Old Republic National Title Insurance Co. v. Kornegay
2012 COA 140
Colo. Ct. App.2012Background
- Old Republic paid $250,000 to its insured after a property sale Kornegay did not own and then sued Kornegay for fraud.
- Old Republic sought prejudgment attachment under C.R.C.P. 102 ex parte to preserve assets pending the civil action.
- Pollock affidavit alleged Kornegay ran multiple fraud schemes, used tax liens, and assets were controlled by his wife via power of attorney.
- Writ and garnishments were served on four banks, Colorado county treasurers, and the El Paso County clerk; Kornegay, incarcerated in Nebraska, was served by private process server.
- Kornegay moved to dismiss, quash, traverse, and assert homestead exemption; court denied and sustained attachment; Kornegay appealed under C.R.G.C.P. 102(y).
- Court held Old Republic may be considered a Colorado resident for purposes of 102 and affirmed the orders sustaining attachment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Old Republic a “resident of this state” for 102 prejudgment attachment? | Old Republic is a Colorado resident via presence, offices, and authority to transact business. | Old Republic is not a Colorado resident; attachment not authorized. | Old Republic deemed a Colorado resident for 102 purposes. |
| Did Old Republic comply with 102(b) and (d) regarding execution and bond? | Writ served properly; bond not required or waived by court. | Service and bond requirements not met. | No reversible error; bond discretionary and court properly waived it. |
| Was there compliance with 102(n) regarding Kornegay’s traverse and hearing? | Traverse timely and effectively raised issues; hearing not required. | Traverse was ineffective; no hearing required. | Traverse ineffective; no hearing required. |
| Was Kornegay entitled to a homestead exemption? | Property not occupied by Kornegay or family; exemption not applicable. | Ownership and intent to occupy support exemption. | Homestead exemption not established; attachment sustained. |
| Did the dismissal of Kornegay’s wrongful attachment counterclaim fail? | Counterclaim premised on rejected theories of improper attachment. | Counterclaim lacks legal support. | No error; counterclaim properly dismissed. |
Key Cases Cited
- Farmers Reservoir & Irrigation Co. v. City & County of Broomfield, 239 P.3d 1270 (Colo. 2010) (statutory interpretation; rules of procedure tightly construed)
- Carlson v. District Court, 116 Colo. 330 (1947) (residence vs. domicile concepts; presence and intent determine residency for service/attachment)
- Gordon v. Blackburn, 618 P.2d 668 (Colo. 1980) (distinguishing domicile from residence in election context)
- Munoz-Hoyos v. de Cortez, 207 P.3d 951 (Colo. App. 2009) (residency for cost bond statute based on presence and intent to remain)
- Int'l Milling Co. v. Columbia Transp. Co., 292 U.S. 511 (1934) (corporation can be resident of multiple jurisdictions)