Kilgore v. 2900 June

25CA0108 Kilgore v 2900 June 01-29-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0108
Eagle County District Court No. 23CV30160
Honorable Jonathan Shamis, Judge

Robert Kilgore and Sarah Kilgore,

Plaintiffs-Appellees,

v.

2900 June Creek TRL C, LLC, a Colorado limited liability company, and
Jonathan Garini,

Defendants-Appellants.

APPEAL DISMISSED IN PART, ORDER VACATED,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE LIPINSKY
Dunn and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 29, 2026

Husch Blackwell LLP, Jamie H. Steiner, Thomas P. Gerwick, Denver, Colorado,
for Plaintiffs-Appellees

Jonathan Garini, Authorized Representative, Avon, Colorado, for Defendant-
Appellant 2900 June Creek TRL C, LLC

Jonathan Garini, Pro Se
¶1 Jonathan Garini (Garini) and 2900 June Creek TRL C, LLC

(jointly, the Garini parties) appeal the district court’s order granting

summary judgment in favor of Robert and Sarah Kilgore (jointly, the

Kilgores) and the court’s order awarding attorney fees to the

Kilgores. We dismiss the portion of the appeal challenging the

summary judgment order, vacate the attorney fee order, and

remand for further proceedings consistent with this opinion.

I. The Proceedings in the District Court

¶2 This case arises from a dispute between neighbors over the

right to park on a portion of an access easement. The Kilgores filed

this case to obtain a declaratory judgment that the Garini parties

lacked the right to park on the portion of the access easement

located on the Kilgores’ property. The Garini parties filed an answer

and a counterclaim, which they later amended.

¶3 At the district court, the Garini parties appeared pro se

through Garini.

¶4 The Kilgores filed a motion for summary judgment in which

they sought entry of judgment in their favor on their declaratory

judgment claim and on the Garini parties’ counterclaims. The court

granted the motion in an order dated August 13, 2024.

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¶5 Three weeks later, the Kilgores moved for an award of attorney

fees against the Garini parties under section 13-17-102(4), C.R.S.

2025. In their motion, the Kilgores asserted that the Garini parties

were liable for the Kilgores’ reasonable fees because the Garini

parties “knew their defenses and counterclaims were groundless

and they filed motions throughout the litigation that were aimed at

nothing more than harassing the [Kilgores] and wasting [the

Kilgores’] time and money.”

¶6 The Kilgores acknowledged that, because the Garini parties

were not represented by counsel, section 13-17-102(6) applied to

the motion. They correctly noted that, under that subsection, a

court may award attorney fees against a pro se party only if the

court “finds that the party clearly knew or reasonably should have

known that the party’s action or defense, or any part of the action

or defense, was substantially frivolous, substantially groundless, or

substantially vexatious.” § 13-17-102(6).

¶7 But the Kilgores did not refer to section 13-17-102(6) in the

proposed order they tendered to the court together with their

attorney fee motion. Rather, the Kilgores’ proposed order merely

said as follows:

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This matter having come before this Court on
[the Kilgores’] Motion for Attorney Fees under
C.R.S. § 13-17-102(4), the Court having
reviewed the Motion for Attorneys’ Fees,
supporting declaration and exhibit thereto,
and being fully advised;

ORDERS that [the Kilgores’] Motion for
Attorneys’ Fees is GRANTED.

AND FURTHER ORDERS that judgment be
entered against [the Garini parties] and in
favor of [the Kilgores] in the amount of
$39,222.50, with interest at the rate of 8% per
annum compounded annually from the date of
this Order.

¶8 On December 11, 2024, the court granted the Kilgores’

attorney fee motion by stamping “APPROVED BY COURT” on their

proposed order and entering it as a court order. (On the same day,

the court granted the Kilgores’ bill of costs, again by stamping a

proposed order that the Kilgores had submitted.)

¶9 The notice of appeal that Garini filed on January 21, 2025,

sought to appeal the order granting summary judgment to the

Kilgores, the attorney fee order, and the order awarding costs to the

Kilgores. Garini’s opening brief presented arguments regarding the

summary judgment order and the attorney fee order, but it did not

include a challenge to the costs order.

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¶ 10 As an initial matter, we note that neither the Kilgores nor the

court questioned whether Garini, who is not an attorney, possessed

the legal authority to represent 2900 June Creek. Garini referred to

“[w]e” in the notice of appeal, apparently to indicate that 2900 June

Creek was an additional appellant. As relevant to this case, section

13-1-127(2)(a), C.R.S. 2025, provides that an officer of a corporate

entity with no more than three owners may represent the entity

“before any court of record . . . if . . . [t]he amount at issue in

the . . . matter before the court . . . does not exceed fifteen thousand

dollars, exclusive of costs, interest, or statutory penalties.”

¶ 11 On December 12, 2025, we issued a show cause order

directing 2900 June Creek to explain “why it is excepted from the

requirement that it be represented by an attorney and can instead

be represented by [Garini], as provided in section 13-1-127.” 2900

June Creek, through Garini, submitted a timely response to the

show cause order.

¶ 12 Under the circumstances, we consider the Garini parties’

arguments in this appeal and discharge the order to show cause.

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II. Analysis

A. We Dismiss the Garini Parties’ Appeal of the Summary
Judgment Order as Untimely

1. Law

¶ 13 “Under C.A.R. 4(a)(1), a party to a civil case seeking to appeal a

judgment or order to this court must file a notice of appeal no later

than forty-nine days from the date of the judgment or order.” Riggs

Oil & Gas Corp. v. Jonah Energy LLC, 2024 COA 57, ¶ 1, 555 P.3d

90, 92.

¶ 14 “Failure to file a notice of appeal within the prescribed time

deprives the appellate court of jurisdiction and precludes a review of

the merits.” Widener v. Dist. Ct., 615 P.2d 33, 34 (Colo. 1980).

“[S]trict compliance” with this jurisdictional rule is “required.”

Collins v. Boulder Urb. Renewal Auth., 684 P.2d 952, 954 (Colo.

App. 1984).

2. The Garini Parties Appealed the Summary Judgment Order
112 Days Too Late

¶ 15 In their answer brief, the Kilgores argued that the Garini

parties failed to file a timely notice of appeal of the summary

judgment order. The Kilgores noted that the Garini parties’

deadline to appeal that order was October 1, 2024 — forty-nine

5
days from August 13, 2024. See C.A.R. 4(a)(1). Therefore, the

Garini parties’ notice of appeal, filed on January 21, 2025, was 112

days late.

¶ 16 The Garini parties conceded in their reply brief that their

notice of appeal was “timely only as to the 11 December 2024 fee

order.” (We do not consider the merits of the Garini parties’

argument, raised for the first time in their reply brief, that the

summary judgment order was not final — and therefore could be

the subject of “future review” — because it left one of the Garini

parties’ counterclaims “unadjudicated.” See Caylao-Do v. Logue,

2025 COA 42, ¶ 33, 571 P.3d 909, 916.)

¶ 17 Because the Garini parties did not timely appeal the summary

judgment order, we lack jurisdiction over the portion of the appeal

addressing that order. See Riggs Oil & Gas Corp., ¶ 1, 555 P.3d at

92. The portion of the appeal challenging the summary judgment

order is therefore dismissed with prejudice. See id. at ¶¶ 4-5, 75,

555 P.3d at 93, 102.

B. The Garini Parties’ Appeal of the Attorney Fee Order

¶ 18 We next turn to the Garini parties’ argument that we must

reverse the attorney fee order because the court failed to make the

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findings required under section 13-17-102(6) before awarding

attorney fees against them, as pro se parties. We agree.

1. Law

¶ 19 We review an award of attorney fees for an abuse of discretion.

In re Estate of Shimizu, 2016 COA 163, ¶ 15, 411 P.3d 211, 215. “A

trial court abuses its discretion if its decision is manifestly

unreasonable, arbitrary, or unfair, or it misapplies the law.” HMLL

LLC v. MJM Holdings Ltd., 2024 COA 85, ¶ 17, 558 P.3d 1006,

1011. But we review de novo whether a court properly applied the

law. See In re Marriage of Gallegos, 251 P.3d 1086, 1087 (Colo.

App. 2010).

¶ 20 If a court finds that a party brought an action lacking

substantial justification, meaning that the action was substantially

frivolous, substantially groundless, or substantially vexatious, then

the court must assess reasonable attorney fees against the

party. § 13-17-102(4); Estate of Shimizu, ¶ 16, 411 P.3d at 215.

¶ 21 Section 13-17-102(6) imposes an additional requirement that

must be satisfied before a court may award attorney fees against a

pro se party. When a party is not represented by an attorney, the

court must also find that “the party clearly knew or reasonably

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should have known” that its “action or defense, or any part of the

action or defense, was substantially frivolous, substantially

groundless, or substantially vexatious” before the court may assess

attorney fees against that party. § 13-17-102(6). Absent such a

finding, an order “awarding attorney fees” against a pro se party

“cannot stand.” Artes-Roy v. Lyman, 833 P.2d 62, 63 (Colo. App.

1992).

2. The Court Did Not Make the Findings
Required Under Section 13-17-102(6)

¶ 22 The proposed order that the Kilgores submitted together with

their attorney fee motion — which the court approved and entered

as a court order — was minimal at best. It did not cite section

13-17-102(6), acknowledge that the Garini parties were not

represented by counsel, or include a finding that the Garini parties

clearly knew or reasonably should have known that their “action or

defense, or any part of the[ir] action or defense, was substantially

frivolous, substantially groundless, or substantially vexatious.”

§ 13-17-102(6). The attorney fee order contained no findings

whatsoever and did not reveal the factual or legal bases for the

court’s decision to award attorney fees to the Kilgores.

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¶ 23 The Kilgores argue that “the basis and reasoning for the

[attorney fee order] is clear and valid” when “the order is read in

conjunction with the record.” They cite three inapposite cases in

support of this assertion. First, in In re Marriage of Aldrich, the

district court had entered an attorney fee award containing findings

that the father’s motion to modify child support was “frivolous and

vexatious” within the meaning of section 13-17-102(4); the motion

had “no merit” and “no substance”; and it was “brought for the

purpose of avoiding responsibility” for child support. 945 P.2d

1370, 1379 (Colo. 1997). The father argued that the district court

did not make sufficient findings to support the fee award. Id. at

1377.

¶ 24 The supreme court agreed in part. It held that the district

court made adequate findings that the father’s motion lacked

substantial justification under section 13-17-102(4), given “the

facts established in the record and the findings by the district court

concerning the father’s lack of credibility and his improper

motivation for bringing the motion.” Id. at 1379. But the supreme

court also concluded that the district court had not sufficiently

explained the basis for the amount of attorney fees it awarded under

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section 13-17-103, C.R.S. 2025. Marriage of Aldrich, 945 P.2d at

1379. Thus, it remanded the case to the district court for findings

on the amount of reasonable attorney fees awardable against the

father. Id.

¶ 25 In contrast, in this case, the attorney fee order contained no

findings. It did not indicate which of the Garini parties’ claims or

defenses lacked substantial justification or why those claims or

defenses warranted an attorney fee award against the Garini

parties. Significantly, Marriage of Aldrich teaches that an attorney

fee order unsupported by any judicial findings is inadequate

regardless of possible record support for the fee award. Further,

the Marriage of Aldrich court did not address section 13-17-102(6)’s

requirements because the father in that case was represented by

counsel.

¶ 26 Second, the Kilgores cite Front Range Home Enhancements v.

Stowell, in which the plaintiff, who was represented by counsel,

appealed the trial court’s award of sanctions against him. 172 P.3d

973, 976 (Colo. App. 2007). The plaintiff argued that the court

erred because his legal theory was meritorious; he did not contend

that the court’s sanctions order lacked sufficient findings. Id. The

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division determined that the court had not abused its discretion by

imposing sanctions and affirmed the sanctions order because it had

record support. Id. Front Range Home Enhancements therefore

does not support the Kilgores’ argument.

¶ 27 Third, the Kilgores cite Foster v. Phillips for the proposition

that, “while it is the better practice [for a court] to make express

findings, they may be implicit in a court’s ruling.” 6 P.3d 791, 796

(Colo. App. 1999). But the division actually said: “[T]he trial court

must make sufficient findings so that, when considered together

with the record, this court can determine the basis for an award of

costs.” Id. (emphasis added). In this case, the attorney fee order

did not contain any findings, much less findings that, coupled with

evidence in the record, would allow us to determine the basis for

the court’s attorney fee award.

¶ 28 Further, the Kilgores argue that the court’s reasons for

awarding attorney fees can be discerned from the record, asserting

that they “are clearly laid out and incorporated by reference from

the Kilgores’ briefing.” But the order does not say it incorporates

the Kilgores’ briefing, or any other documents, by reference.

Significantly, the Kilgores do not cite any case holding that an

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attorney fee order lacking any findings or explanation for the court’s

decision to award attorney fees against a pro se party can satisfy

section 13-17-102(6)’s findings requirement. The case law is to the

contrary. See, e.g., Artes-Roy, 833 P.2d at 63.

¶ 29 Because the court did not make any of the findings required

under section 13-17-102(6), we cannot meaningfully review the

court’s attorney fee award. For that reason, we vacate the attorney

fee order and remand the case to the district court to make the

findings required by section 13-17-102(6). See id. In light of our

decision, we need not separately analyze the Garini parties’ related

argument that the attorney fee order further fails because the court

did not make the findings required under section 13-17-103(1). See

§ 13-17-103(1) (“When granting an award of attorney fees . . . , the

court shall specifically set forth the reasons for the award and must

consider [eight specified] factors, among others, in determining

whether to assess attorney fees . . . and the amount of fees to be

assessed . . . .”); see Marriage of Aldrich, 945 P.2d at 1379. On

remand, the court must make all the findings required under

sections 13-17-102 and 13-17-103 to support an award of attorney

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fees against the Garini parties. We take no position on the merits of

the Kilgores’ request for attorney fees.

¶ 30 In addition, given our disposition of this appeal, we deny the

Kilgores’ request for an award of attorney fees as sanctions under

C.A.R. 38(b).

III. Disposition

¶ 31 The portion of the appeal challenging the grant of summary

judgment to the Kilgores is dismissed, the attorney fee order is

vacated, and the case is remanded for further proceedings

consistent with this opinion.

JUDGE DUNN and JUDGE KUHN concur.

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