23CA1034 Davenport v Parrott 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1034
Larimer County District Court No. 22CV30471
Honorable Joseph D. Findley, Judge
Benjamin E. Davenport and Kirk A. Smith,
Plaintiffs-Appellants,
v.
Phillip A. Parrott and Campbell Killin Brittan & Ray, LLC, a Colorado limited
liability company,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE BERNARD*
Lipinsky and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Daniel W. Alexander, PLLC, Daniel W. Alexander, Fort Collins, Colorado, for
Plaintiffs-Appellants
Campbell, Wagner & Frazier, LLC, Colin C. Campbell, Greenwood Village,
Colorado; Bruno, Colin & Lowe P.C., Heidi Hugdahl, Denver, Colorado;
Campbell Killin Brittan & Ray, LLC, Bruce E. Rohde, Denver, Colorado for
Defendants-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Plaintiffs, Benjamin E. Davenport and Kirk A. Smith, to whom
we will refer collectively as “the officers,” appeal the trial court’s
decision to grant a summary judgment motion filed by defendants,
Phillip A. Parrott, to whom we will refer as “the lawyer,” and
Campbell, Killin, Brittan & Ray, LLC, to which we will refer as “the
law firm.” We affirm.
I. Background
¶ 2 In 2012, Mr. Davenport was the president and Mr. Smith was
the chief financial officer of a limited liability company called Blue
Point Pellets, LLC. Blue Point Pellets was a subsidiary of a limited
liability company called Blue Ocean Holdings, LLC. Three years
later, the officers resigned their positions.
¶ 3 In 2016, Blue Ocean hired an investigator to look into “the
financial affairs and business operations” of Blue Point Pellets.
¶ 4 About a year into the investigation, the investigator contacted
the lawyer, who was working at the law firm, and asked him for
input into the investigator’s proposed final report. The investigator
sought his advice because he had once served as a chief deputy
district attorney in charge of the Denver District Attorney’s
Economic Crime Unit. The investigator wanted him to read the
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proposed final report, to offer recommendations about which
criminal law statutes might apply to the officers’ conduct, and to
participate in a conference call with the leadership of Blue Ocean.
¶ 5 After the conference call, Blue Ocean contacted the District
Attorney’s Office in the Eighth Judicial District to report the officers’
alleged criminal conduct. The investigator and the lawyer then
attended an in-person meeting with the elected district attorney to
discuss the report. The lawyer offered to serve as a special deputy
district attorney in any criminal case that might be filed against the
officers.
¶ 6 According to the complaint, the lawyer was appointed to serve
as a special deputy district attorney in November 2017. But, at the
time of his appointment, the lawyer was apparently ineligible to
serve as a special deputy under section 20-1-201(c), C.R.S. 2023,
because he did not meet all the statutory requirements. Eventually,
the district attorney’s office realized this mistake, and, in 2018, the
lawyer was appointed to serve as a part-time deputy district
attorney. Working in that capacity, the lawyer helped to present
evidence to a grand jury. In a thirty-one-count indictment, the
grand jury indicted the officers.
3
¶ 7 In July 2019, the officers asked the court presiding over the
criminal case to disqualify the lawyer from serving as part-time
deputy district attorney. The court denied this motion, as well as
an amended motion asking it to reconsider its decision to deny the
original motion. The court also denied the officers’ request to call
the lawyer as a defense witness.
¶ 8 The officers eventually each pled guilty to a single felony
count. The court sentenced them to jail for ninety days, placed
them on probation for ten years, and ordered them to pay
restitution.
¶ 9 On July 17, 2022, the officers filed the complaint in this case
against the lawyer and the law firm, claiming that the lawyer had
committed the tort of abuse of process and that the law firm, via the
doctrine of respondeat superior, was also liable for that tort. The
attorney and the law firm asked the trial court to dismiss the
complaint.
¶ 10 The court granted the motion to dismiss. As is pertinent to
our analysis, the court decided that the officers had not timely filed
their complaint under section 13-80-102(1)(a), C.R.S. 2023, which
requires parties to file abuse of process claims within two years of
4
when the cause of action accrues. In other words, the court
decided that the officers’ abuse of process claim was barred by the
statute of limitations.
II. Statute of Limitations
A. Standard of Review and Applicable Law
¶ 11 We review a trial court’s ruling on a motion to dismiss de novo.
Hurtado v. Brady, 165 P.3d 871, 873 (Colo. App. 2007). A statute of
limitations issue may be decided as a matter of law “where it is
shown that the plaintiff discovered, or reasonably should have
discovered, the alleged tortious conduct as of a particular date.”
Colburn v. Kopit, 59 P.3d 295, 297 (Colo. App. 2002).
¶ 12 Tort actions for abuse of process “must be commenced within
two years after the cause of action accrues.” § 13-80-102(1)(a).
Such a claim accrues on the date when the plaintiff knew or should
have known by the exercise of due diligence that the alleged abuse
of process occurred. § 13-80-108(1), C.R.S. 2023; see also Colburn,
B. Analysis
¶ 13 The complaint raises two claims.
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¶ 14 The first is that the lawyer committed the tort of abuse of
process by “influenc[ing], induc[ing], and causing” the district
attorney’s office to
• “[i]mpanel a [g]rand [jury] to pursue indictments” against
the officers;
• “[u]nlawfully appoint” the lawyer as a special prosecutor;
and
• “[i]mproperly appoint” the lawyer to be the “de facto lead
prosecutor before the grand jury . . . to consider criminal
indictments based on the . . . same alleged conduct” that
the lawyer had told the district attorney was “criminal
conduct while acting in a private capacity on behalf of the
alleged victims.”
¶ 15 Once the lawyer became the “de facto lead prosecutor,” this
claim continued, he “continued to exploit and abuse this position to
pursue criminal indictments against” the officers, “irrespective of a
lack of evidence [to] . . . fulfill his ulterior purposes of using the
criminal process to enrich himself and others, either directly or
indirectly.”
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¶ 16 The second claim alleges that the law firm was responsible for
the lawyer’s alleged abuse of process under the doctrine of
respondeat superior.
¶ 17 Our review of the record indicates that the officers were aware
of the material facts on which they based the two claims more than
two years before they filed their lawsuit on July 17, 2022. As we
noted above, on July 19, 2019, they asked the court presiding over
the criminal case to disqualify the lawyer from his position as a
part-time deputy district attorney. In that motion, they argued that
the lawyer was acting as an agent of the crime’s victim — Blue
Ocean — because he had been paid by the investigator, who had, in
turn, been hired by Blue Ocean, when he met with the elected
district attorney. They wrote that the lawyer “has acted directly in
the employ of an alleged victim here and then participated in
discussions with law enforcement about the criminal charges and
thereafter was appointed to prosecute this matter.”
¶ 18 The officers contend that they could not have discovered the
nature of the lawyer’s prior involvement and conduct until July 17,
2020, when they received invoices from the law firm. They then
assert that the invoices from the law firm revealed that the lawyer
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actively asked to become a special prosecutor while he was still
working for Blue Ocean. But the motion to disqualify made the
same point, as reflected in the language from the motion to
disqualify the lawyer that we quoted in the preceding paragraph.
¶ 19 Accordingly, we conclude that the record supports the trial
court’s decision to dismiss the officers’ claims against the lawyer
and against the law firm because their lawsuit was filed after the
statute of limitations had run.
¶ 20 Next, the officers ask us to vacate the trial court’s order
awarding attorney fees and costs to the law firm. The officers do
not develop this contention, so we will not address it. See Holley v.
Huang, 284 P.3d 81, 87 (Colo. App. 2011).
¶ 21 Last, relying on C.A.R. 39.1, the lawyer and the law firm ask
us to award them appellate attorney fees and costs. They say that
the officers’ appeal was frivolous as filed because it did not “present
any rational legal argument” and that it was frivolous as argued
because the officers based their contentions on “egregious and
demonstrably false statements.” We decline this request for the
following reasons.
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¶ 22 Focusing on the sole issue that we have resolved in this appeal
— the officers’ contention that their claims were not barred by the
statute of limitations — we conclude that the appeal was not
frivolous as filed because we cannot say that the trial court’s ruling
was “so plainly correct and the legal authority contrary to [the
officers’] position so clear that there [was] really no appealable
issue.” See Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo.
App. 2006)(quoting Dungaree Realty, Inc. v. United States, 30 F.3d
122, 124 (Fed. Cir. 1994)). And we conclude that the appeal was
not frivolous as argued because, again zeroing in on the statute of
limitations issue, we cannot say that the officers “commit[ted]
misconduct in arguing the appeal.” See Martin v. Essrig, 277 P.3d
857, 862 (Colo. App. 2011).
¶ 23 The judgment is affirmed.
JUDGE LIPINSKY and JUDGE SCHUTZ concur.
