EBH v. O'Hanlon

• Court: Colorado Court of Appeals
• Decided: April 17, 2025
• Docket: 24CA0792
• Status: Unpublished

Opinion

24CA0792 EBH v O’Hanlon 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0792 City and County of Denver District Court No. 11CV1731 Honorable Jon J. Olafson, Judge

E B H, LLC,

Plaintiff-Appellee,

v.

Kenneth O’Hanlon,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE SULLIVAN Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 17, 2025

Law Office of Michael Fossenier, LLC, Michael P. Fossenier, Greenwood Village, Colorado, for Plaintiff-Appellee

Kenneth O’Hanlon, Pro Se ¶1 Defendant, Kenneth O’Hanlon, appeals the district court’s

order denying his C.R.C.P. 60(b) motion in which he sought to

reopen a 2011 case that plaintiff, E B H, LLC (EBH), voluntarily

dismissed in 2012 with O’Hanlon’s consent. We affirm and remand

the case with directions.

I. Background

¶2 This appeal is yet another chapter in the long-running dispute

between O’Hanlon, EBH, EBH’s members, and other litigants.

Boiled down, O’Hanlon alleged that EBH and others unlawfully

removed him as a member of AccessU2 Mobile Solutions, LLC

(AccessU2), an entity in which EBH was also a member. He also

asserted that EBH and others wrongfully deprived him of the fair

market value of certain patented technology that he developed.

This controversy has triggered a slew of litigation. See, e.g., E B H,

LLC, v. O’Hanlon, (Colo. App. No. 16CA0828, Aug. 17, 2017) (not

published pursuant to C.A.R. 35(e)) (O’Hanlon I); O’Hanlon v.

Hutchinson, (Colo. App. No. 20CA1049, June 16, 2022) (not

published pursuant to C.A.R. 35(e)) (O’Hanlon II); O’Hanlon v.

AccessU2 Mobile Sols. LLC, (Colo. App. No. 21CA1997, Feb. 16,

2023) (not published pursuant to C.A.R. 35(e)) (O’Hanlon III); see

1 also O’Hanlon v. AccessU2 Mobile Sols., LLC, Civ. A. No. 18-CV-

00185-RBJ-NYW, 2019 WL 1081079 (D. Colo. Jan. 22, 2019)

(unpublished order).1 O’Hanlon hasn’t prevailed in any of these

cases.

¶3 This case involves a narrow subset of the larger dispute

between O’Hanlon and EBH. In 2011, EBH filed suit against

O’Hanlon, alleging that O’Hanlon made fraudulent

misrepresentations that induced EBH into providing him $15,000

to promote AccessU2. According to EBH, O’Hanlon then

misappropriated the funds for the benefit of his own company,

Mobile Boomerang, LLC. The parties stipulated to staying the case

pending arbitration. In 2012, EBH filed an unopposed motion to

voluntarily dismiss the case without prejudice, which the district

court granted.

¶4 Fast forward eleven years to 2023. Representing himself,

O’Hanlon moved to reopen the case under Rule 60(b). Among other

things, he alleged that (1) EBH and others had committed fraud

upon the court by denying knowledge of Mobile Boomerang’s

1 This list of O’Hanlon’s cases is by no means exhaustive.

2 existence; and (2) E B H, LLC (with spaces) is a different entity than

EBH, LLC (without spaces). The district court denied O’Hanlon’s

motion as untimely. After O’Hanlon continued to file various

pleadings, the court sua sponte enjoined him from filing any

additional documents into the closed case. It found that his

conduct had become egregious and interfered with the court’s

operations.

¶5 O’Hanlon appeals. We interpret his pro se contentions as

follows: (1) EBH lacked standing to bring the 2011 case because it

used a “deceptive” name that wasn’t authorized by AccessU2; (2)

the court erred by denying his Rule 60(b) motion as untimely and,

instead, should have used its equitable powers to remedy EBH’s

fraud upon the court; and (3) the court abused its discretion by

enjoining him from filing additional documents into the case. We

reject these contentions, affirm the judgment, and conclude that

EBH is entitled to recover its appellate attorney fees.

II. C.A.R. 28

¶6 At the outset, EBH contends that we shouldn’t review

O’Hanlon’s contentions because his opening brief doesn’t comply

3 with C.A.R. 28. Specifically, EBH points out that O’Hanlon’s brief

lacks the following:

• appropriate citations to the record when discussing the

relevant facts, procedural history, and grounds for

reversal, contrary to C.A.R. 28(a)(5) and 28(a)(7)(B);

• a statement of the standard of review for his fraud upon

the court contention, contrary to C.A.R. 28(a)(7)(A); and

• an accurate certification that his brief doesn’t exceed

thirty pages, contrary to C.A.R. 28(g)(2) and C.A.R. 32(h).

¶7 We agree with EBH that O’Hanlon’s brief violates several

appellate rules. Nonetheless, we’re able to discern at least some of

the grounds upon which O’Hanlon challenges the district court’s

order. We will therefore address those specific contentions. See

Johnson v. McGrath, 2024 COA 5, ¶ 10 (explaining that we can’t

“rewrite a pro se litigant’s pleadings” or act as their advocate);

Middlemist v. BDO Seidman, LLP, 958 P.2d 486, 495 (Colo. App.

1997) (declining to address the propriety of the trial court’s order

where the plaintiff “fail[ed] to identify any specific errors committed

by the trial court”).

4 III. Standing

¶8 O’Hanlon first contends that EBH lacked standing to bring the

2011 case because it filed the lawsuit under a “deceptive” name —

EBH, LLC, rather than E B H, LLC (with spaces). As best we can

tell, O’Hanlon believes this defect precluded EBH from bringing suit

on AccessU2’s behalf. O’Hanlon asserted a permutation of this

same contention in O’Hanlon I, which the division rejected on

procedural grounds. O’Hanlon I, slip op. at 4. We, too, reject

O’Hanlon’s standing argument.

¶9 A plaintiff’s standing implicates the court’s subject matter

jurisdiction. Nonhuman Rights Project, Inc. v. Cheyenne Mountain

Zoological Soc’y, 2025 CO 3, ¶ 20. A plaintiff must have standing to

bring a legal action. Id. To have standing, a plaintiff must

establish that (1) they suffered an injury in fact, and (2) their injury

was to a legally protected interest. Hickenlooper v. Freedom from

Religion Found., Inc., 2014 CO 77, ¶ 8 (citing Wimberly v. Ettenberg,

570 P.2d 535, 539 (Colo. 1977)). We review issues of standing de

novo. Barber v. Ritter, 196 P.3d 238, 245 (Colo. 2008).

¶ 10 For two reasons, we disagree with O’Hanlon’s argument that

EBH lacked standing.

5 ¶ 11 First, contrary to O’Hanlon’s assertion, EBH brought its 2011

complaint under its correct name — E B H, LLC. While its

complaint at times referred to itself for simplicity as “EBH” (just as

we have in this opinion), its use of that defined moniker had no

impact on its standing.

¶ 12 Second, even if O’Hanlon’s standing argument had merit, we

decline to disturb the court’s order because O’Hanlon’s substantial

rights weren’t affected. See C.R.C.P. 61; C.A.R. 35(c). A dismissal

without prejudice effectively operates as a final judgment after the

statute of limitations period expires. See Spiremedia Inc. v.

Wozniak, 2020 COA 10, ¶ 14. A claim for fraudulent

misrepresentation — the sole claim EBH brought against O’Hanlon

in the 2011 case — is subject to a three-year statute of limitations.

§ 13-80-101(1)(c), C.R.S. 2024. It accrues on the date the

misrepresentation should have been discovered through the

exercise of reasonable diligence. § 13-80-108(3), C.R.S. 2024. EBH

filed its fraudulent misrepresentation claim in March 2011. Thus,

the statute of limitations on EBH’s claim expired, at the latest, in

March 2014. Given this, O’Hanlon has already obtained all the

relief that he could hope to achieve through reopening the 2011

6 case — dismissal of EBH’s fraudulent misrepresentation claim

without any possibility that EBH could reassert it later.

¶ 13 Accordingly, we reject O’Hanlon’s argument that EBH lacked

standing to bring the 2011 case.

IV. Fraud Upon the Court

¶ 14 O’Hanlon next contends that the district court erred by

denying his Rule 60(b) motion because his fraud upon the court

claim wasn’t subject to any time bar. We agree that no time bar

applied but perceive no basis to reverse.

A. Applicable Law and Standard of Review

¶ 15 Ordinarily, a Rule 60(b) motion must be made within a

“reasonable time.” C.R.C.P. 60(b). But a court can always set aside

a judgment that was procured through fraud upon the court. Id.;

Carbajal v. Wells Fargo Bank, N.A., 2020 COA 49, ¶ 17; see also

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 248

(1944) (Equitable relief from fraudulent judgments is a remedy

devised by courts to alleviate the hardships arising from “hard and

fast adherence” to the rule that judgments shouldn’t be disturbed

after the time for challenge has expired.), overruled on other grounds

by Standard Oil Co. of Ca. v. United States, 429 U.S. 17 (1976).

7 ¶ 16 Relief based on a fraud upon the court claim is available only

in unusual and exceptional circumstances to prevent a grave

miscarriage of justice. Carbajal, ¶ 19 To prevail, the party seeking

relief must show, among other things, fraud that is “extrinsic” to

the judgment being attacked. Se. Colo. Water Conservancy Dist. v.

Cache Creek Mining Tr., 854 P.2d 167, 176 (Colo. 1993). Extrinsic

fraud amounts to “a subversion of the legal process itself,” while

intrinsic fraud amounts to fraud that “could have been litigated in

the original action.” In re Marriage of Gance, 36 P.3d 114, 117

(Colo. App. 2001).

¶ 17 The movant under Rule 60(b) bears the burden of establishing

by clear and convincing evidence that their motion should be

granted. In re People in Interest of A.P., 2022 CO 24, ¶ 19. We

review the district court’s denial of a Rule 60(b) motion for an abuse

of discretion. Taylor v. HCA-HealthOne LLC, 2018 COA 29, ¶ 30.

B. Analysis

¶ 18 As a threshold matter, we agree with O’Hanlon that no time

bar precluded his fraud upon the court argument. See Carbajal,

¶ 17. Nonetheless, we discern no basis for reversing the district

court’s denial of O’Hanlon’s Rule 60(b) motion. See Taylor v. Taylor,

8 2016 COA 100, ¶ 31 (appellate court may affirm on any basis

supported by the record).

¶ 19 O’Hanlon’s claim of fraud upon the court revolves around the

alleged perjury of a witness who was a member of AccessU2.

According to O’Hanlon, the witness falsely testified and wrongfully

averred in a verified complaint in another case that he had no

knowledge of Mobile Boomerang. O’Hanlon asserts that the

witness’s knowledge of Mobile Boomerang is the fraud “at the core

of this case.” He also contends that AccessU2’s lawyers knew about

the alleged perjury.

¶ 20 But even accepting O’Hanlon accusations as true, perjury

constitutes mere intrinsic fraud, not extrinsic fraud. See Carbajal,

¶ 23. This is because the party alleging perjury has the opportunity

during the underlying litigation to probe the materiality of the

witness’s testimony and “attack it.” Hazel-Atlas Glass, 322 U.S. at

261 n.18. Thus, the district court didn’t err by denying O’Hanlon’s

Rule 60(b) motion that alleged fraud upon the court.

¶ 21 To the extent O’Hanlon relies on materials outside the record

to argue otherwise — such as invoices or attorney correspondence

— we decline to consider them. See McLellan v. Colo. Dep’t of Hum.

9 Servs., 2022 COA 7, ¶ 27 (“Because our review is limited to the

record on appeal, we will not consider documents attached to the

opening brief that are not found in the record.”).

¶ 22 Accordingly, although the district court erred by determining

that O’Hanlon’s Rule 60(b) motion was time barred, we nonetheless

discern no grounds for reversing its denial of his motion.

V. The District Court’s Injunction

¶ 23 O’Hanlon next dedicates one sentence in his opening brief to

challenging the district court’s order that enjoined him from filing

additional documents into the district court case. We decline to

review this undeveloped contention. See Antolovich v. Brown Grp.

Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007) (declining to review

appellants’ arguments under C.R.C.P. 59 and 60 because they

reflected a “shotgun approach” and set forth “little analysis”).

VI. Appellate Attorney Fees and Costs

¶ 24 Finally, we agree with EBH that it’s entitled to (1) its

reasonable appellate attorney fees under section 13-17-102(2),

C.R.S. 2024, and C.A.R. 38(b); and (2) its appellate costs under

C.A.R. 39(a)(2).

10 ¶ 25 Section 13-17-102(2) allows us to award reasonable attorney

fees to a party who has defended against an appeal that “lacked

substantial justification.” “[L]acked substantial justification” means

substantially frivolous, substantially groundless, or substantially

vexatious. § 13-17-102(9)(a). C.A.R. 38(b) similarly authorizes us

to award attorney fees as a sanction when a party brings a frivolous

appeal. An appeal can be frivolous in two ways: (1) it may be

frivolous as filed when the lower court’s judgment is so plainly

correct and the legal authority contrary to the appellant’s position

so clear that there is really no appealable issue, or (2) it may be

frivolous as argued when the appellant commits misconduct in

arguing the appeal. SG Ints. I, Ltd. v. Kolbenschlag, 2019 COA 115,

¶ 42.

¶ 26 We conclude that O’Hanlon’s appeal is frivolous in both ways.

As the divisions in O’Hanlon II and O’Hanlon III noted, O’Hanlon

continues to assert arguments that courts have repeatedly and

expressly rejected; he violates the appellate rules; and he presents

arguments in a conclusory fashion without developed factual or

legal argument. See O’Hanlon II, slip op. at 7; O’Hanlon III, slip op.

at 3-4. We also fail to see what purpose reopening the 2011 case

11 could serve other than to continually harass EBH with litigation.

Indeed, O’Hanlon consented to the case’s dismissal without

prejudice and the statute of limitations on EBH’s sole claim has

since expired. Even considering his pro se status, O’Hanlon clearly

knew or reasonably should have known that his appeal was

frivolous. See § 13-17-102(6); Averyt v. Wal-Mart Stores, Inc., 2013

COA 10, ¶ 43 (an appeal is frivolous as filed if the appellant can

present no rational argument based on the evidence or law, or the

appeal is prosecuted solely for harassment or delay). Thus, EBH is

entitled to its reasonable attorney fees incurred on appeal.

¶ 27 Because the district court is best positioned to determine the

amount of EBH’s reasonable appellate attorney fees, we remand the

case to the district court to determine the amount of those fees.

See C.A.R. 39.1.

¶ 28 As the prevailing party on appeal, EBH is also entitled to its

appellate costs upon compliance with C.A.R. 39(c)(2).

VII. Disposition

¶ 29 We affirm the judgment and remand the case to the district

court to determine the amount of EBH’s reasonable appellate

attorney fees.

12 JUDGE FREYRE and JUDGE SCHOCK concur.