2015 COA 50
Colo. Ct. App.2015Background
- Auxier appealed the Planning Commission’s January 2013 decision affirming a building permit issued to the Fritzes and filed an original district-court complaint on January 25, 2013. That complaint sought mandamus relief against the City Administrator under C.R.C.P. 106(a)(2) to revoke the permit and certificate of occupancy.
- Auxier filed an amended complaint 74 days after the Planning Commission’s final decision (March 25, 2013), adding the City, City Council, and the Planning Commission and asserting a new C.R.C.P. 106(a)(4) claim alleging the Planning Commission exceeded its jurisdiction/abused its discretion.
- The City defendants moved to dismiss. The district court dismissed the 106(a)(4) claim as untimely (not filed within the 28-day Rule 106(b) period and not relating back to the original complaint) and dismissed the 106(a)(2) claim against the Administrator for failure to state a claim.
- Auxier appealed, arguing the amended 106(a)(4) claim related back to the timely original complaint (or was otherwise permitted by Rule 106(b)) and alternatively that Rule 106(b) allowed adding a 106(a)(4) claim after 28 days if some other relief was timely filed.
- The Court of Appeals affirmed: the original complaint did not give adequate notice of a 106(a)(4) claim against the Planning Commission, and Rule 106(b)’s relation-back provision applies only to amendments to a timely 106(a)(4) complaint (e.g., party-name corrections), not to adding a new, untimely 106(a)(4) claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Auxier’s amended C.R.C.P. 106(a)(4) claim related back to the original complaint so as to be timely | Auxier: original complaint gave ample notice of a 106(a)(4) claim (certified record references) so the amended claim relates back | City: original complaint sought only mandamus under 106(a)(2), did not name Planning Commission or allege abuse/excess jurisdiction; relation back inapplicable | Held: No. Original complaint did not provide adequate notice; amended 106(a)(4) claim is a new, untimely claim and was dismissed for lack of jurisdiction. |
| Whether Rule 106(b) permits adding a 106(a)(4) claim after the 28-day limit where the plaintiff filed any other timely complaint within 28 days | Auxier: Rule 106(b) allows amendment of a “timely complaint,” so filing any timely complaint within 28 days lets him add a 106(a)(4) claim later | City: Rule 106(b) requires the original complaint itself to be a timely 106(a)(4) complaint; the amendment provision only corrects party naming or similar defects to an existing timely 106(a)(4) claim | Held: No. “Timely complaint” means a complaint seeking 106(a)(4) relief filed within 28 days; Rule 106(b) permits only party amendments to an otherwise timely 106(a)(4) claim, not the late addition of a new 106(a)(4) claim. |
| Whether the district court erred in dismissing Auxier’s 106(a)(2) mandamus claim against the Administrator | Auxier: sought reinstatement only if the 106(a)(4) claim is reinstated; argued interdependence | City: dismissal for failure to state a claim was proper | Held: Court did not reinstate 106(a)(2) claim because 106(a)(4) dismissal stands; Auxier declined to press independent challenge here. |
| Whether the City defendants are entitled to appellate attorney fees as frivolous | City: appeal was frivolous and warrants fees/double costs | Auxier: appeal had a rational basis | Held: Denied. Appeal was unsuccessful but not frivolous; fees not awarded under C.A.R. 38(d). |
Key Cases Cited
- Dannielson v. Zoning Bd. of Adjustment, 807 P.2d 541 (Colo. 1990) (Rule 106(b) 28-day jurisdictional limit requires dismissal of untimely 106(a)(4) petitions)
- Westlund v. Carter, 565 P.2d 920 (Colo. 1977) (failure to file certiorari review within Rule 106 time is fatal)
- Slaughter v. County Court, 712 P.2d 1105 (Colo. App. 1985) (limitations of Rule 106(b) are jurisdictional and cannot be tolled or waived)
- Richter v. City of Greenwood Village, 577 P.2d 776 (Colo. App. 1978) (relation-back doctrine inapplicable when original complaint fails to state a 106(a)(4) claim)
- Black Canyon Citizens Coalition, Inc. v. Board of County Commissioners, 80 P.3d 932 (Colo. App. 2003) (Rule 106(b) amendment language intended to fix party-naming defects in timely 106(a)(4) petitions)
- Command Communications, Inc. v. Fritz Cos., Inc., 36 P.3d 182 (Colo. App. 2001) (notice-pleading requires adequate notice of claims to opposing parties)