Opinion
No. 03CA1525.
September 23, 2004.
Routt County District Court No. 97CV30, Honorable Paul R. McLimans, Judge, Honorable James Herbert Garrecht, Judge.
In this post-judgment proceeding, defendant, Howard M. Tillison, appeals the order denying his C.R.C.P. 60(b) motion in which he challenged orders reviving a judgment in favor of plaintiff, Invisible, Inc. We affirm.
ORDERS AFFIRMED.
Stern Newton, P.C., Richard E. Newton, Granby, Colorado, for Plaintiff-Appellee.
Howard M. Tillison, Pro Se.
Division II.
On May 7, 1997, Invisible obtained a default judgment against Tillison in the Routt County District Court (state trial court) arising from Tillison's failure to pay a promissory note. Invisible recorded a transcript of the judgment and thereby obtained a judgment lien against Tillison's real property, but the judgment remains unsatisfied.
Tillison moved to California. In proceedings there, Tillison obtained an order from a California court purporting to vacate the state trial court's judgment. Tillison subsequently attempted to have the California order authenticated in Colorado under the Uniform Enforcement of Foreign Judgments Act (Act), § 13-53-101, et seq., C.R.S. 2003, but was unsuccessful in the trial court and on appeal. See Tillison v. Invisible, Inc., (Colo.App. No. 99CA2159, Dec. 21, 2000) (not published pursuant to C.A.R. 35(f)).
On January 13, 2003, Invisible filed a motion in the state trial court seeking to revive its judgment lien, which was set to expire on May 7, 2003. Tillison did not file a response. Instead, on February 12, 2003, he filed a petition in the United States District Court for removal of the case, arguing that the California order should be given full faith and credit.
On April 22, 2003, the state trial court issued a notice to Tillison pursuant to C.R.C.P. 54(h), directing him to show cause why the judgment should not be revived. Tillison did not respond, and that court entered two separate orders dated May 6 and 7, 2003, reviving it.
Meanwhile, the federal district court concluded that Tillison had asserted improper grounds for removal and had failed to comply with the procedural requirements of 28 U.S.C. § 1446(a), (2002), the removal statute. Accordingly, that court remanded the case to the state trial court on May 7, 2003. The state trial court received all the federal filings on May 8, 2003.
Shortly thereafter, Invisible filed a motion seeking recovery of its costs and attorney fees under the promissory note, to which Tillison failed to respond. Instead, Tillison filed a motion for relief pursuant to C.R.C.P. 60(b), asserting that, because removal proceedings were still pending in the federal district court when the state trial court entered the orders reviving the judgment, those orders are void. The state trial court denied Tillison's motion and awarded Invisible its requested costs and attorney fees. This appeal followed.
I.
Tillison contends the orders reviving the judgment are void for lack of jurisdiction because they were entered before the federal district court remanded the case to the state trial court. We disagree.
C.R.C.P. 60(b)(3) provides for relief from a final judgment that is void. A judgment is void if the court rendering it lacked jurisdiction over the subject matter or the parties or if the procedure followed in entering it violated a party's due process rights. Arvada 1st Indus. Bank v. Hutchison, 15 P.3d 292 (Colo.App. 2000).
Our review of a trial court's order under C.R.C.P. 60(b)(3) is de novo. First Nat'l Bank v. Fleisher, 2 P.3d 706 (Colo. 2000); Werth v. Heritage Int'l Holdings, PTO, 70 P.3d 627 (Colo.App. 2003).
As pertinent here, to obtain removal to the federal district court, a defendant must file a notice of removal in the appropriate federal district court, promptly give written notice to adverse parties, and file a copy of the notice of removal with the clerk of the state court in which the action is pending. 28 U.S.C. § 1446(a), (d) (2002). Filing the notice of removal with the state court "shall effect the removal and the State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d); see Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir. 1996).
However, until the state court receives actual notice of removal pursuant to § 1446(d), the state court retains jurisdiction over the case and may proceed. See Anthony v. Runyon, supra (mere filing of removal notice in federal court and service on plaintiff does not sever the state court's jurisdiction; removal effected only when notice of removal is filed with the state court); Burroughs v. Palumbo, 871 F. Supp. 870 (E.D. Va. 1994) (a finding that state court jurisdiction can be severed before notifying it of a removal proceeding would subvert § 1446(d)'s purpose to allow the state court to stay its proceedings, avoid duplicative actions, and conserve judicial resources).
Here, the record is devoid of evidence that the state trial court received notice of the removal proceeding before it entered the revival orders. The record consists of two volumes: the state trial court record (volume I) and the papers that were filed in the federal district court (volume II). The state trial court record in volume I indicates that it received volume II in its entirety from the federal district court on May 8, 2003.
Volume II contains Tillison's petition for removal and an emergency motion, dated April 25, 2003, informing the federal district court that he had received the state trial court's April 22, 2003 notice to show cause and requesting that the state trial court be enjoined from further action in his case. Both the petition and the emergency motion contain Tillison's certification that he sent a copy to the state trial court clerk. However, neither document is included in volume I, nor is there any other evidence in volume I of removal notification.
Because we may consider only the trial court record, see In re Marriage of Tagen, 62 P.3d 1092 (Colo.App. 2002), we conclude that the state trial court was first notified of the removal proceeding on May 8, 2003. Because the record does not demonstrate that Tillison complied with the requirement of 28 U.S.C. § 1446(d) that he provide the state trial court with prompt notice of removal, and it did not receive such notice until after it entered its orders, the state trial court retained jurisdiction to act. Therefore, contrary to Tillison's contention, the orders are not void for lack of state court jurisdiction, and neither is the notice to show cause. See Anthony v. Runyon, supra; Burroughs v. Palumbo, supra.
Accordingly, the state trial court properly denied Tillison's request for post-judgment relief under C.R.C.P. 60(b)(3), even though it did so on grounds different from those discussed here. See W.O. Brisben Cos. v. Krystkowiak, 66 P.3d 133 (Colo.App. 2002) (appellate court will uphold decision by trial court that reached correct result based on other grounds), aff'd, 90 P.3d 859 (Colo. 2004).
II.
Relying upon other provisions of C.R.C.P. 60(b), Tillison asserts the state trial court erred in relying upon the April 22, 2003, notice to show cause, which in his view was void for lack of jurisdiction, thereby denying him due process. He also asserts that Invisible fraudulently obtained the orders. We disagree.
C.R.C.P. 60(b) provides in pertinent part: "On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) Mistake . . . (2) fraud . . . or (5) any other reason justifying relief from the operation of the judgment."
The party requesting C.R.C.P. 60(b) relief has the burden of establishing the grounds for such relief by clear, strong, and satisfactory proof. Blazer Elec. Supply Co. v. Bertrand, 952 P.2d 857 (Colo.App. 1998). A grant or denial of a C.R.C.P. 60(b)(1), (2), or (5) motion lies within the sound discretion of the trial court and, absent an abuse of discretion, will not be disturbed on appeal. See Blesch v. Denver Publ'g Co., 62 P.3d 1060 (Colo.App. 2002).
A.
We reject Tillison's contention that he is entitled to relief under C.R.C.P. 60(b)(1) because the state trial court erroneously issued the notice to show cause. As we previously have concluded, the state trial court retained jurisdiction over this case throughout the removal proceeding and therefore properly issued the notice. See Burroughs v. Palumbo, supra.
B.
We also reject Tillison's assertion that he is entitled to relief under C.R.C.P. 60(b)(2) because, in his view, Invisible's attorney fraudulently failed to notify the state trial court of the removal proceeding.
The record indicates that Invisible's attorney advised the state trial court in a document that Tillison had filed a case in federal court. There, counsel stated that "there has not been . . . any order divesting this Court of jurisdiction over the judgment and judgment lien." Invisible's attorney did not specify that Tillison's federal court case was a removal proceeding and appeared mistakenly to believe that the state trial court could only lose jurisdiction if the federal court expressly divested it of such.
Nevertheless, Tillison fails to point to any evidence in the record, nor do we perceive any, that Invisible's attorney acted fraudulently.See Blazer Elec. Supply Co. v. Bertrand, supra. Moreover, it was Tillison's duty, not Invisible's, to notify the state trial court of the removal proceeding. See 28 U.S.C. § 1446(d) ("the defendant . . . shall file a copy of the notice with the clerk of [the] State court, which shall effect the removal").
C.
We are not persuaded by Tillison's argument that he is entitled to relief under C.R.C.P. 60(b)(5) because he was denied his due process right to the ten-day opportunity to show cause pursuant to C.R.C.P. 54(h) before revival of the judgment was ordered.
C.R.C.P. 60(b)(5) is a catch-all provision that has been narrowly interpreted to include only extreme situations and extraordinary circumstances not covered by other provisions of the rule. Davidson v. McClellan, 16 P.3d 233 (Colo. 2001); Spencer v. Bd. of County Comm'rs, 39 P.3d 1272 (Colo.App. 2001).
Tillison's decision not to respond to the notice to show cause based upon his mistaken belief that it was void for lack of jurisdiction is not an "extraordinary circumstance" or "extreme situation" warranting relief under C.R.C.P. 60(b)(5). See Davidson v. McClellan, supra; Spencer v. Bd. of County Comm'rs, supra.
For these reasons, we perceive no abuse of discretion in the trial court's denial of post-judgment relief under C.R.C.P. 60(b)(1), (2), and (5).
III.
Tillison contends that the costs and attorney fees awarded are excessive and unsupported by the record. We disagree.
When a promissory note provides for attorney fees, and the holder of the note employs counsel who successfully brings suit on the note, reasonable attorney fees fixed by the court may be included in the judgment. Such a provision amounts to an agreement to indemnify the holder of the note against expenses actually incurred. Karg v. Mitchek, 983 P.2d 21 (Colo.App. 1998).
The determination of the reasonableness of costs and attorney fees is a question of fact for the trial court and will not be disturbed on appeal unless patently erroneous and unsupported by the evidence. Thus, we review the reasonableness of the costs and attorney fees awarded under an abuse of discretion standard. See Hartman v. Cmty. Responsibility Ctr., Inc., 87 P.3d 254 (Colo.App. 2004).
We reject Tillison's assertions that some of Invisible's fees were incurred for the removal proceeding and other purposes unrelated to the revival action in the state trial court. Not only did Tillison fail to raise this contention before the state trial court, but he also has offered no proof, other than unsupported assertions of error, concerning the award. See Trosper v. Wilkerson, 764 P.2d 375 (Colo.App. 1988) (a trial court's award of costs is presumed to be correct until the contrary is affirmatively shown).
Moreover, Invisible made a sufficient showing that the costs and attorney fees requested were paid or incurred for the revival action and were reasonable. See Hartman v. Cmty. Responsibility Ctr., Inc., supra;Karg v. Mitchek, supra.
We reject Tillison's assertion that Invisible's state trial court expenses incurred while the removal proceeding was pending were improperly awarded because the state court action was barred at the time. See Burroughs v. Palumbo, supra.
Hence, we conclude that the trial court did not abuse its discretion in its award of costs and attorney fees to Invisible.
IV.
Tillison also contends that revival of the judgment is improper because the California order is subject to the Act and is entitled to full faith and credit. We decline to address this issue because he raises it for the first time on appeal, see Schreck v. T C Sanderson Farms, Inc., 37 P.3d 510 (Colo.App. 2001), and because he has already litigated this issue. See Bennett Coll. v. United Bank, 799 P.2d 364 (Colo. 1990) (under the doctrine of issue preclusion, a judgment on the merits between the same parties in a prior suit precludes relitigation of any issues litigated and determined in the prior suit); Tillison v. Invisible, Inc., supra.
The orders are affirmed.
JUDGE ROTHENBERG and JUDGE CARPARELLI concur.