Golden Run Estates, LLC v. Town of Erie

COLORADO COURT OF APPEALS 2016COA145

Court of Appeals No. 15CA1135
Boulder County District Court No. 14CV31112
Honorable Andrew Hartman, Judge

Golden Run Estates, LLC, a Colorado limited liability company; and Aaron
Harber,

Plaintiffs-Appellees,

v.

Town of Erie,

Defendant-Appellant.

JUDGMENT VACATED IN PART AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TAUBMAN
Freyre and Nieto*, JJ., concur

Announced October 6, 2016

RJB Lawyer, LLC, Robert J. Bruce, Denver, Colorado, for Plaintiffs-Appellees

Nathan Dumm & Mayer, P.C., J. Andrew Nathan, Marni Nathan Kloster,
Nicholas C. Poppe, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 This case arises out of defendant, Town of Erie, annexing a

320-acre property located in unincorporated Boulder County that

plaintiff Aaron Harber owned. Harber envisioned his company,

plaintiff Golden Run Estates, LLC, developing the property into a

sustainable, mixed-use community for 40,000 residents over 25 to

50 years. After the parties entered into a pre-annexation

agreement, Golden Run and Harber (the plaintiffs) sued Erie

because further negotiations did not result in an annexation

agreement. They brought four claims: two contract claims, one

claim for declaratory relief, and one claim for a judicial

disconnection decree.

¶2 After trial, the court concluded that it had subject matter

jurisdiction over the plaintiffs’ contract claims and entered

judgment on the jury’s award of damages of over $350,000. The

trial court also ordered judicial disconnection under section 31-12-

702, C.R.S. 2016. The only claims before us are Erie’s appeal of the

jury award on the plaintiffs’ two contract claims.1 Because we

1 The trial court entered a judicial decree disconnecting the property
from Erie, a ruling which Erie does not appeal. The court
concluded that it did not have subject matter jurisdiction over the

1
 conclude that the trial court did not have subject matter

jurisdiction over either contract claim, we vacate that part of the

judgment, vacate the jury’s award of damages, and remand the case

with directions to grant Erie’s motion for directed verdict and for a

determination of the amount of attorney fees incurred by Erie for

this appeal.

I. Background

¶3 In 2013, Harber discussed with Erie his plan to develop the

property. The parties ultimately agreed to pursue annexation of the

property into Erie. Erie proposed the parties enter into a pre-

annexation agreement, as the first step of a three-part annexation

process. An annexation agreement and a detailed development plan

would follow the pre-annexation agreement.

¶4 In April 2013, Erie and the plaintiffs entered into a pre-

annexation agreement, which defined the roles of the plaintiffs and

Erie until the parties could enter into a more formal annexation

agreement. The parties anticipated they would reach an annexation

agreement by August 1, 2013, but did not do so.

plaintiffs’ declaratory relief claim, a ruling that they do not
challenge.

2
¶5 The pre-annexation agreement set forth remedies for both

parties in the event of a breach. While Erie retained “all remedies at

law and equity,” the plaintiffs negotiated for two remedies contained

in sections 4A and 4B of the pre-annexation agreement. As relevant

here, section 4A reads:

At any time on or after August 1, 2013, in the
event the Golden Run Annexation agreement
proposed by [the plaintiffs], as it may be
mutually amended by the parties hereto, is not
approved by [Erie] at the same time as [Erie]
approves the annexation of the Property, then,
in that event, at [the plaintiffs’] sole option,
[the plaintiffs] may retroactively withdraw the
Annexation Petition without penalty or further
obligation by written notice delivered to [Erie]
and the Property shall not be annexed by
[Erie], regardless of annexation approval or
any other actions taken by [Erie].

(Emphasis added.)2

2 Although the plaintiffs mentioned section 4B in their answer brief
as the basis for the court’s award of damages, Harber conceded at
the pretrial conference that section 4B could not be a basis for
relief: “I don’t have a problem promising you and entering in and
agree[ing] to an order that says I can’t seek relief under 4B.” The
court ruled that “4B will not form the basis of a Plaintiff remedy in
and of itself or a violation of 4B.” Therefore, we need not address
section 4B.

3
¶6 In October 2013, Erie’s Board of Trustees adopted Ordinance

30-2013, which annexed Golden Run into Erie. The ordinance

became effective on November 15, 2013.

¶7 In January 2014, the plaintiffs submitted a draft annexation

agreement for the Board of Trustees’ meeting. In the draft

agreement, Harber proposed that he alone would select the number

of units in Golden Run. However, a trustee proposed amending the

annexation agreement to allow Erie to approve the number of units

that Harber had selected. The plaintiffs did not want Erie to have

any “veto power” over the scale of Golden Run and thus rejected the

proposed agreement.

¶8 On February 24, 2014, 101 days after the annexation became

effective, the plaintiffs requested “retroactive nullification” of the

annexation of Golden Run. However, the next day, they withdrew

their request, and the parties continued to negotiate, but without

reaching agreement. Nonetheless, the plaintiffs agreed to move

forward with Erie’s initial zoning plan, given Erie’s assurances that

all the plaintiffs’ “rights to disconnect” would remain intact.

¶9 In July 2014, an Erie police officer responded to Golden Run

after the police department received a series of complaints about its

4
 condition. Upon arrival, the police officer observed several

municipal code violations from the property’s edge, but a “tenant”

refused his entry onto the property. Nevertheless, the tenant

informed the officer that his mobile home lacked running water and

that he was forced to urinate and defecate outside. The officer

contacted Boulder County Adult Protective Services for the elderly,

at-risk tenant and obtained a search warrant to view the remainder

of the property.

¶ 10 The search revealed that four tenants were living in dwellings

unfit for human habitation. The structures on the property were in

various states of decay and concerns existed over numerous

deficiencies in the electrical systems exposed to outside elements.

An Erie building official ordered the tenants to vacate all dwellings

on the property. The plaintiffs believed that their requests for

disconnection or “retroactive nullification” of Golden Run’s

annexation ensured that they were “under no further obligation” to

Erie and thus were upset by the police action.

¶ 11 On July 30, 2014, the plaintiffs requested that the Board of

Trustees consider their proposed disconnection ordinance. Erie’s

Town Administrator informed the plaintiffs that they did not have a

5
 right to disconnect the property. The plaintiffs objected because

disconnection was “guaranteed by the pre-annexation agreement.”

¶ 12 On August 15, 2014, the plaintiffs “(1) withdr[ew] our

Annexation Petition, (2) withdr[ew] our Zoning Application, and (3)

request[ed] to immediately disconnect (i.e. de-annex) from the Town

of Erie.” They also notified Erie of its alleged breach of the pre-

annexation agreement.

¶ 13 When Erie failed to remedy its alleged breach within the thirty-

day grace period provided in the pre-annexation agreement, the

plaintiffs initiated this lawsuit. They asserted four claims: (1)

breach of contract for Erie “not processing the de-annexation of the

Properties”; (2) breach of the implied covenant of good faith and fair

dealing for Erie exercising its discretion in a commercially

unreasonable fashion and without regard to the intent of the parties

when the pre-annexation agreement was executed; (3) declaratory

relief to “de-annex” or “disconnect” the properties from Erie; and (4)

an alternative claim for a judicial decree disconnecting the

properties from Erie.

¶ 14 After the plaintiffs rested their case, Erie moved for a directed

verdict on several grounds. It asserted that the trial court lacked

6
 subject matter jurisdiction over the breach of contract claims

because the Municipal Annexation Act of 1965 (the Act), §§ 31-12-

101 to -123, C.R.S. 2016, precluded the relief the plaintiffs sought.

Erie also moved for a directed verdict on damages, arguing that the

plaintiffs’ attempts to value Golden Run without any expert

testimony were speculative as a matter of law. Erie also moved for

a directed verdict on the bad faith claim.

¶ 15 As relevant here, the court concluded that it had subject

matter jurisdiction over the plaintiffs’ contract claims and denied

Erie’s motion for directed verdict. The court entered judgment in

the plaintiffs’ favor, totaling $362,500 in damages: $305,000 on

their breach of contract claim and $57,500 on their claim for

breach of the implied covenant of good faith and fair dealing.

¶ 16 Erie raises four contentions on appeal: (1) the trial court erred

under the Act in concluding that it had subject matter jurisdiction

over the plaintiffs’ contract claims and in upholding the breach of

contract verdict; (2) the court erred in upholding the jury’s award of

damages for a breach of the implied covenant of good faith and fair

dealing despite provisions of the Act that prohibit such an award;

(3) the court erred in allowing the jury to consider the plaintiffs’

7
 damages for Golden Run’s lost opportunity costs in light of the

insufficient evidence presented at trial; and (4) the court abused its

discretion in permitting the plaintiffs’ property manager to testify

because he was not qualified as an expert.

¶ 17 We agree with Erie that the trial court did not have subject

matter jurisdiction over the plaintiffs’ contract claims. Therefore,

we need not address their contentions relating to the sufficiency of

the evidence concerning lost opportunity costs or the property

manager’s testimony.

II. Subject Matter Jurisdiction

¶ 18 Erie contends that the trial court lacked subject matter

jurisdiction over the plaintiffs’ contract claims because they did not

bring their claims within the jurisdictional sixty-day limitation

period under section 31-12-116(2)(a)(I), C.R.S. 2016. On the other

hand, the plaintiffs respond that their contract claims were not

controlled by the Act and that section 31-12-116 is inapplicable.

We agree with Erie.

A. Standard of Review

¶ 19 We review de novo a court’s subject matter jurisdiction. Tulips

Invs., LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 11, 340 P.3d 1126,

8
 1131. Interpretation of the Act is a question of law, which we also

review de novo. Bd. of Cty. Comm’rs v. City of Aurora, 62 P.3d 1049,

1052 (Colo. App. 2002). Last, we review de novo the interpretation

of contract terms. Edge Telecom, Inc. v. Sterling Bank, 143 P.3d

1155, 1159 (Colo. App. 2006).

B. Principles of Statutory Interpretation

¶ 20 “Our review is controlled by the Annexation Act.” Town of

Superior v. Midcities Co., 933 P.2d 596, 600 (Colo. 1997). In

construing its statutory provisions, we give effect to the intent of the

General Assembly. See Allstate Ins. Co. v. Smith, 902 P.2d 1386,

1387 (Colo. 1995). We first look to the statutory language, giving

words and phrases their commonly accepted and generally

understood meanings. Id.; Bertrand v. Bd. of Cty. Comm’rs, 872

P.2d 223, 228 (Colo. 1994). Where the language of a statute is

plain and the meaning is clear, we need not resort to interpretive

rules of statutory construction, but must apply the statute as

written. Allstate Ins. Co., 902 P.2d at 1387; Bertrand, 872 P.2d at

228.

9
 C. Principles of Contract Interpretation

¶ 21 “The primary goal of contract interpretation is to determine

and give effect to the intent of the parties,” which is to be

determined from the language of the instrument itself. Ad Two, Inc.

v. City & Cty. of Denver, 9 P.3d 373, 376 (Colo. 2000). Courts must

enforce contracts as written. Janicek v. Obsideo, LLC, 271 P.3d

1133, 1138 (Colo. App. 2011). In interpreting a contract, we must

“apply the plain meaning of the words used, . . . subject to

interpretation from the context and circumstances of the

transaction.” First Christian Assembly of God, Montbello v. City &

Cty. of Denver, 122 P.3d 1089, 1092 (Colo. App. 2005) (citation

omitted).

D. Applicable Law

¶ 22 Annexation is a special statutory proceeding where a property,

if lawfully annexed, becomes a part of the annexing municipality by

detaching the property from the county in which it lies. Superior,

933 P.2d at 600-01.

¶ 23 If any landowner “believes itself to be aggrieved by the acts of

the governing body of the annexing municipality,” the landowner

may have such acts reviewed in proceedings instituted in a “district

10
 court having jurisdiction of the county in which the annexed area is

located.” § 31-12-116(1)(a). Any party who wishes to bring such an

action must file a motion for reconsideration “within ten days of the

effective date of the ordinance finalizing the challenged annexation.”

§ 31-12-116(2)(a)(II). Compliance with this provision is a condition

precedent to the right to obtain judicial review under this section.

Id.

¶ 24 Further, “[a]ll such actions to review the findings and the

decision of the governing body shall be brought within sixty days

after the effective date of the ordinance [approving an annexation],

and, if such action is not brought within such time, such action

shall forever be barred.” § 31-12-116(2)(a)(I). Section 31-12-116

provides “the only procedure for judicial review of municipal

annexations implemented under the Act.” Bd. of Cty. Comm’rs v.

City of Woodland Park, 2014 CO 35, ¶ 11, 333 P.3d 55, 58. The

time limitation in section 31-12-116(2)(a)(I) is jurisdictional, and

because it is not a true statute of limitations, as the supreme court

stated in dicta in Fort Collins-Loveland Water Dist. v. City of Fort

Collins, 174 Colo. 79, 84, 482 P.2d 986, 989 (1971) (interpreting

predecessor statute), it cannot be tolled or waived.

11
¶ 25 We agree with the dicta and conclude that it applies here.

¶ 26 In addition, annexations “shall not be directly or collaterally

questioned in any suit, action, or proceeding, except as expressly

authorized in this section.” § 31-12-116(4).

¶ 27 Pre-annexation agreements and contracts are valid under the

Act, but a party seeking to enforce an annexation contract must

still comply with the requirements found in the Act. Superior, 933

P.2d at 602; see also § 31-12-112(1), C.R.S. 2016.

E. Analysis

¶ 28 The plaintiffs contend that their contract claims did not

challenge the annexation of the property, but rather, the claims

sought to disconnect the property and to enforce the terms of the

pre-annexation agreement, which, they argue, “specifically provided

for disconnection.” We disagree.

¶ 29 The plaintiffs use several different terms — disconnection, de-

annexation, or withdrawal of the annexation petition — in their

brief seemingly interchangeably. We conclude that disconnection

and de-annexation are equivalent, but that withdrawal of an

annexation petition has a different meaning. We will discuss the

12
 definition of each term below because their meanings are essential

to our analysis.

¶ 30 We begin with “withdrawal of the annexation petition.” An

annexation petition is a petition presented to a municipality that is

signed by landowners in the area to be annexed. See § 31-12-

107(1), C.R.S. 2016. The petition for annexation enables the

annexation of a property and has significance only until the

property is actually annexed or the petition is withdrawn. See

generally Superior, 933 P.2d at 599 (discussing that a party

withdrew its petition for annexation so that it could petition a

different municipality to annex its property).

¶ 31 In contrast, disconnection procedures “disconnect” or “de-

annex” an annexed property from the municipality of which it was a

part. See §§ 31-12-501, -702, C.R.S. 2016; see generally Grandote

Golf & Country Club, LLC v. Town of La Veta, 252 P.3d 1196, 1199

(Colo. App. 2011) (discussing whether a later ordinance effectively

disconnected the property that a prior ordinance had purported to

annex). We conclude that disconnection and de-annexation are

analogous. The Act provides, as relevant here, for two avenues to

13
 achieve disconnection — by ordinance and by court decree.3 Under

section 31-12-501, a landowner “may apply to the governing

body . . . for the enactment of an ordinance disconnecting [its]

land,” and it is the duty of such governing body to “give due

consideration to [such] application.” As noted, the plaintiffs

requested disconnection of Golden Run from Erie, but Erie denied

their request. This request was made pursuant to the pre-

annexation agreement and did not cite section 13-12-501.

¶ 32 Under section 31-12-702, a landowner “may petition the

district court for the county in which such land is situated to have

the same disconnected from said incorporated town.” Although the

plaintiffs did not cite section 31-12-702 in their complaint, they

sought and obtained relief under this section when they asked for a

judicial disconnection of Golden Run from Erie. Erie does not

challenge the court’s judicial disconnection of Golden Run on

appeal.

3The Act also provides a third avenue to achieve disconnection in
part 6 of the Act, “Disconnection by Court Decree — Statutory
Cities.” § 31-12-601, C.R.S. 2016. We need not address this
section because Erie is a statutory town, not a statutory city, as
both parties stipulated before the trial court.

14
¶ 33 Thus, withdrawal of an annexation petition and disconnection

or de-annexation have different meanings. Withdrawing an

annexation petition relates to proceedings prior to annexation, and

disconnection or de-annexation relate to proceedings after

annexation. Withdrawing an annexation petition prevents an

annexation, and disconnection or de-annexation ends it.

¶ 34 Whatever term the plaintiffs wish to use — whether

disconnection, de-annexation, or withdrawing their annexation

petition — in interpreting their rights under the pre-annexation

agreement, we must first turn to the contract itself.4 Section 4A of

the contract provides that the plaintiffs “may retroactively withdraw

the Annexation Petition.” In our view, the plaintiffs could not seek

to invoke section 4A of the pre-annexation agreement to withdraw

their annexation petition after Erie had annexed Golden Run in its

ordinance. In contrast, their remedy under section 4A of the pre-

annexation agreement only applied before Erie annexed Golden

Run.

4In the plaintiffs’ brief, they also refer to requesting “retroactive
nullification” of the annexation petition. We need not address the
meaning of this phrase because it was not a remedy for which they
bargained in the contract, nor is it a remedy provided by statute.

15
¶ 35 We disagree with the plaintiffs’ contention that the word

“retroactive” enabled them to seek to withdraw their annexation

petition at any time, even after an annexation ordinance had been

adopted. Section 4A, after providing for retroactive withdrawal of

an annexation petition, then states that “the Property shall not be

annexed by Erie.” This language strongly suggests that withdrawal

of the annexation petition must precede the adoption of an

annexation ordinance. Also, the plaintiffs’ interpretation would lead

to an unreasonable result because it could allow rescission of an

ordinance after property had been bought and sold based on

expectations arising from the adoption of an annexation ordinance.

See First Christian Assembly of God, Montbello, 122 P.3d at 1092.

¶ 36 We further conclude, as discussed below, that the provision in

section 4A allowing retroactive withdrawal of a petition could only

be invoked consistently with the jurisdictional timeframe in section

31-12-116.

¶ 37 Also, the plaintiffs’ assertion that they did not challenge the

annexation is contrary to their own complaint and theory of breach

of contract. The plaintiffs’ breach of contract claim alleged that Erie

breached the pre-annexation agreement by “not processing the de-

16
 annexation of the Properties.” The plaintiffs’ second contract claim

arose out of their allegations that Erie was “exercising its discretion

in a commercially unreasonable fashion and without regard to the

intent of the parties when the pre-Annexation agreement was

executed.” Consequently, both claims related to the annexation.

The fact that the plaintiffs’ claims were based in contract does not

alter the claims’ status as ones that questioned Erie’s decision not

to allow the plaintiffs to withdraw their annexation petition of

Golden Run. See § 31-12-116(2)(a)(I) (applying to “actions to review

the findings and the decision of the governing body”).

¶ 38 Accordingly, we also conclude that the plaintiffs’ claims were

impermissible collateral attacks on the annexation. It is impossible

to find a breach of contract based on Erie’s alleged refusal to “de-

annex” Golden Run without questioning the annexation itself.

¶ 39 Having concluded that the plaintiffs’ claims related to the

annexation, we further conclude that section 31-12-116 applies to

bar their contract claims, as it governs “[a]ll such actions to review

the findings and the decision of the governing body.” § 31-12-

116(2)(a)(I); see also Superior, 933 P.2d at 600-02 (applying section

31-12-116 to a petition for annexation). We conclude that Erie’s

17
 decision not to agree to the plaintiffs’ requests to “withdraw” the

annexation petition was a “decision of the governing body.” § 31-

12-116(2)(a)(I).

¶ 40 We next conclude that the plaintiffs did not file a motion for

reconsideration or seek judicial relief within the limitation periods

as required. § 31-12-116(2)(a)(I), (II). As noted above, the

annexation became effective under Erie’s ordinances on November

15, 2013. Thus, the ten-day deadline to file a motion for

reconsideration lapsed on November 25, 2013, and the sixty-day

period for judicial review ran on January 14, 2014. The plaintiffs

did not file a motion to reconsider and did not seek judicial relief

until September 4, 2014. Further, the first time the plaintiffs

objected to the annexation was February 25, 2014, a full month

after the sixty-day limitation period ran.

¶ 41 As described above, section 31-12-116(2)(a)(I) is jurisdictional.

Fort Collins-Loveland Water Dist., 174 Colo. at 84, 482 P.2d at 989.

Even though neither party characterizes section 31-12-116(2)(a)(I)

as such, we conclude that it is a nonclaim statute. Such a statute

deprives a trial court of subject matter jurisdiction, and its time

limits cannot be tolled or waived. Like other nonclaim statutes,

18
section 31-12-116(2)(a)(I) provides that certain claims are

“forever . . . barred” if not brought within statutorily specified

periods. See § 15-12-1006, C.R.S. 2016 (claims against

distributees are “forever barred” after limitation period); In re Estate

of Shuler, 981 P.2d 1109, 1114 (Colo. App. 1999) (holding that

section 15-12-1006 is a nonclaim statute and deprives the trial

court of subject matter jurisdiction when it is applicable); see also

§ 24-10-109, C.R.S. 2016 (stating that under the Colorado

Governmental Immunity Act, claims against government must be

brought within limitation period or are “forever barred”); Barnhill v.

Pub. Serv. Co. of Colo., 649 P.2d 716, 718 (Colo. App. 1982) (holding

that section 24-10-109 is a nonclaim statute and imposes “a

condition precedent, namely, filing notice within the time specified,

to the enforcement of the right of action for the benefit of the party

against whom the claim is made”), aff’d, 690 P.2d 1248 (Colo.

1984); see also Marin Metropolitan Dist. v. Landmark Towers Ass’n,

Inc., 2014 COA 40, ¶ 43, ___ P.3d ___. ___ (section 32-1-105(7),

C.R.S. 2016 creates jurisdictional bar to review of district’s court’s

ruling regarding creation of special metropolitan district).

Therefore, section 31-12-116(2)(a)(I) is a nonclaim statute whose

19
 time limitations cannot be waived or tolled by a contract or other

agreement. See First Interstate Bank of Denver, N.A. v. Cent. Bank

& Tr. Co. of Denver, 937 P.2d 855, 861 (Colo. App. 1996) (holding

that “parties cannot waive jurisdictional requirements”).

¶ 42 Because section 31-12-116(2)(a)(I) is a nonclaim statute, the

parties’ pre-annexation agreement could not waive the sixty-day

limitation period. Thus, even if we assume that the plaintiffs could

“retroactively withdraw their petition” as provided in section 4A,

they needed to withdraw their annexation petition within the sixty-

day jurisdictional limitation period or section 31-12-116 would

extinguish their claim.5

¶ 43 Nevertheless, the plaintiffs rely on Geralnes B.V. v. City of

Greenwood Village, 583 F. Supp. 830 (D. Colo. 1984), to argue that

where parties do not challenge the annexation of property, but,

rather, seek disconnection in accordance with their contract terms,

the complaint is not subject to dismissal for failure to file suit

within the Act’s deadlines. However, unlike the plaintiffs here, the

5 The plaintiffs continuously argued that they were entitled to
“retroactive nullification” of the annexation petition. Because of our
disposition, we need not address whether the plaintiffs’ use of that
language had any significance.

20
 plaintiff in Geralnes bargained specifically for the “remedy of

disconnection of the Property . . . in accordance with” section 31-

12-119 C.R.S. 2016; Id. at 838. Because section 31-12-119 has not

been changed since the Geralnes B.V. case, the version that the

court considered is the same as the current one: 31-12-119, C.R.S.

2016. In the pre-annexation agreement, the plaintiffs contracted

only for the right to “retroactively withdraw the Annexation

Petition.” The pre-annexation agreement is unambiguous.

Disconnection is not a remedy contained in the plaintiffs’ pre-

annexation agreement.

¶ 44 The plaintiffs also contend that Erie’s interpretation of the Act

would enable a municipality to lure a landowner into annexation

under the premise of fulfilling certain promises, only to repudiate

those promises when annexation had been accomplished, which

would be unfair, unjust, and bad public policy. We disagree. The

plaintiffs, in confusing the meanings of withdrawing an annexation

petition and disconnection, misconstrue the consequences of our

statutory interpretation.

¶ 45 A municipality would not be able to “lure” a landowner and

repudiate its promises with no remedy for the landowner. Rather, if

21
 a municipality does not fulfill its promises, a landowner has two

remedies: either follow the procedures set forth in section 31-12-

116 and challenge the annexation within sixty days or request a

disconnection under section 31-12-501. If the municipality is a

town and refuses to disconnect the property, the landowner may

still request a judicial decree disconnecting the property. See § 31-

21-702. The fact that the plaintiffs obtained a judicial decree

disconnecting the property weakens their argument on appeal.

¶ 46 Therefore, we conclude that the trial court lacked subject

matter jurisdiction over the plaintiffs’ contract claims.6

III. Attorney Fees and Costs

¶ 47 Erie requests that, if we determine that the trial court lacked

subject matter jurisdiction over the plaintiffs’ breach of contract

claims, we award it attorney fees and costs under section 31-12-

116(2)(a)(IV). Erie also requests attorney fees and costs under

section 14 of the pre-annexation agreement if it prevails. Likewise,

6 We also conclude that the trial court was precluded from
considering the plaintiffs’ contract claims under section 31-12-
116(2)(a)(I), C.R.S. 2016, because they failed to timely file a motion
to reconsider, which was a condition precedent to judicial review.

22
 the plaintiffs request that we award them attorney fees pursuant to

the pre-annexation agreement.

¶ 48 Section 14 of the pre-annexation agreement provides that

“once an award has been made . . . by a court, the defaulting party

shall pay the other’s reasonable attorney’s fees and other costs

incurred in enforcing the provision of this Pre-Annexation

Agreement.”

¶ 49 Because we conclude that the trial court lacked subject matter

jurisdiction to consider the plaintiffs’ contract claims, we award Erie

reasonable attorney fees in prosecuting this appeal under section

14 of the pre-annexation agreement and section 31-12-116(2)(a)(IV).

The amount of fees shall be determined by the trial court. See

C.A.R. 39.1.

IV. Conclusion

¶ 50 The judgment on the plaintiffs’ contract claims is vacated. The

jury’s award of damages is vacated, and the case is remanded with

directions to grant Erie’s motion for directed verdict and for a

determination of the amount of attorney fees incurred by Erie for

this appeal.

JUDGE FREYRE and JUDGE NIETO concur.

23