Cotton v. Scholle

24CA2136 Cotton v Scholle 01-22-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2136
Routt County District Court No. 23CV30004
Honorable Michael A. O’Hara III, Judge

Christopher Cotton,

Plaintiff-Appellee,

v.

William Scholle,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE KUHN
Dunn and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 22, 2026

Ramos Law, Jared J. Mazzei, Jessica L. McBryant, Northglenn, Colorado, for
Plaintiff-Appellee

Garnett Powell Maximon Barlow & Farbes, Robert L. Barlow, Kristin L. Arthur,
Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, William Scholle, appeals the trial court’s pretrial

C.R.C.P. 56(h) order determining that he wasn’t entitled to recover

certain damages under the wrong-of-another doctrine from plaintiff,

Christopher Cotton. We affirm.

I. Background

¶2 One Saturday afternoon in January 2022, Cotton met up with

his girlfriend at a Steamboat Springs restaurant to celebrate the

sale of his townhome. After eating lunch and having at least one

margarita and a tequila shot at the restaurant, Cotton and his

girlfriend continued the celebration at a bar. There, he consumed

various alcoholic beverages, including multiple beers and bourbon

shots. Cotton stayed at the bar until evening, when he left his

girlfriend behind and, intoxicated, started to drive back home. He

didn’t remember much about what happened after that point.

¶3 The record shows that, instead of going home, Cotton drove

onto Scholle’s property about an hour and a half after he had left

the bar. He turned off a rural county road, went through an open

gate, and drove up a long driveway leading to Scholle’s newly

constructed residence, located about three-tenths of a mile from the

road. Upon approaching the residence, Cotton drove off the

1
driveway, down around the side of the home, and into the backyard,

before crashing into a snowbank. Stuck in the snow at an

unknown location, Cotton left a voicemail for his girlfriend: “Hey.

I’m stuck. I don’t know how to get out of it[.] Please. Give me a

call.”

¶4 Shortly thereafter, Scholle confronted Cotton, who was a

stranger to him, with a handgun while his wife and two minor

daughters remained inside the home. During this encounter,

Scholle ordered an unarmed Cotton to, among other things, walk

away from his car and lay face down on the concrete patio. Then

Scholle’s wife ordered Cotton to place his hands on his head while

lying on the ground. Cotton complied with these commands and

got down on the patio with his feet still in the snow. While on the

ground, however, Cotton told the Scholles that he was “freezin[g] to

death” and had to stand up. After getting up, he started to walk

toward the open patio sliding glass door where Scholle and his wife

were standing. Then Scholle shot Cotton once in the abdomen from

a close distance. Cotton suffered severe injuries but survived the

shooting.

2
¶5 In Routt County Case No. 22CR70, the district attorney’s office

charged Scholle with first degree assault with a deadly weapon,

felony menacing, and prohibited use of a weapon.1 A jury acquitted

him of all criminal charges.

¶6 In the meantime, Cotton filed the present civil action against

Scholle in connection with the shooting. Cotton asserted claims for

negligence, battery, and premises liability, pleading the latter two

claims in the alternative to the negligence claim. In response,

Scholle counterclaimed for trespass and intrusion upon seclusion.2

He also sought “attorney fees related to [Scholle’s] defense [in the

criminal case], which were proximately caused by . . . Cotton’s

intrusion.”

¶7 Before trial, Cotton filed a Rule 56(h) “Motion for [a]

Determination of a Question of Law Regarding . . . Scholle’s

Damages Arising from His Criminal Defense.” Cotton argued that

1 We take judicial notice of the contents of court records in this

related criminal proceeding. See People v. Sa’ra, 117 P.3d 51, 56
(Colo. App. 2004).

2 Scholle’s wife intervened and filed a complaint against Cotton, also

asserting claims for trespass and intrusion upon seclusion. Cotton
stipulated to the wife’s dismissal from the case before trial.

3
Scholle wasn’t entitled to recover under the wrong-of-another

doctrine about $1.3 million in attorney fees and related expenses

that Scholle had incurred for his criminal defense because the

prosecutor’s decision to charge him in connection with the incident

wasn’t a natural and “probable consequence of Cotton mistakenly

entering upon Scholle’s property without permission.” Instead,

Cotton argued, Scholle intentionally shooting him was the cause of

the underlying criminal litigation.

¶8 In his response to the motion, Scholle argued that genuine

issues of material fact precluded resolving his wrong-of-another

damages under Rule 56(h). Specifically, noting that the criminal

jury had acquitted him of all charges in the criminal case, Scholle

posited that his “arguably . . . justifiabl[e]” shooting of Cotton and

the resulting criminal prosecution were reasonably foreseeable

consequences of Cotton’s conduct. Scholle argued that, under

these circumstances, the trial court was required to submit the

issue of his entitlement to the claimed damages to the jury rather

than resolving the question as a matter of law. The trial court

granted the motion, concluding that the wrong-of-another doctrine

was inapplicable because Scholle’s shooting, the prosecutor’s

4
decision to bring criminal charges, and the associated litigation

expenses weren’t foreseeable consequences of Cotton’s conduct.

¶9 Cotton’s premises liability claim and Scholle’s counterclaims

proceeded to trial, over which a different judge presided.3 At

Scholle’s request, the trial court directed a verdict in his favor on

his trespass counterclaim, awarding him nominal damages of $1.

Scholle simultaneously withdrew his counterclaim for intrusion

upon seclusion. The jury returned a special verdict for Cotton on

his premises liability claim, awarding him $500,000 in

noneconomic damages and $530,870.97 in economic damages.

II. Analysis

¶ 10 Scholle contends that the trial court erred by determining

that, as a matter of law, he wasn’t entitled to recover the claimed

wrong-of-another damages pertaining to his criminal defense

because (1) the court improperly considered the credibility of

witnesses in granting the Rule 56(h) motion; and (2) genuine issues

3 Before trial, the court dismissed Cotton’s claims for negligence

and battery, reasoning that the Premises Liability Act preempted
those claims by providing an exclusive remedy for his claimed
injuries. Cotton doesn’t challenge this ruling on appeal. See City of
Aurora v. 1405 Hotel, LLC, 2016 COA 52, ¶ 16 n.3 (noting no need
to address an issue not raised on appeal).

5
of material fact existed as to whether Cotton proximately caused the

underlying criminal prosecution, precluding the court from deciding

that issue as a question of law. We discern no reversible error.

A. Standard of Review

¶ 11 Rule 56(h) allows a party to move for a determination of a

question of law at any time after the last pleading is filed. Because

the summary judgment standard applies to such a motion, Coffman

v. Williamson, 2015 CO 35, ¶ 12, a trial court may grant an order

under Rule 56(h) only “[i]f there is no genuine issue of any material

fact necessary for the determination of the question of law.” In

determining whether a genuine issue of material fact exists, the

court looks at the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits,”

C.R.C.P. 56(c), without assessing witness credibility or weighing

evidence, S. Conejos Sch. Dist. RE-10 v. Wold Architects Inc., 2023

COA 85, ¶ 17. “The nonmoving party is entitled to all favorable

inferences from the undisputed facts, and all doubts as to the

existence of a triable issue of fact must be resolved against the

moving party.” Williamson, ¶ 12.

6
¶ 12 We review de novo a trial court’s order deciding a question of

law under Rule 56(h). Great N. Props., LLLP v. Extraction Oil & Gas,

Inc., 2024 CO 28, ¶ 20. In doing so, we apply the same standards

as the trial court. Mitton v. Danimaxx of Colo., Inc., 2023 COA 18,

¶ 9. We will not reverse a trial court’s decision to grant a Rule 56(h)

motion if we conclude that any error was harmless. See C.A.R.

35(c) (“The appellate court may disregard any error or defect not

affecting the substantial rights of the parties.”). An error is

harmless when it doesn’t affect a substantial right of a party, and a

court must set aside such errors at every stage of the proceedings.

C.R.C.P. 61. “An error affects a substantial right only if ‘it can be

said with fair assurance that the error substantially influenced the

outcome of the case or impaired the basic fairness of the trial

itself.’” Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (quoting Banek

v. Thomas, 733 P.2d 1171, 1178 (Colo. 1986)).

B. Basic Principles of the Wrong-of-Another Doctrine

¶ 13 “Colorado — like many states — has long-recognized that

litigation expenses and attorneys’ fees incurred by a party in one

case may, in certain circumstances, be an appropriate measure of

damages against a third party in a subsequent action.” Rocky

7
Mountain Festivals, Inc. v. Parsons Corp., 242 P.3d 1067, 1071

(Colo. 2010) (footnote omitted). This rule, known as the wrong-of-

another doctrine, doesn’t establish a stand-alone cause of action or

constitute “an exception to the so-called American rule that parties

are responsible for their own litigation costs and fees.” Id. Instead,

it is only “an acknowledgement that the litigation costs incurred by

a party in [a] separate litigation may sometimes be an appropriate

measure of compensatory damages against another party.” Id.

¶ 14 Specifically, reasonable litigation costs and attorney fees may

be recovered as damages from a third-party wrongdoer “[w]hen the

natural and probable consequence of a wrongful act has been to

involve [the party seeking the damages] in litigation with others.”

Elijah v. Fender, 674 P.2d 946, 951 (Colo. 1984) (quoting Int’l State

Bank of Trinidad v. Trinidad Bean & Elevator Co., 245 P. 489, 489

(Colo. 1926)); see also Restatement (Second) of Torts: Damages

§ 914(2) (A.L.I. 1979) (featuring a restatement of the wrong-of-

another doctrine in the chapter on damages). In other words, the

doctrine only allows a party to seek reasonable attorney fees and

costs from a third-party wrongdoer if the wrongdoer’s conduct was

a proximate cause of the underlying dispute.

8
¶ 15 Such damages are recoverable even if a party requesting them

brought and ultimately failed to prevail in the underlying action.

See Elijah, 674 P.2d at 951 (noting that the wrong-of-another

doctrine doesn’t require “that a party be a defendant in prior

litigation to recover costs” or “that the party prevail in the earlier

litigation”). Likewise, recovery is allowed even if a third party’s

“wrongful conduct [was only] one of the causes that in natural and

probable consequence produced the claimed expense.” Stevens v.

Moore & Co. Realtor, 874 P.2d 495, 497 (Colo. App. 1994). The

third party’s wrongful conduct need not be the sole cause of the

prior litigation. Id.; Rocky Mountain Festivals, Inc., 242 P.3d at

1071. However, the wrong-of-another doctrine applies “only if the

party seeking such attorney fees was without fault as to the

underlying action.” Brochner v. W. Ins. Co., 724 P.2d 1293, 1300

(Colo. 1986) (emphasis added). So in evaluating fault, we consider

whether the party’s own actions caused the underlying litigation.

See Rocky Mountain Festivals, Inc., 242 P.3d at 1072.

9
C. The Trial Court Erred by Relying on Its Factual Findings
Made in the Criminal Proceeding to Decide the Rule 56(h)
Motion

¶ 16 In addressing whether Scholle had compensable damages

under the wrong-of-another doctrine, the trial court observed that

while the “matter [was] presented in a motion for [a] determination

of [a] question of law, the court [was] in the unique posture of

having previously considered the evidence and made findings or

conclusions that [we]re directly relevant to the questions of

proximate cause, foreseeability, and intervening acts.” The court

noted that, during the “make my day” immunity hearing in the

criminal case, over which the same trial judge presided, “[t]he court

found that certain factual statements made by [Scholle] and his wife

at the hearing were incredible as a matter of law because they

differed from the facts presented by the Scholles to law enforcement

the night of the incident.”

¶ 17 Specifically, Scholle testified at the immunity hearing that

Cotton had lunged at Scholle — and engaged in a physical

altercation with him — before agreeing to get on the ground. The

court noted that Scholle had also testified that Cotton “suddenly

rose from the ground, after [thirty to forty] seconds, got into a

10
crouch position, reached towards his waistband, and moved quickly

and aggressively towards [the Scholles] while reaching for what

[Scholle] thought might have been a weapon.”

¶ 18 The court reiterated that Scholle’s version of the events wasn’t

credible. The court noted that Scholle failed to provide these details

to responding police officers the night of the incident. The court

then found that Scholle “did not have a reasonable belief that

[Cotton] was doing anything at the time [of the shooting] other than

standing up and that [Scholle] could not have a reasonable belief

that [Cotton] was going to use physical force against anyone.”

Consequently, the court concluded that Scholle wasn’t entitled to

recover his criminal defense expenses under the wrong-of-another

doctrine because the prosecutor’s decision to bring criminal charges

against him wasn’t a foreseeable consequence of Cotton’s conduct.

The court reasoned that “the charging decision was not foreseeable

because, based on common sense perceptions of risks created by

various conditions and circumstances, the shooting and [the]

charging decision were not within the scope of danger created by

[Cotton’s] conduct.”

11
¶ 19 Scholle challenges this ruling on the grounds that the trial

court failed to determine whether there was a factual dispute for the

jury to resolve as to whether Cotton’s conduct was a proximate

cause of the underlying criminal prosecution. Instead, Scholle

asserts, the court decided the Rule 56(h) motion by improperly

relying on the credibility determinations and factual findings that it

had previously made at the “make my day” immunity hearing in the

separate criminal case. We agree with Scholle.

¶ 20 As noted, summary judgment principles govern motions for a

determination of a question of law under Rule 56(h). Williamson,

¶ 12; Stapleton v. Pub. Emps. Ret. Ass’n, 2013 COA 116, ¶ 20. This

means that in deciding whether to grant a Rule 56(h) motion, a trial

court’s function is to determine whether any material facts are

disputed, presenting a genuine triable issue for the jury to resolve.

See Andersen v. Lindenbaum, 160 P.3d 237, 239 (Colo. 2007). It’s

not the court’s role to determine the credibility of witnesses, assess

the weight of the evidence, or otherwise resolve factual disputes.

Id.; Capitran Inc. v. Great W. Bank, 872 P.2d 1370, 1376 (Colo. App.

1994); see also Scott Sys., Inc. v. Scott, 996 P.2d 775, 778 (Colo.

App. 2000) (noting that a trial court doesn’t engage in factfinding

12
when ruling on a motion for summary judgment). The court may

enter an order determining the question of law only if there is no

genuine issue as to any material fact necessary to reach that

determination. C.R.C.P. 56(h).

¶ 21 We conclude that the trial court violated those principles here.

The court noted in its Rule 56(h) order that, at the criminal

immunity hearing, the court had made some factual findings about

what had occurred the night of the shooting. Among other things,

the court found that

• Cotton “exited the vehicle and took a few steps towards

the patio” after his car got stuck in the snow in the

Scholles’ backyard;

• Scholle and his wife “gave commands, often conflicting,

to [Cotton]”;

• Cotton “made statements such as ‘I am not here to hurt

anyone’ and ‘I am going to freeze to death’” during the

encounter; and

• Cotton started to comply with Scholle’s order to lie down

on the concrete patio, but then he “almost immediately

began to stand up and [Scholle] shot him.”

13
¶ 22 After summarizing these previous findings, the trial court

noted that, during the criminal immunity hearing, Scholle and his

wife provided additional details regarding the incident but that the

court didn’t find those statements credible. Specifically, the court

reiterated that it didn’t find credible the couple’s testimony that

Cotton had initiated a physical altercation with Scholle before he

agreed to get on the ground and that, after he stood up, Cotton

reached for his waistband as if he was going to pull a weapon. The

court reasoned that “no one would have omitted such ‘facts’ when

speaking for hours with law enforcement on the night of the

incident if those ‘facts’ had been true.” And considering the nature

of Cotton’s conduct in light of these findings, the court concluded

that he couldn’t have reasonably foreseen that Scholle would shoot

him and later be charged with criminal offenses.

¶ 23 This record shows that, based entirely on its factual findings

and credibility determinations from the criminal immunity hearing,

the trial court adopted a version of the incident that excluded

certain alleged acts Scholle said had happened. Because the court

didn’t find believable Scholle’s statements relating to his theory that

he had acted in defense of himself and his family, the court

14
determined that his decision to use deadly force against Cotton was

unreasonable. And based on all of this, the court then concluded

that Cotton didn’t proximately cause the shooting and the resulting

criminal prosecution of Scholle.

¶ 24 Thus, in ruling upon the Rule 56(h) motion for a determination

of a question of law, the trial court

• engaged in detailed factfinding and credibility

determinations;

• resolved the factual dispute concerning Scholle’s

self-defense and defense of others claims against him;

• and concluded that Scholle couldn’t recover wrong-of-

another damages under those circumstances because

Cotton couldn’t have reasonably foreseen the shooting

and the prosecutor’s decision to bring charges in

connection with the incident.

But the applicable summary judgment principles prohibited the

trial court from assessing the credibility of Scholle and his wife and

resolving the factual dispute against Scholle as the nonmoving

party. See Capitran, 872 P.2d at 1376; Williamson, ¶ 12.

“[F]oreseeability is the touchstone of proximate cause,” P.W. v.

15
Child.’s Hosp. Colo., 2016 CO 6, ¶ 24 n.7 (citation omitted), and is

“usually an issue for the jury to decide,” Garcia v. Colo. Cab Co.,

2023 CO 56, ¶ 19. Under these facts, there was a genuine issue of

material fact as to whether the shooting and the prosecutor’s later

decision to bring criminal charges against Scholle were foreseeable

consequences of Cotton’s conduct.

¶ 25 For these reasons, then, we conclude that the court erred by

granting the Rule 56(h) motion and deciding whether Scholle could

recoup the litigation costs and attorney fees related to his criminal

defense under the wrong-of-another doctrine. Instead, the court

should have submitted the underlying factual questions to the jury.

See Colo. Cab Co., ¶ 19 (noting that a trial court may decide

proximate causation as a question of law “[o]nly in the clearest of

cases, where reasonable minds can draw but one inference from the

evidence” (citation omitted)).

D. The Trial Court’s Error in Granting
the Rule 56(h) Motion Isn’t Reversible

¶ 26 Having reached this conclusion, we must next determine

whether this error was harmless. See Bly, 241 P.3d at 535. Scholle

contends that the trial court erred by denying his claim for

16
wrong-of-another damages as a matter of law and that the jury had

to decide whether Cotton’s trespass was a proximate cause of those

damages. Scholle further argues that we should not consider

anything that happened after the trial court ruled on the Rule 56(h)

motion.

¶ 27 In response, Cotton contends that issue preclusion bars

Scholle from challenging the question of causation on appeal

because the jury’s special verdict findings that Cotton “took no

action contributing to the incident and that [Scholle] intentionally

shot [Cotton]” “decisively established” that Scholle, and not Cotton,

was “the proximate cause of the criminal litigation arising from the

shooting.” But while issue preclusion prevents a party from

relitigating an issue that was previously litigated and decided in a

separate proceeding, this doctrine doesn’t apply when the issue was

decided in the same proceeding. Reynolds v. Cotten, 2012 CO 27,

¶ 9; see S.O.V. v. People in Interest of M.C., 914 P.2d 355, 359 (Colo.

1996) (noting that issue preclusion doesn’t apply to prior rulings in

the same pending case); In re Marriage of Mallon, 956 P.2d 642, 645

(Colo. App. 1998) (noting that issue preclusion applies to later

“independent proceedings” but isn’t a bar to a “party’s later

17
assertions in the same litigation”). Thus, because the jury findings

that Cotton points us to in support of his argument originated from

the same action as the ruling that is being appealed, we conclude

that the doctrine of issue preclusion is inapplicable here.

¶ 28 Nonetheless, though he calls it issue preclusion, the gist of

Cotton’s argument is that the jury verdict supports the conclusion

that Scholle’s own actions precipitated the underlying criminal

litigation. In essence, then, Cotton argues that Scholle can’t show

that he suffered harm as a result of the trial court’s decision to

deny his damages claim as a matter of law, rather than sending

that claim to the jury.

¶ 29 We agree with Cotton on this point. We conclude that, even if

we were to assume without deciding that the shooting and the

prosecutor’s decision to bring charges against Scholle were

reasonably foreseeable consequences of Cotton’s trespass, any error

here was harmless because the jury’s verdict established that

Scholle’s conduct was also a cause of the criminal proceeding in

which he had incurred the claimed costs and attorney fees. See

Brochner, 724 P.2d at 1300; Rocky Mountain Festivals, Inc., 242

P.3d at 1072.

18
1. Brochner and Rocky Mountain Festivals, Inc.

¶ 30 Recall that the wrong-of-another doctrine applies “only if the

party seeking . . . attorney fees [incurred in another action] was

without fault as to the underlying action.” Brochner, 724 P.2d at

1300 (emphasis added). In Brochner, a patient sued a hospital and

one of its doctors for injuries that she had suffered during an

unnecessary brain surgery. Id. at 1294. At the time of the injury,

the hospital was aware that the doctor had performed unnecessary

brain surgeries on multiple patients in the past. Id. After the

doctor and the hospital reached a settlement with the injured

patient, the hospital separately sued the doctor to recover the

attorney fees it had incurred in defending against the patient’s

action. Id. at 1295. The trial court granted the hospital’s request,

and a division of this court affirmed that ruling under the wrong-of-

another doctrine. Id. at 1295, 1299. The supreme court reversed,

reasoning that the hospital “was required to expend sums for

attorney fees and costs in defending the [patient’s] lawsuit, in part

because of the hospital’s independently negligent conduct, and not

solely because of [the doctor’s] negligence.” Id. at 1300. Under

these circumstances, the supreme court concluded that the wrong-

19
of-another doctrine didn’t apply to the hospital’s attorney fees

claim. Id.

¶ 31 Roughly twenty-five years later, the supreme court revisited

Brochner’s holding and reasoning in Rocky Mountain Festivals, Inc.,

242 P.3d at 1072. In that case, a town hired an engineering firm to

prepare an audit report concerning a festival’s water and

wastewater usage. Id. at 1069. Based on the report, the town

sought roughly $1.6 million in tap fees from a festival, consisting of

$600,000 for water and $1 million for wastewater usage. Id. at

1069-70. The festival sued the town for an injunction preventing

the town from collecting the fees. Id. at 1070. The court found

“that it was ‘without significant dispute’ that the festival owed at

least some unpaid water tap fees,” awarding $100,000 to the town.

Id. But the court also concluded that the festival prevailed on the

wastewater claim because the engineering firm’s “analysis had been

deficient on numerous points,” and the “festival had, if anything,

overpaid the town for wastewater usage.” Id.

¶ 32 The festival then sued the engineering firm in a separate

action, “arguing that [the engineering firm’s] faulty advice to the

town had caused the festival to incur litigation costs and attorneys’

20
fees in the prior case that [it] should be entitled to recover” as a

measure of damages for its negligence claim. Id. The trial court

and a division of this court concluded that the festival was

precluded from recovering those damages because the festival had

been held partially liable in the underlying litigation, as evidenced

by the order directing it to pay $100,000 in water tap fees to the

town. Id. The supreme court disagreed with this reasoning, noting

that the mere fact that the festival had only prevailed on some

claims in the underlying action wasn’t a per se bar to recovery

under the rule from Brochner. Id. at 1075.

¶ 33 Specifically, the supreme court noted that its reference to the

absence of fault in Brochner must be understood in the context of

the circumstances of that case. Id. at 1072. In Brochner, the Rocky

Mountain Festivals, Inc., court observed, the hospital was a joint

tortfeasor with the doctor because it had breached its own duty of

care to the patient by failing to oversee the doctor after it found out

that he had been performing unnecessary brain surgeries. Id.

Accordingly, the hospital wasn’t entitled to the wrong-of-another

damages arising out of the underlying litigation because it was sued

for the “breach of its own duty of care to the patient, and all the

21
costs the hospital incurred were due to its own wrong, not that of

another.” Id. The supreme court explained that its discussion of

fault in Brochner was therefore not coextensive with the

determination of liability but, rather, was “akin to a proximate

cause determination, focusing on whether the underlying dispute

arose from the actions of the parties then litigating it, or whether

instead the dispute was thrust upon those litigants by some third

party.” Id.

¶ 34 After clarifying that the wrong-of-another damages analysis, in

part, turned on whether a party’s own conduct was a cause of the

underlying action, the supreme court considered whether the

festival was entitled to recover any costs and attorney fees, given

that it had partially caused the earlier action by failing to pay the

water tap fees. Id. at 1075. Because the court concluded that the

festival hadn’t caused the litigation pertaining to the wastewater

claim, the court considered whether that claim was segregable from

the water usage dispute, which the festival had caused. Id. The

court concluded that the claims were based on different facts and,

therefore, segregable because the engineering firm’s analyses of the

festival’s water and wastewater usage were “based on entirely

22
distinct analytical methods and evaluated separately during the

previous litigation.” Id. Accordingly, the court concluded that the

festival could potentially recover the amounts associated with the

wastewater claim that it hadn’t caused but not from the litigation

over water usage, which it had caused, at least in part. Id.

¶ 35 In short, Brochner and Rocky Mountain Festivals, Inc. provide

that a party may pursue damages for litigation expenses arising out

of a separate dispute only if that party didn’t cause that dispute

through its own wrongful actions. Put another way, when a party

had to participate in a separate litigation because of its own

wrongdoing, the sought-after costs and attorney fees are deemed a

product of its own wrong, not that of another. This principle is

consistent with Colorado case law applying the wrong-of-another

doctrine to award costs and attorney fees for the litigation that a

party didn’t cause through its own conduct. See, e.g., Elijah, 674

P.2d at 948-52 (holding that property sellers were allowed to recover

from their real estate broker the attorney fees that they had

expended in a suit against a third party when the broker caused

that suit by breaching his fiduciary duties to the sellers); Stevens,

874 P.2d at 496-97 (holding that a commercial landlord was

23
entitled to recover from his broker the attorney fees that he had

incurred in a suit against a delinquent tenant when the broker

caused that suit “in considerable part” by failing to convey to the

landlord an offer the broker had received from a potential

third-party tenant).

¶ 36 With this rule in mind, we next consider whether Scholle had

a hand in having to defend himself in the underlying criminal

litigation due to his own wrongful conduct.

2. Any Error in Granting the Rule 56(h) Motion Was Harmless
Because the Jury Found that Scholle Was at
Fault for the Underlying Dispute

¶ 37 Scholle’s circumstances are distinguishable from those

present in Rocky Mountain Festivals, Inc., where the festival

prevailed on the wastewater claim but was held liable for its unpaid

water tap fees. 242 P.3d at 1070. Here, in contrast, the criminal

litigation and the wrong-of-another damages that Scholle seeks to

recover in the civil action arise from a single and indivisible set of

facts, those surrounding his shooting of Cotton.

¶ 38 As noted above, Scholle fully prevailed in the criminal case

because the jury acquitted him of all charges arising out of the

shooting. But in the civil trial underlying this appeal, the jury

24
found that Scholle’s actions — the same actions that resulted in the

shooting and his criminal prosecution — were wrongful.

Specifically, in its special verdict, the jury found the following:

• Scholle willfully or deliberately shot Cotton, and Scholle’s

conduct was “a cause of [Cotton’s] injuries, damages or

losses.”

• Scholle didn’t reasonably believe that he had to use deadly

force to protect himself, his wife, or his property from

Cotton or to prevent Cotton from committing a felony on his

property.

• Scholle didn’t tell Cotton to leave the property and “give him

a reasonable opportunity to leave” before shooting him in

the abdomen.

• Scholle used an unreasonable degree of force under the

circumstances that he faced during the incident.

¶ 39 Accordingly, even though the criminal jury acquitted Scholle

under the beyond a reasonable doubt standard of proof, the civil

jury in this case found by a preponderance of the evidence that his

shooting of Cotton was wrongful. That same wrongful conduct

underlies Scholle’s criminal prosecution and the attorney fees and

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costs that he seeks to recover as a measure of damages. In other

words, Scholle’s own actions in the shooting incident led to his

criminal prosecution, at least in part; it was not merely thrust upon

him by Cotton’s conduct. See Elijah, 674 P.2d at 948-49; Stevens,

874 P.2d at 496. And considering the civil jury’s findings, Scholle

doesn’t explain — and we don’t see — how he could have recovered

wrong-of-another damages in any case. See Rocky Mountain

Festivals, Inc., 242 P.3d at 1072; Brochner, 724 P.2d at 1300.

¶ 40 Given these circumstances, we conclude that any error in the

trial court’s decision to not submit Scholle’s wrong-of-another

damages “claim” to the jury was harmless and, therefore, doesn’t

warrant reversal. See C.R.C.P. 61; C.A.R. 35(c); see also Terra

Mgmt. Grp., LLC v. Keaten, 2025 CO 40, ¶¶ 41-43 (concluding that

any error in the trial court’s order imposing an adverse inference

sanction against a party for the destruction of evidence didn’t

mandate reversal because the error was harmless).

III. Disposition

¶ 41 The judgment is affirmed.

JUDGE DUNN and JUSTICE MARTINEZ concur.

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