24CA0230 Murphy Creek v Matise 11-14-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0230 Arapahoe County District Court No. 23CV31209 Honorable Elizabeth Beebe Volz, Judge
Murphy Creek Development, Inc., a Colorado corporation and Murphy Creek, LLC, a Wyoming limited liability company,
Plaintiffs-Appellants,
v.
Brian K. Matise,
Defendant-Appellee.
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE NAVARRO Gomez and Richman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024
Seter, Vander Wall & Mielke, P.C., Kim J. Seter, Elizabeth A. Dauer, Russell Newton, Greenwood Village, Colorado, for Plaintiffs-Appellants
Winget, Spadafora & Schwartzberg, LLP, Derek C. Anderson, Jennifer R. O’Shea, Boulder, Colorado, for Defendant-Appellee
*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 Plaintiffs, Murphy Creek Development, Inc. and Murphy
Creek, LLC (collectively, Murphy Creek), appeal the district court’s
dismissal of the claims against defendant, Brian K. Matise, under
section 13-20-1101, C.R.S. 2024, commonly known as the anti-
SLAPP statute. (“SLAPP” stands for strategic lawsuit against public
participation.) We affirm the order and remand with directions.
I. Factual and Procedural History
¶2 Murphy Creek Metropolitan District No. 3 (the District) is
organized under the Special District Act. See § 32-1-101 to -113,
C.R.S. 2024. Under the control of its board of directors, the District
has the authority to provide services for properties within its
boundaries, such as security, landscaping, and snow removal.
Murphy Creek Dev., Inc. v. Murphy Creek Metro. Dist. No. 3, slip op.
at ¶ 4 (Colo. App. No. 20CA2106, Apr. 28, 2022) (not published
pursuant to C.A.R. 35(e)). To pay for these services, the District
may impose fees on owners and developers of the properties. Id.
¶3 Murphy Creek owns property within the District’s boundaries
as well as bordering property. Much of the land owned by Murphy
Creek was vacant at the times relevant to this case.
1 ¶4 In 2018, the District, through its board, hired Matise as
general counsel. The District asked Matise if it could impose fees
that would be allocated differently between occupied property and
vacant property. Matise informed the board that the fees could be
allocated differently between occupied and vacant lots if the
allocation was based on a rational relationship between either the
cost of the services provided to the property or the degree that each
property benefited from the services. The District proposed and
adopted a fee structure allocating fees based on the use of the
property (the 2018 Resolution).
¶5 In 2019, Murphy Creek filed suit to challenge the fees imposed
on its property, and Matise acted as counsel for the District in that
litigation. A district court found the fees to be unreasonable based
on the costs of servicing the property; thus, the court invalidated
those fees. The court dismissed Murphy Creek’s other claims as
well as the District’s counterclaims. Both parties appealed, and a
division of this court affirmed the judgment. Id. at ¶¶ 1-2.
¶6 In 2021, the District adopted another fee resolution, which set
forth new fees and provided that, until paid, the fees would
constitute a statutory lien on the property served (2021 Resolution).
2 Murphy Creek paid the fees under protest and again sued the
District along with some individuals, including Matise. In addition
to challenging the 2021 Resolution, Murphy Creek alleged that
some of the District’s board members and Matise engaged in fraud,
a civil conspiracy, and a deprivation of Murphy Creek’s
constitutional rights in violation of 42 U.S.C. § 1983. Specifically,
Murphy Creek alleged that the various fees imposed were improper
and that the board and Matise had engaged in misconduct when
implementing the fees and defending them in court.
¶7 Matise filed a special motion to dismiss the claims against him
and a supporting affidavit under section 13-20-1101(3)(a). Murphy
Creek responded to the motion but did not submit any opposing
affidavits. Instead, Murphy Creek relied on its allegations in the
complaint and submitted five exhibits.
¶8 The district court held a hearing on the special motion and
concluded that Matise had met his initial burden to prove that the
anti-SLAPP statute applied to his conduct at the heart of Murphy
Creek’s claims. The court permitted Murphy Creek to file a
supplemental brief on whether the litigation privilege applied to
Matise’s statements and conduct and whether Murphy Creek had
3 established a reasonable likelihood that it could prevail on its
claims at trial. The court then granted Matise’s special motion to
dismiss the claims against him, in part because the court found
that the litigation privilege shielded some of Matise’s conduct.
¶9 Murphy Creek moved for reconsideration and for permission to
file an amended complaint. The district court denied both motions.
¶ 10 On appeal, Murphy Creek contends that the district court
erred by concluding that (1) the anti-SLAPP statute applied to
Matise’s conduct, and (2) Murphy Creek did not establish a
reasonable likelihood of success on its claims against him.
II. Anti-SLAPP statute
A. General Principles
¶ 11 The General Assembly enacted section 13-20-1101 “to address
lawsuits aimed at stifling or punishing the exercise of the First
Amendment rights to free speech and to petition the government.”
L.S.S. v. S.A.P., 2022 COA 123, ¶ 1. The statute’s purpose is to
“encourage and safeguard” the exercise of those constitutional
rights “to the maximum extent permitted by law and, at the same
time, to protect the rights of persons to file meritorious lawsuits for
demonstrable injury.” § 13-20-1101(1)(b). The statute seeks to
4 balance competing interests by creating a mechanism for “weeding
out, at an early stage, nonmeritorious lawsuits brought in response
to a defendant’s petitioning or speech activity.” Tender Care
Veterinary Ctr., Inc. v. Lind-Barnett, 2023 COA 114, ¶ 12 (cert.
granted Sept. 3, 2024). If the plaintiff’s claim arises from the
defendant’s conduct falling within the statute’s purview, a district
court may grant a “special motion to dismiss” the plaintiff’s claim.
§ 13-20-1101(3)(a).
¶ 12 A special motion to dismiss initiates a two-step process. First,
the defendant bears the burden to show that their conduct
underlying the plaintiff’s claim falls within the statute. L.S.S., ¶ 21.
Second, if the defendant shows that their conduct falls within the
statute’s scope, the burden shifts to the plaintiff to establish a
reasonable likelihood that they will prevail on the claim. Id. at ¶ 22;
¶ 13 We review de novo an order granting or denying a special
motion to dismiss, applying the same two-step analysis as the
district court. Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶ 21.
5 B. Summary of Relevant Factual Allegations
¶ 14 Murphy Creek alleged that Matise committed fraud and
participated in a “private conspiracy” with others to “gain control of
the District and weaponize its statutory powers against” Murphy
Creek. Murphy Creek asserted that Matise used governmental
authority to impose an “invalid fee and statutory lien” to achieve
“unlawful goals and goals by unlawful means.”
¶ 15 Murphy Creek’s allegations of fraud focus on the 2018 and
2021 Resolutions adopted by the District’s board. Murphy Creek
alleged the District and Matise knew that the fees associated with
the 2018 Resolution were “not intended to fund services” and
instead were “intended as a penalty to get [Murphy Creek’s]
attention, discourage and penalize agricultural use, and incentivize
development.” Murphy Creek also claimed that Matise, as the
District’s counsel, made misrepresentations to the District (when
providing legal advice about matters under the District’s
consideration) and to others, including about the 2018 Resolution.
¶ 16 Regarding the 2021 Resolution, Murphy Creek asserted that
the District did not intend to use payments derived from vacant
property for the purposes stated by the District; the District
6 misused revenue from the vacant property for general
administration; and Murphy Creek paid the fees “relying on
Defendant Matise’s representations and language of the 2021 Fee
Resolution, and [Murphy Creek] [was] damaged by these false
statements.”
¶ 17 Additionally, Murphy Creek claimed that Matise, while
representing the District in the earlier litigation, submitted
problematic or misleading affidavits, discovery responses, and
motions to the court. Further, Murphy Creek alleged that Matise
filed briefs “fraudulently claiming [the fees] funded additional
landscape and security costs,” made misrepresentations during
closing arguments, and then abused the appellate process.
¶ 18 Relatedly, Murphy Creek alleged that Matise’s challenged
conduct was part of a conspiracy with others to abuse the District’s
power to impose fees as a means to achieve their own personal
objectives and to harass Murphy Creek by discouraging its
agricultural use of the land.1
1 To the extent Murphy Creek relies on its amended complaint, we
reject that reliance because the district court denied its motion to amend the complaint. And that ruling is not properly before us
7 C. Step One: Protected Activity
¶ 19 First, we consider whether Matise’s conduct at the heart of
Murphy Creek’s claims falls within the anti-SLAPP statute’s ambit.
We conclude that it does.
¶ 20 Colorado’s anti-SLAPP statute applies to a cause of action
against a person arising from any “[a]ct in furtherance of a person’s
right of petition or free speech under the United States constitution
or the state constitution in connection with a public issue.” § 13-
20-1101(2)(a), (3)(a). Such an act includes, as relevant here, “[a]ny
written or oral statement or writing made before a legislative,
executive, or judicial proceeding or any other official proceeding
authorized by law” as well as “[a]ny written or oral statement or
writing made in connection with an issue under consideration or
review by a legislative, executive, or judicial body or any other
official proceeding authorized by law.” § 13-20-1101(2)(a)(I)-(II).
because it is beyond the scope of the anti-SLAPP statute’s appeal provisions. See Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, ¶ 56 (“We begin by clarifying that this appeal is limited to the district court order denying defendants’ special motions to dismiss.”); § 13-20-1101(7), C.R.S. 2024.
8 ¶ 21 To determine whether the plaintiff’s claim is based on the
defendant’s protected activity, “we look to the ‘principal thrust or
gravamen of the plaintiff’s cause of action.’” Cent. Valley
Hospitalists v. Dignity Health, 227 Cal. Rptr. 3d 848, 857 (Ct. App.
2018) (citation omitted).2 As summarized above, Murphy Creek’s
allegations arise from Matise’s alleged private agreement with others
to encourage the District to impose unwarranted fees on Murphy
Creek’s property, his advice and statements to the District and
others supporting the fees, and his defense of the fees in court
against Murphy Creek’s lawsuit.
¶ 22 First of all, Matise’s alleged private agreement with others to
impose improper fees and otherwise harass Murphy Creek, in and
of itself, did not cause injury to Murphy Creek. If Matise and the
alleged co-conspirators had reached this agreement and done
nothing else, Murphy Creek would not have suffered any of the
alleged injuries. So the alleged agreement was not the “core-injury
producing conduct,” to use Murphy Creek’s preferred description.
2 Because California has a substantially similar anti-SLAPP statute,
“we look to California case law for guidance in construing and applying section 13-20-1101.” Tender Care Veterinary Ctr., Inc. v. Lind-Barnett, 2023 COA 114, ¶ 16 (cert. granted Sept. 3, 2024).
9 Only Matise’s alleged conduct in furtherance of the alleged
agreement could possibly have harmed Murphy Creek.
¶ 23 Second, the District, not Matise, enacted the fee resolutions
and imposed the fees. According to Murphy Creek’s allegations,
Matise’s challenged conduct relates to his role in the District’s
decisions to impose, collect, and defend the various fees. That
alleged conduct — the “core-injury producing conduct” — involved
Matise’s oral and written statements about the fees and other
issues under the District’s consideration.
¶ 24 And Matise’s statements about the fees and other issues
under the District’s consideration clearly fall within the scope of the
anti-SLAPP statute, whether he made the statements as a citizen or
as counsel to the District and whether he made them before the
litigation or as part of a judicial proceeding. See § 13-20-
1101(2)(a)(I)-(II). This is true because the District is a legislative or
executive body.3
3 To the extent Murphy Creek challenged other fees that we have
not specifically identified in our summary of its allegations, we note that the same analysis applies to those fees. We further conclude that Murphy Creek’s reliance on Tender Care Veterinary Center, ¶ 18, is misplaced because the defendant’s statements there “were
10 ¶ 25 We are not persuaded otherwise by Murphy Creek’s
contentions that Matise’s alleged conduct was “illegal as a matter of
law” and thus outside the protections of the anti-SLAPP statute.
True, where the defendant concedes, or the evidence conclusively
establishes, that the assertedly protected speech or petition activity
was illegal as a matter of law, the defendant cannot use the anti-
SLAPP statute to strike the plaintiff’s action. L.S.S., ¶ 30. But
Matise disputed the alleged illegality of his actions, and Murphy
Creek presented little evidence showing illegality or fraud (as we will
discuss more fully below), so this exception does not apply. Indeed,
to adopt Murphy Creek’s position that Matise cannot rely on the
anti-SLAPP statute because he engaged in fraud and civil
conspiracy would require us to accept as true propositions that
have not been proved. See id. at ¶ 31 (“Certainly, if a defendant
were precluded from satisfying step one anytime a plaintiff alleged
that the defendant’s otherwise-protected statements were false, it
would undercut the purposes of the anti-SLAPP statute and would
allow a plaintiff to evade the statute merely by alleging falsity.”).
not made in connection with any executive, legislative, or judicial body or function, see § 13-20-1101(2)(a)(I)-(II).”
11 ¶ 26 Likewise, Murphy Creek misses the mark when arguing that
Matise’s alleged statements are unprotected because they
demonstrate “per se malpractice on his client.” Murphy Creek
relies on a California case recognizing that an anti-SLAPP statute
does not apply to “a client’s claim against his or her former attorney
for breach of fiduciary duty . . . or for malpractice . . . merely
because the client’s claim against the former attorney followed or
was associated with petitioning activity by the attorney on the
client’s behalf.” Hylton v. Frank E. Rogozienski, Inc., 99 Cal. Rptr.
3d 805, 811 (Ct. App. 2009) (emphasis added). The Hylton case is
readily distinguishable because Matise, in his role as the District’s
counsel, did not owe fiduciary duties to Murphy Creek. Cf. id. at
811-12 (“Hylton’s claims allude to Rogozienski’s petitioning activity,
but the gravamen of the claim rests on the alleged violation of
Rogozienski’s fiduciary obligations to Hylton by giving Hylton false
advice to induce him to pay an excessive fee to Rogozienski.”). In
fact, the Hylton decision recognized that a third-party’s claim
against an attorney based on the attorney’s legal advice and actions
can fall within an anti-SLAPP statute. See id. at 812 (noting that “a
12 malicious prosecution action by a third person against the attorney
may fall within the anti-SLAPP statute”).
¶ 27 Finally, Murphy Creek’s argument that its allegations show
that Matise engaged in “per se commission of fraud on the Colorado
Courts” is unavailing because Murphy Creek cites no authority in
support of such a notion and otherwise concedes that “[t]he fraud
on the Colorado Courts and other circumstantial evidence
admittedly concerns activity covered by Anti-SLAPP.”
¶ 28 For these reasons, we cannot conclude as a matter of law that
Matise’s conduct was not protected by the anti-SLAPP statute, and
we agree with the district court that he satisfied the first step.
D. Step Two: Likelihood of Prevailing
¶ 29 To reiterate, after a defendant shows that the statute applies
to the plaintiff’s claim, the burden shifts to the plaintiff to establish
a “reasonable likelihood that the plaintiff will prevail on the claim.”
§ 13-20-1101(3)(a). This step has been described as a “summary
judgment-like procedure in which the court reviews the pleadings
and the evidence to determine ‘whether the plaintiff has stated a
legally sufficient claim and made a prima facie factual showing
sufficient to sustain a favorable judgment.’” L.S.S., ¶ 23 (emphasis
13 added) (citation omitted). In making this determination, the court
may not resolve any factual conflicts. Coomer v. Donald J. Trump
for President, Inc., 2024 COA 35, ¶ 63; Rosenblum v. Budd, 2023
COA 72, ¶ 24.
¶ 30 Importantly, unlike in the case of a C.R.C.P. 12(b)(5) motion,
the court does not accept the plaintiff’s factual allegations in the
complaint as true. Coomer, ¶ 68. Instead, to defeat an anti-SLAPP
motion, the plaintiff must go further and present evidence
establishing a reasonable likelihood of success. Id. Under the
statute’s plain language, the plaintiff’s evidence typically comes in
the form of an affidavit. See id.; § 13-20-1101(3)(b). “[O]nce
affirmed in an affidavit, the plaintiff’s assertions are no longer mere
allegations; they are evidence. And that evidence must be accepted
as true.” Coomer, ¶ 68. The court may consider the defendant’s
evidence only to determine if it defeats the plaintiff’s claim as a
matter of law. Id. at ¶ 72.
¶ 31 Then, the court “must assess whether the facts in the
affidavits submitted by the plaintiff, ‘if true, establish a reasonable
likelihood of proving each claim under the applicable burden of
proof.’” Id. at ¶ 63 (citation omitted). If the plaintiff meets this
14 burden, then the court must deny the special motion to dismiss;
otherwise, the claim must be dismissed. Id.
¶ 32 In support of his special motion to dismiss, Matise provided an
affidavit and a supplemental affidavit. As Matise emphasizes on
appeal, however, Murphy Creek did not submit an affidavit to meet
its step-two burden to produce evidence.
¶ 33 According to Murphy Creek, it was not required to submit an
affidavit to demonstrate a reasonable likelihood of success on its
claims because Matise’s affidavit did not “refute” Murphy Creek’s
allegations or defeat its “prima facie showing of fraud as a matter of
law.” And in its opening brief, Murphy Creek relies exclusively on
its allegations without mentioning any supporting evidence. But
Murphy Creek misunderstands the applicable framework. As
explained, at step two, Murphy Creek could not rest solely on its
allegations; instead, it bore the burden to produce evidence — “a
prima facie factual showing sufficient to sustain a favorable
judgment.” L.S.S., ¶ 23 (emphasis added) (citation omitted); see
Coomer, ¶ 76. So we turn to whether Murphy Creek met its
evidentiary burden despite its failure to submit any affidavits. See
15 Coomer, ¶ 79 (“No party argues that the court may only consider
affidavits, and we decline to impose such a limitation in this case.”).
¶ 34 As Murphy Creek mentions for the first time in its reply brief,
it filed five exhibits with its response to Matise’s special motion to
dismiss. Exhibit A is an unsworn 2023 declaration from Jake
Willett, a former owner of a landscaping company that provided
services to the District. In the unsworn declaration, Willett said he
“intend[ed] to provide clarification” about an affidavit that he signed
in 2019 and provided to the District. Because Murphy Creek did
not submit that affidavit in response to the special motion to
dismiss, however, it is not entirely clear what Willett attempted to
clarify with his new declaration. Willett declared that “[w]hile the
District’s attorneys drafted the affidavit, I reviewed the contents and
approved the same, under oath, through affixing my signature.”
(Emphasis added.) Willett also declared that (1) the earlier affidavit
was based on information provided by the District and Matise,
“combined with [Willett’s] own personal observations”; (2) Willett’s
“statement in the affidavit regarding vacant agricultural tracts [i.e.,
Murphy Creek’s property] being the cause of [prairie dog and weed]
problems was not [his] personal opinion,” and he “only signed off on
16 it because it was represented to [him] that the tracts were the
cause”; and (3) Willett “never wanted to be dragged into the
District’s fight against [Murphy Creek].”4
¶ 35 Willett’s declaration, accepted as true, reveals that he
previously provided statements under oath to the District and
Matise that supported the District’s fees on Murphy Creek’s
property. We do not see how this declaration could show that
Matise engaged in fraud by recommending and defending those
fees. While the District’s attorneys might have drafted the affidavit,
Willett attested to its truth under penalty of perjury after he
“reviewed the contents and approved the same.”
¶ 36 Exhibit B is an order reflecting the district court’s findings of
fact and conclusions of law in the earlier litigation. Murphy Creek
argues that this order shows that Matise knew the District’s
security budget was only $60,000 annually and that Murphy
Creek’s fair share was about $9,000 to $12,000 annually. Yet,
according to Murphy Creek, Matise recommended services fees
4 Murphy Creek sued Willett in this case. Murphy Creek voluntarily dismissed Willett as a defendant shortly before he signed the unsworn declaration that is Exhibit A.
17 charging over $144,000 for security costs. Exhibit B, however, does
not address Matise’s knowledge about this topic. It merely
describes trial testimony from the District’s security personnel and
the court’s related findings.
¶ 37 Exhibit C is a collection of four pages excerpted from what
appears to be the District’s response to a summary judgment
motion in an unnamed case. On appeal, Murphy Creek asserts that
those pages are from “Matise’s legal briefs from February 2020” and
they reveal his knowledge that Murphy Creek’s property is zoned as
“planned development,” contrary to his claim that he learned about
this zoning classification at “the August 2020 trial.” But the pages
are undated and unsigned. (Murphy Creek provided neither a cover
page nor a signature page for the document.) Thus, on their face,
those stray pages do not reveal who wrote the statements or when
they were written. And recall that we do not accept Murphy Creek’s
allegations as true at this stage. Hence, those pages do not support
Murphy Creek’s likelihood of success on its claims.
¶ 38 Exhibit D is an email from Matise to Murphy Creek’s counsel
following the trial over the 2018 Resolution. Murphy Creek argues
that this message shows that Matise misrepresented the District’s
18 intent “for a proposed fee that would eventually be part of the 2021
Resolution.” But the email does not reveal such a
misrepresentation; it simply describes the District’s planned fees
and the justification for the fees. While Murphy Creek characterizes
the email as “a form of extortion (couched as a settlement offer)”
because Matise suggested that the District might drop its appeal of
the earlier judgment if Murphy Creek agreed to pay the new fees,
Murphy Creek did not bring an extortion claim. At any rate, this
run-of-the-mill settlement offer would hardly support such a claim.
¶ 39 Exhibit E is the District’s appellate brief to this court, in which
Matise represented the District, submitted in the earlier appeal of
the district court’s judgment. In the appeal at issue here, Murphy
Creek says Matise admitted in that earlier brief that some fees were
meant to relate to services provided to Murphy Creek and a
different fee (the “agricultural fee”) “had nothing to do with service
costs and was instead intended to discourage a nuisance.” Yet, in
its response to Matise’s special motion to dismiss, Murphy Creek
submitted no evidence (as opposed to allegations) indicating that
Matise himself had ever argued that the fees at issue had different
purposes. In any event, according to the district court’s
19 conclusions in the earlier litigation (Exhibit B), the agricultural fee
did not apply to Murphy Creek’s property.
¶ 40 For the foregoing reasons, we conclude that these five exhibits
do little to establish a reasonable likelihood that Murphy Creek will
prevail on its claims.
¶ 41 Finally, we acknowledge Murphy Creek’s argument that
Matise’s affidavit itself supports Murphy Creek’s claims. Assuming
for the sake of analysis that we can consider Matise’s affidavit for
purposes apart from assessing whether it defeats Murphy Creek’s
claim as a matter of law, we are not persuaded. Murphy Creek’s
argument is conclusory, simply asserting that the “affidavit is
actually evidence of the fraud, as it includes some of the same
misrepresentations that [Matise] used to commit the fraud in the
first instance.” See Woodbridge Condo. Ass’n v. Lo Viento Blanco,
LLC, 2020 COA 34, ¶ 41, n.12 (“We don’t consider undeveloped and
unsupported arguments.”), aff’d, 2021 CO 56. Murphy Creek’s
argument is also circular because it asks us to first accept that
Matise’s earlier statements were false in order to then conclude that
his repetition of those statements in the affidavit shows fraud.
20 ¶ 42 To summarize, Murphy Creek presented a paucity of evidence
to support its claims, preferring instead to rely on its allegations in
the complaint. As a result, it failed to meet its burden to produce
evidence showing a reasonable likelihood that it will prevail on its
fraud, conspiracy, and § 1983 claims against Matise. Although the
district court’s ruling did not rest on the inadequacy of Murphy
Creek’s evidentiary presentation, “we may affirm the [district]
court’s ruling based on any grounds that are supported by the
record.” Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d
402, 406 (Colo. App. 2004). Therefore, we conclude that the court
properly granted Matise’s special motion to dismiss the claims
against him.5
III. Attorney Fees and Costs
¶ 43 Matise requests an award of attorney fees and costs incurred
on appeal under section 13-20-1101(4)(a) (“[A] prevailing defendant
on a special motion to dismiss is entitled to recover the defendant’s
attorney fees and costs.”). We grant his request and remand for the
district court to determine and award the amount of reasonable
5 In light of our conclusion, we need not resolve the parties’ dispute
about whether the litigation privilege applies to Matise’s conduct.
21 attorney fees and costs that Matise incurred on appeal. See C.A.R.
39.1; Rosenblum, ¶¶ 60-64.
IV. Conclusion
¶ 44 The order is affirmed, and the case is remanded with
directions to determine and award the amount of reasonable
attorney fees and costs that Matise incurred on appeal.
JUDGE GOMEZ and JUDGE RICHMAN concur.