13-17-201. Award of reasonable attorney fees in certain cases.

In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12 (b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action. This section shall not apply if a motion under rule 12 (b) of the Colorado rules of civil procedure is treated as a motion for summary judgment and disposed of as provided in rule 56 of the Colorado rules of civil procedure.

Source: L. 87: Entire part added, p. 547, § 2, effective July 1.

Law reviews. For article, "1988 Update on Colorado Tort Reform Legislation -- Part II", see 17 Colo. Law. 1949 (1988). For article, "Recent Developments in Governmental Immunity: Post-Trinity Broadcasting", see 25 Colo. Law. 43 (June 1996).

Purpose of section. In enacting this section, the general assembly sought to discourage and deter the institution or maintenance of unnecessary litigation involving tort claims. Employers Ins. v. RREEF USA FUND-II, 805 P.2d 1186 (Colo. App. 1991).

Section applies only to dismissal of an entire tort action, not to dismissal of a single claim. First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993); Holland v. Bd. of County Comm'rs, 883 P.2d 500 (Colo. App. 1994); Jaffe v. City & County of Denver, 15 P.3d 806 (Colo. App. 2000); Barton v. Law Offices of John W. McKendree, 126 P.3d 313 (Colo. App. 2005).

Section applies when a tort action is dismissed pursuant to C.R.C.P. 12(b). Statute neither explicitly nor implicitly contemplates the existence of physical harm to a person or property. Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994).

Section applies when an action is dismissed pursuant to C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). Smith v. Town of Snowmass Vill., 919 P.2d 868 (Colo. App. 1996).

Section does not apply to claims that are pleaded in contract, but are dismissed pursuant to the CGIA because they lie in tort or could lie in tort. Courts will not read the CGIA's concern for claims that "lie or could lie in tort" into the plain language of this section. Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008).

For purposes of applying this section, the court relies on plaintiff's characterization of the claims in the complaint and does not consider what should or might have been pled. Although the case was dismissed based on preemption after a determination that the action was grounded on federal laws, the dismissal of plaintiff's case triggered application of this section, because plaintiff's claims were pled as torts. Kennedy v. King Soopers Inc., 148 P.3d 385 (Colo. App. 2006).

Under this section, an award of attorney fees is mandatory when a trial court dismisses an action under C.R.C.P. 12(b). Barnett v. Denver Publ'g Co., 36 P.3d 145 (Colo. App. 2001); Wark v. Bd. of County Comm'rs, 47 P.3d 711 (Colo. App. 2002); Wilson v. Meyer, 126 P.3d 276 (Colo. App. 2005); Kreft v. Adolph Coors Co., 170 P.3d 854 (Colo. App. 2007).

A party who successfully defends a dismissal order under C.R.C.P. 12(b) is also entitled to recover reasonable attorney fees incurred on appeal. Henderson v. Bear, 968 P.2d 144 (Colo. App. 1998); Wark v. Bd. of County Comm'rs, 47 P.3d 711 (Colo. App. 2002); Wilson v. Meyer, 126 P.3d 276 (Colo. App. 2005); Estate of Harper ex rel. Al-Hamim v. Denver Health & Hosp. Auth., 140 P.3d 273 (Colo. App. 2006); Kreft v. Adolph Coors Co., 170 P.3d 854 (Colo. App. 2007); Ferrel v. Colo. Dept. of Corr., 179 P.3d 178 (Colo. App. 2007).

This section is applicable where both tort and non-tort claims are pled and dismissed under Fed. R. Civ. P. 12. This section applies in cases where all claims, both tort and non-tort, have been dismissed on Fed. R. Civ. P. 12 grounds. Torres v. Am. Family Mut. Ins. Co., 606 F. Supp. 2d 1286 (D. Colo. 2009).

Award of attorney fees is mandatory when trial court dismisses an action under the Colorado Governmental Immunity Act for lack of subject matter jurisdiction. Ferrel v. Colo. Dept. of Corr., 179 P.3d 178 (Colo. App. 2007).

Trial court may award attorney fees and costs to a defendant when claims are still pending as to other defendants at the time of dismissal and, thus, the entire lawsuit has not been dismissed. By using the term "defendant" in the singular, this section necessarily applies to each defendant who has an action against it dismissed pursuant to C.R.C.P. 12(b)(1). Stauffer v. Stegemann, 165 P.3d 719 (Colo. App. 2006).

Defendant may not recover attorney fees under this section when (1) the action includes both tort and nontort claims and (2) defendant has obtained dismissal of the tort claims, but not of the nontort claims, under C.R.C.P. 12. Sotelo v. Hutchens Trucking Co., 166 P.3d 285 (Colo. App. 2007).

Section does not apply to a § 1983 claim. Instead, 42 U.S.C. § 1988 applies, and that section does not authorize an award of fees and costs unless the claim is properly characterized as frivolous, vexatious, unreasonable, groundless, or made in bad faith. State v. Golden's Concrete Co., 962 P.2d 919 (Colo. 1998); Berg v. Shapiro, 36 P.3d 109 (Colo. App. 2001).

Although plaintiff's action should properly have been founded in tort under § 13-21-115, plaintiff's claim was, nevertheless, framed as a contract claim, and it was the purported contract claim that was dismissed. Hence, this section, which authorizes attorney fee awards when a tort claim is dismissed prior to trial, is inapplicable. Sweeney v. United Artists Theater Circuit, 119 P.3d 538 (Colo. App. 2005).

Contrary to plaintiff's assertion that his action was primarily a contract action, six of eight claims against defendants, and eight of 10 claims asserted, were pleaded as tort claims within the meaning of this section. Dubray v. Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008).

Trial court did not err in failing to apportion attorney fees requested based on tort versus nontort claims. Even if defendants were entitled to recover fees and costs associated with dismissal of only the tort claims, apportionment would be unwarranted because the entire action was dismissed for the same reason (lack of personal jurisdiction) and defendants would have incurred the same, or nearly the same, fees had the case involved only the tort claims. Dubray v. Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008).

Mandatory attorney fees award provision of this section contains no express exclusion for claims brought in a good faith attempt to establish a new rule of law. Houdek v. Mobile Oil Corp., 879 P.2d 417 (Colo. App. 1994); Tunget v. Bd. of County Comm'rs, 992 P.2d 650 (Colo. App. 1999).

Attorney fees mandatory when motion to dismiss for failure to join an indispensable party granted; consideration of evidentiary matters did not convert motion to a motion for summary judgment. Lyon v. Amoco Prod. Co., 923 P.2d 350 (Colo. App. 1996).

To the extent this section and § 13-17-102 (7) are in conflict concerning a good faith tort action that is dismissed pursuant to C.R.C.P. 12(b), this section controls as it is more specific to such action and was enacted later in time than § 13-17-102 (7). Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994); Hewitt v. Rice, 119 P.3d 541 (Colo. App. 2004), aff'd on other grounds, 154 P.3d 408 (Colo. 2007).

By implication, this section allows a plaintiff to escape liability for attorney fees by seeking a voluntary dismissal, filing a stipulation of dismissal, or confessing to a defense motion to dismiss under C.R.C.P. 12(b); however, section is not applicable when plaintiffs seek to maintain state law claims unless and until federal court determines that a federal cause of action exists. Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994).

Trial court is not duty-bound to conduct a separate hearing on the issue of attorney fees before it may deny a request therefor. Hunter v. Colo. Mountain Jr. College, 804 P.2d 277 (Colo. App. 1990).

When fees are awarded, the court is required to make evidentiary findings and must provide the opportunity for a hearing. Pedlow v. Stamp, 776 P.2d 382 (Colo. 1989); Little v. Fellman, 837 P.2d 197 (Colo. App. 1991).

Trial court did not err in treating motion to dismiss as a C.R.C.P. 56 motion for summary judgment, despite fact that no affidavits or documents outside the pleadings were presented; thus, statute permitting award of attorney fees in actions brought as a result of death or injury to person or property, where the action is dismissed on motion of the defendant prior to trial, did not apply. Willer v. City of Thornton, 817 P.2d 514 (Colo. 1991).

When a defendant has two valid defenses to a tort claim and one meets the statutory requirements for the granting of attorney fees under this section, such fees should be awarded. Because this section precludes the recovery of attorney fees whenever a motion is converted to summary judgment, a defendant who prevails on a motion to dismiss based on first amendment immunity generally may not recover attorney fees. Here, however, because there is an alternative, independent ground upon which respondent's claim may be dismissed that comes within this section, petitioner can recover his or her attorney fees. Petitioner may recover his or her attorney fees because his or her motion to dismiss respondent's claim succeeds not only on the basis of his or her first amendment defense, but also on the independent, alternative basis under C.R.C.P. 12(b)(5) that respondent failed to state a claim upon which relief could be granted. Krystkowiak v. W.O. Brisben Cos., 90 P.3d 859 (Colo. 2004).

Defendant not entitled to attorney fees where court converted C.R.C.P. 12(b)(1) motion to dismiss to a motion for summary judgment under C.R.C.P. 56. The fact that the court found plaintiff's allegations of willfulness and wantonness insufficient on their face to support subject matter jurisdiction under the Governmental Immunity Act does not render the dismissal one under C.R.C.P. 12(b). In deciding the question of sovereign immunity, the court necessarily construed the Act and issued a legal finding that disposed of the case. That the trial court considered no matters outside the pleadings in doing so was deemed inconsequential. Zerr v. Johnson, 905 F. Supp. 872 (D. Colo. 1995).

C.R.C.P. 12(b) authorizes the court to consider evidence outside the pleadings without converting the motion into a summary judgment motion for motions under subsection C.R.C.P. 12(b) other than C.R.C.P. 12(b)(5). Aztec Minerals Corp. v. State, 987 P.2d 895 (Colo. App. 1999).

Trial court erred in refusing to award a defendant attorney fees because facts had to be presented and determined by the court. Under the plain language of this section, an award of attorney fees is mandatory when a trial court dismisses an action under the Colorado Governmental Immunity Act for lack of subject matter jurisdiction. Smith v. Town of Snowmass Vill., 919 P.2d 868 (Colo. App. 1996); Villalpando v. Denver Health & Hosp. Auth., 181 P.3d 357 (Colo. App. 2007).

Since the court declined to grant the defendant's motion to dismiss until it heard the evidence presented at trial, this is not a situation in which a defendant delayed seeking dismissal and incurred attorney fees that a timely motion to dismiss could have avoided. Therefore, the court is right in awarding attorney fees pursuant to this section. Abrahamson v. City of Montrose, 77 P.3d 819 (Colo. App. 2003).

This section not in conflict with § 6-1-113 of the Colorado Consumer Protection Act. This section applies to a motion pursuant to C.R.C.P. 12(b) while § 6-1-113 allows attorney fees when claims are groundless and in bad faith or for the purpose of harassment. The provisions can stand side by side because they mandate awards in different circumstances. US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205 P.3d 512 (Colo. App. 2009).

This section applies only when an action is dismissed and does not apply when only a single claim is dismissed. First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993); Sundheim v. Bd. of County Comm'rs of Douglas County, 904 P.2d 1337 (Colo. App. 1995), aff'd, 926 P.2d 545 (Colo. 1996); Berg v. Shapiro, 36 P.3d 109 (Colo. App. 2001); U.S. Fax Law Ctr., Inc. v. T2 Techs., Inc., 183 P.3d 626 (Colo. App. 2007); Hamon Contractors, Inc. v. Carter & Burgess, Inc., __ P.3d __ (Colo. App. 2009).

The defendant is not entitled to attorney fees when only a single fraud claim was dismissed under a motion to dismiss for failure to state a claim of relief. First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993).

Recovery of attorney fees not limited only to fees incurred in preparing motion to dismiss. This section does not so limit an award and instead expressly authorizes "attorney fees in defending the action". Dubray v. Intertribal Bison Coop., 192 P.3d 604 (Colo. App. 2008).

Absent a finding that the defense to a motion for fees lacks substantial justification, fees and costs may not be awarded for challenging that defense. Foxley v. Foxley, 939 P.2d 455 (Colo. App. 1996).

Plaintiffs did not have standing to challenge an award of attorney fees entered pursuant to this section against plaintiffs' counsel. Appeal properly dismissed where counsel had not filed a separate notice of appeal or added his name as an appellant to the appeal. Henderson v. Bear, 968 P.2d 144 (Colo. App. 1998).

Defamation is "an injury to person or property occasioned by the tort of any other person" and therefore an award of attorney fees is appropriate under this section upon a dismissal pursuant to C.R.C.P. 12(b). Barnett v. Denver Publ'g Co., Inc., 36 P.3d 145 (Colo. App. 2001).