24CA0288 Marriage of Thornton 02-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0288 El Paso County District Court No. 17DR31134 Honorable David Prince, Judge
In re the Marriage of
Lindsay Shaw Thornton n/k/a Lindsay Shaw,
Petitioner,
and
Murray Alexander Thornton,
Appellee,
And Concerning
Amy M. Springer and Springer & Steinberg, P.C.,
Attorneys-Appellants.
ORDERS AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE GROVE Harris and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025
Gelman Law LLC, Weston Cole, Greenwood Village, Colorado; Alchemy Law Firm, LLC, Douglas Norberg, Denver, Colorado for Appellee
Springer & Steinberg, P.C., Jeffrey A. Springer, Michael P. Zwiebel, Denver, Colorado, for Attorneys-Appellants ¶1 Amy M. Springer, together with her law firm, Springer &
Steinberg, P.C. (jointly, Springer), appeals the district court’s orders
sanctioning her under C.R.C.P. 11 and section 13-17-102, C.R.S.
2024, and awarding attorney fees jointly and severally against her
and her client, Lindsay Shaw Thornton n/k/a Lindsay Shaw (wife).
We affirm in part, reverse in part, and remand the case with
directions.
I. Background
¶2 Wife filed for divorce from Murray Alexander Thornton
(husband) in 2017. Wife represented herself at first but then hired
a series of different attorneys as the case progressed.
¶3 Central to the dissolution proceedings was the division of
marital property, including the valuation and distribution of
potential damages related to an unresolved tort claim from a 2016
car crash that injured wife. Three insurance policies were
implicated in the claim’s resolution: the tortfeasor’s liability policy,
wife’s workers’ compensation policy, and the couple’s underinsured
and uninsured motorist (UM/UIM) policy. The potential value of
the personal injury claim — which the district court ruled should be
1 split 60-40 in favor of wife — was significant given the apparent
extent of wife’s injuries and the UM/UIM policy’s $500,000 limit.
¶4 Due to the involvement of three insurance companies and
attorneys in three different states, progress on the tort claim was
slow. The slow-going proceedings led husband’s attorneys to
repeatedly press wife and her Florida and California attorneys for
information about the claim’s status and for documents related to
the various policies and the claim itself. Dissatisfied with what wife
and her various attorneys provided, husband eventually filed a
motion to compel in which he sought the immediate disclosure of
“all detailed information and documentation relating to the personal
injury claims, including execution of an authorization for [husband]
and his lawyers to obtain information directly from insurance
carriers.” Specifically, the motion requested:
a. An accounting of [wife’s] claimed damages to date (including the total cost of medical treatment);
b. Amounts, details, and copies of all demands or offers to settle made on the workers’ compensation and UM/UIM carriers;
c. A copy of the UM/UIM policy;
2 d. If an arbitration or lawsuit has been commenced against either carrier, the case/arbitration number, date of filing, name of the arbitrator(s) and location of the arbitration (or the specific court where a lawsuit has been filed), and a summary of the current status of the arbitration or lawsuit;
e. A copy of any fee agreements related to her personal injury claims (redacting any medical information or attorney client privilege);
f. A full accounting of all settlement funds or other proceeds [wife] and her counsel have received related to her personal injury claims; and
g. A copy of any tolling or similar agreements related to her personal injury claims.
h. An authorization for [husband] to obtain the complete claim files from all carriers in a form acceptable to [husband’s] counsel.
¶5 Three weeks after husband filed his motion to compel,
Springer entered her appearance for wife, substituting for her
previous attorney. Shortly thereafter, she filed wife’s response to
the motion to compel. It was this response — specifically, its
assertion that wife “has provided all information related to her
personal injury claim that is in her possession, custody, or
control” — that gave rise to the sanctions order that is now before
3 us. Based on the representation that wife had already complied
with husband’s previous demands by turning over everything that
was available to her, Springer argued in the response that
husband’s motion to compel was frivolous, groundless, and
vexatious. She then requested attorney fees and costs under
C.R.C.P. 11 and section 13-17-102, C.R.S. 2024.
¶6 In a detailed written order, the district court ordered wife to
produce the requested information. Acknowledging that production
might be duplicative of wife’s previous disclosures, the court
nonetheless reasoned that compliance should be simple given wife’s
claim that she had already turned over everything in her
possession. The court also noted that a do-over would shed light on
the parties’ “mutually exclusive representations” about what had or
had not been previously disclosed and would allow it to determine
“which party’s characterization [wa]s more accurate or if some other
alternative explain[ed] their mutually exclusive representations of
apparently objective historical facts.” Foreshadowing the possibility
of sanctions, the court noted that a party who “wishe[d] to pursue
the dispute over Rule 11 compliance and/or application of [section]
4 13-17-102” would need to provide “a detailed and comprehensive
discovery log” along with any such motion.
¶7 Wife, via Springer, complied with the court’s order. Some of
the materials that she provided had not been previously disclosed,
including documents relating to the UM/UIM policy, wife’s damages
claims, demand and settlement offers, fee agreements, and
payments that wife had received.
¶8 Both parties then submitted motions for attorney fees and
sanctions. Wife argued that her disclosures demonstrated that she
had, in fact, previously turned over everything in her possession
and that, as a result, husband’s motion to compel required her to
needlessly incur additional attorney fees. For his part, husband
maintained that wife — via Springer’s response to the motion to
compel — had misrepresented to the court that she had already
disclosed all the requested materials and that the court should thus
“award [husband] attorney fees and costs under [section] 13-17-
102(4).”
¶9 The court agreed with husband. In a written order that
focused on what it characterized as Springer’s representation that
“all the information requested had already been provided to
5 [husband],” the court concluded that wife’s response to the motion
to compel “lacked candor” and contained “erroneous and
misleading” representations. The court found that an award of
attorney fees and costs against wife was an appropriate sanction
and — importantly for this appeal — that “[l]iability shall be joint
and several between [wife] and the counsel signing the [r]esponse
brief in opposition to the Motion to Compel at issue.”
¶ 10 Springer sought reconsideration, but the court denied the
motion. Eventually, it assessed $19,517.50 in fees against Springer
and wife jointly.
¶ 11 Springer now appeals the sanctions orders, arguing that (1)
the district court abused its discretion in awarding fees at all, as
well as against her personally; and (2) in the alternative, if the
award is upheld, the court erroneously calculated the total amount
owed.
II. Imposition of Sanctions
¶ 12 Springer challenges the district court’s imposition of sanctions
generally and against her personally. Specifically, she argues that
the court incorrectly found that the response to the motion to
compel was misleading and that, in any event, the record lacks
6 evidence showing that she failed to conduct a reasonable
investigation prior to filing the response.
A. Standard of Review and Applicable Law
¶ 13 The district court’s sanctions orders referenced both C.R.C.P.
11 and section 13-17-102. The decision to award attorney fees
under either provision is committed to the discretion of the trial
court, whose ruling will not be disturbed on appeal absent an abuse
of discretion. Stearns Mgmt. Co. v. Mo. River Servs., Inc., 70 P.3d
629, 633 (Colo. App. 2003). A court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, or unfair or when
the court misapplies or misconstrues the law. Int’l Network, Inc. v.
Woodard, 2017 COA 44, ¶ 24. When reasonable people could differ
as to the propriety of the trial court’s decision, it cannot be said
that the court abused its discretion. See People v. Wilson, 2014
COA 114, ¶ 35 (“[D]iscretion is abused only where no reasonable
person would take the view adopted by the trial court.”) (alteration
in original) (citation omitted); see also Vigil v. People, 2019 CO 105,
¶ 14 (“In determining whether a trial court has abused its
discretion, reviewing courts have . . . been admonished from
considering merely whether they would have reached the same
7 conclusion and, instead, must affirm as long as the trial court’s
decision fell within a range of reasonable options.”).
¶ 14 Section 13-17-102 exists “because our courts are burdened
with unnecessary litigation that interferes with the effective
administration of civil justice.” In re Marriage of Aldrich, 945 P.2d
1370, 1378 (Colo. 1997). The statute creates “an important
sanction available to a court in a civil case to punish an attorney or
a party who engages in conduct improperly instigating or prolonging
litigation.” Id.
¶ 15 Under section 13-17-102(4), a court shall assess attorney fees
if it finds that an attorney or party brought or defended an action,
or any part of an action, “that lacked substantial justification . . . ,
was interposed for delay or harassment . . ., or . . . unnecessarily
expanded the proceeding by other improper conduct, including . . .
abuses of discovery procedures . . . .” An action lacks substantial
justification if it is “substantially frivolous, substantially
groundless, or substantially vexatious.” § 13-17-102(9)(a).
¶ 16 Whether a claim is substantially frivolous, substantially
groundless, or substantially vexatious is a determination within the
district court’s discretion. Hamon Contractors, Inc. v. Carter &
8 Burgess, Inc., 229 P.3d 282, 299 (Colo. App. 2009). Vexatious
conduct includes conduct that is arbitrary, abusive, stubbornly
litigious, or disrespectful of truth. Bockar v. Patterson, 899 P.2d
233, 235 (Colo. App. 1994).
¶ 17 C.R.C.P. 11(a) imposes affirmative obligations on an attorney
signing a pleading:
The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
¶ 18 If a pleading is signed in violation of this rule, the court, “shall
impose . . . an appropriate sanction, which may include an order to
pay to the other . . . parties the amount of the reasonable expenses
incurred because of the filing of the pleading, including a
reasonable attorney’s fee . . . .” Id. (emphasis added). The
imposition of sanctions for a C.R.C.P. 11 violation is mandatory.
Henry v. Kemp, 829 P.2d 505, 506 (Colo. App. 1992). The rule
9 requires the court to impose sanctions against the attorney, the
client, or both. Id.
B. Misleading Statements
¶ 19 At the heart of the district court’s sanctions orders was wife’s
assertion in her response to the motion to compel that, “as
[husband] is aware, [wife] has provided all information related to
her personal injury claim that is in her possession, custody or
control.” The court found that this “representation and [the] line of
argument flowing from the representation lacked candor,” that the
statement was “erroneous and misleading,” and that “it was known
to be so when made.”
¶ 20 Springer contends that the court abused its discretion in
reaching this conclusion because it failed to account for the broader
context in which the statement appeared. Considering the response
as a whole, Springer maintains, makes clear that wife was only
asserting that she had already disclosed information that was
relevant to the request — a category narrowly circumscribed by
caveats in the court’s prior orders and in wife’s response itself.
¶ 21 This argument misunderstands the district court’s order,
which made no attempt to define or construe what information or
10 documents might or might not have been “relevant” in any technical
sense. Instead, the court based its sanctions decision on the
response’s unqualified assertion that wife had already provided to
husband “all information related to her personal injury claim that is
in her possession, custody or control.” That assertion, the court
concluded, was proven false when the tranche of documents wife
provided after the court ordered a disclosure do-over included
materials that were not included in wife’s previous discovery
responses.
¶ 22 We acknowledge Springer’s argument that wife’s belated
disclosure of the documents in question does not, standing on its
own, necessarily establish that wife possessed or had control of
them at any previous point. But that contention again misses the
mark. The court was primarily concerned with candor, and its
conclusion that Springer’s representation was “erroneous and
misleading” has ample record support. As one example, the court
noted that Springer made factual assertions in her briefing that
were not adequately supported by an affidavit from wife that she
cited as the information’s source. For another, the court found, “[a]
tolling agreement existed and [wife] failed to provide a copy to
11 [husband] despite the line of argument presented in opposition to
the Motion to Compel (and, moreover, failed even to disclose clearly
whether such an agreement existed).”
¶ 23 As the district court noted,
In a discovery dispute, a significant difference exists between asserting that one has produced the existing record and then failing to clarify whether the record even exists (in this case, the inference from the briefing was that none existed but we now know one did exist) or asserting that the record does exist, has been pursued diligently, but one’s own lawyer is refusing to produce.
¶ 24 We agree with this observation and conclude that the district
court did not abuse its discretion in finding that the response’s
representation about the extent of wife’s previous disclosures was
untrue and lacked substantial justification. See C.R.C.P. 11(a);
Stepanek v. Delta Cnty., 940 P.2d 364, 370 (Colo. 1997) (imposition
of Rule 11 sanctions does not necessitate showing of bad faith on
part of attorney who certifies pleading; instead, sanctions are
appropriate where attorney’s signed pleading fails to meet test of
objective reasonableness); § 13-17-102(9)(a) (An action lacks
substantial justification if it is “substantially frivolous, substantially
groundless, or substantially vexatious.”).
12 C. Reasonable Investigation
¶ 25 We turn next to Springer’s contention that the court abused
its discretion in imposing sanctions because (1) she did not know
her representation was inaccurate, and (2) she made a reasonable
inquiry prior to responding to husband’s discovery requests.
Because this argument is unpreserved, we do not address it on the
merits.
¶ 26 “Arguments raised for the first time in a reply brief before a
trial court are not properly before an appellate court where the
opposing party was unable to respond, and the trial court made no
findings or conclusions with respect to that contention.” Grohn v.
Sisters of Charity Health Servs. Colo., 960 P.2d 722, 727 (Colo. App.
1998); Coomer v. Donald J. Trump for President, Inc., 2024 COA 35,
¶ 118 (“We ordinarily will not consider issues raised for the first
time in a reply brief before the district court.”).
¶ 27 After wife complied with the motion to compel, husband filed a
motion requesting a fee award “against [wife]” under section 13-17-
102(4). The district court, however, awarded fees under both
section 13-17-102(4) and C.R.C.P. 11 and made liability for those
fees “joint and several between [wife] and [Springer].”
13 ¶ 28 Springer filed a motion for reconsideration in which she denied
making inaccurate representations in the response to husband’s
motion to compel and asserted that the statements that wife made
“in her affidavit were made in good faith based on information she
had obtained from California counsel.” The motion to reconsider
did not challenge the court’s decision to sanction Springer
personally, nor did it assert that she should not be penalized under
C.R.C.P. 11 because the representations at issue had been based
on a reasonable investigation. Springer did, however, raise the
issue in her reply brief, arguing for the first time that the predicate
conditions for sanctions under C.R.C.P. 11 had not been met and
attaching an affidavit stating, among other things, that Springer
and an associate attorney had “undert[aken] efforts . . . to educate
[themselves] as to the status of this complex case and to review the
voluminous pleadings” before filing wife’s response to the motion to
compel.
¶ 29 The district court acknowledged Springer’s argument but
concluded that she waived it by raising it too late. As the court put
it, “[t]he time to present any defense by counsel making the
representation that they did not know their representation was
14 inaccurate and/or that they had made reasonable inquiries before
making the erroneous representation was when the request was
made for sanction[s] under Rule 11, not after the sanction was
imposed.” Because Springer chose a different tack in the sanctions
briefing — arguing throughout that sanctions were unwarranted
because there were no misleading statements in wife’s response to
the motion to compel — the court declined to consider her newly
raised assertions of due diligence.
¶ 30 Springer maintains that both her arguments are timely. She
points out that husband’s motion only referenced section 13-17-
102(4) and did not request a fee award against her personally, and
argues that, as a result, she had no reason to address the C.R.C.P.
11 standards. That argument might have some force if Springer
had included details about her prefiling investigation in her motion
for reconsideration. See C.R.C.P. 46 (“[I]f a party has no
opportunity to object to a ruling or order at the time it is made, the
absence of an objection does not thereafter prejudice him.”). But,
despite the district court’s explicit invocation of C.R.C.P. 11 in its
first sanctions order, Springer waited until filing her reply brief in
support of the motion for reconsideration to raise it for the first
15 time. This deprived husband of the opportunity to respond to the
argument, and under those circumstances we cannot conclude that
the district court abused its discretion by concluding that the issue
was waived. See Coomer, ¶ 118.
D. Amount Assessed
¶ 31 Finally, Springer argues the court abused its discretion when
it awarded fees and sanctions for (1) work done by husband’s
attorneys before she entered her appearance in the case and
(2) time spent by husband’s attorneys responding to her motion for
reconsideration. We agree with her first argument, but not the
second.
¶ 32 “Proper sanctions under C.R.C.P. 11 may include an order to
pay the other party’s reasonable expenses incurred in response to
the pleading as well as reasonable attorney fees.” Stepanek, 940
P.2d at 370 (emphasis added). Similarly, sanctions under section
13-17-102(4) are intended to compensate the opposing party for
actions that lack substantial justification. We do not interpret
either provision as encompassing behavior that predates an
attorney’s involvement in the case. In other words, because there is
nothing in the record that would support a conclusion that Springer
16 engaged in any misconduct related to the motion to compel before
she entered her appearance, the court could not impose sanctions
against Springer for fees incurred by husband during that time
period.1
¶ 33 We reach the opposite conclusion with respect to fees incurred
by husband in responding to Springer’s motion for reconsideration.
It was well within the district court’s discretion to conclude that
husband should not be required to incur the financial burden
associated with defending the propriety of the sanctions that it had
already awarded.
III. Appellate Attorney Fees
¶ 34 Husband requests an award of appellate attorney fees under
C.A.R. 38(b). Springer partially prevailed in this appeal, and her
unsuccessful appellate arguments were not frivolous or otherwise
sanctionable. We therefore decline to award appellate attorney fees.
1 The district court could, however, and did, impose sanctions
against wife for attorney fees incurred before Springer’s entry of appearance. That portion of the award has not been challenged in this appeal. On remand, the court should subtract that portion of the fees from the overall total, leaving wife solely responsible for her misconduct before Springer’s entry of appearance, and wife and Springer jointly and severally liable for the fees incurred by husband after Springer’s entry of appearance.
17 IV. Disposition
¶ 35 We affirm the court’s imposition of sanctions under C.R.C.P.
11 and section 13-17-102(4). We reverse the court’s award of
attorney fees against Springer to the extent that it applies to fees
incurred by husband before Springer entered her appearance in the
case. We remand the case with instructions to the district court to
recalculate the fees for which Springer and wife are jointly and
severally liable.
JUDGE HARRIS and JUDGE PAWAR concur.