Lees v. James

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unpublished opinions of the court of appeals to the extent the trial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.

1. Standard of Review

¶ 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.

24