Rita A. Nesbitt, as trustee of the Rita A. Nesbitt Trust v. Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott
No. 18CA0990
COLORADO COURT OF APPEALS
October 10, 2019
2019COA154
Pueblo County District Court No. 11CV490 Honorable Jill S. Mattoon, Judge
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
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
¶ 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.
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” 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 easement.” Nesbitt v. Scott, slip op. at 10 (Colo. App. No. 12CA2211, Aug. 22, 2013) (not published pursuant to
¶ 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
¶ 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
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
¶ 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, ”
- 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
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 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
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 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.
¶ 21
¶ 22 The procedure governing a request for attorney fees is found in
¶ 23 Nesbitt urges us to interpret
¶ 24
¶ 25 And, while
¶ 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
¶ 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
¶ 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,
¶ 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. Analysis
¶ 30 Because
¶ 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
¶ 32 Nesbitt also contends, for the first time on appeal, that the trial court‘s award was unreasonable and unfair because Rodney 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 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.
¶ 38 The trial court‘s award of attorney fees and costs is affirmed.
JUDGE WEBB and JUDGE BROWN concur.