Corcoran-Koehn v. Carr

25CA1801 Corcoran-Koehn v Carr 10-22-2026 COLORADO COURT OF APPEALS Court of Appeals No. 25CA1801 Elbert County District Court No. 23PR30048 Honorable Theresa Slade, Judge Joni Corcoran-Koehn, individually as a Colorado resident and Joni Corcoran- Koehn, as personal representative for the Estate of Douglas Koehn, Plaintiffs-Appellants, v. Dill Dill Carr Stonbraker & Hutchings, P.C.; Christopher James Carr; and Frank Suyat, Defendants-Appellees. JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS Division II Opinion by JUDGE TAUBMAN* Fox and Martinez*, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 22, 2026 Todd Collins & Associates, LLC, Todd Collins, Marc B. Tull, Elizabeth, Colorado, for Plaintiffs-Appellants Ireland Stapleton Pryor & Pascoe, PC, Nancy L. Cohen, Aidan T. O’Neil, 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. 2026. ¶1 Plaintiff, Joni Corcoran-Koehn, as an individual and the personal representative of her husband’s estate, appeals the district court’s judgment dismissing her complaint alleging fraud and abuse of process against the attorneys who represented her mother-in-law, Joyce Koehn, in a forcible entry and detainer (FED) action against Corcoran-Koehn: Christopher James Carr; Frank Suyat; and their law firm, Dill Dill Carr Stonbraker and Hutchings, P.C. (collectively, the Attorneys). We affirm and remand the case to the district court for consideration of appellate attorney fees and costs. I. Background ¶2 Because the resolution of this appeal requires us to view the evidence in the light most favorable to Corcoran-Koehn, we take the following factual account from her complaint. ¶3 After Corcoran-Koehn’s husband passed away in July 2023, she continued to reside on his family’s ranch where the couple had built a home for themselves. When Corcoran-Koehn filed her husband’s estate inventory with the district court, she listed the home as his real estate. There were no objections. 1 ¶4 In February 2024, the Attorneys brought an FED action against Corcoran-Koehn on behalf of Koehn. Upon commencing the representation, Koehn informed the Attorneys that she had memory problems and that she had executed a power of attorney (POA) in 2015 naming her daughter, Lisa Yowell, as her agent. Koehn requested that the Attorneys keep Yowell — Corcoran-Koehn’s sister-in-law — apprised of the proceedings. The Attorneys did not investigate Koehn’s competency further. ¶5 Nearly three months later, Yowell provided the Attorneys with a letter from Koehn’s primary care provider, dated May 15, 2024, which described Koehn’s limited cognitive function: [Koehn] has been treated with medications for dementia since December 2022. . . . It has been noticed for the last 3-4 years [that Koehn] has difficulty with short term memory recall, names[,] and recent events. She asks repeated questions and repeats herself in conversations. She has not been taking care of her personal finances for over two years due to her confusion with numbers; she will see $700 instead of $7,000. [Koehn] has fallen four times in the last month. She has sustained numerous fractures from falling. On 5/14/24 her Mini-Mental State Examinations score was 19/30 which indicated cognitive impairment. 2  Without disclosing this letter or the POA to Corcoran-Koehn or the district court, the Attorneys sought an expedited trial under section 13-1-129(2), C.R.S. 2026, which authorizes the court to “grant a motion for a preferential trial date upon the motion of a party who is a natural person at least seventy years of age and a finding by the court that such claim is meritorious.”1 The Attorneys requested a preferential trial date, explaining Koehn was eighty-six years old. ¶6 At the case management conference in July, the district court granted the motion for a preferential trial date, scheduling the FED trial for mid-September. That same day, Corcoran-Koehn asked to depose Koehn. The Attorneys responded that they no longer believed Koehn could sit for a deposition because her health had worsened during the proceedings. In support, they attached the POA and the provider’s letter quoted above. The Attorneys moved to substitute Yowell — Koehn’s agent — as plaintiff in the FED action, 1 Generally, FED actions are subject to an expedited timeline by statute. See § 13-40-113(4)(a), C.R.S. 2026. Absent good cause, a district court must set a trial date within ten days of the answer being filed. Id. Under this statutory default, the FED action would have been scheduled for trial in mid-March 2024. However, the court found good cause to waive this requirement, prompting the Attorneys to seek an expedited timeline, under section 13-1-129(2), C.R.S. 2026, two months later. 3  explaining that Koehn had become incompetent during the proceedings.2 See C.R.C.P. 25(b) (“If a party becomes incompetent, the court . . . may allow the action to be continued by or against his representative.”). ¶7 Based on the foregoing facts, Corcoran-Koehn sued the Attorneys alleging fraud on the court and Corcoran-Koehn and abuse of process.3 The complaint summarized both claims as follows: [The Attorneys] wrongfully filed the lawsuit by concealing their client’s cognitive impairment from the Court and [Corcoran-Koehn] while depending on [Koehn’s] elderly status so that they may expedite the case and quickly deprive [Corcoran-Koehn] from property she is legally entitled to. According to Corcoran-Koehn, the Attorneys were “fully aware” at the outset of their representation that Koehn was “incompetent to serve as plaintiff” but still “illegally filed” the FED action on her behalf to “fast track the case” under section 13-1-129(2). 2 Koehn died on December 20, 2024, five months after this motion for substitution was filed. 3 Shortly after Corcoran-Koehn initiated this suit, the district court vacated the preferential trial date and substituted Yowell as plaintiff in the FED action. Corcoran-Koehn then filed an amended complaint, reasserting the claims against the Attorneys. 4  Corcoran-Koehn alleged she had “suffered damages in an amount to be determined at trial.” ¶8 The Attorneys moved to dismiss Corcoran-Koehn’s complaint for failing to state a claim upon which relief could be granted. See C.R.C.P. 12(b)(5). They argued that they had moved to substitute Koehn as plaintiff as soon as they “realized there was an issue with [her] understanding of the legal proceeding” and noted that the court had since vacated the preferential trial date. The district court granted the motion, finding the “overwhelming majority” of Corcoran-Koehn’s factual averments were legal conclusions not afforded a presumption of truth, and regardless, her claimed damages were not cognizable. ¶9 This appeal followed. II. Analysis ¶ 10 Corcoran-Koehn contends that the district court erroneously dismissed her complaint alleging fraud and abuse of process. Specifically, she appears to argue that (1) her complaint pleaded sufficient facts for both claims; (2) the court “fail[ed] miserably” at 5  taking judicial notice of facts from related cases that supported her claims;4 and (3) the court incorrectly analyzed damages. A. Standard of Review ¶ 11 We review de novo the district court’s ruling on a C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted, applying the same standards as the district court. Denv. Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). ¶ 12 In determining a C.R.C.P. 12(b)(5) motion to dismiss, the district court “may consider only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference, and matters proper for judicial notice.” Ritter, 255 P.3d at 1088. 4 As a preliminary matter, we admonish Corcoran-Koehn’ counsel for his pervasive use of inflammatory language. He accuses the district court of “fail[ing] to maintain any semblance of control or factual understanding”; of “obviously overlook[ing] or ignor[ing]” the facts; of shunting its duties to our court; and of issuing an “unorganized,” “far-reaching,” “highly unsupported conflictual” dismissal order, which relies on a “fantasy world.” Even if these accusations had merit — they do not — such language “debases both the legal profession and the judicial system.” Martin v. Essrig, 277 P.3d 857, 860 (Colo. App. 2011). In light of this language, we would be within our discretion to strike the brief or dismiss the appeal. In the interest of judicial economy, we instead caution counsel that future rule violations could result in sanctions. 6  Generally, the court must accept as true the facts alleged in the complaint and view them in the light most favorable to the plaintiff. Walker v. Van Laningham, 148 P.3d 391, 394 (Colo. App. 2006). However, the court is not required to accept as true either legal conclusions couched as factual allegations or factual allegations that run counter to facts of which the court can take judicial notice. See Ritter, 255 P.3d at 1088; Walker, 148 P.3d at 394. Additionally, the factual allegations must be “enough to raise a right to relief ‘above the speculative level.’” Warne v. Hall, 2016 CO 50, ¶ 9, 373 P.3d 588, 591 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). ¶ 13 We will uphold the district court’s grant of a C.R.C.P. 12(b)(5) motion to dismiss only if the plaintiff’s factual allegations fail as a matter of law to support a plausible claim for relief. Ritter, 255 P.3d at 1088. B. Fraud ¶ 14 We agree with the district court that Corcoran-Koehn failed to state a claim for fraud upon which relief can be granted. 7  1. Relevant Law ¶ 15 To state a plausible claim for relief for fraud, a plaintiff must plead facts sufficient to prove that the defendant (1) made a false representation of material fact; (2) knew the representation was false; (3) made the representation to the plaintiff who was ignorant of its falsity; (4) intended the plaintiff to act upon it; and (5) caused the plaintiff to rely on it to her detriment. Vinton v. Virzi, 2012 CO 10, ¶ 15, 269 P.3d 1242, 1247. To specifically plead fraud on the court, the plaintiff must establish extrinsic fraud, which goes to the jurisdiction of the court to hear a case. See Carbajal v. Wells Fargo Bank, N.A., 2020 COA 49, ¶¶ 33, 37, 467 P.3d 1262, 1270 (explaining that intrinsic fraud, such as the “nondisclosure to an adverse party and to the court of facts pertinent to a controversy before the court,” is not “fraud upon the court” (citation omitted)). Additionally, special pleading requirements apply to all fraud claims. See C.R.C.P. 9(b) (“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.”). 8  2. Discussion ¶ 16 Corcoran-Koehn’s complaint alleged that the Attorneys fraudulently represented Koehn as a competent party with the capacity to sue to expedite the FED action when they filed the complaint on her behalf, despite knowing she was an incompetent party lacking the capacity to sue. The factual allegations in the complaint fail as a matter of law to support a claim for relief for fraud on the court or herself. ¶ 17 As to the first two elements, Corcoran-Koehn’s complaint does not allege facts showing that the Attorneys falsely represented Koehn as competent at the outset of their representation because, as a threshold matter, Corcoran-Koehn failed to allege that Koehn was an incompetent party lacking the capacity to sue. Corcoran-Koehn disagrees, arguing that she “submitted a plethora of detailed facts” showing the Attorneys “knew that [Koehn] was incompetent when they began representing her”: (1) Koehn’s disclosure of memory problems and the POA; (2) Koehn’s request to keep Yowell informed; and (3) the provider’s 2024 letter, which Corcoran-Koehn claims provided “medical confirmation that [she] 9  was incompetent.”5 Given that the Attorneys received the provider’s letter months after filing the complaint, this letter does not support Corcoran-Koehn’s claim that the Attorneys knew of her alleged incompetence at the outset. However, even if we assume the Attorneys had this information when they filed the complaint, these alleged facts establish diminished capacity — not legal incompetence. The distinction is crucial. ¶ 18 An attorney may properly file a complaint on behalf of a client with diminished capacity. See Cox v. Armstrong, 221 P.2d 371, 373 (Colo. 1950) (“The modern rule is that [a] person [with diminished capacity] has a legal capacity to sue or be sued the same as [any] person, provided [s]he has not been divested of the power to act for [her]self by having been adjudicated incompetent and having been placed under guardianship.” (citation omitted)); see also In re Estate of Garcia, 2022 COA 58, ¶ 26, 516 P.3d 962, 967 (noting that a person cannot sue on behalf of another unless that person “has 5 Corcoran-Koehn’s complaint also includes repeated assertions that the Attorneys “concealed” how Koehn was “mentally incompetent.” We are not required to credit these legal conclusions about concealment or incompetence. See Walker v. Van Laningham, 148 P.3d 391, 394 (Colo. App. 2006). 10  been formally divested of the legal capacity to sue and be sued, by being adjudicated incompetent or by having been placed under guardianship as to person and property” (citation omitted)). Indeed, the Colorado Rules of Professional Conduct expressly contemplate attorneys bringing suits on behalf of clients with diminished capacity. See Colo. RPC 1.14 cmt. 2 (“Even if the [client with diminished capacity] has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.”). A client with diminished capacity does not lose her capacity to sue unless or until she is “adjudicated incompetent” or “placed under guardianship” as to person and property. Cox, 221 P.2d at 373 (citation omitted). Thus, despite Koehn’s diminished capacity, she had the legal capacity to sue at the outset of the FED action because she had never been adjudicated incompetent or placed under guardianship. ¶ 19 In asserting the sufficiency of her complaint, Corcoran-Koehn suggests that dementia proves a lack of capacity to sue. She relies in part on Colorado cases that have defined an “incompetent person” as including “one who is ‘mentally impaired to the degree of 11  being incapable of effectively participating’ in legal proceedings.” May v. Colo. Civ. Rts. Comm’n, 43 P.3d 750, 755 (Colo. App. 2002) (citation omitted). However, any reliance on this definition is misplaced. This broader definition of incompetence applies to parties petitioning the court for the procedural protections of C.R.C.P. 17(c). See May, 43 P.3d at 755 (stating the court must appoint an agent for an unrepresented incompetent party or issue other orders “as it deems proper for the protection of the . . . incompetent person” (quoting C.R.C.P. 17(c)). The lack of capacity to sue, in contrast, is defined by narrower contours: There must be either a formal adjudication of incompetence or a guardianship placement. See Cox, 221 P.2d at 373. Dementia, without more, did not divest Koehn of her capacity to sue. ¶ 20 After asserting that her complaint sufficiently pleaded fraud, Corcoran-Koehn argues that the district court should have taken judicial notice that the Attorneys withheld evidence she needed to plead fraud — namely, medical records “proving [Koehn’s] incompetency.” Her complaint does not mention these records, but we believe she refers to medical tests that the Attorneys procured in 12  their efforts to secure a protective order from the court to bar Corcoran-Koehn from deposing Koehn.6 ¶ 21 However, this line of argument fundamentally misses the point. Corcoran-Koehn asserts the Attorneys fraudulently represented Koehn as competent at the outset of the FED litigation in February 2024. The Attorneys procured these medical tests around September 2024 — seven months after the FED action commenced — to shield the now concededly incompetent Koehn from a deposition. Even if these records confirmed incompetence, and even if Corcoran-Koehn were legally entitled to access them, this evidence would not support her claim that the Attorneys fraudulently represented Koehn as competent at the outset of the FED litigation. For that claim, she needed to allege facts that 6 Counsel for Corcoran-Koehn filed a noncompliant brief. See C.A.R. 28. Despite invoking the complexity of this appeal — which he says involves five intertwined case records — his brief frequently omits record citations and legal citations and entirely omits the required preservation headers. See C.A.R. 28(a)(7)(A). Here too, we would be within our discretion to strike the brief or dismiss the appeal, as it is not our duty to search the record to support a party’s assertions. See Bruce v. City of Colorado Springs, 252 P.3d 30, 32 (Colo. App. 2010) (considering the merits despite a party’s noncompliant brief under C.A.R. 28). In the interest of judicial economy, we reviewed the record ourselves. 13  Koehn had already been adjudicated incompetent or placed under guardianship when the Attorneys filed the FED action. The later-acquired tests cannot retroactively establish that the earlier representation was false when made. ¶ 22 Because neither the facts alleged in the complaint nor the proposed adjudicative facts sufficiently plead fraud, we need not address Corcoran-Koehn’s third contention — that the court improperly analyzed damages. We therefore affirm the district court’s dismissal of the fraud claim. See Deutsche Bank Tr. Co. Ams. v. Samora, 2013 COA 81, ¶ 38, 321 P.3d 590, 597 (“An appellate court may affirm the trial court’s ruling based on any grounds that are supported by the record.”). C. Abuse of Process ¶ 23 For similar reasons, we conclude the district court properly dismissed Corcoran-Koehn’s abuse of process claim against the Attorneys. 1. Relevant Law ¶ 24 To state a plausible abuse of process claim, a plaintiff must plead facts sufficient to prove (1) the defendant’s ulterior purpose for using a judicial proceeding; (2) the defendant’s willful use of the 14  legal proceeding in an improper manner; and (3) resulting damage to the plaintiff. Walker, 148 P.3d at 394. ¶ 25 An “ulterior purpose” is one that the legal proceeding was not designed to accomplish. Mintz v. Accident & Inj. Med. Specialists, PC, 284 P.3d 62, 66 (Colo. App. 2010), aff’d, 2012 CO 50, 279 P.3d 658. If the defendant’s ulterior purpose was incidental to the proceeding’s proper purpose, there is no liability for abuse of process. Id. Additionally, using a legal proceeding in an “improper manner” requires proof of a defendant’s willful act while using a process that is not proper in the proceeding’s regular course. Id. 2. Discussion ¶ 26 Corcoran-Koehn’s complaint alleged abuse of process, arguing again that the Attorneys improperly brought an FED action on behalf of an incompetent party “so that they [could] achieve the wrongful objective of evicting [Corcoran-Koehn] quicker than what the laws of this State, the Rules of Procedure, and the court’s orders had allowed for had the complaint been rightfully filed.” On appeal, she adds that the Attorneys “improperly utilize[d] the FED process as substitute for the probate process” because they failed to object 15  to her husband’s estate inventory, which the district court “should have taken judicial notice of.” ¶ 27 Here too, the factual allegations in her complaint fail as a matter of law to support a claim for relief for abuse of process. To the extent that Corcoran-Koehn argues that the Attorneys’ ulterior motive was quickly evicting her, that is the precise purpose of an FED action. The Attorneys brought the action because Koehn, as the titled owner of the property, believed Corcoran-Koehn was unlawfully residing at the house. To the extent Corcoran-Koehn argues their ulterior motive was bypassing the probate proceedings, “there is no liability for abuse of process if the defendant’s ulterior purpose was simply incidental to the proceeding’s proper purpose” of evicting Corcoran-Koehn. Id. ¶ 28 Further, the complaint alleged no facts suggesting the Attorneys improperly used the FED proceeding. As explained above, the alleged facts fail to show that the Attorneys improperly brought the FED action on behalf of an incompetent party. Even if we assume Corcoran-Koehn’s secondary argument about bypassing probate is properly before our court, she still fails to provide any legal authority that it is improper for a party to bring an FED action 16  concerning a house built on real property, once a probate proceeding has listed the house as someone else’s real estate. Without such authority, and without allegations that the FED process was used in some irregular manner beyond seeking possession of the property, her claim cannot survive. Thus, we affirm the district court’s dismissal of the abuse of process claim. D. Attorney Fees and Costs ¶ 29 Both parties request their appellate attorney fees and costs under section 13-17-201, C.R.S. 2026.7 Section 13-17-201 provides that when a plaintiff brings an action because of an injury occasioned by a defendant’s alleged tort, the court must award reasonable attorney fees to the prevailing defendant. This award extends to defending dismissal orders on appeal. See Wark v. Bd. of Cnty. Comm’rs, 47 P.3d 711, 717 (Colo. App. 2002) (holding that 7 The Attorneys also appear to request their attorney fees for the “[u]nderlying [c]ase,” noting that the district court has not yet ruled on their pending motion for fees in that court. Until the district court grants or denies that motion, this issue is not ripe for appellate review. See Kennedy v. Gillam Dev. Corp., 80 P.3d 927, 929 (Colo. App. 2003) (“[A]n award of attorney fees is distinct and separately appealable from the judgment on the merits.”). 17  this mandatory award of attorney fees extends to defending a C.R.C.P. 12(b) dismissal order on appeal). ¶ 30 The district court dismissed all of Corcoran-Koehn’s claims against the Attorneys pursuant to their C.R.C.P. 12(b)(5) motion. Because we affirm the district court’s order on appeal, the Attorneys are entitled to an award of their appellate attorney fees and costs. See C.A.R. 39(a)(2) (“[I]f a judgment is affirmed, costs are taxed against the appellant.”). We remand this matter to the district court to determine the Attorneys’ reasonable appellate attorney fees under C.A.R. 39.1. The Attorneys may pursue their appellate costs in the district court by following the procedure set forth in C.A.R. 39(c)(2). III. Disposition ¶ 31 The judgment is affirmed, and the case is remanded to the district court under C.A.R. 39.1 and C.A.R. 39(c) for a determination of reasonable appellate attorney fees and costs. JUDGE FOX and JUSTICE MARTINEZ concur. 18