Brone v. Cromer

• Court: Colorado Court of Appeals
• Decided: February 13, 2025
• Docket: 24CA0631
• Status: Unpublished

Opinion

24CA0631 Brone v Cromer 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0631 Boulder County District Court No. 23CV30498 Honorable J. Keith Collins, Judge

Lisa Brone,

Plaintiff-Appellant,

v.

Ted Eugene Cromer and Muezetta Elise Cromer,

Defendants-Appellees.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE BERGER* Dunn and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025

Pat Mellen Law, LLC, Patricia Ann Mellen, Denver, Colorado, for Plaintiff- Appellant

Lieberman Legal LLC, Chad Liberman, Englewood, Colorado; Stoneman Legal, Todd N. Stoneman, Longmont, Colorado, for Defendants-Appellees

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Plaintiff, Dr. Lisa Brone, appeals the trial court’s judgment

dismissing her claims against defendants, Ted Eugene Cromer and

Muezetta Elise Cromer (the Cromers), under C.R.C.P. 41(b)(1). We

address each of Dr. Brone’s contentions but reject them.

Accordingly, we affirm and remand to the trial court to award the

Cromers their reasonable appellate attorney fees and costs.

I. Relevant Facts and Procedural History

¶2 In 2015, the Cromers entered into a contract to purchase a

single-family home located in Longmont, Colorado (the property).

As part of their due diligence, the Cromers hired a certified

inspector who examined the property and created an inspection

report (2015 Inspection Report). The 2015 Inspection Report

identified potential issues with the property and separated these

issues into primary concerns and secondary concerns. The 2015

Inspection Report noted as one primary concern that the patio

surface abutting the house had settled, and that it sloped toward

the property’s foundation. The report also identified as a primary

concern that the grade around the house needed correction because

some areas around the property had a “flat to negative slope,”

1 which “can cause run-off water to pool at the foundation and

concrete flatwork.”

¶3 The Cromers filed an inspection objection requesting that the

sellers address some of the concerns raised in their inspection

report, such as the settling of the patio. However, the sellers

declined to address the Cromers’ objection to the settling of the

patio. Instead, the Cromers’ inspector sent a follow-up email in

which he noted that, upon further investigation, he was able to

determine the patio “did slope slightly away from the house.”

¶4 The Cromers closed on the property in December 2015 and

resided there as their primary residence. In 2021, the Cromers

began renovating the property in anticipation of selling it. The

Cromers installed a new roof and a new driveway, and they made

other interior and exterior improvements and repairs. They

“mudjacked” the patio to address their concerns from the 2015

Inspection Report that the patio had settled.

¶5 In July 2021, Dr. Brone contracted with the Cromers to

purchase the property. Dr. Brone received from the Cromers the

required “Seller’s Property Disclosure” (SPD), a form promulgated by

the Colorado Real Estate Commission. The contract also required

2 that the Cromers provide Dr. Brone with “any other inspection

reports” in their possession; however, the 2015 Inspection Report

was not given to Dr. Brone at this time. The Cromers completed the

SPD but did not identify any issues concerning the settling of the

patio, gaps near the foundation, or areas of potential water

intrusion.

¶6 Dr. Brone hired a certified inspector who examined the

property and provided an inspection report (2021 Inspection

Report). The 2021 Inspection Report identified various issues, such

as a missing rain collar, grading of the property, gaps between the

foundation and driveway and walkway, and “lot/drainage” issues.

The report noted that there was evidence of concrete lifting

(mudjacking) of the patio and potential water leaks in the attic. As

to these two latter items, the inspector recommended that Dr.

Brone consult with the sellers to obtain more information. But Dr.

Brone did not contact the Cromers about the lifting of the concrete

patio and did not do anything about the potential attic leak.

¶7 In addition to the property inspection, Dr. Brone hired Mold

Inspection Services (MIS) to examine the property. MIS collected air

samples in the basement and surface samples in the attic, neither

3 of which indicated any evidence of mold. This was especially

important to Dr. Brone, who is susceptible to mold-based illness.

¶8 Dr. Brone filed an inspection objection with the Cromers;

however, none of her objections related to the grading around the

property, the driveway and walkways, or the back patio where the

mudjacking had been done. Dr. Brone withdrew all of her

inspection objection after receiving a $2,200 credit toward the

purchase price. In August 2021, Dr. Brone closed on the property.

¶9 Roughly a month after closing, Dr. Brone observed water

leaking from a pipe in a bathroom on the property’s main floor. Dr.

Brone hired a plumber to replace some pipes, which stopped the

leak.

¶ 10 In November 2021, Dr. Brone discovered “a significant amount

of water on the floor” coming from the basement bathroom. Dr.

Brone testified that the water was about one inch deep in the

bathroom. After a plumber repaired that problem, Dr. Brone hired

a company to evaluate the water damage. In December 2021, Dr.

Brone again hired MIS to test the flood-affected areas for mold. MIS

found that one wall was still wet from the water discharge.

4 Consequently, Dr. Brone hired EcoTrek to conduct remediation

work.

¶ 11 In June 2022, Dr. Brone noticed that her twenty-year-old

washing machine was leaking water. On examination of the area

under and surrounding the washing machine, she discovered an

area of black staining that she feared might be mold, and she again

called MIS to conduct mold testing. This time MIS found mold. Dr.

Brone hired EcoTrek for remediation, but because of scheduling

problems, EcoTrek did not begin work on the property until August

2022. Over the next year, EcoTrek did remediation work on the

property on several occasions. Dr. Brone testified that she spent

approximately $216,000 to address the water damage and mold

issues.

¶ 12 In July 2023, Dr. Brone filed suit against the Cromers for

breach of contract, breach of the duty of good faith and fair dealing,

fraudulent misrepresentation, and nondisclosure/concealment.

Specifically, Dr. Brone alleged that the Cromers had failed to

disclose material information to the contract — such as moisture

and water problems, roof leaks, and flooding/drainage issues —

that prevented her from obtaining an accurate picture of the

5 property. She alleged that the failure to disclose adverse material

facts breached the Cromers’ implied duty of good faith and fair

dealing. And she also alleged that the Cromers knowingly

concealed or failed to disclose information required under the

contract.

¶ 13 The court held a bench trial in March 2024. At the close of

Dr. Brone’s case, the Cromers moved to dismiss her claims under

C.R.C.P. 41(b)(1). Following argument by the parties, the trial court

granted the motion and entered judgment in favor of the Cromers.

II. Applicable Law and Standard of Review

¶ 14 In civil actions tried by a court without a jury, Rule 41(b)

permits the defendant to move for a dismissal after the completion

of the plaintiff’s case “on the ground that upon the facts and the law

the plaintiff has shown no right to relief.”

¶ 15 When reviewing a motion under Rule 41(b)(1), the trial court

must determine “whether judgment in favor of the defendant is

justified on the evidence presented, not whether the plaintiff

established a prima facie case. Thus, the trial court sitting as trier

of fact may determine the facts and render judgment against the

6 plaintiff.” Am. Guarantee & Liab. Ins. Co. v. King, 97 P.3d 161, 165

(Colo. App. 2003) (citation omitted). The trial court

is afforded wide discretion in determining whether a motion for dismissal under [Rule] 41(b)(1) should be granted. Its ruling in this regard will not be disturbed on appeal in the absence of a showing that the findings and conclusions of the trial court are so manifestly against the weight of the evidence as to compel a contrary result.

Smith v. Weindrop, 833 P.2d 856, 857 (Colo. App. 1992). If

reasonable minds could differ over the inferences and conclusions

to be drawn from the plaintiff’s evidence, we must defer to the trial

court’s findings. Colo. Coffee Bean, LLC v. Peaberry Coffee Inc., 251

P.3d 9, 25 (Colo. App. 2010).

¶ 16 At the outset, the parties dispute the standard of review that

we must apply. Dr. Brone contends that this dispute hinges on the

interpretation of an unambiguous written contract; thus, she

argues that we should review the trial court judgment de novo. On

the other hand, the Cromers assert that because we are reviewing a

court’s judgment granting dismissal of claims under Rule 41(b)(1),

the correct standard of review is “whether judgment in favor of

7 defendant is justified on the evidence presented.” Gold Hill Dev. Co.,

L.P. v. TSG Ski & Golf, LLC, 2015 COA 177, ¶ 44 (citation omitted).

¶ 17 We agree with the Cromers. Dr. Brone’s appellate claims take

issue with the trial court’s factual findings based on the evidence

presented at trial. In essence, Dr. Brone argues that the evidence

was insufficient to support the trial court’s decision to grant the

Cromers’ Rule 41(b)(1) motion. But that is not the standard. We

afford the trial court broad discretion in determining whether to

grant a dismissal under Rule 41(b)(1), and we will not disturb its

findings unless they are “so manifestly against the weight of

evidence as to compel a contrary result.” Am. Guarantee & Liab.

Ins. Co., 97 P.3d at 165 (citation omitted).

III. Dr. Brone’s Claims

¶ 18 On appeal, Dr. Brone contends that the trial court erred by

granting the Cromers’ Rule 41(b)(1) motion because (1) the plain

language of the contract and the Cromers’ testimony prove that the

Cromers breached the contract; (2) the court failed to make

adequate findings of fact on her breach of good faith and fair

dealing claim; and (3) the court incorrectly focused on the presence

or absence of mold, rather than circumstances that might have

8 contributed to the growing of mold when analyzing if the Cromers

had fraudulently misrepresented or concealed material facts.

¶ 19 Because we conclude that the evidence in the record and

reasonable inferences that may be drawn therefrom support the

trial court’s findings, we reject Dr. Brone’s arguments. It makes no

difference whether we would have reached a contrary conclusion, as

long as the factual findings made by the trial court are supported

by competent evidence. See Lawry v. Palm, 192 P.3d 550, 558

(Colo. App. 2008) (noting an appellate court may not substitute its

conclusions for those of the trial court merely because there may be

evidence supporting a different result); M.D.C./Wood, Inc. v.

Mortimer, 866 P.2d 1380, 1384 (Colo. 1994) (reversing the court of

appeals because the trial court’s findings were supported by the

record).

¶ 20 First, Dr. Brone contends that the trial court erred because

the plain language of the contract and the Cromers’ testimony prove

that they breached the contract. Specifically, Dr. Brone argues that

the SPD — which required the Cromers to disclose whether certain

property conditions “now exist or have . . . ever existed” — failed to

disclose significant issues or defects, including the settling of the

9 patio, which permitted water to flow into the property’s foundation

and likely led to the growth of mold.

¶ 21 To prove a breach of contract, the plaintiff must show (1) the

existence of a contract; (2) performance by the plaintiff or some

justification for nonperformance; (3) failure to perform the contract

by the defendant; and (4) resulting damages to the plaintiff.

Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo. App. 2008).

Damages must be traceable to and the direct result of the

defendant’s contract breach. See City of Westminster v. Centric-

Jones Constructors, 100 P.3d 472, 478 (Colo. App. 2003).

¶ 22 Based on the evidence presented at trial, the court concluded

that Dr. Brone failed to prove her breach of contract claim. And

more specifically, the court found that Dr. Brone had failed to

establish that her damages resulted from the Cromers’ alleged

failure to disclose property defects. In other words, even if the

Cromers had failed to disclose required adverse material facts or

problems, the court found that Dr. Brone “failed to prove” that any

such failure caused the claimed damages.

¶ 23 The causal relationship between a failure of a contracting

party to perform in accordance with the contract and the damages

10 claimed is a quintessential factual question. H.M.O. Sys., Inc. v.

Choicecare Health Servs., Inc., 665 P.2d 635, 639 (Colo. App. 1983)

(noting that the causal relationship between breach of contract and

damages is a matter to be determined by the trier of fact). On this

record, we cannot say that the trial court’s finding in this regard

was not supported by the evidence and reasonable inferences

drawn from the record evidence.1

¶ 24 At trial, an employee of MIS testified that the company

collected air and surface samples from various locations within the

property and that, based on their analysis, no evidence of mold was

found at the time Dr. Brone purchased the property.

¶ 25 Dr. Brone testified about three separate water leaks at the

property — one of which resulted in approximately one inch of

water on the basement bathroom floor — that occurred after she

1 For this reason, even if we assume, without deciding, that the trial

court erroneously focused on the existence or non-existence of mold, rather than the circumstances that could cause mold to grow, the error is harmless because, in the end, the trial court found with record support that Dr. Brone failed to prove that her damages resulted from any actions or inactions of the Cromers. See C.R.C.P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”).

11 acquired the property and that were unrelated to defects that the

Cromers allegedly failed to disclose. This discharge of water was

significant enough to cause at least one bathroom wall to remain

wet for several days after the leak was repaired.

¶ 26 The court heard testimony from James Dennison, an expert in

mold identification, testing, and remediation scoping. Dennison

testified that he was aware of the three water leaks, but that he did

not believe any of the three leaks was sufficient to cause the mold

damage found at the property. But the trial court was not required

to credit this testimony. As with any testimony, lay or expert, the

fact finder may accept or reject any part of the testimony. Dennison

did, however, acknowledge that it was possible that the leak in the

basement bathroom (the one inch water leak) could have resulted in

mold growth. He conceded that he did not independently observe

the mold or water damage in the house, he did not inspect the

foundation to determine if water was leaking into the property, and

he based his assumption on the amount of water lost in each leak

only on information provided by Dr. Brone. Dennison also notably

testified that mold can appear as soon as a couple of days after a

water leak.

12 ¶ 27 Evidence was presented at trial showing that there was no

known mold issue before Dr. Brone purchased the property and

that at least one of the leaks at the property after Dr. Brone took

possession could have resulted in mold growth. Thus, the trial

court’s finding that Dr. Brone did not prove that the Cromers’

alleged nondisclosure was the proximate cause of her damages is

supported by the record. Because “[i]t is the trial court’s sole

province” — not ours — “to resolve disputed factual issues and to

determine witnesses’ credibility, the weight to accord testimony,

and the inferences to be drawn from the evidence,” In re Estate of

Owens, 2017 COA 53, ¶ 22 (citation omitted), we may not disturb

that finding.

¶ 28 Dr. Brone identifies evidence that she contends supports her

position and contradicts the trial court’s findings of fact. However,

she misunderstands the role of this court on appeal. While it is

true that evidence in the record could support a conclusion

different from that of the trial court, where reasonable minds could

differ over the inferences and conclusions to be drawn from the

evidence at the conclusion of the plaintiff’s case, then an appellate

court cannot disturb the findings and conclusions of the trial court.

13 R.A. Reither Constr., Inc. v. Wheatland Rural Elec. Ass’n, 680 P.2d

1342, 1345 (Colo. App. 1984). Thus, we cannot substitute our view

of the facts for that of the trial court.

¶ 29 Next, Dr. Brone contends that the trial court erred by

dismissing her breach of good faith and fair dealing claim without

making adequate findings of fact. Again, we disagree.

¶ 30 “The covenant of good faith and fair dealing exists in every

contract to enforce the reasonable expectations of the parties.”

Amoco Oil Co. v. Ervin, 908 P.2d 493, 499 (Colo. 1995). “A party

breaches the implied duty of good faith and fair dealing by using

the ‘discretion conferred by the contract to act dishonestly or to do

an act outside of the accepted commercial practices to deprive the

other party of the benefit of the contract.’” Dream Finders Homes

LLC v. Weyerhaeuser NR Co., 2021 COA 143, ¶ 66 (citation omitted).

¶ 31 Dr. Brone argues that she expected to receive “honest

information about everything [the Cromers] knew about the house

and what they did to the house,” for the Cromers to disclose

“everything about the house,” and that they would provide accurate

and complete disclosures.

14 ¶ 32 However, the implied duty of good faith and fair dealing

applies only “when one party has discretionary authority to

determine certain terms of the contract,” and the covenant may be

relied on “only when the manner of performance under a specific

contract term allows for discretion on the part of either party.”

Amoco Oil Co., 908 P.2d at 498. The contract did not provide the

Cromers with any discretionary authority over the documents they

were required to turn over to Dr. Brone; rather, the contract created

a mandatory obligation that the Cromers turn over particular

documents and that they disclose known material facts and defects

to Dr. Brone through completion of the SPD. Thus, it is unclear

how the duty of good faith and fair dealing creates any obligations

independent of the terms of the contract.

¶ 33 Regardless of the absence of factual findings specific to the

good faith and fair dealing claim in the trial court’s ruling, the

court’s general findings of fact contain sufficient justification for

dismissing Dr. Brone’s claim. See In re Marriage of Rozzi, 190 P.3d

815, 822 (Colo. App. 2008) (noting that a trial court’s order must

contain findings of fact and conclusions of law sufficiently explicit

to give an appellate court a clear understanding of the basis of its

15 order and to enable appellate review); Moeller v. Colo. Real Est.

Comm’n, 759 P.2d 697, 703 (Colo. 1988) (“[T]hough the factual

findings of the trial court are brief and undetailed, we are able to

determine the basis of the trial court’s judgment from its findings

and a review of the record.”).

¶ 34 Notably, the court concluded that, based on Mr. Cromer’s

testimony at trial, he had acted reasonably when completing the

SPD.2 At trial, Mr. Cromer explained how he filled out the SPD, and

why he included and excluded certain information. For example, he

said that he did not disclose items in the “cracks, heaving, or

settling problems” section of the SPD because the settling observed

at the property was “not structural” and was affecting only the

“floating concrete slabs.” Mr. Cromer also said that he did not

report any drainage issues at the property because he did not have

any issues with flooding or drainage while he lived there.

2 We agree with Dr. Brone that the trial court’s focus on whether

the Cromers’ conduct was reasonable was mistaken. The question was whether the Cromers complied with their contractual obligations, not whether they acted reasonably. However, this error was harmless in view of the trial court’s ultimate finding that the Cromers’ actions or inactions did not cause the claimed damages.

16 ¶ 35 The court also found, with record support, that Dr. Brone was

aware or put on notice of many of the issues she now claims were

not disclosed. On cross-examination, Dr. Brone testified that she

was aware of

• the missing rain collar;

• the sloping issues toward the house;

• potential issues with lot drainage;

• evidence of concrete lifting; and

• stains that might be evidence of leaking.

¶ 36 Because the record and the trial court’s overall factual

findings provide the basis for the trial court’s conclusion, the record

is sufficient for appellate court review. And because the record

supports the court’s decision to dismiss the breach of good faith

and fair dealing claim, we will not disturb the trial court’s order.

17 ¶ 37 Lastly, Dr. Brone contends that the trial court erred in

dismissing her claims of fraudulent misrepresentation and

fraudulent concealment.3 We discern no error.

¶ 38 To establish a claim of fraudulent concealment, a plaintiff

must prove (1) concealment of a material existing fact that in equity

or good conscience should be disclosed; (2) the defendant’s

knowledge that the fact is being concealed; (3) the plaintiff’s

ignorance of the fact; (4) the defendant’s intent that the plaintiff act

on the concealed fact; and (5) the plaintiff’s action on the

concealment resulting in damages. Burman v. Richmond Homes

Ltd., 821 P.2d 913, 918 (Colo. App. 1991).

¶ 39 The trial court found that there was no evidence that the

property improvements made by the Cromers were done for the

purpose of concealing mold, and that the Cromers did not engage in

any “false representation or nondisclosure or concealment.” Again,

evidence in the record supports this finding.

3 On appeal, Dr. Brone states that the trial court erred in

dismissing both her fraudulent misrepresentation claim and her fraudulent concealment claim. However, in her analysis, Dr. Brone only develops her arguments as they relate to the issue of fraudulent concealment. Thus, we only address her arguments as they relate to fraudulent concealment.

18 ¶ 40 Mr. Cromer testified that, before the sale, he took a variety of

actions to improve and renovate the property. He stated that he

painted; replaced flooring, countertops, and the backsplash;

installed a new roof and a new driveway; and mudjacked the

walkway and patio areas. Mr. Cromer expressly stated that these

activities were upgrades to the property to ready the home for sale,

and that none of the work was done in response to water damage.

He also said that none of the contractors who worked on the

property informed him of any leaks, water damage, or mold. And,

while living at the property, Mr. Cromer said that he never observed

any water intrusion, water damage, or mold, and that he was not

aware of any floods that affected the property. Mr. Cromer testified

that he was unaware of any material defects or adverse facts

pertaining to the property, and that he did not withhold or conceal

any information from the SPD.

¶ 41 Sitting as the trier of fact, the court was within its discretion to

weigh the credibility of witnesses, as well as the probative value of

the evidence, and credit Mr. Cromer’s testimony. Deas v. Cronin,

544 P.2d 991, 993 (Colo. 1976).

19 ¶ 42 Because the evidence supports the trial court’s order

dismissing Dr. Brone’s claims under Rule 41(b)(1), we cannot

disturb its judgment.

IV. The Cromers’ Request for Appellate Attorney Fees and Costs

¶ 43 The Cromers request appellate attorney fees and costs under

C.A.R. 39.1 and C.R.C.P. 121, section 1-22. Under these

provisions, a party is entitled to recover the costs of attorney fees as

determined by the express terms of the underlying contract. The

contract here provides that the court “must award to the prevailing

party all reasonable costs and expenses, including attorney fees,

legal fees and expenses.” Because the Cromers are the prevailing

party in this litigation, we conclude that they are entitled to

appellate attorney fees and costs under the contract.

V. Disposition

¶ 44 The judgment of the trial court is affirmed, and the case is

remanded to the trial court to determine and award the Cromers

their reasonable appellate attorney fees and costs.

JUDGE DUNN and JUDGE TOW concur.