Frisco Lot v. Giberson Preserve

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          December 12, 2024

                               

No. 22CA2219, Frisco Lot v. Giberson Preserve — Real Property
— Common Interest Communities — Common Interest
Ownership Act; Colorado Rules of Appellate Procedure — Briefs
in Cases Involving Multiple Appellants and Appellees

     In this property dispute, a division of the court of appeals sets

forth, as a matter of first impression, the test to determine whether

a subdivision created before the enactment of the Colorado

Common Interest Ownership Act (CCIOA) qualifies as a

common-interest community. Drawing from Evergreen Highlands

Ass’n v. West, 

 (Colo. 2003), and the Restatement

(Third) of Property: Servitudes (Am. L. Inst. 2000), the division

concludes that a pre-CCIOA common-interest community exists

when individual properties are burdened with a servitude that

imposes an obligation to either (1) pay for the use of or contribute to

the maintenance towards commonly held or enjoyed property or
(2) pay dues or assessments to an association that provides a

service or enforces a servitude on commonly held or enjoyed

property.


     Additionally, the division concludes that under C.A.R. 28(h), a

party may not both file a separate brief and incorporate by reference

the brief of another party. Such a violation of Rule 28(h) may result

in the striking of any improperly incorporated argument.
COLORADO COURT OF APPEALS                                       

Court of Appeals No. 22CA2219
Summit County District Court No. 19CV30037
Honorable Karen A. Romeo, Judge


Frisco Lot 3 LLC, a Colorado limited liability company; Frisco Lot 4 LLC, a
Colorado limited liability company; and the Jeffery W. Sandri Revocable Trust,

Plaintiffs-Appellants and Cross-Appellees,

v.

Giberson Limited Partnership, LLLP, a Colorado limited liability limited
partnership; Giberson Preserve Homeowners Association, Inc., a Colorado
nonprofit corporation; Mark Timberlake, Board Member; Chad G. Asarch,
Board Member; and Gary Giberson, Board Member,

Defendants-Appellees and Cross-Appellants,

and

Gary Giberson; Gloria Giberson; Daniel J. Ferrari; and Colorado Open Lands, a
Colorado nonprofit organization, f/k/a Continental Divide Land Trust,

Defendants-Appellees.


         JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
              AND CASE REMANDED WITH DIRECTIONS

                                 Division VII
                           Opinion by JUDGE KUHN
                        Gomez and Richman*, JJ., concur

                         Announced December 12, 2024


Ciancio Ciancio Brown, P.C., Marc J. Kaplan, Denver, Colorado, for
Plaintiffs-Appellants and Cross-Appellees
Anderson Notarianni McMahon LLC, Joshua D. McMahon, Denver, Colorado,
for Defendant-Appellee and Cross-Appellant Giberson Limited Partnership,
LLLP

Hall Booth Smith, P.C., Elizabeth C. Moran, Bradley N. Shefrin, Greenwood
Village, Colorado, for Defendants-Appellees and Cross-Appellants Giberson
Preserve Homeowners Association, Inc., Chad G. Asarch, Mark Timberlake, and
Gary Giberson

Foster Graham Milstein & Calisher LLP, Michael G. Milstein, Steven J.
Wienczkowski, Denver, Colorado, for Defendants-Appellees Gary Giberson and
Gloria Giberson

Daniel J. Ferrari, Pro Se

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Bill E. Kyriagis, Nicholas
Gunther, Denver, Colorado, for Defendant-Appellee Colorado Open Lands

Conservation Law, P.C., Jessica E. Jay, Evergreen, Colorado, for Amici Curiae
Land Trust Alliance, Keep it Colorado, Great Outdoors Colorado, Aspen Valley
Land Trust, Colorado Cattlemen’s Agricultural Land Trust, Colorado
Headwaters Land Trust, Colorado West Land Trust, Crested Butte Land Trust,
Estes Valley Land Trust, Montezuma Land Conservancy, and Palmer Land
Conservancy


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1    In this real property appeal, we consider whether a 1989

 “Planned Unit Development Designation” and Plat created a

 common-interest community before the enactment of the Colorado

 Common Interest Ownership Act (CCIOA). Drawing from Evergreen

 Highlands Ass’n v. West, 

 (Colo. 2003), and the

 Restatement (Third) of Property: Servitudes (Am. L. Inst. 2000), we

 hold that a pre-CCIOA common-interest community exists when:

 (1) individual properties are (2) properly burdened with a servitude

 that imposes an obligation to either (a) pay for the use of or

 contribute to the maintenance of commonly held or enjoyed

 property or (b) pay dues or assessments to an association that

 provides a service or enforces a servitude on commonly held or

 enjoyed property. We then determine that the original owners failed

 to create a common-interest community. Consequently, we

 conclude that later lot owners are not subject to a subsequently

 created homeowners’ association (HOA).

¶2    Additionally, we hold that under C.A.R. 28(h), a party may not

 both file a separate brief and incorporate by reference the brief of

 another party. Such a violation of Rule 28(h) may result in the

 striking of any improperly incorporated argument.


                                    1
¶3    Finally, as described fully below, the parties raise various

 challenges to the trial court’s (1) denial of a motion to dismiss;

 (2) grant of summary judgment; and (3) correction of a mistake in

 the judgment. The parties also challenge (4) the effect of the trial

 management order along with the court order permitting counsel to

 withdraw and (5) the court’s application of trust law to this dispute.

 We affirm in part, reverse in part, and remand with directions.

               I.   Background and Procedural History

¶4    This property dispute traces its origins to 1909 when the

 Giberson family received a 188-acre tract of land in Summit County

 under the Homestead Act. Eighty years later, Charles Howard

 Giberson and Lura Belle Giberson (collectively, Giberson) executed

 the “Planned Unit Development Designation” (PUD). The PUD

 subdivided their land into thirteen residential lots and a large open

 space known as the Giberson Preserve. Giberson submitted the

 PUD and the subdivision Plat1 to the county, and the Summit




 1 A plat is “a map describing a piece of land and its features, such

 as boundaries, lots, roads, and easements.” Black’s Law Dictionary
 1391 (12th ed. 2024).

                                    2
 County Board of County Commissioners (BOCC) approved it in

 1989. It was promptly recorded.

¶5    About ten years later, Giberson executed a “Deed of

 Conservation Easement” granting the Continental Divide Land

 Trust an easement over land known as the conservation property.

 The land trust subsequently merged with Colorado Open Lands

 (COOL), a defendant-appellee. The conservation easement

 encumbered the open space with the intent of perpetually

 preserving its “agricultural character, wildlife habitat, open space

 and scenic qualities.” After Charles Giberson passed away,

 Giberson Limited Partnership (GLP), a defendant-appellee and

 cross-appellant, took over his duties as the grantor of the

 conservation property.

¶6    In 2006, Daniel J. Ferrari, also a defendant-appellee,

 cross-claimant, and cross-appellee, became the first nonfamily

 member to purchase one of the residential lots. While conducting

 his prepurchase due diligence on the lot, he discovered the PUD

 and a set of unrecorded draft covenants but did not find an existing

 HOA. So Ferrari purchased Lot 8 and built a home, believing that it

 was not within a common-interest community. He was the first to


                                   3
 build a home on any of the thirteen residential lots. Approximately

 two years later, Jeffery Sandri acquired Lots 3, 4, and 9. On

 Sandri’s behalf, the lots are held by plaintiffs-appellants and

 cross-appellees Frisco Lot 3 LLC, Frisco Lot 4 LLC, and the Jeffery

 W. Sandri Revocable Trust (collectively, Sandri).

¶7    One of the main disputes in this case involves the proper

 formation and authority of an HOA. In 2008, the Summit County

 planning department wrote to the property owners within the

 Giberson Preserve, notifying them that although the PUD required

 an HOA, one had never been created and was long overdue.

 Despite this notice, the lot owners did not form an association. In

 2015, Chad G. Asarch — another lot owner, defendant-appellee,

 and cross-appellant — filed articles of incorporation for the

 “Giberson Preserve Homeowners Association,” but the association

 neither held formal meetings nor recorded any covenants.

¶8    Finally, in February 2016, Summit County sent a notice of

 zoning violation to GLP because no one had yet submitted the

 required HOA covenants. The letter said that the county would

 hold all building permits in abeyance until the lot owners executed

 and recorded the HOA covenants. By late 2016, a group consisting


                                   4
  of most of the lot owners had drafted and signed a set of covenants

  (2017 covenants). But Sandri and Ferrari were not part of this

  group. After the other lot owners submitted the signed covenants to

  the county, the BOCC held a hearing to approve the covenants and

  amend the PUD.

¶9        Sandri and Ferrari opposed the 2017 covenants on multiple

  grounds. As relevant to this appeal, they argued that the covenants

  (1) prevented lot owners from leasing, subleasing, or renting their

  lot or home for a period of less than six months without HOA

  approval, effectively restricting the use of the lots for vacation

  rentals; (2) gave the HOA exclusive architectural control over any

  permanent improvements to landscaping, sheds, or homes; and

  (3) allowed the HOA to assess a tap fee and usage fee for water

  against the various lots. It is uncontested that the 2017 covenants

  were drafted and recorded after Sandri and Ferrari acquired their

  lots.

¶ 10      Sandri initiated this lawsuit in March 2019, and the parties

  have since engaged in protracted litigation and motions practice.

  The initial defendants included GLP and defendant-appellee and

  cross-appellant Giberson Preserve Homeowners Association as well


                                      5
  as its board members Asarch, Mark Timberlake, and Gary Giberson

  (collectively, GHOA). In January 2021, after nearly two years of

  litigation, the court disposed of the parties’ cross-motions for partial

  summary judgment, encompassing part of Sandri’s claims, Ferrari’s

  counterclaims and cross-claims, and GHOA’s counterclaims and

  cross-claims. The court held that a common-interest community

  was not created in 1989.

¶ 11   Based on that holding, and as relevant to this appeal, the trial

  court resolved the following claims brought by the various parties.

  For Sandri’s and Ferrari’s separately brought claims, the court

  found that (1) their lots were not part of a common-interest

  community; (2) the Plat and PUD did not constitute a declaration

  that created a common-interest community; (3) the HOA did not

  govern their lots; and (4) the 2017 covenants did not encumber

  their lots. The court also determined that under the application of

  trust law to the conservation easement, (5) Sandri’s guests, invitees,

  permittees, heirs, successors, and assigns were entitled to use the

  conservation property for noncommercial recreational purposes,

  and an amendment to the easement that would have altered their

  rights was not effective. Additionally, the court denied GHOA’s


                                     6
  separate claims that (6) Sandri’s and Ferrari’s lots are within the

  HOA and governed by the HOA.

¶ 12   Subsequently, COOL joined the litigation and filed a motion to

  reconsider the court’s application of trust law, instead of property

  law, to the amendment of the conservation easement. In March

  2021, the trial court reconsidered its summary judgment order,

  applied both legal frameworks, and reached the same conclusion as

  it had originally.

¶ 13   Within a week of the order on the motion for reconsideration,

  and approximately three weeks before the scheduled April bench

  trial, Sandri’s counsel filed an unopposed motion to withdraw,

  prompting a flurry of urgent motions. The trial court granted the

  withdrawal and then continued the bench trial. The bench trial

  then took place in multiple parts over the course of approximately a

  year, beginning in June 2021 and concluding with the trial court’s

  August 2022 “Findings of Fact and Conclusions of Law” (the trial

  order).

¶ 14   In November 2021, during the pendency of the bench trial, the

  trial court granted in part and denied in part defendants’ C.R.C.P.

  41(b)(1) motions, disposing of a portion of Sandri’s and Ferrari’s


                                    7
  claims. The next day, it denied another homeowner’s2 motion to

  dismiss for lack of subject matter jurisdiction, which argued that

  the case could only be brought under C.R.C.P. 106.

¶ 15   Finally, after the court issued the trial order, Sandri

  interpreted that order as having moved the location of a private

  access easement road. So he blocked the road. This prompted

  GHOA to file an emergency motion under C.R.C.P. 60(a) asking the

  court to correct the trial order to state that it had not moved the

  road. The trial court granted the Rule 60 motion, and about a

  month later, the parties appealed.

¶ 16   GLP and GHOA appeal the trial court’s grant of summary

  judgment against them and challenge its subject matter

  jurisdiction. GLP also appeals the trial court’s application of trust

  law and ruling that the conservation easement was not properly

  amended. COOL does not take a position regarding the outcome of

  these issues but challenges the trial court’s application of trust law




  2 Kathryn Flores filed a C.R.C.P. 41(b)(1) motion to dismiss in the

  trial court. Flores is another homeowner who was involved in the
  underlying litigation, but she is not a party to this appeal.

                                     8
  to the conservation easement. Neither Ferrari nor Sandri oppose

  the relief requested by COOL.

               II.   Improper Incorporation by Reference

¶ 17   Before turning to the merits of this appeal, we first address

  GLP’s use of C.A.R. 28(h) to incorporate GHOA’s arguments by

  reference. In its opening-answer brief, GLP addresses the issues on

  appeal in a little over two pages. Instead of making its own

  arguments, it purports to “incorporate[] by reference” four of

  GHOA’s arguments from its opening-answer brief “[p]ursuant to

  C.A.R. 28(h).” GLP’s attempt to incorporate another party’s briefing,

  despite filing its own brief, is improper and represents a

  misunderstanding of Rule 28(h).

            In cases involving more than one appellant or
            appellee, including consolidated cases, any
            number of appellants or appellees may join in
            a single brief, and any party may adopt by
            reference any part of another’s brief, but a
            party may not both file a separate brief and
            incorporate by reference the brief of another
            party.

  C.A.R. 28(h) (emphasis added).

¶ 18   GLP relies on the phrase from Rule 28(h) stating that “any

  party may adopt by reference any part of another’s brief.” But in



                                    9
  doing so, it skips the modifying provision following that phrase,

  which explicitly prohibits that practice when a party has filed a

  separate brief.

¶ 19   Other divisions of this court have held that incorporation by

  reference to briefing in the district court is improper. People v.

  Phipps, 

, ¶ 11; Castillo v. Koppes-Conway, 

 (Colo. App. 2006). This is partially because attempting to

  incorporate material by reference “‘makes a mockery’ of the rules

  that govern the length of briefs.” Castillo, 

 (quoting

  Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 

, 1167 n.4 (11th Cir. 2004)).

¶ 20   That is exactly what GLP’s actions do here. GLP was allowed

  9,500 words for its opening-answer brief. See C.A.R 28.1(g)(1). Its

  opening-answer brief contains 8,846 words. But the sections of

  GHOA’s briefing that it purports to incorporate by reference

  constitute approximately 3,000 additional words. This leaves GLP’s

  total word count at just under 12,000 words — more than 2,000

  words over the limit permitted by the rules.

¶ 21   GLP’s brief does not comply with Rule 28(h) because GLP both

  filed a separate brief and incorporated by reference the brief of


                                    10
  another party. An “appellate court may dismiss an appeal or other

  appellate proceeding or impose other sanctions it deems

  appropriate, including attorney fees, for the failure to comply with

  any of its orders or these appellate rules.” C.A.R. 38(a). We

  therefore strike the following sections of GLP’s opening-answer brief

  that incorporate by reference: answer sections I.B., II.B., III., and

  cross-appeal section III.B.

                                III.   Analysis

¶ 22   GLP and GHOA argue that the trial court erred by

  (1) concluding that the PUD didn’t create a common-interest

  community and (2) failing to dismiss the case for lack of subject

  matter jurisdiction. Sandri contends that the trial court erred by

  (3) granting GHOA’s Rule 60 motion3 and (4) issuing its April 2021

  pretrial orders. GLP and COOL also contend that the trial court

  erred by (5) misapplying the law governing the conservation

  easement.

¶ 23   We note that the trial court’s summary judgment order,

  Rule 41 order, trial order, and Rule 60 order are thorough, detailed,




  3 GHOA brought the Rule 60 motion, which was joined by GLP.



                                       11
  and well reasoned. We affirm the trial court’s Rule 60 order, but, as

  a consequence, we reverse that portion of the judgment concerning

  Sandri’s claim against GLP that the 2017 covenants impermissibly

  expanded the scope of an easement across his property. We affirm

  the trial court’s orders in all other regards.

              A.   Whether a Common-Interest Community
                   Was Created by the PUD and Plat in 1989

¶ 24   We first turn to GLP and GHOA’s cross-appeal in which they

  jointly contend that the trial court erred by finding that the PUD

  and Plat didn’t create a common-interest community in 1989. We

  disagree.

              1.    Applicable Law and Standard of Review

¶ 25   The Colorado legislature enacted CCIOA, sections 38-33.3-101

  to -401, C.R.S. 2024, in 1992. This act established a

  comprehensive statutory scheme for common-interest communities,

  particularly HOAs. CCIOA automatically applies in its entirety to

  common-interest communities “created” in the state after its

  effective date of July 1, 1992. Accetta v. Brooks Towers Residences

  Condo. Ass’n, 

; § 38-33.3-115, C.R.S. 2024. It

  generally does not apply to communities created before that date.



                                     12
  Accetta, ¶ 30; § 38-33.3-117(3), C.R.S. 2024. CCIOA’s provisions

  containing the necessary prerequisites to properly form a

  common-interest community are not retroactive. See

  §§ 38-33.3-117, -201, C.R.S. 2024.

¶ 26   We review summary judgment orders de novo, “recognizing

  that summary judgment is appropriate only where there are no

  disputed issues of material fact and the moving party is entitled to

  judgment as a matter of law.” Beeftu v. Creekside Ventures LLC, 

 (Colo. App. 2001). We also review de novo the

  interpretation of a written document as a question of law. GMAC

  Mortg. Corp. v. PWI Grp., 

 (Colo. App. 2006).

                 2.   The PUD and Plat Did Not Create
                       a Common-Interest Community

¶ 27   GLP and GHOA argue that the PUD and Plat created a

  common-interest community in 1989, years before CCIOA went into

  effect. The PUD set forth a water system, access roads, and

  maintenance responsibilities. It explicitly said that “a homeowners

  association” would be responsible for necessary maintenance. The

  PUD also envisioned the later filing of HOA covenants prior to final

  approval of the PUD, which would, among other things, “delineate



                                   13
  the responsibilities for the maintenance of roads.” However,

  Giberson never recorded the anticipated HOA covenants, and

  Summit County approved and recorded the PUD and the final Plat

  without receiving them.

¶ 28   The trial court analyzed this issue under both the common law

  and CCIOA but rightly recognized that CCIOA was not controlling.

  On appeal, all parties agree that CCIOA does not control the

  creation of a common-interest community here.

¶ 29   The parties do not cite, nor are we aware of, any controlling

  case law that explicitly sets forth the standard for creating a

  common law common-interest community. However, as the trial

  court noted, section 6 of the Restatement (Third) of Property:

  Servitudes provides a useful and persuasive overview of the general

  common law principles applicable to common-interest communities.

¶ 30   The Restatement defines a common-interest community as

             a real-estate development or neighborhood in
             which individually owned lots or units are
             burdened by a servitude that imposes an
             obligation that cannot be avoided by nonuse or
             withdrawal

             (a) to pay for the use of, or contribute to the
             maintenance of, property held or enjoyed in
             common by the individual owners, or


                                     14
               (b) to pay dues or assessments to an
               association that provides services or facilities
               to the common property or to the individually
               owned property, or that enforces other
               servitudes burdening the property in the
               development or neighborhood.

  

 § 6.2.

¶ 31   The Colorado Supreme Court has found the Restatement

  persuasive in analyzing similar common-interest community issues,

  see Evergreen Highlands, 

, albeit in the context of

  CCIOA communities. We do the same here. We hold that — as

  described by the Restatement’s definition — a pre-CCIOA

  common-interest community exists when (1) individual properties

  are (2) properly burdened with a servitude that imposes an

  obligation to either (a) pay for the use of or contribute to the

  maintenance of commonly held or enjoyed property or (b) pay dues

  or assessments to an association that provides a service or enforces

  a servitude on commonly held or enjoyed property.

¶ 32   This test aligns with other related principles described by the

  Restatement. See Restatement (Third) of Prop.: Servitudes § 6.1

  cmt. a (“Common-interest communities are usually created by a

  declaration of servitudes that, at a minimum, imposes use



                                      15
  restrictions and assessment obligations and provides for creation of

  an association.”); Restatement (Third) of Prop.: Servitudes § 6.5

  cmt. a (“By definition, a common-interest community covered by

  this Chapter is one in which the individual properties are burdened

  by a servitude requiring that the property owner either contribute to

  the support of common property or pay dues or assessments to a

  property-owners association.”).4

¶ 33   Having established a test to determine whether documents

  create a pre-CCIOA common-interest community, we now apply it to

  the issue before us.

¶ 34   The PUD satisfied the first factor of the test by subdividing the

  original land into individual properties. The PUD created thirteen

  residential lots, a road tract, and three agricultural or open spaces.

  However, it fails to satisfy the second factor. By its plain language,

  the PUD does not burden the lots with a servitude that imposes an


  4 This test also aligns with the supreme court’s test to determine

  what documentation is necessary to create a common-interest
  community under CCIOA. See Pulte Home Corp. v. Countryside
  Cmty. Ass’n, 

 (“[F]or one or more documents to
  create a common-interest community (and hence amount to a
  declaration), they must, at a minimum, (1) establish an obligation
  to pay for various expenses associated with common property and
  (2) attach that obligation to individually owned property.”).

                                     16
  obligation to either pay for or maintain commonly held or enjoyed

  property or to pay assessments to an HOA.

¶ 35   It’s true that the PUD defines some services that will be

  provided to the thirteen residential lots, such as water and a private

  road. And it goes as far as stating that an HOA will provide the

  water services and road maintenance in the future.

¶ 36   It’s also true that the PUD envisioned the eventual creation of

  that HOA. The PUD stated that “[Giberson] must submit covenants

  for the homeowners association for review by the County. The

  covenants shall delineate the responsibilities for the maintenance of

  roads, sewer systems, water systems, and landscaping in common

  areas as an obligation of the homeowners association.” But it’s

  clear from the record in this case that Giberson never completed the

  key step of timely submitting and recording HOA covenants, though

  the record doesn’t reveal the reason for that omission. Regardless,

  the PUD is missing a key feature required by the second factor: It

  does not explicitly provide any means for an assessment against the

  lots or require that the property owners contribute to the support of

  common property.




                                    17
¶ 37   GHOA and GLP ask us to look beyond the plain language of

  the PUD and conclude that the obligation to pay assessments is

  implied, and therefore, a common-interest community was also

  created by implication. We decline the invitation.

¶ 38   GHOA and GLP argue that Evergreen Highlands controls this

  matter and that an implied obligation must exist to avoid placing

  the HOA “in the untenable position of being obligated to maintain

  facilities and infrastructure without any viable economic means by

  which to do so.” 

. However, as the trial court rightly

  noted, Evergreen Highlands is factually distinguishable from the

  matter before us.

¶ 39   In that case, the supreme court noted that “[a]t the time [the

  homeowner] purchased his lot in 1986, the [HOA] declarations

  made clear that a homeowners association existed, it owned and

  maintained the park area, and it had the power to impose annual

  membership or use fees on lot owners.” 

. The supreme

  court found that these facts were sufficient to create a

  common-interest community within the meaning of CCIOA by

  implication. In reaching this conclusion, the court quoted the

  Restatement:


                                    18
            An implied obligation may . . . be found where
            the declaration expressly creates an
            association for the purpose of managing
            common property or enforcing use restrictions
            and design controls, but fails to include a
            mechanism for providing the funds necessary
            to carry out its functions. When such an
            implied obligation is established, the lots are a
            common-interest community within the
            meaning of this Chapter.

  

 (quoting Restatement (Third) of Prop.: Servitudes § 6.2 cmt. a).

¶ 40   In Evergreen Highlands, then, the supreme court answered

  two questions. First, it decided whether common-interest

  communities have the implied power to levy assessments for

  maintaining common property. Then it decided whether the

  explicitly created pre-CCIOA HOA had sufficient features from

  which the court could consider the subdivision an implied

  common-interest community under CCIOA. GHOA’s argument

  collapses the reasoning from these two questions. The Evergreen

  Highlands court didn’t conclude that the subdivision was a

  common-interest community because the HOA had a need to levy

  assessments. The court concluded that the HOA could levy

  assessments because the subdivision already met the definition of a




                                    19
  common-interest community, and common-interest communities

  have the power to levy assessments.

¶ 41   But here, no such HOA or common-interest community

  existed when Ferrari or Sandri purchased their lots. And while we

  “must construe covenants as a whole based upon their underlying

  purpose, [we] will enforce a covenant as written if clear on its face.”

  Evergreen Highlands, 

. “Ambiguities will be resolved in

  favor of the free and unrestricted use of property.” 

 Applying

  those principles here, we see no such indication of a pre-existing

  HOA. While the PUD envisioned one, no HOA had been created, no

  covenants had been recorded, and no association had been

  maintaining the common areas.

¶ 42   GLP and GHOA also rely on DeJean v. Grosz, 

, in which another division of this court analyzed a similar

  issue, though guided by CCIOA instead of the common law. In that

  case, a declaration notified potential purchasers that they were

  automatically members of an HOA. The division concluded that the

  HOA could “be formed, even after a delay, by another homeowner.”

  

 But unlike the matter before us, the covenants in DeJean

  “subject[ed] the owners of both units to automatic membership in


                                    20
  the [HOA] [and were] intended to run with the land.” Id. at ¶ 36.

  The division therefore concluded that “the DeJeans had notice and

  consented to be members of the [HOA] when they acquired title” to

  their property. Id.

¶ 43   Here, neither Sandri nor Ferrari took title to the land with

  notice that they would automatically be members of a

  common-interest community. To the contrary, the trial court found

  that Ferrari — the first person to build a residence on the lots —

  conducted extensive due diligence, discovered the PUD, and

  believed that his lot was not within a common-interest community.

  The trial court also found that, in fact, the PUD didn’t describe in

  any manner which lots would be members of any HOA or how such

  an HOA would be funded.

¶ 44   While Evergreen Highlands and DeJean inform our analysis,

  the matter before us is the most similar to the facts in McMullin v.

  Hauer, 

. There, a land dispute concerned the

  ownership of seventeen acres of “common open space” in a

  purported common-interest community. Id. at ¶ 1. Two developers

  recorded a final plat intending to develop a rural subdivision. Id.




                                    21
¶ 45   “[T]he recorded final plat included a map of the seventeen

  acres of common open space, and notices on the final plat provided

  that a ‘private access road,’ domestic wells to service the

  subdivision, and ‘common ownership and maintenance’ would be

  the responsibility of the ‘Home Owner’s Association.’” Id. at ¶ 5.

  The final plat also stated that covenants accompanying the

  subdivision “are filed in the office of the Rio Blanco County Clerk

  and Recorder in Book __ Page __.” Id. However, no such covenants

  were filed. Id. Seven of the lots were sold to three different parties,

  and subsequently, those lot owners sued to quiet title to the

  properties and the open space. Id.

¶ 46   The McMullin court determined that under CCIOA, “these

  documents, even taken together, do not expressly obligate the lot

  owners to pay for expenses associated with the common property,

  let alone attach that obligation to individually owned property.” Id.

  at ¶ 20. The court went on to draw a clear distinction between the

  case before it and the facts of Evergreen Highlands: “[Q]uite unlike

  the situation in this case, the declarations in Evergreen Highlands

  ‘made clear that a homeowners association existed, it owned and

  maintained the park area, and it had the power to impose annual


                                    22
  membership or use fees on lot owners.’” McMullin, ¶ 23 (quoting

  Evergreen Highlands, 

). The court determined that this

  sharp contrast showed why the policy concerns necessitating an

  assessment obligation by implication in Evergreen Highlands were

  not present in McMullin. Id. at ¶ 24.

¶ 47   The court then held that

             the recorded plat, the deeds, and the
             subdivision agreement, taken together, do not
             amount to a declaration sufficient under
             CCIOA to establish a common-interest
             community. Collectively, these documents do
             not obligate homeowners to pay expenses
             related to commonly owned space, do not
             expressly create a homeowners’ association,
             and lack too many statutorily prescribed
             components. Moreover, the primary concern
             animating our decision in Evergreen
             Highlands — i.e., saving a homeowners’
             association from the “untenable position of
             being obligated to maintain facilities and
             infrastructure without any viable economic
             means by which to do so” — is not present
             here.

  McMullin, ¶ 29 (quoting Evergreen Highlands, 

).

¶ 48   It’s true that McMullin was decided under CCIOA. But the

  legal principles animating it are similar to, if not the same as, those

  underlying the common law. And it wrestled with nearly identical

  facts. Here, the recorded PUD and Plat included a map outlining


                                    23
  common-ownership space and described road maintenance, the

  water and sewer system, and common area landscaping as the

  responsibility of an HOA. See id. at ¶ 19. And while HOA

  covenants were envisioned, they were never recorded.

¶ 49   Additionally, the supreme court addressed the underlying

  policy concerns that motivated the implied assessment obligation in

  Evergreen Highlands. See McMullin, ¶ 24. Compared to McMullin,

  there was an existing HOA in Evergreen Highlands that owned and

  maintained the park area and had the power to impose annual

  membership or use fees. See id. at ¶ 23. However, “[b]y contrast,

  the recorded documents [in McMullin] did not expressly create a

  homeowners’ association.” Id. at ¶ 25.

¶ 50   This lack of an existing HOA is a key distinction between

  Evergreen Highlands and this case. And like McMullin indicates,

  “the primary concern animating [the] decision in Evergreen

  Highlands — i.e., saving [an existing] homeowners’ association from

  the ‘untenable position of being obligated to maintain facilities and

  infrastructure without any viable economic means by which to do

  so’ — is not present here.” McMullin, ¶ 29.




                                    24
¶ 51   Accordingly, McMullin guides and reinforces our determination

  that, taken together, the recorded PUD and Plat do not expressly

  obligate the lot owners to pay for the use of or contribute to the

  maintenance of commonly held or enjoyed property or to pay dues

  or assessments to an association that provides a service or enforces

  a servitude on commonly held or enjoyed property.

¶ 52   Further, the PUD and Plat do not create an assessment by

  implication. The documents did not create an HOA (and

  consequently there isn’t a pre-existing association that would

  otherwise lie bereft of the ability to maintain the common areas,

  despite its obligations to do so).

¶ 53   Thus, the trial court did not err by concluding that the PUD

  and Plat did not create a common-interest community and,

  therefore, that the 2017 covenants are not binding on Sandri and

  Ferrari.




                                       25
                    B.    Subject Matter Jurisdiction

¶ 54   GHOA also challenges the trial court’s decision for lack of

  subject matter jurisdiction.5 It argues that the BOCC’s hearing and

  approval of a minor amendment to the PUD was a quasi-judicial

  decision that required the lot owners to challenge encumbrances on

  their lots through an action under C.R.C.P. 106(a)(4) brought within

  twenty-eight days of the BOCC’s decision. We disagree.

                         1.   Standard of Review

¶ 55   Rule 106(a)(4) “provides for review of quasi-judicial decisions

  made by a governmental body or officer in a civil matter where the

  law otherwise provides no plain, speedy, and adequate remedy.”

  Brown v. Walker Com., Inc., 

, ¶ 1. Rule 106(a)(4) is the

  exclusive remedy for reviewing quasi-judicial decisions. JJR 1, LLC

  v. Mt. Crested Butte, 

 (Colo. App. 2007).

¶ 56   The review contemplated by this rule is narrow: “Courts

  simply review the lower body or officer’s decision to determine



  5 In its briefing, GHOA asserts that the trial court erred by denying

  Flores’s Rule 41(b)(1) motion to dismiss. GHOA did not join in
  Flores’s motion below, so that motion does not preserve the
  argument for GHOA on appeal. But because a party can challenge
  the court’s subject matter jurisdiction at any time, Brooks v.
  Raemisch, 

, ¶ 10, we review the issue regardless.

                                    26
  whether it ‘has exceeded its jurisdiction or abused its

  discretion . . . .’” Walker Com., ¶ 27 (quoting C.R.C.P. 106(a)(4)). A

  Rule 106(a)(4) complaint must be filed within twenty-eight days of

  the governmental body or officer’s final decision. C.R.C.P. 106(b).

¶ 57   A court’s lack of subject matter jurisdiction may not be waived

  and can be raised at any time in a proceeding. Brooks v. Raemisch,

  

, ¶ 10. We review the court’s determination whether it

  has subject matter jurisdiction de novo. See City of Boulder v. Pub.

  Serv. Co. of Colo., 

. Similarly, we review de novo

  the court’s determination whether a plaintiff’s complaint sought

  review of a governmental body’s quasi-judicial functions or its

  quasi-legislative actions. Farmers Water Dev. Co. v. Colo. Water

  Conservation Bd., 

, ¶ 14.

            2.   Rule 106(a)(4) Doesn’t Govern This Dispute

¶ 58   GHOA argues that the trial court lacked subject matter

  jurisdiction because Rule 106(a)(4) provided the exclusive remedy

  for the lot owners to challenge the encumbrance of their lots.

¶ 59   On August 8, 2017, the BOCC approved a minor amendment

  to the PUD. The amendment dealt only with a single provision,

  section B.5, “Maintenance Responsibilities.” It amended that


                                    27
  provision to include, in major part, language to reflect that “the

  County has reviewed and approved the . . . covenants [of the

  HOA] . . . delineating maintenance responsibilities,” instead of the

  previous language, which stated that “the County shall approve the

  provisions of the covenants concerning maintenance

  responsibilities.” (Emphasis added.)

¶ 60   The trial court found that the BOCC’s decision was not

  quasi-judicial and, therefore, that the court had jurisdiction

  because “the only action the BOCC took on August 8, 2017, was to

  approve a very minor modification of [section B.5] of the Original

  1989 Plat.” The court noted that there was no evidence that the

  BOCC had deliberated about the covenants as a whole, taken

  evidence, made findings on the record, or done anything other than

  indicate that the minor amendment satisfied the outstanding

  requirement of the PUD.

¶ 61   Most importantly, the court concluded that the BOCC’s

  approval of the amendment did not determine the covenants’

  validity, delineate the rights of the parties to this appeal, or resolve

  the enforceability of the 2017 covenants on the lots at issue. To the

  contrary, the record shows that the BOCC was aware of the ongoing


                                     28
  dispute between GLP and Sandri and Ferrari; it explicitly said that

  enforcement of the 2017 covenants “will be a private matter to be

  decided amongst the lot owners.”

¶ 62   We agree with the trial court’s conclusion. In reviewing this

  matter, “our inquiry must focus on the nature of the governmental

  decision and the process by which that decision is reached.”

  Widder v. Durango Sch. Dist. No. 9-R, 

 (Colo. 2004).

  And “‘[q]uasi-judicial’ decision making, as its name connotes, bears

  similarities to the adjudicatory function performed by courts.” 

  The question before the BOCC was an entirely separate matter from

  the dispute between the parties to determine the enforceability of

  the covenants in this litigation, and the minor amendment bore no

  similarity to a court proceeding to determine the rights of the

  parties. Thus, the amendment was not quasi-judicial. And even if

  consideration of the amendment were quasi-judicial, that wouldn’t

  have brought the completely separate issues involved in this

  litigation under the purview of Rule 106(a)(4).

¶ 63   We discern no error in the trial court denying the motion to

  dismiss for lack of subject matter jurisdiction.




                                     29
                         C.    The Rule 60 Order

¶ 64    Sandri contends that the trial court erred by granting GHOA’s

  Rule 60 motion. We disagree. However, we do agree with an

  underlying aspect of Sandri’s argument. The factual and legal

  determinations of GLP’s and Sandri’s respective rights as to an

  easement across one of Sandri’s lots are erroneous and require

  reversal. We first address the Rule 60 order and the location of the

  easement before turning to its exclusivity.

              1.    Applicable Law and Standard of Review

¶ 65    “Clerical mistakes in judgments, orders, or other parts of the

  record[, including] errors . . . arising from oversight or omission,

  may be corrected by the court at any time of its own initiative or on

  the motion of any party and after such notice, if any, as the court

  orders.” C.R.C.P. 60(a). We review a trial court’s decision

  concerning the correction of clerical errors under Rule 60(a) for an

  abuse of discretion. Reisbeck, LLC v. Levis, 

. A

  trial court abuses its discretion when its decision is manifestly

  arbitrary, unreasonable, or unfair, or when it misapplies the law.

  

                                     30
¶ 66   “When a court enters a judgment following a bench trial, that

  judgment presents a mixed question of law and fact.” State Farm

  Mut. Auto. Ins. Co. v. Johnson, 

. We apply a mixed

  standard of review to such questions. We review the trial court’s

  legal conclusions, including its application of the governing legal

  standards, de novo, and we will not disturb its factual findings

  unless they are clearly erroneous and not supported by the record.

  See Jehly v. Brown, 

. If the evidence is

  conflicting, we may not substitute our own conclusions for those of

  the trial court merely because there may be credible evidence

  supporting a different result. Lawry v. Palm, 

  (Colo. App. 2008).

                       2.   Additional Background

¶ 67   At the center of this issue is the location of the private access

  easement serving Lots 7, 8, 9, and 10 (the PAE)6 as well as Sandri’s




  6 We note that under the PUD and Plat, there are two private access

  easements. The one running to Lots 11, 12, and 13 is not at issue
  on appeal. Thus, any reference to PAE solely encompasses the
  private access easement running to Lots 7, 8, 9, and 10.


                                    31
  and GLP’s respective rights under the easement and their ability to

  control access to the PAE.

¶ 68   The PUD and Plat set forth the location of three roads within

  the Gibson Preserve, one of which is the PAE. Sandri raised two

  claims in relation to the PAE. First, Sandri argued that GLP

  impermissibly expanded the geographic footprint of the PAE,

  doubling its original width, when the road was graded and slightly

  relocated. Second, Sandri argued that GLP, through the 2017

  covenants, impermissibly expanded the scope of the easement.

¶ 69   We also note that prior to or at the bench trial, no party

  claimed, nor does the record contain any indication, that the PAE

  was moved from its historical location as depicted in the PUD and

  Plat to another area within the development.

               3.    The Rule 60 Order Was Not in Error

¶ 70   After conducting the bench trial, the trial court rejected

  Sandri’s first claim and found that the PAE’s width was not

  expanded beyond twenty feet. The trial court then addressed the

  second claim about the exclusivity of the PAE. In doing so, it

  provided “a crude sketch of the property in question” and “added its

  own markings showing the approximate location of pertinent


                                    32
  landmarks and easements.” One of these markings was a green

  line that ran from the end of Giberson Road across the top of Lots

  7, 8, 9, and 10. The trial court’s sketch is below, labeled as

  Figure 1.




                                 Figure 1

¶ 71   Figure 1 was the foundation of the Rule 60 motion. After

  Sandri interpreted the green line as relocating the PAE and blocked

  the road, GHOA filed its Rule 60 motion.

¶ 72   That motion argued that the court had mistakenly labeled the

  PAE on the map: Instead of running down between Lots 8 and 9

  before passing through Lot 9, the green line showed the PAE as




                                    33
running continually along top of the lots to the border of Tract C.7

The trial court agreed, granted the motion, and clarified that it did

not intend to move the location of the PAE.

          The Court now realizes the Court’s green line,
          intended to depict the approximate location of
          the “Private Access Easement (serving lots 7, 8,
          9, 10)” is not in the correct location at Lots 9
          and 10. Instead, the Court’s green line
          traversing across the tops of Lots 9 and 10
          now has the PAE going through the
          Conservation Easement Tract C property;
          when in reality . . . the PAE traverses
          downward between the borders of Lots 8 and
          9, before running horizontally near the bottom
          of Lot 9 where it ends at Lot 10.

          The Court wholly rejects [Sandri’s] argument
          that [the trial order] determined that the PAE
          had been relocated and the diagram in
          question supports that finding.

          The Court re-iterates that the location of the
          PAE is precisely where it is depicted in the
          Plat, PUD and Declaration.

The Plat contains a map of the PAE, as referred to in the court’s

trial order. A portion of that map, labeled as Figure 2, appears

below.8



7 Tract C consists of the private open space as depicted in Figure 1

above and Figure 2 below.

8 For clarity we have added a label for “Tract C” to Figure 2.



                                  34
                                Figure 2
¶ 73   Figure 2 clearly shows that the PAE runs across the border

  between Lots 7 and 8 and Tract C, before turning down the borders

  of Lots 8 and 9 and crossing the bottom of Lot 9 to reach Lot 10.

  This map directly supports the trial court’s description of where the

  PAE is located in its Rule 60 order and supports its finding that the

  PAE was not moved outside of Lot 9.

¶ 74   Nonetheless, Sandri argues — without any supporting citation

  to the record — that “[t]he Trial Order repeatedly said that the PAE

  no longer crossed Lot 9 and was wholly located on Tract C,

  immediately north of Lot 9, but still providing access to Lot 10.”

  (Emphasis added.) We see no such language in the trial order. In




                                    35
  fact, the trial order does not say that the PAE was relocated in any

  fashion.9

¶ 75   Moreover, the trial court was clear in its Rule 60 order that it

  had not intended to move the PAE and that the PAE was not moved

  from its approximate historical location depicted in Figure 2. As the

  trial court explicitly ruled, “[I]ts depiction of the PAE . . . in the [trial

  order]10 was merely a demonstrative depiction and was not intended

  by the Court to re-draw the actual location of the PAE where it

  traverses through Lots 9 and 10.”

¶ 76   “Appellate courts generally defer to a lower court’s

  construction of its own rulings.” People in Interest of J.C., 

. We give that deference to the trial court’s ruling that

  it did not move the PAE. Moreover, the record supports this ruling.

  Comparing the highlighted map in the trial order with the map in




  9 We note that the trial order does reference the PAE being moved,

  but the references are to the alleged increase in the PAE’s width and
  in the context of Sandri’s claim that the PAE was enlarged. Sandri
  does not claim that this is the language that supports his
  contention.

  10 Represented in Figure 1 in this opinion.



                                       36
  the Plat, it is clear that the trial court simply made a mistake and

  drew a portion of the green line in the wrong place.

¶ 77   Rule 60(a) “functions as a safety valve and allows the district

  court to correct, at any time, an honestly mistaken judgment that

  does not represent the understanding and expectations of the court

  and the parties.” Levis, ¶ 8. We discern no error in the trial court’s

  use of this rule to correct the improperly labeled diagram in its trial

  order.

               4.    The Underlying Findings of Fact and
                       Conclusions of Law Are in Error

¶ 78   Sandri also argues that the trial court’s diagram was not the

  only basis for concluding that the PAE was moved and that other

  substantive parts of the judgment demonstrate that conclusion.

  Sandri asserts that references to GLP holding the servient estate

  and the lot owners holding the dominant estate show that either the

  trial court meant to move the PAE or that it introduced a

  substantive error into its order that should have been remedied

  under C.R.C.P. 59, not Rule 60. We agree with Sandri that some of

  the language within the corrected trial order isn’t consistent with

  some of the trial court’s findings regarding one of Sandri’s claims.



                                    37
¶ 79   After trial, the trial order resolved “all remaining portions of

  Sandri’s [C.R.C.P.] 105 claim.” Specifically, Sandri had argued that

  the 2017 covenants impermissibly expanded the scope of the PAE to

  provide access not only to Lots 7 through 10 but also to the open

  space. In resolving that claim, the trial court included the following

  in the trial order:

       •     “To reiterate, the Court now concludes that [GLP] owns

             the title to the land upon which the [PAE] sit[s].”

       •     “[GLP] can grant additional easement rights across its

             own property.”

       •     “As the servient estate holder, [GLP] may make any use of

             its own land.”

       •     “As of the date of trial, [GLP] continues to be the record

             owner of the servient estate upon which the [PAE] sit[s].

             Thus, as it stands and with regard to the [PAE], [GLP]

             (and not [Giberson]) owns the servient estate and the lot

             owners . . . hold the dominant estates.”

       •     “As the servient estate holder, [GLP] is most certainly

             permitted to make any use of [its] property that [it] see[s]




                                    38
            fit, including granting other easements and access

            rights.”

       •    “[B]ecause the [PAE] is not an ‘exclusive’ easement, [GLP],

            as the servient estate holder, may continue to utilize its

            property just as any property owner may do subject to

            the restriction that it may not unreasonably interfere

            with the already established easement rights of the

            dominant estate holders.”

¶ 80   These statements are only true for the portion of the PAE that

  runs across Tract C, approximately one quarter of its total area, as

  depicted in Figure 2. This portion of the PAE is located on Tract C

  along the border of Lots 7 and 8. Thus, the trial court is correct

  that, as to the portion of the PAE running across Tract C, GLP holds

  the servient estate, while the lot owners — who use the easement to

  access their land — hold the dominant estate.

¶ 81   However, as to the rest of the PAE — specifically the portions

  depicted as running across Lots 7, 8, and 9 — the underlying lot

  owners own the land, not GLP. Figure 3, below, contains

  highlighting that shows the portion of the PAE that runs exclusively

  over Sandri’s Lot 9.


                                    39
                                 Figure 3
¶ 82   The court’s trial order does not make a distinction between

  these separate property interests within the PAE.

            Where, as here, an easement is not exclusive,
            both the owner of the dominant estate and the
            owner of the servient estate have a right to use
            the property. Therefore, the parties’ interests
            must be balanced. The owner of the servient
            estate has a “qualified right to put his or her
            property to any lawful use for which it may be
            adapted” but “cannot unreasonably interfere
            with the superior right of the person
            possessing the easement.” By contrast, the
            owner of the dominant estate may use the
            easement in any manner “reasonably
            necessary to permit [its] full use,” but cannot
            unreasonably interfere with the enjoyment of
            the servient estate.

  Amada Fam. Ltd. P’ship v. Pomeroy, 

 (quoting

  Lazy Dog Ranch v. Telluray Ranch Corp., 

 (Colo.

  App. 1996)).


                                   40
¶ 83    As the trial court’s Rule 60 order correctly states, the PAE —

  as depicted in Figure 3 — runs across Sandri’s Lot 9. But as to this

  lot, no portion of the PAE is on land owned by GLP. Thus, contrary

  to the trial order, Sandri’s land is burdened by the PAE, rendering

  Lot 9 the servient estate. See Salazar v. Terry, 

 (Colo. 1996) (“The burdened estate is servient to the

  dominant estate which benefits from the easement.”).

¶ 84    Therefore, the trial court’s conclusion that GLP holds title to

  the land underlying the PAE and is the servient estate — beyond

  the portion that runs across GLP’s Tract C — is not supported by

  the record or the court’s conclusion in its Rule 60 order. Thus, that

  conclusion also cannot support its judgment in favor of GLP. There

  is an obvious conflict between the trial court’s Rule 60 order, which

  reiterates where the PAE lies, and the underlying trial order’s

  delineation of property rights. And when a trial court’s orders

  conflict, we may remand for the court to resolve the issue. See

  Trinity Broad. of Denver, Inc. v. City of Westminster, 

 (Colo. 1993) (determining that two trial court orders conflicted

  and remanding for further proceeding necessary to resolve the

  conflict).


                                     41
¶ 85   We therefore reverse and remand this claim to the trial court

  for further findings of fact and conclusions of law as to the portion

  of Sandri’s quiet title claim under C.R.C.P. 105 against GLP alleging

  that GLP inappropriately expanded the PAE access on Lot 9.

                   D.   The Orders Regarding Attorney
                        Withdrawal and Pretrial Motions

¶ 86   Sandri next contends that the trial court erred when it issued

  several orders in April 2021 that (1) allowed Sandri’s counsel to

  withdraw early and (2) addressed various pretrial motions. The first

  issue is unpreserved, and we disagree with the second.

                             1.   Preservation

¶ 87   GLP and GHOA argue that Sandri failed to preserve his

  argument that the trial court erred by allowing his counsel to

  withdraw because Sandri didn’t object to the withdrawal before the

  fact. In response, Sandri contends that he preserved this issue in

  his motion for a continuance, filed after the withdrawal. In it,

  Sandri argued that the trial court abused its discretion by

  shortening the fourteen-day timeframe provided in C.R.C.P. 121,

  section 1-1(2)(c). We are not persuaded and conclude that Sandri

  failed to timely preserve this issue.



                                     42
                   2.    Additional Facts and Analysis

¶ 88   On March 23, 2021, Sandri’s prior counsel moved to

  withdraw, citing irreconcilable differences. That same day, Sandri

  filed a pro se request for a continuance to obtain new counsel, in

  which he lambasted his counsel’s decision-making and handling of

  the case.11 The trial court shortened the deadlines to respond to

  both the withdrawal and continuance until March 30. The trial

  court conducted a hearing on March 31 and granted the motion to

  withdraw on April 3, three days earlier than the fourteen-day-

  objection deadline under Rule 121, section 1-1(2)(c). The trial court

  also denied Sandri’s pro se continuance motion, saying that it “d[id]

  not find good cause to continue trial” because Sandri “made the

  decision to fire [his] attorneys primarily due to this potential

  conflict, despite the fact trial [was] a mere three weeks away.”

  However, roughly two weeks later, the court relented and granted

  Sandri’s new counsel a two-month continuance.


  11 Sandri’s motion also contained his email communications with

  counsel demonstrating extensive disagreements regarding damages
  and highlighting his counsel’s belief that his damages request
  lacked the documentation to support his claims. The refusal or
  inability to provide documentary support for his damages appears
  to be a key reason for Sandri’s split with his former counsel.

                                     43
¶ 89   It’s undisputed that Sandri didn’t object to his counsel’s

  withdrawal by the deadline set by the court (or even by the

  fourteen-day deadline under the rules). To the contrary, in this

  timeframe he expressed his deep dissatisfaction with his prior

  counsel and referred to them as “my former attorneys.” On this

  point, after the March 31 hearing, the trial court found that Sandri

  had “fired” his attorneys.12

¶ 90   It’s true that Sandri objected after-the-fact in his second

  continuance motion, arguing that the court erred by reducing the

  rule’s fourteen-day timeframe to eleven days. But by the time he

  objected, the court had already permitted the withdrawal, and he

  was represented by new counsel.




  12 This situation is similar to the facts that a division of this court

  encountered in Federal Land Bank of Wichita v. B.A.V., Inc., 

 (Colo. App. 1991), where the “defendants invited
  the court’s actions in permitting their attorney to withdraw.” The
  B.A.V. defendants did not object to their attorney’s withdrawal and
  claimed that they were dissatisfied with their attorney’s services.
  

. Because of this, the division concluded that the
  “defendants [could ]not, on appeal, successfully assert that the trial
  court abused its discretion in permitting the attorney to withdraw.”
  

                                     44
¶ 91   By failing to timely object to the motion to withdraw, Sandri

  failed to preserve this issue.13 See Ortiz v. Progressive Direct Ins.

  Co., 

, ¶ 39 (determining an issue unpreserved when a

  party failed to timely raise the issue to the trial court). And though

  he was pro se, he was still obligated to adhere to the rules of

  procedure applicable to attorneys, see Yadon v. Southward, 

 (Colo. App. 2002), and the court could not act as an

  advocate on his behalf, see Johnson v. McGrath, 

, ¶ 10.

¶ 92   In civil cases, we generally do not review issues that are

  insufficiently preserved. Ortiz, ¶ 40. Thus, we decline to address

  this issue further.

¶ 93   However, Sandri’s contention that the trial court erred in its

  disposition of other pretrial motions is preserved for review, and we

  address it below.




  13 Even if Sandri had preserved this issue, there is no indication

  that he was prejudiced or that his former counsel abandoned his
  case prior to the court’s discovery deadline. The record
  demonstrates that, despite irreconcilable differences, former
  counsel was engaged in motions practice until March 30, 2021, the
  day before the trial court’s deadline.

                                     45
                    3.    The April 2021 Orders Were
                          Not an Abuse of Discretion

¶ 94   Sandri contends that the trial court abused its discretion

  through the combined effect of its April 2021 orders. He argues

  that he faced “extreme prejudice” from “the sum of the [Trial]

  Court’s Orders in April 2021” and that these orders prevented him

  from receiving a fair trial. We review a trial court’s rulings on

  discovery issues for an abuse of discretion. Gateway Logistics, Inc.

  v. Smay, 

.

¶ 95   It appears from the record that the trial court issued at least

  fifteen orders in April 2021, ranging from granting telephonic

  testimony to denying a C.R.C.P. 41 motion to dismiss Sandri’s

  claims.14 Of these fifteen orders, Sandri presents an argument on

  two, the aforementioned withdrawal order and the court’s “Order




  14 Though Sandri generically challenges the April 2021 orders, we

  presume he does not intend to challenge the trial court’s order
  refusing to dismiss his claims.


                                    46
  Granting Plaintiffs’ Emergency Motion to Continue with

  [C]onditions.”15

¶ 96   The order granting the emergency motion to continue noted

  that “all pre-trial deadlines and orders remain in effect.” In

  addition, the trial court ordered that, “discovery is closed, no new

  experts may be disclosed, and no new damages or claims may be

  asserted.”

¶ 97   The background to the discovery cutoff dispute is that Sandri

  had added $6.3 million in claimed damages through a C.R.C.P.

  26(a)(1)(C) disclosure on January 28, 2021. However, he lacked

  supporting documentation for these damages, and the trial court

  ordered him to disclose and meet his discovery obligations by

  March 15, 2021. When he failed to do so, the trial court struck the

  $6.3 million subset of his claimed damages.

¶ 98   Sandri seems to argue that he lost out on the ability to present

  evidence of these damages. But the record doesn’t support this


  15 We only consider these two orders because although Sandri

  refers generally to “the April 2021 orders,” he presents no argument
  as to how any other orders caused or contributed to his asserted
  prejudice. And “[w]e don’t consider undeveloped and unsupported
  arguments.” Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC,
  

, ¶ 41 n.12, aff’d, 

.

                                    47
  argument. It’s true that the trial court originally struck eight of

  Sandri’s nine damages categories.16 But then Sandri filed a motion

  to reconsider in which he disclaimed $3,945,350.30 of the

  previously requested damages. The trial court granted his motion

  and found that Sandri disclosed sufficient documents to support a

  claim on four of the eight previously stricken damages categories.

¶ 99    Regardless, “[a] court has discretion to impose a reasonable

  discovery deadline in managing its docket.” Leaf v. Beihoffer, 

. We see no abuse of discretion in these rulings.

¶ 100   Additionally, even if we did see any abuse of discretion in the

  rulings, any resulting error is harmless as a matter of law. The trial

  court ultimately found after trial that Sandri failed to prove any of

  the essential elements of the claim underlying his damages. See id.

  at ¶ 12 (“If a plaintiff fails to establish any one of [a tort’s] elements,

  any errors related to other elements are necessarily harmless

  because the plaintiff cannot prevail in any event.”); Schlesselman v.

  Gouge, 

 (Colo. 1967) (refusing to consider



  16 At that point, the case was over two years old, and Sandri had

  already waited eighteen months before disclosing over $6.3 million
  in new, unsupported damages.

                                      48
  contentions of error related to damages where the jury returned a

  verdict in favor of the defendant on “the basic issue of liability”).

  Because Sandri didn’t prevail on his underlying claim — and fails to

  challenge that loss on appeal — his professed inability to seek any

  portions of his damages is necessarily harmless.

¶ 101     The remainder of Sandri’s contentions consists of complaints

  over the way his former counsel handled the case. For example, he

  argues that his former counsel should have added different claims.

  But as the trial court noted, at that point it was too late for Sandri

  to “reimagine his case after two years of pre-trial litigation,” and he

  had already amended his complaint twice. Regardless, none of

  Sandri’s complaints about his former counsel demonstrate an

  abuse of discretion by the trial court. Sandri and his former

  counsel shaped the litigation. We see no indication that the trial

  court did anything other than appropriately manage an unwieldy

  case.

¶ 102     Thus, we discern no error in the trial court’s grant of the

  continuance with conditions.




                                       49
               E.     The Conservation Easement Amendment

¶ 103   We now turn to GLP’s contention that the trial court erred in

  its interpretation of the conservation easement.17 We disagree.

          1.        Additional Background and Procedural History

¶ 104   In mid-2018, GLP amended the conservation easement,

  changing the provisions governing the rights conveyed and

  reserved. Sandri and Ferrari objected, claiming that the change —

  in violation of the conservation easement’s amendment provision —

  reduced their access to the private recreation area from a right to a

  mere privilege, revocable at GLP’s discretion.

¶ 105   The trial court initially analyzed this issue during the

  summary judgment proceedings and, applying trust law, found that

  the amendment was improper. Soon after, COOL joined the

  ongoing litigation and filed a motion to reconsider, arguing that

  property law controls this issue. After reviewing the matter, the

  trial court issued its reconsideration order, applied both trust and



  17 From its briefing, it is unclear if GLP also intended to separately

  argue that the trial court reversibly erred in ruling that Ferrari has
  a right to use a trail within the conservation easement. To the
  extent that this is a separate issue, GLP develops no argument on
  this point, so we decline to consider it separately further. See
  Woodbridge, ¶ 41 n.12.

                                      50
  property law to the conservation easement, and came to the same

  conclusion as it had in its summary judgment order.

¶ 106   On appeal, GLP challenges the trial court’s conclusions and,

  alongside COOL, argues that property law, not trust law, applies to

  this issue.

                2.   Standard of Review and Applicable Law

¶ 107   We review the court’s judgment after a bench trial as a mixed

  question of law and fact. State Farm Mut. Auto. Ins., ¶ 12. We

  review the trial court’s legal conclusions de novo and its factual

  findings for clear error. See Jehly, ¶ 8. The interpretation of a

  written document also presents a question of law that we review de

  novo. GMAC Mortg., 

.

¶ 108   A conservation easement in gross shall not be deemed

  personal in nature and shall constitute an interest in real property

  notwithstanding that it may be negative in character.

  § 38-30.5-103(2), C.R.S. 2024. The extent of an expressly created

  easement, including the limits of its authorized use, is determined

  by interpreting the conveyance instrument. Lazy Dog, 965 P.2d at

  1235; see also Restatement (Third) of Prop.: Servitudes § 4.1(1)(a).

  “Where the instrument is a deed, we construe the instrument as we


                                    51
  would any deed. Our paramount concern in construing a deed is to

  ascertain the intentions of the parties.” Lazy Dog, 965 P.2d at

  1235.18

             3.    The Conservation Easement Amendment
                               Was Improper

¶ 109   GLP argues that the court erred by concluding that the “Deed

  of Conservation Easement” was “intended to benefit the ‘Members of

  [Giberson]’s family and those who live in the thirteen (13) platted

  lots.” Further, it contends that the conservation easement does not

  grant rights to the lot owners, but only reserves rights for Giberson

  and, in turn, itself. Therefore, it argues that the trial court

  incorrectly concluded that the amended conservation easement

  couldn’t modify Sandri’s and Ferrari’s rights to use the conservation


  18 GLP, COOL, and the amicus curiae urge us to declare that all

  amendments to conservation easements are governed by property
  law. But we need not reach that sweeping question. The parties
  variously agree or don’t contest that property law should apply to
  our review of the conservation easement amendment at issue here,
  and we agree. “Courts exist for the purpose of deciding live
  disputes involving ‘“flesh-and-blood” legal problems with data
  “relevant and adequate to an informed judgment.”’” People v.
  Lybarger, 

 (Colo. 1985) (quoting New York v.
  Ferber, 

 (1982)). “A court, therefore, should
  avoid an advisory opinion on an abstract proposition of law.” City &
  Cnty. of Denver v. Consol. Ditches Co. of Dist. No. 2, 

  (Colo. 1991).

                                     52
  property. Instead, GLP says, they have just a mere license or

  privilege to use the land. We disagree.

¶ 110   We first turn to the plain language of the conservation

  easement and section 17.D, its amendment provision.

             If the circumstances arise under which an
             amendment to or modification of this Deed of
             Conservation Easement would be appropriate,
             [Giberson] and [COOL] are free to jointly
             amend this Deed of Conservation Easement;
             provided that no amendment shall be allowed
             that will affect the qualifications of this Deed of
             Conservation Easement under any applicable
             laws. Any amendment must be consistent with
             the conservation purposes of this Deed of
             Conservation Easement and may not affect its
             perpetual duration.

  (Emphasis added.)

¶ 111   The trial court rightly determined that, by its plain language,

  the conservation easement prevents any amendment that would be

  inconsistent with its purposes. The statement of purpose provides

  the following:

             The purpose of this Deed of Conservation
             Easement is to preserve and protect in
             perpetuity the agricultural character, wildlife
             habitat, private open space and scenic
             qualities of the Conservation Property and to
             prevent uses of the Conservation Property that
             will significantly impair or interfere with the
             Conservation Values of the Conservation


                                     53
             Property. It is also the purpose of this Deed of
             Conservation Easement to allow the agricultural
             and private recreational uses of the
             Conservation Property, which are consistent
             with the foregoing goals, to continue in
             perpetuity, and as is set forth herein.

  (Emphasis added.)

¶ 112   Additionally, the conservation easement expressly reserves the

  following rights in perpetuity:

             Passive Recreational Uses. Members of
             [Giberson]’s family and those who live in the
             thirteen (13) platted lots shown on the Giberson
             Preserve Plat recorded at Reception No.
             375700 on September 1, 1989 in the Records
             of the Summit County, Colorado Clerk and
             Recorder and their guests, permit[t]ees (those
             given permission) and invitees may use the
             Conservation Property for non-commercial
             recreational usage deemed appropriate by
             [Giberson] including but not limited to
             walking, hiking, non-motorized mountain
             biking, skiing, snowshoeing, hunting, fishing,
             horseback riding, snowmobiling, camping,
             nature studies and picnicking.

  (Second emphasis added.)

¶ 113   “Our goal in interpreting a recorded instrument is to ascertain

  and give effect to the intentions of the party or parties who created

  the instrument.” 802 E. Cooper, LLC v. Z-GKids, LLC, 

,




                                    54
  ¶ 21 (citing Lazy Dog, 965 P.2d at 1235). “We ascertain the parties’

  intent primarily from the language of the instrument itself.” Id.

¶ 114   A plain reading of the conservation easement demonstrates

  that it reserves, in perpetuity, the right of those who live on the

  thirteen lots — such as Sandri and Ferrari — to use the

  conservation easement area for passive recreation. The purpose of

  the conservation easement is, in part, to provide for this private

  recreational use. See Pulte Home Corp. v. Countryside Cmty. Ass’n,

  

 (In interpreting a recorded instrument, “we give

  words and phrases their common meanings and will enforce such

  documents as written if their meaning is clear.” And “[l]ike

  contracts, we construe them as a whole, seeking to harmonize and

  to give effect to all provisions so that none will be rendered

  meaningless.”).

¶ 115   The amendment to the conservation easement violated this

  plain purpose. It provided the following:

             Passive Recreational Uses. Members of [GLP]
             and their families and guests are permitted to
             use the Conservation Property as determined
             by [GLP] in accordance with this Deed of
             Conservation Easement. Those who live in the
             thirteen (13) platted lots shown on the
             Giberson Preserve Plat . . . and their


                                     55
             accompanied family members, guests and
             tenants are permitted, at the discretion of [GLP],
             to use the Conservation Property for
             non-commercial recreational usage which may
             include walking, hiking, non-motorized biking,
             cross country skiing, snowshoeing, sledding,
             nature studies, and picnics. Allowed activities
             are restricted to designated areas.

  (Second emphasis added.)

¶ 116   The trial court succinctly summarized the differences between

  the original conservation easement and the amended version.

             [T]he Amended Conservation Easement
             attempts to limit not just uses but users. It
             only allows the family, guests, and tenants of
             lot owners to use the Conservation Property “at
             the discretion of [GLP].” . . . Under the
             Amended Conservation Easement, [GLP] now
             has “the right to honor existing access or other
             easements across the Conservation Property.”

¶ 117   Under the amended conservation easement, GLP, at its

  pleasure, could prohibit Sandri or Ferrari from accessing the

  conservation easement property, despite the fact that the easement

  prohibited changing this aspect of their right to use the property.

  This amendment conflicted with the conservation purposes of the




                                    56
  conservation easement and, as to Sandri and Ferrari, affected its

  perpetual duration.19

¶ 118   Thus, the amended conservation easement was improper, and

  the lot owners retain the rights “that the Grantor ‘expressly

  reserved in perpetuity’ in the original Conservation Easement.” We

  discern no error in the trial court’s conclusion to that effect.

                            IV.   Attorney Fees

¶ 119   The parties each make a request for attorney fees, which we

  address in turn.

¶ 120   Sandri requests fees under Rule 105; C.R.C.P. 57; section

  38-33.3-123(1)(c), C.R.S. 2024; section 38-35-109(3), C.R.S. 2024;

  and the 2017 covenants. We deny his requests under Rule 105,

  Rule 57, and section 38-35-109(3) as meritless. As for his request

  under section 38-33.3-123(1)(c), CCIOA’s fee-shifting provision

  applies retroactively to “all common interest communities created

  within this state before July 1, 1992, with respect to events and


  19 For example, after GLP and COOL executed the amended

  conservation easement, GLP closed a trail near Ferrari’s property.
  The trial court found that GLP impermissibly “closed this particular
  trail in an effort to specifically prevent Ferrari from accessing the
  Open Space.” To the extent that GLP challenges this finding, we
  discern no error.

                                     57
  circumstances occurring on or after July 1, 1992.”

  § 38-33.3-117(1). As determined above, no common-interest

  community was created, and no party brought a claim to enforce

  CCIOA’s provisions. Thus, CCIOA’s fee-shifting provision does not

  apply here.

¶ 121   However, the 2017 covenants contain a fee shifting provision,

  section 17.4, which specifies that in any dispute between GHOA

  and a lot owner, the prevailing party “shall be awarded all fees,

  costs and expenses incurred by it in such proceeding, including

  reasonable attorneys’ fees.” GHOA sued Sandri under these

  covenants in a clear dispute over their applicability. GHOA

  appealed its trial court loss, and Sandri and Ferrari have

  successfully defended on appeal their win that the 2017 covenants

  are not binding on them.

¶ 122   Likewise, the conservation easement, section 7.b, specifies

  that if a party commences legal action to enforce the easement, “any

  reasonable costs incurred by the prevailing party in such action in

  connection with enforcing the terms of this Deed of Conservation

  Easement, including, without limitation, any reasonable costs of

  suit and reasonable attorneys’ fees, shall be borne by the


                                    58
  non-prevailing party.” Ferrari has successfully defended his win

  against GLP on the conservation easement claim.

¶ 123   We note that both fee-shifting provisions apply only to a

  prevailing party in a proceeding. This matter features multiple

  parties and a myriad of claims, some of which were not part of this

  appeal. “[W]here either party could arguably be considered the

  ‘prevailing party,’ the trial court is in the best position to evaluate

  the relative strengths and weaknesses of each party’s claims, the

  significance of each party’s successes in the context of the overall

  litigation, and the time devoted to each claim.” Archer v. Farmer

  Bros. Co., 

 (Colo. 2004); see also Wheeler v. T.L.

  Roofing, Inc., 

 (Colo. App. 2003) (holding that trial

  court is the in best position to determine which party ultimately

  prevailed for purposes of awarding attorney’s fees). At the time of

  appeal, the trial court had not determined the prevailing parties.

  The trial court is authorized to award Sandri and Ferrari their

  reasonable attorney fees incurred on appeal from GLP and GHOA if

  it determines that they are prevailing parties in the litigation.




                                     59
                             V.   Disposition

¶ 124   The trial court’s Rule 60 order is affirmed. That portion of the

  trial order concerning Sandri’s claim against GLP that the 2017

  covenants impermissibly expanded the scope of the private access

  easement to provide access not only to Lots 7 through 10 but also

  to the open space is reversed. The remainder of the judgment is

  affirmed.

¶ 125   The matter is remanded to the trial court (1) for further

  findings of fact and conclusions of law on Sandri’s claim that GLP

  improperly expanded access to the PAE; (2) to award appellate fees

  due to Sandri and Ferrari, if it determines they are prevailing

  parties, from GHOA and GLP; and (3) for any further proceedings

  consistent with this opinion that the trial court determines are

  necessary.

        JUDGE GOMEZ and JUDGE RICHMAN concur.




                                    60