Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anderson v. Applewood Water Association, Inc.

Court of Appeals of Colorado, First Division

November 3, 2016

Mark R. Anderson, Charles L. Patrick, Alberta R. Patrick, Theodore G. Rossin, Andrea R. Mihajlov, Marcia R. Petrun, and Mark Petrun, Petitioners-Appellants,
v.
Applewood Water Association, Inc., d/b/a Applewood Estates Homeowners Association, Respondant-Appellee.

         Larimer County District Court No. 15CV30234 Honorable C. Michelle Brinegar, Judge

         ORDER REVERSED IN PART, APPEAL DISMISSED IN PART, AND CASE REMANDED WITH DIRECTIONS

          Herms & Herrera, LLC, David M. Herrera, Fort Collins, Colorado, for Plaintiffs-Appellants

          CYLG, P.C., Christopher S. Maciejewski, Christopher A. Young, Denver, Colorado, for Defendant-Appellee

          FREYRE JUDGE

         ¶ 1 In this appeal from the trial court's order denying a motion for preliminary injunction, plaintiffs, Mark R. Anderson, Charles L. Patrick, Alberta R. Patrick, Theodore G. Rossin, Andrea R. Mihajlov, Marcia R. Petrun, and Mark Petrun (Owners), sought to enjoin the defendant, Applewood Water Association, Inc., d/b/a Applewood Estates Homeowners Association (Association), from performing two acts. First, Owners sought to enjoin the Association from conducting special meetings of the board of directors (board) in violation of its bylaws, § 38-33.3-308(2.5), C.R.S. 2016, of the Colorado Common Interest Ownership Act (CCIOA), and § 7-128-203(2), C.R.S. 2016, of the Colorado Revised Nonprofit Corporations Act (CRNCA). Second, Owners sought to enjoin the Association from submitting the "Amended and Restated Declaration of Covenants, Conditions and Restrictions of Applewood Estates" (Amended Declaration) for a full membership vote based on their belief that the Amended Declaration illegally conveyed their property rights in the bridle path easement to the Association and illegally expanded the scope of use of the easement without their consent. Because, as a matter of first impression, we conclude the trial court could enjoin the Association from holding special board meetings without providing the notice required under CCIOA and CRNCA, we reverse the trial court's order as to that preliminary injunction request and remand for further factual findings under Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982). Based on the information provided in supplemental briefs filed by both parties, we conclude the second injunction request is moot because a vote on the Amended Declaration has already occurred. Therefore, we dismiss that portion of the appeal.

         I. Background

         ¶ 2 This case involves a dispute between the Association and some individual lot owners over the board's decision, made in special meetings, to retain legal counsel to draft the Amended Declaration. Owners contend that the board conducted these special meetings without giving them the required notice and an opportunity to provide input. They also contend that the Amended Declaration unlawfully expands the use of the bridal path easement beyond its original intended use without their consent. Because the relevant facts are not disputed, we provide a brief history of the covenants and bylaws and then summarize the hearing evidence.

         A. Covenants and Bylaws

         ¶ 3 In 1964, the Applewood Estates plat map was recorded with the Larimer County Clerk and Recorder and stated, "All Utility & Bridle Path Easements Are 10' On Each Side of Property Lines Unless Otherwise Noted." This map identified the lots in the subdivision that were subject to the easements.

         ¶ 4 Additionally, the Association was created as a nonprofit corporation, and it recorded a list of protective covenants. Covenant 9 related to easements and stated in relevant part:

Easements for installation of utilities, drainage facilities, and bridal path(s) are served as shown on the recorded plat.
. . .
The easement area shall be maintained, at all times, by the owner of the plot appurtenant to it, to create a safe area for horsebackriding [sic].

         ¶ 5 Covenant 15 provided for amendments to the covenants by two-thirds approval of the association members.

         ¶ 6 The Association also created bylaws that set forth its purpose and rules for governance and specifically addressed special meetings of its members and of the board.[1] These bylaws required thirty days' notice to all members of regular and special meetings, and they permitted special meetings of the board upon giving reasonable notice to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.