Duke v. Pickett, 22816
| Decision Date | 17 February 1969 |
| Docket Number | No. 22816,22816 |
| Citation | 168 Colo. 215,451 P.2d 288 |
| Parties | LeRoy A. DUKE and Frances K. Duke, Plaintiffs in Error, v. Orville C. PICKETT and Gentlebreeze Mobilehome Court, Inc., Defendants in Error. |
| Court | Colorado Supreme Court |
Tinsley, Alperstein, Frantz & Plaut, Mansur Tinsley, Lakewood, for plaintiffs in error.
C. Hamilton Evans, Denver, for defendants in error.
In an action to rescind a sales transaction consummated through a trade of assets between the litigating parties, the trial court held that the plaintiffs--they are plaintiffs in error here--'did not sustain their burden of proof in the necessary elements in a fraud false representation action.' Our resolution of this writ of error hinges on whether the lower court misapprehended the legal effect of the uncontroverted evidence and thus failed to apply the law to the facts. We hold that the court erred.
Plaintiffs--the Dukes--transferred a mobilehome court they owned to the defendants--the Picketts--in exchange for a promissory note secured by a chattel mortgage on furniture and appliances in, and a second deed of trust on, an apartment building in east Denver. Each of the Dukes testified substantially the same. They stated that at a meeting between the parties, when the agreement to make the exchange was made, the Picketts represented that: (a) the chattel mortgage on the appliances and furniture was a first lien; (b) the makers of the promissory note--Ellsworth and Vera Alsop--were substantial people who had other businesses and properties and that they were so well-fixed financially that they could pay the note even if the apartment house became vacant; (c) that the makers could make payments from other income and money that they already had. Mrs. Pickett was quoted as saying that the note was so good that she wouldn't think of discounting it even one penny and would be willing absolutely to guarantee it 100%. The Dukes made no investigation of their own and closed the transaction the day following the initial meeting of and the discussion by the parties.
Two months following the exchange--only two payments were made to the Dukes by the Alsops on the promissory note--the Alsops defaulted, and the Dukes further learned that at the same time the holders of the first deed of trust were commencing foreclosure on the apartment house. The Dukes tried to forestall the foreclosure by paying the sum of $2340 to the holders of the superior lien. Nevertheless, the foreclosure followed. At about the same time the Dukes also discovered that the holders of the first deed of trust on the building also had a first and prior lien on all of the refrigerators in the various apartments.
In what we hold to be apt time under the circumstances, the Dukes sent a letter to the Picketts electing to rescind. At a meeting of the parties, the Picketts agreed to re-exchange the properties on the condition that the Dukes make all delinquent payments to the holders of the first mortgage and chattel mortgage on the apartment house and the fixtures. The Dukes refused to accept the conditions imposed, and the law suit followed.
At the trial the...
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Antolovich v. Brown Group Retail, Inc., 04CA1528.
...party's failure to plead an affirmative defense in its responsive pleading constitutes a waiver of that defense. Duke v. Pickett, 168 Colo. 215, 218, 451 P.2d 288, 290 (1969). "[A]n affirmative defense is a legal argument that a defendant, who is capable of being sued, may assert to require......
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Eckley v. Colorado Real Estate Com'n
...did not possess, and thus constituted a misrepresentation. See Restatement (Second) of Torts § 526(c) (1977); Duke v. Pickett, 168 Colo. 215, 218, 451 P.2d 288, 290 (1969). We also agree that the misrepresentation was substantial, and that substantial evidence supports the hearing officer's......
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...that do not appear in his or her answer. Town of Carbondale v. GSS Props., LLC , 169 P.3d 675, 681 (Colo. 2007) ; Duke v. Pickett , 168 Colo. 215, 218, 451 P.2d 288, 290 (1969). But "an opposing party who fails to object to an untimely affirmative defense and instead chooses to litigate the......
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Caldwell v. Barnes, 13-93-699-CV
...appellant has waived any claims regarding that court's lack of jurisdiction. See COLO. R. CIV. P. 8(h), 12(b); Duke v. Pickett, 168 Colo. 215, 451 P.2d 288, 290 (1969); Treadwell v. Dist. Court In & For Denver, 133 Colo. 520, 297 P.2d 891 (1956); St. Vrain Dev. Co. v. F & S Dev. Co., 28 Col......
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Rule 12 DEFENSES AND OBJECTIONS — WHEN AND HOW PRESENTED — BY PLEADING OR MOTION — MOTION FOR JUDGMENT ON PLEADINGS.
...8(c) and section (h) of this rule, a party waives all defenses and objections which he does not present in his answer. Duke v. Pickett, 168 Colo. 215, 451 P.2d 288 (1969). Laches and waiver must be affirmatively set forth in the answer under C.R.C.P. 8(c) and section (h) of this rule. Duke ......
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Rule 8 GENERAL RULES OF PLEADING.
...of Rev., 652 P.2d 1067 (Colo. 1982). A party waives all defenses and objections which he does not present in his answer. Duke v. Pickett, 168 Colo. 215, 451 P.2d 288 (1969). Improper assertion of affirmative defense must be objected to, or it is waived. By arguing the merits of defendant's ......