Baer v. Weaver

• Court: Colorado Court of Appeals
• Decided: November 26, 2025
• Docket: 24CA1828
• Status: Unpublished

Opinion

24CA1828 Baer v Weaver 11-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1828 City and County of Denver District Court No. 23CV31571 Honorable David H. Goldberg, Judge

Baer-Paik Family Living Trust and Merritt Baer,

Plaintiffs-Appellees,

v.

Jonathan Weaver,

Defendant-Appellant.

ORDERS AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE PAWAR Yun and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 26, 2025

Ross-Shannon & Proctor, P.C., Joshua R. Proctor, Lakewood, Colorado, for Plaintiffs-Appellees

Westerfield & Martin, LLC, Zachary S. Westerfield, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 In this real estate dispute, defendant, Jonathan Weaver,

appeals the trial court’s orders striking his designation of

nonparties at fault and denying his motion for post-trial relief from

the jury’s verdict in favor of plaintiffs, Baer-Paik Family Living Trust

and Merritt Baer (collectively, Baer-Paik). We affirm.

I. Background

¶2 Baer-Paik (buyer) and Weaver (seller) entered into a contract to

buy and sell a house in a historic residential district in Denver.

After closing, Baer-Paik received notices of zoning violations from

the city and county. The notices indicated that Weaver had

replaced windows and made other changes to the site without

obtaining the required zoning and building permits, and Baer-Paik,

as the current owner, was required to fix the violations, subject to

civil and criminal sanctions.

¶3 Baer-Paik brought claims against Weaver for breach of

contract, negligent misrepresentation, and fraudulent

concealment/nondisclosure.

¶4 Before trial, Weaver sought to designate Baer-Paik’s real estate

agents as nonparties at fault. He argued that the agents breached

their professional duties by failing to disclose communications they

1 had with his broker regarding the windows, failing to advise Baer-

Paik to consult with the appropriate governmental offices regarding

the requirements for window replacement, and failing to advise

Baer-Paik to seek legal counsel. As a result, Weaver argued, the

agents caused Baer-Paik’s losses. Baer-Paik filed a motion to strike

the designation because it was not supported by a certificate of

review as required for actions against licensed professionals, and

because it failed to establish a prima facie case for negligence. The

trial court granted the motion to strike in a written order.

¶5 The case proceeded to trial, where a jury found in Baer-Paik’s

favor. The jury awarded $220,000 in damages for fraudulent

concealment/nondisclosure and $270,000 for breach of contract. It

found Weaver liable for negligent misrepresentation but awarded no

damages on that claim.

¶6 Weaver filed a motion for post-trial relief, arguing that the

jury’s damages awards were duplicative because they were based on

the same facts. The trial court denied the motion.

¶7 Weaver appeals, arguing that the trial court abused its

discretion by striking his designation of nonparties at fault and by

2 improperly denying his motion for post-trial relief. We disagree with

Weaver’s arguments and affirm.

II. Designation of Nonparties at Fault

¶8 The trial court struck Weaver’s designation of Baer-Paik’s real

estate agents as nonparties at fault because determining whether

the agents breached their standards of care as licensed

professionals required expert testimony, and Weaver failed to file a

certificate of review. The court noted that the case involved “liens,

impediments, encumbrances, zoning violations, and defects

affecting the property in question,” as well as “unique ordinances

and municipal requirements because the house is located within a

historic district.”

¶9 We review the court’s determination that the applicable

standard of care requires expert testimony for an abuse of

discretion. See Hice v. Lott, 223 P.3d 139, 143 (Colo. App. 2009).

We find none.

A. Applicable Law

¶ 10 In civil liability cases, defendants may designate nonparties

they contend are wholly or partially at fault by giving notice under

section 13–21–111.5(3)(b), C.R.S. 2025. Redden v. SCI Colo.

3 Funeral Servs., Inc., 38 P.3d 75, 80 (Colo. 2001). Such designations

must include the nonparty’s name, last-known address, and a brief

statement of the basis for the nonparty’s fault. Id. If the nonparty

is a licensed professional and expert testimony is necessary to

establish a prima facie case of negligence, the designation must also

include a certificate of review under section 13-20-602(1), C.R.S.

2025. Id.; Martinez v. Badis, 842 P.2d 245, 249 (Colo. 1992).

¶ 11 Establishing a standard of care in a professional negligence

case normally requires an expert to explain it because ordinary

people are not familiar with the applicable standards. Hice, 223

P.3d at 143. However, expert testimony is unnecessary if the

relevant standard of care can be understood by a layperson. Id.

¶ 12 In reviewing a court’s decision regarding the designation of

nonparties at fault, we “construe designation requirements strictly

to avoid a defendant attributing liability to a non-party from whom

the plaintiff cannot recover.” Redden, 38 P.3d at 80.

B. Discussion

¶ 13 We agree with the trial court that expert testimony was

necessary to prove that the nonparties were at fault in this case.

Weaver’s designation of Baer-Paik’s agents as nonparties at fault

4 alleged that the agents failed to disclose information about whether

the window replacement in the house conformed to the

requirements for a historic residential district or to advise Baer-Paik

to seek additional information and legal counsel about the same.

While Weaver attempts to cast the agents’ duties as clear and

straightforward — asserting simply that they had information they

were required to disclose and failed to disclose it — we conclude the

kind of information involved in Baer-Paik’s negligence claim is more

complex. As the trial court observed, determining whether such

failure amounted to a breach of the agents’ professional duty

required an understanding of the relevant rules at play — including

the applicable zoning, building, and other legal requirements.

¶ 14 For the same reason, we reject Weaver’s assertion that a

layperson could determine whether the agents were professionally

negligent in failing to advise Baer-Paik to seek more information

from the relevant governmental entities or to obtain legal advice

regarding the windows. Weaver argues these issues had nothing to

do with the complex regulatory context cited by the trial court. But

this part of his designation also requires an understanding of the

underlying legal landscape. That is, for a jury to determine whether

5 the agents had a professional duty to tell Baer-Paik to seek

additional information and legal advice about the windows’

compliance with historic district requirements, it must have some

understanding of those requirements.1 Strictly construing Weaver’s

designation of nonparties at fault, as we must, we conclude the trial

court properly exercised its discretion in determining that expert

testimony was required to explain the applicable standards of care.

¶ 15 We are not persuaded otherwise by Weaver’s reliance on

Baumgarten v. Coppage, 15 P.3d 304, 306 (Colo. App. 2000). In

that case, the buyers alleged that the seller’s real estate brokers —

one of whom was also the seller — actually knew or should have

known about hidden damage to the foundation walls and failed to

disclose that information to them. Id. The division noted that the

seller’s brokers had a statutory duty to disclose to the buyers

“adverse material facts” known to them. Id. at 307 (citing § 12-61-

804(3)(a), C.R.S. 2000 (current version at § 12-10-404, C.R.S.

2025)). Because the statute established this duty and a defective

1 Indeed, in his reply brief, Weaver acknowledges that “the issue of

. . . replacing the windows involved the application of various codes, regulations or other requirements and that the nonparties should have advised [Baer-Paik] to obtain expert advice.”

6 foundation is obviously material information, the court concluded

that no expert testimony was necessary to establish the buyers’

claim against the brokers. Id.

¶ 16 Baumgarten is distinguishable. Weaver does not point to any

statute requiring real estate agents to affirmatively disclose the

requirements for window replacement in a historic residential

district. And whether Baer-Paik’s agents had such a duty is far

more complex than the duty to disclose a known defective

foundation as an “adverse material fact[]” under a statute. Thus,

Baumgarten does not support the conclusion that no expert

testimony was required in this case.

III. No Duplicative Damages

¶ 17 Next, Weaver argues the trial court erred by denying his

motion for post-trial relief because the jury’s verdict awarded Baer-

Paik double damages. We disagree.

¶ 18 The trial court instructed the jury that, for purposes of a

breach of contract claim, “general damages” means the amount

required to compensate Baer-Paik for losses resulting from Weaver’s

breach of contract and, if general damages were proved, the jury

must award “[t]he reasonable cost to bring the property into

7 compliance with [the relevant] regulations, codes, and guidelines.”

For this claim, the jury awarded $270,000 in general damages.

¶ 19 Regarding Baer-Paik’s fraudulent concealment/nondisclosure

claim, the trial court instructed the jury that it must consider “[t]he

difference between the market value of the property and what its

value would have been had the representation been true” and “[t]he

reasonable cost to repair the property.” In awarding $220,000 in

damages for this claim, the jury delineated that the entire award

was for loss of market value. It awarded no damages for the cost of

repair.

¶ 20 On this record, we conclude the trial court properly

determined there were no duplicative damages. While Weaver

argues the above claims were based on the same facts, the

instructions and jury verdicts, viewed together, make clear that the

damages awards were based on different losses resulting from

different conduct. Therefore, Baer-Paik did not receive double

recovery for the same wrong.

¶ 21 Weaver’s arguments do not persuade us to reach a different

conclusion. Without acknowledging the above instructions or

carefully delineated jury verdict forms, he argues the damages

8 awards must have been duplicative because the trial court

instructed the jury that Baer-Paik “sued for the same damages on

different relief.” But this instruction continued, “If you find for

[Baer-Paik] on more than one claim for relief, you may award them

damages only once for the same damages.” In other words, this

instruction, like the others, sought to prevent double recovery, not

allow it.

¶ 22 We must assume the jury followed the court’s instruction

prohibiting multiple recoveries for the same damages. See

Schuessler v. Wolter, 2012 COA 86, ¶¶ 64-65. And, in any event, as

described above, the jury clarified its damages awards to eliminate

any doubt. Because the trial court properly determined there was

no double recovery, Weaver is not entitled to relief.

IV. Attorney Fees

¶ 23 Finally, Baer-Paik requests an award of reasonable attorney

fees and costs incurred on appeal. The parties’ contract provides

that the prevailing party in any related litigation is entitled to all

reasonable costs and expenses, including attorney fees. Applying

this provision, we grant Baer-Paik’s request.

9 V. Disposition

¶ 24 The orders are affirmed, and the case is remanded to the trial

court for a determination and award of Baer-Paik’s reasonable

attorney fees and costs incurred on appeal.

JUDGE YUN and JUDGE HAWTHORNE concur.