People v. Davenport, 98CA2387.

• Decision Date: 02 March 2000
• Docket Number: No. 98CA2387.,98CA2387.
• Citation: 998 P.2d 473
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, v. Darel Wayne DAVENPORT, Jr., Respondent-Appellant.
• Court: Colorado Court of Appeals

998 P.2d 473

The PEOPLE of the State of Colorado, Petitioner-Appellee, v. Darel Wayne DAVENPORT, Jr., Respondent-Appellant.

No. 98CA2387.

Colorado Court of Appeals, Div. I.

March 2, 2000.

Paul R. Mclimans, District Attorney, Kathryn Steelman, Deputy District Attorney, Steamboat Springs, Colorado, for Petitioner-Appellee.

Edward R. Harris, Denver, Colorado, for Respondent-Appellant.

Opinion by Judge NIETO.

In this civil forfeiture action, defendant, Darel Wayne Davenport, Jr., appeals the default judgment entered in favor of the People. We reverse and remand for further proceedings.

The prosecution filed a petition under the Colorado Contraband Forfeiture Act, §§ 16-13-501 to XX-XX-XXX, C.R.S.1999, seeking forfeiture of $23,000 of seized currency which was allegedly used in the unlawful distribution of a controlled substance.

The trial court issued a citation which summoned defendant to a first appearance on a date certain in order to show cause why the prosecution's petition for forfeiture should not be granted. The citation warned defendant that a default judgment would be entered against him "if you fail to file a response to the petition ... or if you fail to appear personally or by counsel at the first appearance." A copy of the citation was served on defendant by certified mail.

The day before the first appearance date, the clerk of the trial court received from defendant's attorney a response to the forfeiture petition, a motion to continue the forfeiture proceeding until the conclusion of the criminal case, and a verified statement executed by defendant asserting that the funds at issue were lawful proceeds from a legitimate investment. The docket fee required by § 13-32-101, C.R.S.1999, did not accompany the documents. However, the clerk accepted the documents for filing and presented them to the court. The prosecutor acknowledged to the court that before the hearing she had received a copy of the documents filed by the defendant. Defendant asserts he tendered the docket fee as soon as the error was called to his attention.

Neither defendant nor his counsel appeared at the first appearance hearing on the citation to show cause. The trial court acknowledged that defendant had "filed" a response but ordered it stricken because it was unaccompanied by the necessary filing fee. The court then entered default judgment in favor of the people, reasoning that defendant had failed to file a response and had also failed to appear personally or through counsel. Defendant filed a motion to set aside the default judgment; that motion was denied. This appeal followed.

I.

Defendant argues that his failure to pay the docket fee at the time he filed his response was not a sufficient basis for striking the response, and therefore, the trial court erred by striking the response and entering default judgment against him. We agree.

Section 16-13-505(8) requires the court to find the defendant in default at the first hearing unless he either files a response or appears in person or by counsel.

If any claimant to the property subject to a forfeiture action ... is properly served with the citation . . . and fails to appear personally or by counsel on the first appearance date or fails to file a response as required by this section, the court shall forthwith find said person in default and enter an order forfeiting said person's interest in the property and distributing the proceeds of forfeiture as provided in this part 5 (emphasis added).

Section 16-13-505(8), C.R.S.1999. Therefore, if defendant's response was improperly stricken, it was error to enter default judgment at the first hearing.

Filing a response and paying the docket fee are two distinct acts. Drennen v. Johnson, 65 Colo. 381, 176 P. 479 (1918). The case cannot proceed to a final determination until the fee is paid, but it is not improper for the court to allow the party to pay the fee at a later time. Carls Construction, Inc. v. Gigliotti, 40 Colo.App. 535, 577 P.2d 1107 (1978). "Unless it is necessary to enforce procedural rules to protect substantive rights, litigation should be determined on the merits, rather than on technical application of procedural rules." Watson v. Fenney, 800 P.2d 1373, 1375 (Colo.App.1990). Here defendant attempted to comply with the statute. He sent his response to the court and to the prosecutor. The prosecutor suffered no harm by the defendant's failure to timely pay the docket fee.

Entry of default judgment is the harshest of all sanctions, and it should be used only in extreme circumstances. Nagy v. District Court, 762 P.2d 158 (Colo.1988). Defendant did violate a...