Barton v. Law Offices of John W. McKendree

5 Citing cases

  1. Lasala v. Baker

    No. 22-1351 (10th Cir. Jul. 19, 2023)   Cited 1 times

    A dismissal under § 13-20-602 is not the same as a dismissal for failure to state a claim, because it rests on a separate, statutory ground. See Barton v. Law Offices of John W. McKendree, 126 P.3d 313, 314-15 (Colo.App. 2005). We review the district court's interpretation of the pertinent statute, § 13-20-602, de novo.

  2. Coleman v. United States

    No. 19-1162 (10th Cir. Feb. 26, 2020)   Cited 10 times
    In Coleman v. United States, 803 Fed.Appx. 209, 212-15 (10th Cir. 2020), a panel of this court vacated the district court's dismissal order and remanded for further consideration of (1) whether expert testimony was required for Mr. Coleman to establish a prima facie case, (2) whether dismissal, if warranted, should be for failure to state a claim upon which relief can be granted, and (3) whether dismissal, if warranted, should be with or without prejudice.

    The Colorado Court of Appeals has held that "Section 13-20-602 sets forth a special statutory ground for dismissal, separate from that of C.R.C.P. 12(b)(5) ([dismissal for failure to state a claim])." Barton v. Law Offices of John W. McKendree, 126 P.3d 313, 314-15 (Colo. App. 2005). Thus, dismissal under the certificate statute does not constitute dismissal for failure to state a claim.

  3. Falcon Broadband, Inc. v. Banning Lewis Ranch Metro. Dist. No. 1

    474 P.3d 1231 (Colo. App. 2018)   Cited 8 times

    Nor does it apply if the court doesn't dismiss all the tort claims against a certain defendant or "if an action contains both tort and non-tort claims and the defendant obtains C.R.C.P 12(b) dismissal of only the tort claims." Dubray v. Intertribal Bison Coop. , 192 P.3d 604, 607 (Colo. App. 2008) ; see also Barton v. Law Offices of John W. McKendree , 126 P.3d 313, 314 (Colo. App. 2005) (no recovery where one of the tort claims was dismissed for failure to file a certificate of review); First Interstate Bank of Denver, N.A. v. Berenbaum , 872 P.2d 1297, 1302 (Colo. App. 1993) (no recovery where one of the tort claims was disposed of on summary judgment). In other words, for the statute to apply, the court must've dismissed the entire action pursuant to a Rule 12(b) motion, and that action must be a tort action.

  4. Wagner v. Grange Ins. Assn

    166 P.3d 304 (Colo. App. 2007)   Cited 28 times
    Distinguishing between accrual dates for personal injury claims and claims based on an alleged statutory violation, breach of contract and bad faith

    The purpose of a C.R.C.P. 12(b)(5) motion to dismiss is to test the formal sufficiency of the plaintiff's complaint. Barton v. Law Offices of John W. McKendree, 126 P.3d 313, 314 (Colo.App. 2005). A court reviewing such a motion must "accept all matters of material fact in the complaint as true and view the allegations in the light, most favorable to the plaintiff."

  5. Sotelo v. Hutchens Trucking

    166 P.3d 285 (Colo. App. 2007)   Cited 16 times
    In Sotelo, the Colorado Court of Appeals reviewed the trial court's denial of the third-party defendant's request for attorneys fees pursuant to § 13-17-201.

    Similarly, the statute does not authorize recovery if one of the plaintiff's tort claims is rejected for reasons other than dismissal under C.R.C.P. 12(b). See Barton v. Law Offices of John W. McKendree, 126 P.3d 318, 314 (Colo.App. 2005) (no recovery where one of the tort claims was dismissed for failure to file certificate of review); First Interstate Bank v. Berenbamn, 872 P.2d 1297, 1302 (Colo.App. 1993) (no recovery where one of the tort claims was disposed of on summary judgment). We conclude that 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).