Lichina Trust v. Gjovig Trust

23CA1815 Lichina Trust v Gjovig Trust 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1815
El Paso County District Court No. 21CV31417
Honorable Thomas K. Kane, Judge

Lichina Revocable Living Trust,

Plaintiff-Appellant and Cross-Appellee,

v.

Elinore H. Gjovig Revocable Trust,

Defendant-Appellee and Cross-Appellant.

JUDGMENT REVERSED, ORDER AFFIRMED,
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE KUHN
Harris and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

Messner Reeves LLP, Brenda L. Bartels, Colorado Springs, Colorado, for
Plaintiff-Appellant and Cross-Appellee

Sparks Willson, P.C., Scott W. Johnson, Julie B. Petersen, Colorado Springs,
Colorado, for Defendant-Appellee and Cross-Appellant
¶1 In this action to determine the existence of an implied

easement of necessity, plaintiff, the Lichina Revocable Living Trust

(the Lichina Trust), appeals the trial court’s judgment entered

following a bench trial in favor of defendant, the Elinore H. Gjovig

Revocable Trust (the Gjovig Trust). On cross-appeal, the Gjovig

Trust challenges the court’s order denying its request for an award

of attorney fees. We affirm the attorney fee order but reverse the

judgment and remand the case to the trial court for further

proceedings consistent with this opinion.

I. Background

¶2 We draw the following factual background from the record and

the trial court’s “Findings of Fact, Conclusions of Law, and

Judgment,” entered after the bench trial.

¶3 The dispute between the parties concerns neighboring parcels

of land in Cascade, located in El Paso County. In 1948, the

Cascade Town Company was the common owner of the land

depicted on the map below, labeled as Figure 1.

1
Figure 1

In November of that year, one of the company’s owners, Frank

Cusack, signed a deed conveying Parcel 2 to himself. Parcels 1 and

3 remained with the Cascade Town Company. A few weeks later,

the Cascade Town Company transferred Parcel 1 to Leonard and

Carrie Dittemore. The Cascade Town Company retained Parcel 3

until 1966, when the company’s other owner, Charles Cusack,

deeded that property to himself.1 Parcel 3 was later acquired by

John Barnes.

¶4 In 1969, Elinore H. Gjovig and her husband Gordon (who is

now deceased) acquired Parcel 1 from the Dittemores’ successor in

interest. Nine years later, the Gjovigs also acquired a portion of

Parcel 2, which at the time was owned by Frank Cusack’s wife,

1 Charles Cusack was the brother of Frank Cusack.

2
Helen. And in late 2003, Thomas (Tom) Lichina and his wife, Mary,

acquired the remainder of Parcel 2 from the estate of the Cusacks’

daughter to whom Helen Cusack had conveyed the property in

1985. Gjovig and the Lichinas eventually transferred the title to

their respective parcels to the trusts they each had formed.

¶5 As a result of these conveyances, the Gjovig Trust and the

Lichina Trust own parcels of land marked as the “Gjovig Home” and

the “Lichina Lot,” respectively, on the map below that is labeled as

Figure 2.

Figure 2

3
¶6 As shown in Figure 2, the Lichina Trust’s lot lacks access to a

public road, including U.S. Highway 24, which runs to the west of

it. The parcel is landlocked and is bordered by the Lichinas’ other

property (which contains a residence and rental property) to the

east, property owned by third parties to the northeast and south,

and the Gjovig Trust’s property to the west and northwest. Lichina

testified at trial that due to the parcel’s location and difficult

terrain, he and his wife could access it only by a road that runs

across the Gjovig Trust’s property. That access road — marked as a

dashed line in Figure 2 — enters the Gjovig Trust’s property at its

farthest northwestern boundary, traverses east almost to its

northeastern corner, turns south, and connects with the northern

portion of the Lichina Trust’s undeveloped lot.

¶7 The Lichinas had used the access road to get to the parcel

before and after purchasing it; however, Gjovig later blocked access

to the road with a gate and refused to grant them an easement

across her land. The Lichina Trust filed this lawsuit in September

2021, asserting a claim for an implied easement of necessity over

the access road. It amended its complaint roughly two months later

to assert a claim for a prescriptive easement, which it pleaded in the

4
alternative. The court later granted the Gjovig Trust’s motion for

partial summary judgment and dismissed the prescriptive easement

claim.

¶8 After a half-day trial to the bench, the trial court issued its

findings of fact and conclusions of law. The court determined that

the Lichina Trust failed to establish the existence of an implied

easement of necessity over the access road. The Gjovig Trust then

filed a timely motion seeking an award of $100,826.50 in attorney

fees and $4,213.48 in costs. The court awarded the requested costs

but denied the attorney fee request.

II. Analysis

¶9 On appeal, the Lichina Trust contends that the trial court

erred by concluding that it had no easement of necessity over the

road allowing access to its land. On cross-appeal, the Gjovig Trust

contends that the court erred by denying its motion for an award of

attorney fees incurred in defending against this suit. We agree with

the Lichina Trust in part and consequently reverse the trial court’s

judgment denying the trust’s easement of necessity claim. But

because we disagree with the Gjovig Trust’s challenge, we affirm the

court’s attorney fee order.

5
A. Implied Easement of Necessity

¶ 10 The Lichina Trust argues that the trial court erred by

determining that it wasn’t entitled to an implied easement of

necessity over the access road that runs across the Gjovig Trust’s

property. Specifically, the Lichina Trust argues that the trial court

erred by (1) finding that the Lichina Trust presented no evidence of

the purpose for which its parcel was originally conveyed; (2) finding

that the Cusacks thought that the parcel was unbuildable and any

access unnecessary; and (3) determining that there was no great

necessity for the easement given that the Lichina Trust established

that its lot was “landlocked and useless without the easement.” We

agree with the Lichina Trust that there is no record support for the

challenged findings of the trial court and that the court misapplied

one of the legal requirements for an easement of necessity.

1. Applicable Law and Standard of Review

¶ 11 “An easement by necessity arises when the owner of a parcel

of land grants part of the land to another party, leaving either the

part granted or the part retained without access except through the

other part.” Amada Fam. Ltd. P’ship v. Pomeroy, 2021 COA 73,

¶ 58. To establish an easement of necessity, a party claiming the

6
easement must show that (1) there was a unity of ownership of the

entire tract of land before the land was divided into separate lots;

(2) the necessity for the easement existed at the time of such

severance; and (3) the necessity for the particular easement is great.

Thompson v. Whinnery, 895 P.2d 537, 540 (Colo. 1995). The

burden of proving that an implied easement of necessity exists is on

the party claiming the easement. Id.

¶ 12 An implied easement of necessity “has its roots in

considerations of public policy that militate against rendering a

tract of land useless for lack of access.” Id. When a property is

landlocked and lacks access to a public road as a result of division

from its common owner, an easement is implied because “the law

assumes that no person intends to render property conveyed

inaccessible for the purpose for which it was [g]ranted.” Wagner v.

Fairlamb, 379 P.2d 165, 169 (Colo. 1963). Accordingly, whether

reasonable means of access existed at the time of severance

depends on whether the access route was adequate to effectuate the

purpose for which the property was originally granted. See

Thompson, 895 P.2d at 541. A property’s purposes include not only

the purposes the parties explicitly identified at the time of

7
conveyance, but also those uses the parties reasonably expected

based on normal development of the property. Id.; see also

Pomeroy, ¶ 59.

¶ 13 However, “[g]enerally implied easements have not been looked

upon with favor by the courts.” Wagner, 379 P.2d at 167. “The

requirement that the necessity for a particular easement must be

great reflects the application of that principle in the context of

easements of necessity.” Thompson, 895 P.2d at 540 n.7. To

satisfy that requirement, a party seeking an easement of necessity

must show that there is “a practical inability to have access any

other way than by a way of necessity.” Wagner, 379 P.2d at 168.

¶ 14 While “absolute physical impossibility of reaching the alleged

dominant estate is not a requisite, an easement by implication will

not be found if there are alternatives offering reasonable means of

ingress and egress.” Campbell v. Summit Plaza Assocs., 192 P.3d

465, 470 (Colo. App. 2008). In making that determination, courts

must consider whether the property is presently accessible any

other way. See LeSatz v. Deshotels, 757 P.2d 1090, 1092 (Colo.

App. 1988) (concluding that there was no great necessity for the

sought easement because the plaintiff, among other things, could

8
create access to his property by building a bridge); Bittle v.

CAM-Colo., LLC, 2012 COA 93, ¶¶ 35-37 (concluding that the

plaintiff failed to satisfy the “great necessity” element because the

property was presently accessible from another property).

¶ 15 When, as here, a district court enters judgment following a

bench trial, we review that judgment as a mixed question of fact

and law. See Fear v. GEICO Cas. Co., 2023 COA 31, ¶ 15, aff’d,

2024 CO 77. In doing so, we accept the court’s findings of fact

unless they are clearly erroneous and unsupported by the record,

but we review de novo its legal conclusions. Id.

¶ 16 Likewise, whether the trial court applied the correct legal

standard is a question of law that we review de novo. Wal-Mart

Stores, Inc. v. Crossgrove, 2012 CO 31, ¶ 7.

2. The Trial Court Erred by Concluding that the Lichina
Trust Wasn’t Entitled to an Implied Easement
of Necessity Over the Access Road

¶ 17 As an initial matter, the parties don’t dispute that the first

element of the easement of necessity claim is present here. Indeed,

the Gjovig Trust’s trial counsel conceded that element in his

opening statement and the record shows, as we note above, that

both parcels were under the common ownership of the Cascade

9
Town Company until late 1948. The parties’ dispute revolves

around the other two elements of the claim — the requirements that

the necessity must have existed at the time the unity of ownership

was severed and that the necessity for the particular easement

must be great. See Thompson, 895 P.2d at 540.

¶ 18 The trial court determined that the Lichina Trust failed to

establish those two elements. It noted that the Lichina Trust

presented no evidence that the necessity for the sought-after

easement existed when the Cascade Town Company divided the

land into the individual parcels that the parties eventually acquired.

The court observed that “[the Lichina Trust] did not address the

time of severance in its presentation. Instead, [the Lichina Trust]

focused its case entirely on its claim of present necessity for an

easement.” And the court found that, at the time of severance, an

easement over the access road across the Gjovig Trust’s property

wasn’t necessary because the Lichina Trust’s property was

accessible by a road that crossed the retained land of the Cascade

Town Company on the parcel that became the Barnes property.

The court reasoned that under these circumstances, “there was no

necessity, let alone great necessity,” to use the Gjovig Trust’s

10
property for access across land the company had already conveyed

to third parties.

¶ 19 We disagree with the trial court’s ruling because (1) the record

doesn’t support its determination that the requested easement

wasn’t necessary at the time of severance, and (2) the court failed to

apply the proper legal standard in evaluating the third element of

the Lichina Trust’s claim.

a. The Record Doesn’t Support the Trial Court’s Determination
that There Was No Necessity at the Time of Severance

¶ 20 Initially, we clarify the layout of the access road at the time of

severance because the parties’ submissions regarding this issue —

both in the trial court and on appeal — are confusing. The record

shows that the road the Lichina Trust is seeking an easement over

is only a portion of the access road that existed when its parcel was

severed from the common ownership of the Cascade Town

Company. We reach this conclusion after reviewing the evidence

the trial court relied on to find that there was another way of

reaching the Lichina Trust’s property in 1948; namely, aerial

photographs of the neighborhood and the plans from the Colorado

Department of Transportation (CDOT) in connection with U.S.

11
Highway 24, which ran across the parties’ land until it was moved

to its current location in the 1930s.

¶ 21 As of the time of severance on November 17, 1948, the

Cascade Town Company had conveyed Parcel 2 but retained Parcel

1 and Parcel 3 on Figure 1. The photographs from 1947, 1953, and

1960, and the CDOT plans from the 1930s and 1960s, showed a

single road entering the Gjovig Trust’s property from U.S. Highway

24, going across the Lichina Trust’s parcel, proceeding east through

the other parcel that the Cascade Town Company retained, and

then connecting to U.S. Highway 24 again. The retained parcel

through which the eastern portion of the access road once traversed

is marked as Parcel 3 in Figure 1 and as the “Barnes” property in

Figure 2.

¶ 22 However, it is undisputed that this part of the access road

became impassable over time. Indeed, the parties stipulated that

“[t]he former road to the east of the Lichina [Trust’s] property

through the Barnes property [was] no longer [usable] due to slope

and roadway changes in topography adjacent to Highway 24.” The

trial court nonetheless determined that an easement over the Gjovig

Trust’s property wasn’t necessary at the time of severance because

12
the Lichina Trust’s property could be reached from the Barnes

property. We disagree with the court for two reasons.

¶ 23 First, just because the access road had two entry points that

could be used to reach the Lichina Trust’s property doesn’t mean

that an easement over the entire access road wasn’t necessary

when the Cascade Town Company divided up the land. In other

words, we’re not persuaded that the parties to the original

conveyance intended for the Lichina Trust’s property to only be

accessible through that portion of the road across the Barnes

property but not the portion of the road across the Gjovig Trust’s

property. See Campbell, 192 P.3d at 472 (noting that in

determining whether the necessity existed at the time of severance,

we consider the intent of the parties to the conveyance). After all, at

the time the Lichina Trust’s property was severed, the Cascade

Town Company retained both the Barnes property and the Gjovig

Trust property (though only for a short time), leaving the Lichina

Trust’s parcel without access to U.S. Highway 24 except through

the Cascade Town Company’s retained land. This fact raises the

presumption that an easement over the access road crossing the

retained land — including both the Gjovig Trust’s property and the

13
Barnes property — was necessary at the time of severance. See

Wagner, 379 P.2d at 168 (an easement of necessity is implied

“where the lands conveyed are without ingress or egress except over

lands retained”). Thus, to the extent the trial court determined that

an implied easement over the Gjovig Trust’s property wasn’t

necessary at the time of severance because that property was

owned by third parties (i.e., the Dittemores), that determination is

not supported by the record.

¶ 24 Second, the trial court determined that the Lichina Trust

failed to establish that the easement was necessary at the time of

severance in part because the court (1) found that the Lichina Trust

“presented no evidence of the purpose for which its property was

conveyed” and (2) “infer[red] that the Cusacks recognized that the

hostile topography rendered the property unbuildable, and access

therefore unnecessary.” We agree with the Lichina Trust’s

argument that these two factual findings aren’t supported by the

record.

¶ 25 Relying on Campbell, Pomeroy, and Bittle, the Lichina Trust

asserts that the purpose for which it intended to use the property

(i.e., for a garage) constituted “normal development” that was

14
reasonably expected when the property was first severed by the

Cascade Town Company in 1948. In support, it points out that a

house on the Gjovig Trust’s property was constructed shortly after

the severance. Put differently, the Lichina Trust argues that

because neighboring parcels have been used for residential

development, its parcel was likewise divided for that purpose and

that the trial court erred by finding that it presented no evidence in

that regard.

¶ 26 Thus, the Lichina Trust relies on the principle that the

purpose for which a property was conveyed may be implied from the

property’s normal development in the circumstances where the

parties failed to explicitly identify that purpose. However, we need

not address this argument because the parties to the original

conveyance expressly stated the purpose for which the Lichina

Trust’s parcel may be used. The language of the deed from 1948

explicitly indicated that the parcel was intended for residential

development. The deed said that the “conveyance [was] made upon

the express condition . . . that no structure other than a dwelling

house or buildings appurtenant thereto shall be erected” on the

parcel. (Emphasis added.) Therefore, the record doesn’t support

15
the trial court’s finding that the Lichina Trust presented no

evidence of the purpose for which its parcel was conveyed.

¶ 27 We also agree with the Lichina Trust’s argument that there is

no record support for the trial court’s inference that the Cusacks

intended to leave the parcel without access because it was

unbuildable. True, photos and the topographical map of the parcel

show a steep, rocky, and rugged terrain. But nothing in the record

suggests that the Cusacks thought that any access was

unnecessary because the parcel wasn’t suitable for development

due to its hostile topography. Indeed, the fact that, at the time of

severance, the Lichina Trust’s property was accessible by the same

road as the other two properties of the common owner supported a

contrary inference. And perhaps more importantly, the parts of the

original deed quoted above disproved that inference altogether.

¶ 28 Because the trial court’s findings aren’t supported by the

record, we conclude that the court erred when it determined that

the Lichina Trust failed to establish that the necessity for the

easement over the Gjovig Trust’s property existed at the time of

severance.

16
b. The Trial Court Erred in Assessing the Third Element
of the Lichina Trust’s Easement of Necessity Claim

¶ 29 We also conclude that the trial court erred in analyzing

whether the Lichina Trust established great necessity for the

easement over the Gjovig Trust’s property. The court observed that

the Lichina Trust didn’t “present any evidence of great necessity for

‘the particular easement’ sought, at the time of severance.” It then

concluded that the Lichina Trust failed to satisfy this requirement

because at the time of severance, the portion of the access road

across the Barnes property offered reasonable means of ingress and

egress. Put differently, the court determined that there was no

great necessity for the easement over the Gjovig Trust’s property for

the same reason there was no necessity at the time of severance.

¶ 30 But the “great necessity” element is separate and distinct from

the requirement that the necessity for the sought-after easement

existed at the time of severance. While the latter element requires a

court to consider only the circumstances as they existed when the

dominant estate was severed from the common ownership, the great

necessity element requires the court to also consider whether the

requested easement is presently necessary. See LeSatz, 757 P.2d at

17
1092; Bittle, ¶¶ 35-37; see also Bob Daniels & Sons v. Weaver, 681

P.2d 1010, 1017 (Idaho Ct. App. 1984) (stating that, under Idaho

law, the third element of the claim requires “great present necessity

for the easement”).

¶ 31 In assessing great necessity at the time of severance, the trial

court relied on a statement from Campbell providing that “[t]he

critical time in determining the existence of an easement by

necessity is the time when the dominant estate is severed from the

servient estate.” 192 P.3d at 470 (quoting Hurlocker v. Medina, 878

P.2d 348, 351 (N.M. Ct. App. 1994)). But the trial court’s reliance

on this language was misplaced. Even though the Campbell

division noted that the time of severance was “critical” when

determining whether an easement of necessity exists, it also

considered the present circumstances in addressing the third

element of the claim. The division affirmed the trial court’s

determination that the necessity for the easement was great in part

because the plaintiffs’ lot was presently landlocked, they “were

unable to negotiate access to their lot over any of the other adjacent

property,” the lack of access rendered the lot useless, and that

result was contrary to public policy. Id. at 472-73. Thus, Campbell

18
doesn’t stand for the proposition that whether the necessity for the

particular easement is great should only be assessed at the time of

severance.2 See LeSatz, 757 P.2d at 1092 (assessing great necessity

at time of suit); Bittle, ¶¶ 35-37 (same).

¶ 32 The trial court here misapplied Campbell and other cases of

this court referenced above by only considering the time of

severance to determine whether the Lichina Trust established the

third element of its easement of necessity claim. The court

essentially collapsed two separate requirements of the claim by

concluding that the fact the Lichina Trust’s property was accessible

at the time of severance from the two entry points for the same road

automatically meant that there was no great necessity for the

easement, even though the circumstances have changed since the

severance and only a portion of the former road still exists. We

conclude that by limiting its analysis to the circumstances existing

at the time of severance, the court failed to apply the correct legal

standard.

2 Notably, Hurlocker v. Medina, 878 P.2d 348, 351 (N.M. Ct. App.

1994), the case Campbell quoted, used the “critical time” language
in connection with the unity of ownership element of the claim, not
in connection with great necessity.

19
¶ 33 In doing so, the court also failed to consider evidence of the

present great necessity for the easement over the Gjovig Trust’s

property. For example, Lichina testified that his trust’s parcel

wasn’t accessible from his home on foot or otherwise due to the

sixty percent drop between the two parcels. Cf. Bittle, ¶ 35

(concluding that a party failed to establish great necessity for the

particular easement when the alleged dominant estate was

accessible on foot from another property of the party). He also

testified that while he had driven to his trust’s parcel through the

Barnes property on numerous occasions in the past, that portion of

the access road was no longer passable. Lichina stated that the

only alternative to accessing the parcel through the Gjovig Trust’s

property would be a bridge from U.S. Highway 24, which, according

to Lichina, would be “a two-million-dollar” construction project. Cf.

LeSatz, 757 P.2d at 1092 (owner of landlocked property failed to

show great necessity for the easement sought where he could obtain

license for construction of a foot or vehicular bridge and where

there was no evidence that the cost of such a construction would be

prohibitive or grossly in excess of the value of the property itself).

And he testified that, in the absence of the easement, his trust’s

20
parcel is useless. See Campbell, 192 P.3d at 472-73 (concluding

that the third element was met in part because the lack of access

rendered the property useless, and that result was contrary to

public policy).

¶ 34 In sum, the trial court erred in its application of the great

necessity requirement by only evaluating it at the time of severance.

It also erred in its findings that alternate access at the time of

severance meant that there was no great necessity for an easement

and that the Cascade Town Company deeded the property with the

intent that the parcel remain landlocked. We therefore reverse the

court’s judgment and remand the case for further proceedings

consistent with this opinion.

B. Trial Court Attorney Fees

¶ 35 On cross-appeal, the Gjovig Trust contends that the trial court

erred by denying its motion for an award of attorney fees under

section 13-17-102, C.R.S. 2024. We disagree.

1. Applicable Law and Standard of Review

¶ 36 Section 13-17-102(2) provides that a court may award

attorney fees against a party “who has brought or defended a civil

action, either in whole or in part, that the court determines lacked

21
substantial justification.” As pertinent here, “lack[s] substantial

justification” means “substantially groundless.” § 13-17-102(9)(a).

“A claim is substantially groundless if the allegations in the

complaint, while sufficient to survive a motion to dismiss for failure

to state a claim, are not supported by any credible evidence at

trial.” Gravina Siding & Windows Co. v. Gravina, 2022 COA 50,

¶ 87 (emphasis added) (quoting City of Aurora v. Colo. State Eng’r,

105 P.3d 595, 618 (Colo. 2005)). A claim is also groundless if no

evidence supports an essential element of that claim, even if there

is evidence supporting other elements. State ex rel. Coffman v.

Robert J. Hopp & Assocs., LLC, 2018 COA 71, ¶ 29. However, a

losing position isn’t necessarily groundless, nor is a claim that fails

to establish a prima facie case if some credible evidence supports

that claim. Id.

¶ 37 A trial court is in the best position to determine whether a

claim lacked substantial justification because that analysis is a

question of fact for the trial court. Argo v. Hemphill, 2022 COA 104,

¶ 51. Therefore, we review a trial court’s denial of a motion for an

award of attorney fees for an abuse of discretion. Front Range Res.,

LLC v. Colo. Ground Water Comm’n, 2018 CO 25, ¶ 15. A court

22
abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or is based on a misapplication or

misunderstanding of the law. See id.

2. The Trial Court Didn’t Abuse Its Discretion
by Denying the Attorney Fee Request

¶ 38 The Gjovig Trust contends that the trial court abused its

discretion by denying the motion for an award of attorney fees

because the Lichina Trust’s claims for a prescriptive easement and

an implied easement of necessity were substantially groundless. As

to the former claim, the Gjovig Trust asserts that the Lichina Trust

provided no evidence that the access road had been used without

interruption for the statutory prescriptive period of eighteen years.

See § 38-41-101(1), C.R.S. 2024. Similarly, the Gjovig Trust argues

that the easement of necessity claim was substantially groundless

because the Lichina Trust presented no evidence that there was a

great necessity for the easement at the time of severance, a material

element of that claim. We discern no error.

a. The Prescriptive Easement Claim
Wasn’t Substantially Groundless

¶ 39 As we note above, the Lichina Trust asserted the prescriptive

easement claim as an alternative theory for relief. In support, it

23
alleged that the access road across the Gjovig Trust’s property had

been used continuously “[f]or a period well in excess of 18 years.”

The Lichina Trust further alleged that “[u]pon information and

belief, the Access Road was used [starting] in the 1960s through

[the trust’s] ownership of the [parcel].” And in the discovery

responses it provided approximately fifteen months later, the

Lichina Trust indicated that the following persons had used the

road to access the parcel:

Tom and Mary Lichina, and their real estate
agent . . . , when looking at the [parcel] prior to
purchase, and then after closing on the
purchase. Upon information and belief, prior
owners (and guests or invitees of those owners)
of the [parcel] including their agents.

¶ 40 The trial court dismissed the prescriptive easement claim after

granting the Gjovig Trust’s uncontested motion for partial summary

judgment.3 Even so, we perceive no error in the trial court’s

determination that the Lichina Trust’s prescriptive easement claim

didn’t lack substantial justification. For starters, it is appropriate

for a party to permit the disposal of a claim after completing

3 The Lichina Trust failed to respond to the motion even though the

trial court granted its request for an extension of time in which to
file a responsive brief.

24
discovery and realizing that the claim can’t prevail. While the better

practice would have been for the Lichina Trust to voluntarily

dismiss its prescriptive easement claim, the fact that the court

dismissed it upon the Gjovig Trust’s uncontested motion for partial

summary judgment doesn’t automatically mean that the claim was

substantially groundless.

¶ 41 Moreover, the record shows that some evidence supporting the

existence of a prescriptive easement did come out at trial. For

example, Lichina testified that he and his wife had used the Gjovig

Trust’s property to access their trust’s parcel both before and after

they purchased it in 2003. He also testified that, while they weren’t

allowed to utilize the road after Gjovig denied them access in 2010

or 2011, it was his understanding that this road had been in use

since the 1940s. Thus, to the extent the Gjovig Trust argues that

the Lichina Trust presented no evidence (whether before or at trial)

in support of its prescriptive easement claim, this testimony cuts

against that argument.

25
b. The Easement of Necessity Claim
Wasn’t Substantially Groundless

¶ 42 Similarly, we disagree with the Gjovig Trust’s argument that

the claim for an implied easement of necessity was substantially

groundless. Again, the Lichina Trust presented evidence that there

was a unity of ownership over the property until 1948, when its

parcel was severed from the common owner; the parcel was

conveyed for residential development; the road across the Gjovig

Trust’s property existed at that time and had been historically used

to access the parcel; and the parcel is useless without the easement

because it can’t be accessed any other way. The mere fact that the

trial court determined that the Lichina Trust still failed to establish

the second and third elements of its implied easement of necessity

claim — a determination that we reverse in this appeal — doesn’t

render the easement of necessity claim groundless. Indeed, the

above record shows that the Lichina Trust presented at least some

evidence in support of that claim. See Robert J. Hopp & Assocs.,

LLC, ¶ 29.

¶ 43 Under these circumstances, then, we can’t say that the trial

court’s decision to deny the Gjovig Trust’s request for an award of

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attorney fees was manifestly arbitrary, unreasonable, or unfair, or

was based on the court’s misapplication of the law. See Front

Range Res., LLC, ¶ 15. We therefore conclude that the trial court

did not abuse its discretion in denying the request.

C. Appellate Attorney Fees

¶ 44 Finally, because we conclude that the Lichina Trust’s claims

weren’t substantially groundless, we also disagree with the Gjovig

Trust’s argument that “[t]his appeal is a mere extension of the

original groundless claims.” Indeed, the Lichina Trust prevailed in

this appeal by successfully challenging the trial court’s judgment.

See Mountain States Adjustment v. Cooke, 2016 COA 80, ¶ 47

(nonprevailing appellate party is not entitled to an award of

appellate attorney fees). We therefore deny the Gjovig Trust’s

request for appellate attorney fees.

III. Disposition

¶ 45 The trial court’s judgment is reversed, and the case is

remanded to the trial court for further proceedings consistent with

this opinion. The attorney fee order is affirmed.

JUDGE HARRIS and JUDGE TOW concur.

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