Molina v. Cahill

23CA2060 Molina v Cahill 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2060
Fremont County District Court No. 23CV1025
Honorable Lynette M. Wenner, Judge

Daniel Emilio Molina,

Plaintiff-Appellant,

v.

William Cahill,

Defendant-Appellee.

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

Division V
Opinion by JUDGE GROVE
Freyre and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Daniel Emilio Molina, Pro Se

William Cahill, Pro Se
¶1 Plaintiff, Daniel Emilio Molina, appeals the district court’s

judgment granting the motion to dismiss filed by defendant, William

Cahill, and awarding Cahill attorney fees under section 13-17-

201(1), C.R.S. 2024. We affirm the district court’s dismissal of four

of Molina’s claims — breach of contract, unjust enrichment,

tortious interference with contractual relations, and declaratory

judgment — based on a lack of subject matter jurisdiction,

although we conclude that those claims should not have been

dismissed with prejudice. With respect to Molina’s fifth claim —

intentional infliction of emotional distress (IIED) — we affirm the

district court’s dismissal with prejudice. And because it is

premature in the absence of a final appealable order, we dismiss

Molina’s appeal of the district court’s order granting Cahill’s request

for a fee award.

I. Background

¶2 We draw the following factual background from the record on

appeal, including the allegations in Molina’s complaint.

¶3 In December 2016, Cahill agreed to sell a parcel of land to

Hotwire H. Ranch, LLC (Hotwire) via an installment land contract.

The parties to the contract, which had a ten-year payment schedule

1
and a sale price of $95,000, were Cahill and Hotwire. Hotwire is a

limited liability company (LLC) solely owned by Molina, who is also

the LLC’s only member. Separately, Molina Management LTD

(Molina Management) — which is also an LLC — reached

agreements to receive monthly rent from tenants residing on the

parcel of land. As is true for Hotwire, Molina is the sole owner and

only member of Molina Management.

¶4 In February 2023, Cahill told Molina that his health was

deteriorating and that he might die before Molina finished making

installment payments under the contract. Cahill also told Molina

that his family had “pushed back when [he] mentioned to them”

that he planned on sending Molina a quitclaim deed to the property

when the payments were complete. Negotiations ensued, with

Cahill offering to buy out Molina’s interest in the land (for far less

than the amount Molina had already paid under the contract) and

Molina offering to pay off the contract’s remaining balance in

exchange for a warranty deed. In April 2023, Cahill informed

Molina that he believed the “contract [was] broken” and that he was

unwilling “to provide a bill of sale or a warranty deed.” Cahill

indicated they may need to “go before a judge.”

2
¶5 Molina, acting in his personal capacity, filed suit against

Cahill and asserted the following claims for relief: (1) breach of the

installment land contract; (2) failure to comply with requirements

for escrow agent designation and written notice filing under section

38-35-126(3), C.R.S. 2024; (3) unjust enrichment; (4) tortious

interference with the contract between Molina Management and its

tenants; and (5) IIED.

¶6 Cahill moved to dismiss Molina’s first four claims under

C.R.C.P. 12(b)(1), arguing that Molina lacked standing in his

personal capacity to sue Cahill for Cahill’s alleged conduct against

the interests of Hotwire and Molina Management. Cahill

emphasized that Molina “was never a party to either the [c]ontract

or the [l]ease in his individual capacity.” Additionally, Cahill moved

to dismiss Molina’s claim for IIED under C.R.C.P. 12(b)(5) because

Molina failed to state a claim upon which relief could be granted.

Specifically, Cahill argued that “the mere fact that [Cahill] informed

[Molina] that he would not agree to [Molina]’s request to pay the

remaining balance of the contract price in exchange for the

warranty deed . . . in no conceivable way rises to the level of

outrageousness and intolerableness [required] to sustain” the IIED

3
claim. Moreover, Cahill argued that Molina’s IIED claim was

precluded by the economic loss rule (which we describe below).

¶7 The district court granted the motion to dismiss. Regarding

Molina’s first four claims, the court explained that Hotwire and

Molina Management, not Molina, were the parties to the relevant

contracts, that Molina’s interest in the contracts was limited to his

share of profits and losses and the right to receive distributions of

company assets, and that he had no right to demand and receive

distributions from the companies in any form other than cash. In

addition, because both entities are LLCs, the court concluded that

they could not “function . . . as extensions of [Molina] in his

personal capacity” and that, as a result, they needed to be

represented by counsel “unless the necessary statutory

requirements are satisfied.” See § 13-1-127(1)(a), (2), C.R.S. 2024.

The court also considered and rejected Molina’s argument that he

should be permitted to proceed in his individual capacity by relying

on agreements that purported to assign Hotwire’s installment land

contract and Molina Management’s lease to Molina. The court

specifically found that the agreements were invalid and failed to

transfer to Molina either entity’s right to proceed in the litigation.

4
¶8 Turning to Molina’s IIED claim, the district court reasoned

that the claim was precluded by the economic loss rule because

Molina failed to “establish[] that [Cahill] had any independent duty

to [Molina].” And because Cahill “had no duty to prevent [Molina]

from experiencing emotional distress or [physical symptoms] as the

result of bad news or uncertainty,” it followed that Molina’s IIED

claim was “intertwined inextricably with his claim that [Cahill]

breached the [c]ontract.” In any event, the district court found,

nothing in the pleadings showed that “the alleged conduct [wa]s so

outrageous and extreme in degree as to support the claim as a

matter of law.”

¶9 The district court dismissed Molina’s complaint “in its entirety

with prejudice” and awarded attorney fees pursuant to section 13-

17-201(1). The court did not, however, reduce its fee award to a

sum certain before Molina filed his notice of appeal.

¶ 10 Molina filed a motion to reconsider, citing C.R.C.P. 121,

section 1-15(11). In the motion, he argued for the first time that

(1) amendments he made to the assignment agreements and to the

LLCs’ operating agreements following the district court’s dismissal

order resolved the agreements’ previous shortcomings; and (2) in

5
order to remedy his lack of standing to personally sue under

contracts to which he was not a party, the district court should

“pierc[e] the corporate veil of his LLCs and tak[e] the stance that

[Molina] is the alter ego of the LLCs.”

¶ 11 The district court denied Molina’s motion to reconsider. It

noted at the outset that, because its dismissal order was not

interlocutory, the motion was cognizable under C.R.C.P. 59 or 60

rather than C.R.C.P. 121, section 1-15(11). The district court then

considered Molina’s motion under both rules. Applying C.R.C.P.

59, the court concluded that the only potential ground for relief was

the discovery of new evidence, in the form of the amended

assignment agreements and operating agreements. But because

these agreements were prepared after the case was dismissed, the

court concluded they were not newly discovered evidence.

¶ 12 As for C.R.C.P. 60(b)(1), the court observed that Molina failed

to argue for any of the potential grounds for relief specified by that

rule, “relying instead on dubious claims of new evidence, objections

to the legal reasoning of the [c]ourt’s [o]rder, and arguments

regarding . . . ‘clear error,’ manifest injustice, and the need to

decide this matter on the merits.”

6
II. Preservation

¶ 13 At the outset, we note that Molina failed to preserve three of

his appellate contentions for appeal. Preservation is a threshold

question; we do not review issues that are insufficiently preserved.

Rinker v. Colina-Lee, 2019 COA 45, ¶ 22. Generally, to preserve an

issue for appeal, a party “must make a timely and specific objection

or request for relief in the district court.” Id. at ¶ 25. Thus,

arguments raised for the first time on appeal are not preserved. See

Keith v. Kinney, 140 P.3d 141, 153 (Colo. App. 2005).

¶ 14 Likewise, arguments first made in a post-trial motion “are too

late and, consequently, are deemed waived for purposes of appeal.”

Briargate at Seventeenth Ave. Owners Ass’n v. Nelson, 2021 COA

78M, ¶ 66; see also Denny Constr., Inc. v. City & Cnty. of Denver,

170 P.3d 733, 740 (Colo. App. 2007) (arguments presented for the

first time in a C.R.C.P. 59 motion are insufficient for preservation

on appeal), rev’d on other grounds, 199 P.3d 742 (Colo. 2009); Ortiz

v. Valdez, 971 P.2d 1076, 1079-80 (Colo. App. 1998); Landmark

Towers Ass’n v. UMB Bank, N.A., 2018 COA 100, ¶ 45. And where

an argument raised during earlier proceedings differs from an

argument raised in a motion for post-trial relief, the previously

7
raised argument is insufficient to preserve the post-trial argument

for appeal. See Fid. Nat’l Title Co. v. First Am. Title Ins. Co., 2013

COA 80, ¶ 51.

A. Piercing the Corporate Veil

¶ 15 First, Molina contends that the district court erroneously

refused to pierce the corporate veil of Hotwire and Molina

Management by failing to find that he was the alter ego of these

entities with standing to sue on their behalf — a concept known as

“[i]nsider reverse veil-piercing.” McKay v. Longman, 211 A.3d 20, 46

(Conn. 2019). Because Molina raised this argument for the first

time in his motion to reconsider, however, we conclude that he did

not properly preserve it and do not consider it further. See Nelson,

¶ 66.

B. Dismissal of Tortious Interference with Contract Claim

¶ 16 Second, Molina contends that the district court erred by

dismissing his claim of tortious interference with contract.

Specifically, he asserts that the district court should have allowed

him to represent the interests of the two LLCs with respect to this

claim because the amount of damages that he sought for tortious

interference — $12,000 — fell below the $15,000 threshold set forth

8
in section 13-1-127(2)(a) (“[A] closely held entity may be represented

before any court of record . . . by an officer of such closely held

entity if,” among other things, “[t]he amount at issue in the

controversy or matter before the court or agency does not exceed

fifteen thousand dollars.”).

¶ 17 Once again, irrespective of the merits of this argument, Molina

raised it for the first time in his motion to reconsider; it is therefore

waived for purposes of appeal.1 See Nelson, ¶ 66.

C. Constitutionality Challenge

¶ 18 Third, Molina asserts that section 13-1-127(2)(a) — which

establishes several exceptions to the general rule that entities must

be represented by counsel — violates due process and equal

protection under both the United States and Colorado

Constitutions. However, Molina did not raise this argument in the

1 We acknowledge that in paragraph eighty-eight of his amended

complaint (which appears in the “Factual Allegations” section),
Molina alleged that he “is incurring a loss of $12,000 due to William
Cahill’s refusal to honor the terms of the land installment contract
at issue in this case.” But nothing in the tortious interference claim
itself suggests that Molina seeks only that amount. To the
contrary, Molina’s tortious interference claim seeks “pecuniary
damages,” “consequential damages,” “emotional distress damages,”
and “punitive damages” without suggesting any specific limitation
on the amounts sought.

9
trial court, and we do not consider arguments raised for the first

time on appeal. See Keith, 140 P.3d at 153.

III. Molina’s Motion to Reconsider

A. The District Court Addressed Molina’s Motion on the Merits

¶ 19 Molina contends that the district court erred by “refusing to

consider” his motion to reconsider simply because the motion

incorrectly referenced C.R.C.P. 121 rather than C.R.C.P. 59 or 60.

As we understand Molina’s argument, he maintains that the district

court rejected his motion on this technical ground despite his

clarification in subsequent briefing that his motion was in fact

made pursuant to C.R.C.P. 59 and 60. His argument, however, is

at odds with the record. As we have already discussed, not only did

the district court consider the merits of Molina’s motion, but it

specifically analyzed his arguments under C.R.C.P. 59 and 60,

denying the motion only after finding that relief was not warranted

under either rule. To the extent that Molina raises new arguments

on appeal about why he should have been granted relief under

C.R.C.P. 59 or 60, we decline to consider them. See Keith, 140 P.3d

at 153.

B. The Amended Assignment Agreements

10
¶ 20 Molina also argues that the district court erred by “not

recognizing the effect of” the assignment agreements that were

amended after the district court’s dismissal order and attached as

“new evidence” to his post-trial motion. As best we can tell, Molina

takes issue with the district court’s refusal to give effect to the

amended agreements in denying his motion for reconsideration.

¶ 21 In its order, the district court explained that because the

amended agreements were prepared and signed by Molina after the

dismissal order was entered, they were not newly discovered

evidence potentially justifying reconsideration of that order. To rule

otherwise, the court reasoned, “would allow litigants to create their

own new evidence after the fact.” Alternatively, the court stated, if

the agreements had been prepared and signed by Molina before the

dismissal order, then Molina “failed to explain why he was not able

to produce” them before it ruled on the motion to dismiss.

¶ 22 We perceive no abuse of discretion in this ruling. See Zolman

v. Pinnacol Assurance, 261 P.3d 490, 502 (Colo. App. 2011) (“A trial

court has considerable discretion in ruling on a motion for new

trial, and its ruling will not be disturbed absent a clear showing of

an abuse of discretion.”).

11
¶ 23 To succeed on a C.R.C.P. 59 motion grounded on newly

discovered evidence, the moving party must establish that the new

evidence could not have been discovered through the exercise of

reasonable diligence, was material, and would probably change the

result. Aspen Skiing Co. v. Peer, 804 P.2d 166, 172 (Colo. 1991).

The motion must be supported by an affidavit. C.R.C.P. 59(d)(6);

see also People in Interest of E.H., 837 P.2d 284, 288 (Colo. App.

1992). The failure to establish any one of the factors outlined in the

rule requires the denial of the motion. Peer, 804 P.2d at 172.

¶ 24 Here, even assuming that the updated agreements could be

considered “newly discovered” evidence as contemplated by C.R.C.P.

59(d), Molina’s motion did not explain why they could not have been

previously discovered through the exercise of reasonable diligence,

nor did he comply with the rule’s procedural requirement that he do

so via an affidavit. Given these deficiencies, the district court acted

within its discretion when it declined to grant Molina’s request for

post-trial relief.

IV. Dismissal of IIED Claim

¶ 25 Molina next alleges that the district court erroneously

dismissed his IIED claim. Specifically, he maintains that Cahill

12
owed him an independent duty of care and that Cahill’s conduct

was sufficiently outrageous to sustain this claim. We disagree.

A. Standard of Review and Applicable Law

¶ 26 We review de novo a district court’s ruling on a motion to

dismiss. Patterson v. James, 2018 COA 173, ¶ 16. We apply the

same standards as the district court, accepting the complaint’s

factual allegations as true and viewing those allegations in the light

most favorable to the plaintiff. Id. A court may dismiss a complaint

under C.R.C.P. 12(b)(5) if the factual allegations do not, as a matter

of law, support a claim for relief. Froid v. Zacheis, 2021 COA 74,

¶ 17.

¶ 27 To state a claim for intentional infliction of emotional distress,

a plaintiff must allege facts that, if proven, would establish that

(1) the defendant engaged in extreme and outrageous conduct;

(2) the defendant did so recklessly or with intent of causing the

plaintiff severe emotional distress; and (3) the defendant’s conduct

caused the plaintiff severe emotional distress. Culpepper v. Pearl St.

Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994). This theory creates

liability in only very limited circumstances, where the conduct was

“so outrageous in character, and so extreme in degree, as to go

13
beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”

Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo. 1988)

(quoting Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970)).

¶ 28 Although the question whether conduct is outrageous is

generally one of fact to be determined by a jury, it is first the

responsibility of a court to determine whether reasonable persons

could differ on the question. Culpepper, 877 P.2d at 883; see also

Coors Brewing Co. v. Floyd, 978 P.2d 663, 665-66 (Colo. 1999)

(affirming trial court’s order granting motion to dismiss outrageous

conduct claim “[a]s a matter of law” because “no reasonable person

could find” defendant’s actions “arose to the high level of

outrageousness required by our case law”); First Nat’l Bank in

Lamar v. Collins, 616 P.2d 154, 155-56 (Colo. 1980).

¶ 29 And “[w]hether the economic loss rule precludes a particular

claim raises a legal issue subject to de novo appellate review.”

Dream Finders Homes LLC v. Weyerhaeuser NR Co., 2021 COA 143,

¶ 35 (quoting In re Estate of Gattis, 2013 COA 145, ¶ 10).

¶ 30 “Broadly speaking, the economic loss rule is intended to

maintain the boundary between contract law and tort law.” Town of

14
Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1259 (Colo. 2000). To

identify whether contract or tort law applies to a particular claim,

courts look to the source of the duty that the defendant allegedly

breached. Id. at 1262. “A breach of a duty which arises under the

provisions of a contract between the parties must be redressed

under contract, and a tort action will not lie.” Id. (citation omitted).

¶ 31 A claim “based on a recognized independent duty of care” does

not fall within the scope of the rule. Id. at 1263. That exception

applies when “special relationships . . . automatically trigger an

independent duty of care.” Id. (noting that some relationships, such

as the attorney-client, physician-patient, and insurer-insured

relationships, “by their nature automatically trigger an independent

duty of care that supports a tort action even when the parties have

entered into a contractual relationship”). Thus, a plaintiff may

assert a tort action if the alleged breach of contract also implicates

an independent duty of care. Id.

B. Analysis

¶ 32 As an initial matter, both parties assert that this issue is

preserved, and we agree.

15
¶ 33 In its dismissal order, the district court provided two reasons

for dismissing Molina’s IIED claim: (1) the economic loss rule

prohibited the claim because Molina failed to show that Cahill owed

him an independent duty of care, and (2) the conduct alleged by

Molina was not “so outrageous and extreme in degree as to support

the claim as a matter of law.”

¶ 34 On appeal, Molina argues that Cahill did in fact owe him a

duty of care independent from their contract, and, as a result, the

economic loss rule does not apply. However, he cites no case law,

and we are aware of none, stating that his relationship with Cahill

as a purchaser of land triggers a “recognized independent duty of

care.” Town of Alma, 10 P.3d at 1263. Rather, Molina appears to

argue that we should recognize a new independent duty of care “in

light of [Cahill’s] promises that he and his family could be trusted”

and because Molina is younger than Cahill and had less experience

with land purchases at the time of their contract. We conclude as a

matter of law that these circumstances alone would not establish

an independent duty of care sufficient to support Molina’s tort

claim.

16
¶ 35 Molina also contends that Cahill’s conduct was sufficiently

outrageous to sustain his IIED claim because of his status as a

disabled combat veteran. However, our analysis of outrageousness

is focused not on the identity of the individual bringing an IIED

claim but instead on the nature of the alleged conduct; specifically,

we consider whether Cahill’s conduct was “so outrageous in

character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Churchey, 759 P.2d at 1350

(quoting Rugg, 476 P.2d at 756). Like the district court, we cannot

conclude that the allegations that Cahill breached his contract with

Molina satisfy this high standard.

¶ 36 We discern no error by the district court in its dismissal of

Molina’s IIED claim.

V. Dismissal with Prejudice

¶ 37 Molina contends that the district court erred by dismissing

with prejudice the four claims that the district court found he had

no standing to bring (breach of contract, unjust enrichment,

tortious interference with contractual relations, and declaratory

17
judgment). Cahill concedes that the district court should have

dismissed these claims without prejudice. We agree.

¶ 38 A motion to dismiss for lack of standing is brought pursuant

to C.R.C.P. 12(b)(1) and impacts a court’s subject matter

jurisdiction. See Pueblo Sch. Dist. No. 60 v. Colo. High Sch. Activities

Ass’n, 30 P.3d 752, 753 (Colo. App. 2000) (“A court does not have

subject matter jurisdiction if a plaintiff lacks standing to invoke its

judicial power.”). And “[g]enerally, a dismissal for lack of

jurisdiction does not bar subsequent proceedings and, thus,

dismissal with prejudice is improper.” Woo v. El Paso Cnty. Sheriff’s

Off., 2020 COA 134, ¶ 29, aff’d, 2022 CO 56. “This principle

reflects the possibility that the plaintiff may be able to refile the

complaint (in the same court or another) and plead facts that cure

the jurisdictional defect.” Id.

¶ 39 We therefore remand the case with directions to amend the

judgment to reflect that the dismissal of Molina’s four non-IIED

claims is without prejudice.

VI. Attorney Fees Award

¶ 40 Molina also contends that the district court erred when it

determined that Cahill was entitled to attorney fees pursuant to

18
section 13-17-201. Although the district court has ruled that Cahill

is entitled to a fee award, it did not reduce its order to a sum

certain by awarding a specific amount of fees before Molina filed his

notice of appeal. Any fee award is therefore not ripe for appellate

review. Kreft v. Adolph Coors Co., 170 P.3d 854, 859 (Colo. App.

2007). We therefore must dismiss Molina’s appeal of the trial

court’s fee award as premature.2

VII. Appellate Attorney Fees

¶ 41 Cahill seeks an award of appellate attorney fees based on his

successful defense of the district court’s order dismissing Molina’s

complaint under C.R.C.P. 12(b). In contrast to the district court’s

award of fees under section 13-17-201, this issue is properly before

us. See Wark v. Bd. of Cnty. Comm’rs, 47 P.3d 711, 717 (Colo. App.

2002) (“A party who successfully defends . . . a dismissal order

2 Although we do not reach the merits of the district court’s award

of fees, we note that Cahill requested fees under section 13-17-
102(6), C.R.S. 2024, arguing that Molina knew or should have
known “that his action was substantially frivolous or groundless.”
The court, however, awarded fees under section 13-17-201, C.R.S.
2024. We conclude below that the fee-shifting provisions of section
13-17-201 do not apply to Molina’s complaint, and therefore deny
Cahill’s request for appellate fees on that basis.

19
[subject to section 13-17-201] is also entitled to recover reasonable

attorney fees incurred on appeal.”).

¶ 42 For the reasons below, we decline to award Cahill his appellate

attorney fees.

A. Standard of Review

¶ 43 “Whether a statute,” such as section 13-17-201, “mandates an

award of costs or attorney fees is a question of statutory

interpretation and is thus a question of law we review de novo.”

Crandall v. City of Denver, 238 P.3d 659, 661 (Colo. 2010).

B. Section 13-17-201 does not Apply Because the “Essence” of
Molina’s Case was a Contract Claim

¶ 44 As relevant to this case, section 13-17-201(1) states that, “[i]n

all actions brought as a result of . . . an injury to . . . property

occasioned by the tort of any other persons,” a defendant “shall

have judgment for his reasonable attorney fees in defending the

action,” if the action is dismissed on any ground pursuant to a

defendant’s C.R.C.P. 12(b) motion. Fee-shifting is mandatory under

this provision in cases involving the dismissal of a complaint that

asserts tort claims. Wark, 47 P.3d at 717.

20
¶ 45 “When a plaintiff has pleaded both tort and non-tort claims,”

however, “a court must determine, as a matter of law, whether the

essence of the action was one in tort, in order to ascertain if section

13-17-201 applies.” Castro v. Lintz, 2014 COA 91, ¶ 16. To make

this determination, the court should

first apply the “predominance” test, assessing
whether the “essence of the action” is tortious
in nature (whether quantitatively by simple
number of claims or based on a more
qualitative view of the relative importance of
the claims) or not. The [c]ourt would then turn
to the question of whether [the] tort claims
were asserted to unlock additional remedies
only where the predominance test failed to
yield a clear answer, such as when the tort-
and non-tort claims are equal in number or
significance.

Gagne v. Gagne, 2014 COA 127, ¶ 84 (citation omitted)). “[T]he

court should rely on the pleading party’s characterization of its

claims and should not consider what the party should or might

have pleaded.” Id. at ¶ 81.

¶ 46 Here, the “predominance test” described in Gagne yields a

clear answer: The “essence” of this case sounds in contract rather

than tort. All of Molina’s claims center on his allegation that Cahill

breached his agreement to sell the subject property to an entity

21
owned by Molina. Only two of the five claims sound in tort and

because both depend on the alleged breach of contract, they are in

our view less important to Molina’s case than his claim that the

contract was breached. Cf. CAMAS Colo., Inc. v. Bd. of Cnty.

Comm’rs, 36 P.3d 135, 138 (Colo. App. 2001) (“In determining

whether a claim is contractual or lies in tort, a court should

examine whether the claim and the duty allegedly breached arise

from the terms of the contract itself.”).

¶ 47 Because Molina’s lawsuit was prompted by Cahill’s alleged

breach of contract, and because his tort claims are ancillary to, and

dependent on, that alleged breach, the essence of the case is

contractual. The fee-shifting requirements of section 13-17-201

therefore do not apply, and we decline to grant Cahill’s request for

an award of appellate attorney fees.

VIII. Disposition

¶ 48 We dismiss the portion of the appeal challenging the district

court’s determination that Cahill is entitled to attorney fees and

deny Cahill’s request for an award of appellate attorney fees. We

affirm the dismissal of Molina’s complaint but reverse the district

court’s judgment to the extent that it dismissed with prejudice

22
Molina’s claims for breach of contract, unjust enrichment, tortious

interference with contractual relations, and for entry of a

declaratory judgment. We remand the case with instructions to the

district court to amend the judgment to reflect that those claims

were dismissed without prejudice.

JUDGE FREYRE and JUDGE LUM concur.

23