In re Estate of Owens

COLORADO COURT OF APPEALS 2017COA53

Court of Appeals No. 15CA1557
Jefferson County District Court No. 13PR534
Honorable Lily W. Oeffler, Judge

In re the Estate of Arlen E. Owens, deceased.

David Owens,

Petitioner-Appellee,

v.

Angela Dominguez,

Respondent-Appellant.

JUDGMENTS AFFIRMED

Division I
Opinion by JUDGE TAUBMAN
Graham and Navarro, JJ., concur

Announced April 20, 2017

Craig Wagner Law Firm, Craig E. Wagner, Denver, Colorado, for Petitioner-
Appellee

Azizpour Donnelly, LLC, Katayoun A. Donnelly, Denver, Colorado, for
Respondent-Appellant
¶1 Appellant, Angela Dominguez, appeals the district court’s

judgment granting the petitions of appellee, David Owens, for

determination of testacy and to set aside nonprobate transfers.

Dominguez also appeals a subsequent district court judgment

holding her in contempt. We affirm.

I. Background

¶2 After he was discharged from a recovery center for health

issues, Dr. Arlen E. Owens (the decedent) hired Dominguez as his

private caregiver in 2010. The decedent was diagnosed with

“memory impairment” upon his release and returned home despite

medical advice to move to assisted living. The decedent died in July

2013.

¶3 After the decedent’s death, his brother and only living heir,

Owens, filed a petition for informal probate of the decedent’s will

and informal appointment of personal representative. He was then

appointed the personal representative of the estate. In March 2014,

Owens filed a petition for determination of testacy and for

determination of heirs, alleging that the will that the decedent had

signed in July 2012 was the product of undue influence by

Dominguez and that the decedent had lacked the capacity to

1
 execute the will. Owens also filed a complaint for recovery of estate

assets and asked that the court invalidate the will and order that

the decedent’s estate be administered under intestate distribution

statutes.

¶4 In March 2015, Owens filed a petition to set aside nonprobate

transfers. He contended that payable-on-death (POD) designations

on three accounts, executed by the decedent with Dominguez as the

beneficiary, should be set aside on the ground that Dominguez had

exerted undue influence on the decedent, who had lacked the

capacity to execute the POD designations. In response, Dominguez

filed a motion to dismiss the petition to set aside the POD

designations for lack of jurisdiction, arguing that the POD

designations were nonprobate transfers not governed by the probate

code. The district court denied Dominguez’s motion.

¶5 At the request of Owens and over Dominguez’s jurisdictional

objections, the district court imposed a constructive trust over the

three POD accounts at issue. Then in July 2015, the court held an

evidentiary hearing on the issues of testamentary capacity and

undue influence. Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009).

In a written order, the court found that the decedent had not had

2
 the capacity to execute the POD designations and had been unduly

influenced by Dominguez. However, it found that the decedent had

had the testamentary capacity to execute his will and had not been

unduly influenced by Dominguez in signing his will.

¶6 After the court issued its final judgment, it issued a contempt

order against Dominguez for violation of the constructive trust as it

related to $140,000 from the State Farm Bank account. Dominguez

objected on the grounds that the court did not have jurisdiction to

impose the constructive trust. The court sentenced her to six

months in county jail, with the condition that she could purge the

contempt by making $50,000 monthly payments until she paid

$140,000.

II. Standing

¶7 Dominguez contends that the district court did not have

jurisdiction to set aside the POD designations and impose a

constructive trust on the POD accounts because Owens and the

estate did not have standing to make such requests. Owens

responds that Dominguez cannot raise her standing claims on

appeal, and that her standing claims do not relate to the court’s

authority in this case. We conclude that Dominguez can raise her

3
 standing claims on appeal based on the holding of In re Estate of

Murphy, 195 P.3d 1147, 1150-51 (Colo. App. 2008).

A. Standard of Review

¶8 “[S]tanding is a jurisdictional prerequisite to every case and

may be raised at any stage of the proceedings, including on appeal.”

HealthONE v. Rodriguez, 50 P.3d 879, 891 n.5 (Colo. 2002). We

review issues of standing de novo. Ainscough v. Owens, 90 P.3d

851, 856 (Colo. 2004).

¶9 Owens argues that Dominguez never raised the issue of

standing in the district court and never disputed that he had a

legally protected right to pursue a correct probate determination of

his brother’s estate. He asserts that as a result, Dominguez has not

preserved this issue for appeal and that we may not review it.

However, “lack of standing is a jurisdictional issue and may be

raised at any time.” Peters v. Smuggler-Durant Mining Corp., 910

P.2d 34, 38 (Colo. App. 1995), aff’d, 930 P.2d 575 (Colo. 1997).

B. Applicable Law

¶ 10 “The question of standing involves a consideration of whether

a plaintiff has asserted a legal basis on which a claim for relief can

be predicated.” Bd. of Cty. Comm’rs v. Bowen/Edwards Assocs.,

4
 Inc., 830 P.2d 1045, 1052 (Colo. 1992). To establish standing, a

plaintiff must demonstrate that (1) he or she was injured in fact and

(2) the injury was to a legally protected interest. See Hickenlooper v.

Freedom from Religion Found., Inc., 2014 CO 77, ¶ 18, 338 P.3d

1002, 1006; Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d

535, 539 (1977).

¶ 11 Under Colorado law, a POD designation is defined as follows:

[T]he designation of (i) a beneficiary in an
account payable on request to one party
during the party’s lifetime and on the party’s
death to one or more beneficiaries, or to one or
more parties during their lifetimes and on
death of all of them to one or more
beneficiaries, or (ii) a beneficiary in an account
in the name of one or more parties as trustee
for one or more beneficiaries if the relationship
is established by the terms of the account and
there is no subject of the trust other than the
sums on deposit in the account, whether or
not payment to the beneficiary is mentioned.

§ 15-15-201(8), C.R.S. 2016. In Colorado, POD accounts are not

considered a part of the probate estate, although the probate code

does permit POD designations. See id. (defining “POD

designation”); see also § 15-15-203, C.R.S. 2016 (authorizing POD

accounts); § 15-15-212(2), C.R.S. 2016 (explaining rights on death

concerning POD accounts).

5
¶ 12 A district court sitting in a probate matter has the same

jurisdiction as the Denver Probate Court. In re Estate of Lembach,

622 P.2d 606, 607 (Colo. App. 1980). Probate courts, and by

extension, district courts sitting in probate, have broad jurisdiction

“to determine every legal and equitable question arising in

connection with decedents’ . . . estates, so far as the question

concerns any person who is before the court by reason of any

asserted right in any of the property of the estate.” In re Estate of

Murphy, 195 P.3d at 1151 (emphasis added) (quoting § 13-9-

103(3)(a), C.R.S. 2016). Such courts also have jurisdiction

[i]n any case in which a district court could
grant such relief in a separate action brought
therein, to impose or raise a trust with respect
to any of the property of the decedent or any
property in the name of the decedent,
individually or in any other capacity, in any
case in which the demand for such relief arises
in connection with the administration of the
estate of a decedent[.]

§ 13-9-103(3)(b) (emphasis added).

¶ 13 The Murphy division held that, based on the language of

section 13-9-103(3)(a) and (b), “the phrase ‘in connection with’ [was]

a grant of authority to resolve disputes logically relating to the

estate,” and it found that resolving the question regarding the joint

6
 tenancy property at issue there — not considered part of a probate

estate — was “essential to the proper and orderly distribution of

estate property.” In re Estate of Murphy, 195 P.3d at 1151-52

(citations omitted); see also § 15-10-302(2), C.R.S. 2016 (The

probate court “has full power to make orders . . . necessary and

proper to administer justice in the matters which come before it.”).

Thus, a district court’s jurisdiction — and its authority to impose

restrictions on nonprobate assets — may extend even to property

claimed by the estate that may ultimately not belong to the estate.

See In re Estate of Lembach, 622 P.2d at 608.

C. Analysis

¶ 14 Consequently, the Denver Probate Court — and, as interpreted

in Lembach, a district court — has jurisdiction to determine every

legal and equitable question arising in connection with an estate,

when any person comes before the court with any asserted right in

the property of the estate. In re Estate of Murphy, 195 P.3d at

1151-52. The court has the power to resolve such questions that

are “essential to the proper and orderly distribution of estate

property.” Id. at 1152 (citing § 15-10-302(2)). Thus, the governing

statutes and case law indicate that the district court has broad

7
 jurisdiction over any probate and nonprobate matters that are

essential to proper administration of an estate.

¶ 15 In this case, resolving the issues surrounding the POD

designations was essential to the proper and orderly administration

of the decedent’s estate. Because the money subject to the POD

transfers would otherwise be a part of the decedent’s estate, the

court was required to determine whether Owens’ allegations of

undue influence and lack of testamentary capacity were true.

Owens petitioned to determine testacy and heirs, to recover estate

assets, and to set aside the POD designations. As relevant here, he

alleged that Dominguez had asserted undue influence over the

decedent and that the decedent had lacked the testamentary

capacity to designate Dominguez as the beneficiary of the POD

accounts. Thus, Owens’ claims regarding the POD designations

were legal and equitable questions that arose in connection with the

estate.

¶ 16 We conclude that the reasoning in In re Estate of Murphy

concerning joint tenancy real property applies equally to an heir’s

potential interest in accounts with POD designations. Thus, we

conclude that the court had jurisdiction to impose a constructive

8
 trust on the three POD accounts. See id. at 1151-52; see also

Mitchem v. First Interstate Bank of Denver, N.A., 802 P.2d 1141,

1142 (Colo. App. 1990) (“The power to determine whether to impose

a constructive trust is a matter within the purview of the probate

court.”); In re Estate of Lembach, 622 P.2d at 608.

¶ 17 Therefore, following the reasoning in Murphy, we conclude that

Owens had standing in this matter and the district court had

jurisdiction to impose a constructive trust and review his claims.

III. Mental Capacity and Undue Influence

¶ 18 Dominguez next asserts that the district court erred when it

determined that the decedent had not had the testamentary

capacity to designate Dominguez as beneficiary of the POD

accounts and that Dominguez had unduly influenced the decedent

to designate her as beneficiary of the three accounts. We disagree.

A. Standard of Review

¶ 19 Claims regarding the sufficiency of the evidence are mixed

questions of law and fact. “‘Where there is a mixed question of law

and fact, the reviewing court will give deference to the trial court’s

factual findings, absent an abuse of discretion,’ but will

independently review questions of law.” Sheridan Redevelopment

9
 Agency v. Knightsbridge Land Co., 166 P.3d 259, 262 (Colo. App.

2007) (quoting Sanger v. Dennis, 148 P.3d 404, 410 (Colo. App.

2006)).

¶ 20 Owens argues that the issue of “evidentiary sufficiency” was

never raised or even mentioned in the district court and that

Dominguez’s pro se motion to set aside the judgment pursuant to

C.R.C.P. 59 and 60 did not expressly raise a sufficiency of the

evidence argument. Therefore, he argues, the issue has not been

preserved for appeal.

¶ 21 We conclude that Dominguez sufficiently preserved the issue

for appellate review by including it in her motion to set aside the

judgment. Where an issue was brought to the district court’s

attention and the court ruled on it, it is preserved for appellate

review; no talismanic language is required to preserve an issue. See

Target Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12, ¶ 23, 351

P.3d 493, 499.

B. Applicable Law

¶ 22 “It is the trial court’s sole province to resolve disputed factual

issues and to determine witnesses’ credibility, the weight to accord

testimony, and the inferences to be drawn from the evidence.” Id.

10
 at ¶ 24, 351 P.3d at 499. Indeed, a trial court’s “determination of” a

testifying witness’ “credibility [is] entirely within the purview of the

trial court as the finder of fact and is binding upon” an appellate

court. People v. Fordyce, 705 P.2d 8, 9 (Colo. App. 1985). “The trier

of fact is not required to accept a witness’ testimony, even [if] it is

uncontroverted.” Id. We “may not reweigh evidence or substitute

[our] judgment for that of the trial court.” Target Corp., ¶ 24, 351

P.3d at 499.

C. Analysis

¶ 23 In its detailed, eight-page ruling following the June 2015

hearing, the district court made numerous factual findings,

including that Dominguez lacked credibility due to inconsistencies

in her testimony. It also found that the evidence suggested that

Dominguez had attempted to mislead the court regarding her

involvement in the POD designations “in order to appear less

controlling and less influential in the Decedent’s transactions.”

¶ 24 The court concluded this despite Dominguez’s contention that

she presented unrefuted evidence from ten different witnesses that

the decedent had testamentary capacity to designate her as

beneficiary of the POD accounts. The trial court noted that most of

11
 those witnesses had only met with the decedent briefly and retained

a financial stake in testifying in favor of Dominguez. The court

instead found that the testimony of the decedent’s attorney, who

had prepared his will, was “far more compelling.” The attorney

testified that when she and the decedent had discussed his POD

designations, he had mistakenly told her that he had designated

Owens as beneficiary of the accounts rather than Dominguez. The

court concluded that the attorney’s testimony demonstrated that

the decedent was “severely confused” regarding the nature and

effect of his POD designations such that he lacked testamentary

capacity to make such dispositions.

¶ 25 Finally, the court concluded:

[T]he Court infers from the confidential
relationship Respondent had with the
Decedent, the contradictions in Respondent’s
testimony, and the other evidence submitted
by Petitioner, that Respondent exerted undue
influence on the Decedent and manipulated
him into making the POD designations.

The court’s conclusion, based on the evidence presented, echoed

the principles of Krueger, 205 P.3d at 1156.

¶ 26 Dominguez nevertheless asserts that the court’s findings were

inconsistent because Dominguez presented ten witnesses with

12
 unrefuted evidence in her favor and the court used the same

evidence to overturn the POD designations but uphold the will.

However, the court explained that it had relied on different evidence

in analyzing the will and the POD designations. Specifically, the

court noted that “unlike the POD designations, the Decedent was

represented by an attorney when he signed the will.”

¶ 27 Based on the above findings, we conclude that the record

supports the court’s factual findings and its assessment of the

credibility of each witness. Accordingly, we do not displace its

conclusions. Target Corp., ¶ 24, 351 P.3d at 499.

IV. Right to Jury Trial

¶ 28 Dominguez next asserts that the district court erred when it

prevented her from exercising her right to a jury trial. We disagree.

¶ 29 After the June 2015 evidentiary hearing and before any

postjudgment motions were filed, Dominguez’s counsel filed a

motion to withdraw, which the court granted. Dominguez filed a

pro se motion for an extension of time to retain counsel to file

postjudgment motions. The court denied this motion. Dominguez

then filed pro se motions to set aside the judgment and to

reconsider the judgment. Both motions asserted that she was

13
 entitled to a jury trial. The court denied her motions and denied

her requests for a jury trial.

¶ 30 Owens asserts that Dominguez’s claims regarding her right to

a jury trial were unpreserved for appellate review since she made

such requests after the trial court’s judgment and thus waived her

right to a trial by jury. We conclude that because Dominguez had

the opportunity to exercise her right to a jury trial and failed to do

so, she has waived her claims to such a right.

A. Standard of Review

¶ 31 We review the construction of statutes de novo. Lobato v.

Indus. Claim Appeals Office, 105 P.3d 220, 223 (Colo. 2005). When

interpreting a statute, we must determine and give effect to the

General Assembly’s intent. Davison v. Indus. Claim Appeals Office,

84 P.3d 1023, 1029 (Colo. 2004). If the statutory language is clear,

we interpret the statute according to its plain and ordinary

meaning. Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo.

2010).

¶ 32 The Colorado Rules of Probate Procedure are subject to the

principles of statutory construction. People v. Zhuk, 239 P.3d 437,

438-39 (“We interpret rules of procedure consistent with principles

14
 of statutory construction.”). We construe them de novo. Maslak v.

Town of Vail, 2015 COA 2, ¶ 10, 345 P.3d 972, 975.

B. Applicable Law

¶ 33 Pursuant to Krueger, “whether the opponent’s evidence meets

the burden [of rebutting the presumption of undue influence] is a

question of legal sufficiency for the trial court, not a question of fact

for the jury.” 205 P.3d at 1154 (holding that “this general rule

holds true for the rebuttable presumptions of undue influence and

unfairness”). “[I]f the presumption’s opponent does offer evidence

legally sufficient to meet the burden of going forward . . . [then] the

fact remains disputed, to be determined by the jury.” Id. at 1156.

¶ 34 Pursuant to C.R.P.P. 25, “[i]f a jury trial is authorized by law,

any demand therefor shall be filed with the court, and the

appropriate fee paid, before the matter is first set for trial. Failure

to make such a demand constitutes a waiver of trial by jury.”

C. Analysis

¶ 35 Referencing Krueger, Dominguez contends that she asserted

her right to a jury in a pro se motion as soon as the issue became

ripe to be heard by a jury — when the court determined that she

had met her evidentiary burden of going forward regarding the issue

15
 of undue influence and testamentary capacity. Dominguez bases

this argument on language in Krueger referring to disputed facts “to

be determined by the jury.” 205 P.3d at 1156. However, the issue

was ripe to be heard by a jury when the issue of whether

Dominguez had exercised undue influence was set for a hearing in

June 2015. The court followed the legal principles set forth in

Krueger, heard disputed testimony, determined whether Dominguez

had satisfied her burden of proof, and concluded that Dominguez

had exerted undue influence over the decedent and manipulated

him into making the POD designations when he lacked

testamentary capacity to do so. Dominguez should have requested

a jury trial beforehand; by failing to do so, she waived her claim to

that right.

¶ 36 Dominguez’s attorney, who represented her before and during

the hearing in June 2015, should have known that her opportunity

to request a jury trial ripened prior to that hearing. In her

postjudgment motions, Dominguez requested a jury trial but made

no claim that she was unaware of her right to a jury trial. In any

case, such argument would have been irrelevant, since the attorney

that represented her at the bench trial did not make a jury request

16
 prior to the trial. Nothing prevented Dominguez from asserting her

right to a jury trial at that time.

¶ 37 Accordingly, we conclude the district court did not prevent

Dominguez from exercising her right to a jury trial; therefore, it did

not err in denying her belated request for one.

V. Contempt

¶ 38 Dominguez contends that the district court erred in

concluding that the existence of nonliquid assets can be the basis

for determining that a contemnor has the present ability to pay.

Owens responds that Dominguez’s release from jail in April 2016

after serving only three months, with work release, of her six-month

contempt sentence renders the contempt issue moot. We agree

with Dominguez that the claim is not moot, but we also disagree

with her contention of error.

A. Standard of Review

¶ 39 Whether Dominguez had the duty and the ability to pay is a

mixed question of law and fact. Where there is a mixed question of

law and fact, we review to the trial court’s factual findings for clear

error, but independently review questions of law. See E-470 Public

Hwy. Auth. V. 455 Co., 3 P.3d 18, 22 (Colo. 2000). A finding of

17
 contempt is within the discretion of the trial court and “will not be

reversed absent an abuse of discretion.” In re Estate of Elliott, 993

P.2d 474, 478 (Colo. 2000). The imposition of remedial sanctions

for contempt is governed by C.R.C.P. 107(d)(2).

¶ 40 Ordinarily, we will not “render opinions on the merits of an

appeal when the issues have become moot.” Johnson v. Griffin, 240

P.3d 404, 406 (Colo. App. 2009). “An issue becomes moot when the

relief granted by the court would not have a practical effect upon an

existing controversy,” Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d

1095, 1102 (Colo. 1998), or when prospective relief is unnecessary

to remedy an existing controversy or prevent its recurrence. State

Bd. of Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 971 (Colo.

1997).

B. Applicable Law

¶ 41 Remedial contempt, at issue in this case, applies only to those

individuals who have a duty and an ability to comply but refuse to

do so. See In re Marriage of Nussbeck, 974 P.2d 493, 498 (Colo.

1999) (citing C.R.C.P. 107(d)(2)). Pursuant to C.R.C.P. 107(d), to

“justify punishment for this civil contempt consisting in a refusal to

perform a required act for the benefit of others, the trial court must

18
 upon hearing make a finding both of the facts constituting

contempt and of the present duty and ability to perform.” Marshall

v. Marshall, 191 Colo. 165, 167, 551 P.2d 709, 710 (1976) (citing

People in Interest of Murley, 124 Colo. 581, 239 P.2d 706 (1951)).

Thus, before imposing remedial contempt, the court is required to

find a duty and a present ability to pay. C.R.C.P. 107(d)(2).

However, “[t]he burden of proving a present inability to perform

rests with the contemnor.” Elliott, 993 P.2d at 479.

C. Analysis

¶ 42 We first address Owens’ contention that Dominguez’s

contempt claim is moot now that she has been released from jail.

¶ 43 After the district court issued the final judgment, it held a

hearing regarding the $140,000 in the State Farm Bank account

and issued a contempt order. There, the court sentenced

Dominguez to six months of jail with the condition that she could

purge the contempt by making monthly $50,000 payments until

she paid $140,000. The court warned Dominguez that if she failed

to make any of these monthly payments, she would be rejailed. The

risk of reincarceration only related to Dominguez’s failure to pay

pursuant to the contempt order. Even though Dominguez was

19
 released from her sentence three months early, it is not clear from

the record whether Dominguez has made all the payments

pursuant to the contempt proceedings.1 Thus, because Dominguez

could again be held in contempt we conclude the issue is not moot.

¶ 44 Nevertheless, we disagree with her contentions of error. As

stated above, the contemnor has “the burden of proving a present

inability to perform” in order to overcome a finding of remedial

contempt. Id. Here, the district court found that Dominguez had

not met that burden.

¶ 45 In its sentencing order, the district court made extensive

findings of fact constituting Dominguez’s contempt and her ability

to pay back the funds she took in violation of the court’s orders

establishing constructive trusts over the POD accounts. First, the

court found that, by operation of the constructive trust imposed on

the POD accounts, Dominguez was prohibited from disposing of

those funds. Specifically, Dominguez had a court-ordered duty not

to remove the $140,000 that remained in the State Farm Bank

1 Owens’ counsel stated at oral argument that the payments had
not been made, and Dominguez’s counsel did not disagree with that
statement.

20
 account. This money was no longer in the account at the close of

the hearing on Owens’ petition to determine testacy.

¶ 46 At the contempt hearing, the court noted that Dominguez “has

informed the Court or told the Court a variety of different versions

of where this money has gone.” It continued:

When she was asked to put the money, put a
certain sum into the court registry, she
indicated she did not have that sum, that it
had been spent. She gave a variety of different
ways it had been spent, but then recalled that
she had the funds at home. And she was able
to deposit it in the court registry. . . .
Ms. Dominguez has provided the Court with so
many versions of where these large sums of
money have gone that the Court can no longer
find that Ms. Dominguez has any credibility
with reference to the sourcing of these funds.

....

And the Court has made findings that Ms.
Dominguez has the absolute ability to pay.
She has affirmatively told the Court, if the
Court were to believe Ms. Dominguez, that she
can sell property in Mexico, it is hers to sell,
and she can supply that to the Court.
Again, I emphasize when she was to deposit a
large sum of money into the court registry and
she told the Court she did not have the money,
I believe within the next at least couple of
days, she was able to find the money. My
recollection is she found it at home and she
was able to deposit that sum in the court
registry.

21
¶ 47 Thus, the court concluded that Dominguez could not provide a

coherent, consistent account of what had happened to the funds in

the POD accounts and that it had provided multiple continuances

to Dominguez to resolve the nonpayment issues. Thus, the court

relied on evidence in the record to conclude not only that

Dominguez had a duty but also that she had not met her burden of

proof regarding her inability to pay. Unlike the contemnor in Elliott,

where the contemnor’s attorney “filed an accounting, detailing how

[the contemnor] expended the estate assets,” id. at 480, Dominguez

did not “sufficiently explain[] how” the missing funds had been

disbursed. Id. at 479. The court’s contempt order was supported

by analysis of the evidence in the record; as a result, we will not

displace it. See id. at 479-80 (Such findings by a trial court “shall

not be set aside unless clearly erroneous.”) (citations omitted).

¶ 48 Accordingly, we conclude that the district court did not err in

holding Dominguez in contempt.

VI. Attorney Fees

¶ 49 Finally, both parties seek attorney fees. Dominguez asserts

that she is entitled to attorney fees pursuant to C.R.C.P. 12(b)(5)

22
 and section 13-17-201, C.R.S. 2016, because the district court

should have dismissed Owens’ claim for lack of standing.2 Owens

also asserts that he is entitled to attorney fees pursuant to section

13-17-102, C.R.S. 2016, as well as C.A.R. 38(b) because

Dominguez’s claims are groundless, frivolous, and vexatious. We

conclude that neither party is entitled to an award of attorney fees.

A. Applicable Law

¶ 50 Under section 13-17-102, an award of attorney fees turns on

whether a claim “lacked substantial justification” — in other words,

whether it was “substantially frivolous, substantially groundless, or

substantially vexatious.” § 13-17-102(4). We will not award

attorney fees where a genuinely disputed issue exists and a party

presents a rational argument based on the evidence and the law.

See First Colo. Bank & Tr., N.A. v. Plantation Inn, Ltd., 767 P.2d 812,

814 (Colo. App. 1988). A losing position is not necessarily

groundless for purposes of awarding attorney fees, nor is a claim

groundless solely because the plaintiff failed to establish a prima

facie case if there is some credible evidence to support the claim.

2 Owens did not request attorney fees under C.R.C.P. 107(d)(2) in
the trial court for the contempt proceedings.

23
 See, e.g., Colo. Supply Co. v. Stewart, 797 P.2d 1303, 1307 (Colo.

App. 1990).

¶ 51 Section 13-17-201 applies to C.R.C.P. 12(b) dismissals of “all

actions brought as a result of a death or an injury to person or

property occasioned by the tort of any other person.” § 13-17-201;

see also Castro v. Lintz, 2014 COA 91, ¶ 12, 338 P.3d 1063, 1067.

An award of attorney fees under section 13-17-201 is mandatory

when a trial court dismisses a tort action under C.R.C.P. 12(b).

Castro, ¶ 12, 338 P.3d at 1067.

B. Analysis

¶ 52 We first conclude that Dominguez incorrectly relies on section

13-17-201, since it is limited to Rule 12(b) dismissals of tort

actions.

¶ 53 We next conclude that neither Owens nor Dominguez is

entitled to an award of attorney fees pursuant to section 13-17-102.

Both parties presented rational arguments based on evidence and

the law in regard to genuinely disputed issues. Their claims were

not groundless because they both presented some credible evidence

to support their claims. Therefore, we conclude that neither party

24
 is entitled to attorney fees. In any event, Dominguez is not entitled

to attorney fees because she has not prevailed on appeal.

VII. Conclusion

¶ 54 Accordingly, the judgments are affirmed.

JUDGE GRAHAM and JUDGE NAVARRO concur.

25