Mulberry Frontage Metro. Dist. v. Sunstate Equip. Co.

• Docket Number: Court of Appeals No. 22CA0680
• Decision Date: 13 July 2023
• Citation: 537 P.3d 391,2023 COA 66
• Parties: MULBERRY FRONTAGE METROPOLITAN DISTRICT, a Colorado special district and political subdivision of the State of Colorado, Petitioner-Appellee, v. SUNSTATE EQUIPMENT CO., LLC, a Delaware corporation, Respondent-Appellant.
• Court: Colorado Court of Appeals

537 P.3d 391

2023 COA 66

MULBERRY FRONTAGE METROPOLITAN DISTRICT, a Colorado special district and political subdivision of the State of Colorado, Petitioner-Appellee,

v.SUNSTATE EQUIPMENT CO., LLC, a Delaware corporation, Respondent-Appellant.

Court of Appeals No. 22CA0680

Colorado Court of Appeals, Division V.

Announced July 13, 2023

Widlund Law, LLC, Douglas S. Widlund, Centennial, Colorado, for Plaintiff-Appellee

Alderman Bernstein, LLC, Jody Harper Alderman, Amanda A. Bradley, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE GOMEZ

¶ 1 The General Assembly has provided that when a court rejects a condemnation petition on the ground that the petitioner isn't authorized to acquire the subject property, "the property owner who participated in the proceedings" is entitled to recover their reasonable attorney fees and costs.§ 38-1-122(1), C.R.S. 2022.The question in this case is whether this statute extends to lessees who participate in the proceedings.We conclude that it does not.Accordingly, we affirm the trial court's denial of a request by respondent, Sunstate Equipment Co., LLC(the lessee), for attorney fees and costs from plaintiff, Mulberry Frontage Metropolitan District(the district), under the statute.

¶ 2We conclude, however, that the trial court erred by not addressing—and thus implicitly denying without explanation—the lessee's request for attorney fees under section 13-17-102, C.R.S. 2022.Accordingly, we reverse and remand with instructions to make findings on that request.

I.Background

¶ 3 The district filed the underlying condemnation petition against the Niesje J. Van Heusden Revocable Trust (the owner), the lessee, and the Larimer County Treasurer, seeking to condemn real property in Fort Collins for public street improvements.The subject property was part of a larger parcel that the lessee rented under a long-term lease to operate an equipment rental business.The subject property is burdened by a recorded deed of covenant held by the Colorado Department of Transportation(CDOT) prohibiting any construction or improvements in anticipation of a future highway project.The district identified the covenant in its petition but didn't name CDOT as a respondent.

¶ 4 The lessee moved for joinder of CDOT or dismissal of the case for failure to join CDOT.The lessee also requested attorney fees and costs under section 38-1-122(1) —for the entire case if it was dismissed or for just the motion if joinder was ordered.

¶ 5 In an August 2021 order, the court denied the request to dismiss but granted the request for joinder and directed the district to join CDOT to the case.The court also denied the request for attorney fees and costs, reasoning that the lessee is "just a tenant" and "not the property owner" and that section 38-1-122(1)"clearly states that attorney fees shall be awarded ‘to the property owner.’ "

¶ 6 After the district filed an amended petition joining CDOT, the owner and the lessee jointly moved for dismissal on the ground that the proposed project conflicted with CDOT's covenant.They also jointly requested an award of attorney fees and costs under section 38-1-122(1).The lessee specifically asked the court to "reconsider its interpretation of [ section 38-1-122(1) ]" and requested, in the alternative, an award of attorney fees under section 13-17-102.

¶ 7 In a November 10, 2021 order, the court dismissed the amended petition, "award[ed] reasonable attorney fees and costs pursuant to [ section] 38-1-122," and instructed "Respondents" to file related affidavits.(The order had collectively defined the owner and the lessee as the "Moving Respondents.")The court didn't address the lessee's alternative request for attorney fees under section 13-17-102.

¶ 8 Thereafter, the owner and the lessee filed documents detailing the amount of their requested attorney fees and costs.Meanwhile, the district moved for clarification of the court's ruling on the lessee's request for attorney fees.

¶ 9 On April 14, 2022, the court ruled on the district's motion for clarification, stating that it was "reaffirm[ing] that [the lessee] is not entitled to fees in this matter."The court stated that its August 2021 order had found the lessee ineligible for attorney fees and costs under section 38-1-122(1) and its November 2021 order "did not reconsider [that] finding."Although the court acknowledged that "the use of the plural ‘Respondents’ in the November [2021] order may have caused confusion," it concluded that "the record does not demonstrate that [it] reconsidered its prior holding."Again, the court didn't address the lessee's alternative attorney fee request under section 13-17-102.

¶ 10 On April 26, 2022, the lessee filed its notice of appeal.Soon thereafter, the trial court issued an order establishing the amount of attorney fees and costs awardable to the owner.

¶ 11 On appeal, the lessee contends that the trial court erred by denying its request for attorney fees and costs under section 38-1-122(1) and by not addressing its request for attorney fees under section 13-17-102.The district disagrees with both contentions and further contends that we lack jurisdiction over the appeal because the lessee's notice of appeal was untimely.We address each of these contentions in turn, beginning with the district's jurisdictional argument.

II.Appellate Jurisdiction

¶ 12We first reject the district's contention that we lack jurisdiction over this appeal.According to the district, the court's November 10, 2021 order dismissing the condemnation petition constituted a final judgment on the lessee's request for attorney fees and costs.Thus, the district contends, the lessee's notice of appeal, filed over five months later on April 26, 2022, was untimely.We disagree.

¶ 13 Under C.A.R. 4(a), a party in a civil case must file a notice of appeal within forty-nine days after the entry of a final judgment or order, unless the deadline is extended by a timely filed C.R.C.P. 59 motion. Amada Fam. Ltd. P'ship v. Pomeroy , 2021 COA 73, ¶ 73, 494 P.3d 633.A party's failure to file a timely notice of appeal generally deprives this court of jurisdiction to review the merits of the appeal.Id.

¶ 14 Typically, a judgment is final if it disposes of the entire litigation on the merits, leaving nothing for the court to do but execute on the judgment.Grand Cnty. Custom Homebuilding, LLC v. Bell , 148 P.3d 398, 400(Colo. App.2006).Once a court enters a final judgment, the court's earlier orders merge into the judgment and generally become reviewable.Town of Monument v. State , 2018 COA 148, ¶ 6, 467 P.3d 1126, aff'd sub nom.Forest View Co. v. Town of Monument , 2020 CO 52, 464 P.3d 774.¹

¶ 15 However, "the final judgment rule has distinct contours in the context of postjudgment proceedings."AA Wholesale Storage, LLC v. Swinyard , 2021 COA 46, ¶ 10, 488 P.3d 1213.In that context, the underlying action has already concluded with the entry of a final judgment, even as some part of the action remains "live."Id.at ¶ 12.

¶ 16 Divisions of this court have applied a two-part test in determining the finality of postjudgment orders.First, we consider whether the order ends "the particular part of the action in which it is entered," leaving "nothing further for the court pronouncing it to do in order to completely determine the rights of the parties as to that part of the proceeding."Id.at ¶ 13(quotingLuster v. Brinkman , 250 P.3d 664, 667(Colo. App.2010) ).And second, we consider whether the order is "more than a ministerial or administrative determination," such that it "affect[s] rights or create[s] liabilities not previously resolved by the adjudication of the merits."Id.at ¶ 16(quotingLuster , 250 P.3d at 667 ).If both elements are satisfied, we treat the order as final.Seeid.at ¶ 23.

¶ 17 A judgment on the merits is considered final and appealable notwithstanding unresolved issues of attorney fees and costs.L.H.M. Corp., TCD v. Martinez , 2021 CO 78, ¶ 23, 499 P.3d 1050;Laleh v. Johnson , 2016 COA 4, ¶ 50, 405 P.3d 286, aff'd on other grounds , 2017 CO 93, 403 P.3d 207;C.R.C.P. 58(a).Therefore, the unresolved attorney fee and cost issues didn't prevent the November 10, 2021 order from serving as a final judgment on the merits.²

¶ 18 Had the issues concerning the lessee's request for attorney fees and costs been fully and finally resolved as of the time the judgment on the merits became final on November 10, 2021, they may well have merged into that judgment and become appealable at that time.SeeTown of Monument , ¶ 6.But those issues were not fully and finally resolved as of that time.They only later became final and, thus, they were separately appealable.SeeUSIC Locating Servs. LLC v. Project Res. Grp. Inc. , 2023 COA 33, ¶ 34, 532 P.3d 770.

¶ 19 Although the trial court had denied the lessee's earlier request for attorney fees and costs under section 38-1-122(1), the November 10, 2021 order seemingly changed course, suggesting that the lessee could recover its fees and costs and directing it (as one of the "Respondents") to file documents supporting its requested fees and costs.Cf.Blecker v. Kofoed , 672 P.2d 526, 528(Colo.1983)("[A]n appellate court should ... construe an ambiguous order to arrive at a result that is as fair and reasonable as possible rather than one that is harsh and unreasonable.").

¶ 20 Moreover, nothing in the November 10, 2021 order could be read as even implicitly denying the lessee's request for attorney fees under section 13-17-102.The order said nothing of any attorney fee request being denied.And the previous order denying the lessee's earlier request for fees and costs was entered before the lessee had made any request under section 13-17-102.

¶ 21 Thus, it is clear that the attorney fee and cost issues were not entirely resolved as of November 10, 2021.Indeed, there were later pleadings and rulings on those very issues.

¶ 22 Applying Colorado's...