Board of Commissioners v. Eason

No. 96CA1888 Board of Commissioners, County of Boulder, Plaintiff-Appellant v. Robert Eason Defendant-Appellee April 16, 1998 Appeal from the District Court of Boulder County Honorable Morris W. Sandstead, Jr., Judge No. 93CV1157 Division IV H. Lawrence Hoyt, County Attorney, C. Jan Rundus, Assistant County Attorney, Boulder County Attorney's Office, for Plaintiff-Appellant French & Stone, P.C., Joseph C. French, David M. Haynes, for Defendant-Appellee Opinion by JUDGE NEY         In this action concerning defendant's use of his real property, plaintiff, Board of County Commissioners, County of Boulder (Board), appeals the trial court's award of attorney fees to defendant, Robert Eason, pursuant to 42 U.S.C. §1988 (1994) and §13-17-101, et seq., C.R.S. 1997. Attorney fees were awarded to defendant based on findings that plaintiff had denied defendant his due process rights and brought against him a bad faith, abusive, substantially groundless, frivolous, and vexatious claim. We reverse the award under §1988 and vacate the award under §13-17-101 et seq. and remand for additional findings.
        Defendant owns real estate which is zoned for commercial use. In 1988, he inquired of the Boulder County Land Use Department regarding his proposal to use semi-trailers as commercial storage facilities on his property. In response, the chief building officer informed defendant that his proposed use qualified as "open storage," a permitted use on commercial-zoned property. Defendant's use was approved subject to certain restrictions, with which defendant only partially complied when he opened his self-storage business in 1991.
        In 1993, the Board informed defendant that his business violated the Boulder County Zoning Resolution because the use of inoperable and unlicensed vehicles for storage was not a permitted use within the commercial zone. Defendant was ordered to remove his trailers within thirty days or face legal consequences.
        Defendant refused to comply and the Board filed this enforcement action seeking a declaratory judgment and injunctive relief to compel defendant to remove the trailers from his property.
        Defendant denied any wrongdoing and asserted as an affirmative defense that, to the extent the Board was successful in obtaining the relief sought against him, he would be deprived of due process of law.
        At the close of the Board's case, the trial court entered an order dismissing the Board's complaint and found that defendant's use of semi-trailers was lawful under the zoning ordinance and building codes, that it was a use-by-right, that the land use department was creating its own arbitrary standards, and that the Board had violated defendant's due process rights by reinterpreting a zoning ordinance without notice or a hearing.
        Defendant moved for attorney fees, which the court awarded based on findings that, as a matter of fact and law, a due process violation had occurred and that, therefore, attorney fees were justified under 42 U.S.C. §1988. The court alternatively awarded attorney fees under §13-17-101, et seq., based on its finding that the Board's action against defendant constituted a bad faith claim which was substantially frivolous, groundless, and vexatious.
        In an appeal on the merits of the declaratory judgment, the Board argued that the trial court had erred in dismissing its action to enjoin defendant's use of his property based on a finding that defendant had been denied due process. However, a division of this court affirmed the judgment. Board of County Commissioners v. Eason, (Colo. App. No. 95CA2207, May 15, 1997)(not selected for official publication) (Eason I).
        Defendant subsequently brought a civil rights action against the Board for damages pursuant to 42 U.S.C. §1983 (1994) based on the same facts and occurrences. The trial court dismissed on the basis of res judicata, stating that the §1983 damages should have been sought in the declaratory judgment action. Defendant appealed, and a division of this court concluded that because the §1983 claim had not been litigated in the declaratory judgment action, it was not barred by res judicata, and it therefore remanded the §1983 claim to the trial court for trial on the merits of that claim. Eason v. Board of County Commissioners, P.2d (Colo. App. No. 96CA1691, December 26, 1997) (Eason II).
        In July 1997, the same division of this court which decided the appeal of the declaratory judgment action issued a post-opinion order stating that the appeal on the merits was not frivolous but that the determination of the trial court's finding that the original declaratory judgment action was frivolous would be reviewed by this division during the disposition of the award of attorney fees presently before us. Therefore, we consider here the issues of whether the attorney fees in the original case were properly awarded under either 42 U.S.C. §1988 or §13-17-101, et seq.

I.         The Board argues that defendant did not litigate a §1983 claim and is not, therefore, entitled to an award of attorney fees pursuant to §1988. Defendant agrees that the declaratory judgment action was not a §1983 action, but argues that the finding of a due process violation fulfills the elements of a §1983 claim and therefore supports an award for §1988 attorney fees. We are not persuaded.
        The Board argues that defendant neither pre-trial nor during trial referred to 42 U.S.C. §1983, nor requested attorney fees pursuant to 42 U.S.C. §1988. In his answer, defendant makes a demand for attorney fees only under §13-17-101, et seq., and C.R.C.P. 11. However, defendant does refer to §§1983 and 1988 among the "points of law" in his supplemental disclosure certificate, and specifically raises these sections in his post-trial motion for attorney fees.
        We recognize that under Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140 (1973), a party may seek in a subsequent action remedies not awarded in the declaratory judgment action. However, we conclude that this subsequent action cannot be a motion for attorney fees based on a claim never raised in the action. Rather, Atchison contemplates an action such as Eason II which fully explores the §1983 claim and determines whether a right to relief under §1983 has been established.
        In the motion for attorney fees, defendant asserts that the trial court's finding of a due process violation supports a §1988 award of attorney fees because the finding of a due process violation satisfies the elements of a §1983 claim. However, defendant ignores the fact that he alleged a due process violation would occur only if the court were to grant any of the relief requested by the Board, which the court did not do.
        Under 42 U.S.C. §1988, a court may, in its discretion, award reasonable attorney fees as part of the award of costs to a prevailing party in an action to enforce 42 U.S.C. §1983.
        That statute provides in pertinent part:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
        In light of this statutory wording, we conclude that the findings of "due process violations as a matter of fact" and "as a matter of law" by the trial court are an insufficient basis to trigger a §1988 award of fees because §1983, the predicate for attorney fees under §1988, was not properly raised or litigated during the declaratory judgment action.

II.         The Board argues that the trial court abused its discretion in awarding attorney fees for claims lacking substantial justification to defendant under §§13-17-102 and 13-17-103, C.R.S. 1997, and failed to make findings that would permit meaningful appellate review. We agree that the trial court did not make sufficient findings.
        To prevail in a claim for attorney fees pursuant to §13-17-102, C.R.S. 1997, defendant has the burden of proving by a preponderance of evidence that the Board's claims lacked "substantial justification." Section 13-17-102(2), C.R.S., 1997; Board of County Commissioners v. Auslaender, 745 P.2d 999 (Colo. 1987). "Substantial justification" is defined by the statute as "substantially frivolous, substantially groundless, or substantially vexatious." Section 13-17-102(4), C.R.S. 1997.
        The decision to award attorney fees on the basis that a claim lacks substantial justification is committed to the sound discretion of the trial court. Engel v. Engel, 902 P.2d 442 (Colo. App. 1995).
        An award of attorney fees for instituting a frivolous, groundless, or vexatious action will not be disturbed on appeal if supported by the evidence, Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989), unless the court has abused its discretion in making the award. Schmidt Construction Co. v. Becker-Johnson Corp., 817 P.2d 625 (Colo. App. 1991).
        A claim is frivolous if the proponent can present no rational argument based on the evidence or law in support of the claim. See Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984).
        A claim is groundless if the allegations in the complaint, while sufficient to survive a motion to dismiss for failure to state a claim, are not supported by any credible evidence. See Western United Realty, Inc. v. Isaacs, supra.
        A vexatious claim is one brought or maintained in bad faith. Bockar v. Patterson, 899 P.2d 233 (Colo. App. 1994). Bad faith may include conduct which is arbitrary, vexatious, abusive, or stubbornly litigious, and may also include conduct aimed at unwarranted delay or disrespectful of truth and accuracy. See Western United Realty, Inc. v. Isaacs, supra.
        In determining if an award of attorney fees is warranted and in assessing the amount of such fees under §13-17-102, the trial court is required to make findings based on the relevant factors set out in §13-17-103(1) to permit meaningful appellate review of its disposition. Also, conclusory statements that a claim is frivolous, groundless, or vexatious are insufficient for purposes of appellate review and inadequate to satisfy the statutory requirement of specificity. See In re Marriage of Aldrich, 945 P.2d 1370 (Colo. 1997).
        The record reflects that, after listening to arguments of counsel, the court adopted the statements of defense attorneys as its findings and then granted attorney fees based on those findings. Because the trial court itself articulated no findings based on the factors set forth in §13-17-103(1), and the attorneys' statements span many subjects, we cannot discern from the record which of the findings the court relied on to reach its determination. Accordingly, remand is required to permit the court to enter its findings premised on the factors set forth in §13-17-103(1). See In re Marriage of Aldrich, supra.
        Insofar as the order awarding attorney fees is premised on 42 U.S.C. §1988, it is reversed. Insofar as it is premised on §13-17-101, et seq., C.R.S. 1997, the order is vacated and the cause is remanded for further proceedings consistent with this opinion.
        JUDGE VOGT concurs.
---------------         JUDGE RULAND dissents.
        JUDGE RULAND dissenting.
        Because I conclude that defendant's claim for attorney fees under 42 U.S.C. §1983 and §1988 was asserted in full compliance with applicable rules, I respectfully dissent.
        C.R.C.P. 57(h) specifically provides that either party may seek "further relief based on a declaratory judgment or decree whenever necessary or proper." Consistent with the express language of the rule, this provision has been relied upon by a claimant previously to assert a claim for fees under §1983 and §1988 subsequent to entry of a declaratory judgment. See Subryan v. Regents of University of Colorado, 789 P.2d 472 (Colo. App. 1989). It has been properly relied upon to assert a post-decree claim for fees under other legal theories as well. See Agee v. Trustees of the Pension Board, 33 Colo. App. 268, 518 P.2d 301 (1974); see also C.R.C.P. 121, §1-22 (an award of fees based upon a statute may be requested by motion within 15 days after entry of the judgment).
        Here, there is no contention that defendant's post-trial motion was either untimely or deficient in pleading a claim for fees under §1983 and §1988. And, as noted by the majority, the determination that the county's actions constituted a due process violation has been affirmed. Finally, as the division held in Eason v. Board of County Commissioners, P.2d (Colo. App. No. 96CA1691, December 26, 1997)(Eason II) assertion of a post-decree damage claim under §1983 is proper under Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140 (1973).
        Under these circumstances, I conclude that the fee award under §1988 must be affirmed. In my view, to require the claim for fees to be asserted prior to entry of the declaratory judgment contravenes the express language of C.R.C.P. 57(h) and is inconsistent with the analysis and holding in Eason II.         As a result of the foregoing, I also conclude that it is unnecessary to address the adequacy of the trial court's findings under §13-17-101 et seq., C.R.S. 1997.