COLORADO COURT OF APPEALS                                    2017COA113


Court of Appeals No. 16CA1473
Las Animas County District Court No. 13CV30013
Honorable Ronald G. Crowder, Judge


Francisco “Frank” Ruybalid IV,

Plaintiff-Appellant,

v.

Board of County Commissioners of the County of Las Animas County,
Colorado; Anthony Abeyta, member of the Las Animas Board of County
Commissioners; Gary D. Hill, member of the Las Animas Board of County
Commissioners; Mack Louden, member of the Las Animas Board of County
Commissioners; Board of County Commissioners of the County of Huerfano
County, Colorado; Gerald Cisneros, member of the Huerfano Board of County
Commissioners; Ray Garcia, member of the Huerfano Board of County
Commissioners; and Max Vezanni, member of the Huerfano Board of County
Commissioners,

Defendants-Appellees.


                            JUDGMENT AFFIRMED

                                  Division V
                           Opinion by JUDGE DUNN
                       Hawthorne and Navarro, JJ., concur

                          Announced August 24, 2017


Kamm & McConnell, L.L.C., Steven L. McConnell, Raton, New Mexico, for
Plaintiff-Appellant

Newnam Land LLP, Mary D. Newnam, Wimberley, Texas, for Defendants-
Appellees Board of County Commissioners of the County of Las Animas
County, Anthony Abeyta, Gary D. Hill, and Mack Louden
Garrett Sheldon, Walsenburg, Colorado, for Defendants-Appellees Board of
County Commissioners of the County of Huerfano County, Gerald Cisneros,
Ray Garcia, and Max Vezanni
¶1    Francisco “Frank” Ruybalid IV admitted to serial violations of

 the Colorado Rules of Professional Conduct during his tenure as

 District Attorney for the Third Judicial District, located in Las

 Animas and Huerfano Counties. Believing that the Counties should

 be on the hook for the fees and costs he incurred to defend himself

 in the disciplinary proceeding, he sued them.1 Seeing no legal

 claim, the district court dismissed the complaint. Urging us to

 undo that ruling, Mr. Ruybalid professes to have statutory and

 equitable rights to attorney fees and costs. Because he doesn’t, we

 affirm.

                           I.    Background

¶2    In 2000, the citizens of the Third Judicial District elected

 Mr. Ruybalid District Attorney. During his term, the Office of

 Attorney Regulation Counsel filed disciplinary charges against him.

¶3    After the Counties refused to assume Mr. Ruybalid’s defense,

 he hired counsel to represent him in the disciplinary action.

 Mr. Ruybalid eventually entered into a stipulation, admitting to a

 pattern of discovery violations and several instances of failing to


 1Mr. Ruybalid named as defendants the respective Boards of
 County Commissioners, along with each individual commissioner.

                                    1
 supervise and train his subordinates. He acknowledged that his

 discovery violations — and those of his subordinates — resulted in

 sanctions and suppression of key evidence in over a dozen criminal

 cases. He also agreed that, as a direct result of these violations, the

 prosecution dismissed the majority of those cases. And he

 stipulated that he “did not diligently represent the People” and

 “engaged in conduct prejudicial to the administration of justice” in

 violation of the Colorado Rules of Professional Conduct.

¶4    The Presiding Disciplinary Judge approved the “conditional

 admission of misconduct and suspended [Mr. Ruybalid] for six

 months, all stayed upon the successful completion of a twenty-

 three-month” probation period. People v. Ruybalid, Nos.13PDJ065,

 14PDJ064, 2010 WL 11020220, at *1 (Colo. O.P.D.J. Jan. 28,

 2010).

¶5    After resolving the disciplinary action, Mr. Ruybalid filed a

 complaint for declaratory relief against the Counties, seeking

 reimbursement for his attorney fees and other costs incurred in the

 disciplinary proceeding. He specifically asked the court to declare

 that “the [C]ounties were required to indemnify and defend [him]

 against the claims asserted in the [d]isciplinary [a]ction” and that


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 he “is allowed to collect . . . all of his reasonable and necessary

 attorney[] fees, expert witness fees, expenses, practice monitor fees

 and costs” incurred in that action.

¶6    The Counties moved to dismiss the complaint for failure to

 state a claim, arguing Mr. Ruybalid had no right to attorney fees

 and costs. Mr. Ruybalid countered that he had a statutory

 entitlement to attorney fees and costs and, in addition, he had

 stated an equitable claim for such fees and costs. The district court

 concluded that Mr. Ruybalid had stated neither a statutory nor an

 equitable claim for attorney fees and costs, and it dismissed the

 complaint.

                         II.   Section 20-1-303

¶7    Mr. Ruybalid’s primary contention is that he is statutorily

 entitled to attorney fees and costs under section 20-1-303, C.R.S.

 2016, and the district court erred in concluding otherwise. The

 issue for us then is whether that statute requires the Counties to

 reimburse Mr. Ruybalid for such fees and costs. We conclude it

 does not.

¶8    That parties generally bear their own costs of litigation absent

 a statute, court rule, or private contract permitting those costs to be


                                    3
 shifted is well settled. See, e.g., Buckhannon Bd. & Care Home, Inc.

 v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602-03

 (2001); Bernhard v. Farmers Ins. Exch., 915 P.2d 1285, 1287 (Colo.

 1996). And while this so-called American Rule is more often

 considered in the context of whether a prevailing party may recover

 fees and costs from an opposing party, it reflects the broader and

 long-held presumption that parties pay their own legal fees and

 costs, “win or lose.” Baker Botts L.L.P. v. ASARCO LLC, 576 U.S.

 ___, ___, 135 S. Ct. 2158, 2164 (2015) (quoting Hardt v. Reliance

 Standard Life Ins. Co., 560 U.S. 242, 253 (2010)); Fogerty v.

 Fantasy, Inc., 510 U.S. 517, 533 (1994) (“[I]t is the general rule in

 this country that unless Congress provides otherwise, parties are to

 bear their own attorney’s fees.”).

¶9    We will not conclude that a statute alters the American Rule

 and shifts attorney fees and costs to another absent “explicit

 statutory authority.” Buckhannon, 532 U.S. at 602 (quoting Key

 Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)); see also

 City of Wheat Ridge v. Cerveny, 913 P.2d 1110, 1114 (Colo. 1996)

 (Courts do not construe a fee-shifting provision as mandatory

 unless its directive is specific and clear.). And such explicit


                                      4
  statutory authority tends to plainly “authorize the award of ‘a

  reasonable attorney’s fee,’ ‘fees,’ or ‘litigation costs,’ and usually

  refer[s] to a ‘prevailing party’ in the context of an adversarial

  ‘action.’” Baker Botts, 576 U.S. at ___, 135 S. Ct. at 2164 (citing

  specific statutory examples). Following this lead, we will not infer

  an exception to the general rule that parties pay their own attorney

  fees and costs from statutory provisions “that do not explicitly

  address attorney fees.” Allstate Ins. Co. v. Huizar, 52 P.3d 816, 821

  (Colo. 2002); see also § 13-16-122(1)(h), C.R.S. 2016 (Attorney fees

  are recoverable as costs only “when authorized by statute or court

  rule.”).

¶ 10    We review de novo whether a statute mandates an award of

  attorney fees and costs. Castro v. Lintz, 2014 COA 91, ¶ 11.

¶ 11    Section 20-1-303 states that a district attorney “shall be

  allowed to collect and receive from each of the counties in his

  district the expenses necessarily incurred in the discharge of his

  official duties for the benefit of such county.” This section says

  nothing about attorney fees, fees, or litigation costs. See Baker

  Botts, 576 U.S. at ___, 135 S. Ct. at 2164. Nor does it reference

  litigation, any type of action or proceeding, or prevailing parties.


                                      5
  See id. That is, nothing in section 20-1-303 even hints at a

  legislative intent to include attorney fees or litigation costs incurred

  in a disciplinary proceeding as “expenses necessarily incurred” in

  discharging a district attorney’s official duties. Because nothing in

  the statute explicitly authorizes awarding Mr. Ruybalid his attorney

  fees and costs, we cannot agree that the use of the term “expenses”

  — untethered as it is from a legal proceeding or reasonable attorney

  fees — creates an exception to the long-established presumption

  that parties to a legal proceeding pay their own way.

¶ 12   It is indeed rare for courts to sweep attorney fees into

  statutory language that uses phrases other than “attorney fees.”

  See, e.g., Leadville Water Co. v. Parkville Water Dist., 164 Colo. 362,

  365, 436 P.2d 659, 660 (1967) (declining to interpret “just

  compensation” in eminent domain provision of Colorado

  Constitution to include attorney fees in absence of statute expressly

  so providing); In re Marriage of Wright, 841 P.2d 358, 361 (Colo.

  App. 1992) ( “[T]he term ‘costs’ normally does not include attorney

  fees.”); Lanes v. O’Brien, 746 P.2d 1366, 1374 (Colo. App. 1987)

  (Attorney fees were not authorized in statute allowing for

  reimbursement “for ‘any costs’ incurred” in an administrative


                                     6
  proceeding; the legislature later specifically added “attorney fees” to

  the language of the statute at issue, Ch. 251, sec. 1 § 24-50.5-

  104(2), 1997 Colo. Sess. Laws 1418.); see also State ex rel. Bryant v.

  McLeod, 888 S.W.2d 639, 642 (Ark. 1994) (“The terms ‘costs’ or

  ‘expenses’ when used in a statute do not ordinarily include

  attorneys’ fees.”); Merlino v. Delaware Cty., 728 A.2d 949, 951 (Pa.

  1999) (Use of the word “expense” in a statute was “insufficient to

  constitute a basis for the award of attorneys’ fees.”).

¶ 13   For these reasons, we cannot agree with Mr. Ruybalid that the

  Counties’ statutory obligation to pay for “expenses necessarily

  incurred” in discharging a district attorney’s official duties creates

  an exception to the American Rule.

¶ 14   Consider also that had the General Assembly intended to

  permit district attorneys to recover attorney fees and costs incurred

  in a legal proceeding, disciplinary or otherwise, it would have said

  so. After all, it has plainly provided that public officials may recover

  reasonable attorney fees and costs incurred in defending against

  certain tort claims. § 24-10-110(1.5), C.R.S. 2016. And it has

  explicitly and plainly authorized the recovery of attorney fees in

  various other statutes. See § 5-6-114(3), C.R.S. 2016 (allowing


                                     7
  Consumer Credit Code administrator to seek reimbursement of

  attorney fees when the administrator is the prevailing party); § 13-

  17-102(2), C.R.S. 2016 (authorizing attorney fees against a party

  when a showing is made that the party brought or defended a civil

  action that “lacked substantial justification” in whole or in part); §

  13-17-201, C.R.S. 2016 (mandating award of attorney fees when a

  trial court dismisses a tort action under C.R.C.P. 12); § 18-4-405,

  C.R.S. 2016 (allowing awards of attorney fees in civil theft actions);

  § 24-4-106(8), C.R.S. 2016 (requiring attorney fees awards for

  frivolous proceedings that contest a rulemaking agency’s

  jurisdiction or authority). These statutes share a clear intent to

  deviate from the American Rule — an intent that is not expressed

  in, or even suggested by, section 20-1-303.

¶ 15   All that said, we are left to address Colorado Counties Casualty

  & Property Pool v. Board of County Commissioners, 51 P.3d 1100

  (Colo. App. 2002). That case seems to interpret section 20-1-303,

  and both sides point to language in the opinion that they argue

  supports their respective positions.

¶ 16   In Colorado Counties, a former employee sued a district

  attorney for wrongful termination. Id. at 1101. Three of the four


                                     8
  counties in which the judicial district sat paid the district attorney’s

  defense fees and costs. Id. The counties that paid then sought

  reimbursement from the county that did not (Prowers County)

  under section 20-1-303 and perhaps the Colorado Governmental

  Immunity Act (CGIA), § 24-10-110(1.5).2 Colorado Counties, 51

  P.3d at 1101. The trial court entered judgment against Prowers

  County and ordered that it indemnify the other counties for its

  share of defense costs and settlement expenses. Id. at 1101-02.

  On appeal, a division of this court concluded that the attorney fees

  and costs were necessarily incurred because it “is foreseeable that

  the district attorney would have employees and, consequently, that

  such employees might sue for wrongful termination.” Id. at 1102.

¶ 17   To the extent Colorado Counties can be read to authorize

  payment of attorney fees and costs under section 20-1-303, for

  three reasons, we don’t agree. See City of Steamboat Springs v.

  Johnson, 252 P.3d 1142, 1147 (Colo. App. 2010) (“We are not

  bound to follow a prior division’s ruling.”). First, it is not apparent


  2The opinion shifts between discussing the CGIA, § 24-10-110(1.5),
  C.R.S. 2016, and section 20-1-303, C.R.S. 2016, but it does not
  specifically identify what claims the counties asserted in their
  complaint.

                                     9
  (and the opinion does not say) how the counties had standing to

  assert a claim under section 20-1-303.3 See § 20-1-303 (referring

  solely to the district attorney’s ability to collect and receive certain

  expenses). So whether the trial court or this court had jurisdiction

  to consider the counties’ claim is questionable. Second, Colorado

  Counties addressed neither the American Rule nor the lack of any

  explicit language in section 20-1-303 authorizing attorney fees.

  Third, with no explanation or analysis, Colorado Counties fused the

  standard for obtaining attorney fees under the CGIA (which

  expressly allows for attorney fees) into section 20-1-303 (which says

  nothing about attorney fees). We see no analytical basis to import

  the CGIA into section 20-1-303 and are left unconvinced that the

  General Assembly so intended. Because we do not agree with

  Colorado Counties, we need not determine whether it helps or hurts

  Mr. Ruybalid.

¶ 18   Perhaps anticipating problems with the statutory language,

  Mr. Ruybalid pursues a second path, arguing that he should be

  reimbursed for attorney fees and costs incurred in defending a


  3Nothing in the opinion suggests that the counties brought a
  derivative claim.

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disciplinary proceeding as a matter of public policy. He argues that

without reimbursement, “the office of the District Attorney cannot

be maintained nor exist.” This is so, he continues, because it is

foreseeable that prosecutors will be grieved, and without

reimbursement, qualified candidates will be deterred from serving

the public for fear of being required to either consent to discipline or

“face personal financial ruin.” The Counties retort that it is not in

the public’s interest to force taxpayers to pay the attorney fees of an

admitted ethics violator. Whatever the merits of these competing

arguments, matters of public policy are better addressed by the

General Assembly, not us. See Samuel J. Stoorman & Assocs., P.C.

v. Dixon, 2017 CO 42, ¶ 11; Huizar, 52 P.3d at 821. Should the

General Assembly conclude that policy considerations favor

requiring counties to reimburse district attorneys for defending

disciplinary charges, and, if so, under what conditions, it will so

legislate. Stoorman, ¶ 11 (“The General Assembly sets public policy,

and express statutory language is the main vehicle it uses.”).4


4 For instance, the General Assembly could condition
reimbursement on whether a district attorney successfully defends
against the disciplinary charges or on whether the disciplinary
charges are without factual or legal basis.

                                  11
¶ 19   Finally, each party invites us to consider selected out-of-state

  opinions for guidance. But these cases are based either on that

  state’s common law, see Lomelo v. City of Sunrise, 423 So. 2d 974,

  976 (Fla. Dist. Ct. App. 1982), or on dissimilar statutes, see Spatola

  v. Town of New Milford, 44 Conn. L. Rptr. 242, 2007 WL 3038100,

  at *1 n.1 (Conn. Super. Ct. Sept. 26, 2007) (unpublished opinion);

  Triplett v. Town of Oxford, 791 N.E.2d 310, 313 (Mass. 2003);

  Sanders v. State, 207 P.3d 1245, 1247 (Wash. 2009). Out-of-state

  authority is therefore unhelpful here.

¶ 20   Leaving aside the fact that the statute doesn’t exempt

  Mr. Ruybalid from bearing his own attorney fees and costs, we also

  observe that he failed to allege any facts that the expenses incurred

  in defending the disciplinary proceeding were “for the benefit of” the

  Counties. § 20-1-303. While we accept all factual allegations in the

  complaint as true, we do not do the same with conclusory

  allegations or legal conclusions. Warne v. Hall, 2016 CO 50, ¶ 9;

  Fry v. Lee, 2013 COA 100, ¶ 17. This means that, to survive a

  motion to dismiss, a complaint must allege more than conclusions.

  Warne, ¶ 9; see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)

  (Mere legal conclusions cannot survive a motion to dismiss.).


                                    12
¶ 21   The complaint here did not. It simply parroted the statutory

  language, alleging in a conclusory fashion that the expenses

  Mr. Ruybalid incurred in the disciplinary proceeding were “for the

  benefit of” the Counties. Simply asserting a legal conclusion —

  bereft of any supporting factual allegations — does not state a

  plausible claim for relief. Warne, ¶ 9.

¶ 22   In sum, we agree with the district court that Mr. Ruybalid

  failed to state a claim that the Counties were required to reimburse

  him for the attorney fees and costs incurred to defend his

  disciplinary proceeding under section 20-1-303.

                        III.   Promissory Estoppel

¶ 23   Mr. Ruybalid’s contention that the district court erroneously

  dismissed his promissory estoppel claim fares no better.

¶ 24   Promissory estoppel provides relief to those without an

  enforceable contract who were harmed because they relied on

  another’s promise. G & A Land, LLC v. City of Brighton, 233 P.3d

  701, 703 (Colo. App. 2010). To assert a claim for promissory

  estoppel, a plaintiff must allege facts showing a promise by the

  defendant, action or forbearance by the plaintiff induced by the




                                     13
  promise, and injustice that can be avoided only by enforcing the

  promise. Id.

¶ 25   Mr. Ruybalid, however, did not allege facts showing that the

  Counties promised him anything. More to the point, he did not

  allege the Counties promised to reimburse him for attorney fees and

  costs incurred in defending a disciplinary proceeding. Rather than

  alleging that the Counties directly promised to reimburse

  Mr. Ruybalid, the promissory estoppel claim appears to be based on

  three statutes.5 But Mr. Ruybalid points to no authority — nor are

  we aware of any — that allows a plaintiff to maintain a promissory

  estoppel claim against a local government based on a statute

  enacted by the state legislature. And even if it is conceivable to do

  so, the Counties did not draft or enact the statutes. See Denver

  Milk Producers v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen

  & Helpers’ Union, 116 Colo. 389, 414, 183 P.2d 529, 541 (1947)


  5 Specifically, the complaint identified section 20-1-302, C.R.S.
  2016 (requiring counties, in proportion to their populations, to
  provide “necessary expenses of maintaining an office for the
  transaction of official business”); section 20-1-303 (requiring a
  county to pay “expenses necessarily incurred in the discharge of . . .
  official duties for the benefit of such county”); and section 24-10-
  110 (authorizing indemnification of public officials for defending
  certain tort claims).

                                    14
  (“[T]he legislature has plenary power to legislate . . . .”). So the

  identified statutes do not reflect any “promise” by the Counties.

¶ 26   That is not to say a plaintiff may not maintain a promissory

  estoppel claim against a board of county commissioners. See Bd. of

  Cty. Comm’rs v. DeLozier, 917 P.2d 714 (Colo. 1996). But such a

  claim must be based upon a clear and unambiguous promise the

  board made to the plaintiff. Id. (allowing promissory estoppel claim

  against a board where the plaintiff alleged the board breached its

  employment promise to her).

¶ 27   Given the allegations in the complaint, we agree with the

  district court that Mr. Ruybalid did not allege facts showing the

  Counties unambiguously promised to reimburse him for attorney

  fees and costs he incurred in defending the disciplinary proceeding.

  The district court therefore correctly concluded that Mr. Ruybalid

  failed to state a promissory estoppel claim.

             IV.   Other Challenges to the Court’s Dismissal

¶ 28   Mr. Ruybalid also contends that the district court erred by

  (1) making factual findings that the disciplinary action did not

  benefit the Counties; (2) stating that, to be entitled to

  indemnification under section 20-1-303, Mr. Ruybalid “needed to


                                     15
  have stated a plausible claim” under the CGIA; and (3) determining

  Mr. Ruybalid was required to successfully defend the disciplinary

  proceeding before the Counties were obligated to pay. We need not

  delve into these specific contentions, however, because they all

  assume that Mr. Ruybalid is entitled to attorney fees under section

  20-1-303. Because he is not, even if he is correct that the court

  erred in any of these respects, it does not alter the fact that

  Mr. Ruybalid is not entitled to reimbursement of his attorney fees

  and costs.

                             V.    Conclusion

¶ 29   The judgment is affirmed.

       JUDGE HAWTHORNE and JUDGE NAVARRO concur.




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