Thomas Seaman v. Heather Gardens Association

     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 28, 2023

                               

No. 22CA2103 & 23CA0372, Seaman v. Heather Gardens —
Real Property — Colorado Common Interest Ownership Act —
Association Records

     In this civil action involving the Colorado Common Interest

Ownership Act (CCIOA), §§ 38-33.3-101 to -402, C.R.S. 2023, a

division of the court of appeals determines, as a matter of first

impression, that a unit owners’ association’s bank statements may

constitute “[d]etailed records of receipts and expenditures affecting

the operation and administration of the association” under section

38-33.3-317(1)(a), C.R.S. 2023. The division further concludes that

records generated by a third party, such as a bank, may be records

an association “maintain[s]” and must make available for

examination and copying by a unit owner under section 38-33.3-

317(2). Thus, the division concludes that the district court erred by
dismissing plaintiff’s amended complaint on the basis that bank

statements cannot, as a matter of law, be records that a unit

owners’ association is required to maintain and produce for

inspection to a unit owner under section 38-33.3-317(1)(a) and (2).

Consequently, the division reverses the judgment dismissing

plaintiff’s complaint and remands for further proceedings.
COLORADO COURT OF APPEALS                                    

Court of Appeals Nos. 22CA2103 & 23CA0372
Arapahoe County District Court No. 22CV31637
Honorable Elizabeth Beebe Volz, Judge


Thomas Seaman,

Plaintiff-Appellant,

v.

Heather Gardens Association, a Colorado nonprofit corporation,

Defendant-Appellee.


                JUDGMENT AND ORDER REVERSED AND CASE
                     REMANDED WITH DIRECTIONS

                               Division VII
                        Opinion by JUDGE BROWN
                        Tow and Schock, JJ., concur

                       Announced December 28, 2023


Robinson Waters & O’Dorisio, P.C., Kimberly A. Bruetsch, Mike Lazar, Denver,
Colorado, for Plaintiff-Appellant

The Hustead Law Firm, Patrick Q. Hustead, Aaron M. Bell, Jason J. Patel,
Denver, Colorado, for Defendant-Appellee
¶1    The legislature enacted the Colorado Common Interest

 Ownership Act (CCIOA), §§ 38-33.3-101 to -402, C.R.S. 2023, in

 part to “establish a clear, comprehensive, and uniform framework

 for the creation and operation of common interest communities.”

 § 38-33.3-102(1)(a), C.R.S. 2023. Common interest communities

 are managed by unit owners’ associations organized under section

 38-33.3-301, C.R.S. 2023.

¶2    Section 38-33.3-317, C.R.S. 2023, provides that unit owners

 are entitled to reasonable access to information about the

 operation, administration, and finances of their unit owners’

 association. To that end, section 38-33.3-317(1) obligates an

 association to “maintain” eighteen categories of records — in

 addition to any records specifically defined in the association’s

 declaration or bylaws, or expressly required by section

 38-33.3-209.4(2), C.R.S. 2023 — “for purposes of document

 retention and production to owners.” § 38-33.3-317(1)(a)-(p).

¶3    Plaintiff, Thomas Seaman, appeals the district court’s order

 dismissing his complaint against defendant, Heather Gardens




                                   1
 Association (HGA).1 Seaman sought an injunction compelling HGA

 to make certain bank statements available to him for examination

 under CCIOA.2 He contends that the court erred by dismissing his

 complaint on the basis that section 38-33.3-317 does not require

 HGA to produce the bank statements.

¶4    Resolving Seaman’s contention requires us to determine, as a

 matter of first impression, whether bank statements may be

 “[d]etailed records of receipts and expenditures affecting the

 operation and administration of the association” under section

 38-33.3-317(1)(a). Based on the plain language of the statute, we

 conclude that bank statements may constitute such records. We

 further conclude that records generated by a third party, such as a

 bank, may be records an association “maintain[s]” and must make

 available for examination and copying by a unit owner under

 section 38-33.3-317(2)(a). Consequently, we conclude that the



 1 Our references to Seaman’s complaint are to his first amended

 complaint, which is the operative complaint.
 2 Seaman’s complaint also requested a penalty under section 38-

 33.3-317(4.5), C.R.S. 2023, which states that an association must
 allow inspection or copying of the applicable records within thirty
 days or be subject to penalties. That claim is not before us on
 appeal and should be addressed on remand.

                                   2
 district court erred by dismissing Seaman’s complaint under

 C.R.C.P. 12(b)(5). We reverse the judgment and remand for further

 proceedings.3

                 I.   Background and Procedural History

¶5    HGA is a nonprofit corporation that manages Heather

 Gardens, an age-restricted senior living community. The parties

 agree that HGA is subject to CCIOA and that Seaman is a property

 owner and resident of Heather Gardens. See § 38-33.3-103(3), (31),

 C.R.S. 2023.

¶6    According to Seaman’s complaint, in April 2020, HGA applied

 for a loan under the Paycheck Protection Program (PPP) and

 received funds in the amount of $1,085,800. It opened a new

 account at KeyBank to hold and manage the PPP funds. And in

 July 2021, it applied for and received forgiveness of the PPP loan.

¶7    In June 2022, Seaman requested copies of HGA’s records

 including, as relevant here, bank statements for the KeyBank

 account in which it held the PPP funds. HGA provided Seaman


 3 Because we reverse on this basis, we decline to address Seaman’s

 alternative argument that section 38-33.3-317(2) requires an
 association to produce “all records” it maintains, regardless of
 whether such records fall within a category listed in subsection (1).

                                   3
 with copies of balance sheets showing the PPP funds as an asset

 titled “Cash – Key Bank PPP Proceeds” with varying balances, but it

 declined to provide the bank statements, explaining that “[b]ank

 statements are not records of the association that must be kept or

 made available for inspection/copying by owners.”

¶8    In August, Seaman filed a complaint in the district court

 seeking an injunction requiring HGA to produce the requested bank

 statements. HGA moved to dismiss under C.R.C.P. 12(b)(5),

 arguing that section 38-33.3-317 does not require it to maintain or

 produce bank statements for inspection and copying. It further

 argued that the statute does not require it to maintain and make

 available records created by a third party, such as a bank.

¶9    The district court granted the motion to dismiss, concluding

 that bank statements “[c]learly” are not “[d]etailed records of

 receipts and expenditures affecting the operation and

 administration of the association” under section 38-33.3-317(1)(a)

 and are not otherwise listed among the categories of records an




                                    4
  association is required to maintain under subsection (1).4 The

  court acknowledged that the purpose of section 38-33.3-317 is “to

  provide owners with access to information about the operation of

  the association and how its funds are generated and spent,” but it

  reasoned that Seaman had received sufficient records from HGA

  “related to the receipt of PPP funds, the amount of the funds

  received, the accounts in which the funds were held and when

  those funds were transferred from one account to another,” and

  that HGA’s refusal to provide the bank statements did not “interfere

  with [Seaman’s] right to receive the relevant information.”

                              II.   Analysis

¶ 10   Seaman contends that the district court erred by concluding

  that bank statements are not, as a matter of law, “[d]etailed records

  of receipts and expenditures affecting the operation and

  administration of the association” under section 38-33.3-317(1)(a).


  4 The district court also concluded that the requested bank

  statements did not constitute “[f]inancial statements as described in
  section 7-136-106, C.R.S. [2023],” § 38-33.3-317(1)(g), or
  “[f]inancial records sufficiently detailed to enable the association to
  comply with section 38-33.3-316(8)[, C.R.S. 2023],” § 38-33.3-
  317(1)(j). It does not appear that Seaman ever argued that the
  requested bank statements meet either of these definitions, and he
  does not challenge that part of the court’s ruling on appeal.

                                     5
  We agree. We also conclude that, even though they are generated

  by a third party, bank statements may be “maintained by the

  association” such that they must be made available for examination

  and copying by a unit owner under section 38-33.3-317(2). Thus,

  we conclude that the court erred by dismissing Seaman’s complaint

  under C.R.C.P. 12(b)(5).

         A.   Standard of Review and Generally Applicable Law

¶ 11   We review de novo a district court’s judgment dismissing a

  complaint for failure to state a claim upon which relief can be

  granted under C.R.C.P. 12(b)(5). Nieto v. Clark’s Mkt., Inc., 

, ¶ 11. We accept as true the factual allegations in the complaint

  and, viewing them in the light most favorable to the plaintiff,

  determine whether the complaint states a plausible claim for relief.

  See id.; Warne v. Hall, 

.

¶ 12   We also review de novo issues of statutory construction. Nieto,

  ¶ 12. In doing so, our primary task is to give effect to the legislative

  intent as reflected in the plain and ordinary meanings of the words

  and phrases used. Carousel Farms Metro. Dist. v. Woodcrest Homes,

  Inc., 

. We read the statute in the context of the

  entire statutory scheme, giving consistent and sensible effect to all


                                     6
  its parts. Id.; see also §§ 2-4-101, -201, C.R.S. 2023; A.M. v. A.C.,

  

. And we avoid constructions that would render

  any words or phrases superfluous or lead to illogical or absurd

  results. Dep’t of Revenue v. Agilent Techs., Inc., 

.

  When the language of a statute is clear, we enforce it as written.

  Elder v. Williams, 

.

       B.    The Bank Statements May Be Detailed Records of Receipts
            and Expenditures Affecting the Operation and Administration
                                 of an Association

¶ 13        As noted, section 38-33.3-317(1) obligates an association to

  “maintain” eighteen categories of records “for purposes of document

  retention and production to owners.” § 38-33.3-317(1)(a)-(p).

  Under section 38-33.3-317(2), “all records maintained by the

  association must be available for examination and copying by a unit

  owner or the owner’s authorized agent” in accordance with

  prescribed procedures. Furthermore, “the association may not

  condition the production of records upon the statement of a proper

  purpose.” Id.

¶ 14        Seaman contends that bank statements fall into one of the

  categories of records an association is required by statute to

  maintain and make available to him as a unit owner: “[d]etailed


                                        7
  records of receipts and expenditures affecting the operation and

  administration of the association.” § 38-33.3-317(1)(a). Based on

  the statute’s plain language, we agree that bank statements may

  constitute such records.

¶ 15   The relevant terms are not defined in CCIOA. But because

  they are words in common usage and “people of ordinary

  intelligence needn’t guess at [their] meaning,” we consider their

  dictionary definitions. Butler v. Bd. of Cnty. Comm’rs, 

; see Broomfield Senior Living Owner, LLC v. R.G. Brinkmann

  Co., 

 (where a statute fails to define a term, we

  consider its common usage).

        A “record” is “the state or fact of being recorded” or

          “something that records.” Merriam-Webster Dictionary,

          https://perma.cc/3H6V-QUWY. To “record” means “to set

          down in writing” or “furnish written evidence of.” Id.; see

          Black’s Law Dictionary 1527 (11th ed. 2019) (A “record” is

          “[a] documentary account of past events” or “[i]nformation

          that is inscribed on a tangible medium or that, having been

          stored in an electronic or other medium, is retrievable in

          perceivable form.”).


                                    8
 “Detailed” means “marked by abundant detail or by

  thoroughness in treating small items or parts.”

  Merriam-Webster Dictionary, https://perma.cc/3QN2-

  QVFE.

 A “receipt” is “a writing acknowledging the receiving of

  goods or money,” “the act or process of receiving,” or

  “something received.” Merriam-Webster Dictionary,

  https://perma.cc/V287-RKCF; see Black’s Law Dictionary

  at 1521 (“Receipt” includes “[a] written acknowledgment

  that something has been received; esp., a piece of paper or

  an electronic notification that one has paid for something.”).

 “Expenditure” is defined as “the act or process of

  expending” or “something expended,” namely a

  “disbursement” or “expense.” Merriam-Webster Dictionary,

  https://perma.cc/3MNA-5FRQ. “Expending” is further

  defined as “to pay out” or “spend.” Merriam-Webster

  Dictionary, https://perma.cc/7JPM-BWER; see Black’s Law

  Dictionary at 723 (defining “expenditure” as “[t]he act or

  process of spending or using money, time, energy, etc.; esp.,

  the disbursement of funds” or as “[a] sum paid out”).

                            9
¶ 16   A bank statement is a “record,” in that it sets down in writing

  information about a bank account. It is a “detailed record” because

  it typically provides particulars about the account itself and any

  transactions occurring on the account — including the date,

  transaction type, and dollar amount, among other details. And it is

  a “detailed record of receipts and expenditures” to the extent it

  reflects any deposits (receipts of funds) into or withdrawals

  (expenditures of funds) from the account.5

¶ 17   Thus, we conclude that an association’s bank statements will

  typically fall within the unambiguous language of section

  38-33.3-317(1)(a). And because the statutory language is clear, we

  do not address the parties’ policy arguments in favor of or against

  this interpretation.6 See Samuel J. Stoorman & Assocs., P.C. v.


  5 The parties do not appear to dispute that “receipts” into and

  “expenditures” from an association’s bank account would be
  transactions “affecting the operation and administration of the
  association.” § 38-33.3-317(1)(a).
  6 We also do not endeavor to identify every type of record that might

  satisfy section 38-33.3-317(1)(a). Indeed, the drafters of the
  Uniform Common Interest Ownership Act (Unif. L. Comm’n 2021)
  (UCIOA), on which CCIOA is based, eschewed any attempt to
  prescribe how an association’s financial records must be kept. See
  Ch. 232, sec. 1, § 38-33.3-317(1), 

;
  Accetta v. Brooks Towers Residences Condo. Ass’n, 

,


                                    10
  Dixon, 

 (“When a statute is unambiguous, public

  policy considerations beyond the statute’s plain language have no

  place in its interpretation.”).

¶ 18   Notably, HGA does not appear to argue that bank statements

  do not meet the plain and ordinary meaning of the words in

  subsection (1)(a). Instead, it contends that, had the legislature

  intended to include bank statements in the “long list” of document

  categories that an association must maintain and make available, it

  would have separately listed them. HGA notes that the legislature

  specified that an association must maintain certain “financial

  statements,” just not the ones Seaman sought. And it argues that

  interpreting subsection (1)(a) expansively renders these other

  categories of documents superfluous, pointing specifically to




  ¶ 41 (noting that much of CCIOA was modeled on the UCIOA);
  UCIOA § 3-118 cmt. 3 (“The subsection generally avoids any
  substantive requirements as to how the [a]ssociation’s financial
  records are to be maintained, relying simply on the obligation to
  retain ‘detailed records of receipts’ . . . .”). And while we have
  concluded that bank records may be “[d]etailed records of receipts
  and expenditures,” not all “[d]etailed records of receipts and
  expenditures” are bank statements. § 38-33.3-317(1)(a). In other
  words, records other than bank statements (e.g., QuickBooks
  records of income and expenses) may also satisfy the definition.
  See id.

                                    11
  subsections (1)(g) and (1)(j). This is the rationale that the district

  court generally adopted in dismissing Seaman’s complaint. But for

  three reasons, we disagree.

¶ 19   First, to the extent bank statements are already included in

  one of the eighteen categories of records an association is required

  to maintain as set forth in subsection (1), the legislature need not

  have separately listed them. Certain of the eighteen categories are

  narrow — for example, “[a] list of the names, electronic mail

  addresses, and physical mailing addresses of its current executive

  board members and officers,” § 38-33.3-317(1)(h), which likely is a

  single record. But others are quite broad — such as “[r]ecords of

  claims for construction defects and amounts received pursuant to

  settlement of those claims,” § 38-33.3-317(1)(b), which could

  include demand letters, litigation-initiating complaints, settlement

  agreements, check stubs or wire transfer receipts, and other similar

  documents. Subsection (1)(a) is a broad category. That the

  legislature did not separately identify every document that might

  fall within subsection (1)(a) does not mean that documents falling

  within subsection (1)(a) but not separately identified can be

  withheld.


                                     12
¶ 20   Second, the legislature exempted several types of records from

  mandatory disclosure but did not include an association’s bank

  statements among the exemptions. Section 38-33.3-317(3)

  identifies seven categories of records that “may be withheld from

  inspection and copying” and section 38-33.3-317(3.5) identifies two

  categories of records that “are not subject to inspection and

  copying” and “must be withheld.” An association’s bank statements

  are not listed in either subsection. And although section

  38-33.3-317(3.5)(b)(I) prohibits an association from disclosing

  “[p]ersonal identification and account information of members and

  residents, including bank account information,” it is silent as to the

  association’s bank account information. (Emphasis added.)

¶ 21   To be sure, personal bank account information belonging to an

  individual member is not one of the eighteen categories of records

  identified in subsection (1). See § 38-33.3-317(1). Yet documents

  containing such information may fall within one of the eighteen

  categories, such as (1)(a). Recognizing this, the legislature

  specifically exempted individual members’ bank account

  information from inspection and disclosure. Because it did not do

  the same for an association’s bank account information, it must not


                                    13
  have intended those bank statements to be exempt. See Reale v.

  Bd. of Real Est. Appraisers, 

 (Colo. 1994)

  (under the maxim “expressio unius est exclusio alterius,” “the

  expression of one thing is the exclusion of another”).

¶ 22   Third, interpreting subsection (1)(a) to include an association’s

  bank statements does not render any other category of record

  superfluous. HGA points us to subsections (1)(g) and (1)(j), arguing

  that “[i]f, as Seaman claims, [subsection (1)(a)] covers all documents

  related to ‘money coming in and going out of the association,’”

  subsections (1)(g) and (1)(j) would be unnecessary. True, we avoid

  constructions that would render any words or phrases superfluous.

  See McBride v. People, 

, ¶ 23. But we are not convinced

  that the records identified in subsections (1)(g) and (1)(j) necessarily

  constitute “[d]etailed records of receipts and expenditures affecting

  the operation and administration of the association.”

  § 38-33.3-317(1)(a).

¶ 23   Section 38-33.3-317(1)(g) requires an association to maintain

  “[f]inancial statements as described in section 7-136-106, C.R.S.

  [2023], for the past three years.” Section 7-136-106 provides that,

  “[u]pon the written request of any member, a nonprofit corporation


                                     14
  shall mail to such member its most recent annual financial

  statements, if any, and its most recently published financial

  statements, if any, showing in reasonable detail its assets and

  liabilities and results of its operations.” (Emphasis added.) The

  financial statements contemplated by section 38-33.3-317(1)(g) are

  those reflecting the association’s overall financial condition by

  reporting its assets and liabilities. See Black’s Law Dictionary 775

  (defining “financial statement” as “[a] balance sheet, income

  statement, or annual report that summarizes an individual’s or

  organization’s financial condition on a specified date or for a

  specified period by reporting assets and liabilities”). But a snapshot

  of an association’s assets and liabilities is not likely to include

  “[d]etailed records of receipts and expenditures.”

  § 38-33.3-317(1)(a). For example, a financial statement might

  reflect that an association has $100,000 in a bank account as an

  asset, but it would not show the transactions in and out of that

  account (the receipts and expenditures) resulting in the end

  balance.

¶ 24   Section 38-33.3-317(1)(j) requires an association to maintain

  “[f]inancial records sufficiently detailed to enable the association to


                                     15
  comply with section 38-33.3-316(8)[, C.R.S. 2023,] concerning

  statements of unpaid assessments.” Section 38-33.3-316(8), in

  turn, requires an association to furnish to a unit owner “a written

  statement setting forth the amount of unpaid assessments

  currently levied against such owner’s unit.” A record that satisfies

  section 38-33.3-317(1)(j) would reflect amounts a unit owner has

  been assessed but has not paid — amounts an association has not

  received — so it would not reflect either “receipts” or “expenditures”

  of the association, which is what section 38-33.3-317(1)(a) requires.

  Moreover, it makes sense that the legislature would take care to

  separately list a record an association must maintain to be able to

  comply with another of its statutory obligations under CCIOA.

¶ 25   HGA also argues that the bank statements Seaman requested

  are not, as a matter of fact, the type of records contemplated by

  section 38-33.3-317(1)(a) because they do not show “receipts” or

  “expenditures.” More specifically, HGA asserts that it did not

  receive the PPP funds directly into the KeyBank account; rather, the

  funds were deposited into its operating account and then

  transferred to the KeyBank account. Similarly, HGA asserts that it

  did not expend any PPP funds directly from the KeyBank account;


                                    16
  rather, it transferred funds from the KeyBank account into its

  operating account. It is unclear to us whether any of the PPP funds

  were ever expended, from either the KeyBank account or HGA’s

  operating account. In any event, we are not able to confirm these

  assertions because the bank statements were not produced and are

  not part of the record on appeal.

¶ 26   But more importantly, these are factual issues that cannot be

  resolved in HGA’s favor on a C.R.C.P. 12(b)(5) motion. Denver Post

  Corp. v. Ritter, 

 (Colo. 2011) (“We uphold the

  grant of a C.R.C.P. 12(b)(5) motion to dismiss only when the

  plaintiff’s factual allegations do not, as a matter of law, support the

  claim for relief.”). Although Seaman alleged that the records he did

  receive from HGA showed transfers of PPP funds between the

  KeyBank account and HGA’s operating account, he did not allege

  that those were the sole transactions on the KeyBank account or

  that the PPP funds were not received into or expended from the

  KeyBank account. Nor can we so conclude as a matter of law.

¶ 27   For these reasons, we conclude that the district court erred

  when it determined, as a matter of law, that the bank statements

  Seaman requested did not fall within section 38-33.3-317(1)(a).


                                      17
  C.    Records Generated by Third Parties May Be Maintained by an
                               Association

¶ 28   HGA also contends that section 38-33.3-317(1) does not

  require an association to maintain or make available records

  “created by an outside party, such as a bank.” Because subsection

  (1) obligates an association to “maintain” certain records, and

  subsection (2) requires that “all records maintained by the

  association” be made available for inspection and copying, we

  understand HGA to argue that records generated by third parties

  are not records “maintained” by an association.7 We reject this

  contention for three reasons.

¶ 29   First, several of the eighteen categories of records an

  association is obligated to maintain are records an association is

  unlikely to generate itself. For example, “[r]ecords of claims for

  construction defects” may include demand letters and complaints

  asserting claims for construction defects, which are likely to be

  drafted by the association’s legal counsel. § 38-33.3-317(1)(b).

  Similarly, “[t]he association’s most recent reserve study” may have


  7 HGA does not argue, and the record does not reveal, that it does

  not have copies of or lacks reasonable access to its bank
  statements.

                                    18
  been prepared by a professional reserve study company or an

  outside expert. § 38-33.3-317(1)(k). Thus, the fact that a third

  party generates a record cannot mean that an association does not

  “maintain” it.

¶ 30   Second, excluding records created or kept by third parties

  from those an association is obligated to produce would frustrate

  the purpose of section 38-33.3-317 and lead to absurd results. See

  AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 

  (Colo. 1998) (“[A] statutory interpretation that defeats the legislative

  intent or leads to an absurd result will not be followed.”). Under

  HGA’s interpretation, an association that creates its own records

  would be required to produce them to unit owners while an

  association that outsources the preparation of its records — likely a

  larger association able to afford such professional services — would

  be able to avoid that same obligation. Such a result would be

  inequitable and contrary to the clear purpose of section

  38-33.3-317, which is to provide unit owners with reasonable

  access to information about the operation and administration of an

  association. Because we must presume the legislature intended a

  just and reasonable result, see AviComm, Inc., 

, we


                                     19
  reject any construction of the statute that conditions an owner’s

  right to access an association’s records on whether an association

  had a third party prepare them.

¶ 31   Third, we are persuaded that an association must make

  records generated by a third party available to unit owners by

  reference to a public entity’s obligations under the Colorado Open

  Records Act (CORA). Just as CCIOA entitles unit owners to inspect

  certain association records, CORA entitles members of the public to

  inspect public records. See § 24-72-201, C.R.S. 2023 (“[A]ll public

  records shall be open for inspection by any person at reasonable

  times,” except as otherwise provided by law.). “Public records”

  include “all writings made, maintained, or kept by” a public entity

  “for use in the exercise of functions required or authorized by law or

  administrative rule or involving the receipt or expenditure of public

  funds.” § 24-72-202(6)(a)(I), C.R.S. 2023 (emphasis added).

¶ 32   On several occasions, Colorado courts have concluded that

  records created by or in the possession of third parties nonetheless

  constitute public records that must be made available to the public.

  See Leonard v. Interquest N. Bus. Improvement Dist., 

,

  ¶¶ 18-19 (documents that a public entity has a “contractual right to


                                    20
  access” from a third party constitute public records it must make

  available for inspection); Int’l Bhd. of Elec. Workers Loc. 68 v. Denver

  Metro. Major League Baseball Stadium Dist., 

  (Colo. App. 1994) (documents not “made or kept” by the public

  entity, but to which the public entity had “full access” were public

  records); see also Denver Post Corp., 

  (“maintaining” a record includes “taking steps to ensure the

  physical integrity of the document, updating the information it

  contains, or directing another to do the same”); Zubeck v. El Paso

  Cnty. Ret. Plan, 

 (Colo. App. 1998) (concluding

  that the plaintiffs should have been given access under CORA to the

  retirement plan’s financial records, including its bank statements).

¶ 33   In the end, we conclude that the district court erred by

  dismissing Seaman’s complaint under C.R.C.P. 12(b)(5). The bank

  statements Seaman requested may be records HGA is obligated to

  maintain and produce to him under section 38-33.3-317(1)(a) and

  (2). Whether the bank statements in fact reflect “receipts and

  expenditures affecting the operation and administration of the

  association,” § 38-33.3-317(1)(a), is a factual question that cannot

  be resolved against Seaman at this stage of the proceedings. See


                                     21
  Denver Post Corp., 

 (“We accept all factual

  allegations in the complaint as true and view them in the light most

  favorable to the plaintiff.”). Seaman’s claim must be reinstated.

                      III.   Attorney Fees and Costs

¶ 34   In the district court, HGA requested and was awarded attorney

  fees and costs pursuant to section 38-33.3-123(1)(c), C.R.S. 2023.

  Under that provision, the prevailing party in any action to enforce

  or defend the provisions of CCIOA is entitled to reasonable attorney

  fees and costs. But because there has been no resolution on the

  merits, there is not yet a prevailing party. See DeJean v. Grosz,

  

; see also C.R.C.P. 54(d). Accordingly, we

  reverse the district court’s order awarding HGA its attorney fees and

  costs. And for the same reason, we decline to award appellate

  attorney fees to either party.

                              IV.   Disposition

¶ 35   We reverse the district court’s judgment and its order

  awarding attorney fees and costs to HGA, and we remand for

  further proceedings consistent with this opinion.

       JUDGE TOW and JUDGE SCHOCK concur.




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