2017 COA 73
Colo. Ct. App.2017Background
- Tyra Summit Condominiums II Association (Association) prepared a comprehensive rewrite of its 1983 Declaration (the Amendment) and sought judicial approval under Colorado Common Interest Ownership Act (the Act) § 38-33.3-217(7).
- Owners Katherine Jean Clancy and Heather Clancy (Owners) objected, arguing the Association failed to satisfy statutory prerequisites for judicial amendment and that the Amendment altered their allocated interests.
- The district court held the Association met statutory requirements and approved the Amendment after a hearing based on documentary evidence and oral argument (no testimony).
- On appeal, the Owners argued (1) the judicial amendment procedure is unconstitutional (unpreserved), (2) statutory requirements were not met (including notice), and (3) the Amendment improperly changed allocated interests.
- The Court of Appeals declined to address the unpreserved constitutional claim and reversed because the Association failed to provide statutorily adequate notice of the association meeting discussing the Amendment (violating § 38-33.3-308(1)), so the Amendment was not validly discussed at a meeting as required by § 38-33.3-217(7)(a)(II).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Association complied with statutory prerequisites to amend the Declaration under § 38-33.3-217(7) | Owners: Association failed to satisfy statutory requirements, including proper notice and preservation of allocated interests | Association: It satisfied the statutory requirements; notices were sent and Amendment was discussed at the August 1 meeting | Reversed: Association did not satisfy requirements because meeting notice was inadequate under § 38-33.3-308(1) |
| Whether Association gave adequate notice of the meeting under § 38-33.3-308(1) | Owners: Notices did not state the general nature of the proposed amendment or meet the 10-day minimum timing requirement | Association: Provided two notices (June and July) and packets; thus compliance with notice requirement | Held: June notice lacked the required description; July 28 letter (if sent) was only 3 days before meeting, so insufficient timing — notice requirement unmet |
| Whether the court should reach Owners’ constitutional impairment-of-contract challenge to § 38-33.3-217(7) | Owners: Statute impairs contract rights under CO Const. art. II, § 11 | Association: Constitutional challenge was not preserved below | Held: Not addressed — issue unpreserved and appellate court declines to exercise discretion to review |
| Entitlement to attorney fees on appeal | Owners: As prevailing party under § 38-33.3-123(1)(c), Owners seek fees | Association: Opposed | Held: Owners entitled to reasonable attorney fees and costs; remanded to determine amount |
Key Cases Cited
- City & Cty. of Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d 1270 (2010) (unpreserved constitutional issues generally not considered on appeal)
- Roberts v. American Family Mutual Insurance Co., 144 P.3d 546 (2006) (discretionary review of unpreserved constitutional challenges may be appropriate in limited circumstances)
- Sheridan Redevelopment Agency v. Knightsbridge Land Co., 166 P.3d 259 (Colo. App. 2007) (mixed question of law and fact standard: statutory interpretation de novo and factual findings for clear error)
- Colorado River Water Conservation Dist. v. Mun. Subdistrict, 610 P.2d 81 (1979) (when findings rest solely on uncontested documentary evidence, appellate court may review sufficiency of evidence and apply law)