2022 COA 148
Colo. Ct. App.2022Background
- Maiker Housing Authority (a public county housing authority) leased an apartment to pro se tenant Rebekah Panzlau; she reported a water leak and mold and stayed in a hotel while Maiker arranged repairs.
- Maiker asked Panzlau to vacate so it could remediate mold; she refused to remove her belongings and Maiker filed a forcible entry and detainer (FED) action to clear the unit for repairs.
- Panzlau filed multiple pro se counterclaims alleging mold-related injury (negligence/premises liability, breach of contract/warranty of habitability, and constructive eviction) and repeatedly moved to recuse the district judge, asserting his former law firm had previously represented Maiker.
- The judge denied all three recusal motions and did not stay proceedings while the third (successive) recusal motion was pending; the court also ordered amended pleadings under Colorado’s pleading standard as explained in Warne v. Hall.
- Maiker moved to dismiss; the district court dismissed Panzlau’s remaining counterclaims with prejudice on October 22, 2021, concluding (inter alia) that her mold-based tort claims were barred for failure to provide timely CGIA notice and that the breach claim failed under pleading standards.
- Panzlau appealed the dismissal and the denials of recusal and stay; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Panzlau) | Defendant's Argument (Maiker) | Held |
|---|---|---|---|
| Must judge recuse because his former firm previously represented Maiker? | Prior firm representation of Maiker creates actual or perceived conflict requiring recusal. | Former employer’s prior, unrelated representation of Maiker, without the judge’s involvement, does not require recusal. | Denied: no recusal required where judge wasn’t involved and representation was of unrelated matters. |
| Must proceedings be stayed after filing a successive recusal motion based on the same facts? | Filing the third recusal motion required automatic stay under C.R.C.P. 97. | Successive motions repeating the same factual basis do not trigger mandatory stay and may be denied to prevent delay. | Denied stay: Rule 97 does not require staying proceedings for repetitive recusal motions that add no new factual grounds. |
| Were Panzlau’s tort claims barred by failure to timely notify under the Colorado Governmental Immunity Act (CGIA)? | Date of injury was April 9, 2021 (last exposure); notice filed July 28, 2021, thus timely. | Panzlau discovered her mold-related injury by January 19, 2021 (her own email referencing mold report and symptoms), so July notice was untimely and deprives court of jurisdiction. | Held barred: court lacked subject-matter jurisdiction because notice was untimely (discovery on or before Jan. 19, 2021). |
| Did the breach-of-contract / warranty-of-habitability claim state a plausible claim under Warne? | Allegations of uninhabitability, failures to remediate, and statutory violations suffice. | Pleadings lacked specific lease provisions, did not allege statutorily required written notice to trigger mold remediation duties, and failed to plead elements. | Dismissed: breach claim failed pleading standard — insufficient facts to plausibly allege essential elements. |
Key Cases Cited
- Warne v. Hall, 373 P.3d 588 (Colo. 2016) (adopted federal plausibility pleading standard for Colorado pleadings)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (clarified plausibility pleading test)
- Nat’l Auto Brokers v. Gen. Motors Corp., 572 F.2d 953 (2d Cir. 1978) (former employer’s firm representation of a party in unrelated matters does not automatically mandate recusal)
- Martin v. Monumental Life Ins. Co., 240 F.3d 223 (3d Cir. 2001) (same principle regarding prior firm affiliation)
- In re Wilhite, 298 S.W.3d 754 (Tex. App. 2009) (denying recusal where judge was not involved in firm’s prior representation)
- Bocian v. Owners Ins. Co., 482 P.3d 502 (Colo. App. 2020) (standard of review and sufficiency of recusal motions)
- Richardson v. People, 481 P.3d 1 (Colo. 2020) (violation of judicial conduct rules does not mandate reversal absent evidence of bias)
- Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993) (Trinity hearing to resolve CGIA applicability when factual dispute exists)
- Abrahamson v. City of Montrose, 77 P.3d 819 (Colo. App. 2003) (discovery of injury, not knowledge of cause, starts CGIA notice period)