Davis v. Wolf

24CA1749 Davis v Wolf 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1749
Larimer County District Court No. 23CV212
Honorable Laurie K. Dean, Judge

Dana R. Davis,

Plaintiff-Appellant,

v.

Jeffrey E. Wolf,

Defendant-Appellee.

ORDER AFFIRMED

Division V
Opinion by JUDGE JOHNSON
Welling and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Dana R. Davis, Pro Se

SGR, LLC, Heather A. Salg, Jean M. Peterson, Denver, Colorado, for Defendant-
Appellee
¶1 Plaintiff, Dana R. Davis (Davis), appeals the district court’s

order dismissing her claims against defendant, Jeffrey E. Wolf (Wolf)

for failure to prosecute. On appeal, Davis contends that the district

court (1) lacked subject matter jurisdiction; (2) violated her due

process rights; and (3) violated her equal protection rights. We

disagree with Davis’ contentions and, therefore, affirm.

I. Background

¶2 In October 2021, Davis was involved in a motor vehicle

collision with Wolf. The police originally cited Davis for careless

driving, but that case was dismissed. She filed this lawsuit alleging

that Wolf caused the accident and damage to her car. She asserted

one negligence claim, eight claims of negligence per se, and one

claim of intentional infliction of emotional distress.

¶3 Davis filed a motion for summary judgment, arguing that the

court should give preclusive effect to the fact that her careless

driving case had been dismissed, thus entitling her to judgment as

a matter of law. The district court disagreed, concluding that there

were material facts in dispute as to the events surrounding the

collision, including whether Wolf had acted negligently and whether

Davis had suffered damage, and if so, as to the amount of damages.

1
Davis then sought the judge’s recusal, claiming that the judge was

biased against her. The court denied the request, and Davis

appealed that order (the recusal order) to this court.

¶4 Meanwhile, Davis and Wolf were unable to select a mediator.

Wolf filed a motion to compel mediation, and the court gave Davis

time to respond, but she did not. The court then set a hearing date,

but Davis did not appear, so the court ordered mediation. Davis

then filed her third motion objecting to the court’s authority.

¶5 This court dismissed Davis’ appeal on grounds the recusal

order was not a final appealable order. Davis then filed her fourth

through sixth objections to the district court’s authority to act in

the case. The district court ordered Davis to show cause why the

case should not be dismissed for failure to prosecute. In response,

Davis filed her seventh objection. The district court dismissed the

case, and Davis appeals.

II. Standard of Review

¶6 We review for an abuse of discretion whether the district court

properly dismissed a plaintiff’s case for failure to prosecute. See

Streu v. City of Colorado Springs ex rel. Colo. Springs Utils., 239 P.3d

1264, 1268 (Colo. 2010). A court abuses its discretion when its

2
ruling is “manifestly arbitrary, unreasonable, or unfair” or when it

misapplies the law. Freedom Colo. Info., Inc. v. El Paso Cnty.

Sheriff’s Dep’t, 196 P.3d 892, 899 (Colo. 2008).

¶7 We review de novo a challenge to a court’s subject matter

jurisdiction as well as assertions that a party’s due process and

equal protection rights were violated. Jim Hutton Educ. Found. v.

Rein, 2018 CO 38M, ¶ 17 (subject matter jurisdiction); People v.

Burlingame, 2019 COA 17, ¶ 11 (due process); Howard v. People,

2020 CO 15, ¶ 11 (equal protection).

III. Pro Se Pleadings

¶8 We acknowledge that Davis filed the underlying lawsuit and

this appeal pro se. Although we broadly construe pro se pleadings,

unrepresented parties must nevertheless comply with the same

procedural rules required of attorneys. Adams v. Sagee, 2017 COA

133, ¶ 10. We address Davis’ arguments to the extent we have been

able to understand them.

IV. Subject Matter Jurisdiction

¶9 Davis contends that the court lacked subject matter

jurisdiction to continue presiding over her case because (1) she filed

a motion to quash Wolf’s answer and jury demand as well as his

3
motion to dismiss one of her claims; (2) she filed seven objections to

the court’s denial of her motion to recuse; and (3) Wolf could not

assert the affirmative defense of comparative negligence. We

disagree.

¶ 10 A court’s subject matter jurisdiction concerns its authority to

deal with the class of cases in which it renders judgment, not its

authority to enter a particular judgment within that class. Meggitt

v. Stross, 2021 COA 50, ¶ 39. The Colorado Constitution vests

district courts with general subject matter jurisdiction in civil cases.

Colo. Const., art. VI, § 9(1); Levine v. Katz, 167 P.3d 141, 144 (Colo.

App. 2006).

A. Motion To Quash

¶ 11 Davis filed her motion to quash pursuant to C.R.C.P. 12(b)(1)

and (2), alleging that the court lacked subject matter jurisdiction

over Wolf’s answer, request for a jury trial, and his motion to

dismiss her intentional infliction of emotional distress claim. The

court denied Wolf’s motion to dismiss, reasoning that, although

Davis’ allegations were thin, she had “alleged sufficient facts

regarding [Wolf’s] conduct, including false statements, acts, and

omissions in the course of the car crash and subsequent

4
investigation, that [we]re sufficient to establish a cause of action for

extreme and outrageous conduct.”

¶ 12 But in that same order, the court construed Davis’

jurisdictional arguments as Davis actually objecting to Wolf’s

counsel because Davis alleged that Wolf had “not been honest with

his insurance carrier about the nature of the accident”;

consequently, Davis was “seeking to have counsel disqualified

based on th[ose] allegations.”

¶ 13 Our supreme court has determined that because

disqualification of a party’s chosen attorney is an “extreme remedy,”

it would be “appropriate only where required to preserve the

integrity and fairness of judicial proceedings,” and “it must be

supported by a showing not only that the proceedings appear to be

seriously threatened, but also by a showing that any remedy short

of disqualification would be ineffective.” In re Estate of Myers, 130

P.3d 1023, 1027 (Colo. 2006). Based on this standard, the district

court concluded that Davis had failed to make the requisite showing

to disqualify Wolf’s counsel.

¶ 14 We discern no error. Although Davis alleged that Wolf had

committed insurance fraud, she did so based on her view of the

5
events surrounding the collision. She provided nothing but the

dismissal of her careless driving citation as evidence that Wolf was

lying to his insurance company about the accident, and it is not at

all clear why, even if her allegations were accurate, Wolf’s counsel

would be unable to continue the representation. And given how

extreme the remedy is to disqualify another party’s chosen attorney,

we conclude that the district court did not err when it denied Davis’

motion to quash.

B. Motion to Recuse

¶ 15 Davis filed a motion under C.R.C.P. 97 with an affidavit,

alleging that the judge was biased against her. In the recusal order,

the court noted that Davis’ motion did not allege that the judge

assigned to the case is or “has been counsel for any party, is a

material witness, or is related to, or connected with, any party or

his attorney.” The court further noted it “does not know either

party, attorney, or anything of the facts of this case. Nor does the

Court have any interest in the outcome of this case.” Instead, the

district court reasoned that the sole basis for the motion was Davis’

disagreement with the court’s denial of her motion for summary

judgment. But the district court found that disagreement with

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adverse court rulings did not establish bias and, therefore, denied

the motion.

¶ 16 A judge’s denial to recuse herself from a matter will not be

overturned on appeal unless the court abused its discretion. Zoline

v. Telluride Lodge Ass’n, 732 P.2d 635, 639 (Colo. 1987). But a

judge has a duty to preside over a case unless the motion and

affidavit “‘state facts from which it may reasonably be inferred that

the judge has bias or prejudice that will prevent him from dealing

fairly’ with the party seeking recusal.” Moody v. Corsentino, 843

P.2d 1355, 1374 (Colo. 1993) (quoting Wright v. Dist. Ct., 731 P.2d

661, 665 (Colo. 1987)); see also People in Interest of C.Y., 2018 COA

50, ¶ 15; C.R.C.P. 97.

¶ 17 The judge must accept the factual statements in the motion

and the affidavits as true, even if he or she believes them to be false

or erroneous. Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 15. A

recusal motion must assert more than a subjective belief that a

judge is not impartial. Edmond v. City of Colorado Springs, 226

P.3d 1248, 1252 (Colo. App. 2010). If the movant merely alleges

opinions, conclusory statements, conjecture, or innuendo, recusal

is unnecessary. Comiskey v. Dist. Ct., 926 P.2d 539, 544 (Colo.

7
1996); see also Holland v. Bd. of Cnty. Comm’rs, 883 P.2d 500, 510

(Colo. App. 1994).

¶ 18 We discern no abuse of discretion with the district court

denying the motion. Davis was unhappy with the district court’s

adverse rulings, which, without more, does not support a finding

that the court was biased against her. See Bocian, ¶ 57 (“Unless

accompanied by an attitude of hostility or ill will toward a party, a

ruling by a judge on a legal issue is insufficient to show bias that

requires disqualification.”); see also Saucerman v. Saucerman, 461

P.2d 18, 22 (Colo. 1969) (holding that the “rulings of a judge,” even

if “erroneous, numerous and continuous, are not sufficient in

themselves to show bias or prejudice”). Indeed, the court’s orders

reveal no hostility toward Davis; the court went out of its way to

fully explain its rulings and provided Davis with numerous

opportunities to be heard.

C. Affirmative Defense

¶ 19 Within Davis’ affidavit alleging the judge was biased against

her, she claimed Wolf could not assert contributory negligence as

an affirmative defense. In the recusal order, the court stated that it

took no position on the merits of Davis’ claims or Wolf’s defenses,

8
noting the general principle that negligence is ordinarily a question

of fact for the jury.

¶ 20 An affirmative defense is “[a] defendant’s assertion of facts and

arguments that, if true, will defeat the plaintiff’s . . . claim, even if

all the allegations in the [plaintiff’s] complaint are true.” Soicher v.

State Farm Mut. Auto. Ins. Co., 2015 COA 46, ¶ 18 (quoting Black’s

Law Dictionary 509 (10th ed. 2014)). C.R.C.P. 8(c) permits

defendants to assert affirmative defenses and requires contributory

negligence to be pleaded as such. Bailey v. State Farm Mut. Auto.

Ins. Co., 2018 COA 133, ¶ 25 (noting that C.R.C.P. 8(c) lists a

nonexclusive list of affirmative defenses of which contributory

negligence is one). An affirmative defense must be specifically

asserted in the party’s responsive pleading, otherwise it is waived.

Soicher, ¶ 21.

¶ 21 The district court had subject matter jurisdiction to determine

whether Wolf had properly asserted the affirmative defense and

whether sufficient evidence was presented at trial to submit an

instruction for the jury’s consideration. See Gordon v. Benson, 925

P.2d 775, 777-78 (Colo. 1996) (noting that a court must properly

instruct the jury on the governing law and that a jury instruction

9
on comparative negligence must be based on “competent evidence

appearing in the record”).1 Because Davis’ case never went to trial,

though, and because Wolf had the right to plead the affirmative

defense in his answer, there is no contention of error committed by

the court for us to review.

V. Due Process and Equal Protection

¶ 22 Davis contends that the district court violated her due process

and equal protection rights by dismissing her case. We disagree.

A. Due Process

¶ 23 Davis contends that the district court violated her right to due

process because (1) Wolf’s affirmative defense of contributory

negligence was precluded; (2) she was deprived of an evidentiary

hearing regarding her motion to quash; and (3) the district court

was biased against her, as evidenced by the judge’s recusal order

and the court’s order compelling mediation.

1 To the extent that Davis argues Wolf failed to sufficiently plead

contributory negligence in his answer, she raised this issue for the
first time in her reply brief; thus, we decline to address it. See Colo.
Korean Ass’n v. Korean Senior Ass’n of Colo., 151 P.3d 626, 629
(Colo. App. 2006) (appellate courts do not address arguments first
raised in a reply brief).

10
¶ 24 “The fundamental requisites of due process are notice and the

opportunity to be heard.” Franz v. Indus. Claim Appeals Off., 250

P.3d 755, 758 (Colo. App. 2010) (quoting Hendricks v. Indus. Claim

Appeals Off., 809 P.2d 1076, 1077 (Colo. App. 1990)). “Due process

requires ‘that the parties be apprised of all the evidence to be

submitted and considered, and that they be afforded a reasonable

opportunity in which to confront adverse witnesses and to present

evidence and argument in support of their position.’” Delta Cnty.

Mem’l Hosp. v. Indus. Claim Appeals Off., 2021 COA 84, ¶ 28

(quoting Hendricks, 809 P.2d at 1077). What constitutes sufficient

due process is flexible; no specific procedure is mandated “as long

as the basic opportunity for a hearing and judicial review is

present.” Id. (quoting Ortega v. Indus. Claim Appeals Off., 207 P.3d

895, 899 (Colo. App. 2009)). A party must be given the opportunity

to be heard at a meaningful time and in a meaningful manner.

Whiteside v. Smith, 67 P.3d 1240, 1248 (Colo. 2003).

1. Preclusion

¶ 25 Davis argues that Wolf’s affirmative defense of comparative

negligence was precluded based on the doctrines of issue and claim

preclusion as a result of the dismissal of her careless driving

11
citation. The district court did not address Davis’ preclusion

arguments directly, but, in denying summary judgment, it reasoned

that genuine issues of material fact surrounding the collision

existed.

¶ 26 We conclude that the court provided Davis an opportunity to

be heard through the summary judgment briefing and that it did

not violate her due process rights by not granting that motion. And

“the denial of a motion for summary judgment is not appealable.”

Bengtson v. USAA Prop. & Cas. Ins., 3 P.3d 1233, 1238 (Colo. App.

2000) (citing Feiger, Collison & Killmer v. Jones, 926 P.2d 1244,

1247 (Colo. 1996)).

¶ 27 Assuming Davis contends that the court violated her due

process rights by not addressing her issue and claim preclusion

arguments, any such error is harmless because Davis’ claims would

not have prevailed.

¶ 28 Whether issue preclusion bars subsequent review of a claim or

issue in a different proceeding is a question of law that we review de

novo. Vanderpool v. Loftness, 2012 COA 115, ¶ 17.

¶ 29 “In the broadest sense, [issue and] claim preclusion prevent[]

the perpetual re-litigation of the same [issue,] claim[,] or cause of

12
action.” Foster v. Plock, 2017 CO 39, ¶ 12; see also Brown v.

Felsen, 442 U.S. 127, 131 (1979) (Claim preclusion “prevents

litigation of all grounds for, or defenses to, recovery that were

previously available to the parties, regardless of whether they were

asserted or determined in the prior proceeding.”); Vanderpool, ¶ 11

(Issue preclusion “is designed to ‘relieve parties of multiple lawsuits,

conserve judicial resources, and promote reliance on the judicial

system by preventing inconsistent decisions.’” (quoting Reynolds v.

Cotten, 2012 CO 27, ¶ 9))). “The goal of the doctrine is to promote

judicial economy by barring a claim litigated in a prior proceeding

from being litigated again in a second proceeding.” Foster, ¶ 12.

¶ 30 Both issue and claim preclusion require the parties to be

identical or in privity with one another. Sunny Acres Villa, Inc. v.

Cooper, 25 P.3d 44, 47 (Colo. 2001) (issue preclusion); Meridian

Serv. Metro. Dist. v. Ground Water Comm’n, 2015 CO 64, ¶36 (claim

preclusion). It is undisputed that Wolf was not a party to Davis’

careless driving citation case. Instead, Davis contends that she and

Wolf were in privity.

¶ 31 Privity exists when “there is a substantial identity of interests”

between the party and the non-party “such that the non-party is

13
virtually represented” by the party. Goldsworthy v. Am. Fam. Mut.

Ins. Co., 209 P.3d 1108, 1115 (Colo. App. 2008) (quoting Nat.

Energy Res. Co. v. Upper Gunnison River Water Conservancy Dist.,

142 P.3d 1265, 1281 (Colo. 2006)). Privity “requires both a

substantial identity of interests and a working or functional

relationship in which the interests of the non-party are presented

and protected by the party in the litigation.” Id.

¶ 32 Davis argues that she and Wolf had a substantive legal

relationship because they were both involved in the collision. She

contends that, without the collision, she would not have been cited

for careless driving, and this event thus established a substantive

legal relationship between the two. Davis, however,

misunderstands the concept of privity. Privity means that the

parties’ interests are aligned so that Wolf’s interests as “the non-

party [are] virtually represented” by Davis. In this case, Wolf and

Davis do not share the same interests because Davis alleges Wolf is

at fault in the collision and caused her damage. Therefore, to the

extent Davis could properly assert the doctrine of issue or claim

preclusion, it would have failed and could not have been the basis

14
for the grant of summary judgment in her favor. Thus, we discern

no due process violation.

2. Evidentiary Hearing

¶ 33 Davis contends that she was deprived of an evidentiary

hearing on her motion to quash. Specifically, she relies on

Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1191 (Colo.

2005), for the legal proposition that a court must hold an

evidentiary hearing before resolving disputed facts to determine

subject matter jurisdiction. As we have discussed above, Davis’

motion alleging a lack of subject matter jurisdiction was in

substance a request to disqualify Wolf’s counsel. Thus, because the

court was not required to hold an evidentiary hearing about its

jurisdiction, there can be no due process violation on this basis.

3. Recusal and Mediation

¶ 34 Davis argues she was deprived of the right to an impartial

judge because the judge refused to recuse despite her many

objections. As we noted above, Davis’ objections to the judge were

based on adverse rulings, and nothing in the record even suggests

the judge was biased against her. Therefore, we discern no due

process violation.

15
¶ 35 As to Davis’ complaint that the district court ordered her and

Wolf to participate in mediation, we perceive no error. The court

has the authority to order parties to participate in mediation. § 13-

22-311, C.R.S. 2024. But Davis contends she did not file a

response to Wolf’s motion to compel because her motion for recusal

had not yet been ruled on by the court. This argument, however, is

inaccurate. The district court issued the recusal order on April 22,

and the hearing on the motion to compel mediation was scheduled

for May 3.

¶ 36 To the extent Davis means that this court had not resolved her

appeal on the recusal order when the district court ordered

mediation, this is true as this court did not dismiss her appeal until

May 31. Even so, Davis did not seek a stay of the district court

proceedings in this court. And when Davis filed her second

objection to the district court’s jurisdiction, it stated she objected to

all orders throughout the case “and beyond until the question of

Judges’ authority to act in this case is resolved by the Colorado

Court of Appeals.” The district court construed Davis’ filing as a

request to stay the proceedings until resolution of her appeal. But

in Davis’ third objection, she specifically stated that she “did not

16
ask for a stay of proceedings in this case.” Based on this record,

the court did not err by proceeding with the case and ordering

mediation when the court would have stayed the proceedings, Davis

rejected the request and Davis was given an opportunity to respond

and attend a hearing on the matter of mediation and failed to do

both.

¶ 37 Finally, even assuming the district court was incorrect in its

orders, Davis was still required to comply. See Maness v. Meyers,

419 U.S. 449, 458-59 (1975) (“[O]nce the court has ruled, counsel

and others involved in the action must abide by the ruling and

comply with the court’s orders.”). “Persons who make private

determinations of the law and refuse to obey an order generally risk

criminal contempt even if the order is ultimately ruled incorrect.”

Id. at 458. Even though Davis disagreed with the court’s decision to

not recuse from the case, she was required to continue to prosecute

her case to finality and then bring any contentions of error to this

court for review. Her failure to follow the proper procedure by

simply refusing to participate in the case does not give rise to a due

process violation under these circumstances.

17
B. Equal Protection

¶ 38 Davis contends that her equal protection rights were violated

because the court treated her unequally in relation to Wolf. We

disagree.

¶ 39 Equal protection of the laws guarantees that people who are

similarly situated will receive like treatment in the law. Salazar v.

Indus. Claim Appeals Off., 2022 COA 13, ¶ 34; see also Harris v.

Ark, 810 P.2d 226, 229 (Colo. 1991). When a challenged state

action does not involve a person’s fundamental rights or a

traditionally suspect class, we apply rational basis review. People v.

Reyes, 2016 COA 98, ¶ 32. Under this standard, “the challenging

party bears the burden of proving that the action ‘bears no rational

relationship to a legitimate legislative purpose or government

objective, or that the classification was otherwise unreasonable,

arbitrary, or capricious.’” Id. (quoting Dean v. People, 2016 CO 14,

¶ 12).

¶ 40 In Davis’ seven challenges she filed objecting to the district

court’s authority, we see nothing in the record in which she alleged

that the court was treating her unequally because she belonged to a

suspect class. And, to the extent her equal protection claim is

18
based on the court’s dismissal of her case, we perceive no

cognizable equal protection claim, as a court has discretion to enter

such ruling if, as we discuss below, the record supports it.

VI. Failure to Diligently Prosecute

¶ 41 In its order to show cause, the court noted that Davis had filed

a motion to recuse and six objections to the court’s authority and

that Davis had failed to attend the pretrial conference or the jury

trial. Because of this background, the court said, “It appears that

this case is at an impasse,” and concluded it was for the jury to

decide whether Davis “[wa]s entitled to recover on her claims.” The

court ordered Davis to show cause within thirty-five days as to why

the case should not be dismissed for failure to prosecute.

¶ 42 On that same day, Davis filed a response to the show cause

order indicating that she “continue[d] to question and object to

what appears to be the Judges’ [sic] presumption of having

authority to act in this case.” Davis indicated she did not “consent”

to the judge presiding over the case. Based on C.R.C.P. 41(b)(2) and

C.R.C.P. 121, section 1-10, the court found that Davis had “failed to

diligently prosecute or bring th[e] case to trial with diligence.” It

reasoned that Davis had not participated in mediation or attended

19
hearings and that objecting to the court’s authority did not

“constitute[] ‘diligent prosecution.’”

¶ 43 We perceive no abuse of discretion, as the record supports the

district court’s dismissal for four reasons. First, Davis failed to

participate in the case following the court’s denial of her summary

judgment motion. She failed to appear at court hearings on May 3,

June 14, and July 12 and for trial on August 3, 2024. Davis claims

that she did not attend these proceedings because of the unresolved

question of the judge’s authority to act in the case. But this court

dismissed Davis’ appeal of the recusal order on May 31, 2024, so

even if Davis did not agree with the recusal order, the court had the

authority to preside over the case.

¶ 44 Second, Davis did not participate in mediation as ordered by

the court. Again, she claims she did not attend mediation because

the judge had no authority to order it and that its ruling “limited”

her to Wolf’s choice of a mediator. But the court gave Davis two

opportunities — one to file a response to the motion to compel

mediation and another to attend the hearing — to raise any

objections and, ostensibly, to present her choice of mediator. Davis

20
cannot now complain that Wolf’s choice of mediator was forced on

her.

¶ 45 Third, the court reasoned, and we agree, that continued

objections to the court’s authority and its ruling in this case

supports a finding that a plaintiff has failed to prosecute her case.

¶ 46 And finally, the court specifically told Davis in its show cause

order that objecting to the court’s authority would likely result in

her case being dismissed, yet Davis responded with the same

objection.

¶ 47 In such cases where the court is presented with the real

likelihood the case will not move forward — which we have here —

we will affirm the court’s dismissal for failure to prosecute. See,

e.g., Kallas v. Spinozzi, 2014 COA 164, ¶¶ 6, 13-14, 53 (affirming

dismissal when counsel, who suffered from medical conditions and

refused to bring in co-counsel to assist, failed to schedule a

deposition, failed to appear at a hearing for continuance of trial,

and failed to appear at trial); Rossi v. Mathers, 749 P.2d 964, 965

(Colo. App. 1987) (affirming dismissal when plaintiff failed to secure

a medical witness after three years and failed to fully respond to

defendant’s discovery preventing the case being set for trial).

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VII. Conclusion

¶ 48 The district court’s order is affirmed.

JUDGE WELLING and JUDGE GROVE concur.

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