Chapter 15 - § 15.3 • STATUTORY RECOVERY OF ATTORNEY FEES

• Jurisdiction: Colorado

§ 15.3 • STATUTORY RECOVERY OF ATTORNEY FEES

Unlike the treatment of costs, for many years landowners in all condemnation actions were denied recovery for their attorney fees on the basis that attorney fees were not reimbursable absent a statute entitling the owner to recover such fees against a condemning entity.²⁵ More recently, however, various statutes have been enacted that now authorize the recovery of a landowner's reasonable attorney fees against a condemning entity under limited circumstances. Those statutes are discussed and analyzed below.

§ 15.3.1—Dismissal of Condemnation Case

The first exception to the general prohibition against the recoverability of attorney fees in a condemnation action came about in 1985 when the General Assembly adopted C.R.S. § 38-1-122(1), which provides:

If the court finds that petitioner is not authorized by law to acquire real property or interests therein sought in a condemnation proceeding, it shall award reasonable attorney fees, in addition to any other costs assessed, to the property owner who participated in the proceedings.

As the numerous cases in the following note show, C.R.S. § 38-1-122(1) mandates the payment of a respondent's reasonable attorney fees against the petitioner when the condemnation action is successfully dismissed on any legal ground, not just for lack of legal authority to condemn.²⁶

§ 15.3.2—Award Above Pre-condemnation Offer

Many years after the state legislature adopted C.R.S. § 38-1-122, another attorney fee statute relevant to condemnation proceedings was enacted as C.R.S. § 43-4-506(1)(h)(II)(B). This statute pertains exclusively to public highway authorities seeking to condemn property for public highway purposes. Under its provisions, an authority is required to reimburse a landowner for "reasonable attorney fees" and for "reasonable costs" of litigation if the ultimate award "equals or exceeds one hundred thirty percent of the last written offer given to the property owner prior to the filing of the condemnation action."

Within a few short years after this statute was enacted, C.R.S. § 38-1-122 was amended to add an entirely new subsection, referred to as subsection 1.5. This statutory provision, unlike C.R.S. § 43-4-506(1)(h)(II)(B), pertains to all condemning entities, except for those acquiring rights-of-way under the provisions of Colorado Revised Statutes Article 4, 5, or 5.5 of Title 38; Article 45 of Title 37; or Section 7 of Article XVI of the Colorado Constitution.²⁷ The language of this statute as it pertains to the award of attorney fees is nearly identical to the language in C.R.S. § 43-4-506(1)(h)(II)(B) on which it was based. C.R.S. § 38-1-122(1.5) reads:

In connection with proceedings for the acquisition or condemnation of property in which the award determined by the court exceeds ten thousand dollars, in addition to any compensation awarded to the owner in an eminent domain proceeding, the condemning authority shall reimburse the owner whose property is being acquired or condemned for all of the owner's reasonable attorney fees incurred by the owner where the award by the court in the proceedings equals or exceeds one hundred thirty percent of the last written offer given to the property owner prior to the filing of the condemnation action.

Because C.R.S. § 43-4-506(1)(h)(II)(B) and C.R.S. § 38-1-122(1.5) are nearly identical provisions, the following discussion of the cases that have interpreted each provision within the context of various factual circumstances should properly be applied to both statutes.

Wagner v. E-470 Public Highway Authority was the first case to interpret the provisions of...