COLORADO COURT OF APPEALS                                         2016COA143

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

            Prior Opinion Announced August 4, 2016, WITHDRAWN
           Perfect Place Defendants’ Petition for Rehearing GRANTED

                       All Other Petitions for Rehearing DENIED

                             Announced October 6, 2016


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

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

Wheeler Trigg O’Donnell LLP, Carolyn J. Fairless, Kendra N. Beckwith, 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. 2016.
¶1    Plaintiff, R. Parker Semler, appeals from the trial court’s order

 granting defendants’, Bruce S. Hellerstein; Perfect Place, LLC; Bruce

 S. Hellerstein, CPA P.C.; Charles Bewley; and Berenbaum

 Weinshienk, P.C., motions to dismiss 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.

 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, PC.

 At all relevant times, Bewley represented Hellerstein and his two

 corporate entities.

¶3    In a related quiet title action, Perfect Place asked the court to

 determine that it was the rightful owner of parking spaces C, D, and

 E. According to Semler, he had acquired title to parking space C


                                    1
 over seven years ago. He also acquired title to parking space D

 through a deed of trust and significant consideration. Perfect Place

 asserted that it had acquired title to all three parking spaces via

 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 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    In a separate action, Semler filed a complaint, which was later

 amended, alleging breach of fiduciary duty against Hellerstein,

 aiding and abetting that breach against Bewley, and civil conspiracy

 against all defendants. Defendants filed two motions to dismiss,

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

 Soon thereafter, Semler moved to amend his complaint a second

 time, adding 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




                                    2
 suffered as a result of having to defend against the quiet title

 action.1

¶6    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

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

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

 disagree.

¶8    “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.”

¶9    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


 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.


                                     3
  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), as modified on denial of reh’g (Oct. 25, 2007).

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

  and Semler made the same arguments in his postjudgment motion

  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.

¶ 11   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

  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).


                                     4
  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).

¶ 12   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

  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

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

  motion for leave to amend his complaint.

¶ 14   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.




                                    5
¶ 15   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

  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.

¶ 16   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 Mr. 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


                                     6
  consider the second amended complaint when ruling on the motion

  to dismiss. Defendants acknowledge this in their answer brief.

¶ 17   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.

                                IV. Standing

¶ 18   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.

¶ 19   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



                                      7
  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.”).

¶ 20   Here the fraud, concealment, and misrepresentation claims

  are all premised on conversations and transactions between Mr.

  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).

¶ 21   Semler alleges that he suffered lost income opportunity

  damages as a result of defendants’ fraudulent conduct because he


                                        8
  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

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

  unforeseeable to be recoverable. See id. at 658; Roberts v. Holland

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

¶ 22   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)

¶ 23   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.


                                    9
  City & Cty. of Denver, 122 P.3d 1010, 1013 (Colo. App. 2005)

  (“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.”).

¶ 24   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)).

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

  claim upon which relief could be granted when “it appears beyond a


                                    10
  doubt that a plaintiff can prove no set of facts in 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.”).

¶ 26   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 we do not apply the Warne standard, we reject Semler’s
  request to remand and allow him to amend yet again in an effort to
  satisfy the new standard.


                                    11
                            A. Civil Conspiracy

¶ 27   Semler contends that defendants conspired with each other to

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

  is not entitled to relief on a civil conspiracy claim.

¶ 28   Conspiracy requires “(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)).

¶ 29   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


                                     12
  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.

¶ 30   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 has also 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”
  who Semler claimed conspired to obtain ownership of the parking
  spaces. All of these defendants were allegedly represented by
  Bewley.


                                     13
¶ 31   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 (2009).

¶ 32   Here however, as stated in supra Part IV, Semler has neither

  pleaded facts to support a fraud claim nor has he 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


                                     14
  the scope of his representation of the Perfect Place defendants and

  his employment as an employee for defendant law firm Berenbaum

  Weinshienk. Thus, we defer 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.”).

¶ 33   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

¶ 34   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 disagree.

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

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

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


                                     15
  Specialists, PC, 284 P.3d 62, 68 (Colo. App. 2010), as modified on

  denial of reh’g (Feb. 24, 2011), 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.”).

¶ 36   “[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, Inc., 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


                                    16
  Schaack Holdings, Ltd. v. Van Schaack, 867 P.2d 892, 897 (Colo.

  1994).

¶ 37   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.”).

¶ 38   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, unrelated to the


                                     17
  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.

¶ 39   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 could be

  granted.

             C. Aiding and Abetting Breach of Fiduciary Duty

¶ 40   Semler contends that Bewley aided and abetted Hellerstein in

  breaching his fiduciary duty. We disagree.

¶ 41   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

  Winshienk, negligently supervised Bewley, which caused Semler to

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

  action. We disagree.


                                     18
¶ 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 only arises 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), as modified on denial of reh’g May 16, 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


                                     19
  employer’s knowledge and the employee’s 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,

  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).




                                    20
¶ 48   Again, here, Semler has failed to allege any tortious conduct

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

  Bewley’s employer could be vicariously liable.

¶ 49   Therefore, we conclude that Semler has failed to state a claim

  upon which relief can be granted.

                          F. Breach of Contract

¶ 50   Finally, Semler contends that Berenbaum Weinsheink

  breached its contract with the Association by allowing Bewley to

  represent one Association member against another.

¶ 51   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 consider this “instruction” as a contract of which

  Semler was an intended beneficiary.

¶ 52   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


                                    21
  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

  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., Inc., 929 P.2d 10, 12 (Colo. App. 1996).

¶ 53   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.”).

¶ 54   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


                                     22
  the testator and the devisees — as intended third-party

  beneficiaries — thus frustrating the testator’s intent to treat all

  devisees equally. 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.

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

  contract claim that the breach occurred because the legal work

  performed by Bewely 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.

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

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




                                     23
  12(b)(5). Accordingly, we remand the case to the trial court for

  further proceedings on this claim.

                            VI. Attorney Fees

¶ 57   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.

¶ 58   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), as modified

  on denial of reh’g June 22, 1998; Dubray v. Intertribal Bison Co-op.,

  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. Snowmass Vill., 919 P.2d 868, 873-74 (Colo.

  App. 1996). Thus, so long as all claims against a single defendant


                                    24
  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.

¶ 59   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., Inc., 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

¶ 60   Berenbaum Weinshienk, Bewley, and Perfect Place have

  requested appellate attorney fees under C.A.R. 39.1. Because

  Berenbaum Weinshienk and Bewley were only partially successful

  on appeal and because we have concluded that they are not entitled


                                   25
  to their trial court attorney fees under section 13-17-201, we

  further conclude that they are not entitled to appellate attorney

  fees. See In re Marriage of Roddy & Betherum, 2014 COA 96, ¶ 32;

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

  192 P.3d at 608.

¶ 61   The Perfect Place defendants filed a Joinder in the Berenbaum

  Defendants’ Answer Brief and requested their attorney fees on

  appeal under C.A.R. 39.5.5 Because we have affirmed the trial

  court’s dismissal of all claims against the Perfect Place defendants

  and the award of fees to those defendants in the trial court, we

  conclude that the Perfect Place defendants are entitled to recover

  their appellate attorney fees. See Kreft v. Adolph Coors Co., 170

  P.3d 854, 859 (Colo. App. 2007).

¶ 62    On remand the trial court shall determine what amount of

  appellate attorney fees the Perfect Place defendants should be

  awarded.

                            VIII. Conclusion


  5C.A.R. 39.5 was renumbered to C.A.R. 39.1 and amended effective
  June 9, 2016. There were no substantive changes made that would
  be applicable here.


                                     26
¶ 63   We affirm the trial court’s order, albeit partially on different

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

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

  further proceedings on this one claim and for the trial court to

  determine the amount of any appellate attorney fees to which the

  Perfect Place defendants are entitled. And we affirm the trial court’s

  order awarding attorney fees to the Perfect Place defendants, but

  reverse the award of attorney fees to the remaining defendants.

       JUDGE WEBB and JUDGE PLANK concur.




                                    27
