Thomas Seaman v. Heather Gardens Association ( 2023 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
December 28, 2023
2023COA125No. 22CA2103 & 23CA0372, Seaman v. Heather Gardens —
Real Property — Colorado Common Interest Ownership Act —
Association Records
In this civil action involving the Colorado Common Interest
Ownership Act (CCIOA), §§ 38-33.3-101 to -402, C.R.S. 2023, a
division of the court of appeals determines, as a matter of first
impression, that a unit owners’ association’s bank statements may
constitute “[d]etailed records of receipts and expenditures affecting
the operation and administration of the association” under section
38-33.3-317(1)(a), C.R.S. 2023. The division further concludes that
records generated by a third party, such as a bank, may be records
an association “maintain[s]” and must make available for
examination and copying by a unit owner under section 38-33.3-
317(2). Thus, the division concludes that the district court erred by
dismissing plaintiff’s amended complaint on the basis that bank
statements cannot, as a matter of law, be records that a unit
owners’ association is required to maintain and produce for
inspection to a unit owner under section 38-33.3-317(1)(a) and (2).
Consequently, the division reverses the judgment dismissing
plaintiff’s complaint and remands for further proceedings.
COLORADO COURT OF APPEALS 2023COA125Court of Appeals Nos. 22CA2103 & 23CA0372
Arapahoe County District Court No. 22CV31637
Honorable Elizabeth Beebe Volz, Judge
Thomas Seaman,
Plaintiff-Appellant,
v.
Heather Gardens Association, a Colorado nonprofit corporation,
Defendant-Appellee.
JUDGMENT AND ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE BROWN
Tow and Schock, JJ., concur
Announced December 28, 2023
Robinson Waters & O’Dorisio, P.C., Kimberly A. Bruetsch, Mike Lazar, Denver,
Colorado, for Plaintiff-Appellant
The Hustead Law Firm, Patrick Q. Hustead, Aaron M. Bell, Jason J. Patel,
Denver, Colorado, for Defendant-Appellee
¶1 The legislature enacted the Colorado Common Interest
Ownership Act (CCIOA), §§ 38-33.3-101 to -402, C.R.S. 2023, in
part to “establish a clear, comprehensive, and uniform framework
for the creation and operation of common interest communities.”
§ 38-33.3-102(1)(a), C.R.S. 2023. Common interest communities
are managed by unit owners’ associations organized under section
38-33.3-301, C.R.S. 2023.
¶2 Section 38-33.3-317, C.R.S. 2023, provides that unit owners
are entitled to reasonable access to information about the
operation, administration, and finances of their unit owners’
association. To that end, section 38-33.3-317(1) obligates an
association to “maintain” eighteen categories of records — in
addition to any records specifically defined in the association’s
declaration or bylaws, or expressly required by section
38-33.3-209.4(2), C.R.S. 2023 — “for purposes of document
retention and production to owners.” § 38-33.3-317(1)(a)-(p).
¶3 Plaintiff, Thomas Seaman, appeals the district court’s order
dismissing his complaint against defendant, Heather Gardens
1
Association (HGA).1 Seaman sought an injunction compelling HGA
to make certain bank statements available to him for examination
under CCIOA.2 He contends that the court erred by dismissing his
complaint on the basis that section 38-33.3-317 does not require
HGA to produce the bank statements.
¶4 Resolving Seaman’s contention requires us to determine, as a
matter of first impression, whether bank statements may be
“[d]etailed records of receipts and expenditures affecting the
operation and administration of the association” under section
38-33.3-317(1)(a). Based on the plain language of the statute, we
conclude that bank statements may constitute such records. We
further conclude that records generated by a third party, such as a
bank, may be records an association “maintain[s]” and must make
available for examination and copying by a unit owner under
section 38-33.3-317(2)(a). Consequently, we conclude that the
1 Our references to Seaman’s complaint are to his first amended
complaint, which is the operative complaint.
2 Seaman’s complaint also requested a penalty under section 38-
33.3-317(4.5), C.R.S. 2023, which states that an association must
allow inspection or copying of the applicable records within thirty
days or be subject to penalties. That claim is not before us on
appeal and should be addressed on remand.
2
district court erred by dismissing Seaman’s complaint under
C.R.C.P. 12(b)(5). We reverse the judgment and remand for further
proceedings.3
I. Background and Procedural History
¶5 HGA is a nonprofit corporation that manages Heather
Gardens, an age-restricted senior living community. The parties
agree that HGA is subject to CCIOA and that Seaman is a property
owner and resident of Heather Gardens. See § 38-33.3-103(3), (31),
C.R.S. 2023.
¶6 According to Seaman’s complaint, in April 2020, HGA applied
for a loan under the Paycheck Protection Program (PPP) and
received funds in the amount of $1,085,800. It opened a new
account at KeyBank to hold and manage the PPP funds. And in
July 2021, it applied for and received forgiveness of the PPP loan.
¶7 In June 2022, Seaman requested copies of HGA’s records
including, as relevant here, bank statements for the KeyBank
account in which it held the PPP funds. HGA provided Seaman
3 Because we reverse on this basis, we decline to address Seaman’s
alternative argument that section 38-33.3-317(2) requires an
association to produce “all records” it maintains, regardless of
whether such records fall within a category listed in subsection (1).
3
with copies of balance sheets showing the PPP funds as an asset
titled “Cash – Key Bank PPP Proceeds” with varying balances, but it
declined to provide the bank statements, explaining that “[b]ank
statements are not records of the association that must be kept or
made available for inspection/copying by owners.”
¶8 In August, Seaman filed a complaint in the district court
seeking an injunction requiring HGA to produce the requested bank
statements. HGA moved to dismiss under C.R.C.P. 12(b)(5),
arguing that section 38-33.3-317 does not require it to maintain or
produce bank statements for inspection and copying. It further
argued that the statute does not require it to maintain and make
available records created by a third party, such as a bank.
¶9 The district court granted the motion to dismiss, concluding
that bank statements “[c]learly” are not “[d]etailed records of
receipts and expenditures affecting the operation and
administration of the association” under section 38-33.3-317(1)(a)
and are not otherwise listed among the categories of records an
4
association is required to maintain under subsection (1).4 The
court acknowledged that the purpose of section 38-33.3-317 is “to
provide owners with access to information about the operation of
the association and how its funds are generated and spent,” but it
reasoned that Seaman had received sufficient records from HGA
“related to the receipt of PPP funds, the amount of the funds
received, the accounts in which the funds were held and when
those funds were transferred from one account to another,” and
that HGA’s refusal to provide the bank statements did not “interfere
with [Seaman’s] right to receive the relevant information.”
II. Analysis
¶ 10 Seaman contends that the district court erred by concluding
that bank statements are not, as a matter of law, “[d]etailed records
of receipts and expenditures affecting the operation and
administration of the association” under section 38-33.3-317(1)(a).
4 The district court also concluded that the requested bank
statements did not constitute “[f]inancial statements as described in
section 7-136-106, C.R.S. [2023],” § 38-33.3-317(1)(g), or
“[f]inancial records sufficiently detailed to enable the association to
comply with section 38-33.3-316(8)[, C.R.S. 2023],” § 38-33.3-
317(1)(j). It does not appear that Seaman ever argued that the
requested bank statements meet either of these definitions, and he
does not challenge that part of the court’s ruling on appeal.
5
We agree. We also conclude that, even though they are generated
by a third party, bank statements may be “maintained by the
association” such that they must be made available for examination
and copying by a unit owner under section 38-33.3-317(2). Thus,
we conclude that the court erred by dismissing Seaman’s complaint
under C.R.C.P. 12(b)(5).
A. Standard of Review and Generally Applicable Law
¶ 11 We review de novo a district court’s judgment dismissing a
complaint for failure to state a claim upon which relief can be
granted under C.R.C.P. 12(b)(5). Nieto v. Clark’s Mkt., Inc., 2021 CO
48, ¶ 11. We accept as true the factual allegations in the complaint
and, viewing them in the light most favorable to the plaintiff,
determine whether the complaint states a plausible claim for relief.
See id.; Warne v. Hall, 2016 CO 50, ¶¶ 9, 24.
¶ 12 We also review de novo issues of statutory construction. Nieto,
¶ 12. In doing so, our primary task is to give effect to the legislative
intent as reflected in the plain and ordinary meanings of the words
and phrases used. Carousel Farms Metro. Dist. v. Woodcrest Homes,
Inc., 2019 CO 51, ¶ 40. We read the statute in the context of the
entire statutory scheme, giving consistent and sensible effect to all
6
its parts. Id.; see also §§ 2-4-101, -201, C.R.S. 2023; A.M. v. A.C.,
2013 CO 16, ¶ 8. And we avoid constructions that would render
any words or phrases superfluous or lead to illogical or absurd
results. Dep’t of Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 16.
When the language of a statute is clear, we enforce it as written.
Elder v. Williams, 2020 CO 88, ¶ 18.
B. The Bank Statements May Be Detailed Records of Receipts
and Expenditures Affecting the Operation and Administration
of an Association
¶ 13 As noted, section 38-33.3-317(1) obligates an association to
“maintain” eighteen categories of records “for purposes of document
retention and production to owners.” § 38-33.3-317(1)(a)-(p).
Under section 38-33.3-317(2), “all records maintained by the
association must be available for examination and copying by a unit
owner or the owner’s authorized agent” in accordance with
prescribed procedures. Furthermore, “the association may not
condition the production of records upon the statement of a proper
purpose.” Id.
¶ 14 Seaman contends that bank statements fall into one of the
categories of records an association is required by statute to
maintain and make available to him as a unit owner: “[d]etailed
7
records of receipts and expenditures affecting the operation and
administration of the association.” § 38-33.3-317(1)(a). Based on
the statute’s plain language, we agree that bank statements may
constitute such records.
¶ 15 The relevant terms are not defined in CCIOA. But because
they are words in common usage and “people of ordinary
intelligence needn’t guess at [their] meaning,” we consider their
dictionary definitions. Butler v. Bd. of Cnty. Comm’rs, 2021 COA
32, ¶ 14; see Broomfield Senior Living Owner, LLC v. R.G. Brinkmann
Co., 2017 COA 31, ¶ 18 (where a statute fails to define a term, we
consider its common usage).
 A “record” is “the state or fact of being recorded” or
“something that records.” Merriam-Webster Dictionary,
https://perma.cc/3H6V-QUWY. To “record” means “to set
down in writing” or “furnish written evidence of.” Id.; see
Black’s Law Dictionary 1527 (11th ed. 2019) (A “record” is
“[a] documentary account of past events” or “[i]nformation
that is inscribed on a tangible medium or that, having been
stored in an electronic or other medium, is retrievable in
perceivable form.”).
8
 “Detailed” means “marked by abundant detail or by
thoroughness in treating small items or parts.”
Merriam-Webster Dictionary, https://perma.cc/3QN2-
QVFE.
 A “receipt” is “a writing acknowledging the receiving of
goods or money,” “the act or process of receiving,” or
“something received.” Merriam-Webster Dictionary,
https://perma.cc/V287-RKCF; see Black’s Law Dictionary
at 1521 (“Receipt” includes “[a] written acknowledgment
that something has been received; esp., a piece of paper or
an electronic notification that one has paid for something.”).
 “Expenditure” is defined as “the act or process of
expending” or “something expended,” namely a
“disbursement” or “expense.” Merriam-Webster Dictionary,
https://perma.cc/3MNA-5FRQ. “Expending” is further
defined as “to pay out” or “spend.” Merriam-Webster
Dictionary, https://perma.cc/7JPM-BWER; see Black’s Law
Dictionary at 723 (defining “expenditure” as “[t]he act or
process of spending or using money, time, energy, etc.; esp.,
the disbursement of funds” or as “[a] sum paid out”).
9
¶ 16 A bank statement is a “record,” in that it sets down in writing
information about a bank account. It is a “detailed record” because
it typically provides particulars about the account itself and any
transactions occurring on the account — including the date,
transaction type, and dollar amount, among other details. And it is
a “detailed record of receipts and expenditures” to the extent it
reflects any deposits (receipts of funds) into or withdrawals
(expenditures of funds) from the account.5
¶ 17 Thus, we conclude that an association’s bank statements will
typically fall within the unambiguous language of section
38-33.3-317(1)(a). And because the statutory language is clear, we
do not address the parties’ policy arguments in favor of or against
this interpretation.6 See Samuel J. Stoorman & Assocs., P.C. v.
5 The parties do not appear to dispute that “receipts” into and
“expenditures” from an association’s bank account would be
transactions “affecting the operation and administration of the
association.” § 38-33.3-317(1)(a).
6 We also do not endeavor to identify every type of record that might
satisfy section 38-33.3-317(1)(a). Indeed, the drafters of the
Uniform Common Interest Ownership Act (Unif. L. Comm’n 2021)
(UCIOA), on which CCIOA is based, eschewed any attempt to
prescribe how an association’s financial records must be kept. See
Ch. 232, sec. 1, § 38-33.3-317(1), 2012 Colo. Sess. Laws 1016;
Accetta v. Brooks Towers Residences Condo. Ass’n, 2021 COA 87,
10
Dixon, 2017 CO 42, ¶ 11 (“When a statute is unambiguous, public
policy considerations beyond the statute’s plain language have no
place in its interpretation.”).
¶ 18 Notably, HGA does not appear to argue that bank statements
do not meet the plain and ordinary meaning of the words in
subsection (1)(a). Instead, it contends that, had the legislature
intended to include bank statements in the “long list” of document
categories that an association must maintain and make available, it
would have separately listed them. HGA notes that the legislature
specified that an association must maintain certain “financial
statements,” just not the ones Seaman sought. And it argues that
interpreting subsection (1)(a) expansively renders these other
categories of documents superfluous, pointing specifically to
¶ 41 (noting that much of CCIOA was modeled on the UCIOA);
UCIOA § 3-118 cmt. 3 (“The subsection generally avoids any
substantive requirements as to how the [a]ssociation’s financial
records are to be maintained, relying simply on the obligation to
retain ‘detailed records of receipts’ . . . .”). And while we have
concluded that bank records may be “[d]etailed records of receipts
and expenditures,” not all “[d]etailed records of receipts and
expenditures” are bank statements. § 38-33.3-317(1)(a). In other
words, records other than bank statements (e.g., QuickBooks
records of income and expenses) may also satisfy the definition.
See id.
11
subsections (1)(g) and (1)(j). This is the rationale that the district
court generally adopted in dismissing Seaman’s complaint. But for
three reasons, we disagree.
¶ 19 First, to the extent bank statements are already included in
one of the eighteen categories of records an association is required
to maintain as set forth in subsection (1), the legislature need not
have separately listed them. Certain of the eighteen categories are
narrow — for example, “[a] list of the names, electronic mail
addresses, and physical mailing addresses of its current executive
board members and officers,” § 38-33.3-317(1)(h), which likely is a
single record. But others are quite broad — such as “[r]ecords of
claims for construction defects and amounts received pursuant to
settlement of those claims,” § 38-33.3-317(1)(b), which could
include demand letters, litigation-initiating complaints, settlement
agreements, check stubs or wire transfer receipts, and other similar
documents. Subsection (1)(a) is a broad category. That the
legislature did not separately identify every document that might
fall within subsection (1)(a) does not mean that documents falling
within subsection (1)(a) but not separately identified can be
withheld.
12
¶ 20 Second, the legislature exempted several types of records from
mandatory disclosure but did not include an association’s bank
statements among the exemptions. Section 38-33.3-317(3)
identifies seven categories of records that “may be withheld from
inspection and copying” and section 38-33.3-317(3.5) identifies two
categories of records that “are not subject to inspection and
copying” and “must be withheld.” An association’s bank statements
are not listed in either subsection. And although section
38-33.3-317(3.5)(b)(I) prohibits an association from disclosing
“[p]ersonal identification and account information of members and
residents, including bank account information,” it is silent as to the
association’s bank account information. (Emphasis added.)
¶ 21 To be sure, personal bank account information belonging to an
individual member is not one of the eighteen categories of records
identified in subsection (1). See § 38-33.3-317(1). Yet documents
containing such information may fall within one of the eighteen
categories, such as (1)(a). Recognizing this, the legislature
specifically exempted individual members’ bank account
information from inspection and disclosure. Because it did not do
the same for an association’s bank account information, it must not
13
have intended those bank statements to be exempt. See Reale v.
Bd. of Real Est. Appraisers, 880 P.2d 1205, 1207 (Colo. 1994)
(under the maxim “expressio unius est exclusio alterius,” “the
expression of one thing is the exclusion of another”).
¶ 22 Third, interpreting subsection (1)(a) to include an association’s
bank statements does not render any other category of record
superfluous. HGA points us to subsections (1)(g) and (1)(j), arguing
that “[i]f, as Seaman claims, [subsection (1)(a)] covers all documents
related to ‘money coming in and going out of the association,’”
subsections (1)(g) and (1)(j) would be unnecessary. True, we avoid
constructions that would render any words or phrases superfluous.
See McBride v. People, 2022 CO 30, ¶ 23. But we are not convinced
that the records identified in subsections (1)(g) and (1)(j) necessarily
constitute “[d]etailed records of receipts and expenditures affecting
the operation and administration of the association.”
§ 38-33.3-317(1)(a).
¶ 23 Section 38-33.3-317(1)(g) requires an association to maintain
“[f]inancial statements as described in section 7-136-106, C.R.S.
[2023], for the past three years.” Section 7-136-106 provides that,
“[u]pon the written request of any member, a nonprofit corporation
14
shall mail to such member its most recent annual financial
statements, if any, and its most recently published financial
statements, if any, showing in reasonable detail its assets and
liabilities and results of its operations.” (Emphasis added.) The
financial statements contemplated by section 38-33.3-317(1)(g) are
those reflecting the association’s overall financial condition by
reporting its assets and liabilities. See Black’s Law Dictionary 775
(defining “financial statement” as “[a] balance sheet, income
statement, or annual report that summarizes an individual’s or
organization’s financial condition on a specified date or for a
specified period by reporting assets and liabilities”). But a snapshot
of an association’s assets and liabilities is not likely to include
“[d]etailed records of receipts and expenditures.”
§ 38-33.3-317(1)(a). For example, a financial statement might
reflect that an association has $100,000 in a bank account as an
asset, but it would not show the transactions in and out of that
account (the receipts and expenditures) resulting in the end
balance.
¶ 24 Section 38-33.3-317(1)(j) requires an association to maintain
“[f]inancial records sufficiently detailed to enable the association to
15
comply with section 38-33.3-316(8)[, C.R.S. 2023,] concerning
statements of unpaid assessments.” Section 38-33.3-316(8), in
turn, requires an association to furnish to a unit owner “a written
statement setting forth the amount of unpaid assessments
currently levied against such owner’s unit.” A record that satisfies
section 38-33.3-317(1)(j) would reflect amounts a unit owner has
been assessed but has not paid — amounts an association has not
received — so it would not reflect either “receipts” or “expenditures”
of the association, which is what section 38-33.3-317(1)(a) requires.
Moreover, it makes sense that the legislature would take care to
separately list a record an association must maintain to be able to
comply with another of its statutory obligations under CCIOA.
¶ 25 HGA also argues that the bank statements Seaman requested
are not, as a matter of fact, the type of records contemplated by
section 38-33.3-317(1)(a) because they do not show “receipts” or
“expenditures.” More specifically, HGA asserts that it did not
receive the PPP funds directly into the KeyBank account; rather, the
funds were deposited into its operating account and then
transferred to the KeyBank account. Similarly, HGA asserts that it
did not expend any PPP funds directly from the KeyBank account;
16
rather, it transferred funds from the KeyBank account into its
operating account. It is unclear to us whether any of the PPP funds
were ever expended, from either the KeyBank account or HGA’s
operating account. In any event, we are not able to confirm these
assertions because the bank statements were not produced and are
not part of the record on appeal.
¶ 26 But more importantly, these are factual issues that cannot be
resolved in HGA’s favor on a C.R.C.P. 12(b)(5) motion. Denver Post
Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011) (“We uphold the
grant of a C.R.C.P. 12(b)(5) motion to dismiss only when the
plaintiff’s factual allegations do not, as a matter of law, support the
claim for relief.”). Although Seaman alleged that the records he did
receive from HGA showed transfers of PPP funds between the
KeyBank account and HGA’s operating account, he did not allege
that those were the sole transactions on the KeyBank account or
that the PPP funds were not received into or expended from the
KeyBank account. Nor can we so conclude as a matter of law.
¶ 27 For these reasons, we conclude that the district court erred
when it determined, as a matter of law, that the bank statements
Seaman requested did not fall within section 38-33.3-317(1)(a).
17
C. Records Generated by Third Parties May Be Maintained by an
Association
¶ 28 HGA also contends that section 38-33.3-317(1) does not
require an association to maintain or make available records
“created by an outside party, such as a bank.” Because subsection
(1) obligates an association to “maintain” certain records, and
subsection (2) requires that “all records maintained by the
association” be made available for inspection and copying, we
understand HGA to argue that records generated by third parties
are not records “maintained” by an association.7 We reject this
contention for three reasons.
¶ 29 First, several of the eighteen categories of records an
association is obligated to maintain are records an association is
unlikely to generate itself. For example, “[r]ecords of claims for
construction defects” may include demand letters and complaints
asserting claims for construction defects, which are likely to be
drafted by the association’s legal counsel. § 38-33.3-317(1)(b).
Similarly, “[t]he association’s most recent reserve study” may have
7 HGA does not argue, and the record does not reveal, that it does
not have copies of or lacks reasonable access to its bank
statements.
18
been prepared by a professional reserve study company or an
outside expert. § 38-33.3-317(1)(k). Thus, the fact that a third
party generates a record cannot mean that an association does not
“maintain” it.
¶ 30 Second, excluding records created or kept by third parties
from those an association is obligated to produce would frustrate
the purpose of section 38-33.3-317 and lead to absurd results. See
AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d 1023, 1031
(Colo. 1998) (“[A] statutory interpretation that defeats the legislative
intent or leads to an absurd result will not be followed.”). Under
HGA’s interpretation, an association that creates its own records
would be required to produce them to unit owners while an
association that outsources the preparation of its records — likely a
larger association able to afford such professional services — would
be able to avoid that same obligation. Such a result would be
inequitable and contrary to the clear purpose of section
38-33.3-317, which is to provide unit owners with reasonable
access to information about the operation and administration of an
association. Because we must presume the legislature intended a
just and reasonable result, see AviComm, Inc., 955 P.2d at 1031, we
19
reject any construction of the statute that conditions an owner’s
right to access an association’s records on whether an association
had a third party prepare them.
¶ 31 Third, we are persuaded that an association must make
records generated by a third party available to unit owners by
reference to a public entity’s obligations under the Colorado Open
Records Act (CORA). Just as CCIOA entitles unit owners to inspect
certain association records, CORA entitles members of the public to
inspect public records. See § 24-72-201, C.R.S. 2023 (“[A]ll public
records shall be open for inspection by any person at reasonable
times,” except as otherwise provided by law.). “Public records”
include “all writings made, maintained, or kept by” a public entity
“for use in the exercise of functions required or authorized by law or
administrative rule or involving the receipt or expenditure of public
funds.” § 24-72-202(6)(a)(I), C.R.S. 2023 (emphasis added).
¶ 32 On several occasions, Colorado courts have concluded that
records created by or in the possession of third parties nonetheless
constitute public records that must be made available to the public.
See Leonard v. Interquest N. Bus. Improvement Dist., 2022 COA 78,
¶¶ 18-19 (documents that a public entity has a “contractual right to
20
access” from a third party constitute public records it must make
available for inspection); Int’l Bhd. of Elec. Workers Loc. 68 v. Denver
Metro. Major League Baseball Stadium Dist., 880 P.2d 160, 164
(Colo. App. 1994) (documents not “made or kept” by the public
entity, but to which the public entity had “full access” were public
records); see also Denver Post Corp., 255 P.3d at 1091
(“maintaining” a record includes “taking steps to ensure the
physical integrity of the document, updating the information it
contains, or directing another to do the same”); Zubeck v. El Paso
Cnty. Ret. Plan, 961 P.2d 597, 600-01 (Colo. App. 1998) (concluding
that the plaintiffs should have been given access under CORA to the
retirement plan’s financial records, including its bank statements).
¶ 33 In the end, we conclude that the district court erred by
dismissing Seaman’s complaint under C.R.C.P. 12(b)(5). The bank
statements Seaman requested may be records HGA is obligated to
maintain and produce to him under section 38-33.3-317(1)(a) and
(2). Whether the bank statements in fact reflect “receipts and
expenditures affecting the operation and administration of the
association,” § 38-33.3-317(1)(a), is a factual question that cannot
be resolved against Seaman at this stage of the proceedings. See
21
Denver Post Corp., 255 P.3d at 1083 (“We accept all factual
allegations in the complaint as true and view them in the light most
favorable to the plaintiff.”). Seaman’s claim must be reinstated.
III. Attorney Fees and Costs
¶ 34 In the district court, HGA requested and was awarded attorney
fees and costs pursuant to section 38-33.3-123(1)(c), C.R.S. 2023.
Under that provision, the prevailing party in any action to enforce
or defend the provisions of CCIOA is entitled to reasonable attorney
fees and costs. But because there has been no resolution on the
merits, there is not yet a prevailing party. See DeJean v. Grosz,
2015 COA 74, ¶¶ 44-45; see also C.R.C.P. 54(d). Accordingly, we
reverse the district court’s order awarding HGA its attorney fees and
costs. And for the same reason, we decline to award appellate
attorney fees to either party.
IV. Disposition
¶ 35 We reverse the district court’s judgment and its order
awarding attorney fees and costs to HGA, and we remand for
further proceedings consistent with this opinion.
JUDGE TOW and JUDGE SCHOCK concur.
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