HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 114 - ORDER GRANTING STEVE MILLER AND IRENE JOSEY'S MOTION FOR ATTORNEYS FEES1
District Court, Larimer County, State of Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 494-3500
▲ COURT USE ONLY ▲
Plaintiff:
Eric Sutherland
v.
Defendants:
The City of Fort Collins, et al.
Case Number: 2018CV149
Courtroom: 5B
ORDER GRANTING STEVE MILLER’S AND IRENE JOSEY’S MOTION FOR
ATTORNEYS’ FEES
Defendants Miller and Josey filed a Motion for Attorney Fees on October 12,
2018. On October 23, 2018, Plaintiff filed a notice of appeal. The Court issued a status
order on October 29, 2018, informing the parties that it would not consider the pending
motions for attorney fees until directed to do so by the Court of Appeals. On December
6, 2018, the Court reconsidered its October 29 order and ordered Plaintiff to file a
response to Miller’s and Josey’s Motion for attorney fees no later than December 20,
2018. Defendant did not file a response to Miller’s and Josey’s Motion for attorney fees.
Having reviewed the motion, the court finds and orders as follows.
On April, 26, 2018, Eric Sutherland filed a Complaint for Declaratory Judgment
and Equitable Relief. Plaintiff sought a declaratory judgment from the Court finding
that any repayment of debt would be an unlawful violation of the Urban Renewal
Authority Act. C.R.S. § 13-25-101, et seq. Plaintiff asked the Court to enjoin the Larimer
County Assessor and the Larimer County Treasurer from “calculating or disbursing
property tax increment for the purposes of repaying any part” of the debt.
On September 5, 2018, this Court dismissed all of Plaintiff’s claims against the
City of Fort Collins, Steve Miller, and Irene Josey. Miller and Josey now seek an award
of attorneys’ fees pursuant to C.R.S. § 13-17-102.
DATE FILED: April 2, 2019
CASE NUMBER: 2018CV149
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I. Legal Standards
In a civil action, a court may award attorney fees if the opposing party “brought
or defended an action, or any part thereof, that lacked substantial justification.” C.R.S. §
13-17-102(4). An action “lacked substantial justification” if it was “substantially
frivolous, substantially groundless, or substantially vexatious.” Id. Attorney fees may
only be awarded against an unrepresented party when “the party clearly knew or
reasonably should have known that his action or defense, or any part thereof, was
substantially frivolous, substantially groundless, or substantially vexatious.” C.R.S. §
13-17-102(6).
“A claim is substantially frivolous if the proponent can present no rational
argument based on the evidence or law in support of that claim or defense.” City of
Aurora ex rel. Util. Enter. v. Colorado State Eng'r, 105 P.3d 595, 620 (Colo. 2005), as modified
on denial of reh'g (Feb. 14, 2005).
If a party “requests a hearing concerning the award of fees and costs… then the
district court must hold a hearing.” In re Marriage of Aldrich, 945 P.2d 1370, 1379–80
(Colo. 1997). If, however, a party objects to the amount of fees requested but does not
request a hearing, the court is not required to hold a hearing. Id.
When determining whether to award attorney fees and, if so, what amount to
award, the court examines a list of factors:
(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;
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(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(1).
II. Application of Law
1. Mr. Sutherland’s Action was Substantially Frivolous
Mr. Sutherland’s action was substantially frivolous for three principal reasons:
(A) Mr. Sutherland was aware that he had no standing when he filed his complaint; (B)
Mr. Sutherland filed numerous “claims for relief” that were clearly not recognizable
legal claims; and (C) Mr. Sutherland brought this action knowing that he has not
suffered an injury and may never suffer an injury as a result of Defendants’ alleged
actions.
A. Standing
Plaintiff in this action, Mr. Sutherland, “clearly knew or reasonably should have
known” that the action he filed was substantially frivolous. C.R.S. § 13-17-102(6). Mr.
Sutherland brought this action primarily as an attempt to enforce the provisions of the
URA. See Order Granting TDA’s Motion to Dismiss at 3. Colorado law is clear that
taxpayers do not have standing to enforce the provisions of this statute. Olson v. City of
Golden, 53 P.3d 747, 752 (Colo. App. 2002). Mr. Sutherland was aware of this
prohibition when he filed his complaint. See Complaint at ¶33. Despite being aware of
this bar to standing, Mr. Sutherland filed a complaint alleging nineteen claims for relief
against TDA, Compass, the Larimer County Treasurer, Larimer County Assessor, and
the City of Fort Collins. It was substantially frivolous for Mr. Sutherland to allege
nineteen claims for relief against these defendants with the knowledge that he lacked
standing.
B. Claims for Relief
Mr. Sutherland’s claims four through eleven and fourteen through nineteen are
not recognizable claims for relief and, in some cases, not even complete sentences. For
example, the fourth claims states in full, “Poudre Valley Fire Protection District
agreement.” His fifth claim states in full, “Timnath Ranch agreement.” His sixth claims
states in full, “Timnath Farms Metropolitan districts agreement.” These “claims” are not
recognizable as claims, do not set forth to whom they apply and are not even complete
sentences. Mr. Sutherland “reasonably should have known” that claims four through
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eleven and fourteen through nineteen were substantially frivolous. See Response to Fort
Collins Mot. To Dismiss at 2 (Mr. Sutherland acknowledges that “Claims numbered
Fourteen through Nineteen… were not sufficiently expressed and should be
dismissed”). It was substantially frivolous for Mr. Sutherland to file claims that clearly
do not allege any recognizable claim for relief and, in some instances, contain nothing
more than the name of an agreement.
C. Injury-in-fact
Mr. Sutherland did not suffer any injury-in-fact, as required by Colorado
standing law, before he commenced this action. “To satisfy the injury-in-fact prong of
the Wimberly standing test (as set forth in Brotman), the injury must be direct and
palpable.” Olson, 53 P.3d at 750, citing Cloverleaf Kennel Club, Inc. v. Colorado Racing
Commission, 620 P.2d 1051 (Colo. 1980). Here, Mr. Sutherland’s claimed injury centers
on his beliefs that (1) Poudre School District will raise taxes in the future due to lost
revenue and (2) Fort Collins will raise electric rates in the future due to lost revenue.
Mr. Sutherland acknowledges that neither of these injuries are certain to occur and that
it cannot be known for some time whether they will come to pass. See, e.g., Response to
Fort Collins Mot. To Dismiss at 5. An injury that “cannot be determined until a remote
time in the future is not sufficiently direct and palpable to support a finding of injury-
in-fact.” Olson, 53 P.3d at 750. Mr. Sutherland reasonably should have known that it
was substantially frivolous to file this action knowing that he had not suffered an
injury, as required by Colorado standing law.
2. C.R.S. § 13-17-103(1) Factors
The court further finds as follows:
A. Efforts made to determine the validity of the claims before asserting them
There is no indication that Mr. Sutherland made any effort to determine the
validity of any of his claims before he asserted them. Mr. Sutherland argues that he has
“been looking at Tax Increment Financing for nearly a decade.” Response to Timnath
Development Authority’s Motion for Attorney Fees at 9. While this may be so, Mr.
Sutherland does not allege that he made any effort to ensure that any of his legal claims
were valid.
B. Efforts made to reduce the number of claims or dismiss those found not to be
valid
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Mr. Sutherland brought many claims that are clearly not legally recognizable
claims for relief. Mr. Sutherland did not move to dismiss any of these claims before
they were dismissed by the Court on a motion from the opposing party. Therefore, Mr.
Sutherland made no effort to reduce the number of his claims or dismiss those that
lacked merit.
C. Availability of facts to assist a party in determining the validity of a claim
All of the facts necessary to determine the validity of Mr. Sutherland’s claims
were available to him prior to the filing of this action. Mr. Sutherland has made no
allegation that he was unable to obtain the necessary facts prior to commencing this
action.
D. Relative financial positions of the parties
No information regarding this factor was provided by either party.
E. Bad faith
Miller and Josey allege that Plaintiff’s claims “lacked any justification” and “that
pursuit of those claims was vexatious”. Motion at 6. This is an allegation of bad faith.
After considering the pleadings and testimony provided at the June 27, 2018 hearing,
the Court finds that the Plaintiff brought the action in bad faith.
F. Issues of fact in conflict
There are no issues of fact in conflict in this matter. Mr. Sutherland sought a
ruling that certain bonds are invalid because the proper procedures were not followed.
Mr. Sutherland does not have standing to bring these claims and there is no factual
dispute as to Mr. Sutherland’s standing.
G. Extent the party prevailed with respect to the claims
In this Court’s order dated September 5, 2018, all of Mr. Sutherland’s claims were
dismissed as they related to Miller and Josey. Thus, Miller and Josey prevailed entirely
with respect to the claims against them in this action.
H. Amount and conditions of an offer of judgment or settlement
No party in this case offered judgment or settlement.
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3. Award
Plaintiff did not file a response to Miller’s and Josey’s motion. Therefore, the
Court awards the full amount of attorneys’ fees requested by Miller and Josey.
Order
The Court enters judgment in favor of Steve Miller and Irene Josey and against
Eric Sutherland in the amount of $2,860.00 in attorney fees. Interest shall accrue at the
statutory rate of 8% per annum.
Dated: April 2, 2019.
BY THE COURT:
__________________________
Gregory M. Lammons
District Court Judge