COLORADO COURT OF APPEALS                                         2016COA122

Court of Appeals No. 15CA0206
City and County of Denver District Court No. 14CV32364
Honorable Robert L. McGahey, Jr., Judge


R. Parker Semler,

Plaintiff-Appellant,

v.

Bruce S. Hellerstein; Perfect Place, LLC; Bruce S. Hellerstein, CPA P.C.; Charles
Bewley; and Berenbaum Weinshienk, P.C.,

Defendants-Appellees.


              ORDERS AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                  Division II
                          Opinion by JUDGE ASHBY
                         Webb and Plank*, JJ., concur

                          Announced August 25, 2016


Semler and Associates, P.C., R. Parker Semler, Jeremy Goldblatt, Matthew
Nelson, Denver, Colorado, for Plaintiff-Appellant

Podoll & Podoll, P.C., Richard B. Podoll, Robert C. Podoll, Robert A. Kitsmiller,
Greenwood Village, Colorado, for Defendants-Appellees Bruce S. Hellerstein;
Perfect Place, LLC; and Bruce S. Hellerstein, CPA P.C.

Wheeler Trigg O’Donnell LLP, Carolyn J. Fairless, Denver, Colorado, for
Defendants-Appellees Charles Bewley; and Berenbaum Weinshienk, P.C.


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶1    Plaintiff, R. Parker Semler, appeals from the trial court’s order

 granting the motions to dismiss of defendants, Bruce S. Hellerstein;

 Perfect Place, LLC; Bruce S. Hellerstein, CPA P.C.; Charles Bewley;

 and Berenbaum Weinshienk, P.C., and denying Semler’s motion to

 amend his complaint. Semler also appeals from the trial court’s

 denial of his motion for postjudgment relief and its award of

 attorney fees and costs in defendants’ favor. We affirm in part,

 reverse in part, and remand the case for further proceedings.

                            I. Background

¶2    Semler and Perfect Place are both members of the 1940 Blake

 Street Condominium Association (Association). Hellerstein owns

 and controls both Perfect Place and Bruce S. Hellerstein, CPA P.C.

 (collectively, the Perfect Place defendants). Hellerstein also served

 as treasurer of the Association when he allegedly committed the

 conduct discussed below. Bewley is an attorney employed by the

 law firm of Berenbaum Weinshienk, P.C. At all relevant times,

 Bewley represented Hellerstein and his two corporate entities.

¶3    The current litigation stems from a related quiet title action in

 which Perfect Place asked the court to determine that it was the

 rightful owner of parking spaces C, D, and E. According to Semler,


                                    1
 he had acquired title to parking space C more than seven years

 before this litigation began. He also acquired title to parking space

 D through a deed of trust and for significant consideration. Perfect

 Place asserted that it had acquired title to parking spaces C, D, and

 E via a quitclaim deed from John Watson and two entities that

 Watson controlled in June 2011. The court presiding over the quiet

 title action determined that Semler owned parking spaces C and D,

 while Perfect Place owned parking space E.

¶4    Perfect Place appealed and that appeal is currently pending

 before another division of this court.

¶5    Semler then brought the current suit claiming that Bewley and

 Hellerstein devised a scheme to gain title to Semler’s building

 parking spaces C and D. Semler alleged that Bewley and

 Hellerstein, through various misrepresentations made to Watson,

 induced Watson to sign deeds conveying Semler’s parking spaces to

 Perfect Place. According to Semler, Hellerstein, as the treasurer of

 the Association, breached his fiduciary duty to Semler by scheming

 to take his parking spaces. Bewley, by representing Hellerstein,

 conspired with and helped Hellerstein in his efforts to improperly

 gain title to the parking spaces. And Berenbaum Weinshienk failed


                                    2
 to properly supervise Bewley, was vicariously liable for Bewley’s

 conduct, and breached an agreement to not represent one

 Association member against another. Semler’s first amended

 complaint alleged claims only for breach of fiduciary duty against

 Hellerstein, aiding and abetting that breach against Bewley, and

 civil conspiracy against all defendants.

¶6    Defendants filed two motions to dismiss, one based on

 C.R.C.P. 12(b)(5) and one based on a lack of standing. Soon

 thereafter, Semler moved to amend his complaint a second time,

 proposing to add claims for fraud, nondisclosure and concealment,

 negligent misrepresentation, negligent supervision, vicarious

 liability, and breach of contract. He also more clearly explained

 that he was seeking damages for the lost income opportunities he

 suffered as a result of having to defend against the quiet title

 action.1



 1 In his reply brief on appeal, Semler, for the first time, asserted
 damages based on his loss of use of the parking spaces and his
 inability to alienate them while the quiet title action is still pending.
 We decline to address these arguments as they were never
 presented to the trial court and have not been properly raised. See
 People v. Williams, 33 P.3d 1187, 1190 (Colo. App. 2001).


                                     3
¶7     The court granted the motions to dismiss and denied Semler’s

  second motion to amend. The court also awarded attorney fees in

  favor of defendants.

                  II. Timeliness of the Notice of Appeal

¶8     Defendants assert that Semler’s notice of appeal was untimely

  and, therefore, we lack jurisdiction to consider the appeal. We

  disagree.

¶9     “The timely filing of a notice of appeal is a jurisdictional

  prerequisite to appellate review.” Estep v. People, 753 P.2d 1241,

  1246 (Colo. 1988). Under C.A.R. 4(a), the notice of appeal must be

  filed “within 49 days of the date of the entry of the judgment,

  decree, or order from which the party appeals.”

¶ 10   As relevant here, one method by which to calculate the

  forty-nine-day period is from the date the court grants or denies a

  Rule 59 motion. C.A.R. 4(a). Thus, “[t]he timely filing of a motion

  pursuant to C.R.C.P. 59 tolls the time for filing a notice of appeal.”

  Goodwin v. Homeland Cent. Ins. Co., 172 P.3d 938, 944 (Colo. App.

  2007).

¶ 11   Nevertheless, defendants argue that because there was no trial

  and Semler made the same arguments in his postjudgment motion


                                     4
  as he had in earlier pleadings, Semler’s motion did not qualify as a

  C.R.C.P. 59 motion. They further argue that because Semler asked

  the court to vacate its orders of dismissal, the postjudgment motion

  could only be construed as a motion to vacate the judgment under

  C.R.C.P. 60. And, because a postjudgment motion pursuant to

  C.R.C.P. 60 does not toll the time within which to file a notice of

  appeal, Semler’s appeal is untimely.

¶ 12   We find the out-of-state cases cited by defendants

  distinguishable,2 follow those prior Colorado cases that construe

  motions such as Semler’s — filed in cases that ended before a trial

  — as motions under C.R.C.P. 59, and conclude that this appeal is

  timely. See SMLL, L.L.C. v. Daly, 128 P.3d 266, 269 (Colo. App.

  2005); Small v. Gen. Motors Corp., 694 P.2d 374, 375 (Colo. App.

  1984).

¶ 13   Here, the day after the court entered its order dismissing

  Semler’s claims, Semler filed a motion for reconsideration pursuant

  to C.R.C.P. 59. The court denied the motion about one month later

  2See Hyde v. Anania, 578 N.W.2d 647 (Iowa 1998); Brown v.
  Brown, No. 659, 1988 WL 36360, at *2 (Ohio Ct. App. Mar. 29,
  1988); Johnson v. Johnson, 515 A.2d 960, 962 (Pa. Super. Ct.
  1986).


                                     5
  on December 22, 2014. Exactly forty-nine days later, on February

  9, 2015, Semler filed his notice of appeal. Therefore, we conclude

  the appeal was timely filed and that we do have jurisdiction to

  consider the appeal.

                     III. Motion to Amend Complaint

¶ 14   Semler contends that the trial court erred by denying his

  motion for leave to amend his complaint a second time.

¶ 15   We generally review a trial court’s decision to grant or deny a

  motion to amend for an abuse of discretion. See Benton v. Adams,

  56 P.3d 81, 85 (Colo. 2002). However, “[w]hen a trial court denies

  leave to amend on grounds that the amendment would be futile

  because it cannot survive a motion to dismiss, we review that

  question de novo as a matter of law.” Id.

¶ 16   Our courts favor a liberal policy toward amending pleadings.

  Under C.R.C.P. 15(a), “where leave of court is required to amend a

  pleading, ‘leave shall be freely given when justice so requires.’” Civil

  Serv. Comm’n v. Carney, 97 P.3d 961, 966 (Colo. 2004) (quoting

  C.R.C.P. 15(a)). In determining whether to grant leave, the court

  should consider the totality of the circumstances. Id. Some

  grounds for denying a motion to amend include “undue delay, bad


                                     6
  faith, dilatory motive, repeated failure to cure deficiencies in the

  pleadings via prior amendments, undue prejudice to the opposing

  party, and futility of amendment.” Benton, 56 P.3d at 86.

¶ 17   Here, in its omnibus order dismissing the case, the trial court

  denied Semler’s motion to amend his complaint (for the second

  time) but stated no basis for doing so other than articulating why

  Semler had no standing to pursue any alleged fraud against or

  misrepresentation to Watson, the prior owner of the parking spaces.

  And the court’s dismissal of the action was specifically premised on

  Semler’s fraud claims. These claims were not included in Semler’s

  initial or amended complaint and were new to the second amended

  complaint. Therefore, it appears to us that even though the court

  denied Semler’s motion to amend, it did in fact consider the second

  amended complaint when ruling on the motion to dismiss.

  Defendants acknowledge this in their answer brief.

¶ 18   We presume, therefore, that the court’s denial of Semler’s

  motion to amend was premised on its dismissal of the entire action

  and the futility of further proceedings. Thus, we will review the trial

  court’s dismissal of the action based on Semler’s second amended

  complaint.


                                     7
                                IV. Standing

¶ 19   The trial court’s order dismissing the action stated:

             [Semler] is not the victim of the alleged fraud
             that he claims occurred. . . . [Semler] fails to
             offer any evidence to support this claim of
             misrepresentation, instead offering conclusory
             statements in his Complaint. If Mr. Watson is
             the victim of fraud, then it is he who should
             sue the Association and/or the individuals for
             their role in the alleged misrepresentation.
             Due to lack of standing, the other legal issues
             addressed in Defendants’ Motions are moot.

¶ 20   We review the trial court’s decision regarding whether a

  plaintiff has standing de novo. Barber v. Ritter, 196 P.3d 238, 245

  (Colo. 2008). To establish standing, the court must find that the

  plaintiff has suffered (1) an injury in fact (2) to a legally protected

  interest. Id. at 245-46. Both prongs must be met. A plaintiff lacks

  standing to sue for injuries allegedly suffered by someone else. See

  Wimberly v. Ettenberg, 194 Colo. 163, 168-69, 570 P.2d 535, 539

  (1977); see also Greenwood Vill. v. Petitioners for Proposed City of

  Centennial, 3 P.3d 427, 439 (Colo. 2000) (“The third-party standing

  rule prevents a party from asserting the claims of third parties who

  are not involved in the lawsuit.”).




                                        8
¶ 21   Here the fraud, concealment, and misrepresentation claims

  are all premised on conversations and transactions between Watson

  and defendants. Semler was not involved. He asserts, however,

  that the fraudulent conduct was intended to cause damage to him

  — that is, to improperly acquire title to his parking spaces thereby

  depriving him of their use. Even if we assume that Semler is

  correct and that he has standing to assert these fraud-based claims

  even though he was not the first-party victim of the fraud, we

  nonetheless affirm the trial court’s dismissal of those claims. See

  Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406

  (Colo. App. 2004) (we may affirm the trial court’s ruling on any

  grounds supported by the record).

¶ 22   Semler alleges that he suffered lost income opportunity

  damages as a result of defendants’ fraudulent conduct because he

  was forced to litigate his right to the parking spaces and was unable

  to accept additional clients during that time. To recover damages

  for fraudulent conduct, the damages must be a reasonably

  foreseeable consequence of the fraud. See Restatement (Second) of

  Torts §§ 435A, 548A (Am. Law Inst. 1965); see also Bridge v. Phx.

  Bond & Indem. Co., 553 U.S. 639, 656-57 (2008). We conclude that


                                    9
  Semler’s claims for lost opportunity damages are too remote and

  unforeseeable to be recoverable. See Bridge, 553 U.S. at 658;

  Roberts v. Holland & Hart, 857 P.2d 492, 496-98 (Colo. App. 1993).

  While the possibility of litigation and the potential for attorney fees

  would have been foreseeable, the damages alleged here, which

  resulted from Semler representing himself and foregoing the

  opportunity to accept other clients, is too far removed from the

  alleged fraudulent conduct to have been foreseeable by defendants.

¶ 23   Accordingly, we conclude that these claims failed to state a

  claim upon which relief could be granted and should have been

  dismissed under C.R.C.P. 12(b)(5). The trial court’s dismissal order,

  however, fails to address Semler’s remaining, non-fraud-based

  claims. Thus, we address them each in turn.

                           V. C.R.C.P. 12(b)(5)

¶ 24   Because Semler’s remaining claims assert conduct against

  him directly, the trial court’s reasoning for dismissal based on lack

  of standing does not apply. And because we may affirm the trial

  court’s order on any basis supported by the record, we analyze

  Semler’s remaining claims under C.R.C.P. 12(b)(5). See Rector v.

  City & Cty. of Denver, 122 P.3d 1010, 1013 (Colo. App. 2005)


                                     10
  (“When a trial court does not engage in the proper C.R.C.P. 12(b)

  analysis, a reviewing court need not remand if it can resolve the

  issue as a matter of law.”).

¶ 25   Under C.R.C.P. 12(b)(5), a party may move to dismiss the other

  party’s claims for “failure to state a claim upon which relief can be

  granted.” The supreme court recently acknowledged a shift in how

  Colorado courts should assess C.R.C.P. 12(b) motions to dismiss, so

  that Colorado law is more closely aligned with the federal

  standards. Warne v. Hall, 2016 CO 50, ¶ 29 (“Although our opinion

  today does not result in an amendment to the language of our rules

  of procedure, it clearly signals a shift in the considerations

  according to which a motion to dismiss is to be evaluated and,

  therefore, a change in the terms in which a complaint may have to

  be expressed to avoid dismissal.”). Under this standard, “only a

  complaint that states a plausible claim for relief survives a motion

  to dismiss.” Id. at ¶ 9 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679

  (2009)).

¶ 26   In contrast, under the old standard, a plaintiff failed to state a

  claim upon which relief could be granted when “it appear[ed]

  beyond a doubt that a plaintiff [could] prove no set of facts in


                                    11
  support of her claim which would entitle her to relief.” Pub. Serv.

  Co. of Colo. v. Van Wyk, 27 P.3d 377, 385-86 (Colo. 2001); see also

  Dotson v. Bernstein, 207 P.3d 911, 912 (Colo. App. 2009) (“A

  complaint may not be dismissed for failure to state a claim so long

  as the pleader is entitled to some relief upon any theory of law.”).

¶ 27   Warne suggests that the new standard applies retroactively,

  and despite having been ordered to address this issue at oral

  argument, neither party argued to the contrary. However, even

  under the prior and more lenient “no set of facts” standard, we

  conclude that Semler has failed to state a claim for all but one of

  his claims, as discussed below.3 Regardless, in reviewing Semler’s

  claims under Rule 12(b)(5), we view all allegations in the complaint

  as true and in the light most favorable to the nonmoving party. See

  Bly v. Story, 241 P.3d 529, 533 (Colo. 2010).




  3 Because under either the former, more lenient standard or the
  more stringent Warne standard the result would be the same, we
  reject Semler’s request to remand and allow him to amend yet again
  in an effort to satisfy the new standard.


                                    12
                           A. Civil Conspiracy

¶ 28   Semler contends that defendants conspired with each other to

  obtain his parking spaces. We conclude as a matter of law that

  Semler is not entitled to relief on a civil conspiracy claim.

¶ 29   The elements of a civil conspiracy claim are “(1) two or more

  persons, and for this purpose a corporation is a person; (2) an

  object to be accomplished; (3) a meeting of the minds on the object

  or course of action; (4) one or more unlawful overt acts; and (5)

  damages as the proximate result thereof.” Walker v. Van

  Laningham, 148 P.3d 391, 396 (Colo. App. 2006) (quoting Jet

  Courier Serv., Inc. v. Mulei, 771 P.2d 486, 502 (Colo. 1989)).

¶ 30   It is a well-settled tenet of corporate law that a director cannot

  conspire with the corporation which he serves. See, e.g., Pittman v.

  Larson Distrib. Co., 724 P.2d 1379, 1390 (Colo. App. 1986) (“A

  corporation and its employees do not constitute the ‘two or more

  persons’ required for a civil conspiracy, at least if the employees are

  acting on behalf of the corporation and not as individuals for their

  individual advantage.”) (citations omitted). However, Semler

  claimed that “at all times relevant to the allegations” in his

  complaint, Bewley was the legal representative for and an agent of


                                     13
  Perfect Place and Hellerstein.4 And whether an attorney who is

  acting within the scope of his representation may conspire with his

  client is an issue of first impression in Colorado.

¶ 31   Other courts that have addressed the issue generally hold that

  an attorney acting within the scope of his employment cannot

  conspire with his client unless the attorney acted for his sole

  personal benefit. See, e.g., Farese v. Scherer, 342 F.3d 1223, 1231

  (11th Cir. 2003); Heffernan v. Hunter, 189 F.3d 405, 412-13 (3d Cir.

  1999). This limitation reflects that “[t]he right of a litigant to

  independent and zealous counsel is at the heart of our adversary

  system and, indeed, invokes constitutional concerns.” Heffernan,

  189 F.3d at 413. Further, “[c]ounsels’ conduct within the scope of

  representation is regulated and enforced by disciplinary bodies

  established by the courts. Abuses in litigation are punishable by

  sanctions administered by the courts in which the litigation

  occurs.” Id.


  4 The CPA firm, for which Hellerstein was the principal, was also
  referenced in the complaint as one of the “Perfect Place defendants”
  whom Semler claimed conspired to obtain ownership of the parking
  spaces. All of these defendants were allegedly represented by
  Bewley.


                                      14
¶ 32   Even so, other courts have recognized additional bases for a

  viable conspiracy claim, such as when the attorney engages in

  fraud. See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871 (8th

  Cir. 2002); Marshall v. Fenstermacher, 388 F. Supp. 2d 536, 553

  (E.D. Pa. 2005); see also Astarte, Inc. v. Pac. Indus. Sys., Inc., 865 F.

  Supp. 693, 708 (D. Colo. 1994); Moore v. Weinberg, 644 S.E.2d 740,

  750 (S.C. Ct. App. 2007) (“[A]n attorney may be held liable for

  conspiracy where, in addition to representing his client, he

  breaches some independent duty to a third person.”) (citation

  omitted), aff’d, 681 S.E.2d 875 (S.C. 2009).

¶ 33   Here however, as discussed in Part IV above, Semler has

  neither pleaded facts to support a fraud claim nor alleged that

  Bewley acted for his own personal gain or otherwise acted outside

  the scope of his legal representation. See Doherty v. Am. Motors

  Corp., 728 F.2d 334, 339-40 (6th Cir. 1984) (concluding that the

  plaintiff did not present any evidence proving the existence of a

  conspiracy between the defendant and the defendant’s attorneys

  because the attorneys “were motivated not by personal concerns

  but by concerns for their clients”). To the contrary, Semler asserted

  that “at all times relevant” to the claims, Bewley was acting within


                                     15
  the scope of his representation of the Perfect Place defendants and

  his employment as an employee for defendant law firm Berenbaum

  Weinshienk. Thus, we leave for a different case the issue of

  deciding exactly what must be alleged to plead a viable claim

  against a lawyer for allegedly conspiring with the lawyer’s client.

  See Alexander v. Anstine, 152 P.3d 497, 499 (Colo. 2007) (“Because

  Anstine lacked standing to bring the aiding and abetting claim

  against the attorney defendants, we do not reach the second issue

  regarding whether an attorney can be held liable for aiding and

  abetting a breach of fiduciary duty to a non-client, . . . thereby

  leaving this issue for another day.”).

¶ 34   Therefore, we conclude that this allegation fails to state a

  claim upon which relief can be granted and should be dismissed.

                      B. Breach of Fiduciary Duty

¶ 35   Semler contends that Hellerstein, as treasurer of the

  Association, breached his fiduciary duty to Semler, a member of the

  Association, by engaging in self-serving and fraudulent conduct.

  We conclude that Semler has not stated such a claim.

¶ 36   Generally, determining the existence of a fiduciary duty is a

  question of fact; however, certain relationships may give rise to a


                                    16
  fiduciary duty as a matter of law. Mintz v. Accident & Injury Med.

  Specialists, PC, 284 P.3d 62, 68 (Colo. App. 2010), aff’d, 2012 CO

  50. Thus, we review such determinations de novo. Id.; see

  Command Commc’ns, Inc. v. Fritz Cos., Inc., 36 P.3d 182, 186 (Colo.

  App. 2001) (“The court determines as a matter of law the nature

  and scope of the duty owed by a fiduciary.”).

¶ 37   “[A] fiduciary relationship exists between two persons when

  one of them has undertaken a duty to act for or to give advice for

  the benefit of another on matters within the relationship’s scope.”

  Mintz, 284 P.3d at 68. Thus, generally, a homeowners’ association

  owes a fiduciary duty to its members. McShane v. Stirling Ranch

  Prop. Owners Ass’n, 2015 COA 48, ¶ 30 (cert. granted Jan. 11,

  2016). And, “[u]nder section 38-33.3-303(2)(a), [C.R.S. 2015,] ‘[i]f

  appointed by the declarant, in the performance of their duties, the

  officers and members of the executive board are required to exercise

  the care required of fiduciaries of the unit owners.’” Id. (quoting

  § 38-33.3-303(2)(a)). Accordingly, much like officers of a

  corporation, the board members of a homeowners’ association owe

  a fiduciary duty to both the association and its members. See

  Michaelson v. Michaelson, 939 P.2d 835, 841-42 (Colo. 1997); Van


                                    17
  Schaack Holdings, Ltd. v. Van Schaack, 867 P.2d 892, 897 (Colo.

  1994).

¶ 38   This duty, however, is not all encompassing. When acting on

  behalf of the association or in their official capacity as board

  members, or when engaging in transactions involving the

  association but in their individual capacities, that fiduciary duty

  exists and the board members are bound by it. But, when engaged

  in transactions with other association members or with members of

  the public at large, where those transactions are not conducted on

  behalf of the association and do not involve the association, there

  exists no fiduciary duty. See Mintz, 284 P.3d at 68-69 (“[W]here the

  parties are engaged in an arm’s-length business transaction

  without any special relationship of trust and confidence and

  without one party assuming a duty to act in the other party’s best

  interest, a fiduciary duty does not exist.”).

¶ 39   Here, Hellerstein was not acting in his role as treasurer when

  he engaged in the allegedly fraudulent conduct. And the

  Association was not involved in or affected by these transactions

  with Watson or Semler. Rather, these transactions involved

  individuals acting in their individual capacities and were unrelated


                                     18
  to the interests of the Association. We are not persuaded that

  Hellerstein was bound by his fiduciary duties when acting wholly

  outside the scope of his board position.

¶ 40   Therefore, under the circumstances here, Hellerstein did not

  owe a fiduciary duty to Semler. Accordingly, we conclude that

  Semler has failed to state a claim upon which relief can be granted.

            C. Aiding and Abetting Breach of Fiduciary Duty

¶ 41   Semler contends that Bewley aided and abetted Hellerstein in

  breaching his fiduciary duty. Because we have concluded that

  Hellerstein did not owe Semler a fiduciary duty under these

  circumstances, Bewley could not, as a matter of law, have aided

  and abetted him in breaching it. Therefore, we conclude that

  Semler has failed to state a claim upon which relief can be granted.

                         D. Negligent Supervision

¶ 42   Semler contends that Bewley’s law firm, Berenbaum

  Weinshienk, negligently supervised Bewley, which caused Semler to

  have to litigate his rights to the parking spaces in the quiet title

  action. Again, we conclude that Semler has not stated a viable

  claim.




                                     19
¶ 43   An employer may be directly liable for its negligent supervision

  of an employee where “(1) the defendant owed the plaintiff a legal

  duty to supervise others; (2) the defendant breached that duty; and

  (3) the breach of the duty caused the harm that resulted in

  damages to the plaintiff.” Settle v. Basinger, 2013 COA 18, ¶ 23.

  To determine whether the employer owed a duty to a particular

  plaintiff, we consider “the risk involved, the foreseeability and

  likelihood of injury as weighed against the social utility of the

  actor’s conduct, the magnitude of the burden of guarding against

  injury or harm, and the consequences of placing the burden upon

  the actor.” Id. at ¶ 25.

¶ 44   The duty arises only where the employer has reason to know

  that the employee is likely to harm others “because of ‘his [or her]

  qualities’ and ‘the work or instrumentalities entrusted to him [or

  her].’” Id. at ¶ 26 (quoting Destefano v. Grabrian, 763 P.2d 275, 287

  (Colo. 1988)) (emphasis omitted); see Keller v. Koca, 111 P.3d 445,

  450 (Colo. 2005) (“[I]n order for a duty of care to exist, there must

  be a connection between the employer’s knowledge of the

  employee’s dangerous propensities and the harm caused.”). The

  connection between the employer’s knowledge and the employee’s


                                     20
  dangerous propensities is crucial to establishing a duty. Keller, 111

  P.3d at 450.

¶ 45   For the reasons we have stated with respect to each claim thus

  far, Semler has not alleged any tortious conduct by Bewley, let

  alone conduct about which his employer knew and negligently

  failed to prevent. Therefore, we conclude that Semler has failed to

  state a claim upon which relief can be granted.

                          E. Vicarious Liability

¶ 46   Semler also contends that Berenbaum Weinshienk is

  vicariously liable for the tortious acts of Bewley, who was, at all

  times, acting within the scope of his employment. We disagree.

¶ 47   Vicarious liability is a special form of secondary liability

  whereby an employer is liable for the torts of its employees when

  they are acting within the scope of their employment. First Nat’l

  Bank of Durango v. Lyons, 2015 COA 19, ¶ 36; Stokes v. Denver

  Newspaper Agency, LLP, 159 P.3d 691, 693 (Colo. App. 2006). In

  order to find the employer liable, the court must first find the

  employee liable. See Arnold By & Through Valle v. Colo. State Hosp.,

  Dep’t of Insts., 910 P.2d 104, 107 (Colo. App. 1995).




                                    21
¶ 48   Again, here, Semler has failed to allege any actionable tortious

  conduct committed by Bewley and, thus, there is no conduct for

  which Bewley’s employer could be vicariously liable.

                          F. Breach of Contract

¶ 49   Finally, Semler contends that Berenbaum Weinshienk

  breached its contract with the Association by allowing Bewley to

  represent one Association member against another.

¶ 50   Semler alleges that the president of the Association “instructed

  Bewley that neither he nor Berenbaum Weinshienk was to

  represent the . . . Association against any member of the . . .

  Association or to represent one member . . . against another” and

  that Bewley agreed to those terms. Based solely on the pleading

  allegations, we cannot conclude that this “instruction” was not a

  contract of which Semler was an intended beneficiary.

¶ 51   Generally, an individual who is not a party to the contract may

  not assert a claim for breach of that contract. See Parrish

  Chiropractic Ctrs., P.C. v. Progressive Cas. Ins. Co., 874 P.2d 1049,

  1056 (Colo. 1994). One exception to this general rule, however, is

  in the case of third-party beneficiaries. See id.; Smith v. TCI

  Commc’ns, Inc., 981 P.2d 690, 693 (Colo. App. 1999). “A third-party


                                    22
  beneficiary may enforce a contract only if the parties to that

  contract intended to confer a benefit on the third party when

  contracting; it is not enough that some benefit incidental to the

  performance of the contract may accrue to the third party.” Everett

  v. Dickinson & Co., 929 P.2d 10, 12 (Colo. App. 1996).

¶ 52   Here, as a member of the Association, Semler is arguably a

  third-party beneficiary of this agreement between Bewley and the

  Association. From the facts Semler has alleged, the intent of any

  agreement may have been to protect Association members.

  However, this question may be illuminated by evidence once the

  case goes beyond the pleading stage. See Parrish, 874 P.2d at 1056

  (“While the intent to benefit the non-party need not be expressly

  recited in the contract, the intent must be apparent from the terms

  of the agreement, the surrounding circumstances, or both.”).

¶ 53   We also conclude that Baker v. Wood, Ris & Hames,

  Professional Corp., 2016 CO 5, does not require a different result.

  In Baker, the plaintiffs, devisees of a testator’s estate, alleged that

  the attorney representing the testator had failed to properly advise

  the testator and the devisees (as intended third-party beneficiaries)

  thus frustrating the testator’s intent to treat all devisees equally.


                                     23
  The supreme court reaffirmed the strict privity rule and held that

  an attorney’s liability to a nonclient, for work performed on behalf of

  a client, is limited to “circumstances in which the attorney has

  committed fraud or a malicious or tortious act, including negligent

  misrepresentation.” Id. at ¶ 35.

¶ 54      Unlike in Baker, Semler has not alleged in his breach of

  contract claim that the breach occurred because the legal work

  performed by Bewley for either the Association or the Perfect Place

  defendants was deficient. Instead, Semler alleges that Bewley’s

  representation of the Perfect Place defendants in their attempt to

  acquire the parking spaces breached the contract between Bewley

  and the Association because those defendants’ interests were

  adverse to Semler’s. This difference undercuts the policy

  considerations identified in Baker as supporting the strict privity

  rule.

¶ 55      Therefore, we conclude that Semler has sufficiently pleaded a

  third-party beneficiary breach of contract claim under C.R.C.P.

  12(b)(5). Accordingly, we remand the case to the trial court for

  further proceedings on this claim.




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                            VI. Attorney Fees

¶ 56   Following its dismissal of Semler’s action, the court awarded

  defendants their attorney fees under section 13-17-201, C.R.S.

  2015. Semler contends that if we reverse the dismissal order, this

  award must necessarily be reversed. We agree in part.

¶ 57   Section 13-17-201 provides:

            In all actions brought as a result of . . . the tort
            of any other person, where any such action is
            dismissed on motion of the defendant prior to
            trial under rule 12(b) of the Colorado rules of
            civil procedure, such defendant shall have
            judgment for his reasonable attorney fees in
            defending the action.

  An award for fees under this statute is appropriate where the entire

  action, not just some of the claims, is dismissed. See State v.

  Golden’s Concrete Co., 962 P.2d 919, 925 (Colo. 1998); Dubray v.

  Intertribal Bison Coop., 192 P.3d 604, 606-07 (Colo. App. 2008). A

  division of this court has further concluded that the statute applies

  separately to each defendant. Smith v. Town of Snowmass Vill., 919

  P.2d 868, 873-74 (Colo. App. 1996). Thus, so long as all claims

  against a single defendant were dismissed, even though claims

  against other defendants may survive C.R.C.P. 12(b) motions, that

  defendant may recover under the statute. Id.


                                    25
¶ 58   Here, we have concluded that only Semler’s breach of contract

  claim survives C.R.C.P. 12(b) dismissal. Thus, because that claim

  was not pleaded against the Perfect Place defendants, we leave the

  attorney fees award to them undisturbed. See Jaffe v. City & Cty. of

  Denver, 15 P.3d 806, 813-14 (Colo. App. 2000). But the fees award

  under this statute to Bewley and Berenbaum Weinshienk cannot

  stand, and we reverse that portion of the court’s order. See Sotelo

  v. Hutchens Trucking Co., 166 P.3d 285, 287 (Colo. App. 2007) (“[A]

  defendant may not recover attorney fees under § 13-17-201 when

  (1) the plaintiff’s action includes both tort and nontort claims and

  (2) the defendant has obtained dismissal of the tort claims, but not

  of the nontort claims, under C.R.C.P. 12(b).”).

                       VII. Appellate Attorney Fees

¶ 59   Berenbaum Weinshienk and Bewley have requested appellate

  attorney fees under C.A.R. 39.1.5 Because those defendants were

  only partially successful on appeal and because we have concluded

  that they are not entitled to their trial court attorney fees under

  section 13-17-201, we further conclude that they are not entitled to

  5The Perfect Place defendants have not requested appellate
  attorney fees.


                                    26
  appellate attorney fees. See In re Marriage of Roddy, 2014 COA 96,

  ¶ 32; Mullins v. Med. Lien Mgmt., Inc., 2013 COA 134, ¶ 58; cf.

  Dubray, 192 P.3d at 608.

                             VIII. Conclusion

¶ 60   We affirm the trial court’s order, albeit partially on different

  grounds, dismissing all of Semler’s claims except as to his claim for

  breach of contract. We remand the case to the trial court for

  further proceedings on this claim alone. And we affirm the trial

  court’s order awarding attorney fees to the Perfect Place defendants,

  but we reverse the award of attorney fees to the remaining

  defendants.

       JUDGE WEBB and JUDGE PLANK concur.




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