Brewster v. Nandrea
Brewster v. Nandrea
Opinion of the Court
We granted certiorari in response to two petitions to consider the court of appeals’ ruling in Nandrea v. Board of Commissioners, 663 P.2d 1068 (Colo.App. 1983), that third-party defendants in a boundary dispute should bear part of the cost of the boundary commission, although the district court had determined under section 38-44-111, 16A C.R.S. (1982), that only the original parties to the boundary dispute should bear equally the costs and fees of the commission. We reverse and remand to the court of appeals with directions to reinstate the order of the district court.
The plaintiffs L. Larry Nandrea and Ann T. Nandrea filed suit in Jefferson County District Court against the defendant, their neighbor John R. Lennon, alleging that Lennon had built a house on the Nandreas’ property in rural Jefferson County near Conifer. The Nandreas requested that the court appoint a boundary commission to determine the boundary between the Nan-dreas’ and Lennon’s property under sections 38-44-101 to 38-44-112, 16A C.R.S. (1982).
The court appointed as boundary commissioners two surveyors, one recom
The district court determined further that the Nandreas and Lennon should share the costs of the boundary commission equally under section 38-44-111, 16A C.R.S. (1982).
The court of appeals held that the district court erred in allocating half of the costs of the boundary commission to the Nandreas. The court concluded that all of the property owners in the area benefited from the boundary commission, so “each owner should be allocated those costs incurred in determining the legal description of that party’s boundary lines.” The court remanded the case for re-allocation of costs by the district court, but did not send a copy of its decision to any of the third-party defendants.
Because the court never sent them copies of its decision, the third-party defendants were unable to bring timely petitions for rehearing of the court of appeals’ decision. They only learned of the decision when the court’s mandate issued. At that time, the third-party defendants filed petitions for
I.
C.A.R. 40(a) provides that a petition for rehearing must be filed “within fourteen days after entry of judgment unless the time is shortened or enlarged by order.” If no petition for rehearing is filed, the court’s mandate issues fifteen days after the entry of judgment. C.A.R. 41. The supreme court will not issue a writ of cer-tiorari to the court of appeals unless the petitioner filed a petition for rehearing of the court of appeals decision. C.A.R. 52(b).
In the present case, the third-party defendants requested that the court of appeals recall its mandate and enlarge the time for filing a petition for rehearing under C.A.R. 40(a). The court is required to exercise “sound discretion” in considering a motion for enlargement of time. Wiggins v. People, 199 Colo. 341, 608 P.2d 348 (1980). The court of appeals denied the third-party defendants’ petitions, although the clerk of the court of appeals had failed to mail copies of the court of appeals’ opinion to the third-party defendants as required by C.A.R. 36.
The court of appeals denied the third-party defendants’ petitions for rehearing when it denied the motions for enlargement of time. The record before us does not indicate whether the court of appeals denied the petitions for rehearing on their substance or because they were filed late; however, considerations of judicial economy lead us to address the substantive issues in the case as if the court of appeals considered the substance of the petitions.
II.
The third-party defendants maintain that the court of appeals had no jurisdiction to require the allocation of costs to them because the Nandreas did not raise the issue of allocating costs to the third-party defendants, in a motion for new trial. When the Nandreas filed their motion in
The Nandreas requested a reconsideration of the assessment of costs on the basis that Lennon should pay all of the fees of the boundary commissioner nominated by him. Although the Nandreas’ motion does not explicitly state that they do not seek recovery of costs from the third-party defendants, their counsel stated during the hearing on the motion for reconsideration, “we do not ask that the Court assess costs against any of the third-party defendants in this case.” Because the issue of allocating costs to the third-party defendants was not raised in the Nandreas’ motion to the district court, the court of appeals had no jurisdiction to decide that issue.
III.
Section 38-44-111, which accords the district court considerable discretion in assessing the costs of a boundary commission, provides that the costs “shall be taxed as the court thinks just....” The district court’s assessment of the costs of a boundary commission should be reviewed only for an abuse of discretion. Kelly v. Mullin, 159 Colo. 573, 413 P.2d 186 (1966); Brackett v. Cleveland, 147 Colo. 328, 363 P.2d 1050 (1963). The court of appeals did not use this deferential standard of review in considering the district court’s assessment of costs; instead, it substituted its own judgment for that of the district court.
Upon an examination of the record, we conclude that the district court did not abuse its discretion in assessing the costs of the boundary commission equally between the Nandreas and Lennon. The Nandreas’ complaint requested the appointment of the boundary commission, which led to the adjustment of all the property boundaries within the quarter-section. As the boundary commission found it necessary to do extensive surveying work, it was not an abuse of discretion to require the Nandreas to pay for half of that work. It also was reasonable for the court to tax half of the costs to Lennon, who built a house on the Nandreas’ property.
The judgment of the court of appeals is reversed and the case is remanded to the court of appeals with directions that the order of the district court requiring that-Lennon and the Nandreas bear equally the fees and expenses of the boundary commission be reinstated.
Judgment reversed and case remanded.
. Section 38-44-101 allows a property owner to bring a suit in district court to establish the location of disputed or destroyed boundaries or corners of the land. Sections 38-44-102 through 38-44-112 set out the procedure by which such a suit shall be conducted. Section 38-44-104 provides for the court to appoint one or more surveyors as a boundary commission "to locate the lost, destroyed, or disputed corners or boundaries.”
. The record before us indicates that the Nan-dreas’ surveyor incurred costs of $19,345 and Lennon’s, $31,979.71.
. The district court judge who received the commission’s report was a different judge from the one who appointed the commissioners. The second judge also entered the final order on allocation of costs.
. Section 38-44-111 provides:
The costs in the proceedings shall be taxed as the court thinks just and shall be a lien on the land or interest therein owned by the party or parties against whom they are taxed insofar as such lands are involved in the proceedings.
.The clerk of the court of appeals apparently misread the court’s docket sheet when he sent notices to the parties of the court’s decision. Confusion could arise because the docket sheet consisted of several pages, only the first page of which included the third-party defendants in the caption.
.Two petitions for rehearing were filed, which led to the two cases consolidated in this writ of certiorari. Kenneth Brewster, one of the original third-party defendants, filed a petition for rehearing that we here review on certiorari in case No. 83SC241. Several of the other original third-party defendants joined Brewster’s petition in this court. The second petition for rehearing was filed by the third-party defendants who were joined after the district court accepted the boundary commission’s report. Their petition for certiorari was accepted here in case No. 83SC248. Because the difference between the two groups of petitioners does not affect our opinion, we refer to all the petitioners as "third-party defendants."
. The court of appeals did not hear oral argument in this case, and the third-party defendants had no way of knowing when an opinion would be issued.
. The third-party defendants contend that the court of appeals’ failure to consider their petition for rehearing deprives them of property without due process of law, in violation of Article II, Section 25 of the Colorado Constitution and the Fifth Amendment of the United States Constitution.
. Effective January 1, 1985, C.R.C.P. 59 was amended to provide that "a motion for post-trial relief shall not be a condition precedent to appeal or cross-appeal_’’ Court Rules Update, C.R.S. Special Supp. (1984).
. The Nandreas' brief to the court of appeals stated that they “[did] not wish to be understood by the Appellate Court as arguing that all parties in the action should bear the costs of this action. ..
.The petitioners raised further issues regarding whether the court of appeals had personal jurisdiction over them and whether the Nan-dreas and Lennon had entered into a binding stipulation not to tax the third-party defendants with the costs of the boundary commission. Because of our determination that the court of appeals decision was erroneous in other regards, we need not reach these issues.
Reference
- Full Case Name
- Denice DeNier BREWSTER, of the Estate of Kenneth E. Brewster, Leonard L. and Dortha Hutterman, Charles D. and Nancy Musselman, Florence and William Burton Dunn, Raymond and Phyllis Kooken, and Linda S. Holsman v. L. Larry NANDREA and Ann T. Nandrea, the Board of County Commissioners of the County of Jefferson, and John R. Lennon, Respondents Rene FOURNIER, Marion S. Fournier, Victoria Shannon, Fred H. Tepley, and Eugene H. Tepley v. L. Larry NANDREA and Ann T. Nandrea, the Board of County Commissioners of the County of Jefferson, and John R. Lennon
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- 1 case
- Status
- Published