Opinion
No. 93CA0731
Decided September 22, 1994
Appeal from the District Court of Boulder County Honorable Richard C. McLean, Judge No. 90CV559
JUDGMENT AFFIRMED
Robert R. Kayne, Longmont, Colorado, for Plaintiffs-Appellants
Bayer, Carey McGee, P.C., Terry L. Lutts, Denver, Colorado, Gary L. Palumbo, Denver, Colorado, for Defendant-Appellee
Plaintiffs, Jane C. and Richard A. Lewis, appeal the order dismissing their action against defendant, Noel P. Keim. We affirm.
Plaintiffs were Colorado residents when they brought this personal injury action. They subsequently moved to California, and on January 11, 1993, defendant, on grounds that plaintiffs were no longer residents of Colorado, sought a cost bond under § 13-16-102, C.R.S. (1987 Repl. Vol. 6A), to cover costs defendant anticipated he would incur.
On February 8, plaintiffs responded to the motion. They admitted that they resided in California, but asserted that they were "both unemployed, have no assets with which to deposit for a cost bond, own no real estate, and have very nominal personal property." Therefore, they asked the court "pursuant to [§ 13-16-103, C.R.S. (1994 Cum. Supp.) (in forma pauperis statute) to] permit the Plaintiffs to proceed without giving security for the payment of cost in this suit."
In reply, defendant pointed out that plaintiffs' response was filed beyond the time allowed under C.R.C.P. 121 § 1-15(1) and urged that it should be stricken, and further, defendant noted that the response admitted that plaintiffs were unable to pay the costs of suit, an additional ground for requiring a cost bond under § 13-16-102.
On March 1, plaintiff Richard A. Lewis filed an affidavit stating that both plaintiffs were unemployed, did not own any real estate, and did not "have any assets which we are able to directly access or which have a value sufficient to provide the requested cost bond." Also on March 1, the court ordered that a $2,500 bond be filed within fifteen days.
On March 17, defendant moved to dismiss, as plaintiffs had not filed a bond or otherwise responded to the court's order within the time allowed.
On March 23, plaintiffs filed a "verified motion to reconsider cost bond." Plaintiffs asserted that neither of them were employed and that they had no funds or assets with which to post a cost bond or to move back to Colorado. They requested that the court "reconsider its Order requiring the payment of a $2,500.00 Cost Bond and allow the Plaintiffs to continue without security for costs as provided for in [the in forma pauperis statute]." A petition for in forma pauperis status was attached to the motion for reconsideration.
On March 25, the court wrote on the motion for reconsideration: "Denied. A cost bond is mandated by the statute." However, the court made no notation on the attached petition to proceed in forma pauperis. On the same date the court dismissed the action, "as a result of Plaintiff's failure to post Cost Bond as previously ordered by this Court."
Plaintiffs contend, in essence, that the trial court erred in requiring them to file a cost bond. We disagree.
Section 13-16-101, C.R.S. (1987 Repl. Vol. 6A) provides that in all cases in law and equity, a nonresident plaintiff must give security for "all costs which may accrue in such action either to the opposite party or to any of the officers of such courts." The security must be in writing signed by a responsible person residing in this state.
Under § 13-16-101, the court has no discretion, but must require security from a nonresident plaintiff. In re Marriage of Glickman v. Mesigh, 200 Colo. 320, 615 P.2d 23 (1980); see Bank of America National Trust v. Denver Hotel Ass'n, 830 P.2d 1138 (Colo.App. 1992); In re Marriage of Kronbach, 757 P.2d 175 (Colo.App. 1988).
As relevant, § 13-16-102 provides:
If such action is commenced without filing such instrument of writing, or if at any time after the commencement of any suit by a resident of this state, he shall become nonresident, or if, in any case, the court is satisfied that any plaintiff is unable to pay the costs of suit, or that he is so unsettled as to endanger the officers of the court with respect to their legal demands, it is the duty of the court, on motion of the defendant or any officer of the court, to rule the plaintiff, on or before the day in such rule named, to give security for the payment of costs in such suit. If such plaintiff neglects or refuses, on or before the day in such rule named, to file such instrument, the court, on motion, shall dismiss the suit. . . .
Section 13-16-103(1), C.R.S. (1994 Cum. Supp.) provides that, if the trial court determines that a person "is unable to prosecute or defend any civil action or special proceeding because he is a poor person and unable to pay the costs and expenses thereof," the court may permit that person to commence and prosecute or defend the action without the payment of costs. However, the statute only permits the waiver of costs chargeable by the court. The need to pay costs and expenses to others is not suspended by § 13-16-103(1). See Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970); Garcia v. Estate of Wilkinson, 800 P.2d 1380 (Colo.App. 1990).
Here, the trial court did not determine that plaintiffs were poor persons. However, even if the court had so determined and had granted them relief under § 13-16-103(1), security for costs would still be required under § 13-16-102, which also obligates the court to require that security be provided if the court "is satisfied that any plaintiff is unable to pay the costs of suit." Security required under § 13-16-102 may not be excused or deferred under § 13-16-103(1).
And, § 13-16-102 provides that if a plaintiff ordered to provide security "neglects or refuses, on or before the day in such rule named, to file such instrument, the court, on motion, shall dismiss the suit."
Therefore, we find no error in the dismissal of plaintiffs' action after they failed to file the required bond.
Plaintiffs also assert that requiring nonresident poor persons to file a cost bond violates the federal and state constitutions. However, since plaintiffs raise this issue for the first time on appeal, we will not consider it. See In re Marriage of Gavend, 781 P.2d 161 (Colo.App. 1989).
In view of our disposition, we need not address the parties' remaining contentions.
The judgment is affirmed.
JUDGE CRISWELL concurs.
JUDGE TURSI dissents.