v. Scott ( 2019 )


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  •      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,
    1
    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”
    2
    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
    3
    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.”
    4
    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
    5
    § 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 7
    106, ¶ 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)).
    8
    ¶ 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
    9
    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.
    10
    ¶ 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
    11
    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
    12
    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
    13
    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.
    15