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Rose L. Watson Revocable Trust v. BP America Production Co.

Court of Appeals of Colorado

January 30, 2014

Rose L. Watson Revocable Trust, Plaintiff,
v.
BP America Production Company, Defendant-Appellee. and William D. Bontrager, Attorney-Appellant,

La Plata County District Court No. 10CV55 Honorable David L. Dickinson, Judge

William D. Bontrager, Tucson, Arizona, for Attorney-Appellant

Dugan & Associates, P.C., Thomas P. Dugan, Durango, Colorado, for Defendant-Appellee

OPINION

J. JONES, JUDGE

¶ 1 Attorney William D. Bontrager appeals the district court's order assessing monetary sanctions against him for filing and litigating frivolous and groundless claims. We affirm and remand for a determination of appellee BP America Production Company's (BP) reasonable attorney fees incurred on appeal.

I. Background

¶ 2 Mr. Bontrager brought claims against BP on behalf of the Rose L. Watson Revocable Trust (Trust). The Trust alleged that BP had failed to explore and develop certain natural gas formations pursuant to its lease of the Trust's property.[1]

¶ 3 About sixteen months after the Trust filed suit, BP moved for summary judgment. As of that date, the Trust had not conducted any discovery and had not set the case for trial. The Trust did not respond to BP's motion: Mr. Bontrager said that the Trust "is choosing not to respond to BP's Motion itself, nor [sic] submit affidavits in direct opposition to the Motion." (Italics in original.) Instead, Mr. Bontrager sought leave to conduct extensive discovery. He did not, however, submit an affidavit pursuant to C.R.C.P. 56(f) requesting additional time to respond to BP's motion after completing discovery.[2]

¶ 4 The district court granted BP's motion. In its written order, the court expressed doubt whether Mr. Bontrager had conducted an adequate investigation before filing suit (citing C.R.C.P. 11(a)) and found that the Trust's complaint was frivolous and groundless, entitling BP to an award of attorney fees and costs under sections 13-17-101 to -106, C.R.S. 2013.

¶ 5 The Trust filed a motion under C.R.C.P. 59 (and a belated C.R.C.P. 56(f) affidavit by Mr. Bontrager). The court denied the motion.

¶ 6 The Trust appealed. A division of this court affirmed the summary judgment. Rose L. Watson Revocable Trust v. BP Am. Prod. Co., (Colo.App. No. 12CA0414, Dec. 6, 2012) (not published pursuant to C.A.R. 35(f)) (cert. denied Oct. 7, 2013). The division determined that the appeal was frivolous both as filed and as argued and remanded the case to the district court for a determination of BP's reasonable attorney fees incurred on appeal. The division did not address the Trust's contention that the district court had erred in awarding attorney fees because the district court had not yet determined the amount of fees to which BP was entitled.

¶ 7 While the appeal of the merits of the district court's summary judgment was pending, the parties litigated BP's claim for attorney fees. Mr. Bontrager continued to argue that the Trust's claims were not frivolous and groundless; he did not contest the reasonableness of the amount sought by BP.

ΒΆ 8 Following a hearing, the district court issued a thorough written order explaining in further detail why BP was entitled to an award of fees and costs pursuant to both C.R.C.P. 11 and section 13-17-102. The court awarded $162, 697 in fees to BP, and ordered Mr. Bontrager to pay seventy-five ...


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