In re the Estate of Edward J. Fritzler, deceased.
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,
Cheryl Mitchell, Personal Representative of the Estate of Edward J. Fritzler, Respondent-Appellant.
County District Court No. 14PR30370 Honorable James F.
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
Bedingfield & Peters, LLC, Jennifer L. Peters, Lee J.
Morehead, Nathanial Wallshein, Greeley, Colorado, for
Appellee and Cross Appellant/Respondent-Appellant
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.
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
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
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.
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
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 ...