City of Englewood v. Reffel

• Decision Date: 21 May 1974
• Docket Number: No. 73--179,73--179
• Citation: 522 P.2d 1241,34 Colo.App. 103
• Parties: CITY OF ENGLEWOOD, Colorado, a municipal corporation, Petitioner-Appellee, v. John W. REFFEL et al., Respondents-Appellants. . II
• Court: Colorado Court of Appeals

Page 1241

522 P.2d 1241

34 Colo.App. 103

CITY OF ENGLEWOOD, Colorado, a municipal corporation Petitioner-Appellee, v. John W. REFFEL et al., Respondents-Appellants.

No. 73--179.

Colorado Court of Appeals, Div. II.

May 21, 1974.

Bernard V. Berardini, Englewood, for petitioner-appellee.

Hoffman, Goldstein, Armour & Lonnquist, P.C., Abe Hoffman, Alan A. Armour, Denver, for respondents-appellants.

ENOCH, Judge.

The issue raised in this appeal is whether a landowner, who has withdrawn monies deposited by a condemning authority pursuant to an order for immediate possession, is required to refund the amount by which the withdrawal exceeds the final condemnation award.

In 1966 the City of Englewood, appellee, instituted condemnation proceedings against appellants, the owners of two parcels of land which were necessary for the improvement of certain public streets. The City filed a motion for immediate possession pursuant to C.R.S.1963, 50--1--6(6)(a), which was granted by the trial court on the condition that the City deposit a total of $10,840 for the two parcels. This amount was promptly paid into the registry. Appellants exercised their right under the statute to withdraw two-thirds, or approximately $7,200 of the money deposited pending final resolution of the condemnation proceedings.

The initial jury trial resulted in a sizeable judgment in favor of appellants. The City appealed, and the Supreme Court reversed the judgment and remanded the case for a new trial. Englewood v. Reffel, 173 Colo. 203, 477 P.2d 361. At the second trial the City was permitted to introduce evidence that appellants' grantors had reserved the parcels in question for street purposes. The jury's verdict assessed the value of the property at $200, and judgment was entered thereon. Neither party appealed the second judgment. No satisfaction of judgment appears in the record.

Nine months after judgment was entered, the City filed a 'Petition for Order Directing Respondents to Remit Overpayment.' The petition stated that the landowners had withdrawn approximately $7,200 from deposits made by the City, that the judgment for $200 had not been appealed, and that the City was entitled to a refund of $7,000, the amount by which the withdrawals exceed the judgment. After a hearing, the trial court entered an order requiring the landowners to repay $7,000 into the registry of the court.

The owners have appealed from this order, alleging: (1) The court had no jurisdiction to enter substantive rulings after final judgment had been entered; (2) the City's petition was actually a motion to amend the judgment and therefore was not timely; (3) C.R.S.1963, 50--1--6(6), does not require the owner to refund monies withdrawn.

I.

A threshold question is raised by the City as to whether an appeal will lie to this order. The City contends that the order entered by the trial court is a collateral order, pursuant to and consistent with the final judgment entered on the merits, and therefore is not appealable. While we agree with the City's characterization of the order, we hold that, under the circumstances of this case, it is subject to review.

We recently held that an appeal may be taken from a post-judgment order fixing the dollar amount of costs, where the appeal challenges the power of the court to award particular items as costs. Janicek v. Hinnen, Colo.App., 522 P.2d 113. The order entered in the present case is closely analogous to an order assessing costs, and is appealable for similar reasons. The effect of the court's order is to impose on appellants an affirmative obligation to pay $7,000. In this appeal appellants have challenged the power of the court, both jurisdictionally and statutorily, to require them to refund this amount. Although the issue of a refund could have been raised prior to the entry of judgment, it was not litigated until the judgment had become final. Another important factor militating in favor of appealability is that the issue of a refund involves questions of law unrelated to the property valuation issue determined at trial.

II.

Appellants contend that the order requiring a refund was, in effect, a modification of the judgment entered on the second jury verdict. Therefore the City's petition should have been filed within 10 days of the judgment, See C.R.C.P. 59(e), and since a timely motion to amend was not filed, the court lacked jurisdiction to enlarge the judgment after it was entered.

We disagree with appellants' basic contention that the refund order altered and enlarged the final judgment. The order did not change in any respect the rights of the parties as determined by the jury. Rather, it was an attempt by the trial court to give effect to the judgment. The jury found that appellants were entitled to a total of $200 as just compensation for the condemned parcels. Appellants had withdrawn a much larger sum from funds the City had deposited in court. Though not apparent on its face, the judgment was a determination that appellants had received more money from the City than they were entitled to retain.

Appellants cite many cases which hold that a trial court has no power to correct an erroneous judgment, except as to clerical mistakes, after the time for review has passed. See e.g., National Farmers Union Life Insurance Co. v. Norwood, 147 Colo. 283, 363 P.2d 681; McMullin v. Denver, 133 Colo. 297, 294 P.2d 918. However, since the trial court's order sought to enforce, rather than to modify, the terms of the judgment, none of these cases is apposite to the issue at hand. Every court having jurisdiction to render a particular judgment has inherent power to enforce it. See Porto Rico v. Castillo, 227 U.S. 270, 33 S.Ct....