Brinkerhoff v. Thurber

23CA1373 Brinkerhoff v Thurber 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1373
Douglas County District Court No. 16CV30253
Honorable Andrew C. Baum, Judge

William Brinkerhoff and Renee Brinkerhoff,

Plaintiffs-Appellees,

v.

Mark Thurber and Robyne Thurber,

Defendants-Appellants,

and

Jeffrey C. Keiffer,

Attorney-Appellant,

v.

Jefferson Park Development, LLC,

Third-Party Defendant-Appellee.

ORDERS REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division B
Opinion by JUDGE GOMEZ
Fox and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025
The Overton Law Firm, Thomas J. Overton, Steven R. Schumacher, Golden,
Colorado, for Plaintiffs-Appellees

Spencer Fane LLP, Troy R. Rackham, Denver, Colorado, for Defendants-
Appellants and Attorney-Appellant

Dill Dill Carr Stonbraker & Hutchings, PC, Patrick D. Tooley, Denver, Colorado,
for Third-Party Defendant-Appellee
¶1 Defendants, Mark and Robyne Thurber, and their attorney,

Jeffrey C. Keiffer, appeal the trial court’s orders directing them to

pay more than $850,000 in sanctions to plaintiffs, William and

Renee Brinkerhoff, and third-party defendant, Jefferson Park

Development, LLC (JPD). The Thurbers and Mr. Keiffer contend

that the trial court erred by imposing such sanctions without

(1) identifying the legal basis for sanctions, (2) making sufficient

factual findings, or (3) conducting a hearing. We agree with the first

two contentions and decline to address the third. Accordingly, we

reverse the sanctions orders and remand the case with directions.

I. Background

¶2 The Brinkerhoffs and the Thurbers own adjacent parcels of

property in a rural part of Douglas County. Since the Brinkerhoffs

purchased their parcel in 1994, they have used an easement that

passes over the Thurbers’ land, known as the Main Drive Easement,

as a driveway to access their property from the public road. The

Brinkerhoffs and the Thurbers have long disputed issues relating to

the use and maintenance of the Main Drive and have been engaged

in litigation over those issues (as well as issues relating to other

claimed easements) since 2011.

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¶3 In 2014, the parties reached a settlement agreement in the

hopes of putting their disputes to rest. Under that agreement, the

Brinkerhoffs would abandon the Main Drive Easement in favor of a

new easement, called the Northern Drive Easement, which would

pass through a different part of the Thurbers’ property, as well as

through part of a neighboring parcel owned by Craig and Mary

Ewing.1 (The existing Main Drive also went through a part of the

Ewings’ parcel.)

¶4 Because the Northern Drive Easement was to pass over their

land, the Ewings’ cooperation was a necessary condition to

effectuate the settlement agreement. Although it wasn’t required by

the settlement agreement, Mr. Ewing insisted that the documents

creating the Northern Drive Easement and those abandoning the

Main Drive Easement be executed simultaneously. The Ewings

formalized a document to create the Northern Drive Easement, and

the parties prepared documents for the abandonment of the Main

Drive Easement. But the Ewings’ easement document was never

1 The Ewings’ property was in fact owned by the couple’s retirement

accounts. But for simplicity’s sake, we refer to them as the owners.

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delivered, the abandonment documents were never executed, and

the Northern Drive was never constructed.

¶5 By October 2015, the Ewings were divorced and had agreed to

partition their property into three separate parcels. They divided up

the parcels on the northern and southern ends and planned to sell

the middle parcel, where the Northern Drive was proposed to be.

¶6 In 2016, the Brinkerhoffs filed the underlying case seeking a

declaratory judgment that the settlement agreement was no longer

viable or enforceable. The Thurbers responded with various

counterclaims.

¶7 While this case was pending, JPD, a limited liability company

wholly owned by the Brinkerhoffs, purchased the Ewings’ middle

parcel.

¶8 In 2017, the trial court held a bench trial on the initial issue of

the viability of the settlement agreement. The court entered an

order in 2018 finding that the settlement agreement was

salvageable and that the condition requiring the Ewings’

cooperation was moot due to JPD’s purchase of the middle parcel.

¶9 The Thurbers later filed third-party claims against JPD. The

Thurbers sought a declaration that they were entitled to enforce the

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settlement agreement and that both the Brinkerhoff parcel and the

middle parcel JPD had purchased from the Ewings were burdened

by the Northern Drive Easement.

¶ 10 In mid-2020, JPD served Ms. Ewing with a subpoena to

produce documents. Among the responsive documents Ms. Ewing

produced were some emails she received from Ms. Thurber and

Mr. Keiffer in February 2016, before JPD purchased the middle

Ewing parcel. In one email, Ms. Thurber informed Ms. Ewing that

Mr. Ewing had said he considered the deal establishing the

Northern Drive Easement to be “dead.” In another, Mr. Keiffer

emailed the Ewings, copying Ms. Thurber, in an effort to confirm

that Mr. Ewing had declared that “the Northern [Drive] [E]asement

deal [wa]s dead” and to convince the Ewings to reconsider.

¶ 11 Despite their apparent relevance to the issue of whether the

middle Ewing parcel was burdened by the Northern Drive Easement

when JPD purchased it and thus whether the settlement agreement

remained enforceable, the Thurbers didn’t produce these emails in

discovery before the 2017 trial. In fact, the Thurbers had produced

the underlying emails but had redacted those particular parts. And

instead of redacting those parts in a way that would’ve made the

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redactions obvious, they made the redactions in white. A digital

forensics service determined that the emails had been deleted from

Ms. Thurber’s computer.

¶ 12 The trial court went on to conduct a second trial in 2022 on

the parties’ various claims. Before and at trial, the Brinkerhoffs

and JPD sought evidentiary sanctions against the Thurbers for their

failure to disclose the emails and for other alleged discovery

violations. The court declined to order such sanctions. However, it

suggested that monetary sanctions would likely be appropriate,

without explaining the precise legal basis for such sanctions, and

instructed the Brinkerhoffs and JPD to file lists after the trial of the

specific amounts of time they believed they had wasted due to the

nondisclosure of the emails.

¶ 13 In its post-trial order, the court found that the Thurbers,

“perhaps with either the assistance or negligence of their attorney,”

Mr. Keiffer, “intentionally kept” the emails “from the Brinkerhoffs

and the [c]ourt in connection with the 2017 trial.” The court

similarly found that the Thurbers, potentially with Mr. Keiffer’s

assistance, had also intentionally withheld logs Ms. Thurber had

kept for years detailing activities relating to the Main Drive. (Those

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logs were also first disclosed shortly before the second trial.) The

court determined that it was “impossible to know . . . what the

[c]ourt might have done differently in 2017 had there been complete

disclosure,” but regardless, “[t]hese non-disclosures caused a

tremendous waste of [c]ourt resources and interfered with the

natural progression of the history related to” the properties and the

litigation. Ultimately, the court found, in contrast to its finding

after the 2017 trial, that while “determining the exact date [was]

non-productive[,] [t]he totality of the circumstances” established

that the settlement agreement had failed before JPD purchased the

middle Ewing parcel.

¶ 14 After trial, the Brinkerhoffs and JPD moved for an award of

their attorney fees and costs from the entire case as a sanction

against the Thurbers and Mr. Keiffer for their nondisclosure of the

emails and logs. Neither the Brinkerhoffs nor JPD requested a

specific amount of fees or costs at that time; instead, they indicated

that they would submit statements of their fees and costs after the

court granted their motions for sanctions.

¶ 15 Although the Brinkerhoffs didn’t set forth a legal basis for

ordering sanctions, JPD cited three potential bases:

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1. The court’s inherent authority to impose sanctions for

conduct that is inconsistent with the orderly

administration of justice or undermines the integrity of

the judicial process, see generally Lauren Corp. v.

Century Geophysical Corp., 953 P.2d 200, 204 (Colo. App.

1998); Goodyear Tire & Rubber Co. v. Haeger, 581 U.S.

101, 107 (2017);

2. Section 13-17-102(4), C.R.S. 2024, which permits a court

to impose sanctions where an attorney or party asserts a

claim or defense that is substantially groundless,

frivolous, or vexatious or unnecessarily expands a

proceeding through abuses of discovery procedures or

other improper conduct; and

3. C.R.C.P. 26(g)(3) and 37(c)(1), which permit a court to

impose sanctions on an attorney or party for wrongly

certifying the completeness and accuracy of disclosures

or for failing to disclose evidence.

¶ 16 The Brinkerhoffs requested an evidentiary hearing on their

motion as to any issues contested by the Thurbers and Mr. Keiffer.

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JPD expressed that it didn’t believe a hearing was needed but

requested one if necessary.

¶ 17 The Thurbers responded to both motions, arguing that

sanctions were unjustified but not mentioning a potential hearing.

¶ 18 Thereafter, the trial court — at that point, a different judge,

following the original judge’s retirement — entered two very brief

orders granting the two motions for sanctions. The court didn’t

identify the legal basis for its decision and didn’t make any factual

findings. Instead, it simply directed the Thurbers and Mr. Keiffer,

jointly and severally, to reimburse the Brinkerhoffs and JPD for

their attorney fees and costs incurred in the action. It also ordered

the Brinkerhoffs and JPD to submit statements of recoverable

attorney fees and costs, along the lines the court had alluded to

during the second trial.

¶ 19 The Brinkerhoffs and JPD submitted their attorney fee and

cost statements. The Thurbers responded by filing an objection, a

motion for a briefing schedule and for additional time to respond to

the statements (including to analyze the potential conflict of interest

between the Thurbers and Mr. Keiffer), and a request for a hearing

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pursuant to C.R.C.P. 121, section 1-22. Mr. Keiffer, too, through

his law firm, filed a request for a hearing.

¶ 20 The trial court entered two more very brief orders a few days

later, one as to the Brinkerhoffs and the other as to JPD. The court

again didn’t identify the legal basis for imposing monetary sanctions

or make any factual findings (other than that the amounts charged

were reasonable, necessary, and proper to litigate the issues in the

case), instead merely stating that it had reviewed both submissions

and awarded the full amounts requested — $399,130.53 to the

Brinkerhoffs and $458,813.97 to JPD.

¶ 21 The court also entered another order denying the request for a

hearing on the basis that the Thurbers and Mr. Keiffer hadn’t cited

any authority showing that such a hearing was required and hadn’t

identified the issues they believed should be addressed at a hearing.

¶ 22 The Thurbers and Mr. Keiffer now appeal.

II. Discussion

¶ 23 The Thurbers and Mr. Keiffer acknowledge that the trial court

would be within its discretion to award sanctions based on their

nondislosure of emails and logs. Nonetheless, they challenge the

trial court’s award of attorney fees and costs as sanctions on the

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basis that the court failed to (1) identify the legal basis for such

sanctions, (2) make sufficient factual findings to support its

decision, and (3) conduct a hearing. We agree with the first two

contentions and don’t reach the third.

¶ 24 We review the reasonableness of an attorney fee award for an

abuse of discretion. Payan v. Nash Finch Co., 2012 COA 135M,

¶ 16. A court abuses its discretion if its award is manifestly

arbitrary, unreasonable, or unfair, Nesbitt v. Scott, 2019 COA 154,

¶ 16, or is based on a misapplication of the law, Payan, ¶ 16.

¶ 25 However, we review de novo the legal analysis the trial court

relied on in reaching its decision to award fees. In re Marriage of

Tognoni, 313 P.3d 655, 661 (Colo. App. 2011); Bd. of Cnty. Comm’rs

v. Kraft Bldg. Contractors, 122 P.3d 1019, 1022 (Colo. App. 2005).

To that end, the trial court must make sufficient findings to disclose

the basis for its decision to award fees and enable a reviewing court

to assess the propriety of that decision. Brody v. Hellman, 167 P.3d

192, 206 (Colo. App. 2007); see also Yaekle v. Andrews, 169 P.3d

196, 201 (Colo. App. 2007) (reversing an attorney fee award where

“the trial court did not identify the basis for awarding fees, made no

factual findings supporting its determination of the reasonableness

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of defendants’ fees beyond the conclusory sentence ordering

plaintiff and his attorney to pay, and did not explain the basis for

joint and several liability”), aff’d on other grounds, 195 P.3d 1101

(Colo. 2008).

¶ 26 As we’ve noted, JPD’s motion for sanctions identified three

potential legal grounds on which the trial court could base an

award of monetary sanctions: (1) the court’s inherent authority;

(2) section 13-17-102; and (3) C.R.C.P. 26 and 37. It’s possible that

the trial court granted the motions for sanctions on one or more of

these grounds. But because it didn’t identify its reasoning, we can’t

be sure which basis, if any, the court relied on.

¶ 27 No matter which basis the court relied on, however, the court

erred by ordering the payment of sanctions without explaining its

reasoning or making factual findings. In the absence of any

explanation as to the legal basis for its orders, we cannot assess the

propriety of the court’s decision or measure it against the applicable

standards for awards under a court’s inherent sanctioning

authority, section 13-17-102, and C.R.C.P. 26 and 37. See Brody,

167 P.3d at 206; Yaekle, 169 P.3d at 201.

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¶ 28 And regardless of which legal basis (or bases) the court may

have intended to rely on, it needed to make some factual findings to

justify the sanctions ordered. See Goodyear Tire & Rubber Co., 581

U.S. at 110 (in awarding attorney fees under a court’s inherent

sanctioning authority, the court must determine what specific fees

a party wouldn’t have incurred but for another party’s misconduct);

Pedlow v. Stamp, 776 P.2d 382, 385-86 (Colo. 1989) (in awarding

attorney fees under section 13-17-102, a court must make factual

findings to support its conclusion that such fees are warranted and

explain the reason for the award; “[w]ithout such factual findings,

appellate review is not possible”); Kwik Way Stores, Inc. v. Caldwell,

745 P.2d 672, 678 (Colo. 1987) (in awarding attorney fees under

C.R.C.P. 37, a court must “set out the factual and legal bases for

the imposition of a sanction” and “explicate on the record why it

chose the particular sanction imposed”).2

2 We reject the Brinkerhoffs’ and JPD’s arguments that this issue

wasn’t preserved. The Thurbers and Mr. Keiffer opposed the
motions for sanctions, arguing that no sanctions were warranted.
And the trial court had an obligation to explain the basis for its
decision, regardless of whether or not the Thurbers and Mr. Keiffer
reminded the court of that obligation.

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¶ 29 Accordingly, we conclude that the trial court erred by entering

orders requiring the Thurbers and Mr. Keiffer to pay over $850,000

in sanctions without identifying or explaining its rationale for doing

so. We therefore reverse the orders and remand the case to the trial

court to redetermine the sanctions issues, applying the relevant

standards and explaining the basis for its decision.

¶ 30 Because we reverse the sanctions orders on these grounds, we

don’t consider the Thurbers’ and Mr. Keiffer’s contention that the

trial court further erred by failing to conduct a hearing before

imposing sanctions. But if the Thurbers or Mr. Keiffer make a

timely request for such a hearing on remand, the court shall

conduct one. See Marriage of Tognoni, 313 P.3d at 661 (if a party

opposing a motion for sanctions under section 13-17-102 requests

a hearing, the court must conduct one); People ex rel. Pub. Utils.

Comm’n v. Entrup, 143 P.3d 1120, 1123 (Colo. App. 2006) (if a party

opposing a motion for sanctions under C.R.C.P. 37 requests a

hearing, the court must conduct one); see also In re Marriage of

Turilli, 2021 COA 151, ¶ 30 (“Where . . . a party requests a hearing

on the reasonableness of attorney fees, due process requires that

the district court hold such a hearing.”); C.R.C.P. 121, § 1-22(2)(c)

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(“When required to do so by law, the court shall grant a party’s

timely request for a hearing” on a motion for attorney fees.).

III. Appellate Attorney Fees

¶ 31 The Brinkerhoffs and JPD request an award of their appellate

attorney fees and costs as prevailing parties pursuant to C.A.R. 39

and 39.1. Given our disposition of this appeal, we decline to award

any such fees or costs.

IV. Disposition

¶ 32 The orders are reversed, and the case is remanded to the trial

court for further proceedings consistent with this opinion.

JUDGE FOX and JUDGE LUM concur.

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