Dubray v. Intertribal Bison Co-Op.

• Decision Date: 24 July 2008
• Docket Number: No. 07CA1995.,07CA1995.
• Parties: Fred DUBRAY, Plaintiff-Appellant, v. INTERTRIBAL BISON COOPERATIVE and Ervin Carlson, Defendants-Appellees.
• Court: Colorado Court of Appeals

192 P.3d 604

Fred DUBRAY, Plaintiff-Appellant, v. INTERTRIBAL BISON COOPERATIVE and Ervin Carlson, Defendants-Appellees.

No. 07CA1995.

Colorado Court of Appeals, Div. IV.

July 24, 2008.

Fredericks Peebles & Morgan, LLP, Thomas Fredericks, Jeremy Patterson, Denver, Colorado, for Plaintiff-Appellant.

Littler Mendelson, Joshua Kirkpatrick, Katherine Dix, Denver, Colorado, for Defendants-Appellees.

Opinion by Judge METZGER.^*

Plaintiff, Fred Dubray, appeals the judgment awarding attorney fees and costs to defendants, Intertribal Bison Cooperative (IBC) and Ervin Carlson. We affirm the portions of the judgment awarding costs and determining defendants were entitled to an award of attorney fees under section 13-17-201, C.R.S.2007. However, we reverse concerning the amount of fees awarded and remand for entry of a modified award and for an award of reasonable attorney fees incurred in defending this appeal.

This action arose out of plaintiff's termination as executive director of IBC. Plaintiff asserted the following claims for relief against defendants: (1) wrongful termination based on breach of contract, (2) wrongful termination based on violation of public policy, (3) wrongful termination based on improper removal of a corporate officer, (4) defamation, (5) intentional infliction of emotional distress, (6) misrepresentation, (7) negligent interference with business relations, and (8) invasion of privacy based on public disclosure of private facts. Plaintiff also asserted claims for "negligent malpractice" against two accounting firms.

Defendants filed a motion under C.R.C.P. 12(b)(2) seeking dismissal based upon lack of personal jurisdiction or, in the alternative, forum non conveniens. The trial court ultimately granted the motion and dismissed the entire action with prejudice based upon a lack of personal jurisdiction over five defendants plaintiff deemed to be "necessary and indispensable" parties. The trial court later denied plaintiff's motions seeking to amend the judgment and his complaint.

Defendants then moved for an award of attorney fees and costs under section 13-17-201. After receiving briefing from the parties, the trial court concluded that the statute applied and that the fees and costs defendants requested were reasonable. The trial court ordered plaintiff to pay defendants $26,983 in attorney fees and $483.63 in costs.

I.

Plaintiff contends that the trial court erred in awarding fees pursuant to section 13-17-201. Although plaintiff concedes that the action was dismissed under C.R.C.P. 12(b), he argues that the statute does not apply because the action included both tort and non-tort claims. Alternatively, plaintiff argues that the statute is inapplicable because he brought the action "primarily as a contract claim" and the tort claims were "minor" or "secondary." We perceive no error in the trial court's decision to award fees under the statute.

Section 13-17-201 provides, in pertinent part, as follows:

In all actions brought as a result of a death or an 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 [C.R.C.P. 12(b)], such defendant shall have judgment for his reasonable attorney fees in defending the action.

"The intent of the general assembly in enacting [section] 13-17-201 was to discourage the institution or maintenance of unnecessary tort claims." Kennedy v. King Soopers Inc., 148 P.3d 385, 388 (Colo.App. 2006); see also Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010 (Colo.2008); Smith v. Town of Snowmass Village, 919 P.2d 868, 872 (Colo.App.1996).

An award of attorney fees is appropriate under section 13-17-201 when the trial court dismisses an entire tort action pursuant to C.R.C.P. 12(b). See Robinson, 179 P.3d at 1009; see also First Interstate Bank v. Berenbaum, 872 P.2d 1297, 1302 (Colo.App.1993) (section applies only when an action rather than single claim has been dismissed under C.R.C.P. 12(b)).

The statute does not apply if a defendant obtains dismissal of some, but not all, of a plaintiff's tort claims. Berg v. Shapiro, 36 P.3d 109, 113 (Colo.App.2001). Furthermore, the statute does not apply if an action contains both tort and non-tort claims and the defendant obtains C.R.C.P. 12(b) dismissal of only the tort claims. See Sotelo v. Hutchens Trucking Co., 166 P.3d 285, 287 (Colo.App. 2007).

In determining whether the statute applies, the trial court should focus on the manner in which claims are pleaded. See Robinson, 179 P.3d at 1010; see also Kennedy, 148 P.3d at 388 (in applying the statute, courts should rely on plaintiff's characterization of the claims in the complaint and not what should or might have been pled); Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538, 541 (Colo.App.2005).

Here, contrary to plaintiff's assertion that this was primarily a contract action, six of his eight claims against defendants, and eight of his ten total claims asserted, were pleaded as tort claims. Plaintiff obviously chose to include these claims to obtain relief beyond what was available solely under a breach of contract theory.

Under these circumstances, we perceive no error in the trial court's determination that this action "was brought as a result of a death or an injury to person or property occasioned by the tort of any other person" within the meaning of section 13-17-201. See Wark v. Bd. of County Comm'rs, 47 P.3d 711, 717 (Colo.App.2002) (affirming trial court's C.R.C.P. 12(b) dismissal of the plaintiffs' contract and tort claims and awarding the defendant appellate attorney fees under section 13-17-201).

Contrary to plaintiff's contention, we are not persuaded that the trial court's decision is at odds with Sotelo, 166 P.3d 285. In Sotelo, a defendant asserted third-party claims for both tort and breach of contract. Although the trial court dismissed the tort claims under C.R.C.P. 12(b), it declined to dismiss the breach of contract claim under that rule, and the claim was later dismissed voluntarily. On appeal, the division in Sotelo concluded that "[b]ecause the trial court did not dismiss the entire action ... under C.R.C.P. 12(b), it properly declined to award attorney fees under [section] 13-17-201." Sotelo, 166 P.3d at 287.

We acknowledge that Sotelo also contains language implying that section 13-17-201 may not apply to actions involving both tort and non-tort claims. However, it appears the primary basis for the decision was the lack of a complete dismissal based on C.R.C.P. 12(b). And, in contrast to Sotelo, here, the trial court did dismiss the entire action under that rule.

In light of our conclusion that the trial court did not err in awarding attorney fees under section 13-17-201, we further conclude that the award of costs was appropriate under section 13-16-113(2), C.R.S.2007 (requiring award of costs under same circumstances described in section 13-17-201).

II.

Plaintiff next contends that the amount of attorney fees awarded was unreasonable. We disagree but, nevertheless, conclude that the amount of fees awarded must be modified.

Initially, we reject plaintiff's contention that the trial court erred in failing to apportion the attorney fees requested based upon tort versus non-tort claims. Even if we assume that defendants were entitled to recover fees and costs associated with dismissal of only the tort claims, apportionment would be unwarranted because the entire action was dismissed for the same reason (lack of personal jurisdiction) and defendants would have incurred the same, or nearly the same, fees had the case involved only the tort claims. See Padilla v. Ghuman, 183 P.3d 653, 664 (Colo.App.2007) (trial court properly declined to apportion attorney fees incurred in defending frivolous and non-frivolous claims where trial court found that defense of all the claims was inextricably intertwined).

Nor are we persuaded that defendants were entitled to recover only the attorney fees incurred in preparing the motion to dismiss. Section 13-17-201 does not so limit an award and instead expressly authorizes "attorney fees in defending the action."

This leaves only plaintiff's factual challenges regarding the amount of attorney fees awarded.

The determination of what constitutes a reasonable award of attorney fees is a question of fact for the trial court and will not be disturbed on review unless it is patently erroneous and unsupported by the evidence. See Brody v. Hellman, 167 P.3d 192, 198 (Colo.App.2007).

The initial estimate of a reasonable attorney fee is reached by calculating the "lodestar" amount, which represents the number of hours reasonably expended multiplied by a reasonable hourly rate. See Balkind v. Telluride Mountain Title Co., 8 P.3d 581, 587-88 (Colo.App.2000). That amount may then be adjusted based upon several factors, including the amount in controversy, the length of time required to represent the client effectively, the complexity of ...