HomeMy WebLinkAbout20093355.tiffCOLORADO COURT OF APPEALS
Court of Appeals No.: 07CA2454
Weld County District Court Nos. 05CV513 86 05CV1488
Honorable Jonathan W. Hays, Judge
Town of Mead, a statutory municipality and political subdivision of the State of
Colorado,
Plaintiff -Appellant,
v.
Board of County Commissioners of Weld County, Ken Williamson, Connie
Williamson, Ray School, Alma School, Nick Sekich, Tom Reynolds, Merle
Maass, Bill Woods, Gary Woods, Don Owens, Scott Owens, and Ed Kanemoto,
Defendants -Appellees.
ORDERS AFFIRMED
Division V
Opinion by: JUDGE METZGER*
Dailey and Richman, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced: January 22, 2009
Bendelow Law Firm, P.C., Edward M. Bendelow, Scott S. Watson, Denver,
Colorado, for Plaintiff -Appellant
Bruce Barker, County Attorney, Cindy Giauque, Assistant County Attorney,
Greeley, Colorado, for Defendant -Appellee Board of County Commissioners of
Weld County
Ballard Spahr Andrews & Ingersoll, LLP, Roger P. Thomasch, Jon Bernhardt,
Denver, Colorado, for Defendants -Appellees Ken Williamson, Connie
Williamson, Ray School, Alma School, Nick Sekich, Tom Reynolds, Merle
Maass, Bill Woods, Gary Woods, Don Owens, Scott Owens, and Ed Kanemoto
eiom �LG i GLc'CdG
i/7of9
2009-3355
Mary G. Zuchegno, Denver, Colorado, for Amicus Curiae Special District
Association of Colorado
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2008.
Plaintiff, the Town of Mead, appeals several trial court orders
involving the organization of the East I-25 Sanitation District. We
affirm.
I. Background
Twelve individuals who own land in unincorporated Weld
County (proponents) sought to form, pursuant to the Special
District Act, §§ 32-1-101 to -1807, C.R.S. 2008, a special district to
provide sanitary sewer service to their land. They proposed to the
Weld County Board of County Commissioners (Board) a service plan
for the proposed district, which is the first step in forming a special
district.
Before the Board's hearing on the plan, Mead, a neighboring
town, provided over 200 pages of written argument and materials
opposing the plan. Mead also presented testimony at the hearing.
Nevertheless, the Board conditionally approved the service plan.
Several months later, Mead filed an action in the trial court,
seeking review of the Board's decision under C.R.C.P. 106(a)(4),
asserting that the Board had acted arbitrarily and capriciously, and
had abused its discretion. Proponents also filed a petition in the
trial court pursuant to another section of the Special District Act,
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seeking an election on the issue of the organization of the proposed
district. Mead filed an objection to the petition. The court
consolidated the actions.
After conducting a lengthy evidentiary hearing, the court
determined that the Board did not act arbitrarily or capriciously or
abuse its discretion in approving the plan. The court thus rejected
Mead's objections to the petition under the Special District Act and
also dismissed Mead's C.R.C.P. 106(a)(4) action. The court further
ordered the question of the proposed district's organization to an
election.
Mead moved to stay the election, but the court denied the
stay. Mead also appealed to this court, but because the action had
not yet been finally resolved, this court determined that it lacked
jurisdiction to consider the appeal.
The election occurred on October 7, 2007, and the voters
approved the organization of the proposed district. The trial court
subsequently issued an order declaring the organization of the
district pursuant to section 32-1-305(6), C.R.S. 2008, of the Special
District Act. Mead appeals.
II. Order Formally Organizing the District
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Mead contends that the trial court erred in declaring the
district officially organized. Defendants, the proponents and the
Board, argue that Mead cannot challenge the district's organization.
We agree with defendants.
Section 32-1-305(7), C.R.S. 2008, of the Special District Act
provides:
If an order is entered declaring the special
district organized, such order shall be deemed
final, and no appeal or other remedy shall lie
therefrom. The entry of such order shall finally
and conclusively establish the regular
organization of the special district against all
persons except the state of Colorado in an
action in the nature of a quo warranto
commenced by the attorney general within
thirty days after entry of such order declaring
such special district organized and not
otherwise. The organization of said special
district shall not be directly or collaterally
questioned in any suit, action, or proceeding
except as expressly authorized in this
subsection (7).
(Emphasis added.)
Thus, under the unequivocal language of the Special District
Act, a court's order declaring a special district organized is final and
may not be appealed. See § 32-1-305(7); In re Org. of Upper Bear
Creek Sanitation Dist., 682 P.2d 61, 64 (Colo. App. 1983) (quo
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warranto action by the attorney general is the exclusive method of
attacking an order declaring a special district organized), affd, 715
P.2d 799 (Colo. 1986). And, contrary to Mead's suggestion, State
Farm Mutual Automobile Insurance Co. v. City of Lakewood, 788
P.2d 808 (Colo. 1990), and Upper Bear Creek Sanitation Dist., 682
P.2d at 64, do not hold otherwise.
Here, on October 31, 2007, the trial court entered a final order
that declared the official organization of the special district.
Accordingly, the district's organization is final, and Mead may not
appeal it. See § 32-1-305(7); Upper Bear Creek, 682 P.2d at 64.
III. Orders Preceding the District's Organization
Despite the statutory ban on appeals from orders that organize
a special district, Mead contends that it may appeal the trial court's
orders and rulings that preceded the final order. Again, we
disagree.
A. Final Judgment Under C.R.C.P. 54(b)
First, Mead argues that it may appeal the interlocutory orders
of the court because Mead had moved for C.R.C.P. 54(b)
certification, and the trial court erroneously denied it. We are not
persuaded.
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Generally, an entire case must be decided before any ruling in
that case can be appealed. Cyr v. Dist. Court, 685 P.2d 769, 770
(Colo. 1984). However, C.R.C.P. 54(b) permits a trial court to direct
the entry of a final judgment as to one or more of the claims or
parties upon a determination that there is no just reason for delay.
See Soto v. Progressive Mountain Ins. Co., 181 P.3d 297, 299-300
(Colo. App. 2007). But absent a trial court's entry of final judgment
pursuant to C.R.C.P. 54(b), parties may not appeal until the entire
litigation is complete and final judgment has entered. See In re
Marriage of Salby, 126 P.3d 291, 294 (Colo. App. 2005) (appeal only
permitted upon trial court certification); Woznicki v. Musick, 94 P.3d
1243, 1245 (Colo. App. 2004) (final judgment is one that ends the
entire litigation, leaving nothing further for the trial court to do),
aff'd, 136 P.3d 244 (Colo. 2006).
Here, before the entire case had been decided by the trial
court, Mead filed a motion for entry of a final judgment as to the
court's June 22, 2007 order. The court denied Mead's motion.
Because the entire case had not yet been decided, the court
was not required to enter final judgment and thus did not err in
denying Mead's motion. See Trans Cent. Airlines, Inc. v. Peter J.
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McBreen & Assocs., Inc., 31 Colo. App. 71, 72-74, 497 P.2d 1033,
1034-35 (1972) (trial court has discretion to enter final judgment if
prerequisites of rule are satisfied).
B. Legislative Intent
Next, Mead argues that it is entitled to appeal the trial court
orders preceding the final order organizing the district because it
would otherwise be left with no recourse. According to Mead, that
could not have been the General Assembly's intent. We are not
persuaded.
Contrary to Mead's suggestion, the General Assembly
expressed its intent in the plain, unequivocal language of section
32-1-305(7) of the Special District Act, which, as discussed, states
that an order declaring a special district organized is final and not
appealable. See Lawry v. Palm, 192 P.3d 550, 565 (Colo. App.
2008) (court determines legislative intent from plain language of
statute). Thus, to permit Mead to appeal the court's orders
preceding the order organizing the district would circumvent the
plain command of section 32-1-305(7) because it could indirectly
call into doubt the finality of the district's organization.
C. Absence of Specific Prohibition
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Mead also argues that it is entitled to appeal the court's
interlocutory orders because there is no prohibition of such an
appeal in section 32-1-305(4), C.R.S. 2008, of the Special District
Act. We are not persuaded.
Section 32-1-305(4) provides that a trial court shall direct to
an election the question of a district's organization if it appears that
a petition has been signed and its allegations are true. Although
Mead is correct that the section does not include a specific
prohibition against appealing a court's determinations pursuant to
the section, such a prohibition is unnecessary. Rather, such a
determination may be appealed if it constitutes a final judgment.
Woznicki v. Musick, 94 P.3d at 1245. Otherwise, as discussed, it
may only be appealed if the court certifies the order as final
pursuant to C.R.C.P. 54(b). See In re Marriage of Salby, 126 P.3d at
294.
Here, the trial court's determination regarding the veracity of
the allegations in the petition did not constitute a final judgment
nor was it certified as final under C.R.C.P. 54(b). Accordingly, we
reject Mead's contention. See In re Marriage of Salby, 126 P.3d at
294; Woznicki v. Musick, 94 P.3d at 1245.
IV. Dismissal of C.R.C.P. 106(a)(4) Action
Claiming that the Board abused its discretion in approving the
proposed district's service plan, Mead contends that the trial court
erred in dismissing its action brought under C.R.C.P. 106(a)(4). We
find no error.
Where there is no "plain, speedy and adequate remedy
otherwise provided by law," C.R.C.P. 106(a)(4) provides for judicial
review of agency action to determine whether the action was an
abuse of discretion. See Denargo Market Neighbors Coalition v.
Visser Real Estate Investments, 956 P.2d 630, 632 (Colo. App.
1997).
However, where a statute expressly provides for review of
agency action, it is presumed that the General Assembly intended
for that procedure to be the exclusive means of review. See T&S
Leasing, Inc. v. Dist. Court, 728 P.2d 729, 731 (Colo. 1986).
Here, section 32-1-206, C.R.S. 2008, of the Special District Act
expressly provides a procedure for judicial review of a board's
approval of a service plan. Specifically, it provides that an
interested party may appear and be heard at the court hearing
regarding the petition for organization of the district and further
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provides that the court may dismiss the petition if it determines
that the Board's actions were arbitrary, capricious, or
unreasonable. § 32-1-206(1), C.R.S. 2008.
Not only did the General Assembly expressly provide for
judicial review in section 32-1-206, but the statute provides nearly
the same review as C.R.C.P 106(a)(4). Compare § 32-1-206(2),
C.R.S. 2008 (reviewing board's action to determine whether it was
arbitrary, capricious, or unreasonable), with C.R.C.P. 106(a)(4)
(reviewing agency action to determine whether it was an abuse of
discretion). Accordingly, because Mead had a plain, speedy, and
adequate remedy, the trial court did not err in dismissing the
C.R.C.P. 106(a)(4) action.
V. Arguments Raised in Reply Brief
Because they were raised for the first time in Mead's reply
brief, we will not address the arguments that § 32-1-305, C.R.S.
2008, is unconstitutionally vague and constitutes a denial of due
process. See People v. Fogle, 116 P.3d 1227, 1230 (Colo. App.
2004).
The orders are affirmed.
JUDGE DAILEY and JUDGE RICHMAN concur.
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Colorado Court of Appeals
2 East 14th Ave., Third Floor IrrOUSSFt
Denver, CO 80203
COPIES MAILED TO
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Weld County
2005CV1488
Weld County
2005CV513
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ON aT�l9
BY <it
Plaintiff -Appellant:
Town of Mead A STATUTORY MUNICIPALITY AND
POLITICAL SUBDIVISION OF THE STATE OF
COLORADO,
v.
Defendants -Appellees:
Board of County Commissioners OF WELD COUNTY, Ken
Williamson, Connie Williamson, Ray School, Alma School,
Nick Sekich, Tom Reynolds, Merle Maass, Bill Woods, Gary
Woods, Don Owens, Scott Owens, and Ed Kanemoto,
Andrus Curiae:
Special District Association of Colorado.
Court of Appeals Case
Number:
2007CA2454
MANDATE
This proceeding was presented to this Court on the record on appeal.
In accordance with its announced opinion, the Court of Appeals hereby
ORDERS:
ORDERS AFFIRMED
CHRISTOPHER T. RYAN
CLERK OF THE COURT OF APPEALS
r�
MAR 2 3 2009 i
WELD COUNTY
ATTORNEY'S OFFICE
DATE: MARCH 20, 2009
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