Crow v. Penrose–st. Francis Healthcare System

Citation262 P.3d 991
Decision Date18 August 2011
Docket NumberNo. 09CA2667.,09CA2667.
PartiesJimmie R. CROW, M.D., Plaintiff–Appellant,v.PENROSE–ST. FRANCIS HEALTHCARE SYSTEM, d/b/a Penrose–St. Francis Health Services, Defendant–Appellee.
CourtCourt of Appeals of Colorado


Jones & Keller, P.C., Thomas P. McMahon, Denver, Colorado, for PlaintiffAppellant.Kutak Rock, LLP, Mark L. Sabey, Denver, Colorado, for DefendantAppellee.Opinion by Judge CRISWELL.*

Plaintiff, Jimmie R. Crow, M.D. (doctor), appeals from the district court's order awarding attorney fees to defendant, Penrose–St. Francis Health Services (Penrose). He asserts that (1) section 13–17–201, 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 circumstances. We reject both of these assertions, affirm, and remand the case for a determination of a reasonable attorney fees award to Penrose for defending the appeal.

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.S.2010. Crow v. Penrose–St. Francis Healthcare Sys., 169 P.3d 158, 163 (Colo.2007). Doctor could not refile his action until Penrose's board made a final decision in the administrative proceedings. Id. at 168.

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, 2010 WL 3169839 (Colo.App., Aug. 12, 2009) (not published pursuant to C.A.R. 35(f)). Presumably, the C.R.C.P. 106(a)(4) petition and the amended complaint in this case are still pending before the district court.

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'g Co., 36 P.3d 145, 148 (Colo.App.2001).

1. Scope of 13–17–201

Doctor contends that section 13–17–201 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.3d 658, 660 (Colo.2005); Cork v. Sentry Ins., 194 P.3d 422, 425 (Colo.App.2008). When interpreting a statute, [o]ur primary duty ... is to ascertain and effectuate the intent of the General Assembly.” Shelter Mut. Ins. Co. v. Mid–Century Ins. Co., 246 P.3d 651, 661 (Colo.2011). We begin with the statute's express language, “construing words and phrases according to grammar and common usage.” Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.2010). Ultimately, “our interpretation should give consistent, harmonious, and sensible effect to all parts of a statute.” Id.

Relying upon Krystkowiak v. W.O. Brisben Cos., 90 P.3d 859, 869 (Colo.2004), doctor first argues that the pertinent statute is applicable only to a “narrow category of baseless tort claims,” and that the dismissal here was not based on the viability of his claims, but upon his failure simply to comply with a condition precedent to the institution of his suit. We conclude, however, that the pertinent statute is not so narrowly applicable.

It is certainly true that Krystkowiak stated that the statute has narrow application. 90 P.3d at 869. Yet, this language of the opinion was mere dictum; Krystkowiak held only that the allegations of the complaint in the action did not state a claim, that it should have been dismissed under C.R. C.P. 12(b)(5), and that an award of fees was appropriate. Id. at 871–72.

Moreover, section 13–17–201 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, e.g., Curtis v. Hyland Hills Park & Recreation Dist., 179 P.3d 81, 85 (Colo.App.2007) (lack of subject matter jurisdiction); Ceja v. Lemire, 143 P.3d 1093, 1098–99 (Colo.App.2006) (subject matter jurisdiction), aff'd, 154 P.3d 1064 (Colo.2007); Lyon v. Amoco Prod. Co., 923 P.2d 350, 355–58 (Colo.App.1996) (subject matter and personal jurisdiction); Smith v. Town of Snowmass Village, 919 P.2d 868, 873 (Colo.App.1996) (subject matter jurisdiction).

Further, doctor's interpretation also contravenes the well-settled canon of judicial construction that the “interpretation should give consistent, harmonious, and sensible effect to all parts of a statute.” Jefferson Cnty. Bd. of Equalization, 241 P.3d at 935. The legislature, in Title 13, Article 17, has set forth provisions for the award of attorney fees. Section 13–17–102(2), C.R.S.2010, which was adopted before the enactment of section 13–17–201, requires an award of attorney fees against a party who brings, or asserts a defense against an action, that “lacks substantial justification.” Section 13–17–102(2) clearly would support an award of fees where a “baseless” action is dismissed under C.R.C.P. 12(b)(5). If the subsequently enacted section 13–17–201 was limited to “baseless” actions, then it would substantially duplicate section 13–17–102(2)'s provisions. See Brodeur v. Indus. Claim Appeals Office, 159 P.3d 810, 813 (Colo.App.2007) (courts should “avoid interpretations that render statutory provisions redundant or superfluous”).

Finally, the Colorado Supreme Court's most recent opinion on this subject, Crandall v. City & County of Denver, 238 P.3d 659 (Colo.2010), made clear that the unambiguous language in section 13–17–201 makes an award of attorney fees mandatory. Id. at 661. The statute was enacted as part of the General Assembly's tort reform efforts of the mid–1980s, and its clear language does not allow for a judicially created exception when an action is dismissed under Rule 12(b)(1). Id. at 663–65.

Nor are we persuaded by doctor's argument that the applicable statute of limitations forced 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.3d 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 C.R.C.P. 12. See Villalpando v. Denver Health & Hosp. Auth., 181 P.3d 357, 365 (Colo.App.2007) (“While the award of fees under section 13–17–201 may lead to harsh consequences in particular cases, that is an issue for the General Assembly, not this court, to resolve.”).

2. Constitutionality of Section 13–17–201

Contrary to doctor's assertion, section 13–17–201 is not unconstitutional because it allows only one side in the litigation to recover attorney fees. The opportunity to recover fees is not a fundamental right; thus, a statute affording only one side in litigation an opportunity to recover warrants only rational basis review. Torres v. Portillos, 638 P.2d 274, 277–78 (Colo.1981). The rational basis for awarding attorney fees under section 13–17–201 only to a defendant, as noted above, is to deter both baseless and unnecessary tort actions. Thus, section 13–17–201's application to actions such as this, which create unnecessary litigation, has an underlying rational basis.

3. 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...

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