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Martin v. Arapahoe County Court

Court of Appeals of Colorado, Sixth Division

October 20, 2016

Larry W. Martin, Petitioner-Appellant,
v.
Arapahoe County Court; Honorable Christina Apostoli; and Honorable Bonnie Heather McLean, Respondents-Appellees.

         Arapahoe County District Court No. 15CV30232 Honorable Kurt A. Horton, Judge

         JUDGMENT AFFIRMED

          Azizpour Donnelly, LLC, Katayoun A. Donnelly, Denver, Colorado, for Petitioner-Appellant

          Cynthia H. Coffman, Attorney General, Sueanna P. Johnson, Assistant Attorney General, Denver, Colorado, for Respondents-Appellees

          RICHMAN JUDGE

         ¶ 1 Petitioner, Larry W. Martin, filed this C.R.C.P. 106(a)(4) action in district court against respondents, the Arapahoe County Court, Magistrate Christina Apostoli, and former Magistrate Bonnie McLean, seeking review of a temporary civil protection order entered against him in county court. The district court dismissed the case for lack of subject matter jurisdiction. We conclude that the district court correctly dismissed the case because a civil protection order is not a final decision reviewable under C.R.C.P. 106, and under the circumstances in this case, Martin had other adequate remedies provided by law. Therefore, we affirm the dismissal.

         I. Background

         ¶ 2 On November 26, 2014, Martin's business acquaintance, L.O., filed a complaint for a civil protection order against him in county court, claiming that Martin was stalking her. The complaint alleged that Martin had sent L.O., her husband, her brother, and her sister-in-law over seventy e-mails from thirteen different e-mail addresses in which he professed his love for her and falsely claimed she was divorcing her husband and having an affair. L.O. also asserted that Martin's e-mails described events he could have known about only by observing her activities.

          ¶ 3 After an ex parte hearing the same day, the county court entered a temporary civil protection order pursuant to section 13-14-104.5, C.R.S. 2016. In its order, the county court found, based on L.O.'s testimony, that Martin constituted a credible threat, and that an imminent danger existed to the life and health of L.O. The temporary order required Martin to stay at least 150 yards away from L.O. and her home. The county court set a hearing for December 10, 2014, to determine whether the temporary order should be made permanent, and it issued a citation ordering Martin to appear on that date.

         ¶ 4 Martin appeared with counsel on December 10 and requested a continuance. The court reset the permanent order hearing for December 30, 2014, and continued the temporary order. On the morning of the December 30 hearing, Martin filed a motion to vacate the temporary order and dismiss L.O.'s complaint, arguing that (1) the statutory requirements for issuing a temporary civil protection order were not met and (2) the statutes governing temporary and permanent civil protection orders were unconstitutional. At the hearing, the county court denied the motion to vacate the temporary order, but, at the urging of Martin, it continued the hearing on the permanent order to allow briefing from the Attorney General's office regarding the constitutionality of the statutes. It extended the temporary order and reset the permanent order hearing for February 26, 2015.

         ¶ 5 Before the February 26 hearing, however, Martin filed this action in district court, naming as defendants the Arapahoe County Court and judges of that court and seeking review of the temporary protection order under C.R.C.P. 106(a)(4). In his complaint, Martin alleged that the county court exceeded its jurisdiction in issuing the temporary order because the evidence before the county court did not demonstrate imminent danger to L.O.'s life or health.[1] The county court stayed the protection order proceedings and extended the temporary order pending the resolution of the C.R.C.P. 106 action.

         ¶ 6 The county court defendants then moved to dismiss the C.R.C.P. 106 action for lack of subject matter jurisdiction, arguing that (1) the temporary order was not a "final decision" reviewable under C.R.C.P. 106 and (2) Martin had other adequate remedies because he could challenge the temporary order at the permanent order hearing and appeal a permanent order if one was entered.

         ¶ 7 After briefing, the district court granted the motion to dismiss "for the reasons argued by the ...


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