24CA0614 Smart v Stropas 01-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0614 Adams County District Court No. 22CV30289 Honorable Christopher J. Munch, Judge
Samantha Smart and Derek Sweitzer,
Plaintiffs-Appellants,
v.
Stacie A. Stropas, Kenaniah D. Stropas, and Sheree L. Stropas,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE SCHOCK Freyre and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025
Pat Mellen Law, LLC, Patricia Ann Mellen, Denver, Colorado, for Plaintiffs- Appellants
Stacie A. Stropas, Pro Se
Kenaniah D. Stropas, Pro Se
Sheree L. Stropas, Pro Se ¶1 Plaintiffs, Samantha Smart and Derek Sweitzer, appeal the
judgment on their claims against defendants, Stacie A. Stropas,
Kenaniah D. Stropas, and Sheree L. Stropas. They argue that the
district court erred by (1) denying their fraud claim under the
economic loss rule; (2) declining to award certain damages;
(3) improperly calculating attorney fees and costs; (4) failing to
award prejudgment interest; and (5) dismissing their claims against
Sheree.1
¶2 We affirm the judgment with one exception. Because plaintiffs
are entitled to prejudgment interest, we remand the case to the
district court to correct the judgment to include that award.
I. Background
¶3 Stacie and Kenaniah, sister and brother, owned a townhome
for several years. In April 2021, they listed the home for sale. Days
later, plaintiffs made them an offer, which they accepted. The
parties entered into a standard form real estate sale contract.
¶4 As relevant to this case, the contract contained a
“Methamphetamine Disclosure,” which provided as follows:
1 Because defendants all share the same last name, we refer to
them by their first names, intending no disrespect in doing so.
1 If Seller knows that methamphetamine was ever manufactured, processed, cooked, disposed of, used or stored at the Property, Seller is required to disclose such fact. No disclosure is required if the Property was remediated in accordance with state standards and other requirements are fulfilled pursuant to § 25-18.5-102, C.R.S.[] Buyer further acknowledges that Buyer has the right to engage a certified hygienist or industrial hygienist to test whether the Property has ever been used as a methamphetamine laboratory. Buyer has the Right to Terminate under § 25.1, upon Seller’s receipt of Buyer’s written Notice to Terminate, notwithstanding any other provision of this Contract, based on Buyer’s test results that indicate the Property has been contaminated with methamphetamine, but has not been remediated to meet the standards established by rules of the State Board of Health promulgated pursuant to § 25-18.5-102, C.R.S. Buyer must promptly give written notice to Seller of the results of the test.
¶5 Stacie and Kenaniah also completed and signed a “Seller’s
Property Disclosure,” as required by the contract. The disclosure
included a provision that asked if the sellers had knowledge that
the property was “previously used as a methamphetamine
laboratory and not remediated to state standards.” That box was
not checked, indicating that the sellers had no such knowledge.
2 ¶6 The parties closed on the sale about a month later. Because
Kenaniah was out of state at the time, he appointed his mother,
Sheree, as his power of attorney to act for him in completing the
sale. Sheree signed the closing documents on Kenaniah’s behalf.
¶7 Plaintiffs began renovating the property before moving in. As
they were doing so, neighbors warned them that there may have
previously been methamphetamine at the property. They tested the
property and confirmed that the property was contaminated with
methamphetamine residue in excess of state regulatory levels.
¶8 Unbeknownst to plaintiffs, Stacie had regularly used
methamphetamine for approximately a year while she was living in
the home, though she claimed to have never brought
methamphetamine into the home. In addition, the father of Stacie’s
children and her on-and-off boyfriend was a methamphetamine
addict and was regularly at the property, though again, Stacie said
he did not use methamphetamine in the home. Stacie and
Kenaniah did not disclose any prior methamphetamine use or
storage at the property to plaintiffs at the time of the sale.
¶9 Upon learning of the methamphetamine contamination,
plaintiffs remediated the property. During the remediation,
3 plaintiffs rented an apartment in the same complex where they had
been living before purchasing the townhome. After several
additional rounds of testing, the property was cleared for habitation
in December 2021. But despite the successful remediation,
plaintiffs never moved into the townhome because they remained
concerned that the presence of methamphetamine — though now
below state standards — could cause health issues for Sweitzer,
who had leukemia. Plaintiffs sold the property in April 2022 for
approximately $83,000 more than their purchase price.
¶ 10 Plaintiffs sued defendants for breach of contract and fraud,
alleging that defendants were aware of, and failed to disclose, the
presence and use of methamphetamine on the property.2
¶ 11 The case went to a bench trial, at which defendants
represented themselves. After trial, the district court dismissed the
claims against Sheree, explaining that it had “heard no evidence
that [she] did anything wrong.” The court then issued an oral
ruling in favor of plaintiffs on their breach of contract claim against
2 Plaintiffs also asserted a claim for breach of the implied covenant
of good faith and fair dealing, but that claim was dismissed before trial and is not at issue in this appeal.
4 Stacie and Kenaniah. It found that the most likely source of the
contamination was Stacie’s use of methamphetamine while she was
living in the home, that Stacie had reason to know of the presence
of methamphetamine in the home, and that she and Kenaniah
breached the contract by failing to make that disclosure. But the
court ruled against plaintiffs on their fraud claim, finding that the
parties’ relationship arose solely from their contract.
¶ 12 The court orally awarded plaintiffs $71,123 in damages, plus
“interest at the statutory rate from the date of closing on the
contract.” Those damages consisted of (1) $44,720 for the cost of
remediation; and (2) $26,403 for the rent and application fee
plaintiffs paid for their apartment from the date of the initial testing
until the property was cleared for habitation, plus two additional
months to account for a notice period for terminating the lease.
¶ 13 The court also awarded plaintiffs reasonable attorney fees and
costs under the contract. In doing so, the court explained that if
the claim for attorney fees and costs did not exceed forty percent of
the damages award, the court would likely find it reasonable. The
court said it would not expect fees and costs to exceed that amount.
5 ¶ 14 At the district court’s request, plaintiffs submitted a proposed
findings and judgment, which tracked the court’s oral ruling. They
also filed an affidavit for attorney fees and costs, requesting a total
of $55,016 — $45,846 in attorney fees and $9,170 in costs.
¶ 15 The district court adopted the proposed findings in part in a
written order that also addressed attorney fees and costs. The
court said it was “not inclined to find” plaintiffs’ request for attorney
fees and costs reasonable for what was a “relatively straightforward
case against pro se parties.” It instead awarded plaintiffs $30,000
and entered judgment “in the amount of $71,123 for proven
damages and $30,000 for reasonable attorney[] fees and costs, with
interest at the statutory rate from the date of the verdict until paid.”
The court allowed either party to contest the award of fees and costs
by requesting a hearing within twenty-one days. No party did so.
¶ 16 Plaintiffs then filed a C.R.C.P. 59 motion, challenging the
denial of their fraud claim, the damages award, and the award of
attorney fees and costs. The district court denied the motion.
II. Fraud Claim
¶ 17 Plaintiffs first argue that the district court erred by rejecting
their fraud claim under the economic loss rule. Relying on In re
6 Estate of Gattis, 2013 COA 145, ¶ 17, they assert that defendants’
duty to disclose known latent defects in the home was independent
of the parties’ contract. Because the contract explicitly addressed
the sellers’ obligation to disclose methamphetamine, we disagree.
A. Economic Loss Rule
¶ 18 The economic loss rule provides that “a party suffering only
economic loss from the breach of an express or implied contractual
duty may not assert a tort claim for such a breach absent an
independent duty of care under tort law.” Town of Alma v. AZCO
Constr., Inc., 10 P.3d 1256, 1264 (Colo. 2000). The basic purpose of
this rule is to “maintain a distinction between contract law, where
obligations arise from promises made between parties, and tort law,
where obligations arise from duties imposed by law without regard
to any agreement or contract.” Mid-Century Ins. Co. v. HIVE Constr.,
Inc., 2023 COA 25, ¶ 26 (cert. granted in part Feb. 5, 2024); see also
BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 72 (Colo. 2004).
¶ 19 The “essential difference” between a tort claim and a contract
claim is the source of the duty alleged to have been breached.
BRW, 99 P.3d at 72. If the duty arises under the provisions of a
contract, the breach must be redressed under contract law, and the
7 economic loss rule applies. S K Peightal Eng’rs, LTD v. Mid Valley
Real Est. Sols. V, LLC, 2015 CO 7, ¶ 7. If the duty arises
independently of any contractual duties, a tort claim will lie. Id.
¶ 20 In determining whether a duty is independent of the parties’
contract, we consider whether (1) the relief sought in tort is the
same as the contractual relief; (2) there is a recognized common law
duty of care in tort; and (3) the tort duty differs in any way from the
contractual duty. BRW, 99 P.3d at 74. If these factors “establish
that a duty of care is ‘memorialized’ in the parties’ contract — i.e.,
the duty is contained within, or imposed under, the contract — it
necessarily follows that the plaintiff has failed to show any duty
independent of the contract.” City of Aspen v. Burlingame Ranch II
Condo. Owners Ass’n, 2024 CO 46, ¶ 43. Thus, “[e]ven if the duty
allegedly breached is separately recognized under tort law, it is not
‘independent’ of the contract . . . if it addresses the same obligations
created by the contract.” Mid-Century Ins. Co., ¶ 28.
¶ 21 We review de novo whether the economic loss rule bars a
plaintiff’s tort claim. Id.
8 B. Analysis
¶ 22 In Gattis, the division held that the economic loss rule did not
bar the plaintiff’s nondisclosure tort claim for two reasons. First, it
concluded that “apart from any contractual obligation, home sellers
owe home buyers an independent duty to disclose latent defects of
which they are aware.” Gattis, ¶ 2. Second, that independent duty
was not subsumed by the disclosure provisions in the parties’
contract in that case. Id.; see also id. at ¶ 19 (recognizing that
“contracts may completely subsume the common law duties”).
¶ 23 Accepting Gattis’s first holding, it is distinguishable on its
second because Stacie and Kenaniah’s duty to disclose
methamphetamine was explicitly set forth in the parties’ contract.
In Gattis, although the seller’s property disclosure referred generally
to the defect at issue, the contract “d[id] not set out a standard of
care or incorporate one by reference.” Id. at ¶ 23. Nor did the
disclosure form require the sellers to disclose all of the material
facts that the court found should have been disclosed. Id. at ¶ 24.
¶ 24 In contrast, the parties’ contract in this case detailed precisely
what the sellers were obligated to disclose concerning
methamphetamine — namely, if they knew that methamphetamine
9 “was ever manufactured, processed, cooked, disposed of, used or
stored at the Property.” It also made clear when disclosure was not
required, i.e., “if the Property was remediated in accordance with
state standards and other requirements are fulfilled pursuant to
[statute].” Cf. id. at ¶ 23 (noting that the contract did not “limit[]
the parties’ rights and liabilities to the categories of information
specified in the [disclosure]”). Plaintiffs have not shown how the
independent tort duty recognized in Gattis “differs in any way from
the contractual duty.” BRW, 99 P.3d 74; see also Dream Finders
Homes LLC v. Weyerhaeuser NR Co., 2021 COA 143, ¶ 69 (holding
that where “concurrent contractual and tort duties not to engage in
fraud . . . overlapped,” economic loss rule barred tort claim).
¶ 25 Also unlike Gattis, the parties’ contract included a specific
remedy for breach of the methamphetamine disclosure provision:
Buyer has the Right to Terminate under § 25.1, upon Seller’s receipt of Buyer’s written Notice to Terminate, notwithstanding any other provision of this Contract, based on Buyer’s test results that indicate the Property has been contaminated with methamphetamine, but has not been remediated to meet the standards established by rules of the State Board of Health promulgated pursuant to § 25-18.5-102,
10 C.R.S. Buyer must promptly give written notice to Seller of the results of the test.
The contract in Gattis “provide[d] only general remedies” and
prescribed no remedy for nondisclosure. Gattis, ¶ 23.
¶ 26 We note that a division of this court has held that “in most
instances the economic loss rule will not bar intentional tort
claims.” McWhinney Centerra Lifestyle Ctr. LLC v. Poag & McEwen
Lifestyle Ctrs.-Centerra LLC, 2021 COA 2, ¶ 67; see also Bermel v.
BlueRadios, Inc., 2019 CO 31, ¶ 20 n.6 (“[T]he economic loss rule
generally should not be available to shield intentional tortfeasors
from liability for misconduct that happens also to breach a
contractual obligation.”). But plaintiffs do not argue, beyond Gattis,
that intentional tort claims categorically fall outside the economic
loss rule. So we need not choose a side in the division split on that
issue. Compare McWhinney, ¶¶ 73-75, with Dream Finders, ¶¶ 63-
64; see also Galvan v. People, 2020 CO 82, ¶ 45 (noting that
appellate courts must “adhere to the party presentation principle,
which relies on the parties to frame the issues to be decided”). In
any event, even McWhinney did not “reject the factors outlined in
11 BRW to determine whether a duty allegedly breached is
independent of the parties’ contract.” Mid-Century Ins. Co., ¶ 40.
¶ 27 Thus, because plaintiffs’ fraud claim is based on a duty
specifically contained within the relevant contract, that duty is not
independent of the contract, and the economic loss rule bars the
claim. See City of Aspen, ¶ 43. Because we affirm the denial of this
claim, we need not address plaintiffs’ arguments that they were
entitled to noneconomic damages and attorney fees on the claim.
III. Damages
¶ 28 Plaintiffs next contend that the district court erred by failing to
award them certain categories of damages. We disagree.
A. Standard of Review
¶ 29 The district court has broad discretion to determine the
amount of damages in a bench trial. McDonald’s Corp. v.
Brentwood Ctr., Ltd., 942 P.2d 1308, 1311 (Colo. App. 1997). The
proper measure of damages is a question of law that we review de
novo. Kroesen v. Shenandoah Homeowners Ass’n, 2020 COA 31,
¶ 56. But “the fact finder has the sole prerogative to assess the
amount of damages and its award will not be set aside unless it is
manifestly and clearly erroneous.” Id. (citation omitted). A damage
12 award is clearly erroneous if there is nothing in the record to
support it. Sos v. Roaring Fork Transp. Auth., 2017 COA 142, ¶ 49.
¶ 30 The proper measure of damages in a breach of contract action
is “the amount it takes to place the plaintiff[s] in the position [they]
would have occupied had the breach not occurred.” Acoustic Mktg.
Rsch., Inc. v. Technics, LLC, 198 P.3d 96, 98 (Colo. 2008). The
damages must be “traceable to and the direct result” of the breach.
Saturn Sys., Inc. v. Militare, 252 P.3d 516, 529 (Colo. App. 2011)
(citation omitted). Damages “need not be calculated with absolute
precision” but only to a degree of “reasonable certainty.” Morris v.
Belfor USA Grp., Inc., 201 P.3d 1253, 1257-58 (Colo. App. 2008).
B. Additional Two Months’ Rent and Utilities
¶ 31 Plaintiffs first argue that the district court should have
awarded them their rent and utilities for four months after the
remediation was complete instead of two months because they were
required to give ninety-one days’ notice to terminate their lease.
¶ 32 But as the district court directly addressed at trial, the lease
was not introduced as evidence, and there was no evidence of that
lease’s early termination provisions. See Tull v. Gundersons, Inc.,
709 P.2d 940, 947 (Colo. 1985) (“[T]he plaintiff in a breach of
13 contract action bears the burden of proof with respect to
damages . . . .”). Indeed, at one point during closing argument,
plaintiffs’ counsel asserted that, although she did not have a copy of
the lease, “[t]ypically it’s a 60-day notice of a lease break.”
¶ 33 Plaintiffs cite section 13-40-107(2)(a), C.R.S. 2024, for the
proposition that a tenancy of one year or longer requires at least
ninety-one days’ written notice of termination. This statute does
not show error for three reasons. First, plaintiffs did not mention it
until their C.R.C.P. 59 motion. See Briargate at Seventeenth Ave.
Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66 (“Arguments
made . . . for the first time in a post-trial motion are too late and,
consequently, are deemed waived for purposes of appeal.”). Second,
plaintiffs point to no evidence in the record that their lease was one
year or longer. Third, even if the statute applies to provide a
minimum statutory right of termination, nothing prevents a
landlord from allowing a tenant to terminate the lease sooner.
¶ 34 Given the evidence in the record, the district court did not
clearly err by awarding plaintiffs two months of rent after
remediation was complete to allow for termination of the lease.
14 C. Closing Fees
¶ 35 Plaintiffs next take issue with the district court’s failure to
award them their closing costs for purchasing the townhome and
selling it after the remediation. They assert that, if defendants had
disclosed the methamphetamine contamination, plaintiffs would not
have purchased the property in the first place, and thus would not
have incurred the costs of buying and later selling the property.
¶ 36 We conclude that the district court did not clearly err by not
awarding these costs as damages. As the district court explained,
and as plaintiffs acknowledge, plaintiffs contracted to receive a
home free of methamphetamine contamination. Under the parties’
contract, that meant either that (1) methamphetamine had never
been on the property; or (2) if it had, the property had been
remediated in accordance with state standards. Once the property
was remediated, plaintiffs received what they bargained for. The
closing costs for buying the property were part of that bargain, and
the closing costs for selling the property were outside of it.
¶ 37 Moreover, plaintiffs’ request to be placed in the position they
would have been in if they had not purchased the property is
inconsistent with their later sale of the property for a profit.
15 Allowing plaintiffs to keep their profit on the sale of the property
while awarding them their closing costs as if they had never
purchased (or sold) it would result in a “windfall to plaintiffs,
placing them in a better position than they otherwise would have
been in absent the breach.” Morris, 201 P.3d at 1259.
D. Other Expenses
¶ 38 Plaintiffs also identify four categories of expenses that they
attribute to the cost of remediation and claim were not awarded.
¶ 39 We decline plaintiffs’ invitation to perform a line-item review of
the district court’s damages award. See Morris, 201 P.3d at 1257-
58 (noting that “damages need not be calculated with absolute
precision”). The district court found that the cost to clean up the
property was $44,720, and it detailed exactly what that amount
included — “testing, remediation, replacing the furnace, replacing
the carpet, replacing the insulation, replacing the dishwasher,
replacing the microwave oven and a $200 delivery charge.” The
court also explained why it drew the line where it did — those
charges were incurred “pursuant to the recommendations of the
professionals that actually did the clean up of the house.” Because
16 the district court’s damages calculation is supported by the record,
we will not disturb it. See Tisch v. Tisch, 2019 COA 41, ¶ 67.
¶ 40 Indeed, two of the items plaintiffs contend were disallowed —
the carpet replacement and the attic insulation — were included in
the damages award. And the court indicated its reasoning for
denying others. For example, the court declined to award plaintiffs
damages for their own time in remodeling the property because it
was not foreseeable that they would perform such work themselves.
The court noted that neither expert testified the hardwood had to be
removed as part of the remediation. As to the encapsulation
painting, plaintiffs’ counsel explained in closing that it was done
before the property was determined to be contaminated, and there
was testimony at trial that repainting was not required. These were
all factual determinations for the district court. See Kroesen, ¶ 56.
IV. Attorney Fees and Costs
¶ 41 Plaintiffs assert that the district court erred in its award of
attorney fees and costs to plaintiffs. They argue that the district
court (1) did not make sufficient findings to allow for meaningful
appellate review; (2) failed to analyze their fee request using the
lodestar method; and (3) did not award them their reasonable costs.
17 A. Preservation
¶ 42 As an initial matter, we question whether plaintiffs preserved
their challenge to the fees and costs award. After plaintiffs
submitted their affidavit for attorney fees and costs, requesting
approximately $55,000, the district court ruled that it was “not
inclined to find this amount to be reasonable” and awarded $30,000
instead. But in doing so, the court explained that “[s]hould either
party wish to contest the award of fees and costs, they are entitled
to a hearing and may request one by submitting a written pleading
within 21 days,” in which case “attorney[] fees and costs will be
determined after the hearing.” Thus, though framed as a judgment,
the district court effectively treated its fees and cost award as
tentative and invited the parties to object to it if they disputed it.
By failing to request a hearing despite the district court’s express
invitation to do so, plaintiffs seemingly acquiesced in the award. Cf.
In re Marriage of Aldrich, 945 P.2d 1370, 1380 (Colo. 1997) (holding
that party who fails to make a timely request for a hearing on
reasonableness of attorney fees and costs waives such a hearing).
18 ¶ 43 But even if plaintiffs preserved their challenge through their
initial request for attorney fees and costs or their post-trial motion,
we conclude that the district court did not abuse its discretion.
B. Standard of Review and Applicable Law
¶ 44 We review an award of attorney fees and costs for an abuse of
discretion. Franklin Credit Mgmt. Corp. v. Galvan, 2019 COA 107,
¶ 27. A district court abuses its discretion when it misapplies the
law or when its decision is manifestly arbitrary, unreasonable, or
unfair. Id. The district court’s determination of a reasonable
attorney fee award “will generally not be disturbed on review unless
it is patently erroneous and unsupported by the evidence.”
Planning Partners Int’l, LLC v. QED, Inc., 2013 CO 43, ¶ 12. The
court must make findings “sufficient to allow meaningful appellate
review.” Brody v. Hellman, 167 P.3d 192, 198 (Colo. App. 2007).
¶ 45 The calculation of reasonable attorney fees generally begins
with the lodestar amount, which represents the number of hours
reasonably expended on the case multiplied by a reasonable hourly
rate. S. Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons,
P.C. v. Weinstein, 2014 COA 171, ¶ 23. The court may then adjust
that amount upward or downward based on several factors,
19 including the degree of success achieved. Id. at ¶ 24; see also
Tallitsch v. Child Support Servs., Inc., 926 P.2d 143, 147 (Colo. App.
1996) (listing relevant factors). The amount of damages recovered
by the plaintiffs is relevant to whether a fee request should be
reduced based on the degree of success achieved. Weinstein, ¶ 25.
C. Analysis
¶ 46 We first reject plaintiffs’ argument that the district court’s
findings were not sufficient to allow for appellate review of the
award. Although the findings were not extensive, the district court
identified the factors it relied on to reduce the award: (1) the
“relatively straightforward” nature of the case, including that it was
against pro se parties; (2) the expenditure of significant efforts and
fees against a party who prevailed; and (3) the expenditure of
significant efforts and fees on the unsuccessful fraud claim. See
Tallitsch, 926 P.2d at 147 (noting that a court may consider “the
complexity of the case” and “the degree of success achieved”).
¶ 47 The court also explained in its oral ruling that it would not
expect reasonable attorney fees and costs in a case like this one to
exceed forty percent of the total judgment. See Payan v. Nash Finch
Co., 2012 COA 135M, ¶ 53 (rejecting “rule of proportionality” but
20 holding that court is “not precluded from considering the amount in
controversy when awarding attorney fees”); cf. Weinstein, ¶ 32
(holding that district court “did not abuse its discretion when it
used a ratio of damages actually awarded to damages requested”).
Together, these findings are sufficient to give us “a clear
understanding of the basis of [the district court’s] decision.”
Gravina Siding & Windows Co. v. Gravina, 2022 COA 50, ¶ 79.
¶ 48 We also disagree with plaintiffs that the district court abused
its discretion by not calculating the lodestar amount. The court
began by acknowledging plaintiffs’ request, which was based on the
number of hours plaintiffs’ counsel billed multiplied by her hourly
rate. The court then found that amount was not reasonable — or at
least that it was “not inclined to find” that it was — and specifically
noted that plaintiffs were not entitled to recover fees for their claims
against Sheree and their fraud claim. In doing so, the court
effectively applied the lodestar analysis, even if it did not expressly
calculate the lodestar amount. See Weinstein, ¶ 26 (holding that
district court did not abuse its discretion by accepting plaintiff’s fee
request as the starting point and taking deductions from that
amount); In re Marriage of Collins, 2023 COA 116M, ¶ 53 (holding
21 that the district court did not abuse its discretion by not calculating
a lodestar amount where it considered the lodestar adjustment
factors, there was no dispute as to the reasonableness of counsel’s
hourly rate, and the court’s findings were sufficient to support its
implied conclusion that the hours expended were reasonable).
¶ 49 The district court certainly could have done more to explain its
award of fees and costs. For example, it would have been better for
the court to identify — or at least give examples of — the hours it
was excluding and why. It also would have been better if the court
had explained how it landed on $30,000 as the reasonable amount.
¶ 50 But a district court’s goal in awarding attorney fees is “to do
rough justice, not to achieve auditing perfection . . . tak[ing] into
account [the district court’s] overall sense” of the case. Fox v. Vice,
563 U.S. 826, 838 (2011). The court need not do so with the
precision of an accountant but “may use estimates in calculating
and allocating an attorney’s time.” Id. And when it has done so, we
must give its determinations “substantial deference” and avoid
“appellate micromanagement.” Id. Giving the district court the
deference it is due, we cannot conclude that it abused its discretion.
22 ¶ 51 Finally, plaintiffs assert that the district court erred by
awarding their costs in a “bulk amount” with their attorney fees.
But plaintiffs themselves requested their fees and costs as a bulk
amount.3 They thus invited any error in the district court doing the
same. See Bernache v. Brown, 2020 COA 106, ¶ 11 (“The doctrine
of invited error prevents a party from complaining on appeal of an
error that he or she has invited or injected into the case.”).
¶ 52 In any event, the district court awarded plaintiffs their
reasonable costs as the prevailing party, as required by rule. See
C.R.C.P. 54(d) (allowing consideration of “the needs and complexity
of the case and the amount in controversy”). And as noted above, it
generally explained the basis of its overall award of fees and costs.
See Danko v. Conyers, 2018 COA 14, ¶ 72. Under these
circumstances, the district court did not abuse its discretion by
combining the cost award with the award of fees, particularly where
plaintiffs did the same. See id. at ¶ 68 (“[T]he [district] court’s
3 Although plaintiffs’ affidavit for attorney fees and costs included
separate columns for fees and costs, their ultimate request was for “reasonable fees and costs in the amount of $55,016.43.”
23 findings as to the reasonableness and amount of costs will be
disturbed on appeal only for an abuse of discretion.”).
V. Prejudgment Interest
¶ 53 Plaintiffs next argue that the district court erred by not
awarding them their prejudgment interest. We agree.
¶ 54 In a breach of contract case, the nonbreaching party is entitled
to recover prejudgment interest under section 5-12-102(1), C.R.S.
2024. Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821, 825-26
(Colo. 2008). The interest accrues from the date the money has
been “wrongfully withheld.” § 5-12-102(1)(a). In a contract action,
that is generally the date of the breach. Butler v. Lembeck, 182 P.3d
1185, 1194 (Colo. App. 2007). But when the plaintiff seeks
damages for replacement or repair costs, prejudgment interest
begins to accrue when the plaintiff incurs those costs. Goodyear
Tire & Rubber Co., 193 P.3d at 830; see also Hildebrand v. New
Vista Homes II, LLC, 252 P.3d 1159, 1173 (Colo. App. 2010).
¶ 55 The district court appeared to recognize plaintiffs’ entitlement
to prejudgment interest in its oral ruling, finding that “plaintiffs are
entitled to interest at the statutory rate from the date of closing on
the contract.” But in its written findings and judgment, the district
24 court awarded plaintiffs interest only “from the date of the verdict
until paid” — i.e., postjudgment interest only. Because plaintiffs
are entitled to prejudgment interest by statute, this was error.
¶ 56 We therefore reverse the judgment to the extent it fails to
award prejudgment interest, and we remand the case to the district
court to award plaintiffs prejudgment interest under section
5-12-102(1). To the extent the damages are based on repair costs
or other expenditures by plaintiffs, the prejudgment interest should
run from the date those costs were incurred. See Goodyear Tire &
Rubber Co., 193 P.3d at 830; Hildebrand, 252 P.3d at 1173.
VI. Claims Against Sheree
¶ 57 Plaintiffs’ final contention is that the district court erred by
ruling against them on their claims against Sheree. We disagree.
¶ 58 Initially, to the extent plaintiffs characterize the district court’s
ruling as a directed verdict, they are incorrect. The district court’s
dismissal of the claims against Sheree came at the end of trial, after
presentation of evidence and closing arguments. Thus, it was not a
directed verdict but a judgment in Sheree’s favor on the merits.
¶ 59 We review a judgment after a bench trial as a mixed question
of fact and law. State ex rel. Weiser v. Ctr. for Excellence in Higher
25 Educ., Inc., 2023 CO 23, ¶ 33. We review the district court’s factual
findings for clear error and its legal conclusions de novo. Kroesen,
¶ 55. In conducting this review, we defer to the district court’s
credibility determinations and its assessment of the weight and
probative effect of the evidence. Amos v. Aspen Alps 123, LLC, 2012
CO 46, ¶ 25; Saturn Sys., 252 P.3d at 521. We will not disturb the
district court’s factual findings unless they are clearly erroneous
and unsupported by the record. Amos, ¶ 25.
¶ 60 The district court correctly ruled against plaintiffs on their
claim against Sheree for breach of contract. Sheree’s sole
involvement in the sale of the property was as Kenaniah’s power of
attorney for the closing of the transaction — approximately a month
after execution of the contract that was allegedly breached. Even if
Sheree had signed the contract as Kenaniah’s power of attorney, she
could not have been liable for a breach of that contract. See Water,
Waste & Land, Inc. v. Lanham, 955 P.2d 997, 1001 (Colo. 1998) (“If
both the existence and identity of the agent’s principal are fully
disclosed to the other party, the agent does not become a party to
any contract which he negotiates.”) (citation omitted); see also
Restatement (Third) of Agency § 6.01 cmt. d (Am. L. Inst. 2006).
26 ¶ 61 But Sheree did not even do that. She did not receive
Kenaniah’s power of attorney until two weeks after execution of the
contract and property disclosure on which plaintiffs’ contract claim
is based. By agreeing to act as Kenaniah’s agent for the closing of
the transaction, Sheree did not assume his pre-existing contractual
obligations. Thus, because Sheree is not a party to the contract,
she could not be liable to plaintiffs for a breach of that contract.
¶ 62 The record also supports the district court’s finding in Sheree’s
favor on plaintiffs’ fraud claim. Sheree’s power of attorney to act on
Kenaniah’s behalf did not make her a seller of the property. She
testified that she did not review the offers, was not involved in the
final decision to sell, and never saw the Seller’s Property Disclosure.
She further testified that her role as Kenaniah’s power of attorney
was limited to “sign[ing] the papers on his behalf the day of closing.”
And although a principal may be liable for an agent’s
misrepresentations made within the scope of the agency, see Grease
Monkey Int’l, Inc. v. Montoya, 904 P.2d 468, 475 (Colo. 1995), an
agent generally is not liable for the independent acts of a fully
disclosed principal. See Hildebrand, 252 P.3d at 1166 (holding that
27 agents may be liable for their own acts on behalf of a principal only
where they were directly involved in the tortious conduct).
¶ 63 Moreover, even assuming Sheree had a duty to disclose latent
defects of which she was aware, the record supports the district
court’s implicit finding that she did not know of the
methamphetamine contamination. Sheree testified that (1) she was
unaware of Stacie’s methamphetamine usage; (2) Stacie had misled
her as to why she was no longer employed; (3) she had only met the
father of Stacie’s children twice while Stacie owned the property and
did not know of his drug problem; and (4) she did not believe Stacie
and Kenaniah were responsible for the methamphetamine
contamination. To the extent plaintiffs suggest that it is “more
likely than not” that Sheree did have such knowledge, that was a
question of fact for the district court. See Amos, ¶ 25; Morris, 201
P.3d at 1258 (“At a bench trial, it is the trial court’s duty to assess
the evidence and determine the credibility of the witnesses.”).
¶ 64 Plaintiffs’ argument that Sheree should have been found liable
for acting in concert with the other defendants fails for the same
reason. Plaintiffs cite section 13-21-111.5(4), C.R.S. 2024, which
provides for joint liability for “two or more persons who consciously
28 conspire and deliberately pursue a common plan or design to
commit a tortious act.” But there can be no joint liability in the
absence of an underlying tort. See Colo. Cmty. Bank v. Hoffman,
2013 COA 146, ¶ 43 (“Civil conspiracy is a derivative cause of
action that is not independently actionable.”) (citation omitted);
Resol. Tr. Corp. v. Heiserman, 898 P.2d 1049, 1055 (Colo. 1995)
(concluding that the term “tortious act” in section 13-21-111.5(4)
“includes any conduct other than breach of contract that constitutes
a civil wrong and causes injury or damages”) (emphasis added).
¶ 65 Finally, we disagree with plaintiffs that the district court did
not make sufficient findings to permit appellate review. The district
court found there was no “evidence of any wrongdoing” on the part
of Sheree. Implicit in this finding was that Sheree did not breach
any contractual duty or knowingly fail to disclose anything she was
required to disclose. The court’s comments during plaintiffs’ closing
argument fleshed out this finding, as the court indicated that (1) a
person cannot be liable solely for serving as a power of attorney;
(2) Sheree’s role was limited to signing documents; and (3) there
was no evidence Sheree knew her daughter had used
29 methamphetamine in the home. Because these findings have
record support, we will not disturb them. See Amos, ¶ 25.
¶ 66 Thus, the district court did not clearly err in finding that
Sheree was not liable to plaintiffs on their claims.
VII. Disposition
¶ 67 The case is remanded for the district court to award plaintiffs
prejudgment interest. The judgment is otherwise affirmed.
JUDGE FREYRE and JUDGE SULLIVAN concur.