Opinion
No. 76-061
Decided November 26, 1976. Rehearing denied December 16, 1976. Certiorari denied February 22, 1977.
Although, in action challenging validity of city ordinance establishing sewer service charge, a motion to strike affidavit in support of city's motion for summary judgment was pending, as was a counter-motion of city, the trial court, nevertheless, entered summary judgment for the city. Plaintiffs appealed.
Reversed
1. JUDGMENT — Summary — Local Rules — May Not Dispense With — Time Limitations — Rules of Procedure. Where the rules of procedure provide that, upon a motion for summary judgment, an adverse party may serve opposing affidavits prior to the day of the hearing, such time limitations cannot be dispensed with under any interpretation of a local rule requiring that answer briefs to such a motion be filed within 10 days after service of the movant's brief; accordingly, where a motion to strike an affidavit in support of a motion for summary judgment was filed in accordance with time requirements of rules of procedure, but not in accordance with requirements of local rule, the trial court's entry of summary judgment without considering such motion was error.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Hoffman, Goldstein, Armour Lonnquist, P.C., Alan A. Armour, for plaintiffs-appellants.
Max P. Zall, City Attorney, George J. Cerrone, Jr., Assistant City Attorney, for defendant-appellee.
Plaintiffs are apartment owners, managers, builders, and taxpayers who filed a class action against Denver seeking a declaratory judgment relating to two city ordinances. Plaintiffs' complaint contained two claims for relief. The first claim challenged the validity of an ordinance of September 18, 1973, establishing a "sewer service change." The second cause of action dealt with another city ordinance and is not before us on this appeal.
The city first filed a motion under C.R.C.P. 23 requesting the court to determine whether the cause could be maintained as a class action. The trial court ruled it could be so maintained. The city then filed an answer and two counterclaims, and thereafter it filed a motion for summary judgment. This motion was supported by a brief and an affidavit of a city employee. The affidavit contained detailed statistical data and stated that the affiant had conducted a "study and evaluation of the sewerage service charges" for apartments and single family residential units. Relying on the information contained in the document, the city maintained the reasonableness of the ordinance had been demonstrated. Contending that the information contained in the affidavit would be inadmissible, the plaintiffs, some 25 days later, filed a motion to strike the affidavit. The city then moved to strike that motion of plaintiffs on the ground that it was not timely filed.
Subsequently, on August 20, 1975, without determination of plaintiffs' motion or the city's counter-motion and without notice to either party, the court granted summary judgment in favor of the city on the plaintiffs' first claim for relief and entered a C.R.C.P. 54(b) order making an express determination that there was no just reason for delay in the entry of judgment. Plaintiffs have appealed contending that the court should have ruled on their motion to strike the affidavit, and there were factual issues to be resolved, and that the court acted prematurely. The city cross-appeals on the issue of whether the case can be maintained as a class action. We reverse the judgment.
Second Judicial District Rule 24 (local rule 24) provides that in filing a motion for summary judgment the moving party shall file a memorandum brief in support of the motion. The adverse party may serve an answer brief within ten days after service of the movant's brief, but failure to so do is not to be considered as as a confession of the motion. Local rule 24 also allows for oral argument if a request therefor is endorsed upon the briefs. Plaintiffs did not submit counter-affidavits nor file an answer brief within ten days as required by the rule, but responded instead with the motion to strike the city's affidavit. Although the motion was not made within ten days, it nevertheless occurred before the trial court had acted on the motion for summary judgment.
C.R.C.P. 56(c) provides that a motion for summary judgment "shall not be heard until at least ten days after the service thereof." The rule continues that an "adverse party prior to the day of the hearing may serve opposing affidavits." (emphasis added) Plaintiffs maintain that the procedural developments in this case have resulted in a conflict arising between the local rule and C.R.C.P. 56. We agree.
[1] By its terms, local rule 24 must be construed in conformity with C.R.C.P. 56. See also C.R.C.P. 83. Accordingly, the time limitations contemplated by C.R.C.P. 56 cannot be dispensed with under any interpretation of local rule 24. C.R.C.P. 56(c) allows the service of opposing affidavits "prior to the day of hearing," and the timeliness of an adverse party's response is thus determined by the date of the hearing. Similarly, here the plaintiffs should have been afforded the same opportunity to respond to defendant's motion as is available under C.R.C.P. 56, notwithstanding the fact that no hearing had been set. The motion to strike was therefore properly before the trial court, and the failure to consider it was error. See Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973).
There is no provision in local rule 24 which would justify a complete disregard of plaintiffs' motion, nor will we deem the motion to have been "implicitly" considered. The record is devoid of any ruling in this respect and such an implication cannot form the basis of an affirmance by this court. The trial court made no findings or conclusions, but merely ordered entry of summary judgment in favor of the city on plaintiffs' first cause of action.
As the cause must be remanded for consideration of plaintiffs' motion to strike, we do not decide the other issues asserted by plaintiffs. A trial court ruling on the validity of the city's affidavit is necessary at this stage of the proceedings, and plaintiffs must be given notice of hearing on defendant's motion for summary judgment and opportunity to file counter-affidavits after the ruling on the motion to strike and up to the time of the hearing thereon unless notice of hearing is waived. C.R.C.P. 56(c).
As to the cross-appeal, since this case is being returned to the trial court, we decline to rule on the propriety of maintaining this suit as a class action. One claim for relief is not before us. It would appear that the propriety of the class action should be ruled upon as it applies to both causes of action rather than merely to plaintiffs' first claim.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
JUDGE ENOCH and JUDGE STERNBERG concur.