COLORADO COURT OF APPEALS
2016COA143
Court of Appeals No. 15CA0206
City and County of Denver District Court No. 14CV32364
Honorable Robert L. McGahey, Judge
R. Parker Semler,
Plaintiff-Appellant,
v.
Bruce S. Hellerstein; Perfect Place, LLC; Bruce S. Hellerstein, CPA P.C.; Charles
Bewley; and Berenbaum Weinshienk, P.C.,
Defendants-Appellees.
ORDERS AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE ASHBY
Webb and Plank*, JJ., concur
Prior Opinion Announced August 4, 2016, WITHDRAWN
Perfect Place Defendants’ Petition for Rehearing GRANTED
All Other Petitions for Rehearing DENIED
Announced October 6, 2016
Semler and Associates, P.C., R. Parker Semler, Jeremy Goldblatt, Matthew
Nelson, Denver, Colorado, for Plaintiff-Appellant
Podoll & Podoll, P.C., Robert Kitsmiller, Robert Podoll, Richard Podoll,
Greenwood Village, Colorado, for Defendants-Appellees Bruce S. Hellerstein;
Perfect Place, LLC; Bruce S. Hellerstein, CPA P.C.
Wheeler Trigg O’Donnell LLP, Carolyn J. Fairless, Kendra N. Beckwith, Denver,
Colorado, for Defendants-Appellees Charles Bewley; and Berenbaum
Weinshienk, P.C.
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 Plaintiff, R. Parker Semler, appeals from the trial court’s order
granting defendants’, Bruce S. Hellerstein; Perfect Place, LLC; Bruce
S. Hellerstein, CPA P.C.; Charles Bewley; and Berenbaum
Weinshienk, P.C., motions to dismiss and denying Semler’s motion
to amend his complaint. Semler also appeals from the trial court’s
denial of his motion for postjudgment relief and its award of
attorney fees and costs in defendants’ favor. We affirm in part,
reverse in part, and remand the case for further proceedings.
I. Background
¶2 Semler and Perfect Place are both members of the 1940 Blake
Street Condominium Association (Association). Hellerstein owns
and controls both Perfect Place and Bruce S. Hellerstein, CPA P.C.
Hellerstein also served as treasurer of the Association when he
allegedly committed the conduct discussed below. Bewley is an
attorney employed by the law firm of Berenbaum Weinshienk, PC.
At all relevant times, Bewley represented Hellerstein and his two
corporate entities.
¶3 In a related quiet title action, Perfect Place asked the court to
determine that it was the rightful owner of parking spaces C, D, and
E. According to Semler, he had acquired title to parking space C
1
over seven years ago. He also acquired title to parking space D
through a deed of trust and significant consideration. Perfect Place
asserted that it had acquired title to all three parking spaces via
quitclaim deed from John Watson and two entities that Watson
controlled in June 2011. The court presiding over the quiet title
action determined that Semler owned spaces C and D, while Perfect
Place owned parking space E.
¶4 Perfect Place appealed and that appeal is currently pending
before another division of this court.
¶5 In a separate action, Semler filed a complaint, which was later
amended, alleging breach of fiduciary duty against Hellerstein,
aiding and abetting that breach against Bewley, and civil conspiracy
against all defendants. Defendants filed two motions to dismiss,
one based on C.R.C.P. 12(b)(5) and one based on lack of standing.
Soon thereafter, Semler moved to amend his complaint a second
time, adding claims for fraud, nondisclosure and concealment,
negligent misrepresentation, negligent supervision, vicarious
liability, and breach of contract. He also more clearly explained
that he was seeking damages for the lost income opportunities he
2
suffered as a result of having to defend against the quiet title
action.1
¶6 The court granted the motions to dismiss and denied Semler’s
second motion to amend. The court also awarded attorney fees in
favor of defendants.
II. Timeliness of the Notice of Appeal
¶7 Defendants assert that Semler’s notice of appeal was untimely
and, therefore, we lack jurisdiction to consider the appeal. We
disagree.
¶8 “The timely filing of a notice of appeal is a jurisdictional
prerequisite to appellate review.” Estep v. People, 753 P.2d 1241,
1246 (Colo. 1988). Under C.A.R. 4(a), the notice of appeal must be
filed “within 49 days of the date of the entry of the judgment,
decree, or order from which the party appeals.”
¶9 As relevant here, one method by which to calculate the forty-
nine-day period is from the date the court grants or denies a Rule
1 In his reply brief on appeal, Semler, for the first time, asserted
damages based on his loss of use of the parking spaces and his
inability to alienate them while the quiet title action is still pending.
We decline to address these arguments as they were never
presented to the trial court and have not been properly raised.
3
59 motion. C.A.R. 4(a). Thus, “[t]he timely filing of a motion
pursuant to C.R.C.P. 59 tolls the time for filing a notice of appeal.”
Goodwin v. Homeland Cent. Ins. Co., 172 P.3d 938, 944 (Colo. App.
2007), as modified on denial of reh’g (Oct. 25, 2007).
¶ 10 Nevertheless, defendants argue that because there was no trial
and Semler made the same arguments in his postjudgment motion
as he had in earlier pleadings, Semler’s motion did not qualify as a
C.R.C.P. 59 motion. They further argue that because Semler asked
the court to vacate its orders of dismissal, the postjudgment motion
could only be construed as a motion to vacate the judgment under
C.R.C.P. 60. And, because a postjudgment motion pursuant to
C.R.C.P. 60 does not toll the time within which to file a notice of
appeal, Semler’s appeal is untimely.
¶ 11 We find the out-of-state cases cited by defendants
distinguishable,2 follow those prior Colorado cases that construe
motions such as Semler’s — filed in cases that ended before a trial
— as motions under C.R.C.P. 59, and conclude that this appeal is
2See Hyde v. Anania,
578 N.W.2d 647 (Iowa 1998); Brown v.
Brown, No. 659,
1988 WL 36360, at *2 (Ohio Ct. App. Mar. 29,
1988); Johnson v. Johnson,
515 A.2d 960, 962 (Pa. Super. Ct.
1986).
4
timely. See SMLL, L.L.C. v. Daly, 128 P.3d 266, 269 (Colo. App.
2005); Small v. Gen. Motors Corp.,
694 P.2d 374,375 (Colo. App.
1984).
¶ 12 Here, the day after the court entered its order dismissing
Semler’s claims, Semler filed a motion for reconsideration pursuant
to C.R.C.P. 59. The court denied the motion about one month later
on December 22, 2014. Exactly forty-nine days later, on February
9, 2015, Semler filed his notice of appeal. Therefore, we conclude
the appeal was timely filed and that we do have jurisdiction to
consider the appeal.
III. Motion to Amend Complaint
¶ 13 Semler contends that the trial court erred by denying his
motion for leave to amend his complaint.
¶ 14 We generally review a trial court’s decision to grant or deny a
motion to amend for an abuse of discretion. See Benton v. Adams,
56 P.3d 81, 85 (Colo. 2002). However, “[w]hen a trial court denies
leave to amend on grounds that the amendment would be futile
because it cannot survive a motion to dismiss, we review that
question de novo as a matter of law.”
Id.
5
¶ 15 Our courts favor a liberal policy toward amending pleadings.
Under C.R.C.P. 15(a), “where leave of court is required to amend a
pleading, ‘leave shall be freely given when justice so requires.’” Civil
Serv. Comm’n v. Carney, 97 P.3d 961, 966 (Colo. 2004) (quoting
C.R.C.P. 15(a)). In determining whether to grant leave, the court
should consider the totality of the circumstances.
Id. Some
grounds for denying a motion to amend include “undue delay, bad
faith, dilatory motive, repeated failure to cure deficiencies in the
pleadings via prior amendments, undue prejudice to the opposing
party, and futility of amendment.” Benton,
56 P.3d at 86.
¶ 16 Here, in its omnibus order dismissing the case, the trial court
denied Semler’s motion to amend his complaint (for the second
time) but stated no basis for doing so other than articulating why
Semler had no standing to pursue any alleged fraud against or
misrepresentation to Mr. Watson, the prior owner of the parking
spaces. And the court’s dismissal of the action was specifically
premised on Semler’s fraud claims. These claims were not included
in Semler’s initial or amended complaint and were new to the
second amended complaint. Therefore, it appears to us that even
though the court denied Semler’s motion to amend, it did in fact
6
consider the second amended complaint when ruling on the motion
to dismiss. Defendants acknowledge this in their answer brief.
¶ 17 We presume, therefore, that the court’s denial of Semler’s
motion to amend was premised on its dismissal of the entire action
and the futility of further proceedings. Thus, we will review the trial
court’s dismissal of the action based on Semler’s second amended
complaint.
IV. Standing
¶ 18 The trial court’s order dismissing the action stated:
[Semler] is not the victim of the alleged fraud
that he claims occurred. . . . [Semler] fails to
offer any evidence to support this claim of
misrepresentation, instead offering conclusory
statements in his Complaint. If Mr. Watson is
the victim of fraud, then it is he who should
sue the Association and/or the individuals for
their role in the alleged misrepresentation.
Due to lack of standing, the other legal issues
addressed in Defendants’ Motions are moot.
¶ 19 We review the trial court’s decision regarding whether a
plaintiff has standing de novo. Barber v. Ritter, 196 P.3d 238, 245
(Colo. 2008). To establish standing, the court must find that the
plaintiff has suffered (1) an injury in fact (2) to a legally protected
interest.
Id. at 245-46. Both prongs must be met. A plaintiff lacks
7
standing to sue for injuries allegedly suffered by someone else. See
Wimberly v. Ettenberg, 194 Colo. 163, 168-69,
570 P.2d 535, 539
(1977); see also Greenwood Vill. v. Petitioners for Proposed City of
Centennial,
3 P.3d 427, 439 (Colo. 2000) (“The third-party standing
rule prevents a party from asserting the claims of third parties who
are not involved in the lawsuit.”).
¶ 20 Here the fraud, concealment, and misrepresentation claims
are all premised on conversations and transactions between Mr.
Watson and defendants. Semler was not involved. He asserts,
however, that the fraudulent conduct was intended to cause
damage to him; that is, to improperly acquire title to his parking
spaces thereby depriving him of their use. Even if we assume that
Semler is correct and that he has standing to assert these fraud-
based claims even though he was not the first-party victim of the
fraud, we nonetheless affirm the trial court’s dismissal of those
claims. See Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe,
107
P.3d 402, 406 (Colo. App. 2004) (we may affirm the trial court’s
ruling on any grounds supported by the record).
¶ 21 Semler alleges that he suffered lost income opportunity
damages as a result of defendants’ fraudulent conduct because he
8
was forced to litigate his right to the parking spaces and was unable
to accept additional clients during that time. To recover damages
for fraudulent conduct, the damages must be a reasonably
foreseeable consequence of the fraud. See Restatement (Second) of
Torts §§ 435A, 548A (Am. Law Inst. 1965); see also Bridge v. Phx.
Bond & Indem. Co., 553 U.S. 639, 656-57 (2008). We conclude that
Semler’s claims for lost opportunity damages are too remote and
unforeseeable to be recoverable. See
id. at 658; Roberts v. Holland
& Hart,
857 P.2d 492, 496-98 (Colo. App. 1993).
¶ 22 Accordingly, we conclude that these claims failed to state a
claim upon which relief could be granted and should have been
dismissed under C.R.C.P. 12(b)(5). The trial court’s dismissal order,
however, fails to address Semler’s remaining, non-fraud-based
claims. Thus, we address them each in turn.
V. C.R.C.P. 12(b)(5)
¶ 23 Because Semler’s remaining claims assert conduct against
him directly, the trial court’s reasoning for dismissal based on lack
of standing does not apply. And because we may affirm the trial
court’s order on any basis supported by the record, we analyze
Semler’s remaining claims under C.R.C.P. 12(b)(5). See Rector v.
9
City & Cty. of Denver, 122 P.3d 1010, 1013 (Colo. App. 2005)
(“When a trial court does not engage in the proper C.R.C.P. 12(b)
analysis, a reviewing court need not remand if it can resolve the
issue as a matter of law.”).
¶ 24 Under C.R.C.P. 12(b)(5), a party may move to dismiss the other
party’s claims for “failure to state a claim upon which relief can be
granted.” The supreme court recently acknowledged a shift in how
Colorado courts should assess C.R.C.P. 12(b) motions to dismiss, so
that Colorado law is more closely aligned with the federal
standards. Warne v. Hall,
2016 CO 50, ¶ 29 (“Although our opinion
today does not result in an amendment to the language of our rules
of procedure, it clearly signals a shift in the considerations
according to which a motion to dismiss is to be evaluated and,
therefore, a change in the terms in which a complaint may have to
be expressed to avoid dismissal.”). Under this standard, “only a
complaint that states a plausible claim for relief survives a motion
to dismiss.”
Id. at ¶ 9 (quoting Ashcroft v. Iqbal,
556 U.S. 662, 679
(2009)).
¶ 25 In contrast, under the old standard, a plaintiff failed to state a
claim upon which relief could be granted when “it appears beyond a
10
doubt that a plaintiff can prove no set of facts in support of her
claim which would entitle her to relief.” Pub. Serv. Co. of Colo. v.
Van Wyk, 27 P.3d 377, 385-86 (Colo. 2001). See also Dotson v.
Bernstein,
207 P.3d 911, 912 (Colo. App. 2009) (“A complaint may
not be dismissed for failure to state a claim so long as the pleader is
entitled to some relief upon any theory of law.”).
¶ 26 Warne suggests that the new standard applies retroactively,
and despite having been ordered to address this issue at oral
argument, neither party argued to the contrary. However, even
under the prior and more lenient “no set of facts” standard, we
conclude that Semler has failed to state a claim for all but one of
his claims, as discussed below.3 Regardless, in reviewing Semler’s
claims under Rule 12(b)(5), we view all allegations in the complaint
as true and in the light most favorable to the nonmoving party. See
Bly v. Story,
241 P.3d 529, 533 (Colo. 2010).
3 Because we do not apply the Warne standard, we reject Semler’s
request to remand and allow him to amend yet again in an effort to
satisfy the new standard.
11
A. Civil Conspiracy
¶ 27 Semler contends that defendants conspired with each other to
obtain his parking spaces. We find as a matter of law that Semler
is not entitled to relief on a civil conspiracy claim.
¶ 28 Conspiracy requires “(1) two or more persons, and for this
purpose a corporation is a person; (2) an object to be accomplished;
(3) a meeting of the minds on the object or course of action; (4) one
or more unlawful overt acts; and (5) damages as the proximate
result thereof.” Walker v. Van Laningham, 148 P.3d 391, 396 (Colo.
App. 2006) (quoting Jet Courier Serv., Inc. v. Mulei,
771 P.2d 486,
502 (Colo. 1989)).
¶ 29 It is a well-settled tenet of corporate law that a director cannot
conspire with the corporation which he serves. See, e.g., Pittman v.
Larson Distrib. Co.,
724 P.2d 1379, 1390 (Colo. App. 1986) (“A
corporation and its employees do not constitute the ‘two or more
persons’ required for a civil conspiracy, at least if the employees are
acting on behalf of the corporation and not as individuals for their
individual advantage.”) (citations omitted). However, Semler
claimed that “at all times relevant to the allegations” in his
complaint, Bewley was the legal representative for and an agent of
12
Perfect Place and Hellerstein.4 And whether an attorney who is
acting within the scope of his representation may conspire with his
client is an issue of first impression in Colorado.
¶ 30 Other courts that have addressed the issue generally hold that
an attorney acting within the scope of his employment cannot
conspire with his client unless the attorney has also acted for his
sole personal benefit. See, e.g., Farese v. Scherer, 342 F.3d 1223,
1231 (11th Cir. 2003); Heffernan v. Hunter,
189 F.3d 405, 412-13
(3d Cir. 1999). This limitation reflects that “[t]he right of a litigant
to independent and zealous counsel is at the heart of our adversary
system and, indeed, invokes constitutional concerns.” Heffernan,
189 F.3d at 413. Further, “[c]ounsels’ conduct within the scope of
representation is regulated and enforced by disciplinary bodies
established by the courts. Abuses in litigation are punishable by
sanctions administered by the courts in which the litigation
occurs.”
Id.
4 The CPA firm, for which Hellerstein was the principal, was also
referenced in the complaint as one of the “Perfect Place defendants”
who Semler claimed conspired to obtain ownership of the parking
spaces. All of these defendants were allegedly represented by
Bewley.
13
¶ 31 Even so, other courts have recognized additional bases for a
viable conspiracy claim, such as when the attorney engages in
fraud. See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871 (8th
Cir. 2002); Marshall v. Fenstermacher,
388 F. Supp. 2d 536, 553
(E.D. Pa. 2005); see also Astarte, Inc. v. Pac. Indus. Sys., Inc.,
865 F.
Supp. 693, 708 (D. Colo. 1994); Moore v. Weinberg,
644 S.E.2d 740,
750 (S.C. Ct. App. 2007) (“[A]n attorney may be held liable for
conspiracy where, in addition to representing his client, he
breaches some independent duty to a third person.”) (citation
omitted), aff’d,
681 S.E.2d 875 (2009).
¶ 32 Here however, as stated in supra Part IV, Semler has neither
pleaded facts to support a fraud claim nor has he alleged that
Bewley acted for his own personal gain or otherwise acted outside
the scope of his legal representation. See Doherty v. Am. Motors
Corp.,
728 F.2d 334, 339–40 (6th Cir. 1984) (concluding that the
plaintiff did not present any evidence proving the existence of a
conspiracy between the defendant and the defendant’s attorneys
because the attorneys “were motivated not by personal concerns
but by concerns for their clients”). To the contrary, Semler asserted
that “at all times relevant” to the claims, Bewley was acting within
14
the scope of his representation of the Perfect Place defendants and
his employment as an employee for defendant law firm Berenbaum
Weinshienk. Thus, we defer deciding exactly what must be alleged
to plead a viable claim against a lawyer for allegedly conspiring with
the lawyer’s client. See Alexander v. Anstine, 152 P.3d 497, 499
(Colo. 2007) (“Because Anstine lacked standing to bring the aiding
and abetting claim against the attorney defendants, we do not reach
the second issue regarding whether an attorney can be held liable
for aiding and abetting a breach of fiduciary duty to a non-client,
. . . thereby leaving this issue for another day.”).
¶ 33 Therefore, we conclude that this allegation fails to state a
claim upon which relief can be granted and should be dismissed.
B. Breach of Fiduciary Duty
¶ 34 Semler contends that Hellerstein, as treasurer of the
Association, breached his fiduciary duty to Semler, a member of the
Association, by engaging in self-serving and fraudulent conduct.
We disagree.
¶ 35 Generally, determining the existence of a fiduciary duty is a
question of fact; however, certain relationships may give rise to a
fiduciary duty as a matter of law. Mintz v. Accident & Injury Med.
15
Specialists, PC, 284 P.3d 62, 68 (Colo. App. 2010), as modified on
denial of reh’g (Feb. 24, 2011), aff’d,
2012 CO 50. Thus, we review
such determinations de novo. Id.; see Command Commc’ns, Inc. v.
Fritz Cos., Inc.,
36 P.3d 182, 186 (Colo. App. 2001) (“The court
determines as a matter of law the nature and scope of the duty
owed by a fiduciary.”).
¶ 36 “[A] fiduciary relationship exists between two persons when
one of them has undertaken a duty to act for or to give advice for
the benefit of another on matters within the relationship’s scope.”
Mintz,
284 P.3d at 68. Thus, generally, a homeowners’ association
owes a fiduciary duty to its members. McShane v. Stirling Ranch
Prop. Owners Ass’n, Inc.,
2015 COA 48, ¶ 30 (cert. granted Jan. 11,
2016). And, “[u]nder section 38–33.3–303(2)(a), [C.R.S. 2015,] ‘[i]f
appointed by the declarant, in the performance of their duties, the
officers and members of the executive board are required to exercise
the care required of fiduciaries of the unit owners.’”
Id. (quoting
§ 38-33.3-303(2)(a)). Accordingly, much like officers of a
corporation, the board members of a homeowners association owe a
fiduciary duty to both the association and its members. See
Michaelson v. Michaelson,
939 P.2d 835, 841-42 (Colo. 1997); Van
16
Schaack Holdings, Ltd. v. Van Schaack, 867 P.2d 892, 897 (Colo.
1994).
¶ 37 This duty, however, is not all encompassing. When acting on
behalf of the association or in their official capacity as board
members, or when engaging in transactions involving the
association but in their individual capacities, that fiduciary duty
exists and the board members are bound by it. But, when engaged
in transactions with other association members or with members of
the public at large, where those transactions are not conducted on
behalf of the association and do not involve the association, there
exists no fiduciary duty. See Mintz,
284 P.3d at 68-69 (“[W]here the
parties are engaged in an arm’s-length business transaction
without any special relationship of trust and confidence and
without one party assuming a duty to act in the other party’s best
interest, a fiduciary duty does not exist.”).
¶ 38 Here, Hellerstein was not acting in his role as treasurer when
he engaged in the allegedly fraudulent conduct. And the
Association was not involved in or affected by these transactions
with Watson or Semler. Rather, these transactions involved
individuals, acting in their individual capacities, unrelated to the
17
interests of the Association. We are not persuaded that Hellerstein
was bound by his fiduciary duties when acting wholly outside the
scope of his board position.
¶ 39 Therefore, under the circumstances here, Hellerstein did not
owe a fiduciary duty to Semler. Accordingly, we conclude that
Semler has failed to state a claim upon which relief could be
granted.
C. Aiding and Abetting Breach of Fiduciary Duty
¶ 40 Semler contends that Bewley aided and abetted Hellerstein in
breaching his fiduciary duty. We disagree.
¶ 41 Because we have concluded that Hellerstein did not owe
Semler a fiduciary duty under these circumstances, Bewley could
not, as a matter of law, have aided and abetted him in breaching it.
Therefore, we conclude that Semler has failed to state a claim upon
which relief can be granted.
D. Negligent Supervision
¶ 42 Semler contends that Bewley’s law firm, Berenbaum
Winshienk, negligently supervised Bewley, which caused Semler to
have to litigate his rights to the parking spaces in the quiet title
action. We disagree.
18
¶ 43 An employer may be directly liable for its negligent supervision
of an employee where “(1) the defendant owed the plaintiff a legal
duty to supervise others; (2) the defendant breached that duty; and
(3) the breach of the duty caused the harm that resulted in
damages to the plaintiff.” Settle v. Basinger, 2013 COA 18, ¶ 23.
To determine whether the employer owed a duty to a particular
plaintiff, we consider “the risk involved, the foreseeability and
likelihood of injury as weighed against the social utility of the
actor's conduct, the magnitude of the burden of guarding against
injury or harm, and the consequences of placing the burden upon
the actor.” Id. at ¶ 25.
¶ 44 The duty only arises where the employer has reason to know
that the employee is likely to harm others “because of ‘his [or her]
qualities’ and ‘the work or instrumentalities entrusted to him [or
her].’” Id. at ¶ 26 (quoting Destefano v. Grabrian,
763 P.2d 275, 287
(Colo. 1988)) (emphasis omitted); see Keller v. Koca,
111 P.3d 445,
450 (Colo. 2005), as modified on denial of reh’g May 16, 2005 (“[I]n
order for a duty of care to exist, there must be a connection
between the employer’s knowledge of the employee’s dangerous
propensities and the harm caused.”). The connection between the
19
employer’s knowledge and the employee’s dangerous propensities is
crucial to establishing a duty. Keller, 111 P.3d at 450.
¶ 45 For the reasons we have stated with respect to each claim,
Semler has not alleged any tortious conduct by Bewley, let alone
conduct about which his employer knew and negligently failed to
prevent. Therefore, we conclude that Semler has failed to state a
claim upon which relief can be granted.
E. Vicarious Liability
¶ 46 Semler also contends that Berenbaum Weinshienk is
vicariously liable for the tortious acts of Bewley, who was, at all
times, acting within the scope of his employment. We disagree.
¶ 47 Vicarious liability is a special form of secondary liability
whereby an employer is liable for the torts of its employees when
they are acting within the scope of their employment. First Nat’l
Bank of Durango v. Lyons, 2015 COA 19, ¶ 36; Stokes v. Denver
Newspaper Agency, LLP,
159 P.3d 691, 693 (Colo. App. 2006). In
order to find the employer liable, the court must first find the
employee liable. See Arnold By & Through Valle v. Colo. State Hosp.,
Dep’t of Insts.,
910 P.2d 104, 107 (Colo. App. 1995).
20
¶ 48 Again, here, Semler has failed to allege any tortious conduct
committed by Bewley and, thus, there is no conduct for which
Bewley’s employer could be vicariously liable.
¶ 49 Therefore, we conclude that Semler has failed to state a claim
upon which relief can be granted.
F. Breach of Contract
¶ 50 Finally, Semler contends that Berenbaum Weinsheink
breached its contract with the Association by allowing Bewley to
represent one Association member against another.
¶ 51 Semler alleges that the president of the Association “instructed
Bewley that neither he nor Berenbaum Weinshienk was to
represent the . . . Association against any member of the . . .
Association or to represent one member . . . against another” and
that Bewley agreed to those terms. Based solely on the pleading
allegations, we consider this “instruction” as a contract of which
Semler was an intended beneficiary.
¶ 52 Generally, an individual who is not a party to the contract may
not assert a claim for breach of that contract. See Parrish
Chiropractic Ctrs., P.C. v. Progressive Cas. Ins. Co., 874 P.2d 1049,
1056 (Colo. 1994). One exception to this general rule, however, is
21
in the case of third-party beneficiaries. See id.; Smith v. TCI
Commc’ns, Inc., 981 P.2d 690, 693 (Colo. App. 1999). “A third-party
beneficiary may enforce a contract only if the parties to that
contract intended to confer a benefit on the third party when
contracting; it is not enough that some benefit incidental to the
performance of the contract may accrue to the third party.” Everett
v. Dickinson & Co., Inc.,
929 P.2d 10, 12 (Colo. App. 1996).
¶ 53 Here, as a member of the Association, Semler is arguably a
third-party beneficiary of this agreement between Bewley and the
Association. From the facts Semler has alleged, the intent of any
agreement may have been to protect Association members.
However, this question may be illuminated by evidence once the
case goes beyond the pleading stage. See Parrish,
874 P.2d at 1056
(“While the intent to benefit the non-party need not be expressly
recited in the contract, the intent must be apparent from the terms
of the agreement, the surrounding circumstances, or both.”).
¶ 54 We also conclude that Baker v. Wood, Ris & Hames,
Professional Corp.,
2016 CO 5, does not require a different result.
In Baker, the plaintiffs, devisees of a testator’s estate, alleged that
the attorney representing the testator had failed to properly advise
22
the testator and the devisees — as intended third-party
beneficiaries — thus frustrating the testator’s intent to treat all
devisees equally. The supreme court reaffirmed the strict privity
rule and held that an attorney’s liability to a nonclient, for work
performed on behalf of a client, is limited to “circumstances in
which the attorney has committed fraud or a malicious or tortious
act, including negligent misrepresentation.” Id. at ¶ 35.
¶ 55 Unlike in Baker, Semler has not alleged in his breach of
contract claim that the breach occurred because the legal work
performed by Bewely for either the Association or the Perfect Place
defendants was deficient. Instead, Semler alleges that Bewley’s
representation of the Perfect Place defendants in their attempt to
acquire the parking spaces breached the contract between Bewley
and the Association because those defendants’ interests were
adverse to Semler’s. This difference undercuts the policy
considerations identified in Baker as supporting the strict privity
rule.
¶ 56 Therefore, we conclude that Semler has sufficiently pleaded a
third-party beneficiary breach of contract claim under C.R.C.P.
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12(b)(5). Accordingly, we remand the case to the trial court for
further proceedings on this claim.
VI. Attorney Fees
¶ 57 Following its dismissal of Semler’s action, the court awarded
defendants their attorney fees under section 13-17-201, C.R.S.
2015. Semler contends that if we reverse the dismissal order, this
award must necessarily be reversed. We agree in part.
¶ 58 Section 13-17-201 provides:
In all actions brought as a result of . . . the tort
of any other person, where any such action is
dismissed on motion of the defendant prior to
trial under rule 12(b) of the Colorado rules of
civil procedure, such defendant shall have
judgment for his reasonable attorney fees in
defending the action.
An award for fees under this statute is appropriate where the entire
action, not just some of the claims, is dismissed. See State v.
Golden’s Concrete Co., 962 P.2d 919, 925 (Colo. 1998), as modified
on denial of reh’g June 22, 1998; Dubray v. Intertribal Bison Co-op.,
192 P.3d 604, 606-07 (Colo. App. 2008). A division of this court
has further concluded that the statute applies separately to each
defendant. Smith v. Snowmass Vill.,
919 P.2d 868, 873-74 (Colo.
App. 1996). Thus, so long as all claims against a single defendant
24
were dismissed, even though claims against other defendants may
survive C.R.C.P. 12(b) motions, that defendant may recover under
the statute. Id.
¶ 59 Here, we have concluded that only Semler’s breach of contract
claim survives C.R.C.P. 12(b) dismissal. Thus, because that claim
was not pleaded against the Perfect Place defendants, we leave the
attorney fees award to them undisturbed. See Jaffe v. City & Cty. of
Denver,
15 P.3d 806, 813-14 (Colo. App. 2000). But the fees award
under this statute to Bewley and Berenbaum Weinshienk cannot
stand, and we reverse that portion of the court’s order. See Sotelo
v. Hutchens Trucking Co., Inc.,
166 P.3d 285, 287 (Colo. App.
2007) (“[A] defendant may not recover attorney fees under § 13–17–
201 when (1) the plaintiff’s action includes both tort and nontort
claims and (2) the defendant has obtained dismissal of the tort
claims, but not of the nontort claims, under C.R.C.P. 12(b).”).
VII. Appellate Attorney Fees
¶ 60 Berenbaum Weinshienk, Bewley, and Perfect Place have
requested appellate attorney fees under C.A.R. 39.1. Because
Berenbaum Weinshienk and Bewley were only partially successful
on appeal and because we have concluded that they are not entitled
25
to their trial court attorney fees under section 13-17-201, we
further conclude that they are not entitled to appellate attorney
fees. See In re Marriage of Roddy & Betherum, 2014 COA 96, ¶ 32;
Mullins v. Med. Lien Mgmt., Inc.,
2013 COA 134, ¶ 58; cf. Dubray,
192 P.3d at 608.
¶ 61 The Perfect Place defendants filed a Joinder in the Berenbaum
Defendants’ Answer Brief and requested their attorney fees on
appeal under C.A.R. 39.5.5 Because we have affirmed the trial
court’s dismissal of all claims against the Perfect Place defendants
and the award of fees to those defendants in the trial court, we
conclude that the Perfect Place defendants are entitled to recover
their appellate attorney fees. See Kreft v. Adolph Coors Co.,
170
P.3d 854, 859 (Colo. App. 2007).
¶ 62 On remand the trial court shall determine what amount of
appellate attorney fees the Perfect Place defendants should be
awarded.
VIII. Conclusion
5C.A.R. 39.5 was renumbered to C.A.R. 39.1 and amended effective
June 9, 2016. There were no substantive changes made that would
be applicable here.
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¶ 63 We affirm the trial court’s order, albeit partially on different
grounds, dismissing all of Semler’s claims except his claim for
breach of contract. We remand the case to the trial court for
further proceedings on this one claim and for the trial court to
determine the amount of any appellate attorney fees to which the
Perfect Place defendants are entitled. And we affirm the trial court’s
order awarding attorney fees to the Perfect Place defendants, but
reverse the award of attorney fees to the remaining defendants.
JUDGE WEBB and JUDGE PLANK concur.
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