In Re Anthony T. Accetta, Plaintiff
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
¶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
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.
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.
Facts and Procedural Background
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.
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."
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
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).
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).
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.