HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 135 - CITY'S RESPONSE TO PLAINTIFF'S MOTION TO STAY THE EXECUTION OF THE JUDGMENTActive/50051202.2
DISTRICT COURT, LARIMER COUNTY,
COLORADO
Court Address: 201 La Porte Avenue
Fort Collins, CO 80521
Phone Number: (970) 494-3500
▲COURT USE ONLY▲
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 in 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.
Attorneys for Defendant City of Fort Collins:
John W. Mill (#22348)
Rosemary A. Loehr (#52559)
Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
Phone Number: (303) 297-2900
Email: jmill@shermanhoward.com
rloehr@shermanhoward.com
Carrie M. Daggett, #23316
John R. Duval, #10185
Fort Collins City Attorney’s Office
300 LaPorte Avenue
Fort Collins, CO 80522-0580
970-221-6520
cddaggett@fcgov.com, jduval@fcgov.com
Case No.: 2018CV149
Courtroom/Division: 5B
CITY OF FORT COLLINS’S RESPONSE TO PLAINTIFF’S MOTION TO STAY
THE EXECUTION OF THE JUDGMENT
DATE FILED: May 13, 2019 5:25 PM
FILING ID: BCAA6A3352C21
CASE NUMBER: 2018CV149
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The Defendant City of Fort Collins (the “City”), by and through its counsel, respectfully
submits the following Response to Plaintiff’s Motion to Stay the Execution of the Judgment.
ARGUMENT
This Court awarded the City $40,243.27 for attorneys’ fees and costs to compensate the
City for Mr. Sutherland’s frivolous complaint. See 04/02/19 Order Granting Fort Collins’s
Motion for Attorneys’ Fees and Bill of Costs. Mr. Sutherland now requests this Court to stay the
execution of that judgment pending appeal. However, Mr. Sutherland has not met the
requirements for a stay of the City’s judgment for two reasons.
1. No basis for a discretionary stay. First, Mr. Sutherland is not entitled to a
discretionary stay of enforcement of the judgment under C.R.C.P. 62(b) nor has he made any
showing that a discretionary stay is appropriate. See C.R.C.P. 62(b) (outlining the requirements
for a discretionary stay).
2. No supersedeas bond has been posted or approved. Second, Mr. Sutherland
has not obtained or submitted to the Court for approval a supersedeas bond as required under
C.R.C.P. 62(d). To obtain a stay of execution of the City’s judgment, the rules are clear that Mr.
Sutherland must post a supersedeas bond. See C.R.C.P. 62(d); Colo. Korean Ass'n v. Korean
Senior Ass'n, 151 P.3d 626, 628 (Colo. App. 2006) (“The posting of a supersedeas bond is
required to stay the execution of a trial court's judgment.”). Instead of posting the required bond,
Mr. Sutherland asks the Court to “presume” that he will post a supersedeas bond (or presume the
Colorado Supreme Court will take up his case in an original proceeding). The Court should not
presume either will happen. Unless and until Mr. Sutherland actually obtains a supersedeas bond
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complying with all requirements and files a motion asking the Court to approve it, there is no
basis to stay enforcement of the judgment for the City based on speculation or presumption.
3. Any supersedeas bond must be for 125% of the judgment. The presumptive
amount of the bond is 125% of the total amount of the judgment, including costs, attorneys’ fees,
and prejudgment interest. See C.R.C.P. 121 § 1-23(3)(a). Here, a supersedeas bond for 125% of
the total judgment is necessary to protect the City’s interests in its judgment against Mr.
Sutherland. See Muck v. Arapahoe Cnty. Dist. Court, 814 P.2d 869, 872 (Colo. 1991) (“The
requirement of a supersedeas bond serves an important role in protecting the appellee's interests
in the judgment.”); see also Hart v. Schwab, 990 P.2d 1131, 1133 (Colo. App. 1999) (“a full
supersedeas bond should be the requirement in normal circumstances”).
A supersedeas bond for 125% of the judgment is particularly necessary given Mr.
Sutherland’s post-judgment litigation conduct. Since this Court’s order granting the City its
attorneys’ fees and costs, Mr. Sutherland has filed three motions in an attempt to avoid the
judgment against him and revive his frivolous complaint. First, Mr. Sutherland filed a Rule
60(b) motion to vacate the Court’s Order granting the award of attorneys’ fees and costs. See
03/06/19 Motion to Vacate Order Granting Defendant's Motions to Dismiss as to City of Fort
Collins, Steve Miller and Irene Josey Pursuant to Rule 60(b). Before the Court denied Mr.
Sutherland’s first Rule 60 motion, he filed a second motion seeking to amend the judgment
against him under Rule 59. See 04/16/19 Motion for Amendment of Judgment Granting City of
Fort Collins' Motion for Attorneys' Fees and Bill of Costs Pursuant to C.R.C.P. 59. After the
Court denied Mr. Sutherland’s first Rule 60 motion (See 04/16/19 Order Denying Motion to
Vacate Order Granting Attorney Fees) Mr. Sutherland withdrew his motion under Rule 59 and
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admitted that it was “likely prepared and filed with an incorrect understanding of the law” (see
Unopposed Motion to Withdraw Motion for Amendment of Judgment Granting City of Fort
Collins' Motion for Attorney's Fees and Bill of Costs Pursuant to C.R.C.P 59, at 1). Finally, Mr.
Sutherland then filed another motion this time arguing that Judge Lammons lacked authority
over this case. See 05/02/19 Motion to Deem this Proceeding Coram Non Judice Since June 23,
2018 Pursuant to Rule 60(b)(5). This motion, while referencing Rule 60(b)(5), is not the type of
post-trial motion that Rule 62(b) contemplates could be the basis for a court granting a
discretionary stay of judgment enforcement proceedings because Mr. Sutherland’s motion does
not request relief from an order or judgment.
Mr. Sutherland is clearly papering this Court with frivolous motions to attempt to avoid
this Court’s judgment for the City. Each of Mr. Sutherland’s motions have necessitated a
response from the City, which further increases the attorneys’ fees and costs associated with Mr.
Sutherland’s frivolous claims. Mr. Sutherland’s never-ending frivolous litigation tactics create a
meaningful (and wholly unnecessary) financial burden on the City and its taxpayers. Thus, the
City will not be adequately protected from Mr. Sutherland’s frivolous litigation unless Mr.
Sutherland to post a bond for 125% of the judgment as required by law. Unless and until Mr.
Sutherland posts a supersedeas bond for 125% of the judgment, the City is entitled to continue
with its execution of its judgment against Mr. Sutherland.1
CONCLUSION
Pursuant to C.R.C.P. 121 § 1-23(3)(a) and C.R.C.P. 62, the Court should not stay
1 The City may file a second motion for attorneys’ fees against Mr. Sutherland seeking the
additional fees that his frivolous litigation conduct has imposed on the City.
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enforcement of the City’s judgment unless Mr. Sutherland posts a supersedeas bond for 125% of
the judgment. If Mr. Sutherland fails to post such bond, the Court should deny Mr. Sutherland’s
motion to stay the execution of the City’s judgment.
Dated this 13th day of May, 2019.
SHERMAN & HOWARD L.L.C.
s/ Rosemary A. Loehr
Rosemary A. Loehr (#52559)
John W. Mill (#22348)
Sherman & Howard L.L.C.
633 Seventeenth Street, Suite 3000
Denver, Colorado 80202
(303) 297-2900
rloehr@shermanhoward.com
jmill@shermanhoward.com
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CERTIFICATE OF SERVICE
I certify that on the 13th day of May, 2019, a true and correct copy of the foregoing CITY
OF FORT COLLINS’S RESPONSE TO PLAINTIFF’S MOTION TO STAY THE
EXECUTION OF THE JUDGMENT was filed via Colorado Court’s E-Filing system, and was
served on the following:
Eric Sutherland, pro se
3520 Golden Currant Boulevard
Fort Collins, CO 80521
(By email and US Mail)
Eric R. Burris, Esq.
Cole J. Woodward, Esq.
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202
(By Colorado Court’s E-Filing)
/s/ Nancy Hedges
Nancy Hedges, Legal Secretary