Estate of Sherwin

25CA0051 Estate of Sherwin 02-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0051
Jefferson County District Court No. 21PR31375
Honorable Todd L. Vriesman, Judge

In re the Estate of Suzanne Sherwin, deceased.

Paul E. Simmerly,

Appellant,

v.

Leslie Towner, Personal Representative,

Appellee.

ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE MOULTRIE
Dunn and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 26, 2026

Paul E. Simmerly, Pro Se

Lathrop GPM, LLP, Alison E. Zinn, Casey C. Breese, Denver, Colorado, for
Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 In this probate case, Paul E. Simmerly appeals the district

court’s order awarding Leslie Towner, the personal representative

for the estate of Suzanne Sherwin (the estate), her reasonable

attorney fees. We affirm and remand the case with directions.

I. Background

¶2 Suzanne Sherwin died testate in September 2021. A few

months later, Towner filed an “Application for Informal Probate of

Will and Informal Appointment of Personal Representative” with the

assistance of attorney John Valentine, whom she had retained to

represent her in administrating the estate. The registrar entered an

order admitting Sherwin’s will to informal probate and appointing

Towner as the personal representative of the estate. Simmerly is

Sherwin’s cousin and a 20% beneficiary of the residual estate.

¶3 After her appointment, Towner began liquidating the estate’s

assets. Within nine months of opening the probate proceeding, she

made two partial distributions to the residual beneficiaries,

including Simmerly.

¶4 In January 2023, Towner filed a petition (the petition)

requesting that the court enter an order for final settlement of the

estate, along with a final accounting, a final inventory, and a status

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report detailing how the estate’s assets had been distributed.

Towner requested the court enter the order after the time noticed

for a nonappearance hearing. Simmerly objected to the court

holding a nonappearance hearing and filed several pleadings setting

forth his specific objections to the petition. Simmerly objected to

the court ordering the final settlement because he hadn’t received

information about the attorney fees that Valentine had charged the

estate. He also disputed the appropriateness of Towner’s handling

of the estate’s assets and questioned the accuracy of the hours

supporting her compensation.

¶5 Towner retained a different law firm — Lathrop GPM, LLP

(Lathrop) — to defend against Simmerly’s objections. Lathrop filed

an “omnibus” response to Simmerly’s initial set of objections, to

which it attached Valentine’s attorney fee statements and

approximately 240 pages of time logs detailing the services Towner

had provided to the estate from September 2021 through December

2022.

¶6 Simmerly then filed two more pleadings objecting to the

reasonableness of Valentine’s fees and Towner’s compensation.

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Simmerly also filed several motions seeking court authorization to

conduct discovery, which the court denied.

¶7 The court held a two-day evidentiary hearing under section

15-10-604, C.R.S. 2025, to determine whether Valentine’s fees and

Towner’s compensation were reasonable (fees and compensation

hearing). About six months after the fees and compensation

hearing, the court entered an order in May 2024 (May order) in

which the court found, as relevant here, that

• the compensation paid to Towner and the attorney fees

and costs incurred by the estate and paid to Valentine

were reasonable;

• Simmerly’s objections and fee disputes were made in bad

faith; and

• Towner was entitled to reasonable attorney fees and costs

under section 15-10-605(1), C.R.S. 2025, for defending

against Simmerly’s bad faith objections and fee disputes.

¶8 After the hearing, Lathrop filed a “Submission of Declaration of

Attorneys’ Fees and Costs” (fees declaration) that requested the

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court award Towner a total of $94,855.501 in reasonable attorney

fees and costs against Simmerly. Lathrop attached to the fees

declaration forty-seven pages of invoices for its work from January2

2023 to January 2024 and seventeen pages of invoices from

Valentine for the same period.

¶9 Simmerly responded and objected to the amount of attorney

fees requested. The court entered an order in November 2024

(November order) finding, among other things, that (1) Simmerly’s

response didn’t challenge any task, any time entry, or the attorneys’

charged rates; (2) Towner’s hiring of Lathrop was reasonable and

necessary and not duplicative of Valentine’s work; and (3) all

sixty-four pages of invoices attached to the fees declaration

contained sufficient detail to allow the court to assess the

reasonableness of the requested fees. The court concluded that the

full amount of the attorney fees and costs Towner requested was

reasonable and awarded her that amount.

1 This total includes $75,232 incurred by Lathrop GPM, LLP

(Lathrop) and $19,623.50 incurred by Valentine in defending
against Simmerly’s objections and fee dispute.
2 The first invoices from Lathrop and Valentine are dated March

2023, but the time entries on those invoices include time from
January 2023.

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¶ 10 Shortly before the court issued the November order, Simmerly

filed a motion asking the court to declare the May order void under

C.R.C.P. 60(b). The court denied that motion in December 2024

(December order).

¶ 11 In January 2025, Simmerly filed the underlying appeal. In his

notice of appeal, he indicated he was challenging three orders: the

May order, the November order, and the December order. Towner

filed a motion asking this court to partially dismiss Simmerly’s

appeal for lack of jurisdiction because his appeal of the May order

was untimely. This court granted the motion and limited

Simmerly’s appeal to the November and December orders.

¶ 12 After Simmerly filed his opening brief, Towner filed a motion

asking this court to strike his brief because he primarily addressed

the May order. This court granted Towner’s motion to strike and

directed Simmerly to file an amended brief that complied with its

orders. After Simmerly filed an amended opening brief, Towner

asked this court to strike his amended brief, dismiss the appeal

with prejudice, and award her appellate attorney fees and costs

(second motion to strike). The merits of the second motion to strike

were deferred to this division.

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¶ 13 We first consider the merits of the second motion to strike.

II. We Partially Grant the Second Motion to Strike

¶ 14 In his amended opening brief, Simmerly identifies four3 issues

on appeal. Simmerly asserts that the district court erred by

(1) failing to conclude he was the prevailing party; (2) denying his

request for discovery; (3) declining to admit certain exhibits at the

fees and compensation hearing; and (4) awarding Towner’s attorney

fees against him.

¶ 15 When a court enters a final judgment, the court’s earlier

orders and rulings merge into that judgment and generally become

reviewable. Mulberry Frontage Metro. Dist. v. Sunstate Equip. Co.,

2023 COA 66, ¶ 14. “[A] judgment is final if it disposes of the entire

litigation on the merits, leaving nothing for the court to do but

execute on the judgment,” even when an award of attorney fees

remains unresolved. Id. at ¶¶ 14, 17; see also Kennedy v. Gillam

Dev. Corp., 80 P.3d 927, 929 (Colo. App. 2003) (“[A]n award of

3 We identify four issues on appeal despite Simmerly listing six. We
construe as a single issue Simmerly’s first three listed “issues”
because they each relate to his assertion that he was the prevailing
party with respect to various aspects of the litigation that occurred
before or during the fees and compensation hearing.

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attorney fees is distinct and separately appealable from the

judgment on the merits.”). If a party fails to timely appeal a final

judgment, an appellate court lacks jurisdiction to consider the

merits. In re Estate of Anderson, 727 P.2d 867, 869 (Colo. App.

1986).

¶ 16 Here, the May order disposed of the litigation on the merits

because Simmerly’s challenge to Valentine’s fees and Towner’s

compensation was the only issue left to be resolved before the estate

could be settled and closed. Thus, contrary to Simmerly’s

assertions, the unresolved issue of attorney fees didn’t prevent the

May order from serving as a final judgment. See Mulberry Frontage

Metro. Dist., ¶¶ 14, 17.

¶ 17 Simmerly’s arguments in support of his first three issues

challenge various court rulings leading up to the May order. Those

rulings, therefore, merged into the May order and would have been

reviewable if he had filed a notice of appeal within forty-nine days

after the court entered that order. See C.A.R. 4(a)(1). But Simmerly

filed his notice of appeal almost eight months after the court

entered the May order. We lack jurisdiction to consider the first

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three issues Simmerly raises on appeal. Accordingly, we grant in

part Towner’s second motion to strike.

¶ 18 We now turn to the merits of Simmerly’s appeal of the

November order and address Towner’s request for appellate

attorney fees and costs.

III. Applicable Legal Principles

A. Reasonable Attorney Fees Under the Colorado Probate Code

¶ 19 “A fiduciary and [their] lawyer are entitled to reasonable

compensation for services rendered on behalf of an estate.”

§ 15-10-602(1), C.R.S. 2025. Additionally, section 15-10-605(1)

permits a court to assess reasonable attorney fees and costs against

a party who files pleadings in bad faith in a probate proceeding. If a

personal representative is required to defend the reasonableness of

their compensation or costs, then the court “may assess the

reasonable fees and costs incurred in the proceeding as the court

deems equitable” and allocate those fees and costs against any

party involved in the proceeding “as justice and equity may require.”

§ 15-10-605(2).

¶ 20 Section 15-10-604 sets forth the procedure a court must

follow when a dispute concerning fees arises. A court must hold a

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hearing and issue findings of fact and conclusions of law that

reference the reasonableness factors set forth in section

15-10-603(3), C.R.S. 2025, “and any other factors it deems relevant

to its decision.” § 15-10-604(4); see In re Estate of Gonzalez, 2024

COA 63, ¶¶ 45-47 (noting that the court must consider the factors

in section 603 and may consider other factors when determining

whether fees are reasonable). While section 603(3) requires a court

to consider thirteen specific factors in determining reasonableness,

it grants the court discretion to assess the weight of each factor and

any other relevant factors. See § 15-10-603(3)(a)-(m).

B. Standard of Review

¶ 21 We review a court’s order awarding reasonable attorney fees

and costs for an abuse of discretion. In re Estate of Fritzler, 2017

COA 4, ¶ 24. A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair or misapplies the law.

Id. at ¶ 6. “The determination of what constitutes reasonable

attorney fees ‘is a question of fact for the [district] court and will not

be disturbed on review unless it is patently erroneous and

unsupported by the evidence.’” Yaekle v. Andrews, 169 P.3d 196,

201 (Colo. App. 2007) (quoting Am. Water Dev., Inc. v. City of

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Alamosa, 874 P.2d 352, 386 (Colo. 1994)), aff’d on other grounds,

195 P.3d 1101 (Colo. 2008).

IV. Analysis

¶ 22 As an initial matter, we note that although Simmerly identified

the December order as one he was challenging on appeal, he

doesn’t make any arguments regarding the December order in his

opening brief and concedes in his reply brief that the November

order is “[t]he operative order in this appeal.” Thus, we deem any

challenge to the December order abandoned. See In re Marriage of

Marson, 929 P.2d 51, 54 (Colo. App. 1996) (issues identified in the

notice of appeal but not addressed in the opening brief are

abandoned).

¶ 23 With respect to the November order, Simmerly argues that

section 605 requires an equitable balancing test when a court

determines whether to award attorney fees. And he asserts that our

review is de novo because his argument involves the interpretation

of section 605. But Simmerly doesn’t challenge the court’s

interpretation of section 605; rather, he disputes the court’s

application of section 605. See Fritzler, ¶ 6 (noting an abuse of

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discretion includes the court’s misapplication of the law).

Accordingly, we review for an abuse of discretion.

¶ 24 Simmerly lists fifteen4 “factors” that the court failed to

consider when it erred by awarding fees against him. He argues

that if the court had considered the fifteen “factors,” then it

wouldn’t have awarded Towner her reasonable attorney fees.

¶ 25 However, none of the “factors” that Simmerly lists are among

the thirteen factors set forth in section 603. And ten5 of the fifteen

“factors” that Simmerly lists relate to the May order, so we lack

jurisdiction to consider his arguments with respect to them.

Simmerly’s five remaining “factors,” which he asserts demonstrate

error, are as follows:

(1) Towner didn’t need the services of multiple attorneys to

defend against his objections.

(2) “This is a case of first impression.”

(3) “This case was out of control” through no fault of his

own.

4 Simmerly labels these asserted errors by letters “a” through “m” in

his amended opening brief.
5 These are the arguments Simmerly labels as “a” through “c” and

“h” through “n,” reordered for purposes of discussion.

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(4) “Probate fiduciaries should not be able to charge

whatever they want” and awarding attorney fees for

multiple attorneys “essentially nullifies” section 604 and

legislative intent.

(5) Because he is an estate beneficiary, he “should have the

absolute right to raise legitimate questions and concerns

about the administration of the estate” without being

sued.

¶ 26 We reject Simmerly’s contentions of error for three reasons.

¶ 27 First, to the extent that Simmerly asserts that the court didn’t

equitably consider whether fees should be awarded under the

circumstances of this case, we disagree. The record demonstrates

that the court considered the section 603(3) factors relevant to its

determination of the reasonableness of Towner’s requested attorney

fees under the circumstances of this case. See § 15-10-603(2)

(“[T]he court shall apply the standard of reasonableness in light of

all relevant facts and circumstances.”).

¶ 28 Indeed, in its May order, the court explicitly addressed

relevant section 603 factors to assess the reasonableness of the

attorney fees up to that point. And Simmerly’s objection to the fees

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declaration submitted after the fees and compensation hearing

merely repeated many of the arguments about the reasonableness

of the fees that the court had already considered and rejected.

¶ 29 Nonetheless, with respect to his argument that Lathrop’s

services were duplicative of Valentine’s services, the court found

that Simmerly acknowledged that Valentine primarily handled

estate administration, while Lathrop handled the litigation in

response to his objections. The court thus concluded that the

“transfer of responsibility was reasonable and necessary and was

not duplicative.”

¶ 30 And although Simmerly asserts that this case is one of first

impression, he nearly immediately contradicts himself and states

that this case doesn’t involve “novel or difficult” issues. In any

event, the record demonstrates that the court considered “[t]he time

and labor required, the novelty and difficulty of the questions

involved, and the skill required to perform the service properly.”

§ 15-10-603(3)(a). The court found that because the estate

consisted of “numerous financial accounts and multiple different

financial institutions, requiring a significant level of organization

and detail,” it was reasonable for Towner to “retain counsel

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experienced in probate administration and estate financial and tax

matters.”

¶ 31 Likewise, even if we construe his assertion that the case was

“out of control” as an argument under section 603(3)(e), which

requires the court to consider “[w]hether and to what extent any

litigation has taken place and the results of such litigation,”

§ 15-10-603(3)(e), the record demonstrates that the court expressly

considered the circumstances of the litigation. The court concluded

that Simmerly brought and prosecuted his objections in bad faith,

his conduct was “stubbornly litigious,” and he “created

unwarranted delay for final settlement” of the estate.

¶ 32 Second, Simmerly argues that the Colorado Probate Code

allows probate fiduciaries “to charge whatever they want” and that

allowing an attorney fees award for multiple attorneys “essentially

nullifies” section 604 and legislative intent. Because these

arguments are presented without development or citation to legal

authority, we decline to further consider them. See Barnett v. Elite

Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010).

¶ 33 Third, section 604 allows an estate beneficiary to raise

legitimate disputes concerning fees and compensation related to the

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administration of an estate. That is exactly what happened here

when Simmerly filed his objections to Towner’s compensation and

Valentine’s fees. However, section 605 expressly authorizes a court

to award reasonable attorney fees to a personal representative who

defends against such a dispute when the court finds the party who

disputed the fees and compensation did so in bad faith. See

§ 15-10-605(1)-(2). Simmerly fails to cite any authority that gives

an estate beneficiary immunity from an award of attorney fees

under section 605. Rather, he again presents this assertion in a

conclusory manner without any supporting authority. See Barnett,

252 P.3d at 19.

¶ 34 Simmerly doesn’t challenge the reasonableness of Valentine’s

or Lathrop’s rates.6 In awarding Towner’s fees, the court explained

that it was familiar with the litigation history in the case, and it had

reviewed all the invoices that were attached to the fees declaration,

6 Simmerly does argue that it was unreasonable for Valentine to be

awarded the fees he incurred for making corrections to “improper
redactions” to invoices. He also disputes an “unexplained” charge
from November 2022 by an attorney with whom Valentine
consulted. But these arguments relate to matters that were
addressed at the fees and compensation hearing and that were
subject to the May order — which we don’t have jurisdiction to
review.

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which in turn detailed the attorneys’ work. The court’s conclusion

that Towner’s requested fees were reasonable under the

circumstances of this case are thus supported by the record.

¶ 35 Accordingly, Simmerly hasn’t demonstrated that the court

abused its discretion when it awarded attorney fees against him.

Therefore, we won’t disturb the award. See In re Estate of Musso,

932 P.2d 853, 857 (Colo. App. 1997) (it’s within the discretion of the

district court to determine the reasonableness for attorney fees

incurred by a personal representative, and we won’t disturb the

court’s award absent a showing of an abuse of discretion).

V. Towner’s Request for Appellate Attorney Fees and Costs

¶ 36 Towner requests an award of her appellate attorney fees under

C.A.R. 38 and C.A.R. 39.1 and her appellate costs under C.A.R. 39.

We grant her request and, acting on our own motion, also award

reasonable attorney fees under section 13-17-102(6), C.R.S. 2025.

See Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App.

2006).

¶ 37 Section 13-17-102(6) provides,

A party who is appearing without an
attorney . . . shall not be assessed attorney
fees . . . unless the court finds that the party

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clearly knew or reasonably should have known
that the party’s action or defense, or any part
of the action or defense, was substantially
frivolous, substantially groundless, or
substantially vexatious . . . .

(Emphasis added.)

¶ 38 An appeal is frivolous as argued if the appellant has

committed misconduct in arguing the appeal. Martinez v. LHM

Corp., TCD, 2020 COA 53M, ¶ 25, aff’d on other grounds, 2021 CO

78. However, an appeal shouldn’t be considered frivolous merely

because it is ultimately unsuccessful or it advances a claim that is

not recognized under existing law. W. United Realty, Inc. v. Isaacs,

679 P.2d 1063, 1069 (Colo. 1984).

¶ 39 If an appellate court determines that an appeal is frivolous,

then it may award damages it deems appropriate, including

attorney fees. C.A.R. 38(b); Castillo, 148 P.3d at 292 (an appeal is

substantially frivolous under section 13-17-102 “when the

appellant’s briefs fail to set forth, in a manner consistent with

C.A.R. 28, a coherent assertion of error, supported by legal

authority”); see also C.A.R. 38(a) (“The appellate court may . . .

impose other sanctions it deems appropriate, including attorney

fees, for the failure to comply with any of its orders . . . .”).

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¶ 40 This court issued an order striking Simmerly’s initial opening

brief and expressly limiting his appeal to the November and

December orders because any challenge to the May order was

untimely. Given that order, Simmerly knew that he shouldn’t

address the May order and instead should focus his appeal on the

November and December orders. Yet Simmerly primarily challenges

the May order in his amended opening brief. As such, we conclude

that Simmerly lacked substantial justification for, and committed

misconduct by, raising all but one of the issues he identified. See

Martinez, ¶ 25; see also § 13-17-102(6) (allowing a court to assess

attorney fees against a party who clearly knew that any part of their

action was substantially frivolous).

¶ 41 Accordingly, we conclude that Towner is entitled to her

reasonable appellate attorney fees under section 13-17-102(6),

C.A.R. 38(b), and C.A.R. 39.1 for both motions to strike and for

responding to the majority of Simmerly’s amended opening brief.

Additionally, because we are affirming the November order, Towner

is entitled to an award of her appellate costs under C.A.R. 39(a)(2).

We remand this case to the district court for determination of the

amount of such fees and costs. See C.A.R. 39.1; see also SG Ints. I,

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Ltd. v. Kolbenschlag, 2019 COA 115, ¶¶ 40, 46 (remanding case to

the district court for a determination and award of reasonable

appellate attorney fees arising out of a frivolous appeal).

VI. Disposition

¶ 42 The order is affirmed, and the case is remanded to the district

court to determine the amount of Towner’s reasonable appellate

attorney fees and costs.

JUDGE DUNN and JUDGE BERNARD concur.

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