Halaby, McCrea & Cross v. Hoffman, 91SA414

Docket NºNo. 91SA414
Citation831 P.2d 902
Case DateJune 22, 1992
CourtSupreme Court of Colorado

Halaby, McCrea & Cross, Theodore S. Halaby and John T. Scherling, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., and David C. Feola, Asst. Atty. Gen., Denver, for respondent.

Chief Justice ROVIRA delivered the Opinion of the Court.

In this original proceeding pursuant to C.A.R. 21, the law firm of Halaby, McCrea and Cross, petitioner, alleges that Judge Morris B. Hoffman, respondent, exceeded his jurisdiction or abused his discretion in imposing sanctions against it and requests that we prohibit enforcement of the order imposing sanctions. We issued a rule to show cause why the relief requested should not be granted and now make the rule absolute.


The underlying action in this case stems from an incident involving Endel Meiusi and Paul C. Baca, a Denver police officer. On May 4, 1990, Baca, although not on duty and therefore not in uniform, was diverting traffic away from an accident. Meiusi refused to be diverted, not believing that Baca was a police officer. This lead to a confrontation between Baca and Meiusi, following which Meiusi and his wife brought a civil action against Baca. 1 The petitioner represents Baca in that civil action. Meiusi v. Officer Paul C. Baca, No. 91-CV-1522.

The assigned judge in the Meiusi case entered an order requiring the parties to participate in mediation pursuant to section 13-22-311, 6A C.R.S. (1991 Supp.), or in the alternative, to participate in a court settlement conference. The order required the parties to proceed in good faith and in a reasonable manner, and stated that failure to do so may result in sanctions. The parties chose to participate in a settlement conference and the respondent was assigned to preside over that conference. 2

Prior to the conference the respondent ordered the parties to submit a confidential settlement statement outlining the nature of the case, the issues to be resolved and the full extent of their current settlement position. In its settlement conference statement dated October 16, 1991, the petitioner stated that the plaintiffs' claims were without merit and concluded by advising the court that:

Plaintiffs' claims are frivolous and groundless. It is evident that this lawsuit was brought solely to affect the pending criminal prosecution of Endel Meuisi [sic]. Accordingly, Defendant is unprepared at the present time to make a settlement offer.

The settlement conference was held on October 21, 1991. After the respondent discussed the case with the parties, both individually and collectively, Meiusi offered a settlement figure. When the respondent solicited a counter offer from Baca, the petitioner informed him that it had authority to settle for no more than $300. The settlement conference then came to a close.

Two days later, the respondent issued an order in which he noted that two hours were spent discussing the case, that the petitioner should have disclosed its "$300.00 worth of settlement authority" at the outset of the settlement conference and that this failure to so disclose evidenced the petitioner's lack of good faith and consequently violated the assigned judge's order for mediation or a settlement conference, and the respondent's prior order that the parties come to the settlement conference with full settlement authority. The order further stated that the petitioner's level of settlement authority "was an insult to me, to the parties and their attorneys, and to the integrity of the settlement process itself." Based on these findings, the respondent found that the petitioner acted in bad faith and imposed sanctions in the amount of $555 against the petitioner, representing the Meiusis' reasonable attorneys' fees for attending the settlement conference. The respondent cited Wooden by Wooden v. Park School District, 748 P.2d 1311 (Colo.App.1987), in support of his authority to impose sanctions.

The issue before us is whether the respondent exceeded his jurisdiction or abused his discretion in imposing sanctions under the circumstances here.


The respondent initially argues that the rule to show cause should be discharged because the petitioner failed to meet the prerequisites for extraordinary relief, there being an adequate appellate remedy available upon final judgment. An original proceeding under C.A.R. 21 is an extraordinary remedy limited in purpose and in availability. White v. District Court, 695 P.2d 1133, 1135 (Colo.1984). Relief in the nature of prohibition may be used to determine whether "the district court 'is proceeding without or in excess of its jurisdiction.' " Id., quoting C.A.R. 21(a). It is also a proper remedy in cases where the trial court has abused its discretion and where an appellate remedy would not be adequate, Prudential Property & Casualty Insurance Company of America v. District Court, 617 P.2d 556, 558 (Colo.1980), but it is not a substitute for an appeal. White, 695 P.2d at 1135. Granting an original proceeding is entirely within this court's discretionary authority. Id.

In People v. Vargas, 679 P.2d 1088 (Colo.App.1983), aff'd sub nom. Bye v. District Court, 701 P.2d 56 (Colo.1985), two court-appointed attorneys appealed an order of the trial court denying their request for increased attorneys' fees incurred in connection with their representation of a criminal defendant, against whom the charges were dismissed. Vargas, 679 P.2d at 1089. The court of appeals dismissed the appeal, finding that it lacked jurisdiction to entertain an appeal by the defense counsel where neither the defendant nor the prosecutor appealed the case after it was dismissed. Id. We found that the court of appeals properly dismissed the appeal, but for different reasons, and we exercised our original jurisdiction to review the award of attorneys' fees to court-appointed counsel. Bye v. District Court, 701 P.2d 56, 59 (Colo.1985).

We determined that fee controversies should generally be resolved through the exercise of original jurisdiction because trial court orders concerning such fees are administrative in nature and because such orders for payment of attorneys' fees are collateral to the merits of the underlying action. Id. The issue was determined to be collateral because the underlying action had been dismissed and because the parties to the controversy over the attorneys' fees, after the dismissal of the criminal charges, were the court-appointed attorneys and the trial court, not the defendant and the prosecutor, neither of whom appealed the dismissal of the criminal charges. Id. at 60. Thus, a petition to this court, pursuant to C.A.R. 21, alleging that the trial court exceeded its jurisdiction or otherwise acted illegally is a proper mode of obtaining review of the trial court's order of attorneys' fees. Id.

We also found, however, that "where there is an appeal on some aspect of the underlying action, the court-appointed attorney challenging the amount or payment of fees may raise that issue on appeal, without the necessity of bringing an independent original proceeding." Id. Therefore, where the underlying action is appealed, the court of appeals has jurisdiction to resolve disputes over orders concerning attorneys' fees, but if the underlying action is not appealed, original jurisdiction by this court is appropriate.

The circumstances here are similar to Bye v. District Court. The controversy over sanctions, which implicates an entirely different legal theory from the underlying action alleging assault, battery, false imprisonment, false arrest, malicious prosecution, and outrageous conduct, is collateral to the merits of that action. Not only is the issue in dispute here completely separate from the merits of the underlying action, but the parties to this action, the law firm of Halaby, McCrea & Cross and Judge Morris B. Hoffman, are different from the parties to the underlying action, Baca and the Meiusis. These similarities, as well as the rationale in Bye v. District Court, persuade us that while the court of appeals is not without jurisdiction to determine this issue if any of the underlying issues of the case are appealed, our exercise of original jurisdiction, under the circumstances here, is also appropriate.

In Bye v. District Court, we did not exercise original jurisdiction until after the underlying action was dismissed and the parties were aware that the underlying action was not going to be appealed. Here, however, we find that original jurisdiction is appropriate prior to dismissal of the underlying action or such knowledge that there will be no appeal, because even if there is an appellate remedy the petitioner is now under order to comply with the sanction or risk being held in contempt of court. Hence, appellate review upon final judgment does not benefit the petitioner. Since original jurisdiction is appropriate for review of this collateral issue if the underlying action is not appealed and because the petitioner may be held in contempt prior to any opportunity for appellate review, our exercise of original jurisdiction is appropriate. See also Raymond Lloyd Co. v. District Court, 732 P.2d 612 (Colo.1987) (original jurisdiction invoked to determine whether the district court had authority, pursuant to a local rule, to impose sanctions against parties to civil actions who settled their disputes after trial dates had been set); People v. District Court, 664 P.2d 247 (Colo.1983) (original jurisdiction to review whether trial court abused its discretion in excluding evidence as a sanction was appropriate because the prosecution's ability to litigate would be impaired by the trial court order and because the defendant could not be retried if acquitted).


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