Vinson v. Daniel McCracken

24CA0519 Vinson v Daniel McCracken 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0519
Pueblo County District Court No. 23CV30457
Honorable Tayler M. Thomas, Judge

Elizabeth Vinson and Aaron Vinson,

Plaintiffs-Appellants,

v.

Lianna J. Daniel McCracken,

Defendant-Appellee.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE YUN
Kuhn and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 5, 2024

Naylor & Geisel, P.C., Teagan E. Boda, Pueblo, Colorado, for Plaintiffs-
Appellants

The Getchey Law Firm, P.C., Kyle A. Getchey, Colorado Springs, Colorado, for
Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this landlord-tenant dispute, the plaintiffs, Elizabeth

Vinson and Aaron Vinson (the tenants), appeal the district court’s

order dismissing two of their claims against Lianna J. Daniel

McCracken (the landlord) and granting summary judgment against

them on a third. We affirm the court’s summary judgment on their

retaliation claim. But we reverse its ruling dismissing their claims

for breach of contract and breach of the warranty of habitability,

and we remand the case to the district court for further proceedings

on those claims.

I. Background

¶2 The tenants entered into a lease to rent a home (the property)

from the landlord for one year, from August 1, 2021, to July 31,

2022. Among other provisions, the lease stated that the landlord

would provide appliances including a dishwasher and microwave

and that, if the property were “deemed uninhabitable due to

damage beyond reasonable repair,” the tenants could terminate the

lease.

¶3 According to the complaint and the more definite statement

requested and filed under C.R.C.P. 12(e), the tenants discovered

after moving in that the landlord had not provided a microwave or

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dishwasher. The tenants also found multiple unsanitary conditions

at the property, including a broken pipe under the kitchen sink

draining into a moldy bucket, “a hole full of some sort of debris” in

the bathroom, garbage on the lawn, and a nonfunctional tub drain.

Although the tenants made repeated requests for repairs and

cleaning, the landlord did not respond to a majority of these

requests. Within a month of moving in, the tenants and their

children developed rashes, leading to multiple medical visits and

the eventual discovery that the property was infested with bed bugs.

The landlord hired a company to treat the infestation, but the

treatments were unsuccessful. When the landlord disputed the

need for additional treatments, even as the tenants continued to

find “live bugs in their beds,” the tenants reported the

uninhabitable condition of the property to the Pueblo Department of

Public Health and Environment (the Department). In May 2022, a

Department inspector confirmed the presence of bed bugs and

noted several other safety risks at the property, including broken

stairs and a smell of sewage coming from the bathroom sink.

¶4 The tenants decided to rent another home in June 2022 but

were delayed in moving out because their personal belongings first

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had to be treated to avoid spreading the bed bug infestation to their

new home. On August 10, 2022, ten days after the lease expired,

the landlord filed an eviction complaint against the tenants. A week

later, when the landlord failed to appear in eviction court, the

complaint was dismissed for failure to prosecute. The tenants

moved out on August 25, 2022.

¶5 A year later, the tenants filed suit against the landlord alleging

three claims: breach of contract, breach of the warranty of

habitability, and retaliation. The landlord moved for a more definite

statement under Rule 12(e), explaining that the complaint did not

make clear the “factual and legal basis” of the tenants’ claims. The

district court granted the landlord’s motion, and the tenants

provided a more definite statement. The landlord then moved to

dismiss the tenants’ breach of contract and warranty of habitability

claims under Rule 12(b)(5) and for summary judgment on the

tenants’ retaliation claim under C.R.C.P. 56. The district court

granted the landlord’s motions in their entirety.

¶6 The tenants now appeal.

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II. Analysis

¶7 The tenants contend that the district court erred by

(1) dismissing their breach of contract claim; (2) dismissing their

warranty of habitability claim; (3) granting summary judgment to

the landlord on their retaliation claim; (4) “treating the motion to

dismiss” the first two claims “the same as the motion for summary

judgment” on the third claim; and (5) granting the landlord’s

motions to dismiss and for summary judgment when the landlord

failed to confer with the tenants before filing. We address each

contention in turn.

A. Breach of Contract

¶8 The tenants contend that the district court erred by dismissing

their breach of contract claim under Rule 12(b)(5) for failure to state

a claim upon which relief can be granted. We agree.

1. Standard of Review

¶9 “We view with disfavor a C.R.C.P. 12(b)(5) motion to dismiss

for failure to state a claim.” Bly v. Story, 241 P.3d 529, 533 (Colo.

2010). We review such motions de novo and apply the same

standards as the trial court. Ditirro v. Sando, 2022 COA 94, ¶ 31.

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¶ 10 To survive a Rule 12(b)(5) motion to dismiss, “a complaint

must state a claim that is plausible on its face.” Potts v. Gaia

Child., LLC, 2024 COA 58, ¶ 15 (citing Warne v. Hall, 2016 CO 50,

¶ 24). “A complaint is plausible on its face if the plaintiff has

pleaded facts that permit a reasonable inference that the defendant

is liable for the alleged misconduct.” Id. The reviewing court must

accept all allegations in the complaint as true and view them in the

light most favorable to the plaintiff. 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.”

Ditirro, ¶ 31 (citation omitted).

2. Law and Discussion

¶ 11 To prevail on a breach of contract claim, a plaintiff must prove

“(1) the existence of a contract, (2) the plaintiff’s performance of the

contract or justification for nonperformance, (3) the defendant’s

failure to perform the contract, and (4) the plaintiff’s damages as a

result of the defendant’s failure to perform the contract. Univ. of

Denver v. Doe, 2024 CO 27, ¶ 46.

¶ 12 The district court found that the tenants’ “[c]omplaint and

[m]ore [d]efinite [s]tatement do not set forth a specific provision of

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their lease that [the landlord] allegedly breached, and for which they

incurred damages.” But in both their complaint and more definite

statement, the tenants alleged that the lease required the landlord

to provide them with a microwave and dishwasher. They alleged

that “[a] microwave was not provided” and that, when they bought

their own microwave, “faulty wiring in the home caused the

microwave to be destroyed,” necessitating their purchase of “a

second microwave and surge protector.” They further alleged that

the landlord did not provide a dishwasher “until several months

after [the tenants] had moved into the property.”

¶ 13 Additionally, they alleged that “the largest problem was the

cleanliness and upkeep of the property,” that the landlord “had a

duty . . . to provide habitable housing for [the] tenants,” and that

“[t]he condition of [the] property when the [tenants] moved in and

throughout their tenancy violated this duty.” Although they did not

refer to it by name, the lease contained a provision stating that

“[t]he Landlord shall be responsible for repairs to the interior and

exterior of the building.” In their more definite statement, the

tenants alleged that they “made repeated requests for repairs and

cleaning” and that the landlord “did not respond to a majority of

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these requests.” They further alleged damages resulting from the

condition of the property, including multiple medical visits (with

dates provided for eleven specific instances) and the cost of hiring

an exterminator to treat their personal belongings so that they

could move out.

¶ 14 Accordingly, contrary to the district court’s finding, we

conclude that the tenants adequately alleged a breach of the lease

and resulting damages.

¶ 15 The district court also found that the tenants “do not dispute”

that they missed one or more rent payments and that they thus “set

forth no facts to establish that they performed under the lease.”

But the second element of a breach of contract claim is the

plaintiff’s performance of the contract “or justification for

nonperformance.” Univ. of Denver, ¶ 46. As the district court itself

noted, “There is no question [that the tenants’] allegations of bed

bugs . . . and other issues of safety and uncleanliness raise

significant concerns about the habitability of the property.”

Because the lease contained a provision that gave the tenants the

right to terminate due to the uninhabitable condition of the

property, their nonperformance may have been justified. Therefore,

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contrary to the district court’s findings, the instances of

nonpayment are not necessarily fatal to their breach of contract

claim.

¶ 16 We thus conclude that, taking all the allegations in the

complaint as true and viewing them in the light most favorable to

the tenants, the tenants’ breach of contract claim was plausible on

its face. See Potts, ¶ 15. Accordingly, we reverse the district court’s

dismissal of this claim under Rule 12(b)(5).

B. Breach of the Warranty of Habitability

¶ 17 The tenants contend that the district court erred by dismissing

their warranty of habitability claim. We agree.

1. Standard of Review

¶ 18 As described above, we review a district court’s ruling on a

Rule 12(b)(5) motion to dismiss de novo, applying the same

standards as the district court. Ditirro, ¶ 31.

2. Law and Discussion

¶ 19 In her motion for a more definite statement, the landlord

explained that the complaint did not make clear whether the

warranty of habitability claim arose under the lease, under the

warranty of habitability statute, §§ 38-12-501 to -512, C.R.S.

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2021,1 or under the bed bugs in residential premises statute,

§§ 38-12-1001 to -1007, C.R.S. 2024. She further noted that the

tenants had not alleged “a date [they] provided notice” to the

landlord that the property was uninhabitable or a failure by the

landlord to address the uninhabitable condition within the

“statutorily prescribed timeline.” Accordingly, the landlord could

not discern the legal basis for the warranty of habitability claim and

could not prepare an answer.

¶ 20 In their more definite statement, the tenants clarified that they

were bringing the claim under the warranty of habitability statute.

They alleged that the landlord “indicated repeatedly that she

preferred phone calls over other communications” and that they

“informed [the landlord] of the uninhabitable condition of the

property on numerous occasions.” They did not indicate the dates

on which they provided notice or allege how long it took the

landlord to respond.

1 The warranty of habitability statute has been amended several

times. The 2021 version of the statute was in effect at the time of
the lease and the alleged breach of the warranty of habitability. We
therefore refer to the 2021 version throughout this opinion.

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¶ 21 Under the statute, an element of a breach of the warranty of

habitability is that “[t]he landlord has received reasonably complete

written or electronic notice of the [uninhabitable condition of the

property] and failed to commence remedial action by employing

reasonable efforts within” either twenty-four or ninety-six hours,

depending on the nature of the uninhabitable condition.

§ 38-12-503(2)(b), C.R.S. 2021. “A tenant who gives a landlord

electronic notice of a condition shall send such notice only to the

e-mail address, phone number, or electronic portal specified by the

landlord in the rental agreement for communications.”2

§ 38-12-503(2.3). “Electronic notice” means notice by electronic

mail or an electronic portal or management communications system

that is available to both a landlord and a tenant. § 38-12-502(4),

C.R.S. 2021.

¶ 22 The district court found that the tenants indicated they

communicated with the landlord via phone calls and failed to allege

they provided the landlord written or electronic notice, as required

under the statute. Thus,

2 The landlord provided an email address and phone number in the

lease.

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[w]ithout any facts to support sufficient
compliance with the statutory notice
requirements[,] the landlord cannot be found
to have breached the warranty of habitability.
Here, because [the tenants] have not
established sufficient notice under the
habitability statute, a mandatory element, the
claim for breach of warranty of habitability
fails the basic plausibility test.

¶ 23 We disagree with the district court’s analysis. Although the

landlord “indicated repeatedly that she preferred phone calls over

other communications,” it is not at all clear that the

communications took place only by phone call. Instead, in the

more definite statement, the tenants alleged that the landlord

communicated with them and others on several occasions by text

message or other electronic communication. More importantly,

they alleged that they “informed [the landlord] of the uninhabitable

condition of the property on numerous occasions”; that they “made

repeated requests for repairs and cleaning”; and that they gave the

landlord “proper notice under C.R.S. § 38-12-503(2)(b), which states

that notice can be either written or electronic, and [the] landlord

failed to commence remedial actions in the correct time period.”

Taking all of the tenants’ allegations as true and viewing them in

the light most favorable to them, see Potts, ¶ 15, we cannot say that

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their communications with the landlord took place only by phone

call.

¶ 24 We therefore conclude that the district court erred by

dismissing the tenants’ warranty of habitability claim under Rule

12(b)(5). The tenants did state a claim for breach of the warranty of

habitability under section 38-12-503 that was plausible on its face.

If the evidence later shows that the tenants did not give adequate

“written or electronic notice” of the uninhabitable condition of the

property, the landlord may file a motion for summary judgment.

But it was premature for the district court to conclude under Rule

12(b)(5) that no such notice was given.

C. Retaliation

¶ 25 The tenants contend that the district court erred by granting

summary judgment to the landlord on their retaliation claim. We

disagree.

1. Standard of Review

¶ 26 We review a district court’s order granting summary judgment

de novo. Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 19.

“Summary judgment is appropriate only if ‘the pleadings,

depositions, answers to interrogatories, and admissions on file,

12
together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.’” Id. (quoting C.R.C.P. 56(c)).

¶ 27 “The moving party bears the initial burden of showing no

genuine issue of material fact exists; the burden then shifts to the

nonmoving party to establish a triable issue of fact.” Id. at ¶ 20. All

doubts must be resolved against the moving party, and the

nonmoving party “must receive the benefit of all favorable

inferences that may be reasonably drawn from the undisputed

facts.” Id. (quoting Tapley v. Golden Big O Tires, 676 P.2d 676, 678

(Colo. 1983)).

2. Law and Discussion

¶ 28 In their more definite statement, the tenants alleged that the

landlord “filed an eviction [action] and added late fees” in retaliation

for their reporting the uninhabitable condition of the property to the

Department. Those were the only retaliatory actions alleged. The

tenants indicated that they were bringing this claim under the

retaliation section of the lease and section 38-12-509, C.R.S. 2021.

¶ 29 The retaliation section of the lease provides that

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[t]he [l]andlord is prohibited from making any
type of retaliatory acts against the [t]enant(s)
including but not limited to restricting access
to the [p]remises, decreasing or cancelling
services or utilities, failure to repair appliances
or fixtures, or any other type of act that could
be considered unjustified.

¶ 30 Section 38-12-509, in turn, provides that “[a] landlord shall

not retaliate against a tenant by increasing rent or decreasing

services or by bringing or threatening to bring an action for

possession” in response to the tenant’s making “a good faith

complaint . . . to a governmental agency” alleging an uninhabitable

condition. § 38-12-509(1)(a). If a landlord retaliates against a

tenant, “the tenant may terminate the rental agreement” and

recover damages. § 38-12-509(2).

¶ 31 It is undisputed that the lease expired on July 31, 2022, and

that the landlord filed the eviction complaint on August 10, 2022.

Because the only retaliatory actions the tenants alleged were the

eviction complaint and late fees — and not, for example, a

retaliatory refusal to clean or repair the property after the tenants

made their report to the Department but before the lease expired —

the tenants have not explained how the landlord violated the

retaliation section of the lease. Further, on appeal, the tenants do

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not renew their argument that the landlord violated the retaliation

section of the lease, relying instead on section 38-12-509. We thus

consider this argument abandoned. See Gonzales v. Windlan, 2014

COA 176, ¶ 32 n.1 (appellate court will not address claims raised

below but not reasserted on appeal).

¶ 32 Under section 38-12-509(2), the tenant’s remedy for a

retaliatory eviction is to “terminate the rental agreement.” The

statute thus contemplates a landlord’s “bringing or threatening to

bring an action for possession” while a rental agreement is in effect.

§ 38-12-509(1). Here, the landlord submitted exhibits with her

motion for summary judgment showing that she served the tenants

with a demand for unpaid rent on July 12, 2022, and filed for

eviction on August 10, after the lease expired. In their response,

the tenants did not dispute that they were behind on rent or that

the landlord did not file the eviction complaint until after the lease

expired. Rather, they stated that “[w]hen [the landlord’s] actions in

filing the eviction are put into full view of all of their other actions

up to that point, it paints a picture of retaliation.”

¶ 33 As the district court found, the tenants’ response was

insufficient to create a genuine issue of material fact regarding their

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retaliation claim. See People in Interest of S.N. v. S.N., 2014 CO 64,

¶ 17, (“[R]eliance upon allegations or denials in the pleadings will

not suffice when faced with an affidavit affirmatively showing the

absence of a triable issue of material fact.” (quoting Ginter v. Palmer

& Co., 585 P.2d 583, 585 (Colo. 1978))). Because we agree with the

district court that there was no genuine issue of material fact and

that the landlord was within her rights to pursue eviction after the

tenants overstayed the lease and did not pay rent, we conclude that

the court did not err by granting summary judgment for the

landlord on the tenants’ retaliation claim.

D. Treating the Motions the Same

¶ 34 The tenants contend that the district court erred by “treating

the motion to dismiss” the breach of contract and warranty of

habitability claims “the same as the motion for summary judgment”

on the retaliation claim “without giving proper notice.” Specifically,

they argue that “all three claims were ruled upon in the same

manner and include[d] [the consideration of] any affidavits written

by [the landlord] outside of the pleadings.” But that is not what

happened. In its order, the district court dismissed the breach of

contract and warranty of habitability claims under Rule 12(b)(5)

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and granted summary judgment under Rule 56(h) on the retaliation

claim. The only affidavit submitted by the landlord pertained to her

filing for eviction and, thus, to the tenants’ retaliation claim. There

is no indication in the district court’s order that it considered the

affidavit for any other purpose. We thus discern no error.

E. Failure to Confer

¶ 35 The tenants contend that the district court reversibly erred by

granting the landlord’s motions to dismiss and for summary

judgment when the landlord failed to confer with the tenants before

filing. We disagree.

¶ 36 C.R.C.P. 121, section 1-15(8), provides that, “[u]nless a statute

or rule governing the motion provides that it may be filed without

notice, moving counsel . . . shall confer with opposing counsel . . .

before filing a motion.” However, as the district court noted, the

committee comments to this section indicate that the duty to confer

is not required in all cases, although “[i]f there has been no

conference, the reason why must be stated.” C.R.C.P. 121,

§ 1-15(8) cmt. 2. It is undisputed that the landlord’s counsel did

not confer with the tenants’ counsel and did not state the reason

why there had been no conference.

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¶ 37 Under the harmless error standard, we will not disturb a

judgment unless a court’s error affected the substantial rights of

the parties. C.R.C.P. 61. An error affects a substantial right only if

“it can be said with fair assurance that the error substantially

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

the trial itself.” Bly, 241 P.3d at 535 (quoting Banek v. Thomas,

733 P.2d 1171, 1178 (Colo. 1986)). Here, the district court found

that, because the landlord’s dispositive motions surely would have

been opposed, “conferral would have been fruitless.” We agree and

thus conclude that any error in the court’s failure to enforce the

conferral requirement was harmless.

F. Attorney Fees

¶ 38 The landlord requests her appellate attorney fees under

section 13-17-102(2), C.R.S. 2024, on the grounds that the tenants’

appeal “lacked substantial justification.” An argument lacks

substantial justification if it is “substantially frivolous, substantially

groundless, or substantially vexatious.” § 13-17-102(9)(a). But

because we agree with the tenants’ first two contentions, we cannot

conclude that the appeal lacked substantial justification, and we

decline to award appellate attorney fees.

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III. Disposition

¶ 39 The district court’s summary judgment on the tenants’

retaliation claim is affirmed. Its dismissal of their breach of

contract and warranty of habitability claims is reversed, and the

case is remanded to the district court for further proceedings on

those claims.

JUDGE KUHN and JUDGE BERGER concur.

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