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In re Accetta

Supreme Court of Colorado, En Banc

February 11, 2019

In Re Anthony T. Accetta, Plaintiff
v.
Brooks Towers Residences Condominium Association, Inc., a Colorado nonprofit corporation; Mark Trenka, Marla Grant, Bill Clarke, Clay Courter, Robb Green, Alton Darby, Joan Foster, and Jeanne Root, in their capacities as members of the Board of Directors of the Brooks Towers Residences Condominium Association, Inc. Defendants

          Original Proceeding Pursuant to C.A.R. 21 District Court, City and County of Denver, Case No. 17CV34787 Honorable J. Eric Elliff, Judge

          Attorneys for Plaintiff: Podoll & Podoll, P.C. Robert C. Podoll Greenwood Village, Colorado Foley & Mansfield, PLLP Dustin J. Priebe Englewood, Colorado

          Attorneys for Defendants: Nemirow Perez P.C. Miles Buckingham Ronald H. Nemirow Lakewood, Colorado

          OPINION

          GABRIEL JUSTICE.

          ¶1 In this original proceeding pursuant to C.A.R. 21, we review the district court's order requiring plaintiff Anthony Accetta to join the approximately 500 individual unit owners in the Brooks Tower Residences ("Brooks Tower") as indispensable parties in the present action, rather than proceeding solely against defendants Brooks Towers Residences Condominium Association, Inc. and its board members (collectively, the "Association").

         ¶2 Accetta seeks, among other things, a declaratory judgment that would invalidate, as contrary to the Colorado Common Interest Ownership Act ("CCIOA"), sections 38-33.3-101 to -402, C.R.S. (2018), the provision of the Amended and Restated Declaration of Covenants, Conditions and Restrictions of the Association (the "Declaration") that provides for ownership interests to be allocated in the sole discretion of the declarant of that Declaration (the "Declarant"). Accetta contends that this provision violates CCIOA's requirement that ownership interests be allocated by formula and has resulted in his paying association dues in excess of his fair share.

         ¶3 On the Association's motion to dismiss for failure to join indispensable parties, the district court concluded that all of the Brooks Tower unit owners are indispensable parties and must be joined. We issued a rule to show cause and now conclude that, because the Association can adequately represent the interests of the absent unit owners for purposes of Accetta's declaratory judgment claim in this case, Accetta need not join those absent owners. Accordingly, we make the rule to show cause absolute.

         I. Facts and Procedural Background

         ¶4 Accetta and his wife own a condominium in Brooks Tower. Brooks Tower is comprised of 566 residential units, 13 commercial units, and 297 associated garage units.

         ¶5 All Brooks Tower unit owners are governed by the Declaration, which allocates condominium fees among the unit owners based on the "value" of each unit. As pertinent here, this value (1) "may or may not be the list price of the Unit as quoted to prospective third-party purchasers" as of the date of the declaration; (2) is determined "in Declarant's sole and arbitrary discretion"; (3) is to be used for the purpose of computing the unit owners' percentage interests in Brooks Tower's common elements; and (4) "shall be final and conclusive."

         ¶6 Accetta asserts that his unit has been allocated association dues that are over fifty percent higher than the dues allocated to comparable units and that this misallocation has resulted in hundreds of dollars in monthly overcharges. Accordingly, he filed the present action against the Association seeking, among other things, a declaratory judgment invalidating the portion of the Declaration allowing the Declarant to allocate values in its "sole and arbitrary discretion," rather than by way of a formula that allocates percentage ownership consistently among comparable units. Accetta specifically contends that the provision at issue violates CCIOA and is therefore "invalid or otherwise void and must be reformed to comply with the requirements of [CCIOA] and the obligation of good faith."[1]

         ¶7 The Association moved to dismiss Accetta's complaint, arguing, in pertinent part, that he failed to join indispensable parties, namely, the individual unit owners in Brooks Tower. Specifically, the Association contended that, because the declaratory judgment that Accetta sought could affect the other unit owners' interests, he was required to join those owners pursuant to C.R.C.P. 19(a), C.R.C.P. 57(j), and section 13-51-115, C.R.S. (2018).

         ¶8 The district court ultimately denied the Association's motion to dismiss, but it agreed with the Association that Accetta was required to join all of the other unit owners before the case could proceed. The court reasoned that, because the other unit owners would be affected by any declaratory judgment concerning the legality of the pertinent provisions of the Declaration, Accetta was required to join them under C.R.C.P. 57(j).

         ¶9 Accetta petitioned this court for relief under C.A.R. 21, requesting that we issue a rule to show cause why the district court's ruling should not be vacated. We issued the requested rule, and we have had the benefit of full briefing and oral argument in this matter.

         II. ...


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