Thompson v. United Securities Alliance, Inc , 433 P.3d 50 ( 2016 )

COLORADO COURT OF APPEALS 2016COA128
Court of Appeals No. 15CA0964
City and County of Denver District Court No. 09CV7321
Honorable Michael A. Martinez, Judge
Mark L. Thompson and Rosalin Rogers,
Plaintiffs-Appellants,
v.
United Securities Alliance, Inc.,
Defendant,
and concerning Catlin Insurance Company (UK) Ltd., Garnishee,
Appellee.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE HARRIS
Ashby, J., concurs
Webb, J., concurs in part and dissents in part
Announced September 8, 2016
Sherman & Howard L.L.C., Christopher R. Mosley, Jennifer M. Morris, Denver,
Colorado, for Plaintiff-Appellant
Gordan & Rees LLP, John R. Mann, Denver, Colorado, for Appellee
¶1 Plaintiffs Mark L. Thompson and Rosalin Rogers obtained a
judgment against United Securities Alliance, Inc., and then
instituted garnishment proceedings against United’s insurer,
defendant Catlin Insurance Company (UK) Ltd. The district court
deducted from the policy limit the amount of attorney fees incurred
by Catlin in defending the underlying arbitrations against United,
and entered judgment for plaintiffs for the remainder of the policy.
¶2 On appeal, plaintiffs contend the district court erred in its
determination of reasonable attorney fees and in declining to award
pre- and post-judgment interest. Whether prejudgment interest can
be awarded in a garnishment proceeding is an unresolved issue in
Colorado. We affirm.
I. Background
¶3 Catlin issued a liability insurance policy to United, covering
claims that might arise from United’s business as a securities
broker. The policy allows Catlin to deduct from the policy’s liability
limit the “reasonable and necessary fees and costs incurred . . . in
the defense of a Claim.”
1
¶4 Plaintiffs received a damages award in an arbitration
proceeding against United, which the district court confirmed. To
collect on this judgment, plaintiffs then served a writ of
garnishment action on Catlin as United’s insurer.
¶5 In an October 2010 order, the district court ordered Catlin to
pay the damages award and found that Catlin could deduct “zero”
defense fees and costs from the policy’s limits. According to the
district court, the heavily redacted invoices submitted by Catlin
failed to establish that the fees were “reasonable and necessary.”
¶6 On appeal, a division of this court affirmed the liability
judgment, but remanded for the district court to determine the
amount of expenses that Catlin had reasonably incurred in the
arbitration, to deduct that amount from the $1 million policy limit,
and to order Catlin to pay the plaintiffs, from the remaining policy
limit, the amounts due under the judgment. Thompson v. Catlin
Ins. Co. (UK) Ltd., slip op. at 14 (Colo. App. No. 10CA2554, Feb. 12,
2012) (not published pursuant to C.A.R. 35(f)) (Thompson I).
¶7 On remand, the district court found that Catlin had
reasonably incurred fees and costs but, faced with the same heavily
2
redacted invoices (which it found largely “indiscernible”), the court
calculated Catlin’s expenses based on the amount of fees incurred
by plaintiffs’ counsel in the underlying arbitration. Using this
method, the court found that Catlin could deduct $320,000 in
attorney fees from the policy limits.
¶8 Catlin again appealed. A division of this court reversed a
second time, concluding that the district court’s order did not
include sufficient findings of facts to support its determination.
Thompson v. Catlin Ins. Co. (UK) Ltd., slip op. at 8 (Colo. App. No.
13CA2037, Oct. 16, 2014) (not published pursuant to C.A.R. 35(f))
(Thompson III).1
¶9 Before recalculating the reasonable amount of fees and costs
on remand, the district court accepted additional briefing from the
parties. This time, along with its briefing, Catlin provided the
unredacted copies of the invoices for the two arbitrations, stating
that it had finally located them from defense counsel “[a]fter an
1 In Thompson v. Catlin Ins. Co. (UK) Ltd., (Colo. App. No. 11CA1330,
Oct. 16, 2014) (not published pursuant to C.A.R. 35(f)) (Thompson
II), Catlin appealed the trial court’s subsequent award of attorney
fees to plaintiffs under C.R.C.P. 103, section (8)(b)(5). The fees at
issue in Thompson II are unrelated to the attorney fees contested
here.
3
exhaustive search.” Plaintiffs moved to strike the unredacted
invoices as outside the scope of the mandate, and the court denied
the motion.
¶ 10 In a thorough and carefully reasoned opinion, the district
court relied on record evidence, including the unredacted invoices,
to calculate Catlin’s reasonable attorney fees and costs, making
specific deductions for redundant entries, excessive hours, and
other discretionary factors. The court found $452,107.15 of
Catlin’s requested $545,136.27 reasonable and necessary and
deducted this amount from the policy limit. After subtracting
amounts Catlin had previously paid plaintiffs, the court ordered
Catlin to pay $96,287.68. It denied plaintiffs’ requests for pre- and
post-judgment interest.
¶ 11 On appeal, plaintiffs contend that the district court acted
beyond the scope of the mandate in Thompson III by considering the
unredacted invoices, and that it erred in denying interest to which
they are statutorily entitled.
4
II. Unredacted Invoices
¶ 12 Plaintiffs contend that the district court acted beyond the
scope of the Thompson III mandate because, by considering the
unredacted invoices, the district court expressly disregarded the
mandate’s instruction to review “the existing record.” In light of the
unusual circumstances of this case, we disagree.
¶ 13 Trial courts have no discretion to disregard binding appellate
rulings. Consequently, we review de novo whether a trial court has
complied with a prior appellate ruling. City Council of City of Cherry
Hills Vill. v. S. Suburban Park & Recreation Dist., 219 P.3d 421, 423
(Colo. App. 2009).
¶ 14 When determining the meaning of a remand order, we
consider the disposition and context of the entire opinion. See In re
Marriage of Balanson, 107 P.3d 1037, 1044 (Colo. App. 2004)
(interpreting remand order “in the context of the entire opinion”); In
re Marriage of Ashlock, 663 P.2d 1060, 1062 (Colo. App. 1983) (“The
meaning of a remand is to be determined from the reviewing court’s
disposition of the issues before it.”).
5
¶ 15 We acknowledge that, in most cases, an instruction to the
district court to “review the existing record,” and to make a
determination “from this record,” would amount to an order
prohibiting the district court from considering additional evidence.
But given the unusual procedural posture of this case, we construe
the language as permissive rather than restrictive — in our view,
the remand order meant that the district court could rely exclusively
on the existing record to calculate reasonable fees, not that it had
to.
¶ 16 The division’s opinion in Thompson III was the second reversal
of the district court’s attorney fees order. Twice the district court
had essentially disregarded the redacted invoices, complaining that
it was impossible to determine the reasonableness of the fees and
costs from those invoices.
¶ 17 The division in Thompson I, No. 10CA2554, slip op. at 12,
noted that the redacted invoices “amply demonstrate[d]” that the
expenses were incurred and that at least some were incurred for
legitimate reasons. It remanded the case to the district court to
6
calculate Catlin’s reasonable fees, but did not expressly restrict or
authorize the consideration of additional evidence.
¶ 18 On remand, Catlin continued to rely on the redacted invoices
— though, had it presented the unredacted invoices then, the
remand order would not have precluded the court’s consideration of
them, see In re Marriage of Ashlock, 663 P.2d at 1062 (where
reviewing court does not include in its mandate a direction
concerning additional proceedings, it is within the trial court’s
discretion to receive additional evidence) — and the court continued
to declare them unhelpful in evaluating Catlin’s fee request.
Consequently, as it had the first time, the district court chose an
alternative methodology to compute Catlin’s expenses. Instead of
analyzing the unredacted entries on the invoices, the district court
imputed to Catlin the same amount of fees claimed by plaintiffs’
lawyers for their services in connection with the arbitration.
¶ 19 On appeal for the second time, the Thompson III division
acknowledged the district court’s struggle to decipher the largely
“indiscernible” invoices, but nonetheless directed the court to
provide more specific reasoning to support its fee determination,
7
suggesting that it start with the invoices in the record. The division
then laid out the precise analytical path for the district court: after
determining the lodestar amount, the court could deduct any hours
not reasonably expended, including hours that were not sufficiently
documented in the redacted invoices. Next, the district court was
told to adjust the lodestar amount after considering six factors
relevant to the litigation. The division warned the district court not
to cut corners in its analysis by reverting to its earlier method of
comparison with opposing counsel’s request or by “eyeball[ing]” the
fee request and cutting it by some arbitrary percentage. Thompson
III, No. 13CA2037, slip op. at 13-14.
¶ 20 After providing this guidance, the division directed the district
court to “make a more specific determination of the reasonable
costs and fees that Catlin may deduct.” Id. at 14. To accomplish
this task, the division instructed the district court to review the
existing record, calculate the expenses Catlin had incurred, identify
any factors used in making the calculations, and then deduct that
amount from the policy limit and order Catlin to pay plaintiffs the
amount owed under the judgment.
8
¶ 21 In our view, having outlined the requisite procedure, the
division’s reference to the “existing record,” id. at 15, was merely a
way to reassure the district court that it need not start from scratch
but could instead perform the necessary factfinding and
calculations based on the indisputably less-than-ideal evidence in
the record. We do not interpret the order to preclude the district
court’s reliance on better information, if such information became
available on remand. Cf. Moland v. People, 757 P.2d 137, 141 (Colo.
1988) (remand order instructing that defendant had present need
for postconviction relief and ordering district court to resolve motion
on the merits did not preclude district court’s subsequent
determination, based on consideration of new facts, that defendant
did not have present need for relief). After all, the first division, in
Thompson I, had not limited the court’s ability to consider
additional evidence. It is not clear from the second remand order
why the Thompson III court would have changed course and
required the district court to ignore the unredacted invoices.
¶ 22 Our interpretation of the remand order also gives effect to
evidentiary rules that favor consideration of all relevant evidence,
9
see CRE 402, with the goal of promoting the “truth-seeking
purposes of our judicial system,” Garrigan v. Bowen, 243 P.3d 231,
238 (Colo. 2010). Over the course of this protracted litigation, two
divisions of this court have remanded to the district court to make a
specific, record-based calculation of the reasonable amount of
attorney fees Catlin could deduct from the policy limit. But an
accurate determination has been hampered by the redactions to the
invoices. Now that the unredacted invoices have been recovered, we
are reluctant, absent some explanation from the division, to read
the remand order to limit the district court’s wide discretion to
consider this superior evidence in making the required calculations.
¶ 23 The dissent suggests that we have placed too much emphasis
on the truth-seeking function of the court, reminding us that each
day trial courts properly exclude evidence. That is undoubtedly
true, but only when some greater interest outweighs the benefit of
admitting all of the information that will help the district court to
arrive at a reasoned and thorough decision. We agree with the
dissent that adherence to remand orders is necessary to ensure
finality. But because we do not read the Thompson III remand order
10
to prohibit the district court’s consideration of the unredacted
invoices, we do not perceive adherence to the order as an interest
that outweighs (or is even in competition with) the obvious benefit
of the complete invoices.
¶ 24 Nor do we perceive any manifest unfairness to the plaintiffs
that might outweigh the interest in admitting the unredacted
invoices. The plaintiffs did not assert, and the district court did not
find, that the delay in producing the unredacted invoices stemmed
from Catlin’s bad faith or even an attempt to gain some strategic
advantage in the litigation. Rather, the district court accepted
Catlin’s explanation that unredacted versions of the invoices were
discovered only “after an exhaustive search,” and then were
produced promptly. We are in no position to second-guess the
district court on this finding of fact. See In re Estate of Ramstetter,
2016 COA 81, ¶ 52.
¶ 25 The dissent says we give short shrift to the fairness issue, but
we are unwilling to press an argument that the plaintiffs themselves
never made in the district court or on appeal. In the district court,
the plaintiffs complained that reliance on the unredacted invoices
11
violated the remand order, not that admission of the invoices gave
Catlin some unfair advantage or, as the dissent puts it, an
impermissible “second bite at the apple.” Even on appeal, plaintiffs
did not protest the unfairness of the court’s reliance on the
unredacted invoices; they contended that the district court should
have given them an opportunity to challenge those invoices at a
second hearing. It was not until oral argument that plaintiffs first
invoked fairness, suggesting that Catlin’s belated filing of the
unredacted invoices should have been precluded as the product of
strategic gamesmanship. We would find the argument more
persuasive if it were raised in the district court and supported by
evidence in the record but, as counsel conceded at oral argument,
the record is devoid of such evidence.
¶ 26 As for plaintiffs’ argument that they did not have an
opportunity to challenge the unredacted invoices, we perceive no
error. Plaintiffs contend that the district court should have
authorized additional discovery and held a second hearing on the
unredacted invoices. But plaintiffs never asked for a hearing or for
leave to reopen discovery; they merely asked the district court to
12
strike the invoices from the record on the ground that their
admission violated the court of appeals’ mandate. Because
plaintiffs never asked for this relief, we cannot say that the district
court erred in failing to sua sponte reopen the proceedings. Zeke
Coffee, Inc. v. Pappas-Alstad P’ship, 2015 COA 104, ¶ 36 (“[A] court
ordinarily ‘will not sua sponte afford a party relief that it has not
requested.’” (quoting Planned Parenthood of Ind. & Ky., Inc. v.
Comm’r, Ind. Dep’t of Health, 64 F. Supp. 3d 1235, 1257 n.7 (S.D.
Ind. 2014))).
¶ 27 Accordingly, we conclude that the district court did not err in
considering the unredacted invoices.
III. Prejudgment Interest
¶ 28 Plaintiffs next contend that the district court erred in declining
to award prejudgment interest pursuant to section 5-12-102(1),
C.R.S. 2015. We disagree.
¶ 29 Because prejudgment interest is a question of statutory
interpretation, we review it de novo. Goodyear Tire & Rubber Co. v.
Holmes, 193 P.3d 821, 825 (Colo. 2008).
13
¶ 30 Section 5-12-102(1)(a) provides for the award of prejudgment
interest “[w]hen money or property has been wrongfully withheld
. . . from the date of wrongful withholding to the date of payment or
to the date judgment is entered.” This statute, however, does not
apply to garnishment proceedings; rather, it governs contract and
property damage cases. See Beren v. Beren, 2015 CO 29, ¶ 45
(Section 15-12-102 did not apply because “this case is not a
contract or property damage case; it is a probate case.”).2
¶ 31 Further, we agree with the district court that, because
garnishment actions do not result in damages to the garnishor,
prejudgment interest is not appropriate. Prejudgment interest is a
component of compensatory damages, meant to make the plaintiff
whole and fully compensate for the loss. Seaward Constr. Co. v.
2 We recognize that some cases have applied section 5-12-102(1) in
equitable actions, but we find those cases inapplicable. For
example, in Safeco Insurance Co. v. Westport Insurance Corp., 214
P.3d 1078, 1080 (Colo. App. 2009), a division of this court
determined that a plaintiff could collect prejudgment interest in a
contribution action. However, interest was appropriate in that case
because the purpose of contribution is to prevent unjust
enrichment and “the unjustly enriched party is generally liable for
interest on the benefits received.” Id. (quoting Martinez v. Cont’l
Enters., 730 P.2d 308, 317 (Colo. 1986)). In contrast, a garnishee is
not unjustly enriched because it possesses assets of a third-party
debtor.
14
Bradley, 817 P.2d 971, 978 (Colo. 1991); Watson v. Pub. Serv. Co. of
Colo., 207 P.3d 860, 867 (Colo. App. 2008). Absent an express
indication of legislative intent to deviate from the principle that
prejudgment interest is compensatory, it may be awarded only on
compensatory damages. Seaward Constr. Co., 817 P.2d at 978;
Watson, 207 P.3d at 867. A garnishment proceeding, however, is
not a “suit involving money damages”; rather it is an ancillary
proceeding to enforce a judgment. Commercial Claims, Ltd. v. First
Nat’l Bank of Glenwood Springs, 649 P.2d 736, 736 (Colo. App.
1982) (citation omitted). Accordingly, because compensatory
damages are not awarded in garnishment proceedings, prejudgment
interest is not appropriate.
¶ 32 Moreover, a plaintiff is only entitled to prejudgment interest
where there has been a wrongful withholding. “Our case law
clarifies that, as a precondition to a wrongful withholding, there
must be a party who has acted wrongfully in the legal sense, e.g., a
party has breached a contract.” Beren, ¶ 45. Catlin neither
breached a contract with plaintiffs nor damaged physical property,
see id., and no court has determined Catlin’s conduct to be
15
wrongful. Garnishment actions do not determine liability in the
sense of a legal wrong — they simply reach assets of a judgment
debtor in the hands of third parties. § 13-54.5-103, C.R.S. 2015;
C.R.C.P. 103; Idaho Pac. Lumber Co., Inc. v. Celestial Land Co. Ltd.,
2013 COA 136, ¶ 8. Before the garnishment action, Catlin had no
legal duties to plaintiffs, and thus the proceeds of the insurance
policy cannot have been wrongfully withheld. See Mesa Sand &
Gravel Co. v. Landfill, Inc., 776 P.2d 362, 364-65 (Colo. 1989)
(collecting cases).
IV. Postjudgment Interest
¶ 33 Finally, plaintiffs contend that an award of postjudgment
interest was mandatory under section 5-12-106(1)(b), and the
district court erred by denying their request. We disagree.
¶ 34 When a judgment is appealed by a judgment-debtor, section 5-
12-106(1)(b) provides for an award of postjudgment interest from
the date judgment was first entered in the trial court if “the
judgment is modified or reversed with a direction that a judgment
for money be entered in the trial court.”
16
¶ 35 However, under C.A.R. 37(b), “[i]f all or part of a judgment is
. . . modified, [or] reversed[] . . . with a direction that a money
judgment be entered in the lower court, the mandate must contain
instructions with respect to allowance of interest.” This rule
provides the appellate courts with exclusive authority to determine
the propriety of an award of postjudgment interest. In re Marriage
of Gutfreund & Hughes, 148 P.3d 136, 142 (Colo. 2006). As a
result, “if the mandate does not contain instructions regarding the
award of postjudgment interest from some date prior to the entry of
the judgment on remand, the trial court lacks jurisdiction to award
such interest.” Westec Constr. Mgmt. Co. v. Postle Enters. I, Inc., 68
P.3d 529, 535 (Colo. App. 2002).
¶ 36 Accordingly, because the Thompson III mandate did not direct
the district court to award postjudgment interest, the district court
correctly held that it lacked jurisdiction to make such an award.
See id.; Sperry v. Field, 186 P.3d 133, 141 (Colo. App. 2008). The
only way to invest the district court with the necessary jurisdiction
is to file a request with the court of appeals to amend its mandate.
Westec Constr., 68 P.3d at 535; Boryla v. Pash, 17 P.3d 833, 835
17
(Colo. App. 2000). But plaintiffs did not request this relief. And
because the district court had no jurisdiction to award interest, we
need not decide whether postjudgment interest would have been
proper under section 5-12-106(1)(b). Boryla, 17 P.3d at 834-35; see
also Pet Inc. v. Goldberg, 37 Colo. App. 257, 259, 547 P.3d 943, 945
(1975) (if a mandate issues that fails to direct the trial court with
respect to the award of interest, or even if it contains an erroneous
direction upon the subject, a trial court lacks jurisdiction to grant
an award of interest inconsistent with the appellate court’s
mandate).
¶ 37 We are not persuaded by plaintiffs’ argument that this reading
of Rule 37 would create an impermissible conflict with section 5-12-
106(1)(b). Rather, the statute merely “states the circumstances
wherein interest shall be allowed to a creditor or on a judgment,
[while] C.A.R. 37 requires and empowers the appellate court to
make the determination of interest to be allowed, if any,” and to
include appropriate instructions in its mandate. Pet Inc., 37 Colo.
App. at 259, 547 P.2d at 944-45. Thus, we perceive no conflict.
18
V. Conclusion
¶ 38 The judgment is affirmed. In their briefs, plaintiffs requested
attorney fees pursuant to either C.A.R. 39.5 (now renumbered as
C.A.R. 39.1) or C.R.C.P. 103, section 8(b)(5). In light of our opinion,
we decline to award attorney fees on either basis.3
JUDGE ASHBY concurs.
JUDGE WEBB concurs in part and dissents in part.
3 Catlin filed a motion to strike plaintiffs’ request for attorney fees,
noting that they did not raise the C.R.C.P. 103, section 8(b)(5) basis
in their opening brief. Since we decline to award attorney fees, this
motion is denied as moot.
19
JUDGE WEBB, concurring in part and dissenting in part.
¶ 39 I concur in all but Part II of the majority opinion. There, the
majority concludes that on remand the district court properly
allowed Catlin to supplement the record by replacing numerous
previously redacted invoices with unredacted versions. But in
doing so, the district court departed from plain language of the
mandate in Thompson v. Catlin Insurance Co. (UK) Ltd., (Colo. App.
No. 13CA2037, Oct. 16, 2014) (not published pursuant to C.A.R.
35(f)) (Thompson III). Therefore, and with respect, I dissent.
¶ 40 Everyone would agree that on remand a district court must
follow the mandate of an appellate court. See, e.g., City Council of
City of Cherry Hills Vill. v. S. Suburban Park & Recreation Dist., 219
P.3d 421, 423 (Colo. App. 2009). The majority recognizes, as do all
those who appeared before us, that the remand instruction in
Thompson III directed the district court to “review the existing
record, and from this record, calculate the amount of expenses that
Catlin reasonably incurred” in the underlying arbitrations.
Thompson III, No. 13CA2037, slip op. at 15. This language is clear.
And because it is clear, I decline to join the majority in wondering
20
“why the Thompson III court would have changed course and
required the district court to ignore the unredacted invoices.”
¶ 41 Yet, instead of following the plain meaning of this clear
language, the majority dismisses it as “merely a way to reassure the
district court that it need not start from scratch but could instead
perform the necessary factfinding and calculations based on the
indisputably less-than-ideal evidence in the record.” But what
more could the mandate have said? Must a mandate say not only
what the district court shall do — “from the existing record” — but
also what the court may not do — “without taking additional
evidence?” Surely not, as additional language is not necessary if
the meaning is otherwise clear. BMD Contractors, Inc. v. Fid. &
Deposit Co. of Md., 679 F.3d 643, 650 (7th Cir. 2012). And therein
lies the problem with the majority’s reliance on the lack of “some
explanation from the division.”
¶ 42 One might well ask whether this case — now in its fourth
appeal — cries out for a final resolution. It does. But that outcry
cannot license appellate disregard of yet another error.
21
¶ 43 To begin, the majority notes, “we consider the disposition and
context of the entire opinion,” citing In re Marriage of Ashlock, 663
P.2d 1060, 1062 (Colo. App. 1983). But this principle only frames,
it does not decide, the question of how the Thompson III mandate
should be read. And unlike the direction in the mandate here —
“review the existing record” — the Ashlock division pointed out that
“the reviewing court [did] not include in its mandate a direction
concerning additional proceedings.” Id.
¶ 44 Taking up how to read the mandate, I, too, view the remand
instructions through the prism of the entire opinion. This broad
perspective does not show us anything in Thompson III that even
hints at an opportunity to present additional evidence on remand.
To the contrary, the division said that the district court had already
“reviewed all the evidence.” Thompson III, No. 13CA2037, slip op. at
14. Given this statement, one might wonder why the district court
considered more — but not “newly discovered,” as Catlin conceded
at oral argument — evidence than it already had.
¶ 45 The division observed that while the district court had
identified testimony of Catlin’s counsel in the underlying arbitration
22
“as supporting the basis for the award,” the court had “not
connect[ed] her testimony to the $160,000 amount awarded in each
arbitration.” Id. at 10. Of course, this testimony was in the record.
¶ 46 Next, the division noted that a remand for further findings was
necessary because the district court’s “order does not specify
whether the court used the lodestar amount as a starting point
before reducing the fee. We also do not know if the court
considered whether Thompson’s counsel requested $160,000 as a
lodestar amount or as a contingency fee.” Id. And this testimony
was also in the record.
¶ 47 Then the division summarized the familiar lodestar
methodology — including the factors used to adjust the lodestar up
or down1 — and directed the district court to “make a more specific
determination of the reasonable costs and fees that Catlin may
deduct.” Id. at 14. But the division did not suggest that applying
1 “Factors that the district court may consider include: (1) the
amount in controversy; (2) the time required to represent the client
effectively; (3) the complexity of the case; (4) the value of the legal
services to the client; (5) the existence of a fee arrangement,
whether fixed or contingent; and (6) the customary practice in the
legal community regarding fees in similar actions.” Thompson v.
Catlin Insurance Co. (UK) Ltd., slip op. at 12 (Colo. App. No.
13CA2037, Oct. 16, 2014) (not published pursuant to C.A.R. 35(f)).
23
those factors would require the court to look beyond the “existing
record,” such as moving from the redacted invoices to their now
conveniently available unredacted counterparts.
¶ 48 Considering the division’s reference to evidence already in the
record and its lack of reference to new evidence, by any fair reading
the problem in Thompson III was insufficient explanation, not a lack
of evidence. Thus, on remand, the division’s concerns over
inadequate findings should have been resolved with further
scrutiny of the invoices already in the record — both redacted and
unredacted — as well as of the testimony given by arbitration
counsel for both parties in the attorney fees hearing.
¶ 49 Then the district court could have provided the additional
explanation that the division sought. And the district court could
still have concluded — as it had concluded once before — that gaps
created by the extensive redactions on many invoices left plaintiffs’
fees of $160,000 in each of the arbitrations as the most reliable
measure of reasonableness. After all, as the division also held, “no
language in Thompson I specifically instructed the district court to
use the lodestar method.” Id. at 6.
24
¶ 50 The majority’s stated deference to “the truth-seeking purposes
of our judicial system,” Garrigan v. Bowen, 243 P.3d 231, 238 (Colo.
2010), does not tip the scales in favor of admitting the unredacted
invoices, for three reasons.
¶ 51 First, the issue before us is not an evidentiary ruling, in which
district courts enjoy considerable discretion. See, e.g., People v.
Helms, 2016 COA 90, ¶ 45 (We review “evidentiary rulings for an
abuse of discretion.”). Instead, the issue is whether the district
court adhered to the plain language of the mandate. And the
mandate rule is just that: a rule, not a discretionary option.
¶ 52 Second, every ruling excluding evidence on procedural
grounds compromises truth seeking. See People v. Shreck, 22 P.3d
68, 76 (Colo. 2001). Yes, as the majority points out, “all of the
information . . . will help the district court to arrive at a reasoned
and thorough decision.” Even so, district courts routinely exclude
evidence on procedural grounds, at least where — as here — the
countervailing interest is not constitutional. See People v.
Pronovost, 773 P.2d 555, 558 (Colo. 1989).
25
¶ 53 Third, and to me most important, in many remands and with
the invariably perfect wisdom of hindsight, creative counsel can
identify additional evidence — available, as here, but not presented
before the appeal — that might tilt the playing field toward a more
favorable outcome on remand. But creativity does not beget
unbridled opportunity. Our supreme court has been reluctant to
allow any party “a second bite at the apple.” People v. Null, 233
P.3d 670, 681 (Colo. 2010) (quoting Burks v. United States, 437 U.S.
1, 17 (1978)). As well, allowing counsel to do so would protract
remand proceedings and imperil finality. See In re Marriage of
Wolford, 789 P.2d 459 (Colo. App. 1989) (noting that a definite
public interest exists in assuring the finality of civil judgments).
¶ 54 Finally, and to no one’s surprise, I take issue with the
majority’s inability to “perceive any manifest unfairness to the
plaintiffs that might outweigh the interest in admitting the
unredacted invoices.” A close look shows that the unfairness stems
from allowing Catlin to escape the strategic decision that it made —
long ago and presumably for good reason — to rest its fees claim on
the many redacted invoices from which the district court found it
26
“impossible to determine in any manner the activities performed
with respect to those entries.” Catlin neither suggests that the
unredacted invoices are “newly discovered” evidence, nor does it
offer any reason why it should be allowed to escape that choice on
remand. And for these reasons, I do not see why the burden should
be shifted to plaintiffs — as the majority does — to show an
insufficient “opportunity to challenge those invoices at a second
hearing.” The majority does not cite authority — nor am I aware of
any — softening the binding effect of remand instructions by
engrafting lack of prejudice on to the analysis.
¶ 55 In the end, I would reverse in part because the district court
departed from the mandate in Thompson III and again direct the
court to reconsider the attorney fees issue solely on the basis of the
invoices and other information in the record when the mandate
issued.
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