Opinion
Rehearing Denied June 19, 1973.
Page 465
Bradley, Campbell & Carney, Leo N. Bradley, Golden, for plaintiff-appellant.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Del J. Ellis, Asst. Atty. Gen., Denver, for defendants-appellees The Banking Board of the State of Colorado and Harry Bloom, State Banking Commissioner.
Gorsuch, Kirgis, Campbell, Walker & Grover, Leonard M. Campbell, Alan G. Clausen, Denver, for defendants-appellees Max G. Brooks, R. D. Soper, Selwyn D. Graves, Gary E. Brooks and George G. Patterson, incorporators and applicants.
DWYER, Judge.
First National Bank of Evergreen, plaintiff-appellant, will be referred to as 'protestant'. The Banking Board of the State of Colorado, defendant-appellee, will be referred to as 'Board'. The five individual defendants-appellees, Max G. Brooks, R. D. Soper, Selwyn D. Graves, Gary E. Brooks, and George G. Patterson, who are the incorporators of and applicants for a new bank to be known as Bank of Evergreen, will be referred to as 'applicants'.
Protestant brought this action in the district court to review and reverse an order of the Board directing the State Banking Commissioner to grant a charter to the applicants. The relief sought was denied by the district court, and the protestant has appealed. We affirm.
The applicants filed with the State Banking Commissioner an application for a charter for a new bank to be located on State Highway 74, 1.2 miles north of Evergreen Lake in Evergreen, Colorado. The application was opposed by protestant, which operates a bank located in the downtown business district of Evergreen located approximately 1.7 miles from the proposed bank.
At the hearing on the application, held before the Board pursuant to C.R.S.1963, 14--9--10, applicants and protestant appeared and presented their witnesses and submitted their exhibits. Upon the basis of the evidence presented, the Board found that the proposed bank will serve a public need and advantage in the community, that the volume of business in the community is such that profitable operation of a bank may reasonably be projected, and that the granting of the application is consonant with the public interest of promoting and maintaining a sound banking system.
Although there is a conflict in the evidence, examination of the record discloses that there is sufficient competent evidence upon which the Board could base its findings. The credibility of the witnesses and the weight of the evidence are within the province of the Board to whom is entrusted the fact-finding process. Goldy v. Henry, 166 Colo. 401, 443 P.2d 994. Where the record supports the findings of the Board, a reviewing court cannot substitute its judgment for that of the fact-finding authority. Goldy v. Henry, Supra; Academy Boulevard Bank v. Banking Board, 30 Colo.App. 331, 492 P.2d 76. Since the findings are supported by substantial evidence, the Board's order based on these findings was properly affirmed by the trial court.
On appeal, the protestant contends that the order granting the charter should be reversed because the Board failed to comply with the procedures required by the statute. Specifically, protestant contends that the Board's order granting the charter was not issued within the time required by C.R.S.1963, 14--9--10(6) which provides in part:
'Within sixty days following the date of conclusion of the hearing, the banking board shall order the commissioner to grant a charter if a majority of the board finds that the requirements of section 14--9--10(1) have been met and that the applicant has met the burden of proof prescribed in section 14--9--10(3) . . ..'
Examination of the record discloses no factual basis to support protestant's contentions. The testimony at the hearing was presented on December 16, and 17, 1971, and the arguments of the parties were submitted in written briefs filed with the Board on January 31, 1972. Protestant erroneously contends that the sixty day period commenced on December 17, 1971. Traditionally in proceedings of a judicial or quasi-judicial nature, counsel for the parties are given an opportunity to sum up or argue after the evidence is in. Such arguments are a part of the hearing, and the hearing cannot be considered concluded until the arguments are submitted. See Hill v. Trustees of Glenwood Cemetery, 323 Mass. 388, 82 N.E.2d 238. The sixty day period within which the Board was required to act did not commence until the briefs of the parties were filed on January 31, 1972.
Within sixty days after the briefs were submitted, the Board notified the parties that the application had been granted and that formal findings and final order would follow. On March 29, 1972, a date within the sixty day period and before the Board issued its final order, the protestant filed this action and obtained an Ex parte order prohibiting further proceedings by the Board. On April 24, 1972, the court modified its previous order to permit the Board to complete its administrative proceedings and issue its final order. The Board then, on April 28, 1972, entered its findings and order granting the charter. The delay of the entry of the final order of the Board beyond the sixty day period was occasioned by the restraining order obtained by protestant. Protestant is estopped to complain of the delay which it caused and for which it is responsible.
From the briefs filed herein it appears that the application which the Board granted was the second of two filed by applicants. Both applications designated the same location for the proposed bank. The second application was filed shortly after the Board notified the applicants that the first application had been denied. The protestant contends that the Board acted arbitrarily and capriciously in granting the second application after denying the first one. Further, protestant contends that since finality had attached to the order denying the charter, the applicants were estopped to file a second application and relitigate the matter.
Both the applicants and the Board assert that this court cannot consider these issues because the record of the proceedings concerning the first application was not submitted to the trial court or to this court for consideration. Examination of the record discloses that the trial court initially ordered the Board to certify the record of both proceedings. However, the court subsequently modified its order, and the only record certified was that of the second proceeding. The Board and the applicants are correct in asserting that this court may not consider protestant's arguments which are based upon proceedings and an order not appearing of record. Statements made in briefs of litigants cannot supply that which must appear in the record. Hinshaw v. Dyer, 166 Colo. 394, 443 P.2d 992; Laessig v. May D & F, 157 Colo. 260, 402 P.2d 183.
Protestant also argues that the court failed to determine all questions of law presented. The court denied protestant the relief sought in the complaint without specifically ruling on each of protestant's arguments. We have treated the court's decision as a ruling adverse to protestant on each issue raised and, as so considered, the trial court's order is sufficient for purposes of review.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.