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March 26, 2026 Get Citation Alerts Download PDF Add Note

Sullivan v. Westphal

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA0612

• Precedential Status: Non-Precedential

• Opinion

• Authorities (13)

• Cited By (0)

• Summaries (0)

• Similar Cases (27.2K)

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Combined Opinion

25CA0612 Sullivan v Westphal 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0612
Garfield County District Court No. 24CV30137
Honorable John F. Neiley, Judge

Brittney Sullivan a/k/a Brittney Westphal,

Plaintiff-Appellant,

v.

Jim Westphal and Cheryl Westphal,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE GROVE
Yun and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 26, 2026

Defiance Law Firm, Peter A. Rachesky, Lara Horst, Glenwood Springs,
Colorado, for Plaintiff-Appellant

Garfield & Hecht, P.C., Eric D. Musselman, Christine L. Gazda, Glenwood
Springs, Colorado, for Defendants-Appellees
¶1 Plaintiff, Brittney Sullivan a/k/a Westphal (daughter), appeals

the district court’s order granting the motion to dismiss filed by

defendants, Jim and Cheryl Westphal (parents). We reverse and

remand the case for further proceedings.

I. Background

¶2 We draw the following factual summary from the allegations in

daughter’s complaint.

¶3 In 2016, parents opened a Home Depot credit card and

purchased home improvement materials for daughter. Two years

later, after daughter sold her condominium in Boulder, parents

claimed daughter owed them $20,250 for the 2016 home

improvement purchases. Daughter promptly wrote them a check

for that amount.

¶4 In 2019, daughter loaned parents $10,250 to purchase a car

(the car loan). Parents promised to repay her within two months

but failed to do so.

¶5 Around February 7, 2022, daughter asked parents to repay

the car loan. Parents refused, claiming that what they owed her

was offset by a debt daughter owed to them for unrelated expenses

they had incurred on her behalf (the unrelated expenses).

1
¶6 After daughter asked for details regarding the unrelated

expenses and provided documentation refuting her parents’ claim,

parents admitted that she did not owe them anything for the

unrelated expenses. They repaid the car loan by writing her a

check. However, at the time, parents told daughter that she still

owed them more than $12,000 in unspecified “owed charges.”

¶7 Daughter alleged in her complaint that, based on these

interactions, on or about February 7, 2022, she began to “question

the veracity” of parents’ claim that they had incurred $20,250 in

home improvement expenses on her behalf in 2016. She asked

parents to provide receipts detailing the home improvement

purchases, as well as the $12,000 in “owed charges,” but they

“refused.”

¶8 About a year later, on January 1, 2023, daughter “confronted

her parents about the $20,250 she had paid them in June 2016

from the proceeds of her condo sale.” Parents showed her a

budgeting notebook documenting only about $3,000 in home

improvement expenses, leading daughter to infer that she had been

overcharged by approximately $17,250.

2
¶9 Ten days after discovering this alleged overpayment, daughter

and her husband notified parents they were going to sue them for

the “stolen $20,250.”

¶ 10 In September 2024, daughter sued her parents for, as relevant

here, civil theft and unjust enrichment. Parents moved to dismiss

the complaint, asserting that it was barred by the statute of

limitations. The district court granted the motion.

¶ 11 Daughter now appeals, contending that the district court erred

by ruling that her civil theft and unjust enrichment claims were

time barred. For the reasons below, we agree with daughter and,

accordingly, reverse the judgment.

3
II. Statute of Limitations

¶ 12 Daughter contends that the district court erred when it

concluded that her civil theft and unjust enrichment claims were

time barred and dismissed her complaint.1 We agree.

A. Standard of Review

¶ 13 We review de novo a district court’s ruling on a motion to

dismiss. Patterson v. James, 2018 COA 173, ¶ 16. “We apply the

same standards as the [district] 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. “Dismissal under

C.R.C.P. 12(b)(5) is only proper where the factual allegations in the

complaint cannot, as a matter of law, support the claim for relief.”

Colo. Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 16.

1 The district court concluded that daughter’s civil theft and unjust

enrichment claims were both governed by the two-year statute of
limitations in section 13-80-102(1)(a), C.R.S. 2025. Because we
conclude that daughter filed her lawsuit less than two years after
the accrual date for all her claims, we need not address daughter’s
arguments that a different statute of limitations applied to her
equitable claim and that the district court erred by considering
parents’ affirmative defense as part of a motion to dismiss rather
than requiring parents to raise it in an answer to the complaint.
See Bristol Bay Prods., LLC v. Lampack, 2013 CO 60, ¶¶ 41-45.

4
B. Applicable Law

¶ 14 Generally, whether a claim is time barred by a statute of

limitations is a question of fact for the jury. Sterenbuch v. Goss,

266 P.3d 428, 432 (Colo. App. 2011). However, a party may assert

a statute of limitations defense in a motion to dismiss “when the

time alleged in the complaint shows that the action was not brought

within the statutory period.” Wasinger v. Reid, 705 P.2d 533, 534

(Colo. App. 1985). And a court may grant such a motion only when

“the material facts are undisputed and reasonable persons could

not disagree about their import.” Sterenbuch, 266 P.3d at 432

(emphasis added).

¶ 15 In determining the accrual date for the statute of limitations,

the focus is on when the plaintiff discovered, or should have

discovered through reasonable diligence, the facts essential to the

claim. Int’l Network, Inc. v. Woodard, 2017 COA 44, ¶ 10; Crosby v.

Am. Fam. Mut. Ins. Co., 251 P.3d 1279, 1285-87 (Colo. App. 2010).

This includes information that would lead a reasonable person to

inquire further. Int’l Network, Inc., ¶ 10. “[R]easonable diligence” is

determined objectively and does not reward denial or self-induced

5
ignorance. Murry v. Guidone Specialty Mut. Ins. Co., 194 P.3d 489,

492 (Colo. App. 2008) (citation omitted).

¶ 16 We look to section 13-80-108, C.R.S. 2025, to determine when

a cause of action accrues. Causes of action for injury to property or

possession — which include civil theft claims — “shall be

considered to accrue 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).

¶ 17 Claims for civil theft are subject to a two-year statute of

limitations. See Tisch v. Tisch, 2019 COA 41, ¶ 39; § 13-80-102(1),

C.R.S. 2025.

C. Analysis

¶ 18 Daughter asserted in her complaint that her claims accrued

“on or about” January 1, 2023, when she discovered her parents

had overcharged her by approximately $17,250 for home

improvement expenses they claimed to have incurred in 2016.

Because daughter filed her civil theft claim less than two years after

January 1, 2023, it is not time barred if she is correct about the

accrual date.

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¶ 19 Parents argued in their motion to dismiss that daughter’s

claim accrued “on or about September 28, 2018,” when daughter

wrote them a check for the 2016 home improvement debt. It was at

that point, they maintain, that daughter should have exercised

“reasonable diligence” to discover the actual amount owed. If

parents are correct about the accrual date, daughter’s civil theft

claim is time barred.

¶ 20 In its order dismissing the complaint, the district court did not

accept either party’s argument and instead determined that

daughter’s claim accrued on February 7, 2022. In reaching this

conclusion, the court appears to have inferred that several events

took place on that date.

• Daughter requested repayment of the car loan and

confronted parents about inaccuracies in their claim that

she owed them an equivalent amount for the unrelated

expenses.

• Parents told daughter that she was indebted to them for

an additional $12,000 in “owed fees.”

• Parents “refused to provide anything to [daughter] about

the 2016 [home improvement] purchases.”

7
¶ 21 Based on these events, as well as daughter’s allegation that

she “began to question the veracity” of the home improvement

expenses on or about February 7, 2022, the court concluded that

“[t]he facts as alleged in the [c]omplaint show that by February 7,

2022,” daughter was aware or reasonably should have been aware

of facts that would make a reasonable person suspicious of the

wrongdoing alleged in the complaint.

¶ 22 Reviewing the court’s reasoning de novo, we conclude that the

court failed to view the allegations in the complaint in the light most

favorable to daughter. See Hurtado v. Brady, 165 P.3d 871, 872-73

(Colo. App. 2007) (when reviewing a motion to dismiss, “the court

must take the allegations in the complaint as true and view them in

the light most favorable to the plaintiff,” and dismissal is

appropriate only if it is “beyond doubt that the plaintiff cannot

prove” facts entitling the plaintiff to relief (citation omitted)). The

court’s determination that daughter’s claims accrued on February

7, 2022, appears to rest on the assumption that the events

described above all occurred on that date. That is, the court

appears to have inferred that, on February 7, 2022, daughter

confronted parents and received, or did not receive, documentation

8
related to the unrelated expenses, the $12,000 in “owed charges,”

and the 2016 home improvement debt.

¶ 23 But the complaint’s timeline is not necessarily linear. One

plausible reading is that, as of February 7, 2022, daughter knew or

reasonably should have known that parents had misled her about

the size of the 2016 home improvement debt. But there is another

reasonable reading that emerges if the factual allegations in the

complaint are organized by the sequence of debt-related

interactions rather than chronologically. Through this lens, the

back-and-forth regarding the car loan could have occurred over

several weeks or months, culminating in a confrontation on

February 7 and subsequent revelations about the unrelated

expenses. After it became clear that daughter did not owe the

unrelated expenses, parents repaid the car loan but, “at that same

time,” newly claimed that daughter owed them $12,000 in “owed

fees.” Under this reading, daughter’s suspicions about the 2016

home improvement debt would be tied only to parents’ February 7

refusal to repay the car loan. This leaves the timing and

circumstances of daughter’s request for receipts to substantiate the

2016 home improvement debt unclear, and it also establishes that

9
the general suspicions that daughter alleged she began to develop

on February 7 were not necessarily concrete enough to give her

“reason to know” at that time that her parents had overcharged her

for the home improvement debt.

¶ 24 Further complicating the analysis is the nature of the parties’

relationship, which raises additional questions about when and

how daughter should have exercised “reasonable diligence” to act

on any of her suspicions regarding the home improvement debt.

The complaint alleged that, due to their family ties, daughter and

parents had a confidential relationship — one that arises “when one

party has justifiably reposed confidence in another.” Page v. Clark,

592 P.2d 792, 798 (Colo. 1979). Such a relationship may impel or

induce a person “to relax the care and vigilance” ordinarily

exercised in “dealing with a stranger.” Ralston Oil & Gas Co. v. July

Corp., 719 P.2d 334, 338 (Colo. App. 1985) (citation omitted). Facts

arising from confidential relationships “which would ordinarily

require investigation may not excite suspicion, and the same degree

of diligence is not required.” Lucas v. Abbott, 601 P.2d 1376, 1379

(Colo. 1979) (citation omitted). To the extent that a confidential

relationship existed, determining when daughter’s “duty of inquiry”

10
arose is a fact-intensive inquiry best suited for the jury. See id. at

1379-80.

¶ 25 In sum, the fact that the allegations in the complaint do not

necessarily establish that the three debt-and-discovery

confrontations all occurred on a single day, when considered

together with the nature of the parties’ relationship, casts doubt on

the district court’s “reasonable diligence” determination. When the

allegations are viewed in the light most favorable to daughter,

ambiguities in the timeline and the existence of a confidential

relationship suggest that daughter’s discovery of the allegedly

fraudulent debts may have occurred gradually — or perhaps not at

all by February 7, 2022. While it is certainly possible that her

discovery (or need to exercise reasonable diligence) arose on that

date, this remains a factual question rather than a legal one.

Accordingly, we conclude that the court erred by determining, as a

matter of law, that the accrual date was February 7, 2022, and

dismissing the complaint based on the expiration of the statute of

limitations.

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III. Disposition

¶ 26 We reverse the district court’s order dismissing the complaint

and remand the case for further proceedings consistent with this

opinion.

JUDGE YUN and JUDGE SCHOCK concur.

12