Colorado § 38-1-122 - Attorney fees.

§ 38-1-122. Attorney fees.

(1) If the court finds that a petitioner is not authorized by law to acquire real property or interests therein sought in a condemnation proceeding, it shall award reasonable attorney fees, in addition to any other costs assessed, to the property owner who participated in the proceedings.

(1.5) In connection with proceedings for the acquisition or condemnation of property in which the award determined by the court exceeds ten thousand dollars, in addition to any compensation awarded to the owner in an eminent domain proceeding, the condemning authority shall reimburse the owner whose property is being acquired or condemned for all of the owner's reasonable attorney fees incurred by the owner where the award by the court in the proceedings equals or exceeds one hundred thirty percent of the last written offer given to the property owner prior to the filing of the condemnation action. The provisions of this subsection (1.5) shall not apply to any condemnation proceeding seeking to acquire rights-of-way under article 4, 5, or 5.5 of this title, article 45 of title 37, C.R.S., or section 7 of article XVI of the Colorado constitution.

(2) Nothing in subsection (1) of this section shall be construed as limiting the ability of a property owner to recover just compensation, including attorney fees, as may otherwise be authorized by law.

Source: L. 85: Entire section added, p. 1195, § 6, effective June 6. L. 2003: (1.5) added, p. 2669, § 2, effective July 1.

Cross references: For the legislative declaration in the 2003 act adding subsection (1.5), see section 1 of chapter 421, Session Laws of Colorado 2003.

ANNOTATION

Purpose of section is to compensate a property owner who is required to incur costs when the condemning authority does not proceed properly. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part, rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).

This section does not apply to a case that is not a condemnation action. Sinclair Transp. Co. v. Sandberg, 2014 COA 76M, 305 P.3d 924.

Denial of attorney fees on appeal was proper where the orders appealed did not address the petitioner's authority to condemn. This section simply authorizes a fee award if the petitioner lacked legal authority to acquire the real property interests sought. Sinclair Transp. Co. v. Sandberg, 2014 COA 75M, 350 P.3d 915.

The legislature intended that challenges to a condemning agency's authority to condemn be addressed by subsection (1), but that challenges to a condemning agency's valuations be addressed by subsection (1.5). Town of Telluride v. San Miguel Valley Corp., 197 P.3d 261 (Colo. App. 2008).

In valuation cases, the legislature intended to limit awards of attorney fees to relatively egregious cases where the condemning agency has not offered fair value to the property owner and also intended that reimbursement for attorney fees be limited to the fees incurred in obtaining a fair valuation. Town of Telluride v. San Miguel Valley Corp., 197 P.3d 261 (Colo. App. 2008).

Landowner is not authorized by law to condemn a right-of-way where he already has a common law way of necessity and, accordingly, the property owner against whom the condemnation proceedings were brought may recover attorney fees. Billington v. Yust, 789 P.2d 196 (Colo. App. 1989).

District court properly awarded city its attorney fees and costs under subsection (1). Private condemnor sought to condemn entire public trail and not the easement across the public trail the court acknowledged it could obtain. Because the prior public use doctrine precluded what the private condemnor sought, its condemnation petition was not "authorized by law" and the district court properly awarded fees and costs to the city. CAW Equities v. City of Greenwood Village, 2018 COA 42M, 425 P.3d 1197.

Subsection (2) permits recovery of attorney fees only if another statute expressly authorizes such recovery. Dept. of Health v. Hecla Mining Co., 781 P.2d 122 (Colo. App. 1989); City of Holyoke v. Schlachter Farms R.L.L.P., 22 P.3d 960 (Colo. App. 2001).

Attorney fees should be allowed where the condemnee proves that an alternate acceptable route is legally available to the condemnor at the time the condemnation action is commenced. West v. Hinksmon, 857 P.2d 483 (Colo. App. 1992).

But where dismissal is reversed on appeal, the award of attorney fees is not appropriate. Freeman v. Rost Family Trust, 973 P.2d 1281 (Colo. App. 1999).

No attorney fees should be allowed where the condemnee establishes the existence of an acceptable alternate route across the condemnee's own property. West v. Hinksmon, 857 P.2d 483 (Colo. App. 1992).

For purposes of awarding attorney fees, the petition for condemnation was amended in such a substantial manner that it was tantamount to the filing of a new condemnation action for a second parcel of land. Thus, the last written offer prior to filing the original condemnation proceeding on the first parcel and the subsequent amended petition as to the second parcel both constitute last written final offers as to the respective parcels. Sch. Dist. No. 12 v. Sec. Life of Denver Ins. Co., 179 P.3d 1 (Colo. App. 2007), rev'd on other grounds, 185 P.3d 781 (Colo. 2008).

When a condemnation petition is amended to reflect both the property described in the original petition and a newly added property, the last written offer for purposes of subsection (1.5) is the offer made to the property owner for both properties prior to the filing of the amended petition. Town of Silverthorne v. Lutz, 2016 COA 17, 370 P.3d 368.

When there are two distinct and separable condemnations that were tried in a single proceeding, this section contemplates the trial court's application of each written offer to the corresponding condemnation scenario. Because the condemnation award in either scenario exceeds 130% of the condemning authority's corresponding final written offer, the owner of the property is entitled to attorney fees. Sch. Dist. No. 12 v. Sec. Life of Denver Ins. Co., 185 P.3d 781 (Colo. 2008).

Absent evidence of a contrary legislative intent, section does not authorize fee awards in situations other than successful defenses in unauthorized condemnation proceedings. As such, fee award in inverse condemnation action would be improper. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part, rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).

This section does not extend to lessees who participate in condemnation proceedings with regard to entitlement to recover reasonable attorney fees and costs when a court rejects a condemnation petition on the ground that the petitioner is not authorized to acquire the subject property. Mulberry Frontage Metro. v. Sunstate Equip., 2023 COA 66, 537 P.3d 391.

Prejudgment interest is separate from the "award by the court". "[A]ward by the court" plainly contemplates only the principal award and not the prejudgment interest on that award. City of Colo. Springs v. Andersen Mahon Enters., 251 P.3d 536 (Colo. App. 2010).

Court rejects contention that section requires an "all or nothing" award of attorney fees and that trial court was therefore precluded from making a partial award of fees and costs. To refuse to award a respondent any fees at all when the trial court has found that the petitioner was not authorized to acquire some of the property interests being sought would thwart the purpose of the statute. Similarly, it would be equally inappropriate to award a respondent all fees incurred in defending the entire action when at least some of petitioner's condemnation claims were in fact authorized by law. Thus, an "all or nothing" approach would lead to unreasonable and absurd results. Wilkinson v. Gaffney, 981 P.2d 1121 (Colo. App. 1999).

Here, record supports trial court's determination that respondents were entitled to an award of only fees incurred in defending against petitioner's unauthorized claim for a utility easement by condemnation. Further, the court's ruling is supported by the record and is consistent with the statutory intent of discouraging the filing of unauthorized condemnation claims. Accordingly, trial court committed no abuse of discretion. Wilkinson v. Gaffney, 981 P.2d 1121 (Colo. App. 1999).

The city's bad faith in one aspect of the litigation does not violate the condemnation statutes and therefore does not mean the city is not authorized by law to acquire the property for purposes of subsection (1). City of Black Hawk v. Ficke, 215 P.3d 1129 (Colo. App. 2008).

Under subsection (1.5), a landowner may recover appellate attorney fees incurred in successfully defending the commission's just compensation award. Reg'l Transp. Dist. v. 750 W. 48th Ave., LLC, 2013 COA 168, 369 P.3d 640, aff'd in part, rev'd in part on other grounds, 2015 CO 57, 357 P.3d 179.

Applied in Platte River Power Auth. v. Nelson, 775 P.2d 82 (Colo. App. 1989); Akin v. Four Corners Encampment, 179 P.3d 139 (Colo. App. 2007).

PART 2

GOVERNMENTAL ENTITIES, INDIVIDUALS, AND CORPORATIONS AUTHORIZED TO EXERCISE THE POWER OF EMINENT DOMAIN