COLORADO COURT OF APPEALS                                      2016COA114

Court of Appeals No. 15CA1755
Adams County District Court No. 13CV31426
Honorable Frederick M. Goodbee, Judge


Ellyn Rucker,

Petitioner-Appellant,

v.

Federal National Mortgage Association and Heter and Company, Inc.,

Respondents-Appellees.


                               ORDER AFFIRMED

                                   Division A
                            Opinion by JUDGE FOX
                        Hawthorne and Berger, JJ., concur

                            Announced July 28, 2016


The Frickey Law Firm, P.C., Howard Flicker, Eric B. Ballou, Lakewood,
Colorado, for Petitioner-Appellant

The Waltz Law Firm, Richard A. Waltz, Christopher R. Reeves, Denver,
Colorado, for Respondent-Appellee Federal National Mortgage Association

Law Offices of Skrabo & Atkins, Randee L. Stapp, Greenwood Village, Colorado,
for Respondent-Appellee Heter and Company, Inc.
¶1    In this C.A.R. 4.2 interlocutory appeal, plaintiff, Ellyn Rucker

 (Ellyn),1 seeks review of the trial court orders holding that she was a

 trespasser under the Premises Liability Act (PLA). She argues that

 the court erred in concluding that she was not an invitee under the

 PLA based on the “For Sale” sign at a house where she tripped and

 fell on the pathway to the house. We grant Ellyn’s petition and

 affirm the trial court’s orders.

                             I. Background

¶2    In June 2011, Kristin Rucker (Kristin), Ellyn’s daughter, was

 interested in moving to a new home in Denver. Because of her

 financial circumstances, Kristin could not afford to buy a home.

 Her father, David Rucker (David),2 agreed that he would purchase a

 home, and Kristin would rent it from him.

¶3    On the morning of June 5, 2011, David submitted a written

 offer on a house in Adams County, Colorado. The house was an

 unoccupied foreclosure acquisition owned by defendant, Federal

 National Mortgage Association (FNMA). Defendant, Heter and

 Company, Inc. (Heter), was FNMA’s listing real estate broker.

 1 For purposes of clarity, we refer to Ellyn, her daughter Kristin,
 and her former husband David Rucker by their first names.
 2 David and Ellyn divorced in 1978.

                                    1
¶4    Heter had placed a “For Sale” sign in the house’s front yard,

 with the listing realtor’s name and phone number. Heter also

 affixed a white sign to the front door of the house. The sign stated

 “Warning” in English and Spanish in large print. In smaller print, it

 stated, in both languages, “Theft, Trespassing or Vandalism Will Be

 Prosecuted to the Full Extent Of the Law.” “Warning” was the only

 word which could be read from the street in front of the house.3

¶5    On the afternoon of June 5, 2011, Kristin and Ellyn drove to

 the house. A Heter realtor had shown Kristin the house before

 David submitted the offer, but Ellyn had not yet seen it. Neither

 Kristin nor Ellyn alerted FNMA or Heter of their visit or requested

 permission to enter the property.

¶6    Kristin and Ellyn parked in the house’s driveway. After Ellyn

 exited the vehicle, she walked through the gravel flower beds and

 maneuvered around shrubs to look in the windows of the house.

 Once Ellyn reached the front doorstep of the house, she began

 walking back to the driveway along the front pathway. She lost her




 3Our reference to the warning sign is provided for factual context
 only.
                                     2
 balance when she stepped on an uneven part of the sidewalk, fell,

 and suffered injuries.

¶7    Ellyn sued FNMA and Heter for the damages she suffered in

 her fall. She alleged that she was an invitee to the property under

 the PLA because the “For Sale” sign in the front yard constituted an

 “express or implied representation that the public is requested,

 expected, or intended to enter or remain on the premises.”

 § 13-21-115(5)(a), C.R.S. 2015. She also argued that she was an

 invitee because she was “a person who enter[ed] or remain[ed] on

 the land of another to transact business in which the parties are

 mutually interested.” Id.

¶8    In a written order on March 17, 2015, the trial court

 concluded that Ellyn was a trespasser. The court reasoned that the

 “For Sale” sign did not make Ellyn an invitee because she “never

 had the express consent of any ‘land owner’ to enter or remain on

 the Property” and the “‘For Sale’ sign did not qualify as an implied

 invitation to the public-at-large or more specifically to Ellyn to enter

 the subject property.” The court did not address, in that order,

 Ellyn’s second argument that she was an invitee because she was

 present with regard to a business transaction.

                                    3
¶9     Upon Ellyn’s request, the trial court certified its order for

  immediate appeal under C.A.R. 4.2. A division of our court,

  concluding the case was not ripe for interlocutory appeal, dismissed

  the appeal without prejudice on June 5, 2015. The division noted

  that Ellyn raised two issues (the business transaction and the “For

  Sale” sign issues) before the trial court and a third (the pathway

  issue) for the first time on appeal and that the trial court had only

  ruled on the “For Sale” sign issue.4

¶ 10   Before the trial court, Ellyn requested that the court

  reconsider her arguments concerning the business transaction and

  “For Sale” sign issues. In the “For Sale” sign section of her

  pleading, she contended that a paved pathway to a residential

  property’s front door created an express or implied representation

  that the public could enter the property. On July 21, 2015, the

  trial court ruled that Ellyn was not an invitee and rejected her

  business transaction and “For Sale” sign arguments.


  4 Ellyn’s pathway argument contends that a paved pathway to a
  residential property creates an implied representation that the
  public is requested, expected, or intended to enter or remain on the
  property. The pathway, warning sign, and business invitee
  arguments are not before this court and nothing we decide is
  intended to affect the trial court’s analysis of those issues.
                                     4
¶ 11   Then, Ellyn requested that the trial court rule on the pathway

  argument. On August 28, 2015, the court ruled against Ellyn on

  that argument.

¶ 12   Again, upon Ellyn’s request, on October 5, 2015, the trial

  court certified the issues relating to the “For Sale” sign and the

  paved pathway for interlocutory appeal under C.A.R. 4.2. However,

  the trial court declined to certify the business transaction argument

  for interlocutory appeal.

¶ 13   In this appeal, Ellyn sought review of the business transaction

  and “For Sale” sign issues. In an earlier order, we limited our

  interlocutory review to the “For Sale” sign issue because the trial

  court declined to certify the business transaction issue for

  interlocutory appeal. We also concluded that we would not address

  the pathway issue because Ellyn did not seek review of it.

¶ 14   We exercise our discretion pursuant to C.A.R. 4.2 to review

  Ellyn’s contention that she was an invitee under PLA section

  13-21-115(5)(a) because the “For Sale” sign constituted an “express

  or implied representation that the public is requested, expected, or

  intended to enter” the property.



                                     5
                    II. The “For Sale” Sign Argument

¶ 15   Ellyn contends that she is an invitee because she entered the

  property in response to an implied representation by FNMA that the

  “For Sale” sign indicated that the public was requested, expected, or

  intended to enter.5 We disagree.

                         A. Standard of Review

¶ 16   The trial court’s determination of the plaintiff’s PLA

  classification is a mixed factual and legal question. Legro v.

  Robinson, 2015 COA 183, ¶ 15. We will disturb the trial court’s

  findings of fact only if they are clearly erroneous and unsupported

  by the record. Id. We review de novo the court’s application of the

  facts to the governing legal standards. Id.

¶ 17   Here we must interpret section 13-21-115(5)(a). Statutory

  interpretation presents a question of law that we review de novo.

  Corder v. Folds, 2012 COA 174, ¶ 7.




  5 We do not address Ellyn’s contention that she had a greater
  interest in being on the property than the public because David had
  made an offer on the house and Kristin was interested in living in it.
  This argument relates to the business transaction issue, which is
  not at issue here.
                                     6
                       B. Statutory Interpretation

¶ 18   In construing a statute, we ascertain and effectuate the

  General Assembly’s intent. In re Miranda, 2012 CO 69, ¶ 9. We

  apply the plain meaning of the statutory language, give consistent

  effect to all parts of a statute, and construe each provision in

  harmony with the overall statutory design. Id. If the statutory

  language is ambiguous, we employ additional tools of statutory

  construction. Id. We avoid interpretations that would produce

  absurd results. Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 12.

                            C. Applicable Law

¶ 19   The PLA’s central purpose is to determine private landowners’

  liability to persons entering their land based on whether the entrant

  is an invitee, a licensee, or a trespasser. § 13-21-115(1.5); Legro,

  ¶ 19. The PLA defines invitee, licensee, and trespasser as follows:

             (a) “Invitee” means a person who enters or
             remains on the land of another to transact
             business in which the parties are mutually
             interested or who enters or remains on such
             land in response to the landowner’s express or
             implied representation that the public is
             requested, expected, or intended to enter or
             remain.

             (b) “Licensee” means a person who enters or
             remains on the land of another for the

                                     7
             licensee’s own convenience or to advance his
             own interests, pursuant to the landowner’s
             permission or consent. “Licensee” includes a
             social guest.

             (c) “Trespasser” means a person who enters or
             remains on the land of another without the
             landowner’s consent.

  § 13-21-115(5). The trial court determines the status of the plaintiff

  at the time of injury. See generally § 13-21-115(4); Legro, ¶ 15. A

  landowner’s duty toward a plaintiff is determined by the category in

  which the court places the plaintiff. § 13-21-115(3).

¶ 20   As stated above, no Colorado case has addressed whether a

  “For Sale” sign creates an express or implied representation for a

  plaintiff to enter a landowner’s property as an invitee.

                               D. Analysis

¶ 21   We conclude that “For Sale” signs, standing alone, do not

  create an implied representation to strangers to enter the private

  property of others. Ellyn does not argue that she had an express

  invitation, unrelated to the signage, to enter the house. Therefore,

  we only determine to what extent, if any, Ellyn had an implied

  invitation to enter the property.




                                      8
¶ 22   Ellyn argues that the trial court improperly required a

  landowner to provide an express representation of permission

  before a person can enter a property on which a “For Sale” sign is

  posted because the court required a person to first call the listing

  realtor to obtain permission to enter the property. We disagree.

  The trial court did not require that only a landowner’s express

  representation would allow Ellyn to enter the property.6

¶ 23   Ellyn next argues that the trial court erred by not concluding

  that FNMA impliedly represented that she could enter the property.

  The trial court relied on Wells v. Polland, 708 A.2d 34 (Md. Ct. Spec.

  App. 1998), and Coddington v. Federal National Mortgage

  Association, No. 3:12-CV-00481-AC, 2013 WL 4084071 (D. Or. Aug.

  9, 2013) (unpublished opinion), to hold that when a “For Sale” sign

  only contains the name and phone number of the listing realtor, the

  sign is not an implied representation for a person to enter the land.




  6 The court wrote that Ellyn did not have “express consent,” but we
  discuss “express representation” following the language of section
  13-21-115(5)(a), C.R.S. 2015. Ellyn, relying on Corder v. Folds,
  2012 COA 174, ¶¶ 15-16, argues that FNMA gave its “consent” for
  her to be on the property. But, Corder does not provide guidance in
  interpreting the meaning of invitee here.
                                    9
  Rather, the trial court held the sign is merely an invitation to call

  the realtor.

¶ 24   Ellyn argues that we should not rely on Wells or Coddington

  because neither case interpreted a statute like the PLA. Instead,

  she urges us to rely on Singleton v. Charlebois Construction Co., 690

  S.W.2d 845 (Mo. Ct. App. 1985), and Holcomb v. Colonial

  Associates, L.L.C., 597 S.E.2d 710 (N.C. 2004). We find Wells and

  Coddington persuasive.

¶ 25   While none of these cases deals with a statutory premises

  liability scheme, the common law definitions of “invitee” in Wells

  and Coddington are similar to Colorado’s statutory definition of that

  term. Compare § 13-21-115(5)(a), with Wells, 708 A.2d at 40

  (explaining that a plaintiff can become an invitee through “implied

  invitation”), and Coddington, 2013 WL 4084071, at *6 (explaining

  that a plaintiff is an invitee if the landowner expressly or impliedly

  led a visitor to “believe that [the landowner] intended visitors to use

  the premises for the purpose that the person is pursuing and that

  the use was in accordance with the intention or design for which

  the premises were adapted or prepared”) (citation omitted). In

  contrast, neither Singleton nor Holcomb interprets invitee similarly.

                                     10
  See Singleton, 690 S.W.2d at 847 (discussing business invitees

  only); Holcomb, 597 S.E.2d at 716 (discussing lawful visitors only).

¶ 26   In Wells, 708 A.2d at 37-38, the defendant, the exclusive

  listing agent for the property, had placed a “For Sale” sign in the

  front window of a beach house. The plaintiffs, who were interested

  in purchasing a beach house, decided to visit the property. Id.

  They did not contact anyone to seek permission or otherwise notify

  anyone of their intended visit. Id. After climbing a flight of stairs,

  they peered into the home through the windows, and as they turned

  to descend the stairs, the stairs collapsed, injuring them. Id.

¶ 27   The Wells court applied an objective approach to its analysis of

  whether there was an implied invitation. Id. at 40. The court

  stated such approach “gains its vitality from such circumstances as

  custom, the habitual acquiescence of an owner, the apparent

  holding out of premises for a particular use by the public, or the

  general arrangement or design of the premises.” Id. (citing Crown

  Cork & Seal Co. v. Kane, 131 A.2d. 470, 473 (Md. 1957)). The court

  distinguished mere acquiescence, which did not constitute an

  implied invitation, from direct or implied inducement, which did.



                                     11
  Id. In further rejecting that an implied invitation to enter the

  property existed, the court stated:

               It is unreasonable to suggest that every time
               an owner or real estate company places a ‘sale’
               sign outside a house, the owner or company
               [is] ‘inviting’ people to come in . . . . To hold
               otherwise would mean that anytime an owner
               puts a property up for sale and posts a simple
               ‘sale’ sign in front of the property, the public-
               at-large would be free to enter the property at
               anytime [sic] of the day or night with the
               benefit of being an invitee rather than a
               trespasser.

  Id. at 42.

¶ 28   We agree with this rationale. Rucker’s suggested construction

  would lead to unreasonable results not warranted by Colorado’s

  PLA. See Asphalt Specialties, Co., Inc. v. City of Commerce City, 218

  P.3d 741, 746 (Colo. App. 2009) (we will not interpret the law in

  such a way that leads to an absurd or unreasonable result).

¶ 29   In Coddington, 2013 WL 4084071, at *8, the court rejected the

  plaintiff’s argument that a “For Sale” sign served as an invitation for

  the public to enter the property as an invitee. Rather, the court

  found that the posting of a “For Sale” sign provided notice to anyone

  who saw the sign that the property was for sale and provided

  information about whom to contact to schedule a viewing. Id. In

                                      12
  addition, the Coddington court rejected the plaintiff’s argument that

  she had an implied invitation to enter the property absent evidence

  showing that the landowner customarily permitted potential buyers

  to enter the property without prior notice to the landowner, the

  plaintiff had knowledge of this custom, and the plaintiff relied on it

  when she entered the property. Id.

¶ 30   Ellyn argues we should determine whether all the

  circumstances objectively indicate that FNMA impliedly invited

  prospective buyers to enter the property. Under the reasoning in

  Wells and Coddington, we conclude there was no such implied

  representation.

¶ 31   As noted in the trial court order, nothing in the record

  indicates that FNMA had a custom of permitting people to enter the

  property unaccompanied by a realtor. In fact, Heter stated in

  depositions that prospective buyers were only allowed to enter

  properties by appointment and accompanied by a Heter realtor.

  Here, the posted “For Sale” sign, like that in Wells, simply indicated

  that the property was for sale and provided contact information for

  the listing agent. Other states that have addressed analogous

  scenarios conclude similarly. See, e.g., Wilkie v. Randolph Tr. Co.,

                                    13
  55 N.E.2d 466, 467-68 (Mass. 1944) (“For Sale” sign in window of

  property was not an invitation to enter onto the property, but

  instead was an invitation to contact the listing agent); Mortg.

  Comm’n Servicing Corp. v. Brock, 4 S.E.2d 669, 672 (Ga. Ct. App.

  1939) (property listing advertisement in newspaper was not an

  implied invitation for a reader to inspect the property without being

  accompanied by a listing agent representative).

¶ 32   Ellyn argues that Holcomb and Singleton stand for the

  proposition that when a house is for sale, a prospective home buyer

  is not a trespasser as a matter of law. These cases do not support

  that proposition.

¶ 33   In Singleton, 690 S.W.2d at 846, the plaintiff was injured when

  he entered a partially constructed home that had a “For Sale” sign

  in the front yard. The sign in Singleton, as here, simply gave the

  real estate company’s name and phone number. Id. No one else

  was present when the plaintiff entered the property. Id. However,

  there was testimony that the defendant had allowed prospective

  buyers to enter the property and the plaintiff was aware that other

  prospective buyers had visited the property unannounced and

  unaccompanied. Id. at 846-48. While the trial court did not

                                    14
  explicitly phrase it as such, this evidence established a custom

  which impliedly represented to plaintiff that he was invited to enter

  the property.

¶ 34   In Holcomb, 597 S.E.2d at 712-13, a company interested in

  buying property for redevelopment hired plaintiff to prepare a

  demolition estimate. When plaintiff visited the property to prepare

  the estimate, he fell and was injured when large dogs loose on the

  property lunged at him. Id. The Holcomb court concluded that

  plaintiff was not a trespasser, but a “lawful visitor,” because the

  owner had “placed a ‘For Sale’ sign on its property and had allowed

  buyers and their agents to inspect the property.” Id. at 715-16.

  While the trial court did not explicitly phrase it as such, this

  evidence established a custom which impliedly represented to

  plaintiff that he was invited to enter the property. Therefore,

  Holcomb is factually distinguishable. Here, there was no evidence

  that the buyers had any authority to inspect the premises without a

  real estate agent present. Moreover, the determination in Holcomb

  that plaintiff was a lawful visitor was premised on a jury verdict,

  whereas here we have a legal question presented.



                                     15
¶ 35   Finally, we will not address Ellyn’s contention that her status

  could have changed from trespasser to invitee or licensee once she

  was on the property because she raised this contention for the first

  time during oral argument. See Bd. of Cty. Comm’rs v. City of

  Greenwood Village, 30 P.3d 846, 849 (Colo. App. 2001).

¶ 36   Therefore, we conclude the trial court did not err in concluding

  that the “For Sale” sign did not constitute an implied representation

  to the public to enter or remain on the property, and, consequently,

  Ellyn was a trespasser.

                             III. Conclusion

¶ 37   The trial court’s order is affirmed.

       JUDGE HAWTHORNE and JUDGE BERGER concur.




                                    16
