BLY v. STORY

Decision Date08 November 2010
Docket NumberNo. 09SC189.,09SC189.
Citation241 P.3d 529
PartiesRichard W. BLY; Patsy A. Bly; and Bank of the West, f/n/a/ Community First National Bank, f/n/a The Bank, N.A., Petitioners v. Tamara L. STORY, Respondent.
CourtColorado Supreme Court

OPINION TEXT STARTS HERE

Duncan, Ostrander & Dingess, P.C., Robert R. Duncan, James Birch, Denver, Colorado, Attorneys for Petitioners.

Burns, Figa & Will, P.C., Geoffrey P. Anderson, Greenwood Village, Colorado, Attorneys for Respondent.

Justice HOBBS delivered the Opinion of the Court.

In this private condemnation action for a non-exclusive access easement across an existing driveway, we are charged with determining what level of specificity a petition for condemnation must contain and whether the trial court erred in excluding valuation evidence based on a particular appraisal method. We review the court of appeals' decision in Story v. Bly, 217 P.3d 872 (Colo.App.2008). 1 The trial court granted Story's petition for condemnation, and a jury awarded the Blys $3,300 for the easement and $9,200 for damages to the residue. Id. at 876. The court of appeals affirmed. Id. at 883.

Petitioners Richard and Patsy Bly (Condemnees) assert that the trial court erred in denying their motion to dismiss respondent Tamara Story's (Condemnor) petition for private condemnation because the petition failed to provide a legal description of the easement sought and to specify the particular use for which Condemnor intends to obtain the easement. We disagree.

Condemnees also assert that the trial court abused its discretion by excluding evidence of the fair market value of the easement based on the cost of constructing the driveway improvement. Again, we disagree.

The plain language of section 38-1-102(1), C.R.S. (2010), requires that a petition for condemnation provide a description of the property to be condemned and the purpose for which the property is to be condemned; it does not require the petitioner to provide a metes and bounds legal description of the property or to specify the particular uses for which the property is to be condemned. We hold that Condemnor's petition contained an adequate description of the location of the easement over the existing driveway and of the easement's purpose as a private way of necessity. Accordingly, we affirm the court of appeals' judgment finding that the trial court properly denied Condemnees' motion to dismiss the petition.

We also hold that, although valuation evidence based on the cost of construction method of appraisal was admissible, the trial court's exclusion of that evidence was not an abuse of discretion. Thus, we affirm the court of appeals' judgment finding that the trial court did not abuse its discretion in excluding this valuation evidence.

I.

Condemnor owns a vacant, forty-five-acre, landlocked parcel in the mountains of Jefferson County, west of Denver. The parcel has no public or private means of access. After unsuccessfully attempting to negotiate purchase of an access easement to use an existing driveway across a neighboring eighty-acre parcel owned by Condemnees, Condemnor brought this private condemnation action to obtain the easement. 2

The driveway begins at a county road and passes through Condemnees' eighty-acre parcel. Condemnees, their son, and his family use the driveway to access their residence. Condemnees' caretaker also uses the driveway to access his residence. The driveway then crosses through Condemnor's parcel and terminates at another neighboring property located on the opposite side of Condemnor's parcel. Those neighboring landowners use the driveway to access their property as well. The driveway pre-existed Condemnees' 1984 purchase of the eighty-acre parcel.

Condemnor brought this private condemnation action pursuant to article II, section 14 of the Colorado Constitution and section 38-1-102, seeking “to condemn a 20-foot wide easement over and across an existing dirt access road ... [to] provide[ ] physical access” to her landlocked property. Petition for Private Condemnation, ¶ 9. The petition asserted that Condemnor “requires immediate possession of the [driveway] in order to access [her p]roperty, and to permit the use and enjoyment of that property.” Id. ¶ 16. The petition described the easement sought as a “private way of necessity,” id. ¶ 12, but it did not provide any additional description of Condemnor's intended uses for the easement. Nor did the petition provide a metes and bounds legal description of the easement's location. It did, however, provide legal descriptions of both Condemnor's and Condemnees' parcels and attached a U.S. Geological Survey map depicting the driveway in relation to the two parcels. Condemnor subsequently provided to the trial court a metes and bounds legal description of the easement.

Condemnees moved to dismiss the petition on the grounds that it failed to provide adequate descriptions of the location of the easement sought and of the purpose, or intended uses, for the easement. At both her deposition and the motion hearing, Condemnor clarified her intended uses as constructing, building, maintaining, and accessing one single-family home. She did not amend the petition.

The trial court denied Condemnees' motion to dismiss, finding the petition adequate. The trial court determined that Condemnees were not confused as to the location of the easement and that Condemnor's subsequent filing of a legal description was sufficient to allow the court to enter its final order of condemnation. The trial court also found adequate Condemnor's description of the purpose of the easement as a private way of necessity, particularly given her clarifying testimony that she seeks access only for one single-family home and the fact that Condemnees were not deceived by her failure to specify her intended uses.

In the same order, the trial court granted Condemnor's petition on its merits. The trial court condemned the access easement in perpetuity “for the use required for [Condemnor] to build, construct, reside in, and maintain one (1) single-family residence on [her p]roperty.” The order provided a metes and bounds legal description of the easement. The trial court also granted Condemnor immediate possession of the easement upon payment of a $1,000 bond.

In preparation for a jury trial to determine just compensation for the partial taking, Condemnor filed a motion in limine attempting to exclude Condemnees' expert testimony regarding, inter alia, the contributory value of the driveway improvement, based on the cost of construction appraisal method. The expert was prepared to testify as to the cost necessary to construct the same driveway, were the driveway not already in existence: in other words, a replacement driveway. Although it did not explicitly rule on the motion in limine, the trial court excluded the testimony at trial, determining that the cost of constructing the driveway was not relevant to the market value of the non-exclusive access easement over the existing driveway. Consequently, the trial court allowed valuation evidence based only on the comparable sales method of appraisal. 3

The jury awarded Condemnees $3,300 for the easement and $9,200 in damages to the residue of the property. 4 The trial court awarded Condemnees approximately one-half of their requested expert witness fee costs.

Condemnees appealed. The court of appeals affirmed the trial court's denial of Condemnees' motion to dismiss and found no abuse of discretion with respect to the trial court's ruling excluding valuation evidence based on the cost of constructing the driveway and its award of only half the requested expert witness fee costs. Story v. Bly, 217 P.3d 872 (Colo.App.2008). We granted Condemnees' petition for writ of certiorari on the motion to dismiss and valuation evidence issues. 5

II.

The plain language of section 38-1-102(1), C.R.S. (2010), requires that a petition for condemnation provide a description of the property to be condemned and the purpose for which the property is to be condemned; it does not require the petitioner to provide a metes and bounds legal description of the property or to specify the particular uses for which the property is to be condemned. We hold that Condemnor's petition contained an adequate description of the location of the easement over the existing driveway and of the easement's purpose as a private way of necessity. Accordingly, we affirm the court of appeals' judgment finding that the trial court properly denied Condemnees' motion to dismiss the petition.

We also hold that, although valuation evidence based on the cost of construction method of appraisal was admissible, the trial court's exclusion of that evidence was not an abuse of discretion. Thus, we affirm the court of appeals' judgment finding that the trial court did not abuse its discretion in excluding this valuation evidence.

A. Petition for Condemnation
1. Standard of Review

This appeal arises in the context of the trial court's denial of Condemnees' motion to dismiss Condemnor's petition for private condemnation. The parties dispute whether the motion should be treated as a C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim. Given that the Colorado Rules of Civil Procedure apply to eminent domain proceedings, Aldrich v. Dist. Ct., 714 P.2d 1321, 1323 (Colo.1986), and that Colorado's eminent domain statutes do not provide an alternative procedure for challenging a petition for condemnation, we treat this appeal as review of a ruling on a C.R.C.P. 12(b)(5) motion.

[1] [2] [3] We view with disfavor a C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim. Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1099 (Colo.1995). We review a ruling on a C.R.C.P. 12(b)(5) motion de novo, applying the same standards as the trial court. Id.; Negron v. Golder, 111 P.3d 538, 542 (Colo.App.2004). Accepting all allegations in the complaint as...

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