* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 24 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

GREGORY BURCHER,

Plaintiff-Appellant,

v. QUINCY HILL TOWNHOUSE ASSOCIATION and JUDY LOTT,

Defendants-Appellees. Nos. 00-1092 & 00-1424 (D.C. No. 98-WM-672) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted without oral argument.-2-

Plaintiff Gregory Burcher brought suit against his homeowners’ association and one of its representatives, asserting violation s of his constitutional rights, federal law, and state tort law. Some of plaintiff’s claims were settled or withdrawn. On the remainder, the district court gr anted summary judgment in favor of defendant Quincy Hill Townhouse Associatio n and granted defendant Judy Lott’s motion to dismiss. The court also asse ssed attorney’s fees in the amount of $54,066.71 against plaintiff. He appeals . We have jurisdiction under 28 U.S.C. § 1291. The parties are familiar with the facts and we need not repeat them here. “We review the district court’s grant of summary ju dgment de novo, applying the same legal standard used by the district court.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is proper if the moving party show s that “there is no genuine issue as to any material fact and that the moving p arty is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When ap plying this standard, we view the evidence and draw reasonable inferences therefr om in the light most favorable to the nonmoving party.” Simms , 165 F.3d at 1326. Because the legal sufficiency of a complaint is a q uestion of law, we also review de novo a dismissal under Fed. R. Civ. P. 12 (b)(6) for failure to state a claim. Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236-3-

(10th Cir. 1999). A court considering a Rule 12(b) (6) motion accepts all well-pleaded allegations in the complaint as true, viewing them in the light most favorable to the nonmoving party. Id. “A 12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff c an prove no set of facts in support of his claim which would entitle him to relief.” Id. (quotation omitted). Plaintiff argues that: (1) a homeowners’ associati on is the functional equivalent of a municipality with general governmen tal powers over its members such as to act under color of law; (2) the districtcourt improperly assessed attorney’s fees against him; (3) Colo. Rev. Stat. § 13-17-201 cannot be applied to this case and does not support an award of attorney’s fees against him; (4) the district court’s order is inadequate to est ablish the reasonableness of attorney’s fees. We have carefully reviewed the district court’s dec isions under the applicable standards in light of the parties’ mater ials and the record on appeal. We are unpersuaded by plaintiff’s claims of error, and affirm for substantially the same reasons as those set forth by the districtcourt. AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge