Uszko v. Forest Glen

• Court: Colorado Court of Appeals
• Decided: February 20, 2025
• Docket: 24CA0904
• Status: Unpublished

Opinion

24CA0904 Uszko v Forest Glen 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0904 Jefferson County District Court No. 24CV27 Honorable Jason Carrithers, Judge

Nancy Uszko and Ronald Chaffin,

Plaintiffs-Appellants,

v.

Forest Glen Homeowners Association of Lakewood, Inc., Judith Ber, Arlene Kuntz, Sally Griffin, Teresa Hayes, and Ronda Zivalich,

Defendants-Appellees.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE SULLIVAN Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025

Nancy Uszko, Pro Se

Ronald Chaffin Pro Se

Hall Booth Smith, P.C., Elizabeth C. Moran, Bradley N. Shefrin, Greenwood Village, Colorado, for Defendants-Appellees ¶1 Plaintiffs, Ronald Chaffin and Nancy Uszko (the homeowners),

appeal the district court’s judgment dismissing their claims against

the defendants, Forest Glen Homeowners Association of Lakewood,

Inc. (the Association), Judith Ber, Arlene Kuntz, Sally Griffin,

Teresa Hayes, and Ronda Zivalich, for failure to state a claim upon

which relief may be granted. We affirm the judgment and remand

to the district court to determine the amount of the defendants’

reasonable appellate attorney fees.

I. Background

¶2 The homeowners own a home in a development managed by

the Association. In 2020, the Association filed a complaint in

county court against the homeowners, alleging that they had

violated the Association’s governing documents. Specifically, the

Association asserted that the homeowners had installed

landscaping and made improvements without the Association’s

Architectural Control Committee’s approval, stored trash and other

items on their property’s exterior, and obstructed access to the

Association’s common areas.

¶3 The homeowners asserted counterclaims against the

Association — including breach of the covenant of good faith and

1 fair dealing, declaratory relief, and fraud — based on the

Association allegedly creating hazardous conditions, interfering with

the homeowners’ property rights, violating its duties to

homeowners, and mispresenting its own rules. The homeowners

also attempted to bring third-party claims against members of the

Association’s board of directors based on similar grounds, but the

county court denied the homeowners’ motion to assert third-party

claims.

¶4 After a bench trial, the county court ruled in the Association’s

favor on “most” of its claims and “denied and dismissed” the

homeowners’ counterclaims. The county court explained in its

verbal ruling, however, that the homeowners could submit a

proposed plan for their back patio area to the Association and that

their plan would “not [be] restricted to . . . eight feet.” The county

court also awarded the Association its attorney fees and costs

under the fee-shifting provision of the Colorado Common Interest

Ownership Act (CCIOA), § 38-33.3-123(1)(c), C.R.S. 2024, and

denied the homeowners’ C.R.C.P. 360(b) motion for relief from the

judgment.

2 ¶5 The homeowners appealed the county court’s judgment to the

district court. But the district court determined that (1) the

homeowners’ appeal of the county court’s merits judgment was

untimely, see C.R.C.P. 411(a); and (2) the county court hadn’t

abused its discretion by awarding the Association its attorney fees.

The district court also denied the homeowners’ motion for sanctions

in which they alleged that the Association, its attorneys, and its

witnesses had defrauded the court and committed perjury.

¶6 Undeterred, the homeowners in 2022 filed a fifty-eight-page

district court complaint against the Association’s individual board

members and its attorneys involved in the county court case.

Asserting some sixteen claims, the homeowners alleged that the

board members had breached their fiduciary duties and that the

attorneys had aided and abetted their breach. They also alleged

that the defendants had committed various other torts and violated

certain federal and state fair housing acts. The district court — the

same district court judge who had heard the homeowners’ county

court appeal — dismissed the homeowners’ claims under C.R.C.P.

12(b)(5), determining that their claims were barred by the claim

preclusion doctrine and constituted an impermissible collateral

3 attack on the county court judgment. A division of this court

affirmed the district court’s dismissal. See Chaffin v. Ber, (Colo.

App. No. 22CA1495, Oct. 26, 2023) (not published pursuant to

C.A.R. 35(e)) (Chaffin I).

¶7 Still undeterred, the homeowners filed the present district

court lawsuit in 2024, asserting claims against the Association, its

board members, and one of its employees for (1) defamation; (2)

intentional infliction of emotional distress; (3) breach of fiduciary

duty; (4) civil conspiracy; and (5) fraud. These claims were based

largely on two allegedly defamatory communications made by the

defendants in early 2023 to other Association members while the

homeowners’ appeal in their first district court lawsuit was pending

in this court, although the homeowners also alleged other

misconduct that attempted to rehash their prior claims. The

defendants moved to dismiss under C.R.C.P. 12(b)(5), arguing that

the homeowners’ vague allegations failed to state plausible claims

for defamation and intentional infliction of emotional distress and

that, in any event, their claims were barred by the litigation

privilege and the claim preclusion doctrine. The district court

granted the defendants’ motion to dismiss “for the reasons stated

4 therein,” denied the homeowners’ motion for reconsideration, and

awarded the defendants their attorney fees and costs.

¶8 The homeowners now appeal the district court’s dismissal of

their claims.

II. Discussion

A. C.A.R. 28(a)

¶9 At the outset, we address the defendants’ contention that the

homeowners’ brief doesn’t comply with C.A.R. 28(a)(7)(B)’s

requirement that the appellant’s brief contain a “clear and concise

discussion of the grounds upon which the party relies in seeking a

reversal or modification of the judgment.”

¶ 10 We agree with the defendants that the homeowners’ pro se

briefs contain several unsupported assertions of fact and law and

that their arguments largely fail to explain how the district court

erred by dismissing their claims. The Chaffin I division noted that

similar defects plagued the homeowners’ briefs in that appeal. See

Chaffin I, ¶ 14 (The homeowners’ briefs “read more like stream-of-

consciousness rants than legal briefs, largely neglecting to engage

with the legal principles underlying the district court’s dismissal of

the complaint.”). Nonetheless, we are able to discern at least some

5 of the bases on which the homeowners challenge the district court’s

dismissal. We will therefore address those specific contentions.

See Johnson v. McGrath, 2024 COA 5, ¶ 10 (explaining that the

court can’t “rewrite a pro se litigant’s pleadings” or act as their

advocate); Middlemist v. BDO Seidman, LLP, 958 P.2d 486, 495

(Colo. App. 1997) (declining to address the propriety of the trial

court’s order where the plaintiff “fail[ed] to identify any specific

errors committed by the trial court”).

B. Claim Preclusion Can Bar CCIOA Claims

¶ 11 Without citing supporting authority, the homeowners contend

that the district court erred by dismissing their breach of fiduciary

duty, civil conspiracy, and fraud claims because CCIOA supersedes

“decisional law.” We interpret the homeowners’ reference to

“decisional law” to mean case law codifying the claim preclusion

doctrine.

¶ 12 We review de novo a district court’s decision dismissing a

complaint under C.R.C.P. 12(b)(5). Colo. Ins. Guar. Ass’n v. Menor,

166 P.3d 205, 211-12 (Colo. App. 2007).

¶ 13 The claim preclusion doctrine prevents parties from relitigating

claims that were or that could have been litigated in a prior

6 proceeding. Gale v. City & Cnty. of Denver, 2020 CO 17, ¶ 14. The

doctrine applies when (1) the judgment in the prior proceeding was

final; (2) the prior and current proceedings involved identical

subject matter; (3) the prior and current proceedings involved

identical claims for relief; and (4) the parties to the proceedings

were identical or in privity with one another. Id. The doctrine is

“fundamental” to the operation of the judicial system because it

confirms the finality of judgments and encourages reliance on prior

adjudications. Argus Real Est., Inc. v. E-470 Pub. Highway Auth.,

109 P.3d 604, 611 (Colo. 2005).

¶ 14 Contrary to the homeowners’ argument, claims arising under

CCIOA aren’t exempt from the claim preclusion doctrine. Indeed,

the Chaffin I division applied the claim preclusion doctrine when it

affirmed the dismissal of the homeowner’s claims in their first

district court case — claims that similarly arose under CCIOA. See

Chaffin I, ¶ 17. Other divisions of this court have likewise indicated

that claim preclusion can bar claims arising under CCIOA when the

doctrine’s elements are met. See Brooktree Vill. Homeowners Ass’n

v. Brooktree Vill., LLC, 2020 COA 165, ¶ 86. And our supreme court

has rejected calls to exempt certain categories of statutory claims

7 from the claim preclusion doctrine. See Gale, ¶¶ 17-23 (claims

arising under 42 U.S.C. § 1983 aren’t excepted from the claim

preclusion doctrine).

¶ 15 Accordingly, we reject the homeowners’ argument that claims

arising under CCIOA are exempt from the claim preclusion doctrine.

C. The County Court Didn’t Find that the Defendants Violated any Duty Owed to the Homeowners

¶ 16 The homeowners next contend that the district court erred by

relying on the defendants’ “false proffer” that the county court ruled

against them. The homeowners’ brief isn’t clear how the

defendants’ allegedly false assertion that the homeowners lost

before the county court entitles them to reversal here. To bar the

homeowners’ claims, claim preclusion simply requires a final

judgment in the prior proceeding; it need not necessarily be an

adverse final judgment. See Gale, ¶ 14; see also Migra v. Warren

City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81-85 (1984) (applying

claim preclusion to § 1983 claim brought in federal court by teacher

who had already prevailed on state law claims in state court).

¶ 17 In any event, the record doesn’t support the homeowners’

contention that they prevailed before the county court. The county

8 court said explicitly that it granted “most” of the Association’s

requests and that it “denied and dismissed” each of the

homeowners’ counterclaims. As a result, the county court

determined that the Association was the “prevailing party” under

section 38-33.3-123(1)(c), entitling it to recover its attorney fees and

costs.

¶ 18 We recognize that the county court didn’t adopt the

Association’s position on all issues raised in its complaint. For

example, the county court said that the homeowners’ patio plans

were “not restricted to . . . eight feet.” But this was a reference to

what the homeowners could include in a future submission to the

Association’s board for its review, not a definitive ruling on the area

that the homeowners could utilize for their project. Moreover,

regardless of how the homeowners now characterize certain narrow,

discrete rulings made by the county court, the court clearly

determined that the Association was the prevailing party in the case

as a whole by awarding it attorney fees under section 38-33.3-

123(1)(c). See Far Horizons Farm, LLC v. Flying Dutchman Condo.

Ass’n, 2023 COA 99, ¶ 29 (CCIOA’s fee-shifting provision, § 38-

9 33.3-123(1)(c), requires the court “to determine the prevailing party

in the action as a whole, and not on a claim-by-claim basis”).

¶ 19 Accordingly, we conclude that the district court didn’t err by

relying on the Association’s position that it, not the homeowners,

prevailed before the county court.

D. The Homeowners Didn’t Preserve their Federal Housing Act Disability Protections Claim

¶ 20 The homeowners also contend that the district court erred by

dismissing their “Federal Housing Act disability protections” claim,

which they say is codified within CCIOA under section 38-33.3-

106.5, C.R.S. 2024.1

¶ 21 Putting aside whether CCIOA codifies any of the Federal

Housing Act’s protections, we decline to address this contention

because the homeowners failed to adequately present this claim to

the district court. See Brown v. Am. Standard Ins. Co. of Wis., 2019

COA 11, ¶ 21 (“[I]ssues not raised in or decided by the trial court

generally will not be addressed for the first time on appeal.”). The

homeowners’ complaint doesn’t mention the Federal Housing Act or

1 The homeowners’ brief cites section 38-33.3-106(5), C.R.S. 2024,

but we interpret that as a typographical error because section 38- 33.3-106 doesn’t contain a subsection (5).

10 section 38-33.3-106.5 and makes only a passing reference to

“disability rights” in the opening paragraph. Moreover, although

the homeowners’ response to the defendants’ motion to dismiss and

other miscellaneous filings contained cursory references to section

38-33.3-106.5, their argument was never developed. See Salazar v.

Pub. Tr. Inst., 2022 COA 109M, ¶ 34 (“passing references” and

“undeveloped arguments” are insufficient to preserve a contention

for appellate review). Under these circumstances, we conclude that

the homeowners’ contention wasn’t adequately preserved for

appellate review.

E. The Homeowners’ Remaining Arguments Don’t Require Reversal

¶ 22 The homeowners assert an assortment of other contentions in

support of their arguments urging reversal. Many of their

remaining arguments — such as their request that we reverse the

district court’s award of attorney fees to the defendants — are

undeveloped and we won’t consider them further. See Taylor v.

Taylor, 2016 COA 100, ¶ 13 (declining to consider contentions

“unsupported by any substantial argument”); People v. Wallin, 167

11 P.3d 183, 187 (Colo. App. 2007) (declining to address arguments

presented in a perfunctory or conclusory manner).

¶ 23 For those remaining contentions that are developed to at least

some degree, we resolve them as follows:

• The defendants’ attorneys aren’t named as defendants in

this case, and therefore we lack jurisdiction to address

the homeowners’ contentions accusing them of

wrongdoing. See, e.g., Zaborski v. Colo. Dep’t of Corr.,

812 P.2d 236, 238 (Colo. 1991).

• We agree with the district court that the two

communications from the Association’s board to the

other community members in early 2023 are protected by

the litigation privilege. The board sent the

communications during the course of and in furtherance

of the litigation. See Killmer, Lane & Newman, LLP v.

BKP, Inc., 2023 CO 47, ¶ 38. Specifically, the Association

sent its communications while the prior district court

case was pending on appeal to inform the other

community members about the status of the case. See

Club Valencia Homeowners Ass’n v. Valencia Assocs., 712

12 P.2d 1024, 1028 (Colo. App. 1985) (letter sent by

homeowners’ association’s attorney to other homeowners

was privileged because it had some relation to the

litigation and was in furtherance of the homeowners’

objectives), abrogated on other grounds by Killmer, Lane &

Newman, LLP, ¶¶ 20-22. The litigation privilege therefore

bars the homeowners’ tort claims that are premised on

such communications. See Patterson v. James, 2018

COA 173, ¶ 20 (litigation privilege applies regardless of

the tort theory invoked, if the claim is based on

statements made in the course of litigation).

• While the homeowners assert that the claim preclusion

doctrine doesn’t grant the defendants authority to

“continue” to violate their rights, nothing in their

allegations suggests that the defendants are doing

anything other than acting in accordance with the

judgments rendered by the county and district courts in

the prior cases. The Chaffin I division concluded as

much when it rejected an identical contention made by

the homeowners. Chaffin I, ¶ 17.

13 ¶ 24 Accordingly, we conclude that the district court didn’t err by

dismissing the homeowners’ claims.

F. Appellate Attorney Fees and Costs

¶ 25 The defendants request their attorney fees incurred on appeal

under section 13-17-201, C.R.S. 2024. Under that statute, the

defendant in a tort action that is dismissed under C.R.C.P.

12(b) before trial “shall have judgment for his reasonable attorney

fees in defending the action.” § 13-17-201(1) (emphasis added).

This includes reasonable attorney fees incurred in defending the

dismissal on appeal.2 See Patterson, ¶ 48. Because we’ve affirmed

the district court’s dismissal of the homeowners’ claims, we agree

the defendants are entitled to an award of their reasonable

appellate attorney fees. But because the district court is best

positioned to determine the amount of the defendants’ reasonable

appellate attorney fees, we remand the case to the district court to

determine the amount of those fees. See C.A.R. 39.1.

2 Although the defendants also request their appellate costs under

section 13-17-201(1), C.R.S. 2024, the statute speaks only to “reasonable attorney fees in defending the action.” Nonetheless, as the prevailing parties on appeal, the defendants are entitled to their appellate costs upon compliance with C.A.R. 39(c)(2).

14 III. Disposition

¶ 26 We affirm the judgment and remand to the district court for

further proceedings consistent with this opinion.

JUDGE FREYRE and JUDGE SCHOCK concur.