Sumler v. District Court, City and County of Denver

• Decision Date: 30 January 1995
• Docket Number: No. 94SA193,94SA193
• Parties: Steve C. SUMLER, Petitioner, v. The DISTRICT COURT, CITY AND COUNTY OF DENVER, and The Honorable Edward A. Simons, Respondents.
• Court: Colorado Supreme Court

Page 50

889 P.2d 50

Steve C. SUMLER, Petitioner, v. The DISTRICT COURT, CITY AND COUNTY OF DENVER, and The

Honorable Edward A. Simons, Respondents.

No. 94SA193.

Supreme Court of Colorado,

En Banc.

Jan. 30, 1995.

Nathan Davidovich & Associates, Nathan Davidovich, Steven W. Moore, Denver, for petitioner.

Kirkland & Ellis, Bruce A. Featherstone, Daniel K. Frey, Denver, for Camp Coast to Coast, Inc.

Justice ERICKSON delivered the Opinion of the Court.

This is an original proceeding in the nature of mandamus, pursuant to C.A.R. 21, which seeks to reinstate a default judgment obtained by the plaintiff, Steve C. Sumler, against the defendant, Camp Coast to Coast, Inc., and to vacate an order for a trial on the merits. ¹ We issued a rule to show cause and now discharge the rule.

I

In September 1992, the plaintiff brought a civil action for damages against the defendant for wrongful termination of employment in the District Court for the City and County of Denver. ² Both parties were represented by counsel. The case was assigned to Denver District Judge Robert S. Hyatt in the civil division.

The plaintiff submitted interrogatories to the defendant in November 1992. In March 1993, after the defendant failed to answer the interrogatories, the plaintiff filed a motion to compel discovery. John Doe did not submit a response on behalf of defendant to the plaintiff's motion. On April 19, 1993, Judge Hyatt granted the plaintiff's motion to compel discovery, and ordered the defendant to comply within ten days after receipt of the order. John Doe did not notify the defendant of the order and did not comply with the order for discovery. The plaintiff filed a C.R.C.P. 37 motion for sanctions. ³

The defendant was not advised of the motion for sanctions and John Doe neither complied with the discovery order nor responded to the motion for sanctions, and failed to file the disclosure certificate required by C.R.C.P. 16(a). ⁴ On May 11, 1993, Judge Hyatt ordered:

Accordingly, Defendant's Counterclaim is dismissed and judgment is entered in favor of Plaintiff and against Defendant as to liability under the first through sixth claims for relief of the Complaint. Judgment will be rendered following a hearing to determine the proper amount of damages. C.R.C.P. Rule 37(b)(2)(C).

Further, Plaintiff is awarded attorney's fees and costs for time spent in preparation of the Motion for Sanctions.

On May 19, 1993, John Doe filed a motion to set aside the default entered against the defendant based upon a general allegation of mistake, inadvertence, and excusable neglect. The motion did not specify whether relief was sought under C.R.C.P. 55(c) or C.R.C.P. 60(b), but relied on the construction of C.R.C.P. 60(b) in Petrini v. Sidwell, 38 Colo.App. 454, 558 P.2d 447 (1976). The motion alleged that:

Pursuant to request of Defendant, this counsel [John Doe] participated on behalf of certain officers and employees of the company in negotiating termination benefits. Counsel discussed the fact that there may be a conflict for counsel in representing both the company and the resigning officers at the same time. Accordingly, this counsel ceased work on certain lawsuits that were pending including the above lawsuit and intended to pick up that work again after issues had been resolved with departing employees.

John Doe supported the defense motion with an affidavit which averred that:

3. During the time that we were attempting to obtain this information, i.e. the first few months of 1993, there occurred a major reorganization of the company which resulted in transfer, dismissal and resignation of many officers and employees. Some of these officers and employees were individuals that the undersigned had worked with as a part of my relationship with [the defendant].

....

5. The undersigned was asked to represent some of the departing officers and employees in these negotiations with the company. I advised the company and these officers and employees that I would have a conflict in representing both the company and the employees during such negotiations. The company elected to waive any such conflict and requested that I continue these negotiations....

On June 16, 1993, Judge Hyatt denied the defendant's motion to set aside the default. On September 7, 1993, John Doe filed a motion to reconsider the denial of the motion to set aside the default against the defendant based on the lack of evidence of defendant's willful or intentional violation of the court's rules and orders. The motion to reconsider set forth facts that refuted the grounds asserted in John Doe's May 19, 1993, motion to set aside the default, and stated, "Defendant ... was not responsible for the delay of providing Responses to Requests For Production of Documents and Interrogatories and should not suffer the brunt of the sanctions of this Court. The fault lies with Defendant's counsel." ⁵ Judge Hyatt denied the motion to reconsider on September 28, 1993.

The hearing on damages was scheduled for September 1993. Judge Hyatt conducted the hearing, and heard testimony on September 10 and September 29, 1993. The defendant was represented by John Doe at the hearing. On October 21, 1993, a default judgment for the plaintiff was entered in the amount of $797,137 for compensatory damages, $5,000 as exemplary damages, $14,476 for attorney fees, and costs and interest. Judge Hyatt found that the defendant had engaged in the "repeated deliberate and willful disregard of the previous orders of th[e] Court and the Colorado Rules of Civil Procedure."

On November 5, 1993, John Doe met with corporate counsel for the defendant. According to the affidavits submitted by the defendant, John Doe disclosed his participation in the litigation which resulted in a default judgment against the defendant. ⁶ On January 1, 1994, Judge Hyatt was transferred from the civil division to the criminal division of the court, and was succeeded in the civil division by Judge Edward A. Simons.

The defendant obtained new counsel who entered an appearance on November 12, 1993, and filed a motion for relief from judgment and to set aside default judgment on January 18, 1994. ⁷ The January 18, 1994, motion to set aside the default judgment claimed:

1. ... [D]efendant is entitled to relief pursuant to Rule 60(b) under the standards of Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986).

2. Defendant seeks relief from judgment pursuant to Rule 60(b) on grounds of excusable neglect.... Defendant never knew of, nor participated in, said misconduct. [John Doe's] misconduct amounted to gross negligence sufficient to constitute excusable neglect on the part of the defendant.

3. ... [D]efendant has set forth factual averments which are more than sufficient to show the existence of meritorious defenses to the plaintiff's allegations.

4. ... [T]he equities in this matter strongly favor setting aside the default judgment and allowing defendant to respond to the plaintiff's allegations in a trial on the merits.

The motion was supported by affidavits indicating that John Doe withheld material information from the defendant concerning the litigation, and that the defendant never knew of or participated in John Doe's failure to make or comply with the requests for discovery and for sanctions. The memorandum supporting the January 18, 1994, motion claimed that, "at no time did the [defendant] instruct [John Doe] to discontinue his representation in this case, or in any way limit [John Doe's] full and active representation of the [defendant] in this matter."

In an order dated March 17, 1994, Judge Simons vacated the October 21, 1993, default judgment and the May 11, 1993, default, and ordered a trial on the merits. The plaintiff filed a motion to reconsider, which Judge Simons denied on May 5, 1994. On May 11, 1994, pursuant to C.A.R. 21, plaintiff filed a petition for writ of prohibition and mandamus and a brief supporting the petition. ⁸

The plaintiff contends that Judge Simons lacked jurisdiction to hear the January 18, 1994, motion to vacate the default judgment. Alternatively, the plaintiff asserts that even if Judge Simons had jurisdiction, Judge Simons abused his discretion by vacating the default judgment. Based upon the record before us, we disagree.

II Jurisdiction

A

The plaintiff contends that Judge Simons lacked jurisdiction to determine the defendant's motion to set aside the default judgment entered by Judge Hyatt. We disagree. A second district court judge may rule on a matter that was previously ruled upon by another judge of the same district if "[s]ufficient new facts [are] alleged in the second motion to allow the second judge to enter a different ruling than that of the first judge, in the same manner that judge could have, had he been apprised of the new facts." Jouflas v. Wyatt, 646 P.2d 946, 947 (Colo.App.1982); see Moon v. Platte Valley Bank, 634 P.2d 1036, 1037 (Colo.App.1981). ⁹ A successor judge may vacate a default judgment when the original judge would have had an adequate legal basis to do so. Sunshine v. Robinson, 168 Colo. 409, 414-15, 451 P.2d 757, 760 (1969).

The January 18, 1994, motions are factually and legally different from the motion brought before Judge Hyatt on May 19, 1993, to set aside the default and the September 7, 1993, motion to reconsider. Because the grounds for relief asserted in the January 18, 1994, motions differed from those in the motions before Judge Hyatt, Judge Simons had jurisdiction to consider the motions to set aside the default judgment and the default. ¹⁰

B

The plaintiff also claims that the motion to set aside the default judgment was not timely filed. We do not agree. C.R.C.P. 60(b) provides the procedure for setting aside a default judgment and states:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake,...