Barsim v. Doremus

24CA1353 Barsim v Doremus 12-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1353
Pitkin County District Court No. 22CV30032
Honorable Christopher G. Seldin, Judge

Barsim LLC, a Colorado limited liability company; Glen Eagles Drive LTD., a
Guernsey limited company; and Stonefield Properties LLC, a Delaware limited
liability company,

Plaintiffs-Appellants,

v.

Andrew J. Doremus and Jeanne C. Doremus,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE TOW
Moultrie and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 11, 2025

Ferguson Schindler Law Firm, P.C., Michelle K. Schindler, Ryan J. Dougherty,
Aspen, Colorado, for Plaintiffs-Appellants

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Brad W. Schacht, Nicholas
Gunther, Denver, Colorado, for Defendants-Appellees

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Plaintiffs, Barsim LLC, Glen Eagles Drive LTD., and Stonefield

Properties LLC (collectively, the homeowners),1 appeal the trial

court’s order denying the homeowners’ request for injunctive relief

or, in the alternative, request for damages against defendants,

Andrew J. Doremus and Jeanne C. Doremus. We affirm.

I. Background

¶2 We glean the following facts from the evidence presented at,

and the trial court’s findings following, a two-day bench trial.

A. Pitkin County Proceedings

¶3 The Doremuses wanted to split their property into two

separate lots with plans to eventually build a home on the second

lot. They requested signatures from the homeowners — each of

which owns a home adjacent to the Doremuses’ property — to

support the intended lot split. The homeowners, individually,

signed letters supporting the lot split and amendment to the plat

map. These letters were submitted to Pitkin County as part of the

1 During trial court proceedings, the following persons testified as

the authorized representatives and residents of these respective
properties: (1) Julie and Steve Schlafer testified for Barsim;
(2) Jeffrey and Valerie Montgomery testified for Glen Eagles Drive;
and (3) Rachael and Daniel Klein testified for Stonefield.

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“Doremus Subdivision and Planned Unit Development Land Use

Application” (land use application). In the land use application, the

Doremuses “request[ed] to be awarded 5,750 square feet of gross

floor area for a new lot,” with the house “limited to 4,750 square

feet of floor area” plus 1,000 feet of garage and subgrade area.

¶4 The Pitkin County Planning and Zoning Commission (the

Zoning Commission) set a public hearing to review the land use

application (the zoning hearing). The Doremuses’ land planner,

Glenn Horn, mailed notices for the zoning hearing to the

homeowners and three other neighbors who are not parties to this

litigation. Horn also published the same notice in the Aspen Times

Weekly. And Horn posted public notice signs at the end of the

Doremuses’ driveway stating the date, time, and purpose of the

zoning hearing. None of the homeowners appeared at the zoning

hearing. The Zoning Commission unanimously recommended that

the Pitkin County Board of County Commissioners (the Board)

approve the application.

¶5 Following the zoning hearing, the Doremuses once again

approached the homeowners to request signatures for a second set

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of letters supporting the lot split. Steve Schlafer and Jeffrey

Montgomery signed the letters on behalf of their respective entities.

¶6 The Board set a public hearing to consider the land use

application (first Board hearing). Horn once again mailed notices to

the homeowners and nonparty neighbors, published the notice in

the Aspen Weekly Times, and posted a public notice sign at the end

of the Doremuses’ driveway. None of the homeowners appeared at

the first Board hearing.

¶7 After considering the land use application at the first Board

hearing, and again during a second reading at a regular meeting

one month later, the Board passed Resolution No. 018-2017, which

granted the lot split and request for 5,750 square feet of gross floor

area on the second lot, subject to compliance with county

standards. Resolution No. 018-2017 was recorded in the real estate

records one month later.

¶8 The Doremuses submitted a final application per county

requirements. The Zoning Commission considered the final

application at a regular meeting and unanimously recommended

approval. The Board then introduced and read the Doremuses’

final application at a public hearing (second Board hearing). Again,

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Horn had mailed notices of this hearing to the homeowners and

nonparty neighbors and published the notice in the Aspen Weekly

Times.2 A few weeks later, the Board held a third public hearing

(third Board hearing), at which it conducted a third reading of the

final application and adopted it the same day. None of the

homeowners appeared at the second or third Board hearing. The

Board then passed Resolution No. 141-2018, which constituted the

final approval for the Doremuses’ requested lot split and request for

5,750 square feet of gross floor area. Resolution No. 141-2018 was

recorded in the real estate records one month later.

B. Trial Court Procedural History

¶9 Approximately three years later, the Doremuses offered to sell

the second lot to the Montgomerys and Kleins. The homeowners

alleged this was the first time they were made aware that the

Doremuses had sought and received approval for 5,750 square feet

of floor area. The homeowners stated that throughout the

application proceedings the Doremuses represented that they

2 The trial court noted that while Horn testified that he included a

picture of the public notice sign for the second Board hearing, no
such photo was in the file.

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intended to build a 2,500 square-foot home on the second lot if the

split was successful and that this representation prompted the

homeowners’ willingness to sign the letters of support.

¶ 10 The homeowners filed a complaint alleging three claims:

(1) fraudulent misrepresentation; (2) fraudulent concealment; and

(3) unjust enrichment. The homeowners sought to “permanently

enjoin[] [the Doremuses], and any successor-in-interest, from

developing the Subdivided Lot to construct any structures currently

permitted as a result of the [land use] Application.” In the

alternative, the homeowners sought “damages . . . in an amount at

least equal to the reduction in value of [the homeowners’] respective

properties by reason of [the Doremuses’] ability to develop the

Subdivided Lot.”

¶ 11 The matter was set for a bench trial. Eleven days before it was

set to begin, the trial court entered an order requesting the parties

“initially present evidence concerning notice issues” because it

considered that “a threshold issue[] that may be determinative and

render evidence on other issues unnecessary.” On the first day of

trial, the court noted that it “may well be more efficient for the

Plaintiffs who are called to testify to address all the elements of

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reasonable reliance when they come up and testify about notice.”

The parties agreed, and the court allowed the homeowners to testify

about both reliance and notice. Following the bench trial, the trial

court issued oral findings and conclusions in favor of the

Doremuses on all claims.

¶ 12 The trial court followed with a written order memorializing its

oral ruling. It found that the homeowners had received the mailed

notices of the public hearings, and the Doremuses had both posted

and published notices of the public hearings. The court further

found that the complaint was a collateral attack on the Board’s

approval of the Doremuses’ application. Based on these factual

findings, the trial court concluded:

• The homeowners’ claims failed for lack of subject matter

jurisdiction because C.R.C.P. 106(a)(4) “provide[d] the

exclusive remedy under Colorado law for challenging

quasi-judicial decisions of a local government.”

• The homeowners could not prevail on the justifiable

reliance element of their fraudulent representation and

fraudulent concealment claims.

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• Stonefield’s claims were barred because they had

constructive notice of the land application approval.3

• The homeowners could not prevail on their unjust

enrichment claim because they could not prove that it

was unjust for the Doremuses to retain the benefit of the

approvals.

¶ 13 This appeal followed.

II. Jurisdiction

¶ 14 The homeowners argue the trial court erred by ruling that it

did not have subject matter jurisdiction over the homeowners’

claims. We agree in part but find the trial court’s error was

harmless.

A. Applicable Law and Standard of Review

¶ 15 C.R.C.P 106(a)(4) provides the exclusive remedy for

challenging quasi-judicial decisions of a local government. Freed v.

Bonfire Ent. LLC, 2024 COA 65, ¶ 12. Quasi-judicial actions involve

“the determination of the rights, duties, or obligations of specific

3 The previous owners, Kurt and Ann Hall, conveyed the Stonefield

Lot to Stonefield on November 12, 2020, approximately two years
after the passage of Resolution No. 141-2018.

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individuals on the basis of the application of presently existing legal

standards or policy considerations to past or present facts

developed at a hearing conducted for the purpose of resolving the

particular interests in question.” Farmers Water Dev. Co. v. Colo.

Water Conservation Bd., 2015 CO 21, ¶ 18 (quoting Cherry Hills

Resort Dev. Co. v. City of Cherry Hills Village, 757 P.2d 622, 625

(Colo. 1988)). Rule 106(a)(4) provides an avenue for reviewing the

actions of governmental bodies or officers — not the actions of

private parties. Freed, ¶ 14. A complaint seeking review under this

rule shall be filed in the district court within twenty-eight days of

the final decision of the governmental body. C.R.C.P. 106(b).

¶ 16 “We review de novo a [trial] court’s determination that it lacks

subject matter jurisdiction.” Freed, ¶ 13. And “[b]ecause the [trial]

court exercises no factfinding authority in [Rule 106(a)(4)] cases,”

we are not bound by any of the lower court’s determinations.

Carney v. Civ. Serv. Comm’n, 30 P.3d 861, 863 (Colo. App. 2001).

B. Analysis

¶ 17 The homeowners contend the trial court erred by finding that

their claims were a collateral attack on the Board’s decision and

therefore subject to the Rule 106(b) deadline.

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¶ 18 The trial court’s determination that the homeowners’ claims

constituted a collateral attack on the Board’s action stemmed from

the homeowners’ request for injunctive relief, wherein the

homeowners asked the trial court to “vacat[e] the approval issued

by the [Board].” The trial court noted that this proposed remedy

“results in the Doremuses having to go back to the Board to reargue

the issue with the participation of the [homeowners]” and that this

“would be the typical relief granted in the event that the Court were

to overturn [the Board’s] decision under Rule 106(a)(4).”

¶ 19 The homeowners argue that the trial court misinterpreted

their requested relief. The homeowners contend that rather than

“vacat[ing] the approval issued by the [Board],” they instead “sought

to enjoin the Doremuses from developing the Subdivided Lot in

accordance with the land use approvals that were obtained by

fraud.” According to the record, this is one part of their requested

relief as the homeowners asked for “a restriction in covenant that

would limit the development to what Andrew Doremus’s

misrepresentations were.” But, notably, the homeowners confirmed

that the primary relief they sought involved “redo[ing] the process in

front of the governmental authority of jurisdiction.” Therefore, the

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trial court was correct in concluding that the requested relief

involved vacating the Board’s approval of the Doremuses’ land use

application.

¶ 20 And we agree that based on the injunctive relief sought, these

were requests for review of a quasi-judicial function of the Board.

Granting the Doremuses’ land use application required the Board to

determine the rights and duties of particular individuals in a

specific factual context, which they then considered when applying

the existing legal framework to their zoning request. See Freed,

¶ 17. “These are the hallmarks of a quasi-judicial function of a

governmental body,” and any challenge specific to the land use

application and zoning request should have been raised within

twenty-eight days of the Board’s final approval. Id. at ¶¶ 17-18.

Thus, to the extent the homeowners’ complaint sought to force a

return to the Board, the trial court did not err by rejecting the claim

as an untimely challenge under Rule 106(a)(4).

¶ 21 However, the homeowners additionally argue, and we agree,

that the monetary request for relief against the Doremuses falls

outside of the boundaries of a Rule 106(a)(4) review. See, e.g.,

Sundheim v. Bd. of Cnty. Comm’rs, 904 P.2d 1337, 1345 (Colo. App.

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1995) (holding a plaintiff’s claim for monetary damages under 42

U.S.C. § 1983 was distinct from any Rule 106(a)(4) claim), aff’d, 926

P.2d 545 (Colo. 1996). Nevertheless, any error in considering the

homeowners’ request for monetary damages to be barred by a lack

of jurisdiction was harmless because the trial court went on to

reach the merits of the claims.

III. Justifiable Reliance

¶ 22 The homeowners contend the trial court erred when it found

they could not justifiably rely on the Doremuses’ representation of

their lot size. We disagree.

A. Standard of Review and Applicable Law

¶ 23 The parties disagree as to the applicable standard of review.

The homeowners contend that this “issue challenges the trial

court’s legal conclusions on justifiable reliance, and, therefore the

review is de novo.” The Doremuses argue that reliance on a

misrepresentation is a question of fact that we review for clear

error, and the factual findings are binding if they are supported by

the record. We agree with the Doremuses. See M.D.C./Wood, Inc. v.

Mortimer, 866 P.2d 1380, 1382-83 (Colo. 1994).

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¶ 24 “Common to both fraudulent concealment and fraudulent

misrepresentation is the element of reliance.” Nielson v. Scott, 53

P.3d 777, 780 (Colo. App. 2002). In the former scenario, reliance

lies in the plaintiff’s assumption that the concealed fact does not

exist. Id.; see Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs

LLP, 2018 CO 54, ¶ 56. The latter requires a showing that the

“defendant made a fraudulent misrepresentation of material fact

[that] the plaintiff relied on.” Barnes v. State Farm Mut. Auto. Ins.

Co., 2021 COA 89, ¶ 28.

¶ 25 “A party’s reliance on a purported misrepresentation is not

justified when the party is aware of or on inquiry notice of the

falsity of the representation.” Rocky Mountain Expl., Inc., ¶ 53. Put

another way, “[i]f the plaintiff has access to information that was

equally available to both parties and would have led to discovery of

the true facts, the plaintiff has no right to rely upon the

misrepresentation.” Balkind v. Telluride Mountain Title Co., 8 P.3d

581, 587 (Colo. App. 2000) (emphasis added).

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B. Analysis

1. The Homeowners Had Equal Access to the Truth

¶ 26 The homeowners argue the trial court erred when it found that

they had equal access to the truth — namely, that the Doremuses

sought approval for a 5,750 square foot area as opposed to a 2,500

square foot area.4

¶ 27 The homeowners attempt to distinguish the facts underlying

this case from those in M.D.C./Wood and Neilson. They contend

that the parties in those cases had equal access to information

because they were “actually ‘given’ the correct information” and that

access to a public file is not categorically the same.

¶ 28 Notably, the trial court found that the Doremuses’ lot-size

information was given to the homeowners, and thus became equally

available, when they received the mailed notices for the public

hearings. Specifically, the court noted that the first Board hearing

notice explicitly detailed that the Doremuses were pursuing “a

growth management allotment of 4,750 square feet of floor area for

4 Notably, throughout the homeowners’ lengthy recitation of the

factual background in their briefing, they never acknowledge or
discuss the factual findings made by the trial court.

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a single-family residence on a newly subdivided lot.” And despite

the homeowners’ claims that they never received the notice, the

court found otherwise after hearing testimony from Horn and the

nonparty neighbors. Horn testified that he mailed a notice of each

hearing to the individual homeowners. Horn also testified that after

suit was filed, he checked the county records to see if any notices

had been returned as undeliverable, and the only letter that was

returned had been sent to a neighbor who had moved away.5

Finally, the nonparty neighbors all confirmed their receipt of the

mailed notices for the relevant hearings, which the court considered

to be “the most credible [testimony],” given “none of [them] have a

horse in this race.”

¶ 29 Because there is record support for the trial court’s finding, we

cannot disturb it. See M.D.C./Wood, Inc., 866 P.2d at 1382.

Further, in light of the court’s finding, we agree that the

homeowners’ actual notice of the requested square footage of floor

5 That neighbor is not party to this appeal.

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area means that they failed to demonstrate justifiable reliance. See

Rocky Mountain Expl., Inc., ¶ 53.6

2. The Trial Court Did Not Abuse its Discretion in Bifurcating the
Trial

¶ 30 The homeowners additionally contend the trial court erred by

bifurcating the trial and limiting the bench trial to the issue of

notice. In support of this claim, the homeowners merely state that

the trial court “cut short evidence it deemed not relevant to notice”

and that this limitation meant the trial court “failed to consider all

of the circumstances as required and erred as a matter of law.”

¶ 31 We review a trial court’s bifurcation of a trial for an abuse of

discretion. Martin v. Minnard, 862 P.2d 1014, 1016 (Colo. App.

1993). “A trial court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, unfair, or based on a

misapplication of the law.” Black v. Black, 2020 COA 64M, ¶ 118.

6 The homeowners’ reliance on the pattern jury instruction

regarding the duty to investigate, see CJI-Civ. 19:10 (2025), is
unavailing. Because the trial court found, with record support, that
they had been informed of the proposed square footage in the
Doremuses’ request and, thus, had the “‘inquiry notice’ that [the
jury instruction] embodies,” id. cmt. 3, the court’s conclusion is not
contrary to the legal principles underlying that jury instruction.

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¶ 32 The homeowners do not explain how the trial court’s conduct

of the trial or its evidentiary rulings constituted an abuse of

discretion. See Murray v. Just In Case Bus. Lighthouse, LLC, 2016

CO 47M, ¶ 16. And the trial court ultimately allowed the

homeowners to testify about reasonable reliance as well as notice

during the bench trial. Thus, the trial court considered evidence

beyond what was relevant to notice, and to the extent the

homeowners contend otherwise, we find their assertion is

undeveloped and decline to address it. See Sanchez v. Indus. Claim

Appeals Off., 2017 COA 71, ¶ 41.

¶ 33 In any event, because the court’s finding that the homeowners

had notice effectively precludes the homeowners’ claims, we cannot

see how any error in focusing the hearing on this threshold issue

prejudiced the homeowners. See C.R.C.P. 61 (errors that do not

affect the substantial rights of the parties are to be disregarded).

IV. Constructive Notice

¶ 34 The homeowners contend the trial court erred by finding

Stonefield had constructive notice of the approval of the Doremuses’

land use application. We disagree.

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A. Standard of Review and Applicable Law

¶ 35 We review a trial court’s legal conclusions de novo. Tisch v.

Tisch, 2019 COA 41, ¶ 24. “Constructive notice is, for all practical

purposes, record notice.” Franklin Bank, N.A. v. Bowling, 74 P.3d

308, 313 (Colo. 2003). “When a party properly records his interest

in property with the appropriate clerk and recorder, he

constructively notifies ‘all the world’ as to his claim.” Id.

B. Analysis

¶ 36 Stonefield acquired the property adjacent to the Doremuses’

lot approximately two years after the Doremuses received approval

for their land use application. And the homeowners do not argue

that the Doremuses improperly recorded the approval of their land

use application through the recordation of Resolutions Nos. 018-

2017 and 141-2018. Instead, the homeowners argue that

“Stonefield cannot be charged with constructive notice of a land use

approval that was not recorded in Stonefield’s chain of title.”

¶ 37 In essence, the homeowners are asking us to conclude that

the purchaser of any property lying next to land that is already

zoned, but undeveloped, should be allowed to sue the owner of the

undeveloped property despite the purchaser’s failure to inquire

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about the zoning status. This would contravene Colorado case law,

which states that “[c]onstructive notice occurs when a party

‘abstains from inquiry when inquiry ought to be made’ because

‘[w]illful ignorance is equivalent, in law, to actual knowledge.’”

Macasero v. ENT Credit Union, 2023 COA 40, ¶ 20 (quoting Mackey

v. Fullerton, 4 P. 1198, 1200 (Colo. 1884)). Stonefield could have

looked at the county records for the relevant resolutions, which

detailed that the Doremuses’ lot had received approval for 5,750

square feet of gross floor area. Its decision not to inquire amounted

to constructive notice, and the trial court correctly concluded that

Stonefield’s claims were barred because of that notice.

V. Unjust Enrichment

¶ 38 The homeowners contend the trial court erred by dismissing

their unjust enrichment claim. We disagree.

A. Standard of Review and Applicable Law

¶ 39 We review de novo whether the trial court has applied the

appropriate test to determine the existence of unjust enrichment.

Redd Iron, Inc. v. Int’l Sales & Servs. Corp., 200 P.3d 1133, 1136

(Colo. App. 2008). But “where a ruling on unjust enrichment is

based on facts developed at trial, an appellate court affords

18
deference to the trial court’s discretion to fashion equitable

remedies, and it reviews for abuse of discretion.” Id.

¶ 40 To succeed on an unjust enrichment claim, a party “must

prove that (1) the defendant received a benefit (2) at the plaintiff's

expense (3) under circumstances that would make it unjust for the

defendant to retain the benefit without commensurate

compensation.” Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008).

B. Analysis

¶ 41 The homeowners contend that we should review the trial

court’s unjust enrichment decision de novo. But the homeowners’

challenges are rooted in the trial court’s factual findings. The trial

court applied the correct legal standard to the unjust enrichment

claim. See id. Therefore, we will review the trial court’s denial of

the requested relief for an abuse of discretion. See id.

¶ 42 The trial court assumed without deciding that the

homeowners could establish that the Doremuses received a benefit

at their expense. Even so, the court determined that the

homeowners failed to meet the third prong “because the

circumstances do not make it unjust for the [Doremuses] to retain

the benefit of the approvals without compensation to the

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[homeowners].” The court’s conclusion hinged on its factual

findings that the homeowners “had notice of the public proceeding”

and “had the ability to participate in the County’s process and

elected not to.” As previously noted, supra Part III.B, the court’s

findings were based on the testimony and evidence presented at the

bench trial, wherein everyone except the interested homeowners

recollected sending or receiving the relevant notices. Because we

must defer to the trial court’s unjust enrichment decision, see Redd

Iron, Inc., 200 P.3d at 1136, we cannot say that it abused its

discretion in concluding that the notice afforded to the

homeowners, and their choice not to attend and object to the

Doremuses land use application during the county proceedings,

could then make the Doremuses’ success in the proceedings

“unjust” if retained.

VI. Disposition

¶ 43 The judgment is affirmed.

JUDGE MOULTRIE and JUDGE TAUBMAN concur.

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