Patterson v. James

• Decision Date: 13 December 2018
• Docket Number: Court of Appeals No. 17CA1154,Court of Appeals No. 16CA2024
• Citation: 2018 COA 173
• Parties: 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.
• Court: Colorado Court of Appeals

2018 COA 173

Louella Maxine Patterson, Plaintiff-Appellant and Cross-Appellee,andRobert A. Lees, Attorney-Appellant and Cross-Appellee, v. M. Tracy James, Defendant-Appellee and Cross-Appellant.

Court of Appeals No. 16CA2024

Court of Appeals No. 17CA1154

COLORADO COURT OF APPEALS

December 13, 2018

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

Attorney Fees — Tort Actions Dismissed Pursuant to C.R.C.P. 12(b) — Joint and Several Fee Awards

A division of the court of appeals considers whether a trial court that is granting attorney fees pursuant to section 13-17-201, C.R.S. 2018, may order that the plaintiff's attorney be jointly and severally liable for such fees. The division concludes that the trial court has such authority under section 13-17-102(3), C.R.S. 2018. This statutory authority creates a general rule that fee awards under Article 17 of Title 13 may be joint and several, and is not limited by its terms to awards related to claims or defenses pursued without substantial justification under section 13-17-102(2). Further, since the decision to impose the joint and several fee award in this case was not manifestly unfair, arbitrary, or unreasonable, the trial court did not abuse its discretion.

The division also makes clear that a trial court may consider unpublished opinions of the court of appeals to the extent the trial court finds such opinions persuasive.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.Adams County District Court No. 16CV30739

Honorable F. Michael Goodbee, Judge

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE TOW

Hawthorne and Bernard, JJ., concur

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

¶ 1 Upon granting a C.R.C.P. 12(b) motion to dismiss a tort action in its entirety, a trial court is required to award attorney fees to the defendant. § 13-17-201, C.R.S. 2018. When doing so, does the court have the authority to order that judgment be joint and several between the plaintiff and plaintiff's counsel? For the first time in a published decision, we answer that question yes. In doing so, we also make clear that a trial court may consider unpublished opinions of this court to the extent the trial court finds such opinions persuasive.

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 assertedclaims of elder abuse, outrageous conduct, nondisclosure or concealment, false representation, and civil conspiracy.

¶ 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.

¶ 4 James moved to dismiss these claims pursuant to Rule 12(b)(5), and the trial court granted the motion,¹ finding that the litigation shield and strict privity rule barred Patterson's claims against James. James then moved for attorney fees under sections 13-17-201 and 13-17-102(2), C.R.S. 2018. After a hearing, the trial court awarded attorney fees and costs jointly and severally against Patterson and her attorney Lees pursuant to section 13-17-201.

¶ 5 Citing section 13-17-102(2), James asserted that Patterson's and Lees's defense of the fee request lacked substantial justification. As a result, James requested additional attorney fees incurred in pursuing the underlying fee request (sometimes referred to as fees on fees). The trial court denied James's request.

¶ 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.

II. Analysis

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. C.R.C.P. 15(a); see also Fladung v. City of Boulder, 165 Colo. 244, 247, 438 P.2d 688, 690 (1968) (holding that a motion to dismiss does not constitute a responsive pleading). Therefore, while the motion to dismiss was pending and as long as no answer had been filed, Patterson was entitled to file an amended complaint without leave from the court. She did not do so.

¶ 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 strikeand her response to James's motion to dismiss.² However, "[a] motion shall not be included in a response or reply to the original motion." C.R.C.P. 121, § 1-15(1)(d).

¶ 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 civil context), rev'd on other grounds, 192 Colo. 75, 555 P.2d 1155 (1976).

¶ 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 C.R.C.P. 56 motion for summary judgment when it considered matters outside the pleading, thus precluding attorney fees under section 13-17-201.

¶ 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 courtmisapplied the pleading standard in ruling on James's motion to dismiss. We reject each of these contentions in turn.

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 C.R.C.P. 56." C.R.C.P. 12(b). "However, if matters outside of thecomplaint are submitted to the trial court, but not considered in review of the [Rule] 12(b)(5) motion to dismiss, the trial court need not convert the motion to dismiss into a motion for summary judgment." Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377,...