Wood Bros. Homes, Inc. v. City of Fort Collins, 81CA0013

• Decision Date: 31 March 1983
• Docket Number: No. 81CA0013,81CA0013
• Citation: 670 P.2d 9
• Parties: WOOD BROS. HOMES, INC., a Delaware corporation, Plaintiff-Appellant, v. The CITY OF FORT COLLINS, Colorado, a Municipal corporation, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 9

670 P.2d 9

WOOD BROS. HOMES, INC., a Delaware corporation, Plaintiff-Appellant, v. The CITY OF FORT COLLINS, Colorado, a Municipal corporation Defendant-Appellee.

No. 81CA0013.

Colorado Court of Appeals Div. I.

March 31, 1983.

Rehearing Denied April 28, 1983.

Certiorari Denied Sept. 26, 1983.

George Alan Holley & Associates, Scott D. Albertson, Golden, for plaintiff-appellant.

March, Myatt, Korb, Carroll & Brandes, Mark L. Korb, Fort Collins, for defendant-appellee.

ENOCH, Chief Judge.

Plaintiff, Wood Brothers Homes, Inc., appeals a judgment in favor of defendant, City of Fort Collins, following a trial to the court on issues arising out of a subdivision developed by plaintiff in Fort Collins. We reverse.

Prior to the trial court's entry of its written findings of fact and conclusions of law, counsel for plaintiff filed a motion pursuant to C.R.C.P. 97 for disqualification of the trial judge. The motion was supported by an affidavit which alleged, inter alia, that the trial judge, before appointment to the bench, was a member of the Fort Collins Planning and Zoning Commission (the Commission) during the period when one of the plats which forms the basis of this dispute was considered and reviewed by the Commission. The affidavit further alleged that at the time the suit was initiated, the trial judge, as a member of the Commission, was involved in the decision-making regarding actions being challenged by plaintiff in the instant case. The trial judge denied plaintiff's motion, on the basis that he had no recollection of plaintiff's matters before the Commission.

Plaintiff contends that the denial of its motion for disqualification was erroneous. We agree.

C.R.C.P. 97 provides in part:

"A judge shall be disqualified in an action in which he is interested or prejudiced, or has been of counsel for any party, or is or has been a material witness, or is so related or connected with any party or his attorney as to render it improper for him to sit on the trial, appeal, or other proceeding therein."

The purpose of this rule is to ensure a fair and impartial hearing of the issues involved. Board of County Commissioners v. Blanning, 29 Colo.App. 61, 479 P.2d 404 (1970). In order to effectuate this purpose, it is required that the interest of the judge must relate to the subject matter of the litigation. Kubat v. Kubat, 124 Colo. 491, 238 P.2d 897 (1951).

Here, according to the affidavit, the trial judge served on the Commission between June 1976 and May 1978. During that time period, the Commission reviewed Woodwest Filing No. 6, a plat upon which the City eventually imposed certain conditions for approval which are contested herein in plaintiff's first claim for relief. Moreover, all of plaintiff's claims for relief challenge various actions, agreements, and ordinances of defendant which were undertaken, adopted, or enforced against plaintiff during the period in which the trial judge served on the Commission, an agency of defendant.

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