The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 25, 2024
2024COA10
No. 23CA0004, Stone Group Holdings v Ellison — Remedies —
Damages — Interest on Damages — Prejudgment Interest;
Appeals — Final Appealable Order
Answering a question left unresolved in Grand County Custom
Homebuilding, LLC v. Bell, 148 P.3d 398 (Colo. App. 2006), a
division of the court of appeals holds that an order granting
prejudgment interest is reduced to a sum certain and is therefore
final and appealable when the amount is calculable on the face of
the order. Prejudgment interest is facially calculable when the
order states (1) the amount of the judgment; (2) the prejudgment
interest rate; and (3) the date when the interest began accruing.
COLORADO COURT OF APPEALS 2024COA10
Court of Appeals No. 23CA0004
Boulder County District Court No. 21CV30567
Honorable Dea M. Lindsey, Judge
Stone Group Holdings LLC, a Colorado limited liability company,
Plaintiff-Appellee,
v.
Todd Ellison and MC2 Boulder LLC, d/b/a Marquis Cannabis, a Colorado
limited liability company,
Defendants-Appellants
and
D.J. Marcus
Attorney-Appellant.
APPEAL DISMISSED
Division IV
Opinion by JUDGE GROVE
Navarro and Lum, JJ., concur
Announced January 25, 2024
Gard Law Firm, L.L.C., Jeffrey S. Gard, Austin Q. Hiatt, Boulder, Colorado, for
Plaintiff-Appellee
Ogborn Mihm, LLP, D.J. Marcus, Denver, Colorado, for Defendants-Appellants
and Attorney-Appellant
¶1 In this dispute over a failed investment in a marijuana
business, defendants, Todd Ellison and MC2 Boulder LLC, d/b/a
Marquis Cannabis (MC2), and their attorney, D.J. Marcus, appeal
three separate district court orders that (1) granted summary
judgment to plaintiff, Stone Group Holdings LLC, on its breach of
contract claim; (2) awarded attorney fees based on fee-shifting
language in that contract; and (3) sanctioned Ellison, MC2, and
Marcus for failing to disclose certain information during discovery.
We conclude that the notice of appeal was untimely and therefore
dismiss the appeal for lack of jurisdiction.
I. Background
¶2 MC2 was a licensed marijuana business whose principals,
Ellison and Ryan Quinn, agreed to sell two-thirds of their company
to Stone Group. Under the terms of the parties’ contract, which
was executed on April 24, 2020, Ellison and Quinn were to apply
for a change of ownership once they received Stone Group’s
payment of $175,000. Stone Group wired that amount four days
after the parties signed the contract, but no transfer of ownership
ever occurred.
1
¶3 Six months later, Stone Group filed a complaint alleging
breach of contract against Ellison and Quinn and unjust
enrichment against all three defendants. Quinn never responded to
the complaint, and the district court entered a default judgment
against him. Stone Group then moved for summary judgment
against Ellison and MC2 on its unjust enrichment claim. They did
not respond to the motion, so on April 11, 2022, the district court
granted it and ordered Ellison and MC2 to pay Stone Group
“$175,000 plus statutory interest, with interest commencing on
April 24, 2020.”
¶4 Shortly thereafter, Stone Group filed a second motion for
partial summary judgment, this time on the breach of contract
claim. The motion sought to compel all three defendants to follow
through on the contractual term that required them to transfer two-
thirds of the company to Stone Group.
¶5 While this motion was pending, Stone Group learned that,
several months earlier, MC2 had missed the deadline for renewal of
its marijuana license, rendering the company valueless once its
prior license expired. Stone Group sought sanctions against
2
Ellison, MC2, and its attorney (Marcus) for failing to disclose this
development in discovery.
¶6 On May 18, 2022, the district court granted the motion for
partial summary judgment but declined to award specific
performance or other contractual damages because it found that
“rescission of the [c]ontract essentially occurred” when, in the first
partial summary judgment order, it ordered the return of the
$175,000 that Stone Group had paid. However, relying on the
contract’s fee-shifting provision, the court awarded Stone Group its
attorney fees stemming from the litigation of the contract claim and
instructed Stone Group to submit an affidavit in support of its fee
request within fourteen days.
¶7 On May 26, 2022, the court granted Stone Group’s motion for
discovery sanctions and awarded it attorney fees from the time that
the defendants knew the late licensure application had been denied
to the date of the order — a period of approximately four months.
The court again instructed Stone Group to submit an affidavit
reflecting its attorney fees incurred during that period and, on June
8, 2022, clarified that the sanctions were imposed jointly and
severally against Ellison, MC2, and Marcus.
3
¶8 Also on June 8, 2022, the parties filed a stipulated motion for
dismissal of the defendants’ counterclaims and requested that the
trial be vacated. The district court granted the motion the same
day.
¶9 In an order issued on June 21, 2022, the court “award[ed]
attorney fees in favor of [p]laintiff and against [Ellison and MC2] in
the amount of $16,000.00 related to the prosecution of the breach
of contract claim.” The order made no reference to prejudgment or
postjudgment interest.
¶ 10 Litigation over the attorney fee award and the proper amount
of sanctions continued. After a hearing, the court ordered the
following on October 11, 2022:
“[Ellison, MC2, and Marcus] shall pay Plaintiff $16,000 in
damages related to Plaintiff’s litigation of their breach of
contract claim.” Importantly, the court’s June 21 order
applying the fee-shifting provision of the contract had
only awarded fees against Ellison and MC2. We are
unable to discern from the record why the October 11
order added the defendants’ counsel to the fee award
arising from the breach of contract claim.
4
“[Ellison, MC2, and Marcus] shall pay Plaintiff $6,000 in
damages [as a discovery sanction] related to [the]
violation of C.R.C.P. Rules 11 and 26.”
“The Court reiterates its finding in its June 8, 2022 order
that sanctions are imposed jointly and severally against
[Ellison, MC2,] and their counsel.”
¶ 11 Shortly thereafter, Stone Group filed a motion requesting that
“final judgment be entered in the present matter.” (In its reply brief,
Stone Group explained that it filed the motion “so that plaintiff
could begin the collections process.”) Stone Group requested the
entry of judgment in the following amounts:
$215,033.65 owed jointly and severally by Ellison and
MC2 on the unjust enrichment claim, which appears to
be comprised of the $175,000 judgment and accrued
interest, plus a previous discovery sanction of $2,629.65
and accompanying interest on that amount;
$16,441.86 owed jointly and severally by Ellison, MC2,
and Marcus on the attorney fee award under the
contract, comprised of the $16,000 judgment plus
accrued interest; and
5
$6,000 owed jointly and severally by Ellison, MC2, and
Marcus for discovery sanctions.
¶ 12 On November 15, 2022, the court granted Stone Group’s
motion by signing the proposed order that had been submitted
together with the motion.
¶ 13 Ellison, MC2, and Marcus filed their notice of appeal on
January 3, 2023 — forty-nine days after the order issued on
November 15, 2022.
II. Timeliness
¶ 14 Although Ellison, MC2, and Marcus seek appellate review of
three different and separately appealable judgments — the merits
ruling on Stone Group’s breach of contract claim, the attorney fee
award arising from the contract’s fee-shifting provision, and the
$6,000 discovery sanction — they filed only a single notice of appeal
forty-nine days after the district court ostensibly entered “final
judgment” on those claims. As we explain below, however, the
court’s order entering “final judgment” was superfluous because
each of these issues had already been fully and finally resolved
weeks or months earlier.
6
A. Standard of Review and Principles of Law
¶ 15 Before reaching the merits of an appeal, we must first
determine whether we have jurisdiction. Atherton v. Brohl, 2015
COA 59, ¶¶ 7-8. Considering the question de novo, McDonald v.
Zions First Nat’l Bank, N.A., 2015 COA 29, ¶ 33, we conclude that
we do not have jurisdiction over any aspect of this appeal because it
was not timely filed.
¶ 16 Appellate jurisdiction is limited by several rules, two of which
are relevant to our analysis. First, a final judgment or order is a
prerequisite to appellate review. § 13-4-102(1), C.R.S. 2023; C.A.R.
1(a)(1); L.H.M. Corp., TCD v. Martinez, 2021 CO 78, ¶ 14. Second,
the notice of appeal must be timely; here, the applicable rule
required filing “within 49 days after entry of the judgment, decree,
or order being appealed.” C.A.R. 4(a)(1).1
1 This deadline can be extended by a timely filed C.R.C.P. 59
motion. See Amada Fam. Ltd. P’ship v. Pomeroy, 2021 COA 73,
¶ 73. In addition, C.A.R. 4(a)(4) provides, “Upon a showing of
excusable neglect, the appellate court may extend the time to file
the notice of appeal for a period not to exceed 35 days after the time
prescribed by [C.A.R. 4(a)].” The defendants do not assert
excusable neglect but instead argue only that their notice of appeal
was timely.
7
¶ 17 Our jurisdiction over this appeal hinges on when the three
orders at issue — the order on the second partial summary
judgment motion, the order awarding fees under the fee-shifting
provision in the contract, and the sanctions award — became final.
“‘[A]s a general rule, a judgment is final and therefore appealable if
it disposes of the entire litigation on its merits, leaving nothing for
the court to do but execute the judgment.’” L.H.M. Corp., ¶ 14
(citation omitted). But a final judgment need not necessarily be the
last order that a court enters. Indeed, courts frequently issue
postjudgment administrative or ministerial orders; so long as they
do not “affect[] rights or create[] liabilities not previously resolved by
the adjudication of the merits,” Luster v. Brinkman, 250 P.3d 664,
667 (Colo. App. 2010) (citation omitted), they do not affect finality of
the judgment. See, e.g., Bainbridge, Inc. v. Douglas Cnty. Sch. Dist.
RE-1, 973 P.2d 684, 686 (Colo. App. 1998) (holding that an order
adding mandatory postjudgment interest was unnecessary and did
not affect or alter the underlying judgment).
¶ 18 To be considered final, a judgment or order must address both
liability and damages, Chavez v. Chavez, 2020 COA 70, ¶ 28, and
damages must be reduced to a sum certain. See, e.g., Grand Cnty.
8
Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 400-01 (Colo. App.
2006). Prejudgment interest is a component of a damages award
and must also be “reduced to a sum certain” before an order is
considered final. Id. at 401.
B. Relevant Orders
¶ 19 We must consider six separate orders to determine whether
this appeal is timely:
the April 11, 2022, order granting partial summary
judgment to Stone Group on the unjust enrichment claim
and awarding it “$175,000 plus statutory interest, with
interest commencing on April 24, 2020”;
the May 18, 2022, order granting partial summary
judgment to Stone Group on the contract claim and
ruling that Stone Group was entitled to attorney fees
under the contract’s fee-shifting provision;
the June 8, 2022, order granting the stipulated motion
for dismissal of the defendants’ counterclaims and
vacating the trial;
9
the June 21, 2022, order awarding $16,000 in attorney
fees to Stone Group, to be paid by Ellison and MC2,
under the contract’s fee-shifting provision;
the October 11, 2022, order that
o reiterated that Stone Group was entitled to $16,000
in fees under the fee-shifting provision but ruled
that Ellison, MC2, and Marcus were jointly and
severally liable for that amount; and
o sanctioned Ellison, MC2, and Marcus, jointly and
severally, in the amount of $6,000 for discovery
violations; and
the November 15, 2022, order of final judgment that
calculated accrued interest on, and added that interest
to, the unjust enrichment and attorney fee awards, and
also reiterated the $6,000 discovery sanction.
C. Analysis
1. Merits Ruling
¶ 20 Ellison and MC2 contend that the district court incorrectly
granted summary judgment against them on the breach of contract
claim because Stone Group elected an unjust enrichment remedy
10
and, by prevailing on that equitable claim, made contractual
remedies unavailable. Because Ellison and MC2 did not file a
timely appeal, however, we lack jurisdiction to review the court’s
grant of summary judgment.
a. April 11 Partial Summary Judgment Order
¶ 21 We acknowledge that the April 11 partial summary judgment
order adjudicating the unjust enrichment claim is not discussed
extensively in the parties’ briefs. Nonetheless, we address it first
because it pertains to our jurisdiction. See People v. S.X.G., 2012
CO 5, ¶ 9.
¶ 22 Standing on its own, the April 11 order was not final because,
as a partial summary judgment order, it did not dispose of the
entire litigation on the merits. See L.H.M. Corp., ¶ 14. But given
the subsequent procedural history of this case, the order’s award of
prejudgment interest dating back to April 24, 2020, is nonetheless
central to our analysis.
¶ 23 In Bell, a division of this court considered whether
prejudgment interest is a component of damages. It concluded that
it is, and, turning to the impact of that holding on finality, the
division held that “a judgment awarding prejudgment interest is not
11
final until the amount of such interest is reduced to a sum certain.”
Bell, 148 P.3d at 401. The division then considered the meaning of
“sum certain,” observing that “some courts in other jurisdictions
have held that where a sum certain can be calculated from the face
of the judgment, it is final for purposes of appeal.” Id. The opinion
did not reach that question, however, because under the
circumstances of the case, “the amount of prejudgment interest
[was] not so easily calculable from the face of the . . . judgment.” Id.
at 402.
¶ 24 As best we can tell, every jurisdiction that has considered this
question has concluded that prejudgment interest is reduced to a
sum certain when the interest can be calculated from the face of the
order through purely ministerial or mechanical means. For
example, in Herzog Contracting Corp. v. McGowen Corp., 976 F.2d
1062, 1064 (7th Cir. 1992), the Seventh Circuit held that a
judgment was final because the parties knew the interest rate and
both the start and end date of interest accrual based on the
controlling contractual provision. In a similar case arising under
West Virginia law, the Fourth Circuit held that an order was final
and a party’s motion to clarify the amount of prejudgment interest
12
was not a motion to amend judgment because the amount of
prejudgment interest was of a “ministerial nature” and was “fixed at
the time of the entry of judgment” because the parties knew (1) that
interest had been awarded; (2) the statutory interest rate; and
(3) the timeframe for the computation. Kosnoski v. Howley, 33 F.3d
376, 379 (4th Cir. 1994). The Fifth and Eleventh Circuits have
endorsed similar approaches. See U.S. Sec. & Exch. Comm’n v.
Carrillo, 325 F.3d 1268, 1272 (11th Cir. 2003) (“[I]f the judgment
amount, the prejudgment interest rate, and the date from which
prejudgment interest accrues have been established . . . the court’s
failure to calculate the precise amount of prejudgment interest does
not prevent the court’s order from constituting a final
judgment . . . .”); Heck v. Triche, 775 F.3d 265, 277 (5th Cir. 2014)
(citing Carrillo with approval); cf. Halo Elecs., Inc. v. Pulse Elecs.,
Inc., 857 F.3d 1347, 1351 (Fed. Cir. 2017) (dismissing an appeal for
lack of finality because “[t]he district court never resolved the
parties’ dispute regarding the date from which to begin calculating
prejudgment interest or set the amount of prejudgment interest to
be awarded” to the prevailing party).
13
¶ 25 For three reasons, we agree with the approach taken in these
cases. First, it is implicit in the analysis of Luster, 250 P.3d at 666,
which concluded that once an order exists from which prejudgment
interest is facially calculable, any subsequent order stating the
lump sum owed does not affect the substantive rights of either
party and is thus ministerial. Instead, it is a matter of simple
arithmetic — rendering the act of announcing the lump sum a
ministerial act akin to that of announcing the lump sum of
mandatory postjudgment interest. See Bainbridge, 973 P.2d at 686.
Second, it promotes judicial economy by removing an unnecessary
step of judicial involvement. Third, it allows the prevailing party to
begin the collection process earlier.
¶ 26 Therefore, addressing the question that the Bell division left
unresolved, we hold that, if an order announces (1) the amount of
the judgment; (2) the interest rate; and (3) the date on which
accrual of prejudgment interest begins, then the amount of
prejudgment interest has been reduced to a sum certain as of the
date of the order. Applying that test here, we conclude that the
April 11 order reduced prejudgment interest on the unjust
enrichment claim to a sum certain because it stated (1) the amount
14
of the judgment; (2) the interest rate; and (3) the date on which
accrual began. Once final judgment was entered on June 8, the
amount was easily calculable.
¶ 27 It follows that the April 11 order would have been immediately
appealable had it resolved all of the issues in the case. It did not,
however, because it only granted partial summary judgment to
Stone Group. But importantly, because prejudgment interest could
be calculated from the face of the April 11 order, it did not prevent
the judgment from becoming final once the remaining issues were
resolved. Thus, as we explain next, once the district court granted
summary judgment on Stone Group’s breach of contract claim and
the counterclaims were dismissed, the judgment was final
notwithstanding the court’s subsequent October 11 and November
15 orders reiterating the award and declaring the exact amount of
prejudgment interest.
b. May 18 Partial Summary Judgment Order and Stipulated
Dismissal of Counterclaims
¶ 28 On May 18, 2022, the district court granted Stone Group’s
second motion for partial summary judgment. The court ruled that
Ellison and MC2 had breached the contract but declined to order
15
specific performance or grant money damages under the contract
because it found “that for the purposes of further damages,
rescission of the [c]ontract essentially occurred” when it granted
summary judgment on Stone Group’s unjust enrichment claim.
¶ 29 Although this order resolved the merits of Stone Group’s
claims, it was not final because it did not resolve the counterclaims
raised by Ellison and MC2. Once those counterclaims were
dismissed pursuant to the parties’ stipulation on June 8, 2022, the
merits judgment was final, and any appeal was due within forty-
nine days of that date. (The fact that the court had determined that
Stone Group was also entitled to attorney fees under the contract
had no impact on the finality of the merits ruling. See L.H.M. Corp.,
¶ 23 (“[A] judgment on the merits is final and appealable
notwithstanding an unresolved issue of attorney fees.”).) But
Ellison and MC2 did not file their appeal until January 3, 2023. It
is therefore untimely, and we do not have jurisdiction to review the
merits judgment.
2. Attorney Fees
¶ 30 In a related argument, Ellison, MC2, and Marcus contend that
the court erred by granting attorney fees pursuant to the fee-
16
shifting provision of the contract because the contract was
effectively rescinded by the court’s order granting Stone Group’s
claim for unjust enrichment. We conclude that the appeal of this
order was also untimely.
¶ 31 “[A]n award of attorney fees is distinct and separately
appealable from the judgment on the merits.” Kennedy v. Gillam
Dev. Corp., 80 P.3d 927, 929 (Colo. App. 2003). That remains true
whether a fee award is denominated as costs or damages. L.H.M.
Corp., ¶¶ 25-28.
¶ 32 In its May 18 order granting Stone Group’s second motion for
partial summary judgment, the court found that Stone Group was
entitled to attorney fees under the fee-shifting language in the
contract, and on June 21, 2022, the court reduced that order to a
sum certain by awarding $16,000 in attorney fees to Stone Group,
to be paid by Ellison and MC2. Then, in the October 11 order, the
court added Marcus to this $16,000 award, stating that he was
jointly and severally liable for that amount along with Ellison and
MC2.
¶ 33 Ellison, MC2, and Marcus contend that the court erred by
awarding attorney fees under the fee-shifting provision of the
17
contract because it had already effectively declared the contract
rescinded when it granted Stone Group’s motion for summary
judgment on its unjust enrichment claim. If it were timely, this
argument would have some force. See Kennedy, 80 P.3d at 930-31
(“Once [the plaintiffs] elected the remedy of rescission and it was
granted by the court, the option of obtaining the benefits of a
provision in the rescinded contract was no longer available to
them.”). But we do not have jurisdiction to review it because
Ellison and MC2 did not appeal it within forty-nine days of when it
became final on June 21, 2022. Instead, the notice of appeal was
filed on January 3, 2023.
¶ 34 Because the June 21 order reduced the attorney fee award to
a sum certain, the court’s subsequent orders restating that amount
and adding interest to it were superfluous and did not change the
date that it became final. See Bainbridge, 973 P.2d at 686 (“[A]
judgment creditor who falls within the coverage of a mandatory
post-judgment interest statute need not obtain an additional
judgment (or a modification of a previous judgment) specifying that
entitlement.”).
18
¶ 35 That said, we acknowledge that the October 11 order appears
to have sua sponte added Marcus as a judgment debtor on the
$16,000 attorney fee award. We have been unable to find any
explanation for this apparent amendment to the judgment in the
record, and we observe that, under C.R.C.P. 59(c)(4), the district
court had only fourteen days after June 21, 2022, to order an
amendment of its judgment on its own initiative. See Koch v. Dist.
Ct., 948 P.2d 4, 7-8 (Colo. 1997) (“C.R.C.P. 59(c) allows the court to
order a new trial sua sponte. However, the court must act within
the time allowed the parties because at the end of this period, the
district court no longer has jurisdiction to grant post-trial relief
under C.R.C.P. 59.”) (footnote omitted). Nonetheless, even if the
district court had lost jurisdiction to amend its judgment to add
Marcus to the fee award by the time it issued its October 11 order,
we cannot review that aspect of the court’s judgment on appeal
because Marcus did not appeal it within forty-nine days of that
date.
3. Sanctions Order
¶ 36 Finally, we consider the timeliness of the appeal of the
sanctions order.
19
¶ 37 The October 11 order announced sanctions in the amount of
$6,000. Because the order was reduced to a sum certain on that
date, the court’s November 15 order entering “final judgment” was
superfluous. Ellison, MC2, and Marcus filed their notice of appeal
more than forty-nine days later, on January 3, 2023. Their appeal
was therefore untimely, and we lack jurisdiction over it.
¶ 38 In summary, the merits ruling was final on June 8, 2022. The
attorney fee award was final as to Ellison and MC2 on June 21,
2022, and as to Marcus on October 11, 2022. And the sanctions
award was final on October 11, 2022. Each of these three orders
was separately appealable, and each appeal had to be filed within
forty-nine days of the date that the underlying order became final.
Because none of the appeals was filed before its respective deadline,
we lack jurisdiction to consider them on the merits and must
dismiss the appeal.
III. Appellate Attorney Fees
¶ 39 Stone Group requests an award of appellate attorney fees,
arguing that the appeal is frivolous because we lack jurisdiction or,
in the alternative, that the fee-shifting provision of the contract
20
requires the losing party to cover the prevailing party’s attorney fees
on appeal. We decline to award fees.
¶ 40 An appeal is frivolous as filed if “there are no legitimately
appealable issues because the judgment below ‘was so plainly
correct and the legal authority contrary to the appellant’s position
so clear.’” Calvert v. Mayberry, 2019 CO 23, ¶ 45 (citation omitted).
Likewise, an appeal is frivolous as argued if a party commits
misconduct in the course of arguing the appeal. Castillo v. Koppes-
Conway, 148 P.3d 289, 292 (Colo. App. 2006).
¶ 41 It appears that both parties misunderstood finality in this
case, as demonstrated by Stone Group’s unnecessary request for
the court to enter “final judgment” well after each of the appealed
orders had become final. Given this procedural history, we cannot
conclude that the late appeal was frivolous. Likewise, Stone Group
does not allege any misconduct during the appellate proceedings, so
the appeal is not frivolous as argued.
¶ 42 We also decline to award appellate attorney fees to Stone
Group based on the contract’s fee-shifting provision. See Kennedy,
80 P.3d at 930-31. Stone Group elected to pursue an unjust
enrichment claim, and after it prevailed on that claim, the district
21
court found that “for the purposes of further damages, rescission of
the [c]ontract essentially occurred.” Once the contract was
rescinded, Stone Group was no longer able to receive the benefit of
the fee-shifting provision. See id. Accordingly, we deny Stone
Group’s request for appellate attorney fees.
IV. Disposition
¶ 43 We dismiss the appeal and deny the request for appellate
attorney fees.
JUDGE NAVARRO and JUDGE LUM concur.
22