Martin v. Arapahoe County Court

COLORADO COURT OF APPEALS 2016COA154

Court of Appeals No. 15CA1218
Arapahoe County District Court No. 15CV30232
Honorable Kurt A. Horton, Judge

Larry W. Martin,

Petitioner-Appellant,

v.

Arapahoe County Court; Honorable Christina Apostoli; and Honorable Bonnie
Heather McLean,

Respondents-Appellees.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE RICHMAN
Bernard and Fox, JJ., concur

Announced October 20, 2016

Azizpour Donnelly, LLC, Katayoun A. Donnelly, Denver, Colorado, for
Petitioner-Appellant

Cynthia H. Coffman, Attorney General, Sueanna P. Johnson, Assistant
Attorney General, Denver, Colorado, for Respondents-Appellees
¶1 Petitioner, Larry W. Martin, filed this C.R.C.P. 106(a)(4) action

in district court against respondents, the Arapahoe County Court,

Magistrate Christina Apostoli, and former Magistrate Bonnie

McLean, seeking review of a temporary civil protection order entered

against him in county court. The district court dismissed the case

for lack of subject matter jurisdiction. We conclude that the district

court correctly dismissed the case because a civil protection order is

not a final decision reviewable under C.R.C.P. 106, and under the

circumstances in this case, Martin had other adequate remedies

provided by law. Therefore, we affirm the dismissal.

I. Background

¶2 On November 26, 2014, Martin’s business acquaintance, L.O.,

filed a complaint for a civil protection order against him in county

court, claiming that Martin was stalking her. The complaint alleged

that Martin had sent L.O., her husband, her brother, and her

sister-in-law over seventy e-mails from thirteen different e-mail

addresses in which he professed his love for her and falsely claimed

she was divorcing her husband and having an affair. L.O. also

asserted that Martin’s e-mails described events he could have

known about only by observing her activities.

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¶3 After an ex parte hearing the same day, the county court

entered a temporary civil protection order pursuant to section

13-14-104.5, C.R.S. 2016. In its order, the county court found,

based on L.O.’s testimony, that Martin constituted a credible threat,

and that an imminent danger existed to the life and health of L.O.

The temporary order required Martin to stay at least 150 yards

away from L.O. and her home. The county court set a hearing for

December 10, 2014, to determine whether the temporary order

should be made permanent, and it issued a citation ordering Martin

to appear on that date.

¶4 Martin appeared with counsel on December 10 and requested

a continuance. The court reset the permanent order hearing for

December 30, 2014, and continued the temporary order. On the

morning of the December 30 hearing, Martin filed a motion to

vacate the temporary order and dismiss L.O.’s complaint, arguing

that (1) the statutory requirements for issuing a temporary civil

protection order were not met and (2) the statutes governing

temporary and permanent civil protection orders were

unconstitutional. At the hearing, the county court denied the

motion to vacate the temporary order, but, at the urging of Martin,

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 it continued the hearing on the permanent order to allow briefing

from the Attorney General’s office regarding the constitutionality of

the statutes. It extended the temporary order and reset the

permanent order hearing for February 26, 2015.

¶5 Before the February 26 hearing, however, Martin filed this

action in district court, naming as defendants the Arapahoe County

Court and judges of that court and seeking review of the temporary

protection order under C.R.C.P. 106(a)(4). In his complaint, Martin

alleged that the county court exceeded its jurisdiction in issuing the

temporary order because the evidence before the county court did

not demonstrate imminent danger to L.O.’s life or health.1 The

county court stayed the protection order proceedings and extended

the temporary order pending the resolution of the C.R.C.P. 106

action.

¶6 The county court defendants then moved to dismiss the

C.R.C.P. 106 action for lack of subject matter jurisdiction, arguing

1Martin also alleged that the county court failed to comply with
certain requirements for issuing an ex parte temporary restraining
order under C.R.C.P. 65(b). However, the temporary civil protection
order in this case was issued under section 13-14-104.5, C.R.S.
2016, and Martin does not argue on appeal that C.R.C.P. 65(b)
applies to such orders.

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 that (1) the temporary order was not a “final decision” reviewable

under C.R.C.P. 106 and (2) Martin had other adequate remedies

because he could challenge the temporary order at the permanent

order hearing and appeal a permanent order if one was entered.

¶7 After briefing, the district court granted the motion to dismiss

“for the reasons argued by the movant.” This appeal followed.

II. Discussion

¶8 Martin contends that the district court erred in ruling that it

lacked subject matter jurisdiction to review the temporary civil

protection order under C.R.C.P. 106(a)(4). We disagree.

A. Standard of Review

¶9 Where, as here, the facts are undisputed and the jurisdictional

determination presents a question of law, we review the issue of

subject matter jurisdiction de novo. Hendricks v. Allied Waste

Transp., Inc., 2012 COA 88, ¶ 10.

B. C.R.C.P. 106(a)(4)

¶ 10 C.R.C.P. 106(a)(4) authorizes district court review where a

lower judicial body has “exceeded its jurisdiction or abused its

discretion, and there is no plain, speedy and adequate remedy

otherwise provided by law.”

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¶ 11 A complaint seeking review under C.R.C.P. 106(a)(4) may be

filed only after the judicial body has issued a final decision on the

matter at issue. See C.R.C.P. 106(b) (complaint seeking review

under C.R.C.P. 106(a)(4) shall be filed “not later than 28 days after

the final decision of the body or officer”); Buck v. Park, 839 P.2d

498, 500 (Colo. App. 1992) (complaint must be filed within thirty

days under former version of rule). The filing requirements of

C.R.C.P. 106(b) are jurisdictional in nature. Citizens for

Responsible Growth v. RCI Dev. Partners, Inc., 252 P.3d 1104, 1106

(Colo. 2011).

¶ 12 A final decision is one that “ends the particular action in

which it is entered, leaving nothing further to be done to completely

determine the rights of the parties.” Id. at 1106-07. Whether a

judicial decision is “final” for purposes of C.R.C.P. 106(b)

“necessarily depends upon the scope and nature of the proceeding

and rights at issue.” Id. at 1107.

¶ 13 A final decision for purposes of C.R.C.P. 106(b) review is not

synonymous with a final judgment for purposes of appellate review.

In the context of criminal cases, divisions of this court have held

that a C.R.C.P. 106(a)(4) complaint filed before a final judgment “is

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 appropriate to protect certain rights that would be significantly

undermined if a party were required to proceed to trial prior to

obtaining review.” Hills v. Westminster Mun. Court, 215 P.3d 1221,

1224 (Colo. App. 2009) (reviewing alleged speedy trial violation),

aff’d, 245 P.3d 947 (Colo. 2011); accord Kane v. Cty. Court, 192

P.3d 443, 444 (Colo. App. 2008) (reviewing trial judge’s denial of a

motion to recuse); see also Byrd v. Stavely, 113 P.3d 1273, 1275-76

(Colo. App. 2005) (reviewing trial court’s ruling that the defendants

were not entitled to a jury trial).

¶ 14 Nevertheless, C.R.C.P. 106 review is extraordinary in nature,

and it is not warranted where an adequate alternative remedy exists

under ordinary appellate procedures or other statutory avenues of

review. See State v. Dist. Court, 802 P.2d 473, 476-77 (Colo. 1990);

Kirbens v. Martinez, 742 P.2d 330, 333 (Colo. 1987).

¶ 15 No published Colorado appellate decision has addressed

whether a county court’s entry of a temporary civil protection order

under section 13-14-104.5 is reviewable under C.R.C.P. 106(a)(4).

C. Civil Protection Order Statutes

¶ 16 Section 13-14-104.5(1)(a) authorizes county courts to issue

temporary or permanent civil protection orders for several

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 enumerated purposes, including to enjoin stalking.

§ 13-14-104.5(1)(a)(V).

¶ 17 The legislative declaration to the article governing civil

protection orders states:

(1) The general assembly hereby finds that the
issuance and enforcement of protection orders
are of paramount importance in the state of
Colorado because protection orders promote
safety, reduce violence and other types of
abuse, and prevent serious harm and death.

...

(4) . . . [T]he general assembly finds and
declares that stalking is a dangerous, high-risk
crime that frequently escalates over time and
that sometimes leads, tragically, to sexual
assault or homicide. . . . While stalking
behaviors may appear innocuous to outside
observers, the victims often endure intense
physical and emotional distress that affects all
aspects of their lives and are more likely than
others to express anxiety, depression, and
social dysfunction.

§ 13-14-100.2, C.R.S. 2016.

¶ 18 Section 13-14-104.5(4) requires the court to set a hearing on a

request for a temporary civil protection order “at the earliest

possible time” and provides that the hearing may be ex parte. The

court may issue a temporary civil protection order upon a finding

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 that “an imminent danger exists to the life or health of one or more

persons.” § 13-14-104.5(7)(a).

¶ 19 If a temporary protection order is issued, the court must issue

a citation “commanding the respondent to appear before the court

at a specific time and date and to show cause, if any, why said

temporary civil protection order should not be made permanent.”

§ 13-14-104.5(8). The return date must be no more than fourteen

days after the date of the temporary order. § 13-14-104.5(10).

¶ 20 At the permanent order hearing, the court may make the

temporary order permanent, or enter a permanent order on different

terms, finding that the respondent “has committed acts constituting

grounds for issuance of a civil protection order and that unless

restrained will continue to commit such acts or acts designed to

intimidate or retaliate against the protected person.”

§ 13-14-106(1)(a), C.R.S. 2016. A finding of “imminent danger” is

not required at this stage. Id.; In re Marriage of Fiffe, 140 P.3d 160,

162 (Colo. App. 2005). The grounds for the issuance of a

permanent protection order are those set forth in section

13-14-104.5. The court may vacate the temporary order if the

statutory requirements are not met. Alternatively, the court may

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 continue the permanent order hearing and extend the temporary

protection order for good cause, if both parties are present and

agree to the continuance. § 13-14-106(1)(b).

D. Analysis

¶ 21 We conclude that the temporary civil protection order entered

against Martin was not subject to district court review in a C.R.C.P.

106 action.

¶ 22 First, a temporary protection order issued under section

13-14-104.5 is not the county court’s “final decision” on a plaintiff’s

request for a civil protection order. Section 13-14-104.5 merely

permits a court to make an initial determination as to whether an

imminent danger exists to the person seeking protection, and to

issue a temporary protection order based on that finding. However,

the temporary protection order is not a final determination of the

rights of the parties. See Citizens for Responsible Growth, 252 P.3d

at 1106-07. The statute contemplates that a final ruling regarding

the plaintiff’s entitlement to a civil protection order, and the terms

of the order, will be made at the permanent order hearing. See

§ 13-14-106(1)(a). Thus, we conclude that the temporary protection

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 order is not a final decision subject to review in a C.R.C.P. 106

action.

¶ 23 Second, the permanent order hearing and ordinary appellate

procedures provide adequate alternative remedies for challenging a

temporary restraining order. The permanent protection order

hearing gives the respondent a prompt opportunity to challenge the

court’s initial ex parte findings and raise any jurisdictional or

procedural deficiencies. Any permanent order entered by the

county court may then be appealed. We conclude that these

procedures provide a “plain, speedy[,] and adequate remedy,” which

precludes review of a temporary protection order under C.R.C.P.

106(a)(4).

¶ 24 In this case, Martin sought to challenge the county court’s

initial finding of “imminent danger” by filing a C.R.C.P. 106 action.

We conclude that the permanent order hearing provided an

adequate opportunity to challenge the evidence supporting that

initial determination. Although a different legal standard applies to

permanent protection orders, Martin could nevertheless have raised

this issue during the hearing in arguing that the temporary order

should be vacated and no permanent order should be entered.

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 Thus, Martin’s challenge was not properly the subject of a C.R.C.P.

106 action.

¶ 25 C.R.C.P. 106 review is extraordinary in nature, and allowing

respondents to challenge temporary restraining orders in this

manner would circumvent the statutory procedures governing civil

protection orders and lead to unnecessary delay. Indeed, by filing

this C.R.C.P. 106 action, Martin has extended the duration of the

temporary order far beyond the fourteen days within which he could

have challenged the order under the statutory procedures set forth

in section 13-14-104.5.

¶ 26 In addition, we are not persuaded by Martin’s reliance on Stull

v. District Court, 135 Colo. 86, 308 P.2d 1006 (1957), and

Intermountain Rural Electric Association v. District Court, 160 Colo.

128, 414 P.2d 911 (1966). In Stull, the supreme court applied a

prior version of C.R.C.P. 106 to review a temporary restraining

order governed by C.R.C.P. 65(b). 135 Colo. at 92-94, 308 P.2d at

1010. The supreme court held that the district court had exceeded

its jurisdiction by entering an order without complying with any of

the requirements of C.R.C.P. 65(b), and that no plain, speedy, and

adequate remedy existed apart from C.R.C.P. 106 review. Id.

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 Similarly, the supreme court held in Intermountain that a temporary

restraining order that has been entered without jurisdiction was

void because it did not comply with C.R.C.P. 65(b). 160 Colo. at

133-34, 414 P.2d at 913-14. Neither case involved a temporary

protection order issued under section 13-14-104.5, which provides

statutory procedures for promptly addressing the challenges that

Martin sought to raise in this C.R.C.P. 106 action. Accordingly, we

conclude that Intermountain and Stull are inapposite.

¶ 27 Finally, we disagree with Martin’s contention that the county

court was lacking jurisdiction to enter the temporary protection

order because there was not sufficient evidence of an imminent

danger to L.O. We do not read as jurisdictional the statutory

provision stating that “[a] temporary civil protection order may be

issued if the . . . magistrate finds that . . . an imminent danger

exists to the life or health of one or more persons.”

§ 13-14-104.5(7)(a). Insufficient evidence of a fact necessary to

enter an order or judgment does not generally deprive a court of

jurisdiction to hear the case. Martin cites no Colorado authority

suggesting otherwise.

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¶ 28 Because the temporary protection order entered against

Martin was within the court’s jurisdiction and was not a final

decision, and adequate alternative remedies existed for challenging

the order, we conclude that the district court lacked subject matter

jurisdiction to review the temporary restraining order under

C.R.C.P. 106(a)(4).

III. Conclusion

¶ 29 The judgment is affirmed.

JUDGE BERNARD and JUDGE FOX concur.

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