Dean v. Casey

23CA0721 Dean v Casey 07-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0721
Arapahoe County District Court No. 21CV31592
Honorable Peter F. Michaelson, Judge

Amy F. Dean, Donner E. Dean, Jr., Merryl Learned, and John R. Walls, Jr.,

Plaintiffs-Appellees,

v.

Stephanie Casey, Trevor Casey, Wendy Brockman, and Clifton M. Brockman,
Jr.,

Defendants-Appellants,

and

Stephen A. Fermelia, Mark Cohen, and Mark Cohen, J.D. L.L.M., a professional
corporation,

Attorneys-Appellants.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE HARRIS
Lum and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 24, 2025

Brown Dunning Walker Fein Drusch PC, Neal K. Dunning, Scott W. Drusch,
Greenwood Village, Colorado, for Plaintiffs-Appellees

Levin Sitcoff PC, Bradley A. Levin, Denver, Colorado; Western Slope Law,
Nelson A. Waneka, Glenwood Springs, Colorado, for Defendants-Appellants
Mortiz Law LLC, Joel A. Mortiz, Stephen A. Fermelia, Denver, Colorado, for
Attorney-Appellant Stephen A. Fermelia

Glade Voogt Lopez Smith Felser, PC, Andrew J. Felser, Denver, Colorado, for
Attorneys-Appellants Mark Cohen and Mark Cohen, J.D., L.L.M.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this neighbor dispute involving the use and maintenance of

two easements, defendants, Stephanie and Trevor Casey and Wendy

and Clifton M. Brockman, appeal the final judgment, entered after a

bench trial, enjoining them from obstructing the equestrian

easement, appointing a receiver to oversee maintenance of the

easements, and assessing attorney fees against them and their

counsel for pursuing frivolous defenses and counterclaims. The

defendants’ counsel separately appeal that portion of the judgment

assessing attorney fees against them.

¶2 We affirm in part, reverse in part, and remand the case to the

trial court for further proceedings.

1
I. Background

¶3 Mountain View Estates is a rural subdivision in Beyers,

Colorado, consisting of twelve approximately thirty-five-acre lots.

The subdivision is accessible by a private dirt and gravel road (the

road easement) and encircled by a forty-foot-wide equestrian trail

(the equestrian easement).

¶4 The plaintiffs (Amy F. and Donner E. Dean, Merryl Learned,

and John R. Walls, Jr.) and the defendants own lots in the

subdivision, as shown below:

The Lots and Easements of
Mountain View Estates

¶5 Ownership is subject to the “Conditions” incorporated into the

owners’ deeds. The Conditions direct, among other things, that

2
“[a]ll easements shall be kept clear in a manner to allow their

intended uses,” and that “[p]urchasers of each lot” are “responsible

for the maintenance of the [road easement].”

¶6 When the Caseys and Brockmans moved to the subdivision in

2016 and 2018 respectively, the “accepted practice in the

community” was that lot owners — including all of the plaintiffs —

had fences and gates placed across the equestrian easement. Some

owners — including some of the plaintiffs — allowed their livestock

to graze on the easement.

¶7 In 2020, the Brockmans erected fencing and gates on either

end of their portion of the equestrian easement, with the intent to

have livestock graze there. The following year, the Caseys built a

fence with a gate across their portion of the easement. Around that

same time, both the Brockmans and the Caseys constructed

shooting berms near the equestrian easement.

¶8 In summer 2021, the Deans decided it was “time for everybody

to come into compliance” with the Conditions, and most of the

plaintiffs took down their fences and gates. When the Brockmans

and Caseys refused to follow suit, the plaintiffs (including Learned,

who still had a fence blocking the equestrian easement) filed this

3
action, asserting claims for trespass and nuisance and seeking

injunctive and declaratory relief against the defendants, based on

their alleged unreasonable interference with the equestrian

easement. (With respect to the declaratory relief claim, the

plaintiffs added all the other lot owners as defendants.)

¶9 The Brockmans and Caseys answered and asserted equitable

defenses and counterclaims. The other lot owners (the defaulted lot

owners) failed to respond to the complaint and collectively

defaulted.

¶ 10 In several orders issued before trial, the court resolved certain

of the defendants’ counterclaims and related issues of law:

• The court agreed with the defendants that the equestrian

easement was “nonexclusive,” and, therefore, the defendants

retained “the right to use the property in common with” the

plaintiffs, “provided [their] use permit[ted] full use and

enjoyment of the easement” by the plaintiffs.

• In a separate order, the court rejected the defendants’ claims

that lot owners were prohibited from maintaining any portions

of the easements located on other owners’ property. Rather,

the court found that maintenance was a “collective obligation”

4
of the lot owners. In its order, the court sua sponte raised the

possibility of appointing a receiver to manage maintenance of

the road and equestrian easements. The plaintiffs consented

to the appointment; the defendants objected.

• In a third order, the court granted the Caseys’ motion for

partial summary judgment on their counterclaim for injunctive

relief and enjoined plaintiffs Walls and Learned from placing

signs in the subdivision and blocking the equestrian

easement.

¶ 11 In preparation for the bench trial, the parties submitted a joint

trial management order (TMO) listing the following remaining claims

and counterclaims to be resolved by the court:

• the plaintiffs’ claims for trespass, nuisance and declaratory

and injunctive relief relating to the defendants’ placement of

fencing, gates, and shooting berms on or near the equestrian

easement;

• the Brockmans’ counterclaims for abuse of process (based on

the plaintiffs’ lawsuit) and declaratory and injunctive relief

(concerning their use of the equestrian easement); and

5
• the Caseys’ counterclaims for invasion of privacy, trespass,

breach of the Conditions, abuse of process (based on Amy

Dean’s application for a protection order against Stephanie

Casey), civil conspiracy, and declaratory and injunctive relief.

¶ 12 At the trial management conference, the court characterized

the case as a “declaratory judgment suit basically by both sides”

concerning the permitted use of the equestrian easement. The

court appeared skeptical that fences and gates across the easement

would be permitted, but it acknowledged that “there is some law on

[the defendants’] side.” The court also expressed skepticism about

the viability of some of the defendants’ counterclaims, including

their abuse of process claims and the Caseys’ civil conspiracy claim,

but after hearing explanations from counsel, it demurred,

recognizing that assessing the claims was “why we’re going to have

a trial.” There was no discussion of the defendants’ equitable

defenses of unclean hands, waiver/laches, or estoppel.

¶ 13 At trial, the defendants’ primary theory of the case was that

their fences and gates would not unreasonably interfere with the lot

owners’ use of the equestrian easement, as evidenced by the fact

that fences and gates had existed on the easement for more than a

6
decade without incident. To that end, each side called an expert

witness to opine on whether various obstructions would interfere

with equestrian activities.

¶ 14 Relatedly, the defendants also elicited evidence to support an

equitable theory that by keeping fences and gates on the easement

until just before the lawsuit was filed (or, in Learned’s case, for

several months afterward), the plaintiffs could not seek to bar the

defendants’ conduct.

¶ 15 After three days of trial, during which the court alternated

between admonishing the defendants for pursuing the defenses and

counterclaims referenced in the TMO and seemingly retracting the

admonishments, the court issued a final order and judgment that,

as relevant here,

• required the defendants to remove any fences, gates, and

berms from the equestrian easement; prohibited any lot owner

from allowing livestock to graze on the equestrian easement;

and required all lot owners to comply with the Conditions;

• entered judgment against Walls on one of the Caseys’

counterclaims for trespass and awarded $800 in damages;

7
• appointed a receiver to manage maintenance of the road and

equestrian easements, including collecting fees from all lot

owners; and

• assessed one half of the plaintiffs’ reasonable attorney fees

against the defendants and their counsel, jointly and severally,

as a sanction for pursuing frivolous, groundless, and

vexatious defenses and counterclaims.

¶ 16 The defendants and their counsel now appeal. We first

address the claims particular to the Brockmans and Caseys and

then turn to the claim raised jointly by the defendants and their

counsel — that the court erred by assessing attorney fees against

them.

II. The Defendants’ Separate Claims on Appeal

¶ 17 The defendants seek reversal of the judgment on the grounds

that (1) the trial court was biased against them, and (2) the court

erred by determining that all lot owners have a right to maintain the

easements and by appointing a receiver.

8
A. The Trial Judge’s Alleged Actual Bias

1. Additional Facts

¶ 18 On the first day of trial, the court acknowledged that it had

not yet determined whether the defendants’ equitable defenses

applied to the plaintiffs’ claims. Accordingly, it admitted evidence

relevant to those defenses.

¶ 19 But a couple of hours later, after the lunch break, the court

informed counsel that equitable defenses did not apply to written

covenants that run with the land. It warned counsel not to “expect

a positive result” if they continued to pursue the defenses.

¶ 20 At the end of the day, when counsel attempted to elicit

testimony relevant to one of the equitable defenses, the court

explained at length that the defenses did not apply and cautioned

counsel that if it “heard any more examination . . . that goes to

those defenses,” counsel might “run into a contempt.”

¶ 21 The next morning, the court clarified that the likely sanction

for pursuing the defenses, which, based on the first day’s evidence,

“look[ed] frivolous,” was not contempt but an award of attorney fees

to the plaintiffs. Nonetheless, when counsel asked whether the

court’s admonitions meant that the equitable defenses “are out,”

9
the court insisted that it had not “made a decision yet” concerning

the viability of the defenses and encouraged the attorney to do

“what [he] th[ought] [wa]s right.”

¶ 22 But later, when counsel attempted to admit evidence that a

plaintiff’s prior conduct was inconsistent with her current

complaints about the condition of the easement, the court

threatened to hold counsel in contempt.

¶ 23 The court also expressed frustration with the Caseys’ civil

conspiracy and invasion of privacy counterclaims and the

Brockmans’ abuse of process counterclaim.

¶ 24 The court understood the Caseys’ civil conspiracy claim to be

based on an allegation that the plaintiffs had attempted to induce

Stephanie Casey into committing some sort of bad behavior in front

of a law enforcement officer. But the court rejected that theory and

warned counsel that if they could not present a more cogent theory,

the court would “hold[] [counsel] in contempt for continuing to”

pursue “unsubstantiated claims.” With respect to the invasion of

privacy claim, the court disagreed that the tort could be committed

on “open property.”

10
¶ 25 But by the third day of trial, after hearing argument from

counsel, the court reconsidered its earlier position, acknowledging

that the Caseys might have a viable theory for both claims.

¶ 26 The court was steadfast in its rejection of the Brockmans’

abuse of process claim, however. Toward the end of trial, the court

demanded that counsel essentially abandon the claim or risk being

held in contempt.

2. Discussion

¶ 27 “A basic principle of our system of justice is that judges ‘must

be free of all taint of bias and partiality.’” People in Interest of A.P.,

2022 CO 24, ¶ 25 (quoting People v. Julien, 47 P.3d 1194, 1197

(Colo. 2002)). Thus, under C.R.C.P. 97, a judge in a civil case must

be disqualified if he is prejudiced or biased against a party or

counsel to the litigation. Bocian v. Owners Ins. Co., 2020 COA 98,

¶ 13. An actual bias is a bias “that in all probability will prevent [a

judge] from dealing fairly with a party.” People in Interest of A.G.,

262 P.3d 646, 650 (Colo. 2011) (alteration in original) (quoting

Julien, 47 P.3d at 1197).

11
¶ 28 The defendants contend that the trial judge’s threats to hold

counsel in contempt demonstrated actual bias1 requiring reversal of

the judgment. Reviewing that claim de novo, see People v.

Jennings, 2021 COA 112, ¶ 27, we disagree.

¶ 29 A judge’s remarks during the course of a trial that are “critical

or disapproving of, or even hostile to, counsel, the parties, or their

cases, ordinarily do not support a bias or partiality challenge.”

People v. Dobler, 2015 COA 25, ¶ 26; see also Liteky v. United

States, 510 U.S. 540, 555-56 (1994) (“Not establishing bias or

partiality . . . are expressions of impatience, dissatisfaction,

annoyance, and even anger, that are within the bounds of what

imperfect [people] . . . sometimes display.”).

¶ 30 The trial judge’s comments here, while somewhat

unprofessional and needlessly dramatic, showed hostility toward

the defendants’ defenses and counterclaims based on the evidence

1 To the extent the defendants argue that the trial judge’s comments

created an appearance of bias requiring disqualification, that
argument is waived based on their failure to file a motion to
disqualify in the trial court. See People in Interest of A.P., 2022 CO
24, ¶ 29 n.2; Rea v. Corr. Corp. of Am., 2012 COA 11, ¶¶ 22-23.
But a claim of actual bias cannot be waived and, therefore, can be
raised for the first time on appeal. See People in Interest of A.G.,
262 P.3d 646, 651 (Colo. 2011).

12
introduced at trial and the court’s own research, not toward the

defendants themselves or their counsel. See Liteky, 510 U.S. at 555

(explaining that opinions formed by the judge based on the evidence

at trial is generally not a basis for claiming bias or partiality). The

record does not show that the trial judge had a “substantial bent of

mind” against counsel such that he could not fairly consider

counsel’s arguments. A.P., ¶ 30 (quoting People v. Drake, 748 P.2d

1237, 1249 (Colo. 1988)). To the contrary, the judge was

sometimes persuaded by counsel’s explanations to (temporarily, at

least) reconsider his previous positions and evidentiary rulings.

¶ 31 Any argument that the trial judge misunderstood the parties’

arguments or the law does not support a finding of actual bias.

“[A]dverse legal rulings by a judge are unlikely to provide grounds

for a bias claim, as they are proper grounds for appeal, not for

recusal.” Id. at ¶ 32.

¶ 32 And without any additional information, we cannot say that

the trial judge’s decision to recuse himself from the case after final

judgment entered and shortly before he left the bench demonstrates

actual bias during the trial. Allegations of bias cannot be based on

13
“mere suspicion, speculation, conjecture, or innuendo.” Bocian,

¶ 44.

¶ 33 For these reasons, we reject the defendants’ claim that the

trial judge evinced actual bias requiring his disqualification.

B. The Maintenance Order and Appointment of a Receiver

¶ 34 Certain of the Conditions addressed maintenance of the

easements:

11. LOT MAINTENANCE
The structures and grounds, including any
open space, equestrian trails, and landscape
or greenbelt area, of each lot shall be
maintained in a neat and attractive manner.
Special attention shall be given to the control
of weeds, which may constitute a fire hazard.

13. EASEMENT
All easements shall be kept clear in a manner
to allow their intended uses.

18. ROAD MAINTENANCE
Purchasers of each lot in the Mountain View
Estates Subdivision are responsible for the
maintenance of the private road known as East
Briarwood Place. This excludes any and all
lots owned by [the developer].

¶ 35 Before trial, in an effort to limit access to their properties, the

defendants requested a ruling that under the Conditions, each lot

owner could perform maintenance only on those portions of the

14
easements located on that owner’s property. The court denied the

request and determined instead that maintenance of the easements

was a “right and obligation of all of the lot owners,” meaning that

any lot owner could perform reasonable maintenance on any part of

the equestrian or road easements.

¶ 36 But the court found that the parties were “incapable of safely

and effectively” maintaining the easements. So, in the final order

and judgment, it appointed a receiver under C.R.C.P. 66(a)(3) to

oversee maintenance duties, including the collection of annual fees

from all lot owners.

¶ 37 On appeal, the defendants contend that the court erred by

determining that each lot owner has a right to perform maintenance

on any portion of the easements and by appointing a receiver. We

agree in part.

¶ 38 “Where there are several owners in common of an easement,

each owner has a right to make reasonable repairs to the easement,

so long as such [repairs] do not injuriously affect a co-owner.” 28A

C.J.S. Easements § 228, Westlaw (database updated May 2025); see

also Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1238

(Colo. 1998) (the dominant estate holder may perform necessary

15
maintenance and make improvements to the easement as long as

the maintenance and improvements do not unreasonably interfere

with the enjoyment of the servient estate); Story v. Bly, 217 P.3d

872, 879 (Colo. App. 2008) (where dominant and servient estate

owners share use of an easement, “it follows that the right to use

the property engenders an equal right and obligation to maintain

the property”), aff’d, 241 P.3d 529 (Colo. 2010).

¶ 39 The co-beneficiaries of an easement are free to determine the

extent of their obligations to keep an easement in repair, but in the

absence of an agreement or when the agreement is silent on this

issue, the general rule applies: the beneficiaries of the easement

generally share the maintenance obligation. See Restatement

(Third) of Prop.: Servitudes § 4.13 (Am. L. Inst. 2000); see also Lazy

Dog, 965 P.2d at 1237 (in the absence of an agreement, certain

“default rules” concerning the parties’ reasonable use and

maintenance of the easement apply).

¶ 40 The defendants say that the Conditions contemplate that each

lot owner “will maintain any easements on their land.” True, but

the fact that each lot owner has a duty to maintain their portion of

the easement is not inconsistent with the general rule that each

16
easement holder has a right to maintain and improve any portion of

the easement.

¶ 41 Nothing in the Conditions prohibits any easement holder from

performing maintenance on a particular part of the equestrian or

road easements. The provision concerning “lot maintenance”

requires that the “equestrian trail” on “each lot” be maintained “in a

neat and attractive manner,” but it does not specify who may or

may not maintain the equestrian trail. If the “lot maintenance”

provision settled the matter, the Conditions would not also include

a separate provision for maintenance of the “easements.” Moreover,

the separate “road maintenance” provision says that “purchasers” of

the lots are responsible for maintenance.

¶ 42 The defendants note that the Conditions do not specifically

provide for a homeowners’ association or a receiver. But the

absence of any such provision does not suggest an intent to

preclude other lot owners from performing maintenance on the

easements.

¶ 43 Accordingly, we discern no error in the court’s order regarding

the right of the easement holders to perform maintenance on the

easements.

17
¶ 44 But we reach the opposite conclusion regarding appointment

of the receiver.

¶ 45 Under C.R.C.P. 66(a), a “receiver may be appointed by the

court in which the action is pending at any time.” The appointment

of a receiver is “an extraordinary remedy that should be employed

with the utmost caution.” United States v. Solco I, LLC, 962 F.3d

1244, 1250 (10th Cir. 2020) (quoting 12 Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2983, Westlaw

(3d ed. database updated Apr. 2020)).

¶ 46 We review the court’s decision to appoint a receiver for an

abuse of discretion. Premier Farm Credit, PCA v. W-Cattle, LLC, 155

P.3d 504, 512 (Colo. App. 2006). A court abuses its discretion if its

ruling is manifestly arbitrary, unreasonable, or unfair. Id.

¶ 47 Neither party requested a receiver or alleged that the lot

owners were incapable of maintaining the easements. Nonetheless,

the court concluded that without the appointment of a receiver to

manage maintenance of the equestrian and road easements, the lot

owners’ use of the easements would be adversely affected. The

court appointed a receiver with the authority to hire contractors,

accountants, and other professionals, and it ordered each of the lot

18
owners to pay an initial retainer fee of $1,000 and an annual

assessment of $2,000 for general maintenance of the easements.

The receiver could obtain a judgment in the amount of any unpaid

assessments and record the lien, allowing the receiver to foreclose

on the lien if the judgment was not satisfied.

¶ 48 We see two problems with the court’s order.

¶ 49 First, in appointing the receiver, the court granted relief

against the defaulted lot owners that was not requested in the

complaint. Under C.R.C.P. 54(c), a “judgment by default shall not

be different in kind from that prayed for in the demand for

judgment.” Because neither party requested the appointment of a

receiver, the court lacked authority to appoint one with respect to

the defaulted lot owners or to order the defaulted lot owners to pay

an annual maintenance fee. See, e.g., Toplitzky v. Schilt, 361 P.2d

970, 972-73 (Colo. 1961) (court lacks authority to order relief

against defaulting party that was not originally requested).

¶ 50 And if the receiver has no authority over the defaulted lot

owners, the receiver’s purpose cannot be accomplished. The court

ordered the receiver to collect fees from all lot owners to cover the

cost of maintaining and repairing the easements. The court did not

19
intend to place the full burden of maintaining the easements on the

few lot owners involved in the litigation, and there would have been

no basis for doing so. Each of the lot owners, as beneficiaries of the

equestrian and road easements, were “obligated to contribute to the

reasonable costs of repair and maintenance” of those easements.

Restatement (Third) of Prop.: Servitudes § 4.13 cmt. e.

¶ 51 Second, the terms imposed were arbitrary. While the lot

owners have a collective obligation to maintain the easements, “[t]he

responsibility of each user should reflect a fair proportion of the

costs,” which will vary depending on the circumstances. Id. In

imposing the terms, the court should have considered factors

including “the amount and intensity of actual use and the value of

other contributions made by the users to improvement and

maintenance of the easement.” Id. But without any explanation,

the court simply ordered that each lot would be assessed an annual

fee of $2,000 — an amount that is not tied to the lot owners’ use of

the easements or to any evidence of the expected annual cost of

maintenance and repairs.

¶ 52 For these reasons, we reverse the court’s order appointing a

receiver.

20
III. Challenge to the Court’s Assessment of Attorney Fees

¶ 53 The defendants and their counsel contend that the trial court

erred in assessing attorney fees against them because (1) the

defenses and counterclaims were not frivolous, groundless, or

vexatious; (2) the amount of the award was arbitrary; and (3) an

award of interest on attorney fees is prohibited.

A. Award of Attorney Fees for Frivolous, Groundless, or Vexatious
Defenses and Counterclaims

1. Legal Principles and Standard of Review

¶ 54 Under section 13-17-102(2), C.R.S. 2024, the court “shall

award . . . reasonable attorney fees against any attorney or party

who has brought or defended a civil action, either in whole or in

part, that the court determines lacked substantial justification.”

“Lacked substantial justification” means “substantially frivolous,

substantially groundless, or substantially vexatious.” § 13-17-

102(4).

¶ 55 A claim or defense is frivolous if the proponent can present no

rational argument based on the evidence or the law to support the

claim or defense. Hawley v. Mowatt, 160 P.3d 421, 427 (Colo. App.

2007). A claim or defense is groundless if the allegations in the

21
complaint or answer are not supported by any credible evidence at

trial. Id. A claim or defense is vexatious if it is asserted or

maintained in bad faith to annoy or harass another; vexatiousness

includes conduct that is “arbitrary, abusive, stubbornly litigious, or

disrespectful of the truth.” In re Estate of Shimizu, 2016 COA 163,

¶ 26 (quoting In re Parental Responsibilities Concerning I.M., 2013

COA 107, ¶ 29).

¶ 56 We review an award of attorney fees under section 13-17-102

for an abuse of discretion. Andres Trucking Co. v. United Fire &

Cas. Co., 2018 COA 144, ¶ 57. A court abuses its discretion where

its decision rests on a misunderstanding or misapplication of the

law, or is manifestly arbitrary, unreasonable, or unfair. Estate of

Shimizu, ¶ 15.

2. The Court Abused Its Discretion by Awarding Attorney Fees in
Connection With the Equitable Defenses and Certain
Counterclaims

¶ 57 We agree with the defendants that the court misapplied the

law when it found the equitable defenses and certain of the

counterclaims frivolous, groundless, and vexatious and awarded

attorney fees in connection those defenses and claims.

22
a. Equitable Defenses

¶ 58 The court interpreted the defendants’ equitable defenses as an

effort to “obtain an order terminating” the equestrian easement

based on a theory that the lot owners had “abandon[ed]” the

easement or otherwise acted in a manner suggesting that the

Conditions were “subject to termination.” The court reasoned that

the defenses were frivolous, as the validity of the easement could

not be “affected by [the] equitable theories.”

¶ 59 But the defendants’ position was not that the easement or the

Conditions had “terminated,” or that the other lot owners had

relinquished their right to use the easement. The equitable

defenses were based on a theory that because the lot owners,

including the plaintiffs, had used the easement for equestrian

activities for more than a decade while maintaining fences and

gates across it, the plaintiffs could not now complain that the

defendants’ conduct interfered with their enjoyment of the easement

or otherwise violated the Conditions.

¶ 60 Under the doctrine of unclean hands, for example, the court

will not consider a request for equitable relief — such as a

mandatory injunction — under circumstances where “the litigant’s

23
own acts offend the sense of equity to which he or she appeals.”

Ajay Sports, Inc. v. Casazza, 1 P.3d 267, 276 (Colo. App. 2000).

The court concluded that the defense did not apply unless the

plaintiffs’ conduct was “outrageous,” but the law requires only

“improper conduct” that “relate[s] directly to the underlying

litigation.” Id. The defendants argued that the plaintiffs’ own

violations of the Conditions (their improper conduct) precluded

them from obtaining equitable relief.

¶ 61 And contrary to the plaintiffs’ argument, the Caseys did not

forfeit their equitable defenses by seeking to enforce the Conditions

against Learned. The defendants’ position was that the Conditions

permitted lot owners to construct fences with unlocked gates on

their property because those improvements did not interfere with

other lot owners’ use of the equestrian easement. But, as the court

found, Learned had constructed a fence without a gate that

completely blocked access to a portion of the easement.

¶ 62 As for the defenses of estoppel and waiver/laches, the court

determined that as a matter of law, those theories could not

“affect[]” the equestrian easement, which was documented in

written covenants that run with the land.

24
¶ 63 According to the court, the estoppel defense was frivolous

because the defendants had “full knowledge of the equestrian

easement prior to purchasing [their] lot[s].” On appeal, the

plaintiffs adopt that reasoning, arguing that the defense was

irrational because a person “cannot ignore express covenants that

an Easement shall be kept clear for its intended use,” even if the

person sees gates and fences on the easement.

¶ 64 But again, the trial court and now the plaintiffs have

misconstrued the defendants’ theory of defense. The defendants

did not deny knowledge of the easement or the Conditions. Rather,

their theory was that the plaintiffs’ conduct led them to reasonably

believe that the Conditions were not incompatible with the

maintenance of fences and gates and the grazing of livestock. See

Barker v. Jeremiasen, 676 P.2d 1259, 1262 (Colo. App. 1984) (The

elements of equitable defense of estoppel are “full knowledge of the

facts; unreasonable delay in the assertion of [an] available remedy;

and intervening reliance by and prejudice to another.”). The court

did not explain why that particular theory was frivolous. See

Padilla v. Ghuman, 183 P.3d 653, 662 (Colo. App. 2007) (where the

trial court awards attorney fees under section 13-17-102 without

25
making specific findings to support the award, the court abuses its

discretion).

¶ 65 And to the extent the trial court concluded that estoppel can

never bar enforcement of written covenants, we are unaware of any

case that supports that proposition. Even when written covenants

are “clear on their face,” “equity may fashion a remedy to effect

justice suitable to the circumstances of the case.” Woodmoor Imp.

Ass’n v. Brenner, 919 P.2d 928, 931 (Colo. App. 1996) (equitable

estoppel barred homeowners’ association from enforcing a

restrictive covenant against a homeowner); see also Lookout

Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.,

867 P.2d 70, 76-77 (Colo. App. 1993) (considering whether

equitable defenses, including estoppel, barred a homeowners’

association from enforcing a covenant). At oral argument, the

plaintiffs claimed that Woodmoor and Lookout Mountain stand for

the proposition that only a homeowners’ association can assert

equitable defenses, but they offered no authority to support that

claim and we are not aware of any.

¶ 66 Finally, the defendants say they had a rational basis for

asserting the defenses of waiver/laches, but our review of the

26
record does not reveal that the defendants actually pursued these

defenses at trial, separate and apart from the other equitable

defenses. The court’s order does not provide any basis for

concluding otherwise.

¶ 67 In sum, we conclude that the court abused its discretion in

awarding attorney fees based on a finding that the equitable

defenses were frivolous, groundless, or vexatious.

b. Trespass

¶ 68 The Caseys asserted a counterclaim for three incidences of

trespass. The court found that Walls and Amy Dean “at times have

intentionally entered upon” the Caseys’ property, and that one of

Walls’ trespasses caused $800 in damages.

¶ 69 Nonetheless, the court appeared to find that certain of the

trespass claims were frivolous or groundless based on a lack of

evidence that the trespasses caused “physical damage to the

Caseys’ property.” Assuming this was the basis of the court’s

frivolousness finding, the court erred.

¶ 70 Ordinarily, to prove a trespass, the proponent of the claim

must show that another person physically intruded on her property

without permission; the proponent need not show physical damage.

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Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 389 (Colo. 2001)

(“By intentionally entering the land possessed by someone else, or

causing a thing or third person to enter the land, an individual

becomes subject to liability for trespass, whether or not he caused

harm to any legally protected interest of the landowner.”). A

showing of physical damage is necessary only when the trespass

involves an intangible intrusion. Id.

¶ 71 The trespass counterclaim did not involve allegations of an

intangible intrusion. Thus, the court misapplied the law in

determining that the claim was frivolous, groundless, or vexatious

because the Caseys failed to demonstrate physical damage.

¶ 72 And contrary to the plaintiffs’ argument on appeal, the fact

that their trespasses might have been “innocent” or “trivial” is

irrelevant. Liability for trespass requires only an intent to do the

act that itself constitutes the intrusion. See Antolovich v. Brown

Grp. Retail, Inc., 183 P.3d 582, 603 (Colo. App. 2007). A culpable

state of mind is not an element of the tort.

¶ 73 Thus, the award of attorney fees related to the trespass claim

cannot stand.

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c. Intrusion Upon Seclusion

¶ 74 The Caseys asserted a counterclaim for invasion of privacy by

intrusion upon seclusion,2 supported by evidence that Walls had

repeatedly parked at the entrance to the Caseys’ driveway and

stared or sometimes honked and yelled at Stephanie Casey while

she was in the house.

¶ 75 As noted, by the last day of trial, the court appeared to agree

that the Caseys had a viable invasion of privacy claim.

Nonetheless, in the final order and judgment, the court found that

the claim lacked a “legal basis.” According to the court, an

intrusion upon seclusion claim could not be based on acts

committed by a person “present on a common road or other

common space,” unless the person used “an enhanced viewer, such

as a camera,” to penetrate into the other person’s home.

¶ 76 To prevail on a claim for intrusion upon seclusion, the Caseys

had to show that another person “intentionally intruded, physically

2 In Colorado, an invasion of privacy claim encompasses three

distinct torts: unreasonable intrusion upon the seclusion of
another, unreasonable publicity given to another’s private life, and
appropriation of another’s name or likeness. Pearson v. Kancilia, 70
P.3d 594, 598-99 (Colo. App. 2003).

29
or otherwise, upon [their] seclusion or solitude, and that such

intrusion would be considered offensive by a reasonable person.”

Doe v. High-Tech Inst., Inc., 972 P.2d 1060, 1065 (Colo. App. 1998).

¶ 77 The court’s interpretation of the claim is not supported by the

relevant authority. True, a claim would not lie if Stephanie Casey’s

“appearance [wa]s public and open to the public eye.” Restatement

(Second) of Torts § 652B cmt. c (Am. L. Inst. 1977), Westlaw

(database updated Oct. 2024). But the fact that Walls was in a

public place would not categorically defeat the claim, much less

render it frivolous, if he, from his public vantage point, nevertheless

intruded on Stephanie Casey’s seclusion.

¶ 78 Under the court’s interpretation of the law, a person who

stands on a public sidewalk, only feet away from another person’s

home, and yells obscenities for hours at the person inside is not

liable for intruding on the other person’s seclusion. That

interpretation disregards that one “type[] of invasion intrinsic in the

tort of intrusion upon seclusion [is] . . . harassment.” Wolf v.

Regardie, 553 A.2d 1213, 1217 (D.C. 1989); see also Doe, 972 P.2d

at 1067 (recognizing that repeated and harassing phone calls give

rise to an intrusion upon seclusion claim).

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¶ 79 To the extent the court relied on Sundheim v. Board of County

Commissioners, 904 P.2d 1337 (Colo. App. 1995), to support the

frivolousness finding, its reliance was misplaced. In that case, the

division affirmed summary judgment against the plaintiffs on their

invasion of privacy claim where the county’s investigator observed

things on the premises either “plainly visible to the public” or visible

to him because he had been “invited onto the property” by the

lessee. Id. at 1351. The division noted, though, that business

premises are “open to intrusions that would not be permissible in

purely private circumstances.” Id. Given the inapposite context,

Sundheim is not instructive here.

¶ 80 The court’s only basis for finding the invasion of privacy claim

frivolous, groundless, or vexatious amounted to a misapplication of

the law. Thus, we conclude that the court abused its discretion in

awarding attorney fees in connection with this claim.

3. The Court Did Not Abuse Its Discretion by Awarding Attorney
Fees in Connection with the Remaining Counterclaims

¶ 81 We disagree, however, that the court abused its discretion by

awarding attorney fees in connection with the defendants’

counterclaims for abuse of process and civil conspiracy.

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a. Abuse of Process

¶ 82 The Caseys asserted an abuse of process counterclaim against

all plaintiffs based on Amy Dean’s application for a protection order

against Stephanie Casey. The Brockmans asserted an abuse of

process counterclaim based on the plaintiffs’ filing of the instant

lawsuit.

¶ 83 To prove an abuse of process claim, the proponent must

establish “(1) an ulterior purpose for the use of a judicial

proceeding; (2) willful action in the use of that process which is not

proper in the regular course of the proceedings, i.e., use of a legal

proceeding in an improper manner; and (3) resulting damage.”

Parks v. Edward Dale Parrish LLC, 2019 COA 19, ¶ 12 (quoting

Mackall v. JPMorgan Chase Bank, N.A., 2014 COA 120, ¶ 39).

¶ 84 The second element — improper use — is “[t]he essential

element of an abuse of process claim,” and it is distinct from the

“ulterior purpose” element. Active Release Techs., LLC v. Xtomic,

LLC, 2017 COA 14, ¶ 6 (citations omitted). The improper use must

involve an “actual court process” that is “unrelated to, or outside

the scope of, the action filed.” Id. at ¶¶ 9-10.

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¶ 85 The trial court found that the defendants had failed to present

any evidence to support the improper manner element.

¶ 86 On appeal, the Caseys say that, based on the timing, a

“reasonable inference is that the [application for a protection order]

was filed to intimidate and/or harass [Stephanie] Casey or obtain

an advantage in [the easement dispute].” That cursory argument,

styled in the disjunctive, demonstrates that the Caseys still have

not developed any cognizable theory of the claim. Nor do they point

to any evidence showing that the protection order proceeding was

used to gain leverage or otherwise coerce the Caseys into taking

some action.

¶ 87 The Brockmans do not attempt to show the improper use of a

legal proceeding or process that is “unrelated to, or outside the

scope of, the action filed.” Id. Their argument is only that the

plaintiffs filed “the instant lawsuit” for an ulterior purpose. But “[i]f

the action is confined to its regular and legitimate function in

relation to the cause of action stated in the complaint[,] there is no

abuse, even if the plaintiff had an ulterior motive in bringing the

action or if he knowingly brought suit upon an unfounded claim.”

Colo. Cmty. Bank v. Hoffman, 2013 COA 146, ¶ 37 (quoting

33
Sterenbuch v. Goss, 266 P.3d 428, 439 (Colo. App. 2011)). In other

words, the mere filing of a lawsuit cannot be the basis of an abuse

of process claim.

¶ 88 Accordingly, we conclude that the trial court did not abuse its

discretion in awarding attorney fees in connection with these

counterclaims.

b. Civil Conspiracy

¶ 89 The Caseys asserted a counterclaim for civil conspiracy,

alleging that the plaintiffs conspired to harass them and to induce

them to commit an illegal act in retaliation for the Caseys’ refusal to

consent to proposed amendments to the Conditions. At trial, the

Caseys also claimed that the plaintiffs conspired to invade their

privacy.

¶ 90 The elements of civil conspiracy are (1) an object to be

accomplished; (2) an agreement by two or more persons on a course

of action to accomplish that object; (3) one or more unlawful overt

acts; and (4) resulting damages. See Rosenblum v. Budd, 2023 COA

72, ¶ 51. Civil conspiracy is a derivative cause of action. Double

Oak Contr., L.L.C. v. Cornerstone Dev. Int’l, L.L.C., 97 P.3d 140, 146

(Colo. App. 2003), overruled on other grounds by L.H.M. Corp., TCD

34
v. Martinez, 2021 CO 78, ¶ 24. “If the acts alleged to constitute the

underlying wrong provide no cause of action, then there is no cause

of action for the conspiracy itself.” Id.

¶ 91 The court found that the Caseys had failed to present any

evidence that the plaintiffs agreed to pursue any unlawful overt act.

¶ 92 On appeal, the Caseys say the plaintiffs “conspired to harass

them and get them in trouble with the law.” They point to a group

text discussing a plan to “goad” Stephanie Casey into committing a

trespass and to a letter from the Deans recommending the

formation of an “HOA-like entity.” But these acts are not unlawful.

As for Walls’ conduct in driving around the Caseys’ home, the

Caseys did not present any evidence that the plaintiffs had a part in

Walls’ decision to engage in that conduct. Nor was there evidence

that the plaintiffs formed an agreement to invade the Caseys’

privacy.

¶ 93 While a civil conspiracy may be implied by a course of conduct

and other circumstantial evidence, a court may not infer a

conspiracy absent some proof of an agreement. See Rosenblum,

¶ 52. The proponent of the claim must present “some indicia of

35
agreement in an unlawful means or end.” Id. (quoting Schneider v.

Midtown Motor Co., 854 P.2d 1322, 1327 (Colo. App. 1992)).

¶ 94 Because the Caseys failed to present any evidence to support

their civil conspiracy claim, we cannot say that the court abused its

discretion in awarding attorney fees in connection with this claim.

B. Attorney Fee Issues Likely to Arise on Remand

¶ 95 Having concluded that the court abused its discretion in

awarding attorney fees in connection with the defendants’ equitable

defenses and certain of the counterclaims, we must reverse that

portion of the judgment and remand to the trial court for

reconsideration of an award of fees.

¶ 96 In light of our disposition, we need not resolve the defendants’

other challenges to the attorney fee award. However, should those

challenges arise on remand, we note that a “movant must . . .

establish a reasonable proration of attorney fees incurred relative to

the defense of a frivolous or groundless claim.” Farmers Reservoir &

Irrigation Co. v. City of Golden, 113 P.3d 119, 126 (Colo. 2005).

Here, the trial judge sua sponte awarded the plaintiffs one half of

their attorney fees without requiring the plaintiffs to show any

36
connection between the frivolous counterclaims and the fees

incurred.

¶ 97 Additionally, we agree with the defendants that a court may

not award interest on attorney fees awarded under section 13-17-

102. See id. at 133-35.

IV. The Plaintiffs’ Request for Appellate Attorney Fees

¶ 98 The plaintiffs seek an award of their appellate attorney fees

under C.A.R. 39.1, contending that the defendants’ appeal is

frivolous and groundless.

¶ 99 But the defendants have prevailed on a number of their

claims, see Andres Trucking Co., ¶ 62 (declining to award appellate

attorney fees when the other party prevailed on appeal), and while

they did not prevail on others, we do not agree that an award of fees

is warranted, see Glover v. Serratoga Falls LLC, 2021 CO 77, ¶ 70

(noting that the court awards appellate attorney fees only in clear

and unequivocal cases of egregious conduct where no rational

argument is presented).

V. Disposition

¶ 100 Those portions of the judgment appointing a receiver and

assessing $97,651.68 in attorney fees and costs against the

37
defendants and their counsel, jointly and severally, pursuant to

section 13-17-102, are reversed, and the case is remanded for

reconsideration of an award of attorney fees. In all other respects,

the judgment is affirmed.

JUDGE LUM and JUDGE GRAHAM concur.

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