In re Estate of Shimizu

COLORADO COURT OF APPEALS 2016COA163

Court of Appeals No. 15CA1421
City and County of Denver Probate Court No. 11PR928
Honorable Elizabeth D. Leith, Judge

In re the Estate of Calvin Shimizu, a/k/a Calvin Kiyoshi Shimizu, a/k/a Calvin
K. Shimizu, deceased.

Jamie Szoke, as Personal Representative of the Estate of Calvin Shimizu, and
individually, a/k/a Jamie Lee Tomie-Szoke and Jamie Lee Shimizu,

Appellant,

v.

Bonnie Rae Trujillo-Dickson, James Gillen Dickson, and Ann Kathleen May,

Appellees.

ORDER AFFIRMED

Division II
Opinion by JUDGE DAILEY
Furman and Harris, JJ., concur

Announced November 3, 2016

Miller & Steiert, P.C., Gary Clexton, Christopher J. Forrest, Mollie B. Hawes,
Littleton, Colorado; Clauss & Associates, P.C., Eliot R. Clauss, New York, New
York, for Appellant

Hunsaker Emmi, P.C., Donald T. Emmi, William J. Hunsaker, Golden,
Colorado, for Appellees
¶1 Petitioner, Jamie Szoke, a/k/a Jamie Lee Shimizu, a/k/a

Jamie Lee Tomie-Szoke (Szoke), individually and as personal

representative of the estate of decedent, Calvin Shimizu, a/k/a

Calvin Kiyoshi Shimizu, a/k/a Calvin K. Shimizu, appeals the

probate court’s order awarding respondents, Bonnie Rae Trujillo-

Dickson, James Gillen Dickson, and Ann Kathleen May (Recipients),

attorney fees under section 13-17-102, C.R.S. 2016. We affirm.

I. Background

¶2 Decedent’s half-sister, Szoke, challenged the validity of a deed

that decedent had executed near the end of his life. In that deed,

decedent purported to convey his house to three of his close friends,

i.e., the Recipients.

¶3 Decedent died intestate and survived by Szoke, with whom he

had not spoken since their father’s funeral more than two decades

earlier.

¶4 As pertinent here, Szoke claimed that the deed was invalid

because decedent (1) lacked testamentary capacity to transfer

property and (2) was subjected to the undue influence of friends

who were in dire financial straits. At trial, Szoke testified that she

believed decedent would have wanted his house to go to relatives,

1
and she presented a cousin who related that, two months before his

death, decedent offered to give her (the cousin) the house. Szoke

also presented evidence (1) from a doctor, who opined, from a

review of decedent’s medical records, that decedent’s physical and

mental condition, together with the heavy doses of narcotic pain

medication he was taking, would have substantially decreased his

ability to comprehend legal documents; (2) of the Recipients’

financial problems; and (3) from a handwriting expert, who opined

based on comparisons between the documents signed the day the

deed was executed, that the signature on the deed was not that of

decedent but, rather, that of one of the Recipients.

¶5 At the conclusion of Szoke’s case-in-chief, the Recipients

moved for dismissal under C.R.C.P. 41(b)(1), but the court denied

that motion.

¶6 The Recipients testified to their close friendship with decedent

and that decedent understood what he was doing and wanted to

give them his house. They presented the attorney who prepared the

deed, who testified to the process he followed to ensure decedent

was mentally competent and to protect against undue influence.

They also presented testimony from several hospice staff members

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(including a doctor) and two of decedent’s other friends, all of whom

confirmed that decedent had acted consistently with his express

desires, and with sufficient mental acuity, when he executed the

deed before a notary public.

¶7 Ultimately, the probate court rejected Szoke’s claims, finding

the Recipients’ case far more persuasive because it was based on

evidence from persons who had direct contact with decedent near or

at the time the deed was executed, and not all of whom were

interested in the outcome of the case. Based on its appraisal of the

case, the court also determined that the Recipients were entitled to

an award of attorney fees under section 13-17-102 because Szoke’s

claims “lacked substantial justification” and were “groundless, in

that she presented valid theories of undue influence and lack of

capacity, but offered little or nothing to support those claims.”

¶8 The probate court’s order rejecting Szoke’s claims was affirmed

on appeal. In re Estate of Shimizu, (Colo. App. No. 14CA2024, Feb.

25, 2016) (not published pursuant to C.A.R. 35(f)) (Shimizu I). But

because the amount of the attorney fees award had not been

determined when Szoke filed her notice of appeal, the division was

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not presented with a final, appealable attorney fees order it could

review.

¶9 The probate court has since determined that the Recipients

are entitled to an award of $68,182.01 in attorney fees. In its order

setting the amount of attorney fees, the court, in addressing the

basis for awarding fees, cited sections 13-17-101, et al., but did not

reference groundlessness as the reason for its award. Instead, it

referenced a prior finding that Szoke “prosecuted this case despite

all facts leading to a conclusion that Decedent had legal and

testamentary capacity and disposed of his assets in the manner in

which he intended.”

¶ 10 Szoke now appeals the attorney fees award, challenging not

the amount awarded, but only the basis for the award.

II. The Probate Court Did Not Err in Awarding Attorney Fees

¶ 11 Szoke contends that the probate court erroneously awarded

attorney fees to the Recipients under section 13-17-102. More

specifically, she asserts that the probate court erred in (1) relying

on certain testimony presented by the Recipients because it was

undisclosed expert evidence and (2) determining that her claims

lacked substantial justification. We disagree with both contentions.

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A. Court’s Reliance on Undisclosed Expert Testimony

¶ 12 In this part of her appeal, Szoke asserts that the probate court

erred in relying on certain evidence that was improperly admitted

because it was undisclosed expert testimony. In Shimizu I, the

division determined, contrary to Szoke’s assertion, that the evidence

was admissible.

¶ 13 “Conclusions of an appellate court, and rulings logically

necessary to those conclusions, become the law of the case and

generally must be followed in later proceedings.” Interbank Invs.,

LLC v. Eagle River Water & Sanitation Dist., 77 P.3d 814, 817 (Colo.

App. 2003). Szoke has given us no reason why we should depart

from the ruling in Shimizu I, and we perceive none.

¶ 14 Because, under Shimizu I, the challenged evidence was held to

be admissible, the district court could consider it for anything for

which it was relevant.

B. The Merits of the Court’s Decision

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

for an abuse of discretion. New Design Constr. Co. v. Hamon

Contractors, Inc., 215 P.3d 1172, 1185-86 (Colo. App. 2008). A

court abuses its discretion where its decision rests on a

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misunderstanding or misapplication of the law, Genova v. Longs

Peak Emergency Physicians, P.C., 72 P.3d 454, 458 (Colo. App.

2003), or is manifestly arbitrary, unreasonable, or unfair. E-470

Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230 (Colo. App.

2006).

¶ 16 Pursuant to subsections 13-17-102(2) and (4), a trial court

shall award attorney fees if a party “brought . . . an action . . . that

lacked substantial justification.” “Lacked substantial justification”

is defined as “substantially frivolous, substantially groundless, or

substantially vexatious.” § 13-17-102(4).

¶ 17 In its initial attorney fees order, the probate court reiterated

the three parts of the “lacked substantial justification” definition; it

then proceeded, however, to further rely on only two parts of that

definition, i.e., those relating to “groundless” or “vexatious” claims.

1. Groundlessness

¶ 18 The probate court found that Szoke’s claims were “groundless”

because she did not present much evidence to support her claims,

and the court did not “credit” or believe her evidence in light of the

Recipients’ evidence. In these regards, the court found:

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 Szoke had presented a “dearth of evidence” to support

her claims of undue influence and lack of capacity.

 She “was unable to secure witnesses who knew Decedent

and the circumstances to support her position and

resorted to the use of expert testimony based primarily

upon review of the hospice records and witness

depositions.”

 Szoke “would have the Court find that [the Recipients’

financial circumstances] led [the Recipients] to

orchestrate a plan to deprive the [decedent] and by

extension herself, of the [decedent’s] assets after his

death.”

 “To effectuate this plan the [Recipients] would have

required the cooperation of hospice staff. . . . [T]he

evidence simply does not support this conclusion even

remotely. The testimony of all witnesses who knew

Decedent and were actually involved was not in conflict

and was consistent. The only inconsistent testimony was

presented by [Szoke’s experts], none of whom had any

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relationship with [decedent] and none of whom were

present during his life or last illness.”

 In the end, Szoke was “unable to prove her claims with

credible evidence from eyewitnesses to the events at

issue.”

¶ 19 “A claim is substantially groundless if the allegations in the

complaint, while sufficient to survive a motion to dismiss for failure

to state a claim, are not supported by any credible evidence at

trial.” City of Aurora ex rel. Util. Enter. v. Colo. State Eng’r, 105 P.3d

595, 618 (Colo. 2005).

¶ 20 The section 13-17-102 groundlessness inquiry turns, then, on

whether the party presented “any credible evidence” on her behalf.

The phrase “credible evidence” is nowhere defined in our case law.

The term “credible,” though, is commonly understood as meaning

capable of being credited or believed. Comperry v. State, 375

S.W.3d 508, 510-15 (Tex. App. 2012); see Wonnum v. State, 942

A.2d 569, 573-74 (Del. 2007) (capable of being believed); Smith v.

State, 925 So. 2d 825, 838-39 (Miss. 2006) (same). It is not

synonymous with the term “credited.” See, e.g., Hlad v. State, 565

So. 2d 762, 776-78 (Fla. Dist. Ct. App. 1990) (Cowart, J.,

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dissenting) (“Credited means believed . . . . Credible means capable

of being believed . . . .”), approved, 585 So. 2d 928 (Fla. 1991).

¶ 21 Thus, something can be “credible” without the necessity of its

ultimately being “believed” or accepted by the trier of fact. Indeed,

courts have applied this meaning in the context of determining

whether “some” or “any” credible evidence supports a criminal

defendant’s request for an affirmative defense instruction. See

§ 18-1-407(1), C.R.S. 2016 (setting forth “credible evidence”

requirement); see also, e.g., Lybarger v. People, 807 P.2d 570, 580

(Colo. 1991) (The court’s “function is not to determine the credibility

of various witnesses or the weight to be given their testimony, but

rather simply to decide whether there is evidence in the record to

satisfy the rather low statutory standard for submitting an

affirmative defense to a jury.”); Gutierrez v. State, 842 A.2d 650, 653

(Del. 2004) (“Once the judge determines that the evidence is

‘credible’ in the sense of being possible, he or she should submit to

the jury the question of which version of the facts is more believable

and supported by the evidence as a whole.”); cf. Hlad, 565 So. 2d at

777 (Cowart, J., dissenting) (The word “credible” relates “not to

some quantum measure of evidence nor to a fact-finder’s subjective

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weighing of the quality (credit-worthiness) of evidence . . . but to an

objective recognition of the matter offered as being evidence capable

of being believed and capable of supporting a fact-finding.”).1

¶ 22 In the section 13-17-102 groundlessness context, the term

“credible” conveys the same type of meaning presented in the

above-mentioned authorities, that is, whether “some” non-

inherently incredible evidence was presented in support of a claim

or defense. See Consumer Crusade, Inc. v. Clarion Mortg. Capital,

Inc., 197 P.3d 285, 291 (Colo. App. 2008) (groundlessness shown

when claim “lacks admissible evidence to support” it); Nienke v.

Naiman Grp., Ltd., 857 P.2d 446, 450 (Colo. App. 1992) (A fee award

based on “groundlessness” was reversed because the “evidence,

while not perhaps persuasive to the trial court, was clearly

sufficient to support a reasonable inference that defendants [did

something wrong]. . . . [T]his evidence constituted ‘some credible

evidence,’ in support of this claim despite the law firm’s inability to

1 Judge Cowart went on to note that the word “credible” is “intended
to exclude only evidence that is inherently incredible, such as
asserted facts or events that are contrary to commonly known and
generally accepted scientific or mathematical principles, geographic
facts, natural laws or common sense.” Hlad v. State, 565 So. 2d
762, 777 (Fla. Dist. Ct. App. 1990) (Cowart, J., dissenting),
approved, 585 So. 2d 928 (Fla. 1991).

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convince the court that it had established a prima facie case.”);

Colo. Supply Co. v. Stewart, 797 P.2d 1303, 1307-08 (Colo. App.

1990) (reversing fee award based on “groundlessness” because

“plaintiff introduced some evidence” in support of his claim); see

also Comput. Assocs. Int’l, Inc. v. Am. Fundware, Inc., 831 F. Supp.

1516, 1523 (D. Colo. 1993) (“[A]n award of attorney fees under the

Colorado statute is contingent on there being no evidence at

trial . . . .”); Kahn v. Cundiff, 533 N.E.2d 164, 171 (Ind. Ct. App.

1989) (using Colorado’s “credible evidence” test to arrive at

conclusion that “a claim or defense is groundless if no facts exist

which support the legal claim relied on and presented by the losing

party”), aff’d, 543 N.E.2d 627 (Ind. 1989).

¶ 23 Measured by this standard, Szoke presented “credible

evidence” to support her claims, even though much of it was

presented through experts rather than by eyewitnesses near the

time of decedent’s death.2 Szoke’s physician expert in toxicology

2 The probate court must itself have felt that way at one point. It
did, after all, deny the Recipients’ midtrial C.R.C.P. 41(b)(1) motion
to dismiss. In so doing, the court necessarily determined not only
that Szoke had presented a prima facie case, but that Szoke’s
evidence carried sufficient weight to preclude entry of judgment for
the Recipients at that point. See 12 Debra Knapp et al., Colorado

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opined based on decedent’s medical records that heavy, escalating

doses of pain medications compromised decedent’s mental capacity,

and would have diminished his ability to understand legal

documents. Szoke’s handwriting expert analyzed and compared the

signatures on the documents and opined that decedent’s signature

on the deed matched the handwriting of one of the Recipient’s

signatures. Szoke’s other evidence revealed that the Recipients

struggled financially, raising a potential motive for undue influence,

and intimated that decedent would have wanted to give his property

to relatives.

Practice Series, Civil Procedure Forms & Commentary § 41.4 (2d ed.
2016) (“[T]he Rule 41(b) inquiry is not simply confined to
determining whether the plaintiff presented a prima facie case, but
also as to whether or not the defendant should have a dismissal
based upon the plaintiff’s evidence.”) (footnote omitted); see also
City of Aurora ex rel. Util. Enter. v. Colo. State Eng’r, 105 P.3d 595,
614 (Colo. 2005) (unlike determining whether a prima facie case
has been presented, under C.R.C.P. 41(b)(2) a court is not required
to accept evidence as true because there is no contrary evidence,
but may determine the facts and enter judgment against the
plaintiff); Pub. Serv. Co. of Colo. v. Bd. of Water Works, 831 P.2d
470, 480 (Colo. 1992) (“[T]he water court did not err by . . .
requiring the applicant to establish more than a prima facie case at
mid-trial to avoid judicial fact finding and dismissal under C.R.C.P.
41(b).”).

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¶ 24 On this evidence, a reasonable fact finder could have found

undue influence and lack of capacity.3 Indeed, that was the

conclusion reached by the division in Shimizu I. See No. 14CA2024,

slip op. at 15 (concluding that “Szoke presented evidence from

which different findings could have been made” by the probate

court).

¶ 25 Because Szoke presented some “credible evidence” in support

of her claims, her claims were not sanctionable as “groundless”

under section 13-17-102. See W. United Realty, Inc. v. Isaacs, 679

P.2d 1063, 1070 (Colo. 1984) (holding that although claim became

3 That the probate court did not do so appears to have been based,
in part, on Szoke’s inability to prove some type of collusion between
the Recipients and the hospice staff. It should be noted, though,
that although Szoke did not attempt to prove “collusion,” she did
attempt to undermine the credibility of the hospice staff (the doctor,
nurse, social worker, and notary). Szoke’s cross-examinations of
the hospice doctor revealed that he was not directly involved in
decedent’s day-to-day treatment and did not remember him, and
that a patient’s mental capacity can vary throughout the day (i.e.,
fluctuation in mental state can occur rapidly and unpredictably).
Szoke’s cross-examination of other staff elicited evidence that,
although they were eyewitnesses to the execution of the deed, they
lacked clear memories of the signing and may not have thoroughly
assessed decedent’s mental capacity. While the hospice staff did
not appear to have participated in any foul play, Szoke’s evidence
called into question the rigor with which staff monitored decedent’s
mental capacity or protected him against possible undue influence
of the Recipients.

13
less persuasive as litigation continued and ultimately proved

unsuccessful, factual basis and attempts to extend the law did not

call for award of attorney fees); Foley v. Phase One Dev. of Colo.,

Inc., 775 P.2d 86, 88 (Colo. App. 1989) (stating that even though

case was built on a “very thin [evidentiary] reed,” imposition of

sanctions against the attorney “would create an intolerable tension”

between section 13-17-102 and the lawyer’s professional

responsibility to “‘zealously’ represent a client”); cf. City of Aurora,

105 P.3d at 619 (“Courts must allow parties and their attorneys to

reasonably rely on their experts without fear of punishment for

errors in judgment made by those experts.”).

2. Vexatiousness

¶ 26 An award of attorney fees under section 13-17-102 is also

warranted if a party’s conduct is “substantially vexatious.” “An

action is substantially vexatious if brought or maintained in bad

faith to annoy or harass another, and vexatiousness includes

conduct that is arbitrary, abusive, stubbornly litigious, or

disrespectful of the truth.” In re Parental Responsibilities

Concerning I.M., 2013 COA 107, ¶ 29.

14
¶ 27 The trial court did not explicitly characterize Szoke’s action as

“vexatious.” But that was the gist of its findings and conclusions.4

¶ 28 In its initial order, the court found the following:

 Szoke’s “evidence is manufactured, in that her experts

never met the Decedent and appear to be unfamiliar with

the normal business processes and routines for hospice

staff and the medical realities of hospice patients. There

is no evidence to support [Szoke’s] insinuation that

somehow [four hospice staff members] were in collusion

with [the Recipients.] The testimony of [decedent’s two

friends who were uninterested in the outcome of the case]

support the observations of the hospice employees as

reflected in their written reports and in their testimony

before this Court.”

 “[Szoke] had information available to her and many

opportunities to inform herself of the facts as presented

to this Court.”

4 “To use a trite phrase, ‘A rose by any other name is still a rose.’”
LaRosa v. LaRosa, No. Civ.A. 1:02MC9, 2004 WL 3807780, at *5
(N.D. W. Va. Jan. 23, 2004) (unpublished opinion).

15
 “[T]estimony from [a nurse practitioner at the hospice]

and [an uninterested, good friend of decedent’s] indicates

a private investigator was hired by [Szoke] regarding the

circumstances of this case. [The friend] testified he told

[Szoke] directly that [two of the Recipients] were good

people and spoke with the investigators 4-5 times.

[Szoke] had ample opportunity to inform herself of the

facts, including the discovery process which included

witness depositions. [She] was unable to secure

witnesses who knew Decedent and the circumstances to

support her position and resorted to the use of expert

testimony based primarily on the review of hospice

records and witness depositions. Rather than concede

any position, [she] sought to amend her petition to

included additional claims for civil theft, conversion, and

a declaratory judgment based on these expert opinions.

The Court finds, based on the number of witnesses who

testified and not including the [Recipients] in this count,

that [Szoke] had ample opportunity to determine the facts

and the validity of her claims.”

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¶ 29 Similarly, in the order setting the amount of the attorney fees

award, the court found:

 “Based on the testimony and evidence submitted at trial

and as found in its initial order, that [Szoke] made

extensive efforts to determine the validity of her claim in

this matter. Notwithstanding those efforts which as

demonstrated at trial revealed facts that did not support

her claim, she continued to prosecute her claims.

[Szoke] did not accept [the Recipients’] statutory

settlement offer.”

 The Recipients “are of modest means and two of them

filed for bankruptcy during the pendency of these

proceedings. [Szoke] was primarily represented by her

husband, who is experienced litigation counsel and while

[Szoke] incurred fees and costs, it does not appear her

costs were as great as [the Recipients’] fees and costs, as

[they] were required to hire counsel to represent them.”

 “Ultimately, the Court has found that [Szoke] prosecuted

this case despite all facts leading to a conclusion that

Decedent had legal and testamentary capacity and

17
disposed of his assets in the manner in which he

intended.”

¶ 30 We have no basis for overturning the trial court’s ruling

awarding fees. Under the applicable abuse of discretion standard of

review, “we do not consider whether we would have reached a

different result, but only whether the district court’s decision fell

within the range of reasonable options.” Hudak v. Med. Lien Mgmt.,

Inc., 2013 COA 83, ¶ 8.

¶ 31 In determining whether to assess section 13-17-102 attorney

fees, a court is, by statute, required to consider various factors,

including

(a) The extent of any effort made to determine
the validity of any action or claim before said
action or claim was asserted;

(b) The extent of any effort made after the
commencement of an action to reduce the
number of claims or defenses being asserted or
to dismiss claims or defenses found not to be
valid within an action;

(c) The availability of facts to assist a party in
determining the validity of a claim or defense;

(d) The relative financial positions of the
parties involved;

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(e) Whether or not the action was prosecuted
or defended, in whole or in part, in bad faith;

(f) Whether or not issues of fact determinative
of the validity of a party’s claim or defense
were reasonably in conflict;

(g) The extent to which the party prevailed with
respect to the amount of and number of claims
in controversy; [and]

(h) The amount and conditions of any offer of
judgment or settlement as related to the
amount and conditions of the ultimate relief
granted by the court.

§ 13-17-103(1), C.R.S. 2016.

¶ 32 Here, the court entered findings relating to all but one of these

factors, i.e., whether the action was prosecuted in bad faith. The

court found that Szoke made extensive efforts to investigate the

case and was aware of on-the-scene facts from uninterested parties

that undermined the validity of her claims; yet rather than reducing

her claims, she tried to augment them. Also, she rejected a

settlement offer, choosing instead to “manufacture” and prosecute a

case relying on experts removed from the situation, against parties

of “modest means” who did not have access to the legal resources

she did.

19
¶ 33 Under the circumstances, we cannot conclude that the court

abused its discretion in awarding fees for conduct that was

“stubbornly litigious, or disrespectful of the truth,” and, thus,

“substantially vexatious.” See People v. Hoover, 165 P.3d 784, 802

(Colo. App. 2006) (“[D]iscretion is abused only where no reasonable

person would take the view adopted by the trial court. If reasonable

persons could differ as to the propriety of the action taken by the

trial court, then it cannot be said that the trial court abused its

discretion.” (quoting State v. Heywood, 783 P.2d 890, 894 (Kan.

1989))) (alteration in original).

III. Appellate Attorney Fees

¶ 34 We reject the Recipients’ request under section 13-17-102 for

an award of attorney fees incurred on appeal. Under section

13-17-102, an award of fees on appeal is appropriate only in clear

and unequivocal cases where no rational argument is presented

and, thus, the appeal is frivolous. Wood Bros. Homes, Inc. v.

Howard, 862 P.2d 925, 934-35 (Colo. 1993). Although Szoke did

not prevail, we do not consider her contentions to be so lacking in

substance as to be frivolous. See Front Range Home Enhancements,

Inc. v. Stowell, 172 P.3d 973, 977 (Colo. App. 2007) (stating that

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appellate attorney fees are awardable under section 13-17-102 only

if the appeal itself is frivolous).

IV. Conclusion

¶ 35 The probate court’s award of attorney fees is affirmed.

JUDGE FURMAN and JUDGE HARRIS concur.

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