City of Delta v. Thompson
| Decision Date | 11 December 1975 |
| Docket Number | No. 75--431,75--431 |
| Citation | 548 P.2d 1292,37 Colo.App. 205 |
| Parties | The CITY OF DELTA, a Municipal Corporation, Plaintiff-Appellee, v. Vern O. THOMPSON et al., Defendants, v. Ethel NAVE and James Redwood, Intervenors-Appellants. . II |
| Court | Colorado Court of Appeals |
Nicholas E. Darrow, Delta, for plaintiff-appellee.
Joseph M. Epstein, Steven L. Zimmerman, Denver, for intervenors-appellants.
Ethel Nave and James Redwood (intervenors) appeal from a judgment entered pursuant to C.R.C.P. 54 which denied their motion to intervene of right in a suit pending between the City of Delta and Thompson, et al. We reversed.
The City of Delta initiated an action against Harold's Nursing Home located in Delta and several officials of the State of Colorado. In that action, the city alleged that the housing of persons in the nursing home who have been adjudicated mentally deficient or mentally ill, and the state's transference of such persons to the nursing home, violates the city's zoning ordinances. The intervenors are residents of the nursing home who have been adjudicated mentally deficient. On motion of the intervenors to intervene in the action and to represent the nursing home residents as a class, the trial court permitted representation of the class but denied the right to intervene.
C.R.C.P. 24(a)(2) establishes the three requirements for intervention of right.
The first requirement is 'an interest relating to the property or transaction which is the subject of the action.' In Dillon Co., Inc. v. City of Boulder, 183 Colo. 117, 515 P.2d 627, the court found sufficient interest in the action to allow intervention of right where the intervenors were neighbors of the subject property concerned in the zoning dispute. Here, the intervenors are the actual residents of the property concerned in the zoning dispute and will be removed from the nursing home if the plaintiff is granted its requested relief.
The second requirement is that the 'disposition of the action may as a practical matter impair or impede his ability to protect that interest.' Since the intervenors' ability to protect their interest in their residence will definitely be impaired by an adverse disposition of the action, the second requirement is met.
The third requirement is that the intervenors' interest will not be adequately represented by existing parties. Counsel for the nursing home stated, in the hearing on the motion, that they do not represent the residents and that they may not have standing to raise some of the constitutional arguments advanced by the intervenors. Neither are the interests of the intervenors being represented by the Attorney General, who represents the state officials. Although the Attorney General raises some constitutional arguments on behalf of the residents, his major allegation is that the state officials are not proper parties in the action. Thus, the intervenors are without adequate representation, and meet the third requirement for intervention of right. See Roosevelt v. Beau Monde Co., 152 Colo. 567, 834 P.2d 96.
The rules of intervention are to be liberally construed so that all related controversies may be settled in one action, Senne v. Comley, 110 Colo. 270, 133 P.2d 381, and the intervenors meet all the requirements of C.R.C.P. 24. Hence, they are entitled to intervention of right.
However, the appellee urges that the denial of the motion to intervene should be upheld because the record fails to demonstrate the existence of an attorney-client relationship between the named intervenors and the attorneys who entered an appearance on their behalf. Appellants, in response, argue that this is an assertion of cross-error not properly before this court.
The general rule is that an appellee must cross-appeal in order to have the appellate court consider any alleged error of the trial court prejudicial to the appellee. See Newt Olson Lumber Co. v. School District No. 8, 83 Colo. 272, 263 P. 723. However, since generally the appellate court may only consider on review issues raised in a motion for new trial, See C.R.C.P. 59(f), the prevailing party in the trial court would be required to file a motion for new trial in order to preserve for appellate review by cross-appeal any adverse ruling by the trial court which would become important if the appellate court reverses the judgment. This reading of the rules could result in the incongruous situation of a winning party being forced to file a motion for a new trial in order to insure that he could later file a notice of appeal, with the possibility that his motion for a new trial could be granted. Such an illogical and inefficient result cannot be countenanced by the judicial system.
This result may be avoided by adopting a rule similar to that long established in federal courts. This rule was stated by Justice Brandeis in United States v. American Railway Express Co., 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087:
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City of Lakewood v. Colfax Unlimited Ass'n, Inc.
...did not file a notice of cross appeal, they now seek to appeal this portion of the district court's ruling, see Delta v. Thompson, 37 Colo.App. 205, 548 P.2d 1292 (1975). However, because of our disposition of Lakewood's appeal, we need not consider the procedural or substantive issues rais......
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Blocker Exploration Co. v. Frontier Exploration, Inc., s. 85SC300
...for an appellate court to consider an alleged error of the trial court which prejudiced the appellee. City of Delta v. Thompson, 37 Colo.App. 205, 207, 548 P.2d 1292, 1294 (1975). The United States Supreme Court has described a limitation on this rule, holding that an appellee "may, without......
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...file a request for rehearing in the court of appeals before he files the cross-petition. Williams cites City of Delta v. Thompson, 37 Colo.App. 205, 548 P.2d 1292 (1975), in support of his proposition that a petition for rehearing is not required for a cross-petition. In Thompson, the court......
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