Conte v. Frazar

• Court: Colorado Court of Appeals
• Decided: October 9, 2025
• Docket: 24CA1586
• Status: Unpublished

Opinion

24CA1586 Conte v Frazar 10-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1586 Boulder County District Court No. 23CV101 Honorable J. Keith Collins, Judge

John Conte,

Plaintiff-Appellant,

v.

Edward Frazar, Jr.,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE MOULTRIE Tow and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 9, 2025

John Conte, Pro Se

Murphy & Decker, P.C., Michael J. Decker, M. Taylor Kruse, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiff, John Conte, appeals the district court’s judgment

dismissing his complaint against defendant Edward Frazar, Jr. We

affirm.

I. Background

¶2 Conte filed a complaint in September 2023, asserting various

claims against Frazar and others.1 As best we understand, Conte’s

claims, which are related to the construction of his home and his

prior employment relationship with Frazar, include the following

allegations: negligence, interference with the formation of a

contract, breach of contract, conspiracy, violations of Colorado’s

criminal code, wrongful termination, housing discrimination, and

general constitutional violations.

¶3 Construction of Conte’s home began in 1991 and was

substantially completed in 1992. Frazar was an engineer who

assisted in drafting the structural design plans for Conte’s home.

Conte alleges that Frazar’s defective structural design plans caused

him to fail an inspection, which resulted in Conte losing his original

1 The record doesn’t show that Conte served the other named

defendants before the court entered the judgment dismissing his complaint. The other named defendants therefore aren’t parties to this appeal.

1 financing for the construction of the home, along with other

financial losses due to construction delays. He also alleges that

Frazar and Frazar’s supervisor conspired with each other to

intentionally design a flawed structural plan meant to kill or

seriously injure Conte.

¶4 Conte also alleges that he and Frazar worked at the same state

agency where Frazar served as Conte’s supervisor. Conte asserts

that Frazar, while serving in that supervisory role, discriminated

against him based on his religious affiliation and that Frazar’s

religious discrimination amounted to a violation of fair housing

laws — although it’s not clear whether he makes this claim in

relation to the home construction allegations, the employment

allegations, or both.

¶5 Frazar filed a motion to dismiss Conte’s complaint (the

motion). The motion alleged in relevant part that, given the age of

the allegations underlying his claims, Conte’s claims are time

barred by any applicable statutes of limitation or repose.

¶6 Conte failed to file a timely response. Frazar filed a reply in

support of the motion on December 11, 2023, after Conte’s

2 response deadline had passed; the court granted the motion that

same day. In its order, the court said,

What the Court was able to discern from reading the Complaint is that the majority of the conduct referenced occurred more than thirty years ago, and the most recent conduct mentioned in the Complaint appears to have been in 2011. The Court also notes Plaintiff failed to file a Response to Defendant’s Motion to Dismiss or provide the Court with any explanation that would justify the untimely filing of the claims in this matter.

Accordingly, the Court finds that all conceivable asserted claims in the Complaint are time-barred. The Court adopts the legal basis, outlined in Defendant’s Motion to Dismiss, as its own, in support of its finding that Plaintiff’s claims are time-barred by the applicable statute[s] of limitations and statute of repose.

¶7 Ten days later, Conte filed a response opposing the motion,

but the court, noting that the case had already been dismissed,

didn’t take any action on Conte’s response.

¶8 On August 1, 2024, Conte filed a motion requesting that the

court hold a hearing. On August 5, 2024, the court issued a “no

action taken” order in response to that motion, again noting that

the case had been dismissed and referring Conte to its December

11, 2023, order.

3 ¶9 Conte filed his notice of appeal challenging the dismissal of his

case on September 5, 2024.

¶ 10 Because Conte filed his notice of appeal nearly nine months

after the court entered the judgment dismissing his complaint, this

court issued a show cause order that required Conte to

demonstrate why his appeal shouldn’t be dismissed with prejudice

for being untimely. Conte responded that he didn’t receive notice of

the order of dismissal until August 2024 after he filed the motion

requesting the court to hold a hearing. This court therefore

discharged the show cause order.

¶ 11 On appeal, Conte asserts that the statutes of limitation and

statute of repose don’t time bar his claims because of fraudulent

concealment and equitable tolling. For the reasons below, we

disagree and conclude that his claims are time barred.

II. Applicable Legal Principles

A. Appellate Jurisdiction

¶ 12 “The timely filing of a notice of appeal is a jurisdictional

prerequisite to appellate review.” Estep v. People, 753 P.2d 1241,

1246 (Colo. 1988). C.A.R. 4(a) requires that appellants file their

notice of appeal within forty-nine days after the court enters a final

4 judgment. C.A.R. 4(a)(1). Pursuant to C.R.C.P. 58(a), when a court

enters judgment and a party isn’t present, the court must

immediately mail the judgment to each absent party. And, under

C.A.R. 4(a)(5), if a court mails a judgment to an absent party, the

deadline to file a notice of appeal begins to run from the date of the

court’s mailing.

B. Statutes of Limitation

1. Tort Actions

¶ 13 Section 13-80-102(1)(a), C.R.S. 2025, provides that a plaintiff

must bring a civil action for a tortious act — like negligence or

interference with the formation of a contract — within two years

after the cause of action accrues. See Harris Grp., Inc. v. Robinson,

209 P.3d 1188, 1195 (Colo. App. 2009) (noting that interference

with a prospective contractual relationship is an intentional tort). A

cause of action for an injury to a person or property “accrue[s] on

the date both the injury and its cause are known or should have

been known by the exercise of reasonable diligence.”

§ 13-80-108(1), C.R.S. 2025.

5 2. Breach of Contract

¶ 14 To bring a civil action for a breach of contract, a plaintiff must

file a complaint within three years after the cause of action accrues.

§ 13-80-101(1)(a), C.R.S. 2025. A cause of action for a breach of

contract “accrue[s] on the date the breach is discovered or should

have been discovered by the exercise of reasonable diligence.”

§ 13-80-108(6).

3. Unfair Housing Practices

¶ 15 Section 24-34-502(1)(a)(I), C.R.S. 2025, prohibits unfair

housing practices that, as relevant here, make housing unavailable

to an individual because of their religion. A complaint alleging a

violation of section 24-34-502 must “be filed with the [Colorado

Civil Rights] [C]ommission . . . within one year after the alleged

unfair housing practice occurred, or it shall be barred.”

§ 24-34-504(1), C.R.S. 2025.

4. Wrongful Termination

¶ 16 Coloradans have the right to access fair employment that is

free from religious discrimination. §§ 24-34-300.7(1), -402(1)(a)(I),

C.R.S. 2025. If an employee believes they have been wrongfully

terminated from their employment because of religious

6 discrimination, then they may seek relief by filing a charge against

their employer with the Colorado Civil Rights Division.

§§ 24-34-301(8), -306(1)(a)(I), C.R.S. 2025. A charge isn’t timely —

and is therefore barred — if the employee fails to file the charge

within 300 days after the alleged discriminatory practice occurred.

§ 24-34-403, C.R.S. 2025.

C. Statute of Repose for Claims Against an Engineer

¶ 17 “Section 13-80-104[, C.R.S. 2025,] is both a statute of

limitations and a statute of repose.” Two Denv. Highlands Ltd. Liab.

Ltd. P’ship v. Stanley Structures, Inc., 12 P.3d 819, 821 (Colo. App.

2000). The difference between a statute of limitations and a statute

of repose is that “[a] statute of limitations takes effect when a claim

arises, while a statute of repose bars the bringing of a suit after a

set period of time, regardless whether an injury has occurred or a

claim has arisen.” Id.

¶ 18 Subject to an exception not applicable here, section

13-80-104(1)(a) requires an action against an engineer who

furnished a design for an improvement to real property to be

brought no more than six years after the substantial completion of

the improvement.

7 III. Standard of Review

¶ 19 We review de novo a court’s ruling on a C.R.C.P. 12(b)(5)

motion to dismiss. Norton v. Rocky Mountain Planned Parenthood,

Inc., 2018 CO 3, ¶ 7. In doing so, we apply the same standards as

the district court, meaning that we “accept all factual allegations in

the complaint as true, viewing them in the light most favorable to

the plaintiff.” Id. However, we aren’t required to accept bare legal

conclusions as true. Id.

¶ 20 A plaintiff must allege a plausible claim for relief to survive a

Rule 12(b)(5) motion to dismiss. Scott v. Scott, 2018 COA 25, ¶ 19;

see also Warne v. Hall, 2016 CO 50, ¶ 24 (adopting plausibility

standard in Colorado). Whether a complaint states a plausible

claim for relief is context dependent and “requires the reviewing

court to draw on its judicial experience and common sense.”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A claim is plausible

when its factual allegations raise a right to relief above the

speculative level, allowing us to draw reasonable inferences that the

defendant is liable for the misconduct alleged. Woodall v. Godfrey,

2024 COA 42, ¶ 7. If the factual allegations in the complaint

cannot, as a matter of law, support the claim for relief, then we will

8 uphold the district court’s grant of the Rule 12(b)(5) motion.

Norton, ¶ 7; Bewley v. Semler, 2018 CO 79, ¶ 14.

IV. Analysis

A. We Have Jurisdiction Over This Appeal

¶ 21 As a threshold matter, Frazar argues that we don’t have

jurisdiction to consider Conte’s appeal because it is untimely. We

disagree.

¶ 22 We take judicial notice of the court file in Boulder County Case

No. 23CV101. See Harriman v. Cabela’s Inc., 2016 COA 43, ¶ 64

(noting that appellate courts “can ‘take judicial notice of the

contents of court records in a related proceeding’” (quoting People v.

Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004))). The service history for

the court’s orders shows that the court didn’t send Conte the order

of dismissal or its order on his untimely opposition to the motion.

Rather, the only order Conte appears to have received from the

court indicating that his complaint had been dismissed was the

court’s August 5, 2024, order that it issued related to Conte’s

request for a hearing.

¶ 23 Because our review of the district court file demonstrates that

Conte didn’t receive notice of the dismissal of his complaint until

9 August 5, 2024, his notice of appeal filed on September 5, 2024, is

timely. See C.A.R. 4(a)(5).

B. Conte’s Claims Are Time Barred

¶ 24 Conte is self-represented. While courts should broadly

construe a self-represented party’s pleadings “to ensure that they

are not denied review of important issues because of their inability

to articulate their argument like a lawyer,” Jones v. Williams, 2019

CO 61, ¶ 5, we may neither rewrite a pro se litigant’s pleadings nor

act as an advocate for a pro se litigant, People v. Cali, 2020 CO 20,

¶ 34. And Conte is responsible for following the same procedural

rules and other applicable law as parties represented by an

attorney. Adams Cnty. Hous. Auth. v. Panzlau, 2022 COA 148, ¶ 8.

¶ 25 Conte appears to assert that his causes of action didn’t accrue

until the day he filed his complaint in September 2023 because

Frazar engaged in fraudulent concealment, which prevented Conte

from discovering his damages. Thus, he asserts that we should

equitably toll the statutes of limitation and the statute of repose.

He also asserts that “extraordinary circumstances beyond his

control” prevented him from filing his complaint.

10 ¶ 26 Equitable tolling “permits courts to toll a statute of limitations

in limited circumstances based on a defendant’s intentionally

wrongful conduct.” City & County of Denver v. Bd. of Cnty.

Comm’rs, 2024 CO 5, ¶ 70. However, Conte never argued to the

district court that fraudulent concealment or other extraordinary

circumstances beyond his control prevented him from filing his

complaint until 2023. The court therefore didn’t have an

opportunity to rule on those arguments. Because Conte raises

these arguments for the first time on appeal, they aren’t preserved

and we decline to consider them. Id.

1. Allegations Related to the Construction of Conte’s Home

¶ 27 All of the factual circumstances underlying Conte’s allegations

about Frazar’s structural design plan and the construction of

Conte’s home occurred between 1991 and 1992. Accepting Conte’s

allegations as true, June 1992 was the latest he was aware that his

home failed inspection due to structural defects and that he lost the

financing for construction of the home. Therefore, any cause of

action he had against Frazar arising from the construction of the

home began accruing in June 1992. See § 13-80-108(1), (6)

(accrual dates for tortious actions and breach of contract).

11 ¶ 28 Conte’s deadline to assert each of his alleged claims against

Frazar expired as follows:

(1) Claims for tortious actions — including negligence and

interference with the formation of a contract — expired

by the end of June 1994, which is two years after the

cause of action accrued, see § 13-80-102(1)(a).

(2) Breach of contract claims expired by the end of June

1995, which is three years after the cause of action

accrued, see § 13-80-101(1)(a).

(3) Claims for unfair housing practices expired by the end of

June 1993, which is one year after the alleged unfair

housing practice occurred, see § 24-34-504(1).

(4) Claims for defective structural design expired by the end

of June 1998, which is six years after the substantial

completion of Conte’s home, see § 13-80-104(1)(a).

Thus, those claims are barred by the statutes of limitation and

statute of repose.

¶ 29 Conte also appears to assert that Frazar’s actions in concert

with others amounted to a seditious conspiracy under 18 U.S.C.

§ 2384. But a plaintiff in a civil case can’t bring a claim against a

12 defendant based on the criminal code unless authorized by statute.

See Hurtado v. Brady, 165 P.3d 871, 876 (Colo. App. 2007) (noting

that “[a] plaintiff may not recover damages for an alleged violation of

a criminal statute” unless the criminal statute creates a civil

remedy). Section 2384 prohibits two or more people from

conspiring to overthrow the federal government, it doesn’t authorize

a civil remedy, and it has no comparable Colorado counterpart that

authorizes a civil remedy. Thus, the court didn’t err by dismissing

any claims Conte purports arose out of Frazar’s alleged violation of

18 U.S.C. § 2384.

¶ 30 We likewise conclude that there is no civil remedy for Conte’s

assertions that Frazar’s actions amounted to attempted homicide,

reckless endangerment, criminal mischief, extortion, or other

asserted violations of Colorado’s criminal code. See Hurtado, 165

P.3d at 876. The court therefore didn’t err by dismissing any claims

Conte argues are based on Frazar’s alleged violations of Colorado’s

criminal code.

¶ 31 To the extent that a claim for civil conspiracy is discernible

from Conte’s allegations, we conclude any such claim is time barred

because “civil conspiracy claims share a statute of limitations with

13 the underlying tort” and begin accruing on the same date as the

underlying tort. Sterenbuch v. Goss, 266 P.3d 428, 436 (Colo. App.

2011) (citation modified).

2. Allegations of Discriminatory Termination from Employment and Constitutional Violations

¶ 32 Conte says he was terminated from his employment at a state

agency and that the termination process was “settled” as of August

6, 2010. Although he alludes to the fact that there was a

determination that his termination was related to his own

misconduct, he alleges that Frazar discriminated against him based

on his religious affiliation. We conclude that any claims related to

his employment termination are time barred.

¶ 33 Conte had to bring any claim for wrongful termination based

on religious discrimination within 300 days after the alleged

discriminatory action occurred. See § 24-34-403. Because Conte

alleges the discrimination occurred during his employment, which

ended on August 6, 2010, he was required to file a charge with the

Colorado Civil Rights Division before June 2, 2011. See id.

Likewise, to the extent that Conte alleges that Frazar’s

discriminatory actions violated fair housing practices, Conte was

14 required to file a charge related to those actions no later than

August 6, 2011. See § 24-34-504(1). Thus, Conte’s claims arising

from his employment termination based on alleged religious

discrimination are over a decade late and thus time barred.

¶ 34 Conte also alleges that a memo he received in June 1992

during the course of his employment documented “constitutional

violations concerning [him] and family members.” His argument is

conclusory and underdeveloped. Because Conte failed to develop or

support this assertion, we decline to further address it. See Barnett

v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010)

(declining to consider a bald legal assertion presented without

argument or development).

V. Disposition

¶ 35 The judgment is affirmed.

JUDGE TOW and JUDGE LUM concur.