Wilkerson v. Federal Credit

24CA0835 Wilkerson v Federal Credit 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0835
City and County of Denver District Court No. 23CV30518
Honorable Christopher J. Baumann, Judge

Curtis Wilkerson,

Plaintiff-Appellant,

v.

Federal Credit LLC and Joseph Cornell,

Defendants-Appellees.

JUDGMENT AND ORDER AFFIRMED
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE LUM
Lipinsky and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 17, 2025

Burk & Burk, Robert E. Burk, Centennial, Colorado, for Plaintiff-Appellant

Carver Law, LLC, John D. Carver, Breckenridge, Colorado, for Defendants-
Appellees
¶1 Plaintiff, Curtis Wilkerson, appeals the district court’s

dismissal of his complaint against defendants, Federal Credit LLC

and Joseph Cornell, along with the district court’s entry of a

judgment against him in the forcible entry and detainer (FED)

proceeding that was consolidated with this case. We affirm.

I. Background

¶2 This appeal stems from Wilkerson’s two leases of property that

he owned until 2001 and in which he then continued to reside as a

tenant. In 2001, he quitclaimed the property to his mother, who, in

turn, sold it to Jr. E. Aragon. In 2004, Wilkerson and Aragon

purportedly entered into a twenty-year lease (2004 lease) that gave

Wilkerson an option to purchase the property for $50,000 at any

point during the lease term. Under the lease, monthly rent was

$500, and any amounts Wilkerson paid in excess of the rent would

be applied toward the $50,000 purchase price.

¶3 Aragon lost the property through foreclosure. In 2009,

Federal Credit, which Cornell owned and managed,1 purchased the

1 Our references to Federal Credit throughout this opinion

encompass Cornell as well, except where we discuss Cornell’s
actions and statements in his individual capacity.

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property at the foreclosure sale. After the purchase, Federal Credit

informed Wilkerson that he needed to pay $1,000 in monthly rent

or vacate the premises. Wilkerson argued that the 2004 lease was

still in effect and said he was exercising his purchase option. After

Federal Credit refused to honor the purchase option, Wilkerson

complied with Federal Credit’s rental terms and continued residing

at the property.

¶4 In 2012, Federal Credit served Wilkerson with a notice to

vacate. When Wilkerson refused to leave, Federal Credit filed an

FED action. In his answer to the FED complaint, Wilkerson raised

an affirmative defense under the Protecting Tenants at Foreclosure

Act of 2009 (PTFA), 12 U.S.C. § 5220, and argued that the 2004

lease remained in effect. Instead of litigating the PTFA defense and

the validity of the 2004 lease, however, the parties settled the case

and filed a stipulation in county court outlining (1) the basic terms

of a new lease; (2) the parties’ agreement that Federal Credit could

obtain a judgment for possession if the new lease wasn’t signed

within a week; and (3) the parties’ understanding that “all previous

issues and leases have been resolved.”

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¶5 Shortly after the court entered an order approving the

stipulation, Wilkerson moved to set the stipulation aside, again

citing the PTFA. After additional proceedings, the court denied

Wilkerson’s motion, and the parties then executed a five-year lease

(2012 lease), which became a month-to-month lease after the

conclusion of the five-year term.

¶6 In 2014, Federal Credit initiated a second FED action after

Wilkerson failed to comply with the terms of the 2012 lease. In his

answer to the complaint in that action, Wilkerson asserted that he

was entitled to occupy the property under the 2012 lease and raised

an affirmative defense under the PTFA.

¶7 After a hearing, the county court ruled against Wilkerson and

issued a judgment for possession in favor of Federal Credit.

Wilkerson unsuccessfully appealed that ruling. Nonetheless,

Federal Credit never enforced the judgment for possession and

Wilkerson continued occupying the property under the terms of the

2012 lease.

¶8 In late 2022, Federal Credit again served Wilkerson with a

notice to vacate and sought to terminate the 2012 lease. Wilkerson

didn’t vacate the property and instead filed the action underlying

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this appeal. In that action, he pleaded claims for declaratory relief,

breach of contract, and unjust enrichment. Federal Credit filed a

C.R.C.P. 12(b)(5) dismissal motion, which the district court granted.

¶9 Before the court dismissed Wilkerson’s claims, Federal Credit

filed a third FED action, which was consolidated into the action

that Wilkerson initiated. After an FED hearing (2024 hearing), the

district court granted Federal Credit’s motion for judgment of

possession, motion to inspect the property, and motion to release

rents paid into the court registry during the pendency of the case.

¶ 10 Wilkerson appeals the district court’s dismissal of his

complaint and the judgment in favor of Federal Credit at the 2024

hearing.

II. C.R.C.P. 12(b)(5) Dismissal

¶ 11 Wilkerson argues that the district court erred by dismissing

his complaint. We disagree.

A. Additional Procedural Background

¶ 12 In his complaint, Wilkerson sought a declaratory judgment

that the 2004 lease was valid and enforceable, the 2012 lease was

invalid, and Federal Credit was required to transfer the property to

him under the 2004 lease. Wilkerson also brought claims for (1)

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breach of contract, based on Federal Credit’s refusal to honor the

2004 lease’s purchase option; and (2) unjust enrichment in the

amount of $120,000 — the total rent Wilkerson paid to Federal

Credit above the $500 monthly rent specified in the 2004 lease,

which, under the lease’s terms, would be credited toward

Wilkerson’s purchase of the property.

¶ 13 The district court concluded that Wilkerson’s declaratory

judgment claim was barred (1) because Wilkerson failed to assert it

as a compulsory counterclaim in the prior FED actions and (2)

under the claim preclusion doctrine. The court further concluded

that Wilkerson’s breach of contract and unjust enrichment claims

“necessary fail[ed]” because they were predicated on the validity of

the 2004 lease and the court had denied Wilkerson’s claim for a

declaratory judgment that the 2004 lease was valid and enforceable.

B. Standard of Review and Applicable Law

¶ 14 We review de novo a district court’s dismissal of an action

under C.R.C.P. 12(b)(5). Sweeney v. United Artists Theater Circuit,

Inc., 119 P.3d 538, 539 (Colo. App. 2005). “Accepting all allegations

in the complaint as true and viewing them in the light most

favorable to the plaintiff, the trial court properly grants a C.R.C.P.

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12(b)(5) motion only where the plaintiff’s factual allegations cannot,

as a matter of law, support a claim for relief.” Bly v. Story, 241 P.3d

529, 533 (Colo. 2010).

¶ 15 C.R.C.P. 13(a) provides, “A pleading shall state as a

counterclaim any claim which at the time of filing the pleading the

pleader has against any opposing party, if it arises out of the

transaction or occurrence that is the subject matter of the opposing

party’s claim.” A counterclaim is compulsory if it is “logically

related” to a claim brought by the opposing party. Dinosaur Park

Invs., L.L.C. v. Tello, 192 P.3d 513, 517 (Colo. App. 2008) (quoting

Visual Factor, Inc. v. Sinclair, 441 P.2d 643, 645 (Colo. 1968)); see

also McCabe v. United Bank of Boulder, 657 P.2d 976, 978 (Colo.

App. 1982) (Logical relationship is “a broad, flexible, and practical

standard, which prevents the filing of a multiplicity of actions and

encourages the resolution of all disputes arising out of a common

factual matrix in a single lawsuit.”). Both compulsory

counterclaims and affirmative defenses are waived if they are not

asserted in a responsive pleading. Dinosaur Park Invs., 192 P.3d at

517. “The failure to plead a claim properly classified as a

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compulsory counterclaim bars any later action on the claim.” In re

Estate of Krotiuk, 12 P.3d 302, 304 (Colo. App. 2000).

¶ 16 Exceptions to the compulsory counterclaim rule apply “[w]hen

a pleader fails to set up a counterclaim through oversight,

inadvertence, or excusable neglect, or when justice requires.”

C.R.C.P. 13(f). Under such circumstances, the pleader may seek

“leave of court [to] set up the counterclaim by amendment.” Id.

The supreme court has concluded that excusable neglect exists

“when the surrounding circumstances would cause a reasonably

careful person similarly to neglect a duty.” Goodman Assocs., LLC

v. WP Mountain Props., LLC, 222 P.3d 310, 319 (Colo. 2010)

(quoting In re Weisbard, 25 P.3d 24, 26 (Colo. 2001)) (describing

excusable neglect in the context of moving to set aside a default

judgment pursuant to C.R.C.P. 60(b)).

C. Analysis

¶ 17 Wilkerson doesn’t contest the district court’s conclusion that

his claims regarding the validity of the 2004 lease and the invalidity

of the 2012 lease were compulsory counterclaims in the 2014 FED

action. Instead, he argues that his failure to raise those issues

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should be excused under C.R.C.P. 13(f)’s “excusable neglect” and

“when justice requires” exceptions.

¶ 18 Wilkerson argues that his failure to assert the validity of the

2004 lease in the 2014 FED action constituted excusable neglect

because he was under duress from the threat of eviction.

Specifically, he contends that (1) he was an “unsophisticated”

litigant who was self-represented at times; (2) he only agreed to the

2012 lease and stipulation to “appease [Federal Credit] so he and

his family would not get evicted”; (3) he was left with no choice but

to comply with the 2012 lease’s terms; and (4) the “economic

duress” continued into 2014, preventing him from raising

compulsory counterclaims. For the same reasons, he argues that

justice now requires that he be permitted to pursue his claims.

While we acknowledge the stress that an eviction proceeding

undoubtedly causes a tenant, we reject Wilkerson’s contentions.

¶ 19 We disagree that C.R.C.P. 13(f) is applicable. The 2014 FED

action was completed more than ten years ago, and the Rule’s

language — that a party “may by leave of court set up the

counterclaim” — contemplates amending pleadings to include an

omitted counterclaim before a final decision in the case is reached.

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Wilkerson doesn’t cite, and we haven’t found, any case applying

C.R.C.P. 13(f) to excuse a party’s failure to bring compulsory

counterclaims years after the litigation ended. See Allen v. Martin,

203 P.3d 546, 555 (Colo. App. 2008) (“The purpose of C.R.C.P. 13(a)

is to prevent a multiplicity of lawsuits arising from one set of

circumstances.”).

¶ 20 Even if C.R.C.P. 13(f) applied, however, Wilkerson doesn’t cite

any Colorado case holding that economic pressure and the

possibility of eviction (1) constitute “excusable neglect” or (2) create

a circumstance in which “justice requires” the court to excuse a

failure to raise compulsory counterclaims. And even if that were

the case, Wilkerson’s actions throughout the 2012 and 2014 FED

cases were inconsistent with his argument that he was under such

pressure from Federal Credit that he simply acquiesced to its

demands to avoid eviction. To the contrary, Wilkerson (1) raised

affirmative defenses in the 2012 FED action; (2) moved to set aside

the 2012 stipulation and appealed the denial of his motion; (3)

defended against the 2014 FED action (but, notably, didn’t argue

that the 2004 lease remained in effect or that the 2012 lease was

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invalid); and (4) attempted to appeal the 2014 FED ruling granting

Federal Credit a judgment for possession.

¶ 21 To the extent Wilkerson argues that he didn’t intentionally

waive his claims relating to the 2004 lease, his argument is

unavailing. Our case law is clear that the failure to assert a

compulsory counterclaim results in a waiver, and no language

suggests that the failure must be the result of an intentional act.

See, e.g., Estate of Krotiuk, 12 P.3d at 304; Dinosaur Park Invs., 192

P.3d at 517.

¶ 22 For these reasons, we conclude that the district court didn’t

err by dismissing Wilkerson’s declaratory judgment claim. Because

of our disposition, we need not address Wilkerson’s arguments

regarding the claim preclusion doctrine’s applicability to his

declaratory judgment claim.

¶ 23 Lastly, we note that Wilkerson argues that the district court

erred by concluding that his breach of contract and unjust

enrichment claims are barred by the doctrine of claim preclusion.

However, the court didn’t dismiss those claims on that basis. It

dismissed them because it concluded that they were premised on

the validity of the 2004 lease. Because Wilkerson doesn’t challenge

10
that conclusion, we reject any contention (to the extent he makes it)

that the district court erred by dismissing those claims.

III. Underlying FED Action

¶ 24 Wilkerson next argues that the district court reversibly erred

by ruling in Federal Credit’s favor at the 2024 FED hearing. We

disagree.

A. Standard of Review and Applicable Law

¶ 25 “A judgment following a bench trial presents a mixed question

of fact and law. We review the trial court’s factual findings under a

clear error standard, but review its legal conclusions de novo.”

Kroesen v. Shenandoah Homeowners Ass’n, 2020 COA 31, ¶ 55

(citation omitted).

¶ 26 A factual finding is clearly erroneous if it has no support in the

record. Lawry v. Palm, 192 P.3d 550, 558 (Colo. App. 2008).

“When the evidence is conflicting, a reviewing court may not

substitute its conclusions for those of the trial court merely because

there may be credible evidence supporting a different result.” Id.

¶ 27 To the extent Wilkerson argues that the 2012 lease is invalid,

the existence of a contract is a question of fact. Yaekle v. Andrews,

169 P.3d 196, 198-99 (Colo. App. 2007) (“[W]hen the existence of a

11
contract is at issue, and the evidence is conflicting or admits of

more than one inference, the factfinder decides whether a contract

in fact exists.”), aff’d on other grounds, 195 P.3d 1101 (Colo. 2008).

B. Analysis

¶ 28 After the 2024 hearing, the district court granted Federal

Credit possession of the property based on the 2012 lease, and it

granted Federal Credit’s motions for property inspection and to

release rents Wilkerson had deposited into the court registry

pending a ruling on the FED action and Federal Credit’s motion to

dismiss Wilkerson’s complaint. The court also denied Wilkerson’s

oral motion for a stay to file an appeal of its decision. Wilkerson

appeals these rulings.

¶ 29 Wilkerson seeks reversal of the judgment for possession

because, he argues, the district court erred by finding that the 2012

lease was valid and enforceable. He argues that the court’s decision

lacked record support and “gave no credence to [his] testimony.”

We disagree.

¶ 30 The district court’s findings regarding the existence and

validity of the 2012 lease were supported by the record, including

(1) the lease itself, signed by Wilkerson and Cornell, as agent for

12
Federal Credit; (2) Cornell’s testimony about the lease; (3)

Wilkerson’s answer in the 2014 proceeding acknowledging the 2012

lease’s terms; and (4) Wilkerson’s actions in conformity with the

2012 lease. While Wilkerson points to conflicting evidence and

argues that Cornell’s testimony wasn’t credible, the resolution of

evidentiary conflicts and credibility determinations are the trial

court’s sole province. Lawry, 192 P.3d at 558; Yaekle, 169 P.3d at

198-99. Accordingly, we won’t reverse the district court’s findings.

¶ 31 Wilkerson’s arguments regarding the district court’s rulings on

the motion for property inspection, motion for release of registry

funds, and motion for stay are all premised on his argument that

the district court erred by finding that the 2012 lease was valid and

enforceable. Because we conclude that the district court didn’t err

in that regard, we necessarily reject these contentions.

IV. Attorney Fees

¶ 32 Federal Credit seeks an award of appellate attorney fees

pursuant to a provision of the 2012 lease that states, “[Federal

Credit] and [Wilkerson] agree that the Court shall award the

prevailing party in any eviction, unlawful detainer, or action

brought under [section] 13-40-101[, C.R.S. 2024,] . . . their

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reasonable attorneys’ fees and costs.” The lease further states that

Wilkerson shall pay Federal Credit’s attorney fees if Federal Credit

prevails in “any action . . . connected with [the 2012 lease],

regardless of whether such claim is based on contract, tort, or other

legal theory.”

¶ 33 Because this action is plainly “connected with” the 2012 lease,

we agree that Federal Credit is entitled to an award of its reasonable

attorney fees under this fee-shifting provision. See, e.g., In re Estate

of Gattis, 2013 COA 145, ¶ 45 (awarding appellate attorney fees

pursuant to fee-shifting provision in underlying agreement).

However, because the district court is in a better position than we

are to determine the amount of such fees, we exercise our discretion

under C.A.R. 39.5 and remand for the district court to determine

and award Federal Credit a reasonable amount of appellate attorney

fees.

¶ 34 We deny Federal Credit’s request for attorney fees under

section 13-17-102(4), C.R.S. 2024. Though Wilkerson did not

prevail, we do not conclude that his claims were so baseless as to

lack substantial justification. In re Estate of Shimizu, 2016 COA

163, ¶ 34 (stating that awards of appellate attorney fees under

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section 13-17-102 are “appropriate only in clear and unequivocal

cases where no rational argument is presented and, thus, the

appeal is frivolous”).

V. Disposition

¶ 35 The judgment and order are affirmed, and the case is

remanded to the district court for determination of the amount of

appellate attorney fees awardable to Federal Credit.

JUDGE LIPINSKY and JUDGE PAWAR concur.

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