Rita A. Nesbitt, as trustee of the Rita A. Nesbitt Trust, Petitioner-Appellant,
Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott, Respondents-Appellees.
County District Court No. 11CV490 Honorable Jill S. Mattoon,
Fowler, Schimberg, Flanagan & McLetchie, P.C., Steven W.
Fox, Golden, Colorado, for Petitioner-Appellant
& Associates, P.C., R. Parker Semler, Jeremy Goldblatt,
Denver Colorado, for Respondents-Appellees
1 In this appeal of an award of attorney fees and costs, we
consider whether C.R.C.P. 121, section 1-22(2)(b) requires
that a written fee agreement, or some other materials
evidencing the fee agreement, accompany every motion for
attorney fees and costs brought under section 38-1-122(1),
C.R.S. 2019. We conclude that C.R.C.P. 121, section
1-22(2)(b) does not impose such a requirement.
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
3 Ultimately, the trial court awarded the Scotts $400, 431.85
in attorney fees and $35, 066.25 in costs. Nesbitt mounts two
challenges to this award of attorney fees and costs. First,
she contends that the trial court abused its discretion by
awarding attorney fees and costs to the Scotts because
C.R.C.P. 121, section 1-22(2)(b) required that the Scotts
attach a written fee agreement, or some other materials
evidencing the fee agreement, to their motion for attorney
fees and costs, but they did not do so. Second, she contends
that she should not have to pay the award associated with a
summary judgment motion that was ultimately unsuccessful
because the motion "unnecessarily increased the length
of the case." We disagree with each of Nesbitt's
contentions and therefore affirm.
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 C.A.R.
35(f)). Thus, the division reversed and remanded the case for
an evidentiary hearing because the trial court did not make
all the factual findings "necessary to adjudicate
Nesbitt's private condemnation claim." Id.
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 C.A.R. 35(f)).
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 C.R.C.P.
121, section 1-22(2)(b) "without a copy of the
engagement letter or proof as to its terms." But
Nesbitt's appeal of this award was dismissed by
stipulation of the parties after the division ...