Thompson v. United Securities Alliance, Inc

COLORADO COURT OF APPEALS 2016COA128

Court of Appeals No. 15CA0964
City and County of Denver District Court No. 09CV7321
Honorable Michael A. Martinez, Judge

Mark L. Thompson and Rosalin Rogers,

Plaintiffs-Appellants,

v.

United Securities Alliance, Inc.,

Defendant,

and concerning Catlin Insurance Company (UK) Ltd., Garnishee,

Appellee.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE HARRIS
Ashby, J., concurs
Webb, J., concurs in part and dissents in part

Announced September 8, 2016

Sherman & Howard L.L.C., Christopher R. Mosley, Jennifer M. Morris, Denver,
Colorado, for Plaintiff-Appellant

Gordan & Rees LLP, John R. Mann, Denver, Colorado, for Appellee
¶1 Plaintiffs Mark L. Thompson and Rosalin Rogers obtained a

judgment against United Securities Alliance, Inc., and then

instituted garnishment proceedings against United’s insurer,

defendant Catlin Insurance Company (UK) Ltd. The district court

deducted from the policy limit the amount of attorney fees incurred

by Catlin in defending the underlying arbitrations against United,

and entered judgment for plaintiffs for the remainder of the policy.

¶2 On appeal, plaintiffs contend the district court erred in its

determination of reasonable attorney fees and in declining to award

pre- and post-judgment interest. Whether prejudgment interest can

be awarded in a garnishment proceeding is an unresolved issue in

Colorado. We affirm.

I. Background

¶3 Catlin issued a liability insurance policy to United, covering

claims that might arise from United’s business as a securities

broker. The policy allows Catlin to deduct from the policy’s liability

limit the “reasonable and necessary fees and costs incurred . . . in

the defense of a Claim.”

1
¶4 Plaintiffs received a damages award in an arbitration

proceeding against United, which the district court confirmed. To

collect on this judgment, plaintiffs then served a writ of

garnishment action on Catlin as United’s insurer.

¶5 In an October 2010 order, the district court ordered Catlin to

pay the damages award and found that Catlin could deduct “zero”

defense fees and costs from the policy’s limits. According to the

district court, the heavily redacted invoices submitted by Catlin

failed to establish that the fees were “reasonable and necessary.”

¶6 On appeal, a division of this court affirmed the liability

judgment, but remanded for the district court to determine the

amount of expenses that Catlin had reasonably incurred in the

arbitration, to deduct that amount from the $1 million policy limit,

and to order Catlin to pay the plaintiffs, from the remaining policy

limit, the amounts due under the judgment. Thompson v. Catlin

Ins. Co. (UK) Ltd., slip op. at 14 (Colo. App. No. 10CA2554, Feb. 12,

2012) (not published pursuant to C.A.R. 35(f)) (Thompson I).

¶7 On remand, the district court found that Catlin had

reasonably incurred fees and costs but, faced with the same heavily

2
redacted invoices (which it found largely “indiscernible”), the court

calculated Catlin’s expenses based on the amount of fees incurred

by plaintiffs’ counsel in the underlying arbitration. Using this

method, the court found that Catlin could deduct $320,000 in

attorney fees from the policy limits.

¶8 Catlin again appealed. A division of this court reversed a

second time, concluding that the district court’s order did not

include sufficient findings of facts to support its determination.

Thompson v. Catlin Ins. Co. (UK) Ltd., slip op. at 8 (Colo. App. No.

13CA2037, Oct. 16, 2014) (not published pursuant to C.A.R. 35(f))

(Thompson III).1

¶9 Before recalculating the reasonable amount of fees and costs

on remand, the district court accepted additional briefing from the

parties. This time, along with its briefing, Catlin provided the

unredacted copies of the invoices for the two arbitrations, stating

that it had finally located them from defense counsel “[a]fter an

1 In Thompson v. Catlin Ins. Co. (UK) Ltd., (Colo. App. No. 11CA1330,
Oct. 16, 2014) (not published pursuant to C.A.R. 35(f)) (Thompson
II), Catlin appealed the trial court’s subsequent award of attorney
fees to plaintiffs under C.R.C.P. 103, section (8)(b)(5). The fees at
issue in Thompson II are unrelated to the attorney fees contested
here.
3
exhaustive search.” Plaintiffs moved to strike the unredacted

invoices as outside the scope of the mandate, and the court denied

the motion.

¶ 10 In a thorough and carefully reasoned opinion, the district

court relied on record evidence, including the unredacted invoices,

to calculate Catlin’s reasonable attorney fees and costs, making

specific deductions for redundant entries, excessive hours, and

other discretionary factors. The court found $452,107.15 of

Catlin’s requested $545,136.27 reasonable and necessary and

deducted this amount from the policy limit. After subtracting

amounts Catlin had previously paid plaintiffs, the court ordered

Catlin to pay $96,287.68. It denied plaintiffs’ requests for pre- and

post-judgment interest.

¶ 11 On appeal, plaintiffs contend that the district court acted

beyond the scope of the mandate in Thompson III by considering the

unredacted invoices, and that it erred in denying interest to which

they are statutorily entitled.

4
II. Unredacted Invoices

¶ 12 Plaintiffs contend that the district court acted beyond the

scope of the Thompson III mandate because, by considering the

unredacted invoices, the district court expressly disregarded the

mandate’s instruction to review “the existing record.” In light of the

unusual circumstances of this case, we disagree.

¶ 13 Trial courts have no discretion to disregard binding appellate

rulings. Consequently, we review de novo whether a trial court has

complied with a prior appellate ruling. City Council of City of Cherry

Hills Vill. v. S. Suburban Park & Recreation Dist., 219 P.3d 421, 423

(Colo. App. 2009).

¶ 14 When determining the meaning of a remand order, we

consider the disposition and context of the entire opinion. See In re

Marriage of Balanson, 107 P.3d 1037, 1044 (Colo. App. 2004)

(interpreting remand order “in the context of the entire opinion”); In

re Marriage of Ashlock, 663 P.2d 1060, 1062 (Colo. App. 1983) (“The

meaning of a remand is to be determined from the reviewing court’s

disposition of the issues before it.”).

5
¶ 15 We acknowledge that, in most cases, an instruction to the

district court to “review the existing record,” and to make a

determination “from this record,” would amount to an order

prohibiting the district court from considering additional evidence.

But given the unusual procedural posture of this case, we construe

the language as permissive rather than restrictive — in our view,

the remand order meant that the district court could rely exclusively

on the existing record to calculate reasonable fees, not that it had

to.

¶ 16 The division’s opinion in Thompson III was the second reversal

of the district court’s attorney fees order. Twice the district court

had essentially disregarded the redacted invoices, complaining that

it was impossible to determine the reasonableness of the fees and

costs from those invoices.

¶ 17 The division in Thompson I, No. 10CA2554, slip op. at 12,

noted that the redacted invoices “amply demonstrate[d]” that the

expenses were incurred and that at least some were incurred for

legitimate reasons. It remanded the case to the district court to

6
calculate Catlin’s reasonable fees, but did not expressly restrict or

authorize the consideration of additional evidence.

¶ 18 On remand, Catlin continued to rely on the redacted invoices

— though, had it presented the unredacted invoices then, the

remand order would not have precluded the court’s consideration of

them, see In re Marriage of Ashlock, 663 P.2d at 1062 (where

reviewing court does not include in its mandate a direction

concerning additional proceedings, it is within the trial court’s

discretion to receive additional evidence) — and the court continued

to declare them unhelpful in evaluating Catlin’s fee request.

Consequently, as it had the first time, the district court chose an

alternative methodology to compute Catlin’s expenses. Instead of

analyzing the unredacted entries on the invoices, the district court

imputed to Catlin the same amount of fees claimed by plaintiffs’

lawyers for their services in connection with the arbitration.

¶ 19 On appeal for the second time, the Thompson III division

acknowledged the district court’s struggle to decipher the largely

“indiscernible” invoices, but nonetheless directed the court to

provide more specific reasoning to support its fee determination,

7
suggesting that it start with the invoices in the record. The division

then laid out the precise analytical path for the district court: after

determining the lodestar amount, the court could deduct any hours

not reasonably expended, including hours that were not sufficiently

documented in the redacted invoices. Next, the district court was

told to adjust the lodestar amount after considering six factors

relevant to the litigation. The division warned the district court not

to cut corners in its analysis by reverting to its earlier method of

comparison with opposing counsel’s request or by “eyeball[ing]” the

fee request and cutting it by some arbitrary percentage. Thompson

III, No. 13CA2037, slip op. at 13-14.

¶ 20 After providing this guidance, the division directed the district

court to “make a more specific determination of the reasonable

costs and fees that Catlin may deduct.” Id. at 14. To accomplish

this task, the division instructed the district court to review the

existing record, calculate the expenses Catlin had incurred, identify

any factors used in making the calculations, and then deduct that

amount from the policy limit and order Catlin to pay plaintiffs the

amount owed under the judgment.

8
¶ 21 In our view, having outlined the requisite procedure, the

division’s reference to the “existing record,” id. at 15, was merely a

way to reassure the district court that it need not start from scratch

but could instead perform the necessary factfinding and

calculations based on the indisputably less-than-ideal evidence in

the record. We do not interpret the order to preclude the district

court’s reliance on better information, if such information became

available on remand. Cf. Moland v. People, 757 P.2d 137, 141 (Colo.

1988) (remand order instructing that defendant had present need

for postconviction relief and ordering district court to resolve motion

on the merits did not preclude district court’s subsequent

determination, based on consideration of new facts, that defendant

did not have present need for relief). After all, the first division, in

Thompson I, had not limited the court’s ability to consider

additional evidence. It is not clear from the second remand order

why the Thompson III court would have changed course and

required the district court to ignore the unredacted invoices.

¶ 22 Our interpretation of the remand order also gives effect to

evidentiary rules that favor consideration of all relevant evidence,

9
see CRE 402, with the goal of promoting the “truth-seeking

purposes of our judicial system,” Garrigan v. Bowen, 243 P.3d 231,

238 (Colo. 2010). Over the course of this protracted litigation, two

divisions of this court have remanded to the district court to make a

specific, record-based calculation of the reasonable amount of

attorney fees Catlin could deduct from the policy limit. But an

accurate determination has been hampered by the redactions to the

invoices. Now that the unredacted invoices have been recovered, we

are reluctant, absent some explanation from the division, to read

the remand order to limit the district court’s wide discretion to

consider this superior evidence in making the required calculations.

¶ 23 The dissent suggests that we have placed too much emphasis

on the truth-seeking function of the court, reminding us that each

day trial courts properly exclude evidence. That is undoubtedly

true, but only when some greater interest outweighs the benefit of

admitting all of the information that will help the district court to

arrive at a reasoned and thorough decision. We agree with the

dissent that adherence to remand orders is necessary to ensure

finality. But because we do not read the Thompson III remand order

10
to prohibit the district court’s consideration of the unredacted

invoices, we do not perceive adherence to the order as an interest

that outweighs (or is even in competition with) the obvious benefit

of the complete invoices.

¶ 24 Nor do we perceive any manifest unfairness to the plaintiffs

that might outweigh the interest in admitting the unredacted

invoices. The plaintiffs did not assert, and the district court did not

find, that the delay in producing the unredacted invoices stemmed

from Catlin’s bad faith or even an attempt to gain some strategic

advantage in the litigation. Rather, the district court accepted

Catlin’s explanation that unredacted versions of the invoices were

discovered only “after an exhaustive search,” and then were

produced promptly. We are in no position to second-guess the

district court on this finding of fact. See In re Estate of Ramstetter,

2016 COA 81, ¶ 52.

¶ 25 The dissent says we give short shrift to the fairness issue, but

we are unwilling to press an argument that the plaintiffs themselves

never made in the district court or on appeal. In the district court,

the plaintiffs complained that reliance on the unredacted invoices

11
violated the remand order, not that admission of the invoices gave

Catlin some unfair advantage or, as the dissent puts it, an

impermissible “second bite at the apple.” Even on appeal, plaintiffs

did not protest the unfairness of the court’s reliance on the

unredacted invoices; they contended that the district court should

have given them an opportunity to challenge those invoices at a

second hearing. It was not until oral argument that plaintiffs first

invoked fairness, suggesting that Catlin’s belated filing of the

unredacted invoices should have been precluded as the product of

strategic gamesmanship. We would find the argument more

persuasive if it were raised in the district court and supported by

evidence in the record but, as counsel conceded at oral argument,

the record is devoid of such evidence.

¶ 26 As for plaintiffs’ argument that they did not have an

opportunity to challenge the unredacted invoices, we perceive no

error. Plaintiffs contend that the district court should have

authorized additional discovery and held a second hearing on the

unredacted invoices. But plaintiffs never asked for a hearing or for

leave to reopen discovery; they merely asked the district court to

12
strike the invoices from the record on the ground that their

admission violated the court of appeals’ mandate. Because

plaintiffs never asked for this relief, we cannot say that the district

court erred in failing to sua sponte reopen the proceedings. Zeke

Coffee, Inc. v. Pappas-Alstad P’ship, 2015 COA 104, ¶ 36 (“[A] court

ordinarily ‘will not sua sponte afford a party relief that it has not

requested.’” (quoting Planned Parenthood of Ind. & Ky., Inc. v.

Comm’r, Ind. Dep’t of Health, 64 F. Supp. 3d 1235, 1257 n.7 (S.D.

Ind. 2014))).

¶ 27 Accordingly, we conclude that the district court did not err in

considering the unredacted invoices.

III. Prejudgment Interest

¶ 28 Plaintiffs next contend that the district court erred in declining

to award prejudgment interest pursuant to section 5-12-102(1),

C.R.S. 2015. We disagree.

¶ 29 Because prejudgment interest is a question of statutory

interpretation, we review it de novo. Goodyear Tire & Rubber Co. v.

Holmes, 193 P.3d 821, 825 (Colo. 2008).

13
¶ 30 Section 5-12-102(1)(a) provides for the award of prejudgment

interest “[w]hen money or property has been wrongfully withheld

. . . from the date of wrongful withholding to the date of payment or

to the date judgment is entered.” This statute, however, does not

apply to garnishment proceedings; rather, it governs contract and

property damage cases. See Beren v. Beren, 2015 CO 29, ¶ 45

(Section 15-12-102 did not apply because “this case is not a

contract or property damage case; it is a probate case.”).2

¶ 31 Further, we agree with the district court that, because

garnishment actions do not result in damages to the garnishor,

prejudgment interest is not appropriate. Prejudgment interest is a

component of compensatory damages, meant to make the plaintiff

whole and fully compensate for the loss. Seaward Constr. Co. v.

2 We recognize that some cases have applied section 5-12-102(1) in
equitable actions, but we find those cases inapplicable. For
example, in Safeco Insurance Co. v. Westport Insurance Corp., 214
P.3d 1078, 1080 (Colo. App. 2009), a division of this court
determined that a plaintiff could collect prejudgment interest in a
contribution action. However, interest was appropriate in that case
because the purpose of contribution is to prevent unjust
enrichment and “the unjustly enriched party is generally liable for
interest on the benefits received.” Id. (quoting Martinez v. Cont’l
Enters., 730 P.2d 308, 317 (Colo. 1986)). In contrast, a garnishee is
not unjustly enriched because it possesses assets of a third-party
debtor.
14
Bradley, 817 P.2d 971, 978 (Colo. 1991); Watson v. Pub. Serv. Co. of

Colo., 207 P.3d 860, 867 (Colo. App. 2008). Absent an express

indication of legislative intent to deviate from the principle that

prejudgment interest is compensatory, it may be awarded only on

compensatory damages. Seaward Constr. Co., 817 P.2d at 978;

Watson, 207 P.3d at 867. A garnishment proceeding, however, is

not a “suit involving money damages”; rather it is an ancillary

proceeding to enforce a judgment. Commercial Claims, Ltd. v. First

Nat’l Bank of Glenwood Springs, 649 P.2d 736, 736 (Colo. App.

1982) (citation omitted). Accordingly, because compensatory

damages are not awarded in garnishment proceedings, prejudgment

interest is not appropriate.

¶ 32 Moreover, a plaintiff is only entitled to prejudgment interest

where there has been a wrongful withholding. “Our case law

clarifies that, as a precondition to a wrongful withholding, there

must be a party who has acted wrongfully in the legal sense, e.g., a

party has breached a contract.” Beren, ¶ 45. Catlin neither

breached a contract with plaintiffs nor damaged physical property,

see id., and no court has determined Catlin’s conduct to be

15
wrongful. Garnishment actions do not determine liability in the

sense of a legal wrong — they simply reach assets of a judgment

debtor in the hands of third parties. § 13-54.5-103, C.R.S. 2015;

C.R.C.P. 103; Idaho Pac. Lumber Co., Inc. v. Celestial Land Co. Ltd.,

2013 COA 136, ¶ 8. Before the garnishment action, Catlin had no

legal duties to plaintiffs, and thus the proceeds of the insurance

policy cannot have been wrongfully withheld. See Mesa Sand &

Gravel Co. v. Landfill, Inc., 776 P.2d 362, 364-65 (Colo. 1989)

(collecting cases).

IV. Postjudgment Interest

¶ 33 Finally, plaintiffs contend that an award of postjudgment

interest was mandatory under section 5-12-106(1)(b), and the

district court erred by denying their request. We disagree.

¶ 34 When a judgment is appealed by a judgment-debtor, section 5-

12-106(1)(b) provides for an award of postjudgment interest from

the date judgment was first entered in the trial court if “the

judgment is modified or reversed with a direction that a judgment

for money be entered in the trial court.”

16
¶ 35 However, under C.A.R. 37(b), “[i]f all or part of a judgment is

. . . modified, [or] reversed[] . . . with a direction that a money

judgment be entered in the lower court, the mandate must contain

instructions with respect to allowance of interest.” This rule

provides the appellate courts with exclusive authority to determine

the propriety of an award of postjudgment interest. In re Marriage

of Gutfreund & Hughes, 148 P.3d 136, 142 (Colo. 2006). As a

result, “if the mandate does not contain instructions regarding the

award of postjudgment interest from some date prior to the entry of

the judgment on remand, the trial court lacks jurisdiction to award

such interest.” Westec Constr. Mgmt. Co. v. Postle Enters. I, Inc., 68

P.3d 529, 535 (Colo. App. 2002).

¶ 36 Accordingly, because the Thompson III mandate did not direct

the district court to award postjudgment interest, the district court

correctly held that it lacked jurisdiction to make such an award.

See id.; Sperry v. Field, 186 P.3d 133, 141 (Colo. App. 2008). The

only way to invest the district court with the necessary jurisdiction

is to file a request with the court of appeals to amend its mandate.

Westec Constr., 68 P.3d at 535; Boryla v. Pash, 17 P.3d 833, 835

17
(Colo. App. 2000). But plaintiffs did not request this relief. And

because the district court had no jurisdiction to award interest, we

need not decide whether postjudgment interest would have been

proper under section 5-12-106(1)(b). Boryla, 17 P.3d at 834-35; see

also Pet Inc. v. Goldberg, 37 Colo. App. 257, 259, 547 P.3d 943, 945

(1975) (if a mandate issues that fails to direct the trial court with

respect to the award of interest, or even if it contains an erroneous

direction upon the subject, a trial court lacks jurisdiction to grant

an award of interest inconsistent with the appellate court’s

mandate).

¶ 37 We are not persuaded by plaintiffs’ argument that this reading

of Rule 37 would create an impermissible conflict with section 5-12-

106(1)(b). Rather, the statute merely “states the circumstances

wherein interest shall be allowed to a creditor or on a judgment,

[while] C.A.R. 37 requires and empowers the appellate court to

make the determination of interest to be allowed, if any,” and to

include appropriate instructions in its mandate. Pet Inc., 37 Colo.

App. at 259, 547 P.2d at 944-45. Thus, we perceive no conflict.

18
V. Conclusion

¶ 38 The judgment is affirmed. In their briefs, plaintiffs requested

attorney fees pursuant to either C.A.R. 39.5 (now renumbered as

C.A.R. 39.1) or C.R.C.P. 103, section 8(b)(5). In light of our opinion,

we decline to award attorney fees on either basis.3

JUDGE ASHBY concurs.

JUDGE WEBB concurs in part and dissents in part.

3 Catlin filed a motion to strike plaintiffs’ request for attorney fees,
noting that they did not raise the C.R.C.P. 103, section 8(b)(5) basis
in their opening brief. Since we decline to award attorney fees, this
motion is denied as moot.
19
JUDGE WEBB, concurring in part and dissenting in part.

¶ 39 I concur in all but Part II of the majority opinion. There, the

majority concludes that on remand the district court properly

allowed Catlin to supplement the record by replacing numerous

previously redacted invoices with unredacted versions. But in

doing so, the district court departed from plain language of the

mandate in Thompson v. Catlin Insurance Co. (UK) Ltd., (Colo. App.

No. 13CA2037, Oct. 16, 2014) (not published pursuant to C.A.R.

35(f)) (Thompson III). Therefore, and with respect, I dissent.

¶ 40 Everyone would agree that on remand a district court must

follow the mandate of an appellate court. See, e.g., City Council of

City of Cherry Hills Vill. v. S. Suburban Park & Recreation Dist., 219

P.3d 421, 423 (Colo. App. 2009). The majority recognizes, as do all

those who appeared before us, that the remand instruction in

Thompson III directed the district court to “review the existing

record, and from this record, calculate the amount of expenses that

Catlin reasonably incurred” in the underlying arbitrations.

Thompson III, No. 13CA2037, slip op. at 15. This language is clear.

And because it is clear, I decline to join the majority in wondering

20
“why the Thompson III court would have changed course and

required the district court to ignore the unredacted invoices.”

¶ 41 Yet, instead of following the plain meaning of this clear

language, the majority dismisses it as “merely a way to reassure the

district court that it need not start from scratch but could instead

perform the necessary factfinding and calculations based on the

indisputably less-than-ideal evidence in the record.” But what

more could the mandate have said? Must a mandate say not only

what the district court shall do — “from the existing record” — but

also what the court may not do — “without taking additional

evidence?” Surely not, as additional language is not necessary if

the meaning is otherwise clear. BMD Contractors, Inc. v. Fid. &

Deposit Co. of Md., 679 F.3d 643, 650 (7th Cir. 2012). And therein

lies the problem with the majority’s reliance on the lack of “some

explanation from the division.”

¶ 42 One might well ask whether this case — now in its fourth

appeal — cries out for a final resolution. It does. But that outcry

cannot license appellate disregard of yet another error.

21
¶ 43 To begin, the majority notes, “we consider the disposition and

context of the entire opinion,” citing In re Marriage of Ashlock, 663

P.2d 1060, 1062 (Colo. App. 1983). But this principle only frames,

it does not decide, the question of how the Thompson III mandate

should be read. And unlike the direction in the mandate here —

“review the existing record” — the Ashlock division pointed out that

“the reviewing court [did] not include in its mandate a direction

concerning additional proceedings.” Id.

¶ 44 Taking up how to read the mandate, I, too, view the remand

instructions through the prism of the entire opinion. This broad

perspective does not show us anything in Thompson III that even

hints at an opportunity to present additional evidence on remand.

To the contrary, the division said that the district court had already

“reviewed all the evidence.” Thompson III, No. 13CA2037, slip op. at

14. Given this statement, one might wonder why the district court

considered more — but not “newly discovered,” as Catlin conceded

at oral argument — evidence than it already had.

¶ 45 The division observed that while the district court had

identified testimony of Catlin’s counsel in the underlying arbitration

22
“as supporting the basis for the award,” the court had “not

connect[ed] her testimony to the $160,000 amount awarded in each

arbitration.” Id. at 10. Of course, this testimony was in the record.

¶ 46 Next, the division noted that a remand for further findings was

necessary because the district court’s “order does not specify

whether the court used the lodestar amount as a starting point

before reducing the fee. We also do not know if the court

considered whether Thompson’s counsel requested $160,000 as a

lodestar amount or as a contingency fee.” Id. And this testimony

was also in the record.

¶ 47 Then the division summarized the familiar lodestar

methodology — including the factors used to adjust the lodestar up

or down1 — and directed the district court to “make a more specific

determination of the reasonable costs and fees that Catlin may

deduct.” Id. at 14. But the division did not suggest that applying

1 “Factors that the district court may consider include: (1) the
amount in controversy; (2) the time required to represent the client
effectively; (3) the complexity of the case; (4) the value of the legal
services to the client; (5) the existence of a fee arrangement,
whether fixed or contingent; and (6) the customary practice in the
legal community regarding fees in similar actions.” Thompson v.
Catlin Insurance Co. (UK) Ltd., slip op. at 12 (Colo. App. No.
13CA2037, Oct. 16, 2014) (not published pursuant to C.A.R. 35(f)).
23
those factors would require the court to look beyond the “existing

record,” such as moving from the redacted invoices to their now

conveniently available unredacted counterparts.

¶ 48 Considering the division’s reference to evidence already in the

record and its lack of reference to new evidence, by any fair reading

the problem in Thompson III was insufficient explanation, not a lack

of evidence. Thus, on remand, the division’s concerns over

inadequate findings should have been resolved with further

scrutiny of the invoices already in the record — both redacted and

unredacted — as well as of the testimony given by arbitration

counsel for both parties in the attorney fees hearing.

¶ 49 Then the district court could have provided the additional

explanation that the division sought. And the district court could

still have concluded — as it had concluded once before — that gaps

created by the extensive redactions on many invoices left plaintiffs’

fees of $160,000 in each of the arbitrations as the most reliable

measure of reasonableness. After all, as the division also held, “no

language in Thompson I specifically instructed the district court to

use the lodestar method.” Id. at 6.

24
¶ 50 The majority’s stated deference to “the truth-seeking purposes

of our judicial system,” Garrigan v. Bowen, 243 P.3d 231, 238 (Colo.

2010), does not tip the scales in favor of admitting the unredacted

invoices, for three reasons.

¶ 51 First, the issue before us is not an evidentiary ruling, in which

district courts enjoy considerable discretion. See, e.g., People v.

Helms, 2016 COA 90, ¶ 45 (We review “evidentiary rulings for an

abuse of discretion.”). Instead, the issue is whether the district

court adhered to the plain language of the mandate. And the

mandate rule is just that: a rule, not a discretionary option.

¶ 52 Second, every ruling excluding evidence on procedural

grounds compromises truth seeking. See People v. Shreck, 22 P.3d

68, 76 (Colo. 2001). Yes, as the majority points out, “all of the

information . . . will help the district court to arrive at a reasoned

and thorough decision.” Even so, district courts routinely exclude

evidence on procedural grounds, at least where — as here — the

countervailing interest is not constitutional. See People v.

Pronovost, 773 P.2d 555, 558 (Colo. 1989).

25
¶ 53 Third, and to me most important, in many remands and with

the invariably perfect wisdom of hindsight, creative counsel can

identify additional evidence — available, as here, but not presented

before the appeal — that might tilt the playing field toward a more

favorable outcome on remand. But creativity does not beget

unbridled opportunity. Our supreme court has been reluctant to

allow any party “a second bite at the apple.” People v. Null, 233

P.3d 670, 681 (Colo. 2010) (quoting Burks v. United States, 437 U.S.

1, 17 (1978)). As well, allowing counsel to do so would protract

remand proceedings and imperil finality. See In re Marriage of

Wolford, 789 P.2d 459 (Colo. App. 1989) (noting that a definite

public interest exists in assuring the finality of civil judgments).

¶ 54 Finally, and to no one’s surprise, I take issue with the

majority’s inability to “perceive any manifest unfairness to the

plaintiffs that might outweigh the interest in admitting the

unredacted invoices.” A close look shows that the unfairness stems

from allowing Catlin to escape the strategic decision that it made —

long ago and presumably for good reason — to rest its fees claim on

the many redacted invoices from which the district court found it

26
“impossible to determine in any manner the activities performed

with respect to those entries.” Catlin neither suggests that the

unredacted invoices are “newly discovered” evidence, nor does it

offer any reason why it should be allowed to escape that choice on

remand. And for these reasons, I do not see why the burden should

be shifted to plaintiffs — as the majority does — to show an

insufficient “opportunity to challenge those invoices at a second

hearing.” The majority does not cite authority — nor am I aware of

any — softening the binding effect of remand instructions by

engrafting lack of prejudice on to the analysis.

¶ 55 In the end, I would reverse in part because the district court

departed from the mandate in Thompson III and again direct the

court to reconsider the attorney fees issue solely on the basis of the

invoices and other information in the record when the mandate

issued.

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