HomeMy WebLinkAbout2018CV149 - Sutherland V. City Of Fort Collins, Steve Miller & Irene Josey - 058 - Defendant Miller And Josey's Motion For Award Of Attorneys FeesLarimer County, Colorado, District Court
Larimer County Justice Center
201 La Porte Avenue, Suite 100
Fort Collins, Colorado 80521-2761
(970) 494-3500
Court Use Only
Plaintiff:
ERIC SUTHERLAND,
v.
Defendant:
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.
Jeannine Haag, Reg. No. 11995
David P. Ayraud, Reg. No. 28530
George H. Hass, Reg. No. 897
Larimer County Attorney’s Office
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone (970) 498-7450
jeanninehaag@larimer.org
wressue@larimer.org
ghass@larimer.org
Case No. 18 CV 149
Courtroom 5B
DEFENDANTS MILLER AND JOSEY’S
VERIFIED MOTION FOR AWARD OF ATTORNEY FEES
Defendants Steve Miller and Irene Josey (County Defendants) move for an award of
attorney fees pursuant to C.R.S. Section 13-17-101 et. seq. As grounds for this motion, County
Defendants show the court as follows:
DATE FILED: October 12, 2018 4:41 PM
FILING ID: 2E738F89DB033
CASE NUMBER: 2018CV149
Certificate of Compliance with C.R.C.P. 121 Section 1-15(8)
The undersigned certifies that he has conferred with Plaintiff via email communication
and explained the basis for this motion and the amount of fees requested. Sutherland objects to
the motion.
I. Introduction
The relevant background to this motion is as follows:
Plaintiff (Sutherland) filed his complaint against the County Defendants and others on
April 26, 2018. Sutherland essentially sought injunctive and other relief against the County
Defendants to prohibit the collection and distribution of certain taxes Sutherland sought to have
declared improper for various reasons he alleged in the complaint.
On July 11, 2018, this court granted the motion to dismiss of Defendants, Timnath
Development Authority (TDA) and Compass Mortgage Corporation primarily on the basis of
Sutherland’s lack of standing to make the claims.
Thereafter, on August 3, 2018, the County Defendants moved to dismiss Sutherland’s
claims arguing inter alia that since Sutherland’s claims against the County Defendants was
derivative of his claims against TDA and Compass, and those were dismissed, he had no viable
claim against the County Defendants. Sutherland refused to dismiss his claims against the
County Defendants seeking an injunction against collecting and distributing tax revenue
notwithstanding his direct knowledge that Sutherland had no standing to challenge the
underlying tax.
On September 5, 2018, this court granted a motion to dismiss the claims against these
Defendants and his claims against the City of Fort Collins.
II. Basis for award of fees
C.R.S. § 13-17-102 (4) provides:
The court shall assess attorney fees if, upon the motion of any party or the court itself, it
finds that an 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 . . .. (emphasis added)
Colorado law adds an additional “know or should have known” requirement in the case
of a pro se litigant:
No party who is appearing without an attorney shall be assessed attorney fees unless the
court finds that 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; § 13-17-102(6)
In this case, Sutherland knew that the court found and ordered that he had no standing to
pursue his claims on or before the County Defendants filed their motion to dismiss. Any claim
that Sutherland thought he plausibly had was erased when the Court issued the July 18, lack of
standing order. Sutherland must also be held to the understanding that since he had no basis to
contest the tax, he certainly had no basis to seek to enjoin the collection and distribution of the
revenue deriving from said tax. Instead of accepting the July 18, Order, Sutherland instead
persisted with his baseless claims thereby requiring the County Defendants to prepare and file its
Motion to Dismiss.
The Colorado Court of Appeals in Bockar v. Patterson, 899 P.2d 233 (Colo. App. 1994)
considered an attorney’s fees award against a pro se litigant and observed:
§13–17–102(6). It provides that attorney fees may not be assessed against a party
appearing without an attorney unless the court finds that the party “clearly knew or
reasonably should have known that the action or defense, or any part thereof, lacked
substantial justification.”
In Artes–Roy v. Lyman, 833 P.2d 62 (Colo.App.1992), a division of this court held that a
judgment for attorney fees could not stand against the plaintiffs, who had appeared
without an attorney, because the trial court failed to find that the plaintiffs clearly knew
or reasonably should have known that filing of the suit lacked substantial justification.
However, we do not read the case as supporting the proposition that an award of fees
against a party appearing without an attorney can never stand unless the action or defense
itself lacks substantial justification. No claim of vexatious conduct was made in Artes–
Roy, and the court had no occasion to address it. A vexatious claim is one brought or
maintained in bad faith to annoy or harass. It may include conduct that is arbitrary,
abusive, stubbornly litigious, or disrespectful of truth. Cf. Western United Realty, Inc. v.
Isaacs, 679 P.2d 1063 (Colo.1984); Stegall v. Stegall, 756 P.2d 384
(Colo.App.1987).Here, the record supports the trial court's finding that plaintiff clearly
knew or reasonably should have known that his action was substantially vexatious.
When considering any attorney fees award, §13-17-103 requires the court to consider the
following 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;
(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.
Here, Sutherland had received the Court Order holding that he had no standing to persue
the challenge to the tax prior to the County filing its motion. This obvious personal knowledge
that he had no standing to bring a challenge to the underlying tax should have caused Sutherland
to also voluntarily dismiss his claims against the County Defendants for collection and
distribution of the tax revenue. He stubbornly persisted with his claims with full knowledge that
he had no standing to do so. This actual knowledge compels the conclusion that not only did he
know his claims lacked any justification, let alone substantial justification, but that pursuit of
those claims was vexatious. These circumstances on their face compel applying each of the
above factors against Sutherland, except for (h) which is not applicable.
This entitles the County Defendants to an award of attorney fees.
III. Amount of Fees sought
The County Defendants request fees as follows:
For the undersigned George H. Hass’s time:
Date Action Rate/hour Hours Amount
July 27, 2018
Review Sutherland Complaint, case file and
Exhibits
$300 1.0 $300
7/30/2018
Westlaw research re motion to Dismiss; draft
motion to dismiss and forward to paralegal
$300 4.5
8/1/2018
Additional research, review and revise final
draft motion to dismiss. Forward to
Paralegal
$300 1.5
TOTAL $2,100.00
For paralegal time:
Date Action Rate/hour Hours Amount
7/9/2018
Email and phone call to Irene Josey re:
service of Complaint
$100 .2 $20
7/9/2018
Draft Motion and Proposed Order for
Extension of Time to Respond to Complaint;
finalize, e-file and mail to Plaintiff
$100 1.2 $120
7/10/2018
Review Order granting Extension for
Response; calendar deadline
$100 .1 $10
7/11/2018
Download and save previously-filed
pleadings into case folder; index into
pleadings file
$100 1.8 $180
7/12/18 Review, print and save e-filed pleading $100 .1 $10
7/18/2018 Review, print and save e-filed pleading $100 .7 $70
7/19/2018 Review, print and save e-filed pleading $100 .1 $10
7/24/2018 Emails to/from clients re: Complaint $100 .2 $20
7/30/2018 Phone call and email to client re: case status $100 .2 $20
8/2/2018
Review and finalize Motion and draft
proposed Order to Dismiss
$100 1.8 $180
8/3/2018
E-file Motion and proposed Order to
Dismiss; mail to Plaintiff
$100 .4 $40
8/7/2018 Email to clients $100 .1 $10
8/13/2018 Review, print and save e-filed pleading $100 .1 $10
8/15/2018 Review, print and save e-filed pleading $100 .1 $10
8/27/2018
Email from Attorney Hass re: pleadings;
print pleadings
$100 .1 $10
8/30/2018 Review, print and save e-filed pleading $100 .1 $10
8/31/2018 Emails to/from client $100 .1 $10
9/5/2018
Review, print and save e-filed pleading;
emails to/from client
$100 .2 $20
TOTAL $760.00
Total claim: $2,860.00
IV. Method by which fees are calculated
The undersigned attorney and the paralegal working on this case are salaried employees
of Larimer County, Colorado. When calculating an award of attorney fees for in-house salaried
attorneys and staff, the Colorado Court of Appeals in Ravenstar LLC v. One Ski Hill Place, 405
P.3d. 298 (Colo. App. 2016) held that such fees are to be calculated using the lodestar method.
The loadstar method means:
Where statute authorizes award of attorney fees, lodestar amount carries strong
presumption of reasonableness, but attorney must be held to reasonable standard of
competency in preparing and trying case and must consider economic aspects involved in
controversy; if attorney provides reasonable and rational basis for work done, attorney
should be compensated accordingly, but if attorney fails to establish such basis, limiting
award is appropriate. Dahl v. Young, (Colo App.1993) 862 P.2d 969, certiorari denied.
The undersigned has more than 45 years’ experience representing public entities
including Larimer County government. He has substantial experience in all aspects of litigation
concerning public entities. The amount of time spent drafting and filing the subject motion are
reasonable and necessary. The paralegal assigned to this case has 17 years’ experience with
litigation being her primary area of responsibility. There is a rational basis for all of the work
done. Based upon the undersigned’s knowledge of hourly rates for attorneys and paralegals with
similar levels of experience, the hourly rate of $300.00 is a reasonable rate and the paralegal rate
is based upon the hourly compensation.
WHEREFORE, the County Defendants request an award of attorney fees in the amount
of $2,860.00.
Dated: October 12, 2018
LARIMER COUNTY ATTORNEY’S OFFICE
By: s/George H. Hass
Jeannine S. Haag, Reg. No. 11995
William G. Ressue, Reg. No. 34110
George H. Hass, Reg. No. 897
Attorneys for Defendants Miller and Josey
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone: (970) 498-7450
Facsimile: (970) 498-7430
jeanninehaag@larimer.org
wressue@larimer.org
ghass@larimer.org
VERIFICATION
The undersigned George H. Hass, being first duly sworn state that the facts stated in the
above motion are true and correct; that he has personal knowledge of the matters stated therein;
the attorney and paralegal work on the case was performed and represented, and that the amount
of time and charges therefore are fair, necessary and reasonable.
s/George H. Hass
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this 12
th
day of October ,
2018, by George H. Hass.
Witness my hand and official seal
s/Jessica Ryan
Notary Public
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANTS MILLER AND JOSEY’S VERIFIED MOTION FOR AWARD OF
ATTORNEY FEES was served on the following using the Colorado Courts E-Filing System or
by placing in the U.S. Mail, postage prepaid, on the 12
th
day of October , 2018:
Eric Sutherland
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Eric R. Burris
BROWNSTEIN HYATT FARBER SCHRECK, LLP
201 Third Street NW, Suite 1800
Albuquerque, NM 87102
eburris@bhfs.com
Cole J. Woodward, #50199
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
cwoodward@bhfs.com
s/Jennifer D. Infeld