COLORADO COURT OF APPEALS                                         2016COA128


Court of Appeals No. 15CA0964
City and County of Denver District Court No. 09CV7321
Honorable Michael A. Martinez, Judge


Mark L. Thompson and Rosalin Rogers,

Plaintiffs-Appellants,

v.

United Securities Alliance, Inc.,

Defendant,

and concerning Catlin Insurance Company (UK) Ltd., Garnishee,

Appellee.


                             JUDGMENT AFFIRMED

                                  Division II
                          Opinion by JUDGE HARRIS
                              Ashby, J., concurs
                 Webb, J., concurs in part and dissents in part

                         Announced September 8, 2016


Sherman & Howard L.L.C., Christopher R. Mosley, Jennifer M. Morris, Denver,
Colorado, for Plaintiff-Appellant

Gordan & Rees LLP, John R. Mann, Denver, Colorado, for Appellee
¶1    Plaintiffs Mark L. Thompson and Rosalin Rogers obtained a

 judgment against United Securities Alliance, Inc., and then

 instituted garnishment proceedings against United’s insurer,

 defendant Catlin Insurance Company (UK) Ltd. The district court

 deducted from the policy limit the amount of attorney fees incurred

 by Catlin in defending the underlying arbitrations against United,

 and entered judgment for plaintiffs for the remainder of the policy.

¶2    On appeal, plaintiffs contend the district court erred in its

 determination of reasonable attorney fees and in declining to award

 pre- and post-judgment interest. Whether prejudgment interest can

 be awarded in a garnishment proceeding is an unresolved issue in

 Colorado. We affirm.

                            I.   Background

¶3    Catlin issued a liability insurance policy to United, covering

 claims that might arise from United’s business as a securities

 broker. The policy allows Catlin to deduct from the policy’s liability

 limit the “reasonable and necessary fees and costs incurred . . . in

 the defense of a Claim.”




                                   1
¶4    Plaintiffs received a damages award in an arbitration

 proceeding against United, which the district court confirmed. To

 collect on this judgment, plaintiffs then served a writ of

 garnishment action on Catlin as United’s insurer.

¶5    In an October 2010 order, the district court ordered Catlin to

 pay the damages award and found that Catlin could deduct “zero”

 defense fees and costs from the policy’s limits. According to the

 district court, the heavily redacted invoices submitted by Catlin

 failed to establish that the fees were “reasonable and necessary.”

¶6    On appeal, a division of this court affirmed the liability

 judgment, but remanded for the district court to determine the

 amount of expenses that Catlin had reasonably incurred in the

 arbitration, to deduct that amount from the $1 million policy limit,

 and to order Catlin to pay the plaintiffs, from the remaining policy

 limit, the amounts due under the judgment. Thompson v. Catlin

 Ins. Co. (UK) Ltd., slip op. at 14 (Colo. App. No. 10CA2554, Feb. 12,

 2012) (not published pursuant to C.A.R. 35(f)) (Thompson I).

¶7    On remand, the district court found that Catlin had

 reasonably incurred fees and costs but, faced with the same heavily


                                    2
 redacted invoices (which it found largely “indiscernible”), the court

 calculated Catlin’s expenses based on the amount of fees incurred

 by plaintiffs’ counsel in the underlying arbitration. Using this

 method, the court found that Catlin could deduct $320,000 in

 attorney fees from the policy limits.

¶8    Catlin again appealed. A division of this court reversed a

 second time, concluding that the district court’s order did not

 include sufficient findings of facts to support its determination.

 Thompson v. Catlin Ins. Co. (UK) Ltd., slip op. at 8 (Colo. App. No.

 13CA2037, Oct. 16, 2014) (not published pursuant to C.A.R. 35(f))

 (Thompson III).1

¶9    Before recalculating the reasonable amount of fees and costs

 on remand, the district court accepted additional briefing from the

 parties. This time, along with its briefing, Catlin provided the

 unredacted copies of the invoices for the two arbitrations, stating

 that it had finally located them from defense counsel “[a]fter an


 1 In Thompson v. Catlin Ins. Co. (UK) Ltd., (Colo. App. No. 11CA1330,
 Oct. 16, 2014) (not published pursuant to C.A.R. 35(f)) (Thompson
 II), Catlin appealed the trial court’s subsequent award of attorney
 fees to plaintiffs under C.R.C.P. 103, section (8)(b)(5). The fees at
 issue in Thompson II are unrelated to the attorney fees contested
 here.
                                    3
  exhaustive search.” Plaintiffs moved to strike the unredacted

  invoices as outside the scope of the mandate, and the court denied

  the motion.

¶ 10   In a thorough and carefully reasoned opinion, the district

  court relied on record evidence, including the unredacted invoices,

  to calculate Catlin’s reasonable attorney fees and costs, making

  specific deductions for redundant entries, excessive hours, and

  other discretionary factors. The court found $452,107.15 of

  Catlin’s requested $545,136.27 reasonable and necessary and

  deducted this amount from the policy limit. After subtracting

  amounts Catlin had previously paid plaintiffs, the court ordered

  Catlin to pay $96,287.68. It denied plaintiffs’ requests for pre- and

  post-judgment interest.

¶ 11   On appeal, plaintiffs contend that the district court acted

  beyond the scope of the mandate in Thompson III by considering the

  unredacted invoices, and that it erred in denying interest to which

  they are statutorily entitled.




                                    4
                       II.     Unredacted Invoices

¶ 12   Plaintiffs contend that the district court acted beyond the

  scope of the Thompson III mandate because, by considering the

  unredacted invoices, the district court expressly disregarded the

  mandate’s instruction to review “the existing record.” In light of the

  unusual circumstances of this case, we disagree.

¶ 13   Trial courts have no discretion to disregard binding appellate

  rulings. Consequently, we review de novo whether a trial court has

  complied with a prior appellate ruling. City Council of City of Cherry

  Hills Vill. v. S. Suburban Park & Recreation Dist., 219 P.3d 421, 423

  (Colo. App. 2009).

¶ 14   When determining the meaning of a remand order, we

  consider the disposition and context of the entire opinion. See In re

  Marriage of Balanson, 107 P.3d 1037, 1044 (Colo. App. 2004)

  (interpreting remand order “in the context of the entire opinion”); In

  re Marriage of Ashlock, 663 P.2d 1060, 1062 (Colo. App. 1983) (“The

  meaning of a remand is to be determined from the reviewing court’s

  disposition of the issues before it.”).




                                      5
¶ 15    We acknowledge that, in most cases, an instruction to the

  district court to “review the existing record,” and to make a

  determination “from this record,” would amount to an order

  prohibiting the district court from considering additional evidence.

  But given the unusual procedural posture of this case, we construe

  the language as permissive rather than restrictive — in our view,

  the remand order meant that the district court could rely exclusively

  on the existing record to calculate reasonable fees, not that it had

  to.

¶ 16    The division’s opinion in Thompson III was the second reversal

  of the district court’s attorney fees order. Twice the district court

  had essentially disregarded the redacted invoices, complaining that

  it was impossible to determine the reasonableness of the fees and

  costs from those invoices.

¶ 17    The division in Thompson I, No. 10CA2554, slip op. at 12,

  noted that the redacted invoices “amply demonstrate[d]” that the

  expenses were incurred and that at least some were incurred for

  legitimate reasons. It remanded the case to the district court to




                                     6
  calculate Catlin’s reasonable fees, but did not expressly restrict or

  authorize the consideration of additional evidence.

¶ 18   On remand, Catlin continued to rely on the redacted invoices

  — though, had it presented the unredacted invoices then, the

  remand order would not have precluded the court’s consideration of

  them, see In re Marriage of Ashlock, 663 P.2d at 1062 (where

  reviewing court does not include in its mandate a direction

  concerning additional proceedings, it is within the trial court’s

  discretion to receive additional evidence) — and the court continued

  to declare them unhelpful in evaluating Catlin’s fee request.

  Consequently, as it had the first time, the district court chose an

  alternative methodology to compute Catlin’s expenses. Instead of

  analyzing the unredacted entries on the invoices, the district court

  imputed to Catlin the same amount of fees claimed by plaintiffs’

  lawyers for their services in connection with the arbitration.

¶ 19   On appeal for the second time, the Thompson III division

  acknowledged the district court’s struggle to decipher the largely

  “indiscernible” invoices, but nonetheless directed the court to

  provide more specific reasoning to support its fee determination,


                                     7
  suggesting that it start with the invoices in the record. The division

  then laid out the precise analytical path for the district court: after

  determining the lodestar amount, the court could deduct any hours

  not reasonably expended, including hours that were not sufficiently

  documented in the redacted invoices. Next, the district court was

  told to adjust the lodestar amount after considering six factors

  relevant to the litigation. The division warned the district court not

  to cut corners in its analysis by reverting to its earlier method of

  comparison with opposing counsel’s request or by “eyeball[ing]” the

  fee request and cutting it by some arbitrary percentage. Thompson

  III, No. 13CA2037, slip op. at 13-14.

¶ 20   After providing this guidance, the division directed the district

  court to “make a more specific determination of the reasonable

  costs and fees that Catlin may deduct.” Id. at 14. To accomplish

  this task, the division instructed the district court to review the

  existing record, calculate the expenses Catlin had incurred, identify

  any factors used in making the calculations, and then deduct that

  amount from the policy limit and order Catlin to pay plaintiffs the

  amount owed under the judgment.


                                     8
¶ 21   In our view, having outlined the requisite procedure, the

  division’s reference to the “existing record,” id. at 15, was merely a

  way to reassure the district court that it need not start from scratch

  but could instead perform the necessary factfinding and

  calculations based on the indisputably less-than-ideal evidence in

  the record. We do not interpret the order to preclude the district

  court’s reliance on better information, if such information became

  available on remand. Cf. Moland v. People, 757 P.2d 137, 141 (Colo.

  1988) (remand order instructing that defendant had present need

  for postconviction relief and ordering district court to resolve motion

  on the merits did not preclude district court’s subsequent

  determination, based on consideration of new facts, that defendant

  did not have present need for relief). After all, the first division, in

  Thompson I, had not limited the court’s ability to consider

  additional evidence. It is not clear from the second remand order

  why the Thompson III court would have changed course and

  required the district court to ignore the unredacted invoices.

¶ 22   Our interpretation of the remand order also gives effect to

  evidentiary rules that favor consideration of all relevant evidence,


                                      9
  see CRE 402, with the goal of promoting the “truth-seeking

  purposes of our judicial system,” Garrigan v. Bowen, 243 P.3d 231,

  238 (Colo. 2010). Over the course of this protracted litigation, two

  divisions of this court have remanded to the district court to make a

  specific, record-based calculation of the reasonable amount of

  attorney fees Catlin could deduct from the policy limit. But an

  accurate determination has been hampered by the redactions to the

  invoices. Now that the unredacted invoices have been recovered, we

  are reluctant, absent some explanation from the division, to read

  the remand order to limit the district court’s wide discretion to

  consider this superior evidence in making the required calculations.

¶ 23   The dissent suggests that we have placed too much emphasis

  on the truth-seeking function of the court, reminding us that each

  day trial courts properly exclude evidence. That is undoubtedly

  true, but only when some greater interest outweighs the benefit of

  admitting all of the information that will help the district court to

  arrive at a reasoned and thorough decision. We agree with the

  dissent that adherence to remand orders is necessary to ensure

  finality. But because we do not read the Thompson III remand order


                                     10
  to prohibit the district court’s consideration of the unredacted

  invoices, we do not perceive adherence to the order as an interest

  that outweighs (or is even in competition with) the obvious benefit

  of the complete invoices.

¶ 24   Nor do we perceive any manifest unfairness to the plaintiffs

  that might outweigh the interest in admitting the unredacted

  invoices. The plaintiffs did not assert, and the district court did not

  find, that the delay in producing the unredacted invoices stemmed

  from Catlin’s bad faith or even an attempt to gain some strategic

  advantage in the litigation. Rather, the district court accepted

  Catlin’s explanation that unredacted versions of the invoices were

  discovered only “after an exhaustive search,” and then were

  produced promptly. We are in no position to second-guess the

  district court on this finding of fact. See In re Estate of Ramstetter,

  2016 COA 81, ¶ 52.

¶ 25   The dissent says we give short shrift to the fairness issue, but

  we are unwilling to press an argument that the plaintiffs themselves

  never made in the district court or on appeal. In the district court,

  the plaintiffs complained that reliance on the unredacted invoices


                                     11
  violated the remand order, not that admission of the invoices gave

  Catlin some unfair advantage or, as the dissent puts it, an

  impermissible “second bite at the apple.” Even on appeal, plaintiffs

  did not protest the unfairness of the court’s reliance on the

  unredacted invoices; they contended that the district court should

  have given them an opportunity to challenge those invoices at a

  second hearing. It was not until oral argument that plaintiffs first

  invoked fairness, suggesting that Catlin’s belated filing of the

  unredacted invoices should have been precluded as the product of

  strategic gamesmanship. We would find the argument more

  persuasive if it were raised in the district court and supported by

  evidence in the record but, as counsel conceded at oral argument,

  the record is devoid of such evidence.

¶ 26   As for plaintiffs’ argument that they did not have an

  opportunity to challenge the unredacted invoices, we perceive no

  error. Plaintiffs contend that the district court should have

  authorized additional discovery and held a second hearing on the

  unredacted invoices. But plaintiffs never asked for a hearing or for

  leave to reopen discovery; they merely asked the district court to


                                    12
  strike the invoices from the record on the ground that their

  admission violated the court of appeals’ mandate. Because

  plaintiffs never asked for this relief, we cannot say that the district

  court erred in failing to sua sponte reopen the proceedings. Zeke

  Coffee, Inc. v. Pappas-Alstad P’ship, 2015 COA 104, ¶ 36 (“[A] court

  ordinarily ‘will not sua sponte afford a party relief that it has not

  requested.’” (quoting Planned Parenthood of Ind. & Ky., Inc. v.

  Comm’r, Ind. Dep’t of Health, 64 F. Supp. 3d 1235, 1257 n.7 (S.D.

  Ind. 2014))).

¶ 27   Accordingly, we conclude that the district court did not err in

  considering the unredacted invoices.

                     III.     Prejudgment Interest

¶ 28   Plaintiffs next contend that the district court erred in declining

  to award prejudgment interest pursuant to section 5-12-102(1),

  C.R.S. 2015. We disagree.

¶ 29   Because prejudgment interest is a question of statutory

  interpretation, we review it de novo. Goodyear Tire & Rubber Co. v.

  Holmes, 193 P.3d 821, 825 (Colo. 2008).




                                     13
¶ 30   Section 5-12-102(1)(a) provides for the award of prejudgment

  interest “[w]hen money or property has been wrongfully withheld

  . . . from the date of wrongful withholding to the date of payment or

  to the date judgment is entered.” This statute, however, does not

  apply to garnishment proceedings; rather, it governs contract and

  property damage cases. See Beren v. Beren, 2015 CO 29, ¶ 45

  (Section 15-12-102 did not apply because “this case is not a

  contract or property damage case; it is a probate case.”).2

¶ 31   Further, we agree with the district court that, because

  garnishment actions do not result in damages to the garnishor,

  prejudgment interest is not appropriate. Prejudgment interest is a

  component of compensatory damages, meant to make the plaintiff

  whole and fully compensate for the loss. Seaward Constr. Co. v.

  2 We recognize that some cases have applied section 5-12-102(1) in
  equitable actions, but we find those cases inapplicable. For
  example, in Safeco Insurance Co. v. Westport Insurance Corp., 214
  P.3d 1078, 1080 (Colo. App. 2009), a division of this court
  determined that a plaintiff could collect prejudgment interest in a
  contribution action. However, interest was appropriate in that case
  because the purpose of contribution is to prevent unjust
  enrichment and “the unjustly enriched party is generally liable for
  interest on the benefits received.” Id. (quoting Martinez v. Cont’l
  Enters., 730 P.2d 308, 317 (Colo. 1986)). In contrast, a garnishee is
  not unjustly enriched because it possesses assets of a third-party
  debtor.
                                    14
  Bradley, 817 P.2d 971, 978 (Colo. 1991); Watson v. Pub. Serv. Co. of

  Colo., 207 P.3d 860, 867 (Colo. App. 2008). Absent an express

  indication of legislative intent to deviate from the principle that

  prejudgment interest is compensatory, it may be awarded only on

  compensatory damages. Seaward Constr. Co., 817 P.2d at 978;

  Watson, 207 P.3d at 867. A garnishment proceeding, however, is

  not a “suit involving money damages”; rather it is an ancillary

  proceeding to enforce a judgment. Commercial Claims, Ltd. v. First

  Nat’l Bank of Glenwood Springs, 649 P.2d 736, 736 (Colo. App.

  1982) (citation omitted). Accordingly, because compensatory

  damages are not awarded in garnishment proceedings, prejudgment

  interest is not appropriate.

¶ 32   Moreover, a plaintiff is only entitled to prejudgment interest

  where there has been a wrongful withholding. “Our case law

  clarifies that, as a precondition to a wrongful withholding, there

  must be a party who has acted wrongfully in the legal sense, e.g., a

  party has breached a contract.” Beren, ¶ 45. Catlin neither

  breached a contract with plaintiffs nor damaged physical property,

  see id., and no court has determined Catlin’s conduct to be


                                     15
  wrongful. Garnishment actions do not determine liability in the

  sense of a legal wrong — they simply reach assets of a judgment

  debtor in the hands of third parties. § 13-54.5-103, C.R.S. 2015;

  C.R.C.P. 103; Idaho Pac. Lumber Co., Inc. v. Celestial Land Co. Ltd.,

  2013 COA 136, ¶ 8. Before the garnishment action, Catlin had no

  legal duties to plaintiffs, and thus the proceeds of the insurance

  policy cannot have been wrongfully withheld. See Mesa Sand &

  Gravel Co. v. Landfill, Inc., 776 P.2d 362, 364-65 (Colo. 1989)

  (collecting cases).

                        IV.   Postjudgment Interest

¶ 33   Finally, plaintiffs contend that an award of postjudgment

  interest was mandatory under section 5-12-106(1)(b), and the

  district court erred by denying their request. We disagree.

¶ 34   When a judgment is appealed by a judgment-debtor, section 5-

  12-106(1)(b) provides for an award of postjudgment interest from

  the date judgment was first entered in the trial court if “the

  judgment is modified or reversed with a direction that a judgment

  for money be entered in the trial court.”




                                    16
¶ 35   However, under C.A.R. 37(b), “[i]f all or part of a judgment is

  . . . modified, [or] reversed[] . . . with a direction that a money

  judgment be entered in the lower court, the mandate must contain

  instructions with respect to allowance of interest.” This rule

  provides the appellate courts with exclusive authority to determine

  the propriety of an award of postjudgment interest. In re Marriage

  of Gutfreund & Hughes, 148 P.3d 136, 142 (Colo. 2006). As a

  result, “if the mandate does not contain instructions regarding the

  award of postjudgment interest from some date prior to the entry of

  the judgment on remand, the trial court lacks jurisdiction to award

  such interest.” Westec Constr. Mgmt. Co. v. Postle Enters. I, Inc., 68

  P.3d 529, 535 (Colo. App. 2002).

¶ 36   Accordingly, because the Thompson III mandate did not direct

  the district court to award postjudgment interest, the district court

  correctly held that it lacked jurisdiction to make such an award.

  See id.; Sperry v. Field, 186 P.3d 133, 141 (Colo. App. 2008). The

  only way to invest the district court with the necessary jurisdiction

  is to file a request with the court of appeals to amend its mandate.

  Westec Constr., 68 P.3d at 535; Boryla v. Pash, 17 P.3d 833, 835


                                      17
  (Colo. App. 2000). But plaintiffs did not request this relief. And

  because the district court had no jurisdiction to award interest, we

  need not decide whether postjudgment interest would have been

  proper under section 5-12-106(1)(b). Boryla, 17 P.3d at 834-35; see

  also Pet Inc. v. Goldberg, 37 Colo. App. 257, 259, 547 P.3d 943, 945

  (1975) (if a mandate issues that fails to direct the trial court with

  respect to the award of interest, or even if it contains an erroneous

  direction upon the subject, a trial court lacks jurisdiction to grant

  an award of interest inconsistent with the appellate court’s

  mandate).

¶ 37   We are not persuaded by plaintiffs’ argument that this reading

  of Rule 37 would create an impermissible conflict with section 5-12-

  106(1)(b). Rather, the statute merely “states the circumstances

  wherein interest shall be allowed to a creditor or on a judgment,

  [while] C.A.R. 37 requires and empowers the appellate court to

  make the determination of interest to be allowed, if any,” and to

  include appropriate instructions in its mandate. Pet Inc., 37 Colo.

  App. at 259, 547 P.2d at 944-45. Thus, we perceive no conflict.




                                     18
                           V.      Conclusion

¶ 38   The judgment is affirmed. In their briefs, plaintiffs requested

  attorney fees pursuant to either C.A.R. 39.5 (now renumbered as

  C.A.R. 39.1) or C.R.C.P. 103, section 8(b)(5). In light of our opinion,

  we decline to award attorney fees on either basis.3

       JUDGE ASHBY concurs.

       JUDGE WEBB concurs in part and dissents in part.




  3 Catlin filed a motion to strike plaintiffs’ request for attorney fees,
  noting that they did not raise the C.R.C.P. 103, section 8(b)(5) basis
  in their opening brief. Since we decline to award attorney fees, this
  motion is denied as moot.
                                     19
       JUDGE WEBB, concurring in part and dissenting in part.

¶ 39   I concur in all but Part II of the majority opinion. There, the

  majority concludes that on remand the district court properly

  allowed Catlin to supplement the record by replacing numerous

  previously redacted invoices with unredacted versions. But in

  doing so, the district court departed from plain language of the

  mandate in Thompson v. Catlin Insurance Co. (UK) Ltd., (Colo. App.

  No. 13CA2037, Oct. 16, 2014) (not published pursuant to C.A.R.

  35(f)) (Thompson III). Therefore, and with respect, I dissent.

¶ 40   Everyone would agree that on remand a district court must

  follow the mandate of an appellate court. See, e.g., City Council of

  City of Cherry Hills Vill. v. S. Suburban Park & Recreation Dist., 219

  P.3d 421, 423 (Colo. App. 2009). The majority recognizes, as do all

  those who appeared before us, that the remand instruction in

  Thompson III directed the district court to “review the existing

  record, and from this record, calculate the amount of expenses that

  Catlin reasonably incurred” in the underlying arbitrations.

  Thompson III, No. 13CA2037, slip op. at 15. This language is clear.

  And because it is clear, I decline to join the majority in wondering


                                    20
  “why the Thompson III court would have changed course and

  required the district court to ignore the unredacted invoices.”

¶ 41   Yet, instead of following the plain meaning of this clear

  language, the majority dismisses it as “merely a way to reassure the

  district court that it need not start from scratch but could instead

  perform the necessary factfinding and calculations based on the

  indisputably less-than-ideal evidence in the record.” But what

  more could the mandate have said? Must a mandate say not only

  what the district court shall do — “from the existing record” — but

  also what the court may not do — “without taking additional

  evidence?” Surely not, as additional language is not necessary if

  the meaning is otherwise clear. BMD Contractors, Inc. v. Fid. &

  Deposit Co. of Md., 679 F.3d 643, 650 (7th Cir. 2012). And therein

  lies the problem with the majority’s reliance on the lack of “some

  explanation from the division.”

¶ 42   One might well ask whether this case — now in its fourth

  appeal — cries out for a final resolution. It does. But that outcry

  cannot license appellate disregard of yet another error.




                                    21
¶ 43   To begin, the majority notes, “we consider the disposition and

  context of the entire opinion,” citing In re Marriage of Ashlock, 663

  P.2d 1060, 1062 (Colo. App. 1983). But this principle only frames,

  it does not decide, the question of how the Thompson III mandate

  should be read. And unlike the direction in the mandate here —

  “review the existing record” — the Ashlock division pointed out that

  “the reviewing court [did] not include in its mandate a direction

  concerning additional proceedings.” Id.

¶ 44   Taking up how to read the mandate, I, too, view the remand

  instructions through the prism of the entire opinion. This broad

  perspective does not show us anything in Thompson III that even

  hints at an opportunity to present additional evidence on remand.

  To the contrary, the division said that the district court had already

  “reviewed all the evidence.” Thompson III, No. 13CA2037, slip op. at

  14. Given this statement, one might wonder why the district court

  considered more — but not “newly discovered,” as Catlin conceded

  at oral argument — evidence than it already had.

¶ 45   The division observed that while the district court had

  identified testimony of Catlin’s counsel in the underlying arbitration


                                    22
  “as supporting the basis for the award,” the court had “not

  connect[ed] her testimony to the $160,000 amount awarded in each

  arbitration.” Id. at 10. Of course, this testimony was in the record.

¶ 46   Next, the division noted that a remand for further findings was

  necessary because the district court’s “order does not specify

  whether the court used the lodestar amount as a starting point

  before reducing the fee. We also do not know if the court

  considered whether Thompson’s counsel requested $160,000 as a

  lodestar amount or as a contingency fee.” Id. And this testimony

  was also in the record.

¶ 47   Then the division summarized the familiar lodestar

  methodology — including the factors used to adjust the lodestar up

  or down1 — and directed the district court to “make a more specific

  determination of the reasonable costs and fees that Catlin may

  deduct.” Id. at 14. But the division did not suggest that applying

  1 “Factors that the district court may consider include: (1) the
  amount in controversy; (2) the time required to represent the client
  effectively; (3) the complexity of the case; (4) the value of the legal
  services to the client; (5) the existence of a fee arrangement,
  whether fixed or contingent; and (6) the customary practice in the
  legal community regarding fees in similar actions.” Thompson v.
  Catlin Insurance Co. (UK) Ltd., slip op. at 12 (Colo. App. No.
  13CA2037, Oct. 16, 2014) (not published pursuant to C.A.R. 35(f)).
                                     23
  those factors would require the court to look beyond the “existing

  record,” such as moving from the redacted invoices to their now

  conveniently available unredacted counterparts.

¶ 48   Considering the division’s reference to evidence already in the

  record and its lack of reference to new evidence, by any fair reading

  the problem in Thompson III was insufficient explanation, not a lack

  of evidence. Thus, on remand, the division’s concerns over

  inadequate findings should have been resolved with further

  scrutiny of the invoices already in the record — both redacted and

  unredacted — as well as of the testimony given by arbitration

  counsel for both parties in the attorney fees hearing.

¶ 49   Then the district court could have provided the additional

  explanation that the division sought. And the district court could

  still have concluded — as it had concluded once before — that gaps

  created by the extensive redactions on many invoices left plaintiffs’

  fees of $160,000 in each of the arbitrations as the most reliable

  measure of reasonableness. After all, as the division also held, “no

  language in Thompson I specifically instructed the district court to

  use the lodestar method.” Id. at 6.


                                    24
¶ 50   The majority’s stated deference to “the truth-seeking purposes

  of our judicial system,” Garrigan v. Bowen, 243 P.3d 231, 238 (Colo.

  2010), does not tip the scales in favor of admitting the unredacted

  invoices, for three reasons.

¶ 51   First, the issue before us is not an evidentiary ruling, in which

  district courts enjoy considerable discretion. See, e.g., People v.

  Helms, 2016 COA 90, ¶ 45 (We review “evidentiary rulings for an

  abuse of discretion.”). Instead, the issue is whether the district

  court adhered to the plain language of the mandate. And the

  mandate rule is just that: a rule, not a discretionary option.

¶ 52   Second, every ruling excluding evidence on procedural

  grounds compromises truth seeking. See People v. Shreck, 22 P.3d

  68, 76 (Colo. 2001). Yes, as the majority points out, “all of the

  information . . . will help the district court to arrive at a reasoned

  and thorough decision.” Even so, district courts routinely exclude

  evidence on procedural grounds, at least where — as here — the

  countervailing interest is not constitutional. See People v.

  Pronovost, 773 P.2d 555, 558 (Colo. 1989).




                                     25
¶ 53   Third, and to me most important, in many remands and with

  the invariably perfect wisdom of hindsight, creative counsel can

  identify additional evidence — available, as here, but not presented

  before the appeal — that might tilt the playing field toward a more

  favorable outcome on remand. But creativity does not beget

  unbridled opportunity. Our supreme court has been reluctant to

  allow any party “a second bite at the apple.” People v. Null, 233

  P.3d 670, 681 (Colo. 2010) (quoting Burks v. United States, 437 U.S.

  1, 17 (1978)). As well, allowing counsel to do so would protract

  remand proceedings and imperil finality. See In re Marriage of

  Wolford, 789 P.2d 459 (Colo. App. 1989) (noting that a definite

  public interest exists in assuring the finality of civil judgments).

¶ 54   Finally, and to no one’s surprise, I take issue with the

  majority’s inability to “perceive any manifest unfairness to the

  plaintiffs that might outweigh the interest in admitting the

  unredacted invoices.” A close look shows that the unfairness stems

  from allowing Catlin to escape the strategic decision that it made —

  long ago and presumably for good reason — to rest its fees claim on

  the many redacted invoices from which the district court found it


                                     26
  “impossible to determine in any manner the activities performed

  with respect to those entries.” Catlin neither suggests that the

  unredacted invoices are “newly discovered” evidence, nor does it

  offer any reason why it should be allowed to escape that choice on

  remand. And for these reasons, I do not see why the burden should

  be shifted to plaintiffs — as the majority does — to show an

  insufficient “opportunity to challenge those invoices at a second

  hearing.” The majority does not cite authority — nor am I aware of

  any — softening the binding effect of remand instructions by

  engrafting lack of prejudice on to the analysis.

¶ 55   In the end, I would reverse in part because the district court

  departed from the mandate in Thompson III and again direct the

  court to reconsider the attorney fees issue solely on the basis of the

  invoices and other information in the record when the mandate

  issued.




                                    27
