Golf v. Town of La Veta

• Decision Date: 03 March 2011
• Docket Number: No. 09CA2750.,09CA2750.
• Citation: 252 P.3d 1196
• Parties: GRANDOTE GOLF AND COUNTRY CLUB, LLC, a Colorado limited liability company, Plaintiff–Appellant,v.TOWN OF LA VETA, a Colorado municipal corporation, Defendant–Appellee.
• Court: Colorado Court of Appeals

252 P.3d 1196

GRANDOTE GOLF AND COUNTRY CLUB, LLC, a Colorado limited liability company, Plaintiff–Appellant,

v.TOWN OF LA VETA, a Colorado municipal corporation, Defendant–Appellee.

No. 09CA2750.

Colorado Court of Appeals, Div. V.

March 3, 2011.

Hall & Evans, L.L.C., Alan Epstein, Denver, CO; Gary E. Hanisch, Walsenburg, CO, for Plaintiff–Appellant.Grimshaw & Harring, P.C., Larry W. Berkowitz, Philip M. Quatrochi, Thomas N. George, Denver, CO, for Defendant–Appellee.Opinion by Judge J. JONES.

Plaintiff, Grandote Golf and Country Club, LLC (Grandote), appeals the district court's judgment granting defendant Town of La Veta's motion to dismiss. We affirm.

I. Background

In 1984, the Town adopted Ordinance No. 131 to annex certain property in Huerfano County after Grandote's predecessor in interest, Grandote Golf and Country Club (GGCC), the owner of the property, petitioned it to do so. In 1985, GGCC filed a court action seeking to require the Town to file two certified copies of the ordinance with the county clerk and recorder (the Town had filed only one), claiming that such filing was statutorily required to render the annexation effective. In exchange for GGCC dismissing the lawsuit, the Town adopted Ordinance No. 144 to repeal Ordinance No. 131. In 1987, the Town adopted Ordinance No. 154 to annex a portion of the property after GGCC petitioned it to do so.

In 2009, Grandote filed this action, seeking a declaratory judgment that Ordinance No. 144 was void and of no effect because the Town had not complied with statutory disconnection requirements, and therefore all the property Ordinance No. 131 purported to annex remained part of the Town.¹ The Town filed a motion to dismiss, arguing that two statutes of limitation barred Grandote's complaint. In later briefing, the Town also asserted that Ordinance No. 131's purported annexation never took effect because two statutorily required filings had not been made, and therefore Ordinance No. 144 did not have to comply with the disconnection statutes because there was no annexed property to disconnect. Specifically, the Town asserted that it had not filed a second certified copy of Ordinance No. 131 with the county clerk and recorder, as required by a former version of section 31–12–113(2)(a)(II)(A), C.R.S.2010, and by 24–32–109, C.R.S.2010, and that the county clerk and recorder had not filed a copy of Ordinance No. 131 with the division of local government, as required by section 24–32–109.² The Town asserted in the alternative that the property described in Ordinance No. 131 was no longer in the Town because GGCC, the Town, and the Board of County Commissioners would not have respectively petitioned for, adopted, and approved Ordinance No. 154 had they considered the property already within the Town.

The district court granted the Town's motion to dismiss, concluding that Grandote's declaratory judgment action accrued on Ordinance No. 144's effective date in 1985 and was, therefore, barred by the applicable two-year statute of limitations. Ruling in the alternative, the court concluded that Grandote was not entitled to declaratory relief because Ordinance No. 144 had repealed Ordinance No. 131, and GGCC's subsequent petition for and the Town's subsequent adoption of Ordinance No. 154 indicated that both GGCC and the Town understood the property was not in the Town.

Grandote appeals, contending that (1) the statute of limitations for its declaratory judgment action (a) never began to run because Ordinance No. 144 never became effective or, (b) began to run only when Grandote knew or should have known that Ordinance No. 144 was not effective; (2) the district court should not have considered GGCC's and the Town's subjective understanding of Ordinance No. 144's validity in determining whether that ordinance was effective; and (3) Ordinance No. 144 is invalid because the Town did not comply with statutory disconnection requirements.³ All these contentions are moot, however, if the annexation contemplated by Ordinance No. 131 never became effective, a matter which, though raised by the Town, the district court did not address. We conclude that it did not become effective; therefore, Ordinance No. 144 repealed Ordinance No. 131 and did not need to comply with statutory disconnection requirements. See Newflower Mkt., Inc. v. Cook, 229 P.3d 1058, 1061 (Colo.App.2010) (if the district court reached the correct result, its judgment may be affirmed on different grounds); Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406 (Colo.App.2004) (an appellate court may affirm the district court's ruling based on any grounds that are supported by the record).

II. Standard of Review

The Town did not submit exhibits with its initial, statutes of limitation-based motion to dismiss. However, it subsequently submitted multiple exhibits to demonstrate that Ordinance No. 131's purported annexation of the property never became effective because (1) it had filed only one of the two certified copies of Ordinance No. 131 that sections 31–12–113(2)(a)(II)(A) and 24–32–109 required it to file with the county clerk and recorder; and (2) the county clerk and recorder had not filed a copy of the ordinance with the division of local government as required by section 24–32–109. Both parties assume that the district court considered these documents and that the Town's motion to dismiss was thereby converted to a motion for summary judgment, and urge us to apply summary judgment principles to Grandote's appellate contentions. Therefore, we agree that review applying such principles is appropriate. See C.R.C.P. 12(b) (if matters outside the pleadings are presented to and not excluded by the district court, a motion to dismiss for failure to state a claim shall be treated as one for summary judgment); Pub. Serv. Co. v. Van Wyk, 27 P.3d 377, 386 (Colo.2001) (same).

Summary judgment is appropriate if the pleadings and supporting documentation demonstrate that no genuine issue of material fact exists and that the moving party is entitled to summary judgment as a matter of law. Rocky Mountain Festivals, Inc. v. Parsons Corp., 242 P.3d 1067, 1074 (Colo.2010); Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282, 290 (Colo.App.2009). We review a district court's grant of summary judgment de novo. Rocky Mountain Festivals, 242 P.3d at 1074; Lafarge North Am., Inc. v. K.E.C.I. Colo., Inc., 250 P.3d 682, 685 (Colo.App.2010).

III. Discussion

Grandote does not dispute that the two statutorily required filings of Ordinance No. 131 were not made. Instead, Grandote contends that we must presume Ordinance No. 131's purported annexation was effective because the Town never instituted court proceedings to have the ordinance declared invalid. In the alternative, Grandote contends that Ordinance No. 131 validly annexed the subject property because there was substantial compliance with the statutory filing requirements. We are not persuaded by either contention.

A. The Town May Challenge the Effectiveness of Ordinance No. 131

As a threshold matter, we disagree with Grandote's argument that we cannot consider the alleged ineffectiveness of Ordinance No. 131's purported annexation because the Town never sought a declaratory judgment that Ordinance No. 131 was ineffective.

Grandote's complaint challenged whether Ordinance No. 144 effectively disconnected the property Ordinance No. 131 had purported to annex. Grandote thereby placed the effectiveness of Ordinance No. 131's annexation in issue because the disconnection statutes on which Grandote relies applied to Ordinance No. 144 only if Ordinance No. 131 effectively annexed the property—that is, if the property at issue was “within and adjacent to” the Town or part of “an existing municipality.” See §§ 31–12–501, 24–32–109. Therefore, we may address whether Ordinance No. 131 effectively annexed the property. See 7250 Corp. v. Bd. of County Comm'rs, 799 P.2d 917, 921 (Colo.1990) (addressing the validity of an enabling act because, if it was invalid, the ordinance at issue would be void from its inception); In re Annexation to City of Prospect Heights, 111 Ill.App.3d 541, 67 Ill.Dec. 522, 444 N.E.2d 758, 759–60 (1982) (a party may defend against an attack on its annexation petition by collaterally challenging the validity of a prior petition or annexation); cf. § 31–12–116(4), C.R.S.2010 (an annexation may “be directly or collaterally questioned in any suit, action, or proceeding”). ⁴

B. The Annexation Contemplated by Ordinance No. 131 Was Never Effective

It is undisputed that two certified copies of Ordinance No. 131 (together with a map of the annexed property) were not filed with the county clerk and recorder as required by sections 31–12–113(2)(a)(II)(A) and 24–32–109. Nor is it disputed that the county clerk and recorder never filed a copy of the ordinance (again, with a map of the annexed property) with the division of local government, as required by section 24–32–109. But Grandote argues that Ordinance No. 131's annexation was effective because there was substantial compliance with the statutory filing requirements. We conclude that substantial compliance is insufficient to satisfy these statutory requirements and, even if it were, there was no substantial compliance with section 24–32–109's requirement that the ordinance be filed with the division of local government.

Whether the filing requirements of sections 31–12–113(2)(a)(II)(A) and 24–32–109 must be strictly complied with or need only be substantially complied with to render an annexation effective is an issue of first impression in Colorado. The issue is one of statutory interpretation. See Charnes v. Norwest Leasing, Inc., 787 P.2d 145, 147 (Colo.1990) (determining whether strict or substantial compliance with a statute is required is a question of legislative intent; applying ordinary rules of statutory interpretation); Amos v. Aspen Alps 123, LLC, –––...