Andrews v. Picard
| Decision Date | 28 June 2007 |
| Docket Number | No. 05CA2566.,05CA2566. |
| Citation | 199 P.3d 6 |
| Parties | Helen ANDREWS, Plaintiff-Appellant, v. Davide PICARD, Constructive Alternatives, Inc., and Laurie Skrederstu, Defendants-Appellees. |
| Court | Colorado Court of Appeals |
v.
Davide PICARD, Constructive Alternatives, Inc., and Laurie Skrederstu, Defendants-Appellees.
[199 P.3d 8]
Bennington Johnson Biermann & Craigmile, LLC, Kenneth R. Bennington, Jacquelyn R. Wayne, Denver, Colorado, for Plaintiff-Appellant.
Hustead Law Firm, P.C., Patrick Q. Hustead, Jennifer L. Gifford, Melissa W. Shisler, Denver, Colorado, for Defendants-Appellees.
Opinion by Judge RUSSEL.
Plaintiff, Helen Andrews, appeals the part of the judgment that was entered on a directed verdict in favor of defendants, Davide Picard, Constructive Alternatives, Inc., and Laurie Skrederstu. She also appeals the order denying her motion for new trial under C.R.C.P. 59(a). We reverse and remand with directions.
Plaintiff hired defendants to build a home. The project did not go well, and plaintiff later sued defendants to recover for alleged defects. Plaintiff asserted several substantive claims, including breach of contract and negligence. She also asserted an "alter ego" claim to hold defendant Skrederstu personally liable for any damages awarded against defendant Constructive Alternatives.
The case was tried in February 2005. Before submitting the case to the jury, the trial court granted defendants' motion for a directed verdict on plaintiff's negligence claim. The court ruled that this claim was barred by the economic loss rule.
The jury returned a verdict in favor of plaintiff and against Constructive Alternatives for breach of contract. It awarded plaintiff $40,000 in damages on that claim. The jury returned verdicts in favor of defendants on the remaining substantive claims. The jury was not asked to decide plaintiff's alter ego claim.
On February 23, 2005, the trial court issued a signed and dated "Civil Trial Minute Order." This order stated, in pertinent part:
After deliberating, the jury returned a unanimous verdict in favor of Plaintiff on her breach of contract claim. The jury awarded Plaintiff $40,000 in damages for that claim. The jury returned a unanimous verdict in favor of Defendants on Plaintiff's claims for violation of the Colorado Consumer Protection Act, bad faith conduct under the Colorado Consumer Protection Act, false representation (fraud), and breach of trust.
Therefore, judgment is entered for the Plaintiff in part and Defendant in part.
On August 15, 2005, the court issued an "Order of Final Judgment." This order, also signed and dated, stated as follows:
IT IS ORDERED that judgment in the amount of $51,559.15, including pre-judgment interest of $11,559.15, attorneys' fees in the amount of $113,680.50 and costs in the amount of $23,401.10 is hereby entered
in favor of Plaintiff Helen Andrews and against Defendant Constructive Alternatives.
IT IS FURTHER ORDERED, that post-judgment interest at the rate of $41.35 per diem is assessed against Defendant Constructive Alternatives, Inc.
On August 18, 2005, plaintiff filed a motion for post-trial relief under C.R.C.P. 59(a). She asserted that the trial court had erred in granting a directed verdict on her negligence claim, and she requested a new trial against all defendants on that claim.
On November 7, 2005, the trial court issued a written order denying plaintiff's motion for new trial. The court ruled that plaintiff's motion was untimely. It also reaffirmed that plaintiff's negligence claim was barred by the economic loss rule.
Plaintiff filed this appeal on December 1, 2005.
Defendants contend that this appeal must be dismissed because plaintiff did not file a timely notice of appeal from the trial court's order of February 23. We reject this contention because that order was not a final, appealable judgment.
An appeal from judgment in a civil case must be filed "within forty-five days of the date of the entry of the judgment." C.A.R. 4(a). A judgment is final and appealable if it disposes of the entire litigation on its merits, leaving nothing for the court to do but execute on the judgment. Kempter v. Hurd, 713 P.2d 1274, 1277 (Colo.1986). The failure to file a timely appeal creates a jurisdictional defect. Clasby v. Klapper, 636 P.2d 682, 684 (Colo.1981).
Here, the court's order of February 23 was not final because it did not dispose of the entire litigation. Although the order stated that "judgment is entered for the Plaintiff in part and Defendant in part," it did not fix the extent of each defendant's liability (presumably because the court had yet to determine whether defendant Skrederstu would be personally liable under plaintiff's alter ego theory).
In contrast, the August 15 "Order of Final Judgment" was final and appealable because it determined the extent of plaintiff's recovery and the extent of each defendant's liability on the underlying claims. The order included an award of prejudgment interest, which is an element of damages. See Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 400-01 (Colo.App.2006). It thus disposed of the entire litigation on plaintiff's claims and left nothing to do but execute on the judgment. See Kempter v. Hurd, supra.
Because final judgment was entered on August 15, we...
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