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Accetta v. Brooks Towers Residences Condominium Ass’n, Inc.

2021 COA 147. No. 20CA0690.  Colorado Common Interest Ownership Act—Condominium Ownership Act—Attorney Fees.

December 9, 2021

Plaintiffs, the Accettas, own a unit in Brooks Tower, a condominium building that was created before July 1, 1992, the effective date of the Colorado Common Interest Ownership Act (CCIOA). Plaintiffs sued the Brooks Towers Residences Condominium Association, Inc. and named members of its board of directors (collectively, Association) after they discovered that they were paying 50% more in common expenses than owners of similar units in Brooks Tower. The district court ultimately ruled that Association was governed by the Condominium Ownership Act (COA) rather than CCIOA. Nevertheless, the court awarded attorney fees to Association under CRS § 38-33.3-123(1)(c) of CCIOA.

On appeal, plaintiffs argued that the district court erred by awarding fees under CCIOA despite concluding that Association’s declaration was governed by COA. However, CCIOA makes common interest communities created before its effective date subject to CRS § 38-33.3-123, the fee-shifting provision. Thus, the district court did not err.

Plaintiffs also argued that the attorney fees awarded to Association should have been limited to $10,000, the amount of the insurance deductible that Association paid. Here, even though Association paid only its deductible and its insurer covered the remaining attorney fees and costs, Association was entitled to recover all of its fees under the collateral source rule.

Plaintiffs further contended that the district court erred by including in Association’s award the attorney fees it incurred in connection with its unsuccessful joinder argument. Here, the district court’s fees award was neither patently erroneous nor unsupported by the record. It did not abuse its discretion by determining that Association’s costs were reasonable in their totality, given that Association ultimately prevailed against plaintiffs on all claims.

Lastly, the Court of Appeals granted Association’s request for appellate attorney fees.

The judgment was affirmed and the case was remanded for determination and award of Association’s reasonable appellate attorney fees.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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