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Colorado Court of Appeals Opinions
February 28, 2013

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2013 COA 15. No. 10CA0320. People v. Garcia.
County Court—Re-filing Complaint—Jurisdiction—Statement of Good Cause—Crim.P. 5(a)(4)(VII).

Defendant appealed the order of the district court concluding it had jurisdiction to accept his guilty plea. The order was affirmed.

On August 28, 2008, the People filed a complaint against defendant in Alamosa County Court, alleging assault in the second degree. The complaint was dismissed after the prosecution was unable to produce witnesses for a preliminary hearing. On December 12, 2008, the People re-filed the complaint in Alamosa County Court. Defendant waived his right to a preliminary hearing, and on April 6, 2009, he pleaded guilty to felony menacing in Alamosa District Court.

Defendant argued that the prosecution was not permitted to re-file the charges in county court and, alternatively, that failure to include a statement of good cause with the re-filing of felony criminal charges in county court pursuant to Crim.P. 5(a)(4)(VII) created a jurisdictional bar to his prosecution. First, Crim.P. 5(a)(4)(VII) now authorizes the re-filing of charges in county court. Next, the prosecutor’s failure to file a statement of good cause was not a jurisdictional defect but a procedural defect, which defendant waived when he pleaded guilty.

2013 COA 16. No. 10CA1480. People v. Hassen.
Closed Courtroom—Public Trial.

Defendant Omer Hassen appealed his criminal conviction following a jury trial, along with his sentence. The judgment was reversed and the case was remanded for a new trial.

During trial, the prosecution requested that the courtroom be closed during the testimony of two police officers. The prosecution explained that the witnesses were working undercover at the time of trial and expressed concerns that a spectator might recognize them as police officers. Hassen objected, contending the trial court abused its discretion when it closed the courtroom during the testimony of the two officers. However, the trial court granted the prosecution’s request and excluded the public.

Criminal defendants have a right, guaranteed by both the U.S. and Colorado Constitutions, to a public trial. Here, the trial court failed to articulate an overriding interest that would support the total closure of the courtroom, to make findings as to why Hassen’s presence in the courtroom was a risk, to consider less restrictive alternatives to total closure, and to make any findings to support the closure. Therefore, the trial court abused its discretion in ordering the total closure of the courtroom during the testimony of the two undercover police officers.

2013 COA 17. No. 11CA1077. People v. Ridgeway.
Possession of Burglary Tools—Intent—Jury Instruction.

Defendant Lewis Ridgeway appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of burglary tools. The judgment was reversed and the case was remanded for a new trial.

Ridgeway was charged with, among other things, second-degree burglary, theft of less than $500, and possession of burglary tools after burglarizing a check-cashing business. Ridgeway argued that the trial court failed to properly instruct the jury regarding the elements of the crime of possession of burglary tools. To convict a defendant for possession of burglary tools, a jury must find beyond a reasonable doubt both that the defendant possessed burglary tools and that he or she had the intent to use them to commit a burglary. Here, the elemental instruction submitted to the jury on possession of burglary tools omitted the intent element of the crime. Because the instructional error was not harmless beyond a reasonable doubt, the judgment of conviction was reversed and the case was remanded for a new trial.

2013 COA 18. No. 11CA1342. Settle v. Basinger, MD.
Emergency Room Physician’s Vicarious Liability—Negligent Supervision—Captain of the Ship Doctrine—Negligent Credentialing—Impeachment Evidence.

Plaintiffs William P. and Corinna Settle appealed the judgment of the trial court in favor of Janet Basinger, MD, and Rio Grande Citizens Foundation for Health Care, Inc. (Rio Grande Hospital). The judgment was affirmed.

After sustaining injuries from an ATV accident, William Settle was transported by ambulance to the Rio Grande Hospital emergency room, where Dr. Basinger was on duty. Dr. Basinger inserted a chest tube to remove air from Settle’s chest cavity before having him transported to Swedish Medical Center in Denver (Swedish). Swedish arranged for Air Life, an organization independent from the hospitals, to transport him. While Dr. Basinger was placing the chest tube, the Air Life nurses and another physician made two unsuccessful attempts to intubate Settle and then inserted a “Combitube” to stabilize him. At Swedish, lacerations to Settle’s posterior trachea and anterior and posterior esophagus caused by the Combitube were discovered, which later required multiple surgeries to repair.

Plaintiffs contended that the trial court erred when it denied their motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses. Plaintiffs alleged no facts, however, on which the court could have concluded that Dr. Basinger owed them a duty to supervise the Air Life nurses when they attempted the intubation. Additionally, the captain of the ship doctrine only applies to the authority of a surgeon in an operating room. It does not render an emergency room physician such as Dr. Basinger vicariously liable for negligent acts committed in the emergency room by non-hospital employees. Accordingly, the trial court did not err when it (1) denied plaintiffs’ motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses; (2) granted summary judgment in favor of Dr. Basinger on plaintiffs’ claim that Dr. Basinger failed to supervise the medical care that gave rise to Settle's injuries; and (3) granted summary judgment in favor of Rio Grande Hospital on the negligent credentialing claim.

Plaintiffs further contended that the court erred when it limited cross-examination of Dr. Basinger and her expert witness and excluded other impeachment evidence. The trial court’s exclusion of the evidence was not manifestly arbitrary, unreasonable, or unfair, and there was no prejudicial error. Consequently, the court did not abuse its discretion when it granted the pretrial motions to exclude such testimony and evidence.      

Plaintiffs also contended that the court erred when it did not allow them to “inquire into the fact” that another of defendants’ expert witnesses had been found guilty of unprofessional conduct, in violation of the Colorado Medical Practice Act. Defendants’ expert witness was a physician who had been convicted of driving while intoxicated and later was disciplined by the Board of Medical Examiners. However, testimony about the witness’s addiction to alcohol or narcotics was not admissible for any proper purpose in this matter.

Finally, the court did not err when it excluded portions of a witness’s deposition to remove references to insurance, excluded evidence of a letter from plaintiffs’ counsel to the witness saying it was permissible for her to meet with defense counsel, and allowed defense counsel to vouch for the credibility of a defense witness. The judgment was affirmed.

2013 COA 19. No. 11CA1802. People v. Dinkel.
Probation—Sex Offender—Sexual Assault—Child Under 15.

Defendant appealed the district court’s order denying his motion to terminate his probation. The order was affirmed.

In 2002, defendant pleaded guilty to sexual assault on a child under the age of 15 by a person in a position of trust, a class 3 felony. The trial court sentenced him to an indeterminate twenty-year-to-life term of sex offender intensive supervision probation (SOISP). In 2010, the trial court granted defendant’s request to modify his probation from SOISP to “regular Sex Offender Supervision.” In 2011, the trial court denied defendant’s request to terminate his probation in its entirety.

Defendant contended that the trial court had discretion under § 18-1.3-204(4)(a) of the Sex Offender Lifetime Supervision Act (Act) to reduce or increase a term of a sex offender’s probation, and its discretion is not limited by the provisions of §§ 18-1.3-1004(2)(a) and -1008(2) of the Act. Under the plain language of the Act, however, a sex offender who is convicted of a class 3 felony and sentenced to probation must receive a minimum of twenty years of probation. The Act has no provision permitting discharge of the sex offender’s probationary sentence before the twenty-year review. Thus, the district court did not have discretion to terminate defendant’s probation until he completed at least twenty years of the sentence.

2013 COA 20. Nos. 11CA1856 & 11CA1857. Taxpayers for Public Education v. Douglas County School District.
Choice Scholarship Program—Standing—Public School Finance Act of 1994—Colorado Constitution.

In 2011, the Douglas County Board of Education (County Board) adopted the Choice Scholarship Program (CSP). Pursuant to the CSP, parents of eligible elementary school, middle school, and high school students residing in the Douglas County School District (District) may choose to have their children attend certain private schools, including some with religious affiliation. The District would pay parents of participating students “scholarships” covering some of the cost of tuition at those schools, and the parents would then remit the scholarship money to the schools.

Plaintiffs are nonprofit organizations, Douglas County taxpayers, District students, and parents of District students. They filed suit to enjoin implementation of the CSP, claiming that it violates the Public School Finance Act of 1994, CRS §§ 22-54-101 to -135 (Act), and various provisions of the Colorado Constitution.

Plaintiffs claimed that the CSP violated the Act because the District will impermissibly use state money distributed by the Colorado Department of Education to pay for private school tuition at private schools. The Court of Appeals did not reach the merit on this claim, however, because it found that plaintiffs did not have standing to bring a private cause of action seeking enforcement of the Act.

Plaintiffs further contended that the court erred in rejecting their claim alleging a violation of article IX, § 2 of the Colorado Constitution, which requires the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.” Article IX, § 2 plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the Constitution requires. It also is not violated merely because some students’ parents may choose to have their children forego the available opportunity to attend a school within the system the Constitution requires. Therefore, plaintiffs failed to prove beyond a reasonable doubt that the CSP violates the Colorado Constitution.

Plaintiffs also contended that the court erred in rejecting their claim alleging a violation of article IX, § 3 of the Colorado Constitution because the public school fund is used for private schools. There was no record support for this argument. Therefore, the Court assumed that the CSP was funded out of the 95% of total per-pupil revenue that does not come from the public school fund.

Plaintiffs further argued that the CSP violated article IX, § 15 of the Colorado Constitution, and that the district court erred in ruling to the contrary. However, article IX, § 15 does not apply to the CSP because the directors of the boards of education of local school districts have control of instruction in the public schools of their respective districts.

Plaintiffs also argued that the CSP violated article II, § 4; article V, § 34; and article IX, §§ 7 and 8 of the Colorado Constitution. The CSP is neutral toward religion generally and toward religion-affiliated schools specifically. The CSP is intended to benefit students and their parents, and any benefit to the participating schools is incidental. Further, the CSP does not compel anyone to do anything, much less attend religious services. To the extent students would attend a particular private school or religious services at that school, they would do so as a result of parents’ voluntary choices. Therefore, the CSP does not violate the Colorado Constitution.

Finally, plaintiffs argued that the CSP violated article V, § 34 of the Colorado Constitution by providing funds to private schools and religious organizations. The General Assembly appropriates state money for elementary and secondary education to the Colorado Department of Education, which in turn distributes it to local school districts in the form of total per-pupil revenue. At that point, ownership of the funds passes to the local school districts. The District’s expenditure of funds under the CSP, therefore, does not constitute an appropriation by the General Assembly. As a result, the CSP does not violate article V, § 34.

2013 COA 21. No. 11CA1886. In re the Marriage of Rivera.
Dissolution of Marriage—Arbitration Award—CRS §§ 13-22-222(1) and 14-10-128.5(2).

In this dissolution of marriage proceeding, husband appealed from the trial court’s order partially confirming an arbitration award as to property and maintenance provisions and ordering a hearing on the remaining parenting issues. The order was reversed and the case was remanded with directions.

Husband and wife agreed to resolve the terms of their dissolution of marriage through mediation and arbitration. At mediation, they agreed to joint decision-making authority and adopted the parenting schedule recommended by the child and family investigator. The parties agreed the mediator would be designated as an arbitrator to resolve any dispute arising out of the mediated agreement.

The parties then disputed the property distribution provisions in the mediated agreement and proceeded to arbitration. The arbitrator entered a final award, which reaffirmed the parenting time agreement. Wife then filed a motion requesting trial court confirmation of the arbitration award under CRS § 13-22-222(1), and husband objected on grounds not relevant to the appeal. The court held a hearing wherein husband withdrew his objection, and both parties requested that the mediated agreement and arbitration award be made orders of the court.

Following a colloquy with wife, the trial court determined that wife did not believe the mediation agreement was fair and therefore stopped the hearing, declined to confirm the arbitration award, and set a permanent orders hearing. Husband then moved to confirm the arbitration award under CRS § 13-22-222(1). He stressed that because neither party had timely sought to vacate, modify, or correct the award, the court was required to confirm it. Wife agreed, but objected as to the provisions concerning parenting issues. The court entered an order confirming all property and maintenance provisions, but ordered all parenting issues remain set for hearing. Husband appealed.

Husband argued that because he and wife resolved the dissolution through arbitration and wife did not seek to vacate, modify, or correct the arbitration award in a timely manner, the trial court lacked authority to set a permanent orders hearing to resolve parenting issues. The Court of Appeals agreed. CRS § 14-10-128.5(2) provides a specific means by which a party may seek trial court review of an arbitration award. The motion for a hearing must be made no later than thirty-five days after the date of the award. Here, no such timely request was made. Accordingly, the order was reversed and the case was remanded to confirm the award in its entirety.

2013 COA 22. No. 11CA2103. People v. Gravina.
Deferred Judgment and Sentence—Sexual Exploitation of a Minor—CRS § 18-1.3-202.

Defendant appealed the trial court’s judgment revoking his deferred judgment and sentence, entering a judgment of conviction, and sentencing him for the crime of sexual exploitation of a minor. The judgment and sentence were affirmed.

In December 2010, defendant pleaded guilty to sexual exploitation of a child, a class 5 felony, for possessing nude photographs of his 17-year-old girlfriend. Pursuant to the plea agreement, the trial court granted defendant a deferred judgment and sentence for four years. Defendant agreed to complete Sex Offender Intensive Supervision Probation (SOISP) and other conditions, one of which was that he could not have “possession or have any contact with any form of . . . [m]aterial that contains nudity, sexual themes, and sexually explicit or violent images.”

In February 2011, defendant’s probation officer searched defendant’s house. She found a Hooters calendar and a Maxim magazine. She also found photographs of defendant with a naked woman and nine pornographic movies. This resulted in defendant being removed from his treatment program.

After a hearing, the trial court found defendant in violation of his probation and revoked his deferred judgment and sentence, and sentenced him to five years of SOISP. In addition, he was to serve ninety days in jail, with sixty days suspended and credit for one day served.

Defendant contended it was error to commit him to ninety days in jail after he had already been committed to ninety days in jail as a condition of his initial probation, because CRS § 18-1.3-202 allows only an aggregate of ninety days in jail as a condition of probation for any single conviction. The Court of Appeals disagreed. The Court found the plain language of CRS § 18-1.3-202 to allow a trial court to include as a condition of probation a commitment to jail for up to the maximum number of days permitted by statute. The ninety-day limit applies to each specific grant of probation and not to the sentencing for the underlying crime.

Defendant also argued it was error to revoke his deferred judgment because the terms of his probation were unconstitutionally vague as applied to the magazine and calendar, and the prosecution failed to prove that he knowingly possessed the movie and photos. The Court found no error. Defendant’s probation prohibited him from possessing “sexually oriented or sexually stimulating material.” Though neither the calendar nor the magazine was part of the record, the Court presumed the trial court was correct that they were sexually oriented or stimulating within the meaning of the probation condition. As for proving “knowing” possession, the Court found the record supported such a finding.

2013 COA 23. No. 11CA2293. People v. Campos-Corona.
Crim.P. 35(c)—Ineffective Plea Counsel.

Defendant appealed from an order denying his motion for relief pursuant to Crim.P. 35(c). The judgment was affirmed.

Defendant was charged with one count of possession of a schedule II controlled substance with intent to distribute, and one count of conspiracy to distribute a schedule II controlled substance. He pleaded guilty to an added count of distribution of a schedule II controlled substance in exchange for dismissal of the original charges and a more favorable sentencing range. After successfully completing his sentence to probation, he faced deportation proceedings.

Defendant filed a Crim.P. 35(c) motion to seek to withdraw his plea on the ground that plea counsel was ineffective in advising him regarding the immigration consequences of his guilty plea. At the post-conviction hearing, plea counsel testified that he advised defendant that a guilty plea would make renewing his permanent residence status difficult, if not impossible, and he would likely be deported. Plea counsel stated that defendant wanted to plead guilty to try to be sentenced to probation and would deal with the immigration issue later. Plea counsel acknowledged that he had not told defendant that the plea would subject him to a mandatory removal provision from which no discretionary relief could be had.

Defendant testified that plea counsel advised him that he “would [or] could have problems” renewing his permanent resident status. He gave conflicting testimony as to whether he was advised he could be deported as a result of pleading guilty. He testified that if he had been told in absolute terms that he would be deported, he would not have entered a guilty plea. The post-conviction court found plea counsel’s representations were adequate regarding potential deportation.

On appeal, defendant argued it was error to deny his petition for post-conviction relief. The Court of Appeals found that counsel’s performance was deficient, but agreed the petition was properly denied for failure to sufficiently demonstrate prejudice. A criminal defendant is entitled to relief for ineffective assistance of counsel by showing that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel’s errors, the defendant “would not have pleaded guilty and would have insisted on going to trial.”

Here, 8 USC § 1227(a)(2)(B)(i) mandates removal for violation of any law relating to controlled substances other than a single offense involving possession of marijuana for personal use of thirty grams or less. Defendant admitted a significant quantity of cocaine was found in his possession and at his home. He was not advised that pleading guilty would subject him to mandatory, permanent removal. Plea counsel’s performance was not reasonable and the trial court’s finding otherwise was in error.

However, the Court agreed that even if inadequate advice was provided, defendant failed to show he was prejudiced. The Court deferred to the trial court’s findings that his testimony established only that he wanted to avoid prison and therefore it would not have been rational for him to proceed to trial. The order was affirmed.

2013 COA 24. No. 12CA0130. Northglenn Urban Renewal Authority v. Reyes, Adams County Assessor.
Summary Judgment—Tax Increment Financing—Urban Renewal Plan.

In this case involving the financing of an urban renewal plan, plaintiff Northglenn Urban Renewal Authority (NURA) appealed the trial court’s summary judgment in favor of defendants Gil Reyes, in his official capacity as Adams County Assessor (Assessor), and the Board of County Commissioners of the County of Adams (BOCC). The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

In 1992, Northglenn City Council (City Council) approved an urban renewal plan created by NURA for the redevelopment of blighted areas. The plan included tax increment financing (TIF). In 2004, the City Council by resolution substantially amended the urban renewal plan, adding several new tracts of property to the Northglenn Urban Renewal Area. No significant activity occurred on most of this new property from 2005 to 2009. In 2009, the City Council resolved to suspend the TIF for those properties within the renewal area without active urban renewal projects.

In 2009, the assessor calculated the TIF revenue by removing the suspended property from the total assessed value but including the suspended property in the base value. The assessor also concluded that the TIF period for all properties would expire in 2017, twenty-five years after the effective date of the original plan.

NURA disagreed with the method used to calculate the TIF following the TIF suspension. It sought mandamus relief and a declaratory judgment that the assessor improperly calculated the base value of the property in the urban renewal area, and improperly shortened the duration of the applicable TIF period for the additional properties. The trial court denied mandamus relief because the dispute involved the manner in which TIF revenues were calculated, not the assessor’s refusal to act. The Court of Appeals did not address this issue but turned only to the declaratory judgment claims.

The Court agreed with NURA that the assessor erred in the calculation of TIF following the suspension. The parties agreed that the statute does not address the TIF calculation of the renewal area when TIF is suspended for a portion of the property. Likewise, the assessor’s manuals and appraisal procedures have no provisions that address this. The Court therefore tried to interpret the statute in accordance with legislative intent and objectives (commending this issue to the legislature to address it at some future date).

Specifically, the Court agreed that the assessor should have removed the value of the suspended properties from the total assessed value and from the base value, not just from the total assessed value. The assessor’s method impeded the goals of addressing and financing renewal of blighted areas.

NURA then argued that the twenty-five-year period did not increase the TIF provision in the renewal plan for those properties added after the effective date of the plan. The Court disagreed. The Court found that the plain language of CRS § 31-25-107(9)(a)(I) creates a reference date based on the effective date of adoption of a TIF provision. Although the City Council could have altered the dates when it added the new properties, it included them in the original urban renewal area and subjected them to the original plan. Therefore, they were bound by the original twenty-five-year period. The part of the trial court’s summary judgment regarding the assessor’s calculation of TIF was reversed, and the part regarding the twenty-five-year TIF expiration was affirmed.

2013 COA 25. No. 12CA0654. Shelter Mutual Insurance Co. v. Vaughn.
Personal Injury—Intentional Acts Exclusion to Insurance—Issue Preclusion.

At a YMCA basketball game, Steven Vaughn, the father of a player, hit Alvin Miller, a referee, several times and injured him. Miller sued Vaughn for assault and battery. Shelter Mutual Insurance Company (Shelter) hired a lawyer to defend Vaughn under a reservation of rights. Miller amended his complaint to add a negligence claim. The assault and battery claim was dropped before trial. The jury found Vaughn negligent and awarded Miller damages.

Shelter filed a declaratory action, asserting that Vaughn’s intentional actions caused Miller’s injuries and therefore the judgment was not covered by Vaughn’s insurance policy. Vaughn argued that Shelter was precluded from claiming he acted intentionally given the jury verdict of negligence. The trial court disagreed, finding that the issue of whether Vaughn acted intentionally was not adjudicated at trial and Shelter’s interest was not identical to Vaughn’s. The court then found Vaughn’s actions were intentional and thus excluded under the policy. Only the ruling on issue preclusion was challenged on appeal.

Issue preclusion bars relitigation of issues actually litigated in and necessary to the outcome of a prior action. Of the four elements that must be proven, the Court of Appeals found two that were not. The Court found that Shelter was not in privity with Vaughn in the underlying trial. Although Shelter funded Vaughn’s defense, it was not a party to the litigation and its interests were not aligned with Vaughn’s. Vaughn wanted to deny all liability, but Shelter only wanted to prove that if Vaughn were liable, it was for intentional acts that would release it from its duty to indemnify. Shelter’s reservation of rights put Vaughn on notice of their divergent interests. The Court further held that Shelter did not have a full and fair opportunity to assert its own interests in the underlying trial and litigate the issue of whether Vaughn was negligent. Shelter’s interests conflicted with Vaughn’s interest.

In sum, issue preclusion will not bar an insurer from later denying coverage to its insured when the insurer defended the insured under a reservation of rights and the insurer had an interest in establishing a different set of facts than the insured in the underlying litigation. The judgment was affirmed.

2013 COA 26. No. 12CA0967. Vista Ridge Master Homeowners Association, Inc. v. Arcadia Holdings at Vista Ridge, LLC.
Summary Judgment—CRS § 38-33.3-210(4)(b)—Withdrawal and De-annexation of Lots From a Master Association—Interest on Attorney Fees.

Defendant Arcadia Holdings at Vista Ridge, LLC (Arcadia) appealed the summary judgment in favor of plaintiff Vista Ridge Master Homeowners Association, Inc. (Vista Ridge).The judgment was affirmed and the case was remanded with directions.

Vista Ridge was established by the recording of the Master Declaration of Covenants, Conditions, and Restrictions for Vista Ridge (Declaration). Article V of the Declaration reserved the right to withdraw or de-annex any portion of the community in accordance with the Colorado Common Interest Ownership Act (CCIOA). The Declaration limited this right to the extent that "no portion of the Property may be withdrawn or deannexed after a Lot or Unit in that portion of the Property has been conveyed to an Owner other than a Declarant or a Builder.”

Arcadia’s predecessor in interest recorded Vista Ridge Filing No. 9, which platted ninety-four single family residential lots. They were annexed to Vista Ridge by the recording of a Declaration of Annexation and Amendment to the Declaration (Declaration of Annexation). At the time of this action, Arcadia still owned seventy of these lots. Arcadia recorded an Amendment to the Declaration of Covenants, Conditions, and Restrictions for Vista Ridge in which it purported to withdraw and de-annex its remaining seventy lots. Vista Ridge challenged the de-annexation in a complaint for declaratory judgment and damages. The district court granted summary judgment in favor of Vista Ridge and entered a monetary judgment for past-due monthly assessments on the seventy lots plus attorney fees, all accruing interest at an annual rate of 19%.

Arcadia argued it was error to find the de-annexation invalid, and the Court of Appeals disagreed. The Court found CCIOA determinative on this issue. The applicable subsection is 210(4)(b), which states, “[i]f any portion of the real estate is subject to withdrawal, it may not be withdrawn after a unit in that portion has been conveyed to a purchaser.” The parties disagreed as to the meaning of “portion.” Vista Ridge contended it meant the ninety-four lots in Filing No. 9, and Arcadia contended the meaning was arbitrary and the statute ambiguous. The Court found it clear and unambiguous. Filing No. 9 was clearly a separate portion of Vista Ridge. Therefore, following the sale of one of the ninety-four lots constituting Filing No. 9, that portion may not be withdrawn. The relevant portion was the ninety-four lots.

Arcadia also argued it was error to order a monetary judgment that accrued interest on the attorney fees award at a rate of 18% percent. The Court disagreed. Section 7.6 of the Declaration stated that “[a]ny assessment not paid [is] subject to fees authorized by Section 7.2, including . . . interest from the due date at the rate of eighteen percent (18%) per annum.” Attorney fees are referred to in the Declaration as "assessments" three times; therefore, they are considered a type of assessment.

The judgment was affirmed. In addition, pursuant to § 38-33.3-123(1)(c) and the Declaration, Vista Ridge was entitled to recover its appellate attorney fees and costs.

Colorado Court of Appeals Opinions