October 21, 2018

Archives for May 11, 2018

Colorado Court of Appeals: C.R.C.P. 4(m) Does Not Require Dismissal if Defendants Not Served 63 Days Prior to Filing of Complaint

The Colorado Court of Appeals issued its opinion in Curry v. Zag Built, LLC on Thursday, May 3, 2018.

Construction Defect Action Reform Act—C.R.C.P. 4(m)—Service—Notice—Notice of Claim—Statute of Limitations.

Defendants Zag Built LLC and its owner, Zagrzebski, (collectively, Zag Built) built a house for the Currys. Shortly after the Currys moved into the house in July 2013, they noticed signs of damage, such as cracks in the drywall and sagging doors. In late-June 2015, the Currys filed a complaint naming Zag Built (among others) as defendants and citing the applicability of the Construction Defect Action Reform Act’s (the Act) notice of claim process, C.R.S. § 13-20-803.5. After filing a status report and two updates, the Currys filed an amended complaint in mid-May 2016. In early July 2017, Zag Built filed a motion for summary judgment, contending that the trial court should dismiss the case. The trial court denied the motion. Zag Built then filed a C.A.R. 4.2 motion for interlocutory review.

On appeal, Zag Built asserted that pursuant to C.R.C.P. 4(m) the trial court erred when it did not dismiss the case when the Currys had not served it within 63 days of the filing of the original complaint. C.R.C.P. 4(m) does not require a trial court to dismiss a case if the plaintiff does not serve the defendant within 63 days of when the plaintiff filed a complaint. Instead, applying the plain language of Rule 4(m), if the court is contemplating dismissing the case within that 63-day period, it must provide the plaintiff with (1) notice that it is contemplating dismissing the case, and (2) an opportunity to show good cause why the court should not dismiss the case. If the plaintiff shows good cause, the court must extend the deadline. If the plaintiff does not show good cause, the court has the discretion to dismiss the case without prejudice, or order that the plaintiff serve the defendant within a specified time. Here, the trial court did not give the Currys notice. Further, C.R.S. § 13-20-803.5(9) stayed the case until mid-April 2016. Therefore, the trial court did not err in declining to dismiss the case.

Zag Built also contended that the trial court should have dismissed this case because the Currys did not send it a notice of claim under the Act until after the statute of limitations had run. First, the statute of limitations stops running once a case is commenced by filing a complaint. Here, the Currys filed their complaint in mid-June 2015, before the statute of limitations had expired. Second, the Act’s notice of claim process is not a prerequisite to filing a complaint or commencing an action. If a plaintiff files a complaint before completing the notice-of-claim process, the case is stayed until the plaintiff completes the process. Therefore, the trial court did not err in declining to dismiss the case on this basis.

The order was affirmed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Plaintiff Need Not Post Bond in Every Land Use Appeal Under C.R.C.P. 106

The Colorado Court of Appeals issued its opinion in Stor-N-Lock Partners Inc. v. City of Thornton on Thursday, May 3, 2018.

Administrative Law—C.R.C.P. 106—Specific Use Permit—Zoning Regulations—Evidence—Bond—Preliminary Injunction.

Plaintiff, Stor-N-Lock Partners #15, LLC (Stor-N-Lock), owns a self-storage facility located in the City of Thornton (the City). The Stor-N-Lock facility is located next to vacant property. Defendant Resolute Investments, Inc. (Resolute) contracted to buy the vacant property and then sought a specific use permit from the City to operate a self-storage facility there. The City granted the permit. Stor-N-Lock appealed the City’s decision to the district court under C.R.C.P. 106. While the case was pending in district court, Resolute filed a motion to require Stor-N-Lock to post a bond, theorizing that by filing the Rule 106 action, Stor-N-Lock had effectively obtained an injunction. The district court summarily denied the motion and affirmed.

On appeal, Stor-N-Lock argued that the City granted the permit in violation of its own zoning regulations, because the City failed to find that Resolute’s use of the property as a self-storage facility enhanced Stor-N-Lock’s property. However, the record evidence supports the City Council’s determination that the proposed use of the property would contribute to, enhance, or promote the welfare of adjacent properties, including Stor-N-Lock’s property. This evidence was sufficient to clear Rule 106(a)(4)’s low no-competent-evidence bar. Thus, the City Council did not abuse its discretion in granting the permit.

On cross-appeal, Resolute argued that although Stor-N-Lock did not seek a preliminary injunction, and the district court did not enjoin Resolute’s use of the property in any way, Stor-N-Lock should nonetheless have been ordered to post a bond when it initiated its Rule 106 action in the district court. Resolute argued that the mere filing of the action increased the financial risk associated with the project and thus created an “effective stay” of its development plan. However, a plaintiff is required to post a bond only when a restraining order or preliminary injunction has been entered . Here, Stor-N-Lock did not seek injunctive relief or a temporary restraining order and therefore was not required to post a bond. The district court did not err in denying Resolute’s motion to require security.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 5/10/2018

On Thursday, May 10, 2018, the Colorado Court of Appeals issued no published opinion and 30 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 5/10/2018

On Thursday, May 10, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Mallett

Hafoka v. Sessions

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.