Miller v. Curry
| Decision Date | 08 January 2009 |
| Docket Number | No. 07CA2404.,07CA2404. |
| Citation | 203 P.3d 626 |
| Parties | Dwight J. MILLER and Deborah D. Miller, Plaintiffs-Appellants, v. Roger L. CURRY, Diane M. Curry, Randal Construction, Inc., Joseph R. Rogers, Keith F. Jones, Anna M. Jones, Richard L. Perry, Rae Ann Jackson, John C. Jackson, Peter A. Blatchley, Eva V. Blatchley, and Jeffrey Hayworth, Defendants-Appellants, and Allen D. Miller, Beverley B. Miller, Lowell Pierce, Forest View Estates Neighborhood Association, Inc., Forest View Company, Architectural Control Committee for Forest View Estates Neighborhood Association, Inc., Dan Cuvala, Chris Amenson, Doug Bandle, Leslie Pierce, Steve Fogler, Phoebe Fogler, David Buskirk, Ellen Buskirk, Kevin Martin, Christine Martin, Randy Kunkel, Leslie Hennessey, John Caffo, Margaret Caffo, Fiserv Iss & Co., Trustee FBO Raymond E. Giltner, Hugh T. Dipretore, Stephanie R. Dipretore, Donald O. Leffingwell, Joan W. Leffingwell, Keith W. Mattea, Melissa Mattea, Richard Peterson, Tina Peterson, Cuvala Construction, Inc., Sid J. Reyna, Liliana I. Reyna, David W. Ziegler, Janet L. Ziegler, and the State of Colorado Board of Land Commissioners, Defendants-Appellees. |
| Court | Colorado Court of Appeals |
Ranson & Kane, P.C., Richard P. Ranson, Jason P. Kane, Colorado Springs, Colorado, for Plaintiffs-Appellants and Defendants-Appellants.
Hanes & Schutz, LLC, Patrick A. Hrbacek, Timothy J. Schutz, Colorado Springs, Colorado, for Defendants-Appellees Allen D. Miller, Beverley B. Miller, Lowell Pierce, Forest View Estates Neighborhood Association, Inc., Forest View Company, Architectural Control Committee for Forest View Estates Neighborhood Association, Inc., Dan Cuvala, Chris Amenson, Doug Bandle, Leslie Pierce, Steve Fogler, Phoebe Fogler, David Buskirk, Ellen Buskirk, Kevin Martin, Christine Martin, Randy Kunkel, Leslie Hennessey, John Caffo, Margaret Caffo, Fiserv Iss & Co., Trustee FBO Raymond E. Giltner, Hugh T. Dipretore, Stephanie R. Dipretore, Donald O. Leffingwell, Joan W. Leffingwell, Keith W. Mattea, Melissa Mattea, Richard Peterson, Tina Peterson, Cuvala Construction, Inc., Sid J. Reyna, Liliana I. Reyna, David W. Ziegler, Janet L. Ziegler.
John W. Suthers, Attorney General, David E. Hamrick, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee State of Colorado Board of Land Commissioners.
Opinion by Judge ROMÁN.
In this dispute involving a developer's adherence to the Colorado Common Interest Ownership Act, §§ 38-33.3-101 to -319, C.R.S.2008 (CCIOA), Dwight J. Miller, Deborah D. Miller, Roger L. Curry, and others (collectively, appellants) appeal the trial court's summary judgment in favor of Allen D. Miller and others (collectively, appellees). Appellants also appeal the trial court's order awarding attorney fees to appellees. We reverse and remand.
On October 10, 2001, a Colorado water court issued a decree defining certain water rights associated with a 160-acre tract (the property) owned by Forest View Company (FVC). The decree stated that FVC "intends to develop such land by partitioning the property into 54 honesties."
On February 21, 2002, the Board of County Commissioners of El Paso County (the Commissioners) approved restrictive covenants and a plat depicting 14 units on the property. The covenants (filing 3) and plat were recorded on May 24, 2002, and re-recorded on June 14, 2002 to correct a typographical error.
A plat entitled "Forest View Estates IV" (plat 4) was approved by the Commissioners on October 18, 2004. Plat 4 depicts 38 additional lots and 2 tracts located on the property and was recorded on January 10, 2005.
Dwight J. Miller and Deborah D. Miller purchased a lot located within filing 3 on August 31, 2005. According to the Millers' complaint, they submitted site plans that were rejected by Forest View Estates Neighborhood Association (HOA).
On April 10, 2007, the Millers initiated this lawsuit alleging that FVC and the HOA were "attempting to wrongfully prohibit [the Millers] from building the home [for which they] previously submitted plans." The Millers sought a declaration that FVA violated certain provisions of the CCIOA.
The Millers filed a motion to amend the complaint to "specifically name and properly align all owners in filing 3." The trial court ordered that while joinder of all property owners in filing 3 was necessary, "neither the Court, nor [the Millers] shall presume the `side' with which these individuals may wish to align, if any." Therefore, the trial court ordered that the additional homeowners be served as defendants and stated that it would "consider realigning them as Plaintiffs at their request." Roger L. Curry, Diane M. Curry, Randal Construction, Inc., Joseph R. Rogers, Keith F. Jones, Anna M. Jones, Richard L. Perry, Rae Ann Jackson, John C. Jackson, Peter A. Blatchley, Eva V. Blatchley, and Jeffrey Hayworth elected to be aligned as plaintiffs. However, the trial court did not issue an order realigning them. Thus, although they remain listed as defendants on all pleadings, these homeowners actually align with the Millers for purposes of this appeal.
Both parties moved for summary judgment. Appellants' motion claimed that (1) FVA failed to reserve future development rights in the filing 3 covenants, and (2) even if such development rights were properly reserved, FVC never amended the covenants to include plat 4. Appellants requested a declaration that plat 4 is not a part of the HOA, and that FVC must relinquish control over the HOA pursuant to the CCIOA.
The trial court granted summary judgment in favor of appellees, concluding that "the `declaration' in this case includes the covenants, the water decree, the bylaws and filed plats for [filing 3] and [plat 4], all of which were duly recorded and incorporated by reference." The court also found:
There is no doubt to the Court, and no doubt to a purchaser of any lot in [filing 3], and later, [plat 4], that an integrated and phased development plan was in existence, with specific boundaries and a defined time period of existence. As such, the Court finds that [plat 4] was at all times expressly included in the Declaration as defined by the statute. Accordingly, there were no future development rights to reserve nor was there a requirement to amend a reserved development right under Section 38-33.3-205(1)(h) of CCIOA.
On appeal, appellants contend the trial court erred in determining that plat 4 was at all times part of the original declaration. Instead, appellants argue that the "subsequent filings" language in filing 3 (which ultimately became the lots defined in plat 4) constitute development rights not properly reserved. We agree that the "subsequent filings" language referenced lots that were not yet created, and therefore, that the language described development rights. Under the CCIOA, development rights must be properly reserved by affixing a time limit within which the rights must be exercised. Because filing 3—the document that created the development rights—did not include the statutorily required time limit, we conclude FVA failed to properly reserve the development rights.
Summary judgment is appropriate when the pleadings and supporting documentation demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Martini v. Smith, 42 P.3d 629, 632 (Colo.2002). Appellate review of a summary judgment is de novo. Martini, 42 P.3d at 632.
When interpreting a statute, our primary task is to give effect to the intent of the legislature and adopt the statutory construction that best effectuates the purposes of the legislative scheme, looking first to the plain language of the statute. Ceja v. Lemire, 154 P.3d 1064, 1066 (Colo.2007); Bob Blake Builders, Inc. v. Gramling, 18 P.3d 859, 862 (Colo.App.2001). Words and phrases are to be construed according to their generally accepted meaning, Kruse v. Town of Castle Rock, 192 P.3d 591, 597 (Colo.App.2008), and "[w]hen the statutory language is clear and unambiguous, we interpret the statute as written because the General Assembly is presumed to have meant what it plainly said." Silverview at Overlook, LLC v. Overlook at Mt. Crested Butte Ltd., 97 P.3d 252, 255 (Colo.App.2004). Interpretation of a statute is a question of law that we review de novo. In re Marriage of Ciesluk, 113 P.3d 135, 141 (Colo.2005).
The CCIOA was enacted in 1991 "to establish a clear, comprehensive, and uniform framework for the creation and operation of common interest communities." § 38-33.3-102(1)(a), C.R.S.2008; Giguere v. SJS Family Enterprises, Ltd., 155 P.3d 462, 467 (Colo. App.2006). The CCIOA governs how a common interest community is created, altered, and terminated, §§ 38-33.3-201 to-223, as well as how such a community is managed, §§ 38-33.3-301 to -319, C.R.S.2008. The General Assembly recognizes "the policy of this state to give developers flexible development rights with specific obligations within a uniform structure of development." § 38-33.3-102(1)(c), C.R.S.2008 (emphasis added).
Appellants contend FVA failed to properly index plat 4 as required under section 38-33.3-201, C.R.S.2008, and therefore, it cannot be part of the declaration. This contention was not raised in the trial court. Although an appellate court has some discretion to entertain arguments not properly preserved below, see Roberts v. Am. Family Mut. Ins. Co., 144 P.3d 546, 550 (Colo.2006), we conclude that this is not one of those cases.
Appellants contend the "subsequent filings" language used in filing 3 referenced development rights, and as such, had to be properly reserved under the CCIOA. We agree.
Section 38-33.3-201(1), C.R.S.2008, provides in pertinent part: ...
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