Tyra Summit Condominiums II Association, Inc. v. Clancy

COLORADO COURT OF APPEALS 2017COA73

Court of Appeals No. 16CA1381
Summit County District Court No. 16CV30071
Honorable Edward J. Casias, Judge

Tyra Summit Condominiums II Association, Inc., a Colorado nonprofit
corporation,

Petitioner-Appellee,

v.

Katherine Jean Clancy and Heather Clancy,

Appellants.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE GRAHAM
Taubman and Navarro, JJ., concur

Announced May 18, 2017

Winzenburg, Leff, Purvis & Payne, LLP, Wendy E. Weigler, Littleton, Colorado,
for Petitioner-Appellee

The Klug Law Firm, LLC, Noah Klug, Breckenridge, Colorado, for Appellants
¶1 This case requires us to address certain provisions of the

Colorado Common Interest Ownership Act (the Act), sections

38-33.3-101 to -402, C.R.S. 2016. The Act sets forth a “uniform

framework for the creation and operation of common interest

communities,” such as condominiums and cooperatives.

§ 38-33.3-102(1)(a), C.R.S. 2016. Among other things, the Act

creates a judicial procedure for amending a declaration — the

recorded instrument that creates a common interest community

and sets forth the owners’ rights. §§ 38-33.3-103(1), -205, -217(7),

C.R.S. 2016.

¶2 Two condominium owners argue that the district court should

not have granted a petition by their condominium association to

amend its declaration because the association failed to satisfy all of

the statutory requirements. We agree with the condominium

owners that the association failed to comply with all statutory

requirements because it did not give owners sufficient notice of an

association meeting, and we therefore reverse.

I. Background

¶3 Katherine Jean Clancy and Heather Clancy (the Owners) own

a condominium unit at the Tyra Summit Condominiums II in

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Breckenridge, Colorado (Tyra II). Tyra II is administered by the Tyra

Summit Condominiums II Association, Inc. (the Association). Each

person or entity who owns a condominium unit at Tyra II is a

member of the Association, and the Association is run by a Board of

Managers (the Board).

¶4 The Association was established by a declaration recorded in

1983 and is governed by that declaration and various amendments

recorded thereafter (collectively, the Declaration).1 In 2016, the

Association sought judicial approval of its attempt to amend the

Declaration (the Amendment), which effectively rewrote the 1983

Declaration “[b]ecause the original document [was] so outdated, the

Board felt it was necessary to start over from the beginning.”

¶5 The Owners objected to the Amendment, arguing that the

Association failed to meet several statutory requirements and that

the Amendment improperly changed their allocated interests. After

a hearing, at which the parties offered documentary evidence and

1Although the Act generally applies only to common interest
communities created after its adoption in 1992 (§ 38-33.3-115,
C.R.S. 2016), certain provisions apply to communities created
before the Act was adopted (§ 38-33.3-117, C.R.S. 2016), including
provisions relevant to this case: sections 38-33.3-217(7) and 38-
33.3-308(1), C.R.S. 2016. § 38-33.3-117(1)(h), (1.5)(i).

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oral argument, but no testimony, the district court found that the

Association had met all the statutory requirements and approved

the Amendment in an oral ruling; the court later signed a brief

written order to the same effect.

¶6 The Owners appeal the order, arguing that (1) the judicial

amendment procedure is unconstitutional both on its face and as

applied; (2) the Association failed to meet several statutory

requirements; and (3) the Amendment improperly changes their

allocated interests. We do not address the Owners’ first argument

because it is not preserved, but we agree with the Owners that the

Association failed to meet all statutory requirements because it

failed to give proper notice of the association meeting at which the

Amendment was discussed. We therefore reverse the order

approving the Amendment. In light of our disposition, it is not

necessary to reach the Owners’ remaining contentions.

II. We Do Not Address the Owners’ Unpreserved
Constitutionality Argument

¶7 The Owners first argue that section 38-33.3-217(7) is

unconstitutional because it impairs a contract in violation of article

II, section 11 of the Colorado Constitution. We do not address this

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argument because it is raised for the first time on appeal. See

McGihon v. Cave, 2016 COA 78, ¶ 16 (“[I]n civil cases . . . ‘[w]e do

not consider constitutional issues raised for the first time on

appeal.’” (quoting City & Cty. of Broomfield v. Farmers Reservoir &

Irrigation Co., 239 P.3d 1270, 1276 (Colo. 2010))).

¶8 To the extent the Owners argue that Roberts v. American

Family Mutual Insurance Co., 144 P.3d 546 (Colo. 2006), requires us

to do so, we disagree. Whether we address unpreserved

constitutional challenges is always a matter of discretion. See

McGihon, ¶ 16 (“[W]e may, as a matter of discretion, review

unpreserved challenges to a statute’s constitutionality where doing

so would clearly further judicial economy.”) (emphasis added). And

we decline to exercise our discretion in favor of review here because

this case can be decided on a nonconstitutional basis.

III. The Association Did Not Satisfy the Statutory
Requirements for Judicially Amending the
Declaration Because It Did Not Give Sufficient
Notice of the Association Meeting

¶9 The Owners also assert that the district court erred in

approving the Amendment because the Association failed to meet

several statutory prerequisites. We agree that the Association failed

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to provide sufficient notice of the meeting at which the Amendment

was discussed, reverse on that basis, and decline to address the

Owners’ remaining arguments.

A. Standard of Review

¶ 10 Although we find no authority articulating the standard of

review for a decision granting or denying a petition to amend a

declaration under section 38-33.3-217(7), we conclude that such a

decision presents mixed questions of law and fact, and we therefore

review the trial court’s interpretation of the statute and declaration

de novo, but we review the trial court’s factual findings for clear

error. See Sheridan Redevelopment Agency v. Knightsbridge Land

Co., 166 P.3d 259, 262 (Colo. App. 2007).

¶ 11 This case is analogous to Sheridan, where a division of this

court considered what standard of review was appropriate for a trial

court’s determination as to whether a redevelopment agency

complied with a statute and an urban renewal plan. Id. The

division concluded that the decision presented “mixed questions of

law and fact because we must first consider what the statute and

the redevelopment plan require, a legal question, and we must then

consider whether petitioner complied with the statute and the

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redevelopment plan, a factual question.” Id. Thus, the division

afforded “traditional deference to the trial court’s extensive findings

regarding petitioner’s actions, while interpreting the statute and the

plan independent of the trial court.” Id. (citation omitted).

¶ 12 Similarly, here, the decision to approve the Association’s

petition to amend the Declaration involves interpreting provisions of

the Act to determine what is legally required to amend the

Declaration, and then making factual findings regarding the actions

the Association took to get the Amendment approved. Thus, we

apply the same standard, interpreting the Act de novo but deferring

to the district court’s factual findings unless they are clearly

erroneous.

¶ 13 When interpreting a statute, our goal is to give effect to the

General Assembly’s intent. McGihon, ¶ 6. “[I]f the language is clear

and the intent of the General Assembly may be discerned with

certainty, we need not resort to other rules of statutory

interpretation,” Sheridan, 166 P.3d at 262 (quoting W. Fire Truck,

Inc. v. Emergency One, Inc., 134 P.3d 570, 573 (Colo. App. 2006)),

and we “apply the language as written,” McGihon, ¶ 6.

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¶ 14 When reviewing factual findings, we defer to the district

court’s findings so long as they are supported by the record.

Sheridan, 166 P.3d at 262. However, where findings of fact are

based solely on uncontested documentary evidence, “an appellate

court is as competent as the trial court to review the sufficiency of

the evidence and apply the law thereto.” Colo. River Water

Conservation Dist. v. Mun. Subdistrict, 198 Colo. 352, 355, 610 P.2d

81, 83 (1979).

¶ 15 Under the Act, a court may grant a petition to amend a

declaration when, among other things, “it finds that . . . [t]he

association has complied with all requirements of this subsection

(7).” § 38-33.3-217(7)(e)(I). One requirement of subsection (7) is

that “[t]he association has discussed the proposed amendment

during at least one meeting of the association.”

§ 38-33.3-217(7)(a)(II). The Act further provides the following:

Not less than ten nor more than fifty days in
advance of any meeting of the unit owners, the
secretary or other officer specified in the
bylaws shall cause notice to be hand delivered
or sent prepaid by United States mail to the
mailing address of each unit or to any other
mailing address designated in writing by the
unit owner. . . . The notice shall state the time
and place of the meeting and the items on the

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agenda, including the general nature of any
proposed amendment to the declaration or
bylaws . . . .

§ 38-33.3-308(1), C.R.S. 2016 (emphasis added).

B. Analysis

¶ 16 We conclude that it was error to approve the Association’s

petition to amend the Declaration because the record does not

support the district court’s finding that all the requirements of

section 38-33.3-217(7) were met. Specifically, the documentary

evidence shows that the Association did not provide adequate notice

to owners of the meeting where the proposed amendment would be

(or was, according to the Association) discussed. See § 38-33.3-

308(1). Thus, the Association did not meet the requirement that it

discussed the proposed amendment at an association meeting. See

§ 38-33.3-217(7)(a)(II).

¶ 17 The parties agree that the meeting at which the Amendment

was allegedly discussed occurred on August 1, 2015.2 The record

includes two documents that might be deemed notice of the

2The Owners argue that the Amendment was not actually
discussed at that meeting, but they do not dispute the date of the
meeting.

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meeting. The first is dated only “June,” and it contains the subject

line: “Annual Homeowners meeting for 2015.” The document

advises Tyra II owners that the 2015 annual meeting would take

place on August 1, 2015, at 9 a.m. and provides the following

information regarding the Amendment:

Rewriting of our Declarations:

[We] have been working on a Declarations
rewrite and have agreed on a final draft which
is currently at our Attorney’s office to make the
final adjustments. When our Attorney makes
those changes we will be sending an entire
packet via regular mail to each homeowner
with a form for approval. It is very important
for each owner to review the new Declarations,
indicate their approval and mail the approval
notice in the supplied self-address envelop
[sic]. It takes 67% of homeowners to amend
and implement the new Declarations.

¶ 18 The second document is dated July 28, 2015, and contains

the subject line: “Amendments to the Tyra Summit Condominiums

II Association, Inc. Declaration.” This letter encloses a copy of the

Amendment, a consent form, and a summary of the proposed

changes; advises that sixty-seven percent of owners must agree to

the Amendment; and summarizes “[s]ome of the most significant

revisions.”

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¶ 19 Neither of these notices satisfies section 38-33.3-308(1). The

first notice did not include “the general nature of any proposed

amendment to the declaration.” § 38-33.3-308(1). Stating that the

Board is in the process of finalizing a new declaration and

indicating that information would be provided in the future does not

provide owners with notice of the “general nature” of the proposed

changes. It merely notifies them that changes will be proposed.

Thus, we conclude that the first notice did not satisfy the

requirements of section 38-33.3-308(1).

¶ 20 The second notice also failed to satisfy section 38-33.3-308(1)

because it was not provided at least ten days before the meeting at

which the proposed Amendment was to be discussed. Assuming

the letter was actually sent on July 28,3 that is only three days in

advance of the August 1 meeting, not more than ten as required.

3 The Owners argue that the letter was not sent on July 28 based in
part on a notation in the August 1 meeting minutes that “packets of
information are ready to be mailed to each Unit homeowner. If
homeowners choose they may pick up packets today.” The district
court did not appear to resolve this dispute, concluding only that,
pursuant to section 38-33.3-217(7)(a)(I), at least two notices had
been sent to owners. In its oral ruling, the court stated, “I think
probably September and December were the two that would
indicate more of a mailing. I think August is sort of standing on the

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¶ 21 Because there was no valid notice of the association meeting,

the record does not support the finding that the Association

satisfied all requirements of subsection (7) — the Amendment was

not discussed “during at least one meeting of the association.”

§ 38-33.3-217(7)(a)(II). We therefore reverse the order approving the

Amendment.

IV. Remaining Contentions

¶ 22 Because we reverse on the basis of the insufficient meeting

notice, we do not address the Owners’ remaining arguments that

the Association failed to satisfy other requirements of the Act’s

judicial amendment procedure or that the Amendment

impermissibly changed the owners’ allocated interests.

V. Attorney Fee Requests

¶ 23 Each party requested attorney fees. As the prevailing party on

appeal, the Owners are entitled to their reasonable attorney fees

and costs. See § 38-33.3-123(1)(c), C.R.S. 2016 (“In any civil action

to enforce or defend the provisions of this article . . . , the court

premise that they were sent out July 28th, which owners may not
have received. But they weren’t changing or petitioning at that
time.”

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shall award reasonable attorney fees, costs, and costs of collection

to the prevailing party.”) (emphasis added). We therefore remand

for a determination of the Owners’ reasonable attorney fees and

costs. See C.A.R. 39.1.

VI. Conclusion

¶ 24 The order is reversed, and the case is remanded for

proceedings consistent with this opinion.

JUDGE TAUBMAN and JUDGE NAVARRO concur.

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