Petition — Norton v. Leadville Corp.
Supreme Court brief1980
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Supreme Court, U.S,
FILED
80-425 SEP 15 1980
= WHCHREPODRK, JR., CLERK
IN THE
SUPREME COURT OF THE
UNITED STATES
October Term, 1980
No. A159
CHARLES W. NORTON and RUBY W. NORTON;
CHARLES W. and RUBY W. NORTON, INS., an Iowa
Corporation; INVESTMENT SECURITIES COMPANY, an
Iowa Corporation; WM. B. NORTON, Individually and as
Custodian for BRADLEY L. NORTON; FLORENCE N.
BATES and LESLIE W. BATES; LUCILLE YEDLIK and
EDWIN G. YEDLIK; CHARLES WESLEY NORTON and
MACINE M. NORTON; CARL J. MEALY and ALICE N.
MEALY; HAROLD D. NORTON and BRENDA S.
NORTON; MIRIAM N. BAUMANN and ROBER W.
BAUMANN,
Petitioners,
Vv.
LEADVILLE CORPORATION, a Colorado Corporation,
Respondent.
PPPPPPPPPPPPPPPPPPP PSPSPS PSPSPS PSPSPS EPEP PE PEP AEP IAI AEA
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF COLORADO
Ta RA AAAAAMAAAAMAAAAAAAA AMADA RMD DAMA
ARTHUR M. SCHWARTZ, P.C. |
The Market Center
1650 Market Street
Denver, Colorado 80202
(303) 893-2500
QUESTION PRESENTED
Whether the Colorado Appeals Court
denied Petitioners' rights to due process
as guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution
by considering and basing their decisions
on evidence erroneously included in the
record on appeal after Petitioners sought
to correct and modify the record to
conform with the evidence at trial.
4%
#%
TABLE OF CONTENTS
Page
Citation to Opinion Below 1
Statement of Jurisdiction 2
Question Presented 2
Constitutional Provisions Involved 2
Statement of the Case 3
Reasons for Granting the Writ __. 8
Conclusion 11
CONSTITUTION AND STATUTES
Page
United States Constitution:
Amendment V 2
Amendment XIV 3
Title 28, United States code, §1257(3) 2
Appendix
Colorado Revised Statutes, 1973, §7-5-113 _...__ 41
CASE, CITATIONS:
Page
Borden, Inc. v. Federal Trade Commission, 495 F.
2d 785 7th Cir. 1974) 10
Kellogg v. McBee, 452 F.2d 134 7th Cir) 1971) —_. ; 10
United States v. Smith, 493 F.2d 906 5th Cir. 1974) 10
IN THE
SUPREME COURT OF THE
UNITED STATES
October Term, 1980
No. A-159
CHARLES W. NORTON and RUBY W. NORTON;
CHARLES W. and RUBY W. NORTON, INC., an Iowa
Corporation; INVESTMENT SECURITIES COMPANY, an
Iowa Corporation; WM. B. NORTON, Individually and as
Custodian for BRADLEY L. NORTON; FLORENCE N.
BATES and LESLIE W. BATES; LUCILLE YEDLIK and
EDWIN G. YEDLIK; CHARLES WESLEY NORTON and
MACINE M. NORTON; CARL J. MEALY and ALICE N.
MEALY; HAROLD D. NORTON and BRENDA S.
NORTON; MIRIAM N. BAUMANN and ROBERT W.
BAUMANN,
Petitioners,
V.
LEADVILLE CORPORATION, a Colorado Corporation,
Respondent
PAPPPPPPPPPPPPPPPPPPPPPPPPPPPPPP PPP PPP PPP P PPA P PEAS
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF COLORADO
wanna errr
Petitioners pray that Writ of Certiorari issue to review .
the judgment of the Supreme Court of the State of Colo-
rado entered May 19, 1980.
CITATION TO OPINION BELOW
This Petition seeks review of the Colorado Supreme
Court decision in the case of Charles W. Norton, et al. v.
Leadville Corporation, No. 80 SC 91, denying Petitioners’
Petition for Writ of Certiorari and affirming the decesion
and order denying Petitioners’ Motion for Conviction and
Modification of the Record of the Colorado Court of Ap-
peals, No. 78-714.
STATEMENT OF JURISDICTION
The judgment of the Colorado Supreme Court was
entered on May 19, 1980. Jurisdiction to review this
judgment by Writ of Certiorari is conferred on this Court
by Title 28, United States Code, Section 1257(3).
QUESTION PRESENTED
Whether the Colorado Appeals Court denied Petition-
ers’ rights to due process as guaranteed by the Fifth and
Fourteenth Amendments to the United States Constitution
by considering and basing their decisions on evidence
erroneously included in the record on appeal after Petition-
ers sought to correct and modify the record to conform with
the evidence at trial.
CONSTITUTIONAL PROVISIONS INVOLVED
Amendment V
No person shall be held to answer for a capital or other-
wise infamous crime, unless on a presentment or indictment
of a grand jury, except in cases arising in the land or naval
forces, or in the militia, when in actual services, in time
-
of war or public danger; nor shall any person be subject for
the same offense to be twice put in jeapardy of life or limb;
nor shall be compelled, in any criminal case, to be a witness
against himself; nor be deprived of life, liberty or property,
without due process of law; nor shall private property be
taken for public use without just compensation.
Amendment XIV
§1. Citizenship defined—privileges of citizens—All
persons born or naturalized in the United States, and sub-
ject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside. No state shall
make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty or property
without due process of law, nor deny to any person within
its jurisdiction the equal protection of the laws.
STATEMENT OF THE CASE
Petitioners herein are stockholders in the Respondent
corporation. In September, 1974, Respondent Corporation
entered into an agreement with a company known as Day
Mines, Inc. whereby the working interest in the mining
properties held by Respondent Corporation would be leased
to Day Mines for a term of twenty-five years. In or about
January, 1975, the Petitioners, as shareholders of Respond-
ent Corporation, were sent proxy materials notifying them
of a special meeting called for the purpose of approving
the agreement with Day Mines. The proxy material con-
tained information concerning the rights of disesnting
shareholders, and state, inter alia, as follows:
i. |
If within such 30 day period such dissenting stock-
holders and Leadville fail to agree upon a fair value
of shares, such dissenting stockhoider may, within 60
days after the expiration of the 30 day period, file a
petition in any court of competent jurisdiction in Lake
County, Colorado, asking for a finding in determina-
tion of the fair market value of his shares.
At the special meeting held on February 7, 1975, the
shareholders of Respondent Corporation ratified the Day
Mines lease agreement. Petitioners were the only share-
holders to dissent.
Petitioners, as dissenting shareholders, then proceeded
to follow the procedure set forth by the Respondent Cor-
poration in its proxy materials with respect to the right of
dissenting shareholders. Accordingly, Petitioners instituted
a statutory stock appraisal action on May 5, 1975, in the
District Court in and for Lake County in reliance upon
such information and in accordance with Section 7-5-113,
Colorado Revised Statutes, 1973, (Appendix, p. _), which
specifies that venue for such action is to be in a court of
competent jurisdiction in the county where the registered
office of the corporation is located on the date the action
is commenced.
After commencing this statutory appraisal action, Pe-
titioners learned that Respondent Corporation’s registered
agent, who maintained his registered office in Lake County,
had resigned from such position in or about December, 1974.
It was also learned that Respondent Corporation did not
appoint a new registered agent until May 12, 1975, whose
registered office was established in Jefferson County, Colo-
rado. Neither Respondent Corporation nor the former reg-
istered agent notified the Secretary of State of Colorado
of the registered agent’s resignation although at the time
5
the proxy materials were sent to the shareholders the Re-
spondent knew that it had no registered agent or office in
Lake County.
Promptly pon learning that Leadville Corporation
had no registered office in Lake County on May 5, 1975,
Petitioners moved to dismiss the statutory appraisal action
on the ground that the Lake County District Court lacked
jurisdiction over the subject matter of such action under
Section 7-5-113 of the Colorado Revised Statutes, 1973, or,
in the alternative for change of venue to the proper county
as designated in the appraisal statute. The trial court denied
these motions.
At trial of this matter held on April 20, 1978, discussion
was had concerning the Petitioner’s Motion to Dismiss and
counsel for Petitioners tendered to the court a Certificate
from the Colorado Secretary of State reflecting the status
of Respondent Corporation’s registered office and agent.
From the following exchange, it is apparent that such
exhibit was, however, never properly entered into evidence
before the Court:
MR. KLEIN: Your Honor, in regard to that motion
to dismiss on the jurisdictional ground, I did point out
in chambers that there was—I believe I did—a certifi-
cate of the Secretary of the State of Colorado which
relates to whether or not the Leadville Corporation
had a registered agent in Lake County on the particular
date, and I would like to at least supplement the
Court’s file with that certificate.
THE COURT: The Court has one in the file
already, as of the December date. If you want to file
it again, I guess you can. One more piece of paper in
this file won’t make any difference. I am satisfied that
in the course of reading the file last evening that I did
find a certificate of standing from the Secretary of
State.
MR. KLEIN: I have a different—
THE COURT: What these are are statements of
change of registered office.
MR. KLEIN: The certificate I have, Your Honor,
is dated December 27, 1977. May I tender that to the
Court at this time and the record should reflect I have
given a copy of that to counsel
THE COURT: Any objection, Mr. Cosgriff?
MS. COSGRIFF: Your Honor, I haven’t had an
opportunity to review it and I would like to reserve
any objection I have until I have had an opportunity
to look at it, particularly in the light of the previous
statements that are already in the file.
THE COURT: You may reserve your right to ob-
ject and we'll take that up after you have had a chance
to review it.
No further action was taken on the objections of Mr. Cos-
griff nor the admission of the certificate into evidence.
On May 2, 1978, the trial court entered its judgment
valuing the Petitioners’ shares in Resposdent Corporation
at $16,173.10 together with interest thereon from February
6, 1975. Petitioners timely appealed such judgment to the
Colorado Court of Appeals challenging the trial court’s
subject matter jurisdiction over such action on the basis
of the venue jurisdictional provisions of Section 7-5-113,
Colorado Revised Statutes, 1973.
3
On or about September 28, 1978, the Clerk of the Lake
County District Court certified and transmitted the record
to the Colorado Court of Appeals. After conclusion of
pleading by the parties, the Court of Appeals announced
its judgment on December 28, 1979, affirming the trial
court and finding that the Lake County District Court
properly asserted subject matter jurisdiction over the
action. (Appendix, p. 1). It is clear from the opinion of
the Court of Appeals that its decision relied on the Certifi-
cate from the Colorado Secretary of State dated December
27, 1977.
Petitioners retained new counsel who entered his ap-
pearance on January 25, 1980 and simultaneously petitioned
the court for an order enlarging the time in which to file
a Petition for Rehearing, which enlargement of time was
granted. Such Petition for Rehearing was timely filed by
Petitioners’ new counsel but denied by the Court .f Ap-
peals.
From the date of his entry of appearance into the case,
Petitioners’ new counsel conducted an extensive review
and reconstruction of the action from the date of its com-
mencement. Due to the volume of the pleadings in the
trial court, geographical distance to the trial court and the
unwillingness of prior counsel to cooperate and assist in
such efforts, counsel did not discover certain errors and
omissions in the record on appeal until March, 1980. Im-
mediately upon such discovery, counsel for Petitioners
filed a Motion for Correction and Modification of the
Record on March 24, 1980 pursuant to Rule 10(e) of the
Colorado Appellate Rules.
Petitioners’ Motion for Correction and Modification of
the Record (Appendix, p. 13) specifically sought exclusion
of the Certificate of the Secretary of State dated December
*%
27, 1977 on the grounds that such exhibit was erroneously
included in the record as an exhibit attached to Petitioners’
Motion to Dismiss. Petitioners further alleged that such
error by the Clerk was substantially detrimental to their
cause inasmuch as the Court relied on such certificate in
finding that subject matter jurisdiction properly lay in the
Lake County District Court. Petitioners further sought
modification of the record to include certain documents
erroneously and mistakenly omitted by prior counsel. Such
Motion was denied by the Court of Appeals on March 26,
1980 (Appendix, p. 22).
Petitioners sought review of the Court of Appeals
judgment and denial of their Motion for Correction and
Modification of the Record by way of a Petition for Writ
of Certiorari filed with the Colorado Supreme Court on
March 24, 1980 (Appendix, p. 24). Such Petition was de-
nied on May 19, 1980 (Appendix, p. 39). Thereafter, Pe-
titioners requested an extension of time from this court
to file their Petition for Writ of Certiorari, which ex-
tension was granted to and including September 15, 1980.
REASONS FOR GRANTING OF THE WRIT
PETITIONERS BELIEVE THAT THE EFFECT OF THE
COLORADO APPELLATE COURTS’ RULINGS RE-
SULTS IN A DENIAL OF DUE PROCESS TO THEM IN
THAT THOSE COURTS CONSIDERED A DOCUMENT
WHICH WAS NEVER PROPERLY ADMITTED INTO
EVIDENCE IN THE COURSE OF THE TRIAL PROCEED-
ING.
Petitioners believe that a combination of factors that
occurred throughout the trial and appellate procedure has
resulted in a denial of due process in that a document that
was never properly admitted into evidence during the trial
procedure was made a part of the record for purposes of
appeal. This is particularly disturbing in light of the fact
that the document in question, never properly before the
trial court, but subsequently considered on appeal, was
crucial to the determination by the Appellate Courts that
the trial court properly exercised its subject matter juris-
diction over the case.
Petitioners believe that they did all that was within
their power immediately upon discovering the error to
bring the matter to the attention of the appellate court so
that a redetermination could have been made upon the
evidence properly before the court, without consideration
of the document never properly admitted into evidence.
The appellate courts denied these requests to modify
and correct the record and to exclude from consideration
the document never properly admitted into evidence, as
a result of which, Petitioners believe that their rights to
due process guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution have been
denied.
The Petitioners believe that this precise issue has not
been squarely addressed by this Court. In view of the
novelty of the question raised and the effect it has upon
the due process issue raised herein, the Petitioners believe
that this matter is an appropriate one for this Court to
grant certiorari.
The issue raised herein has only been peripherally con-
sidered by various federal circuit courts. Those courts in
construing Rule 10(e) of the Federal Rules of Appellate
Procedure, which Rule is identical to Rule 10(e) of the
Colorado Appellate Rules pursuant to which the Colorado
Courts denied Petitioners’ Motion to Correct and Modify
> |
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the Record, have stated that the purpose of Rule 10(e) is
to allow an appellate court to conform the record on appeal
to what happened in the trial court, not to what did not.
and that it does not give the court the authority to admit
on appeal any document whic* vas not made a part of the
record in the trial court. Kellogg v. McBee, 452 F.2d 134,
137 (7th Cir. 1971); United States v. Smith, 493 F.2d 906
(5th Cir. 1974); Borden, Inc. v. Federal Trade Commission,
495 F.2d 785 (7th Cir. 1974). These cases do not, however,
require as a matter of due process that such correction and
modification of the record be made where a document is
included in the record on appeal by mistake or inadvertence
nor do they address the obvious denial of due process where
such correction and modification has been denied and
judgment entered solely on the basis of the improper evi-
dence.
Here the Colorado Courts relied solely on the Certifi-
cate of the Colorado Secretary of State dated December
27, 1977 relating to the status of Respondent Corporation's
registered agent and office in holding that subject matter
jurisdiction properly lay in the trial court. That the Courts
failed to consider other evidence properly before the Court
and included in the record on appeal is demonstrative of
the crucial importance of the correction and modification
of the recora as so sought, and evidence of the substantial
denial of Petitioners’ due process rights by the denial of
their Motion for Correction and Modification of the Record.
11
CONCLUSION
For the foregoing reasons it is respectifully submitted
that this petition for a writ of certiorari should be granted.
Respectfully submitted,
Arthur M. Schwartz
ARTHUR M. SCHWARTZ, P.C.
1650 Market Street |
The Market Center
Denver, Colorado 80202
Attorney for Petitioners
33
|
1
APPENDIX
EXHIBIT A
COLORADO COURT OF APPEALS
No. 78-714
CHARLES W. NORTON and RUBY
W. NORTON; CHARLES W. and
RUBY W. NORTON, INC., an Iowa
corporation; INVESTMENT SE-
CURITIES COMPANY, an Iowa
corporation; WM. B. NORTON,
individually and as Custodian for
BRADLEY L. NORTON; FLOR-
ENCE N. BATES and LESLIE W.
BATES; LUCILLE YEDLIK and
EDWIN G. YEDLIK; CHARLES
WESTLEY NORTON and MACINE
M. NORTON; CARL J. MEALY and
ALICE N. MEALY; HAROLD D.
NORTON and BRENDA S. NOR-
TON; MIRIAM N. BAUMANN and
ROBERT W. BAUMANN,
Plaintiffs-Appellants,
Vv.
LEADVILLE CORPORATION, a
Colorado corporation,
Defendant-Appellee.
i i a
) Not Selected For
) Publication Not
) To Be Cited As
) Precedent In Any
), Colorado Court.
Appeal from the District Court of Lake County
Honorable William L. Jones, Judge
DIVISION III
Opinion by JUDGE KELLY JUDGMENT AFFIRMED
Enoch, C.J., and Berman, J., concur
Gorsuch, Kirgis, Campbell, Walker & Grover
John S. Pfeiffer
Stephen- Klein
Denver, Colordao
Attorneys for Plaintiffs-Appellants
Cosgriff, Dunn and French
Peter Cosgriff
Leadville, Colorado
Keller, McSwain, Wing & Maxfield
D. Elizabeth Wills
Denver, Colorado
Attorneys for Defendant-Appellee
The plaintiffs appeal from the judgment of the trial
court fixing the fair value of their stock in the defendant
corporation at 10¢ per share. Their sole argument here is
that the trial court was without subject matter jurisdiction.
This action was commenced by the filing of a complaint
in Lake County, Colorado, on May 5, 1975. The plaintiffs
moved to dismiss, or alternatively for change of venue,
asserting that the trial court lacked subject matter jurisdic-
tion because the registered office of the corporation was in
Denver County rather than in Lake County.
We agree with the plaintiffs that §7-5-113, C.R.S. 1973,
vests exclusive subject matter jurisdiction over a statutory
appraisal action in the county in which the corporation’s
registered office is located. See Barber v. People, 127 Colo.
90, 254 P.2d 431 (1953). The record reflects, however, that
at the time of the commencement of this action, the regis-
tered office of the corporation was in Lake County.
The statute in effect at the time the action was com-
menced provided that a change of address of the registered
office of a corporation became effective when it was filed
by the secretary of state. Section 7-3-111 (4), C.R.S. 1973.
Here, the record shows that the secretary of state recorded
the change of the registered office to Denver County on
May 12, 1975, seven days after the commencement of this
action. Consequently, subject matter jurisdiction properly
lay in Lake, not Denver County.
Plaintiffs’ asserted failure to file a timely motion for
new trial is immaterial here since subject matter jurisdic-
tion may be raised at any time. Peaker v. Southeastern
Colorado Water Conservancy District, 174 Colo. 210, 483
P.2d 232 (1971).
Judgment affirmed.
CHIEF JUDGE ENOCH and JUDGE BERMAN concur.
EXHIBIT B
COLORADO COURT OF APPEALS
No, 78-714
CHARLES W. NORTON and RUBY
W. NORTON; CHARLES W. and
RUBY W. NORTON, INC., an Iowa
corporation; INVESTMENTS SEC-
URITIES COMPANY, an_ Iowa
corporation; Wiliam B. NORTON,
Individually and as Custodian for
BRADLEY L. NORTON; FLOR-
ENCE N. BATES and LESLIE W.
BATES; LUCILLE YEDLIK and
EDWIN G. YEDLIK; CHARLES
WESTLEY NORTON and MACINE
M. NORTON; CARL J. MEALY and
ALICE N. MEALY; HAROLD D.
NORTON and BRENDA S. NOR-
TON; MIRIAM N. BAUMANN and
ROBERT W. BAUMANN,
Plaintiffs-Appellants,
V.
LEADVILLE CORPORATION, a
Colorado corporation,
Defendant-Appellee.
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Petition For
Rehearing
Appeal from the District Court of Lake County
Honorable William L. Jones, Judge
>
DIVISION III
Opinion by JUDGE KELLY
Enoch, C.J., and Berman, J., concur
John C. Schaefer, Esq.
Supreme Court Registration No. 5072
220 Steele Park
50 South Steele Street
Denver, Colorado 80209
Telephone: 399-4633
Attorney for Plaintiffs-Appellants
ARGUMENT
COME NOW the above-named Plaintiffs-Appellants,
by and through their counsel of record, and, pursuant to
Rule 40 of the Colorado Appellate Rules they do hereby
respectfully petition the Colorado Court of Appeals for a
rehearing of the within matter as follows:
The Plaintiffs-Appellants respectfully submit that the
Court has overlooked or misapprehended certain protions
of the record in affirming the trial court’s finding of fact
that the registered office of Defendant-Appellee corporation
was in Lake County as of the date of commencement of
the action. While the Court properly considered the Secre-
tary of State’s Certificate dated December 27, 1977 indicat-
ing a change of the registered office to Denver County on
May 12, 1975, the Plaintiffs-Appellants argue that such
document should not be and is not determinative of ulti-
mate factual issue, especially when other portions of the
record controvert the information contained therein.
Specifically, the Court’s attention is drawn toDefen-
dant’s Exhibit 2, the Agreement with Day Mines dated
September 12, 1974, wherein the Defendant-Appellee’s
Registered Agent, Rudie Schaffer, executed same in his
capacity as Secretary. The cover sheet of Defendant's Ex-
hibit 3, dated January 6, 1975, however, designates Mr.
Robert Knecht as “Secretary”. Further, on Page 10 of
Detendant’s Exhibit 3, the last paragraph under the head-
ing of “Business and Properties of Leadville’, “General”
reads as follows:
‘The offices of Leadville were located in Leadville,
Colorado, P.O. Box 960. Its present offices are located
at 1677 Wadsworth Blvd., Lakewood, Colorado 80215
and its telephone number is (303) 237-1395. (Empha-
sis added. )
An identical statement concerning the change of
(registered) offices of the Defendant-Appellee to Lake-
wood, Colorado is set forth on Page -l- of Defendant’s
Exhibit 4 found at the second paragraph of Paragraph (a)
of “Item 1. Business”. Defendant’s Exhibit 4, the Securities
and Exchange Commission Annual Report, Form 10-K, is
for the fiscal year ending December 31, 1974. Further.
found under Item 12 of Defendant’s Exhibit 4 entitled
“Directors of the Registrant” is the name of Robert Knecht
who is listed as Vice-President, Secretary, and Treasurer
“since 1974”. (Emphasis added. The itemizations of officers
of the Defendant-Appellee in both Defendant’s Exhibits
3 and 4 do not contain the name of Rudie Schaffer.
It is respectfully asserted that the above-quoted matters
of fact contained within the record clearly support the
Plaintiffs-Appellants’ position that the nominal registered
agent, Rudie Schaffer, was, in fact, replaced as Secretary
of the Defendant-Appellee prior to December 31, 1974,
that Rudie Schaffer no longer acted as an officer of the
Defendant-Appellee after December 31, 1974 and that,
importantly, the office of the Defendant-Appellee was
changed from a post office box in Lake County, Colorado
to 1677 Wadsworth Boulevard, Denver, Colorado on or
before December 31, 1974. Likewise established is the fact
that the Defendant-Appellee properly informed the super-
vising agency of the United States government, its share-
holders, and the general public of Mr. Schaffer’s disassoci-
ation with the Defendant-Appelle and Mr. Knecht’s assump-
tion of his duties no later than January 6, 1975. The De-
fendant-Appellee, however, conveniently failed to notify
the Secretary of State of the change of registered “agent
and registered office until May 12, 1975, one hundred
twenty-four days after advising its shareholders and one
week after the expiration of the deadline for the filing of
the within action.
It is well established that courts have generally
estopped corporations from denying jurisdiction on the
basis of service of process on persons alleged by a cor-
poration not to be an agent of the corporation authorized
to receive service when the corporation denying jurisdiction
has failed to make timely and proper disclosure or filings
relating to the designation of persons authorized to receive
process. Cf. Kraus v. Treasure Belt Mining Co., 408 P2nd
151 (Mont., 1961); Hamilton v. Lionhead Skilift, Inc., 363
P2nd 716 (Mont., 1961); Oro Navigation Co. v. Superior
Court, 187 P2nd 444 (Calif., App., 1948); Anderson v. U.S.,
220 F. Supp. 769 (e.d. Penn., 1963); and Royal Business
Funds Corp. v. South Eastern Development Corp., 323 S.E.
2nd 215 (N.C. App. 1977). Likewise, it is argued that the
sf Defendant-Appellee herein should be estopped to deny
the obvious change of registered office and registered agent
prior to December 31, 1974 in its continuing assertion that
subject matter jurisdiction lies in Lake County because its
offices were located in Leadville on May 5, 1975. Equity
should not permit the Defendant-Appellee to profit from
its calculated tardiness in notifying the Secretary of State
of Colorado of the appointment of Mr. Knecht as its regis-
tered agent and the simultaneous changing of its registered
office to 1677 Wadsworth Boulevard, Denver, Colorado
80215, especially when the record contains numerous ad-
missions in Defendant-Appellee’s own exhibits that the
change of office and agent occurred prior to December 31,
1974.
The Plaintiffs-Appellants also respectfully assert that
the Court has misapprehended the applicable statutory
section. Section 7-3-111 (4) C.R.S. 1973 pertains to the
procedure which may be followed by a registered agent
who changes his business address. The facts disclosed from
the record indicate that the registered agent, Rudie
Schaffer, did not change his business address, but, rather,
that said registered agent resigned prior to December 31,
1974. Accordingly, Section 7-3-111 C.R.S. 1973 applies.
The Court’s attention is respectfully drawn to the first
line of the said sub-Section (3) where the legislature uti-
lized the permissive word “may rather than the mandatory
word “shall”. The use of such auxiliary verb, it is argued,
implies that the Court may recognize other methods of
resgination of a registered agent. Accordingly, the Secretary
of State’s Certificate of December 27, 1977 is not determin-
ative of the identity of the registered agent or the location
of the registered office. Rather, it is but one indication which
the Court may examine to determine whether or not a
resignation has occurred, who the actual registered agent is,
or where the actual place of the registered office may be
as of any particular date. The Secretary of State’s records
being, in essence, “controlled” by the actions of the De-
fendant-Appellee, the Court is urged to minimize the factual
statements therein contained and, instead, rely for its
factual determination upon Defendant’s Exhibits 3 and 4
wherein Mr. Schaffer’s name and address are conspicously
[sic] absent.
In the event that the Court declines to exercise its
fact-finding prerogative with regard to the portions of the
record quoted above, then it is argued that the discrepancies
between the quoted portion of Defendant’s Exhibits 3 and 4
and the Secretary of State’s Certificate of December 27,
1977 demonstrate an unresolved conflict of evidence requir-
ing the remanding of the case to the trial court for the
purpose of receiving additional evidence and entering its
finding of fact concerning the actual registered office as of
May 5, 1975. During such further proceedings, the Plaintiffs-
Appellants would be prepared to offer further proof con-
cerning the resignation of Rudie Schaffer as Secretary and
registered agent of the Defendent-Appellee prior to Decem-
ber 31, 1974, as to the assumption of the duties of secretary,
treasurer, vice-president and registered agent by Mr. Robert
Knecht prior to December 31, 1974 and the consequent
change of registered office of the Defendant-Appellee from
Lake County to 1677 Wadsworth Boulevard, Denver, Colo-
rado 80215 prior to December 31, 1974. Upon such remand-
ing, the Plaintiffs-Appellants also offer to introduce com-
petent evidence to establish that Rudie Schaffer, on May
5, 1975, had exited permanently from the State of Colorado
and had established a permanent residence and office within
the State of Illinois. Under those circumstances, pursuant
to Section 7-3-112 (2) C.R.S. 1973, the Secretary of State
would then be properly regarded as an agent for the De-
fendant-Appellee and the office of the Secretary of State
within the City and County of Denver would properly be
regarded as Defendant-Appellee’s office.
Because the actual location of the office of the Defen-
dant-Appellee is crucial to determine the threshold question
of subject matter jurisdiction, the Court is respectfully
10
requested to re-examine Defendant’s Exhibits 2, 3, and
4 within the record and to balance the admissions
contained therein against the Secretary of State’s Certificate
of December 27, 1977. The Court is urged to consider such
admissions determinative of the factual question of the
location of the office of the Defendant-Appellee on May
5, 1975, or, in the alternative, to issue its Mandate directing
the trial judge to hold a hearing and receive all available
evidence in order that a proper factual determination can
be made. |
DATED this 11th day of February, 1980.
John C. Schaefer, Esq.
Supreme Court Reg. No. 5072
220 Steele Park (
50 South Steele Street |
Denver, Colorado 80209
Telephone 399-4633
Attorney for Plaintiffs-Appellants
CERTIFICATE OF MAILING
I hereby certify that on this 11th day of February,
1980, a true and correct copy of the foregoing Petition for
Rehearing was served upon counsel for all parties by plac-
ing same in the United States mails, first class, postage
prepaid, and properly addressed to:
Peter Cosgriff, Esq.
Cosgriff, Dunn, and French
P.O. Box 11
Leadville, CO 80461
Keller, McSwain, Wing and Maxfield
2570 First of Denver Plaza Building
633-17th Street
Denver, CO 80202
Phylis J. Morgan—Facsimile
11
EXHIBIT C
IN THE COURT OF APPEALS OF THE
STATE OF COLURADO
No. 78-714
CHARLES W. NORTON Bosca ort
W. NORTON; CHARL . and
RUBY W. NORTON, INC., an Iowa
corporation; INVESTMENTS SEC-
URITIES COMPANY, an_ Iowa
corporation; William B. NORTON,
Individually and as Custodian for
BRADLEY L. NORTON; FLOR-
ENCE N. BATES & LESLIE LU-
CILLE YEDLIK and EDWIN G.
YEDLIK; CHARLES WESLEY
NORTON and MACINE M. NOR-
TON; CARL J. MEALY and ALICE
N. MEALY; HAROLD D. NORTON
and BRENDA S. NORTON; MIRIAN
N. BAUMANN and ROBERT W.
BAUMANN
VS.
LEADVILLE CORPORATION, a
Colorado corporation,
y
)
)
)
)
)
)
)
)
)
)
. ORDER
)
)
)
)
)
)
)
)
)
Defendants-Apellees. _ )
)
Upon consideration of the Petition for Rehearing filed
by the Appellant herein, said Petition is hereby DENIED.
Unless otherwise ordered MANDATE will issue March 6,
12
1980. BY THE COURT, JUDGE KELLY, ENOCH, C.J.
AND BERMAN, Jr.
Date February 28, 1980.
If certiorari to the Supreme Court is planned and a
stay of issuance of mandate desired, petition for such stay
must be filed in the Court of Appeals prior to the above
date of issue.
f
13
EXHIBIT D
COLORADO COURT OF APPEALS
No. 78-174
CHARLES W. NORTON and RUBY )
W. NORTON; CHARLES W. and )
RUBY W. NORTON, INC., an Iowa )
corporation; INVESTMENTS SEC- )
URITIES COMPANY, an_ Iowa )
corporation; William B. NORTON, )
Individually and as Custodian for )
BRADLEY L. NORTON; FLOR- )
ENCE N. BATES and LESLIE W. )
BATES; LUCILLE YEDLIK and )
EDWIN G. YEDLIK; CHARLES )
WESTLEY NORTON and MACINE ) Motion For
M. NOR'TON; CARL J. MEALY and ) Correction and
ALICE N. MEALY; HAROLD D. ) Modifciation Of
NORTON and BRENDA S. NOR- ) __ The Record
TON; MIRIAM N. BAUMANN and )
ROBERT W. BAUMANN, )
)
)
)
)
)
)
)
)
)
Plaintiffs-Appellants,
vs.
LEADVILLE CORPORATION, a
Colorado Corporation,
Defendant-Appellee..
COME NOW the Plaintiffs-Appellnats above-named,
by and through their counsel of record, John C. Schaefer,
Esq., and pursuant to Rule 10 (e) of the Colorado Appel-
14
late Rules, they do hereby respectfully move the Colorado
Court of Appeals to direct the Lake County District Court
to correct an error in the record heretofore certified to the
Colorado Court of Appeals by: the clerk of the Lake County
District Court on the 28th of September, 1978 and to per-
mit the supplementation of the record thusly corrected and
transmitted by the inclusion of certain additional pleadings
and documents as hereinafter set forth; and, as grounds
and reasons therefor, the Plaintiffs-Appellants would re-
spectfully show unto the Court as follows:
1. That, on or about September 28, 1978, Ms. Margorie
M. Schlaepfer, Clerk of the District Court of Lake County,
Fifth Judicial District, certified and transmitted the record
in the instant case.
2. That Item No. 3, so certified and transmitted to this
Court, was the Plaintiff’s Motion to Dismiss or in the Alter-
native For Change of Venue, with Exhibits “A” and “B”
attached.
3. That paragraph 2 on page 3 of such pleading (Folio
22) clearly and unequivocally refers to Exhibit “B” as
correspondence concerning the individual plaintiff Charles
W. Norton, from his physician.
4. That Exhibit “B” as attached to such pleading by
the Clerk of District Court is not a letter from the individual
plaintiff's physician; but, rather, a certificate from the
office of the Secretary of State of the State of Colorado
dated December 27, 1977.
5. That a physical inventory of the file contents of the
Lake County District Court’s records pertaining to the
instant matter conducted March 20, 1980 by Plaintiffs-
Appellants’ counsel revealed the existence of plaintiff's
15
physician’s letter within such record; and, likewise, reveals
the existence of the original Secretary of State’s certificate
elsewhere within the records but, not adjacent to nor per-
tinent to the Plaintiffs’ Motion to Dismiss or in the Alter-
native for Change of Venue.
6. That the Plaintiffs-Appellants respectfully assert
that the purported Exhibit “B” was attached by the Clerk
of the District Court to Plaintiffs’ Motion to Dismiss or in
the Alternative for Change of Venue in error; and, that
the true Exhibit “B’’ was omitted from the record by error
or accident.
7. That the Plaintiffs-Appellants respectfully assert
that such error and omission by the Clerk of the Lake
County District Court was substantially detrimental to their
cause inasmuch as this court relied on the purported Exhibit
“B” in finding that the subject matter jurisdiction lay in
Lake, not in Denver County.
8. That, further, the Plaintiffs-Appellants respectfully
submit that, through no fault of the Clerk of the Lake
County District Court, several documents, pleadings and
exhibits were omitted from the record as heretofore certi-
fied to this Court by the inadvertence, error, or accident
of the Plaintiffs-Appellants’ prior counsel of record.
9. Specifically, and of crucial importance and materi-
ality to the Plaintiffs-Appellants argument are STATE-
MENT OF CHANGE OF REGISTERED OFFICE OR
REGISTERED AGENT, OR BOTH, OF LEADVILLE
CORPORATION, Defendant’s Exhibit No. 2 in the Decem-
ber 20, 1977 hearing on all motions conducted before the
Trial Court, as well as the Affidavit of Service of Ramona
Gutheinz filed with the Tria) Court on May 19, 1975, both
of which are attached hereto.
16
10. Defendant’s Exhibit No. 2 clearly demonstrates Mr.
Robert Knecht’s assumption of the office of registered
agent of the Defendant-Appellee as of April 24, 1975,
together with the change of the registerd offic of the
Defendant-Appellee to 1677 Wadsworth, Lakewood, Colo-
rado (80215) as of April 24, 1975.
11. The Atiidavit of Service of Process filed with the
Court on May 19, 1975, the only affidavit of service of
process for Plaintiffs’ Complaint contained within the
Court’s files, clearly demonstrates that service of process
on Mr. Knecht was subsequent to his execution of Defen-
dant’s Exhibit No. 2.
12. While not designated as part “Record” by Plain-
tiffs-Appellants’ prior counsel, the crucial materiality of
these two documents would seem obvious; and, the inclu-
sion of same in the record is absolutely necessary as further
support of the Plaintiffs-Appellants’ position that Mr.
Knecht had replaced Mr. Schaffer well prior to the com-
mencement of the action and that the registered office of
the Defendant-Appellee had been moved from Lake County
to Jefferson County well prior to the commencemnt of the
action and prior to service of process.
13. The Plaintiffs-Appellants additionally and respect-
fully urge the Court of Appeals to correct the omission of
the following items from the record due to the mistake,
inadvertence or error of Plaintiffs-Appellants’ prior coun-
sel
(A) Plaintiffs’ Motion to Dismiss filed December 1,
1976; and
(B) Plaintiffs’ Brief in Support of Motion to Dismiss
filed December 23, 1976; and
17
(C) Plaintiffs’ Amended Motion to Dismiss filed March
15, 1977; and
(D) Transcript of Court’s hearing on Plaintiffs’
Amended Motion to Dismiss held April 27, 1977; and
(HA, Plaintiffs’ Motion to Dismiss filed July 14, 1977;
and \
(F) Plaintiffs’ Memorandum Brief in Support of
Motion to Dismiss filed July 14, 1977; and
(G) Transcript of the Court’s hearing on Plaintiffs’
Motion to Continue and Motion to Dismiss held September
2, 1977; and
(H) Copy of the Deposition of Mr. Robert Knecht
taken April 18, 1978.
14. That the Defendant-Appellee has refused to enter
into a Stipulation regarding the correction and/or modifi-
cation of the record.
15. That the Plaintiffs-Apellants respectfully state that
they are entitled to correction of the District Court Clerk’s
error in attaching the wrong Exhibit “B” to the Plaintiffs’
Motion to Dismiss or in the Alternative for Change of
Venue as a matter of law.
16. That Plaintiffs-Appellants respectfully urge the
Court of Appeals to exercise its discretion in otherwise
permitting the inclusion of documents, pleadings and ex-
hibits heretofore omitted from the record as designated by
their prior counsel in order that substantial injustice may
be prevented.
WHEREFORE, for the grounds and reasons above-
18
stated, the Plaintiffs-Appellants respectfully pray for cor-
rection and supplementation of the record as hereinabove
set forth, and for such other and further relief as the Court
may deem appropriate in the premises.
John C. Schaefer—Facsimile
John C. Schaefer, Esq.
Attorney Reg. No. 5072
Attorney for Plaintiffs-Appellants
50 South Steele Street
Suite 220
Denver, Colorado 80209
Telephone: 399-4633
CERTIFICATE OF MAILING
I hereby certify that on the 24th day of March, 1980
a true nad correct copy of the foregoing Motion for Correc-
tion and Modification of the Record was served on counsel
for all parties by placing same in the United States mails,
first class, postage prepaid and properly addressed to:
Messrs. Peter Cosgriff, Esq. and
Timothy Berry, Esq.
Cosgriff, Dunn & French
P.O. Box 1
Leadville, Colorado 80461
Ms. D. Elizabeth Wills
Keller, McSwain, Wing & Maxfield
633 17th Street
Suite 2470
Denver, Colorado 80202
Katherine E. Raue—Facsimile
State of Colorado )
) ss
City & County of Denver )
19
RAMONA GUTHEINZ, the affiant, being sworn, says:
that affiant is over the age of eighteen years and is not a
party to this action; and that affiant has duly served the
within by * handing to and leaving with ROBERT A.
KNECHT, registered agent for LEADVILLE CORPORA-
TION, a true and correct copy of the within Summons,
along with a true and correct copy of Complaint attached
thereto, at 1677 Wadsworth Boulevard, City of Lakewood,
County of Jefferson, State of Colorado, May 8, 1975 at
9:03 A.M.
Ramona Gutheinz—Facsimile
Subscribed and sworn to before me this 8 day of May, 1975.
My Commission expires: July 12, 1975.
/s/underchipherable name
Notary Public
STATEMENT OF CHANGE OF REGISTERED OFFICE
OR REGISTERED AGENT, OR BOTH,
OF
LEADVILLE CORPORATION
To The Secretary of State
of the State of Colorado
Pursuant to the provisions of the Colorado Corporation
Act, the undersigned corporation, organized under the laws
of the State of Colorado submits the following statement
for the purpose of changing its registered office or its regis-
tered agent, or both, in the state of Colorado.
First: The name of the corporation is Leadville Corpor-
ation
Second: The address of its previous REGISTERED
OFFICE was P.O. Box 960, Leadville, Colorado
20
Third: The address to which its REGISTERED OFFICE
is to be changed is 1677 Wadsworth, Lakewood, Colorado
80215
FOURTH: The name of its previous REGISTERED
AGENT was Rudie Schaffer
Fifth: The name of its successor REGISTERED AGENT
is Robert Knecht
Sixth: The address of its registered office and the
address of the business office of its registered agent, as
changed, will be identical.
Seventh: The address of its place of business in Colo-
rado is 1677 Wadsworth, Lakewood, Colorado 80215
Dated: April 24, 1975
Leadville Corporation (Note 1)
By Robert A. Knecht (Note 2)
as vice president
STATE OF Colorado
County of Jefferson
Before me, ROBERT P. LATHAM, a Notary Public in
and for the said County and State, personaaly appeared
Robert A. Knecht who acknowledged before me that he is
the vice-president of Leadville Corporation, a Colorado
Corporation, that he signed the foregoing, and that the
statements contained therein are true.
In witness whereof I have hereunto set my hand and
seal his 30 day of April. A.D. 1975.
My commission expires June 6th, 1976
Robert P. Latham—Facsimile
21
NOTES: 1. Exact corporate name of corporation making
statement.
2. Signature and title of officer signing fo rthe
corporation—must be President or Vice-Presi-
dent.
Signature of Notary Public must be exactly as
shown on Notarial Seal, and must agree with
notarial commission.
22
EXHIBIT E
COLORADO COURT OF APPEALS
No. 78-714
CHARLES W. NORTON and RUBY )
W. NORTON; CHARLES W. and )
RUBY W. NORTON, INC., an Iowa _ )
corporation; INVESTMENTS SEC- )
URITIES COMPANY, an _ Iowa )
Corporation; WM. B. NORTON, )
individually nad as Custodian for )
BRADLEY L. NORTON; FLOR- )
ENCE N. BATES and LESLIE W. )
BATES; LUCILLE YEDLIK and )
EDWIN G. YEDLIK; CHARLES )
WESLEY NORTON and MACINE )
M. NORTON; CARL J. MEALY and _) ORDER
ALICE N. MEALY; HAROLD D. )
NORTON and BRENDA S. NOR- )
TON; MIRIAM N. BAUMANN and )
ROBERT W. BAUMAN, )
)
)
)
)
)
)
)
)
)
Plaintiffs-Appellants,
a
LEADVILLE CORPORATION, a
Colorado corporation,
Defendant-Apellee.
The court has considered the motion of plaintiffs-
appellants for correction and modification of the record,
and the response thereto, and has examined its file herein,
23
and, since it appears that the opinion in this case was an-
nounced December 28, 1979, and petition for rehearing was
denied on February 28, 1980, and that, therefore, the
motion to correct and modify the record in this case is not
timely,
IT IS ORDERED that the motion be and it is hereby
DENIED.
BY THE COURT: Kelly, J.
Enoch, C.J.
Berman, J.
Date: March 26, 1980
24
EXHIBIT F
IN THE SUPREME COURT
OF THE
STATE OF COLORADO
No. __
CHARLES W. NORTON and RUBY
W. NORTON; CHARLES W. and
RUBY W. NORTON, INC., an Iowa
corporation; INVESTMENTS SEC-
URITIES COMPANY, an_ Iowa
Corporation; WM. B. NORTON,
individually nad as Custodian for
BRADLEY L. NORTON; FLOR-
ENCE N. BATES and LESLIE W.
BATES; LUCILLE YEDLIK and
EDWIN G. YEDLIK; CHARLES
WESLEY NORTON and MACINE
M. NORTON; CARL J. MEALY and
ALICE N. MEALY; HAROLD D.
NORTON and BRENDA S. NOR-
TON; MIRIAM N. BAUMANN and
ROBERT W. BAUMAN,
Petitioners,
vs.
LEADVILLE CORPORATION, a
Colorado Corporation,
Respondent.
a el
Petition For Writ
Of Certiorari
No. 78-714
25
PETITION FOR WRIT OF
CERTIORARI
John C. Schaefer, Esq.
Supreme Court Reg. No. 5072
Attorney for Petitioners
50 South Steele Street
Suite 220
Denver, Colorado 80209
Telephone: 399-4633
26
IN THE SUPREME COURT
OF THE
STATE OF COLORADO
No.
CHARLES W. NORTON and RUBY )
NORTON: CHARLES W. and RUBY )
W NORTON, INC., An Iowa Corpor- _)
ation; INVESTMENT SECURITIES )
COMPANY, an Iowa Corporation; )
WM B. NORTON, individually andas_)
Custodian for BRADLEY L. NOR- )
TON; FLORENCE N. BATES and )
LESLIE W. BATES; LUCILLE YED- )
LIK and EDWIN G. YEDLICK; )
CHARLES WESTLEY NORTON and_ )
MAXINE M. NORTON; CARL J. ) a
MEALY and ALICE N. MEALY; ) _ Petition For
HAROLD D.NORTONandBRENDA ) Writ Of
S. NORTON; MIRIAM N. BAU- ) Certiorari
MANN and ROBERT W. BAU- )
MANN, )
)
)
)
)
)
)
)
)
)
Petitioners,
vs.
LEADVILLE CORPORATION, a
Colorado Corporation,
Respondent.
COME NOW the Petitioners above-named, by and
through their counsel of record, John C. Schaefer, Esq.,
and they do hereby respectfully petition the Supreme Court
.
27
for the State of Colorado to exercise its judicial discretion
and to issue its Writ of Certiorari in order that a review
of the Colorado Court of Appeals judgment may be had;
and, in support thereof, the Petitioners would respectfully
show unto the Supreme Court as follows:
1. The Petitioners seek review of the unofficial report
of the opinion and judgment of the Colorado Court of Ap-
peals entered December 28, 1979 in Action No. 78-714
affirming the Lake County District Court’s judgment en-
tered May 2, 1978 by the Honorable William Jones, Judge,
holding that subject matter jurisdiction over Petitioners’
statutory stock appraisal action properly lay in the Lake
County District Court; and, the Petitioners further seek
review of the order of the Court of Appeals entered on
March 26, 1980 in said Action denying Petitioners’ Motion
for Correction and Modification of the Record pursuant to
Rule 10(e) of the Colorado Appellate Rules.
2. That a true and correct copy of the Court of Appeals
judgment, together with a true and correct copy of Pe-
titioners’ Motion for Correction and Modification of the
Record and the Court of Appeals order denying same, and
a true and correct copy of C.R.S., 1973 Section 7-3-111(4)
is attached hereto in the Appendix, denominated Exhibits
“A”, “B”, “C”, and “D”, respectively.
3. That the Colorado Court of Appeals denied "the
Petitioners’ Motion for Rehearing by order dated February
28, 1980; and, that the Colorado Court of Appeals granted
Petitioners’ Motion for Stay of Issuance of Mandate, stay-
ing the issuance of Mandate through and including March
31, 1980, copies of which orders are attached hereto in the
Appendix, denominated Exhibits “E”, “F”, and “G”, re-
spectively.
4. That the questions presented for review are:
(A) Is the date of filing of the statement of Change of
Registered Office, Registered Agent, or Both by the Re-
spondent Corporation with the Secretary of State (May 12,
1975) conclusive as to the factual issue of the location of
the registered office of the Respondent Corporation on the
date of commencement of the action (May 5, 1975)?
(B) Did the Court of Appeals properly deny Petition-
ers’ Motion For Correction and Modification of the Record
seeking to strike from the Record an exhibit mistakenly
and erroneously included therein by the Clerk of the Lake
County District Court and which denial excluded crucial
evidence supporting the Petitioners’ claim that documen-
tary evidence and affidavits properly brought before the
trial court do not support the Court’s factual determination
that subject matter jurisdiction properly lay in the Lake
County District Court?
(C) In light of the facts and circumstances in evidence,
did the Court of Appeals properly fail to adopt Petitioners’
assertion that equity and justice require that the Respondent
Corporation be estopped from asserting subject matter
jurisdiction over Petitioners’ statutory stock appraisal
action in the Lake County District Court on the basis of
its calculated failure to file a Notice of Change of Regis-
tered Office, Registered Agent, or Both with the Secretary
of State until one week after the expiration of the time
within which Petitioners’ could initiate a statutory stock
appraisal action and long after such changes had, in fact,
been effectuated by Respondent Corporation as evidenced
by statements attributable to the Respondent in the Record
as certified by the Clerk of the District Court and as it
should be supplemented pursuant to Rule 10 (e) of the
Colorado Appellate Rules and Petitioners’ Motion there-
under?
29
(D) Did the Court of Appeals properly find that sub-
ject matter jurisdiction lay in the Lake County District
Court despite Petitioners’ claim of non-suit in their statu-
tory stock appraisal action and their repeated attempts to
dismiss same pursuant to Rule 41 of the Coloardo Rules
of Civil Procedure?
(E) Is the judgment of the Colorado Court of Appeals
void by virtue of the inclusion in the Record on review of
an erroneous exhibit and the Court of Appeals apparent
reliance thereon in its factual determination of the basic
issue?
5. This action was filed by the Petitioners in the Lake
County District Court on May 5, 1975, the last day per-
mitted under the statute for the commencement of a statu-
tory stock appraisal action. The Petitioners, aware that the
Respondent Corporation’s nominal resident agent, Rudie
Schaffer, had long since left the State of Colorado and re-
signed such position, effectuated service of process on his
replacement, Mr. Robert Knecht, in Lakewood, Colorado
no May 8, 1975. On that date, Mr. Knecht had already pre-
pared and signed his Statement of Change of Registered
Office, Registered Agent, or Both on April 24, 1975,
acknowledging his status as registered agent of tie Lead-
ville Corporation and further acknowledging the change
of such Corporation’s registered office from Lake County
to Jefferson County, although Mr. Knecht did not actually
file same with the Secretary of State until three weeks
later. There was no service of process on the Respondent
in Lake County.
There occurred no activity in the case after Respon-
dent’s Answer and Counterclaim (sic) was filed for nearly
eighteen months. Then, on December 1, 1976, the Petition-
30
ers withdrew their Notice of Election and Demand for
Payment for Shares and filed their first Motion to Dis-
miss. The Petitioners filed their second Motion to Dismiss
on March 15, 1977. Petitioners filed their third Motion to
Dismiss on July 14, 1977. The Petitioners filed their fourth
Motion to Dismiss on December 9, 1977. The Petitioners
fifth and final Motion to Dismiss was argued immediately
prior to trial. All Motions to Dismiss were denied and the
Court, after trial on April 20, 1978, entered its judgment
which is the subject of this appeal.
6. That there is no history of judicial interpretation
of C.R.S., 1973. Section 7-3-111(4) (Appendix Exhibit “D”’)
to date yielding direct precedent for the Court of Appeals’
interpretation of that statute that the date of actual filing
of a Statement of Change of Registered Office, Registered
Agent, or Both with the Secretary of State is dispositive
of the issue of where a corporation’s registered office is
located, in fact, for purposes of determining the District
Court’s subject matter jurisdiction over an action in which
the corporation is a party and where, as held correctly by
the Court of Appeals, jurisdiction is premised upon the
location of the corporation’s registered office, as of the date
of commencement of the action (May 5, 1975). Where facts
and circumstances known to the party denying such juri-
sdiction and admitted into evidence before the trial court
indicate that the corporation’s registered office is main-
tained at a place other than that so designated in its filings
with the Secretary of State, and where the corporation
relying on same to assert jurisdiction in an action repeat-
edly sought to be dismissed by Plaintiff shareholders in-
tentionally failed to make such filing with the Secretary
of State as would indicate the true location of its registered
office until after the expiration of the time limit within
which said shareholders could bring their action should
such corporation not be estopped from contesting the
Ye
_- |
31
change of registered office to Jefferson County which
occurred at least two weeks prior to the commencement
of the action?
7. Petitioners further urge that this Court inquire by
issuance of its Writ of Certiorari into the propriety of the
Court of Appeals’ denial of their Motion For Correction
and Modification of the Record herein where such correc-
tion and modification is necessary to avoid substantial in-
justice resulting from that Court’s obvious reliance on evi-
dence improperly and erroneously before it and from the
exclusion of other evidence crucial to the Petitioners’ case.
8. Additionally, Petitioners urge this Court to inquire
by issuance of its Writ of Certiorari into the equity and
justice of the Court of Appeals’ holding that subject matter
jurisdiction was proper in the Lake County District Court
where such jurisdiction was asserted by Respondent to
prosecute an action which was the exclusive statutory
remedy of the Petitioners’ claim of non-suit and repeated
attempts to dismiss such action pursuant to Rule 41 of the
Colorado Rules of Civil Procedure.
9. The Petitioners respectfully submit that the Court
of Appeals has overlooked and misapprehended certain
portions of the Record in affirming the trial court’s judge-
ment and finding that the registered office of the Respond-
ent Corporation was in Lake County as of the date of the
commencement of the action. Petitioners argue that the
Court of Appeals improperly considered the Certificate
of the Secretary of State, dated December 27, 1977, indi-
cating a change of registered office of the Leadville Cor-
poration from Lake County to Jefferson County on May
12, 1975, in that said Certificate was mistakenly and
erroneously included in the Record by the Clerk of the
Lake County District Court as Exhibit “B” to Item No. 3,
32
Plaintiffs’ Motion to Dismiss or in the Alternative for
Change of Venue, as is more fully set forth in Petitioners’
Motion For Correction and Modification of the Record (Ap-
pendix Exhibit “B’’). Petitioners argue that the Court of
Appeals’ reliance on such Certificate in holding that sub-
ject matter jurisdiction properly lay in the Lake County
District Court and its failure to consider other evidence in
the record as certified, and as corrected and modified pur-
suant to the Motion of the Petitioners under Rule 10(e)
of the Colorado Appellate Rules, is demonstrative of the
crucial importance of the correction and modification of
the record as so sought, and evidence of the substantial
inequity and injustice to the Petitioners of the Court of
Appeals’ denial of their Motion. Petitioners assert that, as
a matter of law, they are entitled to the correction and
deletion of the erroneously included exhibit, and that the
Court of Appeals’ reliance on same in their Judgment
renders same void.
Petitioners argue that, even if such Certificate was
properly included in the Record, such document is not, as
held by the Court of Appeals, determinative of the ultimate
issue of whether subject matter jurisdiction properly lay in
the Lake County District Court, especially when other por-
tions of the record controvert the information contained
therein.
Specifically, the Court’s attention is drawn to Defen-
dant’s Exhibit 2, the Agreement between Respondent Cor-
poration and Day Mines, dated September 12, 1974, wherein
the Respondent’s registered agent, Rudie Schaffer, executed
same in his capacity as Secretary. The cover sheet of said
agreement, Defendant’s Exhibit 3, dated January 6, 1975,
however, designates Mr. Robert Knecht as “Secretary”.
Further, on Page 10 of Defendant’s Exhibit 2, the last para-
graph under the heading of “Business and Properties of
33
Leadville, General” reads as follows:
The offices of Leadville were located in Leadville,
Colorado, P.O. Box 960. Its present offices are located
at 1677 Wadsworth Blvd., Lakewood, Colorado 80215
and its telephone number is (303) 237-1395. (Em-
phasis added)
An identical statement concerning the change of (reg-
istered) offices of the Respondent to Lakewood, Colorado
is set forth on Page 1 of Defendant’s Exhibit 4, found in
the second paragraph of Paragraph (a) of “Item 1. Busi-
ness.” Defendant’s Exhibit 4, the Securities and Exchange
Commission Annual Report, Form 10-K, is for the Re-
spondent Corporation’s fiscal year ending December 31,
1974. Further, found under Item 12 of Defendant’s Exhibit
4 entitled “Directors of the Registrant” is the name of
Robert Knecht listed as Vice President, Secretary and
Treasurer “since 1974”. (Emphasis added) The itemization
of the officers of the Respondent in both Defendant’s Ex-
hibit 3 and 4 do not contain the name of Rudie Schaffer.
Moreover, as is evidenced by the Certificate of Ser-
vice of Ramona Gutheinz, as sought to be included in the
Record on Appeal by Petitioners’ Motion for Correction
and Modification of the Record (P. 6, Appendix Exhibit
“B”), the only service of process in this action was had
on Robert Knecht, as registered agent of the Respondent
Corporation, at 1677 Wadsworth Boulevard, Lakewood,
Colorado (80215) on May 8, 1975, subsequent to his execu-
tion of Respondent’s Statement of Change of Regisivred
Office, Registered Agent, or Both (P. 7, Appendix Exhibit
“B”), clearly indicating Mr. Knecht’s assumption of the
office of registered agent of the Respondent Corporation
as of April 24, 1975, together with the change of the reg-
istered office of the Respondent Corporation to 1677 Wads-
34
worth Boulevard, Lakewood, Colorado (80215) as of April
24, 1975.
It is respectfully asserted that the above-quoted facts
contained within the Record as certified and as necessarily
corrected and modified clearly support the Petitioners’ po-
sition that the nominal registered agent, Rudie Schaffer,
was, in fact, replaced as Secretary of the Respondent prior
to December 31, 1974, that he no longer acted as registered
agent or an officer of the Respondent after Decembr 31,
1974 and that, importantly, th registered office of the Re-
spondent was changed from a post office box in Lake
County to 1677 Wadsworth Boulevard, Lakewood in
Jefferson County on or before December 31, 1974. Like-
wise established is the fact that the Respondent properly
informed the supervising agency of the United States gov-
ernment, its shareholders and the general public of Mr.
Schaffer’s disassociation with the Respondent and Mr.
Knecht’s assumption of his duties no later than January
6, 1975. Respondent, however, conveniently failed to notify
the Secretary of State of the change of registered agent and
office until May 12, 1975, one hundred twenty-four days
after advising its shareholders and one week after the
expiration of the deadline for Petitioners’ commencement
of the within action, and three weeks after Mr. Knecht had
prepared and signed the Statement of Change of Registered
Office, Registered Agent, or Both.
It is well established that courts have generally
estopped corporations from denying jurisdiction on the
basis of service of process on person alleged by the corpora-
tion not to be an agent of the corporation authorized to
receive process when the corporation denying jurisdiction
has failed to timely and properly disclose or file statements
relating to the designation of persons authorized to receive
process. Cf. Kraus v. Treasure Belt Mining Co., 408 P.2d
35
151 (Mont. 1961); Hamilton v. Lionhead Skilift, Inc., 363
P.2d 716 (Mont. 1961); Oro Navigation Co. v. Superior
Court, 187 P.2d 444 (Calif. App. 1948); Anderson v. U.S.,
220 F. Supp 769 (E.D. Penn. 1963); Royal Business Funds
Corp. v. South Eastern Development Corp., 323 S.E.2d
215 (N.C. App. 1977). Likewise, it is argued that Respond-
ent herein should be estopped to deny the obvious change
of registered office from Lake County to Jefferson County
and registered agent from Rudie Schaffer to Robert Knecht
prior to December 31, 1974, and certainly no later than
April 24, 1975, in its continuing assertion that subject mat-
ter jurisdiction lies in the Lake County District Court when-
the Respondent failed to file the required form with the
Secretary of State until May 12, 1975. Equity should not
permit the Respondent to profit from its calculated tardi-
ness in notifying the Secretary of State of the change of its
registered office and agent, especially when the record
contains numerous admissions in Respondent’s own exhibits
that the change of office and agent occurred prior to Decem-
ber 31, 1974, some five months prior to the institution of
this Action. Because the actual location of the registered
office is crucial to determination of the threshold question
of subject matter jurisdiction, the Court is respectfully
required to examine Defendant’s Exhibits 2, 3 and 4 and
the certificate of service of Ramona Gutheinz and Respond-
ent’s Statement of Change of Registered Office, Registered
Agent, or Both as sought to be included by Petitioners’
Motion for Correction and Modification of the Record, and
to balance the admissions contained therein against the
Certificate of the Secretary of State of December 27, 1977.
WHEREFORE, for the crucial and important reasons
above stated, the Petitioners request that the Court exercise
its sound and judicial discretion and issue its Writ of Cer-
tiorari.
36
DATED this 31st day of March, 1980.
Respectfully submitted,
John C. Schaefer, Esq.—Facsimile
Supreme Court Attorney Reg. No. 5072
Attorney for Petitioners
50 South Steele Street
Suite 220
Denver, Colorado 80209
Telephone: 399-4633
CERTIFICATE OF MAILING
I hereby certify that on the 24th day of March, 1980,
a true and correct copy of the foregoing Petition for Writ of
Certiorari together with a true copy of Mr. Schaefer’s Entry
of Appearance was served upon counsel for all parties by
placing same in the United States mails, first class, postage
pre-paid, and properly addressed to:
Mssrs. Peter Cosgriff and Timothy H. Berry
Cosgriff, Dunn & French
P.O. Box 11
Leadville, Colorado 80461
Ms. D. Elizabeth Will
Keller, McSwain, Wing & Maxfield
633 17th Street
Suite 2570
Denver, Colorado 80202
Katherine E. Raue—Facsimile
37
IN THE SUPREME COURT
OF THE
STATE OF COLORADO
No. 80-SC-91
CHARLES W. NORTON and RUBY )
W. NORTON; CHARLES W. and )
RUBY W. NORTON, INC., an Iowa _)
Corporation; INVESTMENT SECU- )
RITIES COMPANY, an Iowa Corpor- _ )
ation; WILLIAM B. NORTON, Indi- | )
vidually and as Custodian for BRAD- )
LEY L. NORTON; FLORENCE N. )
BATES and LESLIE W. BATES; LU- )
CILE YEDLIK and EDWIN G. YED- _)
LIK; CHARLES WESTLEY NOR- ) Amended
TON and MACINE M. NORTON, ) Certificate
CARL J. MEALY and ALICE N. ) Of Service
MEALY; HAROLD D. NORTON and _) Colorado
BRENDA S. NORTON, MIRIAM N. ) Court of Appeals
BAUMANN and ROBERT W. BAU-_) No. 78-714
MANN, )
)
)
)
)
)
)
)
)
)
Petitioners,
VS.
LEADVILLE CORPORATION, a
Colorado coryoration,
Respondent.
I hereby certify that on the 3lst day of March, 1980
a true and correct copy of the Petitioner’s Petition for Writ
of Certiorari together with a true and correct copy of John
38
C. Schaefer’s Entry of Appearance was served upon coun-
sel for all parties by placing same in the United States
mails, first class, postage prepaid, and properly addresesd
to:
Mssrs. Peter Cosgriff and Timothy H. Berry
Cosgriff, Dunn & French
P.O. Box 11
Leadville, Colorado 80461
Ms. D. Elizabeth Will
Keller, McSwain, Wing & Maxfield
633-17th Street
Suite 2570
Denver, Colorado 80202
Katherine E. Raue—Facsimile
39
EXHIBIT G
IN THE SUPREME COURT OF THE
STATE OF COLORADO
No. 80 SC 91
CHARLES W. NORTON AND RUBY )
RUBY W. NORTON; CHARLES W. )
AND RUBY W. NORTON, INC., an_ )
Iowa corporation; INVESTMENT )
SECURITIES COMPANY, an Iowa _ )
corporation; WM. B. NORTON, in- )
dividually and as Custodian for )
BRADLEY L. NORTON; FLOR- )
ENCE N. BATES AND LESLIE W. )
BATES, LUCILLE YEDLIK AND )
EDWIN G. YEDLIK; CHARLES ) Se
NORTON AND MACINE M. NorR- ) C&tiorari to the
TON; CARL J. MEALY AND ALICE_ ) ©°0orado Court of
N. MEALY; HAROLD D. NORTON ) = ‘PPeals
AND BRENDA S. NORTON; ) 18-714
MIRIAM N. BAUMANN AND )
ROBERT W. BAUMANN, )
Petitioners, )
)
)
)
)
)
)
)
VS.
LEADVILLE CORPORATION, a
Colorado corporation, .
Respondent.
ON PETITION FOR WRIT OF CERTIORARI to the
Court of Appeals.
40
After review of the record, the briefs and the opinion
of the Court of Appeals,
IT IS ORDERED by this court that said petition be,
and the same hereby is, denied.
Lohr, J. does not participate.
May 19, 1980. By the Supreme Court
Sitting En Banc
ce: John C. Schaefer
50 South Steele Street
Suite 220
Denver, CO 80209
Peter Cosgriff
Timothy H. Berry
P.O. Box 11
Leadville, CO 80461
D. Elizabeth Will
633 17th Street
Suite 2570
Denver, CO 80202
Mac V. Danford, Clerk
Coloardo Court of Appeals
41
EXHIBIT H
COLORADO REVISED STATUTE, 1973
7-5-113. Rights of dissenting shareholders upon sale,
exchange, or lease of assets not in the usual course of
business. (1) If a sale, exchange, or lease of the principal
part or all of the business, assets, property, or franchises
of a corporation not in the usual course of its business or
in connection with the dissolution and liquidation of the
corporation is authorized by a vote of the shareholders of
the corporation, any shareholder who has filed with the
corporation a written objection thereto prior to or at the
meeting of shareholders at which the sale, exchange, or
lease is authorized and who has not voted in favor thereof
may, within ten days after the date on which the vote was
taken, make written demand on the corporation for the
payment to him of the fair value of his shares as of the day
prior to the date on which the vote was taken. If the sale,
exchange, or lease is effected, the corporation shall pay to
such shareholder, upon surrender of his certificate repre-
senting such shares, the fair value thereof. Such demand
shall state the number and class of the shares owned by
such dissenting shareholder. Any dissenting shareholder
failing to make demand within the ten-day period shall be
bound by the terms of the sale, exchange, or lease.
(2) Within ten days after the sale, exchange, or lease
is effected, the corporation shall give notice thereof to
each dissenting shareholder who has made demand as pro-
vided in this section for the payment of the fair value of
his shares.
(3) If, within thirty days after the date on which the
sale, exchange, or lease was effected, the value of such
shares is agreed upon between the dissenting shraeholder
and the corporation, payment therefor shall be made within
42
ninety days after the date no which the sale, exchange, or
lease was effected, upon the surrender of his certificate
representing such shares. Upon payment of the agreed
value, the dissenting shareholder shall cease to have any
interest in such shares or in the corporation.
(4) If, within such period of thirty days, the share-
holder and the corporation do not so agree, then the dis-
senting shareholder may file a petition within sixty days
after the expiration of the thirty-day period in any court
of competent jurisdiction in the county where the registered
office of the corporation is located asking for a finding and
determination of the fair value of such shares, and he shall
be entitled to judgment against the corporation for the
amount of such fair value as of the day prior to the date on
which such vote was taken approving the sale, exchange,
or lease, together with interest thereon to the date of the
judgment. The judgment shall be payable only upon and
simulaneously with the surrender to the corporation of the
certificate representing such shares: Upon payment of the
judgment, the dissenting shareholder shall cease to have
any interest in such shares or in the corporation. Unless
the dissenting shareholder files such petition within the
time limited in this section, such shareholder and all
persons claiming under him shall be bound by the terms
of the sale, exchange, or lease.
(5) The right of a dissenting shareholder to be paid
the fair value of his shares as provided in this section shall
cease if and when the corporation abandons the sale, ex-
change, or lease or the shareholders revoke the authortiy
to make such sale, exchange, on lease.
(6) Shares acquired by the corporation pursuant to
the payment of the agreed value thereof or to payment of
the judgment entered therefor, as provided in this section,
may be held and disposed of by the corporation as in the
case of other treasury shares.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.