BKP v. Killmer

Opinion

20CA1299 BKP v Killmer 01-06-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1299

City and County of Denver District Court No. 19CV31940

Honorable Robert L. McGahey, Jr., Judge

BKP, Inc.; Ella Bliss Beauty Bar, L.L.C.; Ella Bliss Beauty Bar 2, L.L.C.; and

Ella Bliss Beauty Bar 3, L.L.C.,

Plaintiffs-Appellants,

v.

Killmer, Lane & Newman, LLP; Mari Newman; and Towards Justice,

Defendants-Appellees.

ORDER VACATED

Division V

Opinion by JUDGE DUNN

Welling and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 6, 2022

Sherman & Howard LLC, Raymond M. Deeny, Heather Fox Vickles, Brooke A.

Colaizzi, Denver, Colorado, for Plaintiffs-Appellants

Treece Alfrey Musat P.C., Michael Hutchinson, Denver, Colorado; Killmer, Lane

& Newman, LLP, Thomas Kelley, Denver, Colorado, for Defendants-Appellees

Killmer, Lane & Newman, and Mari Newman

The Law Office of Brian D. Gonzales, PLLC, Brian D. Gonzales, Fort Collins,

Colorado; Harter Secrest & Emery LLP, Brian M. Feldman, Rochester, New

York, for Defendant-Appellee Towards Justice

1

¶ 1 Plaintiffs, BKP, Inc.; Ella Bliss Beauty Bar, L.L.C.; Ella Bliss

Beauty Bar 2, L.L.C.; and Ella Bliss Beauty Bar 3, L.L.C.

(collectively, the employer), appeal the trial court’s order awarding

attorney fees to defendants Kilmer, Lane & Newman, LLP; Mari

Newman; and Towards Justice (collectively, the attorneys). Because

another division of this court has reversed the merits judgment on

which the fee award was based, we vacate the fee order.

¶ 2 In 2018, the attorneys filed a putative class action lawsuit

against the employer, asserting various wage and employment

claims. The same day they filed the lawsuit, the attorneys made

statements about it at a press conference and in a press release.

¶ 3 Nearly a year later, the employer sued the attorneys, alleging

that statements made at the press conference and in the press

release were defamatory and interfered with the employer’s

contractual relations.

¶ 4 The attorneys filed a motion to dismiss the employer’s claims

under C.R.C.P. 12(b)(5), arguing that the statements were protected

speech and not actionable. The trial court agreed and dismissed

the employer’s claims.

2

¶ 5 The attorneys then filed a motion for attorney fees under

section 13-17-201, C.R.S. 2021, which requires an attorney fee

award when a court dismisses a tort action under Rule 12(b). The

attorneys also filed an unopposed bill of costs. The trial court

granted the motion and awarded the attorneys “most of their

requested” fees and the unopposed costs.

¶ 6 The employer separately appealed the merits judgment and

the order awarding fees, but it didn’t appeal the cost award.

¶ 7 Another division of this court considered the employer’s appeal

of the order dismissing its claims. See BKP, Inc. v. Kilmer Lane &

Newman, LLP, 2021 COA 144 (BKP I). That division concluded that

not all of the attorneys’ statements were protected speech. Id. at

¶¶ 80-81. The division therefore “reverse[d] the trial court’s order

dismissing” the case and remanded “to the trial court to reinstate

the case.” Id. at ¶¶ 81-82.

1

1

A more detailed description of the facts and procedural history can

be found in BKP I. See BKP, Inc. v. Kilmer Lane & Newman, LLP,

2021 COA 144.

3

¶ 8 Given that result, we must reverse the order awarding fees

under section 13-17-201.

2

See Grear v. Mulvihill, 207 P.3d 918,

923 (Colo. App. 2009). While section 13-17-201 requires the award

of fees where a tort action is dismissed under Rule 12(b), that

section “does not authorize recovery [of attorney fees] if a defendant

obtains dismissal of some, but not all, of a plaintiff’s tort claims.”

Colo. Special Dists. Prop. & Liab. Pool v. Lyons, 2012 COA 18, ¶ 60;

accord Scott v. Scott, 2018 COA 25, ¶ 61. Thus, because BKP I

reversed the order dismissing the employer’s complaint, the

attorneys are not entitled to attorney fees under section 13-17-201.

See Scott, ¶ 61; see also Grear, 207 P.3d at923. But because the

employer did not appeal or challenge the cost order, we don’t

consider that order here.

¶ 9 Finally, given the result in BKP I and the reversal of the fee

award here, attorneys are not entitled to an award of appellate fees

2

On appeal, the employer largely challenges the reasonableness of

the fee award. They do so assuming that “the trial court’s dismissal

of [its] claims against [the attorneys] withstands appeal.” No one

appears to dispute that, if the dismissal is reversed — as was the

case here — the order awarding attorney fees must also be reversed.

See Scott v. Scott, 2018 COA 25, ¶ 61; see also Grear v. Mulvihill,

207 P.3d 918, 923 (Colo. App. 2009).

4

and costs under section 13-17-201. We therefore decline that

request.

¶ 10 For these reasons, we vacate the trial court’s order awarding

fees to the attorneys.

JUDGE WELLING and JUDGE YUN concur.