24CA0251 Matter of Arredondo 11-14-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0251 Rio Grande County District Court No. 20PR1 Honorable Crista Newmyer-Olsen, Judge
In the Matter of Anestacio Damian Arredondo, Protected Person.
Yvonne Arredondo,
Appellant,
v.
Andres Arredondo, Guardian,
Appellee.
ORDER AFFIRMED
Division VI Opinion by JUDGE BERNARD* Welling and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024
Erich Schwiesow, PC, Erich Schwiesow, Alamosa, Colorado, for Appellant
Brown & Brown, P.C., Daniel F. Fitzgerald, Grand Junction, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Appellants Yvonne Arredondo and her attorney, Erich
Schwiesow, appeal the district court’s joint and several award of
attorney fees and costs to Andres Arredondo. We affirm.
I. Background
¶2 This appeal arises out of a contested guardianship. The ward
of this guardianship, Anestacio Damian Arredondo, is a twenty-five-
year-old man with severe autism.
¶3 Ms. Arredondo is the ward’s mother. Until fairly recently, she
was the ward’s primary caretaker. But, in December 2019, she was
arrested for vehicular eluding, reckless endangerment, obstructing
a peace officer, resisting arrest, crimes against an at-risk adult (the
ward), reckless driving, damaging a highway, and failing to drive in
a single lane.
¶4 In January 2020, because of this arrest, the ward’s sister filed
a petition for guardianship in the ward’s interest. Her petition
explained that the ward “is unable to do everyday tasks such as
taking a shower, cooking or making any financial decisions. He is
essentially nonverbal with respect[] to a few words and simple
sentences.” Ms. Arredondo filed a competing petition to become the
ward’s guardian.
1 ¶5 After the court held a hearing on the dueling petitions, it
appointed the sister to be the ward’s guardian, but the ward
continued to live with Ms. Arredondo. Less than three weeks later,
the sister resigned the position due to her “health plummet[ing]
with the stress of having to deal with [Ms.] Arredondo.” In her
resignation, the sister reported that Ms. Arredondo would be “more
friendly and cooperative” if the ward’s adult brother, Andres
Arredondo, were to be the ward’s guardian.
¶6 The sister’s resignation prompted another round of competing
petitions to become the ward’s successor guardian. Again rejecting
Ms. Arredondo’s candidacy, the court appointed Andres Arredondo
as the successor guardian in March 2020, and we will refer to him
as “the guardian” from here on out. The ward continued to live with
Ms. Arredondo, who cared for him.
¶7 In June 2021, the guardian filed an annual report. In the
report, among other things, he asked the court for authority to
appoint a caretaker other than Ms. Arredondo for the ward. The
guardian wrote that he wanted the flexibility to “not solely [have the
caretaker] be [Ms. Arredondo] . . . because [she] is difficult to work
with and must constantly be asked to do things.” The guardian
2 added that he had difficulty in contacting Ms. Arredondo and in
arranging his visitation with the ward.
¶8 In February 2022, the guardian filed a Motion to Clarify
Guardian’s Authority, which was accompanied by the guardian’s
affidavit. The affidavit recounted that, in December 2021, Ms.
Arredondo disclosed that she had tested positive for COVID-19, yet
she had initially refused to move the ward to the house of the
ward’s father. The ward soon tested positive for the disease.
¶9 The affidavit also stated that a family nurse practitioner
“would not agree to be [the ward’s] care provider if [Ms. Arredondo]
was involved in any way due to [the practitioner’s] past experience
with [Ms. Arredondo], including [Ms. Arredondo’s] abusive and
harassing behaviors.”
¶ 10 Finally, the affidavit, which was accompanied by police
reports, explained how Ms. Arredondo was recently twice involved
with the police. In the first incident, Ms. Arredondo took the ward
to sleep on the floor of the Del Norte Sheriff’s Office because Ms.
Arredondo thought that she had smelled natural gas in her house.
Ms. Arredondo also mentioned that she was on
“meth[amphetamine] and crack [cocaine].”
3 ¶ 11 In the second incident, which occurred on the next day, Ms.
Arredondo was arrested and jailed after she had driven into a field.
She told police officers who had come to the field that she “was
going to kill herself” or drive her car into their cars. She was
eventually arrested, and criminal charges were filed against her.
(These charges were later dismissed in June 2022.)
¶ 12 Last, the guardian wrote that he had learned from his father
that, about three weeks after the two incidents described above, Ms.
Arredondo had tried to abduct the ward while the ward was
receiving treatment at a local health clinic.
¶ 13 After reviewing the motion and the affidavit, the court issued
an order giving the guardian full authority over the ward and
revoking any authority that Ms. Arredondo had over the ward. The
order added that Ms. Arredondo could not contact the ward’s
caregivers, that she could not interfere with the guardian’s
decisions about the ward’s care, and that the guardian had full
authority to remove the ward from Ms. Arredondo’s care.
¶ 14 By June 2022, the guardian reported that the ward was living
with the ward’s father and was doing well, although he would
occasionally have flashbacks to the “cruel things” that Ms.
4 Arredondo would say to him when he was living with her. In that
report, the guardian mentioned that he might “seek fees and costs”
from Ms. Arredondo and her attorney because Ms. Arredondo’s
“unreasonable actions” had driven up the legal costs of the
guardianship.
¶ 15 Ms. Arredondo, who at this point was represented by Mr.
Schwiesow, then filed three motions that formed the basis of the
court’s order requiring them, jointly and severally, to pay the
guardian’s attorney fees.
¶ 16 In November 2022, Ms. Arredondo filed the first motion, which
was entitled “Petition for Removal of Guardian, or, in the
Alternative, Modification of the Guardian’s Authority.” As grounds
for the guardian’s removal, the petition alleged that (1) the charges
relating to the December 2021 incident had been dropped; (2) the
guardian had “refused, despite countless requests, to allow [Ms.
Arredondo] to visit or spend time with the ward”; (3) the ward had
been left alone while in his father’s care; and (4) the guardian had
“spent the estate’s assets on a few large ticket items of questionable
value” to the ward. Based on these allegations, Ms. Arredondo
asked the court to remove “the guardian in favor of [Ms. Arredondo]
5 or, in the alternative, . . . facilitate extended visitation between [Ms.
Arredondo and the ward].”
¶ 17 In February 2023, Ms. Arredondo filed the second motion,
which she called a “Forthwith Motion to Require Guardian to
Disclose Caregiver and for an Order Authorizing Production of
Caregiver Records.” The forthwith motion to disclose asked the
court to order the guardian to provide the names of the ward’s
health care providers for the past five years, arguing that “[t]he
[g]uardian [had] placed the health of the [w]ard at issue by removing
the [w]ard from Ms. Arredondo’s care . . . [and by] denying visitation
between the [w]ard and Ms. Arredondo.” The forthwith motion also
asserted that Ms. Arredondo “require[ed] the [w]ard’s medical
records in order to make her case at the scheduled hearing” on her
petition. The court denied this request because the information she
sought was protected by the physician-patient privilege, and this
privilege had not been waived.
¶ 18 Finally, in April 2023, Ms. Arredondo filed the third motion,
which she called a “Motion to Quash Guardian’s Discovery
Requests.” In it, she argued that the guardian’s request for
discovery from her was inappropriate in this probate case and that
6 no court rule allowed it. After explaining that “[d]iscovery in
probate matters is governed by Rule 40 of the Colorado Rules of
Probate Procedure[,]” the court denied the motion to quash.
¶ 19 Then, beginning in July 2023, Ms. Arredondo had at least five
encounters with the Monte Vista Police Department because she
was allegedly harassing her neighbors. At the end of July, she was
arrested and subsequently charged with attempted kidnapping of a
child and felony menacing. Approximately two weeks later, she was
charged with public indecency and disorderly conduct.
¶ 20 As a result of the various proceedings, the court vacated the
hearing on Ms. Arredondo’s petition for removal. At a status
conference in late September 2023, Mr. Schwiesow told the court
that he was withdrawing the petition for removal because of the
pending felony charges.
¶ 21 After this, the guardian filed a “Motion for Attorney Fees,
Costs, and Other Sanctions,” which alleged that Ms. Arredondo’s
petition for removal had been “groundless, frivolous, and [filed] in
bad faith.” The court granted the guardian’s motion in part,
assessing $19,766.67 in attorney fees jointly and severally against
Ms. Arredondo and Mr. Schwiesow.
7 II. Discussion
¶ 22 Ms. Arredondo and Mr. Schwiesow contend that the court
erred when it found they had acted in bad faith by filing and
litigating the petition for removal, the forthwith motion, and the
motion to quash, and by then ordering them, jointly and severally,
to pay the guardian’s attorney fees. We disagree.
A. Standard of Review and Applicable Law
¶ 23 Whether a court should award attorney fees is a question of
fact. We review a court’s decision to award such fees for an abuse
of discretion. Nesbitt v. Scott, 2019 COA 154, ¶ 16. A court abuses
its discretion if its order is manifestly arbitrary, unreasonable, or
unfair, or if the order is based on a misapplication or
misunderstanding of the law. Credit Serv. Co. v. Skivington, 2020
COA 60M, ¶ 24. We will affirm a court’s determination that an
award of attorney fees is reasonable “unless it is patently erroneous
and unsupported by the evidence.” Accetta v. Brooks Towers
Residences Condo. Ass’n, 2021 COA 147M2, ¶ 43. “The trial court
must make findings sufficient to allow meaningful appellate review
of an award.” Brody v. Hellman, 167 P.3d 192, 198 (Colo. App.
2007).
8 ¶ 24 Generally, attorney fees cannot be recovered absent an
express statute, court rule, or private contract providing for them.
Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1015 (Colo. 2003). But,
as is relevant to this case, awards of attorney fees and costs may be
granted under sections 13-17-102 and 15-10-605, C.R.S. 2024, as
well as under C.R.C.P. 11.
¶ 25 Section 15-10-605(1) provides that, for any filings made under
the probate code “in bad faith, the court may assess the fees and
the costs, including reasonable attorney fees, incurred by the . . .
affected parties in responding to the proceedings or pleadings.”
¶ 26 C.R.C.P. 11(a) similarly provides that an attorney’s signature
on a pleading filed with the court “constitutes a certificate by him
that . . . [the pleading] is well grounded in fact and is warranted by
existing law or a good faith argument.” Plus, “[i]f a pleading is
signed in violation of this Rule” — that is, the pleading is not
warranted by existing law or a good faith argument — then the
court shall impose an appropriate sanction “which may include an
order to pay the other party or parties the amount of the reasonable
expenses incurred because of the filing of the pleading.” Id.
9 ¶ 27 Finally, under section 13-17-102(2), a court shall award
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.” See In re Marriage of
Ensminger, 209 P.3d 1163, 1165 (Colo. App. 2008). In determining
whether an award under section 13-17-102 is appropriate, trial
courts are required to set forth the reasons for the award and must
consider a number of factors, including, as is pertinent to our
analysis, (1) “the extent of any effort made to determine the validity
of any action or claim before said action or claim was asserted”; (2)
“whether or not the action was prosecuted or defended, in whole or
in part, in bad faith”; and (3) “whether or not issues of fact
determinative of the validity of a party’s claim or defense were
reasonably in conflict.” § 13-17-103(1)(a), (e), (f).
¶ 28 Although these two statutes and one court rule address
somewhat different bases for ordering attorney fees and costs, they
all consider court filings or arguments made in bad faith to be
grounds for awarding attorney fees. In this context, “bad faith” may
include conduct that is arbitrary, abusive, stubbornly litigious, or
disrespectful of the truth. In re Marriage of Roddy, 2014 COA 96,
10 ¶ 34. A claim or defense “is brought or maintained in bad faith,”
and therefore “lacks substantial justification[,] when it is
substantially frivolous, groundless, or vexatious.” Id. “A claim or
defense is frivolous if the proponent can present no rational
argument based on the evidence or the law to support the claim or
defense.” Hawley v. Mowatt, 160 P.3d 421, 427 (Colo. App. 2007).
The party seeking attorney fees “has the burden of proving the
claim by a preponderance of the evidence.” Remote Switch Sys., Inc.
v. Delangis, 126 P.3d 269, 275 (Colo. App. 2005).
B. The Court’s Findings
¶ 29 Ms. Arredondo and Mr. Schwiesow challenge the court’s order
assessing attorney fees against them jointly and severally. Notably,
they do not contest the reasonableness of the court’s lodestar
calculations. Rather, they contend that the record before the court
“does not support the conclusion that any of the complained of
pleadings were filed in bad faith.” Accordingly, we will only address
that issue.
¶ 30 We next summarize the court’s findings of bad faith
concerning the three motions that we described above: the petition
11 for removal, the forthwith motion to disclose, and the motion to
quash.
¶ 31 The court made general findings about the three motions,
concluding that they were “made in bad faith.”
¶ 32 As far as the petition for removal was concerned, the court
found as follows:
• In discussing Ms. Arredondo’s prayer for relief in the petition
for removal, the court explained that, given Ms. Arredondo’s
history of mental distress and corresponding alleged behavior,
“[t]he court cannot find that Mr. Schwiesow acted in good faith
in asserting that there were any reasonable grounds by which
Ms. Arredondo could be safely reinstated as caretaker, or that
[g]uardian could be removed from his position.”
• The court reasoned that “Ms. Arredondo has never been
guardian in this case, which demonstrates that the [c]ourt
never found appointing her to be in the [w]ard’s best
interests.”
• Given Mr. Schwiesow’s experience as an attorney working with
Ms. Arredondo for many years, he “should be well aware that
the [c]ourt could not conceivably make her guardian or
12 caretaker under the circumstances which are and have been
present since the [w]ard was initially removed from her care.”
• If, as Ms. Arredondo’s motions suggested, “the primary issue
was [Ms. Arredondo’s] visitation [with the ward],” then the
court reasoned that the issue “could have been addressed
simply and directly.” Instead, Ms. Arredondo and Mr.
Schwiesow filed the petition for removal.
• While “[s]eeking to address the issue of visitation between the
[w]ard and [Ms. Arredondo] was not necessarily done in bad
faith[,] [t]he manner in which [it] was done coupled with other
groundless allegations of [Ms. Arredondo]” exhibited bad faith.
• Ms. Arredondo and Mr. Schwiesow did not withdraw the
petition for removal “until nearly two months after the arrest
which was cited as the basis for the withdrawal.”
¶ 33 When discussing the forthwith motion for disclosure, the court
found that “the request for medical records was clearly filed in bad
faith as it was facially irrelevant to the matter at hand, and the vast
majority of arguments made in that motion were either irrelevant or
patently offensive.”
13 ¶ 34 Turning to the motion to quash, the court found that it “was
clearly unsupported by the laws of this state.”
¶ 35 In concluding its order, the court found that “these errors,
unprofessional behavior, and stubborn litigation [were] the product
of both Ms. Arredondo and Mr. Schwiesow’s conduct.”
C. The Record Supports the Court’s Finding of Bad Faith
¶ 36 Ms. Arredondo and Mr. Schwiesow contend that the court
abused its discretion when ordering them to pay attorney fees
jointly and severally because, they continue, the record does not
support findings that they had acted in bad faith. We disagree.
1. Motion to Quash
¶ 37 Initially, Ms. Arredondo and Mr. Schwiesow concede that filing
the motion to quash had been “ill-advised” and that the motion
“was not well grounded in law.” Based on this concession, we
conclude that the record supports the court’s finding that the
motion to quash was filed in bad faith.
2. Petition for Removal
¶ 38 In defense of the petition for removal, Ms. Arredondo and Mr.
Schwiesow assert that it “was filed pursuant to the provisions
C.R.S. § 15-14-318(4) and § 15-10-503.” And they contend that it
14 “set[] forth the grounds under which Ms. Arredondo asserted that
[the statutory grounds for the removal of a guardian] were met in
numbered paragraphs 1-8.” But, given Ms. Arredondo’s history of
mental health concerns and contacts with the criminal justice
system, Mr. Schwiesow’s long tenure as her attorney, and the
court’s repeated refusal to appoint Ms. Arredondo as the ward’s
guardian, the record supports the court’s finding that Mr.
Schwiesow “knew, or reasonably should have known, that he would
not prevail on [the petition for removal]” when he filed it.
¶ 39 Then, Ms. Arredondo and Mr. Schwiesow submit that, because
the petition for removal was withdrawn before the court held a
hearing, section 13-17-102 precludes any award of attorney fees.
See § 13-17-102(5), C.R.S. 2024 (“Attorney fees . . . shall not be
assessed if, after filing suit, a voluntary dismissal is filed as to any
claim or action within a reasonable time after the attorney . . . or
party filing the dismissal knew, or reasonably should have known,
that the attorney . . . or party would not prevail on the claim or
action.”).
¶ 40 The key in this statute is the phrase a “reasonable time after
the attorney . . . or party filing the dismissal knew, or reasonably
15 should have known,” that they would not prevail on said claim or
action. The court found that Ms. Arredondo and Mr. Schwiesow
had not withdrawn the motion for two months after Ms. Arredondo’s
encounters with law enforcement.
¶ 41 Even assuming, for the purposes of argument, that the
petition for removal was not filed in bad faith, the court implicitly
found that Ms. Arredondo and Mr. Schwiesow had acted in bad
faith because they had not withdrawn it within a reasonable time
after Ms. Arredondo’s contacts with law enforcement. The court
added that they should have withdrawn the petition “at the moment
when [Mr. Schwiesow] became aware that [Ms. Arredondo] was
suffering from yet another mental health crisis.” “Yet,” the court
went on, they did not withdraw the petition “until nearly two
months after the arrest which was cited as the basis for the
withdrawal of the petition.”
¶ 42 Based on the preceding analysis, we conclude that the record
supports the trial court’s findings that (1) Ms. Arredondo and Mr.
Schwiesow filed the petition for removal in bad faith; and (2) their
two-month delay in withdrawing it, after it became clear that they
16 knew, or reasonably should have known, that they would not
prevail on it, was in bad faith.
3. Forthwith Motion for Disclosure
¶ 43 In support of the forthwith motion for disclosure, Ms.
Arredondo and Mr. Schwiesow contend that “the filings speak for
themselves.” They add that the forthwith motion was not made in
bad faith because the guardian had injected the ward’s medical or
mental condition into the proceedings by making claims that the
ward suffered from post-traumatic stress disorder and excessive
weight gain from the time when he was in Ms. Arredondo’s care.
Accordingly, the requested medical records “would be relevant to
[guardian’s] assertion, or whether the assertion was a red herring.”
¶ 44 We disagree for the following reasons.
¶ 45 First, medical records are protected by physician-patient
privilege, and the forthwith motion for disclosure did not present
any argument why that privilege had been waived.
¶ 46 Second, the request asked for five years of medical records,
but Ms. Arredondo had been the ward’s primary caretaker for the
first four of those years. So she should have already had much of
the information covered by the forthwith request.
17 ¶ 47 Third, the forthwith request did not connect the requested
medical records with the grounds contained in the petition for
removal.
¶ 48 Based on the preceding analysis, we conclude that the record
supports the trial court’s findings that the forthwith motion for
disclosure was filed in bad faith.
4. Lack of a Hearing
¶ 49 In the reply brief, Ms. Arredondo and Mr. Schwiesow contend
that they should have been given an evidentiary hearing on the
issue of whether the three motions had been filed in bad faith.
They add that they should have been given a “trial on the merits.”
See Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282,
300 (Colo. App. 2009).
¶ 50 They raise this assertion for the first time in the reply brief.
For example, they filed a lengthy response in the trial court to the
motion for attorney fees. But that motion did not ask the court for
an evidentiary hearing. And they did not raise this assertion in the
opening brief. As a result, we decline to address it. Vitetta v.
Corrigan, 240 P.3d 322, 330 (Colo. App. 2009).
5. Conclusion
18 ¶ 51 In summary, our review of the record establishes that the
court did not abuse its discretion when it entered the attorney fees
order because the order was not manifestly arbitrary, unreasonable,
or unfair, and it was not based on a misapplication or
misunderstanding of the law. See Credit Serv. Co., ¶ 24.
D. Appellate Attorney Fees and Costs
¶ 52 The guardian asks us to award him attorney fees and double
costs associated with this appeal pursuant to sections 13-17-102(2)
and 15-10-605(1), as well as C.A.R. 28(b), 38(b), and 39.1.
Although we have concluded that the record supports the court’s
attorney fee order because Ms. Arredondo and Mr. Schwiesow had
filed three documents in bad faith, we nevertheless conclude that
their position on appeal is neither frivolous as filed nor frivolous as
argued. “Because a lawyer may present a supportable argument
which is extremely unlikely to prevail on appeal, it cannot be said
that an unsuccessful appeal is necessarily frivolous.” Mission
Denver Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984).
III. Disposition
¶ 53 The district court’s order is affirmed.
JUDGE WELLING and JUSTICE MARTINEZ concur.