     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            October 10, 2019

                               2019COA154

No. 18CA0990, Nesbitt v. Scott — Eminent Domain — Private
Condemnation — Attorney Fees; Civil Procedure — District
Court Practice Standards — Costs and Attorney Fees

     A division of the court of appeals considers whether C.R.C.P.

121 § 1-22(2)(b) requires that a written fee agreement, or some

other materials evidencing the fee agreement, accompany every

motion for attorney fees and costs brought under section 38-1-

122(1), C.R.S. 2019. The division concludes that C.R.C.P. 121 § 1-

22(2)(b) does not impose such a requirement.
COLORADO COURT OF APPEALS                                    2019COA154

Court of Appeals No. 18CA0990
Pueblo County District Court No. 11CV490
Honorable Jill S. Mattoon, Judge


Rita A. Nesbitt, as trustee of the Rita A. Nesbitt Trust,

Petitioner-Appellant,

v.

Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott,

Respondents-Appellees.


                               ORDER AFFIRMED

                                  Division III
                          Opinion by JUDGE FURMAN
                          Webb and Brown, JJ., concur

                          Announced October 10, 2019


Fowler, Schimberg, Flanagan & McLetchie, P.C., Steven W. Fox, Golden,
Colorado, for Petitioner-Appellant

Semler & Associates, P.C., R. Parker Semler, Jeremy Goldblatt, Denver
Colorado, for Respondents-Appellees
¶1    In this appeal of an award of attorney fees and costs, we

 consider whether C.R.C.P. 121, section 1-22(2)(b) requires that a

 written fee agreement, or some other materials evidencing the fee

 agreement, accompany every motion for attorney fees and costs

 brought under section 38-1-122(1), C.R.S. 2019. We conclude that

 C.R.C.P. 121, section 1-22(2)(b) does not impose such a

 requirement.

¶2    This case arose out of a property dispute between petitioner,

 Rita A. Nesbitt, trustee of the Rita A. Nesbitt Trust (Nesbitt), and

 respondents, Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott

 (collectively the Scotts). The dispute led to protracted litigation,

 including an action in trespass and private condemnation

 proceedings, that lasted nearly a decade and involved two reversals

 by divisions of this court.

¶3    Ultimately, the trial court awarded the Scotts $400,431.85 in

 attorney fees and $35,066.25 in costs. Nesbitt mounts two

 challenges to this award of attorney fees and costs. First, she

 contends that the trial court abused its discretion by awarding

 attorney fees and costs to the Scotts because C.R.C.P. 121, section

 1-22(2)(b) required that the Scotts attach a written fee agreement,


                                    1
 or some other materials evidencing the fee agreement, to their

 motion for attorney fees and costs, but they did not do so. Second,

 she contends that she should not have to pay the award associated

 with a summary judgment motion that was ultimately unsuccessful

 because the motion “unnecessarily increased the length of the

 case.” We disagree with each of Nesbitt’s contentions and therefore

 affirm.

                        I. The Property Dispute

¶4    Originally, the Scotts granted Nesbitt permission to construct

 a roadway across their land. When disagreement arose as to the

 size and character of the roadway, the Scotts revoked Nesbitt’s

 permission. But Nesbitt continued to build the roadway. The

 Scotts then retained Semler & Associates, P.C. (Semler) to represent

 them in a trespass action against Nesbitt.

¶5    The trial court in the trespass action found that Nesbitt did

 “not possess any valid legal right (easement) to use [the Scotts’]

 lands” because she “may be able to acquire an easement by

 necessity” across the neighboring Middle Creek Properties.

¶6    Nesbitt then filed a petition in condemnation against the

 Scotts for “immediate possession of the roadway right-of-way”


                                    2
 across the Scotts’ property. Nesbitt alleged in her petition that her

 property was “land locked” and that “access through the Scott

 parcel is indispensable to the practical use” of her property.

¶7    The Scotts again retained Semler to represent them. In a

 motion to dismiss, the Scotts claimed that Nesbitt was precluded

 from bringing a condemnation action because the trial court in the

 trespass action had determined that Nesbitt did not possess a valid

 legal right to cross the Scott parcel. But the district court denied

 this motion.

¶8    The Scotts then moved for summary judgment, arguing issue

 preclusion. This time, the district court granted the Scotts’ motion,

 concluding “the elements for issue preclusion are established”

 because “there was a final judicial determination by this Court that

 Nesbitt has a viable common law easement by necessity” across the

 Middle Creek Properties.

¶9    Nesbitt appealed the district court’s grant of summary

 judgment. A division of this court noted that the trial court in the

 trespass action “made a legal determination that Nesbitt had the

 right to claim an implied easement across” the Middle Creek

 Properties, but not that “the claim gave rise to an existing


                                    3
  easement.” Nesbitt v. Scott, slip op. at 10 (Colo. App. No.

  12CA2211, Aug. 22, 2013) (not published pursuant to C.A.R. 35(f)).

  Thus, the division reversed and remanded the case for an

  evidentiary hearing because the trial court did not make all the

  factual findings “necessary to adjudicate Nesbitt’s private

  condemnation claim.” Id. at 12.

¶ 10    On remand, after a three-day hearing, the trial court denied

  Nesbitt’s petition in condemnation, finding that “an alternative

  route exists to gain access to the Nesbitt Property across a common

  law way by necessity.” A division of this court later reversed the

  judgment dismissing Nesbitt’s petition and remanded for the trial

  court to determine whether Nesbitt’s alternative route provided

  Nesbitt with access to a public road. Nesbitt v. Scott, (Colo. App.

  No. 14CA2265, Apr. 28, 2016) (not published pursuant to C.A.R.

  35(f)).

¶ 11    Meanwhile, the trial court held an evidentiary hearing and

  awarded the Scotts $173,838.30 in attorney fees and $27,559.87 in

  costs. Nesbitt appealed this award, contending that a party seeking

  attorney fees does not comply with C.R.C.P. 121, section 1-22(2)(b)

  “without a copy of the engagement letter or proof as to its terms.”


                                    4
  But Nesbitt’s appeal of this award was dismissed by stipulation of

  the parties after the division reversed and remanded to determine

  whether Nesbitt’s alternative route provided her with access to a

  public road.

¶ 12   On remand, the trial court found that Nesbitt’s alternative

  route connected with a public road and therefore dismissed

  Nesbitt’s petition. A division of this court affirmed this dismissal.

  See Nesbitt v. Scott, (Colo. App. No. 17CA1416, Oct. 4, 2018) (not

  published pursuant to C.A.R. 35(e)).

                 II. The Award of Attorney Fees and Costs

¶ 13   The Scotts filed another motion for an award of attorney fees

  and costs. This motion was based on section 38-1-122(1), which

  provides: “If the court finds that a petitioner is not authorized by

  law to acquire real property or interests therein sought in a

  condemnation proceeding, it shall award reasonable attorney fees,

  in addition to any other costs assessed, to the property owner who

  participated in the proceedings.” § 38-1-122(1).

¶ 14   In a written order, the trial court initially noted that “neither

  [the Scotts] nor their counsel have been able to produce a copy of

  the written fee agreement.” But, said the trial court, “C.R.C.P. 121


                                     5
  § 1-22(2)(b) does not state that failure to produce a written fee

  agreement requires the Court to deny a fee application, it only

  suggests that the written fee agreement should be attached to the

  fee application if it exists and is available.” So, the trial court relied

  on other evidence, such as testimony that the Scotts

          • signed a fee agreement;

          • agreed to be bound to pay the hourly rates set forth in

             Semler’s fee affidavits;

          • received communications regarding rate increases and

             accepted those rate increases; and

          • paid all fees.

¶ 15   And the court relied on testimony from R. Parker Semler,

  president of Semler, that a flat fee agreement was briefly discussed

  but never put in place. Given this evidence, the trial court

  concluded that the Scotts had adequately complied with C.R.C.P.

  121, section 1-22(2)(b).

                          III. Standard of Review

¶ 16   We review a trial court’s decision to award attorney fees for

  abuse of discretion. See Crandall v. City of Denver, 238 P.3d 659,

  661 (Colo. 2010). A trial court abuses its discretion if the award is

                                        6
  manifestly arbitrary, unreasonable, or unfair. Planning Partners

  Int’l, LLC v. QED, Inc., 2013 CO 43, ¶ 12. Whether attorney fees are

  reasonable is a question of fact for the trial court; thus, we will not

  disturb its ruling on review unless patently erroneous and

  unsupported by the evidence. Payan v. Nash Finch Co., 2012 COA

  135M, ¶ 16.

¶ 17   With this in mind, we turn to Nesbitt’s contentions on appeal.

                       IV. Attorney Fees and Costs

¶ 18   We first consider whether the trial court abused its discretion

  by awarding attorney fees and costs to the Scotts because C.R.C.P.

  121, section 1-22(2)(b) required that the Scotts attach a written fee

  agreement, or some other materials evidencing the fee agreement, to

  their motion for attorney fees and costs and they did not do so. We

  conclude that because C.R.C.P. 121, section 1-22(2)(b) did not

  impose such a requirement on the Scotts, the trial court did not

  abuse its discretion.

                 A. Interpretation of Statutes and Rules

¶ 19   We review the interpretation of statutes and rules of civil

  procedure de novo. See MDC Holdings, Inc. v. Town of Parker, 223

  P.3d 710, 717 (Colo. 2010); Strudley v. Antero Res. Corp., 2013 COA


                                     7
  106, ¶ 13, aff’d, 2015 CO 26. When interpreting statutes, we “give

  effect to every word and render none superfluous.” Colo. Water

  Conservation Bd. v. Upper Gunnison River Water Conservancy Dist.,

  109 P.3d 585, 597 (Colo. 2005), superseded by statute on other

  grounds, Ch. 197, secs. 1-3, §§ 37-92-102, -103, -305, 2006 Colo.

  Sess. Laws 906-09.

¶ 20    And, when statutes and rules are clear and unambiguous, we

  will give effect to their plain and ordinary meaning. See City & Cty.

  of Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d 1270,

  1275 (Colo. 2010); MDC Holdings, 223 P.3d at 717.

       B. Section 38-1-122(1) and C.R.C.P. 121, Section 1-22(2)(b)

¶ 21    Section 38-1-122(1) is clear and unambiguous. In a

  condemnation proceeding, when a petitioner is not authorized by

  law to condemn real property, the court “shall award reasonable

  attorney fees, in addition to any other costs assessed, to the

  property owner who participated in the proceedings.” § 38-1-

  122(1). This includes appellate fees incurred in any appeal from the

  underlying case. See Akin v. Four Corners Encampment, 179 P.3d

  139, 147-48 (Colo. App. 2007) (citing Hartman v. Freedman, 197

  Colo. 275, 281, 591 P.2d 1318, 1322 (1979)).


                                    8
¶ 22   The procedure governing a request for attorney fees is found in

  C.R.C.P. 121, section 1-22(2)(b), which reads, in pertinent part:

  “The motion shall be accompanied by any supporting

  documentation, including materials evidencing the attorney’s time

  spent, the fee agreement between the attorney and client, and the

  reasonableness of the fees.”

¶ 23   Nesbitt urges us to interpret C.R.C.P. 121, section 1-22(2)(b)

  as requiring every motion for attorney fees and costs, including the

  Scotts’ motion, to be accompanied by a written fee agreement or

  some other written materials evidencing the fee agreement. We

  disagree with this interpretation.

¶ 24   C.R.C.P. 121, section 1-22(2)(b) requires “any” documentation

  that supports a motion for attorney fees and costs to accompany

  the motion. The word “any” modifies “supporting documentation”

  and is “used as a function word . . . to indicate one that is not a

  particular or definite individual of the given category but whichever

  one chance may select.” Webster’s Third New International

  Dictionary 97 (2002). Hence, the plain and ordinary language of

  C.R.C.P. 121, section 1-22(2)(b) does not specify that a “particular

  or definite” type of supporting documentation, such as a written fee


                                       9
  agreement, must accompany a motion for attorney fees and costs.

  Id.; see Farmers Reservoir & Irrigation Co., 239 P.3d at 1275; MDC

  Holdings, 223 P.3d at 717; Upper Gunnison River Water

  Conservancy Dist., 109 P.3d at 597.

¶ 25   And, while C.R.C.P. 121, section 1-22(2)(b) refers to “materials

  evidencing the attorney’s time spent, the fee agreement between the

  attorney and client, and the reasonableness of the fees,” we

  conclude that the rule refers to these “materials” as non-exhaustive

  examples of documentation that are “includ[ed]” in the category of

  “supporting documentation.” Indeed, C.R.C.P. 121, section 1-

  22(2)(b) describes “supporting documentation” as “including” the

  enumerated “materials.” See Webster’s Third New International

  Dictionary 1143 (2002) (To “include” means “to place, list, or rate as

  a part or component of a whole or of a larger group, class, or

  aggregate.”). As discussed above, because the word “any” modifies

  the phrase “supporting documentation” in C.R.C.P. 121, section 1-

  22(2)(b), this rule does not require a particular type of “supporting

  documentation,” including the particular “materials” identified in

  the rule, to accompany the motion.




                                    10
¶ 26   Yet, Nesbitt contends that because Rule 1.5 of the Colorado

  Rules of Professional Conduct generally requires attorney fee

  agreements to be in writing, “it is reasonable to conclude that the

  legislature intended that submission of contemporaneous written

  documentation which memorializes the fee agreement, whether

  formal or informal, [be] a basic requirement for any application of

  attorney’s fees.” Because we conclude that the language of C.R.C.P.

  121, section 1-22(2)(b) clearly provides that not every motion for

  attorney fees and costs must be accompanied by a written fee

  agreement, we need not look to Colo. RPC 1.5 in interpreting the

  rule. See Crawford v. Melby, 89 P.3d 451, 453 (Colo. App. 2003)

  (“In determining the meaning of procedural rules, we give the words

  their plain meaning, and if the language of the rules is clear and

  unambiguous, we need not look further to determine their

  meaning.”).

¶ 27   Nesbitt also contends that our interpretation must be guided

  by CRE 1002-1004 (Colorado’s best evidence rule), which requires

  an “original” to prove the content of a writing. We disagree. Again,

  because we have concluded that the language of C.R.C.P. 121,

  section 1-22(2)(b) clearly provides that not every motion for attorney


                                    11
  fees and costs must be accompanied by a written fee agreement, we

  need not look to a rule of evidence to guide our interpretation. See

  Crawford, 89 P.3d at 453.

¶ 28   Nesbitt also relies on Ravenstar LLC v. One Ski Hill Place LLC,

  2016 COA 11, ¶¶ 60-66, aff’d, 2017 CO 83, for the proposition that

  unless the moving party’s attorneys are salaried, C.R.C.P. 121,

  section 1-22(2)(b) requires a written fee agreement to accompany a

  motion for attorney fees. This reliance is misplaced.

¶ 29   In Ravenstar, a division of this court held that a written fee

  agreement need not accompany a motion for attorney fees when the

  moving party’s attorneys worked as in-house counsel. Id. at ¶ 65.

  The division reasoned that “[b]ecause [the attorneys] were salaried,

  [the moving party] was not required to submit a fee agreement

  under C.R.C.P. 121, section 1-22(2)(b).” Id. But, contrary to

  Nesbitt’s suggestion, the division in Ravenstar did not hold that

  section 1-22(2)(b) always requires a written fee agreement, except

  when the moving party’s attorneys are salaried. The division in

  Ravenstar did not address the issue, raised in Nesbitt’s appeal, of

  whether 1-22(2)(b) requires a written fee agreement or some other




                                    12
  materials evidencing the fee agreement to accompany a motion for

  attorney fees and costs.

                               C. Analysis

¶ 30   Because C.R.C.P. 121, section 1-22(2)(b) does not require a

  written fee agreement or other materials evidencing the fee

  agreement to accompany a motion for attorney fees and costs, we

  conclude that the trial court did not abuse its discretion by

  awarding attorney fees and costs to the Scotts. See Crandall, 238

  P.3d at 661. At the hearing, the Scotts asserted, and the trial court

  found, that the written fee agreement had been lost. So, the Scotts

  did not have to attach a written fee agreement to their motion for

  attorney fees and costs. See C.R.C.P. 121, § 1-22(2)(b).

¶ 31   Alternatively, Nesbitt contends that the Scotts had to produce

  a written fee agreement after Nesbitt objected to the lack of a

  written fee agreement in the 2015 evidentiary hearings. But Nesbitt

  has pointed to no authority, and we are not aware of any, that

  imposes this duty on the Scotts. And C.R.C.P. 121, section 1-

  22(2)(b) does not require a written fee agreement.

¶ 32   Nesbitt also contends, for the first time on appeal, that the

  trial court’s award was unreasonable and unfair because Rodney


                                    13
  Scott did not produce “records of payment and/or copies of

  cancelled checks in his possession.” Because Nesbitt did not raise

  this issue before the trial court, we decline to address it. People v.

  Salazar, 964 P.2d 502, 507 (Colo. 1998) (“It is axiomatic that issues

  not raised in or decided by a lower court will not be addressed for

  the first time on appeal.”).

                         V. Summary Judgment

¶ 33   We next consider whether, as Nesbitt contends, the trial court

  “abused its discretion in awarding attorney fees associated with the

  Scotts’ 2012 motion for summary judgment which was later

  reversed on appeal.” We conclude that it did not.

¶ 34   The trial court granted the 2012 motion for summary

  judgment on the theory of issue preclusion, forgoing the originally

  planned possession hearing. But a division of this court held that

  summary judgment was improper and remanded for a possession

  hearing.

¶ 35   Nesbitt contends that the 2012 motion for summary judgment

  caused both parties to prepare twice for the immediate possession

  hearing and therefore unnecessarily increased attorney fees and

  costs. Nesbitt also contends that the 2012 motion for summary


                                    14
  judgment was “ill-conceived” because it reiterated arguments the

  Scotts had made in a previously denied motion to dismiss. We

  disagree with these contentions.

¶ 36   In assessing attorney fees and costs, the trial court did not

  find the Scotts’ 2012 motion for summary judgment to be

  groundless, frivolous, untimely, or in bad faith. And, the Scotts

  were ultimately successful on the merits.

¶ 37   So, we cannot say the trial court abused its discretion in

  awarding attorney fees and costs associated with the 2012 motion

  for summary judgment. See Payan, ¶ 16.

                               VI. Conclusion

¶ 38   The trial court’s award of attorney fees and costs is affirmed.

       JUDGE WEBB and JUDGE BROWN concur.




                                     15
