to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: The Noble Law Firm, LLC Antony
Noble Lakewood, Colorado
Attorneys for Respondent: Moffat County Attorney's Office
Rebecca Tyree Craig, Colorado
In this appeal, we consider the narrow question of whether
sovereign immunity bars an award of attorney's fees
against a public entity. The trial court found that the
Moffat County Department of Social Services ("the
Department") committed a discovery violation in the
course of a dependency and neglect proceeding, and it awarded
attorney's fees to Petitioner C.K. pursuant to Colorado
Rule of Civil Procedure 37. The court of appeals vacated the
fee award, holding that it was barred by sovereign immunity.
People in the Interest of L.K., 2016 COA 112,
¶¶ 1-2, ___ P.3d ___. We now reverse.
Our holding is limited to the narrow question related to
sovereign immunity, but we note that there are two additional
relevant, yet distinct, issues that remain to decide whether
an award of attorney's fees is proper in this case: (1)
Whether, under the facts of this case, C.R.C.P. 37 applies to
proceedings governed by the Children's Code, and, if it
does, (2) whether C.R.C.P. 37 contains the express language
required under our court's precedent to authorize
attorney's fees against a public entity. While we discuss
these issues briefly to give context to our holding, their
ultimate resolution should be addressed on remand.
Facts and Proceedings Below
The Department removed C.K.'s child, L.K., from his home
and filed a petition in dependency and neglect against C.K.
During the course of the dependency and neglect case, without
court intervention, C.K. and the Department engaged in
discovery. As part of that discovery, C.K. served an
interrogatory and a request for production of documents on
the Department. The Department provided documents in
response. After reviewing them, C.K. alleged that the
response was deficient. After conferring with opposing
counsel, C.K. filed a motion to compel, which included a
request for sanctions under C.R.C.P. 37 in the form of
attorney's fees. C.K. requested $500 for time spent
conferring with opposing counsel, drafting the motion to
compel, and drafting new discovery requests in an attempt to
obtain the missing discovery.
In response to C.K's motion to compel, the Department
argued that the statute governing attorney's fees,
section 13-17-102, C.R.S. (2017), did not apply to
proceedings governed by the Children's Code. The
Department also argued that C.R.C.P. 37 only covers sanctions
for deficient disclosures under C.R.C.P. 26(a), and that
because C.R.C.P. 26(a) does not apply to proceedings governed
by the Children's Code, C.K.'s request for
attorney's fees under C.R.C.P. 37 was invalid. C.K. filed
a reply and sought an additional $500 in fees for time spent
on that reply.
The trial court held a hearing on the matter. Because all
requested discovery had been provided to C.K. by that time,
the court only addressed the issue of attorney's fees.
The court raised the issue of whether sovereign immunity
barred an award of attorney's fees on its own. In
response, the Department argued that sovereign immunity did
bar such an award, but its primary argument remained that the
relevant rules of civil procedure did not apply in this case.
After the hearing, the court issued a one-page order granting
a partial award of attorney's fees in the amount of $400
"[p]ursuant to C.R.C.P. 37." Its order did not
address the issue of sovereign immunity.
The dependency and neglect case continued, and the trial
court ultimately terminated C.K.'s parental rights. C.K.
appealed the termination of his parental rights, and the
Department cross-appealed the award of attorney's fees.
The court of appeals affirmed the termination of C.K.'s
parental rights, but it reversed the award of attorney's
fees, holding that sovereign immunity barred such an award
against a public entity. L.K., ¶¶ 1-2. In
so holding, the court of appeals drew on federal precedent
requiring an explicit waiver of sovereign immunity prior to
suit against the sovereign. See id. at ¶¶
66-70. Because no such waiver permitting attorney's fees
against a public entity in a dependency and neglect
proceeding exists in Colorado, the court of appeals held that
sovereign immunity bars an award of attorney's fees.
Id. at ¶¶ 69-70. Because the court of
appeals reached this conclusion, it did not decide whether
C.R.C.P. 37 applied in this case. See id. at ¶
We granted certiorari to consider the narrow question of
whether sovereign immunity barred the trial court's award
of attorney's fees.
Standard of Review
Sovereign immunity presents a jurisdictional question.
Springer v. City & Cty. of Denver, 13 P.3d 794,
798 (Colo. 2000). If sovereign immunity applies, it divests
the court of jurisdiction. See Gallagher v. Bd. of
Trs., 54 P.3d 386, 394 (Colo. 2002), abrogated on
other grounds by Martinez v. Estate of Bleck, 2016 CO
58, 379 P.3d 315. When the facts of a jurisdictional question