dissenting:
I respectfully dissent. A defendant prevailing against a public entity can recover reasonable attorney fees “if the court determines that said action was brought without reasonable basis or is frivolous.” Section 13-16-121, 6 C.R.S. (1984). “A claim or defense is frivolous if the proponent can present no rational argument based on the evidence or law in support of that claim or defense.” Western United Realty v. Isaacs, 679 P.2d 1063, 1069 (Colo.1984). “[I]f the record reveals that counsel or any party has brought, maintained, or defended an action in bad faith, the rationale for awarding attorney’s fees is even stronger.” Id.
In this case, attorney’s fees should be awarded because the county initiated the condemnation proceeding without negotiating with the owners for acquisition of the property. The county’s negotiation consisted of no more than the mailing of an offer and the granting of limited time after the mailing for the acceptance of the offer. Negotiation by the condemnor is a jurisdictional prerequisite to the commencement of an eminent domain proceeding. City of Thornton v. Farmers Reservoir and Irrigation Co., 194 Colo. 526, 538, 575 P.2d 382, 392 (1978); Interstate Trust Bldg. v. Denver Urban Renewal Auth., 172 Colo. 427, 433, 473 P.2d 978, 981 (1970); Vivian v. Board of Trustees of Colo. School of Mines, 152 Colo. 556, 561, 383 P.2d 801, 804
*1003(1963); Welch v. City and County of Denver, 141 Colo. 587, 593, 349 P.2d 352, 355 (1960); Stalford v. Board of Comm’rs, 128 Colo. 441, 445-46, 263 P.2d 436, 438-39 (1953); Old Timers Baseball Assoc, v. Housing Auth. of the City and County of Denver, 122 Colo. 597, 601, 224 P.2d 219, 222 (1950); Mulford v. Farmers Reservoir and Irrigation Co., 62 Colo. 167, 171, 161 P. 301, 302 (1916); see section 38-1-102(1), 16A C.R.S. (1982). Lengthy or face-to-face negotiations are not required. City of Thornton, 575 P.2d at 392. “The making of a reasonable offer to purchase in good faith by letter and allowing the property owner time to respond is sufficient.” Id. The condemnor has the burden of establishing a failure to agree. Id.
The trial court order includes the following findings:
[T]hat on June 30, 1983 the Board of County Commissioners of Jefferson County adopted resolution No. CC83-509 regarding their intent to acquire property which is the subject of this case. A portion of that resolution states as follows:
BE IT FURTHER RESOLVED that the Department of Public Works shall carry on negotiations in good faith to attempt to acquire said parcels without resort to eminent domain.
The Court also finds that on June 29, 1983 the County Commissioners sent an offer to acquire said property to each of the respondent’s [sic].
The Court take [sic] judicial notice of the fact that June 29, 1983, was a Wednesday and further that July 2, was a Saturday and July 3, was a Sunday and July 4, was a national holiday.
The Court finds further that this condemnation proceeding was commenced by filing a petition in the Jefferson County District Court on July 5, 1983. Failure to agree upon compensation is a prerequisite to filing of a condemnation proceeding. City of Thornton vs. Farmers Reservoir 575 P.2d 382 (Colo.1979 [1978]). All that is required to comply with this requirement is a reasonable good faith offer which can be made by letter so long as the property owner is given a reasonable time to respond. Id.
The Court finds that the time between the mailing of the letter on June 29, 1983, to the filing of this suit, July 5th, especially considering the three day holiday weekend was not a sufficient time to respond.
Bennett Auslaender submitted an affidavit asserting that he received the county’s offer in the mail on July 27, 1983. Fay Auslaender, by affidavit, stated that she received the offer on August 15, 1983. I agree with the trial court, the county did not satisfy the jurisdictional prerequisite of negotiation before initiating eminent domain proceedings. See Annotation, Sufficiency of Condemnor’s Negotiations Required as Preliminary to Taking in Eminent Domain, 21 A.L.R. 4th 765, 822-23 (1983) (discussing cases that denied condemnation because condemnor had allowed insufficient time to consider the offer). The court of appeals decision awarding attorney’s fees to the Auslaenders should be affirmed.
I am authorized to say that Justice MUL-LARKEY joins in this dissent.