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Lewis v. Keim9/22/1994
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).
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