The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY December 13, 2018
2018COA173
No. 16CA2024 & 17CA1154 Lees v. James — Attorney Fees — Tort Actions Dismissed Pursuant to C.R.C.P. 12(b) — Joint and Several Fee Awards
A division of the court of appeals considers whether a trial
court that is granting attorney fees pursuant to section 13-17-201,
C.R.S. 2018, may order that the plaintiff’s attorney be jointly and
severally liable for such fees. The division concludes that the trial
court has such authority under section 13-17-102(3), C.R.S.
2018. This statutory authority creates a general rule that fee
awards under Article 17 of Title 13 may be joint and several, and is
not limited by its terms to awards related to claims or defenses
pursued without substantial justification under section 13-17-
102(2). Further, since the decision to impose the joint and several fee award in this case was not manifestly unfair, arbitrary, or
unreasonable, the trial court did not abuse its discretion.
The division also makes clear that a trial court may consider
unpublished opinions of the court of appeals to the extent the trial
court finds such opinions persuasive. Accordingly, the division
affirms the trial court’s judgment. COLORADO COURT OF APPEALS 2018COA173
Court of Appeals Nos. 16CA2024 & 17CA1154 Adams County District Court No. 16CV30739 Honorable F. Michael Goodbee, Judge
Louella Maxine Patterson,
Plaintiff-Appellant and Cross-Appellee,
and
Robert A. Lees,
Attorney-Appellant and Cross-Appellee,
v.
M. Tracy James,
Defendant-Appellee and Cross-Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE TOW Hawthorne and Bernard, JJ., concur
Announced December 13, 2018
Gill & Ledbetter, LLP, H. J. Ledbetter, Anne Whalen Gill, Castle Rock, Colorado, for Plaintiff-Appellant and Cross-Appellee
Robert A. Lees & Associates, Robert A. Lees, Greenwood Village, Colorado, for Attorney-Appellant and Cross-Appellee
Lewis Brisbois Bisgaard & Smith LLP, Nancy L. Cohen, Nicole Marie Black, Denver, Colorado, for Defendant-Appellee and Cross-Appellant ¶1 Upon granting a C.R.C.P. 12(b) motion to dismiss a tort action
in its entirety, a trial court is required to award attorney fees to the
defendant. § 13-17-201, C.R.S. 2018. When doing so, does the
court have the authority to order that judgment be joint and several
between the plaintiff and plaintiff’s counsel? For the first time in a
published decision, we answer that question yes. In doing so, we
also make clear that a trial court may consider unpublished
opinions of this court to the extent the trial court finds such
opinions persuasive.
I. Background
¶2 After her husband passed away, plaintiff, Louella Maxine
Patterson, felt that her husband’s adult children had engaged in
inappropriate conduct in pursuing certain actions related to her
husband’s estate. With the assistance of her attorney, Robert A.
Lees, Patterson filed a tort action against the children and an
attorney, M. Tracy James, who represented one of the children,
Elizabeth Danford, in seeking appointment as personal
representative of the estate. In this action, Patterson asserted
1 claims of elder abuse, outrageous conduct, nondisclosure or
concealment, false representation, and civil conspiracy.
¶3 The complaint levied numerous allegations against James:
that she drafted all or part of the legal documents and provided
legal advice to Danford and her brother; that neither the will, the
application for informal probate, nor the initial legal proceedings
filed by James accounted for Patterson’s elective share of
homestead rights as the decedent’s spouse or any other spousal
rights; that James failed to notify Patterson that probate
proceedings had been initiated; that James, Danford, and Danford’s
brother conspired and agreed to informal probate in an attempt to
“slip it through the probate legal process” unnoticed; that although
Patterson attempted to contact James and Danford with questions
regarding legal documents she received, she never received
follow-up contact; and that throughout these probate proceedings,
James continued to unreasonably bill the estate.
2 ¶4 James moved to dismiss these claims pursuant to Rule
12(b)(5), and the trial court granted the motion,1 finding that the
litigation shield and strict privity rule barred Patterson’s claims
against James. James then moved for attorney fees under sections
13-17-201 and 13-17-102(2), C.R.S. 2018. After a hearing, the trial
court awarded attorney fees and costs jointly and severally against
Patterson and her attorney Lees pursuant to section 13-17-201.
¶5 Citing section 13-17-102(2), James asserted that Patterson’s
and Lees’s defense of the fee request lacked substantial
justification. As a result, James requested additional attorney fees
incurred in pursuing the underlying fee request (sometimes referred
to as fees on fees). The trial court denied James’s request.
¶6 Patterson appeals the trial court’s order dismissing her claims
against James, and the order requiring her to pay James’s attorney
fees and costs. Lees appeals the trial court’s order that he be
jointly and severally liable for the fees and costs. James
cross-appeals the denial of her request for fees on fees.
1 In her response to the motion to dismiss, Patterson withdrew her claims of elder abuse and false representation.
3 II. Analysis
A. Leave to Amend the Complaint
¶7 Patterson and Lees both contend that instead of dismissing
Patterson’s complaint, the trial court should have permitted her to
amend it. However, this argument is not properly before us,
because Patterson never took any step to amend the complaint.
¶8 As a threshold issue, Patterson would not have needed leave of
the court to file an amended complaint, because no responsive
pleading had yet been filed. C.R.C.P. 15(a); see also Fladung v. City
of Boulder, 165 Colo. 244, 247, 438 P.2d 688, 690 (1968) (holding
that a motion to dismiss does not constitute a responsive pleading).
Therefore, while the motion to dismiss was pending and as long as
no answer had been filed, Patterson was entitled to file an amended
complaint without leave from the court. She did not do so.
¶9 Even if Patterson was required to seek leave to amend her
complaint, she failed to preserve this issue. Patterson and Lees
contend that this issue was preserved when Patterson requested to
amend her complaint in her response to James’s motion to strike
4 and her response to James’s motion to dismiss.2 However, “[a]
motion shall not be included in a response or reply to the original
motion.” C.R.C.P. 121, § 1-15(1)(d).
¶ 10 Here, Patterson mentioned in both responses that she should
be permitted to amend her complaint if the court determined that
the complaint was not clear. However, Patterson never explicitly
requested leave to amend her complaint in a separate motion.
Simply suggesting in other motions that Patterson would amend her
complaint if the court believed the complaint was unclear is not a
motion for leave to amend.
¶ 11 Furthermore, “it is incumbent on the moving party to see to it
that the court rules on the matter [s]he urges,” and if the party fails
to do so, she waives or abandons that argument on appeal.
Feldstein v. People, 159 Colo. 107, 111, 410 P.2d 188, 191
(1966), abrogated on other grounds by Deeds v. People, 747 P.2d
1266 (Colo. 1987); see also Silverman v. Univ. of Colo., 26 Colo. App.
2 Patterson and Lees also assert that this issue was preserved at other locations in the record; however, we see no such statements in the record as cited.
5 269, 280, 541 P.2d 93, 100 (1975) (applying a similar analysis in a
civil context), rev’d on other grounds, 192 Colo. 75, 555 P.2d 1155
(1976).
¶ 12 If Patterson believed that these aspirational statements were
properly viewed as motions for leave to amend her complaint, she
was obligated to urge the trial court to rule on the matter. Because
Patterson failed to do so, she waived this argument on appeal. We
therefore decline to address the contention further.
B. C.R.C.P. 12(b)(5) Motion to Dismiss
¶ 13 Lees and Patterson raise separate issues on appeal regarding
the trial court’s order granting James’s Rule 12(b)(5) motion to
dismiss. Lees contends that the trial court converted the motion to
dismiss to a C.R.C.P. 56 motion for summary judgment when it
considered matters outside the pleading, thus precluding attorney
fees under section 13-17-201.
¶ 14 Patterson contends that the trial court improperly dismissed
her claims against James by misapplying the litigation shield and
strict privity rule. Patterson also contends that the trial court
6 misapplied the pleading standard in ruling on James’s motion to
dismiss. We reject each of these contentions in turn.
1. Standard of Review
¶ 15 Lees states that his issue was preserved at the hearing on
attorney fees. Patterson states that her issue was preserved in a
hearing memorandum regarding the new Rule 12(b)(5) standard of
review and her response to the motion to dismiss. We agree that
both issues were preserved.
¶ 16 We review de novo a trial court’s ruling on a motion to dismiss.
Yadon v. Lowry, 126 P.3d 332, 335 (Colo. App. 2005). We apply the
same standards as the trial court, accepting all of the factual
allegations in the complaint as true and viewing those allegations in
the light most favorable to the plaintiff. Walker v. Van Laningham,
148 P.3d 391, 394 (Colo. App. 2006).
2. Conversion to a C.R.C.P. 56 Motion
¶ 17 On a motion to dismiss, if “matters outside the pleading are
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided
in C.R.C.P. 56.” C.R.C.P. 12(b). “However, if matters outside of the
7 complaint are submitted to the trial court, but not considered in
review of the [Rule] 12(b)(5) motion to dismiss, the trial court need
not convert the motion to dismiss into a motion for summary
judgment.” Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 386
(Colo. 2001).
¶ 18 Here, Lees contends that “matters outside the pleading” were
presented to the trial court when James and Patterson attached
exhibits to their motion to dismiss and response to the motion to
dismiss, respectively. However, there is no indication that the trial
court considered these exhibits in ruling on James’s motion to
dismiss. To the contrary, the trial court explicitly acknowledged in
its order that “the court may only consider matters stated within
the complaint itself, and may not consider information outside of
the confines of that pleading.” The trial court then itemized the
specific allegations in the complaint related to James’s conduct.
Accordingly, because there is no indication that the trial court
considered the extraneous material the parties had submitted, we
cannot conclude that the trial court converted the motion to
dismiss into a Rule 56 motion for summary judgment. The trial
8 court, therefore, was not precluded from awarding attorney fees
under section 13-17-201.
3. Litigation Shield
¶ 19 An attorney’s statements, even if defamatory, when made in
the course of, or in preparation for, judicial proceedings in a filed
case cannot be the basis of a tort claim if the statements are related
to the litigation. Begley v. Ireson, 2017 COA 3, ¶ 13 (citing
Buckhannon v. US W. Commc’ns, Inc., 928 P.2d 1331, 1335 (Colo.
App. 1996)). This litigation privilege exists to encourage and protect
free access to the courts for litigants and their attorneys. Id.
¶ 20 The privilege not only shields attorneys from defamation
claims arising from statements made in the course of litigation, but
also bars other nondefamation claims that stem from the same
conduct. Buckhannon, 928 P.2d at 1335. When the statements are
integral to the judicial process, the immunity provided is absolute.
Merrick v. Burns, Wall, Smith & Mueller, P.C., 43 P.3d 712, 714
(Colo. App. 2001). “It is necessary to consider the nature of the
duties performed and whether such duties are an essential and
integral part of the judicial process.” Id. The litigation privilege
9 therefore applies “regardless of the tort theory” invoked, if the basis
of the claim is a statement made in the course of litigation.
Buckhannon, 928 P.2d at 1335.
¶ 21 Here, Patterson’s claims against James arise from James’s
representation of the personal representative in the underlying
probate litigation. Patterson alleged that James drafted and filed
legal documents, provided legal advice on how to commence
informal probate proceedings, and communicated (or failed to
communicate) as counsel in the probate proceeding. Because all of
these statements were essential to the judicial process, namely the
representation of the personal representative in the probate
proceedings and drafting the necessary pleadings, the litigation
privilege applies, and James is thus entitled to absolute immunity
as a matter of law.
¶ 22 Though not a statement protected by the litigation shield, the
alleged failure to inform Patterson that probate proceedings had
commenced is not actionable. “[A]n attorney’s liability to a non-
client is limited to the narrow set of circumstances in which the
attorney has committed fraud or a malicious or tortious act,
10 including negligent misrepresentation.” Baker v. Wood, Ris &
Hames, Prof'l Corp., 2016 CO 5, ¶ 35. Dissatisfied beneficiaries of a
testator’s estate do not have standing to bring claims against the
attorney who drafted the testator’s estate planning documents. Id.
at ¶ 18.
4. Pleading Standard for a Motion to Dismiss
¶ 23 To survive summary dismissal for failure to state a claim
under Rule 12(b)(5), a party must plead sufficient facts that, if
taken as true, suggest plausible grounds to support a claim for
relief. Warne v. Hall, 2016 CO 50, ¶ 24 (adopting a heightened
standard of pleading in Colorado that requires a complaint to allege
plausible grounds for relief, not merely speculative grounds).
¶ 24 In Warne, the supreme court adopted this new standard over
the old standard requiring dismissal only if “the plaintiff can prove
no set of facts in support of a claim that would entitle the plaintiff
to relief.”3 Id. at ¶ 11. However, if a plaintiff has failed to state a
claim under the old standard, then the claim necessarily does not
3 Warne v. Hall, 2016 CO 50, was announced on June 27, 2016, four days after James filed her motion to dismiss.
11 survive the new test, because the plaintiff has failed to establish
any facts, much less plausible ones. See Semler v. Hellerstein, 2016
COA 143, ¶ 26, rev’d on other grounds sub nom. Bewley v. Semler,
2018 CO 79, ¶ 26.
¶ 25 Because we conclude that the trial court did not misapply the
litigation shield doctrine, Patterson’s claim would fail under either
Warne’s plausible grounds standard or the old “no set of facts”
pleading standard. Thus, we do not need to decide whether the
trial court misapplied the pleading standard.
C. Attorney Fees
¶ 26 Lees and Patterson also raise separate issues on appeal
regarding the trial court’s order granting attorney fees and costs
jointly and severally against them. Lees raises three issues
pertaining to this order: (1) the trial court erred in awarding
attorney fees jointly and severally under section 13-17-201; (2) the
trial court impermissibly violated the Colorado Court of Appeals’s
citation policy by basing its attorney fees order in part on an
unpublished Colorado Court of Appeals case; and (3) the trial court
erred in basing its award of attorney fees on improper evidence.
12 ¶ 27 Patterson contends that the trial court erred in awarding
attorney fees jointly and severally against an eighty-seven-year-old,
impoverished, unemployed, homeless widow who played no active
part in directing the litigation and who demonstrated no current,
nor future, ability to pay such fee.
¶ 28 On cross-appeal, James contends that the trial court erred in
failing to make factual findings when it ruled on James’s motion for
attorney fees and costs and declined to assess fees on fees under
section 13-17-102(2). We disagree with each of these contentions.
¶ 29 Lees and Patterson both state that their issues were preserved
in Patterson’s response to James’s request for a ruling on her
motion for attorney fees and costs. James states that her issue was
preserved in briefing in support of her request for attorney fees. We
agree that these issues were preserved.
¶ 30 We review the trial court’s decision to award attorney fees and
costs for an abuse of discretion, but we review the legal conclusions
which provide the basis for that decision de novo. Jorgensen v.
Colo. Rural Props., LLC, 226 P.3d 1255, 1259 (Colo. App. 2010). A
13 trial court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair. E-470 Pub. Highway Auth. v.
Revenig, 140 P.3d 227, 230 (Colo. App. 2006).
2. Joint and Several Liability
¶ 31 Our primary task when construing a statute is to give effect to
the General Assembly’s intent, which is determined first by looking
to the plain language of the statute. Bostelman v. People, 162 P.3d
686, 689-90 (Colo. 2007). We consider statutes as a whole in order
to effectuate legislative intent, and we give consistent, harmonious,
and sensible effect to all the statute’s parts. Colo. Dep’t of Revenue
v. Cray Computer Corp., 18 P.3d 1277, 1281 (Colo. 2001). However,
where “a literal interpretation of the statute . . . leads to an absurd
result,” the intent of the legislature will prevail. AviComm, Inc. v.
Colo. Pub. Utils. Comm’n, 955 P.2d 1023, 1031 (Colo. 1998).
¶ 32 Article 17 of Title 13 provides Colorado courts with the
authority to award attorney fees in certain circumstances. §§ 13-
17-101 to -304, C.R.S. 2018. The legislature has instructed courts
to “liberally construe the provisions of [the] article to effectuate
substantial justice . . . .” § 13-17-101, C.R.S. 2018.
14 ¶ 33 Section 13-17-102(1) bestows a general grant of authority on
any court of record to award reasonable attorney fees as part of a
judgment, provided such an award is not precluded elsewhere in
the article. A later subsection contains a similar general grant of
authority: “When a court determines that reasonable attorney fees
should be assessed, it shall allocate the payment thereof among the
offending attorneys and parties, jointly or severally, as it deems
most just, and may charge such amount, or portion thereof, to any
offending attorney or party.” § 13-17-102(3).
¶ 34 Section 13-17-102(2), in contrast, is a more specific rule that
requires the court to award fees against any attorney or party who
has brought or defended a civil action that the court determines
lacked substantial justification. Section 13-17-201 contains a
similar specific mandate, providing that where a tort action is
dismissed in its entirety pursuant to a Rule 12(b) motion, the
defendant “shall have judgment for his reasonable attorney fees in
defending the action.” The purpose of the latter provision is to
“discourage the institution or maintenance of unnecessary tort
claims.” US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205 P.3d 512,
15 518 (Colo. App. 2009) (citation omitted). There are two stark
differences between the provisions: (1) section 13-17-102(2) applies
regardless of when the matter is resolved, whereas section 13-17-
201 applies only if the case is dismissed pursuant to Rule 12(b);
and (2) section 13-17-102(2) requires a finding of lack of substantial
justification, whereas section 13-17-201 applies automatically,
without regard to whether the claims lacked justification.
¶ 35 Nothing in either of the specific mandates, however, exempts
the concurrent application of the general rule set forth in section
13-17-102(3). Nor does the text of section 13-17-102(3) limit its
application only to fee awards entered pursuant to section 13-17-
102. For these reasons, Lees’s statutory interpretation argument —
that had the legislature intended to include the authority to make
an award under section 13-17-201 joint and several, it would have
said so — must fail. The legislature did not need to grant the
specific authority for a joint and several award in section 13-17-
201, because it had already created the general authority to do so
in section 13-17-102(3).
16 ¶ 36 Moreover, interpreting the statute in the manner urged by
Lees could lead to an absurd result. In this case, for example, in
light of the complexity of the legal issues presented and Patterson’s
deferential nature, the trial court found that Lees had appeared to
make the critical legal decisions in this case. As the trial court
aptly noted, it would be difficult to contemplate the deterrent effect
intended by the legislature were fees to be awarded solely against
Patterson. Rather, by generally authorizing joint and several fee
awards under Article 17, the legislature enables the court to
“effectuate substantial justice.” § 13-17-101.
¶ 37 Nor do we discern any abuse of discretion by the trial court in
its decision to enter the fee judgment jointly and severally. In
exercising this authority, a trial court should allocate sanctions
between the attorney and the client according to their relative
degrees of responsibility for the violation of the act. Anderson
Boneless Beef, Inc. v. Sunshine Health Care Ctr., Inc., 878 P.2d 98,
101 (Colo. App. 1994). The record amply supports the trial court’s
conclusion that Lees was the driving force behind the strategic
decisions. As to Patterson, the trial court explicitly acknowledged
17 that it was required to consider the factors set forth in section 13-
17-103, C.R.S. 2018. While the trial court appropriately considered
Patterson’s age and limited resources, it also acknowledged the
statutory goal of deterrence of unnecessary tort litigation. In view of
the trial court’s findings, which find ample support in the record,
we cannot conclude that the trial court’s decision to impose joint
and several liability was manifestly arbitrary, unreasonable, or
unfair.
3. Reliance on Unpublished Case
¶ 38 Lees also argues that the trial court erred when it considered
an unpublished court of appeals opinion that James provided to the
court. He argues that both counsel’s citation to an unpublished
opinion and the trial court’s consideration of that case for its
persuasive impact run afoul of the court of appeals’s “Policy
Concerning Citation of Unpublished Opinions.” This policy provides
that “citation of unpublished opinions is forbidden, with the
following exceptions: (1) [u]npublished opinions may be cited to
explain the case history or to establish the doctrines of law of the
case, res judicata, or collateral estoppel.” Colorado Court of
18 Appeals, Citation Policies, Policy Concerning Citation of Unpublished
Opinions (2018), https://perma.cc/5GTB-QMA5. Lees
misunderstands the reach of that policy.
¶ 39 The Colorado Supreme Court exercises administrative
authority over the courts of this state. See, e.g., § 13-2-108, C.R.S.
2018 (addressing the supreme court’s authority to promulgate rules
of civil procedure); § 13-2-109, C.R.S. 2018 (addressing the
supreme court’s authority to promulgate rules of criminal
procedure); § 13-2-110, C.R.S. 2018 (addressing the supreme
court’s power to institute rules of practice and prescribe forms of
process to be used). The Colorado Court of Appeals has no such
authority. See §§ 13-4-101 to -113, C.R.S. 2018.
¶ 40 Exercising its administrative authority, the supreme court has
promulgated the Colorado Appellate Rules, including C.A.R. 35(f)
which addresses unpublished opinions of the court of appeals.
C.A.R. 35(e) makes clear that published opinions are binding
precedent for “all lower court judges,” but our supreme court has
made it equally clear that unpublished opinions “have no value as
precedent,” Welby Gardens v. Adams Cty. Bd. of Equalization, 71
19 P.3d 992, 999 (Colo. 2003). But C.A.R. 35(f) does not prohibit
parties from citing an unpublished decision in a trial court, and the
court of appeals’s policy merely addresses the use of unpublished
opinions in briefs filed with, and in arguments presented to, the
court of appeals. Consequently, the trial court did not err when it
considered the unpublished decision for whatever persuasive value
it may have had.
¶ 41 That being said, we do not mean to suggest that a trial court
must consider such decisions at all. We simply acknowledge that
unpublished does not mean confidential, and that our unpublished
opinions are routinely shared among, for example, certain practice
groups and specialty bars. As a result, it is not uncommon for trial
courts to be asked to consider such an opinion. Because C.A.R.
35(e) does not endow unpublished opinions with precedential
weight, however, a trial court remains free to disregard them
entirely if it so chooses.
¶ 42 We also stress that our opinion is in no way intended to
impose an obligation on counsel to cite to unpublished opinions.
Indeed, there is at present no comprehensive searchable database
20 available to counsel. Thus, counsel cannot be expected to ferret out
every unpublished case that may have conceivable persuasive effect
and provide it to the trial court.
¶ 43 Finally, we note with approval that, in this case, the opposing
party was provided with a copy of the unpublished opinion and
given the opportunity to argue its persuasive value to the trial
court. Should a party wish the court to consider an unpublished
opinion, or should a court on its own discover such an opinion it
finds persuasive, all parties should be provided with similar notice
and an opportunity to be heard.
4. Reliance on Improper Evidence
¶ 44 Lees’s argument that the trial court relied on improper
evidence in arriving at the fee award is also unavailing. When a
statute providing for an attorney fee award does not provide a
specific definition of “reasonableness,” the amount must be
determined in light of all the circumstances, based on the time and
effort reasonably expended by the prevailing party’s attorney.
Tallitsch v. Child Support Servs., Inc., 926 P.2d 143, 147 (Colo. App.
1996). In awarding attorney fees, a trial court may consider (1) the
21 amount in controversy; (2) the time required to effectively represent
the client; (3) the complexity of the action; (4) the value of the legal
services to the client; and (5) the customary practice in the legal
community regarding fees in similar actions. See Fang v. Showa
Entetsu Co., 91 P.3d 419, 424 (Colo. App. 2003); Porter v. Castle
Rock Ford Lincoln Mercury, Inc., 895 P.2d 1146, 1150 (Colo. App.
1995); see also Colo. RPC 1.5(a)(3) (recognizing “the fee customarily
charged in the locality for similar legal services” as a factor to
consider). There is no requirement that the court rely on particular
forms of evidence in calculating the reasonableness of these fees.
¶ 45 Here, James met her burden of establishing reasonableness by
providing testimony at the evidentiary hearing as well as sworn
affidavits prior to the hearing. Both James and her attorney
testified at the hearing. And each affidavit was supported by a
redacted fee bill. Because it is not improper for the trial court to
consider testimony and affidavits in determining the reasonableness
of an attorney fee award under section 13-17-201, the trial court
did not err in relying on this evidence.
22 5. James’s Claim for Attorney Fees on Fees
¶ 46 Section 13-17-102(2) authorizes the court to award reasonable
attorney fees against “any attorney or party who has brought or
defended a civil action, either in whole or in part, that the court
determines lacked substantial justification.” The trial court has
broad discretion in deciding whether to grant or deny attorney fees
under section 13-17-102. Consumer Crusade, Inc. v. Clarion Mortg.
Capital, Inc., 197 P.3d 285, 289 (Colo. App. 2008). “When granting
an award of attorney fees, the court shall specifically set forth the
reasons for said award[.]” § 13-17-103(1).
¶ 47 Here, with respect to the opposition to both the motion to
dismiss and the motion for attorney’s fees, the trial court explicitly
declined to find that Patterson’s or Lees’s positions lacked
substantial justification. We cannot say this determination was an
abuse of the court’s discretion.
D. Appellate Attorney Fees
¶ 48 Lastly, James requests an award of attorney fees incurred
defending this appeal under section 13-17-201. Because James
was successful in defending this appeal of claims dismissed under
23 Rule 12(b), she is entitled to such an award. See Dubray v.
Intertribal Bison Coop., 192 P.3d 604, 608 (Colo. App. 2008); Wark
v. Bd. of Cty. Comm’rs, 47 P.3d 711, 717 (Colo. App. 2002). We
leave the determination of the amount of attorney fees to the trial
court on remand. See C.A.R. 39.1; Dubray, 192 P.3d at 608.
III. Conclusion
¶ 49 The judgment is affirmed. We remand the case to the trial
court to enter an award of reasonable attorney fees incurred by
James in defending this appeal.
JUDGE HAWTHORNE and JUDGE BERNARD concur.