Anderson v. Pursell
244 P.3d 1188
Colo.2011Background
- Eureka Ditch water right involves Anderson (50%), Sebesta and Hashimi (20% each), Pursell (10%); storage rights exist only for Anderson.
- On Sept. 12, 2000, Water Agreement granted Sebesta right to divert but require half of water remain in ditch to supply Anderson.
- Disputes over Water Agreement's interpretation led to injunction in 2003 directing by-passing ponds to deliver Anderson’s 50% share.
- Final Decree (Feb. 10, 2005) incorporated the Water Agreement but limited Anderson’s rights to the main channel and imposed transit losses; Sebesta and Pursell were not required to bypass ponds.
- Pursell and Sebesta sought costs and attorney fees at various stages; water court awarded some fees, and later (April 3, 2009) granted Pursell and Sebesta additional costs/fees for Motion to Enforce and related matters.
- Anderson appeals the April 3, 2009 order seeking to overturn/limit those fee awards; this Court affirms in part, reverses in part, and remands for judgment consistent with its opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prevailing party under Water Agreement | Pursell not prevailing; lack of substantial connection to Water Agreement | Pursell prevailed on main issue of by-passing ponds; satisfies prevailing party standard | Pursell prevailing party; entitled to costs/fees under Water Agreement |
| Timeliness and discretion for fee awards | Motion for costs/fees untimely; water court erred | Court properly exercised discretion; extension rule allowed | No abuse of discretion; late motion allowed; costs/fees proper for Final Decree |
| Award of fees under 13-17-102(4) for Motion to Enforce | Motion to Enforce frivolous; fee shift improper given post hoc findings | Motion frivolous because injunction superseded by Final Decree; fees justified | Motion to Enforce fees upheld for Sebesta/Pursell; substantial justification lacking |
| Amount of fees and calculation | Rate/hours not properly justified; Denver rates inappropriate | Rate determined by comparable Denver counsel; hours reasonable | Fees properly calculated; Denver rate accepted; no error in amount |
| Fees for abandoned appeal and fee-issue defense | Fees for abandoned appeal not recoverable | Case law supports recovery of fees for defending underlying fee award | Sebesta/Pursell not entitled to fees for abandoned appeal or fee-issue defense |
Key Cases Cited
- City & Cnty. of Denver v. Gonzales, 17 P.3d 137 (Colo. 2001) (interpreting 'arising out of' in fee-shifting context)
- Bedard v. Martin, 100 P.3d 584 (Colo.App. 2004) (fee-shifting construction in contracts)
- Archer v. Farmer Bros., 90 P.3d 228 (Colo. 2004) (prevailing party analysis in fee awards; resources focus)
- In re Water Rights of Bd. of Cnty. Comm'rs of Cnty. of Arapahoe, 891 P.2d 981 (Colo. 1995) (standard for determining prevailing party in water rights)
- Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994) (factors for calculating reasonable attorney fees)
- Ireland v. Wynkoop, 36 Colo. App. 205, 539 P.2d 1349 (Colo. App. 1975) (injunction effects when final judgment issued)
- Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983) (reasonable community for attorney rate; Denver as community)
- USI Props. E., Inc. v. Simpson, 938 P.2d 168 (Colo. 1997) (stipulation effect on injunction)