Board of County Commissioners v. Auslaender , 710 P.2d 1180 ( 1985 )

STERNBERG, Judge,

dissenting.

It is clear that under § 13-16-121, C.R.S. (1983 Cum.Supp.), as interpreted by Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984), attorney fees may be awarded as an item of costs against a prevailing party only if it is found that the underlying action was frivolous. Also clear is the definition of frivolity: that there is no rational argument based on the evidence or the law supporting the claim brought in the underlying action. Western United Realty, Inc. v. Isaacs, supra.

Here, it is significant to me that this was a claim brought by a public entity seeking condemnation — an action which it had the power to bring. In my view, there was a rational argument based on the evidence presented that the offer made in a letter dated June 29, 1983, was sufficient to satisfy the statutory prerequisite of good faith negotiations. Similarly, a rational argument based on the law could be made that the later adoption by the county commissioners of a resolution authorizing the condemnation action previously filed was sufficient to validate the action under a nunc 'pro tunc theory.

The fact that in both instances the trial court did not accept the argument of the county does not mean that the county’s contentions were without a rational basis. A court’s rejection of a legal theory or a factual premise does not necessarily mean the theory or premise was totally irrational. There is a difference between being irrational and being wrong. The trial court recognized the difference between an irrational argument and one that is merely mistaken when it ruled against the county, but found the suit not to be frivolous and therefore declined to award attorney fees.

For these reasons I respectfully dissent from the majority opinion, and in my view the judgment of the trial court should be affirmed.