25CA0992 Frydendall v Colorado Springs 05-28-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0992 El Paso County District Court No. 24CV32207 Honorable William Bain, Judge
Patrick Frydendall and Laurie Frydendall,
Plaintiffs-Appellants and Cross-Appellees,
v.
City of Colorado Springs, a Home Rule City and Colorado Springs Utilities, a wholly owned enterprise of the City of Colorado Springs,
Defendants-Appellees and Cross-Appellants.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE BROWN Freyre and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026
J. Gregory Walta, Colorado Springs, Colorado, for Plaintiffs-Appellants and Cross-Appellees
Marc Smith, Acting City Attorney, Brian Stewart, Senior City Attorney, Colorado Springs, Colorado, for Defendants-Appellees and Cross-Appellants ¶1 Plaintiffs, Laurie and Patrick Frydendall, appeal the district
court’s judgment dismissing their amended complaint against
defendants, the City of Colorado Springs and Colorado Springs
Utilities (collectively, the City). In response, the City cross-appeals
that portion of the court’s judgment denying its motion to dismiss
for lack of subject matter jurisdiction. We affirm.
I. Background
¶2 The Frydendalls have lived in Colorado Springs at the same
address for twenty-five years. Historically, the Frydendalls’ home
was serviced by the City’s water main located in the alley behind
their home. The water main was connected to the Frydendalls’
water meter using a fifteen-foot, 0.75-inch service line (the old
system). In 2024, the City announced plans to upgrade the old
system by replacing the old water main with a new water main that
would run under the street in front of the Frydendalls’ home. The
new water main would connect to the Frydendalls’ home via a new,
180-foot service line (the new system).
¶3 Beginning in May 2024, the Frydendalls had several meetings
with officials from the City to share their objections to the new
system. Primarily, the Frydendalls argued that the volume of water
1 delivered to their home would be substantially reduced under the
new system due to the much longer service line that had to make a
sharp turn to reach the Frydendalls’ home. The City stated that the
volume of water delivered to the Frydendalls’ home would not
decrease under the new system, but the Frydendalls maintained
their objection. The Frydendalls alleged that the City informed
them that if they refused to withdraw their objection to the new
system, the City would not connect their home to the new main,
leaving them with no water service when the old water main was
taken out of service.
¶4 The Frydendalls later learned that the City was planning to
use a one-and-a-half-inch service line to connect their home to the
new system. In August, the Frydendalls expressed their concerns
about the size of the new line to the City. The Frydendalls alleged
that, in response to these concerns, the City’s project manager
agreed to use a two-inch service line instead of the
one-and-a-half-inch line originally planned. The Frydendalls
alleged that, in exchange for the City’s promise to use a two-inch
line and to deliver equal water volume to their home, the
2 Frydendalls withdrew their objection and agreed to the City’s
alteration of the water delivery system.
¶5 After the City completed its work, the Frydendalls alleged that
they “immediately” noticed “a drastic drop in the water volume” at
their home. They also discovered that, counter to its promise, the
City had installed a one-and-a-half-inch service line connecting
their home to the water main. In response to the Frydendalls’
concerns, employees from the City conducted several tests to assess
the volume of water delivered to the Frydendalls’ home under both
the old and new systems.
¶6 Because the old system remained charged and connected to
the Frydendalls’ home, the City had to manipulate conditions
within the old water main to conduct a test of the water volume
produced by the old system. The Frydendalls alleged that during
the test of the new system, a City engineer “took a video of the
water volume inside [the Frydendalls’] shower while flushing the
toilet” and recorded a drop in water pressure. According to the
Frydendalls, the City engineer “verbally confirmed the video showed
that the water volume in the house under the new system was
‘insufficient.’” Mr. Frydendall took a photo of the engineer’s
3 handwritten report, which indicated that a video had been taken of
the engineer’s test at their home. The Frydendalls alleged that the
City engineer confirmed that the City would “take steps to correct
the problem,” but the City took no further action to address the
Frydendalls’ concerns.
¶7 In November, the Frydendalls filed a complaint against the
City, asserting a claim for breach of contract and a claim for “bad
faith breach of contract and claim handling.” The City moved to
dismiss, arguing primarily that it was immune from liability under
the Colorado Governmental Immunity Act (CGIA) and, alternatively,
that the Frydendalls failed to state a claim upon which relief could
be granted. The district court determined that the CGIA did not
preclude the Frydendalls’ claims because they alleged injuries
arising from the City’s maintenance and operation of a public water
facility and the CGIA excludes that class of claims from its scope.
But it found that the allegations in the Frydendalls’ complaint were
conclusory and ordered them to file an amended complaint.
¶8 The Frydendalls filed an amended complaint, asserting a claim
for “intentional breach of contract” and a claim for “bad faith breach
of contract and bad faith claim handling,” which included more
4 specific allegations. Specifically, the Frydendalls alleged that the
City entered into a contract with the Frydendalls to (1) “maintain
the same level of water volume and pressure in the [Frydendalls’]
home”; (2) “cause no negative impact on the level of water volume
and pressure in the [Frydendalls’] home”; and (3) “use [two]-inch
piping for the new [service] line.” The Frydendalls alleged that, in
exchange for the City’s promise, they “agreed to [the City’s] plan to
deliver water to their home through” the new system. Finally, they
alleged that the City “intentionally and surreptitiously breached [its]
contract and [its] duty of good faith and fair dealing by using
[one-and-a-half-inch] piping instead of the agreed upon [two]-inch
piping which, combined with the 180-foot water line, resulted in a
drastic reduction of water volume in [the Frydendalls’] home.”
¶9 The City again moved to dismiss the Frydendalls’ complaint,
reasserting its arguments that it was immune from liability under
the CGIA and that the Frydendalls’ complaint failed to state a claim
upon which relief could be granted. Concerning the breach of
contract claim specifically, the City argued that the Frydendalls’
amended complaint failed to “describe the terms of any agreement
with enough specificity to plausibly show that a contract existed”;
5 “allege facts that show the parties agreed to, or even discussed, a
specific volume of water or other terms necessary to create a
binding contract”; or “allege that either party made a specific offer
to the other that was supported by consideration and accepted prior
to the new water system’s installation.” The City acknowledged that
the Frydendalls had alleged “that [the City] agreed to install a larger
service line, presumably to address their concerns,” but it argued
that they failed to “allege that there was any discussion of or
bargaining for consideration to support the alleged agreement.”
¶ 10 First, addressing the City’s CGIA arguments, the court
adopted its prior ruling and again determined that the City was not
immune. Turning to the merits of the claims, the court explained
that proof of a binding contract requires the pleading party to show
that the agreement was supported by some kind of consideration.
The court acknowledged the Frydendalls’ argument that the
withdrawal of their objection to the City’s installation of the new
system amounted to adequate consideration but nevertheless
concluded that, “whatever the alleged promises the City made to the
[Frydendalls] were, those promises were not exchanged for any
valuable consideration from [the Frydendalls].” The court explained
6 that the City was “going to replace the old main in the alley with the
new one in the street, regardless of whether [the Frydendalls]
agreed with the plan or not,” and that “[i]t cannot plausibly be
alleged that had the [Frydendalls] maintained their objection to the
City’s proposal, the project would have stopped.” Accordingly, the
court dismissed the amended complaint.
¶ 11 The Frydendalls filed a “Motion to Reverse,” arguing that the
court had overlooked established law that the consideration for an
enforceable contract can be as little as a “peppercorn.” The district
court denied the motion, concluding that the Frydendalls did not
cite “any legal authority to support their argument that the
withdrawal of their objection to the proposed plan can be
consideration for a contract.” This appeal followed.
II. The City’s Cross-Appeal
¶ 12 Because the City’s cross-appeal presents an issue of subject
matter jurisdiction, we address it first. See In re Estate of Gonzalez,
2024 COA 63, ¶ 10. The City contends that the district court erred
by denying its C.R.C.P. 12(b)(1) motion to dismiss on the basis that
the CGIA deprived the court of subject matter jurisdiction over the
Frydendalls’ claims. We disagree.
7 A. Applicable Law and Standard of Review
¶ 13 Under the CGIA, “[a] public entity is immune from liability in
all claims for injury that lie in tort or could lie in tort.”
§ 24-10-106(1), C.R.S. 2025. The immunity provided by the CGIA
does not extend to “actions grounded in contract.” City of Aspen v.
Burlingame Ranch II Condo. Owners Ass’n, 2024 CO 46, ¶ 30.
¶ 14 When a plaintiff frames their claims as contractual or
quasi-contractual rather than as tort claims, the trial court must
determine whether the “claims ‘lie in tort or could lie in tort’ and are
thus barred by the CGIA.” Robinson v. Colo. State Lottery Div., 179
P.3d 998, 1003-04 (Colo. 2008) (“[C]laims that could arise in both
tort and contract are barred by the CGIA, while claims arising solely
in contract are not subject to the CGIA.”). “[T]he form of the
complaint is not determinative of the claim’s basis in tort or
contract”; rather, a trial court “must consider the nature of the
injury and the relief sought.” Id. at 1003; see Burlingame Ranch,
¶ 31 (“Although the relief requested [is not] dispositive, it informs
our understanding of the nature of the injury and the duty allegedly
breached.”).
8 ¶ 15 “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
P.3d 1162, 1164 (Colo. App. 2008). The plaintiff bears the burden
of establishing that the public entity is not immune under the CGIA
and that the trial court has jurisdiction over the claim. Henderson
v. City & County of Denver, 2012 COA 152, ¶ 21.
B. The District Court Did Not Err by Denying the City’s Motion to Dismiss Under the CGIA
¶ 16 Shortly after the Frydendalls filed their original complaint, the
City moved to dismiss their claims under C.R.C.P. 12(b)(1) on the
basis that the claims, although framed as contract claims, could lie
in tort and therefore fell within the scope of the CGIA’s immunity
provisions. The district court first concluded that the Frydendalls’
claims “lie in tort or could lie in tort, specifically the torts of
negligence and civil conspiracy.” The court noted that the
Frydendalls did not “identify[] any kind of contract” but “repeatedly
emphasized the ‘duties’ that [the City] owes all of its customers.”
Although the court acknowledged that the referenced “duties”
“could conceivably relate to contractual claims,” it reasoned that
9 they “could have been styled by plaintiffs as tort claims.” The court
also noted that the Frydendalls did not seek specific performance
but instead sought money damages, including punitive damages,
which the court determined to be more consistent with tort claims
than contract claims. See Watson v. Cal-Three, LLC, 254 P.3d
1189, 1197 (Colo. App. 2011) (Colorado law “does not recognize a
claim for punitive damages predicated upon breach of contract.”).
¶ 17 Nonetheless, the court determined that the CGIA waives
immunity for public entities when the claims allege injuries arising
out of the entity’s “operation and maintenance of any public water
facility.” § 24-10-106(1)(f). And because the Frydendalls’ claims
alleged injuries arising out of the City’s construction and
installation of a new water conveyance system, the court concluded
that the public water facility exception applied and that the City
was not immune under the statute.
¶ 18 As directed by the court, the Frydendalls filed an amended
complaint, revising their allegations to more specifically allege the
creation of a contractual agreement and the City’s subsequent
breach of that agreement. The City again moved to dismiss,
reasserting its arguments that it was immune from liability under
10 the CGIA. In granting the City’s motion, the court merely
incorporated by reference its prior ruling without considering the
more detailed allegations in the amended complaint.
¶ 19 In its cross-appeal, the City contends that the district court
“correctly found that the Frydendalls’ claim did or could lie in tort”
but erred by concluding that the City was not immune under the
public water facility exception. This is so, the City contends,
because the Frydendalls’ alleged injuries arose from the City
choosing to upgrade the water system, not from its operation and
maintenance of that system. The Frydendalls argue that the court
correctly determined that the City was not immune from their
claims under the CGIA but erred by determining that their
contract-based claims lie in tort or could lie in tort for the purposes
of the statute. We will address the Frydendalls’ claims separately.
¶ 20 First, after reviewing the Frydendalls’ amended complaint —
the operative complaint — we conclude that their breach of contract
claim is grounded in contract and is thus outside the scope of the
CGIA. See Burlingame Ranch, ¶ 30. In concluding otherwise, the
district court appears to have considered only the allegations in the
original complaint. But the Frydendalls filed an amended
11 complaint that included more specific allegations related to the
City’s alleged breach of contract.
¶ 21 For example, in the original complaint, the Frydendalls did not
assert the breach of any specific agreement but instead listed a
number of “duties” that the City owed to its “captive [water]
customers.” See Bd. of Cnty. Comm’rs v. Colo. Dep’t of Pub. Health
& Env’t, 2021 CO 43, ¶ 42 (claims lie in tort or could lie in tort
when the alleged injury arose out of the breach of a duty recognized
in tort law). However, in the amended complaint, the Frydendalls
alleged that (1) the City entered into a contractual agreement to
install a two-inch service line and maintain the same water volume
to the Frydendalls’ home in exchange for the Frydendalls’
withdrawal of their objection to the project; (2) the City breached
that agreement by installing a one-and-a-half-inch service line,
which negatively impacted the water volume delivered to their
home; and (3) as a result, the Frydendalls suffered foreseeable
damages, including a loss of water volume, a loss in home value, a
loss of “time and income” required to enforce the parties’ agreement,
and the cost of replacing the pipe. While some of these categories of
damages may be difficult to quantify monetarily — specifically, the
12 alleged loss of water volume — the amended complaint nevertheless
requested compensation for injuries that flowed directly from the
City’s breach of the alleged contract. See Giampapa v. Am. Fam.
Mut. Ins. Co., 64 P.3d 230, 249 (Colo. 2003) (Bender, J., specially
concurring) (damages for losses resulting from a promisor’s breach
are an appropriate remedy in contract law).
¶ 22 We acknowledge that the form of the complaint is not
dispositive, Robinson, 179 P.3d at 1003, and that “the CGIA is less
concerned with what the plaintiff is arguing and more concerned
with what the plaintiff could argue,” id. at 1005, but we decline to
speculate as to what tort claims the Frydendalls could have
asserted. Given the nature of the injuries alleged and the relief
sought, the Frydendalls’ “intentional breach of contract” claim is
grounded in contract. See id. at 1003. Thus, we conclude that the
CGIA did not deprive the court of jurisdiction over that claim. See
Burlingame Ranch, ¶ 30. Accordingly, we affirm the court’s order
denying the City’s C.R.C.P. 12(b)(1) motion as to that claim, albeit
on different grounds. See Rush Creek Sols., Inc. v. Ute Mountain Ute
Tribe, 107 P.3d 402, 406 (Colo. App. 2004) (we may affirm a trial
court’s ruling on any grounds supported by the record).
13 ¶ 23 Second, we are unable to determine whether the CGIA applies
to the Frydendalls’ claim for “bad faith breach of contract and bad
faith claim handling” because, as discussed more thoroughly below,
we are unable to discern what claim the Frydendalls attempted to
assert. Even so, because we conclude that the court correctly
dismissed the Frydendalls’ second claim under C.R.C.P. 12(b)(5),
any error in failing to dismiss it under C.R.C.P. 12(b)(1) is
harmless.1 See C.R.C.P. 61 (an error is harmless if it does not affect
the substantial rights of the parties); Laura A. Newman, LLC v.
Roberts, 2016 CO 9, ¶ 24 (an error affects the parties’ substantial
rights if it substantially influences the outcome of the case or
impairs the basic fairness of the case itself).
1 We acknowledge that, had the district court dismissed the
Frydendalls’ tort claims under the CGIA, the City may have been entitled to attorney fees. See § 13-17-201, C.R.S. 2025; Smith v. Town of Snowmass Village, 919 P.2d 868, 873 (Colo. App. 1996). However, the City did not seek attorney fees in its motion to dismiss or any other pleading filed with the district court. Under these circumstances, we perceive no consequences flowing from the court’s resolution of the Frydendalls’ claims under C.R.C.P. 12(b)(5) rather than C.R.C.P. 12(b)(1).
14 III. The Frydendalls’ Appeal
¶ 24 The Frydendalls contend that the district court erred by
dismissing their claims under C.R.C.P. 12(b)(5). We disagree.
A. Applicable Law and Standard of Review
¶ 25 The purpose of a C.R.C.P. 12(b)(5) motion to dismiss for failure
to state a claim upon which relief can be granted is to test the
formal sufficiency of a plaintiff’s complaint. Wagner v. Grange Ins.
Ass’n, 166 P.3d 304, 306 (Colo. App. 2007). To determine whether
a plaintiff stated a claim upon which relief may be granted under
C.R.C.P. 12(b)(5), we employ the “plausibility standard.” Adams
Cnty. Hous. Auth. v. Panzlau, 2022 COA 148, ¶ 49 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 560 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)); Warne v. Hall, 2016 CO 50, ¶ 24.
Under this standard, a complaint must “allege sufficient facts that,
if taken as true, show plausible grounds to support a claim for
relief.” Jagged Peak Energy Inc. v. Okla. Police Pension & Ret. Sys.,
2022 CO 54, ¶ 25. The pleading party must set forth factual
allegations that plausibly support each of the basic elements of the
asserted claim. Panzlau, ¶ 51.
15 ¶ 26 We review de novo a district court’s C.R.C.P. 12(b)(5)
dismissal. Scott v. Scott, 2018 COA 25, ¶ 17. In doing so, we apply
the same standards as the district court, accepting the well-pleaded
factual allegations in the complaint as true and viewing those
allegations in the light most favorable to the plaintiff. Patterson v.
James, 2018 COA 173, ¶ 16. However, we are not bound by
conclusory allegations or bare legal conclusions that are couched as
factual allegations. Norton v. Rocky Mountain Planned Parenthood,
Inc., 2018 CO 3, ¶ 7.
B. Breach of Contract Claim
¶ 27 The Frydendalls contend that the district court erred by
dismissing their breach of contract claim for lack of consideration
because it misunderstood what consideration the Frydendalls
alleged and, consequently, “violated” the “peppercorn rule.” The
City argues that the Frydendalls’ withdrawal of their objection to
the size of the service line did not constitute adequate consideration
for the purported contract but, even if it did, the Frydendalls failed
to allege mutual assent to the terms of the purported contract. We
conclude that the court did not err by dismissing the Frydendalls’
contract claim for failure to state a claim under C.R.C.P. 12(b)(5).
16 1. Preservation
¶ 28 As an initial matter, the City argues that the Frydendalls did
not preserve their consideration-related contentions. Preservation
is a threshold question; in civil cases, we do not address
contentions that have been insufficiently preserved. Rinker v.
Colina-Lee, 2019 COA 45, ¶ 22. An issue is preserved when it is
brought to the court’s attention, and the court has an opportunity
to rule on it. In re Marriage of Turilli, 2021 COA 151, ¶ 12.
Preservation does not require that a party use talismanic language,
In re Estate of Owens, 2017 COA 53, ¶ 21, but it does require that a
party present the “sum and substance of the argument it now
makes on appeal” to the trial court, Berra v. Springer & Steinberg,
P.C., 251 P.3d 567, 570 (Colo. App. 2010) (citation omitted).
¶ 29 In the City’s motion to dismiss the amended complaint, it
argued, among other things, that the Frydendalls did not allege
“there was any discussion of or bargaining for consideration to
support the alleged agreement.” The Frydendalls responded that
the City’s motion ignored their allegation that, in exchange for the
City’s agreement to use a two-inch service line, they withdrew their
objection to the City’s new system.
17 ¶ 30 We acknowledge that the Frydendalls’ response did not
mention the words “consideration” or “peppercorn” or substantively
argue that the alleged consideration — withdrawing an objection to
the new system — was sufficient to create a binding contract. But
the City did not argue that the value of the alleged consideration
was insufficient, it argued that there was no consideration. The
adequacy of the alleged consideration did not clearly arise until the
district court dismissed the breach of contract claim because the
alleged promises “were not exchanged for any valuable
consideration from [the Frydendalls].” (Emphasis added.) Because
the court ruled this way, we conclude that the contention raised on
appeal — the adequacy of the alleged consideration — was
sufficiently preserved for appellate review. See Brown v. Am.
Standard Ins. Co. of Wis., 2019 COA 11, ¶ 23 (because the trial
court ruled on the issue, it was preserved).
2. The District Court Did Not Err by Dismissing the Frydendalls’ Breach of Contract Claim Under C.R.C.P. 12(b)(5)
¶ 31 Consideration is “[s]omething (such as an act, a forbearance,
or a return promise) bargained for and received by a promisor from
a promisee.” Black’s Law Dictionary 384 (12th ed. 2024); Int’l Paper
18 Co. v. Cohen, 126 P.3d 222, 225 (Colo. App. 2005). As relevant
here, “[c]onsideration may take the form of forbearance by one party
to refrain from doing something that it is legally entitled to do.”
Lucht’s Concrete Pumping, Inc. v. Horner, 255 P.3d 1058, 1061
(Colo. 2011). Consideration does not need to be of great value;
rather, “any benefit to a promisor or any detriment to a promisee at
the time of the contract — no matter how slight — constitutes
adequate consideration.” Id. (citing W. Fed. Sav. & Loan Ass’n of
Denv. v. Nat’l Homes Corp., 445 P.2d 892, 897-98 (Colo. 1968), and
2 Joseph M. Perillo & Helen H. Bender, Corbin on Contracts § 5.14,
at 70 (rev. ed. 1995) (a “peppercorn” is sufficient consideration)).
¶ 32 The district court understood the Frydendalls to have alleged
that the consideration they exchanged for the City’s promise to use
a larger service line was the withdrawal of their objection to the new
water system. The court observed that the City was going to install
the new system on the Frydendalls’ street regardless of the
Frydendalls’ objection. That observation was consistent with the
Frydendalls’ allegation that the City informed them that it “would
disconnect the water to their home if they didn’t agree to [the City’s]
plans.” The court essentially concluded that, because the
19 Frydendalls’ objection would not have impacted the City’s
installation of the new system, the withdrawal of that objection was
of no benefit to the City and no detriment to the Frydendalls.
¶ 33 On appeal, the Frydendalls contend that the court
misunderstood the nature of their alleged consideration.
Specifically, they assert that they withdrew their overarching
objection to the new water system before they separately raised
concerns about the smaller service line.2 They argue that their
contract with the City specifically “involved [the] Frydendall[s’]
objection to [the City’s] plan to use inadequate [one-and-a-half-inch]
piping” to connect their home to the new system. They further
contend that the City received value from the withdrawal of their
objection to the City’s planned use of the smaller pipe by avoiding
construction delays.
2 Notably, the Frydendalls argue in their opening brief that they
relinquished their overarching objection to the new water system before they contracted with the City to use a larger service pipe on their home. But the amended complaint alleges that the Frydendalls “withdrew their objections and agreed to [the City’s] alteration of the water delivery system” in exchange for the City’s “agreement to use [two-inch] piping.”
20 ¶ 34 Even accepting the Frydendalls’ characterization of their
complaint as true, they fail to plausibly allege bargained-for
consideration to sustain a breach of contract claim. The
Frydendalls allege that, had they maintained their objection to the
new water system, the City would have disconnected the water to
their home. Based on that allegation, it is clear that the
Frydendalls benefited from withdrawing their objection by
remaining connected to the City’s water infrastructure. But they do
not explain how the City benefited from the withdrawal of the
objection, nor do they explain what detriment — no matter how
slight — they suffered as a result. And although the Frydendalls
argue for the first time on appeal that the City benefited by avoiding
construction delays, they made no such allegation in their amended
complaint and made no such argument in their response to the
City’s motion to dismiss.3 See In re Marriage of Fabos, 2019 COA
80, ¶ 31 n.4 (we do not address arguments raised for the first time
on appeal).
3 During oral argument, counsel for the Frydendalls also argued
that the Frydendalls forfeited an administrative appeal in exchange for the City’s agreement to install a larger service line, but that allegation too is absent from the amended complaint.
21 ¶ 35 But even if the mere withdrawal of an objection amounted to
sufficient forbearance to constitute adequate consideration, see
Lucht’s Concrete Pumping, 255 P.3d at 1061, the Frydendalls also
failed to allege that the parties had a meeting of the minds
regarding the contract terms. See Denv. Pressed Brick Co. v. Le
Fevre, 138 P. 434, 436 (Colo. App. 1913) (“It is true that, however
infinitesimal a thing may be, or may afterwards prove to be, that is
offered and accepted as a consideration for a contract, it may be
sufficient, if it be offered and accepted as a consideration, and not as
a gift, or under a state of facts that discloses a gratuitous
undertaking.” (emphasis added)).
¶ 36 “[T]he formation of a contract requires mutual assent to the
terms of the contract and legal consideration for which the parties
bargained.” Univ. of Denv. v. Doe, 2024 CO 27, ¶ 47. Mutual
assent to the terms of the contract requires “a meeting of the
minds.” Id. (citation omitted). “If the parties fail to agree to
sufficiently definite and certain terms, there is no meeting of the
minds, and hence, no valid contract.” Id. at ¶ 49 (citation omitted).
¶ 37 In their amended complaint, the Frydendalls alleged that the
parties formed a binding contractual agreement when (1) the
22 Frydendalls “expressed concern” regarding the size of the planned
service line; (2) the City “agreed” to use a two-inch service line; and
(3) in response to that “agreement,” the Frydendalls “withdrew their
objections and agreed to [the City’s] alteration of the water delivery
system.” These are conclusory statements that an “agreement”
existed that we need not accept as true. Norton, ¶ 7; Warne, ¶ 9.
The Frydendalls do not allege facts reflecting that the parties had a
meeting of the minds sufficient to form a contract — particularly
regarding the necessary bargained-for consideration. For example,
the Frydendalls did not allege that the parties discussed and
reached a mutual understanding about the value of the
Frydendalls’ objection or the impact that maintaining the objection
might have on the project such that the City would offer something
of value — a larger service line — in exchange for the withdrawal of
the objection. And given the other allegations in the amended
complaint about the City intending to proceed with the project
despite the Frydendalls’ objection, it is not reasonable to infer that
the City understood the Frydendalls’ objection to have any value or
impact on the project. Thus, even accepting that the Frydendalls’
withdrawal of their objection amounted to adequate consideration,
23 they nevertheless fail to plausibly allege the parties’ mutual assent
to the terms of the purported contract. See Univ. of Denv., ¶ 47.
¶ 38 In the absence of any plausible allegation concerning the
parties’ mutual assent or that the City benefited from the
Frydendalls’ withdrawal of an objection, we cannot conclude that
the court erred by dismissing the breach of contract claim. See
Warne, ¶ 9.
C. Bad Faith
¶ 39 The Frydendalls contend that the district court erred by
dismissing their “bad faith” claim because the “[c]ourt did not make
specific findings of fact to support its dismissal.” True, the court
appears to have characterized the Frydendalls’ second claim as a
“request for sanctions” and deemed it “meritless for the reasons set
forth in the [City’s] reply,” without further explanation. But we
review a C.R.C.P. 12(b)(5) dismissal de novo, applying the same
standards as the district court. Patterson, ¶ 16. So, it is not
enough to simply say that the district court got it wrong; the
Frydendalls must affirmatively demonstrate why their claim should
have survived the City’s motion to dismiss. See Barnett v. Elite
Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010) (“We will not
24 consider a bald legal proposition presented without argument or
development. Counsel must inform the court both as to the specific
errors asserted and the grounds, supporting facts, and authorities
to support their contentions.” (citation omitted)); C.A.R. 28(a)(7)(B)
(the appellant bears the burden of providing us with “a clear and
concise discussion of the grounds upon which the party relies in
seeking a reversal or modification of the judgment . . . with citations
to the authorities”).
¶ 40 On appeal, the Frydendalls have not explained what claim
they intended to assert as the second claim in their amended
complaint, what the elements of that claim are, or how the facts
alleged plausibly satisfy each of those elements. See Jagged Peak
Energy, ¶ 25. And we are unable to discern these things from our
own review of the amended complaint.
¶ 41 The second claim has some of the markings of a claim for
breach of the duty of good faith and fair dealing, which — outside
the insurance context — is merely a breach of contract claim that
would fail in the absence of a contract. See Goodson v. Am.
Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004) (“In most
contractual relationships, a breach of this duty will only result in
25 damages for breach of contract and will not give rise to tort
liability.”). By referring to the City’s “bad faith claim handling,” the
second claim could be intended as a tort claim for bad faith breach
of contract. But such a claim is unique to the insurance context.
See id. (“Due to the ‘special nature of the insurance contract and
the relationship which exists between the insurer and the insured,’
an insurer’s breach of the duty of good faith and fair dealing gives
rise to a separate cause of action arising in tort.” (citation omitted)).
The Frydendalls did not allege the existence of any insurance
contract between them and the City.
¶ 42 The second claim also includes passing references to fraud,
which must be pleaded with particularity, see C.R.C.P. 9(b);
perjury, which is a criminal offense, § 18-8-502, C.R.S. 2025;
contempt of court, which is not a standalone claim but a proceeding
to enforce existing court orders subject to the requirements of
C.R.C.P. 107; and abuse of process, which requires proof of “the
use of a legal proceeding primarily to accomplish a purpose that the
proceeding was not designed to achieve,” Walker v. Van Laningham,
26 148 P.3d 391, 394 (Colo. App. 2006).4 The second claim could also
be construed — as the district court did— as a request for
sanctions for the City’s alleged falsification of an exhibit filed with
the motion to dismiss, which would be governed by C.R.C.P. 37.
¶ 43 On appeal, the Frydendalls argue that the district court erred
by dismissing the second claim because (1) the court erroneously
ruled there was no contract; (2) the City falsified an exhibit it
attached to its motion to dismiss; (3) the City engaged in “bad faith
claim handling”; and (4) the City’s conduct in resolving a dispute
over sewage cleanup in another customer’s home demonstrates its
“outrageous . . . bad faith practices.” But these contentions merely
foment our confusion about what claim they intended to assert.
¶ 44 Moreover, the Frydendalls cite no legal authority in this
section of their brief beyond (1) a general reference to a
ninety-year-old case, In re Holmes’ Estate, 56 P.2d 1333 (Colo.
4 Although the Frydendalls point to a discrepancy between two
versions of a testing report to claim that the City “attempted to deceive the [c]ourt and defraud the [Frydendalls],” they allege no facts from which one could reasonably infer that the discrepancy resulted from fraud or deception. Similarly, the Frydendalls allege no facts to support a claim that the City engaged in criminal conduct.
27 1936), that seems to address evidence spoliation; and (2) a citation
to Lucht’s Concrete Pumping, 255 P.3d at 1061, which does not
support their assertion that intent cannot be decided by the court
on a C.R.C.P. 12(b) motion to dismiss. See People in Interest of
G.R.N.M., 228 P.3d 976, 978 (Colo. App. 2010) (legal arguments
require the advocate to connect law to facts).
¶ 45 Absent a clear articulation of what claim the Frydendalls
intended to raise, we cannot determine whether the facts alleged in
the amended complaint “show plausible grounds to support a claim
for relief.” Jagged Peak Energy, ¶ 25. Thus, we conclude that the
district court did not err by dismissing the Frydendalls’ bad faith
claim under C.R.C.P. 12(b)(5) for failure to state a claim upon which
relief may be granted. See id.
IV. Disposition
¶ 46 We affirm the district court’s judgment.
JUDGE FREYRE and JUDGE SCHUTZ concur.