Adams County Housing Authority v. Rebekah Panzlau

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
December 29, 2022
2022COA148No. 21CA1972, Adams Cnty. Housing v. Panzlau — Judges —
Code of Judicial Conduct — Disqualification — Judge’s Former
Law Firm; Civil Procedure — Change of Judge — Stay of
Proceedings — Successive Motions
A division of the court of appeals decides three issues of first
impression: (a) a judge is not required to recuse from a case
involving a previous client of the judge’s former law firm, where the
judge was not involved with the client’s matters while at the firm
and the case pending before the judge is unrelated to the matters in
which the law firm represented the client; (b) a judge is not required
to stay the proceedings under C.R.C.P. 97 when a party files a
successive recusal motion that rests on the same factual allegations
as the party’s prior unsuccessful motion to recuse; and (c) under
Warne v. Hall, 2016 CO 50, 373 P.3d 588, a proponent of a claim
must plead facts that, if true, would satisfy each element of the
claim.
Accordingly, the division affirms the district court’s denial of
the appellant’s recusal motions, its decision not to stay the
proceedings during the pendency of the third recusal motion, and
its dismissal of the appellant’s counterclaims.
COLORADO COURT OF APPEALS 2022COA148Court of Appeals No. 21CA1972
Adams County District Court No. 21CV30317
Honorable Kyle Seedorf, Judge
Adams County Housing Authority, d/b/a Maiker Housing Partners,
Plaintiff-Appellee,
v.
Rebekah Panzlau,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division A
Opinion by JUDGE LIPINSKY
Fox and Freyre, JJ., concur
Announced December 29, 2022
Fairfield and Woods, P.C., Colin A. Walker, Lee Katherine Goldstein, Denver,
Colorado, for Plaintiff-Appellee
Rebekah Panzlau, Pro Se
¶1 Defendant, Rebekah Panzlau, appeals the district court’s
judgment dismissing the negligence, breach of contract, and
constructive eviction counterclaims she asserted against plaintiff,
Adams County Housing Authority, d/b/a Maiker Housing Partners.
We affirm.
I. Background
¶2 Maiker is a public body created pursuant to the Colorado
statutes governing county housing authorities, sections 29-4-501 to
-509, C.R.S. 2022. It is charged with providing affordable housing
and services to low-income residents of Adams County.
¶3 Panzlau rented an apartment from Maiker. After Panzlau
notified Maiker of a water leak in her apartment, Maiker paid for
Panzlau to stay at a hotel while it repaired the leak. A few days
later, Panzlau also complained to Maiker about water damage and
mold in the apartment. Maiker engaged a contractor that
submitted a report detailing an elevated level of mold spores in
Panzlau’s apartment.
¶4 Pursuant to the terms of Panzlau’s lease, Maiker asked
Panzlau to vacate the apartment so that it could perform repairs
1
and remediate the mold. Although Panzlau continued to stay in the
hotel, she refused to remove her belongings from the apartment.
¶5 Maiker filed a forcible entry and detainer (FED) action against
Panzlau to obtain legal authorization to remove her belongings from
her apartment so it could make repairs and perform the necessary
remediation there. Acting pro se, Panzlau filed what we construe as
an answer and counterclaims (first counterclaims). In the first
counterclaims, Panzlau alleged, among other facts, that the mold
contamination in her apartment had injured and sickened her. In
addition, over the course of the litigation, Panzlau filed three
motions, premised on the same factual allegations, for recusal of
the trial judge. After the court entered an order for possession in
favor of Maiker, Panzlau amended her counterclaims. We describe
the case’s procedural history in further detail below.
¶6 Panzlau appeals the court’s final judgment dated October 22,
2021, dismissing all of her counterclaims that remained pending at
the time.
II. Analysis
¶7 Panzlau raises ten issues on appeal. We consolidate them as
follows: (1) issues pertaining to the district judge’s denial of
2
Panzlau’s recusal motions; (2) issues pertaining to the dismissal of
Panzlau’s counterclaims; and (3) miscellaneous issues.
A. Self-Represented Litigants
¶8 Because Panzlau has represented herself throughout these
proceedings, we must interpret her pleadings and motions liberally.
See Minshall v. Johnston, 2018 COA 44, ¶ 21, 417 P.3d 957, 961.
However, self-represented parties such as Panzlau must follow the
same procedural rules as parties represented by counsel, and their
lack of an attorney does not excuse their noncompliance with the
procedural rules and other applicable law. See In re Marriage of
Wright, 2020 COA 11, ¶ 33, 459 P.3d 757, 764.
B. The Court’s Denial of Panzlau’s Recusal Motions
1. Additional Facts Pertaining to the Recusal Motions
¶9 At the hearing on Maiker’s request for an order of possession,
Panzlau orally moved for recusal of the district judge (first recusal
motion) on the grounds that the judge’s former law firm (the firm)
had represented Adams County Housing Authority in a prior,
unrelated case. The judge orally denied the motion, explaining that,
while at the firm, he had not been involved with any case in which
the Authority was a party.
3
¶ 10 Two days later, Panzlau filed a written motion to recuse the
judge (second recusal motion), again based on the judge’s prior
relationship with the firm. Specifically, Panzlau asserted that the
judge was required to recuse “due to [an] actual or perceived
conflict of interest according to Colo. R. Civ. P. 97.”
¶ 11 The judge denied the second recusal motion in a written order
on April 5, 2021. In that order, the judge noted that he had
addressed the merits of the second recusal motion when he denied
Panzlau’s first recusal motion. He explained that he
was unaware of [the firm’s] representation, had
not served as [the Authority’s] counsel himself,
and determined that, even if a prior employer
had represented [the Authority], [the judge]
has no interest or prejudice or any relationship
or connection with [the Authority] such as to
render it improper for him to sit on the matter.
¶ 12 The judge further noted that the second recusal motion failed
even if he viewed it as a motion for reconsideration of his ruling on
the first recusal motion. The court explained that Panzlau had not
set forth any “legal authority supporting a request for
reconsideration or other relief” and, moreover, had not “include[d] a
certificate of conferral with opposing counsel, as required under
C.R.C.P. 121, section 1-15(8).”
4
¶ 13 Panzlau filed another motion to recuse the judge (third recusal
motion) on April 15, 2021. Although Panzlau did not present new
factual grounds for disqualification in the third recusal motion, she
cited new legal authorities, including Rule 2.11 of the Colorado
Code of Judicial Conduct and Rule 1.2 of the American Bar
Association’s Model Code of Judicial Conduct.
¶ 14 The district court did not stay the proceedings upon the filing
of the third recusal motion and, during the pendency of the motion,
the parties continued to submit filings to the court. For example,
on April 16, 2021, Panzlau filed an amended answer and
counterclaims (second counterclaims) and a response to Maiker’s
pending request for an award of its attorney fees. (Maiker asserted
that it was entitled to an attorney fee award under the FED statute,
section 13-40-123, C.R.S. 2022, and under the lease, which
provides that “[u]nless a party is seeking exemplary, punitive,
sentimental, or personal-injury damages, the court shall award the
prevailing party from the non-prevailing party attorney’s fees and
other litigation costs.” Maiker also argued that it was entitled to
recover attorney fees under section 13-17-102, C.R.S. 2022,
because Panzlau’s defense against the FED proceeding lacked
5
substantial justification.) In addition, Maiker filed a reply in
support of its attorney fee motion on April 20, 2021; a motion for
dismissal of certain of the second counterclaims on April 30, 2021,
(discussed in further detail below); and a response to the third
recusal motion on May 6, 2021. On May 12, 2021, the court
entered an order granting Maiker’s motion for attorney fees, in part.
(Although Panzlau appears to present arguments regarding the
attorney fee award in this appeal, she did not timely appeal this
order. For this reason, we do not address the merits of her
argument regarding the award of attorney fees.)
¶ 15 The district court did not rule on Panzlau’s third recusal
motion until May 14, 2021. Although the court denied it, the court
did not award Maiker attorney fees for Panzlau’s filing of the
motion, as Maiker requested, because the court found that the third
recusal motion was not substantially frivolous, groundless, or
vexatious.
¶ 16 On appeal, Panzlau raises two issues concerning her recusal
motions. She asserts that the district judge erred by (1) failing to
recuse himself and (2) failing to stay the proceedings while the third
motion to recuse was pending. (All of Panzlau’s arguments on
6
appeal rest to some extent on her contention that the district judge
was biased against her. Thus, our analysis of Panzlau’s recusal
motions also applies to the allegations of judicial bias underlying
her other arguments.)
2. Standard of Review
¶ 17 We will not reverse a judge’s decision on whether to disqualify
himself or herself in a civil case unless the judge abused his or her
discretion. Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 12, 482 P.3d
502, 508. “A trial court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, unfair, or based on a
misapplication of the law.” Black v. Black, 2020 COA 64M, ¶ 118,
482 P.3d 460, 485. Additionally, we review the sufficiency of a
motion to disqualify de novo. Bocian, ¶ 12, 482 P.3d at 509.
3. Legal Principles
¶ 18 If the judge is “interested or prejudiced, or has been of counsel
for any party, . . . or is so related or connected with any party . . .
as to render it improper for him to sit on the . . . proceeding,” the
judge shall be disqualified. C.R.C.P. 97. “[D]isqualification is
appropriate when the motion and supporting affidavits allege
sufficient facts from which it may reasonably be inferred that the
7
judge is prejudiced or biased, or appears to be prejudiced or biased,
against a party . . . .” Bocian, ¶ 13, 482 P.3d at 509. The purpose
behind disqualifying a judge who has the appearance of partiality is
“to protect public confidence in the judiciary.” People in Interest of
A.G., 262 P.3d 646, 650 (Colo. 2011). Upon the filing of a motion
for disqualification, “all other proceedings in the case shall be
suspended until a ruling is made thereon.” C.R.C.P. 97.
4. The Judge Was Not Required to Recuse
¶ 19 Panzlau’s three recusal motions rested on the same factual
allegations — that the judge “had previously been a lawyer at a law
firm” that “had previously represented [the Authority]” in a different
matter, and that the judge was an “employee at this firm at the time
[that matter] was represented.” On appeal, Panzlau additionally
alleges that the judge “concealed his prior relationship with
[opposing counsel] via his charity ‘Bright by Three’ and failed to
truthfully elucidate that previous relationship for the record” when
Panzlau questioned the judge about potential conflicts.
¶ 20 As relevant here, the Colorado Code of Judicial Conduct
provides that “[a] judge should disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be
8
questioned, including but not limited to the following
circumstances: . . . [t]he judge . . . was associated with a lawyer
who participated substantially as a lawyer in the matter during
such association.” C.J.C. 2.11(A)(5)(a). But the Code is “intended
to protect public confidence in the judiciary rather than to protect
the individual rights of litigants.” A.G., 262 P.3d at 650. C.R.C.P.
97, which provides the only legal basis for disqualification of a
judge, does not refer to an “appearance of impropriety.” “[I]n the
absence of evidence demonstrating actual judicial bias or prejudice,
a trial judge’s potential violation of these rules does not mandate
reversal.” Richardson v. People, 2020 CO 46, ¶ 39, 481 P.3d 1, 8.
¶ 21 Maiker acknowledges that the Colorado appellate courts have
not addressed whether a judge must be disqualified from a case in
which the judge’s former employer, but not the judge himself or
herself, represented one of the parties in an unrelated case at the
time the judge worked for the employer.
¶ 22 We join other jurisdictions in holding that, under these
circumstances, the former employer’s representation of the party
“with regard to a matter unrelated to litigation before [the judge]
does not automatically require recusal.” Nat’l Auto Brokers v. Gen.
9
Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978); see also Martin v.
Monumental Life Ins. Co., 240 F.3d 223, 235-36 (3d Cir. 2001)
(holding that recusal is not required in a case where a party is
represented by a firm of which the judge was a partner several
years earlier); In re Wilhite, 298 S.W.3d 754, 756 (Tex. App. 2009)
(upholding the denial of a motion to recuse in an asbestos case
where the judge had been a partner at a law firm that had
represented the defendant in asbestos litigation several years
before, but in which the judge had not been involved).
¶ 23 Therefore, here, the judge was not automatically required to
recuse. Contrary to Panzlau’s assertion, the judge’s impartiality
cannot “reasonably be questioned” based on the judge’s prior
relationship to the firm because the firm did not represent the
Authority in “the matter” currently before the court. See C.J.C.
2.11(A)(5)(a). Additionally, because the judge asserted that “he was
not aware the law firm he previously worked for had represented
[the Authority] until [Panzlau] first moved for recusal,” the earlier
litigation involved a different subject matter (personal injury) from
the subject matter of this case, “the case was resolved over five
years before this case was filed,” and the judge “was not involved in
10
it,” the judge did not abuse his discretion by denying Panzlau’s
recusal motions. (The district judge could also have properly denied
all three of Panzlau’s recusal motions based on her failure to tender
the supporting affidavit required under C.R.C.P. 97.)
¶ 24 Lastly, Panzlau did not raise in the district court the alleged
conflict concerning the judge’s “Bright by Three” charity as a basis
for recusal, so we will not address such alleged conflict. See In re
Estate of Ramstetter, 2016 COA 81, ¶ 64, 411 P.3d 1043, 1053.
5. The Judge Was Not Required to Stay the Proceedings Upon the
Filing of the Third Recusal Motion
¶ 25 Panzlau asserts that, under Rule 97, once she filed the third
recusal motion, the district judge was required to stay the
proceedings until he ruled on the motion. We are not convinced
that the rule requires a judge to stay the proceedings when a party
files repetitive recusal motions that rest on the same factual
allegations.
¶ 26 A division of this court addressed an analogous issue involving
multiple competency motions in People v. Rodriguez, 2022 COA 98,
___ P.3d ___. There, the division held that “a successive
competency motion that does not raise new indicia of incompetency
11
regarding a defendant who was previously examined and
determined to be competent” does not “trigger the procedures”
ordinarily required when a competency motion is filed — beginning
with an order for a competency evaluation. Id. at ¶ 55, ___ P.3d at
___. The division explained that “[s]tripping district courts of their
discretion to decline to order a competency evaluation where no
such evaluation is warranted would allow lawyers to delay trials . . .
by filing competency motion after competency motion.” Id. at ¶ 57,
___ P.3d at ___.
¶ 27 We hold that the same logic applies here and therefore hold
that Rule 97 does not require judges to stay the proceedings when a
party files a successive recusal motion that rests on the same
factual underpinnings as the party’s prior unsuccessful motion to
recuse. Although Panzlau referenced new legal authorities in her
second and third recusal motions, all three of her recusal motions
arose from the judge’s former law firm’s representation of the
Authority in unrelated matters when the judge worked at the firm.
Because the three recusal motions rested on the same alleged facts,
the district judge was not required to stay the proceedings when
Panzlau filed the third recusal motion. The judge did not err by
12
staying the proceedings for the further reason that, as noted in Part
II.B.4, Panzlau failed to support the third recusal motion with the
required affidavit. See C.R.C.P. 97.
C. The Court’s Dismissal of Panzlau’s Counterclaims
1. Additional Facts Concerning Panzlau’s Counterclaims
¶ 28 On April 30, 2021, Maiker filed a motion for dismissal of
certain of Panzlau’s second counterclaims and to strike or, in the
alternative, for a more definite statement regarding those
counterclaims. The court granted the motion, in part. It ordered
Panzlau to “amend her counterclaims of negligence, breach of
contract, and constructive eviction in substantial conformance with
the pleading standards of Warne [v. Hall, 2016 CO 50, 373 P.3d
588],” and to “state her claims clearly and in separately-numbered
counts in compliance with C.R.C.P. 12(e).” The court dismissed all
of Panzlau’s other counterclaims for failure to state claims upon
which relief can be granted under Rule 12(b)(5).
¶ 29 Panzlau filed amended counterclaims for negligence, breach of
contract, and constructive eviction (the third counterclaims) on
June 7, 2021.
13
¶ 30 Maiker moved to dismiss the third counterclaims, arguing that
Panzlau’s “claims for negligence and breach of contract . . . are
preempted by the Colorado Premises Liability Act, [§ 13-21-115(2),
C.R.S. 2022,]” and that her “constructive eviction [c]ounterclaim
. . . does not state a claim pursuant to the pleading[] standards of
Warne.”
¶ 31 On July 27, 2021, Panzlau filed a response to Maiker’s motion
to dismiss the third counterclaims. Panzlau’s July 27 filing
included a “statement” of her counterclaims. That “statement”
referred only to counterclaims for negligence arising under the
Premises Liability Act and for constructive eviction. Notably, the
July 27 filing did not refer to the breach of contract counterclaim
that Panzlau had pleaded in the first, second, and third
counterclaims.
¶ 32 We cannot discern whether, through the July 27 filing,
Panzlau merely sought to provide further information regarding
certain of her pending counterclaims or sought to amend her
counterclaims yet again. If the latter, she failed to seek or obtain
leave of court or Maiker’s written consent for the amendment, as
C.R.C.P. 15(a) requires. (Maiker later advised the court that it did
14
not oppose Panzlau’s attempt to amend the third counterclaims.) In
any event, Maiker and the court treated the July 27 filing as a new
set of amended counterclaims (the fourth counterclaims). For that
reason, so do we.
¶ 33 On August 6, 2021, Maiker filed a motion to dismiss Panzlau’s
negligence (premises liability) and constructive eviction
counterclaims (jointly, the tort counterclaims) in the fourth
counterclaims pursuant to the Colorado Governmental Immunity
Act, sections 24-10-101 to -120, C.R.S. 2022, (CGIA). In its motion,
Maiker took the position that Panzlau had abandoned her breach of
contract counterclaim by not incorporating it into the fourth
counterclaims. Thus, Maiker asserted that only two counterclaims
remained — the tort counterclaims — and that both failed because
Maiker is a public entity for purposes of the CGIA and Panzlau had
not provided Maiker with the timely written notice required under
the CGIA. § 24-10-109(1), C.R.S. 2022. Because a claimant’s
failure to comply with the CGIA’s notice requirement deprives a
court of subject matter jurisdiction over the claimant’s later tort
claims against the public entity, Maiker argued that the court
lacked subject matter jurisdiction over the tort counterclaims.
15
¶ 34 On October 22, 2021, the court entered an order pronouncing
that Panzlau’s “counterclaims are dismissed with prejudice.” The
court noted that, because Panzlau did not “assert a breach of
contract claim” in the fourth counterclaims, only two counterclaims
remained in the case — the tort counterclaims. And, according to
the court, the tort counterclaims failed under the CGIA.
¶ 35 The court provided several grounds for its ruling. First, the
court said “[t]here exist sufficient grounds to strike the pleadings
and dismiss all counterclaims based on non-compliance with
previous court orders.” Second, in the alternative, the court
analyzed the tort counterclaims under the CGIA because it found
that Maiker is a public entity. The court also held that the tort
counterclaims were subject to dismissal because Panzlau had failed
to comply with the notice requirement in the CGIA and, therefore,
the court lacked subject matter jurisdiction over those
counterclaims.
2. Dismissal Pursuant to the CGIA
¶ 36 Three of the issues Panzlau raises on appeal relate to the
CGIA. Specifically, Panzlau asserts that (1) the court “allowed
[opposing counsel] to determine [Panzlau’s] date of injury” even
16
though the date was “unknowable” to opposing counsel; (2) “the
Notice of Claim was properly filed . . . within the 182 day time limit”
set forth in section 24-10-109(1); and (3) because Maiker had not
complied with “all of the Laws” as its contract with Adams County
required, Panzlau was entitled to a hearing (a Trinity hearing) under
Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d
916 (Colo. 1993), to determine whether the CGIA applied to Maiker.
All of these arguments fail.
a. Applicable Law and Standard of Review
¶ 37 Except as specified in the CGIA, the CGIA immunizes public
entities from “all claims for injury which lie in tort or could lie in
tort.” § 24-10-106(1), C.R.S. 2022; see Maphis v. City of Boulder,
2022 CO 10, ¶ 17, 504 P.3d 287, 291. “Public entity” includes “any
county”; any “instrumentality, or political subdivision thereof
organized pursuant to law[;] and any separate entity created by
intergovernmental contract or cooperation only between or among
the . . . county.” § 24-10-103(5), C.R.S. 2022. The definition thus
encompasses a county housing authority, which “shall constitute a
public body, corporate and politic” that “exercise[s] public and
essential governmental functions.” § 29-4-505(1), C.R.S. 2022; see
17
also Martinez v. CSG Redevelopment Partners LLLP, 2019 COA 91,
¶ 3, 469 P.3d 491, 492 (concluding that a partnership was an
“instrumentality of a public entity within the meaning of the CGIA,
and therefore a public entity itself entitled to governmental
immunity”) (cert. granted Mar. 30, 2020).
¶ 38 As a jurisdictional prerequisite to filing a tort claim against a
public entity, the CGIA provides that the complainant must provide
the public entity with written notice of his or her claim within 182
days after discovering the injury. § 24-10-109(1). “[F]ailure of
compliance [with the notice requirement] shall forever bar any such
action.” Id. “[T]o start the running of the CGIA notice period, a
claimant need only have discovered that he or 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).
¶ 39 When reviewing a jurisdictional issue pertaining to
governmental immunity resting on disputed facts, we employ “the
clearly erroneous standard of review in considering the trial court’s
findings of jurisdictional fact.” Springer v. City & Cnty. of Denver,
13 P.3d 794, 798 (Colo. 2000). However, we review the
18
jurisdictional issue de novo “if the alleged facts are undisputed and
the issue is purely one of law.” Id.b. The Court Lacked Subject Matter Jurisdiction Over
the Tort Counterclaims Because Panzlau Failed to Comply
with the CGIA’s Notice Requirement
¶ 40 Both causes of action specified in Panzlau’s fourth
counterclaims “lie in tort or could lie in tort.” § 24-10-106(1); see
also Vigil v. Franklin, 103 P.3d 322, 328 (Colo. 2004) (holding that
the premises liability statute is “the sole codification of landowner
duties in tort”); H & K Auto. Supply Co. v. Moore & Co., 657 P.2d
986, 988 (Colo. App. 1982) (noting that a claim of constructive
eviction can be an action in tort or an action on a contract). Both
counterclaims arise from the alleged damages and injuries caused
by the mold in Panzlau’s apartment.
¶ 41 Because Maiker is an instrumentality of Adams County, under
the CGIA, Panzlau was required to prove that, before she asserted
her tort counterclaims, she had provided Maiker with written notice
of her tort claims within 182 days of her discovery of the alleged
damages and injuries resulting from the presence of mold in her
apartment. See Martinez, ¶ 3, 469 P.3d at 492; § 24-10-109(1), (6).
(While we agree with Panzlau that Maiker must follow the law, we
19
are aware of no authority holding that the CGIA does not apply to a
public entity that allegedly failed to comply with “all of the Laws.”
We note that Panzlau’s allegations that Maiker violated the law are
subsumed within her other arguments and other counterclaims.)
¶ 42 There is no dispute that Panzlau sent Maiker written notice of
her mold-related claims on July 28, 2021. (We address only the
timing of the notice. In light of our resolution of that issue, we need
not also consider the validity of the notice.) In Panzlau’s response
to Maiker’s motion to dismiss under the CGIA, she asserted that
“her date of injury was the final day of mold exposure while
removing her personal items from the premises, and the date that
all of her personal belongings were left behind due to mold
contamination. . . . [—] April 9th, 2021.” Based on this date,
Panzlau contended that she provided timely notice to Maiker. (If
Panzlau discovered the facts underlying her tort counterclaims on
April 9, 2021, then the deadline for the notice to Maiker would have
been October 8, 2021.)
¶ 43 However, in an email to a Maiker employee dated January 19,
2021, Panzlau acknowledged that she had received the report
showing elevated levels of mold in her apartment and stated that
20
there were “several HIGH spore counts of other forms of mold
present ALL which cause either minor or major health problems.”
In the same email, Panzlau said that her ceiling was never repaired
correctly from a flood in 2016, and that she had been suffering from
“debilitating migraines with vomiting [and] cold sweats” while living
in the apartment. The district court found that Panzlau’s email
“supports that the date of the discovery of the injury for [Panzlau’s
tort counterclaims] was prior to, and certainly not later than,
January 19, 2021,” and that her notice to Maiker was thus due by
July 20, 2021 under the CGIA.
¶ 44 We hold that the district court applied the correct legal
standard for determining when the notice period runs — from the
time of discovery of the injuries and not, as Panzlau asserts, from
the last day of exposure. (Panzlau did not allege that she had
experienced any new mold-related injuries after January 19, 2021.)
We additionally see no clear error in the district court’s finding that
Maiker “set forth ample evidence that [Panzlau] admitted to
knowledge of her claimed injuries and even the source of mold as
the cause, establishing a date of discovery on or before January 19,
2021, [which] makes her July 28 notice untimely.”
21
¶ 45 Contrary to Panzlau’s contention, the district court did not
“allow” opposing counsel to determine Panzlau’s date of injury.
Rather, Panzlau’s own communications with Maiker reflect the date
by which she had actual knowledge of, and therefore had
discovered, her mold-related injuries. The undisputed facts
therefore establish that Panzlau failed to serve Maiker with timely
notice of her mold-related tort claims under the CGIA.
¶ 46 Additionally, in light of these undisputed facts, the district
court did not abuse its discretion by not conducting a Trinity
hearing to determine whether the CGIA barred the tort
counterclaims. See Bilderback v. McNabb, 2020 COA 133, ¶ 10,
474 P.3d 247, 251 (“We review the court’s decision whether to
conduct a Trinity hearing for abuse of discretion.”). A court is not
required to conduct a Trinity hearing where there is no factual
dispute that the claimant failed to provide the public entity with
timely notice of her claim. See id. at ¶ 9, 474 P.3d at 250 (“When
there is no evidentiary dispute, the court may . . . decide the
sovereign immunity question without a hearing, based on the
pleadings alone.”).
22
¶ 47 Accordingly, the district court properly dismissed Panzlau’s
tort counterclaims for lack of subject matter jurisdiction pursuant
to the CGIA.
3. Dismissal for Failure to State a Claim Upon Which Relief Can
Be Granted Under C.R.C.P. 12(b)(5)
¶ 48 Because we affirm the court’s dismissal of the tort
counterclaims based on Panzlau’s failure to comply with the CGIA’s
notice requirement, we do not reach the court’s alternative holding
that the tort counterclaims fail because of Panzlau’s failure to
comply with previous court orders. Although, as noted above, we
assume, as did Maiker and the court, that Panzlau abandoned her
breach of contract counterclaim by not including it in the fourth
counterclaims, we next consider whether she sufficiently pleaded
her breach of contract counterclaim in the event it survived the
filing of the fourth counterclaims.
a. Legal Principles
¶ 49 To determine whether a plaintiff stated a claim upon which
relief can be granted, Colorado courts employ the same “plausibility
standard” for dismissal that the United States Supreme Court
articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 560
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(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Warne,
¶ 24, 373 P.3d at 595. Because the pleading requirements
embodied in the Colorado rules were “borrowed from the prevailing
interpretation of the corresponding federal rules, by both the lower
federal courts and ultimately the Supreme Court itself,” federal
cases interpreting those pleading requirements are highly
persuasive authority, particularly as we strive toward the “goal of
establishing uniformity between state and federal judicial
proceedings in this jurisdiction.” Id. at ¶¶ 14-15, 373 P.3d at 593.
¶ 50 Under the plausibility test adopted in Warne, a claim is
subject to dismissal unless “the factual allegations . . . [are] enough
to raise a right to relief ‘above the speculative level.’” Walker v.
Women’s Pro. Rodeo Ass’n, 2021 COA 105M, ¶ 37, 498 P.3d 648,
657 (quoting Warne, ¶ 9, 373 P.3d at 591). As our supreme court
recently explained, a complainant must “allege sufficient facts that,
if taken as true, show plausible grounds to support a claim for
relief.” Jagged Peak Energy Inc. v. Okla. Police Pension & Ret. Sys.,
2022 CO 54, ¶ 25, ___ P.3d ___, ___.
¶ 51 “In determining the plausibility of a claim, we look to the
elements of the particular cause of action, keeping in mind that the
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[plausibility] standard doesn’t require a plaintiff to ‘set forth a prima
facie case for each element.’” George v. Urb. Settlement Servs., 833
F.3d 1242, 1247 (10th Cir. 2016) (quoting Khalik v. United Air
Lines, 671 F.3d 1188, 1192-93 (10th Cir. 2012)). But “[d]espite the
liberality of modern rules of pleading, a complaint still must contain
either direct or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)
(quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir.
Unit A Sept. 1981)). Thus, “although a plaintiff need not plead
a prima facie case, she must at least set forth enough factual
allegations to plausibly support each of the . . . basic elements” of
her claim. Mandala v. NTT Data, Inc., 975 F.3d 202, 209 (2d Cir.
2020); see also Nat’l Commodity & Barter Ass’n, Nat’l Commodity
Exch. v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989) (remanding to
the district court “with directions to permit an amended complaint
which outlines in clear, direct and understandable terms the
precise factual allegations to support each essential element of
these claims”). The plausibility standard thus “necessarily requires
that a plaintiff include factual allegations for each essential element
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of his or her claim.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d
1244, 1254 (11th Cir. 2012) (emphasis added), abrogated on other
grounds, N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. ___, 142
S. Ct. 2111 (2022).
b. Standard of Review
¶ 52 “We review de novo an order dismissing claims for failure to
state a claim upon which relief can be granted under C.R.C.P.
12(b)(5).” Walker, ¶ 36, 498 P.3d at 657. “In doing so, we accept all
factual allegations in the complaint as true, viewing them in a light
most favorable to the plaintiff.” Hess v. Hobart, 2020 COA 139M2,
¶ 11, 477 P.3d 771, 774.
c. Panzlau’s Breach of Contract Counterclaim
¶ 53 Panzlau’s third counterclaims did not contain sufficient facts
to show plausible grounds to support her breach of contract
counterclaim. Panzlau’s counterclaim apparently rested on her
allegations that Maiker’s handling of the mold situation violated
(1) express terms of Panzlau’s lease; and (2) the implied warranty of
habitability, section 38-12-503, C.R.S. 2022.
¶ 54 Specifically, Panzlau alleged:
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 “The apartment became uninhabitable on or before 23
December 2020” and “mold had been present long before
that.”
 “Maintenance staff routinely entered [Panzlau’s]
apartment without giving proper 24 hour notice for non-
emergency purposes and while defendant was not
present after expressly conveying to management that
personal items had been stolen by maintenance staff and
requesting that she be present during visits.”
 “[Maiker] is materially in Breach of the Implied warranty
of habitability due to the conditions of toxic mold that
exist in the walls and ceiling of the Property.”
 “Water and heat had been off for several days during
November of 2020 when the boiler failed and had to be
repaired or replaced . . . [in] violation of the Warranty of
Habitability.”
 “[Maiker] has knowingly engaged in failing to remediate
the mold and water damaged materials in the property.”
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 “[Maiker] knowingly failed to install special air filtration
device(s) in the apartment required by the law after the
mold test returned positive.”
 Maiker acted in bad faith.
¶ 55 First, Panzlau pleaded insufficient facts to assert an actionable
claim for breach of an express provision of the lease. The elements
of a prima facie breach of contract claim are: “(1) the existence of a
contract; (2) performance by the plaintiff or some justification for
nonperformance; (3) failure to perform the contract by the
defendant; and (4) resulting damages to the plaintiff.” Marquardt v.
Perry, 200 P.3d 1126, 1129 (Colo. App. 2008). Here, because
Panzlau cited to no specific provision of her lease that Maiker
allegedly breached, she did not set forth sufficient factual
allegations to plausibly support the “failure to perform” element of
her breach of contract counterclaim.
¶ 56 Second, Panzlau pleaded insufficient facts to assert an
actionable claim for breach of the implied warranty of habitability.
Under section 38-12-503(2.2), which applies where, as here, “a
residential premises has mold that is associated with dampness,
. . . a landlord breaches the warranty of habitability if the landlord
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fails” to “mitigate immediate risk from mold” by taking specific steps
“[w]ithin ninety-six hours after receiving reasonably complete written
or electronic notice of the condition” and execute additional remedial
actions “[w]ithin a reasonable amount of time.”
§ 38-12-503(2.2)(a),(c) (emphasis added). If the notice concerns a
condition that “materially interferes with the tenant’s life, health, or
safety,” the landlord must, at the request of the tenant, provide a
comparable dwelling unit or a hotel room at no expense or cost to
the tenant. § 38-12-503(2)(a)(II), (4)(a). However, Panzlau did not
allege that she provided Maiker with the notice required to trigger
the landlord’s duties identified in subsections 38-12-503(2.2) and
(4)(a). Absent an allegation that Panzlau provided Maiker with the
statutory notice of mold, Panzlau’s breach of contract counterclaim
does not state plausible grounds for relief under the warranty of
habitability statute.
¶ 57 Therefore, Panzlau’s breach of contract counterclaim was
subject to dismissal at the pleading stage, regardless of whether she
abandoned it by not including it in the fourth amended
counterclaims. For these reasons, we need not reach Panzlau’s
arguments that the court “ignored” (1) “the updated language of the
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Habitability law modified by HB19-11701(b) regarding mold”;
(2) “every single prayer for relief from the defendant — even relief
that was contractually provided for by the [contract with Adams
County] and the habitability laws[’] prohibition on retaliation for
reporting mold in good faith”; (3) “[that Maiker’s] [n]otice to quit was
for [an] improper period of time”; and (4) “the violation of
[c]ontractual [l]anguage of the Maiker Lease Agreement,” which
allowed Maiker’s counsel “to demand payment multiple times.” The
court could not have addressed the merits of these issues because
the claim failed at the pleading stage.
D. Panzlau’s Remaining Contention
¶ 58 Panzlau also contends that the court “arbitrarily and
capriciously deemed information and motions” that Panzlau
submitted throughout the case as lacking “valid subject matter, or
merit, or [as] not being specific enough — rendering them improper,
or moot, and allowing them to be struck in whole, in part or
dismissed . . . to minimize Maiker’s Liability.”
¶ 59 As Panzlau’s notice of appeal indicates, she appealed only one
of the court’s orders — the October 22, 2021, order dismissing her
remaining counterclaims. Our analysis above fully addresses
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Panzlau’s arguments regarding that order. To the extent Panzlau’s
arguments regarding other orders are properly before us, we reject
her contention that the district court acted arbitrarily or
capriciously by entering those orders.
III. Conclusion
¶ 60 The judgment is affirmed.
JUDGE FOX and JUDGE FREYRE concur.
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