COLORADO COURT OF APPEALS                                     2016COA182


Court of Appeals No. 15CA1824
Larimer County District Court No. 13PR30246
Honorable Devin R. Odell, Judge


Barry L. Bruce,

Attorney-Appellant,

v.

Jay A. Roberts and Ashley Roberts McNamara, as Co-Trustees of the Della I.
Roberts Trust,

Petitioners-Appellees.


                      ORDER VACATED IN PART AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division III
                          Opinion by JUDGE NAVARRO
                         Webb and Hawthorne, JJ., concur

                          Announced December 15, 2016


Jackson Kelly PLLC, John S. Zakhem, John L. Skari, Jr., Benjamin Ross,
Denver, Colorado, for Appellant

Davis Graham & Stubbs LLP, John M. Bowlin, Denver, Colorado, for Appellees
¶1    A Colorado court must award attorney fees against a party

 who presents the court with a claim or defense lacking substantial

 justification. § 13-17-102(2), C.R.S. 2016. But can a Colorado

 court award fees under section 13-17-102 for an unjustified claim

 presented to a foreign court?

¶2    This question is raised by appellant, Barry L. Bruce, an

 attorney assessed with opposing counsels’ fees under section

 13-17-102 for legal work performed in both the underlying Larimer

 County estate matter and a collateral action in West Virginia.

 Relying on the language of section 13-17-102 and Board of County

 Commissioners v. Kraft Building Contractors, 122 P.3d 1019 (Colo.

 App. 2005), Bruce argues that the district court lacked authority to

 award attorney fees incurred solely in the West Virginia case.

 Appellees, Jay A. Roberts and Ashley Roberts McNamara, respond

 that In re Estate of Leslie, 886 P.2d 284, 288 (Colo. App. 1994),

 supports the court’s award.

¶3    We conclude that Kraft properly applied the plain language of

 section 13-17-102 and that Leslie is distinguishable. To the extent

 that Leslie may conflict with our decision, however, we decline to

 follow that case. Following Kraft instead, we vacate the district


                                   1
 court’s order as it pertains to attorney fees incurred in the West

 Virginia action and remand for further proceedings.

                    I.     Facts and Proceedings

¶4    In 1996, Della Roberts, assisted by her son James Roberts,

 formed the Della I. Roberts Trust in Colorado, where she lived. She

 died eight days later.

¶5    Upon Della’s death, James, the designated trustee, was

 supposed to divide the trust’s assets into two equal shares. The

 first share was intended to benefit James and his wife, Mary Sue

 Roberts. The second share was intended to benefit Della’s

 grandchildren, the children of James and Mary Sue. The trust

 instrument further provided that James was to distribute to Della’s

 grandchildren “at least monthly and in equal amounts, all of the net

 income from their trust share.”

¶6    James did not properly administer the trust. Apparently,

 however, no one expressed concern over his administration until

 after he died in October 2012. Upon his death, Mary Sue assumed

 the role of trustee pursuant to the trust’s provisions. As such, she

 was supposed to distribute equally all principal remaining from the

 trust’s second share to Della’s grandchildren. But a majority of the


                                   2
 grandchildren promptly removed Mary Sue as trustee (as permitted

 by the trust instrument), citing concerns that trust assets had

 already been squandered and she might not properly distribute any

 remaining assets. These grandchildren then sought the trust’s

 financial records and a corporate fiduciary willing to assume the

 role of trustee.

¶7    Unable to obtain either the financial records or a willing

 corporate fiduciary, two grandchildren — Jay A. Roberts and Ashley

 Roberts McNamara — brought this probate action on behalf of the

 trust. (We will refer to them as “trustees” because they were

 ultimately appointed trustees.) Their initial petition sought an

 order appointing a successor trustee. They then sought the records

 necessary to complete a historical accounting for the trust, marshal

 and distribute the remaining assets, and finally dissolve the trust.

¶8    Mary Sue objected to the petition on jurisdictional grounds.

 Citing her and James’s move from Colorado to West Virginia in

 1999, she argued that West Virginia courts had exclusive

 jurisdiction over the trust. In June 2013, the district court rejected

 the jurisdictional challenge and concluded that Larimer County,

 Colorado, was the appropriate venue.


                                   3
¶9     Meanwhile, Mary Sue filed a separate case in West Virginia

  state court. She asked that court to assume jurisdiction over the

  trust, and she sought (among other things) a temporary restraining

  order and an injunction to prevent dissolution of the trust.

  Trustees removed the case to the federal district court in West

  Virginia. After a hearing, the federal court dismissed the West

  Virginia action in November 2013, concluding that “jurisdiction over

  the trust is properly in Colorado.” Mary Sue appealed this decision

  to the Fourth Circuit but then voluntarily dismissed her appeal.

  The record does not reveal whether trustees sought an attorney fees

  award from the federal courts in the West Virginia action. On

  appeal, Bruce asserts that trustees did not apply for fees in the

  federal courts; trustees have not disputed his assertion.

¶ 10   Back in Colorado, the district court accepted a final

  accounting of the trust filed by trustees, ordered all assets

  remaining in the trust be distributed to the grandchildren in equal

  shares, and found that the trust could recover administrative costs

  and attorney fees incurred in litigating both the Colorado and West

  Virginia cases, pursuant to section 13-17-102.




                                     4
¶ 11   Bruce represented Mary Sue in both the Colorado and West

  Virginia matters. The district court awarded attorney fees for the

  Colorado matter ($7325) in favor of the trust and against both

  Bruce and Mary Sue’s local counsel, jointly and severally. The

  court assessed fees against Bruce for the West Virginia action

  ($54,565).

                            II.    Analysis

¶ 12   Bruce appeals the district court’s order only as it pertains to

  attorney fees awarded for the West Virginia action. He contends

  that section 13-17-102 did not authorize the court to award

  attorney fees incurred solely in the West Virginia case.1 Based on

  the plain language of the statute, Bruce is right, except to the

  extent that trustees used in this case any work product created for

  the West Virginia federal action. Because the record does not reveal

  whether they did so, further proceedings are necessary to address


  1 Bruce seems to present two claims in his opening brief: (1) the
  district court lacked authority to impose fees incurred in the West
  Virginia case and (2) the court did not conduct the proper inquiry to
  determine the amount of the award. He acknowledges in his reply
  brief, however, that “[t]he only issue before this Court is whether
  the Trial Court has jurisdiction to award attorneys’ fees billed in a
  case before the Federal District Court of the Southern District of
  West Virginia.”

                                    5
  this exception. For these reasons, we vacate the order in part and

  remand for resolution of this question.

               A.    Relevant Law and Standard of Review

¶ 13   A court considering whether to award attorney fees must begin

  with the American Rule, “which precludes an award of attorney fees

  absent a specific contractual, statutory, or procedural rule

  providing otherwise.” City of Aurora ex rel. Util. Enter. v. Colo. State

  Eng’r, 105 P.3d 595, 618 (Colo. 2005); see L & R Expl. Venture v.

  CCG, LLC, 2015 COA 49, ¶ 20 (stating that Colorado follows the

  American Rule requiring each party in a lawsuit to bear its own

  legal expenses). Article 17 of title 13 specifically provides otherwise

  and sets forth a limited basis for awarding attorney fees. As

  relevant here, section 13-17-102 authorizes an attorney fees award

  if a court finds an attorney or party brought or defended a civil

  action that “lacked substantial justification,” either in whole or in

  part. § 13-17-102(2); see § 13-17-102(4) (defining the phrase

  “lacked substantial justification”).

¶ 14   But does section 13-17-102 also authorize a Colorado court to

  award attorney fees for frivolous litigation occurring not in that

  court but in a separate (though related) matter occurring in a


                                      6
  foreign court?2 This question presents a statutory interpretation

  issue that we review de novo. Sperry v. Field, 205 P.3d 365, 367

  (Colo. 2009); see also Madison Capital Co. v. Star Acquisition VIII,

  214 P.3d 557, 560 (Colo. App. 2009) (“We review de novo the legal

  analysis employed by the trial court in reaching its decision to

  award attorney fees.”).

¶ 15   The primary goal of statutory interpretation is to ascertain and

  give effect to the General Assembly’s intent. St. Vrain Valley Sch.

  Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 10. To determine this intent,

  we look first to the statute’s plain language. Vigil v. Franklin, 103
P.3d 322, 327 (Colo. 2004). “[W]e must accept the General

  Assembly’s choice of language and not add or imply words that

  simply are not there.” People v. Benavidez, 222 P.3d 391, 394

  (Colo. App. 2009). We must also read the language in the context of

  the statute as a whole, giving consistent, harmonious, and sensible

  effect to all its parts. Jefferson Cty. Bd. of Equalization v. Gerganoff,

  241 P.3d 932, 935 (Colo. 2010); see also Copeland v. MBNA Am.

  Bank, N.A., 907 P.2d 87, 90 (Colo. 1995) (“[A] statute should be

  2Bruce does not contest the district court’s finding that the defense
  asserted in this case and the claim presented in the West Virginia
  case both lacked substantial justification.

                                      7
  interpreted in a manner that gives effect to all its provisions and

  policy objectives, and not in a way that renders one or more of its

  parts or goals inoperative.”).

                             B.    Application

                     1.    District Court’s Reasoning

¶ 16   In its “Order Regarding Attorney Fees,” the district court

  concluded that, unlike subsections (1) and (2) of section 13-17-102,

  subsection (4) granted broad authority to award attorney fees

  incurred in any civil action, even an action not litigated in a

  Colorado court. The court explained:

             Nothing in this subsection [(4)], in contrast to
             C.R.S. § 13-17-102(1) and (2) (requiring that
             an award must be “in any civil action of any
             nature commenced or appealed in any court of
             record in this state”), limits the term “an
             action” to an action in Colorado state court
             and thus it does not preclude, by its plain
             language, an award of attorney fees in a
             Colorado case that were incurred in an action
             in another jurisdiction, as long as that action
             affected the Colorado “proceeding.”

             In this case, the Court found that the West
             Virginia action was “a bad faith effort to delay
             and impede the [trustees’] efforts to resolve the
             issues before this Court.” In other words, the
             Court finds that the West Virginia litigation —
             as a frivolous attack on this Court’s
             jurisdiction — lacked substantial justification,


                                     8
            was interposed for delay, and unnecessarily
            expanded this proceeding and therefore falls
            within the term “an action” in C.R.S. §
            13-17-102(4).3

            Although the Court can find no precedent for
            such an award, it determines, given its
            exclusive jurisdiction over the Trust, as well as
            its broad equitable powers in resolving issues
            regarding the Trust, and the fact that it has a
            complete record of the full scope of this
            litigation (unlike the federal district court,
            which limited its consideration to the issue of
            jurisdiction), that it is appropriate in this case
            for the Court to assess attorney fees incurred
            in the related West Virginia action.

¶ 17   The district court’s conclusion, however, conflicts with Kraft.

  There, a division of this court considered an action filed in Colorado

  state court, removed to federal court, and remanded back to state

  3 While the district court found that Bruce filed the West Virginia
  case to delay these Colorado proceedings, the court did not describe
  how the West Virginia case actually delayed these proceedings or
  expanded them. The appellate record does not show (and the
  parties do not assert) that the court stayed this case pending
  resolution of the West Virginia case or that the West Virginia case
  affected the resolution of this case in any other tangible way —
  other than the effort associated with trustees’ request for an award
  of attorney fees incurred in West Virginia. Although section
  13-17-102, C.R.S. 2016, would have permitted the district court to
  award fees incurred for additional litigation in this case that was
  caused by the West Virginia matter (if any had occurred), the
  statute did not authorize the award for fees incurred in the West
  Virginia case unless those fees related to work product also used in
  this case, as we shall explain.


                                    9
  court. Kraft, 122 P.3d at 1021. On remand, the Colorado district

  court awarded defendants attorney fees for work performed at all

  stages of the litigation pursuant to section “13-17-101, et seq.” Id.4

  The award included fees for actions taken while the matter was

  pending in federal court. Id. at 1021-22.

¶ 18   On appeal, the plaintiff contended that the trial court lacked

  authority to award attorney fees incurred solely in the federal court

  proceedings. Id. at 1022. The Kraft division agreed and held that

  section “13-17-101, et seq.” — which includes section 13-17-102 —

  did not authorize an award of attorney fees incurred for work

  performed in the federal court unless the work product was also

  used in the state proceedings. Id. at 1026.5 Another division of this



  4 The trial court in Board of County Commissioners v. Kraft Building
  Contractors, 122 P.3d 1019 (Colo. App. 2005), also awarded fees
  under C.R.C.P. 11 and C.R.C.P. 121, section 1-15(7). Because
  those rules are not at issue here, we simply discuss Kraft’s
  application of the statutes.

  5 In support, the division pointed to analogous cases from other
  jurisdictions: Major v. First Virginia Bank-Central Maryland, 631
A.2d 127 (Md. Ct. Spec. App. 1993), and Lopez-Flores v. Hamburg
  Township, 460 N.W.2d 268 (Mich. Ct. App. 1990). Both cases
  rejected fee awards for legal work conducted solely before a federal
  court, with one concluding that such awards should be left to the
  judge presiding over the federal action, “not a [state] court judge

                                    10
  court has followed Kraft. See Kennedy v. King Soopers Inc., 148
P.3d 385, 389 (Colo. App. 2006) (“A state court may award attorney

  fees for work in federal court if the work produced during the

  federal proceedings is also used in the state court proceedings.”).

¶ 19   The plain language of section 13-17-102 supports the holding

  of Kraft. Subsection (2) requires a Colorado court to award attorney

  fees in any civil action brought in that court if such action or a

  defense thereto lacked substantial justification:

             Subject to the limitations set forth elsewhere
             in this article, in any civil action of any nature
             commenced or appealed in any court of record
             in this state, the court shall award, by way of
             judgment or separate order, reasonable
             attorney fees against any attorney or party who
             has brought or defended a civil action, either
             in whole or in part, that the court determines
             lacked substantial justification.

  § 13-17-102(2) (emphasis added); see also § 13-17-102(1) (“Subject

  to the provisions of this section, in any civil action of any nature

  commenced or appealed in any court of record in this state, the court

  may award, except as this article otherwise provides, . . . reasonable

  attorney fees.”) (emphasis added).



  who had no jurisdiction over that case.” Lopez-Flores, 460 N.W.2d
  at 270.

                                    11
¶ 20   Subsection (4), read in harmony with subsections (1) and (2),

  clarifies the process for invoking the court’s authority to award fees

  and the conduct for which the court may exercise that authority:

             The court shall assess attorney fees if, upon
             the motion of any party or the court itself, it
             finds that an attorney or party brought or
             defended an action, or any part thereof, that
             lacked substantial justification or that the
             action, or any part thereof, was interposed for
             delay or harassment or if it finds that an
             attorney or party unnecessarily expanded the
             proceeding by other improper conduct,
             including, but not limited to, abuses of
             discovery procedures available under the
             Colorado rules of civil procedure or a
             designation by a defending party under section
             13-21-111.5(3) that lacked substantial
             justification. As used in this article, “lacked
             substantial justification” means substantially
             frivolous, substantially groundless, or
             substantially vexatious.

  § 13-17-102(4).

¶ 21   In other words, subsection (4) does not grant a court the

  authority to assess attorney fees that could not be awarded under

  subsections (1) and (2). Instead, subsections (1) and (2) provide

  general authority to award attorney fees for claims or defenses

  lacking substantial justification, while subsection (4) specifies the

  process and conduct for which a court may assess fees. In this



                                    12
  way, the subsections operate together to set the parameters and

  criteria for an attorney fees award. Cf. Upper Black Squirrel Creek

  Ground Water Mgmt. Dist. v. Cherokee Metro. Dist., 2015 CO 47,

  ¶ 22 (reading subsections (2) and (4) together to determine a court’s

  authority to award attorney fees under section 13-17-102). As a

  result, the limits on the court’s authority set forth in subsections (1)

  and (2) — including the criterion that the unjustified claim or

  defense was presented in a Colorado court — apply with equal force

  to subsection (4). Cf. Colo. Citizens for Ethics in Gov’t v. Comm. for

  the Am. Dream, 187 P.3d 1207, 1220 (Colo. App. 2008) (recognizing

  that section 13-17-102’s criterion that the action occur in a court of

  record in this state, which appears in subsections (1) and (2),

  applies to subsection (5)).

¶ 22   Simply put, if the limits of subsections (1) and (2) did not

  apply to subsection (4), those limits would lose any practical effect;

  a court could always award fees under subsection (4) without

  regard to those limits. We must eschew a statutory interpretation

  that robs the language of any impact. See People v. Terry, 791 P.2d
374, 376 (Colo. 1990) (“Courts should attempt to give effect to all




                                     13
  parts of a statute, and constructions that would render meaningless

  a part of the statute should be avoided.”).

¶ 23   Section 13-17-101, C.R.S. 2016, which articulates the

  legislative purpose of section 13-17-102, illustrates further that the

  limits of subsections (1) and (2) of section 13-17-102 apply to

  subsection (4). See Johnson v. People, 2016 CO 59, ¶¶ 17-18 (To

  determine the plain meaning of a statute, “[w]e read statutory words

  and phrases in context, and we construe them according to the

  rules of grammar and common usage. In addition, we must

  interpret a statute so as to effectuate the purpose of the legislative

  scheme.”) (citation omitted); City & Cty. of Denver v. Bd. of

  Assessment Appeals, 30 P.3d 177, 183 (Colo. 2001) (“We consider

  legislative declarations when construing a statute.”).

¶ 24   Section 13-17-101 provides: “The general assembly recognizes

  that courts of record of this state have become increasingly

  burdened with litigation which is straining the judicial system and

  interfering with the effective administration of civil justice.”

  (Emphasis added.) In response to this concern, “the general

  assembly hereby sets forth provisions for the recovery of attorney

  fees in courts of record when the bringing or defense of an action,


                                     14
  or part thereof . . . , is determined to have been substantially

  frivolous, substantially groundless, or substantially vexatious.” Id.

  Our supreme court has also explained that “[t]he General Assembly

  enacted section 13-17-102 because our courts are burdened with

  unnecessary litigation that interferes with the effective

  administration of civil justice.” In re Marriage of Aldrich, 945 P.2d
1370, 1378 (Colo. 1997) (emphasis added). In light of this

  legislative purpose, interpreting section 13-17-102 to authorize an

  attorney fees award based on a claim or defense presented to a

  different jurisdiction’s court would be anomalous.

¶ 25   Therefore, the district court’s order rests on an erroneous

  interpretation of the law and clashes with Kraft and Kennedy.

¶ 26   Trustees, however, do not rely on the court’s interpretation.

  Instead, they advance a different view of section 13-17-102 to

  justify the award of attorney fees incurred in the West Virginia

  action. We now turn to their contentions.

                        2.   Trustees’ Arguments

              a.   Arguments Based on Section 13-17-102

¶ 27   Trustees acknowledge that the limits of subsections (1) and (2)

  apply to a court’s authority to assess attorney fees under


                                    15
  subsection (4) of section 13-17-102. But trustees contend that,

  while subsections (1) and (2) limit in what civil action a court may

  award attorney fees (one in a Colorado court of record), those

  subsections do not limit for what action a court may award fees.

  Trustees maintain that, under section 13-17-102, “[t]here are no

  limits to ‘an action’ for which the court may award fees,” so long as

  the Colorado court enters the fees order in a Colorado case.

  Accordingly, trustees conclude that the district court here complied

  with the statute because “[i]t awarded fees in this Colorado action.”

¶ 28   By its terms, however, section 13-17-102 refers to Colorado

  courts. See also § 13-17-101; Aldrich, 945 P.2d at 1378. Trustees

  thus read the limits of subsections (1) and (2) as doing no more

  than restricting a Colorado court’s authority to award attorney fees

  to a case in that Colorado court — as opposed, presumably, to a

  Colorado court’s entering a fees order in another jurisdiction’s case

  (e.g., issuing an order in the West Virginia case). But that

  restriction is obvious and unnecessary to express, so much so that

  the limits set forth in subsections (1) and (2) would be superfluous

  under such a narrow view of their import. Again, “[w]e must avoid

  constructions that would render any words or phrases


                                    16
  superfluous[.]” Johnson, ¶ 18. To have meaning, subsections (1)

  and (2) must restrict a Colorado court’s authority to awarding

  attorney fees incurred in response to unjustified conduct occurring

  “in any civil action of any nature commenced or appealed in any

  court of record in this state.” § 13-17-102(2).

¶ 29   Trustees also point to In re Marriage of Ward, 183 P.3d 707

  (Colo. App. 2008). In that case, however, the division concluded

  that the trial court could award attorney fees under section

  13-17-102 for work done in New York that was used in a Colorado

  action. See id. at 708-09. The father employed a New York attorney

  to investigate and procure records showing that he had satisfied an

  earlier New York order to pay child support. This fact reinforced the

  father’s defense to the mother’s request for a support judgment in

  the Colorado case, which she had based on the New York order.

  See id. at 709; see also Cherry Creek Sch. Dist. No. 5 v. Voelker, 859
P.2d 805, 808-09 (Colo. 1993) (holding that the trial court had

  authority to award costs for out-of-state depositions necessary to

  prepare for the Colorado trial) (cited in Ward). Hence, Ward meshes

  well with Kraft and our analysis but does not bolster trustees’

  claim.


                                    17
¶ 30   Finally, trustees rely heavily on Leslie, decided by a division of

  this court. There, a district court in an estate matter cited section

  13-17-102 as support for awarding attorney fees incurred in actions

  before a Colorado court and a federal court. See Leslie, 886 P.2d at

  286-88. But Leslie did not specifically address a court’s authority

  to award fees incurred solely in a foreign jurisdiction. Leslie

  seemed to assume such authority existed, without discussion,

  because that was not the issue presented.

¶ 31   Instead, Leslie focused on whether a court may charge

  attorney fees against a petitioner’s share of an estate when those

  fees were incurred in defense against the petitioner’s frivolous

  litigation. See id. (recognizing that the Colorado Probate Code does

  not provide such authority). Leslie found such authority in section

  13-17-102 and drew no distinction between litigation occurring in

  the Colorado court and the federal court. (Leslie then examined the

  courts’ orders in the state and federal cases and decided that the

  actions brought in those courts were frivolous or groundless, even

  though those courts had made no such findings expressly.)

  Therefore, Leslie offers little guidance on the legal issue before us.




                                     18
¶ 32   To the extent, however, that Leslie permits a Colorado court to

  award attorney fees incurred in another jurisdiction’s case even

  where work product created for the other case was not used in

  Colorado, Leslie clashes with the plain language of section

  13-17-102 discussed above.6 Leslie is also troubling for other

  reasons:

          Leslie contradicts the sound logic that “it is ordinarily

             ‘the court in which services were rendered that should

             determine the amount of attorney fees awardable.’”

             Kraft, 122 P.3d at 1026 (quoting Lopez-Flores v. Hamburg

             Twp., 460 N.W.2d 268, 270 (Mich. Ct. App. 1990)).

          Leslie opens the door to an attorney fees award for

             conduct in a foreign action where the foreign court

             declined to — or could not — impose such sanctions.

             For instance, the record here does not show, and trustees

             do not assert, that they sought fees in West Virginia and

             complied with Fed. R. Civ. P. 11(c)(2) when doing so.

             That rule contains a safe harbor provision requiring a

  6 Leslie did not mention whether the attorney fees incurred in the
  federal action pertained to work product also used in the state
  action.

                                   19
             party to give notice that it intends to seek attorney fees

             as a sanction for a frivolous filing. Id. Opposing counsel

             may then withdraw or correct the challenged filing and

             avoid the imposition of attorney fees. Id. Given their

             apparent failure to comply with Federal Rule 11, trustees

             seek to recover in this Colorado case their attorney fees

             incurred in the West Virginia case even though the

             federal court could not have awarded those fees in that

             federal action. The Colorado legislature surely did not

             intend section 13-17-102 to authorize such a result.7

¶ 33   Consequently, to the extent Leslie conflicts with Kraft and our

  statutory analysis, we decline to follow Leslie. See City of




  7 Bruce is mistaken, however, in claiming that Fed. R. Civ. P. 11
  “preempts” a Colorado court’s authority to award attorney fees
  under section 13-17-102. Federal Rule 11 applies only to federal
  courts. Cf. McCoy v. West, 965 F. Supp. 34, 35 (D. Colo. 1997)
  (“[T]o the extent Colo.Rev.Stat. § 13–17–101 et seq. is inconsistent
  with the procedural safe-harbor provisions of Rule 11, it is
  preempted. ‘[A] federal district court in a diversity case is neither
  required, nor indeed permitted, to apply state law to a matter
  covered by a Federal Rule of Civil Procedure.’”) (citation omitted).
  Still, it would be incongruous for a Colorado court to award
  attorney fees for an action in federal court where the federal court
  could not do so.

                                    20
  Steamboat Springs v. Johnson, 252 P.3d 1142, 1147 (Colo. App.

  2010) (“We are not bound to follow a prior division’s ruling.”).

       b.      Arguments Based on District Court’s Equitable Authority

¶ 34        Trustees paid the attorney fees out of trust assets, on behalf of

  the trust. Trustees therefore maintain that the district court had

  authority to award attorney fees to trustees in order to restore trust

  assets expended in response to Bruce’s frivolous attacks:

                 If Mr. Bruce is permitted to run without
                 consequence to foreign courts to bring
                 frivolous challenges to the final decision of the
                 Colorado probate court, Colorado courts will
                 be effectively disabled from efficiently resolving
                 a trust’s final administration and protecting
                 what remains of the trust’s assets.

¶ 35        A court presiding over a probate matter certainly possesses

  equitable authority “to account for the unique circumstances of a

  particular proceeding and to ensure that parties are treated fairly

  and the decedent’s will is upheld.” Beren v. Beren, 2015 CO 29,

  ¶ 18 (citing Leslie, 886 P.2d at 287). Even so, the general rule

  remains that a court may not award attorney fees in the absence of

  a statute, court rule, or contract expressly permitting those fees.

  Allstate Ins. Co. v. Huizar, 52 P.3d 816, 820-21 (Colo. 2002). As

  explained above, section 13-17-102, on which the district court


                                         21
  here relied, did not authorize the court to award attorney fees

  incurred solely in the West Virginia case unless the West Virginia

  work product was also used in this case. And, while trustees cite

  other statutes ostensibly authorizing a probate court to award

  attorney fees, those statutes do not mention attorney fees at all.

  See §§ 15-10-302, 15-16-201, C.R.S. 2016. We cannot infer an

  exception to the general rule against attorney fees awards from

  general provisions “that do not explicitly address attorney fees.”

  Huizar, 52 P.3d at 821; see also In re Estate of Klarner, 113 P.3d
150, 157 (Colo. 2005) (holding that section 15-16-201(1) does not

  authorize an award of attorney fees to a prevailing party, even those

  fees incurred to redirect “wayward Trustees”).8

¶ 36   Finally, trustees’ premise is flawed. In fact, a party may face

  consequences for going to a foreign court with frivolous litigation

  affecting Colorado trust assets: the estate may seek an attorney fees




  8 Indeed, in In re Estate of Leslie, 886 P.2d 284, 287 (Colo. App.
  1994), cited in Beren v. Beren, 2015 CO 29, ¶ 18, the division
  determined that the probate code did not authorize the probate
  court to award the attorney fees in that case. Hence, the division
  looked to section 13-17-102.


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  award against that party from the foreign court, according to the

  statutes and rules of that jurisdiction.

                 3.   Summary and Remand Directions

¶ 37   Section 13-17-102 does not authorize a Colorado court to

  award attorney fees incurred in an action in a foreign court, unless

  work product created for use in the foreign court is also used in the

  Colorado court.

¶ 38   Neither the district court’s order nor the record clarifies,

  however, whether trustees used work product created for the West

  Virginia action in these Colorado proceedings.9 Accordingly, we

  vacate the portion of the order awarding $54,565 for attorney fees

  incurred in the West Virginia action, and we remand for the district

  court to determine whether trustees used work product created for

  the West Virginia action in these Colorado proceedings. See Kraft,
122 P.3d at 1026. The court may, but need not, hold a further


  9 Trustees contend that Bruce failed to raise this work-product
  issue adequately in the district court. But, while Bruce did not
  object to the amount of attorney fees requested for the West Virginia
  case, he did object to such fees on the ground that section
  13-17-102 does not authorize an award of those fees. In response,
  the district court explicitly addressed the extent to which the
  statute permits a fees award for the West Virginia case. Our review
  of the court’s order requires us to consider that same question.

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  hearing. If trustees used work product created for the West Virginia

  action in this case, the court shall award to trustees their attorney

  fees incurred for that work product. If not, the court shall not

  award any attorney fees incurred in the West Virginia action.

                          III.    Conclusion

¶ 39   The district court’s order, as it pertains to attorney fees

  incurred in the action before the West Virginia federal court, is

  vacated. The case is remanded for further proceedings consistent

  with this opinion.

       JUDGE WEBB and JUDGE HAWTHORNE concur.




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