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Wesley v. Newland.

2021 COA 142. No. 20CA0649.  Civil Procedure—Joinder—Joint and Several Liability—Attorney Fees—Former Attorney.

November 24, 2021

This appeal arose out of a tort action in which the district court granted defendant’s motion to dismiss for failure to prosecute. Defendant sought attorney fees under the frivolous and groundless litigation statute against both plaintiff and Johnson, her former lawyer who had withdrawn from representing her. The district court awarded fees and costs against plaintiff but denied defendant’s request to join Johnson.

Defendant argued on appeal that the district court erred in concluding that the Colorado Rules of Civil Procedure did not authorize joinder of Johnson. Former counsel may be joined for the purpose of a postjudgment motion seeking attorney fees under CRS § 13-17-102 and may be liable for the same debt or conduct that is already before the court. Therefore, the district court misapplied the law and abused its discretion.

Defendant also contended that the district court erred by granting her attorney fees motion only against plaintiff and not against Johnson. When a court orders attorney fees under CRS § 13-17-102, it must consider allocating fees among the offending attorneys and parties, jointly or severally, as it deems just in its discretion. The court must also make sufficient findings to allow meaningful appellate review. Here, the district court abused its discretion by failing to comply with the statutory mandate and not making sufficient findings regarding allocation.

The costs order was affirmed. The order denying joinder of Johnson was reversed and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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