COLORADO COURT OF APPEALS                                         2016COA145

Court of Appeals No. 15CA1135
Boulder County District Court No. 14CV31112
Honorable Andrew Hartman, Judge


Golden Run Estates, LLC, a Colorado limited liability company; and Aaron
Harber,

Plaintiffs-Appellees,

v.

Town of Erie,

Defendant-Appellant.


                   JUDGMENT VACATED IN PART AND CASE
                       REMANDED WITH DIRECTIONS

                                   Division I
                         Opinion by JUDGE TAUBMAN
                         Freyre and Nieto*, JJ., concur

                          Announced October 6, 2016


RJB Lawyer, LLC, Robert J. Bruce, Denver, Colorado, for Plaintiffs-Appellees

Nathan Dumm & Mayer, P.C., J. Andrew Nathan, Marni Nathan Kloster,
Nicholas C. Poppe, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    This case arises out of defendant, Town of Erie, annexing a

 320-acre property located in unincorporated Boulder County that

 plaintiff Aaron Harber owned. Harber envisioned his company,

 plaintiff Golden Run Estates, LLC, developing the property into a

 sustainable, mixed-use community for 40,000 residents over 25 to

 50 years. After the parties entered into a pre-annexation

 agreement, Golden Run and Harber (the plaintiffs) sued Erie

 because further negotiations did not result in an annexation

 agreement. They brought four claims: two contract claims, one

 claim for declaratory relief, and one claim for a judicial

 disconnection decree.

¶2    After trial, the court concluded that it had subject matter

 jurisdiction over the plaintiffs’ contract claims and entered

 judgment on the jury’s award of damages of over $350,000. The

 trial court also ordered judicial disconnection under section 31-12-

 702, C.R.S. 2016. The only claims before us are Erie’s appeal of the

 jury award on the plaintiffs’ two contract claims.1 Because we



 1 The trial court entered a judicial decree disconnecting the property
 from Erie, a ruling which Erie does not appeal. The court
 concluded that it did not have subject matter jurisdiction over the

                                    1
 conclude that the trial court did not have subject matter

 jurisdiction over either contract claim, we vacate that part of the

 judgment, vacate the jury’s award of damages, and remand the case

 with directions to grant Erie’s motion for directed verdict and for a

 determination of the amount of attorney fees incurred by Erie for

 this appeal.

                          I.      Background

¶3    In 2013, Harber discussed with Erie his plan to develop the

 property. The parties ultimately agreed to pursue annexation of the

 property into Erie. Erie proposed the parties enter into a pre-

 annexation agreement, as the first step of a three-part annexation

 process. An annexation agreement and a detailed development plan

 would follow the pre-annexation agreement.

¶4    In April 2013, Erie and the plaintiffs entered into a pre-

 annexation agreement, which defined the roles of the plaintiffs and

 Erie until the parties could enter into a more formal annexation

 agreement. The parties anticipated they would reach an annexation

 agreement by August 1, 2013, but did not do so.



 plaintiffs’ declaratory relief claim, a ruling that they do not
 challenge.

                                     2
¶5    The pre-annexation agreement set forth remedies for both

 parties in the event of a breach. While Erie retained “all remedies at

 law and equity,” the plaintiffs negotiated for two remedies contained

 in sections 4A and 4B of the pre-annexation agreement. As relevant

 here, section 4A reads:

           At any time on or after August 1, 2013, in the
           event the Golden Run Annexation agreement
           proposed by [the plaintiffs], as it may be
           mutually amended by the parties hereto, is not
           approved by [Erie] at the same time as [Erie]
           approves the annexation of the Property, then,
           in that event, at [the plaintiffs’] sole option,
           [the plaintiffs] may retroactively withdraw the
           Annexation Petition without penalty or further
           obligation by written notice delivered to [Erie]
           and the Property shall not be annexed by
           [Erie], regardless of annexation approval or
           any other actions taken by [Erie].

 (Emphasis added.)2




 2 Although the plaintiffs mentioned section 4B in their answer brief
 as the basis for the court’s award of damages, Harber conceded at
 the pretrial conference that section 4B could not be a basis for
 relief: “I don’t have a problem promising you and entering in and
 agree[ing] to an order that says I can’t seek relief under 4B.” The
 court ruled that “4B will not form the basis of a Plaintiff remedy in
 and of itself or a violation of 4B.” Therefore, we need not address
 section 4B.

                                   3
¶6    In October 2013, Erie’s Board of Trustees adopted Ordinance

 30-2013, which annexed Golden Run into Erie. The ordinance

 became effective on November 15, 2013.

¶7    In January 2014, the plaintiffs submitted a draft annexation

 agreement for the Board of Trustees’ meeting. In the draft

 agreement, Harber proposed that he alone would select the number

 of units in Golden Run. However, a trustee proposed amending the

 annexation agreement to allow Erie to approve the number of units

 that Harber had selected. The plaintiffs did not want Erie to have

 any “veto power” over the scale of Golden Run and thus rejected the

 proposed agreement.

¶8    On February 24, 2014, 101 days after the annexation became

 effective, the plaintiffs requested “retroactive nullification” of the

 annexation of Golden Run. However, the next day, they withdrew

 their request, and the parties continued to negotiate, but without

 reaching agreement. Nonetheless, the plaintiffs agreed to move

 forward with Erie’s initial zoning plan, given Erie’s assurances that

 all the plaintiffs’ “rights to disconnect” would remain intact.

¶9    In July 2014, an Erie police officer responded to Golden Run

 after the police department received a series of complaints about its


                                     4
  condition. Upon arrival, the police officer observed several

  municipal code violations from the property’s edge, but a “tenant”

  refused his entry onto the property. Nevertheless, the tenant

  informed the officer that his mobile home lacked running water and

  that he was forced to urinate and defecate outside. The officer

  contacted Boulder County Adult Protective Services for the elderly,

  at-risk tenant and obtained a search warrant to view the remainder

  of the property.

¶ 10   The search revealed that four tenants were living in dwellings

  unfit for human habitation. The structures on the property were in

  various states of decay and concerns existed over numerous

  deficiencies in the electrical systems exposed to outside elements.

  An Erie building official ordered the tenants to vacate all dwellings

  on the property. The plaintiffs believed that their requests for

  disconnection or “retroactive nullification” of Golden Run’s

  annexation ensured that they were “under no further obligation” to

  Erie and thus were upset by the police action.

¶ 11   On July 30, 2014, the plaintiffs requested that the Board of

  Trustees consider their proposed disconnection ordinance. Erie’s

  Town Administrator informed the plaintiffs that they did not have a


                                    5
  right to disconnect the property. The plaintiffs objected because

  disconnection was “guaranteed by the pre-annexation agreement.”

¶ 12   On August 15, 2014, the plaintiffs “(1) withdr[ew] our

  Annexation Petition, (2) withdr[ew] our Zoning Application, and (3)

  request[ed] to immediately disconnect (i.e. de-annex) from the Town

  of Erie.” They also notified Erie of its alleged breach of the pre-

  annexation agreement.

¶ 13   When Erie failed to remedy its alleged breach within the thirty-

  day grace period provided in the pre-annexation agreement, the

  plaintiffs initiated this lawsuit. They asserted four claims: (1)

  breach of contract for Erie “not processing the de-annexation of the

  Properties”; (2) breach of the implied covenant of good faith and fair

  dealing for Erie exercising its discretion in a commercially

  unreasonable fashion and without regard to the intent of the parties

  when the pre-annexation agreement was executed; (3) declaratory

  relief to “de-annex” or “disconnect” the properties from Erie; and (4)

  an alternative claim for a judicial decree disconnecting the

  properties from Erie.

¶ 14   After the plaintiffs rested their case, Erie moved for a directed

  verdict on several grounds. It asserted that the trial court lacked


                                     6
  subject matter jurisdiction over the breach of contract claims

  because the Municipal Annexation Act of 1965 (the Act), §§ 31-12-

  101 to -123, C.R.S. 2016, precluded the relief the plaintiffs sought.

  Erie also moved for a directed verdict on damages, arguing that the

  plaintiffs’ attempts to value Golden Run without any expert

  testimony were speculative as a matter of law. Erie also moved for

  a directed verdict on the bad faith claim.

¶ 15   As relevant here, the court concluded that it had subject

  matter jurisdiction over the plaintiffs’ contract claims and denied

  Erie’s motion for directed verdict. The court entered judgment in

  the plaintiffs’ favor, totaling $362,500 in damages: $305,000 on

  their breach of contract claim and $57,500 on their claim for

  breach of the implied covenant of good faith and fair dealing.

¶ 16   Erie raises four contentions on appeal: (1) the trial court erred

  under the Act in concluding that it had subject matter jurisdiction

  over the plaintiffs’ contract claims and in upholding the breach of

  contract verdict; (2) the court erred in upholding the jury’s award of

  damages for a breach of the implied covenant of good faith and fair

  dealing despite provisions of the Act that prohibit such an award;

  (3) the court erred in allowing the jury to consider the plaintiffs’


                                     7
  damages for Golden Run’s lost opportunity costs in light of the

  insufficient evidence presented at trial; and (4) the court abused its

  discretion in permitting the plaintiffs’ property manager to testify

  because he was not qualified as an expert.

¶ 17   We agree with Erie that the trial court did not have subject

  matter jurisdiction over the plaintiffs’ contract claims. Therefore,

  we need not address their contentions relating to the sufficiency of

  the evidence concerning lost opportunity costs or the property

  manager’s testimony.

                   II.   Subject Matter Jurisdiction

¶ 18   Erie contends that the trial court lacked subject matter

  jurisdiction over the plaintiffs’ contract claims because they did not

  bring their claims within the jurisdictional sixty-day limitation

  period under section 31-12-116(2)(a)(I), C.R.S. 2016. On the other

  hand, the plaintiffs respond that their contract claims were not

  controlled by the Act and that section 31-12-116 is inapplicable.

  We agree with Erie.

                         A.   Standard of Review

¶ 19   We review de novo a court’s subject matter jurisdiction. Tulips

  Invs., LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 11, 340 P.3d 1126,


                                     8
  1131. Interpretation of the Act is a question of law, which we also

  review de novo. Bd. of Cty. Comm’rs v. City of Aurora, 62 P.3d 1049,

  1052 (Colo. App. 2002). Last, we review de novo the interpretation

  of contract terms. Edge Telecom, Inc. v. Sterling Bank, 143 P.3d

  1155, 1159 (Colo. App. 2006).

                B.   Principles of Statutory Interpretation

¶ 20     “Our review is controlled by the Annexation Act.” Town of

  Superior v. Midcities Co., 933 P.2d 596, 600 (Colo. 1997). In

  construing its statutory provisions, we give effect to the intent of the

  General Assembly. See Allstate Ins. Co. v. Smith, 902 P.2d 1386,

  1387 (Colo. 1995). We first look to the statutory language, giving

  words and phrases their commonly accepted and generally

  understood meanings. Id.; Bertrand v. Bd. of Cty. Comm’rs, 872

  P.2d 223, 228 (Colo. 1994). Where the language of a statute is

  plain and the meaning is clear, we need not resort to interpretive

  rules of statutory construction, but must apply the statute as

  written. Allstate Ins. Co., 902 P.2d at 1387; Bertrand, 872 P.2d at

  228.




                                     9
                C.    Principles of Contract Interpretation

¶ 21   “The primary goal of contract interpretation is to determine

  and give effect to the intent of the parties,” which is to be

  determined from the language of the instrument itself. Ad Two, Inc.

  v. City & Cty. of Denver, 9 P.3d 373, 376 (Colo. 2000). Courts must

  enforce contracts as written. Janicek v. Obsideo, LLC, 271 P.3d

  1133, 1138 (Colo. App. 2011). In interpreting a contract, we must

  “apply the plain meaning of the words used, . . . subject to

  interpretation from the context and circumstances of the

  transaction.” First Christian Assembly of God, Montbello v. City &

  Cty. of Denver, 122 P.3d 1089, 1092 (Colo. App. 2005) (citation

  omitted).

                           D.    Applicable Law

¶ 22   Annexation is a special statutory proceeding where a property,

  if lawfully annexed, becomes a part of the annexing municipality by

  detaching the property from the county in which it lies. Superior,

  933 P.2d at 600-01.

¶ 23   If any landowner “believes itself to be aggrieved by the acts of

  the governing body of the annexing municipality,” the landowner

  may have such acts reviewed in proceedings instituted in a “district


                                     10
  court having jurisdiction of the county in which the annexed area is

  located.” § 31-12-116(1)(a). Any party who wishes to bring such an

  action must file a motion for reconsideration “within ten days of the

  effective date of the ordinance finalizing the challenged annexation.”

  § 31-12-116(2)(a)(II). Compliance with this provision is a condition

  precedent to the right to obtain judicial review under this section.

  Id.

¶ 24    Further, “[a]ll such actions to review the findings and the

  decision of the governing body shall be brought within sixty days

  after the effective date of the ordinance [approving an annexation],

  and, if such action is not brought within such time, such action

  shall forever be barred.” § 31-12-116(2)(a)(I). Section 31-12-116

  provides “the only procedure for judicial review of municipal

  annexations implemented under the Act.” Bd. of Cty. Comm’rs v.

  City of Woodland Park, 2014 CO 35, ¶ 11, 333 P.3d 55, 58. The

  time limitation in section 31-12-116(2)(a)(I) is jurisdictional, and

  because it is not a true statute of limitations, as the supreme court

  stated in dicta in Fort Collins-Loveland Water Dist. v. City of Fort

  Collins, 174 Colo. 79, 84, 482 P.2d 986, 989 (1971) (interpreting

  predecessor statute), it cannot be tolled or waived.


                                     11
¶ 25   We agree with the dicta and conclude that it applies here.

¶ 26   In addition, annexations “shall not be directly or collaterally

  questioned in any suit, action, or proceeding, except as expressly

  authorized in this section.” § 31-12-116(4).

¶ 27   Pre-annexation agreements and contracts are valid under the

  Act, but a party seeking to enforce an annexation contract must

  still comply with the requirements found in the Act. Superior, 933

  P.2d at 602; see also § 31-12-112(1), C.R.S. 2016.

                              E.     Analysis

¶ 28   The plaintiffs contend that their contract claims did not

  challenge the annexation of the property, but rather, the claims

  sought to disconnect the property and to enforce the terms of the

  pre-annexation agreement, which, they argue, “specifically provided

  for disconnection.” We disagree.

¶ 29   The plaintiffs use several different terms — disconnection, de-

  annexation, or withdrawal of the annexation petition — in their

  brief seemingly interchangeably. We conclude that disconnection

  and de-annexation are equivalent, but that withdrawal of an

  annexation petition has a different meaning. We will discuss the




                                     12
  definition of each term below because their meanings are essential

  to our analysis.

¶ 30   We begin with “withdrawal of the annexation petition.” An

  annexation petition is a petition presented to a municipality that is

  signed by landowners in the area to be annexed. See § 31-12-

  107(1), C.R.S. 2016. The petition for annexation enables the

  annexation of a property and has significance only until the

  property is actually annexed or the petition is withdrawn. See

  generally Superior, 933 P.2d at 599 (discussing that a party

  withdrew its petition for annexation so that it could petition a

  different municipality to annex its property).

¶ 31   In contrast, disconnection procedures “disconnect” or “de-

  annex” an annexed property from the municipality of which it was a

  part. See §§ 31-12-501, -702, C.R.S. 2016; see generally Grandote

  Golf & Country Club, LLC v. Town of La Veta, 252 P.3d 1196, 1199

  (Colo. App. 2011) (discussing whether a later ordinance effectively

  disconnected the property that a prior ordinance had purported to

  annex). We conclude that disconnection and de-annexation are

  analogous. The Act provides, as relevant here, for two avenues to




                                    13
  achieve disconnection — by ordinance and by court decree.3 Under

  section 31-12-501, a landowner “may apply to the governing

  body . . . for the enactment of an ordinance disconnecting [its]

  land,” and it is the duty of such governing body to “give due

  consideration to [such] application.” As noted, the plaintiffs

  requested disconnection of Golden Run from Erie, but Erie denied

  their request. This request was made pursuant to the pre-

  annexation agreement and did not cite section 13-12-501.

¶ 32   Under section 31-12-702, a landowner “may petition the

  district court for the county in which such land is situated to have

  the same disconnected from said incorporated town.” Although the

  plaintiffs did not cite section 31-12-702 in their complaint, they

  sought and obtained relief under this section when they asked for a

  judicial disconnection of Golden Run from Erie. Erie does not

  challenge the court’s judicial disconnection of Golden Run on

  appeal.



  3The Act also provides a third avenue to achieve disconnection in
  part 6 of the Act, “Disconnection by Court Decree — Statutory
  Cities.” § 31-12-601, C.R.S. 2016. We need not address this
  section because Erie is a statutory town, not a statutory city, as
  both parties stipulated before the trial court.

                                    14
¶ 33     Thus, withdrawal of an annexation petition and disconnection

  or de-annexation have different meanings. Withdrawing an

  annexation petition relates to proceedings prior to annexation, and

  disconnection or de-annexation relate to proceedings after

  annexation. Withdrawing an annexation petition prevents an

  annexation, and disconnection or de-annexation ends it.

¶ 34     Whatever term the plaintiffs wish to use — whether

  disconnection, de-annexation, or withdrawing their annexation

  petition — in interpreting their rights under the pre-annexation

  agreement, we must first turn to the contract itself.4 Section 4A of

  the contract provides that the plaintiffs “may retroactively withdraw

  the Annexation Petition.” In our view, the plaintiffs could not seek

  to invoke section 4A of the pre-annexation agreement to withdraw

  their annexation petition after Erie had annexed Golden Run in its

  ordinance. In contrast, their remedy under section 4A of the pre-

  annexation agreement only applied before Erie annexed Golden

  Run.


  4In the plaintiffs’ brief, they also refer to requesting “retroactive
  nullification” of the annexation petition. We need not address the
  meaning of this phrase because it was not a remedy for which they
  bargained in the contract, nor is it a remedy provided by statute.

                                    15
¶ 35   We disagree with the plaintiffs’ contention that the word

  “retroactive” enabled them to seek to withdraw their annexation

  petition at any time, even after an annexation ordinance had been

  adopted. Section 4A, after providing for retroactive withdrawal of

  an annexation petition, then states that “the Property shall not be

  annexed by Erie.” This language strongly suggests that withdrawal

  of the annexation petition must precede the adoption of an

  annexation ordinance. Also, the plaintiffs’ interpretation would lead

  to an unreasonable result because it could allow rescission of an

  ordinance after property had been bought and sold based on

  expectations arising from the adoption of an annexation ordinance.

  See First Christian Assembly of God, Montbello, 122 P.3d at 1092.

¶ 36   We further conclude, as discussed below, that the provision in

  section 4A allowing retroactive withdrawal of a petition could only

  be invoked consistently with the jurisdictional timeframe in section

  31-12-116.

¶ 37   Also, the plaintiffs’ assertion that they did not challenge the

  annexation is contrary to their own complaint and theory of breach

  of contract. The plaintiffs’ breach of contract claim alleged that Erie

  breached the pre-annexation agreement by “not processing the de-


                                    16
  annexation of the Properties.” The plaintiffs’ second contract claim

  arose out of their allegations that Erie was “exercising its discretion

  in a commercially unreasonable fashion and without regard to the

  intent of the parties when the pre-Annexation agreement was

  executed.” Consequently, both claims related to the annexation.

  The fact that the plaintiffs’ claims were based in contract does not

  alter the claims’ status as ones that questioned Erie’s decision not

  to allow the plaintiffs to withdraw their annexation petition of

  Golden Run. See § 31-12-116(2)(a)(I) (applying to “actions to review

  the findings and the decision of the governing body”).

¶ 38   Accordingly, we also conclude that the plaintiffs’ claims were

  impermissible collateral attacks on the annexation. It is impossible

  to find a breach of contract based on Erie’s alleged refusal to “de-

  annex” Golden Run without questioning the annexation itself.

¶ 39   Having concluded that the plaintiffs’ claims related to the

  annexation, we further conclude that section 31-12-116 applies to

  bar their contract claims, as it governs “[a]ll such actions to review

  the findings and the decision of the governing body.” § 31-12-

  116(2)(a)(I); see also Superior, 933 P.2d at 600-02 (applying section

  31-12-116 to a petition for annexation). We conclude that Erie’s


                                    17
  decision not to agree to the plaintiffs’ requests to “withdraw” the

  annexation petition was a “decision of the governing body.” § 31-

  12-116(2)(a)(I).

¶ 40   We next conclude that the plaintiffs did not file a motion for

  reconsideration or seek judicial relief within the limitation periods

  as required. § 31-12-116(2)(a)(I), (II). As noted above, the

  annexation became effective under Erie’s ordinances on November

  15, 2013. Thus, the ten-day deadline to file a motion for

  reconsideration lapsed on November 25, 2013, and the sixty-day

  period for judicial review ran on January 14, 2014. The plaintiffs

  did not file a motion to reconsider and did not seek judicial relief

  until September 4, 2014. Further, the first time the plaintiffs

  objected to the annexation was February 25, 2014, a full month

  after the sixty-day limitation period ran.

¶ 41   As described above, section 31-12-116(2)(a)(I) is jurisdictional.

  Fort Collins-Loveland Water Dist., 174 Colo. at 84, 482 P.2d at 989.

  Even though neither party characterizes section 31-12-116(2)(a)(I)

  as such, we conclude that it is a nonclaim statute. Such a statute

  deprives a trial court of subject matter jurisdiction, and its time

  limits cannot be tolled or waived. Like other nonclaim statutes,


                                    18
section 31-12-116(2)(a)(I) provides that certain claims are

“forever . . . barred” if not brought within statutorily specified

periods. See § 15-12-1006, C.R.S. 2016 (claims against

distributees are “forever barred” after limitation period); In re Estate

of Shuler, 981 P.2d 1109, 1114 (Colo. App. 1999) (holding that

section 15-12-1006 is a nonclaim statute and deprives the trial

court of subject matter jurisdiction when it is applicable); see also

§ 24-10-109, C.R.S. 2016 (stating that under the Colorado

Governmental Immunity Act, claims against government must be

brought within limitation period or are “forever barred”); Barnhill v.

Pub. Serv. Co. of Colo., 649 P.2d 716, 718 (Colo. App. 1982) (holding

that section 24-10-109 is a nonclaim statute and imposes “a

condition precedent, namely, filing notice within the time specified,

to the enforcement of the right of action for the benefit of the party

against whom the claim is made”), aff’d, 690 P.2d 1248 (Colo.

1984); see also Marin Metropolitan Dist. v. Landmark Towers Ass’n,

Inc., 2014 COA 40, ¶ 43, ___ P.3d ___. ___ (section 32-1-105(7),

C.R.S. 2016 creates jurisdictional bar to review of district’s court’s

ruling regarding creation of special metropolitan district).

Therefore, section 31-12-116(2)(a)(I) is a nonclaim statute whose


                                   19
  time limitations cannot be waived or tolled by a contract or other

  agreement. See First Interstate Bank of Denver, N.A. v. Cent. Bank

  & Tr. Co. of Denver, 937 P.2d 855, 861 (Colo. App. 1996) (holding

  that “parties cannot waive jurisdictional requirements”).

¶ 42   Because section 31-12-116(2)(a)(I) is a nonclaim statute, the

  parties’ pre-annexation agreement could not waive the sixty-day

  limitation period. Thus, even if we assume that the plaintiffs could

  “retroactively withdraw their petition” as provided in section 4A,

  they needed to withdraw their annexation petition within the sixty-

  day jurisdictional limitation period or section 31-12-116 would

  extinguish their claim.5

¶ 43   Nevertheless, the plaintiffs rely on Geralnes B.V. v. City of

  Greenwood Village, 583 F. Supp. 830 (D. Colo. 1984), to argue that

  where parties do not challenge the annexation of property, but,

  rather, seek disconnection in accordance with their contract terms,

  the complaint is not subject to dismissal for failure to file suit

  within the Act’s deadlines. However, unlike the plaintiffs here, the


  5 The plaintiffs continuously argued that they were entitled to
  “retroactive nullification” of the annexation petition. Because of our
  disposition, we need not address whether the plaintiffs’ use of that
  language had any significance.

                                     20
  plaintiff in Geralnes bargained specifically for the “remedy of

  disconnection of the Property . . . in accordance with” section 31-

  12-119 C.R.S. 2016; Id. at 838. Because section 31-12-119 has not

  been changed since the Geralnes B.V. case, the version that the

  court considered is the same as the current one: 31-12-119, C.R.S.

  2016. In the pre-annexation agreement, the plaintiffs contracted

  only for the right to “retroactively withdraw the Annexation

  Petition.” The pre-annexation agreement is unambiguous.

  Disconnection is not a remedy contained in the plaintiffs’ pre-

  annexation agreement.

¶ 44   The plaintiffs also contend that Erie’s interpretation of the Act

  would enable a municipality to lure a landowner into annexation

  under the premise of fulfilling certain promises, only to repudiate

  those promises when annexation had been accomplished, which

  would be unfair, unjust, and bad public policy. We disagree. The

  plaintiffs, in confusing the meanings of withdrawing an annexation

  petition and disconnection, misconstrue the consequences of our

  statutory interpretation.

¶ 45   A municipality would not be able to “lure” a landowner and

  repudiate its promises with no remedy for the landowner. Rather, if


                                    21
  a municipality does not fulfill its promises, a landowner has two

  remedies: either follow the procedures set forth in section 31-12-

  116 and challenge the annexation within sixty days or request a

  disconnection under section 31-12-501. If the municipality is a

  town and refuses to disconnect the property, the landowner may

  still request a judicial decree disconnecting the property. See § 31-

  21-702. The fact that the plaintiffs obtained a judicial decree

  disconnecting the property weakens their argument on appeal.

¶ 46   Therefore, we conclude that the trial court lacked subject

  matter jurisdiction over the plaintiffs’ contract claims.6

                     III.   Attorney Fees and Costs

¶ 47   Erie requests that, if we determine that the trial court lacked

  subject matter jurisdiction over the plaintiffs’ breach of contract

  claims, we award it attorney fees and costs under section 31-12-

  116(2)(a)(IV). Erie also requests attorney fees and costs under

  section 14 of the pre-annexation agreement if it prevails. Likewise,




  6 We also conclude that the trial court was precluded from
  considering the plaintiffs’ contract claims under section 31-12-
  116(2)(a)(I), C.R.S. 2016, because they failed to timely file a motion
  to reconsider, which was a condition precedent to judicial review.

                                     22
  the plaintiffs request that we award them attorney fees pursuant to

  the pre-annexation agreement.

¶ 48   Section 14 of the pre-annexation agreement provides that

  “once an award has been made . . . by a court, the defaulting party

  shall pay the other’s reasonable attorney’s fees and other costs

  incurred in enforcing the provision of this Pre-Annexation

  Agreement.”

¶ 49   Because we conclude that the trial court lacked subject matter

  jurisdiction to consider the plaintiffs’ contract claims, we award Erie

  reasonable attorney fees in prosecuting this appeal under section

  14 of the pre-annexation agreement and section 31-12-116(2)(a)(IV).

  The amount of fees shall be determined by the trial court. See

  C.A.R. 39.1.

                           IV.   Conclusion

¶ 50   The judgment on the plaintiffs’ contract claims is vacated. The

  jury’s award of damages is vacated, and the case is remanded with

  directions to grant Erie’s motion for directed verdict and for a

  determination of the amount of attorney fees incurred by Erie for

  this appeal.

       JUDGE FREYRE and JUDGE NIETO concur.


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