Stevens v. Brandychase

• Court: Colorado Court of Appeals
• Decided: November 27, 2024
• Docket: 24CA0263
• Status: Unpublished

Opinion

24CA0263 Stevens v Brandychase 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0263 Jefferson County District Court No. 21CV112 Honorable Ryan P. Loewer, Judge

Leslie Robin Stevens, as Trustee of Hunter’s Living Trust,

Plaintiff-Appellant,

v.

Brandychase II Homeowners Association, Inc. and Antares Property Services, Inc., d/b/a Associa Colorado Association Services,

Defendants-Appellees.

ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE GOMEZ Dunn and Navarro, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 27, 2024

Spencer Fane LLP, Troy R. Rackham, Denver, Colorado, for Plaintiff-Appellant

Jachimiak Peterson Kummer, LLC, Joseph R. Kummer, Taylor A. Clapp, Lakewood, Colorado, for Defendants-Appellees ¶1 Leslie Robin Stevens appeals the trial court’s order awarding

attorney fees and costs under the Colorado Common Interest

Ownership Act (CCIOA) to Brandychase II Homeowners Association,

Inc. (BC-HOA).1 Stevens challenges the trial court’s prevailing party

analysis, its determination that CCIOA applied to some of the

claims, and its denial of her request for a hearing. We reject

Stevens’s challenges and affirm the trial court’s order. We also

grant BC-HOA’s request for appellate attorney fees and remand the

case to the trial court to determine and award those fees.

I. Background

¶2 Stevens owns a condominium in the Brandychase II

community. BC-HOA is the homeowners’ association for the

community. Antares Property Services, Inc., d/b/a Associa

Colorado Association Services (Associa), is the community

association manager. This case arises from the parties’ disputes

relating to three elections for the BC-HOA board.

1 The order on appeal refers only to BC-HOA although both

defendants (BC-HOA and Antares Property Services, Inc., d/b/a Associa Colorado Association Services) filed the underlying motion for attorney fees and costs.

1 ¶3 BC-HOA conducted the first election in November 2020 during

its annual meeting. After the meeting, BC-HOA determined that it

hadn’t achieved a quorum and, thus, that none of the candidates

had been elected. Stevens claimed, however, that through various

proxy forms she’d submitted, a quorum had been achieved and she

had been elected as a member of the board.

¶4 BC-HOA scheduled a second election, which was held online

in March 2021. Afterward, BC-HOA announced that a board had

been elected. It did not include Stevens.

¶5 Stevens then called a special online meeting in May 2021 to

conduct a third election. The ballots cast during that meeting

purported to remove the board members selected in the second

election and to elect all new members, including Stevens.

¶6 Stevens filed this action, asserting, as relevant here, claims

against BC-HOA and Associa for breach of contract and CCIOA and

for breach of the implied covenant of good faith and fair dealing.

Both claims were premised on the parties’ disputes regarding the

validity of the three elections. BC-HOA, in turn, asserted various

counterclaims against Stevens, including for declaratory relief,

breach of contract and CCIOA, breach of the implied covenant of

2 good faith and fair dealing, and civil conspiracy. These claims were

based largely on Stevens’s actions in the third election but also

touched on issues from the two earlier elections.

¶7 The trial court granted summary judgment in favor of BC-HOA

on some of the claims, declaring, as relevant here, that the proxy

forms Stevens submitted in the first election were invalid. (The

court also granted summary judgment in favor of the individual

BC-HOA board members on all claims Stevens had brought against

them.) The court then held a bench trial on the remaining issues

and determined that the second election was valid and the third

election was not.

¶8 Stevens appealed the judgment, and a division of this court

affirmed it in part and reversed it in part. Stevens v. Brandychase,

(Colo. App. No. 22CA0888, June 8, 2023) (not published pursuant

to C.A.R. 35(e)) (Stevens I). The Stevens I division agreed that

Stevens’s proxy forms for the first election were invalid and that the

third election was also invalid. However, it disagreed with the trial

court’s conclusion that the second election was valid and instead

concluded that it was invalid. The division remanded the case, and

3 the trial court entered a new order consistent with the division’s

directions.

¶9 The trial court later entered the order at issue in this appeal,

ruling on the parties’ competing motions for attorney fees and costs

under CCIOA, section 38-33.3-123(1)(c), C.R.S. 2024. The court

determined that there were six claims relevant to the fee and cost

issues:

(1) Stevens’s claim for breach of contract and CCIOA;

(2) Stevens’s claim for breach of the implied covenant of good faith and fair dealing;

(3) BC-HOA’s counterclaim for declaratory relief;

(4) BC-HOA’s counterclaim for breach of contract and CCIOA;

(5) BC-HOA’s counterclaim for breach of the implied covenant of good faith and fair dealing; and

(6) BC-HOA’s counterclaim for civil conspiracy.

Of these six claims, the court concluded that Stevens had prevailed

on three (claims 1, 5, and 6) and that BC-HOA had prevailed on the

remaining three (claims 2, 3, and 4). The court concluded that

because each party had prevailed on half of the claims, it would

4 award both parties half of their requested fees and costs, which it

found to be reasonable. Stevens’s award, reduced by half, was

assessed at $39,674.74, and BC-HOA’s was assessed at

$69,529.19. Because Stevens’s award was offset by BC-HOA’s, the

court awarded $29,854.40 to BC-HOA. This appeal followed.

II. Prevailing Party Analysis

¶ 10 Stevens initially challenges the trial court’s prevailing party

analysis in two ways. First, she contends that the court used the

wrong standard to determine the prevailing party for the purpose of

awarding attorney fees and costs. And second, she contends that,

even if the court used the right standard, it erred in applying that

standard. We address each contention in turn.

A. Applicable Standard

¶ 11 Stevens first argues that the trial court erred in determining

the prevailing party based on a claim-by-claim approach rather

than based on the entire case. We don’t consider this argument, as

Stevens didn’t preserve it for appellate review.

¶ 12 In civil cases, we generally don’t address unpreserved issues.

Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50. We don’t

require “talismanic language” to preserve an issue for appeal. Id.

5 (quoting In re Estate of Owens, 2017 COA 53, ¶ 21). Nonetheless,

for an issue to be preserved, it “must be brought to the trial court’s

attention and the court must be given the opportunity to rule on it.”

Franklin D. Azar & Assocs. P.C. v. Ngo, 2024 COA 99, ¶ 51.

¶ 13 Stevens’s argument is premised on amendments the General

Assembly made to CCIOA’s attorney fee provisions in 2006. Before

the amendments, the relevant provision of CCIOA stated,

For each claim or defense, including but not limited to counterclaims, cross-claims, and third-party claims, . . . in any legal proceeding to enforce or defend the provisions of this article or of the declaration, bylaws, articles, or rules and regulations, the court shall award to the party prevailing on such claim the prevailing party’s reasonable collection costs and attorney fees and costs incurred in asserting or defending the claim.

§ 38-33.3-123(1)(c), C.R.S. 2005 (emphases added).

¶ 14 The statute now reads, in relevant part,

In any civil action to enforce or defend this article 33.3 or the declaration, bylaws, articles, or rules and regulations, the court shall award reasonable attorney fees, actual costs, and actual costs of collection to the prevailing party . . . .

§ 38-33.3-123(1)(c)(I), C.R.S. 2024 (emphasis added); see also Ch.

266, sec. 4, § 38-33.3-123(1)(c)(I), 2006 Colo. Sess. Laws 1217-18.

6 ¶ 15 While Stevens quoted the amended language in her briefing on

the fee and cost motions and suggested generally that she had

prevailed in the action, she nevertheless argued that the court

should conduct a claim-by-claim analysis as required by the

previous statutory language and as articulated by a division of this

court in Giguere v. SJS Family Enterprises, Ltd., 155 P.3d 462, 471-

72 (Colo. App. 2006). She never argued, as she does now, that

based on the amended statutory language and a decision from

another division of this court applying that amended language, see

Far Horizons Farm, LLC v. Flying Dutchman Condo. Ass’n, 2023 COA

99, ¶ 29, the trial court was required to assess the prevailing party

in the action as a whole rather than on a claim-by-claim basis.

¶ 16 Stevens arguably invited any error in the court’s application of

the prevailing party standards by advocating for a claim-by-claim

approach. See Bernache v. Brown, 2020 COA 106, ¶ 11 (“The

doctrine of invited error prevents a party from complaining on

appeal of an error that [they] invited or injected into the case.”).

But, at a minimum, Stevens didn’t preserve her argument that the

statute requires a wholistic, rather than a case-by-case, approach.

See Madalena, ¶ 50; Franklin D. Azar & Assocs., ¶ 51.

7 ¶ 17 We reject Stevens’s suggestion that she had no opportunity to

preserve her argument because the October 2023 opinion in Far

Horizons Farm wasn’t announced until after she’d submitted her

briefs on the fee and cost issues. The parties submitted two rounds

of briefs on those issues, starting in early 2022 and ending in

September 2023. But the statutory amendments at issue date to

2006 — more than fifteen years before even the first briefs were

submitted in this case. Thus, Stevens had ample opportunity to

argue that the amendments had modified the applicable test, just

as the appellant argued in Far Horizons Farm, ¶¶ 10, 16, 18 n.6.

And the opinion in Far Horizons Farm was announced before the

trial court ruled on the fee and cost issues in this case, providing an

opportunity for Stevens to submit it to the trial court as

supplemental authority. See Univex Int’l, Inc. v. Orix Credit All., Inc.,

902 P.2d 877, 879 (Colo. App. 1995) (a party sufficiently preserved

an issue through a notice of supplemental authority), aff’d, 914

P.2d 1355 (Colo. 1996).

8 B. Claim-by-Claim Analysis and Calculation of Award

¶ 18 Stevens also argues that, even assuming the trial court didn’t

err in performing a claim-by-claim prevailing party analysis, it erred

in its application of that analysis. We disagree.

¶ 19 We review the reasonableness of a trial court’s attorney fee

award for an abuse of discretion. Accetta v. Brooks Towers

Residences Condo. Ass’n, 2021 COA 147M-2, ¶ 43. We also review

a trial court’s prevailing party determination for an abuse of

discretion. Far Horizons Farm, ¶ 17. A court abuses its discretion

when its decision is manifestly arbitrary, unreasonable, or unfair or

is based on a misapprehension or misapplication of the law. Id.

¶ 20 Stevens takes issue with the way the trial court counted the

claims on which each party prevailed. As noted above, the trial

court found that Stevens prevailed on three claims (her claim for

breach of contract and CCIOA, BC-HOA’s counterclaim for breach

of the implied covenant of good faith and fair dealing, and

BC-HOA’s counterclaim for civil conspiracy) and that BC-HOA

prevailed on three claims (Stevens’s claim for breach of the implied

covenant of good faith and fair dealing, BC-HOA’s counterclaim for

9 declaratory relief, and BC-HOA’s counterclaim for breach of

contract and CCIOA).

¶ 21 Stevens argues that the court should’ve tallied the claims

differently, as some of them asserted multiple theories (relating to

the three different elections) and some were duplicative of other

claims. She also argues that attorney fees were not recoverable for

some of the parties’ claims; although it’s not entirely clear, she

seems to challenge the basis for awarding fees for the claims for

breach of contract, breach of the implied covenant of good faith and

fair dealing, and civil conspiracy, as they didn’t arise under CCIOA.

She claims that when tallying all the theories each party raised

relating to CCIOA, she prevailed on two-thirds of them and BC-HOA

prevailed on only one-third.

¶ 22 But the trial court had broad discretion to resolve the

prevailing party question, particularly given the mixed results on

each party’s claims and theories. See Archer v. Farmer Bros. Co., 90

P.3d 228, 231 (Colo. 2004) (“A trial court is given broad discretion

to determine who is a prevailing party in multiple claim cases

because of its unique opportunity to observe the course of the

litigation.”); Gonzales v. Windlan, 2014 COA 176, ¶ 54 (“We discern

10 no reason why the standards and reasoning articulated in Archer

should not apply where . . . a case involves a single claim for relief

but multiple contested issues.”). We discern no abuse of discretion

in the manner in which the court resolved that question.

¶ 23 Finally, we discern no abuse of discretion in the trial court’s

inclusion of the claims for breach of contract, breach of the implied

covenant of good faith and fair dealing, and civil conspiracy in its

prevailing party analysis. Those claims, like the other claims

included in the court’s fee analysis, were based primarily on the

parties’ arguments regarding the validity of the three elections. It

was thus within the trial court’s discretion to find that those claims

were brought “to enforce or defend [CCIOA] or the declaration,

bylaws, articles, or rules and regulations,” as required to recover

fees under CCIOA. § 38-33.3-123(1)(c)(I).

¶ 24 For all these reasons, we discern no abuse of discretion in the

trial court’s prevailing party analysis.

III. Applicability of CCIOA to the Third Election

¶ 25 Relatedly, Stevens contends that CCIOA doesn’t apply to the

third election and, thus, that attorney fees weren’t awardable for

the portions of the claims relating to that election. We disagree.

11 ¶ 26 As explained above, CCIOA provides for the recovery of fees to

a prevailing party “[i]n any civil action to enforce or defend [CCIOA]

or the declaration, bylaws, articles, or rules and regulations.”

§ 38-33.3-123(1)(c)(I). Like other provisions of CCIOA, this

provision applies to an association as well as “[a]ny managing

agent, employee, independent contractor, or other person acting on

behalf of the association.” § 38-33.3-302(3)(a), C.R.S. 2024.

¶ 27 Citing these provisions, Stevens argues that in asserting the

validity of the third election, she (1) wasn’t advancing a claim to

enforce or defend CCIOA or BC-HOA’s declaration, bylaws, articles,

or rules and regulations; and (2) wasn’t serving as a managing

agent, employee, independent contractor, or other person acting on

behalf of BC-HOA.

¶ 28 Again, we review the reasonableness of a trial court’s attorney

fee award for an abuse of discretion. Accetta, ¶ 43. But we review

de novo any statutory interpretations or legal conclusions that

provide the basis for an award of fees. Deighton v. City Council,

3 P.3d 488, 490 (Colo. App. 2000).

¶ 29 The division in Stevens I rejected a similar argument Stevens

had made in that appeal:

12 Stevens contends the district court erred by concluding that the May [2021] election was subject to CCIOA. We disagree. This was an election for the directors of an association that is subject to CCIOA. Under such circumstances, the election must be conducted in accordance with CCIOA and the operative provisions of the [Colorado Revised Nonprofit Corporation Act]. Stevens was not free of these requirements simply because she was acting on her own behalf rather than as an authorized agent of the association.

Stevens I, slip op. at ¶ 48.

¶ 30 Although the issue raised now is slightly different, we agree

with the division’s reasoning in Stevens I and reach the same result.

¶ 31 Notwithstanding that Stevens ultimately failed in her attempts

to join the board and exert control over BC-HOA, it was within the

trial court’s discretion to conclude that her efforts to enforce the

results of the third election were essentially efforts to enforce CCIOA

and/or BC-HOA’s declaration, bylaws, articles, or rules and

regulations. Likewise, it was within the trial court’s discretion to

conclude that she was attempting to act on behalf of the association

and consequently was subject to CCIOA’s attorney fee provision. At

any rate, in resisting her efforts, BC-HOA certainly acted as an

association and endeavored to enforce CCIOA and the association’s

13 governing documents, thus subjecting the parties’ claims to the fee

provision regardless of the capacity in which Stevens was acting.2

¶ 32 Therefore, we discern no error or abuse of discretion in the

trial court’s award of fees relating to the third election.

IV. Denial of Request for a Hearing

¶ 33 Stevens also contends that the trial court erred by denying her

request to hold a hearing on the attorney fee issues, citing cases

indicating that when a party requests a hearing on such issues, a

court must conduct one. See, e.g., In re Marriage of Tognoni, 313

P.3d 655, 661 (Colo. App. 2011). We decline to consider this issue

because Stevens didn’t preserve it.

¶ 34 As before, for an issue to be preserved for appeal, it “must be

brought to the trial court’s attention and the court must be given

the opportunity to rule on it.” Franklin D. Azar & Assocs., ¶ 51.

2 To the extent that Stevens suggests the attorney fees issues

relating to the third election were governed by section 38-33.3- 123(1)(d), C.R.S. 2024, we disagree. That subsection applies only where a unit owner prevails on a claim that they violated a provision of CCIOA or the association’s declaration, bylaws, articles, or rules and regulations. Even if this provision otherwise might have applied, the trial court found that Stevens did not prevail on any claims relating to the third election.

14 ¶ 35 Before trial, defendants filed an initial motion for attorney fees

and costs. In response, Stevens requested that the trial court deny

the motion outright or, alternatively, hold a hearing on it. The court

never ruled on that first motion.

¶ 36 After the court conducted the trial and entered its initial order

and judgment, defendants filed a second motion for fees and costs.

Following the division’s decision in Stevens I, Stevens filed a

competing motion for fees and costs. Stevens didn’t make another

request for a hearing either in her response to defendants’ second

motion or in her briefing on her own motion. In fact, in her reply in

support of her motion, Stevens asked the court to rule on the issue

“without a hearing and without further delay.”

¶ 37 Stevens contends that she preserved this issue because she

requested a hearing in response to defendants’ first motion. But

the trial court ultimately ruled not on that first motion, but on

defendants’ second motion and Stevens’s competing motion.

Because Stevens didn’t request a hearing in her briefing on those

motions — and, in fact, specifically asked the court to rule without

a hearing — she didn’t preserve this issue for appeal. See id.

15 V. Appellate Attorney Fees and Costs

¶ 38 Lastly, we consider BC-HOA’s request for appellate attorney

fees and costs under section 38-33.3-123(1)(c)(I).

¶ 39 As we’ve indicated, this statute requires an award of attorney

fees and costs to the prevailing party “[i]n any civil action to enforce

or defend [CCIOA] or the declaration, bylaws, articles, or rules and

regulations.” Id. Because BC-HOA is the prevailing party in this

appeal defending an order entered pursuant to CCIOA, it is entitled

to an award of its appellate attorney fees and costs. See Accetta,

¶ 51.

¶ 40 Pursuant to C.A.R. 39.1, we remand the case to the trial court

to determine and award the amount of reasonable attorney fees and

costs BC-HOA incurred on appeal.

VI. Disposition

¶ 41 The order is affirmed, and the case is remanded to the trial

court to determine and award BC-HOA the amount of reasonable

attorney fees and costs it incurred on appeal.

JUDGE DUNN and JUDGE NAVARRO concur.