Thompson Crossing v. Bandy

25CA1130 Thompson Crossing v Bandy 05-14-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1130
Larimer County District Court No. 23CV30793
Honorable C. Michelle Brinegar, Judge

Thompson Crossing II Association,

Plaintiff-Appellee,

v.

Ellen Lee Bandy,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE DUNN
J. Jones and Fox, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 14, 2026

Johnson Muffly & Dauster, PC, Ezekiel Rauscher, Fort Collins, Colorado, for
Plaintiff-Appellee

The Law Office of William J. O’Donnell, P.C., William J. O’Donnell, Centennial,
Colorado, for Defendant-Appellant
¶1 Defendant, Ellen Lee Bandy, appeals the district court’s order

enforcing a settlement agreement that required her to pay attorney

fees to plaintiff, Thompson Crossing II Association (the Association).

Bandy doesn’t dispute that she owes fees under the settlement

agreement but maintains that the court erred by awarding fees

without holding a hearing on their reasonableness. Because we

agree, we reverse the order awarding attorney fees and remand the

case for further proceedings consistent with this opinion.

I. Background

¶2 For alleged violations of the “Declaration of Covenants,

Conditions, Restrictions and Easements” (the Declaration) for

Thompson Crossing II — a common interest community — the

Association filed a complaint against Bandy. The Association

requested injunctive relief to prevent Bandy from, among other

things, building an in-ground pool and using the common area for

storage.

¶3 The Association and Bandy later entered into a settlement

agreement. The settlement agreement stated, in relevant part, that

Bandy would remove the encroachments she constructed and

repair the damage she caused within sixty days. And it stated that

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Bandy would “pay all attorney fees, court costs, and expenses

related to the Association’s enforcement of the Declaration,

including the surveyor fees (collectively, ‘Settlement Amount’).” The

settlement agreement did not identify the Settlement Amount but

stated that the Association would “deliver to [Bandy] its calculation

of the Settlement Amount” within seven days of its approval of

Bandy’s remediation work and that Bandy would then pay the

Settlement Amount to the Association within seven days. If Bandy

did not pay the Settlement Amount, the agreement authorized the

Association to file a motion asking the court to enter judgment for

that amount.1

¶4 The parties extended the deadline for Bandy to complete the

restoration work under the settlement agreement. The Association,

however, eventually asked the court to set a hearing to enforce the

settlement agreement. After an evidentiary hearing, the court found

that Bandy had not fully complied with the settlement agreement

and ordered her to perform additional remediation work. The court

1 The settlement agreement also included a separate provision

stating, “In the event that either [p]arty seeks to enforce this
[a]greement, the non-defaulting party shall be entitled to recovery
[sic] attorney fees and costs from the defaulting party.”

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also said, “[T]he payment regarding attorney[] fees and the

surveying that was part of the settlement agreement, those need to

be paid.”

¶5 After Bandy completed the required work, the Association filed

a motion to enforce the settlement agreement, alleging that Bandy

had failed to pay the Settlement Amount. Bandy objected to the

motion, arguing that the requested fees were “disputed” and

“unreasonable,” and requested a hearing on the reasonableness of

the requested attorney fees.2

¶6 Without holding a hearing, the court granted the Association’s

motion to enforce the settlement agreement; found the requested

$16,603 in attorney fees reasonable; and ordered Bandy to pay

them, along with the requested costs and surveyor fees.

II. Analysis

¶7 Bandy contends that the district court erred by granting the

Association’s motion to enforce the settlement agreement without

holding a hearing on the reasonableness of attorney fees. She also

2 In her objection, Bandy also challenged the reasonableness of the

surveyor fees. Because she doesn’t reassert this claim on appeal,
we deem it abandoned. See Armed Forces Bank, N.A. v. Hicks, 2014
COA 74, ¶ 38.

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asks us to determine (1) whether the statutory fees cap in section

38-33.2-123, C.R.S. 2025, of the Colorado Common Interest

Ownership Act applies to the Association’s requested fees; and

(2) whether the Association is the prevailing party.

A. Reasonableness Hearing

¶8 An attorney fees award must be reasonable. Crow v. Penrose-

St. Francis Healthcare Sys., 262 P.3d 991, 998 (Colo. App. 2011);

see also Parks v. Edward Dale Parrish LLC, 2019 COA 19, ¶ 27

(“[R]easonableness is an implied term in all contracts for attorney

fees . . . .”). And when a hearing is requested to determine the

reasonableness of attorney fees, “due process requires that the

[district] court hold such a hearing.” Roberts v. Adams, 47 P.3d

690, 700 (Colo. App. 2001); see also Shyanne Props., LLC v. Torp,

210 P.3d 490, 493 (Colo. App. 2009) (“If a party requests a hearing

concerning an award of fees, the [district] court must hold a

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hearing.”); cf. C.R.C.P. 121, § 1-22(2)(c) (when required to do so by

law, the court shall grant a party’s timely request for a hearing).3

¶9 We review a district court’s decision to award attorney fees

without holding a hearing for an abuse of discretion. See Roberts,

47 P.3d at 699. A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair, or based on a

misapplication of the law. Credit Serv. Co. v. Skivington, 2020 COA

60M, ¶ 17.

¶ 10 We agree with Bandy that her objection was sufficient to raise

a question about the reasonableness of the requested fees and that

the court should’ve granted her request for a hearing. See

Shyanne, 210 P.3d at 493. Indeed, it’s not clear why the court

denied Bandy’s request. Though the Association didn’t oppose her

3 If not required by law, a court has discretion under C.R.C.P. 121,

section 1-22(2)(c), to conduct a hearing in cases where fees are
“made to a prevailing party pursuant to a contract where the award
depends on the success of that party in the litigation.” Town of
Alma v. AZCO Constr., Inc., 985 P.2d 56, 58 (Colo. App. 1999),
aff’d, 10 P.3d 1256 (Colo. 2000). But Bandy agreed to pay the
Association’s fees as a settlement term independent from the
outcome of the litigation. Thus, Rule 121, section 1-22(2)(c),
doesn’t apply.

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request for a hearing, the order neither acknowledged her request

nor explained why a hearing wasn’t necessary.4

¶ 11 And insofar as the Association says that Bandy’s objection was

insufficient to entitle her to a hearing on the reasonableness of the

requested attorney fees, we disagree. Bandy’s objection specifically

challenged the reasonableness of the requested fees, argued why

she believed the fees were unreasonable, and requested a hearing to

determine the “reasonableness” of the requested fees. Bandy

therefore presented more than “a bare statement” that the

requested fees were unreasonable. See Hendricks v. Allied Waste

Transp., Inc., 2012 COA 88, ¶¶ 34-36 (concluding that the court did

not abuse its discretion by denying a request for a hearing on the

reasonableness of a bill of costs when the defendant stated only

that it “contest[ed] the reasonableness of the [p]laintiffs’ submitted

costs”). Thus, the court should’ve granted the request for a

hearing. See Gray v. State Farm Mut. Auto. Ins. Co., 826 P.2d 420,

4 We suspect that the court may have missed Bandy’s request,

which appeared in the final paragraph of her objection. However, to
the extent the court didn’t exercise its discretion to deny the
hearing, that is itself an abuse of discretion. See S. Cross Ranches,
LLC v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶ 48.

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421 (Colo. App. 1992) (requiring a hearing when a party “raised

questions and objections respecting the amount of fees”); accord

Shyanne, 210 P.3d at 493.

¶ 12 For these reasons, we reverse the order enforcing the

settlement agreement and remand the case to the district court for

a hearing on the reasonableness of the Association’s requested

attorney fees.

B. Section 38-33.3-123

¶ 13 As we understand it, Bandy asks us to determine the effect of

a 2024 amendment to section 38-33.3-123(1)(c), which added a cap

for attorney fees incurred in actions involving, among other things,

the enforcement of an Association’s declarations, bylaws, and

articles. See Ch. 422, sec. 1, § 38-33.3-123(1)(c), 2024 Colo. Sess.

Laws 2881-82. But the court didn’t award attorney fees under that

statute; it awarded fees under the settlement agreement. And to

the extent Bandy requests an advisory opinion about “[w]hat

[e]ffect” the amendment has “[o]n [t]he [p]resent [m]atter,” we

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decline to give one.5 See People in Interest of Vivekanathan, 2013

COA 143M, ¶ 14.

C. Prevailing Party

¶ 14 Finally, Bandy now argues that the court abused its discretion

by implicitly finding that the Association was the prevailing party.

But the Association sought to enforce the terms of the settlement

agreement under which Bandy agreed to pay the Association’s fees.

And Bandy agreed before the district court that she owed the

Association’s fees; she just disputed reasonableness. We therefore

don’t see — and Bandy doesn’t explain — why the court would have

been required to make a prevailing party determination to enforce

Bandy’s undisputed agreement to pay the Association’s attorney

fees. Because the argument is undeveloped, we will not consider it

further. See Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC,

2020 COA 34, ¶ 41 n.12, aff’d, 2021 CO 56.

5 In support of her statutory argument, Bandy relies on two

unpublished decisions by divisions of this court. That’s
impermissible, and we suggest that counsel acquaint themselves
with our policy prohibiting the citation of unpublished opinions.
See Colo. Jud. Branch, Court of Appeals Policies, Policy Concerning
Citation of Opinions Not Selected for Official Publication (2026),
https://perma.cc/ZQW2-H29D.

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III. Appellate Attorney Fees and Costs

¶ 15 Both parties request appellate attorney fees and costs, though

on different grounds.

¶ 16 Bandy requests an award of appellate attorney fees and costs

under section 38-33.3-123 and C.A.R. 39.1. But Bandy doesn’t

“explain the legal and factual basis” for her request, and her “[m]ere

citation to [Rule 39.1] or to a statute” is insufficient. C.A.R. 39.1;

see also Andres Trucking Co. v. United Fire & Cas. Co., 2018 COA

144, ¶ 63 (declining to consider a request for attorney fees when the

requesting party did not provide any supporting factual recitation or

legal authority). We therefore deny Bandy’s fees request but agree

that she is entitled to appellate costs under C.A.R. 39(a)(3).

¶ 17 The Association requests its fees and costs under the

settlement agreement’s prevailing party provision and Rule 39.1.

But because we reverse the court’s order, we deny the Association’s

fees request.

IV. Disposition

¶ 18 We reverse the order and remand the case for further

proceedings consistent with this opinion.

JUDGE J. JONES and JUDGE FOX concur.

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