COLORADO COURT OF APPEALS                                         2016COA171


Court of Appeals No. 15CA2085
Pueblo County District Court No. 14CV30856
Honorable Kimberly Karn, Judge


Lisa Maldonado and the Estate of Jacob Maldonado,

Plaintiffs-Appellants,

v.

Dennis Pratt and Karon Pratt, a/k/a Karen M. Pratt,

Defendants-Appellees.


                            JUDGMENT AFFIRMED

                                   Division II
                          Opinion by JUDGE HARRIS
                         Dailey and Furman, JJ., concur

                         Announced November 17, 2016


Earl & Earl, PLLC, Collin J. Earl, Ryan T. Earl, Colorado Springs, Colorado, for
Plaintiffs-Appellants

Nathan, Bremer, Dumm & Myers, P.C., Mark H. Dumm, Kaitlin M. Akers,
Denver, Colorado, for Defendants-Appellees
¶1    In this appeal, we must determine whether an amended

 complaint’s new claim against a new defendant, asserted after the

 statute of limitations has run, relates back to the date of the

 original complaint.

¶2    Plaintiffs Lisa Maldonado and the Estate of Jacob Maldonado

 (collectively, the Estate) sued Dennis Pratt II (Pratt Jr.) for wrongful

 death, in connection with Pratt Jr.’s fatal shooting of Jacob

 Maldonado (Maldonado). Months later, after the statute of

 limitations had run on any negligence claims, the Estate sought to

 amend its complaint to add a new claim under the Premises

 Liability Act against Pratt Jr.’s mother (Karen) and father Dennis

 Pratt (Pratt Sr.) (collectively, the Pratts). The Estate contended that

 it had recently learned that the Pratts, not Pratt Jr., owned the

 property where the shooting occurred.

¶3    We conclude, as the district court did, that the Pratts did not

 have timely notice of the original action. Accordingly, the amended

 complaint does not relate back to the original complaint and the

 Estate’s claim is time barred.

¶4    We therefore affirm the district court’s entry of judgment in

 favor of the Pratts.


                                     1
                           I.    Background

¶5    The Pratts and Pratt Jr. own adjacent properties in a rural

 area near Pueblo, Colorado. Pratt Jr. stored used car parts on his

 property, in a spot located about a quarter mile from his parents’

 house.

¶6    Pratt Jr. began to suspect that someone was stealing the car

 parts. On the night of October 16, 2012, he drove his truck to the

 storage area. When he saw beams from three flashlights

 approaching the area, he got out of his truck and fired his rifle in

 the direction of the lights, killing Maldonado.

¶7    A jury convicted Pratt Jr. of negligent homicide and he was

 sentenced to six years’ imprisonment.

¶8    On September 16, 2014, one month before the end of the

 limitations period, the Estate filed a wrongful death action against

 Pratt Jr., alleging a single claim of negligence based on his act of

 shooting Maldonado. The complaint was served on Pratt Jr. at the

 Department of Corrections (DOC), where he was serving his

 sentence.

¶9    On April 1, 2015, the Estate filed an amended complaint,

 retaining the wrongful death claim against Pratt Jr. but asserting


                                    2
  an additional claim against the Pratts under the Premises Liability

  Act (PLA), section 13-21-115, C.R.S. 2016. As the Estate later

  explained, the Pratts’ insurance company had conducted an

  investigation of the Estate’s claim against Pratt Jr. in January

  2015, and had determined that the property where the shooting

  occurred was owned by the Pratts, not by Pratt Jr.1

¶ 10   The Pratts filed a motion for judgment on the pleadings and/or

  for summary judgment, arguing that the two-year statute of

  limitations had run and, therefore, the claim against them was time

  barred.2 The Estate countered that, under C.R.C.P. 15(c), the

  amended complaint related back to the original complaint.

¶ 11   The district court disagreed, concluding that the Pratts did not

  have notice of the original lawsuit and, even if they had received

  1 In their reply brief, the Estate contends that the location of the
  shooting is a disputed issue of material fact. It does not appear
  from the record on appeal that the Estate ever alerted the district
  court to this supposed factual dispute, and we will not consider an
  issue raised for the first time in a reply brief on appeal. People v.
  Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990). In any event, we
  are not persuaded that the location of the shooting is a material
  fact; instead, the fact of consequence is that the Pratts owned the
  property where the shooting occurred, a point the Pratts appear to
  concede.
  2 The statute of limitations for a negligence claim under the PLA is

  two years. § 13-80-102(1)(a), C.R.S. 2016. The cause of action
  accrues on the date of death. § 13-80-108(1), C.R.S. 2016.

                                    3
  notice, they would not have expected that, but for a mistake in

  pleading, they would have been named as defendants in the

  wrongful death action. Accordingly, the district court granted the

  Pratts’ motion and entered judgment in their favor on the PLA

  claim.

                            II.   Discussion

¶ 12   On appeal,3 the Estate concedes that the statute of limitations

  for a PLA claim had already expired when it filed its amended

  complaint. But it contends that, under C.R.C.P. 15(c), the new




  3 The Pratts correctly point out in their answer brief that the
  Estate’s amended opening brief was filed one day late. Generally, it
  is within the discretion of the court whether to dismiss or proceed
  with an appeal when a brief is filed late. See C.A.R. 31(b);
  Wilkinson v. Motor Vehicle Div., 634 P.2d 1016 (Colo. App. 1981).
  The determination depends on the circumstances of the particular
  case. State ex rel. Dep’t of Corr. v. Pena, 788 P.2d 143, 147 (Colo.
  1990); Harris v. Reg’l Transp. Dist., 155 P.3d 583, 587 (Colo. App.
  2006). “In rare cases, conduct in prosecuting an appeal is so
  contrary to court rules and so disrespectful of the judicial process
  and the participants therein that the right to appellate review is
  forfeited.” Martin v. Essrig, 277 P.3d 857, 859-60 (Colo. App. 2011);
  see also Warren Vill. Inc. v. Bd. of Assessment Appeals, 619 P.2d 60
  (Colo. 1980) (appeal dismissed after opening brief filed months late);
  Wilkinson, 634 P.2d at 1017 (appeal dismissed for failure to file an
  opening brief after a fifteen-day extension). In our view, the eight-
  hour delay in filing the amended opening brief does not implicate
  the integrity of the judicial process and, as the parties have fully
  briefed the issues, we choose to reach the merits of this case.

                                    4
  claim against the Pratts related back to the date of the original

  wrongful death action and was therefore timely.

                        A.    Standard of Review

¶ 13   The Pratts’ motion was denominated a motion for judgment on

  the pleadings pursuant to C.R.C.P. 12(c) or, alternatively, a motion

  for determination of a question of law pursuant to C.R.C.P. 56(h).

  By considering evidence outside the pleadings, the court treated the

  motion as a motion under Rule 56. Shaw v. City of Colorado

  Springs, 683 P.2d 385, 387 (Colo. App. 1984). We review a trial

  court’s decision granting summary judgment de novo. Oasis Legal

  Fin. Grp., LLC v. Coffman, 2015 CO 63, ¶ 30.

¶ 14   Summary judgment is appropriate only if the pleadings and

  supporting documents demonstrate no genuine issue of material

  fact and the moving party is entitled to judgment as a matter of law.

  C.R.C.P. 56(c); Laughman v. Girtakovskis, 2015 COA 143, ¶ 8. In

  determining whether summary judgment is proper, a court grants

  the nonmoving party any favorable inferences reasonably drawn

  from the facts and resolves all doubts in favor of the nonmoving

  party. Cikraji v. Snowberger, 2015 COA 66, ¶ 16.




                                    5
¶ 15   We also review de novo a trial court’s interpretation of a rule of

  civil procedure. City & Cty. of Broomfield v. Farmers Reservoir &

  Irrigation Co., 239 P.3d 1270, 1275 (Colo. 2010).

               B.   Rule 15(c) and the Relation-Back Test

¶ 16   A new claim or defense asserted in an amended pleading

  against the existing party or parties relates back to the date of the

  original pleading so long as the new claim or defense arises out of

  the same conduct, transaction, or occurrence. C.R.C.P. 15(c).

¶ 17   But when the amended pleading seeks to add a new party —

  not simply a new claim against an existing party — Rule 15 adds

  two additional requirements, both focused on notice to the new

  party: first, the new party must have received such notice of the

  action within the period provided by C.R.C.P. 4(m) for serving the

  summons and complaint that he would not be prejudiced, and,

  second, having received such notice, the new party must have

  known or reasonably should have known that, but for a mistake

  concerning the identity of the proper party, the action would have

  been brought against him or her. Id.4


  4 This provision of C.R.C.P. 15(c) concerns amendments “changing
  the party against whom a claim is asserted . . . .” Like most courts

                                     6
¶ 18   Under modern pleading rules, requests to amend should be

  freely granted and liberally construed. Eagle River Mobile Home

  Park v. Dist. Court, 647 P.2d 660 (Colo. 1982). Rule 15(c) is a

  remedial tool that reflects a balance between this policy of liberally

  permitting amendments and ensuring the reliable application of

  statutes of limitation. Goodman v. Praxair, Inc., 494 F.3d 458,

  467-68 (4th Cir. 2007);5 Chaplake Holdings, LTD v. Chrysler Corp.,

  766 A.2d 1, 7 (Del. 2001). By focusing on notice to the new party

  and the amendment’s effect on the new party, Rule 15(c) promotes

  the administration of justice by allowing cases to be decided on the

  merits, rather than on mere technicalities, Pan v. Bane, 141 P.3d

  555, 559 (Okla. 2006), and, when appropriate, also gives



  that have addressed the scope of the provision, we conclude that it
  applies as well to amendments adding a party. See Lundy v.
  Adamar of N.J., Inc., 34 F.3d 1173, 1192 n.13 (3d Cir. 1994)
  (Becker, J., concurring in part and dissenting in part) (collecting
  cases); see also 6A Charles Alan Wright & Arthur R. Miller, Federal
  Practice and Procedure § 1498.2 (3d ed. updated 2016) (“Many
  courts have liberally construed the rule to find that amendments
  simply adding or dropping parties, as well as amendments that
  actually substitute defendants, fall within the ambit of the rule.”).
  5 When a state rule is similar to a Federal Rule of Civil Procedure,

  courts may look to federal authority for guidance in construing the
  state rule. Benton v. Adams, 56 P.3d 81, 86 (Colo. 2002). The
  federal rule has always been substantially similar to our rule and
  the current version is nearly identical to C.R.C.P. 15.

                                     7
  defendants “predictable repose from claims after the passage of a

  specified time,” Goodman, 494 F.3d at 468-70.

¶ 19    In light of these interests, notice is considered the touchstone

  of Rule 15(c) and is “strictly required.” Currier v. Sutherland, 215

  P.3d 1155, 1161 (Colo. App. 2008), aff’d, 218 P.3d 709 (Colo. 2009);

  see also Graves v. Gen. Ins. Corp., 412 F.2d 583, 585 (10th Cir.

  1969) (the addition or substitution of parties who had no notice of

  the original action is “not allowed”). Notice “serves as a yardstick

  for evaluating whether or not amending the complaint will cause

  the new defendant to suffer prejudice if he or she is forced to defend

  the case on the merits.” Lacedra v. Donald W. Wyatt Det. Facility,

  334 F. Supp. 2d 114, 129 (D.R.I. 2004). Thus, an amendment is

  permitted to relate back only where a new party had timely

  knowledge of the original action and the original complaint provided

  fair and adequate notice of the new claim in the amended

  complaint. See Currier, 215 P.3d at 1162.

   C.   Did The Pratts Have Notice of the Original Lawsuit Within the
                    Period Prescribed by C.R.C.P. 4(m)?

¶ 20    The Pratts concede that the Estate’s PLA claim arises out of

  the same conduct, transaction, or occurrence as the negligence



                                     8
  claim asserted against Pratt Jr. in the original complaint. But they

  argue that the Estate cannot satisfy elements two or three of the

  relation-back test: notice within the prescribed period and

  knowledge that they should have been defendants in the lawsuit.

  We agree that the Estate failed to demonstrate a genuine factual

  dispute regarding whether the Pratts had notice of the original

  lawsuit within the prescribed time period.

¶ 21   An amendment will not relate back to the original complaint

  under Rule 15(c) unless the new party receives notice of the

  institution of the action within the period provided by Rule 4(m).6

  Cf. Garcia v. Schneider Energy Servs., Inc., 2012 CO 62, ¶ 13 (under

  Fed. R. Civ. P. 15, the phrase “within the period provided by Rule

  4(m) for serving the summons and complaint,” means that the new

  party must receive notice within a prescribed period after a

  complaint is filed); see Singletary v. Pa. Dep’t of Corr., 266 F.3d 186,

  194 (3d Cir. 2001) (this element of relation-back test requires both

  notice and absence of prejudice).


  6 Notice of “the institution of the action” means notice of the
  lawsuit, not notice of the events giving rise to the cause of action.
  Lundy, 34 F.3d at 1188 (Becker, J., concurring in part and
  dissenting in part).

                                      9
¶ 22   Under C.R.C.P. 4(m), the plaintiff must serve his summons

  and complaint within sixty-three days after the complaint is filed.

  The Estate filed its original complaint on September 16, 2014.

  Thus, to satisfy the second element of the test, the Estate had to

  show that, by November 18, 2014, the Pratts had notice of the

  action against Pratt Jr.

¶ 23   The district court found that there was no evidence that the

  Pratts had actual notice of the lawsuit before the end of the

  limitations period on October 16, 2014.7 Though the district court’s

  finding misconstrued the relevant date for purposes of Rule 15(c),

  the Estate did not offer any evidence to establish that the Pratts

  had actual notice of the complaint before November 18, 2014.



  7 The district court determined that the Pratts first learned of the
  lawsuit in January 2015, after Pratt Jr.’s lawyer contacted the
  Pratts’ insurance company seeking a determination of whether the
  Estate’s claim against Pratt Jr. was covered by the Pratts’ policy.
  The scant evidence submitted to the district court supports the
  court’s finding. On January 7, 2015, Pratt Jr.’s lawyer submitted a
  claim and a copy of the complaint to the Pratts’ insurance company
  for a determination of coverage. On January 19, 2015, having
  completed its investigation, the insurance company responded to
  Pratt Jr.’s lawyer with a denial of the claim, explaining that,
  although the shooting incident appeared to have occurred on the
  Pratts’ property, Pratt Jr. was not covered under the policy because
  he was not a resident of the Pratts’ household.

                                    10
¶ 24   Rather, the Estate argues that actual notice was not required

  because notice to Pratt Jr. could be imputed to the Pratts under the

  “identity of interest” doctrine. Parties have an identity of interest

  when they are “so closely related in their business operations or

  other activities that the institution of an action against one serves

  to provide notice of litigation to the other.” Spiker v. Hoogeboom,

  628 P.2d 177, 179 (Colo. App. 1981) (quoting 6 Charles Alan Wright

  & Arthur R. Miller, Federal Practice and Procedure § 1499, at 517

  (1971)).

¶ 25   Ordinarily, the identity of interest doctrine is applied to

  corporate parties: a parent and its subsidiary, for example, or

  related corporations whose officers, directors, or shareholders are

  substantially identical and who may have similar names or conduct

  their businesses from the same offices. 6A Charles Alan Wright &

  Arthur R. Miller, Federal Practice and Procedure § 1499 (3d ed.

  updated 2016); see also Brooks v. Isinghood, 584 S.E.2d 531, 543

  n.10 (W. Va. 2003) (identity of interest usually present between

  parent and subsidiary, related corporations, and co-executors of

  estate).




                                     11
¶ 26   Analogizing to cases of corporate misnomer, the Estate insists

  that notice to Pratt Jr. could be imputed to Pratt Sr. because they

  have the same name. But similarity of names alone is not

  meaningful. In the corporate misnomer context, the similarity

  matters because it emphasizes the interrelatedness of the corporate

  entities and helps to explain any error in identifying the proper

  party. The rationale does not apply to individuals: we do not

  typically presume that two people who happen to have the same

  name operate as one unit whose interests are aligned. And the

  Estate has never alleged any misidentification of proper parties

  based on the similarity of Pratt Jr. and Pratt Sr.’s names; rather, it

  asserts that, based on the police reports, it mistakenly believed that

  Pratt Jr. was the owner of the property where the shooting

  occurred.8 Cf. Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010)

  (plaintiff allowed to amend complaint to correctly identify carrier

  liable for her injury as Costa Crociere, instead of Costa Cruise).




  8In any event, the analogy to corporate misnomer cases does not
  apply even superficially to Karen, who was also named in the
  amended complaint as a defendant.

                                    12
¶ 27   The Estate also points to evidence that Pratt Jr. visited his

  parents frequently and that he and Pratt Sr. had common hobbies.

  But these facts also fail to demonstrate an identity of interest.

¶ 28   To be sure, under certain circumstances, notice can be

  imputed from a child to a parent (or vice versa) under an identity of

  interest theory. Courts have found an identity of interest between

  parents and their minor children who live at home. See Sadlowski

  v. Benoit, No. 9801859, 2008 WL 2745157 (Mass. Super. Ct. June

  26, 2008) (unpublished opinion) (parents and minor daughter had

  identity of interest such that findings in prior lawsuit prosecuted by

  parents were binding on daughter), aff’d, 917 N.E.2d 260 (Mass.

  App. Ct. 2009); Sulzen v. Williams, 977 P.2d 497, 501 (Utah Ct.

  App. 1999) (notice to parents could be imputed to minor children

  living at the home where service was effectuated). Courts have also

  recognized an identity of interest between a parent and child who

  share a lawyer or are covered under the same insurance policy. See

  Denver v. Forbes, 26 F.R.D. 614 (E.D. Pa. 1960) (minor daughter

  living at home and sharing same insurer as parents was

  substituted for mother after daughter was correctly identified as the

  driver of the car involved in an accident); Phillips v. Gieringer, 108


                                     13
  P.3d 889 (Alaska 2005) (notice imputed from father, who was the

  owner of the car, to son, who was the driver, where both were

  insured under the same policy); Pan, 141 P.3d 555 (minor daughter

  lived at home and shared same attorney and insurance company as

  her parents; thus, notice of the suit was imputed to her, as the

  actual driver and proper defendant in a case arising out of traffic

  accident).

¶ 29   In these cases, notice is attributed to the other person either

  because the insurance company or the lawyer has a duty to

  represent both parties’ interests, see, e.g., Phillips, 108 P.3d at

  894-95, or because the legal fates of the parent and child are so

  intertwined that they constitute one unit for purposes of the

  litigation, see Sadlowski, 2008 WL 2745157, at *4; see also

  Williams v. United States, 405 F.2d 234, 239 (5th Cir. 1968)

  (because liability of the minor would give rise to a liability of the

  parent, identity of interest between mother and child existed).

¶ 30   But here, Pratt Jr. was not a minor and he did not live with

  the Pratts. Prior to his incarceration, he lived with his wife and

  children in a separate residence. At the time he was served with

  the summons and complaint, he was in the custody of the DOC.


                                     14
  Pratt Jr. and the Pratts were not represented by the same lawyer or

  covered by the same insurance policy. And Pratt Jr. and the Pratts

  did not share the same legal position with respect to the claims

  asserted. See Penrose v. Ross, 71 P.3d 631, 636 (Utah Ct. App.

  2003) (father and son did not have identity of interest where

  defenses to claims were different and disposition as to father would

  not affect claim against son).

¶ 31   Imputing notice to one person based on actual notice to

  another is not the same as inferring that one person actually

  notified the other. See Jehly v. Brown, 2014 COA 39, ¶¶ 17-18

  (actual knowledge is distinct from imputed knowledge); see also In

  re Comp. of Muliro, 359 Or. 736, 747-48, ___ P.3d ___, ___ (2016)

  (imputed notice is not received by the party to whom it is imputed;

  instead, imputed notice is attributed to a person because it was

  received by someone with a duty to disclose). Though the Estate

  claims to be making an imputation argument, in actuality it urges

  us to assume from the circumstances that Pratt Jr. told his parents

  (or at least Pratt Sr.) about the lawsuit.

¶ 32   On summary judgment, we ordinarily give the nonmoving

  party the benefit of all favorable inferences reasonably drawn from


                                     15
  the undisputed facts. Brodeur v. Am. Home Assur. Co., 169 P.3d

  139, 146 (Colo. 2007). But here, the record is devoid of any facts

  concerning communications between Pratt Jr. and the Pratts from

  October 23, 2014, the date Pratt Jr. was served with the complaint,

  to November 18, 2014, the date by which the Pratts had to receive

  notice of the lawsuit under Rule 15(c). Nor did the Estate claim

  that disputed issues of fact regarding notice precluded summary

  judgment, see Montgomery v. U.S. Postal Serv., 867 F.2d 900, 904

  (5th Cir. 1989) (whether new party received notice within time

  prescribed by Rule 15(c) is fact question), or seek additional time to

  discover evidence concerning the Pratts’ notice of the lawsuit, see

  Sundheim v. Bd. of Cty. Comm’rs, 904 P.2d 1337, 1352 (Colo. App.

  1995) (“In order to avoid the precipitous and premature grant of

  judgment against the opposing party, C.R.C.P. 56(f) affords an

  extension of time to utilize discovery procedures to seek additional

  evidence before the trial court rules on a motion for summary

  judgment.”), aff’d, 926 P.2d 545 (Colo. 1996).

¶ 33   True enough, during the investigation by the Pratts’ insurance

  company, Pratt Jr.’s wife reported that, at around the time of the

  shooting, Pratt Jr. saw his parents every day. But the Estate’s


                                    16
  complaint alleged that Pratt Jr. was taken into custody on the day

  of the offense, October 16, 2012, and the record does not disclose

  any additional facts about Pratt Jr.’s contact with his parents

  during the two years preceding service of the complaint. We cannot

  reasonably infer that Pratt Jr. notified the Pratts of the lawsuit prior

  to November 18, 2014, based solely on his frequent visits to their

  home in 2012.

¶ 34   Accordingly, we agree with the district court that the Estate

  failed to satisfy the notice element of Rule 15(c)’s relation-back test.

  In light of this conclusion, we find it unnecessary to decide the

  additional question of whether the Pratts should have known that,

  absent a mistake, they would have been named as defendants in

  the original action.9

                             III.   Conclusion

¶ 35   We affirm the entry of summary judgment in favor of the

  Pratts.

       JUDGE DAILEY and JUDGE FURMAN concur.


  9By affirming on this ground, we do not mean to suggest that the
  district court erred in its conclusion that the original complaint
  would not have put the Pratts on notice of a PLA claim to be
  directed against them.

                                     17
