2018 COA 173
Colo. Ct. App.2018Background
- Plaintiff Louella Patterson sued her late husband’s children and their lawyer, M. Tracy James, alleging various torts arising from probate actions; James moved to dismiss under C.R.C.P. 12(b)(5).
- The trial court granted dismissal, concluding the litigation privilege and strict privity barred Patterson’s claims.
- James sought attorney fees under § 13-17-201 (automatic fee award when a tort action is dismissed under Rule 12(b)); the trial court awarded fees and costs and entered judgment jointly and severally against Patterson and her attorney, Robert Lees.
- James also sought fees under § 13-17-102(2) (lack of substantial justification) for fees-on-fees; the trial court denied that request, finding no lack of substantial justification.
- Patterson and Lees appealed dismissal and the fee award (Lees also appealed the joint-and-several aspect); James cross-appealed the denial of fees-on-fees. The Court of Appeals affirmed and remanded for appellate-fee determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court convert the 12(b)(5) motion to summary judgment by considering extraneous exhibits, precluding § 13-17-201 fees? | Lees: conversion occurred because parties submitted exhibits; conversion would bar automatic fee statute. | James: although exhibits were submitted, the court did not consider them and thus did not convert the motion. | No conversion — court explicitly limited review to pleadings; § 13-17-201 fees remain available. |
| Did the litigation privilege bar Patterson’s tort claims against James? | Patterson: privilege was misapplied; pleading standard errors require reversal. | James: alleged acts were litigation-related (drafting pleadings, advice), so privilege grants absolute immunity. | Privilege applies; claims fail under either pleading standard. |
| May a court enter a joint-and-several fee judgment against plaintiff and plaintiff’s counsel under § 13-17? | Patterson/Lees: § 13-17-201 does not explicitly authorize joint-and-several awards; Lees contends authority is missing. | James: § 13-17-102(3) gives courts general authority to allocate fees among attorneys and parties, jointly or severally. | Held: § 13-17-102(3) authorizes joint-and-several fee awards under Article 17; trial court did not abuse discretion here. |
| Did the trial court improperly rely on an unpublished COA opinion in awarding fees? | Lees: citation policy forbids use of unpublished COA opinions as persuasion. | James: unpublished COA opinions have no precedential value but may be cited to trial courts for persuasive effect; C.A.R. controls precedential weight, not citation in trial court. | No error — trial court may consider unpublished COA opinions for persuasive value but they are nonprecedential. |
| Was denial of fees-on-fees (finding of lack of substantial justification) an abuse of discretion? | James: court should have found lack of substantial justification and awarded fees-on-fees under § 13-17-102(2). | Patterson/Lees: positions did not lack substantial justification. | Trial court did not abuse discretion in declining to find lack of substantial justification; denial stands. |
Key Cases Cited
- Buckhannon v. US W. Commc’ns, Inc., 928 P.2d 1331 (Colo. App. 1996) (litigation privilege bars tort claims based on statements made in litigation)
- Merrick v. Burns, Wall, Smith & Mueller, P.C., 43 P.3d 712 (Colo. App. 2001) (litigation immunity applies when duties are integral to judicial process)
- US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205 P.3d 512 (Colo. App. 2009) (purpose of §13-17-201 is to discourage unnecessary tort claims)
- Fladung v. City of Boulder, 438 P.2d 688 (Colo. 1968) (motion to dismiss is not a responsive pleading; plaintiff may amend before answer)
- Tallitsch v. Child Support Servs., Inc., 926 P.2d 143 (Colo. App. 1996) (factors for determining reasonableness of attorney fees)
- Dubray v. Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008) (prevailing party on appeal after Rule 12(b) dismissal may recover appellate attorney fees under §13-17-201)