23CA1218 Golec v Boring 12-12-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1218 Eagle County District Court No. 19CV30164 Honorable Paul R. Dunkelman, Judge
Thomas Golec, Mara Lynn Looney, Mark K. Nicholson, Andrew H. Soliday, Laurie A. Soliday, Andrew A. Soliday, and Jeanne M. Wicks,
Plaintiffs-Appellees and Cross-Appellants,
v.
Todd H. Boring and Chrystie Carter,
Defendants-Appellants and Cross-Appellees.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE KUHN Yun and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 12, 2024
Ferguson Schindler Law Firm, P.C., Michelle K. Schindler, Aspen, Colorado, for Plaintiffs-Appellees and Cross-Appellants
Ridley, McGreevy & Winocur, P.C., Robert T. Fishman, Denver, Colorado; Feldman/Wertz, LLP, Alan Feldman, Basalt, Colorado, for Defendants- Appellants and Cross-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendants, Todd H. Boring and Chrystie Carter, appeal the
judgment entered upon jury verdicts finding them liable to
plaintiffs, Thomas Golec, Mara Lynn Looney, Andrew H. Soliday
(Andy), Laurie A. Soliday, and Jeanne M. Wicks, for intentional
infliction of emotional distress, negligent infliction of emotional
distress, and nuisance. Boring and Carter also appeal the
judgment against them in favor of plaintiff, Mark K. Nicholson, for
nuisance. Finally, Boring appeals the judgment in favor of plaintiff,
Andrew A. Soliday (Drew), on his nuisance claim. On cross-appeal,
Wicks, Nicholson, Andy, and Drew1 appeal the jury’s verdict in favor
of Boring and Carter on their counterclaim for intrusion upon
seclusion. We affirm.
I. Background
¶2 At trial, the jury heard testimony that would have allowed it to
find the following facts. This case arose from a neighborhood
dispute in rural Eagle County that started in 2017. At that time,
1 Because three parties involved in this litigation share the last
name Soliday, we refer to them for clarity collectively as the “Solidays” and individually by their first names as used in trial. We intend no disrespect by doing so.
1 Wicks and her partner, Nicholson, were renting out parts of their
property through Airbnb. They alleged that Boring and his partner,
Carter, were dissatisfied with their short-term rental business and
believed that Wicks was running a “porn ring”2 at her property. So,
they claim, Boring, Carter, and their neighbor, Joe Weinant,
engaged in a pattern of behavior that was intended to drive Wicks
and Nicholson out of the neighborhood.
¶3 Thus, one June afternoon, plaintiffs observed Weinant driving
through the neighborhood on his all-terrain vehicle (ATV), shooting
his handgun in the air, and screaming, “[Y]ou need to get the fuck
out of here.” Later that day, Boring and Carter went to Weinant’s
property where the three shot their guns and set off large fireworks
late into the night.
¶4 The disruptive behavior didn’t end there. Over the next five
months, neighbors recorded roughly twenty-five separate incidents
where Boring and Carter engaged in intense shooting at their
property and other behavior that plaintiffs viewed as offensive. That
2 The “porn ring” referred to Wicks’s “orgasmic meditation” practice.
Wicks testified at trial that while she was certified to coach orgasmic meditation, she never did so at the property.
2 included shooting large caliber firearms, at times for hours on end
and well after midnight; playing loud music while constantly riding
ATVs up and down the dirt road that runs through the
neighborhood; playing a recording of a piercing shrieking sound,
often after midnight; using a chain saw late at night; shining lights
from a skid steer toward neighboring properties; and setting off
fireworks during a statewide fire ban.
¶5 While Boring and Carter initially directed their behavior
toward Wicks and Nicholson, other neighbors were impacted and
took issue with it as well. In November 2017, Wicks and the
Solidays obtained a temporary protection order against Boring and
Carter, prohibiting them from possessing firearms and coming
within 100 yards of the protected parties. But despite the
protection order, and even though they moved out of the
neighborhood in the summer of 2018, Boring and Carter continued
to race ATVs and shoot guns at Weinant’s property anytime they
came back to visit. And after the protection order was vacated in
November 2018, plaintiffs reported several additional incidents
where Boring and Carter shot large caliber guns and engaged in
other behavior they found objectionable late into the night.
3 ¶6 Roughly two years after the first incident, plaintiffs filed this
suit against Boring, Carter, and Weinant. As relevant here, Golec,
Looney, Wicks, and the Solidays asserted claims for intentional
infliction of emotional distress (outrageous conduct); negligent
infliction of emotional distress (NIED), which was pleaded in the
alternative to the outrageous conduct claim; and nuisance.
Nicholson only asserted a nuisance claim. In response, Boring and
Carter asserted a counterclaim for intrusion upon seclusion,
alleging that plaintiffs were surveilling them by installing hidden
cameras in the neighborhood.
¶7 The parties’ first trial ended in a mistrial. During the second
trial, both sides moved for a directed verdict on their respective
claims. Boring and Carter contended that they were entitled to a
directed verdict on the outrageous conduct claim because their
conduct wasn’t extreme and outrageous as a matter of law. Boring
and Carter also argued for a directed verdict on the NIED claim
because plaintiffs failed to present any evidence that Boring and
Carter subjected them to an unreasonable risk of physical harm,
that they sustained physical injuries as a result of their emotional
distress, or that those injuries were caused by Boring and Carter.
4 Plaintiffs contended that they were entitled to a directed verdict on
the intrusion upon seclusion counterclaim because Boring and
Carter failed to present evidence supporting the elements of that
tort.
¶8 The trial court denied the motions. At the conclusion of the
eleven-day trial, the jury found that Golec, Looney, Wicks,
Nicholson, Andy, and Laurie had prevailed on their claims against
Boring, Carter, and Weinant. It also found Boring and Weinant
liable to Drew on his nuisance claim. Finally, it found that Boring
and Carter were entitled to judgment on their intrusion upon
seclusion counterclaim against Wicks, Nicholson, Andy, and Drew.
The jury awarded plaintiffs in total $2.52 million in compensatory
and punitive damages, of which roughly $1.06 million was
5 apportioned to Boring and $1.1 million was apportioned to Carter.3
The jury awarded Boring and Carter $30,000 each on their
counterclaim. Boring and Carter then filed a motion for a judgment
notwithstanding the verdict, which the trial court denied.
II. Analysis
¶9 On appeal, Boring and Carter contend that the trial court
erred by entering judgment against them because (1) the conduct
underlying the outrageous conduct claim wasn’t extreme and
outrageous as a matter of law; (2) plaintiffs failed to establish their
alternative NIED claim because Boring’s and Carter’s actions didn’t
subject plaintiffs to an unreasonable risk of physical harm, they
3 The remainder of the award was apportioned to Weinant. After trial, the defendants each filed for bankruptcy relief in federal district court, resulting in an automatic stay of this litigation. Boring and Carter then asked for relief from the automatic stay so that they could pursue their appeal, which the bankruptcy court granted. Accordingly, this court allowed Boring and Carter’s appeal and plaintiffs’ cross-appeal to proceed, stayed Weinant’s appeal, and ordered Weinant to file status reports regarding his bankruptcy every forty-nine days. Golec v. Boring, (Colo. App. No. 23CA1218, Jan. 5, 2024, and Mar. 26, 2024) (unpublished orders). But after Weinant failed to comply with the order requiring him to file periodic status reports, this court dismissed the appeal as to him with prejudice. Golec v. Boring, (Colo. App. No. 23CA1218, Aug. 16, 2024) (unpublished order).
6 didn’t suffer physical injuries, and didn’t prove any injuries were
caused by Boring and Carter; and (3) the jury’s damages award was
excessive and unsupported by the evidence in the record. We
disagree with the first contention, and thus, need not address
Boring and Carter’s challenge to the alternative NIED claim. We
also decline to address their last contention because they failed to
preserve it for appeal.
¶ 10 On cross-appeal, Wicks, Nicholson, Andy, and Drew argue
that the trial court erred by denying their motion for a directed
verdict on Boring and Carter’s counterclaim for intrusion upon
seclusion. We disagree.
A. Standard of Review
¶ 11 We review de novo a trial court’s denial of a motion for a
directed verdict and a motion for a judgment notwithstanding the
verdict. Smith v. Surgery Ctr. at Lone Tree, LLC, 2020 COA 145M,
¶ 8. In reviewing decisions on these motions, we employ the same
standards as those the trial court must use. See State Farm Mut.
Auto. Ins. Co. v. Goddard, 2021 COA 15, ¶ 26. That is, we view the
evidence, and all inferences that reasonably may be drawn from it,
7 in the light most favorable to the nonmoving party. Int’l Network,
Inc. v. Woodard, 2017 COA 44, ¶ 8.
¶ 12 When the motion concerns a question of fact, a directed
verdict or judgment notwithstanding the verdict should be entered
only when the evidence “compels the conclusion that reasonable
jurors could not disagree and that no evidence or inference
therefrom had been received at trial upon which a verdict against
the moving party could be sustained.” Boulders at Escalante LLC v.
Otten Johnson Robinson Neff & Ragonetti PC, 2015 COA 85, ¶ 19.
Accordingly, “[a] court shouldn’t grant either motion unless there is
no evidence that could support a verdict against the moving party
on the claim.” Parks v. Edward Dale Parrish LLC, 2019 COA 19,
¶ 10. To the extent the motion involved a question of law, however,
we review the decision de novo. Boulders at Escalante LLC, ¶ 19.
B. The Trial Court Didn’t Err by Denying Boring and Carter’s Motion for a Directed Verdict on the Outrageous Conduct Claim
¶ 13 Boring and Carter contend that the trial court erred by
denying their motion for a directed verdict on plaintiffs’ outrageous
conduct claim because the conduct underlying that claim wasn’t
extreme and outrageous as a matter of law. We disagree.
8 1. Applicable Law
¶ 14 To prevail on a claim for outrageous conduct, a plaintiff must
prove that (1) the defendant engaged in extreme and outrageous
conduct; (2) they did so recklessly or with the intent of causing the
plaintiff severe emotional distress; and (3) the conduct caused the
plaintiff severe emotional distress. Mackall v. JPMorgan Chase
Bank, N.A., 2014 COA 120, ¶ 49. The level of outrageousness
required to establish the first element of the claim is extremely high.
Pearson v. Kancilia, 70 P.3d 594, 597 (Colo. App. 2003). “Only
conduct that is so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency and be
regarded as atrocious and utterly intolerable in a civilized
community, will suffice.” Id. Accordingly, “[m]ere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities are insufficient.” Id.
¶ 15 A claim for outrageous conduct may be submitted to the jury
only if the trial court determines that “the plaintiff’s allegations of
outrageous conduct are sufficiently outrageous as a matter of law.”
Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo. 1999). In
doing so, the court must evaluate outrageousness in the context of
9 the totality of the conduct, whether during a single incident or a
series of incidents. See Zalnis v. Thoroughbred Datsun Car Co., 645
P.2d 292, 294 (Colo. App. 1982). If reasonable persons could differ
on whether a series of acts is outrageous, the trial court must deny
a motion for a directed verdict and submit the claim to the jury.
See Meiter v. Cavanaugh, 580 P.2d 399, 401 (Colo. App. 1978); see
also Archer v. Farmer Bros. Co., 70 P.3d 495, 499 (Colo. App. 2002),
aff’d, 90 P.3d 228 (Colo. 2004).
2. Discussion
¶ 16 Boring and Carter contend that the trial court erred by
concluding that reasonable jurors could differ as to whether their
conduct was sufficiently extreme and outrageous. They assert that
“[d]ischarging firearms on private property in rural Colorado, riding
ATVs in the same area, and sounding a bear alarm and [fire truck]
siren on a handful of occasions over the course of years falls far
short of” outrageous conduct.
¶ 17 But while Boring and Carter characterize their actions as
“legal, intermittent, and at least to some extent, condoned by
[p]laintiffs,” we agree with the trial court that reasonable jurors
could conclude that their conduct as a whole constituted a pattern
10 of harassment and intimidation sufficiently extreme and outrageous
to create liability.
¶ 18 To begin, plaintiffs presented evidence that Boring’s and
Carter’s actions were intended to force Wicks and Nicholson out of
the neighborhood. To achieve that objective, Boring and Carter
engaged in a series of inflammatory acts that intimidated not only
their primary targets but also their other neighbors. Plaintiffs also
presented evidence that after the neighbors complained, they too
became the intended targets of the acts.
¶ 19 Those acts included consistent gunfire, both at Boring and
Carter’s and Weinant’s property. It also included racing ATVs
through the neighborhood, setting off fireworks, playing loud
screeching sounds, and using a chain saw to make noise. Boring
and Carter often engaged in these activities for hours at a time and
late into the night. Indeed, Laurie testified that, between June and
December 2017, she recorded roughly twenty-five separate
incidents of this nature. Plaintiffs also testified about specific
patterns to the acts targeting them. For example, they testified that
when they or guests would arrive home and get out of the car,
Boring or Carter would fire multiple shots.
11 ¶ 20 True, after Wicks and the Solidays obtained the November
2017 temporary protection order prohibiting Boring and Carter from
possessing firearms, there was a period during which they didn’t
shoot guns at their property. But the record also shows that the
protection order didn’t stop them from engaging in actions toward
plaintiffs. Wicks testified that while the protection order was still in
effect, Boring and Carter continued to race ATVs and shoot guns at
Weinant’s property. She recounted six incidents from August and
September 2018 when they engaged in such conduct. And after the
protection order was vacated a couple months later, Boring and
Carter resumed late night shooting at their property. Indeed, the
record shows that at least four such incidents occurred through
May 2019, and that during one of them, Boring and Carter shot
roughly 170 rounds in one night.
¶ 21 The record also shows that Boring and Carter were aware that
their conduct was bothering plaintiffs and yet continued to engage
in it. Wicks, Golec, Looney, and Laurie testified that each of them
contacted Boring and Carter to voice their concerns about the
shooting and other behavior that concerned them. Indeed, Golec
sent Boring an email stating that the shooting had retriggered his
12 post-traumatic stress disorder (PTSD). And while it’s true that
plaintiffs’ counsel later informed Boring and Carter that plaintiffs
would be okay with the shooting and ATV riding under certain
conditions, plaintiffs also presented evidence that Boring and Carter
disregarded those requests.
¶ 22 This record contradicts Boring and Carter’s argument that
their actions occurred infrequently and were indistinguishable from
common behavior in their rural neighborhood. Instead, it shows a
series of disturbing incidents that Boring and Carter repeatedly
engaged in even after having knowledge that those incidents
affected plaintiffs’ well-being, including causing Golec recurrence of
his PTSD. See Zalnis, 645 P.2d at 294 (courts are more likely to
find outrageous conduct in a series of incidents or a course of
conduct than in a single incident); see also Reigel v. SavaSeniorCare
L.L.C., 292 P.3d 977, 991 (Colo. App. 2011) (noting that a conduct
may become outrageous by virtue of a defendant’s knowledge that
the plaintiff is peculiarly susceptible to emotional distress by reason
of some physical or mental condition or peculiarity).
¶ 23 This record also cuts against Boring and Carter’s argument
that because the purpose of their actions was solely to drive Wicks
13 and Nicholson out of the neighborhood, their conduct could be
extreme and outrageous only as to those two plaintiffs. The
remaining plaintiffs, they argue, “cannot establish an outrageous
conduct claim based simply on the fact that those actions may have
adversely affected them.” But as is apparent from the above record,
those other plaintiffs were more than just unintended victims of
Boring and Carter’s conflict with Wicks and Nicholson. They were
subjected to the same behavior as Boring and Carter’s primary
targets.
¶ 24 Moreover, there is evidence in the record from which
reasonable jurors could conclude that Boring and Carter also
intended their actions to target the other plaintiffs in retaliation for
those plaintiffs’ opposition to their shooting and other activities.
See Green v. Qwest Servs. Corp., 155 P.3d 383, 386 (Colo. App.
2006) (noting that the conduct underlying an outrageous conduct
claim must be directed toward the plaintiff); cf. Coors Brewing Co.,
978 P.2d at 666 (concluding that a defendant’s conduct wasn’t
outrageous as a matter of law in part because it was directed
toward society, not the plaintiff).
14 ¶ 25 For example, Laurie recounted an incident when Boring made
a finger gun gesture toward her, testifying that she perceived that
act as a way for him to intimidate and terrify her. She also
recounted an incident when, in her words, “[Carter] tried to
intimidate [her] by coming down a very narrow, icy stretch [of the
dirt road] at high speeds and [she] had to get the heck out of the
way.” Similarly, Looney testified that after she reported Boring and
Carter to the police one day, they parked their ATVs in front of her
house at around 1 a.m. the next morning. Moreover, while Boring
and Carter’s property was roughly ten acres in size, Looney testified
that they were shooting along her property line that was located
only about twenty yards from her house. And less than two months
after Golec emailed Boring about how the shooting had retriggered
his PTSD, Boring and Carter shot guns on the property bordering
Golec’s property.
¶ 26 Viewing the entire record in the light most favorable to
plaintiffs, see Woodard, ¶ 8, we conclude that reasonable jurors
could differ about whether Boring’s and Carter’s conduct as a whole
was extreme and outrageous, see Meiter, 580 P.2d at 401. Under
15 these circumstances, then, the trial court didn’t err by denying their
motion for a directed verdict on that issue.
C. We Need Not Address Plaintiffs’ Alternative NIED Claims
¶ 27 Boring and Carter next argue that the trial court erred by
entering judgment on plaintiffs’ NIED claims because the plaintiffs
who ultimately prevailed against them — Golec, Looney, Wicks,
Andy, and Laurie — failed to establish all the elements of that tort.
¶ 28 To prevail on their respective NIED claims, these plaintiffs
were required to show that (1) Boring and Carter were negligent;
(2) the negligent conduct created an unreasonable risk of physical
harm that caused the plaintiff to fear for their safety; (3) the fear
caused the plaintiff to suffer physical consequences or
long-continued emotional disturbance; and (4) the plaintiff’s fear
was the cause of the damages sought. See Draper v.
DeFrenchi-Gordineer, 282 P.3d 489, 496-97 (Colo. App. 2011); see
also Towns v. Anderson, 579 P.2d 1163, 1164-65 (Colo. 1978);
CJI-Civ. 9:2 (2024).
¶ 29 Boring and Carter challenge the second and third elements of
NIED. Specifically, they argue that plaintiffs presented no evidence
16 that (1) Boring’s and Carter’s actions created an unreasonable risk
of physical harm or (2) plaintiffs’ emotional distress manifested
itself in physical injuries that they caused.
¶ 30 However, we need not address the merits of these arguments
in light of our conclusion that the trial court didn’t err by entering
judgment on plaintiffs’ outrageous conduct claim. As we note
above, plaintiffs pleaded NIED as an alternative theory of liability to
their outrageous conduct claim. In doing so, they didn’t argue that
those two claims were based on different conduct or that they had
suffered different damages for the two claims. Instead, the record
shows that both claims were premised on the same conduct and
that plaintiffs argued that they incurred one set of injuries and
damages from that conduct. In other words, there was no
distinction between harm that was caused negligently as opposed to
intentionally.
¶ 31 Under these circumstances, NIED was merely an alternative
theory under which plaintiffs sought to hold Boring and Carter
liable for their actions. Because plaintiffs prevailed on their
primary claim of outrageous conduct — and we affirm that
judgment here — we need not consider whether the trial court erred
17 by entering judgment on plaintiffs’ alternative NIED claim.4 See
Winston Fin. Grp., Inc. v. Fults Mgmt., Inc., 872 P.2d 1356, 1358
(Colo. App. 1994) (affirming a trial court’s judgment entered upon a
bench trial on one ground and declining to address the court’s
alternative basis supporting that judgment). And even if we were to
assume that the trial court erred, any such error would be harmless
given that the jury didn’t award any separate damages for NIED.
See C.R.C.P. 61 (providing that an error in a civil case is harmless,
and thus doesn’t require reversal, unless it affects a substantial
right of a party).
D. Boring and Carter Did Not Preserve Their Challenges to the Damages Awards
¶ 32 Boring and Carter challenge the jury’s damages awards on
multiple grounds. Specifically, Boring and Carter contend that the
jury erred by awarding
• damages for emotional distress to Wicks, Looney, Golec,
Laurie, and Andy because those plaintiffs failed to present
4 Plaintiffs agreed during oral argument that NIED was only an
alternative theory of liability that we need not address if we affirm on the outrageous conduct claim. Boring and Carter’s counsel didn’t disagree with that assertion.
18 evidence about how they calculated their requested
damages;
• nonrecoverable litigation stress damages to Looney, Golec,
Laurie, and Andy;
• damages for their annoyance and discomfort to Wicks,
Nicholson, and Drew;
• damages for the loss of use and enjoyment of property to
Wicks, Looney, Golec, Nicholson, Laurie, and Andy because
those awards aren’t supported by any competent evidence
in the record; and
• other damages that are not recoverable under law, such as,
(1) punitive damages to Wicks that were “based on the
financial strain caused by this litigation”; and (2) derivative
noneconomic damages to Andy based on his testimony that
he had suffered emotional distress during an incident
involving Boring’s and Carter’s conduct toward his wife
Laurie, not him.
¶ 33 But the record shows that, except for the litigation stress issue
listed in the second bullet point, Boring and Carter didn’t even
mention any of the other issues in the trial court. Their motion for
19 a directed verdict didn’t focus on the issue of damages but only on
the other elements of the outrageous conduct, NIED, and nuisance
claims. And while Boring and Carter argued in their motion for a
judgment notwithstanding the verdict that the jury awarded
excessive damages considering the nature of their conduct, that
general challenge to the amount of damages wasn’t supported by
the specific arguments they pursue in this appeal.
¶ 34 Relying on McCoy v. People, 2019 CO 44, Boring and Carter
contend that they are entitled to raise this challenge to the damages
awards for the first time on appeal because it constitutes a
sufficiency of the evidence claim. But this is a civil case, not
criminal case. So we disagree. See Plaza del Lago Townhomes
Ass’n v. Highwood Builders, LLC, 148 P.3d 367, 372 (Colo. App.
2006) (concluding that a party failed to preserve a sufficiency of the
evidence challenge to the civil damages award by failing to raise
that issue in the trial court); see also People in Interest of M.B., 2020
COA 13, ¶ 14 (noting that, except where jurisdiction is implicated,
our review in civil cases is limited to the issues that the parties
presented to and obtained a ruling from the trial court).
20 ¶ 35 Because Boring and Carter failed to raise these arguments in
the trial court, they are not preserved for appellate review. See
Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO
61, ¶ 18 (“It is axiomatic that issues not raised in or decided by a
lower court will not be addressed for the first time on appeal.”). We
thus decline to address them further.5 See Valentine v. Mountain
States Mut. Cas. Co., 252 P.3d 1182, 1188 n.4 (Colo. App. 2011)
5 Boring and Carter also argue that we should address their
unpreserved argument about the derivative noneconomic damages because the jury “manifestly erred” by awarding Andy those damages without the court first “find[ing] justification by clear and convincing evidence therefor,” as required under section 13-21-102.5(3)(b), C.R.S. 2024. We’re not persuaded. “[O]nly in a ‘rare’ civil case, involving ‘unusual or special’ circumstances — and even then, only ‘when necessary to avert unequivocal and manifest injustice’ — will an appellate court reverse based on an unpreserved claim of error.” Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1269 (Colo. App. 2010) (citation omitted). Boring and Carter’s reference to Andy’s short testimony about one incident, when plaintiffs’ emotional distress claims were based on a series of incidents occurring over a two-year period, doesn’t meet this demanding standard. And to the extent Boring and Carter argue that we should review this issue because “the mandatory provision of [s]ection [13-21]-102.5(3)[b] should be considered self-executing,” we note that they offer no authority or analysis in support of that sweeping proposition. Consequently, we decline to further consider this undeveloped argument. See Cikraji v. Snowberger, 2015 COA 66, ¶ 21 n.3 (“We do not consider bald factual or legal assertions presented without argument or development.”).
21 (“We review only the specific arguments a party pursued before the
district court.”).
¶ 36 Boring and Carter did mention the litigation stress argument
in their motion for a judgment notwithstanding the verdict, stating
that plaintiffs “themselves testified that they were not presently
suffering from emotional distress from anything other than
litigation stress, which is not compensable.” It is questionable
whether this bare bones reference with no supporting argument
was sufficient to alert the trial court of the basis for the objection.
Regardless, it fails.
¶ 37 In advancing this argument on appeal, Boring and Carter
point us to the language of the damages instructions for the
outrageous conduct and NIED claims. As relevant here, both
instructions provided that in determining damages, the jury must
consider “[a]ny noneconomic losses or injuries a plaintiff has had to
the present time or that a plaintiff will probably have in the future,
including . . . physical and mental pain and suffering,
inconvenience, [and] emotional stress . . . .” (Emphasis added.)
¶ 38 Boring and Carter argue that because the jury was instructed
that it could award damages for emotional stress, and “assuming
22 the jury followed the instructions, there is every reason to think
that its award of noneconomic damages to Golec, Looney, and
[Andy] and Laurie Soliday included an award for the stress caused
by this litigation.” In other words, Boring and Carter posit that the
trial court erred by not instructing the jury that damages for
emotional stress should exclude those damages for
noncompensable litigation stress.
¶ 39 But the record shows that Boring and Carter also failed to
raise this instructional challenge in the trial court. The parties
jointly submitted the relevant damages instructions as part of the
undisputed instructions packet before the first trial. The parties
then stipulated to those identical instructions for the second trial
that gave rise to this appeal. When the trial court went over the
damages instructions during the jury instructions conference,
Boring and Carter didn’t object or request an instruction that would
clarify the meaning of emotional stress.
¶ 40 C.R.C.P. 51 provides that “[a]ll instructions shall be submitted
to the parties, who shall make all objections thereto before they are
given to the jury. Only the grounds so specified shall be considered
. . . on appeal or certiorari.” Boring and Carter’s failure to object to
23 the jury instructions they now challenge on appeal constitutes
waiver. See Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1200-01
(Colo. App. 2009) (declining to review an instructional challenge
where the party failed to object to the instruction); see also
Farmland Mut. Ins. Cos. v. Chief Indus., Inc., 170 P.3d 832, 839
(Colo. App. 2007) (concluding that a party waived an issue that it
raised in its motion for a judgment notwithstanding the verdict but
failed to request a jury instruction on in the trial court).
¶ 41 Because this issue is waived, we likewise decline to address it
further.
E. The Trial Court Didn’t Err by Submitting to the Jury Boring and Carter’s Counterclaim for Intrusion upon Seclusion
¶ 42 On cross-appeal, Wicks, Nicholson, Andy, and Drew contend
that the trial court erred by denying their motion for a directed
verdict on Boring and Carter’s intrusion upon seclusion
counterclaim.
¶ 43 In Colorado, invasion of privacy encompasses three separate
torts: (1) unreasonable intrusion upon the seclusion or solitude of
another; (2) unreasonable publicity given to another’s private life;
and (3) appropriation of another person’s name or likeness.
24 Pearson, 70 P.3d at 598-99. Boring and Carter alleged the first tort
for their counterclaim, asserting that plaintiffs unreasonably
intruded upon their seclusion by taking photos and videos with
surveillance cameras that plaintiffs surreptitiously installed in the
neighborhood. To prevail, Boring and Carter had to show that
plaintiffs “intentionally intruded, physically or otherwise, upon
[their] seclusion or solitude, and that such intrusion would be
considered offensive by a reasonable person.” Doe v. High-Tech
Inst., Inc., 972 P.2d 1060, 1065 (Colo. App. 1998) (citing
Restatement (Second) of Torts § 652B (Am. L. Inst. 1981)). A claim
for intrusion upon seclusion contemplates an intrusion upon a
physical space held in seclusion by the person asserting the claim,
but it also “encompasses intrusions into a person’s private concerns
based upon a reasonable expectation of privacy in that area.” Id. at
1068.
¶ 44 Plaintiffs moved for a directed verdict at the close of all
evidence, arguing that Boring and Carter couldn’t prevail on their
counterclaim because they presented no evidence that the cameras
intruded upon their privacy or that such intrusion would be viewed
as offensive by a reasonable person. Specifically, plaintiffs
25 contended that Boring and Carter had no reasonable expectation of
privacy given that the evidence established that the cameras weren’t
facing their property and that those cameras didn’t record them
inside their home. Rather, plaintiffs asserted, all photos and videos
showed Boring and Carter while they were either out on the
neighborhood road or in their backyard, which was visible from
Looney’s property. And in advancing their argument that Boring
and Carter couldn’t establish that the intrusion, if any, would be
offensive to a reasonable person, plaintiffs pointed out that they
installed the cameras for their security and to document Boring’s
and Carter’s activities that they found objectionable.
¶ 45 The trial court denied plaintiffs’ motion for a directed verdict.
It determined that because some photos showed areas of Boring
and Carter’s property, “[t]he jury could certainly accept factually
that . . . one camera [that] had the ability to take photos was
pointed at [their property].” And in concluding that a reasonable
juror could find that Boring and Carter had an expectation of
privacy under the circumstances, the court distinguished this case
from Jacobson v. CBS Broadcasting, Inc., 19 N.E.3d 1165 (Ill. App.
Ct. 2014), observing that
26 [the Jacobson case] indicates taking pictures in the backyard, there was no expectation of privacy because the backyard was visible from the sidewalk. This is not a case where anything would be visible from a sidewalk. This is not a sidewalk case. This is a rural area. It’s a heavily tree[d] area. These properties are far apart from each other. The . . . court does find that . . . under this scenario, under this standard, there can be [an expectation] of privacy in a rural area with houses far away in your own yard.
¶ 46 Plaintiffs contend that the trial court erred when it reached
this conclusion because “[a]s a matter of law, [Boring and Carter] do
not have any expectation of privacy when they are on the road or
when they are outside and can be viewed from [p]laintiffs’
properties.” In support, plaintiffs point out that the “undisputed
evidence establishe[d]” that the cameras weren’t pointed toward
Boring and Carter’s property and that there was no evidence “that
any [p]laintiff ever went onto [Boring and Carter’s] property or that
[plaintiffs] ever looked into their residence.” We’re not persuaded
for two reasons.
¶ 47 First, we disagree with plaintiffs’ implication that the right to
seclusion only exists within a person’s home and doesn’t extend to
any area outside of it. While the interior of a home is a private
27 place, surveilling a person’s backyard may also give rise to an
invasion of privacy claim given that “there is a reasonable
expectation of privacy within the curtilage of a residence.” Jackman
v. Cebrink-Swartz, 334 So. 3d 653, 656-67 (Fla. Dist. Ct. App. 2021)
(emphasis added).
¶ 48 Second, plaintiffs’ argument mischaracterizes the record. As
the trial court noted, there was a factual dispute as to whether the
cameras were directed toward Boring and Carter’s property. Boring
and Carter testified that plaintiffs installed a camera high on a tree
facing their backyard. Indeed, they both testified that they saw the
recording light on the tree camera from inside their house, with
Boring stating that he could “see a red dot from [their] bathroom.”
And while plaintiffs assert that the part of the property where
Boring and Carter fired guns was “in plain sight from Looney’s
property,” Carter testified that this area wasn’t visible from the road
that went through the neighborhood. Further, pictures of one of
the security cameras shows that limbs are only cut away in one
section. Carter testified that the camera was installed on the part
of the tree “in between where the [branches were] cut out.”
28 ¶ 49 This record shows that Boring and Carter presented evidence
from which reasonable jurors could dispute whether plaintiffs
intruded upon their seclusion by installing surveillance cameras
that were pointed to parts of the property where they had a
reasonable expectation of privacy. See id. at 655-57 (holding that a
party intruded upon the seclusion of their neighbor by installing a
surveillance camera roughly twenty-five feet in the air and pointing
that camera toward the neighbor’s backyard). Cf. Schiller v.
Mitchell, 828 N.E.2d 323, 326-29 (Ill. App. Ct. 2005) (dismissing a
plaintiff’s intrusion upon seclusion claim where a neighbor’s
surveillance camera was facing the parts of the plaintiff’s property
that were in a public view).
¶ 50 Plaintiffs contend that Boring and Carter nonetheless can’t
prevail on their counterclaim because they failed to establish that
the intrusion was offensive to a reasonable person. In support of
this argument, plaintiffs assert that Boring and Carter “did not
present any testimony that the photos/videos of them on the road
or shooting were ‘offensive.’” But this argument misses the point.
The governing test is not whether the intrusion resulted in one
person acquiring information about another that a reasonable
29 person would view as offensive. Rather, the question is whether a
reasonable person would find the intrusion itself offensive
considering its degree, manner, and purpose. See Doe, 972 P.2d at
1069.
¶ 51 Here, the record shows that plaintiffs used cameras to monitor
Boring and Carter’s house for at least two years, making hundreds
of videos. A reasonable juror could find this extended and
persistent surveillance offensive. See Jackman, 334 So. 3d at
656-57 (“[W]e conclude that there is a material difference between
occasionally viewing the activities within a neighbor’s backyard that
are observable without peering over a privacy fence and erecting a
camera to see over a privacy fence to thereafter surveil and record
those activities on a consistent basis.”); see also Polay v. McMahon,
10 N.E.3d 1122, 1127-28 (Mass. 2014) (holding that the trial court
erred by dismissing a claim for intrusion upon seclusion where a
defendant was recording the plaintiff’s home on a continuous
basis).
¶ 52 True, the record also shows that plaintiffs installed the
cameras to document Boring’s and Carter’s behavior after a police
deputy suggested that they should take photos and videos of the
30 activities they perceived as harassment. But while plaintiffs argue
that this means their surveillance wasn’t for an unwarranted
purpose, it was for the jury — and not the trial court — to decide
that question of fact. See Robert C. Ozer, P.C. v. Borquez, 940 P.2d
371, 378 (Colo. 1997) (noting that whether a disclosure of a
person’s private life would be highly offensive to a reasonable
person is a question of fact).
¶ 53 Finally, we also disagree with plaintiffs’ conclusory assertion
that Boring and Carter failed to present any evidence of damages.
Boring testified that the surveillance caused him mental anguish,
noting that he constantly felt like someone was “going to pop out
and take a picture of [him and Carter].” He also testified that when
he and Carter would go back to visit the neighborhood, they would
feel like someone was keeping an eye on what they were doing and
videotaping them. Similarly, Carter testified that she and Boring
had to move out of the neighborhood “because of the feeling of being
watched on your own property all the time.” She stated that the
knowledge that plaintiffs had been surveilling her made her feel
anxious, “watched,” and mentally drained. Boring and Carter thus
presented competent evidence that they had suffered compensable
31 injuries. Doe, 972 P.2d at 1066 (noting that a person who suffers
an intrusion upon their seclusion is entitled to recover, among
other things, damages for mental suffering).
¶ 54 In sum, we conclude that, viewing the evidence in the light
most favorable to Boring and Carter, see Woodard, ¶ 8, there was
sufficient evidence to create a factual dispute upon which
reasonable jurors could have differed, Boulders at Escalante LLC,
¶ 19. The trial court therefore didn’t err by denying plaintiffs’
F. Appellate Attorney Fees
¶ 55 Plaintiffs request an award of attorney fees that they incurred
in defending against this appeal. Relying on section 13-17-102,
C.R.S. 2024, plaintiffs contend that Boring and Carter’s appeal
lacked substantial justification because many of their arguments
were not preserved in the trial court.
¶ 56 Section 13-17-102(2) provides that the court may award
attorney fees against a party who “brought or defended a civil
action, either in whole or in part, that the court determines lacked
substantial justification.” An action “lacked substantial
32 justification” if it was “substantially frivolous, substantially
groundless, or substantially vexatious.” § 13-17-102(9)(a).
¶ 57 While we decline to address the merits of Boring and Carter’s
challenges to the NIED claim and damages awards, we don’t
conclude they brought this appeal in bad faith or presented no
rational argument based on the evidence or law in its support. See
Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282,
299-301 (Colo. App. 2009) (defining substantially frivolous,
substantially groundless, and substantially vexatious claims). And
they partially prevailed in this appeal in any case by successfully
defending the portion of the judgment in their favor. We therefore
deny the request for appellate attorney fees.
III. Disposition
¶ 58 The judgment is affirmed.
JUDGE YUN and JUDGE BERGER concur.