COLORADO COURT OF APPEALS                                       2017COA53


Court of Appeals No. 15CA1557
Jefferson County District Court No. 13PR534
Honorable Lily W. Oeffler, Judge


In re the Estate of Arlen E. Owens, deceased.

David Owens,

Petitioner-Appellee,

v.

Angela Dominguez,

Respondent-Appellant.


                           JUDGMENTS AFFIRMED

                                   Division I
                         Opinion by JUDGE TAUBMAN
                        Graham and Navarro, JJ., concur

                           Announced April 20, 2017


Craig Wagner Law Firm, Craig E. Wagner, Denver, Colorado, for Petitioner-
Appellee

Azizpour Donnelly, LLC, Katayoun A. Donnelly, Denver, Colorado, for
Respondent-Appellant
¶1    Appellant, Angela Dominguez, appeals the district court’s

 judgment granting the petitions of appellee, David Owens, for

 determination of testacy and to set aside nonprobate transfers.

 Dominguez also appeals a subsequent district court judgment

 holding her in contempt. We affirm.

                           I.   Background

¶2    After he was discharged from a recovery center for health

 issues, Dr. Arlen E. Owens (the decedent) hired Dominguez as his

 private caregiver in 2010. The decedent was diagnosed with

 “memory impairment” upon his release and returned home despite

 medical advice to move to assisted living. The decedent died in July

 2013.

¶3    After the decedent’s death, his brother and only living heir,

 Owens, filed a petition for informal probate of the decedent’s will

 and informal appointment of personal representative. He was then

 appointed the personal representative of the estate. In March 2014,

 Owens filed a petition for determination of testacy and for

 determination of heirs, alleging that the will that the decedent had

 signed in July 2012 was the product of undue influence by

 Dominguez and that the decedent had lacked the capacity to


                                   1
 execute the will. Owens also filed a complaint for recovery of estate

 assets and asked that the court invalidate the will and order that

 the decedent’s estate be administered under intestate distribution

 statutes.

¶4    In March 2015, Owens filed a petition to set aside nonprobate

 transfers. He contended that payable-on-death (POD) designations

 on three accounts, executed by the decedent with Dominguez as the

 beneficiary, should be set aside on the ground that Dominguez had

 exerted undue influence on the decedent, who had lacked the

 capacity to execute the POD designations. In response, Dominguez

 filed a motion to dismiss the petition to set aside the POD

 designations for lack of jurisdiction, arguing that the POD

 designations were nonprobate transfers not governed by the probate

 code. The district court denied Dominguez’s motion.

¶5    At the request of Owens and over Dominguez’s jurisdictional

 objections, the district court imposed a constructive trust over the

 three POD accounts at issue. Then in July 2015, the court held an

 evidentiary hearing on the issues of testamentary capacity and

 undue influence. Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009).

 In a written order, the court found that the decedent had not had


                                   2
 the capacity to execute the POD designations and had been unduly

 influenced by Dominguez. However, it found that the decedent had

 had the testamentary capacity to execute his will and had not been

 unduly influenced by Dominguez in signing his will.

¶6    After the court issued its final judgment, it issued a contempt

 order against Dominguez for violation of the constructive trust as it

 related to $140,000 from the State Farm Bank account. Dominguez

 objected on the grounds that the court did not have jurisdiction to

 impose the constructive trust. The court sentenced her to six

 months in county jail, with the condition that she could purge the

 contempt by making $50,000 monthly payments until she paid

 $140,000.

                           II.   Standing

¶7    Dominguez contends that the district court did not have

 jurisdiction to set aside the POD designations and impose a

 constructive trust on the POD accounts because Owens and the

 estate did not have standing to make such requests. Owens

 responds that Dominguez cannot raise her standing claims on

 appeal, and that her standing claims do not relate to the court’s

 authority in this case. We conclude that Dominguez can raise her


                                   3
  standing claims on appeal based on the holding of In re Estate of

  Murphy, 195 P.3d 1147, 1150-51 (Colo. App. 2008).

                         A.        Standard of Review

¶8     “[S]tanding is a jurisdictional prerequisite to every case and

  may be raised at any stage of the proceedings, including on appeal.”

  HealthONE v. Rodriguez, 50 P.3d 879, 891 n.5 (Colo. 2002). We

  review issues of standing de novo. Ainscough v. Owens, 90 P.3d

  851, 856 (Colo. 2004).

¶9     Owens argues that Dominguez never raised the issue of

  standing in the district court and never disputed that he had a

  legally protected right to pursue a correct probate determination of

  his brother’s estate. He asserts that as a result, Dominguez has not

  preserved this issue for appeal and that we may not review it.

  However, “lack of standing is a jurisdictional issue and may be

  raised at any time.” Peters v. Smuggler-Durant Mining Corp., 910

  P.2d 34, 38 (Colo. App. 1995), aff’d, 930 P.2d 575 (Colo. 1997).

                              B.    Applicable Law

¶ 10   “The question of standing involves a consideration of whether

  a plaintiff has asserted a legal basis on which a claim for relief can

  be predicated.” Bd. of Cty. Comm’rs v. Bowen/Edwards Assocs.,


                                         4
  Inc., 830 P.2d 1045, 1052 (Colo. 1992). To establish standing, a

  plaintiff must demonstrate that (1) he or she was injured in fact and

  (2) the injury was to a legally protected interest. See Hickenlooper v.

  Freedom from Religion Found., Inc., 2014 CO 77, ¶ 18, 338 P.3d

  1002, 1006; Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d

  535, 539 (1977).

¶ 11   Under Colorado law, a POD designation is defined as follows:

            [T]he designation of (i) a beneficiary in an
            account payable on request to one party
            during the party’s lifetime and on the party’s
            death to one or more beneficiaries, or to one or
            more parties during their lifetimes and on
            death of all of them to one or more
            beneficiaries, or (ii) a beneficiary in an account
            in the name of one or more parties as trustee
            for one or more beneficiaries if the relationship
            is established by the terms of the account and
            there is no subject of the trust other than the
            sums on deposit in the account, whether or
            not payment to the beneficiary is mentioned.

  § 15-15-201(8), C.R.S. 2016. In Colorado, POD accounts are not

  considered a part of the probate estate, although the probate code

  does permit POD designations. See id. (defining “POD

  designation”); see also § 15-15-203, C.R.S. 2016 (authorizing POD

  accounts); § 15-15-212(2), C.R.S. 2016 (explaining rights on death

  concerning POD accounts).


                                     5
¶ 12   A district court sitting in a probate matter has the same

  jurisdiction as the Denver Probate Court. In re Estate of Lembach,

  622 P.2d 606, 607 (Colo. App. 1980). Probate courts, and by

  extension, district courts sitting in probate, have broad jurisdiction

  “to determine every legal and equitable question arising in

  connection with decedents’ . . . estates, so far as the question

  concerns any person who is before the court by reason of any

  asserted right in any of the property of the estate.” In re Estate of

  Murphy, 195 P.3d at 1151 (emphasis added) (quoting § 13-9-

  103(3)(a), C.R.S. 2016). Such courts also have jurisdiction

             [i]n any case in which a district court could
             grant such relief in a separate action brought
             therein, to impose or raise a trust with respect
             to any of the property of the decedent or any
             property in the name of the decedent,
             individually or in any other capacity, in any
             case in which the demand for such relief arises
             in connection with the administration of the
             estate of a decedent[.]

  § 13-9-103(3)(b) (emphasis added).

¶ 13   The Murphy division held that, based on the language of

  section 13-9-103(3)(a) and (b), “the phrase ‘in connection with’ [was]

  a grant of authority to resolve disputes logically relating to the

  estate,” and it found that resolving the question regarding the joint


                                     6
  tenancy property at issue there — not considered part of a probate

  estate — was “essential to the proper and orderly distribution of

  estate property.” In re Estate of Murphy, 195 P.3d at 1151-52

  (citations omitted); see also § 15-10-302(2), C.R.S. 2016 (The

  probate court “has full power to make orders . . . necessary and

  proper to administer justice in the matters which come before it.”).

  Thus, a district court’s jurisdiction — and its authority to impose

  restrictions on nonprobate assets — may extend even to property

  claimed by the estate that may ultimately not belong to the estate.

  See In re Estate of Lembach, 622 P.2d at 608.

                              C.   Analysis

¶ 14   Consequently, the Denver Probate Court — and, as interpreted

  in Lembach, a district court — has jurisdiction to determine every

  legal and equitable question arising in connection with an estate,

  when any person comes before the court with any asserted right in

  the property of the estate. In re Estate of Murphy, 195 P.3d at

  1151-52. The court has the power to resolve such questions that

  are “essential to the proper and orderly distribution of estate

  property.” Id. at 1152 (citing § 15-10-302(2)). Thus, the governing

  statutes and case law indicate that the district court has broad


                                    7
  jurisdiction over any probate and nonprobate matters that are

  essential to proper administration of an estate.

¶ 15   In this case, resolving the issues surrounding the POD

  designations was essential to the proper and orderly administration

  of the decedent’s estate. Because the money subject to the POD

  transfers would otherwise be a part of the decedent’s estate, the

  court was required to determine whether Owens’ allegations of

  undue influence and lack of testamentary capacity were true.

  Owens petitioned to determine testacy and heirs, to recover estate

  assets, and to set aside the POD designations. As relevant here, he

  alleged that Dominguez had asserted undue influence over the

  decedent and that the decedent had lacked the testamentary

  capacity to designate Dominguez as the beneficiary of the POD

  accounts. Thus, Owens’ claims regarding the POD designations

  were legal and equitable questions that arose in connection with the

  estate.

¶ 16   We conclude that the reasoning in In re Estate of Murphy

  concerning joint tenancy real property applies equally to an heir’s

  potential interest in accounts with POD designations. Thus, we

  conclude that the court had jurisdiction to impose a constructive


                                    8
  trust on the three POD accounts. See id. at 1151-52; see also

  Mitchem v. First Interstate Bank of Denver, N.A., 802 P.2d 1141,

  1142 (Colo. App. 1990) (“The power to determine whether to impose

  a constructive trust is a matter within the purview of the probate

  court.”); In re Estate of Lembach, 622 P.2d at 608.

¶ 17   Therefore, following the reasoning in Murphy, we conclude that

  Owens had standing in this matter and the district court had

  jurisdiction to impose a constructive trust and review his claims.

             III.   Mental Capacity and Undue Influence

¶ 18   Dominguez next asserts that the district court erred when it

  determined that the decedent had not had the testamentary

  capacity to designate Dominguez as beneficiary of the POD

  accounts and that Dominguez had unduly influenced the decedent

  to designate her as beneficiary of the three accounts. We disagree.

                            A.   Standard of Review

¶ 19   Claims regarding the sufficiency of the evidence are mixed

  questions of law and fact. “‘Where there is a mixed question of law

  and fact, the reviewing court will give deference to the trial court’s

  factual findings, absent an abuse of discretion,’ but will

  independently review questions of law.” Sheridan Redevelopment


                                     9
  Agency v. Knightsbridge Land Co., 166 P.3d 259, 262 (Colo. App.

  2007) (quoting Sanger v. Dennis, 148 P.3d 404, 410 (Colo. App.

  2006)).

¶ 20   Owens argues that the issue of “evidentiary sufficiency” was

  never raised or even mentioned in the district court and that

  Dominguez’s pro se motion to set aside the judgment pursuant to

  C.R.C.P. 59 and 60 did not expressly raise a sufficiency of the

  evidence argument. Therefore, he argues, the issue has not been

  preserved for appeal.

¶ 21   We conclude that Dominguez sufficiently preserved the issue

  for appellate review by including it in her motion to set aside the

  judgment. Where an issue was brought to the district court’s

  attention and the court ruled on it, it is preserved for appellate

  review; no talismanic language is required to preserve an issue. See

  Target Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12, ¶ 23, 351

  P.3d 493, 499.

                              B.   Applicable Law

¶ 22   “It is the trial court’s sole province to resolve disputed factual

  issues and to determine witnesses’ credibility, the weight to accord

  testimony, and the inferences to be drawn from the evidence.” Id.


                                    10
  at ¶ 24, 351 P.3d at 499. Indeed, a trial court’s “determination of” a

  testifying witness’ “credibility [is] entirely within the purview of the

  trial court as the finder of fact and is binding upon” an appellate

  court. People v. Fordyce, 705 P.2d 8, 9 (Colo. App. 1985). “The trier

  of fact is not required to accept a witness’ testimony, even [if] it is

  uncontroverted.” Id. We “may not reweigh evidence or substitute

  [our] judgment for that of the trial court.” Target Corp., ¶ 24, 351

  P.3d at 499.

                                  C.    Analysis

¶ 23   In its detailed, eight-page ruling following the June 2015

  hearing, the district court made numerous factual findings,

  including that Dominguez lacked credibility due to inconsistencies

  in her testimony. It also found that the evidence suggested that

  Dominguez had attempted to mislead the court regarding her

  involvement in the POD designations “in order to appear less

  controlling and less influential in the Decedent’s transactions.”

¶ 24   The court concluded this despite Dominguez’s contention that

  she presented unrefuted evidence from ten different witnesses that

  the decedent had testamentary capacity to designate her as

  beneficiary of the POD accounts. The trial court noted that most of


                                       11
  those witnesses had only met with the decedent briefly and retained

  a financial stake in testifying in favor of Dominguez. The court

  instead found that the testimony of the decedent’s attorney, who

  had prepared his will, was “far more compelling.” The attorney

  testified that when she and the decedent had discussed his POD

  designations, he had mistakenly told her that he had designated

  Owens as beneficiary of the accounts rather than Dominguez. The

  court concluded that the attorney’s testimony demonstrated that

  the decedent was “severely confused” regarding the nature and

  effect of his POD designations such that he lacked testamentary

  capacity to make such dispositions.

¶ 25   Finally, the court concluded:

            [T]he Court infers from the confidential
            relationship Respondent had with the
            Decedent, the contradictions in Respondent’s
            testimony, and the other evidence submitted
            by Petitioner, that Respondent exerted undue
            influence on the Decedent and manipulated
            him into making the POD designations.

  The court’s conclusion, based on the evidence presented, echoed

  the principles of Krueger, 205 P.3d at 1156.

¶ 26   Dominguez nevertheless asserts that the court’s findings were

  inconsistent because Dominguez presented ten witnesses with


                                   12
  unrefuted evidence in her favor and the court used the same

  evidence to overturn the POD designations but uphold the will.

  However, the court explained that it had relied on different evidence

  in analyzing the will and the POD designations. Specifically, the

  court noted that “unlike the POD designations, the Decedent was

  represented by an attorney when he signed the will.”

¶ 27   Based on the above findings, we conclude that the record

  supports the court’s factual findings and its assessment of the

  credibility of each witness. Accordingly, we do not displace its

  conclusions. Target Corp., ¶ 24, 351 P.3d at 499.

                       IV.   Right to Jury Trial

¶ 28   Dominguez next asserts that the district court erred when it

  prevented her from exercising her right to a jury trial. We disagree.

¶ 29   After the June 2015 evidentiary hearing and before any

  postjudgment motions were filed, Dominguez’s counsel filed a

  motion to withdraw, which the court granted. Dominguez filed a

  pro se motion for an extension of time to retain counsel to file

  postjudgment motions. The court denied this motion. Dominguez

  then filed pro se motions to set aside the judgment and to

  reconsider the judgment. Both motions asserted that she was


                                    13
  entitled to a jury trial. The court denied her motions and denied

  her requests for a jury trial.

¶ 30   Owens asserts that Dominguez’s claims regarding her right to

  a jury trial were unpreserved for appellate review since she made

  such requests after the trial court’s judgment and thus waived her

  right to a trial by jury. We conclude that because Dominguez had

  the opportunity to exercise her right to a jury trial and failed to do

  so, she has waived her claims to such a right.

                         A.    Standard of Review

¶ 31   We review the construction of statutes de novo. Lobato v.

  Indus. Claim Appeals Office, 105 P.3d 220, 223 (Colo. 2005). When

  interpreting a statute, we must determine and give effect to the

  General Assembly’s intent. Davison v. Indus. Claim Appeals Office,

  84 P.3d 1023, 1029 (Colo. 2004). If the statutory language is clear,

  we interpret the statute according to its plain and ordinary

  meaning. Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo.

  2010).

¶ 32   The Colorado Rules of Probate Procedure are subject to the

  principles of statutory construction. People v. Zhuk, 239 P.3d 437,

  438-39 (“We interpret rules of procedure consistent with principles


                                     14
  of statutory construction.”). We construe them de novo. Maslak v.

  Town of Vail, 2015 COA 2, ¶ 10, 345 P.3d 972, 975.

                           B.    Applicable Law

¶ 33   Pursuant to Krueger, “whether the opponent’s evidence meets

  the burden [of rebutting the presumption of undue influence] is a

  question of legal sufficiency for the trial court, not a question of fact

  for the jury.” 205 P.3d at 1154 (holding that “this general rule

  holds true for the rebuttable presumptions of undue influence and

  unfairness”). “[I]f the presumption’s opponent does offer evidence

  legally sufficient to meet the burden of going forward . . . [then] the

  fact remains disputed, to be determined by the jury.” Id. at 1156.

¶ 34   Pursuant to C.R.P.P. 25, “[i]f a jury trial is authorized by law,

  any demand therefor shall be filed with the court, and the

  appropriate fee paid, before the matter is first set for trial. Failure

  to make such a demand constitutes a waiver of trial by jury.”

                                C.   Analysis

¶ 35   Referencing Krueger, Dominguez contends that she asserted

  her right to a jury in a pro se motion as soon as the issue became

  ripe to be heard by a jury — when the court determined that she

  had met her evidentiary burden of going forward regarding the issue


                                     15
  of undue influence and testamentary capacity. Dominguez bases

  this argument on language in Krueger referring to disputed facts “to

  be determined by the jury.” 205 P.3d at 1156. However, the issue

  was ripe to be heard by a jury when the issue of whether

  Dominguez had exercised undue influence was set for a hearing in

  June 2015. The court followed the legal principles set forth in

  Krueger, heard disputed testimony, determined whether Dominguez

  had satisfied her burden of proof, and concluded that Dominguez

  had exerted undue influence over the decedent and manipulated

  him into making the POD designations when he lacked

  testamentary capacity to do so. Dominguez should have requested

  a jury trial beforehand; by failing to do so, she waived her claim to

  that right.

¶ 36   Dominguez’s attorney, who represented her before and during

  the hearing in June 2015, should have known that her opportunity

  to request a jury trial ripened prior to that hearing. In her

  postjudgment motions, Dominguez requested a jury trial but made

  no claim that she was unaware of her right to a jury trial. In any

  case, such argument would have been irrelevant, since the attorney

  that represented her at the bench trial did not make a jury request


                                    16
  prior to the trial. Nothing prevented Dominguez from asserting her

  right to a jury trial at that time.

¶ 37   Accordingly, we conclude the district court did not prevent

  Dominguez from exercising her right to a jury trial; therefore, it did

  not err in denying her belated request for one.

                              V.   Contempt

¶ 38   Dominguez contends that the district court erred in

  concluding that the existence of nonliquid assets can be the basis

  for determining that a contemnor has the present ability to pay.

  Owens responds that Dominguez’s release from jail in April 2016

  after serving only three months, with work release, of her six-month

  contempt sentence renders the contempt issue moot. We agree

  with Dominguez that the claim is not moot, but we also disagree

  with her contention of error.

                             A.    Standard of Review

¶ 39   Whether Dominguez had the duty and the ability to pay is a

  mixed question of law and fact. Where there is a mixed question of

  law and fact, we review to the trial court’s factual findings for clear

  error, but independently review questions of law. See E-470 Public

  Hwy. Auth. V. 455 Co., 3 P.3d 18, 22 (Colo. 2000). A finding of


                                        17
  contempt is within the discretion of the trial court and “will not be

  reversed absent an abuse of discretion.” In re Estate of Elliott, 993

  P.2d 474, 478 (Colo. 2000). The imposition of remedial sanctions

  for contempt is governed by C.R.C.P. 107(d)(2).

¶ 40   Ordinarily, we will not “render opinions on the merits of an

  appeal when the issues have become moot.” Johnson v. Griffin, 240

  P.3d 404, 406 (Colo. App. 2009). “An issue becomes moot when the

  relief granted by the court would not have a practical effect upon an

  existing controversy,” Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d

  1095, 1102 (Colo. 1998), or when prospective relief is unnecessary

  to remedy an existing controversy or prevent its recurrence. State

  Bd. of Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 971 (Colo.

  1997).

                             B.    Applicable Law

¶ 41   Remedial contempt, at issue in this case, applies only to those

  individuals who have a duty and an ability to comply but refuse to

  do so. See In re Marriage of Nussbeck, 974 P.2d 493, 498 (Colo.

  1999) (citing C.R.C.P. 107(d)(2)). Pursuant to C.R.C.P. 107(d), to

  “justify punishment for this civil contempt consisting in a refusal to

  perform a required act for the benefit of others, the trial court must


                                    18
  upon hearing make a finding both of the facts constituting

  contempt and of the present duty and ability to perform.” Marshall

  v. Marshall, 191 Colo. 165, 167, 551 P.2d 709, 710 (1976) (citing

  People in Interest of Murley, 124 Colo. 581, 239 P.2d 706 (1951)).

  Thus, before imposing remedial contempt, the court is required to

  find a duty and a present ability to pay. C.R.C.P. 107(d)(2).

  However, “[t]he burden of proving a present inability to perform

  rests with the contemnor.” Elliott, 993 P.2d at 479.

                                 C.    Analysis

¶ 42   We first address Owens’ contention that Dominguez’s

  contempt claim is moot now that she has been released from jail.

¶ 43   After the district court issued the final judgment, it held a

  hearing regarding the $140,000 in the State Farm Bank account

  and issued a contempt order. There, the court sentenced

  Dominguez to six months of jail with the condition that she could

  purge the contempt by making monthly $50,000 payments until

  she paid $140,000. The court warned Dominguez that if she failed

  to make any of these monthly payments, she would be rejailed. The

  risk of reincarceration only related to Dominguez’s failure to pay

  pursuant to the contempt order. Even though Dominguez was


                                      19
  released from her sentence three months early, it is not clear from

  the record whether Dominguez has made all the payments

  pursuant to the contempt proceedings.1 Thus, because Dominguez

  could again be held in contempt we conclude the issue is not moot.

¶ 44   Nevertheless, we disagree with her contentions of error. As

  stated above, the contemnor has “the burden of proving a present

  inability to perform” in order to overcome a finding of remedial

  contempt. Id. Here, the district court found that Dominguez had

  not met that burden.

¶ 45   In its sentencing order, the district court made extensive

  findings of fact constituting Dominguez’s contempt and her ability

  to pay back the funds she took in violation of the court’s orders

  establishing constructive trusts over the POD accounts. First, the

  court found that, by operation of the constructive trust imposed on

  the POD accounts, Dominguez was prohibited from disposing of

  those funds. Specifically, Dominguez had a court-ordered duty not

  to remove the $140,000 that remained in the State Farm Bank



  1 Owens’ counsel stated at oral argument that the payments had
  not been made, and Dominguez’s counsel did not disagree with that
  statement.

                                   20
  account. This money was no longer in the account at the close of

  the hearing on Owens’ petition to determine testacy.

¶ 46   At the contempt hearing, the court noted that Dominguez “has

  informed the Court or told the Court a variety of different versions

  of where this money has gone.” It continued:

            When she was asked to put the money, put a
            certain sum into the court registry, she
            indicated she did not have that sum, that it
            had been spent. She gave a variety of different
            ways it had been spent, but then recalled that
            she had the funds at home. And she was able
            to deposit it in the court registry. . . .
            Ms. Dominguez has provided the Court with so
            many versions of where these large sums of
            money have gone that the Court can no longer
            find that Ms. Dominguez has any credibility
            with reference to the sourcing of these funds.

            ....

            And the Court has made findings that Ms.
            Dominguez has the absolute ability to pay.
            She has affirmatively told the Court, if the
            Court were to believe Ms. Dominguez, that she
            can sell property in Mexico, it is hers to sell,
            and she can supply that to the Court.
            Again, I emphasize when she was to deposit a
            large sum of money into the court registry and
            she told the Court she did not have the money,
            I believe within the next at least couple of
            days, she was able to find the money. My
            recollection is she found it at home and she
            was able to deposit that sum in the court
            registry.


                                    21
¶ 47   Thus, the court concluded that Dominguez could not provide a

  coherent, consistent account of what had happened to the funds in

  the POD accounts and that it had provided multiple continuances

  to Dominguez to resolve the nonpayment issues. Thus, the court

  relied on evidence in the record to conclude not only that

  Dominguez had a duty but also that she had not met her burden of

  proof regarding her inability to pay. Unlike the contemnor in Elliott,

  where the contemnor’s attorney “filed an accounting, detailing how

  [the contemnor] expended the estate assets,” id. at 480, Dominguez

  did not “sufficiently explain[] how” the missing funds had been

  disbursed. Id. at 479. The court’s contempt order was supported

  by analysis of the evidence in the record; as a result, we will not

  displace it. See id. at 479-80 (Such findings by a trial court “shall

  not be set aside unless clearly erroneous.”) (citations omitted).

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

  holding Dominguez in contempt.

                          VI.   Attorney Fees

¶ 49   Finally, both parties seek attorney fees. Dominguez asserts

  that she is entitled to attorney fees pursuant to C.R.C.P. 12(b)(5)



                                    22
  and section 13-17-201, C.R.S. 2016, because the district court

  should have dismissed Owens’ claim for lack of standing.2 Owens

  also asserts that he is entitled to attorney fees pursuant to section

  13-17-102, C.R.S. 2016, as well as C.A.R. 38(b) because

  Dominguez’s claims are groundless, frivolous, and vexatious. We

  conclude that neither party is entitled to an award of attorney fees.

                             A.    Applicable Law

¶ 50   Under section 13-17-102, an award of attorney fees turns on

  whether a claim “lacked substantial justification” — in other words,

  whether it was “substantially frivolous, substantially groundless, or

  substantially vexatious.” § 13-17-102(4). We will not award

  attorney fees where a genuinely disputed issue exists and a party

  presents a rational argument based on the evidence and the law.

  See First Colo. Bank & Tr., N.A. v. Plantation Inn, Ltd., 767 P.2d 812,

  814 (Colo. App. 1988). A losing position is not necessarily

  groundless for purposes of awarding attorney fees, nor is a claim

  groundless solely because the plaintiff failed to establish a prima

  facie case if there is some credible evidence to support the claim.


  2 Owens did not request attorney fees under C.R.C.P. 107(d)(2) in
  the trial court for the contempt proceedings.

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  See, e.g., Colo. Supply Co. v. Stewart, 797 P.2d 1303, 1307 (Colo.

  App. 1990).

¶ 51   Section 13-17-201 applies to C.R.C.P. 12(b) dismissals of “all

  actions brought as a result of a death or an injury to person or

  property occasioned by the tort of any other person.” § 13-17-201;

  see also Castro v. Lintz, 2014 COA 91, ¶ 12, 338 P.3d 1063, 1067.

  An award of attorney fees under section 13-17-201 is mandatory

  when a trial court dismisses a tort action under C.R.C.P. 12(b).

  Castro, ¶ 12, 338 P.3d at 1067.

                                 B.    Analysis

¶ 52   We first conclude that Dominguez incorrectly relies on section

  13-17-201, since it is limited to Rule 12(b) dismissals of tort

  actions.

¶ 53   We next conclude that neither Owens nor Dominguez is

  entitled to an award of attorney fees pursuant to section 13-17-102.

  Both parties presented rational arguments based on evidence and

  the law in regard to genuinely disputed issues. Their claims were

  not groundless because they both presented some credible evidence

  to support their claims. Therefore, we conclude that neither party




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  is entitled to attorney fees. In any event, Dominguez is not entitled

  to attorney fees because she has not prevailed on appeal.

                          VII.   Conclusion

¶ 54   Accordingly, the judgments are affirmed.

       JUDGE GRAHAM and JUDGE NAVARRO concur.




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