Sweet v. Dodson

25CA0324 Sweet v Dodson 05-07-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0324
Arapahoe County District Court No. 20CV32068
Honorable Thomas Henderson, Judge

James Sweet and Mary Sweet,

Plaintiffs-Appellants,

v.

William Dodson and Janis Dodson,

Defendants-Appellees.

ORDER AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE SCHOCK
Grove and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 7, 2026

First & Fourteenth PLLC, Julian R. Ellis, Jr., Colorado Springs, Colorado; First
& Fourteenth PLLC, Michael Francisco, Washington, D.C., for Plaintiffs-
Appellants

Snell & Wilmer, L.L.P., Byeongsook Seo, Denver, Colorado, for Defendants-
Appellees
¶1 Plaintiffs, James and Mary Sweet (the Sweets), appeal the

order awarding attorney fees to defendants, William and Janis

Dodson (the Dodsons), under section 13-17-102, C.R.S. 2025. They

contend that the district court erred by (1) finding the action lacked

substantial justification; (2) failing to make required findings under

section 13-17-103(1), C.R.S. 2025; and (3) admitting evidence of

another property dispute between the Sweets and a neighbor.

¶2 We affirm the order to the extent the district court found

under section 13-17-102 that the Sweets brought or defended this

action, in whole or in part, without substantial justification. But we

conclude that the district court erred by failing to consider and

make findings concerning the factors in section 13-17-103(1) in

determining whether to assess attorney fees and the amount of fees

to be assessed. We therefore reverse the attorney fee order in part

and remand the case for the district court to make those findings.

I. Background

¶3 The Sweets and Dodsons are next-door neighbors. In 2015,

the Sweets began a major backyard renovation that would blur the

property lines between their property and the Dodsons’. The

Dodsons agreed to the project with certain conditions, including

1
that the property lines would not change and that the Sweets would

memorialize the arrangement in a written agreement.

¶4 The Sweets did not provide the Dodsons with a draft

agreement until the project was nearly complete. By then, the

neighbors’ relationship had become strained. The Dodsons refused

to sign the agreement because it included terms the parties had

never discussed while omitting terms they had agreed upon.

¶5 The Sweets then launched what the district court described as

a “campaign to pressure the Dodsons into executing later versions

of the [d]raft [a]greement.” That campaign escalated into conduct

that the district court characterized as “harassment and stalking.”

The Dodsons never signed the agreement and, in April 2020,

revoked their permission for the Sweets to enter their property.

A. Trial Proceedings

¶6 The Sweets sued the Dodsons, asserting claims for implied

easement, interference with easement, boundary establishment,

promissory estoppel, unjust enrichment, conversion, and civil theft.

At bottom, the Sweets claimed ownership of the landscaped area on

the Dodsons’ property and sought damages arising from the

Dodsons’ contrary claim. The Sweets also recorded a lis pendens

2
against the Dodsons’ property, prompting a lender to cancel the

Dodsons’ pending refinance application. The Dodsons responded

with counterclaims for quiet title, injunctive relief, fraud, abuse of

process, extreme and outrageous conduct, trespass, and nuisance.

¶7 The district court granted summary judgment or judgment on

the pleadings in favor of the Dodsons on all of the Sweets’ claims

except unjust enrichment. In its partial summary judgment order,

the court concluded: “The Sweets, as evidenced by their behavior

during this litigation, continue a crusade against the Dodsons that

can at best be characterized as misguided and at worst without

legal support and vexatious. The Sweets’ [r]esponse lacks citation

to the evidence and is filled with conclusory statements.”

¶8 The case went to a bench trial on the Sweets’ unjust

enrichment claim and the Dodsons’ counterclaims. The Sweets,

though represented by counsel when they filed the action, appeared

pro se at trial (as they had for summary judgment). After trial, the

court entered judgment in favor of the Dodsons on all claims,

granting their requested permanent injunction and awarding them

approximately $75,000 in damages. But it denied their request for

3
exemplary damages, finding that they had not proved beyond a

reasonable doubt that the Sweets’ conduct was willful and wanton.

¶9 The court also awarded the Dodsons their attorney fees and

costs under section 13-17-102, explaining as follows:

[T]he Sweets’ claims, defenses, and litigation
tactics were “frivolous, substantially
groundless, or substantially vexatious.”
Indeed, this [c]ourt previously found the
Sweets’ claims can “at best be characterized as
misguided and at worst without legal support
and vexatious.” . . . After hearing all the
evidence at trial, the [c]ourt concludes that the
Sweets’ claims were in fact largely without
legal support and vexatious.

The court later determined the amount of the fee award to be

$476,229.74 — about $17,000 less than the Dodsons requested.

B. Sweet I

¶ 10 The Sweets appealed the judgment and the attorney fee award.

A division of this court affirmed the judgment but reversed the fee

award. Sweet v. Dodson, slip op. at ¶ 11 (Colo. App. No. 22CA1134,

Oct. 5, 2023) (not published pursuant to C.A.R. 35(e)) (Sweet I).

¶ 11 As to the merits of the parties’ claims, the division concluded

that the district court had correctly granted summary judgment on

the Sweets’ claims and ruled in favor of the Dodsons on their

4
counterclaims following trial. Although the division noted in a

couple places that the evidence at trial might have supported

contrary findings, it concluded that the district court’s findings

were amply supported by the record. See id. at ¶¶ 46, 59.

¶ 12 As to the attorney fee award, the division first noted that “[t]he

entirety of the trial court’s reasoning” for awarding attorney fees

consisted of the three sentences quoted above and that the later

order regarding the amount of fees “didn’t offer any additional

reasoning on the Dodsons’ entitlement to fees.” Id. at ¶ 80. The

division then concluded that the district court had erred by failing

to make the finding required by section 13-17-102(6) — that the

Sweets, as pro se parties, “clearly knew or reasonably should have

known that their claims and defenses were substantially frivolous,

substantially groundless, or substantially vexatious.” Id. at ¶ 81.

¶ 13 Thus, the division remanded the case to the district court to

“consider and make findings as to whether the Sweets clearly knew

or reasonably should have known that their claims and defenses

were substantially frivolous, substantially groundless, or

substantially vexatious and, thus, whether the Dodsons are entitled

to recover attorney fees under [section] 13-17-102.” Id. at ¶ 83.

5
C. Remand Proceedings

¶ 14 On remand, the Sweets filed a motion to determine the scope

of the attorney fee hearing. They argued that the hearing should

encompass the full scope of the section 13-17-102 analysis,

including (1) whether the Sweets’ claims and defenses lacked

substantial justification and (2) consideration of the factors in

section 13-17-103(1). The Dodsons countered that the division’s

mandate in Sweet I barred consideration of those issues and that

the sole question on remand was whether the Sweets clearly knew

or reasonably should have known that their claims and defenses

were substantially frivolous, groundless, or vexatious.

¶ 15 The district court agreed with the Dodsons. It concluded:

This [c]ourt interprets the Court of Appeals’
mandate to not include the determination of
whether the Sweets[’] claims and defenses were
substantially frivolous, groundless or
vexatious. That decision was already made by
the trial court and was not within the scope of
the remand. Rather, the scope of the remand,
and hence of the . . . hearing, is limited to the
narrow issue of whether, while the Sweets
were unrepresented by counsel, they clearly
knew or reasonably should have known that
their claims and defenses were substantially
frivolous, groundless or vexatious.

6
¶ 16 After a hearing, the district court found that the Sweets clearly

knew or should have known that their actions in the case were

substantially groundless, frivolous, and vexatious, and it reinstated

the fee award. In doing so, it incorporated its prior findings of fact

after trial and identified several actions by the Sweets that it found

to be substantially vexatious. It also concluded that the affirmance

of the judgment in Sweet I supported its prior finding that the

Sweets’ claims and defenses lacked legal and factual support.

II. Scope of Appeal

¶ 17 The Dodsons attempt to cut this appeal off at the pass in two

ways. First, they argue that the Sweets’ challenges to the fee award

are foreclosed by the mandate rule because Sweet I limited the

remand to what the Sweets knew or should have known. Second,

they assert that the Sweets waived their arguments by failing to

include them in their petition for certiorari to the supreme court

and stipulating to the dismissal of their separate appeal of the fee

award after Sweet I was announced. We disagree on both points.

A. Mandate

¶ 18 The mandate rule requires a district court to “follow the law of

the case as laid out by an appellate tribunal.” Thompson v. Caitlin

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Ins. Co. (UK), 2018 CO 95, ¶ 21. This includes the appellate court’s

“[c]onclusions . . . on issues presented to it as well as rulings

logically necessary to sustain such conclusions.” Owners Ins. Co. v.

Dakota Station II Condo. Ass’n, 2021 COA 114, ¶ 24 (citation

omitted). Moreover, “[w]hen a case is remanded to the [district]

court and subsequently appealed, the reviewing court will consider

only those issues arising after the remand and whether the [district]

court complied with the order of remand.” Simpson v. Yale Invs.,

Inc., 886 P.2d 689, 699 (Colo. 1994). We review de novo whether

the district court followed the appellate mandate. Thompson, ¶ 20.

¶ 19 We disagree with the Dodsons that Sweet I affirmed any

portion of the attorney fee order or limited the scope of the attorney

fee proceedings on remand. The division in Sweet I reversed the fee

award, concluding that it “cannot stand.” Sweet I, slip op. at ¶ 81.

Although its primary basis for that holding was the lack of findings

under section 13-17-102(6), the division did not suggest — much

less decide — that the district court’s findings were otherwise

sufficient. See Kuhn v. State, Dep’t of Revenue, 897 P.2d 792, 795-

96 (Colo. 1995) (holding that mandate rule did not apply to issue

that “was not decided” in prior appeal); Hardesty v. Pino, 222 P.3d

8
336, 341 (Colo. App. 2009) (holding that party “cannot escape the

broad appellate holding by limiting it to its specific rationale”). To

the contrary, it suggested those findings were not sufficient,

highlighting the brevity of the district court’s stated rationale.

¶ 20 Nor did the prior division’s focus on section 13-17-102(6) limit

the question on remand to that of the Sweets’ knowledge. The

Sweets argued in the prior appeal that the district court had failed

to make sufficient findings under section 13-17-102, including as to

the section 13-17-103(1) factors and the heightened pro se

standard of section 13-17-102(6). Because the division agreed with

the Sweets’ argument under section 13-17-102(6) and reversed the

fee award on that basis, it did not need to address the other claimed

deficiencies in the district court’s order. And understandably, its

remand instructions highlighted the error it had identified.

¶ 21 But in choosing that path, the division did not tacitly take the

other findings off the table. Instead, it reversed the fee award and

directed the district court to consider “whether the Dodsons are

entitled to recover attorney fees under [section] 13-17-102.”

Sweet I, slip op. at ¶ 86; see also Sharon v. SCC Pueblo Operating

Co., 2019 COA 178, ¶ 17 (“[W]hen an appellate court reverses a

9
judgment, ‘upon remand, that judgment no longer exists.’” (citation

omitted)). The district court could not make that determination

without conducting the analysis that statute requires. See Roberts

v. Bruce, 2018 CO 58, ¶ 12 (noting that section 13-17-102(6) does

not “provide an independent basis to award attorney’s fees”).

¶ 22 Moreover, even if we were to construe the Sweet I mandate as

limiting the remand to resolution of the section 13-17-102(6) issue,

the district court reinstated the original fee award after making

those findings. Thus, the original fee award — not just the order on

remand — is at issue in this appeal. In reviewing that order, we

may address any challenges to that order that were raised and not

decided in the prior appeal. See Kuhn, 897 P.2d at 795-96.

B. Waiver

¶ 23 We also reject the Dodsons’ argument that the Sweets waived

their challenges to the district court’s findings by (1) failing to

include these issues in their petition for certiorari after Sweet I and

(2) agreeing to dismiss a separate appeal of the fee award.

¶ 24 Because Sweet I reversed the fee award, the Sweets had no

reason to seek further review of that award in the Colorado

Supreme Court. Nor did they have any reason to pursue a

10
duplicative appeal of that award to this court. In short, they had

won on that issue — albeit, on only one of the multiple grounds for

reversal they had raised. Thus, the Sweets’ decision to pursue their

arguments in the district court on remand, while limiting their

petition for certiorari to issues on which they had not prevailed, did

not constitute an “intentional relinquishment” of those arguments.

Bernache v. Brown, 2020 COA 106, ¶ 10 (citation omitted).

III. Attorney Fee Award

¶ 25 The Sweets challenge the attorney fee award on two grounds.

They argue that the district court abused its discretion by

(1) finding that the action “lacked substantial justification” and

(2) failing to make the required findings under section 13-17-103(1).

¶ 26 We disagree with the Sweets’ first argument but agree with

their second. We therefore reverse the attorney fee award and

remand the case to the district court for the sole purpose of making

findings under section 13-17-103(1) as to whether the fee award is

justified and the amount of fees to be assessed.

A. Applicable Law and Standard of Review

¶ 27 A court may award attorney fees if it finds that a party

“brought or defended an action, or any part of an action, that

11
lacked substantial justification.” § 13-17-102(4). An action or

defense lacks substantial justification when it is “substantially

frivolous, substantially groundless, or substantially vexatious.”

§ 13-17-101.5(1), C.R.S. 2025. “Substantially frivolous” means the

party can present “no rational argument” in support. Mulberry

Frontage Metro. Dist. v. Sunstate Equip. Co., 2023 COA 66, ¶ 42

(citation omitted). “Substantially groundless” means “not supported

by any credible evidence.” Id. (citation omitted). And “substantially

vexatious” means the action is “brought or maintained in bad faith

to annoy or harass another.” Id. (citation omitted). As already

noted, when a party is pro se — as the Sweets were for much of this

litigation — the court must also find that the party “clearly knew or

reasonably should have known” that their action or defense was

substantially frivolous, groundless, or vexatious. § 13-17-102(6).

¶ 28 The first step of the analysis is “to determine whether the

action in question (or any part thereof) ‘lacked substantial

justification.’” Munoz v. Measner, 247 P.3d 1031, 1034 (Colo.

2011). If the court finds that it did, it must make specific findings

explaining why. In re Marriage of Aldrich, 945 P.2d 1370, 1379

(Colo. 1997). Conclusory statements do not suffice. Id.

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¶ 29 The court must then consider the factors in section

13-17-103(1) “in determining whether to assess attorney fees . . .

and the amount of fees to be assessed.” Although the court need

not address factors that are not relevant, it “must make findings

that reflect how the relevant factors under section 13-17-103

support the conclusion that the offending party . . . engaged in

improper conduct.” Aldrich, 945 P.2d at 1379. It also must enter

findings on those factors to explain the amount of fees awarded. Id.

¶ 30 We review an award of attorney fees under section 13-17-102

for an abuse of discretion. In re Marriage of Tognoni, 313 P.3d 655,

660-61 (Colo. App. 2011). But we review the district court’s legal

analysis de novo. Id. at 661. A court abuses its discretion when it

awards attorney fees without making specific findings under section

13-17-103(1). Padilla v. Ghuman, 183 P.3d 653, 662 (Colo. 2007).

B. Lack of Substantial Justification

¶ 31 We first note that the district court said it would not address

on remand whether the Sweets’ claims and defenses were

substantially frivolous, groundless, or vexatious, deeming that issue

as beyond the scope of the Sweet I mandate. But the Sweets

13
appear to concede, and we agree, that the court made such findings

nonetheless. We perceive no abuse of discretion in those findings.

1. Substantially Vexatious

¶ 32 In its order on remand, the district court found that the

Sweets “knowingly and intentionally acted vexatiously in bringing

and maintaining this lawsuit.” It identified six pre-filing actions

that showed the Sweets “brought” the action in bad faith and four

post-filing actions that showed they “maintained” it in bad faith.

¶ 33 Those actions included (1) refusing to agree to a dog-proof

fence and acting as if the Dodsons had fabricated that requirement,

despite always understanding the Dodsons required one;

(2) drafting a proposed agreement that did not include the agreed-

upon terms; (3) threatening the Dodsons with legal action if they

did not sign the draft agreement; (4) filing a baseless police report

against the Dodsons; (5) threatening the Dodsons’ daughter’s dog-

sitting business for the sole purpose of persuading the Dodsons to

release their rights; (6) surveilling the Dodsons’ property with

drones under the guise of the lawsuit without any legitimate reason

for doing so; (7) recording a lis pendens against the Dodsons’

property and refusing to release it, even after all property-related

14
claims had been dismissed; (8) refusing to participate in a survey to

resolve the property boundaries; (9) targeting the Dodsons’

daughter’s dog-sitting business in discovery; and (10) attempting to

intimidate, bully, or threaten the Dodsons and their counsel.

¶ 34 The Sweets do not challenge any of these factual findings.

Instead, they take issue only with the conclusion the district court

drew from them — that the Sweets brought this action in bad faith.

They assert that the action was a “good-faith effort to adjudicate a

property dispute.” But that was a question for the district court.

See Tognoni, 313 P.3d at 660-61 (noting district court’s “broad

discretion” in determining whether to award attorney fees).

Because we conclude that these facts can reasonably support the

district court’s determination, we will not disturb it. See id. at 661.

¶ 35 The Sweets also challenge the district court’s reliance on a few

specific actions, asserting that they had a good-faith basis for those

actions. For example, they argue that the lis pendens was

appropriate because their claims concerned property rights — while

overlooking the district court’s finding that they refused to release

the lis pendens after those claims were dismissed. They assert that

seeking discovery from the Dodsons’ daughter was proper because

15
she was listed in the Dodsons’ initial disclosures — even though the

district court’s concern was with their targeting of the daughter’s

business. And they claim their refusal of the survey was reasonable

because a survey could not resolve their easement claim — even

though their boundary establishment claim sought to fix the

boundary line as it had been “recognized or acquired” for more than

forty years. The Sweets also contend that their prelitigation

conduct is irrelevant to whether the action was brought in bad faith.

¶ 36 Each of these challenges misses the overall thrust of the

district court’s ruling. The district court found that the Sweets’

pattern of behavior — viewed as a whole — supported a finding that

they brought and maintained the action in bad faith. See Padilla,

183 P.3d at 664 (affirming district court’s finding that “the whole

case of [p]laintiffs, and their entire course of conduct” was

vexatious). And the entirety of the Sweets’ conduct before and

during the litigation — including conduct that might appear

justified in isolation — could bear on that question. To the extent

the Sweets claim a good-faith basis for certain of the actions the

district court identified, that may be an appropriate consideration

under section 13-17-103(1). But it does not undermine the court’s

16
threshold determination that the action, or any part of it, was

“brought or maintained in bad faith to annoy or harass [the

Dodsons].” Mulberry Frontage Metro. Dist., ¶ 42 (citation omitted).1

2. Substantially Frivolous or Groundless

¶ 37 Although the district court’s finding of vexatiousness could

alone support a fee award, the court also found that the Sweets’

claims and defenses were substantially frivolous or groundless. It

found that the claims were “without legal or factual support,” that

the Sweets “offered no credible evidence” to prove their claims, and

that “[t]he same is true for the Sweets’ defenses.”

¶ 38 The Sweets assert that the district court found their claims

frivolous or groundless simply because they did not prevail. And it

is of course true that a claim need not be meritorious to have a

rational basis. See Munoz, 247 P.3d at 1035 (“[S]imply because a

claim lacks merit does not mean that it was frivolous, groundless,

or vexatious . . . .”). But the court did not award attorney fees

1 The Sweets assert that the district court made no findings as to

how their litigation conduct “unnecessarily expanded the
proceeding.” § 13-17-102(4), C.R.S. 2025. But that is simply one
alternative basis for awarding fees, not a necessary condition. See
id. (providing that court may award fees if action lacked substantial
justification or party unnecessarily expanded proceeding).

17
merely because the Sweets lost. It awarded fees because it found

their claims had no legal or factual support — i.e., the Sweets could

“present no rational argument based on the evidence or law in

support.”2 Mulberry Frontage Metro. Dist., ¶ 42 (citation omitted).

The record supports that finding. See Argo v. Hemphill, 2022 COA

104, ¶ 51 (“The district court is in the best position to conduct this

analysis because ‘[w]hether a claim lacked substantial justification

is a question of fact for the trial court.’” (citation omitted)).

¶ 39 For example, the Sweet I division agreed with the district court

that the Sweets presented no evidence that “would support a

reasonable belief that the permission to enter or remain in the

Dodsons’ yard was irrevocable,” or that the Dodsons made any

promise on which the Sweets could reasonably rely. Sweet I, slip

op. at ¶¶ 21, 31. To the contrary, the division detailed evidence

indicating that the permission was revocable at any time. See id. at

¶¶ 22-25. The division also concluded that the record supported

2 We do not see the same daylight the Sweets do between the

district court’s finding that their claims were “without legal or
factual support,” and the division’s requirement in Mulberry that
the party present “no rational argument based on the evidence or
law in support of [it].” Mulberry Frontage Metro. Dist. v. Sunstate
Equip. Co., 2023 COA 66, ¶ 42 (citation omitted).

18
the district court’s finding that the Sweets “could not have believed

they had a legitimate claim to support the lis pendens.” Id. at ¶ 46.

And the district court concluded that the evidence directly refuted

the Sweets’ claims for conversion and civil theft, given that the

Dodsons never refused to return the Sweets’ property and granted

them permission to remove it — a ruling the Sweets did not appeal.

¶ 40 The Sweets point to the statement in Sweet I that “the

suggestion [in an email from the Sweets to the Dodsons] that the

parties bind their successors might suggest permanence,” while

downplaying the upshot of this statement: “the parties never agreed

on such a provision.” Id. at ¶ 24. Without any evidence of such an

agreement, or other evidence to support a reasonable belief of

irrevocability, the district court did not abuse its discretion in

finding the Sweets’ claims substantially frivolous or groundless.

¶ 41 The Sweets also argue that the district court erred by finding

their defenses to the Dodsons’ counterclaims were substantially

frivolous or groundless because (1) they were entitled to put the

Dodsons to their burden of proof; and (2) they reduced the Dodsons’

claimed damages by nearly ninety percent, including defeating their

claim for exemplary damages. These considerations may bear on

19
the section 13-17-103(1) analysis we address below. On one hand,

when an entire action lacks substantial justification and the claims,

counterclaims, and defenses are “inextricably intertwined,” the

court is not required to apportion fees among the various claims.

Padilla, 183 P.3d at 664. On the other hand, a party “should be

held liable only for attorney fees incurred as a result of their own

conduct lacking substantial justification.” Id. But even if some

portion of the Sweets’ defense was substantially justified, the

district court did not abuse its discretion at the “first step of the

analysis” by determining that the action, either in whole or in part,

lacked substantial justification. Munoz, 247 P.3d at 1034.

C. Section 13-17-103(1) Findings

¶ 42 The Sweets also contend that the district court erred by failing

to make findings under section 13-17-103(1). We agree.

¶ 43 Section 13-17-102(4) must be read “in conjunction with

section 13-17-103(1), which further assists the court in determining

when an award of attorney fees is appropriate.” Munoz, 247 P.3d at

1034. Section 13-17-103(1) lists factors that the district court must

consider in determining “whether to assess attorney fees . . . and

the amount of fees to be assessed.” These factors “give context and

20
content to section 13-17-102(4)’s direction to the court that fees are

appropriate when a claim is substantially frivolous, groundless, or

vexatious.” Munoz, 247 P.3d at 1034. Thus, even when the court

finds that an action lacked substantial justification, it must also

make findings under section 13-17-103(1) explaining the basis for

the award. See Aldrich, 945 P.2d at 1379 (affirming district court’s

decision to award fees but remanding for court to make findings

under section 13-17-103(1) regarding the amount of the award).

¶ 44 The district court did not make any findings indicating that it

had considered the factors in section 13-17-103(1) before awarding

attorney fees. Indeed, on remand, the Sweets specifically asked the

court to make findings under section 13-17-103(1), and the court

declined. The district court did not make any such findings before

the first appeal either. Its initial three-sentence ruling awarding

fees said only that the Sweets’ “claims, defenses, and litigation

tactics were ‘frivolous, substantially groundless, or substantially

vexatious.’” And its order determining the amount of the fee award

focused on the reasonableness of the requested amount without

citing or addressing any of the section 13-17-103(1) factors.

21
¶ 45 We recognize that the district court’s order on remand was

comprehensive and may have incidentally touched on some of the

section 13-17-103(1) factors. But by the district court’s own

account, the order was limited to determining what the Sweets

knew or should have known. It did not make “specific findings

pursuant to section 13-17-103(1)” regarding either its decision to

assess attorney fees or the amount of the award. Padilla, 183 P.3d

at 662. Indeed, the Dodsons do not argue otherwise. They argue

only that the Sweet I mandate precluded the district court from

making such findings — a contention we have rejected above.

¶ 46 Thus, because the district court did not make findings under

section 13-17-103(1) sufficient to “permit meaningful appellate

review” of the fee award, we remand for the district court to

consider and make findings as to whether, and how, the factors in

section 13-17-103(1) support the award. Aldrich, 945 P.2d at 1379.

In doing so, the court may rely on the existing record or hold a

hearing, as it deems appropriate. See id. at 1380.

IV. Other Act Evidence

¶ 47 Finally, the Sweets argue that the district court abused its

discretion by admitting evidence of another dispute between the

22
Sweets and a neighbor in Wisconsin. They contend that this

evidence was inadmissible other act evidence under CRE 404(b).

A. Additional Background

¶ 48 Before the attorney fee hearing on remand, the Dodsons filed a

motion to present the remote testimony of Jeffrey Lutz, the Sweets’

Wisconsin neighbor, regarding a prior lawsuit the Sweets had

brought against him. They argued that the facts of that dispute

were “strikingly similar” to the facts of this case and would show

that the Sweets knew or should have known their actions in this

case were substantially frivolous, groundless, or vexatious.

¶ 49 The Sweets opposed the presentation of such testimony.

Among other things, they argued that the testimony violated CRE

404(b). They asserted that the prior dispute could not prove their

knowledge because it “involved different neighbors, different

conduct, different legal claims, and a different state’s law.”

¶ 50 The district court allowed the testimony. Lutz testified that

the Sweets’ conduct toward him and his family was “the exact

same” as their conduct toward the Dodsons, following the same

“pattern or . . . blueprint for destroying [their] neighbors.”

Specifically, he testified that the Sweets called the police on the

23
Lutzes several times, accused them of harassment and stalking, cut

down trees on their property, photographed them on their property,

attempted to control how they used their property, and threatened

litigation. He also testified that the Sweets filed two petitions for

temporary restraining orders, both of which were dismissed.

¶ 51 In its attorney fee order, the district court concluded that CRE

404(b) did not apply because the testimony was not offered to show

the Sweets “acted in conformity with [their] character,” given that

only the Sweets’ knowledge — and not their actions — was at issue.

Alternatively, the court concluded that even if CRE 404(b) did apply,

the testimony was admissible for the permitted purpose of proving

the Sweets’ knowledge. The court relied on the Sweets’ litigation

experience — including their dispute with Lutz — as one of multiple

grounds for finding that they knew or should have known that their

claims were substantially frivolous, groundless, or vexatious.

B. Applicable Law and Standard of Review

¶ 52 Evidence of other acts is inadmissible “to prove a person’s

character in order to show that on a particular occasion the person

acted in conformity with the character.” CRE 404(b)(1). Such

evidence may be admissible for another purpose, including to prove

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knowledge. CRE 404(b)(2). To be admissible, other act evidence

must be (1) logically relevant (2) to a material fact (3) independent of

the prohibited inference of the defendant’s bad character, and (4) its

probative value must not be substantially outweighed by the risk of

unfair prejudice. People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).

¶ 53 We review the admission of other act evidence for an abuse of

discretion. People v. Owens, 2024 CO 10, ¶ 105. A court abuses

its discretion when its ruling is “manifestly arbitrary, unreasonable,

unfair, or based on an incorrect understanding of the law.” Id.

C. Analysis

¶ 54 The parties appear to agree that CRE 404(b) applies in an

attorney fee hearing, though neither cites authority on that point.

Assuming without deciding that it does, we conclude that the

district court did not reversibly err by admitting Lutz’s testimony.

¶ 55 Although the district court did not cite Spoto or explicitly apply

its four-part test, its analysis effectively addressed the appropriate

considerations. The court concluded that Lutz’s testimony was

logically relevant to the Sweets’ knowledge regarding the

frivolousness of this action because it indicated they had “earlier

brought two court actions . . . under analogous circumstances that

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were also found to be baseless and rejected by a Wisconsin court.”

It concluded that this relevance had nothing to do with the Sweets’

propensity to act in conformity with their character. And it denied

the Sweets’ associated CRE 403 objection, explaining that because

trial was to the court, the court would limit the evidence to

“whatever appropriate weight it may deserve.” At least as to the

prior litigation, that ruling was not an abuse of discretion — even if

there were some differences between those cases and this one. Cf.

Walter v. Hall, 940 P.2d 991, 999 (Colo. App. 1996) (holding that

district court did not abuse its discretion by admitting “testimony

regarding prior real estate litigation in which defendants were

accused” of similar conduct), aff’d, 969 P.2d 224 (Colo. 1998).

¶ 56 But even if we were to determine that the district court erred

by admitting some or all of Lutz’s testimony, we would nonetheless

conclude that any error was harmless for two reasons. See C.R.C.P.

61; Moody v. Corsentino, 843 P.2d 1355, 1375 (Colo. 1993) (“[A] trial

court’s judgment will not be reversed unless the party challenging

the judgment shows the existence of error and that the error had a

prejudicial effect.”). First, the district court considered Lutz’s

testimony only for the permissible purpose of proving the Sweets’

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knowledge. In explaining its decision, the court did not make any

inference about the Sweets’ character, much less their actions “in

conformity with the[ir] character.” CRE 404(b)(1). Second, the

Sweets’ “litigation experience” was only one of several grounds the

court gave for its finding of knowledge. The court also cited (1) the

Sweets’ competent pro se representation and active participation in

the case while represented; (2) their “professional experience” in real

estate; (3) and their conduct preceding and during this litigation.

¶ 57 Given these other bases for the district court’s ruling, we are

not persuaded that its admission of Lutz’s testimony, erroneous or

not, affected the Sweets’ substantial rights. See C.R.C.P. 61.

V. Disposition

¶ 58 The attorney fee order is affirmed in part and reversed in part.

The district court’s findings under section 13-17-102 — that (1) the

Sweets brought or defended the action, or any part of the action,

without substantial justification; and (2) they clearly knew or

reasonably should have known their action or defense was

substantially frivolous, groundless, or vexatious — are affirmed.

The case is remanded for the sole purpose of considering and

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making findings under section 13-17-103(1) in determining whether

to assess attorney fees and the amount of fees to be assessed.

JUDGE GROVE and JUDGE YUN concur.

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