Antolovich v. Brown Group Retail, Inc., 04CA1528.

• Citation: 183 P.3d 582
• Decision Date: 23 August 2007
• Docket Number: No. 04CA1528.,04CA1528.
• Parties: Carol ANTOLOVICH, Richard Antolovich, Carolyn Thompson, John Thompson, Frederick Hall, Susan Jane Lee, and Heidi Groomer, individually and as class representatives, Plaintiffs-Appellants and Cross-Appellees, v. BROWN GROUP RETAIL, INC., a Pennsylvania corporation, Defendant-Appellee and Cross-Appellant, and Redfield Rifle Scopes, Inc., an Iowa corporation, Defendant-Appellee.
• Court: Court of Appeals of Colorado

183 P.3d 582

Carol ANTOLOVICH, Richard Antolovich, Carolyn Thompson, John Thompson, Frederick Hall, Susan Jane Lee, and Heidi Groomer, individually and as class representatives, Plaintiffs-Appellants and Cross-Appellees, v. BROWN GROUP RETAIL, INC., a Pennsylvania corporation, Defendant-Appellee and Cross-Appellant, and Redfield Rifle Scopes, Inc., an Iowa corporation, Defendant-Appellee.

No. 04CA1528.

Colorado Court of Appeals, Div. IV.

August 23, 2007.

Certiorari Denied May 19, 2008.

The Hannon Law Firm, LLC, Kevin S. Hannon, Frederick W. Ganz, Denver, Colorado, for Plaintiffs-Appellants and Cross-Appellees.

Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., Norman R. Mueller, Rachel A. Bellis, Gail K. Johnson, Denver, Colorado, for Defendant-Appellee and Cross-Appellant.

Montgomery, Little, Soran & Murray, P.C., Stephen J. Hensen, C. Todd Drake, Greenwood Village, Colorado, for Defendant-Appellee.

Opinion by Judge HAWTHORNE.

In this toxic tort case, plaintiffs, Carol Antolovich, Richard Antolovich, Carolyn Thompson, John Thompson, Fredrick Hall, Susan Jane Lee, and Heidi Groomer, individually and as representatives for a class of homeowners from Denver's Cook Park neighborhood (collectively homeowners), appeal the judgment the trial court entered after denying their motion for a new trial, and its order awarding defendant Brown Group Retail, Inc. (Brown) costs. Brown cross-appeals the trial court's award of prejudgment interest. We affirm the judgment, including prejudgment interest, reverse the award of costs, and remand for further proceedings.

I. Background

In March 2000, homeowners filed a complaint against Brown and Redfield Rifle Scopes, Inc. (RRSI). Homeowners alleged that Brown and RRSI had released "chlorinated solvents and other toxic chemicals" during their operations at property located at 5800 East Jewell (Redfield site). They alleged that the solvents and chemicals had migrated under the neighborhood in a groundwater plume, contaminated the soil, and gradually converted into a gas which invaded their homes, causing annoyance, discomfort, and loss of use and enjoyment of their properties. They asserted claims for negligence, nuisance, trespass, unjust enrichment, strict liability, respondeat superior, and exemplary damages. After a hearing, the trial court certified a class of homeowners pursuant to C.R.C.P. 23.

During discovery, Brown withheld several memoranda which detailed its investigation of spills and pollution at the Redfield site claiming that they were prepared in anticipation of litigation and therefore protected by attorney work product privilege.

Trial was initially set to commence in April 2003. However, a few days before trial, RRSI filed a motion to compel discovery, arguing that Brown had improperly refused to disclose relevant factual information about its interview of a former Brown and RRSI employee (Noland), who recalled dumping "sludge" at the Redfield site in the east field and reporting this activity to Brown. The trial court found that Brown had improperly refused to disclose this information and had provided misleading discovery responses. It continued the trial until September 2003 and reopened discovery on a limited basis, requiring Brown to produce additional documents and allowing additional depositions. The court also conducted sanctions hearings.

Discovery disputes continued throughout the six-month continuance, and the court appointed a discovery master to resolve these disputes.

On September 8, 2003, all parties announced they were ready to proceed to trial. The trial lasted three months. During trial, the jury considered liability of Brown, RRSI, and several designated nonparties. On December 8, 2003, the jury returned its verdict finding Brown liable for negligence, but not for nuisance or trespass, and finding RRSI not liable on any claims. It awarded $2,288,450 in damages: $1,144,225 for homeowners' annoyance and discomfort, and the same amount for the loss of use and enjoyment of their properties. The jury also apportioned fault between Brown and designated nonparties, finding Brown 44% responsible, Colorado Department of Transportation (CDOT) 45%, Polka Dot Cleaners 7%, Farm Crest 3%, and Al Brewer's Auto Service (Brewer) 1%. It did not award punitive damages.

Following the receipt of the verdict, the court continued the sanctions hearing and awarded fees and costs to homeowners and RRSI for their work required during the continuance.

Homeowners then filed a motion for a new trial pursuant to C.R.C.P. 59 and 60, which the trial court denied.

Thereafter, Brown requested an award of costs, which the court granted pursuant to § 13-17-202(1)(a)(II), C.R.S.2006, because Brown had offered to settle for an amount greater than the damages awarded to homeowners. The court entered judgment against Brown in the amount of $2,056,581.53 after accounting for the fault of nonparties, and it awarded homeowners prejudgment interest on their damages at 9% per annum, accruing from November 23, 1994. This appeal and cross-appeal followed.

II. Nonparty Designations

Homeowners contend that the trial court erred by allowing what they characterize as Brown's and RRSI's untimely and deficient nonparty designations. We disagree.

We note at the outset that, as to this and homeowners' other contentions, we will not address arguments made for the first time in their reply brief. See Colo. Korean Ass'n v. Korean Senior Ass'n, 151 P.3d 626, 629 (Colo.App.2006).

Under § 13-21-111.5(3)(b), C.R.S. 2006, a defendant may designate nonparties at fault, and the jury may consider those nonparties when apportioning liability. Barton v. Adams Rental, Inc., 938 P.2d 532, 535 (Colo.1997). Nonparty designation "ensures that parties found liable will not be responsible for more than their fair share of the damages." Pedge v. RM Holdings, Inc., 75 P.3d 1126, 1128 (Colo.App.2002).

Designations must contain identifying information for the nonparty in addition to "a brief statement of the basis for believing such nonparty to be at fault." Section 13-21-111.5(3)(b). Our supreme court has interpreted this language to require defendants designating nonparties to allege sufficient facts to "satisfy all the elements of a negligence claim." Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 81 (Colo.2001); see also Stone v. Satriana, 41 P.3d 705, 709 (Colo.2002)(interpreting Redden to require that designations "establish a prima facie case" against the nonparty).

Whether nonparty designations comply with § 13-21-111.5, C.R.S.2006, presents a question of law that we review de novo. Pedge, supra, 75 P.3d at 1128.

Here, Brown and RRSI filed their first set of designations on November 13, 2000, and March 19, 2001, respectively (initial designations). After these designations were filed, the supreme court announced its decision in Redden, and, based on that decision homeowners asked the court to permit Brown and RRSI to file conforming supplemental designations, which they did in April 2002 (supplemental designations).

A. Timeliness

Homeowners argue that the trial court abused its discretion in accepting the initial designations, which were not timely filed. We disagree.

Under the Colorado statute, the "[n]egligence or fault of a nonparty may be considered . . . if the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action unless the court determines that a longer period is necessary." Section 13-21-111.5(3)(b).

We review a trial court's decision to extend the ninety-day deadline for filing nonparty designations for abuse of discretion because "[t]rial courts have the responsibility of managing their dockets, moving cases toward completion, and assuring that parties comply with deadlines." Redden, supra, 38 P.3d at 84. "A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair." E-470 Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230 (Colo. App.2006).

1. Application of C.R.C.P. 6(b)

We reject homeowners' argument that the trial court erred because it did not require Brown or RRSI to demonstrate "excusable neglect" pursuant to C.R.C.P. 6(b)(2) prior to accepting the initial designations.

By its own terms, C.R.C.P. 6(b) applies only to requests to enlarge deadlines set forth in the rules of civil procedure, a notice under those rules, or a court order. The rule does not apply to statutorily established time periods. See C.R.C.P. 6(b).

Section 13-21-111.5(3)(b) expressly permits a court to accept nonparty designations filed outside the ninety-day period when it determines that "a longer period is necessary." It does not require a determination that an untimely filing was also the product of excusable neglect. See § 13-21-111.5(3)(b). And when a statute clearly provides an alternative procedure or requirements, the provisions of C.R.C.P. 6 do not apply. See State Bd. of Registration for Prof'l Eng'rs v. Brinker, 948 P.2d 96, 99 (Colo.App.1997)(where a statute provides that a filing period ends in a certain number of days after mailing, the three-day "mailing window" provision of C.R.C.P. 6(e) does not apply).

2. Late Filing

We also reject homeowners' argument that the trial court abused its discretion by allowing Brown and RRSI to file their initial designations outside the statutory period.

Here, after requesting extensions to file their initial designations, Brown and RRSI filed them approximately four and seven months late, respectively. The trial court accepted the untimely filings.

However, while designation of nonparties in this case required complex scientific analysis of potential sources of groundwater contamination, the initial designations were filed more than two years before the original trial date. Also, they were filed shortly after homeowners and Brown filed their initial C.R.C.P. 26 disclosures in October 2000. Brown's initial...