SUMMARY

August 18, 2022

2022COA94

No. 21CA0739, Ditirro v. Sando — Causes of Action — Civil 

Action for Deprivation of Rights — Peace Officers —

Indemnification by Peace Officer’s Employer

A division of the court of appeals considers whether Colorado’s 

statute that authorizes civil actions against a “peace officer” who 

subjects another person to the deprivation of individual rights, 

§ 13-21-131, C.R.S. 2021, permits a cause of action against the 

employer of a peace officer. The division holds that, under the facts 

of this case, the statute does not allow a plaintiff to file a direct 

action against the employer of a peace officer. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2022COA94

Court of Appeals No. 21CA0739

Adams County District Court No. 20CV31045

Honorable Jeffrey Smith, Judge

Vincent Damon Ditirro,

Plaintiff-Appellant,

v.

Matthew J. Sando, Caleb Simon, Colorado State Patrol, Commerce City Police 

Department, and Adams County Sheriff’s Department,

Defendants-Appellees.

JUDGMENT AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division A

Opinion by JUDGE LIPINSKY

Fox and Rothenberg*, JJ., concur

Announced August 18, 2022

Colorado Christian Defense Counsel, LLC, Jean Pirzadeh, Denver, Colorado, for 

Plaintiff-Appellant

Philip J. Weiser, Attorney General, Allison R. Ailer, Senior Assistant Attorney 

General, Dmitry B. Vilner, Assistant Attorney General, Denver, Colorado, for 

Defendants-Appellees Matthew J. Sando, Caleb Simon, and Colorado State 

Patrol

Kissinger & Fellman, P.C., Jonathan M. Abramson, Yulia Nikolaevskaya,

Denver, Colorado, for Defendant-Appellee Commerce City Police Department

Heidi M. Miller, County Attorney, Michael A. Sink, Assistant County Attorney, 

Brighton, Colorado, for Defendant-Appellee Adams County Sheriff’s Office
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
1

¶ 1 In 2020, the Colorado General Assembly created a new cause 

of action against “peace officers” for violation of a plaintiff’s civil 

rights. Section 13-21-131(1), C.R.S. 2021, allows a plaintiff to sue 

a peace officer who, “under color of law, subject[ed] or caus[ed] [the 

plaintiff] to be subjected, including failing to intervene,” to the 

deprivation of an individual right that “create[s] binding obligations 

on government actors secured by the bill of rights” embodied in the 

Colorado Constitution. 

¶ 2 The statute further provides that, under certain 

circumstances, a peace officer found liable under section 

13-21-131(1) is entitled to obtain indemnification from the peace 

officer’s employer. Section 13-21-131(4)(a) states that “a peace 

officer’s employer shall indemnify its peace officers for any liability 

incurred by the peace officer and for any judgment or settlement 

entered against the peace officer for claims arising pursuant to this 

section,” except where “the peace officer’s employer determines on a 

case-by-case basis that the officer did not act upon a good faith and 

reasonable belief that the action was lawful.” 

¶ 3 The statute is silent, however, on whether a plaintiff has the 

right to assert a direct claim against the employer of a peace officer 
2

who violated one of the plaintiff’s rights protected under the state 

bill of rights. 

¶ 4 We hold that, under the facts of this case, section 13-21-131 

does not allow a plaintiff to file a direct action against the employer

of a peace officer. For this reason, we affirm the district court’s 

judgment dismissing the claims of plaintiff, Vincent Damon Ditirro,

against defendants Adams County Sheriff’s Office (Adams County) 

and Commerce City Police Department (Commerce City) under 

C.R.C.P. 12(b)(5) for failure to state claims upon which relief can be 

granted. (Ditirro’s court filings, including his filings in this court, 

refer to “Adams County Sheriff’s Department.” The correct name of 

that entity is “Adams County Sheriff’s Office.” We use the entity’s 

correct name in this opinion.) 

¶ 5 In addition, we reject Ditirro’s other arguments and award 

appellate attorney fees to the four original defendants that 

requested such a fee award: Commerce City, Colorado State Patrol 

(CSP) troopers Matthew J. Sando and Caleb Simon, and CSP. We 

also grant Commerce City’s request for an award of its costs 

incurred in this appeal. 
3

I. Background Facts and Procedural History

¶ 6 Because the district court dismissed Ditirro’s action under 

C.R.C.P. 12(b)(5), we accept as true the following facts pleaded in 

his first amended complaint. See Norton v. Rocky Mountain Planned 

Parenthood, Inc., 2018 CO 3, ¶ 7, 409 P.3d 331, 334. 

¶ 7 On August 7, 2018, Sando and Simon, troopers with the CSP, 

stopped a car that Ditirro was driving on suspicion that he was 

under the influence of alcohol. Following a roadside sobriety test, 

Sando and Simon arrested Ditirro. During the arrest, Sando and 

Simon assaulted Ditirro, causing him physical and mental injuries. 

¶ 8 On August 6, 2020, Ditirro filed a complaint in the Adams 

County District Court against, as relevant to this appeal, Adams 

County, Commerce City, Sando, Simon, CSP, and “Doe 

Defendants.” Ditirro pleaded nine claims — four under the federal 

statute that authorizes civil actions for civil rights violations, 

42 U.S.C. § 1983, and five under section 13-21-131. 

¶ 9 Commerce City removed the case to the United States District 

Court for the District of Colorado (the federal court) on the grounds 

that the inclusion of the § 1983 claims in Ditirro’s complaint 

allowed the federal court to exercise subject matter jurisdiction over 
4

the entire case. Commerce City then filed a motion to dismiss 

Ditirro’s claims against it for failure to state a claim upon which 

relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). 

¶ 10 While Commerce City’s motion was pending in the federal 

court, Ditirro filed a first amended complaint that did not include 

the § 1983 claims. The absence of those claims from the amended 

complaint deprived the federal court of jurisdiction over the case. 

For this reason, after Ditirro amended his complaint, the federal 

court remanded the case to the Adams County District Court. 

Ditirro refiled his first amended complaint in the Adams County 

District Court on January 25, 2021. 

¶ 11 In his first amended complaint, Ditirro asserted the five 

section 13-21-131 claims he had asserted in his original complaint. 

He premised four of those claims on section 13-21-131(1) and one 

on the indemnification provision in section 13-21-131(4). 

¶ 12 Although Ditirro pleaded that Sando and Simon were “troopers 

with the [CSP],” he also alleged that “[e]ach Defendant and Doe 

Defendant, Individual Defendant, or Agency Defendant were and are 

at all times the agent and principal of each and every Defendant 

whether Individual, Doe or Agency Defendant.” He specifically 
5

asserted that Sando and Simon “were at the time [of Ditirro’s arrest] 

and at all material times the agents of all other Defendants, 

including the Doe Defendants and therefore all the Defendants 

named herein,” and that all defendants “failed to supervise and 

monitor Sando and Simon.” Presumably, “all defendants” included 

Adams County and Commerce City.

¶ 13 Adams County and Commerce City moved to dismiss Ditirro’s 

claims against them for failure to state claims upon which relief can 

be granted under C.R.C.P. 12(b)(5). In his response to those 

motions, Ditirro asked the court to grant him leave to amend his 

complaint again. 

¶ 14 The district court granted Adams County’s and Commerce 

City’s dismissal motions on February 26, 2021. In the orders 

granting those motions, the court concluded that section 13-21-131 

does not authorize a direct cause of action against a peace officer’s 

employer. (Alternatively, the court determined that Ditirro’s 

allegation that Adams County and Commerce City employed Sando 

and Simon did not “pass the plausibility test,” citing Warne v. Hall, 

2016 CO 50, ¶ 27, 373 P.3d 588, 596.) The court also denied 

Ditirro’s requests for leave to amend his first amended complaint 
6

because Ditirro had already amended his complaint once, and the 

court concluded that any further efforts to amend Ditirro’s claims 

against Adams County and Commerce City would be futile. 

¶ 15 Ditirro then filed a separate motion for leave to amend his first 

amended complaint. In the motion, he explained his intention to 

reassert the same § 1983 claims that he had voluntarily dismissed 

when the case was pending in the federal court. The district court 

denied Ditirro’s motion on April 23, 2021, and he filed a motion for 

reconsideration on May 1, 2021. 

¶ 16 Between the filing of Ditirro’s motion for leave to amend and 

the court’s ruling on his motion for reconsideration, Ditirro served 

Sando and CSP with his first amended complaint. Sando and CSP 

responded by filing motions to dismiss under C.R.C.P. 12(b)(5). The 

court granted Sando’s motion to dismiss on May 17, 2021, 

reasoning that section 13-21-131 does not provide a cause of action 

against a peace officer employed by the state. 

¶ 17 On May 22, 2021, Ditirro filed a notice of appeal referencing

three orders: the district court’s February 26, 2021, order 

dismissing Ditirro’s claims against Adams County and Commerce 

City; the April 23, 2021, order denying his motion for leave to 
7

amend the first amended complaint; and the May 17, 2021, order 

denying his motion for reconsideration of the order denying his 

motion for leave to amend. Ditirro’s notice of appeal did not refer to 

the district court’s May 17, 2021, order dismissing his claims 

against Sando. 

¶ 18 At the time Ditirro filed his notice of appeal, the district court 

had not ruled on CSP’s dismissal motion and Ditirro had not served 

Simon. The court granted CSP’s motion to dismiss on July 8, 2021. 

Ditirro served Simon after that date. Like the other defendants, 

Simon filed a motion to dismiss under C.R.C.P. 12(b)(5). The court 

granted Simon’s motion on August 17, 2021. 

¶ 19 Ditirro did not appeal the court’s orders granting Sando’s, 

CSP’s, and Simon’s respective dismissal motions, but, in his 

opening brief, Ditirro asserted that the district court abused its 

discretion by granting those motions. He further asserted that the 

court abused its discretion by denying him leave to amend the first 

amended complaint and by denying his motion for reconsideration. 

¶ 20 In their answer briefs, Adams County, Commerce City, Sando, 

Simon, and CSP contended that this court lacked subject matter 

jurisdiction over the appeal for four reasons: (1) the three orders 
8

referenced in the notice of appeal were interlocutory; (2) Ditirro did 

not ask the district court to direct the entry of a final judgment as 

to the three orders under C.R.C.P. 54(b); (3) Ditirro’s notice of 

appeal did not refer to the orders dismissing his claims against 

Sando, Simon, and CSP, and this court lacks jurisdiction to 

consider those orders; and (4) Ditirro did not file an amended notice 

of appeal. 

¶ 21 On June 24, 2022, a division of this court entered an order 

dismissing the portions of Ditirro’s appeal challenging the district 

court’s orders dismissing, for lack of jurisdiction, his claims against 

Sando, Simon, and CSP. In the June 24, 2022, order, the division 

deferred consideration of Sando’s, Simon’s, and CSP’s requests for 

their appellate attorney fees until this division adjudicated 

Commerce City’s request for appellate attorney fees. (Adams 

County did not request an award of its appellate attorney fees.) 

¶ 22 In this opinion, we limit our review to whether the district 

court erred by granting Adams County’s and Commerce City’s 

motions to dismiss and abused its discretion by denying Ditirro 

leave to amend his first amended complaint and Ditirro’s motion for 

reconsideration. We also consider Commerce City’s, Sando’s, 
9

Simon’s, and CSP’s requests for awards of their appellate attorney 

fees, as well as Commerce City’s request for an award of its costs 

incurred in this appeal. 

II. Analysis

A. Jurisdiction

¶ 23 Because “[a]n appellate court must always be satisfied that it 

has jurisdiction to hear an appeal,” Chavez v. Chavez, 2020 COA 

70, ¶ 22, 465 P.3d 133, 139, we first consider Adams County and 

Commerce City’s contention that this court lacks jurisdiction over 

Ditirro’s appeal of the orders granting their motions to dismiss 

because his notice of appeal was premature. 

¶ 24 “Generally speaking, the court of appeals has jurisdiction only 

over appeals from final judgments.” Allison v. Engel, 2017 COA 43, 

¶ 23, 395 P.3d 1217, 1222. A final judgment generally is one that 

“resolve[s] all claims for relief in a case.” E. Cherry Creek Valley 

Water & Sanitation Dist. v. Greeley Irrigation Co., 2015 CO 30M, 

¶ 11, 348 P.3d 434, 439; see Harding Glass Co. v. Jones, 640 P.2d 

1123, 1125 n.2 (Colo. 1982) (“Absent an applicable exception 

provided by rule or statute, an appeal lies only from a final 

judgment[,] ‘which ends the particular action in which it is entered, 
10

leaving nothing further for the court pronouncing it to do in order to 

completely determine the rights of the parties involved in the 

proceeding.’” (quoting D.H. v. People, 192 Colo. 542, 544, 561 P.2d 

5, 6 (1977))). 

¶ 25 Ditirro’s notice of appeal was premature because the three 

orders it referenced did not constitute a final judgment. The three 

orders did not become final until the district court resolved all 

claims against the defendants that were parties when Ditirro filed 

his notice of appeal. See Rea v. Corr. Corp. of Am., 2012 COA 11, 

¶ 13, 272 P.3d 1143, 1146 (“We conclude that named but unserved 

defendants are not litigants for purposes of determining the 

appealability of an order under the final judgment rule.”). The final 

judgment was entered when the court granted CSP’s motion to 

dismiss on July 8, 2021. The three orders became final at that 

time, even though the district court had not yet granted Simon’s 

motion to dismiss, because Ditirro had not yet served Simon. See 

Musick v. Woznicki, 136 P.3d 244, 246 (Colo. 2006). When the 

court entered its order dismissing Ditirro’s claims against CSP, it 

resolved all of his claims against all of the defendants who had been 

served. 
11

¶ 26 We further conclude that the district court had jurisdiction to 

grant CSP’s motion to dismiss after Ditirro filed his notice of appeal. 

¶ 27 Although “[g]enerally, the filing of a notice of appeal shifts 

jurisdiction to the appellate court, thus divesting the trial court of 

jurisdiction to conduct further substantive action related to the 

judgment on appeal,” a trial court is not divested of jurisdiction 

“when a party files a premature notice of appeal of a nonfinal 

judgment.” Id. 

¶ 28 Here, because Ditirro’s notice of appeal was premature, the 

district court retained jurisdiction to grant CSP’s motion to dismiss 

on July 8, 2021. See id. at 246-47. The three orders referenced in 

the notice of appeal became final upon the entry of the July 8, 

2021, order, which cured the jurisdictional defect in Ditirro’s notice 

of appeal. See id. (holding that, if a party files a premature notice of 

appeal, an appellate court may exercise jurisdiction over the appeal 

once the jurisdictional defect has been cured by entry of a final 

judgment); Kidwell v. K-Mart Corp., 942 P.2d 1280, 1281-82 (Colo. 

App. 1996) (holding that this court may address the merits of an 

appeal if the other parties were not prejudiced by the early filing of 

an appellant’s notice of appeal). 
12

¶ 29 Because the jurisdictional defect was cured, and Adams 

County and Commerce City allege no prejudice from Ditirro’s 

premature filing of his notice of appeal, we conclude that we have 

jurisdiction to resolve those portions of the appeal not dismissed in 

our June 24, 2022, order. 

B. Adams County’s and Commerce City’s Motions to Dismiss

¶ 30 Ditirro contends that the district court erred by granting 

Adams County’s and Commerce City’s motions to dismiss. He 

maintains that section 13-21-131(4) provides a cause of action 

against law enforcement entities, and that the district court erred 

by ruling otherwise. We disagree. 

1. Standard of Review

¶ 31 “We review a C.R.C.P. 12(b)(5) motion to dismiss de novo and 

apply the same standards as the trial court.” Norton, ¶ 7, 409 P.3d 

at 334. “We accept all factual allegations in the complaint as true, 

viewing them in the light most favorable to the plaintiff, but we are 

not required to accept bare legal conclusions as true.” Id. “We will 

uphold the grant of a C.R.C.P. 12(b)(5) motion only when the 

plaintiff’s factual allegations do not, as a matter of law, support the 

claim for relief.” Id. 
13

¶ 32 We also review questions of statutory interpretation de novo. 

Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 

(Colo. 2010). “In determining the meaning of a statute, our central 

task is to ascertain and give effect to the intent of the General 

Assembly.” Id. “We begin by looking to the express language of the

statute, construing words and phrases according to grammar and 

common usage.” Id. “If, after review of the statute’s language, we 

conclude that the statute is unambiguous and the intent appears 

with reasonable certainty, our analysis is complete.” Id. 

2. Applicable Law

¶ 33 Section 13-21-131 authorizes private civil rights actions 

against “peace officer[s].” As relevant to this case, a “peace officer” 

is “any person employed by a political subdivision of the state 

required to be certified by the [Peace Officers Standards and 

Training] board.” § 24-31-901(3), C.R.S. 2021. 

3. The District Court Did Not Err in

Interpreting Section 13-21-131

¶ 34 The district court granted Adams County’s and Commerce 

City’s motions to dismiss on the grounds that “[t]he plain and 

unambiguous language of [section] 13-21-131(1) establishes a 
14

cause of action against an individual peace officer. It does not 

establish a cause of action against the peace officer’s employer such 

as [Adams County] or [Commerce City].” 

¶ 35 Section 13-21-131(1) provides that a “peace officer” is liable to 

the injured party for “the deprivation of any individual rights.” It 

does not mention any other individuals or entities that can be held 

liable under the statute. Thus, we conclude, based on the plain 

language of the statute, that it grants plaintiffs who are similarly 

situated to Ditirro the right to assert the specified civil rights 

actions only against individual peace officers, and not against the 

peace officers’ employers. 

¶ 36 The indemnification language in section 13-21-131 makes it 

clear that, under the facts of this case, a third party such as Ditirro 

may not assert a direct claim against the employer of a peace 

officer. See § 13-21-131(4)(a) (stating that “a peace officer’s 

employer shall indemnify its peace officers” for violations of the 

section, except when the employer “determines on a case-by-case 

basis that the officer did not act upon a good faith and reasonable 

belief that the action was lawful”). We therefore agree with the 

district court that 
15

[w]hile a plaintiff may be the beneficiary of 

indemnification by the municipality if the 

peace officer does not have the funds to pay 

the judgment, it does not necessarily follow 

that [Ditirro] may sue a peace officer’s 

employer to enforce the peace officer’s right to 

indemnification. 

¶ 37 As applied to the facts of this case, the indemnification 

language in section 13-21-131(4) is analogous to the 

indemnification language in an insurance policy analyzed in All 

Around Transport, Inc. v. Continental Western Insurance Co., 

931 P.2d 552, 556 (Colo. App. 1996). In that case, the division 

concluded that 

[a]n injured claimant normally cannot 

maintain a direct action on the liability policy 

protecting the tort-feasor . . . because the 

parties to such an insurance contract do not 

intend to benefit the general public; their 

intent is to benefit the named insured by 

protecting him or her against future liability. 

Id.

¶ 38 The same logic applies to Ditirro’s claims against Adams 

County and Commerce City. While section 13-21-131(4) allows a 

peace officer to obtain indemnification from the peace officer’s 

employer under certain circumstances, it only provides a remedy for 

peace officers, at least before the peace officer has incurred any 
16

liability, or any judgment or settlement has been entered against 

the peace officer, under the statute. (Because the claims that 

Ditirro litigated in the Adams County District Court following the 

remand by the federal court solely arose under state law, we do not 

consider whether our interpretation of section 13-21-131(4) equally 

applies to cases filed under 42 U.S.C. § 1983.) We offer no opinion 

on whether a plaintiff may bring an action against the employer of a 

peace officer after the peace officer has incurred liability under 

section 13-21-131(1) or after “any judgment or settlement [is] 

entered against the peace officer” for a claim arising under the 

statute. § 13-21-131(4)(a). 

¶ 39 Accordingly, we conclude that the district court did not err by 

dismissing Ditirro’s claims against Adams County and Commerce 

City. In light of our analysis, we do not consider the merits of 

Ditirro’s claims. 

C. Ditirro’s Motion to Amend His First Amended Complaint

¶ 40 Ditirro next asserts that the district court abused its 

discretion by denying his motion to amend his first amended 

complaint to reassert the § 1983 claims that he voluntarily 
17

dismissed while the case was pending in federal court. We 

disagree.

¶ 41 Because Ditirro had already amended his complaint, he did 

not have the right to amend it a second time without leave of court 

or the adverse parties’ written consent. See C.R.C.P. 15(a). The 

rules of civil procedure do not grant a plaintiff a second opportunity 

to amend the complaint as a matter of right in state court if the 

plaintiff has previously amended it. See Kennie v. Nat. Res. Dep’t, 

889 N.E.2d 936, 945 (Mass. 2008) (holding that the trial court did 

not err by denying the plaintiffs’ motion for leave to amend their 

complaint to reassert the same federal claims that the plaintiffs had 

included in their original complaint and then “deleted” after the 

defendants removed the case to federal court). 

¶ 42 Because Ditirro did not have the right to amend his first 

amended complaint, the district court had discretion to grant or 

deny Ditirro’s motion for leave to amend. See Benton v. Adams, 

56 P.3d 81, 85 (Colo. 2002) (“Granting leave to amend is within the 

sound discretion of the trial court; our review is for the purpose of 

determining whether or not the trial court abused its discretion in 

ruling on the motion to amend.”). The court denied Ditirro’s motion 
18

after finding that his “change of position on his federal-law claims 

can be viewed as dilatory at best, possible bad faith at worst.” 

¶ 43 We perceive no abuse of discretion by the court. Ditirro 

voluntarily dismissed his § 1983 claims after Commerce City 

removed the case to the federal court, and filed a motion to remand 

the case to the state court. While “[a] plaintiff is the master of his 

complaint,” Suydam v. LFI Fort Pierce, Inc., 2020 COA 144M, ¶ 48, 

490 P.3d 930, 939 (quoting Gadeco, LLC v. Grynberg, 2018 CO 22, 

¶ 17, 415 P.3d 323, 329), and thus has the right to choose which 

claims he or she seeks to pursue in which court, Ditirro’s actions 

suggest that he voluntarily dismissed his § 1983 claims to defeat 

the federal court’s jurisdiction and to force that court to remand his 

case to the Adams County District Court. 

¶ 44 The record therefore supports the district court’s finding that 

Ditirro’s attempt to reassert his § 1983 claims in state court 

following the remand was “dilatory at best, possible bad faith at 

worst.” See Benton, 56 P.3d at 86 (“Grounds for trial court denial of 

a motion to amend pleadings include undue delay, bad faith, 

dilatory motive, repeated failure to cure deficiencies in the pleadings 
19

via prior amendments, undue prejudice to the opposing party, and 

futility of amendment . . . .”). 

D. Ditirro’s Motion for Reconsideration

¶ 45 Ditirro next contends that the district court abused its 

discretion by denying his motion for reconsideration of its order 

denying his motion for leave to amend his first amended complaint. 

We disagree.

¶ 46 Because the court did not abuse its discretion by denying 

Ditirro’s motion for leave to amend, it likewise did not abuse its 

discretion by denying Ditirro’s motion for reconsideration. See 

Hytken v. Wake, 68 P.3d 508, 512-13 (Colo. App. 2002) (holding 

that, because the trial court properly analyzed an issue, it did not 

abuse its discretion by denying a motion for reconsideration of the 

issue). 

E. Appellate Attorney Fees

¶ 47 After granting Commerce City’s, Sando’s, Simon’s, and CSP’s 

motions to dismiss, the district court granted their requests for 

awards of attorney fees pursuant to section 13-17-201, C.R.S. 

2021. At the time, that statute provided that 
20

[i]n all actions brought as a result of a death or 

an injury to person or property occasioned by 

the tort of any other persons, where any such 

action is dismissed on motion of the defendant 

prior to trial under rule 12(b) of the Colorado 

rules of civil procedure, such defendant shall 

have judgment for his reasonable attorney fees 

in defending the action. 

§ 13-17-201. “Under this section, an award of attorney fees is 

mandatory when a trial court dismisses an action under C.R.C.P. 

12(b).” Wark v. Bd. of Cnty. Comm’rs, 47 P.3d 711, 717 (Colo. App. 

2002). Notably, under that version of the statute, a plaintiff and the 

plaintiff’s lawyer are equally liable for attorney fees awards, even 

though the lawyer may have been solely responsible for the pleading 

deficiencies that led to the dismissal of the action. Moreover, “[a] 

party who successfully defends such a dismissal order is also 

entitled to recover reasonable attorney fees incurred on appeal.” Id. 

¶ 48 This case falls squarely within the version of section 

13-17-201 in effect at the time the parties filed their appellate 

briefs. Ditirro alleged that the defendants’ torts had, directly or 

indirectly, resulted in injuries to him, and the district court 

dismissed Ditirro’s action under C.R.C.P. 12(b). 
21

¶ 49 In light of our affirmance of the district court’s order 

dismissing Ditirro’s claims against Commerce City, we are required 

to grant Commerce City’s request for appellate attorney fees under 

section 13-17-201, as well as its request for appellate costs under 

C.A.R. 39(a)(2). And, given our conclusion in the June 24, 2022, 

order that we lack jurisdiction over Ditirro’s appeal of the orders 

dismissing his claims against Sando, Simon, and CSP, we hold that 

those defendants “successfully defend[ed] . . . a dismissal order” 

and are therefore also entitled to an award of their respective 

appellate attorney fees under section 13-17-201. Wark, 47 P.3d at 

717. (Because Sando, Simon, and CSP did not request awards of 

their appellate costs, we do not award such costs to them.) 

¶ 50 We acknowledge that, in 2022, the General Assembly carved 

out an exception to section 13-17-201 for

any claim that is a good faith, non-frivolous 

claim filed for the express purpose of 

extending, limiting, modifying, or reversing 

existing precedent, law, or regulation; or for 

the express purpose of establishing the 

meaning, lawfulness, or constitutionality of a 

law, regulation, or United States or state 

constitutional right and the meaning, 

lawfulness, or constitutionality has not been 

determined by the Colorado supreme court, or 

for cases presenting questions under the 
22

United States constitution, to the Supreme 

Court of the United States. 

Ch. 445, sec. 1, § 13-17-201(2), 2022 Colo. Sess. Laws 

3131. But the exception only applies where 

the party that brought the dismissed claim . . .

pleaded . . . that the dismissed claim was 

made for one of the express purposes stated in 

this subsection (2) and identified the 

precedent, law, or regulation the party seeks to 

extend, limit, modify, or reverse, or whether 

the issue to be decided is a matter of first 

impression.

Id. at 3131-32. The amendment took effect on June 8, 2022, and 

therefore does not apply to Ditirro’s claims.

¶ 51 Even if the amendment applied to this case, it would not 

benefit Ditirro because his lawyer did not plead that the dismissed 

claims were “made for one of the express purposes” stated in the 

new section 13-17-201(2). (In the opening brief, Ditirro’s counsel 

notes that, “due to the newness of [section 13-21-131] no case 

authority exists on the liability of entities under the statute.” No 

such language appears in Ditirro’s first amended complaint, 

however.)
23

III. Conclusion

¶ 52 The judgment in favor of Adams County and Commerce City is 

affirmed. The orders denying Ditirro’s motion for leave to amend 

his first amended complaint and denying his motion for 

reconsideration are also affirmed. The case is remanded to the 

district court for a determination of the amount of reasonable 

appellate attorney fees and costs to be awarded, as explained above. 

JUDGE FOX and JUDGE ROTHENBERG concur.