NGC v. Marbella Ventures

• Court: Colorado Court of Appeals
• Decided: October 16, 2025
• Docket: 23CA1849
• Status: Unpublished

Opinion

23CA1849 NGC v Marbella Ventures 10-16-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1849 Adams County District Court No. 20CV30010 Honorable Teri L. Vasquez, Judge

NGC Development, LLC, a Florida limited liability company,

Plaintiff-Appellant,

v.

Marbella Ventures, LLC, MarQuest, LLC, and Charles Santaularia,

Defendants-Appellees.

ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE HARRIS Brown and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 16, 2025

Davis Graham & Stubbs, LLP, Brandee L. Caswell, Denver, Colorado, for Plaintiff-Appellant

Foster Graham Milstein & Calisher, LLP, R. Livingston Keithley, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, NGC Development, LLC (NGC), appeals the trial

court’s order awarding attorney fees to one of the defendants,

Marbella Ventures, LLC (Marbella). We affirm the order and

remand for further proceedings.

I. Background

¶2 NGC acquired the fifteen-acre property that is the subject of

this litigation in 2010. For nearly a decade, NGC failed to pay the

real estate taxes on the property, ultimately accruing a tax debt of

over $600,000. In August 2018, the taxing authority notified NGC

that if the delinquent taxes were not paid by November 29, NGC

would lose title to the property.

¶3 On November 29, Russell Mills, acting as NGC’s manager,

struck a deal with defendant Charles Santaularia, a real estate

investor. Mills agreed to transfer the property to Marbella, a

company Santaularia controlled, and, in exchange, Santaularia

agreed to pay the past due taxes by the deadline and to allow NGC

to repurchase the property at a steep premium.

¶4 Though time was of the essence, Santaularia refused to make

any payment to the taxing authority until he obtained an executed

written contract from NGC. Santaularia later testified that he filled

1 out two form purchase and sale contracts and reviewed them to

ensure they contained the “correct terms that [the parties] agreed

upon.” One form contract documented the parties’ agreement to

transfer the property to Marbella by warranty deed in exchange for

$605,000 from Santaularia, and the other documented the

agreement to allow NGC to buy back the property within ninety

days for $1.5 million (together, the Agreement). Mills (on behalf of

NGC) and Santaularia (on behalf of Marbella) initialed each page of

the Agreement.

¶5 The Agreement included the following attorney fees provision:

¶6 LEGAL FEES, COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of any arbitration or litigation relating to this Contract, prior to or after Closing Date, the arbitrator or court must award to the prevailing party all reasonable costs and expenses, including attorney fees, legal fees and expenses.

¶7 Santaularia paid the delinquent taxes on November 29,

and Mills executed a quitclaim deed conveying the property to

Marbella. (A second quitclaim deed was issued several months later

to correct the legal description in the original deed.)

2 ¶8 Despite several extensions of the buy-back deadline, NGC

never exercised its right to repurchase the property. In June 2019,

the property was transferred to defendant MarQuest, LLC, another

entity controlled by Santaularia, and then sold to Westminster

Station Northgate, LLC (WSN) for $3.25 million.

¶9 NGC later sued Santaularia, his two entities, and WSN,1

asserting quiet title and unjust enrichment claims. NGC’s primary

theory at the seven-day bench trial was that Mills lacked authority

to sign the deed conveying the property to Marbella and, as a result,

the deed was void or voidable.

¶ 10 The trial court entered judgment in favor of the defendants on

both claims. As relevant here, the trial court’s fifty-six-page final

order (the merits judgment) included factual findings that

• the “purchase and sale contracts confirm[ed] [the parties’]

agreement” for NGC’s sale of the property to Marbella in

exchange for Santaularia’s payment of the taxes and a buy-

back provision;

1 WSN was a defendant in the trial court but was dismissed from

the appeal by stipulation of the parties.

3 • Santaularia “did not pay the outstanding taxes until he

received the fully signed and executed purchase contract from

NGC”; and

• “NGC and Marbella . . . fully executed the contract . . .

whereby NGC agreed to convey the [p]roperty to Marbella.”

¶ 11 The court also determined that “any defects in the [original]

deed to Marbella [did not] render the deed a forgery or fraudulent

deed” because the Agreement expressed the parties’ intent to convey

title to the property to Marbella.

¶ 12 After prevailing at trial, Marbella moved for attorney fees

under the Agreement’s fee-shifting provision. NGC objected on the

ground that the Agreement was unenforceable. Specifically, NGC

contended that, contrary to the trial court’s factual findings, the

Agreement did “not document” the parties’ bargain but was instead

a “sham” contract that neither party intended to perform and

amounted to a “usurious loan disguised as a real estate

transaction.”

¶ 13 Meanwhile, NGC appealed the trial court’s merits judgment.

In April 2023, more than four months after it objected to Marbella’s

4 attorney fee request, NGC filed its opening brief on appeal.2 While

NGC argued that the Agreement was contrary to public policy, it did

not challenge the trial court’s factual finding that the Agreement

documented Mills and Santaularia’s deal concerning the sale of the

property.3 A division of this court rejected NGC’s arguments on

appeal, affirmed the merits judgment, and awarded Marbella its

appellate attorney fees under the Agreement. See NGC Dev., LLC v.

Westminster Station Northgate, LLC, (Colo. App. No. 22CA1692, Dec.

28, 2023) (not published pursuant to C.A.R. 35(e)).

¶ 14 While the appeal was pending, the trial court granted

Marbella’s motion for attorney fees. It concluded that NGC’s “late

hour” attack on the Agreement’s validity constituted “a new theory

of interpretation of the Agreement” that could “not defeat an award

2 We take judicial notice of the filings in the related appeal under

CRE 201(b). See Schnelle v. Cantafio, 2024 COA 17, ¶ 2 n.1, aff’d, 2025 CO 39. 3 Indeed, in its “factual background,” NGC acknowledged that, after

the parties came to an agreement, “Santaularia prepared and Mills executed three documents: (1) a quitclaim deed from NGC to Marbella; (2) an agreement for NGC to sell the [p]roperty for $605,000; and (3) an agreement for NGC to repurchase it 60 [sic] days later for $1.5 million,” and that “Santaularia paid the property taxes after receiving a signed contract for NGC to sell the [p]roperty.”

5 of attorney fees.” After adjusting the lodestar amount for some

duplication by the attorneys, the court awarded Marbella

approximately $467,000 in fees.

II. NGC’s Challenge to the Attorney Fee Award4

¶ 15 NGC argues that the trial court erred in awarding attorney fees

because (1) the Agreement did not document the parties’ actual

bargain, so the fee-shifting provision does not apply; (2) even if the

Agreement documented the parties’ bargain, the Agreement is

unenforceable as a matter of law; and (3) even if the Agreement is

enforceable and the fee-shifting provision applies, Marbella is not

entitled to the amount of attorney fees awarded. We conclude that

the first and second arguments are foreclosed by the trial court’s

unchallenged factual findings and the third argument fails on the

merits.

A. Standard of Review

¶ 16 We review a trial court’s decision whether to award attorney

fees for an abuse of discretion. S. Colo. Orthopaedic Clinic Sports

4 NGC also challenged the trial court’s cost award, but only to the

extent the merits judgment was reversed on appeal. Because the merits judgment was affirmed by the prior division, and no petition for certiorari was filed, we need not address this issue.

6 Med. & Arthritis Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶ 8. A

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair or is based on a misapplication of the law.

Front Range Res., LLC v. Colo. Ground Water Comm’n, 2018 CO 25,

¶ 15. “Accordingly, a trial court’s determination of a reasonable

attorney fee award will generally not be disturbed on review unless

it is patently erroneous and unsupported by the evidence.”

Planning Partners Int’l, LLC v. QED, Inc., 2013 CO 43, ¶ 12.

B. The Parties’ Bargain

¶ 17 NGC contends that the parties entered into “two separate and

distinct agreements” — “one oral and one written.” According to

NGC, the parties neither intended to nor did perform under the

written agreement (i.e., the Agreement), rendering the Agreement a

“sham.” Therefore, NGC says, the Agreement’s fee-shifting

provision does not apply.

¶ 18 NGC acknowledges, though, that the trial court made a

contrary factual finding: that Santaularia and Mills “executed

purchase and sale contracts confirming [their] agreement.” NGC

now argues that the court’s finding is clearly erroneous, but it did

not challenge the finding in its prior appeal, even though, by that

7 time, NGC had objected to Marbella’s fee request, in part on the

ground that the Agreement did not memorialize the parties’ bargain.

NGC cannot collaterally attack the trial court’s factual finding in

this separate appeal. See, e.g., Lake Durango Water Co. v. Pub.

Utils. Comm’n, 67 P.3d 12, 21-22 (Colo. 2003) (party could not

collaterally attack underlying judgment through an appeal of an

attorney fee award); Brennan v. Grover, 404 P.2d 544, 546 (Colo.

1965) (“A losing party cannot re-litigate the issue of title to property

previously decided against [it]” through a collateral attack on the

judgment.); Iowa Home Mut. Cas. Co. v. Mussett, 1959 OK 143, ¶ 13

(in an action by employer to recover attorney fees based on the

insurance company’s failure to defend in a workers’ compensation

case, the insurance company could not collaterally attack the

administrative commission’s earlier factual finding that an

insurance contract existed between the parties, as that finding was

not appealed).

¶ 19 But even if NGC could collaterally attack the merits

judgment’s factual findings, it would have to show that the findings

were clearly erroneous. Winston v. Polis, 2021 COA 90, ¶ 10 (A trial

court’s factual findings are binding on appeal “unless so clearly

8 erroneous as to find no support in the record.”). And NGC cannot

make this showing. The trial court’s finding that the parties’

bargain was documented in the Agreement is amply supported by

the record, including by Santaularia’s testimony to that effect.

¶ 20 As a result, any arguments premised on the theory that the

Agreement did not express the parties’ bargain are necessarily

foreclosed. This means we reject NGC’s argument that the parties’

entered into “two distinct contracts: one oral and one written”; the

trial court “enforced the oral agreement, not the written contract”;

and because only the “written” contract contained the fee-shifting

provision, the provision did not apply and the court erred by

awarding attorney fees based on it.

¶ 21 For the same reason, we reject the argument that because the

“written” contract did not express the parties’ bargain and was

never intended to be performed, it amounted to an unenforceable

“sham” contract, under which fees could not be awarded.

¶ 22 NGC’s waiver argument is likewise foreclosed by the court’s

binding factual findings. According to NGC, only the oral

agreement was presented to and enforced by the court. Therefore,

it argues, by not “pleading any claim or defense based on the

9 written contract,” Marbella waived its right to enforce the fee-

shifting provision. That argument assumes two separate contracts,

in contradiction to the court’s finding.

C. Enforceability of the Agreement

¶ 23 NGC next contends that regardless of whether the Agreement

represents the parties’ bargain, it is unenforceable as a matter of

law because (1) the Agreement lacked consideration, and (2) the

Agreement was a loan disguised as a conveyance.

1. Lack of Consideration

¶ 24 As we understand the first argument, NGC now claims that a

checked box in the Agreement required NGC, as well as Santaularia,

to pay the past due property taxes, effectively canceling out

Marbella’s $605,000 in consideration.

¶ 25 But again, the trial court found otherwise. The court

determined that the Agreement, which reflected the parties’ bargain,

called for Santaularia to “pay off the taxes for NGC” (emphasis

added) in exchange for a deed to the property. That determination

is supported by the testimony of NGC’s own expert. The expert

testified that the initial purchase and sale contract represented the

“agreement for Marbella to buy [the property] from NGC” for “the

10 $605,000 to pay the taxes.” No witness testified, and NGC never

argued at trial or in the prior appeal, that under the Agreement,

NGC was obligated to pay the property taxes.

¶ 26 Regardless of whether the trial court’s determination

represents an interpretation of the contract or a factual finding, it

was unchallenged at trial and on appeal, so we may not revisit it in

this collateral proceeding. See Lake Durango Water Co., 67 P.3d at

21-22.

2. Sale Versus Loan

¶ 27 NGC also contends that the transaction described in the

Agreement is a loan disguised as a conveyance — in other words,

that Marbella was a lender, not a buyer. This argument, too, is

foreclosed by the trial court’s findings and the prior division’s

holding.

¶ 28 In its answer and throughout trial, Marbella asserted that

regardless of whether Mills had authority to execute the Agreement

and deeds, it was a bona fide purchaser of the property. The trial

court agreed, finding that Santaularia gave sufficient value for the

property, acted in good faith, and lacked notice of any title defect.

11 See Strekal v. Espe, 114 P.3d 67, 74 (Colo. App. 2004) (defining

bona fide purchaser).

¶ 29 On appeal, NGC challenged the trial court’s bona fide

purchaser determination, but not on the ground that the Agreement

reflected a loan transaction, and that Marbella was therefore merely

a lender and not a purchaser at all. Rather, it argued that Marbella

did not pay value for the property or act in good faith, and that

Santaularia had inquiry notice of Mills’s lack of authority. The prior

division rejected that argument and affirmed the trial court’s

determination that Marbella was a bona fide purchaser. See NGC,

No. 22CA1692, slip op. at ¶¶ 48-63.

¶ 30 If Marbella is a bona fide purchaser, it necessarily follows that

the Agreement and deeds conveyed the property rather than

effectuated a short-term loan.

¶ 31 We reiterate that at the time of the prior appeal, NGC had

already objected to Marbella’s request for attorney fees under the

Agreement. One of its objections was that the Agreement and the

deeds reflected “an unlawful usurious loan disguised as a real

estate transaction.” Notwithstanding this objection, it failed to

12 challenge the trial court’s contradictory bona fide purchaser finding

on that basis.

¶ 32 We are in no position in this attorney fee appeal to unwind the

trial court’s merits judgment and the prior division’s affirmance.

See Lake Durango Water Co., 67 P.3d at 21-22.

D. Amount of Fees

¶ 33 Marbella was the only defendant who was a party to the

Agreement. Thus, only Marbella was entitled to recover attorney

fees under the Agreement’s fee-shifting provision. See Harwig v.

Downey, 56 P.3d 1220, 1221-22 (Colo. App. 2002) (only parties to

the contract and third-party beneficiaries may enforce a fee-shifting

provision).

¶ 34 Marbella and Santaularia were jointly represented by two

lawyers from different law firms. The trial court accepted the

lawyers’ argument that apportionment of fees between Marbella and

Santaularia was unwarranted because all of the fees would have

been incurred even if Marbella had been the sole defendant.

¶ 35 On appeal, NGC says that the court erred by awarding

$210,000 in fees to one lawyer, Elliot Fladen, because those fees

“were not Marbella’s legal responsibility to pay.” According to NGC,

13 Fladen’s engagement letter obligated only Santaularia, not Marbella,

to pay Fladen’s fees.

¶ 36 Fladen’s engagement letter used the term “You” to refer to

Santaularia, Marbella, and MarQuest. Under the terms of the

letter, Santaularia, Marbella, and MarQuest (“You”) were

responsible for payment of all fees, expenses, and costs.

¶ 37 To show otherwise, NGC relies exclusively on paragraph 20 of

Fladen’s engagement letter. That paragraph requires Santaularia to

“personally” pay “all [Fladen’s] bills that arise under this agreement

that have not otherwise been paid.” We agree with Marbella that

this provision does not cancel any client’s obligation to pay Fladen’s

fees; it serves as Santaularia’s personal guaranty to cover the fees if

no other client pays them.

III. Marbella’s Request for Appellate Attorney Fees

¶ 38 Marbella asserts that the Agreement’s fee-shifting provision

entitles it to an award of its reasonable appellate attorney fees. We

agree.

¶ 39 “When a contract contains a fee-shifting provision and the

prevailing party requests appellate attorney fees and explains the

legal and factual basis for the award, we may award appellate

14 attorney fees.” Veolia Water Techs., Inc. v. Antero Treatment LLC,

2024 COA 126, ¶ 155 (cert. granted Sept. 2, 2025). And under

C.A.R. 39(a)(2), if a judgment is affirmed on appeal, “costs are taxed

against the appellant.”

¶ 40 Marbella is the prevailing party in this appeal. NGC did not

object to an award of appellate attorney fees, and we see no basis to

deny the award. Accordingly, we grant Marbella’s request and

exercise our discretion under C.A.R. 39.1 to remand the case to the

trial court to determine Marbella’s reasonable attorney fees and

costs incurred on appeal.

IV. Disposition

¶ 41 The order is affirmed, and the case is remanded for a

determination of Marbella’s reasonable appellate attorney fees.

JUDGE BROWN and JUDGE LUM concur.