BKP v. Killmer

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 wa s based, we vacate the fee order . ¶ 2 In 2018, the attorneys filed a putative class action lawsuit against the employer , a sserting 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 awar ded the attorneys “most of their requested” fees and the unopposed costs . ¶ 6 The employer separately appealed the merits judgment and the order awarding fe es, 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 conclud ed that not all of the attorneys’ statements were protected speech . Id . at ¶¶ 80 - 81 . The division therefore “r everse[d] the trial court’s order dismissing ” the case and remanded “ to the trial court to reinstate the c ase.” Id. at ¶¶ 81 -82. 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 , ¶ 6 0 ; 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 at 923 . 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 reasonablen ess 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 reve rsed. 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, w e vacate the trial court’s order awarding fees to the attorneys. JUDGE WELLING and JUDGE YUN concur.