Wilcox v. Clark
| Decision Date | 24 November 2000 |
| Docket Number | 99CA0994 |
| Parties | John Wilcox, Plaintiff-Appellant, v. C. M. Clark, Defendant-Appellee.COLORADO COURT OF APPEALS |
| Court | Colorado Court of Appeals |
Appeal from the District Court of Pitkin County
Robert A. Francis, P.C., Robert A. Francis, Aspen, Colorado, for Plaintiff-Appellant
Boyd & Bazil, LLP, James B. Boyd, Aspen Colorado, for Defendant-Appellee
ORDER REVERSED AND CAUSE REMANDED WITH DIRECTIONS
Opinion by JUDGE ROY
In this forcible entry and detainer action (FED action) brought pursuant to 13-40-101, et seq., C.R.S. 2000, plaintiff, John Wilcox (landlord), appeals the trial court's denial of his request for attorney fees. We reverse and remand for further proceedings consistent with this opinion.
In 1978, defendant, C. M. Clark (tenant), constructed a house and a detached two-story garage incorporating a small apartment on a single-family residential lot in Aspen. The City of Aspen issued a building permit for the garage, but the permit did not authorize the construction of the apartment.
In 1982, tenant sold the property but leased the garage and apartment for an extended period. In 1995, the then owner of the property learned that the apartment violated the city ordinances and was, therefore, illegal. That owner subsequently sold the property to the landlord subject to the lease.
During an inquiry into the validity of the lease, landlord was advised by the city that the apartment was illegal and that he should take steps to remedy the situation. Landlord then commenced this forcible entry and detainer action in the county court alleging that if there was a lease it was illegal and void and, in the alternative, that tenant had breached the lease. Landlord requested possession and damages, including costs, interest, and attorney fees.
Landlord obtained service by posting a notice to quit on the garage/apartment. Tenant did not appear and a default judgment was entered awarding possession of the garage/apartment to landlord. When the personal property stored in the garage was being removed, the landlord discovered it belonged to an attorney who then represented the tenant.
Landlord contacted the attorney, who moved to set aside the default, for stay of execution, and filed a counterclaim for damages exceeding the county court jurisdiction. The matter was removed to the district court, which set aside the default judgment because of inadequate service of process.
A six-day jury trial commenced March 24, 1998. The tenant argued that the lease had not been breached because he had obtained approval from the city for the apartment. Alternatively, the tenant argued that the landlord had waived any objection to the existence of the apartment because the prior owner accepted rent after he was aware that it was illegal.
Ultimately, the sole issue presented to the jury was whether the alleged building permit and certificate of occupancy purportedly issued by the City of Aspen were forged. The jury determined, on special interrogatories, that the documents were forged, and returned a verdict in favor of landlord.
The remaining issues were contemporaneously tried to the court sitting without a jury. The trial court found against the landlord on his breach of the lease and damages claims, but ordered that possession of the premises be restored to landlord on the grounds that the lease was illegal because it violated the Aspen municipal ordinances. Plaintiff requested an award of attorney fees in excess of $90,000, and the request was denied. Only the attorney fees issue is on appeal.
Landlord argues that the trial court erred in not awarding him prevailing party attorney fees pursuant to 13-40-123, C.R.S. 2000. We remand for further proceedings.
One who prevails in a forcible entry and detainer action "is entitled to recover damages, reasonable attorney fees, and costs." Section 13-40-123.
The trial court found that the landlord could not recover attorney fees under the statute because his claims did not fall within the scope of the statute, that is, he did not prevail on a theory of forcible entry and detainer. Instead, the trial court reasoned that landlord's successful claims relating to the illegality of the lease were in equity. We disagree with both the trial court's conclusion and rationale.
Our review as to proper construction of a statute is de novo. Colorado for Family Values v. Meyer, 936 P.2d 631 (Colo. App. 1997).
Landlord's action was commenced as a FED action in which he sought possession of the premises by a writ of restitution. As relief, the trial court awarded landlord possession of the garage, which effectively evicted the tenant from the premises.
Under such circumstances, we conclude that landlord's claim, and the relief granted, were for, or in the nature of, a forcible entry and detainer. The fact that the resolution of that claim involved the interpretation of the lease, or a determination of the validity of the lease, does not, in our view, change the character of the proceedings.
Thus, the statutory phrase quoted above is applicable here, and the dispositive issue becomes whether the phrase "is entitled" mandates the trial court here to award attorney fees.
In City of Wheatridge v. Cerveny, 913 P.2d 1110 (Colo. 1996), the supreme court considered the implications of the phrase "successful plaintiffs are allowed costs and reasonable attorney fees," which is contained in Article X, Section 20 of the Colorado Constitution (Amendment 1). A divided court concluded that the phrase provided for a discretionary award. The court's analysis began with its recognition that absent a "specific" contract, rule or statute to the contrary, an award of attorney fees to a prevailing party is not permitted. It then analyzed the meaning of the phrase "are allowed" and concluded that such did not establish a mandatory requirement.
In Grynberg v. Agri Tech, Inc., 985 P.2d 59 (Colo. App. 1999), upon which tenant relies, a division of this court, relying in part on Cerveny and in part on the dictionary definition of "entitle," held that a prevailing party fee shifting provision contained in a contract made the award of attorney fees discretionary. The contractual provision at issue there stated, in relevant part, that a prevailing party "shall be entitled" to reasonable attorney fees. The division stated that "entitle" means "qualified for or furnished with the proper grounds for seeking or claiming that award." Grynberg v. Agri Tech, Inc., supra, 985 P.2d at 65.
In our view, the phrase "is entitled" in the statute at issue and "shall be entitled" in Grynberg are synonymous. Therefore, we hold that the award of attorney fees under 13-40-123 is discretionary, not mandatory.
Because the trial court declined to award landlord attorney fees based on its conclusion that 13-40-123 did not apply, we conclude that the matter must be remanded to the trial court for a reconsideration of an award of attorney fees.
Among issues that may arise on remand is landlord's contention that the trial court erred in failing to award attorney fees pursuant to 13-17-102, C.R.S. 2000, on the...
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