COLORADO COURT OF APPEALS

 

Court of Appeals No.: O5CA1806
Park County District Court No. 97CV98
Honorable Charles M. Barton, Judge

George Barilla and Patricia Barilla, Plaintiffs-Appellees and Cross-Appellants,

and

Woodside Park 5 & 6 Homeowners Association, a Colorado non-profit corporation,
Plaintiff-Appellee,

v.

Gary Magness; Magness Land and Cattle L.L.C.; Todd Burt; and Jeff Antanies,
Defendants-Appellants and Cross-Appellees,

and

Board of County Commissioners of the County of Park,
Defendant-Appellee.

 

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by: JUDGE WEBB
Loeb and Russel, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced: July 5, 2007

 

Alison Maynard, Denver, Colorado, for Plaintiffs-Appellees and Cross Appellants
Michael C. Schaefer, Pine, Colorado, for Plaintiff-Appellee
Baker & Hostetler L.L.P, Rebecca C. Alexander, Denver, Colorado, for Defendants-Appellants and Cross-Appellees
Austin, Peirce & Smith, P.C., Thomas Fenton Smith, Aspen, Colorado, for Defendant-Appellee

 

In this land use dispute, defendants, Gary Magness, Magness Land and Cattle, L.L.C., Todd Burt, and Jeff Antanies (collectively “Magness”), appeal the judgment in favor of the landowners, plaintiffs George Barilla and Patricia Barilla (“Barillas”), and Woodside Park Units 5 and 6 Homeowners’ Association (HOA). The Barillas cross-appeal the summary judgment in favor of Magness and the judgment in favor of defendant the Board of County Commissioners of the County of Park, Colorado (County). The Barillas also ask us to consider attorney fees issues still pending before the trial court.

We affirm the judgment against Magness and in favor of the Barillas and the HOA, as well as the judgment for the County and against the Barillas. We reverse the summary judgment and remand for a trial on the Barillas’ damages. We conclude that the Barillas are not entitled to attorney fees against the County, but we remand for the trial court to award attorney fees against Magness.

I. Facts

As more particularly set forth in Barilla v. Magness, (Colo. App. No. 00CA0295, Nov. 8, 2001) (not published pursuant to C.A.R. 35(f)) (Magness I), this case concerns a 60 foot “road easement” that the Woodside Park subdivision plat provides is “reserved and dedicated.” In Magness I, the division determined that the plat language was ambiguous and reversed the trial court’s judgment in favor of Magness and the County. The division directed the trial court to reconsider the Barillas’ 42 U.S.C. 1983 claim against the County if it determined the dedication to have been invalid.

On remand, the trial court entered summary judgment in favor of Magness on the Barillas’ claims. Following a bench trial, the court declared that the road easement was not dedicated and held that Magness had violated the Woodside Park covenants by building a public road on the easement. It ruled for the County on the 1983 claims.

II. Summary Judgment

To resolve the question of inconsistency between the summary judgment against the Barillas and the judgment at trial in their favor on the dedication and covenant violation claims, we first address the Barillas’ contention on cross-appeal that the trial court erred by granting summary judgment in favor of Magness based on their failure to mitigate damages. We agree.

We review a summary judgment de novo, Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608, 611 (Colo. 1998), and consider the facts in the light most favorable to the nonmovant. Redmond v. Chains, Inc., 996 P.2d 759, 762 (Colo. App. 2000). Summary judgment is proper only if no issue of material fact exists and the moving party is entitled to judgment as a matter of law. See C.R.C.P. 56(c); McCormick v. Union Pac. Res. Co., 14 P.3d 346, 348 (Colo. 2000). We give the nonmoving party the benefit of all reasonable inferences and resolve all doubts as to the existence of a material fact against the moving party. Keith v. Kinney, 140 P.3d 141, 151 (Colo. App. 2005).

Generally, an injured party must take reasonable steps to mitigate damages. Harsh v. Cure Feeders, L.L.C., 116 P.3d 1286, 1288 (Colo. App. 2005). Thus, a plaintiff may not recover damages for injuries that reasonably might have been avoided. Valley Dev. Co. v. Weeks, 147 Colo. 591, 596, 364 P.2d 730, 733 (1961).

Here, during the proceedings on remand, the Barillas listed their lot for sale and received a full-price offer from Magness, which stated:

Buyer’s offer to purchase the property is expressly conditioned on Barillas’ dismissal with prejudice of all claims asserted by them against all defendants. . . with all parties to bear their own costs and attorneys’ fees. (Emphasis added.) The Barillas rejected the offer.

The trial court granted Magness’s summary judgment motion on the basis that rejection of the offer made further litigation of the Barillas’ claims “meaningless.” It relied on Fair v. Red Lion Inn, 943 P.2d 431 (Colo. 1997) and Albert v. Smith’s Food & Drug Centers, Inc., 356 F.3d 1242 (10th Cir. 2004), employment cases where rejection of an unconditional offer of reinstatement was held a failure to mitigate damages.

Magness cites no case, and we have found none in Colorado, extending contractual and statutory employment cases to intentional torts such as trespass. But we need not resolve this issue because such cases are limited to unconditional offers. See Fair v. Red Lion Inn, supra, 943 P.2d at 438 (“once the employer demonstrates that an unconditional offer of reemployment was made, the burden of going forward shifts to the employee to demonstrate valid reasons for a refusal to accept the offer.”). Here, Magness’s offer was “expressly conditioned” on the Barillas dismissing with prejudice their claims against all defendants.

The Barillas dispute Magness’s assertion that they were willing to remove this condition from their offer. The record does not contain a written offer without this condition that the Barillas could have accepted. Rather, the record includes a letter from Magness suggesting that “the offer could be conditioned on a ruling by the Park County District Court that, following a sale of the property to Magness Land Holdings LLC, all of the Barillas’ claims are subject to dismissal with prejudice.” Thus, whether the offer was unconditional is at least a disputed fact question that on summary judgment must be resolved in favor of the Barillas.

Assuming that the offer was conditional on dismissing the lawsuit with prejudice, we agree with the Barillas that accepting it would not have made them whole in three damage categories. See Harsh v. Cure Feeders, L.L.C., supra, 116 P.3d at 1288 (“whoever unlawfully injures another shall make the injured person whole.”).

First, “damages recoverable for injury to property that has been remediated include repair costs and post-repair diminution in value.” Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 69 (Colo. App. 2004).

We reject Magness’s contention that the Barillas are not entitled to damages for the diminution in value to their property. Magness does not dispute that grading for the road damaged the property. Although the Barillas sought remediation and not diminution damages, they assert that the listing price reflected diminution in value from the trespass because the property was offered for sale in an unremediated state. Hence, accepting Magness’s offer and dismissing the action would have left the Barillas uncompensated for this diminution in value but without an opportunity to recover remediation damages.

Second, while mental suffering damages associated with injury to property are generally not recoverable in the absence of fraud, malice, or other willful and wanton conduct, Webster v. Boone, 992 P.2d 1183, 1185 (Colo. App. 1999), damages for trespass may include inconvenience such as discomfort and annoyance to the property owner. Hawley v. Mowatt, P.3d , (Colo. App. No. 05CA1572, Apr. 5, 2007). Here, in opposing summary judgment, the Barillas averred they had to “deal with clean-up, erosion, and mudslides caused by the trespass; and deal with the persons who believe this ‘road’ on their property is a new access point.”

Moreover, whether Magness’s conduct was willful and wanton is also disputed. We are not persuaded by Magness’s argument that reliance on the permit from the County to build the road precludes a finding of willful and wanton conduct. For example, Magness resumed construction without awaiting an opinion from the County attorney on the legality of the easement. Questions involving intent are ill-suited to resolution by summary judgment. See Allen v. Nickerson, 155 P.3d 595, 600 (Colo. App. 2006) (if a deed is ambiguous, determining the party's intent on summary judgment is not appropriate).

Third, if actual damages and wanton and willful conduct are established, then the Barillas would also be entitled to punitive damages. See 13-21-102(1), C.R.S. 2006; Campbell v. Kelsall, 717 P.2d 1019, 10 19-20 (Colo. App. 1986) (awarding punitive damages in trespass case).

Accordingly, we conclude that the trial court erred in granting summary judgment in favor of Magness. Based on this conclusion, we need not address the parties’ other contentions concerning the summary judgment. On remand, the trial court should conduct a trial on the Barillas’ damages against Magness. If Magness shows that the condition was removed from the offer, then the trial court should address application of the employment cases in a tort action.

III. Dedication

We next address Magness’s contention that the trial court erred in concluding that the road easement was not dedicated. We disagree.

A. Scope of Review

Magness argues that the trial court’s findings on dedication are subject to de novo review. We agree with the Barillas and the HOA that these findings should be reviewed under the clearly erroneous standard.

We review legal conclusions of a trial court de novo.  Turnbaugh v. Chapman, 68 P.3d 570, 572 (Colo. App. 2003).  Interpretation of a plat is a question of law also subject to de novo review. See Evergreen Highlands Ass’n v. West, 73 P.3d 1, 9 (Colo. 2003). We accept the trial court’s findings of fact unless they are so clearly erroneous as to have no support in the record. Schuler v. Oldervik, 143 P.3d 1197, 1202 (Colo. App. 2006).

Here, the division in Magness I conducted a de novo review of the plat language and found it ambiguous. We discern no basis on which to revisit this issue. See Atmel Corp. v. Vitesse Semiconductor Corp., P.3d, (Colo. App. No. O4CA 1402, Mar. 8, 2007) (law of the case doctrine includes issues expressly or impliedly determined by another appellate division).

The division remanded to the trial court “for entry of factual findings in light of the extrinsic evidence presented and, based on such findings, a new determination as to whether there was a valid dedication of the road easement. . . .“ The trial court considered extrinsic evidence, much of which is disputed. Thus, the trial court’s findings on remand that the road easement is not dedicated are subject to a clearly erroneous standard of review. See East Ridge of Fort Collins, LLC v. Larimer and Weld Irr. Co., 109 P.3d 969, 974 (Colo. 2005) (”When an ambiguity has been determined to exist, the meaning of its terms is generally an issue of fact to be determined in the same manner as other factual issues.”).

Additionally, in our view on remand Magness had the burden to prove that the easement was dedicated. Initially, the Barillas and the HOA bore the burden of proof in challenging the easement, which was of record. But the Magness I division determined that the recorded plat was ambiguous and the dedication failed, absent extrinsic evidence of an unequivocal intent to dedicate. Thus, Magness, as the party seeking to uphold the dedication, was required to overcome the ambiguity.

2. Trial Court Findings

Here, the parties agree that dedication, if any, is by common law rather than statutory. At common law, dedication is the appropriation of an interest in land by the owner to public use. Turnbaugh v. Chapman, supra, 68 P.3d at 572. Such a dedication requires that (1) the property owner unequivocally intended to dedicate the property and (2) the governmental authority accepted the dedication. Turnbaugh v. Chapman, supra, 68 P.3d at 572; see also Stagecoach Property Owners Assn v. Young’s Ranch, 658 P.2d 1378, 1382 (Colo. App. 1982) (dedication of property to the public use is never presumed without evidence of unequivocal intent to make such dedication).

Where dedication language is ambiguous, parol evidence must be used to determine if a common law dedication exists. Stagecoach Prop. Owners Ass’n v. Young’s Ranch, supra, 658 P.2d at 1383. Proof of a “clear intent” is required. State Dept. of Highways, Div. of Highways v. Town of Silverthorne, 707 P.2d 1017, 1020 (Colo. App. 1985).

The division in Magness I directed the trial court to consider parol evidence in order to resolve the ambiguity of the phrase “reserved and dedicated.” The division concluded “that there are many unresolved issues of fact, including issues of credibility, that were not addressed by the trial court.” It then provided the following nonexclusive list of issues for the trial court to consider:

(1) whether the developer intended to dedicate a public road in light of the testimony of George Hurst;
(2) the intended use of Hidden Valley Ranch when the plat was approved;
(3) the initial purpose of the road easement; and
(4) the outcome of the County’s meeting of May 3, 1982, at which the status of the road easement was considered.

On remand, the trial court conducted a bench trial “to resolve the issues outlined by the Court of Appeals.” In a lengthy opinion, the court found that “the totality of the evidence fails to show clear intent to dedicate the Vista Lane easement for use as a public roadway.” We cannot say that this finding is clearly erroneous.

The trial court first determined that “the intent of Mr. Hurst in creating the easement was equivocal. . . and the parol evidence received in trial did not resolve the ambiguity of his intent.” The record supports this determination.

For example, Hurst testified that he reserved the easement for his own purpose - - to access any land purchased from Hidden Valley Ranch -- but he did not intend to dedicate the easement as a public road unless he acquired a portion of Hidden Valley Ranch. When asked how the road easement ended up on the plat, Hurst explained:

We put it on at the time -- at the same time we were preparing the plat, we were negotiating with Bob Magness for the additional land. And if we were successful, we knew we had to have access to it. But when we filed the plat, we did not intend to dedicate that section, because it was -- it’s not part of the road system, and it was only there if we were successful in the future of gaining additional land.   (Emphasis added.)

The trial court found this testimony credible, observing: “on the one hand Hurst thought that the easement was his to determine, yet on the other hand, he understood that by opening it up to the Hidden Valley Ranch side it would of necessity be public.” Magness has cited no authority, and we have found none in Colorado, predicating dedication on such a contingent, future event. Cf. Turnbaugh v. Chapman, supra, 68 P.3d at 572 (recognizing dedication for “future easement access,” but still requiring a finding of present intent to dedicate).

Hurst also testified that he did not intend to dedicate the road easement because he “would have had to amend the plat. . . get the utility easement abandoned. . . redraw the lot lines for Lot 128, because it would be less than two acres. . . and get a plat approval to build a county road.” Magness’s assertion that these statements are legally incorrect is contrary to Lidke v. Martin, 31 Colo. App. 40, 43, 500 P.2d 1184, 1185 (1972) (”the area occupied by the easement cannot be considered a part of the two adjacent lots for the purpose of determining compliance with zoning area requirements.”). Regardless, we need not resolve that question because this testimony further shows Hurst’s equivocal intent.

Magness also argues that an oral agreement between Hurst and Bob Magness -- the founder of Hidden Valley Ranch -- to relocate fence lines between their properties in exchange for a public easement to access Hidden Valley Ranch, shows Hurst’s clear intent to dedicate the easement. We are not persuaded.

During the mid-1970’s, Hurst discovered that the fences between Woodside Park and Hidden Valley Ranch did not comport with the County surveys. He acknowledged having agreed with Bob Magness, who died before the first trial, to relocate the fence lines. But Hurst also testified that this verbal agreement was not consideration for the easement:

Q: Were there any side deals related to this fencing survey issue you’re describing?

A: No.

Q: In other words, nothing like I'll. . . let you fence it if you give me X or vice versa, no quid pro quos, nothing exchanged. .

A: That’s correct.

Therefore, the agreement regarding the fence lines does not establish Hurst’s intent.

The trial court’s other findings, as directed by Magness I, do not resolve the question of ambiguity and are supported by the record. For example, the finding that Hidden Valley Ranch was “intended to be used in the future . . . as a cattle ranch,” raises the question of why Bob Magness would have sought a public easement from Hurst to access Hidden Valley Ranch, as Magness argues. The finding that the county “was unable or unwilling to determine the validity of the purported dedication,” also does not establish Hurst’s intent.

And because the record supports the trial court’s finding of no clear intent to dedicate the road easement, we need not address Magness’s challenges to the trial court’s additional analysis of the plat and covenant language. These documents were before the Magness I division, which noted inconsistencies on the plat because “solid lines were used to designate all of the roads and the survey markings on those roads, neither of which appear on the road easement.” The remand for consideration of extrinsic evidence makes further interpretation of the plat language unnecessary. Cf. Halliburton Services v. Miller, 720 P.2d 571, 575 (Colo. 1986) (court of appeals may limit the issues to be considered on remand).

Accordingly, we conclude that the trial court did not err in finding insufficient evidence to establish clear intent that the road easement was dedicated.

IV. Covenant Violation

Magness next contends the trial court erred in concluding that construction of the road violated the Woodside Park covenants. Again, we disagree.

Interpretation of a restrictive covenant is a question of law that requires de novo review. Rossman v. Seasons at Tiara Rado Assocs., 943 P.2d 34, 36 (Colo. App. 1996). When interpreting such covenant, courts must “follow the dictates of plain English.” Double D Manor, Inc. v. Evergreen Meadows Homeowners’ Ass’n, 773 P.2d 1046, 1048 (Colo. 1989). Courts will enforce a covenant as written that is clear on its face. Rossman, supra, 943 P.2d at 36.

Here, the trial court determined that construction of the public road violated the Woodside Park covenant that “All Lots shall be known and described as residential Lots and shall be used solely for residential purposes.” We discern no ambiguity in this covenant.

Having affirmed the trial court’s finding that the road easement on the plat was not dedicated for public use, we conclude that Magness’s construction of a public road on the easement necessarily violated the covenant. See Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860, 864 (Colo. 2001) (construction of a road to access another parcel of land violated a restrictive covenant limiting use of the land to a “single family dwelling”); accord Cole v. Cummings, 691 S.W.2d 11, 14 (Tex. Ct. App. 1985) (planned road on an easement to allow access to a parcel outside the subdivision “substantially breaches the covenant requiring the property to be used generally for residential purposes”) (cited in Buick); see also Easterwood v. Burge, 103 N.C. App. 507, 405 S.E.2d 787, 789 (1991) (a covenant restricting property to “residential use only” prohibited construction or access road to separate parcel); Calvary Baptist Church v. Adams, 570 S.W.2d 469, 474-75 (Tex. Civ. App. 1978) (construction of a roadway and parking lot “would amount to a substantial violation of the restrictive covenant” restricting to residential use lots).

Nevertheless, Magness argues that, even if the public road dedication fails, they did not violate the covenants because (1) Hurst reserved the easement for a private road, (2) by purchasing Lot 129 Magness succeeded to his interest, and (3) the preliminary activities to build a public road were also consistent with development of a private road on the easement. Although the trial court did not address this argument, we discern no need for a remand.

“The easement holder may make any use or improvement of the easement reasonably necessary for enjoyment of the easement.” Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1241 (Colo. 1998); see also Riddell v. Ewell, 929 P.2d 30, 33 (Colo. App. 1996) (”An easement can only be used in connection with the estate to which it is appurtenant and cannot be extended by the dominant estate owner to property owned by others. . . .“).

Even assuming that Magness succeeded to Hurst’s interest in the private road easement, Magness presented no evidence showing that grading a 60 foot wide connection from Vista Lane to Hidden Valley Ranch was reasonably necessary for Lot 129’s “enjoyment of the easement.”

Moreover, Magness presented no evidence that Architectural Control Committee approval for a private road had been obtained, as required by the plat and the covenants.

Plat note 8 provides that “Driveway cut permits and building permits must be obtained from the county by the individual lot owners. Approval by the Architectural Control Committee must be obtained prior to obtaining permits.” Regardless of whether Magness’s road was private or public, for Lot 129 to use the easement as ingress and egress to Vista Lane, a driveway cut would have been necessary.

Further, Article II, section 1 of the covenants provides, “there may be no construction upon a Lot prior to the construction of the residence.” And Article II, section 4 states, “Prior to any site clearing or construction, all plans and specifications must be approved in writing by the Committee.” When Magness began road construction Lot 129 was unimproved, and Magness’s bulldozing trees for construction of the road constitutes “site clearing.”

Thus, even if Magness’s construction was reasonably necessary as a private road for the benefit of Lot 129, Magness violated the covenants.

Accordingly, we agree with the trial court that Magness violated the Woodside Park covenants.

V. Attorney Fees for Covenant Violation

The Barillas and HOA contend they are entitled to attorney fees from Magness under 38-33.3-123, C.R.S. 2006, of the Colorado Common Interest Ownership Act (CCIOA). Because our resolution of the covenant violation claim entitles them to attorney fees as a matter of law, we agree, but conclude that all issues concerning the amount and allocation of fees must be resolved by the trial court. Section 38-33.3-123(1) (c), C.R.S. 2006, provides in pertinent part:

For each claim or defense. . . in any legal proceeding to enforce or defend the provisions of this article or of the declaration. . . the court shall award to the party prevailing on such claim the prevailing party’s reasonable collection costs and attorney fees and costs incurred in asserting or defending the claim.

The “shall award” language of 38-33.3- 123(1) (c) is mandatory. Pagosa Lakes Prop. Owners Ass’n v. Caywood, 973 P.2d 698, 703 (Colo. App. 1998). However, determining which party prevailed is committed to the trial court’s discretion, Bedard v. Martin, 100 P.3d 584 (Colo.App.2004).

Here, the covenant violation claim under CCIOA was resolved against Magness below, and we have affirmed that ruling. Thus, we conclude, as a matter of law, that the Barillas and the HOA are entitled to recover attorney fees as the prevailing parties under 38-33.3-123(1) (c), including fees on appeal.

The trial court currently has a motion pending before it to award attorney fees to the Barillas and the HOA under CCIOA. While we have determined that the Barillas and the HOA prevailed, the trial court must still decide issues such as the reasonableness of fees and allocation between the Barillas and the HOA, in light of possible redundancy in their litigation efforts.

VI. Hidden Valley Ranches, Inc.

We decline to consider Magness’s contention that the trial court’s award of damages against Hidden Valley Ranches, Inc., after having entered a default judgment, is void.

Only parties adversely affected by a judgment may appeal it. Biel v. Alcott, 876 P.2d 60 (Colo. App. 1993).

Hidden Valley Ranches, Inc. is a separate entity that did not file an appeal. Counsel for Magness did not enter an appearance on its behalf either in the trial court or on appeal.

Accordingly, we conclude that Magness is precluded from raising this issue. VII 42 U.S.C. 1983

On cross-appeal, the Barillas contend the trial court erred in concluding that the County did not violate their substantive and procedural due process rights under 42 U.S.C. 1983. We disagree.

The Fourteenth Amendment mandates that a state may not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV, 1.

To prevail under 1983, a plaintiff must show that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the Constitution and laws of the United States. See Jaffe v. City and County of Denver, 15 P.3d 806, 811 (Colo. App. 2000).

Courts are not empowered to act as super zoning boards substituting their judgment for that of the legislative and administrative bodies pursuing legitimate objectives. Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 832 n.5 (9th Cir. 2003); Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 348-49 (2d Cir. 2005); Sprint Spectrum, L.P. v. City of Carmel, md., 361 F.3d 998, 1002 (7th Cir. 2004).

A. Substantive Due Process

We first reject the Barillas’ argument that by granting a road permit to Magness and declining to rescind it when the road easement was challenged, the County denied them substantive due process by depriving them of the use and enjoyment of their property in violation of the Due Process Clause of the Fourteenth Amendment.

Courts should be “reluctant to expand the concept of substantive due process because guideposts for permissible decision making in this uncharted area are scarce and open- ended.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d261 (1992).

A local government is liable for damages under 1983 only for harm arising from implementation or enforcement of an official ordinance, policy, or custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); County of Adams v. Hibbard, 918 P.2d 212, 216 (Colo. 1996).

State actors are generally liable only for their own acts and not for the acts of third parties. See Henderson v. Gunther, 931 P.2d 1150, 1155 (Colo. 1997). Thus, even where the Monell requirements have been satisfied, the court must consider whether the local government’s action directly inflicted the plaintiff's injury or merely allowed a third party to do so. Watson v. Eagle County School Dist. RE-50, 797 P.2d 768, 770 (Colo. App. 1990). However, exceptions have arisen in limited circumstances, where the local government must protect citizens from constitutional injury inflicted by a third party. Henderson v. Gunther, supra, 931 P.2d at 1155.

The danger creation exception applies to harm caused by third parties because the state actor either created the danger that ultimately caused the harm or increased the plaintiffs vulnerability to the harm. Henderson v. Gunther, supra, 931 P.2d at 1156.

Under this exception, a plaintiff must show that (1) he is a member of a limited and specifically definable group; (2) the defendant’s conduct put him at substantial risk of serious, immediate and proximate harm; (3) the risk was obvious or known; (4) the defendant acted recklessly in conscious disregard of that risk; and (5) such conduct is conscience shocking. Armilo v. Wagon Mound Pub. Schools, 159 F.3d 1253, 1263 (10th Cir. 1998) (cited with approval in Wark v. Bd. of County Comrs, 47 P.3d 711, 717 (Colo. App. 2002)).

Here, the Barillas argue that the County is liable under 1983 because after the permit issued Magness damaged their property, and caused further damage after the County could have revoked the permit. We are not persuaded.

Without addressing Monell, the trial court found that “the issuance of the permit allowed a private party (Magness) to go onto their property and destroy it,” but issuance “did not, in and of itself, damage the Barillas’ property.” The court then turned to the danger creation exception and found it inapplicable.

Had the court considered Monell and found that the Barillas failed to satisfy its requirements, then addressing the direct injury limitation and the danger creation exception would be unnecessary. However, applying Monell would require remand for additional findings.

But because the Barillas limit their substantive due process claim to the County’s issuing the road permit and declining to rescind it, the direct injury limitation and the danger creation exception are outcome determinative. Hence, we follow the approach of the trial court, and first determine, as a matter of law, that the County’s conduct caused no direct harm to the Barillas’ property.

“A state official’s mere approval of or acquiescence to the conduct of a private party is insufficient to establish the nexus required for state action.” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1450 (10th Cir. 1995); see generally Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164, 98 S.Ct. 1729, 1737-38, 56 L.Ed.2d 185 (1978) (rejecting “the imposition of Fourteenth Amendment restraints on private action by the simple device of characterizing the state’s action as ‘authorization’ or ‘encouragement.”); Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (”constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.”).

The Barillas cite no authority, and we have found none, holding a local government liable under 1983 for a land use decision that only allowed a third party to cause the complained-of injury. The cases cited by the Barillas involved government action directly causing injury. See, e.g., Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1401 (9th Cir. 1989) (state breached privately owned dam and destroyed lake); Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988) (county constructed a road on Indian land allotment); Evers v. County of Custer, 745 F.2d 1196, 1200 (9th Cir. 1984) (county declared that a preexisting road crossing property owner’s land was public); Oberndorfv. City and County of Denver, 653 F. Supp. 304, 307 (D. Colo. 1986) (city adopted proposed urban renewal plan).

Accordingly, because the Barillas’ property damage was caused by a third party whose actions the County at most authorized, they do not meet the direct injury limitation. Thus, their 1983 claim is viable only under the danger creation exception, even if the County’s permit satisfied the Monell requirement of “the implementation or enforcement of a local ordinance, policy, or custom.” Hence, we turn to the trial court’s finding that the danger creation exception does not apply to the harm caused by Magness, which the record supports.

According to the trial court, “the language on the plat would reasonably lead county officials to conclude that the easements shown on the plat were dedicated to the county. . . .“ Thus, “the evidence does not show that the county recklessly or intentionally disregarded the risk that the Barillas would be deprived of their due process property rights if the permit were approved.”

The trial court also found that “the issuance of the permit does not shock the conscience of the court. . . because the County merely had the obligation to issue the road permit if the conditions of the permitting process were met.” And here, “reasonable people may, and have, reached different but reasonable conclusions as to the validity of the easement.”

Therefore, we conclude that the County did not deprive the Barillas of substantive due process.

B. Procedural Due Process

We also reject the Barillas’ argument that the trial court erred in concluding that, despite failing to provide them prior notice of its action on the permit application, the County did not violate their right to procedural due process under the Fourteenth Amendment. We adopt reasoning different from that used by the trial court. See Thorpe v. State, 107 P.3d 1064, 1071 (Colo. App. 2004) (appellate court may uphold a trial court decision using different reasoning).

In evaluating a procedural due process claim, a court must consider whether: (1) a property interest has been identified; (2) governmental action with respect to that interest amounts to a deprivation; and (3) the deprivation, if one be found, was visited on the plaintiff without due process of law. Hillside Cmty. Church v. Olson, 58 P.3d 1021, 1025 (Colo. 2002).

The Barillas argue, and we agree, that they have a stronger due process argument than the plaintiffs in Hillside because action taken under the County permit damaged their property, whereas the Hillside plaintiffs raised a due process claim based only on lack of notice. Nevertheless, whether a property interest exists in the outcome of a local land use decision depends not on the probability of a favorable result, but on the degree of discretion vested in the decision maker. Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1027.

“If the decision maker is granted a broad range of discretion, the applicant is seeking neither an interest that he or she has already acquired nor a claim upon which he or she should rely, regardless of the characterization of the process involved.” Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111, 1117 (10th Cir. 1991); see also Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (plaintiff must show that city council had limited discretion to disapprove the proposed plat, “otherwise, the city’s decision-making lacks sufficient substantive limitations to invoke due process guarantees.”).

Thus, to prove a property interest warranting procedural due process protection, the Barillas must show that had the County held a hearing, it would have been obligated to deny the road construction permit. Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1027. We note that the Barillas did not make this argument below, and in any event, we discern no basis in the record for so concluding.

Hillside held that the plaintiffs had no property interest in denial of a special use permit concerning improvements to adjacent property. The supreme court determined that because both the Planning Commission and the City Council had broad discretion:

Had the special use permit hearing been held, Respondents would have had no certainty that Hillside’s special use permit application would have been denied. Accordingly, Respondents could have had no preexisting claim of entitlement to the denial of the special use permit.

Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1029.

The Barillas do not cite any County land use or zoning regulations limiting the discretion of the County as to road permits.

Exhibit B-35, the 1996 Park County Land Use Regulations, was not included in the record on appeal, and we may not take judicial notice of them. See Concrete Contractors, Inc. v. City of Arvada, 621 P.2d 320, 321 n.1 (Colo. 1981) (because judicial notice may generally not be taken of municipal ordinances or resolutions, party is responsible to include in the appellate record copies of municipal ordinances or resolutions on which reliance is placed).

Moreover, discussion before the Board of County Commissioners concerning the road permit application and attendant subdivision agreement/road bond shows consideration of inherently discretionary factors, such as the impact on other roads, maintenance costs, safety, and completion according to existing County standards.

Thus, we conclude that the Barillas have not demonstrated a sufficient property interest to warrant procedural due process protection under Hillside.

Accordingly, we further conclude that the County did not deprive the Barillas of procedural due process.

C. Attorney Fees

The Barillas also contend they are entitled to attorney fees under 42 U.S.C. 1988, even if they do not prevail on their 1983 claims, because they prevailed on the dedication claim. We disagree because, although we have upheld the judgment in their favor on the state law dedication claim, we have also determined that they were not entitled to relief under 1983.

Section 1988 provides in pertinent part: “In any action or proceeding to enforce a provision of section} . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party…..reasonable attorneys fees as part of the costs.” A plaintiff who succeeds on a state claim, but does not succeed on any ultimate constitutional claim, is not a “prevailing party” under 1988. See Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir. 1990) (collecting cases).

Here, the trial court has not ruled on the Barillas’ motion for attorney fees under 1988. See Colo. State Pers. Bd. v. Dep’t of Corr., 988 P.2d 1147, 1152 (Colo. 1999) (appeal on the merits is separate from the issue of attorney fees, and is final and appealable regardless of whether an attorney fee award is final or not). However, because we conclude as a matter of law that they were not the prevailing party under 1983, and thus are not entitled to attorney fees under 1988, protracting resolution of this issue would be without purpose.

Accordingly, on remand the trial court should deny the Barillas’ motion for attorney fees under 1988.

VIII. Prejudgment Interest

The Barillas next contend they are entitled to prejudgment interest on the damages award against Hidden Valley Ranches, Inc. We conclude that this issue is not properly before us because the trial court has yet to address it.

According to the Barillas, “they asked the court to correct the judgment to add prejudgment interest, as a clerical error pursuant to Rule 60(a), but the court has not ruled on their motion.” See Edmonds v. Western Sur. Co., 962 P.2d 323, 329 (Colo. App. 1998) (failure to award prejudgment interest treated as clerical error).

A trial court’s jurisdiction to determine a motion under C.R.C.P. 60(a) is not circumscribed by the C.R.C.P. 59(j) 60-day time limitations applicable to “post-trial motions” as defined in C.R.C.P. 59(a). Cont’l Bank, N.A. v. Rowe, 817 P.2d 620, 624 (Colo. App. 1991).

Hence, because the trial court retains jurisdiction to rule on the Barillas’ motion, this issue is not properly before us.

IX. Conclusion

The judgment is affirmed as to the dedication claim, the covenant violation claim, and the 1983 claim; the summary judgment is reversed; and the case is remanded for further proceedings on the Barillas’ damages, to award attorney fees under CCIOA, and to deny attorney fees under 1988.

JUDGE LOEB and JUDGE RUSSEL concur.

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