v. Scott, 2019 COA 154

Nesbitt (trustee) built a roadway across the Scotts’ land after permission was revoked; Scotts sued for trespass and later defended against Nesbitt’s private condemnation petition seeking immediate possession.
The litigation spanned nearly a decade, included multiple appeals and reversals, and culminated in the trial court awarding the Scotts attorney fees and costs under § 38-1-122(1).
The Scotts’ counsel could not produce a written engagement letter; the trial court relied on testimony, billing affidavits, rate communications, and proof of payment to conclude an enforceable fee arrangement existed.
Nesbitt challenged the fee award on two grounds: (1) C.R.C.P. 121 § 1-22(2)(b) requires a written fee agreement (or equivalent documents) to accompany any fee motion, and (2) fees tied to the Scotts’ 2012 summary judgment (later reversed on appeal) were not recoverable because the motion unnecessarily increased litigation.
The trial court denied those challenges and awarded $400,431.85 in attorney fees and $35,066.25 in costs; the Court of Appeals affirmed.

Issue	Nesbitt's Argument	Scotts' Argument	Held
Whether C.R.C.P. 121 § 1-22(2)(b) requires a written fee agreement (or written proof of it) to accompany any fee motion	§ 1-22(2)(b) requires attachment of the written engagement or equivalent written proof; missing writing defeats the motion	The rule requires "any" supporting documentation but does not mandate a particular document; other evidence can suffice	The rule does not impose a categorical written-agreement requirement; other evidence may prove the fee arrangement
Whether fees associated with a summary judgment motion later reversed on appeal are recoverable	Fees for the 2012 summary judgment should not be awarded because it was reversed and allegedly caused duplicative work	The summary judgment was not groundless or frivolous and the Scotts ultimately prevailed; such fees can be awarded	Trial court did not abuse its discretion in awarding fees tied to the 2012 summary judgment

Crandall v. City of Denver, 238 P.3d 659 (Colo. 2010) (attorney-fee award reviewed for abuse of discretion)
Akin v. Four Corners Encampment, 179 P.3d 139 (Colo. App. 2007) (§ 38-1-122 awards include appellate fees)
Hartman v. Freedman, 591 P.2d 1318 (Colo. 1979) (supporting award of appellate fees in condemnation context)
MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710 (Colo. 2010) (rules/statutes interpreted de novo)
City & County of Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d 1270 (Colo. 2010) (give plain language its ordinary meaning)
Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585 (Colo. 2005) (interpretation should give effect to every word)
Crawford v. Melby, 89 P.3d 451 (Colo. App. 2003) (clear procedural rule language obviates further inquiry)
People v. Salazar, 964 P.2d 502 (Colo. 1998) (issues not raised below generally not considered on appeal)