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C.K. v. People ex rel. L.K.

Supreme Court of Colorado, En Banc

December 18, 2017

C.K., Petitioner
v.
The People of the State of Colorado, In the Interest of Minor Child: L.K. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA1953

          Attorneys for Petitioner: The Noble Law Firm, LLC Antony Noble Lakewood, Colorado

          Attorneys for Respondent: Moffat County Attorney's Office Rebecca Tyree Craig, Colorado

          OPINION

          BOATRIGHT JUSTICE.

         ¶1 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.

         ¶2 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.

         I. Facts and Proceedings Below

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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 ¶ 59.

         ¶7 We granted certiorari to consider the narrow question of whether sovereign immunity barred the trial court's award of attorney's fees.[1]

         II. Standard of Review

         ¶8 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 are ...


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