Adams County Housing Authority v. Rebekah Panzlau

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 29, 2022

2022COA148

No. 21CA1972, Adams Cnty. Housing v. Panzlau — Judges —
Code of Judicial Conduct — Disqualification — Judge’s Former
Law Firm; Civil Procedure — Change of Judge — Stay of
Proceedings — Successive Motions

A division of the court of appeals decides three issues of first

impression: (a) a judge is not required to recuse from a case

involving a previous client of the judge’s former law firm, where the

judge was not involved with the client’s matters while at the firm

and the case pending before the judge is unrelated to the matters in

which the law firm represented the client; (b) a judge is not required

to stay the proceedings under C.R.C.P. 97 when a party files a

successive recusal motion that rests on the same factual allegations

as the party’s prior unsuccessful motion to recuse; and (c) under

Warne v. Hall, 2016 CO 50, 373 P.3d 588, a proponent of a claim
must plead facts that, if true, would satisfy each element of the

claim.

Accordingly, the division affirms the district court’s denial of

the appellant’s recusal motions, its decision not to stay the

proceedings during the pendency of the third recusal motion, and

its dismissal of the appellant’s counterclaims.
COLORADO COURT OF APPEALS 2022COA148

Court of Appeals No. 21CA1972
Adams County District Court No. 21CV30317
Honorable Kyle Seedorf, Judge

Adams County Housing Authority, d/b/a Maiker Housing Partners,

Plaintiff-Appellee,

v.

Rebekah Panzlau,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE LIPINSKY
Fox and Freyre, JJ., concur

Announced December 29, 2022

Fairfield and Woods, P.C., Colin A. Walker, Lee Katherine Goldstein, Denver,
Colorado, for Plaintiff-Appellee

Rebekah Panzlau, Pro Se
¶1 Defendant, Rebekah Panzlau, appeals the district court’s

judgment dismissing the negligence, breach of contract, and

constructive eviction counterclaims she asserted against plaintiff,

Adams County Housing Authority, d/b/a Maiker Housing Partners.

We affirm.

I. Background

¶2 Maiker is a public body created pursuant to the Colorado

statutes governing county housing authorities, sections 29-4-501 to

-509, C.R.S. 2022. It is charged with providing affordable housing

and services to low-income residents of Adams County.

¶3 Panzlau rented an apartment from Maiker. After Panzlau

notified Maiker of a water leak in her apartment, Maiker paid for

Panzlau to stay at a hotel while it repaired the leak. A few days

later, Panzlau also complained to Maiker about water damage and

mold in the apartment. Maiker engaged a contractor that

submitted a report detailing an elevated level of mold spores in

Panzlau’s apartment.

¶4 Pursuant to the terms of Panzlau’s lease, Maiker asked

Panzlau to vacate the apartment so that it could perform repairs

1
and remediate the mold. Although Panzlau continued to stay in the

hotel, she refused to remove her belongings from the apartment.

¶5 Maiker filed a forcible entry and detainer (FED) action against

Panzlau to obtain legal authorization to remove her belongings from

her apartment so it could make repairs and perform the necessary

remediation there. Acting pro se, Panzlau filed what we construe as

an answer and counterclaims (first counterclaims). In the first

counterclaims, Panzlau alleged, among other facts, that the mold

contamination in her apartment had injured and sickened her. In

addition, over the course of the litigation, Panzlau filed three

motions, premised on the same factual allegations, for recusal of

the trial judge. After the court entered an order for possession in

favor of Maiker, Panzlau amended her counterclaims. We describe

the case’s procedural history in further detail below.

¶6 Panzlau appeals the court’s final judgment dated October 22,

2021, dismissing all of her counterclaims that remained pending at

the time.

II. Analysis

¶7 Panzlau raises ten issues on appeal. We consolidate them as

follows: (1) issues pertaining to the district judge’s denial of

2
Panzlau’s recusal motions; (2) issues pertaining to the dismissal of

Panzlau’s counterclaims; and (3) miscellaneous issues.

A. Self-Represented Litigants

¶8 Because Panzlau has represented herself throughout these

proceedings, we must interpret her pleadings and motions liberally.

See Minshall v. Johnston, 2018 COA 44, ¶ 21, 417 P.3d 957, 961.

However, self-represented parties such as Panzlau must follow the

same procedural rules as parties represented by counsel, and their

lack of an attorney does not excuse their noncompliance with the

procedural rules and other applicable law. See In re Marriage of

Wright, 2020 COA 11, ¶ 33, 459 P.3d 757, 764.

B. The Court’s Denial of Panzlau’s Recusal Motions

1. Additional Facts Pertaining to the Recusal Motions

¶9 At the hearing on Maiker’s request for an order of possession,

Panzlau orally moved for recusal of the district judge (first recusal

motion) on the grounds that the judge’s former law firm (the firm)

had represented Adams County Housing Authority in a prior,

unrelated case. The judge orally denied the motion, explaining that,

while at the firm, he had not been involved with any case in which

the Authority was a party.

3
¶ 10 Two days later, Panzlau filed a written motion to recuse the

judge (second recusal motion), again based on the judge’s prior

relationship with the firm. Specifically, Panzlau asserted that the

judge was required to recuse “due to [an] actual or perceived

conflict of interest according to Colo. R. Civ. P. 97.”

¶ 11 The judge denied the second recusal motion in a written order

on April 5, 2021. In that order, the judge noted that he had

addressed the merits of the second recusal motion when he denied

Panzlau’s first recusal motion. He explained that he

was unaware of [the firm’s] representation, had
not served as [the Authority’s] counsel himself,
and determined that, even if a prior employer
had represented [the Authority], [the judge]
has no interest or prejudice or any relationship
or connection with [the Authority] such as to
render it improper for him to sit on the matter.

¶ 12 The judge further noted that the second recusal motion failed

even if he viewed it as a motion for reconsideration of his ruling on

the first recusal motion. The court explained that Panzlau had not

set forth any “legal authority supporting a request for

reconsideration or other relief” and, moreover, had not “include[d] a

certificate of conferral with opposing counsel, as required under

C.R.C.P. 121, section 1-15(8).”

4
¶ 13 Panzlau filed another motion to recuse the judge (third recusal

motion) on April 15, 2021. Although Panzlau did not present new

factual grounds for disqualification in the third recusal motion, she

cited new legal authorities, including Rule 2.11 of the Colorado

Code of Judicial Conduct and Rule 1.2 of the American Bar

Association’s Model Code of Judicial Conduct.

¶ 14 The district court did not stay the proceedings upon the filing

of the third recusal motion and, during the pendency of the motion,

the parties continued to submit filings to the court. For example,

on April 16, 2021, Panzlau filed an amended answer and

counterclaims (second counterclaims) and a response to Maiker’s

pending request for an award of its attorney fees. (Maiker asserted

that it was entitled to an attorney fee award under the FED statute,

section 13-40-123, C.R.S. 2022, and under the lease, which

provides that “[u]nless a party is seeking exemplary, punitive,

sentimental, or personal-injury damages, the court shall award the

prevailing party from the non-prevailing party attorney’s fees and

other litigation costs.” Maiker also argued that it was entitled to

recover attorney fees under section 13-17-102, C.R.S. 2022,

because Panzlau’s defense against the FED proceeding lacked

5
substantial justification.) In addition, Maiker filed a reply in

support of its attorney fee motion on April 20, 2021; a motion for

dismissal of certain of the second counterclaims on April 30, 2021,

(discussed in further detail below); and a response to the third

recusal motion on May 6, 2021. On May 12, 2021, the court

entered an order granting Maiker’s motion for attorney fees, in part.

(Although Panzlau appears to present arguments regarding the

attorney fee award in this appeal, she did not timely appeal this

order. For this reason, we do not address the merits of her

argument regarding the award of attorney fees.)

¶ 15 The district court did not rule on Panzlau’s third recusal

motion until May 14, 2021. Although the court denied it, the court

did not award Maiker attorney fees for Panzlau’s filing of the

motion, as Maiker requested, because the court found that the third

recusal motion was not substantially frivolous, groundless, or

vexatious.

¶ 16 On appeal, Panzlau raises two issues concerning her recusal

motions. She asserts that the district judge erred by (1) failing to

recuse himself and (2) failing to stay the proceedings while the third

motion to recuse was pending. (All of Panzlau’s arguments on

6
appeal rest to some extent on her contention that the district judge

was biased against her. Thus, our analysis of Panzlau’s recusal

motions also applies to the allegations of judicial bias underlying

her other arguments.)

2. Standard of Review

¶ 17 We will not reverse a judge’s decision on whether to disqualify

himself or herself in a civil case unless the judge abused his or her

discretion. Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 12, 482 P.3d

502, 508. “A trial court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, unfair, or based on a

misapplication of the law.” Black v. Black, 2020 COA 64M, ¶ 118,

482 P.3d 460, 485. Additionally, we review the sufficiency of a

motion to disqualify de novo. Bocian, ¶ 12, 482 P.3d at 509.

3. Legal Principles

¶ 18 If the judge is “interested or prejudiced, or has been of counsel

for any party, . . . or is so related or connected with any party . . .

as to render it improper for him to sit on the . . . proceeding,” the

judge shall be disqualified. C.R.C.P. 97. “[D]isqualification is

appropriate when the motion and supporting affidavits allege

sufficient facts from which it may reasonably be inferred that the

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judge is prejudiced or biased, or appears to be prejudiced or biased,

against a party . . . .” Bocian, ¶ 13, 482 P.3d at 509. The purpose

behind disqualifying a judge who has the appearance of partiality is

“to protect public confidence in the judiciary.” People in Interest of

A.G., 262 P.3d 646, 650 (Colo. 2011). Upon the filing of a motion

for disqualification, “all other proceedings in the case shall be

suspended until a ruling is made thereon.” C.R.C.P. 97.

4. The Judge Was Not Required to Recuse

¶ 19 Panzlau’s three recusal motions rested on the same factual

allegations — that the judge “had previously been a lawyer at a law

firm” that “had previously represented [the Authority]” in a different

matter, and that the judge was an “employee at this firm at the time

[that matter] was represented.” On appeal, Panzlau additionally

alleges that the judge “concealed his prior relationship with

[opposing counsel] via his charity ‘Bright by Three’ and failed to

truthfully elucidate that previous relationship for the record” when

Panzlau questioned the judge about potential conflicts.

¶ 20 As relevant here, the Colorado Code of Judicial Conduct

provides that “[a] judge should disqualify himself or herself in any

proceeding in which the judge’s impartiality might reasonably be

8
questioned, including but not limited to the following

circumstances: . . . [t]he judge . . . was associated with a lawyer

who participated substantially as a lawyer in the matter during

such association.” C.J.C. 2.11(A)(5)(a). But the Code is “intended

to protect public confidence in the judiciary rather than to protect

the individual rights of litigants.” A.G., 262 P.3d at 650. C.R.C.P.

97, which provides the only legal basis for disqualification of a

judge, does not refer to an “appearance of impropriety.” “[I]n the

absence of evidence demonstrating actual judicial bias or prejudice,

a trial judge’s potential violation of these rules does not mandate

reversal.” Richardson v. People, 2020 CO 46, ¶ 39, 481 P.3d 1, 8.

¶ 21 Maiker acknowledges that the Colorado appellate courts have

not addressed whether a judge must be disqualified from a case in

which the judge’s former employer, but not the judge himself or

herself, represented one of the parties in an unrelated case at the

time the judge worked for the employer.

¶ 22 We join other jurisdictions in holding that, under these

circumstances, the former employer’s representation of the party

“with regard to a matter unrelated to litigation before [the judge]

does not automatically require recusal.” Nat’l Auto Brokers v. Gen.

9
Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978); see also Martin v.

Monumental Life Ins. Co., 240 F.3d 223, 235-36 (3d Cir. 2001)

(holding that recusal is not required in a case where a party is

represented by a firm of which the judge was a partner several

years earlier); In re Wilhite, 298 S.W.3d 754, 756 (Tex. App. 2009)

(upholding the denial of a motion to recuse in an asbestos case

where the judge had been a partner at a law firm that had

represented the defendant in asbestos litigation several years

before, but in which the judge had not been involved).

¶ 23 Therefore, here, the judge was not automatically required to

recuse. Contrary to Panzlau’s assertion, the judge’s impartiality

cannot “reasonably be questioned” based on the judge’s prior

relationship to the firm because the firm did not represent the

Authority in “the matter” currently before the court. See C.J.C.

2.11(A)(5)(a). Additionally, because the judge asserted that “he was

not aware the law firm he previously worked for had represented

[the Authority] until [Panzlau] first moved for recusal,” the earlier

litigation involved a different subject matter (personal injury) from

the subject matter of this case, “the case was resolved over five

years before this case was filed,” and the judge “was not involved in

10
it,” the judge did not abuse his discretion by denying Panzlau’s

recusal motions. (The district judge could also have properly denied

all three of Panzlau’s recusal motions based on her failure to tender

the supporting affidavit required under C.R.C.P. 97.)

¶ 24 Lastly, Panzlau did not raise in the district court the alleged

conflict concerning the judge’s “Bright by Three” charity as a basis

for recusal, so we will not address such alleged conflict. See In re

Estate of Ramstetter, 2016 COA 81, ¶ 64, 411 P.3d 1043, 1053.

5. The Judge Was Not Required to Stay the Proceedings Upon the
Filing of the Third Recusal Motion

¶ 25 Panzlau asserts that, under Rule 97, once she filed the third

recusal motion, the district judge was required to stay the

proceedings until he ruled on the motion. We are not convinced

that the rule requires a judge to stay the proceedings when a party

files repetitive recusal motions that rest on the same factual

allegations.

¶ 26 A division of this court addressed an analogous issue involving

multiple competency motions in People v. Rodriguez, 2022 COA 98,

___ P.3d ___. There, the division held that “a successive

competency motion that does not raise new indicia of incompetency

11
regarding a defendant who was previously examined and

determined to be competent” does not “trigger the procedures”

ordinarily required when a competency motion is filed — beginning

with an order for a competency evaluation. Id. at ¶ 55, ___ P.3d at

___. The division explained that “[s]tripping district courts of their

discretion to decline to order a competency evaluation where no

such evaluation is warranted would allow lawyers to delay trials . . .

by filing competency motion after competency motion.” Id. at ¶ 57,

___ P.3d at ___.

¶ 27 We hold that the same logic applies here and therefore hold

that Rule 97 does not require judges to stay the proceedings when a

party files a successive recusal motion that rests on the same

factual underpinnings as the party’s prior unsuccessful motion to

recuse. Although Panzlau referenced new legal authorities in her

second and third recusal motions, all three of her recusal motions

arose from the judge’s former law firm’s representation of the

Authority in unrelated matters when the judge worked at the firm.

Because the three recusal motions rested on the same alleged facts,

the district judge was not required to stay the proceedings when

Panzlau filed the third recusal motion. The judge did not err by

12
staying the proceedings for the further reason that, as noted in Part

II.B.4, Panzlau failed to support the third recusal motion with the

required affidavit. See C.R.C.P. 97.

C. The Court’s Dismissal of Panzlau’s Counterclaims

1. Additional Facts Concerning Panzlau’s Counterclaims

¶ 28 On April 30, 2021, Maiker filed a motion for dismissal of

certain of Panzlau’s second counterclaims and to strike or, in the

alternative, for a more definite statement regarding those

counterclaims. The court granted the motion, in part. It ordered

Panzlau to “amend her counterclaims of negligence, breach of

contract, and constructive eviction in substantial conformance with

the pleading standards of Warne [v. Hall, 2016 CO 50, 373 P.3d

588],” and to “state her claims clearly and in separately-numbered

counts in compliance with C.R.C.P. 12(e).” The court dismissed all

of Panzlau’s other counterclaims for failure to state claims upon

which relief can be granted under Rule 12(b)(5).

¶ 29 Panzlau filed amended counterclaims for negligence, breach of

contract, and constructive eviction (the third counterclaims) on

June 7, 2021.

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¶ 30 Maiker moved to dismiss the third counterclaims, arguing that

Panzlau’s “claims for negligence and breach of contract . . . are

preempted by the Colorado Premises Liability Act, [§ 13-21-115(2),

C.R.S. 2022,]” and that her “constructive eviction [c]ounterclaim

. . . does not state a claim pursuant to the pleading[] standards of

Warne.”

¶ 31 On July 27, 2021, Panzlau filed a response to Maiker’s motion

to dismiss the third counterclaims. Panzlau’s July 27 filing

included a “statement” of her counterclaims. That “statement”

referred only to counterclaims for negligence arising under the

Premises Liability Act and for constructive eviction. Notably, the

July 27 filing did not refer to the breach of contract counterclaim

that Panzlau had pleaded in the first, second, and third

counterclaims.

¶ 32 We cannot discern whether, through the July 27 filing,

Panzlau merely sought to provide further information regarding

certain of her pending counterclaims or sought to amend her

counterclaims yet again. If the latter, she failed to seek or obtain

leave of court or Maiker’s written consent for the amendment, as

C.R.C.P. 15(a) requires. (Maiker later advised the court that it did

14
not oppose Panzlau’s attempt to amend the third counterclaims.) In

any event, Maiker and the court treated the July 27 filing as a new

set of amended counterclaims (the fourth counterclaims). For that

reason, so do we.

¶ 33 On August 6, 2021, Maiker filed a motion to dismiss Panzlau’s

negligence (premises liability) and constructive eviction

counterclaims (jointly, the tort counterclaims) in the fourth

counterclaims pursuant to the Colorado Governmental Immunity

Act, sections 24-10-101 to -120, C.R.S. 2022, (CGIA). In its motion,

Maiker took the position that Panzlau had abandoned her breach of

contract counterclaim by not incorporating it into the fourth

counterclaims. Thus, Maiker asserted that only two counterclaims

remained — the tort counterclaims — and that both failed because

Maiker is a public entity for purposes of the CGIA and Panzlau had

not provided Maiker with the timely written notice required under

the CGIA. § 24-10-109(1), C.R.S. 2022. Because a claimant’s

failure to comply with the CGIA’s notice requirement deprives a

court of subject matter jurisdiction over the claimant’s later tort

claims against the public entity, Maiker argued that the court

lacked subject matter jurisdiction over the tort counterclaims.

15
¶ 34 On October 22, 2021, the court entered an order pronouncing

that Panzlau’s “counterclaims are dismissed with prejudice.” The

court noted that, because Panzlau did not “assert a breach of

contract claim” in the fourth counterclaims, only two counterclaims

remained in the case — the tort counterclaims. And, according to

the court, the tort counterclaims failed under the CGIA.

¶ 35 The court provided several grounds for its ruling. First, the

court said “[t]here exist sufficient grounds to strike the pleadings

and dismiss all counterclaims based on non-compliance with

previous court orders.” Second, in the alternative, the court

analyzed the tort counterclaims under the CGIA because it found

that Maiker is a public entity. The court also held that the tort

counterclaims were subject to dismissal because Panzlau had failed

to comply with the notice requirement in the CGIA and, therefore,

the court lacked subject matter jurisdiction over those

counterclaims.

2. Dismissal Pursuant to the CGIA

¶ 36 Three of the issues Panzlau raises on appeal relate to the

CGIA. Specifically, Panzlau asserts that (1) the court “allowed

[opposing counsel] to determine [Panzlau’s] date of injury” even

16
though the date was “unknowable” to opposing counsel; (2) “the

Notice of Claim was properly filed . . . within the 182 day time limit”

set forth in section 24-10-109(1); and (3) because Maiker had not

complied with “all of the Laws” as its contract with Adams County

required, Panzlau was entitled to a hearing (a Trinity hearing) under

Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d

916 (Colo. 1993), to determine whether the CGIA applied to Maiker.

All of these arguments fail.

a. Applicable Law and Standard of Review

¶ 37 Except as specified in the CGIA, the CGIA immunizes public

entities from “all claims for injury which lie in tort or could lie in

tort.” § 24-10-106(1), C.R.S. 2022; see Maphis v. City of Boulder,

2022 CO 10, ¶ 17, 504 P.3d 287, 291. “Public entity” includes “any

county”; any “instrumentality, or political subdivision thereof

organized pursuant to law[;] and any separate entity created by

intergovernmental contract or cooperation only between or among

the . . . county.” § 24-10-103(5), C.R.S. 2022. The definition thus

encompasses a county housing authority, which “shall constitute a

public body, corporate and politic” that “exercise[s] public and

essential governmental functions.” § 29-4-505(1), C.R.S. 2022; see

17
also Martinez v. CSG Redevelopment Partners LLLP, 2019 COA 91,

¶ 3, 469 P.3d 491, 492 (concluding that a partnership was an

“instrumentality of a public entity within the meaning of the CGIA,

and therefore a public entity itself entitled to governmental

immunity”) (cert. granted Mar. 30, 2020).

¶ 38 As a jurisdictional prerequisite to filing a tort claim against a

public entity, the CGIA provides that the complainant must provide

the public entity with written notice of his or her claim within 182

days after discovering the injury. § 24-10-109(1). “[F]ailure of

compliance [with the notice requirement] shall forever bar any such

action.” Id. “[T]o start the running of the CGIA notice period, a

claimant need only have discovered that he or she has been

wrongfully injured, and need not yet know the cause of the injury or

the extent of the damage.” Abrahamson v. City of Montrose, 77 P.3d

819, 821 (Colo. App. 2003).

¶ 39 When reviewing a jurisdictional issue pertaining to

governmental immunity resting on disputed facts, we employ “the

clearly erroneous standard of review in considering the trial court’s

findings of jurisdictional fact.” Springer v. City & Cnty. of Denver,

13 P.3d 794, 798 (Colo. 2000). However, we review the

18
jurisdictional issue de novo “if the alleged facts are undisputed and

the issue is purely one of law.” Id.

b. The Court Lacked Subject Matter Jurisdiction Over
the Tort Counterclaims Because Panzlau Failed to Comply
with the CGIA’s Notice Requirement

¶ 40 Both causes of action specified in Panzlau’s fourth

counterclaims “lie in tort or could lie in tort.” § 24-10-106(1); see

also Vigil v. Franklin, 103 P.3d 322, 328 (Colo. 2004) (holding that

the premises liability statute is “the sole codification of landowner

duties in tort”); H & K Auto. Supply Co. v. Moore & Co., 657 P.2d

986, 988 (Colo. App. 1982) (noting that a claim of constructive

eviction can be an action in tort or an action on a contract). Both

counterclaims arise from the alleged damages and injuries caused

by the mold in Panzlau’s apartment.

¶ 41 Because Maiker is an instrumentality of Adams County, under

the CGIA, Panzlau was required to prove that, before she asserted

her tort counterclaims, she had provided Maiker with written notice

of her tort claims within 182 days of her discovery of the alleged

damages and injuries resulting from the presence of mold in her

apartment. See Martinez, ¶ 3, 469 P.3d at 492; § 24-10-109(1), (6).

(While we agree with Panzlau that Maiker must follow the law, we

19
are aware of no authority holding that the CGIA does not apply to a

public entity that allegedly failed to comply with “all of the Laws.”

We note that Panzlau’s allegations that Maiker violated the law are

subsumed within her other arguments and other counterclaims.)

¶ 42 There is no dispute that Panzlau sent Maiker written notice of

her mold-related claims on July 28, 2021. (We address only the

timing of the notice. In light of our resolution of that issue, we need

not also consider the validity of the notice.) In Panzlau’s response

to Maiker’s motion to dismiss under the CGIA, she asserted that

“her date of injury was the final day of mold exposure while

removing her personal items from the premises, and the date that

all of her personal belongings were left behind due to mold

contamination. . . . [—] April 9th, 2021.” Based on this date,

Panzlau contended that she provided timely notice to Maiker. (If

Panzlau discovered the facts underlying her tort counterclaims on

April 9, 2021, then the deadline for the notice to Maiker would have

been October 8, 2021.)

¶ 43 However, in an email to a Maiker employee dated January 19,

2021, Panzlau acknowledged that she had received the report

showing elevated levels of mold in her apartment and stated that

20
there were “several HIGH spore counts of other forms of mold

present ALL which cause either minor or major health problems.”

In the same email, Panzlau said that her ceiling was never repaired

correctly from a flood in 2016, and that she had been suffering from

“debilitating migraines with vomiting [and] cold sweats” while living

in the apartment. The district court found that Panzlau’s email

“supports that the date of the discovery of the injury for [Panzlau’s

tort counterclaims] was prior to, and certainly not later than,

January 19, 2021,” and that her notice to Maiker was thus due by

July 20, 2021 under the CGIA.

¶ 44 We hold that the district court applied the correct legal

standard for determining when the notice period runs — from the

time of discovery of the injuries and not, as Panzlau asserts, from

the last day of exposure. (Panzlau did not allege that she had

experienced any new mold-related injuries after January 19, 2021.)

We additionally see no clear error in the district court’s finding that

Maiker “set forth ample evidence that [Panzlau] admitted to

knowledge of her claimed injuries and even the source of mold as

the cause, establishing a date of discovery on or before January 19,

2021, [which] makes her July 28 notice untimely.”

21
¶ 45 Contrary to Panzlau’s contention, the district court did not

“allow” opposing counsel to determine Panzlau’s date of injury.

Rather, Panzlau’s own communications with Maiker reflect the date

by which she had actual knowledge of, and therefore had

discovered, her mold-related injuries. The undisputed facts

therefore establish that Panzlau failed to serve Maiker with timely

notice of her mold-related tort claims under the CGIA.

¶ 46 Additionally, in light of these undisputed facts, the district

court did not abuse its discretion by not conducting a Trinity

hearing to determine whether the CGIA barred the tort

counterclaims. See Bilderback v. McNabb, 2020 COA 133, ¶ 10,

474 P.3d 247, 251 (“We review the court’s decision whether to

conduct a Trinity hearing for abuse of discretion.”). A court is not

required to conduct a Trinity hearing where there is no factual

dispute that the claimant failed to provide the public entity with

timely notice of her claim. See id. at ¶ 9, 474 P.3d at 250 (“When

there is no evidentiary dispute, the court may . . . decide the

sovereign immunity question without a hearing, based on the

pleadings alone.”).

22
¶ 47 Accordingly, the district court properly dismissed Panzlau’s

tort counterclaims for lack of subject matter jurisdiction pursuant

to the CGIA.

3. Dismissal for Failure to State a Claim Upon Which Relief Can
Be Granted Under C.R.C.P. 12(b)(5)

¶ 48 Because we affirm the court’s dismissal of the tort

counterclaims based on Panzlau’s failure to comply with the CGIA’s

notice requirement, we do not reach the court’s alternative holding

that the tort counterclaims fail because of Panzlau’s failure to

comply with previous court orders. Although, as noted above, we

assume, as did Maiker and the court, that Panzlau abandoned her

breach of contract counterclaim by not including it in the fourth

counterclaims, we next consider whether she sufficiently pleaded

her breach of contract counterclaim in the event it survived the

filing of the fourth counterclaims.

a. Legal Principles

¶ 49 To determine whether a plaintiff stated a claim upon which

relief can be granted, Colorado courts employ the same “plausibility

standard” for dismissal that the United States Supreme Court

articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 560

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(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Warne,

¶ 24, 373 P.3d at 595. Because the pleading requirements

embodied in the Colorado rules were “borrowed from the prevailing

interpretation of the corresponding federal rules, by both the lower

federal courts and ultimately the Supreme Court itself,” federal

cases interpreting those pleading requirements are highly

persuasive authority, particularly as we strive toward the “goal of

establishing uniformity between state and federal judicial

proceedings in this jurisdiction.” Id. at ¶¶ 14-15, 373 P.3d at 593.

¶ 50 Under the plausibility test adopted in Warne, a claim is

subject to dismissal unless “the factual allegations . . . [are] enough

to raise a right to relief ‘above the speculative level.’” Walker v.

Women’s Pro. Rodeo Ass’n, 2021 COA 105M, ¶ 37, 498 P.3d 648,

657 (quoting Warne, ¶ 9, 373 P.3d at 591). As our supreme court

recently explained, a complainant must “allege sufficient facts that,

if taken as true, show plausible grounds to support a claim for

relief.” Jagged Peak Energy Inc. v. Okla. Police Pension & Ret. Sys.,

2022 CO 54, ¶ 25, ___ P.3d ___, ___.

¶ 51 “In determining the plausibility of a claim, we look to the

elements of the particular cause of action, keeping in mind that the

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[plausibility] standard doesn’t require a plaintiff to ‘set forth a prima

facie case for each element.’” George v. Urb. Settlement Servs., 833

F.3d 1242, 1247 (10th Cir. 2016) (quoting Khalik v. United Air

Lines, 671 F.3d 1188, 1192-93 (10th Cir. 2012)). But “[d]espite the

liberality of modern rules of pleading, a complaint still must contain

either direct or inferential allegations respecting all the material

elements necessary to sustain a recovery under some viable legal

theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)

(quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir.

Unit A Sept. 1981)). Thus, “although a plaintiff need not plead

a prima facie case, she must at least set forth enough factual

allegations to plausibly support each of the . . . basic elements” of

her claim. Mandala v. NTT Data, Inc., 975 F.3d 202, 209 (2d Cir.

2020); see also Nat’l Commodity & Barter Ass’n, Nat’l Commodity

Exch. v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989) (remanding to

the district court “with directions to permit an amended complaint

which outlines in clear, direct and understandable terms the

precise factual allegations to support each essential element of

these claims”). The plausibility standard thus “necessarily requires

that a plaintiff include factual allegations for each essential element

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of his or her claim.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d

1244, 1254 (11th Cir. 2012) (emphasis added), abrogated on other

grounds, N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. ___, 142

S. Ct. 2111 (2022).

b. Standard of Review

¶ 52 “We review de novo an order dismissing claims for failure to

state a claim upon which relief can be granted under C.R.C.P.

12(b)(5).” Walker, ¶ 36, 498 P.3d at 657. “In doing so, we accept all

factual allegations in the complaint as true, viewing them in a light

most favorable to the plaintiff.” Hess v. Hobart, 2020 COA 139M2,

¶ 11, 477 P.3d 771, 774.

c. Panzlau’s Breach of Contract Counterclaim

¶ 53 Panzlau’s third counterclaims did not contain sufficient facts

to show plausible grounds to support her breach of contract

counterclaim. Panzlau’s counterclaim apparently rested on her

allegations that Maiker’s handling of the mold situation violated

(1) express terms of Panzlau’s lease; and (2) the implied warranty of

habitability, section 38-12-503, C.R.S. 2022.

¶ 54 Specifically, Panzlau alleged:

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 “The apartment became uninhabitable on or before 23

December 2020” and “mold had been present long before

that.”

 “Maintenance staff routinely entered [Panzlau’s]

apartment without giving proper 24 hour notice for non-

emergency purposes and while defendant was not

present after expressly conveying to management that

personal items had been stolen by maintenance staff and

requesting that she be present during visits.”

 “[Maiker] is materially in Breach of the Implied warranty

of habitability due to the conditions of toxic mold that

exist in the walls and ceiling of the Property.”

 “Water and heat had been off for several days during

November of 2020 when the boiler failed and had to be

repaired or replaced . . . [in] violation of the Warranty of

Habitability.”

 “[Maiker] has knowingly engaged in failing to remediate

the mold and water damaged materials in the property.”

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 “[Maiker] knowingly failed to install special air filtration

device(s) in the apartment required by the law after the

mold test returned positive.”

 Maiker acted in bad faith.

¶ 55 First, Panzlau pleaded insufficient facts to assert an actionable

claim for breach of an express provision of the lease. The elements

of a prima facie breach of contract claim are: “(1) the existence of a

contract; (2) performance by the plaintiff or some justification for

nonperformance; (3) failure to perform the contract by the

defendant; and (4) resulting damages to the plaintiff.” Marquardt v.

Perry, 200 P.3d 1126, 1129 (Colo. App. 2008). Here, because

Panzlau cited to no specific provision of her lease that Maiker

allegedly breached, she did not set forth sufficient factual

allegations to plausibly support the “failure to perform” element of

her breach of contract counterclaim.

¶ 56 Second, Panzlau pleaded insufficient facts to assert an

actionable claim for breach of the implied warranty of habitability.

Under section 38-12-503(2.2), which applies where, as here, “a

residential premises has mold that is associated with dampness,

. . . a landlord breaches the warranty of habitability if the landlord

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fails” to “mitigate immediate risk from mold” by taking specific steps

“[w]ithin ninety-six hours after receiving reasonably complete written

or electronic notice of the condition” and execute additional remedial

actions “[w]ithin a reasonable amount of time.”

§ 38-12-503(2.2)(a),(c) (emphasis added). If the notice concerns a

condition that “materially interferes with the tenant’s life, health, or

safety,” the landlord must, at the request of the tenant, provide a

comparable dwelling unit or a hotel room at no expense or cost to

the tenant. § 38-12-503(2)(a)(II), (4)(a). However, Panzlau did not

allege that she provided Maiker with the notice required to trigger

the landlord’s duties identified in subsections 38-12-503(2.2) and

(4)(a). Absent an allegation that Panzlau provided Maiker with the

statutory notice of mold, Panzlau’s breach of contract counterclaim

does not state plausible grounds for relief under the warranty of

habitability statute.

¶ 57 Therefore, Panzlau’s breach of contract counterclaim was

subject to dismissal at the pleading stage, regardless of whether she

abandoned it by not including it in the fourth amended

counterclaims. For these reasons, we need not reach Panzlau’s

arguments that the court “ignored” (1) “the updated language of the

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Habitability law modified by HB19-11701(b) regarding mold”;

(2) “every single prayer for relief from the defendant — even relief

that was contractually provided for by the [contract with Adams

County] and the habitability laws[’] prohibition on retaliation for

reporting mold in good faith”; (3) “[that Maiker’s] [n]otice to quit was

for [an] improper period of time”; and (4) “the violation of

[c]ontractual [l]anguage of the Maiker Lease Agreement,” which

allowed Maiker’s counsel “to demand payment multiple times.” The

court could not have addressed the merits of these issues because

the claim failed at the pleading stage.

D. Panzlau’s Remaining Contention

¶ 58 Panzlau also contends that the court “arbitrarily and

capriciously deemed information and motions” that Panzlau

submitted throughout the case as lacking “valid subject matter, or

merit, or [as] not being specific enough — rendering them improper,

or moot, and allowing them to be struck in whole, in part or

dismissed . . . to minimize Maiker’s Liability.”

¶ 59 As Panzlau’s notice of appeal indicates, she appealed only one

of the court’s orders — the October 22, 2021, order dismissing her

remaining counterclaims. Our analysis above fully addresses

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Panzlau’s arguments regarding that order. To the extent Panzlau’s

arguments regarding other orders are properly before us, we reject

her contention that the district court acted arbitrarily or

capriciously by entering those orders.

III. Conclusion

¶ 60 The judgment is affirmed.

JUDGE FOX and JUDGE FREYRE concur.

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