Crystal v. Marrone
Crystal v. Marrone
Crystal v. Marrone
Opinion
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
1
¶ 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).
1
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
1
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.
2
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.
3
¶ 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
4
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).
7
¶ 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
8
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)
10
(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.
11
¶ 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
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
12
(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.
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