Mark R. Anderson, Charles L. Patrick, Alberta R. Patrick, Theodore G. Rossin, Andrea R. Mihajlov, Marcia R. Petrun, and Mark Petrun, Petitioners-Appellants,
Applewood Water Association, Inc., d/b/a Applewood Estates Homeowners Association, Respondant-Appellee.
County District Court No. 15CV30234 Honorable C. Michelle
REVERSED IN PART, APPEAL DISMISSED IN PART, AND CASE REMANDED
& Herrera, LLC, David M. Herrera, Fort Collins, Colorado,
P.C., Christopher S. Maciejewski, Christopher A. Young,
Denver, Colorado, for Defendant-Appellee
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.
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.
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
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. 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 ...