HomeMy WebLinkAbout2018CV149 - Sutherland V. City Of Fort Collins, Steve Miller & Irene Josey - 038 - Timnath's Motion For Attorneys Fees And CostsDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
ERIC SUTHERLAND, pro se
v.
Defendants:
THE CITY OF FORT COLLINS, a home rule municipality
in the State of Colorado; STEVE MILLER, in his capacity as
the Larimer County Assessor and all successors in this office;
IRENE JOSEY, in her capacity as the Larimer County
Treasurer and all successors to this office; and
Indispensable Parties: THE TIMNATH DEVELOPMENT
AUTHORITY, an Urban Renewal Authority; and
COMPASS MORTGAGE CORPORATION, an Alabama
company doing business in Colorado.
Counsel for The Timnath Development Authority and
Compass Mortgage Corporation:
Eric R. Burris, admitted pro hac vice
BROWNSTEIN HYATT FARBER SCHRECK, LLP
201 Third Street NW, Suite 1800
Albuquerque, NM 87102
Phone: 505.244.0770
Email: eburris@bhfs.com
Cole J. Woodward, #50199
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
Phone: 303.223.1100
Email: cwoodward@bhfs.com
Co-Counsel for The Timnath Development Authority:
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA & WALDRON
2154 E. Commons Ave., Suite 2000
Centennial, CO 80122
Phone: 303.858.1800
Emails: rrogers@wbapc.com; clekahal@wbapc.com
Case Number: 2018CV149
Division: 3C
THE TIMNATH DEVELOPMENT AUTHORITY AND
COMPASS MORTGAGE CORPORATION’S COMBINED
MOTION FOR ATTORNEYS’ FEES AND BILL OF COSTS
DATE FILED: August 1, 2018 4:45 PM
FILING ID: 3336990C3C2F1
CASE NUMBER: 2018CV149
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The Timnath Development Authority (“TDA”) and Compass Mortgage Corporation
(“Compass”), by and through their counsel of record, White Bear Ankele Tanaka & Waldron
Attorneys at Law and Brownstein Hyatt Farber Schreck, LLP, hereby submit the following
Motion for Attorneys’ Fees and Bill of Costs pursuant to C.R.C.P. 121, § 1-22, and C.R.C.P.
54(d).
Certificate of Compliance: In accordance with C.R.C.P. 121, § 1-15(8), Counsel for the
TDA and Compass attempted to confer in good faith with Plaintiff Eric Sutherland (“Mr.
Sutherland”) via telephone at 4:23PM on August 1, 2018. Mr. Sutherland declined to indicate
whether he supports or opposes the relief requested herein after multiple requests. Consequently,
TDA and Compass presume that Mr. Sutherland opposes the relief requested herein.
I. BACKGROUND
1. Mr. Sutherland filed his Unamended Complaint for Declaratory Judgment and
Equitable Relief (the “Complaint”) on April 26, 2018 which alleged that TDA failed to comport
with provisions of Colorado’s Urban Renewal Act (the “URA”) at C.R.S. § 13-25-101 and
sought to enjoin the Larimer County Assessor from disbursing funds to TDA (the “URA
Claims”).
2. The Complaint also included seventeen additional claims against TDA and other
Larimer County government entities and officials (the “Additional Claims”).
3. On June 5, 2018 TDA and Compass filed their Joint Motion to Dismiss and
Request for Expedited Briefing and Hearing (the “Motion to Dismiss”).
4. On July 11, 2018, this Court issued its Order Granting TDA and Compass’ Joint
Motion to Dismiss (the “Order”), finding in favor of TDA and Compass and against Mr.
Sutherland.
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5. With respect to the URA claims, the Court in its Order held that Mr. Sutherland
lacked standing to enforce the URA. Order at 3; Olson v. City of Golden, 53 P.3d 747, 750
(Colo. App. 2002).
6. In its Order, the Court also held that Mr. Sutherland failed to sufficiently allege
an injury-in-fact with respect to the URA claims. Order at 3.
7. In its Order, the Court also found that the Additional Claims were “1)
inapplicable to TDA and [Compass]; 2) are insufficiently pled or 3) both,” and dismissed the
Additional Claims. Order at 4.
II. MOTION FOR ATTORNEYS’ FEES
8. C.R.C.P. 121 § 1-22(2)(b) directs a party seeking an award of attorney fees to
file and serve a motion that explains: (1) the basis upon which fees are sought; (2) the amount
of fees sought; and (3) the method by which those fees were calculated. The rule also directs
the moving party to provide supporting documents, including materials evidencing the
attorney’s time being spent and the reasonableness of the fees being sought. Id.
9. Colorado law requires courts to make an award of attorneys’ fees where:
[A]n attorney or party brought or defended an action, or any part
thereof, that lacked substantial justification or that the action, or
any part thereof, was interposed for delay or harassment or if it
finds that an attorney or party unnecessarily expanded the
proceeding by other improper conduct, including, but not limited
to, abuses of discovery procedures available under the Colorado
rules of civil procedure or a designation by a defending party under
section 13-21-111.5(3) that lacked substantial justification. As
used in this article, “lacked substantial justification” means
substantially frivolous, substantially groundless, or substantially
vexatious.
C.R.S. § 13-17-102(4).
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10. When evaluating a request for attorneys’ fees, Colorado law requires courts to
consider certain factors in determining whether to assess fees and the amount of fees to be
assessed against any offending attorney or party. C.R.S. § 13-17-103. Those factors are:
(a) The extent of any effort made to determine the validity of any
action or claim before said action or claim was asserted;
(b) The extent of any effort made after the commencement of an
action to reduce the number of claims or defenses being asserted or
to dismiss claims or defenses found not to be valid within an
action;
(c) The availability of facts to assist a party in determining the
validity of a claim or defense;
(d) The relative financial positions of the parties involved;
(e) Whether or not the action was prosecuted or defended, in whole
or in part, in bad faith;
(f) Whether or not issues of fact determinative of the validity of a
party's claim or defense were reasonably in conflict;
(g) The extent to which the party prevailed with respect to the
amount of and number of claims in controversy;
(h) The amount and conditions of any offer of judgment or
settlement as related to the amount and conditions of the ultimate
relief granted by the court.
C.R.S. § 13-17-103.
A. Basis Upon Which Fees Sought
11. Here, TDA and Compass are entitled to attorneys’ fees from Mr. Sutherland
because his Complaint lacked substantial justification under the applicable definition of that
term. A claim lacks substantial justification when it is substantially frivolous, substantially,
groundless, or substantially vexatious. C.R.S. § 13-17-102(4).
12. A claim is “frivolous” when the proponent of that claim can present no rational
argument based on the evidence or law in support of that claim. Collins v. Colo. Mountain
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Coll., 56 P.3d 1132, 1136 (Colo. App. 2002)(citing W. United Realty, Inc. v. Isaacs, 679 P.2d
1063 (Colo.1984)).
13. In this instance, Mr. Sutherland’s claims were frivolous. Mr. Sutherland had no
standing to bring this action pursuant to well-established principles of law. See Mot. to Dismiss
at 5-12. The seminal opinion on taxpayer standing to enforce Colorado’s URA was written in
2002, and the law on that issue has not changed substantially since that time. Olson v. City of
Golden, 53 P.3d 747, 750 (Colo. App. 2002). Mr. Sutherland presents no novel theory of
standing in his Complaint that would enable him to state a claim.
14. As the Court noted in its Order, “the URA does not confer the right on taxpayers
to enforce its provisions. Order at 3 (citing Olson, 53 P.3d at 752). Indeed, its by its terms the
URA denies taxpayers standing to enforce its provisions. C.R.S. § 31-25-107(7). It was never
possible for Mr. Sutherland to state facts that would enable him to enforce the provisions of the
URA. Consequently, his Motion was frivolous under Colorado law.
15. The factors enumerated at C.R.S. § 13-17-103 weigh in favor of an award of
attorneys’ fees in this case.
16. It is evident from his pleadings that Mr. Sutherland knew that he lacked standing
to bring his claims under Olson and the URA when he filed his Complaint. Compl., ¶ 33. Thus
Mr. Sutherland knew or should have known that his claims had no basis in law at the time they
were filed.
17. Of the nineteen claims included in Mr. Sutherland’s Complaint, the Court found
that seventeen were insufficiently plead. By Mr. Sutherland’s own admission, these claims
were “insufficiently pled” and “rushed.” Pl’s Am. Mot. for Reconsideration at 3. Mr.
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Sutherland made no effort to reduce the number of claims being asserted or to dismiss claims
that were not valid within this action.
18. The material facts surrounding this action were never in dispute, and were
always available to Mr. Sutherland. All information regarding TDA’s collection of tax
revenues is either public record already, or is available to Mr. Sutherland via Colorado’s Open
Records Act at C.R.S. § 24-72-201 et seq. None of the facts that are determinative to Mr.
Sutherland’s claim for relief can be reasonably disputed by either party.
19. All of Mr. Sutherland’s nineteen claims against TDA and Compass were
dismissed pursuant to the Court’s Order.
20. In light of these facts, an award of attorneys’ fees in favor of TDA and Compass
is appropriate under Colorado law.
B. Amount of Fees Sought
21. TDA and Compass were principally represented in this matter by Brownstein
Hyatt Farber Schreck, LLP (“BHFS”). TDA and Compass seek $75,532 in attorneys’ fees for
work performed by BHFS in responding to Mr. Sutherland’s Complaint and preparing the
Motion to Dismiss. (Ex. 1, Burris Aff., ¶¶ 2, 6.)
C. Method by Which Fees Are Calculated
22. The determination of what constitutes a reasonable award of attorneys’ fees is a
question of fact for the trial court and will not be disturbed on review unless it is patently
erroneous and unsupported by the evidence. Brody v. Hellman, 167 P.3d 192, 198 (Colo. App.
2007). The initial estimate of a reasonable attorney fee is reached by calculating the “lodestar”
amount, which represents the number of hours reasonably expended multiplied by a reasonable
hourly rate. Balkind v. Telluride Mountain Title Co., 8 P.3d 581, 587-88 (Colo. App. 2000).
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That amount may then be adjusted based upon factors including the amount in controversy, the
length of time required to represent the client effectively, the complexity of the case, the value
of the legal services to the client, awards in similar cases, and the degree of success achieved.
Tallitsch v. Child Support Servs., Inc., 926 P.2d 143, 147 (Colo. App. 1996).
23. Undersigned calculated the reasonable attorneys’ fees in this matter using the
lodestar method, i.e., by multiplying the number of hours reasonably expended on the litigation
by a reasonable hourly rate. (Ex. 1, Burris Aff., ¶¶ 7, 8, 11.) The Colorado Court of Appeals
has explained that the lodestar method “carries with it a strong presumption of reasonableness.”
Tallitsch, 926 P.2d at 147.
24. The hourly rates for the BHFS attorneys and paralegals who worked on this
matter are reasonable. (Ex. 1, Burris Aff., ¶¶ 7, 8, 9.) BHFS billed TDA and Compass at its
standard rates, which are as follows: (1) $450 per hour for Eric Burris, a shareholder; (2) $535
per hour for Carolynne White, a shareholder; (3) $420 per hour for Ishra Solieman, a staff
attorney; (4) $280 per hour for Cole Woodward, a second-year associate; and (5) $265 per hour
for Penny Lalonde, a senior paralegal. (Id. ¶ 8.) These rates are consistent with the billing
rates of attorneys and paralegals in similar-sized firms with similar levels of expertise and
experience in the local legal community. (Id. ¶ 9.)
25. The number of hours expended by BHFS on defending this matter was also
reasonable. (Ex. 1, Burris Aff. ¶ 10, 11.) Among other things, BHFS attorneys were required
to review and analyze Mr. Sutherland’s Complaint, identify its legal and procedural
deficiencies, research the effect of those deficiencies, and draft a Motion to the Court
requesting appropriate relief. (Ex. 1, ¶ 10.)
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26. Moreover, TDA and Compass achieved complete success in the matter, and the
Court dismissed all claims brought by Mr. Sutherland against TDA and Compass.
D. Materials Evidencing Time Spent and Reasonableness of Fees
27. The affidavit of Eric R. Burris also sets forth the amount of fees incurred by
TDA and Compass in defending the claims brought by Mr. Sutherland. (Ex.1, Burris Aff., ¶
6.) In addition, attached as Exhibits 2 and 3 are itemized summaries of the tasks performed by
each BHFS attorney or paralegal involved in the case, along with the amount of time spent on
each task, between May 1, 2018 and the filing of this Motion. Exhibits 2 and 3 evidence the
fees TDA and Compass incurred in this action.
28. Mr. Burris’ affidavit also explains why TDA and Compass’ fees are reasonable
under the circumstances. (Ex. 1, Burris Aff., ¶¶ 10, 11.) The hourly rates charged for work
performed by BHFS are consistent with market rates for lawyers and paralegals in Denver of
similar background and experience. (Ex. 1, ¶¶ 7, 9.) The hourly rates on the invoices reflect
BHFS standard rates. (Ex. 1, ¶ 8.)
29. Ultimately, given the nature of the work performed and the result obtained, the
attorneys’ fees TDA and Compass incurred in defending this action were reasonable. (Ex. 1, ¶¶
7, 9.)
III. BILL OF COSTS
30. Colo. Rev. Stat. § 13-16-122 lists items that may be included in a party’s cost
award, but the list of items in the statute is not exhaustive. Welch v. George, 19 P.3d 675, 679-
80 (Colo. 2000).
31. TDA and Compass are seeking costs that they have incurred in responding to
Mr. Sutherland’s claims in the amount of $2,155.00 (Ex. 1, Burris Aff., ¶ 12.)
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32. The summary attached as Exhibit 3 includes itemization of the litigation costs
and expenses that have been incurred in this matter by BHFS.
33. As set forth in Mr. Burris’ Affidavit, TDA and Compass were billed for these
costs separately from the attorneys’ fees and all of the costs were both reasonable and
necessary. (Ex. 1, Burris Aff., ¶¶ 12, 14.)
IV. CONCLUSION
WHEREFORE, TDA and Compass respectfully request that this Court award attorneys’
fees and costs, in favor of TDA and Compass, and against Mr. Sutherland, as follows:
• Attorneys’ fees in the amount of $75,532.00; and
• Costs in the amount of $2,155.00.
DATED this 1
st
day of August, 2018.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Original signature on file at offices of Brownstein Hyatt Farber Schreck
pursuant to C.R.C.P. 121 § 1-26
By: s/Cole J. Woodward
Eric R. Burris, admitted pro hac vice
Cole J. Woodward, #50199
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA AND WALDRON
Attorneys for The Timnath Development Authority and
Compass Mortgage Corporation
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 1
st
day of August, 2018, a true and correct
copy of the foregoing THE TIMNATH DEVELOPMENT AUTHORITY AND COMPASS
MORTGAGE CORPORATION’S COMBINED MOTION FOR ATTORNEYS’ FEES
AND BILL OF COSTS was filed with the Court and served via Colorado Courts E-filing
System on pro se Plaintiff as follows:
By E-Mail and Regular Mail
Eric Sutherland
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Phone: 970.224.4509
Email: sutherix@yahoo.com
s/Penny G. Lalonde
Penny G. Lalonde, Paralegal
17138867