Golden Run Estates, LLC v. Town of Erie , 401 P.3d 87 ( 2016 )

COLORADO COURT OF APPEALS 2016COA145
Court of Appeals No. 15CA1135
Boulder County District Court No. 14CV31112
Honorable Andrew Hartman, Judge
Golden Run Estates, LLC, a Colorado limited liability company; and Aaron
Harber,
Plaintiffs-Appellees,
v.
Town of Erie,
Defendant-Appellant.
JUDGMENT VACATED IN PART AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Freyre and Nieto*, JJ., concur
Announced October 6, 2016
RJB Lawyer, LLC, Robert J. Bruce, Denver, Colorado, for Plaintiffs-Appellees
Nathan Dumm & Mayer, P.C., J. Andrew Nathan, Marni Nathan Kloster,
Nicholas C. Poppe, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 This case arises out of defendant, Town of Erie, annexing a
320-acre property located in unincorporated Boulder County that
plaintiff Aaron Harber owned. Harber envisioned his company,
plaintiff Golden Run Estates, LLC, developing the property into a
sustainable, mixed-use community for 40,000 residents over 25 to
50 years. After the parties entered into a pre-annexation
agreement, Golden Run and Harber (the plaintiffs) sued Erie
because further negotiations did not result in an annexation
agreement. They brought four claims: two contract claims, one
claim for declaratory relief, and one claim for a judicial
disconnection decree.
¶2 After trial, the court concluded that it had subject matter
jurisdiction over the plaintiffs’ contract claims and entered
judgment on the jury’s award of damages of over $350,000. The
trial court also ordered judicial disconnection under section 31-12-
702, C.R.S. 2016. The only claims before us are Erie’s appeal of the
jury award on the plaintiffs’ two contract claims.1 Because we
1 The trial court entered a judicial decree disconnecting the property
from Erie, a ruling which Erie does not appeal. The court
concluded that it did not have subject matter jurisdiction over the
1
conclude that the trial court did not have subject matter
jurisdiction over either contract claim, we vacate that part of the
judgment, vacate the jury’s award of damages, and remand the case
with directions to grant Erie’s motion for directed verdict and for a
determination of the amount of attorney fees incurred by Erie for
this appeal.
I. Background
¶3 In 2013, Harber discussed with Erie his plan to develop the
property. The parties ultimately agreed to pursue annexation of the
property into Erie. Erie proposed the parties enter into a pre-
annexation agreement, as the first step of a three-part annexation
process. An annexation agreement and a detailed development plan
would follow the pre-annexation agreement.
¶4 In April 2013, Erie and the plaintiffs entered into a pre-
annexation agreement, which defined the roles of the plaintiffs and
Erie until the parties could enter into a more formal annexation
agreement. The parties anticipated they would reach an annexation
agreement by August 1, 2013, but did not do so.
plaintiffs’ declaratory relief claim, a ruling that they do not
challenge.
2
¶5 The pre-annexation agreement set forth remedies for both
parties in the event of a breach. While Erie retained “all remedies at
law and equity,” the plaintiffs negotiated for two remedies contained
in sections 4A and 4B of the pre-annexation agreement. As relevant
here, section 4A reads:
At any time on or after August 1, 2013, in the
event the Golden Run Annexation agreement
proposed by [the plaintiffs], as it may be
mutually amended by the parties hereto, is not
approved by [Erie] at the same time as [Erie]
approves the annexation of the Property, then,
in that event, at [the plaintiffs’] sole option,
[the plaintiffs] may retroactively withdraw the
Annexation Petition without penalty or further
obligation by written notice delivered to [Erie]
and the Property shall not be annexed by
[Erie], regardless of annexation approval or
any other actions taken by [Erie].
(Emphasis added.)2
2 Although the plaintiffs mentioned section 4B in their answer brief
as the basis for the court’s award of damages, Harber conceded at
the pretrial conference that section 4B could not be a basis for
relief: “I don’t have a problem promising you and entering in and
agree[ing] to an order that says I can’t seek relief under 4B.” The
court ruled that “4B will not form the basis of a Plaintiff remedy in
and of itself or a violation of 4B.” Therefore, we need not address
section 4B.
3
¶6 In October 2013, Erie’s Board of Trustees adopted Ordinance
30-2013, which annexed Golden Run into Erie. The ordinance
became effective on November 15, 2013.
¶7 In January 2014, the plaintiffs submitted a draft annexation
agreement for the Board of Trustees’ meeting. In the draft
agreement, Harber proposed that he alone would select the number
of units in Golden Run. However, a trustee proposed amending the
annexation agreement to allow Erie to approve the number of units
that Harber had selected. The plaintiffs did not want Erie to have
any “veto power” over the scale of Golden Run and thus rejected the
proposed agreement.
¶8 On February 24, 2014, 101 days after the annexation became
effective, the plaintiffs requested “retroactive nullification” of the
annexation of Golden Run. However, the next day, they withdrew
their request, and the parties continued to negotiate, but without
reaching agreement. Nonetheless, the plaintiffs agreed to move
forward with Erie’s initial zoning plan, given Erie’s assurances that
all the plaintiffs’ “rights to disconnect” would remain intact.
¶9 In July 2014, an Erie police officer responded to Golden Run
after the police department received a series of complaints about its
4
condition. Upon arrival, the police officer observed several
municipal code violations from the property’s edge, but a “tenant”
refused his entry onto the property. Nevertheless, the tenant
informed the officer that his mobile home lacked running water and
that he was forced to urinate and defecate outside. The officer
contacted Boulder County Adult Protective Services for the elderly,
at-risk tenant and obtained a search warrant to view the remainder
of the property.
¶ 10 The search revealed that four tenants were living in dwellings
unfit for human habitation. The structures on the property were in
various states of decay and concerns existed over numerous
deficiencies in the electrical systems exposed to outside elements.
An Erie building official ordered the tenants to vacate all dwellings
on the property. The plaintiffs believed that their requests for
disconnection or “retroactive nullification” of Golden Run’s
annexation ensured that they were “under no further obligation” to
Erie and thus were upset by the police action.
¶ 11 On July 30, 2014, the plaintiffs requested that the Board of
Trustees consider their proposed disconnection ordinance. Erie’s
Town Administrator informed the plaintiffs that they did not have a
5
right to disconnect the property. The plaintiffs objected because
disconnection was “guaranteed by the pre-annexation agreement.”
¶ 12 On August 15, 2014, the plaintiffs “(1) withdr[ew] our
Annexation Petition, (2) withdr[ew] our Zoning Application, and (3)
request[ed] to immediately disconnect (i.e. de-annex) from the Town
of Erie.” They also notified Erie of its alleged breach of the pre-
annexation agreement.
¶ 13 When Erie failed to remedy its alleged breach within the thirty-
day grace period provided in the pre-annexation agreement, the
plaintiffs initiated this lawsuit. They asserted four claims: (1)
breach of contract for Erie “not processing the de-annexation of the
Properties”; (2) breach of the implied covenant of good faith and fair
dealing for Erie exercising its discretion in a commercially
unreasonable fashion and without regard to the intent of the parties
when the pre-annexation agreement was executed; (3) declaratory
relief to “de-annex” or “disconnect” the properties from Erie; and (4)
an alternative claim for a judicial decree disconnecting the
properties from Erie.
¶ 14 After the plaintiffs rested their case, Erie moved for a directed
verdict on several grounds. It asserted that the trial court lacked
6
subject matter jurisdiction over the breach of contract claims
because the Municipal Annexation Act of 1965 (the Act), §§ 31-12-
101 to -123, C.R.S. 2016, precluded the relief the plaintiffs sought.
Erie also moved for a directed verdict on damages, arguing that the
plaintiffs’ attempts to value Golden Run without any expert
testimony were speculative as a matter of law. Erie also moved for
a directed verdict on the bad faith claim.
¶ 15 As relevant here, the court concluded that it had subject
matter jurisdiction over the plaintiffs’ contract claims and denied
Erie’s motion for directed verdict. The court entered judgment in
the plaintiffs’ favor, totaling $362,500 in damages: $305,000 on
their breach of contract claim and $57,500 on their claim for
breach of the implied covenant of good faith and fair dealing.
¶ 16 Erie raises four contentions on appeal: (1) the trial court erred
under the Act in concluding that it had subject matter jurisdiction
over the plaintiffs’ contract claims and in upholding the breach of
contract verdict; (2) the court erred in upholding the jury’s award of
damages for a breach of the implied covenant of good faith and fair
dealing despite provisions of the Act that prohibit such an award;
(3) the court erred in allowing the jury to consider the plaintiffs’
7
damages for Golden Run’s lost opportunity costs in light of the
insufficient evidence presented at trial; and (4) the court abused its
discretion in permitting the plaintiffs’ property manager to testify
because he was not qualified as an expert.
¶ 17 We agree with Erie that the trial court did not have subject
matter jurisdiction over the plaintiffs’ contract claims. Therefore,
we need not address their contentions relating to the sufficiency of
the evidence concerning lost opportunity costs or the property
manager’s testimony.
II. Subject Matter Jurisdiction
¶ 18 Erie contends that the trial court lacked subject matter
jurisdiction over the plaintiffs’ contract claims because they did not
bring their claims within the jurisdictional sixty-day limitation
period under section 31-12-116(2)(a)(I), C.R.S. 2016. On the other
hand, the plaintiffs respond that their contract claims were not
controlled by the Act and that section 31-12-116 is inapplicable.
We agree with Erie.
A. Standard of Review
¶ 19 We review de novo a court’s subject matter jurisdiction. Tulips
Invs., LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 11, 340 P.3d 1126,
8
1131. Interpretation of the Act is a question of law, which we also
review de novo. Bd. of Cty. Comm’rs v. City of Aurora, 62 P.3d 1049,
1052 (Colo. App. 2002). Last, we review de novo the interpretation
of contract terms. Edge Telecom, Inc. v. Sterling Bank, 143 P.3d
1155, 1159 (Colo. App. 2006).
B. Principles of Statutory Interpretation
¶ 20 “Our review is controlled by the Annexation Act.” Town of
Superior v. Midcities Co., 933 P.2d 596, 600 (Colo. 1997). In
construing its statutory provisions, we give effect to the intent of the
General Assembly. See Allstate Ins. Co. v. Smith, 902 P.2d 1386,
1387 (Colo. 1995). We first look to the statutory language, giving
words and phrases their commonly accepted and generally
understood meanings. Id.; Bertrand v. Bd. of Cty. Comm’rs, 872
P.2d 223, 228 (Colo. 1994). Where the language of a statute is
plain and the meaning is clear, we need not resort to interpretive
rules of statutory construction, but must apply the statute as
written. Allstate Ins. Co., 902 P.2d at 1387; Bertrand, 872 P.2d at
228.
9
C. Principles of Contract Interpretation
¶ 21 “The primary goal of contract interpretation is to determine
and give effect to the intent of the parties,” which is to be
determined from the language of the instrument itself. Ad Two, Inc.
v. City & Cty. of Denver, 9 P.3d 373, 376 (Colo. 2000). Courts must
enforce contracts as written. Janicek v. Obsideo, LLC, 271 P.3d
1133, 1138 (Colo. App. 2011). In interpreting a contract, we must
“apply the plain meaning of the words used, . . . subject to
interpretation from the context and circumstances of the
transaction.” First Christian Assembly of God, Montbello v. City &
Cty. of Denver, 122 P.3d 1089, 1092 (Colo. App. 2005) (citation
omitted).
D. Applicable Law
¶ 22 Annexation is a special statutory proceeding where a property,
if lawfully annexed, becomes a part of the annexing municipality by
detaching the property from the county in which it lies. Superior,
933 P.2d at 600-01.
¶ 23 If any landowner “believes itself to be aggrieved by the acts of
the governing body of the annexing municipality,” the landowner
may have such acts reviewed in proceedings instituted in a “district
10
court having jurisdiction of the county in which the annexed area is
located.” § 31-12-116(1)(a). Any party who wishes to bring such an
action must file a motion for reconsideration “within ten days of the
effective date of the ordinance finalizing the challenged annexation.”
§ 31-12-116(2)(a)(II). Compliance with this provision is a condition
precedent to the right to obtain judicial review under this section.
Id.
¶ 24 Further, “[a]ll such actions to review the findings and the
decision of the governing body shall be brought within sixty days
after the effective date of the ordinance [approving an annexation],
and, if such action is not brought within such time, such action
shall forever be barred.” § 31-12-116(2)(a)(I). Section 31-12-116
provides “the only procedure for judicial review of municipal
annexations implemented under the Act.” Bd. of Cty. Comm’rs v.
City of Woodland Park, 2014 CO 35, ¶ 11, 333 P.3d 55, 58. The
time limitation in section 31-12-116(2)(a)(I) is jurisdictional, and
because it is not a true statute of limitations, as the supreme court
stated in dicta in Fort Collins-Loveland Water Dist. v. City of Fort
Collins, 174 Colo. 79, 84, 482 P.2d 986, 989 (1971) (interpreting
predecessor statute), it cannot be tolled or waived.
11
¶ 25 We agree with the dicta and conclude that it applies here.
¶ 26 In addition, annexations “shall not be directly or collaterally
questioned in any suit, action, or proceeding, except as expressly
authorized in this section.” § 31-12-116(4).
¶ 27 Pre-annexation agreements and contracts are valid under the
Act, but a party seeking to enforce an annexation contract must
still comply with the requirements found in the Act. Superior, 933
P.2d at 602; see also § 31-12-112(1), C.R.S. 2016.
E. Analysis
¶ 28 The plaintiffs contend that their contract claims did not
challenge the annexation of the property, but rather, the claims
sought to disconnect the property and to enforce the terms of the
pre-annexation agreement, which, they argue, “specifically provided
for disconnection.” We disagree.
¶ 29 The plaintiffs use several different terms — disconnection, de-
annexation, or withdrawal of the annexation petition — in their
brief seemingly interchangeably. We conclude that disconnection
and de-annexation are equivalent, but that withdrawal of an
annexation petition has a different meaning. We will discuss the
12
definition of each term below because their meanings are essential
to our analysis.
¶ 30 We begin with “withdrawal of the annexation petition.” An
annexation petition is a petition presented to a municipality that is
signed by landowners in the area to be annexed. See § 31-12-
107(1), C.R.S. 2016. The petition for annexation enables the
annexation of a property and has significance only until the
property is actually annexed or the petition is withdrawn. See
generally Superior, 933 P.2d at 599 (discussing that a party
withdrew its petition for annexation so that it could petition a
different municipality to annex its property).
¶ 31 In contrast, disconnection procedures “disconnect” or “de-
annex” an annexed property from the municipality of which it was a
part. See §§ 31-12-501, -702, C.R.S. 2016; see generally Grandote
Golf & Country Club, LLC v. Town of La Veta, 252 P.3d 1196, 1199
(Colo. App. 2011) (discussing whether a later ordinance effectively
disconnected the property that a prior ordinance had purported to
annex). We conclude that disconnection and de-annexation are
analogous. The Act provides, as relevant here, for two avenues to
13
achieve disconnection — by ordinance and by court decree.3 Under
section 31-12-501, a landowner “may apply to the governing
body . . . for the enactment of an ordinance disconnecting [its]
land,” and it is the duty of such governing body to “give due
consideration to [such] application.” As noted, the plaintiffs
requested disconnection of Golden Run from Erie, but Erie denied
their request. This request was made pursuant to the pre-
annexation agreement and did not cite section 13-12-501.
¶ 32 Under section 31-12-702, a landowner “may petition the
district court for the county in which such land is situated to have
the same disconnected from said incorporated town.” Although the
plaintiffs did not cite section 31-12-702 in their complaint, they
sought and obtained relief under this section when they asked for a
judicial disconnection of Golden Run from Erie. Erie does not
challenge the court’s judicial disconnection of Golden Run on
appeal.
3The Act also provides a third avenue to achieve disconnection in
part 6 of the Act, “Disconnection by Court Decree — Statutory
Cities.” § 31-12-601, C.R.S. 2016. We need not address this
section because Erie is a statutory town, not a statutory city, as
both parties stipulated before the trial court.
14
¶ 33 Thus, withdrawal of an annexation petition and disconnection
or de-annexation have different meanings. Withdrawing an
annexation petition relates to proceedings prior to annexation, and
disconnection or de-annexation relate to proceedings after
annexation. Withdrawing an annexation petition prevents an
annexation, and disconnection or de-annexation ends it.
¶ 34 Whatever term the plaintiffs wish to use — whether
disconnection, de-annexation, or withdrawing their annexation
petition — in interpreting their rights under the pre-annexation
agreement, we must first turn to the contract itself.4 Section 4A of
the contract provides that the plaintiffs “may retroactively withdraw
the Annexation Petition.” In our view, the plaintiffs could not seek
to invoke section 4A of the pre-annexation agreement to withdraw
their annexation petition after Erie had annexed Golden Run in its
ordinance. In contrast, their remedy under section 4A of the pre-
annexation agreement only applied before Erie annexed Golden
Run.
4In the plaintiffs’ brief, they also refer to requesting “retroactive
nullification” of the annexation petition. We need not address the
meaning of this phrase because it was not a remedy for which they
bargained in the contract, nor is it a remedy provided by statute.
15
¶ 35 We disagree with the plaintiffs’ contention that the word
“retroactive” enabled them to seek to withdraw their annexation
petition at any time, even after an annexation ordinance had been
adopted. Section 4A, after providing for retroactive withdrawal of
an annexation petition, then states that “the Property shall not be
annexed by Erie.” This language strongly suggests that withdrawal
of the annexation petition must precede the adoption of an
annexation ordinance. Also, the plaintiffs’ interpretation would lead
to an unreasonable result because it could allow rescission of an
ordinance after property had been bought and sold based on
expectations arising from the adoption of an annexation ordinance.
See First Christian Assembly of God, Montbello, 122 P.3d at 1092.
¶ 36 We further conclude, as discussed below, that the provision in
section 4A allowing retroactive withdrawal of a petition could only
be invoked consistently with the jurisdictional timeframe in section
31-12-116.
¶ 37 Also, the plaintiffs’ assertion that they did not challenge the
annexation is contrary to their own complaint and theory of breach
of contract. The plaintiffs’ breach of contract claim alleged that Erie
breached the pre-annexation agreement by “not processing the de-
16
annexation of the Properties.” The plaintiffs’ second contract claim
arose out of their allegations that Erie was “exercising its discretion
in a commercially unreasonable fashion and without regard to the
intent of the parties when the pre-Annexation agreement was
executed.” Consequently, both claims related to the annexation.
The fact that the plaintiffs’ claims were based in contract does not
alter the claims’ status as ones that questioned Erie’s decision not
to allow the plaintiffs to withdraw their annexation petition of
Golden Run. See § 31-12-116(2)(a)(I) (applying to “actions to review
the findings and the decision of the governing body”).
¶ 38 Accordingly, we also conclude that the plaintiffs’ claims were
impermissible collateral attacks on the annexation. It is impossible
to find a breach of contract based on Erie’s alleged refusal to “de-
annex” Golden Run without questioning the annexation itself.
¶ 39 Having concluded that the plaintiffs’ claims related to the
annexation, we further conclude that section 31-12-116 applies to
bar their contract claims, as it governs “[a]ll such actions to review
the findings and the decision of the governing body.” § 31-12-
116(2)(a)(I); see also Superior, 933 P.2d at 600-02 (applying section
31-12-116 to a petition for annexation). We conclude that Erie’s
17
decision not to agree to the plaintiffs’ requests to “withdraw” the
annexation petition was a “decision of the governing body.” § 31-
12-116(2)(a)(I).
¶ 40 We next conclude that the plaintiffs did not file a motion for
reconsideration or seek judicial relief within the limitation periods
as required. § 31-12-116(2)(a)(I), (II). As noted above, the
annexation became effective under Erie’s ordinances on November
15, 2013. Thus, the ten-day deadline to file a motion for
reconsideration lapsed on November 25, 2013, and the sixty-day
period for judicial review ran on January 14, 2014. The plaintiffs
did not file a motion to reconsider and did not seek judicial relief
until September 4, 2014. Further, the first time the plaintiffs
objected to the annexation was February 25, 2014, a full month
after the sixty-day limitation period ran.
¶ 41 As described above, section 31-12-116(2)(a)(I) is jurisdictional.
Fort Collins-Loveland Water Dist., 174 Colo. at 84, 482 P.2d at 989.
Even though neither party characterizes section 31-12-116(2)(a)(I)
as such, we conclude that it is a nonclaim statute. Such a statute
deprives a trial court of subject matter jurisdiction, and its time
limits cannot be tolled or waived. Like other nonclaim statutes,
18
section 31-12-116(2)(a)(I) provides that certain claims are
“forever . . . barred” if not brought within statutorily specified
periods. See § 15-12-1006, C.R.S. 2016 (claims against
distributees are “forever barred” after limitation period); In re Estate
of Shuler, 981 P.2d 1109, 1114 (Colo. App. 1999) (holding that
section 15-12-1006 is a nonclaim statute and deprives the trial
court of subject matter jurisdiction when it is applicable); see also
§ 24-10-109, C.R.S. 2016 (stating that under the Colorado
Governmental Immunity Act, claims against government must be
brought within limitation period or are “forever barred”); Barnhill v.
Pub. Serv. Co. of Colo., 649 P.2d 716, 718 (Colo. App. 1982) (holding
that section 24-10-109 is a nonclaim statute and imposes “a
condition precedent, namely, filing notice within the time specified,
to the enforcement of the right of action for the benefit of the party
against whom the claim is made”), aff’d, 690 P.2d 1248 (Colo.
1984); see also Marin Metropolitan Dist. v. Landmark Towers Ass’n,
Inc., 2014 COA 40, ¶ 43, ___ P.3d ___. ___ (section 32-1-105(7),
C.R.S. 2016 creates jurisdictional bar to review of district’s court’s
ruling regarding creation of special metropolitan district).
Therefore, section 31-12-116(2)(a)(I) is a nonclaim statute whose
19
time limitations cannot be waived or tolled by a contract or other
agreement. See First Interstate Bank of Denver, N.A. v. Cent. Bank
& Tr. Co. of Denver, 937 P.2d 855, 861 (Colo. App. 1996) (holding
that “parties cannot waive jurisdictional requirements”).
¶ 42 Because section 31-12-116(2)(a)(I) is a nonclaim statute, the
parties’ pre-annexation agreement could not waive the sixty-day
limitation period. Thus, even if we assume that the plaintiffs could
“retroactively withdraw their petition” as provided in section 4A,
they needed to withdraw their annexation petition within the sixty-
day jurisdictional limitation period or section 31-12-116 would
extinguish their claim.5
¶ 43 Nevertheless, the plaintiffs rely on Geralnes B.V. v. City of
Greenwood Village, 583 F. Supp. 830 (D. Colo. 1984), to argue that
where parties do not challenge the annexation of property, but,
rather, seek disconnection in accordance with their contract terms,
the complaint is not subject to dismissal for failure to file suit
within the Act’s deadlines. However, unlike the plaintiffs here, the
5 The plaintiffs continuously argued that they were entitled to
“retroactive nullification” of the annexation petition. Because of our
disposition, we need not address whether the plaintiffs’ use of that
language had any significance.
20
plaintiff in Geralnes bargained specifically for the “remedy of
disconnection of the Property . . . in accordance with” section 31-
12-119 C.R.S. 2016; Id. at 838. Because section 31-12-119 has not
been changed since the Geralnes B.V. case, the version that the
court considered is the same as the current one: 31-12-119, C.R.S.
2016. In the pre-annexation agreement, the plaintiffs contracted
only for the right to “retroactively withdraw the Annexation
Petition.” The pre-annexation agreement is unambiguous.
Disconnection is not a remedy contained in the plaintiffs’ pre-
annexation agreement.
¶ 44 The plaintiffs also contend that Erie’s interpretation of the Act
would enable a municipality to lure a landowner into annexation
under the premise of fulfilling certain promises, only to repudiate
those promises when annexation had been accomplished, which
would be unfair, unjust, and bad public policy. We disagree. The
plaintiffs, in confusing the meanings of withdrawing an annexation
petition and disconnection, misconstrue the consequences of our
statutory interpretation.
¶ 45 A municipality would not be able to “lure” a landowner and
repudiate its promises with no remedy for the landowner. Rather, if
21
a municipality does not fulfill its promises, a landowner has two
remedies: either follow the procedures set forth in section 31-12-
116 and challenge the annexation within sixty days or request a
disconnection under section 31-12-501. If the municipality is a
town and refuses to disconnect the property, the landowner may
still request a judicial decree disconnecting the property. See § 31-
21-702. The fact that the plaintiffs obtained a judicial decree
disconnecting the property weakens their argument on appeal.
¶ 46 Therefore, we conclude that the trial court lacked subject
matter jurisdiction over the plaintiffs’ contract claims.6
III. Attorney Fees and Costs
¶ 47 Erie requests that, if we determine that the trial court lacked
subject matter jurisdiction over the plaintiffs’ breach of contract
claims, we award it attorney fees and costs under section 31-12-
116(2)(a)(IV). Erie also requests attorney fees and costs under
section 14 of the pre-annexation agreement if it prevails. Likewise,
6 We also conclude that the trial court was precluded from
considering the plaintiffs’ contract claims under section 31-12-
116(2)(a)(I), C.R.S. 2016, because they failed to timely file a motion
to reconsider, which was a condition precedent to judicial review.
22
the plaintiffs request that we award them attorney fees pursuant to
the pre-annexation agreement.
¶ 48 Section 14 of the pre-annexation agreement provides that
“once an award has been made . . . by a court, the defaulting party
shall pay the other’s reasonable attorney’s fees and other costs
incurred in enforcing the provision of this Pre-Annexation
Agreement.”
¶ 49 Because we conclude that the trial court lacked subject matter
jurisdiction to consider the plaintiffs’ contract claims, we award Erie
reasonable attorney fees in prosecuting this appeal under section
14 of the pre-annexation agreement and section 31-12-116(2)(a)(IV).
The amount of fees shall be determined by the trial court. See
C.A.R. 39.1.
IV. Conclusion
¶ 50 The judgment on the plaintiffs’ contract claims is vacated. The
jury’s award of damages is vacated, and the case is remanded with
directions to grant Erie’s motion for directed verdict and for a
determination of the amount of attorney fees incurred by Erie for
this appeal.
JUDGE FREYRE and JUDGE NIETO concur.
23