Grand Junction v. City of Grand Junction

• Court: Colorado Court of Appeals
• Decided: May 7, 2026
• Docket: 25CA1325
• Status: Unpublished

Opinion

25CA1325 Grand Junction v City of Grand Junction 05-07-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1325 Mesa County District Court No. 21CV30108 Honorable JenniLynn Everett Lawrence, Judge

Grand Junction Peace Officers’ Association, a/k/a Grand Junction Police Officers’ FOP Lodge 68, on behalf of its members and on behalf of all others similarly situated,

Plaintiff-Appellee,

v.

The City of Grand Junction; Claudia Hazelhurst; Jodilyn Romero, n/k/a Jodilyn “Jodi” Welch; and Gregory Caton,

Defendants-Appellants.

ORDERS REVERSED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE SULLIVAN Fox and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 7, 2026

Wegener Lane & Evans, PC, Benjamin Wegener, Meaghan Fischer, Grand Junction, Colorado, for Plaintiff-Appellee

Nathan Dumm & Mayer P.C., J. Andrew Nathan, Daniel A. Jacobs, Jeffrey E. Miller, Denver, Colorado, for Defendants-Appellants ¶1 Defendants, the City of Grand Junction (the City) and three of

its employees, Claudia Hazelhurst; Jodilyn Welch, f/k/a Jodilyn

Romero; and Gregory Caton (collectively, the individual

defendants), appeal the district court’s orders denying their

(1) requests to dismiss a claim for an accounting asserted by

plaintiff, Grand Junction Peace Officers’ Association, a/k/a Grand

Junction Police Officers’ FOP Lodge 68 (the Association); and

(2) motion for attorney fees and costs. We reverse and remand the

case to the district court with directions.

I. Background and Procedural History

¶2 In 1998, the City created the Retiree Health Program (RHP) to

pay the health insurance premiums for certain retired City

employees. The City initially required that all City employees

enrolled in the City’s health insurance plan participate in the RHP,

which was funded through biweekly deductions from participating

employees’ paychecks. Under the RHP, participating employees’

contributions were nonrefundable.

¶3 Due to concerns about the RHP’s financial stability, the City

later made substantial changes to the program that included

1 changing the funding structure, enrollment and eligibility

requirements, and available benefits.

¶4 In April 2021, the Association filed a class action complaint

against the City and the individual defendants; the individual

defendants were each City employees at the times relevant to this

appeal and were named in their individual and official capacities.

In its amended complaint, the Association alleged that the RHP

“may no longer be financially viable” due to defendants’

mismanagement. It asserted that RHP participants “may lose all of

their contributions, and the earnings that should have been made

had the funds been invested and managed properly.” The

Association added that defendants’ actions make it “virtually

impossible for anyone other than [the City] to make an entirely

accurate calculation of the contributions paid into the RHP and the

additional premiums and benefits due and owing under the RHP.”

¶5 Based on these allegations, the Association brought three

claims against the City (breach of contract, unjust enrichment, and

a request for an accounting) and seven claims against the

individual defendants (civil theft, breach of fiduciary duty,

fraudulent misrepresentation, negligent misrepresentation of a

2 material fact, conversion of property, civil conspiracy to commit

fraud, and interference with performance of a contract).

¶6 Defendants filed a motion to dismiss under C.R.C.P. 12(b)(1),

asserting that the district court lacked subject matter jurisdiction

under the Colorado Governmental Immunity Act (CGIA), sections

24-10-101 to -120, C.R.S. 2025, because the Association’s claims

lie in tort or could lie in tort. In response, the Association agreed to

voluntarily withdraw its claims for civil theft, fraudulent

misrepresentation, conversion of property, and civil conspiracy to

commit fraud claims. But as to the remaining six claims, it

requested a Trinity hearing to resolve factual issues. See Trinity

Broad. of Denv., Inc. v. City of Westminster, 848 P.2d 916 (Colo.

1993).

¶7 The district court issued a detailed written order granting

defendants’ motion to dismiss in part (dismissal order). It

dismissed the breach of contract claim, reasoning it could lie in tort

and was therefore barred under the CGIA. It also dismissed the

negligent misrepresentation and interference with the performance

of a contract claims based upon the Association’s untimely notice of

those claims. But the court denied the motion in part and

3 scheduled a Trinity hearing to determine factual issues related to

the breach of fiduciary duty and unjust enrichment claims. Finally,

the court concluded that the Association’s request for an

accounting couldn’t lie in tort and therefore wasn’t barred under

the CGIA.

¶8 After holding a Trinity hearing, the district court issued a

written order dismissing the unjust enrichment claim against the

City because it could lie in tort, rendering it barred under the CGIA

(Trinity order). It also dismissed the breach of fiduciary duty claim

against the individual defendants as untimely. As to the

accounting claim, although the court listed a “request for [an]

accounting” as one of the Association’s claims, it didn’t

substantively analyze the claim under the CGIA.

¶9 In summarizing its conclusions in the Trinity order, the district

court determined that the Association had failed to prove that the

court had subject matter jurisdiction or that the City had waived

sovereign immunity under the CGIA. The court therefore dismissed

the complaint for lack of subject matter jurisdiction. It further

concluded that defendants were entitled to recover their reasonable

attorney fees and costs.

4 ¶ 10 The Association then moved for clarification, pointing out that

the Trinity order didn’t address its accounting claim. For their part,

defendants filed a motion for attorney fees and costs, arguing that

the court had dismissed the Association’s amended complaint “in

its entirety.” See § 13-17-201(1), C.R.S. 2025; C.R.C.P. 54(d).

¶ 11 Before the court ruled on either motion, the Association filed

an interlocutory appeal under section 24-10-108, C.R.S. 2025. A

division of this court affirmed the dismissal of the breach of

contract and unjust enrichment claims against the City and the

breach of fiduciary duty claim against the individual defendants.

See Grand Junction Peace Officers’ Ass’n v. City of Grand Junction,

2024 COA 89, ¶ 30 (Grand Junction I). But the division agreed with

the Association that “the record [wa]s unclear whether the court

intended to dismiss the Association’s accounting claim, together

with the Association’s other claims.” Id. at ¶ 85. The division,

therefore, remanded the case to the district court “to rule on the

motion for clarification, and to enter final orders on . . . defendants’

pending motion for an award of attorney fees and costs.” Id. at

¶ 89.

5 ¶ 12 On remand, the district court resolved the Association’s

motion for clarification by concluding that the accounting claim

“may proceed in this court as an equitable claim, independent and

distinct from a claim for damages” (clarification order). And

because the accounting claim remained pending, the court denied

defendants’ request for attorney fees but didn’t mention their

related request for costs.

¶ 13 The City moved for reconsideration, arguing that the court

erred by permitting the accounting claim to proceed and requesting

that the court amend its judgment to dismiss the Association’s

complaint. The district court denied the City’s motion, reasoning

that “an accounting can be a stand-alone claim to secure the

equitable relief of a clear and verifiable record of the financial

activity of the retirement accounts” (reconsideration order).

II. Discussion

¶ 14 Defendants appeal the clarification order and the

reconsideration order. They contend that the district court erred by

not dismissing the Association’s accounting claim under the CGIA.

They also assert that the court erred by denying their request for

attorney fees and not addressing their request for costs.

6 A. Appellate Jurisdiction

¶ 15 We first address, and reject, the Association’s contention that

we lack jurisdiction to hear this appeal.

1. Applicable Law and Standard of Review

¶ 16 We review de novo whether we have jurisdiction over the

defendants’ appeal. Smith v. City & County of Denver, 2025 COA

70, ¶ 17. We similarly review questions of statutory interpretation

de novo. Elder v. Williams, 2020 CO 88, ¶ 17.

¶ 17 Generally, we have jurisdiction only over appeals from final

judgments. Smith, ¶ 14. A judgment is final when “it ends the

particular action and leaves nothing further for the court to do to

completely determine the rights of the parties involved in the

proceeding.” Id. at ¶ 15. But in limited circumstances, a party may

take an interlocutory appeal before the district court has disposed

of the case entirely. Id. The CGIA provides one such circumstance

by permitting parties to seek interlocutory appellate review of

decisions resolving questions of sovereign immunity. See § 24-10-

108; Smith, ¶ 16.

¶ 18 In determining whether the CGIA authorizes interlocutory

review, we must read the statutory framework as a whole, giving

7 consistent, harmonious, and sensible effect to all its parts. Elder,

¶ 18. In doing so, we give words and phrases their plain and

ordinary meanings. Id. If the statute’s language is clear and

unambiguous, we apply the statute as written and need not resort

to other tools of statutory interpretation. Id.

¶ 19 The timely filing of a notice of appeal is a mandatory

prerequisite to appellate review. Smith, ¶ 14. In a civil case, a party

generally must file a notice of appeal “within [forty-nine] days after

entry of the judgment, decree, or order being appealed.” C.A.R.

4(a)(1); Smith, ¶ 14. But a timely filed C.R.C.P. 59 motion “tolls the

deadline for filing a notice of appeal.” Said v. Magdy, 2024 COA

109, ¶ 8; accord C.A.R. 4(a)(3). Moreover, Rule 59 applies to

motions seeking relief from interlocutory orders that are

immediately appealable by statute or rule. Said, ¶ 11. A motion for

reconsideration can qualify as a Rule 59 motion even if it doesn’t

cite the rule. Id. at ¶ 10.

2. Analysis

¶ 20 The Association contends that we lack jurisdiction over this

appeal for four reasons: (1) the CGIA authorizes interlocutory review

only of decisions resolving a public entity’s “motion” raising

8 sovereign immunity, § 24-10-108, and defendants filed no motion to

dismiss or similar motion after the remand in Grand Junction I;

(2) because the accounting claim remains pending before the

district court, the orders appealed in this case didn’t resolve all

issues and therefore aren’t appealable “final orders”; (3) the division

in Grand Junction I already resolved “all issues” regarding sovereign

immunity, and section 24-10-108 doesn’t authorize a second round

of interlocutory review; and (4) defendants’ appeal of the

clarification order is untimely. We disagree and conclude that we

have jurisdiction over this appeal.

¶ 21 As to the Association’s first two contentions, the CGIA

provides, as relevant here, “If a public entity raises the issue of

sovereign immunity . . . , the court . . . shall decide such issue on

motion. The court’s decision on such motion shall be a final

judgment and shall be subject to interlocutory appeal.” § 24-10-

108. Thus, the plain language of the statute doesn’t limit

interlocutory review to only orders ruling on a motion to dismiss;

rather, it encompasses any order in which a court resolves a motion

“rais[ing]” sovereign immunity. Id.

9 ¶ 22 Here, defendants raised sovereign immunity in their motion to

dismiss and at the Trinity hearing. After the district court issued

the Trinity order, the Association moved to clarify whether the court

had dismissed the accounting claim on sovereign immunity

grounds. In the clarification order, the court ruled that the

accounting claim remained pending notwithstanding the CGIA.

Similarly, the court issued the reconsideration order in response to

defendants’ motion asking the court to reconsider its conclusion on

that issue. Together, the clarification order and reconsideration

order resolved multiple motions that raised sovereign immunity as

to the accounting claim. Therefore, under the plain language of

section 24-10-108, the orders are subject to interlocutory review.1

¶ 23 Turning to the Association’s third contention, we disagree that

the Association’s prior interlocutory appeal in Grand Junction I

forecloses defendants’ current appeal. The district court didn’t

1 To the extent the Association argues that the CGIA doesn’t provide

for interlocutory review of the accounting claim because the district court already determined that the claim isn’t subject to the CGIA, the plain language of the statute similarly forecloses that argument. Indeed, divisions of this court have often heard cases in which a district court denied a motion to dismiss a claim as barred under the CGIA. See, e.g., Dodge v. Padilla, 2023 COA 67, ¶ 6; Bilderback v. McNabb, 2020 COA 133, ¶ 1.

10 resolve whether the accounting claim was subject to the CGIA

before the division decided Grand Junction I, and the division

specifically instructed the court to resolve that question on remand.

Grand Junction I, ¶¶ 84, 89. We are aware of no authority, and the

Association cites none, indicating that a party may not pursue

interlocutory review under section 24-10-108 of an order deciding a

previously unresolved CGIA question on remand.

¶ 24 As to the Association’s fourth contention, we conclude that

defendants timely filed their notice of appeal under C.A.R. 4(a)(1).

The Association doesn’t dispute that defendants filed their notice of

appeal within forty-nine days of the reconsideration order. And

while defendants didn’t appeal within forty-nine days of the

clarification order, all agree that they filed their motion for

reconsideration within fourteen days of that order. Thus, if the

motion for reconsideration qualified as a Rule 59 motion, it would

toll the time to appeal the clarification order and render defendants’

notice of appeal timely as to both orders.2 See C.R.C.P. 59(a)

2 The district court issued its clarification order on April 16, 2025.

Defendants moved for reconsideration fourteen days later, on April 30. The court issued its reconsideration order on July 4, and defendants subsequently filed their notice of appeal on July 17.

11 (permitting a party to file a motion for post-trial relief “[w]ithin

[fourteen] days of entry of judgment”); Said, ¶ 8 (a timely filed Rule

59 motion tolls the notice of appeal deadline).

¶ 25 We agree with defendants that their motion for reconsideration

qualified as a Rule 59 motion. The motion sought amendment of

the court’s judgment that the accounting claim wasn’t subject to

dismissal under the CGIA, bringing it squarely within Rule 59. See

C.R.C.P. 59(a)(4); Said, ¶ 14; § 24-10-108 (referring to a court’s

order that resolves a motion raising sovereign immunity as a “final

judgment . . . subject to interlocutory appeal”). And while the

motion cited C.R.C.P. 121, section 1-15(11), rather than Rule 59,

the substance of both the motion and the reconsideration order

focused on whether the court’s judgment under the CGIA should be

amended. See Graham v. Zurich Am. Ins. Co., 2012 COA 188, ¶ 17

(“[W]e look to substance, not labels.”); see also Said, ¶¶ 10-11

(construing a motion for reconsideration as a Rule 59 motion, even

though the movant didn’t cite the rule, because the motion sought

relief from an order that was immediately appealable).

12 ¶ 26 Accordingly, defendants’ motion for reconsideration tolled the

time for appealing the clarification order and rendered their later

notice of appeal timely.

B. The CGIA

¶ 27 Defendants contend that, even if a request for an accounting

can constitute a stand-alone claim, the Association’s accounting

claim is nonetheless barred by sovereign immunity under the CGIA.

We agree.3

1. Preservation and Waiver

¶ 28 Before considering whether the Association’s accounting claim

is barred under the CGIA, we briefly address the Association’s

contention that defendants either failed to preserve this argument

or waived it. Specifically, the Association contends defendants

(1) didn’t preserve their argument that the Association’s accounting

claim is barred under the CGIA, even if the claim is a stand-alone

claim, because defendants didn’t raise that argument in their

3 In light of our conclusion, we don’t address defendants’ alternative

arguments (1) that the district court erred by concluding the Association’s request for an accounting was a stand-alone claim or (2) that allowing the accounting claim to proceed would cause manifest injustice.

13 motion for reconsideration; and (2) waived their argument that the

CGIA bars the accounting claim because defendants could have,

but didn’t, appeal the dismissal order in which the court declined to

dismiss the accounting claim.

¶ 29 We reject these contentions. Because the question of

sovereign immunity implicates a court’s subject matter jurisdiction

to hear a claim, a public entity may raise the CGIA’s applicability at

any time in the proceeding, including for the first time on appeal.

Smith, ¶ 27; see also Walton v. State, 968 P.2d 636, 640 (Colo.

1998) (“[T]he CGIA requires a jurisdictional analysis,” and “[c]ourts

may examine an issue of subject matter jurisdiction at any stage in

the proceeding.”). As a corollary principle, parties can’t waive a

court’s subject matter jurisdiction. Mesa Cnty. Valley Sch. Dist. No.

51 v. Kelsey, 8 P.3d 1200, 1206 (Colo. 2000). Thus, any alleged

waiver or lack of preservation of defendants’ CGIA argument in the

district court doesn’t foreclose our review.

¶ 30 In any event, we don’t agree with the Association that

defendants failed to raise their argument that the accounting claim

is barred under the CGIA, even if the claim is a stand-alone claim.

True, the City didn’t raise this specific argument in its motion for

14 reconsideration. But it did raise it in response to the Association’s

motion for clarification, asserting that the accounting claim’s

equitable nature doesn’t “exempt [it] from considerations under the

[CGIA].” As a result, even if preservation were required, the City

sufficiently presented the “sum and substance” of the argument to

the district court to preserve the issue for appeal. Gebert v. Sears,

Roebuck & Co., 2023 COA 107, ¶ 25 (citation omitted).

2. Applicable Law and Standard of Review

¶ 31 Under the CGIA, “sovereign immunity shall be a bar to any

action against a public entity for injury which lies in tort or could

lie in tort regardless of whether that may be the type of action or the

form of relief chosen by a claimant.” § 24-10-108. By enacting the

CGIA, the General Assembly “sought to protect the government

from ‘excessive fiscal burdens,’ which include not only the costs of

judgments against the government but the costs of unnecessary

litigation as well.” Grand Junction I, ¶ 18 (citation omitted).

¶ 32 The CGIA’s coverage isn’t “limited to claims that are presented,

or are capable of being presented, directly by the claimant as tort

claims.” Colo. Dep’t of Transp. v. Brown Grp. Retail, Inc., 182 P.3d

687, 691 (Colo. 2008). Rather, the statute “more broadly

15 encompasses all claims against a public entity arising from the

breach of a general duty of care, as distinguished from contractual

relations or a distinctly non-tortious statutorily-imposed duty.” Id.

In determining whether a particular claim is covered by the CGIA,

we assess “the source and nature of the government’s liability” or

“the nature of the duty” allegedly breached. Id. at 690.

¶ 33 We defer to the district court’s factual findings unless they are

clearly erroneous. Smith, ¶ 35. Once factual issues are resolved,

we review questions of governmental immunity de novo, including

whether the CGIA bars a particular claim. Grand Junction I, ¶ 31.

3. Analysis

¶ 34 The Association has put forth multiple theories, below and on

appeal, to support its entitlement to an accounting. In its amended

complaint, for example, the Association contended that it would be

“virtually impossible” to accurately calculate the “premiums and

benefits owed” to its members or “the damages [the Association]

seek[s] to recover” without an accounting. Under this theory,

however, the Association’s accounting claim is merely derivative of

its other claims for damages that the district court has already

dismissed under the CGIA. See Brown Grp., 182 P.3d at 691-92

16 (holding declaratory judgment claim was barred under the CGIA

because it was “wholly derivative” of the plaintiff’s other claims that

could lie in tort). Thus, to the extent the Association continues to

press this theory on appeal, we conclude the CGIA bars the

accounting claim.

¶ 35 The Association also raises two statutory-based theories to

support its asserted “stand-alone” accounting claim. It first

contends that the Colorado Wage Claim Act, sections 8-4-101 to

-127, C.R.S. 2025, requires that the City provide it with an

accounting. But the Association rightly conceded below that the

Colorado Wage Claim Act doesn’t apply in this case because the

City doesn’t constitute an employer under the Act. See § 8-4-101(6)

(excluding cities, counties, municipal corporations, and quasi-

municipal corporations from the definition of “[e]mployer”). Given

the Association’s concession, we fail to see how the Colorado Wage

Claim Act supports its accounting claim.

¶ 36 The Association also asserts that the Colorado Open Records

Act (CORA), sections 24-72-200.1 to -205.5, C.R.S. 2025, supports

its accounting claim and that the City has largely ignored its CORA

requests for information. Under CORA, however, the only relief a

17 court can provide the Association is an order directing the records

custodian to permit inspection of the relevant records. See § 24-72-

204(5)(b), C.R.S. 2025. The statute doesn’t empower a court to

order the City to hire a third party to create and provide “a complete

accounting for the RHP since its inception,” as the Association

requested in its amended complaint. See Mountain-Plains Inv. Corp.

v. Parker Jordan Metro. Dist., 2013 COA 123, ¶ 35 (explaining that

CORA’s purpose “is not to disclose information beyond that kept by

the government”). Moreover, the Association didn’t seek inspection

of the City’s records under CORA; it merely alleged that the City

had largely ignored its prior CORA requests.

¶ 37 Finally, the Association contends that defendants breached

some unidentified duty by not making “all RHP records available for

inspection,” independent of the records’ utility in calculating

damages in its lawsuit. But any remaining right to those records or

to an accounting would arise “from the breach of a general duty of

care.” Brown Grp., 182 P.3d at 691; see also Grand Junction I, ¶ 35

(concluding the Association’s breach of contract claim was

“premised on allegations of misrepresentation and fraud”). Despite

asserting various contractual claims against defendants, the

18 Association hasn’t identified any contractual provision entitling it to

an accounting.

¶ 38 In short, the Association’s theories supporting its accounting

claim all arise from a general duty of care rather than a contractual

provision or a distinctly nontortious statutorily imposed duty. See

Brown Grp., 182 P.3d at 690. As a result, we conclude the CGIA

bars the Association’s accounting claim because it lies in tort.

¶ 39 For two reasons, we aren’t convinced otherwise by the

Association’s argument that its accounting claim is an independent

equitable claim, not simply a derivative claim to aid in calculating

damages. First, the supreme court has made clear that claims for

equitable relief aren’t insulated from dismissal under the CGIA. See

Brown Grp., 182 P.3d at 691 (“[W]e have never suggested that

claims for relief developed and historically administered by courts of

chancery or equity, rather than courts of law, necessarily fall

outside the coverage of the [CGIA].”).

¶ 40 Second, as we’ve shown above, the Association hasn’t

identified any theory — beyond the duties defendants allegedly

breached underlying its claims that have already been dismissed

under the CGIA — that would entitle it to equitable relief in the

19 form of an accounting. To the contrary, the Association’s

allegations confirm that the primary, if not sole, purpose of its

requested accounting is to accurately calculate the compensation

owed to its members pursuant to claims that have already been

dismissed under the CGIA. Cf. Upper Platte & Beaver Canal Co. v.

Riverview Commons Gen. Improvement Dist., 250 P.3d 711, 716

(Colo. App. 2010) (explaining that equitable relief that is

“noncompensatory” in nature may not be barred under the CGIA).

Put differently, the Association’s claim for an accounting, even if

equitable in nature, is “premised upon, and could succeed only

upon a demonstration of,” defendants’ liability for claims that are

barred under the CGIA. Brown Grp., 182 P.3d at 691.

¶ 41 Accordingly, we conclude that the Association’s accounting

claim is barred under the CGIA. We therefore reverse the district

court’s clarification order and reconsideration order and remand the

case for the district court to dismiss the accounting claim.

C. Attorney Fees and Costs

¶ 42 Defendants also seek reversal of the district court’s order

denying their request for attorney fees and costs. As to attorney

fees, they argue that (1) the district court has already dismissed all

20 claims against the individual defendants, entitling them to their

attorney fees under section 13-17-201, and (2) the City is entitled to

its attorney fees if we reverse the district court’s orders declining to

dismiss the Association’s accounting claim — the sole remaining

claim in this case. Because we conclude that all defendants are

entitled to their reasonable attorney fees, we need not address these

contentions separately.4

¶ 43 Though we generally review a district court’s decision to award

attorney fees for an abuse of discretion, we review de novo whether

attorney fees are recoverable at all. Del Valle v. Cal. Cas. Indem.

Exch., 2022 COA 138, ¶ 24. Whether a statute mandates an award

of attorney fees is a question of statutory interpretation that we also

review de novo. Crandall v. City & County of Denver, 238 P.3d 659,

661 (Colo. 2010). In interpreting an attorney fees statute, we apply

the same principles of statutory construction as recited above,

supra Part II.A.1.

4 Given our conclusion, we also need not address the Association’s

contention that defendants didn’t preserve their argument that the individual defendants are entitled to their reasonable attorney fees regardless of the outcome of this appeal.

21 ¶ 44 Section 13-17-201 provides for a mandatory award of attorney

fees to the defendant when a court dismisses a tort action under

Rule 12(b) before trial. Gagne v. Gagne, 2014 COA 127, ¶¶ 73-74.

The statute states, in pertinent part:

In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other persons, where any such action is dismissed on motion of the defendant prior to trial under [R]ule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action.

§ 13-17-201(1).

¶ 45 When a plaintiff pleads a mix of both tort and nontort claims,

a prevailing defendant is entitled to recover attorney fees under the

statute if “the essence of the action was one in tort.” Luskin

Daughters 1996 Tr. for Benefit of Ackerman v. Young, 2019 CO 74,

¶ 22 (citation omitted). We determine, as a matter of law, whether

the essence of the action was one in tort. Del Valle, ¶ 25.

¶ 46 After the district court dismisses the accounting claim on

remand, all ten of the Association’s claims will have been

dismissed — four voluntarily by the Association and six by order of

the court in response to defendants’ requests under Rule 12(b). See

22 Crow v. Penrose-St. Francis Healthcare Sys., 262 P.3d 991, 998

(Colo. App. 2011) (a plaintiff seeking to avoid attorney fees liability

under section 13-17-201 must voluntarily dismiss all claims). Of

those ten, the Association expressly pleaded seven claims as

torts — civil theft, breach of fiduciary duty, fraudulent

misrepresentation, negligent misrepresentation of a material fact,

conversion of property, civil conspiracy to commit fraud, and

interference with the performance of a contract. In addition, the

division in Grand Junction I determined that two of the Association’s

other claims (breach of contract and unjust enrichment) were based

on allegations of fraud and misrepresentation. See Grand

Junction I, ¶¶ 35-36, 47. We have similarly concluded that the

Association’s final claim, the accounting claim, was premised on

claims that lie in tort or could lie in tort. We therefore have little

difficulty concluding that the essence of the Association’s action

sounded in tort. See Luskin Daughters, ¶¶ 21-23.

¶ 47 We aren’t persuaded otherwise by the Association’s reliance on

Robinson v. Colorado State Lottery Division, 179 P.3d 998, 1010

(Colo. 2008). In Robinson, the supreme court held that section 13-

17-201 didn’t authorize an award of attorney fees to the government

23 when the plaintiff pleaded only contract claims, even though the

contract claims were barred by the CGIA. Id. The supreme court

explained that the statute wasn’t “intended to hinder the filing of

contract claims where the plaintiff could have alternatively pleaded

claims in tort.” Id. But here, unlike Robinson, the Association did

plead most of its claims as torts. Moreover, Robinson predates the

“essence of the action” analysis required by Luskin Daughters for

actions that present a mix of tort and nontort claims. 2019 CO 74,

¶ 22 (citation omitted).

¶ 48 Accordingly, we reverse the district court’s order denying

defendants’ motion for attorney fees and remand the case to the

district court to determine the amount of such fees.

¶ 49 Finally, we note that the district court didn’t rule on

defendants’ request for litigation costs under C.R.C.P. 54(b)

following the remand in Grand Junction I but rather addressed only

defendants’ request for attorney fees. On remand, the court should

resolve defendants’ outstanding request for costs.

III. Disposition

¶ 50 We reverse the district court’s orders declining to dismiss the

accounting claim and its order denying defendants’ motion for

24 attorney fees and costs. We remand the case to the district court

with directions to (1) dismiss the accounting claim; (2) determine

and award defendants their reasonable attorney fees; and

(3) resolve defendants’ request for costs.

JUDGE FOX and JUDGE KUHN concur.