The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY February 27, 2025

No. 23CA0675, Schulz v. Laszlo & Associates, LLC — Courts and Court Procedure — Attorney Fees — Tort Actions Dismissed Pursuant to C.R.C.P. 12(b); Civil Procedure — Amended and Supplemental Pleadings — Amendments as a Matter of Course

A majority of a division of the court of appeals concludes that

the defendants are not entitled to attorney fees under section

13-17-201, C.R.S. 2024, even though the district court granted a

C.R.C.P. 12(b)(1) motion to dismiss the plaintiff’s claims against

them. The plaintiff properly amended his complaint as a matter of

course under C.R.C.P. 15(a) to assert another claim against the

defendants, and the court later dismissed that claim on the court’s

own motion, which disentitled the defendants to attorney fees under

the plain language of the statute. Accordingly, the majority affirms

the district court’s order denying the defendants’ motion for

attorney fees. The partial dissent concludes that the defendants were

entitled to attorney fees under the statute upon entry of the court’s

order dismissing the plaintiff’s claims against them and would

reverse the court’s order denying attorney fees. COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0675 Weld County District Court No. 21CV30783 Honorable Todd Taylor, Judge

Nathan Schulz, derivatively on behalf of CLN Holdings, LLC,

Plaintiff-Appellee,

v.

Laszlo & Associates, LLC, d/b/a LaszlowLaw, Theodore E. Laszlo, Jr., and Michael J. Laszlo,

Defendants-Appellants.

ORDER AFFIRMED

Division V Opinion by JUDGE BROWN Johnson, J., concurs Taubman*, J., concurs in part and dissents in part

Announced February 27, 2025

Flanders Elsberg Herber & Dunn, LLC, Mark A. Herber, Andrew N. Dunkin, Longmont, Colorado, for Plaintiff-Appellee

McConnell Van Pelt, LLC, Michael T. McConnell, Kellsey A. Hansen, Denver, Colorado, for Defendants-Appellants

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this derivative action, defendants, Laszlo & Associates, LLC,

Theodore E. Laszlo, Jr., and Michael J. Laszlo (collectively, the

Laszlo Defendants), appeal the district court’s order denying their

motion for attorney fees under section 13-17-201, C.R.S. 2024,

after the court granted their C.R.C.P. 12(b)(1) motion to dismiss the

claims asserted against them by plaintiff, Nathan Schulz. Section

13-17-201(1) generally entitles a defendant to an award of attorney

fees when all claims against that defendant have been dismissed on

a pretrial motion filed under C.R.C.P. 12(b). But after the court

dismissed Schulz’s claims against the Laszlo Defendants, Schulz

validly amended his complaint as a matter of course under C.R.C.P.

15(a) to assert another claim against them, and the court later

dismissed that claim on its own motion. Under these

circumstances, we conclude that the Laszlo Defendants are not

entitled to their attorney fees under section 13-17-201.

Consequently, we affirm the district court’s order.

I. Background

¶2 The record establishes the following timeline of events. In

February 2019, Chase Bonner, Levi Wood, and Nathan Schulz

formed CLN Holdings, LLC (CLN) for the purpose of acquiring and

1 managing Parrott’s Sports Grill, Inc. (Parrott’s). Schulz became

Parrott’s general manager. In late 2019, CLN retained the Laszlo

Defendants to complete corporate documents converting CLN from

a limited liability company to a corporation and to provide the

company with legal advice.

¶3 In January 2020, Bonner, acting on behalf of CLN and

Parrott’s, fired Schulz. Two months later, Schulz sued Bonner,

Wood, CLN, and Parrott’s (the CLN Defendants) seeking economic

and noneconomic damages, as well as the judicial dissolution of

CLN (the CLN action). The Laszlo Defendants entered appearances

as counsel for the CLN Defendants in the CLN action.

¶4 Then, in December 2020, Schulz filed this derivative action on

behalf of CLN, asserting claims against (1) Bonner and Wood for

breach of fiduciary duty, breach of the covenant of good faith and

fair dealing, and civil conspiracy; and (2) the Laszlo Defendants for

professional negligence, breach of fiduciary duty, aiding and

abetting a breach of fiduciary duty, civil conspiracy, “respondeat

superior,” and declaratory judgment. As a result, the Laszlo

Defendants withdrew as counsel for the CLN Defendants in the CLN

action.

2 ¶5 In April 2022, the Laszlo Defendants moved to dismiss the

complaint under C.R.C.P. 12(b)(1), arguing that Schulz’s derivative

claims were not ripe for adjudication because they were based on

the alleged damages CLN would sustain in the ongoing CLN action.1

In August, the district court granted the Laszlo Defendants’

C.R.C.P. 12(b)(1) motion to dismiss the claims against them without

prejudice (August 2022 order). Notably, at that time, Schulz’s

claims against Bonner and Wood remained pending.

¶6 In September, the Laszlo Defendants moved for an award of

attorney fees under section 13-17-201 and for costs under C.R.C.P.

54(d) and section 13-16-107, C.R.S. 2024. Schulz requested and

was granted an initial extension of time to respond to the motion.

In a second motion for extension of time filed in mid-October,

Schulz advised the district court that the jury trial in the CLN

action was set to commence on October 31 and that he

“maintain[ed] his right to amend the complaint [in the derivative

action] as a matter of course under C.R.C.P. 15(a)” but needed

1 The Laszlo Defendants also moved to dismiss for failure to state a

claim under C.R.C.P. 12(b)(5), but the district court did not address that argument.

3 additional time to “complete the trial and assess the complete scope

of any amendments to be filed thereafter.” Schulz asked the court

for “an extension of time to so amend and/or a stay until after the

[CLN action] concludes” and a further extension of time to respond

to the attorney fees motion, noting that if he were to amend the

complaint, the attorney fees motion “would be moot.” The Laszlo

Defendants opposed the motion, arguing in relevant part that

Schulz was not entitled to amend his complaint after the court

dismissed the claims against them.

¶7 Meanwhile, the jury in the CLN action found in favor of Schulz

and against Bonner and Wood on all claims and counterclaims and

awarded Schulz a total of five million dollars in damages, which

included punitive damages based on findings that Bonner and

Wood “acted in a fraudulent, malicious or willful and wanton

manner.” Schulz advised the district court of this development in a

“supplement” to the second motion for extension of time. The court

granted the second motion, checking a box in Schulz’s proposed

order that read “Plaintiff is GRANTED an extension of time up to

and including November 29, 2022, to respond to [the Laszlo]

Defendants’ Motion for Attorney Fees and Bill of Costs and to file an

4 Amended Complaint Under C.R.C.P. 15(a).” The Laszlo Defendants

moved to reconsider, essentially rearguing that Schulz was not

entitled to amend his complaint and asserting that, despite the

jury’s verdict, the CLN action “will likely remain unresolved for

many years.”

¶8 On November 29, Schulz filed an amended complaint that

incorporated the jury’s findings from the CLN action, reasserted

multiple claims against Bonner and Wood, and asserted an

amended declaratory judgment claim against all defendants —

including the Laszlo Defendants. Among other things, Schulz

sought declarations that the fee agreement between CLN and the

Laszlo Defendants was unenforceable, that the purpose of the

engagement was to “accomplish an unlawful act,” and that the

Laszlo Defendants owed “special obligations” to CLN and Schulz. In

response, the Laszlo Defendants filed a “notice of position” in which

they advised the court that, “unless ordered otherwise, [the Laszlo

Defendants] will not file a responsive pleading until the [motion to

reconsider] is ruled upon” and that “any responsive pleading will be

a motion to dismiss.”

5 ¶9 Also on November 29, Schulz filed an opposition to the Laszlo

Defendants’ motion for attorney fees and costs arguing, among

other things, that his amended complaint rendered the motion

moot.

¶ 10 On March 16, 2023, following the appointment of a receiver for

CLN in the CLN action, the district court ordered the parties to

show cause why this action should not be dismissed for lack of

standing. The following month, the district court entered four

orders. First, it dismissed the entire action as to all defendants

because a receiver had been appointed for CLN, thereby divesting

Schulz of his ability to pursue derivative claims on behalf of CLN.

Second, it denied the Laszlo Defendants’ motion to reconsider as

moot. Third, it granted the Laszlo Defendants’ bill of costs. Fourth,

it denied the Laszlo Defendants’ motion for attorney fees, explaining

that “[t]his case has been dismissed without prejudice on the

court’s own motion. Consequently, section 13-17-201 does not

apply . . . .” This appeal followed.

6 II. Analysis

¶ 11 The Laszlo Defendants contend that the district court erred by

(1) allowing Schulz to amend his complaint and (2) denying their

request for attorney fees under section 13-17-201. We disagree.2

A. Propriety of Amended Complaint

¶ 12 The Laszlo Defendants contend that the district court erred by

granting Schulz leave to amend his complaint to reassert a

declaratory judgment claim against them. We conclude that Schulz

was entitled to amend his complaint as a matter of course under

C.R.C.P. 15(a).

1. Standard of Review

¶ 13 We review a trial court’s interpretation of the Colorado Rules of

Civil Procedure de novo. Schaden v. DIA Brewing Co.,

,

2 We ordered the parties to file supplemental briefs addressing

(1) whether the Laszlo Defendants were entitled to an award of attorney fees under section 13-17-201, C.R.S. 2024, once the district court dismissed all claims against them under C.R.C.P. 12(b), even though a final judgment had not been entered; and (2) whether the district court’s initial grant of the Laszlo Defendants’ motion to dismiss based on lack of ripeness was a proper basis for an award of attorney fees under section 13-17-201, even though the Laszlo Defendants did not show that Schulz’s complaint was baseless. We consider the parties’ supplemental arguments in our disposition of the appeal.

7 ¶ 32. We interpret the rules according to their commonly

understood and accepted meanings, applying well-settled principles

of statutory construction.

We read the rules as a whole, giving

consistent, harmonious, and sensible effect to all of their parts and

avoiding constructions that would render any words or phrases

superfluous or lead to illogical or absurd results. Id.; accord

Willhite v. Rodriguez-Cera,

. We also construe the

rules “liberally to effectuate their objective to secure the just,

speedy, and inexpensive determination of every case and their

truth-seeking purpose.” Maslak v. Town of Vail,

(quoting DCP Midstream, LP v. Anadarko Petroleum Corp.,

); see also C.R.C.P. 1.

2. Applicable Law

¶ 14 Under C.R.C.P. 15(a), a party may amend a pleading once as a

matter of course before a responsive pleading is filed. Gandy v.

Williams,

. After a responsive pleading is filed,

a party may amend a pleading “only by leave of court or by written

consent of the adverse party.” C.R.C.P. 15(a). Because requests to

amend are to be liberally granted, “some justification is required for

8 refusal.” Wilcox v. Reconditioned Off. Sys. of Colo., Inc.,

(Colo. App. 1994).

¶ 15 A motion to dismiss is not considered a responsive pleading

for purposes of C.R.C.P. 15(a). Id.; see also C.R.C.P. 7(a) (defining

pleadings); Schaden, ¶ 36 (“[I]t is undisputed that a motion to

dismiss is not a responsive pleading . . . .”); Gandy, ¶ 10 (noting

that the defendants’ motion to dismiss did not terminate the

plaintiff’s right to amend). Thus, even if a court grants a motion to

dismiss, an amendment to the complaint may be allowed. See

Davis v. Paolino,

(Colo. App. 2001) (the plaintiff

should have been allowed to file a non-futile amended complaint

against one defendant even after the court dismissed all claims

against all defendants).

¶ 16 It is only when a final judgment is entered before a responsive

pleading is filed that the “absolute right to amend the complaint as

a matter of course is lost.” Wilcox,

; see Schaden,

¶ 2 (“[A] final judgment cuts off a plaintiff’s right to file an amended

complaint as a matter of course under C.R.C.P. 15(a).”). After a

final judgment is entered, a party wishing to amend a pleading

must seek relief from the judgment under C.R.C.P. 59 or 60 and file

9 a motion requesting leave to amend or indicating the adverse

party’s consent to the amendment. Schaden, ¶ 39; see Est. of Hays

v. Mid-Century Ins. Co.,

(Colo. App. 1995) (“Once

final judgment has entered, an amendment to a pleading under

C.R.C.P. 15(a) should not be allowed unless the judgment is set

aside or vacated.”). A final judgment is one that ends the particular

action in which it is entered, leaving nothing further for the court

pronouncing it to do to completely determine the rights of the

parties involved in the proceeding. Schaden, ¶ 46.

3. Schulz Was Entitled to File an Amended Complaint as a Matter of Course under C.R.C.P. 15(a)

¶ 17 None of the defendants filed an answer to Schulz’s original

complaint. And the Laszlo Defendants concede that a motion to

dismiss is not a responsive pleading that cuts off a plaintiff’s right

to amend a complaint as a matter of course under C.R.C.P. 15(a).

See Schaden, ¶ 36. As a result, unless a final judgment had been

entered in the case, Schulz was entitled to amend his complaint.

See id. at ¶ 39; Wilcox,

.

¶ 18 The Laszlo Defendants argue that the August 2022 order

constituted a final judgment because it “resolved the rights of [the

10 Laszlo Defendants] and Schulz, leaving no further issues for the

District Court’s judicial adjudication.” But to constitute a final

judgment in an action involving multiple claims against multiple

parties, an order (or a combination of orders) must fully and finally

resolve all claims against all parties. See Wolf v. Brenneman,

, ¶ 10 (“A judgment is typically not ‘final’ until the court has

ruled on all outstanding claims.”); Kempter v. Hurd,

(Colo. 1986) (recognizing that when multiple claims and

parties are joined in one action, “claims adjudicated early in the

litigation must await the final determination of all issues, as to all

parties, before a final and appealable judgment can be obtained”);

Harding Glass Co. v. Jones,

(Colo. 1982)

(recognizing “the general rule that an entire case must be decided”

before a judgment is final). Because the August 2022 order did not

resolve all claims against all parties, it was not a final judgment.

¶ 19 Notably, C.R.C.P. 54(b) permits a court in an action involving

multiple claims against multiple parties to “direct the entry of a

final judgment as to one or more but fewer than all of the claims or

parties” when certain conditions are satisfied. Certification under

C.R.C.P. 54(b) operates as “an exception to the general rule that an

11 entire case must be decided” before a judgment is final. Harding

Glass Co.,

; see also Grear v. Mulvihill,

(Colo. App. 2009) (involving an appeal following a trial

court’s C.R.C.P. 54(b) certification of its order dismissing all claims

against one defendant under C.R.C.P. 12(b)(5)); Est. of Harper v.

Denver Health & Hosp. Auth.,

(Colo. App. 2006)

(same). But the Laszlo Defendants did not seek or obtain C.R.C.P.

54(b) certification of the August 2022 order.

¶ 20 We are not persuaded by the Laszlo Defendants’ argument

that the supreme court’s decision in Schaden commands a different

result. There, the trial court dismissed the plaintiff’s claims for lack

of standing. Schaden, ¶¶ 9, 11. After the plaintiff filed an amended

complaint without seeking relief from the judgment under C.R.C.P.

59 or 60, the trial court struck the pleading, reasoning that its prior

order dismissing the case was a final judgment that cut off the

plaintiff’s right to file an amended complaint. Id. at ¶¶ 12, 25-26.

¶ 21 The supreme court first recognized that C.R.C.P. 15(a)

provides a plaintiff the right to amend a complaint once as a matter

of course at any time before a responsive pleading is filed and that a

motion to dismiss is not a responsive pleading. Id. at ¶¶ 25-26.

12 But the court rejected the plaintiff’s argument that it maintained

the right to amend its complaint as a matter of course “after

judgment enters following the granting of a motion to dismiss an

action” because adopting that interpretation would essentially grant

the plaintiff “a right to afford itself relief from a judgment at any

time, without needing to request such relief from the court as

contemplated by C.R.C.P. 59 and C.R.C.P. 60.” Id. at ¶ 38. The

court reasoned that the only way to give effect to C.R.C.P. 15(a)

without rendering C.R.C.P. 59 and 60 meaningless was to “conclude

that once a judgment enters and becomes final, a plaintiff no longer

has the right to file an amended complaint as a matter of course

under C.R.C.P. 15(a).” Id. at ¶ 39. “Rather, such a plaintiff must

seek relief from the judgment under C.R.C.P. 59 or C.R.C.P. 60 and

must obtain either leave to amend from the court or written consent

to amend from the defendant.” Id.

¶ 22 The supreme court further held that the trial court’s order

dismissing the case for lack of standing was a final judgment. Id. at

¶¶ 46-49. It acknowledged that the dismissal was “without

prejudice,” but it reasoned that the trial court had concluded that

the plaintiff had not suffered an injury by the alleged bid-rigging

13 scheme. Id. at ¶¶ 47-48. Once the trial court found that the

plaintiff lacked standing, it was “compelled to dismiss the case as it

lacked jurisdiction to hear it. At that point, there remained nothing

for the court to decide and nothing further for the court to

pronounce.” Id. at ¶ 48. Thus, the supreme court concluded that

the plaintiff did not have the right to file an amended complaint as a

matter of course. Id. at ¶ 51.3

¶ 23 The Laszlo Defendants argue that Schaden is dispositive. They

note that the order entered in Schaden dismissed the plaintiff’s

claims without prejudice for lack of subject matter jurisdiction and

yet the supreme court concluded that the order was a final

judgment that cut off the plaintiff’s right to amend its complaint as

a matter of course under C.R.C.P. 15(a). They urge us to view the

August 2022 order — dismissing Schulz’s claims against them

without prejudice based on a jurisdictional defect — the same way.

See DiCocco v. Nat’l Gen. Ins. Co.,

(Colo. App.

3 Even so, for reasons not relevant to our disposition of this appeal,

the supreme court remanded the case to the trial court to reinstate the plaintiff’s amended complaint. Schaden v. DIA Brewing Co.,

.

14 2006) (“A court lacks subject matter jurisdiction to decide an issue

that is not ripe for adjudication.”).

¶ 24 But we see a key distinction between Schaden and this case.

In Schaden, the trial court’s order dismissed the entire action — all

the plaintiff’s claims against all the defendants. Schaden, ¶¶ 9, 11.

In other words, the order in Schaden ended the action and left

“nothing further for the court . . . to do in order to completely

determine the rights of the parties involved in the proceeding.”

at ¶ 46 (quoting In re Water Rts. of Elk Dance Colo., LLC,

(Colo. 2006)). Under such circumstances, we understand

why the supreme court concluded the order was final, even though

it was not a dismissal on the merits, see In re Estate of Murphy,

(Colo App. 2008) (“It is well-settled in Colorado

that a dismissal for lack of subject matter jurisdiction is not a

judgment on the merits . . . .”), and was without prejudice,

Schaden, ¶ 47 (Although a trial court’s designation of an order to

dismiss as “without prejudice” is not dispositive of finality, such a

designation is “relevant to the determination of finality.”); Brody v.

Bock,

(Colo. 1995) (Ordinarily, a dismissal

without prejudice “does not constitute a final judgment for

15 purposes of appeal because the factual and legal issues underlying

the dispute have not been resolved.”).

¶ 25 But the August 2022 order did not dismiss the entire action.

After the order was entered, Schulz still had unresolved claims

pending against other defendants. The district court had more to

do to determine the rights of the parties involved in the proceeding.

See Schaden, ¶ 46. Consequently, absent a C.R.C.P. 54(b)

certification, the August 2022 order was not a final judgment, and

Schulz did not have to move under C.R.C.P. 59 or 60 to set it aside

or seek leave to file an amended complaint. Instead, Schulz

maintained his right to amend his complaint as a matter of course

under C.R.C.P. 15(a). As a result, we perceive no error by the

district court in accepting the amended complaint.4

B. Recovery of Attorney Fees under Section 13-17-201

¶ 26 The Laszlo Defendants contend that the district court erred by

denying their motion for attorney fees under section 13-17-201.

4 Because we conclude that Schulz maintained a right to amend his

complaint as a matter of course under C.R.C.P. 15(a), we need not address the Laszlo Defendants’ additional arguments that (1) the district court abused its discretion by granting Schulz leave to amend and denying as moot their motion to reconsider or (2) the amendment was futile.

16 The court reasoned that the Laszlo Defendants were not entitled to

attorney fees under the statute because it had dismissed the case

(including the claim against the Laszlo Defendants added by the

amended complaint) on its own motion. We generally agree with

the district court.

1. Standard of Review and Principles of Statutory Construction

¶ 27 Whether a statute mandates an award of attorney fees is a

question of statutory interpretation that we review de novo.

Crandall v. City of Denver,

(Colo. 2010). Our

primary goal in interpreting a statute is to give effect to the

legislature’s intent as reflected in the plain and ordinary meanings

of the words and phrases used. Nieto v. Clark’s Mkt., Inc.,

, ¶ 12. We read the statute as a whole, giving consistent,

harmonious, and sensible effect to all its parts.

And we avoid

constructions that would render any words or phrases superfluous

or lead to illogical or absurd results. Elder v. Williams,

; see also §§ 2-4-101, -201, C.R.S. 2024.

¶ 28 When the language of a statute is clear and unambiguous, we

enforce it as written. Nieto, ¶ 12. Only if a statute is ambiguous —

“that is, reasonably susceptible to more than one interpretation” —

17 do we turn to other interpretive aids to discern the legislature’s

intent. Id. at ¶ 13. These aids include legislative history, the end to

be achieved by the statute, and the consequences of a given

construction. Id.; see also § 2-4-203, C.R.S. 2024.

2. Applicable Law

¶ 29 With respect to recovery of attorney fees, Colorado follows the

American Rule, “which requires each party in a lawsuit to bear its

own legal expenses.” Bernhard v. Farmers Ins. Exch.,

(Colo. 1996). Consequently, absent a statute, court

rule, or contract that provides otherwise, attorney fees are not

recoverable by the prevailing party.

Although there are several

exceptions to the general rule, we narrowly construe those

exceptions, resolving any doubt against an interpretation of the

exception that would expand the circumstances under which

attorney fees can be recovered. Sifton v. Stewart Title Guar. Co.,

(Colo. 2011); see Crandall,

(recognizing that section 13-17-201 limits application of the

“long-established American Rule precluding the award of attorney

fees to prevailing litigants” and must be narrowly construed).

18 ¶ 30 Section 13-17-201(1) is one exception to the American Rule,

mandating an award of attorney fees to a defendant who

successfully moves to dismiss a tort action under C.R.C.P. 12(b).

The statute provides in pertinent part as follows:

In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other persons, 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.

§ 13-17-201(1). An award of fees under the statute is mandatory.

Colo. Special Dists. Prop. & Liab. Pool v. Lyons,

.

¶ 31 We are hardly the first division to encounter this statute.

Other divisions of this court have interpreted section 13-17-201 in

the following relevant ways:

• A defendant is entitled to recover attorney fees even when

the plaintiff has pleaded both tort and non-tort claims if

“the essence of the action was one in tort.” Castro v. Lintz,

.

• Because the statute authorizes an award of attorney fees

only when an “action” is dismissed, it does not apply if a

19 defendant obtains dismissal of some, but not all, of the

plaintiff’s claims. Sotelo v. Hutchens Trucking Co.,

(Colo. App. 2007). In other words, “dismissal of

less than the entire ‘action’ is insufficient to trigger an

award under the plain language of the statute.” Id.; see

Lyons, ¶ 62 (because the court stayed one claim rather than

dismissing it, defendant was not entitled to attorney fees).5

• Still, by using the singular term “defendant,” the statute

“necessarily applies to each defendant who has an action

5 The Laszlo Defendants’ motion to dismiss did not substantively

address Schulz’s claim for declaratory judgment. Rather, in a footnote, the Laszlo Defendants argued only that, because the other claims against them fail, “the declaratory judgment also fails as there is no forward-looking need to determine the rights and obligations of the parties.” The district court did not mention the declaratory judgment claim in the August 2022 order of dismissal. Moreover, the basis for dismissal — that Schulz’s claims were not ripe because the damages he claimed depended on the outcome of the CLN action — would not apply to a declaratory judgment claim seeking no damages. Thus, we are skeptical that the court properly dismissed the declaratory judgment claim. If that claim remained, the Laszlo Defendants would not be entitled to recover attorney fees under section 13-17-201. See Sotelo v. Hutchens Trucking Co.,

(Colo. App. 2007). But because this issue was not well developed in the district court, and we otherwise conclude that the Laszlo Defendants are not entitled to their attorney fees under the statute, we do not rely on this as an alternative basis to affirm the court’s order.

20 against it dismissed” under C.R.C.P. 12(b) and “may apply

to one defendant even though claims are still pending as to

other defendants at the time of dismissal.” Lyons, ¶ 60; see

Smith v. Town of Snowmass Village,

(Colo. App. 1996) (because all claims against one party had

been dismissed, that party was entitled to attorney fees).6

• The statute authorizes an award of attorney fees only if all

the plaintiff’s claims are dismissed “on motion of the

defendant prior to trial under rule 12(b).” Sotelo,

. The statute does not authorize recovery if even one

of the plaintiff’s claims is dismissed, rejected, or resolved by

another procedural mechanism or for another reason. See

6 Neither Colorado Special Districts Property & Liability Pool v. Lyons,

, nor Smith v. Town of Snowmass Village,

(Colo. App. 1996), explains whether the trial courts in those cases had certified their dismissal orders as final under C.R.C.P. 54(b) or had entered final judgment on the outstanding claims, but we presume that one or the other event occurred to give the appellate court jurisdiction over the appeals. See § 13-4-102(1), C.R.S. 2024 (granting the court of appeals jurisdiction “over appeals from final judgments”); Woznicki v. Musick,

(Colo. App. 2004) (the court of appeals “has jurisdiction to consider an appeal only from a final judgment”), aff’d,

(Colo. 2006); Musick,

(A “ruling that is subject to C.R.C.P. 54(b) certification but is not yet certified does not constitute a final judgment.”).

21

(the trial court correctly declined to award attorney fees

where the parties stipulated to dismiss the plaintiff’s breach

of contract claim); Jaffe v. City & Cnty. of Denver,

(Colo. App. 2000) (because the plaintiff’s

claim was resolved on summary judgment, the

defendant was not entitled to attorney fees despite

successful dismissal of state law tort claims); First Interstate

Bank of Denver, N.A. v. Berenbaum,

(Colo. App. 1993) (because the plaintiff’s fraud claim was

resolved on summary judgment, the defendant was not

entitled to attorney fees despite successful dismissal of

another tort claim).

3. The Laszlo Defendants Are Not Entitled to Attorney Fees under Section 13-17-201

¶ 32 With the preceding legal principles in mind, we turn to the

novel question before us: Is a defendant entitled to recover attorney

fees under section 13-17-201 after successfully moving to dismiss

all the plaintiff’s claims against it under C.R.C.P. 12(b), when the

plaintiff later amends the complaint to assert a new claim against

22 the defendant, and that claim is not dismissed on the defendant’s

C.R.C.P. 12(b) motion to dismiss? The answer is no.

¶ 33 It is undisputed that Schulz filed tort claims against the Laszlo

Defendants and that, notwithstanding the declaratory judgment

claim, “the essence of the action was one in tort.” Castro, ¶ 16.

The Laszlo Defendants also successfully obtained dismissal of all of

Schulz’s claims against them on a C.R.C.P. 12(b) motion filed before

trial. See § 13-17-201(1); Sotelo,

. Had the status

of the claims against the Laszlo Defendants remained the same

until entry of final judgment, they would have been entitled to

recover their attorney fees under section 13-17-201. But as we

have explained, the August 22 order was not a final judgment, and

the status of the case changed.

¶ 34 Recall the following relevant sequence of events that followed

the August 2022 order:

• Claims remained pending against the other defendants,

which did not necessarily prevent the Laszlo Defendants

from recovering attorney fees under section 13-17-201 but

did prevent entry of a final judgment. See supra Part II.A.3.

23 • Schulz filed an amended complaint as a matter of course

under C.R.C.P. 15(a), reasserting a claim for declaratory

judgment against the Laszlo Defendants.

• The Laszlo Defendants did not file an answer or move to

dismiss the amended complaint, electing instead to file a

notice advising the court that, “unless ordered otherwise,”

they “will not file a responsive pleading.”

• The court ordered the parties to show cause why it should

not dismiss the case because a receiver had been appointed

for CLN, depriving Schulz of standing to assert derivative

claims. After considering the parties’ responses to the show

cause order, the court dismissed the action.

¶ 35 Because the Laszlo Defendants did not file, and the district

court did not grant, a motion under C.R.C.P. 12(b) to dismiss the

last claim asserted against them in the amended complaint, they

are not entitled to recover their attorney fees under the plain

language of section 13-17-201. See Elder, ¶ 18 (when the language

of the statute is clear, we enforce it as written). Said another way,

because the court dismissed the last claim against the Laszlo

Defendants for lack of standing on its own motion, the “action” was

24 not “dismissed on motion of the defendant prior to trial under

[C.R.C.P.] 12(b).” § 13-17-201.

¶ 36 The Laszlo Defendants contend that they became entitled to

attorney fees under the statute because Schulz “did not seek post-

judgment relief, timely leave to amend, [or] file an appeal” of the

August 2022 order. This argument presumes that the August 2022

order was a final judgment from which Schulz could have sought

postjudgment relief or appealed, a premise we have already rejected.

See supra Part II.A.3.

¶ 37 The Laszlo Defendants also argue, and the partial dissent

likewise reasons, that they were entitled to attorney fees essentially

the moment the August 2022 order was entered because the statute

does not require entry of a final judgment. True, the statute does

not expressly require “entry of a final judgment,” see § 13-17-201,

and we do not add words to the statute, see People v. Diaz,

. But until a final judgment was entered, the dismissal

order was interlocutory, and the status of the case was subject to

change. See Pearson v. Dist. Ct.,

(Colo. 1996) (“A

court that makes a decision has the power to reconsider it, so long

as the case is within its jurisdiction.” (quoting 1B James W. Moore

25 & Jo Desha Lucas, Moore’s Federal Practice ¶ 0.404[4.-1], at II-2 (2d

ed. 1995))); USIC Locating Servs. LLC v. Project Res. Grp. Inc.,

, ¶ 26 (recognizing that, after the trial court dismissed a

complaint, “it later recognized that its actions were premature” and

properly issued orders allowing discovery and further pleadings); In

re Marriage of Cardona,

(Colo. App. 2010) (“We

acknowledge that the trial court is free to revise an interlocutory

order . . . .”), aff’d on other grounds,

.7

¶ 38 Interpreting the statute as the Laszlo Defendants and the

partial dissent advocate — to award a defendant fees even if a

plaintiff properly asserts a new claim that is resolved by means

other than the defendant’s C.R.C.P. 12(b) motion — not only ignores

the plain language of the statute, but it also cannot be squared with

our precedents. Several divisions of this court have held that, even

after a defendant has successfully moved to dismiss all of a

plaintiff’s claims under C.R.C.P. 12(b) and has already been

7 Notably, the procedure for seeking fees under section 13-17-201 is

a postjudgment procedure. C.R.C.P. 121, section 1-22(2) applies to requests for “awards of fees made to the prevailing party pursuant to . . . statute” and provides that the party seeking fees shall file a motion for such fees “within [twenty-one] days of entry of judgment.” (Emphasis added.)

26 awarded attorney fees under section 13-17-201, if any of the

plaintiff’s claims are later restored, the defendant loses their

entitlement to attorney fees under the statute. See Lopez v. City of

Grand Junction,

(declining the defendant’s

request for attorney fees under section 13-17-201 because the

division reversed the trial court’s dismissal of one claim); Rector v.

City & Cnty. of Denver,

(Colo. App. 2005)

(“[B]ecause of our conclusion that the declaratory and injunctive

relief claim was wrongly dismissed, defendants cannot recover their

attorney fees under [section] 13-17-201.”); Sundheim v. Bd. of Cnty.

Comm’rs,

(Colo. App. 1995) (Because the

division restored one of the plaintiff’s four claims, “[section]

13-17-201 is not presently available as a basis for an award of

attorney fees.”), aff’d,

(Colo. 1996).

¶ 39 If a defendant’s entitlement to attorney fees under section

13-17-201 can be lost after entry of a final judgment when even one

of the plaintiff’s claims is revived on appeal, we see no reason why a

defendant cannot similarly lose that entitlement when a plaintiff

properly reasserts a claim before entry of a final judgment.

Although the partial dissent correctly notes that these cases

27 involved appeals in which motions to dismiss were at least partly

reversed and claims were restored, the rationale animating these

decisions applies with equal or greater force to the facts before us.

¶ 40 For these reasons, we conclude that the district court did not

err by denying the Laszlo Defendants’ request for attorney fees

under section 13-17-201.

C. Appellate Attorney Fees

¶ 41 Schulz requests appellate attorney fees under C.A.R. 38,

arguing that the Laszlo Defendants’ appeal is frivolous. An appeal

may be frivolous as filed or as argued. Averyt v. Wal-Mart Stores,

Inc.,

. An appeal is frivolous as filed when the

district court’s judgment “was so plainly correct and the legal

authority contrary to appellant’s position so clear that there is

really no appealable issue.”

(quoting Castillo v. Koppes-Conway,

(Colo. App. 2006)). An appeal is frivolous as

argued when the appellant commits misconduct in arguing the

appeal.

¶ 42 Although the Laszlo Defendants have not prevailed, we do not

perceive their arguments to be frivolous, nor have they committed

misconduct. We thus decline to award appellate attorney fees.

28 III. Disposition

¶ 43 We affirm the district court’s order.

JUDGE JOHNSON concurs.

JUDGE TAUBMAN concurs in part and dissents in part.

29 JUDGE TAUBMAN, concurring in part and dissenting in part.

¶ 44 I respectfully dissent from Part II.B of the majority’s opinion

because I disagree with the majority’s conclusion that Laszlo &

Associates, LLC, Theodore E. Laszlo, Jr., and Michael J. Laszlo

(collectively, the Laszlo Defendants) are not entitled to attorney fees

under section 13-17-201, C.R.S. 2024.1 However, I concur with the

majority’s conclusion in Part II.A that Schulz was entitled to file an

amended complaint as a matter of course under C.R.C.P. 15(a) and

the majority’s conclusion in Part II.C that Schulz is not entitled to

appellate attorney fees.

¶ 45 Section 13-17-201(1) provides in pertinent part as follows:

In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other persons, 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.

(Emphasis added.)

1 I note that Schulz does not contend that the Laszlo Defendants

should not have been entitled to attorney fees under section 13-17- 201, C.R.S. 2024, because the district court erred in dismissing his claims on the basis of ripeness, and had it not done so, the Laszlo Defendants clearly would not have been entitled to an award of attorney fees.

30 ¶ 46 Relying on the plain language of the statute, I conclude that

neither a final judgment nor a C.R.C.P. 54(b) certification is

necessary to entitle the Laszlo Defendants to an award of attorney

fees. The statutory language contains no words that indicate a final

judgment is required. We cannot add words or requirements to the

statute that the General Assembly did not intend. People v. Diaz,

,

.

¶ 47 Although I interpret section 13-17-201(1) as unambiguous,

the General Assembly’s intent is supported by examining other

statutes that contain final judgment requirements. See § 5-19-213,

C.R.S. 2024 (obtaining satisfaction of surety bond); § 10-3-528,

C.R.S. 2024 (claims by holders of voidable rights); § 13-17-202,

C.R.S. 2024 (offer of settlement); § 31-12-117, C.R.S. 2024 (voiding

annexation). These statutes demonstrate that when the General

Assembly intends that a final judgment is a necessary predicate for

a statute to apply, it knows how to say so.

¶ 48 Because a final judgment is not required to be entitled to fees

under section 13-17-201, I conclude that the Laszlo Defendants are

entitled to their reasonable attorney fees incurred up until the

dismissal of the claims against them in the August 2022 order.

31 ¶ 49 I also conclude that a complaint need not be baseless to

warrant an award of attorney fees under section 13-17-201. As

noted above, we cannot add requirements to a statute. Because the

General Assembly did not include a statutory requirement that the

complaint be dismissed as baseless, we cannot do so. Crow v.

Penrose-St. Francis Healthcare Sys.,

(Colo. App.

2011) (“In several instances, fees have been awarded where the

action has been dismissed under C.R.C.P. 12(b)(1) because of a lack

of personal or subject matter jurisdiction without any mention of

the merits of the claims being asserted.”).

¶ 50 Moreover, another division of this court concluded that, by

using the term “defendant” in the singular, the statute applies to

each defendant who has an action against it dismissed pursuant to

C.R.C.P. 12(b). Colo. Special Dists. Prop. & Liab. Pool v. Lyons,

,

. Therefore, the statute can apply

to one defendant even though claims are still pending as to other

defendants at the time of dismissal.

Thus, I conclude that this

interpretation does not require a final judgment to be entered before

a defendant is entitled to attorney fees under the statute. Here,

while claims remained pending against other defendants, all the

32 claims against the Laszlo Defendants were dismissed in the August

2022 order. Consequently, the Laszlo Defendants were entitled to

attorney fees under section 13-17-201.

¶ 51 Further, section 13-17-201(1) authorizes an award of attorney

fees when an “action is dismissed on motion of the defendant prior

to trial under rule 12(b).” Therefore, a division of this court

concluded that the “statute does not authorize recovery if a

defendant obtains dismissal of some, but not all, of the plaintiff’s

tort claims” or if the plaintiff’s tort claims are rejected for reasons

other than dismissal under C.R.C.P. 12(b). Sotelo v. Hutchens

Trucking Co.,

(Colo. App. 2007). Here, all of

Schulz’s claims against the Laszlo Defendants were dismissed by

the August 2022 order. It was not until Schulz later filed his

amended complaint that he asserted a new claim. Therefore,

because all the claims against the Laszlo Defendants were

dismissed by the August 2022 order, they were entitled to attorney

fees under section 13-17-201.

¶ 52 Finally, cases in which divisions of this court reversed an

award of attorney fees under section 13-17-201 because some or all

of the plaintiff’s claims were later restored on appeal are

33 distinguishable. In those cases, motions to dismiss were reversed

in whole or in part, thus eliminating the basis for an award of

attorney fees under section 13-17-201. In contrast, this case does

not involve an appeal in which claims were restored, but, rather,

the dismissal of all claims against the Laszlo Defendants under

Rule 12(b) and the subsequent amendment of the complaint to add

a new claim against them. Cf. Lopez v. City of Grand Junction,

,

, 373 (declining the defendant’s request

for attorney fees under section 13-17-201 because the division

reversed the trial court’s dismissal of one claim); Rector v. City &

Cnty. of Denver,

(Colo. App. 2005) (“[B]ecause

of our conclusion that the declaratory and injunctive relief claim

was wrongly dismissed, defendants cannot recover their attorney

fees under [section] 13-17-201.”); Sundheim v. Bd. of Cnty.

Comm’rs,

(Colo. App. 1995) (Because the

division restored one of the plaintiff’s four claims, “[section] 13-17-

201 is not presently available as a basis for an award of attorney

fees.”), aff’d,

(Colo. 1996).

¶ 53 Accordingly, I would reverse the district court’s order denying

the Laszlo Defendants attorney fees under section 13-17-201.

34