25CA0111 Bruce v Aurora Convention Center 11-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0111 El Paso County District Court No. 23CV30432 Honorable Hilary Gurney, Judge
Douglas Bruce,
Plaintiff-Appellant,
v.
Aurora Convention Center Hotel Lessee, LLC; Marriott Hotel Services, LLC; and Colorado Christian University
Defendants-Appellees.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE TOW Lum and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 6, 2025
Douglas Bruce, Pro Se
Childs McCune Michalek LLC, Sarah Van Arsdale Berry, Karin B. Williamson, Denver, Colorado, for Defendants-Appellees Aurora Convention Center Hotel Lessee, LLC and Marriott Hotel Services, LLC
Gordon Rees Scully Mansukhani LLP, John R. Mann, Greg S. Hearing II, Brittney Bulawa, Denver, Colorado, for Defendant-Appellee Colorado Christian University *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 Plaintiff, Douglas Bruce, appeals the district court’s order
granting summary judgment in favor of defendants, Aurora
Convention Center Hotel Lessee, LLC, d/b/a Gaylord Rockies
Resort & Convention Center (Gaylord); Marriott Hotel Services, LLC
(Marriott); and Colorado Christian University (CCU). We affirm the
judgment and remand for the determination of appellate attorney
fees.
I. Background
A. Factual Background
¶2 The following facts are taken from Bruce’s third amended
complaint and the submissions of the parties on the motions for
summary judgment.
¶3 Bruce attended a conference sponsored by CCU. The
conference took place at the Gaylord. Bruce approached the stage
during an event to hand papers to the speaker. As he returned to
his seat from the stage area, Bruce tripped and fell to the floor,
landing on a monitor that was acting as the speaker’s teleprompter.
Bruce suffered injuries as a result of the fall.
1 B. Procedural Background
¶4 Bruce brought claims under the Colorado Premises Liability
Act (PLA), § 13-21-115, C.R.S. 2025, against Gaylord and its
property manager, Marriott. Bruce filed multiple amended
complaints, adding PLA claims against CCU and two entities that
were involved in the management or set up of the conference,
ShowPro of South Florida, Inc. (ShowPro) and Legacy Productions,
Inc. (Legacy). In addition, Bruce asserted common law negligence
claims in the alternative against ShowPro and Legacy. ShowPro
was dismissed from the case after reaching a settlement with Bruce.
Shortly thereafter, Gaylord, Marriott, and CCU filed a joint motion
for summary judgment (the joint motion).1 Legacy separately joined
in this motion. Among other things, the parties argued that
summary judgment was appropriate because “there was no
dangerous condition present, [and] there was no breach of the
1 Gaylord and Marriott, though separate entities, were represented
by the same counsel, who referred to them collectively in the summary judgment briefing as “Marriott.” Curiously, defendants and Bruce at times appear to treat these two entities as a single defendant. We attempt to unravel the confusion this creates below.
2 standard of care.”2 The joint motion reflects that it was served on
Bruce both by mailing it to his post-office box and emailing it to his
personal account.
¶5 More than two weeks after the deadline to respond to the joint
motion, Bruce filed a response that, though styled as an affidavit,
was not dated, signed, or notarized. The next day, Bruce filed a
substantially similar, though not identical, response that was
dated, signed, and notarized. Later that day, the district court
issued its order granting the joint motion.
¶6 The district court granted summary judgment in favor of all
four remaining defendants on the PLA claims.3 Specifically, the
court concluded that a video submitted as an exhibit to the joint
motion unequivocally depicted Bruce tripping over the monitor,
which was at least as high as Bruce’s knee and sitting in plain
2 The parties also challenged whether CCU and Legacy were
landowners under the PLA. The district court did not grant summary judgment on that basis, however, so we do not discuss that issue further. 3 In the order, the district court classified Legacy’s motion as “a
motion for partial summary judgment” because it did not provide any argument on the negligence claim. Several months later, the district court granted Legacy’s second motion for summary judgment, resolving this final claim.
3 sight. The court observed that the video established that there was
room to walk around the monitor, there were lights to illuminate
the floor, and the monitor was illuminated when Bruce walked into
it. The court further noted that, to the extent Bruce alleged that he
tripped over electrical wires taped to the floor, as opposed to the
monitor, he failed to present any evidence establishing the existence
of any such tangle or mass of wires or that any such wires created a
dangerous condition.
¶7 In light of this video, the court determined that Bruce had
failed to satisfy his burden of bringing forward sufficient evidence to
show the existence of a dangerous condition. The district court
additionally concluded that Bruce had not provided any evidence to
suggest that any of the remaining defendants knew or should have
known that the monitor was a dangerous condition.
II. Bruce’s Noncompliant Brief
¶8 Initially, we note that neither Bruce’s notice of appeal nor his
opening brief complies with the appellate rules. The notice of
appeal does not include a general statement of the nature of
controversy; the judgment, orders, or parts being appealed; or an
advisory listing of the issues to be raised on appeal. See C.A.R.
4 3(d)(2)(A)-(B), (d)(3). Bruce’s opening brief, which appears to be a
substantially verbatim repeat of the notice of appeal, does not
include a certificate of compliance with all of C.A.R. 28; a table of
contents with page references; a table of authorities; a statement of
the issues presented for review; a concise statement identifying the
ruling, judgment, or order presented for review; a summary of the
arguments; or discrete arguments set out under separate headings.
See C.A.R. 28(a)(1)-(7).
¶9 In sum, Bruce’s filings are a string of assertions without any
citations to the record or case law. In light of this substantial
noncompliance, Gaylord requests that Bruce’s appeal be dismissed.
Doing so would be within our discretion and, in fact, may well be
warranted in this case. See C.A.R. 38(a) (“The appellate court may
dismiss an appeal . . . for the failure to comply with any of its
orders or these appellate rules. . . .”). As a pro se party, Bruce must
comply with procedural rules to the same extent as a represented
party. See Adams v. Sagee, 2017 COA 133, ¶ 10.
¶ 10 Nevertheless, we note that Gaylord and CCU were able to file
coherent briefs that adequately state their positions as to the
propriety of the district court’s summary judgment order. Thus, we
5 exercise our discretion to address the merits of Bruce’s contentions
to the extent they are adequately developed.
III. Scope of this Appeal
¶ 11 As a related preliminary matter, we pause to discuss what is
properly before us, both in terms of parties and claims, in this
appeal.
A. Parties to the Appeal
¶ 12 In the caption of Bruce’s notice of appeal, he identifies
defendants-appellees as “Aurora Convention Center Hotel Lessee
and Colorado Christian University.” Maintaining that caption,
notwithstanding the parties designated in it, Bruce asserts in both
his notice of appeal and his opening brief that he “continues his
suit on appeal with CCU and Marriott only.” In addition, Bruce’s
background section of his opening brief begins with the incorrect
statement that “four corporate defendants were served.” As noted
above, there were five corporate defendants in this case: Gaylord,
Marriott, CCU, ShowPro, and Legacy. Likely flowing from this
caption, Marriott did not file an answer brief or otherwise actively
6 participate in this appeal;4 even though all of Gaylord’s pleadings in
the district court were also filed on behalf of Marriott, Gaylord’s
answer brief did not mention Marriott at all. And although both
parties identified in the caption filed answer briefs, Bruce complains
in his reply brief that one appellee never filed an answer brief.
Presumably, Bruce is referring to either Marriott or
Legacy — though which one is unclear.5
¶ 13 This confusion seems to stem, at least in part, from the fact
that Gaylord and Marriott were represented by the same counsel,
who at times treated these separate corporate entities as a single
defendant. For example, the joint motion — which referred to
4 Shortly after Bruce filed the notice of appeal, attorneys Karin
Williamson and Julia Morgenthau filed an entry of appearance “on behalf of” Gaylord only. Several months later, however, in a notice informing the court that their firm’s name and address had changed, these attorneys identified themselves in both the caption and signature block as “Attorneys for Defendants [Gaylord] and [Marriott].” By signing this filing, these attorneys entered their appearance before this court as counsel for Marriott as well as Gaylord. See C.A.R. 5(a). 5 There is no provision in the appellate rules for imposing a default
judgment, as Bruce appears to suggest is warranted.
7 Gaylord and Marriott collectively as Marriott6 — contained a
footnote explaining the procedural history of the case in which
counsel said, “ShowPro has since been dismissed from this matter
leaving the remaining three defendants: Marriott, Legacy, and CCU.”
(Emphasis added.)
¶ 14 Under a strict application of the appellate rules, we could
conclude that Bruce only appealed the judgment as to either
Gaylord or Marriott but not both. But choosing which one would be
wholly arbitrary on this record since the filings mention one only in
the caption and the other only in the body. Moreover, we are to
liberally construe a pro se party’s pleadings. Adams, ¶ 10.
Furthermore, given that all three parties have contributed to the
confusion — Bruce through the inconsistency between the caption
and the body of his appellate filings and Gaylord and Marriott
through their joint counsel’s alternating treatment of the entities as
merely aligned or as a single entity — we deem Bruce’s appeal to be
6 We do not suggest that referring to separate but aligned parties by
a collective defined term in court filings is inappropriate. Nor do we suggest that doing so somehow merges the aligned parties into a single party. We note it here simply as context for the confusion as to which entities are, or should be, parties to this appeal.
8 directed at the judgment entered in favor of both Gaylord and
Marriott (as well as CCU). In addition, given the misleading caption
and the muddled notice of appeal and opening brief, and in light of
the fact that every filing by Gaylord and Marriott’s joint counsel in
the district court has been filed on behalf of both parties, we deem
the answer brief filed by Gaylord’s counsel to also be filed on behalf
of Marriott.7 In our view, this resolution of the confusion avoids
prejudicing any party and places all parties in the appellate posture
they actually contemplated.
B. Issues on Appeal
¶ 15 Equally unclear is what, precisely, Bruce intends to appeal. In
both the notice of appeal and the opening brief, he purports to
appeal “the actions and orders taken by Division 14 of the District
Court in El Paso County.” But, as noted, the notice of appeal does
not identify the specific “judgment, order[] or parts being appealed.”
C.A.R. 3(d)(2)(B). And the brief does not clearly lay out separate
appellate issues or claims.
7 To balance the goals of avoiding confusion while maintaining
brevity, we refer to the two parties collectively as “Gaylord/Marriott” for the remainder of this opinion.
9 ¶ 16 Instead, Bruce’s briefs contain largely conclusory assertions
without any supporting references to case law or the appellate
record. It is “not the duty of the reviewing court to search the
record for evidence to support bald assertions.” Brighton Sch. Dist.
27J v. Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App.
1996), aff’d, 940 P.2d 348 (Colo. 1997). And we will not address
undeveloped or conclusory appellate arguments. Woodbridge
Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12,
aff’d, 2021 CO 56. Finally, liberal construction of a pro se party’s
pleadings “does not include inventing arguments not made by the
pro se party.” Minshall v. Johnston, 2018 COA 44, ¶ 21.
¶ 17 As best we can glean from Bruce’s opening brief, he intends to
challenge virtually every decision made by the district court. But
the following contentions are wholly undeveloped:
• “The judge denied [Bruce’s] continued use of e-filing
(email) systems allowed to attorneys.” He cites no
provision of law that requires pro se parties to be
allowed to e-file or file and serve by email.
• The court mistakenly “contend[ed] [Bruce] had not
objected to withdrawal of his counsel.” He points to
10 nothing in the record that demonstrates that he filed
any such objection with the court before the court ruled
on the withdrawal request. See C.R.C.P. 121, § 1-1(2)(b)
(The court may grant a motion to withdraw if the motion
“has been filed and served on the client” and “the
client . . . consent[s] in writing at or after the time of the
service of said motion, or at least 14 days have expired
after service.”).
• The court allowed counsel to withdraw “with no stated
good cause and no hearing.” He cites no authority
establishing a good cause threshold or a requirement
for a hearing before counsel may be permitted to
withdraw.
• The court improperly muted him during a telephonic
status conference. Because he provides no transcript of
the hearing, we must presume that it would support the
court’s decision to do so. See EnCana Oil & Gas (USA),
Inc. v. Miller, 2017 COA 112, ¶ 16 n.4.
• The court inappropriately used a street address that
has no mail receptacle instead of his post-office box. He
11 does not allege that any prejudice, such as missed filing
deadlines, resulted from the delays caused by these
incorrect mailings.8 See Wunder v. Dep’t of Revenue,
867 P.2d 178, 181 (Colo. App. 1993) (finding plaintiff
did not demonstrate any prejudice resulting from
improper notification during judicial proceedings).
• The court mishandled his C.R.C.P. 97 motion to
disqualify the judge because “Rule 97 allows referral to
8 Bruce alleges that these mailing mistakes constituted an effort by
the district court judge to “block[] contact to and by” Bruce. Similarly, Bruce surmises that the judge’s ruling were, at least in part, influenced by the judge’s “hate” of Bruce’s political views and, thus, aimed “to deny [Bruce] money” for his injuries. Obviously, the court was mistaken in using a street address instead of the post-office box provided in Bruce’s complaint and on his counsel’s motion to withdraw — especially when the court file reflects that the first such mailing was returned as undeliverable. But judges do not generally address the mail themselves; that task is handled by the judicial branch’s case management system or by court staff. In short, there is no basis whatsoever for Bruce inferring any ill will or “hatred” on the part of the district judge. See People v. Thoro Prods. Co., 45 P.3d 737, 747 (Colo. App. 2001) (“Legal rulings in a case are, by themselves, insufficient to demonstrate a bias or prejudice against a party.”), aff’d, 70 P.3d 1188 (Colo. 2003). Such scurrilous allegations have no place in litigation; thus, we hereby put Bruce on notice that this court may summarily strike any future such filings and may also impose sanctions, including dismissal and an award of attorney fees. See Martin v. Essrig, 277 P.3d 857, 861-62 (Colo. App. 2011).
12 the presiding judge, but the trial judge denied that too.”
He cites no authority requiring such a referral or
demonstrating that the judge’s decision not to do so on
the facts of this case was improper and offers no other
argument pertaining to the court’s denial of the motion
to disqualify.
Because these contentions are conclusory and undeveloped, we do
not address them further. See Woodbridge Condo. Ass’n, ¶ 41 n.12.
¶ 18 In addition, we note Bruce’s passing comment in his opening
brief that Gaylord/Marriott and CCU have “prematurely billed
appellant for their costs.” Costs are a separate issue from a merits
judgment. Oster v. Baack, 2015 COA 39, ¶ 20. Although
Gaylord/Marriott and CCU have filed bills of costs in the trial court,
the district court has not acted on them. Thus, the issue of costs is
not before us in this appeal.
¶ 19 Liberally construing Bruce’s briefs, we glean only three
appellate contentions that are even arguably sufficiently articulated
and developed: The trial court erred by (1) denying or not ruling on
his multiple requests to continue trial; (2) denying his request to
reopen discovery and amend his complaint to add allegations
13 regarding a subsequent injury he alleges was causally related to the
fall at issue in this case; and (3) granting the motion for summary
judgment in favor of Gaylord/Marriott and CCU. Because our
resolution of the third issue dispenses with the need to address the
first two, we turn to that first.
IV. Summary Judgment
¶ 20 As best we can discern, Bruce lodges several challenges
against the summary judgment order, both as to its form and its
merits. We address them in turn.
A. Form of the Order
¶ 21 In his opening brief, Bruce appears to argue that the order
granting summary judgment did not constitute a final order
because it was not titled “final order” and because, though the
court “granted” the motion for summary judgment, it did not
“dismiss” the case. Bruce misunderstands the effect of granting
summary judgment. Provided the order is reduced to writing and
signed, see C.R.C.P. 58(a), an order granting a defendant’s motion
for summary judgment is sufficient to resolve all claims addressed
by the order, see ISG, LLC v. Ark. Valley Ditch Ass’n, 120 P.3d 724,
730 (Colo. 2005) (deeming it wholly immaterial whether an order is
14 labelled a dismissal or a summary judgment because the legal
propriety of the order and its ultimate effect are the same).
¶ 22 Bruce also objects that the court did not vacate the trial date.
But at that time, the common law negligence claim against Legacy
remained pending. Thus, there was still a possibility that the case
would proceed to trial when the joint summary judgment motion
was granted. For similar reasons, the court could not, as Bruce
suggests, label the order granting the joint summary judgment
motion a “final order.” An order is not final for purposes of appeal
until it resolves all claims against all parties. C.R.C.P. 54(b). Had
the court so labeled the order, as Bruce insists should have been
done, it would have potentially confused the parties as to the
deadline for filing an appeal.
¶ 23 In short, we discern no error in the form of the court’s order
granting summary judgment.
B. Merits of the Order
¶ 24 Turning to the merits of the summary judgment order, Bruce
asserts the following: (1) the court incorrectly said Bruce had failed
to file an affidavit in opposition to the joint motion;
(2) Gaylord/Marriott and CCU failed to file any affidavits with the
15 joint motion; and (3) videos other than the one relied on by the
court would show a different depiction of the “distances, angles,
and degree of lighting.” After addressing the standard of review and
the applicable procedure for summary judgment motions, we
discuss, and reject, each contention.
1. Standard of Review and Applicable Procedure
¶ 25 We review de novo the district court’s order granting summary
judgment. Ruiz v. Chappell, 2020 COA 22, ¶ 8. The nonmoving
party is entitled to all favorable inferences from the undisputed
facts, and all doubts as to the existence of a triable issue of fact are
resolved against the moving party. Id.
¶ 26 A defendant seeking summary judgment must bring forth
sufficient information to demonstrate the absence of a genuine
issue of material fact. deBoer v. Jones, 996 P.2d 754, 755 (Colo.
App. 2000). This may be done not only through any affidavits that
are filed but also through pleadings, depositions, and responses to
discovery. C.R.C.P. 56(c). Where the issue is not one on which the
moving party would bear the ultimate burden of persuasion at trial,
the moving party’s initial burden is satisfied “by showing the court
that there is an absence of evidence in the record to support the
16 nonmoving party’s case.” Continental Air Lines, Inc. v. Keenan, 731
P.2d 708, 712 (Colo. 1987).
¶ 27 Once the moving party has cleared this hurdle, the burden
shifts to the plaintiff to produce enough evidence to demonstrate
the existence of a triable issue of fact. deBoer, 996 P.2d at 756. At
that point, the nonmoving party “may not rest on mere allegations
or demands in [the] pleadings but must provide specific facts
demonstrating a genuine issue for trial.” Rocky Mountain Expl., Inc.
v. Davis Graham & Stubbs LLP, 2018 CO 54, ¶ 27. If the
nonmoving party fails to meet this burden, entry of summary
judgment in favor of the moving party is proper. Stalder v. Colo.
Mesa Univ., 2024 COA 29, ¶ 19.
2. Summary Judgment Order
a. Bruce’s Affidavit
¶ 28 We agree with Bruce that he filed an affidavit in opposition to
the joint motion. But we do not agree that the district court’s
misstatement in this regard requires reversal.
¶ 29 As noted, Bruce filed two late responses to the joint motion.
Both were titled the same — “Plaintiff’s Interim Answer to Joint
Motion for Summary Judgment” — and were styled with
17 “AFFIDAVIT” at the beginning.9 While unorthodox in form, these
filings were effectively offered as verified filings. Cf. People v.
Anderson, 828 P.2d 228, 231 (Colo. 1992) (recognizing that a
verified pleading may suffice for an affidavit). Nevertheless, because
the first version filed was undated, unsigned, and unnotarized, the
court did not err by declining to treat it as an affidavit. And given
that the second one was filed mere hours before the district court
issued its ruling, it is not clear whether the court saw the signed
and notarized version.10
¶ 30 Moreover, the district court did not grant summary judgment
because Bruce failed to file an affidavit. Rather, the court ruled
against Bruce because he failed to satisfy his burden of
demonstrating a triable issue of fact once the burden to do so
shifted to him. Indeed, the district court observed that even if it
9 Bruce did not explain what about the response was “interim.” 10 Bruce mentions another affidavit, but that was filed as a motion
to reconsider the order granting summary judgment. Obviously, the court could not have erred by not considering an affidavit that had not yet been filed. And, in any event, affidavits filed in a motion to reconsider after summary judgment has been granted cannot be used to create a triable issue of fact. Graven v. Vail Assocs., Inc., 888 P.2d 310, 316 (Colo. App. 1994), rev’d on other grounds, 909 P.2d 514 (Colo. 1995).
18 were to treat Bruce’s “interim answer” as an affidavit, the filing did
not establish a triable issue of fact.
¶ 31 Because the trial court considered, in the alternative, the
representations in Bruce’s response to the summary judgment as if
they had been presented in an affidavit, the error in not considering
the filing to be an affidavit was harmless. See In re Mendy
Brockman Disability Tr., 2022 COA 75, ¶ 45 (finding any procedural
error committed by the court was harmless because it reached the
correct outcome).
b. Lack of Affidavits from Gaylord/Marriott or CCU
¶ 32 To the extent Bruce contends the joint motion should have
been denied because Gaylord/Marriott and CCU failed to file
supporting affidavits, we disagree.
¶ 33 A motion for summary judgment may be filed “with or without
supporting affidavits.” C.R.C.P. 56(a). Affidavits are not necessary
if the movant satisfies its burden of demonstrating a lack of triable
issue of fact through other means, including the pleadings
themselves or materials obtained during discovery. C.R.C.P. 56(c).
19 ¶ 34 Because Gaylord/Marriott and CCU presented proper
materials under C.R.C.P. 56, their lack of affidavits was not fatal to
their joint motion for summary judgment.
c. Video Recording
¶ 35 We now turn to the heart of this appeal: Did the district court
err by considering the video submitted with the joint motion to be
dispositive, or should it have considered, as Bruce argues, that
other videos would show a different depiction of the “distances,
angles, and degree of lighting”? We conclude it did not.
¶ 36 As noted, Gaylord/Marriott and CCU submitted as Exhibit D
to the joint motion a video recording they had received in discovery
from one of the other defendants. The district court explicitly relied
on this video recording in granting the joint motion.
¶ 37 After Bruce filed his opening brief on appeal, Gaylord/Marriott
and CCU moved to supplement the record with Exhibit D, which
this court granted. In his reply brief, Bruce asserts that he “never
saw a copy of the clip sent by the trial court.” That is his own fault.
The appellate record was available for him to review had he chosen
to do so. In any event, he clearly saw the video during the briefing
20 on summary judgment, as he commented on what it depicts in his
“interim answer.”
¶ 38 He also complains that this court “did not give the parties time
to review clips before ending regular briefing time,” and that he
“waited for the new briefing schedule, but it never came.” But
Bruce never requested additional time to file the reply brief.11
¶ 39 Nor did Bruce move to supplement the record under
C.A.R. 10(f)(2). Instead, he attempted to file attachments with his
reply brief, including at least one additional video recording that he
described as depicting the walkway in front of the stage as being
very dark. However, those attachments were stricken because that
is not the proper way to supplement the appellate record.
¶ 40 Moreover, we could not have supplemented the record with
these materials even if he had filed such a request. Bruce did not
provide the district court with the materials in his response to the
11 In his reply brief, Bruce said he “d[id] not object to one or both
defendants filing a supplemental brief that argue[d] any video clip or other ‘facts,’” provided he was given the opportunity to file a reply. It is unclear why Gaylord/Marriott or CCU would need to supplement the argument they just filed. To the extent Bruce intended this statement to be a request for more time to file a reply brief, that would make little sense, since the request was contained in the reply brief itself.
21 joint motion. Before the district court entered summary judgment,
Bruce’s only mention of the existence of other possible video
evidence was an assertion in his “interim answer” that he would
present at trial “a VIDEO of the actual fall.” But he did not include
any such video in his summary judgment briefing. We may not
consider any material that was not before the trial court. In re
Edilson, 637 P.2d 362, 364-65 (Colo. 1981) (declining to consider
materials attached to appellate pleadings that were not in the
appellate record); C.A.R. 10(a)(1) (providing that the record on
appeal consists of all materials “filed in the trial court case”).
¶ 41 The material before the trial court included the following. In
the third amended complaint, Bruce alleged that he “tripped over
an object or objects which were lying on the floor in the walkway”
and that “[t]he lighting in the walkway in front of the stage was
inadequate for patrons to safely walk.” In his sworn “interim
answer,” he averred that he “tripped over a tangle of black wires on
an [sic] darkened floor with poor lighting.” He further argued that
the various defendants had not disclosed any expert to testify about
the proper placement of monitors. But, significantly, Bruce — as
the party with the ultimate burden of proving liability at trial — did
22 not offer any expert either and, in fact, offered no evidence other
than his conclusory allegation that the placement of the wires was
dangerous.
¶ 42 Countering that, the district court had before it a video
recording clearly depicting a dimly, though nevertheless adequately
lit, area. The video clearly shows Bruce tripping not over any cords
or wires but over a plainly visible thigh-high monitor. Nothing in
the video depicts anything that could be considered a dangerous
condition. And, again, Bruce presented no evidence to the district
court that it was. Instead, he insisted he would testify at trial and
that was enough. But it is not enough when the only video
evidence before the court conclusively belied his proposed
testimony. See Andersen v. Lindenbaum, 160 P.3d 237, 239 (Colo.
2007) (“To avoid summary judgment, the evidence presented in
opposition to such a motion must therefore be sufficient to
demonstrate that a reasonable jury could return a verdict for the
non-moving party.”).
¶ 43 Under these circumstances, we, like the district court,
conclude that Bruce did not satisfy his burden to bring forward
sufficient evidence of the existence of a dangerous condition.
23 Accordingly, the district court did not err by granting summary
judgment in favor of Gaylord/Marriott and CCU.
V. Bruce’s Remaining Contentions
¶ 44 In light of our conclusion that Gaylord/Marriott and CCU were
entitled to summary judgment, we need not belabor Bruce’s
remaining contentions. Even if the court had continued the trial
date as he requested, it would not have changed the outcome of the
joint motion.12 Similarly, reopening discovery related to injuries
suffered during a later fall and whether those injuries were related
to Bruce’s tripping over the monitor would have no impact on
whether Bruce had presented any evidence of a dangerous
condition. In essence, the propriety of the summary judgment
moots Bruce’s other contentions.
VI. Attorney Fees
¶ 45 Gaylord/Marriott requests attorney fees under C.A.R. 38.
CCU does not request fees.
¶ 46 An appellate court may award attorney fees as a sanction for
noncompliant briefing. C.A.R. 38(a). It may also award attorney
12 Bruce does not argue that he needed additional time to retain
counsel in order to better defend against the joint motion itself.
24 fees if it determines an appeal is frivolous. C.A.R. 38(b). “A claim is
frivolous if the proponent has no rational argument to support it
based on evidence or the law.” Black v. Black, 2020 COA 64M,
¶ 133 (quoting Zivian v. Brooke-Hitching, 28 P.3d 970, 974 (Colo.
App. 2001)).
¶ 47 A court may award fees against a pro se party only if it
determines that the party “clearly knew or reasonably should have
known that [his] action or defense, or any part [thereof], was
substantially frivolous.” § 13-17-102(6), C.R.S. 2025. An appeal
can be frivolous in two ways:
First, where an appeal is taken in a case in which “the judgment by the tribunal below was so plainly correct and the legal authority contrary to appellant’s position so clear that there is really no appealable issue,” the appeal is held to be “frivolous as filed.” Second, even in cases in which genuinely appealable issues may exist, so that the taking of an appeal is not frivolous, the appellant’s misconduct in arguing the appeal may be such as to justify holding the appeal to be “frivolous as argued.”
Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006)
(emphasis omitted) (quoting Dungaree Realty, Inc. v. United States,
30 F.3d 122, 124 (Fed. Cir. 1994)).
25 ¶ 48 We conclude that this appeal was frivolous as argued. And we
conclude that Bruce knew or should have known that it was. A
division of this court previously warned Bruce that noncompliance
with the appellate rules could result in sanctions. Bruce v. City of
Colorado Springs, 252 P.3d 30, 32 (Colo. App. 2010). And in this
case, Gaylord/Marriott’s answer brief pointed out that Bruce’s
opening brief failed to comply with the appellate rules in that it
lacked any citation to the record or legal authority supporting his
arguments. Yet, in his reply brief, he again failed to cite either the
record, any statute, or any case law. In fact, Bruce has never
offered any legally based argument against the court’s summary
judgment order. Thus, an award of fees is appropriate.
¶ 49 Because the district court is better suited to conduct any
necessary evidentiary proceedings related to determining the
reasonableness and necessity of the attorney fees sought, we
exercise our discretion under C.A.R. 39.1 and remand this issue to
the district court to determine and award Gaylord/Marriott its
reasonable appellate attorney fees. See Cronk v. Bowers, 2023 COA
68M, ¶ 36.
26 VII. Disposition
¶ 50 The judgment is affirmed, and the case is remanded to the
district court to assess a reasonable attorney fees award.
JUDGE LUM and JUDGE GRAHAM concur.