County District Court No. 13CV31426 Honorable Frederick M.
Frickey Law Firm, P.C., Howard Flicker, Eric B. Ballou,
Lakewood, Colorado, for Petitioner-Appellant
Waltz Law Firm, Richard A. Waltz, Christopher R. Reeves,
Denver, Colorado, for Respondent-Appellee Federal National
Offices of Skrabo & Atkins, Randee L. Stapp, Greenwood
Village, Colorado, for Respondent-Appellee Heter and Company,
Hawthorne and Berger, JJ., concur
1 In this C.A.R. 4.2 interlocutory appeal, plaintiff, Ellyn
Rucker (Ellyn),  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.
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),
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
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.
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
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