In re Estate of Shimizu, 2015 COA 163

Calvin Shimizu executed a deed near end of life purporting to convey his house to three close friends (the Recipients); he died intestate and was survived by his half-sister, Jamie Szoke.
Szoke sued in probate court challenging the deed, alleging lack of testamentary capacity and undue influence, presenting expert testimony (toxicology and handwriting) and evidence of the Recipients’ financial distress.
The Recipients presented eyewitness testimony (attorney who prepared the deed, hospice staff, friends) that Shimizu understood and intended the transfer; the probate court found their evidence more persuasive.
The probate court found Szoke’s claims lacked substantial justification and awarded attorney fees under § 13-17-102; an earlier appellate decision (Shimizu I) affirmed the judgment rejecting Szoke’s claims but did not address the fee amount.
The probate court later fixed fees at $68,182.01; Szoke appealed only the legal basis for the fee award.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court improperly relied on undisclosed expert or other testimony	Szoke: Certain testimony admitted was undisclosed expert evidence and should not have been relied on for fees	Recipients: Appellate ruling in Shimizu I already held that evidence admissible; court could rely on it	Court: Law of the case (Shimizu I) controlled; evidence admissible and properly considered
Whether Szoke’s claims “lacked substantial justification” under § 13-17-102 (groundless or vexatious)	Szoke: Her claims were supported by credible expert evidence (capacity and forgery/handwriting), so not groundless or vexatious	Recipients: Claims lacked credible, eyewitness support and were pursued despite available contrary facts; conduct was stubbornly litigious	Court: Although Szoke presented some credible evidence (so not "groundless"), the court did not abuse discretion in finding her litigation conduct “substantially vexatious” and awarding fees; appellate fees denied (appeal not frivolous)

Interbank Invs., LLC v. Eagle River Water & Sanitation Dist., 77 P.3d 814 (Colo. App. 2003) (law‑of‑the‑case principle binds later proceedings absent reason to depart)
City of Aurora ex rel. Util. Enter. v. Colo. State Eng’r, 105 P.3d 595 (Colo. 2005) (discussion of "credible evidence" standard and C.R.C.P. 41(b) dismissal principles)
Lybarger v. People, 807 P.2d 570 (Colo. 1991) (court need only determine whether evidence satisfies low statutory threshold for submission to factfinder)
W. United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984) (unsuccessful claim with factual basis does not automatically justify attorney‑fee sanctions)
Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo. 1993) (appellate attorney fees under § 13‑17‑102 available only for frivolous appeals)