Friedman v. Colorado Nat. Bank of Denver

• Decision Date: 01 August 1991
• Docket Number: No. 90CA0248,90CA0248
• Citation: 825 P.2d 1033
• Parties: Don FRIEDMAN, individually, and as General Partner of Wikiup Mobile Home Club, a Colorado limited partnership, Petitioner-Appellee and Cross-Appellant, v. COLORADO NATIONAL BANK OF DENVER, individually, and as Personal Representative of the Estate of William Henry Conter, a/k/a William H. Conter, a/k/a William Conter, Deceased, Respondent-Appellant and Cross-Appellee. . III
• Court: Colorado Court of Appeals

Page 1033

825 P.2d 1033

Don FRIEDMAN, individually, and as General Partner of Wikiup Mobile Home Club, a Colorado limited partnership Petitioner-Appellee and Cross-Appellant, v. COLORADO NATIONAL BANK OF DENVER, individually, and as Personal Representative of the Estate of William Henry Conter, a/k/a William H. Conter, a/k/a William Conter Deceased, Respondent-Appellant and Cross-Appellee.

No. 90CA0248.

Colorado Court of Appeals Div. III.

Aug. 1, 1991.

As Modified on Denial of Rehearing Oct. 17, 1991.

Certiorari Granted March 10, 1992.

Horowitz & Berrett, P.C., Jay S. Horowitz, Kim E. Ikeler, Peter N. Simon, Denver, for petitioner-appellee and cross-appellant.

John S. Pfeiffer, Denver, for respondent-appellant and cross-appellee.

Opinion by Judge CRISWELL.

Defendant, Colorado National Bank of Denver (the bank), appeals from the judgment of the trial court decreeing the specific performance of an option contained within a limited partnership agreement. This option permitted plaintiff, Don Friedman, to purchase the interest of a deceased limited partner, whose estate is being administered by the bank. Plaintiff cross-appeals from the court's dismissal of his claims against the bank for tortious interference with contract, rejection of his claim for consequential damages, award to the bank of interest on the option price, and rejection of his request for attorney fees. We affirm in part, reverse in part, and remand with directions.

The decedent, William Conter, was a limited partner with plaintiff in the Wikiup Mobile Home Club (Wikiup), a Colorado limited partnership, which owned and managed a mobile home park. Plaintiff, as the general partner, was responsible for Wikiup's management. He was also one of two limited partners and divided the partnership profits equally with the decedent.

According to the partnership agreement:

"In the event of the death of a Limited Partner, the General Partner shall have the right to purchase the entire interest of such Limited Partner.

....

The price to be paid shall be equal to the value of the decedent's partnership interest as of his date of death as submitted for federal estate tax purposes. Payment shall be made in four equal semiannual installments, including interest, beginning four months after election to purchase, and any balance shall bear interest at 7% per annum.... Election to purchase the decedent's interest ... shall be made within 60 days after the delivery to the surviving partner of an appraisal, accompanied by a letter stating that the appraisal will be (or has been) used in the decedent's federal estate tax return...."

In 1981, the decedent executed a revocable trust and made his limited partnership interest a part of the corpus of that trust. He named the bank as trustee, and upon decedent's death on January 11, 1986, the bank was appointed the personal representative of his estate.

Upon decedent's death, plaintiff sought to exercise his option to purchase, but he and the bank initially could not agree upon the purchase price, and later, the bank refused to recognize plaintiff's right to purchase. Plaintiff then brought this action against the bank, in its representative capacity, seeking specific performance of the option provisions and consequential damages for the bank's breach of contract. In addition, he sought damages against the bank in its individual capacity for tortious interference with his contract with the decedent. The trial court dismissed plaintiff's claims for tortious interference prior to trial, and the trial proceeded before an advisory jury on the other issues raised.

After completion of the evidence, the court submitted special interrogatories to the jury as to whether the actions of the bank in determining the value of the limited partnership interest and in refusing to allow plaintiff to exercise his option rights involved either dishonesty, actions taken in knowing and reckless disregard of the rights of plaintiff, or failure to exercise an honest judgment. The jury returned a special verdict finding that the bank's actions were of such character, and the trial court adopted that finding as its own. The court also accepted the jury's finding as to the value of the partnership interest. Accordingly, the court entered a decree of specific performance, directing the sale of the limited partnership interest to plaintiff. However, the court rejected the jury's determination that plaintiff had sustained $1,300,000 in consequential damages, representing lost profits.

After adopting these findings, however, the court appointed a special master to determine whether the value of the partnership interest, as testified to by the appraiser whose opinion had been accepted by the court, included a valuation of all assets of the partnership or merely the value of the real estate owned by it. After further evidentiary hearings, the master found that the appraiser's value included all assets of the partnership, and the court adopted the master's report as a part of its findings.

I. Jurisdictional Questions

Each of the parties has asserted, for differing reasons, that this court lacks jurisdiction to proceed to a determination of the substantive issues raised in the appeal and cross-appeal. We are not persuaded by either assertion.

A.

The bank argues that, because the district judge who sat on the trial of this case resigned her position before entering a final judgment, the successor district judge lacked jurisdiction to enter a judgment and that we must, therefore, direct a new trial of all of the issues. We disagree.

If a judge, after sitting on a case and adopting findings of fact and conclusions of law, is, for any reason, unable to perform his or her duties in regard to that action, any other judge may perform those post-trial duties. C.R.C.P. 63; Faris v. Rothenberg, 648 P.2d 1089 (Colo.1982). While such successor judge may grant a new trial if he or she determines that the remaining post-trial duties cannot be performed, their performance is generally possible, unless their performance would require passing upon the credibility of witnesses heard by the initial judge. See Faris v. Rothenberg, supra.

It is, therefore, not necessary under C.R.C.P. 63 that the initial judge's order be a "final judgment." Once that judge has adopted sufficient findings of fact so that no further issues of credibility are presented, a successor judge may take those actions necessary to "finalize" an appropriate judgment.

Here, the judge who presided at trial adopted detailed written findings of fact and conclusions of law, which covered all issues except the question of the bank's claim that plaintiff did not come to court with "clean hands." However, the trial court had already expressly rejected this defense in its previous oral findings.

The rules require only that the findings be sufficient to give an appellate court an understanding of the grounds relied upon by the trial court. See In re Marriage of Van Inwegen, 757 P.2d 1118 (Colo.App.1988). In light of the oral and written findings adopted by the court here, that requirement was fulfilled by the initial judge.

Moreover, although the initial judge's order caused the court to retain jurisdiction for purposes of prescribing the forms of documents needed to implement the court's decree, we consider that provision to be nothing more than a means of enforcing its decree; such provision did not make the court's findings and conclusions incomplete for purposes of C.R.C.P. 63, nor did the later approval of such forms require any credibility resolution.

Likewise, the successor judge's determination of the propriety of the initial judge's award of attorney fees was a determination of a legal issue, which C.R.C.P. 63 allowed that judge to pass upon. See Faris v. Rothenberg, supra.

Hence, we conclude that the initial trial judge's order adopting findings of fact and conclusions of law was sufficient to allow the successor judge to perform the post-trial duties involved.

B.

In his jurisdictional challenge, plaintiff asserts that the issues raised by the bank in its appeal were rendered moot when the bank complied with the court's equitable decree to transfer the limited partnership to him. We disagree.

If an appellant voluntarily complies with an equitable decree or voluntarily satisfies a judgment at law, such action may render moot any appeal from that decree or judgment. Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424 (Colo.1990) (voluntary adoption of corporate dissolution plan in compliance with court order for dissolution).

However, mere compliance with an equitable decree does not, standing alone, evidence an intent voluntarily to comply with the decree so as to render any appeal from that decree moot. This is so because:

"Plaintiff cannot tie up defendant with a permanent writ of injunction, and then declare the case to be moot because the party enjoined does not defy the order of court....

....

[W]here a judgment debtor, in obedience to the order of court or under compulsion of an execution, satisfies the judgment rendered against him, he does not thereby waive his right to have the judgment reviewed on writ of error by this court. In the event the judgment is reversed, the judgment debtor is entitled to complete restoration of his property or rights in accordance with the mandate of [the] court."

Reserve Life Insurance Co. v. Frankfather, 123 Colo. 77, 225 P.2d 1035 (1950), relying on and quoting from Bray v. Trower, 87 Colo. 240, 286 P. 275 (1930). See also Oken v. Hammer, 791 P.2d 9 (Colo.App.1990) (even if judgment is satisfied by voluntary agreement, appeal is not rendered moot if that agreement provides for repayment in the event of a successful appeal).

Here, after the court entered its decree of specific performance, plaintiff petitioned the court to hold the bank in contempt for its failure to comply with that order and to require the bank to comply with its...