Louella Maxine Patterson, Plaintiff-Appellant and Cross-Appellee, and Robert A. Lees, Attorney-Appellant and Cross-Appellee, v. M. Tracy James, Defendant-Appellee and Cross-Appellant.
No. 16CA2024 & 17CA1154
COLORADO COURT OF APPEALS
December 13, 2018
2018COA173
Honorable F. Michael Goodbee, Judge; Opinion by JUDGE TOW; Hawthorne and Bernard, JJ., concur
Adams County District Court No. 16CV30739
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
December 13, 2018
2018COA173
No. 16CA2024 & 17CA1154 Lees v. James — Attorney Fees — Tort Actions Dismissed Pursuant to
A division of the court of appeals considers whether a trial court that is granting attorney fees pursuant to section
The division also makes clear that a trial court may consider unpublished opinions of the court of appeals to the extent the trial court finds such opinions persuasive. Accordingly, the division affirms the trial court‘s judgment.
Division IV
Opinion by JUDGE TOW
Hawthorne and Bernard, JJ., concur
Announced December 13, 2018
Gill & Ledbetter, LLP, H. J. Ledbetter, Anne Whalen Gill, Castle Rock, Colorado, for Plaintiff-Appellant and Cross-Appellee
Robert A. Lees & Associates, Robert A. Lees, Greenwood Village, Colorado, for Attorney-Appellant and Cross-Appellee
Lewis Brisbois Bisgaard & Smith LLP, Nancy L. Cohen, Nicole Marie Black, Denver, Colorado, for Defendant-Appellee and Cross-Appellant
I. Background
¶ 2 After her husband passed away, plaintiff, Louella Maxine Patterson, felt that her husband‘s adult children had engaged in inappropriate conduct in pursuing certain actions related to her husband‘s estate. With the assistance of her attorney, Robert A. Lees, Patterson filed a tort action against the children and an attorney, M. Tracy James, who represented one of the children, Elizabeth Danford, in seeking appointment as personal representative of the estate. In this action, Patterson asserted
¶ 3 The complaint levied numerous allegations against James: that she drafted all or part of the legal documents and provided legal advice to Danford and her brother; that neither the will, the application for informal probate, nor the initial legal proceedings filed by James accounted for Patterson‘s elective share of homestead rights as the decedent‘s spouse or any other spousal rights; that James failed to notify Patterson that probate proceedings had been initiated; that James, Danford, and Danford‘s brother conspired and agreed to informal probate in an attempt to “slip it through the probate legal process” unnoticed; that although Patterson attempted to contact James and Danford with questions regarding legal documents she received, she never received follow-up contact; and that throughout these probate proceedings, James continued to unreasonably bill the estate.
¶ 5 Citing section
¶ 6 Patterson appeals the trial court‘s order dismissing her claims against James, and the order requiring her to pay James‘s attorney fees and costs. Lees appeals the trial court‘s order that he be jointly and severally liable for the fees and costs. James cross-appeals the denial of her request for fees on fees.
A. Leave to Amend the Complaint
¶ 7 Patterson and Lees both contend that instead of dismissing Patterson‘s complaint, the trial court should have permitted her to amend it. However, this argument is not properly before us, because Patterson never took any step to amend the complaint.
¶ 8 As a threshold issue, Patterson would not have needed leave of the court to file an amended complaint, because no responsive pleading had yet been filed.
¶ 9 Even if Patterson was required to seek leave to amend her complaint, she failed to preserve this issue. Patterson and Lees contend that this issue was preserved when Patterson requested to amend her complaint in her response to James‘s motion to strike
¶ 10 Here, Patterson mentioned in both responses that she should be permitted to amend her complaint if the court determined that the complaint was not clear. However, Patterson never explicitly requested leave to amend her complaint in a separate motion. Simply suggesting in other motions that Patterson would amend her complaint if the court believed the complaint was unclear is not a motion for leave to amend.
¶ 11 Furthermore, “it is incumbent on the moving party to see to it that the court rules on the matter [s]he urges,” and if the party fails to do so, she waives or abandons that argument on appeal. Feldstein v. People, 159 Colo. 107, 111, 410 P.2d 188, 191 (1966), abrogated on other grounds by Deeds v. People, 747 P.2d 1266 (Colo. 1987); see also Silverman v. Univ. of Colo., 26 Colo. App. 269, 280, 541 P.2d 93, 100 (1975) (applying a similar analysis in a
¶ 12 If Patterson believed that these aspirational statements were properly viewed as motions for leave to amend her complaint, she was obligated to urge the trial court to rule on the matter. Because Patterson failed to do so, she waived this argument on appeal. We therefore decline to address the contention further.
B. C.R.C.P. 12(b)(5) Motion to Dismiss
¶ 13 Lees and Patterson raise separate issues on appeal regarding the trial court‘s order granting James‘s Rule 12(b)(5) motion to dismiss. Lees contends that the trial court converted the motion to dismiss to a
¶ 14 Patterson contends that the trial court improperly dismissed her claims against James by misapplying the litigation shield and strict privity rule. Patterson also contends that the trial court
1. Standard of Review
¶ 15 Lees states that his issue was preserved at the hearing on attorney fees. Patterson states that her issue was preserved in a hearing memorandum regarding the new Rule 12(b)(5) standard of review and her response to the motion to dismiss. We agree that both issues were preserved.
¶ 16 We review de novo a trial court‘s ruling on a motion to dismiss. Yadon v. Lowry, 126 P.3d 332, 335 (Colo. App. 2005). We apply the same standards as the trial court, accepting all of the factual allegations in the complaint as true and viewing those allegations in the light most favorable to the plaintiff. Walker v. Van Laningham, 148 P.3d 391, 394 (Colo. App. 2006).
2. Conversion to a C.R.C.P. 56 Motion
¶ 17 On a motion to dismiss, if “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in
¶ 18 Here, Lees contends that “matters outside the pleading” were presented to the trial court when James and Patterson attached exhibits to their motion to dismiss and response to the motion to dismiss, respectively. However, there is no indication that the trial court considered these exhibits in ruling on James‘s motion to dismiss. To the contrary, the trial court explicitly acknowledged in its order that “the court may only consider matters stated within the complaint itself, and may not consider information outside of the confines of that pleading.” The trial court then itemized the specific allegations in the complaint related to James‘s conduct. Accordingly, because there is no indication that the trial court considered the extraneous material the parties had submitted, we cannot conclude that the trial court converted the motion to dismiss into a Rule 56 motion for summary judgment. The trial
3. Litigation Shield
¶ 19 An attorney‘s statements, even if defamatory, when made in the course of, or in preparation for, judicial proceedings in a filed case cannot be the basis of a tort claim if the statements are related to the litigation. Begley v. Ireson, 2017 COA 3, ¶ 13 (citing Buckhannon v. US W. Commc‘ns, Inc., 928 P.2d 1331, 1335 (Colo. App. 1996)). This litigation privilege exists to encourage and protect free access to the courts for litigants and their attorneys. Id.
¶ 20 The privilege not only shields attorneys from defamation claims arising from statements made in the course of litigation, but also bars other nondefamation claims that stem from the same conduct. Buckhannon, 928 P.2d at 1335. When the statements are integral to the judicial process, the immunity provided is absolute. Merrick v. Burns, Wall, Smith & Mueller, P.C., 43 P.3d 712, 714 (Colo. App. 2001). “It is necessary to consider the nature of the duties performed and whether such duties are an essential and integral part of the judicial process.” Id. The litigation privilege
¶ 21 Here, Patterson‘s claims against James arise from James‘s representation of the personal representative in the underlying probate litigation. Patterson alleged that James drafted and filed legal documents, provided legal advice on how to commence informal probate proceedings, and communicated (or failed to communicate) as counsel in the probate proceeding. Because all of these statements were essential to the judicial process, namely the representation of the personal representative in the probate proceedings and drafting the necessary pleadings, the litigation privilege applies, and James is thus entitled to absolute immunity as a matter of law.
¶ 22 Though not a statement protected by the litigation shield, the alleged failure to inform Patterson that probate proceedings had commenced is not actionable. “[A]n attorney‘s liability to a non-client is limited to the narrow set of circumstances in which the attorney has committed fraud or a malicious or tortious act,
4. Pleading Standard for a Motion to Dismiss
¶ 23 To survive summary dismissal for failure to state a claim under Rule 12(b)(5), a party must plead sufficient facts that, if taken as true, suggest plausible grounds to support a claim for relief. Warne v. Hall, 2016 CO 50, ¶ 24 (adopting a heightened standard of pleading in Colorado that requires a complaint to allege plausible grounds for relief, not merely speculative grounds).
¶ 24 In Warne, the supreme court adopted this new standard over the old standard requiring dismissal only if “the plaintiff can prove no set of facts in support of a claim that would entitle the plaintiff to relief.”3 Id. at ¶ 11. However, if a plaintiff has failed to state a claim under the old standard, then the claim necessarily does not
¶ 25 Because we conclude that the trial court did not misapply the litigation shield doctrine, Patterson‘s claim would fail under either Warne‘s plausible grounds standard or the old “no set of facts” pleading standard. Thus, we do not need to decide whether the trial court misapplied the pleading standard.
C. Attorney Fees
¶ 26 Lees and Patterson also raise separate issues on appeal regarding the trial court‘s order granting attorney fees and costs jointly and severally against them. Lees raises three issues pertaining to this order: (1) the trial court erred in awarding attorney fees jointly and severally under section
¶ 28 On cross-appeal, James contends that the trial court erred in failing to make factual findings when it ruled on James‘s motion for attorney fees and costs and declined to assess fees on fees under section
1. Standard of Review
¶ 29 Lees and Patterson both state that their issues were preserved in Patterson‘s response to James‘s request for a ruling on her motion for attorney fees and costs. James states that her issue was preserved in briefing in support of her request for attorney fees. We agree that these issues were preserved.
¶ 30 We review the trial court‘s decision to award attorney fees and costs for an abuse of discretion, but we review the legal conclusions which provide the basis for that decision de novo. Jorgensen v. Colo. Rural Props., LLC, 226 P.3d 1255, 1259 (Colo. App. 2010). A
2. Joint and Several Liability
¶ 31 Our primary task when construing a statute is to give effect to the General Assembly‘s intent, which is determined first by looking to the plain language of the statute. Bostelman v. People, 162 P.3d 686, 689-90 (Colo. 2007). We consider statutes as a whole in order to effectuate legislative intent, and we give consistent, harmonious, and sensible effect to all the statute‘s parts. Colo. Dep‘t of Revenue v. Cray Computer Corp., 18 P.3d 1277, 1281 (Colo. App. 2001). However, where “a literal interpretation of the statute . . . leads to an absurd result,” the intent of the legislature will prevail. AviComm, Inc. v. Colo. Pub. Utils. Comm‘n, 955 P.2d 1023, 1031 (Colo. 1998).
¶ 32 Article 17 of Title 13 provides Colorado courts with the authority to award attorney fees in certain circumstances.
¶ 34 Section
¶ 35 Nothing in either of the specific mandates, however, exempts the concurrent application of the general rule set forth in section
¶ 37 Nor do we discern any abuse of discretion by the trial court in its decision to enter the fee judgment jointly and severally. In exercising this authority, a trial court should allocate sanctions between the attorney and the client according to their relative degrees of responsibility for the violation of the act. Anderson Boneless Beef, Inc. v. Sunshine Health Care Ctr., Inc., 878 P.2d 98, 101 (Colo. App. 1994). The record amply supports the trial court‘s conclusion that Lees was the driving force behind the strategic decisions. As to Patterson, the trial court explicitly acknowledged
3. Reliance on Unpublished Case
¶ 38 Lees also argues that the trial court erred when it considered an unpublished court of appeals opinion that James provided to the court. He argues that both counsel‘s citation to an unpublished opinion and the trial court‘s consideration of that case for its persuasive impact run afoul of the court of appeals‘s “Policy Concerning Citation of Unpublished Opinions.” This policy provides that “citation of unpublished opinions is forbidden, with the following exceptions: (1) [u]npublished opinions may be cited to explain the case history or to establish the doctrines of law of the case, res judicata, or collateral estoppel.” Colorado Court of
¶ 39 The Colorado Supreme Court exercises administrative authority over the courts of this state. See, e.g.,
¶ 40 Exercising its administrative authority, the supreme court has promulgated the Colorado Appellate Rules, including
¶ 41 That being said, we do not mean to suggest that a trial court must consider such decisions at all. We simply acknowledge that unpublished does not mean confidential, and that our unpublished opinions are routinely shared among, for example, certain practice groups and specialty bars. As a result, it is not uncommon for trial courts to be asked to consider such an opinion. Because
¶ 42 We also stress that our opinion is in no way intended to impose an obligation on counsel to cite to unpublished opinions. Indeed, there is at present no comprehensive searchable database
¶ 43 Finally, we note with approval that, in this case, the opposing party was provided with a copy of the unpublished opinion and given the opportunity to argue its persuasive value to the trial court. Should a party wish the court to consider an unpublished opinion, or should a court on its own discover such an opinion it finds persuasive, all parties should be provided with similar notice and an opportunity to be heard.
4. Reliance on Improper Evidence
¶ 44 Lees‘s argument that the trial court relied on improper evidence in arriving at the fee award is also unavailing. When a statute providing for an attorney fee award does not provide a specific definition of “reasonableness,” the amount must be determined in light of all the circumstances, based on the time and effort reasonably expended by the prevailing party‘s attorney. Tallitsch v. Child Support Servs., Inc., 926 P.2d 143, 147 (Colo. App. 1996). In awarding attorney fees, a trial court may consider (1) the
¶ 45 Here, James met her burden of establishing reasonableness by providing testimony at the evidentiary hearing as well as sworn affidavits prior to the hearing. Both James and her attorney testified at the hearing. And each affidavit was supported by a redacted fee bill. Because it is not improper for the trial court to consider testimony and affidavits in determining the reasonableness of an attorney fee award under section
¶ 46 Section
¶ 47 Here, with respect to the opposition to both the motion to dismiss and the motion for attorney‘s fees, the trial court explicitly declined to find that Patterson‘s or Lees‘s positions lacked substantial justification. We cannot say this determination was an abuse of the court‘s discretion.
D. Appellate Attorney Fees
¶ 48 Lastly, James requests an award of attorney fees incurred defending this appeal under section
III. Conclusion
¶ 49 The judgment is affirmed. We remand the case to the trial court to enter an award of reasonable attorney fees incurred by James in defending this appeal.
JUDGE HAWTHORNE and JUDGE BERNARD concur.