HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 163 - CITY'S RESPONSE TO PLAINTIFF'S MOTION TO STRIKE NOTICE OF HEARINGActive/50906343.2
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
Carrie M. Daggett, #23316
John R. Duval, #10185
Fort Collins City Attorney’s Office
300 LaPorte Avenue
Fort Collins, CO 80522-0580
Phone Number: (970) 221-6520
cddaggett@fcgov.com, jduval@fcgov.com
Case No.: 2018CV149
Courtroom/Division: 5B
CITY OF FORT COLLINS’ RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
NOTICE OF HEARING OF NOVEMBER 27TH, 2019 AND VACATE ORDER
GRANTING PLAINTIFF’S MOTION FOR A HEARING
DATE FILED: November 21, 2019 9:36 AM
FILING ID: 53F7D0B1E3FA9
CASE NUMBER: 2018CV149
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Defendant City of Fort Collins (the “City”), by and through its counsel, respectfully
submits the following Response to Plaintiff’s Motion to Strike Notice of Hearing of November
27th, 2019 and Vacate Order Granting Plaintiff’s Motion for a Hearing (the “Motion”).
I. Summary
On August 16, 2019, Mr. Sutherland motioned for a hearing on the City’s Second Motion
for Attorneys’ Fees. This Court granted Mr. Sutherland’s motion and ordered the parties to set a
hearing date. See 09/06/19 Order Granting Plaintiff’s Motion for a Hearing (the “Order”). In
accordance with the Rules of Civil Procedure, the parties set Mr. Sutherland’s requested hearing
for November 27, 2019.
Mr. Sutherland now motions this Court to strike the Notice of Hearing that noticed the
date, time, and location of his requested hearing. Mr. Sutherland further motions this Court to
vacate its Order that granted him his requested hearing on the City’s fee motion. Mr.
Sutherland’s combined motion to strike and vacate is procedurally improper and substantively
without merit. This Court should deny the requested relief.
II. The Court Properly Set the Hearing for November 27, 2019
The Court properly set the hearing on the City’s Second Motion for Attorneys’ Fees and
Costs. Mr. Sutherland’s Rule 97 Motion, which he filed only an hour before the scheduled setting,
suspends proceedings. Nothing in Rule 97 suggests that a Court cannot continue its clerical
functions by setting a previously ordered hearing and maintaining an orderly docket. See Firm
Founds. v. Leonard, 2018 Colo. Dist. LEXIS 1216, *5 (“The Court’s inherent power over its
docket should be used to assure that Court’s docket is not abused and that justice will be fairly
applied.”); Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (noting “the power inherent in every
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court to control the disposition of the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants”); United States v. Colo. State Eng’r (In re Water Rights of
United States), 101 P.3d 1072, 1080-81 (Colo. 2004) (same). Further, during the October 1, 2019
telephone setting to set the hearing, the Clerk of this Court notified the parties that the November
27, 2019 fees hearing would be vacated and reset if the Rule 97 motion was not adjudicated before
the hearing. This Court properly denied Mr. Sutherland’s Rule 97 motion on October 30, 2019.
Moreover, at no point during the telephone setting did Mr. Sutherland state that he was
unavailable for a hearing on November 27, 2019. When Mr. Sutherland contacted the Clerk on
October 7, 2019 and complained of his unavailability, he refused to file a motion to continue the
hearing. See Ex. A, Clerk Correspondence. For these reasons, the hearing on the City’s Second
Motion for Attorneys’ Fees was properly set for November 27, 2019.
III. Mr. Sutherland’s Request to Vacate the Order Granting his Motion for a Hearing is
Improper
Mr. Sutherland objects to this Court’s Order granting his request for a hearing for two
reasons: (1) the Order was issued before Mr. Sutherland filed his reply and (2) the Court’s Order
improperly limits the scope of the hearing. Both of these positions are meritless.
The Court’s ruling on Mr. Sutherland’s Motion for a Hearing for was not “premature.” See
Motion at 4. A judge can rule on a motion at any time. E.g., Jones v. Keene Concrete, Inc., 2011
Colo. Dist. LEXIS 559, *2 (ruling on a motion to for reconsideration before a reply brief was
filed). Rule 121 § 1-15, cited by Mr. Sutherland in his Motion, simply outlines the timing of
responses and replies. That rule does not preclude a judge from ruling on a motion at any time
after the motion is filed.
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Further, for the reasons set forth in the City’s Response to Plaintiff’s Motion for a Hearing
(see pages 3-5), the Court properly limited the scope of the hearing to “the reasonableness and
necessity of the fees requested in the City’s July 25 motion.” 9/5/19 Order Granting Plaintiff’s
Motion for a Hearing at 1; see Rose L. Watson Revocable Tr. v. BP Am. Prod. Co., 2014 COA at
¶ 23 n.6 (finding that the trial court properly restricted the cross-examination of an attorney witness
at the attorney fees hearing because “the attempted cross-examination was merely an attempt to
relitigate the motion for summary judgment”). Regardless, Mr. Sutherland’s objections to the
contents of the Order granting his request for a hearing is untimely and inappropriate.
Although Mr. Sutherland terms his motion as a request to vacate, Rules 59 and 60, the rules
that empower a court to vacate its own orders, only apply to final orders and judgments. Because
the Order granting a fees hearing is not a final order, Rules 59 and 60 do not apply. See Moore &
Co. v. Williams, 672 P.2d 999, 1002 (Colo. 1983) (“A final judgment is one which ends the
particular action in which it is entered, leaving nothing further for the court pronouncing it to do
in order to completely determine the rights of the parties involved in the proceeding.”) (internal
quotations omitted). Additionally, the substance of Mr. Sutherland’s Motion suggests that he still
wants a hearing on the fee motion—the issue is that Mr. Sutherland objects to the scope of that
hearing. See Motion at 5 (“However, Plaintiff does have the right to defend against the City’s
second request for attorneys’ fees by introducing any and all evidence and argument necessary to
establish that the first hearing was not superfluous, improper or otherwise frivolous or
groundless.”). What Mr. Sutherland actually seeks is reconsideration.
Mr. Sutherland’s request for reconsideration is untimely. Rule 121 § 1-15(11), which
governs motions for reconsideration, requires a party to file its motion to reconsider within
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fourteen days of the contested order. The movant can only file a belated motion if good cause is
shown. C.R.C.P. 121 § 1-15(11). The Order granting Mr. Sutherland’s motion for a hearing was
entered on September 6, 2019. Mr. Sutherland waited two months (until November 6, 2019) to
object and he has not demonstrated any cause—good or otherwise—for his belated objections.
This Court should disregard Mr. Sutherland’s objections to the scope of the hearing.
Even if Mr. Sutherland’s request was not untimely (or if he had demonstrated the requisite
good cause), reconsideration is not proper. Reconsideration requires “a manifest error of fact or
law that clearly mandates a different result or other circumstance resulting in manifest injustice.”
C.R.C.P. 121, §1-15(11). Mr. Sutherland has alleged no such “manifest error” that “clearly
mandates a different result.” Instead, he merely disagrees with the Court’s analysis and
conclusions. This is insufficient. See id. (“A party moving for reconsideration must show more
than a disagreement with the court’s decisions.”). Accordingly, Mr. Sutherland has failed to meet
his burden to support this request for reconsideration of the scope of the hearing.
IV. Although the Hearing was Properly Set, the City Consents to Reset the Hearing
Given that Mr. Sutherland asserts that he is unavailable and unable to attend the currently
scheduled hearing, the City will consent to reset the hearing. The City obtained available hearing
dates from the Clerk of this Court and communicated to Mr. Sutherland that the City is able to
reset the current hearing for December 13, 2019 at 1:30 p.m. However, Mr. Sutherland was
unwilling to state whether he would be available. See Ex. B, Party Correspondence. Mr. Sutherland
remains unwilling to work with the City reschedule his requested hearing. Because the City has
conferred in good faith with Mr. Sutherland to reschedule his requested hearing,
contemporaneously with this Response, the City is filing a Motion for a Continuance to reset the
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fees hearing for December 13, 2019 at 1:30 p.m.
Dated this 21sr November, 2019.
SHERMAN & HOWARD L.L.L.
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
Email: rloehr@shermanhoward.com
jmill@shermanhoward.com
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CERTIFICATE OF SERVICE
I certify that on the 21st day of November, 2019, a true and correct copy of the foregoing
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.
Jesse Daniel Sutz, Esq.
Chloe Mickel, Esq.
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202
(By Colorado Court’s E-Filing)
/s/ Donna Fouts
Donna Fouts, Legal Secretary