Serna v. Bentley

24CA0293 Serna v Bentley 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0293
El Paso County District Court No. 23CV314
Honorable Christopher J. Munch, Judge

Francisco Serna and Ajhalei Snoddy,

Plaintiffs-Appellants,

v.

Eric Bentley and Brad Rodenberg,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 6, 2025

Francisco Serna, Pro Se

Ajhalei Snoddy, Pro Se

Philip J. Weiser, Attorney General, Joseph G. Michaels, Assistant Solicitor
General, Denver, Colorado, for Defendant-Appellee Eric Bentley

Winget, Spadafora & Schwartzberg, LLP, Derek C. Anderson, Boulder,
Colorado, for Defendant-Appellee Brad Rodenberg
¶1 This is at least the fifth case filed by plaintiffs, Francisco Serna

and Ajhalei Snoddy (former owners), in connection with eminent

domain proceedings initiated by the City of Colorado Springs in

2017. Their latest attack is a C.R.C.P. 106 action, brought against

defendants Judge Eric Bentley, the judge who presided over the

eminent domain case; the City; Kyle Wigington, the City’s expert

appraiser; and Brad Rodenberg, a representative of an entity that

contracted with the City.

¶2 The district court dismissed the action for lack of subject

matter jurisdiction, and the former owners appeal. We affirm.

I. Factual Background and Procedural History

¶3 The City sought to acquire the former owners’ land to

construct a public works project. When negotiations failed, the city

council held a public meeting at which it adopted a resolution

authorizing condemnation of the property.

¶4 The City then filed a condemnation petition in district court.

See § 38-1-102, C.R.S. 2024. In October 2017, after a contested

hearing, Judge Bentley granted the City’s motion for immediate

possession of the property. See § 38-1-105(6)(a), C.R.S. 2024. The

1
case proceeded to a valuation trial in April 2023.1 See § 38-1-

105(1)-(2). At the conclusion of trial, a panel of three

commissioners ascertained the property’s value at $103,203.75.

¶5 The former owners filed a series of post-trial motions. One

motion challenged the 2017 immediate-possession order for lack of

subject matter jurisdiction based on an invalid condemnation

resolution. According to the former owners, the city council’s

resolution was invalid because (1) contrary to Rodenberg’s

representation to city council, the former owners did not have

notice of the meeting at which the resolution was adopted; and

(2) Wigington’s appraisal failed to follow certain standards, resulting

in an unreasonable offer of compensation during the parties’

negotiations. A second motion challenged the valuation, also based

on purported defects in Wigington’s appraisal.

1 The delay between the immediate-possession hearing and the

valuation trial was attributable to an appeal of the district court’s
summary judgment on valuation, see City of Colorado Springs v.
Serna, (Colo. App. No. 19CA0856, Aug. 20, 2020) (not published
pursuant to C.A.R. 35(e)) (reversing summary judgment), and to the
former owners’ attempt to remove the case to federal court, see City
of Colorado Springs v. Serna, No. 1:21-cv-03444-DDD-SKC (D.
Colo., June 13, 2022) (unpublished order granting motion to
remand).
2
¶6 Judge Bentley denied both motions as untimely and meritless.

He then entered final judgment, conveying fee simple interest in the

property to the City.

¶7 The former owners appealed, reasserting the arguments raised

in the post-trial motions. The division rejected those arguments

and affirmed the judgment. City of Colorado Springs v. Serna, (Colo.

App. No. 23CA1710, Sept. 5, 2024) (not published pursuant to

C.A.R. 35(e)). It concluded that the owners were not entitled to

notice of the city council meeting; regardless, the City’s purported

lack of authority to condemn the property did not deprive the court

of subject matter jurisdiction; and any alleged defects in the

appraisal did not render Wigington’s expert testimony inadmissible.

See id. at ¶¶ 22, 27, 48.

3
¶8 While their direct appeal was pending, the former owners filed

the C.R.C.P. 106 complaint at issue in this appeal.2 The complaint

• alleged that Judge Bentley abused his discretion by denying

their post-trial motion challenging the court’s subject matter

jurisdiction;

• reiterated their argument that the condemnation resolution

was invalid because their “receipt of notice was

misrepresented” to city council, and the invalid resolution

deprived the court of subject matter jurisdiction;

• sought review of all Judge Bentley’s orders issued in the case;

2 The former owners also filed multiple other lawsuits challenging

the condemnation proceedings. See Serna v. City of Colorado
Springs, No. 1:21-cv-939-LY, 2022 WL 17813791 (W.D. Tex. Aug.
26, 2022) (unpublished order dismissing complaint); Serna v. Bd. of
Cnty. Comm’rs, Civ. A. No. 22–cv–02998–DDD–MDB, 2024 WL
1715003 (D. Colo. Mar. 29, 2024) (unpublished order dismissing
complaint); Serna v. City of Colorado Springs, Civ. A. No. 1:23-cv-
00728-DDD-MDB, 2024 WL 1715004 (D. Colo. Mar. 29, 2024)
(unpublished order dismissing complaint); Serna v. Turner, No.
1:23-cv-02579, 2024 WL 3329049, at *6 (D. Colo. July 8, 2024)
(unpublished order dismissing complaint filed against Judge
Bentley and two other judges, the Colorado Springs Assistant City
Attorney, and the Federal Highway Administration, and cautioning
the former owners that they “must not abuse judicial resources by
filing repetitious lawsuits”).
4
• asserted a claim under 42 U.S.C. § 1983 against Rodenberg

for “misrepresenting that [they] had received notice of the [city

council] meeting”; and

• asserted a claim under 42 U.S.C. § 1983 against Wigington for

failing “to perform the required ‘cash equivalency’ analysis” in

his appraisal, which resulted in an unreasonable offer of

compensation during negotiations.3

¶9 The City, Judge Bentley, and Rodenberg moved to dismiss the

complaint under C.R.C.P. 12(b)(1) for lack of subject matter

jurisdiction and, in Rodenberg’s case, also under C.R.C.P. 12(b)(5)

for failure to state a claim for relief. (Wigington was never served

with the complaint.) The district court granted the motions to

dismiss. It concluded that a district court lacks jurisdiction to

review “the decisions of other divisions of th[e] same [c]ourt,” and,

because the § 1983 claims were merely “secondary” to the Rule 106

claims, the court also lacked jurisdiction to resolve those claims.

3 The petition also included claims for declaratory judgment and an

injunction requiring the City to return the property to the former
owners. The former owners do not appeal dismissal of those claims,
and, as a result, the City does not participate in this appeal.
5
II. Discussion

¶ 10 On appeal, the former owners contend that the district court

erred by (1) dismissing their Rule 106 claims against Judge Bentley;

(2) dismissing their § 1983 claims against Rodenberg and

Wigington; (3) denying them an opportunity to amend their

complaint to add a claim challenging the constitutionality of the

eminent domain attorney fee statute; and (4) failing to adjust

deadlines under C.R.C.P. 121 to accommodate their pro se status.

A. Rule 106 Claims Against Judge Bentley

¶ 11 Rule 106(a)(4) provides that “relief may be obtained in the

district court” when, in any civil matter, “any governmental body or

officer or any lower judicial body . . . has exceeded its jurisdiction or

abused its discretion, and there is no plain, speedy and adequate

remedy otherwise provided by law.”

¶ 12 The former owners acknowledge that the rule only permits

district court review of a “lower judicial body.” But they say that

limiting language does not apply here, because Judge Bentley is an

“officer,” and the district court has jurisdiction to determine

whether an “officer” has exceeded his authority.

¶ 13 We discern at least three problems with this argument.
6
¶ 14 First, in construing a rule, we give words their plain meaning

and avoid constructions that would render any of the language

superfluous or would lead to illogical or absurd results. Harvey v.

Cath. Health Initiatives, 2021 CO 65, ¶ 16; People ex rel. Rein v.

Meagher, 2020 CO 56, ¶ 23 (In construing court rules, courts

“employ the same interpretive rules that [they] use in interpreting a

statute.”). The former owners’ interpretation reads “lower judicial

body” out of the rule: if every judge is an “officer,” the term “lower

judicial body” is superfluous. And limiting a district court’s review

to orders of a “lower judicial body,” but then allowing the court to

review orders of a co-equal judge because the judge is an “officer,”

makes no sense.

¶ 15 Second, all of the relevant authority goes against the former

owners. Our supreme court has consistently and unambiguously

held that a judgment is not subject to review by another court “of

coordinate jurisdiction.” State v. Pena, 911 P.2d 48, 57 (Colo.

1996); see also Colo. Jud. Dep’t v. Colo. Jud. Dep’t Pers. Bd. of Rev.,

2022 CO 52, ¶ 53 (“District court judges have no authority to

affirm, modify, or reverse each other’s decisions . . . because district

7
court judges have equal legal stature.”); People v. Maser, 2012 CO

41, ¶¶ 12-13 (explaining that because all district courts are “of

equal stature,” the “only proper forum for review of [a] final

judgment of the district court rests with the court of appeals”).

¶ 16 Third, a Rule 106 action is, in any event, permitted only when

there is no other remedy available. The former owners appealed

Judge Bentley’s final judgment, and a division of this court carefully

reviewed their contentions of error and affirmed. See Martin v.

Arapahoe Cnty. Ct., 2016 COA 154, ¶ 23 (review under C.R.C.P.

106(a)(4) is not available when an appeal of the court’s order may

be pursued); People v. Adams Cnty. Ct., 793 P.2d 655, 656 (Colo.

App. 1990) (C.R.C.P. 106(a)(4) “cannot be used as a substitute for

prescribed appellate procedures.”).

¶ 17 Swift v. Smith, 201 P.2d 609 (Colo. 1948), the sole case on

which the former owners rely, does not advance their position. In

that case, the supreme court reviewed an interlocutory order of the

district court — i.e., a lower judicial body. In contrast, the former

8
owners seek district court review of another district court’s final

judgment,4 which they already appealed to this court.

¶ 18 Accordingly, we conclude that the district court properly

dismissed the Rule 106 claims against Judge Bentley for lack of

jurisdiction.

B. § 1983 Claims Against Rodenberg and Wigington

¶ 19 The complaint alleged that Rodenberg and Wigington violated

the former owners’ constitutional rights to due process and just

compensation and their rights under the Uniform Relocation Act —

Rodenberg, by “misrepresenting that [the former owners] had

received notice” of the 2017 city council meeting, and Wigington, by

submitting a flawed appraisal that informed the City’s offer during

initial negotiations.

¶ 20 True, § 1983 claims “may exist separately from a C.R.C.P.

106(a)(4) action.” Bd. of Cnty. Comm’rs v. Sundheim, 926 P.2d 545,

4 Contrary to the former owners’ apparent understanding, Judge

Bentley’s October 2017 immediate-possession order is not an
interlocutory order. Once final judgment was entered in the case,
all of the prior interlocutory orders (including the immediate-
possession order) merged into the judgment and became final. See
Mulberry Frontage Metro. Dist. v. Sunstate Equip. Co., 2023 COA 66,
¶ 14.
9
549 (Colo. 1996) (emphasis added). But we agree with the district

court that here they did not.

¶ 21 The Rule 106 claims alleged that Judge Bentley abused his

discretion by rejecting the former owners’ arguments that

Rodenberg’s “misrepresentations” and Wigington’s flawed appraisal

rendered the resolution invalid and thereby deprived the court of

jurisdiction. The § 1983 claims are nothing more than restyled

Rule 106 claims. The former owners may not avoid the

jurisdictional bar in this case merely by attaching a new appellation

to the same allegations. See City of Boulder v. Pub. Serv. Co. of

Colo., 2018 CO 59, ¶ 20 (the substance of the claim controls, not

the appellation applied by the litigant); see also People v. Sharp,

2019 COA 133, ¶ 35 (defendant could not avoid his evidentiary

burden “simply by repackaging his newly discovered evidence claim

as one for ineffective assistance of counsel”); City of Aspen v. Kinder

Morgan, Inc., 143 P.3d 1076, 1079 (Colo. App. 2006) (party could

not “avoid implicating the ratemaking jurisdiction of the [Public

Utilities Commission] by recharacterizing its claims on appeal”);

Bodimetric Health Servs, Inc. v. Aetna Life & Cas., 903 F.2d 480,

10
487 (7th Cir. 1990) (“A party cannot avoid the Medicare Act’s

jurisdictional bar simply by styling its attack as a claim for

collateral damages instead of a challenge to the underlying denial of

benefits.”).

¶ 22 But even assuming the § 1983 claims were severable from the

Rule 106 claims, they were nonetheless subject to dismissal under

C.R.C.P. 12(b)(5) for failure to state a claim on which relief can be

granted.

¶ 23 To state a claim for relief under § 1983, a complaint must

allege, among other things, a violation of the plaintiff’s federal

constitutional or statutory rights. See, e.g., Churchill v. Univ. of

Colo., 2012 CO 54, ¶ 37. It is not enough, however, for the

complaint to merely identify a constitutional provision or statute

and then summarily assert a violation. Under the plausibility

standard adopted in Warne v. Hall, 2016 CO 50, ¶ 24, a claim is

subject to dismissal unless the complaint’s factual allegations are

sufficient to “‘raise a right to relief “above the speculative level,” and

provide “plausible grounds”’ to create an inference that the

11
allegations are true.” Walker v. Women’s Pro. Rodeo Ass’n, 2021

COA 105M, ¶ 37 (quoting Warne, ¶ 9).

¶ 24 The complaint alleges that Rodenberg violated the former

owners’ due process rights by misrepresenting to city council that

they had notice of the public meeting at which the condemnation

resolution was adopted.5 But the complaint does not allege that the

former owners had a federal constitutional or statutory right to

receive notice of the meeting. Nor are there any factual allegations

explaining how Rodenberg’s supposed misrepresentation to third

parties deprived the former owners of notice. See Mink v. Knox, 613

F.3d 995, 1001 (10th Cir. 2010) (plaintiffs must state a causal

connection between the defendant’s conduct and the deprivation of

the federal right).

5 The complaint includes a link to the council meeting. See Peña v.
Am. Fam. Mut. Ins. Co., 2018 COA 56, ¶ 14 (in resolving motion to
dismiss, the court may consider exhibits referenced in the
complaint). Although irrelevant for our purposes, we note that what
Rodenberg actually said when asked whether the former owners
had notice of the meeting was that they were “made aware that we
would come [to the city council] through the final offer letter. But I
don’t know that he has a - - we didn’t contact [them] specifically to
say ‘hey, we’re doing this [meeting] today.’”
12
¶ 25 As for Wigington, the complaint alleges that by submitting a

flawed appraisal, he violated the former owners’ Fifth Amendment

right to receive just compensation for any taking of their property.

But the complaint does not allege that the former owners have a

federal constitutional or statutory right to “receive a negotiation

offer of just compensation” or a federal constitutional or statutory

right to an appraisal that adheres to any particular methodology or

standards. And the complaint is entirely devoid of any factual

allegations explaining how the appraisal deprived them of just

compensation. See id. In fact, according to the complaint, the

problem with the allegedly deficient appraisal was not that it

deprived the former owners of just compensation, but that it

required them to “litigate against the City to receive just

compensation.”

¶ 26 Accordingly, we conclude that the district court properly

dismissed the § 1983 claims.

C. Amendment of Complaint

¶ 27 In condemnation actions, property owners are entitled to

recover attorney fees “where the award by the court in the

13
proceedings equals or exceeds one hundred thirty percent of the

last written offer” made to the owner before the condemnation

proceedings commence. § 38-1-122(1.5), C.R.S. 2024.

¶ 28 The former owners filed an untimely motion for attorney fees,

which Judge Bentley denied because the court award ($103,203)

was not 130 percent higher than the City’s final offer ($83,300).

¶ 29 On appeal, the former owners argue that the district court

erred by dismissing their complaint before they had an opportunity

to add a claim challenging the constitutionality of section 38-1-

122(1.5). But they do not allege any prejudice because they fail to

explain why they cannot raise the claim in a separate complaint.

For that reason, we discern no basis for reversing the district

court’s judgment and remanding to allow for amendment of the

Rule 106 complaint. See Laura A. Newman, LLC v. Roberts, 2016

CO 9, ¶ 24 (“[E]rrors in the civil context have long been subject to

harmless error review under [C.R.C.P.] 61 . . . which provides that

‘[t]he court at every stage of the proceeding must disregard any

error or defect . . . which does not affect the substantial rights of

the parties.’”).

14
D. Adjustment of Deadlines

¶ 30 During the Rule 106 proceedings, the former owners moved for

an order “ensuring timeliness parity for unregistered litigants.” As

we understand their argument, they contended that C.R.C.P. 121,

section 1-15, which sets a deadline for responsive motions based on

the initial motion’s filing date, disadvantaged pro se litigants who

file and receive documents by mail. They proposed to file

documents in accordance with C.R.C.P. 5(d) instead, which they

said would allow them to file their responsive motions with the

court “within a reasonable time after service.” Their motion noted

that Judge Bentley and the City had agreed to this procedure. The

district court denied the motion.

¶ 31 On appeal, the former owners argue that they should have had

the benefit of Rule 5’s “reasonable time” standard, but they do not

allege any prejudice from the court’s denial of the motion. See

C.R.C.P. 61. Indeed, when the former owners requested an

15
extension of time to file a responsive motion, the district court

granted the request.6

III. Disposition

¶ 32 The judgment is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.

6 According to the former owners, the “timeliness issues stemming

from mailing procedures led” to Judge Bentley’s failure to review
their objection to the City’s summary judgment motion. But Judge
Bentley’s ruling cannot amount to prejudice because, first,
summary judgment was reversed, and second, the issue in this
appeal is the district court’s — not Judge Bentley’s — denial of the
motion for “timeliness parity.”
16