Flickinger v. Ninth Dist. Production Credit Ass'n of Wichita, Kan.

Citation824 P.2d 19
Decision Date06 June 1991
Docket NumberNo. 89CA2161,89CA2161
PartiesDonald E. FLICKINGER, Plaintiff-Appellant, v. NINTH DISTRICT PRODUCTION CREDIT ASSOCIATION OF WICHITA, KANSAS, a federally chartered corporation; Victor T. Roushar, individually and as a partner of Woodrow, Roushar & Carey, a partnership; Woodrow, Roushar & Carey, a partnership; and Fireman's Fund Insurance Companies, a stock insurance company, Defendants-Appellees. . I
CourtCourt of Appeals of Colorado

Ahrens & Alexander, Marjorie M. Kesl, John F. Arens, Richard P. Alexander, Fayetteville, Ark., John A. Meininger, Denver, for plaintiff-appellant.

Holland & Hart, Steven G. Barringer, Charles M. Johnson, Jane L. Montgomery, Denver, John J. Mitchel, Montrose, for defendants-appellees Ninth Dist. Production Credit Ass'n of Wichita, Kan., Victor T. Roushar, and Woodrow, Roushar & Carey.

Long & Jaudon, P.C., Michael T. McConnell, Denver, for defendant-appellee Fireman's Fund Ins. Companies.

Opinion by Judge CRISWELL.

Plaintiff, Donald Flickinger, appeals from the summary judgment dismissing his claims against all of the defendants. He argues that the trial court erred in concluding that certain claims he asserted were barred by the doctrines of res judicata and collateral estoppel. He also argues that his claims against Fireman's Fund Insurance Co. (Fireman's Fund) were not barred by the expiration of the time limits for assertion of claims contained within the pertinent insurance policy, as the trial court determined. We affirm the judgment dismissing plaintiff's claims against all defendants, except his tort claim against Fireman's Fund; we reverse the judgment dismissing this latter claim.

The present controversy arises from a replevin action commenced in the Montrose County District Court (the replevin court) by the predecessor in interest to the defendant, Ninth District Production Credit Association of Wichita (Association), in August 1985. That action was commenced to foreclose upon certain real and personal property which had been pledged as security for the repayment of loans made to plaintiff's father (the father) by the Association's predecessor. While no claim for relief was asserted against plaintiff in that action, he was joined as a defendant so that the secured party's interest in the real and personal property of the father, including his cattle, could be adjudged to be superior to any interest that plaintiff might claim in this property.

When the Association began to take possession of the father's cattle pursuant to the replevin court's order, it was discovered that some of plaintiff's livestock, including some young, unbranded calves, were mixed in with the father's herd. Consequently, the Association made an ex parte application to the court for emergency relief, and the replevin court entered an order authorizing the Association to take possession of all the cattle, including plaintiff's cattle.

This order also required that, after plaintiff's cattle were permitted to "mother up" (i.e., after mother cows and calves found each other and grouped together), the Association would return all of plaintiff's cattle to him. It also provided that, if any party suffered damage from the Association's temporary possession of the cattle, a written claim therefor was to be filed with the replevin court on or before June 1, 1986. Thereafter, any such claim would be heard by that court "in the same manner as any tort or contract claim."

The Association then took possession of all the cattle, including some cattle belonging to plaintiff. At least some of plaintiff's cattle were subsequently returned as required by the court order; however, plaintiff claims that a number of the cattle seized were never returned and that some cattle were returned in a weakened condition.

Although plaintiff was made aware, almost immediately, of the entry of the replevin court's order and of its contents, he took no action in the replevin court (where he had been made a party) to challenge its validity. Instead, on May 1, 1986, plaintiff instituted an action against the Association and the Sheriff of Saguache County, who had executed the replevin court's order of replevy, in the Saguache County District Court (Saguache court).

Plaintiff's complaint in the Saguache court asserted that the replevin court had "no jurisdiction whatsoever over the property or things of the Plaintiff." However, the Saguache court concluded that, because plaintiff was a party to the replevin action and that court had already asserted its jurisdiction over any claim to be asserted by plaintiff, the Saguache court lacked jurisdiction. That court, therefore, dismissed plaintiff's complaint, and he did not appeal from that judgment of dismissal.

Before June 1, 1986, the date set by the replevin court therefor, plaintiff appeared in that court and obtained a 30-day extension of time within which to file a claim. However, plaintiff failed to file any claim within this revised deadline.

More than one year later, plaintiff instituted suit against the Association and other defendants, including the replevin court judge, in the United States District Court for the District of Colorado. Plaintiff's complaint in the federal court asserted that the replevin court had been without jurisdiction to enter the emergency order and that its order constituted a denial of his rights to procedural due process under the Fifth and Fourteenth Amendments. Therefore, he sought to state a claim against the replevin court judge under 42 U.S.C. § 1983 (1982). In addition, he sought to assert various state law claims against the private defendants.

The federal district court first refused to assert its pendent jurisdiction over plaintiff's state law claims. Later, the court dismissed the federal claims against the replevin court judge because of his absolute judicial immunity under 42 U.S.C. § 1983. The United States Court of Appeals for the Tenth Circuit affirmed this latter order.

While this federal litigation was still pending, plaintiff filed a second complaint with the Saguache court, which was based on the same facts as was his previous complaint in that court. The Saguache court again dismissed his claims, concluding for a second time that the replevin court had exclusive jurisdiction over the subject matter of plaintiff's claims. Again, plaintiff did not appeal from this second judgment of dismissal.

In November 1988--some 28 months after the date set by the replevin court for the filing of claims arising out of the seizure by the Association of plaintiff's cattle--plaintiff filed a pleading with the replevin court entitled, "Supplemental Counterclaim, Third-Party Complaint, and Claim for Jury Demand." By this date, however, the claims of the other parties to that litigation had already been finally resolved. Hence, the replevin court directed that plaintiff's pleading be stricken, relying on the deadline set by the emergency order entered by it and on plaintiff's alleged failure to comply with the provisions of C.R.C.P. 15(d) (which regulates the filing of supplemental pleadings). Plaintiff did not appeal from this order.

Finally, on March 9, 1989, plaintiff instituted this action in the replevin court, in which he joined the present defendants. All the claims asserted against the Association and the individual defendants were based upon the events surrounding the original replevin action and the Association's action in taking possession of plaintiff's cattle. Thus, they were grounded on the same set of factual circumstances as were the claims asserted in the two complaints filed with the Saguache court, the supplemental pleading filed with the replevin court, and the complaint filed with the federal district court.

Plaintiff also asserted two claims against Fireman's Fund. The first claim was based upon a policy of insurance protecting plaintiff against theft, while the second asserted a tort claim of a bad faith refusal to consider this claim under the policy and sought punitive damages.


Plaintiff first contends that the trial court erred in ruling that his claims against the Association and the individual defendants were barred by the related doctrines of res judicata and collateral estoppel. We disagree.

The trial court in this case concluded that, because no motion for reconsideration was filed with the replevin court and no appeal was taken from the emergency order entered by that court, the emergency order became the "law of the case" in the replevin action. In addition, that court concluded that the determinations of the Saguache court in ruling on the subsequent complaints filed with that court, as well as the judgment of the replevin court striking plaintiff's supplemental pleading, collaterally estopped plaintiff from asserting the present claims against these defendants. Although we differ somewhat in our reasons, we agree with the result reached by the trial court.

Plaintiff was named as a defendant in the original replevin action and was served with process by the Association. Further, as evidenced by the pleadings filed by him with the replevin court and with the Saguache court, plaintiff had actual notice of the contents of the emergency order shortly after it was entered. Thus, the replevin court had personal jurisdiction over plaintiff. See Continental Trust Co. v. Patterson, 26 Colo.App. 186, 142 P. 422 (1914).

The rule of procedure that governs replevin actions permits a third party, who claims some interest in property seized by the sheriff, to intervene in the replevin proceedings. C.R.C.P. 104(m). The replevin court, therefore, also had subject matter jurisdiction to try the claims of third parties concerning the property in question, because such property was in the possession of the court. Thus, even if we were to assume that the replevin court erred in requiring plaintiff to assert his claims in that court,...

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