COLORADO COURT OF APPEALS
2016COA152
Court of Appeals No. 15CA0918
City and County of Denver District Court No. 13CV32699
Honorable Catherine A. Lemon, Judge
Perfect Place, a Colorado limited liability company,
Plaintiff-Appellant and Cross-Appellee,
v.
R. Parker Semler,
Defendant-Appellee and Cross-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE FREYRE
Román and Lichtenstein, JJ., concur
Announced October 20, 2016
Podoll & Podoll, P.C., Richard B. Podoll, Robert C. Podoll, Robert A. Kitsmiller,
Greenwood Village, Colorado, for Plaintiff-Appellant
Semler & Associates, P.C., R. Parker Semler, Andrew Oh-Willeke, Jeremy
Goldblatt, Denver, Colorado, for Defendant and Cross-Appellee
¶1 In this case, we are asked to decide a matter of first
impression — whether § 38-33.3-213, C.R.S. 2016, of the Colorado
Common Interest Ownership Act (CCIOA), pertaining to the
subdivision of units, requires strict or substantial compliance. We
conclude, consistent with the statutory language and the purposes
of CCIOA, that substantial compliance is required.
¶2 In this quiet title action, plaintiff, Perfect Place, LLC, (a
member of the Blake Street homeowner’s association) appeals the
trial court’s judgment finding that defendant, R. Parker Semler,
owns parking spaces C and D in the 1940 Blake Street
Condominium (Blake Street) property.1 Semler cross-appeals the
court’s equitable enlargement of the historical dimensions of
parking space E and its corresponding decrease in the size of
parking space D. He also seeks an award of attorney fees under
CCIOA. We affirm the trial courts finding that the parking spaces
were properly subdivided and that Semler owns spaces C and D.
However, because we conclude that the trial court erred when it
1Nathan and Kari Peters were also named as defendants in the
original complaint. They reached a settlement with Perfect Place
concerning space E before trial.
1
adjusted the size of space E, and because we conclude the court
erred when it denied Semler’s motion for attorney fees, we reverse
in part, and remand the case for further proceedings.
I. Background
¶3 This case arises from a quiet title action in which Perfect Place
asserted ownership of three parking spaces in the Blake Street
property. In 2000, Blake Street bought a mixed use residential and
commercial building and recorded a written declaration subjecting
the property to the provisions of CCIOA. Thereafter, Blake Street
sold a majority interest in the building to Quail Street Company,
LLC (Quail Street). Quail Street’s principal and sole shareholder
was John Watson. Watson owned the majority of the building for
several years and made multiple changes to it, including
subdividing the garage into three individual parking spaces (C, D,
and E) by painting yellow dividing lines on the garage wall. Spaces
C and D were full-sized parking spaces and accommodated normal-
sized vehicles. Space E was smaller and was only able to
accommodate a motorcycle or a very small car.
¶4 Over time, Watson sold the individual parking spaces (as part
of condominium units) to different buyers, who subsequently sold
2
or mortgaged the spaces. Through the years, the City and County
of Denver taxed each space individually, the Blake Street
homeowners association separately assessed dues for each space,
and title insurance companies separately insured the spaces during
subsequent title transfers.
¶5 The subsequent title transfers are set forth in detail in
Appendices 1 and 2. As relevant here, Semler claimed title to space
C from a 2007 foreclosure proceeding in which he paid $641,0002
during the redemption period and obtained a deed in lieu of
foreclosure. Semler claimed title to space D through a different
foreclosure proceeding in which he obtained a deed in lieu of
foreclosure from the record owner.
¶6 In 2010, the association’s attorney notified Semler and Perfect
Place of clouded title concerning spaces D and E. Thereafter,
Semler paid more than $35,000 for a quitclaim deed from the
former record owner of space D and recorded that deed in 2012. He
claimed title to space E from a different deed in lieu of foreclosure
that stemmed from an unlawful conveyance and that became part
of the same 2007 foreclosure proceeding. See infra Part IV.
2 This amount included a condominium unit.
3
¶7 Perfect Place claimed title to all three spaces from a 2011
quitclaim deed it received from Watson.3 After receiving notice of
title problems with spaces D and E, Perfect Place paid Watson ten
dollars for the 2011 quitclaim deed and promptly recorded it.
¶8 Perfect Place also claimed title to spaces D and E from a series
of conveyances originating from a wild deed, see infra Part IV. It
paid ten dollars to Newtown Ten for a quitclaim deed purporting to
convey spaces “D and/or E.”
¶9 Perfect Place brought this quiet title action asserting superior
title to all three spaces based on the 2011 quitclaim deed. It further
alleged that all previous conveyances of the spaces were invalid
because Watson had never properly subdivided the garage in
accordance with the provisions of CCIOA.
¶ 10 Semler contended that Watson properly subdivided the garage,
that Perfect Place obtained the 2011 quitclaim deed from Watson
through fraudulent misrepresentations, and that Perfect Place was
not a bona fide purchaser for value because it only paid ten dollars
for the 2011 quitclaim deed.
3 In 2013, Watson signed a new quitclaim deed to correct errors in
the 2011 deed. We refer to the 2011 deed as the one purportedly
conveying title and the 2013 deed as the correction deed.
4
A. Trial Court’s Order
¶ 11 After a three-day hearing, the trial court found that Watson
subdivided the garage unit into three separate parking spaces. It
also found that Perfect Place procured the 2011 quitclaim deed by
fraud, concealment, and unclean hands. The court therefore
concluded that Semler was the rightful owner of spaces C and D.
¶ 12 Title to space E was resolved in favor of Perfect Place by
agreement of the parties after Perfect Place reached a pretrial
settlement with defendants Kari and Nathan Peters. Finding that
the equities weighed in favor of Semler, the court ordered him to
draft a proposed amendment to the Blake Street declaration,
including a new map depicting the boundaries of the three spaces.
It intended for Semler to record the amended map and to submit it
to the homeowners association for inclusion in the Blake Street
declaration.
B. Post-Trial Orders
¶ 13 Pursuant to the trial court’s order, Semler submitted a
proposed map allotting space C 132 square feet, space D 132
square feet, and space E 90 square feet. In computing these
dimensions, Semler relied on the historical boundaries of spaces C
5
and D and the dimensions of space E set forth in a recorded
Parking Space Licensing Agreement negotiated between Perfect
Place and Nathan and Kari Peters as a part of their pretrial
settlement.
¶ 14 Perfect Place objected to Semler’s proposal and argued that
“everyone understood that there were to be 3 parking spaces in the
Parking Space Unit,” and that “[t]he map proposed by Semler would
effectively prevent [it] from using parking space E as a parking
space.” Perfect Place submitted its own proposed map that would
“accommodate three cars” and that “properly indicated a large brick
pillar between spaces C and D.” It also requested an evidentiary
hearing.
¶ 15 The trial court began the hearing by noting that the weight of
the trial evidence suggested that space E was a usable parking
space for a small car, and that it intended, as an equitable matter,
to create three usable parking spaces in order to avoid future
litigation. After the hearing, the court found that space E had
always been smaller than spaces C and D, and it again
acknowledged that the balance of the equities weighed in favor of
Semler. In its final order, however, the court adopted a map that
6
allotted space C 129 square feet, space D 114 square feet, and
space E 122 square feet.
II. Propriety of Subdivision Under CCIOA
¶ 16 Perfect Place contends that the absence of a formal application
to the association’s board describing a reapportionment of the
common elements, as well as the absence of an amended
declaration or condominium map that strictly complies with CCIOA,
violates § 38-33.3-213. Perfect Place asserts that because CCIOA
was violated, spaces C, D, and E were never properly subdivided
and, instead, constitute a single unit as a matter of law. Semler
contends that the trial court’s subdivision findings are factual
findings that are supported by the record. We agree with Semler
and conclude that Watson substantially complied with CCIOA when
he subdivided the garage into three parking spaces.
¶ 17 After trial, the court found that one of two events occurred to
subdivide the garage: (1) either the original declarant subdivided the
garage when it filed the original declaration or (2) the first
purchaser and majority unit holder, Watson, subdivided the garage
into three spaces ─ C, D, and E ─ when he placed physical
demarcation lines on the garage wall separately identifying each
7
space. It concluded that if Watson subdivided the units, his failure
to comply with the technical requirements of § 38-33.3-213 did not
“materially violate CCIOA,” because he substantially complied with
the spirit and purpose of the law. The trial court reasoned that any
other reading of the statute would elevate “form over substance.”
¶ 18 We conclude the record supports the trial court’s finding that
Watson subdivided the garage into three separate parking spaces
and that Watson substantially complied with the provisions of
CCIOA when doing so. Because minor deficiencies should not
render otherwise marketable title unmarketable, we further
conclude that substantial compliance with the requirements of
§ 38-33.3-213 is sufficient to satisfy the application procedures for
subdividing a unit. Finally, because we may affirm a trial court’s
ruling on any grounds that are supported by the record, we need
not address the trial court’s alternative finding that the original
declarant subdivided the garage. See Rush Creek Sols., Inc. v. Ute
Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App. 2004).
A. Statutory Interpretation
¶ 19 We review issues of statutory construction de novo. See
Gagne v. Gagne, 2014 COA 127, ¶ 25. We review a court’s factual
8
findings for clear error and defer to those findings unless they are
not supported by the record. E-470 Pub. Highway Auth. v. 455 Co.,
3 P.3d 18, 22 (Colo. 2000).
¶ 20 In interpreting a statute, our primary objective is to ascertain
and effectuate the intent of the General Assembly. Specialty Rests.
Corp. v. Nelson,
231 P.3d 393, 397 (Colo. 2010). “If the statutory
language is clear, we interpret the statute according to its plain and
ordinary meaning.”
Id. We read words and phrases in context and
construe them according to their common usages. Gagne, ¶ 25.
We also interpret a statute in a way that best effectuates the
purpose of the legislative scheme. Id. at ¶ 26. When construing a
statute, we read and consider the statute as a whole and interpret it
in a manner that gives consistent, harmonious, and sensible effect
to all of its parts. Id.
¶ 21 “Not all directives and requirements declared in statute law
should be understood to have equal force[;]” therefore, “[w]hether
less than full compliance with particular provisions is permitted is
an issue of statutory construction.” Wainscott v. Centura Health
Corp.,
2014 COA 105, ¶ 24 (quoting 3 Norman J. Singer & J.D.
Shambie Singer, Sutherland Statutory Construction § 57:1, at 6
9
(7th ed. 2012)) (alteration omitted). Where the purposes of a
statutory requirement are satisfied, substantial, rather than strict
or absolute, compliance may be sufficient. See Finnie v. Jefferson
Cty. Sch. Dist. R–1, 79 P.3d 1253, 1257-58 (Colo. 2003); Meyer v.
Lamm,
846 P.2d 862, 876 (Colo. 1993); Woodsmall v. Reg’l Transp.
Dist.,
800 P.2d 63, 67-68 (Colo. 1990); Denver Classroom Teachers
Ass’n v. City & Cty. of Denver Sch. Dist. No. 1,
2015 COA 71, ¶ 46.
¶ 22 In determining whether a particular statutory requirement has
been satisfied, courts have imposed a degree of compliance
consistent with the objective sought to be achieved by the
legislation under consideration. Woodsmall,
800 P.2d at 67; see,
e.g., People v. Stanley,
169 P.3d 258, 261 (Colo. App. 2007) (holding
that substantial compliance is “actual compliance [with] respect to
the substance essential to every reasonable objective of the statute,
as distinguished from mere technical imperfections of form”
(quoting People v. Jacobs,
729 P.2d 757, 763-64 (Cal. 1987))). If the
statute requires only substantial compliance, a court must then
consider whether “the allegedly complying acts fulfilled the statute’s
purpose.” Grandote Golf & Country Club, LLC v. Town of La Veta,
252 P.3d 1196, 1203 (Colo. App. 2011); see also Bd. of Cty.
10
Comm’rs v. City & Cty. of Denver, 193 Colo. 325, 327-30,
566 P.2d
335, 337-38 (1977) (finding a statutory requirement that a map and
a school board resolution accompany an annexation petition was
substantially complied with where the map and resolution were
available to the city council when it considered the petition).
B. Substantial or Strict Compliance
¶ 23 In enacting CCIOA, the General Assembly intended a “clear,
comprehensive, and uniform framework for the creation and
operation of common interest communities.” § 38-33.3-102(1)(a),
C.R.S. 2016. One of the principal purposes of CCIOA is to “promote
effective and efficient property management through defined
operational requirements that preserve flexibility for such
homeowner associations.” § 38-33.3-102(1)(d) (emphasis added).
The General Assembly intended most common interest communities
to be bound by CCIOA and that developers have “flexible
development rights with specific obligations within a uniform
structure of development of a common interest community.” § 38-
33.3-102(1)(c) (emphasis added).
¶ 24 While one goal of CCIOA is uniformity, the General Assembly
has balanced that goal against the goal of flexibility, indicating that
11
a rigid or strict interpretation is not favored. For example,
§ 38-33.3-203(4), C.R.S. 2016, states: “Title to a unit and common
elements is not rendered unmarketable or otherwise affected by
reason of an insubstantial failure of the declaration to comply with
this article. Whether a substantial failure impairs marketability is
not affected by this article.” (Emphasis added.) Keeping these
purposes in mind, we examine the plain language of § 38-33.3-213,
which concerns subdividing units.
¶ 25 Section 38-33.3-213(1) provides that “[i]f the declaration
expressly so permits, a unit may be subdivided into two or more
units.”4 The remainder of § 38-33.3-213 sets forth the procedures a
unit owner must follow to subdivide property:
(2) In order to subdivide a unit, the unit owner
of such unit, as the applicant, must submit an
application to the executive board, which
application shall be executed by such owner
and shall include:
(a) Evidence that the applicant of the proposed
subdivision shall have complied with all
building codes, fire codes, zoning codes,
planned unit development requirements,
master plans, and other applicable ordinances
4 The parties do not dispute, and the admitted Blake Street
declaration confirms, that subdivision by the first purchaser from
the grantor is permitted.
12
or resolutions adopted and enforced by the
local governing body and that the proposed
subdivision does not violate the terms of any
document evidencing a security interest
encumbering the unit;
(b) The proposed reallocation of interests, if
any;
(c) The proposed form for amendments to the
declaration, including the plats or maps, as
may be necessary to show the units which are
created by the subdivision and their
dimensions, and identifying numbers;
(d) A deposit against attorney fees and costs
which the association will incur in reviewing
and effectuating the application, in an amount
reasonably estimated by the executive board;
and
(e) Such other information as may be
reasonably requested by the executive board.
(3) No subdivision of units shall be effected
without the necessary amendments to the
declaration, plats, or maps, executed and
recorded pursuant to section 38-33.3-217(3)
and (5).
(4) All costs and attorney fees incurred by the
association as a result of an application shall
be the sole obligation of the applicant.
(Emphasis added.)
¶ 26 This language clearly requires an owner to submit an
application to the executive board that includes evidence of
13
compliance with land use regulations, ordinances, and codes, and
that includes amendments to the declaration and map clearly
identifying the subdivided units.
¶ 27 While courts typically construe the terms “shall” and “must”
as mandatory, these phrases are not dispositive in determining
whether a statute requires substantial compliance. See, e.g.,
Finnnie, 79 P.3d at 1256 (finding that, under Colorado’s
governmental immunity statute § 24-10-109(3), C.R.S. 2016,
requires only substantial compliance despite the plain language of
“shall”); see also Woodsmall,
800 P.2d at 67 (concluding that for
purposes of governmental immunity substantial compliance is
appropriate where the legislative history indicates it did not intend
strict compliance). Importantly, the phrases “shall” and “must” are
juxtaposed with the phrases “may” and “if,” which indicates that
other statutory procedures are merely discretionary. See A.S. v.
People,
2013 CO 63, ¶ 21 (“[T]he legislature’s use of the term ‘may’
is generally indicative of a grant of discretion or choice among
alternatives.”); but see Ryan Ranch Cmty. Ass'n, Inc. v. Kelley,
2016
CO 65, ¶ 42 (holding that where the statute contained the terms
14
“shall” and “must” together and contained no discretionary
language, the provisions of CCIOA were considered mandatory).
¶ 28 Further, while the statute states that subdivision will not be
effected without corresponding amendments to the declaration or
the recorded map, it does not provide any consequence for
noncompliance with its other provisions. This omission, therefore,
suggests that the statutory language is discretionary rather than
mandatory. See In re Marriage of Slowinski, 199 P.3d 48, 52 (Colo.
App. 2008) (“The crucial difference between statutes considered
discretionary and those deemed mandatory is the consequence of
noncompliance.”). To be sure, the plain language of § 38-33.3-213
indicates that to obtain a subdivision, an applicant “shall” submit
an application to the board and amend the map or declaration.
But, it is silent about whether a subdivision will be barred when an
applicant fails to submit a formal written application or fails to
strictly comply with its other provisions. Accordingly, we turn to
other rules of statutory construction — including other provisions
of CCIOA and its legislative history — to discern the General
Assembly’s intent. See People v. Terry,
791 P.2d 374, 376 (Colo.
1990) (“If the statutory language lends itself to alternative
15
constructions and its intended scope is unclear, a court may apply
other rules of statutory construction and look to pertinent
legislative history to determine which alternative construction is in
accordance with the objective sought to be achieved by the
legislation.”).
¶ 29 First, applying rules of statutory construction, we consider
CCIOA as a whole. See also People v. Dist. Court, 713 P.2d 918, 921
(Colo. 1986) (“To reasonably effectuate the legislative intent, a
statute must be read and considered as a whole.”). In doing so, we
discern that § 38-33.3-213 does not require consent of the unit
owners when an applicant seeks to subdivide.
¶ 30 For example, under CCIOA, amendments to a declaration
typically require the approval of at least fifty percent, but not more
than sixty-seven percent, of the association members. See § 38-
33.3-217(1)(a)(I), C.R.S. 2016. In contrast, § 38-33.3-213 is not
subject to this voting requirement. This voting exception, therefore,
indicates that an applicant’s authority to subdivide a unit comes
not from the consent of the unit owners, but instead comes directly
from the language of the declaration itself. Thus, the absence of
this voting requirement shows that the purpose of submitting an
16
application to the board is to provide it with notice that a unit
owner intends to exercise his or her authority to subdivide a unit in
accordance with the declaration. It does not constitute a request
for such authority.
¶ 31 Moreover, the application serves to assure the board that the
subdivision complies with applicable laws and that it will be
properly memorialized in the recorded map or declaration. Once
recorded, the map then alerts title companies, taxing authorities,
and other interested parties of the existence of the new unit.
¶ 32 Because § 38-33.3-213 serves the purpose of providing notice
of an owner’s intent to subdivide a unit, we conclude the General
Assembly intended for applicants to substantially comply with its
provisions. See Wainscott, ¶ 44 (“[S]ubstantial compliance is well
suited for a notice provision that is not jurisdictional.”). Moreover,
to invalidate a subdivision because of a technical defect in the
notice would elevate form over substance. See, e.g., id. at ¶ 43 (“A
substantial compliance standard also effectuates the specific
purpose of the statutory filing and notice requirements by elevating
the functional effect of a hospital’s effort to provide notice over strict
17
adherence to formal details that may be immaterial under the
circumstances.”).
¶ 33 This interpretation is consistent with the General Assembly’s
purpose in enacting CCIOA. A written summary of the purposes for
enacting CCIOA, prepared by the chair of the drafting committee,
James Winokur, shows that the General Assembly did not intend
rigid or hyper-technical interpretations of the statute. See
Background and Summary of Basic Provisions, Hearings on H.B.
1292 before the H. Judiciary Comm., 58th Gen. Assemb., 1st Sess.
(Mar. 11, 1991) (report of James L. Winokur, Chair, CCIOA Drafting
Committee). Instead, it aimed to avoid technical defects that would
render title unmarketable. Id. Indeed, the purpose of § 38-33-213
was to “establish reasonable procedures” that would act to simplify
the existing law. Id.
¶ 34 Consistent with these legislative goals, the General Assembly
incorporated the principles of equity and flexibility into CCIOA. See
§ 38-33.3-108, C.R.S. 2016 (permitting a court to supplement the
statute with the principles of law and equity); Arrabelle at Vail
Square Residential Condo. Ass’n, Inc. v. Arrabelle at Vail Square LLC,
2016 COA 123, ¶ 60 (same); see also Restatement (Third) of Prop.:
18
Servitudes § 6.3 cmt. a (Am. Law Inst. 2000) (noting that, when
interpreting statutes governing common interest communities, it is
within a court’s equitable powers “to fashion remedies to correct
mistakes and oversights and to protect the public interest”).
¶ 35 Thus, both the statutory scheme and the legislative history
demonstrate that, while uniformity is important, statutory
interpretations of CCIOA should give way to flexibility where strict
adherence to provisions that create uniformity would render title
unmarketable.
¶ 36 In sum, we conclude that the purpose of § 38-33.3-213 is to
provide the board with notice that a unit owner is exercising his or
her subdivision authority under the declaration. For the board to
effectively consider an application, it must have adequate
information to ensure compliance with land use laws, ordinances,
and codes, as well as to ensure the applicant identifies a new unit
in a recorded declaration, plat, or map. However, the absence of a
specific consequence for strict noncompliance requires that the
application be appropriately balanced against CCIOA’s broader
goals of flexibility and marketability of title. Thus, the information
required by the board to ensure compliance will vary depending on
19
the specific subdivision requested. To require strict compliance
with the statute could lead to the unreasonable result of rendering
title unmarketable because of a technical defect that was otherwise
insignificant. Such an interpretation is disfavored and would
contravene CCIOA’s goals. See Young v. Brighton Sch. Dist. 27J,
2014 CO 32, ¶ 11 (“We will not adopt statutory constructions that
defeat legislative intent or that lead to unreasonable or absurd
results.”).
¶ 37 Accordingly, we conclude that because the statutory scheme
and legislative history of CCIOA favor flexibility, and because an
insubstantial failure to comply with technical requirements should
not render title unmarketable, § 38-33.3-213 requires substantial
rather than strict compliance with its provisions.
C. Application
¶ 38 With these conclusions in mind, we address the degree of
compliance necessary here. To determine whether there has
been substantial compliance with a statute, we consider whether
the allegedly complying acts fulfilled the statute’s purpose. Town of
La Veta, 252 P.3d at 1203.
20
¶ 39 Here, the trial court found that Watson substantially complied
with the statute because, as the majority owner and board member
of the homeowner’s association, any application for subdividing the
garage would have been submitted to him for his approval. The
trial court recognized that the declaration gave him the authority,
as the first purchaser from the grantor, to subdivide the garage. It
further noted that most of the provisions of § 38-33.3-213 were
inapplicable to the subdivision of a unit creating parking spaces, as
subdivision could be accomplished through the simple act of
painting lines on the ground of the garage. The trial court found
insubstantial errors in the declaration and reformed them to reflect
the subdivision of the garage unit.
¶ 40 We conclude that Watson’s status as both property owner and
majority-holding board member satisfies the application
requirements of § 38-33.3-213(2) and that requiring more formal
proof of an application would elevate form over substance. Thus,
we reject Perfect Place’s argument that the absence of a formal
application renders the subdivision void.
¶ 41 The record also shows that Watson painted dividing lines in
the garage to establish three parking spaces. Because neither party
21
points to any building ordinance or law that Watson violated when
he created the parking spaces, we assume Watson was on notice of,
and considered whether painting the lines would comply with, all
relevant laws. Thus, we conclude that § 38-33.3-213(2)(a) was
satisfied.
¶ 42 Next, the record includes the declaration, which contains a
subdivision of unit clause that provides for division of the common
ownership “in the ratio that the square footage area of each new
unit bears to the total square footage area of the original unit,”
thereby demonstrating the proper allocation of interests. It further
shows that the association assessed dues for each parking space
based on the size and percentage ownership of each space in
accordance with the declaration. This ongoing assessment of dues
demonstrates that the association knew the size and percentage
ownership of each space. Accordingly, we reject Perfect Place’s
argument that the subdivision was nullified by the absence of an
amendment reallocating interests under § 38-33.3-213(2)(b) and
conclude this amendment would have served no purpose, given the
clear formula in the declaration and the association’s ability to
assess dues accordingly. See Westesen v. Olathe State Bank, 75
22
Colo. 340, 344,
225 P. 837, 839 (1924) (the law does not require
performance of futile acts); Highlands Ranch Univ. Park, LLC v. Uno
of Highlands Ranch, Inc.,
129 P.3d 1020, 1024 (Colo. App. 2005)
(same).
¶ 43 Next, we consider whether the recorded map complies with
§ 38-33.3-213(2)(c), which states that an amended map should
indicate the dimensions of the newly created units “as may be
necessary.” We note that the recorded map clearly shows the
garage divided into three separate units and identifies them as C, D,
and E. However, it does not show the dimensions of each parking
space. While we acknowledge that the dimensions of each parking
space should have been included in the map for clarity of
ownership, we nevertheless conclude that, under the
circumstances, this failure does not render the subdivision void.
Indeed, numerous owners used the spaces without boundary issues
for more than a decade. And, the map was sufficient for the
association to assess dues for each space, for the City and County
of Denver to tax each unit,5 and for title companies to provide title
5The declaration provides that the declarant will advise the
Assessor of the City and County of Denver of the condominium plan
23
insurance for transfers of ownership by general or special warranty
deed. Accordingly, we conclude that the recorded map
substantially complied with the requirements of § 38-33.3-213(2)(c)
and that the subdivision was not barred by § 38-33.3-213(4).6
¶ 44 Because the record shows that Watson testified about his
intention to subdivide the garage, that the declaration gave Watson
the authority to subdivide the units, and that a map identifying the
spaces was recorded consistent with his decision to subdivide the
garage, we conclude that Watson substantially complied with the
provisions of § 38-33.3-213. To allow Perfect Place to undo more
than ten years of board-ratified action through a rigid interpretation
of CCIOA would violate the purpose and the spirit of the statute.
Absent evidence that Watson’s failure to comply with § 38-33.3-213
was anything more than insubstantial, we conclude that he
properly divided the garage into three separate parking spaces and
affirm the trial court’s judgment.
“so that each unit shall be deemed a separate parcel of real property
and subject to separate assessment and taxation.”
6 Because Perfect Place does not challenge compliance under § 38-
33.3-213(2)(d) and (e), C.R.S. 2016, we need not address these
provisions. See Flagstaff Enters. Constr. Inc. v. Snow, 908 P.2d
1183, 1185 (Colo. App. 1995) (declining to address an issue not
properly raised on appeal).
24
III. Equitable Remedies
¶ 45 Both parties assert that the trial court abused its discretion in
crafting equitable relief. Perfect Place contends that the court
abused its discretion when it (1) reformed the deeds of Watson and
Quail Street to validly convey property; (2) found that Watson and
Quail Street were alter egos; and (3) voided the 2011 quitclaim deed
from Watson to Perfect Place by declaring it a fraudulent
conveyance.
¶ 46 Semler contends the trial court abused its equitable discretion
when it awarded twenty more inches to space E (and Perfect Place)
because, in so doing, the court gave the party with unclean hands a
benefit to the detriment of the party with clean hands. We conclude
the trial court did not abuse its discretion in reforming the deeds or
in voiding the fraudulent conveyance from Watson to Perfect Place.
However, we conclude the court’s award of additional area to space
E (and Perfect Place) was an abuse of discretion because this
equitable remedy benefitted a party with unclean hands.
A. Standard of Review
¶ 47 Actions to quiet title under C.R.C.P. 105 are equitable
proceedings. See Keith v. Kinney, 961 P.2d 516, 518 (Colo. App.
25
1997). “[T]he power to fashion equitable remedies lies within the
discretion of the trial court.” La Plata Med. Ctr. Assocs., Ltd. v.
United Bank of Durango, 857 P.2d 410, 420 (Colo. 1993). A trial
court’s discretion, however, is not unlimited. Lewis v. Lewis,
189
P.3d 1134, 1141 (Colo. 2008), as modified on denial of reh’g (Aug.
18, 2008). We review the trial court’s findings of fact for an abuse
of discretion, but we review de novo whether the trial court
“correctly understood the appropriate test [for the equitable
remedy].”
Id.
B. Deed Reformation
¶ 48 Quiet title actions are governed by C.R.C.P. 105, which
authorizes “[a]n action . . . brought for the purpose of obtaining a
complete adjudication of the rights of all parties thereto, with
respect to any real property and for damages, if any, for the
withholding of possession.” C.R.C.P. 105(a). Such actions sound in
equity and are governed by equitable principles. FDIC v. Mars, 821
P.2d 826, 830 (Colo. App. 1991); Nielsen v. Woods,
687 P.2d 486,
489 (Colo. App. 1984); see also Keith,
961 P.2d at 518 (“Actions to
quiet title originated as claims in equity to invalidate claims adverse
to the claimant.”). A court considering such a claim is tasked with
26
the equitable duty of “completely adjudicat[ing] the rights of all
parties to the action claiming interests in the property” and has
substantial discretion in performing this duty. Keith, 961 P.2d at
519; Hildebrand v. Olinger,
689 P.2d 695, 697 (Colo. App. 1984).
¶ 49 In exercising its discretion, a trial court may be called upon to
reform a deed to quiet title. When considering “whether the record
supports [a] trial court’s order of reformation,” a reviewing court
“must determine whether the record contains sufficient evidence of
the parties’ intentions to permit reformation of [the written
instrument].” Md. Cas. Co. v. Buckeye Gas Prods. Co.,
797 P.2d 11,
13 (Colo. 1990) (citing Page v. Clark,
197 Colo. 306, 313,
592 P.2d
792, 796 (1979)); Page,
197 Colo. at 313,
592 P.2d at 796 (trial
court’s factual findings must be upheld on appeal unless so clearly
erroneous as to be unsupported by the record). “Reformation of a
written instrument is appropriate only when the instrument does
not represent the true agreement of the parties and the purpose of
reformation is to give effect to the parties’ actual intentions.” Md.
Cas. Co.,
797 P.2d at 13.
¶ 50 “[M]utual mistake of fact is [one ground] for reformation,”
provided that “the mutual mistake does not express the true intent
27
or agreement of the parties.” Segelke v. Kilmer, 145 Colo. 538, 543,
360 P.2d 423, 426 (1961). “An essential prerequisite to a court’s
power to reform a contract on the ground of mutual mistake is the
existence of a prior agreement that represents the actual
expectations of the parties and provides the basis upon which a
court orders reformation.” Md. Cas. Co.,
797 P.2d at 13; see also
Segelke,
145 Colo. at 543,
360 P.2d at 426 (“[T]he alteration sought
to be made . . . must be one to which the parties have earlier
assented and which by mistake was either omitted or incorrectly set
forth in the final instrument.”).
¶ 51 Here, because Watson treated himself and his business entity,
Quail Street, as one, title was clouded without reformation of the
deeds. Quail Street deeded parking spaces to Watson, who then
conveyed them in the name of Quail Street to third parties. The
court found, with record support, that because Watson was the sole
shareholder of Quail Street, he inadvertently deeded parking spaces
from Quail Street that should have been from him, and deeded
spaces from him that should have been deeded from Quail Street.
It also found that Watson relied on title companies to ensure that
he was deeding the properties from the correct entity, and, thus,
28
any conveyance errors were inadvertent. Therefore, the trial court
reformed the deeds from Watson and Quail Street to reflect
transfers from the correct entity.
¶ 52 We discern no abuse of discretion. Consistent with the trial
court’s actions, a division of this court has noted that a proper
basis for reformation arises when both parties mistakenly believe
that a deed identified the correct owner or grantor. See Ranch O,
LLC v. Colo. Cattlemen’s Agric. Land Tr., 2015 COA 20, ¶¶ 17-21
(holding that reformation of a conservation deed to reflect that the
actual owner of the property, an LLC, was the grantor of the
conservation easement was proper given that both parties
“mistakenly believed that it correctly identified the grantor and that
the grantor had the authority to convey the conservation
easement”). Further, the trial court’s factual findings are supported
by the record. Accordingly, because the record shows Watson
mistakenly conveyed the parking spaces in his and Quail Streets’
names, and because other parties could have reasonably believed
he was the correct signor for either Quail Street or himself, the trial
court did not abuse its discretion in reforming the deeds.
C. Alter Egos
29
¶ 53 Because we conclude that the trial court did not abuse its
discretion in reforming the deeds based on a theory of mutual
mistake, we need not address whether the court properly found
Quail Street and Watson to be alter egos. See Blood v. Qwest Servs.
Corp., 224 P.3d 301, 329 (Colo. App. 2009) (noting that the court of
appeals can affirm on any grounds supported by the record).
D. Deed Voided by Fraud
¶ 54 Perfect Place contends that the trial court abused its
discretion by finding that the 2011 quitclaim deed from Watson to
Perfect Place was an invalid instrument because its conveyance
involved fraudulent misrepresentations. Specifically, Perfect Place
contends that Semler lacks standing to challenge the validity of the
2011 quitclaim deed, and further contends that even if it was
procured by fraud, the deed would be voidable, not void, under the
law. Semler responds that the record supports the trial court’s
finding that Perfect Place’s attorney misrepresented the
circumstances surrounding the 2011 quitclaim deed and, thus, that
this deed is void.
¶ 55 For the reasons stated below, we conclude that the trial court
properly voided the quitclaim deed by finding that the
30
circumstances surrounding the conveyance were fraudulent.
Further, because this is a C.R.C.P. 105 proceeding, where the rights
of all interested parties must be adjudicated, Semler has standing
to assert that his title to the parking spaces is superior to Perfect
Place’s title under the theory that Perfect Place’s title was procured
by fraud.
1. Standing
¶ 56 We first address Perfect Place’s standing argument and
conclude that Perfect Place mistakenly confuses the trial court’s
finding of a fraudulent conveyance with a finding of fraud. Indeed,
Semler did not plead fraud, nor did the court enter judgment on or
award damages for a claim of fraud. But he need not plead fraud in
order to assert a legal right to the parking spaces that was superior
to Perfect Place’s right. Under the circumstances here, Semler’s
superior right was based on the theory that Perfect Place obtained
title through a fraudulent conveyance, and the court was required,
under C.R.C.P. 105(a), to fully adjudicate the rights of all interested
parties. “Even if a counterclaim is not pled, or an issue is not
raised in the pleadings but is apparent from the evidence, the court
31
should reach the issue to give full relief.” Keith, 961 P.2d at 519.
Accordingly, we reject Perfect Place’s standing argument.
2. Deed Voided for Fraud
¶ 57 Colorado courts have consistently recognized the important
distinction between a void deed and a deed that is merely voidable.
See Delsas v. Centex Home Equity Co., 186 P.3d 141, 144 (Colo.
App. 2008); see also Upson v. Goodland State Bank & Tr. Co.,
823
P.2d 704, 705 (Colo. 1992); Svanidze v. Kirkendall,
169 P.3d 262,
266 (Colo. App. 2007). “A void deed is a nullity . . . from the
beginning, for any purpose” and “does not, and cannot, convey title,
even if recorded.” Delsas,
186 P.3d at 144. “In contrast, a voidable
deed conveys property and creates legal title unless, and until, it is
set aside by the court.”
Id. Thus, a good faith purchaser asserting
an ownership interest under a voidable deed will be protected.
Id.
¶ 58 In Colorado, a deed procured by “fraud in the factum” is void.
Id. “Fraud in the factum” exists when “a person has been
fraudulently deceived about the nature of a document, so that he or
she is excusably ignorant about what has been signed.”
Id. (citation
omitted). Compare
id. at 145 (finding a material issue of fact
existed about whether a warranty deed was void for “fraud in the
32
factum” where the grantees “took advantage of [the grantor’s] . . .
incapacity and misled him about the nature of the warranty deed to
the point that he was ignorant about what he had signed”), with
Deutsche Bank Tr. Co. Ams. v. Samora, 2013 COA 81, ¶¶ 44-46
(refusing to find “fraud in the factum” where a grantee understood
that the document she signed was a warranty deed and, thus, was
not excusably ignorant about the nature of the document, but
believed the grantor’s fraudulent misrepresentations about how the
deed would be used). Unlike other types of fraud, “fraud in the
factum” yields an instrument that is void, not merely voidable.
Delsas,
186 P.3d at 144.
¶ 59 Here, the record supports the trial court’s finding that the
2011 quitclaim deed from Watson to Perfect Place was a fraudulent
conveyance. Watson believed that the quitclaim deed merely
corrected a technical defect in title from an earlier conveyance and
told Perfect Place’s attorney, “I don’t own anything there. I haven’t
for years. I sold it all a long time ago.”
¶ 60 Additionally, Perfect Place’s attorney fostered Watson’s belief
that the deed was intended only to correct technical defects by
representing that Perfect Place lawfully owned all three parking
33
spaces when he knew title problems existed. Moreover, when
Watson asked to see the title commitments before signing the deed,
Perfect Place’s attorney said he was reluctant to send them because
they contained issues of other owners. Watson confirmed that he
would not have signed the 2011 quitclaim deed if he had known
that Perfect Place did not have a valid claim to the parking spaces.
¶ 61 Accordingly, we conclude the record supports the trial court’s
finding that the quitclaim deed was obtained by fraud and
specifically by “fraud in the factum.” Because a deed obtained by
“fraud in the factum” is void, Delsas, 186 P.3d at 144, we need not
address the distinction between a void and a voidable deed and,
therefore, affirm the court’s finding of a fraudulent conveyance.
E. Amendment of the Declaration Map
¶ 62 Semler contends that the trial court abused its discretion
when it increased the size of space E at the expense of his space D,
thereby benefitting Perfect Place, a party it had found to have
unclean hands. We agree and conclude that although the court
retains broad discretion in determining matters of equity, it may not
award equitable relief to benefit a party with unclean hands.
1. Unclean Hands
34
¶ 63 A party requesting equitable relief must do so with clean
hands. Salzman v. Bachrach, 996 P.2d 1263, 1269 (Colo. 2000).
Conversely, a party requesting equitable relief may raise unclean
hands as a defense to equitable remedies. Wilson v. Prentiss,
140
P.3d 288, 293 (Colo. App. 2006). Whether the doctrine applies is
within the discretion of the trial court. Hildebrand,
689 P.2d at
697; see also Prentiss,
140 P.3d at 293. The clean hands doctrine
is informed by public policy and is thus intended to protect the
integrity of the court. Premier Farm Credit, PCA v. W-Cattle, LLC,
155 P.3d 504, 520 (Colo. App. 2006). Thus, Colorado law adheres
to the maxim that “equity refuses to lend its aid to a party who has
been guilty of unconscionable conduct in the subject matter in
litigation.”
Id. at 519 (emphasis added) (citation omitted).
¶ 64 Whether a party acted with unclean hands is a question of
fact.
Id. at 520. Because equitable matters are entirely
discretionary, it is within the trial court’s discretion not only to
determine whether sufficient facts support a finding of unclean
hands, but also to decide whether to grant equitable relief.
Id.
Accordingly, the court’s decision whether to invoke the unclean
hands doctrine is reviewed for an abuse of discretion. See
id. A
35
trial court abuses its discretion if its decision is manifestly
unreasonable, arbitrary, or unfair. See Schneider v. Drake, 44 P.3d
256, 261 (Colo. App. 2001). In assessing whether a court abused
its discretion, a reviewing court must consider whether the trial
court’s decision fell within in a range of reasonable options. E-470
Pub. Highway Auth. v. Revenig,
140 P.3d 227, 230-31 (Colo. App.
2006).
2. Analysis
¶ 65 As noted, C.R.C.P. 105 requires the trial court to adjudicate all
matters and afford the parties complete relief. Thus, a trial court
may properly amend boundaries in a declaration map as part of its
equitable power under this rule. Here, however, the trial court
explicitly found that Perfect Place came to court with unclean hands
concerning its claim to the parking spaces, including space E. This
finding, therefore, precluded the court not only from adding square
footage to space E, but also from removing square footage from
space D. Accordingly, the trial court’s amendment resulted in
bestowing an unfair benefit to Perfect Place, the party with unclean
hands, and an unfair detriment to Semler, contrary to law. See
Salzman, 996 P.2d at 1269 (finding that a party’s unclean hands
36
should limit his relief unless the other party benefitted more from
the deception).
¶ 66 The trial court’s amendment of the map was also manifestly
unreasonable. The record demonstrates that space E had always
been a smaller space than spaces C and D. Indeed, Watson
testified that space E was “exceptionally small,” and “motorcycle
width.” The trial court noted that space E should be smaller than
spaces C and D, not only based on the historical boundaries, but
also based on its finding that the balance of equities weighed in
favor of Semler. Yet, inexplicably, it adopted dimensions contrary
to these findings that resulted in space E receiving thirty-two
square feet more space than it was originally allotted and space D
receiving eighteen square feet less space than it was originally
allotted. The trial court’s amendment contradicted its findings and
was therefore manifestly unreasonable.
¶ 67 Finally, the trial court’s establishment of the parking space
boundary lines was arbitrary. The record reflects that as early as
2002, painted lines marked the boundaries between each parking
space. Indeed, the trial court found that “Watson went to the
parking garage and physically marked off the separate parking
37
spaces which are still discernible today.” We acknowledge that the
record is unclear concerning the precise historical boundaries of the
spaces. However, the trial court’s finding that the original
boundaries were still visible, coupled with its finding that space E
was always smaller than spaces C and D, compels us to conclude
that the map’s current dimensions are not supported by the record
and are therefore arbitrary.7
¶ 68 Accordingly, we conclude that while the trial court had broad
discretion to order equitable relief, it abused its discretion when it
amended the map in favor of the party with unclean hands and
when it adopted boundaries contrary to the evidence in the record.
We reverse the trial court’s boundary findings and remand the case
for redetermination of the boundary lines consistent with their
historical dimensions.
IV. Resulting Chain of Title
¶ 69 Both Perfect Place and Semler claim superior title to the
parking spaces. Thus, we review the chain of title to each space
7 We also note that the dimensions for space E in the recorded
“Parking Space Lease Agreement” executed between Perfect Place
and Nathan and Kari Peters are smaller than those in the map the
trial court adopted in its final order.
38
based on the deeds in the record, including the trial court’s
reformations.
A. Standard of Review and Law
¶ 70 Interpretation of a written document presents a question of
law subject to de novo review. See Bolser v. Bd. of Comm’rs, 100
P.3d 51, 53 (Colo. App. 2004); Collins v. Colo. Mountain Coll.,
56
P.3d 1132, 1135 (Colo. App. 2002). In construing a deed, a court’s
paramount purpose is to ascertain the parties’ intent. Notch
Mountain Corp. v. Elliott,
898 P.2d 550, 557 (Colo. 1995). “We must
not ascertain intent from ‘portions presented in isolated sentences
and clauses,’ but from the deed as a whole.” Michaelson v.
Michaelson,
939 P.2d 835, 839 (Colo. 1997) (quoting Notch Mountain
Corp.,
898 P.2d at 557); see Percifield v. Rosa,
122 Colo. 167, 177,
220 P.2d 546, 551 (1950); Bolser,
100 P.3d at 53.
¶ 71 The plaintiff in a quiet title action has the burden of
establishing title superior to that claimed by the defendant. Hutson
v. Agric. Ditch & Reservoir Co.,
723 P.2d 736, 738 (Colo. 1986); see
also Hinojos v. Lohmann,
182 P.3d 692, 697 (Colo. App. 2008).
Thus, the plaintiff may not capitalize on the weakness of the
defendant's claim to title, but can only succeed by establishing the
39
strength of his or her own claim to title. Sch. Dist. No. Six v.
Russell, 156 Colo. 75, 82,
396 P.2d 929, 932 (1964); Fastenau v.
Engel,
129 Colo. 440, 443-45,
270 P.2d 1019, 1020-21 (1954).
Accordingly, if the facts fail to show that the plaintiff has title, he or
she may not attack the sufficiency of the evidence on which the
court adjudged title to be in the defendant. Hinojos,
182 P.3d at
697.
B. Parking Space C
¶ 72 Watson or Quail Street first conveyed spaces C and D to Aspen
Equestrian for valuable consideration in a warranty deed recorded
on July 24, 2004. Aspen Equestrian conveyed space C to Corey
Salankey by a special warranty deed recorded on July 28, 2006.
The public trustee foreclosed on space C on October 16, 2007.
During the redemption period, Semler paid the balance of
Salankey’s loan and received title to space C on January 20, 2008.
The record does not reflect any subsequent conveyance of space C.
See infra Appendix 1.
C. Parking Space D
¶ 73 Aspen Equestrian conveyed space D to Shanoah Blake by a
special warranty deed recorded on September 27, 2006. Blake
40
conveyed space D to Semler in a deed in lieu of foreclosure and in a
quitclaim deed recorded on August 12, 2012.
¶ 74 In a wild deed,8 Jay Weinberg purported to convey space D to
Trend Investments in a special warranty deed recorded on March
13, 2009. Weinberg was the principal and sole shareholder of
Trend Investments. On the same day, Trend Investments conveyed
space D to Newtown Ten (of which Weinberg was the principal and
sole shareholder) by special warranty deed. However, the deed
recorded on March 19, 2009, purported to convey space “D and/or
E” to Perfect Place (from Newtown Ten) by a quitclaim deed for ten
dollars consideration. See infra Appendix 2.
¶ 75 We conclude that Semler’s title to space D is superior to
Perfect Place’s title for three reasons. First, Perfect Place’s title
stems from a wild deed beginning with Weinberg, who thereafter
conveyed title to two entities he owned before finally conveying title
to Perfect Place. Second, Perfect Place’s receipt of a quitclaim deed
for ten dollars called into question Perfect Place’s status as a bona
fide purchaser for value. See In re Marriage of Allen, 724 P.2d 651,
8See Ranch O, LLC v. Colo. Cattlemen’s Agric. Land Tr.,
2015 COA
20, ¶¶ 29-32 (stating that a wild deed is “a deed in which the
grantor was a stranger to title”).
41
659 (Colo. 1986) (holding that to become a bona fide purchaser a
party must also give adequate consideration, or value, to gain legal
and equitable title). Finally, Perfect Place was not a bona fide
purchaser because it had constructive notice, through Blake’s
recorded 2006 deed, that Newtown Ten had no legal title to space D.
See Ranch O, LLC, ¶ 30 (stating that the purpose of Colorado’s race-
notice statute is “to protect purchasers of real property against the
risk of prior secret conveyances by the seller and to allow a
purchaser to rely on the title as it appears of record”); see also
Franklin Bank, N.A. v. Bowling, 74 P.3d 308, 313 (Colo. 2003)
(“When a party properly records his interest in property with the
appropriate clerk and recorder, he constructively notifies ‘all the
world’ as to his claim.”).
¶ 76 In contrast, Semler received title to space D directly from
Blake’s recorded deed and had no notice of either Trend
Investments’ or Newtown Ten’s conveyances to Perfect Place.
Collins v. Scott,
943 P.2d 20, 22 (Colo. App. 1996) (holding that
recording a deed is “notice only to those persons claiming under the
same chain of title who are bound to search for it” and that
“[d]ocuments outside the chain of title provide no notice unless a
42
possible irregularity appears in the record which indicates the
existence of some outside interest by which the title may be
affected”). Further, unlike Perfect Place, Semler paid valuable
consideration for his deed, making him a bona fide purchaser for
value. Accordingly, we conclude that Semler’s title to space D is
superior to Perfect Place’s title. Guar. Bank & Tr. Co. v. LaSalle Nat’l
Bank Ass’n, 111 P.3d 521, 523 (Colo. App. 2004) (noting that
Colorado’s recording statute will “protect bona fide purchasers
without notice, or anyone who in good faith and without notice of a
prior unrecorded deed or other instrument acquires a lien or
encumbrance on the same tract of land”).
D. Parking Space E
¶ 77 While neither party explicitly challenges Perfect Place’s
ownership of space E, we note that some of our findings necessarily
affect space E’s title. As previously discussed, the trial court found
that the 2011 quitclaim deed did not validly convey title in space E
to Perfect Place. Rather, the trial court found that Perfect Place
owned space E by an agreement of the parties that was based on a
pretrial settlement between Perfect Place and Nathan and Kari
43
Peters.9 Thus, we do not address space E’s chain of title here.
Because the legality of space E’s ownership is not before us, this
opinion should not be construed as approving ownership of space E
in any party.
V. Attorney Fees
¶ 78 Semler requests attorney fees on appeal and contends the trial
court erred when it denied his motion for attorney fees and costs at
trial. Perfect Place contends that Semler is not entitled to attorney
fees because it did not bring this action under CCIOA. We conclude
that Semler should be awarded trial and appellate attorney fees
because he was required to “defend” his title under the provisions of
CCIOA.
¶ 79 Section 38-33.3-123(1)(c), C.R.S. 2016, provides:
In any civil action to enforce or defend the
provisions of this article or of the declaration,
9 We note that parties cannot stipulate to ownership of property to
which they have no valid title. In re Estate of Masden, 24 P.3d 634,
636 (Colo. App. 2001) (finding that a stipulation between parties
will not resolve an ownership dispute if all parties with an
ownership interest have not received notice and an opportunity to
participate); see also Dillon, Read & Co. v. United States,
875 F.2d
293, 300 (Fed. Cir. 1989) (“The parties are free to stipulate to
whatever facts they wish, except they may not stipulate to facts
known to be fictitious. The trial court has a duty to reject
stipulations which are demonstrably false.”).
44
bylaws, articles, or rules and regulations, the
court shall award reasonable attorney fees,
costs, and costs of collection to the prevailing
party.
(Emphasis added.) Thus, under this statute, a prevailing party in a
CCIOA dispute is entitled to attorney fees. See Hallmark Bldg. Co.
v. Westland Meadows Owners Ass’n, Inc., 983 P.2d 170, 174 (Colo.
App. 1999).
¶ 80 Both in the trial court and on appeal, Perfect Place argued that
the garage was not properly subdivided under the provisions of
CCIOA and, thus, that Semler never received valid title to the
parking spaces. Semler was required, therefore, to defend his title
under CCIOA. Because we conclude that the garage was properly
subdivided under § 38-33.3-213, we award Semler reasonable
attorney fees as the prevailing party. Id. (holding that a prevailing
party in a case involving both CCIOA claims and other statutory
claims for relief was entitled to attorney fees under
§ 38-33.3-123(1)). The case is remanded to determine and award
Semler his reasonable trial and appellate attorney fees. See C.A.R.
39.1.
45
VI. Conclusion
¶ 81 We affirm the trial court’s judgment quieting title to spaces C
and D in Semler. We reverse the trial court’s judgment adjusting
the boundaries of spaces D and E. We remand the case for further
proceedings under C.R.C.P. 105 with respect to space E and direct
the trial court to return the boundaries of spaces D and E to their
historical dimensions. We also direct the trial court on remand to
determine and award Semler his reasonable trial and appellate
attorney fees.
JUDGE ROMÁN and JUDGE LICHTENSTEIN concur.
46
APPENDIX 1
C’s Chain of Title
March 31, 2000 March 1, 2002
1940 Blake Quail Street Co. John Watson
Street Corp. Spaces C,D,E Space C
For Value As
Quitclaim Deed
reformed for $0
- - - - = Court
Reformation
Unless
otherwise
noted, dates
reflect the date July 26, 2004
the deed was
Aspen Equest.
recorded, not
the date the Space C
deed was Warranty Deed
Sept. 15, 2006
executed. For Value Corey Salankey
Space C
Oct. 19, 2007 Special Warranty
Public Trustee For Value
Space C
Certificate of
Purchase
(foreclosure)
Jan. 30, 2008 Jan. 30, 2008
Parker Selmer Parker Selmer
Redemption of Deed from
Foreclosure Redemption
Space C Space C
For Value
March 31, 2000
Deeds Outside of C’s July 26, 2004
Quail Street Co. Chain of title Aspen Equest.
Spaces C,D,E Space C
For Value Warranty Deed
For Value
June 14, 2011
Perfect Place
Space C Oct. 21, 2013
Quitclaim Deed (Executed 8/24/12)
Parker Semler Oct. 12, 2006
for $10
Shanoah Blake.
Space C
Deed in Lieu of Space C
Foreclosure For Special Warranty
Value and a Deed
Quitclaim Deed For Value
For $10
June 5, 2013
Perfect Place
Space C
Quitclaim Deed
for $10
A shaded space indicates an invalid
conveyance
APPENDIX 2
D’s Chain of Title
March 31, 2000
Quail Street Co. March 1, 2002
1940 Blake John Watson
Spaces C, D,
Street Corp. Space D
and E Quitclaim Deed
For Value As
reformed for $0
- - - - = Court
Reformation
July 26, 2004
Unless Aspen Equest.
otherwise Space D
noted, dates Warranty Deed
reflect the date For Value
the deed was
recorded, not
the date the
deed was
executed.
Oct. 21, 2013
(executed August
Oct. 12, 2006 24, 2012)
Shanoah Blake. Parker Semler
Space D Space D
Special Warranty Deed in Lieu of
Deed Foreclosure For
For Value Value and a
Quitclaim Deed
For $10
March 31, 2000 Deeds Outside of D’s Jay Weinberg
Quail Street Co. Chain of title Note: No prior deed in
Spaces C, D, the record conveys him
and E ownership.
For Value
June 14, 2011
Perfect Place
Space D March 26, 2009
Quitclaim Deed March 31, 2009
(executed 3/13) (executed 3/13)
for $10 Trend Investments
NewTown Ten
Space E Space D
(crossed out D and Special Warranty Deed
handwrote E) For $10
Quitclaim $10
June 5, 2013
Perfect Place
Space D
Quitclaim Deed
for $10 March 26, 2009
March 13, 2009 (Executed 3/13)
Perfect Place NewTown Ten
Space D and/or E Space D
Quitclaim Deed Special Warranty Deed
For $10 For Value
A shaded space indicates an invalid
conveyance
