Central City Opera House Ass'n v. Brown

• Decision Date: 09 August 1976
• Docket Number: No. C--810,C--810
• Citation: 553 P.2d 64,191 Colo. 372
• Parties: CENTRAL CITY OPERA HOUSE ASSOCIATION, a Colorado Corporation, Petitioner, v. Robert J. BROWN, Respondent.
• Court: Colorado Supreme Court

Page 64

553 P.2d 64

191 Colo. 372

CENTRAL CITY OPERA HOUSE ASSOCIATION, a Colorado Corporation, Petitioner, v. Robert J. BROWN, Respondent.

No. C--810.

Supreme Court of Colorado, En Banc.

Aug. 9, 1976.

Hindry & Meyer, P.C., Charles H. Jacobs, Robert D. Showalter, William F. McGlone, Denver, for petitioner.

Gould, Moch & Bernick, Richard J. Bernick, Denver, for respondent.

GROVES, Justice.

We granted certiorari to review the opinion of the Colorado Court of Appeals in Brown v. Central City Opera House Association, Colo.App., 542 P.2d 86. We affirm the court of appeals' opinion with some modification.

The respondent, Brown, was employed by the petitioner, Central City Opera House Association (called the Association), for 22 years, during the last 18 of which he was the Association's general manager. In about September 1970 Brown ceased being general manager. The Association made payments to him of $125 a month from September 30, 1970 through December 30, 1972, at which later time all payments stopped. Brown brought action against the Association, claiming that it was under contract to pay him $125 per month until his 75th birthday on October 5, 1987, or until his death, whichever first occurred.

The plaintiff made the following allegation in his complaint:

'2. On plaintiff's retirement as such general manager, the defendant agreed to pay him a Pension of $125 per month from September 30, 1970, until plaintiff's 75th birthday, August 5, 1987, or plaintiff's death, whichever first occurs. In consideration of this, the plaintiff was to be available as a consultant to the defendant as required.' (Emphasis added)

The evidence in the case consisted solely of the testimony of Brown and of four exhibits which were admitted into evidence. ¹ Only one of these exhibits is material so far as this review is concerned. That exhibit was a letter to Brown by Myron D. Neusteter, who was president of the Association, which letter will be mentioned later.

Under the testimony of Brown, he and Neusteter had lunch together in August of 1970. The record contains the following testimony of Brown as to the conversation at that luncheon:

'q Now, what did Mr. Neusteter tell you on that occasion?

'A He told me that after a discussion with the Executive Committee it was felt that it was time to make a change in the management of Central City Opera; that I was not being fired; that there was no complaint against me, but that it was time they felt for a change. After all, I had been associated with the Opera Association for 22 years.

'They had new ideas, new plans, and it was felt that it was now a proper time to make a change, and I agreed with him on that.

'Q Was anything said about you continuing with the Association in any capacity?

'A Yes; he told me that he would like for me to remain as a consultant, and I told him that I was very happy to do so, and in fact would be honored to be considered as a consultant, would help in every way I could possibly do.

'Q Was there an agreement as to the continuing payments to you by the Association?

'A He told me that I need not worry about the $125.00 a month because that had been approved and taken care of by the Executive Committee and was no longer any problem, and that would continue.'

On redirect examination Brown testified that at the luncheon it was specified that the $125 monthly payments 'were to go until I was 75 years of age.'

The letter from Neusteter to Brown was dated February 24, 1971. Its text read as follows:

'This year, as you may know, the Association has changed auditors. Our new auditors are Lybrand Ross and Montgomery. They have spent many difficult hours reconciling books and records kept in prior years to accommodate to our new bookkeeping methods.

'We have been advised by our auditors that on several occasions they have called you for explanations or help in reconciling these records, and that at no time have they received your cooperation. I was really quite surprised when I was told this as you have always been most willing to help and cooperate with the Association. Also, I need not remind you that the stipend which the Association has granted you was granted with the understanding that you would continue to act in an advisory capacity, and that you would be on reasonable call to the Association whenever necessary.

'There may be many occasions when either Mr. Dahlgren, Mr. Alexander, Mr. Kelly, or I, or our designated representatives may want to call upon you for help, advice, or information relative to past years, and I am hopeful that you will be willing and ready to furnish it whenever necessary.'

At the close of the plaintiff's case, the district court granted an oral motion of defendant for dismissal of the action. The transcript does not contain the motion as made by counsel for the defendant. ²

The ruling of the trial court was as follows:

'Having listened to the testimony adduced on behalf of the plaintiff's case in chief, considering the complaint and the arguments of counsel, the Court in examining this complaint notes that in Paragraph 2 thereof the plaintiff alleges that on plaintiff's retirement as such general manager, the defendant agreed to pay him a pension of $125.00 per month from September 30, 1970, until plaintiff's 75th birthday, August 5, 1987, or plaintiff's death, whichever first occurs. In consideration of this the plaintiff was to be available as a consultant to the defendant as required.

'In examining the testimony that has been adduced, I find the plaintiff testifying that sometime in August of 1970 he met at the 26 Club for a luncheon with Mr. Neusteter concerning the matter of his termination as general manager for the Association, the defendant herein; at this time there was discussion as to the reasons why the plaintiff was told the Executive Committee felt it was time to make a change in management; that the plaintiff said he agreed with this because of the new ideas, the new plans, and it would be proper to have a change.

'Further, there was discussion that the Association would like to have the plaintiff to remain as a consultant, and the plaintiff said he was glad to do this and would help in every was he could.

'This is really the gist of what took place at the luncheon of August, 1970, concerning termination of plaintiff as general manager. Nowhere in this record do I find any discussion about any pensions, merely the matter of being a consultant, and based upon the record as made, it would be the finding of the Court that the defendant's oral motion for judgment of dismissal for failure of plaintiff to make a prima facie case should be, would be and hereby is granted. Judgment of dismissal to enter.'

The court of appeals reversed for two reasons. ³ The first was that 'the trial court erred in dismission the action merely because the complaint referred to a pension, while the evidence supported a contract for a consultant's fee.' The second basis was stated as follows:

'Furthermore, since the evidence was sufficient to show a contract between the parties and its breach by defendant, the court erred in dismissing the complaint at...