Smith v. El Paso County, 78-187

• Citation: 593 P.2d 979,42 Colo.App. 316
• Decision Date: 29 March 1979
• Docket Number: No. 78-187,78-187
• Parties: W. T. SMITH, Plaintiff-Appellant, v. COUNTY OF EL PASO, State of Colorado and the County Commissioners of the County of El Paso, Charles Heim, Leo Ververs and Thomas Foulks, Defendants-Appellees, and Jack E. Titus and Joseph P. Davis, Applicants for Intervention-Appellants. . II
• Court: Colorado Court of Appeals

Page 979

593 P.2d 979

42 Colo.App. 316

W. T. SMITH, Plaintiff-Appellant, v. COUNTY OF EL PASO, State of Colorado and the County

Commissioners of the County of El Paso, Charles

Heim, Leo Ververs and Thomas Foulks,

Defendants-Appellees,

and

Jack E. Titus and Joseph P. Davis, Applicants for

Intervention-Appellants.

No. 78-187.

Colorado Court of Appeals, Div. II.

March 29, 1979.

W. T. Smith, pro se.

Quigley, Palermo & Warren, P. C., Christopher D. Whitney, Colorado Springs, for defendants-appellees.

Jack E. Titus, pro se.

Joseph P. Davis, pro se.

ENOCH, Judge.

The applicants for intervention in the action below appeal from the trial court's denial of their motion to intervene and from the subsequent dismissal of the suit. We affirm as to the action taken on applicants' motion and dismiss plaintiff's appeal.

In September 1975, plaintiff, W. T. Smith, applied for a Certificate of Designation to use certain property, which he leased from applicants, as a sanitary landfill known as the Curtis Road Landfill. Defendants, the Board of County Commissioners, issued the Certificate in Smith's name, with the requirement that the Certificate for the landfill be reviewed annually by the Board. On September 1, 1977, the Board held the second annual review of the Certificate, and after a public hearing, adopted a resolution to deny renewal of the Certificate.

Smith filed a complaint under C.R.C.P. 106 on September 16, 1977, challenging the County's action. On November 17, 1977, applicants filed a motion to intervene under C.R.C.P. 24, asserting that they were partners in the Curtis Road Landfill, that Smith was only their employee, and that their interest in the landfill would be impaired if the Certificate of Designation were not renewed. Defendant opposed the motion to intervene as not being timely filed within the 30 days required by C.R.C.P. 106(b). Applicants asserted they had not intervened earlier because until November 17, 1977, they believed Smith would adequately represent their interests. The trial court denied their motion to intervene and subsequently granted defendants' motion to dismiss, which motion was not opposed by Smith.

Applicants contend that the court erred in denying their motion to intervene, alleging that they had an interest in the landfill operation and that they became aware of the inadequacy of plaintiff's representation only after the 30 days. Defendants counter applicants' argument by asserting that applicants were indispensable parties who were not joined within 30 days and that therefore denial of intervention and dismissal of the suit were proper. We hold that the motion to intervene was not timely, and therefore denial of the motion was proper regardless of whether the applicants were indispensable parties.

C.R.C.P. 106(b) provides that the petition for review "shall be filed in the district court not later than 30 days from the final action taken by said tribunal." This time limit has been interpreted to mean that:

"any challenge to any agency action under C.R.C.P. 106(a)(4) must be Perfected within the 30 days limitation of C.R.C.P. 106(b). Perfection includes the correct joinder of indispensable parties as required by C.R.C.P. 19. If other people's rights are going to be affected, they should be made parties from the beginning when agency action may be stayed and the proper parties can within apt time frame the issues and defend their rights." Civil Service Commission v. District Court, 186 Colo. 308, 527 P.2d 531 (1974). (emphasis in original)

Failure to join indispensable parties within 30 days is a jurisdictional defect requiring dismissal of the entire action. Civil Service Commission v. District Court, supra; Hidden Lake Development Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973).

There are no Colorado cases deciding whether permissive joinder or permissive intervention must also be accomplished within the C.R.C.P. 106 30-day time limitation. However, we believe the policy enunciated in Civil Service Commission v....