2012 COA 214
Colo. Ct. App.2012Background
- Diamonds challenged a trial judgment favoring BSLNI; Diamonds sought fees and argued dismissal of tort claim under Rule 12(b) with costs under 13-16-113(2) and 13-17-201.
- BSLNI contracted orally with Diamonds to cut bridge deck concrete into blocks; Diamonds allegedly caused major damage to girders.
- Diamonds filed a late 12(b)(5) motion on the eve of trial; court dismissed negligent claim with prejudice but allowed amendment to add a breach-of-contract claim.
- BSLNI amended to add breach of contract; trial produced a jury verdict for BSLNI on the contract claim with $58,380 in damages.
- Appellate court held Diamonds’ motion should have been treated as a motion for judgment on the pleadings under 12(c); fees not warranted; expert testimony not required for the contract breach; both parties’ appeal fees denied; judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Attorney fees on negligence dismissal | BSLNI: fees under 13-16-113(2) and 13-17-201 apply when action dismissed | Diamonds: dismissal under 12(b) triggers fees | Fees not awarded; motion treated as 12(c) judgment on pleadings |
| Validity of Diamonds’ 12(b)(5) motion | BSLNI: 12(b) motion improper after responsive pleading | Diamonds: 12(b)(5) proper | Motion treated as judgment on the pleadings under 12(c); proper disposition of negligence claim |
| Need for expert testimony on contract standard of care | BSLNI must prove professional standard of care | No expert required; contract sets standard | Not required; contract limited damages; industry standard not implied by contract |
| Attorney fees on appeal | BSLNI seeks fees under CAR 39.5 and 13-17-102 | Diamonds argues none warranted | Fees denied on appeal |
Key Cases Cited
- Town of Alma v. AZCO Construction, Inc., 10 P.3d 1256 (Colo. 2000) (economic loss rule; 12(b) dismissal and fees statute)
- First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1998) (fees when action dismissed under Rule 12(b))
- Crow v. Penrose-St. Francis Healthcare System, 262 P.3d 991 (Colo. App. 2011) (fees statute interpretation; not controlling beyond 12(b) dismissals)
- Town of Breckenridge v. Golforce, Inc., 851 P.2d 214 (Colo. App. 1992) (contractual standard of care; expert testimony not required when contract governs)
- BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004) (contractual standards of care; explicit standards may be incorporated)
- AZCO Construction, 10 P.3d 125 (Colo. 2000) (distinguishes contract duties from tort duties; standard of care not imported absent contract)