Hiner v. Johnson

2012 COA 164, 310 P.3d 226, 2012 WL 4829489, 2012 Colo. App. LEXIS 1655
CourtColorado Court of Appeals
DecidedOctober 11, 2012
DocketNo. 10CA1846
StatusPublished
Cited by13 cases

This text of 2012 COA 164 (Hiner v. Johnson) 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
Hiner v. Johnson, 2012 COA 164, 310 P.3d 226, 2012 WL 4829489, 2012 Colo. App. LEXIS 1655 (Colo. Ct. App. 2012).

Opinion

Opinion by

Judge BERNARD.

1 1 This appeal concerns the application of C.R.C.P. 102. That rule authorizes courts to issue writs of attachment and describes the procedures for implementing them. Here, at the request of defendants, Dr. Bruce Johnson and Dr. Michael King, the trial court issued a writ attaching proceeds that had been obtained by plaintiffs, David A. Hiner and Deelila A. Quick, in a settlement with a defendant who is not part of this appeal. Subsequently, the trial court, at plaintiffs request, discharged the writ.

{2 The court then denied plaintiffs' request for damages, attorney fees, and costs. Plaintiffs appeal that decision. We affirm, but we rely on different grounds than those employed by the trial court. See Negron v. Golder, 111 P.3d 588, 542 (Colo.App.2004)(if the trial court reaches the correct result, court of appeals may affirm on different grounds).

[ 3 We reach the following conclusions:

1. Although C.RC.P. 102(a) uses the term "any party," it qualifies the term by limiting it to the party filing a claim "in an action on contract ... or an action to recover damages for tort." Accordingly, C.R.C.P. 102(a) only authorizes a court to issue a writ of attachment for the party bringing the claim, which would be a plaintiff or a defendant who has asserted a counterclaim.
2. Here, defendants requested the writ of attachment. They did not assert a counterclaim. Therefore, C.R.C.P. 102(a) did not provide a basis for the court to issue a writ of attachment in this case.
8. As a result, the writ of attachment here was improperly issued. Although the trial court relied on a different reason, we hold that the trial court properly discharged the writ under C.R.C.P. 102(w).
4. G.R.C.P. 102(d) states that, if the court determines the plaintiff "was not entitled to an attachment," then the plaintiff shall pay the defendant all costs and damages suffered "by reason of the wrongful suing out of the attachment." C.R.CP. 102(n)(2) states that a defendant who prevails at a hearing on a traverse of an affidavit accompanying a writ of attachment held under C.R.C.P. 102(n)(1) is entitled to enumerated damages from the plaintiff.
5. Plaintiffs are not entitled to damages, attorney fees, and costs in this case because (1) C.R.C.P. 102(d) only authorizes an award of costs or damages to the defendant if the plaintiff is not entitled to an attachment, or to the plaintiff if a defendant who has asserted a counterclaim and is not entitled to an attachment; and (2) C.R.C.P. 102(n)(2) only authorizes an award of damages to the defendant if the plaintiff does not prevail at a hearing on a traverse of an affidavit, or to a plaintiff if the defendant who has asserted a counterclaim does not prevail at such a hearing.

I. Background

T 4 Plaintiffs are the husband and a daughter of a woman who died after surgery. They sued several defendants for medical malpractice, including the two doctors in this case and the hospital where the woman died. None of the defendants filed counterclaims.

15 A jury found in favor of the doctors and the trial court entered judgment on the verdict. The doctors sought to recover their statutory costs by filing an ex parte C.R.C.P. 102 motion. The motion asked the trial court to issue a writ to attach the proceeds of a settlement that the plaintiffs had reached with the hospital earlier in the case. The doctors posted a $50,000 bond when they filed the writ.

[228]*2281 6 The court issued the writ, and plaintiffs filed an emergency motion to vacate it. They argued that the affidavit filed in support of the writ was defective. On the same day, plaintiffs' attorney filed a notice of an attorney's lien for $75,000 on the proceeds of the settlement with the hospital.

T7 The doctors, relying on C.R.CP. 102(0 ), obtained the court's permission to file a revised affidavit. The court then scheduled a hearing on plaintiffs' motion to vacate the writ of attachment.

T8 Before the hearing, plaintiffs filed an application to discharge the writ under C.RC.P. 102(w). They asserted that the writ was improperly issued because: (1) C.R.C.P. 102 does not authorize a court to issue a writ of attachment for a defendant's statutory costs; and (2) the statements in the revised affidavit were not sufficient to support a writ of attachment. Relying on C.R.C.P. 102(d) and C.R.C.P. 102(n)(2), plaintiffs alleged that they should be awarded costs, damages, and attorney fees because the attachment was improper.

T 9 The trial court held a hearing on plaintiffs' motion. The court treated it as a traverse of the writ of attachment under CRCP. 102. At the hearing's end, the court denied the motion to vacate the writ. The court ruled that, at least initially, the writ had been properly issued under C.R.C.P. 102(c)(7) and (8).

1 10 Nonetheless, the court discharged the writ under C.R.C.P. 102(w). The court rejected plaintiffs' first contention that C.R.C.P. 102 did not authorize the court to issue a writ for the doctor's statutory costs. However, it determined that the entire amount of the settlement proceeds were subject to the attorney's lien that was filed by plaintiffs' counsel. Thus, applying C.R.C.P. 102(w), it reasoned that it would be improper to issue a writ to attach funds that would not be transferred to plaintiffs.

111 The court also denied plaintiffs' request for costs, attorney fees, and damages. Because the court had relied on C.R.C.P. 102(w) to discharge the writ, it stated that plaintiffs would only be entitled to the funds it requested if the court had granted their motion to traverse the writ under C.R.C.P. 102(n)(1). Rather, the court reiterated that it discharged the writ of attachment under C.R.C.P. 102(w) and "found in favor of the [doctors] under section (n)."

IL Standard of Review

112 We review the trial court's interpretation of a rule of civil procedure de novo because it presents a question of law. See People v. Shell, 148 P.3d 162, 178 (Colo.2006).

113 We interpret rules of procedure consistently with principles of statutory construction. @Gareia v. Medved Chevrolet, Inc., 240 P.3d 871, 374 (Colo.App.2009), aff'd, 263 P.3d 92 (Colo.2011). We first look to the language of the rule and afford the words their plain and ordinary meaning. People ex rel. R.D., 259 P.3d 562, 565 (Colo.App.2011). We must consider the rule as a whole and interpret it in order to give consistent, harmonious, and sensible effect to all its parts. Leaffer v. Zarlengo, 44 P.8d 1072, 1078 (Colo. 2002).

III Applicability of C.R.C.P. 102

T14 The issue before us is whether the trial court properly denied plaintiffs' request for costs, fees, and damages under C.R.C.P. 102. To resolve this issue, we must determine whether the doctors' writ of attachment was authorized by C.R.C.P. 102. To facilitate our analysis, we requested supplemental briefs from the parties addressing whether a defendant who has obtained a favorable verdict in a tort ease can use C.R.C.P. 102(a) to recover statutory costs. As we have pointed out above, defendants did not assert a counterclaim.

T15 C.RC.P. 102(a) states in pertinent part:

Before judgment. Any party, at the time of filing a claim ... in an action to recover damages for tort ...

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Cite This Page — Counsel Stack

Bluebook (online)
2012 COA 164, 310 P.3d 226, 2012 WL 4829489, 2012 Colo. App. LEXIS 1655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hiner-v-johnson-coloctapp-2012.