Marriage of Thornton

24CA0288 Marriage of Thornton 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0288
El Paso County District Court No. 17DR31134
Honorable David Prince, Judge

In re the Marriage of

Lindsay Shaw Thornton n/k/a Lindsay Shaw,

Petitioner,

and

Murray Alexander Thornton,

Appellee,

And Concerning

Amy M. Springer and Springer & Steinberg, P.C.,

Attorneys-Appellants.

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

Division IV
Opinion by JUDGE GROVE
Harris and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Gelman Law LLC, Weston Cole, Greenwood Village, Colorado; Alchemy Law
Firm, LLC, Douglas Norberg, Denver, Colorado for Appellee

Springer & Steinberg, P.C., Jeffrey A. Springer, Michael P. Zwiebel, Denver,
Colorado, for Attorneys-Appellants
¶1 Amy M. Springer, together with her law firm, Springer &

Steinberg, P.C. (jointly, Springer), appeals the district court’s orders

sanctioning her under C.R.C.P. 11 and section 13-17-102, C.R.S.

2024, and awarding attorney fees jointly and severally against her

and her client, Lindsay Shaw Thornton n/k/a Lindsay Shaw (wife).

We affirm in part, reverse in part, and remand the case with

directions.

I. Background

¶2 Wife filed for divorce from Murray Alexander Thornton

(husband) in 2017. Wife represented herself at first but then hired

a series of different attorneys as the case progressed.

¶3 Central to the dissolution proceedings was the division of

marital property, including the valuation and distribution of

potential damages related to an unresolved tort claim from a 2016

car crash that injured wife. Three insurance policies were

implicated in the claim’s resolution: the tortfeasor’s liability policy,

wife’s workers’ compensation policy, and the couple’s underinsured

and uninsured motorist (UM/UIM) policy. The potential value of

the personal injury claim — which the district court ruled should be

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split 60-40 in favor of wife — was significant given the apparent

extent of wife’s injuries and the UM/UIM policy’s $500,000 limit.

¶4 Due to the involvement of three insurance companies and

attorneys in three different states, progress on the tort claim was

slow. The slow-going proceedings led husband’s attorneys to

repeatedly press wife and her Florida and California attorneys for

information about the claim’s status and for documents related to

the various policies and the claim itself. Dissatisfied with what wife

and her various attorneys provided, husband eventually filed a

motion to compel in which he sought the immediate disclosure of

“all detailed information and documentation relating to the personal

injury claims, including execution of an authorization for [husband]

and his lawyers to obtain information directly from insurance

carriers.” Specifically, the motion requested:

a. An accounting of [wife’s] claimed damages
to date (including the total cost of medical
treatment);

b. Amounts, details, and copies of all
demands or offers to settle made on the
workers’ compensation and UM/UIM
carriers;

c. A copy of the UM/UIM policy;

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d. If an arbitration or lawsuit has been
commenced against either carrier, the
case/arbitration number, date of filing,
name of the arbitrator(s) and location of the
arbitration (or the specific court where a
lawsuit has been filed), and a summary of
the current status of the arbitration or
lawsuit;

e. A copy of any fee agreements related to her
personal injury claims (redacting any
medical information or attorney client
privilege);

f. A full accounting of all settlement funds or
other proceeds [wife] and her counsel have
received related to her personal injury
claims; and

g. A copy of any tolling or similar agreements
related to her personal injury claims.

h. An authorization for [husband] to obtain
the complete claim files from all carriers in
a form acceptable to [husband’s] counsel.

¶5 Three weeks after husband filed his motion to compel,

Springer entered her appearance for wife, substituting for her

previous attorney. Shortly thereafter, she filed wife’s response to

the motion to compel. It was this response — specifically, its

assertion that wife “has provided all information related to her

personal injury claim that is in her possession, custody, or

control” — that gave rise to the sanctions order that is now before

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us. Based on the representation that wife had already complied

with husband’s previous demands by turning over everything that

was available to her, Springer argued in the response that

husband’s motion to compel was frivolous, groundless, and

vexatious. She then requested attorney fees and costs under

C.R.C.P. 11 and section 13-17-102, C.R.S. 2024.

¶6 In a detailed written order, the district court ordered wife to

produce the requested information. Acknowledging that production

might be duplicative of wife’s previous disclosures, the court

nonetheless reasoned that compliance should be simple given wife’s

claim that she had already turned over everything in her

possession. The court also noted that a do-over would shed light on

the parties’ “mutually exclusive representations” about what had or

had not been previously disclosed and would allow it to determine

“which party’s characterization [wa]s more accurate or if some other

alternative explain[ed] their mutually exclusive representations of

apparently objective historical facts.” Foreshadowing the possibility

of sanctions, the court noted that a party who “wishe[d] to pursue

the dispute over Rule 11 compliance and/or application of [section]

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13-17-102” would need to provide “a detailed and comprehensive

discovery log” along with any such motion.

¶7 Wife, via Springer, complied with the court’s order. Some of

the materials that she provided had not been previously disclosed,

including documents relating to the UM/UIM policy, wife’s damages

claims, demand and settlement offers, fee agreements, and

payments that wife had received.

¶8 Both parties then submitted motions for attorney fees and

sanctions. Wife argued that her disclosures demonstrated that she

had, in fact, previously turned over everything in her possession

and that, as a result, husband’s motion to compel required her to

needlessly incur additional attorney fees. For his part, husband

maintained that wife — via Springer’s response to the motion to

compel — had misrepresented to the court that she had already

disclosed all the requested materials and that the court should thus

“award [husband] attorney fees and costs under [section] 13-17-

102(4).”

¶9 The court agreed with husband. In a written order that

focused on what it characterized as Springer’s representation that

“all the information requested had already been provided to

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[husband],” the court concluded that wife’s response to the motion

to compel “lacked candor” and contained “erroneous and

misleading” representations. The court found that an award of

attorney fees and costs against wife was an appropriate sanction

and — importantly for this appeal — that “[l]iability shall be joint

and several between [wife] and the counsel signing the [r]esponse

brief in opposition to the Motion to Compel at issue.”

¶ 10 Springer sought reconsideration, but the court denied the

motion. Eventually, it assessed $19,517.50 in fees against Springer

and wife jointly.

¶ 11 Springer now appeals the sanctions orders, arguing that (1)

the district court abused its discretion in awarding fees at all, as

well as against her personally; and (2) in the alternative, if the

award is upheld, the court erroneously calculated the total amount

owed.

II. Imposition of Sanctions

¶ 12 Springer challenges the district court’s imposition of sanctions

generally and against her personally. Specifically, she argues that

the court incorrectly found that the response to the motion to

compel was misleading and that, in any event, the record lacks

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evidence showing that she failed to conduct a reasonable

investigation prior to filing the response.

A. Standard of Review and Applicable Law

¶ 13 The district court’s sanctions orders referenced both C.R.C.P.

11 and section 13-17-102. The decision to award attorney fees

under either provision is committed to the discretion of the trial

court, whose ruling will not be disturbed on appeal absent an abuse

of discretion. Stearns Mgmt. Co. v. Mo. River Servs., Inc., 70 P.3d

629, 633 (Colo. App. 2003). A court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, or unfair or when

the court misapplies or misconstrues the law. Int’l Network, Inc. v.

Woodard, 2017 COA 44, ¶ 24. When reasonable people could differ

as to the propriety of the trial court’s decision, it cannot be said

that the court abused its discretion. See People v. Wilson, 2014

COA 114, ¶ 35 (“[D]iscretion is abused only where no reasonable

person would take the view adopted by the trial court.”) (alteration

in original) (citation omitted); see also Vigil v. People, 2019 CO 105,

¶ 14 (“In determining whether a trial court has abused its

discretion, reviewing courts have . . . been admonished from

considering merely whether they would have reached the same

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conclusion and, instead, must affirm as long as the trial court’s

decision fell within a range of reasonable options.”).

¶ 14 Section 13-17-102 exists “because our courts are burdened

with unnecessary litigation that interferes with the effective

administration of civil justice.” In re Marriage of Aldrich, 945 P.2d

1370, 1378 (Colo. 1997). The statute creates “an important

sanction available to a court in a civil case to punish an attorney or

a party who engages in conduct improperly instigating or prolonging

litigation.” Id.

¶ 15 Under section 13-17-102(4), a court shall assess attorney fees

if it finds that an attorney or party brought or defended an action,

or any part of an action, “that lacked substantial justification . . . ,

was interposed for delay or harassment . . ., or . . . unnecessarily

expanded the proceeding by other improper conduct, including . . .

abuses of discovery procedures . . . .” An action lacks substantial

justification if it is “substantially frivolous, substantially

groundless, or substantially vexatious.” § 13-17-102(9)(a).

¶ 16 Whether a claim is substantially frivolous, substantially

groundless, or substantially vexatious is a determination within the

district court’s discretion. Hamon Contractors, Inc. v. Carter &

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Burgess, Inc., 229 P.3d 282, 299 (Colo. App. 2009). Vexatious

conduct includes conduct that is arbitrary, abusive, stubbornly

litigious, or disrespectful of truth. Bockar v. Patterson, 899 P.2d

233, 235 (Colo. App. 1994).

¶ 17 C.R.C.P. 11(a) imposes affirmative obligations on an attorney

signing a pleading:

The signature of an attorney constitutes a
certificate by him that he has read the
pleading; that to the best of his knowledge,
information, and belief formed after reasonable
inquiry, it is well grounded in fact and is
warranted by existing law or a good faith
argument for the extension, modification, or
reversal of existing law, and that it is not
interposed for any improper purpose, such as
to harass or to cause unnecessary delay or
needless increase in the cost of litigation.

¶ 18 If a pleading is signed in violation of this rule, the court, “shall

impose . . . an appropriate sanction, which may include an order to

pay to the other . . . parties the amount of the reasonable expenses

incurred because of the filing of the pleading, including a

reasonable attorney’s fee . . . .” Id. (emphasis added). The

imposition of sanctions for a C.R.C.P. 11 violation is mandatory.

Henry v. Kemp, 829 P.2d 505, 506 (Colo. App. 1992). The rule

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requires the court to impose sanctions against the attorney, the

client, or both. Id.

B. Misleading Statements

¶ 19 At the heart of the district court’s sanctions orders was wife’s

assertion in her response to the motion to compel that, “as

[husband] is aware, [wife] has provided all information related to

her personal injury claim that is in her possession, custody or

control.” The court found that this “representation and [the] line of

argument flowing from the representation lacked candor,” that the

statement was “erroneous and misleading,” and that “it was known

to be so when made.”

¶ 20 Springer contends that the court abused its discretion in

reaching this conclusion because it failed to account for the broader

context in which the statement appeared. Considering the response

as a whole, Springer maintains, makes clear that wife was only

asserting that she had already disclosed information that was

relevant to the request — a category narrowly circumscribed by

caveats in the court’s prior orders and in wife’s response itself.

¶ 21 This argument misunderstands the district court’s order,

which made no attempt to define or construe what information or

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documents might or might not have been “relevant” in any technical

sense. Instead, the court based its sanctions decision on the

response’s unqualified assertion that wife had already provided to

husband “all information related to her personal injury claim that is

in her possession, custody or control.” That assertion, the court

concluded, was proven false when the tranche of documents wife

provided after the court ordered a disclosure do-over included

materials that were not included in wife’s previous discovery

responses.

¶ 22 We acknowledge Springer’s argument that wife’s belated

disclosure of the documents in question does not, standing on its

own, necessarily establish that wife possessed or had control of

them at any previous point. But that contention again misses the

mark. The court was primarily concerned with candor, and its

conclusion that Springer’s representation was “erroneous and

misleading” has ample record support. As one example, the court

noted that Springer made factual assertions in her briefing that

were not adequately supported by an affidavit from wife that she

cited as the information’s source. For another, the court found, “[a]

tolling agreement existed and [wife] failed to provide a copy to

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[husband] despite the line of argument presented in opposition to

the Motion to Compel (and, moreover, failed even to disclose clearly

whether such an agreement existed).”

¶ 23 As the district court noted,

In a discovery dispute, a significant difference
exists between asserting that one has
produced the existing record and then failing
to clarify whether the record even exists (in
this case, the inference from the briefing was
that none existed but we now know one did
exist) or asserting that the record does exist,
has been pursued diligently, but one’s own
lawyer is refusing to produce.

¶ 24 We agree with this observation and conclude that the district

court did not abuse its discretion in finding that the response’s

representation about the extent of wife’s previous disclosures was

untrue and lacked substantial justification. See C.R.C.P. 11(a);

Stepanek v. Delta Cnty., 940 P.2d 364, 370 (Colo. 1997) (imposition

of Rule 11 sanctions does not necessitate showing of bad faith on

part of attorney who certifies pleading; instead, sanctions are

appropriate where attorney’s signed pleading fails to meet test of

objective reasonableness); § 13-17-102(9)(a) (An action lacks

substantial justification if it is “substantially frivolous, substantially

groundless, or substantially vexatious.”).

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C. Reasonable Investigation

¶ 25 We turn next to Springer’s contention that the court abused

its discretion in imposing sanctions because (1) she did not know

her representation was inaccurate, and (2) she made a reasonable

inquiry prior to responding to husband’s discovery requests.

Because this argument is unpreserved, we do not address it on the

merits.

¶ 26 “Arguments raised for the first time in a reply brief before a

trial court are not properly before an appellate court where the

opposing party was unable to respond, and the trial court made no

findings or conclusions with respect to that contention.” Grohn v.

Sisters of Charity Health Servs. Colo., 960 P.2d 722, 727 (Colo. App.

1998); Coomer v. Donald J. Trump for President, Inc., 2024 COA 35,

¶ 118 (“We ordinarily will not consider issues raised for the first

time in a reply brief before the district court.”).

¶ 27 After wife complied with the motion to compel, husband filed a

motion requesting a fee award “against [wife]” under section 13-17-

102(4). The district court, however, awarded fees under both

section 13-17-102(4) and C.R.C.P. 11 and made liability for those

fees “joint and several between [wife] and [Springer].”

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¶ 28 Springer filed a motion for reconsideration in which she denied

making inaccurate representations in the response to husband’s

motion to compel and asserted that the statements that wife made

“in her affidavit were made in good faith based on information she

had obtained from California counsel.” The motion to reconsider

did not challenge the court’s decision to sanction Springer

personally, nor did it assert that she should not be penalized under

C.R.C.P. 11 because the representations at issue had been based

on a reasonable investigation. Springer did, however, raise the

issue in her reply brief, arguing for the first time that the predicate

conditions for sanctions under C.R.C.P. 11 had not been met and

attaching an affidavit stating, among other things, that Springer

and an associate attorney had “undert[aken] efforts . . . to educate

[themselves] as to the status of this complex case and to review the

voluminous pleadings” before filing wife’s response to the motion to

compel.

¶ 29 The district court acknowledged Springer’s argument but

concluded that she waived it by raising it too late. As the court put

it, “[t]he time to present any defense by counsel making the

representation that they did not know their representation was

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inaccurate and/or that they had made reasonable inquiries before

making the erroneous representation was when the request was

made for sanction[s] under Rule 11, not after the sanction was

imposed.” Because Springer chose a different tack in the sanctions

briefing — arguing throughout that sanctions were unwarranted

because there were no misleading statements in wife’s response to

the motion to compel — the court declined to consider her newly

raised assertions of due diligence.

¶ 30 Springer maintains that both her arguments are timely. She

points out that husband’s motion only referenced section 13-17-

102(4) and did not request a fee award against her personally, and

argues that, as a result, she had no reason to address the C.R.C.P.

11 standards. That argument might have some force if Springer

had included details about her prefiling investigation in her motion

for reconsideration. See C.R.C.P. 46 (“[I]f a party has no

opportunity to object to a ruling or order at the time it is made, the

absence of an objection does not thereafter prejudice him.”). But,

despite the district court’s explicit invocation of C.R.C.P. 11 in its

first sanctions order, Springer waited until filing her reply brief in

support of the motion for reconsideration to raise it for the first

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time. This deprived husband of the opportunity to respond to the

argument, and under those circumstances we cannot conclude that

the district court abused its discretion by concluding that the issue

was waived. See Coomer, ¶ 118.

D. Amount Assessed

¶ 31 Finally, Springer argues the court abused its discretion when

it awarded fees and sanctions for (1) work done by husband’s

attorneys before she entered her appearance in the case and

(2) time spent by husband’s attorneys responding to her motion for

reconsideration. We agree with her first argument, but not the

second.

¶ 32 “Proper sanctions under C.R.C.P. 11 may include an order to

pay the other party’s reasonable expenses incurred in response to

the pleading as well as reasonable attorney fees.” Stepanek, 940

P.2d at 370 (emphasis added). Similarly, sanctions under section

13-17-102(4) are intended to compensate the opposing party for

actions that lack substantial justification. We do not interpret

either provision as encompassing behavior that predates an

attorney’s involvement in the case. In other words, because there is

nothing in the record that would support a conclusion that Springer

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engaged in any misconduct related to the motion to compel before

she entered her appearance, the court could not impose sanctions

against Springer for fees incurred by husband during that time

period.1

¶ 33 We reach the opposite conclusion with respect to fees incurred

by husband in responding to Springer’s motion for reconsideration.

It was well within the district court’s discretion to conclude that

husband should not be required to incur the financial burden

associated with defending the propriety of the sanctions that it had

already awarded.

III. Appellate Attorney Fees

¶ 34 Husband requests an award of appellate attorney fees under

C.A.R. 38(b). Springer partially prevailed in this appeal, and her

unsuccessful appellate arguments were not frivolous or otherwise

sanctionable. We therefore decline to award appellate attorney fees.

1 The district court could, however, and did, impose sanctions

against wife for attorney fees incurred before Springer’s entry of
appearance. That portion of the award has not been challenged in
this appeal. On remand, the court should subtract that portion of
the fees from the overall total, leaving wife solely responsible for her
misconduct before Springer’s entry of appearance, and wife and
Springer jointly and severally liable for the fees incurred by
husband after Springer’s entry of appearance.

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IV. Disposition

¶ 35 We affirm the court’s imposition of sanctions under C.R.C.P.

11 and section 13-17-102(4). We reverse the court’s award of

attorney fees against Springer to the extent that it applies to fees

incurred by husband before Springer entered her appearance in the

case. We remand the case with instructions to the district court to

recalculate the fees for which Springer and wife are jointly and

severally liable.

JUDGE HARRIS and JUDGE PAWAR concur.

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