Mitchell v. Ryder, 03CA0953, 03CA1030.

• Decision Date: 04 November 2004
• Docket Number: No. 03CA0953, 03CA1030.,03CA0953, 03CA1030.
• Citation: 104 P.3d 316
• Parties: Denise MITCHELL, Plaintiff-Appellant and Cross-Appellee, v. Gloria RYDER, Ph.D., Defendant-Appellee and Cross-Appellant, and Concerning Juanita Benetin, Attorney-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

104 P.3d 316

Denise MITCHELL, Plaintiff-Appellant and Cross-Appellee, v. Gloria RYDER, Ph.D., Defendant-Appellee and Cross-Appellant, and Concerning Juanita Benetin, Attorney-Appellant and Cross-Appellee.

No. 03CA0953, 03CA1030.

Colorado Court of Appeals, Division V.

November 4, 2004.

Juanita Benetin, P.C., Juanita Benetin, Boulder, Colorado, for Plaintiff-Appellant and Cross-Appellee.

The Law Offices of Peter R. Bornstein, Peter R. Bornstein, Denver, Colorado, for Defendant-Appellee and Cross-Appellant.

Heather R. Hanneman, Denver, Colorado, for Attorney-Appellant and Cross-Appellee.

HUME¹, J.

Plaintiff, Denise Mitchell, and her attorney, Juanita Benetin, appeal the remand court's order affirming an attorney fee award against them and in favor of defendant, Gloria Ryder. Ryder cross-appeals the trial court's failure to address her request for fees in remand proceedings and seeks fees on appeal under C.A.R. 38(d). We uphold the fee award, conclude the cross-appeal is not ripe for appellate review, and decline to award Ryder fees on appeal.

This case is again before us following the division's decision in Mitchell v. Ryder, 20 P.3d 1229 (Colo.App.2000)(Mitchell I), which the supreme court reversed in Ryder v. Mitchell, 54 P.3d 885 (Colo.2002)(Mitchell II). Additional facts appear in those opinions.

This case has its origins in a child custody dispute following Mitchell's divorce. Mitchell hired Ryder, a therapist, in connection with Mitchell's concerns over the father's treatment of the children.

As relevant here, Mitchell brought negligence and breach of fiduciary duty claims against Ryder. These claims were dismissed on separate summary judgment motions.

Ryder then sought fees and costs under § 13-17-101, et seq., C.R.S.2004. Following an evidentiary hearing, the trial court entered a lengthy written order (initial order) concluding that Mitchell's claims were substantially groundless, frivolous, and vexatious and that Benetin had not performed her "gate-keeping obligation" under C.R.C.P. 11. The court awarded Ryder all costs and attorney fees requested against both Mitchell and Benetin.

Mitchell appealed the summary judgment on the negligence claim and the fee award. Benetin joined in the appeal of the fee award.

In Mitchell I, the division reinstated the negligence claim on the basis that Ryder owed Mitchell a duty of care in formulating and publishing a letter saying that Mitchell was alienating the children from the father. Based on this conclusion, the division also reversed and remanded the attorney fee award, concluding that the negligence claim was not substantially frivolous, groundless, or vexatious under § 13-17-101, "nor did its assertion violate C.R.C.P. 11." Mitchell I, supra, 20 P.3d at 1234.

In Mitchell II, the supreme court reversed, holding that Ryder did not owe a duty of care to Mitchell. Observing that neither party had sought certiorari on the attorney fee issue, the court said, "Accordingly, the court of appeals judgment reversing and remanding the attorney fees order stands." Mitchell II, supra, 54 P.3d at 893.

On remand, Ryder moved to affirm the attorney fee award. In response, Mitchell and Benetin argued only that the decisions in Mitchell I and Mitchell II precluded any fee award. The court, now acting through a third judge, entered a short order awarding the prior amount of costs and fees, interest, and appellate costs, without making any findings.

Mitchell paid the costs, but filed a lengthy motion to reconsider the fee award, in which she raised numerous arguments, including the effect of her certificate of review. Following further briefing, the remand court entered an order affirming its earlier order. The court also made findings under § 13-17-103, C.R.S.2004, and concluded that the certificate of review did not preclude a fee award.

I. Attorney Fee Award to Ryder

Mitchell and Benetin first contend the remand court erred in affirming the award of attorney fees, arguing that Mitchell I reversed the entire fee award and, because neither party sought certiorari on this issue, Mitchell II did not reopen the possibility of a fee award. Ryder responds that Mitchell I reversed the fee award only as to the negligence claim, leaving the fee award as to the breach of fiduciary duty claim standing, and Mitchell II impliedly overruled the division's reversal of the fee award on the negligence claim. We agree with Ryder.

A. Law of the Case

Although both parties rely on the "law of the case" doctrine, they reach opposite conclusions.

The pronouncement of an appellate court on an issue in a case presented to it becomes the law of the case. Rulings logically necessary to the holding of the appellate court also become the law of the case. The law of the case as established by an appellate court must be followed in subsequent proceedings before the trial court.

People v. Roybal, 672 P.2d 1003, 1005 (Colo.1983) (citations omitted). "However, the law of the case doctrine recognizes limited exceptions to one division of this court being bound by the decision of another division in an earlier appeal." Interbank Invs., LLC v. Eagle River Water & Sanitation Dist., 77 P.3d 814, 817 (Colo.App.2003).

In Mitchell I, the division reversed the entire fee award on the basis of the trial court's failure to apportion fees between the two claims. That division specifically found the award erroneous only in connection with the negligence claim: "Accordingly, the trial court erred in awarding costs and attorney fees to [Ryder] on that claim." Mitchell I, supra, 20 P.3d at 1234.

In addition to directing the trial court on remand to make express finding concerning the factors set forth in § 13-17-103, the division said that the court should address Mitchell's "contention that the filing of a certificate of review bears upon the appropriateness of any fee award." Mitchell I, supra, 20 P.3d at 1234. Because the division precluded any fee award as to the negligence claim, we conclude the division intended the trial court to consider the certificate of review in connection with the fee award on the breach of fiduciary duty claim.

Hence, considering only Mitchell I, we would conclude that attorney fees must be allocated between the claims, fees allocable to the negligence claim are not recoverable by Ryder, and fees allocable to the breach of fiduciary claim should be awarded to Ryder, unless the certificate of review precludes such an award. See § 13-17-102(2.1), C.R.S.2004 (recognizing that the filing of a certificate of review under § 13-20-602, C.R.S.2004, creates "a rebuttable presumption that the claim or action is not frivolous or groundless").

However, before applying the law of the case doctrine, we must reconcile two statements in Mitchell II. On the one hand, the supreme court said that "the court of appeals judgment reversing and remanding the attorney fees order stands." Mitchell II, supra, 54 P.3d at 893. On the other hand, the court's remand directed the trial court to "address any attorney fees in light of our opinion." Mitchell II, supra, 54 P.3d at 893. These two statements are problematic because, if the court of appeals decision holding that fees allocable to the negligence claim cannot be awarded "stands," yet Mitchell II addresses only the negligence claim, we must determine how the supreme court intended the trial court was to proceed on remand "in light of [its] opinion."

We conclude that, because Mitchell II includes no holding as to the breach of fiduciary duty claim, further proceedings on this claim were limited to consideration of the certificate of review and an allocation of fees to the defense of the claim. In this regard, the holding in Mitchell I on fees "stands."

Further, we interpret the phrase "in light of our opinion" as the supreme court's recognition that the remand court may revisit awarding fees allocable to the negligence claim. This interpretation is consistent with the explanation in Mitchell I of reversal of the fee award as a necessary consequence of its conclusion upholding the negligence claim. See Giampapa v. Am. Family Mut. Ins. Co., 64 P.3d 230 (Colo.2003)

(rejecting reasoning of a case because it relies on and cites another case that has been effectively overruled). In revisiting a fee award on the negligence claim, the remand court would have to consider the significance of the certificate of review as to this claim as well.

Accordingly, we conclude that the remand court was to address the following questions: (1) did the certificate of review preclude awarding fees allocable to either of the claims; (2) if not, should fees have been awarded on the negligence claim, using the factors set forth in § 13-17-103; and (3) if not, what fees were allocable to the breach of fiduciary duty claim.

B. Certificate of Review

Mitchell and Benetin next contend § 13-17-102(2.1) precludes a fee award. We disagree.

Section 13-20-602(3)(a)(I), C.R.S.2004, requires that the attorney bringing a claim have "consulted a person who has expertise in the area of the alleged negligent conduct." Ryder does not dispute the expertise of the therapist who was consulted in connection with the certificate. Hence, we disagree with that portion of the remand court's order discounting the certificate of review because it rested on the opinion of a therapist rather than on that of a lawyer.

However, because we uphold the fee award under the third criterion of § 13-17-102, C.R.S.2004, that the action was "substantially vexatious," we need not determine whether the record supports this aspect of the remand court's conclusions.

We conclude the certificate of review does not preclude an attorney fee award for vexatiousness on either the breach of fiduciary duty claim or the negligence claim.

C. Breach of Fiduciary Duty

Mitchell and Benetin next contend fees cannot be awarded on the breach of fiduciary duty claim because it was not without substantial justification....