State v. Cb Serv. Corp..

• Decision Date: 16 September 2010
• Citation: 252 P.3d 7
• Docket Number: 08CA2092
• Parties: STATE of Colorado, ex rel. John W. SUTHERS, Attorney General, and Laura E. Udis, Administrator, Uniform Consumer Credit Code, Plaintiffs–Appellants and Cross–Appellees,v.CB SERVICES CORPORATION, Defendant,andConcerning Paul Chessin, Senior Assistant Attorney General, Appellant and Cross–Appellee,andMichael W. Hicks, Appellee and Cross–Appellant.
• Court: Colorado Court of Appeals

252 P.3d 7

STATE of Colorado, ex rel. John W. SUTHERS, Attorney General, and Laura E. Udis, Administrator, Uniform Consumer Credit Code, Plaintiffs–Appellants and Cross–Appellees,

v.CB SERVICES CORPORATION, Defendant,andConcerning Paul Chessin, Senior AssistantAttorney General, Appellant and Cross–Appellee,andMichael W. Hicks, Appellee and Cross–Appellant.

No. 08CA2092.

Colorado Court of Appeals, Div. VI.

May 27, 2010.Rehearing Denied Sept. 16, 2010.*

John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Jan M. Zavislan, Deputy Attorney General, Denver, Colorado, for Plaintiffs–Appellants; Cross–Appellees; Appellant; and Cross–Appellee.Law Office of James E. Nesland, LLC, James E. Nesland, Aurora, Colorado; Cooley Godward Kronish LLP, Jeffrey A. Smith, Broomfield, Colorado, for Appellee and Cross–Appellant.Opinion by Judge BERNARD.

This appeal arises from an action taken by the Attorney General(the State) to enforce the Uniform Commercial Credit Code and the Colorado Consumer Protection Act against CB Services Corporation(CBSC).We conclude that we lack jurisdiction over the issues raised in this appeal because the trial court has not entered final, appealable orders concerning them.Therefore, we dismiss the appeal and the cross-appeal without prejudice.

I.Background

In a previous interlocutory appeal, a division of this court addressed whether Indian tribal sovereign immunity applied to two Internet companies.CBSC, which operated under the trade name Cash Advance, was one of them.State ex rel. Suthers v. Cash Advance,205 P.3d 389(Colo.App.2008)( cert. grantedApr. 13, 2009).

As pertinent here, in January 2005, the State issued an administrative subpoena to CBSC, requiring it to produce, among other items, documents describing its corporate structure and detailing its lending activities in Colorado.In February 2005, at the State's request, the trial court issued an order enforcing the administrative subpoena.

Because CBSC did not respond to the subpoena, the State asked the trial court, in June 2005, to issue a citation to CBSC and its “officers, directors, shareholders, members, principals, servants, employees, agents, attorneys, successors, heirs, and assigns, including its president, sole executive officer, and director James A. Fontano,” to appear and show cause why they should not be held in contempt for failing to comply with the court's order enforcing its administrative subpoena.At the time, the State indicated that Mr. Fontano was CBSC's sole officer and director.

Neither CBSC nor Mr. Fontano appeared at the contempt hearing, which was held in March 2007.At that hearing, and at the State's request, the trial court issued a warrant for the arrest of Michael Hicks, who, the State had learned, was CBSC's sole officer and director.The trial court stayed the issuance of that warrant until the State could provide adequate identifying information for Mr. Hicks to be included in the warrant.

The State supplied that information in March 2008, the trial court issued the warrant, and Mr. Hicks was arrested in Missouri in April 2008.He promptly filed a motion to quash the warrant, stating that he had not received notice of the administrative subpoena, the order enforcing the administrative subpoena, the contempt citation, or the notice of advisement hearing filed in connection with the contempt citation.

After a hearing held in May 2008, the trial court quashed the arrest warrant because Mr. Hicks had not been personally served with the contempt citation.The court determined that the State had violated procedural due process standards and the procedures required by C.R.C.P. 107(c), and that the State had not been candid with the court.However, the court refused Mr. Hicks's request to enter an order stating that he could not in the future be held in contempt for failing to comply with the administrative subpoena should he be properly served with a contempt citation.

In a written order issued in August 2008, the court also entered, under C.R.C.P. 11, joint and several monetary sanctions of $12,500 against the State and the Senior Assistant Attorney General who had handled the contempt proceedings involving Mr. Hicks.The sanctions were imposed to reimburse Mr. Hicks for the attorney fees and costs he incurred in asking the court to quash the arrest warrant.The State, the Senior Assistant Attorney General, and Mr. Hicks agreed that the trial court would stay the enforcement of the sanctions order pending the outcome of this appeal.

The 2008trial court proceedings concerning the State, the Senior Assistant Attorney General, and Mr. Hicks that form the basis for this appeal occurred after State ex rel. Suthers v. Cash Advance was appealed to this court.

The State now raises two claims concerning the 2008 proceedings involving Mr. Hicks.First, it contends that the trial court erred when it quashed the warrant for his arrest.Second, the State and the Senior Assistant Attorney General argue that the trial court's decision to impose sanctions against them was erroneous.

Mr. Hicks filed a cross-appeal.He claims that the trial court should have entered an order vacating the contempt citation and related orders concerning him, including the order requiring compliance with the administrative subpoena.

Given the apparent interlocutory nature of this appeal, we ordered the parties to show cause why we should not dismiss their claims for lack of jurisdiction.

II.General Principles

“It is axiomatic that entry of a final judgment is a prerequisite to the right to prosecute an appeal.”Mission Viejo Co. v. Willows Water Dist.,818 P.2d 254, 258(Colo.1991).In the absence of a final judgment, we may not review interlocutory orders unless a statute or rule grants us that authority.Id.;seeC.A.R. 1(a).Where there is no final judgment, we must take notice, even if the parties have not raised the issue.Hait v. Miller,38 Colo.App. 503, 504, 559 P.2d 260, 261(1977).The final judgment requirement is jurisdictional.Without a final judgment, we must dismiss the appeal.Mission Viejo,818 P.2d at 258.

A final judgment is “one that ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceedings.”People v. Guatney,214 P.3d 1049, 1051(Colo.2009).In deciding the finality of an order, we look to the legal effect of the order rather than to its form.Levine v. Empire Sav. & Loan Ass'n,192 Colo. 188, 189, 557 P.2d 386, 387(1976);Luster v. Brinkman,250 P.3d 664, 666(Colo.App.2010).Thus, for purposes of appeal, an order is final and appealable when it “finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment.”Levine,192 Colo. at 190, 557 P.2d at 387(quotingHerrscher v. Herrscher,41 Cal.2d 300, 304, 259 P.2d 901, 903(1953)).

III.Analysis

A.Issues Raised by the State and the Senior Assistant Attorney General

1.Quashing the Arrest Warrant

The State contends that the trial court erred in quashing the arrest warrant.We conclude that we do not have jurisdiction to resolve this claim in this appeal because this order does not constitute a final, appealable order.

An order enforcing a subpoena pursuant to a special statutory proceeding constitutes a final judgment because it disposes of the proceedings.Bd. of Med. Exam'rs v. Duhon,844 P.2d 1312, 1313(Colo.App.1992).In Duhon, the only relief that an administrative agency requested from the trial court was enforcement of its subpoena against an individual.Id.When the trial court granted that relief, there was nothing more for the trial court to do; the administrative agency's subpoena was enforced; and the individual had to comply with it.Hence, the enforcement order constituted a final judgment.See alsoCharnes v. DiGiacomo,200 Colo. 94, 96, 612 P.2d 1117, 1118(1980)(order denying motion to quash a subpoena appealable);Wells Aircraft Parts Co. v. Allan J. Kayser Co.,118 Colo. 197, 199, 194 P.2d 326, 328(1947)(order denying motion to quash service of summons appealable).

In contrast, “an order to quash, because it does not dispose of the proceedings, does not constitute a final judgment.”Duhon,844 P.2d at 1313.Orders quashing or striking do not qualify as final judgments because they are “simply interlocutory and do not finally resolve the issues in the case.”Colo. State Bd. of Accountancy v. Arthur Andersen LLP,116 P.3d 1245, 1249–50(Colo.App.2005)(discussing why the quashing of a subpoena is not a final judgment).

In a variety of legal contexts, Colorado courts have held that orders to quash or to strike do not qualify as final judgments.People ex rel. Orcutt v. Dist. Court,164 Colo. 385, 393, 435 P.2d 374, 378(1967)(order quashing subpoena was proper subject for original proceeding because, as interlocutory order, it was not a final judgment reviewable by writ of error);Hoen v. Dist. Court,159 Colo. 451, 455, 412 P.2d 428, 430(1966)(order quashing service of process is not a final judgment);Latimer Constr. Co. v. Cram,152 Colo. 533, 534, 383 P.2d 315, 316(1963)(order striking all bench warrants is not a final judgment);Duhon,844 P.2d at 1313(order quashing a subpoena is not a final judgment).

Therefore, because the State appeals the trial court's decision to quash the bench warrant, not to enforce a subpoena, that order is not a final, appealable order.Indeed, the trial court left open the possibility that, in a future proceeding, Mr. Hicks could be held in contempt.

The State argues that it would “pre-judge” the merits of this appeal if it were now to comply with the trial court's procedural requirement of serving Mr. Hicks with a contempt citation, or if it were to restart the discovery process.This argument has no bearing on whether there is a final judgment on this issue, because...