HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 153 - CITY OF FORT COLLINS RESPONSE TO PLAINTIFF'S MOTION FOR A HEARINGActive/50620420.1
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’ RESPONSE TO PLAINTIFF’S MOTION FOR A
HEARING
DATE FILED: September 5, 2019 2:08 PM
FILING ID: 1762C51049BBD
CASE NUMBER: 2018CV149
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The City of Fort Collins (the “City”) filed it Second Motion for Attorneys’ Fees and
Costs (the “Fee Motion”) to recover the fees and costs it incurred responding to Mr. Sutherland’s
post-dismissal conduct that unnecessarily expand the scope of this proceeding. Mr. Sutherland
now requests a hearing on the City’s Fee Motion. See 8/6/19 Plaintiff’s Motion for a Hearing of
Defendant City of Fort Collins’ Second Combined Motion for Attorneys Fees and Costs (the
“Motion for a Hearing”). The City agrees that Mr. Sutherland is entitled to an evidentiary
hearing on its second Fee Motion. However, the hearing should be limited to the post-dismissal
conduct that gave rise to the requested fees and the reasonableness of the fees requested.
RESPONSE
An evidentiary hearing on attorney fees is not an opportunity to re-litigate issues the court
has already decided. Instead, the right to a hearing on a motion for attorneys’ fees is narrowly
circumscribed. A party is entitled to an evidentiary hearing on a motion for attorneys’ fees to
challenge the limited issues of the “reasonableness and necessity of attorney fees.” In re
Marriage of Mockelmann, 944 P.2d 670, 672 (Colo. App. 1997); see also Roberts v. Adams, 47
P.3d 690, 700 (Colo. App. 2001) (“if the reasonableness of such fees is challenged, the
challenging party is entitled to a hearing”).
In his Motion for a Hearing, Mr. Sutherland listed the following issues to be addressed at
the hearing:
1) The division of the requested expenses between the various activities complained of in
the Second Motion for Fees. (No assignment of line item costs to individual activities, i.e.
hearing, coram non judice motion, etc. was made.)
2) All factual matters pertaining to the new theory of law I advanced to support my claim
of standing in this matter; the Uniform Declaratory Judgment Act must be interpreted
liberally to allow for judicial review of a request for declaratory judgment made in
advance of time bar to future inquiry imposed by a non-claim statute so long as there is
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possibility of future injury regardless of how indirect that possibility may be at the time
of filing.
3) All factual matters pertaining to the causation of the activities complained of by the
City of Fort Collins in their Second Motion.
Hearing Motion at 2-3.
Only issues one and three relate to the reasonableness and necessity of the City’s
requested fees. Mr. Sutherland can address the “factual matters” of his post-dismissal conduct
and put forth evidence of the merits of his positions (issue three) and he can also contest the
structure of the City’s requested fees (issue one). These issues relate to the subject and substance
of the City’s second Fee Motion.
But, Mr. Sutherland’s second issue is improper. As an initial matter, Mr. Sutherland
already received a half-day hearing on the merits of his complaint and his “new theory of law.”
Issue two is word-for-word the same issue presented in Mr. Sutherland’s request for hearing on
the City’s first motion for attorneys’ fees. See 10/18/18 Plaintiff’s Motion for a Hearing of
Defendant City of Fort Collins’ Combined Motion for Attorneys Fees and Costs at 2. At the
March 15, 2019 hearing, Mr. Sutherland received a fair and full opportunity to present evidence
on his theory of standing. After that hearing, this Court issued its order granting the City’s fees
and costs. See 4/2/19 Order Granting Fort Collins’s Motion for Attorneys’ Fees and Bill of
Costs (“Order”). In that Order, this Court determined that his theory of standing was frivolous.
Order at 4 (“Plaintiff’s argument that he asserted a novel theory of law is also not persuasive. . .
There is no properly pled claim setting forth Plaintiff’s novel legal theory regarding standing.”).
This Court has repeatedly held that Mr. Sutherland’s novel theory of standing is frivolous.
Permitting Mr. Sutherland to continually re-litigate his theory of standing simply opens the door
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to additional fee awards. E.g., Rose L. Watson Revocable Tr. v. BP Am. Prod. Co., 2014 COA
11, ¶ 25 (awarding fees on appeal for re-litigating arguments previously deemed frivolous by the
trial court: “And it is still quite another [thing] to continue to assert frivolous arguments even
after courts have repeatedly declared that those arguments are frivolous.”).
The City’s second Fee Motion is tailored to post-dismissal conduct that unnecessarily
expanded the scope of the proceeding. Therefore, Mr. Sutherland’s requested hearing is properly
limited to the post-dismissal conduct that is the subject of the City’s Fee Motion. Mr.
Sutherland’s “new theory of law” is no longer at issue and he is not entitled to another
opportunity to litigate the merits of his dismissed complaint. See E-470 Pub. Highway Auth. v.
Jagow, 30 P.3d 798 (Colo. App. 2001) (trial court did not err in denying fees without conducting
a separate hearing, because the court had already presided over a hearing on the substantive
issues in the case and had heard evidence from which the court could decide whether the claims
were frivolous and groundless), aff'd, 49 P.3d 1151 (Colo. 2002). Because fee hearings are not
an opportunity to re-litigate substantive issues that have already been decided, trial courts can
restrict an attorney fees hearing if a litigant is attempting to go beyond the scope of the
reasonableness and necessity of the requested fees. For example, in Rose L. Watson Revocable
Tr. v. BP Am. Prod. Co., the Colorado Court of Appeals found that the trial court properly
restricted the cross-examination of an attorney witness at the attorney fees hearing because “the
attempted cross-examination was merely an attempt to relitigate the motion for summary
judgment.” 2014 COA at ¶ 23 n.6.
Similarly, because Mr. Sutherland’s second issue is an attempt to re-litigate the motion to
dismiss and subsequent dismissal, like the trial court in Rose L. Watson Revocable Tr., this Court
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should narrow the scope of the hearing to the reasonableness and the necessity of fees related to
Mr. Sutherland’s post-dismissal conduct.
CONCLUSION
Mr. Sutherland is not entitled to a boundless and protracted hearing to re-litigate the
merits of his original complaint. Therefore, Mr. Sutherland should receive a one-hour
evidentiary hearing on the City’s second Fee Motion that is limited to Mr. Sutherland’s post-
dismissal conduct and the reasonableness and necessity of the post-dismissal fees.
Dated this 5th day of September, 2019.
SHERMAN & HOWARD L.L.C.
s/ Rosemary A. Loehr
Rosemary A. Loehr (#52559)
John W. Mill (#22348)
Sherman & Howard L.L.C.
633 Seventeenth Street, Suite 3000
Denver, Colorado 80202
(303) 297-2900
rloehr@shermanhoward.com
jmill@shermanhoward.com
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CERTIFICATE OF SERVICE
I certify that on the 5th day of September, 2019, a true and correct copy of the foregoing
CITY OF FORT COLLINS’ RESPONSE TO PLAINTIFF’S MOTION FOR A HEARING
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/ Nancy Hedges
Nancy Hedges, Legal Secretary