*1 Schroeder, BUSH, James Ye Cliff Charles Giannasi,
ros, Fish, Pa Moreno Dennis Leroy Likes, Giannasi, I. Peti
tricia
tioners, WINKER, Respondent.
Kent
No. 94SC363. Colorado,
Supreme Court
En Banc.
Nov. 1995.
Rehearing Dec. Denied *2 Wins-Quince,
of Mid-America Resources (MAR), (C I). Partnership and C & I & defendant, Kent Winker was named as a individually general partner both and as a of (G Partnership and G & W W). designated G & W was MAR, partner of and MAR also was named proceeded as a defendant. The case to trial on several individual claims1 asserted Winker, against petitioners jury and a ver- Villanueva, P.C., Bader, him against L. dict was entered in Bader & Gerald the amount Jr., Dement, Denver, $23,750 aiding abetting for Randolph for Peti- of and breach of S. Bush, Yeros, fiduciary duty. tioners Winker did not Charles James Dennis Fish, Giannasi, Giannasi, Patricia verdict. Moreno Leroy
and I.
Likes.
trial,
petitioners
Before
had filed a
against
I,
Schroeder, P.C.,
judgment
motion for default
C &
Clifton P.
Clifton P.
Wins-Quince,
Schroeder, Denver,
part-
and
MAR based
those
for Petitioner Cliff
nerships’ failure to
answers to
com-
file
Schroeder.
trial,
plaint.
petitioners
After
Waters,
Robinson,
Rapson,
O’Dorisio and
motion,
joint
requesting
amended the
Robinson,
P.C.,
Bohling,
Peter A.
Martha J.
judgment
against
and several
be entered
Denver,
Respondent.
for
partnerships,
against
and
Winker individual-
ly.
requested
The amended motion also
Chief Justice VOLLACK delivered the
against
be able to execute
Wink-
Opinion
Court.
non-partnership
judg-
er’s
assets
granted
certiorari to
the deci
review
against
peti-
ments
if the
sion
the court
in Bush v.
obtain
tioners were unable to
satisfaction
Winker,
In a the trial held The court next held that &G W was not a defendant, general partner named that Winker was MAR and that Winker therefore could through and G & W and also held that G & W was a not be held liable judgment against & for the C & and W C & I and Wins-Quince. Additionally, court then concluded that because the court held *3 that C & I and copy was served with a were not served the summons and properly, I, and the default complaint, Wins-Quince, against the these entities were Finally, therefore void. MAR were also served. The court appeals held that the trial court’s party also held that G & W was a named in factual findings regarding legal Winker’s re- caption the suit because the lationship with MAR were unclear. The being stated that Winker was sued as a court evidentiary therefore remanded for an partner in G & W. hearing on this issue. 6, 1992, August On Winker filed a motion requesting in the trial court that it set aside II. 60(b). pursuant its orders to C.R.C.P. first contend that the court Thereafter, 18, 1992, September Winker appeals in determining erred that it had appeal filed a before the trial court jurisdiction arguments to consider advanced could rule on the motion. post-judgment by Winker on partnerships behalf of the appeals The court of then remanded the case 10, in judgment named the default of June to allow the trial court to rule on the motion. 1992, reversing and in judgments against the 21, 1993, On October court denied them partnerships because those did not file granted the motion and by a motion filed appeal. a notice of argues Winker that he petitioners ordering separate judg- that a standing appeal had because he was sub- against ment be entered speci- Winker stantially aggrieved. argues Winker further fied amount accordance with the court’s standing that once appeal he had previous regarding judgment.3 orders default judgment against default partnerships, argue he was entitled any applicable 2, 1993, On November Winker and G & W grounds appeal, for reversal on and therefore MAR, appeal. Wins-Quince, filed a notice of advancing arguments on his own behalf appeal. and C & I did not The court of rather than on behalf of the appeals denied a motion Winker and G & appeal W to consolidate this with the notice agree non-party with Winker. A appeal Septem- filed Winker alone on standing appeal has an order of the trial 18, ber appeals The court of then following entry court judgment of final if it pursuant reversed the trial court’s order appears non-party substantially that the appeal the first and dismissed the second aggrieved by Roberts-Henry the order. prejudice for mootness. Richter, 1159, 1161 (Colo.App.1990). 802 P.2d non-party order, appealed Once the it order, In reversing the trial court’s may substantively is axiomatic that he advo rejected petitioners’ first cate reversal of the order. To hold other juris- claim that the court of lacked standing granted by wise would render the diction over the The court held that meaningless. the Richter rule jurisdiction proper because Winker was substantially aggrieved by regard- case, the order In the instant Winker was a ing judgment against partner- the default to the initial action in trial court. ships and standing challenge thus had He ais to the order at issue rulings. those judgment primarily because was 3. The order states in judgment 1. Name of in whose favor pertinent part: granted: is Charles Bush Plaintiffs’ Renewed Motion For Order Upon Directing against Judgment Against judgment 2. Name of Clerk To Enter whom M. Party (The Showing Regarding Kent is entered: Winker and M. Kent Winker.... same Partner- Judgment, language the Court directs that is contained in ship each hereby plaintiff's following judgment Winker). against shall enter: ment 352, 353, (1908). partnerships, phy, 94 P. satisfy only partnerships did not regard if the drafting complaint against With Hence, only appeal
judgment.
may
partnership,
partnership may
“[a]
be sued
aggrieved
substantially
if he was
order
its
naming
either
common name
language
order
thereby. The
itself
Carlin,
partners.”
42 Colo.App.
Frazier v.
substantially ag
Winker was
indicates that
(1979);
see also
grieved by
default
13-50-105,
(providing
it
partnerships, because
created a conditional
partnership may
be sued
its com
liability
maturing into an en
name).
mon
obligation
if the
did
forceable
judgment.4
applying
bar,
satisfy
petitioners’
the case at
Second
Richter,
the rule articulated
Complaint
Amended Consolidated
did not
*4
order,
appeal that
entitled to
and
required
provide
meet the
standard
jurisdiction appeals
had
consider
therefore
subject
it
to & W that was the
of a
G
cause of
arguments advocating
the merits of Winker’s
Although
caption
action.
the
of the com-
reversal.
plaint names Winker
an individual
as
and as
general partner Wins-Quince
a
of
and G &
III.
W,
neglects
it
to name the
itself
petitioners next
the
The
assert that
court
Moreover,
or
name all of
partners.5
that,
appeals
by holding
of
erred
because G
body
complaint
in the
nowhere
does
named
a
& W was not
as
defendant
the
petitioner
refer to W as a
G &
defendant.
petitioners’ Second Amended Consolidated Although
complaint
sets forth sixteen
Complaint,
party
& was not a
defen-
G W
relief,
specific
for
no
claims
there is
refer-
petitioners
argue that even
dant. The
any
ence to G & in
W
of
claims. The
specifically
though
was not
named as
G & W
appeals aptly
of
court
noted:
defendant,
complaint
the fact
that
a
certain
against
claims are asserted
While
general
individually and
a
named
as
defendants,”
allegation
“all
is no
there
Wins-Quinee
partner of
and G & W should
the reader
for
alert
that G W is
some
for
court to
have been sufficient
the trial
jurisdiction
party
group....
as a
obtain
over G & W
reason included
defendant. Winker maintains that because
fail
complaint
summons and
to indicate
complaint makes no
to G &
reference
W
against
a claim
that
has been made
G & W
time,
any
as a
at
makes a
defendant
nor
separate entity,
it is undisputed
as a
and
W,
single
against
claim
G &
court
partners
all of
that
of G & W have not
may
jurisdiction
not exercise
over G & W as
named as
been
defendants.
party
a
defendant.
v.
at
Bush
892 P.2d
331.
agree with
that the ref
We therefore hold that because the com-
complaint
erence in the
to G & W was insuf
plaint was
provide
insufficient to
notice to G
provide
ficient
notice to
that it was
G & W
party
that
it
defendant
& W
being
party
into court as a
defendant.
haled
action,
jurisdiction
the trial court
no
had
over
very purpose
pleading
of
inform
is to
judgment
and
G &
W
of
so
adverse
the cause of action
as to
thus
& W is
void. We further hold that to
provide
opportunity
prepare
it with
liability
predicated
the extent
on the
and
the action at
trial.
defend
Co.,
W,
obligations
Argonaut
ment
.G &
Ins.
Winker’s
Southerland
(Colo.App.1990);
judgment
v. Mur
that
also void.
Soden
under
are
13-50-105,
named,
(1987),
Although
provides
partner,
6A
5.
Winker is
the other
Section
C.R.S.
Gardner,
separate property
anywhere
that “the
individual
John
is not mentioned
in the
member thereof who is named as a
ually
individ-
complaint.
individually
and
whom
the court has
over
acquired jurisdiction
by
appear-
entry of
either
process may
ance
bound
service
therein.”
hold that
IV.
as well. We
the summons did
provide
requisite
notice.
that the court
petitioners next contend
appeals
Sny
The court of
cited Weber v.
& I and
holding
erred
that C
West,
(Utah Ct.App.1990),
P.2d
derville
properly
were not
served when
(Utah
denied,
1991),
rt.
not then receive on service behalf of that entity. V. alternatively contend on Ronald McDonald B.Service upon was not sufficient to if service attorney, George Ronald McDonald’s & I and on C effect service C.Price, was served on behalf of McDonald effected on those proper then service on 1990. Price December executed upon three other individu- entities service acceptance waiver and of service on Mc Brey, Brey, Gary and Ronald Mc- als: Jarl Donald’s behalf. have never ruled on the We conceding that those Donald. while question partner’s of whether service on a process at three individuals were served attorney, spe when the has not times, that such service was
various asserts cifically designated attorney to receive as service C & and Wins- ineffective service, partner can constitute service on the Quince. ship. jurisdictions Several which have ruled appeals’ holding We affirm the on a on this issue have held that service Brey, Gary Brey, upon Jarl service attorney defendant’s will not effect service on proper not and Ronald McDonald did effect has au the defendant unless defendant Wins-Quince or & I. will service on C attorney to receive such service. thorized sepa- the service on each individual discuss See, e.g., Santos v. State Farm Fire & Casu rately. (2d Cir.1990) Co., alty 902 F.2d (“[Sjervice process attorney an *6 Brey on Jarl A.Service accept authorized to service for his client is Brey peti with the Jarl served ineffective.”) (citing Wright 4A Charles A. & Consolidated tioners’ Second Amended Com Miller, R. Arthur Federal Practice and Pro 23,1990. complaint plaint September The on (2d 1987)); § cedure 1097 ed. Leonard v. Wins-Quince & I and as de names both C Co., Inc., 653, F.Supp. Stuart-James fendants, and the returns of service indicate (N.D.Ga.1990) (holding that service is not Brey partner of C that Jarl was served attorney, party’s avoided service on a as however, Wins-Quince. Brey, & I and Jarl attorney service on an is ineffective unless he longer I partner was no a of C & or Wins- service). accept has been authorized to such 23, 1990, Quince September and had no agree analysis with the in those cases authority accept partner for the service Hence, adopt reasoning. and thus their as ships Brey’s authority ac at that time. there is no indication that Price was autho January cept such service terminated on I or rized receive service on behalf C & voluntary upon filing bankruptcy his a on Price did not consti service petition. Brey’s bankruptcy dissolved the tute on those entities. service partnerships authority and terminated his § partnerships. receive for the 7- service Gary Brey C. Service on (1986) (“Dissolution 60-131(l)(e), 3A is C.R.S. Gary Brey personally served on [b]y bankruptcy part caused ... however, Brey, June partnership_”); ner or 7-60- complaint with an earlier version (1986) (“The 135(3)(b), neither I nor which named C & by any is in no act partner case bound of a Therefore, as this service was defendants. [wjhere after dissolution ... not effective as to those bankrupt_”). become complaint was later amended to include the such, however, Brey partnerships; As service on Jarl could this version of the Brey, on his upon not effect service & I or was not served on but C Wins- above, Quince. attorney. explained service on a Bolstering holding is the fact As this dissenting: constitute service Justice MULLARKEY attorney cannot partner’s the initial neither partnership. on the majority holds that Kent Winker Brey subsequent service nor the service on (Winker) may appeal the default attorney to effect ser- was sufficient on his (C I), Partnership & I & entered C I Because upon & or vice C Wins-Quince, and Mid-America Resources I service on C & or was no effective there (MAR), though even the three that the default Wins-Quince, we conclude majority not themselves did must va- judgment against those entities (G W) Partnership also holds that & W separate judgment Consequently, the cated. defendant, and, result, proper was not a judg- against Winker based I and were not Wins-Quinee I must against C & and ments Accordingly, majority upholds served. also be set aside. appeals’ court of conclusion that improperly
ments were entered
Finally,
majority
and G & W.
VI.
appeals
the ease to the court of
remands
is that the
petitioner’s final contention
proceedings
which has directed further
with
by holding that the
appeals erred
respectfully
respect to MAR.
dissent.
findings regarding Wink-
trial court’s factual
First,
exception allowing a non-
the limited
relationship
MAR were un-
legal
with
er’s
appeal
apply
does not
remanding the
and thus
issue
clear
situation, and it should not be extended
this
argues that the court of
trial court. Winker
Generally, only
par
to cover this ease.
correctly remanded this issue for an
appeals
appeal,
action can file a notice of
ties to an
evidentiary hearing.
appellate stage
at the
new
litigation. People v. South Platte Water
The court of
remanded
Dist.,
Conservancy
it was unable to determine
issue because
(1959).
agree
there is a
if
and from the court’s order
from the record
exception
to this
rule which
limited
considered whether Winker
the trial court
non-party
if the
allows
presenting
from
such testimo
was foreclosed
substantially
or she is
demonstrates
he
record,
scrutiny
ny.
we
After careful
judg
aggrieved by the trial court’s order or
it
agree
ment,
reasonably
and would be left without
unclear whether the trial court considered
*7
Clark,
judicial remedy.
v.
expeditious
Miller
testimony
relation
on the issue Winker’s
431, 432,
965,
356 P.2d
966
ruling.
ship
making
MAR in
with
(“[T]o
appeal
person
prosecute an
must
appeals’ ruling that
thus affirm the court of
proper party to the action or he
either be a
for an eviden-
this issue should be remanded
substantially aggrieved
person
must be a
tiary hearing
the issue of
that also addresses
disposition
the
of the case
the lower
damages
to be awarded
Winker to
al.,
court.”);
et
see also 6 James C. Moore
satisfy
judgment.
the MAR default
(2d
§ 203.06
ed.
Moore’s Federal Practice
1985) (“[T]o appeal,
non-party
must be
VII.
aggrieved by the
privy to
record and
the
Miller,
judgment.”).
permit
In
we refused
holding
Accordingly,
appeals’
guardian
appeal
a trial court’s
ad litem
judgments against
I
reversing the
C & and
heirship, finding that
the
determination
ap-
affirmed. The court of
aggrieved by
guardian ad litem was not
holding reversing
judgments
peals’
Miller,
431,
144
at
court’s decision.
Colo.
predicated upon
and &
G W
86
appeal
he is contin-
Winker to
here because
the three
be-
partnerships’ judg-
gently liable for the three
substantially
by the
aggrieved
he was
cause
in the three
ments as an indirect
disagree
I
maj. op. at 82.
with
ruling. See
per-
If that
is sufficient to
entities.
interest
reasoning.
majority’s
non-party excep-
appeal
him
under the
mit
view,
non-party
appeal
allowing a
my
In
tion,
him to
interest is also sufficient for
his
exception based on
is a limited
a decision
partner-
appeal
an
to be taken
cause
considerations, and it should not be
equity
ships.
the facts of this case.
expanded to include
appeal
I would not allow Winker
Richter,
This notice was sufficient G & W was served because knowledge is notice and attributed
Winker’s Partnership & W under the
to G Uniform (1986); 7-60-112, § see
Law. also Bromberg Rubstein, Partnerships 4.06 1987)
(3d (general knowledge or ed. single partner if knowledge
exists notified). person
was the majority specif “there is notes that no to & in
ic reference G W claims.” maj. However, op. at 82.
See
asserted sixteen claims for relief all Moreover, majority Id.
defendants. liability G &
misconstrues the of W. G & W partner named as a I, liability contingent and its on pay
failure and C & to
judgments against partner Because a them. fiction, Winker, legal general
ship is W,
partner proper party of &G was a to be Erving Virginia Squires See v.
served. Bas Club, (E.D.N.Y. F.Supp.
ketball (service
1972) general manager corpo on which
ration was the of a
limited was effective service on partnership); Thomson v.
the limited East (S.D.N.Y. Corp., 24
ern Bechtel F.R.D. (service
1959) corporation manager on af corporation
filiated another was effec corporation).
tive service second reasons, respectfully these
For dissent. COPELAND, K. on behalf
Brian similarly
himself and all others Petitioner,
situated, BANK,
MBNA AMERICA
N.A., Respondent.
No. 94SC409. Colorado,
Supreme Court of
En Banc.
Nov.