Wesley v. Newland

• Decision Date: 24 November 2021
• Docket Number: Court of Appeals No. 20CA0649
• Citation: 505 P.3d 318,2021 COA 142
• Parties: Nicole WESLEY, Plaintiff, and Cornell Johnson, Attorney-Appellee, v. Sarah NEWLAND, Defendant-Appellant.
• Court: Colorado Court of Appeals

505 P.3d 318

2021 COA 142

Nicole WESLEY, Plaintiff,

and

Cornell Johnson, Attorney-Appellee,

v.Sarah NEWLAND, Defendant-Appellant.

Court of Appeals No. 20CA0649

Colorado Court of Appeals, Division II.

Announced November 24, 2021

The Law Office of Cornell Johnson P.C., Cornell Johnson, Denver, Colorado, for Attorney-Appellee

James Stadler, Jonathan Saadeh, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE BERGER

¶ 1 The winning party in this civil case sought an award of attorney fees under the frivolous and groundless litigation statute against both the opposing party and her lawyer who had previously withdrawn from representing her (withdrawn lawyer). The district court awarded fees against the opposing party but did not address whether fees should be awarded against the party's withdrawn lawyer. In a separate order, the court also imposed costs only against the party.

¶ 2 Resolution of this appeal requires us to decide two legal questions. Does the district court have the authority under the Colorado Rules of Civil Procedure to join the former attorney as a party for postjudgment proceedings under section 13-17-102, C.R.S. 2021? What must the district court do to comply with section 13-17-102(3) ’s mandate that a court "shall allocate" the payment of a fee award "among the offending attorneys and parties, jointly or severally, as it deems most just"?

¶ 3 We hold that the district court has authority under the Colorado Rules of Civil Procedure to join the former lawyer for these purposes. We also hold that the court must consider the allocation of fees between the party and the party's present or former counsel and must make sufficient findings to enable meaningful appellate review. Applying these holdings, we reverse the district court's order denying joinder of former counsel, affirm the costs order, and remand for further proceedings.

I. Relevant Facts and Procedural History

¶ 4 This appeal arises out of a tort action that concluded when the district court granted defendant Sarah Newland's motion to dismiss for failure to prosecute.

¶ 5 Cornell Johnson represented plaintiff, Nicole Wesley, for most of that lawsuit. About a month before trial, however, Johnson filed an unopposed motion to withdraw on the grounds that Wesley had terminated his representation. After holding a hearing, the district court granted the motion, and Wesley proceeded pro se through dismissal.

¶ 6 Relevant here, Newland made two postjudgment motions: a motion for attorney fees under section 13-17-102(4) and a motion to join Wesley's former counsel Johnson as a party for postjudgment proceedings under C.R.C.P. 19, 20, and 21. Newland also filed a bill of costs that mentioned only Wesley, though the later attorney fees motion also requested that costs be imposed against Johnson.

¶ 7 After ordering and receiving a response from Johnson (who argued there was no precedent for joining a withdrawn attorney), the district court denied the joinder motion. The entire order provided as follows:

The Court has reviewed the Motion and response, as well as the applicable legal authority. The Court finds that CRCP Rule 19, Rule 20 and/or Rule 21 do not contemplate such a request by Defendant. Accordingly, the Motion to Join Cornell Johnson (Plaintiff Nicole Wesley's dismissed counsel) in post-judgment proceedings is DENIED.

¶ 8 Following its denial of the joinder motion, the court, without holding a hearing, granted the attorney fees motion in part. That order primarily considered the reasonableness of Newland's fee request and imposed fees against Wesley only. Possibly because the court refused to join Johnson, the order did not indicate that the court considered allocation of fees against him. In a separate order, the court also imposed costs against Wesley and not Johnson.

¶ 9 Newland appealed. Wesley has not filed a brief in this appeal, but Johnson moved to intervene in the appeal, which this court allowed over Newland's objection, and has filed an answer brief.

II. Analysis

A. Joinder Motion

¶ 10 Newland first contends that the district court erred when it denied her post-trial motion to join Johnson. We agree.

1. Standard of Review and Preservation

¶ 11 "Whether to join a party is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion." City of Aurora ex rel. Util. Enter. v. Colo. State Eng'r , 105 P.3d 595, 623 (Colo. 2005), as modified on denial of reh'g (Feb. 14, 2005). A court abuses its discretion if its decision is "manifestly arbitrary, unreasonable, or unfair, or if [the court] misapplies the law." AA Wholesale Storage, LLC v. Swinyard , 2021 COA 46, ¶ 32, 488 P.3d 1213.

¶ 12 The parties agree that this issue was preserved.

2. Analysis

¶ 13 The Colorado Rules of Civil Procedure provide that "[p]arties may be dropped or added by order of the court on motion of any party ... at any stage of the action and on such terms as are just." City of Aurora , 105 P.3d at 623 (quoting C.R.C.P. 21 ) (emphasis in original). The rules "authorize joinder in situations where one party seeks to join a person who may be liable for the same debt or conduct that is already before the court." Id. (emphasis added). Specifically, C.R.C.P. 20(a) provides that

[a]ll persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded.

¶ 14 These joinder rules "should be ‘liberally construed’ " and "indicate clearly a general policy to disregard narrow technicalities and to bring about the final determination of justiciable controversies without undue delay." Stockdale v. Ellsworth , 2017 CO 109, ¶ 31, 407 P.3d 571 (quoting City of Aurora , 105 P.3d at 623 ).

¶ 15 The Colorado Supreme Court has twice affirmed joinder of a party for the limited purpose of postjudgment proceedings in which attorney fees were sought. In one case, a water court joined the City of Aurora as a party after trial on the grounds that the city had an agency relationship with one of the parties to the action. City of Aurora , 105 P.3d at 621. The supreme court affirmed joinder of the city "solely for the purpose of determining liability for attorney fees." Id. at 623. And in Stockdale , the court affirmed joinder of a corporation's alter ego owner for the purposes of seeking attorney fees. Stockdale , ¶¶ 8, 30-31.

¶ 16 Applying both the plain language of the relevant rules and the supreme court cases construing those rules, we conclude that former counsel may be joined for the purpose of a postjudgment motion seeking attorney fees under section 13-17-102. Former counsel against whom attorney fees are sought "may be liable for the same debt or conduct that is already before the court." City of Aurora , 105 P.3d at 623. That is, a court may conclude that the attorney brought a civil action that lacked substantial justification and is liable jointly or severally with the client for the opposing party's attorney fees. See § 13-17-102(3), (4).

¶ 17 Johnson argues that former counsel cannot be joined because attorneys are "officers of the court, not parties." We reject this argument. Johnson cites no authority providing that attorneys cannot be joined for the purposes of postjudgment proceedings seeking attorney fees. Moreover, the Colorado Supreme Court has rejected the broad proposition that an attorney can never be joined as a party. See Vinton v. Virzi , 2012 CO 10, ¶¶ 11-13, 269 P.3d 1242.

¶ 18 Newland conceded at oral argument that she did not argue below that the district court continued to have jurisdiction over Johnson after he was granted leave to withdraw. If continuing jurisdiction exists, there might be no need to join Johnson as a formal party. Because Newland raises this argument for the first time on appeal (and presents it, at best, as an underdeveloped argument), we do not decide it.¹ See McGihon v. Cave , 2016 COA 78, ¶ 10 n.1, 410 P.3d 647 ; People v. Draper , 2021 COA 120, ¶ 99 n.11, 501 P.3d 262.

¶ 19 Ultimately, the district court's conclusion that the Colorado Rules of Civil Procedure did not authorize joinder of Johnson misapplied the law and therefore was an abuse of discretion.

B. Attorney Fees Motion

¶ 20 Newland next contends that the district court erred by granting her attorney fees motion only against Wesley and not against Johnson.

1. Standard of Review and Preservation

¶ 21 A district court has "broad discretion when determining whether to award attorney fees" and "absent an abuse of discretion, its decision will not be disturbed on appeal." In re Marriage of Tognoni , 313 P.3d 655, 660-61 (Colo. App. 2011). Again, an abuse of discretion occurs when the court misapplies the law. Swinyard , ¶ 32.

¶ 22 The parties dispute whether Newland preserved this issue. Specifically, Johnson argues that the attorney fees motion was untimely under C.R.C.P. 121, section 1-22(b). We reject this argument because even assuming the motion was untimely, if a district court accepts a filing beyond the timeline set forth in Rule 121 "without expressly granting an extension, it has impliedly exercised its discretion under the rule." US Fax L. Ctr., Inc. v. Henry Schein, Inc. , 205 P.3d 512, 516 (Colo. App. 2009).

¶ 23 Johnson goes further and argues that "[b]y failing to object to [Johnson's] motion to withdraw and failing to raise the issue of attorney fees before the trial court granted [withdrawal]," Newland waived this claim of error or invited the error.

¶ 24 We also reject this argument. Johnson has cited no authority providing that an attorney immunizes himself from an attorney fees award under the statute by withdrawing without opposition. We conclude that given an...