Crystal v. Marrone

22CA1847 Crystal v Marrone 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1847

Summit County District Court No. 20CV30124

Honorable Mark D. Thompson, Judge

Holly Crystal,

Plaintiff-Appellant,

v.

Kathryn Marrone, Billy Joe North, Marilyn North, Gail M. O’Malley Revocable

Trust, and Parkside Townhomes 1,

Defendants-Appellees.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE SCHUTZ

J. Jones, J., concurs

Johnson, J., dissents

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 29, 2024

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Elizabeth Michaels,

Denver, Colorado; Gordon Rees Scully Mansukhani, LLP, Reagan Larkin,

Denver, Colorado, for Plaintiff-Appellant

Altitude Community Law, P.C., William Short, Lakewood, Colorado, for

Defendants-Appellees

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¶ 1 Plaintiff, Holly Crystal, appeals the district court’s award of

attorney fees to defendants, Kathryn Marrone, Billie Joe and

Marilyn North, Gail M. O’Malley Revocable Trust, and Parkside

Townhomes 1 (the Association).

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We reverse and remand for

further proceedings.

I. Background

¶ 2 A more detailed discussion of this dispute is set forth in

Crystal v. Marrone, (Colo. App. No. 22CA0913, Aug. 29, 2024) (not

published pursuant to C.A.R. 35(e)) (Crystal I). But we provide the

following factual summary for context.

¶ 3 Crystal asserted numerous claims against defendants arising

out of disputes concerning the extent of any easement and common

area created by the “Declaration of Covenants, Easements,

Restrictions, Homes Association” (Original Declaration) and

associated “Plat Map,” and the “Amended and Restated Declaration

of Covenants, Easements, Restrictions and Homes Association

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The caption of the pleadings in the district court and on appeal

name as a defendant “Parkside Townhomes 1.” But the operative

documents refer to “Parkside Townhomes I.” The parties also

sometimes refer to that defendant as “Parkside,” but generally refer

to it as “the Association,” which we do as well.

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Declaration for Parkside Townhomes I” (Amended Declaration) for

the Parkside subdivision located in Frisco. Crystal also asserted a

trespass claim against Marrone.

¶ 4 In their answer to Crystal’s complaint, defendants requested

an award of their attorney fees pursuant to the Amended

Declaration and the Colorado Common Interest Ownership Act

(CCIOA), section 38-33.3-123(1), C.R.S. 2024.

¶ 5 In the trial management order (TMO), which the district court

adopted on the first day of trial, both Crystal and defendants agreed

that any award of attorney fees depended on a prevailing party

determination and that the amount of attorney fees would be

determined in post-trial proceedings pursuant to C.R.C.P. 121.

¶ 6 After a four-day bench trial, the court rejected all of Crystal’s

claims and determined that defendants were the prevailing parties

and therefore entitled to their attorney fees under the Amended

Declaration and CCIOA. Consistent with the TMO and with the

request made as a part of defendants’ proposed findings of fact and

conclusions of law, the court found that the amount of fees to be

awarded would be determined in post-trial proceedings.

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¶ 7 Defendants timely filed a bill of costs and moved for a

determination of the amount of attorney fees and costs, seeking

$82,446.96 in fees and $10,226.54 in costs. Crystal responded,

asserting primarily that the fees sought by defendants were

unreasonable because defendants’ counsel devoted an excessive

amount of time to the case. Crystal did not request an attorney fees

hearing. The court ultimately awarded the amount of costs and

fees that defendants requested.

¶ 8 In view of our disposition in Crystal I we conclude that we do

not need to address Crystal’s claims in detail because we have

reversed significant portions of the judgment underlying the fee

award to defendants.

II. Analysis

¶ 9 In Crystal I, we concluded that the district court erred by

entering judgment in defendants’ favor finding that Crystal’s side

and rear yards are encumbered by an express access and utility

easement, an implied easement by necessity, and a prescriptive

easement. We also concluded that the district court erred by

finding that Crystal’s side and rear yards are common areas under

the covenants and that the Amended Declaration created or

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confirmed the creation of an easement or common area across

Crystal’s side and rear yards.

¶ 10 The findings that we have reversed were essential to the

court’s conclusion that defendants were the prevailing parties on

claims asserted under the Amended Declaration or CCIOA.

¶ 11 Pursuant to section 38-33.3-123(1)(c), “[i]n 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.” See also Far Horizons Farm, LLC v. Flying

Dutchman Condo. Ass’n, 2023 COA 99, ¶ 29 (“[S]ection 38-33.3-

123(1)(c), as amended in 2006, requires a court to determine the

prevailing party in the action as a whole, and not on a claim-by-

claim basis.”).

¶ 12 In Crystal I, we also determined that Crystal’s challenge to the

district court’s finding that she violated the covenants by installing

a hot tub was moot. But we noted that a narrow aspect of this

claim was not moot: its potential impact on the district court’s

determination of prevailing party status in resolving the competing

attorney fees claims on remand. Finally, we affirmed the district

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court’s rejection of Crystal’s trespass claim against Marrone.

Because of our disposition in Crystal I, Crystal has prevailed on

some of her claims, defendants have arguably prevailed on their

counterclaim relative to the hot tub, and Marrone has prevailed on

the trespass claim.

¶ 13 In determining prevailing party status on remand, the district

court will need to address a few additional issues. As it relates to

the claim involving the hot tub, the court will need to resolve

whether the Association should be deemed the prevailing party

based on its theory that Crystal agreed to remedy the hot tub

because of the Association’s counterclaim. If the court determines

that the counterclaim was the impetus for Crystal’s compliance,

then the court shall consider that in determining prevailing party

status in the case. See Ctr. for Biological Diversity v. Norris, 262

F.3d 1077, 1080 (10th Cir. 2001) (permitting an award of statutory

attorney fees when the claim that authorizes the fees was the

catalyst for the sued party’s compliance).

¶ 14 With respect to the trespass claim, the court must determine

whether the claim was based on the covenants or simply a common

law theory of trespass. A pure trespass claim generally does not

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trigger an award of attorney fees to the prevailing party. But if the

district court determines the trespass claim was dependent on

rights granted under the covenants, then the court may consider

that in its overall determination of which parties, if any, prevailed in

this case. § 38-33.3-123(1)(c).

¶ 15 Finally, as it relates to the Amended Declaration, the court will

need to determine whether any party is entitled to an award of

attorney fees under its attorney fees provision. In resolving this

issue, the court will need to consider when the Amended

Declaration was adopted relative to the complained of conduct and

also, whether the particular language of the Amended Declaration

authorizes an award of attorney fees.

¶ 16 In light of the disposition in Crystal I, we reverse the district

courts award of attorney fees in favor of defendants under the

Amended Declaration and CCIOA, and we remand the case to the

district court to determine which, if any, of the parties are

prevailing parties in the action under CCIOA. See Crystal I. If the

court determines that any party is the prevailing party in this

action, then it shall determine and award that party its reasonable

attorney fees and costs under CCIOA. § 38-33.3-123(1)(c).

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¶ 17 The district court also cited section 13-17-101, C.R.S. 2024, in

support of its award of attorney fees. Given our disposition in

Crystal I, we reject any express or implied finding that defendants

were entitled to an award of attorney fees because Crystal’s claims

or defenses were frivolous or groundless.

¶ 18 For these reasons, we reverse the district court’s order

awarding the defendants their costs and attorney fees under section

13-17-101 and remand the case to the district court for further

proceedings consistent with this opinion and the opinion

announced in Crystal I. Because we are reversing the order

awarding attorney fees and costs, we decline to address the

additional issues Crystal raises challenging the award of attorney

fees and costs or the specific amount of fees and costs awarded.

¶ 19 Finally, we note that the parties have asserted competing

claims for an award of attorney fees and costs incurred on appeal

under C.A.R. 39.1 and section 38-33.3-123(1)(c). If, on remand, the

district court concludes that any party is entitled to an award of

attorney fees as the prevailing party under section 38-33.3-

123(1)(c), the court shall also determine and award any such

parties’ reasonable costs and attorney fees incurred on appeal. See

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Vista Ridge Master Homeowners Ass’n v. Arcadia Holdings at Vista

Ridge, LLC, 2013 COA 26, ¶ 22 (prevailing party is entitled to an

award of attorney fees and costs incurred on appeal under section

38-33.3-123(1)(c)).

III. Disposition

¶ 20 The district court’s award of attorney fees in favor of the

defendants is reversed, and the case is remanded to the district

court for further proceedings consistent with this opinion and the

opinion announced in Crystal I.

JUDGE J. JONES concurs.

JUDGE JOHNSON dissents.

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JUDGE JOHNSON, dissenting.

¶ 21 In the companion case, Crystal v. Marrone, (Colo. App. No.

22CA0913, August 29, 2024) (not published pursuant to C.A.R.

35(e)) (Crystal I) dissented, in part, with the majority opinion. I

concluded in that case that the Access and Utility Easement

identified in the Plat Map and the Original Declaration for Parkside

Townhomes 1 established an express easement. Id. In doing so, I

would have affirmed the district court judgment, albeit on the

grounds that the express easement extends the current Access and

Utility Easement to the sides of lots 104A and 104D for ingress and

egress to the individual backyard lots for the limited purpose of

performing maintenance, inspection, repair, installation, and

upkeep as needed; to access the townhomes; and to reach or

facilitate access to the rear of the lots. See id.

¶ 22 Because of my disposition in Crystal I, I need to address the

merits of the parties’ requests for attorney fees in this appeal.

¶ 23 In the trial management order (TMO), which the district court

adopted on the first day of trial, both plaintiff, Holly Crystal, and

defendants, Kathryn Marrone, Billie Joe North, Gail M. O’Malley

Revocable Trust, and Parkside Townhomes 1(the Association)

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(collectively, defendants), agreed that any award of attorney fees

was dependent upon a prevailing party determination and that the

amount of attorney fees would be determined in post-trial

proceedings pursuant to C.R.C.P. 121.

¶ 24 After a four-day bench trial, the court rejected all of Crystal

claims, and determined that (1) defendants were the prevailing

party; (2) defendants were entitled to attorney fees and costs as a

matter of law; and (3) the Association was entitled to recover its

attorney fees. Consistent with the TMO and with the request made

as part of defendants’ proposed findings of fact and conclusions of

law, the court found that the amount of fees to be awarded would

be determined in post-trial proceedings.

¶ 25 Defendants timely filed a bill of costs and moved for a

determination of the amount of attorney fees and costs, seeking

$82,446.96 in fees and $10,226.54 in costs. Crystal responded,

asserting primarily that the fees sought by the defendants were

unreasonable because the number of hours that defendants’

counsel expended on the case was excessive. Crystal did not

request an attorney fee hearing. The court ultimately granted fees

and costs in the amount the defendants’ requested.

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¶ 26 On appeal, Crystal contends that the district court erred by (1)

sua sponte awarding defendants attorney fees; (2) not apportioning

attorney fees on a claim-by-claim basis; and (3) not concluding that

defendants waived their request for attorney fees under the

Amended Declaration and Colorado Common Interest Ownership

Act (CCIOA). Additionally, she and defendants each request their

appellate attorney fees.

¶ 27 Two of the issues Crystal raises are unpreserved because they

are argued for the first time on appeal. These include her

contentions that the district court (1) sua sponte ruled in its

judgment that defendants were the prevailing party and thus

entitled to recover their attorney fees and costs and (2) did not

apportion the attorney fees on a claim-by-claim basis.

¶ 28 Generally, appellate courts do not address unpreserved issues

in civil cases. See Laleh v. Johnson, 2016 COA 4, ¶ 8, aff’d on other

grounds, 2017 CO 93. Although the plain error doctrine has been

applied in civil cases, it is infrequent and “reversal occurs only

when necessary to avert unequivocal and manifest injustice.”

Vititoe v. Rocky Mountain Pavement Maint., Inc., 2015 COA 82, ¶ 60

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(quoting Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo.

App. 2009)).

¶ 29 In her response to defendants’ fees motion, Crystal argued

that while she “does not contest the reasonableness of defendants’

counsel’s hourly rate” or “counsel’s “recitation of his relevant

experience or hourly billing rates for his firm,” she “naturally[]

contest[s] the number of hours expended on the case.” The

overwhelming majority of her response also dealt with challenging

defendants’ characterization that she was obstreperous and

expanded the issues in the litigation and that her lawsuit was

frivolous and lacked substantial justification. As noted above, she

did not seek a hearing to clarify or expound on the arguments

raised in her response or any other argument.

¶ 30 Because Crystal raised none of these issues below despite an

opportunity to do so, I do not review them any further. See Scott R.

Larson, P.C. v. Grinnan, 2017 COA 85, ¶ 70 (“Civil cases too

numerous to cite say that ‘issues not raised in or decided by a lower

court will not be addressed for the first time on appeal.’” (quoting

Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1008-09 (Colo.

2008))).

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¶ 31 As to her third contention — defendants waived seeking

attorney fees under CCIOA and the Amended Declaration — Crystal

raised a variation of this argument below. But she argued that

defendants had waived the attorney fee issue because, despite

allegedly representing that they would seek attorney fees only

relating to their counterclaim, they instead filed a motion seeking to

recover attorney fees involving the entire lawsuit. On appeal,

Crystal now argues that defendants waived their request for

attorney fees because they did not reference CCIOA and the

Amended Declaration in their motion, instead relying on section 13-

17-102, C.R.S. 2024. Therefore, I do not address Crystal’s

argument in the manner she now presents it on appeal. See U.S.

Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d

1131, 1142 (10th Cir. 2009) (“A party does not preserve an issue

merely by advancing a related theory before the district

court . . . .”); Comm’r of Mental Health & Addiction Servs. v.

Saeedi, 71 A.3d 619, 631 (Conn. App. Ct. 2013) (An appellate court

will not address a claim unless “distinctly” raised at trial, and a

“claim is distinctly raised if it is so stated as to bring to the

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attention of the court the precise matter on which its decision is

being asked.”) (citation omitted).

¶ 32 And because I would conclude that Crystal did not prevail on

her contentions on this appeal, she is not entitled to appellate

attorney fees and costs. See Lawry v. Palm, 192 P.3d 550, 570

(Colo. App. 2008) (Because the defendant “is not entitled to recover

attorney fees incurred in connection with the underlying litigation,

we conclude that an award of . . . appellate attorney fees is

inappropriate.”).

¶ 33 For the foregoing reasons, I respectfully dissent from the

majority opinion.