25CA1032 & 25CA1816 Thompson v Town of Estes Park 09-17-2026 COLORADO COURT OF APPEALS
Court of Appeals Nos. 25CA1032 & 25CA1816 Larimer County District Court No. 24CV30673 Honorable Laurie K. Dean, Judge
Alexandra Thompson, Plaintiff-Appellant, v.
The Town of Estes Park and Mikel Otazua, as an individual and in his official capacity,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE FREYRE
Johnson and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 17, 2026
H. Craig Skinner, Denver, Colorado, for Plaintiff-Appellant
SGR, LLC, Jonathan M. Abramson, Yulia Nikolaevskaya, Denver, Colorado, for Defendant-Appellee The Town of Estes Park
Lasater & Martin, P.C., Peter H. Doherty, Greenwood Village, Colorado, for Defendant-Appellee Mikel Otazua
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2026.
¶1 Plaintiff, Alexandra Thompson, appeals the district court’s order granting the motions of defendants, the Town of Estes Park (the Town) and Mikel Otazua, to dismiss her second amended complaint for failure to provide written notice pursuant to the Colorado Governmental Immunity Act (CGIA), § 24-10-109(1), C.R.S. 2026.1 We affirm in part, reverse in part, and remand with directions.
I. Background
¶2 On August 3, 2022, Thompson was attacked by a dog named Diego while on Otazua’s property. Thompson and Otazua were dating and Otazua was Thompson’s landlord. At the time of the incident, Otazua was a police officer with the Estes Park Police Department (EPPD) and had been Diego’s handler for three years as part of the EPPD’s K-9 program. During this time, the Town was Diego’s owner, was responsible for his care, and controlled where and how he was kenneled. The Town compensated Otazua to kennel Diego in his backyard.
1 This court granted Thompson’s unopposed motion to consolidate case numbers 25CA1032 and 25CA1816.
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¶3 A month earlier, Otazua had informed EPPD that he was transferring to the Larimer County Sheriff’s Department. As a result, EPPD decided to end the K-9 program. On behalf of EPPD, Otazua found a position for Diego at the Greeley Police Department, but when Diego bit his new handler, Diego was returned to EPPD, where he remained kenneled in Otazua’s backyard.
¶4 On the day of the incident, Otazua was working when Thompson informed him that Diego was restless. As alleged by Thompson, Otazua gave Thompson permission to enter Diego’s kennel to feed him. Thompson fed Diego and as she left the kennel, Diego attacked her. Thompson suffered a concussion, broken ulna, and fractured radius; lost her radial artery; and required screws and bolts to be put in her wrist.
¶5 Thompson filed her original complaint against the Town and Otazua on August 1, 2024, and then filed an amended complaint on October 27, 2024, alleging strict liability under section 13-21-124, C.R.S. 2026, two counts of negligence, and negligence per se.
¶6 In January 2025, the Town and Otazua both filed motions to dismiss Thompson’s amended complaint. Both parties argued that Thompson’s claims should be dismissed for lack of subject matter
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jurisdiction, pursuant to C.R.C.P. 12(b)(1), because Thompson failed to comply with CGIA’s written notice requirement. Thompson responded to both motions and then filed a motion for leave to file a second amended complaint. The district court granted the motion to amend and dismissed the pending motions as moot.
¶7 Thompson alleged several causes of action in the second amended complaint: (1) liability under the Premise Liability Act (PLA) against the Town; (2) PLA liability against Otazua; (3) liability under section 13-21-124 against the Town and Otazua; (4) negligence against the Town and Otazua; and (5) negligence per se against the Town and Otazua.
¶8 The Town and Otazua filed motions to dismiss Thompson’s second amended complaint, again arguing that Thompson’s claims were barred by the CGIA because she failed to comply with the CGIA’s written notice requirement and, therefore, the court lacked subject matter jurisdiction under C.R.C.P. 12(b)(1).
¶9 In her responses, Thompson argued that Colorado recognizes certain exceptions to the CGIA’s written notice requirement. First, Thompson argued that the Town and Otazua were estopped from asserting noncompliance with the notice requirement because
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Otazua, acting as an agent for the Town, pressured her into not filing a notice of claim. Second, Thompson argued that the CGIA written notice provisions were entitled to deferential consideration in favor of the victims injured by the negligence of governmental agencies because the fundamental purpose of the CGIA is to permit a person to seek redress for personal injuries caused by a public entity. Relying on Finnie v. Jefferson County School District R-1, 79 P.3d 1253 (Colo. 2003), Thompson argued that governmental entities may not mislead potential claimants and that a case-by-case determination of compliance — which considers principles of agency and equity, the purpose of the statute, and concerns of protecting plaintiffs from misrepresentations by governmental entities — was required.
¶ 10 The district court granted both motions to dismiss. In nearly identical orders, the district court found that there was no dispute that (1) Thompson was attacked by Diego on August 3, 2022; (2) Thompson was aware of the CGIA’s written notice requirement; and (3) a timely notice of claim was never sent. Accordingly, under the plain language of section 24-10-109(1), Thompson did not submit a
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notice of claim within 182 days of the injury and was therefore barred from bringing an action.
¶ 11 Addressing Thompson’s arguments, the district court found Thompson’s estoppel claim failed as a matter of law because such defenses were not available under section 24-10-109(1). Further, the district court rejected Thompson’s argument that it should take a flexible approach to the requirements of section 24-10-109(1) and weigh the policy considerations underlying the statutory provision. The district court found that Thompson relied on case law that examined the requirements of section 24-10-109(3), rather than section 24-10-109(1), to argue that a misrepresentation exception applied here and that her failure to file any notice did not compromise the intent and purpose of the CGIA. The district court found that Thompson’s flexible approach has never been applied to the written notice requirement and declined to apply it here.
¶ 12 On June 4, 2025, Thompson filed a notice of appeal. Then on June 11, Thompson filed a motion for clarification asking the court to clarify the status of Otazua in his individual capacity. Thompson argued that her complaint established Otazua’s PLA liability as both an agent of the Town and as an individual. The district court found
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that Thompson never raised this argument in the briefing on the motions to dismiss. It then ordered the parties to brief the issue and to also brief whether it had jurisdiction over the motion given Thompson’s filing of a notice of appeal in this court.2
¶ 13 Thompson argued that she filed the complaint against Otazua individually and Otazua in his official capacity. She argued that Otazua was the owner and landlord of the house she lived in and that, even though Otazua was paid by the Town to kennel Diego, Otazua was hired by the Town as a police officer and not a dog keeper. Thus, Otazua acted as an independent contractor for kenneling Diego because it was not part of his job description.
¶ 14 Otazua argued that the CGIA provided immunity for both governmental entities as well as persons sued in their individual capacity. He argued that Thompson never disputed whether he was performing duties incidental to his employment and that the order dismissing Thompson’s second amended complaint dismissed the claims against him in his individual capacity and as a public employee.
2 The district court’s jurisdiction over the motion for clarification is not at issue in this appeal, so we do not discuss it further.
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¶ 15 Relying on Kliewer v. Sopata, 797 F. Supp. 1569, 1570 (D. Colo. 1992), the district court found that Thompson’s injuries occurred from acts or omissions that were within the scope of Otazua’s employment and, therefore, were subject to the CGIA written notice requirement. In Kliewer, the court found that an action against a police officer in connection with an attack by a dog kept at the officer’s residence was against the officer in his official capacity, even though the officer was off duty at the time of the attack, because the officer was required by the department to keep the dog at his house and it was only because of his capacity as a police officer that the dog was at his house. Id. Accordingly, the district court found that Otazua was required to keep Diego at his house pursuant to an arrangement with the Town and it was only because of Otazua’s employment as a police officer that Diego was at his house.
¶ 16 On appeal, Thompson contends that the district court erred by (1) granting the Town’s and Otazua’s motions to dismiss her second amended complaint and (2) dismissing Otazua in an individual capacity. We affirm the district court’s judgment granting the Town’s and Otazua’s motions to dismiss Thompson’s second
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amended complaint. However, because we conclude that there are unresolved factual disputes material to whether the CGIA is applicable to Otazua in an individual capacity, we reverse and remand for the district court to conduct a hearing and resolve key facts.
II. CGIA Notice Requirement
¶ 17 Thompson contends that the district court erred by granting the Town’s and Otazua’s motions to dismiss her second amended complaint pursuant to the CGIA’s written notice requirement. We disagree.
A. Standard of Review and Applicable Law
¶ 18 We review questions of statutory interpretation de novo. Hobbs v. City of Salida, 2025 CO 50, ¶ 11. Our primary task when interpreting a statute is to “discern and effectuate the legislature’s intent ‘by construing the statute as a whole, “giving consistent, harmonious, and sensible effect to all of the statute’s parts.”’” Id. (quoting Burnett v. State Dep’t of Nat. Res., 2015 CO 19, ¶ 12). We start by looking at the plain language of the statute to determine if the statute is ambiguous. Banner Health v. Gresser, 2025 CO 60M,
¶ 12. If the statute is unambiguous, we apply it as written. Hobbs,
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¶ 12. If the statute is ambiguous, we then look to other aids of statutory interpretation to determine the legislature’s intent. Nieto v. Clark’s Mkt., Inc., 2021 CO 48, ¶ 13.
¶ 19 “Governmental immunity implicates issues of subject matter jurisdiction that are determined in accordance with C.R.C.P. 12(b)(1).” St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33,
¶ 9. We review de novo any legal issues that arise from a jurisdictional analysis under the CGIA. Springer v. City & County of Denver, 13 P.3d 794, 798 (Colo. 2000). However, “[w]hen the jurisdictional issue involves a factual dispute, a reviewing court employs the clearly erroneous standard of review.” Id. A district court’s conclusions are clearly erroneous if there is no support for them in the record. Parocha v. Parocha, 2018 CO 41, ¶ 11.
¶ 20 Except as specified in the CGIA, the CGIA immunizes public entities from “all claims for injury that lie in tort or could lie in tort.” § 24-10-106(1), C.R.S. 2026. As a jurisdictional prerequisite to filing a tort claim against a public entity, the CGIA requires the complainant to provide the public entity with written notice of her claim within 182 days after discovering the injury. § 24-10-109(1). “[F]ailure of compliance [with the written notice requirement] shall
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forever bar any such action.” Id. “[T]o start the running of the CGIA notice period, a claimant need only have discovered that . . . she has been wrongfully injured, and need not yet know the cause of the injury or the extent of the damage.” Abrahamson v. City of Montrose, 77 P.3d 819, 821 (Colo. App. 2003). Moreover, section 24-10-109(1) is a nonclaim statute; therefore, unlike an ordinary statute of limitations, it is not subject to equitable defenses such as waiver, tolling, or estoppel. Mesa Cnty. Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1206 (Colo. 2000).
B. Analysis
¶ 21 Thompson argues that the Town and Otazua were aware of the information required by the CGIA written notice requirement and that dismissing her claims for not providing that “known” information “is to enforce a procedural rule at the expense of legislative intent.” To support her contention, Thompson references statutes in other states and argues that the “trend in modern law” is to limit sovereign immunity with an “actual notice” waiver acknowledging that if the government already possesses all the critical information about an incident, then the primary purpose of
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the formal written notice has been met. We reject Thompson’s argument, for two reasons.
¶ 22 First, the plain language of section 24-10-109(1) provides that a claimant “shall file a written notice as provided in this section.” (Emphasis added.) The use of the word “shall” indicates the General Assembly intended the provision to be mandatory. Associated Gov’ts v. Colo. Pub. Utils. Comm’n, 2012 CO 28, ¶ 15; see also Dep’t of Transp. v. Stapleton, 97 P.3d 938, 943 (Colo. 2004) (“[W]e presume that the General Assembly understands the legal import of the words it uses and does not use language idly, but rather intends that meaning should be given to each word.”). Moreover, if the General Assembly had intended only that the government have “actual notice” of a claim, it would have stated so rather than requiring written notice. Thompson’s argument would require us to add language to the statute that does not exist. See People v. Rau, 2022 CO 3, ¶ 15 (we cannot add or subtract words from a statute).
¶ 23 Second, we agree with the district court that Thompson’s “flexible approach” argument applies only to section 24-10-109(3) and not to section 24-10-109(1), which is at issue here. Thus,
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Thompson’s reliance on Finnie is misplaced. In Finnie, the Colorado Supreme Court differentiated between section 24-10-109(1) and section 24-10-109(3), explaining that section 24-10-109(1) creates a “jurisdictional prerequisite to suit that therefore requires strict compliance with its terms,” while section 24-10-109(3) “provid[es] a statutory defense to claims rather than creating a jurisdictional prerequisite to suit.” Finnie, 79 P.3d at 1256. Therefore, a section 24-10-109(3) analysis permits a court to make a “case-by-case determination[] of compliance, which considers principles of agency and equity, the purposes of the statute, and concerns of protecting plaintiffs from misrepresentations by governmental entities.” Id. at 1258; see also Mostellar v. City of Colorado Springs, 2026 CO 22,
¶ 26 (declining to apply the substantial compliance standard accepted for section 24-10-109(3) to section 24-10-109(1)). We are bound by supreme court precedent. Silver v. Colo. Cas. Ins. Co., 219 P.3d 324, 330 (Colo. App. 2009). Therefore, we decline to apply Thompson’s flexible approach to section 24-10-109(1).
¶ 24 Accordingly, we discern no error in the district court’s order dismissing Thompson’s second amended complaint for failing to provide timely written notice under the CGIA.
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III. Claims Against Otazua in an Individual Capacity
¶ 25 Thompson next contends that the district court erred by dismissing Otazua in his individual capacity because he was not acting in the scope of his employment in kenneling Diego and, therefore, notice under the CGIA was not required. We conclude that an evidentiary hearing is required to establish whether Otazua was acting within the scope of his employment when kenneling Diego at the time of the incident.
A. Standard of Review and Controlling Law
¶ 26 The standard of review is discussed in Part II.A.
¶ 27 The CGIA grants immunity to public employees from injuries “which occurred or [are] alleged in the complaint to have occurred during the performance of [their] duties and within the scope of [their] employment. § 24-10-118(1), C.R.S. 2026. An act of an employee is within the scope of his employment if the work done is assigned to him by his employer, is necessarily incidental to that work, or is customary in the employer’s business. Podboy v. Fraternal Ord. of Police, Denv. Sheriff Lodge 27, 94 P.3d 1226, 1230 (Colo. App. 2004). The determination whether an injury occurred
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within the scope of employment depends on an examination of the totality of the circumstances. Id.
¶ 28 The CGIA requires courts to “definitively resolve all issues of immunity before trial, . . . employ[ing] the [Trinity] procedures.” Finnie, 79 P.3d at 1258. And the court “must necessarily make factual findings to ensure that the court has jurisdiction to hear the case.” City & County of Denver v. Dennis, 2018 CO 37, ¶ 10. When the alleged jurisdictional facts are in dispute in a CGIA case, the district court “should conduct an evidentiary hearing and enter findings of fact.” Tidwell v. City & County of Denver, 83 P.3d 75, 85- 86 (Colo. 2003).
¶ 29 We review the trial court’s decision declining to hold a Trinity hearing for an abuse of discretion. Bilderback v. McNabb, 2020 COA 133, ¶ 10.
B. Analysis
¶ 30 The district court found that Otazua was working within the scope of his employment when the incident occurred. However, we are not convinced that the district court had sufficient admissible, undisputed evidence to make this determination.
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¶ 31 In her second amended complaint, Thompson alleged the following:
• Otazua had an arrangement with the Town by which the Town would compensate Otazua for allowing Diego to be kenneled in his backyard.
• The Town was Diego’s owner and responsible for where he was kenneled.
• In July 2022, when Otazua decided he was leaving EPPD, EPPD ended the K-9 program, no longer wanted Diego, and told Otazua to “figure it out.”
• Otazua knew he had to find a home for Diego or Diego would need to be put down.
¶ 32 Additionally, the record shows that the Town transferred ownership of Diego to the City of Greeley on July 12, 2022, but there is no evidence showing the dog was transferred back to either the Town or Otazua in his official capacity as an officer when Greeley returned the dog to Otazua. And the Town disputes that it owned or had any responsibility for the dog once it transferred ownership to Greeley.
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¶ 33 In his response to Thompson’s second amended complaint, Otazua stated that he was employed with the Town from 2016 to 2022 and that Diego was kenneled at his residence for the time that he worked for the Town. But he did not state or provide any evidence of his precise dates of employment with the Town. Therefore, it is unclear whether Otazua’s kenneling of Diego on the date of the incident occurred within the scope of his employment for the Town (or any police department). Because the district court made no findings concerning these factual assertions, we conclude there are unresolved factual issues that are material to whether the CGIA is applicable to Thompson’s claims brought against Otazua in his individual capacity, requiring an evidentiary hearing. Accordingly, we reverse the district court’s order.
IV. Attorney Fees
¶ 34 The Town requests attorney fees under C.A.R. 39.1 and section 13-17-102(4), C.R.S. 2026, and costs pursuant to C.A.R. 39(a)(1) and (2). The Town argues that Thompson never had a viable legal cause of action against the Town because she never provided a written CGIA notice to the Town and no state law or
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statute allows for an “actual notice” waiver to satisfy the requirements of CGIA.
¶ 35 Under section 13-17-102(4), a party is entitled to its attorney fees when a court finds that an attorney or party brought or defended an action that lacked substantial justification. In re Marriage of Ensminger, 209 P.3d 1163, 1165 (Colo. App. 2008). “A claim or defense lacks substantial justification when it is substantially frivolous, groundless, or vexatious.” In re Marriage of Roddy, 2014 COA 96, ¶ 34.
¶ 36 While Thompson’s appeal was unsuccessful, she presented a rational argument in support of her claims because, at the time of Thompson’s filing, the supreme court had granted certiorari in the Mostellar case to consider whether to apply section 24-10-109(3)’s substantial compliance standard to section 24-10-109(1). See Mostellar, ¶ 26; Janicek v. Obsideo, LLC, 271 P.3d 1133, 1140 (Colo. App. 2011) (“[A] claim is not frivolous ‘if it is meritorious but merely unsuccessful . . . .’” (quoting Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282, 299 (Colo. App. 2009))); see also In re Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be awarded only in clear and unequivocal cases . . . .”). aff’d, 2019 CO 81. And
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because we conclude that Thompson’s appeal did not lack substantial justification under section 13-17-102(4), we decline the Town’s request for fees under C.A.R. 39.1.
V. Disposition
¶ 37 The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.
JUDGE JOHNSON and JUDGE BERGER concur.