Susan Flynn v. Scott

24CA0004 Susan Flynn v Scott 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0004
Pitkin County District Court No. 22CV30105
Honorable Christopher G. Seldin, Judge

Susan D. Flynn Revocable Trust,

Plaintiff-Appellee,

v.

Joseph Arnold Scott,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE BROWN
J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Ferguson Schindler Law Firm, P.C., Mathew C. Ferguson, Lyndsey R. Pere,
Aspen, Colorado, for Plaintiff-Appellee

Wegener Lane & Evans, P.C., Meaghan E. Fischer, Golden, Colorado,
Defendant-Appellant
¶1 This matter arises out of a residential lease dispute between

defendant, Joseph Arnold Scott, and his landlord, plaintiff, Susan

D. Flynn Revocable Trust (Landlord). Scott appeals the district

court’s judgment in favor of Landlord on Scott’s counterclaims

relating to Landlord’s breach of the warranty of habitability.

Because we agree with the division’s decision in Anderson v. Shorter

Arms Investors, LLC, 2023 COA 71, and conclude that Scott failed

to properly preserve the balance of his contentions for appeal, we

affirm the district court’s judgment. We remand the case to the

district court to determine the amount of reasonable appellate

attorney fees to be awarded to Landlord.

I. Background

¶2 Beginning in September 2021, Scott leased a residence from

Landlord in Snowmass Village, Colorado. On July 18, 2022, Scott

discovered a minor water leak in an upstairs toilet tank; water had

drained down into the ceiling of the den below. Landlord’s property

manager immediately hired a plumber to fix the leak and

subsequently retained a remediation company to address the water

damage.

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¶3 Although the remediation company had completed its work by

late August, Scott remained concerned about the possible presence

of mold and elevated moisture levels in the residence and hired his

own expert consultant to investigate. As a result of his concerns,

Scott also stopped paying rent for August and September. Scott’s

consultant found no evidence of mold in the residence.

Nonetheless, on September 21, Scott’s real estate broker notified

Landlord that Scott “needs to move out of the property” because

“there is still a high level of moisture in the house and standing

water in the basement which will exacerbate [Scott’s] health

conditions and interfere with his health and safety.”

¶4 In November, Landlord filed its complaint against Scott,

asserting claims for (1) breach of the lease and (2) breach of the

implied covenant of good faith and fair dealing. Scott filed an

answer denying Landlord’s claims and asserted counterclaims for

(1) breach of contract and (2) violation of the warranty of

habitability under section 38-12-503, C.R.S. 2019.1

1 Section 38-12-503, C.R.S. 2019, was in effect at the time of the

events at issue, and we refer to that version throughout this
opinion. The statute has since been amended.

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¶5 After a two-day bench trial in November 2023, the district

court concluded that Scott had breached the lease and that his

warranty of habitability counterclaim failed because he had not

provided Landlord permission to enter the property to make repairs

as required by section 38-12-503. The court entered judgment in

favor of Landlord on its claim for breach of the lease and against

Scott on his counterclaims. Scott appeals the court’s judgment on

his counterclaim for breach of the warranty of habitability.

II. Scott’s Anderson Contentions

¶6 In rejecting Scott’s counterclaim for breach of the warranty of

habitability, the district court relied on Anderson, 2023 COA 71,

which held that, for conditions falling within the statutory definition

of “uninhabitable,” the tenant must provide “reasonably complete

written or electronic notice” that includes “permission to the

landlord or to the landlord’s authorized agent to enter the

residential premises.” Id. at ¶ 9 (quoting § 38-12-503(2)(b)). As

relevant here, a residence is “deemed uninhabitable if . . . [t]here is

mold that is associated with dampness, or there is any other

condition causing the residential premises to be damp, which

condition, if not remedied, would materially interfere with the

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health or safety of the tenant.” § 38-12-505(1)(a), C.R.S. 2024. The

Anderson division also held that the statute requires strict

compliance with the notice requirements. Anderson, ¶ 17.

¶7 On appeal, Scott contends that the district court erred by

relying on Anderson because that case was wrongly decided.

Specifically, he contends that Anderson incorrectly determined that

strict compliance with the statute’s notice provisions is required.

Instead, he advocates for a substantial compliance standard,

emphasizing that this standard is consistent with the statute’s

purpose to improve the quality of housing. He also contends that

Anderson incorrectly held that notice of mold conditions must

include permission for the landlord to enter the premises under

section 38-12-503(2)(b)(II). Instead, he argues that

section 38-12-503(2.2) applies to mold conditions and does not

require permission to enter.

¶8 Alternatively, Scott contends that the court erred by

incorrectly applying Anderson to his counterclaim. Specifically, he

argues that because the mold “materially interfere[d] with [his] life,

health, or safety,” he was not obligated to provide contemporaneous

permission for Landlord to enter the property. § 38-12-503(2)(a)(II),

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(b)(I). He also argues that, because the lease agreement granted

Landlord the right to enter the premises, he did not need to give

additional permission along with his notice of the mold condition.

See Anderson, ¶¶ 72-75 (Schutz, J., dissenting) (concluding that a

lease provision authorizing the landlord to enter the premises

satisfied the requirement in section 38-12-503(2)(b)(II) that the

tenant provide permission to enter “with the notice”).

¶9 As evidence of preservation, Scott points to an exchange that

took place between the district court and his counsel at the end of

trial. Following Landlord’s counsel’s closing argument, which

addressed Scott’s failure to provide the requisite statutory notice to

support his claim for breach of the warranty of habitability, the

court turned to Scott’s counsel and explained that its “reading of

[Anderson] is that in order to essentially activate the . . . statutory

machinery in the implied warranty of habitability, you have to send

the proper notice.” The court asked Scott’s counsel to “point [it] to

a notice that . . . specifically gives landlord permission to enter to

remediate the hazard claims.” Scott’s counsel responded that the

notice the court was looking for did not exist.

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¶ 10 Counsel argued only that “the Anderson case was published in

2023[,] and it is a matter of first impression for the court,” adding

that Scott “didn’t know” of the statutory notice requirements

addressed in Anderson. The court explained that it did not “possess

the discretion to ignore a ruling of the Court of Appeals that is on

point” and concluded that the claim failed “given the lack of proper

notice.” But the court did not “want to preclude [counsel] from

making a record for appeal,” noting that Anderson may not have

been reviewed yet by the Colorado Supreme Court. So the court

asked Scott’s counsel, “Anymore record you want to make on that?”

Scott’s counsel simply responded, “Not on that issue, Your Honor.”

¶ 11 An issue is preserved for appeal when it is brought to the

court’s attention, and the court has an opportunity to rule on it. In

re Marriage of Turilli, 2021 COA 151, ¶ 12. Preservation does not

require that a party use talismanic language, In re Estate of Owens,

2017 COA 53, ¶ 21, but it does require that a party present the

“sum and substance of the argument it now makes on appeal” to

the trial court, Berra v. Springer & Steinberg, P.C., 251 P.3d 567,

570 (Colo. App. 2010) (citing People v. Silva, 987 P.2d 909, 913

(Colo. App. 1999)).

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¶ 12 Although the district court confronted Scott’s counsel with

Anderson and provided her ample opportunity to develop a record

for appeal, Scott’s counsel did not argue that (1) the condition

about which Scott complained did not require notice that included

permission to enter because it fell under section 38-12-503(2)(b)(I),

a different provision of the statute than the one analyzed in

Anderson; or (2) Scott did not have to give permission to enter with

the notice because the parties’ lease agreement already provided the

requisite permission. Counsel’s arguments that Anderson

addressed “a matter of first impression” and that Scott was

unaware of how Anderson interpreted the statute’s notice

requirements did not present the court with an opportunity to

consider or rule on the issues Scott now raises on appeal. See

Berra, 251 P.3d at 570. Nor has Scott pointed us to any exception

to the preservation requirements that would enable us to reach the

merits of his contentions. As a result, we conclude that these

issues were not preserved, and we decline to address them further.

See Gestner v. Gestner, 2024 COA 55, ¶ 18 (“[I]ssues not raised in

or decided by the district court generally will not be addressed for

the first time on appeal.”).

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¶ 13 However, with respect to Scott’s contentions that (1) Anderson

was wrongly decided because (a) strict compliance with the statute’s

notice requirement should not be required, or (b) permission to

enter is not required for notice of mold conditions, which is

governed only by section 38-12-503(2.2), we are not convinced that

Scott had to preserve such contentions because the district court

was bound to follow Anderson and any argument to the contrary

would have been futile. See, e.g., M.T. v. Superior Ct., 101 Cal. Rptr.

3d 183, 188 (Ct. App. 2009) (failing to make a futile objection does

not constitute waiver). Even so, we see no reason to depart from

Anderson.

¶ 14 As Anderson explained, strict compliance with the notice

requirement in section 38-12-503(2)(b) is necessary because the

required notice is “not merely a . . . precondition for filing a claim

for breach of warranty” but “is an element that must be established

before a landlord can be found liable for breaching the warranty.”

Anderson, ¶ 17; see § 38-12-503(2) (a landlord breaches the

warranty of habitability “if . . . [t]he landlord has received

reasonably complete written or electronic notice of the condition”

and fails to rectify the condition within the statutory timeframes).

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We also agree with Anderson that section 38-12-503(2)(b)(II) applies

to conditions falling within the statutory definition of

“uninhabitable,” § 38-12-503(2)(a)(I), which include conditions

relating to “mold that is associated with dampness,”

§ 38-12-505(1)(a); Anderson, ¶¶ 9, 28. For its part, section

38-12-503(2.2) “simply lays out with greater specificity what a

landlord is required to do upon being notified of a mold problem”; it

does not set different requirements for notice related to mold

conditions. Anderson, ¶ 27.

¶ 15 Because Anderson was not wrongly decided, Scott’s

contentions fail. Even though the allegedly uninhabitable condition

was related to mold, Scott was required to strictly comply with the

notice requirements in section 38-12-503(2)(b)(II) and provide

Landlord permission to enter the property.

III. Landlord’s Improper Cross-Appeal

¶ 16 We note that Landlord’s briefs in this matter include

cross-appeal arguments. Because Landlord failed to file a notice of

cross-appeal, however, these arguments were struck by a prior

order of this court. See Leverage Leasing Co. v. Smith, 143 P.3d

1164, 1167-68 (Colo. App. 2006) (“In general, an appellee must file

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a cross-appeal before the appellate court may consider an alleged

trial court error that prejudiced the appellee”; the appellee may “not

seek to increase its rights under the judgment” without filing a

cross-appeal.).

IV. Request for Appellate Attorney Fees and Costs

¶ 17 Both parties have requested appellate attorney fees pursuant

to a provision of the lease that provides as follows: “In the event of

any dispute, arbitration, or litigation between Landlord and Tenant

arising out of or in any way related to this Agreement, the prevailing

party shall be entitled to recover its costs and reasonable attorneys’

fees from the non-prevailing party.”

¶ 18 Because Landlord is the prevailing party in this appeal, we

award it reasonable appellate attorney fees. See C.A.R. 39.1. We

remand the case to the district court to determine the amount of

fees to award to Landlord, which should be reduced by any time

spent on the “cross-appeal” arguments that were not properly

before us. Landlord is also entitled to appellate costs. C.A.R. 39.

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V. Disposition

¶ 19 We affirm the district court’s judgment and remand for the

court to determine the amount of reasonable appellate attorney fees

to be awarded to Landlord.

JUDGE J. JONES and JUDGE YUN concur.

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