v. Scott

2019 COA 154

• Court: Colorado Court of Appeals
• Decided: October 10, 2019
• Docket: 18CA0990, Nesbitt
• Status: Published

Opinion

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.