24CA0046 Majersky v LCM Prop Mgmt 10-10-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0046 Arapahoe County District Court No. 23CV109 Honorable Elizabeth Beebe Volz, Judge
Gregory Majersky,
Plaintiff-Appellant,
v.
LCM Property Management, Inc.,
Defendant-Appellee.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE FOX Johnson and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 10, 2024
Gregory Majersky, Pro Se
Jachimiak Peterson Kummer, LLC, Joseph R. Kummer, Taylor A. Clapp, Lakewood, Colorado, for Defendant-Appellee ¶1 Plaintiff, Gregory Majersky, appeals the district court’s order
granting summary judgment in favor of defendant, LCM Property
Management, Inc. (LCM). We affirm and remand the case to the
district court for a determination of LCM’s reasonable attorney fees.
I. Background
¶2 Majersky is a resident and homeowner in Aurora’s
Summerfield Villas community, which is governed by a homeowners
association (HOA), the Summerfield Villas Homeowners Association
(Summerfield). Summerfield hired LCM as its property
management company. This appeal arises out of a dispute between
Majersky and LCM’s employee, Suzanne Lopez, the Summerfield
Community Manager. In March 2023, Majersky expressed an
interest in running for a seat on Summerfield’s Board of Directors
(Board). However, Lopez informed Majersky that he could not vote
or run in the election because he was delinquent in paying his HOA
assessment fees.
¶3 On April 25, 2023, proceeding pro se, Majersky sued LCM,
alleging that, as Lopez’s employer, LCM violated Majersky’s First
Amendment rights by restricting his participation in the
Summerfield election. Majersky later amended his complaint to
1 allege that the same conduct violated his Fourteenth Amendment
due process rights. LCM then moved to dismiss Majersky’s First
Amendment claims. The district court granted the motion, finding
that Majersky failed to state a claim under C.R.C.P. 12(b)(5)
because LCM and Summerfield are private entities, not “state
actors” subject to the First Amendment. Before discovery, LCM
moved for summary judgment on Majersky’s remaining due process
claims, which the court also granted.
¶4 In granting summary judgment, the district court focused
primarily on the proper interpretation of Summerfield’s “Bylaws,”
“Declarations,” “Rules and Regulations,” and “Articles of
Incorporation” (collectively, the Governing Documents). It found no
genuine dispute as to any material facts, based on the following:
• The Bylaws authorize the Board and its agents to
preclude a homeowner from voting on Summerfield
matters when the homeowner has delinquent assessment
fees.
• Although the Governing Documents do not explicitly
address whether a delinquent homeowner may run for a
Board position, the Bylaws provision that restricts voting
2 rights can reasonably be applied to so preclude
delinquent homeowners.
• The Governing Documents authorize the Board to employ
agents to enforce the Governing Documents.
• The Board hired LCM consistently with these provisions.
• Majersky was delinquent and thus properly precluded
from voting and running in the Summerfield election.
¶5 LCM subsequently moved to recover attorney fees and costs as
the prevailing party under section 38-33.3-123(1)(c), C.R.S. 2024.
Shortly thereafter, Majersky filed his notice of appeal. On February
16, 2024, after the notice of appeal was filed, the district court
found that LCM was entitled to attorney fees but stayed its ruling
on the amount of the award pending this appeal.
II. Issues Raised on Appeal
¶6 On appeal, Majersky raises two main arguments. First, he
argues that the district court erroneously interpreted the Bylaws as
allowing the Board and LCM to suspend a delinquent homeowner’s
eligibility to run for a Board seat. Second, he argues that the
district court erred by finding that the Board and/or the Governing
Documents gave LCM and Lopez authority to suspend his voting
3 rights. Thus, Majersky asserts that LCM violated his Fourteenth
Amendment due process rights by suspending his rights to vote in
and run for the Summerfield election.1 Majersky also raises several
arguments that were not preserved for appeal because they were
not raised in the district court or were raised for the first time in his
reply brief. Finally, LCM asks us to award its attorney fees under
section 38-33.3-123(1)(c) for defending this appeal.
III. Standard of Review
¶7 We review de novo orders granting summary judgment. Vista
Ridge Master Homeowners Ass’n v. Arcadia Holdings at Vista Ridge,
LLC, 2013 COA 26, ¶ 8. Under C.R.C.P. 56(c), summary judgment
is warranted when “there is no genuine issue as to any material fact
[such] that the moving party is entitled to a judgment as a matter of
law.” We also review de novo a district court’s interpretation of
1 In his notice of appeal, Majersky indicated that he appealed only
the district court’s order from December 7, 2023, not the court’s June 27, 2023, order dismissing his First Amendment claims. See Prairie Mountain Publ’g Co. v. Regents of Univ. of Colo., 2021 COA 26, ¶ 10 n.3 (“Arguments not advanced on appeal are generally deemed waived.”). However, we liberally construe pro se parties’ filings. See Minshall v. Johnston, 2018 COA 44, ¶ 21. Regardless of whether Majersky waived his First Amendment arguments, our conclusion that LCM and Summerfield are not state actors is dispositive of both constitutional claims.
4 declarations of covenants, bylaws, and other governing documents.
See Vista Ridge, ¶ 8.
IV. Analysis
A. The Bylaws Implicitly Authorize Summerfield and LCM to Suspend Majersky’s Eligibility to Run in Summerfield Elections
¶8 Majersky first argues that the district court erred by finding
that the Governing Documents allow the Board or its agent(s) to
suspend a delinquent homeowner’s eligibility to run in Board
elections. Essential to the district court’s ruling was Article VII,
section (1)(b) of the Bylaws, which grants the Board authority to,
“suspend the voting rights . . . of a member during any period in
which such member shall be in default in the payment of any
assessment levied by [Summerfield].”
¶9 Although nothing in the Governing Documents discusses
eligibility to run in Summerfield elections, the court reasoned that
the Bylaws provision restricting voting rights could reasonably
apply to restricting a delinquent homeowner’s eligibility to run for a
Board seat. Specifically, because the homeowner would be unable
to vote on matters before the Board or meaningfully participate as a
5 Board member, the court found that a contrary interpretation
would lead to absurd results. We agree.
¶ 10 When interpreting HOA covenants and other governing
documents, we first look to the plain language, “giving words and
phrases their common meanings.” McShane v. Stirling Ranch Prop.
Owners Ass’n, 2017 CO 38, ¶ 16. When a document’s meaning is
clear, we will enforce it as written. Id. At the same time, we
“construe covenants as a whole, keeping in mind their underlying
purpose.” Buick v. Highland Meadow Ests. at Castle Peak Ranch,
Inc., 21 P.3d 860, 862 (Colo. 2001). Thus, we seek to give effect to
the intention of those who created the instrument and avoid hyper-
technical interpretations that will defeat that intention or yield
absurd results. Quarky, LLC v. Gabrick, 2024 COA 76, ¶ 11. On
this point, Evergreen Highlands Ass’n v. West, 73 P.3d 1 (Colo.
2003), is instructive.
¶ 11 In West, our supreme court considered whether, absent an
explicit written provision imposing mandatory dues, an HOA had
implicit power to collect assessments from members. Id. at 2, 4.
Relying in part on the Colorado Common Interest Ownership Act
6 (CCIOA)2 and the Restatement (Third) of Property: Servitudes (Am.
L. Inst. 2000) (hereinafter, Restatement),3 the court found such an
implied power. West, 73 P.3d at 7-9. Specifically, because
collecting assessment fees is so integral to an HOA’s function, this
power can be implied. See id. at 8 (Colorado’s continued economic
prosperity depends on “the strengthening of homeowner
associations . . . through enhancing the financial stability of
associations by . . . “collect[ing] delinquent assessments” (quoting
§ 38-33.3-102(1)(b), C.R.S. 2024)). For two reasons, we apply
similar reasoning here.
¶ 12 First, allowing a delinquent homeowner to serve on the Board
undermines an HOA’s essential ability to collect delinquent fees.
This situation could create an inherent conflict of interest between
the HOA, the member seeking to evade payment, and other Board
2 §§ 38-33.1-101 to -402, C.R.S. 2024. 3 While Colorado has not explicitly adopted the Restatement in full,
our courts consistently rely on its principles for guidance. See, e.g., Evergreen Highlands Ass’n v. West, 73 P.3d 1, 4 (Colo. 2003) (adopting the Restatement’s approach regarding homeowners associations’ implicit power to collect fees); Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1235 (Colo. 2001) (adopting part of the Restatement concerning easements); Lobato v. Taylor, 71 P.3d 938, 950-56 (Colo. 2002) (relying heavily on the Restatement to reach a conclusion).
7 members. Indeed, CCIOA requires specific policies concerning
Board members’ conflicts of interest.4 § 38-33.3-209.5(1)(b)(II), (4),
C.R.S. 2024; see also § 38-33.3-310.5, C.R.S. 2024 (applying
section 7-128-501, C.R.S. 2024, the Colorado Revised Nonprofit
Corporation Act’s conflicts of interest provision, to HOAs).
Additionally, HOAs may “without specific authorization in the
declaration . . . [e]xercise any other powers necessary and proper for
the governance and operation of the association.” § 38-33.3-
302(1)(q), C.R.S. 2024. Preventing conflicts of interest on the Board
is one such power that we may reasonably infer.
¶ 13 Second, allowing a delinquent homeowner to serve on the
Board leads to absurd results and contradicts the homeowner’s
duties as a Board member. As a nonprofit, Summerfield is subject
to additional statutory requirements. Thus, Summerfield Board
members have a duty to act “in the best interests of the nonprofit.”
§ 7-128-401(1)(c), C.R.S. 2024; see also Restatement § 6.14 cmt. a
(imposing on HOA directors and officers a duty to comply with the
4 While Summerfield does not appear to have such a provision in its
Governing Documents, it would be a best practice to adopt one, as it is as a statutory requirement. See § 38-33.3-117(1.5)(c), C.R.S. 2024 (applying section 38-33.3-209.5 to HOAs created before 1992).
8 governing documents). Failing to pay required assessment fees
both violates Summerfield’s Governing Documents and conflicts
with its interest in collecting fees to care for common areas.
Moreover, a delinquent homeowner who cannot vote but can sit on
the Board would be a non-voting member, unable to perform
essential Board functions.
¶ 14 Such conflicted or “lame duck” membership contradicts
CCIOA and Summerfield’s Governing Documents. Therefore, while
Majersky is correct that the Governing Documents do not expressly
require homeowners to be in “good standing” or current on their
dues to run in Summerfield elections, we find that a hyper-
technical interpretation is not appropriate in this instance. See
Quarky, ¶ 11. Instead, we hold that CCIOA and the Bylaws give the
Board an implied power to suspend a delinquent homeowner’s
eligibility to run for a Board seat.5 Under the Bylaws and
Declarations, Majersky was required to pay his assessments. It is
5 While Summerfield is technically exempt from section 38-33.3-
306(1)(c), C.R.S. 2024, as an HOA created before 1992, defining Board member qualifications could help avoid disputes like the one before us. See § 38-33.3-117(3) (exempting HOAs created before 1992 from CCIOA except as expressly provided); § 38-33.3-306(1)(c) (requiring Board member qualifications in HOA bylaws).
9 also undisputed that Majersky was in default when he asked to run
in the Summerfield election. Therefore, we affirm the district
court’s conclusion that LCM had authority to prevent Majersky from
running in the election.
B. The Bylaws and the Board gave LCM Authority to Suspend Majersky’s Eligibility to Vote in Summerfield Elections
¶ 15 Next, Majersky contends that the district court erred by
finding that LCM and Lopez had authority to suspend his voting
rights. Specifically, he argues that only the Board has such power
and, even if it could delegate its authority to LCM, it failed to do so.
LCM responds by citing Summerfield’s Rules and Regulations,
which give the Board authority to appoint a “community manager”
responsible for the day-to-day enforcement of the Governing
Documents. Thus, because Summerfield hired LCM and Lopez
(LCM’s employee), LCM argues that it had authority to suspend
Majersky’s voting. We agree for two reasons.
¶ 16 First, both the Bylaws and the Declarations allow the Board to
suspend a delinquent homeowner’s voting rights.6 This is
6 The Bylaws plainly state that “[t]he Board of Directors shall have
power to . . . suspend the voting rights” of delinquent homeowners.
10 consistent with the responsibility that an HOA can require property
owners to pay their dues and penalize a delinquency. See West, 73
P.3d at 7; § 38-33.3-302(1)(j)-(k) (allowing HOAs to impose
assessments, fines, and late fees).
¶ 17 Second, the Governing Documents allow the Board to delegate
responsibilities. Under the Bylaws, the Board may “employ a
manager, independent contractor, or such other employees” it
deems “necessary and . . . prescribe their duties.” The Rules and
Regulations allow the Board to “appoint an agent for the
association, the ‘Community Manager,’ who is authorized to handle
day to day enforcement of these rules and regulations, the
Declarations, the Articles of Incorporation, and the Bylaws.” Thus,
the power to manage “day to day enforcement” of the Bylaws
implicitly includes the disputed provision regarding voting rights.7
The power to delegate responsibilities is also consistent with
CCIOA. See § 38-33.3-302(1)(c); § 38-33.3-306(1)(d), C.R.S. 2024.
7 Contrary to Majersky’s argument, the Board need not explicitly
enumerate every one of the Community Manager’s enforcement powers.
11 ¶ 18 Majersky does not dispute Lopez’s role as “HOA manager.”
Moreover, LCM established in the district court that — at all
relevant times — LCM was Summerfield’s agent as its property
management company, and Lopez was an LCM employee. Finally,
Majersky never disputed the fact or amount of his delinquent
assessment fees. When Lopez informed Majersky that he could not
vote, she did not create policy or impose new, unknown rules;
acting on behalf of the Board and consistently with the Bylaws, she
merely communicated that he was “in collection and can’t vote.”
Therefore, we affirm the district court’s interpretation that the
Bylaws granted LCM authority to suspend Majersky’s eligibility to
vote in the Summerfield election.
C. LCM is Not a “State Actor”
¶ 19 Majersky reasserts his argument raised in the district court
that LCM’s conduct in restricting his voting and election eligibility
violated his Fourteenth Amendment due process rights. He also
asserts, in a single sentence, that Lopez and LCM “obstructed my
12 right to free speech.”8 LCM responds that the Constitution does not
apply to either LCM or Summerfield as private entities.
¶ 20 In granting summary judgment for LCM on Majersky’s due
process claims, the district court focused on the proper
construction of the Governing Documents rather than on whether
the Fourteenth Amendment applied to LCM as a private entity.
However, in its order dismissing Majersky’s First Amendment
claims, the court briefly discussed whether the Fourteenth
Amendment applied to LCM.9 Because neither LCM nor
Summerfield is a state actor to whom the First and Fourteenth
Amendments apply, we affirm.
¶ 21 United States Supreme Court precedent makes clear that the
Fourteenth Amendment “can be violated only by conduct that may
be fairly characterized as ‘state action.’” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 924 (1982). The limited circumstances in which
8 As discussed, supra, note 1, our conclusion concerning due
process is dispositive of Majersky’s First Amendment claims. 9 Because LCM initially only moved for partial dismissal on the First
Amendment claims, Majersky’s due process claims were not before the district court at that time. However, the court quoted People v. Ramadon, 2013 CO 68, ¶ 20 n.2, for the proposition that “[i]t is well settled that a constitutional due process violation can only occur by way of a state actor.”
13 a private entity qualifies as a state actor include, for example, when
(1) “the private entity performs a traditional, exclusive public
function”; (2) the government has compelled a private entity’s
action; or (3) the government and the private entity act together.
Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 809 (2019).
Here, Majersky has failed to allege facts sufficient to find that
Summerfield and LCM qualify as state actors.
¶ 22 While HOAs make and enforce rules, often provide utilities,
and may administer land-use regulations, they “are created by
private contract” and are generally not considered state actors.
Restatement ch. 6, intro. note. As private organizations, HOAs
typically do not perform traditional and exclusive public functions.
See Olson v. Belvedere Ass’n, No. 2:14-cv-527-DK-BCW, 2015 WL
1520911, at *5 (D. Utah Apr. 2, 2015) (unpublished opinion). Nor
is an HOA a state actor merely because it contacts state officials.
See Jordan v. Simones, Civ. A. No. 13-cv-01675-REB-MJW, 2014
WL 1133291, at *4-5 (D. Colo. Mar. 21, 2014) (unpublished opinion)
(calling police does not make an HOA a state actor). Finally, an
HOA’s governing documents create contractual, not constitutional,
14 rights.10 An HOA, as a private entity enforcing private rights on
private property, may condition eligibility to vote, run in elections,
or use recreational and social facilities on the homeowner’s
payment of dues. See Restatement §§ 6.8 cmt. b, 6.17 cmt. a. That
is exactly what occurred here. Because the First and Fourteenth
Amendments do not apply to LCM, we affirm the district court’s
orders dismissing Majersky’s constitutional claims.
D. Unpreserved Claims
¶ 23 Majersky also raises numerous claims for the first time in his
opening and reply briefs. Although we liberally construe pro se
filings, “we do not address arguments made for the first time on
appeal,” Minshall v. Johnston, 2018 COA 44, ¶ 21, or issues raised
for the first time in a reply brief, In re Estate of Liebe, 2023 COA 55,
10 A division of this court recently held that HOA foreclosure notices
must comply with state and federal constitutional due process requirements. C & C Invs., LP v. Hummel, 2022 COA 42, ¶¶ 42, 48. However, foreclosure presents a markedly different situation from the one before us here. Namely, unlike foreclosure actions, eligibility to vote in and run for an HOA election does not implicate a constitutionally protected right. See Connecticut v. Doehr, 501 U.S. 1, 13 (1991) (discussing due process protections in the context of liens, mortgages, and other financial encumbrances); Flagg Bros. v. Brooks, 436 U.S. 149, 158 (1978) (noting that state action does not apply to “private political activity . . . only state-regulated elections”).
15 ¶ 19. Thus, we do not reach the merits on several of Majersky’s
claims, including
• the illegibility of LCM’s Exhibits A and B;
• arguments concerning Uniform Commercial Code
section 4-1-304, C.R.S. 2024 and non-existent CRE
26-26.1;
• LCM’s authority to collect assessment fees;
• an argument that Majersky unintentionally agreed to
LCM’s motion for summary judgment; and
• allegations that LCM committed perjury in its answer
brief by, among other things, mischaracterizing
Lopez’s role as Community Manager and failing to
disclose that Lopez initially accepted his application
for the Board without mentioning his overdue fees.
E. Attorney Fees
¶ 24 LCM requests an award of its attorney fees incurred on appeal
under section 38-33.3-123(1)(c). Citing section 13-17-102(6),
C.R.S. 2024, Majersky argues that, as a pro se party, we cannot
impose attorney fees on him unless he “clearly knew or reasonably
should have known” this action was substantially frivolous,
16 groundless, or vexatious. While creative, this argument does not
account for the fact that another statute specifically provides for
attorney fees, so section 13-17-102(6) does not apply. See § 13-17-
106, C.R.S. 2024.
¶ 25 As the prevailing party, LCM is entitled to reasonable attorney
fees under section 38-33.3-123(1)(c).11 We exercise our discretion
under C.A.R. 39.1 and remand the case to the district court to
determine the amount of those fees. Because the district court
stayed its determination of attorney fees incurred in the district
court proceedings, it may determine those fees on remand.
V. Disposition
¶ 26 The district court’s order granting summary judgment for LCM
is affirmed, and the case is remanded.
JUDGE JOHNSON and JUDGE SCHOCK concur.
11 In a recent amendment to section 38-33.3-123(1)(c), C.R.S. 2024,
the legislature added subsections (1)(c)(I) and (1)(c)(II), which substantially limit attorney fees awards to prevailing HOAs absent a homeowner’s willful failure to comply with the governing documents. See Ch. 422, sec. 1, § 38-33.3-123, 2024 Colo. Sess. Laws 2881. These amendments apply to “debts accrued on or after the applicable effective date of this act,” which is August 7, 2024. Sec. 9, 2024 Colo. Sess. Laws at 2887. Thus, the amendments apply to any attorney fees LCM accrued on or after August 7, 2024.