HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 077 - PLAINTIFF'S RESPONSE TO CITY OF FORT COLLINS' MOTION FOR RECONSIDERATION OF THE COURT'S STATUS ORDER8
th
DISTRICT COURT
LARIMER COUNTY JUSTICE CENTER
Court Address: 201 Laporte Avenue
Fort Collins, CO 80521
Phone (970) 494-3500
Plaintiff: Eric Sutherland, pro se
v.
Defendants : THE CITY OF FORT COLLINS, a home rule
municipality in the state of Colorado; STEVE MILLER, in his
capacity as the Larimer County Assessor and all successors to
this office; IRENE JOSEY, in her capacity as the Larimer
County Treasurer and all successors to this office;
And
Indispensable Parties: THE TIMNATH DEVELOPMENT
AUTHORITY, an Urban Renewal Authority; and COMPASS
MORTGAGE CORPORATION, an Alabama company doing
business in Colorado.
▲ COURT USE ONLY ▲
Party without attorney:
Eric Sutherland, pro se
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Phone Number: (970) 224 4509
E-mail: sutherix@yahoo.com
Case #: 2018CV149
Division: 3C
PLAINTIFF’S RESPONSE TO CITY OF FORT COLLINS’ MOTION FOR RECONSIDERATION OF
THE COURT’S STATUS ORDER
Plaintiff, Eric Sutherland (also referred to hear with 1st person pronouns) files
this Response to the City of Fort Collins’ Motion for Reconsideration of the
Court’s Status Order which was filed with this Court on November 14th, 2018.
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I. BACKGROUND
The City of Fort Collins has now filed with this Court a request for the
Reconsideration of this Court’s October 29th, 2018 Status Order. The City has
cited various authority in support of its argument that this Court should vacate or
amend its Oct. 29th Status Order and move forward with determination of Motions
for costs and fees.
The City’s description of the procedural history of the case is substantially
correct except for two omissions of importance. First, the City’s enumeration of
outstanding matters that are still unresolved in this matter did not include three
motions that have not been decided. Those motions are, in chronological order of
filing with the court, 1) Timnath Development Authority and Compass Banks
Motion to Dismiss Counterclaims and Withdraw Motion for Injunctive Relief
Pursuant to C.R.C.P. 65(g), filed with the court on July 24, 2018; 2) Eric
Sutherland’s Motion for Determination of Questions of Law Under Rule 56(h),
filed with the court on October 3, 2018; and 3) Eric Sutherland’s Motion for
Correction of the Record in Advance of Appeal, filed with the court on October 5,
2018. Secondly, the City makes no mention of the significant discovery of the fact
that Judge Gregory Lammons had been disqualified from this case and a judicial
official, Judge Robert Lowenbach had been assigned to this case by superior
authority of the Chief Justice of the Supreme Court acting through his designated
representative in the State Court Administration Office.
II. ARGUMENT IN OPPOSITION TO MOTION TO RECONSIDER
The City’s argument in support of its Motion to Reconsider is well made
with the exception of the absence of any consideration of the back-and-forth effect
of the impact of decisions on issues that are currently on appeal/expected to soon
be on appeal with decisions that are to be made by the trial court. Because the
effect of decisions made in either court are substantive in nature, the City’s motion
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must be denied in accordance with the authority and reasoning that it has, itself,
cited.
In regard to the City’s desire to see its Combined Motion for Attorneys’ Fees
and Bill of Costs decided by the trial court, several issues must be considered.
First, the City’s Combined Motion for Attorneys’ Fees and Bill of Costs
may not be decided in the absence of some sort of determination as to whether or
not the City had duly applied any part of the Supplemental Public Security Act,
C.R.S. §11-57-201 et seq., the “SPSA”, to the issuance of debt purported to have
been authorized on April 3, 2018. Whether or not this question is approached by
determining my Motion for Determination of Question of Law Under Rule 56(h) or
by other argument at hearing, this question must be answered in order to properly
decide the issue of attorneys’ fees and costs. This is because the basic question
posed would undercut the position of both the defendant and the plaintiff. Both
relied upon the presumption that the SPSA had been properly applied when stating
their case, but both would be wrong if, as the facts suggest, the City of Fort Collins
never duly applied the SPSA because it failed to follow the requirements of its own
City Charter when purporting to issue over $146 million in debt.1 The problem
that the City encounters when facing this reality is that the question of whether or
not the SPSA was duly applied is of great importance not only to the issue of
attorneys fees and costs, but also to issues under appeal … such as whether or not I
should have been granted standing by this court to have the merits of my request
for declaratory judgment heard and ruled upon by this court.2 The unquestionable
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No amount of incredulity is misplaced here. Rather than simply following the plain and simple
language of the City Charter, which clearly requires the passage of all ordinances at a regular
city council meeting, the City of Fort Collins ignored my protests and cautions and acted in a
manner that violates the City Charter.
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The issues common to both the decision on attorneys fees and this court’s decision to decline to
hear the case on its merits are 1) whether or not the recital styled in the manner of C.R.S. §11-
57-210 that is found in the City’s bonds has any weight whatsoever considering the City’s failure
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presence of back-and-forth effect between matters in the trial court and the appeals
court requires this court to continue with its Status Order as issued in order to
avoid the determination of matters substantive to those on appeal.
Second, there is good cause to question whether or not the majority of this
court’s past finding and any of its future findings are of effect … even under the de
facto judge doctrine. The de facto judge doctrine does not apply to any situation
where, as here, factors of constitutional dimension were at work to deprive a
judicial official of authority. People v. Torkelson, 22 P.3d 560, Colo. App. 2000.
In this case, the assignment of Judge Robert Lowenbach to hear this case made by
an official of the Office of the State Court Administration on June 23, 2018
pursuant to constitutional authority suffices constitutional protection. The
retroactive recission of assignment later made is of no consequence except for
reinforcing the fact that from the time of assignment onward, Judge Gregory
Lammons wielded no authority in this case. See Notice of Request to Vacate
Assignment of Judge Robery Lowenbach and Intent to Amend Notice of Appeal and
supporting exhibits, filed with this court on November 16, 2018.
III. CONCLUSION
There can be no question that the current situation can be seen to be
regrettable in many ways. For example, I had hoped to obtain a decision from the
Court of Appeals that a person such as myself does have standing to challenge
abuses of the URA law on the basis of the elevated tax rates that are levied as a
direct result of such abuses. It now appears that hopes for published precedent are
misplaced as the case is most likely to be determined on the basis of the failure of
the authority of the Chief Justice of the Supreme Court to be respected.
(cont’d.)..
to duly apply any part of the SPSA as a result of its improper adoption of an ordinance and 2)
whether or not the non-claim statue of C.R.S. § 11-57-210 is applicable because of the same
failure as in 1).
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As to the City’s desires to move forward with its Combined Motion for
Attorneys’ Fees and Bill of Costs, comments made in the opening of my Response
thereto could not be truer. The City’s Motion for Fees has opened the proverbial
can of worms.
Although the City of Fort Collins’ points as to the typical and acceptable
practice of a trial court continuing to address open issues such as attorneys’ fees
after a case has gone to appeal are well made and well taken, the reality of this
situation is that the interplay on substantive issues is to great in the present instance
for this court to reconsider its Status Order and decide the City’s request for
attorneys fees. See Plaintiff’s Response to City’s Combined Motion for Attorneys’
Feed and Bill of Costs at p. 3 (The effect of a determination on these questions of
law consistent with the argument that I have presented would be extremely
impactful on this proceeding (meaning determination of fees) and also on matters
extrinsic to this proceeding.) All citations of authority provided by the City
recognize that trial courts are deprived of jurisdiction over matters substantive to
issues on appeal and there are to many such substantive issues common to appeal
and motion for fees in this case.
To the extent that the City’s Combined Motion for Attorneys’ Fees and Bill
of Costs does not address the possibility that any other undecided motions
enumerated by the City or in this Response may be decided, I offer no position on
those subjects.
WHEREFORE, Plaintiff requests that that this Court deny the City of Fort Collins’
Motion for Reconsideration of the Court’s Status Order in this matter.
___________________ Dated December 5, 2018
Eric Sutherland
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I hereby certify that on this 5th Day of December, 2018, a true and correct copy of
the foregoing Plaintiff’s Response to City of Fort Collins’ Motion for
Reconsideration of the Court’s Status Order was filed with the Court. Also, a true
and correct copy of the foregoing will be served via email to the following no later
than December 5th, 2018.
Eric R. Burris eburris @ bhfs.com
Cole J. Woodward cwoodward @ bhfs.com
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Robert Rogers rrogers @ wbapc.com
Casey K. Lekahal clekahal @wbapc.com
WHITE BEAR ANKELE TANAKA & WALDRON
John Mill jmill @ shermanhoward.com
Amanda Milgrom amilgrom @ Shermanhoward.com
Attorneys for City of Fort Collins
John Duval jduval @ fcgov.com
Carrie Daggett cdaggett @ fcgov.com
George Hass ghass@ larimer.org
Jeanine Haag jhaag @ larimer.org
David Ayraud dayraud @ larimer.org
William Ressue wressue @ larimer.org
Attorneys for County Treasurer and Assessor
By________________________________________________________________
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