Martin v. Arapahoe County Court

COLORADO COURT OF APPEALS 2016COA154
Court of Appeals No. 15CA1218
Arapahoe County District Court No. 15CV30232
Honorable Kurt A. Horton, Judge
Larry W. Martin,
Petitioner-Appellant,
v.
Arapahoe County Court; Honorable Christina Apostoli; and Honorable Bonnie
Heather McLean,
Respondents-Appellees.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE RICHMAN
Bernard and Fox, JJ., concur
Announced October 20, 2016
Azizpour Donnelly, LLC, Katayoun A. Donnelly, Denver, Colorado, for
Petitioner-Appellant
Cynthia H. Coffman, Attorney General, Sueanna P. Johnson, Assistant
Attorney General, Denver, Colorado, for Respondents-Appellees
¶1 Petitioner, Larry W. Martin, filed this C.R.C.P. 106(a)(4) action
in district court against respondents, the Arapahoe County Court,
Magistrate Christina Apostoli, and former Magistrate Bonnie
McLean, seeking review of a temporary civil protection order entered
against him in county court. The district court dismissed the case
for lack of subject matter jurisdiction. We conclude that the district
court correctly dismissed the case because a civil protection order is
not a final decision reviewable under C.R.C.P. 106, and under the
circumstances in this case, Martin had other adequate remedies
provided by law. Therefore, we affirm the dismissal.
I. Background
¶2 On November 26, 2014, Martin’s business acquaintance, L.O.,
filed a complaint for a civil protection order against him in county
court, claiming that Martin was stalking her. The complaint alleged
that Martin had sent L.O., her husband, her brother, and her
sister-in-law over seventy e-mails from thirteen different e-mail
addresses in which he professed his love for her and falsely claimed
she was divorcing her husband and having an affair. L.O. also
asserted that Martin’s e-mails described events he could have
known about only by observing her activities.
1
¶3 After an ex parte hearing the same day, the county court
entered a temporary civil protection order pursuant to section
13-14-104.5, C.R.S. 2016. In its order, the county court found,
based on L.O.’s testimony, that Martin constituted a credible threat,
and that an imminent danger existed to the life and health of L.O.
The temporary order required Martin to stay at least 150 yards
away from L.O. and her home. The county court set a hearing for
December 10, 2014, to determine whether the temporary order
should be made permanent, and it issued a citation ordering Martin
to appear on that date.
¶4 Martin appeared with counsel on December 10 and requested
a continuance. The court reset the permanent order hearing for
December 30, 2014, and continued the temporary order. On the
morning of the December 30 hearing, Martin filed a motion to
vacate the temporary order and dismiss L.O.’s complaint, arguing
that (1) the statutory requirements for issuing a temporary civil
protection order were not met and (2) the statutes governing
temporary and permanent civil protection orders were
unconstitutional. At the hearing, the county court denied the
motion to vacate the temporary order, but, at the urging of Martin,
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it continued the hearing on the permanent order to allow briefing
from the Attorney General’s office regarding the constitutionality of
the statutes. It extended the temporary order and reset the
permanent order hearing for February 26, 2015.
¶5 Before the February 26 hearing, however, Martin filed this
action in district court, naming as defendants the Arapahoe County
Court and judges of that court and seeking review of the temporary
protection order under C.R.C.P. 106(a)(4). In his complaint, Martin
alleged that the county court exceeded its jurisdiction in issuing the
temporary order because the evidence before the county court did
not demonstrate imminent danger to L.O.’s life or health.1 The
county court stayed the protection order proceedings and extended
the temporary order pending the resolution of the C.R.C.P. 106
action.
¶6 The county court defendants then moved to dismiss the
C.R.C.P. 106 action for lack of subject matter jurisdiction, arguing
1Martin also alleged that the county court failed to comply with
certain requirements for issuing an ex parte temporary restraining
order under C.R.C.P. 65(b). However, the temporary civil protection
order in this case was issued under section 13-14-104.5, C.R.S.
2016, and Martin does not argue on appeal that C.R.C.P. 65(b)
applies to such orders.
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that (1) the temporary order was not a “final decision” reviewable
under C.R.C.P. 106 and (2) Martin had other adequate remedies
because he could challenge the temporary order at the permanent
order hearing and appeal a permanent order if one was entered.
¶7 After briefing, the district court granted the motion to dismiss
“for the reasons argued by the movant.” This appeal followed.
II. Discussion
¶8 Martin contends that the district court erred in ruling that it
lacked subject matter jurisdiction to review the temporary civil
protection order under C.R.C.P. 106(a)(4). We disagree.
A. Standard of Review
¶9 Where, as here, the facts are undisputed and the jurisdictional
determination presents a question of law, we review the issue of
subject matter jurisdiction de novo. Hendricks v. Allied Waste
Transp., Inc., 2012 COA 88, ¶ 10.
B. C.R.C.P. 106(a)(4)
¶ 10 C.R.C.P. 106(a)(4) authorizes district court review where a
lower judicial body has “exceeded its jurisdiction or abused its
discretion, and there is no plain, speedy and adequate remedy
otherwise provided by law.”
4
¶ 11 A complaint seeking review under C.R.C.P. 106(a)(4) may be
filed only after the judicial body has issued a final decision on the
matter at issue. See C.R.C.P. 106(b) (complaint seeking review
under C.R.C.P. 106(a)(4) shall be filed “not later than 28 days after
the final decision of the body or officer”); Buck v. Park, 839 P.2d
498, 500 (Colo. App. 1992) (complaint must be filed within thirty
days under former version of rule). The filing requirements of
C.R.C.P. 106(b) are jurisdictional in nature. Citizens for
Responsible Growth v. RCI Dev. Partners, Inc., 252 P.3d 1104, 1106
(Colo. 2011).
¶ 12 A final decision is one that “ends the particular action in
which it is entered, leaving nothing further to be done to completely
determine the rights of the parties.” Id. at 1106-07. Whether a
judicial decision is “final” for purposes of C.R.C.P. 106(b)
“necessarily depends upon the scope and nature of the proceeding
and rights at issue.” Id. at 1107.
¶ 13 A final decision for purposes of C.R.C.P. 106(b) review is not
synonymous with a final judgment for purposes of appellate review.
In the context of criminal cases, divisions of this court have held
that a C.R.C.P. 106(a)(4) complaint filed before a final judgment “is
5
appropriate to protect certain rights that would be significantly
undermined if a party were required to proceed to trial prior to
obtaining review.” Hills v. Westminster Mun. Court, 215 P.3d 1221,
1224 (Colo. App. 2009) (reviewing alleged speedy trial violation),
aff’d, 245 P.3d 947 (Colo. 2011); accord Kane v. Cty. Court, 192
P.3d 443, 444 (Colo. App. 2008) (reviewing trial judge’s denial of a
motion to recuse); see also Byrd v. Stavely, 113 P.3d 1273, 1275-76
(Colo. App. 2005) (reviewing trial court’s ruling that the defendants
were not entitled to a jury trial).
¶ 14 Nevertheless, C.R.C.P. 106 review is extraordinary in nature,
and it is not warranted where an adequate alternative remedy exists
under ordinary appellate procedures or other statutory avenues of
review. See State v. Dist. Court, 802 P.2d 473, 476-77 (Colo. 1990);
Kirbens v. Martinez, 742 P.2d 330, 333 (Colo. 1987).
¶ 15 No published Colorado appellate decision has addressed
whether a county court’s entry of a temporary civil protection order
under section 13-14-104.5 is reviewable under C.R.C.P. 106(a)(4).
C. Civil Protection Order Statutes
¶ 16 Section 13-14-104.5(1)(a) authorizes county courts to issue
temporary or permanent civil protection orders for several
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enumerated purposes, including to enjoin stalking.
§ 13-14-104.5(1)(a)(V).
¶ 17 The legislative declaration to the article governing civil
protection orders states:
(1) The general assembly hereby finds that the
issuance and enforcement of protection orders
are of paramount importance in the state of
Colorado because protection orders promote
safety, reduce violence and other types of
abuse, and prevent serious harm and death.
...
(4) . . . [T]he general assembly finds and
declares that stalking is a dangerous, high-risk
crime that frequently escalates over time and
that sometimes leads, tragically, to sexual
assault or homicide. . . . While stalking
behaviors may appear innocuous to outside
observers, the victims often endure intense
physical and emotional distress that affects all
aspects of their lives and are more likely than
others to express anxiety, depression, and
social dysfunction.
§ 13-14-100.2, C.R.S. 2016.
¶ 18 Section 13-14-104.5(4) requires the court to set a hearing on a
request for a temporary civil protection order “at the earliest
possible time” and provides that the hearing may be ex parte. The
court may issue a temporary civil protection order upon a finding
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that “an imminent danger exists to the life or health of one or more
persons.” § 13-14-104.5(7)(a).
¶ 19 If a temporary protection order is issued, the court must issue
a citation “commanding the respondent to appear before the court
at a specific time and date and to show cause, if any, why said
temporary civil protection order should not be made permanent.”
§ 13-14-104.5(8). The return date must be no more than fourteen
days after the date of the temporary order. § 13-14-104.5(10).
¶ 20 At the permanent order hearing, the court may make the
temporary order permanent, or enter a permanent order on different
terms, finding that the respondent “has committed acts constituting
grounds for issuance of a civil protection order and that unless
restrained will continue to commit such acts or acts designed to
intimidate or retaliate against the protected person.”
§ 13-14-106(1)(a), C.R.S. 2016. A finding of “imminent danger” is
not required at this stage. Id.; In re Marriage of Fiffe, 140 P.3d 160,
162 (Colo. App. 2005). The grounds for the issuance of a
permanent protection order are those set forth in section
13-14-104.5. The court may vacate the temporary order if the
statutory requirements are not met. Alternatively, the court may
8
continue the permanent order hearing and extend the temporary
protection order for good cause, if both parties are present and
agree to the continuance. § 13-14-106(1)(b).
D. Analysis
¶ 21 We conclude that the temporary civil protection order entered
against Martin was not subject to district court review in a C.R.C.P.
106 action.
¶ 22 First, a temporary protection order issued under section
13-14-104.5 is not the county court’s “final decision” on a plaintiff’s
request for a civil protection order. Section 13-14-104.5 merely
permits a court to make an initial determination as to whether an
imminent danger exists to the person seeking protection, and to
issue a temporary protection order based on that finding. However,
the temporary protection order is not a final determination of the
rights of the parties. See Citizens for Responsible Growth, 252 P.3d
at 1106-07. The statute contemplates that a final ruling regarding
the plaintiff’s entitlement to a civil protection order, and the terms
of the order, will be made at the permanent order hearing. See
§ 13-14-106(1)(a). Thus, we conclude that the temporary protection
9
order is not a final decision subject to review in a C.R.C.P. 106
action.
¶ 23 Second, the permanent order hearing and ordinary appellate
procedures provide adequate alternative remedies for challenging a
temporary restraining order. The permanent protection order
hearing gives the respondent a prompt opportunity to challenge the
court’s initial ex parte findings and raise any jurisdictional or
procedural deficiencies. Any permanent order entered by the
county court may then be appealed. We conclude that these
procedures provide a “plain, speedy[,] and adequate remedy,” which
precludes review of a temporary protection order under C.R.C.P.
106(a)(4).
¶ 24 In this case, Martin sought to challenge the county court’s
initial finding of “imminent danger” by filing a C.R.C.P. 106 action.
We conclude that the permanent order hearing provided an
adequate opportunity to challenge the evidence supporting that
initial determination. Although a different legal standard applies to
permanent protection orders, Martin could nevertheless have raised
this issue during the hearing in arguing that the temporary order
should be vacated and no permanent order should be entered.
10
Thus, Martin’s challenge was not properly the subject of a C.R.C.P.
106 action.
¶ 25 C.R.C.P. 106 review is extraordinary in nature, and allowing
respondents to challenge temporary restraining orders in this
manner would circumvent the statutory procedures governing civil
protection orders and lead to unnecessary delay. Indeed, by filing
this C.R.C.P. 106 action, Martin has extended the duration of the
temporary order far beyond the fourteen days within which he could
have challenged the order under the statutory procedures set forth
in section 13-14-104.5.
¶ 26 In addition, we are not persuaded by Martin’s reliance on Stull
v. District Court, 135 Colo. 86, 308 P.2d 1006 (1957), and
Intermountain Rural Electric Association v. District Court, 160 Colo.
128, 414 P.2d 911 (1966). In Stull, the supreme court applied a
prior version of C.R.C.P. 106 to review a temporary restraining
order governed by C.R.C.P. 65(b). 135 Colo. at 92-94, 308 P.2d at
1010. The supreme court held that the district court had exceeded
its jurisdiction by entering an order without complying with any of
the requirements of C.R.C.P. 65(b), and that no plain, speedy, and
adequate remedy existed apart from C.R.C.P. 106 review. Id.
11
Similarly, the supreme court held in Intermountain that a temporary
restraining order that has been entered without jurisdiction was
void because it did not comply with C.R.C.P. 65(b). 160 Colo. at
133-34, 414 P.2d at 913-14. Neither case involved a temporary
protection order issued under section 13-14-104.5, which provides
statutory procedures for promptly addressing the challenges that
Martin sought to raise in this C.R.C.P. 106 action. Accordingly, we
conclude that Intermountain and Stull are inapposite.
¶ 27 Finally, we disagree with Martin’s contention that the county
court was lacking jurisdiction to enter the temporary protection
order because there was not sufficient evidence of an imminent
danger to L.O. We do not read as jurisdictional the statutory
provision stating that “[a] temporary civil protection order may be
issued if the . . . magistrate finds that . . . an imminent danger
exists to the life or health of one or more persons.”
§ 13-14-104.5(7)(a). Insufficient evidence of a fact necessary to
enter an order or judgment does not generally deprive a court of
jurisdiction to hear the case. Martin cites no Colorado authority
suggesting otherwise.
12
¶ 28 Because the temporary protection order entered against
Martin was within the court’s jurisdiction and was not a final
decision, and adequate alternative remedies existed for challenging
the order, we conclude that the district court lacked subject matter
jurisdiction to review the temporary restraining order under
C.R.C.P. 106(a)(4).
III. Conclusion
¶ 29 The judgment is affirmed.
JUDGE BERNARD and JUDGE FOX concur.
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