24CA0519 Vinson v Daniel McCracken 12-05-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0519 Pueblo County District Court No. 23CV30457 Honorable Tayler M. Thomas, Judge
Elizabeth Vinson and Aaron Vinson,
Plaintiffs-Appellants,
v.
Lianna J. Daniel McCracken,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE YUN Kuhn and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 5, 2024
Naylor & Geisel, P.C., Teagan E. Boda, Pueblo, Colorado, for Plaintiffs- Appellants
The Getchey Law Firm, P.C., Kyle A. Getchey, Colorado Springs, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this landlord-tenant dispute, the plaintiffs, Elizabeth
Vinson and Aaron Vinson (the tenants), appeal the district court’s
order dismissing two of their claims against Lianna J. Daniel
McCracken (the landlord) and granting summary judgment against
them on a third. We affirm the court’s summary judgment on their
retaliation claim. But we reverse its ruling dismissing their claims
for breach of contract and breach of the warranty of habitability,
and we remand the case to the district court for further proceedings
on those claims.
I. Background
¶2 The tenants entered into a lease to rent a home (the property)
from the landlord for one year, from August 1, 2021, to July 31,
2022. Among other provisions, the lease stated that the landlord
would provide appliances including a dishwasher and microwave
and that, if the property were “deemed uninhabitable due to
damage beyond reasonable repair,” the tenants could terminate the
lease.
¶3 According to the complaint and the more definite statement
requested and filed under C.R.C.P. 12(e), the tenants discovered
after moving in that the landlord had not provided a microwave or
1 dishwasher. The tenants also found multiple unsanitary conditions
at the property, including a broken pipe under the kitchen sink
draining into a moldy bucket, “a hole full of some sort of debris” in
the bathroom, garbage on the lawn, and a nonfunctional tub drain.
Although the tenants made repeated requests for repairs and
cleaning, the landlord did not respond to a majority of these
requests. Within a month of moving in, the tenants and their
children developed rashes, leading to multiple medical visits and
the eventual discovery that the property was infested with bed bugs.
The landlord hired a company to treat the infestation, but the
treatments were unsuccessful. When the landlord disputed the
need for additional treatments, even as the tenants continued to
find “live bugs in their beds,” the tenants reported the
uninhabitable condition of the property to the Pueblo Department of
Public Health and Environment (the Department). In May 2022, a
Department inspector confirmed the presence of bed bugs and
noted several other safety risks at the property, including broken
stairs and a smell of sewage coming from the bathroom sink.
¶4 The tenants decided to rent another home in June 2022 but
were delayed in moving out because their personal belongings first
2 had to be treated to avoid spreading the bed bug infestation to their
new home. On August 10, 2022, ten days after the lease expired,
the landlord filed an eviction complaint against the tenants. A week
later, when the landlord failed to appear in eviction court, the
complaint was dismissed for failure to prosecute. The tenants
moved out on August 25, 2022.
¶5 A year later, the tenants filed suit against the landlord alleging
three claims: breach of contract, breach of the warranty of
habitability, and retaliation. The landlord moved for a more definite
statement under Rule 12(e), explaining that the complaint did not
make clear the “factual and legal basis” of the tenants’ claims. The
district court granted the landlord’s motion, and the tenants
provided a more definite statement. The landlord then moved to
dismiss the tenants’ breach of contract and warranty of habitability
claims under Rule 12(b)(5) and for summary judgment on the
tenants’ retaliation claim under C.R.C.P. 56. The district court
granted the landlord’s motions in their entirety.
¶6 The tenants now appeal.
3 II. Analysis
¶7 The tenants contend that the district court erred by
(1) dismissing their breach of contract claim; (2) dismissing their
warranty of habitability claim; (3) granting summary judgment to
the landlord on their retaliation claim; (4) “treating the motion to
dismiss” the first two claims “the same as the motion for summary
judgment” on the third claim; and (5) granting the landlord’s
motions to dismiss and for summary judgment when the landlord
failed to confer with the tenants before filing. We address each
contention in turn.
A. Breach of Contract
¶8 The tenants contend that the district court erred by dismissing
their breach of contract claim under Rule 12(b)(5) for failure to state
a claim upon which relief can be granted. We agree.
1. Standard of Review
¶9 “We view with disfavor a C.R.C.P. 12(b)(5) motion to dismiss
for failure to state a claim.” Bly v. Story, 241 P.3d 529, 533 (Colo.
2010). We review such motions de novo and apply the same
standards as the trial court. Ditirro v. Sando, 2022 COA 94, ¶ 31.
4 ¶ 10 To survive a Rule 12(b)(5) motion to dismiss, “a complaint
must state a claim that is plausible on its face.” Potts v. Gaia
Child., LLC, 2024 COA 58, ¶ 15 (citing Warne v. Hall, 2016 CO 50,
¶ 24). “A complaint is plausible on its face if the plaintiff has
pleaded facts that permit a reasonable inference that the defendant
is liable for the alleged misconduct.” Id. The reviewing court must
accept all allegations in the complaint as true and view them in the
light most favorable to the plaintiff. Id. “We will uphold the grant of
a C.R.C.P. 12(b)(5) motion only when the plaintiff’s factual
allegations do not, as a matter of law, support the claim for relief.”
Ditirro, ¶ 31 (citation omitted).
2. Law and Discussion
¶ 11 To prevail on a breach of contract claim, a plaintiff must prove
“(1) the existence of a contract, (2) the plaintiff’s performance of the
contract or justification for nonperformance, (3) the defendant’s
failure to perform the contract, and (4) the plaintiff’s damages as a
result of the defendant’s failure to perform the contract. Univ. of
Denver v. Doe, 2024 CO 27, ¶ 46.
¶ 12 The district court found that the tenants’ “[c]omplaint and
[m]ore [d]efinite [s]tatement do not set forth a specific provision of
5 their lease that [the landlord] allegedly breached, and for which they
incurred damages.” But in both their complaint and more definite
statement, the tenants alleged that the lease required the landlord
to provide them with a microwave and dishwasher. They alleged
that “[a] microwave was not provided” and that, when they bought
their own microwave, “faulty wiring in the home caused the
microwave to be destroyed,” necessitating their purchase of “a
second microwave and surge protector.” They further alleged that
the landlord did not provide a dishwasher “until several months
after [the tenants] had moved into the property.”
¶ 13 Additionally, they alleged that “the largest problem was the
cleanliness and upkeep of the property,” that the landlord “had a
duty . . . to provide habitable housing for [the] tenants,” and that
“[t]he condition of [the] property when the [tenants] moved in and
throughout their tenancy violated this duty.” Although they did not
refer to it by name, the lease contained a provision stating that
“[t]he Landlord shall be responsible for repairs to the interior and
exterior of the building.” In their more definite statement, the
tenants alleged that they “made repeated requests for repairs and
cleaning” and that the landlord “did not respond to a majority of
6 these requests.” They further alleged damages resulting from the
condition of the property, including multiple medical visits (with
dates provided for eleven specific instances) and the cost of hiring
an exterminator to treat their personal belongings so that they
could move out.
¶ 14 Accordingly, contrary to the district court’s finding, we
conclude that the tenants adequately alleged a breach of the lease
and resulting damages.
¶ 15 The district court also found that the tenants “do not dispute”
that they missed one or more rent payments and that they thus “set
forth no facts to establish that they performed under the lease.”
But the second element of a breach of contract claim is the
plaintiff’s performance of the contract “or justification for
nonperformance.” Univ. of Denver, ¶ 46. As the district court itself
noted, “There is no question [that the tenants’] allegations of bed
bugs . . . and other issues of safety and uncleanliness raise
significant concerns about the habitability of the property.”
Because the lease contained a provision that gave the tenants the
right to terminate due to the uninhabitable condition of the
property, their nonperformance may have been justified. Therefore,
7 contrary to the district court’s findings, the instances of
nonpayment are not necessarily fatal to their breach of contract
claim.
¶ 16 We thus conclude that, taking all the allegations in the
complaint as true and viewing them in the light most favorable to
the tenants, the tenants’ breach of contract claim was plausible on
its face. See Potts, ¶ 15. Accordingly, we reverse the district court’s
dismissal of this claim under Rule 12(b)(5).
B. Breach of the Warranty of Habitability
¶ 17 The tenants contend that the district court erred by dismissing
their warranty of habitability claim. We agree.
¶ 18 As described above, we review a district court’s ruling on a
Rule 12(b)(5) motion to dismiss de novo, applying the same
standards as the district court. Ditirro, ¶ 31.
¶ 19 In her motion for a more definite statement, the landlord
explained that the complaint did not make clear whether the
warranty of habitability claim arose under the lease, under the
warranty of habitability statute, §§ 38-12-501 to -512, C.R.S.
8 2021,1 or under the bed bugs in residential premises statute,
§§ 38-12-1001 to -1007, C.R.S. 2024. She further noted that the
tenants had not alleged “a date [they] provided notice” to the
landlord that the property was uninhabitable or a failure by the
landlord to address the uninhabitable condition within the
“statutorily prescribed timeline.” Accordingly, the landlord could
not discern the legal basis for the warranty of habitability claim and
could not prepare an answer.
¶ 20 In their more definite statement, the tenants clarified that they
were bringing the claim under the warranty of habitability statute.
They alleged that the landlord “indicated repeatedly that she
preferred phone calls over other communications” and that they
“informed [the landlord] of the uninhabitable condition of the
property on numerous occasions.” They did not indicate the dates
on which they provided notice or allege how long it took the
landlord to respond.
1 The warranty of habitability statute has been amended several
times. The 2021 version of the statute was in effect at the time of the lease and the alleged breach of the warranty of habitability. We therefore refer to the 2021 version throughout this opinion.
9 ¶ 21 Under the statute, an element of a breach of the warranty of
habitability is that “[t]he landlord has received reasonably complete
written or electronic notice of the [uninhabitable condition of the
property] and failed to commence remedial action by employing
reasonable efforts within” either twenty-four or ninety-six hours,
depending on the nature of the uninhabitable condition.
§ 38-12-503(2)(b), C.R.S. 2021. “A tenant who gives a landlord
electronic notice of a condition shall send such notice only to the
e-mail address, phone number, or electronic portal specified by the
landlord in the rental agreement for communications.”2
§ 38-12-503(2.3). “Electronic notice” means notice by electronic
mail or an electronic portal or management communications system
that is available to both a landlord and a tenant. § 38-12-502(4),
C.R.S. 2021.
¶ 22 The district court found that the tenants indicated they
communicated with the landlord via phone calls and failed to allege
they provided the landlord written or electronic notice, as required
under the statute. Thus,
2 The landlord provided an email address and phone number in the
10 [w]ithout any facts to support sufficient compliance with the statutory notice requirements[,] the landlord cannot be found to have breached the warranty of habitability. Here, because [the tenants] have not established sufficient notice under the habitability statute, a mandatory element, the claim for breach of warranty of habitability fails the basic plausibility test.
¶ 23 We disagree with the district court’s analysis. Although the
landlord “indicated repeatedly that she preferred phone calls over
other communications,” it is not at all clear that the
communications took place only by phone call. Instead, in the
more definite statement, the tenants alleged that the landlord
communicated with them and others on several occasions by text
message or other electronic communication. More importantly,
they alleged that they “informed [the landlord] of the uninhabitable
condition of the property on numerous occasions”; that they “made
repeated requests for repairs and cleaning”; and that they gave the
landlord “proper notice under C.R.S. § 38-12-503(2)(b), which states
that notice can be either written or electronic, and [the] landlord
failed to commence remedial actions in the correct time period.”
Taking all of the tenants’ allegations as true and viewing them in
the light most favorable to them, see Potts, ¶ 15, we cannot say that
11 their communications with the landlord took place only by phone
call.
¶ 24 We therefore conclude that the district court erred by
dismissing the tenants’ warranty of habitability claim under Rule
12(b)(5). The tenants did state a claim for breach of the warranty of
habitability under section 38-12-503 that was plausible on its face.
If the evidence later shows that the tenants did not give adequate
“written or electronic notice” of the uninhabitable condition of the
property, the landlord may file a motion for summary judgment.
But it was premature for the district court to conclude under Rule
12(b)(5) that no such notice was given.
C. Retaliation
¶ 25 The tenants contend that the district court erred by granting
summary judgment to the landlord on their retaliation claim. We
disagree.
¶ 26 We review a district court’s order granting summary judgment
de novo. Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 19.
“Summary judgment is appropriate only if ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
12 together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.’” Id. (quoting C.R.C.P. 56(c)).
¶ 27 “The moving party bears the initial burden of showing no
genuine issue of material fact exists; the burden then shifts to the
nonmoving party to establish a triable issue of fact.” Id. at ¶ 20. All
doubts must be resolved against the moving party, and the
nonmoving party “must receive the benefit of all favorable
inferences that may be reasonably drawn from the undisputed
facts.” Id. (quoting Tapley v. Golden Big O Tires, 676 P.2d 676, 678
(Colo. 1983)).
¶ 28 In their more definite statement, the tenants alleged that the
landlord “filed an eviction [action] and added late fees” in retaliation
for their reporting the uninhabitable condition of the property to the
Department. Those were the only retaliatory actions alleged. The
tenants indicated that they were bringing this claim under the
retaliation section of the lease and section 38-12-509, C.R.S. 2021.
¶ 29 The retaliation section of the lease provides that
13 [t]he [l]andlord is prohibited from making any type of retaliatory acts against the [t]enant(s) including but not limited to restricting access to the [p]remises, decreasing or cancelling services or utilities, failure to repair appliances or fixtures, or any other type of act that could be considered unjustified.
¶ 30 Section 38-12-509, in turn, provides that “[a] landlord shall
not retaliate against a tenant by increasing rent or decreasing
services or by bringing or threatening to bring an action for
possession” in response to the tenant’s making “a good faith
complaint . . . to a governmental agency” alleging an uninhabitable
condition. § 38-12-509(1)(a). If a landlord retaliates against a
tenant, “the tenant may terminate the rental agreement” and
recover damages. § 38-12-509(2).
¶ 31 It is undisputed that the lease expired on July 31, 2022, and
that the landlord filed the eviction complaint on August 10, 2022.
Because the only retaliatory actions the tenants alleged were the
eviction complaint and late fees — and not, for example, a
retaliatory refusal to clean or repair the property after the tenants
made their report to the Department but before the lease expired —
the tenants have not explained how the landlord violated the
retaliation section of the lease. Further, on appeal, the tenants do
14 not renew their argument that the landlord violated the retaliation
section of the lease, relying instead on section 38-12-509. We thus
consider this argument abandoned. See Gonzales v. Windlan, 2014
COA 176, ¶ 32 n.1 (appellate court will not address claims raised
below but not reasserted on appeal).
¶ 32 Under section 38-12-509(2), the tenant’s remedy for a
retaliatory eviction is to “terminate the rental agreement.” The
statute thus contemplates a landlord’s “bringing or threatening to
bring an action for possession” while a rental agreement is in effect.
§ 38-12-509(1). Here, the landlord submitted exhibits with her
motion for summary judgment showing that she served the tenants
with a demand for unpaid rent on July 12, 2022, and filed for
eviction on August 10, after the lease expired. In their response,
the tenants did not dispute that they were behind on rent or that
the landlord did not file the eviction complaint until after the lease
expired. Rather, they stated that “[w]hen [the landlord’s] actions in
filing the eviction are put into full view of all of their other actions
up to that point, it paints a picture of retaliation.”
¶ 33 As the district court found, the tenants’ response was
insufficient to create a genuine issue of material fact regarding their
15 retaliation claim. See People in Interest of S.N. v. S.N., 2014 CO 64,
¶ 17, (“[R]eliance upon allegations or denials in the pleadings will
not suffice when faced with an affidavit affirmatively showing the
absence of a triable issue of material fact.” (quoting Ginter v. Palmer
& Co., 585 P.2d 583, 585 (Colo. 1978))). Because we agree with the
district court that there was no genuine issue of material fact and
that the landlord was within her rights to pursue eviction after the
tenants overstayed the lease and did not pay rent, we conclude that
the court did not err by granting summary judgment for the
landlord on the tenants’ retaliation claim.
D. Treating the Motions the Same
¶ 34 The tenants contend that the district court erred by “treating
the motion to dismiss” the breach of contract and warranty of
habitability claims “the same as the motion for summary judgment”
on the retaliation claim “without giving proper notice.” Specifically,
they argue that “all three claims were ruled upon in the same
manner and include[d] [the consideration of] any affidavits written
by [the landlord] outside of the pleadings.” But that is not what
happened. In its order, the district court dismissed the breach of
contract and warranty of habitability claims under Rule 12(b)(5)
16 and granted summary judgment under Rule 56(h) on the retaliation
claim. The only affidavit submitted by the landlord pertained to her
filing for eviction and, thus, to the tenants’ retaliation claim. There
is no indication in the district court’s order that it considered the
affidavit for any other purpose. We thus discern no error.
E. Failure to Confer
¶ 35 The tenants contend that the district court reversibly erred by
granting the landlord’s motions to dismiss and for summary
judgment when the landlord failed to confer with the tenants before
filing. We disagree.
¶ 36 C.R.C.P. 121, section 1-15(8), provides that, “[u]nless a statute
or rule governing the motion provides that it may be filed without
notice, moving counsel . . . shall confer with opposing counsel . . .
before filing a motion.” However, as the district court noted, the
committee comments to this section indicate that the duty to confer
is not required in all cases, although “[i]f there has been no
conference, the reason why must be stated.” C.R.C.P. 121,
§ 1-15(8) cmt. 2. It is undisputed that the landlord’s counsel did
not confer with the tenants’ counsel and did not state the reason
why there had been no conference.
17 ¶ 37 Under the harmless error standard, we will not disturb a
judgment unless a court’s error affected the substantial rights of
the parties. C.R.C.P. 61. An error affects a substantial right only if
“it can be said with fair assurance that the error substantially
influenced the outcome of the case or impaired the basic fairness of
the trial itself.” Bly, 241 P.3d at 535 (quoting Banek v. Thomas,
733 P.2d 1171, 1178 (Colo. 1986)). Here, the district court found
that, because the landlord’s dispositive motions surely would have
been opposed, “conferral would have been fruitless.” We agree and
thus conclude that any error in the court’s failure to enforce the
conferral requirement was harmless.
F. Attorney Fees
¶ 38 The landlord requests her appellate attorney fees under
section 13-17-102(2), C.R.S. 2024, on the grounds that the tenants’
appeal “lacked substantial justification.” An argument lacks
substantial justification if it is “substantially frivolous, substantially
groundless, or substantially vexatious.” § 13-17-102(9)(a). But
because we agree with the tenants’ first two contentions, we cannot
conclude that the appeal lacked substantial justification, and we
decline to award appellate attorney fees.
18 III. Disposition
¶ 39 The district court’s summary judgment on the tenants’
retaliation claim is affirmed. Its dismissal of their breach of
contract and warranty of habitability claims is reversed, and the
case is remanded to the district court for further proceedings on
those claims.
JUDGE KUHN and JUDGE BERGER concur.