Bush v. Winker , 19 Brief Times Rptr. 1623 ( 1995 )

Justice MULLARKEY

dissenting:

The majority holds that Kent Winker (Winker) may appeal the default judgments entered against C & I Partnership (C & I), Wins-Quince, and Mid-America Resources (MAR), even though the three partnerships themselves did not appeal. The majority also holds that G & W Partnership (G & W) was not a proper defendant, and, as a result, C & I and Wins-Quince were not properly served. Accordingly, the majority upholds the court of appeals’ conclusion that judgments were entered improperly against Winker and G & W. Finally, the majority remands the ease to the court of appeals which has directed further proceedings with respect to MAR. I respectfully dissent.

First, the limited exception allowing a non-party to appeal a judgment does not apply to this situation, and it should not be extended to cover this ease. Generally, only the parties to an action can file a notice of appeal, not a new party at the appellate stage of litigation. People v. South Platte Water Conservancy Dist., 139 Colo. 503, 343 P.2d 812, 817 (1959). I agree that there is a limited exception to this general rule which allows a non-party to appeal if the non-party demonstrates that he or she is substantially aggrieved by the trial court’s order or judgment, and would be left without a reasonably expeditious judicial remedy. Miller v. Clark, 144 Colo. 431, 432, 356 P.2d 965, 966 (1960) (“[T]o prosecute an appeal a person must either be a proper party to the action or he must be a person substantially aggrieved by the disposition of the case in the lower court.”); see also 6 James C. Moore et al., Moore’s Federal Practice § 203.06 (2d ed. 1985) (“[T]o appeal, a non-party must be privy to the record and aggrieved by the judgment.”). In Miller, we refused to permit a guardian ad litem to appeal a trial court’s determination of heirship, finding that the guardian ad litem was not aggrieved by the court’s decision. Miller, 144 Colo. at 431, 356 P.2d at 965.

In the case before us, the majority holds that Winker, who was a party in the trial court, comes within the non-party exception for purposes of this appeal. According to the majority, Winker may appeal the judgments entered against the three partnerships because he was substantially aggrieved by the ruling. See maj. op. at 82. I disagree with the majority’s reasoning.

In my view, allowing a non-party to appeal a decision is a limited exception based on equity considerations, and it should not be expanded to include the facts of this case. Roberts-Henry v. Richter, 802 P.2d 1159 (Colo.App.1990), the ease cited by the majority in support of its position, illustrates the limited circumstances in which the non-party exception applies. In Roberts-Henry, the appellant, who was allowed to appeal under the non-party exception, was the plaintiffs treating psychiatrist. Although the psychiatrist was not a party to the proceedings and did not testify at trial, she was subjected to extensive discovery by the defendant. The psychiatrist was allowed to appeal the trial court’s order denying her motion for attorney’s fees, costs and sanctions against the defendant. Id. at 1159.

The other non-party appeal cases arise in similar circumstances. For example, the court of appeals has held that an attorney is the real party in interest who may appeal C.R.C.P. Rule 11 sanctions; the client, who was the party in the trial court, is not the proper party to appeal. Maul v. Shaw, 843 P.2d 139 (Colo.App.1992); see also Cerveny v. Wheat Ridge, 888 P.2d 339, 341 (Colo.App.1994) (collecting cases and noting that the non-party exception often involves non-parties who have been sanctioned or who have been denied costs and fees by trial courts), cert. granted on other issues, No. 94SC521 (Colo. Feb. 13, 1995).

The exception allowing a non-party to appeal a decision is based on notions of equity and fairness. Tower v. Tower, 147 Colo. 480, 364 P.2d 565 (1961). Truly compelling circumstances have moved appellate courts to provide the non-party with a full and fair opportunity to contest a final judgment. However, this case does not merit an equitable remedy. Winker participated in the initial trial as a party and had a full and fair opportunity to litigate before the court. The three partnerships against whom the judgments were entered were also parties and they did not appeal. The majority allows Winker to appeal here because he is contingently liable for the three partnerships’ judgments as an indirect partner in the three entities. If that interest is sufficient to permit him to appeal under the non-party exception, his interest is also sufficient for him to cause an appeal to be taken by the partnerships.

Thus, I would not allow Winker to appeal under the non-party exception, and would reinstate the judgments against the three partnerships.

The second issue is whether G & W was properly served. As a technical matter, I note that G & W is not a party in this appeal; only Winker is involved in this appeal. It is somewhat ironic to address the fine points of pleading and service of process in a case involving an issue that is not correctly postured for decision. G & W and Winker were parties to a second appeal which the court of appeals first refused to consolidate with this case, and then dismissed as moot after it decided this case. These rulings seem to be in error, but that issue is not before us. Nevertheless, I address the G & W issue because the majority does so.

Generally, a summons and complaint are served upon an individual to provide that person or entity with notice and the opportunity to prepare for future court proceedings. Southerland v. Argonaut Ins. Co., 794 P.2d 1102 (Colo.App.1990). A partnership may be sued in its common name or by naming its partners. Frazier v. Carlin, 42 Colo.App. 226, 591 P.2d 1348 (1979); see also § 13-50-105, 6A C.R.S. (1987). Personal service on a partnership is accomplished by delivering a copy to one or more of the partners or a managing or general agent of the partnership. C.R.C.P. 4(e)(4).

In the case before us, I believe that G & W was properly served. The caption of the complaint in this case is as follows:

KENT WINKER, individually, as officer and/or director of CCNB, and as a general partner of Wins-Quinee and G & W Partnership, a general partner of Mid-America Resources.

First, proper service was effectuated against Winker. The complaint provided Winker with notice that he was being served “as a general partner of ... G & W Partnership, a general partner of Mid-America Resources.” This notice was sufficient to justify holding that G & W was properly served because Winker’s notice and knowledge is attributed to G & W under the Uniform Partnership Law. § 7-60-112, 3A C.R.S. (1986); see also 9 Bromberg & Rubstein, Partnerships § 4.06 (3d ed. 1987) (general knowledge or notice exists if a single partner has knowledge or was the person notified).

The majority notes that “there is no specific reference to G & W in any of the claims.” See maj. op. at 82. However, the petitioners asserted sixteen claims for relief against all defendants. Id. Moreover, the majority misconstrues the liability of G & W. G & W was named as a partner in Wins-Quince and C & I, and its liability is contingent on the failure of Wins-Quince and C & I to pay the judgments against them. Because a partnership is a legal fiction, Winker, as a general partner of G & W, was a proper party to be served. See Erving v. Virginia Squires Basketball Club, 349 F.Supp. 709, 711 (E.D.N.Y.1972) (service on general manager of corporation which was the general partner of a limited partnership was effective service on the limited partnership); Thomson v. Eastern Bechtel Corp., 24 F.R.D. 41, 42 (S.D.N.Y.1959) (service on manager of corporation affiliated with another corporation was effective service on second corporation).

For these reasons, I respectfully dissent.