24CA2022 Rask Living Trust v Rydz 01-08-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2022 La Plata County District Court No. 23CV30010 Honorable Kim S. Shropshire, Judge Honorable Douglas S. Walker, Judge
Rask Living Trust, and its trustee, Ronald A. Keller,
Plaintiff-Appellee,
v.
Mark Rydz,
Defendant-Appellant.
JUDGMENT AND ORDERS AFFIRMED
Division VI Opinion by JUDGE WELLING Gomez and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 8, 2026
Dugan & Associates, P.C., Thomas P. Dugan, Durango, Colorado, for Plaintiff- Appellee
Mark Rydz, Pro Se ¶1 Plaintiffs, Rask Living Trust (Trust) and its sole trustee,
Ronald A. Keller, brought a quiet title claim against defendant,
Mark Rydz, to clarify their property rights on an access easement
and establish an easement by estoppel. Rydz appeals the trial
court’s partial summary judgment ruling in favor of the plaintiffs on
his counterclaim, the judgment on the easements following trial,
and the trial court’s orders awarding attorney fees. We affirm.
I. Background
¶2 The Trust is an Arizona revocable living trust that holds title to
real property located on Ute Canyon Road in Durango, Colorado —
legally described as Lot 1, Booker Minor Exemption Subdivision
(Booker subdivision). Rydz holds title to a different parcel of real
property also located on Ute Canyon Road — legally described as
Lot 2 of the Hotter Minor Exemption Subdivision (Hotter
subdivision). Rydz acquired his property in 2013. The Booker
subdivision and Hotter subdivision share a border.
¶3 In 1992, when the Booker and Hotter subdivisions were under
common ownership, the owner of the properties at the time
recorded a sixty-foot-wide access easement in favor of the Booker
subdivision, as the dominant estate, over a swath of land on the
1 Hotter subdivision, as the servient estate. We will refer to this as
the access easement. The plan was to build a joint driveway on the
easement. But due to terrain and grade constraints, a portion of
the driveway was constructed outside of the recorded easement,
further encroaching on the Hotter subdivision. This created a
segment of the access easement that didn’t have a driveway (the not
used segment) and a segment outside of the access easement that
had a driveway (the actually used segment). Construction of this
driveway was completed sometime in the 1990s.
¶4 A separate utility easement exists within the not used segment
of the access easement. This utility easement belongs to La Plata
Electric Association, Inc. (LPEA), as the dominant estate, with the
Hotter subdivision as the servient estate. The purpose of the utility
easement is to construct, operate, maintain, and replace utility
lines on the land. The utility lines within the utility easement are
owned and managed by LPEA — not the plaintiffs.
¶5 After conflicts between the parties over the use of the access
easement — and the actually used segment — the Trust filed this
quiet title action. The lawsuit aimed to (1) clarify property rights
with respect to the already established access easement and
2 (2) establish property rights through a new easement by estoppel
with respect to the actually used segment.
¶6 After Rydz filed a motion to dismiss, the complaint was
amended to include the Trust’s trustee, Keller, as a plaintiff. Rydz
later filed counterclaims asking the court to limit the usage of the
access easement, to order the plaintiffs to move the entirety of the
driveway into the parameters of the recorded access easement, and
to order the plaintiffs to move the LPEA utility lines, among other
things. In support of his requested relief, Rydz argued that (1) the
plaintiffs improperly used their residential property for commercial
purposes — using it as a short-term vacation rental (STVR) — in
violation of a Booker subdivision restrictive covenant; and (2) the
LPEA utility easement is too close to his house and should be
relocated.
A. Pretrial Motions
¶7 Pretrial procedures were presided over by Judge Shropshire.
Among the flurry of pretrial motions, the plaintiffs filed two motions
for partial summary judgment.
¶8 In their first motion for partial summary judgment, the
plaintiffs argued that Rydz didn’t have standing to assert his STVR
3 counterclaim because the Hotter subdivision and Booker
subdivision are subject to different covenants. The plaintiffs further
argued that the use of the home as an STVR isn’t an improper
commercial use. Rydz filed a cross-motion for partial summary
judgment, arguing that the trial court should rule, as a matter of
law, that the use of the home as an STVR was barred by the Booker
subdivision covenant because it was an improper commercial use.
¶9 In their second motion for partial summary judgment, the
plaintiffs asked the trial court to rule that Rydz’s LPEA utility
easement argument failed to state a legally cognizable claim. The
plaintiffs argued that because Rydz took title of the Hotter
subdivision with actual and/or constructive knowledge of the utility
easement, he is financially responsible for any request to move the
utility easement. The plaintiffs further argued that any such
request should be directed to the dominant estate of the utility
easement (i.e., LPEA), not the plaintiffs.
¶ 10 Judge Shropshire granted both of the plaintiffs’ motions for
partial summary judgment. Thus, Rydz’s counterclaims related to
STVRs and the utility easement were dismissed and not to be
considered at trial.
4 ¶ 11 For the plaintiffs’ motion for partial summary judgment on the
STVR counterclaim, Judge Shropshire determined that because the
two subdivisions had two separate controlling covenants, Rydz
didn’t have a legally protected interest — and thus he lacked
standing to enforce the Booker subdivision covenant. For the
plaintiffs’ motion for partial summary judgment concerning the
utility easement counterclaim, Judge Shropshire determined that
because the plaintiffs couldn’t modify the placement of the
easement, Rydz couldn’t prevail on his utility easement
counterclaim as a matter of law.
¶ 12 In addition to his cross-motion for summary judgment, Rydz
also filed a motion for partial summary judgment regarding
driveway routing, a motion for summary judgment in support of his
counterclaims (global motion for summary judgment), and three
motions in limine. Judge Shropshire granted Rydz’s motion for
partial summary judgment regarding driveway routing. Judge
Shropshire denied Rydz’s global motion for summary judgment,
finding that it was duplicative of a few of Rydz’s previous filings.
5 B. Attorney Fees
¶ 13 The plaintiffs requested attorney fees on several of Rydz’s
pretrial motions. Judge Shropshire denied the plaintiffs’ initial
wave of requests for attorney fees, notwithstanding that the motions
lacked merit, finding that Rydz filed the subject motions in good
faith. Despite denying attorney fees on these motions, Judge
Shropshire warned Rydz that as a pro se litigant, he was still bound
by the same rules as licensed attorneys.
¶ 14 Later, Judge Shropshire granted the plaintiffs’ request for an
award of attorney fees incurred in defending against five different
motions filed by Rydz. Judge Shropshire issued the award under
section 13-17-102, C.R.S. 2025. Section 13-17-102(6) allows an
award of attorney fees against a pro se party where the court makes
findings that the pro se party “clearly knew or reasonably should
have known that the party’s action or defense . . . was substantially
frivolous, substantially groundless, or substantially vexatious.”
Judge Shropshire also granted the plaintiffs’ request for attorney
fees incurred by the plaintiffs in preparing for the attorney fee
hearing. In granting this request, Judge Shropshire found that
6 despite being warned of his duty to abide by court rules, Rydz
continued to file duplicative and groundless motions.
C. Trial
¶ 15 Trial was set for a two-day court trial in June 2024. At the
pretrial conference, Judge Shropshire advised the parties that a
“visiting judge” would preside over the trial. In June 2024, Judge
Walker presided over the two-day trial, which included a site visit to
see the access easement.
¶ 16 Following trial, Judge Walker issued a written order setting
forth his findings of fact and conclusions of law. In that order,
Judge Walker found that an easement by estoppel existed for the
plaintiffs’ driveway on the actually used segment. Judge Walker
also vacated the not used segment of the access easement in its
entirety. Judge Walker’s order didn’t mention the utility easement.
Judge Walker ordered the plaintiffs to submit a proposed order to
record a description of the easements — including the easement by
estoppel addition of the actually used segment and the vacatur of
the not used segment.
7 D. Post-Trial
¶ 17 After trial, Judge Shropshire resumed presiding over the case,
including addressing post-trial matters.
¶ 18 In line with Judge Walker’s order, the plaintiffs submitted a
motion for approval of a proposed order, along with the proposed
order. In their motion and proposed order, the plaintiffs requested
to modify Judge Walker’s order by changing the point where the
driveway splits, moving where the address signs are placed, and
moving Rydz’s “no trespass” sign. Rydz objected to the plaintiffs’
motion and proposed order, arguing that it significantly changed
the effect of Judge Walker’s order.
¶ 19 Following briefing by the parties, Judge Shropshire issued two
orders regarding the proposed order. First, Judge Shropshire
approved the plaintiffs’ proposed order but included some
amendments. Judge Shropshire refused to change the point of the
driveway split or move where the address signs were placed, noting
that she wouldn’t “issue an order contrary to express provisions of
[Judge Walker’s] order following trial.” Judge Shropshire didn’t find
a reference to the “no trespassing” sign in Judge Walker’s order. To
“not conflict with a prior ruling,” Judge Shropshire ordered the “no
8 trespassing” sign to be placed where Judge Walker ordered the
address signs be placed.
¶ 20 Second, Judge Shropshire issued an order regarding the
recording of the easement. The order reiterated that the actually
used segment was now part of the access easement — thus
establishing an easement by estoppel. The order further clarified
that the vacated portion of the access easement — the not used
segment — didn’t vacate LPEA’s utility easement located in that
same area.
II. Analysis
¶ 21 On appeal, Rydz contends that (1) the trial court erred when it
entered partial summary judgment in favor of the plaintiffs
regarding the use of their property as an STVR; (2) Judge
Shropshire didn’t have authority to “overrule” Judge Walker, and,
therefore, her order regarding the easements should be vacated;
and (3) the award of attorney fees was improper. We reject all three
contentions.
A. Partial Summary Judgment
¶ 22 Rydz contends that the trial court erroneously granted the
plaintiffs’ motion for partial summary judgment regarding the
9 plaintiffs’ use of their property as an STVR. Because Rydz lacks
standing to bring this claim, we disagree and conclude that the trial
court’s grant of partial summary judgment was proper.
1. Standard of Review and Applicable Law
¶ 23 We review a trial court’s ruling on summary judgment de novo,
“recognizing that summary judgment is appropriate only where
there are no disputed issues of material fact and the moving party
is entitled to judgment as a matter of law.” Beeftu v. Creekside
Ventures LLC, 37 P.3d 526, 528 (Colo. App. 2001).
¶ 24 “Standing is a jurisdictional prerequisite that can be raised at
any time during the proceedings; if there is no standing, the court
must dismiss the case.” People v. Shank, 2018 CO 51, ¶ 9. There
is a two-prong test for standing: Did the party suffer (1) an injury in
fact (2) to a legally protected interest. Ainscough v. Owens, 90 P.3d
851, 855 (Colo. 2004). For a legally protected interest, the question
is whether the party “has a claim for relief under the constitution,
the common law, a statute, or a rule or regulation.” Id. at 856.
¶ 25 In order to have a legally protected interest from a covenant,
the party “must be a resident of a subdivision to which a restrictive
covenant applies in order to enforce the covenant against other
10 residents of that subdivision.” Conestoga Pines Homeowners’ Ass’n
v. Black, 689 P.2d 1176, 1177 (Colo. App. 1984).
2. Application
¶ 26 On appeal, Rydz argues that he has standing to assert his
claim because he “raised plentiful allegations of harm in his
previous pleadings.” This, however, only addresses the first prong
of the test for standing. Rydz never argues that he has a legally
protected interest under the Booker subdivision’s restrictive
covenant — the second prong of the test for standing.
¶ 27 Rydz brings his counterclaim, and subsequent request for
summary judgment on the STVR issue, under a restrictive covenant
of the Booker subdivision. Without being a resident of the Booker
subdivision himself, Rydz can’t enforce the Booker subdivision’s
restrictive covenant. Thus, he lacks a legally protected interest to
bring a claim under the Booker subdivision’s covenant, and
therefore he lacks standing.
¶ 28 We conclude that because Rydz had no standing to bring a
claim about STVRs in the Booker subdivision, the trial court didn’t
err by granting the plaintiffs’ motion for summary judgment
regarding STVRs.
11 B. Successor Judge Orders
¶ 29 Rydz next contends that Judge Shropshire — as the successor
judge — didn’t have authority to issue an order “overruling” Judge
Walker’s order following trial. Rydz argues that Judge Shropshire
erroneously modified Judge Walker’s order by changing a
completely vacated section of the easement into a partially vacated
section. We conclude that Rydz failed to preserve the general
argument about the successor judge’s authority, and thus we won’t
address that contention. As for his partially vacated easement
argument, we disagree.
1. Preservation
¶ 30 While we don’t require parties to use “talismanic language” to
preserve issues on appeal, trial courts must be afforded an
“adequate opportunity to make findings of fact and conclusions of
law on any issue before we will review it.” People v. Melendez, 102
P.3d 315, 322 (Colo. 2004). “To properly preserve an issue for
appeal, a party’s objection or request must be specific enough to
(1) draw the court’s attention to the asserted error; (2) provide the
court with a meaningful opportunity to focus on the issue; and
12 (3) prevent or correct the error.” People v. Anderson, 2020 COA 56,
¶ 11 (citations omitted).
¶ 31 Rydz contends that he preserved his argument that Judge
Shropshire didn’t have authority to overrule Judge Walker’s order
in his response to the plaintiffs’ proposed order following trial.
Rydz, however, never questioned Judge Shropshire’s authority in
this response. To the contrary, Rydz asked Judge Shropshire to
exercise her authority to reconsider certain portions of Judge
Walker’s order following trial.
¶ 32 Rydz doesn’t identify — and we can’t find — anywhere in the
record where Rydz questioned Judge Shropshire’s authority or
otherwise raised the issue he advances on appeal.1 We conclude
Rydz failed to preserve this argument, so we won’t address it.
¶ 33 Beyond his general argument on appeal that Judge Shropshire
didn’t have authority, Rydz also argues that the utility easement
1 Rydz’s argument doesn’t fall into an exception to the general rule
of preservation either. Challenges to subject matter jurisdiction can be raised for the first time on appeal. Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo. 1986). Rydz, however, didn’t argue that Judge Shropshire lacked subject matter jurisdiction. Indeed, such an argument would have been unavailing because “[c]ourts, not judges, are vested with jurisdiction.” People v. Jachnik, 116 P.3d 1276, 1277 (Colo. App. 2005).
13 should have been vacated. Rydz did preserve this issue in the trial
court, so we address it below.
2. Standard of Review
¶ 34 A successor judge’s decision regarding post-trial motions for a
trial they didn’t preside over is reviewed under an abuse of
discretion standard to determine if their actions were manifestly
arbitrary, unreasonable, or unfair. Craig v. Carlson, 161 P.3d 648,
654 (Colo. 2007).
3. Application
¶ 35 Rydz contends that Judge Shropshire improperly “overturned”
Judge Walker’s order by creating another easement. Rydz’s
argument is based on a misunderstanding of the easements and to
whom they belong.
¶ 36 As previously discussed, the not used segment contained two
easements before the initiation of this lawsuit: (1) the plaintiffs’
access easement and (2) LPEA’s utility easement. Because Judge
Shropshire granted the plaintiffs’ motion for partial summary
judgment regarding LPEA’s utility easement, it wasn’t to be
considered at trial. Therefore, when Judge Walker vacated the not
used portion of the access easement in its entirety in his order
14 following trial, he didn’t mention the utility easement. Thus, Judge
Walker’s order didn’t affect the utility easement.
¶ 37 Judge Shropshire’s order approving the plaintiffs’ proposed
order didn’t change any of this. In line with Judge Walker’s order
following trial, Judge Shropshire’s order also vacated the not used
segment of the access easement. Judge Shropshire’s order further
clarified that the utility easement within the not used segment
remained in place. This was also in line with Judge Walker’s order,
even if it wasn’t explicitly stated in Judge Walker’s ruling.
¶ 38 Simply put, Judge Shropshire’s order didn’t overrule Judge
Walker’s order. Instead, her order pointed out that the utility
easement — which wasn’t being adjudicated by the court during
trial — was still valid.
¶ 39 There’s nothing in the record showing that Judge Shropshire
did anything to modify or contravene Judge Walker’s original order
following trial. Accordingly, we conclude that Judge Shropshire’s
clarification on what portions of the not used segment were vacated
and what portions remained intact wasn’t manifestly arbitrary,
unreasonable, or unfair, and thus wasn’t an abuse of discretion.
15 C. Trial Court’s Award of Attorney Fees
¶ 40 Rydz next contends that the trial court erred in its award of
attorney fees against him under section 13-17-102(2) and (6) for five
motions. We disagree.
1. Additional Facts
¶ 41 Because the trial court awarded fees against a pro se party,
our analysis begins with the warnings the trial court gave to Rydz
about adherence to court rules. We then turn to the plaintiffs’
various requests for attorney fees, Rydz’s motions practice that led
to attorney fees, the trial court’s reasoning for the award, the
plaintiffs’ attorney fee affidavits, and Judge Shropshire’s findings
that Rydz clearly knew or reasonably should have known that his
motions were substantially groundless — pursuant to section 13-
17-102(6) — at the attorney fee hearing.
a. Notice of Duty to Adhere to Rules and Denials of Attorney Fees
¶ 42 Citing Cornelius v. River Ridge Ranch Landowners Ass’n, 202
P.3d 564, 572 (Colo. 2009), the trial court warned Rydz several
times that even though he was a pro se party, he was “bound by the
same rules of civil procedure as attorneys licensed to practice law.”
Id. (quoting Negron v. Golder, 111 P.3d 538, 540 (Colo. App. 2004)).
16 In many of their motions, the plaintiffs similarly argued that Rydz
was bound by the rules of civil procedure and evidence despite
being a pro se party. At least three of the trial court’s warnings and
one of the plaintiffs’ admonitions occurred before Rydz filed his first
motion for which the court awarded attorney fees.
¶ 43 As previously discussed, the plaintiffs requested attorney fees
on several of Rydz’s pretrial filings and in many of their own
filings — including the complaint. Twelve of these requests came
before Rydz filed his first motion for which the court awarded
attorney fees. Twice the court denied fees for potentially groundless
motions because it found that even though the motions lacked
merit, they were filed in good faith.
b. Trial Court Findings in Support of Awarding Attorney Fees
¶ 44 Eventually, the trial court did award attorney fees to the
plaintiffs in connection with five of Rydz’s motions. These motions
were: (1) Rydz’s global motion for summary judgment; (2) Rydz’s
motion in limine regarding driveway grade; (3) Rydz’s motion in
limine to strike the plaintiffs’ reply; (4) Rydz’s motion in limine
pertaining to witness testimony; and (5) Rydz’s motion to
17 reconsider. Additionally, the trial court awarded the plaintiffs
attorney fees incurred in preparation for the attorney fee hearing.
¶ 45 For the first two motions, the trial court found that these
motions were duplicative of motions previously filed by Rydz. For
the latter three motions, the trial court found that the arguments in
these motions failed to meet the basic requirements of the rules of
civil procedure or the rules of evidence. We will discuss each, in
turn, below.
i. Duplicative Motions
(1) Global Motion for Summary Judgment
¶ 46 The trial court found Rydz’s global motion for summary
judgment to be a “general re-recitation” of his counterclaims and
duplicative of two individual motions for partial summary judgment.
¶ 47 In his counterclaims, among other arguments, Rydz argued
that (1) there was no evidence of when the driveway was built to
support an implied easement; and (2) the plaintiffs’ use of their
property as an STVR is improper and overly burdens the access
easement. Rydz subsequently filed two motions for partial
summary judgment on these issues. In his September 26, 2023,
motion for partial summary judgment concerning driveway routing,
18 Rydz asked the trial court to rule on the driveway evidence portion
of his counterclaims. In his October 4, 2023, motion for partial
summary judgment regarding STVRs, Rydz asked the trial court to
rule on the STVR portion of his counterclaims.
¶ 48 On October 5, 2023, Rydz filed his global motion for summary
judgment. Rydz argued that the plaintiffs’ response to his
counterclaims was procedurally deficient. He asked the trial court
to strike the plaintiffs’ response to his counterclaims and grant
summary judgment on the entirety of his counterclaims.
¶ 49 The trial court ultimately denied Rydz’s global motion for
summary judgment, determining that Rydz had failed to meet his
burden to establish that there was no issue of triable fact because
his allegations were conclusory and without any legal or
documentary support. In deciding to award attorney fees, the trial
court noted, “While the [trial] [c]ourt has not awarded Plaintiff[s] the
requested attorney fees for the motions it has so far ruled on, the
[trial] [c]ourt finds this motion to be different than [those] separate
motions for summary judgment.” The trial court explained that the
global motion was duplicative of Rydz’s individual motions for
partial summary judgment regarding the driveway and STVRs.
19 Finally, the order ended by reminding Rydz that despite being a pro
se party, he must still follow the rules of civil procedure.
(2) Motion in Limine Regarding Driveway Grade
¶ 50 On October 4, 2023, Rydz filed a motion requesting that the
trial court preclude any evidence or argument about the grade of
the driveway on the plaintiffs’ land. On December 20, 2023, Rydz
filed a motion in limine requesting to bar any evidence related to the
grade of the driveway on the access easement.
¶ 51 The trial court ruled on these motions simultaneously, noting
that they were essentially the same request. The trial court granted
Rydz’s motion to preclude the evidence of driveway grade.
Notwithstanding its ruling, the trial court found it appropriate to
award attorney fees on the motion in limine because it was
duplicative of the already filed motion to preclude.
ii. Motions That Failed to Meet the Basic Requirements of the Rules
(1) “Motion in Limine” to Strike the Plaintiffs’ Reply
¶ 52 Rydz filed yet another “motion in limine,” this time requesting
to strike the plaintiffs’ reply in support of their own motion for
partial summary judgment. Rydz argued that the reply was
20 “extremely lengthy” and thus the plaintiffs were “willfully wasting
the [trial] [c]ourt’s time.” The plaintiffs’ reply in question was ten
pages without counting the case caption, signature block, and
certificate of service.
¶ 53 The trial court found that Rydz’s argument was meritless
because the plaintiffs’ reply conformed to the length requirements of
C.R.C.P. 121, section 1-15, which limits reply briefs to ten pages,
“not including the case caption, signature block, certificate of
service and attachments.” The trial court found that an award of
attorney fees was appropriate because “a quick review of the
guiding rules for motions practice would let the defendant know
that [the] plaintiff[s’] reply was procedurally accurate.”
(2) Motion in Limine Pertaining to Witness Testimony
¶ 54 Rydz’s final motion in limine for which the court awarded
attorney fees argued that several of the plaintiffs’ witnesses should
be barred from testifying at trial. First, he argued that a few lay
witnesses should be barred from testifying at trial because he
disagreed with their anticipated testimony, he questioned their
motivation, and he believed they lacked credibility. Rydz also
argued that the lay witnesses’ testimony was either in conflict with
21 other evidence or already in the record through other documentary
evidence disclosed by the plaintiffs. Rydz further argued that
Keller’s former attorney couldn’t testify because of attorney-client
privilege. Rydz didn’t argue that any of the witnesses were
incompetent to testify or that their testimony was irrelevant,
pursuant to the Colorado Rules of Evidence.
¶ 55 The trial court denied Rydz’s motion, finding that all the
testimony was relevant and all the witnesses were competent
pursuant to CRE 401, 601, and 602. The trial court addressed
Rydz’s arguments, noting that the credibility of the witnesses was
for the trier of fact to decide, not Rydz. The trial court also noted
that just because the plaintiffs disclosed evidence didn’t mean that
evidence was admitted. Finally, the trial court observed that the
attorney-client privilege belonged to Keller, not Rydz, and thus Rydz
couldn’t use that as a basis to limit Keller’s former attorney’s
testimony.
¶ 56 In awarding attorney fees on this motion, the trial court said,
A quick review of the guiding rules of evidence regarding who is competent to testify . . . would have revealed that the witnesses referred in [Rydz’s] motions are appropriate to testify. Further, disagreements with
22 statements made by witnesses or assertions of bias or bad motive are not proper grounds for exclusion. Therefore, pursuant to [the plaintiffs’] request, the [trial] [c]ourt will grant the request for attorney’s fees.
(3) Motion to Reconsider
¶ 57 In Rydz’s motion to reconsider, he argued that the trial court’s
finding that he didn’t have standing to challenge the plaintiffs’ use
of their property as an STVR ignored the use of the access easement
on his land by the STVR guests. Rydz didn’t state the legal
authority for bringing his motion to reconsider. In the motion to
reconsider, Rydz simply reargued that the plaintiffs’ use of their
property as an STVR overburdens the access easement.
¶ 58 The trial court denied Rydz’s motion to reconsider, finding it
untimely and without merit. Despite Rydz’s failure to state what
his legal basis was for reconsideration, the trial court considered it
under every rule that Rydz could have possibly brought the motion
pursuant to. The court observed that if the motion was brought
under C.R.C.P. 59 or C.R.C.P. 121, Rydz had fourteen days to file
his motion to reconsider. Because Rydz filed his motion to
reconsider well beyond the fourteen day deadline, the trial court
23 found that a motion to reconsider under C.R.C.P. 59 or
C.R.C.P. 121 was untimely.
¶ 59 The court next noted that if the motion was brought under
C.R.C.P. 60, although it would have been timely because Rydz filed
the motion within the applicable six-month window permitted
under Rule 60, it still wasn’t a proper Rule 60 motion because Rydz
wasn’t seeking any relief permitted by Rule 60. The trial court
explained the possible grounds for filing a motion to reconsider
under Rule 60(b) were (1) mistake; (2) fraud; (3) the judgment is
void; (4) the judgment has been satisfied, released, or discharged; or
(5) any other reason justifying relief from the judgment.
C.R.C.P. 60(b). The trial court found that Rydz didn’t make any of
these arguments in his motion to reconsider. Therefore, the trial
court found that Rydz’s motion wasn’t proper under Rule 60.
¶ 60 Finding that the motion to reconsider was either untimely or
improper (or both) under the rules, the trial court found that
attorney fees were appropriate. The trial court again noted that
Rydz was bound by the same rules of civil procedure as a licensed
attorney and that he had been warned to familiarize himself with
those rules.
24 c. Attorney Fee Hearing
¶ 61 After the trial court awarded attorney fees, the plaintiffs filed
two affidavits accounting for the attorney fees incurred while
working on responses to the five motions. Upon Rydz’s objection to
the reasonableness of the requested attorney fees, the trial court
ordered the parties to set a hearing on the matter, which was set on
August 13, 2024. Ahead of the attorney fee hearing, the plaintiffs
submitted a third affidavit requesting attorney fees incurred while
preparing for the attorney fee hearing. The total amount of
requested attorney fees was $25,980.2
¶ 62 The affidavits explained the attorneys’ rates and how the work
was distributed on each of the motions for which attorney fees were
found appropriate. Attached to the affidavits were itemized invoices
for the work completed on the motion responses for which attorney
fees were awarded. Any item that wasn’t related to the motion
2 The plaintiffs’ first attorney fee affidavit calculated $10,612.50 in
attorney fees for work on Rydz’s global motion for summary judgment and three motions in limine. The plaintiffs’ second attorney fee affidavit calculated $7,392.50 in attorney fees for work on Rydz’s motion to reconsider. The plaintiffs asserted they incurred $7,975 in attorney fees to prepare for the attorney fee hearing on August 13, 2024.
25 responses for which attorney fees were awarded was redacted with
a black box.
¶ 63 At the outset of the August 13, 2024, hearing, the plaintiffs
called three witnesses — Keller and both of the plaintiffs’ attorneys.
The attorneys testified about their billable rates, the amount of time
spent on Rydz’s motions, and the total amount of fees charged. The
attorneys also testified that despite Rydz not challenging the
reasonableness of the fees, their rates, the time they spent on each
motion, and the measures they took to lower the fees were
reasonable.
¶ 64 Rydz acted as his own and sole witness. Instead of testifying
that the attorney fee rates were unreasonable, Rydz argued that the
award of attorney fees was improper because Judge Walker denied
any award of attorney fees following trial, Rydz didn’t request the
attorney fee hearing so he shouldn’t be responsible for any fees
relating to it, the plaintiffs are responsible for their own attorney
fees under the American Rule, and fees were awarded against him
without warning.
¶ 65 At the close of the hearing, the trial court made factual
findings on Rydz’s knowledge of the possibility of attorney fees being
26 awarded against him. The trial court first noted that Rydz was on
notice of the possibility that fees would be awarded against him
because the plaintiffs had requested attorney fees in almost every
response to Rydz’s motions. The trial court also noted that it had
told Rydz that he was “entitled to look at the rules, get an attorney,
all of the things that [he] could do.” The trial court then found that
despite repeatedly telling Rydz to review the applicable rules, Rydz
still filed motions that didn’t conform to those rules. Considering
all the above, the trial court found that Rydz knew or reasonably
should have known that the motions for which it awarded attorney
fees were substantially groundless or failed to follow simple rules,
stating as follows:
[T]he [c]ourt finds that Mr. Rydz knew or should have reasonably known, and by that I mean letting Mr. Rydz know he’s responsible for understanding the rules, including for instance the time lines for motions to reconsider and then receiving a motion to reconsider or receiving a trial brief, which is in essence a motion to reconsider, is I think support for the argument that he reasonably should have known.
I feel like this [c]ourt, despite what Mr. Rydz says, this [c]ourt is for everyone, regardless of whether you have a law license or not, and the [c]ourt want[s] pro se litigants to succeed, and
27 by succeed I mean get their argument across to the [c]ourt so the [c]ourt can legitimately and substantively address the needs of that party. And everyone has room for improvement, but I feel like I have done my best to make sure that Mr. Rydz knew the procedure and his requirement to know the rules as such.
¶ 66 The trial court then found the attorney fee rate was
reasonable — noting that Rydz didn’t challenge the reasonableness
of the rate. Assessing the reasonableness of the fees themselves,
the trial court noted that it took substantial time to process and
research Rydz’s motions itself. Additionally, the trial court found
that the requested fees only included work related to the specific
motions. Accordingly, the trial court found the plaintiffs’ request of
$25,980 in attorney fees to be warranted and reasonable.
2. Standard of Review and Applicable Law
¶ 67 “Whether a statutory basis for attorney fees exists is a
question of law that we review de novo.” CAW Equities, L.L.C. v.
City of Greenwood Village, 2018 COA 42M, ¶ 38. “We review an
attorney fee award for an abuse of discretion and will not disturb
that award unless it is patently erroneous or unsupported by the
evidence.” Id.
28 ¶ 68 A trial court can award attorney fees against a party if it finds
that the party “lacked substantial justification” in bringing or
defending a civil action. § 13-17-102(2). There are, however,
limitations on that award when it is assessed against a pro se
litigant:
A party who is appearing without an attorney or licensed legal paraprofessional shall not be assessed attorney fees or licensed legal paraprofessional fees unless the court finds that the party clearly knew or reasonably should have known that the party’s action or defense, or any part of the action or defense, was substantially frivolous, substantially groundless, or substantially vexatious . . . .
§ 13-17-102(6).
¶ 69 Additionally, attorney fees incurred in resolving the fee issue
are recoverable. Mau v. E.P.H. Corp., 638 P.2d 777, 781 (Colo.
1981).
¶ 70 The party seeking to recover attorney fees bears the burden of
proving the amount and reasonableness of the fees. Klein v.
Tiburon Dev. LLC, 2017 COA 109, ¶ 30. An affidavit from counsel
with supporting documentation — such as invoices — is generally
sufficient to support an award of attorney fees. Weston v. T & T,
LLC, 271 P.3d 552, 561 (Colo. App. 2011).
29 3. Application
¶ 71 Rydz doesn’t challenge the reasonableness of attorney fees
awarded by the trial court. Instead, Rydz argues that award was
improper because (1) it was in violation of the American Rule
regarding attorney fees; (2) the trial court’s grounds for awarding
attorney fees were insufficient; (3) the trial court failed to give him
notice of the possibility of attorney fees; (4) the plaintiffs’ attorney
fees affidavits were insufficient; and (5) Judge Shropshire didn’t
have authority to award attorney fees. As we have addressed above,
Rydz didn’t preserve his argument that Judge Shropshire didn’t
have authority to make rulings, so we won’t address this argument.
We address his remaining arguments in turn.
a. Statutory Basis
¶ 72 Rydz first contends that the award of attorney fees was in
violation of the American Rule, arguing that the plaintiffs are
responsible for their own attorney fees. Under the American Rule,
“the parties in a lawsuit must bear their own legal expenses, absent
statutory authority, a court rule, or an express contractual provision
to the contrary.” Delluomo v. Cedarblade, 2014 COA 43, ¶ 9
(emphasis added). And there is clear statutory authority, which the
30 court relied on, that allows an award of attorney fees — namely,
section 13-17-102. Therefore, we reject the contention that the
court’s award of attorney fees violated the American Rule or any
principle of Colorado law.
b. Grounds for Awarding Attorney Fees
¶ 73 Rydz next contends that the trial court had insufficient
grounds to award attorney fees. In line with the statutory
framework of section 13-17-102, the trial court made findings that
Rydz’s motions lacked substantial justification each time it awarded
attorney fees against him. As detailed above, these findings are
supported by the record.
¶ 74 First, Rydz did file duplicative motions. Rydz filed his global
motion for summary judgment on the entirety of his counterclaims
while his two motions for partial summary judgment on issues
within his counterclaims were still pending. Similarly, his motion
in limine regarding driveway grade made the same argument that
was previously made in his pending motion to preclude evidence
about the driveway grade.
¶ 75 Next, the remaining motions for which the court awarded
attorney fees failed to follow the pertinent court rules. Rydz’s
31 request to strike the plaintiffs’ reply because the plaintiffs’ reply was
“extremely lengthy” was plainly inconsistent with C.R.C.P. 121,
section 1-15(1)(a). Further, both his motion in limine pertaining to
witness testimony and his motion to reconsider failed to make any
arguments supported by rules of evidence or rules of civil
procedure, respectively.
¶ 76 For the reasons stated above, we conclude that the trial court
had sound support in the record for its findings that Rydz’s five
motions were substantially groundless and warranted attorney fees.
¶ 77 Finally, attorney fees incurred in “resolving the fee issue” are
recoverable as attorney fees. Mau, 638 P.2d at 781. With that, the
trial court had grounds to award the plaintiffs their attorney fees
incurred in preparing for the attorney fee hearing.
¶ 78 In sum, because there is support for the trial court’s findings,
we won’t disturb its award of attorney fees.
c. Knew or Should Have Known and Notice
¶ 79 Rydz next contends that he had no notice that his motions
were subject to attorney fees. In other words, Rydz argues that, as
a pro se party, he didn’t know or reasonably couldn’t have known
32 that his actions lacked substantial justification — as is required by
section 13-17-102(6). We disagree.
¶ 80 After finding that Rydz’s motions lacked substantial
justification, the trial court made the requisite findings that Rydz,
as a pro se party, knew or reasonably should have known that his
filings were groundless during the August 13, 2024, attorney fee
hearing. These findings were supported by the record because both
the plaintiffs and the trial court had repeatedly warned Rydz that he
was bound by the same rules as licensed attorneys. Many of these
warnings were issued well before Rydz filed the motions for which
the court awarded attorney fees against him.
¶ 81 We conclude that because Rydz was repeatedly warned that he
was bound by the same court rules as a licensed attorney, there
was plenty of support on the record that he was on notice of the
possibility of an attorney fee award against him as a pro se party.
We further conclude that the trial court made the appropriate
findings that Rydz either knew or reasonably should have known
that his motions were substantially groundless. Thus, we decline to
disturb the trial court’s award of attorney fees on these grounds.
33 d. Attorney Fee Affidavits
¶ 82 Finally, Rydz contends that the plaintiffs’ attorney fee
affidavits were insufficient, and thus any award based on them was
erroneous. Specifically, he argues that the trial court didn’t require
appropriate discovery on the plaintiffs’ attorney cost affidavits but
instead accepted them at “face value.” Rydz further argues that the
invoices were insufficient because they were “almost totally blacked
out” except for the totals. We disagree.
¶ 83 The plaintiffs’ affidavits were adequate. These affidavits laid
out the attorneys’ rates, explained why those rates were reasonable,
and were supported by invoices detailing the time each attorney or
other professional spent on the specific motion for which the court
awarded attorney fees. Using invoices as support is generally
sufficient for an award of attorney fees. Weston, 271 P.3d at 561.
As Rydz points out, much of the plaintiffs’ supporting invoices is
blacked out. These blacked out sections, however, were for legal
work not related to the award of attorney fees and thus weren’t
relevant to the award of attorney fees.
34 ¶ 84 Based on the facially sufficient affidavits and the evidence
presented at the attorney fee hearing, we conclude that the record
amply supports the trial court’s award of attorney fees.
D. Plaintiffs’ Request for Attorney Fees on Appeal
¶ 85 The plaintiffs request an award of the attorney fees they
incurred on appeal pursuant to C.A.R. 38, arguing that Rydz’s
arguments on appeal, which “conflict with explicit terms in the
[d]istrict [c]ourt’s orders and findings,” and his failure to comply
with the requirements of C.A.R. 28 render the appeal substantially
frivolous. While we reject Rydz’s arguments on appeal on their
merits and we recognize that his opening brief didn’t strictly comply
with the requirements of C.A.R. 28, we nevertheless conclude that
an award of appellate attorney fees pursuant to C.A.R. 38 isn’t
warranted. Accordingly, we deny the plaintiffs’ request for an
award of attorney fees incurred on appeal.
III. Disposition
¶ 86 For the reasons set forth above, we affirm the trial court’s
judgment and orders awarding attorney fees.
JUDGE GOMEZ and JUDGE SULLIVAN concur.