Aldrich v. District Court of Eighteenth Judicial Dist. In and For Arapahoe County

• Decision Date: 10 March 1986
• Docket Number: No. 85SA291,85SA291
• Citation: 714 P.2d 1321
• Parties: Lauren E. ALDRICH and J. Elaine Aldrich, Petitioners, v. The DISTRICT COURT OF the EIGHTEENTH JUDICIAL DISTRICT, In and For the COUNTY OF ARAPAHOE; and the Honorable Joyce S. Steinhardt, Respondents.
• Court: Colorado Supreme Court

Page 1321

714 P.2d 1321

Lauren E. ALDRICH and J. Elaine Aldrich, Petitioners, v. The DISTRICT COURT OF the EIGHTEENTH JUDICIAL DISTRICT, In and For the COUNTY OF ARAPAHOE; and the Honorable Joyce S. Steinhardt, Respondents.

No. 85SA291.

Supreme Court of Colorado En Banc.

March 10, 1986.

Gorsuch, Kirgis, Campbell, Walker & Grover, Malcolm M. Murray, Denver, for petitioners.

Mehaffy, Rider, Windholz & Wilson, James A. Windholz, Boulder, for respondents.

ERICKSON, Justice.

This original proceeding arises out of an eminent domain proceeding in which the Littleton Riverfront Authority acquired title to property owned by the petitioners, Lauren and Elaine Aldrich. Petitioners contend that the respondent district court abused its discretion in granting Littleton's motion for a new trial. We issued a rule to show cause and now make the rule absolute.

I.

The Littleton Riverfront Authority (Littleton) initiated eminent domain proceedings in the respondent district court to acquire property owned by the petitioners. The property included a motorcycle sales and repair business which petitioners had operated for many years. The district court appointed a commission to determine the preliminary compensation to be awarded petitioners for their property. ¹ The commission awarded petitioners $475,000, and Littleton deposited that amount with the court pursuant to section 38-7-103(2), 16A C.R.S. (1982). The district court entered an order vesting title in Littleton and authorizing Littleton to take possession of the property.

Thereafter, the district court appointed a new commission to determine the final award for petitioners' property. After a three-day hearing, the commission returned a certificate of ascertainment and assessment setting the fair market value of the property at $623,700. The district court approved the certificate of ascertainment and assessment and entered judgment for petitioners in the amount of $623,700.

Littleton filed a motion for a new trial alleging that the commissioners relied on improper considerations and failed to follow the district court's instructions in determining the value of petitioners' property. In support of the motion, Littleton submitted an affidavit by its attorney, James Windholz. Windholz stated that he spoke with each of the commissioners following the hearing and learned that they failed to deduct depreciation from the cost of the building on the property. Windholz also said that the commissioners considered the years of hard work the petitioners had devoted to their business. According to Windholz, the commissioners were also concerned that petitioners may not have received any interest or payment from Littleton between the time Littleton obtained possession of the property and the date of the final award. Finally, Windholz stated that the commissioners viewed properties comparable to the petitioners' property, contrary to the court's instructions.

Petitioners moved to strike Windholz' affidavit and to deny the motion for a new trial. Petitioners asserted that the affidavit contained only hearsay and was therefore insufficient to support the motion for a new trial. A hearing on the motion by telephone conference was set and Littleton subpoenaed the commissioners, who were present to testify on the date of the hearing. However, the hearing was never held, the district court electing to proceed on the basis of the pleadings. The court ruled that the Windholz' affidavit was a sufficient basis for finding the award excessive and granted the motion for a new trial. Petitioners then instituted this original proceeding seeking a writ of prohibition directing the district court to strike Windholz' affidavit and to deny Littleton's motion for a new trial.

II.

Petitioners challenge the sufficiency of Windholz' affidavit as a basis for granting Littleton's motion for a new trial on two grounds. First, petitioners assert that the affidavit is based entirely on hearsay and is therefore insufficient to support a motion for a new trial under C.R.C.P. 59. Second, petitioners contend that the affidavit deals exclusively with the thought processes of the commissioners in determining the value of petitioners' property. Such evidence, petitioners maintain, may not be relied upon to impeach the commission's certificate of ascertainment and assessment. In our view, the affidavit was an insufficient basis for the district court's decision to grant a new trial.

A.

The Colorado Rules of Civil Procedure are applicable to eminent domain proceedings. Stalford v. Board of County Commissioners, 128 Colo. 441, 263 P.2d 436 (1953). Under C.R.C.P. 59(d), a motion for a new trial based on irregularity in the proceedings, misconduct of the jury, accident or surprise, or newly discovered evidence must be supported by an affidavit. Here, the motion for a new trial alleged irregularities in the commission's investigation and cited misconduct by the commissioners. Therefore, Littleton was required to file an affidavit in support of its motion. The question is whether the affidavit submitted by Littleton--signed by its attorney and containing only hearsay--was adequate for purposes of rule 59(d).

Our resolution of this issue is predicated upon the purpose of a supporting affidavit under C.R.C.P. 59. In Cawthra v. City of Greeley, 154 Colo. 483, 486, 391 P.2d 876, 877 (1964), we said:

It is a most salutary rule to require a supporting affidavit where there is an accusation of misconduct on the part of a juror in a motion for a new trial, the movant thereby proving his good faith and, by particularizing, demonstrating that his allegation of juror misconduct--a most serious charge--is based on knowledge, not suspicion or mere hope.

See also People's Natural Gas v. Public Utilities Commission, 626 P.2d 159 (Colo.1981). In Cawthra, the motion for a new trial was not supported by an affidavit, and we held that the motion should have been summarily denied.

We elaborated on the requirement of a supporting affidavit in Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201 (1965). There, the trial court refused to consider the affidavit of the movant's attorney concerning discussions between the attorney and several jurors after the conclusion of the trial. We affirmed the trial court, holding that the requirement of a supporting affidavit

presupposes that the affidavit be from one having firsthand information rather than from a person possessing only hearsay. Such is not true in the instant case. There is no affidavit in this record of any juror who served in the trial of this matter, nor is there any claim that these jurors refused to give such. Rather we have only the affidavit of losing counsel, and the affidavit itself is largely hearsay and chock-full of conclusions.

Id. at 401, 400 P.2d at 204. Petitioners contend that under Hansen, the district court should have granted their motion to strike the affidavit of Littleton's attorney. We disagree.

Hansen is distinguishable from the facts of this case. Although the affidavit of Littleton's attorney was based on his conversations with the commissioners, the affidavit contains numerous factual allegations and is not conclusory in nature. The affidavit satisfies the policy of Cawthra by detailing the information acquired by Littleton's attorney in conversations with the commissioners. The nature of the information is such that Littleton acted upon a basis of knowledge, not merely suspicion or hope, in filing its motion for a new trial. Furthermore, respondents have alleged that two of the commissioners refused to execute affidavits and the third could not be contacted. By contrast, in Hansen there was no claim that the jurors refused to give affidavits. Accordingly, we hold that the district court did not abuse its discretion in refusing to strike the affidavit of Littleton's attorney which supported the motion for a new trial. However, we disagree with the district court that the affidavit was a sufficient basis for granting Littleton's motion for a new trial.

B.

The verdict of a jury is not subject to impeachment on grounds which require the court to inquire into the jury's mental processes in reaching its verdict. Santilli v. Pueblo, 184 Colo. 432, 521 P.2d 170 (1974); Kading v. Kading, 683 P.2d 373 (Colo.App.1984). The rationale underlying the rule is to protect the integrity and finality of the jury's verdict and to prevent harassment or coercion of the jurors after they have announced their verdict. Santilli, 184 Colo. at 432, 521 P.2d at 170. The presumption against impeachment of verdicts, deeply rooted in the common law, is embodied in rule 606(b) of the Colorado Rules of Evidence. CRE 606(b) provides:

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's...