Rose v. City and County of Denver

Citations: 990 P.2d 1120; 1999 Colo. J. C.A.R. 3376; 1999 Colo. App. LEXIS 162; 1999 WL 374069Docket: 97CA1683

Court: Colorado Court of Appeals; June 10, 1999; Colorado; State Appellate Court

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Kathryn Rose, the plaintiff-appellant, appeals a judgment that dismissed her complaint against the City and County of Denver and Officer D.R. Savage, as well as an order denying her motion to add Sergeant Richard Mahoney as a defendant and the award of attorney fees to Officer Savage. The Colorado Court of Appeals affirms in part, vacates in part, and remands for further proceedings.

Rose contends the trial court erred by granting a directed verdict on her 42 U.S.C. § 1983 claim, which alleged malicious prosecution related to her arrest for disturbing the peace. The court finds no merit in her argument. Although Rose claims a violation of her First Amendment right to petition for redress, this argument was not presented during the trial, and thus, the court declines to address it on appeal.

Regarding the malicious prosecution claim, Rose argues that the trial court incorrectly determined there was probable cause for her arrest. The court, however, affirms the trial court's ruling, noting that when evaluating the evidence in the light most favorable to Rose, it does not support her claim. The relevant ordinance prohibits disturbing the peace through violent or offensive conduct. Evidence showed that a tree cutting crew was working near Rose's residence, and she was warned about the costs of this work. Four officers were called to the scene due to Rose's interference with the crew's activities, which included her taking photographs and refusing to move from under a tree, actions interpreted as defiance. The crew's foreperson, who reported Rose's behavior, indicated that her actions hindered their work, leading to the police involvement.

Officer Savage requested the foreperson to sign a complaint regarding the plaintiff's actions, which the plaintiff acknowledged would continue unless physically prevented. The document discusses the concept of obstreperous conduct, defined as stubborn defiance that can breach the peace by alarming others, as supported by various legal precedents. It concludes that if the plaintiff's actions alarmed the tree crew and impeded their lawful work, it could constitute a breach of the peace. The ordinance in question does not require loud or profane language or threats of violence for such conduct. The court upheld the trial court's finding that Officer Savage had probable cause to arrest the plaintiff for disturbing the peace, as the circumstances indicated that a crime had occurred.

Regarding the plaintiff's false imprisonment claim under the Governmental Immunity Act, the court found that there was no false imprisonment because Officer Savage had probable cause for the arrest. The discussion notes that legal justification for an arrest negates claims of false arrest or imprisonment. 

Lastly, the plaintiff's attempt to apply the relation-back doctrine to join Sergeant Mahoney as a defendant was rejected. The court emphasized that for the doctrine to apply, the sergeant must have received notice of the lawsuit within the statutory time frame, which did not occur in this case. The analysis of the timeline regarding the plaintiff's counterclaims and the applicable rules of civil procedure further supports this conclusion.

The sergeant's affidavit indicated he was unaware of a lawsuit until January 1996 and had never received the plaintiff's notice of intent to sue under the Governmental Immunity Act (GIA), rendering the filing time-barred. Consequently, the trial court's denial of the plaintiff's motion to apply the relation-back doctrine was upheld, referencing the case of Brown v. Teitelbaum. The plaintiff argued that her state tort claims against Officer Savage should relate back to her answer filed in county court since he was identified in the GIA notice. However, the court was not convinced, citing Banco Para El Comercio Exterior De Cuba v. First National City Bank, which necessitates court permission for amendments under C.R.C.P. 13(f), a requirement not met in this instance. 

On the issue of attorney fees awarded to the officer under C.R.S. 24-10-110(5)(c), the trial court's decision was deemed erroneous. The statute mandates fees only if the plaintiff's conduct is found willful and wanton. Following the ruling, the Colorado Supreme Court's decision in State v. Golden's Concrete Co. clarified that attorney fees in 42 U.S.C. § 1983 claims are governed by federal standards under 42 U.S.C. § 1988, allowing for fee recovery only if the plaintiff's action is shown to be frivolous or unreasonable. The trial court did not address the federal standard, focusing instead on the state statute, leading to the vacating of the fee award and remanding for further consideration of the federal standard. The dismissal of the plaintiff's claims was affirmed. Judges Briggs and Kapelke concurred with the decision.