Nesbitt v. Scott

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          Pueblo County District Court No. 11CV490, Honorable Jill S. Mattoon, Judge

          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

         OPINION

         FURMAN, JUDGE

         [¶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 this court.

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         [¶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.

          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 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. at 12.

         [¶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 ...