Butler v. Farner

• Decision Date: 19 August 1985
• Docket Number: No. 84SA205,84SA205
• Citation: 704 P.2d 853
• Parties: Gordon D. BUTLER and Mary Elizabeth Butler, Plaintiffs-Appellees, v. Richard FARNER and Goldie E. Farner, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 853

704 P.2d 853

Gordon D. BUTLER and Mary Elizabeth Butler, Plaintiffs-Appellees, v. Richard FARNER and Goldie E. Farner, Defendants-Appellants.

No. 84SA205.

Supreme Court of Colorado,

En Banc.

Aug. 19, 1985.

Edward E. Simon, Jr., Bluestein, Simon & Schulman, Denver, for plaintiffs-appellees.

Patrick Owen, Rotole, Owen, Jaunarajs & Walker, Denver, for defendants-appellants.

DUBOFSKY, Justice.

The defendants, Richard and Goldie Farner, appeal Denver District Court rulings that the Forcible Entry and Detainer (F.E.D.) statute, §§ 13-40-101 to -123, 6 C.R.S. (1973 & 1984 Supp.), permits an accelerated trial setting, that the statute is constitutional as so interpreted, and that the defendants were not entitled to a continuance beyond the accelerated trial date. ¹ We affirm the rulings of the district court.

On May 10, 1983, the plaintiffs, Gordon and Mary Butler, contracted to sell residential property to Goldie Farner for $125,000, and Farner gave the plaintiffs $15,000 earnest money. The contract provided for closing on July 5, 1983. The contract further provided that time was of the essence, and that, should the purchaser default both the sellers and the purchaser were to be released from their obligations under the contract, and the plaintiffs would be entitled to retain Farner's earnest money as liquidated damages.

On July 19, 1983, the plaintiffs filed a complaint in Denver District Court asserting that the defendants had possession of the property that Farner had agreed to purchase, but that Farner had failed to comply with her contractual obligations. The plaintiffs alleged that they had demanded possession of the property in writing, and requested a court order under the F.E.D. statute granting them possession. § 13-40-104(1)(i), 6 C.R.S. (1973). ²

The defendants' answer admitted their possession of the property and receipt of the plaintiffs' written demand for possession, but denied all other allegations of the complaint. In addition, the defendants' five affirmative defenses essentially asserted that (1) the plaintiffs and defendants had entered into a collateral agreement permitting the defendants to retain possession of the property long enough to obtain V.A. financing, and the plaintiffs had breached the agreement by seeking possession before the financing was obtained; and (2) the defendants had acquired an equitable interest in the property entitling them to possession. ³ Finally, the defendants counterclaimed for a decree of specific performance requiring the plaintiffs to perform the alleged contract to permit V.A. financing, an adjudication of the defendants' equity in the property, or return of the earnest money retained by the plaintiffs.

The district court set trial for August 29, 1983. The defendants moved to strike the trial date because neither Richard Farner nor the defendants' counsel would be available. Richard Farner's affidavit, attached to the motion, averred that Farner would be at a meeting in Oklahoma City on the morning of August 29. The secretary for the defendants' counsel provided an affidavit stating that defendants' counsel would be out of town from August 19 until September 6.

On August 26, 1983, the district court held a hearing on the defendants' motion to strike trial setting. The defendants' principal counsel did not appear, and the defendants were represented by a different member of their counsel's law firm. In addition to the contentions in the motion, the defendants' new attorney argued that the F.E.D. statute did not provide for an accelerated trial setting, and that the trial in this matter should have been set on the court's docket in the usual manner. The district court ruled that the F.E.D. statute was intended to provide for summary proceedings to determine possession, and that an accelerated trial date was contemplated under the statute. The court then inquired into the availability of the parties and their counsel on alternative trial dates. Defendants' counsel informed the court that Richard Farner would be available on September 1. Plaintiffs' counsel indicated that, although he had planned to leave for vacation on September 1, he would stay in Denver in order to conduct the trial. Immediately following this exchange, the defendants' counsel reversed himself on Farner's availability, telling the court that Farner would be gone the entire week of August 29 and would not be back until September 5 at the earliest. The district court denied the motion to strike trial setting, and ordered that trial be held on August 29 as originally scheduled.

On August 29, counsel for the parties appeared for trial. The court granted the defendants' motion to dismiss without prejudice all issues raised by their counterclaim. Counsel then agreed that the plaintiffs' offer of proof would substitute for the presentation of evidence on the right to possession. Following the offer of proof, which is not included in the record before us, the district court found that the parties entered into a land sale contract; that closing was set for July 5, 1983, at which time the defendants were required under the contract to tender the full purchase price; that the defendants failed to tender the purchase price on July 5; that the plaintiffs subsequently demanded possession of the premises in writing; and that the plaintiffs accordingly were entitled to possession of the property under section 13-40-104(1)(i).

On appeal, the defendants contend that the F.E.D. statute does not permit an accelerated trial setting. The defendants further argue that if the F.E.D. statute permits an accelerated trial setting, the statute deprives them of due process of law by failing to allow sufficient time for trial preparation. ⁴ Finally, the defendants maintain that the district court abused its discretion in failing to grant a continuance. We reject the defendants' arguments and affirm the rulings of the district court.

I.

The defendants contend that, because the F.E.D. statute does not address the time of trial, it should not be interpreted to permit an accelerated trial date. We disagree.

We previously determined that the F.E.D. statute is "designed to provide landlords with an expeditious method of gaining possession of their premises following a termination of a tenancy or a breach of a lease." Francam Building Corp. v. Fail, 646 P.2d 345, 348 (Colo.1982). Among the benefits of the F.E.D. statute is the "avoidance of the expense and delay incident to the more cumbersome action of ejectment formerly employed at common law...." Id. at 350 (Lohr, J., dissenting).

The structure of the F.E.D. statute evinces a legislative intent to accelerate trial settings in order to provide an expeditious remedy. The defendant in an F.E.D. action has five to ten days to appear and answer a complaint following the issuance of a summons. §§ 13-40-111 to -113, 6 C.R.S. (1973 & 1984 Supp.), ⁵ instead of the usual twenty days under C.R.C.P. 12(a). Under section 13-40-114, 6 C.R.S. (1973), ⁶ if either party requests a delay in trial for more than five days, the court may require the party to post bond in an amount sufficient to cover damages to the other party resulting from the delay. Thus, the General Assembly recognized that even a brief delay in a trial for possession may damage the party seeking possession. Setting trial as expeditiously as possible following the defendant's answer is consistent with this statutory scheme.

II.

The defendants next assert that, if the F.E.D. statute permits an accelerated trial date, the statute violates constitutional guarantees of due process ⁷ because (1) an accelerated trial date in a case involving a vendee in possession of the premises under section 13-40-104(1)(i) does not provide sufficient time to prepare for the complex issues that may be raised, and (2) the statute does not require the district court to allow the defendants to post bond and obtain a continuance as of right. ⁸ We reject these arguments.

In Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), the United States Supreme Court upheld the Oregon Forcible Entry and Wrongful Detainer statute against an identical due process challenge. The Oregon statute applied to landlord-tenant disputes and provided for trial no later than six days following service of the complaint, unless the court granted a continuance conditioned upon posting of a bond by the defendant. The Court held that the expedited trial provisions did not violate due process because extensive trial preparation is not required in the majority of F.E.D. cases. 405 U.S. at 65, 92 S.Ct. at 870. In most cases, the Court explained, the issues concerning the landlord's right to possession are simple, and the tenant will have as much access as the landlord to relevant facts. Id. Moreover, the Court noted, in cases where more complex issues arise, the tenant may obtain a continuance upon posting a security bond. Id.

Unlike the Oregon statute at issue in Lindsey, the Colorado F.E.D. statute permits unlawful detainer actions based upon the default of a purchaser in land sale contracts. § 13-40-104(1)(i). The defendants maintain that the issues in such actions are more complex than the issues in landlord-tenant actions. However, we note that, as in landlord-tenant disputes, the facts involved in land sale contract disputes will be equally available to both purchaser and vendor. More importantly, the Colorado F.E.D. statute, like its Oregon counterpart, permits continuances in appropriate cases if the defendant posts a bond. § 13-40-114. The court may grant a continuance in cases where the defendant can show that the issues are so complex as to require extensive trial preparation. Because the F.E.D. statute provides a mechanism for ensuring that defendants will have an opportunity to fully present available defenses, the statute on its face does not violate due process. See Deal v. Municipal Court, 157 Cal.App.3d 991, 204...