Home > Cole v. CARDEZ CREDIT AFFILIATES, LLC

Cole v. CARDEZ CREDIT AFFILIATES, LLC

KELLY and VICKY COLE, husband and wife, Plaintiffs-Appellants,
v.
CARDEZ CREDIT AFFILIATES, LLC, LAW FIRM OF DALLING & DALLING, WILLIAM R. DALLING, Defendants-Respondents.
Docket No. 34918.

Court of Appeals of Idaho.

Filed February 27, 2009.

Kelly Cole and Vicky Cole, Council, appellants pro se.

William R. Dalling, Dalling & Dalling, Idaho Falls, for respondents.

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

GRATTON, Judge.

Kelly and Vicky Cole appeal from the district court's order denying change of venue and order of dismissal. We affirm.

I.

FACTS AND PROCEDURAL BACKGROUND

On April 11, 2006, Cardez Credit Affiliates, LLC (Cardez Credit filed a suit against Vicky Cole in district court in Bonneville County, where it maintains its principal place of business, alleging that Vicky Cole owed money to Cardez Credit on a past due credit card debt. Vicky Cole filed a pro se response dated May 8, 2006. Cardez Credit filed a motion for summary judgment, to which Vicky Cole responded. A hearing on the motion was conducted on June 28, 2006. At the hearing, Vicky Cole orally requested change of venue to Adams County, her place of residence. The district court denied the oral motion for change of venue and granted the motion for summary judgment. A judgment against Vicky Cole in the amount of $20,556.30 was entered by the district court from which no appeal was taken. On July 26, 2006, Cardez Credit recorded an abstract of the Bonneville County judgment in Adams County, which became a lien upon Kelly and Vicky Cole's real property. I.C. 10-1110.

The instant action was filed in Adams County by Kelly and Vicky Cole (the Coles, pro se, on June 29, 2007. The Coles claim that venue was improper in the initial Bonneville County action and, therefore, the Bonneville County judgment was entered without jurisdiction. The Coles contend that since the Bonneville County judgment was entered without jurisdiction any lien on their Adams County property, created by the abstract of judgment, amounts to no more than a nonconsensual common law lien, I.C. 45-1701. Cardez Credit filed a motion for change of venue to Bonneville County, which was granted by the Adams County district court. Upon transfer to Bonneville County, Cardez Credit moved to dismiss the action pursuant to I.R.C.P. 12(b(6. The Coles then filed a motion to change venue in order to transfer the case back to Adams County. The Bonneville County court denied the change of venue motion and granted the motion to dismiss. This appeal followed.

II.

ANALYSIS

The Coles appeal the district court's dismissal of the action pursuant to I.R.C.P. 12(b(6 and the order denying change of venue. As an appellate court, we will affirm a trial court's grant of an I.R.C.P. 12(b(6 motion where the record demonstrates that there are no genuine issues of material fact and the case can be decided as a matter of law. Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 398, 987 P.2d 300, 310 (1999. When reviewing an order of the district court dismissing a case pursuant to Rule 12(b(6, the nonmoving party is entitled to have all inferences from the record and pleadings viewed in its favor, and only then may the question be asked whether a claim for relief has been stated. Coghlan, 133 Idaho at 398, 987 P.2d at 310. The issue is not whether the plaintiff will ultimately prevail, but whether the party is entitled to offer evidence to support the claims. Orthman v. Idaho Power Co., 126 Idaho 960, 962, 895 P.2d 561, 563 (1995.

Determination of venue is within the discretion of the trial court in cases where conflicting issues of fact must be resolved. Hayes v. Kingston, 140 Idaho 551, 554, 96 P.3d 652, 655 (2004. In such case, the decision to grant or deny a motion for change of venue is left to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of that discretion. Robinson v. White, 90 Idaho 548, 551, 414 P.2d 666, 669 (1966. Otherwise, construction and application of the venue statutes is a matter of law over which we exercise free review. Hayes, 140 Idaho at 554, 96 P.3d at 665.

Central to the Coles' claims regarding both the sufficiency of the complaint and the issue of venue, is the contention that venue was improper in the initial Bonneville County action and, therefore, the Bonneville County judgment was entered without jurisdiction. The Coles claim that the initial action should have been transferred to Adams County pursuant to I.C. 5-404, as Vicky Cole resided in Adams County at the time of initiation of that suit. In addition, the Coles contend that the Fair Debt Collection Practices Act, 15 U.S.C. 1692(i, requires that venue be placed in the county of residence of the debtor. A timely motion for change of venue in the initial Bonneville County action may well have resulted in a change of venue to Adams County under these statutes. However, Vicky Cole failed to timely file a motion for change of venue in that action and, as such, waived her objection to venue. I.R.C.P. 40(e(1(A.[1] Vicky Cole's oral motion for change of venue was denied as untimely. No appeal from the decision as to venue or the grant of summary judgment was taken by Vicky Cole from that action. No post-judgment motions were raised by Vicky Cole in that action. See I.R.C.P. 60.

The Coles confuse the issues of jurisdiction and venue. The Bonneville County court in the initial action was not without jurisdiction just because venue may have been properly placed elsewhere upon timely motion. Improper venue does not deprive a court of jurisdiction where service has been properly made. Clark v. Atwood, 112 Idaho 115, 116, 730 P.2d 1035, 1036 (1986. Although improper venue might have been an appropriate issue in a direct appeal from the decision of the Bonneville County court in the initial action, "it affords no basis to attack a judgment collaterally." Id. At bottom, this action is an improper collateral attack on the original judgment through the abstract of judgment recorded in Adams County.

In addition, res judicata bars the Coles' claims in this matter. The issue regarding venue in the initial Bonneville County action was decided against Vicky Cole. The decision in that case was not appealed. Accordingly, it is now final and the doctrine of res judicata applies not only as to all matters decided, but also to every matter which might and should have been litigated in the first action. McQuillen v. City of Ammon, 113 Idaho 719, 721, 747 P.2d 741, 743 (1987. When a litigant chooses not to continue to assert her rights after an adverse decision by the trial court, the litigation is concluded as effectively as if it had proceeded through the highest court. Id.

The Coles claim that the lien created by the Bonneville County judgment is a nonconsensual common law lien. I.C. 45-1701. The Coles base this claim, again, on the argument that venue was not proper in Bonneville County in the initial action and, as such, the court lacked jurisdiction to render the judgment upon which the abstract of judgment is based. However, the lien created by the abstract of judgment is a statutorily created lien, I.C. 10-1110. As held in Messenger v. Burns, 86 Idaho 26, 29, 382 P.2d 913 (1963, "[a] judgment lien is purely a creature of statute and does not exist in the body of our common law." Therefore it is, by definition, I.C. 45-1701(3(a, not a nonconsensual common law lien and, thus, the venue provisions of I.C. 45-1703 do not apply. A claim that the judgment underlying the lien is void does not cause the statutory lien to become a nonconsensual common law lien.

The essence of this matter is a collateral attack on the Bonneville County judgment. The venue provisions of I.C. 5-401 do not apply. As stated in Jarvis v. Hamilton, 73 Idaho 131, 134, 246 P.2d 216 (1952, I.C. 5-401 is effective only when real property or the title thereto is the primary subject matter of the action. This is not an action for recovery of real property. I.C. 5-401(1. In this instance, the primary subject matter of the suit is the validity of the Bonneville County judgment of which the lien is a byproduct.

III.

CONCLUSION

The Coles have not shown error in the district court's order dismissing the complaint for failure to state a claim. The Coles' claim, that the Bonneville County court in the initial action did not have jurisdiction because venue was improper, is an improper collateral attack on a final judgment and is barred by res judicata. The lien created by filing an abstract of the Bonneville County judgment is a statutory lien and not a nonconsensual common law lien. In this case, venue was proper in Bonneville County, the principal place of business of the defendant. The district court's order denying the motion for change of venue and order of dismissal are affirmed. Respondent is awarded costs, but not attorney's fees, as none were requested.

Chief Judge LANSING and Judge GUTIERREZ, CONCUR.

[1] A judgment is not automatically rendered void under either Idaho law or the Fair Debt Collection Practices Act (FDCPA, 15 U.S.C. 1692, et seq. (1982, simply because it is obtained from a county other than the debtor's county of residency. The issue of venue must be timely and properly raised by the defendant debtor.