SUMMARY
November 24, 2021
2021COA142
No. 20CA0649, Wesley v. Newland — Attorney Fees — Joint
and Several Fee Awards; Civil Procedure — Joinder
A division of the court of appeals addresses two issues of first
impression. First, whether the Colorado Rules of Civil Procedure
authorize joinder of former counsel for the purposes of
postjudgment proceedings in which attorney fees are sought.
Second, what a court must do to comply with the mandatory “shall
allocate” language in section 13-17-102(3), C.R.S. 2021, when
imposing an attorney fees award.
The division concludes that courts have the authority under
the Colorado Rules of Civil Procedure to join former counsel for the
purposes of postjudgment proceedings in which attorney fees are
sought. The division also concludes that, when imposing an
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
attorney fees award, a district court must consider the allocation of
fees between the party and the party’s present or former counsel
and must make sufficient findings to enable meaningful appellate
review.
Given the district court concluded it lacked the authority to
join former counsel and did not make sufficient findings regarding
allocation, the division reverses and remands this issue for further
proceedings.
COLORADO COURT OF APPEALS 2021COA142
Court of Appeals No. 20CA0649
City and County of Denver District Court No. 18CV33631
Honorable Kandace C. Gerdes, Judge
Nicole Wesley,
Plaintiff,
and
Cornell Johnson,
Attorney-Appellee,
v.
Sarah Newland,
Defendant-Appellant.
ORDERS AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE BERGER
Yun and Davidson*, JJ., concur
Announced November 24, 2021
The Law Office of Cornell Johnson P.C., Cornell Johnson, Denver, Colorado, for
Attorney-Appellee
James Stadler, Jonathan Saadeh, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
1
¶ 1
The winning party in this civil case sought an award of
attorney fees under the frivolous and groundless litigation statute
against both the opposing party and her lawyer who had previously
withdrawn from representing her (withdrawn lawyer). The district
court awarded fees against the opposing party but did not address
whether fees should be awarded against the party’s withdrawn
lawyer. In a separate order, the court also imposed costs only
against the party.
¶ 2
Resolution of this appeal requires us to decide two legal
questions. Does the district court have the authority under the
Colorado Rules of Civil Procedure to join the former attorney as a
party for postjudgment proceedings under section 13-17-102,
C.R.S. 2021? What must the district court do to comply with
section 13-17-102(3)’s mandate that a court “shall allocate” the
payment of a fee award “among the offending attorneys and parties,
jointly or severally, as it deems most just”?
¶ 3
We hold that the district court has authority under the
Colorado Rules of Civil Procedure to join the former lawyer for these
purposes. We also hold that the court must consider the allocation
of fees between the party and the party’s present or former counsel
2
and must make sufficient findings to enable meaningful appellate
review. Applying these holdings, we reverse the district court’s
order denying joinder of former counsel, affirm the costs order, and
remand for further proceedings.
I. Relevant Facts and Procedural History
¶ 4
This appeal arises out of a tort action that concluded when the
district court granted defendant Sarah Newland’s motion to dismiss
for failure to prosecute.
¶ 5
Cornell Johnson represented plaintiff, Nicole Wesley, for most
of that lawsuit. About a month before trial, however, Johnson filed
an unopposed motion to withdraw on the grounds that Wesley had
terminated his representation. After holding a hearing, the district
court granted the motion, and Wesley proceeded pro se through
dismissal.
¶ 6
Relevant here, Newland made two postjudgment motions: a
motion for attorney fees under section 13-17-102(4) and a motion to
join Wesley’s former counsel Johnson as a party for postjudgment
proceedings under C.R.C.P. 19, 20, and 21. Newland also filed a
bill of costs that mentioned only Wesley, though the later attorney
fees motion also requested that costs be imposed against Johnson.
3
¶ 7
After ordering and receiving a response from Johnson (who
argued there was no precedent for joining a withdrawn attorney),
the district court denied the joinder motion. The entire order
provided as follows:
The Court has reviewed the Motion and
response, as well as the applicable legal
authority. The Court finds that CRCP Rule 19,
Rule 20 and/or Rule 21 do not contemplate
such a request by Defendant. Accordingly, the
Motion to Join Cornell Johnson (Plaintiff Nicole
Wesley’s dismissed counsel) in post-judgment
proceedings is DENIED.
¶ 8
Following its denial of the joinder motion, the court, without
holding a hearing, granted the attorney fees motion in part. That
order primarily considered the reasonableness of Newland’s fee
request and imposed fees against Wesley only. Possibly because
the court refused to join Johnson, the order did not indicate that
the court considered allocation of fees against him. In a separate
order, the court also imposed costs against Wesley and not
Johnson.
¶ 9
Newland appealed. Wesley has not filed a brief in this appeal,
but Johnson moved to intervene in the appeal, which this court
allowed over Newland’s objection, and has filed an answer brief.
4
II. Analysis
A. Joinder Motion
¶ 10
Newland first contends that the district court erred when it
denied her post-trial motion to join Johnson. We agree.
1. Standard of Review and Preservation
¶ 11
“Whether to join a party is within the sound discretion of the
trial court and will not be disturbed on appeal absent an abuse of
discretion.” City of Aurora ex rel. Util. Enter. v. Colo. State Eng’r,
105 P.3d 595, 623 (Colo. 2005), as modified on denial of reh’g (Feb.
14, 2005). A court abuses its discretion if its decision is “manifestly
arbitrary, unreasonable, or unfair, or if [the court] misapplies the
law.” AA Wholesale Storage, LLC v. Swinyard, 2021 COA 46, ¶ 32.
¶ 12
The parties agree that this issue was preserved.
2. Analysis
¶ 13
The Colorado Rules of Civil Procedure provide that “[p]arties
may be dropped or added by order of the court on motion of any
party . . . at any stage of the action and on such terms as are just.”
City of Aurora, 105 P.3d at 623 (quoting C.R.C.P. 21) (emphasis in
original). The rules “authorize joinder in situations where one party
seeks to join a person who may be liable for the same debt or
5
conduct that is already before the court.” Id. (emphasis added).
Specifically, C.R.C.P. 20(a) provides that
[a]ll persons may be joined in one action as
defendants if there is asserted against them
jointly, severally, or in the alternative, any
right to relief in respect of or arising out of the
same transaction, occurrence, or series of
transactions or occurrences and if any
question of law or fact common to all
defendants will arise in the action. A plaintiff
or defendant need not be interested in
obtaining or defending against all the relief
demanded.
¶ 14
These joinder rules “should be ‘liberally construed’” and
“indicate clearly a general policy to disregard narrow technicalities
and to bring about the final determination of justiciable
controversies without undue delay.” Stockdale v. Ellsworth, 2017
CO 109, ¶ 31 (quoting City of Aurora, 105 P.3d at 623).
¶ 15
The Colorado Supreme Court has twice affirmed joinder of a
party for the limited purpose of postjudgment proceedings in which
attorney fees were sought. In one case, a water court joined the
City of Aurora as a party after trial on the grounds that the city had
an agency relationship with one of the parties to the action. City of
Aurora, 105 P.3d at 621. The supreme court affirmed joinder of the
city “solely for the purpose of determining liability for attorney fees.”
6
Id. at 623. And in Stockdale, the court affirmed joinder of a
corporation’s alter ego owner for the purposes of seeking attorney
fees. Stockdale, ¶¶ 8, 30-31.
¶ 16
Applying both the plain language of the relevant rules and the
supreme court cases construing those rules, we conclude that
former counsel may be joined for the purpose of a postjudgment
motion seeking attorney fees under section 13-17-102. Former
counsel against whom attorney fees are sought “may be liable for
the same debt or conduct that is already before the court.” City of
Aurora, 105 P.3d at 623. That is, a court may conclude that the
attorney brought a civil action that lacked substantial justification
and is liable jointly or severally with the client for the opposing
party’s attorney fees. See § 13-17-102(3), (4).
¶ 17
Johnson argues that former counsel cannot be joined because
attorneys are “officers of the court, not parties.” We reject this
argument. Johnson cites no authority providing that attorneys
cannot be joined for the purposes of postjudgment proceedings
seeking attorney fees. Moreover, the Colorado Supreme Court has
rejected the broad proposition that an attorney can never be joined
as a party. See Vinton v. Virzi, 2012 CO 10, ¶¶ 11-13.
7
¶ 18
Newland conceded at oral argument that she did not argue
below that the district court continued to have jurisdiction over
Johnson after he was granted leave to withdraw. If continuing
jurisdiction exists, there might be no need to join Johnson as a
formal party. Because Newland raises this argument for the first
time on appeal (and presents it, at best, as an underdeveloped
argument), we do not decide it.1 See McGihon v. Cave, 2016 COA
78, ¶ 10 n.1; People v. Draper, 2021 COA 120, ¶ 99 n.11.
¶ 19
Ultimately, the district court’s conclusion that the Colorado
Rules of Civil Procedure did not authorize joinder of Johnson
misapplied the law and therefore was an abuse of discretion.
1 On remand, however, the court may address the question of
whether joinder of Johnson is even necessary when reconsidering
(Colo. App. 2005) (holding that a district court retained subject
matter jurisdiction over trial counsel even after the entry of
voluntary dismissal for the purposes of determining whether to
impose sanctions against trial counsel under C.R.C.P. 11 and 37 or
attorney fees under section 13-17-102, C.R.S. 2021); Holgate v.
Baldwin, 425 F.3d 671, 677 (9th Cir. 2005) (holding the fact an
attorney “was allowed to withdraw as counsel due to a conflict of
interest [did] not protect him from sanctions based on a filing that
he made before that withdrawal”); 2 James W. Moore et al., Moore’s
Federal Practice § 11.23(6)[a] (3d ed. 2021) (“[A] court may assess
sanctions against a lawyer who has withdrawn from a case before
the opposing party has moved for sanctions or the court has issued
a show cause order.”).
8
B. Attorney Fees Motion
¶ 20
Newland next contends that the district court erred by
granting her attorney fees motion only against Wesley and not
against Johnson.
1. Standard of Review and Preservation
¶ 21
A district court has “broad discretion when determining
whether to award attorney fees” and “absent an abuse of discretion,
its decision will not be disturbed on appeal.” In re Marriage of
Tognoni, 313 P.3d 655, 660-61 (Colo. App. 2011). Again, an abuse
of discretion occurs when the court misapplies the law. Swinyard,
¶ 32.
¶ 22
The parties dispute whether Newland preserved this issue.
Specifically, Johnson argues that the attorney fees motion was
untimely under C.R.C.P. 121, section 1-22(b). We reject this
argument because even assuming the motion was untimely, if a
district court accepts a filing beyond the timeline set forth in Rule
121 “without expressly granting an extension, it has impliedly
exercised its discretion under the rule.” US Fax L. Ctr., Inc. v. Henry
Schein, Inc., 205 P.3d 512, 516 (Colo. App. 2009).
9
¶ 23
Johnson goes further and argues that “[b]y failing to object to
[Johnson’s] motion to withdraw and failing to raise the issue of
attorney fees before the trial court granted [withdrawal],” Newland
waived this claim of error or invited the error.
¶ 24
We also reject this argument. Johnson has cited no authority
providing that an attorney immunizes himself from an attorney fees
award under the statute by withdrawing without opposition. We
conclude that given an attorney fees award may be assessed against
“an attorney . . . [who] brought or defended an action . . . that
lacked substantial justification,” an opposing party need not object
to withdrawal to later seek an attorney fees award. § 13-17-102(4)
(emphasis added).
¶ 25
Our conclusion also finds support in substantial Colorado and
federal authority. See Moore v. DeBruine, 631 P.2d 1194, 1195
(Colo. App. 1981) (holding a party who failed to present evidence
that a plaintiff’s claims were groundless until trial could still seek
an award); see also Holgate v. Baldwin, 425 F.3d 671, 677 (9th Cir.
2005) (holding the fact an attorney “was allowed to withdraw as
counsel due to a conflict of interest [did] not protect him from
sanctions based on a filing that he made before that withdrawal”);
10
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) (holding a
Fed. R. Civ. P. 11 sanction determination may be made “after the
principal suit has been terminated”).
2. Analysis
¶ 26
Newland argues that when a district court imposes an
attorney fees award, it is required to allocate the award among the
offending attorney and party as it deems most just.2 We conclude
the district court abused its discretion when it failed — as best we
can tell from the record — to consider whether to allocate the
attorney fees award against Wesley, Johnson, or both, and when it
2 Newland cursorily argues that this court should also award
district court costs against Johnson because section 13-17-102(2)
authorizes the imposition of costs against an attorney under
Castillo v. Koppes-Conway, 148 P.3d 289, 292-93 (Colo. App. 2006).
Specifically, Newland argues that Castillo “included an award of
costs along with attorney fees against the plaintiff’s attorney under
C.R.S. § 13-17-102(2).” Newland is incorrect. Castillo is inapposite
because the costs portion of the award in that case was imposed
under C.A.R. 38, while the attorney fees portion was imposed under
section 13-17-102. Id. at 292-93. And section 13-17-102 makes
no mention of awarding costs against an attorney — the statute on
which Newland relies authorizes only the imposition of attorney fees
against an attorney. See § 13-17-102(1) (authorizing the award of
reasonable attorney fees “in addition to any costs otherwise
assessed”). Accordingly, we affirm the costs order.
11
failed to make factual findings sufficient to permit meaningful
appellate review on that issue.
¶ 27
When a court orders attorney fees under section 13-17-102,
the court “shall allocate the payment thereof among the offending
attorneys and parties, jointly or severally, as it deems most just,
and may charge such amount, or portion thereof, to any offending
attorney or party.” § 13-17-102(3) (emphasis added). “The
presumption is that the word ‘shall,’ when used in a statute, is
mandatory.” Swift v. Smith, 119 Colo. 126, 136, 201 P.2d 609, 614
(1948).
¶ 28
While the statute does not require a district court to impose
liability jointly and severally against a party and an attorney (or to
otherwise allocate the responsibility to pay the fees to the client or
attorney), the statute does require that a district court exercise its
discretion by at least considering doing so.
¶ 29
The district court’s attorney fees order does not comply with
this statutory mandate. True, Newland filed a motion for attorney
fees that specifically sought fees against Johnson. But we find no
indication in the court’s order or the record that the court exercised
its discretion.
12
¶ 30
In considering the required question of allocation, we also
conclude that the district court must make findings sufficient for an
appellate court to determine whether the court properly exercised
its discretion.
¶ 31
In Munoz v. Measner,3 the Colorado Supreme Court held that a
district court needs to make specific findings regarding certain
statutory factors only when granting an attorney fees award and not
when denying an award. 247 P.3d 1031, 1034-35 (Colo. 2011)
(discussing section 13-17-103(1), C.R.S. 2010). But when denying
the award, a district court “still must ‘make findings that will permit
meaningful appellate review.’” Id. at 1035 (quoting Bd. of Cnty.
Comm’rs v. Auslaender, 745 P.2d 999, 1001 (Colo. 1987)).
¶ 32
Just as a district court must make sufficient findings to allow
for meaningful appellate review of a fee award denial, we conclude a
court must also make factual findings that will permit meaningful
3 We recognize that the Colorado Supreme Court has held that a
district court must make specific factual findings under section 13-
17-103, C.R.S. 2021, when granting a fees motion and that a court
need not do so when denying a fees motion. See Munoz v. Measner,
247 P.3d 1031, 1034-35 (Colo. 2011). However, on appeal,
Newland challenges the denial of fees as to Johnson, which does
not require specific findings on those factors. See id. at 1035.
13
review of allocation under section 13-17-102(3). The district court’s
attorney fees order did not provide such findings.4
III. Conclusion
¶ 33
We reverse the order denying joinder of Johnson and remand
the case for further proceedings. We affirm the costs order. We do
not disturb the attorney fees award order entered against Wesley.
However, on remand, the district court must at least consider
allocating an attorney fees award against Johnson. If the court
exercises its discretion to do so, it may amend the order against
Wesley, and it must make sufficient findings to enable meaningful
appellate review.
JUDGE YUN and JUDGE DAVIDSON concur.
4 In Parker v. Davis, a case cited by neither the parties nor the
district court, a division of this court found that a district court
“implicitly rejected” an attorney’s argument to allocate fees between
the attorney and his client, which was “well within the range of
discretion” of the court under the statute. 888 P.2d 324, 326 (Colo.
App. 1994). The facts of Parker, however, are distinguishable, and
we do not view the case as inconsistent with our holding.
