Background
Renee Sweet and Jeffrey Buske sued defendants 303 Construction Services, LLC and Brian Anthony Moore for various claims arising from repair work performed pursuant to a homeowner’s insurance claim. Plaintiffs asserted a civil theft claim and sought treble damages under section 18-4-405, C.R.S. 2025, demanding a jury trial in their complaint.
After defendants failed to respond, plaintiffs moved for and obtained a default judgment in the amount of $259,587.32. Defendants then moved to set aside the default judgment, alleging the damage claims were fraudulent. The district court vacated the default judgment as to the amount of damages only—not as to liability—and conducted a damages hearing. Following the hearing, the court entered judgment for plaintiffs in the reduced amount of $52,258.84.
Plaintiffs appealed and also filed a motion for postjudgment relief seeking an amendment of the judgment or alternatively a new trial. The district court summarily denied the postjudgment motion. Plaintiffs’ appellate brief was complicated by the fact that they failed to pay for hearing transcripts, which were therefore not included in the appellate record.
The Court’s Holding
The Colorado Court of Appeals affirmed the district court’s judgment and the order denying postjudgment relief. The court’s decision turned primarily on issues of appellate procedure and issue preservation. Of plaintiffs’ twelve contentions on appeal, the court found that nine had not been properly preserved for appellate review because plaintiffs failed to raise them before the final judgment was entered or because they conceded lack of preservation.
On the preserved issues, the court found no error. As to the civil theft claim, the court’s judgment clearly demonstrated that treble damages had been awarded. The court identified specific items allegedly stolen (cabinets, granite vanity, Bosch oven, window, doors, and tiles), calculated their value, and trebled that total to arrive at $29,247.36 in treble damages. The court rejected plaintiffs’ other substantive challenges, noting that they relied solely on reference to district court filings rather than developing arguments in their appellate brief, which violated appellate rules.
Regarding the request for appellate attorney fees, the court denied defendants’ motion. Although the opinion noted that plaintiffs’ arguments appeared frivolous, the court found that plaintiffs—appearing pro se—had not clearly known or reasonably should have known their appeal was frivolous. The court distinguished this case from a prior unpublished opinion in which plaintiff Sweet had been warned about frivolous litigation, noting that in the current appeal plaintiffs appeared to make a good faith effort to determine applicable law.
Key Takeaways
- Issues must be preserved before the final judgment is entered to be reviewable on appeal; arguments raised for the first time in postjudgment motions are waived and cannot be appealed.
- Treble damages under Colorado’s civil theft statute are properly applied by identifying specific stolen items, valuing them, and multiplying the total by three; the damages need not be separately awarded in a distinct damage category.
- Pro se litigants must comply with appellate procedural rules, including C.A.R. 57’s prohibition on incorporating prior district court filings by reference; courts will not locate and synthesize arguments on the litigants’ behalf.
- Appellate attorney fees against pro se litigants require a showing that they clearly knew or reasonably should have known their appeal was frivolous; a good faith attempt to determine applicable law may defeat such fee awards even if arguments ultimately fail.
Why It Matters
This decision reinforces Colorado’s strict appellate procedure requirements and demonstrates the significant consequences of failing to preserve issues at the trial court level. For practitioners, it illustrates how quickly claims can be lost on appeal through procedural missteps, particularly the importance of raising all substantive objections before judgment is entered rather than waiting to address them in postjudgment motions or appeals.
The opinion also provides guidance on treble damages awards in civil theft cases under section 18-4-405, clarifying that courts need not award such damages as a separate line item but may calculate them by identifying alleged thefts and multiplying their value. For pro se litigants, the case demonstrates both the high procedural bar they must clear and the court’s willingness to deny fee awards where there is evidence of good faith legal effort, even where arguments are ultimately unsuccessful.