Rivera v. Fort

24CA0856 Rivera v Fort 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0856
Douglas County District Court No. 23CV30570
Honorable Andrew C. Baum, Judge

Obed Rivera,

Plaintiff-Appellant,

v.

Paul R. Fort,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE JOHNSON
Lipinsky and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

Furtado Law PC, David J. Furtado, Robert E. Roetzel, Denver, Colorado, for
Plaintiff-Appellant

Jachimiak Peterson Kummer LLC, Andrew D. Peterson, Taylor A. Clapp,
Lakewood, Colorado, for Defendant-Appellee
¶1 Plaintiff, Obed Rivera (Rivera), appeals the district court’s

order dismissing his negligence claim against defendant, Paul R.

Fort (Fort).

¶2 Rivera contends that the district court erred by finding that

equitable tolling did not extend the statute of limitations for his

negligence claim because, in Rivera’s earlier case against Fort, Fort

engaged in wrongful conduct by evading service of process. We

conclude that the district court did not err by dismissing Rivera’s

claim because Rivera filed it beyond the statute of limitations and

he alleged no facts to support a basis for equitable tolling. We also

conclude that Fort is entitled to an award of his reasonable

appellate attorney fees and costs. Thus, we affirm.

I. Background

¶3 On May 2, 2020, Fort performed plumbing services at Rivera’s

residence in which Fort used a gas torch to solder copper piping.

On that same day, a fire started inside the walls of Rivera’s

residence, causing extensive damage and rendering the property

uninhabitable. On September 30, 2021, Rivera filed a case,

Douglas County District Court Case No. 21CV30695, against Fort

and Fort’s employer (the 2021 case), alleging that Fort’s negligent

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work caused the fire.1 Rivera asserted that Fort’s employer was his

brother’s company.

¶4 While Rivera was able to serve the complaint on Fort’s

employer, he was never able to effectuate service on Fort in the

2021 case. In April 2022, Rivera requested that the court allow him

to serve Fort through substituted service; the court denied that

request but granted Rivera a thirty-day extension of time to

effectuate service on Fort. So that he could proceed with his claim

against the employer, Rivera filed a motion to dismiss his claim

against Fort without prejudice, which the district court granted on

May 27, 2022. This dismissal occurred after the statute of

limitations for Rivera’s claim against Fort had expired. Rivera

settled the 2021 case with Fort’s employer before trial.

¶5 On July 22, 2023, Rivera effectuated service on Fort in a new

action (the 2023 case), pursuant to C.R.C.P. 3(a), which allows a

plaintiff to initiate an action with service of the summons and

1 The case file from Douglas County Court Case No. 2021CV30695

is not part of the record on appeal. We take judicial notice of
certain filings in the 2021 case, however, because they are
referenced in this appeal. See Walker v. Van Laningham, 148 P.3d
391, 397-98 (Colo. App. 2006) (an appellate court may take judicial
notice of related court documents).

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complaint on a defendant so long as the complaint is filed with the

court with fourteen days from the service date. In the 2023 case,

which Rivera filed on July 27, 2023, he again alleged that Fort

negligently caused the fire at Rivera’s residence.

¶6 Fort sought to dismiss the 2023 case on the grounds that the

two-year statute of limitations for negligence actions under section

13-80-102(1)(a), C.R.S. 2024, had expired. In response, Rivera

argued that the two-year limitations period stopped running during

the pendency of the 2021 case, and alternatively, that the

limitations period should be equitably tolled. After briefing, the

district court dismissed the 2023 case, with prejudice, finding that

it was time barred. The court determined that the doctrine of

equitable tolling did not apply, reasoning that Rivera’s complaint

had not pled that equitable tolling should apply. In its dismissal

order, the court said that the parties would be responsible for their

own respective costs and attorney fees.

¶7 At Fort’s request, the court amended its dismissal order to

award Fort his attorney fees and costs under section 13-17-201(1),

C.R.S. 2024, because Rivera’s complaint was dismissed under

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C.R.C.P. 12(b)(5). Rivera appeals the orders dismissing the 2023

case and awarding attorney fees and costs to Fort.

II. Statute of Limitations and Equitable Tolling

¶8 Rivera contends that the district court erred by finding that

the two-year statute of limitations for his negligence claim against

Fort was not equitably tolled.

A. Standard of Review and Applicable Law

¶9 “We review de novo a trial court’s decision to grant a C.R.C.P.

12(b)(5) motion to dismiss.” Wagner v. Grange Ins. Ass’n, 166 P.3d

304, 307 (Colo. App. 2007).

¶ 10 “[C]laims for negligence are subject to a two-year limitations

period.” SMLL, L.L.C. v. Daly, 128 P.3d 266, 269 (Colo. App. 2005)

(citing § 13-80-102(1)(a)). Under section 13-80-108(1), C.R.S. 2024,

a cause of action for injury to property accrues “on the date both

the injury and its cause are known or should have been known by

the exercise of reasonable diligence.” “Absent a specific statutory

provision, Colorado law does not allow for the tolling of a statute of

limitations during the pendency of a prior action.” SMLL, L.L.C. v.

Peak Nat’l Bank, 111 P.3d 563, 565 (Colo. App. 2005).

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¶ 11 Although Colorado recognizes the doctrine of equitable tolling,

it “is limited to situations in which either the defendant has

wrongfully impeded the plaintiff’s ability to bring the claim or truly

extraordinary circumstances prevented the plaintiff from filing his

or her claim despite diligent efforts.” Dean Witter Reynolds, Inc. v.

Hartman, 911 P.2d 1094, 1099 (Colo. 1996).

¶ 12 “[A] party who contends that the statute of limitations should

be tolled has the burden to establish a basis for such tolling.” Peak

Nat’l Bank, 111 P.3d at 565.

B. Analysis

¶ 13 For two reasons, we affirm the district court’s dismissal of the

2023 case.

¶ 14 First, the district court was correct that the statute of

limitations on Rivera’s negligence claim against Fort expired before

Rivera filed the 2023 case. The claim accrued on May 2, 2020,

when the fire resulted in damage to Rivera’s residence. The statute

of limitations on the negligence claim was not tolled during the

pendency of the 2021 case. See King v. W. R. Hall Transp. &

Storage Co., 641 P.2d 916, 920 (Colo. 1982) (“Generally, when a

statute does not specifically allow for the tolling of a statute of

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limitations during the pendency of a prior action, a party cannot

deduct from the period of the statute of limitations applicable to his

case the time consumed by the pendency of an action in which he

sought to have the matter adjudicated, but which was dismissed

without prejudice as to him.”); Peak Nat’l Bank, 111 P.3d at 565.

Thus, the time for Rivera to file his negligence claim against Fort

expired on May 2, 2022 — more than a year before Rivera filed the

2023 case. Therefore, the district court did not err by granting

Fort’s motion to dismiss. Nonetheless, Rivera argues that the

statute of limitations for his negligence claim against Fort was tolled

or equitably tolled.

¶ 15 Second, Rivera failed to allege facts in the 2023 case

supporting his argument that equitable tolling should apply to his

negligence claim against Fort. We do not agree with the district

court that Rivera had to plead facts in his complaint in the 2023

case showing why equitable tolling should apply. Regardless,

Rivera failed to allege facts to meet his burden that equitable tolling

should apply in opposing Fort’s motion to dismiss.

¶ 16 Rivera contends that Fort engaged in wrongful conduct

because he knew about, and must have evaded service in, the 2021

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case. Rivera points to two main pieces of information supporting

these allegations: (1) email correspondence sent by Fort’s employer

in late June 2022 in which Fort claims he conducted Rivera’s

plumbing job as a side gig and not through his brother’s company;

and (2) Fort’s sworn statement dated March 30, 2023, filed as part

of Fort’s employer’s motion for summary judgment in the 2021

case. At most, this evidence shows that Fort knew about the 2021

case after Fort was dismissed from the case, but it does not prove

that Fort had knowledge about the case while he was still a named

defendant. Likewise, the information Rivera relies on does not

support his allegation that Fort acted wrongfully by evading service.

¶ 17 Indeed, to the extent that Rivera believed Fort was evading

service, especially given that Fort confirmed his whereabouts in the

March 2023 sworn statement, Rivera could have raised any

supported allegations of Fort’s misconduct by filing a C.R.C.P. 60(b)

motion in the 2021 case. See C.R.C.P. 60(b)(1) (allowing a court to

relieve a party from a final judgment or order if the party

establishes mistake, inadvertence, surprise, misconduct, or

excusable neglect); see also Taylor v. HCA-HealthONE LLC, 2018

COA 29, ¶¶ 9-10, 31 (directing the district court to reconsider the

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denial of plaintiff’s Rule 60(b) motion, which the plaintiff filed

shortly after the case was dismissed without prejudice, because the

plaintiff had served the defendant within a relatively short period of

time after entry of the dismissal order).

¶ 18 But simply filing another lawsuit without allegations to

support the argument that Fort evaded service does not relieve

Rivera of his burden to prove that equitable tolling applies.

Although we disagree that Rivera had to plead in his complaint

facts to support his claim that equitable tolling should apply to

extend the statute of limitations for his negligence claim against

Fort, we conclude that he failed to meet his burden to apply the

doctrine based on the information presented in the 2023 case.

Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406

(Colo. App. 2004).

¶ 19 And because we affirm the district court’s dismissal, we

necessarily also affirm its award of Fort’s attorney fees and costs.

III. Appellate Attorney Fees

¶ 20 Fort seeks an award of his appellate attorney fees and costs

pursuant to C.A.R. 39.1 and section 13-17-201(1).

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¶ 21 C.A.R. 39.1 provides, “If attorney fees are recoverable for the

appeal, the principal brief of the party claiming attorney fees must

include a specific request, under a separate heading, and must

explain the legal and factual basis for an award of attorney fees.”

We have discretion to determine if a party is entitled to an award of

attorney fees and the amount of those fees. Id.

¶ 22 Section 13-17-201(1) states that if an action “brought as a

result of a death or an injury to person or property occasioned by

the tort of any other persons” is dismissed on a motion of the

defendant prior to trial under C.R.C.P. 12(b), “such defendant shall

have judgment for his reasonable attorney fees in defending the

action.” We conclude that Fort is entitled to his appellate attorney

fees pursuant to C.A.R. 39.1 and section 13-17-201(1) because he

successfully defended the C.R.C.P. 12(b) dismissal order entered in

the 2023 case. Wilson v. Meyer, 126 P.3d 276, 284 (Colo. App.

2005) (“A party who successfully defends a dismissal order is

entitled to recover reasonable attorney fees incurred on appeal.”).

While Rivera opposes this request, he fails to state the legal or

factual basis underlying his position. See C.A.R. 39.1 (“Any

opposition to a request for attorney fees, and the legal and factual

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basis for the opposition, must be set forth in either the answer or

reply brief . . . .”).

¶ 23 Likewise, pursuant to C.A.R. 39(a)(2), because we affirm the

judgment, costs are taxed against the appellant. Thus, Fort is also

entitled to recover his appellate costs.

¶ 24 We remand the case to the district court for a determination of

the amount of reasonable attorney fees and costs Fort incurred on

appeal.

IV. Conclusion

¶ 25 The judgment is affirmed, and the case is remanded for the

district court to determine and award Fort his reasonable attorney

fees and costs incurred on appeal.

JUDGE LIPINSKY and JUDGE MOULTRIE concur.

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