Independent Reservoir Co. v. Lichter.
2025 COA 13. No. 24CA0348. Attorneys and Clients—Ineffective Assistance of Counsel—Remedial and Punitive Sanctions for Contempt—Indirect Contempt—Limitations—Crim. P. 35(c)—CRCP 107—Motion for Reconsideration.
January 30, 2025
Independent Reservoir Company has an easement that runs through property owned by Lichter and Pollock. The trial court entered judgment establishing the scope and location of the easement, and it permanently enjoining Lichter from removing survey stakes within the easement’s boundaries. A court of appeals division affirmed the judgment. The court later found Lichter in contempt for placing a gate, a surveillance camera, and an irrigation pipe within the easement boundaries and imposed remedial sanctions until she removed the obstructions. Another court of appeals division affirmed that order. While that appeal was pending, the easement holders sought punitive contempt sanctions against Lichter and Pollock for placing another irrigation pipe in another area within the easement. The trial court entered an order finding Lichter and Pollock guilty of contempt and imposing fines against both of them as a punitive sanction. A third court of appeals division affirmed that order. After the mandate issued in the third appeal, Lichter and Pollock filed the underlying motion under both Crim. P. 35(c) and CRCP 107(e), seeking relief based on ineffective assistance of counsel during the punitive contempt proceedings. They alleged that their counsel did not advise them of their privilege against self-incrimination, allowing them to offer incriminating testimony at the hearing, and failing to invoke constitutional protections for defendants facing potential punitive contempt sanctions. The trial court denied the motion on procedural grounds, reasoning that Lichter and Pollock (1) couldn’t seek review of the punitive contempt order under Rule 35(c); and (2) couldn’t advance the same arguments that weren’t allowed under Rule 35(c) under “the more general” Rule 107(e).
On appeal, Lichter and Pollock argued that they should have been able to raise their ineffective assistance of counsel claims through Rule 35(c). To seek relief under Rule 35(c)(2), a person must have been convicted of a crime. But even though punitive sanctions are criminal in nature, punitive contempt is not a criminal offense. And the Colorado Supreme Court recently held that CRCP 107 governs all contempt proceedings that arise out of an underlying case that is civil in nature. Accordingly, the supreme court concluded that parties subject to punitive sanctions for indirect contempt in a civil case may seek relief for alleged ineffective assistance of their counsel in the contempt proceedings by filing a motion for reconsideration under Rule 107(e). Thus, while the court correctly declined to consider Lichter and Pollock’s arguments under Rule 35(c), it should have considered those arguments under Rule 107(e).
The order was reversed and the case was remanded for consideration of the merits of Lichter and Pollock’s motion under CRCP 107(e).