Interest of Green

• Court: Colorado Court of Appeals
• Decided: August 22, 2024
• Docket: 23CA1874
• Status: Unknown

Opinion

23CA1874 Interest of Green 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1874

Weld County District Court No. 22PR30540

Honorable Julie C. Hoskins, Judge

In the Interest of,

Roberta Louise Green, Protected Person/Ward,

Anne B. Jorgensen, Jorgensen, Brownell & Pepin, P.C.,

Appellant,

v.

Roberta Louise Green,

Appellee.

ORDERS AFFIRMED

Division II

Opinion by JUDGE FOX

Grove and Sullivan, JJ., concur

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

Announced August 22, 2024

Jorgensen, Brownell & Pepin, P.C., Anne B. Jorgenson, Loveland, Colorado, for

Appellant

Anne Whalen Gill, L.L.C., Anne Whalen Gill, Castle Rock, Colorado, for

Appellee

1

¶ 1 Anne B. Jorgensen, of Jorgensen, Brownell & Pepin, P.C.,

appeals the district court’s orders denying her request for

compensation and costs pursuant to probate code section 15-10-

602(7)(b), C.R.S. 2023. We affirm the district court.

I. Background

¶ 2 This appeal arises from an acrimonious dispute over the

appointment of a guardian ad litem (GAL), conservators, and

guardians for Roberta Louise Green, initiated by her daughter

Leanna Green

1

on September 13, 2022. Leanna first nominated

herself to be Roberta’s conservator, but the district court rejected

this request. Instead, after a hearing on May 4, 2023, the district

court adopted a stipulated agreement between Roberta (through her

counsel), Roberta’s GAL, Leanna, and Roberta’s husband, John

Green. The district court appointed John and Lisa LeFehr, a

private guardian, to serve as co-guardians for Roberta and

1

Because of their shared last name, we respectfully refer to Roberta

Green, Leanna Green, and Roberta’s husband, John Green, by their

first names in this opinion. The record interchangeably spells

Leanna’s name as “Leanna” and “Le Anna.”

2

appointed Patrick Groom and Kent Naughton

2

of the Weld County

Public Administrator’s Office to serve as conservators for her estate.

¶ 3 This appeal is limited to a review of the district court’s orders

denying Leanna, through her counsel, Jorgensen, compensation

and costs under section 15-10-602(7)(b). Leanna first submitted a

motion for compensation on June 8, 2023, after the district court

appointed Roberta’s conservators and guardians. She argued that,

because “[t]he appointment of such agents and legal representatives

are by their very nature beneficial to the ward and/or protected

person and her Estate,” she was entitled to reasonable

compensation for these efforts.

¶ 4 The district court rejected the motion on two grounds. It

noted that while “Leanna Green did assist and support the ultimate

resolution of the appointment of Conservator and Co-Guardians for

her mother, Roberta Green . . . the court cannot find this was

primarily her doing.” Because “the resolution in this matter was

2

Kent Naughton was added as a conservator because the original

understanding was that Naughton, as a Deputy Public

Administrator under Public Administrator Patrick Groom, had the

authority to act on Groom’s behalf. Naughton testified that having

both of their names listed as conservators made his work easier,

however, so he was added with the consent of the parties.

3

due to the very difficult and hard work of many persons, and not

solely the primary work of Leanna Green,” the court rejected her

request for compensation. Additionally, the district court noted

that Roberta was indigent, so “[t]here simply are no funds available

to grant the relief requested.”

¶ 5 Leanna later moved for reconsideration of the district court’s

order. Leanna argued that the district court misapplied the statute

and improperly considered factors detailed in sections 15-10-603(3)

and -602(7)(c), C.R.S. 2023 — factors relevant to the

reasonableness of the requested compensation — in addressing the

propriety of compensation. According to Leanna, it was improper

for the district court to conclude, in effect, that the parties’

collaboration precluded awarding the requested compensation.

Leanna also argued that the district court did not hold a required

hearing pursuant to section 15-10-604(4), C.R.S. 2023. Finally,

Leanna claimed that the district court relied on incorrect facts by

misstating the case’s procedural history, incorrectly finding that

Roberta had no means to pay the request when she in fact had a

one-third interest in her farm, and failed to consider Leanna’s role

4

in the subsequent appointment of Roberta’s GAL, conservators, and

guardians.

3

¶ 6 On September 14, 2023, the district court again rejected the

request. The court noted that it could not find that “the services

provided by Leanna Green by and through her counsel . . . resulted

in the Stipulation reached by the parties.” It found that “[c]ertainly,

some services contributed to the stipulation. However, many other

actions increased the costs in this case, including the responses to

pro se pleadings which did not provide any legal bases for relief.”

The district court also found that Leanna “through her own actions

and requests for relief created conflict which, although, ultimately

resolved . . . required the expenditure of more funds.” Finally, the

district court reiterated that Roberta was indigent, and while she

may have funds in the future, “she has not had funds available

throughout these proceedings or currently.”

¶ 7 This appeal soon followed, raising the arguments the motion

for reconsideration advanced — though Jorgensen, no longer

representing Leanna, appeals on her and her firm’s behalf.

3

On August 3, 2023, Jorgensen and Jorgensen, Brownell & Pepin,

P.C., withdrew as Leanna’s attorneys of record.

5

Jorgensen preserved these issues in the motions for compensation

and for reconsideration. See Gebert v. Sears, Roebuck & Co., 2023

COA 107, ¶ 25.

II. Standard of Review and Standing

¶ 8 “We review the trial court’s legal conclusions de novo but defer

to the court’s findings of fact when they are supported by the

record.” In re Estate of Treviño, 2020 COA 125, ¶ 13. “We review a

court’s application of procedural rules de novo. And to the extent

our analysis requires us to interpret the probate code, statutory

interpretation is a question of law that we review de novo.” In re

Estate of Gonzalez, 2024 COA 63, ¶ 24 (citations omitted). We may

affirm the district court on any ground supported by the record.

See Laleh v. Johnson, 2017 CO 93, ¶ 24.

¶ 9 We first conclude that Jorgensen has standing to appeal the

district court’s orders. As the Colorado Supreme Court has

explained, “an individual or entity who was not a party to a lower

court proceeding must demonstrate standing to appeal that

decision . . . [but] may appeal a lower court’s decision if the party

has been injured by the disposition of the case.” Arapahoe Cnty.

Dep’t of Hum. Servs. v. People in Interest of D.Z.B., 2019 CO 4, ¶ 8.

6

But a non-party must specifically show they suffered a “substantial

grievance,” a fact-specific determination, which “exists when the

lower court’s decision denies a non-party some claim of right or

imposes upon it a substantial burden or obligation.” Id. at ¶¶ 8, 12.

¶ 10 Here, section 15-10-602(7)(b) explicitly provides that “the

lawyer or other person not appointed by the court may receive costs

and reasonable compensation” if they meet the statutory criteria.

(Emphasis added.) Therefore, a lawyer who is denied compensation

for her services, even if not a party at the district court level, may

appeal an order denying this compensation. See Arapahoe Cnty.,

¶ 8.

III. Applicable Law

¶ 11 Section 15-10-602(7)(b) of the probate code provides that “[i]f a

lawyer or another person not appointed by the court provides

services that result in an order beneficial to the estate, respondent,

ward, or protected person, the lawyer or other person not appointed

by the court may receive costs and reasonable compensation from

the estate.” This is an exception to the default rule that a

“nonfiduciary or his or her lawyer is not entitled to receive

compensation from an estate.” § 15-10-602(7)(a).

7

¶ 12 The district court has discretion to determine if a requesting

party provided a compensable benefit to an estate. See § 15-10-

602(7)(b)(II) (the district court must “determine, without a hearing,

the benefit, if any, that the estate received from the services

provided”) (emphasis added); § 15-10-602(7)(b)(III) (after a party

requests compensation, a court need only hold a hearing to

determine the reasonableness of the compensation “[i]f the court

determines that a compensable benefit resulted from the services”).

Such services include those that are “significant, demonstrable, and

generally noncumulative services that assist the court in resolving

material issues in the administration of an estate.” § 15-10-

602(7)(d).

¶ 13 This may include efforts that “result in significantly increasing

or preventing a significant decrease in the size of the estate,

preventing or exposing maladministration or a material breach of

fiduciary duty, or clarifying and upholding a decedent’s, settlor’s,

principal’s, respondent’s, ward’s, or protected person’s intent with

respect to a material issue in dispute.” Id.

¶ 14 At issue here is the district court’s determination of whether

Leanna, through Jorgenson’s representation, provided a

8

compensable benefit to Roberta’s estate. Jorgensen contends that

the district court erred by considering factors relevant to the

reasonableness of the requested compensation — namely, the

number of parties involved, and the nature, size, and liquidity of the

estate — while misinterpreting the relevant facts.

¶ 15 Because the record supports the district court’s determination,

see Gonzalez, ¶ 24, and a hearing was not required, see § 15-10-

602(7)(b)(IV); § 15-10-604, we affirm the district court’s orders.

IV. Analysis

A. Section 15-10-602(7)(b) Allows a District Court to Consider the

Factors in Sections 15-10-602(7)(c) and -603(3)

¶ 16 The district court may consider the nature, size, and liquidity

of an estate, § 15-10-603(3)(d), and the number of parties involved

in a property matter, § 15-10-602(7)(c)(II), when determining

whether a party has conferred a benefit to an estate that warrants

compensation. Indeed, section 15-10-602(7)(b)(III)’s mention that

the district court must determine if a party provided a “compensable

benefit”

4

indicates that the district court should consider the

4

Black’s Law Dictionary defines compensable as “[c]apable of being

or entitled to be compensated for.” Black’s Law Dictionary 356

(12th ed. 2024).

9

nature, size, and liquidity of an estate at this stage. (Emphasis

added.) If an estate has no assets, it is necessarily incapable of

compensating a party for any benefit, regardless of that party’s

efforts.

¶ 17 Similarly, the court may consider the number of parties

involved in the probate action. Section 15-10-602(7)(d) details that

compensable services include those that are “significant,

demonstrable, and generally noncumulative services that assist the

court in resolving material issues in the administration of an

estate.” Individual efforts, when considered in the context of

contributions by multiple parties, could be so insignificant or

immaterial that no compensable benefit exists.

¶ 18 If the district court could never consider these factors, or any

other considerations besides whether a party helped resolve a

probate dispute in some manner — no matter how small their

efforts — it would unduly interfere with the district court’s

threshold obligations under section 15-10-602(7)(b)(II) and (III). The

probate code grants the district court broad discretion to determine

whether a party provided compensable benefits to an estate. See

§ 15-10-602(7)(d) (identifying factors “[b]y way of example and not

10

limitation” that the court may consider when determining whether

services conferred a benefit); see also Skyland Metro. Dist. v.

Mountain W. Enter., LLC, 184 P.3d 106, 117 (Colo. App. 2007)

(Statutes should be construed “in a manner giving consistent,

harmonious, and sensible effect to all its parts. . . . [A] court

should not interpret a statute in ways that defeat the legislature’s

obvious intent or render part of the statute either meaningless or

absurd.”) (citations omitted); Est. of Breeden v. Gelfond, 87 P.3d

167, 175 (Colo. App. 2003) (“In general, absent a specific

prohibition, the trial court has discretion over the award of costs.”);

Nguyen v. Reg’l Transp. Dist., 987 P.2d 933, 936 (Colo. App. 1999)

(“Generally, a trial court has broad discretion in awarding costs and

its decision will not be overturned on appeal absent an abuse of

that discretion.”).

¶ 19 Moreover, even if the factors identified in section 15-10-

602(7)(c) could not be considered by the court when determining

whether a compensable benefit was conferred, reversal is still not

required. The district court found that the case’s “ultimate

resolution” was not “primarily” the result of Leanna’s efforts but

rather “due to the very difficult and hard work of many persons.” In

11

other words, the district court determined that Leanna’s efforts did

not amount to “significant” and “generally noncumulative services”

that assisted the court in resolving the material issues before it —

criteria that must be met under section 15-10-602(7)(d) before the

court can find that a person’s services conferred a benefit.

B. The Record Supports the District Court’s Determination

¶ 20 Jorgensen points to three factual issues as grounds to reverse

the district court’s orders. Jorgensen argues that the district court

(1) mistakenly stated that Leanna requested to be Roberta’s

guardian; (2) failed to consider Roberta’s one-third interest in her

farm when concluding that Roberta was indigent; and (3) failed to

consider the benefits of her efforts leading to the appointment of the

GAL, guardians, and conservators for Roberta.

¶ 21 To the extent the court misstated the case’s procedural

history — by suggesting that Leanna wanted to serve as a guardian

rather than a conservator — such a misstatement is harmless

because it did not affect Leanna’s or Jorgensen’s substantial rights.

C.R.C.P. 61; see also Mendy Brockman Disability Tr. v. Colo. Dep’t of

Health Care Pol’y & Fin., 2022 COA 75, ¶ 45 (“[W]e reverse only if

the error resulted in substantial prejudice to a party. An error is

12

harmless if the court reached the correct outcome.”) (citation

omitted).

¶ 22 Next, the record supports the district court’s determination

that Roberta lacked funds to compensate Jorgensen. Jorgensen

confirmed in a hearing that, beyond the few hundred dollars a

month Roberta made from social security, she was unaware of any

other sources of income to dispute the court’s indigency finding.

¶ 23 Furthermore, the district court was aware that Roberta

claimed a one-third joint tenancy property interest in her farm. But

the court was also aware that the farm was the subject of an active

dispute over whether Leanna was properly listed on the deed along

with Roberta, and how this would affect Roberta’s Medicaid

coverage. It is not unreasonable to conclude that this one-third

property interest — held in joint tenancy at the time and the subject

of an active property dispute — was unavailable as a source of

liquid funds to compensate Jorgensen. As the district court’s

second order so recognized, “While Respondent at some point in the

future may have funds, she has not had funds available throughout

these proceedings or currently.” Accordingly, the record supports

13

the district court’s refusal to rely on Roberta’s illiquid assets to

compensate Jorgenson.

¶ 24 Finally, the district court did recognize that Leanna and

Jorgensen’s efforts contributed to the ultimate appointment of the

GAL, conservators, and guardians for Roberta. It simply found that

those efforts did not rise to the level of a compensable benefit, and

the record supports this finding.

¶ 25 The stipulation was the result of months of effort by Leanna

and Roberta, through their respective counsel, Roberta’s GAL, and

John. And, contrary to Jorgensen’s contentions, refusing to award

her compensation does not discourage civil settlements or

improperly conclude that collaboration amongst the parties in an

estate dispute precludes an award.

¶ 26 The district court’s order effectively recognized that there is

nothing particularly significant about Leanna, via Jorgensen, filing

the initial conservatorship petition or first nominating a conservator

or guardian ahead of the stipulated agreement. See § 15-10-

602(7)(d) (compensable services includes those that are “significant”

and “generally noncumulative”). The ultimate resolution of the case

resulted from sustained efforts among all involved parties, each of

14

whom represented their own various interests. It was not an abuse

of discretion for the district court to conclude, as it did here, that

when multiple parties are involved, one party’s contributions may

not be significant enough to warrant compensation under section

15-10-602(7)(d).

¶ 27 Because the district court’s factual findings have record

support, or are harmless if incorrect, we defer to them. See Treviño,

¶ 13. Thus, the district court did not abuse its discretion and the

challenged orders do not warrant reversal.

C. The District Court Was Not Required to Hold a Hearing on the

Request for Compensation

¶ 28 Next, Jorgensen contends that the district court erred by

failing to hold a hearing on the reasonableness of her requested

compensation pursuant to sections 15-10-602(7)(b)(IV) and -604.

5

¶ 29 Because we affirm the district court’s finding that Leanna and

Jorgensen did not confer a compensable benefit upon Roberta’s

estate, the district court was not required to hold a hearing. See

5

While Jorgensen did not fully comply with the preservation

requirements of C.A.R. 28(a)(7)(A) on this issue, “the deficiencies in

her [opening] brief do not hamper our ability to conduct a

meaningful appellate review.” In re Parental Responsibilities

Concerning D.P.G., 2020 COA 115, ¶ 14.

15

§ 15-10-602(7)(b)(II)-(III). After Jorgensen requested compensation,

the district court was only required to “determine, without a

hearing, the benefit, if any, that the estate received.”

§ 15-10-602(7)(b)(II) (emphasis added). The district court found

that there was no compensable benefit, so Jorgensen was not

entitled to a hearing. See § 15-10-602(7)(b)(II).

D. Jorgensen is Not Entitled to Appellate Attorney Fees and Costs

¶ 30 Lastly, without factual support or legal argument, Jorgensen

requests an award of her costs and appellate attorney fees pursuant

to C.A.R. 39 and 39.1. Because we affirm the district court,

however, any “costs are taxed against the appellant.” C.A.R.

39(a)(2); see also Cikraji v. Snowberger, 2015 COA 66, ¶¶ 22-23

(where appellant’s claims on appeal were partially dismissed with

prejudice and otherwise the judgment is affirmed, “under C.A.R.

39(a), appellant will be responsible for the costs . . . on appeal”).

¶ 31 Furthermore, because Jorgensen requests appellate attorney

fees pursuant to Rule 39.1 without legal or factual supporting

arguments, she is not entitled to attorney fees. C.A.R. 39.1 (“[T]he

principal brief of the party claiming attorney fees must include a

specific request, and explain the legal and factual basis, for an

16

award of attorney fees. Mere citation to this rule or to a statute,

without more, does not satisfy the legal basis requirement.”)

(emphasis added); see also In re Marriage of Schlundt, 2021 COA 58,

¶ 53.

V. Disposition

¶ 32 We affirm the district court’s orders.

JUDGE GROVE and JUDGE SULLIVAN concur.