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Rucker v. Federal National Mortgage Association And Heter And Company, Inc.

Court of Appeals of Colorado, Division A

July 28, 2016

Ellyn Rucker, Petitioner-Appellant,
v.
Federal National Mortgage Association and Heter and Company, Inc., Respondents-Appellees.

         Adams County District Court No. 13CV31426 Honorable Frederick M. Goodbee, Judge

          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.

          Hawthorne and Berger, JJ., concur

          ORDER

          FOX, JUDGE

         ¶ 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.

         ¶ 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 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.

         ¶ 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.

         ¶ 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 ...


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