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AA Wholesale Storage, LLC v. Swinyard.

2021 COA 46. No. 19CA2307.  Civil Procedure—Judgment—Collections—CRCP 69(g)—Discretion.

April 8, 2021

AA Wholesale Storage, LLC (AA) obtained a default judgment against Swinyard for nonpayment of a debt on a commercial lease. AA was unsuccessful in collecting the judgment and learned that Swinyard was prosecuting a civil action against unrelated third parties. AA moved under CRCP 69(g) for a turnover of Swinyard’s claims in the hope of applying the proceeds of that litigation to satisfy its judgment. The district court denied the motion.

On appeal, Swinyard argued that the Court of Appeals lacked jurisdiction because the district court’s order was not a final judgment. Here, AA requested the turnover of Swinyard’s choses in action and the court definitively denied that request. The district court’s order ended the particular part of the action in which it was entered leaving nothing further for the district court to do as to this particular collection tool. Therefore, the order was final and appealable.

On the merits, AA argued that the court abused its discretion in denying its CRCP 69(g) motion. The court recognized a number of practical problems associated with the turnover of Swinyard’s claims to AA, which included Swinyard’s required participation in the case to prove the value of services rendered, Swinyard’s lack of motivation to pursue the case if the funds were going directly to AA, and consideration of pending counterclaims against Swinyard. The court also invited AA to consider alternative relief in the form of a lien on the proceeds of Swinyard’s litigation. These considerations were proper exercises of the court’s discretion.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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