Walton v. Brooks

23CA1763 Walton v Brooks 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1763

Montrose County District Court No. 23CV10

Honorable Mary E. Deganhart, Judge

Elizabeth C. Walton,

Plaintiff-Appellee,

v.

Cynthia Brooks,

Defendant-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART

Division VI

Opinion by JUDGE SCHUTZ

Freyre and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 5, 2024

Chris Mahre & Associates, Chris Mahre, Grand Junction, Colorado, for

Plaintiff-Appellee

Cynthia Brooks, Pro Se

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¶ 1 Cynthia Brooks appeals the district court’s order granting

Elizabeth C. Walton her attorney fees and costs incurred in a

forcible entry and detainer action (FED). We reverse the award of

attorney fees and affirm the award of costs.

I. Background

¶ 2 Walton is Brooks’s daughter. A dispute arose between them

concerning their competing rights to possess certain property

located in Naturita. Eventually, Walton initiated an FED action

against Brooks, which resulted in the district court entering a

judgment of possession in favor of Walton and against Brooks. In a

separate appeal, Walton v. Brooks, (Colo. App. No. 23CA1555, Sept.

5, 2024) (not published pursuant to C.A.R. 35(e)), we set forth the

circumstances surrounding the parties’ dispute and affirm the

district court’s judgment for possession.

¶ 3 After entering the judgment for possession, the district court

awarded Walton her costs and attorney fees incurred in the

litigation. Brooks appeals both awards, which we now address.

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II. Analysis

A. Additional Facts and Applicable Law

¶ 4 Walton timely submitted her motion for an award of her

attorney fees and costs, which was supported by an affidavit from

her attorney. Walton claimed that she was entitled to an award of

attorney fees under section 13-40-123, C.R.S. 2024:

The prevailing party in any action brought

under the provisions of this article is entitled

to recover damages, reasonable attorney fees,

and costs of suit; except that a residential

landlord or tenant who is a prevailing party

shall not be entitled to recover reasonable

attorney fees unless the residential rental

agreement between the parties contains a

provision for either party to obtain attorney fees.

(Emphasis added.) The General Assembly added the highlighted

language to the statute in 2008. Ch. 387, sec. 2, § 13-40-123,

2008 Colo. Sess. Laws 1819-20.

¶ 5 Walton acknowledged that, as noted in the highlighted text,

the statute limits a residential landlord’s recovery of attorney fees in

an FED action to situations in which the parties’ residential rental

agreement contains a fee-shifting provision. But Walton did not

produce or allege a rental agreement between the parties that

contained a reciprocal prevailing party attorney fees provision.

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¶ 6 As she did in the district court, Walton asserts on appeal that

Schuler v. Oldervik, 143 P.3d 1197 (Colo. App. 2006), “makes clear

that this statute does not foreclose an award of fees when the court

must first determine ownership of the property prior to awarding

[the] right of possession.” As discussed more fully below, Schuler

relied on the 2005 version of section 13-40-123 to award attorney

fees to plaintiffs who successfully brought an FED action in which

their claim for possession was based on adverse possession.

Schuler, 143 P.3d at 1204.

¶ 7 Brooks timely responded to the motion for attorney fees.

Though she did not contest the reasonableness of the claimed fees,

Brooks argued, as she does on appeal, that the Schuler decision is

factually and legally distinguishable, and that an award of attorney

fees in this case was unwarranted.

¶ 8 The district court awarded Walton $10,318 for attorney fees

and $517.67 for costs after finding that Brooks failed to “state any

objection to the reasonableness or necessity of attorney fees

requested.” With respect to the legal basis for the award, the

district court reasoned: “Walton is entitled to an award of attorney

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fees and costs incurred in this action” pursuant to “the authority

contained at” section 13-40-123 and Schuler.

B. Standard of Review

¶ 9 We review an award of attorney fees for an abuse of discretion.

In re Estate of Fritzler, 2017 COA 4, ¶ 24. An abuse of discretion

occurs when the district court’s decision is manifestly arbitrary,

unreasonable, or unfair, or misapplies the law. Id. at ¶ 6.

C. Application

¶ 10 We agree with Brooks that Schuler is factually distinguishable

from this case, and we also agree that Schuler is legally

distinguishable, albeit on somewhat different grounds than those

Brooks argued. First, as to the factual distinctions, in Schuler the

plaintiffs brought an FED action against a neighbor. 143 P.3d at

1199. The dispute centered on a strip of land along the properties’

common boundary. Id. Legal title to the disputed land was in the

defendants’ names, but the plaintiffs claimed ownership of the

property — and hence, the right of possession — by adverse

possession. Id. Thus, resolution of the claim in Schuler required

the division to first determine whether the plaintiffs had established

their adverse possession claim.

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¶ 11 Walton and her sister, Kathryn Herland

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, in contrast to the

plaintiffs in Schuler, had record title to the disputed property. Their

FED complaint was based on their record title and the theory that

Brooks was a tenant at will who could be evicted at any time.

Brooks asserted that she owned the property by adverse possession

and therefore could not be evicted. But because Brooks failed to

appear for the FED possession hearing, the district court was not

required to formally resolve her adverse possession claim because

she presented no evidence. Thus, unlike in Schuler, the claim of

adverse possession was not resolved incident to Walton and

Herland’s claim for possession.

¶ 12 Despite these factual differences, reasonable minds could

debate whether Schuler’s rationale extends to the present situation.

But here is where the legal distinction between the two cases

becomes critical. Recall that in 2006, when the division decided

Schuler, it applied the existing FED attorney fee provision. Id. at

1204. At that time, section 13-40-123 allowed a prevailing party in

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Herland was a plaintiff in district court; however, the attorney fees

and costs award was made solely in favor of Walton. Thus, Herland

is not a party to this appeal.

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an FED action to recover attorney fees without qualification. § 13-

40-123, C.R.S. 2005. In 2008, however, the General Assembly

amended the statute to add the final clause specifying that “a

residential landlord or tenant who is a prevailing party shall not be

entitled to recover reasonable attorney fees unless the residential

rental agreement between the parties contains a provision for either

party to obtain attorney fees.” Ch. 378, sec. 2, § 13-40-123, 2008

Colo. Sess. Laws 1819-20.

¶ 13 Returning to the undisputed facts of this case, Walton brought

the FED action in 2023. Her claim for attorney fees was premised

on the version of section 13-40-123 containing the language that

the General Assembly added to the statute in 2008. Walton did not

allege that the lease agreement with Brooks contained a provision

permitting the prevailing party to recover attorney fees. Absent

such a provision, section 13-40-123 precludes Walton from

recovering her attorney fees in this action. Therefore, we reverse

the district court’s award of attorney fees in favor of Walton.

However, as the prevailing party, Walton is entitled to an award of

her costs. Id.

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III. Disposition

¶ 14 We reverse the district court’s award of attorney fees in

Walton’s favor but affirm its cost award of $517.67.

JUDGE FREYRE and JUDGE LIPINSKY concur.