Hiner v. Johnson
2012 WL 4829489
Colo. Ct. App.2012Background
- Plaintiffs Hiner and Quick obtained a settlement with a non‑appealing defendant; doctors Johnson and King requested a writ of attachment to attach the settlement proceeds as statutory costs.
- The trial court issued the writ ex parte, with a bond posted, and plaintiffs moved to vacate the writ the same day.
- Plaintiffs filed an attorney’s lien on the settlement proceeds; the doctors later sought and obtained permission to file a revised affidavit and a hearing on the motion to vacate.
- Before the hearing, plaintiffs sought discharge under CRCP 102(w), asserting the writ was improperly issued because defendants did not assert a counterclaim and because the revised affidavit was insufficient.
- The trial court discharged the writ under CRCP 102(w) and denied plaintiffs’ request for damages, fees, and costs, ruling plaintiffs would only recover if the traverse motion had been granted. The court noted the writ was improper since defendants, not plaintiffs, sought it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 102(a) authorizes attachment for plaintiffs' property | Hiner/Quick rely on 102(a) to permit attachments of defendants' property only. | Johnson/King rely on 102(a) to attach as defendants seeking costs. | 102(a) does not authorize attachment of plaintiffs' property; writ improper. |
| Whether the writ was properly discharged under 102(w) | Writ should remain pending; discharge was improper. | Writ was improperly issued and may be discharged under 102(w). | Writ properly discharged under 102(w). |
| Whether plaintiffs may recover damages, costs, and attorney fees under 102(d)/(n)(2) | Plaintiffs are entitled to costs, damages, and fees because the attachment was improper. | These provisions do not authorize such recovery to plaintiffs when defendants did not assert a counterclaim. | No damages, costs, or attorney fees for plaintiffs under 102(d)/(n)(2). |
Key Cases Cited
- Jayne v. Peck, 155 Colo. 513, 395 P.2d 603 (1964) (Colo.1964) (statutory construction governs in derogation of common law)
- Old Republic Nat'l Title Ins. Co. v. Kornegay, 2012 COA 140, 292 P.3d 1111 (Colo.App.2012) (strict construction of 102; expressio unius exclusio altera)
- Spahmer v. Gullette, 113 P.3d 158, 162 (Colo.2005) (Colo.2005) (expressio unius exclusio in statutory interpretation)
- Beeghly v. Mack, 20 P.3d 610 (Colo.2001) (Colo.2001) (strict construction and exclusivity in 102 context)
- People v. Shell, 148 P.3d 162 (Colo.2006) (Colo.2006) (statutory interpretation of procedural rules)
- Gareia v. Medved Chevrolet, Inc., 240 P.3d 871 (Colo.App.2011) (Colo.App.2011) (relevant interpretive principles for procedural rules)