*1 maj. See 13-21-101. section behind purpose the fact Rather, rely on I would
op. at 780. prejudgment collect cannot claimant
that a which he money damages to
interest See, eg., Allstate legally entitled. is not she (Colo. Starke, v. Ins. Co.
1990). legally not en Goodwin Because damages in excess noneconomic
titled to in prejudgment no cap, 18-64-302's section I excess. on that awarded could be
terest that basis. court on uphold
would 12, Adams Coun NO. DISTRICT
SCHOOL Colorado, 12 Five Star
ty, Adams n/k/a quasi-municipal Schools, a Colorado Petitioner/Cross-Respon
corporation,
dent INSUR LIFE DENVER OF
SECURITY corpo COMPANY, a Colorado ANCE change ration, name successor Company, and Accident
Respondent/Cross-Petitioner.
No. 07SC340. Colorado,
Supreme Court
En Banc. 2, 2008.
June 23, 2008.*
Rehearing Denied June * grant the Petition. would Coats Rice, and Justice Hobbs, Justice Justice *2 T82 P.C., Harring,
Grimshaw & Wayne B. Schroeder, Jody Alderman, Harper Carrie S. Bernstein, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent.
Otten, Johnson, Robinson, Rago- Neff & netti, P.C., Waas, Darrell G. James T. John- son, Denver, Colorado, Respon- dent/Cross-Petitioner.
Justice BENDER Opinion delivered the the Court.
I. Introduction granted We certiorari in this eminent do main proceeding, ap review the court of peals' opinion in School District No. 12 v. Co., Denver Insurance Life of (selected permissible change of for official (Colo.App.2007) ruling was a court's nothing it more than form because did the court of publication), already determined: court's confirmation firm what held that change of sub improper was an to condemn if the District wanted *3 thus, acres, case to the and, compensate remanded the it Seeu- all 138 then must stance A Febru- taking for on rity Life first In this partial a retrial.1 trial court for District Petitioner/Cross-Respondent School 2004, 19, damages to ary which resulted in corporation in quasimunicipal No. taking Parcel B on and then for Colorado, known as County, now Adams February 2005. Schools, seeks to con 12 Five Star Adams District will condemn Because the School domain, demn, power of eminent through its acres, to Security Life is not entitled all 138 Respon land owned acres holding, court of damages. part of its As Security Den Life of dent/Cross-Petitioner trial court appeals remanded the case to the three appeal This involves Co. ver Insurance damages to Parcel to determine (1) court's confirma the trial whether issues: the School period between the date for improper was an tion of Parcel A and the took District (2) substance; the court whether change of District date School "interim dam incorrectly awarded holding to the ex- vacate this Parcel We compensation for Life as ages" to to create a that it can be construed tent and property; of its entire the condemnation damages. category of so-called interim (3) attor Security Life is entitled to whether 88-1-122(1.5), (2007), C.R.S. section Under ney fees. if attorney fees is entitled to a landowner way School Due to equals or exceeds 130 award condemnation and condemnation petition its structured given to the of the last written offer percent case petition, to its amendment filing of the condem- prior to the landowner separable condem- and two distinct involves case involves two proceeding. This nation single in a condemna- tried nations that were separable condemnations distinct in which the School proceeding: one tion single proceed- in a condemnation were tried acres 60 of the 188 condemn District would a written District made ing. The School A") 19, 2004, ("Parcel February the date on filing A its purchase Parcel before offer to possession of the 60 School A. acquire in condemnation petition rest resulting in to the thus amending petition in which the in condemnation and another its property; Before well, Dis- would first condemn B as con- and would then purchase both on offer to trict made a written B") ("Parcel remaining 78 acres demn the condem- B. Because Parcel A and Parcel trial. the date of scenario exceeds award either nation correspond- District's percent of the School followed conclude We offer, Security Life is enti- ing final written in the instruc- requirements set forth Se- attorney under the statute. fees tled interrogatories answered the tions and attorney incurred requests fees curity Life accordingly, and in the verdict form tained 88-1-122(1.5) as appeal and states section ruling reflected the trial court's direct the fees. We Hence, legal basis for such we hold that jury's intent. prior to fil- the last written offer following 3. Whether four granted certiorari on the 1. We io one ing condemnation, as par- a petition issues: cel, prior filing an made and a written offer to dam- a landowner is entitled 1. Whether condemnation, as amended petition when all of the ages case condemnation property condemnation portion added to the acquired the land- landowner's a "last constitute in the amended petition, damages at attorney a claim for did not assert applicable owner fee offer" under written (2006). statute, 38-1-122(1.5), C.R.S. trial. section correctly de- damages, Whether the if the amount of 2. Whether any, trial court amended cided value of "after condition" and the verdict, opposed to changing retrying its substance retried without can be its form. A. value of Parcel trial court to determine whether southeast corner of Huron Street ("Parcel A"). Life is entitled to fees incurred on 128th Avenue The other is and, so, appeal to determine the reasonable L-shaped parcel surrounding 78-acre amount of those fees. two sides of directly abutting Avenue, 128th Interstate and Huron reasons, For these we reverse the court of ("Parcel B"). Street appeals' judgment and remand this case to that court to be returned to the trial court with judgment pursuant directions to enter was further instructed that to the trial requires court's order which proceeding involved two see- pay Security narios, one which was certain and in which $9,274,520 for the condemnation of all 188 *4 possession occurred, already and another acres. hypothetical. which was The was re- quired to value each of these scenarios. In Proceedings II. and Facts Below scenario, possession the first oc- Security approximately Life owns trial, curred before the date of contiguous acres of similarly and zoned land District would condemn Parcel A on Febru- immediately Avenue, located south of 128th 19, ary 2004, the date the School District between Huron Street and Interstate 25 in A, possession took of resulting Parcel thus Westminster, January 12, Colorado. On damages to Parcel B. Instruction No. 2 stat- 2004, the School District made a final offer to ed: purchase acres, A, 60 of the 188 Parcel for petitioner The possession has had of Parcel $3,250,000, rejected. Life On 19, 2004, A February since and will ac- 16, 2004, January the School District filed a quire A. Parcel petition in condemnation acquire, through Parcel B is the residue power domain, its of after Parcel A is eminent Parcel A for taken. You must high construction of a school. determine the reason- On Febru- 19, 2004, able market value A ary Pareel as Febru- granted the trial court 19, possession 2004, School District ary of Parcel A. damages, and the any, to if Parcel B. 18, 2004, May On the School District made added). a final purchase offer to (Emphasis both Parcel and B, remaining Parcel hypothetical the second and rejected. On the School District would first condemn Par- 15, 2004, June the School District amended 19, 2004, A February cel on resulting thus petition acquire condemnation to both B, damages to Parcel and would then con- Parcel A and Parcel B for construction of a 7, 2005, February demn Parcel B on the date school, high school, middle sports and stadi- of trial. Instruction No. 2 stated: um. because the School District petitioner The possession does not have yet had not determined if it would condemn B, may Parcel acquire but Parcel B at the property, the entire it did not seek immedi- conclusion of the trial. In the event the possession Rather, ate of Parcel B. petitioner actually decides to take Parcel School District intended to wait until B, you must also determine the reasonable value of B Parcel was determined at trial market value Parcel B as the date deciding before whether to condemn Parcel trial, February this 2005. B. added). (Emphasis trial, At was instructed that Having explained scenarios, proceeding these two In- par- involved two land, cels Parcel A struction No. 2 and Parcel B. Instruc- summarized the task as tion first, No. stated: two-fold: to determine the value of resulting Parcel
The petitioner seeks to 19, 2004, acquire February B approximately on 188 acres.... the date the School petitioner The possession A; seeks proper- of Parcel ty second, parcels. two roughly One is a rect- to determine the B value of Parcel on angular parcel 7, 2005, 6O-acre located on February the date of trial: acquired by the B is not fear, event Parcel partiality or favor without shall [Y¥Jou petitioner. value of market reasonable ascertain compensable amount of A and the residue, which is any, if damages, to deter- form asked The verdict B, February as of Parcel A on the date the value of mine B as of of Parcel market value reasonable A; of Parcel trial, February the date of B; damages to Parcel of the the value jury's determination on the Based B of trial: on date the value of District would value of (2) actually which is value of Parcel The Par- if it to condemn wanted then determine taken, $ cel (3) damages of such value of the to the residue To determine taken, actually jury was instructed if not any, property, after are subtract $ A from possession of Parcel
School District's Dis- B before the School value of Parcel (5) of Parcel The value No. of Parcel A. Instruction triet's *5 2005, actually if taken is $ 11 stated: interrogatories contained answering In by the to be measured Any damages are form, determined in the verdict decrease, market any, in the reasonable if Parcel A on the date School is, residue, value of difference A was possession of Parcel District took market value the reasonable between of damages Par $5,619,240; value of the actually property taken residue before $2,000,000;2 of and the value cel B was val- market and the reasonable acquired is $1,655,280. B the date of trial was Parcel on property actual- the residue ue after of verdict, Security Life Following the acquired. ty taken has been post-trial motion to "con 593 filed C.R.C.P. if to show that firm" the all to condemn intended School meaning of the term explaining the Security Life compensate then it must empha- "residue," 11 also No. Instruction Parcel A on the date for the value of first in- proceeding the condemnation sized that A, possession of took School Instruction No. scenarios. volved two B, damages together with stated: B the date of of Parcel on then for the value any prop- portion of means that "Residue" words, acquire the entire trial. In other belongs which not taken but erty which is have to District would property, Security Life of Denver respondent, the three values Security Life the sum of pay petitioner, ... The Company Insurance form, jury in the verdict by the provided 12, has County District No. School Adams $9,274,520. equals A since possession of disagreed with Seeuri- B. The is Parcel The residue form, B, verdiet interpretation ty Life's acquire Parcel may decide to petitioner per- condemnation law arguing Colorado will be mo residue. there only when damages trial, however, compensation for you mits purposes of this For acquired, and not when property is part of a compensa- the amount are to determine of Thus, acquired. property the entire any, damages, ble (1) below, including: A new post-trial relief analysis agree move for we in the 2. As discussed issues; (2) Judgment part the trial court's conclusion all or of with trial of damages verdict; (3) B was based valuation of notwithstanding Amendment possession Parcel A on the School District's (4) judgment. Mo- findings; Amendment or 19, 2004. may or post-trial relief be combined tions for in the alternative." asserted post-trial re- governs motions for 3. C.R.C.P. states, party may part: pertinent "[A] It lief. argued that the amount B School District cel between the date the School District Security compensation owed to Life for the possession took and the date the Parcel A and Parcel condemnation of both possession School District took of Parcel is the sum of the value of Parcel on the and to determine the value of B possession date the School District took the date the School District took B and the value of Parcel on the of Parcel B. Id. trial, $7,274,520. equals date of then, Presumably, ap- under the court of The trial court the amount ruled peals' interpretation of the condemnation compensation Security owed to Life for the proceeding, compensation the amount of condemnation of the entire is the Security owed to taking Life for the of all 138 provided by sum of the three values acres would be the sum of the value of Parcel form, $9,274,520. in the verdiet The trial A on the date pos- the School District took disregard court reasoned value of A; session of Parcel the value of the result- provided to Parcel B that was ing damages to between the date form, in the verdict would lead to School District took of Parcel absurd result in which the to A and the date the pos- School District Parcel would exeeed the fee value of Parcel B; session of Parcel and the value of Parcel B on the date the pos- order, In another issued on March session of Parcel B. granted the trial court the School District As to whether Life is entitled to Later, possession of Parcel B. the trial court attorney 38-1-122(1.5), fees under section awarded fees to Life under the court of concluded that both of 38-1-122(1.5). section the School District's written offers "consti- appeal, On the court of held that tute last § written final offers under 38-1- *6 ruling confirming jury the trial court's 122(1.5) respective parcels." as to those Id. improper change verdict was of substance such, appeals at 22. As the court of affirmed and, thus, remanded case to portion of the trial ruling court's 12, partial court for a retrial. Sch. Dist. No. Security awarded attorney Life fees incurred appeals 179 at P.3d 4-6. The court of rea- in connection with the determination of the jury soned instructions and verdict A, together value of Parcel with the determi- provide form adequate failed to instruction to nation of damages the value of the jury damages as to the B B. Id. at 28. The appeals remanded by possession caused the School District's the case to the trial court to determine the jury's "damage reflected amount of fees incurred connec- award [which] exceeded the value of Parcel tion with the determination of the value of B." Id. at appeals 4-5. The court of conclud- damages to Parcel B as determined on ed that the instructions and verdict form retrial, and to portion determine whether the confusing they were because failed to in- of the School final purchase District's offer to jury struct damages "that it could award A and Parcel B for that is Security period for [Life] the time be- attributable equal to or ex- 19, February tween 2004 date the School [the percent ceeds 130 of the value of Parcel B as possession of Parcel A] and determined on retrial. Id. 7, 2005 [the date of Id. at trial]." Having granted peti- the School District's tion for certiorari and Life's cross- Accordingly, the court of affirmed certiorari, petition for we now review these by provided jury the value of Parcel A as issues. in the verdict form and reversed both the value of the to Parcel B and the Analysis III. value of Parcel B. Taking Id. at 7. into We ruling review the trial court's account the fact that the School District took 7, 2005, on post-trial Life's 59 on March C.R.C.P. mo court tion for an Buckley remanded the case to the abuse of discretion. State, (Colo. trial court 547, to determine the to Par- Powder Co. v. 70 P.3d 564
787 support competent evidence N.Y. v. sufficient Cross W. Blue App.2002); see Co., P.2d N.Y. Ins. 876 finding. (Colo.1987). Hock v. 834, Bukulmez, 840 P.2d 736 ruling (Colo.1994). Likewise, 1242, the trial court's wheth review To determine we 1259 attorney fees for Security Life's motion logically reached its jury have er the could Ranch, Haystack of discretion. for an abuse verdict, appellate court must review (Colo.2000). 548, Fazzio, P.2d 556 997 v. LLC forms, instructions, jury verdiet if its ac its discretion court abuses A trial Furthermore, appellate the evidence. Id. unreasonable, arbitrary, manifestly tions are jury's reconcile the attempt court must v. Denver Nat'l Bank unfair. Colo. verdict,4if it is at all special a answers to (Colo.1993). 159, Friedman, 166-67 P.2d and the upon the evidence possible, based a view of Id. If there is given. instructions Ruling aWas Trial Court's A. The con answers the case that makes Change of Form Permissible sistent, recon appellate court must then the a may amend A trial court way. Id. in that special verdict cile form but not matters of regarding verdict Harrison substance. matters of regarding Here, and in instructions 47, Nissen, 119 Colo. v.Co. Constr. in the verdict form terrogatories contained (1948). The rationale 888-89 jury to determine asked the per If a trial court is rule is obvious. trial, at a time when B on the date of regarding a to amend mitted A possessed substance, court could then "the matters 2No. ex nearly year. Instruction a a in its a verdict of arbitrarily aside set jury that plained to the contrary finding in a a entirety, make seenarios, one which two proceeding involved itself, judgment and render action for law possession had al in which was certain and Hammond, 76 Colo. it." Bartlett v. upon occurred, hypo another which was ready (1924). change of 230 P. pos In the first thetical. under that affects the change is a substance trial, date of before the occurred session jury, by while made lying determination would condemn corrects is one that change of form the School Dis the date jury without by made error technical A. In the of Parcel trict made underlying determination affecting the seenario, the School hypothetical second Churchill, Colo.App. jury. Weeks *7 Febru Parcel would condemn District (1980). Therefore, 74, if an 75 19, 2004, resulting damages to ary thus inconsistency jury in a verdict demonstrates B B, condemn Parcel would then Parcel the di not understand jury "did trial. Hav date of misled, in rections, ignored certain was scenarios, Instruc explained these two ing structions," any change in the verdict then jury's as two task change of substance tion No. summarized is a by the court made first, Parcel A at 76. How form. Id. to determine change a fold: and not jury can ever, inconsistency in a verdict Parcel B on the damages to resulting if an and the given upon the instructions possession based be resolved took District date the School violating the intent jury and without second, the value A; to determine Parcel change of change is a jury, then such a of trial. Consistent B on the date of Parcel Gore, 96 Colo. (citing Morgan Id. form. requirements set explanations with the (1935)). 510-12, 919-20 44 P.2d interrogatories No. forth Instruction jury form asked in the verdict contained is appellate court Because date the A on the of Parcel for the value findings, jury verdict by the bound A; of Parcel possession School inconsistency where reversed will not be B; and damages to Parcel the value of the by the properly instructed jury has been of trial B on the date of Parcel the value contains where the record court and trial Law Dictio- party other." Black's or the of one gives a "[al verdict A special issue, ed.1999). (7th jury appli- verdict in leaving nary finding for each written opposed judge," to special as verdict. of the law to was a cation case jury in favor which "the finds general verdict in B, damages As to to the value Parcel to determine the damages value of the to jury "[aluy Instruction No. 11 told the byB subtracting Parcel the value of Parcel B finding damages to the residue not shall after the possession School District's of Par- your affect determination of the value of the cel A from the B value of Parcel before the Thus, property actually taken." Instruction possession SchoolDistrict's of Parcel A. prohibited jury adding No. 11 from Thus, to determine that the value of the B damages value of the to Parcel to the value damages to Parcel B due to the School Dis- Moreover, of Parcel B on the date of trial. possession $2,000,000, triect's of Parcel A was interrogatory regarding the value of Par- jury first had to determine the value B specifically cel asked for the value of Par- B before the pos- School District's reasons, Bcel on the date of trial. For these $3,655,280 session of Parcel A was and that jury determined that the value of Parcel the value of Parcel B after the School Dis- B on the date of trial was the value of Parcel possession $1,655,280. triet's of Pareel A was B damaged by as pos- the School District's Viewing the trial ruling court's mathemati- session of Parcel A. cally point. illustrates this For the condem- words, interrogatories other con- A, nation of Parcel the trial court ordered the jury tained the verdict form told the pay $5,619,240 School District for Parcel already possessed A, $2,000,000 plus resulting for the damages A, which resulted in to Parcel B. Because the verdiet form states jury and asked the to value the taken," actually "is Moreover, pro- Instruction No. 11 required District was pay Security Life adding hibited the from the value of the $7,619,240 A, for the condemnation of Parcel damages to B to the value of Parcel B which the possessed School District has since such, on the date of trial. As accu- 2004. For the condemnation of rately appropriately determined that the the trial court ordered the School value of as it existed on the date of pay Life an additional trial was the value of Parcel B damaged because the determined that by the School District's of Parcel A. the value of Parcel as it existed on the date of trial and as damaged by the School Following requirements set forth in District's of Parcel was answering instructions and the in- $1,655,280. Hence, both Parcel A terrogatories form, contained the verdict through and Parcel B power of eminent determined that the value of Parcel domain, the School pay District must Seecuri- A on the date the pos- ty which is the sum of the $5,619,240; session of Parcel A was the value value of separable the two distinct and resulting damages demnations jury. as determined $2,000,000; and the value of Parcel B on the $1,655,280. date of trial was Under either condemnation *8 jury, in its interrogatories answers to the The trial court ruled that the value of form, contained in logically the verdict purpose condemning Parcel for the of ac- Par- cel B damages is the sum of counted for the the value of Parcel B to as due to damaged by possession the School District's the possession School District's of Parcel A of Parcel A damages and the value of the February to scenario, 2004. the first equation This makes the value of possession already occurred, had whole, Parcel B as if it had not been dam- the School District would take Parcel thus aged by the School possession District's and resulting damages in to Parcel and would taking 19, 2004, February of Parcel A on pay Security $7,619,240, which is the easily is by adding determined the value of sum of the value of Parcel A on the date the $1,655,280, B damaged, as to the value took of Parcel A $2,000,000, which and the value of resulting damages equals $3,655,280. Parcel B. In the hypothetical second and logic scenario, The of this calculation by is bolstered the School District would take Par- required Instruction No. jury 19, 2004, which cel and would then trial,. require us forth in Hock principles set In the date of B on the take instructions, jury ver- jury would District to review the the School second forms, attempt Security Life an additional an and the evidence pay dict B it existed on the value of special to a ver- jury's answers reconcile the is, trial-that of the date and the instruc- upon the evidence dict based already oc- had damages that Following B less at 1259. given. 876 P.2d tions District's to the School curred due for the reasons stated principles and these taking of Parcel A. above, jury followed we conclude that blush, appear case facts of this jury At first in the instruc- requirements set forth in Boulder interrogatories facts analogous with the and answered to be tions Price, P.2d R-2 v. Valley accordingly, District form in the verdict tained (Colo.1991), on other rev'd 1092-94 ruling reflected that the trial court's Fail, Community Hospital by grounds Hence, that the trial we hold jury's intent. (Colo.1998), held in which we change of ruling permissible court's was correct attempt appeals' that the court nothing more than con- it did form because change was a jury verdict inconsistent already determined: jury had firm what of form because and not one substance to condemn District wanted that if the School forms were mis and verdict jury instructions compensate Secu- then it must all 188 There, explained leading. we Parcel A on Febru- taking for rity Life first forms, one verdict presented with two was resulted ary at 1098. Because Id. each defendant. for taking B on and then in Valley no jury in Boulder 2005. necessary to it was stating that struction teacher, for the only verdict form mark one the School District Will B. Because alternative, that, only one defendant in the Acres, All 138 Condemn liable, jury had we concluded was Damages Life Is Not Entitled by jury instructions misled been argues that the court District The School grounds, we these forms. Id. On verdict "interim dam- incorrectly awarded at trial Id. case for a new remanded compensation for Security Life as ages" to property. of its entire the condemnation the facts of reveals review Closer parties agree that because Both from the Valley distinguishable are Boulder acres, Security all 188 will condemn Valley, the In Bowilder this case. facts of § damages. 88-L- See Life is not entitled in a changed the court of (2007) ("No 115(2), findings as to dam- C.R.S. damages on a defendant way imposed involving in cases required ... be ages shall though the had indicated even taking property."). the total damages. liable for "$0" defendant Here, imposed the trial court at Id. 1098-94. appeals does not use Although values the sum of two judgment based on damages," it remanded "interim the term jury. In this by the were determined the value to determine to the trial court case the val- changed neither the trial court period be- B for the damages to Parcel in the verdiet form provided ues pos- the date the School tween any interrogatory con- the substance nor the date the School Parcel A and session of Rather, verdiet form. tained Parcel B. We possession of to determine values court used judg- appeals' part of the court vacate *9 presented not question a that was answer to to can be construed that it ment to the extent hypo- regarding the second the to interim dam- category of so-called create of the total amount What is thetical seenario: ages. to by owed the School compensation taking of both Security Life for the Attorney Entitled to Life Is C. the trial question, Parcel B? On 38-1-122(1.5) Fees Under Section the answer was court determined 88-1-122(1.5), a landowner section Under by provided three values sum of the form, $9,274,520. condemna- attorney fees or to in the verdiet is entitled equals Co., (Colo. tion percent award or exceeds 180 vestment 121 P.3d 332-34 given the last written offer to the landowner App.2005). There are no Colorado cases that prior filing to the pro- of the condemnation 38-1-122(L.5) interpret section in situations ceeding: case, such as in the one where a con any compensation addition to
[In awarded demning authority makes a final written of to the owner in an eminent pro- domain filing petition fer before its in condemnation ceeding, condemning authority shall and then petition decides to amend the in reimburse property the owner whose way condemnation in a changes being acquired or condemned for all of the property amount of condemned. owner's reasonable fees incurred Wagner and required Kortum Investment by the owner by where the award interpret court of to identical court in proceedings equals or exceeds language 48-4-506(1)(h)(II)(B),5 from section one thirty percent hundred the last writ- pertains highway to pro given ten property prior owner offer ceedings, apply interpretation and to filing to the the condemmation action. situations in condemning authority which the petition amended its in condemnation. The School District plain contends that the Wagner, Highway Authority E-470 38-1-122(1.5) language of section requires a made a purchase thirty-nine written offer to disregard any court written offer other acres, rejected, which the landowner before than prior the one made filing to the of the filing petition acquire condemnation to petition Thus, in condemnation. property. highway P.3d at 903. The District maintains that the final written offer authority later petition amended its in con in this case is purchase its final offer to acquire only demnation twenty-seven Parcel A for which was made four acres and an easement. Id. Because the days before the peti- School District filed its highway authority did not make a "new last tion in condemnation. The School District written offer" before it petition, amended its argues further purchase offer to the trial court per determined the value acre Parcel A should be modified to reflect its represented by the purchase written offer to petition amendment to the in condemnation thirty-nine acres and then reduced that by offer, prorating by square either by deducting offer acreage by acre, foot square or proportional to a highway authority decided not $7,477,761.81 value of either condemn. at appeal, Id. 904. On the court depending on which unit value is used in the appeals affirmed, finding that the trial calculation. In either the amount of properly court prorated the last written offer compensation by owed the School District because highway authority "did not make Security Life for the condemnation of all 188 a new last written upon offer based acres-$9,274,520, by as confirmed changes in the amount of land." Id. at 905. equal court-would not per- or exceed 180 cent prorated offer, last written Investment, In Kortum High- the E-470 Security Life would not be any entitled to way Authority made a pur- written offer to attorney fees. fee, chase fourteen acres as well as an
In support position, easement to use five and a half School Dis trict rejected. cites two landowners cases: P.3d at 332. E-470 Highway Authority Public Wagner, highway authority petition then filed a (Colo.App.2003), 903-05 condemnation to E-470 the fourteen acres Highway Authority Public v. Kortum In in fee as well as easement to use the five 43-4-506(1)(Lh)(ID(B) 5. Section states in relevant litigation reasonable by costs of the incurred part: by such owner where the award the court proceedings In connection with proceedings equals for the author- such or exceeds one hun- ity's acquisition property or condemnation of thirty percent dred given the last written offer .. in property which the final value of the prior filing to the owner determined the court exceeds ten thousand condemnation action. *10 dollars, the court shall award the owner all of attorney such owner's reasonable fees and the petition amended its high- District Subsequently, the Id. a half acres. and in con- petition its authority amended condemnation. way the entire nineteen acquire to demnation 88-1-122(1.5) the "last defines Section fee, offer and made written acres in a half given to the as the "offer written offer" and a half acres nineteen purchase the to prior filing to the of the property owner amendment, filing the days after three fee action." this case condemnation Given rejected. Id. landowners which the separable condem- two distinct and involves offer, trial the second written Based on single proceed- tried in a nations that were attorney fees. landowner awarded the court 88-1-122(1.5) that section ing, we conclude that the second appeals held The court of Id. trial court's contemplates application final considered a could not be written offer corresponding written offer to each authority highway because written offer scenario, In the first scenario. demnation days filing its amended three after offered it when the condemnation action occurred plain lan- to the petition, in contradiction January on original petition was filed requires final guage of the statute days District's four after the School filing "prior made to the offers to be written $3,250,000 January offer of last written Citing action." Id. of the condemnation A and the 2004. The value of Parcel appeals held that Wagner, B as deter- value prorated highway have trial court should $7,619,240, jury, exceeds 180 by the mined proportion- to a written offer authority's first District's last written of the School percent prop- purchase of the entire al value for the $8,250,000. In second offer dicta, the court of at 884. erty in fee. Id. action occurred when the the condemnation unclear whether that it is appeals commented parcels amended to include both petition was 43-4-506(1)(h)(II)(B) requires either section 15, 2004, following written the last on June offer when the a "new last written permits May parcels on for both offer authority petition amends its condemning compensation amount of owed 2004. The manner as to warrant such a substantial District to Life for by the School essentially taking new that a conclusion of all 188 as confirmed condemnation Id. character is at issue." or different court to be exceeds by the trial In Wagner and Kortum District's last writ- percent of the School distinguishable from this case are vestment $6,564,492. offer of ten because, proceed the condemnation unlike Hence, Security Life is enti- we hold that Invest Wagner or Kortum ings in either attorney section 838-1- fees under tled to ment, involves two distinct this case 122(1.5). requests tried in a that were separable condemnations appeal and states section incurred on fees and the School single proceeding, 38-1-122(1.5) fees. legal basis for such as its filing offer both before made a final written court to determine wheth- We direct acquire Parcel to petition in condemnation its attorney fees Security Life is entitled to er in con amending petition its A and before so, and, if to determine appeal incurred Par acquire both Parcel demnation of those fees. amount the reasonable petition in days before it filed its B. Four cel condemnation IV. Conclusion purchase made a final offer judgment appeals' the court of reverse We $3,250,000. before Almost one month forA be to that court this case and remand petition it amended directions to trial court with to the returned A and Parcel acquire both trial court's judgment pursuant enter purchase final offer to made a $6,564,492. requires the School order which B for A and Parcel both Parcel $9,274,520 for the condem- Security Life pay in Kortum written offer Unlike the second Investment, days three all 188 acres. was made nation of after petition in authority amended its highway dissents, RICE Justice HOBBS Justice condemnation, offer in written the second join in the dissent. COATS month before Justice made almost one this case was *11 (92 (2) HOBBS, dissenting. actually
Justice The value of is taken, $5,619,- was view, respectfully my I dissent. In 240.00. erroneously majority approves a trial court (3) The to the residue of such change jury substance to the verdiet B, taken, property, actually or Parcel if not deprives the School District of $2,000,000.00. are fees, plus without a fair substantial (4) trial on the valuation the entire B is described on Exhibit B property. demned attached hereto. (5) The value of Parcel B on majority's analysis judgment stem $1,655,280.00. actually if taken is
directly from the mischaracterization of case as two condemnation actions. The case inconsistency facially ap- The verdiet's tried, actually upon agreement was of both parent jury because the awarded more mon- parties, as one condemnation action with two ey damaging Parcel B than it did for condemnation scenarios. Under the first condemning B outright. rectify To only District would take verdict, jury's inconsistent the trial court part property; under the second see- amade calculation that the verdict form does nario, the School District would take the not impermissibly together call for. It added property. Ultimately, entire the School Dis- monetary jury amounts the inserted into trict chose to take the entire the second and third blank lines of the ver- school, school, high has built a middle dict form to reach the value of Parcel B if the sports field on it. prop- School District chose to take the entire erty.
I would hold that the trial court abused by changing discretion of an substance specifically the verdict form re- jury resulting inconsistent verdict from a quires jury to state the value of B verdict form and instructions that con- in the third blank line of the verdict form. view, jury. fused and my misled the impermissible The trial court's intervention appropriate remedy is to remand for a new amending completed verdict regarding property. valuation trial the entire highlights form the confusion the in- structions engendered. and verdict form To Impermissibly 1. The Trial Court confusion, something comparable avoid this Amended the Verdict following language should have been The School District and Life both included on the following form agreed to the unusual manner in which the third blank: tried, case as well as to the instruc- (THE AMOUNTOF MONEY TO BE IN- tions and Using verdict form. a stock ver- SERTED INTO BLANK THIS LINE IS they dict form and attempted, instructions THE ACTUAL VALUE DETER YOU unsuccessfully, adapt them to the two MINE FOR PARCEL AS OF FEBRU- (1) taking alternative scenarios: ARY 2005 WITHOUT ANY CONSID- taking it, and not damaging Parcel B but DAMAGES, ERATION OF BECAUSE (2) taking property. the entire The verdict NO DAMAGES WILL HAVE OC- parties form to which agreed irreconcil- IF CURRED THE SCHOOL DISTRICT ably jury by introducing confused the B) TAKES BOTH PARCELS AND concept damaged property of interim based explanation, In the absence such an on the dates of of Parcel A and together instructions with the verdict a concept that does not exist under jury. form confused and Jury misled the Colorado law. stated, Instruction No. 11 School Dis- "[The The verdiet completed form the reads may trict] decide to as follows: there will be no residue" and We, jury, ascertain and assess: "you compen- are to determine the amount of (1) Parcel A is damages, any, described on Exhibit A sable in the attached hereto. event acquired by is not [the School
798 being jury as the value of jury had stated with this error The obvious District]." instruc- B. instruction, the other well as with clarify, light in tions, they not do is the did not making In a calculation scenarios, that no alternative the make, engaged speculation trial court the to also District chooses if the School oceur imper jury's intent and made an the about acquire Parcel jury's to the change in substance missible of different its statement misleading In are instruc verdict. When there B, Jury Instruction A and forms, for Parcels tions, conflicting dates confusing verdict or im- by confusion 2 also added form, No. jury's completed in the verdict answers damaged concept of interim planting the appellate court trial court nor neither a concept that does not exist legal property, a the verdict. attempt to correct should unusual The Price, condemnation law. in Colorado Valley Sch. Dist. R-2 v. See Boulder try agreed to the parties manner 1085, 1093-94, (Colo.1991), rev'd on P.2d 805 form and case-including the verdiet Fail, grounds by Cmty. Hosp. v. 969 other to- agreed and as written instructions (Colo.1998). 667,670 P.2d trial court to alter prompted way implicitly and a verdict substantive the Entire Trial of New Valuation concept in- legal the nonexistent accepted Property Occur Should trial court damaged property. The terim view, appropriate remedy in this my In stated: trial for valuation of the entire case is a new reading of the only logical fair and The it is seminal case on whether property. Our that, as of found is grant partial retrial instructs permissible to 2004, the value taking on clearly appear that "it should us ("A") $5,619,240 property taken was of the entirely distinct issue to be retried is ("B") the remainder O'Dell, 178 Colo. separable." See Bassett v. $2,000,000. Feb- Subsequently, as was (1972) (empha 498 P.2d $2,000,000 ruary after added). possible only partial retrial is sis wished paid, if the School District been all, will retrying part, but not of the issues "B", purchase parcel injustice party. to either in an not result $1,655,280,for a an additional would be Corp. Magness, v. Gerrity & Gas Oil $9,274,520. total (Colo.1997). dispute in this case surrounds Because addition, so In property, an ex- the entire the valuation of examining the verdict form when confounded entire re- partial or amination of whether recog- explicitly that it jury instructions on the appropriate turns valuation trial is concept of interim legal nized the nonexistent at trial and the by parties method used However, parties conceded both damages. retrying value of Parcel only fairness of argument before us and at oral in their briefs appeals. by the court as ordered concept exists in Colorado such that no trial, District and At demnation law. comparable same experts used Life's view, trial court amended my methodology,. disputed but valuation sales it improperly. It did so because jury's verdict adjustments. In addi- valuation each other's jury should have stated recognized that tion, approached the experts party's each third blank line-the figure-on one differently given the various con- valuation Parcel B in the seenario total value of jury. presented to the demnation scenarios property. taking the entire School single original trial was a The jury inserted a rela- because the contiguous and simi- piece of action for one monetary figure as the value tively low Life, owned larly property zoned conjec- B, $1,655,280, the trial court actions. See separate condemnation not two the total jury had broken tured ("The property 2No. Jury Instruction It then figures. two into value of ap- acquire seeks District] the [School jury did not calculation that made a Dis- [School acres.... proximately 138 make, amount adding property seeks to two trict] ROBBINS, Thus, trial,
parcels."). Allan J. Petitioner at the end of the first entitled, chose, District was if it so only to take the entire Parcel A. GOLDBERG, Respondent. A.B. *13 seenarios, Despite the two condemnation No. 07SC223. parties agreed only to conduct one valua- provided tion trial and instructions and Colorado, Supreme Court of arriving form with the intent of at a En Banc. property. fair value for the entire Under June retrial of Parcel as the court of ordered, prohibited the second would be receiving making
from a determination
on all the relevant interrelated valuation evi- regarding property
dence as a whole.
Thus, view, my a retrial on the valuation of property
the entire should occur. Attorney Improperly
3. The Fee Award Concept
Turns on the Invalid Damaged Property
Interim
I majority's attorney also dissent from the By adding
fee decision. in dam-
ages to the School District's majority's erroneously decision in an attorney
results award of fees to Seeu-
rity Life. under the facts of this
case, damages property never oc-
curred because the School District property. Thus,
demned the my entire
view, majority's incorrectly decision in- legal
serts the nonexistent concept of interim into an fee calculation. unique
Under the cireumstances of this single
where a condemnation was tried
agreement parties in two different
scenarios, approve the court should not
attorney fee award. sum, I judgment would reverse the
the court of and order it to return regarding
this case for a new valuation trial
the entire the School District
in this case.
Accordingly, respectfully I dissent.
I am authorized to state that Justice RICE join
and Justice COATS this dissent.