Isis Litigation, LLC v. Svensk Filmindustri

• Decision Date: 22 March 2007
• Docket Number: No. 04CA1619.,04CA1619.
• Citation: 170 P.3d 742
• Parties: ISIS LITIGATION, L.L.C., an Arizona limited liability company, Plaintiff-Appellant, v. SVENSK FILMINDUSTRI, a corporation, Defendant-Appellee.
• Court: Colorado Court of Appeals

170 P.3d 742

ISIS LITIGATION, L.L.C., an Arizona limited liability company, Plaintiff-Appellant, v. SVENSK FILMINDUSTRI, a corporation, Defendant-Appellee.

No. 04CA1619.

Colorado Court of Appeals, Div. II.

March 22, 2007.

Rehearing Denied May 3, 2007.

Certiorari Denied November 13, 2007.

Holland & Hart, LLP, Jack L. Smith, Stephen G. Masciocchi, Denver, Colorado; Garfield & Hecht, P.C., Matthew C. Ferguson, Aspen, Colorado, for Plaintiff-Appellant.

Hugh D. Wise, III, Aspen, Colorado, for Defendant-Appellee.

Opinion by Judge LOEB.

Plaintiff, Isis Litigation, L.L.C., appeals from a trial court order discharging an order to show cause intended to compel defendant, Svensk Filmindustri, to answer C.R.C.P. 69(d) post-judgment interrogatories, and an order denying a motion for reconsideration. We reverse and remand for further proceedings.

In Isis Litigation, L.L.C. v. Svensk Filmindustri, 2005 WL 2327227 (Colo.App. Nos. 03CA1448 & 04CA0119, Sept. 22, 2005)(not published pursuant to C.A.R. 35(f))(cert. denied Apr. 10, 2006, 2006 WL 1629455), a division of this court affirmed the trial court's judgment that Svensk had breached a guarantee of a tenant's performance of a theater lease and was liable to Isis for damages and attorney fees totaling approximately $6.7 million.

In August 2003, Isis began the process of executing on the judgment. Svensk, a Swedish corporation, does not maintain a registered agent or corporate presence in Colorado. However, Svensk is qualified to do business in California. Accordingly, by personal delivery to Svensk's registered agent for service of process in California, Isis served post-judgment interrogatories pursuant to C.R.C.P. 45(f) and 69(d)(1), seeking information concerning Svensk's assets.

Svensk did not answer the interrogatories. In September 2003, Isis moved for an order to show cause pursuant to C.R.C.P. 69(d)(2). In December 2003, the trial court issued an order requiring Svensk to answer the interrogatories or show cause why it should not be held in contempt. Isis attempted to serve this order on Svensk's registered agent for service of process, but discovered that the agent had resigned in October and had not been replaced.

Isis then filed a motion in the Los Angeles County Superior Court to authorize service on the California Secretary of State. The Superior Court granted the motion, and, in March 2004, Isis served the order to show cause and all other relevant documents (including the interrogatories) by personal delivery to the California Secretary of State.

Also in March 2004, Svensk filed an answer to Isis's motion for a show cause order, contending that C.R.C.P. 45 did not authorize extraterritorial service of either C.R.C.P. 69 interrogatories or the order to show cause, and that, therefore, those documents had not been properly served. Svensk also asserted that the interrogatories were not "process" and, thus, could not be served on its registered agent for service of process.

Isis filed a supplemental reply addressing Svensk's answer on April 1, 2004. On the same day, the trial court entered an order discharging the order to show cause. Because Isis's reply was not available in the court's file when that order was entered, Isis moved for reconsideration, and the court reopened the matter and held a hearing.

After further briefing and a hearing, the trial court issued another order on July 2, 2004, denying Isis's motion for reconsideration and reaffirming its earlier order discharging the order to show cause. The court ruled first that C.R.C.P. 69(d)(1) "post judgment written interrogatories are not `process' such that service of them upon an individual designated in California as `an agent upon whom process may be served' is effective." The trial court further ruled that "service under C.R.C.P. 45 of both the post-judgment written interrogatories and the order to show cause was not effective when served only on the individual designated in California as `an agent upon whom process may be served' for a corporation foreign to Colorado and California." This appeal followed.

To determine whether service of C.R.C.P. 69(d) post-judgment interrogatories upon a registered agent for service of process in California is proper, we must first consider the threshold question of whether such interrogatories are "process." Next, we consider whether service on Svensk's registered agent for service of process and on the California Secretary of State was proper personal service under C.R.C.P. 45 and 69. Finally, we determine whether the rules permit extraterritorial service of the interrogatories and order to show cause.

Whether post-judgment interrogatories are process and how they should be served are procedural issues subject to Colorado law. Apache Vill., Inc. v. Coleman Co., 776 P.2d 1154, 1155 (Colo.App.1989)(procedural laws of the forum court should govern). Our interpretation of the rules of civil procedure involves questions of law, which we review de novo. See People v. Shell, 148 P.3d 162, 178 (Colo.2006); cf. In re Estate of Wiltfong, 148 P.3d 465, 468 (Colo.App.2006) (statutory interpretation is a question of law we review de novo).

I.

Isis first contends the trial court erred by ruling that C.R.C.P. 69(d) interrogatories are not "process" that can be validly served on a corporate judgment debtor's registered agent for service of process. We agree.

The parties offer widely divergent views on how we should define "process" in this case. Isis contends that, under modern authority, "process" is a broad term that encompasses not only a summons, but also subpoenas and other documents, and that postjudgment interrogatories constitute "process" under this modern view. Svensk contends that C.R.C.P. 69(d) interrogatories do not meet the traditional definition of "process" because they are not an act of the court, but are issued by an attorney, and that process is limited to documentation that runs in the name of the People of the State of Colorado. Svensk concedes that the definition of process has been expanded in abuse of process cases to fit goals sought to be attained in those cases, but argues that an expanded definition is limited to such cases. We agree with Isis.

Colorado law does not provide an explicit definition of process, and whether C.R.C.P. 69(d) interrogatories are process is an issue of first impression.

We first reject Svensk's argument that, to constitute process, a document must run in the name of the People. Svensk's argument is based on three Colorado cases that preceded the adoption of the Colorado Rules of Civil Procedure: People ex rel. Setters v. Lee, 72 Colo. 598, 213 P. 583 (1923); Haley v. Elliott, 16 Colo. 159, 26 P. 559 (1891); and Comet Consolidated Mining Co. v. Frost, 15 Colo. 310, 25 P. 506 (1890). Further, those cases relied on a then existing, but long since repealed, provision of the Colorado Constitution, which specifically provided that "[all] process shall run in the name of `The People of the State of Colorado.'" Thus, those authorities do not aid us in defining process for purposes of this case.

Nor are we persuaded by Isis's reliance on abuse of process cases, mostly from California, to support its argument that the term "process" should be "broadly interpreted to encompass the entire range of procedures incident to litigation." See Younger v. Solomon, 38 Cal.App.3d 289, 296, 113 Cal.Rptr. 113, 117 (1974) (process includes interrogatories); see also Twyford v. Twyford, 63 Cal. App.3d 916, 923, 134 Cal.Rptr. 145, 148 (1976) (abuse of process could include interrogatories, depositions, and requests for admission). In our view, the broad expansion of the term "process" articulated in these abuse of process cases is not persuasive for the issue we have to decide here, because these cases occur specifically in the context of the tort of abuse of process and limit their broad discussion of process to that situation. See Lister v. Superior Court, 98 Cal.App.3d 64, 71, 159 Cal.Rptr. 280, 284 (1979) (distinguishing abuse of process cases, and noting that, even in that context, "the scope of the word `process' has been extended to the abuse only of such powers as the taking of depositions and the sending of written interrogatories both of which are specifically authorized by statutes providing clear enforcement sanctions"); Younger v. Solomon, supra.

We thus look to other sources and authorities to discern the applicable definition of "process" for this case.

In its order, the trial court cited the following definition of "judicial process" from an earlier edition of Black's Law Dictionary:

In a wide sense, this term may include all the acts of a court from the beginning to the end of its proceedings in a given case; but more specifically it means the writ, summons, mandate, or other process which is used to inform the defendant of the institution of proceedings against him and to compel his appearance, in either civil or criminal cases.

Black's Law Dictionary 1370 (4th ed.1951) (emphasis added). However, "process" is defined in a more recent edition of Black's as follows:

1. The proceedings in any action or prosecution [due process of law]. 2. A summons or writ, esp. to appear or respond in court [service of process].

"The term `process' is not limited to `summons.' In its broadest sense, it is equivalent to, or synonymous with, `procedure,' or `proceeding.' Sometimes the term is also broadly defined as the means whereby a court compels a compliance with its demands." 72 CJS Process § 2, at 589 (1987).

Black's Law Dictionary 1242 (8th ed.2004).

Process has also been defined as "action taken pursuant to judicial authority," and "the means whereby a court compels a compliance with its demands." See State v. Graves, 170 Vt. 646, 757 A.2d 462, 464 (2000) (quoting California and Missouri cases; finding support for a broad definition of "process" in a number of cases considering the term "process" in a variety of...