June 26, 2017

Archives for April 13, 2017

Application Period Open for Delta County Court Vacancy

On Monday, April 10, 2017, the Colorado State Judicial Branch announced an upcoming vacancy on the Delta County Court in the Seventh Judicial District. The vacancy will occur on August 4, 2017, and is occasioned by the resignation of Hon. Sandra Miller.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of Delta County and must have graduated high school or attained the equivalent. Application forms are available on the State Judicial website or from the ex officio chair of the Seventh Judicial District Nominating Commission, Justice Nathan Coats. Applications must be received no later than 4 p.m. on May 15, 2017 to be considered, and anyone wishing to nominate another must do so no later than May 8, 2017.

For more information about the vacancy and application process, click here.

Colorado Court of Appeals: Statutory Limitations Period Began when Broker Knew of Contractual Breach

The Colorado Court of Appeals issued its opinion in International Network, LLC v. Woodard on April 6, 2017.

Breach of Contract—Exclusive Right-to-Sell Listing—Statute of Limitations—Jury Instructions.

Woodard (seller) owned a 100-acre ranch. In 2006 he signed an exclusive right-to-sell listing agreement with International Network, Inc. (broker). The agreement was for a six-month listing period and provided for a percentage commission to be paid to broker upon sale. Seller had the absolute right to cancel the agreement at any time upon written notice.

Approximately four months into the listing period, seller began negotiating with an attorney who represented a group of potential buyers. Seller did not disclose his negotiations to broker. About a month after commencing these discussions, seller abruptly cancelled the listing agreement without cause. Broker ceased marketing the property. After the listing period had expired, but within the 90-day holdover period set forth in the agreement, seller and the buyers finalized an agreement resulting in the sale of the property.

Seven years later, broker initiated this action against seller for breach of contract based on seller’s failure to comply with the referral provision, which required seller to conduct all negotiations for the sale of the property through broker and refer to broker all communications received from prospective buyers. Following trial, a jury found in favor of broker and awarded damages in the amount of the commission that would have been owed under the listing agreement.

On appeal, seller argued that the trial court erred in denying his motion for directed verdict and his post-trial motion for judgment notwithstanding the verdict because broker’s breach of contract claim was barred by the statute of limitations. C.R.S. § 13-80-101(1)(a) states that a breach of contract claim must be commenced within three years after accrual of the cause of action, and accrual occurs when the breach is discovered or should have been discovered. It was undisputed that seller breached the referral provision in 2006. Seller argued that under the facts, broker should have realized there might have been a breach of the referral provision and through the exercise of reasonable diligence should have discovered it in 2006. Broker asserted it had no knowledge of seller’s duplicity until broker’s agent heard seller’s testimony in another lawsuit in 2011 in which seller testified he had violated the listing agreement and intentionally concealed his negotiations to avoid paying a commission. Therefore, in commencing this action in 2013 broker was within three years of its discovery of the breach. Based on the record, the Colorado Court of Appeals could not conclude that the evidence, viewed in the light most favorable to broker, compelled a different result.

Seller also argued that it was error to not give a jury instruction on the elements of liability for recovery on a real estate commission claim, contending that the broker was not the procuring cause of the sale. Here, seller breached the referral provision and cannot use his intentional concealment of his negotiations to prevent broker from obtaining damages in the form of a commission. The court did not err in rejecting seller’s procuring cause instruction.

Seller contended the trial court erred by rejecting seller’s proposed jury instruction on the affirmative defense of laches. The trial court ruled, and the Court agreed, that seller’s improper conduct precluded his assertion of a laches defense.

Seller further argued that the court erred in denying him the right to impeach broker’s agent with certain evidence. The court precluded seller’s questioning due to lack of a sufficient foundation and acted within its discretion in limiting seller’s cross-examination.

Broker requested attorney fees and costs in accordance with the agreement, which the court awarded.

The judgment was affirmed and the case was remanded for further proceedings to award broker’s costs and attorney fees incurred on appeal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Certification of One Claim in Multiple Claim Suit was Abuse of Discretion

The Colorado Court of Appeals issued its opinion in Allison v. Engel on Thursday, April 6, 2017.

Landowners—Default Judgment—Finality—C.R.C.P. 54(b) —Jurisdiction—Certification.

The parties own adjacent parcels of property and for a number of years have had disagreements about the precise boundaries of their neighboring parcels. The Allisons filed a complaint asserting two trespass claims and a claim for declaratory relief. The Engels filed various counterclaims. Numerous motions were filed, and the district court ultimately certified a default judgment on the counterclaim for unjust enrichment as final under C.R.C.P. 54(b). The Colorado Court of Appeals ordered the parties to file supplemental briefs as to whether the unjust enrichment counterclaim is a separate claim for purposes of C.R.C.P. 54(b) and whether there is no just reason for delay of an appeal pertaining solely to that counterclaim.

Generally speaking, the court of appeals has jurisdiction only over appeals from final judgments. Thus, jurisdiction over an appeal from an order the district court has certified as final under Rule 54(b) depends on the correctness of that certification. Here, the district court gave two reasons for concluding that there was no just reason for delay: (1) “avoid[ing] duplicative efforts” and (2) obtaining “a clear sense of direction in terms of the issues to be considered” at trial. The first reason is plainly insufficient to justify certification because the same could be said about any case involving multiple claims or parties as to which a dispositive ruling is entered on one claim, or as to one party, before trial. The second reason is also insufficient to justify certification because it is not a proper function of Rule 54(b) certification to assuage a district court’s doubts about its decision or to provide “guidance” in the resolution of claims. The district court’s reasons do not show that any party will suffer hardship or injustice unless an immediate appeal of the default judgment on the single counterclaim is allowed. The district court abused its discretion, and the court of appeals lacked jurisdiction.

The appeal and cross-appeal were dismissed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/12/2017

On Wednesday, April 12, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Campbell v. Jones

Shea v. Raemisch

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.