June 19, 2019

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: Attorney Must Pay Opposing Party’s Appellate Fees and Costs for His Frivolous Appeal

The Colorado Court of Appeals issued its opinion in Rose L. Watson Revocable Trust v. BP America Production Co. on Thursday, January 30, 2014.

Frivolous and Groundless Claim Sanctions.

Attorney William Bontrager brought claims against BP America Production Company (BP) on behalf of the Rose L. Watson Revocable Trust (Trust). The Trust alleged that BP had failed to explore and develop natural gas formations pursuant to its lease of the Trust’s property. Sixteen months after suit was filed, BP moved for summary judgment. As of that date, the Trust had not conducted any discovery and had not set the case for trial. The Trust did not respond to BP’s motion. Bontrager stated that the Trust was choosing not to respond and, instead, sought leave to conduct extensive discovery. He did not submit an affidavit pursuant to CRCP 56(f) requesting additional time to respond to BP’s motion after completing discovery.

The district court granted BP’s motion. In its order, the court expressed doubt as to whether Bontrager had conducted an adequate investigation before filing suit and found that the Trust’s complaint was frivolous and groundless, entitling BP to an award of attorney fees and costs under CRS §§ 13-17-101 to -106.

The Trust appealed, and a division of the Court of Appeals affirmed the summary judgment and remanded for a determination of BP’s reasonable attorney fees incurred on appeal. Following a hearing, the district court issued an order detailing why BP was entitled to an award of fees and costs. The court awarded $162,697 in fees to BP and ordered Bontrager to pay 75% of that sum. Bontrager appealed.

Bontrager filed the notice of appeal on April 10, 2013 and his opening brief on June 22, 2013. BP filed an answer brief on July 29, 2013. Bontrager filed a reply brief on August 19, 2013. On December 1, 2013, Bontrager filed a one-sentence motion to voluntarily dismiss his appeal. BP opposed, arguing that CAR 42(b) requires that if the appeal is voluntarily dismissed, it must be conditioned on Bontrager paying BP’s appellate attorney fees. The Court ordered Bontrager to reply to BP’s opposition. Bontrager’s reply stated he was moving to dismiss because (1) substantial attorney fees had been awarded against him in other similar cases; and (2) owing to decisions of the Court and denials of certiorari review in other similar cases, he had “lost all hope” that his arguments would be resolved on the merits.

The Court of Appeals denied Bontrager’s motion, holding that it would not be in the interests of justice or fairness to allow him to voluntarily dismiss the appeal at this point and not pay BP its appellate attorney fees. The Court next declared the appeal frivolous. The Court noted that other similar cases filed by Bontrager had been dismissed by various district courts and divisions of the Court as frivolous. It rejected Bontrager’s continued assertion that the summary judgment order was incorrectly granted and rejected his repeated arguments already held to be frivolous by other divisions of the Court. The Court granted BP’s request for an award of its attorney fees incurred on appeal and remanded the case for a determination of those fees.

Summary and full case available here.