Kritzer v. Qwest

• Court: Colorado Court of Appeals
• Decided: May 29, 2025
• Docket: 24CA1165
• Status: Unpublished

Opinion

24CA1165 Kritzer v Qwest 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1165 Arapahoe County District Court No. 17CV32950 Honorable Elizabeth Beebe Volz, Judge

Stuart Kritzer and Janet Kritzer,

Plaintiffs-Appellants,

v.

Qwest Corporation,

Defendant-Appellee.

ORDER REVERSED

Division VI Opinion by JUDGE WELLING Kuhn and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025

Leventhal Puga Braley P.C., Jim Leventhal, Julia T. Thompson, Nathaniel E. Deakins, Denver, Colorado, for Plaintiffs-Appellants

Hall & Evans, LLC, Benton J. Barton, Theresa A. Vogel, Ethan E. Zweig, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiffs, Stuart and Janet Kritzer (collectively, the Kritzers),

appeal the trial court’s order awarding defendant, Qwest

Corporation, its attorney fees and costs. The trial court awarded

Qwest its attorney fees and costs based on it being the prevailing

party on a motion for summary judgment in which the trial court

dismissed all of the Kritzers’ claims against Qwest based on the

application of the Colorado Recreational Use Statute, sections 33-

41-101 to -106, C.R.S. 2024. See § 33-41-105.5, C.R.S. 2024 (“The

prevailing party in any civil action by a recreational user for

damages against a landowner who allows the use of the landowner’s

property for public recreational purposes shall recover the costs of

the action together with reasonable attorney fees as determined by

the court.”). Today, in a companion case, we reversed that

judgment. See Kritzer v. Qwest Corp., 2025 COA 54, ¶¶ 3, 57.

¶2 In this appeal, the Kritzers challenge both Qwest’s entitlement

to an award of costs and fees, as well the amount the court

awarded. Both parties, however, agree that if the underlying

judgment is reversed, the proper disposition of this appeal is to

reverse the award of fees and costs without considering the merits

of the court’s award. We agree that that is the proper disposition of

1 this appeal. See Bainbridge, Inc. v. Douglas Cnty. Bd. of Comm’rs,

55 P.3d 271, 273-74 (Colo. App. 2002) (“[W]hen an underlying

judgment is reversed, an award that is dependent on that judgment

for its validity is also necessarily reversed and becomes a nullity.”);

see also Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d

381, 396 (8th Cir. 1987) (“Since we have partially reversed the

underlying judgment, we reverse the award of attorney[] fees and

costs as well.”); Roe v. Roe, 535 P.3d 274, 293 (Nev. App. 2023) (“An

award of attorney fees and costs is appropriately vacated when a

portion of the underlying order is reversed.”). Accordingly, we

reverse the trial court’s award of attorney fees and costs.

JUDGE KUHN and JUDGE SCHUTZ concur.