COLORADO COURT OF APPEALS 2017COA113
Court of Appeals No. 16CA1473 Las Animas County District Court No. 13CV30013 Honorable Ronald G. Crowder, Judge
Francisco “Frank” Ruybalid IV,
Plaintiff-Appellant,
v.
Board of County Commissioners of the County of Las Animas County, Colorado; Anthony Abeyta, member of the Las Animas Board of County Commissioners; Gary D. Hill, member of the Las Animas Board of County Commissioners; Mack Louden, member of the Las Animas Board of County Commissioners; Board of County Commissioners of the County of Huerfano County, Colorado; Gerald Cisneros, member of the Huerfano Board of County Commissioners; Ray Garcia, member of the Huerfano Board of County Commissioners; and Max Vezanni, member of the Huerfano Board of County Commissioners,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE DUNN Hawthorne and Navarro, JJ., concur
Announced August 24, 2017
Kamm & McConnell, L.L.C., Steven L. McConnell, Raton, New Mexico, for Plaintiff-Appellant
Newnam Land LLP, Mary D. Newnam, Wimberley, Texas, for Defendants- Appellees Board of County Commissioners of the County of Las Animas County, Anthony Abeyta, Gary D. Hill, and Mack Louden Garrett Sheldon, Walsenburg, Colorado, for Defendants-Appellees Board of County Commissioners of the County of Huerfano County, Gerald Cisneros, Ray Garcia, and Max Vezanni ¶1 Francisco “Frank” Ruybalid IV admitted to serial violations of
the Colorado Rules of Professional Conduct during his tenure as
District Attorney for the Third Judicial District, located in Las
Animas and Huerfano Counties. Believing that the Counties should
be on the hook for the fees and costs he incurred to defend himself
in the disciplinary proceeding, he sued them.1 Seeing no legal
claim, the district court dismissed the complaint. Urging us to
undo that ruling, Mr. Ruybalid professes to have statutory and
equitable rights to attorney fees and costs. Because he doesn’t, we
affirm.
I. Background
¶2 In 2000, the citizens of the Third Judicial District elected
Mr. Ruybalid District Attorney. During his term, the Office of
Attorney Regulation Counsel filed disciplinary charges against him.
¶3 After the Counties refused to assume Mr. Ruybalid’s defense,
he hired counsel to represent him in the disciplinary action.
Mr. Ruybalid eventually entered into a stipulation, admitting to a
pattern of discovery violations and several instances of failing to
1Mr. Ruybalid named as defendants the respective Boards of County Commissioners, along with each individual commissioner.
1 supervise and train his subordinates. He acknowledged that his
discovery violations — and those of his subordinates — resulted in
sanctions and suppression of key evidence in over a dozen criminal
cases. He also agreed that, as a direct result of these violations, the
prosecution dismissed the majority of those cases. And he
stipulated that he “did not diligently represent the People” and
“engaged in conduct prejudicial to the administration of justice” in
violation of the Colorado Rules of Professional Conduct.
¶4 The Presiding Disciplinary Judge approved the “conditional
admission of misconduct and suspended [Mr. Ruybalid] for six
months, all stayed upon the successful completion of a twenty-
three-month” probation period. People v. Ruybalid, Nos.13PDJ065,
14PDJ064, 2010 WL 11020220, at *1 (Colo. O.P.D.J. Jan. 28,
2010).
¶5 After resolving the disciplinary action, Mr. Ruybalid filed a
complaint for declaratory relief against the Counties, seeking
reimbursement for his attorney fees and other costs incurred in the
disciplinary proceeding. He specifically asked the court to declare
that “the [C]ounties were required to indemnify and defend [him]
against the claims asserted in the [d]isciplinary [a]ction” and that
2 he “is allowed to collect . . . all of his reasonable and necessary
attorney[] fees, expert witness fees, expenses, practice monitor fees
and costs” incurred in that action.
¶6 The Counties moved to dismiss the complaint for failure to
state a claim, arguing Mr. Ruybalid had no right to attorney fees
and costs. Mr. Ruybalid countered that he had a statutory
entitlement to attorney fees and costs and, in addition, he had
stated an equitable claim for such fees and costs. The district court
concluded that Mr. Ruybalid had stated neither a statutory nor an
equitable claim for attorney fees and costs, and it dismissed the
complaint.
II. Section 20-1-303
¶7 Mr. Ruybalid’s primary contention is that he is statutorily
entitled to attorney fees and costs under section 20-1-303, C.R.S.
2016, and the district court erred in concluding otherwise. The
issue for us then is whether that statute requires the Counties to
reimburse Mr. Ruybalid for such fees and costs. We conclude it
does not.
¶8 That parties generally bear their own costs of litigation absent
a statute, court rule, or private contract permitting those costs to be
3 shifted is well settled. See, e.g., Buckhannon Bd. & Care Home, Inc.
v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602-03
(2001); Bernhard v. Farmers Ins. Exch., 915 P.2d 1285, 1287 (Colo.
1996). And while this so-called American Rule is more often
considered in the context of whether a prevailing party may recover
fees and costs from an opposing party, it reflects the broader and
long-held presumption that parties pay their own legal fees and
costs, “win or lose.” Baker Botts L.L.P. v. ASARCO LLC, 576 U.S.
___, ___, 135 S. Ct. 2158, 2164 (2015) (quoting Hardt v. Reliance
Standard Life Ins. Co., 560 U.S. 242, 253 (2010)); Fogerty v.
Fantasy, Inc., 510 U.S. 517, 533 (1994) (“[I]t is the general rule in
this country that unless Congress provides otherwise, parties are to
bear their own attorney’s fees.”).
¶9 We will not conclude that a statute alters the American Rule
and shifts attorney fees and costs to another absent “explicit
statutory authority.” Buckhannon, 532 U.S. at 602 (quoting Key
Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)); see also
City of Wheat Ridge v. Cerveny, 913 P.2d 1110, 1114 (Colo. 1996)
(Courts do not construe a fee-shifting provision as mandatory
unless its directive is specific and clear.). And such explicit
4 statutory authority tends to plainly “authorize the award of ‘a
reasonable attorney’s fee,’ ‘fees,’ or ‘litigation costs,’ and usually
refer[s] to a ‘prevailing party’ in the context of an adversarial
‘action.’” Baker Botts, 576 U.S. at ___, 135 S. Ct. at 2164 (citing
specific statutory examples). Following this lead, we will not infer
an exception to the general rule that parties pay their own attorney
fees and costs from statutory provisions “that do not explicitly
address attorney fees.” Allstate Ins. Co. v. Huizar, 52 P.3d 816, 821
(Colo. 2002); see also § 13-16-122(1)(h), C.R.S. 2016 (Attorney fees
are recoverable as costs only “when authorized by statute or court
rule.”).
¶ 10 We review de novo whether a statute mandates an award of
attorney fees and costs. Castro v. Lintz, 2014 COA 91, ¶ 11.
¶ 11 Section 20-1-303 states that a district attorney “shall be
allowed to collect and receive from each of the counties in his
district the expenses necessarily incurred in the discharge of his
official duties for the benefit of such county.” This section says
nothing about attorney fees, fees, or litigation costs. See Baker
Botts, 576 U.S. at ___, 135 S. Ct. at 2164. Nor does it reference
litigation, any type of action or proceeding, or prevailing parties.
5 See id. That is, nothing in section 20-1-303 even hints at a
legislative intent to include attorney fees or litigation costs incurred
in a disciplinary proceeding as “expenses necessarily incurred” in
discharging a district attorney’s official duties. Because nothing in
the statute explicitly authorizes awarding Mr. Ruybalid his attorney
fees and costs, we cannot agree that the use of the term “expenses”
— untethered as it is from a legal proceeding or reasonable attorney
fees — creates an exception to the long-established presumption
that parties to a legal proceeding pay their own way.
¶ 12 It is indeed rare for courts to sweep attorney fees into
statutory language that uses phrases other than “attorney fees.”
See, e.g., Leadville Water Co. v. Parkville Water Dist., 164 Colo. 362,
365, 436 P.2d 659, 660 (1967) (declining to interpret “just
compensation” in eminent domain provision of Colorado
Constitution to include attorney fees in absence of statute expressly
so providing); In re Marriage of Wright, 841 P.2d 358, 361 (Colo.
App. 1992) ( “[T]he term ‘costs’ normally does not include attorney
fees.”); Lanes v. O’Brien, 746 P.2d 1366, 1374 (Colo. App. 1987)
(Attorney fees were not authorized in statute allowing for
reimbursement “for ‘any costs’ incurred” in an administrative
6 proceeding; the legislature later specifically added “attorney fees” to
the language of the statute at issue, Ch. 251, sec. 1 § 24-50.5-
104(2), 1997 Colo. Sess. Laws 1418.); see also State ex rel. Bryant v.
McLeod, 888 S.W.2d 639, 642 (Ark. 1994) (“The terms ‘costs’ or
‘expenses’ when used in a statute do not ordinarily include
attorneys’ fees.”); Merlino v. Delaware Cty., 728 A.2d 949, 951 (Pa.
1999) (Use of the word “expense” in a statute was “insufficient to
constitute a basis for the award of attorneys’ fees.”).
¶ 13 For these reasons, we cannot agree with Mr. Ruybalid that the
Counties’ statutory obligation to pay for “expenses necessarily
incurred” in discharging a district attorney’s official duties creates
an exception to the American Rule.
¶ 14 Consider also that had the General Assembly intended to
permit district attorneys to recover attorney fees and costs incurred
in a legal proceeding, disciplinary or otherwise, it would have said
so. After all, it has plainly provided that public officials may recover
reasonable attorney fees and costs incurred in defending against
certain tort claims. § 24-10-110(1.5), C.R.S. 2016. And it has
explicitly and plainly authorized the recovery of attorney fees in
various other statutes. See § 5-6-114(3), C.R.S. 2016 (allowing
7 Consumer Credit Code administrator to seek reimbursement of
attorney fees when the administrator is the prevailing party); § 13-
17-102(2), C.R.S. 2016 (authorizing attorney fees against a party
when a showing is made that the party brought or defended a civil
action that “lacked substantial justification” in whole or in part); §
13-17-201, C.R.S. 2016 (mandating award of attorney fees when a
trial court dismisses a tort action under C.R.C.P. 12); § 18-4-405,
C.R.S. 2016 (allowing awards of attorney fees in civil theft actions);
§ 24-4-106(8), C.R.S. 2016 (requiring attorney fees awards for
frivolous proceedings that contest a rulemaking agency’s
jurisdiction or authority). These statutes share a clear intent to
deviate from the American Rule — an intent that is not expressed
in, or even suggested by, section 20-1-303.
¶ 15 All that said, we are left to address Colorado Counties Casualty
& Property Pool v. Board of County Commissioners, 51 P.3d 1100
(Colo. App. 2002). That case seems to interpret section 20-1-303,
and both sides point to language in the opinion that they argue
supports their respective positions.
¶ 16 In Colorado Counties, a former employee sued a district
attorney for wrongful termination. Id. at 1101. Three of the four
8 counties in which the judicial district sat paid the district attorney’s
defense fees and costs. Id. The counties that paid then sought
reimbursement from the county that did not (Prowers County)
under section 20-1-303 and perhaps the Colorado Governmental
Immunity Act (CGIA), § 24-10-110(1.5).2 Colorado Counties, 51
P.3d at 1101. The trial court entered judgment against Prowers
County and ordered that it indemnify the other counties for its
share of defense costs and settlement expenses. Id. at 1101-02.
On appeal, a division of this court concluded that the attorney fees
and costs were necessarily incurred because it “is foreseeable that
the district attorney would have employees and, consequently, that
such employees might sue for wrongful termination.” Id. at 1102.
¶ 17 To the extent Colorado Counties can be read to authorize
payment of attorney fees and costs under section 20-1-303, for
three reasons, we don’t agree. See City of Steamboat Springs v.
Johnson, 252 P.3d 1142, 1147 (Colo. App. 2010) (“We are not
bound to follow a prior division’s ruling.”). First, it is not apparent
2The opinion shifts between discussing the CGIA, § 24-10-110(1.5), C.R.S. 2016, and section 20-1-303, C.R.S. 2016, but it does not specifically identify what claims the counties asserted in their complaint.
9 (and the opinion does not say) how the counties had standing to
assert a claim under section 20-1-303.3 See § 20-1-303 (referring
solely to the district attorney’s ability to collect and receive certain
expenses). So whether the trial court or this court had jurisdiction
to consider the counties’ claim is questionable. Second, Colorado
Counties addressed neither the American Rule nor the lack of any
explicit language in section 20-1-303 authorizing attorney fees.
Third, with no explanation or analysis, Colorado Counties fused the
standard for obtaining attorney fees under the CGIA (which
expressly allows for attorney fees) into section 20-1-303 (which says
nothing about attorney fees). We see no analytical basis to import
the CGIA into section 20-1-303 and are left unconvinced that the
General Assembly so intended. Because we do not agree with
Colorado Counties, we need not determine whether it helps or hurts
Mr. Ruybalid.
¶ 18 Perhaps anticipating problems with the statutory language,
Mr. Ruybalid pursues a second path, arguing that he should be
reimbursed for attorney fees and costs incurred in defending a
3Nothing in the opinion suggests that the counties brought a derivative claim.
10 disciplinary proceeding as a matter of public policy. He argues that
without reimbursement, “the office of the District Attorney cannot
be maintained nor exist.” This is so, he continues, because it is
foreseeable that prosecutors will be grieved, and without
reimbursement, qualified candidates will be deterred from serving
the public for fear of being required to either consent to discipline or
“face personal financial ruin.” The Counties retort that it is not in
the public’s interest to force taxpayers to pay the attorney fees of an
admitted ethics violator. Whatever the merits of these competing
arguments, matters of public policy are better addressed by the
General Assembly, not us. See Samuel J. Stoorman & Assocs., P.C.
v. Dixon, 2017 CO 42, ¶ 11; Huizar, 52 P.3d at 821. Should the
General Assembly conclude that policy considerations favor
requiring counties to reimburse district attorneys for defending
disciplinary charges, and, if so, under what conditions, it will so
legislate. Stoorman, ¶ 11 (“The General Assembly sets public policy,
and express statutory language is the main vehicle it uses.”).4
4 For instance, the General Assembly could condition reimbursement on whether a district attorney successfully defends against the disciplinary charges or on whether the disciplinary charges are without factual or legal basis.
11 ¶ 19 Finally, each party invites us to consider selected out-of-state
opinions for guidance. But these cases are based either on that
state’s common law, see Lomelo v. City of Sunrise, 423 So. 2d 974,
976 (Fla. Dist. Ct. App. 1982), or on dissimilar statutes, see Spatola
v. Town of New Milford, 44 Conn. L. Rptr. 242, 2007 WL 3038100,
at *1 n.1 (Conn. Super. Ct. Sept. 26, 2007) (unpublished opinion);
Triplett v. Town of Oxford, 791 N.E.2d 310, 313 (Mass. 2003);
Sanders v. State, 207 P.3d 1245, 1247 (Wash. 2009). Out-of-state
authority is therefore unhelpful here.
¶ 20 Leaving aside the fact that the statute doesn’t exempt
Mr. Ruybalid from bearing his own attorney fees and costs, we also
observe that he failed to allege any facts that the expenses incurred
in defending the disciplinary proceeding were “for the benefit of” the
Counties. § 20-1-303. While we accept all factual allegations in the
complaint as true, we do not do the same with conclusory
allegations or legal conclusions. Warne v. Hall, 2016 CO 50, ¶ 9;
Fry v. Lee, 2013 COA 100, ¶ 17. This means that, to survive a
motion to dismiss, a complaint must allege more than conclusions.
Warne, ¶ 9; see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)
(Mere legal conclusions cannot survive a motion to dismiss.).
12 ¶ 21 The complaint here did not. It simply parroted the statutory
language, alleging in a conclusory fashion that the expenses
Mr. Ruybalid incurred in the disciplinary proceeding were “for the
benefit of” the Counties. Simply asserting a legal conclusion —
bereft of any supporting factual allegations — does not state a
plausible claim for relief. Warne, ¶ 9.
¶ 22 In sum, we agree with the district court that Mr. Ruybalid
failed to state a claim that the Counties were required to reimburse
him for the attorney fees and costs incurred to defend his
disciplinary proceeding under section 20-1-303.
III. Promissory Estoppel
¶ 23 Mr. Ruybalid’s contention that the district court erroneously
dismissed his promissory estoppel claim fares no better.
¶ 24 Promissory estoppel provides relief to those without an
enforceable contract who were harmed because they relied on
another’s promise. G & A Land, LLC v. City of Brighton, 233 P.3d
701, 703 (Colo. App. 2010). To assert a claim for promissory
estoppel, a plaintiff must allege facts showing a promise by the
defendant, action or forbearance by the plaintiff induced by the
13 promise, and injustice that can be avoided only by enforcing the
promise. Id.
¶ 25 Mr. Ruybalid, however, did not allege facts showing that the
Counties promised him anything. More to the point, he did not
allege the Counties promised to reimburse him for attorney fees and
costs incurred in defending a disciplinary proceeding. Rather than
alleging that the Counties directly promised to reimburse
Mr. Ruybalid, the promissory estoppel claim appears to be based on
three statutes.5 But Mr. Ruybalid points to no authority — nor are
we aware of any — that allows a plaintiff to maintain a promissory
estoppel claim against a local government based on a statute
enacted by the state legislature. And even if it is conceivable to do
so, the Counties did not draft or enact the statutes. See Denver
Milk Producers v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen
& Helpers’ Union, 116 Colo. 389, 414, 183 P.2d 529, 541 (1947)
5 Specifically, the complaint identified section 20-1-302, C.R.S. 2016 (requiring counties, in proportion to their populations, to provide “necessary expenses of maintaining an office for the transaction of official business”); section 20-1-303 (requiring a county to pay “expenses necessarily incurred in the discharge of . . . official duties for the benefit of such county”); and section 24-10- 110 (authorizing indemnification of public officials for defending certain tort claims).
14 (“[T]he legislature has plenary power to legislate . . . .”). So the
identified statutes do not reflect any “promise” by the Counties.
¶ 26 That is not to say a plaintiff may not maintain a promissory
estoppel claim against a board of county commissioners. See Bd. of
Cty. Comm’rs v. DeLozier, 917 P.2d 714 (Colo. 1996). But such a
claim must be based upon a clear and unambiguous promise the
board made to the plaintiff. Id. (allowing promissory estoppel claim
against a board where the plaintiff alleged the board breached its
employment promise to her).
¶ 27 Given the allegations in the complaint, we agree with the
district court that Mr. Ruybalid did not allege facts showing the
Counties unambiguously promised to reimburse him for attorney
fees and costs he incurred in defending the disciplinary proceeding.
The district court therefore correctly concluded that Mr. Ruybalid
failed to state a promissory estoppel claim.
IV. Other Challenges to the Court’s Dismissal
¶ 28 Mr. Ruybalid also contends that the district court erred by
(1) making factual findings that the disciplinary action did not
benefit the Counties; (2) stating that, to be entitled to
indemnification under section 20-1-303, Mr. Ruybalid “needed to
15 have stated a plausible claim” under the CGIA; and (3) determining
Mr. Ruybalid was required to successfully defend the disciplinary
proceeding before the Counties were obligated to pay. We need not
delve into these specific contentions, however, because they all
assume that Mr. Ruybalid is entitled to attorney fees under section
20-1-303. Because he is not, even if he is correct that the court
erred in any of these respects, it does not alter the fact that
Mr. Ruybalid is not entitled to reimbursement of his attorney fees
and costs.
V. Conclusion
¶ 29 The judgment is affirmed.
JUDGE HAWTHORNE and JUDGE NAVARRO concur.