BNC Metro 1 v. BNC Metro 3

2025 COA 52

• Court: Colorado Court of Appeals
• Decided: May 22, 2025
• Docket: 24CA1093
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 22, 2025

2025COA52

No. 24CA1093, BNC Metro 1 v. BNC Metro 3 — Torts — Breach of Fiduciary Duty; Government — Colorado Governmental Immunity Act — Actions Against Public Employees — Acts or Omissions Outside the Scope of Employment — Notice of Claim

Two plaintiff metropolitan districts appeal the district court’s

order dismissing their breach of fiduciary duty claim against former

members of their boards of directors under the Colorado

Governmental Immunity Act (CGIA), see §§ 24-10-101 to -120,

C.R.S. 2024. Because the plaintiff districts failed to sufficiently

allege that the individual defendants acted outside the scope of

their employment, the “requirements and limitations” of the CGIA

apply. § 24-10-118(1), C.R.S. 2024. One such requirement is that

the plaintiff must provide notice of the claim. § 24-10-109(1),

C.R.S. 2024. This is so even when the lawsuit involves a public

entity suing its own employees. Because notice is a jurisdictional prerequisite under the CGIA, the plaintiff districts’ failure to provide

notice means their tort claim is “forever bar[red].” Id. Thus, a

division of the court of appeals affirms the district court’s dismissal

of the plaintiff districts’ breach of fiduciary duty claim and remands

for consideration of attorney fees. COLORADO COURT OF APPEALS 2025COA52

Court of Appeals No. 24CA1093 Adams County District Court No. 23CV30630 Honorable Teri L. Vasquez, Judge

BNC Metropolitan District No. 1, a quasi-municipal corporation and political subdivision of the State of Colorado, and BNC Metropolitan District No. 2, a quasi-municipal corporation and political subdivision of the State of Colorado,

Plaintiffs-Appellants,

v.

BNC Metropolitan District No. 3, a quasi-municipal corporation and political subdivision of the State of Colorado, Theodore Antenucci, Janis L. Emanuel, Robert Bol, Julianna Antenucci, and Pauline Bol,

Defendants-Appellees.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur

Announced May 22, 2025

Paul C. Rufien, P.C., Paul Rufien, Denver, Colorado, for Plaintiffs-Appellants

No appearance for Defendant-Appellee BNC Metropolitan District No. 3, a quasi-municipal corporation and political subdivision of the State of Colorado

Wheeler, Trigg, O’Donnell, LLP, Kathryn A. Reilly, Thomas A. Olsen, Daniel N. Guisbond, Denver, Colorado, for Defendants-Appellees Theodore Antenucci, Janis L. Emanuel, Robert Bol, Julianna Antenucci, and Pauline Bol ¶1 Plaintiffs, BNC Metropolitan District No. 1 (BNC1) and BNC

Metropolitan District No. 2 (BNC2) (collectively, Plaintiff Districts),

appeal the district court’s dismissal of their breach of fiduciary duty

claim against defendants, Theodore Antenucci, Janis L. Emanuel,

Robert Bol, Julianna Antenucci, and Pauline Bol (collectively,

Individual Defendants), under the Colorado Governmental

Immunity Act (CGIA), see §§ 24-10-101 to -120, C.R.S. 2024.

¶2 Because the Plaintiff Districts failed to sufficiently allege that

the Individual Defendants acted outside the scope of their

employment as members of the Plaintiff Districts’ boards of

directors, the “requirements and limitations” of the CGIA apply.

§ 24-10-118(1), C.R.S. 2024. One such requirement is that the

plaintiff must provide notice of the claim. § 24-10-109(1), C.R.S.

2024. This is so even when the lawsuit involves a public entity

suing its own employees. Because notice is a jurisdictional

prerequisite under the CGIA, the Plaintiff Districts’ failure to

provide notice means their tort claim against the Individual

Defendants is “forever bar[red].” Id. Thus, we affirm the district

court’s dismissal of the Plaintiff Districts’ breach of fiduciary duty

claim and remand for consideration of attorney fees.

1 I. Background Facts

¶3 The Plaintiff Districts alleged the following facts in their

complaint, and the district court assumed them to be true when it

dismissed their breach of fiduciary duty claim.

¶4 The original developer of real property in Commerce City

prepared and submitted service plans to establish BNC1, BNC2,

and BNC Metropolitan District No. 3 (BNC3) under the Special

District Act, §§ 32-1-101 to -1807, C.R.S. 2024. After elections and

by orders of the Adams County District Court, BNC1 was

established in 2000, and BNC2 and BNC3 were established in

2004. Catellus, Inc.,1 acquired the real property within the

boundaries of BNC1, BNC2, and BNC3 through foreclosure and

became the primary developer.

¶5 In October 2017, BNC1, BNC2, and BNC3 entered into a cost

sharing intergovernmental agreement (the Original Cost Sharing

Agreement). This agreement designated BNC2 and BNC3 as the

1 The Plaintiff Districts’ complaint defines “Catellus” as including

several subsidiaries and related companies, including but not limited to Catellus, LLC, Catellus CC Note, LLC, Catellus Acquisition Company, Catellus Development Corporation, and Catellus Mixed Land, LLC.

2 “Constructing Districts” responsible for constructing the

improvements necessary for development.

¶6 In December 2019, BNC1, BNC2, and BNC3 amended the

Original Cost Sharing Agreement (the First Amendment). The First

Amendment specified that BNC3 would be the only “Constructing

District” for any remaining improvements and required BNC1 and

BNC2 to transfer the necessary funds to BNC3 for completing those

improvements.

¶7 On April 24, 2020, BNC1 transferred $3,363,277 to BNC3

under the Original Cost Sharing Agreement and the First

Amendment. At the time of the transfer, BNC1’s board of directors

consisted of two designees from Catellus — Theodore Antenucci and

Janis Emanuel — and three designees from the original developer.

¶8 On April 30, BNC2 transferred $733,636 from its “Subordinate

2019B Project Fund” to Catellus based on a cost requisition

request. On May 4, BNC2 transferred $694,556 to BNC3 under the

Original Cost Sharing Agreement and the First Amendment. At the

time of these transfers, BNC2’s board of directors consisted of

Theodore Antenucci, Janis Emanuel, and additional Catellus

designees Robert Bol, Julianna Antenucci, and Pauline Bol.

3 ¶9 Meanwhile, in February 2020, Robert Bol and five independent

homeowners submitted self-nomination forms to serve on BNC2’s

board of directors. On May 5, the five homeowners were elected to

serve on that board. On the same day, three other independent

homeowners began serving on BNC1’s board of directors as well.

The Catellus designees resigned from BNC1’s board in June.

¶ 10 When the April and May transfers were made, BNC3’s board of

directors consisted entirely of Catellus designees Theodore

Antenucci, Janis Emanuel, and Robert Bol. By the time the

Plaintiff Districts filed their complaint, the composition of BNC3’s

board had not changed.

II. Procedural History

¶ 11 In May 2023, the Plaintiff Districts filed suit against BNC3 and

the Individual Defendants. As relevant to this appeal, the Plaintiff

Districts asserted a claim for breach of fiduciary duty against the

Individual Defendants. The Individual Defendants moved to

dismiss under C.R.C.P. 12(b)(1), arguing that the CGIA barred the

claim because they were public employees, and the Plaintiff

Districts had failed to provide the required statutory notice. The

Plaintiff Districts countered that the CGIA did not apply because

4 they had alleged that the Individual Defendants’ conduct fell

outside the scope of their public employment. The Plaintiff Districts

asked the district court to hold an evidentiary hearing to resolve

any “factual issues as to whether the Individual Defendants acted

within the scope of employment and whether their conduct was

willful and wanton.”

¶ 12 The court declined to hold a hearing but granted the

Individual Defendants’ motion to dismiss the breach of fiduciary

duty claim. In a detailed written order, the court determined that

(1) the CGIA applied because the Plaintiff Districts failed to

sufficiently allege that the Individual Defendants were acting

outside the scope of their employment; (2) the Plaintiff Districts

were required to but did not provide notice under the CGIA; and

(3) because the Plaintiff Districts did not provide notice, the court

lacked subject matter jurisdiction over the claim. The Plaintiff

Districts appeal the dismissal. See § 24-10-118(2.5) (The court’s

decision on a public employee’s motion raising sovereign immunity

“shall be a final judgment and shall be subject to interlocutory

appeal.”); Carothers v. Archuleta Cnty. Sheriff, 159 P.3d 647, 650

(Colo. App. 2006) (“[W]hen a public employee challenges the

5 sufficiency of the plaintiffs’ notice of claim, the challenge raises an

issue of sovereign immunity, and the trial court’s decision is

immediately appealable.”).2

III. Analysis

¶ 13 The Plaintiff Districts contend that the district court erred by

(1) concluding that the CGIA notice requirement applies because

they sufficiently alleged that the Individual Defendants’ conduct

was outside the scope of their public employment; (2) declining to

conduct an evidentiary hearing to resolve whether the Individual

Defendants were acting outside the scope of their employment; and

(3) concluding that they were required to provide notice of their

claim under the CGIA. We disagree with all three contentions.

2 The Plaintiff Districts’ original complaint alleged that a dispute

existed between BNC1, BNC2, and BNC3 regarding the validity and enforceability of the Original Cost Sharing Agreement and the First Amendment. The Plaintiff Districts requested that the district court declare the Original Cost Sharing Agreement and the First Amendment void because the contracts lacked mutual consideration, were unconscionable, and were contrary to public policy. Alternatively, the Plaintiff Districts asserted that BNC3 had breached the Original Cost Sharing Agreement and the First Amendment. When the court dismissed the breach of fiduciary duty claim against the Individual Defendants, the contract claims against BNC3 remained pending.

6 A. Applicable Law and Standard of Review

¶ 14 Under the CGIA, “[a] public entity is immune from liability in

all claims for injury that lie in tort or could lie in tort” unless

immunity is waived. § 24-10-106(1), C.R.S. 2024. The CGIA also

provides that “no public employee shall be liable for injuries arising

out of an act or omission occurring during the performance of

[their] duties and within the scope of [their] employment, unless

such act or omission was willful and wanton,” subject to certain

exceptions not relevant here. § 24-10-105(1), C.R.S. 2024.

¶ 15 The central purpose of the CGIA is to “limit the potential

liability of public entities for compensatory money damages in tort.”

Tallman Gulch Metro. Dist. v. Natureview Dev., LLC, 2017 COA 69,

¶ 14. The CGIA also provides public employees “protection from

unlimited liability so that such public employees are not

discouraged from providing the services or functions required by

the citizens or from exercising the powers authorized or required by

law.” § 24-10-102, C.R.S. 2024.

¶ 16 “The determination of whether there is immunity under the

CGIA is a question of subject matter jurisdiction to be decided

pursuant to C.R.C.P. 12(b)(1).” Moran v. Standard Ins. Co., 187

7 P.3d 1162, 1164 (Colo. App. 2008). The plaintiff bears the burden

of establishing that the public employee is not immune under the

CGIA and that the trial court has jurisdiction over the tort claim.

Henderson v. City & Cnty. of Denver, 2012 COA 152, ¶ 21.

¶ 17 To resolve any disputes of fact bearing on questions of

immunity, a trial court may hold an evidentiary hearing (a Trinity

hearing). Trinity Broad. of Denver, Inc. v. City of Westminster, 848

P.2d 916 (Colo. 1993); see also Finnie v. Jefferson Cnty. Sch. Dist.

R-1, 79 P.3d 1253, 1258 (Colo. 2003). The trial court has discretion

to decide whether a Trinity hearing is necessary, Medina v. State, 35

P.3d 443, 452 (Colo. 2001), and “[w]e review the court’s decision

whether to conduct a Trinity hearing for abuse of discretion,”

Bilderback v. McNabb, 2020 COA 133, ¶ 10. If the relevant evidence

and underlying facts are undisputed, the trial court may decide the

jurisdictional issue as a matter of law, and we review its decision de

novo. Medina, 35 P.3d at 452-53; Falcon Broadband, Inc. v.

Banning Lewis Ranch Metro. Dist. No. 1, 2018 COA 92, ¶ 11.

8 B. The CGIA’s Notice Requirement Applies to the Plaintiff Districts’ Breach of Fiduciary Duty Claim

¶ 18 The Plaintiff Districts contend that the district court erred by

concluding that the CGIA’s notice requirement applies because they

sufficiently alleged that the Individual Defendants were acting

outside the scope of their employment. We disagree.

1. Applicability of the CGIA’s Notice Requirement Depends on Whether the Individual Defendants Were Acting Outside the Scope of their Public Employment

¶ 19 The “requirements and limitations” of the CGIA apply in

[a]ny action against a public employee . . . which lies in tort or could lie in tort . . . which arises out of injuries sustained from an act or omission of such employee which occurred or is alleged in the complaint to have occurred during the performance of [their] duties and within the scope of [their] employment, unless the act or omission causing such injury was willful and wanton.

§ 24-10-118(1). One such requirement is that the plaintiff must

provide notice of the claim. §§ 24-10-109(1), 24-10-118(1)(a); see

Middleton v. Hartman, 45 P.3d 721, 730 (Colo. 2002) (the CGIA’s

“notice-of-claim provisions unambiguously require[] notice in a suit

against a state employee in which the plaintiff seeks to hold the

state employee personally liable”). Notice is “a jurisdictional

9 prerequisite” and is required “whether or not the injury sustained is

alleged in the complaint to have occurred as the result of the willful

and wanton act” of a public employee. § 24-10-118(1)(a).

¶ 20 It is undisputed that the Plaintiff Districts’ breach of fiduciary

duty claim is a tort claim. See Accident & Injury Med. Specialists,

P.C. v. Mintz, 2012 CO 50, ¶ 21 (“The breach of fiduciary duty cause

of action is a tort to remedy economic harm suffered by one party

due to a breach of duties owed in a fiduciary relationship.”). It is

also undisputed that the claim arises from conduct in which the

Individual Defendants engaged when they were board members of

BNC1, BNC2, and BNC3, such that the Individual Defendants are

considered public employees for purposes of the CGIA. See

§ 24-10-103(4)(a), (5), C.R.S. 2024 (defining a “[p]ublic employee” as

“an officer, employee, servant, or authorized volunteer” of a “public

entity,” which includes “every other kind of district . . . or political

subdivision thereof organized pursuant to law”); Falcon Broadband

Inc., ¶ 9 (members of a special district’s board of directors are

public employees for the purposes of the CGIA). Thus, unless the

Plaintiff Districts sufficiently alleged that the Individual Defendants

10 were acting outside the scope of their public employment, the

CGIA’s notice requirement applies. See § 24-10-118(1)(a).

¶ 21 An employee is acting “within the scope of [their] employment

if the work done is assigned to [them] by [their] employer, is

necessarily incidental to that work, or is customary in the

employer’s business.” Podboy v. Fraternal Ord. of Police, Denver

Sheriff Lodge 27, 94 P.3d 1226, 1230 (Colo. App. 2004). “The

determination of whether an act of an employee ‘occurred within the

scope of employment depends on an examination of the totality of

the circumstances.’” First Nat’l Bank of Durango v. Lyons, 2015

COA 19, ¶ 47 (quoting Podboy, 94 P.3d at 1230).

2. The Plaintiff Districts Failed to Sufficiently Allege that the Individual Defendants Were Acting Outside the Scope of Their Public Employment

¶ 22 In their complaint, the Plaintiff Districts alleged that the

Individual Defendants breached their fiduciary duties “by acting in

their individual capacities as representatives of Catellus rather than

as fiduciary board members.” Specifically, the Plaintiff Districts

alleged that the Individual Defendants breached their fiduciary

duties by

11 • approving the Original Cost Sharing Agreement and the

First Amendment when they “lacked consideration”

benefitting BNC1 and BNC2, were “unfair and

unconscionable, and violated public policy”;

• approving the First Amendment “without any need or

benefit” to BNC1 or BNC2, “less than five months before”

BNC1’s and BNC2’s boards of directors changed to

“unconflicted homeowners, and while a petition for recall

was pending”;

• transferring $3,363,277 from BNC1 to BNC3 under the

Original Cost Sharing Agreement and the First Amendment

“less than two weeks before majority control of BNC1[’s]

board of directors would be transitioned to unconflicted

homeowners, and while BNC3 would continue to be

controlled by Catellus”;

• transferring $733,636 from BNC2’s “Subordinate 2019B

Project Fund” to Catellus based on a cost requisition

request “less than one week before control of the BNC2

board of directors would be transitioned to independent,

12 unconflicted homeowners, and while BNC3 would continue

to be controlled by Catellus”;

• transferring $694,556 from BNC2 to BNC3 under the

“less than one week before control of the BNC2 board of

directors would be transitioned to independent,

unconflicted homeowners, and while BNC3 would continue

to be controlled by Catellus”; and

• “[r]equiring BNC2 to undertake the time and expense

associated with” an election “when Robert Bol was not a

qualified eligible elector of BNC2.”

¶ 23 The Plaintiff Districts also generally alleged that the Individual

Defendants “each benefitted personally from their individual breach

of fiduciary duty through the benefit conferred upon Catellus, their

employer, and their resulting compensation from Catellus.” And

they alleged that, “[i]n breaching their fiduciary duties, the

[Individual Defendants] acted willfully and wantonly, and as such,

13 outside the scope of their governmental function as board

members” of their respective districts.3

¶ 24 The only specific actions the Plaintiff Districts allege the

Individual Defendants took — entering into contracts, transferring

money between districts and to the developer, and holding elections

— are routine actions in the work of members of a special district’s

board of directors. See Henderson, ¶ 21; Podboy, 94 P.3d at 1230.

Although these allegations may speak to whether the Individual

Defendants breached their fiduciary duties, they do not

demonstrate that the Individual Defendants acted outside the scope

of their employment.

¶ 25 The Special District Act specifically grants board members the

authority “[t]o enter into contracts and agreements affecting the

3 The Plaintiff Districts assert for the first time on appeal that the

Individual Defendants’ conduct fell outside the scope of their employment because it violated the Colorado Code of Ethics. Because the Plaintiff Districts did not make this argument to the district court, we decline to address it further. See Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50 (We do not require “talismanic language” to preserve an argument, but a party must present “the sum and substance of the argument” for it to be properly preserved for appeal.) (citations omitted); Rinker v. Colina- Lee, 2019 COA 45, ¶ 22 (“We do not review issues that have been insufficiently preserved.”).

14 affairs of the special district”; to “borrow money and incur

indebtedness . . . and to issue bonds”; and to “acquire, dispose of,

and encumber real and personal property.” § 32-1-1001(1)(d)(I), (e),

(f), C.R.S. 2024. And after the special district is organized and the

first board elected, the Special District Act empowers the board to

“govern the conduct of all subsequent regular and special elections

of the special district.” § 32-1-804, C.R.S. 2024.

¶ 26 In addition, each district’s respective service plan provides that

“[i]t is anticipated that the [d]istricts, collectively, will undertake the

financing and construction of the improvements,” so that “the

necessary services and improvements can be financed in the most

favorable and efficient manner.” The service plans also contemplate

that the districts would enter into an “Intergovernmental Cost

Sharing and Recovery Agreement” to govern “the relationships

between and among the [d]istricts with respect to the financing and

construction of improvements,” including by establishing a

mechanism for cooperative and proportional funding.

¶ 27 Because the challenged actions are customary for special

district board members, and some are even specifically

contemplated by the districts’ service plans, the Plaintiff Districts

15 needed to allege how such actions were beyond the Individual

Defendants’ powers. They did not do so. Seemingly to the contrary,

the complaint alleges that the Individual Defendants transferred

money to BNC3 “under” the Original Cost Sharing Agreement and

the First Amendment and to Catellus “based on a cost requisition

request.” And although the Plaintiff Districts suggest that the

timing of the transfers is suspicious, they do not allege that the

Individual Defendants somehow lacked authority to complete the

transfers at the time they were made.

¶ 28 True, the Plaintiff Districts allege that the Original Cost

Sharing Agreement and First Amendment “lacked consideration,”

were “unfair and unconscionable,” and “violated public policy,” but

they fail to allege why the contracts suffer from these defects. Such

allegations are legal conclusions couched as factual allegations,

which we need not accept as true. See Denver Post Corp. v. Ritter,

255 P.3d 1083, 1088 (Colo. 2011).

¶ 29 As to the allegation that the Individual Defendants required

BNC2 to conduct an “unnecessary” election, even accepting that the

election was not necessary, which is in the nature of a legal

conclusion, see id., conducting elections falls within the board

16 members’ scope of employment. See Henderson, ¶ 21; Podboy, 94

P.3d at 1230. In addition, the only harm alleged to have resulted

from the “unnecessary” election is that it required “time and

expense,” which is not so out of the ordinary as to suggest that, by

conducting the election, the Individual Defendants acted beyond the

scope of their employment. See Podboy, 94 P.3d at 1230; see also

Warne v. Hall, 2016 CO 50, ¶ 27 (conclusory allegations are

insufficient to state a claim and are not entitled to an assumption

that they are true).

¶ 30 The Plaintiff Districts’ bald allegation that the Individual

Defendants acted as representatives of Catellus rather than as

district board members and “benefitted personally” from their

alleged breaches of fiduciary duty is also not enough. The Plaintiff

Districts essentially allege that simply because the Individual

Defendants were employees of Catellus, they were acting in their

private capacities for personal gain and outside the scope of their

public employment. But “developer employees frequently comprise

the sole managers of special districts in their early stages.”

Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019 CO 51,

¶ 34. Such an arrangement “is by no means peculiar,” and special

17 districts “are often established by developers” to finance the

infrastructure needed for new developments through the issuance

of municipal bonds. Id. at ¶ 34 n.9. Without more, we need not

credit such conclusory allegations. See Warne, ¶ 27.

¶ 31 Finally, the Plaintiff Districts’ allegation that the Individual

Defendants acted outside the scope of their employment because

they acted willfully and wantonly does not save their claim for two

reasons. First, the Plaintiff Districts fail to explain how the

Individual Defendants’ conduct meets the willful and wanton

standard. “[W]illful and wanton conduct is not merely negligent;

instead, it must exhibit a conscious disregard for the danger.”

Martinez v. Est. of Bleck, 2016 CO 58, ¶ 32. The Plaintiff Districts’

generic allegation is insufficient. See § 24-10-110(5)(b), C.R.S. 2024

(“Failure to plead the factual basis of an allegation that an act or

omission of a public employee was willful and wanton shall result in

dismissal of the claim for failure to state a claim upon which relief

can be granted.”); Wilson v. Meyer, 126 P.3d 276, 282 (Colo. App.

2005) (“The [CGIA] ‘requires that a plaintiff set forth in [their]

complaint specific facts which support [their] claim that public

employees acted willfully and wantonly’; conclusory allegations are

18 insufficient.” (quoting Robinson v. City & Cnty. of Denver, 39 F.

Supp. 2d 1257, 1264 (D. Colo. 1999))).

¶ 32 Second, notice is required under the CGIA regardless of

whether the alleged injury resulted from a public employee’s willful

and wanton conduct. See § 24-10-109(1) (“Any person claiming to

have suffered an injury by a public entity or by an employee thereof

while in the course of such employment, whether or not by a willful

and wanton act or omission, shall file a written notice . . . .”)

(emphasis added); see also § 24-10-118(1)(a) (requiring notice

“regardless of whether . . . the public entity might be liable”). The

Plaintiff Districts cannot avoid the obligation to provide notice

merely by alleging that the Individual Defendants acted willfully and

wantonly. See First Nat’l Bank of Durango, ¶ 45 (“[W]hether the

notice requirement applies in actions alleging that the employee’s

acts or omissions occurred outside the scope of [their]

employment . . . is a distinct inquiry from whether the employee

acted willfully and wantonly.”).

¶ 33 We are not persuaded otherwise by the Plaintiff Districts’

reliance on Tallman to argue that the CGIA does not apply where a

public employee allegedly acts in a financially reckless manner and

19 in bad faith for their own personal gain. We acknowledge that the

division in Tallman determined that the CGIA was ambiguous

regarding its application “to suits brought by a public entity

plaintiff” against its own employee and that the purpose of the CGIA

would be frustrated if it permitted employees “to shield [themselves]

with the sovereign immunity meant to protect a public entity, and a

public employee only when acting as an extension of the entity.”

Tallman, ¶¶ 19, 21. But the division limited its conclusion to the

unique facts presented in that case, reasoning that allowing the

defendant to claim immunity under the circumstances “[did] not

effectuate the purpose of the CGIA.” Id. at ¶ 22.

¶ 34 Notably, the division did not frame its analysis in terms of

whether the defendant’s conduct fell outside the scope of his

employment, nor did it purport to announce a broad rule that the

CGIA never applies when a public entity sues its own employee.

Instead, it clarified that it did “not speak to other circumstances

under which a public entity, as plaintiff, may sue its own employees

for their conduct.” Id. at ¶ 23; see also Chavez v. Chavez, 2020

20 COA 70, ¶ 13 (explaining that one division of the court of appeals is

not bound by another).4

¶ 35 Even so, in our view, had the Tallman division analyzed

whether the public entity adequately alleged that the defendant

acted outside the scope of his employment, it likely would have

reached the same conclusion given the nature of the defendant’s

conduct. There, the district alleged that the defendant was both the

president of the special district’s board of directors and the owner of

the private developer responsible for building the project’s

infrastructure. Tallman, ¶ 2. The defendant, as president of the

board, sent himself, as manager of the developer, “a letter

purporting to accept nearly four million dollars of improvements on

behalf of the [d]istrict,” some of which had not been constructed.

Id. at ¶¶ 3-5 (the total cost of improvements was approximately $6

million, only one-third of which had been constructed). The

4 An undercurrent of the Plaintiff Districts’ arguments seems to be

that the CGIA should not apply at all when a public entity sues its own employee. Although the CGIA’s declaration of policy acknowledges that the doctrine of sovereign immunity typically protects public entities “from suit for injury suffered by private persons,” § 24-10-102, C.R.S. 2024 (emphasis added), nothing in the operative provisions of the CGIA limits its application to claims brought by private plaintiffs.

21 defendant also completely drew down and then defaulted on an

$8.6 million construction loan despite constructing only a fraction

of the improvements, and the bank sought to foreclose on the

project, which served as collateral for the loan. Id. at ¶¶ 4-6. Then,

after the foreclosure proceedings had begun, the defendant “signed

off on the issuance of $4,214,000 in bonds” to the developer, which

were issued just ten days before the public trustee authorized the

sale of the project. Id. The district also “allege[d] that [the

defendant] and [the developer] did not disclose prior to the issuance

of the bonds the financial status, the failure to meet sales

expectations, the pending foreclosure, and the conflict of interest

presented by [the defendant’s] involvement on both sides of the

bond transaction.” Id. at ¶ 7.

¶ 36 In contrast, the Plaintiff Districts did not allege that the

Individual Defendants owned Catellus, accepted improvements that

had not been constructed by Catellus, or issued bonds to provide

funds to Catellus knowing that it was in dire financial straits or

that district property was subject to foreclosure. The Plaintiff

Districts did not allege that the Individual Defendants withheld

information or failed to disclose any potential conflicts; on the

22 contrary, the Plaintiff Districts alleged that each of the Individual

Defendants filed conflict of interest disclosures (even though on

appeal the Plaintiff Districts contest the sufficiency of such

disclosures). Although the Plaintiff Districts alleged that BNC1 and

BNC2 transferred funds to BNC3 when construction of at least one

improvement had not yet begun and just weeks before control of the

districts transferred to independent homeowners, they did not

explain why doing so was financially reckless, whether BNC3 did

anything improper with the funds or failed to construct the

remaining improvements, or how the Individual Defendants

specifically benefitted from the transfers.5 Unlike the division in

Tallman, we conclude that allowing the Individual Defendants the

initial protection of the CGIA’s notice requirement does not

undermine the CGIA’s purpose.

5 To the extent the Plaintiff Districts claim that any of the

transactions breached the Original Cost Sharing Agreement or the First Amendment, those are contract claims that operate outside the CGIA and remain pending against BNC3 in the district court. See City of Aspen v. Burlingame Ranch II Condo. Owners Ass’n, 2024 CO 46, ¶ 30 (“[T]he immunity blanket provided by the CGIA does not cover ‘actions grounded in contract.’” (quoting Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008))).

23 ¶ 37 Because the Plaintiff Districts failed to sufficiently allege that

the Individual Defendants were acting outside the scope of their

employment, we conclude that the district court properly

determined that the CGIA notice requirement applies. See

§§ 24-10-105, -118(1).

C. The District Court Was Not Required to Hold a Trinity Hearing

¶ 38 The Plaintiff Districts contend that the district court erred by

failing to hold a Trinity hearing, arguing that they should have been

allowed to conduct discovery and present evidence to establish “the

precise nature of the Individual Defendants’ personal benefit and

the precise amount benefitted.” We are not persuaded.

¶ 39 When there is no evidentiary dispute, “the court may rule

without a hearing.” Duke v. Gunnison Cnty. Sheriff’s Off., 2019 COA

170, ¶ 32; see also Medina, 35 P.3d at 452. The Individual

Defendants did not dispute any of the relevant facts; for purposes of

resolving the motion to dismiss, they admitted that they were

employees and designees of Catellus, adopted the Original Cost

Sharing Agreement and the First Amendment, and transferred

money pursuant to those agreements. The Individual Defendants

24 also did not dispute the Plaintiff Districts’ allegations that they held

an election for BNC2.

¶ 40 The district court was not required to credit the Plaintiff

Districts’ conclusory allegations that the Individual Defendants

were acting in their private capacities, personally benefitted from

the transactions, and engaged in willful and wanton conduct. See

Wilson, 126 P.3d at 282. It accepted the well-pleaded facts as true

and determined that “because [the Plaintiff Districts] did not offer

any evidence by way of [a]ffidavit or exhibits that raises a dispute,

the [c]ourt does not believe that a Trinity hearing is necessary.” See

City of Aspen v. Kinder Morgan, Inc., 143 P.3d 1076, 1078 (Colo.

App. 2006) (a plaintiff may present evidence outside their pleadings

to resolve a jurisdictional challenge).

¶ 41 Because the complaint did not create a dispute by alleging

facts sufficient to support a finding that the Individual Defendants

acted outside the scope of their employment, the district court did

not abuse its discretion by declining to conduct a hearing. See

Bilderback, ¶ 10; see also Padilla v. Sch. Dist. No.1, 25 P.3d 1176,

1180 (Colo. 2001) (the trial court did not abuse its discretion by

25 ruling on the public entity’s motion to dismiss without a hearing

because the court accepted all the plaintiff’s allegations as true).

D. The Plaintiff Districts Were Required to but Did Not Provide Notice Under the CGIA

¶ 42 The Plaintiff Districts contend that the district court erred by

concluding that they were required to provide notice of their claim

under the CGIA.6 We disagree.

¶ 43 Any person claiming to have suffered an injury by a public

employee acting in the course and scope of employment, “whether

or not by a willful and wanton act or omission,” must file a written

notice “with the governing body of the public entity or the attorney

representing the public entity” within 182 days after discovering the

6 The Plaintiff Districts also assert that it would be absurd to

require them to provide notice to themselves. But the Plaintiff Districts failed to raise this argument in the district court, so we will not address it for the first time on appeal. See Madalena, ¶ 50; Rinker, ¶ 22.

26 injury. § 24-10-109(1), (3)(a).7 Compliance with the notice

requirement is a “jurisdictional prerequisite to any action brought

under the provisions of [the CGIA], and failure of compliance shall

forever bar any such action.” Id.; see also § 24-10-118(1)(a). Under

the plain language of the statute, a plaintiff is not excused from the

notice requirement simply by alleging that the public employee

engaged in willful and wanton conduct. See

§§ 24-10-109, -118(1)(a); see also First Nat’l Bank of Durango, ¶ 11

(“Even if the employee ultimately is not immune from suit because

an exception to immunity applies or the act or omission causing the

claimant’s alleged injury was willful and wanton, notice still must

be provided for the suit to proceed.”).

¶ 44 It is undisputed that the Plaintiff Districts did not provide the

required notice. Because the Plaintiff Districts failed to comply with

7 In their reply brief, the Plaintiff Districts argue that the Individual

Defendants could effectively insulate themselves from being sued by retaining control over the districts for more than 182 days after breaching their fiduciary duties. We do not address arguments raised for the first time in a reply brief. Meadow Homes Dev. Corp. v. Bowens, 211 P.3d 743, 748 (Colo. App. 2009). In any event, those are not the facts of this case, where control of BNC1 and BNC2 was transferred to independent homeowners approximately one month after the Individual Defendants took the actions alleged to have breached their fiduciary duties.

27 this “jurisdictional prerequisite,” the district court correctly

concluded that it lacked jurisdiction over their breach of fiduciary

duty claim. See §§ 24-10-109(1), -118(1)(a); First Nat’l Bank of

Durango, ¶ 12. And because of our disposition, we need not reach

the Individual Defendants’ alternative bases to affirm.

IV. Attorney Fees

¶ 45 The Individual Defendants request an award of their appellate

attorney fees under section 13-17-201(1), C.R.S. 2024, which

“creates a mandatory right to attorney fees when a plaintiff’s tort

action is dismissed prior to trial under C.R.C.P. 12(b).” Colo.

Special Dists. Prop & Liab. Pool v. Lyons, 2012 COA 18, ¶ 59.

Because the district court dismissed the single tort claim asserted

against the Individual Defendants on their C.R.C.P. 12(b)(1) motion,

the Individual Defendants are entitled to recover their reasonable

appellate attorney fees for defending against this appeal. See id.;

Wark v. Bd. of Cnty. Comm’rs, 47 P.3d 711, 717 (Colo. App. 2002) (A

party who successfully defends an appeal from the dismissal of a

tort action under C.R.C.P. 12(b) “is also entitled to recover

reasonable attorney fees incurred on appeal.”); see also § 24-10-

118(2.5) (the court’s decision on a motion to dismiss based on

28 sovereign immunity is “a final judgment”). We remand to the

district court to determine the reasonable amount of fees to be

awarded to the Individual Defendants. C.A.R. 39.1.

V. Disposition

¶ 46 We affirm the district court’s judgment and remand for the

district court to determine the amount of reasonable appellate

attorney fees to be awarded to the Individual Defendants.

JUDGE J. JONES and JUDGE YUN concur.