Chapter 19 - § 19.8 • ATTORNEY FEES

• Jurisdiction: Colorado

§ 19.8 • ATTORNEY FEES

Colorado follows the American rule for attorney fees, meaning that a request to the court for attorney fees must be grounded in "specific legislative authority."²⁵⁶ Under C.R.S. § 13-17-201, the attorney fees statute in Colorado, a party may seek attorney fees on the basis of a tort claim dismissed under Colorado Rule of Civil Procedure12(b).²⁵⁷ The Colorado federal district court has interpreted the attorney fees statute by assuming that inverse condemnation was a tort, and finding that inverse condemnation is a claim that must be "'conducted strictly according to the procedures prescribed by the eminent domain statute.'"²⁵⁸ In reviewing the eminent domain statute, the court concluded that "the Colorado legislature did not intend to allow attorney fees" in inverse condemnation claims.²⁵⁹ Further, the court noted that "no Colorado court has ever applied § 13-17-201, C.R.S., in the context of inverse condemnation proceedings."²⁶⁰

Litigants may seek reasonable attorney fees under C.R.S. § 38-1-122(1) "[i]f the court finds that a petitioner is not authorized by law to acquire real property or interests therein sought in a condemnation proceeding."²⁶¹ Therefore, if the court decides that there was no public purpose for a condemnation proceeding, the petitioner may be entitled to reasonable attorney fees.²⁶² Additionally, under C.R.S. § 38-1-122(1.5), a landowner is entitled to attorney fees if the condemnation award by the court equals or exceeds 130 percent of the last written offer given to the landowner.²⁶³ The "last written offer" is the final amount offered to the landowner by the condemning authority prior to the filing of the condemnation action.²⁶⁴ "Award by the court" means the court's principal award, based on the difference between the last written offer and the value of the property, and not the prejudgment interest on that award.²⁶⁵

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Notes:

^[256] McIntyre v. Bd. of County Comm'rs of County of Gunnison, Colorado, 2008 U.S. Dist. LEXIS 9630, at *5, 2008 WL 269449, at *3 (D. Colo. Jan. 29, 2008) (denying attorney fees under C.R.S. § 13-17-201 because legislature did not intend to include attorney fees in the eminent domain statute).

^[257] Id., 2008 WL 269449, at *2.

^[258] Id., 2008 WL 269449, at *2 (quoting Hayden v. Bd. of County Comm'rs of Jefferson County, 580 P.2d 830, 833 (Colo. App. 1978)).

^[259] Id. at *6, 2008 WL 269449, at *2; see also City of Black Hawk v. Ficke, 215 P.3d 1129, 1134 (Colo. App. 2008) (stating...