Dews v. District Court In and For City and County of Denver

• Decision Date: 26 July 1982
• Docket Number: No. 82SA68,82SA68
• Citation: 648 P.2d 662
• Parties: John William DEWS, Petitioner, v. DISTRICT COURT In and For the CITY AND COUNTY OF DENVER, State of Colorado, andthe Honorable Judge John Brooks, Jr., a Judge thereof, Respondent.
• Court: Colorado Supreme Court

Page 662

648 P.2d 662

John William DEWS, Petitioner, v.DISTRICT COURT In and For the CITY AND COUNTY OF DENVERState of Colorado, andthe Honorable Judge John Brooks, Jr., a Judge thereof, Respondent.

No. 82SA68.

Supreme Court of Colorado, En Banc.

July 26, 1982.

Donald P. MacDonald, Rhett K. Dacus, Hornbein, MacDonald, Fattor & Buckley, P.C., Denver, for petitioner, John William Dews.

Jack W. Berryhill, Roth & Brega, P.C., Denver, for petitioner, Julianna Dews.

Bruce Campbell, Davis, Graham & Stubbs, P.C., Denver, for respondent, Colorado Nat. Bank.

LEE, Justice.

John William Dewspetitions this court for relief in the nature of prohibition and mandamus pursuant to C.A.R. 21.We issued our rule to show cause and now make the rule absolute.

Petitioner and his former wife, Julianna Dews, were the owners of real property in Vail, Colorado which was encumbered by a deed of trust in favor of the Colorado National Bank of Denver (bank).The bank sought to foreclose the deed of trust through the public trustee for an alleged default in payment of the indebtedness secured thereby.Proceedings were commenced under C.R.C.P. 120 for an order authorizing a sale by the public trustee under the power of sale contained in the deed of trust.The order was entered by the court over the objection of the petitioner, who contended that the notice provisions of Rule 120 had not been complied with and that the court improperly limited the scope of the Rule 120 hearing.The petitioner seeks to have this court prohibit the respondentcourt from proceeding further in the foreclosure; direct that the order authorizing sale be vacated; and require that a new notice be issued and a new hearing be granted petitioner under Rule 120 in accordance with the requirements thereof.

The issues for our consideration are whether the notice provisions of C.R.C.P. 120 were complied with by the clerk of the respondentcourt, and whether the trial court erred in limiting the scope of the Rule 120 hearing.

I.

The evidence established that on January 8, 1982 the clerk of the respondentcourt prepared the notice of the Rule 120 proceeding, which was set for hearing on January 25, 1982.¹The clerk testified that she prepared her certificate of mailing the same day the notice was mailed, January 8.She described the routine office procedure of placing notices to be mailed into a collecting tray which was then carried to the receiving station for the United States Post Office either by a mail clerk or the office supervisor of the civil division of the court.She testified that she had followed standard procedures by placing the notices in the mail tray, but that she had no personal knowledge that the notices in question here were deposited into the U.S. Mail on that date.January 8 was a Friday, and there was evidence that the certificate the clerk prepared was dated and stamped on January 8, at 4:21 p.m., after the last regular mail pick-up by the mail clerk on that date.

Other evidence disclosed that the notices were postmarked by the United States Post Office on January 11, 1982, the following Monday.The mailed notices were received by the petitioner in Denver on January 14 and by Julianna Dews at her home in Eagle County on Friday, January 15.The notice advised that objections to the motion must be filed by Monday, January 18, one week prior to the hearing set for January 25.²

The petitioner and Julianna Dews filed a response on January 18 in which they objected to the notice they received, claiming that the court clerk had failed to comply with the express language of Rule 120 that notice be mailed at least fifteen days prior to the hearing date.

The petitioner contends that the procedure followed in the district court was insufficient to ensure that the notices were mailed fifteen days in advance of the hearing.We agree.Had the notices been placed in the United States mail on January 8th, the requirement of the rule would have been satisfied.However, if the notices had in fact been mailed on January 11-only fourteen days prior to the scheduled hearing-notice of the proceedings would have been ineffective.

Although the rule states that "mailing and posting shall be evidenced by the certificate of the clerk," the certificate is not conclusive proof of compliance with the rule but only creates a presumption which may be rebutted with evidence of non-compliance.

The court found that the evidence supported the clerk's certificate of mailing that the notices were in fact mailed on January 8th.In our view, the evidence, which is essentially undisputed, does not support this finding.The evidence tended to establish that the clerk prepared the certificates of mailing prior to the mailing without having actual knowledge that the notices in fact had been placed in the mail on the 8th.The mailing clerk did not testify.The supervisor of the civil division testified that either the mailing clerk or he(the supervisor) mailed the notices on January 8, although he had no specific knowledge as to who did the mailing on that date.It is not disputed that the notices were in fact tardily placed in the mail pickup tray by the mailing clerk after the last daily mail pickup.Of significance is the January 11th postmark which is three days after the date the notices were purportedly deposited.

The evidence indicated, according to the post office procedures then in effect, that had the notices been placed in the mail before 3:00 p. m. on January 8th, the time of the last daily pickup by the post office, they would likely have been postmarked January 8, 1982.Had they been mailed after 3:00 p. m. on January 8th, they would probably have been postmarked the...