Opinion · Colorado Court Opinions

INWOOD INDUSTRIES v. PRIESTLEY, 37 Colo. App. 78 (1975)

545 P.2d 732

Type
Opinion
Court
Colorado Court Opinions
Jurisdiction
Colorado
Date
1975-11-06
Topic
general

INWOOD INDUSTRIES v. PRIESTLEY, 37 Colo. App. 78 (1975) (545 P.2d 732) Inwood Industries, Inc., a Colorado corporation, J. DeBeer Son, Inc.,Gladiator Athletic, Inc., and Twin City Knitting Co., Inc., a corporationv. Gene Priestley, d/b/a Pikes Peak Sporting Goods No. 75-253Colorado Court of Appeals.

Citator

UpLaw has not yet analyzed INWOOD INDUSTRIES v. PRIESTLEY, 37 Colo. App. 78 (1975). The absence of a flag is not a finding that it is good law.

INWOOD INDUSTRIES v. PRIESTLEY,37 Colo. App. 78(1975)
(545 P.2d 732)
Inwood Industries, Inc., a Colorado corporation, J. DeBeer Son, Inc.,
Gladiator Athletic, Inc., and Twin City Knitting Co., Inc., a corporation
v. Gene Priestley, d/b/a Pikes Peak Sporting Goods
No. 75-253
Colorado Court of Appeals.
Decided November 6, 1975. Rehearing denied December 4, 1975. Certiorari
granted February 2, 1976.
In attachment proceedings initiated prior to date that new attachment rules became effective, trial court denied defendant's traverse and application to discharge attachment, utilizing expired rules, and subsequently ordered portion of attachment sale proceeds distributed. Defendant appealed.Affirmed in Part, Reversed in Part.
1.ATTACHMENT—Traverse — Whether Timely — New Rules — Effect — WhetherRetroactive.Where defendant failed to file timely traverse and application to discharge in accordance with rules existing at time attachment proceedings were initiated, his subsequent attempts to file according to time provisions of new rules promulgated by Supreme Court were unavailing inasmuch as those rule revisions became effective several months after debt action originated and were not designated by the Supreme Court as having any retroactive effect.
2.Sale Proceeds — Disbursement — When Authorized — Final DeterminationOn Merits — When Defendant Prevails — Effect.Since if defendant in contract action prevailed, he would be entitled toallproceeds of attached goods, the trial court erred in distributing portion of attachment sale proceeds for transportation, storage, and copying costs incident to that sale.
Appeal from the District Court of El Paso County, Honorable Robert W. Johnson, Judge.
No appearance for plaintiff-appellee or intervenors-plaintiffs.

David C. Vigil, Charles S. Vigil, for defendant-appellant.Division III.
Opinion by JUDGE RULAND.Page 79
Pursuant to C.R.C.P. 102(aa), defendant, Gene Priestley, d/b/a Pikes Peak Sporting Goods, appeals from a judgment denying his traverse and application to discharge an attachment and from a subsequent order disbursing a portion of the proceeds from sale of part of the attached property. We affirm in part and reverse in part.

Plaintiff, Inwood Industries, Inc., initiated the present action in August 1974 with the filing of a complaint alleging an indebtedness from defendant of $6,127.40 arising out of a contract. Attachment proceedings were also instituted pursuant to C.R.C.P. 102, and defendant's "merchandise, equipment, stock in trade Office Equipment" were subject to a levy. Subsequently, within the 30-day time limit specified in C.R.C.P. 102(j)(1), three intervenors-plaintiffs filed complaints and affidavits in attachment against defendant.

No attempt was made to file either an application to discharge the writ of attachment or traverse within the time limitations of C.R.C.P. 102, which provided that the application to discharge must be filed "at any time before the time for answer expires," C.R.C.P. 102(y), and the traverse "within twenty days after the service of the writ of attachment," C.R.C.P. 102(p). C.R.C.P. 102 was then repealed and reenacted by our Supreme Court with substantial revisions on January 1, 1975.See4Colo. Lawyer451 et seq. (Feb. 1975).

At a hearing held on January 23, 1975, defense counsel stated that he intended to file a traverse pursuant to the revised rule on attachments which provides that both an application to discharge attachment and a traverse of the affidavit in attachment may be filed at any time before trial on the merits of plaintiff's complaint.SeeC.R.C.P. 102(n) and (w) as revised (1975 Supp.). However, inasmuch as the attached property was depreciating in value, defendant agreed that the attached property could be sold. Another hearing was scheduled for January 30 at which time further details relating to the sale of defendant's property were to be considered.

Defendant then filed his application to discharge on January 24 and his traverse on January 30, 1975. The trial at that time had been set for February 11, 1975, but according to the record before us has been continued.

Although a transcript of the January 30 hearing has not been included in the record, it appears that defense counsel did not appear. As a result of the hearing, a written order was entered on February 5, 1975,nunc pro tuncJanuary 30, 1975, whereby the trial court, insofar as relevant here, denied defendant's traverse and application to discharge the attachment on the ground that the attachment rules which were in effect prior to January 1, 1975, were applicable to the case at bar. Pursuant to former rule C.R.C.P. 102(s), the court also ordered the sale of the attached property.

A public sale was held in February 1975 at which only defendant's merchandise was sold. At the hearing on defendant's "motion for a newPage 80trial" in March, the court ordered payment to the State of Colorado on a tax lien pursuant to a warrant of distraint and payment of the fees of the auctioneer. Defendant does not now contest this order nor the sale. At the same hearing, the trial court determined to hold in abeyance a decision on both payment of costs to the warehouse company for transportation and storage of the attached property pending sale and on payment of copying costs for the sale inventory.

Subsequent to this hearing, and after defendant had filed his notice of appeal, upon motion of intervenors-plaintiffs for sale of the remainder of the attached property, another hearing was held. During the course of this hearing the trial court ordered payment from the sale proceeds of the costs previously held in abeyance.

On this appeal defendant first contends that his traverse and application for discharge should not have been dismissed because they were timely under the January 1975 revisions to C.R.C.P. 102. We agree with the trial court's ruling.

In addition to changing the time limit within which the traverse and motion to discharge must be filed, our Supreme Court revised C.R.C.P. 102 in other respects. Insofar as material here, the revised rule would invalidate the writ obtained by plaintiff because it was issued by the clerk of the district court and not by the court itself, and because the writ failed to advise defendant of his right to traverse.SeeC.R.C.P. 102(e) and (f) (1975 Supp.). Additionally, one of the grounds for attachment alleged by plaintiff under the former rule, namely, that defendant refused to pay the value of goods upon delivery,seeC.R.C.P. 102(b)(11), has been eliminated from the revised rule.SeeC.R.C.P. 102(c) (1975 Supp.). Finally, the revised rule requires that the affidavit set forth specific facts supporting the grounds of attachment, and plaintiff's affidavit merely alleges the grounds specified under the former rule without alleging specific facts.SeeC.R.C.P. 102(c) (1975 Supp.).

Defendant agrees that the right to obtain property by attachment or garnishment may be based upon Supreme Court rule.See Worchester v.State Farm Mutual Automobile Insurance Co.,172 Colo. 352,473 P.2d 711. Prior to adoption of the Colorado Rules of Civil Procedure, attachment proceedings were governed by statute,seeC.S.A. 1935, Code of Civ. Proc. § 97 et seq., and an amendment which eliminated a ground for attachment was considered as not having retroactive effect.Day v. Madden,9 Colo. App. 464,48 P. 1053;Mulnix v. Spratlin,10 Colo. App. 390,50 P. 1078;see also National Bank of Commerce v. Riethmann,79 F. 582(8th Cir.).[1]Pursuant to §13-2-108, C.R.S. 1973, (enacted originally in Colo. Sess. Laws 1913, ch. 121, p. 447) rules governing attachment proceedings were included in the Colorado Rules of Civil Procedure adopted in 1941. Various changes were made with the goal of improving the former procedure under the Code.See1 C.S.A. 1935, Rules of Civil Procedure, Appendix D at p. 524 (repl. vol. 1941). The Supreme Court provided that these RulesPage 81would apply to pending cases unless their application would not be feasible or would be unjust.SeeColo. Rules Civ. Proc. 1(b) appearing as a supplement in volume 107 of the Colorado Reports. A similar provision was adopted by our Supreme Court when substantial revisions were made to various Rules of Civil Procedure in 1970.SeeC.R.C.P. 1(b). However, the present amendments to C.R.C.P. 102 indicate only that they are "effective January 1, 1975." 4Colo. Lawyer455 (Feb. 1975). In view of the substantial modifications made to C.R.C.P. 102 by its repeal and reenactment and in view of the fact that the Supreme Court has not indicated otherwise, we conclude that the new rule has no retroactive effect. The revisions to C.R.C.P. 102 not having retroactive effect, the trial court correctly dismissed the traverse and application to discharge as untimely under the former rule.

Defendant also contends that the trial court erred on various grounds in ordering a portion of the proceeds from the sale of attached property to be used to pay transportation and storage costs and costs of copying the sale inventory. Upon analysis of C.R.C.P. 102, we conclude that this order of the trial court was entered prematurely.[2]C.R.C.P. 102(1) (now C.R.C.P. 102(m) (1975 Supp.)), provides that where creditors prevail in the action on the merits, "the money realized from the attachment proceedings,after paying all costs taxed in theattachment action, shall be paid to the participating creditors in proportion to the amounts of their several judgments . . . ." (emphasis supplied) Where judgment is for defendant, C.R.C.P. 102(v) (now C.R.C.P. 102(t) (1975 Supp.)) provides, insofar as relevant, that "allthe proceeds of sales . . . shall be delivered to the defendant. . . ." (emphasis supplied) Hence, in the event that defendant should prevail in a trial on the merits, the rule precludes any deduction of costs of sale from the proceeds. Therefore, from an order relative to costs must await a determination of the action on the merits, and the order of the trial court disbursing a portion of the proceeds for transportation, storage, and copying of the inventory must be reversed.

We have considered defendant's other allegations of error and find them to be without merit.

The judgment of the trial court denying defendant's application for discharge of attachment and traverse is affirmed. The order disbursing sale proceeds for transportation, storage, and inventory copying is reversed and the cause is remanded for further proceedings relative thereto in conjunction with trial on the merits of plaintiff's complaint.

JUDGE BERMAN and JUDGE VAN CISE concur.Page 82