Opinion by Judge DAILEY.
¶ 1 Steven G. Francis, an attorney, appeals the district court's order awarding attorney fees to Stanton B. Southward. We vacate the order.
¶ 2 Francis was the attorney for SRS, Inc., which operated an automotive service business. Southward was a co-owner and employee
¶ 3 By May 7, 2010, Southward had disclosed two documents that proved that one of the vehicles, a van, had not been converted by him, but instead had been sold to a customer by another SRS employee. The trial court originally ruled that, because the documents were disclosed too close to the scheduled date for trial, the documents were inadmissible. When the trial was continued, however, Southward filed a motion to reconsider the ruling. The court granted the motion, rendering the documents admissible.
¶ 4 From May 7 through mid-August, 2010, SRS made no representations concerning the van. Then, on August 22, 2010 (three days before trial), SRS withdrew its conversion claim concerning the van.
¶ 5 At trial, Southward argued that because SRS had delayed in withdrawing the claim on the van, SRS's witnesses should not be believed with respect to the remaining conversion claims. In rebuttal, SRS's counsel, Francis, argued that the witnesses should not be blamed for the delay in withdrawing the claim because the responsibility to withdraw lay not with them but with him.
¶ 6 The jury returned a verdict awarding SRS damages on its conversion claim. It also returned a verdict for SRS on its breach of contract claim, but awarded no damages in connection therewith.
¶ 7 After trial, Southward moved for sanctions against Francis, arguing that, in failing to promptly withdraw the conversion claim with respect to the van after May 2010, Francis had violated C.R.C.P. 11, entitling Southward to an award of fees and costs incurred from May 2010 through August 22, 2010.
¶ 8 In response, Francis stated:
In a written order, the trial court found:
Ultimately, the court entered judgment in favor of Southward and against Francis for $2,858.65, representing fees and costs incurred by Southward (1) in the June 1 through August 22, 2010 period; (2) in filing the motion for sanctions; and (3) in establishing the amount of attorney fees awarded.
¶ 9 Francis contends that the trial court erred in awarding Southward attorney fees under C.R.C.P. 11. We agree.
¶ 10 Initially, we note that the trial court did not explicitly state that it was relying on Rule 11 in awarding fees here. However, Southward's motion was based solely on Rule 11, and the language used by the trial court in its order closely parallels that part of Rule 11(a) providing:
¶ 11 Significantly, however, this language appears at the end of Rule 11(a). Immediately preceding the above-quoted language are the parts of Rule 11(a) setting forth (1) certain duties of attorneys, and (2) the circumstance under which a Rule 11 sanction may be imposed.
¶ 12 As summarized by the supreme court in People v. Trupp, 51 P.3d 985, 988 (Colo. 2002) (Trupp I), Rule 11(a) imposes upon attorneys signing pleadings the duties to (1) read the pleadings; (2) undertake reasonable inquiry into their content; and (3) possess a proper purpose in filing them. Rule 11(a) provides that a sanction is to be imposed "[i]f a pleading is signed in violation of this Rule." C.R.C.P. 11(a).
¶ 13 In In re Trupp, 92 P.3d 923, 930 (Colo.2004) (Trupp II), the supreme court observed that the "Rule 11 inquiry focuses on pre-filing, pre-pleading behavior of the attorney, in light of an objective reasonableness standard." The inquiry "is not as broad as the current, amended counterpart federal rule," Trupp I, 51 P.3d at 990, which specifically encompasses attorney action taken after the signing and filing of a pleading. See Fed.R.Civ.P. 11(b) (covering attorney action in "signing, filing, submitting, or later advocating" a pleading, motion, or written paper).
¶ 14 In determining when a Rule 11 sanction would be appropriate, we find persuasive the following commentary from the secondary authority upon which the supreme court relied in Trupp I to conclude that our Rule 11 does not reach post-filing attorney conduct:
Shelia K. Hyatt & Stephen A. Hess, Colorado Civil Rules Annotated 121 (4th ed. 2005); see also Trupp I, 51 P.3d at 990 (relying on prior edition of same authority).
¶ 15 From these authorities, we conclude that a Rule 11 sanction can be imposed only, as the rule itself states, "[i]f a pleading is signed in violation of [the rule]," and not on the basis of any post-signing, post-filing conduct by the attorney.
¶ 16 In so concluding, we necessarily reject Southward's assertion that, because part of Rule 11(a) refers to voluntary dismissal or withdrawal of a claim, an attorney can be sanctioned under Rule 11 for failing to dismiss or withdraw a previously filed claim.
Stepanek v. Delta County, 940 P.2d 364, 370 n. 4 (Colo.1997); see also Switzer v. Giron, 852 P.2d 1320, 1321 (Colo.App.1993) (that part of Rule 11 "shields a litigant who voluntarily dismisses a claim within a reasonable time after learning that the claim cannot succeed"); Fed.R.Civ.P. 11 committee notes (1993 amendments) (analogous safe harbor provision in current version of federal Rule 11 allows a party to abandon a questionable contention without that abandonment being viewed as evidence of a violation).
¶ 18 In this case, Southward sought and was granted a Rule 11 sanction, based not on Francis's pre-signing, pre-filing behavior, but on his subsequent failure to promptly dismiss or withdraw his claim after discovering that it lacked merit. Because a Rule 11 sanction was not appropriate under these circumstances, the court's award of fees and cost must be vacated in its entirety.
¶ 19 Pursuant to sections 13-17-101 to -103, C.R.S.2011, Southward requests an award of attorney fees and costs incurred on appeal. We deny the request.
¶ 20 Under section 13-17-102, attorney fees are awardable in a civil action when a party pursues a position that lacks substantial justification. See § 13-17-102(2), C.R.S. 2011. Because Francis was successful in this appeal, his appeal did not lack substantial justification.
¶ 21 The order awarding fees and costs is vacated.
Judge TAUBMAN and Judge FOX concur.