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Adams County Housing Authority v. Panzlau.

2022 COA 148. No. 21CA1972. Code of Judicial Conduct—Colorado Governmental Immunity Act—CRCP 97—Successive Motions to Recuse—Judge’s Former Law Firm—Stay of Proceedings.

December 29, 2022

Plaintiff is a public body created under the Colorado statutes governing county housing authorities and is charged with providing affordable housing and services to low-income residents of Adams County. Defendant rented an apartment from plaintiff and notified plaintiff that the apartment had a water leak. Plaintiff paid for defendant to stay at a hotel while it repaired the leak. A few days later, defendant complained of water damage and mold in the apartment, so plaintiff hired a contractor that submitted a report showing an elevated level of mold spores in the apartment. Pursuant to their lease, plaintiff asked defendant to vacate the apartment so it could perform repairs and remediate the mold. Defendant continued to stay in the hotel but refused to remove her belongings from the apartment. Plaintiff filed a forcible entry and detainer action against defendant for authorization to remove her belongings from the apartment so it could make the repairs and perform the remediation. Defendant counterclaimed, and over the course of the litigation, she filed three motions for recusal of the trial judge. After the court entered an order for possession in favor of plaintiff, defendant amended her counterclaims. The court dismissed all counterclaims.

On appeal, defendant argued that the district court erred in denying her recusal motions because the judge (1) failed to recuse himself and (2) failed to stay the proceedings while the third motion to recuse was pending, as required by CRCP 97. Here, all of defendant’s recusal motions rested on the same factual allegations that the judge had previously been a lawyer at a law firm when that firm had represented plaintiff in a different matter. Defendant additionally alleged on appeal that the judge concealed his prior relationship with opposing counsel and did not truthfully clarify that relationship for the record. However, under the Colorado Code of Judicial Conduct, the former employer’s representation of the party in a matter unrelated to the litigation before the judge does not automatically require recusal, so the judge was not automatically required to recuse himself. Further, Rule 97 does not require judges to stay the proceedings when, as here, a party files a successive recusal motion based on the same factual bases as the party’s prior unsuccessful motion to recuse. Accordingly, the district court did not err.

Defendant also argued that the district court improperly dismissed her tort counterclaims under the Colorado Governmental Immunity Act (CGIA) (1) by allowing opposing counsel to determine her date of injury, when the date was “unknowable” to opposing counsel; (2) because her notice of claim was timely filed; and (3) by denying her a hearing. First, the district court did not “allow” opposing counsel to determine defendant’s date of injury; her own communications with plaintiff reflect the date by which she had actual knowledge of, and therefore had discovered, her mold-related injuries. Second, the district court correctly determined that the notice period ran from the time of discovery of the injuries and not, as defendant asserted, from the last day of exposure. Therefore, her notice to plaintiff was due by July 20, 2021, but not filed until July 28. Third, the court was not required to conduct a hearing because there was no factual dispute that defendant failed to provide plaintiff with timely notice of her claim. Accordingly, the district court properly dismissed the tort counterclaims for lack of subject matter jurisdiction pursuant to the CGIA. Further, defendant insufficiently pleaded her breach of contract counterclaim.

The court of appeals also rejected defendant’s argument that the district court acted arbitrarily or capriciously when entering orders in the case.

The judgment was affirmed.

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

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