Southeastern Colorado Water Conservancy Dist. v. Cache Creek Min. Trust

• Decision Date: 24 May 1993
• Docket Number: No. 92SA251,92SA251
• Citation: 854 P.2d 167
• Parties: SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT, Complainant-Appellee, v. CACHE CREEK MINING TRUST and Twin Lakes Associates, Inc., Respondents, and Dennis O'Neill, Respondent-Appellant.
• Court: Colorado Supreme Court

Page 167

854 P.2d 167

SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT, Complainant-Appellee, v. CACHE CREEK MINING TRUST and Twin Lakes Associates, Inc., Respondents and Dennis O'Neill, Respondent-Appellant.

No. 92SA251.

Supreme Court of Colorado En Banc.

May 24, 1993.

Rehearing Denied June 21, 1993.

William R. Kelso, Denver, for respondent-appellant.

Carlson, Hammond & Paddock, Mary Mead Hammond, Lee H. Johnson, Denver, for Twin Lakes Reservoir and Canal Co. and Special Counsel to Bd. of Water Works of Pueblo, Colo.

Petersen & Fonda, William F. Mattoon, Pueblo, for Bd. of Water Works of Pueblo, Colo.

Fairfield and Woods, P.C., Howard Holme, Stephen H. Leonhardt, Denver, for complainant-appellee Southeastern Colo. Water Conservancy Dist.

Justice MULLARKEY delivered the Opinion of the Court.

This appeal marks the third time that these parties have been before this court on matters relating to six water rights decreed in 1912 to three ditches, the Cache Creek, Arlington, and Clear Creek Ditches. In Southeastern Colorado Water Conservancy District v. Twin Lakes Associates, Inc., 770 P.2d 1231 (Colo.1989) (O'Neill I ), this court affirmed a judgment of the water court canceling the water rights on the grounds that the water rights had been abandoned shortly after they were decreed. Subsequently, Dennis O'Neill (O'Neill), filed a motion pursuant to C.R.C.P. 60(b)(5), alleging newly discovered evidence, which was denied by the water court, and affirmed by this court in Southeastern Colorado Water Conservancy District v. O'Neill, 817 P.2d 500 (Colo.1991) (O'Neill II ). Now, in another attempt to revive the six abandoned water rights, O'Neill appeals the water court's denial of his motion pursuant to C.R.C.P. 60(b)(2) to set aside the judgment of the water court because the Southeastern Colorado Water Conservancy District and the other objectors to O'Neill's application for a change of water rights (collectively referred to herein as Southeastern) allegedly committed fraud upon him and the court. We affirm the water court's judgment, and because we find this appeal to be frivolous, we remand the case to the water court to assess attorney fees against O'Neill for Southeastern's costs in defending this appeal.

I.

On March 18, 1912, six water rights were decreed to Twin Lakes Placers, Limited (Twin Lakes), a British corporation licensed to do business in Colorado. Beginning during the Civil War, and continuing until June 1912, Twin Lakes used water rights totalling 140 cubic feet per second from the three ditches for large-scale hydraulic gold mining in placer mines in Lake and Chaffee Counties. This mining operation discharged mine tailings and debris into the Arkansas River, polluting the river with fine particulate matter and rendering the water unfit for human consumption. This pollution resulted in a court action brought by the cities of Pueblo and Canon City to enjoin Twin Lakes from discharging mine tailings or debris into the Arkansas River. An injunction to that effect was ordered on June 24, 1912. After that time, Twin Lakes went out of business, and the ditches either became unusable due to disrepair, or were used only sporadically and without clear claim of right.

In the ruling leading to O'Neill I, the trial court, on May 11, 1987, ruled that there had been nonuse of the water rights from June 24, 1912, and that the rights had been abandoned (the 1987 judgment) and therefore O'Neill, the present owner of the land which had been served by the ditch rights, did not possess any such rights. We affirmed this conclusion in O'Neill I, 770 P.2d 1231.

On March 30, 1990, about one year after our decision in O'Neill I, O'Neill filed a C.R.C.P. 60(b)(5) motion, seeking relief from the judgment because of newly discovered evidence (the 1990 C.R.C.P. 60(b)(5) motion). After considering his submissions, the water court, on June 25, 1990, denied O'Neill's motion, holding that the evidence could have been discovered prior to trial by using reasonable diligence, or, alternatively, that the evidence would not have changed the result of the trial. This court agreed, and affirmed the water court's denial of the 1990 C.R.C.P. 60(b)(5) motion. O'Neill II, 817 P.2d 500. We declined to impose sanctions on O'Neill, because we could not conclude that O'Neill's argument was "totally devoid of 'rational argument based on the evidence or law.' Mission Denver Co. v. Pierson, 674 P.2d 363, 366 (Colo.1984)." O'Neill II, 817 P.2d at 507 n. 9.

O'Neill filed a C.R.C.P. 60(b)(2) motion on March 16, 1992, four months and twenty days after the mandate in O'Neill II issued, almost three years to the day after this court's decision in O'Neill I, and slightly more than four years and ten months after the water court entered its judgment and decree of abandonment (the 1992 C.R.C.P. 60(b)(2) motion). In this motion, O'Neill challenged four photographic exhibits, which were used during the testimony of Pueblo Board of Water Works' and Twin Lakes Reservoir and Canal Company's witness Robert Harrison in the first phase of the trial in October 1986, but not entered into evidence until the trial resumed in March 1987. ¹ O'Neill claimed that the photographs were falsely and fraudulently identified as being of the Cache Creek Ditch when, O'Neill alleges, the photographs were actually of the Arlington Ditch. The water court ruled that the motion was untimely, and denied the motion. This appeal followed.

II.

The initial issue before us is the timeliness of the 1992 C.R.C.P. 60(b)(2) ² motion. O'Neill, both in this court, and below, argues a number of reasons why the motion was timely. O'Neill argues that the six-month time limit for C.R.C.P. 60(b)(2) motions is tolled pending appeal. O'Neill also argues that his 1992 C.R.C.P. 60(b)(2) motion is not subject to the six-month time limit because it is an "independent action" or that there was a "fraud upon the court," both of which are exceptions to the Rule's time limitation. None of these reasons has merit.

A.

First, O'Neill argues that the 1992 C.R.C.P. 60(b)(2) motion was timely because the six-month time to file such a motion was tolled pending his appeal of the water court's denial of the 1990 C.R.C.P. 60(b)(5) motion. O'Neill contends that tolling applies because the water court lacked jurisdiction over a C.R.C.P. 60(b)(2) motion while his second appeal was pending. He also argues in this court for the first time that his 1992 C.R.C.P. 60(b)(2) motion is attacking the validity of the water court's order with regard to the 1990 C.R.C.P. 60(b)(5) motion, and not the 1987 judgment, except incidentally.

While the appeal in O'Neill II (regarding O'Neill's 1990 C.R.C.P. 60(b)(5) motion to set aside the verdict because of newly discovered evidence) was pending, O'Neill moved to supplement his appellate brief in this court, alleging that, on December 13, 1990, while examining the record, he discovered that the four photographs did not represent sites on the Cache Creek Ditch. O'Neill did not mention "fraud" in that motion, nor did he suggest that such alleged fraud undermined the validity of the water court's ruling on the 1990 C.R.C.P. 60(b)(5) motion. O'Neill's motion to supplement his brief was denied.

The motion that is the source of this appeal alleges the same facts as O'Neill's motion to supplement his opening brief in O'Neill II. O'Neill advances only a different legal theory, i.e., fraud instead of newly discovered evidence. O'Neill does not assert in this court that his 1992 C.R.C.P. 60(b)(2) motion is timely with respect to the water court's 1987 judgment of abandonment. Indeed, O'Neill's motion could be timely only if it were truly directed at the water court's June 25, 1990 denial of his 1990 C.R.C.P. 60(b)(5) motion and if the time to file such a motion is tolled pending an appeal. Neither pillar of O'Neill's argument can bear the weight of much scrutiny.

Contrary to O'Neill's assertion, his 1992 C.R.C.P. 60(b)(2) motion is clearly directed toward the original 1987 judgment. O'Neill's convoluted theory is that his 1992 C.R.C.P. 60(b)(2) motion was directed to the judge's order denying his 1990 C.R.C.P. 60(b)(5) motion because the water court's conclusion that the "newly discovered evidence" would not have changed the trial's outcome was "tainted" by the "fraudulently" identified photographs. O'Neill's original motion filed in the water court, however, belies his argument that the motion was directed against the water court's order denying his 1990 C.R.C.P. 60(b)(5) motion. O'Neill's complaint in the 1992 C.R.C.P. 60(b)(2) motion has to do with the photographs which purported to be of the Cache Creek Ditch, but the relief he requested was from the 1987 judgment, not from the denial of his previous 1990 C.R.C.P. 60(b)(5) motion.

Furthermore, O'Neill fails to realize that the standard he must meet to prevail in this motion, if it is truly directed toward the water court's ruling on the 1990 C.R.C.P. 60(b)(5) motion, is that the alleged fraud somehow tainted the discretion of the court in denying the 60(b)(5) motion. That is, O'Neill's burden here is not a preponderance of the evidence, as it was at the original trial, or even that the "newly discovered evidence" could not have been discovered earlier, was material, and probably would have changed the result. His burden, if we are to take him at his word, is to show that Harrison's allegedly perjured testimony was willfully and purposely given, that it was material and probably controlled the result of the ruling on O'Neill's 1990 C.R.C.P. 60(b)(5) motion (that is, that the "fraud" probably would have changed the water court's conclusion that the "newly discovered evidence" would not have probably changed the result at trial, a decision resting in the discretion of the water court), and that O'Neill could not have discovered the falsity of the testimony by reasonable diligence in time to offset it while the 1990 C.R.C.P. 60...