952 P.2d 797 (Colo.App. 1997), 96CA1059, Floyd v. Coors Brewing Co.

Docket Nº96CA1059.
Citation952 P.2d 797
Opinion JudgeCRISWELL Judge.
Party NameDavid J. FLOYD, Plaintiff-Appellant, v. COORS BREWING COMPANY, a Colorado corporation; and Bradley, Campbell, Carney & Madsen, P.C., a Colorado professional corporation, Defendants-Appellees.
AttorneyCheryl Redmond Doyle, Denver, for Plaintiff-Appellant. Hall & Evans, L.L.C., Daniel R. Satriana, Jr., Steven M. Gutierrez, Denver, for Defendant-Appellee Coors Brewing Company. Brega & Winters, P.C., Charles F. Brega, Wesley B. Howard, Denver, for Defendant-Appellee Bradley, Campbell, Carney & Ma...
Judge PanelMETZGER and MARQUEZ, JJ., concur.
Case DateJuly 24, 1997
CourtCourt of Appeals of Colorado, First Division

Page 797

952 P.2d 797 (Colo.App. 1997)

David J. FLOYD, Plaintiff-Appellant,

v.

COORS BREWING COMPANY, a Colorado corporation; and Bradley, Campbell, Carney & Madsen, P.C., a Colorado professional corporation, Defendants-Appellees.

No. 96CA1059.

Court of Appeals of Colorado, First Division

July 24, 1997

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 978 P.2d 663.

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 978 P.2d 663.

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 978 P.2d 663

As Modified on Denial of Rehearing Oct. 2, 1997. Certiorari Granted Feb. 23, 1998.

Page 801

Cheryl Redmond Doyle, Denver, for Plaintiff-Appellant.

Hall & Evans, L.L.C., Daniel R. Satriana, Jr., Steven M. Gutierrez, Denver, for Defendant-Appellee Coors Brewing Company.

Brega & Winters, P.C., Charles F. Brega, Wesley B. Howard, Denver, for Defendant-Appellee Bradley, Campbell, Carney & Madsen, P.C.

OPINION

CRISWELL Judge.

Plaintiff, David J. Floyd, appeals from the judgment dismissing all of the claims asserted by him against Coors Brewing Company (Coors) and Bradley, Campbell, Carney, and Madsen, P.C. (the lawyers). We affirm in part, reverse in part, and remand for further proceedings.

The events giving rise to this litigation are those surrounding the termination of plaintiff's employment by Coors. At the time of his termination, plaintiff had been employed by Coors for 15 years and was its director of security, safety, and occupational health.

Plaintiff's termination was based upon his alleged misuse of company funds, his alleged inability to account for such funds, and his alleged sexual improprieties with a female subordinate. He appealed his termination pursuant to certain of Coors' written policies to an internal appeals panel. That panel, however, approved the termination.

Plaintiff then instituted this action. In his original complaint, he asserted six claims for relief, including a claim based upon 42 U.S.C. § 1983 (1994). As a result of the inclusion of this claim, the cause was removed to the federal court which dismissed his civil rights claim and remanded the cause to the trial court.

The five remaining claims were based upon breach of contract and promissory estoppel against Coors and upon wrongful discharge, outrageous conduct, and violation of Colorado's Organized Crime Control Act (COCCA), § 18-17-101, et seq., C.R.S. (1986 Repl.Vol. 8B), against both Coors and the lawyers.

All of these claims, however, were based upon a common core of factual allegations.

Page 802

Plaintiff alleged that, in his capacity as Coors' director of security, safety, and occupational health, he had engaged in a series of covert drug purchases under the direction of and with the full approval and cooperation of his supervisors. He alleges that these purchases were undertaken to discover the use of illicit drugs by Coors' employees. He asserts that, because such purchases by a private individual, such as he, were illegal, arrangements were made to fund the purchases by monies deposited in, and later withdrawn from, a bank account of the lawyers, who represented Coors.

He alleges that, when it appeared that this clandestine operation might become known, his supervisors conspired to discharge him, so as to make it appear that he had engaged in the previous illegalities solely on his own.

The trial court initially dismissed plaintiff's claims for wrongful discharge, outrageous conduct, and violation of COCCA based solely upon plaintiff's pleadings. Thereafter, the judge who passed upon these claims recused herself, and a different judge, in response to Coors' motion for summary judgment, dismissed plaintiff's breach of contract and promissory estoppel claims.

I.

As a preliminary matter, we address the lawyers' assertion that plaintiff's appeal of the judgment dismissing the claims against them is untimely. We reject that assertion.

When multiple parties or claims are joined in an action, a trial court may direct the entry of a final judgment as to fewer than all of the claims or all of the parties only upon a determination that there is no just reason for delay and with the express direction for the entry of judgment. Without such a determination and directive, any order of dismissal is subject to revision at any time before the entry of a judgment adjudicating all of the claims. C.R.C.P. 54(b); Berry v. Westknit Originals, Inc., 145 Colo. 48, 357 P.2d 652 (1960); Forbes v. Goldenhersh, 899 P.2d 246 (Colo.App.1994).

Here, the trial court entered an order dismissing plaintiff's COCCA, outrageous conduct, and wrongful discharge claims against both defendants on April 27, 1995. Later, the trial court entered an order granting plaintiff's motion to dismiss the contract breach and promissory estoppel claims against the lawyers. Neither of these orders contained the requisite certification under C.R.C.P. 54(b). Hence, because there were still outstanding claims for contract breach and promissory estoppel against Coors, such orders were not final judgments.

Plaintiff's remaining claims were not dismissed until April 26, 1996. Hence, there was no final judgment from which plaintiff could have appealed until this latter date. And, this appeal was filed in a timely fashion thereafter.

II.

Plaintiff first contends that the first trial judge erred by refusing to vacate the previous order dismissing the three claims on the pleadings when she concluded that her recusal was necessary. We conclude, however, that the second judge's substantive review of this order rendered any prior refusal to vacate harmless.

After plaintiff's COCCA, outrageous conduct, and wrongful discharge claims were dismissed, plaintiff filed a motion to recuse the judge then assigned to the cause. That judge granted the motion and recused herself.

After this recusal, plaintiff asked that the initial judge's action in dismissing the three claims be reconsidered. After a full briefing by the parties of the relevant issues, the newly assigned judge denied plaintiff's motion for reconsideration, based on his determination that the original order of dismissal was correct.

Hence, because of this later independent review, any error committed by the original judge in not vacating the previous order was rendered harmless.

III.

Plaintiff argues that the trial court erred in dismissing his outrageous conduct, wrongful

Page 803

discharge, and COCCA claims on the pleadings. We agree in part.

A.

In considering either a motion for judgment on the pleadings or a motion to dismiss, a court must construe the allegations of the pleadings strictly against the movant, must consider the allegations of the opposing party's pleadings as true, and should not grant the motion unless the pleadings themselves show that a dismissal is required. And, in the case of a motion to dismiss, the pleadings must demonstrate that the non-moving party is entitled to no relief under any statement of facts which might be proved in support of the claims. Appellate review of such motions is de novo. Humphrey v. O'Connor, 940 P.2d 1015 (Colo.App.1996).

B.

In his complaint, plaintiff alleged that his COCCA claim was based on §§ 18-17-104(3) and 18-17-104(4), C.R.S. (1986 Repl.Vol. 8B). These statutes provide that:

(3) It is unlawful for any person employed by, or associated with, any enterprise to knowingly conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.

(4) It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (1), (2), or (3) of this section.

Plaintiff alleged that, as a part of the undercover drug...

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