Davenport v. Parrot

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.

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¶ 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.

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¶ 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

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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,

59 P.3d at 296-97.

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.