text:
    The PEOPLE of the State of Colorado, Complainant, v. Julia M. ROYE, Respondent.
    No. 02PDJ081.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    April 17, 2003.

      Opinion by a Hearing Board consisting of the Presiding Disciplinary Judge, ROGER L. KEITHLEY, and Hearing Board Members DANTE J. JAMES and KATHRYN S. LONOWSKI, both members of the Bar.
   REPORT, DECISION AND IMPOSITION OF SANCTION

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR ONE YEAR AND ONE DAY

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on March 5, 2008, before a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley ("PDJ") and two Hearing Board members, Dante J. James and Kathryn S. Lonowski, both members of the bar. Fredrick J. Kraus, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Julia M. Roye, the respondent ("Roye"), did not appear either in person or by counsel.

The People filed a Complaint in this matter on September 24, 2002. The Proof of Service filed November 14, 2002 indicated that the Citation and Complaint were sent via certified and regular mail to Roye on September 25, 2002 to her registered home address. Roye failed to file an Answer or otherwise respond to the Complaint.

The People moved for default on the claims set forth in the Complaint, and on December 5, 2002, the PDJ granted the motion as to the facts set forth therein, which were deemed admitted. The PDJ granted default as to the alleged rule violations set forth in the Complaint, which were deemed established, with the exception of claim six alleging a violation of Colo. RPC 8.1(b), which was subsequently withdrawn.

At the sanctions hearing, exhibits 1 and 2 were offered by the People and admitted into evidence. Aaron W. Barrick testified on behalf of the People. The Hearing Board considered the People's argument, the facts established by the entry of default, the exhibits admitted, the testimony of the witness, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Julia Matilda Roye has taken and sub-seribed to the oath of admission, was admitted to the bar of the Supreme Court on October 23, 1995 and is registered upon the official records of this court under attorney registration number 26240. Roye is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the Complaint were deemed admitted by the entry of default, and are therefore established by clear and convincing evidence. See Complaint attached hereto as exhibit "1." The entry of default also established the alleged violations of the Rules of Professional Conduct set forth therein.

II. CONCLUSIONS OF LAW AND IMPOSITION OF SANCTION

The Complaint in the within matter alleges that Roye violated the following Colorado Rules of Professional Conduct: claim one, Colo. RPC 1.3(a lawyer shall act with reasonable diligence and promptness in representing a client and shall not neglect a legal matter entrusted to that lawyer); claim two, Colo. RPC 1.4(a)(a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information) and Colo. RPC 1.4(b)(a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); claim three, Colo. RPC 3 A4(c)(a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); claim four, Colo. RPC 8.4(d)(a lawyer shall not engage in conduct that is prejudicial to the administration of justice), and claim five Colo. RPC 1.16(d)(upon termination, a lawyer shall take steps to protect a client's interest and surrender papers and property to the client).

The allegations giving rise to this Complaint involve Roye's representation of one client. Roye filed injunctive proceeding to prevent seizure of equipment on behalf of the client on November 15, 2000, in Adams County District Court. The defendant filed an answer, a counterclaim and a third-party complaint. The parties resolved all issues with the exception of those alleged in the counterclaims. The case was set for trial on December 8, 2001. A status conference was set for November 5, 2001. Roye knew of the status conference and failed to appear.

The judge's division attempted to contact Roye, but Roye did not respond. On November 14, 2001, the court issued an order requiring Roye to contact the division no later than November 20, 2001 and state why the case had not been prosecuted. Roye did not respond to the order. Opposing counsel attempted to communicate by telephone with , Roye on numerous occasions and she did not return the telephone calls. The client appeared before the court on November 20, 2001, and requested that the matter be continued so that new counsel could be obtained, and the court vacated the trial date. The client hired replacement counsel on November 27, 2001. The client attempted to contact Roye to request that she turn over the file and bring replacement counsel up to date. Roye did not respond. Replacement counsel attempted to contact Roye directly to no avail and subsequently reconstructed the file from court records. The client incurred additional costs due to Roye's abandonment. The case was eventually resolved through mediation.

Roye neglected the legal matter entrusted to her in violation of Colo. RPC 1.8 by failing to appear for a status conference and respond to the subsequent order of court; failing to prosecute the case; failing to participate in the drafting of a proposed case management and trial management order; failing to engage in discovery, and by failing to respond to the court, her client, opposing and replacement counsel.

The facts established by the entry of default demonstrate that Roye effectively deserted and/or rejected the client. Such misconduct constitutes abandonment. To find abandonment rather than merely neglect, there must be proof that the attorney-during a given time period-was required to accomplish specific professional tasks for the client, failed to accomplish those tasks, and failed to communicate with the client. The proof must objectively indicate that the attorney has deserted, rejected and/or relinquished the professional responsibilities owed to the client. People v. Powell, 37 P.3d 545, 548 (Colo.O.P.D.J.2001), citing People v. Carvell, 62 P.3d 167 (Colo.PDJ 2000); 2000 Colo. Discipl. LEXIS 26. In the present case, Roye effectively terminated the attorney-client relationship when she failed to communicate with the court, her client, and opposing counsel over a four-month period despite their numerous attempts to communicate with her. Her disregard of the client's request that she turn over the file to replacement counsel and her failure to communicate with replacement counsel triggered the requirements of Colo. RPC 1.16(d), requiring her to take reasonable steps to protect the client's interests upon termination. She failed to do so. The totality of such conduct constitutes abandonment.

Roye failed to adequately communicate with the client in violation of Colo. RPC 1.4(a) and failed to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Roye failed to respond to her client's repeated telephone calls after August 2001; she made no efforts to communicate with the client or replacement counsel when he was hired in November 2001; she failed to advise the client as to the date of the status conference and the possible legal effects of failing to attend the conference, and she failed to advise the client of the court's order requiring Roye to file a written status report and the possible legal effects of her failing to do so.

Roye knowingly disobeyed an obligation under the rules of a tribunal in violation of Colo. RPC 8.4(c) when she failed to appear for a status conference and thereafter failed to comply with the court order requiring her to advise the court in writing or in person as to the status of the case.

Roye directly delayed and altered the course of court proceedings by failing to participate in a case management order, a trial management order, discovery, and two status conferences and thereby caused prejudice to the administration of justice in violation of Colo. RPC 8.4(d).

Finally, due to Roye's abandonment of the matter, the client was constrained to hire replacement counsel who requested that Roye provide the client's file to him. Roye failed to return the client's files and papers despite demands and requests that she do so. Roye failed to take steps to the extent reasonably practicable to protect a client's interest in surrendering papers and property to which the client was entitled in violation of Colo. RPC 1.16(d).

III. IMPOSITION OF SANCTION

Under the ABA Standards for Imposing Lawyer Samctions (1991 & Supp. 1992)("ABA Standards") neglect rising to the level of abandonment warrants a sanction ranging from suspension to disbarment, depending on the facts of each case. See ABA Standard § 4 42(a)(providing that "[sluspension is generally appropriate when (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client"); ABA Standard § 4.41(a)(providing that "[dlisbarment is generally appropriate when a lawyer abandons the practice and causes serious or potential serious injury to a client"). Colorado case law is consistent with this range of sanction.

In People v. Odom, 914 P.2d 342 (Colo.1996), the attorney was suspended for three years for failing to keep one client informed regarding an offer by the estranged spouse to increase child support and failing to keep the client informed regarding social security benefits, misconduct which resulted in harm to the client. In a separate case, the attorney failed to perform requested services in a criminal matter, failed to refund a retainer, and abandoned the client The attorney failed to participate in the disciplinary proceedings. In arriving at a three-year suspension, the Supreme Court stated:

Prior case law would sustain either a long period of suspension or disbarment in his case. However, "[gliven the abbreviated record in these default proceedings, and the facts and circumstances of this particular case, we elect to ... impose a period of suspension rather than disbarment."

914 P.2d at 345, (quoting People v. Crimaldi, 854 P.2d 782, 786 (Colo.1993)).

In Odom, the Court considered several aggravating factors including the attorney's prior discipline and assessed a three-year period of suspension. In People v. Rishel, 956 P.2d 542 (Colo.1998) the Supreme Court suspended the attorney for one year and one day for seriously neglecting two client matters and recommended special conditions for reinstatement. In Carvell, 62 P.3d at 171, the Hearing Board suspended the attorney for one year and one day for failing to communicate with one client over a five-month period during a critical time in the proceeding, failing to provide the court with his client's financial information, failing to notify the client of the final orders hearing, failing to appear on the client's behalf, and failing to cooperate with the Office of Attorney Regulation Counsel's investigation. The within case is similar to Carvell in that the matter involved one client and one instance of abandonment. As in Carvell, there is no allegation that Roye misappropriated funds. Similarly, in Powell, 37 P.3d at 548, the Hearing Board found that a suspension of one year and one day was warranted where, in three separate matters, the attorney neglected clients' matters, failed to communicate with the clients, failed to return one client's file, and did not update his information with the Office of Attorney Registration. As in the present case, Powell involved one instance of abandonment.

The ABA Standards and Colorado case law also support a period of suspension for one instance of abandonment coupled with one instance of knowingly disobedience of an obligation under the rules of a tribunal in violation of Colo. RPC 8.4(c). See Powell, 37 P.3d at 548 (suspending attorney for one year and one day for several rule violations including failing to update his home and business addresses with Attorney Registration); People v. - Johnson, - 35 P.3d 192 (Colo.O.P.D.J.1999)(suspending attorney for one year and one day for court-ordered child support).

Pursuant to ABA Standards 9.22 and 9.82 respectively, aggravating and mitigating factors are considered in arriving at the appropriate sanction. Because Roye did not participate in these proceedings, no mitigating factors were established. The People informed the Hearing Board, however, that Roye has had no prior disciplinary history, considered a mitigating factor pursuant to 9.32(a). See Carvell, 62 P.3d at 172 (considering an absence of a prior disciplinary ree-ord in mitigation in arriving at a one year and one day period of suspension). The Hearing Board also notes in mitigation that Roye was inexperienced in the practice of law, having been licensed for five years at the time of the events giving rise to this disciplinary proceeding. See id. at 9.832(F). In aggravation, Roye engaged in a pattern of misconduct, see ABA Standard 9.22(c). Given the mitigating and aggravating factors presented, a one year and one day suspension is warranted in this default proceeding.

IV. ORDER

It is therefore ORDERED:

1. JULIA MATILDA ROYE, attorney registration number 26240, is SUSPENDED from the practice of law for a period of one year and one day effective thirty-one (81) days from the date of this Order.

2. In the event Roye wishes to resume the practice law in the State of Colorado, she must undergo formal reinstatement proceedings pursuant to C. R.C.P. 251.29(c) and (d).

3. Roye is Ordered to pay the costs of these proceedings. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

EXHIBIT 1

SUPREME COURT, STATE OF COLORADO

ORIGINAL PROCEEDING IN DISCIPLINE

BEFORE THE PRESIDING DISCIPLINARY JUDGE

600 17th Street, Suite 510-South

Denver, Colorado 80202

Complainant:

THE PEOPLE OF THE STATE OF COLORADO,

Respondent:

JULIA MATILDA ROYE

FREDRICK J. KRAUS, # 0830507

Assistant Regulation Counsel

John S. Gleason, # 15011

Regulation Counsel

Attorneys for Complainant

600 17th Street, Suite 200-South

Denver, Colorado 80202

Telephone: (808) 898-8121 ext. 802

Fax No.: (803) 898-5802

Case Number:

O2PDJO81

COMPLAINT

THIS COMPLAINT is filed pursuant to the authority of C.RGC.P. 251.9 through 251.14, and it is alleged as follows:

Jurisdiction

1.The respondent has taken and sub-seribed the oath of admission, was admitted to the bar of this court on October 28, 1995, and is registered upon the official records of this court, registration no. 26240. She is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is not listed with the Colorado Supreme Court, Office of Attorney Registration. The last known business address is 4875 DTC Blvd., Unit 107, Denver, CO 80287. The respondent's registered home address is 4950 S. Yosemite, #158, Greenwood Village, Colorado 80111.

General Allegations

2. Respondent was hired by HBCCI. & Associates, Inc. (hereinafter "HBCCI") to bring suit against MCC Construction Corporation (hereinafter "MCC"). An attorney-client relationship was thus formed.

3. Respondent filed suit on behalf of HBCCI on November 15, 2000, in the District Court of Adams County, case no. O0CV2603.

4. the case was assigned to the Honorable Judge Chris Melonakis.

5. The defendant, MCC, retained counsel, filed an answer, a counter-claim and a third-party complaint.

6. The case was set for a trial on December 3, 2001.

7. A status conference was set for November 5, 2001, at 8:80 am. On November 5, 2001, at 8:80 a.m. The respondent knew of the status conference. The respondent failed to appear for the status conference.

8. The Judge's division called respondent at the telephone number listed in her pleadings and left two voice mail messages for the respondent to call Judge Melonakis.

9. The respondent received the telephone messages from the Judge's division. Despite receiving these telephone voice mail messages, the respondent failed to respond.

10. - On November 14, 2001, the court issued an order directed to the respondent to contact the division no later than November 20, 2001 and state why the case had not been prosecuted and when further action will be taken to resolve the case.

11. The order of November 14, 2001, was sent to the address listed in the respondent's pleadings. It was not returned to the court. It is presumed the respondent received the court order. The respondent did not respond or comply with the order.

12. Respondent's opposing counsel attempted to communicate by telephone with the respondent on numerous occasions. The respondent was well aware of the attempts to communicate with her, but nevertheless respondent did not return any telephone calls or communicate in any other manner with opposing counsel.

13. HBCCI appeared before the court on November 20, 2001, and requested that the matter be continued so that new counsel could be obtained.

14. The trial date of December 3, 2001, was vacated so that respondent's client could obtain new counsel.

15. On January 17, 2002, respondent's client retained new counsel.

16. Respondent's replacement counsel attempted to contact respondent to discuss the case, and to obtain the file of the client from respondent. Respondent was aware of the attempts to discuss the case and obtain the file.

17. Respondent did not respond to the request for the client's file and did not communicate with her client's new counsel.

18. The Office of Attorney Regulation Counsel made repeated attempts to contact respondent by telephone at her registered office and residence telephone numbers, by mail at her registered office and registered home addresses, by mail at addresses listed in pleadings, and e-mail at an e-mail address listed in correspondence during the investigation of this matter. Some mail was returned, some mail was not. Respondent did not respond by mail or telephone to the attempts to communicate with her.

CLAIM I

[A Lawyer Shall Act With Reasonable Diligence And Promptness In Represent ing A Client And Shall Not Neglect A Legal Matter Entrusted To That Lawyer-Colo. RPC 1.3]

19. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

20. Colo. RPC 1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client, and that a lawyer shall not neglect a legal matter entrusted to that lawyer.

21. The respondent failed to act with reasonable diligence and promptness and neglected the client's legal matter in each of the following respects:

a. by failing to prosecute the case entrusted to her to its conclusion;
b. by failing to participate in the drafting of a proposed case management order and trial management order;
c. by failing to engage in and complete discovery;
d. by failing to communicate with the court, her client, and opposing counsel and to participate in the status conference; and
e. by failing to communicate with the client's new counsel;

Each of these failures by the respondent constitutes a separate incident of lack of diligence and promptness, and neglect, as do all of them together.

22, The respondent knew or should have known that her lack of diligence and promptness, and neglect continued to occur over a period of months and involved a pattern and practice of lack of diligence and promptness, and neglect.

28, The respondent's lack of diligence and promptness, and neglect caused injury or potential injury to the client.

24, The respondent's pattern and practice of failing to accomplish her professional tasks for the client constitutes abandonment of the professional responsibilities owed to that client.

25. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 1.8.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM II

[A Lawyer Shall Keep A Client Reasonably Informed About The Status Of A Matter, And Explain A Matter To The Extent Reasonably Necessary To Permit The Client To Make Informed Decisions Regarding The Representation-Colo. RPC 1.4(a) and (b) ]

26. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

27. Colo. RPC 1.4(a) provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

28. The respondent failed to keep the client reasonably informed about the status of the legal matter and failed to comply promptly with reasonable requests for information in the following respects:

a. by failing to respond to her client's repeated telephone calls;
b. by failing to advise the client that there was a status conference on November 5, 2001, and the possible legal effects of failing to attend the conference;
c. by failing to advise the client of a November 14, 2001, order to file a written status report and the possible legal effects of her failing to do so;
d. by failing to advise the client that she was not going to appear for the status conference on November 5, 2001, or the November 14, 2001 hearing to report or to file a written status report and the possible legal effects of her failing to do so;
e. by failing to maintain minimum communications with the client from August, 2001, to the date the client was forced to retain new counsel; and
f. by failing to respond to the client's new counsel's reasonable request for information and the file.

Each of these failures to communicate adequately with the client constitutes a separate violation of Colo. RPC 1.4(a) as do all of them together.

29. The respondent knew or should have known that she had failed to communicate adequately with her client over a period of months.

30. The respondent's pattern and practice of failing to communicate with the client caused injury or potential injury to the client.

31. The respondent's failure to communicate on these matters constitutes abandonment of the professional responsibilities owed to the client.

32, Colo. RPC 1.4(b) provides that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

33. The respondent failed to explain to the client the matter in which the client was involved to the extent reasonably necessary to permit the client to make informed decisions in the following respects:

a. by failing to explain sufficiently the client's legal rights and obligations in participation of the status conference on November 5, 2001 proceedings, and explain the practical implications therein;
b. by failing to inform the client fully and promptly of material developments in the matter to permit the client to make informed decisions regarding the representation; and
c. by failing to respond to new counsel's request for information and explain the matter to new counsel.

Each of these failures to explain constitutes a separate violation of Colo. RPC 1.4(b) as do all of them together.

34. The respondent knew or should have known that she failed to adequately explain the legal matter to the client over a period of months.

35. The respondent's pattern and practice of failing to explain these legal matters to the client caused potential injury to the client.

36. The respondent's failure to adequately explain the client matter constitutes abandonment of the professional responsibilities owed to the client.

37. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and violates Colo. RPC 1.4(a) and (b).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM III

[A Lawyer Shall Not Knowingly Disobey An Obligation Under The Rules Of A Tribunal-Colo. RPC 3.4(c) ]

38. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

39. Colo, RPC 8.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal.

40. The respondent was aware of the court order to appear for a status conference. The respondent knowingly disobeyed a court order to appear for a status conference on November 5, 2001.

41. The respondent was aware of a subsequent order of court to inform the court as to the status of the case in writing or in person. The respondent knowingly disobeyed a court order by not responding, in writing or in person, to an order dated November 14, 2001, to inform the court as to the status of the case by November 20, 2001.

42. No exception exists under Colo. RPC 3.4(c) for the respondent's knowing failure to comply with the court order for a conference on November 5, 2001, and the court order dated November 14, 2001.

43. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and also violates Colo. RPC 3.4(c).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM IV

[A Lawyer Shall Not Engage In Conduct That Is Prejudicial To The Administration Of Justice-Colo. RPC 8.4(d) 1

44. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

45, - Colo. RPC 8.4(d) provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

46. The respondent directly delayed and altered the course of court proceedings by failing to participate in a case management order, a trial management order, discovery, and two status conferences and thereby caused prejudice to the administration of justice.

47. By failing to respond to court orders for a status report on two occasions which directly led to the court resetting the trial of the case, the respondent acted in contravention of the court's authority.

48. Such failure to attend interfered with the ebb and flow of the procedures and the function of the court.

49. The foregoing conduct of the respondent establishes grounds for discipline as provided in C.R.C.P. 251.5, and violates Colo. RPC 8.4(d).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM V

[Upon Termination, A Lawyer Shall Take Steps to Protect a Client's Interest And Surrender Papers And Property to the Client-Colo. RPC 1.16(d) ]

50. Paragraphs 1 through 18 are incorporated herein as if fully set forth.

51. The respondent effectively terminated the attorney-client relationship and also when she failed to communicate with her client despite the client's numerous attempts to communicate with her, by not appearing at the hearing on November 20, 2001,

52. On January 17, 2002, new counsel filed an entry of appearance for HBCCI in the suit.

58. The attorney who replaced respondent made requests for the client's file from respondent.

54. Respondent failed to return the client's files and papers despite demands and requests to do so.

55. Colo. RPC 1.16(d) requires that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest in surrendering papers and property to which the client is entitled.

56. The respondent knew or should have known that she was failing to protect the client's interest by not communicating with the client or new counsel and by not returning the client's file.

57. The foregoing conduct of respondent in failing to take steps reasonably necessary to protect the client's interest and returning papers and property of the client establishes grounds for discipline as provided for in C.R.C.P. 251.5 and also violates Colo. RPC 1.16(d).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM VI

[An Attorney Shall Respond To A Request By The Regulation Counsel For Information Necessary To Carry Out The Performance Of Regulation Counsel's Duty-C.R.C.P. 251.5(d); A Lawyer Shall Not Knowingly Fail to Respond Reasonably To A Lawful Demand for Information From A Disciplinary Authority Colo. RPC 8.1(b) ]

58. Paragraphs 1 through 18 are incorporated herein.

59. - C.R.C.P. 251.5(d) requires that an attorney respond to a request by the Attorney Regulation Counsel for information to carry out the performance of its duties.

60. The respondent failed to respond to repeated attempts by the Office of Attorney Regulation Counsel to information from the respondent.

61. The respondent knew or should have known that she was failing to cooperate and respond to the request by Attorney Regulation Counsel.

62. The foregoing conduct of the respondent in failing to respond to requests of Attorney Regulation Counsel establishes grounds for discipline as provided in C.R.C.P. 251.5.

63. Colo. RPC 8.1(b) provides that a lawyer in connection with a disciplinary matter shall not knowingly fail to respond reasonably to a lawful demand for information from a disciplinary authority, except if the information is protected by Colo. RPC 1.6 or there is a good faith challenge to the demand.

64. The respondent knowingly violated the rule by failing to respond to the demands for information made by Attorney Regulation Counsel during the investigation of the subject matter of this disciplinary proceeding.

65. The information sought did not require disclosure of information otherwise protected by Colo. RPC 1.6.

66. The respondent made no good faith challenge to the demand by Attorney Regulation Counsel for such information.

67. The foregoing conduct of the respondent in failing to respond to requests of regulation counsel establishes grounds for discipline as provided in C.R.C.P. 251.5, and violates Colo. RPC 8.1(b).

WHEREFORE, the people pray that the respondent be found to have engaged in misconduct under C.R.C.P. 251.5 and the Colorado Rules of Professional Conduct as specified above; that the respondent be appropriately disciplined for such misconduct; and that the respondent be assessed the costs of this proceeding. DATED this 2002. day of September,

Respectfully submitted,

FREDRICK J. KRAUS, #080507 Assistant Regulation Counsel

John S. Gleason, # 15011

Regulation Counsel

Attorneys for Complainant

      . All mailings sent to Roye at her last known business address have been returned unclaimed.


source: Caselaw Access Project

author: ADAMS, Judge: CAROL M. HANSEN,

license: Public Domain

text:
    2003 OK CIV APP 25
    Mark and Michelle USREY, Plaintiffs/Appellees, v. Daniel R. WILSON, Jr., Defendant/Appellant.
    No. 97,103.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Nov. 1, 2002.
    Rehearing Denied Dec. 20, 2003.
    Certiorari Dismissed Feb. 24, 2003.

      Marion M. Dyer, Broken Arrow, OK, for Plaintiffs/Appellees.
    C. Rabon Martin, Martin & Associates, P.C., Tulsa, OK, for Defendant/Appellant.
   OPINION

ADAMS, Judge:

T1 Plaintiffs Mark and Michelle Usrey hired Defendant Wilson to build a retaining wall,. After the wall was finished, a section of it collapsed. They filed this action against Wilson for damages, plus costs and attorney fees. The jury returned a unanimous verdict in favor of Wilson. As prevailing party, Wilson filed a motion to tax costs, including an attorney fee. The trial court denied his motion, and he appeals.

T2 Despite an argument by the Us-reys to the contrary, the trial court concluded Wilson had a statutory right to an attorney fee award as the prevailing party in an action governed by 12 0.8.2001 § 936. The Usreys do not challenge that conclusion in this appeal, and we can identify no error in the trial court's decision that § 986 applied to this case.

T3 At the hearing on Wilson's motion, his attorney testified about the time he spent on the case and his normal hourly rate but produced no other documentation of that time. The trial court concluded Wilson had presented sufficient evidence of the reasonableness of the fees requested, but concluded he did not present "detailed time records" to support his request and thus had not shown the amount of attorney fee to which he was entitled.

{ 4 The trial court based this conclusion on Oliver's Sports Center, Inc. v. National Standard Insurance Company, 1980 OK 120, ¶ 8, 615 P.2d 291, 294, which stated:

In Burk, this Court established that after the date of promulgation, January 24, 1979, attorneys would be required to present detailed time records to the court and to offer evidence of the reasonable value for the services performed, predicated on the standards within the local legal community.

In so stating, Oliver's was referencing the following statement in State, ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶20, 598 P.2d 659, 663:

Hereafter, attorneys in this state should be required to present to the trial court detailed time records showing the work performed and offer evidence as to the reasonable value for the services performed for different types of legal work. Reasonable value of services should be predicated on the standards within the local legal community.

T5 On appeal, Wilson argues the trial court improperly interpreted Burk as requiring contemporaneous records or at least written documentation of the time spent on the case. - He argues his testimony was sufficient under Burk to satisfy his burden of presenting sufficient evidence upon which to base a reasonable attorney fee award.

16 Although it is not clear that the trial court interpreted Burk as requiring contemporaneous time records or at least written documentation of time spent on the case, we do agree with Wilson that nothing in Burk or Oliver's prevents an attorney fee award based on a reconstruction of the time spent on a case based upon other records which verify the activity in the case, such as the court file or the attorney's copies of letters, pleadings, or file memoranda.

T7 However, Wilson was "obligated to provide the trial court with the data necessary to document the work performed." Payne v. Dewitt, 1999 OK 93, ¶18, 995 P.2d 1088, 1096. Because the trial court concluded Wilson had not fulfilled that obligation, it recognized Wilson's right to an attorney fee award but awarded nothing because Wilson's evidence was insufficient. Our task on appeal is to determine whether that decision by the trial court, which was essentially one concerning the amount of the attorney fee award, was an abuse of discretion. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091.

T8 As to his time spent outside of trial, Wilson's attorney offered only general estimates of the amount of time spent and made no attempt to demonstrate the date of services or even the specific nature of services performed. If Burk's requirement of detail is to mean anything, we must conclude that such vague testimony is insufficient to satisfy that requirement. The trial court would have abused its discretion if it had awarded attorney fees based on such evidence.

T9 However, we cannot conclude that Wilson's evidence concerning the twelve hours spent in trial was similarly insufficient. Counsel for the Usreys conceded the trial took that much time, and that he was "not arguing with that." Accordingly, Wilson established entitlement to attorney fees for the twelve hours during which his attorney was engaged in the trial of this case.

110 The Usreys argue that Wilson failed to establish his hourly rate was reasonable in the community, and therefore the trial court's order was appropriate. However, Wilson's attorney testified that he charged $250 per hour for trial time and that his fee request was "fair." The trial court specifically found that Wilson had satisfied his obligation to show the "reasonable value for the services performed." That finding is not clearly against the weight of the evidence.

111 On the undisputed evidence, Wilson was entitled to an attorney fee award of $3,000 for the time spent in trial. The trial court abused its discretion in not making that award. The trial court's order is modified to award Wilson attorney fees of $8,000 to be included as costs, and as modified, the trial court's order is affirmed. Wilson's request for appellate attorney fees, which was mentioned only in the last sentence of his Brief in Chief and was not separately identified as required by 12 0.8.2001 § 696.4(C), will not be considered.

AFFIRMED AS MODIFIED.

HANSEN, P.J., dissents with opinion; and MITCHELL, J., concurs.

CAROL M. HANSEN,

Presiding Judge, dissenting.

T1 Title 12 0.8.1991 §§ 936 and 940 provide that in actions involving contracts for the sale of goods and services and in suits involving negligent injury to property, the prevailing party shall be entitled to a reasonable attorney fee to be taxed as a cost of the action. Under these Oklahoma statutes, an award of attorneys fees to a prevailing party in civil action to recover on contract relating to labor or services is mandatory, but determination of reasonableness and amount of award is generally left to sound discretion of district court. Gamble, Simmons & Co. v. Kerr McGee Corporation, 175 F.3d 762, 773, (10th Cir.1999). To deny any attorney fees to the prevailing party under these statutes is contrary to law.

T2 Wilson asked for attorney fees based on $200.00 per hour for out-of-court work and $250.00 per hour for in-court work. Plaintiffs did not challenge Wilson's hourly rate or argue it was unreasonable. However, Wilson did not present written documentation of the time spent to the court. It was on this basis the trial court denied his request.

1 3 The Oklahoma Supreme Court in State ex rel. Burk v. Oklahoma City, 1979 OK 115, 598 P.2d 659, held, that in the future, attorneys should be required to present to the trial court detailed time records showing the work performed and offer evidence as to the reasonable value for the services performed. In Burk, the transcript indicated the attorneys for the appellees did not keep time records of their work as the litigation progressed, but rather they reconstructed the number of hours spent in various legal endeavors.

T4 In our view, nothing in Burk or its progeny allows a trial court to deny any attorney fee to a prevailing party for lack of contemporaneous record keeping.

T5 Rabon Martin, attorney for Wilson, presented testimony at the hearing on attorney fees. He testified he has been an attorney for 82 years handling primarily criminal defense work for which he charges a flat fee. About 385 percent of his practice is personal injury, workers' compensation, and medical malpractice for which he charges on a contingent fee basis. None of these representations requires keeping track of hours expended. In the balance of his practice, he charges $200.00 per hour for out-of-court work and $250.00 per hour for in-court time. He stated he was not asking for an award of an incentive bonus increase, just his time spent.

T6 Mr. Martin testified as to his best and good faith reconstruction of time spent, but did not submit any documentation. He claimed $4,000.00 for trial time and $2,000.00 for pre-trial work. He did request the trial court allow him to offer a more detailed reconstruction of time spent and present it to the trial court. He also pointed out the trial court was aware of the 12 to 16 hours of trial time he spent in the courtroom.

T7 Under § 986 and § 940, Wilson is allowed attorney fees as a matter of law. The amount to be awarded is discretionary with the trial court based on the standards set out in Burk. Mr. Martin must present evidence of hours spent on the case, which he may do through reconstructed time records.

8 The majority picks an arbitrary amount to be awarded Wilson for Mr. Martin's trial time without giving the trial court the chanee to exercise its statutory discretion after reviewing Mr. Martin's records. In my view, Mr. Martin should be given an opportunity to reconstruct his time records and present them to the trial court, including both trial and pre-trial work. Based on these submitted records, the trial court would then exercise its discretion to determine the amount of attorney fees it would award.

      . The Usreys' action was based on Wilson's alleged failure to perform in a workman-like manner under a contract which involved not only the building of the wall but the sale of the stones used in the construction. Accordingly, the action was "related" to a contract for the sale of goods and covered by § 936. See Hardesty v. Andro Corporation Webster Division, 1976 OK 129, 555 P.2d 1030.

      . Although he did not formally request a continuance, Wilson's counsel did offer to "submit a more detailed reconstruction." The trial court never responded to this offer. Wilson does not argue on appeal that the trial court should have allowed him more time to prepare that "more detailed reconstruction."

      . However, we hasten to add that the spirit of Burk suggests that counsel in cases where attorney fees are allowed as part of costs, whether in the discretion of the trial court or as a matter of right to the prevailing party, would be well-advised to keep contemporaneous time records for use in presenting an application for attorney fees.


author: Justice MARTINEZ . Justice BENDER,

text:
    Lisa M. SPENCER, Plaintiff, v. Douglas W. SYTSMA and Ralph Kuiper, Defendants.
    No. 02SA342.
    Supreme Court of Colorado, En Banc.
    April 7, 2003.
    Rehearing Denied April 28, 2003.

    Fogel, Keating, Wagner, Polidori, Shatner, Struthers & Heron P.C., Alan C. Shafner, Kristin D. Sanko, Denver, Colorado, Attorneys for Plaintiff.
    George D. Browning & Associates, Matthew J. Hogsett, Westminster, Colorado, Attorneys for Defendant Ralph Kuiper.
    No Appearance on or Behalf of Defendant Douglas Sytsma.

       Chief Justice MULLARKEY, Justice KOURLIS, and Justice BENDER would grant the petition.

   Justice MARTINEZ

delivered the Opinion of the Court.

We issued a rule to show cause to determine whether claims against two defendants, involved in two separate accidents, can be joined when venue would be improper for one without joinder. We hold that where defendants did not act in concert, venue requirements must be satisfied for each.

I. Facts and Procedure

Lisa Spencer brought this suit to recover damages for injuries that she allegedly suffered as a result of two separate car accidents, each of which occurred in Colorado Springs. In the first accident, Douglas Syts-ma, a resident of Denver County, made a U-turn in front of Respondent's car allegedly causing her to collide with him. In the see-ond accident, Ralph Kuiper, a resident of El Paso County, allegedly rear-ended Spencer's car, pushing it into the rear of another vehicle stopped for traffic.

Spencer claimed she suffered virtually identical injuries in the two accidents, including severe headaches and a dise protrusion which resulted in spinal surgery. Spencer filed a complaint against both defendants in Denver County, alleging that each defendant was negligent in the operation of his vehicle, that such negligence caused her injuries, and that as a result of both accidents she suffered mental and emotional pain and suffering, permanent injuries, permanent disabilities, a loss of wages, a loss of earning capacity, and a loss of enjoyment of life.

In response to Spencer's complaint, Kuiper filed a Motion for Change of Venue and Severance of Claims. Kuiper argued that because he is a resident of El Paso County, and the accident occurred there, venue is only proper for him in El Paso County. Further, Kuiper alleged that the claims should be severed as they arose from two entirely separate accidents. Sytsma joined in Kui-per's request for a motion for change of venue, but objected to severance of the claims.

The trial court denied the Motion for Change of Venue and Severance of Claims. The trial court reasoned that because the right to relief asserted against both defendants arises out of the same injury, permissive joinder was proper. Furthermore, the court stated that the claims should not be severed because one finder of fact could better apportion damages than two sitting separately.

Kuiper petitioned this court and we issued a rule to show cause why the trial court should not grant a change of venue. We now make that rule absolute.

IIL Analysis

This case presents us with the question of whether we should give primacy to rules of venue or rules of joinder, when deciding where a plaintiff may bring a claim. If we consider venue first, joinder may not be appropriate in cases where it would be otherwise. On the other hand, if we determine joinder first, then venue requirements may not be satisfied for all defendants, even unrelated ones. Thus, our rules seem dissonant in a case such as this one, where plaintiff seeks to file claims against two defendants in a county where venue is not appropriate for each defendant. "The Rules of Civil Procedure should be liberally construed, and, when required, the supreme court has a duty to harmonize the Rules of Civil Procedure which appear dissonant under certain cireumstances." Denver Air Center v. Dist. Court, 889 P.2d 1182, 1185 (Colo.1992). As there is no clear answer to this question, we must turn to the reasoning underlying these rules to determine how best to harmonize them to achieve a fair and just result.

In the following analysis, we examine the plain language of, and the rationale behind, both the rules of venue and joinder. We then apply these rules to the facts at issue to determine that while Spencer may properly join the defendants, she must also satisfy venue requirements for each.

A. Rules on Venue and Joinder

"The purpose of venue requirements is to impose a territorial limitation on the forum in which an action may be commenced." Denver Air Center, 839 P.2d at 1184. Venue requirements are imposed for the convenience of the parties, and are a procedural, not a substantive issue. 77 Am. Jur.2d Venue § 1 (2002). Colorado Rule of Civil Procedure 98, Place of Trial, outlines where venue is proper for various actions. For tort actions, Rule 98 states that "an action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action," or it "may also be tried in the county where the tort was committed." C.R.C.P. 98(c)(1) and (5). Thus, were we looking only at venue, Rule 98 would mandate that trial be held against Kuiper in El Paso County because he lives in El Paso County and that is where the accident occurred. For Sytsma, however, venue would be proper in either Denver or El Paso Counties because Sytsma resides in Denver County and the accident with Spencer occurred in El Paso County. However, venue may also be in the county where "any" of the defendants reside. Thus, whether venue is proper for Kuiper in Denver County depends on whether we look at venue before or after we determine whether parties may be joined.

Our permissive joinder rule allows for a plaintiff to join defendants in an action, "if there is asserted against [the defendants] jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action" C.R.C.P. 20(3). Joinder is encouraged for purposes of judicial economy; "[plroper apportionment can be more justly accomplished by one jury than by two juries sitting separately, each faced with the argument that the greater portion of the injury was caused by the defendants other than the ones in the case at trial." Sutterfleld v. Dist. Court, 165 Colo. 225, 230, 438 P.2d 236, 240 (1968). Thus, the courts are to give the permissive joinder rule its broadest possible reading. Id. Permissive joinder, however, is still discretionary with the trial court. Draper v. School Dist. No. 1, 175 Colo. 216, 218, 486 P.2d 1048, 1049 (1971).

Spencer filed her complaint against both defendants in Denver county, arguing that the right to relief against both defendants arose out the same occurrence-her single permanent injury. An injury caused by more than one event is a "single occurrence" for purposes of joinder under C.R.C.P. 20(a). Sutterfield, 438 P.2d at 239. Absent other considerations, the trial court's denial of Kui-per's motion to sever would be appropriate in this case: it would allow for a more expedient and efficient resolution of the case, as a single jury will be able to more effectively apportion damages between the two defendants than two juries sitting separately. This outcome would benefit both the plaintiff and the defendants because the damages will be considered together, avoiding the possible results of double recovery, or conversely, no recovery at all. However, whether the defendants may be joined also depends on whether venue must be proper for each defendant.

While joinder will increase the efficiency of the resolution of causes of action, our rules also provide for venue to be placed in a location that is convenient for the defendant. This consideration holds no less weight merely because a defendant is joined with another who lives in a different county. Thus, we must weigh these rules in deciding whether the court must honor the venue requirements for each defendant.

B. Reconciling Venue and Joinder

1. Other States

Some states have held that venue requirements must be addressed before joinder. The Missouri Supreme Court addressed this issue in a case with facts almost identical to those involved here. State ex rel. Jinkerson v. Koehr, 826 S.W.2d 346 (Mo.1992). The plaintiffs in that case were also involved in two separate car accidents. Id. at 846. The first accident occurred in St. Louis County with defendant Jinkerson. Both plaintiffs and Jinkerson were residents of St. Louis County. Id. The second accident occurred in the City of St. Louis with defendant Matthews, a resident of St. Louis County. Id. Plaintiffs brought suit against Matthews in the Circuit Court of the City of St. Louis and then joined Jinkerson in that action. Id. Jinkerson objected to the joinder and filed a motion to dismiss for lack of proper venue, among other things. Id. at 347.

The Missouri Supreme Court first decided that joint Hability was not appropriate. Id. at 348. Additionally, the court held that Jinkerson was not liable under the theory that a person who negligently causes an accident is lable for all foresecable damages caused by that accident. Id. As there was no joint liability, the court held that the plaintiffs should not be allowed to join the two actions. Id. Furthermore, the court stated, "[slimply joining the two separate causes of action in a single petition does not create venue over both actions." Id.

In deciding Jinkerson, the court relied in large part upon State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo.1979). In that case, the court rejected the contention that "by joining two or more separate causes of action in a single petition ..., venue as to all is created in any county wherein any one of the several defendants resides even though there would not have been venue as to one (or more) of the counts if filed separately in that county." Id. at 291-92. The court explained that decision by citing to its Rule Civ. Proc. 52.05(a), which states that the Rules of Civil Procedure "shall not be construed to extend or limit the jurisdiction of the Courts of Missouri or the venue of civil actions therein." Id. at 292. Having so decided, the court did not even reach the question of whether joinder was permissible. Id.

The Georgia court of appeals reached a similar conclusion in Thomas v. Bobby Stevens Hauling Contractors, Inc., 165 Ga.App. 710, 302 S.E.2d 585, 587 (1983). There, the court distinguished between cases where the joined claims are independent of one another, and cases where the claims are connected to the main action, to determine whether venue requirements must be met. Id. at 587. "If the claim asserted against co-defendants or third parties is essentially independent rather than one ancillary to the main action, it must satisfy within itself the Constitutional venue requirements." Id. The court stated that a suit in tort against a common carrier was not ancillary to a suit in contract against the carrier's insurance company. Id. Thus, the court refused to allow joinder of the common carrier and the insurance company where venue was not satisfied for both. Id.

To the contrary, other states have held that issues of proper venue are contingent on whether there is proper joinder. Apache County v. Superior Court, 163 Ariz. 54, 785 P.2d 1242, 1243 (App.1989); Fred's Finance Co. v. Fred's of Dyersburg, Inc., 741 S.W.2d 903, 908 (Tenn.Ct.App.1987). These courts have focused on joinder, reasoning that if joinder is proper, then venue is proper for joined defendants regardless of whether it would have been if they had not been joined. "Therefore, if the joinder is proper, venue is proper.... Conversely, if joinder is improper, the motion for change of venue should have been granted." Apache County, 785 P.2d at 1243. Thus, venue is considered for each defendant only if joinder is not acceptable.

2. Federal Law

In general, the federal courts have held that venue requirements must be satisfied for each separate cause of action. Fed. R.Civ.P. 82 ('These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein." (emphasis added)); Beattie v. United States, 756 F.2d 91, 100 (D.C.Cir.1984), overruled on other grounds by Smith v. United States, 507 U.S. 197, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1998); see also Lamar v. American Basketball Ass'n, 468 F.Supp. 1198, 1205 (S.D.N.Y.1979).

However, recognizing the importance of Judicial economy, fairness to the parties, and the avoidance of piecemeal litigation, the federal courts have crafted a distinction between multiple claims constituting one cause of action, and those that are factually distinct enough to support a separate cause of action. See generally 17 James Wm. Moore et al., Moore's Federal Practice § 110.05 (@Bd ed.2002). This distinction allows for factually interrelated claims to be considered as a single cause of action with multiple grounds for relief; as long as venue is proper for one ground, venue is satisfied for the entire claim. Beattie, 756 F.2d at 100; Nine Point Meso of Nashville, Inc. v. Nine Point Mesa of Lexington, Inc., 769 F.Supp. 259, 263 (M.D.Tenn.1991) (where separate claims merely allow for separate grounds for relief, but constitute same cause of action, proper venue as to one will satisfy venue requirement for entire action); General Foods Corp. v. Carnation Co., 411 F.2d 528, 532 (7th Cir.1969) (where multiple claims all involved the same patent, they could be considered as one action and, as such, proper venue for one claim satisfied venue requirements as to all other claims).

Other federal courts have reached the same result using a theory of "pendant venue," analogous to the pendant jurisdiction doctrine. See, e.g., Solow Bldg. Co. v. ATC Assocs. Inc., 175 F.Supp.2d 465, 469-70 (S.D.N.Y.2001); Travis v. Anthes Imperial Ltd., 473 F.2d 515, 528-29 (8th Cir.1973). Under this theory, factually related state or federal claims can be brought under the venue of the main claim in the action. Thus, venue must only be satisfied for the original cause of action.

The federal courts' adoption of these approaches, which prioritize joinder over venue in cases where the claims are tied together in the same action, illustrates the importance of joinder for factually interrelated claims. This concession is particularly telling in the federal context where the potential inconvenience of joinder to the parties may be much greater than for state claims. On the other hand, their approach recognizes that when claims are not closely tied, venue must be satisfied for all claims. See Sadighi v. Daghighfekr, 36 F.Supp.2d 267, 277 (D.S.C.1999).

3. Colorado

Having considered the reasoning of other courts, we turn to our own analysis. We have not squarely addressed the interplay between venue and joinder. Nonetheless, the parties both argue that one of our cases resolves the issue, although of course they point to different cases with different outcomes.

Spencer claims that Sutterfield v. District Court definitively states that claims such as hers can be joined. In that case, the plaintiff Sutterfield sued four defendants for similar injuries sustained in two separate car accidents. Sufterfield v. Dist. Court, 165 Colo. 225, 227, 438 P.2d 236, 238 (1968). The two defendants in the second accident filed a motion for change of venue and a motion to sever. Id. The court granted the motion to sever, but did not act on the motion for change of venue. Id. at 238. Consequently, we analyzed the case by asking whether join-der was proper in that case. Id. at 289. We decided that a single injury can be the common "occurrence" for purposes of joinder under Rule 20. Id. Thus, we held that join-der was proper. Id. at 240. While we recognized that such joinder is discretionary with the trial court, we noted that the court had made no findings that would have supported a decision allowing severance. Id. Thus, while we allowed joinder in that case, we never addressed whether venue requirements had to be met as well.

Kuiper, on the other hand, argues that Millet v. District Court should control our decision. Millet v. Dist. Court, 951 P.2d 476 (Colo.1998). In that case, plaintiff filed a complaint against three defendants, including Millet, alleging injuries and seeking damages arising out of three different car accidents. Id. Millet filed a motion for severance and change of venue. Id. at 477. The trial court concluded that Rule 98 did not allow venue over Millet in that action, but that the plaintiff was entitled to present all of her damage claims to one fact-finder. Id. Thus, the court ordered a change of venue to determine liability, but retained venue for determination of the damages. Id. We held, summarily, that "ll a change of venue is required by law because the suit was originally brought in an improper county, the trial court has no jurisdiction over the case except to grant the change of venue." Id. However, we never discussed whether the district court was correct in deciding that venue was not appropriate.

In sum, neither of these cases arrives at the issue in this case: must venue be satisfied as to each defendant when plaintiff files claims against multiple defendants? Sutter-addresses joinder independently of venue, and Millet decides only that a court's Jurisdiction is limited to granting a change of venue when venue is improper. Thus, we must look beyond these cases to resolve the issue presented in this case.

More generally, some of our cases show that we have leaned toward a broad interpretation of joinder. We have generally focused on the language of Rule 98, which allows suit to be brought in a county where any of the defendants reside. City of Cripple Creek v. Johns, 177 Colo. 443, 494 P.2d 823 (1972). In Cripple Creek, the plaintiff brought suit in Denver County because some of the defendants were residents of that county. Id. at 825. The defendants sought a change of venue arguing that the claim should be brought in Teller County since a majority of the defendants were residents of Teller County. Id. We agreed with the district court's denial of the motion for change of venue. Id. Our decision, however, was based in part on the fact that two of the defendants had already filed answers and counterclaims in the Denver County court. Id. We stated: The defendants "have filed answers and counterclaims in the civil action. This being so, the Motion for Change of Venue was properly denied." Id. As venue is a waivable privilege, by filing answers and counterclaims in the Denver court, the defendants effectively waived their rights for a change of venue. C.R.C.P. 98(e);, Slinkard v. Jordan, 131 Colo. 144, 149, 279 P.2d 1054, 1056 (1955). As such, our decision in Cripple Creek is not dispositive of the issue before us today.

Furthermore, we have expressed our reluctance to change venue for properly joined claims which arise out of the same set of cireumstances. Twin Lakes Reservoir and Canal Co. v. Bond, 156 Colo. 433, 399 P.2d 793 (1965). In Twin Lakes, the plaintiff made two claims: First, he sought to quiet title to a property, arguing that it was not subject to a deed of trust issued by Twin Lakes; Second, he sought damages against Twin Lakes, the Bank to which Twin Lakes had issued the deed, and the Insurance Company that held the deed of trust, contending that Twin Lakes had breached its agreement to obtain a release of the deed. Id. at 794. Twin Lakes argued that its motion to change venue for the second claim was erroneously denied. Id. at 795. We held that venue was proper in the county in which the property at issue was located. Id. As the second claim "arose out of the same set of circumstances which gave rise to the first," venue was proper for both. Id. (emphasis added). Thus, we stated: "Under such conditions, where the venue of one claim for relief is proper in the county in which it is brought, a court should not, except under extraordinary circumstances, change the venue of another claim properly joined with the first claim." Id. (emphasis added).

More recently, however, we have stated that venue requirements cannot be ignored altogether merely because claims are joined. Denver Air Center v. Dist. Court, 839 P.2d 1182, 1185 (Colo.1992). In Denver Air Center, we held that where the joined defendants include both Colorado residents and residents of another state, venue must at least be satisfied for the resident defendant. Id.

In short, our cases illustrate our recognition of the importance of both joinder and venue, and our conflict in resolving the two policies. Consequently, we must harmonize those cases to achieve a fair result.

We agree with the federal courts that generally, it makes more sense to decide questions of joinder first. Joinder of claims increases judicial efficiency and allows for all parties to resolve their disputes in one sitting. However, these considerations do not always outweigh the justifications for proper venue. Where the defendants in an action did not act in concert, or engage in the same tortious act, there is no reason why venue should not have to be satisfied as to both defendants. While Colorado does not have a rule explicitly forbidding an interpretation which would allow a Rule of Civil Procedure to expand venue, the considerations behind the venue requirements should not be ignored as a result. Compare C.R.C.P. 82, ("These rules shall not be construed to extend or limit the jurisdiction of any court.") with Fed.R.Civ.P. 82 ("'These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein." (emphasis added)).

Venue requirements are imposed in order to insure that a trial is fair and convenient for the parties. These considerations are of no less importance for each defendant merely because he has been joined with another unrelated defendant. In contrast to a situation where the defendants acted together, an unrelated defendant may have no connection to the county where venue is appropriate for the other defendant. Trial for the unrelated defendant in such a county could be extremely inconvenient and difficult. Thus, we hold that venue requirements must be satisfied for each defendant when the common occurrence joining the acts was not the defendants' actions together, but was instead merely a result of separate incidents. This distinction allows for a consistent reading of our rules of civil procedure and it agrees with basic notions of fairness and common sense.

In this case, the defendants' cases are not so closely tied so as to support the notion of venue for one, venue for all. Their actions are connected only by the plaintiff's common injury, allegedly caused by their separate accidents. As such, we refuse to defer to plaintiff's choice of venue to the extent that we eviscerate one of the defendant's venue rights. In sum, as defendants did not act in concert, plaintiff must satisfy venue requirements for each defendant.

III. Conclusion

In order to harmonize these rules, which conflict in this case, we hold that venue requirements must be satisfied for all defendants where the defendants did not act in concert or engage in the same tortious act. As such, the trial court erred in denying Kuiper's request for a change of venue. We therefore make the rule to show cause absolute.

. Justice BENDER,

dissenting:

Because no conflict exists between our statutory civil procedure rules of permissive joinder and venue, I respectfully dissent. The plain language of the permissive joinder and venue rules-consistent with their federal law counterparts-grant the trial court broad discretion to use both rules in tandem to choose between different locations to try multiple defendants in one action. Such a flexible interplay between these procedural rules comports with basic notions of efficiency, fairness, and common sense.

By characterizing venue as a "Jjurisdictional requirement," the majority unnecessarily diminishes the permissive joinder rule and thereby reduces the trial court's capability to act efficiently. Neither the language of the civil procedure rules themselves nor our caselaw interpreting those rules supports the majority's holding that venue is inappropriate because the defendants "did not act in concert or engage in the same tortious act." Maj. op. at 7.

Thus, contrary to the majority, I would hold that both permissive joinder and venue requirements do not conflict and are satisfied for all defendants in this case. Accordingly, I would affirm the trial court's order denying the defendants' motion to change venue and discharge the rule to show cause because the trial court did not abuse its discretion when it denied the defendant's motion for a change in venue.

I. Colorado's Statutory Permissive Joinder and Venue Requirements

Before turning to a discussion of how the rules work in tandem, I turn to the language and rationale of both rules.

The permissive joinder rule, found in C.R.C.P. 20(a), provides that a court may join multiple defendants in one action if two requirements are met: (1) there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (2) there is any question of law or fact common to all defendants that will arise in the action. Historically, common law prevented parties from resolving lawsuits in one economical and efficient proceeding. See 1B Cathy S. Krendl, Colorado Methods of Practice § 30.4 (4th ed.1997). Rule 20(a) departs from this inflexible approach by favoring the efficient joinder of parties so as to economize searce judicial resources. Id.; see also Charles A. Wright, Arthur R. Miller and Mary K. Kane, 7 Federal Practice and Procedure §§ 1651-1660 (8d ed.2001)(discussing the federal permissive joinder rule Fed. R.Civ.P. 20(a)) . The flexibility of the rule encourages judicial efficiency by permitting courts to hear all reasonably related claims against different defendants in a single proceeding. |

The application of Rule 20(a) is straightforward. It vests the trial court with discretion to order permissive joinder of defendants provided the plaintiff asserts claims that satisfy the rule's two-pronged requirement. Draper v. Sch. Dist. No. 1, 175 Colo. 216, 218, 486 P.2d 1048, 1049 (1971). For instance, we have held that a plaintiff was permitted to join two defendant motorists who allegedly injured her in two car accidents that occurred nine months apart. See Sutterfield v. Dist. Court, 165 Colo. 225, 230-31, 438 P.2d 236, 240 (1968).

In Sutterfield, we held that the trial court properly ordered permissive joinder under the rule's two-pronged requirement. First, the "same occurrence" was deemed to be the plaintiff's single back injury that was caused by the two separate car accidents. Id. at 230, 438 P.2d at 239. Second, the common question of fact was the injury and the extent to which each defendant might be held liable. Id. By so holding, we gave the permissive joinder rule its broadest possible reading. Id. at 231, 438 P.2d at 240.

This broad and liberal construction of permissive joinder is consistent with federal decisions interpreting the federal counterpart to Rule 20(a). Federal courts permit an injured plaintiff to join both the original tort-feasor and a second tortfeasor whose subsequent negligence aggravated plaintiff's original injuries under Fed.R.Civ.P. 20(a). Poster v. Central Gulf S.S. Corp., 25 F.R.D. 18, 20 (E.D.Pa.1960); see also Wright, Miller, Kane, Federal Practice and Procedure § 1653.

Although Colorado's Rule 20(a), like its federal counterpart, should be construed broadly and liberally, other rules of civil procedure must also be satisfied for the action to proceed. One such rule is C.R.C.P. 98, our venue rule. Like permissive joinder, Rule 98 is a procedural rule that vests the trial court with broad discretion in choosing venue provided that venue lies within each possible county. Venue is a permissive, procedural requirement unlike jurisdiction, which is a mandatory, substantive requirement. T7 Am.Jur.2d Venue § 1 (2002). Although venue and jurisdiction are closely related, they are not synonymous and should not be confused. Id.; Krendl, Colorado Methods of Practice § 24.18.

Jurisdiction is the power and authority of the court to act. Unquestionably, a district court must have subject-matter jurisdiction over the cause of action. See Colo. Const. art. VI, § 9 ("The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases ....") In addition to subject-matter jurisdiction, the court must be able to assert personal jurisdiction over the defendants. Personal jurisdiction mandates that there is a proper relationship between the defendant and the forum. See U.S. Const. Amend. XIV; Internat'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Hancock v. Boulder County Pub. Trustee, 920 P.2d 854, 858 (Colo.App.1995).

Venue, on the other hand, is the territorial place where the power to adjudicate is to be exercised, that is, the place where the suit may or should be heard. Denver Air Cir. v. Dist. Court, 839 P.2d 1182, 1184 (Colo.1992). The requirements of jurisdiction are grounded in the state's inherent judicial power, while the requirements of venue are grounded in convenience to litigants. 77 Am.Jur.2d Venue § 1.

Indeed, as we have consistently held in the past, the right to have the place of trial changed because the action is brought in an improper county is not jurisdictional. Kirby v. Union Pac. Ry. Co., 51 Colo. 509, 541, 119 P. 1042, 1054 (1911); see also Slinkard v. Jordan, 131 Colo. 144, 149, 279 P.2d 1054, 1056 (1955). Venue is a mere personal privilege and generally can be waived. Id.; see also Fletcher v. Stowell, 17 Colo. 94, 96, 28 P. 326, 327 (1891).

Thus, bringing an action in an improper county is not a fatal defect in the case. In such a situation, the particular court lacks power to proceed further with the case other than to order the removal of the case to the proper county. C.R.C.P. 98(f)(1); Cliff v. Gleason, 142 Colo. 500, 504, 351 P.2d 394, 397 (1960); Lamar Alfalfa Milling Co. v. Bishop, 80 Colo. 369, 374, 250 P. 689, 691 (1926); Krendl, Colorado Methods of Practice § 24.22. We have sometimes articulated a court's lack of power to hear the case when venue is improper as divesting the trial court of "jurisdiction." See, eg., Millet v. Dist. Court, 951 P.2d 476, 477 (Colo.1998). However, such language refers to the lack of power to hear the case in a specific county based on venue requirements and should not to be confused with the court's subject-matter or personal jurisdiction.

The requirements of venue, like permissive joinder, are not overly restrictive. Rule 98 grants trial courts discretion to try defendants in a number of different counties depending on the nature of the action, where the underlying transaction occurred, the residence of the parties, and the place where a party is served. C.R.C.P. 98(a),(b),(c).

For tort actions with multiple defendants, venue is proper where the defendants, or any of them, may reside, C.R.C.P. 98(c)(1) (emphasis added), or where the tort was committed. C.R.C.P. 98(c)(5). Thus, when a court tries one defendant in a county where neither that defendant resides nor where the tort occurred, so long as there is a co-defendant that resides in that county, our venue rules are satisfied. Rule 98 does not make venue mandatory, as a matter of law, in a particular county. On the contrary, the rule is permissive and it is within the broad discretion of the trial court to choose among proper options. City of Cripple Creek v. Johns, 177 Colo. 443, 448, 494 P.2d 823, 826 (1972). Rule 98 requires a change of venue, as a matter of law, only when the county where suit is brought is improper. Millet, 951 P.2d at 477.

Consistent with our joinder rule and its federal counterpart, the federal system also has a venue rule that permits different locations for venue in multiparty cases. See 28 U.S.C. § 1391. For example, although venue is generally proper in the district where a defendant resides, in an action against multiple defendants, venue is proper in the district of any defendant, if all defendants are residents of the same state. 28 U.S.C. §§ 139l1(a)(1), 1891(b)(1); Wright, Miller, Kane, Federal Practice and Procedure § 1659.

In sum, Colorado rules of permissive join-der and venue, as do their federal counterparts, allow trial courts wide latitude in joining defendants and trying them in numerous, proper locations. As a result, the rules promote efficiency by permitting courts to hear all reasonably related claims against different defendants in a single proceeding.

II. The Interplay between Permissive Joinder and Venue

Having described the language and rationale behind our permissive joinder and venue rules, I turn to discuss how both requirements can co-exist.

As pointed out by the majority, this court has not squarely addressed the interplay between Rules 20(a) and 98(c). Indeed, neither Sutterfield nor Millet completely answers this question. In Sutterfield, we held that the trial court did not err in permissively joining two defendants who caused the plaintiff one back injury resulting from two separate car accidents. 165 Colo. at 230, 438 P.2d at 239-40. The issue of whether venue requirements were also satisfied was not before the court.

In Millet, involving three car accidents, we held that venue was not satisfied because the trial court retained the case in El Paso County for determining the question of damages, even though one of the defendants was a resident of Jefferson County and his accident occurred in Douglas County. 951 P.2d 477. Because venue was improper for the Jefferson County defendant, we concluded that for him, a change of venue was required as a matter of law. We did not reach the issue of permissive joinder. Id.

However, based on the factual allegations in Millet, it is unclear whether the permissive joinder requirements would have been satisfied. Although the trial court retained the damages portion of the action, the plaintiff did not claim on appeal that she suffered virtually identical, or even similar, injuries in all three accidents so as to satisfy the "same occurrence" prong of Rule 20(2). Hence, we did not reach the issue of whether venue for the Jefferson County defendant would have been satisfied if he were properly joined with a defendant residing in El Paso County. Thus, given the limited nature of these two cases, I look beyond Sutterfield and Millet to answer the question before us.

As opposed to the majority's rationale, I suggest there exists no need to look to other jurisdictions since our cases provide guidance to resolve this issue. In Twin Lakes Reservoir and Canal Co. v. Bond, 156 Colo. 433, 399 P.2d 793 (1965), and City of Cripple Creek v. Johns, 177 Colo. 443, 494 P.2d 823 (1972), we laid the groundwork for holding, as I urge, that our permissive joinder and venue requirements do not conflict and there exists no need to elevate the requirements of venue over those of permissive joinder.

Twin Lakes involved a plaintiff landowner who filed suit against three defendants in a quiet title action and a breach of contract claim. The landowner sought to remove an alleged cloud upon the title to a track of land that the landowner alleged arose by reason of a trust deed issued by defendant Twin Lakes. 156 Colo. at 435, 399 P.2d at 794. Twin Lakes made the deed of trust to a defendant bank as trustee as security for bonds that Twin Lakes had issued. The third defendant, an insurance company, held the deed of trust. The landowner brought two claims against all three defendants. First, he brought a quiet title action alleging that the property was not subject to the deed of trust. Second, the landowner brought a contract claim and sought damages, alleging that defendant Twin Lakes breached its agreement to procure a release of the trust deed so far as it affected his property. Id. at 435-36, 899 P.2d at 794.

In response to the defendants' appeal claiming that the trial court erred by joining the defendants in a single proceeding and denying defendant Twin Lakes motion for a change of venue on the contract claim, we held that both venue and permissive joinder were satisfied. Id. at 437, 399 P.2d at 795. Notably, we addressed venue first.

We held that venue requirements, pursuant to Rule 98(a) for property claims, were satisfied because the trial was held in the county where the property was located. We explained that "[ulnder such conditions where the venue of one claim for relief is properly laid in the county in which it is brought, a court should not, except under extraordinary cireumstances, change venue of another claim properly joined with the first claim." Id.

For permissive joinder of the defendants, we reasoned that the two-pronged requirements of Rule 20(a) were satisfied. Both claims involved the same series of transactions: the breach of the contract gave rise to both the cloud on the landowner's title and his resulting claim of damages. In addition, the two claims involved common questions of law and fact because it was necessary for both claims to determine whether the deed of trust was a valid encumbrance on the landowner's title or a mere cloud. Id.

Similar to our analysis in Twin Lakes, we held that venue was proper for all joined defendants in City of Cripple Creek. There, a concrete company filed suit against the City of Cripple Creek and other defendants for failure to make payments required by contract. The defendants sought a writ of prohibition compelling a change of venue, arguing that venue should be in Teller County because the majority of the defendants resided there, or in the alternative, because the contract was to be performed there. 177 Colo. at 446-47, 494 P.2d at 825. Reiterating the permissive nature of the venue requirements, we disagreed.

Pursuant to the plain language of Rule 98(c) that permits a trial court broad discretion in satisfying venue requirements in the county where any of the defendants reside, we held that venue was proper in Denver because some of the joined defendants resided there. Id. Although venue would have been satisfied in Teller County, Rule 98 did not require the trial court to change the forum as a matter of law since venue was properly satisfied in Denver. Id. We supported our conclusion by noting that venue was also proper in Denver because three of the defendants filed answers and counterclaims in Denver-thus implying that the joined defendants waived venue requirements pursuant to Rule 98(e). However, even with the additional rationale of waiver, we clearly held that the language of Rule 98(c), not Rule 98(e), was "dispositive of the [venue] issue" since some of the joined defendants were residents of Denver. Id.

As demonstrated by our holdings in Twin Lakes and City of Cripple Creek, there exists no inherent conflict between our rules of joinder and venue. The federal courts have reached the same conclusion based on similar rules. In both systems, doctrines of subject-matter and personal jurisdiction occasionally limit the permissive joinder of defendants. Although the federal venue rule provides additional options not relevant here, the pertinent language is virtually identical to our Rule 98 and permits differing venue locations in multiparty cases. See Wright, Miller, Kane, Federal Practice and Procedure § 1659. Venue is generally proper in the federal district where a defendant resides. However, for multiple defendants residing in the same state and joined under Fed.R.Civ.P. 20(a), venue is proper in the federal district of any defendant. § 283 U.S.C. §§ 1391(a)(1), 1891(b)(1).

HII. The Trial Court Did Not Abuse its Discretion by Denying the Motion to Sever and Change Venue

Consistent with the statutory requirements found in Rules 20(a) and 98(c), our case law interpreting the rules, and federal law, the permissive joinder and venue requirements are satisfied for defendants Sytsma and Kui-per. The trial court did not abuse its discretion when it denied the motion to sever and change venue. By denying the defendant's motion, the trial court acted consistently with and in furtherance of the permissive and flexible authority vested by the rules. Although there is nothing that prevents an application of the venue rules first, see Twin Lakes, 156 Colo. at 437, 399 P.2d at 795, I believe that the rules harmonize better if an application of permissive joinder precedes venue. In other words, before determining where defendants reside for a determination of proper venue, it is useful to determine which defendants are properly joined and thus at issue in the proceeding.

As acknowledged by the majority, the defendants are properly joined pursuant to the two-pronged requirement of Rule 20(a). First, the "same occurrence" is the virtually identical injury from the two car accidents involving Sytsma and Kuiper. See Sutterfield, 165 Colo. at 229-30, 438 P.2d at 239; Twin Lakes, 156 Colo. at 437, 399 P.2d at 795. Second, the common question of fact is the injury and the extent to which each defendant might be held liable. Id.

Having determined that the defendants were properly joined, I turn to venue. Both car accidents occurred in El Paso. Sytsma is a resident of Denver and Kuiper is a resident of El Paso. Spencer filed a negligence claim in Denver against both Sytsma and Kuiper. Under the permissive requirements of Rule 98(c) for tort actions, two counties are proper for purposes of venue: the City and County of Denver and El Paso County.

Under C.R.C.P. 98(c)(5), venue would be proper in El Paso because the defendants allegedly committed the torts there. However, venue would also be proper in either Denver or El Paso under C.R.C.P. 98(0)(1) because one defendant resides in each county. Although venue would have been satisfied in El Paso, Rule 98 does not require the trial court to change the forum as a matter of law since venue was proper in Denver. City of Cripple Creek, 177 Colo. at 448, 494 P.2d at 825.

By allowing the trial court to proceed with these factually inter-related claims in one forum, the rationales behind the rules are fulfilled: scarce judicial resources are maximized in a single judicial proceeding.

IV. Conclusion

For the reasons stated, I would affirm the trial court's order denying the defendants motion to change venue and discharge the rule to show cause. Hence, I respectfully dissent.

I am authorized to say that Chief Justice MULLARKEY and Justice KOURLIS join in this dissent.

      . Fed.R.Civ.P. 20(a) provides in relevant part: All persons ... may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.

      . Rule 98(c)(1), the pertinent subsection at issue ere, provides: .
      [Aln action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county; or if the defendant is a nonresident of this state, the same may be tried in any county in which the defendant may be found in this state, or in the county designated in the complaint, and if any defendant is about to depart from the state, such action may be tried in any county where plaintiff resides, or where defendant may be found and service had.
      C.R.C.P. 98(c)(1)(emphasis added).

      . When there are joined defendants that include a Colorado resident and residents of another state, the plaintiff must designate a county in the complaint that is related to either the Colorado defendant's county of residence, the plaintiff's county of residence when the defendant is served there, or the county in which the tort occurred. See Denver Air Ctr., 839 P.2d at 1185. Here, however, all of the parties are Colorado residents.

      . One commentator aptly explained the liberal interplay between federal joinder and venue rules as follows:
      Generally, when multiple causes of action are joined, venue must be established for each separate cause of action. This rule would appear to create a problem for much modern multi-claim and multi-party litigation. There is no real problem, however, because since the early twentieth century, the courts have interpreted the meaning of a cause of action broadly ... factually interrelated claims have been considered to be one cause of action with two grounds of relief. If venue is proper for one ground, this will support adjudication of the related ground.
      17 James Wm. Moore, Moore's Federal Practice § 110.05 (3d ed.2002)(internal citations omitted). As the majority notes, another rationale for allowing venue over joined causes of actions in federal court is the theory of "pendant venue." Id.