Halper v. Moore

• Court: Colorado Court of Appeals
• Decided: March 6, 2025
• Docket: 24CA0502
• Status: Unpublished

Opinion

24CA0502 Halper v Moore 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0502 San Miguel County District Court No. 22CV4 Honorable Keri A. Yoder, Judge

Mark Halper,

Plaintiff-Appellant,

v.

Jerry D. Moore; Linda K. Moore; Michael J. Lynch; and Robinson Waters & O’Dorisio, P.C.,

Defendants-Appellees.

ORDER AFFIRMED

Division II Opinion by JUDGE GOMEZ Fox and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025

Mark Halper, Pro Se

Robinson Waters & O’Dorisio, P.C., Michael J. Lynch, Telluride, Colorado, for Defendants-Appellees Jerry D. Moore and Linda K. Moore

Gordon Rees Scully Mansukhani LLP, John Palmeri, Denver, Colorado, for Defendants-Appellees Michael J. Lynch and Robinson Waters & O’Dorisio, P.C. ¶1 Plaintiff, Mark Halper, appeals the trial court’s order awarding

attorney fees and costs under Colorado’s anti-SLAPP1 statute,

§ 13-20-1101(4)(a), C.R.S. 2024, to defendants Michael J. Lynch

and Robinson Waters & O’Dorisio, P.C. (the firm).2 We affirm.

I. Background

¶2 In 2020, Jerry D. and Linda K. Moore filed a criminal trespass

complaint with the San Miguel County Sheriff’s Office alleging that

Halper, who lives near them, had illegally parked vehicles on their

property. The District Attorney’s office filed a misdemeanor charge

against Halper but later dismissed it.

¶3 Halper, representing himself, then filed the underlying case,

asserting a claim against the Moores for malicious prosecution. He

later added as defendants Lynch (the Moores’ attorney) and the firm

(where Lynch works), alleging that they “aided and abetted” and

“conspired” with the Moores in the complained-of conduct.

1 “SLAPP” stands for “strategic lawsuits against public

participation.” Creekside Endodontics, LLC v. Sullivan, 2022 COA 145, ¶ 1 n.1. 2 The order on appeal awards attorney fees and costs to these two

defendants only. The other two defendants, Jerry D. and Linda K. Moore, didn’t file a motion for fees and costs.

1 ¶4 All four defendants filed a special motion to dismiss pursuant

to the anti-SLAPP statute, § 13-20-1101(3). The trial court granted

the motion, dismissing the case with prejudice.

¶5 Halper appealed the dismissal, arguing, among other things,

that (1) the defendants lied in affidavits submitted to the trial court;

(2) the trial court erred by relying largely on law applying

California’s anti-SLAPP statute; and (3) the trial court showed the

defendants preferential treatment. A division of this court affirmed

the dismissal, granted the defendants appellate attorney fees under

section 13-20-1101(4)(a), and remanded the case to the trial court

to calculate and award those fees. Halper v. Moore, (Colo. App. No.

23CA0325, Dec. 21, 2023) (not published pursuant to C.A.R. 35(e))

(Halper I).

¶6 On remand, Lynch and the firm filed a motion and supporting

documentation seeking reimbursement of their appellate attorney

fees, as well as their appellate costs, which were recoverable under

section 13-20-1101(4)(a) and C.A.R. 39(a)(2). In its order granting

the motion, the trial court weighed the factors articulated in Payan

v. Nash Finch Co., 2012 COA 135M, and determined that the

amount of reasonable attorney fees incurred in the appeal was

2 $5,351.50. The court also found that the amount of costs

reasonably and necessarily incurred in the appeal was $189.19.

Accordingly, the court awarded Lynch and the firm a total of

$5,540.69 in appellate fees and costs.

II. Attorney Fee and Costs Award

¶7 Under the anti-SLAPP statute, § 13-20-1101(4)(a), a prevailing

defendant on a special motion to dismiss is entitled to recover their

reasonable attorney fees and costs. Creekside Endodontics, LLC v.

Sullivan, 2022 COA 145, ¶ 54.

¶8 Because trial courts have considerable discretion in

determining the amount of an attorney fee and cost award, we

review such an award for an abuse of discretion. Klein v. Tiburon

Dev. LLC, 2017 COA 109, ¶ 39; Tisch v. Tisch, 2019 COA 41, ¶ 77.

A court abuses its discretion if its award is manifestly arbitrary,

unreasonable, or unfair, Nesbitt v. Scott, 2019 COA 154, ¶ 16, or is

based on a misapplication of the law, Payan, ¶ 16. “Whether

attorney fees are reasonable is a question of fact for the trial court;

thus, we will not disturb its ruling on review unless patently

erroneous and unsupported by the evidence.” Nesbitt, ¶ 16.

3 ¶9 While Halper appeals the trial court’s order awarding appellate

attorney fees and costs to the defendants, he doesn’t advance any

arguments specifically relating to the award. Although we must

broadly construe Halper’s pleadings “to ensure that [he is] not

denied review of important issues because of [any] inability to

articulate [his] argument like a lawyer,” Jones v. Williams, 2019 CO

61, ¶ 5, we cannot “rewrite [his] pleadings” or “act as an advocate

for [him],” Johnson v. McGrath, 2024 COA 5, ¶ 10; see also Gravina

Siding & Windows Co. v. Gravina, 2022 COA 50, ¶ 71 (“[I]t is not

this court’s . . . proper function to make or develop a party’s

argument when that party has not endeavored to do so itself.”)

(citations omitted).

¶ 10 Because Halper hasn’t developed an argument that the trial

court erred in calculating and awarding attorney fees and costs,

and there is no indication that the trial court abused its discretion

in doing so, we do not disturb the order. See Johnson, ¶ 10;

Gravina Siding & Windows Co., ¶ 71; see also Loomis v. Seely, 677

P.2d 400, 402 (Colo. App. 1983).

4 III. Other Arguments

¶ 11 Instead of developing any arguments regarding the award of

attorney fees and costs, Halper advances several challenges to the

trial court’s dismissal of his complaint under section 13-20-1101(3),

including many of the same arguments that he raised and the

division rejected in Halper I.

¶ 12 The dismissal, which was already affirmed by another division

of this court, is not at issue here. See Halper I, ¶ 30. We therefore

decline to consider Halper’s arguments again challenging it. See

Saint John’s Church in Wilderness v. Scott, 2012 COA 72, ¶ 8 (“The

law of the case doctrine protects parties from relitigating settled

issues, on the grounds that courts generally ‘refuse to reopen what

has been decided.’” (quoting People ex rel. Gallagher v. Dist. Ct., 666

P.2d 550, 553 (Colo. 1983))); Simpson v. Yale Invs., Inc., 886 P.2d

689, 699 (Colo. 1994) (“When a case is remanded to the trial court

and subsequently appealed, the reviewing court will consider only

those issues arising after the remand and whether the trial court

complied with the order of remand.”).

5 IV. Appellate Attorney Fees for this Appeal

¶ 13 Finally, Lynch and the firm seek attorney fees for this appeal

under section 13-20-1101(4)(a). But they haven’t developed any

argument demonstrating that they are entitled to an award of fees

under the anti-SLAPP statute for this appeal of an attorney fee

order (rather than a dismissal order), and we will not develop that

argument for them. See Gravina Siding & Windows Co., ¶ 71; see

also C.A.R. 39.1 (“[T]he principal brief of the party claiming attorney

fees . . . must explain the legal and factual basis for an award of

attorney fees. Mere citation to this rule or to a statute, without

more, does not satisfy the legal basis requirement.”); Woodbridge

Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12 (“We

don’t consider undeveloped and unsupported arguments.”), aff’d,

2021 CO 56. We therefore deny the request for attorney fees for

this appeal.

V. Disposition

¶ 14 The order is affirmed.

JUDGE FOX and JUDGE LUM concur.