Edward O'Brien (Partner-Louisville, KY), Kim Koehler (Partner-Denver, CO), and Jason Melichar (Partner-Denver, CO) secured a significant appellate victory for Wilson Elser’s attorney client when the Colorado Court of Appeals affirmed the probate court’s order awarding the client more than $400,000 in attorney fees and costs following an earlier defense verdict. The appeal arose from a professional liability action brought by a former protected person against Wilson Elser’s client, who the court had appointed as a limited conservator after the protected person lost more than $1 million to online romance scams.
After the conservatorship was terminated, the former protected person pursued a Petition for Surcharge alleging that our client had breached her fiduciary duty and seeking substantial damages. Kim and Jason successfully defended the client at a week-long bench trial, after which the probate court found that the petitioner failed to prove any fiduciary-duty breach and entered judgment for the client. As the prevailing party under the applicable probate framework, the client was awarded more than $400,000 in fees and costs.
On appeal, the petitioner challenged the compensation and costs award, arguing that she was entitled to a hearing on its reasonableness and that the award violated various Colorado probate statutes. The Colorado Court of Appeals rejected those arguments and affirmed the probate court’s order in full. The court held that the petitioner waived her argument that a hearing was mandatory under section 15-10-604(4), C.R.S., because she had not raised that statutory basis in the probate court, instead asking only for a discretionary hearing under a different rule. The court also rejected her statutory challenge to the award of fees and costs for litigating the surcharge and discharge-compensation petitions, holding that sections 15-10-602(1) and 15-10-602(6), C.R.S., are stand-alone provisions and that a fiduciary’s good-faith prosecution or defense of a proceeding is compensable under section 15-10-602(6) regardless of whether the same litigation also qualifies as services rendered on behalf of the estate under section 15-10-602(1).
The court declined to reach several remaining arguments because they were insufficiently developed, including challenges concerning alleged opposition to removal, testimony at a termination hearing, post-termination services, and the scope of the conservator’s authority after a removal petition.
The decision preserves the probate court’s substantial fee and cost award and provides the client another important victory in the trial and appellate proceedings. Edward’s work on the appeal was pivotal in protecting the client’s significant judgment for fees and costs and allowing her to proceed with collection, absent further review.