13-17-201. Award of reasonable attorney fees in certain cases.
Statute text
(1) In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other persons, where any such action is dismissed on motion of the defendant prior to trial under rule 12 (b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action. This subsection (1) does not apply if a motion under rule 12 (b) of the Colorado rules of civil procedure is treated as a motion for summary judgment and disposed of as provided in rule 56 of the Colorado rules of civil procedure.
(2) Subsection (1) of this section does not apply to any claim that is a good faith, non-frivolous claim filed for the express purpose of extending, limiting, modifying, or reversing existing precedent, law, or regulation; or for the express purpose of establishing the meaning, lawfulness, or constitutionality of a law, regulation, or United States or state constitutional right and the meaning, lawfulness, or constitutionality has not been determined by the Colorado supreme court, or for cases presenting questions under the United States constitution, to the Supreme Court of the United States. This subsection (2) applies so long as the party that brought the dismissed claim has pleaded, in its complaint, counterclaim, or cross claim, that the dismissed claim was made for one of the express purposes stated in this subsection (2) and identified the precedent, law, or regulation the party seeks to extend, limit, modify, or reverse, or whether the issue to be decided is a matter of first impression.
History
Source: L. 87: Entire part added, p. 547, 2, effective July 1. L. 2022: Entire section amended, (HB 22-1272), ch. 445, p. 3131, 1, effective June 8.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "1988 Update on Colorado Tort Reform Legislation -- Part II", see 17 Colo. Law. 1949 (1988). For article, "Recent Developments in Governmental Immunity: Post-Trinity Broadcasting", see 25 Colo. Law. 43 (June 1996).
Purpose of section. In enacting this section, the general assembly sought to discourage and deter the institution or maintenance of unnecessary litigation involving tort claims. Emp'rs Ins. v. RREEF USA FUND-II, 805 P.2d 1186 (Colo. App. 1991); Monell v. Cherokee River, Inc., 2015 COA 21, 347 P.3d 1179.
Whether a plaintiff is penalized by having to pay a fee award to a defendant or a third party, such as an insurer, who actually paid the fees is irrelevant to the statute's purpose. Monell v. Cherokee River, Inc., 2015 COA 21, 347 P.3d 1179.
Section applies only to dismissal of an entire tort action, not to dismissal of a single claim. First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993); Holland v. Bd. of County Comm'rs, 883 P.2d 500 (Colo. App. 1994); Jaffe v. City & County of Denver, 15 P.3d 806 (Colo. App. 2000); Barton v. Law Offices of John W. McKendree, 126 P.3d 313 (Colo. App. 2005).
Section applies when a tort action is dismissed pursuant to C.R.C.P. 12(b). Statute neither explicitly nor implicitly contemplates the existence of physical harm to a person or property. Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994).
Section applies when an action is dismissed pursuant to C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). Smith v. Town of Snowmass Vill., 919 P.2d 868 (Colo. App. 1996).
Section applies not only to "baseless" tort claims that are dismissed under C.R.C.P. 12(b)(5), but also to any tort claim dismissed under the auspices of any provision of C.R.C.P. 12. Crow v. Penrose-St. Francis Healthcare Sys., 262 P.3d 991 (Colo. App. 2011).
Section does not apply to claims that are pleaded in contract, but are dismissed pursuant to the CGIA because they lie in tort or could lie in tort. Courts will not read the CGIA's concern for claims that "lie or could lie in tort" into the plain language of this section. Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008).
For purposes of applying this section, the court relies on plaintiff's characterization of the claims in the complaint and does not consider what should or might have been pled. Although the case was dismissed based on preemption after a determination that the action was grounded on federal laws, the dismissal of plaintiff's case triggered application of this section, because plaintiff's claims were pled as torts. Kennedy v. King Soopers Inc., 148 P.3d 385 (Colo. App. 2006).
Under this section, an award of attorney fees is mandatory when a trial court dismisses an action under C.R.C.P. 12(b). Barnett v. Denver Publ'g Co., 36 P.3d 145 (Colo. App. 2001); Wark v. Bd. of County Comm'rs, 47 P.3d 711 (Colo. App. 2002); Wilson v. Meyer, 126 P.3d 276 (Colo. App. 2005); Kreft v. Adolph Coors Co., 170 P.3d 854 (Colo. App. 2007); Falcon Broadband v. Banning Lewis Ranch, 2018 COA 92, 474 P.3d 1231.
A party who successfully defends a dismissal order under C.R.C.P. 12(b) is also entitled to recover reasonable attorney fees incurred on appeal. Henderson v. Bear, 968 P.2d 144 (Colo. App. 1998); Wark v. Bd. of County Comm'rs, 47 P.3d 711 (Colo. App. 2002); Wilson v. Meyer, 126 P.3d 276 (Colo. App. 2005); Estate of Harper ex rel. Al-Hamim v. Denver Health & Hosp. Auth., 140 P.3d 273 (Colo. App. 2006); Kreft v. Adolph Coors Co., 170 P.3d 854 (Colo. App. 2007); Ferrel v. Colo. Dept. of Corr., 179 P.3d 178 (Colo. App. 2007).
This section and 13-16-113 mandate awards of attorney fees and costs and do not permit a reduction for work that may be used in companion litigation. Crandall v. City & County of Denver, 238 P.3d 659 (Colo. 2010).
This section is applicable where both tort and non-tort claims are pled and dismissed under Fed. R. Civ. P. 12. This section applies in cases where all claims, both tort and non-tort, have been dismissed on Fed. R. Civ. P. 12 grounds. Torres v. Am. Family Mut. Ins. Co., 606 F. Supp. 2d 1286 (D. Colo. 2009).
But this section does not apply if a court does not dismiss all of the tort claims against a defendant or if an action contains both tort and non-tort claims and only the tort claims are dismissed. For this section to apply, a court must dismiss the entire action pursuant to a C.R.C.P. 12(b) motion and the action must be a tort action. Falcon Broadband v. Banning Lewis Ranch, 2018 COA 92, 474 P.3d 1231.
Award of attorney fees is mandatory when trial court dismisses an action under the CGIA for lack of subject matter jurisdiction. Ferrel v. Colo. Dept. of Corr., 179 P.3d 178 (Colo. App. 2007).
A "defendant" entitled to an award of attorney fees under this section includes a person sued via a counterclaim. Thus, a person can be both a plaintiff and a defendant simultaneously, as, for example, when a defendant asserts a cause of action as a third-party plaintiff. Gagne v. Gagne, 2014 COA 127, 338 P.3d 1152.
Trial court may award attorney fees and costs to a defendant when claims are still pending as to other defendants at the time of dismissal and, thus, the entire lawsuit has not been dismissed. By using the term "defendant" in the singular, this section necessarily applies to each defendant who has an action against it dismissed pursuant to C.R.C.P. 12(b)(1). Stauffer v. Stegemann, 165 P.3d 713 (Colo. App. 2006).
An award for fees under this section is appropriate where the entire action, not just some of the claims, is dismissed. State v. Golden's Concrete Co., 962 P.2d 919 (Colo. 1998); Dubray v. Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008); Semler v. Hellerstein, 2016 COA 143, 428 P.3d 555, rev'd on other grounds sub nom. Bewley v. Semler, 2018 CO 79, 432 P.3d 582; Dorsey v. Pueblo Sch. Dist. 60, 215 F. Supp. 3d 1092 (D. Colo. 2016).
The court's general authority to make awards joint and several granted by 13-17-102 (3) applies to cases governed by this section. Patterson v. James, 2018 COA 173, 454 P.3d 345.
This section applies separately to each defendant. Smith v. Town of Snowmass Vill., 919 P.2d 868 (Colo. App. 1996).
Thus, so long as all claims against a single defendant are dismissed, even though claims against other defendants may survive C.R.C.P. 12(b) motions, that defendant may recover under the statute. Smith v. Town of Snowmass Vill., 919 P.2d 868 (Colo. App. 1996); Semler v. Hellerstein, 2016 COA 143, 428 P.3d 555, rev'd on other grounds sub nom. Bewley v. Semler, 2018 CO 79, 432 P.3d 582.
This section applies to claims under the federal Lanham Act. Advanced Career Techs., Inc. v. Does, 100 F. Supp. 3d 1105 (D. Colo. 2015).
This section does not authorize recovery of attorney fees if a defendant obtains dismissal of some, but not all, of a plaintiff's tort claims. Sotelo v. Hutchens Trucking Co., 166 P.3d 285 (Colo. App. 2007); Colo. Special Dists. v. Lyons, 2012 COA 18, 277 P.3d 874.
Defendant may not recover attorney fees under this section when (1) the action includes both tort and nontort claims and (2) defendant has obtained dismissal of the tort claims, but not of the nontort claims, under C.R.C.P. 12. Sotelo v. Hutchens Trucking Co., 166 P.3d 285 (Colo. App. 2007).
Section does not apply to a 1983 claim. Instead, 42 U.S.C. 1988 applies, and that section does not authorize an award of fees and costs unless the claim is properly characterized as frivolous, vexatious, unreasonable, groundless, or made in bad faith. State v. Golden's Concrete Co., 962 P.2d 919 (Colo. 1998); Berg v. Shapiro, 36 P.3d 109 (Colo. App. 2001).
Although plaintiff's action should properly have been founded in tort under 13-21-115, plaintiff's claim was, nevertheless, framed as a contract claim, and it was the purported contract claim that was dismissed. Hence, this section, which authorizes attorney fee awards when a tort claim is dismissed prior to trial, is inapplicable. Sweeney v. United Artists Theater Circuit, 119 P.3d 538 (Colo. App. 2005).
Contrary to plaintiff's assertion that his action was primarily a contract action, six of eight claims against defendants, and eight of 10 claims asserted, were pleaded as tort claims within the meaning of this section. Dubray v. Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008).
In determining whether section applies, the court should focus on the manner in which claims are pled. Where plaintiff pled four contract claims and four tort claims, which all arose from the same nucleus of facts, and plaintiff chose to include the tort claims to obtain relief beyond what was available solely under a breach of contract theory, court did not err in determining that the section applied. Crow v. Penrose-St. Francis Healthcare Sys., 262 P.3d 991 (Colo. App. 2011).
A two-step analysis should be used. First, the court should apply the predominance test, assessing whether the essence of the action is tortious in nature. Then, if the predominance test fails to yield a clear answer, the court should determine whether tort claims were asserted to unlock additional remedies. Gagne v. Gagne, 2014 COA 127, 338 P.3d 1152.
When a plaintiff has pleaded both tort and nontort claims, the court must determine, as a matter of law, whether the essence of the action was one in tort in determining whether section applies. Where a third-party defendant facially alleged a tort counterclaim, the defendant was not entitled to application of this section because the overall action was more accurately characterized as a contract action in that all of the counterclaims were based on acts or omissions related to an alleged breach of contract. Liberty Bankers Life v. First Citizens, 2014 COA 151, 411 P.3d 111.
In determining whether this section applies, the court must decide whether the essence of the entire action was primarily a tort action. Because the claim for breach of duty to a creditor did not seek to obtain additional tort remedies and the overall purpose of all the claims was to collect workers' compensation awards and judgments already obtained, the essence of the action was not one sounding in tort, therefore this section does not apply. Castro v. Lintz, 2014 COA 91, 338 P.3d 1063.
The claim to pierce the corporate veil to enforce an underlying judgment for a workers' compensation claim is not a tort claim contemplated by the general assembly to be encompassed under this section. Castro v. Lintz, 2014 COA 91, 338 P.3d 1063.
Section does not apply to a 24-34-402.5 claim because, for purposes of this section, a claim for unlawful prohibition of legal activities as a condition of employment is not a tort. The primary purpose of a tort law is to compensate plaintiffs for injuries wrongfully suffered at the hands of others. The purpose of a 24-34-402.5 claim is to eliminate workplace discrimination based on lawful, off-the-job activity. Coats v. Dish Network, L.L.C., 2013 COA 62, 303 P.3d 147, aff'd on other grounds, 2015 CO 44, 350 P.3d 849.
Trial court did not err in failing to apportion attorney fees requested based on tort versus nontort claims. Even if defendants were entitled to recover fees and costs associated with dismissal of only the tort claims, apportionment would be unwarranted because the entire action was dismissed for the same reason (lack of personal jurisdiction) and defendants would have incurred the same, or nearly the same, fees had the case involved only the tort claims. Dubray v. Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008).
Mandatory attorney fees award provision of this section contains no express exclusion for claims brought in a good faith attempt to establish a new rule of law. Houdek v. Mobile Oil Corp., 879 P.2d 417 (Colo. App. 1994); Tunget v. Bd. of County Comm'rs, 992 P.2d 650 (Colo. App. 1999).
Attorney fees mandatory when motion to dismiss for failure to join an indispensable party granted; consideration of evidentiary matters did not convert motion to a motion for summary judgment. Lyon v. Amoco Prod. Co., 923 P.2d 350 (Colo. App. 1996).
To the extent this section and 13-17-102 (7) are in conflict concerning a good faith tort action that is dismissed pursuant to C.R.C.P. 12(b), this section controls as it is more specific to such action and was enacted later in time than 13-17-102 (7). Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994); Hewitt v. Rice, 119 P.3d 541 (Colo. App. 2004), aff'd on other grounds, 154 P.3d 408 (Colo. 2007).
By implication, this section allows a plaintiff to escape liability for attorney fees by seeking a voluntary dismissal, filing a stipulation of dismissal, or confessing to a defense motion to dismiss under C.R.C.P. 12(b); however, section is not applicable when plaintiffs seek to maintain state law claims unless and until federal court determines that a federal cause of action exists. Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994).
Trial court is not duty-bound to conduct a separate hearing on the issue of attorney fees before it may deny a request therefor. Hunter v. Colo. Mtn. Jr. Coll., 804 P.2d 277 (Colo. App. 1990).
When fees are awarded, the court is required to make evidentiary findings and must provide the opportunity for a hearing. Pedlow v. Stamp, 776 P.2d 382 (Colo. 1989); Little v. Fellman, 837 P.2d 197 (Colo. App. 1991); Walker v. Women's Prof'l Rodeo Ass'n, 2021 COA 105M, 498 P.3d 648.
Trial court did not err in treating motion to dismiss as a C.R.C.P. 56 motion for summary judgment, despite fact that no affidavits or documents outside the pleadings were presented; thus, statute permitting award of attorney fees in actions brought as a result of death or injury to person or property, where the action is dismissed on motion of the defendant prior to trial, did not apply. Willer v. City of Thornton, 817 P.2d 514 (Colo. 1991).
When a defendant has two valid defenses to a tort claim and one meets the statutory requirements for the granting of attorney fees under this section, such fees should be awarded. Because this section precludes the recovery of attorney fees whenever a motion is converted to summary judgment, a defendant who prevails on a motion to dismiss based on first amendment immunity generally may not recover attorney fees. Here, however, because there is an alternative, independent ground upon which respondent's claim may be dismissed that comes within this section, petitioner can recover his or her attorney fees. Petitioner may recover his or her attorney fees because his or her motion to dismiss respondent's claim succeeds not only on the basis of his or her first amendment defense, but also on the independent, alternative basis under C.R.C.P. 12(b)(5) that respondent failed to state a claim upon which relief could be granted. Krystkowiak v. W.O. Brisben Cos., 90 P.3d 859 (Colo. 2004).
Defendant not entitled to attorney fees where court converted C.R.C.P. 12(b)(1) motion to dismiss to a motion for summary judgment under C.R.C.P. 56. The fact that the court found plaintiff's allegations of willfulness and wantonness insufficient on their face to support subject matter jurisdiction under the Governmental Immunity Act does not render the dismissal one under C.R.C.P. 12(b). In deciding the question of sovereign immunity, the court necessarily construed the act and issued a legal finding that disposed of the case. That the trial court considered no matters outside the pleadings in doing so was deemed inconsequential. Zerr v. Johnson, 905 F. Supp. 872 (D. Colo. 1995).
The exception to this section's general applicability is applicable only in the case of a C.R.C.P. 12(b)(5) motion and not in the case of a C.R.C.P. 12(b)(1) motion challenging the court's subject matter jurisdiction. Crow v. Penrose-St. Francis Healthcare Sys., 262 P.3d 991 (Colo. App. 2011).
C.R.C.P. 12(b) authorizes the court to consider evidence outside the pleadings without converting the motion into a summary judgment motion for motions under subsection C.R.C.P. 12(b) other than C.R.C.P. 12(b)(5). Aztec Minerals Corp. v. State, 987 P.2d 895 (Colo. App. 1999).
Trial court erred in refusing to award a defendant attorney fees because facts had to be presented and determined by the court. Under the plain language of this section, an award of attorney fees is mandatory when a trial court dismisses an action under the Colorado Governmental Immunity Act for lack of subject matter jurisdiction. Smith v. Town of Snowmass Vill., 919 P.2d 868 (Colo. App. 1996); Villalpando v. Denver Health & Hosp. Auth., 181 P.3d 357 (Colo. App. 2007).
Since the court declined to grant the defendant's motion to dismiss until it heard the evidence presented at trial, this is not a situation in which a defendant delayed seeking dismissal and incurred attorney fees that a timely motion to dismiss could have avoided. Therefore, the court is right in awarding attorney fees pursuant to this section. Abrahamson v. City of Montrose, 77 P.3d 819 (Colo. App. 2003).
This section not in conflict with 6-1-113 of the Colorado Consumer Protection Act. This section applies to a motion pursuant to C.R.C.P. 12(b) while 6-1-113 allows attorney fees when claims are groundless and in bad faith or for the purpose of harassment. The provisions can stand side by side because they mandate awards in different circumstances. US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205 P.3d 512 (Colo. App. 2009).
This section applies only when an action is dismissed and does not apply when only a single claim is dismissed. First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993); Sundheim v. Bd. of County Comm'rs of Douglas County, 904 P.2d 1337 (Colo. App. 1995), aff'd, 926 P.2d 545 (Colo. 1996); Berg v. Shapiro, 36 P.3d 109 (Colo. App. 2001); U.S. Fax Law Ctr., Inc. v. T2 Techs., Inc., 183 P.3d 626 (Colo. App. 2007); Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282 (Colo. App. 2009).
The defendant is not entitled to attorney fees when only a single fraud claim was dismissed under a motion to dismiss for failure to state a claim of relief. First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993).
Recovery of attorney fees not limited only to fees incurred in preparing motion to dismiss. This section does not so limit an award and instead expressly authorizes "attorney fees in defending the action". Dubray v. Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008).
Absent a finding that the defense to a motion for fees lacks substantial justification, fees and costs may not be awarded for challenging that defense. Foxley v. Foxley, 939 P.2d 455 (Colo. App. 1996).
Plaintiffs did not have standing to challenge an award of attorney fees entered pursuant to this section against plaintiffs' counsel. Appeal properly dismissed where counsel had not filed a separate notice of appeal or added his name as an appellant to the appeal. Henderson v. Bear, 968 P.2d 144 (Colo. App. 1998).
Defamation is "an injury to person or property occasioned by the tort of any other person" and therefore an award of attorney fees is appropriate under this section upon a dismissal pursuant to C.R.C.P. 12(b). Barnett v. Denver Publ'g Co., Inc., 36 P.3d 145 (Colo. App. 2001).
A party who prevails in an action to pierce the corporate veil of a corporation may recover the attorney fees incurred in that action if (1) the action was brought to enforce a breach of contract judgment against the corporation and (2) the contract underlying the judgment authorized an award of fees for enforcing the judgment against the corporation. Swinerton Builders v. Nassi, 2012 COA 17, 272 P.3d 1174.
Applied in Giduck v. Niblett, 2014 COA 86, 408 P.3d 856; Falcon Broadband v. Banning Lewis Ranch, 2018 COA 92, 474 P.3d 1231; Duke v. Gunnison County, 2019 COA 170, 456 P.3d 38.