Chapter 4 - § 4.7 • ANSWER OR OTHER RESPONSIVE PLEADING

• Jurisdiction: Colorado

§ 4.7 • ANSWER OR OTHER RESPONSIVE PLEADING

Once the condemnation action has been filed and service on the respondent(s) has been accomplished, one of the most confusing aspects of Colorado eminent domain law deals with the manner by which a respondent should formally respond to the petition in condemnation. This confusion is caused in part by the language of C.R.S. § 38-1-109, which provides that except for a "cross petition," to be filed by "[a]ny person not made a party to such proceeding[,] . . . there shall be no written pleadings on the part of any party to the proceeding."³⁷ This language has led some to believe that the filing of a formal answer to the condemnation petition on the part of a named party is not necessary. Indeed, early case law in the form of Denver & R.G.R. Co. v. Griffith actually supports this interpretation.³⁸ However, other statutory provisions and case authorities decided after Denver & R.G.R. Co., as discussed below, now make it advisable that an answer or other responsive pleading should be filed, particularly if the owner or interested party seeks to challenge the condemnation action on legal grounds.

C.R.S. § 38-1-106, enacted after Denver & R.G.R. Co. was decided, provides that "before the expiration of the time for the defendant to appear and answer" the defendant may demand a jury of freeholders to determine the compensation to be paid.³⁹ This language was interpreted in Whitehead v. City of Denver to justify the filing of an answer in a condemnation action.⁴⁰ Subsequently, in Williams v. Board of Commissioners, a landowner who failed to file an answer raising issues as to the petitioner's authority to condemn by the date set forth in the summons was deemed to have waived the right to a trial on such issues.⁴¹

The need to file an answer, particularly when legal challenges to the right to condemn are being raised is re-enforced by the supreme court's decision in Pine Martin Mining Co. v. Empire Zinc Co.⁴² There, the court held that questions intended to defeat the condemnation proceedings must be raised in advance by the respondent and then determined by the court in limine. The proper method for raising such defenses, of course, would be through the filing of an answer or other appropriate responsive pleading, such as a motion to dismiss. In Town of Silverthorne v. Lutz,⁴³ the court of appeals, while recognizing that "technically" there is no need to file an answer in a condemnation action, held that the trial court did not abuse its discretion in ordering the landowner to do so. Addressing the merits of the condemning entity's assertion that the landowner waived its condemnation defenses by not filing an answer, the court held that no such waiver occurred under circumstances where the landowner filed a motion to dismiss that adequately advised the Town of the landowner's defenses.

A sample answer to a condemnation petition can be found in Appendix A of this book.⁴⁴ However, in general, there are several elements that a respondent should include in its answer in order to ensure that it has properly identified the matters in controversy between the parties. Provided below is a more detailed discussion of suggested elements to include in a respondent's answer to the petition in condemnation.

§ 4.7.1—Denial of Allegations and Affirmative Defenses

The answer should respond to all individual allegations of the petition, either by a...