By: Alan Schindler, Esq., Anna Goldman, Esq., Brittany Fria *, and Hanna Woods *
Potts v. Gaia Children LLC
Division VII, Opinion by Judge Grove; Judges Tow and Lipinsky concur
Decision: Affirmed in part and reversed in part.
Procedure: On appeal from District Court, Larimer County, Judge Findley
Factual Background and District Court Holding
In an employment dispute, Defendant Gaia Children LLC d/b/a The Learning Experience (“Gaia”) hired Plaintiff Debbi Potts to work as compliance specialist. In this role, Potts was a mandatory reporter of child abuse. In May 2022, she raised concerns about “unsafe practice[s] against the children” with Sara Bronwell, Gaia’s owner, and Jennifer Wright, the director of The Learning Experience Center.
After the Learning Experience Center failed to implement new practices, Potts reported Gaia to the Colorado Department of Licensing and Larimer County Child Protection. Investigators interviewed Potts the following week. Wright inquired about the interview, and Potts responded that she “could not speak about what was discussed.” Wright then instructed Potts to “immediately” go home. She sent a text message to Potts the next morning, saying Potts did not need to come in that day and to “[e]njoy a nice long holiday weekend.” The texts also contained details about when Potts could pick up her paycheck, and Potts understood the exchange to mean that she had been fired. No one questioned her when she returned her work items owned by Gaia, and on Tuesday, July 5, Wright notified the staff that Potts was no longer working for the Learning Experience Center.
Potts sued Gaia, alleging she had been wrongfully discharged in violation of public policy. Gaia filed a motion to dismiss in response, arguing that Potts had not adequately alleged that she was “terminated” or that she “reasonably believe[d] she had been terminated.” Gaia contended that the only inference supported by the facts in Potts’ complaint was that she voluntarily resigned.
The Larimer County District Court granted Gaia’s motion to dismiss, relying primarily on the text message telling Potts to “[e]njoy a nice long holiday weekend.” The district court concluded that while Potts may have assumed her employment had been terminated, the facts also supported a finding of resignation. The court also held that Potts had not been constructively discharged, as none of the allegations in her complaint supported a finding that the working conditions were intolerable.
Issue: whether Potts was “actually discharged,” or, alternatively, “constructively discharged,” from the Learning Experience Center.
Absent any published Colorado decision articulating a test for “actual discharge,” the Court of Appeals adopted a definition applied by federal courts: “an actual discharge occurs when the employer uses language or engages in conduct that would logically lead a prudent person to believe [their] tenure had been terminated.” The test is objective and considers the circumstances from the perspective of a reasonable employee. The Court concluded that the allegations in Potts’ complaint, if proved, could support a finding that she was actually discharged within the meaning of this definition. Moreover, because the district court was considering a motion to dismiss, it should have resolved any ambiguities in a light most favorable to Potts. As such, Potts stated a claim upon which relief could be granted.
However, the court also held that Potts was not constructively discharged. To prove constructive discharge, the plaintiff must establish deliberate action on the part of an employer that creates working conditions so intolerable that the employee has no choice but to resign. The conditions giving rise to the resignation must be “sufficiently extraordinary and egregious” to overcome the motivation of a reasonable employee to remain at their job. The court reasoned that while the allegations in Potts’ complaint may have made her uncomfortable, these events did not support a finding that Gaia created an intolerable work environment.
Roane v. Elizabeth Sch. Dist.
Division IV, Opinion by Judge Kuhn, Judges Navarro and Shock Concur
Decision: Affirmed.
Procedure: On appeal from District Court, Elbert County, Judge Slade
Factual Background and District Court Holding
Plaintiff Matt Roane is an attorney who reviews meeting agendas and recordings of local public bodies across the state for their compliance with the Colorado Open Meetings Law (the “OML”). If he perceives a potential violation, he sues the public body as a pro se plaintiff. In this case, Roane alleged that Elizabeth School District (the “School District”) improperly convened in a private executive session for the purpose of seeking legal advice during a public meeting. Roane claimed that this conduct violated Section 24-6-402(4), C.R.S. 2023, because the School District did not disclose the matter it intended to discuss in the private executive session.
The School District filed a motion to dismiss the complaint, contending that Roane lacked standing because, as a resident of a distant county roughly 300 miles away from the district, he suffered no injury in fact from the alleged violation. The Elbert County District Court denied the motion, reasoning that because Roane is a citizen of Colorado, “he has a legally protected interest in having public bodies conduct business openly in conformity with provisions of the [OML].”
Issue: whether a plaintiff has standing to sue a local public body for a violation of the OML when the plaintiff has not pleaded meaningful connections to said local body.
The Court of Appeals agreed with the district court and concluded that a plaintiff has standing in these circumstances. To establish standing in Colorado, the plaintiff must have suffered an injury in fact to a legally protected interest. The court held that Section 24-6-402(9)(a), C.R.S. 2023, creates a legally protected interest in favor of every Colorado resident in having “public bodies conduct public business in compliance with the OML.” Accordingly, Roane set forth a sufficient injury in fact in alleging that the School District violated that interest.
Bullington v. Barela, 2024COA56
Division VI, Opinion by Judge Yun, Judges Welling and Lum concur.
Decision : Judgment reversed and case remanded with directions.
Procedure : On appeal from Weld County District Court, Judge Lyons.
Factual background and district court holding :
The plaintiff, Bullington, was involved in a car accident with the defendant, Barela, in December 2016 where Barela rear-ended Bullington’s car. at the hospital, Bullington reported tenderness in her neck and pain in her head and abdomen. Bullington was pregnant at the time of the accident and was thus limited in her recovery options. Bullington was finally cleared for injections in October 2018 but became pregnant again before the injections could be performed. Bullington’s undisputed testimony was that she and her husband “were definitely preventing” pregnancy.
Bullington sued Barela in November 2019, asserting claims for negligence and negligence per se. During the jury instruction conference, Bullington’s counsel objected to the proposed jury instruction on the failure to mitigate damages. Bullington’s counsel argued that there was no evidence to support it.
However, the district court overruled the objection and instructed the jury on the affirmative defense to mitigate damages. As the basis for providing the instruction, the district court found that the plaintiff’s “voluntary decision” to get pregnant following the accident could be evidence of her failure to mitigate damages because “the fact that she was both pregnant and nursing delayed her treatment.”
Bullington appealed the judgment entered on a jury verdict. Bullington contends that the district court erred by instructing the jury on the affirmative defense because there was no evidence that she failed to take reasonable steps to mitigate her damages.
Issue : Whether the district court erred in instructing the jury on the affirmative defense to mitigate damages?
The Court of Appeals held the record does not support the district court’s finding that the plaintiff “voluntarily” elected to get pregnant and thereby acted unreasonably after the accident. Additionally, the division concluded that the instructional error was prejudicial, requiring a new trial on damages. Furthermore, the division held that a personal injury plaintiff, for whom an otherwise recommended medical treatment is contraindicated while pregnant or nursing, has no duty to terminate the pregnancy or forgo nursing in order to receive the treatment.
Riggs Oil & Gas Corp. v. Los Feliz Oil Co., Inc., 2024COA57
Division VII, Opinion by Judge Lipinsky, Judges Tow and Grove concur.
Decision : Appeal dismissed.
Procedure : On appeal from City and County of Denver District Court, Judge Moses.
Factual background and district court holding :
Under C.A.R. 4(a)(1), a party to a civil case seeking to appeal the district court’s judgment or order to a Colorado appellate court must file a notice of appeal no later than forty-nine days from the date of the judgment or order. The appellate court will accept an untimely notice of appeal upon a showing that the party seeking to commence the appeal missed the filing deadline due to excusable neglect.
Defendant, Jonah Energy LLC, appealed the district court’s judgment in favor of plaintiffs. Pursuant to C.A.R. 4(a)(1), Jonah Energy’s notice of appeal was due no later than March 13, 2023, forty-nine days from when the judgment was entered on January 23, 2023. On March 13, the defendant’s legal assistant selected an option in the e-filing system to commence a new case filing in the district court, rather than filing a notice of appeal with the appellate court. The next day, the defendant’s counsel filed in the appellate court the notice of appeal.
Jonah Energy argued that, in determining excusable neglect, the court must consider prejudice to the parties as part of the analysis because Jonah Energy would be significantly prejudiced if not permitted to proceed with its appeal despite the untimely filing.
Issue : Whether the Colorado appellate courts consider prejudice to the parties in deciding whether to accept an untimely notice of appeal in a civil case on grounds of excusable neglect under C.A.R. 4(a)(4) and if so, under what circumstances?
The Court of Appeals held that the court does not consider prejudice to the parties when determining whether the late filing of a notice of appeal under C.A.R. 4(a) was attributable to excusable neglect. The Court relied on cases that expressly address how C.A.R. 4(a) does not mention prejudice at all. Further, while Colorado courts have considered prejudice in conjunction with excusable neglect, they view prejudice and excusable as distinct factors rather than treating prejudice as a component to excusable neglect.
The Court held that the correct standard for evaluating excusable neglect is twofold: 1) the court determines that the neglect was excusable and 2) analyzes whether it should exercise its discretion to accept the untimely notice of appeal. Under this standard, the Court concluded that the appellant’s untimely notice of appeal was not a result of excusable neglect when the attorney failed to read the district court’s submission receipt showing that the legal assistant had filed the notice in the wrong court.
Foothills v. Board of County Commissioners (No. 23CA0686)
Division VI, Opinion by Judge Schutz; Judges Freyre and Lipinsky concur.
Decision: Affirmed.
Procedure: On appeal from Jefferson County District Court, Judge Robert Lochary.
Factual background and district court holding:
Plaintiff Foothills Park and Recreation District (“Foothills”) requested to include certain real property (the “Property”) in its service area. The Property was already included within the boundaries of Defendants-Intervenors Red Rocks Centre Metropolitan District No. 1 (“RRC 1”) and Red Rocks Centre Metropolitan District No. 2 (“RRC 2”). RRC 1 and 2 are special districts organized under the Special Districts Act (the “Act”). §§ 32-1-101 to -1807, C.R.S. 2023. Foothills is a park and recreation district authorized to provide park and recreational facilities within its boundaries. § 32-1-103(14). RRC 1 and 2 are metropolitan districts authorized, as relevant here, to provide park and recreational facilities within their respective boundaries.
Defendant, the Board of County Commissioners (the “Board”), denied Foothills’ request to include the Property in its service area on the grounds that because the RRC districts had the ability to provide park and recreation services for the area and the RRC districts did not consent to the inclusion.
The district court affirmed the Board’s denial of the request, holding that section 32-1-107 applies. Section 32-1-107 does not allow special districts to overlap unless the existing district whose property will be overlapped consents to the inclusion.
Issue: Whether Section 32-1-107, C.R.S. 2023, applies to a request for inclusion of property made by an existing special district.
The Court of Appeals ultimately held that section 32-1-107 applies to an existing district’s request to include property that is already located within another special district that is authorized to provide the same type of services as the district requesting the information.
The Court rejected Foothills’ argument that section 32-1-107 only applies when a special district is being organized or when a special district expands its services into an existing special district that already provides the same services, instead opting to interpret the section within the entire statutory context of the Act. Section 32-1-107(3)(a) defines an “overlapping special district” as “a new or existing special or metropolitan district located wholly or partly within an existing special or metropolitan district.” Foothills’ requests for inclusion were essentially requests for authorization to provide the same services as RRC 1 and 2 in an overlapping area. Therefore, Foothills meets the definition of an “overlapping special district” and section 32-1-107(3) applies.
VOA Sunset v. D’Angelo (23CA0458)
Division I, Opinion by Judge Gomez; Judges Jones and Harris concur.
Decision: Reversed and remanded.
Procedure: On appeal from Denver County, Judge Renee Goble.
Factual background and district court holding:
The Colorado state statute governing the early dismissal of strategic lawsuits against public participation (SLAPP), commonly known as the anti-SLAPP statute, establishes procedures for resolving special motions to dismiss early in a case, allowing courts to dismiss a “cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States constitution or the state constitution in connection with a public issue” unless the court determines that the plaintiff has established a reasonable likelihood of prevailing on the claim. § 13-20-1101(3)(a), C.R.S. 2023. It also allows for the immediate appeal of orders granting or denying such special motions to dismiss. § 13-20-1101(7). The anti-SLAPP statute provides that orders granting or denying special motions to dismiss are “appealable to the Colorado court of appeals.” § 13-20-1101(7).
The underlying proceeding is a forcible entry and detainer (FED) action brought by VOA Sunset Housing LP (the landlord) against Scott D’Angelo (the tenant). The landlord sought to evict the tenant from his federally subsidized apartment unit for various reasons, some which included posting statements on Facebook, but also included other reasons like harassing other tenants. The night before the bench trial, the tenant filed a special motion to dismiss. The court denied the motion, reasoning that the anti-SLAPP statute doesn’t apply in FED actions and that the landlord’s claim is premised on a breach of contract rather than on any free speech or petitioning rights.
The tenant immediately filed an appeal in the Court of Appeals and requested a stay of the trial. While the appeal was pending, the county court entered judgment in favor of the landlord on grounds unrelated to the Facebook posts. The tenant appealed the judgment to the district court. The district court reversed the judgment on the basis that the landlord’s pre-filing notice to quit hadn’t included any grounds for eviction other than the Facebook posts and, thus, the posts were the only basis that could support the eviction; and the county court on remand scheduled a new trial, limited to the Facebook posts, which the Court of Appeals court stayed.
Issues: 1) Whether the anti-SLAPP statute applies to actions in county court; 2) Whether the anti-SLAPP statute applies to forcible entry and detainer actions; 3) Whether appeals from special motions to dismiss in county court are to be filed in the Court of Appeals; 4) Whether the anti-SLAPP statute is confined to defamation and related tort claims; and 5) Whether the county court erred in dismissing this action.
First, the division determined that the anti-SLAPP statute applies to actions in county court. Thus, special motions to dismiss under the statute may be filed in and resolved by county courts. When describing court proceedings on a special motion to dismiss, the anti-SLAPP statute is very broad, repeatedly referring to “the court” without specifying what type of court, suggesting that such a motion could be filed in and resolved by a county court as well as a district court. See, e.g., § 13-20-1101(3)-(4), (6). The division could not find any language in the statute that excludes county courts.
Second, the Court of Appeals determined that the anti-SLAPP statute applies to FED actions if the actions arise from protected speech or petitioning in connection with a public issue. In determining the opposite, the county court reasoned that in an FED action, the court must conduct a hearing within ten days after an answer is filed, see § 13-40-113(4)(a), C.R.S. 2023, while under the anti-SLAPP statute, a special motion to dismiss generally must be filed within sixty-three days after service of the complaint and must be set for a hearing within twenty-eight days after service of the motion, § 13-20-1101(5). Thus, the county court found the two statutes conflict with each other. However, the Court concluded that it is possible for a court to comply with both of those deadlines, especially considering that a court can extend an FED trial date if either party demonstrates good cause. Because there is no statutory conflict, the anti-SLAPP statute applies to FED cases.
Third, the Court determined that all appeals from rulings on special motions to dismiss — even those coming from county court — are to be filed in the court of appeals. There is no ambiguity in the language of the anti-SLAPP statute: orders granting or denying special motions to dismiss are “appealable to the Colorado court of appeals pursuant to section 13-4-102.2.” § 13-20-1101(7).
Fourth, the division determined that the anti-SLAPP statute is not confined to defamation and related tort claims but, rather, applies to any type of claim that arises from protected speech or petitioning in connection with a public issue, reasoning that whether an action falls within the scope of the anti-SLAPP statute doesn’t depend on what type of claim is pleaded; rather, it depends on the conduct underlying the claim.
Finally, the division concluded that the county court erred in prematurely denying the special motion to dismiss. The division remanded the case back to the county court to apply the two-step anti-SLAPP analysis. The county court must determine: (1) whether the tenant showed that the landlord’s claim arises from an act in furtherance of the tenant’s right of petition or free speech in connection with a public issue and (2) whether the landlord established a reasonable likelihood of prevailing on the claim.
*Not attorneys; Ms. Fria and Ms. Woods are Colorado office summer associates with Greenspoon Marder’s Litigation practice.
