Summaries of Published Opinions, 1021 COBJ, Vol. 50, No. 9 Pg. 80

PositionVol. 50, 9 [Page 80]

50 Colo.Law. 80

Summaries of Published Opinions

No. Vol. 50, No. 9 [Page 80]

Colorado Lawyer

October, 2021

July 1, 2021


2021 COA87. No. l9CA2O76. Accetta v. Brooks Towers Residences Condominium Ass'n Inc. Common Interest Communities—Colorado Common Interest Ownership Act—Amended Declaration.

In 1979, Magna Associates recorded a declaration and map submitting the high-rise Brooks Towers Condominiums to condominium ownership under the Condominium Ownership Act (COA). In 1995, before selling the units, the Magna Associates Liquidating Trust, acting as the declarant, executed and recorded an Amended and Restated Declaration referencing the Colorado Common Interest Ownership Act (CCIOA) and an amended map. The amended declaration stated that it superseded the 1979 declaration, changed the community's name to Brooks Tower Residences, and designated the Brooks Tower Residences Condominium Association, Inc. (Association) to manage the building.

Plaintiffs purchased a Brooks Tower Residences unit in 2005. The special warranty deed that conveyed their unit states that the unit is subject to the 1995 declaration. Plaintiffs paid dues associated with their respective property ownership interest in the common elements. They filed this case in 2017 seeking a declaration that the 1995 declaration's provisions for allocation of common expenses are invalid under the CCIOA and raising various common law claims. The trial court granted defendant's motion for summary judgment, finding that plaintiffs were on notice that they were subject to the 1995 declaration, and the community wasn't subject to the entirety of CCIOA or the specific CCIOA provisions at issue.

On appeal, plaintiffs contended that the trial court erred by concluding that Brooks Tower Residences isn't governed by CCIOA. CCIOA automatically applies in its entirety to common interest communities created after CCIOA's effective date of July 1,1992. Preexisting communities are automatically subject to certain CCIOA provisions. Associations for preexisting communities may elect to be governed by CCIOA in its entirety; however, this may only be accomplished if certain association officers execute and record a statement of election setting forth the name of the common interest community and association, the fact that the association has elected to accept CCIOA's provisions, and information concerning the association's compliance with one of the two methods for electing into CCIOA. Here, Brooks Towers is a preexisting community that falls outside the scope of much of CCIOA. Irrespective of the 1995 declaration's repeated references to CCIOA, the community did not elect treatment under CCIOA as contemplated by CRS § 38-33.3-118. Further, the declaration shows no intent to incorporate the requirements of CRS § 38-33.3-205, or through it CRS § 38-33.3-207, which do not automatically apply to preexisting communities.

Plaintiffs also argued that the trial court erred by entering summary judgment in defendants' favor on their remaining claims for breach of fiduciary duty, conversion, unjust enrichment, and negligence. Plaintiffs conceded that if their CCIOA declaratory judgment fails so does their unjust enrichment claim. Therefore, the Court of Appeals considered only the remaining common law claims, which are based on the imposition of excessive fees against plaintiffs' unit and failure to disclose the relative amount of the fees as compared to other units. However, plaintiffs failed to articulate a legal basis for concluding that the fees were excessive or the Association was obligated to ignore the allocations in the 1995 declaration in assessing fees. Further, the recorded declaration sets out the alio cations for each unit, so plaintiffs were on notice of the fee allocations. Accordingly, the trial court properly entered summary judgment.

The judgment was affirmed and the case was remanded to the trial court to determine the amount of defendants' reasonable appellate attorney fees and award such fees to defendants as the prevailing party.

2021 COA 88. No. 20CA0195. People in the Interest of J.M.M.

Juvenile Delinquency—Sexual Assault on a Child—Sex Offender Registration— Petition for Removal from Registry.

J.M.M. pleaded guilty to sexual assault on a child (pattern) for sexual offenses he committed when he was 11 years old. He submitted a joint motion with the prosecution for a two-year deferred sentence subject to specified terms and conditions. J.M.M. did not satisfy the terms and conditions of the deferred sentence, and the People filed a motion to revoke his deferred sentence. The court revoked the deferred sentence, sentenced J.M.M. to 24 months of probation, and ordered him to complete sex offender treatment J.M.M. violated the probation conditions several times and was ultimately sentenced to the custody of the Department of Youth Corrections for two years and ordered to successfully complete sex offender treatment. J.M.M. satisfied the terms and conditions of this final sentence, and he was paroled in 2005. In 2019, J.M.M. filed a petition to discontinue sex offender registration pursuant to CRS § 16-22-113(1)(e), which the court granted.

On appeal, the People argued that because J.M.M. failed to complete the terms of his original deferred judgment and had his probation revoked multiple times, the district court erred by applying CRS § 16-22-113(l)(e) and granting J.M.M.'s petition to deregister as a sex offender. A juvenile offender is eligible to seek to deregister as a sex offender even if the offender failed to satisfy the terms and conditions of earlier sentences or dispositions, so long as the offender successfully completed his or her subsequently imposed sentence or disposition. Because J.M.M. successfully completed a juvenile sentence or disposition and satisfied the other requirements of CRS § 16-22-1 l3(l)(e), the district court did not err by granting J.M.M.'s petition to discontinue sex offender registration. The order was affirmed.

2021 COA 89. No. 20CA0720. Barnes v. State Farm Mutual Automobile Insurance Co.

Declaratory Judgment—Civil Procedure—CRCP 12(b)(5), (f), and (g).

State Farm Mutual Automobile Insurance Co. (State Farm) issued Barnes automobile liability insurance policies for a Honda and a Geo. Barnes signed an uninsured and under-insured motorist (UM) coverage rejection form for the Geo policy. Both policies were in effect when Barnes sustained serious injuries in a car accident caused by another driver. Her damages exceeded the amount she received from the at-fault driver, and she sought the $100,000 limit of UM coverage under the Honda policy and $70,000 of UM coverage under the Geo policy. State Farm paid Barnes $100,000 under the Honda policy because she had rejected UM coverage on the Geo policy.

Barnes filed suit seeking a declaration that the UM rejection form was invalid or unenforceable. State Farm filed a CRCP 12(f) motion to strike certain paragraphs of the complaint or to require Barnes to state facts to support the statements in those paragraphs. The district court denied the motion. State Farm then filed a Rule 12(b) (5) motion to dismiss for failure to state a claim upon which relief can be granted, which the court granted.

On appeal, Barnes argued that the district court erred by allowing State Farm to file the Rule 12(b)(5) motion after it had already filed a separate Rule 12(f) motion to strike because Rule 12(g) requires the motions to be joined. However, even if a party made an earlier Rule 12 motion, section (g) does not preclude it from making a subsequent motion for judgment on the pleadings asserting the defense of failure to state a claim. State Farm was therefore not precluded from its Rule 12(b)(5) motion by virtue of the earlier motion to strike. Further, though Rule 12(c) permits a motion for judgment on the pleadings only after the pleadings are closed and State Farm filed its Rule 12(b)(5) motion before it filed its answer, State Farm filed its answer before Barnes responded to its motion. This effectively cured any procedural defect caused by the timing of the motion relative to the answer. Therefore, any technical error by the district court in considering State Farm's successive motion to dismiss was harmless.

Barnes also argued that the district court erred by dismissing her complaint, claiming that State Farm engaged in fraudulent behavior because it had an affirmative duty to disclose that policies would not be stacked if UM coverage was rejected on one of her vehicles. Here, the UM rejection form accurately stated the law regarding how UM coverage applies, and the stacking information that Barnes claimed should have been disclosed is unrelated to the subject covered by the UM rejection form. Accordingly, Barnes failed to state a plausible claim for relief, and the district court properly dismissed her complaint.

The judgment was affirmed.

2021 COA 90. No. 21CA0079. Winston v. Polis.

Constitutional Law—Separation of Powers— Subject Matter Jurisdiction.

Plaintiffs are or were confined in Colorado Department of Corrections (CDOC) facilities. Plaintiffs sued the governor and the CDOC executive director seeking declaratory relief and an injunction requiring them to, among other things, implement various health and safety measures and reduce the population in CDOC custody. Plaintiffs reached an agreement with CDOC to alleviate some alleged risks and then amended their complaint to seek declaratory, injunctive, and mandamus relief against the governor. The trial court granted the governor's motion to dismiss.

On appeal, plaintiffs argued that the district court erred by concluding that the governor is not a proper defendant to their claim. The...

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