Atchison v. City of Englewood

• Decision Date: 05 February 1973
• Docket Number: No. C--191,C--191
• Citation: 506 P.2d 140,180 Colo. 407
• Parties: Alfred P. ATCHISON and Ida Mae Atchison, Petitioners, v. The CITY OF ENGLEWOOD, a municipal corporation, and The Martin MariettaCorporation, a Maryland corporation, Respondents.
• Court: Colorado Supreme Court

Page 140

506 P.2d 140

180 Colo. 407

Alfred P. ATCHISON and Ida Mae Atchison, Petitioners, v. The CITY OF ENGLEWOOD, a municipal corporation, and The Martin MariettaCorporation, a Maryland corporation, Respondents.

No. C--191.

Supreme Court of Colorado, En Banc.

Feb. 5, 1973.

Ralph A. Cole, William O. Perry, Thomas C. Singer, Denver, for petitioners.

Dawson, Nagel, Sherman & Howard, Michael E. Reidy, Raymond J. Turner, Denver, for respondent Martin Marietta Corporation.

Bernard V. Berardini, Englewood, for respondent City of Englewood.

GROVES, Justice.

In 1949 the petitioners (Atchisons) sold certain property to the respondent City of Englewood (City). The documents involved in the sale gave the Atchisons a preemptive right to repurchase the property. In 1956 the City leased the property to the respondent Martin Marietta Corporation (Martin) and granted Martin an irrevocable option to purchase the property during the life of the lease. This lease was recorded in 1966 and the option was exercised by Martin.

The plaintiffs then instituted an action for declaratory judgment (first action), seeking interpretation of the 1949 documents granting the preemptive right to repurchase. The prayer of the complaint continued as follows:

'(F)urther declaring that the defendant City has no right to attempt to dispose of said premises without first complying with provisions of its agreement to give the plaintiffs 60 days notice in writing within which plaintiffs can exercise the same option and further declaring the rights, if any, of the defendant Corporation to be subordinate to the rights of the plaintiffs . . . and for such other, further and different relief as to the Court may seem meet and proper.'

The City and Martin moved for summary judgment and the motions were granted on the ground that the preemptive right was void as a violation of the rule against perpetuities. The Atchisons moved for a new trial, asserting that they were entitled to other remedies including rescission, reformation, damages or specific performance. This motion was denied and the property was transferred to Martin.

On appeal, in Atchison v. Englewood, 170 Colo. 295, 463 P.2d 297 (1969), this court affirmed the trial court ruling that the preemptive right to repurchase was void as a violation of the rule against prepetuities. In regard to the Atchisons' claim that they were entitled to other forms of relief, we stated:

'Plaintiffs argue that, even if the preemptive right is violative of the rule against perpetuities, they are entitled to relief in the form of rescission. The first mention of rescission in the case was in the eleventh ground contained in the motion for new trial. This was to the effect that the court should not have granted summary judgment under the rule against perpetuities when the record disclosed facts warranting relief for specific performance, rescission, reformation, fraud, damage, unjust enrichment and failure of consideration. This was an action for a declaratory judgment as to the validity of the plaintiffs' preemptive rights. It was presented to the trial court on that basis and neither this statement in the motion for new trial nor fleeting mention of it in the original brief filed here changed the nature of the case. For all practical purposes, this new theory in form of relief was first argued nearly a year after the case was at issue here. Until then the plaintiffs sought solely to have a determination that their pre-emptive right was enforceable. Considering all the circumstances, we think the presentation of this request for rescission came too late, and we now sustain the defendants' objection to that effect.'

On petition for rehearing, this court was evenly divided and, therefore, the petition was denied. A dissent was issued in which the view was expressed that the matter should be returned to the trial court for further proceedings on issues other than those relating to the application of the rule against perpetuities.

Following the denial of the petition for rehearing, the Atchisons filed the present action against the City and Martin seeking: (1) reformation of the 1949 agreement to create a valid preemptive right and for specific performance thereof; (2) rescission of their 1949 conveyance to the City; (3) damages against the City for failure to grant a valid preemptive right; (4) damages against Martin for impairment of the contract between the Atchisons and the City; and (5) damages against the City and Martin for conspiracy to defeat the Atchisons' right to repurchase.

The City and Martin moved for summary judgment on the ground that the first action was Res judicata as to this action. The motion was granted by the trial court and, relying on our decision in Lane v. Page, 126 Colo. 560, 251 P.2d 1078 (1952), the Court of Appeals affirmed. Atchison v. Englewood, 30 Colo.App. 207, 492 P.2d 885 (1972).

C.R.C.P. 57(a) and C.R.S.1963, 77--11--1 authorize the granting of declaratory relief. This relief is in the nature of a declaration of rights, status and other legal relations; it may be either affirmative or negative in effect; and it may be granted whether or not further relief is or could be claimed. Subsequent to a declaratory judgment, further relief may be granted where necessary or proper 'by petition to a court having jurisdiction.' C.R.C.P. 57(h) and C.R.S.1963, 77--11--8. This relief does not appear to be limited by the language of the statute or the rule to the prevailing party in the declaratory judgment action.

In Lane v. Page, Supra, the plaintiffs brought an action seeking a declaratory judgment that they had a right to use a roadway and, if the use was allowed, an injunction preventing the defendant from interforing with such use. The trial court ruled against plaintiffs, but this court reversed on appeal and directed that the injunction issue. Plaintiffs subsequently brought an action for damages allegedly caused by the defendant prior to the first suit. Judgment was given for plaintiffs and, on appeal, this court held that the first declaratory judgment action was a bar to the subsequent suit for damages, stating:

'Had it been plaintiffs' intention to seek relief in damages, such relief could have been obtained in the former action as readily as in the latter, and by means of one suit instead of two. Since the court has always had authority to determine rights, status and other legal relations, incidental to a coercive judgment where such judgment is sought, the only new remedy or purpose afforded by the declaratory judgment statute is that of declaration of right, status or other legal relation in the absence of right or desire for coercive relief. Brindley v. Meara, 209 Ind. 144, 198 N.E. 301, 101 A.L.R. 682. The absence of request for further relief in the statement of claim and prayer, where right thereto has then accrued, is on its face a waiver of claim to such further and available relief. In Aetna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321, 325, referring to the discretion of the court in granting the remedy of declaratory judgment, the court said: 'It should not be accorded, however, to try a controversy by piecemeal, or to try particular issues without settling the entire controversy * * *.' We think it may be said with equal reason that a declaratory judgment should not be sought in order 'to try a controversy by piecemeal, or to try particular issues without settling the entire controversy.' Plaintiff should not be permitted by this device to split his cause of action and seek...