COLORADO COURT OF APPEALS                                      2016COA154

Court of Appeals No. 15CA1218
Arapahoe County District Court No. 15CV30232
Honorable Kurt A. Horton, Judge


Larry W. Martin,

Petitioner-Appellant,

v.

Arapahoe County Court; Honorable Christina Apostoli; and Honorable Bonnie
Heather McLean,

Respondents-Appellees.


                           JUDGMENT AFFIRMED

                                  Division VI
                         Opinion by JUDGE RICHMAN
                         Bernard and Fox, JJ., concur

                         Announced October 20, 2016


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
¶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.


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¶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,


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 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


 1Martin also alleged that the county court failed to comply with
 certain requirements for issuing an ex parte temporary restraining
 order under C.R.C.P. 65(b). However, the temporary civil protection
 order in this case was issued under section 13-14-104.5, C.R.S.
 2016, and Martin does not argue on appeal that C.R.C.P. 65(b)
 applies to such orders.

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  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 movant.” This appeal followed.

                              II.   Discussion

¶8     Martin contends that the district court erred in ruling that it

  lacked subject matter jurisdiction to review the temporary civil

  protection order under C.R.C.P. 106(a)(4). We disagree.

                        A.     Standard of Review

¶9     Where, as here, the facts are undisputed and the jurisdictional

  determination presents a question of law, we review the issue of

  subject matter jurisdiction de novo. Hendricks v. Allied Waste

  Transp., Inc., 2012 COA 88, ¶ 10.

                         B.     C.R.C.P. 106(a)(4)

¶ 10   C.R.C.P. 106(a)(4) authorizes district court review where a

  lower judicial body has “exceeded its jurisdiction or abused its

  discretion, and there is no plain, speedy and adequate remedy

  otherwise provided by law.”


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¶ 11   A complaint seeking review under C.R.C.P. 106(a)(4) may be

  filed only after the judicial body has issued a final decision on the

  matter at issue. See C.R.C.P. 106(b) (complaint seeking review

  under C.R.C.P. 106(a)(4) shall be filed “not later than 28 days after

  the final decision of the body or officer”); Buck v. Park, 839 P.2d

  498, 500 (Colo. App. 1992) (complaint must be filed within thirty

  days under former version of rule). The filing requirements of

  C.R.C.P. 106(b) are jurisdictional in nature. Citizens for

  Responsible Growth v. RCI Dev. Partners, Inc., 252 P.3d 1104, 1106

  (Colo. 2011).

¶ 12   A final decision is one that “ends the particular action in

  which it is entered, leaving nothing further to be done to completely

  determine the rights of the parties.” Id. at 1106-07. Whether a

  judicial decision is “final” for purposes of C.R.C.P. 106(b)

  “necessarily depends upon the scope and nature of the proceeding

  and rights at issue.” Id. at 1107.

¶ 13   A final decision for purposes of C.R.C.P. 106(b) review is not

  synonymous with a final judgment for purposes of appellate review.

  In the context of criminal cases, divisions of this court have held

  that a C.R.C.P. 106(a)(4) complaint filed before a final judgment “is


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  appropriate to protect certain rights that would be significantly

  undermined if a party were required to proceed to trial prior to

  obtaining review.” Hills v. Westminster Mun. Court, 215 P.3d 1221,

  1224 (Colo. App. 2009) (reviewing alleged speedy trial violation),

  aff’d, 245 P.3d 947 (Colo. 2011); accord Kane v. Cty. Court, 192

  P.3d 443, 444 (Colo. App. 2008) (reviewing trial judge’s denial of a

  motion to recuse); see also Byrd v. Stavely, 113 P.3d 1273, 1275-76

  (Colo. App. 2005) (reviewing trial court’s ruling that the defendants

  were not entitled to a jury trial).

¶ 14   Nevertheless, C.R.C.P. 106 review is extraordinary in nature,

  and it is not warranted where an adequate alternative remedy exists

  under ordinary appellate procedures or other statutory avenues of

  review. See State v. Dist. Court, 802 P.2d 473, 476-77 (Colo. 1990);

  Kirbens v. Martinez, 742 P.2d 330, 333 (Colo. 1987).

¶ 15   No published Colorado appellate decision has addressed

  whether a county court’s entry of a temporary civil protection order

  under section 13-14-104.5 is reviewable under C.R.C.P. 106(a)(4).

                   C.    Civil Protection Order Statutes

¶ 16   Section 13-14-104.5(1)(a) authorizes county courts to issue

  temporary or permanent civil protection orders for several


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  enumerated purposes, including to enjoin stalking.

  § 13-14-104.5(1)(a)(V).

¶ 17   The legislative declaration to the article governing civil

  protection orders states:

             (1) The general assembly hereby finds that the
             issuance and enforcement of protection orders
             are of paramount importance in the state of
             Colorado because protection orders promote
             safety, reduce violence and other types of
             abuse, and prevent serious harm and death.

             ...

             (4) . . . [T]he general assembly finds and
             declares that stalking is a dangerous, high-risk
             crime that frequently escalates over time and
             that sometimes leads, tragically, to sexual
             assault or homicide. . . . While stalking
             behaviors may appear innocuous to outside
             observers, the victims often endure intense
             physical and emotional distress that affects all
             aspects of their lives and are more likely than
             others to express anxiety, depression, and
             social dysfunction.

  § 13-14-100.2, C.R.S. 2016.

¶ 18   Section 13-14-104.5(4) requires the court to set a hearing on a

  request for a temporary civil protection order “at the earliest

  possible time” and provides that the hearing may be ex parte. The

  court may issue a temporary civil protection order upon a finding



                                     7
  that “an imminent danger exists to the life or health of one or more

  persons.” § 13-14-104.5(7)(a).

¶ 19   If a temporary protection order is issued, the court must issue

  a citation “commanding the respondent to appear before the court

  at a specific time and date and to show cause, if any, why said

  temporary civil protection order should not be made permanent.”

  § 13-14-104.5(8). The return date must be no more than fourteen

  days after the date of the temporary order. § 13-14-104.5(10).

¶ 20   At the permanent order hearing, the court may make the

  temporary order permanent, or enter a permanent order on different

  terms, finding that the respondent “has committed acts constituting

  grounds for issuance of a civil protection order and that unless

  restrained will continue to commit such acts or acts designed to

  intimidate or retaliate against the protected person.”

  § 13-14-106(1)(a), C.R.S. 2016. A finding of “imminent danger” is

  not required at this stage. Id.; In re Marriage of Fiffe, 140 P.3d 160,

  162 (Colo. App. 2005). The grounds for the issuance of a

  permanent protection order are those set forth in section

  13-14-104.5. The court may vacate the temporary order if the

  statutory requirements are not met. Alternatively, the court may


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  continue the permanent order hearing and extend the temporary

  protection order for good cause, if both parties are present and

  agree to the continuance. § 13-14-106(1)(b).

                              D.    Analysis

¶ 21   We conclude that the temporary civil protection order entered

  against Martin was not subject to district court review in a C.R.C.P.

  106 action.

¶ 22   First, a temporary protection order issued under section

  13-14-104.5 is not the county court’s “final decision” on a plaintiff’s

  request for a civil protection order. Section 13-14-104.5 merely

  permits a court to make an initial determination as to whether an

  imminent danger exists to the person seeking protection, and to

  issue a temporary protection order based on that finding. However,

  the temporary protection order is not a final determination of the

  rights of the parties. See Citizens for Responsible Growth, 252 P.3d

  at 1106-07. The statute contemplates that a final ruling regarding

  the plaintiff’s entitlement to a civil protection order, and the terms

  of the order, will be made at the permanent order hearing. See

  § 13-14-106(1)(a). Thus, we conclude that the temporary protection




                                     9
  order is not a final decision subject to review in a C.R.C.P. 106

  action.

¶ 23   Second, the permanent order hearing and ordinary appellate

  procedures provide adequate alternative remedies for challenging a

  temporary restraining order. The permanent protection order

  hearing gives the respondent a prompt opportunity to challenge the

  court’s initial ex parte findings and raise any jurisdictional or

  procedural deficiencies. Any permanent order entered by the

  county court may then be appealed. We conclude that these

  procedures provide a “plain, speedy[,] and adequate remedy,” which

  precludes review of a temporary protection order under C.R.C.P.

  106(a)(4).

¶ 24   In this case, Martin sought to challenge the county court’s

  initial finding of “imminent danger” by filing a C.R.C.P. 106 action.

  We conclude that the permanent order hearing provided an

  adequate opportunity to challenge the evidence supporting that

  initial determination. Although a different legal standard applies to

  permanent protection orders, Martin could nevertheless have raised

  this issue during the hearing in arguing that the temporary order

  should be vacated and no permanent order should be entered.


                                     10
  Thus, Martin’s challenge was not properly the subject of a C.R.C.P.

  106 action.

¶ 25   C.R.C.P. 106 review is extraordinary in nature, and allowing

  respondents to challenge temporary restraining orders in this

  manner would circumvent the statutory procedures governing civil

  protection orders and lead to unnecessary delay. Indeed, by filing

  this C.R.C.P. 106 action, Martin has extended the duration of the

  temporary order far beyond the fourteen days within which he could

  have challenged the order under the statutory procedures set forth

  in section 13-14-104.5.

¶ 26   In addition, we are not persuaded by Martin’s reliance on Stull

  v. District Court, 135 Colo. 86, 308 P.2d 1006 (1957), and

  Intermountain Rural Electric Association v. District Court, 160 Colo.

  128, 414 P.2d 911 (1966). In Stull, the supreme court applied a

  prior version of C.R.C.P. 106 to review a temporary restraining

  order governed by C.R.C.P. 65(b). 135 Colo. at 92-94, 308 P.2d at

  1010. The supreme court held that the district court had exceeded

  its jurisdiction by entering an order without complying with any of

  the requirements of C.R.C.P. 65(b), and that no plain, speedy, and

  adequate remedy existed apart from C.R.C.P. 106 review. Id.


                                    11
  Similarly, the supreme court held in Intermountain that a temporary

  restraining order that has been entered without jurisdiction was

  void because it did not comply with C.R.C.P. 65(b). 160 Colo. at

  133-34, 414 P.2d at 913-14. Neither case involved a temporary

  protection order issued under section 13-14-104.5, which provides

  statutory procedures for promptly addressing the challenges that

  Martin sought to raise in this C.R.C.P. 106 action. Accordingly, we

  conclude that Intermountain and Stull are inapposite.

¶ 27   Finally, we disagree with Martin’s contention that the county

  court was lacking jurisdiction to enter the temporary protection

  order because there was not sufficient evidence of an imminent

  danger to L.O. We do not read as jurisdictional the statutory

  provision stating that “[a] temporary civil protection order may be

  issued if the . . . magistrate finds that . . . an imminent danger

  exists to the life or health of one or more persons.”

  § 13-14-104.5(7)(a). Insufficient evidence of a fact necessary to

  enter an order or judgment does not generally deprive a court of

  jurisdiction to hear the case. Martin cites no Colorado authority

  suggesting otherwise.




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¶ 28   Because the temporary protection order entered against

  Martin was within the court’s jurisdiction and was not a final

  decision, and adequate alternative remedies existed for challenging

  the order, we conclude that the district court lacked subject matter

  jurisdiction to review the temporary restraining order under

  C.R.C.P. 106(a)(4).

                            III.   Conclusion

¶ 29   The judgment is affirmed.

       JUDGE BERNARD and JUDGE FOX concur.




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