HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 152 - CITY'S REPLY IN SUPPORT OF ITS SECOND MOTION FOR ATTORNEYS' FEES AND COSTSActive/50545931.2
DISTRICT COURT, LARIMER COUNTY,
COLORADO
Court Address: 201 La Porte Avenue
Fort Collins, CO 80521
Phone Number: (970) 494-3500
▲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.
Attorneys for Defendant City of Fort Collins:
John W. Mill (#22348)
Rosemary A. Loehr (#52559)
Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
Phone Number: (303) 297-2900
jmill@shermanhoward.com
rloehr@shermanhoward.com
Carrie M. Daggett, #23316
John R. Duval, #10185
Fort Collins City Attorney’s Office
300 LaPorte Avenue
Fort Collins, CO 80522-0580
970-221-6520
cddaggett@fcgov.com
jduval@fcgov.com
Case No.: 2018CV149
Courtroom/Division: 5B
CITY OF FORT COLLINS’ REPLY IN SUPPORT OF ITS SECOND MOTION FOR
ATTORNEYS’ FEES & COSTS
DATE FILED: August 21, 2019 3:59 PM
FILING ID: AB972FCA209B9
CASE NUMBER: 2018CV149
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Mr. Sutherland unnecessarily expanded the scope of this action through his post-
dismissal conduct. Pursuant to C.R.S. § 13-17-102(4), the City of Fort Collins (the “City”) is
entitled to an award of attorneys’ fees against Mr. Sutherland to compensate the City for the fees
and costs it incurred responding to Mr. Sutherland’s continued frivolous litigation tactics.
ARGUMENT
The City’s Second Motion for Attorneys’ Fees & Costs (the “Motion”) addressed how
and why Mr. Sutherland’s post-dismissal conduct was frivolous. Those positions need not be
reiterated here. This Reply addresses why the other issues identified in Mr. Sutherland’s
response are unavailing.
I. The Court has Jurisdiction to Decide the City’s Motion
“A trial court has continuing jurisdiction to determine attorney fee issues after a notice of
appeal is filed to review the merits judgment.” A. Tenenbaum & Co. v. Colantuno, 3 P.3d 456,
458 (Colo. App. 1999), as modified on denial of reh'g (Dec. 23, 1999), aff'd, 23 P.3d 708 (Colo.
2001). This Court has already recognized that trial courts have jurisdiction over attorneys’ fees
motions even after a party has filed a notice of an appeal. See 12/6/18 Order Granting Motion
for Reconsideration.
II. Mr. Sutherland’s Claims are Frivolous Despite the Alleged Novelty
Mr. Sutherland’s self-characterized “novel” theory of standing does not immunize him
from sanctions. “Claims involving novel questions of law for which no determinative authority
exists are not frivolous, groundless, or vexatious.” M Life Ins. Co. v. Sapers & Wallack Ins.
Agency, Inc., 962 P.2d 335, 338 (Colo. App. 1998) (emphasis added). “However, if a party fails
to present plausible arguments in support of a novel claim, sanctions may be imposed . . .”
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Sullivan v. Lutz, 827 P.2d 626, 628 (Colo. App. 1992) (emphasis added); see also Nienke v.
Naiman Grp., Ltd., 857 P.2d 446, 449 (Colo. App. 1992) (issue of first impression may be
frivolous if the party fails to present a rational argument in support of it).
Substantial determinative authority exists on the constitutional requirement of a direct
and palpable injury and Mr. Sutherland did not present any evidence, plausible or otherwise, to
substantiate a legally cognizable injury. Even if Mr. Sutherland could advance some evidence of
injury, his position would still have no rational basis. Mr. Sutherland’s suit sought to jeopardize
the City’s largest bond offering so that he could “avoid paying higher electric bills.” Response at
5. This Court has already heard and accepted sworn testimony from Mr. Michael Beckstead, the
City’s Chief Financial Officer, who testified at the previous fees hearing and in his affidavit that
(1) it is highly unlikely electricity taxes will be impacted by the bond offering and (2) it would be
at least five to eight years before any impact could be determined. See 7/18/18 Affidavit of
Michael Beckstead at ¶ 16 (“Based on the statistically valid surveys, the election, construction
costs, and other diligence conducted by the City, in my opinion the estimates are conservative
and have a high degree of confidence there will be no impact on the electric rate payers.
Furthermore, it will be 5 to 8 years before it can be determined whether there will be any impact
on electric utility rates.”) (Filing Id. BF0E70FBC34B1). There is no rational argument—and no
evidence—to support any cognizable injury that Mr. Sutherland has or will suffer as a result of
the City’s bond offering.
Mr. Sutherland lacked standing to sue. He admitted he understood the requirements of
standing at the fees hearing in February and he admitted that he filed suit notwithstanding his
lack of injury. At no point during the fees hearing or the subsequent post-dismissal motions has
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Mr. Sutherland established any sort of injury that could satisfy the requirement of standing.
Instead, he simply re-litigated his “novel” theory at every opportunity. Mr. Sutherland’s
frivolous post-dismissal conduct has significantly burdened the City and its taxpayers and the
City’s Motion is proper to sanction that conduct and provide redress.
III. The Court Should Rule on the City’s Motion
The Court can and should rule on the City’s Motion. Mr. Sutherland asserts that at a
minimum the Court should delay ruling on the City’s Motion until after the Court of Appeals has
decided the current appeal. See Mr. Sutherland’s response at 5. But he presents no reason or
authority for such a delay. There is none. The Court has jurisdiction over requests for attorneys’
fees even when an appeal is pending. Delaying a ruling on the City’s Motion will serve no
purpose and will just delay the final resolution of the issues.
CONCLUSION
The City respectfully requests that the Court award additional attorneys’ fees and costs in
favor of the City, and against Mr. Sutherland, as follows:
$44,139.37 Attorneys' Fees
$1,333.13 Costs
$45,472.50 Total
The City also requests that the Court require Mr. Sutherland to pay interest on the amount
of the award until paid in full. See C.R.S. § 5-12-102(1)(b).
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Dated this 21st day of August, 2019.
SHERMAN & HOWARD L.L.C.
s/ John W. Mill
Rosemary A. Loehr (#52559)
John W. Mill (#22348)
Attorneys for the City of Fort Collins
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CERTIFICATE OF SERVICE
I certify that on the 21st day of August, 2019, a true and correct copy of the foregoing CITY
OF FORT COLLINS’ REPLY IN SUPPORT OF ITS SECOND MOTION FOR
ATTORNEYS’ FEES AND COSTS was filed via Colorado Court’s E-Filing system, and was
served on the following:
Eric Sutherland, pro se
3520 Golden Currant Boulevard
Fort Collins, CO 80521
(By email and US Mail)
Eric R. Burris, Esq.
Jesse Daniel Sutz, Esq.
Chloe Mickel, Esq.
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202
(By Colorado Court’s E-Filing)
/s/ Rebecca Janzen
Rebecca Janzen, Legal Secretary