COLORADO COURT OF APPEALS 2017COA53
Court of Appeals No. 15CA1557 Jefferson County District Court No. 13PR534 Honorable Lily W. Oeffler, Judge
In re the Estate of Arlen E. Owens, deceased.
David Owens,
Petitioner-Appellee,
v.
Angela Dominguez,
Respondent-Appellant.
JUDGMENTS AFFIRMED
Division I Opinion by JUDGE TAUBMAN Graham and Navarro, JJ., concur
Announced April 20, 2017
Craig Wagner Law Firm, Craig E. Wagner, Denver, Colorado, for Petitioner- Appellee
Azizpour Donnelly, LLC, Katayoun A. Donnelly, Denver, Colorado, for Respondent-Appellant ¶1 Appellant, Angela Dominguez, appeals the district court’s
judgment granting the petitions of appellee, David Owens, for
determination of testacy and to set aside nonprobate transfers.
Dominguez also appeals a subsequent district court judgment
holding her in contempt. We affirm.
I. Background
¶2 After he was discharged from a recovery center for health
issues, Dr. Arlen E. Owens (the decedent) hired Dominguez as his
private caregiver in 2010. The decedent was diagnosed with
“memory impairment” upon his release and returned home despite
medical advice to move to assisted living. The decedent died in July
2013.
¶3 After the decedent’s death, his brother and only living heir,
Owens, filed a petition for informal probate of the decedent’s will
and informal appointment of personal representative. He was then
appointed the personal representative of the estate. In March 2014,
Owens filed a petition for determination of testacy and for
determination of heirs, alleging that the will that the decedent had
signed in July 2012 was the product of undue influence by
Dominguez and that the decedent had lacked the capacity to
1 execute the will. Owens also filed a complaint for recovery of estate
assets and asked that the court invalidate the will and order that
the decedent’s estate be administered under intestate distribution
statutes.
¶4 In March 2015, Owens filed a petition to set aside nonprobate
transfers. He contended that payable-on-death (POD) designations
on three accounts, executed by the decedent with Dominguez as the
beneficiary, should be set aside on the ground that Dominguez had
exerted undue influence on the decedent, who had lacked the
capacity to execute the POD designations. In response, Dominguez
filed a motion to dismiss the petition to set aside the POD
designations for lack of jurisdiction, arguing that the POD
designations were nonprobate transfers not governed by the probate
code. The district court denied Dominguez’s motion.
¶5 At the request of Owens and over Dominguez’s jurisdictional
objections, the district court imposed a constructive trust over the
three POD accounts at issue. Then in July 2015, the court held an
evidentiary hearing on the issues of testamentary capacity and
undue influence. Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009).
In a written order, the court found that the decedent had not had
2 the capacity to execute the POD designations and had been unduly
influenced by Dominguez. However, it found that the decedent had
had the testamentary capacity to execute his will and had not been
unduly influenced by Dominguez in signing his will.
¶6 After the court issued its final judgment, it issued a contempt
order against Dominguez for violation of the constructive trust as it
related to $140,000 from the State Farm Bank account. Dominguez
objected on the grounds that the court did not have jurisdiction to
impose the constructive trust. The court sentenced her to six
months in county jail, with the condition that she could purge the
contempt by making $50,000 monthly payments until she paid
$140,000.
II. Standing
¶7 Dominguez contends that the district court did not have
jurisdiction to set aside the POD designations and impose a
constructive trust on the POD accounts because Owens and the
estate did not have standing to make such requests. Owens
responds that Dominguez cannot raise her standing claims on
appeal, and that her standing claims do not relate to the court’s
authority in this case. We conclude that Dominguez can raise her
3 standing claims on appeal based on the holding of In re Estate of
Murphy, 195 P.3d 1147, 1150-51 (Colo. App. 2008).
A. Standard of Review
¶8 “[S]tanding is a jurisdictional prerequisite to every case and
may be raised at any stage of the proceedings, including on appeal.”
HealthONE v. Rodriguez, 50 P.3d 879, 891 n.5 (Colo. 2002). We
review issues of standing de novo. Ainscough v. Owens, 90 P.3d
851, 856 (Colo. 2004).
¶9 Owens argues that Dominguez never raised the issue of
standing in the district court and never disputed that he had a
legally protected right to pursue a correct probate determination of
his brother’s estate. He asserts that as a result, Dominguez has not
preserved this issue for appeal and that we may not review it.
However, “lack of standing is a jurisdictional issue and may be
raised at any time.” Peters v. Smuggler-Durant Mining Corp., 910
P.2d 34, 38 (Colo. App. 1995), aff’d, 930 P.2d 575 (Colo. 1997).
B. Applicable Law
¶ 10 “The question of standing involves a consideration of whether
a plaintiff has asserted a legal basis on which a claim for relief can
be predicated.” Bd. of Cty. Comm’rs v. Bowen/Edwards Assocs.,
4 Inc., 830 P.2d 1045, 1052 (Colo. 1992). To establish standing, a
plaintiff must demonstrate that (1) he or she was injured in fact and
(2) the injury was to a legally protected interest. See Hickenlooper v.
Freedom from Religion Found., Inc., 2014 CO 77, ¶ 18, 338 P.3d
1002, 1006; Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d
535, 539 (1977).
¶ 11 Under Colorado law, a POD designation is defined as follows:
[T]he designation of (i) a beneficiary in an account payable on request to one party during the party’s lifetime and on the party’s death to one or more beneficiaries, or to one or more parties during their lifetimes and on death of all of them to one or more beneficiaries, or (ii) a beneficiary in an account in the name of one or more parties as trustee for one or more beneficiaries if the relationship is established by the terms of the account and there is no subject of the trust other than the sums on deposit in the account, whether or not payment to the beneficiary is mentioned.
§ 15-15-201(8), C.R.S. 2016. In Colorado, POD accounts are not
considered a part of the probate estate, although the probate code
does permit POD designations. See id. (defining “POD
designation”); see also § 15-15-203, C.R.S. 2016 (authorizing POD
accounts); § 15-15-212(2), C.R.S. 2016 (explaining rights on death
concerning POD accounts).
5 ¶ 12 A district court sitting in a probate matter has the same
jurisdiction as the Denver Probate Court. In re Estate of Lembach,
622 P.2d 606, 607 (Colo. App. 1980). Probate courts, and by
extension, district courts sitting in probate, have broad jurisdiction
“to determine every legal and equitable question arising in
connection with decedents’ . . . estates, so far as the question
concerns any person who is before the court by reason of any
asserted right in any of the property of the estate.” In re Estate of
Murphy, 195 P.3d at 1151 (emphasis added) (quoting § 13-9-
103(3)(a), C.R.S. 2016). Such courts also have jurisdiction
[i]n any case in which a district court could grant such relief in a separate action brought therein, to impose or raise a trust with respect to any of the property of the decedent or any property in the name of the decedent, individually or in any other capacity, in any case in which the demand for such relief arises in connection with the administration of the estate of a decedent[.]
§ 13-9-103(3)(b) (emphasis added).
¶ 13 The Murphy division held that, based on the language of
section 13-9-103(3)(a) and (b), “the phrase ‘in connection with’ [was]
a grant of authority to resolve disputes logically relating to the
estate,” and it found that resolving the question regarding the joint
6 tenancy property at issue there — not considered part of a probate
estate — was “essential to the proper and orderly distribution of
estate property.” In re Estate of Murphy, 195 P.3d at 1151-52
(citations omitted); see also § 15-10-302(2), C.R.S. 2016 (The
probate court “has full power to make orders . . . necessary and
proper to administer justice in the matters which come before it.”).
Thus, a district court’s jurisdiction — and its authority to impose
restrictions on nonprobate assets — may extend even to property
claimed by the estate that may ultimately not belong to the estate.
See In re Estate of Lembach, 622 P.2d at 608.
C. Analysis
¶ 14 Consequently, the Denver Probate Court — and, as interpreted
in Lembach, a district court — has jurisdiction to determine every
legal and equitable question arising in connection with an estate,
when any person comes before the court with any asserted right in
the property of the estate. In re Estate of Murphy, 195 P.3d at
1151-52. The court has the power to resolve such questions that
are “essential to the proper and orderly distribution of estate
property.” Id. at 1152 (citing § 15-10-302(2)). Thus, the governing
statutes and case law indicate that the district court has broad
7 jurisdiction over any probate and nonprobate matters that are
essential to proper administration of an estate.
¶ 15 In this case, resolving the issues surrounding the POD
designations was essential to the proper and orderly administration
of the decedent’s estate. Because the money subject to the POD
transfers would otherwise be a part of the decedent’s estate, the
court was required to determine whether Owens’ allegations of
undue influence and lack of testamentary capacity were true.
Owens petitioned to determine testacy and heirs, to recover estate
assets, and to set aside the POD designations. As relevant here, he
alleged that Dominguez had asserted undue influence over the
decedent and that the decedent had lacked the testamentary
capacity to designate Dominguez as the beneficiary of the POD
accounts. Thus, Owens’ claims regarding the POD designations
were legal and equitable questions that arose in connection with the
estate.
¶ 16 We conclude that the reasoning in In re Estate of Murphy
concerning joint tenancy real property applies equally to an heir’s
potential interest in accounts with POD designations. Thus, we
conclude that the court had jurisdiction to impose a constructive
8 trust on the three POD accounts. See id. at 1151-52; see also
Mitchem v. First Interstate Bank of Denver, N.A., 802 P.2d 1141,
1142 (Colo. App. 1990) (“The power to determine whether to impose
a constructive trust is a matter within the purview of the probate
court.”); In re Estate of Lembach, 622 P.2d at 608.
¶ 17 Therefore, following the reasoning in Murphy, we conclude that
Owens had standing in this matter and the district court had
jurisdiction to impose a constructive trust and review his claims.
III. Mental Capacity and Undue Influence
¶ 18 Dominguez next asserts that the district court erred when it
determined that the decedent had not had the testamentary
capacity to designate Dominguez as beneficiary of the POD
accounts and that Dominguez had unduly influenced the decedent
to designate her as beneficiary of the three accounts. We disagree.
¶ 19 Claims regarding the sufficiency of the evidence are mixed
questions of law and fact. “‘Where there is a mixed question of law
and fact, the reviewing court will give deference to the trial court’s
factual findings, absent an abuse of discretion,’ but will
independently review questions of law.” Sheridan Redevelopment
9 Agency v. Knightsbridge Land Co., 166 P.3d 259, 262 (Colo. App.
2007) (quoting Sanger v. Dennis, 148 P.3d 404, 410 (Colo. App.
2006)).
¶ 20 Owens argues that the issue of “evidentiary sufficiency” was
never raised or even mentioned in the district court and that
Dominguez’s pro se motion to set aside the judgment pursuant to
C.R.C.P. 59 and 60 did not expressly raise a sufficiency of the
evidence argument. Therefore, he argues, the issue has not been
preserved for appeal.
¶ 21 We conclude that Dominguez sufficiently preserved the issue
for appellate review by including it in her motion to set aside the
judgment. Where an issue was brought to the district court’s
attention and the court ruled on it, it is preserved for appellate
review; no talismanic language is required to preserve an issue. See
Target Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12, ¶ 23, 351
P.3d 493, 499.
¶ 22 “It is the trial court’s sole province to resolve disputed factual
issues and to determine witnesses’ credibility, the weight to accord
testimony, and the inferences to be drawn from the evidence.” Id.
10 at ¶ 24, 351 P.3d at 499. Indeed, a trial court’s “determination of” a
testifying witness’ “credibility [is] entirely within the purview of the
trial court as the finder of fact and is binding upon” an appellate
court. People v. Fordyce, 705 P.2d 8, 9 (Colo. App. 1985). “The trier
of fact is not required to accept a witness’ testimony, even [if] it is
uncontroverted.” Id. We “may not reweigh evidence or substitute
[our] judgment for that of the trial court.” Target Corp., ¶ 24, 351
P.3d at 499.
¶ 23 In its detailed, eight-page ruling following the June 2015
hearing, the district court made numerous factual findings,
including that Dominguez lacked credibility due to inconsistencies
in her testimony. It also found that the evidence suggested that
Dominguez had attempted to mislead the court regarding her
involvement in the POD designations “in order to appear less
controlling and less influential in the Decedent’s transactions.”
¶ 24 The court concluded this despite Dominguez’s contention that
she presented unrefuted evidence from ten different witnesses that
the decedent had testamentary capacity to designate her as
beneficiary of the POD accounts. The trial court noted that most of
11 those witnesses had only met with the decedent briefly and retained
a financial stake in testifying in favor of Dominguez. The court
instead found that the testimony of the decedent’s attorney, who
had prepared his will, was “far more compelling.” The attorney
testified that when she and the decedent had discussed his POD
designations, he had mistakenly told her that he had designated
Owens as beneficiary of the accounts rather than Dominguez. The
court concluded that the attorney’s testimony demonstrated that
the decedent was “severely confused” regarding the nature and
effect of his POD designations such that he lacked testamentary
capacity to make such dispositions.
¶ 25 Finally, the court concluded:
[T]he Court infers from the confidential relationship Respondent had with the Decedent, the contradictions in Respondent’s testimony, and the other evidence submitted by Petitioner, that Respondent exerted undue influence on the Decedent and manipulated him into making the POD designations.
The court’s conclusion, based on the evidence presented, echoed
the principles of Krueger, 205 P.3d at 1156.
¶ 26 Dominguez nevertheless asserts that the court’s findings were
inconsistent because Dominguez presented ten witnesses with
12 unrefuted evidence in her favor and the court used the same
evidence to overturn the POD designations but uphold the will.
However, the court explained that it had relied on different evidence
in analyzing the will and the POD designations. Specifically, the
court noted that “unlike the POD designations, the Decedent was
represented by an attorney when he signed the will.”
¶ 27 Based on the above findings, we conclude that the record
supports the court’s factual findings and its assessment of the
credibility of each witness. Accordingly, we do not displace its
conclusions. Target Corp., ¶ 24, 351 P.3d at 499.
IV. Right to Jury Trial
¶ 28 Dominguez next asserts that the district court erred when it
prevented her from exercising her right to a jury trial. We disagree.
¶ 29 After the June 2015 evidentiary hearing and before any
postjudgment motions were filed, Dominguez’s counsel filed a
motion to withdraw, which the court granted. Dominguez filed a
pro se motion for an extension of time to retain counsel to file
postjudgment motions. The court denied this motion. Dominguez
then filed pro se motions to set aside the judgment and to
reconsider the judgment. Both motions asserted that she was
13 entitled to a jury trial. The court denied her motions and denied
her requests for a jury trial.
¶ 30 Owens asserts that Dominguez’s claims regarding her right to
a jury trial were unpreserved for appellate review since she made
such requests after the trial court’s judgment and thus waived her
right to a trial by jury. We conclude that because Dominguez had
the opportunity to exercise her right to a jury trial and failed to do
so, she has waived her claims to such a right.
¶ 31 We review the construction of statutes de novo. Lobato v.
Indus. Claim Appeals Office, 105 P.3d 220, 223 (Colo. 2005). When
interpreting a statute, we must determine and give effect to the
General Assembly’s intent. Davison v. Indus. Claim Appeals Office,
84 P.3d 1023, 1029 (Colo. 2004). If the statutory language is clear,
we interpret the statute according to its plain and ordinary
meaning. Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo.
2010).
¶ 32 The Colorado Rules of Probate Procedure are subject to the
principles of statutory construction. People v. Zhuk, 239 P.3d 437,
438-39 (“We interpret rules of procedure consistent with principles
14 of statutory construction.”). We construe them de novo. Maslak v.
Town of Vail, 2015 COA 2, ¶ 10, 345 P.3d 972, 975.
¶ 33 Pursuant to Krueger, “whether the opponent’s evidence meets
the burden [of rebutting the presumption of undue influence] is a
question of legal sufficiency for the trial court, not a question of fact
for the jury.” 205 P.3d at 1154 (holding that “this general rule
holds true for the rebuttable presumptions of undue influence and
unfairness”). “[I]f the presumption’s opponent does offer evidence
legally sufficient to meet the burden of going forward . . . [then] the
fact remains disputed, to be determined by the jury.” Id. at 1156.
¶ 34 Pursuant to C.R.P.P. 25, “[i]f a jury trial is authorized by law,
any demand therefor shall be filed with the court, and the
appropriate fee paid, before the matter is first set for trial. Failure
to make such a demand constitutes a waiver of trial by jury.”
¶ 35 Referencing Krueger, Dominguez contends that she asserted
her right to a jury in a pro se motion as soon as the issue became
ripe to be heard by a jury — when the court determined that she
had met her evidentiary burden of going forward regarding the issue
15 of undue influence and testamentary capacity. Dominguez bases
this argument on language in Krueger referring to disputed facts “to
be determined by the jury.” 205 P.3d at 1156. However, the issue
was ripe to be heard by a jury when the issue of whether
Dominguez had exercised undue influence was set for a hearing in
June 2015. The court followed the legal principles set forth in
Krueger, heard disputed testimony, determined whether Dominguez
had satisfied her burden of proof, and concluded that Dominguez
had exerted undue influence over the decedent and manipulated
him into making the POD designations when he lacked
testamentary capacity to do so. Dominguez should have requested
a jury trial beforehand; by failing to do so, she waived her claim to
that right.
¶ 36 Dominguez’s attorney, who represented her before and during
the hearing in June 2015, should have known that her opportunity
to request a jury trial ripened prior to that hearing. In her
postjudgment motions, Dominguez requested a jury trial but made
no claim that she was unaware of her right to a jury trial. In any
case, such argument would have been irrelevant, since the attorney
that represented her at the bench trial did not make a jury request
16 prior to the trial. Nothing prevented Dominguez from asserting her
right to a jury trial at that time.
¶ 37 Accordingly, we conclude the district court did not prevent
Dominguez from exercising her right to a jury trial; therefore, it did
not err in denying her belated request for one.
V. Contempt
¶ 38 Dominguez contends that the district court erred in
concluding that the existence of nonliquid assets can be the basis
for determining that a contemnor has the present ability to pay.
Owens responds that Dominguez’s release from jail in April 2016
after serving only three months, with work release, of her six-month
contempt sentence renders the contempt issue moot. We agree
with Dominguez that the claim is not moot, but we also disagree
with her contention of error.
¶ 39 Whether Dominguez had the duty and the ability to pay is a
mixed question of law and fact. Where there is a mixed question of
law and fact, we review to the trial court’s factual findings for clear
error, but independently review questions of law. See E-470 Public
Hwy. Auth. V. 455 Co., 3 P.3d 18, 22 (Colo. 2000). A finding of
17 contempt is within the discretion of the trial court and “will not be
reversed absent an abuse of discretion.” In re Estate of Elliott, 993
P.2d 474, 478 (Colo. 2000). The imposition of remedial sanctions
for contempt is governed by C.R.C.P. 107(d)(2).
¶ 40 Ordinarily, we will not “render opinions on the merits of an
appeal when the issues have become moot.” Johnson v. Griffin, 240
P.3d 404, 406 (Colo. App. 2009). “An issue becomes moot when the
relief granted by the court would not have a practical effect upon an
existing controversy,” Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d
1095, 1102 (Colo. 1998), or when prospective relief is unnecessary
to remedy an existing controversy or prevent its recurrence. State
Bd. of Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 971 (Colo.
1997).
¶ 41 Remedial contempt, at issue in this case, applies only to those
individuals who have a duty and an ability to comply but refuse to
do so. See In re Marriage of Nussbeck, 974 P.2d 493, 498 (Colo.
1999) (citing C.R.C.P. 107(d)(2)). Pursuant to C.R.C.P. 107(d), to
“justify punishment for this civil contempt consisting in a refusal to
perform a required act for the benefit of others, the trial court must
18 upon hearing make a finding both of the facts constituting
contempt and of the present duty and ability to perform.” Marshall
v. Marshall, 191 Colo. 165, 167, 551 P.2d 709, 710 (1976) (citing
People in Interest of Murley, 124 Colo. 581, 239 P.2d 706 (1951)).
Thus, before imposing remedial contempt, the court is required to
find a duty and a present ability to pay. C.R.C.P. 107(d)(2).
However, “[t]he burden of proving a present inability to perform
rests with the contemnor.” Elliott, 993 P.2d at 479.
¶ 42 We first address Owens’ contention that Dominguez’s
contempt claim is moot now that she has been released from jail.
¶ 43 After the district court issued the final judgment, it held a
hearing regarding the $140,000 in the State Farm Bank account
and issued a contempt order. There, the court sentenced
Dominguez to six months of jail with the condition that she could
purge the contempt by making monthly $50,000 payments until
she paid $140,000. The court warned Dominguez that if she failed
to make any of these monthly payments, she would be rejailed. The
risk of reincarceration only related to Dominguez’s failure to pay
pursuant to the contempt order. Even though Dominguez was
19 released from her sentence three months early, it is not clear from
the record whether Dominguez has made all the payments
pursuant to the contempt proceedings.1 Thus, because Dominguez
could again be held in contempt we conclude the issue is not moot.
¶ 44 Nevertheless, we disagree with her contentions of error. As
stated above, the contemnor has “the burden of proving a present
inability to perform” in order to overcome a finding of remedial
contempt. Id. Here, the district court found that Dominguez had
not met that burden.
¶ 45 In its sentencing order, the district court made extensive
findings of fact constituting Dominguez’s contempt and her ability
to pay back the funds she took in violation of the court’s orders
establishing constructive trusts over the POD accounts. First, the
court found that, by operation of the constructive trust imposed on
the POD accounts, Dominguez was prohibited from disposing of
those funds. Specifically, Dominguez had a court-ordered duty not
to remove the $140,000 that remained in the State Farm Bank
1 Owens’ counsel stated at oral argument that the payments had not been made, and Dominguez’s counsel did not disagree with that statement.
20 account. This money was no longer in the account at the close of
the hearing on Owens’ petition to determine testacy.
¶ 46 At the contempt hearing, the court noted that Dominguez “has
informed the Court or told the Court a variety of different versions
of where this money has gone.” It continued:
When she was asked to put the money, put a certain sum into the court registry, she indicated she did not have that sum, that it had been spent. She gave a variety of different ways it had been spent, but then recalled that she had the funds at home. And she was able to deposit it in the court registry. . . . Ms. Dominguez has provided the Court with so many versions of where these large sums of money have gone that the Court can no longer find that Ms. Dominguez has any credibility with reference to the sourcing of these funds.
....
And the Court has made findings that Ms. Dominguez has the absolute ability to pay. She has affirmatively told the Court, if the Court were to believe Ms. Dominguez, that she can sell property in Mexico, it is hers to sell, and she can supply that to the Court. Again, I emphasize when she was to deposit a large sum of money into the court registry and she told the Court she did not have the money, I believe within the next at least couple of days, she was able to find the money. My recollection is she found it at home and she was able to deposit that sum in the court registry.
21 ¶ 47 Thus, the court concluded that Dominguez could not provide a
coherent, consistent account of what had happened to the funds in
the POD accounts and that it had provided multiple continuances
to Dominguez to resolve the nonpayment issues. Thus, the court
relied on evidence in the record to conclude not only that
Dominguez had a duty but also that she had not met her burden of
proof regarding her inability to pay. Unlike the contemnor in Elliott,
where the contemnor’s attorney “filed an accounting, detailing how
[the contemnor] expended the estate assets,” id. at 480, Dominguez
did not “sufficiently explain[] how” the missing funds had been
disbursed. Id. at 479. The court’s contempt order was supported
by analysis of the evidence in the record; as a result, we will not
displace it. See id. at 479-80 (Such findings by a trial court “shall
not be set aside unless clearly erroneous.”) (citations omitted).
¶ 48 Accordingly, we conclude that the district court did not err in
holding Dominguez in contempt.
VI. Attorney Fees
¶ 49 Finally, both parties seek attorney fees. Dominguez asserts
that she is entitled to attorney fees pursuant to C.R.C.P. 12(b)(5)
22 and section 13-17-201, C.R.S. 2016, because the district court
should have dismissed Owens’ claim for lack of standing.2 Owens
also asserts that he is entitled to attorney fees pursuant to section
13-17-102, C.R.S. 2016, as well as C.A.R. 38(b) because
Dominguez’s claims are groundless, frivolous, and vexatious. We
conclude that neither party is entitled to an award of attorney fees.
A. Applicable Law
¶ 50 Under section 13-17-102, an award of attorney fees turns on
whether a claim “lacked substantial justification” — in other words,
whether it was “substantially frivolous, substantially groundless, or
substantially vexatious.” § 13-17-102(4). We will not award
attorney fees where a genuinely disputed issue exists and a party
presents a rational argument based on the evidence and the law.
See First Colo. Bank & Tr., N.A. v. Plantation Inn, Ltd., 767 P.2d 812,
814 (Colo. App. 1988). A losing position is not necessarily
groundless for purposes of awarding attorney fees, nor is a claim
groundless solely because the plaintiff failed to establish a prima
facie case if there is some credible evidence to support the claim.
2 Owens did not request attorney fees under C.R.C.P. 107(d)(2) in the trial court for the contempt proceedings.
23 See, e.g., Colo. Supply Co. v. Stewart, 797 P.2d 1303, 1307 (Colo.
App. 1990).
¶ 51 Section 13-17-201 applies to C.R.C.P. 12(b) dismissals of “all
actions brought as a result of a death or an injury to person or
property occasioned by the tort of any other person.” § 13-17-201;
see also Castro v. Lintz, 2014 COA 91, ¶ 12, 338 P.3d 1063, 1067.
An award of attorney fees under section 13-17-201 is mandatory
when a trial court dismisses a tort action under C.R.C.P. 12(b).
Castro, ¶ 12, 338 P.3d at 1067.
B. Analysis
¶ 52 We first conclude that Dominguez incorrectly relies on section
13-17-201, since it is limited to Rule 12(b) dismissals of tort
actions.
¶ 53 We next conclude that neither Owens nor Dominguez is
entitled to an award of attorney fees pursuant to section 13-17-102.
Both parties presented rational arguments based on evidence and
the law in regard to genuinely disputed issues. Their claims were
not groundless because they both presented some credible evidence
to support their claims. Therefore, we conclude that neither party
24 is entitled to attorney fees. In any event, Dominguez is not entitled
to attorney fees because she has not prevailed on appeal.
VII. Conclusion
¶ 54 Accordingly, the judgments are affirmed.
JUDGE GRAHAM and JUDGE NAVARRO concur.