Continental Bank, N.A. v. Rowe

817 P.2d 620, 15 Brief Times Rptr. 1137, 1991 Colo. App. LEXIS 257, 1991 WL 155915
CourtColorado Court of Appeals
DecidedAugust 15, 1991
DocketNo. 90CA1012
StatusPublished
Cited by4 cases

This text of 817 P.2d 620 (Continental Bank, N.A. v. Rowe) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Bank, N.A. v. Rowe, 817 P.2d 620, 15 Brief Times Rptr. 1137, 1991 Colo. App. LEXIS 257, 1991 WL 155915 (Colo. Ct. App. 1991).

Opinion

Opinion by

Judge HUME.

Defendant, Jack Rowe, appeals from the trial court’s order dated May 2, 1990, denying his C.R.C.P. 60 motion for relief from a garnishment judgment entered on December 4, 1989. With leave of this court, defendant also appeals an “amended judgment” entered on July 26, 1990. We dismiss the appeal from the May 2, 1990, order and affirm the judgment entered on July 26, 1990.

Plaintiff, Continental Bank, N.A., was awarded an in •personam judgment against defendant in March 1989 (underlying Colorado judgment). Defendant’s appeal from that judgment was dismissed by this court as untimely, and a mandate for dismissal was filed in the trial court on August 21, 1989.

Seeking to satisfy the underlying Colorado judgment, plaintiff initiated the issuance of a writ of garnishment directed to Rowe Marketing International, Inc. The writ of garnishment did not specify the state in which the garnishee was incorporated, and it was served only upon the registered agent for Rowe Marketing International, [622]*622Inc., a Colorado corporation (RMI-Cólora-do).

Plaintiffs purpose in issuing the writ was to secure and hold defendant’s interest in the proceeds of a 1989 judgment entered in favor of Jack Rowe Associates, Inc., and Rowe Marketing International, Inc., in a federal district court in California (California judgment). The caption of the California transcript of judgment did not identify the state of incorporation for Rowe Marketing International, Inc., but the body of the transcript of judgment clearly identifies Rowe Marketing International, Inc., an Arizona corporation (RMI-Arizona) as the judgment creditor in the California proceedings.

Although RMI-Colorado was served with the garnishment writ, it filed no response thereto, and a default judgment was consequently entered against Rowe Marketing International, Inc., with no specification as to the garnishee's state of incorporation.

Thereafter, defendant filed a C.R.C.P. 60 motion seeking either to clarify that the garnishment judgment had entered only against RMI-Colorado or, in the alternative, to vacate the judgment as to RMI-Arizona for lack of jurisdiction. The trial court’s denial of defendant’s C.R.C.P. 60 motion prompted his initial appeal.

Defendant’s C.R.C.P. 60 motion sought relief from the trial court’s judgment, entered on December 4, 1989, against Rowe Marketing International, Inc., as garnishee. The motion was filed on February 14, 1990, and was denied by the trial court’s order dated May 2, 1990. Defendant’s notice of appeal of the May 2 order was filed with this court on June 13, 1990.

However, plaintiff also caused the issuance of additional writs of garnishment directed to RMI-Arizona and to Jack Rowe Associates, Inc., as garnishees. These writs were personally served upon the Arizona agent for process for both Arizona corporations. Neither corporation responded to the writs and an “amended judgment” was entered against both Arizona garnishees on July 26, 1990.

We authorized the filing of defendant’s amended notice of appeal which incorporated his contentions of error as to both judgments. The parties have fully briefed, with our permission, the issues framed by the original appeal as amended.

I.

As a threshold matter, plaintiff argues that defendant’s appeal must be dismissed because he lacks standing to appeal judgments entered against the various corporate garnishees and because his initial appeal was not timely. We reject those arguments.

A.

The remedy of garnishment was unknown at common law and exists in Colorado only by statutes or rules of procedure enacted pursuant to statutory authority. Worchester v. State Farm Mutual Automobile Insurance Co., 172 Colo. 352, 473 P.2d 711 (1970).

Section 13-54.5-106(1), C.R.S. (1987 Repl. Vol. 6A) requires that a judgment creditor who serves a garnishment writ to secure personal property, other than earnings, belonging to a judgment debtor must also serve a copy of the writ together with a notice of exemption and pending levy upon the judgment debtor. C.R.C.P. 103 § 2(d)(2) contains a similar requirement, and it also specifies that service upon the judgment debtor must be in accordance with § 13-54.5-107(2), C.R.S. (1987 Repl. Vol. 6A).

Section 13-54.5-108(l)(b), C.R.S. (1987 Repl.Vol. 6A) permits the judgment debtor to file objections to, and claims of exemption from, the writ within ten days after being served with the notice of pending levy. In addition, § 13-54.5-108(3), C.R.S. (1987 Repl.Vol. 6A) provides:

“Notwithstanding the provisions of subsection (1) of this section, a judgment debtor failing to make a written objection or claim of exemption may, at any time within six months from ... service of the notice of exemption and pending levy ... and for good cause shown, move the court in which the judgment was entered to hear an objection ... as to any earn[623]*623ings or property levied in garnishment, the amount of which the judgment debt- or claims to have been miscalculated or ... to be exempt. Such hearing may be granted upon a showing of mistake, accident, surprise, irregularity in proceedings, newly discovered evidence, events not in the control of the judgment debtor, or such other grounds as the court may allow.”

The foregoing statutes and rules make it apparent that a judgment debtor is entitled to notice of garnishment proceedings and has standing to appear and object to such proceedings. To the extent that the debtor is adversely affected by orders or judgments entered in such proceedings, he must also be accorded standing to appeal therefrom.

Here, defendant asserted that the trial court lacked jurisdiction over the Arizona corporations that were entitled to the proceeds of the California judgment. Alternatively, he asserted that RMI-Colorado, over which the court did have jurisdiction, had no interest in or right to receive the proceeds of that judgment.

The record before us does not include any documents indicating whether or when defendant was served with a notice of exemption and pending levy under the original writ issued on May 27, 1989, and served upon RMI-Colorado on the following day. Thus, we are unable to determine whether defendant’s C.R.C.P. 60 motion was filed within the periods permitted by § 13-54.5-108(l)(b) and (3).

However, plaintiff does not assert that defendant’s C.R.C.P. 60 motion was filed untimely. Plaintiff challenges only defendant’s standing to file that motion and to appeal from its denial.

We conclude, based upon our review of the record and the statutes and rules applicable to garnishment proceedings, that defendant does have standing to pursue those remedies.

B.

Plaintiff also argues that defendant’s C.R.C.P. 60 motion was deemed denied 60 days after its filing by operation of C.R.C.P. 59(j) and that his notice of appeal should have been filed within 45 days thereafter, i.e., on or before May 31, 1990. Again, we disagree.

C.R.C.P. 59(a) allows an aggrieved party fifteen days after entry of judgment within which to file motions “for post-trial relief including: (1) A new trial of all or part of the issues; (2) Judgment notwithstanding the verdict; (3) Amendment of findings; or (4) Amendment of judgment.” C.R.C.P.

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Bluebook (online)
817 P.2d 620, 15 Brief Times Rptr. 1137, 1991 Colo. App. LEXIS 257, 1991 WL 155915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-bank-na-v-rowe-coloctapp-1991.