MORTGAGE INVEST. v. BATTLE MOUNTAIN
| Decision Date | 05 July 2001 |
| Docket Number | No. 99CA2111.,99CA2111. |
| Parties | MORTGAGE INVESTMENTS CORPORATION, a Colorado corporation, Plaintiff-Appellee, v. BATTLE MOUNTAIN CORPORATION; Anglo American Consolidated Corporation; Anglo America Consolidated Corporation; Conejos Advisors Company; Sangre Consultants, Inc.; Apishapa Management, Inc.; Piney Lumber Company; Pine Martin Mining Company; and Battle Mountain Limited Liability Company, Defendants-Appellants. |
| Court | Colorado Court of Appeals |
Certiorari Granted October 21, 2002.1
Netzorg & McKeever, P.C., Gordon W. Netzorg, Cortez Macaulay Bernhardt & Schuetze, LLC, Susan Bernhardt, Denver, CO, for Plaintiff-Appellee.
Appel & Lucas, P.C., Garry R. Appel, Denver, CO, for Defendants-Appellants. Opinion by Judge TAUBMAN.
In this suit to foreclose on a deed of trust, defendants, Battle Mountain Corporation (BMC); Anglo American Consolidated Corporation; Anglo America Consolidated Corporation; Conejos Advisors Company; Sangre Consultants, Inc.; Apishapa Management, Inc.; Piney Lumber Company; Pine Martin Mining Company; and Battle Mountain Limited Liability Company (collectively Battle Mountain), appeal the summary judgment and orders entered in favor of plaintiff, Mortgage Investments Corporation (Mortgage Investments). We affirm in part, reverse in part, and remand for further proceedings.
In 1983, BMC signed a promissory note secured by a deed of trust on real property known as the Gilman property, located in Eagle County, Colorado. The Federal Deposit Insurance Corporation (FDIC) eventually became the holder of the note and in 1990 sued on the note and obtained a judgment in California. In 1991, the California judgment was domesticated in Eagle County. In 1993, the FDIC assigned the judgment and deed of trust to Mortgage Investments.
In 1994, Thomas Nevis, the sole shareholder of BMC, allegedly sold the "corpus" of BMC to Jeff Tucker for $1000, but Tucker did not obtain the BMC stock certificates. Because BMC was not in good standing with the secretary of state and the corporate name was no longer available, Tucker changed BMC's name to Anglo American Consolidated Corporation (AACC).
Later that year, Turkey Creek, L.L.C. (Turkey Creek) filed a complaint in case 94CV152 seeking to foreclose on the deed of trust and seeking to quiet title to some of the Gilman property.
In 1995, Nevis and BMC sold the Gilman property to Glenn Miller and conveyed it to him by quitclaim deed. That same year, Mortgage Investments recorded its interest as an assignee in the judgment and deed of trust regarding the Gilman property.
In 1996, AACC granted 405 deeds of trust on the Gilman property to three of the Battle Mountain defendants and also conveyed parts of the Gilman property to the other three defendants. The trial court found that AACC's grant of the 405 deeds of trust was void.
In 1998, Turkey Creek commenced a second action, case 98CV372, against AACC for damages based upon the 405 fraudulent deeds of trust involved in case 94CV152. Mortgage Investments then commenced this foreclosure action, case 98CV374, against Battle Mountain based on the 1983 BMC deed of trust. Mortgage Investments served the summons and complaint on Tucker as "agent, manager and/or officer" of BMC.
In 1999, over Battle Mountain's objections, the trial court granted the joint motion of Turkey Creek and Mortgage Investments to consolidate, inter alia, cases 98CV372 and 98CV374 with case 94CV152.
Thereafter, the trial court entered summary judgment in favor of Mortgage Investments and struck BMC's pleadings in case 98CV374, concluding that because Tucker had never acquired ownership of BMC, he had no authority to act on BMC's behalf. The court also awarded summary judgment in favor of Mortgage Investments with regard to its claims against the other Battle Mountain defendants as they were created through conveyances from BMC.
Battle Mountain now appeals the summary judgment in case 98CV374 and the orders consolidating the cases, striking its pleadings, and denying post-trial relief.
Initially, we consider and reject Mortgage Investments' contention that Battle Mountain's appeal is not properly before this court because the trial court did not issue a final order. After the notice of appeal was filed, the trial court issued an order certifying the summary judgment as final pursuant to C.R.C.P. 54(b). Thus, we may consider Battle Mountain's appeal.
Battle Mountain first contends that the trial court abused its discretion by consolidating case 98CV374 with case 94CV152. Specifically, Battle Mountain argues that by consolidating the cases, the senior judge presiding over case 94CV152 exceeded his constitutional authority and abused the court's discretion because case 94CV152 was no longer "pending" and there were no common questions of law or fact, as required by C.R.C.P. 42(a). We disagree.
A court may consolidate pending actions involving common questions of law or fact. C.R.C.P. 42(a). The decision to grant or deny a motion to consolidate lies within the sound discretion of the trial court, and its ruling will not be disturbed on review absent a clear abuse of that discretion. Fed. Deposit Ins. Corp. v. Bowen, 865 P.2d 868 (Colo. App.1993).
In October 1998, Turkey Creek and Mortgage Investments filed a joint motion to consolidate case 98CV374 and case 98CV372. In February 1999, they filed a motion to consolidate, inter alia, cases 98CV372 and 98CV374 with case 94CV152. Over Battle Mountain's opposition, the trial court granted the second motion.
Battle Mountain first asserts that because the senior judge was appointed originally to perform temporary judicial duties only in case 94CV152, he exceeded his constitutional authority in consolidating the other cases with that case. We are not persuaded.
The Colorado Constitution states, in pertinent part, "Whenever the chief justice deems assignment of a judge necessary to the prompt disposition of judicial business, he may ... (b) assign any ... retired ... district... judge who consents, temporarily to perform judicial duties in any court." Colo. Const. art. VI, § 5(3). Accordingly, retired judges from the judicial division, who have entered into an agreement with the chief justice of the supreme court, are permitted to "return to temporary judicial duties" as senior judges. Section 24-51-1105(1)(a), C.R.S.2000. Thus, retired judges may preside as senior judges over district court cases.
Here, in 1996, the judge presiding over case 94CV152 retired, but subsequently was assigned to continue hearing that case as a senior judge. The order stated, "After review of the above-entitled matter, counsel's request, and consultation with the Chief Justice, it is hereby Ordered that the Honorable William L. Jones, Senior Judge, be appointed to hear this matter [case 94CV152] to its conclusion." Three years later, that senior judge granted the motion to consolidate discussed above.
We conclude that the senior judge did not exceed his constitutional authority by granting the motion to consolidate. Neither the Colorado Constitution nor § 24-51-1105(1)(a) prohibits a senior judge from consolidating cases when it is appropriate to do so under C.R.C.P. 42(a). Without such an express prohibition, there is no reason to preclude a senior judge from performing the tasks required of a district court judge. Cf. Merchants Mortgage & Trust Corp. v. Jenkins, 659 P.2d 690 (Colo.1983)(Colorado Constitution deprives a judge of jurisdiction to act on district court cases after appointment to court of appeals); People v. Torkelson, 22 P.3d 560 (Colo.App.2000)(court acted without jurisdiction when county court judge who accepted the verdict was not appointed pursuant to the constitution and chief justice directive).
In addition, contrary to Battle Mountain's contention, there is no indication that the parties engaged in judge-shopping. In selecting the court in which to file their motion for consolidation, Turkey Creek and Mortgage Investments merely complied with C.R.C.P. 121 § 1-8 and filed the motion in the court hearing the earliest filed case, namely case 94CV152.
Accordingly, we conclude that the trial court judge did not exceed his constitutional authority by consolidating the cases.
In addition, Battle Mountain contends that the trial court abused its discretion in consolidating the cases because the requirements for consolidation under C.R.C.P 42 were not met. Specifically, Battle Mountain asserts that case 94CV152 was no longer pending before the trial court, that it did not have the same parties as case 98CV374, and that the two cases did not involve the same property. Again, we are not persuaded.
Battle Mountain first argues that case 94CV152 was no longer pending because it had been affirmed on appeal in Turkey Creek, LLC v. Rosania, 953 P.2d 1306 (Colo. App.1998). However, that appeal was from a partial summary judgment and did not affect issues that remained pending before the trial court. Thus, case 94CV152 was still pending for the purpose of C.R.C.P. 42(a).
Next, Battle Mountain asserts that the two cases did not involve the same property. However, the record does not support this assertion. Rather, the record demonstrates that the property listed in an attachment to Mortgage Investments' complaint in case 98CV374 includes some of the same property listed in documents relating to case 94CV152. Thus, because some of the same property was involved in both cases, the trial court did not abuse its discretion in consolidating the cases.
The fundamental inquiry in determining whether consolidation is appropriate is whether the cases share common questions of law or fact. C.R.C.P. 42(a).
Here, the common legal question linking these cases was the ownership of the Gilman property. Several parties presented competing claims...
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