COLORADO COURT OF APPEALS                                       2016COA163


Court of Appeals No. 15CA1421
City and County of Denver Probate Court No. 11PR928
Honorable Elizabeth D. Leith, Judge


In re the Estate of Calvin Shimizu, a/k/a Calvin Kiyoshi Shimizu, a/k/a Calvin
K. Shimizu, deceased.

Jamie Szoke, as Personal Representative of the Estate of Calvin Shimizu, and
individually, a/k/a Jamie Lee Tomie-Szoke and Jamie Lee Shimizu,

Appellant,

v.

Bonnie Rae Trujillo-Dickson, James Gillen Dickson, and Ann Kathleen May,

Appellees.


                              ORDER AFFIRMED

                                 Division II
                         Opinion by JUDGE DAILEY
                       Furman and Harris, JJ., concur

                        Announced November 3, 2016


Miller & Steiert, P.C., Gary Clexton, Christopher J. Forrest, Mollie B. Hawes,
Littleton, Colorado; Clauss & Associates, P.C., Eliot R. Clauss, New York, New
York, for Appellant

Hunsaker Emmi, P.C., Donald T. Emmi, William J. Hunsaker, Golden,
Colorado, for Appellees
¶1     Petitioner, Jamie Szoke, a/k/a Jamie Lee Shimizu, a/k/a

 Jamie Lee Tomie-Szoke (Szoke), individually and as personal

 representative of the estate of decedent, Calvin Shimizu, a/k/a

 Calvin Kiyoshi Shimizu, a/k/a Calvin K. Shimizu, appeals the

 probate court’s order awarding respondents, Bonnie Rae Trujillo-

 Dickson, James Gillen Dickson, and Ann Kathleen May (Recipients),

 attorney fees under section 13-17-102, C.R.S. 2016. We affirm.

                            I.   Background

¶2     Decedent’s half-sister, Szoke, challenged the validity of a deed

 that decedent had executed near the end of his life. In that deed,

 decedent purported to convey his house to three of his close friends,

 i.e., the Recipients.

¶3     Decedent died intestate and survived by Szoke, with whom he

 had not spoken since their father’s funeral more than two decades

 earlier.

¶4     As pertinent here, Szoke claimed that the deed was invalid

 because decedent (1) lacked testamentary capacity to transfer

 property and (2) was subjected to the undue influence of friends

 who were in dire financial straits. At trial, Szoke testified that she

 believed decedent would have wanted his house to go to relatives,


                                    1
 and she presented a cousin who related that, two months before his

 death, decedent offered to give her (the cousin) the house. Szoke

 also presented evidence (1) from a doctor, who opined, from a

 review of decedent’s medical records, that decedent’s physical and

 mental condition, together with the heavy doses of narcotic pain

 medication he was taking, would have substantially decreased his

 ability to comprehend legal documents; (2) of the Recipients’

 financial problems; and (3) from a handwriting expert, who opined

 based on comparisons between the documents signed the day the

 deed was executed, that the signature on the deed was not that of

 decedent but, rather, that of one of the Recipients.

¶5    At the conclusion of Szoke’s case-in-chief, the Recipients

 moved for dismissal under C.R.C.P. 41(b)(1), but the court denied

 that motion.

¶6    The Recipients testified to their close friendship with decedent

 and that decedent understood what he was doing and wanted to

 give them his house. They presented the attorney who prepared the

 deed, who testified to the process he followed to ensure decedent

 was mentally competent and to protect against undue influence.

 They also presented testimony from several hospice staff members


                                   2
 (including a doctor) and two of decedent’s other friends, all of whom

 confirmed that decedent had acted consistently with his express

 desires, and with sufficient mental acuity, when he executed the

 deed before a notary public.

¶7    Ultimately, the probate court rejected Szoke’s claims, finding

 the Recipients’ case far more persuasive because it was based on

 evidence from persons who had direct contact with decedent near or

 at the time the deed was executed, and not all of whom were

 interested in the outcome of the case. Based on its appraisal of the

 case, the court also determined that the Recipients were entitled to

 an award of attorney fees under section 13-17-102 because Szoke’s

 claims “lacked substantial justification” and were “groundless, in

 that she presented valid theories of undue influence and lack of

 capacity, but offered little or nothing to support those claims.”

¶8    The probate court’s order rejecting Szoke’s claims was affirmed

 on appeal. In re Estate of Shimizu, (Colo. App. No. 14CA2024, Feb.

 25, 2016) (not published pursuant to C.A.R. 35(f)) (Shimizu I). But

 because the amount of the attorney fees award had not been

 determined when Szoke filed her notice of appeal, the division was




                                    3
  not presented with a final, appealable attorney fees order it could

  review.

¶9       The probate court has since determined that the Recipients

  are entitled to an award of $68,182.01 in attorney fees. In its order

  setting the amount of attorney fees, the court, in addressing the

  basis for awarding fees, cited sections 13-17-101, et al., but did not

  reference groundlessness as the reason for its award. Instead, it

  referenced a prior finding that Szoke “prosecuted this case despite

  all facts leading to a conclusion that Decedent had legal and

  testamentary capacity and disposed of his assets in the manner in

  which he intended.”

¶ 10     Szoke now appeals the attorney fees award, challenging not

  the amount awarded, but only the basis for the award.

       II.   The Probate Court Did Not Err in Awarding Attorney Fees

¶ 11     Szoke contends that the probate court erroneously awarded

  attorney fees to the Recipients under section 13-17-102. More

  specifically, she asserts that the probate court erred in (1) relying

  on certain testimony presented by the Recipients because it was

  undisclosed expert evidence and (2) determining that her claims

  lacked substantial justification. We disagree with both contentions.


                                     4
         A.   Court’s Reliance on Undisclosed Expert Testimony

¶ 12   In this part of her appeal, Szoke asserts that the probate court

  erred in relying on certain evidence that was improperly admitted

  because it was undisclosed expert testimony. In Shimizu I, the

  division determined, contrary to Szoke’s assertion, that the evidence

  was admissible.

¶ 13   “Conclusions of an appellate court, and rulings logically

  necessary to those conclusions, become the law of the case and

  generally must be followed in later proceedings.” Interbank Invs.,

  LLC v. Eagle River Water & Sanitation Dist., 77 P.3d 814, 817 (Colo.

  App. 2003). Szoke has given us no reason why we should depart

  from the ruling in Shimizu I, and we perceive none.

¶ 14   Because, under Shimizu I, the challenged evidence was held to

  be admissible, the district court could consider it for anything for

  which it was relevant.

                 B.    The Merits of the Court’s Decision

¶ 15   We review an award of attorney fees under section 13-17-102

  for an abuse of discretion. New Design Constr. Co. v. Hamon

  Contractors, Inc., 215 P.3d 1172, 1185-86 (Colo. App. 2008). A

  court abuses its discretion where its decision rests on a


                                     5
  misunderstanding or misapplication of the law, Genova v. Longs

  Peak Emergency Physicians, P.C., 72 P.3d 454, 458 (Colo. App.

  2003), or is manifestly arbitrary, unreasonable, or unfair. E-470

  Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230 (Colo. App.

  2006).

¶ 16   Pursuant to subsections 13-17-102(2) and (4), a trial court

  shall award attorney fees if a party “brought . . . an action . . . that

  lacked substantial justification.” “Lacked substantial justification”

  is defined as “substantially frivolous, substantially groundless, or

  substantially vexatious.” § 13-17-102(4).

¶ 17   In its initial attorney fees order, the probate court reiterated

  the three parts of the “lacked substantial justification” definition; it

  then proceeded, however, to further rely on only two parts of that

  definition, i.e., those relating to “groundless” or “vexatious” claims.

                           1.    Groundlessness

¶ 18   The probate court found that Szoke’s claims were “groundless”

  because she did not present much evidence to support her claims,

  and the court did not “credit” or believe her evidence in light of the

  Recipients’ evidence. In these regards, the court found:




                                      6
 Szoke had presented a “dearth of evidence” to support

  her claims of undue influence and lack of capacity.

 She “was unable to secure witnesses who knew Decedent

  and the circumstances to support her position and

  resorted to the use of expert testimony based primarily

  upon review of the hospice records and witness

  depositions.”

 Szoke “would have the Court find that [the Recipients’

  financial circumstances] led [the Recipients] to

  orchestrate a plan to deprive the [decedent] and by

  extension herself, of the [decedent’s] assets after his

  death.”

 “To effectuate this plan the [Recipients] would have

  required the cooperation of hospice staff. . . . [T]he

  evidence simply does not support this conclusion even

  remotely. The testimony of all witnesses who knew

  Decedent and were actually involved was not in conflict

  and was consistent. The only inconsistent testimony was

  presented by [Szoke’s experts], none of whom had any




                          7
             relationship with [decedent] and none of whom were

             present during his life or last illness.”

           In the end, Szoke was “unable to prove her claims with

             credible evidence from eyewitnesses to the events at

             issue.”

¶ 19   “A claim is substantially groundless if the allegations in the

  complaint, while sufficient to survive a motion to dismiss for failure

  to state a claim, are not supported by any credible evidence at

  trial.” City of Aurora ex rel. Util. Enter. v. Colo. State Eng’r, 105 P.3d

  595, 618 (Colo. 2005).

¶ 20   The section 13-17-102 groundlessness inquiry turns, then, on

  whether the party presented “any credible evidence” on her behalf.

  The phrase “credible evidence” is nowhere defined in our case law.

  The term “credible,” though, is commonly understood as meaning

  capable of being credited or believed. Comperry v. State, 375

  S.W.3d 508, 510-15 (Tex. App. 2012); see Wonnum v. State, 942

  A.2d 569, 573-74 (Del. 2007) (capable of being believed); Smith v.

  State, 925 So. 2d 825, 838-39 (Miss. 2006) (same). It is not

  synonymous with the term “credited.” See, e.g., Hlad v. State, 565

  So. 2d 762, 776-78 (Fla. Dist. Ct. App. 1990) (Cowart, J.,


                                      8
  dissenting) (“Credited means believed . . . . Credible means capable

  of being believed . . . .”), approved, 585 So. 2d 928 (Fla. 1991).

¶ 21   Thus, something can be “credible” without the necessity of its

  ultimately being “believed” or accepted by the trier of fact. Indeed,

  courts have applied this meaning in the context of determining

  whether “some” or “any” credible evidence supports a criminal

  defendant’s request for an affirmative defense instruction. See

  § 18-1-407(1), C.R.S. 2016 (setting forth “credible evidence”

  requirement); see also, e.g., Lybarger v. People, 807 P.2d 570, 580

  (Colo. 1991) (The court’s “function is not to determine the credibility

  of various witnesses or the weight to be given their testimony, but

  rather simply to decide whether there is evidence in the record to

  satisfy the rather low statutory standard for submitting an

  affirmative defense to a jury.”); Gutierrez v. State, 842 A.2d 650, 653

  (Del. 2004) (“Once the judge determines that the evidence is

  ‘credible’ in the sense of being possible, he or she should submit to

  the jury the question of which version of the facts is more believable

  and supported by the evidence as a whole.”); cf. Hlad, 565 So. 2d at

  777 (Cowart, J., dissenting) (The word “credible” relates “not to

  some quantum measure of evidence nor to a fact-finder’s subjective


                                     9
  weighing of the quality (credit-worthiness) of evidence . . . but to an

  objective recognition of the matter offered as being evidence capable

  of being believed and capable of supporting a fact-finding.”).1

¶ 22   In the section 13-17-102 groundlessness context, the term

  “credible” conveys the same type of meaning presented in the

  above-mentioned authorities, that is, whether “some” non-

  inherently incredible evidence was presented in support of a claim

  or defense. See Consumer Crusade, Inc. v. Clarion Mortg. Capital,

  Inc., 197 P.3d 285, 291 (Colo. App. 2008) (groundlessness shown

  when claim “lacks admissible evidence to support” it); Nienke v.

  Naiman Grp., Ltd., 857 P.2d 446, 450 (Colo. App. 1992) (A fee award

  based on “groundlessness” was reversed because the “evidence,

  while not perhaps persuasive to the trial court, was clearly

  sufficient to support a reasonable inference that defendants [did

  something wrong]. . . . [T]his evidence constituted ‘some credible

  evidence,’ in support of this claim despite the law firm’s inability to

  1 Judge Cowart went on to note that the word “credible” is “intended
  to exclude only evidence that is inherently incredible, such as
  asserted facts or events that are contrary to commonly known and
  generally accepted scientific or mathematical principles, geographic
  facts, natural laws or common sense.” Hlad v. State, 565 So. 2d
  762, 777 (Fla. Dist. Ct. App. 1990) (Cowart, J., dissenting),
  approved, 585 So. 2d 928 (Fla. 1991).

                                     10
  convince the court that it had established a prima facie case.”);

  Colo. Supply Co. v. Stewart, 797 P.2d 1303, 1307-08 (Colo. App.

  1990) (reversing fee award based on “groundlessness” because

  “plaintiff introduced some evidence” in support of his claim); see

  also Comput. Assocs. Int’l, Inc. v. Am. Fundware, Inc., 831 F. Supp.

  1516, 1523 (D. Colo. 1993) (“[A]n award of attorney fees under the

  Colorado statute is contingent on there being no evidence at

  trial . . . .”); Kahn v. Cundiff, 533 N.E.2d 164, 171 (Ind. Ct. App.

  1989) (using Colorado’s “credible evidence” test to arrive at

  conclusion that “a claim or defense is groundless if no facts exist

  which support the legal claim relied on and presented by the losing

  party”), aff’d, 543 N.E.2d 627 (Ind. 1989).

¶ 23   Measured by this standard, Szoke presented “credible

  evidence” to support her claims, even though much of it was

  presented through experts rather than by eyewitnesses near the

  time of decedent’s death.2 Szoke’s physician expert in toxicology


  2 The probate court must itself have felt that way at one point. It
  did, after all, deny the Recipients’ midtrial C.R.C.P. 41(b)(1) motion
  to dismiss. In so doing, the court necessarily determined not only
  that Szoke had presented a prima facie case, but that Szoke’s
  evidence carried sufficient weight to preclude entry of judgment for
  the Recipients at that point. See 12 Debra Knapp et al., Colorado

                                     11
opined based on decedent’s medical records that heavy, escalating

doses of pain medications compromised decedent’s mental capacity,

and would have diminished his ability to understand legal

documents. Szoke’s handwriting expert analyzed and compared the

signatures on the documents and opined that decedent’s signature

on the deed matched the handwriting of one of the Recipient’s

signatures. Szoke’s other evidence revealed that the Recipients

struggled financially, raising a potential motive for undue influence,

and intimated that decedent would have wanted to give his property

to relatives.




Practice Series, Civil Procedure Forms & Commentary § 41.4 (2d ed.
2016) (“[T]he Rule 41(b) inquiry is not simply confined to
determining whether the plaintiff presented a prima facie case, but
also as to whether or not the defendant should have a dismissal
based upon the plaintiff’s evidence.”) (footnote omitted); see also
City of Aurora ex rel. Util. Enter. v. Colo. State Eng’r, 105 P.3d 595,
614 (Colo. 2005) (unlike determining whether a prima facie case
has been presented, under C.R.C.P. 41(b)(2) a court is not required
to accept evidence as true because there is no contrary evidence,
but may determine the facts and enter judgment against the
plaintiff); Pub. Serv. Co. of Colo. v. Bd. of Water Works, 831 P.2d
470, 480 (Colo. 1992) (“[T]he water court did not err by . . .
requiring the applicant to establish more than a prima facie case at
mid-trial to avoid judicial fact finding and dismissal under C.R.C.P.
41(b).”).

                                  12
¶ 24   On this evidence, a reasonable fact finder could have found

  undue influence and lack of capacity.3 Indeed, that was the

  conclusion reached by the division in Shimizu I. See No. 14CA2024,

  slip op. at 15 (concluding that “Szoke presented evidence from

  which different findings could have been made” by the probate

  court).

¶ 25   Because Szoke presented some “credible evidence” in support

  of her claims, her claims were not sanctionable as “groundless”

  under section 13-17-102. See W. United Realty, Inc. v. Isaacs, 679

  P.2d 1063, 1070 (Colo. 1984) (holding that although claim became


  3 That the probate court did not do so appears to have been based,
  in part, on Szoke’s inability to prove some type of collusion between
  the Recipients and the hospice staff. It should be noted, though,
  that although Szoke did not attempt to prove “collusion,” she did
  attempt to undermine the credibility of the hospice staff (the doctor,
  nurse, social worker, and notary). Szoke’s cross-examinations of
  the hospice doctor revealed that he was not directly involved in
  decedent’s day-to-day treatment and did not remember him, and
  that a patient’s mental capacity can vary throughout the day (i.e.,
  fluctuation in mental state can occur rapidly and unpredictably).
  Szoke’s cross-examination of other staff elicited evidence that,
  although they were eyewitnesses to the execution of the deed, they
  lacked clear memories of the signing and may not have thoroughly
  assessed decedent’s mental capacity. While the hospice staff did
  not appear to have participated in any foul play, Szoke’s evidence
  called into question the rigor with which staff monitored decedent’s
  mental capacity or protected him against possible undue influence
  of the Recipients.

                                    13
  less persuasive as litigation continued and ultimately proved

  unsuccessful, factual basis and attempts to extend the law did not

  call for award of attorney fees); Foley v. Phase One Dev. of Colo.,

  Inc., 775 P.2d 86, 88 (Colo. App. 1989) (stating that even though

  case was built on a “very thin [evidentiary] reed,” imposition of

  sanctions against the attorney “would create an intolerable tension”

  between section 13-17-102 and the lawyer’s professional

  responsibility to “‘zealously’ represent a client”); cf. City of Aurora,

  105 P.3d at 619 (“Courts must allow parties and their attorneys to

  reasonably rely on their experts without fear of punishment for

  errors in judgment made by those experts.”).

                            2.    Vexatiousness

¶ 26   An award of attorney fees under section 13-17-102 is also

  warranted if a party’s conduct is “substantially vexatious.” “An

  action is substantially vexatious if brought or maintained in bad

  faith to annoy or harass another, and vexatiousness includes

  conduct that is arbitrary, abusive, stubbornly litigious, or

  disrespectful of the truth.” In re Parental Responsibilities

  Concerning I.M., 2013 COA 107, ¶ 29.




                                      14
¶ 27   The trial court did not explicitly characterize Szoke’s action as

  “vexatious.” But that was the gist of its findings and conclusions.4

¶ 28   In its initial order, the court found the following:

           Szoke’s “evidence is manufactured, in that her experts

             never met the Decedent and appear to be unfamiliar with

             the normal business processes and routines for hospice

             staff and the medical realities of hospice patients. There

             is no evidence to support [Szoke’s] insinuation that

             somehow [four hospice staff members] were in collusion

             with [the Recipients.] The testimony of [decedent’s two

             friends who were uninterested in the outcome of the case]

             support the observations of the hospice employees as

             reflected in their written reports and in their testimony

             before this Court.”

           “[Szoke] had information available to her and many

             opportunities to inform herself of the facts as presented

             to this Court.”



  4 “To use a trite phrase, ‘A rose by any other name is still a rose.’”
  LaRosa v. LaRosa, No. Civ.A. 1:02MC9, 2004 WL 3807780, at *5
  (N.D. W. Va. Jan. 23, 2004) (unpublished opinion).

                                     15
 “[T]estimony from [a nurse practitioner at the hospice]

  and [an uninterested, good friend of decedent’s] indicates

  a private investigator was hired by [Szoke] regarding the

  circumstances of this case. [The friend] testified he told

  [Szoke] directly that [two of the Recipients] were good

  people and spoke with the investigators 4-5 times.

  [Szoke] had ample opportunity to inform herself of the

  facts, including the discovery process which included

  witness depositions. [She] was unable to secure

  witnesses who knew Decedent and the circumstances to

  support her position and resorted to the use of expert

  testimony based primarily on the review of hospice

  records and witness depositions. Rather than concede

  any position, [she] sought to amend her petition to

  included additional claims for civil theft, conversion, and

  a declaratory judgment based on these expert opinions.

  The Court finds, based on the number of witnesses who

  testified and not including the [Recipients] in this count,

  that [Szoke] had ample opportunity to determine the facts

  and the validity of her claims.”


                         16
¶ 29   Similarly, in the order setting the amount of the attorney fees

  award, the court found:

          “Based on the testimony and evidence submitted at trial

            and as found in its initial order, that [Szoke] made

            extensive efforts to determine the validity of her claim in

            this matter. Notwithstanding those efforts which as

            demonstrated at trial revealed facts that did not support

            her claim, she continued to prosecute her claims.

            [Szoke] did not accept [the Recipients’] statutory

            settlement offer.”

          The Recipients “are of modest means and two of them

            filed for bankruptcy during the pendency of these

            proceedings. [Szoke] was primarily represented by her

            husband, who is experienced litigation counsel and while

            [Szoke] incurred fees and costs, it does not appear her

            costs were as great as [the Recipients’] fees and costs, as

            [they] were required to hire counsel to represent them.”

          “Ultimately, the Court has found that [Szoke] prosecuted

            this case despite all facts leading to a conclusion that

            Decedent had legal and testamentary capacity and

                                   17
              disposed of his assets in the manner in which he

              intended.”

¶ 30   We have no basis for overturning the trial court’s ruling

  awarding fees. Under the applicable abuse of discretion standard of

  review, “we do not consider whether we would have reached a

  different result, but only whether the district court’s decision fell

  within the range of reasonable options.” Hudak v. Med. Lien Mgmt.,

  Inc., 2013 COA 83, ¶ 8.

¶ 31   In determining whether to assess section 13-17-102 attorney

  fees, a court is, by statute, required to consider various factors,

  including

              (a) The extent of any effort made to determine
              the validity of any action or claim before said
              action or claim was asserted;

              (b) The extent of any effort made after the
              commencement of an action to reduce the
              number of claims or defenses being asserted or
              to dismiss claims or defenses found not to be
              valid within an action;

              (c) The availability of facts to assist a party in
              determining the validity of a claim or defense;

              (d) The relative financial positions of the
              parties involved;




                                      18
             (e) Whether or not the action was prosecuted
             or defended, in whole or in part, in bad faith;

             (f) Whether or not issues of fact determinative
             of the validity of a party’s claim or defense
             were reasonably in conflict;

             (g) The extent to which the party prevailed with
             respect to the amount of and number of claims
             in controversy; [and]

             (h) The amount and conditions of any offer of
             judgment or settlement as related to the
             amount and conditions of the ultimate relief
             granted by the court.

  § 13-17-103(1), C.R.S. 2016.

¶ 32   Here, the court entered findings relating to all but one of these

  factors, i.e., whether the action was prosecuted in bad faith. The

  court found that Szoke made extensive efforts to investigate the

  case and was aware of on-the-scene facts from uninterested parties

  that undermined the validity of her claims; yet rather than reducing

  her claims, she tried to augment them. Also, she rejected a

  settlement offer, choosing instead to “manufacture” and prosecute a

  case relying on experts removed from the situation, against parties

  of “modest means” who did not have access to the legal resources

  she did.




                                    19
¶ 33   Under the circumstances, we cannot conclude that the court

  abused its discretion in awarding fees for conduct that was

  “stubbornly litigious, or disrespectful of the truth,” and, thus,

  “substantially vexatious.” See People v. Hoover, 165 P.3d 784, 802

  (Colo. App. 2006) (“[D]iscretion is abused only where no reasonable

  person would take the view adopted by the trial court. If reasonable

  persons could differ as to the propriety of the action taken by the

  trial court, then it cannot be said that the trial court abused its

  discretion.” (quoting State v. Heywood, 783 P.2d 890, 894 (Kan.

  1989))) (alteration in original).

                       III.   Appellate Attorney Fees

¶ 34   We reject the Recipients’ request under section 13-17-102 for

  an award of attorney fees incurred on appeal. Under section

  13-17-102, an award of fees on appeal is appropriate only in clear

  and unequivocal cases where no rational argument is presented

  and, thus, the appeal is frivolous. Wood Bros. Homes, Inc. v.

  Howard, 862 P.2d 925, 934-35 (Colo. 1993). Although Szoke did

  not prevail, we do not consider her contentions to be so lacking in

  substance as to be frivolous. See Front Range Home Enhancements,

  Inc. v. Stowell, 172 P.3d 973, 977 (Colo. App. 2007) (stating that


                                      20
  appellate attorney fees are awardable under section 13-17-102 only

  if the appeal itself is frivolous).

                               IV.      Conclusion

¶ 35    The probate court’s award of attorney fees is affirmed.

        JUDGE FURMAN and JUDGE HARRIS concur.




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