Carmelita GOMEZ, Plaintiff-Appellant, v. Ryan WALKER, Defendant-Appellee.
Court of Appeals No. 22CA0468
Colorado Court of Appeals, Div. III.
September 14, 2023
Prior Opinion Announced July 13, 2023, WITHDRAWN, Petition for Rehearing GRANTED Announced September 14, 2023
540 P.3d 936 | 2023 COA 79
Opinion by JUDGE LUM
City and County of Denver District Court No. 19CV32345, Honorable Michael J. Vallejos, Judge, Honorable Stephanie L. Scoville, Judge
Jeremy R. Maline & Associates, Andrew M. LaFontaine, Westminster, Colorado, for Defendant-Appellee
Opinion by JUDGE LUM
¶1 Plaintiff, Carmelita Gomеz, appeals the district court‘s dismissal of her complaint against defendant, Ryan Walker. She contends that the district court erred by dismissing her complaint as untimely and awarding Walker his attorney fees and costs. Because we determine that section
I. Background
¶2 Gomez and Walker were involved in a car crash on June 15, 2016. Gomez filed her complaint on June 17, 2019, alleging that Walker negligently collided with her, causing her to suffer injuries.
[1] ¶3 Walker moved to dismiss Gomez‘s complaint under
¶4 Initially, the district court аgreed with Gomez, concluding that the limitations period ended on June 17, 2019, and it denied Walker‘s motion to dismiss. However, in April 2021, a division of this court published Morin v. ISS Facility Services, Inc., 2021 COA 55, 487 P.3d 1289, which had a similar fact pattern. In Morin, the division held that
¶5 Relying on Morin, the district court granted the rеnewed motion and dismissed Gomez‘s claims as untimely. Gomez moved for reconsideration, which the district court denied. Walker moved for, and was granted, attorney fees and costs. Gomez appeals.
II. Statute of Limitations
¶6 The parties agree that (1) Gomez‘s claims were subject to the three-year statute of limitations prescribed by section
A. Standard of Review and Applicable Law
[2] ¶7 “We review de novo a district court‘s dismissal of an action based on a statute of limitations defense.” Williams v. Crop Prod. Servs., Inc., 2015 COA 64, ¶ 3, 361 P.3d 1075. The issues raised in this appeal also
[3–5] ¶8 In construing a statute, our primary task is to givе effect to the General Assembly‘s intent, which we do by first looking to the plain language of the statute. Elder v, Williams, 2020 CO 88, ¶ 18, 477 P.3d 694. We construe words and phrases according to their common usage unless they have acquired a technical or particular meaning, whether by legislative definition or otherwise.
B. Sections 2-4-108(2) and 13-80-101(1)
[6, 7] ¶9 As an initial matter, we agree with Gomez‘s contention that Morin does not control, or even address, whether section
¶10 Sections
¶11 Section
¶12 “Any” means “one or some indiscriminately of whatever kind.” Merriam-Webster Dictionary, https://perma.cc/J97F-NUD7. The plain meaning of “any period” is inclusive; it does not exclude a certain period. Therefore, the plain language of section
¶13 Section
[8] ¶14 It is tempting to give effect to both statutes by simply applying the language of section
¶15 However, we must also give effect to the phrase “and not thereafter,” Wolford v. Pinnacol Assurance, 107 P.3d 947, 951 (Colo. 2005) (“[W]e must interpret a statute to give effect to all its parts and avoid interpretations that render statutory provisions redundant or superfluous.“). When read in conjunction with the rest of section
[9] ¶16 “If giving effect to both statutes is not possible, the more specific provision prevails ovеr a more general provision.” Morin, ¶ 10; see also
¶17 Section
[10, 11] ¶18 Even if we were unable to determine which statute is more specific, section
C. Equitable Tolling
[12] ¶19 We reject Gomez‘s contention that principles of equity apply to extend the stаtute of limitations period in this matter.5
[13] ¶20 “At times … equity may require a tolling of [a] statutory period where flexibility is required to accomplish the goals of justice” Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996). Colorado has applied the doctrine of equitable tolling “where the defendant‘s wrongful
¶21 While Gomez contends, without citation to the record, that Walker engaged in wrongful conduct, she does, not assert that Walker‘s conduct prevented her from timely filing her claim.
[14] ¶22 The heart of Gomez‘s contention is that she should be entitled to rely on her good faith, erroneous interpretation of the interplay between sections
¶23 Accordingly, we conclude that Gomez‘s claim is time barred.
III. Construction of “Renewed Motion to Dismiss”
¶24 Gomez contends that the district court erred by construing Walker‘s “renewed motion to dismiss” as one to reconsider its original order denying dismissal under Rule 12(b)(5) rather than as a motion fоr judgment on the pleadings under Rule 12(c). While resolution of this issue does not affect the outcome of our statutory analysis, it bears on whether Walker is entitled to attorney fees under section
[15, 16] ¶25 Walker contends that Gomez did not preserve this claim for review because she did not raise her Rule 12(c) argument until her motion to reconsider. And, Walker continues, although the district court ruled on Gomez‘s Rule 12(c) argument, its ruling was untimely and thus cannot form the basis for appellate review.6 We agree.
[17] ¶26 Ordinarily, arguments raised for the first time in a post-trial motion are unpreserved. Briargate at Seventeenth Ave. Owners Ass‘n v. Nelson, 2021 COA 78M, ¶ 66, 494 P.3d 1149. But “where a trial court addresses an argument, whether that argument was preserved is moot.” In re Estate of Ramstetter, 2016 COA 81, ¶ 71 n.7, 411 P.3d 1043.
¶27 After the district court dismissed Gomez‘s action as untimely, Gomez filed a post-trial motion under
¶28 While the district court‘s ruling oh Gomez‘s Rule 12(c) argument would normally allow us to review that otherwise-unpreserved contention, the ruling was void. The district court was required to rule on Gomez‘s motion within sixty-three’ days of the date it was filed but failed to do so.
¶29 Gomez also asserts that the district court should have denied Walker‘s renewed motion to dismiss because it was procedurally and legally deficient. But even if Walker‘s motion was defective, “[a] trial court has inherent authority to reconsider its own rulings” and “may exercise this authority any time before it enters a final judgment.” Graham v. Zurich Am. Ins. Co., 2012 COA 188, ¶ 18, 296 P.3d 347. Because the district court had the authority to reconsider its prior order in the absence of any motion at all, we discern no reversible error.
IV. Attorney Fees and Costs
¶30 Gomez contends that the district court did not have jurisdiction to enter an award of attorney fees and costs to Walker after it dismissed her complaint. And even if it did, she argues that the court abused its discretion by entering an unreasonable award. We disagree.
A Additional Background
¶31 After the court dismissed Gomez‘s complaint, Walker moved for attorney fees under section
¶32 Walker requested a total of $30,281.25 in attorney fees. The billing rate for both Walker‘s attorney and the attorney‘s paralegal was $125 per hour. Gomez did not contest the reasonableness of the hourly rate but did contest the number of hours spent on specific tasks, including drafting the original and renewed motions to dismiss and replies in support thereof; reviewing files, medical records, disclosures, and discovery; preparing for depositions; preparing discovery respоnses; and compiling the affidavit of attorney fees.
¶33 Walker also requested a total of $41,501.12 in costs, mostly for fees paid to Biodynamic Research Corporation (BRC), which provided expert witness services relating to accident reconstruction and causation, and to Dr. Hal Wortzel, an independent medical examiner. Gomez‘s primary arguments before the district court were that (1) the majority of the BRC reports was “filler,” “boiler plate,” or “genеralized” material that was present in all reports and did not require “thought or analysis“; and (2) BRC did not engage in “true analysis,” but rather reached a “foregone” conclusion. Similarly, Gomez asserted that Dr. Wortzel‘s report was “(nearly) cookie cutter identical” to reports he prepared in other cases. Gomez did not request a hearing relating to the reasonableness of the attorney fees or expert costs.
B. Standard of Review arid Applicable Law
¶34 Section
[18–22] ¶35 An attorney fee award must be reasonable. Crow v. Penrose-St. Francis Healthcare Sys., 262 P.3d 991, 998 (Colo. App. 2011). “The reasonableness of attorney fees is a question of fact for the district
A court makes an initial estimate of a reasonable attorney fee by calculating the lodestar amount. The lodestar amount represents the number of hours reasonably expended on the case, multiplied by a reasonable hourly rate. The court‘s calculation of the lodestar amount carries with it a strong presumption of reasonableness.
Payan v. Nash Finch Co., 2012 COA 135M, ¶ 18, 310 P.3d 212. (citations omitted).
[23] ¶36 Rule 54(d) and sections
[24, 25] ¶37 Costs include reasonable expert witness fees. See Clayton v. Snow, 131 P.3d 1202, 1203 (Colo. App. 2006). In exercising its discretion to determine whether such fees are reasonable, a district court must answer two questions: “1. Were the expert‘s services reasonably necessary to the party‘s case? 2. Did the party expend a reasonable amount for the expert‘s services?” Danko, ¶ 71. A court‘s findings “must include an explanation of whether and which costs are deemed reasonable.” Id. at ¶ 72 (citation omitted).
C. Analysis
[26, 27] ¶38 We first reject Gomez‘s contention that the district court was deprived of subject matter jurisdiction to award attorney fees and costs due to the expiration of the statute of limitations period. “[I]n civil actions, an expired statute of limitations is simply an affirmative defense that deprives the plaintiff of a remedy. It does not deprive the trial court of jurisdiction.” Grear v. Mulvihill, 207 P.3d 918, 922 (Colo. App. 2009).9
[28] ¶39 Regarding attorney fees, the district court determined that the number of hours expended was reasonable in relation to the work performed, though it deducted one four-hour charge as not properly shifted to Gomez. On appeal, Gomez largely repeats the arguments she made before the district court in claiming the hours were excessive, and she asserts that the district court abused its discretion by finding those hours “reasonable.” Because Gomez did not request a hearing, the record evidence relating to reasonableness is documentary in nature: the fee affidavits; Walker‘s motion and renewed motion to dismiss, along with the replies in support thereof; Gomez‘s expert witness disclosures; Walker‘s discovery responses; a deposition transcript; and certain communications between the parties relating to discovery disputes. Having reviewed these documents and Gomez‘s objections to the hours spent on them, we cannot say that the court‘s findings of reasonableness relating to these items lack evidentiary support or are “patently erroneous.” Crow, 262 P.3d at 998 (quoting Double Oak Constr., 97 P.3d at 152).
[29, 30] ¶40 We note that Gomez also asserts Walker‘s counsel spent an excessive number of hours on review or preparation of many other documents that are absent from the record. As the appellant, Gomez “is responsible for providing an adequate record to demonstrate her claims of error, and absent such a record, we must presume the evidence fully supports the trial court‘s ruling.” Clements v. Davies, 217 P.3d 912, 916 (Colo. App. 2009).
¶41 In its order awarding costs, the district court noted that it had reviewed the documentation relating to the experts’ charges and concluded that the costs were reasonably necessary to Walker‘s defense given that the issues of causation and the extent of Gomez‘s injuries—both matters
¶42 On appeal, Gomez statеs only that “the amount of … billing for simple reports is plainly unreasonable on its face.” Gomez does not explain whether she takes issue with the number of hours spent on the reports or the hourly rates of the professionals, and she does not identify any evidence in the record that would have supported her claim that the expert reports did not reflect independent analysis but rather were copied from prior reports the experts had submitted in other cases.
¶43 Having reviewed the lengthy and detailed BRC report in the record, we cannot say that the costs are facially unreasonable or that the district court abused its discretion. Dr. Wortzel‘s report is not in the record; therefore, we presume it supports the district court‘s ruling. Id.
¶44 Accordingly, we conclude that the district court did not err by awarding Walker his attorney fees and costs, and we affirm that order.
V. Appellate Attorney Fees
[31] ¶45 We agree with Walker that, because he has successfully defended a dismissal order, he is entitled to recover reasonable attorney fees incurred on appeal. See Kreft v. Adolph Coors Co., 170 P.3d.854, 859 (Colo. App. 2007). Therefore, we remand the case to the district court to determine the amount of Walker‘s reasonable attorney fees incurred in connection with this appeal. See C.A.R. 39.1.
VI. Disposition
¶46 The judgment is affirmed, the order for costs and fees is affirmed, and the case is remanded for proceedings consistent with this opinion.
JUDGE BERNARD * and JUDGE GRAHAM* concur.
*Sitting by assignment of the Chief Justice under provisions of
Notes
In his petition for rehearing, Walker directly addresses the effect of the untimeliness of the reconsideration order on the issue of preservation. While we do not address arguments, raised for the first time in a petition for rehearing, see People v. Gallegos, 260 P.3d 15, 29 (Colo. App. 2010), we conclude that Walker‘s argument—that Gomez‘s 12(c) contention was unpreserved because it was first raised m the motion to reconsider and that the order addressing that argument was untimely and therefоre void—was sufficiently raised in the answer brief for us to consider it now.
We modify our opinion because the petition for rehearing raises a valid preservation argument that the division overlooked and because we have an independent affirmative obligation to verify preservation People v. Tallent, 2021 CO 68, ¶ 11, 495 P.3d 944. However, we note that Judges are not “required to hunt down arguments [the parties] keep camouflaged,” William v Eastside Lumberyard & Supply Co., 190 F. Supp. 2d 1104, 1114 (S.D. Ill. 2001), or “speculate as to what, a party‘s argument might be,” People v. Palacios, 2018 COA 6M, ¶ 29, 419 P.3d 1014 (quoting Beall Transp. Equip. Co. v. S. Pac. Transp., 186 Or.App. 696, 64 P.3d 1193, 1196 n.2 (2003)).