Rivera v. Fort
24CA0856
Colo. Ct. App.May 29, 2025Background
- In May 2020, Paul R. Fort performed plumbing work at Obed Rivera’s residence, which allegedly caused a fire resulting in property damage.
- Rivera first sued Fort and Fort’s employer in September 2021, but despite serving the employer, he was unable to serve Fort and eventually dismissed Fort from the case without prejudice after the statute of limitations expired.
- Rivera settled his claims with Fort’s employer in the first case.
- In July 2023, Rivera filed a new lawsuit against Fort, properly serving him this time, but more than two years after the fire.
- The district court dismissed Rivera’s negligence claim as time-barred and rejected equitable tolling, also awarding Fort attorney fees and costs.
- Rivera appealed the dismissal and the award of attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of Limitations | Claim should be tolled due to prior case and alleged evasion of service by Fort | Limitations period expired; no tolling applies absent statutory provision or extraordinary circumstances | Claim barred; no tolling during pendency of prior dismissed case |
| Equitable Tolling | Fort wrongfully impeded service in prior case, justifying tolling | No evidence of wrongful conduct; no extraordinary circumstances | No facts alleged supporting equitable tolling; burden not met |
| Pleading Standard for Tolling | Sufficient to raise tolling argument in opposition to motion to dismiss | Must allege facts supporting tolling in complaint or opposition | Rivera failed to support request for tolling with required facts |
| Attorney Fees & Costs | Challenged award of attorney fees and appellate costs | Entitled due to dismissal under Rule 12(b)(5) | Affirmed; Fort entitled to reasonable fees and costs |
Key Cases Cited
- Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094 (Colo. 1996) (equitable tolling applies only where defendant wrongfully impedes plaintiff or extraordinary circumstances preclude timely filing)
- King v. W. R. Hall Transp. & Storage Co., 641 P.2d 916 (Colo. 1982) (statutes of limitations generally not tolled during pendency of a prior action dismissed without prejudice)
- SMLL, L.L.C. v. Daly, 128 P.3d 266 (Colo. App. 2005) (two-year statute of limitations applies to negligence claims)