concurring in part and dissenting in part.
I concur with the result reached by the majority in Part I of the opinion. However, I conclude that defendant’s claim for attorney fees under § 1983 and § 1988, 42 U.S.C. was asserted in full compliance with applicable rules. Therefore, defendant is not precluded from an award of fees for the defense of the appeal in Board of County Commissioners v. Eason, (Colo.App. No. 95CA2207, May 15, 1997)(not selected for official publication){Eason I), and thus I respectfully dissent from the result reached in Part II of the opinion.
C.R.C.P. 57(h) specifically provides that either party may seek “further relief based on a declaratory judgment or decree whenever necessary or proper.” Consistent with the express language of the rule, this provision has been relied upon previously to assert a claim for fees under § 1983 and § 1988 subsequent to entry of a declaratory judgment. See Subryan v. Regents of the University of Colorado, 789 P.2d 472 (Colo.App. 1989). It has been properly relied upon to assert a post-decree claim for fees under other legal theories as well. See Agee v. Trustees of the Pension Board, 33 Colo.App. 268, 518 P.2d 301 (1974); see also C.R.C.P. 121, § 1-22 (an award of fees based upon a statute may be requested by motion within 15 days after entry of the judgment).
Here, there is no contention that defendant’s post-trial motion was either untimely or deficient in pleading a claim for fees under § 1983 and § 1988. And, as noted by the majority, the determination that the county’s actions constituted a due process violation has been affirmed. Finally, as the division held in Eason v. Board of County Commissioners, 961 P.2d 537 (Colo.App. 1997)(Eason II) assertion of a post-decree damage claim under § 1983 is proper under Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140 (Colo.1973).
Under these circumstances, I conclude that a fee award for the appeal of Eason I must be remanded to the trial court for its consideration. In my view, to require the claim for fees to be asserted prior to entry of the declaratory judgment contravenes the express language of C.R.C.P. 57(h) and is inconsistent with the analysis and holding in Eason II.
Accordingly, I would remand the case for consideration of an award of fees pursuant to § 1988 for defense of the appeal in Easón I.