In re Estate of Shimizu , 411 P.3d 211 ( 2016 )

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.
21