Schmitz v. BBVA

24CA1800 Schmitz v BBVA 12-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1800
El Paso County District Court No. 21CV31746
Honorable David Prince, Judge

Scott Schmitz, Sandy Schmitz, Louis Taloumis, Lori Taloumis, Brandon Tripp,
Jill Tripp, Michael Zachar, and Kelly Clarkson,

Plaintiffs-Appellees,

v.

BBVA USA Bancshares, Inc., BBVA USA, Ashley Burgan, and Scott Smith,

Defendants-Appellants.

APPEAL DISMISSED

Division II
Opinion by JUDGE BROWN
Fox and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 31, 2025

First & Fourteenth PLCC, Edward A. Gleason, Julian R. Ellis, Jr., Colorado
Springs, Colorado, for Plaintiffs-Appellees

Ballard Spahr LLP, Matthew A. Morr, Andrew Valencia, Denver, Colorado, for
Defendants-Appellants BBVA USA Bancshares, Inc. and BBVA USA

Timothy F. Brewer, PC, Timothy F. Brewer, Colorado Springs, Colorado, for
Defendants-Appellants Ashley Burgan and Scott Smith
¶1 Defendants, BBVA USA Bancshares, Inc., its subsidiary BBVA

USA, and its employees Ashley Burgan and Scott Smith

(collectively, lender), appeal the district court’s order denying their

request for an award of attorney fees and costs incurred defending

claims brought by plaintiffs, Scott and Sandy Schmitz, Louis and

Lori Taloumis, Brandon and Jill Tripp, and Michael Zachar and

Kelly Clarkson (collectively, borrowers). We dismiss lender’s appeal

as moot.

I. Analysis

¶2 In October 2021, borrowers sued lender, asserting claims for

violation of the Colorado Consumer Protection Act, fraud,

fraudulent concealment, negligent misrepresentation, negligence,

unjust enrichment, and civil conspiracy. The district court granted

lender’s C.R.C.P. 56 motion and entered summary judgment

against borrowers on all claims. Lender moved for an award of

attorney fees and costs, but the court denied the request.

¶3 Borrowers appealed the summary judgment order. In an

opinion we announce today, we reverse the judgment in part and

affirm it in part, and remand the case for further proceedings. See

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Schmitz v. BBVA, slip op. at ¶ 74 (Colo. App. No. 24CA1392, Dec.

31, 2025) (not published pursuant to C.A.R. 35(e)).

¶4 When a judgment is reversed, the parties return to the same

position they were in before the judgment entered, Sharon v. SCC

Pueblo Belmont Operating Co., 2019 COA 178, ¶ 17, and “an award

that is dependent on that judgment for its validity . . . becomes a

nullity,” Bainbridge, Inc. v. Douglas Cnty. Bd. of Comm’rs, 55 P.3d

271, 273–74 (Colo. App. 2002); see Reyher v. State Farm Mut. Auto.

Ins. Co., 2012 COA 58, ¶ 32 (“[B]ecause the judgment dismissing

[plaintiff]’s claims was reversed in [a prior appeal], the costs and

fees related to that dismissal must also be reversed.”). As a result,

lender’s appeal of the order denying its request for attorney fees is

moot and must be dismissed. DePriest v. People, 2021 CO 40, ¶ 8

(An issue is moot on appeal when “any relief granted by the court

would have no practical effect.”).

II. Disposition

¶5 We dismiss the appeal as moot.

JUDGE FOX and JUDGE MEIRINK concur.

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