Beaver Creek Prop. Owners Ass'n, Inc. v. Bachelor Gulch Metro. Dist.

• Citation: 271 P.3d 578
• Decision Date: 08 December 2011
• Docket Number: No. 10CA1024.,10CA1024.
• Parties: BEAVER CREEK PROPERTY OWNERS ASSOCIATION, INC.; Strawberry Park at Beaver Creek Owners Association, Inc.; Milledge A. Hart, III; Jack Bergman; and John Does 2 and 3 (Owners of Lots in Strawberry Park), Plaintiffs–Appellees, v. BACHELOR GULCH METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado, Defendant–Appellant.
• Court: Court of Appeals of Colorado

271 P.3d 578

BEAVER CREEK PROPERTY OWNERS ASSOCIATION, INC.; Strawberry Park at Beaver Creek Owners Association, Inc.; Milledge A. Hart, III; Jack Bergman; and John Does 2 and 3 (Owners of Lots in Strawberry Park), Plaintiffs–Appellees,

v.BACHELOR GULCH METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado, Defendant–Appellant.

No. 10CA1024.

Colorado Court of Appeals, Div. IV.

Dec. 8, 2011.

HindmanSanchez P.C., William H. Short, Molly C. Lucas, Arvada, Colorado; Johnson & Repucci LLP, Lew M. Harstead, Boulder, Colorado, for Plaintiff–Appellant Beaver Creek Property Owners Association, Inc.

Holland & Hart LLP, Timothy M. Rastello, Stephen G. Masciocchi, Christina F. Gomez, Boulder, Colorado, for Plaintiffs–Appellants Strawberry Park at Beaver Creek Owners Association, Inc., Milledge A. Hart, III, Jack Bergman, and John Does 2 and 3 (Owners of Lots in Strawberry Park).

Davis Graham & Stubbs LLP, Andrew M. Low, Kyle W. Brenton, Denver, Colorado, for Defendant–Appellant.Mary G. Zuchegno, Ann A. Terry, Denver, Colorado, for Amicus Curiae Special District Association of Colorado.Geoffrey T. Wilson, Denver, Colorado, for Amicus Curiae Colorado Municipal League.Light, Kelly & Dawes, P.C., Samuel J. Light, Denver, Colorado, for Amicus Curiae Colorado Counties Property and Liability Pool.Kathleen A. Sullivan, Denver, Colorado, for Amicus Curiae Colorado Association of School Boards.Opinion by Judge GABRIEL.

Defendant, Bachelor Gulch Metropolitan District (Bachelor Gulch), appeals the district court's orders awarding attorney fees and costs under 42 U.S.C. § 1988 to two groups of plaintiffs (plaintiffs), namely, Beaver Creek Property Owners Association, Inc. (Beaver Creek) and Strawberry Park at Beaver Creek Property Owners Association, Inc. and certain of its owners (collectively, Strawberry Park). We conclude that the district court erred in awarding attorney fees to Beaver Creek in connection with federal constitutional claims that Beaver Creek added after the district court ruled in its favor on the principal substantive issue in the case. We further conclude that the district court did not err in finding that Strawberry Park's constitutional claims were substantial enough to warrant an award of attorney fees and costs. Accordingly, we reverse the orders as to Beaver Creek, affirm as to Strawberry Park, and remand for a determination of the amount of reasonable appellate fees to be awarded to Strawberry Park.

I. Background

When Vail/Arrowhead, Inc. (Vail) began developing the Strawberry Park subdivision, it agreed not to route any of its construction traffic through the Beaver Creek subdivision. Instead, Vail sent all of its construction traffic over a road in the neighboring community of Bachelor Gulch.

As pertinent here, in April 2006, Bachelor Gulch enacted a road regulation that effectively banned Strawberry Park subdivision construction traffic from its roads. Plaintiffs and others then sued Bachelor Gulch, asserting various state law claims and seeking a permanent injunction and a declaration that the regulation was invalid and unenforceable on state law grounds. Vail and Strawberry Park also brought federal constitutional claims under 42 U.S.C. § 1983, with Vail alleging that the regulation violated its rights to equal protection and to travel and Strawberry Park alleging that the regulation violated its equal protection and substantive due process rights.

In February 2007, plaintiffs moved for partial summary judgment on their declaratory judgment claims. Vail did not file its own motion for partial summary judgment, but filed a “Final Statement of Position,” which supported the grant of summary judgment declaring that Bachelor Gulch roads were open to Strawberry Park construction traffic.

The court granted plaintiffs' motion, holding that the regulation was invalid on state law grounds. Notably, in its order, the court twice observed that in ruling as it did, it was avoiding potential constitutional questions. Based on this ruling, the court ultimately granted a permanent injunction prohibiting Bachelor Gulch from enforcing the traffic regulation.

In October 2007, after the court had held that the traffic regulation was invalid and unenforceable but before the court entered the permanent injunction, Beaver Creek moved to amend its original pleadings to add, among other claims, a section 1983 claim challenging the traffic regulation on substantive due process and equal protection grounds. The district court granted Beaver Creek's motion to amend, although it later dismissed Beaver Creek's (and Strawberry Park's) constitutional claims as moot because, among other things, it had already invalidated the regulation on state law grounds.

Thereafter, Vail, Beaver Creek, and Strawberry Park moved for awards of attorney fees and costs under 42 U.S.C. § 1988. The court granted the motions and awarded fees and costs totaling $954,221.

Bachelor Gulch appealed these awards but later settled with Vail. Accordingly, only the awards of fees and costs to Beaver Creek and Strawberry Park are now before us.

II. Applicable Law

Section 1988(b) provides, in pertinent part, “In any action or proceeding to enforce a provision of [section 1983 or various other statutes], 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....” In determining whether fees are awardable under this statute in connection with a section 1983 claim, courts look to the substance of the underlying federal or constitutional claim, rather than how it might be labeled in the complaint. See, e.g., Americans United for Separation of Church & State v. School Dist., 835 F.2d 627, 631, 633–34 (6th Cir.1987) (in a case in which the plaintiff had pled a claim under section 1983 without specifically relying on that statute, the court awarded fees under section 1988 because (1) section 1988 is concerned with the substance of a prevailing party's action, rather than the form in which it is presented, and (2) “[t]he mere failure to plead or argue reliance on § 1983 is not fatal to a claim for attorney's fees if the pleadings and evidence do present a substantial Fourteenth Amendment claim for which § 1983 provides a remedy”); Solomon v. City of Gainesville, 796 F.2d 1464, 1466 (11th Cir.1986) (holding that a plaintiff who initially brought a civil rights claim but waived that claim and then prevailed on a claim not enumerated in section 1988 could recover attorney fees under section 1988, because section 1983 provided a remedy, even though relief was awarded on another ground); Int'l Soc. for Krishna Consciousness, Inc. v. Colo. State Fair & Indus. Exposition Comm'n, 673 P.2d 368, 374 (Colo.1983) ( “For the purpose of recouping attorney's fees under section 1988, express reference to conduct as violative of section 1983 is not required; section 1988 is applicable to any action for which section 1983 provides a remedy. We conclude that the complaint here states a claim for relief under section 1983.”) (citations omitted); Mahaney v. City of Englewood, 226 P.3d 1214, 1221 (Colo.App.2009) (same).

In addition, when a party joins state law and constitutional claims but prevails only on the state law claims, a court may still award attorney fees under section 1988 if the constitutional claim was “substantial” and the state law claim arose from a common nucleus of operative facts. See Maher v. Gagne, 448 U.S. 122, 132 & n. 15, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980); Deighton v. City Council, 3 P.3d 488, 490 (Colo.App.2000); see also H.R.Rep. No. 94–1558, at 4 n. 7 (1976).

The legislative history of section 1988 makes clear that a constitutional claim is “substantial” if it satisfies the substantiality test that the Supreme Court outlined in Hagans v. Lavine, 415 U.S. 528, 537, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). See H.R.Rep. No. 94–1558, at 4 n. 7; accord Plott v. Griffiths, 938 F.2d 164, 167–68 (10th Cir.1991). Thus, the House of Representatives report on an amendment to section 1988 stated:

To the extent a plaintiff joins a claim under one of the statutes enumerated in [section 1988] with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. Morales v. Haines, 486 F.2d 880 (7th Cir.1973). In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the non-constitutional claim is dispositive. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). In such cases, if the claim for which fees may be awarded meets the “substantiality” test, see Hagans v. Lavine, supra; United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), attorney's fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a “common nucleus of operative fact.” United Mine Workers v. Gibbs, supra, at 725, 86 S.Ct. 1130.

H.R.Rep. No. 94–1558, at 4 n. 7.

In Hagans, 415 U.S. at 537, 94 S.Ct. 1372, the Supreme Court held that a claim is insubstantial if it is “essentially fictitious,” “obviously frivolous,” or “obviously without merit.” The Court added:

The limiting words “wholly” and “obviously” have cogent legal significance.... [T]hose words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial.... A claim is insubstantial only if “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions [sic] sought to be raised can be the...