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Sinclair Transp. Co. v. Sandberg

Court of Appeals of Colorado, Second Division

June 5, 2014

Sinclair Transportation Company, d/b/a Sinclair Pipeline Company, a Wyoming corporation, Petitioner-Appellee,
v.
Lauren Sandberg, Kay F. Sandberg, Ivar E. Larson, and Donna M. Larson, Respondents-Appellants

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[Copyrighted Material Omitted]

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Weld County District Court Nos. 07CV290 & 07CV292. Honorable Daniel S. Maus, Judge.

Faegre Baker Daniels, LLP, John R. Sperber, Brandee L. Caswell, Sarah M. Kellner, Denver, Colorado, for Petitioner-Appellee.

Dean & Reid, LLC, Daniel W. Dean, Fort Collins, Colorado; Polsinelli, Bennett L. Cohen, Denver, Colorado, for Respondents-Appellants.

Opinion by JUDGE DAILEY. Casebolt and Berger, JJ., concur.

OPINION

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DAILEY, JUDGE.

[¶1] In this condemnation action, respondents, Lauren Sandberg, Kay F. Sandberg, Ivar E. Larson, and Donna M. Larson (collectively, the landowners), appeal various district court orders, including its denial of interest on attorney fees and costs, its transfer of a surface damage bond to another case, and its dismissal of the action on the request of petitioner, Sinclair Transportation Company d/b/a Sinclair Pipeline Company (Sinclair). We affirm.

I. Background

[¶2] Sinclair owns a pipeline system that transports petroleum products from Wyoming to Denver. To operate this system, Sinclair uses an easement that passes through the landowners' properties. Sinclair initiated the present condemnation proceeding to secure the rights to (1) lay a second pipeline on the landowners' properties and (2) use some of their property which, though underlying the original pipeline, turned out not to be within the easement. The district court determined that Sinclair had condemnation authority to build the new pipeline and entered an order allowing Sinclair to take immediate possession of the properties to install it while continuing to use the original pipeline. In 2007, Sinclair installed the new pipeline but did not put it into use.

[¶3] Five years later, the supreme court concluded that Sinclair did not have statutory condemnation authority under section 38-5-105, C.R.S. 2013. See Larson v. Sinclair Transp. Co., 2012 CO 36, ¶ 1, 284 P.3d 42, 43. On remand, the landowners sought $192,573.95 in attorney fees and costs, as well as interest on those fees and costs. Before the court ruled on this motion, Sinclair voluntarily paid all of the requested fees and costs. Upon Sinclair's objection, however, the district court determined that the landowners were not entitled to recover interest on their attorney fees and costs.

[¶4] Sinclair filed a notice of abandonment of condemnation proceedings, as well as a separate declaratory judgment action. In the declaratory judgment action, Sinclair sought both (1) to enjoin the landowners from removing the new pipeline and (2) recognition

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of its rights under the easement to operate the new pipeline in lieu of the old one.

[¶5] The landowners objected to Sinclair's abandonment of the condemnation action and moved to file an amended pleading in that action containing counterclaims, including trespass, breach of contract, and surface damage caused by the installation of the new pipeline. They also sought to consolidate the two actions, to obtain the removal or disabling of the new pipeline, and to obtain summary judgment on surface damages caused by the installation of the new pipeline.

[¶6] The district court denied the landowners' motions and dismissed the condemnation action, informing the parties that they could raise -- and the court (acting through the same judge) would consider -- any remaining claims or counterclaims in the declaratory judgment action. The landowners complied with this instruction and filed identical counterclaims.

II. Interest on Attorney Fees

[¶7] The landowners contend that the district court erred in denying them an award of interest on their attorney fees and costs. We disagree.

[¶8] The landowners requested attorney fees and costs under section 38-1-122, C.R.S. 2013, which directs a district court to award fees and costs to a property owner if " [it] finds that a petitioner is not authorized by law to acquire real property or interests therein sought in a condemnation proceeding." Without waiting for an order from the district court, Sinclair paid the $192,573.95 in fees and costs that had been requested by the landowners. The payment was accepted by the landowners.

[¶9] The landowners had also requested an award of interest on those fees and costs. The district court determined, however, that they were not entitled to such an award.

[¶10] " The right to interest, absent an agreement to pay it, is purely statutory, and is limited to those circumstances set forth in the statute." Bd. of Cnty. Comm'rs v. Shell W. E & P, Inc., 12 P.3d ...


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