JKHP v. Whipple

23CA1898 JKHP v Whipple 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1898
Eagle County District Court No. 23CV30037
Honorable Paul R. Dunkelman, Judge

JKHP, LLC,

Petitioner-Appellant,

v.

Thomas M. Whipple; NBH Bank; W. Ryland Gardner, III; Teak J. Simonton, in
her official capacity as County Treasurer of Eagle County,

Respondents-Appellees.

ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 12, 2024

Spector Law, LLC, Joel M. Spector, Denver, Colorado; Hamre, Rodriguez,
Ostrander & Prescott, P.C., Donald M. Ostrander, Englewood, Colorado, for
Petitioner-Appellant

JVAM PLLC, Alexander C. Clayden, Lucas F. Van Arsdale, Quentin H. Morse,
Glenwood Springs, Colorado, for Respondent-Appellee Thomas M. Whipple

No Appearance for Respondents-Appellees NBH Bank; W. Ryland Gardner, III;
Teak J. Simonton, in her official capacity as County Treasurer of Eagle County
¶1 In this private condemnation action, petitioner JKHP, LLC,

appeals the district court’s dismissal of its petition to condemn a

private way of necessity across property owned by Thomas M.

Whipple. We affirm and remand the case for the district court to

determine and award Whipple his reasonable appellate attorney

fees and costs.

I. Background

A. The Properties

¶2 This case involves properties that are located on Taylor Hill in

Eagle County. JKHP owns two properties, the Joker Lode (Joker)

and the Logos Lode (Logos). Jason Provalenko is the manager of

JKHP. Whipple owns two properties, the Colorado Mint Lode

(Colorado Mint) and the Big Sunflower Lode (Big Sunflower). As

shown in the site map below, Whipple’s properties bisect the Joker

and Logos properties, creating four quadrants referred to as West

Joker, West Logos, East Joker, and East Logos. Ohio Boy Lode

(Ohio Boy) abuts West Joker and is located west of Colorado Mint.

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¶3 The properties are accessible from Colorado State Highway 24.

Forest Service Road 731, also known as Ten Five Drive, connects

with Highway 24. Ten Five Drive runs through a National

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Monument,1 private property, West Joker, Colorado Mint, Big

Sunflower, East Joker, and East Logos where it then connects with

a spur that connects to Taylor Creek Road, thereby creating a loop.

Forest Service Road 731-1A, also known as Taylor Creek Road or

the Lower Road, is south of Ten Five Drive and runs directly

through the southern portion of Colorado Mint and Big Sunflower.

B. History of Property and Access

¶4 David Faulkenberg acquired title to Joker, Logos, Colorado

Mint, and Big Sunflower in 1980 and 1981. In 1982, Faulkenberg’s

family constructed a cabin on Big Sunflower now owned by

Whipple. To provide access to the cabin, Faulkenberg’s father

extended an existing road spur from a point near the property

between West Joker and Ohio Boy. That road is Ten Five Drive.

Ten Five Drive crosses over Taylor Hill private parcels to reach Ohio

Boy and West Joker, then runs easterly along West Joker and

crosses Colorado Mint, Big Sunflower, East Joker, and East Logos.

Ten Five Drive also crosses a sliver of United States Forest Service

1 The Forest Service Property surrounding the properties at issue

has been designated as a National Monument.
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(USFS) property located between Ohio Boy and West Joker. This

sliver was unknown to the parties until 2022 when it was

discovered by Faulkenberg. The USFS has never challenged the use

of the sliver by any of the property owners.

¶5 Taylor Creek Road intersects with Ten Five Drive west of the

properties. It runs south and east across private property and

federal land managed by the USFS. It then crosses the southern

portions of Colorado Mint and Big Sunflower and another portion of

USFS land. The road then forks, and the left fork goes northeast

and crosses East Logos into East Joker.

¶6 In 1986, Faulkenberg conveyed Colorado Mint and Big

Sunflower to his sister and brother-in-law. In the conveyance deed,

Faulkenberg reserved access easements encompassing the existing

twenty-foot roadways at Ten Five Drive and Taylor Creek Road

burdening Colorado Mint and Big Sunflower and benefitting Joker

and Logos. These access easements are depicted in blue and green

on the site map below and run with the land. On the same date,

Faulkenberg conveyed Joker and Logos to himself and his wife. In

the conveyance deed, Faulkenberg reserved access easements

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encompassing the existing twenty-foot roadways at Ten Five Drive

and Taylor Creek Road burdening Joker and Logos and benefitting

Colorado Mint and Big Sunflower. These access easements are

depicted in red in the site map below and also run with the land.

¶7 We will refer to these easements as the Faulkenberg

Easements.

¶8 In 2002, the previous owners of Joker, Logos, Colorado Mint,

Big Sunflower, and Ohio Boy executed and recorded a Reciprocal

Easement Deed (Easement Deed). The Easement Deed created a

legal and enforceable easement that runs with the land, in the
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location of Ten Five Drive, and runs across Colorado Mint and Big

Sunflower, for access to the Joker and Logos properties. It also

created a legal and enforceable easement that runs with the land, in

the location of Taylor Creek Road, and runs across Colorado Mint

and Big Sunflower, for access to the Joker and Logos properties.

C. Road Variance and Special Use Permit

¶9 In 2017, Provalenko and other property owners in the Taylor

Hill area sought a road variance to facilitate the construction of

residential improvements on their properties. The variance

requested the allowance of roads steeper than the grades

recommended in the Eagle County Land Use Regulations. The Eagle

County Board of County Commissioners granted a “Variance from

Improvement Standards” (Resolution No. 2017-82) conditioned on

the applicants obtaining approval from the USFS for the use of Ten

Five Drive on its property to access private property in the Taylor

Hill neighborhood.

¶ 10 Provalenko, on behalf of the Taylor Hill Equitable Road Users

Group (THERUG), submitted an “Application for Transportation and

Utility Systems and Facilities on Federal Lands,” seeking an

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easement from the federal government for ingress, egress, and road

maintenance encompassing Ten Five Drive on USFS property. The

USFS granted THERUG’s application, including a private road

special use permit (SUP). In the SUP, the USFS granted THERUG

the right to use and maintain “the existing road (Ten Five Drive) in

current condition, without any expansion, enhancement, or other

improvements, strictly ‘as is, where is’ to access members’ private

inholding parcels.”

D. Events Preceding Immediate Possession Hearing

¶ 11 On February 10, 2023, JKHP, through counsel, sent a letter to

Whipple’s counsel with an offer to acquire a nonexclusive easement

over the southern portion of Whipple’s property near Taylor Creek

Road. Using the 2022 tax assessor’s data, JKHP valued the raw

land on Colorado Mint at $11,228 per acre and the raw land on Big

Sunflower at $12,368 per acre and determined that the value of the

easement was $8,652. However, “to avoid potentially expensive and

time-consuming litigation,” JKHP offered Whipple $20,000 for the

easement. Whipple did not reply to the offer. JKHP then filed this

private condemnation action seeking to condemn the bottom

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portion of Whipple’s property to create a series of switchbacks

(shown in the illustration below), starting in the southwest corner of

Colorado Mint where Taylor Creek Road enters Whipple’s property

and across Big Sunflower, to provide access to West and East Logos

from Taylor Creek Road. JKHP also requested immediate

possession.

E. Immediate Possession Hearing

¶ 12 At the immediate possession hearing, the district court heard

testimony from Provalenko, Whipple, David Faulkenberg, and other

witnesses, and it received numerous exhibits. In a detailed written
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order, the court denied immediate possession, dismissed JKHP’s

petition in condemnation without prejudice, and awarded Whipple

reasonable attorney fees and costs.

¶ 13 Concerning credibility, the court found Provalenko’s testimony

“lacking in credibility and unpersuasive.” In doing so, it noted two

other lawsuits involving the parties and access to the properties,

the parties’ contentious history, and Provalenko’s lack of diligence

in seeking less intrusive options. Thus, it found it could not make

findings of necessity based solely on Provalenko’s testimony. The

district court noted the same credibility concerns with Whipple’s

testimony, but acknowledged the impact of that finding was

different since Provalenko had the initial burden of proof.

¶ 14 Turning to the remaining evidence, the district court first

found that the jurisdictional prerequisite of “failure to agree,” which

requires “good faith negotiations,” was satisfied by Provalenko’s

offer to purchase the easement from Whipple and Whipple’s

non-response to the offer. The parties do not contest this finding.

¶ 15 Next, the court found that private ways of necessity satisfy the

public purpose requirement, and that, subject to proving necessity,

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the proposed condemnation furthered a public use and public

purpose by providing access for residential and agricultural

development on Provalenko’s properties.

¶ 16 Concerning the remaining evidence of necessity and need for

immediate possession, the court found that JKHP’s action was

premature and that JKHP had not proved necessity. First, it noted

that private ways of necessity constitute a “remedy of last resort”

and that JKHP’s properties were not landlocked. Then, relying on

the Faulkenberg Easements and the Easement Deed, the court

found that JKHP has legal access to its properties in the form of

easements over Ohio Boy, Colorado Mint, and Big Sunflower, and

legal access to West Logos through USFS property off Taylor Creek

Road, even if no road currently exists. Moreover, the court could

not find, based on Provalenko’s testimony, that a private way of

necessity was reasonably necessary under the facts and

circumstances of the case. It noted that JKHP had not taken the

steps necessary to show that the existing access was not acceptable

and could not be made acceptable by working with the County and

the USFS.

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¶ 17 On appeal, JKHP contends that the district court erred by (1)

shifting the burden of proof; (2) requiring prerequisites to

condemnation; and (3) dismissing the case without prejudice

instead of simply denying the motion for immediate possession. We

address and reject each contention.

II. Necessity and Burden of Proof

¶ 18 JKHP first contends that the district court improperly shifted

the burden of proving the existence of alternate access, and that the

record shows there are no acceptable alternate access routes to

JKHP’s property. We disagree and conclude that the court found

JKHP did not prove necessity.

A. Standard of Review and Applicable Law

¶ 19 In condemnation proceedings, we defer to the district court’s

findings of fact unless they are so clearly erroneous as to find no

support in the record. Fowler Irrevocable Trust 1992-1 v. City of

Boulder, 17 P.3d 797, 802 (Colo. 2001). We review its legal

conclusions de novo. Id. In private condemnation proceedings,

necessity is a question of fact. See Crystal Park Co. v. Morton, 146

P. 566, 572 (Colo. App. 1915).

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¶ 20 Under the Colorado Constitution, “[p]rivate property shall not

be taken for private use unless by consent of the owner, except for

private ways of necessity . . . .” Colo. Const. art. II, § 14; see also

§ 38-1-102(3), C.R.S. 2024. A way of necessity “is similar in

character to an easement” and “creates a property right to enter

and use another’s land for a specific purpose.” Glenelk Ass’n v.

Lewis, 260 P.3d 1117, 1121 (Colo. 2011). Specifically, a way of

necessity is a passageway or roadway that provides “legal access

connecting landlocked property to a public road.” Akin v. Four

Corners Encampment, 179 P.3d 139, 144 (Colo. App. 2007); see also

West v. Hinksmon, 857 P.2d 483, 486 (Colo. App. 1992) (Private

ways of necessity “include ways for reasonable and practical access

to property otherwise isolated.”). Condemnation of a private way of

necessity is a “remedy of last resort.” State Dep’t of Highways v.

Denver & Rio Grande W. R.R. Co., 789 P.2d 1088, 1091 (Colo. 1990).

¶ 21 Further, because condemnation of a private way of necessity is

in derogation of private property rights, courts “strictly construe

private condemnation law against the condemnor.” Glenelk Ass’n,

260 P.3d at 1121. Any uncertainties or ambiguities in the law or

12
regarding the scope of the power to condemn must be resolved in

favor of the condemnee landowner. Id. at 1120; Akin, 179 P.3d at

144.

¶ 22 In a private condemnation action, the prospective condemnor

must prove a necessity for the proposed easement. Glenelk Ass’n,

260 P.3d at 1121-22; Tieze v. Killam, 179 P.3d 10, 13 (Colo. App.

2007). A private condemnation is necessary if it is “indispensable

to the practical use of the property for which [it is] claimed.”

Glenelk Ass’n, 260 P.3d at 1123 (quoting Crystal Park Co., 146 P. at

569). The condemnor’s necessity need not be absolute, but the way

must be “reasonably necessary under the facts and circumstances

of the case.” West, 857 P.2d at 487 (potential condemnor proved

necessity because property was landlocked without public ingress

or egress); see also Tieze, 179 P.3d at 13 (potential condemnor

proved necessity because property was approved for residential use

and was landlocked).

¶ 23 Once a prospective condemnor establishes necessity for a

private way of access, the party seeking to avoid condemnation

must prove an alternate route exists, and the potential condemnors

13
have a present enforceable right to use it. Glenelk Ass’n, 260 P.3d

at 1122; Tieze, 179 P.3d at 13.

B. Analysis

¶ 24 We conclude the district court did not improperly shift the

burden of proof to JKHP because JKHP failed to prove necessity. “If

a prospective condemnor possesses an enforceable right to use an

accessible alternate route of access then [the] condemnor cannot

establish necessity.” Glenelk Ass’n, 260 P.3d at 1122.

¶ 25 While Provalenko testified that he intended to use the private

access to develop his property for both residential and agricultural

purposes and that the equipment necessary to further such

development could not travel on the existing roads, he presented

nothing beyond his testimony to establish these facts. And given

the court’s credibility findings, we may not consider this testimony.

See Mariani v. Rocky Mountain Hosp. & Med. Serv., 902 P.2d 429,

436 (Colo. App. 1994), aff’d, 916 P.2d 519 (Colo. 1996).

¶ 26 Additionally, Provalenko testified that a portion of Ten Five

Drive has a twenty-eight percent grade and does not meet Eagle

County’s Land Use Regulations. However, Provalenko did not

14
present any evidence from Eagle County that the road was

unacceptable. Moreover, the record shows that Provalenko

previously sought and obtained a grade variance from the County

and the USFS, and that he has taken no steps to determine

whether such variances can be obtained for the existing roads.

Again, we may not consider his testimony or substitute our

judgment for the district court’s. See Target Corp. v. Prestige Maint.

USA, Ltd., 2013 COA 12, ¶ 24 (“We may not . . . substitute our

judgment for the trial court’s.”).

¶ 27 Similarly, Provalenko testified that he lacked access to East

Joker and East Logos via Ten Five Drive because the road crosses a

sliver of USFS land. But Provalenko did not present any evidence

that the USFS actually owns the land or that it objected to

Provalenko’s use of Ten Five Drive. To the contrary, the record

shows that Provalenko and Whipple regularly traversed Ten Five

Drive without objection by the USFS.

¶ 28 We are not persuaded otherwise by JKHP’s reliance on Tieze or

West because in both cases, the condemnor’s property was

landlocked and no legal access existed. In contrast, the

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nontestimonial record here shows that access to the East Joker and

East Logos properties via Ten Five Drive and Taylor Creek Road

across Whipple’s property has existed since the 1980s. It also

shows that Provalenko owns and accesses a small cabin on West

Logos from the house he constructed on West Joker. While JKHP

claims Provalenko’s unrebutted testimony shows that it would be

impractical to access West Logos via Taylor Creek Road or to

construct a road from West Joker to West Logos, the district court

declined to credit Provalenko, so we may not consider this

unrebutted testimony. Mariani, 902 P.2d at 436. Moreover, we are

not convinced that the land use regulations themselves, without

more, establish impracticality, particularly given record evidence

showing a previous variance grant and a willingness by the USFS to

work with the Taylor Hill property owners.

¶ 29 Finally, Provalenko offered no other evidence, beyond his

testimony, to show that his property is inaccessible. Therefore, we

agree with the district court that JKHP failed to establish necessity

and thus, that the district court did not need to address whether

Whipple had shown that an acceptable alternate route of access

16
exists. And because necessity was not proven, we further conclude

that any error in the court’s application of the burden of proof

beyond necessity is harmless.

¶ 30 Accordingly, we affirm the court’s ruling.

III. Prerequisites to Condemnation

¶ 31 JKHP next contends that the district court erroneously (1)

required JKHP to seek permits and variances from governmental

authorities as a prerequisite to condemnation, and (2) failed to

properly apply Glenelk Ass’n by requiring it to file a building

application as a prerequisite to condemnation. We are not

persuaded.

A. Standard of Review and Applicable Law

¶ 32 In condemnation proceedings, we review legal conclusions de

novo. Fowler Irrevocable Trust 1992-1, 17 P.3d at 802. Necessity is

a question of fact. Glenelk Ass’n, 260 P.3d at 1120. The district

court’s findings of fact are reviewed for clear error. Id. A district

court’s factual finding is clearly erroneous if it lacks record support.

In re Parental Responsibilities Concerning S.Z.S., 2022 COA 105, ¶

11.

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B. Analysis

¶ 33 JKHP contends that the district court erred by requiring JKHP

to seek alternate access, including asking the USFS and the County

about access from Taylor Creek Road, and to be denied such access

as a prerequisite to condemnation. We disagree because the record

shows that the district court considered JKHP’s failure to engage

with any of the relevant governmental authorities as part of the

factual reasons for finding that it failed to prove necessity. Indeed,

Colorado courts consider the position of governmental authorities in

determining whether a condemnation may proceed. See Glenelk

Ass’n, 260 P.3d at 1119-24 (considering Jefferson County’s

determination on the proposed condemnation and concluding that

the petitioner failed to meet his burden because he failed to

sufficiently engage the County land use approval process prior to

initiating the condemnation proceeding); Tieze, 179 P.3d at 13

(considering Summit County’s determination on the proposed

condemnation). Therefore, we reject JKHP’s assertion that the

court required it to seek alternate access as a prerequisite to

condemnation and instead, view the court’s mention of JKHP’s

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decision not to engage government agencies as a factual finding

that weighed against a finding of necessity.

¶ 34 We apply the same reasoning to JKHP’s argument that the

district court erroneously required it to submit a building

application with Eagle County as a prerequisite to condemnation.

JKHP relies on Glenelk Ass’n to argue that it demonstrated a

purpose for the condemnation through Provalenko’s testimony that

he intended to build a house on East Logos. See Glenelk Ass’n, 260

P.3d at 1119 (“[W]hen a petitioner seeks to condemn a private way

of necessity for access to property it wishes to develop in the future,

it must demonstrate a purpose for the condemnation that enables

the trial court to examine both the scope of and necessity for the

proposed condemnation, so that the burden imposed on the

condemnee’s property may be ascertained and circumscribed

through the trial court’s condemnation order.”). But we conclude

that Glenelk Ass’n supports the court’s ruling. In Glenelk Ass’n, the

supreme court affirmed the district court’s dismissal of the

condemnation petition and found that the petitioner failed to prove

necessity by presenting a vague and undefined concept for

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development without sufficiently engaging the land use approval

process. Id. at 1119-20.

¶ 35 Here, the only evidence of future development came from

Provalenko’s testimony, which the court declined to credit. And

contrary to JKHP’s argument, the court’s order did not require a

building permit as a prerequisite to condemnation, but instead,

showed that the absence of any attempt to acquire such a permit

weighed against a finding of necessity.

¶ 36 Finally, we are not persuaded that the court erred in finding

that JKHP failed to do its due diligence. The court found that

Provalenko’s testimony lacked credibility. Therefore, its findings

that Provalenko lacked concrete development plans, despite his

testimony to the contrary, is supported by the record.

IV. Dismissal of Case

¶ 37 JKHP last contends that the district court erroneously

dismissed the case without prejudice rather than denying the

motion for immediate possession. We disagree.

A. Standard of Review and Applicable Law

¶ 38 In condemnation proceedings, we review legal conclusions de

novo. Fowler Irrevocable Trust 1992-1, 17 P.3d at 802. A private
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condemnation action is a special statutory proceeding that must be

conducted in accordance with the eminent domain statutes. Bly v.

Story, 241 P.3d 529, 534 (Colo. 2010). It proceeds in two parts: (1)

an immediate possession hearing, and (2) a valuation trial. See Bd.

of Cnty. Comm’rs v. DPG Farms, LLC, 2017 COA 83, ¶ 4.

¶ 39 Section 38-1-105(6)(a), C.R.S. 2024, governs the immediate

possession hearing and provides in relevant part:

At any stage of such new proceedings or of any
proceedings under this article, the court, by
rule in that behalf made, may authorize the
petitioner, if already in possession, to use,
and, if not in possession, to take possession of
and use, said premises during the pendency
and until the final conclusion of such
proceedings and may stay all actions and
proceedings against such petitioner on
account thereof, if such petitioner pays a
sufficient sum into court, or to the clerk
thereof, to pay the compensation in that behalf
when ascertained.

¶ 40 Thus, the court must determine whether the petitioner is

entitled to immediate possession and if so, the amount of the

deposit to be posted.

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¶ 41 Other statutes relevant to immediate possession include

sections 38-1-109, C.R.S. 2024, and 38-1-105(1). Section 38-1-109

provides, in relevant part:

[A]t the hearing provided for in section
38-1-105, the court shall hear and dispose of
all objections that may be raised touching the
legal sufficiency of the petition or cross petition
or the regularity of the proceedings in any
other respect.

¶ 42 Further, section 38-1-105(1) states that “[t]he court shall hear

proofs and allegations of all parties interested touching the

regularity of the proceedings and shall rule upon all objections

thereto.”

¶ 43 When a motion for immediate possession is denied on grounds

that go to “the core” of the asserted right to condemn, dismissal of

the case is proper. Coquina Oil Corp. v. Dist. Ct., 623 P.2d 40, 42

(Colo. 1981).

B. Analysis

¶ 44 We conclude that the district court properly applied the

condemnation statute in dismissing the petition. The court found

that JKHP was not authorized to condemn a private way of

necessity. In doing so, the court “hear[d] and dispose[d] of all

22
objections that may be raised touching the legal sufficiency of the

petition.” § 38-1-109; see also Shaklee v. Dist. Ct., 636 P.2d 715,

718 (Colo. 1981) (vacating the district court’s immediate possession

order entered without considering the public use and necessity

issues and holding that the district court needed to resolve all

issues before awarding immediate possession); Glenelk Ass’n, 260

P.3d at 1119-20 (affirming the district court’s dismissal of the

petition when petitioner failed to prove necessity). And because the

district court’s ruling went to “the core” of JKHP’s asserted right to

condemn, dismissal without prejudice was proper. Coquina Oil

Corp., 623 P.2d at 42.

V. Attorney Fees

¶ 45 Whipple requests his attorney fees under C.A.R. 39 and 39.1,

and section 38-1-122(1), C.R.S. 2024.

¶ 46 Section 38-1-122(1) 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.

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¶ 47 A respondent who successfully defends a failed condemnation

hearing on appeal is also entitled to their appellate attorney fees.

Akin, 179 P.3d at 147-48.

¶ 48 Additionally, C.A.R. 39.1 provides the appellate court with the

discretion to determine the amount of an award for attorney fees on

appeal or to remand for a determination of those issues by the

district court. Accordingly, we exercise our discretion and remand

the case to the district court to determine and award Whipple his

reasonable costs and attorney fees on appeal.

VI. Disposition

¶ 49 The order is affirmed, and the case is remanded for the district

court to determine and award Whipple his reasonable appellate

attorney fees and costs.

JUDGE GROVE and JUDGE LUM concur.

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