E-470 Pub. Highway Auth. v. Kortum Inv. Co., No. 04CA1262.

• Decision Date: 11 August 2005
• Docket Number: No. 04CA1262.
• Citation: 121 P.3d 331
• Parties: E-470 PUBLIC HIGHWAY AUTHORITY, Plaintiff-Appellee, v. KORTUM INVESTMENT COMPANY, LLLP and Patricia A. Castrodale, Defendants-Appellants.
• Court: Colorado Supreme Court

121 P.3d 331

E-470 PUBLIC HIGHWAY AUTHORITY, Plaintiff-Appellee, v. KORTUM INVESTMENT COMPANY, LLLP and Patricia A. Castrodale, Defendants-Appellants.

No. 04CA1262.

Colorado Court of Appeals, Div. V.

August 11, 2005.

Duncan, Ostrander & Dingess, P.C., Robert R. Duncan, Donald M. Ostrander, James Birch, T. Daniel Platt, Denver, Colorado, for Plaintiff-Appellee.

Opperman & Schell, P.C., William M. Schell, Julie A. Rech, Denver, Colorado, for Defendants-Appellants.

DAILEY, J.

In this eminent domain proceeding, respondents, Kortum Investment Company, LLLP and Patricia A. Castrodale (landowners), appeal the trial court's order awarding them only part of the attorney fees they requested from petitioner, E-470 Public Highway Authority (E-470). The issue on appeal is whether landowners were entitled, under § 43-4-506(1)(h)(II)(B), C.R.S.2004, to attorney fees incurred after they rejected a written offer that was tendered by E-470 following the commencement of condemnation proceedings. Because we conclude that they were so entitled, we vacate the trial court's order and remand with directions.

Section 43-4-506(1)(h)(II)(B) states, in pertinent part:

In connection with proceedings for the authority's acquisition or condemnation of property ... the court shall award the owner all of such owner's reasonable attorney fees ... where the award by the court in such 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.

In this case, E-470 sought to acquire rights in 19.8121 acres of landowners' property for use in connection with the E-470 public highway project.

Initially, E-470 sought fee title to 14.156 of the acres and only a permanent multi-use easement with respect to the remaining 5.6561 acres. Based on its appraisal of fee property at $5,000 per acre and easement property at $2,500 per acre, E-470 calculated the property's value to be $84,920. E-470 tendered to landowners a final written offer 20% higher than that amount, equaling $101,880, which landowners rejected. E-470 then filed its petition for condemnation.

Among other things, landowners claimed that E-470's multi-use easement (for such things as drainage sloping, ditches, oil and gas facilities, access for reasons deemed necessary by E-470, and a public trail of paved asphalt for pedestrians, bicycle, horses, and other unmotorized transportation) of the 5.6561 acres was so inclusive as to constitute, in reality, a fee taking. Eventually, landowners gave E-470 their appraisal valuing the property at $342,200, or $16,900 per acre.

During negotiations and after receiving landowners' appraisal, E-470 offered to purchase the entire property in fee, first for $217,943, then for $257,557. Landowners rejected both offers.

A month and a half before trial, E-470 moved and was permitted to amend its petition to acquire the entire property in fee. This amendment was made with landowners' consent and "[i]n response to [landowners] concerns regarding the all-inclusive nature of the multi-use easement." Three days after filing its amended petition, E-470 tendered to landowners a "new last written offer" of $237,745 for the property.

The landowners rejected E-470's "new last written offer", following a trial, the property was determined to be worth $247,653.

Landowners requested an award of all fees incurred in connection with the condemnation proceedings, totaling $72,360.25. They based their request upon § 43-4-506(1)(h)(II)(B), because the property's value exceeded 130% of the last written offer tendered before E-470 filed its petition for condemnation (that is, the offer for $101,880). E-470, however, asserted that landowners were not entitled to any fees, inasmuch as the value of the property did not equal or exceed 130% of the new last written offer tendered after the filing of the amended petition in condemnation (that is, the offer for $237,745).

The trial court awarded landowners attorney fees incurred prior to E-470's new last written offer, amounting to $33,009. But relying on E-470 Public Highway Authority v. Wagner, 77 P.3d 902 (Colo.App.2003)(Wagner), the court refused to award them any fees incurred after that offer.

On appeal, landowners contend that the trial court misapplied the plain language of the statute. We agree.

I. Standard of Review

The interpretation of a statute is a question of law. See Yacht Club II Homeowners Ass'n v. A.C. Excavating, 94 P.3d 1177, 1179 (Colo.App.2003), aff'd, 114 P.3d 862 (Colo.2005). In construing a statute, we adopt the construction that best gives effect to the intent of the legislature. Cherry Creek Gun Club, Inc. v. Huddleston, 119 P.3d 592, 2005 WL 1645789 (Colo.App. No. 04CA1009, July 14, 2005).

In ascertaining legislative intent, we look first to the language employed in the statute. In re Marriage of Dale, 87 P.3d 219, 223 (Colo.App.2003). We give effect to every word and do not adopt a construction that renders any term superfluous. Slack v. Farmers Ins. Exch., 5 P.3d 280, 284 (Colo.2000); see Hendricks v. People, 10 P.3d 1231, 1238 (Colo.2000)(quoting City & County of Denver v. Gallegos, 916 P.2d 509, 512 (Colo.1996): "The legislative choice of language may be concluded to be a deliberate one calculated to obtain the result dictated by the plain meaning of the words."). Thus, we do not read into a statute an exception that its plain language does not suggest, warrant, or mandate. Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 35 (Colo.2000).

If the meaning of a statute is clear and unambiguous, we apply the statute as written, see Slack v. Farmers Ins. Exch., supra, unless to do so would lead to an absurd result. Showpiece Homes Corp. v. Assurance Co., 38 P.3d 47, 51 (Colo.2001).

II. Interpretation of § 43-4-506(1)(h)(II)(B)

Section 43-4-506(1)(h)(II)(B) requires an award of all the landowner's reasonable attorney fees when the "final value of the property as determined by the court ... 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" (emphasis added).

E-470 argues that, under the statute as interpreted in Wagner, it was entitled to present a new last written offer in connection with the filing of its amended petition and thus, the pertinent offer in this case was the one for $237,745. We are not persuaded.

The statute mandates that, in assessing a landowner's right to attorney fees, a court looks only to the last written offer "prior to the filing" of "the condemnation action."

As used in this context, the common and ordinary meaning of the term "action" is "lawsuit." See In re CGE Shattuck LLC, 272 B.R. 514, 518 (Bankr.D.N.H.2001). When this meaning is applied to § 43-4-506(1)(h)(II)(B), it becomes clear that the offer must be given before the initiation of the condemnation lawsuit. Because the filing of an amended petition does not result in the filing of a new or different "action"or "lawsuit" (but only in the broadening or narrowing of an existing "action"or "lawsuit"), offers based upon an amended petition do not qualify under the statute as being "prior to the filing of the condemnation action."

Had the General Assembly intended otherwise, it could have used language to that effect. Cf. § 13-17-202(1), C.R.S.2004 (tying cost awards to a party's acceptance or rejection of a settlement offer made "at any time more than fourteen days before the commencement of the trial"); § 38-1-121(6), C.R.S.2004 (requiring condemning authority, where negotiations have failed to reach agreement on fair market value of property, to furnish "a written final offer"to landowners "prior to proceeding to trial on the issue of valuation"); Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353, 360 (Colo.2003)(legislature's use of term "fair value" rather than "fair market value" intentional, in light of use of term "fair market value" in other places). But by explicitly linking the fees award to the time when the condemnation action was initiated, the General Assembly provided the parties (and particularly condemning authorities) an incentive for settling disputes before litigation ever begins. See Rath v. Haycock, 137 Or.App. 456, 905 P.2d 854, 858 (1995)(construing phrase "commencement of the action" in attorney fees statute, designed to encourage settlements, as referencing only filing of initial complaint and not amended complaint).

Nor does the decision of another division of this court in Wagner compel a different result.

In Wagner, the condemning authority filed a condemnation action initially seeking to obtain 39 acres of private property for public use. Two months before trial, the condemning authority amended its petition to decrease the amount of property sought to 29 acres. The condemning...