COLORADO COURT OF APPEALS                                        2017COA73


Court of Appeals No. 16CA1381
Summit County District Court No. 16CV30071
Honorable Edward J. Casias, Judge


Tyra Summit Condominiums II Association, Inc., a Colorado nonprofit
corporation,

Petitioner-Appellee,

v.

Katherine Jean Clancy and Heather Clancy,

Appellants.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division I
                         Opinion by JUDGE GRAHAM
                       Taubman and Navarro, JJ., concur

                           Announced May 18, 2017


Winzenburg, Leff, Purvis & Payne, LLP, Wendy E. Weigler, Littleton, Colorado,
for Petitioner-Appellee

The Klug Law Firm, LLC, Noah Klug, Breckenridge, Colorado, for Appellants
¶1    This case requires us to address certain provisions of the

 Colorado Common Interest Ownership Act (the Act), sections

 38-33.3-101 to -402, C.R.S. 2016. The Act sets forth a “uniform

 framework for the creation and operation of common interest

 communities,” such as condominiums and cooperatives.

 § 38-33.3-102(1)(a), C.R.S. 2016. Among other things, the Act

 creates a judicial procedure for amending a declaration — the

 recorded instrument that creates a common interest community

 and sets forth the owners’ rights. §§ 38-33.3-103(1), -205, -217(7),

 C.R.S. 2016.

¶2    Two condominium owners argue that the district court should

 not have granted a petition by their condominium association to

 amend its declaration because the association failed to satisfy all of

 the statutory requirements. We agree with the condominium

 owners that the association failed to comply with all statutory

 requirements because it did not give owners sufficient notice of an

 association meeting, and we therefore reverse.

                           I.   Background

¶3    Katherine Jean Clancy and Heather Clancy (the Owners) own

 a condominium unit at the Tyra Summit Condominiums II in


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 Breckenridge, Colorado (Tyra II). Tyra II is administered by the Tyra

 Summit Condominiums II Association, Inc. (the Association). Each

 person or entity who owns a condominium unit at Tyra II is a

 member of the Association, and the Association is run by a Board of

 Managers (the Board).

¶4    The Association was established by a declaration recorded in

 1983 and is governed by that declaration and various amendments

 recorded thereafter (collectively, the Declaration).1 In 2016, the

 Association sought judicial approval of its attempt to amend the

 Declaration (the Amendment), which effectively rewrote the 1983

 Declaration “[b]ecause the original document [was] so outdated, the

 Board felt it was necessary to start over from the beginning.”

¶5    The Owners objected to the Amendment, arguing that the

 Association failed to meet several statutory requirements and that

 the Amendment improperly changed their allocated interests. After

 a hearing, at which the parties offered documentary evidence and


 1Although the Act generally applies only to common interest
 communities created after its adoption in 1992 (§ 38-33.3-115,
 C.R.S. 2016), certain provisions apply to communities created
 before the Act was adopted (§ 38-33.3-117, C.R.S. 2016), including
 provisions relevant to this case: sections 38-33.3-217(7) and 38-
 33.3-308(1), C.R.S. 2016. § 38-33.3-117(1)(h), (1.5)(i).

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 oral argument, but no testimony, the district court found that the

 Association had met all the statutory requirements and approved

 the Amendment in an oral ruling; the court later signed a brief

 written order to the same effect.

¶6    The Owners appeal the order, arguing that (1) the judicial

 amendment procedure is unconstitutional both on its face and as

 applied; (2) the Association failed to meet several statutory

 requirements; and (3) the Amendment improperly changes their

 allocated interests. We do not address the Owners’ first argument

 because it is not preserved, but we agree with the Owners that the

 Association failed to meet all statutory requirements because it

 failed to give proper notice of the association meeting at which the

 Amendment was discussed. We therefore reverse the order

 approving the Amendment. In light of our disposition, it is not

 necessary to reach the Owners’ remaining contentions.

          II.   We Do Not Address the Owners’ Unpreserved
                       Constitutionality Argument

¶7    The Owners first argue that section 38-33.3-217(7) is

 unconstitutional because it impairs a contract in violation of article

 II, section 11 of the Colorado Constitution. We do not address this



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 argument because it is raised for the first time on appeal. See

 McGihon v. Cave, 2016 COA 78, ¶ 16 (“[I]n civil cases . . . ‘[w]e do

 not consider constitutional issues raised for the first time on

 appeal.’” (quoting City & Cty. of Broomfield v. Farmers Reservoir &

 Irrigation Co., 239 P.3d 1270, 1276 (Colo. 2010))).

¶8    To the extent the Owners argue that Roberts v. American

 Family Mutual Insurance Co., 144 P.3d 546 (Colo. 2006), requires us

 to do so, we disagree. Whether we address unpreserved

 constitutional challenges is always a matter of discretion. See

 McGihon, ¶ 16 (“[W]e may, as a matter of discretion, review

 unpreserved challenges to a statute’s constitutionality where doing

 so would clearly further judicial economy.”) (emphasis added). And

 we decline to exercise our discretion in favor of review here because

 this case can be decided on a nonconstitutional basis.

          III.   The Association Did Not Satisfy the Statutory
                  Requirements for Judicially Amending the
                 Declaration Because It Did Not Give Sufficient
                       Notice of the Association Meeting

¶9    The Owners also assert that the district court erred in

 approving the Amendment because the Association failed to meet

 several statutory prerequisites. We agree that the Association failed



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  to provide sufficient notice of the meeting at which the Amendment

  was discussed, reverse on that basis, and decline to address the

  Owners’ remaining arguments.

                         A.   Standard of Review

¶ 10   Although we find no authority articulating the standard of

  review for a decision granting or denying a petition to amend a

  declaration under section 38-33.3-217(7), we conclude that such a

  decision presents mixed questions of law and fact, and we therefore

  review the trial court’s interpretation of the statute and declaration

  de novo, but we review the trial court’s factual findings for clear

  error. See Sheridan Redevelopment Agency v. Knightsbridge Land

  Co., 166 P.3d 259, 262 (Colo. App. 2007).

¶ 11   This case is analogous to Sheridan, where a division of this

  court considered what standard of review was appropriate for a trial

  court’s determination as to whether a redevelopment agency

  complied with a statute and an urban renewal plan. Id. The

  division concluded that the decision presented “mixed questions of

  law and fact because we must first consider what the statute and

  the redevelopment plan require, a legal question, and we must then

  consider whether petitioner complied with the statute and the


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  redevelopment plan, a factual question.” Id. Thus, the division

  afforded “traditional deference to the trial court’s extensive findings

  regarding petitioner’s actions, while interpreting the statute and the

  plan independent of the trial court.” Id. (citation omitted).

¶ 12   Similarly, here, the decision to approve the Association’s

  petition to amend the Declaration involves interpreting provisions of

  the Act to determine what is legally required to amend the

  Declaration, and then making factual findings regarding the actions

  the Association took to get the Amendment approved. Thus, we

  apply the same standard, interpreting the Act de novo but deferring

  to the district court’s factual findings unless they are clearly

  erroneous.

¶ 13   When interpreting a statute, our goal is to give effect to the

  General Assembly’s intent. McGihon, ¶ 6. “[I]f the language is clear

  and the intent of the General Assembly may be discerned with

  certainty, we need not resort to other rules of statutory

  interpretation,” Sheridan, 166 P.3d at 262 (quoting W. Fire Truck,

  Inc. v. Emergency One, Inc., 134 P.3d 570, 573 (Colo. App. 2006)),

  and we “apply the language as written,” McGihon, ¶ 6.




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¶ 14   When reviewing factual findings, we defer to the district

  court’s findings so long as they are supported by the record.

  Sheridan, 166 P.3d at 262. However, where findings of fact are

  based solely on uncontested documentary evidence, “an appellate

  court is as competent as the trial court to review the sufficiency of

  the evidence and apply the law thereto.” Colo. River Water

  Conservation Dist. v. Mun. Subdistrict, 198 Colo. 352, 355, 610 P.2d

  81, 83 (1979).

¶ 15   Under the Act, a court may grant a petition to amend a

  declaration when, among other things, “it finds that . . . [t]he

  association has complied with all requirements of this subsection

  (7).” § 38-33.3-217(7)(e)(I). One requirement of subsection (7) is

  that “[t]he association has discussed the proposed amendment

  during at least one meeting of the association.”

  § 38-33.3-217(7)(a)(II). The Act further provides the following:

             Not less than ten nor more than fifty days in
             advance of any meeting of the unit owners, the
             secretary or other officer specified in the
             bylaws shall cause notice to be hand delivered
             or sent prepaid by United States mail to the
             mailing address of each unit or to any other
             mailing address designated in writing by the
             unit owner. . . . The notice shall state the time
             and place of the meeting and the items on the


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             agenda, including the general nature of any
             proposed amendment to the declaration or
             bylaws . . . .

  § 38-33.3-308(1), C.R.S. 2016 (emphasis added).

                              B.   Analysis

¶ 16   We conclude that it was error to approve the Association’s

  petition to amend the Declaration because the record does not

  support the district court’s finding that all the requirements of

  section 38-33.3-217(7) were met. Specifically, the documentary

  evidence shows that the Association did not provide adequate notice

  to owners of the meeting where the proposed amendment would be

  (or was, according to the Association) discussed. See § 38-33.3-

  308(1). Thus, the Association did not meet the requirement that it

  discussed the proposed amendment at an association meeting. See

  § 38-33.3-217(7)(a)(II).

¶ 17   The parties agree that the meeting at which the Amendment

  was allegedly discussed occurred on August 1, 2015.2 The record

  includes two documents that might be deemed notice of the




  2The Owners argue that the Amendment was not actually
  discussed at that meeting, but they do not dispute the date of the
  meeting.

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  meeting. The first is dated only “June,” and it contains the subject

  line: “Annual Homeowners meeting for 2015.” The document

  advises Tyra II owners that the 2015 annual meeting would take

  place on August 1, 2015, at 9 a.m. and provides the following

  information regarding the Amendment:

                Rewriting of our Declarations:

                [We] have been working on a Declarations
                rewrite and have agreed on a final draft which
                is currently at our Attorney’s office to make the
                final adjustments. When our Attorney makes
                those changes we will be sending an entire
                packet via regular mail to each homeowner
                with a form for approval. It is very important
                for each owner to review the new Declarations,
                indicate their approval and mail the approval
                notice in the supplied self-address envelop
                [sic]. It takes 67% of homeowners to amend
                and implement the new Declarations.

¶ 18   The second document is dated July 28, 2015, and contains

  the subject line: “Amendments to the Tyra Summit Condominiums

  II Association, Inc. Declaration.” This letter encloses a copy of the

  Amendment, a consent form, and a summary of the proposed

  changes; advises that sixty-seven percent of owners must agree to

  the Amendment; and summarizes “[s]ome of the most significant

  revisions.”



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¶ 19   Neither of these notices satisfies section 38-33.3-308(1). The

  first notice did not include “the general nature of any proposed

  amendment to the declaration.” § 38-33.3-308(1). Stating that the

  Board is in the process of finalizing a new declaration and

  indicating that information would be provided in the future does not

  provide owners with notice of the “general nature” of the proposed

  changes. It merely notifies them that changes will be proposed.

  Thus, we conclude that the first notice did not satisfy the

  requirements of section 38-33.3-308(1).

¶ 20   The second notice also failed to satisfy section 38-33.3-308(1)

  because it was not provided at least ten days before the meeting at

  which the proposed Amendment was to be discussed. Assuming

  the letter was actually sent on July 28,3 that is only three days in

  advance of the August 1 meeting, not more than ten as required.



  3 The Owners argue that the letter was not sent on July 28 based in
  part on a notation in the August 1 meeting minutes that “packets of
  information are ready to be mailed to each Unit homeowner. If
  homeowners choose they may pick up packets today.” The district
  court did not appear to resolve this dispute, concluding only that,
  pursuant to section 38-33.3-217(7)(a)(I), at least two notices had
  been sent to owners. In its oral ruling, the court stated, “I think
  probably September and December were the two that would
  indicate more of a mailing. I think August is sort of standing on the

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¶ 21   Because there was no valid notice of the association meeting,

  the record does not support the finding that the Association

  satisfied all requirements of subsection (7) — the Amendment was

  not discussed “during at least one meeting of the association.”

  § 38-33.3-217(7)(a)(II). We therefore reverse the order approving the

  Amendment.

                       IV.   Remaining Contentions

¶ 22   Because we reverse on the basis of the insufficient meeting

  notice, we do not address the Owners’ remaining arguments that

  the Association failed to satisfy other requirements of the Act’s

  judicial amendment procedure or that the Amendment

  impermissibly changed the owners’ allocated interests.

                        V.   Attorney Fee Requests

¶ 23   Each party requested attorney fees. As the prevailing party on

  appeal, the Owners are entitled to their reasonable attorney fees

  and costs. See § 38-33.3-123(1)(c), C.R.S. 2016 (“In any civil action

  to enforce or defend the provisions of this article . . . , the court




  premise that they were sent out July 28th, which owners may not
  have received. But they weren’t changing or petitioning at that
  time.”

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  shall award reasonable attorney fees, costs, and costs of collection

  to the prevailing party.”) (emphasis added). We therefore remand

  for a determination of the Owners’ reasonable attorney fees and

  costs. See C.A.R. 39.1.

                            VI.   Conclusion

¶ 24   The order is reversed, and the case is remanded for

  proceedings consistent with this opinion.

       JUDGE TAUBMAN and JUDGE NAVARRO concur.




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