Certificate of Compliance

I certify that this brief complies with the requirements of Colorado Appellate Rules (C.A.R.) 28 and 32. Including:

Word Limits: My brief has 4593 words, which is not more than the 9,500 word limit.

Included Sections: In the arguments section, before arguing each issue on appeal, I have the following separately titled sub-sections:

The Standard of Review: I discuss which Standard of Review should be used to evaluate that issue.

Preservation: I discuss if that issue was preserved for appeal. I cite to the p. in the Record on Appeal where I raised this issue before the District Court and I cite to where the District Court decided that issue.

I understand that my brief may be rejected if I fail to comply with these rules.       

[ENTER SIGNATURE]

TABLE OF CONTENTS

Issues on Appeal 6

Statement of the Case  6

Summary of Argument 13

Arguments 15

I.   A Magistrate cannot preside over types of probate proceedings that are not specifically permitted in the Colorado Rules for Magistrates without the parties giving consent. 15

II.  The Magistrate lacked jurisdiction to preside over the probate matter because no notice of assignment was mailed to the parties. 18

III.   The Magistrate’s decision was manifestly unreasonable, outside the bounds of possible reasonable decisions that it could have made under the circumstances and/or unfair. 22

Conclusion  24

Certificate of Service  25

TABLE OF AUTHORITIES

Cases

Delsas V. Centex Home Equity Co., 186 P.3d 141, 145 (Colo. App. 2008)………. 22

Estate Of Etchart V Nelson, 179 Colo 142  144 (Colo 1972)………………………… 16

Firstbank-Longmont V. Bd. Of Equalization, 990 P.2d 1109, 1112 (Colo. App. 1999)     16

Goderstad V. Dillon Companies, Inc., 971 P.2d 693 (1998)………………………… 17

Heotis V. Colo. Dep’t Of Educ., 2016 COA 6, ¶ 10…………………………………… 15

Hiner V. Johnson, 2012 COA 164, ¶ 13………………………………………………….. 16

Horton V. Suthers, 43 P.3d 611 (Colo.2002)……………………………………….. 14, 19

In Re Parental Responsibilities Of M.B.-M., 252 P.3d 506, 509 (Colo. App. 2011).         16

In Re R.G.B., 98 P.3d 958, 960 (Colo. App. 2004)……………………………….. 15, 18

People Ex Rel Orange County V M.A.S, 962P 2d 339, 342-343 (Colo App 1998) 16

Statutes

§ 13-5-201(3), C.R.S. 2019…………………………………………………………………… 15

Rules

C.R.M. 3 (f)(I)(A),………………………………………………………………………………. 21

C.R.M. 6 (e)(2)(A)…………………………………………………………………………. 13, 20

C.R.M. 6(d)……………………………………………………………………………………….. 20

C.R.M.1 7(a)………………………………………………………………………………………. 21

C.R.M.6(c)………………………………………………………………………………………… 20

CRM 5(g), CRM 6(e) (2)(a), CRM 6 (o)………………………………………………….. 21

CRM 6 (e)(f)…………………………………………………………………………………….. 23

CRM 7(b)………………………………………………………………………………………….. 20

Rules 5(g) and 6 (f) of the Colorado Rules for Magistrates…………………………….. 6

Issues on Appeal

Statement of the Case

This probate matter was instituted by Diane Evans, alleging that she was the decedent’s daughter, on March 15, 2017. (CF p. 1). She filed for informal probate of a forged will with her application. The El Paso Clerk’s Office registrar issued Letters Testamentary and appointed Ms. Evans as the Personal Representative on March 23, 2018. As this probate matter was assigned to a district court magistrate by the El Paso Clerk, all parties must have consented to any decisions being made in this matter being performed by a magistrate in accordance with Rules 5(g) and 6 (f) of the Colorado Rules for Magistrates.

Any objection to proceeding before the magistrate must have been made in open Court within fourteen (14) days or in writing, filed with the Court, and served upon the other interested parties within fourteen (14) days.  The Notice of Assignment to the Magistrates Division was supposed to be created and mailed to the Interested parties, but as the record reflects, the El Paso Clerk’s Office and the El Paso Probate Court never even created or mailed the required Notice of Assignment to the Magistrates Division.  Interested party Kelly McGoffney (“McGoffney”) was not included as an heir in the initial forged application filed with the Clerk. When McGoffney found out two (2) months later, on April 20, 2017, that her father had died, she filed pro-se her Objection to the informal probate. Subsequently, on June 19, 2017, she filed her Biological Child Kelly D. McGoffney Urgent Motion to Intervene, and requesting other relief.

On June 26, 2017, she filed her Interested Party’s Urgent Motion for Order Revoking Probate, Restricting Personal Representative’s Authority to Convey Decedent’s Home, Requiring an Inventory and an Accounting, and for an Evidentiary Hearing.  CF Page 89. An Exhibit list for Interest Party was filed January 29, 2018, showing that one of the alleged heirs had not been located (Boyd Higginbotham, Jr.) and did not have notice of the hearing, as the mail was returned. (CF p. 277). Orlanda Moore, Boyd Higginbotham Jr. and Rodney Higginbotham did not attend the January 29 hearing or any hearings for two years.

The various issues were scheduled for a hearing that occurred on January 29, 2018. At the hearing, McGoffney was represented by attorney William Kirkman. The Court heard the testimony of the parties’ witnesses and considered documentary evidence and took the matter under advisement.

The Court subsequently entered a long order on February 28, 2018 (CF p. 288), and made a number of findings which are summarized here. Boyd N. Higginbotham, Sr. passed away on February 13, 2017, and has at least five possible descendants: Boyd Higginbotham, Jr., Diane Susan Evans, Orlanda Moore, Rodney Higginbotham, and Kelly McGoffney. These descendants are the only ones listed in the court filings. Ms. Evans did not object and did not challenge at the hearing the older DNA results filed by the McGoffney showing that the decedent was Ms. McGoffney’s father. The Court therefore found that Ms. McGoffney was an heir of the decedent, along with the four other children listed in the informal application.

Ms. McGoffney challenged Mr. Higginbotham’s alleged will based upon that fact that his asserted signature was not notarized and her further belief that the signature was not in fact his. Two witness signatures appeared on the purported will, although the date of the signatures was not filled in. The two witness signatures were Anissa Evans, Diane Evans’ daughter, and April M. Dunbar.  Both Anissa Evans and Ms. Dunbar testified that they witnessed the decedent sign the purported will on the apparent date indicated.  In fact witness Mr.  Higginbotham’s signature, and  no self-proving affidavit was presented with the will.

After considering the evidence, the Court concluded that the signature on the purported will did not appear to match any of the known, notarized exemplars of Mr. Higginbotham’s signature. The signatures supplied by Ms. Evans, though not notarized, were found to appear similar to the notarized signatures and dissimilar to the purported will signature. The Court could not say that the signature on the purported will was not decedent’s signature, but found that McGoffney had raised a sufficient question in the Court’s mind that the Court could not find by a preponderance of the evidence that the will was duly executed by Mr. Higginbotham. The Court granted Ms. McGoffney’s request to revoke the informal probate of the will and adjudicated Mr. Higginbotham as intestate, and found that his heirs were as set forth at the beginning of the order. Diane Evans at the time remained as the Personal Representative. Mr. Higginbotham’s five known children were found to be equal heirs of his estate.

At that hearing as shown by the transcript, Magistrate Frances Johnson never complied with the requirement to obtain consent orally or in writing in accordance with Colorado Rules for Magistrates  CRM 5(g) or CRM 6(e), (f).

          Subsequent to the hearing held on January 29th, 2018, Magistrate Johnson issued the first of the three orders in the case, dated February 28th, 2018 (the next two were by Successor Magistrate Rahaman). Tr. 1-29-2018, 6-4-2019, 7-31-2019.  The February 28th, 2018 Order (CF Page 288) stated that the heirs were determined, but the transcript of that hearing is part of the record and confirmed there was no discussion about who really were the heirs and no ruling at the time during the hearing that they were the heirs, given that only an hour was allocated for the hearing and the time was exhausted due to the lengthy expert testimony regarding the forged signature.  Tr 1-29-2018

          McGoffney, pro se filed an Interested Party Motion to Determine Heirship for an Evidentiary Hearing on March 14^th, 2018. (CF Page 306).  McGoffney, then retained counsel who then through counsel Kirkman, filed a Motion to Alter or Amend Judgment Pursuant to C.R.C.P. Rule 59 on March 14, 2018, (CF Page 324) given that the magistrate had not discussed determining the heirs during the hearing. An order issued on April 19th, 2018, entitled Order re: Motion to Alter or Amend Judgment Pursuant to C.R.C.P Rule 59, CF stating that the Motion was denied due to no legal authority being cited subsequent to ruling that the heirs had been determined in the February 28^th, 2018 Order. (CF Page 357-358).

        McGoffney then filed an Amended Motion for Order Determining Heirship on July 25, 2018, (CF Page 509) citing the legal code, and Magistrate Johnson denied the Motion on August 23rd, 2018, by an order entitled Order on Interested Party’s Amended Motion for Order Determining Heirship, and stating that she had determined the heirs on February 28th, 2018.  (CF Page 528).

        McGoffney filed her Motion for Clarification on August 14, 2019 (CF p. 750), and also filed her Motion for Review of Magistrate’s Order of July 31^st, 2019 on August 14, 2019. (CF p. 754). The Magistrate entered an Order: Proposed Order on Motion for Clarification, which added Diane Evans and Orlanda Moore as heirs. Rodney Higginbotham was not added. Boyd Higginbotham and McGoffney had been already been determined to be heirs. Attorney Haller withdrew from his limited appearance. (CF p. 757).

Interested party McGoffney filed her Interested Party’s Petition for Review of Magistrates Order of October 9th, 2019, on October 29, 2019. (CF p. 845). On November 19, 2019, she filed her Interested Party’s Motion to Move This Case to the District Court Judge Marla Prudek’s Court and to Terminate the Services of the Current Successor Personal Rep. (CF p. 1000). An Order on Interested Party’s Motion to Move This Case to the District Court Judge Marla Prudek’s Court and to Terminate the Services of the Current Successor Personal Rep entered on December 19, 2019. (CF p. 1009).

McGoffney’s Petition for Magistrate Review of Order of December 17th, 2019 was filed on January 7, 2020 (CF p. 1016), and an Order on the motion was entered on February 7, 2020. (CF p. 1021).

An Order: Order on Motion for Review of Magistrate’s Order of July 31, 2019, entered on February 14, 2020, denying the motion. (CF p. 1027). An Order: Order Interested Party’s Petition for Magistrate Review of Order of December 17th, 2019, entered the same day, also denying the motion. (CF p. 1029). An Order: Order on Interested Party’s Petition for Review of Magistrates Order of October 9th, 2019, also entered February 14, 2020, denying that motion. (CF p. 1035).

McGoffney filed her Motion for Rule 60 Relief from Judgement or Order Dated February 20, 2020 and Relief from Order Dated February 24^th 2020 on April 3, 2020. (CF p. 1064). McGoffney also timely filed her Notice of Appeal of the February 24, 2020 Order on April 6. 2020.

Summary of Argument

         As a probate matter is assigned to a district court magistrate, all parties must consent to any decisions made in a probate matter being performed  by the Notice of Assignment to the Magistrates Division being created, mailed and provided in accordance with Rules 5(g) and 6 (f) of the Colorado Rules for Magistrates.  Any objection to a proceeding before the magistrate must be made in open Court within fourteen (14) days or in writing, filed with the Court, and served upon the other interested parties within fourteen (14) days. The record and court file will reflect that the El Paso Clerk’s Office and El Paso Probate Court never created, mailed, provided and failed to ensure that this Notice of Assignment was provided to all Interested parties in accordance with CRM 5(g) and 6(f) but wasn’t as evidenced by the El Paso Clerk letter in writing.

          Consent of all of the parties to have the matter heard by a magistrate was necessary. The Colorado Rules for Magistrates apply to all proceedings conducted by magistrates in district courts, including probate matters that require consent pursuant to C.R.M. 6 (e)(2)(A).  

          Subject matter jurisdiction concerns the court’s authority to deal with the class of cases in which it renders judgment. Subject matter jurisdiction exists when the sovereign from which a court derives authority empowers it to entertain a certain class of cases. Horton v. Suthers, 43 P.3d 611 (Colo.2002). 

          Pursuant to the Code, the probate court, or district court, has exclusive original jurisdiction in proceedings to determine consent and heirs. Thus, subject matter jurisdiction for proceedings to preside over a case for a probate matter required the necessary consent that was never obtained.  CRM 6(f) states in that regard that “[a] district court magistrate shall not perform any function for which consent is required under any provision of this Rule unless the oral or written notice complied with Rule 5(g).”

          As relevant here, CRM 5(g), requires the clerk or probate court to advise the parties at the initial hearing of their rights to a district court hearing in order for them to object within fourteen (14) days.

          During the initial advisement of the rights of any party, the magistrate shall inform the party that, except as provided in this subsection (3), he or she has the right to a hearing before the judge in the first instance and that he or she may waive that right but that, by waiving that right, he or she is bound by the findings and recommendations of the magistrate, subject to a request for review as provided in subsection (5) of this section.

          There was no Notice of Assignment mailed or created by the Clerk or court giving consent to the magistrate, therefore they lacked the authority to preside over this probate matter and all orders should be set aside and is a nullity.

Arguments

I.      A Magistrate cannot preside over types of probate proceedings that are not specifically permitted in the Colorado Rules for Magistrates without the parties giving consent.

Standard of Review

          A district court magistrate has only those powers provided by statute or court rule. See § 13-5-201(3), C.R.S. 2019 (“District court magistrates may hear such matters as are determined by rule of the supreme court…”); see also In re R.G.B., 98 P.3d 958, 960 (Colo. App. 2004) (a magistrate is a hearing officer who acts with limited authority). The Colorado Rules for Magistrates set forth the authority of magistrates to perform particular functions in different types of cases. Heotis v. Colo. Dep’t of Educ., 2016 COA 6, ¶ 10, 375 P.3d 1232. C.R.M. 6 distinguishes between functions in cases that a magistrate can perform only with the consent of the parties and functions that a magistrate can perform without the parties’ consent.

          An appeal based on the interpretation of the magistrate rules is reviewed de novo.  In re Parental Responsibilities of M.B.-M., 252 P.3d 506, 509 (Colo. App. 2011).

          This Court interprets all court rules, consistent with principles of statutory construction, looking first to the plain and ordinary meaning of the words used.  Hiner v. Johnson, 2012 COA 164, ¶ 13.  If the language is unambiguous it must be applied as written.  See FirstBank-Longmont v. Bd. of Equalization, 990 P.2d 1109, 1112 (Colo. App. 1999).

Preservation.

          This issue was preserved by Interested Party McGoffney through counsel Kirkman, who filed a Motion to Alter or Amend Judgment Pursuant to C.R.C.P. Rule 59 on March 14, 2018, given that there was not consent and that Magistrate Frances Johnson had not discussed determining the heirs during the hearing. The issue as to the October 9, 2019 order was preserved by Interested Party McGoffney filing her Interested Party’s Petition for Review of Magistrates Order of October 9th, 2019, on October 29, 2019. (CF p. 845). See also People ex Rel Orange County v M.A.S, 962P 2d 339, 342-343 (Colo App 1998), Estate of Etchart v Nelson, 179 Colo 142  144 (Colo 1972).

Argument

          Consent was necessary. A Magistrate must have authority to preside over a case as required under the Rules. Accordingly, where the parties do not consent, the Magistrate lacks such authority. See Goderstad v. Dillon Companies, Inc., 971 P.2d 693 (1998) (the parties never consented to have the case tried to the magistrate. Therefore, the Magistrate lacked authority to conduct proceedings concerning under such circumstances).

          The Transcript of the January 29, 2018 hearing and the transcript of the July 31, 2019 hearing show that no such advisement was given. The proceeding is therefore a nullity and void as a matter of law. Magistrate Johnson in 2018 did not have the authority to even determine the hearing and there was no discussion as to heirship at the one hour hearing so she could not have determined the heirs without the affirmative consent of all parties. And at that point in time, early in the case, alleged heir Rodney Higginbotham had not yet been located. Nonetheless, her order of February 28, 2018 determined the heirs based solely on a will naming all of the alleged heirs (except McGoffney) which was denied probate, and at the hearing, there was no other evidence presented as to who the heirs really were. 

II.  The Magistrate lacked jurisdiction to preside over the probate matter because no notice of assignment was mailed to the parties.

Standard of Review

          According to § 13-5-201(3) C.R.S. 2019, a district court magistrate has only those powers provided by statute or court rule.  (“District court magistrates may hear such matters as are determined by rule of the Supreme Court …”); see also In re R.G.B., 98 P.3d 958, 960 (Colo. App. 2004) (a magistrate is a hearing officer who acts with limited authority).

Preservation

McGoffney filed her Motion for Clarification on August 14, 2019 (CF p. 750), and also filed her Motion for Review of Magistrate’s Order of July 31^st, 2019 on August 14, 2019. (CF p. 754). McGoffney’s Petition for Magistrate Review of Order of December 17th , 2019 was filed on January 7, 2020 (CF p. 1016), and an Order on the motion entered on February 7, 2020. (CF p. 1021).

          Three petitions for reviews were file supposedly with consent by the trial Court Judge instead of going to the Court of Appeals, supposedly issued with consent. The District Court ruled on two stating that the petition was premature and did not state that Appellant should have gone to the Court of appeals.  This issue was preserved by Interested Party McGoffney filing her Motion for Advancement of Funds to Retain Counsel in Indiana to Open an Ancillary Estate in Indiana and for Other Things on August 20, 2019 (CF p. 770).

Argument

          The magistrate lacked subject matter jurisdiction. Subject matter jurisdiction concerns the court’s authority to deal with the class of cases in which it renders judgment. Subject matter jurisdiction exists when the sovereign from which a court derives authority empowers it to entertain a certain class of cases. Horton v. Suthers, 43 P.3d 611 (Colo.2002). 

          The Colorado Rules for Magistrates set forth the authority of magistrates to perform particular functions in different types of cases. Heotis v. Colo. Dep’t of Educ., 2016 COA 6, ¶ 10, 375 P.3d 1232. C.R.M. 6distinguishes between functions in cases that a magistrate can perform only with the consent of the parties and functions that a magistrate can perform without the parties’ consent.

     C.R.M. 5 states in pertinent part that:

(g) For any proceeding in which a district court judge may perform a function only with consent under C.R.M.6, the notice -which must be written except to the extent given orally to parties who are present in court-shall state that all parties must consent to the function being performed by the magistrate.

• If the notice is given in open court, then all parties who are present and do not object shall be deemed to have consented to the function being performed by the magistrate.

(2) any party who is not present when the notice is given and who fails to file a written objection within 7 days of the date of the written notice shall be deemed to have consented.

As already alleged hereinabove, the magistrate did not get consent of either party and there is no provision that allowed a deemed waiver.  The Order dated October 9, 2019 was denied by the District Court on December 24, 2020, due to the Magistrate writing in his order that he complied with CRM 7(b).  Also, Appellant contends that the instant case is not one of the cases where the Magistrate has jurisdiction over, without consent of the parties. Notably, a magistrate may conduct specified proceedings without consent of the parties, including settlement conferences, hearings on temporary orders in domestic relations cases, and C.R.C.P. 55 default hearings. C.R.M. 6(d). Also, C.R.M. (6)(c) accords magistrates authority, to hear trials to the court, if all parties consent. Therefore, neither C.R.M. 6(d) or C.R.M.6(c) explicitly grants authority to the magistrate to hear such probate matters as Appellant’s. The Colorado Rules for Magistrates apply to all proceedings conducted by magistrates in district courts, including probate matters that require consent pursuant to C.R.M. 6 (e)(2)(A).  

Besides, this court has jurisdiction over “[any order or judgment entered with the consent of the parties” that is “not subject to review under C.R.M.1 7(a).” See C.R.M. 7(b). No Consent was given to the Successor Magistrate orally or in writing pursuant to CRM 5(g), CRM 6(e) (2)(a), CRM 6 (o). Accordingly, the magistrate was wrong when he wrote in his order that consent was given pursuant to CRM 7(b). The transcript will prove that no consent was given orally or in writing, and the District Court refused to review on February 24, 2020 due to consent supposedly given by the Magistrate Rahaman. Further, Appellant refers this Court to C.R.M. 3 (f)(I)(A), which states that:

… where consent is necessary a party is deemed to have consented to a proceeding before a magistrate if:

(i)    The party has affirmatively consented in writing or on the record; or

(ii)   The party has been provided notice of the referral, setting, or hearing of a proceeding before a magistrate and failed to file a written objection within 14 days of such notice; or(iii) The party failed to appear at a proceeding after having been provided notice of that proceeding.

          A district court magistrate shall not perform any function for which consent is required under any provision of the aforesaid Rule unless the oral or written notice complied with. It follows; therefore, the Magistrate lacked jurisdiction due to the Magistrate not having the authority to preside over the case because of the lack of a notice of assignment. There was no oral or written advisement to the parties concerning their right to have a district judge hear any of the proceedings from the time this case started in 2017. 

III.                       The Magistrate’s decision was manifestly unreasonable, outside the bounds of possible reasonable decisions that it could have made under the circumstances and/or unfair.     

Standard of Review

          When the court is called on to interpret or construe a trial court’s order, it does so de novo.  Delsas v. Centex Home Equity Co., 186 P.3d 141, 145 (Colo. App. 2008).

Preservation

          This issue was preserved by Interested Party McGoffney through counsel Kirkman, who filed a Motion to Alter or Amend Judgment Pursuant to C.R.C.P. Rule 59 on March 14, 2018, given that there was not consent and that Magistrate Frances Johnson had not discussed determining the heirs during the hearing. The issue as to the October 9, 2019 order was preserved by Interested Party McGoffney filing her Interested Party’s Petition for Review of Magistrates Order of October 9th, 2019, on October 29, 2019. (CF p. 845). See also People ex Rel Orange County v M.A.S, 962P 2d 339, 342-343 (Colo App 1998), Estate of Etchart v Nelson, 179 Colo 142  144 (Colo 1972).

Argument

CRM 6 (e)(f) state that a district court magistrate shall not perform any function for which consent is required under any provision of this Rule unless the oral or written notice complied with CRM 5 (g). Also, CRM 5(g), requires the magistrate initially to advise the parties of their rights to a district court hearing.

In the instant action, Magistrate Frances Johnson had unlawfully been presiding over this Estate since it was commenced in February 2017. It is also unconscionable that the court could erroneously maintain that there was submission of a stipulation for hearing by district court judge, for the life of the case. But that is what the essence of the trial court’s review order states.

        Also, in light of the failure of the El Paso Clerk and El Paso Probate Court magistrate to advise the parties of their right to have a district court judge there is evidence on record of the El Paso Clerk apprising the appellant, that the document is not included in the case file because it was never created or mailed.  This not only occurred in this case but thousands of other cases until the Appellant brought it to the court’s attention.  None of the parties were apprised of this right, which was required to occur.

        It follows; the Magistrate’s orders were manifestly unreasonable and erroneous because they were issued absent the Magistrate’s jurisdiction and/or authority under the law.

Conclusion

In light of the foregoing, Appellant requests a remand to the El Paso District Court due to lack of jurisdiction by the magistrate to preside over a probate matter without the notice of assignment being created or mailed to the parties to object, which is required. Accordingly this Court should provide instructions to determine that Appellant McGoffney and Boyd Higginbotham, Jr. are the decedent’s only heirs as confirmed by the genetic testing.

Respectfully submitted this 6^th day of September, 2021,

[ENTER SIGNATURE]

Certificate of Service

The undersigned certifies that on this 6th day of September, 2021, a true and correct copy of the foregoing Appellant’s Opening Brief and Certificate of Mailing was placed in the United States mail, postage prepaid and addressed to the following:

Colorado Court of Appeals

2 East 14^th Avenue

Denver, Colorado 80203

Catherine Seal, Esq.

Personal Representative

P.O. Box 2682

Colorado Springs, CO 80901

Diane S. Evans

P.O. Box 6793

Colorado Springs CO 80935

Boyd Higginbotham, Jr.

607 K Street

Salt Lake City, UT 84119

Orlanda Moore 1901

No. 8th Street

Terre Haute, IN 47804

Rodney Higginbotham

2507 E. County Rd. 600N

Brazil, IN 47834

                                                          ______________________________                                                                      Kelly D. McGoffney, Appellant, Pro se

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