Tag Archives: Fees and Costs

James C. Smith and Dona Laurita, v. Alan W. Kinningham and Accelerated Network Solutions, Inc., 2013COA,103 (July 3, 2013)

After all these years, rear-end car accidents still produce new law. Here, the court of appeals held that evidence of Medicaid benefits were properly excluded by the collateral source rule. Under CRS 10-1-135, any collateral source payment is excluded from evidence. Medicaid payments are a collateral source, and the statute abrogated the common law “gratuitous government benefits exception.”  Plaintiffs’ claims against ANS, the company insuring the car, were dismissed; thus, ANS as the prevailing party was entitled to costs but not fees because the claims were not frivolous. The remaining issues got short shrift: 1) the sudden emergency doctrine has been abolished; 2) a party who requests a hearing on costs is entitled to one; 3) Plaintiffs were awarded appellate fees because Defendants frivolously argued for a new trial under CRCP 59 based on a requirement that did not exist.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0156%20&%2012CA0157-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9020&courtid=1

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Filed under Evidence, Personal Injury, Torts

In re the Estate of Charles Erroll Hossack, deceased, Gladys Robinson v. Lori Hossack and Kirk Hossack, 2013COA64 (April 25, 2013)

A contempt of court order issued to compel compliance cost $231,300. Before 1995, CRCP 107 limited remedial contempt fines paid to parties; anything in excess of actual damages, costs and fees was outside the court’s jurisdiction. The 1995 amendments and the current rule now permit a fine paid to a party to exceed the damages caused by the contempt. Here, appellant was ordered to return property to decedent’s children; she disobeyed the order. The trial court issued a continuing fine of $100/day that grew to $1000/day after continued non-compliance. She claimed the trial court lacked jurisdiction and, under CRCP 60, the judgment was void. The trial court disagreed. The court of appeals also rejected her arguments and the pre-1995 cases on which she relied because Rule 107 now permits such fines. The trial court had jurisdiction, and thus properly denied relief under CRCP 60.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA1465-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8924&courtid=1

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Vista Ridge Master Homeowners Association, Inc., v. Arcadia Holdings at Vista Ridge, LLC, 2013COA26 (February 28, 2013)

Denial – it’s not just another common interest community. It is what happens when a developer tries to withdraw a portion of property from a community after other portions have been sold. Vista Ridge was established by a recorded Declaration under the Colorado Common Interest Ownership Act (CCIOA), which permitted a “portion” of lots within the community to withdraw so long as no lot within the “portion” had been sold. 94 lots were added to Vista Ridge and 8 were sold. Arcadia owned 70, and attempted to withdraw them. The HOA sued; the trial court denied Arcadia’s attempt. The court of appeals affirmed, holding the word “portion” in CCIOA CRS 38-33.3-210(4), unambiguously refers to property described within a recorded declaration. The 94 lots were described; Arcadia’s lots were not, and couldn’t be withdrawn. The HOA was awarded attorneys’ fees plus the 18% interest on assessments.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0967-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8852&courtid=1

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Holly Averyt v. Wal-Mart Stores, Inc., 2013COA10 (January 17, 2013)

Time is money, especially to a judgment creditor. Here, a jury found for Plaintiff in a slip-and-fall case. But the trial court vacated the judgment and ordered a new trial. Plaintiff appealed to the Supreme Court, which reinstated judgment. The trial court awarded damages and post-judgment interest at the statutory rate of 9%. On appeal again, Defendant argued that the correct post-judgment interest rate should be the market-based rate, currently at 3%, used if a judgment debtor appeals. The court of appeals disagreed, holding that CRS 13-21-101’s appealing-judgment-debtor market rate does not apply to a judgment creditor who appealed after judgment was vacated, because a favorable judgment had been entered. Separately, though Defendant’s challenge to the sufficiency of the evidence was unsuccessful; it was not groundless or frivolous, so attorney fees were not awarded.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0644-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8804&courtid=1

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Extreme Construction Co. v. RGC Glenwood, LLC and Mike Spradlin, 2012COA220 (December 27, 2012)

Ambiguity keeps lawyers employed. In this case, a construction contract had an ambiguous “Cost/Plus” price provision that “included, without limitation” “wages [of] construction workers directly employed.” Owner believed the price was limited to the actual cost of wages. Builder believed “costs” referred to fixed wage rates that included unemployment insurance, workers’ compensation, and other expenses. Owner did not object to Builder’s interpretation until after litigation arose. The court of appeals held that Owner was estopped from arguing his interpretation was correct because he had full knowledge of the facts, unreasonably delayed, and Builder detrimentally relied on Owner’s delay. This was the first time a Colorado court applied the equitable estoppel doctrine to the interpretation of an ambiguous contract. It was remanded to recalculate damages.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0084-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8788&courtid=1

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Michelle Banning v. William Prester, 2012COA215 (December 27, 2012)

Scene 1: “I just got rear-ended – I’m OK, just shaken.” Scene 2, days later: “My neck and back really hurt.” So starts a familiar drama in this personal injury case. The defense in this damages-only trial was how much of the medical bills the defendant should pay. The trial court instructed the jury to reduce damages if they found plaintiff had continued expensive treatment though it did not resolve her pain. The court of appeals reversed, finding zero support for the proposition that a plaintiff has an affirmative duty to end treatment if it is expensive and ineffective. Another instruction on the reasonableness and necessity of treatment, which was also given, sufficiently addressed the issue. Addressing evidentiary issues, the court cited Cosgrove for the collateral source rule, and approved admission of evidence of delayed recovery syndrome and previous domestic violence.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1093-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8783&courtid=1

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Filed under Appellate Review Challenged, Evidence, Personal Injury, Torts

BSLNI, Inc. v. Russ Diamonds, Inc, 2012COA214 (December 6, 2012)

Win the battle, lose the war. In this construction contract case, on the evening before trial and after a year of litigation, Defendant moved to dismiss Plaintiff’s tort claim on the grounds that it was barred by the economic loss rule. The trial court did so, ostensibly under CRCP 12(b), but allowed Plaintiff to add a breach of contract claim. Plaintiff won at trial. Defendant sought, but was denied, mandatory attorneys’ fees because the tort claim was dismissed. The court of appeals held that, because Defendant moved to dismiss after the answer was filed, it was a CRCP 12(c) motion, so fee awards are not mandatory. The court also held that when a construction contract provides its own standard by which work must be performed, the contract’s standard applies, not industry standards. And, if a lay person could apply that standard, expert testimony may not be, and was not required here.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2078-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8774&courtid=1

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Filed under Contracts, Evidence, Torts

In re the Marriage of James Nelson and Gricela Nelson, 2012COA205 (November 21, 2012)

A divorce can be an end or a beginning. In this case, it was neither. Substantively, this appeal concerned a modification of a prior award of spousal maintenance (a/k/a alimony) and awarded the ex-wife maintenance until remarriage, age 65, or death. Both parties sought attorneys’ fees. Ex-husband appealed before the trial court ruled on the fees motions. Over a dissent, the court of appeals held it had jurisdiction notwithstanding the lack of an order on the fee issues as it would not affect the maintenance decision. Addressing the merits, the court 1) declined to use the child support formula to calculate husband’s income, 2) agreed that the debilitating effects of fibromyalgia on ex-wife, and the ex-husband’s increased income supported a finding of substantial and continuing change, justifying additional maintenance, and 3) affirmed the retroactive award of maintenance.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2272-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8755&courtid=1

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Filed under Appellate Review Challenged, Family Law

Michael Graham v. Zurich American Insurance Company, 2012COA188 (November 1, 2012)

Admit it if you are wrong, fix it, and move on. The trial court did that here. In this Colorado Wage Claim Act case, the dispute was whether the employer would be liable for unpaid wages under the statute. The jury said yes, but failed to add statutory penalties. To correct that error, the court had the jury revisit its verdict; it then found for the employer. That was error. Damages are not facts for a jury to decide if, as in this case, a statute provides for mandatory penalties that can be mechanically determined by applying the statute. But, post-verdict, the trial court realized its mistake, reconsidered, found for the employee, and awarded mandatory penalties. The court of appeals agreed that the trial court erred by having the jury revisit its initial findings, and held that, though the error was avoidable, the trial court properly reconsidered its first ruling and fixed the problem.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/10CA2265-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8722&courtid=1

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Melat, Pressman & Higbie, LLP v. Hannon Law Firm, LLC, 2012CO61 (October 22, 2012)

No one likes to split winnings. But, in contingency fee agreements, if the client wins, the attorney gets some of the winnings. In this case, three firms agree to represent a client on a contingent basis. One firm leaves about halfway through. The client settles and the two remaining firms split the one-third fee. They cut the early-departing firm out of the fees. There is no contract among the firms regarding their split. The third firm brings a quantum meruit claim (unjust enrichment) seeking their third of the fees. The Court, upholding a court of appeals decision, held that even if an attorney has no right to claim quantum meruit from the client (because of the lack of due notice to the client), such claims can still be brought against co-counsel. Without deciding the statute of limitations period is 3 years, the Court held that a claim accrues at the time of settlement or judgment.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC265.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8706&courtid=2

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Filed under Appellate Review Challenged, Attorney Regulation, Contracts