Barry L. Bruce, Attorney-Appellant,
Jay A. Roberts and Ashley Roberts McNamara, as Co-Trustees of the Della I. Roberts Trust, Petitioners-Appellees.
County District Court No. 13PR30246 Honorable Devin R. Odell,
VACATED IN PART AND CASE REMANDED WITH DIRECTIONS
Jackson Kelly PLLC, John S. Zakhem, John L. Skari, Jr.,
Benjamin Ross, Denver, Colorado, for Appellant
Graham & Stubbs LLP, John M. Bowlin, Denver, Colorado,
1 A Colorado court must award attorney fees against a party
who presents the court with a claim or defense lacking
substantial justification. § 13-17-102(2), C.R.S. 2016.
But can a Colorado court award fees under section 13-17-102
for an unjustified claim presented to a foreign court?
2 This question is raised by appellant, Barry L. Bruce, an
attorney assessed with opposing counsels' fees under
section 13-17-102 for legal work performed in both the
underlying Larimer County estate matter and a collateral
action in West Virginia. Relying on the language of section
13-17-102 and Board of County Commissioners v. Kraft
Building Contractors, 122 P.3d 1019 (Colo.App. 2005),
Bruce argues that the district court lacked authority to
award attorney fees incurred solely in the West Virginia
case. Appellees, Jay A. Roberts and Ashley Roberts McNamara,
respond that In re Estate of Leslie, 886 P.2d 284,
288 (Colo.App. 1994), supports the court's award.
3 We conclude that Kraft properly applied the plain
language of section 13-17-102 and that Leslie is
distinguishable. To the extent that Leslie may
conflict with our decision, however, we decline to follow
that case. Following Kraft instead, we vacate the
district court's order as it pertains to attorney fees
incurred in the West Virginia action and remand for further
proceedings. I. Facts and Proceedings
4 In 1996, Della Roberts, assisted by her son James Roberts,
formed the Della I. Roberts Trust in Colorado, where she
lived. She died eight days later.
5 Upon Della's death, James, the designated trustee, was
supposed to divide the trust's assets into two equal
shares. The first share was intended to benefit James and his
wife, Mary Sue Roberts. The second share was intended to
benefit Della's grandchildren, the children of James and
Mary Sue. The trust instrument further provided that James
was to distribute to Della's grandchildren "at least
monthly and in equal amounts, all of the net income from
their trust share."
6 James did not properly administer the trust. Apparently,
however, no one expressed concern over his administration
until after he died in October 2012. Upon his death, Mary Sue
assumed the role of trustee pursuant to the trust's
provisions. As such, she was supposed to distribute equally
all principal remaining from the trust's second share to
Della's grandchildren. But a majority of the
grandchildren promptly removed Mary Sue as trustee (as
permitted by the trust instrument), citing concerns that
trust assets had already been squandered and she might not
properly distribute any remaining assets. These grandchildren
then sought the trust's financial records and a corporate
fiduciary willing to assume the role of trustee.
7 Unable to obtain either the financial records or a willing
corporate fiduciary, two grandchildren - Jay A. Roberts and
Ashley Roberts McNamara - brought this probate action on
behalf of the trust. (We will refer to them as
"trustees" because they were ultimately appointed
trustees.) Their initial petition sought an order appointing
a successor trustee. They then sought the records necessary
to complete a historical accounting for the trust, marshal
and distribute the remaining assets, and finally dissolve the
8 Mary Sue objected to the petition on jurisdictional
grounds. Citing her and James's move from Colorado to
West Virginia in 1999, she argued that West Virginia courts
had exclusive jurisdiction over the trust. In June 2013, the
district court rejected the jurisdictional challenge and
concluded that Larimer County, Colorado, was the appropriate
9 Meanwhile, Mary Sue filed a separate case in West Virginia
state court. She asked that court to assume jurisdiction over
the trust, and she sought (among other things) a temporary
restraining order and an injunction to prevent dissolution of
the trust. Trustees removed the case to the federal district
court in West Virginia. After a hearing, the federal court
dismissed the West Virginia action in November 2013,
concluding that "jurisdiction over the trust is properly
in Colorado." Mary Sue appealed this decision to the
Fourth Circuit but then voluntarily dismissed her appeal. The
record does not reveal whether trustees sought an attorney
fees award from the federal courts in the West Virginia
action. On appeal, Bruce asserts that trustees did not apply
for fees in the federal courts; trustees have not disputed
10 Back in Colorado, the district court accepted a final
accounting of the trust filed by trustees, ordered all assets
remaining in the trust be distributed to the grandchildren in
equal shares, and found that the trust could recover
administrative costs and attorney fees incurred in litigating
both the Colorado and West Virginia cases, pursuant to
11 Bruce represented Mary Sue in both the Colorado and West
Virginia matters. The district court awarded attorney fees
for the Colorado matter ($7325) in favor of the trust and
against both Bruce and Mary Sue's local counsel, jointly
and severally. The court assessed fees against Bruce for the
West Virginia action ($54, 565).
12 Bruce appeals the district court's order only as it
pertains to attorney fees awarded for the West Virginia
action. He contends that section 13-17-102 did not authorize
the court to award attorney fees incurred solely in the West
Virginia case. Based on the plain language of the
statute, Bruce is right, except to the extent that trustees
used in this case any work product created for the West
Virginia federal action. Because the record does not reveal
whether they did so, further proceedings are necessary to
address this exception. For these reasons, we vacate the
order in part and remand for resolution of this question.
Relevant Law and Standard of Review
13 A court considering whether to award attorney fees must
begin with the American Rule, "which precludes an award
of attorney fees absent a specific contractual, statutory, or
procedural rule providing otherwise." City of Aurora
ex rel. Util. Enter. v. Colo. State Eng'r,
105 P.3d 595, 618 (Colo. 2005); see L & R Expl.
Venture v. CCG, LLC, 2015 COA 49, ¶ 20
(stating that Colorado follows the American Rule requiring
each party in a lawsuit to bear its own legal expenses).
Article 17 of title 13 specifically provides otherwise and
sets forth a limited basis for awarding attorney fees. As
relevant here, section 13-17-102 authorizes an attorney fees
award if a court finds an attorney or party brought or
defended a civil action that "lacked substantial
justification, " either in whole or in part. §
13-17-102(2); see § 13-17-102(4) (defining the
phrase "lacked substantial justification").
14 But does section 13-17-102 also authorize a Colorado court
to award attorney fees for frivolous litigation occurring not
in that court but in a separate (though related) matter
occurring in a foreign court? This question presents a
statutory interpretation issue that we review de novo.
Sperry v. Field, 205 P.3d 365, 367 (Colo. 2009);
see also Madison Capital Co. v. Star Acquisition
VIII, 214 P.3d 557, 560 (Colo.App. 2009) ("We
review de novo the legal analysis employed by the trial court
in reaching its decision to award attorney fees.").
15 The primary goal of statutory interpretation is to
ascertain and give effect to the General Assembly's
intent. St. Vrain Valley Sch. Dist. RE-1J v. A.R.L.,
2014 CO 33, ¶ 10. To determine this intent, we look
first to the statute's plain language. Vigil v.
Franklin, 103 P.3d 322, 327 (Colo. 2004). "[W]e
must accept the General Assembly's choice of language and
not add or imply words that simply are not there."
People v. Benavidez, 222 P.3d 391, 394 (Colo.App.
2009). We must also read the language in the context of the
statute as a whole, giving consistent, harmonious, and
sensible effect to all its parts. Jefferson Cty. Bd. of
Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.
2010); see also Copeland v. MBNA Am. Bank, N.A., 907
P.2d 87, 90 (Colo. 1995) ...