23CA2060 Molina v Cahill 11-21-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2060 Fremont County District Court No. 23CV1025 Honorable Lynette M. Wenner, Judge
Daniel Emilio Molina,
Plaintiff-Appellant,
v.
William Cahill,
Defendant-Appellee.
APPEAL DISMISSED IN PART, JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE GROVE Freyre and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 21, 2024
Daniel Emilio Molina, Pro Se
William Cahill, Pro Se ¶1 Plaintiff, Daniel Emilio Molina, appeals the district court’s
judgment granting the motion to dismiss filed by defendant, William
Cahill, and awarding Cahill attorney fees under section 13-17-
201(1), C.R.S. 2024. We affirm the district court’s dismissal of four
of Molina’s claims — breach of contract, unjust enrichment,
tortious interference with contractual relations, and declaratory
judgment — based on a lack of subject matter jurisdiction,
although we conclude that those claims should not have been
dismissed with prejudice. With respect to Molina’s fifth claim —
intentional infliction of emotional distress (IIED) — we affirm the
district court’s dismissal with prejudice. And because it is
premature in the absence of a final appealable order, we dismiss
Molina’s appeal of the district court’s order granting Cahill’s request
for a fee award.
I. Background
¶2 We draw the following factual background from the record on
appeal, including the allegations in Molina’s complaint.
¶3 In December 2016, Cahill agreed to sell a parcel of land to
Hotwire H. Ranch, LLC (Hotwire) via an installment land contract.
The parties to the contract, which had a ten-year payment schedule
1 and a sale price of $95,000, were Cahill and Hotwire. Hotwire is a
limited liability company (LLC) solely owned by Molina, who is also
the LLC’s only member. Separately, Molina Management LTD
(Molina Management) — which is also an LLC — reached
agreements to receive monthly rent from tenants residing on the
parcel of land. As is true for Hotwire, Molina is the sole owner and
only member of Molina Management.
¶4 In February 2023, Cahill told Molina that his health was
deteriorating and that he might die before Molina finished making
installment payments under the contract. Cahill also told Molina
that his family had “pushed back when [he] mentioned to them”
that he planned on sending Molina a quitclaim deed to the property
when the payments were complete. Negotiations ensued, with
Cahill offering to buy out Molina’s interest in the land (for far less
than the amount Molina had already paid under the contract) and
Molina offering to pay off the contract’s remaining balance in
exchange for a warranty deed. In April 2023, Cahill informed
Molina that he believed the “contract [was] broken” and that he was
unwilling “to provide a bill of sale or a warranty deed.” Cahill
indicated they may need to “go before a judge.”
2 ¶5 Molina, acting in his personal capacity, filed suit against
Cahill and asserted the following claims for relief: (1) breach of the
installment land contract; (2) failure to comply with requirements
for escrow agent designation and written notice filing under section
38-35-126(3), C.R.S. 2024; (3) unjust enrichment; (4) tortious
interference with the contract between Molina Management and its
tenants; and (5) IIED.
¶6 Cahill moved to dismiss Molina’s first four claims under
C.R.C.P. 12(b)(1), arguing that Molina lacked standing in his
personal capacity to sue Cahill for Cahill’s alleged conduct against
the interests of Hotwire and Molina Management. Cahill
emphasized that Molina “was never a party to either the [c]ontract
or the [l]ease in his individual capacity.” Additionally, Cahill moved
to dismiss Molina’s claim for IIED under C.R.C.P. 12(b)(5) because
Molina failed to state a claim upon which relief could be granted.
Specifically, Cahill argued that “the mere fact that [Cahill] informed
[Molina] that he would not agree to [Molina]’s request to pay the
remaining balance of the contract price in exchange for the
warranty deed . . . in no conceivable way rises to the level of
outrageousness and intolerableness [required] to sustain” the IIED
3 claim. Moreover, Cahill argued that Molina’s IIED claim was
precluded by the economic loss rule (which we describe below).
¶7 The district court granted the motion to dismiss. Regarding
Molina’s first four claims, the court explained that Hotwire and
Molina Management, not Molina, were the parties to the relevant
contracts, that Molina’s interest in the contracts was limited to his
share of profits and losses and the right to receive distributions of
company assets, and that he had no right to demand and receive
distributions from the companies in any form other than cash. In
addition, because both entities are LLCs, the court concluded that
they could not “function . . . as extensions of [Molina] in his
personal capacity” and that, as a result, they needed to be
represented by counsel “unless the necessary statutory
requirements are satisfied.” See § 13-1-127(1)(a), (2), C.R.S. 2024.
The court also considered and rejected Molina’s argument that he
should be permitted to proceed in his individual capacity by relying
on agreements that purported to assign Hotwire’s installment land
contract and Molina Management’s lease to Molina. The court
specifically found that the agreements were invalid and failed to
transfer to Molina either entity’s right to proceed in the litigation.
4 ¶8 Turning to Molina’s IIED claim, the district court reasoned
that the claim was precluded by the economic loss rule because
Molina failed to “establish[] that [Cahill] had any independent duty
to [Molina].” And because Cahill “had no duty to prevent [Molina]
from experiencing emotional distress or [physical symptoms] as the
result of bad news or uncertainty,” it followed that Molina’s IIED
claim was “intertwined inextricably with his claim that [Cahill]
breached the [c]ontract.” In any event, the district court found,
nothing in the pleadings showed that “the alleged conduct [wa]s so
outrageous and extreme in degree as to support the claim as a
matter of law.”
¶9 The district court dismissed Molina’s complaint “in its entirety
with prejudice” and awarded attorney fees pursuant to section 13-
17-201(1). The court did not, however, reduce its fee award to a
sum certain before Molina filed his notice of appeal.
¶ 10 Molina filed a motion to reconsider, citing C.R.C.P. 121,
section 1-15(11). In the motion, he argued for the first time that
(1) amendments he made to the assignment agreements and to the
LLCs’ operating agreements following the district court’s dismissal
order resolved the agreements’ previous shortcomings; and (2) in
5 order to remedy his lack of standing to personally sue under
contracts to which he was not a party, the district court should
“pierc[e] the corporate veil of his LLCs and tak[e] the stance that
[Molina] is the alter ego of the LLCs.”
¶ 11 The district court denied Molina’s motion to reconsider. It
noted at the outset that, because its dismissal order was not
interlocutory, the motion was cognizable under C.R.C.P. 59 or 60
rather than C.R.C.P. 121, section 1-15(11). The district court then
considered Molina’s motion under both rules. Applying C.R.C.P.
59, the court concluded that the only potential ground for relief was
the discovery of new evidence, in the form of the amended
assignment agreements and operating agreements. But because
these agreements were prepared after the case was dismissed, the
court concluded they were not newly discovered evidence.
¶ 12 As for C.R.C.P. 60(b)(1), the court observed that Molina failed
to argue for any of the potential grounds for relief specified by that
rule, “relying instead on dubious claims of new evidence, objections
to the legal reasoning of the [c]ourt’s [o]rder, and arguments
regarding . . . ‘clear error,’ manifest injustice, and the need to
decide this matter on the merits.”
6 II. Preservation
¶ 13 At the outset, we note that Molina failed to preserve three of
his appellate contentions for appeal. Preservation is a threshold
question; we do not review issues that are insufficiently preserved.
Rinker v. Colina-Lee, 2019 COA 45, ¶ 22. Generally, to preserve an
issue for appeal, a party “must make a timely and specific objection
or request for relief in the district court.” Id. at ¶ 25. Thus,
arguments raised for the first time on appeal are not preserved. See
Keith v. Kinney, 140 P.3d 141, 153 (Colo. App. 2005).
¶ 14 Likewise, arguments first made in a post-trial motion “are too
late and, consequently, are deemed waived for purposes of appeal.”
Briargate at Seventeenth Ave. Owners Ass’n v. Nelson, 2021 COA
78M, ¶ 66; see also Denny Constr., Inc. v. City & Cnty. of Denver,
170 P.3d 733, 740 (Colo. App. 2007) (arguments presented for the
first time in a C.R.C.P. 59 motion are insufficient for preservation
on appeal), rev’d on other grounds, 199 P.3d 742 (Colo. 2009); Ortiz
v. Valdez, 971 P.2d 1076, 1079-80 (Colo. App. 1998); Landmark
Towers Ass’n v. UMB Bank, N.A., 2018 COA 100, ¶ 45. And where
an argument raised during earlier proceedings differs from an
argument raised in a motion for post-trial relief, the previously
7 raised argument is insufficient to preserve the post-trial argument
for appeal. See Fid. Nat’l Title Co. v. First Am. Title Ins. Co., 2013
COA 80, ¶ 51.
A. Piercing the Corporate Veil
¶ 15 First, Molina contends that the district court erroneously
refused to pierce the corporate veil of Hotwire and Molina
Management by failing to find that he was the alter ego of these
entities with standing to sue on their behalf — a concept known as
“[i]nsider reverse veil-piercing.” McKay v. Longman, 211 A.3d 20, 46
(Conn. 2019). Because Molina raised this argument for the first
time in his motion to reconsider, however, we conclude that he did
not properly preserve it and do not consider it further. See Nelson,
¶ 66.
B. Dismissal of Tortious Interference with Contract Claim
¶ 16 Second, Molina contends that the district court erred by
dismissing his claim of tortious interference with contract.
Specifically, he asserts that the district court should have allowed
him to represent the interests of the two LLCs with respect to this
claim because the amount of damages that he sought for tortious
interference — $12,000 — fell below the $15,000 threshold set forth
8 in section 13-1-127(2)(a) (“[A] closely held entity may be represented
before any court of record . . . by an officer of such closely held
entity if,” among other things, “[t]he amount at issue in the
controversy or matter before the court or agency does not exceed
fifteen thousand dollars.”).
¶ 17 Once again, irrespective of the merits of this argument, Molina
raised it for the first time in his motion to reconsider; it is therefore
waived for purposes of appeal.1 See Nelson, ¶ 66.
C. Constitutionality Challenge
¶ 18 Third, Molina asserts that section 13-1-127(2)(a) — which
establishes several exceptions to the general rule that entities must
be represented by counsel — violates due process and equal
protection under both the United States and Colorado
Constitutions. However, Molina did not raise this argument in the
1 We acknowledge that in paragraph eighty-eight of his amended
complaint (which appears in the “Factual Allegations” section), Molina alleged that he “is incurring a loss of $12,000 due to William Cahill’s refusal to honor the terms of the land installment contract at issue in this case.” But nothing in the tortious interference claim itself suggests that Molina seeks only that amount. To the contrary, Molina’s tortious interference claim seeks “pecuniary damages,” “consequential damages,” “emotional distress damages,” and “punitive damages” without suggesting any specific limitation on the amounts sought.
9 trial court, and we do not consider arguments raised for the first
time on appeal. See Keith, 140 P.3d at 153.
III. Molina’s Motion to Reconsider
A. The District Court Addressed Molina’s Motion on the Merits
¶ 19 Molina contends that the district court erred by “refusing to
consider” his motion to reconsider simply because the motion
incorrectly referenced C.R.C.P. 121 rather than C.R.C.P. 59 or 60.
As we understand Molina’s argument, he maintains that the district
court rejected his motion on this technical ground despite his
clarification in subsequent briefing that his motion was in fact
made pursuant to C.R.C.P. 59 and 60. His argument, however, is
at odds with the record. As we have already discussed, not only did
the district court consider the merits of Molina’s motion, but it
specifically analyzed his arguments under C.R.C.P. 59 and 60,
denying the motion only after finding that relief was not warranted
under either rule. To the extent that Molina raises new arguments
on appeal about why he should have been granted relief under
C.R.C.P. 59 or 60, we decline to consider them. See Keith, 140 P.3d
at 153.
B. The Amended Assignment Agreements
10 ¶ 20 Molina also argues that the district court erred by “not
recognizing the effect of” the assignment agreements that were
amended after the district court’s dismissal order and attached as
“new evidence” to his post-trial motion. As best we can tell, Molina
takes issue with the district court’s refusal to give effect to the
amended agreements in denying his motion for reconsideration.
¶ 21 In its order, the district court explained that because the
amended agreements were prepared and signed by Molina after the
dismissal order was entered, they were not newly discovered
evidence potentially justifying reconsideration of that order. To rule
otherwise, the court reasoned, “would allow litigants to create their
own new evidence after the fact.” Alternatively, the court stated, if
the agreements had been prepared and signed by Molina before the
dismissal order, then Molina “failed to explain why he was not able
to produce” them before it ruled on the motion to dismiss.
¶ 22 We perceive no abuse of discretion in this ruling. See Zolman
v. Pinnacol Assurance, 261 P.3d 490, 502 (Colo. App. 2011) (“A trial
court has considerable discretion in ruling on a motion for new
trial, and its ruling will not be disturbed absent a clear showing of
an abuse of discretion.”).
11 ¶ 23 To succeed on a C.R.C.P. 59 motion grounded on newly
discovered evidence, the moving party must establish that the new
evidence could not have been discovered through the exercise of
reasonable diligence, was material, and would probably change the
result. Aspen Skiing Co. v. Peer, 804 P.2d 166, 172 (Colo. 1991).
The motion must be supported by an affidavit. C.R.C.P. 59(d)(6);
see also People in Interest of E.H., 837 P.2d 284, 288 (Colo. App.
1992). The failure to establish any one of the factors outlined in the
rule requires the denial of the motion. Peer, 804 P.2d at 172.
¶ 24 Here, even assuming that the updated agreements could be
considered “newly discovered” evidence as contemplated by C.R.C.P.
59(d), Molina’s motion did not explain why they could not have been
previously discovered through the exercise of reasonable diligence,
nor did he comply with the rule’s procedural requirement that he do
so via an affidavit. Given these deficiencies, the district court acted
within its discretion when it declined to grant Molina’s request for
post-trial relief.
IV. Dismissal of IIED Claim
¶ 25 Molina next alleges that the district court erroneously
dismissed his IIED claim. Specifically, he maintains that Cahill
12 owed him an independent duty of care and that Cahill’s conduct
was sufficiently outrageous to sustain this claim. We disagree.
A. Standard of Review and Applicable Law
¶ 26 We review de novo a district court’s ruling on a motion to
dismiss. Patterson v. James, 2018 COA 173, ¶ 16. We apply the
same standards as the district court, accepting the complaint’s
factual allegations as true and viewing those allegations in the light
most favorable to the plaintiff. Id. A court may dismiss a complaint
under C.R.C.P. 12(b)(5) if the factual allegations do not, as a matter
of law, support a claim for relief. Froid v. Zacheis, 2021 COA 74,
¶ 17.
¶ 27 To state a claim for intentional infliction of emotional distress,
a plaintiff must allege facts that, if proven, would establish that
(1) the defendant engaged in extreme and outrageous conduct;
(2) the defendant did so recklessly or with intent of causing the
plaintiff severe emotional distress; and (3) the defendant’s conduct
caused the plaintiff severe emotional distress. Culpepper v. Pearl St.
Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994). This theory creates
liability in only very limited circumstances, where the conduct was
“so outrageous in character, and so extreme in degree, as to go
13 beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo. 1988)
(quoting Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970)).
¶ 28 Although the question whether conduct is outrageous is
generally one of fact to be determined by a jury, it is first the
responsibility of a court to determine whether reasonable persons
could differ on the question. Culpepper, 877 P.2d at 883; see also
Coors Brewing Co. v. Floyd, 978 P.2d 663, 665-66 (Colo. 1999)
(affirming trial court’s order granting motion to dismiss outrageous
conduct claim “[a]s a matter of law” because “no reasonable person
could find” defendant’s actions “arose to the high level of
outrageousness required by our case law”); First Nat’l Bank in
Lamar v. Collins, 616 P.2d 154, 155-56 (Colo. 1980).
¶ 29 And “[w]hether the economic loss rule precludes a particular
claim raises a legal issue subject to de novo appellate review.”
Dream Finders Homes LLC v. Weyerhaeuser NR Co., 2021 COA 143,
¶ 35 (quoting In re Estate of Gattis, 2013 COA 145, ¶ 10).
¶ 30 “Broadly speaking, the economic loss rule is intended to
maintain the boundary between contract law and tort law.” Town of
14 Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1259 (Colo. 2000). To
identify whether contract or tort law applies to a particular claim,
courts look to the source of the duty that the defendant allegedly
breached. Id. at 1262. “A breach of a duty which arises under the
provisions of a contract between the parties must be redressed
under contract, and a tort action will not lie.” Id. (citation omitted).
¶ 31 A claim “based on a recognized independent duty of care” does
not fall within the scope of the rule. Id. at 1263. That exception
applies when “special relationships . . . automatically trigger an
independent duty of care.” Id. (noting that some relationships, such
as the attorney-client, physician-patient, and insurer-insured
relationships, “by their nature automatically trigger an independent
duty of care that supports a tort action even when the parties have
entered into a contractual relationship”). Thus, a plaintiff may
assert a tort action if the alleged breach of contract also implicates
an independent duty of care. Id.
B. Analysis
¶ 32 As an initial matter, both parties assert that this issue is
preserved, and we agree.
15 ¶ 33 In its dismissal order, the district court provided two reasons
for dismissing Molina’s IIED claim: (1) the economic loss rule
prohibited the claim because Molina failed to show that Cahill owed
him an independent duty of care, and (2) the conduct alleged by
Molina was not “so outrageous and extreme in degree as to support
the claim as a matter of law.”
¶ 34 On appeal, Molina argues that Cahill did in fact owe him a
duty of care independent from their contract, and, as a result, the
economic loss rule does not apply. However, he cites no case law,
and we are aware of none, stating that his relationship with Cahill
as a purchaser of land triggers a “recognized independent duty of
care.” Town of Alma, 10 P.3d at 1263. Rather, Molina appears to
argue that we should recognize a new independent duty of care “in
light of [Cahill’s] promises that he and his family could be trusted”
and because Molina is younger than Cahill and had less experience
with land purchases at the time of their contract. We conclude as a
matter of law that these circumstances alone would not establish
an independent duty of care sufficient to support Molina’s tort
claim.
16 ¶ 35 Molina also contends that Cahill’s conduct was sufficiently
outrageous to sustain his IIED claim because of his status as a
disabled combat veteran. However, our analysis of outrageousness
is focused not on the identity of the individual bringing an IIED
claim but instead on the nature of the alleged conduct; specifically,
we consider whether Cahill’s conduct was “so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Churchey, 759 P.2d at 1350
(quoting Rugg, 476 P.2d at 756). Like the district court, we cannot
conclude that the allegations that Cahill breached his contract with
Molina satisfy this high standard.
¶ 36 We discern no error by the district court in its dismissal of
Molina’s IIED claim.
V. Dismissal with Prejudice
¶ 37 Molina contends that the district court erred by dismissing
with prejudice the four claims that the district court found he had
no standing to bring (breach of contract, unjust enrichment,
tortious interference with contractual relations, and declaratory
17 judgment). Cahill concedes that the district court should have
dismissed these claims without prejudice. We agree.
¶ 38 A motion to dismiss for lack of standing is brought pursuant
to C.R.C.P. 12(b)(1) and impacts a court’s subject matter
jurisdiction. See Pueblo Sch. Dist. No. 60 v. Colo. High Sch. Activities
Ass’n, 30 P.3d 752, 753 (Colo. App. 2000) (“A court does not have
subject matter jurisdiction if a plaintiff lacks standing to invoke its
judicial power.”). And “[g]enerally, a dismissal for lack of
jurisdiction does not bar subsequent proceedings and, thus,
dismissal with prejudice is improper.” Woo v. El Paso Cnty. Sheriff’s
Off., 2020 COA 134, ¶ 29, aff’d, 2022 CO 56. “This principle
reflects the possibility that the plaintiff may be able to refile the
complaint (in the same court or another) and plead facts that cure
the jurisdictional defect.” Id.
¶ 39 We therefore remand the case with directions to amend the
judgment to reflect that the dismissal of Molina’s four non-IIED
claims is without prejudice.
VI. Attorney Fees Award
¶ 40 Molina also contends that the district court erred when it
determined that Cahill was entitled to attorney fees pursuant to
18 section 13-17-201. Although the district court has ruled that Cahill
is entitled to a fee award, it did not reduce its order to a sum
certain by awarding a specific amount of fees before Molina filed his
notice of appeal. Any fee award is therefore not ripe for appellate
review. Kreft v. Adolph Coors Co., 170 P.3d 854, 859 (Colo. App.
2007). We therefore must dismiss Molina’s appeal of the trial
court’s fee award as premature.2
VII. Appellate Attorney Fees
¶ 41 Cahill seeks an award of appellate attorney fees based on his
successful defense of the district court’s order dismissing Molina’s
complaint under C.R.C.P. 12(b). In contrast to the district court’s
award of fees under section 13-17-201, this issue is properly before
us. See Wark v. Bd. of Cnty. Comm’rs, 47 P.3d 711, 717 (Colo. App.
2002) (“A party who successfully defends . . . a dismissal order
2 Although we do not reach the merits of the district court’s award
of fees, we note that Cahill requested fees under section 13-17- 102(6), C.R.S. 2024, arguing that Molina knew or should have known “that his action was substantially frivolous or groundless.” The court, however, awarded fees under section 13-17-201, C.R.S. 2024. We conclude below that the fee-shifting provisions of section 13-17-201 do not apply to Molina’s complaint, and therefore deny Cahill’s request for appellate fees on that basis.
19 [subject to section 13-17-201] is also entitled to recover reasonable
attorney fees incurred on appeal.”).
¶ 42 For the reasons below, we decline to award Cahill his appellate
attorney fees.
A. Standard of Review
¶ 43 “Whether a statute,” such as section 13-17-201, “mandates an
award of costs or attorney fees is a question of statutory
interpretation and is thus a question of law we review de novo.”
Crandall v. City of Denver, 238 P.3d 659, 661 (Colo. 2010).
B. Section 13-17-201 does not Apply Because the “Essence” of Molina’s Case was a Contract Claim
¶ 44 As relevant to this case, section 13-17-201(1) states that, “[i]n
all actions brought as a result of . . . an injury to . . . property
occasioned by the tort of any other persons,” a defendant “shall
have judgment for his reasonable attorney fees in defending the
action,” if the action is dismissed on any ground pursuant to a
defendant’s C.R.C.P. 12(b) motion. Fee-shifting is mandatory under
this provision in cases involving the dismissal of a complaint that
asserts tort claims. Wark, 47 P.3d at 717.
20 ¶ 45 “When a plaintiff has pleaded both tort and non-tort claims,”
however, “a court must determine, as a matter of law, whether the
essence of the action was one in tort, in order to ascertain if section
13-17-201 applies.” Castro v. Lintz, 2014 COA 91, ¶ 16. To make
this determination, the court should
first apply the “predominance” test, assessing whether the “essence of the action” is tortious in nature (whether quantitatively by simple number of claims or based on a more qualitative view of the relative importance of the claims) or not. The [c]ourt would then turn to the question of whether [the] tort claims were asserted to unlock additional remedies only where the predominance test failed to yield a clear answer, such as when the tort- and non-tort claims are equal in number or significance.
Gagne v. Gagne, 2014 COA 127, ¶ 84 (citation omitted)). “[T]he
court should rely on the pleading party’s characterization of its
claims and should not consider what the party should or might
have pleaded.” Id. at ¶ 81.
¶ 46 Here, the “predominance test” described in Gagne yields a
clear answer: The “essence” of this case sounds in contract rather
than tort. All of Molina’s claims center on his allegation that Cahill
breached his agreement to sell the subject property to an entity
21 owned by Molina. Only two of the five claims sound in tort and
because both depend on the alleged breach of contract, they are in
our view less important to Molina’s case than his claim that the
contract was breached. Cf. CAMAS Colo., Inc. v. Bd. of Cnty.
Comm’rs, 36 P.3d 135, 138 (Colo. App. 2001) (“In determining
whether a claim is contractual or lies in tort, a court should
examine whether the claim and the duty allegedly breached arise
from the terms of the contract itself.”).
¶ 47 Because Molina’s lawsuit was prompted by Cahill’s alleged
breach of contract, and because his tort claims are ancillary to, and
dependent on, that alleged breach, the essence of the case is
contractual. The fee-shifting requirements of section 13-17-201
therefore do not apply, and we decline to grant Cahill’s request for
an award of appellate attorney fees.
VIII. Disposition
¶ 48 We dismiss the portion of the appeal challenging the district
court’s determination that Cahill is entitled to attorney fees and
deny Cahill’s request for an award of appellate attorney fees. We
affirm the dismissal of Molina’s complaint but reverse the district
court’s judgment to the extent that it dismissed with prejudice
22 Molina’s claims for breach of contract, unjust enrichment, tortious
interference with contractual relations, and for entry of a
declaratory judgment. We remand the case with instructions to the
district court to amend the judgment to reflect that those claims
were dismissed without prejudice.
JUDGE FREYRE and JUDGE LUM concur.