20CA1299 BKP v Killmer 01-06-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA1299
City and County of Denver District Court No. 19CV31940
Honorable Robert L. McGahey, Jr., Judge
BKP, Inc.; Ella Bliss Beauty Bar, L.L.C.; Ella Bliss Beauty Bar 2, L.L.C.; and
Ella Bliss Beauty Bar 3, L.L.C.,
Plaintiffs-Appellants,
v.
Killmer, Lane & Newman, LLP; Mari Newman; and Towards Justice,
Defendants-Appellees.
ORDER VACATED
Division V
Opinion by JUDGE DUNN
Welling and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 6, 2022
Sherman & Howard LLC, Raymond M. Deeny, Heather Fox Vickles, Brooke A.
Colaizzi, Denver, Colorado, for Plaintiffs-Appellants
Treece Alfrey Musat P.C., Michael Hutchinson, Denver, Colorado; Killmer, Lane
& Newman, LLP, Thomas Kelley, Denver, Colorado, for Defendants-Appellees
Killmer, Lane & Newman, and Mari Newman
The Law Office of Brian D. Gonzales, PLLC, Brian D. Gonzales, Fort Collins,
Colorado; Harter Secrest & Emery LLP, Brian M. Feldman, Rochester, New
York, for Defendant-Appellee Towards Justice
1
¶ 1 Plaintiffs, BKP, Inc.; Ella Bliss Beauty Bar, L.L.C.; Ella Bliss
Beauty Bar 2, L.L.C.; and Ella Bliss Beauty Bar 3, L.L.C.
(collectively, the employer), appeal the trial court’s order awarding
attorney fees to defendants Kilmer, Lane & Newman, LLP; Mari
Newman; and Towards Justice (collectively, the attorneys). Because
another division of this court has reversed the merits judgment on
which the fee award was based, we vacate the fee order.
¶ 2 In 2018, the attorneys filed a putative class action lawsuit
against the employer, asserting various wage and employment
claims. The same day they filed the lawsuit, the attorneys made
statements about it at a press conference and in a press release.
¶ 3 Nearly a year later, the employer sued the attorneys, alleging
that statements made at the press conference and in the press
release were defamatory and interfered with the employer’s
contractual relations.
¶ 4 The attorneys filed a motion to dismiss the employer’s claims
under C.R.C.P. 12(b)(5), arguing that the statements were protected
speech and not actionable. The trial court agreed and dismissed
the employer’s claims.
2
¶ 5 The attorneys then filed a motion for attorney fees under
section 13-17-201, C.R.S. 2021, which requires an attorney fee
award when a court dismisses a tort action under Rule 12(b). The
attorneys also filed an unopposed bill of costs. The trial court
granted the motion and awarded the attorneys “most of their
requested” fees and the unopposed costs.
¶ 6 The employer separately appealed the merits judgment and
the order awarding fees, but it didn’t appeal the cost award.
¶ 7 Another division of this court considered the employer’s appeal
of the order dismissing its claims. See BKP, Inc. v. Kilmer Lane &
Newman, LLP, 2021 COA 144 (BKP I). That division concluded that
not all of the attorneys’ statements were protected speech. Id. at
¶¶ 80-81. The division therefore “reverse[d] the trial court’s order
dismissing” the case and remanded “to the trial court to reinstate
1
1
A more detailed description of the facts and procedural history can
be found in BKP I. See BKP, Inc. v. Kilmer Lane & Newman, LLP,
2021 COA 144.
3
¶ 8 Given that result, we must reverse the order awarding fees
under section 13-17-201.
2
See Grear v. Mulvihill, 207 P.3d 918,
923 (Colo. App. 2009). While section 13-17-201 requires the award
of fees where a tort action is dismissed under Rule 12(b), that
section “does not authorize recovery [of attorney fees] if a defendant
obtains dismissal of some, but not all, of a plaintiff’s tort claims.”
Colo. Special Dists. Prop. & Liab. Pool v. Lyons, 2012 COA 18, ¶ 60;
accord Scott v. Scott, 2018 COA 25, ¶ 61. Thus, because BKP I
reversed the order dismissing the employer’s complaint, the
attorneys are not entitled to attorney fees under section 13-17-201.
See Scott, ¶ 61; see also Grear, 207 P.3d at923. But because the
employer did not appeal or challenge the cost order, we don’t
consider that order here.
¶ 9 Finally, given the result in BKP I and the reversal of the fee
award here, attorneys are not entitled to an award of appellate fees
2
On appeal, the employer largely challenges the reasonableness of
the fee award. They do so assuming that “the trial court’s dismissal
of [its] claims against [the attorneys] withstands appeal.” No one
appears to dispute that, if the dismissal is reversed — as was the
case here — the order awarding attorney fees must also be reversed.
See Scott v. Scott, 2018 COA 25, ¶ 61; see also Grear v. Mulvihill,
207 P.3d 918, 923 (Colo. App. 2009).
4
and costs under section 13-17-201. We therefore decline that
request.
¶ 10 For these reasons, we vacate the trial court’s order awarding
fees to the attorneys.
JUDGE WELLING and JUDGE YUN concur.
