Lees v. James

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          December 13, 2018

                               

No. 16CA2024 & 17CA1154 Lees v. James — Attorney Fees —
Tort Actions Dismissed Pursuant to C.R.C.P. 12(b) — Joint and
Several Fee Awards

     A division of the court of appeals considers whether a trial

court that is granting attorney fees pursuant to section 13-17-201,

C.R.S. 2018, may order that the plaintiff’s attorney be jointly and

severally liable for such fees. The division concludes that the trial

court has such authority under section 13-17-102(3), C.R.S.

2018. This statutory authority creates a general rule that fee

awards under Article 17 of Title 13 may be joint and several, and is

not limited by its terms to awards related to claims or defenses

pursued without substantial justification under section 13-17-

102(2). Further, since the decision to impose the joint and several
fee award in this case was not manifestly unfair, arbitrary, or

unreasonable, the trial court did not abuse its discretion.

     The division also makes clear that a trial court may consider

unpublished opinions of the court of appeals to the extent the trial

court finds such opinions persuasive. Accordingly, the division

affirms the trial court’s judgment.
 COLORADO COURT OF APPEALS                                    

Court of Appeals Nos. 16CA2024 & 17CA1154
Adams County District Court No. 16CV30739
Honorable F. Michael Goodbee, Judge


Louella Maxine Patterson,

Plaintiff-Appellant and Cross-Appellee,

and

Robert A. Lees,

Attorney-Appellant and Cross-Appellee,

v.

M. Tracy James,

Defendant-Appellee and Cross-Appellant.


                         JUDGMENT AFFIRMED
                  AND CASE REMANDED WITH DIRECTIONS

                                Division IV
                          Opinion by JUDGE TOW
                     Hawthorne and Bernard, JJ., concur

                        Announced December 13, 2018


Gill & Ledbetter, LLP, H. J. Ledbetter, Anne Whalen Gill, Castle Rock,
Colorado, for Plaintiff-Appellant and Cross-Appellee

Robert A. Lees & Associates, Robert A. Lees, Greenwood Village, Colorado, for
Attorney-Appellant and Cross-Appellee

Lewis Brisbois Bisgaard & Smith LLP, Nancy L. Cohen, Nicole Marie Black,
Denver, Colorado, for Defendant-Appellee and Cross-Appellant
¶1    Upon granting a C.R.C.P. 12(b) motion to dismiss a tort action

 in its entirety, a trial court is required to award attorney fees to the

 defendant. § 13-17-201, C.R.S. 2018. When doing so, does the

 court have the authority to order that judgment be joint and several

 between the plaintiff and plaintiff’s counsel? For the first time in a

 published decision, we answer that question yes. In doing so, we

 also make clear that a trial court may consider unpublished

 opinions of this court to the extent the trial court finds such

 opinions persuasive.

                            I.   Background

¶2    After her husband passed away, plaintiff, Louella Maxine

 Patterson, felt that her husband’s adult children had engaged in

 inappropriate conduct in pursuing certain actions related to her

 husband’s estate. With the assistance of her attorney, Robert A.

 Lees, Patterson filed a tort action against the children and an

 attorney, M. Tracy James, who represented one of the children,

 Elizabeth Danford, in seeking appointment as personal

 representative of the estate. In this action, Patterson asserted




                                     1
 claims of elder abuse, outrageous conduct, nondisclosure or

 concealment, false representation, and civil conspiracy.

¶3    The complaint levied numerous allegations against James:

 that she drafted all or part of the legal documents and provided

 legal advice to Danford and her brother; that neither the will, the

 application for informal probate, nor the initial legal proceedings

 filed by James accounted for Patterson’s elective share of

 homestead rights as the decedent’s spouse or any other spousal

 rights; that James failed to notify Patterson that probate

 proceedings had been initiated; that James, Danford, and Danford’s

 brother conspired and agreed to informal probate in an attempt to

 “slip it through the probate legal process” unnoticed; that although

 Patterson attempted to contact James and Danford with questions

 regarding legal documents she received, she never received

 follow-up contact; and that throughout these probate proceedings,

 James continued to unreasonably bill the estate.




                                   2
¶4    James moved to dismiss these claims pursuant to Rule

 12(b)(5), and the trial court granted the motion,1 finding that the

 litigation shield and strict privity rule barred Patterson’s claims

 against James. James then moved for attorney fees under sections

 13-17-201 and 13-17-102(2), C.R.S. 2018. After a hearing, the trial

 court awarded attorney fees and costs jointly and severally against

 Patterson and her attorney Lees pursuant to section 13-17-201.

¶5    Citing section 13-17-102(2), James asserted that Patterson’s

 and Lees’s defense of the fee request lacked substantial

 justification. As a result, James requested additional attorney fees

 incurred in pursuing the underlying fee request (sometimes referred

 to as fees on fees). The trial court denied James’s request.

¶6    Patterson appeals the trial court’s order dismissing her claims

 against James, and the order requiring her to pay James’s attorney

 fees and costs. Lees appeals the trial court’s order that he be

 jointly and severally liable for the fees and costs. James

 cross-appeals the denial of her request for fees on fees.



 1 In her response to the motion to dismiss, Patterson withdrew her
 claims of elder abuse and false representation.


                                    3
                            II.   Analysis

                 A.   Leave to Amend the Complaint

¶7    Patterson and Lees both contend that instead of dismissing

 Patterson’s complaint, the trial court should have permitted her to

 amend it. However, this argument is not properly before us,

 because Patterson never took any step to amend the complaint.

¶8    As a threshold issue, Patterson would not have needed leave of

 the court to file an amended complaint, because no responsive

 pleading had yet been filed. C.R.C.P. 15(a); see also Fladung v. City

 of Boulder, 

, 

 (1968) (holding

 that a motion to dismiss does not constitute a responsive pleading).

 Therefore, while the motion to dismiss was pending and as long as

 no answer had been filed, Patterson was entitled to file an amended

 complaint without leave from the court. She did not do so.

¶9    Even if Patterson was required to seek leave to amend her

 complaint, she failed to preserve this issue. Patterson and Lees

 contend that this issue was preserved when Patterson requested to

 amend her complaint in her response to James’s motion to strike




                                   4
  and her response to James’s motion to dismiss.2 However, “[a]

  motion shall not be included in a response or reply to the original

  motion.” C.R.C.P. 121, § 1-15(1)(d).

¶ 10   Here, Patterson mentioned in both responses that she should

  be permitted to amend her complaint if the court determined that

  the complaint was not clear. However, Patterson never explicitly

  requested leave to amend her complaint in a separate motion.

  Simply suggesting in other motions that Patterson would amend her

  complaint if the court believed the complaint was unclear is not a

  motion for leave to amend.

¶ 11   Furthermore, “it is incumbent on the moving party to see to it

  that the court rules on the matter [s]he urges,” and if the party fails

  to do so, she waives or abandons that argument on appeal.

  Feldstein v. People, 

, 

  (1966), abrogated on other grounds by Deeds v. People, 

 (Colo. 1987); see also Silverman v. Univ. of Colo., 

 Patterson and Lees also assert that this issue was preserved at
  other locations in the record; however, we see no such statements
  in the record as cited.


                                     5
  269, 280, 

 (1975) (applying a similar analysis in a

  civil context), rev’d on other grounds, 

, 

  (1976).

¶ 12   If Patterson believed that these aspirational statements were

  properly viewed as motions for leave to amend her complaint, she

  was obligated to urge the trial court to rule on the matter. Because

  Patterson failed to do so, she waived this argument on appeal. We

  therefore decline to address the contention further.

                B.    C.R.C.P. 12(b)(5) Motion to Dismiss

¶ 13   Lees and Patterson raise separate issues on appeal regarding

  the trial court’s order granting James’s Rule 12(b)(5) motion to

  dismiss. Lees contends that the trial court converted the motion to

  dismiss to a C.R.C.P. 56 motion for summary judgment when it

  considered matters outside the pleading, thus precluding attorney

  fees under section 13-17-201.

¶ 14   Patterson contends that the trial court improperly dismissed

  her claims against James by misapplying the litigation shield and

  strict privity rule. Patterson also contends that the trial court




                                     6
  misapplied the pleading standard in ruling on James’s motion to

  dismiss. We reject each of these contentions in turn.

                        1.    Standard of Review

¶ 15   Lees states that his issue was preserved at the hearing on

  attorney fees. Patterson states that her issue was preserved in a

  hearing memorandum regarding the new Rule 12(b)(5) standard of

  review and her response to the motion to dismiss. We agree that

  both issues were preserved.

¶ 16   We review de novo a trial court’s ruling on a motion to dismiss.

  Yadon v. Lowry, 

 (Colo. App. 2005). We apply the

  same standards as the trial court, accepting all of the factual

  allegations in the complaint as true and viewing those allegations in

  the light most favorable to the plaintiff. Walker v. Van Laningham,

  

 (Colo. App. 2006).

                2.   Conversion to a C.R.C.P. 56 Motion

¶ 17   On a motion to dismiss, if “matters outside the pleading are

  presented to and not excluded by the court, the motion shall be

  treated as one for summary judgment and disposed of as provided

  in C.R.C.P. 56.” C.R.C.P. 12(b). “However, if matters outside of the



                                    7
  complaint are submitted to the trial court, but not considered in

  review of the [Rule] 12(b)(5) motion to dismiss, the trial court need

  not convert the motion to dismiss into a motion for summary

  judgment.” Pub. Serv. Co. of Colo. v. Van Wyk, 

  (Colo. 2001).

¶ 18   Here, Lees contends that “matters outside the pleading” were

  presented to the trial court when James and Patterson attached

  exhibits to their motion to dismiss and response to the motion to

  dismiss, respectively. However, there is no indication that the trial

  court considered these exhibits in ruling on James’s motion to

  dismiss. To the contrary, the trial court explicitly acknowledged in

  its order that “the court may only consider matters stated within

  the complaint itself, and may not consider information outside of

  the confines of that pleading.” The trial court then itemized the

  specific allegations in the complaint related to James’s conduct.

  Accordingly, because there is no indication that the trial court

  considered the extraneous material the parties had submitted, we

  cannot conclude that the trial court converted the motion to

  dismiss into a Rule 56 motion for summary judgment. The trial



                                     8
  court, therefore, was not precluded from awarding attorney fees

  under section 13-17-201.

                          3.    Litigation Shield

¶ 19   An attorney’s statements, even if defamatory, when made in

  the course of, or in preparation for, judicial proceedings in a filed

  case cannot be the basis of a tort claim if the statements are related

  to the litigation. Begley v. Ireson, 

 (citing

  Buckhannon v. US W. Commc’ns, Inc., 

 (Colo.

  App. 1996)). This litigation privilege exists to encourage and protect

  free access to the courts for litigants and their attorneys. 

¶ 20   The privilege not only shields attorneys from defamation

  claims arising from statements made in the course of litigation, but

  also bars other nondefamation claims that stem from the same

  conduct. Buckhannon, 

. When the statements are

  integral to the judicial process, the immunity provided is absolute.

  Merrick v. Burns, Wall, Smith & Mueller, P.C., 

  (Colo. App. 2001). “It is necessary to consider the nature of the

  duties performed and whether such duties are an essential and

  integral part of the judicial process.” 

 The litigation privilege



                                     9
  therefore applies “regardless of the tort theory” invoked, if the basis

  of the claim is a statement made in the course of litigation.

  Buckhannon, 

.

¶ 21   Here, Patterson’s claims against James arise from James’s

  representation of the personal representative in the underlying

  probate litigation. Patterson alleged that James drafted and filed

  legal documents, provided legal advice on how to commence

  informal probate proceedings, and communicated (or failed to

  communicate) as counsel in the probate proceeding. Because all of

  these statements were essential to the judicial process, namely the

  representation of the personal representative in the probate

  proceedings and drafting the necessary pleadings, the litigation

  privilege applies, and James is thus entitled to absolute immunity

  as a matter of law.

¶ 22   Though not a statement protected by the litigation shield, the

  alleged failure to inform Patterson that probate proceedings had

  commenced is not actionable. “[A]n attorney’s liability to a non-

  client is limited to the narrow set of circumstances in which the

  attorney has committed fraud or a malicious or tortious act,



                                    10
  including negligent misrepresentation.” Baker v. Wood, Ris &

  Hames, Prof'l Corp., 

. Dissatisfied beneficiaries of a

  testator’s estate do not have standing to bring claims against the

  attorney who drafted the testator’s estate planning documents. Id.

  at ¶ 18.

             4.    Pleading Standard for a Motion to Dismiss

¶ 23   To survive summary dismissal for failure to state a claim

  under Rule 12(b)(5), a party must plead sufficient facts that, if

  taken as true, suggest plausible grounds to support a claim for

  relief. Warne v. Hall, 

 (adopting a heightened

  standard of pleading in Colorado that requires a complaint to allege

  plausible grounds for relief, not merely speculative grounds).

¶ 24   In Warne, the supreme court adopted this new standard over

  the old standard requiring dismissal only if “the plaintiff can prove

  no set of facts in support of a claim that would entitle the plaintiff

  to relief.”3 Id. at ¶ 11. However, if a plaintiff has failed to state a

  claim under the old standard, then the claim necessarily does not



  3 Warne v. Hall, 

, was announced on June 27, 2016,
  four days after James filed her motion to dismiss.


                                      11
  survive the new test, because the plaintiff has failed to establish

  any facts, much less plausible ones. See Semler v. Hellerstein, 

, rev’d on other grounds sub nom. Bewley v. Semler,

  

.

¶ 25   Because we conclude that the trial court did not misapply the

  litigation shield doctrine, Patterson’s claim would fail under either

  Warne’s plausible grounds standard or the old “no set of facts”

  pleading standard. Thus, we do not need to decide whether the

  trial court misapplied the pleading standard.

                            C.   Attorney Fees

¶ 26   Lees and Patterson also raise separate issues on appeal

  regarding the trial court’s order granting attorney fees and costs

  jointly and severally against them. Lees raises three issues

  pertaining to this order: (1) the trial court erred in awarding

  attorney fees jointly and severally under section 13-17-201; (2) the

  trial court impermissibly violated the Colorado Court of Appeals’s

  citation policy by basing its attorney fees order in part on an

  unpublished Colorado Court of Appeals case; and (3) the trial court

  erred in basing its award of attorney fees on improper evidence.



                                    12
¶ 27   Patterson contends that the trial court erred in awarding

  attorney fees jointly and severally against an eighty-seven-year-old,

  impoverished, unemployed, homeless widow who played no active

  part in directing the litigation and who demonstrated no current,

  nor future, ability to pay such fee.

¶ 28   On cross-appeal, James contends that the trial court erred in

  failing to make factual findings when it ruled on James’s motion for

  attorney fees and costs and declined to assess fees on fees under

  section 13-17-102(2). We disagree with each of these contentions.

                         1.   Standard of Review

¶ 29   Lees and Patterson both state that their issues were preserved

  in Patterson’s response to James’s request for a ruling on her

  motion for attorney fees and costs. James states that her issue was

  preserved in briefing in support of her request for attorney fees. We

  agree that these issues were preserved.

¶ 30   We review the trial court’s decision to award attorney fees and

  costs for an abuse of discretion, but we review the legal conclusions

  which provide the basis for that decision de novo. Jorgensen v.

  Colo. Rural Props., LLC, 

 (Colo. App. 2010). A



                                    13
  trial court abuses its discretion when its decision is manifestly

  arbitrary, unreasonable, or unfair. E-470 Pub. Highway Auth. v.

  Revenig, 

 (Colo. App. 2006).

                      2.   Joint and Several Liability

¶ 31   Our primary task when construing a statute is to give effect to

  the General Assembly’s intent, which is determined first by looking

  to the plain language of the statute. Bostelman v. People, 

 (Colo. 2007). We consider statutes as a whole in order

  to effectuate legislative intent, and we give consistent, harmonious,

  and sensible effect to all the statute’s parts. Colo. Dep’t of Revenue

  v. Cray Computer Corp., 

 (Colo. 2001). However,

  where “a literal interpretation of the statute . . . leads to an absurd

  result,” the intent of the legislature will prevail. AviComm, Inc. v.

  Colo. Pub. Utils. Comm’n, 

 (Colo. 1998).

¶ 32   Article 17 of Title 13 provides Colorado courts with the

  authority to award attorney fees in certain circumstances. §§ 13-

  17-101 to -304, C.R.S. 2018. The legislature has instructed courts

  to “liberally construe the provisions of [the] article to effectuate

  substantial justice . . . .” § 13-17-101, C.R.S. 2018.



                                     14
¶ 33   Section 13-17-102(1) bestows a general grant of authority on

  any court of record to award reasonable attorney fees as part of a

  judgment, provided such an award is not precluded elsewhere in

  the article. A later subsection contains a similar general grant of

  authority: “When a court determines that reasonable attorney fees

  should be assessed, it shall allocate the payment thereof among the

  offending attorneys and parties, jointly or severally, as it deems

  most just, and may charge such amount, or portion thereof, to any

  offending attorney or party.” § 13-17-102(3).

¶ 34   Section 13-17-102(2), in contrast, is a more specific rule that

  requires the court to award fees against any attorney or party who

  has brought or defended a civil action that the court determines

  lacked substantial justification. Section 13-17-201 contains a

  similar specific mandate, providing that where a tort action is

  dismissed in its entirety pursuant to a Rule 12(b) motion, the

  defendant “shall have judgment for his reasonable attorney fees in

  defending the action.” The purpose of the latter provision is to

  “discourage the institution or maintenance of unnecessary tort

  claims.” US Fax Law Ctr., Inc. v. Henry Schein, Inc., 

,



                                    15
  518 (Colo. App. 2009) (citation omitted). There are two stark

  differences between the provisions: (1) section 13-17-102(2) applies

  regardless of when the matter is resolved, whereas section 13-17-

  201 applies only if the case is dismissed pursuant to Rule 12(b);

  and (2) section 13-17-102(2) requires a finding of lack of substantial

  justification, whereas section 13-17-201 applies automatically,

  without regard to whether the claims lacked justification.

¶ 35   Nothing in either of the specific mandates, however, exempts

  the concurrent application of the general rule set forth in section

  13-17-102(3). Nor does the text of section 13-17-102(3) limit its

  application only to fee awards entered pursuant to section 13-17-

  102. For these reasons, Lees’s statutory interpretation argument —

  that had the legislature intended to include the authority to make

  an award under section 13-17-201 joint and several, it would have

  said so — must fail. The legislature did not need to grant the

  specific authority for a joint and several award in section 13-17-

  201, because it had already created the general authority to do so

  in section 13-17-102(3).




                                    16
¶ 36   Moreover, interpreting the statute in the manner urged by

  Lees could lead to an absurd result. In this case, for example, in

  light of the complexity of the legal issues presented and Patterson’s

  deferential nature, the trial court found that Lees had appeared to

  make the critical legal decisions in this case. As the trial court

  aptly noted, it would be difficult to contemplate the deterrent effect

  intended by the legislature were fees to be awarded solely against

  Patterson. Rather, by generally authorizing joint and several fee

  awards under Article 17, the legislature enables the court to

  “effectuate substantial justice.” § 13-17-101.

¶ 37   Nor do we discern any abuse of discretion by the trial court in

  its decision to enter the fee judgment jointly and severally. In

  exercising this authority, a trial court should allocate sanctions

  between the attorney and the client according to their relative

  degrees of responsibility for the violation of the act. Anderson

  Boneless Beef, Inc. v. Sunshine Health Care Ctr., Inc., 

 (Colo. App. 1994). The record amply supports the trial court’s

  conclusion that Lees was the driving force behind the strategic

  decisions. As to Patterson, the trial court explicitly acknowledged



                                    17
  that it was required to consider the factors set forth in section 13-

  17-103, C.R.S. 2018. While the trial court appropriately considered

  Patterson’s age and limited resources, it also acknowledged the

  statutory goal of deterrence of unnecessary tort litigation. In view of

  the trial court’s findings, which find ample support in the record,

  we cannot conclude that the trial court’s decision to impose joint

  and several liability was manifestly arbitrary, unreasonable, or

  unfair.

                   3.   Reliance on Unpublished Case

¶ 38   Lees also argues that the trial court erred when it considered

  an unpublished court of appeals opinion that James provided to the

  court. He argues that both counsel’s citation to an unpublished

  opinion and the trial court’s consideration of that case for its

  persuasive impact run afoul of the court of appeals’s “Policy

  Concerning Citation of Unpublished Opinions.” This policy provides

  that “citation of unpublished opinions is forbidden, with the

  following exceptions: (1) [u]npublished opinions may be cited to

  explain the case history or to establish the doctrines of law of the

  case, res judicata, or collateral estoppel.” Colorado Court of



                                    18
  Appeals, Citation Policies, Policy Concerning Citation of Unpublished

  Opinions (2018), https://perma.cc/5GTB-QMA5. Lees

  misunderstands the reach of that policy.

¶ 39   The Colorado Supreme Court exercises administrative

  authority over the courts of this state. See, e.g., § 13-2-108, C.R.S.

  2018 (addressing the supreme court’s authority to promulgate rules

  of civil procedure); § 13-2-109, C.R.S. 2018 (addressing the

  supreme court’s authority to promulgate rules of criminal

  procedure); § 13-2-110, C.R.S. 2018 (addressing the supreme

  court’s power to institute rules of practice and prescribe forms of

  process to be used). The Colorado Court of Appeals has no such

  authority. See §§ 13-4-101 to -113, C.R.S. 2018.

¶ 40   Exercising its administrative authority, the supreme court has

  promulgated the Colorado Appellate Rules, including C.A.R. 35(f)

  which addresses unpublished opinions of the court of appeals.

  C.A.R. 35(e) makes clear that published opinions are binding

  precedent for “all lower court judges,” but our supreme court has

  made it equally clear that unpublished opinions “have no value as

  precedent,” Welby Gardens v. Adams Cty. Bd. of Equalization, 71



                                    

 (Colo. 2003). But C.A.R. 35(f) does not prohibit

  parties from citing an unpublished decision in a trial court, and the

  court of appeals’s policy merely addresses the use of unpublished

  opinions in briefs filed with, and in arguments presented to, the

  court of appeals. Consequently, the trial court did not err when it

  considered the unpublished decision for whatever persuasive value

  it may have had.

¶ 41   That being said, we do not mean to suggest that a trial court

  must consider such decisions at all. We simply acknowledge that

  unpublished does not mean confidential, and that our unpublished

  opinions are routinely shared among, for example, certain practice

  groups and specialty bars. As a result, it is not uncommon for trial

  courts to be asked to consider such an opinion. Because C.A.R.

  35(e) does not endow unpublished opinions with precedential

  weight, however, a trial court remains free to disregard them

  entirely if it so chooses.

¶ 42   We also stress that our opinion is in no way intended to

  impose an obligation on counsel to cite to unpublished opinions.

  Indeed, there is at present no comprehensive searchable database



                                   20
  available to counsel. Thus, counsel cannot be expected to ferret out

  every unpublished case that may have conceivable persuasive effect

  and provide it to the trial court.

¶ 43   Finally, we note with approval that, in this case, the opposing

  party was provided with a copy of the unpublished opinion and

  given the opportunity to argue its persuasive value to the trial

  court. Should a party wish the court to consider an unpublished

  opinion, or should a court on its own discover such an opinion it

  finds persuasive, all parties should be provided with similar notice

  and an opportunity to be heard.

                   4.   Reliance on Improper Evidence

¶ 44   Lees’s argument that the trial court relied on improper

  evidence in arriving at the fee award is also unavailing. When a

  statute providing for an attorney fee award does not provide a

  specific definition of “reasonableness,” the amount must be

  determined in light of all the circumstances, based on the time and

  effort reasonably expended by the prevailing party’s attorney.

  Tallitsch v. Child Support Servs., Inc., 

 (Colo. App.

  1996). In awarding attorney fees, a trial court may consider (1) the



                                       21
  amount in controversy; (2) the time required to effectively represent

  the client; (3) the complexity of the action; (4) the value of the legal

  services to the client; and (5) the customary practice in the legal

  community regarding fees in similar actions. See Fang v. Showa

  Entetsu Co., 

 (Colo. App. 2003); Porter v. Castle

  Rock Ford Lincoln Mercury, Inc., 

 (Colo. App.

  1995); see also Colo. RPC 1.5(a)(3) (recognizing “the fee customarily

  charged in the locality for similar legal services” as a factor to

  consider). There is no requirement that the court rely on particular

  forms of evidence in calculating the reasonableness of these fees.

¶ 45   Here, James met her burden of establishing reasonableness by

  providing testimony at the evidentiary hearing as well as sworn

  affidavits prior to the hearing. Both James and her attorney

  testified at the hearing. And each affidavit was supported by a

  redacted fee bill. Because it is not improper for the trial court to

  consider testimony and affidavits in determining the reasonableness

  of an attorney fee award under section 13-17-201, the trial court

  did not err in relying on this evidence.




                                     22
             5.    James’s Claim for Attorney Fees on Fees

¶ 46   Section 13-17-102(2) authorizes the court to award reasonable

  attorney fees against “any attorney or party who has brought or

  defended a civil action, either in whole or in part, that the court

  determines lacked substantial justification.” The trial court has

  broad discretion in deciding whether to grant or deny attorney fees

  under section 13-17-102. Consumer Crusade, Inc. v. Clarion Mortg.

  Capital, Inc., 

 (Colo. App. 2008). “When granting

  an award of attorney fees, the court shall specifically set forth the

  reasons for said award[.]” § 13-17-103(1).

¶ 47   Here, with respect to the opposition to both the motion to

  dismiss and the motion for attorney’s fees, the trial court explicitly

  declined to find that Patterson’s or Lees’s positions lacked

  substantial justification. We cannot say this determination was an

  abuse of the court’s discretion.

                      D.    Appellate Attorney Fees

¶ 48   Lastly, James requests an award of attorney fees incurred

  defending this appeal under section 13-17-201. Because James

  was successful in defending this appeal of claims dismissed under



                                     23
  Rule 12(b), she is entitled to such an award. See Dubray v.

  Intertribal Bison Coop., 

 (Colo. App. 2008); Wark

  v. Bd. of Cty. Comm’rs, 

 (Colo. App. 2002). We

  leave the determination of the amount of attorney fees to the trial

  court on remand. See C.A.R. 39.1; Dubray, 

.

                            III.   Conclusion

¶ 49   The judgment is affirmed. We remand the case to the trial

  court to enter an award of reasonable attorney fees incurred by

  James in defending this appeal.

       JUDGE HAWTHORNE and JUDGE BERNARD concur.




                                    24