COLORADO COURT OF APPEALS 2016COA171

Court of Appeals No. 15CA2085 

Pueblo County District Court No. 14CV30856 

Honorable Kimberly Karn, Judge 

Lisa Maldonado and the Estate of Jacob Maldonado, 

Plaintiffs-Appellants, 

v. 

Dennis Pratt and Karon Pratt, a/k/a Karen M. Pratt, 

Defendants-Appellees. 

JUDGMENT AFFIRMED 

Division II 

Opinion by JUDGE HARRIS 

Dailey and Furman, JJ., concur 

Announced November 17, 2016 

Earl & Earl, PLLC, Collin J. Earl, Ryan T. Earl, Colorado Springs, Colorado, for 

Plaintiffs-Appellants 

Nathan, Bremer, Dumm & Myers, P.C., Mark H. Dumm, Kaitlin M. Akers, 

Denver, Colorado, for Defendants-Appellees 
1 

¶ 1 In this appeal, we must determine whether an amended 

complaint’s new claim against a new defendant, asserted after the 

statute of limitations has run, relates back to the date of the 

original complaint. 

¶ 2 Plaintiffs Lisa Maldonado and the Estate of Jacob Maldonado 

(collectively, the Estate) sued Dennis Pratt II (Pratt Jr.) for wrongful 

death, in connection with Pratt Jr.’s fatal shooting of Jacob 

Maldonado (Maldonado). Months later, after the statute of 

limitations had run on any negligence claims, the Estate sought to 

amend its complaint to add a new claim under the Premises 

Liability Act against Pratt Jr.’s mother (Karen) and father Dennis 

Pratt (Pratt Sr.) (collectively, the Pratts). The Estate contended that 

it had recently learned that the Pratts, not Pratt Jr., owned the 

property where the shooting occurred. 

¶ 3 We conclude, as the district court did, that the Pratts did not 

have timely notice of the original action. Accordingly, the amended 

complaint does not relate back to the original complaint and the 

Estate’s claim is time barred. 

¶ 4 We therefore affirm the district court’s entry of judgment in 

favor of the Pratts. 
2 

I. Background 

¶ 5 The Pratts and Pratt Jr. own adjacent properties in a rural 

area near Pueblo, Colorado. Pratt Jr. stored used car parts on his 

property, in a spot located about a quarter mile from his parents’ 

house. 

¶ 6 Pratt Jr. began to suspect that someone was stealing the car 

parts. On the night of October 16, 2012, he drove his truck to the 

storage area. When he saw beams from three flashlights 

approaching the area, he got out of his truck and fired his rifle in 

the direction of the lights, killing Maldonado. 

¶ 7 A jury convicted Pratt Jr. of negligent homicide and he was 

sentenced to six years’ imprisonment. 

¶ 8 On September 16, 2014, one month before the end of the 

limitations period, the Estate filed a wrongful death action against 

Pratt Jr., alleging a single claim of negligence based on his act of 

shooting Maldonado. The complaint was served on Pratt Jr. at the 

Department of Corrections (DOC), where he was serving his 

sentence. 

¶ 9 On April 1, 2015, the Estate filed an amended complaint, 

retaining the wrongful death claim against Pratt Jr. but asserting 
3 

an additional claim against the Pratts under the Premises Liability 

Act (PLA), section 13-21-115, C.R.S. 2016. As the Estate later 

explained, the Pratts’ insurance company had conducted an 

investigation of the Estate’s claim against Pratt Jr. in January 

2015, and had determined that the property where the shooting 

occurred was owned by the Pratts, not by Pratt Jr.1

¶ 10 The Pratts filed a motion for judgment on the pleadings and/or 

for summary judgment, arguing that the two-year statute of 

limitations had run and, therefore, the claim against them was time 

barred.2 The Estate countered that, under C.R.C.P. 15(c), the 

amended complaint related back to the original complaint. 

¶ 11 The district court disagreed, concluding that the Pratts did not 

have notice of the original lawsuit and, even if they had received 

 

1 In their reply brief, the Estate contends that the location of the 

shooting is a disputed issue of material fact. It does not appear 

from the record on appeal that the Estate ever alerted the district 

court to this supposed factual dispute, and we will not consider an 

issue raised for the first time in a reply brief on appeal. People v. 

Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990). In any event, we 

are not persuaded that the location of the shooting is a material 

fact; instead, the fact of consequence is that the Pratts owned the 

property where the shooting occurred, a point the Pratts appear to 

concede. 

2 The statute of limitations for a negligence claim under the PLA is 

two years. § 13-80-102(1)(a), C.R.S. 2016. The cause of action 

accrues on the date of death. § 13-80-108(1), C.R.S. 2016. 
4 

notice, they would not have expected that, but for a mistake in 

pleading, they would have been named as defendants in the 

wrongful death action. Accordingly, the district court granted the 

Pratts’ motion and entered judgment in their favor on the PLA 

claim. 

II. Discussion 

¶ 12 On appeal,3 the Estate concedes that the statute of limitations 

for a PLA claim had already expired when it filed its amended 

complaint. But it contends that, under C.R.C.P. 15(c), the new 

 

3 The Pratts correctly point out in their answer brief that the 

Estate’s amended opening brief was filed one day late. Generally, it 

is within the discretion of the court whether to dismiss or proceed 

with an appeal when a brief is filed late. See C.A.R. 31(b); 

Wilkinson v. Motor Vehicle Div., 634 P.2d 1016 (Colo. App. 1981). 

The determination depends on the circumstances of the particular 

case. State ex rel. Dep’t of Corr. v. Pena, 788 P.2d 143, 147 (Colo. 

1990); Harris v. Reg’l Transp. Dist., 155 P.3d 583, 587 (Colo. App. 

2006). “In rare cases, conduct in prosecuting an appeal is so 

contrary to court rules and so disrespectful of the judicial process 

and the participants therein that the right to appellate review is 

forfeited.” Martin v. Essrig, 277 P.3d 857, 859-60 (Colo. App. 2011); 

see also Warren Vill. Inc. v. Bd. of Assessment Appeals, 619 P.2d 60 

(Colo. 1980) (appeal dismissed after opening brief filed months late); 

Wilkinson, 634 P.2d at 1017 (appeal dismissed for failure to file an 

opening brief after a fifteen-day extension). In our view, the eighthour delay in filing the amended opening brief does not implicate 

the integrity of the judicial process and, as the parties have fully 

briefed the issues, we choose to reach the merits of this case. 
5 

claim against the Pratts related back to the date of the original 

wrongful death action and was therefore timely. 

A. Standard of Review 

¶ 13 The Pratts’ motion was denominated a motion for judgment on 

the pleadings pursuant to C.R.C.P. 12(c) or, alternatively, a motion 

for determination of a question of law pursuant to C.R.C.P. 56(h). 

By considering evidence outside the pleadings, the court treated the 

motion as a motion under Rule 56. Shaw v. City of Colorado 

Springs, 683 P.2d 385, 387 (Colo. App. 1984). We review a trial 

court’s decision granting summary judgment de novo. Oasis Legal 

Fin. Grp., LLC v. Coffman, 2015 CO 63, ¶ 30. 

¶ 14 Summary judgment is appropriate only if the pleadings and 

supporting documents demonstrate no genuine issue of material 

fact and the moving party is entitled to judgment as a matter of law. 

C.R.C.P. 56(c); Laughman v. Girtakovskis, 2015 COA 143, ¶ 8. In 

determining whether summary judgment is proper, a court grants 

the nonmoving party any favorable inferences reasonably drawn 

from the facts and resolves all doubts in favor of the nonmoving 

party. Cikraji v. Snowberger, 2015 COA 66, ¶ 16. 
6 

¶ 15 We also review de novo a trial court’s interpretation of a rule of 

civil procedure. City & Cty. of Broomfield v. Farmers Reservoir & 

Irrigation Co., 239 P.3d 1270, 1275 (Colo. 2010). 

B. Rule 15(c) and the Relation-Back Test 

¶ 16 A new claim or defense asserted in an amended pleading 

against the existing party or parties relates back to the date of the 

original pleading so long as the new claim or defense arises out of 

the same conduct, transaction, or occurrence. C.R.C.P. 15(c). 

¶ 17 But when the amended pleading seeks to add a new party — 

not simply a new claim against an existing party — Rule 15 adds 

two additional requirements, both focused on notice to the new 

party: first, the new party must have received such notice of the 

action within the period provided by C.R.C.P. 4(m) for serving the 

summons and complaint that he would not be prejudiced, and, 

second, having received such notice, the new party must have 

known or reasonably should have known that, but for a mistake 

concerning the identity of the proper party, the action would have 

been brought against him or her. Id.4

 

4 This provision of C.R.C.P. 15(c) concerns amendments “changing 

the party against whom a claim is asserted . . . .” Like most courts 
7 

¶ 18 Under modern pleading rules, requests to amend should be 

freely granted and liberally construed. Eagle River Mobile Home 

Park v. Dist. Court, 647 P.2d 660 (Colo. 1982). Rule 15(c) is a 

remedial tool that reflects a balance between this policy of liberally 

permitting amendments and ensuring the reliable application of 

statutes of limitation. Goodman v. Praxair, Inc., 494 F.3d 458, 

467-68 (4th Cir. 2007);5 Chaplake Holdings, LTD v. Chrysler Corp., 

766 A.2d 1, 7 (Del. 2001). By focusing on notice to the new party 

and the amendment’s effect on the new party, Rule 15(c) promotes 

the administration of justice by allowing cases to be decided on the 

merits, rather than on mere technicalities, Pan v. Bane, 141 P.3d 

555, 559 (Okla. 2006), and, when appropriate, also gives 

 

that have addressed the scope of the provision, we conclude that it 

applies as well to amendments adding a party. See Lundy v. 

Adamar of N.J., Inc., 34 F.3d 1173, 1192 n.13 (3d Cir. 1994) 

(Becker, J., concurring in part and dissenting in part) (collecting 

cases); see also 6A Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 1498.2 (3d ed. updated 2016) (“Many 

courts have liberally construed the rule to find that amendments 

simply adding or dropping parties, as well as amendments that 

actually substitute defendants, fall within the ambit of the rule.”). 

5 When a state rule is similar to a Federal Rule of Civil Procedure, 

courts may look to federal authority for guidance in construing the 

state rule. Benton v. Adams, 56 P.3d 81, 86 (Colo. 2002). The 

federal rule has always been substantially similar to our rule and 

the current version is nearly identical to C.R.C.P. 15. 
8 

defendants “predictable repose from claims after the passage of a 

specified time,” Goodman, 494 F.3d at 468-70. 

¶ 19 In light of these interests, notice is considered the touchstone 

of Rule 15(c) and is “strictly required.” Currier v. Sutherland, 215 

P.3d 1155, 1161 (Colo. App. 2008), aff’d, 218 P.3d 709 (Colo. 2009); 

see also Graves v. Gen. Ins. Corp., 412 F.2d 583, 585 (10th Cir. 

1969) (the addition or substitution of parties who had no notice of 

the original action is “not allowed”). Notice “serves as a yardstick 

for evaluating whether or not amending the complaint will cause 

the new defendant to suffer prejudice if he or she is forced to defend 

the case on the merits.” Lacedra v. Donald W. Wyatt Det. Facility, 

334 F. Supp. 2d 114, 129 (D.R.I. 2004). Thus, an amendment is 

permitted to relate back only where a new party had timely 

knowledge of the original action and the original complaint provided 

fair and adequate notice of the new claim in the amended 

complaint. See Currier, 215 P.3d at 1162. 

C. Did The Pratts Have Notice of the Original Lawsuit Within the 

Period Prescribed by C.R.C.P. 4(m)? 

¶ 20 The Pratts concede that the Estate’s PLA claim arises out of 

the same conduct, transaction, or occurrence as the negligence 
9 

claim asserted against Pratt Jr. in the original complaint. But they 

argue that the Estate cannot satisfy elements two or three of the 

relation-back test: notice within the prescribed period and 

knowledge that they should have been defendants in the lawsuit. 

We agree that the Estate failed to demonstrate a genuine factual 

dispute regarding whether the Pratts had notice of the original 

lawsuit within the prescribed time period. 

¶ 21 An amendment will not relate back to the original complaint 

under Rule 15(c) unless the new party receives notice of the 

institution of the action within the period provided by Rule 4(m).6 

Cf. Garcia v. Schneider Energy Servs., Inc., 2012 CO 62, ¶ 13 (under 

Fed. R. Civ. P. 15, the phrase “within the period provided by Rule 

4(m) for serving the summons and complaint,” means that the new 

party must receive notice within a prescribed period after a 

complaint is filed); see Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 

194 (3d Cir. 2001) (this element of relation-back test requires both 

notice and absence of prejudice). 

 

6 Notice of “the institution of the action” means notice of the 

lawsuit, not notice of the events giving rise to the cause of action. 

Lundy, 34 F.3d at 1188 (Becker, J., concurring in part and 

dissenting in part). 
10 

¶ 22 Under C.R.C.P. 4(m), the plaintiff must serve his summons 

and complaint within sixty-three days after the complaint is filed. 

The Estate filed its original complaint on September 16, 2014. 

Thus, to satisfy the second element of the test, the Estate had to 

show that, by November 18, 2014, the Pratts had notice of the 

action against Pratt Jr. 

¶ 23 The district court found that there was no evidence that the 

Pratts had actual notice of the lawsuit before the end of the 

limitations period on October 16, 2014.7 Though the district court’s 

finding misconstrued the relevant date for purposes of Rule 15(c), 

the Estate did not offer any evidence to establish that the Pratts 

had actual notice of the complaint before November 18, 2014. 

 

7 The district court determined that the Pratts first learned of the 

lawsuit in January 2015, after Pratt Jr.’s lawyer contacted the 

Pratts’ insurance company seeking a determination of whether the 

Estate’s claim against Pratt Jr. was covered by the Pratts’ policy. 

The scant evidence submitted to the district court supports the 

court’s finding. On January 7, 2015, Pratt Jr.’s lawyer submitted a 

claim and a copy of the complaint to the Pratts’ insurance company 

for a determination of coverage. On January 19, 2015, having 

completed its investigation, the insurance company responded to 

Pratt Jr.’s lawyer with a denial of the claim, explaining that, 

although the shooting incident appeared to have occurred on the 

Pratts’ property, Pratt Jr. was not covered under the policy because 

he was not a resident of the Pratts’ household. 
11 

¶ 24 Rather, the Estate argues that actual notice was not required 

because notice to Pratt Jr. could be imputed to the Pratts under the 

“identity of interest” doctrine. Parties have an identity of interest 

when they are “so closely related in their business operations or 

other activities that the institution of an action against one serves 

to provide notice of litigation to the other.” Spiker v. Hoogeboom, 

628 P.2d 177, 179 (Colo. App. 1981) (quoting 6 Charles Alan Wright 

& Arthur R. Miller, Federal Practice and Procedure § 1499, at 517 

(1971)). 

¶ 25 Ordinarily, the identity of interest doctrine is applied to 

corporate parties: a parent and its subsidiary, for example, or 

related corporations whose officers, directors, or shareholders are 

substantially identical and who may have similar names or conduct 

their businesses from the same offices. 6A Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 1499 (3d ed. 

updated 2016); see also Brooks v. Isinghood, 584 S.E.2d 531, 543 

n.10 (W. Va. 2003) (identity of interest usually present between 

parent and subsidiary, related corporations, and co-executors of 

estate). 
12 

¶ 26 Analogizing to cases of corporate misnomer, the Estate insists 

that notice to Pratt Jr. could be imputed to Pratt Sr. because they 

have the same name. But similarity of names alone is not 

meaningful. In the corporate misnomer context, the similarity 

matters because it emphasizes the interrelatedness of the corporate 

entities and helps to explain any error in identifying the proper 

party. The rationale does not apply to individuals: we do not 

typically presume that two people who happen to have the same 

name operate as one unit whose interests are aligned. And the 

Estate has never alleged any misidentification of proper parties 

based on the similarity of Pratt Jr. and Pratt Sr.’s names; rather, it 

asserts that, based on the police reports, it mistakenly believed that 

Pratt Jr. was the owner of the property where the shooting 

occurred.8 Cf. Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010) 

(plaintiff allowed to amend complaint to correctly identify carrier 

liable for her injury as Costa Crociere, instead of Costa Cruise). 

 

8 In any event, the analogy to corporate misnomer cases does not 

apply even superficially to Karen, who was also named in the 

amended complaint as a defendant. 
13 

¶ 27 The Estate also points to evidence that Pratt Jr. visited his 

parents frequently and that he and Pratt Sr. had common hobbies. 

But these facts also fail to demonstrate an identity of interest. 

¶ 28 To be sure, under certain circumstances, notice can be 

imputed from a child to a parent (or vice versa) under an identity of 

interest theory. Courts have found an identity of interest between 

parents and their minor children who live at home. See Sadlowski 

v. Benoit, No. 9801859, 2008 WL 2745157 (Mass. Super. Ct. June 

26, 2008) (unpublished opinion) (parents and minor daughter had 

identity of interest such that findings in prior lawsuit prosecuted by 

parents were binding on daughter), aff’d, 917 N.E.2d 260 (Mass. 

App. Ct. 2009); Sulzen v. Williams, 977 P.2d 497, 501 (Utah Ct. 

App. 1999) (notice to parents could be imputed to minor children 

living at the home where service was effectuated). Courts have also 

recognized an identity of interest between a parent and child who 

share a lawyer or are covered under the same insurance policy. See

Denver v. Forbes, 26 F.R.D. 614 (E.D. Pa. 1960) (minor daughter 

living at home and sharing same insurer as parents was 

substituted for mother after daughter was correctly identified as the 

driver of the car involved in an accident); Phillips v. Gieringer, 108 
14 

P.3d 889 (Alaska 2005) (notice imputed from father, who was the 

owner of the car, to son, who was the driver, where both were 

insured under the same policy); Pan, 141 P.3d 555 (minor daughter 

lived at home and shared same attorney and insurance company as 

her parents; thus, notice of the suit was imputed to her, as the 

actual driver and proper defendant in a case arising out of traffic 

accident). 

¶ 29 In these cases, notice is attributed to the other person either 

because the insurance company or the lawyer has a duty to 

represent both parties’ interests, see, e.g., Phillips, 108 P.3d at 

894-95, or because the legal fates of the parent and child are so 

intertwined that they constitute one unit for purposes of the 

litigation, see Sadlowski, 2008 WL 2745157, at *4; see also 

Williams v. United States, 405 F.2d 234, 239 (5th Cir. 1968) 

(because liability of the minor would give rise to a liability of the 

parent, identity of interest between mother and child existed). 

¶ 30 But here, Pratt Jr. was not a minor and he did not live with 

the Pratts. Prior to his incarceration, he lived with his wife and 

children in a separate residence. At the time he was served with 

the summons and complaint, he was in the custody of the DOC. 
15 

Pratt Jr. and the Pratts were not represented by the same lawyer or 

covered by the same insurance policy. And Pratt Jr. and the Pratts 

did not share the same legal position with respect to the claims 

asserted. See Penrose v. Ross, 71 P.3d 631, 636 (Utah Ct. App. 

2003) (father and son did not have identity of interest where 

defenses to claims were different and disposition as to father would 

not affect claim against son). 

¶ 31 Imputing notice to one person based on actual notice to 

another is not the same as inferring that one person actually 

notified the other. See Jehly v. Brown, 2014 COA 39, ¶¶ 17-18 

(actual knowledge is distinct from imputed knowledge); see also In 

re Comp. of Muliro, 359 Or. 736, 747-48, ___ P.3d ___, ___ (2016) 

(imputed notice is not received by the party to whom it is imputed; 

instead, imputed notice is attributed to a person because it was 

received by someone with a duty to disclose). Though the Estate 

claims to be making an imputation argument, in actuality it urges 

us to assume from the circumstances that Pratt Jr. told his parents 

(or at least Pratt Sr.) about the lawsuit. 

¶ 32 On summary judgment, we ordinarily give the nonmoving 

party the benefit of all favorable inferences reasonably drawn from 
16 

the undisputed facts. Brodeur v. Am. Home Assur. Co., 169 P.3d 

139, 146 (Colo. 2007). But here, the record is devoid of any facts 

concerning communications between Pratt Jr. and the Pratts from 

October 23, 2014, the date Pratt Jr. was served with the complaint, 

to November 18, 2014, the date by which the Pratts had to receive 

notice of the lawsuit under Rule 15(c). Nor did the Estate claim 

that disputed issues of fact regarding notice precluded summary 

judgment, see Montgomery v. U.S. Postal Serv., 867 F.2d 900, 904 

(5th Cir. 1989) (whether new party received notice within time 

prescribed by Rule 15(c) is fact question), or seek additional time to 

discover evidence concerning the Pratts’ notice of the lawsuit, see 

Sundheim v. Bd. of Cty. Comm’rs, 904 P.2d 1337, 1352 (Colo. App. 

1995) (“In order to avoid the precipitous and premature grant of 

judgment against the opposing party, C.R.C.P. 56(f) affords an 

extension of time to utilize discovery procedures to seek additional 

evidence before the trial court rules on a motion for summary 

judgment.”), aff’d, 926 P.2d 545 (Colo. 1996). 

¶ 33 True enough, during the investigation by the Pratts’ insurance 

company, Pratt Jr.’s wife reported that, at around the time of the 

shooting, Pratt Jr. saw his parents every day. But the Estate’s 
17 

complaint alleged that Pratt Jr. was taken into custody on the day 

of the offense, October 16, 2012, and the record does not disclose 

any additional facts about Pratt Jr.’s contact with his parents 

during the two years preceding service of the complaint. We cannot 

reasonably infer that Pratt Jr. notified the Pratts of the lawsuit prior 

to November 18, 2014, based solely on his frequent visits to their 

home in 2012. 

¶ 34 Accordingly, we agree with the district court that the Estate 

failed to satisfy the notice element of Rule 15(c)’s relation-back test. 

In light of this conclusion, we find it unnecessary to decide the 

additional question of whether the Pratts should have known that, 

absent a mistake, they would have been named as defendants in 

the original action.9

III. Conclusion 

¶ 35 We affirm the entry of summary judgment in favor of the 

Pratts. 

JUDGE DAILEY and JUDGE FURMAN concur. 

 

9 By affirming on this ground, we do not mean to suggest that the 

district court erred in its conclusion that the original complaint 

would not have put the Pratts on notice of a PLA claim to be 

directed against them.