HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 118 - ORDER DENYING MOTION TO VACATE ORDER GRANTING MOTION TO DISMISSDistrict Court, Larimer County, State of Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 494-3500
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Plaintiff:
Eric Sutherland
v.
Defendants:
The City of Fort Collins, et. al.
Case Number: 2018CV149
Courtroom: 5B
ORDER DENYING MOTION TO VACATE ORDER GRANTING MOTION TO
DISMISS
Plaintiff filed a Motion to Vacate Order Granting Motions to Dismiss on March 6,
2019. Having considered the motion, responses, reply, exhibits, and applicable law, the
Court finds and orders as follows.
I. Legal Standards
A Court may relieve a party from an order for “(1) [m]istake, inadvertence,
surprise or excusable neglect; … or (5) any other reason justifying relief from the
operation of judgment”. C.R.C.P. 60(b).
The party bringing the Rule 60(b) motion “bears the burden of establishing by
clear and convincing evidence that the motion should be granted.” Sebastian v. Douglas
Cty., Colorado, 370 P.3d 175, 177–78 (Colo. App. 2013), aff'd sub nom. Sebastian v. Douglas
Cty., 366 P.3d 601 (Colo. 2016).
When considering a Rule 60(b) motion asserting mistake, inadvertence, surprise,
or excusable neglect,
the district court must consider (1) whether the neglect that resulted in entry of
judgment was excusable; (2) whether the moving party has alleged a meritorious
claim (or defense); and (3) whether relief from the challenged order would be
consistent with equitable considerations such as protection of action taken in
DATE FILED: April 19, 2019
CASE NUMBER: 2018CV149
2
reliance on the order and prevention of prejudice by reason of evidence lost or
impaired by the passage of time.
Taylor v. HCA-HealthONE LLC, 417 P.3d 943, 949 (Colo. App. 2018) (citing Craig v. Rider,
651 P.2d 397, 402 (Colo. 1982)). These three factors constitute a balancing test for a court
to consider in ruling on a Rule 60(b) motion. Id.
“A party’s conduct constitutes excusable neglect when the ‘surrounding
circumstances would cause a reasonably careful person similarly to neglect a duty,’ or,
put another way, when ‘unforeseen circumstances’ would cause a ‘reasonably prudent
person to overlook a required act in the performance of some responsibility’”. Id. at 952
(citations omitted).
“A movant must support an assertion of a meritorious claim by averments of
fact, not simply legal conclusions.” Id. at 953 (citation omitted).
In determining whether Rule 60(b) relief would be consistent with equitable
considerations, a district court should take into account the promptness of the
moving party in filing the Rule 60(b) motion; the fact of any detrimental reliance
by the opposing party on the order or judgment of dismissal; and any prejudice
to the opposing party if the motion were to be granted, including any
impairment of that party’s ability to adduce proof at trial in defense of the claim.
Id. (citations omitted).
II. Application of Law
Plaintiff asks the Court to grant him relief from the Court’s order dismissing
Plaintiff’s claims against the City of Fort Collins, Steve Miller,1
and Irene Josey. Plaintiff
argues for relief under the theory of “mistake, inadvertence, surprise, or excusable
neglect”. Mot. at 3–4. Plaintiff describes his “mistake, inadvertence, surprise, or
excusable neglect” by stating that “I first became aware of the broad grant of standing
of C.R.S. §24-6-402(9) at some shortly [sic] after filing the Notice of Appeal in this case on
October 22, 2018”. Id. at 4. Plaintiff goes on to state: “After researching the law, it
became apparent that the grant of standing of the OML was applicable to this case and
should operate to guaranty standing. That conclusion was reached sometime in mid
November”. Id.
1 Plaintiff sued Steve Miller in his capacity as Larimer County Assessor. As of January 8, 2019, Bob
Overbeck replaced Steve Miller as the Larimer County Assessor.
3
Plaintiff then argues that, under C.R.S. § 24-6-402(9) he has standing to pursue
his claims against the City of Fort Collins, the Larimer County Assessor, and the
Larimer County Treasurer.
The City of Fort Collins argues that Plaintiff has failed to make a sufficient
showing under Rule 60(b). The City argues that Plaintiff has not shown that his neglect
was excusable, Plaintiff does not have a meritorious claim, and that equity favors
denying Plaintiff’s motion. The County defendants make similar arguments in their
response.
The Court finds that Plaintiff has not made the requisite showing under Rule
60(b). Plaintiff has not demonstrated by clear and convincing evidence that his neglect
was excusable, he has a meritorious claim, or that the equities weigh in his favor.
A. Excusable Neglect
Plaintiff has not articulated any way in which his neglect in this case was
excusable. In his motion, Plaintiff states that he first became aware of his new theory of
standing after his claims had been dismissed and after filed his appeal of this dismissal.
Plaintiff has not explained why this neglect is excusable.
To be excusable, Plaintiff would have to show that “the ‘surrounding
circumstances would cause a reasonably careful person similarly to neglect a duty,’ or,
put another way, when ‘unforeseen circumstances’ would cause a ‘reasonably prudent
person to overlook a required act in the performance of some responsibility’”. Taylor,
417 P.3d at 952. Plaintiff has not described any “unforeseen circumstances” that
delayed his discovery of C.R.S. § 24-6-402. Similarly, Plaintiff has not made any
argument that the surrounding circumstances “surrounding circumstances would cause
a reasonably careful person similarly to neglect a duty”.
In the absence of any explanation of unforeseen or surrounding circumstances,
the Court finds that Plaintiff has not shown by clear and convincing evidence that his
neglect was excusable. Therefore, the Court finds that this factor weighs against
granting Plaintiff’s motion.
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B. Meritorious Claim
Plaintiff similarly has not demonstrated by clear and convincing evidence that
his underlying claim is meritorious.
1. Claim against TDA, Compass, and the County Defendants
Plaintiff argues that C.R.S. § 24-6-402(9) gives him standing to bring the claims
originally brought against the Defendants. Plaintiff’s original claim against Timnath
Development Authority (TDA), Compass Mortgage Corporation, and the County
Defendants alleged that the TDA is not a properly constituted Urban Renewal
Authority, and, therefore, could not lawfully create debt. See Compl. at ¶¶11–20.
Plaintiff now argues in his current motion that, “no requirement of [the open meeting
law] could have been met” because TDA “did not act as a formally constituted body of
a political sub-division”. Mot. at 5–6.
First, the Court finds that it appears that Plaintiff is attempting to assert a new
claim for relief against the County Defendants, rather than assert a newfound legal
theory that would support his claim to standing on his initial claim for relief. Plaintiff’s
original complaint does not allege that TDA violated any provision of the open meeting
law. Plaintiff’s claim in his current motion that the TDA violated the law is a new claim
for relief that wasn’t previously presented to this court. Rule 60(b) does not afford
parties an opportunity to raise entirely new claims for relief after their original claims
have been dismissed.
Second, even if the Court considers Plaintiff’s new theory of standing to be an
appropriate attempt to show that he had legal standing to bring his initial claims for
relief, Plaintiff still hasn’t shown by clear and convincing evidence that his claim is
meritorious. Plaintiff argues that TDA didn’t comply with the open meeting laws
because it “did not act as a formally constituted body of a political sub-division when
purporting to authorize a loan of $20 million”, and therefore, could not have met the
requirements of the open meeting law. Mot. at 5–6 (footnote omitted).
First, the Court notes that the open meeting law applies more broadly than
simply to “formally constituted bod[ies]”. The open meeting law defines a “[l]ocal
public body” as “any board, commission, authority, or other advisory, policy-making,
rule-making, or formally constituted body of any political subdivision…”. C.R.S. § 24-6-
402(1)(a)(I) (emphasis added).
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Second, Plaintiff has not articulated any way in which TDA violated the open
meeting law. Plaintiff has not alleged that the meeting was not properly noticed, that
the meeting was closed to the public, that minutes were not taken, or that any other
provision of C.R.S. § 24-6-402 was violated. Thus, Plaintiff has failed to articulate any
way in which he was “denied or threatened with denial” of any of his rights under the
open meeting law.
Therefore, the Court finds that Plaintiff has not shown by clear and convincing
evidence that his claim against TDA, Compass Mortgage Corporation, and the County
Defendants is meritorious. The Court finds that this factor weighs against granting
Plaintiff’s motion.
2. Claim against the City of Fort Collins
Similarly, Plaintiff’s motion appears to be articulating a new claim for relief
against the City of Fort Collins, rather than presenting a novel theory of standing to
support Plaintiff’s original claims for relief. Plaintiff’s original claim for relief against
Fort Collins alleged that the Fort Collins Electric Utility Enterprise Board (EUEB)
authorized the sale of revenue bonds when the EUEB had no authority to do so and
such authorization violated the Fort Collins City Charter. Compl. ¶¶35–39.
From the beginning, Plaintiff has argued that the Fort Collins Electric Utility
Enterprise Board (EUEB) improperly authorized the issuance and sale of revenue bonds
See Compl. ¶¶35–39. Plaintiff has asserted this argument primarily on the basis that
Fort Collins’s City Charter and City Code require revenue bonds to be issued by the
City Council. Id. Plaintiff has then argued that the bonds in question were issued by
the EUEB acting alone and not by the City Council. See Id. Plaintiff argues that the
bonds were issued without authority and should not be given any legal effect.
The Court has previously found that Plaintiff does not have standing to bring his
claim that the EUEB’s issuance of the revenue bonds violated the Fort Collins City
Charter and/or City Code. See Order Granting Defendants’ Motions to Dismiss as to
Defendants City of Fort Collins, Steve Miller and Irene Josey.
Now, Plaintiff asserts that his rights under the open meeting law were denied
and he has standing to ask the Court to declare the results of the meeting null and void.
Plaintiff now appears to argue that, by definition, the EUEB “is only formally
constituted when it acts ‘by and through’ the City Council”. Mot. at 8. Plaintiff argues
that the EUEB meeting in question was not a properly noticed meeting of the City
Council, and, therefore, violated the requirements of the open meeting law. Id. at 7–8.
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This argument is a new legal argument that was not presented in Plaintiff’s complaint.
Plaintiff cannot add this new claim for relief through the Rule 60(b) process.
Additionally, Plaintiff has not shown by clear and convincing evidence that he
has standing to pursue this claim. Plaintiff asserts his new claim for relief under C.R.S.
§ 24-6-402. To have standing under that statute, Plaintiff would have to show that he
was “denied or threatened with denial of any of the rights that are conferred on the
public by this part 4”. C.R.S. § 24-6-402(9)(a). It is undisputed that Plaintiff attended
the EUEB meeting in question and was permitted to speak at the meeting. Therefore,
Plaintiff clearly had notice that the meeting was taking place and the meeting was
clearly open to the public. Plaintiff has not shown by clear and convincing evidence
that his rights under C.R.S. § 24-6-402 were denied or threatened with denial in a
manner that would grant Plaintiff standing. Plaintiff’s claim is not meritorious when he
does not have standing to pursue his claim.
Therefore, the Court finds that this factor weighs against granting Plaintiff’s
motion.
C. Equities
Finally, Plaintiff has not demonstrated by clear and convincing evidence that the
equities weigh in his favor.
In determining whether Rule 60(b) relief would be consistent with equitable
considerations, a district court should take into account the promptness of the
moving party in filing the Rule 60(b) motion; the fact of any detrimental reliance
by the opposing party on the order or judgment of dismissal; and any prejudice
to the opposing party if the motion were to be granted, including any
impairment of that party’s ability to adduce proof at trial in defense of the claim.
Taylor, 417 P.3d at 953 (citations omitted).
1. Promptness of Filing the Motion
The Court issued its Order dismissing the City of Fort Collins and the County
Defendants on September 5, 2018. Plaintiff filed a Notice of Appeal with the Court on
October 23, 2018. On October 29, 2018, the Court issued a Status Order informing the
Parties that the Court did not have jurisdiction while the case was being appealed. On
March 6, 2019, Plaintiff filed the present motion and informed the Court that the appeal
was being dismissed without prejudice.
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The Court finds that, given the circumstances of this case, Plaintiff’s Rule 60(b)
motion was promptly filed.
2. Detrimental Reliance
The relationship of the County Defendants to this case has always been tenuous.
In his Complaint, Plaintiff argued that the Court should enjoin the County Defendants
from collecting money pursuant to the debt authorized by TDA. Plaintiff has not
alleged that any action of the County Defendants was illegal. Given the tenuous
connection, it is unclear whether the County Defendants have detrimentally relied on
the Court’s order granting dismissal.
The City of Fort Collins has detrimentally relied on the Court’s order of
dismissal. The City has moved forward with the issuance of its revenue bonds and the
construction of a city-owned broadband network. If the Court grants Plaintiff’s Rule
60(b) motion, it could conceivably place the validity of the bonds at issue. This could
result in delays and problems for the City in its continued construction efforts. This
could additionally place the City in legal jeopardy with regard to the contracts it has
entered into to construct the broadband network. The Court finds that the city of Fort
Collins has detrimentally relied on the Court’s order dismissing Plaintiff’s claims
against the City.
3. Prejudice
The Court finds that the City and the County Defendants would be prejudiced if
the Court granted Plaintiff’s motion. This is particularly true given the Court’s
conclusion that Plaintiff has failed to demonstrate that his underlying claims are
meritorious. The Court finds it likely that, if Plaintiff’s motion is granted, the City and
the County Defendants will be forced to again defend against Plaintiff’s tenuous claims
that there was impropriety in the creation of debt by TDA and the issuance of bonds by
the EUEB. Incurring the cost and time associated defending against these claims, which
in all likelihood would fail on the merits, would be prejudicial towards Defendants.
Therefore, the Court finds that this factor weighs against granting Plaintiff’s
motion.
The Court finds that all relevant factors under Rule 60(b) weigh against granting
Plaintiff’s motion. Therefore, the Court denies Plaintiff’s motion to vacate the order
granting the motions to dismiss of the City of Fort Collins and the County Defendants.
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Order
Plaintiff’s motion is denied.
Dated: April 19, 2019.
BY THE COURT:
__________________________
Gregory M. Lammons
District Court Judge