Smart v. Stropas

24CA0614 Smart v Stropas 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0614
Adams County District Court No. 22CV30289
Honorable Christopher J. Munch, Judge

Samantha Smart and Derek Sweitzer,

Plaintiffs-Appellants,

v.

Stacie A. Stropas, Kenaniah D. Stropas, and Sheree L. Stropas,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE SCHOCK
Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 23, 2025

Pat Mellen Law, LLC, Patricia Ann Mellen, Denver, Colorado, for Plaintiffs-
Appellants

Stacie A. Stropas, Pro Se

Kenaniah D. Stropas, Pro Se

Sheree L. Stropas, Pro Se
¶1 Plaintiffs, Samantha Smart and Derek Sweitzer, appeal the

judgment on their claims against defendants, Stacie A. Stropas,

Kenaniah D. Stropas, and Sheree L. Stropas. They argue that the

district court erred by (1) denying their fraud claim under the

economic loss rule; (2) declining to award certain damages;

(3) improperly calculating attorney fees and costs; (4) failing to

award prejudgment interest; and (5) dismissing their claims against

Sheree.1

¶2 We affirm the judgment with one exception. Because plaintiffs

are entitled to prejudgment interest, we remand the case to the

district court to correct the judgment to include that award.

I. Background

¶3 Stacie and Kenaniah, sister and brother, owned a townhome

for several years. In April 2021, they listed the home for sale. Days

later, plaintiffs made them an offer, which they accepted. The

parties entered into a standard form real estate sale contract.

¶4 As relevant to this case, the contract contained a

“Methamphetamine Disclosure,” which provided as follows:

1 Because defendants all share the same last name, we refer to

them by their first names, intending no disrespect in doing so.

1
If Seller knows that methamphetamine was
ever manufactured, processed, cooked,
disposed of, used or stored at the Property,
Seller is required to disclose such fact. No
disclosure is required if the Property was
remediated in accordance with state standards
and other requirements are fulfilled pursuant
to § 25-18.5-102, C.R.S.[] Buyer further
acknowledges that Buyer has the right to
engage a certified hygienist or industrial
hygienist to test whether the Property has ever
been used as a methamphetamine laboratory.
Buyer has the Right to Terminate under
§ 25.1, upon Seller’s receipt of Buyer’s written
Notice to Terminate, notwithstanding any
other provision of this Contract, based on
Buyer’s test results that indicate the Property
has been contaminated with
methamphetamine, but has not been
remediated to meet the standards established
by rules of the State Board of Health
promulgated pursuant to § 25-18.5-102,
C.R.S. Buyer must promptly give written
notice to Seller of the results of the test.

¶5 Stacie and Kenaniah also completed and signed a “Seller’s

Property Disclosure,” as required by the contract. The disclosure

included a provision that asked if the sellers had knowledge that

the property was “previously used as a methamphetamine

laboratory and not remediated to state standards.” That box was

not checked, indicating that the sellers had no such knowledge.

2
¶6 The parties closed on the sale about a month later. Because

Kenaniah was out of state at the time, he appointed his mother,

Sheree, as his power of attorney to act for him in completing the

sale. Sheree signed the closing documents on Kenaniah’s behalf.

¶7 Plaintiffs began renovating the property before moving in. As

they were doing so, neighbors warned them that there may have

previously been methamphetamine at the property. They tested the

property and confirmed that the property was contaminated with

methamphetamine residue in excess of state regulatory levels.

¶8 Unbeknownst to plaintiffs, Stacie had regularly used

methamphetamine for approximately a year while she was living in

the home, though she claimed to have never brought

methamphetamine into the home. In addition, the father of Stacie’s

children and her on-and-off boyfriend was a methamphetamine

addict and was regularly at the property, though again, Stacie said

he did not use methamphetamine in the home. Stacie and

Kenaniah did not disclose any prior methamphetamine use or

storage at the property to plaintiffs at the time of the sale.

¶9 Upon learning of the methamphetamine contamination,

plaintiffs remediated the property. During the remediation,

3
plaintiffs rented an apartment in the same complex where they had

been living before purchasing the townhome. After several

additional rounds of testing, the property was cleared for habitation

in December 2021. But despite the successful remediation,

plaintiffs never moved into the townhome because they remained

concerned that the presence of methamphetamine — though now

below state standards — could cause health issues for Sweitzer,

who had leukemia. Plaintiffs sold the property in April 2022 for

approximately $83,000 more than their purchase price.

¶ 10 Plaintiffs sued defendants for breach of contract and fraud,

alleging that defendants were aware of, and failed to disclose, the

presence and use of methamphetamine on the property.2

¶ 11 The case went to a bench trial, at which defendants

represented themselves. After trial, the district court dismissed the

claims against Sheree, explaining that it had “heard no evidence

that [she] did anything wrong.” The court then issued an oral

ruling in favor of plaintiffs on their breach of contract claim against

2 Plaintiffs also asserted a claim for breach of the implied covenant

of good faith and fair dealing, but that claim was dismissed before
trial and is not at issue in this appeal.

4
Stacie and Kenaniah. It found that the most likely source of the

contamination was Stacie’s use of methamphetamine while she was

living in the home, that Stacie had reason to know of the presence

of methamphetamine in the home, and that she and Kenaniah

breached the contract by failing to make that disclosure. But the

court ruled against plaintiffs on their fraud claim, finding that the

parties’ relationship arose solely from their contract.

¶ 12 The court orally awarded plaintiffs $71,123 in damages, plus

“interest at the statutory rate from the date of closing on the

contract.” Those damages consisted of (1) $44,720 for the cost of

remediation; and (2) $26,403 for the rent and application fee

plaintiffs paid for their apartment from the date of the initial testing

until the property was cleared for habitation, plus two additional

months to account for a notice period for terminating the lease.

¶ 13 The court also awarded plaintiffs reasonable attorney fees and

costs under the contract. In doing so, the court explained that if

the claim for attorney fees and costs did not exceed forty percent of

the damages award, the court would likely find it reasonable. The

court said it would not expect fees and costs to exceed that amount.

5
¶ 14 At the district court’s request, plaintiffs submitted a proposed

findings and judgment, which tracked the court’s oral ruling. They

also filed an affidavit for attorney fees and costs, requesting a total

of $55,016 — $45,846 in attorney fees and $9,170 in costs.

¶ 15 The district court adopted the proposed findings in part in a

written order that also addressed attorney fees and costs. The

court said it was “not inclined to find” plaintiffs’ request for attorney

fees and costs reasonable for what was a “relatively straightforward

case against pro se parties.” It instead awarded plaintiffs $30,000

and entered judgment “in the amount of $71,123 for proven

damages and $30,000 for reasonable attorney[] fees and costs, with

interest at the statutory rate from the date of the verdict until paid.”

The court allowed either party to contest the award of fees and costs

by requesting a hearing within twenty-one days. No party did so.

¶ 16 Plaintiffs then filed a C.R.C.P. 59 motion, challenging the

denial of their fraud claim, the damages award, and the award of

attorney fees and costs. The district court denied the motion.

II. Fraud Claim

¶ 17 Plaintiffs first argue that the district court erred by rejecting

their fraud claim under the economic loss rule. Relying on In re

6
Estate of Gattis, 2013 COA 145, ¶ 17, they assert that defendants’

duty to disclose known latent defects in the home was independent

of the parties’ contract. Because the contract explicitly addressed

the sellers’ obligation to disclose methamphetamine, we disagree.

A. Economic Loss Rule

¶ 18 The economic loss rule provides that “a party suffering only

economic loss from the breach of an express or implied contractual

duty may not assert a tort claim for such a breach absent an

independent duty of care under tort law.” Town of Alma v. AZCO

Constr., Inc., 10 P.3d 1256, 1264 (Colo. 2000). The basic purpose of

this rule is to “maintain a distinction between contract law, where

obligations arise from promises made between parties, and tort law,

where obligations arise from duties imposed by law without regard

to any agreement or contract.” Mid-Century Ins. Co. v. HIVE Constr.,

Inc., 2023 COA 25, ¶ 26 (cert. granted in part Feb. 5, 2024); see also

BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 72 (Colo. 2004).

¶ 19 The “essential difference” between a tort claim and a contract

claim is the source of the duty alleged to have been breached.

BRW, 99 P.3d at 72. If the duty arises under the provisions of a

contract, the breach must be redressed under contract law, and the

7
economic loss rule applies. S K Peightal Eng’rs, LTD v. Mid Valley

Real Est. Sols. V, LLC, 2015 CO 7, ¶ 7. If the duty arises

independently of any contractual duties, a tort claim will lie. Id.

¶ 20 In determining whether a duty is independent of the parties’

contract, we consider whether (1) the relief sought in tort is the

same as the contractual relief; (2) there is a recognized common law

duty of care in tort; and (3) the tort duty differs in any way from the

contractual duty. BRW, 99 P.3d at 74. If these factors “establish

that a duty of care is ‘memorialized’ in the parties’ contract — i.e.,

the duty is contained within, or imposed under, the contract — it

necessarily follows that the plaintiff has failed to show any duty

independent of the contract.” City of Aspen v. Burlingame Ranch II

Condo. Owners Ass’n, 2024 CO 46, ¶ 43. Thus, “[e]ven if the duty

allegedly breached is separately recognized under tort law, it is not

‘independent’ of the contract . . . if it addresses the same obligations

created by the contract.” Mid-Century Ins. Co., ¶ 28.

¶ 21 We review de novo whether the economic loss rule bars a

plaintiff’s tort claim. Id.

8
B. Analysis

¶ 22 In Gattis, the division held that the economic loss rule did not

bar the plaintiff’s nondisclosure tort claim for two reasons. First, it

concluded that “apart from any contractual obligation, home sellers

owe home buyers an independent duty to disclose latent defects of

which they are aware.” Gattis, ¶ 2. Second, that independent duty

was not subsumed by the disclosure provisions in the parties’

contract in that case. Id.; see also id. at ¶ 19 (recognizing that

“contracts may completely subsume the common law duties”).

¶ 23 Accepting Gattis’s first holding, it is distinguishable on its

second because Stacie and Kenaniah’s duty to disclose

methamphetamine was explicitly set forth in the parties’ contract.

In Gattis, although the seller’s property disclosure referred generally

to the defect at issue, the contract “d[id] not set out a standard of

care or incorporate one by reference.” Id. at ¶ 23. Nor did the

disclosure form require the sellers to disclose all of the material

facts that the court found should have been disclosed. Id. at ¶ 24.

¶ 24 In contrast, the parties’ contract in this case detailed precisely

what the sellers were obligated to disclose concerning

methamphetamine — namely, if they knew that methamphetamine

9
“was ever manufactured, processed, cooked, disposed of, used or

stored at the Property.” It also made clear when disclosure was not

required, i.e., “if the Property was remediated in accordance with

state standards and other requirements are fulfilled pursuant to

[statute].” Cf. id. at ¶ 23 (noting that the contract did not “limit[]

the parties’ rights and liabilities to the categories of information

specified in the [disclosure]”). Plaintiffs have not shown how the

independent tort duty recognized in Gattis “differs in any way from

the contractual duty.” BRW, 99 P.3d 74; see also Dream Finders

Homes LLC v. Weyerhaeuser NR Co., 2021 COA 143, ¶ 69 (holding

that where “concurrent contractual and tort duties not to engage in

fraud . . . overlapped,” economic loss rule barred tort claim).

¶ 25 Also unlike Gattis, the parties’ contract included a specific

remedy for breach of the methamphetamine disclosure provision:

Buyer has the Right to Terminate under
§ 25.1, upon Seller’s receipt of Buyer’s written
Notice to Terminate, notwithstanding any
other provision of this Contract, based on
Buyer’s test results that indicate the Property
has been contaminated with
methamphetamine, but has not been
remediated to meet the standards established
by rules of the State Board of Health
promulgated pursuant to § 25-18.5-102,

10
C.R.S. Buyer must promptly give written
notice to Seller of the results of the test.

The contract in Gattis “provide[d] only general remedies” and

prescribed no remedy for nondisclosure. Gattis, ¶ 23.

¶ 26 We note that a division of this court has held that “in most

instances the economic loss rule will not bar intentional tort

claims.” McWhinney Centerra Lifestyle Ctr. LLC v. Poag & McEwen

Lifestyle Ctrs.-Centerra LLC, 2021 COA 2, ¶ 67; see also Bermel v.

BlueRadios, Inc., 2019 CO 31, ¶ 20 n.6 (“[T]he economic loss rule

generally should not be available to shield intentional tortfeasors

from liability for misconduct that happens also to breach a

contractual obligation.”). But plaintiffs do not argue, beyond Gattis,

that intentional tort claims categorically fall outside the economic

loss rule. So we need not choose a side in the division split on that

issue. Compare McWhinney, ¶¶ 73-75, with Dream Finders, ¶¶ 63-

64; see also Galvan v. People, 2020 CO 82, ¶ 45 (noting that

appellate courts must “adhere to the party presentation principle,

which relies on the parties to frame the issues to be decided”). In

any event, even McWhinney did not “reject the factors outlined in

11
BRW to determine whether a duty allegedly breached is

independent of the parties’ contract.” Mid-Century Ins. Co., ¶ 40.

¶ 27 Thus, because plaintiffs’ fraud claim is based on a duty

specifically contained within the relevant contract, that duty is not

independent of the contract, and the economic loss rule bars the

claim. See City of Aspen, ¶ 43. Because we affirm the denial of this

claim, we need not address plaintiffs’ arguments that they were

entitled to noneconomic damages and attorney fees on the claim.

III. Damages

¶ 28 Plaintiffs next contend that the district court erred by failing to

award them certain categories of damages. We disagree.

A. Standard of Review

¶ 29 The district court has broad discretion to determine the

amount of damages in a bench trial. McDonald’s Corp. v.

Brentwood Ctr., Ltd., 942 P.2d 1308, 1311 (Colo. App. 1997). The

proper measure of damages is a question of law that we review de

novo. Kroesen v. Shenandoah Homeowners Ass’n, 2020 COA 31,

¶ 56. But “the fact finder has the sole prerogative to assess the

amount of damages and its award will not be set aside unless it is

manifestly and clearly erroneous.” Id. (citation omitted). A damage

12
award is clearly erroneous if there is nothing in the record to

support it. Sos v. Roaring Fork Transp. Auth., 2017 COA 142, ¶ 49.

¶ 30 The proper measure of damages in a breach of contract action

is “the amount it takes to place the plaintiff[s] in the position [they]

would have occupied had the breach not occurred.” Acoustic Mktg.

Rsch., Inc. v. Technics, LLC, 198 P.3d 96, 98 (Colo. 2008). The

damages must be “traceable to and the direct result” of the breach.

Saturn Sys., Inc. v. Militare, 252 P.3d 516, 529 (Colo. App. 2011)

(citation omitted). Damages “need not be calculated with absolute

precision” but only to a degree of “reasonable certainty.” Morris v.

Belfor USA Grp., Inc., 201 P.3d 1253, 1257-58 (Colo. App. 2008).

B. Additional Two Months’ Rent and Utilities

¶ 31 Plaintiffs first argue that the district court should have

awarded them their rent and utilities for four months after the

remediation was complete instead of two months because they were

required to give ninety-one days’ notice to terminate their lease.

¶ 32 But as the district court directly addressed at trial, the lease

was not introduced as evidence, and there was no evidence of that

lease’s early termination provisions. See Tull v. Gundersons, Inc.,

709 P.2d 940, 947 (Colo. 1985) (“[T]he plaintiff in a breach of

13
contract action bears the burden of proof with respect to

damages . . . .”). Indeed, at one point during closing argument,

plaintiffs’ counsel asserted that, although she did not have a copy of

the lease, “[t]ypically it’s a 60-day notice of a lease break.”

¶ 33 Plaintiffs cite section 13-40-107(2)(a), C.R.S. 2024, for the

proposition that a tenancy of one year or longer requires at least

ninety-one days’ written notice of termination. This statute does

not show error for three reasons. First, plaintiffs did not mention it

until their C.R.C.P. 59 motion. See Briargate at Seventeenth Ave.

Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66 (“Arguments

made . . . for the first time in a post-trial motion are too late and,

consequently, are deemed waived for purposes of appeal.”). Second,

plaintiffs point to no evidence in the record that their lease was one

year or longer. Third, even if the statute applies to provide a

minimum statutory right of termination, nothing prevents a

landlord from allowing a tenant to terminate the lease sooner.

¶ 34 Given the evidence in the record, the district court did not

clearly err by awarding plaintiffs two months of rent after

remediation was complete to allow for termination of the lease.

14
C. Closing Fees

¶ 35 Plaintiffs next take issue with the district court’s failure to

award them their closing costs for purchasing the townhome and

selling it after the remediation. They assert that, if defendants had

disclosed the methamphetamine contamination, plaintiffs would not

have purchased the property in the first place, and thus would not

have incurred the costs of buying and later selling the property.

¶ 36 We conclude that the district court did not clearly err by not

awarding these costs as damages. As the district court explained,

and as plaintiffs acknowledge, plaintiffs contracted to receive a

home free of methamphetamine contamination. Under the parties’

contract, that meant either that (1) methamphetamine had never

been on the property; or (2) if it had, the property had been

remediated in accordance with state standards. Once the property

was remediated, plaintiffs received what they bargained for. The

closing costs for buying the property were part of that bargain, and

the closing costs for selling the property were outside of it.

¶ 37 Moreover, plaintiffs’ request to be placed in the position they

would have been in if they had not purchased the property is

inconsistent with their later sale of the property for a profit.

15
Allowing plaintiffs to keep their profit on the sale of the property

while awarding them their closing costs as if they had never

purchased (or sold) it would result in a “windfall to plaintiffs,

placing them in a better position than they otherwise would have

been in absent the breach.” Morris, 201 P.3d at 1259.

D. Other Expenses

¶ 38 Plaintiffs also identify four categories of expenses that they

attribute to the cost of remediation and claim were not awarded.

¶ 39 We decline plaintiffs’ invitation to perform a line-item review of

the district court’s damages award. See Morris, 201 P.3d at 1257-

58 (noting that “damages need not be calculated with absolute

precision”). The district court found that the cost to clean up the

property was $44,720, and it detailed exactly what that amount

included — “testing, remediation, replacing the furnace, replacing

the carpet, replacing the insulation, replacing the dishwasher,

replacing the microwave oven and a $200 delivery charge.” The

court also explained why it drew the line where it did — those

charges were incurred “pursuant to the recommendations of the

professionals that actually did the clean up of the house.” Because

16
the district court’s damages calculation is supported by the record,

we will not disturb it. See Tisch v. Tisch, 2019 COA 41, ¶ 67.

¶ 40 Indeed, two of the items plaintiffs contend were disallowed —

the carpet replacement and the attic insulation — were included in

the damages award. And the court indicated its reasoning for

denying others. For example, the court declined to award plaintiffs

damages for their own time in remodeling the property because it

was not foreseeable that they would perform such work themselves.

The court noted that neither expert testified the hardwood had to be

removed as part of the remediation. As to the encapsulation

painting, plaintiffs’ counsel explained in closing that it was done

before the property was determined to be contaminated, and there

was testimony at trial that repainting was not required. These were

all factual determinations for the district court. See Kroesen, ¶ 56.

IV. Attorney Fees and Costs

¶ 41 Plaintiffs assert that the district court erred in its award of

attorney fees and costs to plaintiffs. They argue that the district

court (1) did not make sufficient findings to allow for meaningful

appellate review; (2) failed to analyze their fee request using the

lodestar method; and (3) did not award them their reasonable costs.

17
A. Preservation

¶ 42 As an initial matter, we question whether plaintiffs preserved

their challenge to the fees and costs award. After plaintiffs

submitted their affidavit for attorney fees and costs, requesting

approximately $55,000, the district court ruled that it was “not

inclined to find this amount to be reasonable” and awarded $30,000

instead. But in doing so, the court explained that “[s]hould either

party wish to contest the award of fees and costs, they are entitled

to a hearing and may request one by submitting a written pleading

within 21 days,” in which case “attorney[] fees and costs will be

determined after the hearing.” Thus, though framed as a judgment,

the district court effectively treated its fees and cost award as

tentative and invited the parties to object to it if they disputed it.

By failing to request a hearing despite the district court’s express

invitation to do so, plaintiffs seemingly acquiesced in the award. Cf.

In re Marriage of Aldrich, 945 P.2d 1370, 1380 (Colo. 1997) (holding

that party who fails to make a timely request for a hearing on

reasonableness of attorney fees and costs waives such a hearing).

18
¶ 43 But even if plaintiffs preserved their challenge through their

initial request for attorney fees and costs or their post-trial motion,

we conclude that the district court did not abuse its discretion.

B. Standard of Review and Applicable Law

¶ 44 We review an award of attorney fees and costs for an abuse of

discretion. Franklin Credit Mgmt. Corp. v. Galvan, 2019 COA 107,

¶ 27. A district court abuses its discretion when it misapplies the

law or when its decision is manifestly arbitrary, unreasonable, or

unfair. Id. The district court’s determination of a reasonable

attorney fee award “will generally not be disturbed on review unless

it is patently erroneous and unsupported by the evidence.”

Planning Partners Int’l, LLC v. QED, Inc., 2013 CO 43, ¶ 12. The

court must make findings “sufficient to allow meaningful appellate

review.” Brody v. Hellman, 167 P.3d 192, 198 (Colo. App. 2007).

¶ 45 The calculation of reasonable attorney fees generally begins

with the lodestar amount, which represents the number of hours

reasonably expended on the case multiplied by a reasonable hourly

rate. S. Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons,

P.C. v. Weinstein, 2014 COA 171, ¶ 23. The court may then adjust

that amount upward or downward based on several factors,

19
including the degree of success achieved. Id. at ¶ 24; see also

Tallitsch v. Child Support Servs., Inc., 926 P.2d 143, 147 (Colo. App.

1996) (listing relevant factors). The amount of damages recovered

by the plaintiffs is relevant to whether a fee request should be

reduced based on the degree of success achieved. Weinstein, ¶ 25.

C. Analysis

¶ 46 We first reject plaintiffs’ argument that the district court’s

findings were not sufficient to allow for appellate review of the

award. Although the findings were not extensive, the district court

identified the factors it relied on to reduce the award: (1) the

“relatively straightforward” nature of the case, including that it was

against pro se parties; (2) the expenditure of significant efforts and

fees against a party who prevailed; and (3) the expenditure of

significant efforts and fees on the unsuccessful fraud claim. See

Tallitsch, 926 P.2d at 147 (noting that a court may consider “the

complexity of the case” and “the degree of success achieved”).

¶ 47 The court also explained in its oral ruling that it would not

expect reasonable attorney fees and costs in a case like this one to

exceed forty percent of the total judgment. See Payan v. Nash Finch

Co., 2012 COA 135M, ¶ 53 (rejecting “rule of proportionality” but

20
holding that court is “not precluded from considering the amount in

controversy when awarding attorney fees”); cf. Weinstein, ¶ 32

(holding that district court “did not abuse its discretion when it

used a ratio of damages actually awarded to damages requested”).

Together, these findings are sufficient to give us “a clear

understanding of the basis of [the district court’s] decision.”

Gravina Siding & Windows Co. v. Gravina, 2022 COA 50, ¶ 79.

¶ 48 We also disagree with plaintiffs that the district court abused

its discretion by not calculating the lodestar amount. The court

began by acknowledging plaintiffs’ request, which was based on the

number of hours plaintiffs’ counsel billed multiplied by her hourly

rate. The court then found that amount was not reasonable — or at

least that it was “not inclined to find” that it was — and specifically

noted that plaintiffs were not entitled to recover fees for their claims

against Sheree and their fraud claim. In doing so, the court

effectively applied the lodestar analysis, even if it did not expressly

calculate the lodestar amount. See Weinstein, ¶ 26 (holding that

district court did not abuse its discretion by accepting plaintiff’s fee

request as the starting point and taking deductions from that

amount); In re Marriage of Collins, 2023 COA 116M, ¶ 53 (holding

21
that the district court did not abuse its discretion by not calculating

a lodestar amount where it considered the lodestar adjustment

factors, there was no dispute as to the reasonableness of counsel’s

hourly rate, and the court’s findings were sufficient to support its

implied conclusion that the hours expended were reasonable).

¶ 49 The district court certainly could have done more to explain its

award of fees and costs. For example, it would have been better for

the court to identify — or at least give examples of — the hours it

was excluding and why. It also would have been better if the court

had explained how it landed on $30,000 as the reasonable amount.

¶ 50 But a district court’s goal in awarding attorney fees is “to do

rough justice, not to achieve auditing perfection . . . tak[ing] into

account [the district court’s] overall sense” of the case. Fox v. Vice,

563 U.S. 826, 838 (2011). The court need not do so with the

precision of an accountant but “may use estimates in calculating

and allocating an attorney’s time.” Id. And when it has done so, we

must give its determinations “substantial deference” and avoid

“appellate micromanagement.” Id. Giving the district court the

deference it is due, we cannot conclude that it abused its discretion.

22
¶ 51 Finally, plaintiffs assert that the district court erred by

awarding their costs in a “bulk amount” with their attorney fees.

But plaintiffs themselves requested their fees and costs as a bulk

amount.3 They thus invited any error in the district court doing the

same. See Bernache v. Brown, 2020 COA 106, ¶ 11 (“The doctrine

of invited error prevents a party from complaining on appeal of an

error that he or she has invited or injected into the case.”).

¶ 52 In any event, the district court awarded plaintiffs their

reasonable costs as the prevailing party, as required by rule. See

C.R.C.P. 54(d) (allowing consideration of “the needs and complexity

of the case and the amount in controversy”). And as noted above, it

generally explained the basis of its overall award of fees and costs.

See Danko v. Conyers, 2018 COA 14, ¶ 72. Under these

circumstances, the district court did not abuse its discretion by

combining the cost award with the award of fees, particularly where

plaintiffs did the same. See id. at ¶ 68 (“[T]he [district] court’s

3 Although plaintiffs’ affidavit for attorney fees and costs included

separate columns for fees and costs, their ultimate request was for
“reasonable fees and costs in the amount of $55,016.43.”

23
findings as to the reasonableness and amount of costs will be

disturbed on appeal only for an abuse of discretion.”).

V. Prejudgment Interest

¶ 53 Plaintiffs next argue that the district court erred by not

awarding them their prejudgment interest. We agree.

¶ 54 In a breach of contract case, the nonbreaching party is entitled

to recover prejudgment interest under section 5-12-102(1), C.R.S.

2024. Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821, 825-26

(Colo. 2008). The interest accrues from the date the money has

been “wrongfully withheld.” § 5-12-102(1)(a). In a contract action,

that is generally the date of the breach. Butler v. Lembeck, 182 P.3d

1185, 1194 (Colo. App. 2007). But when the plaintiff seeks

damages for replacement or repair costs, prejudgment interest

begins to accrue when the plaintiff incurs those costs. Goodyear

Tire & Rubber Co., 193 P.3d at 830; see also Hildebrand v. New

Vista Homes II, LLC, 252 P.3d 1159, 1173 (Colo. App. 2010).

¶ 55 The district court appeared to recognize plaintiffs’ entitlement

to prejudgment interest in its oral ruling, finding that “plaintiffs are

entitled to interest at the statutory rate from the date of closing on

the contract.” But in its written findings and judgment, the district

24
court awarded plaintiffs interest only “from the date of the verdict

until paid” — i.e., postjudgment interest only. Because plaintiffs

are entitled to prejudgment interest by statute, this was error.

¶ 56 We therefore reverse the judgment to the extent it fails to

award prejudgment interest, and we remand the case to the district

court to award plaintiffs prejudgment interest under section

5-12-102(1). To the extent the damages are based on repair costs

or other expenditures by plaintiffs, the prejudgment interest should

run from the date those costs were incurred. See Goodyear Tire &

Rubber Co., 193 P.3d at 830; Hildebrand, 252 P.3d at 1173.

VI. Claims Against Sheree

¶ 57 Plaintiffs’ final contention is that the district court erred by

ruling against them on their claims against Sheree. We disagree.

¶ 58 Initially, to the extent plaintiffs characterize the district court’s

ruling as a directed verdict, they are incorrect. The district court’s

dismissal of the claims against Sheree came at the end of trial, after

presentation of evidence and closing arguments. Thus, it was not a

directed verdict but a judgment in Sheree’s favor on the merits.

¶ 59 We review a judgment after a bench trial as a mixed question

of fact and law. State ex rel. Weiser v. Ctr. for Excellence in Higher

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Educ., Inc., 2023 CO 23, ¶ 33. We review the district court’s factual

findings for clear error and its legal conclusions de novo. Kroesen,

¶ 55. In conducting this review, we defer to the district court’s

credibility determinations and its assessment of the weight and

probative effect of the evidence. Amos v. Aspen Alps 123, LLC, 2012

CO 46, ¶ 25; Saturn Sys., 252 P.3d at 521. We will not disturb the

district court’s factual findings unless they are clearly erroneous

and unsupported by the record. Amos, ¶ 25.

¶ 60 The district court correctly ruled against plaintiffs on their

claim against Sheree for breach of contract. Sheree’s sole

involvement in the sale of the property was as Kenaniah’s power of

attorney for the closing of the transaction — approximately a month

after execution of the contract that was allegedly breached. Even if

Sheree had signed the contract as Kenaniah’s power of attorney, she

could not have been liable for a breach of that contract. See Water,

Waste & Land, Inc. v. Lanham, 955 P.2d 997, 1001 (Colo. 1998) (“If

both the existence and identity of the agent’s principal are fully

disclosed to the other party, the agent does not become a party to

any contract which he negotiates.”) (citation omitted); see also

Restatement (Third) of Agency § 6.01 cmt. d (Am. L. Inst. 2006).

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¶ 61 But Sheree did not even do that. She did not receive

Kenaniah’s power of attorney until two weeks after execution of the

contract and property disclosure on which plaintiffs’ contract claim

is based. By agreeing to act as Kenaniah’s agent for the closing of

the transaction, Sheree did not assume his pre-existing contractual

obligations. Thus, because Sheree is not a party to the contract,

she could not be liable to plaintiffs for a breach of that contract.

¶ 62 The record also supports the district court’s finding in Sheree’s

favor on plaintiffs’ fraud claim. Sheree’s power of attorney to act on

Kenaniah’s behalf did not make her a seller of the property. She

testified that she did not review the offers, was not involved in the

final decision to sell, and never saw the Seller’s Property Disclosure.

She further testified that her role as Kenaniah’s power of attorney

was limited to “sign[ing] the papers on his behalf the day of closing.”

And although a principal may be liable for an agent’s

misrepresentations made within the scope of the agency, see Grease

Monkey Int’l, Inc. v. Montoya, 904 P.2d 468, 475 (Colo. 1995), an

agent generally is not liable for the independent acts of a fully

disclosed principal. See Hildebrand, 252 P.3d at 1166 (holding that

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agents may be liable for their own acts on behalf of a principal only

where they were directly involved in the tortious conduct).

¶ 63 Moreover, even assuming Sheree had a duty to disclose latent

defects of which she was aware, the record supports the district

court’s implicit finding that she did not know of the

methamphetamine contamination. Sheree testified that (1) she was

unaware of Stacie’s methamphetamine usage; (2) Stacie had misled

her as to why she was no longer employed; (3) she had only met the

father of Stacie’s children twice while Stacie owned the property and

did not know of his drug problem; and (4) she did not believe Stacie

and Kenaniah were responsible for the methamphetamine

contamination. To the extent plaintiffs suggest that it is “more

likely than not” that Sheree did have such knowledge, that was a

question of fact for the district court. See Amos, ¶ 25; Morris, 201

P.3d at 1258 (“At a bench trial, it is the trial court’s duty to assess

the evidence and determine the credibility of the witnesses.”).

¶ 64 Plaintiffs’ argument that Sheree should have been found liable

for acting in concert with the other defendants fails for the same

reason. Plaintiffs cite section 13-21-111.5(4), C.R.S. 2024, which

provides for joint liability for “two or more persons who consciously

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conspire and deliberately pursue a common plan or design to

commit a tortious act.” But there can be no joint liability in the

absence of an underlying tort. See Colo. Cmty. Bank v. Hoffman,

2013 COA 146, ¶ 43 (“Civil conspiracy is a derivative cause of

action that is not independently actionable.”) (citation omitted);

Resol. Tr. Corp. v. Heiserman, 898 P.2d 1049, 1055 (Colo. 1995)

(concluding that the term “tortious act” in section 13-21-111.5(4)

“includes any conduct other than breach of contract that constitutes

a civil wrong and causes injury or damages”) (emphasis added).

¶ 65 Finally, we disagree with plaintiffs that the district court did

not make sufficient findings to permit appellate review. The district

court found there was no “evidence of any wrongdoing” on the part

of Sheree. Implicit in this finding was that Sheree did not breach

any contractual duty or knowingly fail to disclose anything she was

required to disclose. The court’s comments during plaintiffs’ closing

argument fleshed out this finding, as the court indicated that (1) a

person cannot be liable solely for serving as a power of attorney;

(2) Sheree’s role was limited to signing documents; and (3) there

was no evidence Sheree knew her daughter had used

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methamphetamine in the home. Because these findings have

record support, we will not disturb them. See Amos, ¶ 25.

¶ 66 Thus, the district court did not clearly err in finding that

Sheree was not liable to plaintiffs on their claims.

VII. Disposition

¶ 67 The case is remanded for the district court to award plaintiffs

prejudgment interest. The judgment is otherwise affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.

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