25CA0051 Estate of Sherwin 02-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0051 Jefferson County District Court No. 21PR31375 Honorable Todd L. Vriesman, Judge
In re the Estate of Suzanne Sherwin, deceased.
Paul E. Simmerly,
Appellant,
v.
Leslie Towner, Personal Representative,
Appellee.
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE MOULTRIE Dunn and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 26, 2026
Paul E. Simmerly, Pro Se
Lathrop GPM, LLP, Alison E. Zinn, Casey C. Breese, Denver, Colorado, for Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 In this probate case, Paul E. Simmerly appeals the district
court’s order awarding Leslie Towner, the personal representative
for the estate of Suzanne Sherwin (the estate), her reasonable
attorney fees. We affirm and remand the case with directions.
I. Background
¶2 Suzanne Sherwin died testate in September 2021. A few
months later, Towner filed an “Application for Informal Probate of
Will and Informal Appointment of Personal Representative” with the
assistance of attorney John Valentine, whom she had retained to
represent her in administrating the estate. The registrar entered an
order admitting Sherwin’s will to informal probate and appointing
Towner as the personal representative of the estate. Simmerly is
Sherwin’s cousin and a 20% beneficiary of the residual estate.
¶3 After her appointment, Towner began liquidating the estate’s
assets. Within nine months of opening the probate proceeding, she
made two partial distributions to the residual beneficiaries,
including Simmerly.
¶4 In January 2023, Towner filed a petition (the petition)
requesting that the court enter an order for final settlement of the
estate, along with a final accounting, a final inventory, and a status
1 report detailing how the estate’s assets had been distributed.
Towner requested the court enter the order after the time noticed
for a nonappearance hearing. Simmerly objected to the court
holding a nonappearance hearing and filed several pleadings setting
forth his specific objections to the petition. Simmerly objected to
the court ordering the final settlement because he hadn’t received
information about the attorney fees that Valentine had charged the
estate. He also disputed the appropriateness of Towner’s handling
of the estate’s assets and questioned the accuracy of the hours
supporting her compensation.
¶5 Towner retained a different law firm — Lathrop GPM, LLP
(Lathrop) — to defend against Simmerly’s objections. Lathrop filed
an “omnibus” response to Simmerly’s initial set of objections, to
which it attached Valentine’s attorney fee statements and
approximately 240 pages of time logs detailing the services Towner
had provided to the estate from September 2021 through December
2022.
¶6 Simmerly then filed two more pleadings objecting to the
reasonableness of Valentine’s fees and Towner’s compensation.
2 Simmerly also filed several motions seeking court authorization to
conduct discovery, which the court denied.
¶7 The court held a two-day evidentiary hearing under section
15-10-604, C.R.S. 2025, to determine whether Valentine’s fees and
Towner’s compensation were reasonable (fees and compensation
hearing). About six months after the fees and compensation
hearing, the court entered an order in May 2024 (May order) in
which the court found, as relevant here, that
• the compensation paid to Towner and the attorney fees
and costs incurred by the estate and paid to Valentine
were reasonable;
• Simmerly’s objections and fee disputes were made in bad
faith; and
• Towner was entitled to reasonable attorney fees and costs
under section 15-10-605(1), C.R.S. 2025, for defending
against Simmerly’s bad faith objections and fee disputes.
¶8 After the hearing, Lathrop filed a “Submission of Declaration of
Attorneys’ Fees and Costs” (fees declaration) that requested the
3 court award Towner a total of $94,855.501 in reasonable attorney
fees and costs against Simmerly. Lathrop attached to the fees
declaration forty-seven pages of invoices for its work from January2
2023 to January 2024 and seventeen pages of invoices from
Valentine for the same period.
¶9 Simmerly responded and objected to the amount of attorney
fees requested. The court entered an order in November 2024
(November order) finding, among other things, that (1) Simmerly’s
response didn’t challenge any task, any time entry, or the attorneys’
charged rates; (2) Towner’s hiring of Lathrop was reasonable and
necessary and not duplicative of Valentine’s work; and (3) all
sixty-four pages of invoices attached to the fees declaration
contained sufficient detail to allow the court to assess the
reasonableness of the requested fees. The court concluded that the
full amount of the attorney fees and costs Towner requested was
reasonable and awarded her that amount.
1 This total includes $75,232 incurred by Lathrop GPM, LLP
(Lathrop) and $19,623.50 incurred by Valentine in defending against Simmerly’s objections and fee dispute. 2 The first invoices from Lathrop and Valentine are dated March
2023, but the time entries on those invoices include time from January 2023.
4 ¶ 10 Shortly before the court issued the November order, Simmerly
filed a motion asking the court to declare the May order void under
C.R.C.P. 60(b). The court denied that motion in December 2024
(December order).
¶ 11 In January 2025, Simmerly filed the underlying appeal. In his
notice of appeal, he indicated he was challenging three orders: the
May order, the November order, and the December order. Towner
filed a motion asking this court to partially dismiss Simmerly’s
appeal for lack of jurisdiction because his appeal of the May order
was untimely. This court granted the motion and limited
Simmerly’s appeal to the November and December orders.
¶ 12 After Simmerly filed his opening brief, Towner filed a motion
asking this court to strike his brief because he primarily addressed
the May order. This court granted Towner’s motion to strike and
directed Simmerly to file an amended brief that complied with its
orders. After Simmerly filed an amended opening brief, Towner
asked this court to strike his amended brief, dismiss the appeal
with prejudice, and award her appellate attorney fees and costs
(second motion to strike). The merits of the second motion to strike
were deferred to this division.
5 ¶ 13 We first consider the merits of the second motion to strike.
II. We Partially Grant the Second Motion to Strike
¶ 14 In his amended opening brief, Simmerly identifies four3 issues
on appeal. Simmerly asserts that the district court erred by
(1) failing to conclude he was the prevailing party; (2) denying his
request for discovery; (3) declining to admit certain exhibits at the
fees and compensation hearing; and (4) awarding Towner’s attorney
fees against him.
¶ 15 When a court enters a final judgment, the court’s earlier
orders and rulings merge into that judgment and generally become
reviewable. Mulberry Frontage Metro. Dist. v. Sunstate Equip. Co.,
2023 COA 66, ¶ 14. “[A] judgment is final if it disposes of the entire
litigation on the merits, leaving nothing for the court to do but
execute on the judgment,” even when an award of attorney fees
remains unresolved. Id. at ¶¶ 14, 17; see also Kennedy v. Gillam
Dev. Corp., 80 P.3d 927, 929 (Colo. App. 2003) (“[A]n award of
3 We identify four issues on appeal despite Simmerly listing six. We construe as a single issue Simmerly’s first three listed “issues” because they each relate to his assertion that he was the prevailing party with respect to various aspects of the litigation that occurred before or during the fees and compensation hearing.
6 attorney fees is distinct and separately appealable from the
judgment on the merits.”). If a party fails to timely appeal a final
judgment, an appellate court lacks jurisdiction to consider the
merits. In re Estate of Anderson, 727 P.2d 867, 869 (Colo. App.
1986).
¶ 16 Here, the May order disposed of the litigation on the merits
because Simmerly’s challenge to Valentine’s fees and Towner’s
compensation was the only issue left to be resolved before the estate
could be settled and closed. Thus, contrary to Simmerly’s
assertions, the unresolved issue of attorney fees didn’t prevent the
May order from serving as a final judgment. See Mulberry Frontage
Metro. Dist., ¶¶ 14, 17.
¶ 17 Simmerly’s arguments in support of his first three issues
challenge various court rulings leading up to the May order. Those
rulings, therefore, merged into the May order and would have been
reviewable if he had filed a notice of appeal within forty-nine days
after the court entered that order. See C.A.R. 4(a)(1). But Simmerly
filed his notice of appeal almost eight months after the court
entered the May order. We lack jurisdiction to consider the first
7 three issues Simmerly raises on appeal. Accordingly, we grant in
part Towner’s second motion to strike.
¶ 18 We now turn to the merits of Simmerly’s appeal of the
November order and address Towner’s request for appellate
attorney fees and costs.
III. Applicable Legal Principles
A. Reasonable Attorney Fees Under the Colorado Probate Code
¶ 19 “A fiduciary and [their] lawyer are entitled to reasonable
compensation for services rendered on behalf of an estate.”
§ 15-10-602(1), C.R.S. 2025. Additionally, section 15-10-605(1)
permits a court to assess reasonable attorney fees and costs against
a party who files pleadings in bad faith in a probate proceeding. If a
personal representative is required to defend the reasonableness of
their compensation or costs, then the court “may assess the
reasonable fees and costs incurred in the proceeding as the court
deems equitable” and allocate those fees and costs against any
party involved in the proceeding “as justice and equity may require.”
§ 15-10-605(2).
¶ 20 Section 15-10-604 sets forth the procedure a court must
follow when a dispute concerning fees arises. A court must hold a
8 hearing and issue findings of fact and conclusions of law that
reference the reasonableness factors set forth in section
15-10-603(3), C.R.S. 2025, “and any other factors it deems relevant
to its decision.” § 15-10-604(4); see In re Estate of Gonzalez, 2024
COA 63, ¶¶ 45-47 (noting that the court must consider the factors
in section 603 and may consider other factors when determining
whether fees are reasonable). While section 603(3) requires a court
to consider thirteen specific factors in determining reasonableness,
it grants the court discretion to assess the weight of each factor and
any other relevant factors. See § 15-10-603(3)(a)-(m).
B. Standard of Review
¶ 21 We review a court’s order awarding reasonable attorney fees
and costs for an abuse of discretion. In re Estate of Fritzler, 2017
COA 4, ¶ 24. A court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair or misapplies the law.
Id. at ¶ 6. “The determination of what constitutes reasonable
attorney fees ‘is a question of fact for the [district] court and will not
be disturbed on review unless it is patently erroneous and
unsupported by the evidence.’” Yaekle v. Andrews, 169 P.3d 196,
201 (Colo. App. 2007) (quoting Am. Water Dev., Inc. v. City of
9 Alamosa, 874 P.2d 352, 386 (Colo. 1994)), aff’d on other grounds,
195 P.3d 1101 (Colo. 2008).
IV. Analysis
¶ 22 As an initial matter, we note that although Simmerly identified
the December order as one he was challenging on appeal, he
doesn’t make any arguments regarding the December order in his
opening brief and concedes in his reply brief that the November
order is “[t]he operative order in this appeal.” Thus, we deem any
challenge to the December order abandoned. See In re Marriage of
Marson, 929 P.2d 51, 54 (Colo. App. 1996) (issues identified in the
notice of appeal but not addressed in the opening brief are
abandoned).
¶ 23 With respect to the November order, Simmerly argues that
section 605 requires an equitable balancing test when a court
determines whether to award attorney fees. And he asserts that our
review is de novo because his argument involves the interpretation
of section 605. But Simmerly doesn’t challenge the court’s
interpretation of section 605; rather, he disputes the court’s
application of section 605. See Fritzler, ¶ 6 (noting an abuse of
10 discretion includes the court’s misapplication of the law).
Accordingly, we review for an abuse of discretion.
¶ 24 Simmerly lists fifteen4 “factors” that the court failed to
consider when it erred by awarding fees against him. He argues
that if the court had considered the fifteen “factors,” then it
wouldn’t have awarded Towner her reasonable attorney fees.
¶ 25 However, none of the “factors” that Simmerly lists are among
the thirteen factors set forth in section 603. And ten5 of the fifteen
“factors” that Simmerly lists relate to the May order, so we lack
jurisdiction to consider his arguments with respect to them.
Simmerly’s five remaining “factors,” which he asserts demonstrate
error, are as follows:
(1) Towner didn’t need the services of multiple attorneys to
defend against his objections.
(2) “This is a case of first impression.”
(3) “This case was out of control” through no fault of his
own.
4 Simmerly labels these asserted errors by letters “a” through “m” in
his amended opening brief. 5 These are the arguments Simmerly labels as “a” through “c” and
“h” through “n,” reordered for purposes of discussion.
11 (4) “Probate fiduciaries should not be able to charge
whatever they want” and awarding attorney fees for
multiple attorneys “essentially nullifies” section 604 and
legislative intent.
(5) Because he is an estate beneficiary, he “should have the
absolute right to raise legitimate questions and concerns
about the administration of the estate” without being
sued.
¶ 26 We reject Simmerly’s contentions of error for three reasons.
¶ 27 First, to the extent that Simmerly asserts that the court didn’t
equitably consider whether fees should be awarded under the
circumstances of this case, we disagree. The record demonstrates
that the court considered the section 603(3) factors relevant to its
determination of the reasonableness of Towner’s requested attorney
fees under the circumstances of this case. See § 15-10-603(2)
(“[T]he court shall apply the standard of reasonableness in light of
all relevant facts and circumstances.”).
¶ 28 Indeed, in its May order, the court explicitly addressed
relevant section 603 factors to assess the reasonableness of the
attorney fees up to that point. And Simmerly’s objection to the fees
12 declaration submitted after the fees and compensation hearing
merely repeated many of the arguments about the reasonableness
of the fees that the court had already considered and rejected.
¶ 29 Nonetheless, with respect to his argument that Lathrop’s
services were duplicative of Valentine’s services, the court found
that Simmerly acknowledged that Valentine primarily handled
estate administration, while Lathrop handled the litigation in
response to his objections. The court thus concluded that the
“transfer of responsibility was reasonable and necessary and was
not duplicative.”
¶ 30 And although Simmerly asserts that this case is one of first
impression, he nearly immediately contradicts himself and states
that this case doesn’t involve “novel or difficult” issues. In any
event, the record demonstrates that the court considered “[t]he time
and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the service properly.”
§ 15-10-603(3)(a). The court found that because the estate
consisted of “numerous financial accounts and multiple different
financial institutions, requiring a significant level of organization
and detail,” it was reasonable for Towner to “retain counsel
13 experienced in probate administration and estate financial and tax
matters.”
¶ 31 Likewise, even if we construe his assertion that the case was
“out of control” as an argument under section 603(3)(e), which
requires the court to consider “[w]hether and to what extent any
litigation has taken place and the results of such litigation,”
§ 15-10-603(3)(e), the record demonstrates that the court expressly
considered the circumstances of the litigation. The court concluded
that Simmerly brought and prosecuted his objections in bad faith,
his conduct was “stubbornly litigious,” and he “created
unwarranted delay for final settlement” of the estate.
¶ 32 Second, Simmerly argues that the Colorado Probate Code
allows probate fiduciaries “to charge whatever they want” and that
allowing an attorney fees award for multiple attorneys “essentially
nullifies” section 604 and legislative intent. Because these
arguments are presented without development or citation to legal
authority, we decline to further consider them. See Barnett v. Elite
Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010).
¶ 33 Third, section 604 allows an estate beneficiary to raise
legitimate disputes concerning fees and compensation related to the
14 administration of an estate. That is exactly what happened here
when Simmerly filed his objections to Towner’s compensation and
Valentine’s fees. However, section 605 expressly authorizes a court
to award reasonable attorney fees to a personal representative who
defends against such a dispute when the court finds the party who
disputed the fees and compensation did so in bad faith. See
§ 15-10-605(1)-(2). Simmerly fails to cite any authority that gives
an estate beneficiary immunity from an award of attorney fees
under section 605. Rather, he again presents this assertion in a
conclusory manner without any supporting authority. See Barnett,
252 P.3d at 19.
¶ 34 Simmerly doesn’t challenge the reasonableness of Valentine’s
or Lathrop’s rates.6 In awarding Towner’s fees, the court explained
that it was familiar with the litigation history in the case, and it had
reviewed all the invoices that were attached to the fees declaration,
6 Simmerly does argue that it was unreasonable for Valentine to be
awarded the fees he incurred for making corrections to “improper redactions” to invoices. He also disputes an “unexplained” charge from November 2022 by an attorney with whom Valentine consulted. But these arguments relate to matters that were addressed at the fees and compensation hearing and that were subject to the May order — which we don’t have jurisdiction to review.
15 which in turn detailed the attorneys’ work. The court’s conclusion
that Towner’s requested fees were reasonable under the
circumstances of this case are thus supported by the record.
¶ 35 Accordingly, Simmerly hasn’t demonstrated that the court
abused its discretion when it awarded attorney fees against him.
Therefore, we won’t disturb the award. See In re Estate of Musso,
932 P.2d 853, 857 (Colo. App. 1997) (it’s within the discretion of the
district court to determine the reasonableness for attorney fees
incurred by a personal representative, and we won’t disturb the
court’s award absent a showing of an abuse of discretion).
V. Towner’s Request for Appellate Attorney Fees and Costs
¶ 36 Towner requests an award of her appellate attorney fees under
C.A.R. 38 and C.A.R. 39.1 and her appellate costs under C.A.R. 39.
We grant her request and, acting on our own motion, also award
reasonable attorney fees under section 13-17-102(6), C.R.S. 2025.
See Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App.
2006).
¶ 37 Section 13-17-102(6) provides,
A party who is appearing without an attorney . . . shall not be assessed attorney fees . . . unless the court finds that the party
16 clearly knew or reasonably should have known that the party’s action or defense, or any part of the action or defense, was substantially frivolous, substantially groundless, or substantially vexatious . . . .
(Emphasis added.)
¶ 38 An appeal is frivolous as argued if the appellant has
committed misconduct in arguing the appeal. Martinez v. LHM
Corp., TCD, 2020 COA 53M, ¶ 25, aff’d on other grounds, 2021 CO
78. However, an appeal shouldn’t be considered frivolous merely
because it is ultimately unsuccessful or it advances a claim that is
not recognized under existing law. W. United Realty, Inc. v. Isaacs,
679 P.2d 1063, 1069 (Colo. 1984).
¶ 39 If an appellate court determines that an appeal is frivolous,
then it may award damages it deems appropriate, including
attorney fees. C.A.R. 38(b); Castillo, 148 P.3d at 292 (an appeal is
substantially frivolous under section 13-17-102 “when the
appellant’s briefs fail to set forth, in a manner consistent with
C.A.R. 28, a coherent assertion of error, supported by legal
authority”); see also C.A.R. 38(a) (“The appellate court may . . .
impose other sanctions it deems appropriate, including attorney
fees, for the failure to comply with any of its orders . . . .”).
17 ¶ 40 This court issued an order striking Simmerly’s initial opening
brief and expressly limiting his appeal to the November and
December orders because any challenge to the May order was
untimely. Given that order, Simmerly knew that he shouldn’t
address the May order and instead should focus his appeal on the
November and December orders. Yet Simmerly primarily challenges
the May order in his amended opening brief. As such, we conclude
that Simmerly lacked substantial justification for, and committed
misconduct by, raising all but one of the issues he identified. See
Martinez, ¶ 25; see also § 13-17-102(6) (allowing a court to assess
attorney fees against a party who clearly knew that any part of their
action was substantially frivolous).
¶ 41 Accordingly, we conclude that Towner is entitled to her
reasonable appellate attorney fees under section 13-17-102(6),
C.A.R. 38(b), and C.A.R. 39.1 for both motions to strike and for
responding to the majority of Simmerly’s amended opening brief.
Additionally, because we are affirming the November order, Towner
is entitled to an award of her appellate costs under C.A.R. 39(a)(2).
We remand this case to the district court for determination of the
amount of such fees and costs. See C.A.R. 39.1; see also SG Ints. I,
18 Ltd. v. Kolbenschlag, 2019 COA 115, ¶¶ 40, 46 (remanding case to
the district court for a determination and award of reasonable
appellate attorney fees arising out of a frivolous appeal).
VI. Disposition
¶ 42 The order is affirmed, and the case is remanded to the district
court to determine the amount of Towner’s reasonable appellate
JUDGE DUNN and JUDGE BERNARD concur.