Board of Comm. of Boulder v. Eason, ___ P.2d ___ (Colo. App. May 28, 1998)

Board of Commissioners, County of Boulder, Plaintiff-Appellant,
v. Robert Eason, Defendant-Appellee.

No. 96CA1888

Court of Appeals

May 28, 1998

Prior Opinion Announced April 16, 1998 WITHDRAWN Petition for
Rehearing GRANTED
Petition for Rehearing Denied July 2, 1998

Appeal from the District Court of Boulder County, Honorable Morris W.
Sandstead, Jr., Judge, No. 93CV1157

ORDER AFFIRMED IN PART AND REVERSED IN PART

H. Lawrence Hoyt, County Attorney, C. Jan Rundus, Assistant County
Attorney, Boulder County Attorney's Office, Boulder, Colorado, for
Plaintiff-Appellant.

French & Stone, P.C., Joseph C. French, David M. Haynes, Boulder,
Colorado, for Defendant-Appellee.

Division IV

Vogt, J., concurs

Ruland, J., concurs in part and dissents in part

Opinion by JUDGE NEY

[1] In this action concerning the use of real property, plaintiff, Board of
County Commissioners, County of Boulder (Board), appeals the trial court's
award of attorney fees to defendant, Robert Eason. The court found that
plaintiff had violated defendant's due process rights and based its award on
42 U.S.C. § 1988 (1994). The court alternatively awarded defendant attorney
fees pursuant to 13-17-101, et seq., C.R.S. 1997, based on its finding that
plaintiff's action was brought in bad faith, was abusive, substantially
groundless, frivolous, and vexatious. We affirm the award under 13-17-101 et
seq. and reverse the award under 1988.

[2] Defendant owns real estate which is zoned for commercial use. In 1988, he
inquired of the Boulder County Land Use Department regarding his proposal to
use semi-trailers as commercial storage facilities on his property. In
response, the chief building officer informed defendant that his proposed use
qualified as "open storage," a permitted use on commercial-zoned property.
Defendant's use was approved subject to certain restrictions, with which
defendant only partially complied when he opened his self-storage business in
1991.

[3] In 1993, the Board informed defendant that his business violated the
Boulder County Zoning Resolution because the use of inoperable and unlicensed
vehicles for storage was not a permitted use within the commercial zone.
Defendant was ordered to remove his trailers within thirty days or face legal
consequences. Defendant refused to comply and the Board filed this
enforcement action seeking a declaratory judgment and injunctive relief to
compel defendant to remove the trailers from his property. Defendant denied
any wrongdoing and asserted as an affirmative defense that, to the extent the
Board was successful in obtaining the relief sought against him, he would be
deprived of due process of law.

[4] At the close of the Board's case, the trial court dismissed the complaint
and found that defendant's use of semi-trailers was lawful under the zoning
ordinance and building codes, that it was a use-by-right, that the land use
department was creating its own arbitrary standards, and that the Board had
violated defendant's due process rights by reinterpreting a zoning ordinance
without notice or a hearing.

[5] Defendant moved for attorney fees, which the court awarded based on
findings that, as a matter of fact and law, a due process violation had
occurred and that, therefore, attorney fees were justified under 42 U.S.C. §
1988. The court alternatively awarded attorney fees under 13-17-101, et seq.,
based on its finding that the Board's action against defendant constituted a
bad faith claim which was substantially frivolous, groundless, and vexatious.

[6] In an appeal on the merits of the declaratory judgment, the Board argued
that the trial court had erred in dismissing its action to enjoin defendant's
use of his property based on a finding that defendant had been denied due
process. However, a division of this court affirmed the judgment. Board of
County Commissioners v. Eason, (Colo. App. No. 95CA2207, May 15, 1997)(not
selected for official publication) (Eason I).

[7] Defendant subsequently brought a civil rights action against the Board
for damages pursuant to 42 U.S.C. § 1983 (1994) based on the same facts and
occurrences. The trial court dismissed on the basis of res judicata, stating
that the 1983 damages should have been sought in the declaratory judgment
action. Defendant appealed, and a division of this court concluded that, the
1983 claim had not been litigated in the declaratory judgment action, nor was
defendant required to assert it there. Hence, the action was not barred by
res judicata, and the court remanded the 1983 claim to the trial court for
trial on the merits of that claim. Eason v. Board of County Commissioners,
___ P.2d ___ (Colo. App. No. 96CA1691, December 26, 1997) (Eason II).

[8] In July 1997, the same division of this court which decided the appeal of
the declaratory judgment action (Eason I), issued a post-opinion order
stating that the appeal on the merits was not frivolous and stating further
that the determination that the original declaratory judgment action was
frivolous would be reviewed during the disposition of the appeal presently
before us. Therefore, we consider here the issues of whether the attorney
fees in the original case (Eason I) were properly awarded under either
13-17-101, et seq. or 42 U.S.C. § 1988., and whether the attorney fees in the
original case and appeal were properly awarded under 42 U.S.C. § 1988.

I.

[9] The Board argues that the trial court abused its discretion in awarding
defendant attorney fees for claims lacking substantial justification under
13-17-102 and 13-17-103, C.R.S. 1997, and failed to make findings that would
permit meaningful appellate review. We disagree.

[10] To prevail on a claim for attorney fees pursuant to 13-17-102, C.R.S.
1997, defendant has the burden of proving by a preponderance of evidence that
the Board's claims lacked "substantial justification." Section 13-17-102(2),
C.R.S., 1997; Board of County Commissioners v. Auslaender, 745 P.2d 999
(Colo. 1987). "Substantial justification" is defined by the statute as
"substantially frivolous, substantially groundless, or substantially
vexatious." Section 13-17-102(4), C.R.S. 1997.

[11] The decision to award attorney fees on the basis that a claim lacks
substantial justification is committed to the sound discretion of the trial
court. Engel v. Engel, 902 P.2d 442 (Colo. App. 1995).

[12] An award of attorney fees for instituting a frivolous, groundless, or
vexatious action will not be disturbed on appeal if supported by the
evidence, Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989), unless the court
has abused its discretion in making the award. Schmidt Construction Co. v.
Becker-Johnson Corp., 817 P.2d 625 (Colo. App. 1991).

[13] A claim is frivolous if the proponent can present no rational argument
based on the evidence or law in support of the claim. See Western United
Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984).

[14] A claim is groundless if the allegations in the complaint, while
sufficient to survive a motion to dismiss for failure to state a claim, are
not supported by any credible evidence. See Western United Realty, Inc. v.
Isaacs, supra.

[15] A vexatious claim is one brought or maintained in bad faith. Bockar v.
Patterson, 899 P.2d 233 (Colo. App. 1994). Bad faith may include conduct
which is arbitrary, vexatious, abusive, or stubbornly litigious, and may also
include conduct aimed at unwarranted delay or disrespectful of truth and
accuracy. See Western United Realty, Inc. v. Isaacs, supra.

[16] In determining if an award of attorney fees is warranted and in
assessing the amount of such fees under 13-17-102, the trial court is
required to make findings based on the relevant factors set out in
13-17-103(1), C.R.S. 1997 to permit meaningful appellate review of its
disposition. Also, conclusory statements that a claim is frivolous,
groundless, or vexatious are insufficient for purposes of appellate review
and inadequate to satisfy the statutory requirement of specificity. See In re
Marriage of Aldrich, 945 P.2d 1370 (Colo. 1997).

[17] The record reflects that the court specifically found, with evidentiary
support, that as pursued by plaintiff, this case was abusive of defendant,
brought in bad faith with little effort to determine the validity of the
claim, substantially groundless, frivolous, and vexatious. The court also
adopted the thorough statements of defense attorneys analyzing the factors
set forth in 13-17-103(1) as its findings and then granted attorney fees
based on those findings. We conclude these findings are sufficient, with
evidentiary support, to affirm the award of attorney fees under 13-17-103(1).
The determination by a division of this court in Eason I in its post-opinion
order that the appeal of Eason I was not frivolous precludes our
consideration of an award of attorney fees premised on 13-17-103(1) on appeal
of Eason I.

II.

[18] The Board argues that defendant did not litigate a 1983 claim and is
not, therefore, entitled to an award of attorney fees pursuant to 1988.
Because it may affect defendant's right to recover attorney fees incurred in
the appeal of Eason I, we address the propriety of the trial court's award
under 42 U.S.C. § 1988.

[19] Defendant agrees that the declaratory judgment action was not a 1983
action, but argues that the finding of a due process violation fulfills the
elements of a 1983 claim and therefore supports an award for 1988 attorney
fees. We are not persuaded.

[20] The Board argues that defendant neither pre-trial nor during trial
referred to 42 U.S.C. § 1983, nor requested attorney fees pursuant to 42
U.S.C. § 1988. In his answer, defendant's demand for attorney fees is only
based upon 13-17-101, et seq., and C.R.C.P. 11. However, defendant does refer
to 1983 and 1988 among the "points of law" in his supplemental disclosure
certificate, and specifically raises these sections in his post-trial motion
for attorney fees.

[21] We recognize that under Atchison v. City of Englewood, 180 Colo. 407,
506 P.2d 140 (1973), a party may seek in a subsequent action remedies not
awarded in the declaratory judgment action. However, we conclude that this
subsequent action cannot be a post-trial motion for attorney fees based on a
claim never raised in the action. Rather, Atchison contemplates an action
such as Eason II which fully explores the 1983 claim and determines whether a
right to relief under 1983 has been established.

[22] In his motion for attorney fees, defendant asserts that the trial
court's finding of a due process violation supports a 1988 award of attorney
fees because the finding of a due process violation satisfies the elements of
a 1983 claim. However, defendant ignores the fact that he alleged a due
process violation would occur only if the court were to grant any of the
relief requested by the Board, which the court did not do.

[23] Under 42 U.S.C. § 1988, a court may, in its discretion, award reasonable
attorney fees as part of the award of costs to a prevailing party in an
action to enforce 42 U.S.C. § 1983. Specifically, the statute provides in
pertinent part:

In any action or proceeding to enforce a provision
of sections 1981, 1981a, 1982, 1983, 1985, and
1986 of this title . . . the court, in its
discretion, may allow the prevailing party, other
than the United States, a reasonable attorney's
fee as part of the costs.

[24] In light of this statutory wording, we conclude that the trial court's
findings of "due process violations as a matter of fact" and "as a matter of
law" are an insufficient basis to trigger a 1988 award of fees because 1983,
the predicate for attorney fees under 1988, was not properly raised prior to
raised nor litigated during the declaratory judgment action.

[25] Insofar as it is premised on 13-17-101, et seq., C.R.S. 1997, the order
is affirmed. Insofar as the order awarding attorney fees is premised on 42
U.S.C. § 1988, it is reversed.

[26] JUDGE VOGT concurs.

[27] JUDGE RULAND concurs in part and dissents in part.

[28] JUDGE RULAND concurring in part and dissenting in part.

[29] I concur with the result reached by the majority in Part I of the
opinion. However, I conclude that defendant's claim for attorney fees under
1983 and 1988, 42 U.S.C. was asserted in full compliance with applicable
rules. Therefore, defendant is not precluded from an award of fees for the
defense of the appeal in Board of County Commissioners v. Eason, (Colo. App.
No. 95CA2207, May 15, 1997)(not selected for official publication)(Eason I),
and thus I respectfully dissent from the result reached in Part II of the
opinion.

[30] C.R.C.P. 57(h) specifically provides that either party may seek "further
relief based on a declaratory judgment or decree whenever necessary or
proper." Consistent with the express language of the rule, this provision has
been relied upon previously to assert a claim for fees under 1983 and 1988
subsequent to entry of a declaratory judgment. See Subryan v. Regents of the
University of Colorado, 789 P.2d 472 (Colo. App. 1989). It has been properly
relied upon to assert a post-decree claim for fees under other legal theories
as well. See Agee v. Trustees of the Pension Board, 33 Colo. App. 268, 518
P.2d 301 (1974); see also C.R.C.P. 121, 1-22 (an award of fees based upon a
statute may be requested by motion within 15 days after entry of the
judgment).

[31] Here, there is no contention that defendant's post-trial motion was
either untimely or deficient in pleading a claim for fees under 1983 and
1988. And, as noted by the majority, the determination that the county's
actions constituted a due process violation has been affirmed. Finally, as
the division held in Eason v. Board of County Commissioners, ___ P.2d ___
(Colo. App. No. 96CA1691, December 26, 1997)(Eason II) assertion of a
post-decree damage claim under 1983 is proper under Atchison v. City of
Englewood, 180 Colo. 407, 506 P.2d 140 (Colo. 1973).

[32] Under these circumstances, I conclude that a fee award for the appeal of
Eason I must be remanded to the trial court for its consideration. In my
view, to require the claim for fees to be asserted prior to entry of the
declaratory judgment contravenes the express language of C.R.C.P. 57(h) and
is inconsistent with the analysis and holding in Eason II.

[33] Accordingly, I would remand the case for consideration of an award of
fees pursuant to 1988 for defense of the appeal in Eason I.

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