24CA1749 Davis v Wolf 08-07-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1749 Larimer County District Court No. 23CV212 Honorable Laurie K. Dean, Judge
Dana R. Davis,
Plaintiff-Appellant,
v.
Jeffrey E. Wolf,
Defendant-Appellee.
ORDER AFFIRMED
Division V Opinion by JUDGE JOHNSON Welling and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025
Dana R. Davis, Pro Se
SGR, LLC, Heather A. Salg, Jean M. Peterson, Denver, Colorado, for Defendant- Appellee ¶1 Plaintiff, Dana R. Davis (Davis), appeals the district court’s
order dismissing her claims against defendant, Jeffrey E. Wolf (Wolf)
for failure to prosecute. On appeal, Davis contends that the district
court (1) lacked subject matter jurisdiction; (2) violated her due
process rights; and (3) violated her equal protection rights. We
disagree with Davis’ contentions and, therefore, affirm.
I. Background
¶2 In October 2021, Davis was involved in a motor vehicle
collision with Wolf. The police originally cited Davis for careless
driving, but that case was dismissed. She filed this lawsuit alleging
that Wolf caused the accident and damage to her car. She asserted
one negligence claim, eight claims of negligence per se, and one
claim of intentional infliction of emotional distress.
¶3 Davis filed a motion for summary judgment, arguing that the
court should give preclusive effect to the fact that her careless
driving case had been dismissed, thus entitling her to judgment as
a matter of law. The district court disagreed, concluding that there
were material facts in dispute as to the events surrounding the
collision, including whether Wolf had acted negligently and whether
Davis had suffered damage, and if so, as to the amount of damages.
1 Davis then sought the judge’s recusal, claiming that the judge was
biased against her. The court denied the request, and Davis
appealed that order (the recusal order) to this court.
¶4 Meanwhile, Davis and Wolf were unable to select a mediator.
Wolf filed a motion to compel mediation, and the court gave Davis
time to respond, but she did not. The court then set a hearing date,
but Davis did not appear, so the court ordered mediation. Davis
then filed her third motion objecting to the court’s authority.
¶5 This court dismissed Davis’ appeal on grounds the recusal
order was not a final appealable order. Davis then filed her fourth
through sixth objections to the district court’s authority to act in
the case. The district court ordered Davis to show cause why the
case should not be dismissed for failure to prosecute. In response,
Davis filed her seventh objection. The district court dismissed the
case, and Davis appeals.
II. Standard of Review
¶6 We review for an abuse of discretion whether the district court
properly dismissed a plaintiff’s case for failure to prosecute. See
Streu v. City of Colorado Springs ex rel. Colo. Springs Utils., 239 P.3d
1264, 1268 (Colo. 2010). A court abuses its discretion when its
2 ruling is “manifestly arbitrary, unreasonable, or unfair” or when it
misapplies the law. Freedom Colo. Info., Inc. v. El Paso Cnty.
Sheriff’s Dep’t, 196 P.3d 892, 899 (Colo. 2008).
¶7 We review de novo a challenge to a court’s subject matter
jurisdiction as well as assertions that a party’s due process and
equal protection rights were violated. Jim Hutton Educ. Found. v.
Rein, 2018 CO 38M, ¶ 17 (subject matter jurisdiction); People v.
Burlingame, 2019 COA 17, ¶ 11 (due process); Howard v. People,
2020 CO 15, ¶ 11 (equal protection).
III. Pro Se Pleadings
¶8 We acknowledge that Davis filed the underlying lawsuit and
this appeal pro se. Although we broadly construe pro se pleadings,
unrepresented parties must nevertheless comply with the same
procedural rules required of attorneys. Adams v. Sagee, 2017 COA
133, ¶ 10. We address Davis’ arguments to the extent we have been
able to understand them.
IV. Subject Matter Jurisdiction
¶9 Davis contends that the court lacked subject matter
jurisdiction to continue presiding over her case because (1) she filed
a motion to quash Wolf’s answer and jury demand as well as his
3 motion to dismiss one of her claims; (2) she filed seven objections to
the court’s denial of her motion to recuse; and (3) Wolf could not
assert the affirmative defense of comparative negligence. We
disagree.
¶ 10 A court’s subject matter jurisdiction concerns its authority to
deal with the class of cases in which it renders judgment, not its
authority to enter a particular judgment within that class. Meggitt
v. Stross, 2021 COA 50, ¶ 39. The Colorado Constitution vests
district courts with general subject matter jurisdiction in civil cases.
Colo. Const., art. VI, § 9(1); Levine v. Katz, 167 P.3d 141, 144 (Colo.
App. 2006).
A. Motion To Quash
¶ 11 Davis filed her motion to quash pursuant to C.R.C.P. 12(b)(1)
and (2), alleging that the court lacked subject matter jurisdiction
over Wolf’s answer, request for a jury trial, and his motion to
dismiss her intentional infliction of emotional distress claim. The
court denied Wolf’s motion to dismiss, reasoning that, although
Davis’ allegations were thin, she had “alleged sufficient facts
regarding [Wolf’s] conduct, including false statements, acts, and
omissions in the course of the car crash and subsequent
4 investigation, that [we]re sufficient to establish a cause of action for
extreme and outrageous conduct.”
¶ 12 But in that same order, the court construed Davis’
jurisdictional arguments as Davis actually objecting to Wolf’s
counsel because Davis alleged that Wolf had “not been honest with
his insurance carrier about the nature of the accident”;
consequently, Davis was “seeking to have counsel disqualified
based on th[ose] allegations.”
¶ 13 Our supreme court has determined that because
disqualification of a party’s chosen attorney is an “extreme remedy,”
it would be “appropriate only where required to preserve the
integrity and fairness of judicial proceedings,” and “it must be
supported by a showing not only that the proceedings appear to be
seriously threatened, but also by a showing that any remedy short
of disqualification would be ineffective.” In re Estate of Myers, 130
P.3d 1023, 1027 (Colo. 2006). Based on this standard, the district
court concluded that Davis had failed to make the requisite showing
to disqualify Wolf’s counsel.
¶ 14 We discern no error. Although Davis alleged that Wolf had
committed insurance fraud, she did so based on her view of the
5 events surrounding the collision. She provided nothing but the
dismissal of her careless driving citation as evidence that Wolf was
lying to his insurance company about the accident, and it is not at
all clear why, even if her allegations were accurate, Wolf’s counsel
would be unable to continue the representation. And given how
extreme the remedy is to disqualify another party’s chosen attorney,
we conclude that the district court did not err when it denied Davis’
motion to quash.
B. Motion to Recuse
¶ 15 Davis filed a motion under C.R.C.P. 97 with an affidavit,
alleging that the judge was biased against her. In the recusal order,
the court noted that Davis’ motion did not allege that the judge
assigned to the case is or “has been counsel for any party, is a
material witness, or is related to, or connected with, any party or
his attorney.” The court further noted it “does not know either
party, attorney, or anything of the facts of this case. Nor does the
Court have any interest in the outcome of this case.” Instead, the
district court reasoned that the sole basis for the motion was Davis’
disagreement with the court’s denial of her motion for summary
judgment. But the district court found that disagreement with
6 adverse court rulings did not establish bias and, therefore, denied
the motion.
¶ 16 A judge’s denial to recuse herself from a matter will not be
overturned on appeal unless the court abused its discretion. Zoline
v. Telluride Lodge Ass’n, 732 P.2d 635, 639 (Colo. 1987). But a
judge has a duty to preside over a case unless the motion and
affidavit “‘state facts from which it may reasonably be inferred that
the judge has bias or prejudice that will prevent him from dealing
fairly’ with the party seeking recusal.” Moody v. Corsentino, 843
P.2d 1355, 1374 (Colo. 1993) (quoting Wright v. Dist. Ct., 731 P.2d
661, 665 (Colo. 1987)); see also People in Interest of C.Y., 2018 COA
50, ¶ 15; C.R.C.P. 97.
¶ 17 The judge must accept the factual statements in the motion
and the affidavits as true, even if he or she believes them to be false
or erroneous. Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 15. A
recusal motion must assert more than a subjective belief that a
judge is not impartial. Edmond v. City of Colorado Springs, 226
P.3d 1248, 1252 (Colo. App. 2010). If the movant merely alleges
opinions, conclusory statements, conjecture, or innuendo, recusal
is unnecessary. Comiskey v. Dist. Ct., 926 P.2d 539, 544 (Colo.
7 1996); see also Holland v. Bd. of Cnty. Comm’rs, 883 P.2d 500, 510
(Colo. App. 1994).
¶ 18 We discern no abuse of discretion with the district court
denying the motion. Davis was unhappy with the district court’s
adverse rulings, which, without more, does not support a finding
that the court was biased against her. See Bocian, ¶ 57 (“Unless
accompanied by an attitude of hostility or ill will toward a party, a
ruling by a judge on a legal issue is insufficient to show bias that
requires disqualification.”); see also Saucerman v. Saucerman, 461
P.2d 18, 22 (Colo. 1969) (holding that the “rulings of a judge,” even
if “erroneous, numerous and continuous, are not sufficient in
themselves to show bias or prejudice”). Indeed, the court’s orders
reveal no hostility toward Davis; the court went out of its way to
fully explain its rulings and provided Davis with numerous
opportunities to be heard.
C. Affirmative Defense
¶ 19 Within Davis’ affidavit alleging the judge was biased against
her, she claimed Wolf could not assert contributory negligence as
an affirmative defense. In the recusal order, the court stated that it
took no position on the merits of Davis’ claims or Wolf’s defenses,
8 noting the general principle that negligence is ordinarily a question
of fact for the jury.
¶ 20 An affirmative defense is “[a] defendant’s assertion of facts and
arguments that, if true, will defeat the plaintiff’s . . . claim, even if
all the allegations in the [plaintiff’s] complaint are true.” Soicher v.
State Farm Mut. Auto. Ins. Co., 2015 COA 46, ¶ 18 (quoting Black’s
Law Dictionary 509 (10th ed. 2014)). C.R.C.P. 8(c) permits
defendants to assert affirmative defenses and requires contributory
negligence to be pleaded as such. Bailey v. State Farm Mut. Auto.
Ins. Co., 2018 COA 133, ¶ 25 (noting that C.R.C.P. 8(c) lists a
nonexclusive list of affirmative defenses of which contributory
negligence is one). An affirmative defense must be specifically
asserted in the party’s responsive pleading, otherwise it is waived.
Soicher, ¶ 21.
¶ 21 The district court had subject matter jurisdiction to determine
whether Wolf had properly asserted the affirmative defense and
whether sufficient evidence was presented at trial to submit an
instruction for the jury’s consideration. See Gordon v. Benson, 925
P.2d 775, 777-78 (Colo. 1996) (noting that a court must properly
instruct the jury on the governing law and that a jury instruction
9 on comparative negligence must be based on “competent evidence
appearing in the record”).1 Because Davis’ case never went to trial,
though, and because Wolf had the right to plead the affirmative
defense in his answer, there is no contention of error committed by
the court for us to review.
V. Due Process and Equal Protection
¶ 22 Davis contends that the district court violated her due process
and equal protection rights by dismissing her case. We disagree.
A. Due Process
¶ 23 Davis contends that the district court violated her right to due
process because (1) Wolf’s affirmative defense of contributory
negligence was precluded; (2) she was deprived of an evidentiary
hearing regarding her motion to quash; and (3) the district court
was biased against her, as evidenced by the judge’s recusal order
and the court’s order compelling mediation.
1 To the extent that Davis argues Wolf failed to sufficiently plead
contributory negligence in his answer, she raised this issue for the first time in her reply brief; thus, we decline to address it. See Colo. Korean Ass’n v. Korean Senior Ass’n of Colo., 151 P.3d 626, 629 (Colo. App. 2006) (appellate courts do not address arguments first raised in a reply brief).
10 ¶ 24 “The fundamental requisites of due process are notice and the
opportunity to be heard.” Franz v. Indus. Claim Appeals Off., 250
P.3d 755, 758 (Colo. App. 2010) (quoting Hendricks v. Indus. Claim
Appeals Off., 809 P.2d 1076, 1077 (Colo. App. 1990)). “Due process
requires ‘that the parties be apprised of all the evidence to be
submitted and considered, and that they be afforded a reasonable
opportunity in which to confront adverse witnesses and to present
evidence and argument in support of their position.’” Delta Cnty.
Mem’l Hosp. v. Indus. Claim Appeals Off., 2021 COA 84, ¶ 28
(quoting Hendricks, 809 P.2d at 1077). What constitutes sufficient
due process is flexible; no specific procedure is mandated “as long
as the basic opportunity for a hearing and judicial review is
present.” Id. (quoting Ortega v. Indus. Claim Appeals Off., 207 P.3d
895, 899 (Colo. App. 2009)). A party must be given the opportunity
to be heard at a meaningful time and in a meaningful manner.
Whiteside v. Smith, 67 P.3d 1240, 1248 (Colo. 2003).
1. Preclusion
¶ 25 Davis argues that Wolf’s affirmative defense of comparative
negligence was precluded based on the doctrines of issue and claim
preclusion as a result of the dismissal of her careless driving
11 citation. The district court did not address Davis’ preclusion
arguments directly, but, in denying summary judgment, it reasoned
that genuine issues of material fact surrounding the collision
existed.
¶ 26 We conclude that the court provided Davis an opportunity to
be heard through the summary judgment briefing and that it did
not violate her due process rights by not granting that motion. And
“the denial of a motion for summary judgment is not appealable.”
Bengtson v. USAA Prop. & Cas. Ins., 3 P.3d 1233, 1238 (Colo. App.
2000) (citing Feiger, Collison & Killmer v. Jones, 926 P.2d 1244,
1247 (Colo. 1996)).
¶ 27 Assuming Davis contends that the court violated her due
process rights by not addressing her issue and claim preclusion
arguments, any such error is harmless because Davis’ claims would
not have prevailed.
¶ 28 Whether issue preclusion bars subsequent review of a claim or
issue in a different proceeding is a question of law that we review de
novo. Vanderpool v. Loftness, 2012 COA 115, ¶ 17.
¶ 29 “In the broadest sense, [issue and] claim preclusion prevent[]
the perpetual re-litigation of the same [issue,] claim[,] or cause of
12 action.” Foster v. Plock, 2017 CO 39, ¶ 12; see also Brown v.
Felsen, 442 U.S. 127, 131 (1979) (Claim preclusion “prevents
litigation of all grounds for, or defenses to, recovery that were
previously available to the parties, regardless of whether they were
asserted or determined in the prior proceeding.”); Vanderpool, ¶ 11
(Issue preclusion “is designed to ‘relieve parties of multiple lawsuits,
conserve judicial resources, and promote reliance on the judicial
system by preventing inconsistent decisions.’” (quoting Reynolds v.
Cotten, 2012 CO 27, ¶ 9))). “The goal of the doctrine is to promote
judicial economy by barring a claim litigated in a prior proceeding
from being litigated again in a second proceeding.” Foster, ¶ 12.
¶ 30 Both issue and claim preclusion require the parties to be
identical or in privity with one another. Sunny Acres Villa, Inc. v.
Cooper, 25 P.3d 44, 47 (Colo. 2001) (issue preclusion); Meridian
Serv. Metro. Dist. v. Ground Water Comm’n, 2015 CO 64, ¶36 (claim
preclusion). It is undisputed that Wolf was not a party to Davis’
careless driving citation case. Instead, Davis contends that she and
Wolf were in privity.
¶ 31 Privity exists when “there is a substantial identity of interests”
between the party and the non-party “such that the non-party is
13 virtually represented” by the party. Goldsworthy v. Am. Fam. Mut.
Ins. Co., 209 P.3d 1108, 1115 (Colo. App. 2008) (quoting Nat.
Energy Res. Co. v. Upper Gunnison River Water Conservancy Dist.,
142 P.3d 1265, 1281 (Colo. 2006)). Privity “requires both a
substantial identity of interests and a working or functional
relationship in which the interests of the non-party are presented
and protected by the party in the litigation.” Id.
¶ 32 Davis argues that she and Wolf had a substantive legal
relationship because they were both involved in the collision. She
contends that, without the collision, she would not have been cited
for careless driving, and this event thus established a substantive
legal relationship between the two. Davis, however,
misunderstands the concept of privity. Privity means that the
parties’ interests are aligned so that Wolf’s interests as “the non-
party [are] virtually represented” by Davis. In this case, Wolf and
Davis do not share the same interests because Davis alleges Wolf is
at fault in the collision and caused her damage. Therefore, to the
extent Davis could properly assert the doctrine of issue or claim
preclusion, it would have failed and could not have been the basis
14 for the grant of summary judgment in her favor. Thus, we discern
no due process violation.
2. Evidentiary Hearing
¶ 33 Davis contends that she was deprived of an evidentiary
hearing on her motion to quash. Specifically, she relies on
Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1191 (Colo.
2005), for the legal proposition that a court must hold an
evidentiary hearing before resolving disputed facts to determine
subject matter jurisdiction. As we have discussed above, Davis’
motion alleging a lack of subject matter jurisdiction was in
substance a request to disqualify Wolf’s counsel. Thus, because the
court was not required to hold an evidentiary hearing about its
jurisdiction, there can be no due process violation on this basis.
3. Recusal and Mediation
¶ 34 Davis argues she was deprived of the right to an impartial
judge because the judge refused to recuse despite her many
objections. As we noted above, Davis’ objections to the judge were
based on adverse rulings, and nothing in the record even suggests
the judge was biased against her. Therefore, we discern no due
process violation.
15 ¶ 35 As to Davis’ complaint that the district court ordered her and
Wolf to participate in mediation, we perceive no error. The court
has the authority to order parties to participate in mediation. § 13-
22-311, C.R.S. 2024. But Davis contends she did not file a
response to Wolf’s motion to compel because her motion for recusal
had not yet been ruled on by the court. This argument, however, is
inaccurate. The district court issued the recusal order on April 22,
and the hearing on the motion to compel mediation was scheduled
for May 3.
¶ 36 To the extent Davis means that this court had not resolved her
appeal on the recusal order when the district court ordered
mediation, this is true as this court did not dismiss her appeal until
May 31. Even so, Davis did not seek a stay of the district court
proceedings in this court. And when Davis filed her second
objection to the district court’s jurisdiction, it stated she objected to
all orders throughout the case “and beyond until the question of
Judges’ authority to act in this case is resolved by the Colorado
Court of Appeals.” The district court construed Davis’ filing as a
request to stay the proceedings until resolution of her appeal. But
in Davis’ third objection, she specifically stated that she “did not
16 ask for a stay of proceedings in this case.” Based on this record,
the court did not err by proceeding with the case and ordering
mediation when the court would have stayed the proceedings, Davis
rejected the request and Davis was given an opportunity to respond
and attend a hearing on the matter of mediation and failed to do
both.
¶ 37 Finally, even assuming the district court was incorrect in its
orders, Davis was still required to comply. See Maness v. Meyers,
419 U.S. 449, 458-59 (1975) (“[O]nce the court has ruled, counsel
and others involved in the action must abide by the ruling and
comply with the court’s orders.”). “Persons who make private
determinations of the law and refuse to obey an order generally risk
criminal contempt even if the order is ultimately ruled incorrect.”
Id. at 458. Even though Davis disagreed with the court’s decision to
not recuse from the case, she was required to continue to prosecute
her case to finality and then bring any contentions of error to this
court for review. Her failure to follow the proper procedure by
simply refusing to participate in the case does not give rise to a due
process violation under these circumstances.
17 B. Equal Protection
¶ 38 Davis contends that her equal protection rights were violated
because the court treated her unequally in relation to Wolf. We
¶ 39 Equal protection of the laws guarantees that people who are
similarly situated will receive like treatment in the law. Salazar v.
Indus. Claim Appeals Off., 2022 COA 13, ¶ 34; see also Harris v.
Ark, 810 P.2d 226, 229 (Colo. 1991). When a challenged state
action does not involve a person’s fundamental rights or a
traditionally suspect class, we apply rational basis review. People v.
Reyes, 2016 COA 98, ¶ 32. Under this standard, “the challenging
party bears the burden of proving that the action ‘bears no rational
relationship to a legitimate legislative purpose or government
objective, or that the classification was otherwise unreasonable,
arbitrary, or capricious.’” Id. (quoting Dean v. People, 2016 CO 14,
¶ 12).
¶ 40 In Davis’ seven challenges she filed objecting to the district
court’s authority, we see nothing in the record in which she alleged
that the court was treating her unequally because she belonged to a
suspect class. And, to the extent her equal protection claim is
18 based on the court’s dismissal of her case, we perceive no
cognizable equal protection claim, as a court has discretion to enter
such ruling if, as we discuss below, the record supports it.
VI. Failure to Diligently Prosecute
¶ 41 In its order to show cause, the court noted that Davis had filed
a motion to recuse and six objections to the court’s authority and
that Davis had failed to attend the pretrial conference or the jury
trial. Because of this background, the court said, “It appears that
this case is at an impasse,” and concluded it was for the jury to
decide whether Davis “[wa]s entitled to recover on her claims.” The
court ordered Davis to show cause within thirty-five days as to why
the case should not be dismissed for failure to prosecute.
¶ 42 On that same day, Davis filed a response to the show cause
order indicating that she “continue[d] to question and object to
what appears to be the Judges’ [sic] presumption of having
authority to act in this case.” Davis indicated she did not “consent”
to the judge presiding over the case. Based on C.R.C.P. 41(b)(2) and
C.R.C.P. 121, section 1-10, the court found that Davis had “failed to
diligently prosecute or bring th[e] case to trial with diligence.” It
reasoned that Davis had not participated in mediation or attended
19 hearings and that objecting to the court’s authority did not
“constitute[] ‘diligent prosecution.’”
¶ 43 We perceive no abuse of discretion, as the record supports the
district court’s dismissal for four reasons. First, Davis failed to
participate in the case following the court’s denial of her summary
judgment motion. She failed to appear at court hearings on May 3,
June 14, and July 12 and for trial on August 3, 2024. Davis claims
that she did not attend these proceedings because of the unresolved
question of the judge’s authority to act in the case. But this court
dismissed Davis’ appeal of the recusal order on May 31, 2024, so
even if Davis did not agree with the recusal order, the court had the
authority to preside over the case.
¶ 44 Second, Davis did not participate in mediation as ordered by
the court. Again, she claims she did not attend mediation because
the judge had no authority to order it and that its ruling “limited”
her to Wolf’s choice of a mediator. But the court gave Davis two
opportunities — one to file a response to the motion to compel
mediation and another to attend the hearing — to raise any
objections and, ostensibly, to present her choice of mediator. Davis
20 cannot now complain that Wolf’s choice of mediator was forced on
her.
¶ 45 Third, the court reasoned, and we agree, that continued
objections to the court’s authority and its ruling in this case
supports a finding that a plaintiff has failed to prosecute her case.
¶ 46 And finally, the court specifically told Davis in its show cause
order that objecting to the court’s authority would likely result in
her case being dismissed, yet Davis responded with the same
objection.
¶ 47 In such cases where the court is presented with the real
likelihood the case will not move forward — which we have here —
we will affirm the court’s dismissal for failure to prosecute. See,
e.g., Kallas v. Spinozzi, 2014 COA 164, ¶¶ 6, 13-14, 53 (affirming
dismissal when counsel, who suffered from medical conditions and
refused to bring in co-counsel to assist, failed to schedule a
deposition, failed to appear at a hearing for continuance of trial,
and failed to appear at trial); Rossi v. Mathers, 749 P.2d 964, 965
(Colo. App. 1987) (affirming dismissal when plaintiff failed to secure
a medical witness after three years and failed to fully respond to
defendant’s discovery preventing the case being set for trial).
21 VII. Conclusion
¶ 48 The district court’s order is affirmed.
JUDGE WELLING and JUDGE GROVE concur.