On July 24, 2025, the Colorado Court of Appeals reversed a judgment entered in 2023 against Mark, another lawyer, and their respective clients.
The case arose out of a lawsuit filed by landowners against other landowners in the same subdivision concerning several easements that impacted all landowners in the subdivision. Mark represented one of the defendant landowners. As part of his defense of his clients, Mark asserted equitable defenses that included equitable estoppel, unclean hands, laches, and waiver.
At the conclusion of the 2023 trial, Judge Peter Michaelson ruled that the equitable defenses asserted by Mark’s clients and their co-Defendant were frivolous. Without giving the parties or their counsel a chance to heard, Judge Michaelson sua sponte ordered the Defendants and their lawyers to pay ½ of the Plaintiffs’ attorney’s fees. Mark, the other lawyer, and their clients appealed the judgment entered against them in the amount of approximately $100,000.00.
In reversing that judgment the Court of Appeals held that the trial judge erred in ruling that the validity of an easement could not be affected by equitable theories. The appellate court ruled that the trial court had “misconstrued the defendants’ theory of defense.” As to the trial court’s apparent conclusion that equitable estoppel could never bar enforcement of written covenants, the appellate court wrote, “… we are unaware of any case that supports that proposition.”
The Court of Appeals also ruled that the trial judge had erred in appointing a receiver to manage certain easements for the subdivision’s twelve property owners. The appellate court wrote that the trial court lacked authority to appoint a receiver as to the lot owners that had not answered the Complaint and wrote that the terms of the receivership were “arbitrary.”
The appellate court rejected the Defendants’ claims that the trial judge had been biased. The appellate court wrote that while the trial judge’s comments toward the Defendants and their counsel were “somewhat unprofessional and needlessly dramatic,” those comments were not sufficient to show judicial bias.
The appellate court remanded the case for a determination of the amount of attorney’s fees, if any, the Defendants must pay on their counterclaims. Judge Michaelson has since left the bench.
