Board of County Com'rs of Adams County v. Berkeley Village

• Decision Date: 09 March 1978
• Docket Number: No. 76-747,76-747
• Citation: 580 P.2d 1251,40 Colo.App. 431
• Parties: , 24 UCC Rep.Serv. 975 The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ADAMS, State of Colorado, and the State Department of Highways, Division of Highways, State of Colorado, Petitioners, v. BERKELEY VILLAGE, a co-partnership, and Allen R. McKnight, as Treasurer of Adams County, Respondents, and United Bank of Denver National Association and USLife Life Insurance Company of Texas, Intervenors-Appellants, and Advance Mortgage Corporation and Clark, Martin and Pringle. . II
• Court: Colorado Court of Appeals

Page 1251

580 P.2d 1251

40 Colo.App. 431, 24 UCC Rep.Serv. 975

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ADAMS State of Colorado, and the State Department of Highways, Division of Highways, State of Colorado, Petitioners, v. BERKELEY VILLAGE, a co-partnership, and Allen R. McKnight as Treasurer of Adams County, Respondents and United Bank of Denver National Association and USLife Life Insurance Company of Texas, Intervenors-Appellants and Advance Mortgage Corporation and Clark, Martin and Pringle.

No. 76-747.

Colorado Court of Appeals, Div. II.

March 9, 1978.

Rehearings Denied April 13, 1978.

Certiorari Denied July 3, 1978.

Holme, Roberts & Owen, Joseph E. Meyer, III, Jo Ann Soker, Denver, for intervenors-appellants United Bank of Denver National Ass'n. Law, Nagel & Clark, P. C., William G. Horlbeck, Denver, for intervenors-appellants USLife Life Ins. Co. of Texas.

Hellerstein, Hellerstein & Shore, P. C., Stephen A. Hellerstein, Brad L. Doores, Denver, for intervenors-appellants Advance Mortg. Corp.

Clark, Martin & Pringle, Bruce D. Pringle, Denver, for intervenor-appellee Clark, Martin and Pringle.

SILVERSTEIN, Chief Judge.

This is an appeal from a judgment which determined the rights of various claimants to the proceeds of a condemnation proceeding brought by the Board of County Commissioners of Adams County and the Colorado State Department of Highways against Berkeley Village, Inc., a Colorado corporation, and Berkeley Village, a co-partnership. The parties to this appeal are intervenors in the eminent domain action who claimed an interest in the condemnation award. The trial court determined the priorities of the claimants to be: (1) Clark, Martin & Pringle (CM&P), (2) USLife Life Insurance Company of Texas (USLife), (3) Advance Mortgage Corporation (Advance), and (4) United Bank of Denver National Association (United). We affirm as to the priority of CM&P, and reverse as to the other priorities.

The facts pertinent to this appeal are: Mr. Paul Fregolle and Mr. Robert Jump executed a partnership agreement in May 1952 which stated the name of the partnership to be Berkeley Village Mobile Manor. On June 12, 1973, they executed an amendment to the partnership agreement which stated, "The trade name has been Berkeley Village Mobile Manor and Berkeley Village and from and after June 12, 1973, shall be Berkeley Village West Mobile Manor." The agreements were recorded with the Adams County Clerk and Recorder. No trade name affidavits were ever filed by the partnership.

On October 20, 1972, title to the condemned property was conveyed by Berkeley Village, Inc., a corporation wholly owned by Fregolle and Jump, to "Berkeley Village, a co-partnership." On January 12, 1973, the condemnation petition was filed, together with a stipulation to deposit $865,000, with the right of the landowner to withdraw up to $795,000. On March 27, 1973, $784,135 was withdrawn, part of which was disbursed to third persons in order to release claims then existing against the title to the condemned land.

On September 26, 1975, an order was entered which determined the total amount to be paid for the land was $1,015,000, and that an additional amount of $150,000 had been deposited with the court. Between January 12, 1973, and September 26, 1975, the following events took place.

Clark, Martin & Pringle Claim

On February 16, 1973, the law firm of Berge, Clark & Martin, predecessor to Clark, Martin & Pringle, entered its appearance in the condemnation proceedings on behalf of Berkeley Village, Inc., and Berkeley Village, a co-partnership, pursuant to an agreement entered in January 1973. That agreement provided that the law firm was to receive one-third of the difference between the condemnation amount already deposited and the amount ultimately awarded. The law firm continued its representation throughout the remainder of the condemnation proceedings.

On November 25, 1975, CM&P filed a notice of attorney's lien, and on December 15, 1975, filed its claim for $54,276.82, asserting a lien priority date of not later than its entry of appearance. By stipulation of the parties, the "validity and reasonableness" of the claim was agreed to, "the only issue in dispute on said claim being that of priority." The trial court awarded CM&P first priority.

(Hereafter, the respondent Berkeley Village a co-partnership, will be referred to as the "Partnership," except where the specific name used has a material significance).

The USLife Claim

The condemned land was part of a larger parcel owned by the Partnership which, in 1972, was being developed as a mobile home park. Temporary financing had been obtained for the project, and USLife and an affiliate had agreed to provide the permanent financing. The temporary loan was secured by a deed of trust on all the property. The condemnation reduced the value of the security, which was also to secure the permanent loan. In order to make up the difference and preserve the permanent financing, on March 27, 1973, the Partnership assigned all of its title and interest in the condemnation award up to $80,000, to whoever the holder of the trust deed would be at the time the final award was made. The Partnership retained the right to the interest earned by the $80,000. This assignment was discharged on March 5, 1974.

The consideration for this discharge was the execution of a second assignment by the Partnership of the $80,000. This assignment to USLife was executed on June 20, 1974, and on the same date the Partnership executed a deed of trust to USLife and an affiliate, to the uncondemned part of the Partnership's property. The second assignment and deed of trust were recorded in Adams County in June 1974.

At the hearing on the claims, USLife stated it was relying on the second assignment as the basis for its claim. However, the trial court awarded USLife the second priority on the basis of the first assignment.

The Advance Mortgage Claim

The partners, Jump and Fregolle, were also developing a mobile home park on land owned by another partnership, Berkeley Village East Mobile Manor. Advance loaned that partnership funds for the development on July 11, 1974. By early 1975 the borrower had defaulted in its payments to Advance, and "in March or April" the parties executed an Amended Loan Agreement dated "as of January 1, 1975," wherein the borrower agreed to "cause Berkeley Village, a co-partnership and Berkeley, Inc." to assign all the amount determined to be due from the condemnation action, as additional security.

Pursuant to this agreement, the Partnership and Berkeley Village, Inc., by instrument dated "as of January 1, 1975," assigned the proceedings due or to become due from the condemnation to Advance. On July 3, 1975, Advance filed three financing statements with the Secretary of State, in which it was named as the secured party. The debtors named in the first statement were "Paul E. Fregolle and Robert G. Jump, Jr., d/b/a Berkeley Village, a Co-Partnership," in the second, "Berkeley Village, a Co-Partnership," and in the third, "Berkeley Village, Inc."

The trial court, without any finding as to the exact date on which the assignment was executed, assigned the third priority to Advance.

The United Bank Claim

In 1974, United Bank had loaned the Partnership funds to finance construction of Berkeley Village Shopping Center, adjacent to the condemned land. In March 1975, additional financing was needed, and furnished by United Bank. To secure this additional financing, the Partnership executed a General Security Agreement on March 11, 1975, in which it assigned the proceeds from the condemnation action up to $479,000 to the bank.

On March 28, 1975, the bank filed a financing statement with the Secretary of State, in which the debtor named was Berkeley Village West Mobile Manor. The bank also obtained, as obtained, as additional security, a deed of trust on land owned by the Partnership.

The trial court held that, since the fund was insufficient to pay all the claims given priority over the United Bank, it was unnecessary to determine the amount or priority of the United Bank claim.

I.

The trial court based its assignment of priorities to the three security interest claimants on two conclusions, namely, that Berkeley Village and Berkeley Village West Mobile Manor were two separate partnerships and that the Secured Transactions title of the Uniform Commercial Code, § 4-9-101 et seq., C.R.S.1973, did not apply to the assignments under which those claimants based their rights to the proceeds. We disagree with both conclusions.

The determination of the issues here is based on documentary evidence, and the interpretation thereof. Therefore, we are not bound by the trial court's findings and conclusions thereon. Meier v. Denver U. S. National Bank, 164 Colo. 25, 431 P.2d 1019 (1967); Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85 (1971).

The evidence is undisputed that from May 2, 1972, until June 12, 1973, the partnership operated under the trade names of Berkeley Village Mobile Manor and Berkeley Village, and thereafter under the trade name Berkeley Village West Mobile Manor. The use of these trade names was a matter of record, the partnership agreement and the two amendments having been recorded with the Adams County Clerk and Recorder. Also, the consequences of a failure to file a trade name affidavit pursuant to § 7-71-101, C.R.S.1973, are limited to the penalties contained in § 7-71-102, C.R.S.1973, and thus the absence of such affidavits here does not affect the rights of the parties, nor the right of the partnership to do business. Wallbrecht v. Blush, 43 Colo. 329, 95 P. 927 (1908).

It is clear that only one partnership was involved. Therefore, the fact that the various assignments and other documents were signed by the partners using one or the other of the trade names does not affect the validity of the documents. Nor, under the circumstances of this case,...