* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously to grant the parties’ request for a decision 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 violations 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withdrawn.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 granted summary judgment in

favor of defendant Quincy Hill Townhouse Association and granted defendant

Judy Lott’s motion to dismiss. The court also assessed 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 judgment 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 shows that “there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56(c). “When applying this standard, we view

the evidence and draw reasonable inferences therefrom in the light most favorable

to the nonmoving party.” Simms, 165 F.3d at 1326. 

Because the legal sufficiency of a complaint is a question 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 can 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’ association is the functional

equivalent of a municipality with general governmental powers over its members

such as to act under color of law; (2) the district court 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 establish the reasonableness of

attorney’s fees.

We have carefully reviewed the district court’s decisions under the

applicable standards in light of the parties’ materials 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 district court.

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge