HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 098 - ORDER GRANTING MOTION TO STRIKE1
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 TO STRIKE
Plaintiff filed a Motion for Determination of Questions of Law on October 3,
2018. The City of Fort Collins filed a motion to strike Plaintiff’s motion on October 24,
2018. Having reviewed the motions, responses, and applicable law, the Court finds and
orders as follows.
I. Background
On April 26, 2018, Eric Sutherland filed a Complaint for Declaratory Judgment
and Equitable Relief. Plaintiff sought a declaratory judgment from the Court finding
that any repayment of debt would be an unlawful violation of the Urban Renewal
Authority Act. C.R.S. § 13-25-101, et seq.
On July 11, 2018, the Court dismissed all of Plaintiff’s claims against Timnath
Development Authority and Compass Mortgage Corporation. On September 5, 2018,
the Court dismissed all of Plaintiff’s claims against the City of Fort Collins and the other
remaining defendants, Steve Miller, and Irene Josey.
Plaintiff filed a notice of appeal on October 23, 2018. Plaintiff stated that he was
appealing the Court’s orders dismissing all of Plaintiff’s claims against all of the
Defendants. The appeal divested the Court of jurisdiction to hear the present motions.
See Status Order Regarding Notice of Appeal. This appeal was dismissed without
prejudice on March 12, 2019.
DATE FILED: March 14, 2019
CASE NUMBER: 2018CV149
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II. Analysis
Plaintiff asks the Court to resolve three questions of law: (1) is the EUEB an
“issuing authority” under part 2 of Article 57 of Title 11; (2) is any part of the SPSA
applicable to the issuance of debt by Fort Collins; (3) should the EUEB have known that
it was not an “issuing authority”. Pl.’s mot. at 2.
Fort Collins asks the Court to strike the motion because (1) the Court does not
have jurisdiction because of the appeal; (2) the motion is procedurally improper; and (3)
Plaintiff could have raised these issues before his claims were dismissed, but he failed
to do so.
Plaintiff argues that his motion is procedurally proper because it is relevant to
the Court’s resolution of Fort Collins’s motion for attorney fees.
A. Plaintiff’s Motion is Procedurally Improper
The Court grants Fort Collins’s motion to strike because Plaintiff’s motion is
procedurally improper.
Plaintiff named five parties as defendants and “indispensable parties” in his
Complaint. The Court dismissed all of Plaintiff’s claims against Timnath Development
Authority and Compass Mortgage Corporation on July 11, 2018. On September 5, 2018,
the Court dismissed all of Plaintiff’s claims against the remaining defendants, including
the City of Fort Collins. Therefore, as of September 5, 2018, all issues as to the merits of
Plaintiff’s complaint had been resolved by a final order of the Court.
If Plaintiff disagreed with the Court’s conclusions, Plaintiff could have filed a
motion for post-trial relief, a motion for relief from judgment, or Plaintiff could have
appealed the Court’s decisions. In the course of this proceeding, Plaintiff has pursued
an appeal and is currently seeking relief under Rule 60(b). These motions and Plaintiff’s
appeal are the proper way to seek review of the Court’s orders of dismissal.
The questions Plaintiff asks the Court to resolve in his present motion go directly
to the merits of his claims for relief. Part of Plaintiff’s complaint alleged that Fort
Collins improperly authorized the creation of debt through the EUEB. Compl. at 2–3.
Plaintiff’s current motion asks the Court to determine that the actions of the EUEB were
unlawful, though Plaintiff justifies his position with new legal theories that have not
previously been presented to the Court. As noted above, at the time Plaintiff asked the
Court to resolve these questions, the Court had already made final judgments
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dismissing all of Plaintiff’s claims for relief. Thus, the proper avenue for Plaintiff to
seek to have these questions resolved is through Rule 59 or 60 motions or by filing an
appeal, not through a Rule 56(h) motion.
Additionally, even if the Court considered Plaintiff’s motion to be a motion for
post-trial relief pursuant to C.R.C.P. 59, Plaintiff’s motion was filed outside the
allowable time and is therefore improper. Plaintiff’s motion could be construed as a
motion for the Court to amend its judgment due to an error of law. See C.R.C.P.
59(d)(6). This type of motion must be brought within 14 days of the entry of judgment.
C.R.C.P. 59(a). Plaintiff’s motion was filed more than 14 days after all of his claims were
dismissed by the Court. Therefore, even if the Court considered the motion to be a
motion for post-trial relief, it was filed outside the time allowable for such a motion and
the motion would be improper.
B. Plaintiff’s Motion is not Relevant to Attorney Fees
Plaintiff argues that the questions in his motion are relevant to the Court’s ruling
on Fort Collins’s motion for attorney fees. Specifically, Plaintiff argues that if the Court
agreed with Plaintiff’s position in his motion, it would affect the Court’s finding that
Plaintiff’s action was frivolous. The Court does not agree with Plaintiff’s position.
As noted above, Plaintiff’s motion is procedurally improper. Plaintiff’s avenues
for relief are appeal and relief pursuant to Rules 59 and 60. The Court will not resolve
the questions of law that Plaintiff proposes outside of the proper avenues to seek relief.
Further, even if the Court agreed with Plaintiff’s positions in his motion, the
Court would find the entire case to be moot. Pl.’s Mot. at ¶12. Plaintiff did not raise
these issues until nearly six months after he brought this action and after all of his
claims had been dismissed with prejudice. It is frivolous for a plaintiff to file an action,
cause defendants to incur attorney fees, and move for the Court to declare the entire
action to be moot after all of the plaintiff’s claims are dismissed. Thus, even if the Court
agreed with Plaintiff’s position on the relevant laws, it would not affect the frivolous
nature with which Plaintiff originally filed his Complaint.
Fort Collins seeks attorney fees because, it alleges, Plaintiff reasonably should
have known that this action was substantially frivolous. The Court’s resolution of Fort
Collins’s motion will hinge on the pleadings and filings presented to the Court before
Fort Collins’s motion for attorney fees was filed, not on newly discovered theories of
law presented to the Court after the attorney fee request. Therefore, Plaintiff’s motion
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will not have any bearing on the Court’s resolution of Fort Collins’s motion for attorney
fees.
Order
The Court grants the City of Fort Collins’s motion. Plaintiff’s Motion for
Determination of Questions of Law is stricken.
Dated: March 14, 2019.
BY THE COURT:
__________________________
Gregory M. Lammons
District Court Judge