Elk River Associates v. Huskin

• Decision Date: 14 June 1984
• Docket Number: No. 81CA1073,81CA1073
• Citation: 691 P.2d 1148
• Parties: ELK RIVER ASSOCIATES, a Colorado limited partnership, Donald W. Cook and Eugene Frink, as general partners of Elk River Associates and as limited partners of Elk River Associates, Donald W. Cook and Eugene Frink as representative parties in behalf of the class of persons who are limited partners of Elk River Associates, to-wit: Fred J. Beck, Jack R. Smolenski, Rex Willoughby, Eugene H. Frink, John Armstrong, Bernard T. Witkin and Sharon Witkin as joint tenants, Robert W. Echter, Echters Greenhouses, Inc., Employees Pension Trust, C. Grant Wilkins, Merrimax Co., J.C. McBride, Managing Partner, James G. McBride, Robert R. Spencer, Joseph O. Broughton, M.D., Jerry D. Tice, John F. Fox, Hugh W. Taylor and Penny S. Taylor as joint tenants, Donald W. Cook, Ernest M. Bond, Jr. and Elinor B. Bond as joint tenants, Frederick A. Dunn and Helen J. Dunn as joint tenants, Gilbert C. Frye and Elizabeth C. Frye as joint tenants, Clarence A. Nolph and Joan D. Nolph as joint tenants, and Thomas I. Weston, Plaintiffs-Appellants and Cross-Appellees, v. J. David HUSKIN and Huskin & Co., Defendants-Appellees and Cross-Appellants. . I
• Court: Colorado Court of Appeals

Page 1148

691 P.2d 1148

ELK RIVER ASSOCIATES, a Colorado limited partnership, Donald W. Cook and Eugene Frink, as general partners of Elk River Associates and as limited partners of Elk River Associates Donald W. Cook and Eugene Frink as representative parties in behalf of the class of persons who are limited partners of Elk River Associates, to-wit: Fred J. Beck, Jack R Smolenski, Rex Willoughby, Eugene H. Frink, John Armstrong Bernard T. Witkin and Sharon Witkin as joint tenants, Robert W. Echter, Echters Greenhouses, Inc., Employees Pension Trust, C. Grant Wilkins, Merrimax Co., J.C. McBride Managing Partner, James G. McBride, Robert R. Spencer, Joseph O. Broughton, M.D., Jerry D. Tice, John F. Fox, Hugh W. Taylor and Penny S. Taylor as joint tenants, Donald W. Cook, Ernest M. Bond, Jr. and Elinor B. Bond as joint tenants, Frederick A. Dunn and Helen J. Dunn as joint tenants, Gilbert C. Frye and Elizabeth C. Frye as joint tenants, Clarence A. Nolph and Joan D. Nolph as joint tenants, and Thomas I. Weston, Plaintiffs-Appellants and Cross-Appellees, v. J. David HUSKIN and Huskin & Co., Defendants-Appellees and Cross-Appellants.

No. 81CA1073.

Colorado Court of Appeals, Div. I.

June 14, 1984.

Rehearing Denied July 26, 1984.

Butler, Landrum, Pierce & Turner, P.C., Robert G. Pierce, Lakewood, for plaintiffs-appellants and cross-appellees.

Hamil & Hitt, P.C., J. Lawrence Hamil, Denver, for defendant-appellee and cross-appellant J. David Huskin.

Head, Moye, Giles & O'Keefe, John E. Moye, Denver, for defendant-appellee and cross-appellant Huskin & Co.

BABCOCK, Judge.

Following trial to a jury in this class action, special verdicts were returned in favor of plaintiffs and against defendant Huskin and Company (Company) on plaintiffs' claims for deceit based on fraud arising from false representations and from concealment or nondisclosure of material facts in connection with the offering for sale of limited partnership units in Elk River Associates (limited partnership). Plaintiffs also prevailed on their claim against the Company and defendant J. David Huskin (Huskin) for constructive fraud based on breach of confidential relationship. Damages in the amount of $236,400, representing the difference between the actual value of the property as of January 28, 1972, and its value had the representations been true or the nondisclosed facts not existed, were awarded to plaintiffs.

After hearing post-trial motions, the trial court entered judgment in favor of those plaintiffs who testified at trial and against the Company in the amount of $166,793.33 on plaintiffs' claims for actual fraud. Judgment notwithstanding the verdict was granted in favor of the Company and Huskin on plaintiffs' claims of constructive fraud on the ground that such claims were barred by the applicable statute of limitation. Plaintiffs appeal, challenging the amount of damages awarded to plaintiff C. Grant Wilkins, the dismissal of the nontestifying plaintiffs' claims, and the propriety of the trial court's entry of judgment notwithstanding the verdict on their constructive fraud claims. Huskin and the Company cross-appeal raising numerous contentions of error. We affirm in part, reverse in part, and remand with directions.

I.

On December 1, 1982, the Company filed a motion to dismiss plaintiffs' appeal on the ground that plaintiffs had accepted the benefits of the judgment entered by the trial court. The motion was denied without opinion, but with leave to renew it upon oral argument. The motion, having been renewed and reconsidered, is hereby denied.

The general rule is that a party who has accepted the benefit of a judgment may not seek reversal of that judgment on appeal. In re Marriage of Jones, 627 P.2d 248 (Colo.1981); Farmers Elevator Co. v. First National Bank, 181 Colo. 231, 508 P.2d 1261 (1973). Underlying this rule is the possibility that the appeal may lead to a result showing that the party is not entitled to what he has received under the judgment from which appeal is taken. In re Marriage of Jones, supra; Wilson v. Auto Owners Ass'n, 152 Colo. 431, 382 P.2d 815 (1963). However, if the provisions of the judgment from which the appeal is taken are not mutually dependent on those provisions from which the party has accepted benefits, and reversal of the former will not require reversal of the latter, an appeal may lie. Paulu v. Lower Arkansas Valley Council, 655 P.2d 1391 (Colo.App.1982); see In re Marriage of Jones, supra.

Here, plaintiffs seek reversal of the trial court's entry of judgment notwithstanding the verdict on their claim of constructive fraud. Reversal of this judgment will not require that the judgment entered upon jury verdicts on plaintiffs' claims for actual fraud also be reversed. Therefore, plaintiffs' attempt to execute the judgment entered with respect to their claims for actual fraud does not bar appeal of their constructive fraud claims. And, since the appeal of matters relating to those plaintiffs who did not testify at trial and to the amount awarded to plaintiff Wilkins will not require reversal of the judgment in favor of the remaining plaintiffs on their actual fraud claims, they are properly before us on appeal.

II.

This matter is before us on an agreed statement of facts. In the fall of 1971, Huskin and the Company decided to purchase real property for syndication by offering limited partnership units to investors. On December 22, 1971, the Company conducted a sales meeting during which its salesmen were given oral and written information concerning the property as well as the limited partnership. The written information consisted of a "preliminary offering circular or information sheet" prepared by an officer of the Company which was to be used in contacting investors, but not to be distributed to them. The initial offer and sale of units of the limited partnership commenced that day and continued through May 1972.

On January 24, 1972, the limited partnership "offering circular" was sent to those who had purchased units, plaintiffs herein. The information contained in the offering circular, together with that contained in the preliminary offering circular or information sheet, forms the basis of plaintiffs' complaint, i.e., misrepresentations as to access to the property, topography of the property, exclusions from the property, and non-disclosure or concealment of an easement in favor of the Colorado Game, Fish and Parks Commission.

When sale of the units commenced, Huskin and the Company were named as the proposed general partners of the limited partnership. The certificate of limited partnership was not signed by them until January 25, 1972; from that time until July 22, 1974, they remained general partners. However, in September 1973, the Company was placed in receivership and its records were given to the Company's receiver. In March 1975, these records were turned over to certain plaintiffs, and in 1976, two of the plaintiffs became general partners.

In July 1973, plaintiffs made an additional capital contribution to the limited partnership in the amount of approximately $41,000; in July 1974, another capital contribution of approximately $22,000 was made to the Company's receiver. Following removal of Huskin and the Company as general partners and termination of the receivership, plaintiffs continued to make capital contributions to the limited partnership. These contributions, some of which were made after discovery of the alleged fraud, were used to pay expenses of the limited partnership and amounts due on the note secured by the deed of trust on the property owned by the limited partnership.

Following commencement of this class action on March 10, 1976, the limited partnership sold the property to a third party, leaving the limited partnership with a promissory note secured by a deed of trust as its only asset. The proceeds of the sale, approximately $34,000, were distributed to plaintiffs. Thereafter in October 1980, plaintiffs' claims were tried to a jury.

A.

The jury was instructed that a confidential relationship existed between plaintiffs and defendants. However, following hearing on the post-trial motions, the trial court determined that had it not granted defendants' motion for judgment notwithstanding the verdict, it would have granted defendants' motion for new trial on the basis that it erred in instructing the jury that a confidential relationship existed as a matter of law. Plaintiffs contend that the trial court's error, if any, was in failing to instruct the jury that a fiduciary, rather than a confidential, relationship existed between the parties as a matter of law. To the contrary, defendants contend that the trial court's post-trial ruling was correct. We agree with plaintiffs.

Although the existence of a fiduciary or confidential relationship is generally a question of fact for the jury, Meyer v. Schwartz, 638 P.2d 821 (Colo.App.1981); Breeden v. Dailey, 40 Colo.App. 70, 574 P.2d 508 (1977), a general partner owes a fiduciary duty to the limited partners as a matter of law. Gundelach v. Gollehon, 42 Colo.App. 437, 598 P.2d 521 (1979). And, while formation of a limited partnership requires substantial compliance in good faith with the requirements of § 7-61-103, C.R.S. (then C.R.S.1963, 104-2-2), a fiduciary relationship between the parties to a limited partnership can attach during the negotiations which precede formal execution of the certificate of limited partnership. See Lucas v. Abbott, 198 Colo. 477, 601 P.2d 1376 (1979).

Therefore, we conclude that defendants owed a fiduciary duty as a matter of law to plaintiffs from the time that sale of limited partnership units commenced until defendants were removed as general partners of the limited partnership.

B.

In granting defendants' motion for judgment notwithstanding the verdict, the trial court concluded that the doctrine of equitable estoppel did not apply to toll the running of the statute of...