COLORADO COURT OF APPEALS
2016COA182
Court of Appeals No. 15CA1824
Larimer County District Court No. 13PR30246
Honorable Devin R. Odell, Judge
Barry L. Bruce,
Attorney-Appellant,
v.
Jay A. Roberts and Ashley Roberts McNamara, as Co-Trustees of the Della I.
Roberts Trust,
Petitioners-Appellees.
ORDER VACATED IN PART AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE NAVARRO
Webb and Hawthorne, JJ., concur
Announced December 15, 2016
Jackson Kelly PLLC, John S. Zakhem, John L. Skari, Jr., Benjamin Ross,
Denver, Colorado, for Appellant
Davis Graham & Stubbs LLP, John M. Bowlin, Denver, Colorado, for Appellees
¶1 A Colorado court must award attorney fees against a party
who presents the court with a claim or defense lacking substantial
justification. § 13-17-102(2), C.R.S. 2016. But can a Colorado
court award fees under section 13-17-102 for an unjustified claim
presented to a foreign court?
¶2 This question is raised by appellant, Barry L. Bruce, an
attorney assessed with opposing counsels’ fees under section
13-17-102 for legal work performed in both the underlying Larimer
County estate matter and a collateral action in West Virginia.
Relying on the language of section 13-17-102 and Board of County
Commissioners v. Kraft Building Contractors, 122 P.3d 1019 (Colo.
App. 2005), Bruce argues that the district court lacked authority to
award attorney fees incurred solely in the West Virginia case.
Appellees, Jay A. Roberts and Ashley Roberts McNamara, respond
that In re Estate of Leslie,
886 P.2d 284, 288 (Colo. App. 1994),
supports the court’s award.
¶3 We conclude that Kraft properly applied the plain language of
section 13-17-102 and that Leslie is distinguishable. To the extent
that Leslie may conflict with our decision, however, we decline to
follow that case. Following Kraft instead, we vacate the district
1
court’s order as it pertains to attorney fees incurred in the West
Virginia action and remand for further proceedings.
I. Facts and Proceedings
¶4 In 1996, Della Roberts, assisted by her son James Roberts,
formed the Della I. Roberts Trust in Colorado, where she lived. She
died eight days later.
¶5 Upon Della’s death, James, the designated trustee, was
supposed to divide the trust’s assets into two equal shares. The
first share was intended to benefit James and his wife, Mary Sue
Roberts. The second share was intended to benefit Della’s
grandchildren, the children of James and Mary Sue. The trust
instrument further provided that James was to distribute to Della’s
grandchildren “at least monthly and in equal amounts, all of the net
income from their trust share.”
¶6 James did not properly administer the trust. Apparently,
however, no one expressed concern over his administration until
after he died in October 2012. Upon his death, Mary Sue assumed
the role of trustee pursuant to the trust’s provisions. As such, she
was supposed to distribute equally all principal remaining from the
trust’s second share to Della’s grandchildren. But a majority of the
2
grandchildren promptly removed Mary Sue as trustee (as permitted
by the trust instrument), citing concerns that trust assets had
already been squandered and she might not properly distribute any
remaining assets. These grandchildren then sought the trust’s
financial records and a corporate fiduciary willing to assume the
role of trustee.
¶7 Unable to obtain either the financial records or a willing
corporate fiduciary, two grandchildren — Jay A. Roberts and Ashley
Roberts McNamara — brought this probate action on behalf of the
trust. (We will refer to them as “trustees” because they were
ultimately appointed trustees.) Their initial petition sought an
order appointing a successor trustee. They then sought the records
necessary to complete a historical accounting for the trust, marshal
and distribute the remaining assets, and finally dissolve the trust.
¶8 Mary Sue objected to the petition on jurisdictional grounds.
Citing her and James’s move from Colorado to West Virginia in
1999, she argued that West Virginia courts had exclusive
jurisdiction over the trust. In June 2013, the district court rejected
the jurisdictional challenge and concluded that Larimer County,
Colorado, was the appropriate venue.
3
¶9 Meanwhile, Mary Sue filed a separate case in West Virginia
state court. She asked that court to assume jurisdiction over the
trust, and she sought (among other things) a temporary restraining
order and an injunction to prevent dissolution of the trust.
Trustees removed the case to the federal district court in West
Virginia. After a hearing, the federal court dismissed the West
Virginia action in November 2013, concluding that “jurisdiction over
the trust is properly in Colorado.” Mary Sue appealed this decision
to the Fourth Circuit but then voluntarily dismissed her appeal.
The record does not reveal whether trustees sought an attorney fees
award from the federal courts in the West Virginia action. On
appeal, Bruce asserts that trustees did not apply for fees in the
federal courts; trustees have not disputed his assertion.
¶ 10 Back in Colorado, the district court accepted a final
accounting of the trust filed by trustees, ordered all assets
remaining in the trust be distributed to the grandchildren in equal
shares, and found that the trust could recover administrative costs
and attorney fees incurred in litigating both the Colorado and West
Virginia cases, pursuant to section 13-17-102.
4
¶ 11 Bruce represented Mary Sue in both the Colorado and West
Virginia matters. The district court awarded attorney fees for the
Colorado matter ($7325) in favor of the trust and against both
Bruce and Mary Sue’s local counsel, jointly and severally. The
court assessed fees against Bruce for the West Virginia action
($54,565).
II. Analysis
¶ 12 Bruce appeals the district court’s order only as it pertains to
attorney fees awarded for the West Virginia action. He contends
that section 13-17-102 did not authorize the court to award
attorney fees incurred solely in the West Virginia case.1 Based on
the plain language of the statute, Bruce is right, except to the
extent that trustees used in this case any work product created for
the West Virginia federal action. Because the record does not reveal
whether they did so, further proceedings are necessary to address
1 Bruce seems to present two claims in his opening brief: (1) the
district court lacked authority to impose fees incurred in the West
Virginia case and (2) the court did not conduct the proper inquiry to
determine the amount of the award. He acknowledges in his reply
brief, however, that “[t]he only issue before this Court is whether
the Trial Court has jurisdiction to award attorneys’ fees billed in a
case before the Federal District Court of the Southern District of
West Virginia.”
5
this exception. For these reasons, we vacate the order in part and
remand for resolution of this question.
A. Relevant Law and Standard of Review
¶ 13 A court considering whether to award attorney fees must begin
with the American Rule, “which precludes an award of attorney fees
absent a specific contractual, statutory, or procedural rule
providing otherwise.” City of Aurora ex rel. Util. Enter. v. Colo. State
Eng’r, 105 P.3d 595, 618 (Colo. 2005); see L & R Expl. Venture v.
CCG, LLC,
2015 COA 49, ¶ 20 (stating that Colorado follows the
American Rule requiring each party in a lawsuit to bear its own
legal expenses). Article 17 of title 13 specifically provides otherwise
and sets forth a limited basis for awarding attorney fees. As
relevant here, section 13-17-102 authorizes an attorney fees award
if a court finds an attorney or party brought or defended a civil
action that “lacked substantial justification,” either in whole or in
part. § 13-17-102(2); see § 13-17-102(4) (defining the phrase
“lacked substantial justification”).
¶ 14 But does section 13-17-102 also authorize a Colorado court to
award attorney fees for frivolous litigation occurring not in that
court but in a separate (though related) matter occurring in a
6
foreign court?2 This question presents a statutory interpretation
issue that we review de novo. Sperry v. Field, 205 P.3d 365, 367
(Colo. 2009); see also Madison Capital Co. v. Star Acquisition VIII,
214 P.3d 557, 560 (Colo. App. 2009) (“We review de novo the legal
analysis employed by the trial court in reaching its decision to
award attorney fees.”).
¶ 15 The primary goal of statutory interpretation is to ascertain and
give effect to the General Assembly’s intent. St. Vrain Valley Sch.
Dist. RE-1J v. A.R.L.,
2014 CO 33, ¶ 10. To determine this intent,
we look first to the statute’s plain language. Vigil v. Franklin,
103
P.3d 322, 327 (Colo. 2004). “[W]e must accept the General
Assembly’s choice of language and not add or imply words that
simply are not there.” People v. Benavidez,
222 P.3d 391, 394
(Colo. App. 2009). We must also read the language in the context of
the statute as a whole, giving consistent, harmonious, and sensible
effect to all its parts. Jefferson Cty. Bd. of Equalization v. Gerganoff,
241 P.3d 932, 935 (Colo. 2010); see also Copeland v. MBNA Am.
Bank, N.A.,
907 P.2d 87, 90 (Colo. 1995) (“[A] statute should be
2Bruce does not contest the district court’s finding that the defense
asserted in this case and the claim presented in the West Virginia
case both lacked substantial justification.
7
interpreted in a manner that gives effect to all its provisions and
policy objectives, and not in a way that renders one or more of its
parts or goals inoperative.”).
B. Application
1. District Court’s Reasoning
¶ 16 In its “Order Regarding Attorney Fees,” the district court
concluded that, unlike subsections (1) and (2) of section 13-17-102,
subsection (4) granted broad authority to award attorney fees
incurred in any civil action, even an action not litigated in a
Colorado court. The court explained:
Nothing in this subsection [(4)], in contrast to
C.R.S. § 13-17-102(1) and (2) (requiring that
an award must be “in any civil action of any
nature commenced or appealed in any court of
record in this state”), limits the term “an
action” to an action in Colorado state court
and thus it does not preclude, by its plain
language, an award of attorney fees in a
Colorado case that were incurred in an action
in another jurisdiction, as long as that action
affected the Colorado “proceeding.”
In this case, the Court found that the West
Virginia action was “a bad faith effort to delay
and impede the [trustees’] efforts to resolve the
issues before this Court.” In other words, the
Court finds that the West Virginia litigation —
as a frivolous attack on this Court’s
jurisdiction — lacked substantial justification,
8
was interposed for delay, and unnecessarily
expanded this proceeding and therefore falls
within the term “an action” in C.R.S. §
13-17-102(4).3
Although the Court can find no precedent for
such an award, it determines, given its
exclusive jurisdiction over the Trust, as well as
its broad equitable powers in resolving issues
regarding the Trust, and the fact that it has a
complete record of the full scope of this
litigation (unlike the federal district court,
which limited its consideration to the issue of
jurisdiction), that it is appropriate in this case
for the Court to assess attorney fees incurred
in the related West Virginia action.
¶ 17 The district court’s conclusion, however, conflicts with Kraft.
There, a division of this court considered an action filed in Colorado
state court, removed to federal court, and remanded back to state
3 While the district court found that Bruce filed the West Virginia
case to delay these Colorado proceedings, the court did not describe
how the West Virginia case actually delayed these proceedings or
expanded them. The appellate record does not show (and the
parties do not assert) that the court stayed this case pending
resolution of the West Virginia case or that the West Virginia case
affected the resolution of this case in any other tangible way —
other than the effort associated with trustees’ request for an award
of attorney fees incurred in West Virginia. Although section
13-17-102, C.R.S. 2016, would have permitted the district court to
award fees incurred for additional litigation in this case that was
caused by the West Virginia matter (if any had occurred), the
statute did not authorize the award for fees incurred in the West
Virginia case unless those fees related to work product also used in
this case, as we shall explain.
9
court. Kraft, 122 P.3d at 1021. On remand, the Colorado district
court awarded defendants attorney fees for work performed at all
stages of the litigation pursuant to section “13-17-101, et seq.” Id.4
The award included fees for actions taken while the matter was
pending in federal court.
Id. at 1021-22.
¶ 18 On appeal, the plaintiff contended that the trial court lacked
authority to award attorney fees incurred solely in the federal court
proceedings.
Id. at 1022. The Kraft division agreed and held that
section “13-17-101, et seq.” — which includes section 13-17-102 —
did not authorize an award of attorney fees incurred for work
performed in the federal court unless the work product was also
used in the state proceedings.
Id. at 1026.5 Another division of this
4 The trial court in Board of County Commissioners v. Kraft Building
Contractors,
122 P.3d 1019 (Colo. App. 2005), also awarded fees
under C.R.C.P. 11 and C.R.C.P. 121, section 1-15(7). Because
those rules are not at issue here, we simply discuss Kraft’s
application of the statutes.
5 In support, the division pointed to analogous cases from other
jurisdictions: Major v. First Virginia Bank-Central Maryland,
631
A.2d 127 (Md. Ct. Spec. App. 1993), and Lopez-Flores v. Hamburg
Township,
460 N.W.2d 268 (Mich. Ct. App. 1990). Both cases
rejected fee awards for legal work conducted solely before a federal
court, with one concluding that such awards should be left to the
judge presiding over the federal action, “not a [state] court judge
10
court has followed Kraft. See Kennedy v. King Soopers Inc., 148
P.3d 385, 389 (Colo. App. 2006) (“A state court may award attorney
fees for work in federal court if the work produced during the
federal proceedings is also used in the state court proceedings.”).
¶ 19 The plain language of section 13-17-102 supports the holding
of Kraft. Subsection (2) requires a Colorado court to award attorney
fees in any civil action brought in that court if such action or a
defense thereto lacked substantial justification:
Subject to the limitations set forth elsewhere
in this article, in any civil action of any nature
commenced or appealed in any court of record
in this state, the court shall award, by way of
judgment or separate order, reasonable
attorney fees against any attorney or party who
has brought or defended a civil action, either
in whole or in part, that the court determines
lacked substantial justification.
§ 13-17-102(2) (emphasis added); see also § 13-17-102(1) (“Subject
to the provisions of this section, in any civil action of any nature
commenced or appealed in any court of record in this state, the court
may award, except as this article otherwise provides, . . . reasonable
attorney fees.”) (emphasis added).
who had no jurisdiction over that case.” Lopez-Flores, 460 N.W.2d
at 270.
11
¶ 20 Subsection (4), read in harmony with subsections (1) and (2),
clarifies the process for invoking the court’s authority to award fees
and the conduct for which the court may exercise that authority:
The court shall assess attorney fees if, upon
the motion of any party or the court itself, it
finds that an attorney or party brought or
defended an action, or any part thereof, that
lacked substantial justification or that the
action, or any part thereof, was interposed for
delay or harassment or if it finds that an
attorney or party unnecessarily expanded the
proceeding by other improper conduct,
including, but not limited to, abuses of
discovery procedures available under the
Colorado rules of civil procedure or a
designation by a defending party under section
13-21-111.5(3) that lacked substantial
justification. As used in this article, “lacked
substantial justification” means substantially
frivolous, substantially groundless, or
substantially vexatious.
§ 13-17-102(4).
¶ 21 In other words, subsection (4) does not grant a court the
authority to assess attorney fees that could not be awarded under
subsections (1) and (2). Instead, subsections (1) and (2) provide
general authority to award attorney fees for claims or defenses
lacking substantial justification, while subsection (4) specifies the
process and conduct for which a court may assess fees. In this
12
way, the subsections operate together to set the parameters and
criteria for an attorney fees award. Cf. Upper Black Squirrel Creek
Ground Water Mgmt. Dist. v. Cherokee Metro. Dist., 2015 CO 47,
¶ 22 (reading subsections (2) and (4) together to determine a court’s
authority to award attorney fees under section 13-17-102). As a
result, the limits on the court’s authority set forth in subsections (1)
and (2) — including the criterion that the unjustified claim or
defense was presented in a Colorado court — apply with equal force
to subsection (4). Cf. Colo. Citizens for Ethics in Gov’t v. Comm. for
the Am. Dream,
187 P.3d 1207, 1220 (Colo. App. 2008) (recognizing
that section 13-17-102’s criterion that the action occur in a court of
record in this state, which appears in subsections (1) and (2),
applies to subsection (5)).
¶ 22 Simply put, if the limits of subsections (1) and (2) did not
apply to subsection (4), those limits would lose any practical effect;
a court could always award fees under subsection (4) without
regard to those limits. We must eschew a statutory interpretation
that robs the language of any impact. See People v. Terry,
791 P.2d
374, 376 (Colo. 1990) (“Courts should attempt to give effect to all
13
parts of a statute, and constructions that would render meaningless
a part of the statute should be avoided.”).
¶ 23 Section 13-17-101, C.R.S. 2016, which articulates the
legislative purpose of section 13-17-102, illustrates further that the
limits of subsections (1) and (2) of section 13-17-102 apply to
subsection (4). See Johnson v. People, 2016 CO 59, ¶¶ 17-18 (To
determine the plain meaning of a statute, “[w]e read statutory words
and phrases in context, and we construe them according to the
rules of grammar and common usage. In addition, we must
interpret a statute so as to effectuate the purpose of the legislative
scheme.”) (citation omitted); City & Cty. of Denver v. Bd. of
Assessment Appeals,
30 P.3d 177, 183 (Colo. 2001) (“We consider
legislative declarations when construing a statute.”).
¶ 24 Section 13-17-101 provides: “The general assembly recognizes
that courts of record of this state have become increasingly
burdened with litigation which is straining the judicial system and
interfering with the effective administration of civil justice.”
(Emphasis added.) In response to this concern, “the general
assembly hereby sets forth provisions for the recovery of attorney
fees in courts of record when the bringing or defense of an action,
14
or part thereof . . . , is determined to have been substantially
frivolous, substantially groundless, or substantially vexatious.” Id.
Our supreme court has also explained that “[t]he General Assembly
enacted section 13-17-102 because our courts are burdened with
unnecessary litigation that interferes with the effective
administration of civil justice.” In re Marriage of Aldrich,
945 P.2d
1370, 1378 (Colo. 1997) (emphasis added). In light of this
legislative purpose, interpreting section 13-17-102 to authorize an
attorney fees award based on a claim or defense presented to a
different jurisdiction’s court would be anomalous.
¶ 25 Therefore, the district court’s order rests on an erroneous
interpretation of the law and clashes with Kraft and Kennedy.
¶ 26 Trustees, however, do not rely on the court’s interpretation.
Instead, they advance a different view of section 13-17-102 to
justify the award of attorney fees incurred in the West Virginia
action. We now turn to their contentions.
2. Trustees’ Arguments
a. Arguments Based on Section 13-17-102
¶ 27 Trustees acknowledge that the limits of subsections (1) and (2)
apply to a court’s authority to assess attorney fees under
15
subsection (4) of section 13-17-102. But trustees contend that,
while subsections (1) and (2) limit in what civil action a court may
award attorney fees (one in a Colorado court of record), those
subsections do not limit for what action a court may award fees.
Trustees maintain that, under section 13-17-102, “[t]here are no
limits to ‘an action’ for which the court may award fees,” so long as
the Colorado court enters the fees order in a Colorado case.
Accordingly, trustees conclude that the district court here complied
with the statute because “[i]t awarded fees in this Colorado action.”
¶ 28 By its terms, however, section 13-17-102 refers to Colorado
courts. See also § 13-17-101; Aldrich, 945 P.2d at 1378. Trustees
thus read the limits of subsections (1) and (2) as doing no more
than restricting a Colorado court’s authority to award attorney fees
to a case in that Colorado court — as opposed, presumably, to a
Colorado court’s entering a fees order in another jurisdiction’s case
(e.g., issuing an order in the West Virginia case). But that
restriction is obvious and unnecessary to express, so much so that
the limits set forth in subsections (1) and (2) would be superfluous
under such a narrow view of their import. Again, “[w]e must avoid
constructions that would render any words or phrases
16
superfluous[.]” Johnson, ¶ 18. To have meaning, subsections (1)
and (2) must restrict a Colorado court’s authority to awarding
attorney fees incurred in response to unjustified conduct occurring
“in any civil action of any nature commenced or appealed in any
court of record in this state.” § 13-17-102(2).
¶ 29 Trustees also point to In re Marriage of Ward, 183 P.3d 707
(Colo. App. 2008). In that case, however, the division concluded
that the trial court could award attorney fees under section
13-17-102 for work done in New York that was used in a Colorado
action. See
id. at 708-09. The father employed a New York attorney
to investigate and procure records showing that he had satisfied an
earlier New York order to pay child support. This fact reinforced the
father’s defense to the mother’s request for a support judgment in
the Colorado case, which she had based on the New York order.
See
id. at 709; see also Cherry Creek Sch. Dist. No. 5 v. Voelker,
859
P.2d 805, 808-09 (Colo. 1993) (holding that the trial court had
authority to award costs for out-of-state depositions necessary to
prepare for the Colorado trial) (cited in Ward). Hence, Ward meshes
well with Kraft and our analysis but does not bolster trustees’
claim.
17
¶ 30 Finally, trustees rely heavily on Leslie, decided by a division of
this court. There, a district court in an estate matter cited section
13-17-102 as support for awarding attorney fees incurred in actions
before a Colorado court and a federal court. See Leslie, 886 P.2d at
286-88. But Leslie did not specifically address a court’s authority
to award fees incurred solely in a foreign jurisdiction. Leslie
seemed to assume such authority existed, without discussion,
because that was not the issue presented.
¶ 31 Instead, Leslie focused on whether a court may charge
attorney fees against a petitioner’s share of an estate when those
fees were incurred in defense against the petitioner’s frivolous
litigation. See
id. (recognizing that the Colorado Probate Code does
not provide such authority). Leslie found such authority in section
13-17-102 and drew no distinction between litigation occurring in
the Colorado court and the federal court. (Leslie then examined the
courts’ orders in the state and federal cases and decided that the
actions brought in those courts were frivolous or groundless, even
though those courts had made no such findings expressly.)
Therefore, Leslie offers little guidance on the legal issue before us.
18
¶ 32 To the extent, however, that Leslie permits a Colorado court to
award attorney fees incurred in another jurisdiction’s case even
where work product created for the other case was not used in
Colorado, Leslie clashes with the plain language of section
13-17-102 discussed above.6 Leslie is also troubling for other
reasons:
Leslie contradicts the sound logic that “it is ordinarily
‘the court in which services were rendered that should
determine the amount of attorney fees awardable.’”
Kraft, 122 P.3d at 1026 (quoting Lopez-Flores v. Hamburg
Twp., 460 N.W.2d 268, 270 (Mich. Ct. App. 1990)).
Leslie opens the door to an attorney fees award for
conduct in a foreign action where the foreign court
declined to — or could not — impose such sanctions.
For instance, the record here does not show, and trustees
do not assert, that they sought fees in West Virginia and
complied with Fed. R. Civ. P. 11(c)(2) when doing so.
That rule contains a safe harbor provision requiring a
6 Leslie did not mention whether the attorney fees incurred in the
federal action pertained to work product also used in the state
action.
19
party to give notice that it intends to seek attorney fees
as a sanction for a frivolous filing. Id. Opposing counsel
may then withdraw or correct the challenged filing and
avoid the imposition of attorney fees. Id. Given their
apparent failure to comply with Federal Rule 11, trustees
seek to recover in this Colorado case their attorney fees
incurred in the West Virginia case even though the
federal court could not have awarded those fees in that
federal action. The Colorado legislature surely did not
intend section 13-17-102 to authorize such a result.7
¶ 33 Consequently, to the extent Leslie conflicts with Kraft and our
statutory analysis, we decline to follow Leslie. See City of
7 Bruce is mistaken, however, in claiming that Fed. R. Civ. P. 11
“preempts” a Colorado court’s authority to award attorney fees
under section 13-17-102. Federal Rule 11 applies only to federal
courts. Cf. McCoy v. West, 965 F. Supp. 34, 35 (D. Colo. 1997)
(“[T]o the extent Colo.Rev.Stat. § 13–17–101 et seq. is inconsistent
with the procedural safe-harbor provisions of Rule 11, it is
preempted. ‘[A] federal district court in a diversity case is neither
required, nor indeed permitted, to apply state law to a matter
covered by a Federal Rule of Civil Procedure.’”) (citation omitted).
Still, it would be incongruous for a Colorado court to award
attorney fees for an action in federal court where the federal court
could not do so.
20
Steamboat Springs v. Johnson, 252 P.3d 1142, 1147 (Colo. App.
2010) (“We are not bound to follow a prior division’s ruling.”).
b. Arguments Based on District Court’s Equitable Authority
¶ 34 Trustees paid the attorney fees out of trust assets, on behalf of
the trust. Trustees therefore maintain that the district court had
authority to award attorney fees to trustees in order to restore trust
assets expended in response to Bruce’s frivolous attacks:
If Mr. Bruce is permitted to run without
consequence to foreign courts to bring
frivolous challenges to the final decision of the
Colorado probate court, Colorado courts will
be effectively disabled from efficiently resolving
a trust’s final administration and protecting
what remains of the trust’s assets.
¶ 35 A court presiding over a probate matter certainly possesses
equitable authority “to account for the unique circumstances of a
particular proceeding and to ensure that parties are treated fairly
and the decedent’s will is upheld.” Beren v. Beren, 2015 CO 29,
¶ 18 (citing Leslie,
886 P.2d at 287). Even so, the general rule
remains that a court may not award attorney fees in the absence of
a statute, court rule, or contract expressly permitting those fees.
Allstate Ins. Co. v. Huizar,
52 P.3d 816, 820-21 (Colo. 2002). As
explained above, section 13-17-102, on which the district court
21
here relied, did not authorize the court to award attorney fees
incurred solely in the West Virginia case unless the West Virginia
work product was also used in this case. And, while trustees cite
other statutes ostensibly authorizing a probate court to award
attorney fees, those statutes do not mention attorney fees at all.
See §§ 15-10-302, 15-16-201, C.R.S. 2016. We cannot infer an
exception to the general rule against attorney fees awards from
general provisions “that do not explicitly address attorney fees.”
Huizar, 52 P.3d at 821; see also In re Estate of Klarner,
113 P.3d
150, 157 (Colo. 2005) (holding that section 15-16-201(1) does not
authorize an award of attorney fees to a prevailing party, even those
fees incurred to redirect “wayward Trustees”).8
¶ 36 Finally, trustees’ premise is flawed. In fact, a party may face
consequences for going to a foreign court with frivolous litigation
affecting Colorado trust assets: the estate may seek an attorney fees
8 Indeed, in In re Estate of Leslie,
886 P.2d 284, 287 (Colo. App.
1994), cited in Beren v. Beren,
2015 CO 29, ¶ 18, the division
determined that the probate code did not authorize the probate
court to award the attorney fees in that case. Hence, the division
looked to section 13-17-102.
22
award against that party from the foreign court, according to the
statutes and rules of that jurisdiction.
3. Summary and Remand Directions
¶ 37 Section 13-17-102 does not authorize a Colorado court to
award attorney fees incurred in an action in a foreign court, unless
work product created for use in the foreign court is also used in the
Colorado court.
¶ 38 Neither the district court’s order nor the record clarifies,
however, whether trustees used work product created for the West
Virginia action in these Colorado proceedings.9 Accordingly, we
vacate the portion of the order awarding $54,565 for attorney fees
incurred in the West Virginia action, and we remand for the district
court to determine whether trustees used work product created for
the West Virginia action in these Colorado proceedings. See Kraft,
122 P.3d at 1026. The court may, but need not, hold a further
9 Trustees contend that Bruce failed to raise this work-product
issue adequately in the district court. But, while Bruce did not
object to the amount of attorney fees requested for the West Virginia
case, he did object to such fees on the ground that section
13-17-102 does not authorize an award of those fees. In response,
the district court explicitly addressed the extent to which the
statute permits a fees award for the West Virginia case. Our review
of the court’s order requires us to consider that same question.
23
hearing. If trustees used work product created for the West Virginia
action in this case, the court shall award to trustees their attorney
fees incurred for that work product. If not, the court shall not
award any attorney fees incurred in the West Virginia action.
III. Conclusion
¶ 39 The district court’s order, as it pertains to attorney fees
incurred in the action before the West Virginia federal court, is
vacated. The case is remanded for further proceedings consistent
with this opinion.
JUDGE WEBB and JUDGE HAWTHORNE concur.
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