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In re Estate of Shimizu

Court of Appeals of Colorado, Second Division

November 3, 2016

In re the Estate of Calvin Shimizu, a/k/a Calvin Kiyoshi Shimizu, a/k/a Calvin K. Shimizu, deceased.
v.
Bonnie Rae Trujillo-Dickson, James Gillen Dickson, and Ann Kathleen May, Appellees. Jamie Szoke, as Personal Representative of the Estate of Calvin Shimizu, and individually, a/k/a Jamie Lee Tomie-Szoke and Jamie Lee Shimizu, Appellant,

         City and County of Denver Probate Court No. 11PR928 Honorable Elizabeth D. Leith, Judge

         ORDER AFFIRMED

          Miller & Steiert, P.C., Gary Clexton, Christopher J. Forrest, Mollie B. Hawes, Littleton, Colorado; Clauss & Associates, P.C., Eliot R. Clauss, New York, New York, for Appellant

          Hunsaker Emmi, P.C., Donald T. Emmi, William J. Hunsaker, Golden, Colorado, for Appellees

          DAILEY JUDGE

         ¶ 1 Petitioner, Jamie Szoke, a/k/a Jamie Lee Shimizu, a/k/a Jamie Lee Tomie-Szoke (Szoke), individually and as personal representative of the estate of decedent, Calvin Shimizu, a/k/a Calvin Kiyoshi Shimizu, a/k/a Calvin K. Shimizu, appeals the probate court's order awarding respondents, Bonnie Rae Trujillo-Dickson, James Gillen Dickson, and Ann Kathleen May (Recipients), attorney fees under section 13-17-102, C.R.S. 2016. We affirm.

         I. Background

         ¶ 2 Decedent's half-sister, Szoke, challenged the validity of a deed that decedent had executed near the end of his life. In that deed, decedent purported to convey his house to three of his close friends, i.e., the Recipients.

         ¶ 3 Decedent died intestate and survived by Szoke, with whom he had not spoken since their father's funeral more than two decades earlier.

         ¶ 4 As pertinent here, Szoke claimed that the deed was invalid because decedent (1) lacked testamentary capacity to transfer property and (2) was subjected to the undue influence of friends who were in dire financial straits. At trial, Szoke testified that she believed decedent would have wanted his house to go to relatives, and she presented a cousin who related that, two months before his death, decedent offered to give her (the cousin) the house. Szoke also presented evidence (1) from a doctor, who opined, from a review of decedent's medical records, that decedent's physical and mental condition, together with the heavy doses of narcotic pain medication he was taking, would have substantially decreased his ability to comprehend legal documents; (2) of the Recipients' financial problems; and (3) from a handwriting expert, who opined based on comparisons between the documents signed the day the deed was executed, that the signature on the deed was not that of decedent but, rather, that of one of the Recipients.

         ¶ 5 At the conclusion of Szoke's case-in-chief, the Recipients moved for dismissal under C.R.C.P. 41(b)(1), but the court denied that motion.

         ¶ 6 The Recipients testified to their close friendship with decedent and that decedent understood what he was doing and wanted to give them his house. They presented the attorney who prepared the deed, who testified to the process he followed to ensure decedent was mentally competent and to protect against undue influence. They also presented testimony from several hospice staff members (including a doctor) and two of decedent's other friends, all of whom confirmed that decedent had acted consistently with his express desires, and with sufficient mental acuity, when he executed the deed before a notary public.

         ¶ 7 Ultimately, the probate court rejected Szoke's claims, finding the Recipients' case far more persuasive because it was based on evidence from persons who had direct contact with decedent near or at the time the deed was executed, and not all of whom were interested in the outcome of the case. Based on its appraisal of the case, the court also determined that the Recipients were entitled to an award of attorney fees under section 13-17-102 because Szoke's claims "lacked substantial justification" and were "groundless, in that she presented valid theories of undue influence and lack of capacity, but offered little or nothing to support those claims."

         ¶ 8 The probate court's order rejecting Szoke's claims was affirmed on appeal. In re Estate of Shimizu, (Colo.App. No. 14CA2024, Feb. 25, 2016) (not published pursuant to C.A.R. 35(f)) (Shimizu I). But because the amount of the attorney fees award had not been determined when Szoke filed her notice of appeal, the division was not presented with a final, appealable attorney fees order it could review.

         ¶ 9 The probate court has since determined that the Recipients are entitled to an award of $68, 182.01 in attorney fees. In its order setting the amount of attorney fees, the court, in addressing the basis for awarding fees, cited sections 13-17-101, et al., but did not reference groundlessness as the reason for its award. Instead, it referenced a prior finding that Szoke "prosecuted this case despite all facts leading to a conclusion that Decedent had legal and testamentary capacity and disposed of his assets in the manner in which he intended."

         ¶ 10 Szoke now appeals the attorney fees award, challenging not the amount awarded, but only the basis for the award.

         II. The Probate Court Did Not Err in Awarding Attorney Fees

         ¶ 11 Szoke contends that the probate court erroneously awarded attorney fees to the Recipients under section 13-17-102. More specifically, she asserts that the probate court erred in (1) relying on certain testimony presented by the Recipients because it was undisclosed expert evidence and (2) determining that her claims lacked substantial justification. We disagree with both contentions.

         A. Court's Reliance on Undisclosed Expert Testimony

         ¶ 12 In this part of her appeal, Szoke asserts that the probate court erred in relying on certain evidence that was improperly admitted because it was undisclosed expert testimony. In Shimizu I, the division determined, contrary to Szoke's assertion, that the evidence was admissible.

         ¶ 13 "Conclusions of an appellate court, and rulings logically necessary to those conclusions, become the law of the case and generally must be followed in later proceedings." Interbank Invs., LLC v. Eagle River Water & Sanitation Dist., 77 P.3d 814, 817 (Colo.App. 2003). Szoke has given us no reason why we should depart from the ruling in Shimizu I, and we perceive none.

         ¶ 14 Because, under Shimizu I, the challenged evidence was held to be admissible, the district court could consider ...


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