HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 079 - ORDER GRANTING MOTION FOR RECONSIDERATION1
District Court, Larimer County, State of Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 494-3500
▲ COURT USE ONLY ▲
Plaintiff:
Eric Sutherland
v.
Defendants:
The City of Fort Collins, et al.
Case Number: 2018CV149
Courtroom: 5B
ORDER GRANTING MOTION FOR RECONSIDERATION
Plaintiff filed a Notice of Appeal on October 23, 2018. Among other things,
Plaintiff appeals this Court’s: Order Granting Defendants’ Motions to Dismiss as to
Defendants City of Fort Collins, Steve Miller, and Irene Josey; Order Granting
Defendants’ Timnath Development Authority and Compass Mortgage Corporation’s
Joint Motion to Dismiss, and the related Order Denying Reconsideration; and Order
Granting Timnath Development Authority’s and Compass Mortgage Corporations’
Motion for Attorneys’ Fees and Bill of Costs. Notice of Appeal at 3.
On October 29, 2018, this Court issued a Status Order Regarding Notice of
Appeal. In that Order, the Court stated that it “does not have jurisdiction to consider
any of the motions pending before it” and that “the Court will not consider any of the[]
pending motions further until the Court reacquires jurisdiction.” Order at 2. Two of
the motions the Court declined to consider further were motions for attorney fees filed
by the City of Fort Collins and by Steve Miller and Irene Josey. Id.
The City of Fort Collins filed a motion to reconsider on November 14, 2018.
Plaintiff did not file a response. After reviewing the motion and applicable law, the
Court finds and orders as follows.
DATE FILED: December 6, 2018
CASE NUMBER: 2018CV149
2
I. Legal Standards
“Upon the filing of the notice of appeal, the appellate court shall have exclusive
jurisdiction over the appeal…”. C.A.R. 3(a). This provision “must be read as requiring
transfer of jurisdiction to the court of appeals ‘[u]pon the filing of the notice of appeal’ of
a final judgment.” Musick v. Woznicki, 136 P.3d 244, 249 (Colo. 2006) (quoting C.A.R. 3(a))
(alteration and emphasis in original).
“Generally, the filing of a notice of appeal shifts jurisdiction to the appellate
court, thus divesting the trial court of jurisdiction to conduct further substantive action
related to the judgment on appeal.” Id. at 246. “[A] trial court retains jurisdiction to act
on matters that are not relative to and do not affect the judgment on appeal.” Id. at 248
(quoting People v. Stewart, 55 P.3d 107, 126 (Colo.2002)). “[A] trial court loses
jurisdiction to determine substantive matters related to the judgment on appeal once the
appeal is filed only if the appeal is of a final judgment.” Id. at 250.
“A trial court has continuing jurisdiction to determine attorney fee issues after a
notice of appeal is filed to review the merits judgment.” A. Tenenbaum & Co. v.
Colantuno, 3 P.3d 456, 458 (Colo. App. 1999), as modified on denial of reh'g (Dec. 23,
1999), aff'd, 23 P.3d 708 (Colo. 2001).
II. Application of Law
The Court retains jurisdiction to consider the motions for attorney fees filed by
the City of Fort Collins and by Steve Miller and Irene Josey. As the Motion filed by the
City of Fort Collins for fees and costs is ripe, the Court issues its Order.
Any response to Miller and Josey’s motion for fees and costs is due no later than
December 20, 2018.
Dated: December 6, 2018.
BY THE COURT:
__________________________
Gregory M. Lammons
District Court Judge