Sweet v. 303 Construction

Opinion

24CA0767 Sweet v 303 Construction 07-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0767 Douglas County District Court No. 22CV28 Honorable Andrew Baum, Judge

Renee Sweet and Jeffrey Buske,

Plaintiffs-Appellants,

v.

303 Construction Services, LLC, and Brian Anthony Moore,

Defendants-Appellees.

JUDGMENT AND ORDER AFFIRMED

Division II Opinion by JUDGE TOW Harris and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 16, 2026

Renee Sweet, Pro Se

Jeffrey Buske, Pro Se

The Moore Law Firm, P.C., Theresa M. Moore, Englewood, Colorado; Christy Law LLC, Jessica Christy, Denver, Colorado for Defendants-Appellees ¶1 Plaintiffs, Renee Sweet and Jeffrey Buske, appeal the district

court’s judgment entered against defendants, 303 Construction

Services, LLC (303); Brian Anthony Moore; Super Frank, LLC; SF

Construction Services, LLC; Frank Henry Walley IV; and Douglas

Gregory Walley,1 and appeal the order denying their motion for

postjudgment relief. We affirm the judgment and the order.

I. Background

¶2 Sweet and Buske sued defendants, asserting various legal and

equitable claims arising out of an incident involving repair work

done pursuant to a homeowner’s insurance claim. One claim was

for civil theft for which Sweet and Buske sought treble damages

under section 18-4-405, C.R.S. 2025. In the complaint, Sweet and

Buske requested a jury trial.

¶3 After none of the defendants answered or otherwise responded

to the complaint, Sweet and Buske moved for entry of a default

judgment. They included an affidavit — incorporating exhibits and

additional affidavits — in support of the amount of damages sought.

1 Super Frank, LLC; SF Construction Services, LLC; Frank Henry

Walley IV; and Douglas Gregory Walley did not participate in the appeal.

1 ¶4 The district court entered a default judgment for Sweet and

Buske and against defendants in the amount of $259,587.32. A

writ of garnishment was subsequently served on 303’s bank, as well

as on other nonparties.

¶5 Defendants filed a motion to set aside the default judgment,

alleging, among other reasons, that the amount of damages claimed

by Sweet and Buske was fraudulent. Moore subsequently filed his

own C.R.C.P. 60(b) motion, advancing the same argument, among

others. Sweet and Buske opposed both motions. The district court

vacated the default judgment as to the amount of damages only —

not as to liability.

¶6 The court conducted a damages hearing on February 21 and

March 1, 2024. The court issued a written judgment in favor of

Sweet and Buske and against defendants and awarded them

$52,258.84 in damages.

¶7 Sweet and Buske filed a motion for postjudgment relief seeking

an amendment of the judgment or, alternatively, a new trial. The

court summarily denied it.

2 II. Appellate Record

¶8 As a threshold issue, we address the state of the appellate

record. Sweet and Buske submitted a transcript request. When

the appellate record was certified, the district court appellate clerk

noted that Sweet and Buske did not pay for the transcripts and

thus none were submitted as part of the record.

¶9 Sweet and Buske filed a motion to supplement and settle the

record with this court, in which they requested that defendants be

required to order and pay for the transcripts. This court denied the

motion to supplement the record, with leave to renew if Sweet and

Buske showed that they had made payment arrangements for the

transcripts. They made no such showing, and the appeal proceeded

without the transcripts, including those from the damages hearing.

¶ 10 As 303 and Moore correctly assert, appellants are responsible

for providing an adequate record for us to review, including

“transcripts of all proceedings necessary for considering and

deciding the issues on appeal.” C.A.R. 10(d)(3). And when

appellants fail to provide transcripts, “the reviewing court must

presume that the record supports the judgment.” In re Marriage of

Dean, 2017 COA 51, ¶ 13.

3 III. Sweet and Buske’s Appellate Claims

¶ 11 Sweet and Buske contend that the district court erred by

(1) setting aside the default judgment entered against Moore

and Frank Henry Walley IV;

(2) vacating the default judgment against the “non-appearing

corporate defendants” (Super Frank, LLC, and SF

Construction Services, LLC) and Douglas Gregory Walley;

(3) failing to preserve the default judgment amount as

security pending resolution of their claims;

(4) vacating the writ of garnishment against 303’s bank;

(5) failing to grant them a trial on the merits after vacating

the default judgment;

(6) failing to follow the Rules of Civil Procedure and harming

their substantive rights by not holding a trial on the

merits;

(7) failing to treble the damages on the civil theft claim;

(8) failing to grant their postjudgment motion;

(9) applying C.R.C.P. 26(a)(2)(C)(I) to a Rule 60(b) hearing;

(10) transmitting documents titled exhibits to this court when

no trial occurred;

4 (11) denying a motion to strike Moore’s Rule 60(b) motion as a

defective filing because the verification page did not have

a notary seal or jurat; and

(12) not conducting a jury trial, despite the fact that they

made a jury demand and paid the fee.

¶ 12 We first identify the unpreserved issues that we will not

address and then turn to the preserved issues.

A. Unpreserved Issues

¶ 13 Although we liberally construe pro se parties’ arguments, we

cannot invent arguments they have not made. Minshall v. Johnston,

2018 COA 44, ¶ 21. Further, pro se litigants are bound by the

procedures and standards of this court, and we will not construe

their briefs so liberally that we ignore the preservation requirement.

See Anderson v. Shorter Arms Invs., LLC, 2023 COA 71, ¶ 25.

Moreover, a pro se litigant “must be prepared to accept the

consequences of his mistakes and errors.” Rosenberg v. Grady, 843

P.2d 25, 26 (Colo. App. 1992).

5 1. Issues One Through Six

¶ 14 For issues one through six, Sweet and Buske rely on their

motion for postjudgment relief as preserving the respective issue.2

These issues concern the impact of the court setting aside the

default judgment, including whether Sweet and Buske were entitled

to a trial on the merits, as opposed to just a damages hearing;

which defendants were affected; and what happened to the writ of

garnishment.

¶ 15 To preserve an issue for appeal, the party must bring the issue

to the district court’s attention, giving the court an opportunity to

rule on it. Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570

(Colo. App. 2010). Further, issues raised for the first time in a

motion after the judgment has been entered are not appealable.

See Briargate at Seventeenth Ave. Owners Ass’n v. Nelson, 2021

COA 78M, ¶ 66 (“Arguments made, as here, for the first time in a

2 Sweet and Burke also assert that they preserved issue one in their

response in opposition to Moore’s C.R.C.P. 60(b) motion. In that response, they appeared to argue that Moore was not entitled to relief under C.R.C.P. 60(b)(2) because the purported fraud was intrinsic rather than extrinsic. To the contrary, on appeal, they appear to attack the adequacy of the fraud allegations in the first place.

6 post-trial motion are too late and, consequently, are deemed waived

for purposes of appeal.”).

¶ 16 Thus, because Sweet and Buske failed to raise issues one

through six at any point before the final judgment entered, we

conclude that they raised them too late.

2. Issue Nine

¶ 17 Sweet and Buske concede that issue nine is not preserved.

3. Issue Eleven

¶ 18 Sweet and Buske contend that issue eleven is preserved in

their response in opposition to Moore’s C.R.C.P. 60(b) motion. But

nowhere in that response do they argue that Moore’s Rule 60(b)

motion was defective because it was unverified given the lack of

notary seal or jurat on the verification page. See People in Interest

of T.S., 781 P.2d 130, 132 (Colo. App. 1989) (concluding that

because the appellant “failed to object in the trial court on the

grounds now asserted, she is deemed to have waived any objection

and cannot raise it on appeal”). Thus, this contention is

unpreserved.

7 B. Issue Twelve

¶ 19 Sweet and Buske contend that they demanded a jury trial in

their complaint and paid the required fee. They further contend

that after the default judgment was set aside, they asserted that

they were entitled to a jury trial. But, as noted, they did not raise

this contention until they filed their motion for postjudgment relief.

Thus, by failing to object to the damages hearing proceeding as a

bench trial, they waived their jury trial demand. See Johnson v.

Neel, 229 P.2d 939, 944-45 (Colo. 1951).

¶ 20 Accordingly, we do not address issues one through six, nine,

eleven, or twelve. We now turn to the preserved issues.

C. Preserved Issues

1. Issue Seven

¶ 21 Sweet and Buske contend that the district court erred by not

trebling the damages for their civil theft claim. We discern no error.

¶ 22 First, the record belies plaintiffs’ contention. In the court’s

judgment following the damages hearing, it noted that Sweet and

Buske requested treble damages for their civil theft claim but did

not distinguish what damages they sought for any specific claim.

The court stated that plaintiffs sought treble damages under the

8 civil theft statute for the loss of cabinets, a granite vanity, a Bosch

double oven, a window, two doors, and tiles. The court then listed

the value of the specific items it found had been stolen, totaled the

amounts, and trebled the total, which amounted to $29,247.36.

Thus, the record demonstrates that the court trebled the damages

attributable to the civil theft claim.

¶ 23 Further, to the extent Sweet and Buske challenge the court’s

findings, we must presume that the missing hearing transcripts

support the judgment. See Dean, ¶ 13.

2. Issue Eight

¶ 24 Sweet and Buske contend that the district court erred by

denying their motion for postjudgment relief.

¶ 25 First, to the extent Sweet and Buske contend that the court

abused its discretion by summarily denying their postjudgment

motion for relief, we disagree. They cite no authority, and we are

aware of none, that requires a court to make explicit findings in

ruling on C.R.C.P. 59 motions. In the absence of such authority,

“[f]indings of fact and conclusions of law are unnecessary.”

C.R.C.P. 52.

9 ¶ 26 As to their substantive challenges to the court’s denial of their

postjudgment motion, Sweet and Buske contend that the court

failed to (1) preserve the writ of garnishment as security when it set

aside the default judgment; (2) award treble damages on the civil

theft claim; and (3) hold a trial on the merits. Plaintiffs rely

exclusively on their motion for postjudgment relief to support these

arguments and do not develop them further in their opening brief.

¶ 27 We reject this attempt to raise issues, or to provide support for

these issues, by referencing or directing this court to review their

district court filings, or by incorporating such filings by reference

into their appellate brief. See C.A.R. 57 (prohibiting incorporation

by reference of briefs previously filed in the district court).

Incorporating by reference or adopting by reference arguments from

previous filings is improper because it attempts to shift, from the

litigants to the court, the task of locating and synthesizing the

relevant facts and arguments. Castillo v. Koppes–Conway, 148 P.3d

289, 291 (Colo. App. 2006); C.A.R. 28(g)(1). Therefore, we decline to

consider these issues because Sweet and Buske only raised them as

arguments in their district court motion for postjudgment relief but

did not develop them in their opening brief. See McCauley v. Colo.

10 Dep’t of Revenue, 2022 COA 25, ¶ 7 n.1 (declining to address

undeveloped argument).

3. Issue Ten

¶ 28 Sweet and Buske contend that the exhibits in the appellate

record improperly imply that a trial on the merits was held in the

district court and that the exhibits were admitted. We disagree.

¶ 29 The exhibits in the appellate record include (1) a photograph of

a note by plaintiffs asking for a thumb drive to be included in the

district court record and a photograph of the thumb drive itself and

(2) the exhibits filed on February 20, 2024, by Moore in advance of

the damages hearing.

¶ 30 First, the presence of these exhibits in the court file does not

imply that a trial on the merits occurred. Exhibits can be filed in

any number of contexts, including (as here) as attachments to

motions. The mere fact that there is an exhibit folder in the

appellate record in no way implies that a trial on the merits

occurred, or that those exhibits were admitted in any other hearing.

Those exhibits appear, identified as such, in the trial record; their

inclusion in the appellate record with the same label is not only

appropriate — it is necessary.

11 ¶ 31 The record also belies their contention that the exhibits were

not admitted. In its judgment after the damages hearing, the court

listed which exhibits it received. And again, as noted, because we

do not have the transcripts from the damages hearing, we must

presume that they support the judgment. See Dean, ¶ 13.

¶ 32 Moreover, as noted, it is appellants’ responsibility to ensure

that the record is properly transmitted. See C.A.R. 10(d)(3). “If any

difference arises as to whether the record truly discloses what

occurred in the trial court . . . , the difference must be submitted to

and settled by the trial court,” and “[t]he party moving to settle the

record must file a motion to stay the appellate court proceedings in

the appellate court while the trial court considers the motion to

settle the record.” C.A.R. 10(g)(1). Sweet and Buske filed numerous

motions to settle the record, moved to stay the appellate

proceedings, and raised with the district court that an “exhibit

record” was transmitted despite no trial on the merits being held

and no exhibits being listed as admitted. This court stayed the

appellate proceedings until the district court settled the record.

Once settled, the stay was lifted, and Sweet and Buske filed their

amended opening brief. Thus, Sweet and Buske had their chance

12 to correct any difference as to whether the record truly disclosed

what occurred in the district court, and we will not alter the record

now.

¶ 33 In any event, we do not rely on any of the exhibits in resolving

this appeal.

IV. Appellate Attorney Fees

¶ 34 303 and Moore request an award of their appellate attorney

fees, asserting that plaintiffs’ appeal was frivolous and vexatious.

¶ 35 “A party who is appearing without an attorney . . . shall not be

assessed attorney fees . . . unless the court finds that the party

clearly knew or reasonably should have known that the party’s

action or defense, or any part of the action or defense, was

substantially frivolous . . . .” § 13-17-102(6), C.R.S. 2025.

¶ 36 Even assuming plaintiffs’ arguments were frivolous and

vexatious, 303 and Moore have not shown that Sweet and Buske

knew or should have known that their appeal was frivolous or

vexatious. They rely on an unpublished 2022 case, Board of County

Commissioners v. Sweet, (Colo. App. No. 21CA0671, July 28, 2022)

(not published pursuant to C.A.R. 35(e)), in which Sweet was

13 warned that it was a close call whether appellate attorney fees

would be awarded against her, but, ultimately, they were not.

¶ 37 As a threshold matter, we note that citation to this case is in

derogation of this court’s prohibition against citing unpublished

opinions except to “explain the case history, identify the law of the

case, or assert the doctrines of issue preclusion or claim

preclusion.” See Colo. Jud. Branch, Court of Appeals Policies, Policy

Concerning Citation of Opinions Not Selected for Official Publication

(2026), https://perma.cc/ZQW2-H29D.

¶ 38 In any event, we do not think that 2022 opinion can bear the

burden 303 and Moore place on it. Unlike in that case, here, Sweet

did not insult anyone in her briefs or include irrelevant

discussions.3 Though most of the issues raised in this appeal were

not preserved, Sweet and Buske appear to have made a good faith

effort to determine the applicable law. We therefore deny 303’s and

Moore’s requests for appellate attorney fees.

3 Notably, although 303 and Moore assert that the unpublished

decision supports a finding that both Sweet and Buske were warned about frivolous litigation, Buske was not a party in the 2022 case.

14 V. Disposition

¶ 39 The judgment and order are affirmed.

JUDGE HARRIS and JUDGE BROWN concur.