                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   May 17, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    VONNE I. TORREZ,

                Plaintiff-Appellant

    v.                                                    No. 09-1464
                                             (D.C. No. 1:08-CV-02708-REB-KLM)
    CLIFFORD E. ELEY,                                      (D. Colo.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, BALDOCK, and TACHA, Circuit Judges.



         Vonne Torrez appeals from an order of the district court granting defendant

Clifford Eley’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

Because we agree with the district court’s conclusion that Ms. Torrez’s claims are

time barred, we exercise our jurisdiction under 28 U.S.C. § 1291 to affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   Background 1

      Ms. Torrez’s claims against Mr. Eley stem from advice that he gave her in

his capacity as a bankruptcy trustee in 1996 and 1997. The debtor in that

proceeding, Charles G. Dickinson, allegedly owed Ms. Torrez over $700,000. In

1997, Ms. Torrez filed an adversary proceeding under 11 U.S.C. § 523(c) seeking

to except this debt from discharge under § 523(a)(6). 2 Mr. Dickinson, however,

moved to dismiss the complaint as untimely under Fed. R. Bankr. P. 4007(c),

which required such complaints to be filed within sixty days of the first date set

for a specified meeting of creditors. The bankruptcy court ultimately dismissed

Ms. Torrez’s § 523(c) complaint on the merits, declining to reach the timeliness

issue. On appeal, however, we affirmed the dismissal based on Ms. Torrez’s

failure to file within the sixty-day time period. See Torrez v. Dickinson,

No. 99-1506, 2000 WL 1761065, at *2 (10th Cir. Nov. 29, 2000) (unpublished)

(rejecting plaintiff’s interpretation of Rule 4007(c) and holding her complaint was

untimely).




1
      This information is assembled from the factual allegations in Ms. Torrez’s
complaint, as well as from our own recitation of the facts in Torrez v. Dickinson,
No. 99-1506, 2000 WL 1761065, at *2 (10th Cir. Nov. 29, 2000) (unpublished),
an Order & Judgment that we issued in a related proceeding. See Tal v. Hogan,
453 F.3d 1244, 1265 n. 24 (10th Cir. 2006) (noting that court may take judicial
notice of its own files and records in the context of a Rule 12(b)(6) motion).
2
      Under § 523(a)(6), a debtor is denied discharge from liability arising out of
his willful and malicious injury to another or another’s property.

                                         -2-
      Three years later, in November 2003, Ms. Torrez filed the first of three

state actions against Mr. Eley and her former attorney, in which she blamed them

for losing her adversary proceeding in the bankruptcy case. Specifically, she

accused Mr. Eley of giving her incorrect information concerning the deadline for

filing her § 523(c) complaint. She sought damages against him based on theories

of breach of fiduciary duty, fraud, and deceit. The state court dismissed the first

action, concluding that Ms. Torrez’s claims against both Mr. Eley and her

attorney were barred by the statute of limitations. 3 In December 2004, the

Colorado Court of Appeals affirmed that dismissal, but on separate grounds. It

concluded there was no subject matter jurisdiction over the claims against

Mr. Eley based on the long-standing Barton 4 rule:

      [I]n the bankruptcy context, the general rule is that leave of the
      appointing forum must be obtained by any party wishing to institute
      an action in a non-appointing forum against a trustee, for acts done in
      the trustee’s official capacity and within the trustee’s authority as an
      officer of the court.

Torrez v. Edwards, 107 P.3d 1110, 1112 (Colo. App. 2004) (internal quotation

marks omitted). Because Ms. Torrez did not have the bankruptcy court’s

permission to bring claims against Mr. Eley in state court, the appeals court

3
      The parties dispute whether Ms. Torrez’s claims are governed by the
two-year statute of limitations applicable to most Colorado tort claims, C.R.S.
§ 13-80-102, or by the three-year limitations period applicable to claims for fraud
and deceit, id. § 13-80-101. We need not resolve that issue, however, as we
conclude her claims are barred under either provision.
4
      Barton v. Barbour, 104 U.S. 126 (1881).

                                         -3-
concluded that the trial court had erred in adjudicating those claims. Rather than

vacate the trial court’s decision, however, the appeals court exercised its

discretion to affirm the order of dismissal as to Mr. Eley on an alternate ground,

namely lack of subject matter jurisdiction. See id. at 1113. Ms. Torrez’s two

subsequent actions against Mr. Eley were dismissed on jurisdictional grounds.

      In December 2008, Ms. Torrez filed this action in federal district court,

asserting substantially the same claims against Mr. Eley and seeking damages in

excess of $700,000. 5 The district court dismissed the action under Rule 12(b)(6),

however, concluding Ms. Torrez’s claims were barred by the statute of

limitations. In so holding, the court rejected Ms. Torrez’s argument that

Colorado’s remedial revival statute, C.R.S. § 13-80-111, applied to her claims.

That provision allows for the refiling of a timely filed action that was dismissed

for improper venue or lack of jurisdiction. But the district court concluded that

Ms. Torrez’s “first state court action was not dismissed for lack of jurisdiction or

improper venue, but rather on statute of limitations grounds. Thus, Colo. Rev.

Stat. § 13-80-111 [was] inapplicable.” R. at 104 (magistrate judge’s report and

recommendation); see id. at 127 (district court order adopting same).




5
      Ms. Torrez alleges: “Eley’s conduct in failing to properly and adequately
advise the Plaintiff, creditor, was a breach of his duty to Torrez to exercise
reasonable care, skill and diligence on her behalf. In fact, the representation was
fraudulent and showed deceit by Trustee Eley.” R. at 6.

                                         -4-
      Ms. Torrez challenges this ruling on appeal, contending that the Colorado

Court of Appeals’ decision in her first state action established that it was, in fact,

dismissed on jurisdictional grounds. Thus, she argues, the remedial revival

statute applies to that and every subsequent dismissal so as to save her claims

from the limitations time bar.

                                      Discussion

      Although a statute of limitations bar is an affirmative defense, it may be

resolved on a Rule 12(b)(6) motion to dismiss “when the dates given in the

complaint make clear that the right sued upon has been extinguished.” Aldrich v.

McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). On de novo

review, Russell v. United States, 551 F.3d 1174, 1178 (10th Cir. 2008), we

conclude it is clear from Ms. Torrez’s complaint and from the public record that

her claims have expired.

      The act Ms. Torrez complains of occurred in 1997, when Mr. Eley

allegedly gave her bad advice regarding the deadline for filing her adversary

proceeding against Mr. Dickinson. Ms. Torrez admits this is beyond any

applicable limitations period, but she insists her claims are saved by C.R.S.

§ 13-80-111, because, properly construed, the dismissal of her first state lawsuit

was on jurisdictional grounds and not on statute of limitations grounds. We have

no qualms with this latter assertion. That is, we agree that the Colorado Court of

Appeals determined the trial court lacked jurisdiction and affirmed the dismissal

                                          -5-
of the claims against Mr. Eley on that basis. See Torrez v. Edwards, 107 P.3d at

1113. The problem for Ms. Torrez is that the remedial revival statute applies only

when the earlier complaint was timely filed. Broker House Int’l, Ltd. v.

Bendelow, 952 P.2d 860, 864 (Colo. App. 1998). Her original complaint plainly

was not.

      As the district court noted, she did not file her first lawsuit until November

2003, six years after the events cited in the complaint. Ms. Torrez claims that she

could not have discovered Mr. Eley’s bad advice until November 2000, when this

court concluded she had failed to timely file her § 523(c) complaint in the

adversary proceeding. But this claim is belied by her own conduct in that

proceeding. The record shows that Ms. Torrez fought Mr. Dickinson’s efforts to

have her complaint dismissed as untimely. Indeed, in our earlier Order &

Judgment, we referenced her response to the motion to dismiss, noting that the

parties continued to argue over the timeliness of Ms. Torrez’s complaint

throughout the appeal process. Torrez v. Dickinson, 2000 WL 1761065, at *2.

Having briefed this issue in 1997, it is clear Ms. Torrez was on notice well before

November 2000 that Mr. Eley may have given her bad advice as to when her

§ 523(c) complaint was due. See Broker House, 952 P.2d at 863-64 (holding, in

attorney malpractice action, that “it was not necessary for plaintiff to await the

outcome of the underlying appeal before being charged with knowledge of

defendants’ negligence”). We thus agree with the district court that any

                                          -6-
applicable statute of limitations had expired by the time Ms. Torrez filed her first

lawsuit in 2003, thus rendering C.R.S. § 13-80-111 inapplicable.

      We also conclude the district court committed no procedural irregularities

in referring Mr. Eley’s motion to a magistrate judge for recommendation and in

disposing of it under Rule 12. Its judgment is therefore AFFIRMED.


                                               Entered for the Court



                                               Deanell R. Tacha
                                               Circuit Judge




                                         -7-
