Opinion
No. 73-323
Decided April 16, 1974. Rehearing denied May 14, 1974.
Applicants for bank charter moved to dismiss amended petition for review filed by petitioner who sought to challenge banking board's grant of the charter.
Dismissed
1. BANKS AND BANKING — Petition to Review — Grant of Charter — Applicants — — Indispensable Parties. In petition to review decision of state banking board granting applicants' request to charter a new state bank, the applicants for the charter are indispensable parties.
2. APPEAL AND ERROR — Review — Banking Board Decisions — Appellate Rules — Inadequate — Rules of Procedure — Govern. In proceedings in Court of Appeals to review chartering decisions of the State Banking Board, such proceedings do not fall within the rules applicable to appeals generally, and to the extent that the appellate rules are inadequate the rules of civil procedure govern.
3. Review — Banking Board Decision — Rule of Procedure — Relation Back — — Not Apply — No Timely Joinder — Applicants — Court of Appeals — No Jurisdiction. In an action to review administrative proceedings, rule of procedure providing that amendment to pleading relates back to date of the original pleading is not applicable; thus, amended petition filed in Court of Appeals seeking review of the decision of the State Banking Board did not accomplish a timely joinder of the applicants for that banking charter, and the Court of Appeals is therefore without jurisdiction to proceed further in the matter.
Review of an Order from the Banking Board of the State of Colorado
Simon, Eason, Hoyt Malone, P.C., Richard L. Eason, for petitioner.
John P. Moore, Attorney General, Glen E. Keller, Assistant Attorney General, for respondent State Banking Board and Harry Bloom, State Bank Commissioner.
Rothgerber, Appel Powers, A. Frank Vick, for respondents Larry A. Mizel, Harold Guzofsky, Steven P. Levin, John Andrew Love and William B. Kemper.
Larry A. Mizel, Harold Guzofsky, Steven P. Levin, John Andrew Love and William B. Kemper (applicants) have filed a motion to dismiss the amended petition for review of Columbine State Bank (petitioner). We agree with applicants' contentions and dismiss the petition.
The petition filed in this court sought review of the decision of the Banking Board of the State of Colorado, which decision granted applicants' request to charter a new state bank. The petitioner, who challenged the application at hearings before the Banking Board, received written notice of the Board's decision on July 25, 1973, and filed its petition for review in this court on August 24, 1973, pursuant to Colo. Sess. Laws 1973, ch. 100, 14-2-7 at 358. This statute vests jurisdiction to entertain initial review of Bank Board chartering decisions in the Court of Appeals, and requires petitions for review to be filed within 30 days of the decision of the Board.
The original petition named only the Banking Board and Harry Bloom, State Bank Commissioner, as respondents. The Board filed a motion to dismiss the petition on the grounds that petitioner had failed to join indispensable parties, the applicants. On January 14, 1974, this court ruled that the applicants were indispensable parties and granted petitioner ten days to amend its petition to join applicants in the proceedings. At that time, the parties did not raise, nor did this court consider, the issue of the timeliness of joinder. An amended petition naming applicants as parties was filed January 17, 1974.
After their joinder, applicants filed the motion to dismiss which is the subject of this opinion, alleging that the statutory period for commencement of the appeal had expired at the time they were joined and that the court therefore lacks jurisdiction of the parties. In response to this motion, petitioner urges that C.R.C.P. 15(c) allows the amended petition to relate back to the date the original petition was filed.
[2,3] We note at the outset that proceedings in this court to review chartering decisions of the Banking Board do not fall within the rules applicable to appeals generally. Under the statute, judicial proceedings to review the Banking Board determinations originate in this court. Therefore, to the extent that appellate rules are inadequate in this situation, we are governed by the Colorado Rules of Civil Procedure. C.R.C.P. 1(a) states:
"These rules govern the procedure in the . . . court of appeals . . . in all special statutory proceedings, with the exceptions stated in Rule 81."
It is therefore necessary for this court to determine the applicability of Rule 15(c) in the context of these proceedings.
Rule 15(c) provides:
"Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment: (1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him."
Petitioner alleges that all the requirements of Rule 15(c) have been met in this case, and therefore the amended petition should relate back to the time of filing of the original petition. The effect of applying Rule 15(c) would be to permit petitioner to add parties to the action after the statutory time for filing the appeal had expired. In two recent cases, the Supreme Court has held that this result is not permitted. Western Paving Construction Co. v. District Court, 183 Colo. 174, 515 P.2d 465; Hidden Lake Development Co. v. District Court, 183 Colo. 168, 515 P.2d 632. In both cases the court held that, in an action in district courts to review administrative proceedings, failure to join indispensable parties prior to the expiration of the statutory time for appeal is a fatal defect which deprives the court of jurisdiction to entertain the action. We must conclude, therefore, that Rule 15(c) of the Colorado Rules of Civil Procedure is not applicable to proceedings such as this and that the amended petition did not accomplish timely joinder of the applicants.
This court is therefore without jurisdiction to proceed further in this matter.
It is therefore ordered that Applicants' motion to dismiss the amended petition for review be and is hereby granted and said amended petition for review is hereby dismissed.
CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.