HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 020 - CITY DEFENDANT'S MOTION FOR CLARIFICATIONFORT COLLINS MUNICIPAL COURT
214 N. Mason
Fort Collins, CO 80521
Phone: (970) 221-6800
Plaintiffs: Eric Sutherland; and J&M Distributing
d/b/a Fort Collins Muffler and Automotive
V.
Defendants: THE CITY COUNCIL OF THE CITY OF COURT USE ONLY
FORT COLLINS, the governing body of a Colorado
municipal corporation; and THE ADMINISTRATION
BRANCH OF THE CITY OF FORT COLLINS, by and
through its City Manager, Darin Atteberry.
Intervenor: NEXT CHAPTER PROPERTIES, LLC,
an Illinois Limited Liability Company.
Kimberly B. Schutt, #25947 Case Number:
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3 2018-CIVILOI
P.O. Box 2166, Fort Collins, CO 80522
Phone Number: (970) 482-4011
E-mail: kschutt@wicklaw.com
FAX Number: 970 482-8929
CITY DEFENDANTS'
MOTION FOR CLARIFICATION
COMES NOW the City of Fort Collins ("the City"), on behalf of the City Council of the
City of Fort Collins and the improperly named "Administration Branch of the City of Fort
Collins," through its counsel, Kimberly B. Schutt of Wick & Trautwein, LLC, and respectfully
moves the Court to clarify its Order dated July 23, 2018, as set forth below:
1. Undersigned counsel respectfully advises the Court that she attempted to confer with all
of the other parties to this action via email late yesterday afternoon, in an effort to discuss this
proposed motion. Counsel for Next Chapter Properties, LLC has advised that his client consents
to the proposed relief. As of the filing of this motion, the Plaintiffs have not responded. Due to
the expedited need to have this issue addressed and, in light of the deadlines set by the Court, the
City is proceeding with the filing of this motion.
2. The Court recently entered an Order on Monday, July 23`d, setting forth an expedited
briefing schedule for this action and making certain orders with respect to certification of the
record. Specifically, the Order states: "All parties shall certify and file with the Court and to all
other parties those portions of the record concerning PDP #1700034 that they wish the Court to
review no later than Tuesday, July 31, 2018."
3. Though filed in municipal court, it is agreed that this action is governed by Rule
106(a)(4) of the Colorado Rules of Civil Procedure. That rule sets forth the framework and
procedure by which this Court shall conduct its review of the City Council's decision being
challenged by the Plaintiffs.
4. As expressly stated in Rule 106(a)(4)(I), the reviewing court is strictly limited to
determining whether the governmental agency exceeded its jurisdiction or abused its discretion.
In making this determination, the Court's evaluation of the case is limited to an examination of
the record of the administrative proceedings below. Under this standard of review, the Court is
required to uphold the agency's decision unless there is absolutely no competent evidence to
support it. Abbott v. Board of County Comm'rs of Weld County, Colo., 895 P.2d 1165, 1167
(Colo. App. 1995); Sellon v. City of Manitou Springs, 745 P.2d 229, 235 (Colo. 1987); Bd. of
County Commissioners ofRoutt County v. O'Dell, 920 P.2d 48, 50 (Colo. 1996). Further, the
persons challenging the governmental action carries the burden of proving the governmental
body exceeded its jurisdiction or abused its discretion, and in doing so must overcome a
presumption that the government's action was proper. Kruse v. Town of Castle Rock, 192 P.3d
591, 601 (Colo. App. 2008).
5. Rule 106(a)(4)(III)-(IV) reflects the burden placed on the plaintiffs in the manner by
which it sets forth a specific procedure and timeline for designation and certification of the
record for review. Those provisions of the rule place the obligation with the plaintiffs to first
designate those portions of the record they deem necessary for review, typically done by
including a motion and proposed order for certification of the record when the complaint is filed.
These provisions also place the burden on the plaintiffs to advance the costs for such portions of
the record designated. The Court is to then issue an order for the defendant body to file with the
court those portions of the record designated by the plaintiffs by a date certain, along with a
certificate of authenticity. The defendants are also given 21 days after the court issues an, order
for certification to set forth additional items they deem necessary.
6. The plaintiffs thus far have failed to designate any record for this Court's review for
purposes of carrying their burden of proof on the claims they have made. They do so at their
own peril, and the defendants do not legally have to carry this burden of creating the record or
advancing the costs for the same. By ordering "all parties" to certify and file any portions of the
record with the Court that they deem necessary for the Court's review, the City is concerned that
the Court has inadvertently shifted this burden to the defendants, particularly to the City as the
governmental body charged with certifying portions of the record designated by the plaintiffs.
7. Accordingly, the City would respectfully ask the Court to further clarify in its order that
the plaintiffs have until Tuesday, July 3 1 " in which to designate any portions of the record that
they want the City to certify and file for the Court's review, and to also advance the costs of
same. If the Plaintiffs actually designate a record, then the City would ask the Court to give the
defendants 3 additional days in which to respond to designate any additional items not listed by
the plaintiffs, recognizing that they would ordinarily be entitled to 21 days, but they understand
this matter needs to proceed on an expedited timeframe. Most of the items from the proceedings
below can be produced within a short timeframe, with the exception of a transcript of the City
Council proceedings, which may take some brief additional time to prepare.
8. Of course, the Plaintiffs may elect to proceed without designating a record, which is
contemplated by the provisions of Rule 106(a)(VII). If they choose to proceed in this manner, or
fail to advance the costs for preparation of any portions of the record designated, then the matter
can simply proceed on the briefing schedule outlined by the Court's July 23`d order. The
plaintiffs will then have to make their arguments subject to the applicable legal presumptions that
come into play when no record has been provided for the Court's review.
WHEREFORE, for the reasons set forth above, the City respectfully requests the Court to
clarify its July 23`d order by placing the initial obligation on the plaintiffs, rather than "all
parties," to first designate any portions of the record they deem necessary for the Court's review,
and to advance the costs of the same.
DATED this 25`h day of July, 2018.
Respectfully submitted,
WICK & TrRA�UTWEIN, LLC
By:
Kimberly B. Schutt, # 947
Attorneys for the improperly named
defendants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing CITY
DEFENDANTS' MOTION FOR CLARIFICATON was served this 25T11 day of July, 2018, via
email transmission on the following:
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521
sutherix@vahoo.com
Brian Dwyer
J&M Distributing, dba Fort Collins Muffler and Automotive
2001 S. College Avenue
Fort Collins, CO 80525
Jeffrey Cullers
Herms & Herrera, LLC
3600 S. College Avenue, Ste. 204
Fort Collins, CO 80525
bdwyer]199@jmail.com
ie{@hhlawoffi'ce.com