prescriptive easement claim
didn’t lack substantial justification. For starters, it is appropriate
for a party to permit the disposal of a claim after completing
3 The Lichina Trust failed to respond to the motion even though the
trial court granted its request for an extension of time in which to file a responsive brief.
24 discovery and realizing that the claim can’t prevail. While the better
practice would have been for the Lichina Trust to voluntarily
dismiss its prescriptive easement claim, the fact that the court
dismissed it upon the Gjovig Trust’s uncontested motion for partial
summary judgment doesn’t automatically mean that the claim was
substantially groundless.
¶ 41 Moreover, the record shows that some evidence supporting the
existence of a prescriptive easement did come out at trial. For
example, Lichina testified that he and his wife had used the Gjovig
Trust’s property to access their trust’s parcel both before and after
they purchased it in 2003. He also testified that, while they weren’t
allowed to utilize the road after Gjovig denied them access in 2010
or 2011, it was his understanding that this road had been in use
since the 1940s. Thus, to the extent the Gjovig Trust argues that
the Lichina Trust presented no evidence (whether before or at trial)
in support of its prescriptive easement claim, this testimony cuts
against that argument.
25 b. The Easement of Necessity Claim Wasn’t Substantially Groundless
¶ 42 Similarly, we disagree with the Gjovig Trust’s argument that
the claim for an implied easement of necessity was substantially
groundless. Again, the Lichina Trust presented evidence that there
was a unity of ownership over the property until 1948, when its
parcel was severed from the common owner; the parcel was
conveyed for residential development; the road across the Gjovig
Trust’s property existed at that time and had been historically used
to access the parcel; and the parcel is useless without the easement
because it can’t be accessed any other way. The mere fact that the
trial court determined that the Lichina Trust still failed to establish
the second and third elements of its implied easement of necessity
claim — a determination that we reverse in this appeal — doesn’t
render the easement of necessity claim groundless. Indeed, the
above record shows that the Lichina Trust presented at least some
evidence in support of that claim. See Robert J. Hopp & Assocs.,
LLC, ¶ 29.
¶ 43 Under these circumstances, then, we can’t say that the trial
court’s decision to deny the Gjovig Trust’s request for an award of
26 attorney fees was manifestly arbitrary, unreasonable, or unfair, or
was based on the court’s misapplication of the law. See Front
Range Res., LLC, ¶ 15. We therefore conclude that the trial court
did not abuse its discretion in denying the request.
C. Appellate Attorney Fees
¶ 44 Finally, because we conclude that the Lichina Trust’s claims
weren’t substantially groundless, we also disagree with the Gjovig
Trust’s argument that “[t]his appeal is a mere extension of the
original groundless claims.” Indeed, the Lichina Trust prevailed in
this appeal by successfully challenging the trial court’s judgment.
See Mountain States Adjustment v. Cooke, 2016 COA 80, ¶ 47
(nonprevailing appellate party is not entitled to an award of
appellate attorney fees). We therefore deny the Gjovig Trust’s
request for appellate attorney fees.
III. Disposition
¶ 45 The trial court’s judgment is reversed, and the case is
remanded to the trial court for further proceedings consistent with
this opinion. The attorney fee order is affirmed.
JUDGE HARRIS and JUDGE TOW concur.