Public School District v. Stapleton Gateway LLC

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 23, 2020

2020COA73

No. 19CA0191, Aurora Public School District v. Stapleton
Gateway LLC — Eminent Domain — Deposits — Withdrawal of
Deposits

A division of the court of appeals concludes, as a matter of

first impression and under the facts of this case, that a

condemnation deposit withdrawn with the parties’ consent from a

district court registry need not be immediately returned to the

registry when the condemnation is abandoned. Because the district

court retains jurisdiction over the deposit, the withdrawing party

may retain those funds until the condemnation damages proceeding

is completed but must return any excess beyond the party’s actual

damages.
COLORADO COURT OF APPEALS 2020COA73

Court of Appeals No. 19CA0191
Adams County District Court No. 16CV31107
Honorable Edward C. Moss, Judge

Aurora Public School District, a school district in the State of Colorado,

Petitioner-Appellant,

v.

Stapleton Gateway LLC, a Colorado limited liability company,

Respondent-Appellee.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE FREYRE
Richman and Grove, JJ., concur

Announced April 23, 2020

Hamre, Rodriguez, Ostrander, & Dingess P.C., Richard F. Rodriguez, Donald M.
Ostrander, Denver, Colorado, for Petitioner-Appellant

Faegre Drinker Biddle & Reath, LLP, John R. Sperber, Sean J. Metherell,
Denver, Colorado, for Respondent-Appellee
¶1 In this abandoned condemnation action, we are asked to

decide whether a security deposit withdrawn from the court registry

must be immediately returned to the court registry when the

condemnation is abandoned and the award of damages arising from

the abandonment is still pending. Condemnor, Aurora Public

School District (APS), appeals the district court’s order denying its

request for the deposit’s immediate return to the court registry by

condemnee, Stapleton Gateway LLC (Stapleton), after APS

abandoned the condemnation. Recognizing that the condemnation

statute is silent on this issue and that the district court retains

jurisdiction over the deposit pending the damages resolution, we

hold that a district court retains discretion over the location of the

deposit. Under the particular circumstances of this case, Stapleton

is not required to return the deposit to the court registry before

resolving its claim for abandonment damages and, therefore, we

affirm the court’s judgment.

I. Factual and Procedural Background

¶2 Stapleton purchased a commercial property (property) that is

adjacent to an APS school and parking lot. The property covers a

city block and supports multiple two-story office buildings

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connected to warehouses. APS adopted a resolution to expand the

school by purchasing Stapleton’s property. When Stapleton refused

APS’s offers, APS filed a condemnation petition, but did not seek

immediate possession of the property.

¶3 While the parties were scheduling the valuation trial, APS

informed Stapleton that it would need to demolish the structures on

the property no later than the spring of 2018. Therefore, APS

requested “limited possession of the property” for any lawful

purposes including, without limitation, surveying, testing, and

inspecting the property. Consequently, the parties filed a

stipulation for limited possession (stipulation) with the court that

allowed APS, upon depositing $2.7 million into the court registry, to

take limited possession of the property on April 1, 2018, several

weeks before the valuation trial. The stipulation also allowed

Stapleton to withdraw 100% of the deposit with notice to and

consent from APS. APS deposited $2.7 million into the registry on

December 19, 2017.

¶4 On January 3, 2018, Stapleton moved, with APS’s consent, to

withdraw $2.7 million from the registry. Three days later, the

district court granted Stapleton’s motion and ordered disbursement

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of the entire deposit. Neither the stipulation, the motion to

withdraw funds, nor the court’s order allowing the withdrawal

contained any provision limiting Stapleton’s use of the deposit or

provided for the money to be refunded in the event the

condemnation was abandoned. Stapleton used the money to fund

two new real estate purchases.

¶5 On February 7, 2018, APS notified Stapleton that it was

abandoning the condemnation, and it filed a “Motion for Forthwith

Order Directing Return of Funds” (forthwith motion) requesting that

Stapleton return the $2.7 million deposit to the court registry.

Stapleton moved to preclude abandonment under the equitable

estoppel doctrine. The district court denied Stapleton’s attempt to

preclude abandonment, and a division of this court affirmed the

district court’s order. See Aurora Pub. Sch. Dist. v. Stapleton

Gateway LLC, (Colo. App. No. 18CA1502 & 18CA1922, Oct. 31,

2019) (not published pursuant to C.A.R. 35(e)) (cert. denied Apr. 20,

2020).1

1 The court’s denial of Stapleton’s attorney fees was also affirmed.

3
¶6 Thereafter, the parties filed a “Joint Motion and Stipulation

Regarding Proceedings” (joint motion). In the joint motion, they

agreed that Stapleton had a claim for abandonment damages and

the right to pursue “all consequential damages associated with this

Condemnation Action and APS’s abandonment” in a separate action

(damages case). The joint motion stated that Stapleton “will pursue

such a claim seeking all consequential damages . . . in a separately

filed case.”

¶7 The joint motion also provided that one of the remaining

issues for the court to decide was APS’s forthwith motion for return

of the $2.7 million. The court granted the joint motion, using the

above-quoted language to describe Stapleton’s obligation to file a

separate case, and requested briefing on the forthwith motion.

¶8 After considering the parties’ legal arguments, the district

court denied APS’s forthwith motion. Therefore, the narrow

question we consider is whether, under these facts, Stapleton must

return $2.7 million to the registry before the court determines

abandonment damages as part of a separately filed case.

¶9 We answer that question “no” for three reasons. First,

well-settled Colorado law recognizes that a condemnation deposit

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functions as security for payment of damages suffered by a

landowner due to abandonment. Swift v. Smith, 119 Colo. 126,

135, 201 P.2d 609, 613-14 (1948). Second, the district court

retains jurisdiction and control over the deposit, whether it resides

in the registry or remains invested in real estate. See United States

v. Miller, 317 U.S. 369, 381 (1943). Third, section 38-1-105(6)(b),

C.R.S. 2019, recognizes a relationship between the deposit and the

total value of the condemned property and permits the court clerk

to offset withdrawals from the deposit against compensation due or

damages awarded to a condemnee in the event of abandonment of

the condemnation proceeding. See Johnson v. Climax Molybdenum

Co., 109 Colo. 308, 310, 124 P.2d 929, 931 (1942) (citing Denver &

New Orleans R.R. Co. v. Lamborn, 8 Colo. 380, 385, 8 P. 582, 585

(1885)). Therefore, as a practical matter, it makes little sense for

Stapleton to incur additional expenses in selling the property that it

acquired to replace the parcel that APS condemned just to return

$2.7 million to the registry when Stapleton may be entitled to some

of the deposit following the damages hearing. See First Interstate

Bank v. Tanktech, Inc., 864 P.2d 116, 121 (Colo. 1993) (“Common

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sense suggests that this is a correct result . . . .”). Accordingly, we

affirm the court’s order.

II. Scope of the Appeal

¶ 10 Initially, we address the scope of this appeal. APS argues at

length in its opening brief that Stapleton must return the deposit to

the registry because (1) the deposit cannot legally serve as security

for abandonment damages and (2) there can be no damages since

APS never took possession of the property. However, the parties’

joint motion belies these arguments because the parties agreed that

Stapleton has a claim for abandonment damages and the right to

pursue all consequential damages associated with the

condemnation action, subject to APS’s contrary argument.

Moreover, they agreed that all issues related to abandonment

damages would be litigated in a separate damages case. Therefore,

we decline to address APS’s legal arguments pertaining to damages,

as they are beyond the scope of the narrow issue appealed. See

Crown Life Ins. Co. v. Haag Ltd. P’ship, 929 P.2d 42, 45 (Colo. App.

1996) (declining to address issue not presented to the trial court);

People in Interest of C.K.G. v. C.D.G., 505 P.2d 979, 982 (Colo. App.

6
1972) (not published pursuant to C.A.R. 35(f)) (declining to address

issues outside the scope of appeal).

III. Condemnation Deposit

¶ 11 APS contends that Stapleton cannot retain the condemnation

deposit and must return it to the court registry immediately.

Beyond the legal arguments not properly before us, APS cites no

authority for this contention but asserts that “it should not have to

live unprotected for years and merely hope that Stapleton is still

around and has the ability to repay the funds if the future damage

claims are ultimately unsuccessful.” Because we agree with the

district court’s legal analysis, we affirm its judgment.

A. Standard of Review and Law

¶ 12 A court’s interpretation of the eminent domain statutes

presents a question of law that we review de novo. E-470 Pub.

Highway Auth. v. 455 Co., 3 P.3d 18, 22 (Colo. 2000); Palizzi v. City

of Brighton, 228 P.3d 957, 962 (Colo. 2010).

¶ 13 Section 38-1-105(6)(a) provides that a court may authorize a

condemnor to take possession of the property it seeks to condemn if

the condemnor deposits a sum with the court sufficient to pay the

compensation when it is later ascertained. “[T]he purpose of

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requiring a deposit is to provide the [condemnee] with security for

the payment of compensation and damages to be ultimately

awarded.” City of Englewood v. Reffel, 34 Colo. App. 103, 108, 522

P.2d 1241, 1244 (1974); see also Swift, 119 Colo. at 135, 201 P.2d

at 613-14 (same). Withdrawals from the deposit are provisional,

pending final ascertainment of compensation and damages. Swift,

119 Colo. at 135, 201 P.2d at 613-14; City of Englewood, 34 Colo.

App. at 108, 522 P.2d at 1244.

¶ 14 As relevant here, section 38-1-105(6)(b) provides that,

[u]pon proper application to the court or by
stipulation between the parties, the
[condemnee] may withdraw from the sum so
deposited an amount not to exceed
three-fourths of the highest valuation
evidenced or testimony presented by the
[condemnor] at the hearing for possession,
unless the [condemnor] agrees to a larger
withdrawal, if all parties interested in the
property sought to be acquired consent and
agree to such withdrawal. Any such
withdrawal of said deposit shall be a partial
payment of the amount of total compensation
to be paid and shall be deducted by the clerk
of the court from any award or verdict entered
thereafter.

¶ 15 While the statute plainly permits the withdrawn funds to offset

the compensation payment, our supreme court has long held that

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the withdrawn funds may also be used to offset a landowner’s

damages flowing from the abandoned condemnation action. See

Lamborn, 8 Colo. at 382, 8 P. at 583.

B. Analysis

¶ 16 The district court determined that no Colorado law required

the deposit’s return to the court registry in advance of the damages

determination. First, it noted that section 38-1-105(6) is silent

regarding who should hold the deposit pending an abandonment or

consequential damages determination. Next, it noted that one

purpose of the deposit was to serve as security for any

abandonment damages. And it found that it retained jurisdiction

and control over the deposit under Miller. See Miller, 317 U.S. at

382 (district court “retain[s] jurisdiction” over a condemnation

deposit pending a final damages determination). We agree with this

analysis.

¶ 17 We are not persuaded by APS’s assertion that the district

court’s reliance on Miller was misplaced because the court’s actual

control, as opposed to its jurisdiction, over the deposit is at issue.

APS cites no authority to support this argument, nor have we found

any. We have, however, found authority in other jurisdictions to

9
support Stapleton’s contention that it may retain the deposit until

damages are determined. See People v. Weiss, 133 P.3d 1180, 1187

(Colo. 2006) (“Although not binding as precedent, we may look to

decisions of other jurisdictions for persuasive guidance on matters

that are of first impression to us.”).

¶ 18 In Los Angeles Unified School District v. Wilshire Center

Marketplace, 108 Cal. Rptr. 2d. 691, 693 (Ct. App. 2001), the

condemnor deposited approximately $48 million with the court.

The condemnee withdrew the entire amount after the condemnor

abandoned the condemnation but before the final damages

determination. Id. Although the location of the withdrawn funds

was not at issue, the condemnee retained possession of the entire

deposit and did not return it to the court registry before damages

were determined. Id. at 694. When roughly $3 million in damages

was awarded, the court ordered the condemnee to return the $45

million excess. Id. This outcome is consistent with Colorado law,

Swift, 119 Colo. at 135, 201 P.2d at 613-14, and the law of many

other jurisdictions, see Reynolds v. La., Ark. & Mo. Ry. Co., 26 S.W.

1039, 1039 (Ark. 1894); City of Downey v. Johnson, 145 Cal. Rptr.

298, 299 (Ct. App. 1978); Kellett v. Dep’t of Transp., 329 S.E.2d

10
514, 516 (Ga. Ct. App. 1985); Dep’t of Transp. v. New Century Eng’g

& Dev. Corp., 454 N.E.2d 635, 637 (Ill. 1983); Hunsaker v. Ky. Dep’t

of Transp., Dep’t of Highways, 239 S.W.3d 68, 70 (Ky. 2007); La. ex

rel. Dep’t of Highways v. Busch, 225 So. 2d 208, 210 (La. 1969); St.

Louis, Keokuk & Nw. R.R. Co. v. Knapp, Stout & Co., 61 S.W. 300,

305 (Mo. 1901); Blecha v. Sch. Dist., 112 N.W.2d 783, 786 (Neb.

1962); Oregon ex rel. Dep’t of Transp. v. Montgomery Ward Dev.

Corp., 719 P.2d 507, 510-11 (Or. Ct. App. 1986); Sunbelt Props. v.

Texas, No. 08-02-00322-CV, 2003 WL 756718, at *3 (Tex. App.

Mar. 6, 2003) (unpublished opinion). Indeed, Stapleton concedes

that if damages are less than $2.7 million, it must return the excess

to APS.

¶ 19 Significantly, APS consented to Stapleton’s withdrawal of the

entire deposit, attached no limitations to Stapleton’s use of the

deposit, stipulated that Stapleton had a claim for compensatory

damages related to the condemnation action, and agreed to litigate

those damages in a separate action. APS does not explain why

Stapleton should now be required to incur the expense of placing

the deposit back into the court registry, other than to reference its

own ability to recover the money if it prevails in the damages

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hearing. Absent some authority requiring this procedural

requirement, we will not read it into section 38-1-105(6)(b).

Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (“We do not add

words to the statute or subtract words from it.”).

IV. Conclusion

¶ 20 The judgment is affirmed.

JUDGE RICHMAN and JUDGE GROVE concur.

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