Chavez v. Chavez

• Decision Date: 16 April 2020
• Docket Number: Court of Appeals No. 19CA1458
• Citation: 465 P.3d 133
• Parties: In the Interest of Marie M. CHAVEZ and Gilbert M. Chavez, Appellant and Cross-Appellee, v. Teresa CHAVEZ, Conservator, Appellee and Cross-Appellant.
• Court: Colorado Court of Appeals

465 P.3d 133

In the Interest of Marie M. CHAVEZandGilbert M. Chavez, Appellant and Cross-Appellee,

v.Teresa CHAVEZ, Conservator, Appellee and Cross-Appellant.

Court of Appeals No. 19CA1458

Colorado Court of Appeals, Division A.

Announced April 16, 2020

Gill & Ledbetter, LLP, Anne Whalen Gill, Castle Rock, Colorado, for Appellant and Cross-Appellee

Wade Ash Woods Hill & Farley, P.C., Jody J. Pilmer, Denver, Colorado, for Appellee and Cross-Appellant

J. Jones, Welling, and Grove, JJ.

PER CURIAM

¶ 1 In this probate matter, counsel for appellant Gilbert M. Chavez (son) filed a notice of appeal on behalf of son with a "motion to determine jurisdiction." We conclude that the appeal is clearly premature and take this opportunity to clarify the court's procedure for reviewing motions and screening appeals for jurisdictional defects. We also disapprove of counsel's use of a "motion to determine jurisdiction," as it improperly shifts counsel's obligation to ascertain finality to this court while seeking what ultimately is an advisory opinion. Therefore, we dismiss the appeal and cross-appeal without prejudice for lack of a final order.

I. Procedural Background

¶ 2 The underlying probate matter began in March 2018 when Teresa Chavez (daughter) filed a petition for appointment of a conservator for Marie M. Chavez (mother). In the petition, daughter alleged that son had, without authority, quitclaimed mother's home to himself and his wife for no consideration. She also alleged that son had added himself to multiple bank accounts owned by mother and then transferred large sums from those accounts to bank accounts controlled solely by son and for his individual benefit.

¶ 3 The district court appointed daughter as conservator for mother in August 2018, and on September 14, 2018, daughter filed a petition against son claiming, in pertinent part, breach of fiduciary duty, civil theft, unjust enrichment, and surcharge.

¶ 4 In February 2019, the court held a five-day jury trial on the petition, and the jury returned verdicts against son for breach of fiduciary duty, civil theft, and unjust enrichment.

¶ 5 On April 1, 2019, the district court entered an "order regarding the jury verdicts of February 15, 2019 and other matters" in which the court addressed the claims reserved for the court after the jury trial. Of note, that order states as follows:

[Daughter] seeks a surcharge against [son] for any damage or loss to [mother's] estate pursuant to § 15-10-504(2), C.R.S. [Daughter] intends to submit a Bill of Costs which will also include an affidavit of attorney's fees. The Court will review the submissions upon filing.

....

[Daughter] seeks the damage determination rendered by the jury regarding the civil theft claim be trebled and that the estate receive an award of its attorney's fees and costs. [Daughter] believes that the $70,901.17 paid by [son] prior to the beginning of trial be recognized as an offset.

The $70,901.17 is recognized as an offset. As this amount was paid prior to trial it does not negate the finding of theft but it results in a complete offset and the resulting judgment is zero. There is nothing to treble. The Court will award attorney's fees as provided by statute and the Court will await the submission of the affidavit of attorney's fees.

¶ 6 On August 6, 2019, counsel for son filed a notice of appeal on his behalf, along with a "motion to determine jurisdiction" with this court.¹ In the section of the notice of appeal where counsel is to indicate whether there is a final judgment, counsel writes, "There is a question whether the judgment is final. There are issues as to attorney fees under the civil theft statute and as to prejudgment interest." The accompanying motion states, in its entirety, as follows:

Gilbert Chavez, through undersigned counsel, requests this Court to determine its jurisdiction over the appeal he filed August [6], 2019. As grounds, he states:

1. The notice of appeal identified an April 1, 2019 order on jury verdicts and a June 17, 2019 Order on post-trial motions as the orders challenged in the appeal.

2. In the notice of appeal, Appellant indicated there is question whether these orders are final for purposes of appeal.

3. The issue of prejudgment interest has not been decided. Pursuant to Grand County Custom Homebuilding, LLC v. Bell , 148 P.3d 398, 401 (Colo. App. 2006), prejudgment interest is a component of damages and the amount of prejudgment interest must be determined for the judgment to be final. See also Hall v. American Standard Ins. Co. of [Wis. ], 2012 COA 201, 292 P.3d 1196 ; Andrews v. Picard , 199 P[ ].3d 6 (Colo. App. 2007).

4. Counsel understands that there is also an issue of attorney fees outstanding. If the fees are part of damages, they[ ] too must be determined for the judgment to be final.

WHEREFORE Appellant requests this Court to determine whether the challenged orders are final and ripe for appeal.

¶ 7 Counsel for daughter filed a notice of cross-appeal on August 19, 2019. It states:

[Daughter] affirmatively asserts that in addition to not yet having ruled upon the issues of civil theft damages in the nature of attorney fees and costs and the issue of pre and post judgment interest as damages, the trial court has not yet ruled on the issue of attorney fees and costs in the nature of surcharge damages as permitted by C.R.S. § 15-10-504(2) and specifically pled by [daughter].

¶ 8 After review by a member of this court's staff, the motion to determine jurisdiction was presented to this division for a ruling. We deferred ruling and ordered counsel to address why the court should not award attorney fees and costs related to the premature notice of appeal against her individually based on her affirmative statement that prejudgment interest had yet to be calculated to a sum certain, with citation to uniform authority from this court that such a deficiency defeats finality.²

¶ 9 Counsel responded, arguing as follows:

• "The issue of whether there are orders ripe for appeal is less clear than the November 13, 2019 order suggests."

• "[F]ollowing Scott v. Scott , 136 P.3d 892 (Colo. 2006), it has been challenging to determine which orders in probate proceedings trigger the time to appeal."

• "Counsel has advanced legal argument to support her request for this Court to determine jurisdiction, based on the actions in the trial court which suggest finality and ripeness for appeal. She complied with her duty under Colo. R. P. 1.3 in promptly raising a threshold question whether this matter is ripe for appeal. Raising the question is not frivolous under Colo. R. P. 3.1 as there are indications in the record that the trial court and the parties in the trial court were acting as if there was a final judgment."

• "Counsel has advanced a rational argument and relied on this Court's historical approach to determining jurisdiction as a threshold matter. SeeWestern United Realty, Inc. v. Isaacs , 679 P.2d 1063 (Colo. 1984)."

• "If counsel's actions improperly instigated or prolonged litigation, this is a change of policy for this Court."

¶ 10 We now make the order to show cause absolute and dismiss the appeal without prejudice for lack of a final judgment.

II. Motions Practice in the Court of Appeals

¶ 11 Motions practice is quite limited in the appellate context. C.A.R. 27 covers the filing and resolution of motions in this court. See C.A.R. 27(a)(2)(A) ("A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it."); C.A.R. 27(b) ("The court may act on a stipulated motion signed by all parties or a motion for a procedural order, including a motion under Rule 26(b), at any time without awaiting a response."); C.A.R. 27(c) ("[A] single ... judge may act alone on non-dispositive motions and on voluntary or uncontested dispositive motions. ... The court or a division of the court may review the action of a single ... judge.").

¶ 12 When a party to an appeal files a motion, most often a staff attorney reviews the motion and then it is either ruled on or presented to one or three judges for resolution. ³

The three judge panel determining motions rotates monthly and is generally referred to as the "motions division." James S. Casebolt, Procedures and Policies of the Colorado Court of Appeals , 24 Colo. Law. 2105, 2105 (1995) ; see also Colorado Appellate Handbook § 11 (Hon. Alan M. Loeb ed., 2017 ed.). In contrast, the division considering the merits of an appeal is colloquially called the "merits division." See In re Marriage of January , 2019 COA 87, ¶ 9, 446 P.3d 954.

¶ 13 Because the court of appeals is a divisional court, § 13-4-106(1), C.R.S. 2019, "all divisions function independently from each other .... Each independent panel decides its cases in light of its own interpretation of binding and persuasive authority." Casebolt, 24 Colo. Law. at 2106. Accordingly, while a division may defer to the determination of another division, divisions are not bound by the decisions of other divisions — including a motions division. Allison v. Engel , 2017 COA 43, ¶ 22, 395 P.3d 1217 (merits division is not bound by a motions division's determination of jurisdiction); People in Interest of A.V. , 2012 COA 210, ¶ 11 n.1, 297 P.3d 1019 ("One division is not bound by the holding of another division.").

¶ 14 Meanwhile, all civil cases are screened by court staff for jurisdictional defects. This screening is independent of the presentation of any motions and is part of the court's obligation, discussed in Part III below, to ensure that it has jurisdiction over an appeal. When there is a question regarding the court's jurisdiction raised by court staff, the court will issue an order to show cause directing the appellant or the parties to address the court's concerns. Responses are routinely presented to a motions division for resolution. In general, a motions division will either (1) discharge the show cause order; (2) dismiss the appeal with or...