HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 134 - RESPONSE IN OPPOSITION OF PLAINTIFF'S MOTION TO STAY ENFORCEMENT OF JUDGMENTS PURSUANT TO C.R.C.P. RULE 62DISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
ERIC SUTHERLAND, pro se
v.
Defendants:
THE CITY OF FORT COLLINS, et al.
Counsel for The Timnath Development Authority and
Compass Mortgage Corporation:
Eric R. Burris, admitted pro hac vice
BROWNSTEIN HYATT FARBER SCHRECK, LLP
201 Third Street NW, Suite 1800
Albuquerque, NM 87102
Phone: 505.244.0770
Email: eburris@bhfs.com
Cole J. Woodward, #50199
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
Phone: 303.223.1100
Email: cwoodward@bhfs.com
Co-Counsel for The Timnath Development Authority:
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA & WALDRON
2154 E. Commons Ave., Suite 2000
Centennial, CO 80122
Phone: 303.858.1800
Emails: rrogers@wbapc.com; clekahal@wbapc.com
Case Number: 2018CV149
Division: 3C
RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO STAY
ENFORCEMENT OF JUDGMENTS PURSUANT TO C.R.C.P. RULE 62
Defendants The Timnath Development Authority (“TDA”) and Compass Mortgage
Corporation (“Compass”), by and through their counsel of record, White Bear Ankele Tanaka &
Waldron Attorneys at Law and Brownstein Hyatt Farber Schreck, LLP, hereby submit the
DATE FILED: May 13, 2019 10:58 AM
FILING ID: 64C63C9746FE5
CASE NUMBER: 2018CV149
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following Response in Opposition to Plaintiff’s Motion to Stay Enforcement of Judgments
Pursuant to C.R.C.P. Rule 62 (the “Response”).
INTRODUCTION
In his Motion to Stay Enforcement of Judgments Pursuant to C.R.C.P. Rule 62 (the
“Motion”), Plaintiff requests a stay from enforcement of final judgments issued by this Court in
September of 2018. But Plaintiff cannot state facts that could entitle him to relief under Rule 62
in this case. The fourteen-day automatic stay of execution imposed by Rule 62(a) expired over
six months ago. Plaintiff’s Motion includes no discussion of the standard for a discretionary stay
of enforcement under Rule 62(b), probably because none of the conditions that would allow the
Court to impose such a stay are present in this case. Nor does Plaintiff request approval of a
supersedeas bond, which is the appropriate means of staying enforcement of judgment during the
pendency of an appeal. As a result, the Motion fails to state any legal theory or facts that could
entitle Plaintiff to relief, and is just as frivolous as Plaintiff’s underlying claims in this case.
Rather than applying the appropriate legal standard to the facts material to the Motion,
Plaintiff takes yet another opportunity to heap abuse on the Court and opposing parties. Plaintiff
complains that the Court’s handling of TDA’s counterclaims in this matter has delayed his
appeal. Mot. at 3. That allegation is entirely irrelevant to whether a stay of enforcement is
appropriate here. Plaintiff also states that TDA’s efforts to enforce its final judgment will
irreparably harm Plaintiff, and that a stay of enforcement would not prejudice TDA. These
statements are both misleading and immaterial. Undoubtedly, enforcement of TDA’s judgment
will harm Plaintiff. That harm will only partially offset the damages that Plaintiff has inflicted
on TDA with his frivolous and vexatious litigation. Furthermore, it is likely that TDA would be
prejudiced by any stay in enforcement of its judgement. Plaintiff has already attempted to
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unlawfully frustrate TDA’s efforts to collect sums owed to it pursuant to this Court’s judgement
once. It is probable that Plaintiff would use a stay in enforcement to engage in further subterfuge
to stymie TDA’s collection efforts. In sum, Plaintiff’s Motion is similar to his other requests for
relief in this case in that it is both frivolous, and riddled with falsehoods.
STANDARD OF LAW
Rule 62 stays enforcement of a final judgment under limited, well-defined circumstances.
First, Rule 62(a) imposes fourteen day automatic stay of enforcement on all final judgments.
Colo. R. Civ. P. 62(a).
Second, Rule 62(b) allows the Court, in its discretion, to impose a stay of enforcement:
(1) when a motion for post-trial relief under C.R.C.P. 59 is pending; (2) when a motion for relief
from a judgment or order made pursuant to C.R.C.P. 60 is pending; (3) during the time permitted
for filing a notice of appeal; or (4) during the pendency of a motion for approval of a supersedeas
bond.
Third, the Court may also impose a discretionary stay of enforcement “until the entering
of a subsequent judgment or judgments . . . .” under Rule 62(h). Colo. R. Civ. P. 62(h).
Finally, Rule 62(d) allows a party subject to judgment to obtain a stay of enforcement
from the trial court during the pendency of an appeal. In order to obtain a stay under Rule 62(d),
however, the party must post a supersedeas bond in an amount that Court deems sufficient to
protect the interests of the judgment creditor. Colo. R. Civ. P. 62(d); Colo. Rev. Stat. § 13-16-
125.
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ARGUMENT
A. The Automatic Stay of Enforcement Imposed by Rule 62(a) Has Long Since
Expired.
In this case, the fourteen-day automatic stay of enforcement imposed by Rule 62(a) has
expired. The Court entered judgment in TDA’s favor in this matter on September 10, 2018. The
fourteen-day stay therefore ran on September 24, 2018. Plaintiff is not entitled to relief under
Rule 62(a).
B. None of the Conditions that Could Allow the Court to Impose a Discretionary Stay
of Enforcement under Rule 62(b) are Present in this Case.
There are no motions for post-trial relief currently pending in this matter, so Plaintiff
cannot obtain discretionary relief under either Rule 62(b)(1) or (2). Plaintiff’s time to file a
notice of appeal in this matter lapsed on May 3, 2019. Plaintiff did in fact file an appeal on May
2, 2019. Plaintiff therefore cannot obtain relief under Rule 62(b)(3), which only permits a trial
court to impose a discretionary stay on enforcement “during the time permitted for filing a notice
of appeal.” Colo. R. Civ. P. 62(b)(3). Finally, Plaintiff has not requested the Court’s approval of
a supersedeas bond, so relief under Rule 62(b)(4) is likewise unavailable.
C. There Are No Unresolved Claims in this Case, so a Stay Pending Entry of
Subsequent Judgments under Rule 62(h) is Unavailable.
A trial court may also impose a discretionary stay on enforcement of final judgments
“until the entering of a subsequent judgment or judgments . . . .” under Rule 62(h). Colo. R. Civ.
P. 62(h). Such relief is unavailable in this case, where all claims for damages have been fully
and finally resolved.
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D. Plaintiff Has Not Requested Approval of a Supersedeas Bond under Rule 62(d),
Which is the Appropriate Mechanism for Staying Enforcement of a Judgment
During Pendency of an Appeal.
In his Motion, Plaintiff states that “it is reasonable to presume that a stay of enforcement
for the pendency of the appeal will . . . be available upon posting a supersedeas bond . . . .” Mot.
at 5. In fact, such a presumption is not reasonable in any objective sense. Plaintiff has not
requested the Court’s approval of a supersedeas bond. Nor has Plaintiff furnished any evidence
that he has taken steps to obtain a supersedeas bond. In fact, Plaintiff has made no effort to avail
himself of Rule 62(d), which is the only mechanism by which Plaintiff could obtain a stay of
enforcement at this time. As with his prior filings regarding the judgment at issue, Plaintiff
provides no facts or applicable law that could entitle him to relief of any kind.
CONCLUSION
Based on the foregoing, Defendants Timnath Development Authority and Compass
Mortgage Corporation request that this Court deny Plaintiff’s Motion.
DATED this 13
th
day of May, 2019.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Original signature on file at offices of Brownstein Hyatt Farber Schreck
pursuant to C.R.C.P. 121 § 1-26
By: s/Cole J. Woodward
Eric R. Burris, admitted pro hac vice
Cole J. Woodward, #50199
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA AND WALDRON
Attorneys for The Timnath Development Authority and
Compass Mortgage Corporation
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 13
th
day of May, 2019, a true and correct
copy of the foregoing RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO
STAY ENFORCEMENT OF JUDGMENTS PURSUANT TO C.R.C.P. RULE 62 was filed
with the Court and served via Colorado Courts E-filing System on all counsel of record and pro
se Plaintiff as follows:
By E-Mail and Regular Mail
Eric Sutherland
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Phone: 970.224.4509
Email: sutherix@yahoo.com
s/Penny G. Lalonde
Penny G. Lalonde, Paralegal
19203967