Fry v. Board of County Commissioners of Baca

Citation: 7 F.3d 936Docket: Nos. 92-1091, 92-1138 and 92-1143

Court: Court of Appeals for the Tenth Circuit; October 14, 1993; Federal Appellate Court

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Wesley E. Brown, Senior District Judge, presided over a civil rights action initiated by the Fry family regarding the establishment of a service road on their land in Baca County, Colorado. The defendants include the Baca County Board of County Commissioners and individual commissioners Self, Brinkley, and Smith, alongside local landowners Turner, Boaldin, and Moore. The Frys claim damages and injunctive relief under 42 U.S.C. § 1983, alleging that the defendants conspired to vacate the road in retaliation for their First Amendment rights and in violation of their rights to due process and equal protection. Prior to trial, the district court granted summary judgment for the commissioners on both official and individual capacity claims. A jury trial commenced on March 2, 1992, but on March 9, the court dismissed all remaining claims against the defendants under Rule 50, Fed. R. Civ. P., and denied defendants' motions for attorney fees and costs. The Frys appeal, arguing the court erred in determining insufficient evidence of constitutional rights deprivation and in its conclusions regarding collateral estoppel, immunity for individual commissioners, and the standing of plaintiffs Lisa and Dallas Fry. Defendants cross-appeal for fees and costs under 42 U.S.C. § 1988. The appellate court reviews the directed verdict under a de novo standard, assessing whether evidence existed for a jury verdict against the defendants. The Frys own approximately 4,930 acres of land straddling the Oklahoma-Colorado border, with no established road connecting their Colorado property to their Oklahoma operations. The area is sparsely populated, with the nearest residents living in Kansas.

The Frys have access to their Colorado land via a route along County Road No. 57, which extends approximately 12.3 miles to their Oklahoma headquarters. Following their Colorado land purchase, the Frys attempted to establish a direct road from their Oklahoma operation to Colorado, which would have reduced the distance to 5.2 miles. However, in September 1985, the Baca County Commissioners informed the Frys that they needed consent from affected landowners to open the road. Subsequently, on October 31, 1985, Dewayne Fry filed a lawsuit against the Board of County Commissioners, seeking a declaratory judgment that a 1911 resolution designated all section lines in Baca County as county roads, thereby allowing access between their properties. In January 1986, the lawsuit was amended to include three landowners as defendants: Johnny B. Boaldin, Richard Turner, and Verne Moore.

Prior to 1985, the Frys had amicable relationships with these landowners, which soured after the Frys purchased the Colorado land. In July 1985, the Frys sued Moore and his wife for allegedly breaching a right-of-way agreement. Turner, who felt betrayed after losing a bid for the Colorado farm, claimed the Frys owed him $20,000 from past trades. Tensions escalated when Turner disrupted a gas line service to the Frys. Boaldin, Moore's stepson, was also upset by the Frys' lawsuit against Moore and claimed the Frys owed him $1,700 related to previous work and a dispute over a fence.

On April 30, 1986, Turner, Boaldin, and Moore petitioned the Baca County Board of Commissioners to vacate around 40 miles of section line roads, including the proposed access road for the Frys. The county commissioners denied this petition on July 7, 1986. Tensions further escalated during a heated election campaign for the county commissioner position, with both the Frys and the landowners campaigning for and against the re-election of Commissioner Don Self, who ultimately won the primary election on August 12, 1986. The situation included complaints from the landowners about potentially defamatory statements made by the Frys in local media.

On November 13, 1986, a state district court granted partial summary judgment in favor of Dewayne Fry, establishing a public highway 30 feet on either side of section lines in specific sections of land, and restraining defendants from obstructing its use. The court ordered landowners to remove fences along the highway. Following this, on December 18, 1986, landowners Turner, Moore, and Boaldin petitioned the Baca County Commissioners to vacate approximately 3.5 miles of section line roadways. The board held a public hearing on December 31, resulting in a 2-to-1 vote to vacate the road, with specific findings including majority opposition from affected landowners, concerns about soil erosion, insufficient public need, and adequate existing public access. 

In January 1987, the Frys filed a second lawsuit in the District Court of Baca County, alleging constitutional violations and an inverse condemnation claim regarding the board's actions. While this state case was pending, the Frys initiated a federal lawsuit under 42 U.S.C.A. 1983 on October 31, 1988, claiming denial of constitutional rights. The federal court denied a motion to dismiss and administratively closed the case pending the state court's outcome. In December 1990, the state court ruled in Case No. 87CV4 that the vacation of the roadway did not constitute a compensable taking of property, referencing a prior Supreme Court of Colorado ruling that found no substantial impairment of access when one access point was removed. The court noted the Frys would face an additional 70 to 80 miles of travel for farming activities, which was not deemed unusual for the area.

Plaintiffs claimed damages due to a landowner's closure of a natural gas valve, which they argued increased their irrigation fuel costs. However, the state court determined that the damages were a result of the valve closure rather than the vacation of the roadway. The Baca County District Court's findings were upheld on appeal, with the Colorado Court of Appeals concluding that landowners do not automatically receive compensation for denied access unless there is a substantial impairment of access. The court noted that mere inconvenience without a loss greater than that experienced by the general public does not warrant damages.

The appellate court also affirmed the procedural correctness of the county commission's actions regarding the road vacation, stating that the discussions were held in an open meeting and there was no evidence of undue influence by the county attorney. Consequently, the resolution was deemed valid. Following the state court's decision, a federal case was reopened, where the federal district court denied the landowners' motion to dismiss but granted summary judgment for the commissioners based on their legislative immunity. The court referenced Tenney v. Brandhove, emphasizing that legislators are protected from liability for actions taken in their legislative capacity to ensure the uninhibited performance of their duties. This protection prevents them from being subject to lawsuits based on speculative interpretations of their motives.

The district court ruled that the commissioners were entitled to absolute legislative immunity, determining that the resolution to vacate the roads was a legitimate legislative act under Colorado law. The court noted that the issue was of public interest, with the decision made during an open meeting where all parties could express their views. The court found valid governmental reasons behind the commissioners' actions, dismissing claims of pretext or ulterior motives regarding harm to the Frys. Although the plaintiffs were allowed to present their case to the jury, the court directed a verdict for the defendants, concluding that the plaintiffs failed to provide sufficient evidence of constitutional violations. The court clarified that communications between landowners and commissioners did not imply improper influence, as citizens have the right to communicate with elected officials and advocate for their interests. The trial court ruled that the landowners' successful petition to vacate the road did not indicate collusion with the commissioners. Consequently, the plaintiffs' lack of evidence for a conspiracy under 42 U.S.C. § 1983 led to the affirmation of the district court's judgment in favor of the defendants. Regarding attorney fees under 42 U.S.C. § 1988, the court exercised discretion, indicating that fees may only be awarded if claims are deemed frivolous or unreasonable. The trial court denied fees to the landowners and the board, stating that the insufficiency of the plaintiffs' evidence only became evident after their case was fully presented.

The board of commissioners asserts it is entitled to recover additional costs due to a Rule 68 offer of judgment made to the plaintiffs, amounting to $7,500 for all claims, attorney fees, and costs, which the plaintiffs did not accept. Under Rule 68, if the plaintiffs' eventual judgment is less favorable than the offer, they must pay costs incurred post-offer. The district court, referencing the Delta Air ruling, concluded that Rule 68 applies only when the plaintiffs prevail but recover less than the offer, and thus, declined to award the defendants attorney fees and additional costs. This decision was affirmed by the appellate court. 

Defendant Richard Turner passed away during the appeal, having placed his assets in an irrevocable living trust, which will not undergo probate proceedings. Under Fed.R.App. P. 43, the appeal will continue without a party substitution for Turner’s estate. 

Regarding trial proceedings, Rule 50(a) allows for judgment as a matter of law if a party lacks a sufficient evidentiary basis for their claims. Commissioner Self testified that the disputed area was largely barren, lacking attractions or access, making it unlikely for anyone to travel through it. Dan Witcher, a former defendant, testified about purchasing isolated land in Baca County. The defendant landowners reside in Elkhart, Morton County, Kansas, with specific sections of land owned or leased by Turner, Moore, and Boaldin in Cimarron County, Oklahoma, and Baca County, Colorado.

Mr. Moore initially consented to grant an easement for a gas line to Fry but later retracted his agreement. The Frys dismissed their suit without prejudice on September 18, 1985. Boaldin testified that they sought to vacate 40 miles of roads due to concerns over a 1911 resolution that allowed public access to section lines across their land. A petition, signed by Dallas and Lisa Fry and others, requested the closure of these roads, with 16 signatories being absentee landowners. On April 11, 1986, a state court issued a preliminary injunction after a hearing. The 1911 resolution declared all township and section lines in Baca County as public highways of sixty feet wide, leading to the requirement for the defendant landowners to remove fences within this right-of-way.

Dan Witcher and his wife, who initially supported the petition, later withdrew their endorsement. Testimony from the deceased Mr. Smith, presented via deposition, reflected his opposition to vacating section lines. On October 30, 1991, plaintiffs moved to amend their complaint to include Dallas and Lisa Fry, which was granted on November 6, 1991. The Baca County District Court had previously relied on an appellate decision that granted damages to landowners when access was denied, but after the Colorado Supreme Court reversed that case, the court reassessed whether vacating the Frys' roadway constituted a legal taking. 

The Frys faced increased travel distances for transporting equipment necessary for their agricultural operations, as the existing route was significantly longer than the section line roads. Although they claimed potential use of the vacated roads for gas line installation from their Oklahoma property, this was contingent upon obtaining necessary permits. The plaintiffs alleged violations of Colorado's open meeting laws by the county commissioners, claiming this rendered the roadway vacating resolution void, and contended that the county attorney's involvement was improper. The trial court previously denied motions for summary judgment and dismissal, noting potential chilling effects on citizens' rights to petition the government. The court did not address issues of damages or the standing of Dallas and Lisa Fry. Under Section 1988, the court may award reasonable attorney's fees to the prevailing party. The Delta Air decision remains law despite criticism, and proposed amendments to expand its scope were not enacted.