BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, State of Colorado, Petitioner, v. Fay AUSLAENDER and Bennett A. Auslaender, and Donald E. Couch, as Treasurer of Jefferson County, Respondents.
No. 85SC394.
Supreme Court of Colorado, En Banc.
Nov. 2, 1987.
As Modified on Denial of Rehearing Nov. 30, 1987.
747 P.2d 999
QUINN, Chief Justice.
Hill & Robbins, David W. Robbins, Ronald L. Wilcox, Denver, for respondents.
QUINN, Chief Justice.
We granted certiorari to review the decision of the court of appeals in Board of County Commissioners v. Auslaender, 710 P.2d 1180 (Colo. App. 1985). In reversing the trial court‘s denial of Fay and Bennett Auslaender‘s motion for an award of
This case arises out of a long history of litigation over the use of a road segment which once was part of U.S. Highway 285, abandoned by the State Highway Commission in 1958. In January 1980 Fay Auslaender, who had acquired property adjacent to the north half of old Highway 285, obtained a quiet title dеcree to the north half of what had been the highway, and in October 1982 Bennett Auslaender, who owned the property adjacent to the south half, obtained a quiet title decree to the south half of old Highway 285. By letter to the county, Bennett Auslaender offered the county a 30-foot wide public easement across the property for $200 and the county‘s assurance that it would not condemn an additional interest in his or Fay Auslaender‘s portion of the old roadway. The letter further asserted that he “has every intention to totally resist any condemnation of his property by Jefferson County.”
In December 1982 the county authorized аn appraisal of the Auslaenders’ properties, and on June 30, 1983, passed a resolution directing the county to “carry on negotiations in good faith to attempt to acquire said parcels without resort to eminent domain.” The county sent letters of purchase offers, dated June 29, 1983, to each of the Auslaenders.1 On July 5, 1983, the county instituted an action in condemnation against the Auslaenders, and on August 18, 1983, passed a resolution attempting to retroactively ratify the filing of that action.
The Auslaenders filed a motion to dismiss on the basis that the county had the duty to engage in good faith negotiations and that its failure to do so deprived the court of jurisdiction over the condemnation action. The district court granted the Auslaenders’ motion to dismiss the condemnation petition on two grounds: (1) since failure to agree upon compensation is a prerequisite to the commencement of a condemnation proceeding, see
Thе Auslaenders then filed a motion for an award of attorney fees pursuant to
As pertinent here,
A party filing a motion for an award of attorney fees bears the burden of proving by a preponderance of evidence its entitlement to such an award. See
Our prior cases hold that a condemning authority must engage in reasonable good faith efforts to negotiate as a jurisdictional prerequisite to the filing of a condemnation action. E.g., City of Thornton v. Farmers Reservoir, 194 Colo. 526, 575 P.2d 382 (1978); Stalford v. Board of County Comm‘rs, 128 Colo. 441, 263 P.2d 436 (1953). However, we have never addressed whether the condemning authority is relieved of such obligations when efforts аt reasonable good faith negotiations would be futile, see State v. Hurliman, 230 Or. 98, 368 P.2d 724, 731 (1962); 6 Nichols’ Eminent Domain § 24.14[1], at 24-242 (3d ed. 1986), and we do not resolve that question here. What is critical to the instant case is that, although the court of appeals acknowledged in its holding that the county‘s defense to the Auslaenders’ motion for an award of attorney fees was that a governmental entity need not negotiate prior to filing a petition in condemnation when to do so would be futile, 710 P.2d at 1182, the district court never considered whether there was a factual basis, or for that matter a basis in law, for the county‘s asserted defense to the Auslaenders’ request for attorney fees. Notwithstanding this deficiency, the court of appeals ordered an award of attorney fees against the county. In so doing, the court of appeals implicitly determined a critical matter never addressed by the district court, namely, that it would not have been futile for the county to have engaged in negotiations with the Auslaenders prior to commencing the condemnation action and that, therefore, the county‘s condemnation action was frivolous.4
It is axiomatic that an appellate court “cannot substitute itself as a finder of fact.” Gebhardt v. Gebhardt, 198 Colo. 28, 30, 595 P.2d 1048, 1050 (1979). It was the prerogative of the district court to determine in the first instance whether the county‘s condemnation action was or was not “without reasonable basis” or “frivolous” because of the county‘s failure to engage in reasonable negotiations with the Auslaenders. The district court, however, failed to provide both the Auslaenders and the county an evidentiary hearing on this factual question. In the absence of an adequately developed record, including findings of fact and conclusions of law on the claim for attorney fees, there is simply no basis in fact or in law to support the court of appeals’ determination that the Auslaenders were entitled tо attorney fees.
The judgment of the court of appeals is reversed and the case is remanded to that court with directions to return the case to the district court for further proceedings on the Auslaenders’ motion for attorney fees in a manner consistent with the views herein expressed.
ERICKSON, J., dissents, and MULLARKEY, J., joins in the dissеnt.
ERICKSON, Justice, dissenting:
I respectfully dissent. A defendant prevailing against a public entity can recover reasonable attorney fees “if the court determines that said action was brought without reasonable basis or is frivolous.”
In this case, attorney‘s fees should be аwarded because the county initiated the condemnation proceeding without negotiating with the owners for acquisition of the property. The county‘s negotiation consisted of no more than the mailing of an offer and the granting of limited time after the mailing for the acceptance of the offer. Nеgotiation by the condemnor is a jurisdictional prerequisite to the commencement of an eminent domain proceeding. City of Thornton v. Farmers Reservoir and Irrigation Co., 194 Colo. 526, 538, 575 P.2d 382, 392 (1978); Interstate Trust Bldg. v. Denver Urban Renewal Auth., 172 Colo. 427, 433, 473 P.2d 978, 981 (1970); Vivian v. Board of Trustees of Colo. School of Mines, 152 Colo. 556, 561, 383 P.2d 801, 804 (1963); Welch v. City and County of Denver, 141 Colо. 587, 593, 349 P.2d 352, 355 (1960); Stalford v. Board of Comm‘rs, 128 Colo. 441, 445-46, 263 P.2d 436, 438-39 (1953); Old Timers Baseball Assoc. v. Housing Auth. of the City and County of Denver, 122 Colo. 597, 601, 224 P.2d 219, 222 (1950); Mulford v. Farmers Reservoir and Irrigation Co., 62 Colo. 167, 171, 161 P. 301, 302 (1916); see
The trial court order includes the following findings:
[T]hat on June 30, 1983 the Board of County Commissioners of Jefferson County adopted resolution No. CC83-509 regarding their intent to acquire property which is the subject of this case. A portion of that resolution states as follows:
BE IT FURTHER RESOLVED that the Department of Public Works shall carry on negotiations in good faith to attempt to acquire said parcels without resort to eminent domain.
The Court also finds that on June 29, 1983 the County Commissioners sent an offer to acquire said property to each of the respondent‘s [sic].
The Court take [sic] judicial notice of the fact that June 29, 1983, was a Wednesday and further that July 2, was a Saturday and July 3, was a Sunday and July 4, was a national holiday.
The Court finds further that this condemnation proceeding was commenced by filing a petition in the Jefferson County District Court on July 5, 1983. Failure to agree upon compensation is a prerequisite to filing of a condemnation proceeding. City of Thornton vs. Farmers Reservoir 575 P.2d 382 (Colo. 1979 [1978]). All that is required to comply with this requirement is a reasonable good faith offer which can be made by letter so long as the property owner is given a reasonable time to respond. Id.
The Court finds that the time between the mailing of the letter on Junе 29, 1983, to the filing of this suit, July 5th, especially considering the three day holiday weekend was not a sufficient time to respond.
Bennett Auslaender submitted an affidavit asserting that he received the county‘s offer in the mail on July 27, 1983. Fay Auslaender, by affidavit, stated that she received the offer on August 15, 1983. I agree with the trial court, the county did not sаtisfy the jurisdictional prerequisite of negotiation before initiating eminent domain proceedings. See Annotation, Sufficiency of Condemnor‘s Negotiations Required as Preliminary to Taking in Eminent Domain, 21 A.L.R. 4th 765, 822-23 (1983) (discussing cases that denied condemnation because condemnor had allowed insufficient time to consider the offer). The court of appeals decision awarding attorney‘s fees to the Auslaenders should be affirmed.
I am authorized to say that Justice MULLARKEY joins in this dissent.
Notes
Costs allowed to defendants who prevail against public entities. The defendant in any civil action brought in any court of this state by a public entity.... if the defendant is not itself a public entity, shall be entitled to recover аgainst a public entity all court costs, all witness fees, and reasonable attorney fees as determined by the court if the court determines that said action was brought without reasonable basis or is frivolous. The provisions of this section shall not apply to traffic offenses, matters brought under the provisions of the “Colorado Children‘s Code“, title 19, C.R.S., or related juvenile matters, or matters involving violations of municipal ordinances.
Both of these tests [i.e., “groundless” and “frivolous” tests] presuppose a certain professionalism on the part of trial counsel. Certainly, if the record reveals that counsel or any party has brought, maintained, or defended an action in bad faith, the rationale for awarding attorney fees is even stronger. Bad faith may include conduct which is arbitrary, vexatious, abusive, or stubbornly litigious. It also may include conduct aimed at unwarranted delay or disrespectful of truth and accuracy. 679 P.2d at 1069.