On Behalf Of All Others Similarly Situated v. The City

• Citation: 238 P.3d 659
• Decision Date: 13 September 2010
• Docket Number: No. 09SC598.,09SC598.
• Parties: Terri CRANDALL and Joann Hubbard, individually and on behalf of all others similarly situated, Petitioners v. The CITY and County OF DENVER, Colorado, d/b/a The Denver International Airport, a Colorado political subdivision, Respondent.
• Court: Supreme Court of Colorado

238 P.3d 659

Terri CRANDALL and Joann Hubbard, individually and on behalf of all others similarly situated, Petitioners

v.The CITY and County OF DENVER, Colorado, d/b/a The Denver International Airport, a Colorado political subdivision, Respondent.

No. 09SC598.

Supreme Court of Colorado,En Banc.

Sept. 13, 2010.

Fognani & Faught, PLLC, John D. Fognani, Fritz W. Ganz, Tiffany L. Grant, Denver, Colorado, for Petitioners.

Hall & Evans, L.L.C., Chris A. Mattison, Andrew D. Ringel, Andrew J. Carafelli, Denver, Colorado, for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

This is the third in a series of appeals involving a class action lawsuit brought by individuals against the City and County of Denver (“Denver”) for harm allegedly caused by environmental contamination in Concourse B of Denver International Airport. The case has now been dismissed for lack of subject matter jurisdiction, and the present dispute concerns the award of costs and attorney fees to Denver pursuant to section 13-17-201, C.R.S. (2009), which awards attorney fees to a defendant after pre-trial dismissal of tort claims pursuant to C.R.C.P. 12(b).

On appeal, the plaintiffs argued that the award was not reduced enough to account for work by Denver's attorneys that would be useful in separate but related litigation between the parties in federal court. On cross-appeal, Denver challenged the district court's conclusion that the award should be reduced at all on this basis. In an unpublished decision, the court of appeals concluded that the district court erred in reducing the award and reversed.

We granted certiorari to review the court of appeals' decision. We hold that section 13-17-201 and its companion statute governing costs, section 13-16-113(2), C.R.S. (2009), are mandatory and do not permit the reduction proposed by the plaintiffs for work that may be useful in companion litigation. We therefore affirm.

II. Facts and Procedural History

In this personal injury action filed pursuant to the Colorado Governmental Immunity Act (the “CGIA”), the plaintiffs sought damages and injunctive relief against Denver on behalf of themselves and a class of fellow employees, alleging injuries suffered from environmental problems occurring at Concourse B of Denver International Airport.

This is the second time we have reviewed a decision by the court of appeals in this long-running dispute. The first round of appeals addressed the trial court's denial of Denver's motion to dismiss, which was based on several grounds, including lack of subject matter jurisdiction. See City & County of Denver v. Crandall, 161 P.3d 627, 629 (Colo.2007) (“ Crandall II ”). Denver appealed, and the court of appeals affirmed. Crandall v. City & County of Denver, 143 P.3d 1105, 1110 (Colo.App.2006) (“ Crandall I ”). We reversed on the ground that the plaintiffs had not timely filed a notice of claim within the CGIA's 180-day notice provision, and therefore dismissal was required pursuant to C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction. Crandall II, 161 P.3d at 629. We thus remanded with directions to return the case for dismissal of the action. Id. at 635.

While the first appeal was still pending, the plaintiffs filed a second, related federal lawsuit against Denver for injunctive relief pursuant to the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901-7000 (2006). See Crandall v. City & County of Denver, 594 F.3d 1231 (10th Cir.2010), petition for cert. filed, 79 U.S.L.W. 3062 (U.S. July 12, 2010) (No. 10-84). The Tenth Circuit has just recently affirmed the federal district court's denial of the plaintiffs' request for injunctive relief, thus ending the plaintiffs' RCRA suit against Denver. Id.

Following the first appeal and the subsequent dismissal of this state court action with prejudice, the plaintiffs filed a motion for post-judgment relief (1) contending that their claim for injunctive relief was not subject to dismissal and (2) attempting to revive the action by permitting the intervention of a new class member. The trial court ruled against the plaintiffs, leading to an unsuccessful C.A.R. 21 petition and to a second appeal in this case, which the plaintiffs lost, but for which they did not seek certiorari review.

Contemporaneously with the plaintiffs' post-judgment motion, Denver, pursuant to section 13-17-201, sought to recover $162,861.85 in attorney fees incurred in defending the action, bringing the first appeal, and litigating the plaintiffs' post-judgment motions. The City also sought $10,465.86 in costs pursuant to sections 13-16-105 and 13-16-122, C.R.S. (2009), and C.R.C.P. 54(d).

In its order for costs and attorney fees, the district court concluded that Denver was not entitled to recover fees and costs for work product that may be useful in defending against the plaintiffs' federal RCRA action. However, Denver had not separated out these amounts in its presentation of fees and costs and did not provide any alternative figures to those proposed by the plaintiffs. Accordingly, the court adopted in part the plaintiffs' suggestion and reduced the final award by $35,543.50 in attorney fees which were attributed to gathering and reviewing information concerning DIA generally and concerning complaints of environmental problems at Concourse B specifically. The district court thus awarded a final judgment in favor of Denver of $137,784.21. The district court subsequently denied the plaintiffs' motion for post-judgment relief seeking greater reductions in the award on the basis that all of the additional paralegal time and all associated costs also overlapped with the RCRA suit.

The plaintiffs then filed this third appeal challenging the district court's award of fees and costs. Relevant here, the plaintiffs argued that (1) the district court should have reduced the award by the full amount the plaintiffs had proposed and (2) by not accepting the plaintiffs' unrebutted calculations, the district court improperly shifted the burden of proof of reasonable fees and costs to the plaintiffs. Denver cross-appealed, contending that the trial court erred by reducing the award at all based on work useful to the RCRA suit.

The court of appeals affirmed the judgment of the district court to the extent that it awarded fees and costs but reversed it with respect to the reduction in fees. Relevant to our review, the court concluded that the district court erred in subtracting from the award fees for work that would be useful in the RCRA litigation. Because it reached this conclusion, the court of appeals did not reach the second issue presented here of whether the trial court improperly shifted the burden of proof regarding fees to the plaintiffs. The plaintiffs petitioned this court for review, and we granted certiorari. ¹

III. Standard of Review

Whether a statute mandates an award of costs or attorney fees is a question of statutory interpretation and is thus a question of law we review de novo. See Smith v. Executive Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.2010); Adams v. Farmers Ins. Group, 983 P.2d 797, 801 (Colo.1999) (reviewing de novo the construction of an attorney fee statute). However, we review the reasonableness of the amount of such awards for abuse of discretion. See Spring Creek Ranchers Ass'n v. McNichols, 165 P.3d 244, 246 (Colo.2007) (addressing mandatory attorney fees under section 13-17-102(4), C.R.S. (2006), for which section 13-17-103, C.R.S. (2006), grants the court discretion in determining reasonableness); Catlin v. Tormey Bewley Corp., 219 P.3d 407, 415 (Colo.App.2009) (addressing mandatory costs under section 13-17-202, C.R.S. (2008)).

IV. Analysis

A. Attorney Fees and Costs for Work That May Be Useful in Other Litigation

The plaintiffs ask this court to hold that an award of attorney fees and costs to a defendant under section 13-17-201 should be reduced to exclude all attorney fees and costs incurred by the defendant for work that may also be useful in companion or overlapping matters. Skipping over any review of the express statutory language, the plaintiffs argue policy and analogize to fee awards granted as a condition of voluntary dismissal under C.R.C.P. 41(a)(2), a context in which courts do reduce awards to exclude work with continuing usefulness.

Denver disagrees with the plaintiffs, arguing that section 13-17-201 cannot be analogized to C.R.C.P. 41(a)(2) because the two provisions serve distinct purposes. Additionally, Denver contends that the express language of section 13-17-201 makes mandatory awards for attorney fees.

Because we hold that section 13-17-201 and its companion cost statute, section 13-16-113(2), mandate awards of attorney fees and costs, we reject the plaintiffs' argument that the trial court must exclude fees and costs for work that may be useful in companion litigation.

To review properly the plaintiffs' assertions, we employ the traditional rules of statutory construction in order to ascertain and give effect to the intent of the General Assembly. We must first look to the express statutory language at issue, “giving words and phrases their commonly accepted and understood meaning.” Colo. Dep't of Revenue v. Garner, 66 P.3d 106, 109 (Colo.2003); Adams v. Farmers Ins. Group, 983 P.2d 797, 801 (Colo.1999). If the language is clear and unambiguous, our analysis is at an end. Smith, 230 P.3d at 1189. It is only if we find that language ambiguous do we then look beyond the express statutory language for other evidence of legislative intent and purpose, such as legislative history or other rules of statutory construction. See id. However, where “a literal interpretation of the statute ... leads to an absurd result,” the intent of the legislature will prevail. AviComm, Inc. v. Colo. Public Utils. Comm'n, 955 P.2d 1023, 1031 (Colo.1998).

The parties have briefed and argued this case solely with respect to section...