Glacier v. BK

• Court: Colorado Court of Appeals
• Decided: September 4, 2025
• Docket: 24CA2138
• Status: Unpublished

Opinion

24CA2138 Glacier v BK 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2138 Mesa County District Court No. 23CV30178 Honorable Jeremy L. Chaffin, Judge

Glacier Bank, a Montana Banking Corporation d/b/a Bank of the San Juans, a Division of Glacier Bank,

Plaintiff-Appellee,

v.

BK Limited and Bruce A. Johnson,

Defendants-Appellants.

ORDER AFFIRMED

Division V Opinion by JUDGE JOHNSON Welling and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 4, 2025

Goldman, Nicholson & Mack, P.C., Josh W. Mack, Durango, Colorado, for Plaintiff-Appellee

Drew Moore, Grand Junction, Colorado, for Defendants-Appellants ¶1 Defendant, BK Limited (the Company), appeals the district

court order awarding attorney fees and costs to plaintiff, Glacier

Bank, d/b/a Bank of the San Juans (the Bank).1 We affirm.

I. Background

¶2 In September 2020, Bruce A. Johnson (Johnson) opened a

business checking account with the Bank for the Company. The

checking account agreement provided that each account holder was

liable for any account shortages resulting from charges or

overdrafts, regardless of fault, and that, in the event of a dispute,

the Bank was entitled to reasonable attorney fees as permitted by

law. The checking account agreement also required that any

disputes involving the contract be submitted to arbitration.

¶3 In February 2023, Johnson deposited a check for $249,850

into the account. Johnson then wire transferred most of that

amount into an account at Wells Fargo. The Bank later discovered

that Johnson’s check was a fraudulent instrument, and Wells Fargo

1 Bruce A. Johnson was the sole member and owner of the

Company and named in the Bank’s complaint as a defendant. The Bank asserted an alter ego claim against Johnson to hold him personally liable for the Company’s debt. Although Johnson is named as an appellant on appeal, we see no district court judgment or order subjecting him to individual liability.

1 returned a portion of the wire-transferred funds to the Bank. All

told, Johnson’s checking account had an overdrawn balance of

$169,477.34.

¶4 In March 2023, the Bank sent the Company a demand letter

to pay the overdraft balance. By May 2023, the Company had not

paid any of the outstanding balance, so the Bank filed a breach of

contract claim against the Company and sought to pierce the

corporate veil to hold Johnson personally liable.

¶5 Around the same time, the Bank learned that the Company

was attempting to sell its only asset, real property that it owned in

Fruita, Colorado. The Bank learned of the Company’s plans when

Johnson asked the Bank for pay-off statements involving two

promissory notes encumbering the property that the Bank had

financed, the first for $120,000 and the second for $40,000.

Because the sale of the Company’s only asset would make it more

difficult for the Bank to recover its claimed damages, the Bank

sought in the district court a writ of attachment to prevent the sale

of the Company’s property.

¶6 Following a hearing, the district court found that (1) under the

account agreement’s terms and conditions, the Company was

2 required to pay its debt to the Bank; (2) the contract for the sale of

the Company’s property was executed with the intent to hinder the

Bank from collecting the existing debt the Company owed to the

Bank; and (3) the Company had not produced competent proof that

it would incur damages from a continuation of the writ of

attachment.

¶7 The property was sold for $389,000 in August 2023, and the

net proceeds of the sale were deposited in the court’s registry.

¶8 The district court action was stayed pending arbitration of the

Bank’s breach of contract claim. The Bank sought district court

confirmation of the $195,611.84 amount it was awarded in

arbitration, which included:

• $167,477.34 for the total of the Company’s overdraft balance;

• $17,124.18 for pre- and post-judgment interest; and

• $9,010.32 for attorney fees and costs attributable to the

arbitration.

The Bank also sought an award of attorney fees and costs it had

incurred when it sought the writ of attachment to prevent the sale

of the Company’s property before arbitration. The Company did not

file a response to the Bank’s request. The court confirmed the

3 arbitration award and found the Bank was entitled to an award of

the fees and costs that it had not already been awarded as part of

the arbitration award. The court ordered the Bank to file a motion

for fees and costs.

¶9 Following the court’s order, the Bank filed a motion seeking an

award of $18,272.50 in attorney fees and $1,961.96 in costs related

to the writ of attachment. The Company objected to the additional

attorney fees and costs, arguing that the court should deny the

Bank’s request because the issue of attorney fees had been resolved

by the arbitrator and was barred by the doctrine of claim or issue

preclusion.

¶ 10 The district court granted the Bank’s motion and awarded the

amount requested. In its order, the court highlighted that (1) the

arbitrator did not and was not required to determine the issue of

attorney fees in the action preceding arbitration; (2) the Company

did not challenge the amount of the Bank’s fees or costs based on

reasonableness or based on any grounds other than issue

preclusion; and (3) the Company’s objection was filed after the court

had already granted the Bank’s motion for an award of additional

4 fees and costs and without any good cause justification or showing

of excusable neglect for having failed to timely object.

¶ 11 The Company now appeals.

II. Standard of Review

¶ 12 We review a district court’s decision to award attorney fees for

an abuse of discretion. Nesbitt v. Scott, 2019 COA 154, ¶ 16. A

court abuses its discretion if the award is manifestly arbitrary,

unreasonable, or unfair, or based on a misapplication of the law.

Adams Cnty. Hous. Auth. v. Panzlau, 2022 COA 148, ¶ 17.

¶ 13 Whether issue preclusion bars subsequent review of a claim or

issue in a different proceeding is a question of law that we review de

novo. Vanderpool v. Loftness, 2012 COA 115, ¶ 17.

III. Preservation

¶ 14 The Bank contends that the Company did not preserve its

objection to the district court’s decision to award the Bank its

attorney fees and costs because the Company did not object until

after the court had already determined that the Bank was entitled

to such an award.

¶ 15 We acknowledge that the Company did not file a response

objecting to the Bank’s request for attorney fees and costs, which

5 the Bank asked for in its motion to confirm the arbitration award.

But if a party raises an argument to such a degree that the court

has the opportunity to rule on it, the argument is considered

preserved for appeal. Brown v. Am. Standard Ins. Co. of Wis., 2019

COA 11, ¶ 21. Here, the Company argued in its belated objection

that the fees preceding arbitration were barred by res judicata

because the arbitrator awarded fees as part of that award. In

granting the additional attorney fees requested by the Bank, the

district court addressed and rejected the Company’s issue

preclusion argument. Therefore, we deem the Company’s objection

preserved for appellate review.2

IV. Analysis

¶ 16 The Company contends that the district court erred in

awarding the Bank the additional attorney fees and costs because

the award was barred by res judicata. We disagree.

2 The Bank also contends we should not review the Company’s

argument because the Company failed to cite the precise location in the record where the issue was raised and ruled on by the court in accordance with C.A.R. 28(a)(7)(A). The record on appeal was not voluminous and, therefore, we were able to locate the necessary portions of the record. We remind counsel, however, to comply with the appellate briefing rules in the future.

6 ¶ 17 We will not use the term “res judicata,” as the supreme court

in Foster v. Plock, 2017 CO 39, ¶¶ 14-15, abandoned it for the more

precise terms of “claim preclusion” and “issue preclusion.” Id.; see

also Argus Real Est., Inc. v. E-470 Pub. Highway Auth., 109 P.3d

604, 608 (Colo. 2005) (noting the phrase “res judicata” was

commonly used as an overarching label for both claim and issue

preclusion).

¶ 18 Claim preclusion and issue preclusion are “designed to ‘relieve

parties of multiple lawsuits, conserve judicial resources, and

promote reliance on the judicial system by preventing inconsistent

decisions.’” Vanderpool, ¶ 11 (quoting Reynolds v. Cotten, 2012 CO

27, ¶ 9). Here, the district court applied the doctrine of issue

preclusion, which prohibits litigation of an issue in a second

proceeding if four elements are met: (1) the issue is identical to an

issue actually litigated and necessarily adjudicated in the prior

proceeding; (2) the party against whom estoppel was sought was a

party to or was in privity with a party to the prior proceeding; (3)

there was a final judgment on the merits in the prior proceeding;

and (4) the party against whom the doctrine is asserted had a full

7 and fair opportunity to litigate the issues in the prior proceeding.

Stanton v. Schultz, 222 P.3d 303, 307 (Colo. 2010).

¶ 19 The district court focused on the first factor and determined

that the award of additional fees and costs had not been “actually

litigated and necessarily adjudicated in the prior proceeding.” The

court reasoned that the arbitrator “felt his consideration was limited

to only attorney fees attributable to the arbitration and that any

request related to fees for this action would be best left to be

determined by” the district court. As a result, the district court was

not “persuaded that issue preclusion prohibits award of the

requested attorney fees.”

¶ 20 We agree with the court’s conclusion because the attorney fees

and costs sought by the Bank were not identical to those awarded

as part of the arbitration award. The final arbitration award noted

that the “Bank initially chose to file litigation in state court, rather

than initiating arbitration, per the Agreement.” As a result, the

arbitrator said that “any costs and fees related to the prior litigation

will not be awarded herein.” The final award further stated that

“the amounts awarded [as part of the arbitration award] for costs

and fees will be only for costs and fees associated with this

8 arbitration incurred by Bank after the date of the filing of this

arbitration on November 3, 2023.”

¶ 21 With a few exceptions, the bill of costs submitted by the Bank

as part of its motion for attorney fees included dates for attorney

work performed or costs incurred either before November 2, 2023 or

after entry of the final arbitration award on August 15, 2024. A few

exceptions included attorney work to file a motion with the court for

a continued stay during arbitration in February 2024,

correspondence with opposing counsel related to a filed status

report with the court in June 2024, and court filing fees in June

2024.

¶ 22 We see nothing in the bill of costs seeking recovery for

attorney work or costs related to litigating the arbitration matter.

Instead, the attorney fees and costs dealt with work related to the

Bank initiating the district court matter to protect its interest in the

Company assets to satisfy any judgment the Bank obtained against

the Company, confirmation of the arbitration award, and briefing on

this request for attorney fees and costs. The Company has not

challenged the attorney fee award based on the reasonableness of

the amount charged, nor has it objected to any specific item on the

9 bill of costs. And the Company has not identified, nor can we

discern, any attorney fees or costs that the Bank sought and

obtained from the district court that were identical to those

awarded as part of the arbitration award. Consequently, we

conclude the district court did not abuse its discretion by awarding

the Bank $18,272.50 in attorney fees and $1,961.96 in costs for

litigation preceding and following the arbitration.

V. Conclusion

¶ 23 We affirm the district court’s order.

JUDGE WELLING and JUDGE GROVE concur.