Bertoia v. Galaxy

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
June 5, 2025

2025COA55

No. 23CA2110, Bertoia v. Galaxy — Bankruptcy — Abuse of
Process; Constitutional Law — Sixth Amendment — Federal
Supremacy — Preemption

As a matter of first impression in Colorado, a division of the

court of appeals addresses whether a state abuse of process claim

arising out of actions taken during bankruptcy proceedings is

preempted by federal bankruptcy laws. Applying principles of field

and conflict preemption, the division concludes that federal law

preempted the plaintiffs’ state abuse of process claim. The division

also addresses, as a matter of first impression, the impact that an

entity’s loss of legal representation during the course of an appeal

has on a division’s ability to decide the merits of the entity’s

appellate contentions.
COLORADO COURT OF APPEALS 2025COA55

Court of Appeals No. 23CA2110
City and County of Denver District Court No. 19CV33523
Honorable David H. Goldberg, Judge

Wanda Bertoia,

Plaintiff-Appellant and Cross-Appellee,

and

WPB Hospitality, LLC, a Colorado limited liability company,

Plaintiff-Appellant,

v.

Galaxy Management Company, LLC, a Texas limited liability company;
Jagmohan Dhillon; and Denver Gateway, LLC, a Colorado limited liability
company,

Defendants-Appellees,

and

Frisco Acquisition, LLC, a Texas limited liability company,

Defendant-Appellee and Cross-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE SCHUTZ
Welling and Kuhn, JJ., concur

Announced June 5, 2025
Podoll & Podoll, P.C., Richard B. Podoll, Robert C. Podoll, Robert A. Kitsmiller,
Jacqueline E. M. Hill, Greenwood Village, Colorado, for Plaintiff-Appellant and
Cross-Appellee and Plaintiff-Appellant

Galaxy Management Company, LLC, a Texas limited liability company, Pro Se

Jagmohan Dhillon, Pro Se

Denver Gateway, LLC, a Colorado limited liability company, Pro Se

Frisco Acquisition, LLC, a Texas limited liability company, Pro Se
¶1 Plaintiffs, Wanda Bertoia and her company, WPB Hospitality,

LLC (WPB), appeal several orders and the judgment entered by the

trial court on their claims against defendants, Galaxy Management

Company, LLC (Galaxy); Jagmohan Dhillon; Denver Gateway, LLC

(Gateway); and Frisco Acquisition, LLC (Frisco). Frisco cross-

appeals the trial court’s award to Bertoia of bankruptcy funds that

were previously interpleaded into the court registry. We affirm the

orders and judgment, and we remand the case to the trial court to

determine Frisco’s appellate fees and costs.

I. Background

¶2 Bertoia was the sole owner and manager of WPB when it

received construction financing from American Lending Center

(ALC) to build a hotel near Denver International Airport. The

project failed; ALC initiated a foreclosure action; and, in October

2018, WPB filed for protection under Chapter 11 of the Bankruptcy

Code (WPB bankruptcy), which stayed the foreclosure and allowed

Bertoia to seek alternative financing.

¶3 During the WPB bankruptcy proceedings, Bertoia contracted

to sell her ownership interest in WPB to Frisco (WPB Contract) and

1
contracted with Frisco and Abbas Consulting, Inc. (Abbas), for their

purchase of the hotel property (Hotel Contract).

¶4 The execution of both the Hotel Contract and the WPB

Contract was contingent on the bankruptcy court’s approval of the

subject sales. However, the bankruptcy court did not approve

either contract and ultimately granted ALC relief from the

bankruptcy stay to pursue foreclosure of the hotel property. The

bankruptcy court, however, delayed the effective date of the relief

from stay until mid-May 2019.

¶5 Before the stay was lifted, while ostensibly moving forward to

close on the Hotel Contract and the WPB Contract, Bertoia was also

separately pursuing refinancing options with third parties that

would allow her to pay off the ALC loan and remain in control of

WPB and the hotel property. Frisco eventually learned of these

activities.

¶6 On May 7, 2019 — citing the absence of approval of the

contracts from the bankruptcy court and the impending foreclosure

by ALC — Frisco notified Bertoia that it was terminating the WPB

Contract. In its termination letter, Frisco asserted that Bertoia’s

2
“actions and omissions in the course of this matter ha[d]

contributed to the impending total devaluation of WPB.”

¶7 The foreclosure sale of the hotel property was held

approximately two weeks after Frisco sent the termination letter.

ALC was the successful bidder at the foreclosure sale. ALC sued

Frisco after Frisco filed notices of its intent to redeem the property

based on mechanics’ liens it had obtained while the WPB

bankruptcy was pending. ALC and Frisco reached a settlement in

July 2019, and contemporaneously, Frisco acquired ALC’s interest

in the hotel property.

¶8 Although Frisco was owned by Param Jit Kaur, it was allegedly

controlled by Dhillon. Dhillon was also the sole member and

manager of Galaxy, a company that assisted Frisco financially with

the purchase of the hotel property. Frisco later assigned its rights

in the hotel property to Gateway, a recently formed company wholly

owned by Dhillon’s wife. Frisco, now an assetless company, filed for

protection under Chapter 7 of the Bankruptcy Code in Texas (Frisco

bankruptcy) in November 2020.

¶9 Meanwhile, in September 2019, a few weeks before Frisco’s

assignment of the hotel property to Gateway, Bertoia filed this case

3
against ALC, Frisco, Abbas, and the attorneys who had represented

Bertoia during the WPB bankruptcy. WPB was eventually added as

a Plaintiff in the case. During the Frisco bankruptcy proceedings,

Bertoia learned of the transfer of the hotel property from Frisco to

Gateway. Bertoia and WPB then amended their complaint to

include a claim against Frisco and Dhillon under the Colorado

Uniform Fraudulent Transfer Act (CUFTA). §§ 38-8-101 to -112,

C.R.S. 2024. Bertoia filed a separate action against Gateway and

Dhillon’s wife, which also included a CUFTA claim. The trial court

consolidated the two lawsuits.

¶ 10 Bertoia and WPB collectively, and Bertoia individually,

asserted numerous claims against the parties allegedly involved in

these transactions. As relevant on appeal, they asserted the

following claims1 against the identified defendants:

1 Bertoia and WPB filed a total of twelve claims. We include only
the eight claims relevant to this appeal.

4
# Claim Against Resolution
1 Breach of Frisco, Dhillon, and Jury verdict in favor of
Contract Galaxy Frisco
2 Fraud Frisco and Dhillon Jury verdict in favor of
Frisco and Dhillon
3 Fraudulent Frisco and Dhillon Jury verdict in favor of
Omission Frisco and Dhillon
4 Fraudulent Frisco, Gateway, Dismissed after jury
Transfer Galaxy, and verdict
(CUFTA) Dhillon
6 Abuse of Frisco and Dhillon Dismissed by court
Process before trial for lack of
subject matter
jurisdiction
7 Indemnity Frisco and Dhillon Rendered moot by jury
verdict
8 Declaratory All defendants Declaratory judgment
Judgment re: entered after trial in
Bankruptcy favor of Bertoia
Funds
9 Punitive Frisco, Dhillon, Rendered moot by jury
Damages and Galaxy, and verdict
Treble Punitive Gateway
Damages

¶ 11 Shortly before trial, the court entered an order resolving the

parties’ cross-motions for summary judgment on various claims.

The court determined, as a matter of law, that the Hotel Contract

was null and void because the bankruptcy court did not approve

the contract within thirty days of its execution, as required. Thus,

the court entered judgment in favor of Frisco, Dhillon, and Galaxy

and against Bertoia on her claims for breach of the Hotel Contract.

5
¶ 12 In the same order, the trial court concluded that the

“indemnity provision contained in the WPB Contract is valid and

enforceable, and Bertoia is entitled to seek damages as more

fully . . . contemplated in the agreement.” In subsequent

proceedings, Bertoia asserted that the court had entered judgment

in her favor on the issue of Frisco’s liability under the indemnity

provision. Four days after issuing the order, the trial court entered

the following clarifying order:

[Bertoia’s counsel] advised the Court that they
construe one of the Court’s Orders as granting
partial summary judgment on the issue of
liability on [Bertoia’s] indemnity claim. Such
is not the case. The Court determined that the
indemnity provision, like the [WPB] Contract,
is a valid and enforceable provision. The Court
did not and could [not] rule as a matter of law
that Frisco is liable to . . . Bertoia.

Bertoia argues that “Frisco has not and cannot
contend that the [WPB] Contract was
performed. The inquiry need not go beyond
that.” Frisco does not contend it performed
under the [WPB Contract]. Rather, Frisco
contends, among other things, that Frisco was
not able to perform under the agreement or
was prevented from performing and such
inability to perform is a defense to . . .
Bertoia’s contract claim. A finding of liability
is a factual determination. The finder of fact,
the jury, will determine whether or not Frisco

6
breached the [WPB] Contract entitling . . .
Bertoia to recover damages.

¶ 13 The case proceeded to trial. As noted, the jury returned

verdicts in favor of Frisco on Bertoia’s claim for breach of the WPB

Contract and in favor of Frisco and Dhillon on her fraud claims.

Upon receiving the verdicts, plaintiffs’ counsel acknowledged that

they could not proceed on the CUFTA claim in light of the verdicts,

so the court dismissed that claim as moot.

¶ 14 In its written judgment entered on the verdicts, the court

determined that Frisco was the prevailing party under the WPB

Contract. After substantial briefing, the court awarded Frisco

$509,516.61 in attorney fees against Bertoia. The court also

awarded $27,795.42 in costs to Dhillon and Frisco against Bertoia

and WPB.

II. Indemnity Clause

¶ 15 The WPB Contract contained an indemnity provision that

read, in relevant part, as follows:

[Frisco] shall indemnify, defend, and hold
[Bertoia] harmless . . . against all claims,
losses, expenses, and damages, including
interest, penalties, and reasonable attorneys’
fees through all appeals, that [Bertoia] shall

7
incur, which are caused by [Frisco’s] . . .
breach of or failure by [Frisco] to perform.

(Emphasis added.)

¶ 16 Bertoia argues on appeal that the trial court erred by failing to

find that Frisco breached the indemnity provision as a matter of

law. More specifically, Bertoia asserts that because Frisco failed to

close on the WPB contract, Frisco failed to perform the contract,

thus triggering its obligation to indemnify Bertoia for the resulting

losses.

¶ 17 Frisco contends that the trial court correctly concluded that

the indemnity provision was not triggered because it only applied to

claims made against Bertoia by third parties. Additionally, Frisco

argues that it did not fail to perform because its decision to

terminate the WBP Contract was justified based on Bertoia’s failure

to obtain bankruptcy court approval of the Hotel and WPB

Contracts and because Bertoia breached the agreement by pursuing

third-party refinancing and ultimately failing to take the necessary

action to avoid ALC’s foreclosure on the hotel property. As a result,

Frisco argues, WPB no longer owned its sole asset — the hotel —

frustrating the central purpose of the WPB Contract.

8
¶ 18 After setting forth the applicable standard of review and

applicable law, we address the merits of the parties’ contentions.

A. Standard of Review

¶ 19 Contract interpretation is a question of law that we review de

novo. French v. Centura Health Corp., 2022 CO 20, ¶ 24. We review

factual findings for clear error. M.D.C./Wood, Inc. v. Mortimer, 866

P.2d 1380, 1383-84 (Colo. 1994). In interpreting a contract, our

primary obligation is to give effect to the parties’ intent. Quarky,

LLC v. Gabrick, 2024 COA 76, ¶ 11. We do so by giving the words of

the contract their plain and ordinary meaning, avoiding

interpretations that fail to give effect to the terms used by the

parties, and avoiding interpretations that would lead to an absurd

result. Id.

¶ 20 To establish a breach of contract claim, a party must prove

“(1) the existence of a contract; (2) performance by the plaintiff or

some justification for nonperformance; (3) failure to perform the

contract by the defendant; and (4) resulting damages to the

plaintiff.” Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo. App.

2008). Thus, to prevail on a contract claim, the plaintiff must prove

that they performed their end of the bargain. Id. If a plaintiff has

9
breached a material term of the contract, the other party is under

no obligation to perform. See Converse v. Zinke, 635 P.2d 882, 887

(Colo. 1981) (“If one party has failed to perform the bargained for

exchange, the other party may be relieved of a duty to continue its

own performance, where the failure is material and unexcused.”).

Similarly, if a party frustrates an essential purpose of the contract,

the other party is relieved of their obligation to perform. See

Highlands Broadway OPCO, LLC v. Barre Boss LLC, 2023 COA 5,

¶ 13 (“[A] party may be excused from performance under a contract

when the ‘party’s principal purpose is substantially frustrated

without his fault by a fact of which he has no reason to know and

the non-existence of which is a basic assumption on which the

contract is made.’”) (citation omitted). Whether a party has

breached a material term of a contract presents an issue of fact for

the jury. Morris v. Belfor USA Grp., Inc., 201 P.3d 1253, 1258 (Colo.

App. 2008).

B. Analysis

¶ 21 As a threshold matter, we disagree with Bertoia’s argument

that the trial court initially granted her partial summary judgment

on Frisco’s liability under the indemnity provision. As noted, four

10
days after entering its summary judgment order and three days

before trial, the trial court clarified that it had only ruled that the

indemnity provision was valid and enforceable, not that Frisco was

liable under it. The court also made clear that there were disputed

issues of fact regarding whether Frisco breached the contract, or

frustrated its purpose, and that the jury would resolve those factual

issues. This order should have resolved any confusion Bertoia had

about the scope of the initial summary judgment order.

¶ 22 But Bertoia reasserted this same argument in her post-trial

motion to amend the judgment. In denying that motion, the trial

court unequivocally rejected Bertoia’s interpretation of its summary

judgment order, characterizing it as a “tortured or self-serving

interpretation.” As the court again noted, its order merely

recognized that the WPB Contract, including the indemnity

provision, was valid and enforceable and that the jury had to

resolve whether either party had breached the agreement.

¶ 23 Turning to the substance of Bertoia’s argument, she relies on

the second part of the indemnity provision’s disjunctive trigger. In

other words, she does not argue that Frisco breached the WPB

Contract; rather, she argues that Frisco failed to perform the WPB

11
Contract by failing to execute it. Bertoia argues that a “failure to

perform” cannot constitute a breach because that would render the

“failure to perform” language superfluous. Thus, Bertoia asserts,

Frisco is liable for not closing on the WPB Contract, regardless of

whether its decision to terminate was justified by the contract’s

terms. We disagree.

¶ 24 First, the argument does not to give meaning to the word

“failure.” A “failure to perform” means “[a] party’s not meeting its

obligations under a contract.” Black’s Law Dictionary 737 (12th ed.

2024). If Frisco had no contractual obligation to perform, it could

not, by definition, have “failed” to perform the WPB Contract.

¶ 25 Whether Bertoia had breached the WPB Contract or frustrated

its performance was a factual issue that the parties vigorously

disputed. These factual disputes were properly submitted to the

jury. By returning a verdict in favor of Frisco on Bertoia’s claim for

breach of contract, the jury necessarily determined either that

Bertoia had breached the contract — thereby excusing Frisco’s

performance — or that Frisco did not breach. In either event,

Frisco did not fail to fulfill any obligation it had under the WPB

Contract. Thus, its indemnity provision was not triggered.

12
¶ 26 A sensible reading of the WPB Contract’s terms dictates the

same conclusion. The logical extension of Bertoia’s argument is

that Frisco would have been obligated to close on the WPB

Contract, even if Bertoia refused to convey her interest in WPB or

her actions resulted in the loss of WPB’s sole asset. In other words,

Bertoia is arguing that Frisco was required to close the WPB

Contract regardless of whether WPB fulfilled or could fulfill its

obligations thereunder. Bertoia cites no authority to support this

novel interpretation of the indemnity provision, and we are aware of

none. We decline to adopt a construction that would result in such

absurdity. See Quarky, ¶ 11.

¶ 27 Moreover, indemnity clauses are generally triggered when a

third party suffers damages as a consequence of a contracting

party’s failure to perform, and the third party then sues the

nonbreaching contracting party resulting in a loss to the

nonbreaching party. Regency Realty Invs., LLC v. Cleary Fire Prot.,

Inc., 260 P.3d 1, 7 (Colo. App. 2009). In this case, no third party

sued Bertoia or WPB as a result of Frisco’s termination of the WPB

Contract.

13
¶ 28 Thus, we perceive no error in the trial court’s conclusion that

Frisco was not liable to Bertoia as a matter of law under the

indemnity provision and that the factual disputes related thereto

were for the jury to resolve.

III. Bertoia’s Trial Claims

¶ 29 Bertoia argues the trial court abused its discretion when it

precluded evidence from other litigation, specifically evidence of the

Frisco bankruptcy and affidavits from that proceeding.2

A. Excluded Evidence

¶ 30 “A trial court has broad discretion over the admissibility of

evidence.” Bly v. Story, 241 P.3d 529, 535 (Colo. 2010). Therefore,

we review its evidentiary rulings for an abuse of discretion. Id.

¶ 31 Evidence is relevant when it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

2 Bertoia also argues her fraud claim against Dhillon should be

reinstated. She provides no authority to support this argument;
therefore, we do not address it further. See Woodbridge Condo.
Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 44, aff’d, 2021 CO
56.

14
the evidence.” CRE 401; see People v. Wallace, 97 P.3d 262, 267

(Colo. App. 2004).

B. Evidence of Other Litigation

¶ 32 Prior to trial, defendants moved to exclude evidence of the

lawsuit between ALC and Frisco and Frisco’s assignment of its

interest in the hotel to Gateway. The trial court granted the motion,

finding that the subjects were not material to the trial. Bertoia

contends this ruling was an abuse of the trial court’s discretion.

¶ 33 The trial court acknowledged that our evidentiary rules favor

the admission of relevant evidence. See People v. Brown, 2014 COA

155M-2, ¶ 22 (“The Colorado Rules of Evidence strongly favor the

admission of relevant evidence.”). However, the court ultimately

ruled, “These matters are not material or relevant to the claims at

issue under CRE 401 and 402, [and] are outweighed by the

prejudicial value under CRE 403.” See CRE 403 (“Although

relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of

15
cumulative evidence.”). We perceive no abuse of discretion in this

ruling.

C. Kaur’s Affidavits

¶ 34 Bertoia argues that the trial court abused its discretion by

excluding affidavits Kaur submitted in the Frisco bankruptcy case.

Bertoia argues that Kaur’s affidavits contradicted his deposition

testimony.

¶ 35 Bertoia submitted the affidavits to the trial court, and the trial

court excluded them because it determined the affidavits were

hearsay and therefore inadmissible. Bertoia argues on appeal, as

she did in the trial court, that the affidavits are not hearsay under

CRE 801(d)(2)(A),3 as an admission by a party-opponent.

¶ 36 Admissions by a party-opponent are excluded from the

definition of hearsay because they typically do not have the same

reliability issues that other out-of-court statements have.

Burlington N. R.R. Co. v. Hood, 802 P.2d 458, 466-67 (Colo. 1990).

However, Kaur was not a named party in this case. Thus, his

3 Bertoia and WPB do not argue that any of the other exceptions

under CRE 801(d)(2) apply, and we therefore do not address them.

16
affidavits do not qualify as admissions by a party-opponent, and the

trial court did not abuse its discretion by excluding them.

D. Submission of Breach of Contract Claim to Jury

¶ 37 Bertoia and WPB also argue on appeal that the court should

not have submitted the breach of contract claim to the jury. For

the reasons stated above, supra Part II.B, we reject this argument to

the extent that it is based on the contention that there was no

dispute whether Bertoia or Frisco breached the contract.

¶ 38 Bertoia and WPB also appear to contend that the court should

have instructed the jury that the bankruptcy court’s approval of the

WPB Contract was not required. But the trial court did instruct the

jury that it had determined, as a matter of law, that “the contract

between [Frisco] and [Bertoia], two non-debtors, did not require

bankruptcy [court] approval.” Thus, we perceive no error.

E. Defense Counsel’s Closing Argument

¶ 39 Bertoia and WPB also argue that defense counsel

misrepresented Bertoia’s testimony at trial to such an extent that

17
they should be granted a new trial. This issue is unpreserved

because Bertoia did not object to the argument at trial.4

¶ 40 It is well-established Colorado law that new arguments may

not be raised for the first time on appeal. Gold Hill Dev. Co., L.P. v.

TSG Ski & Golf, LLC, 2015 COA 177, ¶ 18. Because Bertoia and

WPB failed to object to defense counsel’s closing argument, the

issue is not preserved, and we decline to address it further.

IV. Federal Preemption of Abuse of Process Claim

¶ 41 Bertoia and WPB asserted an abuse of process claim against

Frisco and Dhillon. The trial court dismissed the claim before trial

on the grounds that it was preempted by federal bankruptcy law.

Bertoia and WPB appeal that ruling.

A. Standard of Review and Applicable Law

¶ 42 The following constitutional mandate is the foundation of our

preemption jurisprudence:

The Supremacy Clause of the U.S.
Constitution provides that “[t]his Constitution,
and the Laws of the United States which shall
be made in Pursuance thereof . . . shall be the
supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing

4 Bertoia does not address the matter of preservation in her opening

brief and does not address this issue at all in her reply brief.

18
in the Constitution or Laws of any State to the
Contrary notwithstanding.”

Middleton v. Hartman, 45 P.3d 721, 731 (Colo. 2002) (quoting U.S.

Const. art. VI, cl. 2). Whether a state law claim is preempted by the

supremacy clause presents a question of law subject to de novo

review. Forfar v. Wal-Mart Stores, Inc., 2018 COA 125, ¶ 47.

¶ 43 “There are three types of federal preemption: express, field,

and conflict.” Colo. Div. of Ins. v. Statewide Bonding, Inc., 2022 COA

67, ¶ 33. “[E]xpress preemption occurs when Congress enacts

legislation that, on its face, expressly preempts state law.” Id.

“Field preemption occurs when Congress enacts legislation that is

so pervasive that it leaves no room for state action or is so

dominant that it precludes the enforcement of state laws on the

same subject.” Id. at ¶ 34. “There are two types of conflict

preemption: when simultaneous compliance with both state and

federal law is impossible, and ‘where the challenged state law

“stands as an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.”’” Id. (citation omitted).

¶ 44 When assessing any preemption question, we adhere to two

fundamental principles. First, Congress’s purpose in enacting the

19
federal legislation is controlling. Fuentes-Espinoza v. People, 2017

CO 98, ¶ 22. Second, we must presume that Congress did not

intend to preempt the historic police powers of the state unless that

was the clear and manifest purpose of the federal legislation. Colo.

Div. of Ins., ¶ 31.

B. Parties’ Contentions

¶ 45 Frisco and Dhillon acknowledge that they filed the Frisco

bankruptcy case to delay the state law litigation and that the

bankruptcy case was ultimately voluntarily dismissed. These

undisputed facts were central to Bertoia and WPB’s abuse of

process claim. The claim also alleged that Frisco and Dhillon

engaged in improper conduct during the bankruptcy proceedings,

including filing false affidavits and improperly bidding up the price

that Bertoia was required to pay to purchase the trustee’s potential

fraudulent transfer claims.

¶ 46 Bertoia and WPB contend that the trial court erred by

dismissing their abuse of process claim because federal law does

not reflect a “congressional intent to preempt all state law abuse of

process remedies.”

20
¶ 47 Frisco and Dhillon counter that the trial court properly

concluded it lacked subject matter jurisdiction to consider the

abuse of process claim because such claims are governed by

bankruptcy law, which is the exclusive province of Congress and

the federal courts. See U.S. Const. art I, § 8, cl. 4; see also In re

L.D. Brinkman Holdings, Inc., 310 B.R. 686, 688 (Bankr. N.D. Tex.

2004) (“Congress has enacted the Bankruptcy Code pursuant to the

power delegated to Congress by Art. I, § 8, cl. 4 of the U.S.

Constitution. When Congress exercises its power under the

bankruptcy clause, the subject of bankruptcy law is exclusively a

matter of federal law.”).

C. Analysis

¶ 48 Bertoia and WPB advance three specific arguments in support

of their contention that the abuse of process claim was not

preempted. First, they argue that Frisco and Dhillon waived a

preemption defense by not asserting it in their answer. Second,

they argue that preemption does not apply to an abuse of process

that occurs during a voluntary bankruptcy case. Lastly, they argue

that preemption is inapplicable because Dhillon was not a debtor in

21
the Frisco bankruptcy proceedings. We address and reject each of

these arguments in turn.

¶ 49 If federal law preempts a state law claim, a state court is

deprived of subject matter jurisdiction to hear the claim. See People

v. Fuentes-Espinoza, 2013 COA 1, ¶ 63 (Casebolt, J., dissenting),

rev’d, 2017 CO 98; see also Thomas v. Fed. Deposit Ins. Corp., 255

P.3d 1073, 1078 (Colo. 2011) (Federal law preempts state

jurisdiction where Congress so provides “by an explicit statutory

directive, by unmistakable implication from legislative history, or by

a clear incompatibility between state-court jurisdiction and federal

interests.” (quoting Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S.

473, 478 (1981))). Because it impacts a court’s jurisdiction to hear

a claim, preemption may be raised at any time. In re Marriage of

McClure, 2024 COA 70, ¶ 7 (“[W]hether the anti-assignment

provision preempts a state court from taking a certain action in a

dissolution proceeding implicates the state court’s subject matter

jurisdiction, and a challenge to subject matter jurisdiction may be

raised at any stage of the proceedings.”). Thus, Dhillon and Frisco

could not and did not waive their preemption argument.

22
¶ 50 Turning to the substance of Bertoia and WPB’s preemption

contentions, we reject their efforts to avoid the reach of cases

holding that preemption precludes state law abuse of process

claims predicated on conduct that occurred in bankruptcy

proceedings. The vast majority of courts to address the issue have

so ruled. See Metcalf v. Fitzgerald, 214 A.3d 361, 370-71 (Conn.

2019) (collecting cases). But see Graber v. Fuqua, 279 S.W.3d 608,

611 (Tex. 2009) (“[A] malicious prosecution claim predicated on

conduct in an adversary proceeding does not fall within the federal

courts’ exclusive . . . jurisdiction.”). These cases generally rely on

four rationales when concluding that state abuse of process claims

are preempted. See Longnecker v. Deutsche Bank Nat’l Tr. Co., 842

N.W.2d 680, 2013 WL 6700312, at *4 (Iowa Ct. App. 2013)

(unpublished table decision).

¶ 51 First, “‘Congress has expressed its intent that bankruptcy

matters be handled in a federal forum by placing bankruptcy

jurisdiction exclusively’ in the federal district courts.” Id. (quoting

MSR Expl., Ltd. v. Meridian Oil, Inc., 74 F.3d 910, 913-14 (9th Cir.

1996)); see 28 U.S.C. § 1334(a) (Except as otherwise provided, “the

[federal] district courts shall have original and exclusive jurisdiction

23
of all [bankruptcy] cases . . . .”). Congress’s delegation of exclusive

jurisdiction over bankruptcy cases to the federal courts is strongly

indicative of its intention to preempt the field. See Fuentes-

Espinoza, 2017 CO 98, ¶ 26 (“Congress’s intent to preempt a

particular field may be inferred ‘from a framework of regulation “so

pervasive . . . that Congress left no room for the States to

supplement it” or where there is a “federal interest . . . so dominant

that the federal system will be assumed to preclude enforcement of

state laws on the same subject.”’” (quoting Arizona v. United States,

567 U.S. 387, 399 (2012))); MSR, 74 F.3d at 913 (“[T]he exclusivity

of federal jurisdiction over bankruptcy matters is an indication of

Congress’s intent” to preempt malicious prosecution claims.).

¶ 52 Second, Congress’s passage of the “complex, detailed, and

comprehensive provisions” of the Bankruptcy Code reflect its intent

“to create a whole system under federal control.” MSR, 74 F.3d at

914 (citing 11 U.S.C. §§ 101-1532). These extensive and

interrelated provisions render it unlikely that Congress

contemplated the “superimposition of state remedies on the many

activities that might be undertaken in the management of the

bankruptcy process.” Id.

24
¶ 53 Third, recognition of federal preemption in the bankruptcy

context promotes the benefits of uniform and predictable

enforcement of bankruptcy laws and procedures. Id. This result is

consistent with the constitutional delegation to Congress of the

power “[t]o establish . . . uniform Laws on the subject of

Bankruptcies throughout the United States.” U.S. Const. art I, § 8,

cl. 4.

¶ 54 Fourth, throughout the Bankruptcy Code, Congress has

authorized several specific remedies designed to prevent the misuse

of the bankruptcy process. Longnecker, 2013 WL 6700312, at *5;

see MSR, 74 F.3d at 915-16. The existence of these remedies

reflects Congress’s intent to preempt state law abuse of process

claims in the bankruptcy arena.

¶ 55 Bertoia and WPB attempt to avoid the reach of these cases by

arguing that they generally arise in circumstances involving

involuntary bankruptcy petitions, where Congress has created an

express and specific remedy for abuse of process claims. See 11

U.S.C. § 303(i)(2) (authorizing an abuse of process claim against a

person who files an involuntary petition in bad faith); see also PNH,

Inc. v. Alfa Laval Flow, Inc., 2011-Ohio-4398, ¶ 3 (finding

25
preemption of a state law claim for abuse of process arising out of

an involuntary bankruptcy case).

¶ 56 But the general bankruptcy provisions also authorize

bankruptcy courts to enter any “judgment that is necessary or

appropriate to carry out the provisions of this title,” including, “sua

sponte, taking any action . . . to prevent an abuse of process.” 11

U.S.C. § 105(a). Nothing in this provision limits its applicability to

involuntary bankruptcy proceedings; therefore, bankruptcy courts’

authority to take any action to prevent an abuse of process is

equally applicable in voluntary bankruptcy proceedings. Moreover,

numerous bankruptcy courts have relied on 11 U.S.C. § 105(a) and

Fed. R. Bankr. P. 9011 to conclude that federal law preempts state

law abuse of process claims arising out of both voluntary and

involuntary bankruptcy proceedings. See Metcalf, 214 A.3d at 365,

370-74 (collecting and discussing preemption cases).

¶ 57 Similarly, we reject plaintiffs’ attempt to limit the scope of

these cases to preempt only abuse of process claims involving

bankruptcy debtors, excluding from preemption all abuse of process

claims involving non-debtors. Nothing in § 105(a) limits a

bankruptcy court’s authority to take any action to prevent an abuse

26
of process committed by a non-debtor. For example, in Astor

Holdings, Inc. v. Roski, 325 F. Supp. 2d 251, 260 (S.D.N.Y. 2003),

the court addressed state law claims alleging that the defendant

misused the bankruptcy process by wrongfully inducing a third

party to seek bankruptcy protection, causing harm to the plaintiff.

In determining the claims were preempted, the court reasoned as

follows:

[T]he Bankruptcy Code contains . . . remedies
for “the misuse of the bankruptcy process” . . .
generally, and thus such misuse is governed
exclusively by that Code. . . . [T]he fact that
the particular defendant in [a] state-law suit
was not the debtor “is a distinction without a
difference,” since preemption entails that a
claim that could have been made, and for
which a remedy is provided, under the
Bankruptcy Code cannot be the subject of
regulation by state statutory or common-law
remedies.

Id. at 262 (alteration omitted) (quoting Choy v. Redland Ins. Co., 127

Cal. Rptr. 2d 94, 103 (Ct. App. 2002)). We find this rationale

persuasive and, for similar reasons, reject Bertoia and WPB’s

argument that the preemption bar only applies to abuse of process

claims asserted against bankruptcy debtors.

27
¶ 58 For these reasons, we conclude that federal law preempted

Bertoia and WPB’s abuse of process claim, and the trial court did

not err by dismissing it.

V. Show Cause Order

¶ 59 In December 2024, this court entered an order permitting

defendants’ counsel to withdraw. The order also stated that Galaxy

and Frisco were “domestic entities authorized to do business in

Colorado” and, “[e]xcept as provided in [section] 13-1-127(2) and

(2.5)[,] C.R.S. 2024, a domestic entity must appear in a court under

the representation of a licensed attorney.” Bertoia v. Denver

Gateway, (Colo. App. No. 23CA2110, Dec. 2, 2024) (unpublished

order). The order continued that, if Galaxy and Frisco intended to

remain part of the appeal, an attorney needed to enter an

appearance on their behalf within twenty-one days of the order, or

they needed to otherwise explain why they were not required to

retain counsel. Id. The order concluded, “Failure to timely

respond . . . shall result in dismissal of [the Frisco and Galaxy

entities] as parties to the appeal, and in dismissal of [Frisco’s]

cross-appeal, without further opportunity to be heard.” No

response or entry of appearance on their behalf was filed.

28
¶ 60 Subsections (2)(a) and (2.5)(b) of section 13-1-127 authorize an

officer of a closely held corporate entity to represent the entity in

litigation and administrative proceedings in which the amount in

controversy does not exceed $15,000 and in workers’ compensation

actions irrespective of the amount in controversy. To proceed

without counsel in such circumstances, the closely held entity must

provide the court, “at or prior to the trial or hearing, with evidence

satisfactory to the court . . . of the authority of the officer to appear

on behalf of the closely held entity in all matters within the

jurisdictional limits set forth in” section 13-1-127. See also § 13-1-

127(2.5)(b) (“[A]ny corporation which is in compliance with the

requirements otherwise imposed on corporations by law may be

represented by any employee of the corporation who is so

authorized by the president or secretary of such corporation, in

proceedings authorized under the ‘Workers’ Compensation Act of

Colorado,’” subject to certain restrictions.).

¶ 61 The amount in controversy in this case exceeded $15,000, and

neither Galaxy nor Frisco provided the necessary authorizations

required by the statute; therefore, these entities could only be

represented in this case by a licensed attorney.

29
¶ 62 Prior to their withdrawal, however, Frisco and Galaxy’s

counsel filed their answer brief and Frisco’s opening brief in

support of its cross-appeal. True, Frisco did not file a reply brief in

the cross-appeal; however, under C.A.R. 28(c), reply briefs “may” be

filed but are not necessary to proceed with an appeal. (Emphasis

added.)

¶ 63 Because the principal briefs were properly submitted before

counsel withdrew, we may proceed to address the merits of Frisco’s

and Galaxy’s contentions, notwithstanding counsel’s withdrawal.

Thus, we conclude there is no basis to dismiss either Frisco or

Galaxy from the appeal or to strike Frisco’s cross-appeal under

these circumstances. We therefore discharge the show cause

order.5

5 We remind litigants, however, that a corporation, unlike a natural

person, “generally cannot appear or act in a judicial proceeding in
person, but must be represented by a licensed attorney.” Keller
Corp. v. Kelley, 187 P.3d 1133, 1136 (Colo. App. 2008). Section 13-
1-127(2), C.R.S. 2024, provides an exception to this rule for certain
closely held entities. In circumstances such as these — when
counsel for the corporate entity has withdrawn after filing the
principal briefs — the corporate entity can only make additional
filings or appearances in the case through counsel, unless it
satisfies the provisions of section 13-1-127(2).

30
VI. Bankruptcy Funds

¶ 64 After the trial court denied Frisco’s motion to dismiss Bertoia’s

breach of contract claim, Frisco filed the Frisco bankruptcy

proceeding under Chapter 7 of the Bankruptcy Code. In that case,

Frisco indicated that it had no assets. During the Frisco

bankruptcy, Bertoia purchased the bankruptcy trustee’s potential

claim against Frisco, Gateway, and Dhillon for fraudulent transfers

arising out of Frisco’s assignment of its rights in the hotel to

Gateway.

¶ 65 Kaur also sought to purchase the trustee’s rights, presumably

to effectively avoid a fraudulent conveyance claim from being

asserted against those involved in the transfer of Frisco’s interest in

the hotel property. The competitive bidding process resulted in

Bertoia paying $755,000 to purchase the trustee’s right to pursue

the fraudulent transfer claims.

¶ 66 Bertoia asserted a fraudulent transfer claim in an adversary

proceeding before the bankruptcy court. On the eve of the

scheduled trial for that claim, the parties stipulated to its dismissal

and the subsequent dismissal of the bankruptcy action. Once the

31
bankruptcy case was dismissed, Bertoia was permitted to proceed

on her CUFTA claim before the trial court.

¶ 67 When the stipulation was filed, a portion of the proceeds from

Bertoia’s purchase of the trustee’s claims — $540,809.95 —

remained in the bankruptcy court’s registry. In advance of the

dismissal of the bankruptcy proceedings, the parties stipulated to

transfer the proceeds to the trial court’s registry. The order

provided as follows:

[P]rior to the dismissal of this case, [trustee’s
counsel] shall file a Motion to Deposit
Bankruptcy Estate Funds with the Court of all
funds remaining in the Bankruptcy Estate into
the Registry of the [trial court] . . . . It is
further

....

ORDERED, ADJUDGED and DECREED that
11 U.S.C. § 349(b)(3) does not apply with
regard to the causes of action sold to Bertoia
under the Sale Order, nor does it apply in any
way to the sale proceeds received in connection
with the Sale Order. It is further

....

ORDERED, ADJUDGED and DECREED that
nothing in the dismissal of this Bankruptcy
Case shall preclude or otherwise affect the
rights of any of the parties in the [trial court
action] or their entitlement to the proceeds
received in connection with the Sale Order,

32
and all parties are barred from using any part
of this Order for an advantage in the [trial
court action].

¶ 68 In explaining the purpose of the motion to dismiss and request

to interplead the remaining bankruptcy proceeds, counsel for the

bankruptcy trustee explained,

[T]his dismissal will allow our local counsel
with the funds remaining to file a motion to
interplead . . . the remaining funds into the
registry of the [trial court] for these parties —
these non-debtor parties to fight about later.

The dismissal order would further provide that
nothing in the dismissal of the bankruptcy will
preclusively or otherwise affect the rights of
the parties in the [trial court] litigation. So the
[bankruptcy trustee’s] final act will be to file a
motion to interplead the funds in [the trial
court]. And we will be done with the case.

¶ 69 The motion to interplead was granted, and the remaining

funds were deposited in the trial court registry.

¶ 70 After the trial, Bertoia filed a motion for a declaratory

judgment that only she was entitled to receive the interpleaded

funds. Frisco opposed the motion, arguing that the funds should

be distributed to it based on bankruptcy law principles. Applying

equitable principles, the trial court entered a declaratory judgment

33
ordering that all funds in the registry be distributed to Bertoia.

Frisco appeals that judgment.

A. Standard of Review and Applicable Law

¶ 71 We review a trial court’s entry of a declaratory judgment for an

abuse of discretion. Nash v. Mikesell, 2024 COA 68, ¶ 15. “A court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, unfair, or based on a misapplication of the law.” Id.

To the extent that the entry of judgment depends on the application

of legal principles, we review such decision de novo. Id.

¶ 72 “The purpose of a court sitting in equity is to promote and

achieve justice with some degree of flexibility.” Garrett v.

Arrowhead Improvement Ass’n, 826 P.2d 850, 855 (Colo. 1992).

“[T]he exercise of equitable jurisdiction requires an inquiry into the

particular circumstances of the case.” Id. Equitable remedies are

within the trial court’s discretion, and we review for an abuse of

that discretion. Wilson v. Prentiss, 140 P.3d 288, 293 (Colo. App.

2006).

B. Analysis

¶ 73 Frisco argues that the trial court erred by not distributing the

bankruptcy funds in accordance with 11 U.S.C. § 726. It asserts

34
that when Bertoia purchased the trustee’s rights, the money she

paid for that purchase became part of the bankruptcy estate. Once

the bankruptcy case was dismissed, Frisco’s argument continues,

the funds should have been distributed to it, as the debtor,

pursuant to § 726(a)(6) (After the payment of allowed creditors’

claims, “property of the estate shall be distributed . . . to the

debtor.”). Indeed, Frisco argues that the stipulated order “makes

clear that the [distribution] analysis should not be impacted by the

dismissal of the bankruptcy.”

¶ 74 We reject Frisco’s argument for multiple reasons. First, it is

inconsistent with the terms of the stipulated order, which provides

that “nothing in the dismissal of this Bankruptcy Case shall

preclude or otherwise affect the rights of any of the parties in [the

trial court action]” and that “all parties are barred from using any

part of [the stipulated order] for an advantage in [the trial court

action].” Thus, we reject Frisco’s argument that the stipulated

order dictated how the interpleaded funds were to be distributed.

¶ 75 We also reject Frisco’s argument that the stipulated order

suggests or implies that the funds should be distributed pursuant

to § 726(a)(6) or any other Bankruptcy Code provision. Nothing in

35
the stipulated order so provides or even suggests. In addition,

§ 726(a)(6) applies only when funds remain part of the estate at the

time the bankruptcy is dismissed. But because of the stipulated

order and the resulting interpleader, no funds remained in the

estate at the time of the dismissal of the bankruptcy case. Thus, by

its own terms, 11 U.S.C. § 726(a)(6) is not applicable.

¶ 76 For similar reasons, we reject Frisco’s argument that the

stipulated order simply effectuated a change of venue, with the

understanding that the trial court would have the responsibility of

distributing the interpleaded funds in accordance with bankruptcy

law. That argument fails for two reasons. First, federal courts are

the exclusive venue for resolving bankruptcy proceedings and

administering bankruptcy law. See Maryland v. Antonelli Creditors’

Liquidating Tr., 123 F.3d 777, 787 (4th Cir. 1997) (Congress has

exercised its “constitutionally authorized legislative power to make

federal courts the exclusive venue for administering the bankruptcy

law.”). Second, the bankruptcy court could have applied § 726(a)(6)

at the time of dismissal, had that been its or the parties’ intent.

But it did not do so. Instead, the bankruptcy court deferred

36
resolution of the issue to the trial court, unencumbered by any

obligation to interpret or apply bankruptcy law in doing so.

¶ 77 Given these circumstances, we agree with the trial court that

the decision of how to distribute the disputed funds was left to its

authority. We also agree with the court that, absent a designated

standard, the distribution issue was best governed by equitable

principles. And this is precisely how the trial court proceeded:

Frisco now seeks an order from this Court
directing payment to it of funds received from
the sale of an asset which had originally
belonged to Plaintiffs. . . .

Frisco is essentially asking this Court to
convert Bertoia’s fraud claim against it into a
more than half million-dollar payout in its
favor, in exchange for nothing. . . . To
countenance such a result would be to
condone a perverse inversion of the
bankruptcy process and, more to the point for
the purposes of this motion, an inequitable
result.

¶ 78 We agree with the trial court that it would be inherently

inequitable to award the disputed funds to Frisco. Frisco

represented that it had no assets when it filed for bankruptcy.

Before the Frisco bankruptcy was initiated, Bertoia had the right to

bring a fraudulent conveyance claim against Frisco, Gateway, and

37
Dhillon. Indeed, Frisco concedes that it initiated the bankruptcy

proceedings to avoid or frustrate such a claim. After the Frisco

bankruptcy was filed, Bertoia sought to purchase the trustee’s right

to assert a potential fraudulent transfer claim. Because Frisco’s

sole owner bid up the sale price, Bertoia was ultimately required to

pay the inflated sum of $755,000 to reacquire the claim. The

disputed funds thus came solely from Bertoia. And there were no

Frisco creditors that claimed any interest in the proceeds.

¶ 79 Given these dynamics, the trial court did not err by concluding

that distribution of the disputed funds to Frisco would have

resulted in an inappropriate and unjust windfall, while distributing

those funds to Bertoia would produce a fair and equitable result.

Thus, we perceive no abuse of discretion in the trial court’s logic or

its award of the funds to Bertoia.

VII. CUFTA Dismissal

¶ 80 While not entirely clear, it appears Bertoia contends that she

did not voluntarily dismiss her CUFTA claim. The CUFTA claim

was bifurcated and held in abeyance pending completion of the jury

trial. Based on the defense verdicts, the trial court asked Bertoia’s

counsel about the status of the CUFTA claim:

38
THE COURT: And I’m looking at [section] 38-8-
105, [C.R.S. 2024,] the Colorado Uniform
Fraudulent Transfer Act; is that also moot?

BERTOIA’S COUNSEL: Yes. We had to have a
judgment of damages.

THE COURT: All right. Those two, then, are
dismissed. And do you want to — I’ll do it on
motion. Or is this sufficient to make a record.
Sir?

BERTOIA’S COUNSEL: No, Your Honor, I think
it’s sufficient on those two claims right now.
I’d like to process this as far as post-trial
motions go.

¶ 81 In later briefing related to a lis pendens, Bertoia’s counsel

argued that he did not voluntarily dismiss the CUFTA claim, but he

also admitted that the CUFTA claim could only be pursued by

Bertoia if she was a creditor of Frisco. And Bertoia’s counsel

argued that if a post-trial motion was granted or if the verdict in

Frisco’s favor were reversed on appeal, then Bertoia could still

potentially qualify as a creditor and could then pursue her CUFTA

claim. But the trial court did not grant Bertoia post-trial relief, and

we affirm the judgment entered against Bertoia on her other claims.

Thus, by her counsel’s admission, Bertoia is not a creditor, and

therefore, she cannot pursue her CUFTA claim.

39
¶ 82 We therefore discern no justiciable controversy on this issue,

and we decline to address it further. See Cacioppo v. Eagle Cnty.

Sch. Dist. RE-50J, 92 P.3d 453, 467 (Colo. 2004) (“Because there is

no existing controversy . . . , we conclude that this issue is not

justiciable and we decline to address it.”).

VIII. Fees and Costs

¶ 83 Finally, we turn to the parties’ contentions regarding the trial

court’s awards of attorney fees and costs to the prevailing parties.

A. Trial Fees and Costs

1. Standard of Review and Applicable Law

¶ 84 “A trial court has broad discretion in determining whether to

award attorney fees, and absent a showing of an abuse of that

discretion, we will not disturb its decision.” Fontanari v. Snowcap

Coal Co., 2023 COA 29, ¶ 9. We also review the trial court’s

decision to admit expert testimony for an abuse of discretion. See

Luster v. Brinkman, 205 P.3d 410, 413-14 (Colo. App. 2008) (Trial

courts are “vested with broad discretion to determine the

admissibility of expert testimony.”). As mentioned, a trial court

abuses its discretion if the decision is “manifestly arbitrary,

40
unreasonable, or unfair.” Planning Partners Int’l, LLC v. QED, Inc.,

2013 CO 43, ¶ 12.

¶ 85 An award of attorney fees must be reasonable. Crow v.

Penrose-St. Francis Healthcare Sys., 262 P.3d 991, 998 (Colo. App.

2011). In cases involving a prevailing-party attorney fees provision

that applies to only some of the asserted claims, if the issues are

“sufficiently intertwined and inter-related,” fee apportionment is not

required. Planning Partners, ¶ 27. When determining the

reasonableness of an award of fees, the trial court usually

calculates the lodestar amount, which represents the number of

hours an attorney reasonably expended on the case multiplied by a

reasonable hourly rate. Payan v. Nash Finch Co., 2012 COA 135M,

¶ 18. Alternatively, in lieu if a lodestar calculation, the court may

conduct its fee analysis by initially accepting the amount billed by

counsel for the claiming party. Id. at ¶ 22.

2. Analysis

¶ 86 Bertoia and WPB make several underdeveloped arguments in

their opening brief regarding the trial court’s award of attorney fees.

¶ 87 First, they argue that the trial court abused its discretion by

awarding fees and costs to Frisco because it applied only the WPB

41
Contract’s fee-shifting provision and failed to consider the contract’s

indemnity clause. As discussed at length above, the indemnity

provision did not apply in this case because Frisco did not breach

the contract or otherwise fail to perform. Therefore, we look to the

contract’s fee-shifting provision to review the trial court’s fees and

cost awards.

¶ 88 In the event of litigation over its enforcement, the WPB

Contract states that the “prevailing party shall be entitled to recover

reasonable attorneys’ fees and other costs incurred in that action or

proceeding.” In its amended order on fees and costs, the trial court

determined that Frisco and Dhillon were the prevailing parties at

trial because the jury returned verdicts in their favor on all three

claims against them.

¶ 89 Bertoia and WPB argue that the trial court should have

apportioned the fees in two ways: First, they argue that the fees

should have been apportioned by the hours of work expended to

defend Frisco and the hours expended to defend Dhillon and

Galaxy. Second, they argue that the fees awarded to Frisco should

have been restricted to only the breach of contract claim, not the

other claims alleged in the case. We disagree.

42
¶ 90 The trial court determined that the fee-shifting provision’s

broad language applied to claims to enforce the contract and also to

disputes, defaults, or misrepresentations in connection with any

provision of the contract. The court found that the three claims

presented at trial were “inextricably intertwined and interrelated

such that they arise out of the same common factual circumstances

and legal theories.” It also stated: “The Court is cognizant that the

fraudulent omission claim was not asserted directly against Frisco

but finds that the same evidence, examinations, and arguments

were necessary to defend against the claim.” We perceive no error

in the trial court’s determination that the claims were inextricably

linked, and therefore, there was no need to apportion the attorney

fees.

¶ 91 Bertoia and WPB also argue that the billing statements

provided by Frisco’s counsel were “unsworn statements” and should

not have been utilized by the court to determine the reasonableness

of the requested fees. However, this argument was not preserved

before the trial court, so we do not address it further. See Gold Hill,

¶ 18 (“Arguments not raised before the trial court may not be raised

43
for the first time on appeal.” (quoting Am. Fam. Mut. Ins. Co. v.

Allen, 102 P.3d 333, 340 n.10 (Colo. 2004))).

¶ 92 Finally, Bertoia and WPB argue that the trial court should

have allowed their expert to testify as to the reasonableness of the

claimed fees and costs. The trial court evaluated the proffered

expert testimony but concluded that it was “rudimentary, at best,

and did not involve a lodestar analysis or application of the [Colo.

RPC] 1.5 factors” and that the expert “did not qualify as an expert

in Colorado under [CRE] 702.” On appeal, Bertoia and WPB fail to

explain why this conclusion is unsupported. Given the trial court’s

broad discretion regarding expert testimony, we perceive no abuse

of discretion in this determination. See Luster, 205 P.3d at 413.

¶ 93 After reviewing the motion for fees and costs, considering the

supplemental affidavit of Frisco’s counsel opining that the claimed

fees were reasonable, and hearing testimony from Frisco’s expert

witness, the court properly accepted the billed amount as an

appropriate starting point. See Payan, ¶ 22. The court then

considered each of the Colo. RPC 1.5 factors and concluded no

adjustment to the billed amount was warranted. Given the trial

court’s familiarity with this case and how it was tried, we perceive

44
no abuse of discretion in the trial court’s determination that Frisco

was the prevailing party or its calculation of the award of fees and

costs. See Payan, ¶ 35 (“‘[A]ppellate courts must give substantial

deference to these determinations, in light of ‘the district court’s

superior understanding of the litigation.’ We can hardly think of a

sphere of judicial decisionmaking in which appellate

micromanagement has less to recommend it.” (quoting Fox v. Vice,

563 U.S. 826, 838 (2011))). We therefore affirm the trial court’s

award of fees and costs to Frisco and its award of costs to Frisco

and Dhillon.

B. Appellate Fees and Costs

¶ 94 Both Bertoia and Frisco request appellate attorney fees.

Because Frisco is the prevailing party on appeal, it is therefore

entitled to an award of fees and costs incurred on appeal. See

Kennedy v. King Soopers Inc., 148 P.3d 385, 390 (Colo. App. 2006)

(“When a party is awarded attorney fees for a prior stage of the

proceedings, it may recover reasonable attorney fees and costs for

successfully defending the appeal.”).

¶ 95 Because the trial court is uniquely suited to undertake the

factfinding necessary to determine the amount of such an award,

45
we exercise our discretion and remand to the trial court to

determine and award Frisco its appellate attorney fees and costs

under C.A.R. 39.1 and C.A.R. 39(c)(1).

IX. Disposition

¶ 96 We affirm the trial court’s judgments and orders and remand

this matter to the trial court to determine and award Frisco its

reasonable appellate attorney fees under the WPB Contract.

JUDGE WELLING and JUDGE KUHN concur.

46