Part Two: Common Legal Bases for Appellate Attorney Fees

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We are exploring the nuts and bolts of how to request attorney fees when on appeal at the Colorado Court of Appeals. Part One of this series outlined the general procedural requirements of how to request attorney fees at the Colorado Court of Appeals. Part Two now addresses some of the common legal bases the court of appeals has used to justify an award of appellate attorney fees.

Common Grounds for Attorney Fees on Appeal

In order to satisfy the requirements of the rule, litigants must be able to identify the legal basis for an award of attorney fees. In general, if attorney fees were awarded at the trial court level, or were available to the prevailing party, for example, they may be similarly available on appeal. Here is a list of common bases that appellate courts have used to justify an award of fees on appeal:

Fee-Shifting Provisions in a Contract

Oftentimes, a contract which is the subject of a lawsuit will provide for shifting attorney fees. If this is the case, appellate courts will often recognize this and award fees. For example, in Gattis v. McNutt, 2013 COA 145, the court awarded appellate attorney fees to the prevailing party based on a fee-shifting provision in a contract.

Shifting Attorney Fees in Statute

The other common ground for an award of appellate attorney fees is if a statute specifically provides for them. Most of the time, the statute will not specify that attorney fees on appeal are awardable, but will entitle a prevailing party in litigation to a fee award. Divisions of the court of appeals “have held that where a party has successfully defended on appeal a judgment as to which attorney fees were awarded pursuant to a fee-shifting statute, that party is entitled to recover reasonable appellate attorney fees.”¹ Though by no means an exhaustive list, statutes that courts have cited to award fees include:

• A prevailing party in a case under the Colorado Wage Claim Act, § 8-4-110(1), C.R.S. 2016.²

• Actions involving real or personal property affected by spurious documents, § 38-35-204(2), C.R.S. 2016.³

• Prevailing in certain litigation under the Colorado Open Records Act, § 24-72-204(5), C.R.S. 2016.⁴

• Section 13-17-201, C.R.S. 2016, provides for attorney fees against a plaintiff whose tort action is dismissed pursuant to C.R.C.P. 12(b).⁵

• Certain actions under the Colorado Common Interest Ownership Act (CCIOA), § 38-33.3-123, C.R.S. 2016.⁶

Sanctions and Frivolous Appeals

Appellate courts may also exercise their discretion and award attorney fees as a sanction for another party’s misconduct. One of the most commonly cited grounds for attorney fees on appeal is that the appeal is frivolous. C.A.R. 38 and section 13-17-102, C.R.S. 2016, both provide a legal basis to award attorney fees for frivolous appeals.

[A]n appeal may be frivolous in two distinct ways: (1) it may be frivolous as filed; or (2) it may be frivolous as argued. An appeal is frivolous as filed when the district court’s judgment is so plainly correct and the legal authority so clearly against the appellant’s position that there is really no appealable issue. An appeal is frivolous as argued where the appellant commits misconduct in arguing the appeal.⁷

As a general matter, it is far more common for an attorney to see an appeal as frivolous than it is for a judge to actually agree with that conclusion. Courts are generally reluctant to award fees for frivolous appeals because appealing to the Court of Appeals is usually done as of right, and there are almost always legally defensible arguments to make about errors made below. However, if your opponent’s brief looks like the one at issue in Martin v. Essrig, 277 P.3d 857 (Colo. App. 2011), you may have a fighting chance.

Conclusion

Obtaining an award of attorney fees on appeal is usually as simple as requesting it properly. Be sure to do your research on the grounds for such an award. If it is likely a fee request could be granted, carve out some of the word limit in the brief to devote to explaining the legal and factual basis for the award.

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¹ Battle N., LLC v. Sensible Housing Co., 2015 COA 83, ¶ 74.
² Lester v. Career Building Academy, 2014 COA 88, ¶ 48.
³ Battle N., LLC v. Sensible Housing Co., 2015 COA 83, ¶ 74.
⁴ Marks v. Koch, 284 P.3d 118, 124 (Colo. App. 2011).
⁵ Kennedy v. King Soopers, Inc., 148 P.3d 385, 388 (Colo. App. 2006).
⁶ Vista Ridge Master Homeowners Ass’n, Inc. v. Arcadia Holdings at Vista Ridge, LLC, 2013 COA 26, ¶ 22.
⁷ Martin v. Essrig, 277 P.3d 857, 862 (Colo. App. 2011).