Vincent Damon Ditirro v. Matthew J. Sando

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
August 18, 2022

2022COA94

No. 21CA0739, Ditirro v. Sando — Causes of Action — Civil
Action for Deprivation of Rights — Peace Officers —
Indemnification by Peace Officer’s Employer

A division of the court of appeals considers whether Colorado’s

statute that authorizes civil actions against a “peace officer” who

subjects another person to the deprivation of individual rights,

§ 13-21-131, C.R.S. 2021, permits a cause of action against the

employer of a peace officer. The division holds that, under the facts

of this case, the statute does not allow a plaintiff to file a direct

action against the employer of a peace officer.
COLORADO COURT OF APPEALS 2022COA94

Court of Appeals No. 21CA0739
Adams County District Court No. 20CV31045
Honorable Jeffrey Smith, Judge

Vincent Damon Ditirro,

Plaintiff-Appellant,

v.

Matthew J. Sando, Caleb Simon, Colorado State Patrol, Commerce City Police
Department, and Adams County Sheriff’s Department,

Defendants-Appellees.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

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

Announced August 18, 2022

Colorado Christian Defense Counsel, LLC, Jean Pirzadeh, Denver, Colorado, for
Plaintiff-Appellant

Philip J. Weiser, Attorney General, Allison R. Ailer, Senior Assistant Attorney
General, Dmitry B. Vilner, Assistant Attorney General, Denver, Colorado, for
Defendants-Appellees Matthew J. Sando, Caleb Simon, and Colorado State
Patrol

Kissinger & Fellman, P.C., Jonathan M. Abramson, Yulia Nikolaevskaya,
Denver, Colorado, for Defendant-Appellee Commerce City Police Department

Heidi M. Miller, County Attorney, Michael A. Sink, Assistant County Attorney,
Brighton, Colorado, for Defendant-Appellee Adams County Sheriff’s Office
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 In 2020, the Colorado General Assembly created a new cause

of action against “peace officers” for violation of a plaintiff’s civil

rights. Section 13-21-131(1), C.R.S. 2021, allows a plaintiff to sue

a peace officer who, “under color of law, subject[ed] or caus[ed] [the

plaintiff] to be subjected, including failing to intervene,” to the

deprivation of an individual right that “create[s] binding obligations

on government actors secured by the bill of rights” embodied in the

Colorado Constitution.

¶2 The statute further provides that, under certain

circumstances, a peace officer found liable under section

13-21-131(1) is entitled to obtain indemnification from the peace

officer’s employer. Section 13-21-131(4)(a) states that “a peace

officer’s employer shall indemnify its peace officers for any liability

incurred by the peace officer and for any judgment or settlement

entered against the peace officer for claims arising pursuant to this

section,” except where “the peace officer’s employer determines on a

case-by-case basis that the officer did not act upon a good faith and

reasonable belief that the action was lawful.”

¶3 The statute is silent, however, on whether a plaintiff has the

right to assert a direct claim against the employer of a peace officer

1
who violated one of the plaintiff’s rights protected under the state

bill of rights.

¶4 We hold that, under the facts of this case, section 13-21-131

does not allow a plaintiff to file a direct action against the employer

of a peace officer. For this reason, we affirm the district court’s

judgment dismissing the claims of plaintiff, Vincent Damon Ditirro,

against defendants Adams County Sheriff’s Office (Adams County)

and Commerce City Police Department (Commerce City) under

C.R.C.P. 12(b)(5) for failure to state claims upon which relief can be

granted. (Ditirro’s court filings, including his filings in this court,

refer to “Adams County Sheriff’s Department.” The correct name of

that entity is “Adams County Sheriff’s Office.” We use the entity’s

correct name in this opinion.)

¶5 In addition, we reject Ditirro’s other arguments and award

appellate attorney fees to the four original defendants that

requested such a fee award: Commerce City, Colorado State Patrol

(CSP) troopers Matthew J. Sando and Caleb Simon, and CSP. We

also grant Commerce City’s request for an award of its costs

incurred in this appeal.

2
I. Background Facts and Procedural History

¶6 Because the district court dismissed Ditirro’s action under

C.R.C.P. 12(b)(5), we accept as true the following facts pleaded in

his first amended complaint. See Norton v. Rocky Mountain Planned

Parenthood, Inc., 2018 CO 3, ¶ 7, 409 P.3d 331, 334.

¶7 On August 7, 2018, Sando and Simon, troopers with the CSP,

stopped a car that Ditirro was driving on suspicion that he was

under the influence of alcohol. Following a roadside sobriety test,

Sando and Simon arrested Ditirro. During the arrest, Sando and

Simon assaulted Ditirro, causing him physical and mental injuries.

¶8 On August 6, 2020, Ditirro filed a complaint in the Adams

County District Court against, as relevant to this appeal, Adams

County, Commerce City, Sando, Simon, CSP, and “Doe

Defendants.” Ditirro pleaded nine claims — four under the federal

statute that authorizes civil actions for civil rights violations,

42 U.S.C. § 1983, and five under section 13-21-131.

¶9 Commerce City removed the case to the United States District

Court for the District of Colorado (the federal court) on the grounds

that the inclusion of the § 1983 claims in Ditirro’s complaint

allowed the federal court to exercise subject matter jurisdiction over

3
the entire case. Commerce City then filed a motion to dismiss

Ditirro’s claims against it for failure to state a claim upon which

relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

¶ 10 While Commerce City’s motion was pending in the federal

court, Ditirro filed a first amended complaint that did not include

the § 1983 claims. The absence of those claims from the amended

complaint deprived the federal court of jurisdiction over the case.

For this reason, after Ditirro amended his complaint, the federal

court remanded the case to the Adams County District Court.

Ditirro refiled his first amended complaint in the Adams County

District Court on January 25, 2021.

¶ 11 In his first amended complaint, Ditirro asserted the five

section 13-21-131 claims he had asserted in his original complaint.

He premised four of those claims on section 13-21-131(1) and one

on the indemnification provision in section 13-21-131(4).

¶ 12 Although Ditirro pleaded that Sando and Simon were “troopers

with the [CSP],” he also alleged that “[e]ach Defendant and Doe

Defendant, Individual Defendant, or Agency Defendant were and are

at all times the agent and principal of each and every Defendant

whether Individual, Doe or Agency Defendant.” He specifically

4
asserted that Sando and Simon “were at the time [of Ditirro’s arrest]

and at all material times the agents of all other Defendants,

including the Doe Defendants and therefore all the Defendants

named herein,” and that all defendants “failed to supervise and

monitor Sando and Simon.” Presumably, “all defendants” included

Adams County and Commerce City.

¶ 13 Adams County and Commerce City moved to dismiss Ditirro’s

claims against them for failure to state claims upon which relief can

be granted under C.R.C.P. 12(b)(5). In his response to those

motions, Ditirro asked the court to grant him leave to amend his

complaint again.

¶ 14 The district court granted Adams County’s and Commerce

City’s dismissal motions on February 26, 2021. In the orders

granting those motions, the court concluded that section 13-21-131

does not authorize a direct cause of action against a peace officer’s

employer. (Alternatively, the court determined that Ditirro’s

allegation that Adams County and Commerce City employed Sando

and Simon did not “pass the plausibility test,” citing Warne v. Hall,

2016 CO 50, ¶ 27, 373 P.3d 588, 596.) The court also denied

Ditirro’s requests for leave to amend his first amended complaint

5
because Ditirro had already amended his complaint once, and the

court concluded that any further efforts to amend Ditirro’s claims

against Adams County and Commerce City would be futile.

¶ 15 Ditirro then filed a separate motion for leave to amend his first

amended complaint. In the motion, he explained his intention to

reassert the same § 1983 claims that he had voluntarily dismissed

when the case was pending in the federal court. The district court

denied Ditirro’s motion on April 23, 2021, and he filed a motion for

reconsideration on May 1, 2021.

¶ 16 Between the filing of Ditirro’s motion for leave to amend and

the court’s ruling on his motion for reconsideration, Ditirro served

Sando and CSP with his first amended complaint. Sando and CSP

responded by filing motions to dismiss under C.R.C.P. 12(b)(5). The

court granted Sando’s motion to dismiss on May 17, 2021,

reasoning that section 13-21-131 does not provide a cause of action

against a peace officer employed by the state.

¶ 17 On May 22, 2021, Ditirro filed a notice of appeal referencing

three orders: the district court’s February 26, 2021, order

dismissing Ditirro’s claims against Adams County and Commerce

City; the April 23, 2021, order denying his motion for leave to

6
amend the first amended complaint; and the May 17, 2021, order

denying his motion for reconsideration of the order denying his

motion for leave to amend. Ditirro’s notice of appeal did not refer to

the district court’s May 17, 2021, order dismissing his claims

against Sando.

¶ 18 At the time Ditirro filed his notice of appeal, the district court

had not ruled on CSP’s dismissal motion and Ditirro had not served

Simon. The court granted CSP’s motion to dismiss on July 8, 2021.

Ditirro served Simon after that date. Like the other defendants,

Simon filed a motion to dismiss under C.R.C.P. 12(b)(5). The court

granted Simon’s motion on August 17, 2021.

¶ 19 Ditirro did not appeal the court’s orders granting Sando’s,

CSP’s, and Simon’s respective dismissal motions, but, in his

opening brief, Ditirro asserted that the district court abused its

discretion by granting those motions. He further asserted that the

court abused its discretion by denying him leave to amend the first

amended complaint and by denying his motion for reconsideration.

¶ 20 In their answer briefs, Adams County, Commerce City, Sando,

Simon, and CSP contended that this court lacked subject matter

jurisdiction over the appeal for four reasons: (1) the three orders

7
referenced in the notice of appeal were interlocutory; (2) Ditirro did

not ask the district court to direct the entry of a final judgment as

to the three orders under C.R.C.P. 54(b); (3) Ditirro’s notice of

appeal did not refer to the orders dismissing his claims against

Sando, Simon, and CSP, and this court lacks jurisdiction to

consider those orders; and (4) Ditirro did not file an amended notice

of appeal.

¶ 21 On June 24, 2022, a division of this court entered an order

dismissing the portions of Ditirro’s appeal challenging the district

court’s orders dismissing, for lack of jurisdiction, his claims against

Sando, Simon, and CSP. In the June 24, 2022, order, the division

deferred consideration of Sando’s, Simon’s, and CSP’s requests for

their appellate attorney fees until this division adjudicated

Commerce City’s request for appellate attorney fees. (Adams

County did not request an award of its appellate attorney fees.)

¶ 22 In this opinion, we limit our review to whether the district

court erred by granting Adams County’s and Commerce City’s

motions to dismiss and abused its discretion by denying Ditirro

leave to amend his first amended complaint and Ditirro’s motion for

reconsideration. We also consider Commerce City’s, Sando’s,

8
Simon’s, and CSP’s requests for awards of their appellate attorney

fees, as well as Commerce City’s request for an award of its costs

incurred in this appeal.

II. Analysis

A. Jurisdiction

¶ 23 Because “[a]n appellate court must always be satisfied that it

has jurisdiction to hear an appeal,” Chavez v. Chavez, 2020 COA

70, ¶ 22, 465 P.3d 133, 139, we first consider Adams County and

Commerce City’s contention that this court lacks jurisdiction over

Ditirro’s appeal of the orders granting their motions to dismiss

because his notice of appeal was premature.

¶ 24 “Generally speaking, the court of appeals has jurisdiction only

over appeals from final judgments.” Allison v. Engel, 2017 COA 43,

¶ 23, 395 P.3d 1217, 1222. A final judgment generally is one that

“resolve[s] all claims for relief in a case.” E. Cherry Creek Valley

Water & Sanitation Dist. v. Greeley Irrigation Co., 2015 CO 30M,

¶ 11, 348 P.3d 434, 439; see Harding Glass Co. v. Jones, 640 P.2d

1123, 1125 n.2 (Colo. 1982) (“Absent an applicable exception

provided by rule or statute, an appeal lies only from a final

judgment[,] ‘which ends the particular action in which it is entered,

9
leaving nothing further for the court pronouncing it to do in order to

completely determine the rights of the parties involved in the

proceeding.’” (quoting D.H. v. People, 192 Colo. 542, 544, 561 P.2d

5, 6 (1977))).

¶ 25 Ditirro’s notice of appeal was premature because the three

orders it referenced did not constitute a final judgment. The three

orders did not become final until the district court resolved all

claims against the defendants that were parties when Ditirro filed

his notice of appeal. See Rea v. Corr. Corp. of Am., 2012 COA 11,

¶ 13, 272 P.3d 1143, 1146 (“We conclude that named but unserved

defendants are not litigants for purposes of determining the

appealability of an order under the final judgment rule.”). The final

judgment was entered when the court granted CSP’s motion to

dismiss on July 8, 2021. The three orders became final at that

time, even though the district court had not yet granted Simon’s

motion to dismiss, because Ditirro had not yet served Simon. See

Musick v. Woznicki, 136 P.3d 244, 246 (Colo. 2006). When the

court entered its order dismissing Ditirro’s claims against CSP, it

resolved all of his claims against all of the defendants who had been

served.

10
¶ 26 We further conclude that the district court had jurisdiction to

grant CSP’s motion to dismiss after Ditirro filed his notice of appeal.

¶ 27 Although “[g]enerally, the filing of a notice of appeal shifts

jurisdiction to the appellate court, thus divesting the trial court of

jurisdiction to conduct further substantive action related to the

judgment on appeal,” a trial court is not divested of jurisdiction

“when a party files a premature notice of appeal of a nonfinal

judgment.” Id.

¶ 28 Here, because Ditirro’s notice of appeal was premature, the

district court retained jurisdiction to grant CSP’s motion to dismiss

on July 8, 2021. See id. at 246-47. The three orders referenced in

the notice of appeal became final upon the entry of the July 8,

2021, order, which cured the jurisdictional defect in Ditirro’s notice

of appeal. See id. (holding that, if a party files a premature notice of

appeal, an appellate court may exercise jurisdiction over the appeal

once the jurisdictional defect has been cured by entry of a final

judgment); Kidwell v. K-Mart Corp., 942 P.2d 1280, 1281-82 (Colo.

App. 1996) (holding that this court may address the merits of an

appeal if the other parties were not prejudiced by the early filing of

an appellant’s notice of appeal).

11
¶ 29 Because the jurisdictional defect was cured, and Adams

County and Commerce City allege no prejudice from Ditirro’s

premature filing of his notice of appeal, we conclude that we have

jurisdiction to resolve those portions of the appeal not dismissed in

our June 24, 2022, order.

B. Adams County’s and Commerce City’s Motions to Dismiss

¶ 30 Ditirro contends that the district court erred by granting

Adams County’s and Commerce City’s motions to dismiss. He

maintains that section 13-21-131(4) provides a cause of action

against law enforcement entities, and that the district court erred

by ruling otherwise. We disagree.

1. Standard of Review

¶ 31 “We review a C.R.C.P. 12(b)(5) motion to dismiss de novo and

apply the same standards as the trial court.” Norton, ¶ 7, 409 P.3d

at 334. “We accept all factual allegations in the complaint as true,

viewing them in the light most favorable to the plaintiff, but we are

not required to accept bare legal conclusions as true.” Id. “We will

uphold the grant of a C.R.C.P. 12(b)(5) motion only when the

plaintiff’s factual allegations do not, as a matter of law, support the

claim for relief.” Id.

12
¶ 32 We also review questions of statutory interpretation de novo.

Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935

(Colo. 2010). “In determining the meaning of a statute, our central

task is to ascertain and give effect to the intent of the General

Assembly.” Id. “We begin by looking to the express language of the

statute, construing words and phrases according to grammar and

common usage.” Id. “If, after review of the statute’s language, we

conclude that the statute is unambiguous and the intent appears

with reasonable certainty, our analysis is complete.” Id.

2. Applicable Law

¶ 33 Section 13-21-131 authorizes private civil rights actions

against “peace officer[s].” As relevant to this case, a “peace officer”

is “any person employed by a political subdivision of the state

required to be certified by the [Peace Officers Standards and

Training] board.” § 24-31-901(3), C.R.S. 2021.

3. The District Court Did Not Err in
Interpreting Section 13-21-131

¶ 34 The district court granted Adams County’s and Commerce

City’s motions to dismiss on the grounds that “[t]he plain and

unambiguous language of [section] 13-21-131(1) establishes a

13
cause of action against an individual peace officer. It does not

establish a cause of action against the peace officer’s employer such

as [Adams County] or [Commerce City].”

¶ 35 Section 13-21-131(1) provides that a “peace officer” is liable to

the injured party for “the deprivation of any individual rights.” It

does not mention any other individuals or entities that can be held

liable under the statute. Thus, we conclude, based on the plain

language of the statute, that it grants plaintiffs who are similarly

situated to Ditirro the right to assert the specified civil rights

actions only against individual peace officers, and not against the

peace officers’ employers.

¶ 36 The indemnification language in section 13-21-131 makes it

clear that, under the facts of this case, a third party such as Ditirro

may not assert a direct claim against the employer of a peace

officer. See § 13-21-131(4)(a) (stating that “a peace officer’s

employer shall indemnify its peace officers” for violations of the

section, except when the employer “determines on a case-by-case

basis that the officer did not act upon a good faith and reasonable

belief that the action was lawful”). We therefore agree with the

district court that

14
[w]hile a plaintiff may be the beneficiary of
indemnification by the municipality if the
peace officer does not have the funds to pay
the judgment, it does not necessarily follow
that [Ditirro] may sue a peace officer’s
employer to enforce the peace officer’s right to
indemnification.

¶ 37 As applied to the facts of this case, the indemnification

language in section 13-21-131(4) is analogous to the

indemnification language in an insurance policy analyzed in All

Around Transport, Inc. v. Continental Western Insurance Co.,

931 P.2d 552, 556 (Colo. App. 1996). In that case, the division

concluded that

[a]n injured claimant normally cannot
maintain a direct action on the liability policy
protecting the tort-feasor . . . because the
parties to such an insurance contract do not
intend to benefit the general public; their
intent is to benefit the named insured by
protecting him or her against future liability.

Id.

¶ 38 The same logic applies to Ditirro’s claims against Adams

County and Commerce City. While section 13-21-131(4) allows a

peace officer to obtain indemnification from the peace officer’s

employer under certain circumstances, it only provides a remedy for

peace officers, at least before the peace officer has incurred any

15
liability, or any judgment or settlement has been entered against

the peace officer, under the statute. (Because the claims that

Ditirro litigated in the Adams County District Court following the

remand by the federal court solely arose under state law, we do not

consider whether our interpretation of section 13-21-131(4) equally

applies to cases filed under 42 U.S.C. § 1983.) We offer no opinion

on whether a plaintiff may bring an action against the employer of a

peace officer after the peace officer has incurred liability under

section 13-21-131(1) or after “any judgment or settlement [is]

entered against the peace officer” for a claim arising under the

statute. § 13-21-131(4)(a).

¶ 39 Accordingly, we conclude that the district court did not err by

dismissing Ditirro’s claims against Adams County and Commerce

City. In light of our analysis, we do not consider the merits of

Ditirro’s claims.

C. Ditirro’s Motion to Amend His First Amended Complaint

¶ 40 Ditirro next asserts that the district court abused its

discretion by denying his motion to amend his first amended

complaint to reassert the § 1983 claims that he voluntarily

16
dismissed while the case was pending in federal court. We

disagree.

¶ 41 Because Ditirro had already amended his complaint, he did

not have the right to amend it a second time without leave of court

or the adverse parties’ written consent. See C.R.C.P. 15(a). The

rules of civil procedure do not grant a plaintiff a second opportunity

to amend the complaint as a matter of right in state court if the

plaintiff has previously amended it. See Kennie v. Nat. Res. Dep’t,

889 N.E.2d 936, 945 (Mass. 2008) (holding that the trial court did

not err by denying the plaintiffs’ motion for leave to amend their

complaint to reassert the same federal claims that the plaintiffs had

included in their original complaint and then “deleted” after the

defendants removed the case to federal court).

¶ 42 Because Ditirro did not have the right to amend his first

amended complaint, the district court had discretion to grant or

deny Ditirro’s motion for leave to amend. See Benton v. Adams,

56 P.3d 81, 85 (Colo. 2002) (“Granting leave to amend is within the

sound discretion of the trial court; our review is for the purpose of

determining whether or not the trial court abused its discretion in

ruling on the motion to amend.”). The court denied Ditirro’s motion

17
after finding that his “change of position on his federal-law claims

can be viewed as dilatory at best, possible bad faith at worst.”

¶ 43 We perceive no abuse of discretion by the court. Ditirro

voluntarily dismissed his § 1983 claims after Commerce City

removed the case to the federal court, and filed a motion to remand

the case to the state court. While “[a] plaintiff is the master of his

complaint,” Suydam v. LFI Fort Pierce, Inc., 2020 COA 144M, ¶ 48,

490 P.3d 930, 939 (quoting Gadeco, LLC v. Grynberg, 2018 CO 22,

¶ 17, 415 P.3d 323, 329), and thus has the right to choose which

claims he or she seeks to pursue in which court, Ditirro’s actions

suggest that he voluntarily dismissed his § 1983 claims to defeat

the federal court’s jurisdiction and to force that court to remand his

case to the Adams County District Court.

¶ 44 The record therefore supports the district court’s finding that

Ditirro’s attempt to reassert his § 1983 claims in state court

following the remand was “dilatory at best, possible bad faith at

worst.” See Benton, 56 P.3d at 86 (“Grounds for trial court denial of

a motion to amend pleadings include undue delay, bad faith,

dilatory motive, repeated failure to cure deficiencies in the pleadings

18
via prior amendments, undue prejudice to the opposing party, and

futility of amendment . . . .”).

D. Ditirro’s Motion for Reconsideration

¶ 45 Ditirro next contends that the district court abused its

discretion by denying his motion for reconsideration of its order

denying his motion for leave to amend his first amended complaint.

We disagree.

¶ 46 Because the court did not abuse its discretion by denying

Ditirro’s motion for leave to amend, it likewise did not abuse its

discretion by denying Ditirro’s motion for reconsideration. See

Hytken v. Wake, 68 P.3d 508, 512-13 (Colo. App. 2002) (holding

that, because the trial court properly analyzed an issue, it did not

abuse its discretion by denying a motion for reconsideration of the

issue).

E. Appellate Attorney Fees

¶ 47 After granting Commerce City’s, Sando’s, Simon’s, and CSP’s

motions to dismiss, the district court granted their requests for

awards of attorney fees pursuant to section 13-17-201, C.R.S.

2021. At the time, that statute provided that

19
[i]n all actions brought as a result of a death or
an injury to person or property occasioned by
the tort of any other persons, where any such
action is dismissed on motion of the defendant
prior to trial under rule 12(b) of the Colorado
rules of civil procedure, such defendant shall
have judgment for his reasonable attorney fees
in defending the action.

§ 13-17-201. “Under this section, an award of attorney fees is

mandatory when a trial court dismisses an action under C.R.C.P.

12(b).” Wark v. Bd. of Cnty. Comm’rs, 47 P.3d 711, 717 (Colo. App.

2002). Notably, under that version of the statute, a plaintiff and the

plaintiff’s lawyer are equally liable for attorney fees awards, even

though the lawyer may have been solely responsible for the pleading

deficiencies that led to the dismissal of the action. Moreover, “[a]

party who successfully defends such a dismissal order is also

entitled to recover reasonable attorney fees incurred on appeal.” Id.

¶ 48 This case falls squarely within the version of section

13-17-201 in effect at the time the parties filed their appellate

briefs. Ditirro alleged that the defendants’ torts had, directly or

indirectly, resulted in injuries to him, and the district court

dismissed Ditirro’s action under C.R.C.P. 12(b).

20
¶ 49 In light of our affirmance of the district court’s order

dismissing Ditirro’s claims against Commerce City, we are required

to grant Commerce City’s request for appellate attorney fees under

section 13-17-201, as well as its request for appellate costs under

C.A.R. 39(a)(2). And, given our conclusion in the June 24, 2022,

order that we lack jurisdiction over Ditirro’s appeal of the orders

dismissing his claims against Sando, Simon, and CSP, we hold that

those defendants “successfully defend[ed] . . . a dismissal order”

and are therefore also entitled to an award of their respective

appellate attorney fees under section 13-17-201. Wark, 47 P.3d at

717. (Because Sando, Simon, and CSP did not request awards of

their appellate costs, we do not award such costs to them.)

¶ 50 We acknowledge that, in 2022, the General Assembly carved

out an exception to section 13-17-201 for

any claim that is a good faith, non-frivolous
claim filed for the express purpose of
extending, limiting, modifying, or reversing
existing precedent, law, or regulation; or for
the express purpose of establishing the
meaning, lawfulness, or constitutionality of a
law, regulation, or United States or state
constitutional right and the meaning,
lawfulness, or constitutionality has not been
determined by the Colorado supreme court, or
for cases presenting questions under the

21
United States constitution, to the Supreme
Court of the United States.

Ch. 445, sec. 1, § 13-17-201(2), 2022 Colo. Sess. Laws

3131. But the exception only applies where

the party that brought the dismissed claim . . .
pleaded . . . that the dismissed claim was
made for one of the express purposes stated in
this subsection (2) and identified the
precedent, law, or regulation the party seeks to
extend, limit, modify, or reverse, or whether
the issue to be decided is a matter of first
impression.

Id. at 3131-32. The amendment took effect on June 8, 2022, and

therefore does not apply to Ditirro’s claims.

¶ 51 Even if the amendment applied to this case, it would not

benefit Ditirro because his lawyer did not plead that the dismissed

claims were “made for one of the express purposes” stated in the

new section 13-17-201(2). (In the opening brief, Ditirro’s counsel

notes that, “due to the newness of [section 13-21-131] no case

authority exists on the liability of entities under the statute.” No

such language appears in Ditirro’s first amended complaint,

however.)

22
III. Conclusion

¶ 52 The judgment in favor of Adams County and Commerce City is

affirmed. The orders denying Ditirro’s motion for leave to amend

his first amended complaint and denying his motion for

reconsideration are also affirmed. The case is remanded to the

district court for a determination of the amount of reasonable

appellate attorney fees and costs to be awarded, as explained above.

JUDGE FOX and JUDGE ROTHENBERG concur.

23