Thomas Seaman v. Heather Gardens Association

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 28, 2023

2023COA125

No. 22CA2103 & 23CA0372, Seaman v. Heather Gardens —
Real Property — Colorado Common Interest Ownership Act —
Association Records

In this civil action involving the Colorado Common Interest

Ownership Act (CCIOA), §§ 38-33.3-101 to -402, C.R.S. 2023, a

division of the court of appeals determines, as a matter of first

impression, that a unit owners’ association’s bank statements may

constitute “[d]etailed records of receipts and expenditures affecting

the operation and administration of the association” under section

38-33.3-317(1)(a), C.R.S. 2023. The division further concludes that

records generated by a third party, such as a bank, may be records

an association “maintain[s]” and must make available for

examination and copying by a unit owner under section 38-33.3-

317(2). Thus, the division concludes that the district court erred by
dismissing plaintiff’s amended complaint on the basis that bank

statements cannot, as a matter of law, be records that a unit

owners’ association is required to maintain and produce for

inspection to a unit owner under section 38-33.3-317(1)(a) and (2).

Consequently, the division reverses the judgment dismissing

plaintiff’s complaint and remands for further proceedings.
COLORADO COURT OF APPEALS 2023COA125

Court of Appeals Nos. 22CA2103 & 23CA0372
Arapahoe County District Court No. 22CV31637
Honorable Elizabeth Beebe Volz, Judge

Thomas Seaman,

Plaintiff-Appellant,

v.

Heather Gardens Association, a Colorado nonprofit corporation,

Defendant-Appellee.

JUDGMENT AND ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE BROWN
Tow and Schock, JJ., concur

Announced December 28, 2023

Robinson Waters & O’Dorisio, P.C., Kimberly A. Bruetsch, Mike Lazar, Denver,
Colorado, for Plaintiff-Appellant

The Hustead Law Firm, Patrick Q. Hustead, Aaron M. Bell, Jason J. Patel,
Denver, Colorado, for Defendant-Appellee
¶1 The legislature enacted the Colorado Common Interest

Ownership Act (CCIOA), §§ 38-33.3-101 to -402, C.R.S. 2023, in

part to “establish a clear, comprehensive, and uniform framework

for the creation and operation of common interest communities.”

§ 38-33.3-102(1)(a), C.R.S. 2023. Common interest communities

are managed by unit owners’ associations organized under section

38-33.3-301, C.R.S. 2023.

¶2 Section 38-33.3-317, C.R.S. 2023, provides that unit owners

are entitled to reasonable access to information about the

operation, administration, and finances of their unit owners’

association. To that end, section 38-33.3-317(1) obligates an

association to “maintain” eighteen categories of records — in

addition to any records specifically defined in the association’s

declaration or bylaws, or expressly required by section

38-33.3-209.4(2), C.R.S. 2023 — “for purposes of document

retention and production to owners.” § 38-33.3-317(1)(a)-(p).

¶3 Plaintiff, Thomas Seaman, appeals the district court’s order

dismissing his complaint against defendant, Heather Gardens

1
Association (HGA).1 Seaman sought an injunction compelling HGA

to make certain bank statements available to him for examination

under CCIOA.2 He contends that the court erred by dismissing his

complaint on the basis that section 38-33.3-317 does not require

HGA to produce the bank statements.

¶4 Resolving Seaman’s contention requires us to determine, as a

matter of first impression, whether bank statements may be

“[d]etailed records of receipts and expenditures affecting the

operation and administration of the association” under section

38-33.3-317(1)(a). Based on the plain language of the statute, we

conclude that bank statements may constitute such records. We

further conclude that records generated by a third party, such as a

bank, may be records an association “maintain[s]” and must make

available for examination and copying by a unit owner under

section 38-33.3-317(2)(a). Consequently, we conclude that the

1 Our references to Seaman’s complaint are to his first amended

complaint, which is the operative complaint.
2 Seaman’s complaint also requested a penalty under section 38-

33.3-317(4.5), C.R.S. 2023, which states that an association must
allow inspection or copying of the applicable records within thirty
days or be subject to penalties. That claim is not before us on
appeal and should be addressed on remand.

2
district court erred by dismissing Seaman’s complaint under

C.R.C.P. 12(b)(5). We reverse the judgment and remand for further

proceedings.3

I. Background and Procedural History

¶5 HGA is a nonprofit corporation that manages Heather

Gardens, an age-restricted senior living community. The parties

agree that HGA is subject to CCIOA and that Seaman is a property

owner and resident of Heather Gardens. See § 38-33.3-103(3), (31),

C.R.S. 2023.

¶6 According to Seaman’s complaint, in April 2020, HGA applied

for a loan under the Paycheck Protection Program (PPP) and

received funds in the amount of $1,085,800. It opened a new

account at KeyBank to hold and manage the PPP funds. And in

July 2021, it applied for and received forgiveness of the PPP loan.

¶7 In June 2022, Seaman requested copies of HGA’s records

including, as relevant here, bank statements for the KeyBank

account in which it held the PPP funds. HGA provided Seaman

3 Because we reverse on this basis, we decline to address Seaman’s

alternative argument that section 38-33.3-317(2) requires an
association to produce “all records” it maintains, regardless of
whether such records fall within a category listed in subsection (1).

3
with copies of balance sheets showing the PPP funds as an asset

titled “Cash – Key Bank PPP Proceeds” with varying balances, but it

declined to provide the bank statements, explaining that “[b]ank

statements are not records of the association that must be kept or

made available for inspection/copying by owners.”

¶8 In August, Seaman filed a complaint in the district court

seeking an injunction requiring HGA to produce the requested bank

statements. HGA moved to dismiss under C.R.C.P. 12(b)(5),

arguing that section 38-33.3-317 does not require it to maintain or

produce bank statements for inspection and copying. It further

argued that the statute does not require it to maintain and make

available records created by a third party, such as a bank.

¶9 The district court granted the motion to dismiss, concluding

that bank statements “[c]learly” are not “[d]etailed records of

receipts and expenditures affecting the operation and

administration of the association” under section 38-33.3-317(1)(a)

and are not otherwise listed among the categories of records an

4
association is required to maintain under subsection (1).4 The

court acknowledged that the purpose of section 38-33.3-317 is “to

provide owners with access to information about the operation of

the association and how its funds are generated and spent,” but it

reasoned that Seaman had received sufficient records from HGA

“related to the receipt of PPP funds, the amount of the funds

received, the accounts in which the funds were held and when

those funds were transferred from one account to another,” and

that HGA’s refusal to provide the bank statements did not “interfere

with [Seaman’s] right to receive the relevant information.”

II. Analysis

¶ 10 Seaman contends that the district court erred by concluding

that bank statements are not, as a matter of law, “[d]etailed records

of receipts and expenditures affecting the operation and

administration of the association” under section 38-33.3-317(1)(a).

4 The district court also concluded that the requested bank

statements did not constitute “[f]inancial statements as described in
section 7-136-106, C.R.S. [2023],” § 38-33.3-317(1)(g), or
“[f]inancial records sufficiently detailed to enable the association to
comply with section 38-33.3-316(8)[, C.R.S. 2023],” § 38-33.3-
317(1)(j). It does not appear that Seaman ever argued that the
requested bank statements meet either of these definitions, and he
does not challenge that part of the court’s ruling on appeal.

5
We agree. We also conclude that, even though they are generated

by a third party, bank statements may be “maintained by the

association” such that they must be made available for examination

and copying by a unit owner under section 38-33.3-317(2). Thus,

we conclude that the court erred by dismissing Seaman’s complaint

under C.R.C.P. 12(b)(5).

A. Standard of Review and Generally Applicable Law

¶ 11 We review de novo a district court’s judgment dismissing a

complaint for failure to state a claim upon which relief can be

granted under C.R.C.P. 12(b)(5). Nieto v. Clark’s Mkt., Inc., 2021 CO

48, ¶ 11. We accept as true the factual allegations in the complaint

and, viewing them in the light most favorable to the plaintiff,

determine whether the complaint states a plausible claim for relief.

See id.; Warne v. Hall, 2016 CO 50, ¶¶ 9, 24.

¶ 12 We also review de novo issues of statutory construction. Nieto,

¶ 12. In doing so, our primary task is to give effect to the legislative

intent as reflected in the plain and ordinary meanings of the words

and phrases used. Carousel Farms Metro. Dist. v. Woodcrest Homes,

Inc., 2019 CO 51, ¶ 40. We read the statute in the context of the

entire statutory scheme, giving consistent and sensible effect to all

6
its parts. Id.; see also §§ 2-4-101, -201, C.R.S. 2023; A.M. v. A.C.,

2013 CO 16, ¶ 8. And we avoid constructions that would render

any words or phrases superfluous or lead to illogical or absurd

results. Dep’t of Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 16.

When the language of a statute is clear, we enforce it as written.

Elder v. Williams, 2020 CO 88, ¶ 18.

B. The Bank Statements May Be Detailed Records of Receipts
and Expenditures Affecting the Operation and Administration
of an Association

¶ 13 As noted, section 38-33.3-317(1) obligates an association to

“maintain” eighteen categories of records “for purposes of document

retention and production to owners.” § 38-33.3-317(1)(a)-(p).

Under section 38-33.3-317(2), “all records maintained by the

association must be available for examination and copying by a unit

owner or the owner’s authorized agent” in accordance with

prescribed procedures. Furthermore, “the association may not

condition the production of records upon the statement of a proper

purpose.” Id.

¶ 14 Seaman contends that bank statements fall into one of the

categories of records an association is required by statute to

maintain and make available to him as a unit owner: “[d]etailed

7
records of receipts and expenditures affecting the operation and

administration of the association.” § 38-33.3-317(1)(a). Based on

the statute’s plain language, we agree that bank statements may

constitute such records.

¶ 15 The relevant terms are not defined in CCIOA. But because

they are words in common usage and “people of ordinary

intelligence needn’t guess at [their] meaning,” we consider their

dictionary definitions. Butler v. Bd. of Cnty. Comm’rs, 2021 COA

32, ¶ 14; see Broomfield Senior Living Owner, LLC v. R.G. Brinkmann

Co., 2017 COA 31, ¶ 18 (where a statute fails to define a term, we

consider its common usage).

 A “record” is “the state or fact of being recorded” or

“something that records.” Merriam-Webster Dictionary,

https://perma.cc/3H6V-QUWY. To “record” means “to set

down in writing” or “furnish written evidence of.” Id.; see

Black’s Law Dictionary 1527 (11th ed. 2019) (A “record” is

“[a] documentary account of past events” or “[i]nformation

that is inscribed on a tangible medium or that, having been

stored in an electronic or other medium, is retrievable in

perceivable form.”).

8
 “Detailed” means “marked by abundant detail or by

thoroughness in treating small items or parts.”

Merriam-Webster Dictionary, https://perma.cc/3QN2-

QVFE.

 A “receipt” is “a writing acknowledging the receiving of

goods or money,” “the act or process of receiving,” or

“something received.” Merriam-Webster Dictionary,

https://perma.cc/V287-RKCF; see Black’s Law Dictionary

at 1521 (“Receipt” includes “[a] written acknowledgment

that something has been received; esp., a piece of paper or

an electronic notification that one has paid for something.”).

 “Expenditure” is defined as “the act or process of

expending” or “something expended,” namely a

“disbursement” or “expense.” Merriam-Webster Dictionary,

https://perma.cc/3MNA-5FRQ. “Expending” is further

defined as “to pay out” or “spend.” Merriam-Webster

Dictionary, https://perma.cc/7JPM-BWER; see Black’s Law

Dictionary at 723 (defining “expenditure” as “[t]he act or

process of spending or using money, time, energy, etc.; esp.,

the disbursement of funds” or as “[a] sum paid out”).

9
¶ 16 A bank statement is a “record,” in that it sets down in writing

information about a bank account. It is a “detailed record” because

it typically provides particulars about the account itself and any

transactions occurring on the account — including the date,

transaction type, and dollar amount, among other details. And it is

a “detailed record of receipts and expenditures” to the extent it

reflects any deposits (receipts of funds) into or withdrawals

(expenditures of funds) from the account.5

¶ 17 Thus, we conclude that an association’s bank statements will

typically fall within the unambiguous language of section

38-33.3-317(1)(a). And because the statutory language is clear, we

do not address the parties’ policy arguments in favor of or against

this interpretation.6 See Samuel J. Stoorman & Assocs., P.C. v.

5 The parties do not appear to dispute that “receipts” into and

“expenditures” from an association’s bank account would be
transactions “affecting the operation and administration of the
association.” § 38-33.3-317(1)(a).
6 We also do not endeavor to identify every type of record that might

satisfy section 38-33.3-317(1)(a). Indeed, the drafters of the
Uniform Common Interest Ownership Act (Unif. L. Comm’n 2021)
(UCIOA), on which CCIOA is based, eschewed any attempt to
prescribe how an association’s financial records must be kept. See
Ch. 232, sec. 1, § 38-33.3-317(1), 2012 Colo. Sess. Laws 1016;
Accetta v. Brooks Towers Residences Condo. Ass’n, 2021 COA 87,

10
Dixon, 2017 CO 42, ¶ 11 (“When a statute is unambiguous, public

policy considerations beyond the statute’s plain language have no

place in its interpretation.”).

¶ 18 Notably, HGA does not appear to argue that bank statements

do not meet the plain and ordinary meaning of the words in

subsection (1)(a). Instead, it contends that, had the legislature

intended to include bank statements in the “long list” of document

categories that an association must maintain and make available, it

would have separately listed them. HGA notes that the legislature

specified that an association must maintain certain “financial

statements,” just not the ones Seaman sought. And it argues that

interpreting subsection (1)(a) expansively renders these other

categories of documents superfluous, pointing specifically to

¶ 41 (noting that much of CCIOA was modeled on the UCIOA);
UCIOA § 3-118 cmt. 3 (“The subsection generally avoids any
substantive requirements as to how the [a]ssociation’s financial
records are to be maintained, relying simply on the obligation to
retain ‘detailed records of receipts’ . . . .”). And while we have
concluded that bank records may be “[d]etailed records of receipts
and expenditures,” not all “[d]etailed records of receipts and
expenditures” are bank statements. § 38-33.3-317(1)(a). In other
words, records other than bank statements (e.g., QuickBooks
records of income and expenses) may also satisfy the definition.
See id.

11
subsections (1)(g) and (1)(j). This is the rationale that the district

court generally adopted in dismissing Seaman’s complaint. But for

three reasons, we disagree.

¶ 19 First, to the extent bank statements are already included in

one of the eighteen categories of records an association is required

to maintain as set forth in subsection (1), the legislature need not

have separately listed them. Certain of the eighteen categories are

narrow — for example, “[a] list of the names, electronic mail

addresses, and physical mailing addresses of its current executive

board members and officers,” § 38-33.3-317(1)(h), which likely is a

single record. But others are quite broad — such as “[r]ecords of

claims for construction defects and amounts received pursuant to

settlement of those claims,” § 38-33.3-317(1)(b), which could

include demand letters, litigation-initiating complaints, settlement

agreements, check stubs or wire transfer receipts, and other similar

documents. Subsection (1)(a) is a broad category. That the

legislature did not separately identify every document that might

fall within subsection (1)(a) does not mean that documents falling

within subsection (1)(a) but not separately identified can be

withheld.

12
¶ 20 Second, the legislature exempted several types of records from

mandatory disclosure but did not include an association’s bank

statements among the exemptions. Section 38-33.3-317(3)

identifies seven categories of records that “may be withheld from

inspection and copying” and section 38-33.3-317(3.5) identifies two

categories of records that “are not subject to inspection and

copying” and “must be withheld.” An association’s bank statements

are not listed in either subsection. And although section

38-33.3-317(3.5)(b)(I) prohibits an association from disclosing

“[p]ersonal identification and account information of members and

residents, including bank account information,” it is silent as to the

association’s bank account information. (Emphasis added.)

¶ 21 To be sure, personal bank account information belonging to an

individual member is not one of the eighteen categories of records

identified in subsection (1). See § 38-33.3-317(1). Yet documents

containing such information may fall within one of the eighteen

categories, such as (1)(a). Recognizing this, the legislature

specifically exempted individual members’ bank account

information from inspection and disclosure. Because it did not do

the same for an association’s bank account information, it must not

13
have intended those bank statements to be exempt. See Reale v.

Bd. of Real Est. Appraisers, 880 P.2d 1205, 1207 (Colo. 1994)

(under the maxim “expressio unius est exclusio alterius,” “the

expression of one thing is the exclusion of another”).

¶ 22 Third, interpreting subsection (1)(a) to include an association’s

bank statements does not render any other category of record

superfluous. HGA points us to subsections (1)(g) and (1)(j), arguing

that “[i]f, as Seaman claims, [subsection (1)(a)] covers all documents

related to ‘money coming in and going out of the association,’”

subsections (1)(g) and (1)(j) would be unnecessary. True, we avoid

constructions that would render any words or phrases superfluous.

See McBride v. People, 2022 CO 30, ¶ 23. But we are not convinced

that the records identified in subsections (1)(g) and (1)(j) necessarily

constitute “[d]etailed records of receipts and expenditures affecting

the operation and administration of the association.”

§ 38-33.3-317(1)(a).

¶ 23 Section 38-33.3-317(1)(g) requires an association to maintain

“[f]inancial statements as described in section 7-136-106, C.R.S.

[2023], for the past three years.” Section 7-136-106 provides that,

“[u]pon the written request of any member, a nonprofit corporation

14
shall mail to such member its most recent annual financial

statements, if any, and its most recently published financial

statements, if any, showing in reasonable detail its assets and

liabilities and results of its operations.” (Emphasis added.) The

financial statements contemplated by section 38-33.3-317(1)(g) are

those reflecting the association’s overall financial condition by

reporting its assets and liabilities. See Black’s Law Dictionary 775

(defining “financial statement” as “[a] balance sheet, income

statement, or annual report that summarizes an individual’s or

organization’s financial condition on a specified date or for a

specified period by reporting assets and liabilities”). But a snapshot

of an association’s assets and liabilities is not likely to include

“[d]etailed records of receipts and expenditures.”

§ 38-33.3-317(1)(a). For example, a financial statement might

reflect that an association has $100,000 in a bank account as an

asset, but it would not show the transactions in and out of that

account (the receipts and expenditures) resulting in the end

balance.

¶ 24 Section 38-33.3-317(1)(j) requires an association to maintain

“[f]inancial records sufficiently detailed to enable the association to

15
comply with section 38-33.3-316(8)[, C.R.S. 2023,] concerning

statements of unpaid assessments.” Section 38-33.3-316(8), in

turn, requires an association to furnish to a unit owner “a written

statement setting forth the amount of unpaid assessments

currently levied against such owner’s unit.” A record that satisfies

section 38-33.3-317(1)(j) would reflect amounts a unit owner has

been assessed but has not paid — amounts an association has not

received — so it would not reflect either “receipts” or “expenditures”

of the association, which is what section 38-33.3-317(1)(a) requires.

Moreover, it makes sense that the legislature would take care to

separately list a record an association must maintain to be able to

comply with another of its statutory obligations under CCIOA.

¶ 25 HGA also argues that the bank statements Seaman requested

are not, as a matter of fact, the type of records contemplated by

section 38-33.3-317(1)(a) because they do not show “receipts” or

“expenditures.” More specifically, HGA asserts that it did not

receive the PPP funds directly into the KeyBank account; rather, the

funds were deposited into its operating account and then

transferred to the KeyBank account. Similarly, HGA asserts that it

did not expend any PPP funds directly from the KeyBank account;

16
rather, it transferred funds from the KeyBank account into its

operating account. It is unclear to us whether any of the PPP funds

were ever expended, from either the KeyBank account or HGA’s

operating account. In any event, we are not able to confirm these

assertions because the bank statements were not produced and are

not part of the record on appeal.

¶ 26 But more importantly, these are factual issues that cannot be

resolved in HGA’s favor on a C.R.C.P. 12(b)(5) motion. Denver Post

Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011) (“We uphold the

grant of a C.R.C.P. 12(b)(5) motion to dismiss only when the

plaintiff’s factual allegations do not, as a matter of law, support the

claim for relief.”). Although Seaman alleged that the records he did

receive from HGA showed transfers of PPP funds between the

KeyBank account and HGA’s operating account, he did not allege

that those were the sole transactions on the KeyBank account or

that the PPP funds were not received into or expended from the

KeyBank account. Nor can we so conclude as a matter of law.

¶ 27 For these reasons, we conclude that the district court erred

when it determined, as a matter of law, that the bank statements

Seaman requested did not fall within section 38-33.3-317(1)(a).

17
C. Records Generated by Third Parties May Be Maintained by an
Association

¶ 28 HGA also contends that section 38-33.3-317(1) does not

require an association to maintain or make available records

“created by an outside party, such as a bank.” Because subsection

(1) obligates an association to “maintain” certain records, and

subsection (2) requires that “all records maintained by the

association” be made available for inspection and copying, we

understand HGA to argue that records generated by third parties

are not records “maintained” by an association.7 We reject this

contention for three reasons.

¶ 29 First, several of the eighteen categories of records an

association is obligated to maintain are records an association is

unlikely to generate itself. For example, “[r]ecords of claims for

construction defects” may include demand letters and complaints

asserting claims for construction defects, which are likely to be

drafted by the association’s legal counsel. § 38-33.3-317(1)(b).

Similarly, “[t]he association’s most recent reserve study” may have

7 HGA does not argue, and the record does not reveal, that it does

not have copies of or lacks reasonable access to its bank
statements.

18
been prepared by a professional reserve study company or an

outside expert. § 38-33.3-317(1)(k). Thus, the fact that a third

party generates a record cannot mean that an association does not

“maintain” it.

¶ 30 Second, excluding records created or kept by third parties

from those an association is obligated to produce would frustrate

the purpose of section 38-33.3-317 and lead to absurd results. See

AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d 1023, 1031

(Colo. 1998) (“[A] statutory interpretation that defeats the legislative

intent or leads to an absurd result will not be followed.”). Under

HGA’s interpretation, an association that creates its own records

would be required to produce them to unit owners while an

association that outsources the preparation of its records — likely a

larger association able to afford such professional services — would

be able to avoid that same obligation. Such a result would be

inequitable and contrary to the clear purpose of section

38-33.3-317, which is to provide unit owners with reasonable

access to information about the operation and administration of an

association. Because we must presume the legislature intended a

just and reasonable result, see AviComm, Inc., 955 P.2d at 1031, we

19
reject any construction of the statute that conditions an owner’s

right to access an association’s records on whether an association

had a third party prepare them.

¶ 31 Third, we are persuaded that an association must make

records generated by a third party available to unit owners by

reference to a public entity’s obligations under the Colorado Open

Records Act (CORA). Just as CCIOA entitles unit owners to inspect

certain association records, CORA entitles members of the public to

inspect public records. See § 24-72-201, C.R.S. 2023 (“[A]ll public

records shall be open for inspection by any person at reasonable

times,” except as otherwise provided by law.). “Public records”

include “all writings made, maintained, or kept by” a public entity

“for use in the exercise of functions required or authorized by law or

administrative rule or involving the receipt or expenditure of public

funds.” § 24-72-202(6)(a)(I), C.R.S. 2023 (emphasis added).

¶ 32 On several occasions, Colorado courts have concluded that

records created by or in the possession of third parties nonetheless

constitute public records that must be made available to the public.

See Leonard v. Interquest N. Bus. Improvement Dist., 2022 COA 78,

¶¶ 18-19 (documents that a public entity has a “contractual right to

20
access” from a third party constitute public records it must make

available for inspection); Int’l Bhd. of Elec. Workers Loc. 68 v. Denver

Metro. Major League Baseball Stadium Dist., 880 P.2d 160, 164

(Colo. App. 1994) (documents not “made or kept” by the public

entity, but to which the public entity had “full access” were public

records); see also Denver Post Corp., 255 P.3d at 1091

(“maintaining” a record includes “taking steps to ensure the

physical integrity of the document, updating the information it

contains, or directing another to do the same”); Zubeck v. El Paso

Cnty. Ret. Plan, 961 P.2d 597, 600-01 (Colo. App. 1998) (concluding

that the plaintiffs should have been given access under CORA to the

retirement plan’s financial records, including its bank statements).

¶ 33 In the end, we conclude that the district court erred by

dismissing Seaman’s complaint under C.R.C.P. 12(b)(5). The bank

statements Seaman requested may be records HGA is obligated to

maintain and produce to him under section 38-33.3-317(1)(a) and

(2). Whether the bank statements in fact reflect “receipts and

expenditures affecting the operation and administration of the

association,” § 38-33.3-317(1)(a), is a factual question that cannot

be resolved against Seaman at this stage of the proceedings. See

21
Denver Post Corp., 255 P.3d at 1083 (“We accept all factual

allegations in the complaint as true and view them in the light most

favorable to the plaintiff.”). Seaman’s claim must be reinstated.

III. Attorney Fees and Costs

¶ 34 In the district court, HGA requested and was awarded attorney

fees and costs pursuant to section 38-33.3-123(1)(c), C.R.S. 2023.

Under that provision, the prevailing party in any action to enforce

or defend the provisions of CCIOA is entitled to reasonable attorney

fees and costs. But because there has been no resolution on the

merits, there is not yet a prevailing party. See DeJean v. Grosz,

2015 COA 74, ¶¶ 44-45; see also C.R.C.P. 54(d). Accordingly, we

reverse the district court’s order awarding HGA its attorney fees and

costs. And for the same reason, we decline to award appellate

attorney fees to either party.

IV. Disposition

¶ 35 We reverse the district court’s judgment and its order

awarding attorney fees and costs to HGA, and we remand for

further proceedings consistent with this opinion.

JUDGE TOW and JUDGE SCHOCK concur.

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