Frazier v. SummitStone Health

24CA0125 Frazier v SummitStone Health 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0125
Larimer County District Court No. 23CV160
Honorable Joseph D. Findley, Judge

James Frazier,

Plaintiff-Appellant,

v.

SummitStone Health Partners, a Colorado nonprofit corporation,

Defendant-Appellee.

APPEAL DISMISSED IN PART AND JUDGMENT AFFIRMED

Division I
Opinion by JUDGE LIPINSKY
J. Jones and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 19, 2024

James Frazier, Pro Se

Greenberg Traurig, LLP, Camille Papini-Chapla, Mary Katherine Andrews,
Denver, Colorado, for Defendant-Appellee
¶1 James Frazier appeals the district court’s orders dismissing

his breach of contract and negligence claims, and denying his

motions for injunctive relief, against SummitStone Health Partners.

We dismiss the appeal in part and otherwise affirm the judgment.

I. Background Facts and Procedural History

¶2 For purposes of reviewing the court’s orders, we accept the

factual allegations in Frazier’s pleadings as true. See Ditirro v.

Sando, 2022 COA 94, ¶ 31, 520 P.3d 1203, 1208. Frazier alleged

the following facts.

¶3 Frazier describes himself as “a person who is almost totally

blind” and who receives Social Security Disability Income (SSDI).

He has worked as an attorney, a stand-up comedian, and an

author.

¶4 In February 2023, after Frazier threatened violence against his

family and himself, the La Plata County Court entered an extreme

risk protective order (ERPO) against him under section

13-14.5-105, C.R.S. 2024. Frazier stipulated to entry of the ERPO.

¶5 Following entry of the ERPO, Frazier went to SummitStone for

“out patient mental health treatment.” On January 26, 2023,

SummitStone gave Frazier “a treatment plan that only addressed

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issues related to mental health and therapy.” (Because Frazier

attached the treatment plan to his complaint as an exhibit, we can

consider it as part of our de novo review of the court’s dismissal

orders. See Prospect Dev. Co. v. Holland & Knight, LLP, 2018 COA

107, ¶ 11, 433 P.3d 146, 149. To the extent that the treatment

plan contradicts Frazier’s allegations regarding that document, we

deem the language of the treatment plan controlling. “[I]n a motion

to dismiss, [a court] must take the plaintiff’s well-pleaded facts as

true, [but] when an exhibit . . . ‘incontrovertibly contradicts the

allegations in the complaint, the exhibit ordinarily controls, even

when considering a motion to dismiss.’” Esco v. City of Chicago,

107 F.4th 673, 678-79 (7th Cir. 2024) (quoting Bogie v. Rosenberg,

705 F.3d 603, 609 (7th Cir. 2013)).)

¶6 In his complaint, Frazier alleged that he “tendered” the

treatment plan to the La Plata County Court, the treatment plan

“was incorporated into the disposition” of the case in which the

court entered the ERPO, and his successful completion of the

treatment plan would “result in dismissal” of the ERPO case. (We

take judicial notice of the ERPO. See Doyle v. People, 2015 CO 10,

¶ 11, 343 P.3d 961, 965. Nothing in the ERPO supports Frazier’s

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allegation that, by completing the treatment plan, he could obtain a

dismissal of the ERPO case.)

¶7 Frazier contends that, although the treatment plan was

initially limited to group therapy and individual counseling

sessions, it was later expanded to include “wrap around services,”

including career counseling.

¶8 In May 2023, Frazier filed a civil action against SummitStone.

He asserted four claims, two of which — claims for breach of

contract and negligence — are the subject of this appeal.

¶9 In his complaint, Frazier alleged that the treatment plan was a

contract between himself and SummitStone. He further alleged

that “SummitStone breached [its] contract by providing services to

Mr. Frazier that were 1) not outlined in that contract, 2) not desired

by Mr. Frazier . . . and 3) that willful [sic] disregarded Mr. Frazier’s

eyesight issues and SSDI issues.” Specifically, Frazier contended

that SummitStone disregarded his desire for “assurance that they

will safeguard his SSDI benefits as they help him with employment

issues.” But nothing in the treatment plan refers to or addresses

Frazier’s SSDI benefits.

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¶ 10 Frazier pleaded that his continued eligibility for SSDI benefits

depends, at least in part, on the amount of income he receives

through his employment. He alleged that “SSDI has specific

timelines for launching a career” and that “SSDI benefits may

terminate if a person successfully launches a career.” For this

reason, he sought employment that would not impact his ability to

receive SSDI.

¶ 11 In addition, Frazier pleaded that SummitStone was negligent

because it failed to fulfill its “duty to investigate the issues that

mattered to [him], including eyesight issues, SSDI, and the legal

market in Colorado.”

¶ 12 Frazier later filed a “Supplemental Pleading,” in which he

reasserted his negligence claim and added allegations that

SummitStone had “interfered with [his] primary health insurance”

by “preventing [him] from terminating his Medicare Part B

insurance.”

¶ 13 In addition, in September 2023, he filed a motion for a

preliminary injunction to enjoin SummitStone from “having any

voice, vote, or opinion related to Mr. Frazier’s career, employment,

or income.” A week later, he filed a separate motion for “expanded

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injunctive relief” to enjoin SummitStone from “providing any service

to Mr. Frazier other than one hour counseling sessions.” The court

denied both motions in October 2023.

¶ 14 SummitStone subsequently moved to dismiss Frazier’s claims

for failure to state a claim under C.R.C.P. 12(b)(5). The court

granted SummitStone’s motion.

¶ 15 Frazier appeals the orders denying his motions for injunctive

relief and granting SummitStone’s motion to dismiss.

II. Analysis

A. Frazier’s Motions for Injunctive Relief Are Moot

¶ 16 As an initial matter, we hold that Frazier’s motions for

injunctive relief are moot.

¶ 17 We lack jurisdiction to review moot issues. See Davidson v.

Comm. for Gail Schoettler, Inc., 24 P.3d 621, 623 (Colo. 2001)

(“Courts must confine their exercise of jurisdiction to cases that

present a live case or controversy.”). “A case is moot when a

judgment, if rendered, would have no practical legal effect upon the

existing controversy.” Van Schaack Holdings, Ltd. v. Fulenwider,

798 P.2d 424, 426 (Colo. 1990). “The general rule is that when

issues presented in litigation become moot because of subsequent

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events, an appellate court will decline to render an opinion on the

merits of an appeal.” Id. at 426-27.

¶ 18 In his motions for injunctive relief, Frazier sought orders

enjoining SummitStone from providing any further career

counseling to him. We conclude that such an order “would have no

practical legal effect upon the existing controversy,” id. at 426, and

is therefore moot, for two reasons.

¶ 19 First, as the court observed, Frazier conceded that his

treatment plan “only addressed issues related to mental health and

therapy.” Nothing in the treatment plan or the ERPO provided that

SummitStone could compel Frazier to accept additional services he

did not wish to receive. Accordingly, at all times relevant to this

appeal, Frazier possessed the power to terminate the career

counseling. In correspondence that Frazier attached as an exhibit

to one of his filings in the district court, SummitStone confirmed

that Frazier

made clear that you do not wish to have
SummitStone Health Partners, or its staff . . .
assist you with any employment-related
endeavors for you in connection with your
care. We can certainly agree to that under
your current care plan, which lack[s] any

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government agency orders to provide such
services to you.

¶ 20 Frazier acknowledged this communication but informed

SummitStone that he would nonetheless seek judicial relief to

ensure that SummitStone did not provide him with career

counseling.

¶ 21 Second, and more significantly, Frazier left SummitStone after

filing this case, telling SummitStone that he was “terminat[ing]

treatment” because he “did what [he] needed for the ERPO.” Frazier

provides no support for his contention that SummitStone could

force him to engage in any form of treatment or career counseling.

The treatment plan does not say that SummitStone can force

Frazier to do anything. Thus, entry of the preliminary injunctions

that Frazier sought would be meaningless; his motions for

preliminary injunction are moot because any order granting them

would “have no practical legal effect upon the existing controversy.”

Id.

¶ 22 For these reasons, we dismiss Frazier’s appeal of the court’s

denial of his motions for injunctive relief. (Frazier’s breach of

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contract and negligence claims are not similarly moot because, in

those claims, he sought money damages from SummitStone.)

B. The Court Correctly Dismissed Frazier’s
Breach of Contract and Negligence Claims

1. Standard of Review

¶ 23 “We review de novo a trial court’s ruling on a motion to

dismiss.” Patterson v. James, 2018 COA 173, ¶ 16, 454 P.3d 345,

350. “We apply the same standards as the trial court, accepting all

of the factual allegations in the complaint as true and viewing those

allegations in the light most favorable to the plaintiff.” Id.

¶ 24 “To survive summary dismissal for failure to state a claim

under Rule 12(b)(5), a party must plead sufficient facts that, if

taken as true, suggest plausible grounds to support a claim for

relief.” Id. at ¶ 23, 454 P.3d at 351; see also Warne v. Hall, 2016

CO 50, ¶ 15, 373 P.3d 588, 593.

2. The Court Correctly Dismissed the Breach of Contract Claim

¶ 25 Frazier alleged that SummitStone breached the alleged

contract — his treatment plan — by providing him with services not

specified in the treatment plan or that he did not want — career

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counseling — and by allegedly ignoring his eyesight and SSDI

issues.

¶ 26 To state a breach of contract claim, a plaintiff must allege (1)

the existence of a contract; (2) performance by the plaintiff or some

justification for nonperformance; (3) failure to perform the contract

by the defendant; and (4) resulting damages to the plaintiff. See W.

Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992).

¶ 27 The court dismissed Frazier’s breach of contract claim for two

reasons. First, the court concluded that Frazier had not pleaded a

“bargained-for exchange” between himself and SummitStone

because although Frazier argued that SummitStone “receives

financial compensation from Medicaid in exchange for mental

health services,” he “did not plead this fact or any other facts

showing valuable consideration.” The court noted that “insurance

payments to [SummitStone] would not be considered valuable

consideration,” citing Bailey v. Allstate Insurance Co., 844 P.2d

1336, 1339 (Colo. App. 1992).

¶ 28 Second, the court concluded that Frazier failed to plead “any

damages other than the generic statement that he was ‘damaged by

this conduct,’” meaning SummitStone’s provision of career

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counseling services to him. The court further noted that, “this

conduct being voluntary, [Frazier] is free to cease services through

[SummitStone] as he wishes.”

¶ 29 We affirm the court’s dismissal of Frazier’s breach of contract

claim because, even assuming his treatment plan constituted a

contract, Frazier failed to plead sufficiently that the purported

breach resulted in damages to him.

¶ 30 Specifically, Frazier failed to plead a plausible claim that the

three actions that constituted the purported breach of contract —

providing services “not outlined in that contract,” providing services

“not desired by . . . Frazier,” and willfully disregarding Frazier’s

“eyesight issues and SSDI issues” — caused him damages.

Frazier’s breach of contract claim contains the conclusory

statement that he “was damaged by” SummitStone’s breach of the

treatment plan. The complaint does not indicate how any of those

alleged breaches could have resulted in damages to Frazier.

¶ 31 Frazier identifies only one specific example of damages

attributable to SummitStone. And those damages are speculative.

He alleged that, since he began performing standup comedy at

“Comedy Fort,” someone followed him home from the club. Frazier

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alleged that “SummitStone damaged . . . Frazier if they sent

employees to Comedy Fort to follow him.” But these alleged

damages do not relate to the treatment plan.

¶ 32 In sum, Frazier did not allege that he lost any benefits or

income as a consequence of SummitStone’s purported breach of

contract. Therefore, Frazier’s breach of contract claim is not

plausible and must be dismissed. See Adams Cnty. Hous. Auth. v.

Panzlau, 2022 COA 148, ¶ 51, 527 P.3d 440, 449-50 (“[D]espite the

liberality of modern rules of pleading, a complaint still must contain

either direct or inferential allegations respecting all the material

elements necessary to sustain a recovery under some viable legal

theory.” (quoting Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th

Cir. 2008))).

¶ 33 Accordingly, we hold that the court correctly dismissed

Frazier’s breach of contract claim.

3. The Court Correctly Dismissed the Negligence Claim

¶ 34 Frazier’s complaint articulates an expansive theory of

negligence — that “SummitStone had a duty to investigate the

issues that mattered to [Frazier] including eyesight issues, SSDI,

and the legal market” and breached that duty.

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¶ 35 To establish a negligence claim, a plaintiff must plead (1) a

legal duty of care; (2) breach of that duty; (3) injury; and (4)

causation. N.M. v. Trujillo, 2017 CO 79, ¶ 23, 397 P.3d 370, 374.

¶ 36 The court concluded that, “[a]lthough there are arguably

sufficient facts [pleaded] for purposes of establishing [a] duty to

[Frazier], [his] claim for negligence cannot proceed because of [his]

lack of injury.” Specifically, the court said that Frazier’s alleged

“damages are hypothetical” and he “pleads no other facts of an

actual loss in income, only the potential for benefits to be affected.”

¶ 37 We hold that the court correctly dismissed Frazier’s negligence

claim. As explained above, Frazier did not plead a plausible claim

that he suffered any injury — such as a loss of SSDI — as a result

of SummitStone’s alleged breach of a duty it owed to him.

Moreover, his negligence claim only alleged potential future

damages. Thus, we need not decide whether SummitStone owed a

duty of care to Frazier and, if so, whether SummitStone breached it.

III. Attorney Fees

¶ 38 SummitStone requests an award of attorney fees under C.A.R.

38(d), on the grounds that “Frazier’s appeal is frivolous as it is moot

and meritless, without a rational argument based on evidence or

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law to support his claims.” We decline to grant this undeveloped

request. See C.A.R. 39.1 (“If attorney fees are recoverable for the

appeal, the principal brief of the party claiming attorney fees must

include a specific request, and explain the legal and factual basis,

for an award of attorney fees. Mere citation to this rule or to a

statute, without more, does not satisfy the legal basis

requirement.”); Sos v. Roaring Fork Transp. Auth., 2017 COA 142,

¶ 59, 487 P.3d 688, 701 (declining to grant undeveloped request for

appellate fees).

IV. Disposition

¶ 39 The appeal is dismissed in part and the judgment is affirmed.

JUDGE J. JONES and JUDGE SULLIVAN concur.

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