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In re Estate of Fritzler

Court of Appeals of Colorado, Division I

January 12, 2017

In re the Estate of Edward J. Fritzler, deceased.
v.
Cheryl Mitchell, Personal Representative of the Estate of Edward J. Fritzler, Appellee and Cross-Appellant. Steven Fritzler, Appellant and Cross-Appellee, In re the Estate of Edward J. Fritzler, deceased. Steven Fritzler, Petitioner-Appellee,
v.
Cheryl Mitchell, Personal Representative of the Estate of Edward J. Fritzler, Respondent-Appellant.

         Weld County District Court No. 14PR30370 Honorable James F. Hartmann, Judge

         JUDGMENT AND ORDERS AFFIRMED

          Winters, Hellerich & Hughes, LLC, Thomas E. Hellerich, Jacey R. Cerda, David J. Skarka, Greeley, Colorado, for Appellant and Cross Appellee/Petitioner-Appellee

          Otis, Bedingfield & Peters, LLC, Jennifer L. Peters, Lee J. Morehead, Nathanial Wallshein, Greeley, Colorado, for Appellee and Cross Appellant/Respondent-Appellant

          OPINION

          ASHBY JUDGE.

         ¶ 1 This is an appeal from two separate proceedings. In the first, Steven Fritzler appeals from the trial court's judgment in favor of Cheryl Mitchell, the personal representative (PR) of the Estate of Edward J. Fritzler. In the second, the PR and the Estate appeal from the court's order denying attorney fees and partially denying costs. We are asked, as a matter of first impression, to decide whether the trial court properly concluded that, if fees could not be awarded under section 13-17-102, C.R.S. 2016, it also could not award attorney fees to the PR under its equitable authority. We affirm.

         I. Background

         ¶ 2 Edward J. Fritzler (Ed) and his wife, Mary Eileen Fritzler, executed numerous wills during the last ten years of their lives. The last will was drafted just a few years before they each passed away. In all of the wills, the Fritzlers sought to distribute their farm in a generally equitable manner among their five children: Dean Fritzler, Kenneth Fritzler, Steven Fritzler, Glen Fritzler, and Cheryl Mitchell. The last will significantly increased Glen's inheritance and decreased Steven's.

         ¶ 3 As a result, Steven contested the will. He asserted that the will was invalid due to Glen's undue influence and because Ed lacked testamentary capacity. After a lengthy trial, a jury concluded that the will was valid. Steven appeals.

         ¶ 4 Following the verdict, the Estate and Cheryl, as PR, sought attorney fees and costs under section 13-17-102 and C.R.C.P. 54(d). The court denied an award of attorney fees because it found that the case was "close" and that, even though he lost, Steven's claims did not lack substantial justification as required under section 13-17-102. The court further concluded that it did not have equitable authority to grant fees without concurrent statutory authority. It then partially granted and partially denied costs. Only the costs that were denied have been appealed.

         II. Admission of Evidence

         ¶ 5 Steven contends that the trial court abused its discretion by excluding Ed's hospital medical records under CRE 803(6). We agree that the exclusion was an abuse of discretion, but we perceive no basis for reversal because the error was harmless.

         ¶ 6 We review the trial court's decision to exclude evidence for an abuse of discretion. See Genova v. Longs Peak Emergency Physicians, P.C., 72 P.3d 454, 458 (Colo.App. 2003). A court abuses its discretion where its decision is manifestly arbitrary, unreasonable, or unfair, or misapplies the law. Id.

         ¶ 7 Because the claim of error is preserved, we review any error using a harmlessness standard. See C.A.R. 35(c). Under this standard, an error is harmless where it does not affect the substantial rights of the parties. Id.; see Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 24 ("[A]n error affects a substantial right only if 'it can be said with fair assurance that the error substantially influenced the outcome of the case or impaired the basic fairness of the trial itself.'" (quoting Bly v. Story, 241 P.3d 529, 535 (Colo. 2010))) (emphasis omitted); Rojhani v. Meagher, 22 P.3d 554, 557 (Colo.App. 2000) ("Harmless error occurs with respect to the admission or exclusion of evidence when no substantial right of a party is affected. A substantial right is affected if the error substantially influences the outcome of the case.") (citation omitted).

         ¶ 8 Steven argued that the medical records were admissible because the hospital records custodian laid a sufficient foundation for their admissibility under the business records exception to the hearsay rule. Hearsay is "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c). Hearsay evidence is generally inadmissible. CRE 802. However, CRE 803(6) provides an exception to this general rule by allowing admission of business records if the following requirements are met:

(1) the document must have been made "at or near" the time of the matters recorded in it; (2) the document must have been prepared by, or from information transmitted by, a person "with knowledge" of the matters recorded; (3) the person or persons who prepared the document must have done so as part of a "regularly conducted business activity"; (4) it must have been the "regular practice" of that business activity to make such documents; and (5) the document must have been retained and kept "in the course of" that, or some other, "regularly conducted business activity."

Schmutz v. Bolles, 800 P.2d 1307, 1312 (Colo. 1990) (citation omitted). The trial court excluded the records because it determined that the records custodian was not able to testify that the records were prepared by, or from information transmitted by, a person with knowledge.

         ¶ 9 In Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo.App. 2003), a division of this court held that a report promptly made from information transmitted by a person with knowledge is admissible if the report is kept in the course of a regularly conducted business activity and it is the regular practice of the business to make such a report, as shown by the testimony of the custodian or other qualified witness, unless "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Id. at 617 (quoting CRE 803(6)); see Teac Corp. of Am. v. Bauer, 678 P.2d 3 (Colo.App. 1984). In other words, even if the identity of a person whose firsthand knowledge is the basis of a particular entry in a business record cannot be established, the record custodian's knowledge is adequate and such records are admissible. And a custodian's lack of personal knowledge concerning the accuracy of information contained in business records would affect only the weight of evidence, not its admissibility. People v. Holder, 632 P.2d 607, 609 (Colo.App. 1981).

         ¶ 10 Therefore, even though the records custodian could not identify every source of information contained in the hospital records and she did not create the records herself, Teac permits the report's admission under CRE 803(6). Based on the custodian's testimony, each record entry was transmitted by a person with knowledge; each report was kept in the course of a regularly conducted business activity of the hospital; it was the regular practice of the hospital to make such reports; and nothing indicated a lack of trustworthiness of the reports. Further, the trial court excluded the hospital records even ...


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