Golec v. Boring

23CA1218 Golec v Boring 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1218
Eagle County District Court No. 19CV30164
Honorable Paul R. Dunkelman, Judge

Thomas Golec, Mara Lynn Looney, Mark K. Nicholson, Andrew H. Soliday,
Laurie A. Soliday, Andrew A. Soliday, and Jeanne M. Wicks,

Plaintiffs-Appellees and Cross-Appellants,

v.

Todd H. Boring and Chrystie Carter,

Defendants-Appellants and Cross-Appellees.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE KUHN
Yun and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 12, 2024

Ferguson Schindler Law Firm, P.C., Michelle K. Schindler, Aspen, Colorado, for
Plaintiffs-Appellees and Cross-Appellants

Ridley, McGreevy & Winocur, P.C., Robert T. Fishman, Denver, Colorado;
Feldman/Wertz, LLP, Alan Feldman, Basalt, Colorado, for Defendants-
Appellants and Cross-Appellees

*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 Defendants, Todd H. Boring and Chrystie Carter, appeal the

judgment entered upon jury verdicts finding them liable to

plaintiffs, Thomas Golec, Mara Lynn Looney, Andrew H. Soliday

(Andy), Laurie A. Soliday, and Jeanne M. Wicks, for intentional

infliction of emotional distress, negligent infliction of emotional

distress, and nuisance. Boring and Carter also appeal the

judgment against them in favor of plaintiff, Mark K. Nicholson, for

nuisance. Finally, Boring appeals the judgment in favor of plaintiff,

Andrew A. Soliday (Drew), on his nuisance claim. On cross-appeal,

Wicks, Nicholson, Andy, and Drew1 appeal the jury’s verdict in favor

of Boring and Carter on their counterclaim for intrusion upon

seclusion. We affirm.

I. Background

¶2 At trial, the jury heard testimony that would have allowed it to

find the following facts. This case arose from a neighborhood

dispute in rural Eagle County that started in 2017. At that time,

1 Because three parties involved in this litigation share the last

name Soliday, we refer to them for clarity collectively as the
“Solidays” and individually by their first names as used in trial. We
intend no disrespect by doing so.

1
Wicks and her partner, Nicholson, were renting out parts of their

property through Airbnb. They alleged that Boring and his partner,

Carter, were dissatisfied with their short-term rental business and

believed that Wicks was running a “porn ring”2 at her property. So,

they claim, Boring, Carter, and their neighbor, Joe Weinant,

engaged in a pattern of behavior that was intended to drive Wicks

and Nicholson out of the neighborhood.

¶3 Thus, one June afternoon, plaintiffs observed Weinant driving

through the neighborhood on his all-terrain vehicle (ATV), shooting

his handgun in the air, and screaming, “[Y]ou need to get the fuck

out of here.” Later that day, Boring and Carter went to Weinant’s

property where the three shot their guns and set off large fireworks

late into the night.

¶4 The disruptive behavior didn’t end there. Over the next five

months, neighbors recorded roughly twenty-five separate incidents

where Boring and Carter engaged in intense shooting at their

property and other behavior that plaintiffs viewed as offensive. That

2 The “porn ring” referred to Wicks’s “orgasmic meditation” practice.

Wicks testified at trial that while she was certified to coach
orgasmic meditation, she never did so at the property.

2
included shooting large caliber firearms, at times for hours on end

and well after midnight; playing loud music while constantly riding

ATVs up and down the dirt road that runs through the

neighborhood; playing a recording of a piercing shrieking sound,

often after midnight; using a chain saw late at night; shining lights

from a skid steer toward neighboring properties; and setting off

fireworks during a statewide fire ban.

¶5 While Boring and Carter initially directed their behavior

toward Wicks and Nicholson, other neighbors were impacted and

took issue with it as well. In November 2017, Wicks and the

Solidays obtained a temporary protection order against Boring and

Carter, prohibiting them from possessing firearms and coming

within 100 yards of the protected parties. But despite the

protection order, and even though they moved out of the

neighborhood in the summer of 2018, Boring and Carter continued

to race ATVs and shoot guns at Weinant’s property anytime they

came back to visit. And after the protection order was vacated in

November 2018, plaintiffs reported several additional incidents

where Boring and Carter shot large caliber guns and engaged in

other behavior they found objectionable late into the night.

3
¶6 Roughly two years after the first incident, plaintiffs filed this

suit against Boring, Carter, and Weinant. As relevant here, Golec,

Looney, Wicks, and the Solidays asserted claims for intentional

infliction of emotional distress (outrageous conduct); negligent

infliction of emotional distress (NIED), which was pleaded in the

alternative to the outrageous conduct claim; and nuisance.

Nicholson only asserted a nuisance claim. In response, Boring and

Carter asserted a counterclaim for intrusion upon seclusion,

alleging that plaintiffs were surveilling them by installing hidden

cameras in the neighborhood.

¶7 The parties’ first trial ended in a mistrial. During the second

trial, both sides moved for a directed verdict on their respective

claims. Boring and Carter contended that they were entitled to a

directed verdict on the outrageous conduct claim because their

conduct wasn’t extreme and outrageous as a matter of law. Boring

and Carter also argued for a directed verdict on the NIED claim

because plaintiffs failed to present any evidence that Boring and

Carter subjected them to an unreasonable risk of physical harm,

that they sustained physical injuries as a result of their emotional

distress, or that those injuries were caused by Boring and Carter.

4
Plaintiffs contended that they were entitled to a directed verdict on

the intrusion upon seclusion counterclaim because Boring and

Carter failed to present evidence supporting the elements of that

tort.

¶8 The trial court denied the motions. At the conclusion of the

eleven-day trial, the jury found that Golec, Looney, Wicks,

Nicholson, Andy, and Laurie had prevailed on their claims against

Boring, Carter, and Weinant. It also found Boring and Weinant

liable to Drew on his nuisance claim. Finally, it found that Boring

and Carter were entitled to judgment on their intrusion upon

seclusion counterclaim against Wicks, Nicholson, Andy, and Drew.

The jury awarded plaintiffs in total $2.52 million in compensatory

and punitive damages, of which roughly $1.06 million was

5
apportioned to Boring and $1.1 million was apportioned to Carter.3

The jury awarded Boring and Carter $30,000 each on their

counterclaim. Boring and Carter then filed a motion for a judgment

notwithstanding the verdict, which the trial court denied.

II. Analysis

¶9 On appeal, Boring and Carter contend that the trial court

erred by entering judgment against them because (1) the conduct

underlying the outrageous conduct claim wasn’t extreme and

outrageous as a matter of law; (2) plaintiffs failed to establish their

alternative NIED claim because Boring’s and Carter’s actions didn’t

subject plaintiffs to an unreasonable risk of physical harm, they

3 The remainder of the award was apportioned to Weinant. After
trial, the defendants each filed for bankruptcy relief in federal
district court, resulting in an automatic stay of this litigation.
Boring and Carter then asked for relief from the automatic stay so
that they could pursue their appeal, which the bankruptcy court
granted. Accordingly, this court allowed Boring and Carter’s appeal
and plaintiffs’ cross-appeal to proceed, stayed Weinant’s appeal,
and ordered Weinant to file status reports regarding his bankruptcy
every forty-nine days. Golec v. Boring, (Colo. App. No. 23CA1218,
Jan. 5, 2024, and Mar. 26, 2024) (unpublished orders). But after
Weinant failed to comply with the order requiring him to file
periodic status reports, this court dismissed the appeal as to him
with prejudice. Golec v. Boring, (Colo. App. No. 23CA1218, Aug. 16,
2024) (unpublished order).

6
didn’t suffer physical injuries, and didn’t prove any injuries were

caused by Boring and Carter; and (3) the jury’s damages award was

excessive and unsupported by the evidence in the record. We

disagree with the first contention, and thus, need not address

Boring and Carter’s challenge to the alternative NIED claim. We

also decline to address their last contention because they failed to

preserve it for appeal.

¶ 10 On cross-appeal, Wicks, Nicholson, Andy, and Drew argue

that the trial court erred by denying their motion for a directed

verdict on Boring and Carter’s counterclaim for intrusion upon

seclusion. We disagree.

A. Standard of Review

¶ 11 We review de novo a trial court’s denial of a motion for a

directed verdict and a motion for a judgment notwithstanding the

verdict. Smith v. Surgery Ctr. at Lone Tree, LLC, 2020 COA 145M,

¶ 8. In reviewing decisions on these motions, we employ the same

standards as those the trial court must use. See State Farm Mut.

Auto. Ins. Co. v. Goddard, 2021 COA 15, ¶ 26. That is, we view the

evidence, and all inferences that reasonably may be drawn from it,

7
in the light most favorable to the nonmoving party. Int’l Network,

Inc. v. Woodard, 2017 COA 44, ¶ 8.

¶ 12 When the motion concerns a question of fact, a directed

verdict or judgment notwithstanding the verdict should be entered

only when the evidence “compels the conclusion that reasonable

jurors could not disagree and that no evidence or inference

therefrom had been received at trial upon which a verdict against

the moving party could be sustained.” Boulders at Escalante LLC v.

Otten Johnson Robinson Neff & Ragonetti PC, 2015 COA 85, ¶ 19.

Accordingly, “[a] court shouldn’t grant either motion unless there is

no evidence that could support a verdict against the moving party

on the claim.” Parks v. Edward Dale Parrish LLC, 2019 COA 19,

¶ 10. To the extent the motion involved a question of law, however,

we review the decision de novo. Boulders at Escalante LLC, ¶ 19.

B. The Trial Court Didn’t Err by Denying Boring and Carter’s
Motion for a Directed Verdict on the Outrageous Conduct
Claim

¶ 13 Boring and Carter contend that the trial court erred by

denying their motion for a directed verdict on plaintiffs’ outrageous

conduct claim because the conduct underlying that claim wasn’t

extreme and outrageous as a matter of law. We disagree.

8
1. Applicable Law

¶ 14 To prevail on a claim for outrageous conduct, a plaintiff must

prove that (1) the defendant engaged in extreme and outrageous

conduct; (2) they did so recklessly or with the intent of causing the

plaintiff severe emotional distress; and (3) the conduct caused the

plaintiff severe emotional distress. Mackall v. JPMorgan Chase

Bank, N.A., 2014 COA 120, ¶ 49. The level of outrageousness

required to establish the first element of the claim is extremely high.

Pearson v. Kancilia, 70 P.3d 594, 597 (Colo. App. 2003). “Only

conduct that is so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency and be

regarded as atrocious and utterly intolerable in a civilized

community, will suffice.” Id. Accordingly, “[m]ere insults,

indignities, threats, annoyances, petty oppressions, or other

trivialities are insufficient.” Id.

¶ 15 A claim for outrageous conduct may be submitted to the jury

only if the trial court determines that “the plaintiff’s allegations of

outrageous conduct are sufficiently outrageous as a matter of law.”

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

doing so, the court must evaluate outrageousness in the context of

9
the totality of the conduct, whether during a single incident or a

series of incidents. See Zalnis v. Thoroughbred Datsun Car Co., 645

P.2d 292, 294 (Colo. App. 1982). If reasonable persons could differ

on whether a series of acts is outrageous, the trial court must deny

a motion for a directed verdict and submit the claim to the jury.

See Meiter v. Cavanaugh, 580 P.2d 399, 401 (Colo. App. 1978); see

also Archer v. Farmer Bros. Co., 70 P.3d 495, 499 (Colo. App. 2002),

aff’d, 90 P.3d 228 (Colo. 2004).

2. Discussion

¶ 16 Boring and Carter contend that the trial court erred by

concluding that reasonable jurors could differ as to whether their

conduct was sufficiently extreme and outrageous. They assert that

“[d]ischarging firearms on private property in rural Colorado, riding

ATVs in the same area, and sounding a bear alarm and [fire truck]

siren on a handful of occasions over the course of years falls far

short of” outrageous conduct.

¶ 17 But while Boring and Carter characterize their actions as

“legal, intermittent, and at least to some extent, condoned by

[p]laintiffs,” we agree with the trial court that reasonable jurors

could conclude that their conduct as a whole constituted a pattern

10
of harassment and intimidation sufficiently extreme and outrageous

to create liability.

¶ 18 To begin, plaintiffs presented evidence that Boring’s and

Carter’s actions were intended to force Wicks and Nicholson out of

the neighborhood. To achieve that objective, Boring and Carter

engaged in a series of inflammatory acts that intimidated not only

their primary targets but also their other neighbors. Plaintiffs also

presented evidence that after the neighbors complained, they too

became the intended targets of the acts.

¶ 19 Those acts included consistent gunfire, both at Boring and

Carter’s and Weinant’s property. It also included racing ATVs

through the neighborhood, setting off fireworks, playing loud

screeching sounds, and using a chain saw to make noise. Boring

and Carter often engaged in these activities for hours at a time and

late into the night. Indeed, Laurie testified that, between June and

December 2017, she recorded roughly twenty-five separate

incidents of this nature. Plaintiffs also testified about specific

patterns to the acts targeting them. For example, they testified that

when they or guests would arrive home and get out of the car,

Boring or Carter would fire multiple shots.

11
¶ 20 True, after Wicks and the Solidays obtained the November

2017 temporary protection order prohibiting Boring and Carter from

possessing firearms, there was a period during which they didn’t

shoot guns at their property. But the record also shows that the

protection order didn’t stop them from engaging in actions toward

plaintiffs. Wicks testified that while the protection order was still in

effect, Boring and Carter continued to race ATVs and shoot guns at

Weinant’s property. She recounted six incidents from August and

September 2018 when they engaged in such conduct. And after the

protection order was vacated a couple months later, Boring and

Carter resumed late night shooting at their property. Indeed, the

record shows that at least four such incidents occurred through

May 2019, and that during one of them, Boring and Carter shot

roughly 170 rounds in one night.

¶ 21 The record also shows that Boring and Carter were aware that

their conduct was bothering plaintiffs and yet continued to engage

in it. Wicks, Golec, Looney, and Laurie testified that each of them

contacted Boring and Carter to voice their concerns about the

shooting and other behavior that concerned them. Indeed, Golec

sent Boring an email stating that the shooting had retriggered his

12
post-traumatic stress disorder (PTSD). And while it’s true that

plaintiffs’ counsel later informed Boring and Carter that plaintiffs

would be okay with the shooting and ATV riding under certain

conditions, plaintiffs also presented evidence that Boring and Carter

disregarded those requests.

¶ 22 This record contradicts Boring and Carter’s argument that

their actions occurred infrequently and were indistinguishable from

common behavior in their rural neighborhood. Instead, it shows a

series of disturbing incidents that Boring and Carter repeatedly

engaged in even after having knowledge that those incidents

affected plaintiffs’ well-being, including causing Golec recurrence of

his PTSD. See Zalnis, 645 P.2d at 294 (courts are more likely to

find outrageous conduct in a series of incidents or a course of

conduct than in a single incident); see also Reigel v. SavaSeniorCare

L.L.C., 292 P.3d 977, 991 (Colo. App. 2011) (noting that a conduct

may become outrageous by virtue of a defendant’s knowledge that

the plaintiff is peculiarly susceptible to emotional distress by reason

of some physical or mental condition or peculiarity).

¶ 23 This record also cuts against Boring and Carter’s argument

that because the purpose of their actions was solely to drive Wicks

13
and Nicholson out of the neighborhood, their conduct could be

extreme and outrageous only as to those two plaintiffs. The

remaining plaintiffs, they argue, “cannot establish an outrageous

conduct claim based simply on the fact that those actions may have

adversely affected them.” But as is apparent from the above record,

those other plaintiffs were more than just unintended victims of

Boring and Carter’s conflict with Wicks and Nicholson. They were

subjected to the same behavior as Boring and Carter’s primary

targets.

¶ 24 Moreover, there is evidence in the record from which

reasonable jurors could conclude that Boring and Carter also

intended their actions to target the other plaintiffs in retaliation for

those plaintiffs’ opposition to their shooting and other activities.

See Green v. Qwest Servs. Corp., 155 P.3d 383, 386 (Colo. App.

2006) (noting that the conduct underlying an outrageous conduct

claim must be directed toward the plaintiff); cf. Coors Brewing Co.,

978 P.2d at 666 (concluding that a defendant’s conduct wasn’t

outrageous as a matter of law in part because it was directed

toward society, not the plaintiff).

14
¶ 25 For example, Laurie recounted an incident when Boring made

a finger gun gesture toward her, testifying that she perceived that

act as a way for him to intimidate and terrify her. She also

recounted an incident when, in her words, “[Carter] tried to

intimidate [her] by coming down a very narrow, icy stretch [of the

dirt road] at high speeds and [she] had to get the heck out of the

way.” Similarly, Looney testified that after she reported Boring and

Carter to the police one day, they parked their ATVs in front of her

house at around 1 a.m. the next morning. Moreover, while Boring

and Carter’s property was roughly ten acres in size, Looney testified

that they were shooting along her property line that was located

only about twenty yards from her house. And less than two months

after Golec emailed Boring about how the shooting had retriggered

his PTSD, Boring and Carter shot guns on the property bordering

Golec’s property.

¶ 26 Viewing the entire record in the light most favorable to

plaintiffs, see Woodard, ¶ 8, we conclude that reasonable jurors

could differ about whether Boring’s and Carter’s conduct as a whole

was extreme and outrageous, see Meiter, 580 P.2d at 401. Under

15
these circumstances, then, the trial court didn’t err by denying their

motion for a directed verdict on that issue.

C. We Need Not Address Plaintiffs’
Alternative NIED Claims

¶ 27 Boring and Carter next argue that the trial court erred by

entering judgment on plaintiffs’ NIED claims because the plaintiffs

who ultimately prevailed against them — Golec, Looney, Wicks,

Andy, and Laurie — failed to establish all the elements of that tort.

¶ 28 To prevail on their respective NIED claims, these plaintiffs

were required to show that (1) Boring and Carter were negligent;

(2) the negligent conduct created an unreasonable risk of physical

harm that caused the plaintiff to fear for their safety; (3) the fear

caused the plaintiff to suffer physical consequences or

long-continued emotional disturbance; and (4) the plaintiff’s fear

was the cause of the damages sought. See Draper v.

DeFrenchi-Gordineer, 282 P.3d 489, 496-97 (Colo. App. 2011); see

also Towns v. Anderson, 579 P.2d 1163, 1164-65 (Colo. 1978);

CJI-Civ. 9:2 (2024).

¶ 29 Boring and Carter challenge the second and third elements of

NIED. Specifically, they argue that plaintiffs presented no evidence

16
that (1) Boring’s and Carter’s actions created an unreasonable risk

of physical harm or (2) plaintiffs’ emotional distress manifested

itself in physical injuries that they caused.

¶ 30 However, we need not address the merits of these arguments

in light of our conclusion that the trial court didn’t err by entering

judgment on plaintiffs’ outrageous conduct claim. As we note

above, plaintiffs pleaded NIED as an alternative theory of liability to

their outrageous conduct claim. In doing so, they didn’t argue that

those two claims were based on different conduct or that they had

suffered different damages for the two claims. Instead, the record

shows that both claims were premised on the same conduct and

that plaintiffs argued that they incurred one set of injuries and

damages from that conduct. In other words, there was no

distinction between harm that was caused negligently as opposed to

intentionally.

¶ 31 Under these circumstances, NIED was merely an alternative

theory under which plaintiffs sought to hold Boring and Carter

liable for their actions. Because plaintiffs prevailed on their

primary claim of outrageous conduct — and we affirm that

judgment here — we need not consider whether the trial court erred

17
by entering judgment on plaintiffs’ alternative NIED claim.4 See

Winston Fin. Grp., Inc. v. Fults Mgmt., Inc., 872 P.2d 1356, 1358

(Colo. App. 1994) (affirming a trial court’s judgment entered upon a

bench trial on one ground and declining to address the court’s

alternative basis supporting that judgment). And even if we were to

assume that the trial court erred, any such error would be harmless

given that the jury didn’t award any separate damages for NIED.

See C.R.C.P. 61 (providing that an error in a civil case is harmless,

and thus doesn’t require reversal, unless it affects a substantial

right of a party).

D. Boring and Carter Did Not Preserve Their
Challenges to the Damages Awards

¶ 32 Boring and Carter challenge the jury’s damages awards on

multiple grounds. Specifically, Boring and Carter contend that the

jury erred by awarding

• damages for emotional distress to Wicks, Looney, Golec,

Laurie, and Andy because those plaintiffs failed to present

4 Plaintiffs agreed during oral argument that NIED was only an

alternative theory of liability that we need not address if we affirm
on the outrageous conduct claim. Boring and Carter’s counsel
didn’t disagree with that assertion.

18
evidence about how they calculated their requested

damages;

• nonrecoverable litigation stress damages to Looney, Golec,

Laurie, and Andy;

• damages for their annoyance and discomfort to Wicks,

Nicholson, and Drew;

• damages for the loss of use and enjoyment of property to

Wicks, Looney, Golec, Nicholson, Laurie, and Andy because

those awards aren’t supported by any competent evidence

in the record; and

• other damages that are not recoverable under law, such as,

(1) punitive damages to Wicks that were “based on the

financial strain caused by this litigation”; and (2) derivative

noneconomic damages to Andy based on his testimony that

he had suffered emotional distress during an incident

involving Boring’s and Carter’s conduct toward his wife

Laurie, not him.

¶ 33 But the record shows that, except for the litigation stress issue

listed in the second bullet point, Boring and Carter didn’t even

mention any of the other issues in the trial court. Their motion for

19
a directed verdict didn’t focus on the issue of damages but only on

the other elements of the outrageous conduct, NIED, and nuisance

claims. And while Boring and Carter argued in their motion for a

judgment notwithstanding the verdict that the jury awarded

excessive damages considering the nature of their conduct, that

general challenge to the amount of damages wasn’t supported by

the specific arguments they pursue in this appeal.

¶ 34 Relying on McCoy v. People, 2019 CO 44, Boring and Carter

contend that they are entitled to raise this challenge to the damages

awards for the first time on appeal because it constitutes a

sufficiency of the evidence claim. But this is a civil case, not

criminal case. So we disagree. See Plaza del Lago Townhomes

Ass’n v. Highwood Builders, LLC, 148 P.3d 367, 372 (Colo. App.

2006) (concluding that a party failed to preserve a sufficiency of the

evidence challenge to the civil damages award by failing to raise

that issue in the trial court); see also People in Interest of M.B., 2020

COA 13, ¶ 14 (noting that, except where jurisdiction is implicated,

our review in civil cases is limited to the issues that the parties

presented to and obtained a ruling from the trial court).

20
¶ 35 Because Boring and Carter failed to raise these arguments in

the trial court, they are not preserved for appellate review. See

Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO

61, ¶ 18 (“It is axiomatic that issues not raised in or decided by a

lower court will not be addressed for the first time on appeal.”). We

thus decline to address them further.5 See Valentine v. Mountain

States Mut. Cas. Co., 252 P.3d 1182, 1188 n.4 (Colo. App. 2011)

5 Boring and Carter also argue that we should address their

unpreserved argument about the derivative noneconomic damages
because the jury “manifestly erred” by awarding Andy those
damages without the court first “find[ing] justification by clear and
convincing evidence therefor,” as required under section
13-21-102.5(3)(b), C.R.S. 2024. We’re not persuaded. “[O]nly in a
‘rare’ civil case, involving ‘unusual or special’ circumstances — and
even then, only ‘when necessary to avert unequivocal and manifest
injustice’ — will an appellate court reverse based on an unpreserved
claim of error.” Wycoff v. Grace Cmty. Church of Assemblies of God,
251 P.3d 1260, 1269 (Colo. App. 2010) (citation omitted). Boring
and Carter’s reference to Andy’s short testimony about one incident,
when plaintiffs’ emotional distress claims were based on a series of
incidents occurring over a two-year period, doesn’t meet this
demanding standard. And to the extent Boring and Carter argue
that we should review this issue because “the mandatory provision
of [s]ection [13-21]-102.5(3)[b] should be considered self-executing,”
we note that they offer no authority or analysis in support of that
sweeping proposition. Consequently, we decline to further consider
this undeveloped argument. See Cikraji v. Snowberger, 2015 COA
66, ¶ 21 n.3 (“We do not consider bald factual or legal assertions
presented without argument or development.”).

21
(“We review only the specific arguments a party pursued before the

district court.”).

¶ 36 Boring and Carter did mention the litigation stress argument

in their motion for a judgment notwithstanding the verdict, stating

that plaintiffs “themselves testified that they were not presently

suffering from emotional distress from anything other than

litigation stress, which is not compensable.” It is questionable

whether this bare bones reference with no supporting argument

was sufficient to alert the trial court of the basis for the objection.

Regardless, it fails.

¶ 37 In advancing this argument on appeal, Boring and Carter

point us to the language of the damages instructions for the

outrageous conduct and NIED claims. As relevant here, both

instructions provided that in determining damages, the jury must

consider “[a]ny noneconomic losses or injuries a plaintiff has had to

the present time or that a plaintiff will probably have in the future,

including . . . physical and mental pain and suffering,

inconvenience, [and] emotional stress . . . .” (Emphasis added.)

¶ 38 Boring and Carter argue that because the jury was instructed

that it could award damages for emotional stress, and “assuming

22
the jury followed the instructions, there is every reason to think

that its award of noneconomic damages to Golec, Looney, and

[Andy] and Laurie Soliday included an award for the stress caused

by this litigation.” In other words, Boring and Carter posit that the

trial court erred by not instructing the jury that damages for

emotional stress should exclude those damages for

noncompensable litigation stress.

¶ 39 But the record shows that Boring and Carter also failed to

raise this instructional challenge in the trial court. The parties

jointly submitted the relevant damages instructions as part of the

undisputed instructions packet before the first trial. The parties

then stipulated to those identical instructions for the second trial

that gave rise to this appeal. When the trial court went over the

damages instructions during the jury instructions conference,

Boring and Carter didn’t object or request an instruction that would

clarify the meaning of emotional stress.

¶ 40 C.R.C.P. 51 provides that “[a]ll instructions shall be submitted

to the parties, who shall make all objections thereto before they are

given to the jury. Only the grounds so specified shall be considered

. . . on appeal or certiorari.” Boring and Carter’s failure to object to

23
the jury instructions they now challenge on appeal constitutes

waiver. See Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1200-01

(Colo. App. 2009) (declining to review an instructional challenge

where the party failed to object to the instruction); see also

Farmland Mut. Ins. Cos. v. Chief Indus., Inc., 170 P.3d 832, 839

(Colo. App. 2007) (concluding that a party waived an issue that it

raised in its motion for a judgment notwithstanding the verdict but

failed to request a jury instruction on in the trial court).

¶ 41 Because this issue is waived, we likewise decline to address it

further.

E. The Trial Court Didn’t Err by Submitting
to the Jury Boring and Carter’s Counterclaim
for Intrusion upon Seclusion

¶ 42 On cross-appeal, Wicks, Nicholson, Andy, and Drew contend

that the trial court erred by denying their motion for a directed

verdict on Boring and Carter’s intrusion upon seclusion

counterclaim.

¶ 43 In Colorado, invasion of privacy encompasses three separate

torts: (1) unreasonable intrusion upon the seclusion or solitude of

another; (2) unreasonable publicity given to another’s private life;

and (3) appropriation of another person’s name or likeness.

24
Pearson, 70 P.3d at 598-99. Boring and Carter alleged the first tort

for their counterclaim, asserting that plaintiffs unreasonably

intruded upon their seclusion by taking photos and videos with

surveillance cameras that plaintiffs surreptitiously installed in the

neighborhood. To prevail, Boring and Carter had to show that

plaintiffs “intentionally intruded, physically or otherwise, upon

[their] seclusion or solitude, and that such intrusion would be

considered offensive by a reasonable person.” Doe v. High-Tech

Inst., Inc., 972 P.2d 1060, 1065 (Colo. App. 1998) (citing

Restatement (Second) of Torts § 652B (Am. L. Inst. 1981)). A claim

for intrusion upon seclusion contemplates an intrusion upon a

physical space held in seclusion by the person asserting the claim,

but it also “encompasses intrusions into a person’s private concerns

based upon a reasonable expectation of privacy in that area.” Id. at

1068.

¶ 44 Plaintiffs moved for a directed verdict at the close of all

evidence, arguing that Boring and Carter couldn’t prevail on their

counterclaim because they presented no evidence that the cameras

intruded upon their privacy or that such intrusion would be viewed

as offensive by a reasonable person. Specifically, plaintiffs

25
contended that Boring and Carter had no reasonable expectation of

privacy given that the evidence established that the cameras weren’t

facing their property and that those cameras didn’t record them

inside their home. Rather, plaintiffs asserted, all photos and videos

showed Boring and Carter while they were either out on the

neighborhood road or in their backyard, which was visible from

Looney’s property. And in advancing their argument that Boring

and Carter couldn’t establish that the intrusion, if any, would be

offensive to a reasonable person, plaintiffs pointed out that they

installed the cameras for their security and to document Boring’s

and Carter’s activities that they found objectionable.

¶ 45 The trial court denied plaintiffs’ motion for a directed verdict.

It determined that because some photos showed areas of Boring

and Carter’s property, “[t]he jury could certainly accept factually

that . . . one camera [that] had the ability to take photos was

pointed at [their property].” And in concluding that a reasonable

juror could find that Boring and Carter had an expectation of

privacy under the circumstances, the court distinguished this case

from Jacobson v. CBS Broadcasting, Inc., 19 N.E.3d 1165 (Ill. App.

Ct. 2014), observing that

26
[the Jacobson case] indicates taking pictures in
the backyard, there was no expectation of
privacy because the backyard was visible from
the sidewalk. This is not a case where
anything would be visible from a sidewalk.
This is not a sidewalk case. This is a rural
area. It’s a heavily tree[d] area. These
properties are far apart from each other. The
. . . court does find that . . . under this
scenario, under this standard, there can be [an
expectation] of privacy in a rural area with
houses far away in your own yard.

¶ 46 Plaintiffs contend that the trial court erred when it reached

this conclusion because “[a]s a matter of law, [Boring and Carter] do

not have any expectation of privacy when they are on the road or

when they are outside and can be viewed from [p]laintiffs’

properties.” In support, plaintiffs point out that the “undisputed

evidence establishe[d]” that the cameras weren’t pointed toward

Boring and Carter’s property and that there was no evidence “that

any [p]laintiff ever went onto [Boring and Carter’s] property or that

[plaintiffs] ever looked into their residence.” We’re not persuaded

for two reasons.

¶ 47 First, we disagree with plaintiffs’ implication that the right to

seclusion only exists within a person’s home and doesn’t extend to

any area outside of it. While the interior of a home is a private

27
place, surveilling a person’s backyard may also give rise to an

invasion of privacy claim given that “there is a reasonable

expectation of privacy within the curtilage of a residence.” Jackman

v. Cebrink-Swartz, 334 So. 3d 653, 656-67 (Fla. Dist. Ct. App. 2021)

(emphasis added).

¶ 48 Second, plaintiffs’ argument mischaracterizes the record. As

the trial court noted, there was a factual dispute as to whether the

cameras were directed toward Boring and Carter’s property. Boring

and Carter testified that plaintiffs installed a camera high on a tree

facing their backyard. Indeed, they both testified that they saw the

recording light on the tree camera from inside their house, with

Boring stating that he could “see a red dot from [their] bathroom.”

And while plaintiffs assert that the part of the property where

Boring and Carter fired guns was “in plain sight from Looney’s

property,” Carter testified that this area wasn’t visible from the road

that went through the neighborhood. Further, pictures of one of

the security cameras shows that limbs are only cut away in one

section. Carter testified that the camera was installed on the part

of the tree “in between where the [branches were] cut out.”

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¶ 49 This record shows that Boring and Carter presented evidence

from which reasonable jurors could dispute whether plaintiffs

intruded upon their seclusion by installing surveillance cameras

that were pointed to parts of the property where they had a

reasonable expectation of privacy. See id. at 655-57 (holding that a

party intruded upon the seclusion of their neighbor by installing a

surveillance camera roughly twenty-five feet in the air and pointing

that camera toward the neighbor’s backyard). Cf. Schiller v.

Mitchell, 828 N.E.2d 323, 326-29 (Ill. App. Ct. 2005) (dismissing a

plaintiff’s intrusion upon seclusion claim where a neighbor’s

surveillance camera was facing the parts of the plaintiff’s property

that were in a public view).

¶ 50 Plaintiffs contend that Boring and Carter nonetheless can’t

prevail on their counterclaim because they failed to establish that

the intrusion was offensive to a reasonable person. In support of

this argument, plaintiffs assert that Boring and Carter “did not

present any testimony that the photos/videos of them on the road

or shooting were ‘offensive.’” But this argument misses the point.

The governing test is not whether the intrusion resulted in one

person acquiring information about another that a reasonable

29
person would view as offensive. Rather, the question is whether a

reasonable person would find the intrusion itself offensive

considering its degree, manner, and purpose. See Doe, 972 P.2d at

1069.

¶ 51 Here, the record shows that plaintiffs used cameras to monitor

Boring and Carter’s house for at least two years, making hundreds

of videos. A reasonable juror could find this extended and

persistent surveillance offensive. See Jackman, 334 So. 3d at

656-57 (“[W]e conclude that there is a material difference between

occasionally viewing the activities within a neighbor’s backyard that

are observable without peering over a privacy fence and erecting a

camera to see over a privacy fence to thereafter surveil and record

those activities on a consistent basis.”); see also Polay v. McMahon,

10 N.E.3d 1122, 1127-28 (Mass. 2014) (holding that the trial court

erred by dismissing a claim for intrusion upon seclusion where a

defendant was recording the plaintiff’s home on a continuous

basis).

¶ 52 True, the record also shows that plaintiffs installed the

cameras to document Boring’s and Carter’s behavior after a police

deputy suggested that they should take photos and videos of the

30
activities they perceived as harassment. But while plaintiffs argue

that this means their surveillance wasn’t for an unwarranted

purpose, it was for the jury — and not the trial court — to decide

that question of fact. See Robert C. Ozer, P.C. v. Borquez, 940 P.2d

371, 378 (Colo. 1997) (noting that whether a disclosure of a

person’s private life would be highly offensive to a reasonable

person is a question of fact).

¶ 53 Finally, we also disagree with plaintiffs’ conclusory assertion

that Boring and Carter failed to present any evidence of damages.

Boring testified that the surveillance caused him mental anguish,

noting that he constantly felt like someone was “going to pop out

and take a picture of [him and Carter].” He also testified that when

he and Carter would go back to visit the neighborhood, they would

feel like someone was keeping an eye on what they were doing and

videotaping them. Similarly, Carter testified that she and Boring

had to move out of the neighborhood “because of the feeling of being

watched on your own property all the time.” She stated that the

knowledge that plaintiffs had been surveilling her made her feel

anxious, “watched,” and mentally drained. Boring and Carter thus

presented competent evidence that they had suffered compensable

31
injuries. Doe, 972 P.2d at 1066 (noting that a person who suffers

an intrusion upon their seclusion is entitled to recover, among

other things, damages for mental suffering).

¶ 54 In sum, we conclude that, viewing the evidence in the light

most favorable to Boring and Carter, see Woodard, ¶ 8, there was

sufficient evidence to create a factual dispute upon which

reasonable jurors could have differed, Boulders at Escalante LLC,

¶ 19. The trial court therefore didn’t err by denying plaintiffs’

motion for a directed verdict on that issue.

F. Appellate Attorney Fees

¶ 55 Plaintiffs request an award of attorney fees that they incurred

in defending against this appeal. Relying on section 13-17-102,

C.R.S. 2024, plaintiffs contend that Boring and Carter’s appeal

lacked substantial justification because many of their arguments

were not preserved in the trial court.

¶ 56 Section 13-17-102(2) provides that the court may award

attorney fees against a party who “brought or defended a civil

action, either in whole or in part, that the court determines lacked

substantial justification.” An action “lacked substantial

32
justification” if it was “substantially frivolous, substantially

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

¶ 57 While we decline to address the merits of Boring and Carter’s

challenges to the NIED claim and damages awards, we don’t

conclude they brought this appeal in bad faith or presented no

rational argument based on the evidence or law in its support. See

Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282,

299-301 (Colo. App. 2009) (defining substantially frivolous,

substantially groundless, and substantially vexatious claims). And

they partially prevailed in this appeal in any case by successfully

defending the portion of the judgment in their favor. We therefore

deny the request for appellate attorney fees.

III. Disposition

¶ 58 The judgment is affirmed.

JUDGE YUN and JUDGE BERGER concur.

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