May 19, 2019

Tenth Circuit: Settling Defendant Has No Interest in Attorney Fee Award from Class Coffers

The Tenth Circuit Court of Appeals issued its opinion in Tennille v. Western Union Co. on Tuesday, November 17, 2015.

A class of plaintiffs challenged Western Union’s business practice of retaining funds from failed wire transfers and collecting interest on the failed transfer moneys without informing the parties to the transfer of its failure. After years of litigation, the class reached a settlement wherein Western Union would deposit the unredeemed customer money into a class settlement fund (CSF), less administrative fees, from which class members could receive a refund. Counsel for the plaintiff class then sought attorney fees, requesting 30% of the $135 million in the CSF. Western Union objected, and the district court referred the matter to a magistrate judge.

The magistrate judge determined that Western Union had no right to object to the attorney fee award but addressed many of the issues raised by Western Union in considering the reasonableness of the attorney fee award. The magistrate judge agreed with Western Union’s central contention that the money in the CSF did not represent the benefit counsel obtained for the class because that money belonged to class members. The magistrate judge calculated the actual benefit to the class as $65 million and recommended that the attorney be awarded 35% of that common fund. Both parties objected to the magistrate judge’s recommendation.

The district court also expressed doubts about Western Union’s standing to challenge the attorney fee award, but it allowed Western Union to participate in the objection hearing. The district court ultimately determined that the CSF was the value to the plaintiffs and awarded 30% of the CSF to class counsel as attorney fees. Western Union appealed.

The Tenth Circuit first addressed class counsel’s argument that Western Union lacked standing to bring the appeal. The Tenth Circuit noted that generally, settling defendants in class actions lack standing to challenge fee awards when those fees are to be paid from the class recovery. Western Union argued it would be injured in this case because of its “reversionary interest” in the CSF. The terms of the settlement provided that if there were moneys left in the CSF after all class members who came forward had been paid, they would escheat to the states in a cy pres fund, and then if any states challenged their share of the moneys, that state’s pro rata share would be deposited in a third fund from which Western Union would be entitled to claim actual costs and fees associated with defending the states’ claims. Western Union claimed that, because of the potential for it to receive reimbursement through the third fund, it had an interest in the attorney fee award from the CSF. The Tenth Circuit disagreed. The Tenth Circuit noted that Western Union has never argued that the moneys in the CSF belonged to anyone but the class members, and thus it has no interest that would be invaded by diminution in the CSF. The Tenth Circuit found that Western Union’s interest in the third reversionary was too attenuated to confer a legally protectable interest.

The Tenth Circuit affirmed the district court’s attorney fee award.

Colorado Court of Appeals: Objection to Special Master’s Attorney Fees Waived When Not Timely Asserted

The Colorado Court of Appeals issued its opinion in Laleh v. Johnson on Thursday, January 14, 2016.

Mr. Johnson was appointed special master during the Lalehs’ complex forcible entry & detainer action. Ali and Kahlil Laleh, brothers, each signed engagement agreements with Mr. Johnson, outlining the scope of work and payment obligations. Mr. Johnson incurred attorney fees because the Lalehs’ former attorney refused to honor a subpoena, and billed the brothers for those fees as costs. Although the brothers settled their cases in February 2014, Mr. Johnson continued invoicing the brothers for costs, including his attorney fees, through May 2014. Kahlil Laleh sent a letter to Mr. Johnson in March 2014 expressing concern about his inclusion of attorney fees in his billings.

Although the trial court dismissed the case in February 2014 pursuant to stipulations by the parties, Mr. Johnson expressed concern to the court about his significant unpaid bills and the court issued an order to show cause as to why Mr. Johnson’s bills had not been paid. The court eventually accepted Mr. Johnson’s proposed order regarding the unpaid fees. The brothers appealed, arguing their due process rights were violated by the court’s entry of judgment against them.

The Colorado Court of Appeals found that the trial court’s order was procedurally deficient because it had issued only three days after Mr. Johnson proposed his order, defeating Rule 121’s requirement of a 7-day objection period. The court of appeals vacated the court’s judgment and remanded.

The brothers argued the trial court erred in ordering they pay Mr. Johnson’s attorney fees without express court approval, and in awarding Mr. Johnson’s fees incurred after the litigation settled. The majority disagreed with both contentions. The brothers challenged whether Mr. Johnson had authority to hire counsel, but because they did not object as soon as they learned of counsel’s role, the majority concluded they forfeited any objection, although the preferred option would have been for Mr. Johnson to request permission from the court before hiring counsel. Likewise, the brothers did not object to the first invoice containing a line item for Mr. Johnson’s attorney fees, and the court took this as further indication that they waived any contention. Even though Kahlil Laleh wrote to Mr. Johnson in March 2014 expressing concern about the attorney fees, this was not enough to constitute a sufficient objection.

The brothers also challenged the trial court’s award of post-settlement attorney fees, most of which post-dated Kahlil’s objection to the fees. The court of appeals determined the fees were proper pursuant to the court’s inherent authority. The majority affirmed the trial court’s order for the Lalehs to pay Mr. Johnson’s outstanding fees and costs. The dissent, written by Judge Webb, outlined how he would have disallowed any fees incurred after the parties settled.

Colorado Court of Appeals: Attorney Fee Request Under 42 U.S.C. § 1988 Not Moot

The Colorado Court of Appeals issued its opinion in Libertarian Party of Colorado v. Colorado Secretary of State on Thursday, January 14, 2016.

Two recall election candidates, Gordon Roy Butt and Richard Anglund, requested the Secretary of State’s approval to circulate petitions as successor candidates in a General Assembly recall election. The Secretary denied their petitions as untimely because they were submitted after a deadline in C.R.S. § 1-12-117. The candidates and the Libertarian Party (collectively, “Libertarian Party”) appealed, arguing the Secretary violated their constitutional right to access to the ballot because the statutory deadline conflicted with a later deadline in the Colorado Constitution.

The Libertarian Party asked the court to order the Secretary to accept candidate petitions until the constitutional deadline, requested injunctive and declaratory relief under § 1983, and requested attorney fees under § 1988. In an expedited proceeding, the district court held that the statute conflicted with the constitution and therefore was void and ordered the Secretary to enforce only the constitutional deadline, but did not address the §§ 1983 and 1988 claims. The Colorado Supreme Court denied certiorari.

The Libertarian Party then moved for summary judgment on its §§ 1983 and 1988 claims, but the district court ruled that the federal claims were effectively dismissed when the Libertarian Party failed to file a Rule 59 motion for amended judgment. On appeal, the court of appeals found the § 1983 claim was moot, because the Libertarian Party’s claim for injunctive relief was satisfied by the district court’s original order and the claim for declaratory relief became moot when the General Assembly amended the statute. However, the court of appeals found that the § 1988 claim may have survived. Because the Libertarian Party prevailed on its state law claim, it still may be entitled to attorney fees under § 1988 because its federal claims were joined with its state law claims.

The court of appeals remanded for determination of the Libertarian Party’s § 1988 claim.

Colorado Supreme Court: Fee Award Determined Based on Financial Circumstances at Permanent Orders Hearing

The Colorado Supreme Court issued its opinion in In re Marriage of de Koning on Monday, January 11, 2016.

Divorce—Attorney Fees.

In this divorce action under the Uniform Dissolution of Marriage Act, CRS §§ 14-10-101 to -133, the trial court postponed the attorney fees hearing until months after the permanent orders hearing and issuance of the decree dissolving the marriage. The trial court did not permit the parties to obtain evidence of changed financial circumstances between the issuance of the decree and the attorney fees hearing. The court of appeals reversed, holding that the trial court must determine the attorney fees award based on the parties’ financial circumstances at the time of the hearing on attorney fees.

The Supreme Court reversed the court of appeals’ decision and held that for the purpose of deciding whether to award attorney fees under CRS § 14-10-119, a trial court should consider the parties’ financial resources as of the date of the issuance of the decree of dissolution or the date of the hearing on disposition of property, if such hearing precedes the date of the decree.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: District Court Within Discretion to Deny Late-Filed Motion to Amend Complaint

The Tenth Circuit Court of Appeals issued its opinion in Zisumbo v. Ogden Regional Medical Center on Friday, September 4, 2015.

Raymond Zisumbo worked at Ogden Regional Medical Center (ORMC) as a CT scan technician from March 2005 to October 2009. In 2009, Anthony Rodebush became Zisumbo’s supervisor. About the same time, Zisumbo applied for a promotion to a vacant CT Coordinator position. Rodebush expressed curiosity about why Zisumbo was eager for the promotion, and asked whether he’d ever been fired from other jobs. In response, Zisumbo produced letters from three previous employers to prove he was not fired, which Rodebush filed without reviewing. On September 15, 2009, at a staff pizza party, Rodebush remarked that Zisumbo wanted the CT Coordinator position and invited criticism from Zisumbo’s coworkers about why he was not suited for the job. Later that day, Zisumbo accused Rodebush of treating him differently because Zisumbo is Hispanic. Rodebush informed Zisumbo that he should discuss his concerns with the human resources manager, Chris Bissenden. Zisumbo interpreted this as a threat. Rather than discuss his concerns with Bissenden, Zisumbo filed a complaint with the Utah Antidiscrimination and Labor Division about a week after the pizza party alleging race discrimination, and also contacted ORMC’s ethics line with complaints of race discrimination and unprofessional behavior. ORMC’s record of the call noted only complaints of unprofessional behavior.

Judd Taylor, ORMC’s ethics compliance officer, investigated Zisumbo’s ethics line complaint and met privately with Rodebush during his investigation. He later met with Zisumbo and Rodebush, and the following day issued a written warning to Zisumbo for events that had occurred months earlier. Taylor and Rodebush also reviewed the letters Zisumbo had provided from his previous employers and immediately became suspicious that they were fabricated. On October 8, Rodebush and Taylor gave the letters to Bissenden, who began investigating their authenticity and discovered that at least one letter was falsified. Later that day, Taylor, Bissenden, and Rodebush met with Zisumbo and terminated his employment based on dishonesty because of the falsified letters.

On May 2, 2010, Zisumbo filed this action, alleging a Title VII hostile work environment claim. Six months later, ORMC permitted Zisumbo to amend his complaint to include Title VII claims based on race discrimination, hostile work environment, failure to promote, and discriminatory termination; a Title VII retaliation claim asserting that Zisumbo was fired for complaining about race discrimination; and a state law claim for breach of the duty of good faith and fair dealing. The district court entered a stipulated order setting deadlines for the litigation, including a September 2011 deadline for amending pleadings. However, in January 2012, Zisumbo sought to amend his complaint to add a claim of race discrimination under 42 U.S.C. § 1981. The district court denied his motion. Zisumbo then filed a new lawsuit in the same court alleging the same claims he unsuccessfully sought to add to his previous complaint and moved to consolidate the two actions. The district court dismissed his second complaint, and Zisumbo appealed to the Tenth Circuit. A prior panel of the Tenth Circuit ultimately rejected his “ill-conceived effort to end-run the district court’s decision.”

In the meantime, the district court granted summary judgment to ORMC on Zisumbo’s good faith and fair dealing, hostile work environment, and failure to promote claims. Zisumbo moved for reconsideration and alternatively sought to amend his complaint, which motions the district court denied. Zisumbo’s remaining claims were tried to a jury, which ultimately found against him on his discriminatory termination claim but for him on his retaliatory termination claim. Zisumbo sought back pay up to trial and reinstatement or front pay up to three years, but the district court foreshortened his award based on Zisumbo’s misdemeanor conviction for assaulting his daughter. Both parties sought attorney fees and ORMC moved for judgment as a matter of law on Zisumbo’s retaliatory termination claim. The district court denied ORMC’s motion and awarded attorney fees to Zisumbo, reducing his request based on his limited success in the litigation.

On appeal, the Tenth Circuit first addressed Zisumbo’s claim that the district court abused its discretion by not allowing him to amend his complaint after the September 2011 deadline. Although Zisumbo asserted his lawyer did not realize he could assert the § 1981 claim until January 2012, he possessed all the facts forming the basis of the claim by April 2011. The Tenth Circuit attributed the failure to timely amend his complaint to Zisumbo and found it well within the district court’s discretion to deny the proposed amendment. The Tenth Circuit also found no error in the district court’s grant of summary judgment to ORMC on Zisumbo’s good faith and fair dealing claim, finding that Zisumbo was an at will employee and had no contractual relationship with ORMC to necessitate a duty of good faith and fair dealing.

The Tenth Circuit next addressed ORMC’s cross-appeal regarding the district court’s denial of its renewed motion for judgment as a matter of law on the retaliatory termination claim. ORMC disputed that there was a causal nexus between the employee’s opposition to discrimination and the employer’s adverse action. The Tenth Circuit found ample record support for the nexus, including that Bissenden’s termination decision was made based on more than one of the falsified letters and that she acted together with Taylor and Rodebush in making the termination decision. ORMC also argued that no reasonable jury could have concluded that its decision to terminate Zisumbo was pretextual, but the Tenth Circuit again disagreed, finding that the timing of the termination supported an inference that he was terminated because he complained of discrimination.

Zisumbo also argued the district court erred in denying his request for a punitive damages instruction. The Tenth Circuit found Zisumbo’s proffered cases inapposite, and instead noted that he must show that ORMC, not just its employees, failed to make good faith efforts to comply with Title VII. Because ORMC had well established anti-discrimination policies, trained its managers on those policies, and consistently investigated reports of discrimination, the Tenth Circuit agreed with the district court that punitive damages were inappropriate.

Finally, the Tenth Circuit evaluated Zisumbo’s argument that he should have received more in back pay and front pay or reinstatement. The Tenth Circuit agreed with the district court that ORMC would have terminated Zisumbo based on the misdemeanor assault conviction and therefore it was appropriate to cut off the back pay award after the date Zisumbo pleaded guilty to the charge. The Tenth Circuit likewise approved of the method used by the district court to calculate the back pay award. The Tenth Circuit also approved of the district court’s reduction of the attorney fee award based on Zisumbo’s limited success in litigation.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Attorney Fee Award Appropriate as Sanction for Bad Faith Conduct

The Tenth Circuit Court of Appeals issued its opinion in Farmer v. Banco Popular of North America on Tuesday, June 30, 2015.

George Farmer, a licensed Colorado attorney, was personal representative of his father’s estate. Banco Popular demanded that Farmer pay off the entire amount of a $150,000 HELOC his late father obtained on his home. Eventually, Banco and Farmer reached a settlement agreement, where Banco would pay Farmer $30,000 and forgive some of the loan principal and Farmer would pay Banco  $137,380.94 in satisfaction of the HELOC. However, Farmer never signed the settlement agreement, and continued to vexatiously litigate terms of the agreement. Eventually, the dispute reached the Tenth Circuit, and the Circuit ordered the enforcement of the district court’s order for the parties to pay according to the terms of the settlement agreement. The Tenth Circuit admonished Farmer and directed the district court that it could exercise its authority in imposing punitive sanctions for further delays caused by Farmer.

When Banco returned to the district court to enforce the order, Farmer paid the $137,380.94, and Banco renewed its motion for attorney fees and costs under 28 U.S.C. § 1927. The district court awarded $41,461.76 in attorney fees and $11,617.77 in costs to Banco, excluding fees and costs related to Farmer’s first appeal, and Farmer appealed the district court’s order.

The Tenth Circuit first dismissed Farmer’s frivolous argument that the district court lacked subject matter jurisdiction over the matter following remand. Farmer’s first appeal was interlocutory, and the district court’s attorney fee judgment was a punitive sanction issued prior to final judgment. The district court thus retained jurisdiction over the matter on remand.

Farmer next argued that Banco waived its right to attorney fees in the settlement agreement. The Tenth Circuit, noting it doubted the parties anticipated the “tortuous” litigation that would follow, found the attorney fee and cost award was a punitive sanction and the court’s inherent power to fashion punitive sanctions for bad faith conduct was inherent and could not be waived by agreement of the parties. Reviewing the award itself for abuse of discretion, the Tenth Circuit found none. The tone and substance of Farmer’s motions suggested a deep disrespect for the court and its authority. Farmer’s conduct vexatiously multiplied the proceedings, implying bad faith. The Tenth Circuit found ample record justification for the punitive sanctions. Farmer requested the Tenth Circuit remand the matter to the district court for a detailed list of bad faith conduct pursuant to § 1927, but the Tenth Circuit declined to do so, finding that the district court’s sanctions were issued pursuant to its inherent authority and it need not list each instance of bad faith conduct.

The Tenth Circuit made slight reductions to the fee and cost award due to some of the fees and costs being performed for the appeal. The Circuit issued a final mandate that Farmer pay $40,246.76 in attorney fees and $10,577.77 in costs to Banco, and noted Banco could use any and all lawful means to ensure collection. The Tenth Circuit warned that “further prolongation of th[e] appeal” would result in the Tenth Circuit imposing its own sanctions on Farmer.

Colorado Court of Appeals: Maintenance Awards Exempt from Attorney Charging Liens

The Colorado Court of Appeals issued its opinion in In re Marriage of Dixon v. Samuel J. Stoorman & Associates PC on Thursday, July 16, 2015.

Charging Lien—Maintenance—Attorney Fees.

Samuel J. Stoorman & Associates PC (law firm) sought to enforce its lien against the maintenance payments that husband was obligated to pay to the law firm’s former client (wife). The law firm had represented wife in the dissolution action giving rise to husband’s maintenance obligation. The trial court determined that the maintenance payments were exempt from enforcement of the attorney’s lien.

On appeal, the law firm contended that the trial court erred in finding that the law firm’s attorney’s lien could not be enforced against husband’s spousal maintenance obligations. A charging lien automatically attaches to the fruits of the attorney’s representation of the client, to the extent of the attorney’s reasonable fees remaining due and unpaid. An attorney may immediately enforce the lien against the client once judgment in favor of the client is entered. Maintenance payments and obligations are exempt from enforcement of the charging lien. Accordingly, an attorney’s charging lien may not be enforced against a court-ordered spousal maintenance obligation or payment. The trial court’s denial of the law firm’s motion to enforce the lien against husband’s maintenance obligations to wife was affirmed. Nevertheless, the law firm’s position did not lack substantial justification because the question whether a charging lien may be enforced against spousal maintenance payments or obligations had not been decided at the time of the law firm’s motion. Consequently, the award of attorney fees and costs to husband was reversed and husband’s request for an award of attorney fees and costs incurred on appeal was denied.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Common Open Space Part of Subdivision’s Community Property

The Colorado Court of Appeals issued its opinion in Hauer v. McMullin on Thursday, July 2, 2015.

Real Property—Common Open Space—Unincorporated Homeowners Association—Colorado Common Interest Ownership Act—Attorney Fees.

The McMullins owned Two Rivers Estates, which included seven lots and seventeen acres of Common Open Space (COS). The McMullins sold the seven lots to three owners: the Hauers bought lots one and three; the Conrados bought lot two; and Lincoln Trust FBO John Hauer (Lincoln Trust) bought lots four through seven. Thereafter, the Hauers and Lincoln Trust filed a complaint individually and on behalf of the unincorporated Two Rivers Homeowners Association (HOA) to quiet title to their respective lots. They also sought to quiet title to the COS in the HOA. The McMullins counterclaimed, asserting that they hold title to the COS because a common interest community was never formally created and because they never conveyed the COS property. The trial court found in favor of the Hauers and Lincoln Trust.

On appeal, the McMullins contended that the trial court erred when it quieted title to the COS in the unincorporated HOA. The Evergreen Highlands’s declarations expressly established the HOA, conveyed to it the development’s common property, charged it with maintaining the common property, and granted it authority to determine annual membership or use fees. The final recorded plat, the recorded subdivision agreement, the recorded deeds, and the land sale contract with Lincoln Trust constituted declarations necessary to form a common interest community under the Colorado Common Interest Ownership Act. Therefore, the COS was part of the subdivision’s common property and was appurtenant to each lot, and with each conveyance of a lot, an appurtenant one-seventh common interest in the COS was conveyed, as well. The trial court’s findings and order were affirmed.

The McMullins and their attorney contended that the trial court abused its discretion when it awarded the Hauers their attorney fees incurred as a result of the McMullins’ failure to disclose information relevant to the subdivision development, without making a finding of prejudice. The trial court did not abuse its discretion in awarding attorney fees as sanctions under CRCP 37, because this rule and the assessment of attorney fees do not require a finding of prejudice.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Attorney Fees Awarded for Vindication of Rights Pursuant to C.A.R. 39.5

The Colorado Supreme Court issued its opinion in St. Jude’s Co. v. Roaring Fork Club, L.L.C. on Monday, June 29, 2015.

Water Law—Beneficial Use.

St. Jude’s Co. appealed directly to the Supreme Court from a consolidated judgment of the water court in favor of Roaring Fork Club, L.L.C. (Club). With regard to the Club’s two applications for water rights, the water court granted appropriative rights for aesthetic, recreation, and piscatorial uses; approved the Club’s accompanying augmentation plan; and amended the legal description of the Club’s point of diversion for an already-decreed right. With regard to the separate action filed by St. Jude’s Co., the water court denied all but one of its claims for trespass; denied its claims for breach of a prior settlement agreement with the Club; denied its claims for declaratory and injunctive relief concerning its asserted entitlement to the exercise of powers of eminent domain; quieted title to disputed rights implicated in the Club’s application for an augmentation plan; and awarded attorney fees in favor of the Club according to the terms of the settlement agreement of the parties.

The Supreme Court reversed the water court’s order decreeing appropriative rights because the Club failed to demonstrate an intent to apply the amount of water for which it sought a decree to any beneficial use as contemplated by either the Colorado Constitution or statutes. The Court affirmed the remaining rulings of the water court, finding that the water court did not misinterpret the various agreements at issue or other governing law, make any clearly erroneous factual findings, or abuse its discretion concerning discovery matters or the award of attorney fees. Finally, the Court granted the Club’s request for appellate attorney fees and remanded the matter to the water court for a determination of the amount of those fees.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Fees and Costs Appropriately Imposed Against Non-Party for Frivolous Defenses

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights for Cherokee Metropolitan District in El Paso County: Upper Black Squirrel Creek Ground Water Management District v. Cherokee Metropolitan District on Monday, June 22, 2015.

Ground Water Rights—Parties Rights Under a Stipulation.

Upper Black Squirrel Creek Ground Water Management District (UBS) appealed from an order of the water court interpreting an earlier stipulated decree, to which UBS and Cherokee Metropolitan District (Cherokee) were parties, concerning Cherokee’s rights to ground water in the Upper Black Squirrel Basin and, particularly, Cherokee’s right to export water for use outside the basin. UBS sought a declaration that a provision of the stipulation requiring Cherokee to deliver wastewater returns back into the basin for recharge of the aquifer barred Cherokee and Meridian (another metropolitan district with which Cherokee had entered into an intergovernmental agreement) from claiming credit for these wastewater returns as replacement water, for purposes of acquiring the right to additional pumping from Cherokee’s wells in the basin. The water court ruled instead that nothing in the stipulation, and particularly not its use of the word “recharge,” implied abandonment or forfeiture of any right Cherokee might otherwise have to claim future credits with the Ground Water Commission.

Although the water court found that Meridian, as a nonparty, was not bound by the stipulation, it assessed costs and attorney fees against Meridian for pursuing frivolous defenses. Meridian cross-appealed the water court’s order imposing costs and attorney fees.

Because the water court properly interpreted the stipulation, and because it did not abuse its discretion in ordering costs and fees, its orders as to which error has been assigned on appeal and cross-appeal respectively were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: CORA Exception for Prosecuting Attorney Does Not Apply to Land Use Violation

The Colorado Court of Appeals issued its opinion in Shook v. Pitkin County Board of County Commissioners on Thursday, June 18, 2015.

Colorado Open Records Act—Investigatory Records Exception.

In August 2012, the Pitkin County Attorney’s Office received a citizen complaint regarding a potential code violation of plaintiff Shook’s property. The complaint was investigated and a violation notice for failure to obtain a necessary construction permit was issued. Shook cured the violation by obtaining a permit.

Several months later, Shook submitted a Colorado Open Records Act (CORA) request to the county attorney (custodian), seeking access to records related to the violation. The custodian provided certain documents but denied access to the original citizen complaint and the investigating officer’s handwritten notes.

Shook then filed this action, seeking a declaratory judgment that the custodian violated CORA by withholding the records, an order directing the custodian to disclose the records, and attorney fees and costs. The district court held that the custodian properly denied access to the records under CORA’s investigatory records exception, CRS § 24-72-204(2)(a)(I).

The investigatory records exception allows a custodian to withhold records if (1) the records relate to investigations conducted by a sheriff, prosecuting attorney, or police department, or are contained in investigatory files compiled for criminal law enforcement purposes; and (2) disclosure would be contrary to the public interest. Here, the record did not support the finding that the records related to an investigation by a prosecuting attorney. Such an attorney refers to one prosecuting a criminal matter, and this was not a criminal prosecution. The order was reversed for failure to meet the first prong.

CRS § 24-72-204(5) requires the court to award costs and reasonable attorney fees to any person who applies for and receives an order requiring a custodian to permit inspection of public records. The case was remanded with directions to order the custodian to allow Shook to inspect the records and, upon Shook’s application, assess and award reasonable court costs and attorney fees in her favor.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Official Custodian’s Denial of Records Request Proper so No Entitlement to Attorney Fee Award

The Colorado Supreme Court issued its opinion in Reno v. Marks on Tuesday, May 26, 2015.

Colorado Open Records Act—CRS § 24-72-204—Costs and Attorney Fees.

In this case brought under the Colorado Open Records Act, the Supreme Court held that where an official custodian of records brings a court action under CRS § 24-72-204(6)(a) seeking an order restricting or prohibiting disclosure of records, a records requestor may recover costs and reasonable attorney fees in accordance with CRS § 24-72-204(5). Under subsection 204(5), a prevailing records requestor is entitled to costs and attorney fees unless the district court finds that the denial of the right of inspection was proper. Here, the district court’s order reflects that the official custodian’s denial of the request was proper. Consequently, the records requestor was not entitled to attorney fees.

Summary and full case available here, courtesy of The Colorado Lawyer.