Hidden Lake Development Co. v. District Court In and For Adams County

• Decision Date: 05 November 1973
• Docket Number: No. 26104,26104
• Citation: 183 Colo. 168,515 P.2d 632
• Parties: HIDDEN LAKE DEVELOPMENT COMPANY et al., Petitioners, v. DISTRICT COURT IN AND FOR the COUNTY OF ADAMS and State of Colorado and theHonorable Oyer G. Leary, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 632

515 P.2d 632

183 Colo. 168

HIDDEN LAKE DEVELOPMENT COMPANY et al., Petitioners, v. DISTRICT COURT IN AND FOR the COUNTY OF ADAMS and State of Colorado and theHonorable Oyer G. Leary, one of the Judges thereof, Respondents.

No. 26104.

Supreme Court of Colorado, En Banc.

Nov. 5, 1973.

Edward B. Towey, Denver, for petitioners.

Casey, Klene, Horan & Wegs, Donald A. Klene, Denver, for respondents.

DAY, Justice.

This is an original proceeding under C.A.R. 21, requesting relief in the nature of prohibition.

Originally, a hearing was held before the Adams County Commissioners, resulting in a granting of a rezoning request to petitioner Hidden Lake Development Company. Other landowners in the area affected calling themselves 'Citizens Concerned to Protect Hidden Lake' sought review of the Commissioners' action by certiorari to the district court. The Commissioners were the only named defendants.

Forty-two days after the rezoning decision (thirteen days after the petition for certiorari was attempted to be filed by the 'Concerned Citizens' group), an amended complaint was proffered to the court. In place of the 'Concerned Citizens', two individuals, Gus and Virginia Ranzenberger, were substituted as plaintiffs, and Hidden Lake Development Company--the beneficiary of the rezoning, but not joined in the action--was added as defendant.

The day following these substitutions defendant Commissioners moved to dismiss the action. They asserted two grounds in support of the motion: (I) that the named plaintiff in the original complaint--'Citizens Concerned to Protect Hidden Lake'--lacked the capacity to sue as an unincorporated association; and (II) that the respondent court was without jurisdiction to review the decision of the Commissioners because of the failure to join the Development Company--an indispensable party--and that because of the 30-day limitation in Rule 106 it was too late to join it by amendment. The respondent court denied the motion and accepted the filing of the amended complaint. The Commissioners and Hidden Lake Development Company then sought relief in this court to prohibit the trial court from proceeding. We issued the rule to show cause, response has been filed and the issues framed. We make the rule absolute.

I.

The action in respondent trial court was based on C.R.C.P. 106(a)(4). Although the complaint also carried a caption indicating that a declaratory judgment was sought, a reading of the complaint reveals it was limited to seeking review by certiorari of the Commissioners' actions and to have the rezoning resolution set aside.

C.R.C.P. 106(b) provides Inter alia:

'* * * If no time within which review may be sought is provided by any statute, a petition for certiorari or other writ seeking to review the acts of any inferior tribunal shall be filed in the district court not later than 30 days from the final action taken by said tribunal. (Amended and effective July 30, 1970.)' (Emphasis added.)

Since the statutes on county rezoning do not provide time limits to review county commissioners' actions, the rule requiring certiorari to be brought not later than thirty days from the date of the rezoning decision is controlling. The first complaint was filed on June 7, 1973--the 29th day after the Commissioners' decision. The second complaint with the Ranzenbergs as plaintiffs was not filed until twelve days after the period of limitation had passed. The two new individual plaintiffs have attempted to adopt for themselves the 'Concerned Citizens' petition for certiorari and to use their filing date. We hold that the 'Citizens Concerned to Protect Hidden Lake' were not an entity that had capacity to bring the action, and that the one now attempted to be brought by the Ranzenbergers is not within the 30-day time limitation of Rule 106(b).

The rules of civil procedure provide two methods for suit by unincorporated associations. First, they may sue in their own name. C.R.C.P. 17. Second, they may sue as a class provided they meet the requirement of a class action. C.R.C.P. 23.2. This suit was based on C.R.C.P. 17, but it is obvious from the pleadings and record that the plaintiffs were not an unincorporated association.

Rule 17 is procedural, providing how a legally constituted entity may bring its action; it does not, however, grant the right to sue to a loosely formed group. Thomas v. Dunne, 131 Colo. 20, 279 P.2d 427 (1955). The status of an unincorporated association must be founded on more than a bald allegation. To sue as an unincorporated association in name only is insufficient. Inanhoe Grand Lodge A.F. & A.M. of Colorado v. Most Worshipful Grand Lodge of Ancient Free and Accepted Masons of Colorado,126 Colo. 515, 251 P.2d 1085 (1952). Such legal entity must in fact exist. Colorado has no statutes pertaining to such associations, so the common law must govern their existence. Chilcott v. Hart, 23 Colo. 40, 45 P. 391 (1896). It is usually characterized by having by-laws governing its organization and operation, a stated purpose for its existence, and providing for its continuity though its membership may change. There should also be...