Bennett v. Colorado Department of Revenue

2024 COA 97, 559 P.3d 690

• Court: Colorado Court of Appeals
• Decided: August 22, 2024
• Docket: 24CA0252
• Status: Published

Opinion

SUMMARY

August 22, 2024

2024COA97

No. 24CA0252, Bennett v. Colorado Department of Revenue —

Administrative Law — State Administrative Procedure Act —

Judicial Review — Notice — Process — Service by Mail

In this interlocutory appeal under C.A.R. 4.2, a division of the

court of appeals considers as a matter of first impression whether

the notice provision of section 24-4-106(4), C.R.S. 2023, authorizes

service of process by mail in an action for judicial review of an

agency decision. The division holds that section 24-4-106(4) does

not authorize initial service of process for a judicial review

complaint by mail and reverses the district court.

The division then determines that the plaintiff has shown good

cause for her failure to properly serve process and remands with

instructions to extend the time to serve process for an appropriate

period.

The summaries of the Colorado Court of Appeals published opinions

constitute no part of the opinion of the division but have been prepared by

the division for the convenience of the reader. The summaries may not be

cited or relied upon as they are not the official language of the division.

Any discrepancy between the language in the summary and in the opinion

should be resolved in favor of the language in the opinion.

COLORADO COURT OF APPEALS 2024COA97

Court of Appeals No. 24CA0252

Pueblo County District Court No. 23CV58

Honorable Stephen J. Sletta, Judge

Misty Bennett,

Plaintiff-Appellee,

v.

Colorado Department of Revenue, Division of Motor Vehicles,

Defendant-Appellant.

ORDER REVERSED AND CASE

REMANDED WITH INSTRUCTIONS

Division A

Opinion by JUDGE KUHN

Gomez and Schock, JJ., concur

Announced August 22, 2024

Misty Bennett, Pro Se

Philip J. Weiser, Attorney General, Danny Rheiner, Assistant Attorney General,

Denver, Colorado, for Defendant-Appellant

1

¶ 1 In this interlocutory appeal under C.A.R. 4.2, we consider

whether section 24-4-106(4), C.R.S. 2023, authorizes service of

process by mail in an action for judicial review of an agency

decision. In concluding that it does not, we hold that service of

process for a judicial review action under section 24-4-106(4) is

governed by the Colorado Rules of Civil Procedure. We then

determine that plaintiff, Misty Bennett, has failed to properly serve

defendant, the Division of Motor Vehicles of the Colorado

Department of Revenue (CDOR), but that her failure is excused for

good cause. We therefore reverse the district court’s order finding

service proper, with instructions to extend the time for service of

process for an appropriate period.

I. Background

¶ 2 In September 2023, during a traffic stop, Officer Carlos

Medina determined that Bennett was impaired by alcohol. He

advised her of Colorado’s express consent law and offered her to

take a breath or blood test. Bennett refused both, and as a result,

Officer Medina confiscated her driver’s license and issued her a

notice of revocation.

2

¶ 3 Bennett had a hearing the next month before a hearing officer

for the CDOR. The hearing officer sustained the revocation of her

license for one year. Bennett then timely filed her appeal with the

district court under section 42-2-135, C.R.S. 2023. Bennett filed

her complaint using Judicial Department Form (JDF) 599,

Complaint for Judicial Review (DMV Appeal) (revised May 2018),

1

and completed a certificate of service saying that she had

hand-delivered a copy of the complaint to her county department of

motor vehicles (DMV). Bennett later filed a separate certificate of

service indicating that she had mailed a copy of her complaint to

the CDOR and the Attorney General.

¶ 4 A deputy district attorney then filed a “Notice of Non-Perfected

Appeal Due to Lack of Personal Service” on behalf of the CDOR.

The notice indicated that the deputy district attorney had consulted

with a representative of the Attorney General’s office. After that

consultation, the deputy district attorney agreed to enter a special

1

We take judicial notice of the district court filings in the

underlying case under CRE 201(b). See Schnelle v. Cantafio, 2024

COA 17, ¶ 2 n.1.

3

appearance and advise the court of issues with service of the

complaint.

¶ 5 The district court then issued an order regarding service of

process. It concluded that section 24-4-106(4) authorizes service of

process by first class mail when a party petitions for judicial review

of an agency action. The CDOR moved to certify the court’s order

for interlocutory appeal, the district court granted the motion, and

we accepted the appeal.

II. Appellate Jurisdiction

¶ 6 Before turning to the merits of the CDOR’s appeal, we first

explain why an interlocutory review of the district court’s order is

appropriate.

¶ 7 With limited exceptions, this court has jurisdiction only over

final judgments — that is, judgments that end an action, leaving

nothing further for the district court to do to completely determine

the parties’ rights. Wilson v. Kennedy, 2020 COA 122, ¶¶ 5-7. One

such exception is set forth in section 13-4-102.1(1), C.R.S. 2023,

and C.A.R. 4.2, which allow this court, in its discretion, to review a

nonfinal order in a civil case when the district court certifies, and

we agree, that (1) immediate review may promote a more orderly

4

disposition or establish a final disposition of the litigation; (2) the

order involves a controlling question of law; and (3) that question of

law is unresolved. S. Conejos Sch. Dist. RE-10 v. Wold Architects

Inc., 2023 COA 85, ¶ 11. We conclude that each of these

requirements is satisfied here.

¶ 8 First, our immediate review of whether Bennett has completed

proper service by mail may “establish a final disposition of the

litigation.” C.A.R. 4.2(b)(1). If we were to conclude that service of

process was improper, then her action against the CDOR may be

subject to dismissal. See C.R.C.P. 4(m) (“If a defendant is not

served within 63 days (nine weeks) after the complaint is filed, the

court — on motion or on its own after notice to the plaintiff — shall

dismiss the action without prejudice against that defendant or

order that service be made within a specified time.”).

¶ 9 Second, the question presented to us in this case is a

controlling question of law. Whether a particular question is

controlling depends on the nature and circumstances of the order

being appealed. Affiniti Colo., LLC v. Kissinger & Fellman, P.C.,

2019 COA 147, ¶ 17. We consider a number of factors in making

that decision, including, as relevant here, whether the question may

5

be dispositive of the case and whether addressing the issue would

avoid the risk of inconsistent results in different proceedings. Id.;

see also Indep. Bank v. Pandy, 2015 COA 3, ¶ 10. As noted, the

failure to properly serve process may result in dismissal. And the

CDOR asserts that this question is implicated in more than a

hundred complaints a year for judicial review under section

42-2-135. Cf. Adams v. Corr. Corp. of Am., 264 P.3d 640, 646 (Colo.

App. 2011) (rejecting a question as controlling because, among

other things, it did not “identify parallel litigation that would be

impacted by an interlocutory ruling”).

¶ 10 Lastly, the relevant question is an unresolved question of law.

A question of state law is unresolved if it hasn’t been decided by our

supreme court or determined in a published decision of this court.

C.A.R. 4.2(b)(2). Neither the supreme court nor a published

decision of this court has resolved the exact legal question before

us. Consequently, “the order[] at issue appear[s] to involve an

unresolved question of law.” Tomar Dev., Inc. v. Bent Tree, LLC, 264

P.3d 651, 653 (Colo. App. 2011).

6

¶ 11 Thus, we conclude that our review of the CDOR’s interlocutory

appeal is warranted under section 13-4-102.1(1) and C.A.R. 4.2(b).

We now turn to the merits of the appeal.

III. Service of Process Under Section 24-4-106(4)

¶ 12 The CDOR contends that the district court erred by

determining that section 24-4-106(4) authorizes initial service of

process of complaints for judicial review by mail. We agree.

A. Applicable Law and Standard of Review

¶ 13 We must interpret section 24-4-106(4) to determine whether it

carves out an exception to C.R.C.P. 4’s usual requirements for

service of process. Interpretation of statutes and court rules

involves questions of law, which we review de novo. Gleason v. Jud.

Watch, Inc., 2012 COA 76, ¶ 14.

¶ 14 When interpreting a statute, “we strive to give effect to the

intent of the legislature.” Spahmer v. Gullette, 113 P.3d 158, 162

(Colo. 2005). “[T]o ascertain the legislative intent, we look first to

the plain language of the statute, giving the language its commonly

accepted and understood meaning.” Smith v. Exec. Custom Homes,

Inc., 230 P.3d 1186, 1189 (Colo. 2010) (citation omitted).

Additionally, “[t]he language at issue must be read in the context of

7

the statute as a whole and the context of the entire statutory

scheme.” Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d

932, 935 (Colo. 2010). And we read the statute as a whole and give

consistent, harmonious, and sensible effect to the entire statute.

See id. These principles also apply to our interpretation of court

rules. Gleason, ¶ 16.

¶ 15 A person “whose license has been finally canceled, suspended,

or revoked by or under the authority of the [CDOR] may, within

thirty-five days thereafter, obtain judicial review in accordance with

section 24-4-106.” § 42-2-135(1). Section 24-4-106 provides for

judicial review of agency actions, including a driver’s license

revocation. And its provisions are intended “to assure a plain,

simple, and prompt judicial remedy to persons or parties adversely

affected or aggrieved by agency actions.” § 24-4-106(1).

B. Section 24-4-106(4) Does Not Authorize

Service of Process by Mail

¶ 16 The CDOR contends that the district court misinterpreted

section 24-4-106(4) by finding that the statute authorizes service of

process by mail. The district court concluded that Bennett’s

certificate of service — indicating that she had mailed a copy of the

8

complaint to the CDOR and the Attorney General’s office —

complies with the provisions of section 24-4-106(4). We disagree

with the district court’s interpretation.

¶ 17 The relevant portion of subsection (4) contains the

requirements for service of process:

Every party to an agency action in a

proceeding under section 24-4-105 not

appearing as plaintiff in such action for

judicial review shall be made a defendant;

except that, in review of agency actions taken

pursuant to section 24-4-103, [C.R.S. 2023,]

persons participating in the rule-making

proceeding need not be made defendants.

Each agency conducting a rule-making

proceeding shall maintain a docket listing the

name, address, and telephone number of every

person who has participated in a rule-making

proceeding by written statement, or by oral

comment at a hearing. Any person who

commences suit for judicial review of the rule

shall notify each person on the agency’s docket

of the fact that a suit has been commenced.

The notice shall be sent by first-class certified

mail within fourteen days after filing of the

action and shall be accompanied by a copy of

the complaint for judicial review bearing the

action number of the case. Thereafter, service

of process, responsive pleadings, and other

matters of procedure shall be controlled by the

Colorado rules of civil procedure.

§ 24-4-106(4) (emphasis added).

9

¶ 18 The district court primarily based its interpretation on the

italicized language above.

2

But in doing so, it overlooked the two

previous sentences, which are critical to ascertaining the meaning

of the statute. Section 24-4-106(4) does say that “notice shall be

sent by first-class certified mail within fourteen days after filing of

the action.” However, the reference to “notice” does not refer to

service of process. Instead, it refers to an earlier portion of that

same paragraph requiring a party commencing suit for judicial

review of “a rule-making proceeding” under section 24-4-103 to

“notify each person on the agency’s docket of the fact that a suit

has been commenced.” § 24-4-106(4).

¶ 19 Section 24-4-103, governing rule-making proceedings, is

applicable when “any agency is required or permitted by law to

make rules, in order to establish procedures and to accord

interested persons an opportunity to participate therein.”

§ 24-4-103(1). In a judicial review of an agency rule-making,

“persons participating in the rule-making proceeding need not be

2

The district court also referenced the language of the form that

Bennett used to file her pro se complaint. We address this portion

of the order in Part III.D.

10

made defendants.” § 24-4-106(4). Thus, the plain language of the

notice provision in section 24-4-106(4) is designed to ensure that

notice is given to those nondefendant participants in the

rule-making proceeding who will not automatically be made parties

to the judicial review. Id.

¶ 20 The statute also makes clear that this notice in rule-making

proceedings is not intended to supplant service of process or other

procedural requirements. It notes that after the notice of judicial

review in a rule-making proceeding, “service of process, responsive

pleadings, and other matters of procedure shall be controlled by the

Colorado rules of civil procedure.” Id. This language indicates that

the notice by mail is an extra requirement that only applies to

judicial reviews of rule-making proceedings. However, for all

judicial review actions — regardless of type — the rules of civil

procedure control service of process and subsequent procedure in

the case.

¶ 21 In the case before us, Bennett sought judicial review of her

driver’s license revocation under section 42-2-135, which is not a

challenge to a rule-making proceeding. And the plain language of

section 24-4-106 demonstrates that the legislature did not intend to

11

abrogate the service of process requirements for judicial review of

such an action.

¶ 22 Consequently, we hold that section 24-4-106(4) does not

authorize initial service of process for a judicial review complaint by

mail. The district court erred by concluding otherwise.

C. Bennett’s Service of Process Was

Controlled by C.R.C.P. 4

¶ 23 Absent an exception, Rule 4 controls the service of “all

process.” C.R.C.P. 4(a). In the case before us, Bennett had to

personally serve the CDOR “by delivering a copy [of the summons

and complaint] to the principal officer, chief clerk, or other

executive employee [of the CDOR], and by delivering a copy to the

[A]ttorney [G]eneral.” C.R.C.P. 4(e)(10)(B).

¶ 24 Bennett argues that she accomplished this by hand-delivering

a copy of the complaint to her county DMV and mailing a copy to

the CDOR and Attorney General’s office. However, personal service

of process is proper when it is completed “by any person whose age

is eighteen years or older, not a party to the action.” C.R.C.P. 4(d).

Because Bennett is a party to the action, she could not serve

12

process of her own complaint.

3

See Nelson v. Chittenden, 53 Colo.

30, 37, 123 P. 656, 659 (1912) (reiterating that a litigant cannot

serve their own summons).

¶ 25 Bennett also argues that service was effective because all

parties received copies of her complaint through the mail. But

Rule 4 only authorizes service by mail under sections (f), addressing

substituted service, and (g), addressing other service, neither of

which is applicable here. We therefore conclude that Bennett did

not properly serve the CDOR as required by Rule 4.

3

Bennett argues that this distinction prioritizes procedural

technicalities over substantive fairness. But there are good reasons

for requiring a third party to serve process. For example, it reduces

the chance of conflict between the parties, and it provides for

participation by a neutral third party who could be called to testify

if a party denies having received proper service. See generally

Toenniges v. Drake, 7 Colo. 471, 472-73, 4 P. 790, 791 (1884)

(explaining the necessity of a disinterested and impartial process

server). Regardless, proper service of process is an important part

of invoking the jurisdiction of the courts to bring a lawsuit, Empire

Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 116, 117 P. 1005, 1006

(1911), and Bennett is bound to follow the rules of procedure. See

C.R.C.P. 1; see also Gandy v. Williams, 2019 COA 118, ¶ 8 (noting

we apply the same law and procedural rules to pro se parties as

attorneys).

13

D. Bennett has Good Cause for Failing to

Properly Serve Within the Required Timeframe

¶ 26 Last, the CDOR argues that because Bennett did not comply

with the rules governing service of process before the

sixty-three-day deadline contained in Rule 4(m), the district court

should have dismissed the case. Bennett, in turn, asks us to

consider the broader context of her situation and to permit her case

to move forward. While Bennett did not explicitly request an

extension based on a showing of good cause, “[p]leadings by pro se

litigants must be broadly construed to ensure that they are not

denied review of important issues because of their inability to

articulate their argument like a lawyer.” Johnson v. McGrath, 2024

COA 5, ¶ 10 (quoting Jones v. Williams, 2019 CO 61, ¶ 5). We

interpret Bennett’s argument as asking for an opportunity to fix the

problems with service in her case. We conclude that the

circumstances here constitute good cause to extend the deadline for

Bennett to properly serve process.

¶ 27 Rule 4(m) requires the plaintiff to serve a defendant within

sixty-three days after the complaint is filed. But it also provides

that “if the plaintiff shows good cause for the failure [to serve

14

process within sixty-three days], the court shall extend the time for

service for an appropriate period.” And “the court may — even

without a showing of good cause — ‘order that service be made

within a specified time’ after the deadline.” Taylor v.

HCA-HealthONE LLC, 2018 COA 29, ¶ 47 (quoting C.R.C.P. 4(m)).

¶ 28 Bennett used JDF 599, “Complaint for Judicial Review (DMV

Appeal),” to file her lawsuit. The district court noted in its order

that the “Colorado Judicial Department’s self-help website provides

the following note on use of JDF 599 . . . . Make a copy of this form

for the Division of Motor Vehicles and the Attorney General

(Revenue and Utilities Section) and send it to them by mail.”

¶ 29 Taking judicial notice of the then-existing Colorado Judicial

Branch website under CRE 201(b) confirms this assertion.

4

See

Colo. Jud. Branch, Self Help/Forms, https://perma.cc/53N4-UB8U

(navigate to “Division of Motor Vehicles (DMV) Appeals” and open

popout six, “File and Notify”). In 2023, when Bennett filed her

lawsuit, the “Division of Motor Vehicles (DMV) Appeals” section of

4

The Colorado Judicial Branch implemented a new website during

the pendency of this appeal. We refer in this opinion to the prior

version of the website that existed during Bennett’s appeal to the

district court.

15

the website contained instructions titled “Mail a Copy.” That

section provided addresses for the CDOR and the Attorney

General’s office. It also contained a generic certificate of service

form.

¶ 30 Additionally, the then-existing JDF 599 form itself also

contained a generic certificate of service section showing service

options including e-filing, fax, mail, and hand delivery.

5

To the

extent that the old JDF 599 or the old self-help website indicated

that service of process in a judicial review action can be completed

by mail, they were incorrect. As noted, service of process for this

type of case must be completed by personal service. See

§ 24-4-106(4); C.R.C.P. 4(e)(10)(B).

¶ 31 It appears that both Bennett and the district court

understandably relied, at least in part, on the inaccurate website

5

We note that the inaccuracies in the old website and JDF 599

were corrected during the pendency of this appeal.

16

and JDF 599 information.

6

Under these circumstances, we

conclude that Bennett has shown good cause for not timely

completing personal service on the CDOR under Rule 4(m). On

remand, the district court should extend the time for service for an

appropriate period to allow Bennett to properly serve the CDOR and

Attorney General in accordance with the rules.

IV. Disposition

¶ 32 The district court’s order is reversed, and the case is

remanded with instructions to extend the time for service for an

appropriate period to allow Bennett to complete personal service as

required by section 24-4-106(4) and Rule 4.

JUDGE GOMEZ and JUDGE SCHOCK concur.

6

But we also note that the self-help website contained a legal

disclaimer stating that “[t]hese instructions are for informational

purposes only and do not constitute legal advice about your case. If

you choose to represent yourself, you are bound by the same rules

and procedures as an attorney.” Colo. Jud. Branch, Appeals,

https://perma.cc/S8R7-D8TR.