Bruce v. Aurora Convention Center

25CA0111 Bruce v Aurora Convention Center 11-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0111
El Paso County District Court No. 23CV30432
Honorable Hilary Gurney, Judge

Douglas Bruce,

Plaintiff-Appellant,

v.

Aurora Convention Center Hotel Lessee, LLC; Marriott Hotel Services, LLC; and
Colorado Christian University

Defendants-Appellees.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE TOW
Lum and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 6, 2025

Douglas Bruce, Pro Se

Childs McCune Michalek LLC, Sarah Van Arsdale Berry, Karin B. Williamson,
Denver, Colorado, for Defendants-Appellees Aurora Convention Center Hotel
Lessee, LLC and Marriott Hotel Services, LLC

Gordon Rees Scully Mansukhani LLP, John R. Mann, Greg S. Hearing II,
Brittney Bulawa, Denver, Colorado, for Defendant-Appellee Colorado Christian
University
*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 Plaintiff, Douglas Bruce, appeals the district court’s order

granting summary judgment in favor of defendants, Aurora

Convention Center Hotel Lessee, LLC, d/b/a Gaylord Rockies

Resort & Convention Center (Gaylord); Marriott Hotel Services, LLC

(Marriott); and Colorado Christian University (CCU). We affirm the

judgment and remand for the determination of appellate attorney

fees.

I. Background

A. Factual Background

¶2 The following facts are taken from Bruce’s third amended

complaint and the submissions of the parties on the motions for

summary judgment.

¶3 Bruce attended a conference sponsored by CCU. The

conference took place at the Gaylord. Bruce approached the stage

during an event to hand papers to the speaker. As he returned to

his seat from the stage area, Bruce tripped and fell to the floor,

landing on a monitor that was acting as the speaker’s teleprompter.

Bruce suffered injuries as a result of the fall.

1
B. Procedural Background

¶4 Bruce brought claims under the Colorado Premises Liability

Act (PLA), § 13-21-115, C.R.S. 2025, against Gaylord and its

property manager, Marriott. Bruce filed multiple amended

complaints, adding PLA claims against CCU and two entities that

were involved in the management or set up of the conference,

ShowPro of South Florida, Inc. (ShowPro) and Legacy Productions,

Inc. (Legacy). In addition, Bruce asserted common law negligence

claims in the alternative against ShowPro and Legacy. ShowPro

was dismissed from the case after reaching a settlement with Bruce.

Shortly thereafter, Gaylord, Marriott, and CCU filed a joint motion

for summary judgment (the joint motion).1 Legacy separately joined

in this motion. Among other things, the parties argued that

summary judgment was appropriate because “there was no

dangerous condition present, [and] there was no breach of the

1 Gaylord and Marriott, though separate entities, were represented

by the same counsel, who referred to them collectively in the
summary judgment briefing as “Marriott.” Curiously, defendants
and Bruce at times appear to treat these two entities as a single
defendant. We attempt to unravel the confusion this creates below.

2
standard of care.”2 The joint motion reflects that it was served on

Bruce both by mailing it to his post-office box and emailing it to his

personal account.

¶5 More than two weeks after the deadline to respond to the joint

motion, Bruce filed a response that, though styled as an affidavit,

was not dated, signed, or notarized. The next day, Bruce filed a

substantially similar, though not identical, response that was

dated, signed, and notarized. Later that day, the district court

issued its order granting the joint motion.

¶6 The district court granted summary judgment in favor of all

four remaining defendants on the PLA claims.3 Specifically, the

court concluded that a video submitted as an exhibit to the joint

motion unequivocally depicted Bruce tripping over the monitor,

which was at least as high as Bruce’s knee and sitting in plain

2 The parties also challenged whether CCU and Legacy were

landowners under the PLA. The district court did not grant
summary judgment on that basis, however, so we do not discuss
that issue further.
3 In the order, the district court classified Legacy’s motion as “a

motion for partial summary judgment” because it did not provide
any argument on the negligence claim. Several months later, the
district court granted Legacy’s second motion for summary
judgment, resolving this final claim.

3
sight. The court observed that the video established that there was

room to walk around the monitor, there were lights to illuminate

the floor, and the monitor was illuminated when Bruce walked into

it. The court further noted that, to the extent Bruce alleged that he

tripped over electrical wires taped to the floor, as opposed to the

monitor, he failed to present any evidence establishing the existence

of any such tangle or mass of wires or that any such wires created a

dangerous condition.

¶7 In light of this video, the court determined that Bruce had

failed to satisfy his burden of bringing forward sufficient evidence to

show the existence of a dangerous condition. The district court

additionally concluded that Bruce had not provided any evidence to

suggest that any of the remaining defendants knew or should have

known that the monitor was a dangerous condition.

II. Bruce’s Noncompliant Brief

¶8 Initially, we note that neither Bruce’s notice of appeal nor his

opening brief complies with the appellate rules. The notice of

appeal does not include a general statement of the nature of

controversy; the judgment, orders, or parts being appealed; or an

advisory listing of the issues to be raised on appeal. See C.A.R.

4
3(d)(2)(A)-(B), (d)(3). Bruce’s opening brief, which appears to be a

substantially verbatim repeat of the notice of appeal, does not

include a certificate of compliance with all of C.A.R. 28; a table of

contents with page references; a table of authorities; a statement of

the issues presented for review; a concise statement identifying the

ruling, judgment, or order presented for review; a summary of the

arguments; or discrete arguments set out under separate headings.

See C.A.R. 28(a)(1)-(7).

¶9 In sum, Bruce’s filings are a string of assertions without any

citations to the record or case law. In light of this substantial

noncompliance, Gaylord requests that Bruce’s appeal be dismissed.

Doing so would be within our discretion and, in fact, may well be

warranted in this case. See C.A.R. 38(a) (“The appellate court may

dismiss an appeal . . . for the failure to comply with any of its

orders or these appellate rules. . . .”). As a pro se party, Bruce must

comply with procedural rules to the same extent as a represented

party. See Adams v. Sagee, 2017 COA 133, ¶ 10.

¶ 10 Nevertheless, we note that Gaylord and CCU were able to file

coherent briefs that adequately state their positions as to the

propriety of the district court’s summary judgment order. Thus, we

5
exercise our discretion to address the merits of Bruce’s contentions

to the extent they are adequately developed.

III. Scope of this Appeal

¶ 11 As a related preliminary matter, we pause to discuss what is

properly before us, both in terms of parties and claims, in this

appeal.

A. Parties to the Appeal

¶ 12 In the caption of Bruce’s notice of appeal, he identifies

defendants-appellees as “Aurora Convention Center Hotel Lessee

and Colorado Christian University.” Maintaining that caption,

notwithstanding the parties designated in it, Bruce asserts in both

his notice of appeal and his opening brief that he “continues his

suit on appeal with CCU and Marriott only.” In addition, Bruce’s

background section of his opening brief begins with the incorrect

statement that “four corporate defendants were served.” As noted

above, there were five corporate defendants in this case: Gaylord,

Marriott, CCU, ShowPro, and Legacy. Likely flowing from this

caption, Marriott did not file an answer brief or otherwise actively

6
participate in this appeal;4 even though all of Gaylord’s pleadings in

the district court were also filed on behalf of Marriott, Gaylord’s

answer brief did not mention Marriott at all. And although both

parties identified in the caption filed answer briefs, Bruce complains

in his reply brief that one appellee never filed an answer brief.

Presumably, Bruce is referring to either Marriott or

Legacy — though which one is unclear.5

¶ 13 This confusion seems to stem, at least in part, from the fact

that Gaylord and Marriott were represented by the same counsel,

who at times treated these separate corporate entities as a single

defendant. For example, the joint motion — which referred to

4 Shortly after Bruce filed the notice of appeal, attorneys Karin

Williamson and Julia Morgenthau filed an entry of appearance “on
behalf of” Gaylord only. Several months later, however, in a notice
informing the court that their firm’s name and address had
changed, these attorneys identified themselves in both the caption
and signature block as “Attorneys for Defendants [Gaylord] and
[Marriott].” By signing this filing, these attorneys entered their
appearance before this court as counsel for Marriott as well as
Gaylord. See C.A.R. 5(a).
5 There is no provision in the appellate rules for imposing a default

judgment, as Bruce appears to suggest is warranted.

7
Gaylord and Marriott collectively as Marriott6 — contained a

footnote explaining the procedural history of the case in which

counsel said, “ShowPro has since been dismissed from this matter

leaving the remaining three defendants: Marriott, Legacy, and CCU.”

(Emphasis added.)

¶ 14 Under a strict application of the appellate rules, we could

conclude that Bruce only appealed the judgment as to either

Gaylord or Marriott but not both. But choosing which one would be

wholly arbitrary on this record since the filings mention one only in

the caption and the other only in the body. Moreover, we are to

liberally construe a pro se party’s pleadings. Adams, ¶ 10.

Furthermore, given that all three parties have contributed to the

confusion — Bruce through the inconsistency between the caption

and the body of his appellate filings and Gaylord and Marriott

through their joint counsel’s alternating treatment of the entities as

merely aligned or as a single entity — we deem Bruce’s appeal to be

6 We do not suggest that referring to separate but aligned parties by

a collective defined term in court filings is inappropriate. Nor do we
suggest that doing so somehow merges the aligned parties into a
single party. We note it here simply as context for the confusion as
to which entities are, or should be, parties to this appeal.

8
directed at the judgment entered in favor of both Gaylord and

Marriott (as well as CCU). In addition, given the misleading caption

and the muddled notice of appeal and opening brief, and in light of

the fact that every filing by Gaylord and Marriott’s joint counsel in

the district court has been filed on behalf of both parties, we deem

the answer brief filed by Gaylord’s counsel to also be filed on behalf

of Marriott.7 In our view, this resolution of the confusion avoids

prejudicing any party and places all parties in the appellate posture

they actually contemplated.

B. Issues on Appeal

¶ 15 Equally unclear is what, precisely, Bruce intends to appeal. In

both the notice of appeal and the opening brief, he purports to

appeal “the actions and orders taken by Division 14 of the District

Court in El Paso County.” But, as noted, the notice of appeal does

not identify the specific “judgment, order[] or parts being appealed.”

C.A.R. 3(d)(2)(B). And the brief does not clearly lay out separate

appellate issues or claims.

7 To balance the goals of avoiding confusion while maintaining

brevity, we refer to the two parties collectively as “Gaylord/Marriott”
for the remainder of this opinion.

9
¶ 16 Instead, Bruce’s briefs contain largely conclusory assertions

without any supporting references to case law or the appellate

record. It is “not the duty of the reviewing court to search the

record for evidence to support bald assertions.” Brighton Sch. Dist.

27J v. Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App.

1996), aff’d, 940 P.2d 348 (Colo. 1997). And we will not address

undeveloped or conclusory appellate arguments. Woodbridge

Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12,

aff’d, 2021 CO 56. Finally, liberal construction of a pro se party’s

pleadings “does not include inventing arguments not made by the

pro se party.” Minshall v. Johnston, 2018 COA 44, ¶ 21.

¶ 17 As best we can glean from Bruce’s opening brief, he intends to

challenge virtually every decision made by the district court. But

the following contentions are wholly undeveloped:

• “The judge denied [Bruce’s] continued use of e-filing

(email) systems allowed to attorneys.” He cites no

provision of law that requires pro se parties to be

allowed to e-file or file and serve by email.

• The court mistakenly “contend[ed] [Bruce] had not

objected to withdrawal of his counsel.” He points to

10
nothing in the record that demonstrates that he filed

any such objection with the court before the court ruled

on the withdrawal request. See C.R.C.P. 121, § 1-1(2)(b)

(The court may grant a motion to withdraw if the motion

“has been filed and served on the client” and “the

client . . . consent[s] in writing at or after the time of the

service of said motion, or at least 14 days have expired

after service.”).

• The court allowed counsel to withdraw “with no stated

good cause and no hearing.” He cites no authority

establishing a good cause threshold or a requirement

for a hearing before counsel may be permitted to

withdraw.

• The court improperly muted him during a telephonic

status conference. Because he provides no transcript of

the hearing, we must presume that it would support the

court’s decision to do so. See EnCana Oil & Gas (USA),

Inc. v. Miller, 2017 COA 112, ¶ 16 n.4.

• The court inappropriately used a street address that

has no mail receptacle instead of his post-office box. He

11
does not allege that any prejudice, such as missed filing

deadlines, resulted from the delays caused by these

incorrect mailings.8 See Wunder v. Dep’t of Revenue,

867 P.2d 178, 181 (Colo. App. 1993) (finding plaintiff

did not demonstrate any prejudice resulting from

improper notification during judicial proceedings).

• The court mishandled his C.R.C.P. 97 motion to

disqualify the judge because “Rule 97 allows referral to

8 Bruce alleges that these mailing mistakes constituted an effort by

the district court judge to “block[] contact to and by” Bruce.
Similarly, Bruce surmises that the judge’s ruling were, at least in
part, influenced by the judge’s “hate” of Bruce’s political views and,
thus, aimed “to deny [Bruce] money” for his injuries. Obviously, the
court was mistaken in using a street address instead of the
post-office box provided in Bruce’s complaint and on his counsel’s
motion to withdraw — especially when the court file reflects that the
first such mailing was returned as undeliverable. But judges do not
generally address the mail themselves; that task is handled by the
judicial branch’s case management system or by court staff. In
short, there is no basis whatsoever for Bruce inferring any ill will or
“hatred” on the part of the district judge. See People v. Thoro Prods.
Co., 45 P.3d 737, 747 (Colo. App. 2001) (“Legal rulings in a case
are, by themselves, insufficient to demonstrate a bias or prejudice
against a party.”), aff’d, 70 P.3d 1188 (Colo. 2003). Such scurrilous
allegations have no place in litigation; thus, we hereby put Bruce on
notice that this court may summarily strike any future such filings
and may also impose sanctions, including dismissal and an award
of attorney fees. See Martin v. Essrig, 277 P.3d 857, 861-62 (Colo.
App. 2011).

12
the presiding judge, but the trial judge denied that too.”

He cites no authority requiring such a referral or

demonstrating that the judge’s decision not to do so on

the facts of this case was improper and offers no other

argument pertaining to the court’s denial of the motion

to disqualify.

Because these contentions are conclusory and undeveloped, we do

not address them further. See Woodbridge Condo. Ass’n, ¶ 41 n.12.

¶ 18 In addition, we note Bruce’s passing comment in his opening

brief that Gaylord/Marriott and CCU have “prematurely billed

appellant for their costs.” Costs are a separate issue from a merits

judgment. Oster v. Baack, 2015 COA 39, ¶ 20. Although

Gaylord/Marriott and CCU have filed bills of costs in the trial court,

the district court has not acted on them. Thus, the issue of costs is

not before us in this appeal.

¶ 19 Liberally construing Bruce’s briefs, we glean only three

appellate contentions that are even arguably sufficiently articulated

and developed: The trial court erred by (1) denying or not ruling on

his multiple requests to continue trial; (2) denying his request to

reopen discovery and amend his complaint to add allegations

13
regarding a subsequent injury he alleges was causally related to the

fall at issue in this case; and (3) granting the motion for summary

judgment in favor of Gaylord/Marriott and CCU. Because our

resolution of the third issue dispenses with the need to address the

first two, we turn to that first.

IV. Summary Judgment

¶ 20 As best we can discern, Bruce lodges several challenges

against the summary judgment order, both as to its form and its

merits. We address them in turn.

A. Form of the Order

¶ 21 In his opening brief, Bruce appears to argue that the order

granting summary judgment did not constitute a final order

because it was not titled “final order” and because, though the

court “granted” the motion for summary judgment, it did not

“dismiss” the case. Bruce misunderstands the effect of granting

summary judgment. Provided the order is reduced to writing and

signed, see C.R.C.P. 58(a), an order granting a defendant’s motion

for summary judgment is sufficient to resolve all claims addressed

by the order, see ISG, LLC v. Ark. Valley Ditch Ass’n, 120 P.3d 724,

730 (Colo. 2005) (deeming it wholly immaterial whether an order is

14
labelled a dismissal or a summary judgment because the legal

propriety of the order and its ultimate effect are the same).

¶ 22 Bruce also objects that the court did not vacate the trial date.

But at that time, the common law negligence claim against Legacy

remained pending. Thus, there was still a possibility that the case

would proceed to trial when the joint summary judgment motion

was granted. For similar reasons, the court could not, as Bruce

suggests, label the order granting the joint summary judgment

motion a “final order.” An order is not final for purposes of appeal

until it resolves all claims against all parties. C.R.C.P. 54(b). Had

the court so labeled the order, as Bruce insists should have been

done, it would have potentially confused the parties as to the

deadline for filing an appeal.

¶ 23 In short, we discern no error in the form of the court’s order

granting summary judgment.

B. Merits of the Order

¶ 24 Turning to the merits of the summary judgment order, Bruce

asserts the following: (1) the court incorrectly said Bruce had failed

to file an affidavit in opposition to the joint motion;

(2) Gaylord/Marriott and CCU failed to file any affidavits with the

15
joint motion; and (3) videos other than the one relied on by the

court would show a different depiction of the “distances, angles,

and degree of lighting.” After addressing the standard of review and

the applicable procedure for summary judgment motions, we

discuss, and reject, each contention.

1. Standard of Review and Applicable Procedure

¶ 25 We review de novo the district court’s order granting summary

judgment. Ruiz v. Chappell, 2020 COA 22, ¶ 8. 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 are

resolved against the moving party. Id.

¶ 26 A defendant seeking summary judgment must bring forth

sufficient information to demonstrate the absence of a genuine

issue of material fact. deBoer v. Jones, 996 P.2d 754, 755 (Colo.

App. 2000). This may be done not only through any affidavits that

are filed but also through pleadings, depositions, and responses to

discovery. C.R.C.P. 56(c). Where the issue is not one on which the

moving party would bear the ultimate burden of persuasion at trial,

the moving party’s initial burden is satisfied “by showing the court

that there is an absence of evidence in the record to support the

16
nonmoving party’s case.” Continental Air Lines, Inc. v. Keenan, 731

P.2d 708, 712 (Colo. 1987).

¶ 27 Once the moving party has cleared this hurdle, the burden

shifts to the plaintiff to produce enough evidence to demonstrate

the existence of a triable issue of fact. deBoer, 996 P.2d at 756. At

that point, the nonmoving party “may not rest on mere allegations

or demands in [the] pleadings but must provide specific facts

demonstrating a genuine issue for trial.” Rocky Mountain Expl., Inc.

v. Davis Graham & Stubbs LLP, 2018 CO 54, ¶ 27. If the

nonmoving party fails to meet this burden, entry of summary

judgment in favor of the moving party is proper. Stalder v. Colo.

Mesa Univ., 2024 COA 29, ¶ 19.

2. Summary Judgment Order

a. Bruce’s Affidavit

¶ 28 We agree with Bruce that he filed an affidavit in opposition to

the joint motion. But we do not agree that the district court’s

misstatement in this regard requires reversal.

¶ 29 As noted, Bruce filed two late responses to the joint motion.

Both were titled the same — “Plaintiff’s Interim Answer to Joint

Motion for Summary Judgment” — and were styled with

17
“AFFIDAVIT” at the beginning.9 While unorthodox in form, these

filings were effectively offered as verified filings. Cf. People v.

Anderson, 828 P.2d 228, 231 (Colo. 1992) (recognizing that a

verified pleading may suffice for an affidavit). Nevertheless, because

the first version filed was undated, unsigned, and unnotarized, the

court did not err by declining to treat it as an affidavit. And given

that the second one was filed mere hours before the district court

issued its ruling, it is not clear whether the court saw the signed

and notarized version.10

¶ 30 Moreover, the district court did not grant summary judgment

because Bruce failed to file an affidavit. Rather, the court ruled

against Bruce because he failed to satisfy his burden of

demonstrating a triable issue of fact once the burden to do so

shifted to him. Indeed, the district court observed that even if it

9 Bruce did not explain what about the response was “interim.”
10 Bruce mentions another affidavit, but that was filed as a motion

to reconsider the order granting summary judgment. Obviously,
the court could not have erred by not considering an affidavit that
had not yet been filed. And, in any event, affidavits filed in a
motion to reconsider after summary judgment has been granted
cannot be used to create a triable issue of fact. Graven v. Vail
Assocs., Inc., 888 P.2d 310, 316 (Colo. App. 1994), rev’d on other
grounds, 909 P.2d 514 (Colo. 1995).

18
were to treat Bruce’s “interim answer” as an affidavit, the filing did

not establish a triable issue of fact.

¶ 31 Because the trial court considered, in the alternative, the

representations in Bruce’s response to the summary judgment as if

they had been presented in an affidavit, the error in not considering

the filing to be an affidavit was harmless. See In re Mendy

Brockman Disability Tr., 2022 COA 75, ¶ 45 (finding any procedural

error committed by the court was harmless because it reached the

correct outcome).

b. Lack of Affidavits from Gaylord/Marriott or CCU

¶ 32 To the extent Bruce contends the joint motion should have

been denied because Gaylord/Marriott and CCU failed to file

supporting affidavits, we disagree.

¶ 33 A motion for summary judgment may be filed “with or without

supporting affidavits.” C.R.C.P. 56(a). Affidavits are not necessary

if the movant satisfies its burden of demonstrating a lack of triable

issue of fact through other means, including the pleadings

themselves or materials obtained during discovery. C.R.C.P. 56(c).

19
¶ 34 Because Gaylord/Marriott and CCU presented proper

materials under C.R.C.P. 56, their lack of affidavits was not fatal to

their joint motion for summary judgment.

c. Video Recording

¶ 35 We now turn to the heart of this appeal: Did the district court

err by considering the video submitted with the joint motion to be

dispositive, or should it have considered, as Bruce argues, that

other videos would show a different depiction of the “distances,

angles, and degree of lighting”? We conclude it did not.

¶ 36 As noted, Gaylord/Marriott and CCU submitted as Exhibit D

to the joint motion a video recording they had received in discovery

from one of the other defendants. The district court explicitly relied

on this video recording in granting the joint motion.

¶ 37 After Bruce filed his opening brief on appeal, Gaylord/Marriott

and CCU moved to supplement the record with Exhibit D, which

this court granted. In his reply brief, Bruce asserts that he “never

saw a copy of the clip sent by the trial court.” That is his own fault.

The appellate record was available for him to review had he chosen

to do so. In any event, he clearly saw the video during the briefing

20
on summary judgment, as he commented on what it depicts in his

“interim answer.”

¶ 38 He also complains that this court “did not give the parties time

to review clips before ending regular briefing time,” and that he

“waited for the new briefing schedule, but it never came.” But

Bruce never requested additional time to file the reply brief.11

¶ 39 Nor did Bruce move to supplement the record under

C.A.R. 10(f)(2). Instead, he attempted to file attachments with his

reply brief, including at least one additional video recording that he

described as depicting the walkway in front of the stage as being

very dark. However, those attachments were stricken because that

is not the proper way to supplement the appellate record.

¶ 40 Moreover, we could not have supplemented the record with

these materials even if he had filed such a request. Bruce did not

provide the district court with the materials in his response to the

11 In his reply brief, Bruce said he “d[id] not object to one or both

defendants filing a supplemental brief that argue[d] any video clip
or other ‘facts,’” provided he was given the opportunity to file a
reply. It is unclear why Gaylord/Marriott or CCU would need to
supplement the argument they just filed. To the extent Bruce
intended this statement to be a request for more time to file a reply
brief, that would make little sense, since the request was contained
in the reply brief itself.

21
joint motion. Before the district court entered summary judgment,

Bruce’s only mention of the existence of other possible video

evidence was an assertion in his “interim answer” that he would

present at trial “a VIDEO of the actual fall.” But he did not include

any such video in his summary judgment briefing. We may not

consider any material that was not before the trial court. In re

Edilson, 637 P.2d 362, 364-65 (Colo. 1981) (declining to consider

materials attached to appellate pleadings that were not in the

appellate record); C.A.R. 10(a)(1) (providing that the record on

appeal consists of all materials “filed in the trial court case”).

¶ 41 The material before the trial court included the following. In

the third amended complaint, Bruce alleged that he “tripped over

an object or objects which were lying on the floor in the walkway”

and that “[t]he lighting in the walkway in front of the stage was

inadequate for patrons to safely walk.” In his sworn “interim

answer,” he averred that he “tripped over a tangle of black wires on

an [sic] darkened floor with poor lighting.” He further argued that

the various defendants had not disclosed any expert to testify about

the proper placement of monitors. But, significantly, Bruce — as

the party with the ultimate burden of proving liability at trial — did

22
not offer any expert either and, in fact, offered no evidence other

than his conclusory allegation that the placement of the wires was

dangerous.

¶ 42 Countering that, the district court had before it a video

recording clearly depicting a dimly, though nevertheless adequately

lit, area. The video clearly shows Bruce tripping not over any cords

or wires but over a plainly visible thigh-high monitor. Nothing in

the video depicts anything that could be considered a dangerous

condition. And, again, Bruce presented no evidence to the district

court that it was. Instead, he insisted he would testify at trial and

that was enough. But it is not enough when the only video

evidence before the court conclusively belied his proposed

testimony. See Andersen v. Lindenbaum, 160 P.3d 237, 239 (Colo.

2007) (“To avoid summary judgment, the evidence presented in

opposition to such a motion must therefore be sufficient to

demonstrate that a reasonable jury could return a verdict for the

non-moving party.”).

¶ 43 Under these circumstances, we, like the district court,

conclude that Bruce did not satisfy his burden to bring forward

sufficient evidence of the existence of a dangerous condition.

23
Accordingly, the district court did not err by granting summary

judgment in favor of Gaylord/Marriott and CCU.

V. Bruce’s Remaining Contentions

¶ 44 In light of our conclusion that Gaylord/Marriott and CCU were

entitled to summary judgment, we need not belabor Bruce’s

remaining contentions. Even if the court had continued the trial

date as he requested, it would not have changed the outcome of the

joint motion.12 Similarly, reopening discovery related to injuries

suffered during a later fall and whether those injuries were related

to Bruce’s tripping over the monitor would have no impact on

whether Bruce had presented any evidence of a dangerous

condition. In essence, the propriety of the summary judgment

moots Bruce’s other contentions.

VI. Attorney Fees

¶ 45 Gaylord/Marriott requests attorney fees under C.A.R. 38.

CCU does not request fees.

¶ 46 An appellate court may award attorney fees as a sanction for

noncompliant briefing. C.A.R. 38(a). It may also award attorney

12 Bruce does not argue that he needed additional time to retain

counsel in order to better defend against the joint motion itself.

24
fees if it determines an appeal is frivolous. C.A.R. 38(b). “A claim is

frivolous if the proponent has no rational argument to support it

based on evidence or the law.” Black v. Black, 2020 COA 64M,

¶ 133 (quoting Zivian v. Brooke-Hitching, 28 P.3d 970, 974 (Colo.

App. 2001)).

¶ 47 A court may award fees against a pro se party only if it

determines that the party “clearly knew or reasonably should have

known that [his] action or defense, or any part [thereof], was

substantially frivolous.” § 13-17-102(6), C.R.S. 2025. An appeal

can be frivolous in two ways:

First, where an appeal is taken in a case in
which “the judgment by the tribunal below was
so plainly correct and the legal authority
contrary to appellant’s position so clear that
there is really no appealable issue,” the appeal
is held to be “frivolous as filed.” Second, even
in cases in which genuinely appealable issues
may exist, so that the taking of an appeal is
not frivolous, the appellant’s misconduct in
arguing the appeal may be such as to justify
holding the appeal to be “frivolous as argued.”

Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006)

(emphasis omitted) (quoting Dungaree Realty, Inc. v. United States,

30 F.3d 122, 124 (Fed. Cir. 1994)).

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¶ 48 We conclude that this appeal was frivolous as argued. And we

conclude that Bruce knew or should have known that it was. A

division of this court previously warned Bruce that noncompliance

with the appellate rules could result in sanctions. Bruce v. City of

Colorado Springs, 252 P.3d 30, 32 (Colo. App. 2010). And in this

case, Gaylord/Marriott’s answer brief pointed out that Bruce’s

opening brief failed to comply with the appellate rules in that it

lacked any citation to the record or legal authority supporting his

arguments. Yet, in his reply brief, he again failed to cite either the

record, any statute, or any case law. In fact, Bruce has never

offered any legally based argument against the court’s summary

judgment order. Thus, an award of fees is appropriate.

¶ 49 Because the district court is better suited to conduct any

necessary evidentiary proceedings related to determining the

reasonableness and necessity of the attorney fees sought, we

exercise our discretion under C.A.R. 39.1 and remand this issue to

the district court to determine and award Gaylord/Marriott its

reasonable appellate attorney fees. See Cronk v. Bowers, 2023 COA

68M, ¶ 36.

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VII. Disposition

¶ 50 The judgment is affirmed, and the case is remanded to the

district court to assess a reasonable attorney fees award.

JUDGE LUM and JUDGE GRAHAM concur.

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