Velgersdyk v. Thompson Crossing

• Court: Colorado Court of Appeals
• Decided: October 3, 2024
• Docket: 23CA2002
• Status: Unknown

Opinion

23CA2002 Velgersdyk v Thompson Crossing 10-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2002 Larimer County District Court No. 22CV30584 Honorable Stephen J. Jouard, Judge

Michael Velgersdyk and Amanda Velgersdyk,

Plaintiffs-Appellants,

v.

Thompson Crossing II Association,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE FOX Johnson and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024

March & Olive, LLC, Stewart W. Olive, Fort Collins, Colorado; Poudre Legal Advisors LLC, Daniel L. Sapienza, Fort Collins, Colorado, for Plaintiffs- Appellants

Sutton Booker P.C., Joel S. Babcock, Matthew Cecil, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiffs, Michael and Amanda Velgersdyk, appeal portions of

the district court’s judgment in favor of defendants, Dylan Trembley

and Voranan V. Karbacka, and defendant-appellee, Thompson

Crossing II Association (the HOA).1 We affirm the judgment of the

district court.

I. Background

¶2 This appeal arises out of a dispute in Johnstown, Colorado,

between the Velgersdyks, their neighbors Trembley and Karbacka,

and their HOA, over water drainage onto the Velgersdyks’ property.

In the Velgersdyks’ complaint, they allege that Trembley altered the

grading and drainage pattern of his backyard and relocated the

drainage point for his sump pump, causing significantly more water

to enter the Velgersdyks’ property.

¶3 The Velgersdyks also alleged the HOA overwatered and failed

to maintain a grassy swale in the subdivision behind the

Velgersdyks’ and Trembley and Karbacka’s property, Outlot B,

which increased groundwater on the property. Finally, they alleged

that the HOA failed to enforce portions of the contract between the

1 Trembley and Karbacka did not file an answer brief.

1 HOA and homeowners — the “Declaration of Covenants, Conditions,

Restrictions, and Easements” (the Declaration) — prohibiting

alterations to grading and drainage on homeowners’ properties.

¶4 In August 2022, the Velgersdyks sued Trembley and Karbacka

for negligence and trespass/nuisance for the alleged grading

alterations and sump pump drainage issues, and for breach of

contract for Trembley and Karbacka’s alleged violations of the

Declaration, requesting damages and a permanent injunction. The

Velgersdyks also sued the HOA for negligence and

trespass/nuisance for overwatering Outlot B and for breach of the

Declaration, requesting damages and a permanent injunction. The

district court held a three-day bench trial.

¶5 To start, there was conflicting testimony about the amount of

water present in Outlot B. At trial, a landscaping company

manager the HOA had contracted with since 2017, Joseph

Potkanowicz, testified that Outlot B is located directly behind both

the Velgersdyks’ and Trembley and Karbacka’s properties.

¶6 Outlot B is a greenway area running between two sets of

homes that created a “natural drainage swale” — a shallow grassy

ditch — that collected water to direct it to a nearby street.

2 Potkanowicz testified that he was aware of several complaints in

2017 and 2018 about standing water in Outlot B, which resulted in

temporarily halting irrigation to the area. Potkanowicz testified that

by 2019, once the grass and landscaping in Outlot B became more

established, the issue was resolved. According to Potkanowicz, he

never saw evidence of water leaving Outlot B onto any resident’s

property.

¶7 Michael Velgersdyk testified, however, that the area was often

“mushy” and standing water was consistently present. Conversely,

Dylan Trembley testified that Outlot B had not had standing water

issues since 2018. Michael Velgersdyk conceded that after the HOA

reduced its watering of Outlot B, his sump pump ran “about 50%

less” than before. A defense expert, James Whipple, testified that

the Velgersdyks’ sump pump likely ran so often because their home

was too close to the groundwater table below.

¶8 There was also conflicting testimony about the alleged changes

to Trembley and Karbacka’s grading. The district court asked

Michael Velgersdyk what specific changes he believed occurred to

Trembley and Karbacka’s grading, and Velgersdyk said he believed

Trembley “flattened” his yard, which caused “probably 75%” of the

3 water that entered Trembley and Karbacka’s backyard to flow

directly onto his property, rather than draining to the properties on

each side of Trembley and Karbacka’s yard equally. Dylan

Trembley testified that he never altered the grade or drainage on his

property, however, save for relocating his sump pump drainpipe to

the lot line with the Velgersdyks.

¶9 The Velgersdyks’ expert Dennis Messner — admitted as “an

expert in civil engineering with expertise related to grading,

drainage and groundwater issues” — testified that the biggest

change he could see to Trembley and Karbacka’s property that

might affect its drainage patterns was the placement of rocks that

created a path for water to drain onto the Velgersdyks’ property.

The rocks also created a rock berm facing Outlot B that would

direct water into the Velgersdyks’ property. But Messner could not

tell if Trembley and Karbacka’s yard had been flattened or raised

and noted, when examining the property’s original “spot elevation

exhibit,” that “the flow adjacent to the patio is fairly consistent with

what was [there] originally.” Whipple testified that, based on his

observation of the property, the grading on Trembley and

Karbacka’s property had not been changed.

4 ¶ 10 As for the relocation of Trembley and Karbacka’s sump pump

drainage, the Velgersdyks introduced several photos indicating that

a sump pump drainpipe at their shared fence line was draining a

significant amount of water onto their property. Mitigating this

additional water from the sump pump drain required building a

trench and installing a new drainage system.

¶ 11 Dylan Trembley testified that he never told the HOA about

moving his sump pump drainpipe, requested approval to do so, or

spoke with Kellison Corp. (Kellison), the HOA’s property

management company, about the matter. Jeremy Woods, an HOA

manager with Kellison, testified that he was never told about the

repositioning of Trembley and Karbacka’s sump pump drain. An

HOA board member who lived across the street from the

Velgersdyks testified that he regularly saw water on the sidewalk

outside the Velgersdyks’ house, and knew it was from a sump

pump, but he did not specify whether he was aware that Trembley

had relocated his drainage pipe.

¶ 12 After trial concluded, the district court issued its findings of

fact and conclusions of law. The court found that the Velgersdyks

had failed to prove by a preponderance of the evidence that the

5 HOA’s overwatering of Outlot B had contributed to the increase in

groundwater under their property. As to the alleged regrading of

Trembley and Karbacka’s property, the court found that the

Velgersdyks had failed to prove by a preponderance of the evidence

that Trembley’s landscaping had altered drainage patterns on his

property. However, the court found that the sump pump drain

relocation caused the Velgersdyks damages because it required the

installation of the new drainage system, resulting in $6,185.66 of

costs — though the evidence did not show the HOA was aware of

Trembley’s actions.

¶ 13 The court next reached three conclusions of law. First, as to

the negligence claims against the HOA and Trembley and Karbacka,

it concluded that the Velgersdyks failed to prove that the HOA

breached a duty to maintain Outlot B, but that Trembley and

Karbacka committed negligence and breached a legal duty that

caused damages by relocating their sump pump drainage. Second,

for trespass and nuisance, the court ruled that the Velgersdyks

failed to prove that the HOA’s actions constituted a nuisance or

trespass that caused any damages, but it ruled that the

Velgersdyks established the claim for trespass and nuisance against

6 Trembley and Karbacka for their sump pump relocation. And third,

for the breach of contract claims the court decided that the

Velgersdyks failed to prove that the HOA breached the Declaration

by overwatering Outlot B and, because it was not informed of

Trembley and Karbacka’s sump pump drain relocation, the HOA did

not permit a nuisance. The court also found that Trembley and

Karbacka had not altered the grading or drainage on their property

and had not breached the Declaration.

¶ 14 As a result, the court entered judgment in favor of the HOA

and Trembley and Karbacka for every claim, save for the negligence,

trespass, and nuisance claims against Trembley and Karbacka for

relocating the sump pump drain, and ordered Trembley and

Karbacka to pay the Velgersdyks $6,185.66 in damages. The

district court declined to order injunctive relief.

¶ 15 The Velgersdyks and the HOA moved to recover attorney fees

and costs, with the Velgersdyks requesting $11,623.97 and the

HOA requesting $80,893.11 ($59,388.50 in attorney fees and

$21,594.61 in costs). The district court found that some of the

HOA’s requested attorney fees were not reasonably necessary for

the disposition of the case and excluded them (and some costs).

7 But because the HOA’s requested attorney fees were reasonable

overall and the Velgersdyks’ claims were “essentially based upon

the same set of operative facts to establish liability” and could not

be apportioned, it granted the HOA $56,674.99 in attorney fees and

$19,299.19 in costs for a total award of $75,974.18. The district

court denied the Velgersdyks’ request. The Velgersdyks filed this

appeal.

II. Issues Raised on Appeal

¶ 16 On appeal the Velgersdyks raise three issues, arguing that the

district court erred by (1) failing to address whether Trembley and

Karbacka had breached the Declaration by creating a nuisance and

finding that they had not breached the Declaration prohibiting

drainage pattern alterations despite having relocated their sump

pump drain; (2) excluding, for lack of foundation, a stamped drone

survey report relied upon by the Velgersdyks’ expert; and (3) failing

to find the HOA liable for breach of the Declaration for not

remedying a nuisance on the grounds that the HOA did not know

about the sump pump drainage relocation. Alternatively, the

Velgersdyks argue that the district court erred by awarding the

HOA attorney fees and costs without apportioning the fees by claim.

8 III. Analysis

A. Breach of Contract Claims

¶ 17 The Velgersdyks first argue that the district court erred by not

finding that Trembley and Karbacka breached the Declaration by

maintaining a nuisance and altering their property’s drainage

patterns. The Velgersdyks contend that because the district court

found that Trembley and Karbacka had committed a trespass or

nuisance by relocating the sump pump drainage, Trembley and

Karbacka necessarily violated Declaration section 8.23’s prohibition

on maintaining nuisances and that the district court erred by not

addressing this issue. The Velgersdyks also argue that the district

court interpreted Declaration section 8.24’s prohibition on grading

and drainage alterations too narrowly in finding that Trembley and

Karbacka had not committed a breach because they had not

modified “the topography or contour of any drainage area in

completing [their] landscape plan.”

¶ 18 The HOA, in turn, contends that the Velgersdyks did not

preserve the issue of whether Trembley and Karbacka breached

section 8.23 because the Velgersdyks did not raise it in their

complaint or their proposed findings of fact and conclusions of law.

9 As to section 8.24, the HOA argues that the district court’s factual

findings have record support and merit deference, and regardless,

the HOA did not breach the Declaration.

1. Section 8.23

¶ 19 The Declaration’s prohibition of nuisances in section 8.23

provides:

No obnoxious or offensive activity shall be carried on upon any Lot or the Common Area, nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to any other Owner. Nothing contained herein shall be construed as prohibiting or restricting construction activities by Declarant at any time, seven (7) days per week.

¶ 20 To start, the Velgersdyks did not sufficiently raise the

argument that Trembley and Karbacka breached section 8.23 with

the district court; thus, this issue is unpreserved. See Gebert v.

Sears, Roebuck & Co., 2023 COA 107, ¶ 25. The complaint only

references section 8.23 in the “facts and allegations” section, noting

“Section 8.23 of the Declaration provides that no owner may do

anything on their property which may be, or may become, an

annoyance or nuisance to any other owner.” But the Velgersdyks’

breach of contract claim against Trembley and Karbacka only

10 mentions section 8.24 and alleges that Trembley “breached the

terms of the Declaration by altering the grading and drainage areas

of [the] property without first obtaining permission from the Design

Review Committee of the Association.” And in the Velgersdyks’

proposed and rebuttal findings of fact and conclusions of law,

submitted after trial, section 8.23 is never mentioned in connection

with the breach of contract claims. Oddly, section 8.23 is

mentioned in the Velgersdyks’ trial brief on breach of contract but

section 8.24 is not.2 But again, the trial brief does no more than

paraphrase section 8.23 without alleging that Trembley and

Karbacka breached that provision.

¶ 21 The district court was aware of section 8.23 and the

Velgersdyks cited it intermittently, but section 8.23 was not offered

as a ground for the Velgersdyks’ breach of contract claims in the

two critical documents — the complaint and proposed findings of

fact and conclusions of law — while section 8.24 was. Thus, the

district court was not fully presented with the sum and substance

2 The stipulated facts of the Velgersdyks’ proposed trial

management orders quote section 8.24 in its entirety but repeat the same language concerning section 8.23 from the complaint.

11 of the Velgersdyks’ argument under section 8.23, and we may not

address this argument for the first time on appeal. See Gebert,

¶ 25.

¶ 22 Even had this issue been preserved, however, any error would

have been harmless because the outcome would have been the

same regardless. See C.R.C.P. 61. The district court had already

awarded the Velgersdyks $6,185.66 in damages to compensate

them for the trespass or nuisance and the costs of installing a new

drainage system after Trembley relocated the sump pump drain.

¶ 23 “The measure of damages in a breach of contract action is the

amount it takes to place the plaintiff in the position it would have

occupied had the breach not occurred.” Technics, LLC v. Acoustic

Mktg. Rsch. Inc., 179 P.3d 123, 126 (Colo. App. 2007), aff’d, 198

P.3d 96 (Colo. 2008). Even assuming a breach did occur, the

damages awarded on the other claims placed the Velgersdyks in the

same position they would have been in had the breach not

occurred, and they may not receive duplicative damages for

Trembley’s actions. See Schuessler v. Wolter, 2012 COA 86, ¶ 63

(“A plaintiff generally may not receive a double recovery for the

12 same wrong.”). Thus, any presumed error in this matter — even if

preserved — would be harmless.

2. Section 8.24

¶ 24 The district court found that Trembley and Karbacka did not

breach section 8.24, titled “Drainage and Irrigation,” because they

did not alter the “topography or contour of any drainage area” on

their property. The Velgersdyks contend that by relocating the

sump pump drainage, however, Trembley modified the “drainage

pattern” on Trembley and Karbacka’s land, and that the

Declaration, when read as a whole, implies that section 8.24

prohibits more than topographical changes.

¶ 25 Section 8.24 provides:

No Owner shall modify or change the topography or contour of any drainage areas or easements, including swales, constructed on the Lots and other portions of the Property from the shape and outline established by the Declarant or Persons or entities acting on behalf of the Declarant; provided, however, than [sic] an Owner shall be permitted to modify the drainage areas on his or her Lot upon receiving written approval therefore from the DRC. Any Owner who in any way materially modifies the drainage pattern on the land without such consent shall be subject to sanctions contained herein for violations of this Declaration.

13 The Velgersdyks contend the final sentence — along with the

Declaration’s general purpose — prohibits actions like moving a

sump pump drain.

¶ 26 We review covenants and recorded instruments de novo and

interpret them in their entirety, not by looking at particular clauses

in isolation, in an effort to ensure that all provisions are given effect

and none are rendered meaningless. FD Ints., LLC v. Fairways at

Buffalo Run Homeowners Ass’n, 2019 COA 148, ¶ 23. We will

enforce recorded instruments as they are written and give their

words and phrases their common meanings if the instrument is

clear, with any ambiguities strictly construed against the drafter.

Id.

¶ 27 We agree with the district court that section 8.24 concerns

modifications of topography and the contours of the land, and does

not encompass actions like relocating a sump pump drain. The

first sentence of section 8.24 clearly details what it prohibits —

modifications or changes to the “topography or contour of any

drainage areas or easements, including swales, constructed on the

Lots and other portions of the Property.” It then provides an

exception in the latter half of the sentence (if a homeowner gets

14 written approval to make such a change), and then in the final

sentence it details that, unless an owner obtains this approval, an

owner is subject to sanctions.

¶ 28 The final sentence does not change or expand the scope of

section 8.24. Its reference to a “drainage pattern” is merely a

catchall for the prohibited topographical changes explicitly

mentioned in the first sentence. This is further evidenced by the

final sentence’s reference to the consent exception in the prior

sentence. It would be illogical for the final sentence to, in effect,

add a new type of prohibited action different to or broader than

what the prior sentence detailed while still referencing the same

consent exception from the prior sentence. See EnCana Oil & Gas

(USA), Inc. v. Miller, 2017 COA 112, ¶ 28 (contracts must not be

interpreted in a manner that leads to an absurd result); see also

Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo.

App. 2007) (contracts must be given effect as written, unless they

are voidable or “the result would be an absurdity”).

¶ 29 The plain and common meaning of the terms in section 8.24

supports the interpretation that section 8.24 is concerned with

topographical changes only, and such an interpretation does not

15 undermine the general purpose of the Declaration or render any

other provision meaningless. See FD Ints., ¶ 23. Indeed, this

interpretation helps give effect to the broader scope of section 8.23

and its prohibition on nuisances generally.

¶ 30 Therefore, the district court did not err by finding that

Trembley did not violate section 8.24 by moving the sump pump

drain, because that section exclusively concerns topographical and

contour changes. See id.

B. Exclusion of the Drone Survey

¶ 31 Next, the Velgersdyks argue that the district court erred by

excluding, for lack of foundation, a “stamped” land survey of

Trembley and Karbacka’s property taken via drone from evidence.

1. Additional Background

¶ 32 The Velgersdyks sought to introduce the drone survey because

their expert, Messner, relied on it in trial preparation to compare

Trembley and Karbacka’s current property with the grading records

and to detect changes. The HOA objected, arguing that the report

lacked foundation and was hearsay.

¶ 33 While counsel tried to lay additional foundation, Messner

testified that he did not conduct the survey himself. Instead, he

16 requested the drone survey because he was unable to provide

surveyors access to Trembley and Karbacka’s property. Messner

did not observe the survey being conducted, did not know more

about drone surveys than a “normal person,” had not worked with

drone surveys personally, and was unfamiliar with the software

used by the surveyor.

¶ 34 The Velgersdyks chiefly argued that the survey should be

admitted as it was prepared by a land surveyor at the direction of a

professional engineer (Messner), while the HOA argued that the

report lacked reliability. The HOA noted that “[w]e’ve seen no

indication that it is reliable in this case. No testimony to margin of

error. No testimony to the type of drone used.” The district court

sustained the objection and refused to admit the drone survey.

¶ 35 The next day the Velgersdyks asked the court to reconsider,

arguing that the drone report was a “stamped and certified survey”

by a certified land surveyor. Thus, the Velgersdyks argued, CRE

703 and two cases (a Colorado Court of Appeals case and the

Colorado Supreme Court case that overruled it on other grounds) —

Hamilton Enterprises, Ltd. v. South Park Land & Livestock Co., 527

P.2d 886, 889 (Colo. App. 1974), and South Park Land & Livestock

17 Co. v. Hamilton Enterprises, Ltd., 538 P.2d 444 (Colo. 1975) —

supported its admission. The district court reiterated that “the

basis of [the court’s] ruling was that there was not a foundation

that the survey was reasonably reliable from the witness.” The

Velgersdyks attempted to lay more foundation, with Messner

testifying that it was common for civil engineers to rely on stamped

land surveys as the stamp indicates reliability. The HOA renewed

its objection, noting that simply because a survey was stamped did

not render it admissible. The court again refused to admit the

drone survey.

2. CRE 703 and the Stamped Survey

¶ 36 “Under CRE 402, all relevant evidence is admissible, except as

provided by constitution, rule, or statute, and irrelevant evidence is

not admissible.” People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007).

And while relevant evidence is broadly admissible, “CRE 702 and

CRE 403 temper that broad admissibility by giving courts discretion

to exclude expert testimony if it is unreliable, [or] irrelevant.” Id.

And a district court may exclude evidence if “its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations

18 of undue delay, waste of time, or needless presentation of

cumulative evidence.” CRE 403.

¶ 37 “We review a trial court’s determination of the admissibility of

evidence, including expert testimony, for an abuse of discretion and

review its application of a legal standard de novo.” Bocian v.

Owners Ins. Co., 2020 COA 98, ¶ 63. The district court is granted

broad discretion over the admissibility of expert testimony, and we

will not overturn its decision unless it was “manifestly erroneous.”

Id. at ¶ 64; see also People v. Huehn, 53 P.3d 733, 736 (Colo. App.

2002) (“Whether a proper foundation has been established is a

matter within the sound discretion of the trial court, whose decision

will not be disturbed absent a clear abuse of that discretion.”).

¶ 38 “Under CRE 703, experts may testify as to facts and data that

are not otherwise admissible in evidence if the facts and data

formed the basis of the expert’s opinion and are of the type

reasonably relied upon by experts in the field.” People in Interest of

M.M., 215 P.3d 1237, 1250 (Colo. App. 2009); see also Quintana v.

City of Westminster, 56 P.3d 1193, 1199 (Colo. App. 2002). “CRE

703 does not permit otherwise inadmissible facts or data to be

presented to the [fact finder] merely because the expert relied on

19 them. . . . [I]f the facts and data are admitted, they are admissible

only to explain the witness’s opinion, not for the truth of the matter

asserted.” People v. Vigil, 2024 COA 72, ¶ 18.

¶ 39 The district court excluded the drone survey because it lacked

adequate foundation and the HOA challenged its reliability. As a

result, because “the underlying basis for the expert opinions and

recommendations [was] not accepted as reliable by the court[], the

expert’s testimony itself [was] inadmissible.” M.M., 215 P.3d at

1250.

¶ 40 “When determining whether expert testimony is reliable, the

trial court ‘should apply a liberal standard that only requires proof

that the underlying scientific principles are reasonably reliable.’ In

doing so, the court must consider the totality of the circumstances

and is not confined to any specific list of factors.” Bocian, ¶ 66

(quoting Kutzly v. People, 2019 CO 55, ¶ 12).

¶ 41 Here, the Velgersdyks’ primary argument for the reliability of

the drone survey report was that it was a “stamped and certified

survey” prepared by a land surveyor. The Velgersdyks primarily

point to South Park Land, 538 P.2d 444, as support for the

proposition that a certified survey is inherently reliable. There, the

20 Colorado Supreme Court addressed the propriety of a discharged

land surveying company’s revocation of its certification for all

survey work completed in a project, along with its filing of a

mechanic’s lien on the remaining unpaid contract balance, once it

found out that some of the survey work had been modified. Id. at

444-45. The supreme court held that the revocation was an

improper remedy given that the statutory regime already provided

penalties for wrongful alterations of survey work. Id. at 445. In

reaching this conclusion, the supreme court noted that “[s]urveyors

are licensed to protect the public from unqualified work. The

required seal certifies expertise. It also acknowledges the surveyor’s

responsibility to protect the public for any mistakes or negligence in

the survey which bears the seal.” Id. (citations omitted). The

statutory regime governing land surveyors in sections 12-120-301

through -316, C.R.S. 2024, does not undermine these propositions.

¶ 42 But South Park Land never specifically addressed whether land

surveys were inherently reliable for purposes of CRE 702 and 703.

Had the Velgersdyks brought the survey’s creator, Michael J.

Dedecker, to lay a proper foundation, the district court’s ruling

might well have been different. But the Velgersdyks only called

21 Messner, who testified that it was common for civil engineers to rely

on stamped land surveys and could not specify if there were any

differing practices for traditional surveys and aerial surveys.

Messner also testified that he (1) had not observed the survey being

conducted; (2) was no more familiar with drone surveys than a lay

person; and (3) had not “worked with” drone surveys personally. As

a result, Messner could not speak to the reliability of the drone

survey or the methodology behind its preparation.

¶ 43 The record supports the district court’s determination that

there was insufficient foundation to admit the drone survey.

Accordingly, we cannot say that the district court’s decision was

manifestly erroneous. See Bocian, ¶ 63.

C. HOA Breach of Contract Claim

¶ 44 The Velgersdyks next argue that the district court erred by

failing to find that the HOA breached the Declaration by not

enforcing section 8.23 and allowing Trembley and Karbacka to

maintain a nuisance when they moved their sump pump drainage.

The district court found that the HOA “was not informed of the

decision by Defendants Trembley and Karbacka to move their sump

pump discharge, did not authorize the same, and [the HOA] did not

22 breach the terms of the Declaration by permitting a nuisance under

Section 8.23 of the Declaration.” The Velgersdyks contend that

there is “substantial evidence,” however, that the HOA knew about

the drainage relocation and failed to act — though their contentions

lack citations to specific parts of the record for support. See C.A.R.

28(a)(7)(B) (an appellant’s brief must include citations to the parts

of the record on which the appellant relies).

¶ 45 We review the district court’s factual determination that the

HOA did not know of the nuisance for clear error and must defer to

it unless it has no support in the record. Shekarchian v. Maxx Auto

Recovery, Inc., 2019 COA 60, ¶ 28 (“Where, as here, the district

court acts as the factfinder, we defer to its credibility

determinations and will not disturb its findings of fact unless they

are clearly erroneous — that is, lack any support in the record.”). It

is not our role to reweigh conflicting evidence. See IBC Denver II,

LLC v. City of Wheat Ridge, 183 P.3d 714, 719 (Colo. App. 2008).

¶ 46 The record supports the finding that the HOA was unaware

that Trembley relocated his sump pump drain. He testified that he

never told the HOA about moving his sump pump drainpipe, did

not request approval, and did not notify Kellison about the change.

23 Woods (an HOA manager with Kellison) testified that he was never

told about Trembley and Karbacka’s sump pump drain being

relocated. And the HOA board member across the street never

specified that he knew the water on the street in front of the

Velgersdyks’ house was the result of Trembley and Karbacka’s drain

relocation.

¶ 47 Because there is support in the record for the district court’s

findings, it did not clearly err. See Shekarchian, ¶ 28.

D. Attorney Fees and Costs

¶ 48 The Velgersdyks’ last contention is that the district court erred

by failing to apportion its attorney fees award by distinguishing

between their breach of contract claims and tort claims. The HOA,

in turn, requests appellate attorney fees and costs.

¶ 49 “[W]e review a court’s award of costs for an abuse of

discretion. But we review the district court’s legal conclusions

forming the basis for that decision de novo.” Far Horizons Farm,

LLC v. Flying Dutchman Condo. Ass’n, 2023 COA 99, ¶ 34 (citation

omitted).

¶ 50 It is well established that “under the American Rule, absent a

statutory or contract provision providing for the recovery of attorney

24 fees, each party is responsible for paying their own attorneys.”

Mulberry Frontage Metro. Dist. v. Sunstate Equip. Co., 2023 COA 66,

¶ 27. The district court found that section 38-33.3-123(1)(c), C.R.S.

2023,3 of the Colorado Common Interest Ownership Act (CCIOA)

permitted awarding the HOA attorney fees and costs. That statute

provides: “In any civil action to enforce or defend the provisions of

this article or of the declaration, bylaws, articles, or rules and

regulations, the court shall award reasonable attorney fees, costs,

and costs of collection to the prevailing party.”4

¶ 51 At the district court, and on appeal,5 the Velgersdyks contend

that the district court erred by not apportioning the HOA’s

3 Effective August 7, 2024, section 38-33.3-123(1)(c), C.R.S. 2024,

was amended to add subsections (1)(c)(I) and (1)(c)(II), which substantially limit an award of attorney fees for an association unless the property owner’s breach of a covenant or bylaws was the result of a willful failure to comply. See Ch. 422, sec. 1, § 38-33.3- 123, 2024 Colo. Sess. Laws 2881. 4 A division of this court noted in Far Horizons Farm, LLC v. Flying

Dutchman Condominium Ass’n that its interpretation of section 38- 33.3-123(1)(c), C.R.S. 2023 — that the district court is required to determine who is the prevailing party as a whole and not on a claim-by-claim basis — did not necessarily mean that the statute allowed for fee awards unrelated to CCIOA claims, but left the issue unresolved. See 2023 COA 99, ¶¶ 28-29. 5 The Velgersdyks do not mention “block billing” in their opening

brief on appeal, but their apportionment argument is consistent with this argument at the district court.

25 requested fees by claim and that the HOA engaged in “block billing”

by lumping together its time spent on claims that are not

recoverable under CCIOA along with recoverable claims. The

district court found that the “separate claims asserted by Plaintiffs

were essentially based upon the same set of operative facts to

establish liability. . . . [Thus] the claims were substantially

interrelated, dependent upon the same nexus of operative facts, and

. . . an apportionment of fees is not required or appropriate.”

¶ 52 Block billing is not prohibited in Colorado, but district courts

have “discretion to reduce the hours billed based on block billing if

the court is unable to determine whether the amount of time spent

on various tasks was reasonable.” Payan v. Nash Finch Co., 2012

COA 135M, ¶ 29. The Colorado Supreme Court and divisions of

this court have favorably looked to Hensley v. Eckerhart, 461 U.S.

424, 434-35 (1983), for issues involving fees and claim

apportionment. See Rocky Mountain Festivals, Inc. v. Parsons Corp.,

242 P.3d 1067, 1073 (Colo. 2010); Ravenstar LLC v. One Ski Hill

Place LLC, 2016 COA 11, ¶ 49, aff’d, 2017 CO 83; Payan, ¶ 34.

In Hensley, the United States Supreme Court considered whether an award of attorneys’ fees under a fee-shifting statute could be levied

26 when the plaintiff was successful in some claims and not in others. The Court determined that, where a plaintiff had brought multiple claims “involv[ing] a common core of facts” or “based on related legal theories,” counsel’s efforts on an individual claim could not be distinguished from work on the whole of the litigation, and thus a reduction in the fee award for work done on unsuccessful claims would be inappropriate. On the other hand, where the plaintiff presented “distinctly different claims for relief that [were] based on different facts and legal theories,” the litigation could be justly conceived as a “series of discrete claims” that had been “raised in separate lawsuits,” and so a fee award that contemplated only those claims on which the plaintiff had succeeded was both practicable and necessary to affect the purpose of the fee- shifting statute.

Rocky Mountain Festivals, 242 P.3d at 1073 (citing and quoting

Hensley, 461 U.S. at 434-35).

¶ 53 Under the Hensley approach, where a fee-shifting statute —

here CCIOA — allows for attorney fees for some claims but not

others, attorney fees need not be apportioned among the claims if

all of the claims revolve around a common core of facts or related

legal theories to the extent they cannot reasonably be separated.

See Rocky Mountain Festivals, 242 P.3d at 1073-74. The fact finder

is in the best position to make this determination, as “whether

27 claims are interrelated or segregable is inherently sensitive to the

facts of both the case at bar and those of the underlying dispute.”

Id. at 1074.

¶ 54 Here, the Velgersdyks’ claims against the HOA were for (1)

negligence for failing to maintain Outlot B properly and prevent

excess drainage; (2) trespass and nuisance for failing to prevent

drainage from Outlot B onto the property; (3) breach of contract for

failing to maintain Outlot B and failing to prevent Trembley and

Karbacka’s drainage and grading modifications; and (4) injunctive

relief. These claims all surround a common core of operative facts

and boil down to two key issues — what was the source of the

alleged extra water entering the Velgersdyks’ property, and who was

responsible? The factual research the HOA undertook to defend

against the Velgersdyks’ tort, breach of contract, and injunctive

relief claims relating to Outlot B and Trembley and Karbacka’s

drainage substantially overlapped. It was reasonable for the district

court to determine that work on each individual claim was

indistinguishable from the others and the whole of the litigation.

See id. at 1073-74.

28 ¶ 55 The record supports the district court’s conclusion that the

Velgersdyks’ “claims were substantially interrelated, dependent

upon the same nexus of operative facts.” Thus, it did not abuse its

discretion by declining to reduce the HOA’s attorney fees despite the

HOA not apportioning its requested fees by claim. See Far Horizons

Farm, ¶ 34; see also Payan, ¶ 29.

¶ 56 Finally, the HOA requests appellate attorney fees pursuant to

section 38-33.3-123(1)(c), C.R.S. 2023, C.A.R. 39(a)(2), and C.A.R.

39.1.6 See Far Horizons Farm, ¶ 39 (the prevailing party as a whole

may recover reasonable appellate attorney fees and costs incurred

in litigating claims arising under CCIOA). Because we affirm the

district court’s judgment, the HOA is the prevailing party on appeal

and it is entitled to appellate attorney fees. See C.A.R. 39(a)(2);

§ 38-33.3-123(1)(c), C.R.S. 2023. We exercise our discretion

pursuant to C.A.R. 39.1 and remand the case to the district court to

6 Because the amendments to section 38-33.3-123(1)(c) apply to

“debts accrued on or after the applicable effective date of this act” on August 7, 2024, the amendments do not apply to any attorney fees the HOA accrued before August 7, 2024. Sec. 9, 2024 Colo. Sess. Laws at 2887.

29 determine an award of reasonable appellate attorney fees in

addition to its award of attorney fees and costs incurred below.

IV. Disposition

¶ 57 The district court’s judgment is affirmed, and we remand the

case so the district court may determine an award of appellate

attorney fees in accordance with this opinion.

JUDGE JOHNSON and JUDGE SCHOCK concur.