C.r.c.p. 19
C.r.c.p. 19
Annotation I. General Consideration. Law reviews. For article, "Pleadings, Rules 7 to 25 ", see 28 Dicta 368 (1951). For article, "Parties: Rules 17-25 ", see 23 Rocky Mt. L. Rev. 552 (1951). For article, "One Year Review of Civil Procedure", see 34 Dicta 69 (1957). For note on current developments, "Civil Procedure Application of 'Indispensable Party' Provision of C.R.C.P. 19 -the 'Procedural Phantom' Still Stalks in Colorado", see 46 U. Colo. L. Rev. 609 (1974-75). Due process of law requires that those parties whose interests are at stake be before the court. Hidden Lake Dev. Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973). This rule pertains not to permissive or discretionary joinder of the parties, as under C.R.C.P. 20, but to the question of who must be made parties because of necessity or indispensability to a complete adjudication of rights as between the litigants. Bender v. District Court, 133 Colo. 12, 291 P.2d 684 (1955). This rule recognizes difference between "necessary" and "indispensable" parties. This rule clearly shows its section (a) modified by its section (b), thus recognizing a difference between a necessary party and an indispensable party. Cas. Co. v. Lacey, 133 Colo. 357, 295 P.2d 690 (1956). Rule inapplicable to state Administrative Procedure Act proceedings. Because the general assembly specifically has addressed the question of joinder in § 24-4-106, this rule is not applicable in proceedings brought under the state Administrative Procedure Act. Town of Frederick v. Colo. Water Quality Control Comm'n, 628 P.2d 129 (Colo. App. 1980), rev'd on other grounds, 641 P.2d 958 (Colo. 1982). Complaint should not be dismissed for misjoinder of parties where the co-obligee on a construction performance bond was present in the case. Weyerhaeuser Mortgage Co. v. Equitable General Insurance Co., 686 P.2d 1357 (Colo. App. 1983). Pleading a defense of failure to state a claim upon which relief can be granted is sufficient to raise the issue of failure of plaintiff to join an indispensable party. Cold Springs Ranch v. Dept. of Nat. Res., 765 P.2d 1035 (Colo. App. 1988). Partnership not required to be joined as indispensable party. Erickson v. Oberlohr, 749 P.2d 996 (Colo. App. 1987). In litigation concerning a transfer of a conservation easement tax credit, joinder of a transferee who is represented by its tax matters representative is not required. Kowalchik v. Brohl, 2012 COA 49, __ P.3d __. Environmental protection agency was an indispensable party where plaintiffs' claims for relief essentially challenged the reasonableness of the agency's removal action under CERCLA. Aztec Minerals Corp. v. Romer, 940 P.2d 1025 (Colo. App. 1996). The director of a state agency is not necessarily an indispensable party in a suit challenging the constitutionality of a statute governing the state agency. The director is an indispensable party when the appeal involves a statutory duty of the director that concerns a mandatory exercise of discretion. Cruz-Cesario v. Don Carlos Mexican Foods, 122 P.3d 1078 (Colo. App. 2005). Applied in Colo. High Sch. Activities Ass'n v. Uncompahgre Broadcasting Co., 134 Colo. 131, 300 P.2d 968 (1956); Howard v. First Nat'l Bank of Denver, Inc., 354 F.2d 217 (10th Cir. 1966); Union P. R. R. v. State, 166 Colo. 307, 443 P.2d 375 (1968); Greco v. Pullara, 166 Colo. 465, 444 P.2d 383 (1968); Hennigh v. Bd. of County Comm'rs, 168 Colo. 128, 450 P.2d 73 (1969); F.R. Orr Constr. Co. v. Ready Mixed Concrete Co., 28 Colo. App. 273, 472 P.2d 193 (1970); Bashor v. Northland Ins. Co., 29 Colo. App. 81, 480 P.2d 864 (1970), aff'd, 177 Colo. 463, 494 P.2d 1292 (1972); Sentinel Petroleum Corp. v. Bernat, 29 Colo. App. 109, 478 P.2d 688 (1970); Jones v. Adkins, 34 Colo. App. 196, 526 P.2d 153 (1974); Stalos v. Booras, 34 Colo. App. 252, 528 P.2d 254 (1974); Fischer v. District Court, 193 Colo. 24, 561 P.2d 1266 (1977); Erger v. District Court, 198 Colo. 369, 599 P.2d 917 (1979); West-Brandt Found., Inc. v. Carper, 199 Colo. 334, 608 P.2d 339 (1980); Lin Ron, Inc. v. Mann's World of Arts & Crafts, Inc., 624 P.2d 1343 (Colo. App. 1981); Creditor's Serv., Inc. v. Shaffer, 659 P.2d 694 (Colo. App. 1982); Mitchell v. District Court ex rel. Eighth Judicial Dist., 672 P.2d 997 (Colo. 1983); Durango & Silverton Narrow Guage R.R. Co. v. Wolf, 2013 COA 118, __ P.3d __. II. Joined if Feasible. A. In General. Section (a) is mandatory and requires the trial court to join persons falling within its provisions, if feasible. Potts v. Gordon, 34 Colo. App. 128, 525 P.2d 500 (1974). Persons having an interest "proper parties". Persons having an interest in the subject matter of litigation which may conveniently be settled therein are "proper parties". Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963). Presence is not indispensable. If interests of parties before the court may be finally adjudicated without affecting interests of absent parties, the presence of "proper parties" is not indispensable. Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963); Brody v. Bock, 897 P.2d 769 (Colo. 1995). Only if an absent person's interest in the subject matter of the litigation is such that no decree can be entered in the case that will do justice between the parties actually before the court without injuriously affecting the right of such absent person is the absent person considered indispensable. Brody v. Bock, 897 P.2d 769 (Colo. 1995). Persons whose presence is essential to a determination of entire controversy are "necessary parties". Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963). Persons having a joint interest in the subject of an action should be made parties. Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963). Joinder is "feasible". Joinder is "feasible" under this rule as long as the absentee is subject to service of process, his joinder will not deprive the court of jurisdiction, and he has no valid objection to venue of the court. Potts v. Gordon, 34 Colo. App. 128, 525 P.2d 500 (1974). In order to be a person whose joinder is required, it is not necessary that the legal relief contemplated purport to be binding on the absent person, for the prejudicial effect of nonjoinder may be practical rather than legal in character. Potts v. Gordon, 34 Colo. App. 128, 525 P.2d 500 (1974). Joinder will be insisted upon if the action might detrimentally affect the absentee's ability to protect his property or to prosecute or defend any subsequent litigation in which he might become involved. Potts v. Gordon, 34 Colo. App. 128, 525 P.2d 500 (1974). For recovery of damages for joint interest in an item, it is mandatory, under section (a) of this rule that the person having a joint interest be joined on the same side as the other party having the joint interest. Weng v. Schleiger, 130 Colo. 90, 273 P.2d 356 (1954), aff'd, 133 Colo. 441, 296 P.2d 748 (1956); Clubhouse at Fairway Pines v. Fairway Pines Estates, 214 P.3d 451 (Colo. App. 2008). Joinder is not required if the award will not affect property values of the absent owners. Seago v. Fellet, 676 P.2d 1224 (Colo. App. 1983); Clubhouse at Fairway Pines v. Fairway Pines Estates, 214 P.3d 451 (Colo. App. 2008). When a person who should join as a plaintiff refuses to do so, or his consent cannot be obtained, he may be made a defendant or, in proper cases, an involuntary plaintiff. Reed Auto Sales, Inc. v. Empire Delivery Serv., 127 Colo. 205, 254 P.2d 1018 (1953). Persons summoned if subject to jurisdiction. Persons who are not indispensable to an action, but who ought to be parties if complete relief is to be accorded between those already parties, shall be summoned to appear in the action if subject to the jurisdiction of the court. Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963). Even if it is impossible to join all absentees in a case, the trial court is not necessarily precluded from continuing with the case. Potts v. Gordon, 34 Colo. App. 128, 525 P.2d 500 (1974). Failure to join a necessary party is not a ground for dismissal of an action. McIntosh v. Romero, 32 Colo. App. 435, 513 P.2d 239 (1973). Court should join party or allow amendment to complaint. Instead of dismissing a complaint where a necessary party has not been joined, the court should proceed in accordance with this rule, joining the party, or allowing the opportunity to amend the complaint. McIntosh v. Romero, 32 Colo. App. 435, 513 P.2d 239 (1973). Judgment void. A judgment which adversely affects an indispensable party who is not joined is void. Hidden Lake Dev. Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973). Joinder first raised on appeal. Joinder has been required under this rule after trial where the issue was first raised on appeal. Potts v. Gordon, 34 Colo. App. 128, 525 P.2d 500 (1974). B. Illustrative Cases. In action for breach of contract against a subdivision developer in which certain plaintiffs held property in subdivision as joint tenants with their spouses, spouses were indispensable parties. Seago v. Fellett, 676 P.2d 1224 (Colo. App. 1983). And any error resulting from a failure to insist upon joinder of a spouse who is a co-owner, when the record shows that a party had and rejected a clear opportunity to insist upon joinder at trial, is invited error. Karakehian v. Boyer, 900 P.2d 1273 (Colo. App. 1994). All individual landowners within a sub-area of a subdivision were indispensable parties, notwithstanding that the homeowner's association was a party, where the complaint implicated the interests of all of the individual landowners and the individual landowners had potentially conflicting interests with each other and with the association itself. Dunne v. Shenandoah Homeowners Ass'n, Inc., 12 P.3d 340 (Colo. App. 2000). One joint owner cannot recover damages to the jointly owned property without joining the other joint owner in the action. Downing v. Don Ward & Co., 28 Colo. App. 75, 470 P.2d 868 (1970). Individual landowners neither indispensable nor necessary parties in initiative or referendum proceedings dealing with zoning. Individual landowners are neither indispensable nor necessary parties to an action involving initiative and referendum petitions dealing with the zoning of their property as the relief sought can be granted in their absence, and the relief neither impairs nor impedes the landowners' ability to protect their interests and does not involve the risk of multiple inconsistent obligations. Margolis v. District Court, 638 P.2d 297 (Colo. 1981). Landowners not affected by special use permit not indispensable. Where the grant of special use permits to one landowner does not create a particularized benefit in other owners of land contained within the boundaries of the permit areas, such landowners are not indispensable parties in a proceeding under C.R.C.P. 106(a)(4). Thorne v. Bd. of County Comm'rs, 638 P.2d 69 (Colo. 1981). Additional landowners not indispensable parties in action to enforce easement across defendant's property. Although the additional landowners may have been joined permissibly, their presence was not necessary to accord the parties already joined complete relief; the non-joined parties would not lose their ability to assert their rights; and the defendant would not be exposed to the risk of inconsistent decisions, multiple suits, and related obligations or injuries. Williamson v. Downs, 829 P.2d 498 (Colo. App. 1992). Defendant-lawyer is not proper party to action by seller against buyer and guarantor. Where sellers of personal property had two distinct claims: an action on a note and other matters against the buyer and the guarantor and a malpractice action against the lawyer, the lawyer would not have been either a proper or necessary party to the other lawsuit. Deaton v. Mason, 616 P.2d 994 (Colo. App. 1980). Where both mortgagor and mortgagee are parties in interest, both should join in the suit. Reed Auto Sales, Inc. v. Empire Delivery Serv., 127 Colo. 205, 254 P.2d 1018 (1953); Centennial Cas. Co. v. Lacey, 133 Colo. 357, 295 P.2d 690 (1956). No requirement to join persons who have separate notes or contract arrangements with a guarantor. Andrikopoulos v. Minnelusa Co., 911 P.2d 663 (Colo. App. 1995), aff'd on other grounds, 929 P.2d 1321 (Colo. 1996). Plaintiff shall have opportunity to join third party agreements if plaintiff has alleged a meritorious claim that third party agreements have affected its rights and obligations as a judgment debtor and because the equitable issue may again rise if the third party fails to pay promissory note. Lakeside Ventures, LLC v. Lakeside Dev. Co., 68 P.3d 516 (Colo. App. 2002). The bailor is not a necessary party to an action by the bailee against a third person for injury to the subject matter of the bailment, such person not being exposed to a multiplicity of lawsuits because payment of the damages to the bailee will bar any subsequent suit by the bailor for the same cause of action. Downing v. Don Ward & Co., 28 Colo. App. 75, 470 P.2d 868 (1970). Other water users need not be joined. In controversies involving the respective rights of users from flowing streams or impounded waters, then, since only the disputed rights between litigants are involved in such proceedings, other users of water from the same source need not be joined. Bender v. District Court, 133 Colo. 12, 291 P.2d 684 (1955). Water rate petitioners without special interest in appeal not indispensable parties. Petitioners who request that their county commissioners fix a maximum water rate, which would then apply to all water users in the county, and who have no interest in the outcome of the litigation beyond that of all persons subject to the rate are not indispensable parties in an appeal of the ratemaking order. Talbott Farms, Inc. v. Bd. of County Comm'rs, 43 Colo. App. 131, 602 P.2d 886 (1979). Shareholders in mutual ditch company should be joined in condemnation action. Pursuant to this rule and the court's power under C.A.R. 21, the district court should join as parties to a condemnation action those shareholders in a mutual ditch corporation whose water rights would be affected by the condemnation action of the defendant as of the date of the initiation of the condemnation action and all parties in interest. Jacobucci v. District Court, 189 Colo. 380, 541 P.2d 667 (1975). In a situation in which a court has been asked to determine the disposition of escrowed money, as a pragmatic matter, the money is there and there is a duty on the part of the judiciary, once asked, to reach a decision on the merits; and to do so means that the trial court must sua sponte join the parties necessary to a determination as to who gets the money. City & County of Denver v. City of Arvada, 192 Colo. 88, 556 P.2d 76 (1976). The trial court had and currently has an obligation to bring in water users, or their successors in interest, who have paid tap fees requested by Denver as the furnisher of the water for a determination of escrowed tap fees, irrespective of the fact that neither of the original parties moved for joinder. City & County of Denver v. City of Arvada, 192 Colo. 88, 556 P.2d 76 (1976). County treasurer not indispensable party in proceeding challenging lien priority. In a tax sale the county treasurer who issued the certificate of sale to purchaser of tax sale was not an indispensable party under section (a) of this rule to a proceeding challenging priority of lien of a secured party in the property sold at the tax sale since complete relief could be and was afforded without the treasurer's presence as a party. John Deere Indus. Equip. Co. v. Moorehead, 38 Colo. App. 220, 556 P.2d 91 (1976), rev'd on other grounds, 194 Colo. 398, 572 P.2d 1207 (1977). City council is indispensable party to suit brought seeking review of denial of rezoning petition and failure to join it is a jurisdictional defect requiring dismissal. Dahman v. City of Lakewood, 44 Colo. App. 261, 610 P.2d 1357 (1980). County was an indispensable party where issue was whether roads that crossed private property were public or private roads. Bittle v. CAM-Colo., LLC, 2012 COA 93, 318 P.3d 65. An applicant for a zoning variance is an indispensable party to an action challenging the approval of the variance. Norby v. City of Boulder, 195 Colo. 231, 577 P.2d 277 (1978). Applicant whose request for rezoning is challenged is indispensable party. An applicant whose request for rezoning is challenged in court is an indispensable party to the judicial proceeding. Norby v. City of Boulder, 195 Colo. 231, 577 P.2d 277 (1978). Applicant for special review use is indispensable party. Applicant for a special review use is an indispensable party to an action challenging approval of special review use. Norby v. City of Boulder, 195 Colo. 231, 577 P.2d 277 (1978). Fire protection district not necessary party to tax refund action involving allocation for protection. Where a community seeks a refund of taxes mistakenly paid for fire protection from the board of county commissioners, the fire protection district is not a necessary party to the action, and failure by the community to join the district is not a ground for dismissal. Bd. of County Comm'rs v. District Court, 199 Colo. 338, 607 P.2d 999 (1980). Claimant who has not intervened in civil rights commission proceeding is not party and service of a petition for judicial review is not required upon that individual under § 24-34-308(3). Red Seal Potato Chip Co. v. Colo. Civil Rights Comm'n, 44 Colo. App. 381, 618 P.2d 697 (1980). Child, through guardian ad litem, is indispensable party in dependency and neglect hearing. People in Interest of M.M.T., 676 P.2d 1238 (Colo. App. 1983). As is applicant for use permit. An applicant for use permit is an indispensable party to a proceeding challenging the grant of the application. Neighbors For A Better Approach v. Nepa, 770 P.2d 1390 (Colo. App. 1989). III. Determination by Court. One is not an indispensable party to a suit merely because he has a substantial interest in the subject matter of the litigation. Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963). A mere interest in the subject matter of litigation, even though substantial, is not sufficient in itself to warrant a determination of indispensability. Thorne v. Bd. of County Comm'rs, 638 P.2d 69 (Colo. 1981). One is not an indispensable party even though one's interest in the subject matter of the litigation is such that his presence as a party to the suit is required for a complete adjudication in that suit of all questions related to the litigation. Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963). The test for an indispensable party may be stated thus: Is the absent person's interest in the subject matter of the litigation such that no decree can be entered in the case which will do justice between the parties actually before the court without injuriously affecting the right of such absent person? Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963); Civil Serv. Comm'n v. District Court, 185 Colo. 179, 522 P.2d 1231 (1974); Civil Serv. Comm'n v. District Court, 186 Colo. 308, 527 P.2d 531 (1974); Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo. App. 1984); Prutch Bros. TV v. Crow Watson No. 8, 732 P.2d 241 (Colo. App. 1986). The definition of "indispensable parties" by the U.S. supreme court is: Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Davis v. Maddox, 169 Colo. 433, 457 P.2d 394 (1969). Whether or not a party is indispensable turns on the facts of each case. Civil Serv. Comm'n v. District Court, 185 Colo. 179, 522 P.2d 1231 (1974); I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882 (Colo. 1986). Though injury to the absent party is the most important factor in determining indispensability, other factors are recognized such as the danger of inconsistent decisions, avoidance of a multiplicity of suits, and the reluctance of a court to render a decision which will not finally settle the controversy before it. Davis v. Maddox, 169 Colo. 433, 457 P.2d 394 (1969). A party permitted to intervene pursuant to C.R.C.P. 24 is not necessarily indispensable pursuant to this rule. C.R.C.P. 24(a)(2) provides for intervention when the applicant claims an interest relating to the property or transaction that is the subject of the action and he or she is so situated that the disposition of the action may as a practical matter impair or impede his or her ability to protect that interest. Although language of this rule and C.R.C.P. 24 are similar, this rule involves a two-step analysis: (1) Whether the party is necessary within the meaning of section (a) of this rule; and (2) whether the party is indispensable based on the factors of section (b) of this rule. Hicks v. Joondeph, 232 P.3d 248 (Colo. App. 2009). The issue of indispensability was not waived by the common interest community association where the association raised indispensability to protect the interests of absent parties rather than to protect itself against possible future claims by such parties, and, as the defendant, the association did not choose the parties to the action. Clubhouse at Fairway Pines v. Fairway Pines Estates, 214 P.3d 451 (Colo. App. 2008). If present trust property is involved and a money judgment is recovered in an action, it will be property of the trust, and so the holder of the legal title should be a party. Davis v. Maddox, 169 Colo. 433, 457 P.2d 394 (1969). Nonresident shareholders need not be joined if the action is merely one to review the propriety of an election and does not seek any action directly or indirectly against the particular shareholder whose vote is being challenged. State ex rel. Gentles v. Barnholt, 145 Colo. 259, 358 P.2d 466 (1961). Grantors of a warranty deed which is the subject of an action to determine an adverse possession encumbrance are not indispensable parties to a determination of the dispute. Rivera v. Queree, 145 Colo. 146, 358 P.2d 40 (1960). Partial assignees of an agreement of a plaintiff, though necessary parties, are not indispensable, and failure to join is not fatal. Centennial Cas. Co. v. Lacey, 133 Colo. 357, 295 P.2d 690 (1956). Where a judgment creditor and an insured party make an agreement whereby the insured will sue his insurance company to pay off the judgment against him, the judgment creditor is not an indispensable and necessary party, because a third party judgment creditor of an insured cannot sue the insurer. Northland Ins. Co. v. Bashor, 177 Colo. 463, 494 P.2d 1292 (1972). Even if indispensable parties are omitted, the question of jurisdiction shall not be raised. Centennial Cas. Co. v. Lacey, 133 Colo. 357, 295 P.2d 690 (1956). Court had jurisdiction to determine that party was indispensable. Although federal court had dismissed actions twice for lack of jurisdiction based on finding that a party was indispensable and therefore diversity did not exist, issue was not res judicata and state court did have jurisdiction since determination of whether a party is indispensable was not substantive question. Sharp Bros. Constr. v. Westvaco Corp., 878 P.2d 38 (Colo. App. 1994). If a court can do justice to the parties before it without injuring absent persons, it will do so and shape its relief in such a manner as to preserve the rights of the persons not before the court. Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963). Purchaser pendente lite in mechanic's lien action is not an indispensable party. Abrams v. Colo. Seal and Stripe, Inc., 702 P.2d 765 (Colo. App. 1985). Party held not to be indispensable. Draper v. Sch. Dist. No. 1, 175 Colo. 216, 486 P.2d 1048 (1971). The court may dismiss a claim without prejudice at the close of plaintiff's evidence if it concluded that indispensable parties have not been included. Bock v. Brody, 870 P.2d 530 (Colo. App. 1993). Trial court did not abuse its discretion by denying county's motion to dismiss under C.R.C.P. 12(b)(5) and 12(b)(6) and subsection (a) of this rule for failure to join landowners as indispensable parties. A finding that county land use department abused its discretion by refusing to perform ministerial task of accepting application of fire protection district in no way implicated landowner's interests as to make them indispensable parties. Nor did fire protection district's request for a declaration that project could proceed absent an amendment to the planned unit development (PUD). At root, question presented involved which process the district was required to employ in order to build its fire station. This determination did not impair the landowners' ability to protect their interests because, whether the court required a location and extent review, as the district sought, or an amendment to the PUD, which the county believed to be required, the landowners would have had the opportunity to be heard and protect their interests through the applicable statutory processes. Hygiene Fire Prot. Dist. v. Bd. of County Comm'rs, 205 P.3d 487 (Colo. App. 2008), aff'd on other grounds, 221 P.3d 1063 (Colo. 2009).
For pleading claims for relief, see C.R.C.P. 8(a); for class actions, see C.R.C.P. 23.