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Auxier v. McDonald

Court of Appeals of Colorado, Seventh Division

April 23, 2015

Jeff Auxier, Plaintiff-Appellant,
v.
Dara McDonald, in her capacity as Administrator for the City of Salida; Planning Commission, City of Salida; City Council, City of Salida; and City of Salida, Colorado, Defendants-Appellees

Page 748

Chaffee County District Court No. 13CV30003. Honorable Charles M. Barton, Judge.

Jeff Auxier, Pro se.

Karp Neu Hanlon, P.C., Karl J. Hanlon, Jeffrey J. Conklin, Glenwood Springs, Colorado, for Defendants-Appellees.

Lichtenstein and Berger, JJ., concur.

OPINION

Page 749

NAVARRO, JUDGE.

[¶1] In this case, we consider whether C.R.C.P. 106(b) permits a party to bring a claim under C.R.C.P. 106(a)(4) after the limitations period for such a claim has expired so long as that party sought other relief under C.R.C.P. 106(a) within the limitations period. We hold that C.R.C.P. 106(b) does not permit a party to do so.

[¶2] Plaintiff, Jeff Auxier, appeals the district court's judgment entered after dismissal of two claims in his amended complaint. He contends that the court erred by dismissing his C.R.C.P. 106(a)(4) claim against the City of Salida Planning Commission (Planning Commission) and his C.R.C.P. 106(a)(2) claim against Dara McDonald, Administrator for the City of Salida (Administrator). We disagree and therefore affirm.

I. Factual Background

[¶3] Jon and Julia Fritz obtained a building permit to construct an accessory structure at a Salida address adjacent to Auxier's property. Auxier objected to construction of the structure. He appealed several decisions related to the project to the Planning Commission, including suspension of the building permit until the Fritzes submitted a plan change to address off-street parking. After a hearing on Auxier's consolidated appeals, the Planning Commission affirmed the issuance of the building permit and approval of the plan change on January 10, 2013.[1]

[¶4] On January 25, 2013, Auxier filed a complaint in the district court alleging four claims for relief and naming the following defendants: the Administrator, the Fritzes, and Chalk Creek Initiative LLC. Auxier's claim against the Administrator was for " mandamus" ; he sought an order compelling her to revoke the Fritzes' building permit and certificate of occupancy.

[¶5] Before the district court ruled on the Administrator's motion to dismiss, Auxier filed an amended complaint on March 25, 2013 -- seventy-four days after the Planning Commission's final decision. The amended

Page 750

complaint added the City of Salida, the Salida City Council, and the Planning Commission as defendants (collectively with the Administrator, the City Defendants). The amended complaint also added a Rule 106(a)(4) claim against the Planning Commission, alleging that it had abused its discretion or exceeded its jurisdiction in " upholding" the Administrator's issuance of the building permit to the Fritzes.

[¶6] The City Defendants moved to dismiss the claims against them in the amended complaint. The district court found that Auxier's Rule 106(a)(4) claim against the Planning Commission was untimely because it had not been filed within twenty-eight days of the Planning Commission's final decision and it did not relate back to the original complaint. The court, therefore, dismissed this claim for lack of subject matter jurisdiction. Construing Auxier's claim against the Administrator as seeking mandamus relief under Rule 106(a)(2), the court dismissed it for failure to state a claim upon which relief could be granted.

[¶7] After Auxier's claims against the other defendants were resolved, the district court entered final judgment pursuant to C.R.C.P. 58(a). Auxier then brought this appeal.

II. Rule 106(a)(4) Claim Against the Planning Commission

[¶8] Auxier contends that the district court erred by finding untimely his Rule 106(a)(4) claim against the Planning Commission set forth in the amended complaint. According to him, this claim related back to his original complaint because that complaint gave " ample notice" of facts " giving rise to a [Rule] 106(a)(4) claim" against the Planning Commission -- even though the original complaint sought only mandamus relief against the Administrator under Rule 106(a)(2).[2] Alternatively, Auxier argues that, regardless of whether his original complaint gave notice of a Rule 106(a)(4) claim, Rule 106(b) permitted him to add such a claim at any time with leave of the court because his Rule 106(a)(2) claim in the original complaint was timely. We reject both contentions.

A. Standard of Review

[¶9] We apply a mixed standard of review to a district court's dismissal of a claim under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction. Bd. of Cnty. Comm'rs v. City of Black Hawk, 2012 COA 172, ¶ 10, 292 P.3d 1172. We review factual ...


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