Douglas County v. Sweet

• Court: Colorado Court of Appeals
• Decided: July 3, 2024
• Docket: 23CA1645
• Status: Unknown

Opinion

23CA1645 Douglas County v Sweet 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1645

Douglas County District Court No. 20CV30437

Honorable Gary M. Kramer, Judge

Board of County Commissioners of the County of Douglas, Colorado,

Plaintiff-Appellee,

v.

Renee Sweet,

Defendant-Appellant.

ORDERS AFFIRMED

Division VI

Opinion by JUDGE SCHUTZ

Lipinsky and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

Jeffrey A. Garcia, County Attorney, Andrew C. Steers, Senior Assistant County

Attorney, Castle Rock, Colorado, for Plaintiff-Appellee

Renee Sweet, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 Renee Sweet appeals the trial court’s orders related to the

enforcement of the injunction entered against her and the

associated contempt proceedings. We affirm.

I. Background and Procedural History

A. 2020 Bench Trial, Contempt Hearing, and Initial Appeal

¶ 2 Sweet owns residential property (the subject property) in

unincorporated Douglas County. After receiving complaints about

junk and inoperable vehicles on the subject property, the Board of

County Commissioners of the County of Douglas (the County) sent

zoning compliance officers to inspect. After the inspection, the

County notified Sweet that her storage of specified items on the

subject property violated several sections of the Douglas County

Zoning Resolution (the DCZR). Despite the notice, Sweet continued

accumulating prohibited objects on the subject property, placed

shipping containers and a greenhouse-type structure within the

minimum setbacks, and erected a fence that encroached on the

County’s right-of-way.

¶ 3 After Sweet failed to cure the violations of the DCZR, the

County filed a six-count complaint against her, in which it

requested preliminary and permanent injunctive relief, as well as an

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award of civil penalties. In November 2020, the trial court entered a

preliminary injunction and set the matter for trial. The County

subsequently filed a contempt motion after Sweet refused to comply

with the preliminary injunction.

¶ 4 In March 2021, after a one-day bench trial, the court found in

the County’s favor, granted the County’s request for a permanent

injunction, and awarded civil penalties against Sweet. As relevant

here, the injunction

(1) barred Sweet from using the subject property as a

storage area for junk and ordered her to remove all junk,

trash, and rubbish from the subject property;

(2) enjoined her from storing inoperable vehicles or

unconcealed operable vehicles with expired license plates

on, and ordered her to remove such vehicles from the

subject property;

(3) enjoined her from locating structures within the

minimum setbacks of the subject property and ordered

her to remove the offending structures;

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(4) required her to remove all unpermitted structures from

the subject property and not use structures for which no

building permits were obtained from the County; and

(5) enjoined her from constructing any fence or wall that

obstructs the public right-of-way and ordered her to

remove all obstructing fencing and walls.

¶ 5 Sweet appealed the trial court’s orders imposing the

permanent injunction and the civil penalties. While the appeal was

pending, the trial court found Sweet guilty of contempt, sentenced

her to thirty days in jail, and imposed daily fines until she complied

with the permanent injunction. The court stayed the jail sentence

until the appeal concluded.

¶ 6 In July 2022, a division of this court held that Sweet’s claims

were without merit and affirmed the trial court’s permanent

injunction and award of penalties. See Bd. of Cnty. Comm’rs v.

Sweet, (Colo. App. No. 21CA0671, July 28, 2022) (not published

pursuant to C.A.R. 35(e)) (Sweet I). The Colorado Supreme Court

denied Sweet’s certiorari petition.

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B. Post-Appeal History

¶ 7 In March 2023, the mandate issued in Sweet I. After receiving

the mandate, the trial court imposed Sweet’s thirty-day jail

sentence. The County subsequently filed motions seeking orders to

impose per diem penalties and to certify the contempt penalties as a

civil judgment.

¶ 8 Sweet served her thirty-day jail sentence in April 2023. In

May 2023, she filed a certiorari petition with the United States

Supreme Court in Sweet I. But she did not obtain a stay from the

trial court or the United States Supreme Court while she pursued

that petition. See C.A.R. 8(a)(1)(A) (a party must ordinarily move in

the district court to stay a judgment or order from a district court

pending appeal).

¶ 9 In August 2023, the trial court set a hearing on the County’s

pending motions. Sweet argued at the hearing that the court

lacked jurisdiction due to the pendency of her certiorari petition.

The court informed her that it retained jurisdiction in the absence

of a stay.

¶ 10 Shortly thereafter, Sweet walked out of the hearing. After she

left, the trial court heard testimony about the continued DCZR

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violations, made detailed findings, and imposed additional daily

fines for Sweet’s continued violations of the permanent injunction.

The court granted the County’s motions.

¶ 11 Sweet appeals the orders imposing per diem fines and

certifying the fines as a civil judgment. She raises a myriad of

issues that we address below.

II. Jurisdictional Claims

¶ 12 Sweet challenges the trial court’s subject matter jurisdiction in

two ways. First, she argues that the court was without jurisdiction

because of a temporary COVID-19 order from the Colorado

Supreme Court that significantly limited court proceedings during

the initial months of the pandemic. Second, she argues the court

lost jurisdiction over the case while her petition to the United States

Supreme Court was pending. We reject both contentions.

¶ 13 We review de novo whether a court has subject matter

jurisdiction. Egelhoff v. Taylor, 2013 COA 137, ¶ 23. In the spring

of 2020, during the height of the COVID-19 pandemic, Chief Justice

Coats entered an order that temporarily halted jury trials in

Colorado. Sweet argues, as a consequence of this order, the trial

court lacked jurisdiction to hear the matter when it commenced in

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June 2020. Sweet ignores that the order did not stop all

proceedings; rather, it only temporarily halted jury trials. Moreover,

neither the initial order nor any subsequent Chief Justice order

deprived the trial court of subject matter jurisdiction. Those orders

simply modified the protocols for certain proceedings.

¶ 14 We also summarily reject Sweet’s contention that the trial

court lacked jurisdiction because of the pendency of her certiorari

petition to the United States Supreme Court. Neither the filing of

an appeal nor a certiorari petition to the Supreme Court

automatically stays execution on a judgment. In re Marriage of

McCue, 645 P.2d 854, 855 (Colo. App. 1982) (“[A] trial court retains

jurisdiction in order to enforce a judgment it has rendered where,

as here, the judgment has not been stayed.”). Moreover, the trial

court regained full jurisdiction in March 2023, after the mandate

issued in Sweet I. Therefore, the trial court had jurisdiction when it

issued the orders that Sweet challenges in this appeal.

III. Contempt Claims

¶ 15 Sweet raises several claims that the trial court abused its

discretion by issuing the contempt orders due to procedural errors

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that she contends violated her constitutional rights. We are

unpersuaded.

A. Standard of Review and Applicable Law

1. Contempt

¶ 16 We review orders imposing contempt sanctions for an abuse of

discretion. People v. Aleem, 149 P.3d 765, 774 (Colo. 2007). A trial

court abuses such discretion when its ruling is “manifestly

arbitrary, unreasonable, or unfair.” People ex rel. State Eng’r v.

Sease, 2018 CO 91, ¶ 24.

¶ 17 Trial courts may use their contempt powers to vindicate the

dignity and authority of the court and to preserve its viability. Id.;

see also C.R.C.P. 107(d)(1) (“The court may impose a fine or

imprisonment or both if the court expressly finds that the person’s

conduct was offensive to the authority and dignity of the court.”).

Under C.R.C.P. 107, there are two types of contempt — direct and

indirect — and two types of sanctions, remedial and punitive. In re

Parental Responsibilities Concerning A.C.B., 2022 COA 3, ¶ 21.

Direct contempt involves conduct that occurs in the judge’s

presence. Indirect contempt occurs when a party violates a court

order outside the judge’s presence. Id. at ¶ 22. As part of its

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inherent authority, the court has the power to enforce obedience to

its orders through contempt sanctions. People v. McGlotten, 134

P.3d 487, 489-90 (Colo. App. 2005).

2. Zoning Violations

¶ 18 Section 30-28-124.5, C.R.S. 2023, gives the County broad

discretion to address zoning violations:

It is unlawful to erect, construct, reconstruct,

alter, or use any building, structure, or land in

violation of any regulation in, or of any

provisions of, any zoning resolution or any

amendment thereof, enacted or adopted by the

board of county commissioners . . . . [A]ny

person, firm, or corporation violating any such

regulation . . . may be subject to the

imposition . . . of a civil penalty in an amount

of not less than five hundred dollars nor more

than one thousand dollars. It is within the

discretion of the county attorney to determine

whether to pursue the civil penalties set forth

in this section, the remedies set forth . . . in

section 30-28-124, or both . . . . Each day

after the issuance of the order of the county

court during which such unlawful activity

continues shall be deemed a separate violation

and shall, . . . be the subject of a continuing

penalty in an amount not to exceed one

hundred dollars for each such day. Until paid,

any civil penalty ordered by the county court

and assessed under this subsection (1) shall,

as of recording, be a lien against the property

on which the violation has been found to exist.

In case the assessment is not paid within

thirty days, it may be certified by the county

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attorney to the county treasurer, who shall

collect the assessment, together with a ten

percent penalty for the cost of collection, in the

same manner as other taxes are collected. The

laws of this state for assessment and collection

of general taxes, including the laws for the sale

and redemption of property for taxes, shall

apply to the collection of assessments

pursuant to this subsection (1). . . .

. . . .

In the event any building or structure is

erected, constructed, reconstructed, altered, or

used or any land is used in violation of any

regulation . . . [,] the county attorney of the

county in which such building, structure, or

land is situated, in addition to other remedies

provided by law, may commence a civil action

in county court for the county in which such

building, structure, or land is situated, seeking

the imposition of a civil penalty in accordance

with the provisions of this section.

§ 30-28-124.5(1)-(2)(a) (emphasis added).

¶ 19 This statute authorized the County’s enforcement action and

the trial court’s resulting order. See also Pena v. Dist. Ct., 681 P.2d

953, 956 (Colo. 1984) (A trial court has the inherent powers “to

perform efficiently its judicial functions, to protect its dignity,

independence, and integrity, and to make its lawful actions

effective.”).

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B. Application

¶ 20 Sweet claims that the trial court exceeded its jurisdiction or

abused its discretion by (1) entering the post-appeal orders; (2)

issuing an order that lacked objective standards; (3) wrongfully

interfering with her ability to file a certiorari petition with the

United States Supreme Court by incarcerating her for contempt;

and (4) failing to advise her of her right to counsel for the contempt

hearing. We reject each of these claims.

1. Post-Appeal Orders

¶ 21 Sweet contends that the trial court lost jurisdiction to issue

the post-appeal orders because the court had issued the permanent

injunction and contempt order more than two years before. To

support this contention, Sweet mistakenly relies on C.R.C.P. 59(j),

which requires trial courts to resolve motions for post-trial relief

within sixty-three days from the date of filing. Critically, however,

the trial court’s subsequent orders did not modify or alter the

judgment entered against Sweet; rather, they enforced the existing

permanent injunction. For this reason, the court did not act

without jurisdiction when it granted the County’s motions (1) for

accrued per diem penalties; (2) to certify the contempt penalties as

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a civil judgment; and (3) certifying the per diem penalties. Section

30-28-124.5 authorized these remedies.

¶ 22 We also discern no abuse of discretion in the trial court’s

contempt findings and subsequent orders. A court has the

authority to use its contempt powers to enforce obedience with its

orders. McGlotten, 134 P.3d at 489-90. And given the ongoing

issues with Sweet’s noncompliance, the court did not abuse its

discretion by granting the County’s request for accrued per diem

penalties and certifying the contempt and per diem penalties as a

civil judgment pursuant to section 30-28-124.5.

2. Lack of Objective Standard

¶ 23 Sweet argues that the trial court abused its discretion by

finding her in contempt because the permanent injunction was too

vague to be enforceable. More specifically, she argues it provided

no objective standard that permitted her to cure the violations. In

the absence of an objective standard, she argues that she cannot

comply with the permanent injunction and the contempt finding

was therefore erroneous.

¶ 24 We decline to address this contention because it is untimely.

Sweet should have raised in Sweet I any argument regarding alleged

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vagueness in the permanent injunction. At the time of the

contempt proceedings, the permanent injunction was a final order,

and for the reasons previously stated, the court properly enforced it

through its contempt powers.

3. Jail Sentence

¶ 25 Sweet argues that the jail sentence that stemmed from the

trial court’s contempt finding violated her constitutional rights by

interfering with her ability to submit her certiorari petition to the

United States Supreme Court. Not so. Sweet timely filed her

certiorari petition. In the absence of any injury, we decline to

address this contention further.

4. Right to Counsel

¶ 26 Finally, Sweet asserts the trial court erred by failing to advise

her of her right to counsel for the contempt proceedings. However,

the record demonstrates that, at a hearing held in March 2021, the

court advised her on the motion and provided her with “a court

appointed application to be completed and returned to the Court

within seven days of the advisement date.” Although Sweet

apparently did not complete the application, the court clearly

advised her of her right to an attorney. Sweet also contends that

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the court did not advise her of her right to call and confront

witnesses. But the contempt order reflects that the court advised

her on the motion for contempt.

IV. Remaining Procedural Claims

¶ 27 Finally, Sweet asserts a hodgepodge of procedural arguments

that are largely undeveloped and unpreserved, including that (1) the

case against her was erroneously brought in the County’s name,

rather than in the name of the People of the State of Colorado; (2)

the county attorney misrepresented the evidence during the hearing

when he stated that the zoning compliance officer’s testimony was

uncontroverted; and (3) the DCZR was not enforceable because it

was merely a resolution.

¶ 28 Sweet’s argument that the contempt proceeding should have

been brought as a criminal matter in the name of the People rather

than as a civil matter is raised for the first time on this appeal.

Therefore, we decline to address the argument. See O’Connell v.

Biomet, Inc., 250 P.3d 1278, 1282 (Colo. App. 2010) (in civil cases,

where an argument “was not presented in the trial court” and is

raised as a “new argument for the first time on appeal,” it is

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unpreserved and will not be addressed absent extraordinary

circumstances not present here).

¶ 29 As pertinent to Sweet’s claims regarding the county attorney’s

alleged misrepresentations, Sweet walked out of the courtroom at

the commencement of the August 2023 hearing, despite the trial

court’s warning that, by doing so, she was waiving her right to

participate. Sweet departed before the compliance officer testified

concerning the subject property, despite the court’s warning about

the consequences of leaving. Furthermore, we agree with the

County that the county attorney’s statement that the zoning

compliance officer’s testimony was uncontroverted is accurate

because Sweet offered no contrary evidence. In any event, Sweet’s

claim regarding the zoning compliance officer’s testimony is also

unpreserved and we decline to address it.

¶ 30 Finally, Sweet makes a vague argument that the DCZR was

unenforceable because it was a mere regulation. But she raised

that same argument in Sweet I and the division rejected it. We

therefore decline to address the argument further.

V. Disposition

¶ 31 The trial court’s orders are affirmed.

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JUDGE LIPINSKY and JUDGE BERNARD concur.