Vincent Damon Ditirro v. Matthew J. Sando ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 18, 2022
2022COA94No. 21CA0739, Ditirro v. Sando — Causes of Action — Civil
Action for Deprivation of Rights — Peace Officers —
Indemnification by Peace Officer’s Employer
A division of the court of appeals considers whether Colorado’s
statute that authorizes civil actions against a “peace officer” who
subjects another person to the deprivation of individual rights,
§ 13-21-131, C.R.S. 2021, permits a cause of action against the
employer of a peace officer. The division holds that, under the facts
of this case, the statute does not allow a plaintiff to file a direct
action against the employer of a peace officer.
COLORADO COURT OF APPEALS 2022COA94Court of Appeals No. 21CA0739
Adams County District Court No. 20CV31045
Honorable Jeffrey Smith, Judge
Vincent Damon Ditirro,
Plaintiff-Appellant,
v.
Matthew J. Sando, Caleb Simon, Colorado State Patrol, Commerce City Police
Department, and Adams County Sheriff’s Department,
Defendants-Appellees.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division A
Opinion by JUDGE LIPINSKY
Fox and Rothenberg*, JJ., concur
Announced August 18, 2022
Colorado Christian Defense Counsel, LLC, Jean Pirzadeh, Denver, Colorado, for
Plaintiff-Appellant
Philip J. Weiser, Attorney General, Allison R. Ailer, Senior Assistant Attorney
General, Dmitry B. Vilner, Assistant Attorney General, Denver, Colorado, for
Defendants-Appellees Matthew J. Sando, Caleb Simon, and Colorado State
Patrol
Kissinger & Fellman, P.C., Jonathan M. Abramson, Yulia Nikolaevskaya,
Denver, Colorado, for Defendant-Appellee Commerce City Police Department
Heidi M. Miller, County Attorney, Michael A. Sink, Assistant County Attorney,
Brighton, Colorado, for Defendant-Appellee Adams County Sheriff’s Office
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 In 2020, the Colorado General Assembly created a new cause
of action against “peace officers” for violation of a plaintiff’s civil
rights. Section 13-21-131(1), C.R.S. 2021, allows a plaintiff to sue
a peace officer who, “under color of law, subject[ed] or caus[ed] [the
plaintiff] to be subjected, including failing to intervene,” to the
deprivation of an individual right that “create[s] binding obligations
on government actors secured by the bill of rights” embodied in the
Colorado Constitution.
¶2 The statute further provides that, under certain
circumstances, a peace officer found liable under section
13-21-131(1) is entitled to obtain indemnification from the peace
officer’s employer. Section 13-21-131(4)(a) states that “a peace
officer’s employer shall indemnify its peace officers for any liability
incurred by the peace officer and for any judgment or settlement
entered against the peace officer for claims arising pursuant to this
section,” except where “the peace officer’s employer determines on a
case-by-case basis that the officer did not act upon a good faith and
reasonable belief that the action was lawful.”
¶3 The statute is silent, however, on whether a plaintiff has the
right to assert a direct claim against the employer of a peace officer
1
who violated one of the plaintiff’s rights protected under the state
bill of rights.
¶4 We hold that, under the facts of this case, section 13-21-131
does not allow a plaintiff to file a direct action against the employer
of a peace officer. For this reason, we affirm the district court’s
judgment dismissing the claims of plaintiff, Vincent Damon Ditirro,
against defendants Adams County Sheriff’s Office (Adams County)
and Commerce City Police Department (Commerce City) under
C.R.C.P. 12(b)(5) for failure to state claims upon which relief can be
granted. (Ditirro’s court filings, including his filings in this court,
refer to “Adams County Sheriff’s Department.” The correct name of
that entity is “Adams County Sheriff’s Office.” We use the entity’s
correct name in this opinion.)
¶5 In addition, we reject Ditirro’s other arguments and award
appellate attorney fees to the four original defendants that
requested such a fee award: Commerce City, Colorado State Patrol
(CSP) troopers Matthew J. Sando and Caleb Simon, and CSP. We
also grant Commerce City’s request for an award of its costs
incurred in this appeal.
2
I. Background Facts and Procedural History
¶6 Because the district court dismissed Ditirro’s action under
C.R.C.P. 12(b)(5), we accept as true the following facts pleaded in
his first amended complaint. See Norton v. Rocky Mountain Planned
Parenthood, Inc., 2018 CO 3, ¶ 7, 409 P.3d 331, 334.
¶7 On August 7, 2018, Sando and Simon, troopers with the CSP,
stopped a car that Ditirro was driving on suspicion that he was
under the influence of alcohol. Following a roadside sobriety test,
Sando and Simon arrested Ditirro. During the arrest, Sando and
Simon assaulted Ditirro, causing him physical and mental injuries.
¶8 On August 6, 2020, Ditirro filed a complaint in the Adams
County District Court against, as relevant to this appeal, Adams
County, Commerce City, Sando, Simon, CSP, and “Doe
Defendants.” Ditirro pleaded nine claims — four under the federal
statute that authorizes civil actions for civil rights violations,
42 U.S.C. § 1983, and five under section 13-21-131.
¶9 Commerce City removed the case to the United States District
Court for the District of Colorado (the federal court) on the grounds
that the inclusion of the § 1983 claims in Ditirro’s complaint
allowed the federal court to exercise subject matter jurisdiction over
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the entire case. Commerce City then filed a motion to dismiss
Ditirro’s claims against it for failure to state a claim upon which
relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
¶ 10 While Commerce City’s motion was pending in the federal
court, Ditirro filed a first amended complaint that did not include
the § 1983 claims. The absence of those claims from the amended
complaint deprived the federal court of jurisdiction over the case.
For this reason, after Ditirro amended his complaint, the federal
court remanded the case to the Adams County District Court.
Ditirro refiled his first amended complaint in the Adams County
District Court on January 25, 2021.
¶ 11 In his first amended complaint, Ditirro asserted the five
section 13-21-131 claims he had asserted in his original complaint.
He premised four of those claims on section 13-21-131(1) and one
on the indemnification provision in section 13-21-131(4).
¶ 12 Although Ditirro pleaded that Sando and Simon were “troopers
with the [CSP],” he also alleged that “[e]ach Defendant and Doe
Defendant, Individual Defendant, or Agency Defendant were and are
at all times the agent and principal of each and every Defendant
whether Individual, Doe or Agency Defendant.” He specifically
4
asserted that Sando and Simon “were at the time [of Ditirro’s arrest]
and at all material times the agents of all other Defendants,
including the Doe Defendants and therefore all the Defendants
named herein,” and that all defendants “failed to supervise and
monitor Sando and Simon.” Presumably, “all defendants” included
Adams County and Commerce City.
¶ 13 Adams County and Commerce City moved to dismiss Ditirro’s
claims against them for failure to state claims upon which relief can
be granted under C.R.C.P. 12(b)(5). In his response to those
motions, Ditirro asked the court to grant him leave to amend his
complaint again.
¶ 14 The district court granted Adams County’s and Commerce
City’s dismissal motions on February 26, 2021. In the orders
granting those motions, the court concluded that section 13-21-131
does not authorize a direct cause of action against a peace officer’s
employer. (Alternatively, the court determined that Ditirro’s
allegation that Adams County and Commerce City employed Sando
and Simon did not “pass the plausibility test,” citing Warne v. Hall,
2016 CO 50, ¶ 27, 373 P.3d 588, 596.) The court also denied
Ditirro’s requests for leave to amend his first amended complaint
5
because Ditirro had already amended his complaint once, and the
court concluded that any further efforts to amend Ditirro’s claims
against Adams County and Commerce City would be futile.
¶ 15 Ditirro then filed a separate motion for leave to amend his first
amended complaint. In the motion, he explained his intention to
reassert the same § 1983 claims that he had voluntarily dismissed
when the case was pending in the federal court. The district court
denied Ditirro’s motion on April 23, 2021, and he filed a motion for
reconsideration on May 1, 2021.
¶ 16 Between the filing of Ditirro’s motion for leave to amend and
the court’s ruling on his motion for reconsideration, Ditirro served
Sando and CSP with his first amended complaint. Sando and CSP
responded by filing motions to dismiss under C.R.C.P. 12(b)(5). The
court granted Sando’s motion to dismiss on May 17, 2021,
reasoning that section 13-21-131 does not provide a cause of action
against a peace officer employed by the state.
¶ 17 On May 22, 2021, Ditirro filed a notice of appeal referencing
three orders: the district court’s February 26, 2021, order
dismissing Ditirro’s claims against Adams County and Commerce
City; the April 23, 2021, order denying his motion for leave to
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amend the first amended complaint; and the May 17, 2021, order
denying his motion for reconsideration of the order denying his
motion for leave to amend. Ditirro’s notice of appeal did not refer to
the district court’s May 17, 2021, order dismissing his claims
against Sando.
¶ 18 At the time Ditirro filed his notice of appeal, the district court
had not ruled on CSP’s dismissal motion and Ditirro had not served
Simon. The court granted CSP’s motion to dismiss on July 8, 2021.
Ditirro served Simon after that date. Like the other defendants,
Simon filed a motion to dismiss under C.R.C.P. 12(b)(5). The court
granted Simon’s motion on August 17, 2021.
¶ 19 Ditirro did not appeal the court’s orders granting Sando’s,
CSP’s, and Simon’s respective dismissal motions, but, in his
opening brief, Ditirro asserted that the district court abused its
discretion by granting those motions. He further asserted that the
court abused its discretion by denying him leave to amend the first
amended complaint and by denying his motion for reconsideration.
¶ 20 In their answer briefs, Adams County, Commerce City, Sando,
Simon, and CSP contended that this court lacked subject matter
jurisdiction over the appeal for four reasons: (1) the three orders
7
referenced in the notice of appeal were interlocutory; (2) Ditirro did
not ask the district court to direct the entry of a final judgment as
to the three orders under C.R.C.P. 54(b); (3) Ditirro’s notice of
appeal did not refer to the orders dismissing his claims against
Sando, Simon, and CSP, and this court lacks jurisdiction to
consider those orders; and (4) Ditirro did not file an amended notice
of appeal.
¶ 21 On June 24, 2022, a division of this court entered an order
dismissing the portions of Ditirro’s appeal challenging the district
court’s orders dismissing, for lack of jurisdiction, his claims against
Sando, Simon, and CSP. In the June 24, 2022, order, the division
deferred consideration of Sando’s, Simon’s, and CSP’s requests for
their appellate attorney fees until this division adjudicated
Commerce City’s request for appellate attorney fees. (Adams
County did not request an award of its appellate attorney fees.)
¶ 22 In this opinion, we limit our review to whether the district
court erred by granting Adams County’s and Commerce City’s
motions to dismiss and abused its discretion by denying Ditirro
leave to amend his first amended complaint and Ditirro’s motion for
reconsideration. We also consider Commerce City’s, Sando’s,
8
Simon’s, and CSP’s requests for awards of their appellate attorney
fees, as well as Commerce City’s request for an award of its costs
incurred in this appeal.
II. Analysis
A. Jurisdiction
¶ 23 Because “[a]n appellate court must always be satisfied that it
has jurisdiction to hear an appeal,” Chavez v. Chavez, 2020 COA
70, ¶ 22, 465 P.3d 133, 139, we first consider Adams County and
Commerce City’s contention that this court lacks jurisdiction over
Ditirro’s appeal of the orders granting their motions to dismiss
because his notice of appeal was premature.
¶ 24 “Generally speaking, the court of appeals has jurisdiction only
over appeals from final judgments.” Allison v. Engel, 2017 COA 43,
¶ 23, 395 P.3d 1217, 1222. A final judgment generally is one that
“resolve[s] all claims for relief in a case.” E. Cherry Creek Valley
Water & Sanitation Dist. v. Greeley Irrigation Co., 2015 CO 30M,
¶ 11, 348 P.3d 434, 439; see Harding Glass Co. v. Jones, 640 P.2d
1123, 1125 n.2 (Colo. 1982) (“Absent an applicable exception
provided by rule or statute, an appeal lies only from a final
judgment[,] ‘which ends the particular action in which it is entered,
9
leaving nothing further for the court pronouncing it to do in order to
completely determine the rights of the parties involved in the
proceeding.’” (quoting D.H. v. People, 192 Colo. 542, 544, 561 P.2d
5, 6 (1977))).
¶ 25 Ditirro’s notice of appeal was premature because the three
orders it referenced did not constitute a final judgment. The three
orders did not become final until the district court resolved all
claims against the defendants that were parties when Ditirro filed
his notice of appeal. See Rea v. Corr. Corp. of Am., 2012 COA 11,
¶ 13, 272 P.3d 1143, 1146 (“We conclude that named but unserved
defendants are not litigants for purposes of determining the
appealability of an order under the final judgment rule.”). The final
judgment was entered when the court granted CSP’s motion to
dismiss on July 8, 2021. The three orders became final at that
time, even though the district court had not yet granted Simon’s
motion to dismiss, because Ditirro had not yet served Simon. See
Musick v. Woznicki, 136 P.3d 244, 246 (Colo. 2006). When the
court entered its order dismissing Ditirro’s claims against CSP, it
resolved all of his claims against all of the defendants who had been
served.
10
¶ 26 We further conclude that the district court had jurisdiction to
grant CSP’s motion to dismiss after Ditirro filed his notice of appeal.
¶ 27 Although “[g]enerally, the filing of a notice of appeal shifts
jurisdiction to the appellate court, thus divesting the trial court of
jurisdiction to conduct further substantive action related to the
judgment on appeal,” a trial court is not divested of jurisdiction
“when a party files a premature notice of appeal of a nonfinal
judgment.” Id.¶ 28 Here, because Ditirro’s notice of appeal was premature, the
district court retained jurisdiction to grant CSP’s motion to dismiss
on July 8, 2021. See id. at 246-47. The three orders referenced in
the notice of appeal became final upon the entry of the July 8,
2021, order, which cured the jurisdictional defect in Ditirro’s notice
of appeal. See id. (holding that, if a party files a premature notice of
appeal, an appellate court may exercise jurisdiction over the appeal
once the jurisdictional defect has been cured by entry of a final
judgment); Kidwell v. K-Mart Corp., 942 P.2d 1280, 1281-82 (Colo.
App. 1996) (holding that this court may address the merits of an
appeal if the other parties were not prejudiced by the early filing of
an appellant’s notice of appeal).
11
¶ 29 Because the jurisdictional defect was cured, and Adams
County and Commerce City allege no prejudice from Ditirro’s
premature filing of his notice of appeal, we conclude that we have
jurisdiction to resolve those portions of the appeal not dismissed in
our June 24, 2022, order.
B. Adams County’s and Commerce City’s Motions to Dismiss
¶ 30 Ditirro contends that the district court erred by granting
Adams County’s and Commerce City’s motions to dismiss. He
maintains that section 13-21-131(4) provides a cause of action
against law enforcement entities, and that the district court erred
by ruling otherwise. We disagree.
1. Standard of Review
¶ 31 “We review a C.R.C.P. 12(b)(5) motion to dismiss de novo and
apply the same standards as the trial court.” Norton, ¶ 7, 409 P.3d
at 334. “We accept all factual allegations in the complaint as true,
viewing them in the light most favorable to the plaintiff, but we are
not required to accept bare legal conclusions as true.” 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.” Id.12
¶ 32 We also review questions of statutory interpretation de novo.
Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935
(Colo. 2010). “In determining the meaning of a statute, our central
task is to ascertain and give effect to the intent of the General
Assembly.” Id. “We begin by looking to the express language of the
statute, construing words and phrases according to grammar and
common usage.” Id. “If, after review of the statute’s language, we
conclude that the statute is unambiguous and the intent appears
with reasonable certainty, our analysis is complete.” Id.
2. Applicable Law
¶ 33 Section 13-21-131 authorizes private civil rights actions
against “peace officer[s].” As relevant to this case, a “peace officer”
is “any person employed by a political subdivision of the state
required to be certified by the [Peace Officers Standards and
Training] board.” § 24-31-901(3), C.R.S. 2021.
3. The District Court Did Not Err in
Interpreting Section 13-21-131
¶ 34 The district court granted Adams County’s and Commerce
City’s motions to dismiss on the grounds that “[t]he plain and
unambiguous language of [section] 13-21-131(1) establishes a
13
cause of action against an individual peace officer. It does not
establish a cause of action against the peace officer’s employer such
as [Adams County] or [Commerce City].”
¶ 35 Section 13-21-131(1) provides that a “peace officer” is liable to
the injured party for “the deprivation of any individual rights.” It
does not mention any other individuals or entities that can be held
liable under the statute. Thus, we conclude, based on the plain
language of the statute, that it grants plaintiffs who are similarly
situated to Ditirro the right to assert the specified civil rights
actions only against individual peace officers, and not against the
peace officers’ employers.
¶ 36 The indemnification language in section 13-21-131 makes it
clear that, under the facts of this case, a third party such as Ditirro
may not assert a direct claim against the employer of a peace
officer. See § 13-21-131(4)(a) (stating that “a peace officer’s
employer shall indemnify its peace officers” for violations of the
section, except when the employer “determines on a case-by-case
basis that the officer did not act upon a good faith and reasonable
belief that the action was lawful”). We therefore agree with the
district court that
14
[w]hile a plaintiff may be the beneficiary of
indemnification by the municipality if the
peace officer does not have the funds to pay
the judgment, it does not necessarily follow
that [Ditirro] may sue a peace officer’s
employer to enforce the peace officer’s right to
indemnification.
¶ 37 As applied to the facts of this case, the indemnification
language in section 13-21-131(4) is analogous to the
indemnification language in an insurance policy analyzed in All
Around Transport, Inc. v. Continental Western Insurance Co.,
931 P.2d 552, 556 (Colo. App. 1996). In that case, the division
concluded that
[a]n injured claimant normally cannot
maintain a direct action on the liability policy
protecting the tort-feasor . . . because the
parties to such an insurance contract do not
intend to benefit the general public; their
intent is to benefit the named insured by
protecting him or her against future liability.
Id.¶ 38 The same logic applies to Ditirro’s claims against Adams
County and Commerce City. While section 13-21-131(4) allows a
peace officer to obtain indemnification from the peace officer’s
employer under certain circumstances, it only provides a remedy for
peace officers, at least before the peace officer has incurred any
15
liability, or any judgment or settlement has been entered against
the peace officer, under the statute. (Because the claims that
Ditirro litigated in the Adams County District Court following the
remand by the federal court solely arose under state law, we do not
consider whether our interpretation of section 13-21-131(4) equally
applies to cases filed under 42 U.S.C. § 1983.) We offer no opinion
on whether a plaintiff may bring an action against the employer of a
peace officer after the peace officer has incurred liability under
section 13-21-131(1) or after “any judgment or settlement [is]
entered against the peace officer” for a claim arising under the
statute. § 13-21-131(4)(a).
¶ 39 Accordingly, we conclude that the district court did not err by
dismissing Ditirro’s claims against Adams County and Commerce
City. In light of our analysis, we do not consider the merits of
Ditirro’s claims.
C. Ditirro’s Motion to Amend His First Amended Complaint
¶ 40 Ditirro next asserts that the district court abused its
discretion by denying his motion to amend his first amended
complaint to reassert the § 1983 claims that he voluntarily
16
dismissed while the case was pending in federal court. We
disagree.
¶ 41 Because Ditirro had already amended his complaint, he did
not have the right to amend it a second time without leave of court
or the adverse parties’ written consent. See C.R.C.P. 15(a). The
rules of civil procedure do not grant a plaintiff a second opportunity
to amend the complaint as a matter of right in state court if the
plaintiff has previously amended it. See Kennie v. Nat. Res. Dep’t,
889 N.E.2d 936, 945 (Mass. 2008) (holding that the trial court did
not err by denying the plaintiffs’ motion for leave to amend their
complaint to reassert the same federal claims that the plaintiffs had
included in their original complaint and then “deleted” after the
defendants removed the case to federal court).
¶ 42 Because Ditirro did not have the right to amend his first
amended complaint, the district court had discretion to grant or
deny Ditirro’s motion for leave to amend. See Benton v. Adams,
56 P.3d 81, 85 (Colo. 2002) (“Granting leave to amend is within the
sound discretion of the trial court; our review is for the purpose of
determining whether or not the trial court abused its discretion in
ruling on the motion to amend.”). The court denied Ditirro’s motion
17
after finding that his “change of position on his federal-law claims
can be viewed as dilatory at best, possible bad faith at worst.”
¶ 43 We perceive no abuse of discretion by the court. Ditirro
voluntarily dismissed his § 1983 claims after Commerce City
removed the case to the federal court, and filed a motion to remand
the case to the state court. While “[a] plaintiff is the master of his
complaint,” Suydam v. LFI Fort Pierce, Inc., 2020 COA 144M, ¶ 48,
490 P.3d 930, 939 (quoting Gadeco, LLC v. Grynberg, 2018 CO 22,
¶ 17, 415 P.3d 323, 329), and thus has the right to choose which
claims he or she seeks to pursue in which court, Ditirro’s actions
suggest that he voluntarily dismissed his § 1983 claims to defeat
the federal court’s jurisdiction and to force that court to remand his
case to the Adams County District Court.
¶ 44 The record therefore supports the district court’s finding that
Ditirro’s attempt to reassert his § 1983 claims in state court
following the remand was “dilatory at best, possible bad faith at
worst.” See Benton, 56 P.3d at 86 (“Grounds for trial court denial of
a motion to amend pleadings include undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies in the pleadings
18
via prior amendments, undue prejudice to the opposing party, and
futility of amendment . . . .”).
D. Ditirro’s Motion for Reconsideration
¶ 45 Ditirro next contends that the district court abused its
discretion by denying his motion for reconsideration of its order
denying his motion for leave to amend his first amended complaint.
We disagree.
¶ 46 Because the court did not abuse its discretion by denying
Ditirro’s motion for leave to amend, it likewise did not abuse its
discretion by denying Ditirro’s motion for reconsideration. See
Hytken v. Wake, 68 P.3d 508, 512-13 (Colo. App. 2002) (holding
that, because the trial court properly analyzed an issue, it did not
abuse its discretion by denying a motion for reconsideration of the
issue).
E. Appellate Attorney Fees
¶ 47 After granting Commerce City’s, Sando’s, Simon’s, and CSP’s
motions to dismiss, the district court granted their requests for
awards of attorney fees pursuant to section 13-17-201, C.R.S.
2021. At the time, that statute provided that
19
[i]n all actions brought as a result of a death or
an injury to person or property occasioned by
the tort of any other persons, where any such
action is dismissed on motion of the defendant
prior to trial under rule 12(b) of the Colorado
rules of civil procedure, such defendant shall
have judgment for his reasonable attorney fees
in defending the action.
§ 13-17-201. “Under this section, an award of attorney fees is
mandatory when a trial court dismisses an action under C.R.C.P.
12(b).” Wark v. Bd. of Cnty. Comm’rs, 47 P.3d 711, 717 (Colo. App.
2002). Notably, under that version of the statute, a plaintiff and the
plaintiff’s lawyer are equally liable for attorney fees awards, even
though the lawyer may have been solely responsible for the pleading
deficiencies that led to the dismissal of the action. Moreover, “[a]
party who successfully defends such a dismissal order is also
entitled to recover reasonable attorney fees incurred on appeal.” Id.¶ 48 This case falls squarely within the version of section
13-17-201 in effect at the time the parties filed their appellate
briefs. Ditirro alleged that the defendants’ torts had, directly or
indirectly, resulted in injuries to him, and the district court
dismissed Ditirro’s action under C.R.C.P. 12(b).
20
¶ 49 In light of our affirmance of the district court’s order
dismissing Ditirro’s claims against Commerce City, we are required
to grant Commerce City’s request for appellate attorney fees under
section 13-17-201, as well as its request for appellate costs under
C.A.R. 39(a)(2). And, given our conclusion in the June 24, 2022,
order that we lack jurisdiction over Ditirro’s appeal of the orders
dismissing his claims against Sando, Simon, and CSP, we hold that
those defendants “successfully defend[ed] . . . a dismissal order”
and are therefore also entitled to an award of their respective
appellate attorney fees under section 13-17-201. Wark, 47 P.3d at
717. (Because Sando, Simon, and CSP did not request awards of
their appellate costs, we do not award such costs to them.)
¶ 50 We acknowledge that, in 2022, the General Assembly carved
out an exception to section 13-17-201 for
any claim that is a good faith, non-frivolous
claim filed for the express purpose of
extending, limiting, modifying, or reversing
existing precedent, law, or regulation; or for
the express purpose of establishing the
meaning, lawfulness, or constitutionality of a
law, regulation, or United States or state
constitutional right and the meaning,
lawfulness, or constitutionality has not been
determined by the Colorado supreme court, or
for cases presenting questions under the
21
United States constitution, to the Supreme
Court of the United States.
Ch. 445, sec. 1, § 13-17-201(2), 2022 Colo. Sess. Laws
3131. But the exception only applies where
the party that brought the dismissed claim . . .
pleaded . . . that the dismissed claim was
made for one of the express purposes stated in
this subsection (2) and identified the
precedent, law, or regulation the party seeks to
extend, limit, modify, or reverse, or whether
the issue to be decided is a matter of first
impression.
Id. at 3131-32. The amendment took effect on June 8, 2022, and
therefore does not apply to Ditirro’s claims.
¶ 51 Even if the amendment applied to this case, it would not
benefit Ditirro because his lawyer did not plead that the dismissed
claims were “made for one of the express purposes” stated in the
new section 13-17-201(2). (In the opening brief, Ditirro’s counsel
notes that, “due to the newness of [section 13-21-131] no case
authority exists on the liability of entities under the statute.” No
such language appears in Ditirro’s first amended complaint,
however.)
22
III. Conclusion
¶ 52 The judgment in favor of Adams County and Commerce City is
affirmed. The orders denying Ditirro’s motion for leave to amend
his first amended complaint and denying his motion for
reconsideration are also affirmed. The case is remanded to the
district court for a determination of the amount of reasonable
appellate attorney fees and costs to be awarded, as explained above.
JUDGE FOX and JUDGE ROTHENBERG concur.
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