v. Scott , 2019 COA 154 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 10, 2019
2019COA154
No. 18CA0990, Nesbitt v. Scott — Eminent Domain — Private
Condemnation — Attorney Fees; Civil Procedure — District
Court Practice Standards — Costs and Attorney Fees
A division of the court of appeals considers whether C.R.C.P.
121 § 1-22(2)(b) requires that a written fee agreement, or some
other materials evidencing the fee agreement, accompany every
motion for attorney fees and costs brought under section 38-1-
122(1), C.R.S. 2019. The division concludes that C.R.C.P. 121 § 1-
22(2)(b) does not impose such a requirement.
COLORADO COURT OF APPEALS 2019COA154
Court of Appeals No. 18CA0990
Pueblo County District Court No. 11CV490
Honorable Jill S. Mattoon, Judge
Rita A. Nesbitt, as trustee of the Rita A. Nesbitt Trust,
Petitioner-Appellant,
v.
Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott,
Respondents-Appellees.
ORDER AFFIRMED
Division III
Opinion by JUDGE FURMAN
Webb and Brown, JJ., concur
Announced October 10, 2019
Fowler, Schimberg, Flanagan & McLetchie, P.C., Steven W. Fox, Golden,
Colorado, for Petitioner-Appellant
Semler & Associates, P.C., R. Parker Semler, Jeremy Goldblatt, Denver
Colorado, for Respondents-Appellees
¶1 In this appeal of an award of attorney fees and costs, we
consider whether C.R.C.P. 121, section 1-22(2)(b) requires that a
written fee agreement, or some other materials evidencing the fee
agreement, accompany every motion for attorney fees and costs
brought under section 38-1-122(1), C.R.S. 2019. We conclude that
C.R.C.P. 121, section 1-22(2)(b) does not impose such a
requirement.
¶2 This case arose out of a property dispute between petitioner,
Rita A. Nesbitt, trustee of the Rita A. Nesbitt Trust (Nesbitt), and
respondents, Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott
(collectively the Scotts). The dispute led to protracted litigation,
including an action in trespass and private condemnation
proceedings, that lasted nearly a decade and involved two reversals
by divisions of this court.
¶3 Ultimately, the trial court awarded the Scotts $400,431.85 in
attorney fees and $35,066.25 in costs. Nesbitt mounts two
challenges to this award of attorney fees and costs. First, she
contends that the trial court abused its discretion by awarding
attorney fees and costs to the Scotts because C.R.C.P. 121, section
1-22(2)(b) required that the Scotts attach a written fee agreement,
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or some other materials evidencing the fee agreement, to their
motion for attorney fees and costs, but they did not do so. Second,
she contends that she should not have to pay the award associated
with a summary judgment motion that was ultimately unsuccessful
because the motion “unnecessarily increased the length of the
case.” We disagree with each of Nesbitt’s contentions and therefore
affirm.
I. The Property Dispute
¶4 Originally, the Scotts granted Nesbitt permission to construct
a roadway across their land. When disagreement arose as to the
size and character of the roadway, the Scotts revoked Nesbitt’s
permission. But Nesbitt continued to build the roadway. The
Scotts then retained Semler & Associates, P.C. (Semler) to represent
them in a trespass action against Nesbitt.
¶5 The trial court in the trespass action found that Nesbitt did
“not possess any valid legal right (easement) to use [the Scotts’]
lands” because she “may be able to acquire an easement by
necessity” across the neighboring Middle Creek Properties.
¶6 Nesbitt then filed a petition in condemnation against the
Scotts for “immediate possession of the roadway right-of-way”
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across the Scotts’ property. Nesbitt alleged in her petition that her
property was “land locked” and that “access through the Scott
parcel is indispensable to the practical use” of her property.
¶7 The Scotts again retained Semler to represent them. In a
motion to dismiss, the Scotts claimed that Nesbitt was precluded
from bringing a condemnation action because the trial court in the
trespass action had determined that Nesbitt did not possess a valid
legal right to cross the Scott parcel. But the district court denied
this motion.
¶8 The Scotts then moved for summary judgment, arguing issue
preclusion. This time, the district court granted the Scotts’ motion,
concluding “the elements for issue preclusion are established”
because “there was a final judicial determination by this Court that
Nesbitt has a viable common law easement by necessity” across the
Middle Creek Properties.
¶9 Nesbitt appealed the district court’s grant of summary
judgment. A division of this court noted that the trial court in the
trespass action “made a legal determination that Nesbitt had the
right to claim an implied easement across” the Middle Creek
Properties, but not that “the claim gave rise to an existing
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easement.” Nesbitt v. Scott, slip op. at 10 (Colo. App. No.
12CA2211, Aug. 22, 2013) (not published pursuant to C.A.R. 35(f)).
Thus, the division reversed and remanded the case for an
evidentiary hearing because the trial court did not make all the
factual findings “necessary to adjudicate Nesbitt’s private
condemnation claim.” Id. at 12.
¶ 10 On remand, after a three-day hearing, the trial court denied
Nesbitt’s petition in condemnation, finding that “an alternative
route exists to gain access to the Nesbitt Property across a common
law way by necessity.” A division of this court later reversed the
judgment dismissing Nesbitt’s petition and remanded for the trial
court to determine whether Nesbitt’s alternative route provided
Nesbitt with access to a public road. Nesbitt v. Scott, (Colo. App.
No. 14CA2265, Apr. 28, 2016) (not published pursuant to C.A.R.
35(f)).
¶ 11 Meanwhile, the trial court held an evidentiary hearing and
awarded the Scotts $173,838.30 in attorney fees and $27,559.87 in
costs. Nesbitt appealed this award, contending that a party seeking
attorney fees does not comply with C.R.C.P. 121, section 1-22(2)(b)
“without a copy of the engagement letter or proof as to its terms.”
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But Nesbitt’s appeal of this award was dismissed by stipulation of
the parties after the division reversed and remanded to determine
whether Nesbitt’s alternative route provided her with access to a
public road.
¶ 12 On remand, the trial court found that Nesbitt’s alternative
route connected with a public road and therefore dismissed
Nesbitt’s petition. A division of this court affirmed this dismissal.
See Nesbitt v. Scott, (Colo. App. No. 17CA1416, Oct. 4, 2018) (not
published pursuant to C.A.R. 35(e)).
II. The Award of Attorney Fees and Costs
¶ 13 The Scotts filed another motion for an award of attorney fees
and costs. This motion was based on section 38-1-122(1), which
provides: “If the court finds that a petitioner is not authorized by
law to acquire real property or interests therein sought in a
condemnation proceeding, it shall award reasonable attorney fees,
in addition to any other costs assessed, to the property owner who
participated in the proceedings.” § 38-1-122(1).
¶ 14 In a written order, the trial court initially noted that “neither
[the Scotts] nor their counsel have been able to produce a copy of
the written fee agreement.” But, said the trial court, “C.R.C.P. 121
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§ 1-22(2)(b) does not state that failure to produce a written fee
agreement requires the Court to deny a fee application, it only
suggests that the written fee agreement should be attached to the
fee application if it exists and is available.” So, the trial court relied
on other evidence, such as testimony that the Scotts
• signed a fee agreement;
• agreed to be bound to pay the hourly rates set forth in
Semler’s fee affidavits;
• received communications regarding rate increases and
accepted those rate increases; and
• paid all fees.
¶ 15 And the court relied on testimony from R. Parker Semler,
president of Semler, that a flat fee agreement was briefly discussed
but never put in place. Given this evidence, the trial court
concluded that the Scotts had adequately complied with C.R.C.P.
121, section 1-22(2)(b).
III. Standard of Review
¶ 16 We review a trial court’s decision to award attorney fees for
abuse of discretion. See Crandall v. City of Denver, 238 P.3d 659,
661 (Colo. 2010). A trial court abuses its discretion if the award is
6
manifestly arbitrary, unreasonable, or unfair. Planning Partners
Int’l, LLC v. QED, Inc., 2013 CO 43, ¶ 12. Whether attorney fees are
reasonable is a question of fact for the trial court; thus, we will not
disturb its ruling on review unless patently erroneous and
unsupported by the evidence. Payan v. Nash Finch Co., 2012 COA
135M, ¶ 16.
¶ 17 With this in mind, we turn to Nesbitt’s contentions on appeal.
IV. Attorney Fees and Costs
¶ 18 We first consider whether the trial court abused its discretion
by awarding attorney fees and costs to the Scotts because C.R.C.P.
121, section 1-22(2)(b) required that the Scotts attach a written fee
agreement, or some other materials evidencing the fee agreement, to
their motion for attorney fees and costs and they did not do so. We
conclude that because C.R.C.P. 121, section 1-22(2)(b) did not
impose such a requirement on the Scotts, the trial court did not
abuse its discretion.
A. Interpretation of Statutes and Rules
¶ 19 We review the interpretation of statutes and rules of civil
procedure de novo. See MDC Holdings, Inc. v. Town of Parker, 223
P.3d 710, 717 (Colo. 2010); Strudley v. Antero Res. Corp., 2013 COA
7106, ¶ 13, aff’d, 2015 CO 26. When interpreting statutes, we “give
effect to every word and render none superfluous.” Colo. Water
Conservation Bd. v. Upper Gunnison River Water Conservancy Dist.,
109 P.3d 585, 597 (Colo. 2005), superseded by statute on other
grounds, Ch. 197, secs. 1-3, §§ 37-92-102, -103, -305, 2006 Colo.
Sess. Laws 906-09.
¶ 20 And, when statutes and rules are clear and unambiguous, we
will give effect to their plain and ordinary meaning. See City & Cty.
of Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d 1270,
1275 (Colo. 2010); MDC Holdings, 223 P.3d at 717.
B. Section 38-1-122(1) and C.R.C.P. 121, Section 1-22(2)(b)
¶ 21 Section 38-1-122(1) is clear and unambiguous. In a
condemnation proceeding, when a petitioner is not authorized by
law to condemn real property, the court “shall award reasonable
attorney fees, in addition to any other costs assessed, to the
property owner who participated in the proceedings.” § 38-1-
122(1). This includes appellate fees incurred in any appeal from the
underlying case. See Akin v. Four Corners Encampment, 179 P.3d
139, 147-48 (Colo. App. 2007) (citing Hartman v. Freedman, 197
Colo. 275, 281, 591 P.2d 1318, 1322 (1979)).
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¶ 22 The procedure governing a request for attorney fees is found in
C.R.C.P. 121, section 1-22(2)(b), which reads, in pertinent part:
“The motion shall be accompanied by any supporting
documentation, including materials evidencing the attorney’s time
spent, the fee agreement between the attorney and client, and the
reasonableness of the fees.”
¶ 23 Nesbitt urges us to interpret C.R.C.P. 121, section 1-22(2)(b)
as requiring every motion for attorney fees and costs, including the
Scotts’ motion, to be accompanied by a written fee agreement or
some other written materials evidencing the fee agreement. We
disagree with this interpretation.
¶ 24 C.R.C.P. 121, section 1-22(2)(b) requires “any” documentation
that supports a motion for attorney fees and costs to accompany
the motion. The word “any” modifies “supporting documentation”
and is “used as a function word . . . to indicate one that is not a
particular or definite individual of the given category but whichever
one chance may select.” Webster’s Third New International
Dictionary 97 (2002). Hence, the plain and ordinary language of
C.R.C.P. 121, section 1-22(2)(b) does not specify that a “particular
or definite” type of supporting documentation, such as a written fee
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agreement, must accompany a motion for attorney fees and costs.
Id.; see Farmers Reservoir & Irrigation Co., 239 P.3d at 1275; MDC
Holdings, 223 P.3d at 717; Upper Gunnison River Water
Conservancy Dist., 109 P.3d at 597.
¶ 25 And, while C.R.C.P. 121, section 1-22(2)(b) refers to “materials
evidencing the attorney’s time spent, the fee agreement between the
attorney and client, and the reasonableness of the fees,” we
conclude that the rule refers to these “materials” as non-exhaustive
examples of documentation that are “includ[ed]” in the category of
“supporting documentation.” Indeed, C.R.C.P. 121, section 1-
22(2)(b) describes “supporting documentation” as “including” the
enumerated “materials.” See Webster’s Third New International
Dictionary 1143 (2002) (To “include” means “to place, list, or rate as
a part or component of a whole or of a larger group, class, or
aggregate.”). As discussed above, because the word “any” modifies
the phrase “supporting documentation” in C.R.C.P. 121, section 1-
22(2)(b), this rule does not require a particular type of “supporting
documentation,” including the particular “materials” identified in
the rule, to accompany the motion.
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¶ 26 Yet, Nesbitt contends that because Rule 1.5 of the Colorado
Rules of Professional Conduct generally requires attorney fee
agreements to be in writing, “it is reasonable to conclude that the
legislature intended that submission of contemporaneous written
documentation which memorializes the fee agreement, whether
formal or informal, [be] a basic requirement for any application of
attorney’s fees.” Because we conclude that the language of C.R.C.P.
121, section 1-22(2)(b) clearly provides that not every motion for
attorney fees and costs must be accompanied by a written fee
agreement, we need not look to Colo. RPC 1.5 in interpreting the
rule. See Crawford v. Melby, 89 P.3d 451, 453 (Colo. App. 2003)
(“In determining the meaning of procedural rules, we give the words
their plain meaning, and if the language of the rules is clear and
unambiguous, we need not look further to determine their
meaning.”).
¶ 27 Nesbitt also contends that our interpretation must be guided
by CRE 1002-1004 (Colorado’s best evidence rule), which requires
an “original” to prove the content of a writing. We disagree. Again,
because we have concluded that the language of C.R.C.P. 121,
section 1-22(2)(b) clearly provides that not every motion for attorney
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fees and costs must be accompanied by a written fee agreement, we
need not look to a rule of evidence to guide our interpretation. See
Crawford, 89 P.3d at 453.
¶ 28 Nesbitt also relies on Ravenstar LLC v. One Ski Hill Place LLC,
2016 COA 11, ¶¶ 60-66, aff’d, 2017 CO 83, for the proposition that
unless the moving party’s attorneys are salaried, C.R.C.P. 121,
section 1-22(2)(b) requires a written fee agreement to accompany a
motion for attorney fees. This reliance is misplaced.
¶ 29 In Ravenstar, a division of this court held that a written fee
agreement need not accompany a motion for attorney fees when the
moving party’s attorneys worked as in-house counsel. Id. at ¶ 65.
The division reasoned that “[b]ecause [the attorneys] were salaried,
[the moving party] was not required to submit a fee agreement
under C.R.C.P. 121, section 1-22(2)(b).” Id. But, contrary to
Nesbitt’s suggestion, the division in Ravenstar did not hold that
section 1-22(2)(b) always requires a written fee agreement, except
when the moving party’s attorneys are salaried. The division in
Ravenstar did not address the issue, raised in Nesbitt’s appeal, of
whether 1-22(2)(b) requires a written fee agreement or some other
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materials evidencing the fee agreement to accompany a motion for
attorney fees and costs.
C. Analysis
¶ 30 Because C.R.C.P. 121, section 1-22(2)(b) does not require a
written fee agreement or other materials evidencing the fee
agreement to accompany a motion for attorney fees and costs, we
conclude that the trial court did not abuse its discretion by
awarding attorney fees and costs to the Scotts. See Crandall, 238
P.3d at 661. At the hearing, the Scotts asserted, and the trial court
found, that the written fee agreement had been lost. So, the Scotts
did not have to attach a written fee agreement to their motion for
attorney fees and costs. See C.R.C.P. 121, § 1-22(2)(b).
¶ 31 Alternatively, Nesbitt contends that the Scotts had to produce
a written fee agreement after Nesbitt objected to the lack of a
written fee agreement in the 2015 evidentiary hearings. But Nesbitt
has pointed to no authority, and we are not aware of any, that
imposes this duty on the Scotts. And C.R.C.P. 121, section 1-
22(2)(b) does not require a written fee agreement.
¶ 32 Nesbitt also contends, for the first time on appeal, that the
trial court’s award was unreasonable and unfair because Rodney
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Scott did not produce “records of payment and/or copies of
cancelled checks in his possession.” Because Nesbitt did not raise
this issue before the trial court, we decline to address it. People v.
Salazar, 964 P.2d 502, 507 (Colo. 1998) (“It is axiomatic that issues
not raised in or decided by a lower court will not be addressed for
the first time on appeal.”).
V. Summary Judgment
¶ 33 We next consider whether, as Nesbitt contends, the trial court
“abused its discretion in awarding attorney fees associated with the
Scotts’ 2012 motion for summary judgment which was later
reversed on appeal.” We conclude that it did not.
¶ 34 The trial court granted the 2012 motion for summary
judgment on the theory of issue preclusion, forgoing the originally
planned possession hearing. But a division of this court held that
summary judgment was improper and remanded for a possession
hearing.
¶ 35 Nesbitt contends that the 2012 motion for summary judgment
caused both parties to prepare twice for the immediate possession
hearing and therefore unnecessarily increased attorney fees and
costs. Nesbitt also contends that the 2012 motion for summary
14
judgment was “ill-conceived” because it reiterated arguments the
Scotts had made in a previously denied motion to dismiss. We
disagree with these contentions.
¶ 36 In assessing attorney fees and costs, the trial court did not
find the Scotts’ 2012 motion for summary judgment to be
groundless, frivolous, untimely, or in bad faith. And, the Scotts
were ultimately successful on the merits.
¶ 37 So, we cannot say the trial court abused its discretion in
awarding attorney fees and costs associated with the 2012 motion
for summary judgment. See Payan, ¶ 16.
VI. Conclusion
¶ 38 The trial court’s award of attorney fees and costs is affirmed.
JUDGE WEBB and JUDGE BROWN concur.
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