Mark L. Thompson and Rosalin Rogers, Plaintiffs-Appellants,
United Securities Alliance, Inc., Defendant, and Concerning Catlin Insurance Company (UK) Ltd., Garnishee, Appellee.
and County of Denver District Court No. 09CV7321 Honorable
Michael A. Martinez, Judge
Sherman & Howard L.L.C., Christopher R. Mosley, Jennifer
M. Morris, Denver, Colorado, for Plaintiff-Appellant
& Rees LLP, John R. Mann, Denver, Colorado, for Appellee
1 Plaintiffs Mark L. Thompson and Rosalin Rogers obtained a
judgment against United Securities Alliance, Inc., and then
instituted garnishment proceedings against United's
insurer, defendant Catlin Insurance Company (UK) Ltd. The
district court deducted from the policy limit the amount of
attorney fees incurred by Catlin in defending the underlying
arbitrations against United, and entered judgment for
plaintiffs for the remainder of the policy.
2 On appeal, plaintiffs contend the district court erred in
its determination of reasonable attorney fees and in
declining to award pre- and post-judgment interest. Whether
prejudgment interest can be awarded in a garnishment
proceeding is an unresolved issue in Colorado. We affirm.
3 Catlin issued a liability insurance policy to United,
covering claims that might arise from United's business
as a securities broker. The policy allows Catlin to deduct
from the policy's liability limit the "reasonable
and necessary fees and costs incurred . . . in the defense of
4 Plaintiffs received a damages award in an arbitration
proceeding against United, which the district court
confirmed. To collect on this judgment, plaintiffs then
served a writ of garnishment action on Catlin as United's
5 In an October 2010 order, the district court ordered Catlin
to pay the damages award and found that Catlin could deduct
"zero" defense fees and costs from the policy's
limits. According to the district court, the heavily redacted
invoices submitted by Catlin failed to establish that the
fees were "reasonable and necessary."
6 On appeal, a division of this court affirmed the liability
judgment, but remanded for the district court to determine
the amount of expenses that Catlin had reasonably incurred in
the arbitration, to deduct that amount from the $1 million
policy limit, and to order Catlin to pay the plaintiffs, from
the remaining policy limit, the amounts due under the
judgment. Thompson v. Catlin Ins. Co. (UK) Ltd.,
slip op. at 14 (Colo.App. No. 10CA2554, Feb. 12, 2012) (not
published pursuant to C.A.R. 35(f)) (Thompson I).
7 On remand, the district court found that Catlin had
reasonably incurred fees and costs but, faced with the same
heavily redacted invoices (which it found largely
"indiscernible"), the court calculated Catlin's
expenses based on the amount of fees incurred by
plaintiffs' counsel in the underlying arbitration. Using
this method, the court found that Catlin could deduct $320,
000 in attorney fees from the policy limits.
8 Catlin again appealed. A division of this court reversed a
second time, concluding that the district court's order
did not include sufficient findings of facts to support its
determination. Thompson v. Catlin Ins. Co. (UK)
Ltd., slip op. at 8 (Colo.App. No. 13CA2037, Oct. 16,
2014) (not published pursuant to C.A.R. 35(f)) (Thompson
9 Before recalculating the reasonable amount of fees and
costs on remand, the district court accepted additional
briefing from the parties. This time, along with its
briefing, Catlin provided the unredacted copies of the
invoices for the two arbitrations, stating that it had
finally located them from defense counsel "[a]fter an
exhaustive search." Plaintiffs moved to strike the
unredacted invoices as outside the scope of the mandate, and
the court denied the motion.
10 In a thorough and carefully reasoned opinion, the district
court relied on record evidence, including the unredacted
invoices, to calculate Catlin's reasonable attorney fees
and costs, making specific deductions for redundant entries,
excessive hours, and other discretionary factors. The court
found $452, 107.15 of Catlin's requested $545, 136.27
reasonable and necessary and deducted this amount from the
policy limit. After subtracting amounts Catlin had previously
paid plaintiffs, the court ordered Catlin to pay $96, 287.68.
It denied plaintiffs' requests for pre- and post-judgment
11 On appeal, plaintiffs contend that the district court
acted beyond the scope of the mandate in Thompson
III by considering the unredacted invoices, and that it
erred in denying interest to which they are statutorily
12 Plaintiffs contend that the district court acted beyond
the scope of the Thompson III mandate because, by
considering the unredacted invoices, the district court
expressly disregarded the mandate's instruction to review
"the existing record." In light of the unusual
circumstances of this case, we disagree.
13 Trial courts have no discretion to disregard binding
appellate rulings. Consequently, we review de novo whether a
trial court has complied with a prior appellate ruling.
City Council of City of Cherry Hills Vill. v. S. Suburban
Park & Recreation Dist., 219 P.3d 421, 423
14 When determining the meaning of a remand order, we
consider the disposition and context of the entire opinion.
See In re Marriage of Balanson, 107 P.3d 1037, 1044
(Colo.App. 2004) (interpreting remand order "in the
context of the entire opinion"); In re Marriage of
Ashlock, 663 P.2d 1060, 1062 (Colo.App. 1983) ("The
meaning of a remand is to be determined from the reviewing
court's disposition of the issues before it.").
15 We acknowledge that, in most cases, an instruction to the
district court to "review the existing record, "
and to make a determination "from this record, "
would amount to an order prohibiting the district court from
considering additional evidence. But given the unusual
procedural posture of this case, we construe the language as
permissive rather than restrictive - in our view, the remand
order meant that the district ...