Charles v. Grouse

19CA0206 & 21CA0296 Charles v Grouse 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals Nos. 19CA0206 & 21CA0296
Eagle County District Court No. 13CV30255
Honorable Frederick W. Gannett, Judge
Honorable Russell H. Granger, Judge

Wendy St. Charles,

Plaintiff-Appellant,

v.

Grouse Glen at Vail, a/k/a Grouse Glen at Vail Condominium Association, a
Colorado non-profit corporation,

Defendant-Appellee.

JUDGMENT AFFIRMED, ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE HARRIS
Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Foster, Graham, Milstein & Calisher, LLP, Chip G. Schoneberger, Denver,
Colorado, for Plaintiff-Appellant

Hall & Evans, LLC, Conor P. Boyle, Denver, Colorado, for Defendant-Appellee
¶1 In these consolidated appeals1 arising from a homeowners’

association dispute, plaintiff, Wendy St. Charles, appeals the

dismissal of her former co-plaintiffs from the lawsuit and the trial

court’s order awarding attorney fees to defendant, Grouse Glen at

Vail Condominium Association (HOA). We affirm the dismissal,

reverse the attorney fees order, and remand the case for further

proceedings.

I. Background

¶2 St. Charles and her former co-plaintiffs, Reven and John

Wright, own two of the eleven units in Grouse Glen at Vail

Condominiums (Grouse Glen), a development in Vail, Colorado,

governed by the HOA. Around 2013, two primary disputes arose

between the plaintiffs and the HOA.

¶3 The first involved a parking garage assessment. A parking

garage adjacent to the development provides covered parking for

some, but not all, of the Grouse Glen unit owners. Historically, the

cost of maintaining and renting space in the parking garage was

allocated to the owners based on the size of each owner’s unit. In

1 St. Charles separately appealed the underlying judgment and the

order awarding attorney fees. The appeals were later consolidated.

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2013, however, the HOA adopted an amendment providing that the

garage assessment would be split equally among the owners despite

the fact that four new parking spaces would be dedicated to certain

units.

¶4 The second dispute involved a construction project at the

development. The HOA planned to replace the roof on the building

in which the co-plaintiffs’ units were located. St. Charles and the

Wrights preferred one type of shingle, but the HOA adopted a

roofing plan approving a different kind of shingle.

¶5 The Wrights and St. Charles filed a complaint, which they later

amended, asserting a twenty-five-part claim for declaratory and

injunctive relief, as well as claims for breach of fiduciary duty and

intentional infliction of emotional distress.

¶6 Some of the claims were resolved before trial — mostly, but

not entirely, in the HOA’s favor. Other claims, including the

intentional infliction of emotional distress claim, were voluntarily

dismissed.

¶7 Meanwhile, the Wrights settled their claims against the HOA,

and the court dismissed them from the lawsuit, leaving St. Charles

as the sole plaintiff. She proceeded to a bench trial in 2017.

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¶8 The court resolved three claims at the trial. In a thorough,

written order, it partially granted one of St. Charles’ claims for

declaratory relief, requiring the HOA to permanently adopt a plan

making the four new parking spaces available to all unit owners.

But it denied her claim related to three pre-existing parking spaces

as well as her claim for breach of fiduciary duty.

¶9 The “judgment and order” section included one sentence

declaring the HOA the prevailing party: “The Court in its discretion

determines that the [HOA] is the prevailing party for purposes of

attorney fees and costs pursuant to [section] 38-33.3-123(1)(c)[,

C.R.S. 2024,] and C.R.C.P. 54, and awards the [HOA] its reasonable

attorney fees and costs in defending this action.” It ordered the

HOA to submit “the amount of attorney fees and costs” within

fourteen days.

¶ 10 After a hearing on the reasonableness of the HOA’s fee

request, the court awarded the HOA nearly $200,000 in attorney

fees.

II. Discussion

¶ 11 St. Charles contends that the trial court erred by

(1) dismissing the Wrights from the lawsuit without giving her an

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opportunity to seek conditions on their dismissal and (2) failing to

follow the mandatory procedures for awarding attorney fees.

A. Dismissal of the Wrights’ Claims

¶ 12 In December 2014, the parties engaged in mediation, during

which the Wrights settled their claims against the HOA. At the

time, the plaintiffs were jointly represented.

¶ 13 Three months later, the court issued an order in which it

noted that the HOA had resolved all of the Wrights’ claims, and “a

stipulation to dismiss those claims w[ould] be filed after final

execution of settlement documents.” More than a year later, in

June 2016, the Wrights, acting pro se, and the HOA filed a joint

stipulation to dismiss the Wrights’ claims, with each side to bear its

own costs and attorney fees. The next day, the court entered an

order on the stipulation, dismissing the claims.

¶ 14 As we understand St. Charles’ argument, she contends that,

pursuant to C.R.C.P. 21 or 41(a), the court should have considered

whether the Wrights’ dismissal from the lawsuit would have

prejudiced her and, if so, it should have either refused to dismiss

their claims or crafted conditions to cure the prejudice. St. Charles

says that, given the chance, she would have urged the court to

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condition the Wrights’ dismissal on a requirement that the HOA

forgo collecting attorney fees (or some portion of them) from St.

Charles through the date of the stipulation.

¶ 15 We conclude that St. Charles waived this claim, particularly in

light of the relief requested.

¶ 16 In civil cases, a party’s failure to preserve a claim of error

results in a waiver of the right to raise the issue on appeal. See,

e.g., Vanderpool v. Loftness, 2012 COA 115, ¶ 35. An exception

applies when the court rules sua sponte on an issue, depriving the

party of an opportunity to object. Rinker v. Colina-Lee, 2019 COA

45, ¶ 26.

¶ 17 We disagree with St. Charles that the court’s order adopting

the stipulation deprived her of an opportunity to object to the

Wrights’ unconditional dismissal from the case. St. Charles knew

as early as December 2014 that the Wrights had settled their claims

against the HOA. She did not attempt at that point, or any point

thereafter, to object to their dismissal or to condition the dismissal

of their claims in any way. Even when the court alerted her that a

“stipulation” rather than a “motion” would be filed to dismiss the

claims, St. Charles did nothing.

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¶ 18 To the extent she now contends that she could not have

proposed conditions for dismissal until after the Wrights and the

HOA submitted their joint stipulation, we reject that contention.

True, St. Charles might not have known the precise terms of the

other parties’ settlement, but she could certainly have anticipated

that the settlement would resolve — one way or another — the issue

of attorney fees. If she wanted to prevent the Wrights’ dismissal

except under certain conditions related to attorney fees, she could

have made her position known as soon as the court advised that

the Wrights would be dismissed by stipulation. Instead, she waited

almost ten years to raise the issue.

¶ 19 Under the circumstances, we will not attribute St. Charles’

failure to preserve her claim to the timing of the trial court’s order.

¶ 20 Indeed, a finding of waiver is particularly appropriate here,

given the nature of the relief requested. St. Charles seeks a remand

to be put back in a position to object to the Wrights’ dismissal

unless certain conditions are imposed. But neither the other

parties nor the court can be put back into their previous positions.

As St. Charles’ counsel acknowledged at oral argument, the court

cannot force the Wrights to reenter a case from which they were

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dismissed nearly ten years ago and in which a final judgment has

now entered. But also, how could the court impose a retroactive

condition of dismissal that precludes the HOA from obtaining

attorney fees from St. Charles? The HOA might not have agreed to

the same settlement terms if it had known that dismissal of the

Wrights’ claims came with that condition.

¶ 21 Accordingly, we conclude that St. Charles has waived any

contention of error related to the Wrights’ dismissal. See Melat,

Pressman & Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61,

¶ 18.

B. Attorney Fee Award

¶ 22 At the end of the bench trial, both parties submitted proposed

findings of fact and conclusions of law, and both parties proposed

that the court name them the prevailing party. As noted, at the end

of its own findings and conclusions, the court declared the HOA the

prevailing party without explanation.

¶ 23 In accordance with the court’s order, the HOA submitted a

statement of attorney fees briefly summarizing the case’s procedural

history and then setting forth support for its specific attorney fee

request. The statement noted that the court had already

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determined the HOA to be the prevailing party and had “awarded

the [HOA] its reasonable attorney fees.” St. Charles objected to the

amount of fees, in part on the ground that she had prevailed on

what she characterized as the most significant issue in the case.

¶ 24 Before the hearing on the HOA’s attorney fee request, the trial

judge retired, and the case was transferred to a new judge. After

the hearing, the court awarded fees to the HOA. In its written

order, the court noted that the former trial judge’s prevailing party

determination was “law of the case.” It reduced the HOA’s fee

request by one-third, however, because fees incurred to defend

against the breach of fiduciary duty claim were not recoverable

under the governing statute. Thus, the court entered judgment in

favor of the HOA for $180,998.57.

¶ 25 St. Charles contends that the attorney fee award must be

reversed based on the court’s failure to comply with C.R.C.P.

121, section 1-22(2), or to make sufficient factual findings. We

agree.

1. Applicable Law and Standard of Review

¶ 26 In Colorado, attorney fees are generally recoverable only as

permitted by a statute, court rule, or private contract. Plan.

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Partners Int’l, LLC v. QED, Inc., 2013 CO 43, ¶ 13. Here, the trial

court acknowledged that the only basis for awarding fees was the

Colorado Common Interest Ownership Act (CCIOA). See

§§ 38-33.3-101 to -401, C.R.S. 2024.

¶ 27 CCIOA “establishes a uniform framework for the creation and

operation of common interest communities.” FD Ints., LLC v.

Fairways at Buffalo Run Homeowners Ass’n, 2019 COA 148, ¶ 24.

The statute authorizes the award of “reasonable attorney fees . . . to

the prevailing party” in actions “to enforce or defend . . . the

declaration, bylaws, articles, or rules and regulations” of such a

community. § 38-33.3-123(1)(c)(I). Whether this fee-shifting

provision applies depends on the purpose of the litigation. See Colo.

Homes, Ltd. v. Loerch-Wilson, 43 P.3d 718, 723 (Colo. App. 2001)

(declining to award fees under CCIOA where the primary purpose of

the tort claim at issue was to secure damages rather than enforce a

declaration).

¶ 28 C.R.C.P. 121, section 1-22(2), applies to any request for

attorney fees, regardless of the basis of the request. Under that

rule, the party seeking fees “shall file and serve a motion for

attorney fees” explaining, among other things, “the basis upon

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which fees are sought.” C.R.C.P. 121, § 1-22(2)(b). The rule allows

for a response and a reply and gives the court discretion to order

discovery on the motion. Id. If a party requests a hearing on the

motion, due process requires that the court hold one. Walker v.

Women’s Pro. Rodeo Ass’n, 2021 COA 105M, ¶ 81; C.R.C.P. 121,

§ 1-22(2)(c). Finally, the rule requires the court to “make findings of

fact to support its determination of the motion.” C.R.C.P. 121, § 1-

22(2)(c).

¶ 29 We review a trial court’s prevailing party determination for an

abuse of discretion. Anderson v. Pursell, 244 P.3d 1188, 1193-94

(Colo. 2010); Sinclair Transp. Co. v. Sandberg, 2014 COA 75M, ¶ 26.

But we review de novo whether the trial court applied the correct

legal standard, including whether it complied with a rule of civil

procedure. See Strudley v. Antero Res. Corp., 2013 COA 106, ¶¶ 13,

34.

2. Analysis

¶ 30 The HOA again raises preservation, arguing that St. Charles

waived this claim by failing to object in the trial court. This time,

we disagree.

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¶ 31 Unlike its dismissal of the Wrights’ claims, the court’s sua

sponte entry of an order holding that the HOA was entitled to

attorney fees as the prevailing party deprived St. Charles of an

opportunity to object at the right time. The HOA says that St.

Charles should have filed a C.R.C.P. 59 motion after the fact to

preserve her claim. But it also acknowledged at oral argument that,

as a general matter, a party need not file a Rule 59 motion to

preserve its right to appeal an issue. See C.R.C.P. 59(b). At any

rate, she could not have preserved the issue for appellate review by

raising it for the first time in a Rule 59 motion. See Briargate at

Seventeenth Ave. Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66.

¶ 32 We are likewise unpersuaded that St. Charles invited the

court’s error. Under the invited error doctrine, a party cannot ask

the court to take a particular action and then, when it does,

complain on appeal that the action amounted to reversible error.

See, e.g., McGill v. DIA Airport Parking, LLC, 2016 COA 165, ¶ 9.

True, in their proposed findings and conclusions, both parties

asked the court to find that they were the prevailing party. But

invited error is a “narrow doctrine,” People v. Rediger, 2018 CO 32,

¶ 34, and in this case, the court did not take the action that St.

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Charles requested. Nor did St. Charles specifically ask the court to

deviate from the mandatory procedures in C.R.C.P. 121, section

1-22.

¶ 33 Under these circumstances, we conclude that the exception to

the preservation requirement applies. See Rinker, ¶ 26. Therefore,

we turn to the merits.

¶ 34 The HOA insists that the procedures followed here complied

with C.R.C.P. 121, section 1-22, because St. Charles had a chance

to file a response to the HOA’s fee request and to challenge the

reasonableness of the fees at a hearing. But by then, the court had

already decided the issue.

¶ 35 A party requesting an award of attorney fees has the burden to

prove by a preponderance of the evidence that it is entitled to them.

See Crow v. Penrose-St. Francis Healthcare Sys., 262 P.3d 991, 998

(Colo. App. 2011). The court’s sua sponte ruling relieved the HOA

of its burden and deprived St. Charles of an opportunity to address

the question of prevailing party.

¶ 36 We cannot accept the HOA’s invitation to independently find

that it was the prevailing party and affirm on that ground. For the

reasons we explain in a moment, the court’s findings are

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insufficient to permit our review of the court’s ruling, much less to

make our own findings on prevailing party.

¶ 37 A court must make sufficient findings to permit meaningful

appellate review of an attorney fee award. Cronk v. Bowers, 2023

COA 68M, ¶ 33. Here, the court did not make any findings. It

merely granted in part and denied in part one of the declaratory

judgment claims and denied the breach of fiduciary duty claim. St.

Charles’ declaratory relief claim contained twenty-five subparts,

though, and according to the HOA’s pretrial memorandum, ten of

them were at issue at the trial. It is not clear to us, from the court’s

judgment, how the other issues were disposed of and who prevailed

on each. And it is also unclear which, if any, of the subclaims for

relief required the HOA to “enforce or defend . . . the declaration”

such that it would be entitled to fees under CCIOA.

§ 38-33.3-123(1)(c). Under CCIOA, to be a prevailing party, the

party requesting fees must have succeeded “upon a significant issue

presented by the litigation” and have “achieved some of the benefits

that [s]he sought in the lawsuit.” Buffalo Run, ¶ 59 (quoting In re

Marriage of Sanchez-Vigil, 151 P.3d 621, 625 (Colo. App. 2006)).

The court’s ruling does not address the significance of the claims or

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the benefits achieved. And because the second judge determined

that only one of the two claims listed in the judgment arose under

CCIOA, we do not know if this fact would have affected the original

judge’s prevailing party finding.

¶ 38 In sum, we conclude that the trial court failed to comply with

C.R.C.P. 121, section 1-22, and failed to make sufficient findings to

permit meaningful review of its prevailing party ruling.

Consequently, we must reverse the attorney fee order and remand

for further proceedings.

III. Appellate Attorney Fees

¶ 39 Both parties request their appellate attorney fees under

C.A.R. 39.1 and section 38-33-123. See Accetta v. Brooks Tower

Residences Condo. Ass’n, 2021 COA 87, ¶ 66 (holding that appellate

attorney fees may be awarded under CCIOA).

¶ 40 Because we reverse the trial court’s attorney fee award, we

decline as “premature” the requests to award appellate attorney

fees. Bedard v. Martin, 100 P.3d 584, 593 (Colo. App. 2004).

Instead, the trial court must consider the parties’ requests for

appellate fees following the remand proceedings.

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IV. Disposition

¶ 41 The judgment is affirmed, the attorney fees order is reversed,

and the case is remanded for further proceedings.

JUDGE GROVE and JUDGE PAWAR concur.

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