2001 Beaver Creek v. Malahide

23CA1519 2001 Beaver Creek v Malahide 07-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1519
Eagle County District Court No. 18CV30207
Honorable Jonathan K. Shamis, Judge

2001 Beaver Creek Point Association, Inc., a Colorado nonprofit corporation,

Plaintiff-Appellee and Cross-Appellant,

v.

Malahide, LLC, a Colorado limited liability company,

Defendant-Appellant and Cross-Appellee.

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

Division VI
Opinion by JUDGE YUN
Tow and Sullivan, JJ., concur

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

Sweetbaum Miller PC, Alan D. Sweetbaum, Andrew S. Miller, Denver, Colorado,
for Plaintiff-Appellee and Cross-Appellant

Caplan and Earnest LLC, Rohn K. Robbins, Elliot Hood, Travis J. Miller,
Boulder, Colorado, for Defendant-Appellant and Cross-Appellee
¶1 In this dispute over a homeowner’s attempts to construct

improvements to a residential property, the defendant, Malahide,

LLC (Homeowner), appeals, and the plaintiff, 2001 Beaver Creek

Point Association, Inc. (the Association), cross-appeals portions of

the district court’s judgment. Both parties also appeal the court’s

denial of attorney fees and costs. We affirm in part, reverse in part,

and remand the case to the district court for further findings.

I. Background

¶2 Homeowner owns one of five homes in a common interest

community in Avon, Colorado, established under the Colorado

Common Interest Ownership Act (CCIOA), §§ 38-33.3-101 to -401,

C.R.S. 2024, and managed by the Association. Homeowner’s

property is subject to the “Declaration of Covenants, Conditions,

Restrictions and Easements for 2001 Beaver Creek Point” (the

Declaration), which contains provisions for architectural control

and design review by the Association’s executive board to ensure

that “all modifications to structures . . . conform to and harmonize

with existing surroundings and structures.” The Association

enforces the Declaration.

1
¶3 Beginning in 2015, Homeowner repeatedly sought the

Association’s approval to build an addition to its property including

a deck and, in later proposals, a “garage-like storage area” and a

solar panel roof above the deck. The Association denied these

requests on various grounds. In 2018, the Association filed a

lawsuit against Homeowner, seeking, as relevant here, a permanent

injunction to stop Homeowner from constructing the addition

without the Association’s written consent. In response, Homeowner

asserted counterclaims for breach of covenant, breach of the

statutory duty of good faith, see § 38-33.3-113, C.R.S. 2024, breach

of the implied covenant of good faith and fair dealing, and breach of

fiduciary duty. To support these counterclaims, Homeowner

asserted, as relevant here, that the Association had (1) failed to

enforce the Declaration “in a uniform and nondiscriminatory

manner”; (2) denied the proposed addition in an “arbitrary and

capricious manner,” in violation of section 38-33.3-302(3)(b), C.R.S.

2024; and (3) “effectively prohibit[ed]” the installation of a renewable

energy device, in violation of section 38-33.3-106.5(1.5), C.R.S.

2024. Homeowner also raised these three assertions as affirmative

defenses.

2
¶4 Following a five-day bench trial, the district court denied the

Association’s request for an injunction. The court found that “the

Association [had] repeatedly, arbitrarily, and capriciously rejected”

Homeowner’s proposals for an addition to its property and that “the

threatened injury, the theoretical potential that [Homeowner] goes

forward with its proposed addition, does not outweigh the harm

that an injunction may cause to [Homeowner]. [Homeowner] will be

harmed by the injunction since it validates the arbitrary and

capricious [behavior] of the Association . . . .”

¶5 Turning to Homeowner’s four counterclaims, the court noted

that “[Homeowner’s] breach of covenant, breach of good faith,

breach of the implied covenant of good faith and fair dealing, and

breach of fiduciary duty claims all question whether the

Association’s denial of [Homeowner’s] proposed addition was made

in good faith” and was “not arbitrary or capricious.” The court

found that, based on the evidence presented at trial, (1) “the

Association failed to apply and enforce [its] covenants in a uniform

and nondiscriminatory manner,” and (2) “[t]he decision by the

Association’s [b]oard to deny [Homeowner’s] proposed addition

was . . . arbitrary and capricious.”

3
¶6 Next, after determining that this case did not involve any

written instrument restricting the installation of a renewable energy

device, see § 38-30-168, C.R.S. 2024, the court turned to

Homeowner’s argument that the Association had “effectively

prohibit[ed]” the installation of a renewable energy device through

its conduct, in violation of section 38-33.3-106.5(1.5). The court

found that the Association had not violated the statute because it

had not “prohibited the installation of solar panels” but rather

prohibited “an elaborate expansion of a home that happens to

include solar panels on the roof.”

¶7 Finally, the court determined that, for the purpose of awarding

attorney fees and costs to the prevailing party, see

§ 38-33.3-123(1)(c)(I), C.R.S. 2024, neither party prevailed. The

court explained this ruling by noting that (1) it had ruled against

the Association on its claim for a permanent injunction and (2) it

had not found in favor of Homeowner “on any of its counterclaims

or defenses.”

¶8 Homeowner now appeals, and the Association cross-appeals.

4
II. Analysis

¶9 Homeowner contends that the district court erred by

(1) determining that it did not prevail on any of its counterclaims or

defenses; (2) misapplying section 38-33.3-106.5(1.5);

(3) misallocating the burden of proof; and (4) finding that, for the

purpose of awarding attorney fees and costs, neither party

prevailed. The Association, for its part, contends that the court

erred by finding that it acted in an arbitrary and capricious

manner. And both parties request their attorney fees and costs

incurred in the district court and on appeal. We begin with the

Association’s contention, then address each of Homeowner’s

contentions and the parties’ fee requests.

A. Arbitrary and Capricious Conduct

¶ 10 The Association contends that the district court erred by

finding that it rejected Homeowner’s proposed addition in an

arbitrary and capricious manner. We disagree.

1. Standard of Review

¶ 11 A district court’s judgment following a bench trial presents a

mixed question of fact and law. State ex rel. Weiser v. Ctr. for

Excellence in Higher Educ., Inc., 2023 CO 23, ¶ 33. “We review the

5
court’s factual findings for an abuse of discretion and its legal

conclusions de novo.” Id. In doing so, we defer to the district

court’s credibility findings and its assessment of the weight and

probative effect of the evidence. Amos v. Aspen Alps 123, LLC, 2012

CO 46, ¶ 25; Saturn Sys., Inc. v. Militare, 252 P.3d 516, 521 (Colo.

App. 2011). It is not our role to decide the facts or substitute our

judgment for that of the district court, and we will not disturb the

court’s findings of fact “unless they are so clearly erroneous as to

find no support in the record.” Saturn Sys., 252 P.3d at 521.

¶ 12 “The determination of whether the exercise of powers by a

homeowners’ association has been reasonable or arbitrary is a

factual question.” Woodward v. Bd. of Dirs. of Tamarron Ass’n of

Condo. Owners, 155 P.3d 621, 625 (Colo. App. 2007).

2. Law and Discussion

¶ 13 CCIOA prohibits a homeowners’ association from exercising its

powers to approve or disapprove a homeowner’s plans in an

arbitrary and capricious manner. § 38-33.3-302(3)(b) (“Decisions

concerning the approval or denial of a unit owner’s application for

architectural or landscaping changes shall be made in accordance

with standards and procedures set forth in the declaration or in

6
duly adopted rules and regulations or bylaws of the association,

and shall not be made arbitrarily or capriciously.”). A “[c]apricious

or arbitrary exercise of discretion” occurs when a decision-making

body (1) “neglect[s] or refus[es] to use reasonable diligence and care”

to procure evidence it is authorized to consider; (2) fails to “give

candid and honest consideration to evidence before it”; or (3) bases

its decision on conclusions from the evidence that “reasonable

persons fairly and honestly considering the evidence could not

reach.” Rice v. Auraria Higher Educ. Ctr., 131 P.3d 1096, 1100

(Colo. App. 2005).

¶ 14 Here, the district court determined that the Association acted

in an arbitrary and capricious manner based on the following

findings:

• In 2015, when Homeowner first inquired about the

process for submitting plans to construct a deck, the

president of the Association’s board responded that the

Association had already held a meeting and rejected the

deck proposal. The decision was made without notice to

Homeowner of the meeting and without allowing

Homeowner to present and explain its plans.

7
• In 2018, when Homeowner inquired again about

constructing an addition to its property, the Association

once more denied permission “without reviewing any

plans or specifications.” Several months later, the

Association sent Homeowner a letter “add[ing] different

reasons for [its] denial of the project.”

• Later that year, Homeowner submitted plans for the

project to the Town of Avon, which conducted a public

hearing. The Association’s board president attended the

hearing and stated that the Association would “deny

[Homeowner’s project] in any form.”

• In 2019, Homeowner submitted plans for the addition to

the Association again. The Association’s board president

“drafted the minutes denying the project in advance of

the meeting.” At the meeting, the Association voted to

deny the project, offering yet another new set of reasons.

• The reasons proffered by the Association for denying

Homeowner’s plans “continued to change” at a hearing in

2019, where the board president “testified to further

reasons never discussed with [Homeowner].”

8
• “The Association’s assertion that the project would

encroach on the drainage ditch, the driveway, and the

snow storage easement seems to be refuted by the survey

showing the location” of Homeowner’s property.

• “The Association’s assertion of a visibility/safety issue

and a privacy issue is refuted by [the district court

judge’s] site visit before trial.”

• “The Association did not attempt to negotiate or

troubleshoot any of its concerns . . . , nor did the

Association retain any professionals to study the alleged

drainage or safety concerns.”

• In 2022, Homeowner submitted “revised plans that

reoriented the solar project so the panels would no longer

be visible from [the Association board president’s] home

to again address the concerns of the Association. The

Association refused to hold a meeting to view the

proposal, demanding instead that to obtain review,

[Homeowner] would need to withdraw its original

submissions, agree the Association acted in good faith,

9
stipulate to a permanent injunction on those plans, and

pay all of the Association’s attorney fees.”

¶ 15 The Association does not dispute any of these findings.

Rather, it argues that the district court gave too much weight to

certain evidence (such as the fact that the original architectural

drawings for the community included a patio in the location of

Homeowner’s proposed deck) and failed to assign sufficient weight

to other evidence (such as testimony by the original developer

concerning efforts to maximize privacy for each home in the

community). But it is not our role to reweigh the evidence. See

Amos, ¶ 25.

¶ 16 The Association further argues that the record does not

support the district court’s finding that “there is an inference that

proposals within the original building envelope would be favored”

such that “[t]he Association should have had an expectation that

[Homeowner] would use its unbuilt building envelope.” But even

assuming that this one finding is erroneous, the Association fails to

address the district court’s extensive findings that the Association

denied Homeowner’s plans without reviewing them, that the

reasons for the denial continued to change, or that some of those

10
reasons appeared pretextual because they were “refuted” by the

evidence. Thus, because the court’s determination that the

Association rejected Homeowner’s plans in an arbitrary and

capricious manner is not “so clearly erroneous as to find no support

in the record,” Saturn Sys., 252 P.3d at 521, we will not disturb it

on appeal.

¶ 17 We are not persuaded otherwise by the Association’s argument

that the district court based its ruling on an incorrect legal

standard because the court noted that “finding ‘that reasonable

[persons] fairly and honestly considering the evidence must reach

contrary conclusions’ is impossible under the circumstances.” See

Rice, 131 P.3d at 1100 (A “[c]apricious or arbitrary exercise of

discretion” occurs when a decision-making body reaches

conclusions from the evidence that “reasonable persons fairly and

honestly considering the evidence could not reach.”). First, the

district court did not explain this statement and indeed

contradicted it in the next two sentences, where it stated that “[t]he

relevant evidence shows that the proposed addition would not

significantly impact views and privacy of other residents, yet it was

consistently rejected when submitted by [Homeowner] . . . . The

11
Court must find that a reasonable person would reach the contrary

conclusion under this circumstance.” And second, drawing

conclusions from the evidence that “reasonable persons fairly and

honestly considering the evidence could not reach” is only one of

the ways that a decision-making body can exercise its discretion in

an arbitrary and capricious manner. Id. A “[c]apricious or arbitrary

exercise of discretion” also occurs when a decision-making body

“neglect[s] or refus[es] to use reasonable diligence and care” to

procure evidence it is authorized to consider, or when it fails to

“give candid and honest consideration to evidence before it.” Id.

The district court’s findings that the Association repeatedly

(1) denied Homeowner’s plans without reviewing them and

(2) offered shifting, pretextual reasons for the denial are sufficient to

support its determination that the Association acted in an arbitrary

and capricious manner.

B. Homeowner’s Counterclaims and Defenses

¶ 18 Turning to Homeowner’s contentions, Homeowner argues,

first, that the district court erred by determining that it did not

prevail “on any of its counterclaims or defenses.” We conclude

additional findings are necessary.

12
¶ 19 Following a bench trial, “the court shall find the facts specially

and state separately its conclusions of law thereon.” C.R.C.P. 52.

The purpose of the requirement for specific findings of fact and

conclusions of law under Rule 52 “is to give the appellate court a

clear understanding of the grounds for the trial court’s decision.” In

re Marriage of Rose, 574 P.2d 112, 113 (Colo. App. 1977). The

court’s findings must be “sufficiently comprehensive to provide a

basis for [its] decision.” Bonidy v. Vail Valley Ctr. for Aesthetic

Dentistry, P.C., 232 P.3d 277, 281 (Colo. App. 2010) (quoting

Mowry v. Jackson, 343 P.2d 833, 836 (Colo. 1959)).

¶ 20 The district court began its discussion of Homeowner’s

counterclaims by noting that “[Homeowner’s] breach of covenant,

breach of good faith, breach of the implied covenant of good faith

and fair dealing, and breach of fiduciary duty claims all question

whether the Association’s denial of [Homeowner’s] proposed

addition was made in good faith” and was “not arbitrary or

capricious.” It then made two specific findings: (1) “the Association

failed to apply and enforce [its] covenants in a uniform and

nondiscriminatory manner,” and (2) “[t]he decision by the

Association’s [b]oard to deny [Homeowner’s] proposed addition

13
was . . . arbitrary and capricious.” The court did not analyze any of

Homeowner’s four counterclaims individually or discuss them again

until the end of its order, when it stated, without explanation, that

Homeowner did not prevail “on any of its counterclaims or

defenses.”1

¶ 21 We are thus unable to discern the basis for the district court’s

judgment against Homeowner on its counterclaims or defenses. “In

the absence of sufficient findings of fact and conclusions of law to

permit appellate review, the proper remedy is a remand to the trial

court with directions to make the requisite findings.” Mission Viejo

Co. v. Willows Water Dist., 818 P.2d 254, 261 n.12 (Colo. 1991).

Accordingly, we reverse and remand the case to the district court

with directions to make findings of fact and conclusions of law

1 In its answer to the Association’s complaint, Homeowner asserted

that the Association had selectively enforced the Declaration and
denied the proposed addition in an arbitrary and capricious manner
both in support of its counterclaims and as affirmative defenses.
Whether styled as counterclaims or affirmative defenses, both
assertions were “issue[s]” in the litigation for the purpose of
determining which party prevailed, see Part II.E infra. Archer v.
Farmer Bros. Co., 90 P.3d 228, 230 (Colo. 2004) (A prevailing party
is one who “prevails on a significant issue in the litigation” and
receives some of the benefits sought.).

14
regarding Homeowner’s counterclaims and defenses sufficient to

permit meaningful appellate review.2

C. Renewable Energy Statute

¶ 22 Homeowner argues that the district court erred by finding that

the Association had not “effectively prohibit[ed]” the installation of a

renewable energy generation device, in violation of

§ 38-33.3-106.5(1.5). We disagree.

2 We recognize that, on August 2, 2023, the district court entered a

post-trial order outside the sixty-three-day period set forth in
C.R.C.P. 59(j), thus making the order void. See Durdin v. Cheyenne
Mountain Bank, 98 P.3d 899, 902 (Colo. App. 2004). The order
explained that, despite finding that “the Association acted
arbitrarily and capriciously in its process of considering”
Homeowner’s proposal, the court nonetheless concluded that
Homeowner did not prevail on any of its counterclaims because the
evidence presented at trial “suggest[ed] that [Homeowner’s] proposal
may have violated local building codes.” The court also briefly
mentioned Homeowner’s potential violation of local building codes
in its findings of fact and conclusions of law entered after trial. But
the court did not suggest that the potential violation was the reason
the Association denied Homeowner’s proposal or explain how the
potential violation relates to Homeowner’s counterclaims for breach
of covenant, breach of the statutory duty of good faith, breach of the
implied covenant of good faith and fair dealing, or breach of
fiduciary duty. Although the post-trial order is void, we remind the
court that, on remand, it must make findings of fact and
conclusions of law sufficient for us to understand the basis of its
ruling.

15
1. Standard of Review

¶ 23 As noted above, when reviewing a district court’s judgment

after a bench trial, we review the court’s factual findings for an

abuse of discretion and its legal conclusions de novo. Ctr. for

Excellence in Higher Educ., ¶ 33.

¶ 24 Statutory interpretation is a question of law that we review de

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

Vista Ridge, LLC, 2013 COA 26, ¶ 8. We analyze a statute

according to its plain language and apply it as written if it is clear

and unambiguous on its face. Id. at ¶ 9.

2. Governing Law

¶ 25 Section 38-33.3-106.5(1.5) provides that, “[n]otwithstanding

any provision in the declaration, bylaws, or rules and regulations of

the association to the contrary, an association shall not effectively

prohibit renewable energy generation devices, as defined in section

38-30-168.” The definition of a “renewable energy generation

device” in section 38-30-168 includes “[a] solar energy device, as

defined in section 38-32.5-100.3.” In turn, section 38-32.5-100.3,

C.R.S. 2024, defines a “solar energy device” as “a solar collector or

other device or a structural design feature of a structure which

16
provides for the collection of sunlight and which comprises part of a

system for the conversion of the sun’s radiant energy into thermal,

chemical, mechanical, or electrical energy.”

¶ 26 A division of this court interpreted the definition of “solar

energy device” in section 38-32.5-100.3 in Governor’s Ranch

Homeowner’s Ass’n v. Gunther, 705 P.2d 1011 (Colo. App. 1985). In

that case, a homeowner had installed an evaporative cooler and

solar panels on his roof. Id. at 1012. Based on evidence that “hot

water from the solar panels was used to power the evaporative

cooler during the summer and to heat the house during the winter,”

the trial court found that “the evaporative cooler together with the

solar panels constituted an integrated solar energy device under

[section] 38-32.5-100.3.” Id. On appeal, the division ruled that

[a] mere physical connection between a solar
energy device [i.e., the solar panels] and a
separate device [i.e., the evaporative cooler] . . .
is insufficient to bring the separate device
within the protection of [a statute limiting the
effect of restrictive covenants on solar energy
devices]. However, we hold that if, together,
the devices constitute an integrated solar
energy device, then the total unit is protected
by [the statute].

17
Id. As to whether “the evaporative cooler and the solar panels

together constituted such an integrated solar energy device,” the

division expressed no opinion but merely noted that “[w]e will not

substitute our findings of fact for those of the trial court.” Id. at

1012-13.

3. Discussion

¶ 27 In 2018, when the Association filed this lawsuit, Homeowner’s

proposed addition consisted of “a garage-like storage area,” a deck,

and a “solar array mounted above [the deck] as a roof.” In support

of its counterclaims for breach of the statutory duty of good faith,

breach of the implied covenant of good faith and fair dealing, and

breach of fiduciary duty, Homeowner asserted that the Association

had violated section 38-33.3-106.5(1.5) by “effectively prohibit[ing]”

the installation of a renewable energy generation device.

¶ 28 The district court rejected Homeowner’s argument, finding

that there was no evidence in the record that the Association had

effectively prohibited solar panels. The court explained that

[w]hat the Association has done in this
instance is deny the building of an addition
that contains solar panels on top of it. It has
not prohibited solar panels generally or the
installation of solar panels on existing

18
structures. . . . [T]he addition [is] an elaborate
expansion of a home that happens to include
solar panels on the roof. A homeowner cannot
be allowed to blanketly justify constructing
any addition to their home over the objections
of their homeowners’ association simply
because the addition is intended to include
solar panels.

¶ 29 Homeowner argues that the district court misread Governor’s

Ranch, claiming that, like the solar panels and evaporative cooler in

that case, its entire proposed addition should be considered one

integrated solar energy device within the meaning of section

38-32.5-100.3. But the trial court’s finding of integration in

Governor’s Ranch was based on the fact that the solar panels were

used to power the evaporative cooler. 705 P.2d at 1012. Here, in

contrast, as the district court noted, the garage and deck have

“nothing to do with the solar panels” on the roof over the deck —

they are “not integrated in any way.” While the solar panels and the

underlying structures may be physically connected, “[a] mere

physical connection between a solar energy device and a separate

device . . . is insufficient” to bring both devices within the meaning

of a “solar energy device” as defined in section 38-32.5-100.3. Id.

19
¶ 30 We therefore conclude that the district court did not err by

determining that Homeowner’s proposed addition was not an

integrated solar energy device and that, consequently, the

Association’s denial of the addition did not amount to an effective

ban on a renewable energy generation device in violation of section

38-33.3-106.5(1.5).3

D. Burden of Proof

¶ 31 Homeowner contends that the district court erred by

misallocating the burden of proof with respect to the issue of good

faith. We discern no error.

¶ 32 “Determining which party bears the burden of proof is a

question of law, which we review de novo.” LeHouillier v. Gallegos,

2019 CO 8, ¶ 18.

3 Homeowner further asserts that the district court erred by

misallocating the burden of proof as to whether the Association
violated section 38-33.3-106.5(1.5), C.R.S. 2024. But the court did
not address the burden of proof; rather, both the court’s ruling and
Homeowner’s argument turn on the application of Governor’s Ranch
Homeowner’s Ass’n v. Gunther, 705 P.2d 1011 (Colo. App. 1985), to
this case. Homeowner does not explain how any misallocation of
the burden of proof might have affected the court’s analysis.
Accordingly, we discern no error.

20
¶ 33 The burden of proof in a civil case generally lies with the party

asserting a claim. Kim v. Grover C. Coors Tr., 179 P.3d 86, 90 (Colo.

App. 2007). In this case, the Association sought to enforce the

Declaration against Homeowner by obtaining a permanent

injunction to prevent Homeowner from constructing its proposed

addition without the Association’s written permission. Under

section 38-33.3-113, “[e]very contract or duty governed by [CCIOA]

imposes an obligation of good faith in its performance or

enforcement.” It is undisputed that the Declaration is a contract

governed by CCIOA. Accordingly, as both parties agree, the

Association bore the burden on its permanent injunction claim of

proving that its denial of Homeowner’s addition was made in good

faith. See Gleneagle Civic Ass’n v. Hardin, 205 P.3d 462, 469 (Colo.

App. 2008) (A homeowner’s association’s “refusal to approve plans

must be reasonable and made in good faith and must not be

arbitrary or capricious.” (quoting Rhue v. Cheyenne Homes, Inc.,

449 P.2d 361, 363 (Colo. 1969))).

¶ 34 Before trial, Homeowner requested a determination of law that

“under CCIOA, the Association bears the burden of proving its good

faith in refusing to approve the [p]roject.” The district court ruled

21
that, “[i]n the interest of judicial economy and to avoid obfuscation

of the issues, the Court . . . directs that each party bears the

burden of proving by a preponderance of the evidence the respective

claims . . . raised by that party.” In its final written judgment, the

court did not refer to the burden of proof.

¶ 35 Homeowner argues that the district court’s pretrial order

meant that the court had placed the burden of proof on Homeowner

to demonstrate that the Association did not act in good faith. But

the court’s order says no such thing. Consistent with Colorado law,

it simply says that “each party bears the burden of proving by a

preponderance of the evidence the respective claims . . . raised by

that party.” See Kim, 179 P.3d at 90. And most importantly, there

is nothing in the court’s final judgment to suggest that the court

misallocated the burden of proof. Indeed, Homeowner does not

argue that the court treated any specific factual or legal issues

incorrectly based on its allocation of the burden of proof.

¶ 36 Additionally, Homeowner argues that the Association had the

burden of proving that it acted in good faith even in the context of

Homeowner’s counterclaims. Under Colorado law, the burden of

proof rests with the party asserting the counterclaim. Id.; see

22
Russell v. Phillips, 216 P.2d 424, 426 (Colo. 1950) (“The burden of

proof was on the defendant to establish the allegations of his

counterclaim by a preponderance of the evidence.”). Homeowner

has not cited, and we are not aware of, any exception for a

counterclaim asserting that the Association did not act in good faith

under section 38-33.3-113.

¶ 37 For all these reasons, we are not persuaded that any error

occurred.

E. Prevailing Party Determination

¶ 38 Homeowner contends that the district court erred by finding

that, for the purpose of awarding attorney fees and costs to the

prevailing party under section 38-33.3-123(1)(c)(I), neither party

prevailed. Because we are reversing and remanding for additional

findings on Homeowner’s counterclaims and defenses, we must also

reverse the court’s determination that neither party prevailed.

1. Governing Law and Standard of Review

¶ 39 CCIOA provides that, “[i]n any civil action to enforce or defend

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

regulations, the court shall award reasonable attorney fees, actual

costs, and actual costs of collection to the prevailing party.”

23
§ 38-33.3-123(1)(c)(I). A prevailing party is one who “prevails on a

significant issue in the litigation” and receives some of the benefits

sought. Archer v. Farmer Bros. Co., 90 P.3d 228, 230 (Colo. 2004).

The number of claims on which each party was victorious and the

amount of damages awarded are not dispositive on this issue. Id.

Rather, a court should examine the overall context of the case and

should consider where in the case the parties spent the majority of

their time and resources. Anderson v. Pursell, 244 P.3d 1188, 1194

(Colo. 2010).

¶ 40 Because of its unique opportunity to observe the course of the

litigation, the district court is in the best position to determine

which party prevailed. Archer, 90 P.3d at 231. When a case

involves multiple claims, “some of which are successful and some of

which are not, it is left to the sole discretion of the trial court to

determine which party, if any, is the prevailing party.” Id. The

court may also rule that neither party prevailed. Wheeler v. T.L.

Roofing, Inc., 74 P.3d 499, 503 (Colo. App. 2003). We review the

district court’s prevailing party determination for an abuse of

discretion, id., which occurs when the court’s ruling is manifestly

24
arbitrary, unreasonable, or unfair, or when it misapplies the law,

Tisch v. Tisch, 2019 COA 41, ¶ 33.

2. Discussion

¶ 41 The district court concluded that neither party prevailed

because (1) it had ruled against the Association on its claim for a

permanent injunction and (2) it had not found in favor of

Homeowner on any of its counterclaims or defenses. However, as

discussed above, the court did not make sufficient findings of fact

and conclusions of law to support its determination that

Homeowner did not prevail on any of its counterclaims or defenses.

See C.R.C.P. 52. Accordingly, we must reverse the court’s

determination that neither party prevailed.

¶ 42 Because the determination of the prevailing party will depend

in part on the district court’s additional findings concerning

Homeowner’s counterclaims and defenses, we direct the court on

remand to revisit the question of which party prevailed and award

reasonable attorney fees and costs to the prevailing party, if any.

§ 38-33.3-123(1)(c)(I).

25
F. Appellate Attorney Fees and Costs

¶ 43 Both parties request their appellate attorney fees and costs

under section 38-33.3-123(1)(c)(I). This statute permits the

prevailing party to recover not only reasonable fees and costs

incurred in the district court, but also those incurred on appeal.

See Accetta v. Brooks Towers Residences Condo. Ass’n, 2021 COA

147M2, ¶ 51 (awarding appellate attorney fees to the prevailing

party in a dispute between homeowners and their homeowners’

association under section 38-33.3-123(1)(c)(I)). Accordingly, if the

district court determines on remand that one of the parties

prevailed, we direct the court to determine and award reasonable

appellate attorney fees and costs to the prevailing party.

III. Disposition

¶ 44 The judgment is affirmed in part and reversed in part, and the

case is remanded for the district court to (1) make further findings

on Homeowner’s counterclaims and defenses; (2) determine the

prevailing party, if any; and (3) award reasonable attorney fees and

costs incurred in the district court and on appeal to the prevailing

party, if any, consistent with section 38-33.3-123(1)(c)(I).

JUDGE TOW and JUDGE SULLIVAN concur.

26