Hawley v. Mowatt

Citations: 160 P.3d 421; 2007 Colo. App. LEXIS 603; 2007 WL 1017621Docket: 05CA1572

Court: Colorado Court of Appeals; April 5, 2007; Colorado; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

In the case of Hawley v. Mowatt, the Colorado Court of Appeals addressed a dispute involving trespass claims between adjacent property owners, Norma A. Hawley and Larry N. Hawley, and David S. Mowatt. The trial court ruled in favor of the Hawleys, awarding them $15,000 in actual damages and $15,000 in exemplary damages, while also granting injunctive relief. Mowatt's counterclaims for trespass and adverse possession were rejected, and the trial court directed a verdict in favor of the Hawleys on these counterclaims. 

The trial included evidence of various damages claimed by the Hawleys, such as direct losses, inconvenience, and the reasonable cost of restoring their property, with the jury instructed to consider damages incurred up to the trial date. However, damages for emotional distress were excluded from consideration. Mowatt challenged the trial court’s decisions regarding the scope of damages and the admissibility of certain testimony, arguing that only damages up to the filing of the complaint should be recoverable. The court upheld the trial court's decisions, emphasizing that compensatory damages aim to fully reimburse a property owner for actual losses sustained. 

The appellate court affirmed the judgment in favor of the Hawleys, vacated the order denying their attorney fees, and remanded the case for further proceedings on that issue.

Damages in a trespass claim vary based on whether the claim involves a "continuing trespass" or a "permanent trespass." A continuing trespass occurs when harmful conditions remain on another's property, while a permanent trespass involves a long-lasting property invasion, such as an irrigation ditch, that has lawful authority and social benefits. In cases of permanent trespass, landowners can recover past and future damages, whereas those affected by a continuing trespass cannot recover for future damages. 

In the current case, the Hawleys were involved in a continuing trespass, which had not been resolved by trial, limiting their recovery to losses incurred before filing their complaint, although they also claimed certain expenses incurred post-filing. The trial court allowed the jury to consider these post-filing damages, and this decision was not found to be erroneous, as there is no Colorado precedent directly addressing this issue. Other jurisdictions show differing views on whether damages after the lawsuit begins are recoverable in continuing trespass cases, with some allowing recovery if the damages stem from actions before the lawsuit. Generally, damages from a continuing trespass are recoverable only up to the commencement of the action, as any ongoing trespass after that date creates a new cause of action.

All damages resulting directly and naturally from an act can be recovered, even if they accrue after a lawsuit is initiated. Mowatt argues against the Hawleys' recovery of damages incurred post-commencement, referencing three Colorado Supreme Court cases: Hoery v. United States, Zimmerman v. Hinderlider, and Denver City Irrigation Water Co. v. Middaugh. In Hoery, the court noted that damages for continuing torts are available but limited to injuries sustained up to the time of suit, while Middaugh clarified that for non-permanent torts, damages are limited to those before the suit begins, but for permanent torts, full damages can be claimed. Zimmerman allowed recovery for all damages during the statutory period before the action commenced. However, the court concludes that the language cited by Mowatt is either non-binding or contextually different from the current issue. The critical questions in Hoery related to whether ongoing toxic migration constituted a continuing tort, relevant to statute of limitations considerations, and Middaugh's discussion was in the context of condemnation proceedings. The court found that a plaintiff in a continuing trespass case can recover all past damages incurred during the limitations period, even those accrued after the action started but before trial. Denying such recovery would leave the plaintiff inadequately compensated, necessitating a separate action for post-filing damages, which is not supported by judicial economy or reason.

Recovery for proven losses sustained due to an ongoing trespass is permissible up to the trial date without concerns over future damages. The trial court correctly allowed the jury to consider damages incurred by the Hawleys after filing their action. Mowatt's objection regarding the Hawleys’ testimony on non-recoverable damages was unfounded; damages for trespass can encompass various categories, including loss of use and annoyance, but not "pure" emotional distress. The trial court sustained an objection to testimony about emotional distress while permitting testimony related to inconvenience and expenses incurred due to litigation. Mowatt's challenge regarding the admissibility of Larry Hawley’s litigation-related expenses was deemed harmless, as the jury was instructed that such costs were not recoverable as trespass damages. The court clarified this guidance in response to jury questions, reinforcing that travel costs and lost income related to litigation were not damages attributable to the trespass. Mowatt did not object to certain testimony at trial, limiting appeal on those points. Additionally, Mowatt's claim to reverse the award of costs to the Hawleys was not addressed, as he failed to object at trial or provide reasoning for his appeal.

In Short v. Downs, the court emphasized the requirement for appellants to specify alleged errors for effective review. The Hawleys, in their cross-appeal, argued that the trial court wrongly denied their motion for attorney fees incurred while defending against Mowatt's counterclaims and affirmative defenses. The statute, C.R.S. § 13-17-102(2), mandates the award of reasonable attorney fees in cases deemed to lack substantial justification, defined as frivolous, groundless, or vexatious. A claim is frivolous if it lacks any rational basis, and groundless if it is not supported by credible evidence at trial.

The trial court found insufficient evidence for Mowatt's adverse possession claim and consent defense, leading to a directed verdict in favor of the Hawleys. Despite this, the court denied the attorney fee motion, misinterpreting the standard for groundlessness and frivolousness. The appellate court noted that the trial court's rationale for denying fees was inconsistent with its own findings that supported the directed verdict. Consequently, the denial of the attorney fee motion was vacated, and the case was remanded for reconsideration, with instructions for the trial court to hold a hearing if requested and to provide findings justifying its decision, particularly if fees are awarded. The original judgment was affirmed, but the order regarding attorney fees was remanded for further assessment.