Parsons v. Timberline

24CA0257 Parsons v Timberline 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0257
Mesa County District Court No. 21CV30267
Honorable Richard T. Gurley, Judge

Robb Parsons,

Plaintiff-Appellant,

v.

Timberline Bank, Angela Johnson, and Doug May,

Defendants-Appellees,

and

WealthSource Partners, LLC,

Defendant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 05, 2024

Wegener Lane & Evans, P.C., Benjamin M. Wegener, Brendan Reilly, Grand
Junction, Colorado, for Plaintiff-Appellant

Lewis Roca Rothgerber Christie LLP, Susan S. Sperber, Joseph Hykan, Denver,
Colorado, for Defendant-Appellee Timberline Bank

Miletich PC, Amy L. Miletich, James M. Miletich, Denver, Colorado, for
Defendant-Appellee Angela Johnson
Starritt Legal, LLC, Sam D. Starritt, Grand Junction, Colorado, for Defendant-
Appellee Doug May
¶1 In this civil action for breach of contract, interference with

contractual relations, and civil conspiracy, plaintiff, Robb Parsons,

appeals the district court’s grant of summary judgment in favor of

defendants, Timberline Bank, Angela Johnson, and Doug May. We

affirm.

I. Background

¶2 Parsons, an investment advisor, previously worked at Wells

Fargo Private Bank as part of a team with Johnson, a private

banker. When he was laid off in late 2018, Parsons joined

WealthSource Partners (WP) to provide investment services to their

clients. WP leased office space in a Timberline Bank branch, and

Parsons and Johnson, who remained at Wells Fargo, continued to

provide financial services to their mutual clients.1 Doug May was a

financial investment advisor for WP.

¶3 After leaving Wells Fargo, Parsons spoke to Johnson and

another team member, Robert Tesch, about forming a new business

and working with WP to provide investment services. The venture

1 Robert Tesch, another financial advisor who was part of the team

at Wells Fargo, followed Parsons to WP, but is not a party in this
appeal.
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involved referring his and Tesch’s investment clients at WP to

Timberline for private banking services. Parsons asked Johnson to

be equal partners with him in the Timberline venture; however,

Johnson declined because of the financial risks associated with

starting a new business and because she did not believe it was in

her clients’ best interests.

¶4 After further negotiations, Johnson eventually left Wells Fargo

and joined Timberline as a private banker. She brought many of

her existing Wells Fargo clients with her, including clients who

received investment advice from Parsons. Maintaining a common

group of clients was made possible by a solicitation agreement

between WP and Timberline. Under the agreement, Timberline

introduced its private banking clients to WP in exchange for a fee.

Parsons was not a party to the agreement, and there was no

“ownership” of clients since the clients were free to move their

money at any time. Parsons never executed a written employment

contract with WP but instead worked as an at-will employee.

¶5 On August 10, 2021, police arrested Parsons on an

outstanding warrant for violating a protection order entered in a

domestic relations case. He was released on August 16, but, in

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violation of WP’s compliance policies and procedures, he failed to

immediately report his arrest to WP. WP learned of Parsons’ arrest

several days after his release and initiated its own investigation. On

August 20, 2021, WP terminated Parsons for violating company

policy by failing to promptly report his arrest.

¶6 WP and Timberline then developed a script used to contact

Parsons’ clients and to inform Timberline employees of Parsons’

termination. The script said that WP had terminated its

relationship with Parsons, that Parsons no longer had access to

account systems, that client assets would continue to be managed

by WP financial professionals, and that Parsons no longer had

access to Timberline facilities or team members. Johnson was

tasked with notifying clients she shared with Parsons of his

termination. To ensure client continuity, WP hired Johnson to

replace Parsons on August 26, 2021.

¶7 Parsons filed his initial complaint in October 2021 and an

amended complaint in April 2022. As relevant here, he alleged that

Johnson, Timberline, and May intentionally interfered with his

employment contract with WP, intentionally interfered with his

contractual relationships with clients, and civilly conspired to

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accomplish such interference.2 His allegations were based in part

on a series of emails exchanged between Johnson and May in

March and April 2021 (Exhibit 6), months before his arrest.

Johnson considered May a mentor and expressed dissatisfaction

with her current employment and possible career paths. She

sought May’s advice on how she should proceed, particularly

considering Parsons’ desire to retire in 2025. Excerpts relied on by

Parsons for his interference claims include an email from May to

Johnson stating,

What I’m saying is that in the event you felt
like it was in clients [sic] best interest to move
QUICKLY away from Robb, the best bet would
be to line up something with one of these
outside firms, rather than create your own
[Registered Investment Advisor] or create an
alternative within the WealthSource universe.
Hopefully, that’s not something that will need
to happen. If it did, however, I could make
some introductions. This email will self-
destruct (I wish) in 15 seconds . . . No, didn’t
happen? Darn.

¶8 Another email from May to Johnson, in which May relays to

Johnson a list of thoughts regarding each party, read as follows:

2 He also alleged defamation claims, which have been withdrawn

and dismissed; a breach of contract claim against WP that is not
before us on appeal; and an exemplary damages also dismissed.
4
The suggestion I’ve outlined provides Angela
with additional support from the new
WealthSource advisor, will increase her
compensation through the 25% solicitation fee
that Timberline would receive on the $40MM
book of business (perhaps $60K-75K/year),
and it will give her a slice (10-20%) of the
TLWM de novo [Registered Investment Advisor]
that would ultimately be launched to manage
this book of business. By getting a new
successor WealthSource advisor in the mix,
now, there will be greater client satisfaction
and retention when Robb ultimately decides to
transition out and it provides capacity, now
lacking, to continue building a larger book of
business, including smaller mass affluent
accounts. Robb will be able to enjoy his easy
schedule and terrific salary for a longer period
of time, without worrying about the problems
created by the lack of support he is providing
Angela. While monetizing the book of business
is nice, the longer he can relax with his $750K
gig, the better off he’ll be because he will
always have the monetization option at the
end. However, he will also have to reduce his
current level of compensation in order to lock
in “easy street.” He will not want to do this,
but his alternative is that he and a new
Timberline entity go head to head to compete
for the clients, which simply leaves both
parties worse off.

¶9 Another email from May to Johnson read,

My personal belief is that this proposed
solution is a Win-Win-Win-Win-Win-Win. The
greatest difficulty will be getting Robb’s
agreement. However, this difficulty is not a
reflection of the quality of the proposal, so

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much, as the fact that Robb is now getting the
lion’s share of the economic benefits of leaving
Wells Fargo, while Timberline Bank (Angela) is
doing much of his work for him. The
unfairness of the status quo naturally leaves
him feeling like he will be disadvantaged by
this proposal. However, if the status quo
cannot continue for much longer, and if he will
be much worse off if he fails to renegotiate and
the current working relationship dissolves,
along with the current partnership, then he
(and WealthSource) will be much worse off if
he doesn’t agree to renegotiate the original
terms. If the attempt to negotiate a more
equitable partnership agreement with Robb
fails, then Angela and Timberline Bank have
other options, however it is difficult to imagine
that those options will incorporate
WealthSource Partners in the vendor mix and
these “hard ball” alternatives are not discussed
here.

¶ 10 Parsons also relied on a picture of a text message thread sent

the day before Parsons’ termination between Johnson and Bryan

Sullivan, the CEO of WP (Exhibit 9). The messages read,

Sullivan: I’ve got a really weak signal. I’ll give
you a call tonight.

Johnson: Ian [sic] available now and then
again after 3pm mountain time.

Sullivan: Angella…I went and had the call this
morning with the rest of the team. When you
and Doug have a minute, feel free to call me
and I’ll catch you up.

Johnson: Yes I should be available.

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Sullivan: I’m on the other line, can I call you
back in a few minutes?

¶ 11 In response to the above emails and texts, Exhibit 6 also

included one email response from Johnson to May which read,

Anne had mentioned to [sic] that you would be
joining the board. Congrats, you will be a
great addition. I am glad you had a good time
in Frisco even if you did suffer from altitude
sickness. My husband suffers at about the
same elevation, and he is a lifelong resident
also. Should we have lunch again in the next
couple of weeks, so I can share my thoughts
since our last conversation?

¶ 12 The defendants each filed a motion for summary judgment,

and the district court granted summary judgment in their favor on

the intentional interference and civil conspiracy claims.

II. Contractual Interference with WP

¶ 13 Parsons contends that the district court erroneously granted

summary judgment in favor of Johnson on his contractual

interference claim with WP. He reasons that Johnson induced WP

to terminate his employment for Johnson’s and May’s benefit and

that Exhibits 6 and 9 establish genuine issues of material fact. We

are not persuaded.

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A. Standard of Review and Applicable Law

¶ 14 We review a grant of summary judgment de novo. W. Elk

Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo. 2002).

Summary judgment should be granted only when the pleadings and

the supporting documentation show that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law. Id.; see also C.R.C.P. 56(c). “The

nonmoving party is entitled to the benefit of all favorable inferences

from the undisputed facts, and all doubts as to the existence of a

triable issue of fact must be resolved against the moving party.” W.

Elk Ranch, 65 P.3d at 481.

¶ 15 A “material fact” is one that will affect the outcome of the case

or claim. Thompson v. Md. Cas. Co., 84 P.3d 496, 501 (Colo. 2004).

In determining whether a genuine issue of material fact exists, we

consider “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any.”

C.R.C.P. 56(c). “The moving party bears the initial burden of

showing no genuine issue of material fact exists; the burden then

shifts to the nonmoving party to establish a triable issue of fact.”

Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 20. All favorable

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inferences that can be drawn from the record must be resolved in

favor of the nonmoving party. People in Interest of S.N. v. S.N., 2014

CO 64, ¶¶ 15-16.

¶ 16 In meeting their burdens, both parties must present, or

establish the existence of, evidence that would be admissible at

trial. C.R.C.P. 56(e). Triable issues of fact cannot be raised

through argument, conjecture, denials in the pleadings, or

assertions of legal conclusions unless they are supported by

evidence. S.N., ¶17 (quoting Ginter v. Palmer & Co., 585 P.2d 583,

585-86 (Colo. 1978)).

¶ 17 To be found liable for intentional interference with a contract,

a defendant must (1) be aware of a contract between two parties;

(2) intend that one of the parties breach the contract; and (3) induce

the party to breach or make it impossible for the party to perform

the contract. Slater Numismatics, LLC v. Driving Force, LLC, 2012

COA 103, ¶ 24. Additionally, the defendant must act “improperly”

in causing the result. Id. (quoting Krystkowiak v. W.O. Brisben

Cos., 90 P.3d 859, 871 (Colo. 2004)).

¶ 18 In deciding whether an actor’s conduct in intentionally

interfering with a contract or a prospective contractual relation of

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another is improper, courts consider (1) the nature of the actor’s

conduct; (2) the actor’s motive; (3) the interests of the other with

which the actor’s conduct interferes; (4) the interests sought to be

advanced by the actor; (5) the social interests in protecting the

freedom of action of the actor and the contractual interests of the

other; (6) the proximity or remoteness of the actor’s conduct to the

interference; and (7) the relations between the parties. Westfield

Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112, 1117–18 (Colo. 1990)

(citing Restatement (Second) of Torts § 767 (Am. L. Inst. 1979)).

B. Analysis

¶ 19 Based on our de novo review of the record, we conclude there

is no issue of material fact concerning Johnson’s alleged

interference with Parsons’ employment contract with WP and thus,

discern no legal error by the court in granting summary judgment

on this claim.

¶ 20 Parsons relies on Exhibits 6 and 9 to infer that Johnson and

May were conspiring to take over his book of business at WP. He

further argues that Johnson improperly informed WP and his

clients of his arrest. We are not convinced because the undisputed

10
record shows that WP terminated Parsons because Parsons violated

company policy by failing to timely inform WP of his arrest.

¶ 21 To begin, the parties do not contest that Johnson knew of

Parsons’ employment relationship with WP. Whether that contract

was written or oral does not affect the outcome of the interference

claim. However, Parsons does not identify any specific

communication in Exhibit 6 (or Exhibit 9) that states, much less

suggests, that Johnson improperly induced or intended WP to

terminate his employment. To the contrary, the communications

discuss possible future business arrangements, some of which

included Parsons, and they noted Parsons’ continued receipt of

income from WP. And while we acknowledge that we must construe

inferences in favor of the nonmoving party, we discern nothing in

these exhibits from which we can reasonably infer Johnson’s

wrongful conduct. Indeed, most of the communications were

initiated by May, not Johnson, and her single response reveals

nothing indicating wrongful conduct, a necessary element of

contractual interference.

¶ 22 In any event, the record contains multiple documents,

including the company’s policies and WP’s termination letter,

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demonstrating that WP terminated Parsons because he had failed to

timely disclose his arrest. Included in those documents are letters

sent from WP to Parsons stating that WP had become aware that

Parsons was wrongly informing his former clients (after his arrest)

that Johnson was responsible for his termination and reminding

Parsons that his violation of company policy, not Johnson’s

conduct, was the reason he was terminated. While Parsons may

believe Johnson was responsible for his termination, he produced

no evidence to counter the undisputed record evidence

demonstrating that WP terminated Parsons for violating company

policy.

¶ 23 Finally, we are not convinced that the text message exchange

in Exhibit 9 or the potential phone call between Johnson and WP’s

CEO the day before WP terminated Parsons demonstrates

Johnson’s wrongful conduct. First, there is only speculation, no

evidence, that the phone call ever occurred. Moreover, even if

Johnson had informed WP of Parsons’ arrest, it would not

constitute interference with a contractual relationship because it

does not constitute wrongful conduct.

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¶ 24 Additionally, the undisputed record shows that Timberline

developed a script for informing Parsons’ clients of his termination

and that Johnson contacted Parsons’ former clients at Timberline’s

request using that script. And Parsons identifies nothing in the

record showing that Johnson acted on her own to cause his

termination. Thus, the record shows no wrongful conduct.

¶ 25 Because litigants cannot avoid summary judgment by merely

asserting a fact without any evidence to support it, Norton v.

Dartmouth Skis, Inc., 364 P.2d 866, 868 (Colo. 1961), we discern no

error in the court’s ruling granting Johnson’s motion for summary

judgment on the contractual interference claim.

III. Contractual Interference with Clients

¶ 26 Parsons next contends that the district court erroneously

granted summary judgment in favor of Johnson, Timberline, and

May on his contractual interference with clients claim. He asserts

that Johnson veered from the prepared script and, instead, told

clients that Parsons had “done a lot of bad things” and had “been in

jail for six days so he must have done something really bad.”

Parsons also asserts that May told his former clients that he agreed

13
with Parsons’ termination. For the same reasons described above,

we discern no legal error.

A. Analysis

¶ 27 Applying the previously described legal principles related to

summary judgment and intentional interference, we conclude that

summary judgment was proper, for four reasons.

¶ 28 First, Parsons provided no evidence to show that he possessed

some type of ownership over his client base. Indeed, the

undisputed record shows that Parsons’ former clients were WP’s

clients and that they were free to change advisors or leave WP at

will.

¶ 29 Second, nothing in the record shows that any of Parsons’

former clients were contacted until after WP terminated him. And

because Parsons was no longer employed, such contact necessarily

could not have interfered with an existing client relationship.

¶ 30 Third, we are not convinced that Parsons’ deposition

testimony, asserting that Johnson had bad-mouthed him to his

clients, established wrongful conduct because he presented no

affidavits or other evidence from any former client saying this had

occurred. Moreover, when asked about Johnson’s alleged

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statements, Parsons admitted, “I don’t know exactly the details of

what she told them.”

¶ 31 Finally, to the extent Parsons contends that Exhibits 6 and 9

show interference with his clients, we disagree and conclude,

consistent with our conclusion above, that those communications

contain no evidence of an intention or an inducement to interfere

with Parsons’ existing client base but, instead, reflect a potential for

future business arrangements. Parsons presented no evidence to

show that anything discussed in those communications came to

fruition.

¶ 32 Accordingly, we affirm the court’s summary judgment ruling

on Parsons’ intentional interference with clients claim.

IV. Civil Conspiracy

¶ 33 Parsons last contends that the district court erroneously

granted summary judgment in favor of Johnson, Timberline, and

May on his civil conspiracy claim. We disagree.

¶ 34 A claim of civil conspiracy requires the plaintiff to establish

five elements: (1) two or more persons; (2) an object to be

accomplished; (3) a meeting of the minds on the object or course of

action; (4) one or more unlawful overt acts; and (5) damages as the

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proximate result thereof. Walker v. Van Laningham, 148 P.3d 391,

396 (Colo. App. 2006). Civil conspiracy is a derivative cause of

action. Rosenblum v. Budd, 2023 COA 72, ¶ 51. Therefore, “[i]f the

acts alleged to constitute the underlying wrong provide no cause of

action, then there is no cause of action for the conspiracy itself.” Id.

(quoting Double Oak Constr., L.L.C. v. Cornerstone Dev. Int’l, L.L.C.,

97 P.3d 140, 146 (Colo. App. 2003)).

¶ 35 For the reasons previously described, we have concluded that

Parsons failed to prove his contractual interference claims. And

because he has failed to prove the underlying wrong, there is no

cause of action for conspiracy to commit contractual interference.

See id. Accordingly, we discern no error in the district court’s grant

of summary judgment on the civil conspiracy claim.

V. Disposition

¶ 36 The judgment is affirmed.

JUDGE GROVE and JUDGE LUM concur.

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