R. Parker Semler, Plaintiff-Appellant,
Bruce S. Hellerstein; Perfect Place, LLC; Bruce S. Hellerstein, CPA P.C.; Charles Bewley; and Berenbaum Weinshienk, P.C., Defendants-Appellees.
and County of Denver District Court No. 14CV32364 Honorable
Robert L. McGahey, Jr., Judge.
and Associates, P.C., R. Parker Semler, Jeremy Goldblatt,
Matthew Nelson, Denver, Colorado, for Plaintiff-Appellant
& Podoll, P.C., Richard B. Podoll, Robert C. Podoll,
Robert A. Kitsmiller, Greenwood Village, Colorado, for
Defendants-Appellees Bruce S. Hellerstein; Perfect Place,
LLC; and Bruce S. Hellerstein, CPA P.C.
Wheeler Trigg O'Donnell LLP, Carolyn J. Fairless, Denver,
Colorado, for Defendants-Appellees Charles Bewley; and
Berenbaum Weinshienk, P.C.
1 Plaintiff, R. Parker Semler, appeals from the trial
court's order granting the motions to dismiss of
defendants, Bruce S. Hellerstein; Perfect Place, LLC; Bruce
S. Hellerstein, CPA P.C.; Charles Bewley; and Berenbaum
Weinshienk, P.C., and denying Semler's motion to amend
his complaint. Semler also appeals from the trial court's
denial of his motion for postjudgment relief and its award of
attorney fees and costs in defendants' favor. We affirm
in part, reverse in part, and remand the case for further
2 Semler and Perfect Place are both members of the 1940 Blake
Street Condominium Association (Association). Hellerstein
owns and controls both Perfect Place and Bruce S.
Hellerstein, CPA P.C. (collectively, the Perfect Place
defendants). Hellerstein also served as treasurer of the
Association when he allegedly committed the conduct discussed
below. Bewley is an attorney employed by the law firm of
Berenbaum Weinshienk, P.C. At all relevant times, Bewley
represented Hellerstein and his two corporate entities.
3 The current litigation stems from a related quiet title
action in which Perfect Place asked the court to determine
that it was the rightful owner of parking spaces C, D, and E.
According to Semler, he had acquired title to parking space C
more than seven years before this litigation began. He also
acquired title to parking space D through a deed of trust and
for significant consideration. Perfect Place asserted that it
had acquired title to parking spaces C, D, and E via a
quitclaim deed from John Watson and two entities that Watson
controlled in June 2011. The court presiding over the quiet
title action determined that Semler owned parking spaces C
and D, while Perfect Place owned parking space E.
4 Perfect Place appealed and that appeal is currently pending
before another division of this court.
5 Semler then brought the current suit claiming that Bewley
and Hellerstein devised a scheme to gain title to
Semler's building parking spaces C and D. Semler alleged
that Bewley and Hellerstein, through various
misrepresentations made to Watson, induced Watson to sign
deeds conveying Semler's parking spaces to Perfect Place.
According to Semler, Hellerstein, as the treasurer of the
Association, breached his fiduciary duty to Semler by
scheming to take his parking spaces. Bewley, by representing
Hellerstein, conspired with and helped Hellerstein in his
efforts to improperly gain title to the parking spaces. And
Berenbaum Weinshienk failed to properly supervise Bewley, was
vicariously liable for Bewley's conduct, and breached an
agreement to not represent one Association member against
another. Semler's first amended complaint alleged claims
only for breach of fiduciary duty against Hellerstein, aiding
and abetting that breach against Bewley, and civil conspiracy
against all defendants.
6 Defendants filed two motions to dismiss, one based on
C.R.C.P. 12(b)(5) and one based on a lack of standing. Soon
thereafter, Semler moved to amend his complaint a second
time, proposing to add claims for fraud, nondisclosure and
concealment, negligent misrepresentation, negligent
supervision, vicarious liability, and breach of contract. He
also more clearly explained that he was seeking damages for
the lost income opportunities he suffered as a result of
having to defend against the quiet title
7 The court granted the motions to dismiss and denied
Semler's second motion to amend. The court also awarded
attorney fees in favor of defendants.
Timeliness of the Notice of Appeal
8 Defendants assert that Semler's notice of appeal was
untimely and, therefore, we lack jurisdiction to consider the
appeal. We disagree.
9 "The timely filing of a notice of appeal is a
jurisdictional prerequisite to appellate review."
Estep v. People, 753 P.2d 1241, 1246 (Colo. 1988).
Under C.A.R. 4(a), the notice of appeal must be filed
"within 49 days of the date of the entry of the
judgment, decree, or order from which the party
10 As relevant here, one method by which to calculate the
forty-nine-day period is from the date the court grants or
denies a Rule 59 motion. C.A.R. 4(a). Thus, "[t]he
timely filing of a motion pursuant to C.R.C.P. 59 tolls the
time for filing a notice of appeal." Goodwin v.
Homeland Cent. Ins. Co., 172 P.3d 938, 944 (Colo.App.
11 Nevertheless, defendants argue that because there was no
trial and Semler made the same arguments in his postjudgment
motion as he had in earlier pleadings, Semler's motion
did not qualify as a C.R.C.P. 59 motion. They further argue
that because Semler asked the court to vacate its orders of
dismissal, the postjudgment motion could only be construed as
a motion to vacate the judgment under C.R.C.P. 60. And,
because a postjudgment motion pursuant to C.R.C.P. 60 does
not toll the time within which to file a notice of appeal,
Semler's appeal is untimely.
12 We find the out-of-state cases cited by defendants
distinguishable,  follow those prior Colorado cases that
construe motions such as Semler's - filed in cases that
ended before a trial - as motions under C.R.C.P. 59, and
conclude that this appeal is timely. See SMLL, L.L.C. v.
Daly, 128 P.3d 266, 269 (Colo.App. 2005); Small v.
Gen. Motors Corp., 694 P.2d 374, 375 (Colo.App. 1984).
13 Here, the day after the court entered its order dismissing
Semler's claims, Semler filed a motion for
reconsideration pursuant to C.R.C.P. 59. The court denied the
motion about one month later on December 22, 2014. Exactly
forty-nine days later, on February 9, 2015, Semler filed his
notice of appeal. Therefore, we conclude the appeal was
timely filed and that we do have jurisdiction to consider the
Motion to Amend Complaint
14 Semler contends that the trial court erred by denying his
motion for leave to amend his complaint a second time.
15 We generally review a trial court's decision to grant
or deny a motion to amend for an abuse of discretion. See
Benton v. Adams, 56 P.3d 81, 85 (Colo. 2002). However,
"[w]hen a trial court denies leave to amend on grounds
that the amendment would be futile because it cannot survive
a motion to dismiss, we review that question de novo as a
matter of law." Id.
16 Our courts favor a liberal policy toward amending
pleadings. Under C.R.C.P. 15(a), "where leave of court
is required to amend a pleading, 'leave shall be freely
given when justice so requires.'" Civil Serv.
Comm'n v. Carney, 97 P.3d 961, 966 (Colo. 2004)
(quoting C.R.C.P. 15(a)). In determining whether to grant
leave, the court should consider the totality of the
circumstances. Id. Some grounds for denying a motion
to amend include "undue delay, bad faith, dilatory
motive, repeated failure to cure deficiencies in the
pleadings via prior amendments, undue prejudice to the
opposing party, and futility of amendment."
Benton, 56 P.3d at 86.
17 Here, in its omnibus order dismissing the case, the trial
court denied Semler's motion to amend his complaint (for
the second time) but stated no basis for doing so other than
articulating why Semler had no standing to pursue any alleged
fraud against or misrepresentation to Watson, the prior owner
of the parking spaces. And the court's dismissal of the
action was specifically premised on Semler's fraud
claims. These claims were not included in Semler's
initial or amended complaint and were new to the second
amended complaint. Therefore, it appears to us that even
though the court denied Semler's motion to amend, it did
in fact consider the second amended complaint when ruling on
the motion to dismiss. Defendants acknowledge this in their
18 We presume, therefore, that the court's denial of
Semler's motion to amend was premised on its dismissal of
the entire action and the futility of further proceedings.
Thus, we will review the trial court's ...