Opinion by
Plaintiff, Jimmie R. Crow, M.D. (doctor), appeals from the district court's order awarding attorney fees to defendant, Pen-rose-St. Francis Health Services (Penrose). He asserts that (1) section 18-17-201, C.R.S. 2010, does not authorize an award of fees in this action, and (2) even if authorized, the award was unreasonable under the cireum-stances. We reject both of these assertions, affirm, and remand the case for a determina
I. Background
The controversy between the parties commenced in 2004 when doctor performed surgery on a patient who died shortly thereafter. Penrose initiated a peer review proceeding. Before it was completed, however, doctor commenced this action in which he asserted common law claims for breach of contract, negligence, and tortious interference, based upon the nature of his summary suspension and other preliminary actions taken by Penrose.
Penrose moved to dismiss doctor's complaint for failure to exhaust administrative remedies. Although the district court denied this motion, Penrose instituted an original action before the Colorado Supreme Court, which held that these "common law claims arising out of the peer review procedure are subject to the exhaustion of administrative remedies requirement" of section 12-36.5-106(7)-(8), C.R.98.2010. - Crow v. Penrose-St. Francis Healthcare Sys.,
Upon remand Penrose moved to dismiss doctor's complaint, Penrose sought an award of attorney fees and costs under section 13-17-201, which provides for an award of fees to a defendant in an action for "injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure." The district court initially denied the request, but after the action was dismissed under C.R.C.P. 12(b)(1), it reconsidered the request and entered an award of fees for Penrose in the amount of $131,361. It is from this award that doctor appeals.
While it is not directly relevant to the issues presented here, after completion of the administrative procedures, doctor commenced an action for review of the peer review board's decision under C.R.C.P. 106(a)(4), and shortly thereafter he filed an amended complaint in this action alleging breach of an implied contract. Penrose moved to dismiss the action under C.R.C.P. 12(b)(1), alleging that doctor's claims were not ripe because doctor was required to complete, and prevail in, the C.R.C.P. 106(a)(4) appeal before the original action could be refiled. The district court granted the motion to dismiss, but on appeal a division of this court held that the district court erred in dismissing doctor's complaint, and remanded the case to the district court for further proceedings. See Crow v. Penrose-St. Francis Healthcare Sys., No. 09CA2288,
II - Analysis
A. Award of Fees and Costs Under Section 13-17-201
Section 13-17-201 provides that an award of attorney fees is mandatory when a trial court dismisses a tort action under C.R.C.P. 12(b). See Barnett v. Denver Publ'y Co.,
1. Scope of 18-17-201
Doctor contends that section 18-17-201 is inapplicable to this action. We disagree.
Statutory interpretation is a question of law that we review de novo. CLPF-Parkridge One, L.P. v. Harwell Invs., Inc., 105 P.8d 658, 660 (Colo.2005); Cork v. Sentry Ins., 194 PS8d 422, 425 (Colo. When interpreting a statute, "[ojur primary duty ... is to ascertain and effectuate the intent of the General Assembly." Shelter Mut. Ins. Co. v. Mid-Century Ins. Co.,
Relying upon Krystkowiak v. W.O. Brisben Cos.,
It is certainly true that Krystkowiak stated that the statute has narrow application.
Moreover, section 18-17-201 has never been limited to the dismissal of "baseless" claims under C.R.C.P. 12(b)(5). In a number of cases awarding fees under this statute, the court did not pass upon the substantive merits of the claims dismissed. In several instances, fees have been awarded where the action has been dismissed under C.R.C.P. 12(b)(1) because of a lack of personal or subject matter jurisdiction without any mention of the merits of the claims being asserted. See, eg., Curtis v. Hyland Hills Park & Recreation Dist.,
Further, doctor's interpretation also contravenes the well-settled canon of judicial construction that the "interpretation should give consistent, harmonious, and sensible ef-feet to all parts of a statute." Jefferson OUnty. Bd. of Equalization,
Finally, the Colorado Supreme Court's most recent opinion on this subject, Crandall v. City & County of Denver,
Nor are we persuaded by doctor's argument that the applicable statute of limitations foreed him to file his common law claims before the administrative process was complete. His claims would not accrue until the administrative proceedings were completed. See Crow, 169 P.8d at 165 ("a physician must exhaust the administrative remedies of the [Colorado Professional Review Act], resulting in a final board action by the hospital, before filing a common law claim in court arising out of the peer review process").
We conclude, therefore, that section 13-17-201 is applicable not only to "baseless" tort claims that are dismissed under C.R.C.P. 12(b)(5), but also to any tort claim dismissed under the auspices of any provision of CRCP. 12. See Villalpando v. Denver Health & Hosp. Auth.,
2. Constitutionality of Section 18-17-201
Contrary to doctor's assertion, seetion 18-17-2011 is not unconstitutional be
8. Conversion of C.R.C.P. 12(b)(1) Motion
Doctor argues that, because the district court considered evidentiary materials submitted by Penrose that were not contained in the initial complaint, the court improperly treated the Rule 12(b)(1) motion as one for summary judgment. We disagree.
Section 18-17-201 creates a statutory exception to its general applicability: it does not apply if the motion to dismiss "is treated as a motion for summary judgment and disposed of as provided in rule 56 of the Colorado rules of civil procedure."
When a challenge is made to a district court's jurisdiction, however, it is often, indeed almost invariably, necessary for the court to consider information beyond the allegations of the complaint. Such consideration, however, does not turn the process into a summary judgment procedure. A jurisdictional issue is reviewed under C.R.C.P. 12(b)(1), not under CRCP. 12(b)(5) or C.R.C.P. 56. Trinity Broadcasting of Denver, Inc. v. City of Westminster,
Here, Penrose's motion and the court's ultimate judgment invoked C.R.C.P. 12(b)(1). C.R.C.P. 12(b)(5) was not implicated. Hence, the statutory exception for motions treated as motions for summary judgment was not applicable here.
4. Mixed Tort and Contract Claims
Doctor contends the statute is not intended to apply where equal numbers of contract and tort claims are asserted. We disagree.
In determining whether section 183-17-201 applies, the district court should focus on the manner in which claims are pled. Dubray v. Intertribal Bison Co-op.,
Here, there were four contract and four tort claims, all arising out of the same nucleus of facts. Further, doctor chose to include these tort claims to obtain relief beyond what was available solely under a breach of contract theory. See Dubray,
5. Remaining Contentions Regarding Section 18-17-201's Applicability
Contrary to doctor's assertion otherwise, the law of the case doctrine did not prevent the district court from awarding at-tormney fees under section 183-17-201. A court may, in its discretion, decline to apply the law of the case doctrine if it determines that its former ruling is no longer sound because of changed conditions, it needs to rectify its previous ruling because of a legal or factual error, an intervening change in the law has occurred, or its prior ruling would result in manifest injustice. Perez v. Wit-ham, 1 P.8d 262, 264-65 (Colo.App.1999); see also Broyles v. Fort Lyon Canal Co.,
Here, the district court found that the previous rulings denying Penrose's requests for attorney fees were erroneous because Penrose's Rule 12(b)(1) motion had not in fact been converted into a motion for summary judgment. Because the previous rulings were erroneous, the district court's decision not to apply the law of the case doctrine was not an abuse of discretion.
Doctor next contends that there is no basis for awarding attorney fees because he voluntarily relinquished his request for injunctive relief. Again, we disagree.
A party may avoid liability by seeking a voluntary dismissal or confession of the defendant's motion. - Employers Ins. v. RREEF USA Fund-II (Colo.), Inc.,
Contrary to doctor's assertion otherwise, Penrose did not have to request attorney fees at the same time it filed the Rule 12(b) motion to dismiss. Doctor has cited no case law, and we have found none in Colorado, to support this proposition. Indeed, section 13-17-201 makes no mention of such a requirement.
Accordingly, the district court correctly concluded that section 18-17-201 applied to this action.
B. Reasonableness of Fees and Costs
Doctor next contends that the amount of attorney fees awarded was unreasonable. We are not persuaded.
An award of attorney fees must be reasonable. Tallitsch v. Child Support Services, Inc.,
1. Customary Rates
Doctor contends that Penrose failed to establish customary rates for attorneys and paralegals in the local community where the litigation took place, and without establishing such rates, the district court could not determine if the hourly rates charged by Penrose's attorneys and paralegals, who work in another area, were reasonable. 1 We disagree.
When, as here, a statute providing for a fee award does not provide a specific definition of "reasonableness," the amount must be determined in light of all the circumstances, based upon the time and effort reasonably expended by the prevailing party's attorney. Tallitsch,
Although Colorado case law is clear that a district court may consider the fees customarily charged in the locality where the litiga
Instead, we note that Colorado case law allows the party contesting the reasonableness of the hourly rates charged to present evidence that the rates were not reasonable in light of community standards. Seq, e.g., Double Oak Constr.,
Penrose provided the following material to support its claim for attorney fees:
® an affidavit from Penrose's lead counsel, ML. Sabey, averring that the "attorneys' fees and costs reflected are consistent with the costs and fees customarily charged by attorneys with similar expertise in the Denver metropolitan area";
® biographical information for M.L. Sabey and P. Sabey;
® detailed billing records for the work performed in connection with the action by both the attorneys and paralegals;
e hourly rates for M.B. Sabey, D. Glasser, J. Edwards, M. Farmer, and P. Clark, together with a sampling of hourly rates charged by law firms for associates' time in different parts of the country.
Under the cireumstances, Penrose met its prima facie burden of establishing reasonableness by providing detailed billing records, an affidavit from its counsel, and other supporting documentation. See Madison Capital Co. v. Star Acquisition VIII,
Doctor's mere arguments regarding the alleged difference between the local area rates and the rates charged by Penrose's attorneys, cannot be viewed as evidence to rebut the materials Penrose presented. See City of Fountain v. Gast,
Likewise, contrary to doctor's contention, the fact that Penrose did not provide information about the experience and expertise of M.B. Sabey, D. Glasser, J. Edwards, M. Farmer, and P. Clark does not mean the district court could not determine that their fees were reasonable. Penrose's lead counsel averred that their rates were reasonable and provided the district court with a sampling of hourly rates charged for associates' time by law firms in different parts of the country. Again, doctor presented no evidence that these rates were unreasonable.
Thus, we cannot say the district court abused its discretion by determining the hourly rates charged by Penrose's counsel were reasonable when no evidence was presented to the contrary. P & M Vending Co. v. Half Shell of Boston, Inc.,
For the same reasons, we are not persuaded by doctor's argument that the reasonableness of the paralegal fees could not be established without providing evidence of customary rates charged by other paralegals in the local area. Again, no Colorado case law requires such proof, Penrose provided detailed billing records of their work and identified the paralegals' hourly rates, and doctor provided no evidence that the rates were unreasonable.
Accordingly, the district court did not abuse its discretion in determining that the fees requested were reasonable.
Doctor contends that the use of "block billing" (entering multiple tasks into a single time entry without specifying how much time was spent on each task) prevented the district court from determining if the amount of time spent on each task was reasonable. Contrary to doctor's contention, C.R.C.P. 121, § 1-22 does not require a particular type of billing format, nor does it prevent block billing. See generally Colo. RPC 1.5 emts. (block billing not prohibited).
Nor are we persuaded by doctor's contention that, because $22,000 of the block billing did not identify the subject matter of the activity, but only stated that "conferencing" took place, the district court could not determine if the amount spent was reasonable. We recognize that, in some instances of block billing, such a complaint might well be justified. Here, however, a review of the record reveals that, when the fee statement is read as a whole, the district court was able to determine how the referenced conferencing related to particular issues in the action.
8. Double Billing
Doctor also contends it was unreasonable to bill for two attorneys' time when they were discussing the action with each other. We disagree.
The district court did not abuse its discretion by finding that the attorneys may need to confer from time to time, given the complexity of the action. Nor was it was unreasonable to charge for two attorneys to prepare for oral arguments, especially on a complex procedural issue in front of the Colorado Supreme Court. See Ramos v. Lamm,
4. Compliance with C.R.C.P. 121, § 1-22(2)(b)
Doctor next contends that the district court abused its discretion by not requiring Penrose to comply strictly with C.R.C.P. 121, § 1-22(2)(b), which requires (1) that a motion for fees shall be filed within fifteen days of the judgment, and (2) that the motion "shall be accompanied by any supporting documentation, including materials evidencing the attorney's time spent." 'We are not persuaded, for two reasons.
In reviewing a trial court's decision regarding a party's failure to comply with this procedural rule, we apply an abuse of discretion standard. See Phillips v. Watkins,
First, the fifteen-day period is discretionary, see C.R.C.P. 121, § 1-22(2)(b), and under these cireumstances, the court did not abuse its discretion in allowing a late filing. Second, although C.R.C.P. 121, § 1-22(2)(b)'s language about the supporting doe-uments is mandatory, under the cireum-stances, we conclude that the district court did not abuse its discretion by allowing Pen-rose to submit proof of the amount of fees sought after the motion itself was filed.
Accordingly, based upon our review of the record, we conclude that Penrose presented sufficient evidence and documentation supporting the attorney and paralegal fees request, and we are not persuaded that the district court's findings regarding the reasonableness of the fees sought are either "patently erroneous" or "unsupported by the evidence." +See Double Oak Constr.,
III. Award of Fees for Appeal
Penrose requests an award of fees for defending this matter on appeal. We agree that Penrose's reasonable appellate fees should be awarded. See Walker v. Van Lan-ingham,
IV. Conclusion
The order is affirmed, and the case is remanded for a determination of reasonable attorney fees to be awarded to Penrose for this appeal.