Gleason v. Guzman

• Citation: 623 P.2d 378
• Decision Date: 05 January 1981
• Docket Number: No. 79SC155,79SC155
• Parties: Irwin Duane GLEASON, Coin Fresh, Inc., a Colorado Corporation, and Mannings, Inc., a California Corporation, Petitioners, v. Darlene Benavidez GUZMAN, Respondent.
• Court: Colorado Supreme Court

Page 378

623 P.2d 378

Irwin Duane GLEASON, Coin Fresh, Inc., a Colorado Corporation, and Mannings, Inc., a California Corporation, Petitioners, v. Darlene Benavidez GUZMAN, Respondent.

No. 79SC155.

Supreme Court of Colorado.

Jan. 5, 1981.

Rehearing Denied March 2, 1981.

Tilly & Graves, Ronald H. Shear, Denver, for petitioner Mannings, Inc.

Pryor, Carney & Johnson, Thomas L. Roberts, Englewood, for petitioners Irwin Duane Gleason and Coin Fresh, Inc.

Carroll & Bradley, P. C., Rebecca L. Bradley, Westminster, for respondent.

QUINN, Justice.

We granted certiorari to review the court of appeals' decision in Guzman v. Gleason, Colo.App., 598 P.2d 145 (1979), which addressed the issue of mistake in connection with the execution of a guardian's release for his daughter's personal injury claim. The trial court had granted the defendants' motion for summary judgment on the ground that any mistake in the execution of the release was a unilateral mistake in the prognosis for recovery rather than a mistake about the nature of the injury. The court of appeals reversed and remanded, holding that there was a genuine issue of fact as to the nature of the mistake and summary judgment was inappropriate. We affirm the court of appeals.

On September 29, 1970, Darlene Benavidez, then a fourteen-year-old minor, was struck on the head by a vending machine that fell from a truck operated by Irwin Gleason in the course of his employment with Coin Fresh, Inc. (defendants). Darlene Benavidez has since married and is now known as Darlene Guzman (plaintiff). Immediately after the accident she was taken to Denver General Hospital for examination. She complained of headache, vomiting and some disorientation and, after two days of observation and testing, her injury was diagnosed as a left temporal lobe contusion and she was released as improved. On October 13, 1970, the plaintiff was readmitted to the hospital with complaints similar to those previously experienced. Further testing resulted in a diagnosis of left intratemporal lobe hematoma and the plaintiff was discharged as improved on October 20, 1970. Shortly thereafter plaintiff returned to high school and a normal routine. She and her parents, Mr. and Mrs. Benavidez, believed that plaintiff had fully recovered from the injury.

In November 1970 the plaintiff's parents retained an attorney in connection with their daughter's claim. Approximately two years later this attorney initiated settlement negotiations with the defendants' insurance carrier. It was mutually agreed that the case be settled for $6,114.35. The insurance carrier hired an attorney to prepare a petition for the probate court's approval of the settlement and the appointment of the plaintiff's father, Mr. Benavidez, as guardian of his minor daughter's estate. The probate court approved the settlement and Mr. Benavidez, as duly appointed guardian, executed a general release of his daughter's claim against the defendants.

In May 1974, approximately forty-four months after the accident, the plaintiff experienced her first epileptic seizure during her senior year in high school. Other seizures followed. Having become emancipated through marriage, she retained her present attorneys and a complaint was filed in November 1975. The complaint sought money damages against the defendants for negligently causing personal injuries to the plaintiff in the accident of September 29, 1970. The defendants in their answer raised as an affirmative defense the release executed by the guardian and endorsed on their answer a demand for a jury trial. Thereafter, the defendants filed a motion for summary judgment on the basis of the guardian's release. The plaintiff countered with a motion to set aside the release on the ground that it was executed under a mistake as to the nature of the injury actually sustained. The court heard both motions in a consolidated hearing on November 14, 1977.

At the commencement of the motions-hearing the attorneys advised the court that the two pending motions involved the identical issue: the validity of the release. The plaintiff's attorney then offered to proceed to a court trial on this issue and to accept the court's decision as the final judgment in the matter. However, the defendants' attorney rejected the offer and stated to the court that he expected the court to rule on the issue within the format of a summary judgment proceeding. At this point the court stated: "This is a summary judgment I mean, I am just going to rule on the things before me." ¹ During the motions-hearing the plaintiff presented a neurologist who testified that the first diagnosis of post-traumatic epilepsy was made after the first seizure in 1974. He also stated that a monitored program of intermittent electroencephalographic testing between the accident and the seizure would not have necessarily disclosed the epileptic condition. The affidavits and testimony of the plaintiff and her parents established that they were never informed of actual or potential epilepsy with respect to the injury suffered and that the release would not have been executed if they were aware of any risk of that condition developing.

During legal argument at the motions-hearing the defense attorney made reference to pleadings, affidavits, deposition testimony and pertinent legal authority for the purpose of establishing the factual and legal predicates for summary judgment under C.R.C.P. 56(c). Approximately three weeks after the hearing the court entered a written order granting the defendants' motion for summary judgment and denying the plaintiff's motion to set aside the release for the following reasons:

"The Court finds that the facts of this case are governed by Davis v. Flatiron Materials Co., 182 Colo. 65, 511 P.2d 28 (1973). Any mistake existing at the time the release was executed was not a mutual mistake of fact, but rather a unilateral mistake of prognosis by the plaintiff.... At the time the release was executed, the plaintiff should have known that traumatic epilepsy could result from her injury."

The court of appeals reached an opposite conclusion, finding this case indistinguishable from Scotton v. Landers, 190 Colo. 27, 543 P.2d 64 (1975) and holding that "there was evidence upon which the trier of fact could well conclude that the settlement was based on a basic mistake."

The defendants raise alternate arguments for reversal of the court of appeals. First, they argue that the plaintiff was not entitled to a jury trial on the issue of mistake in the execution of the release and, therefore, the trial court's denial of the plaintiff's motion to set aside the release constituted an adjudication on the merits. Alternatively, they claim that the trial court properly granted summary judgment because any mistake was a unilateral mistake in prognosis as to the plaintiff's future course of recovery from a known injury and not a mistake as to the nature of the injury itself.

I. The Effect of the Motions-Hearing on the Right to a Jury Trial

The defendants assert that the court's denial of the plaintiff's motion to set aside the release constituted an adjudication on the merits. Their argument stems from two inferences which they believe find support in the record: (1) the filing of the motion to set aside the release invoked the equity jurisdiction of the court and transformed the character of the action from a legal to an equitable one for which a jury trial was inappropriate; and (2) the plaintiff's presentation of evidence in support of the motion effected a waiver of a jury trial on all issues relating to the release. Our interpretation of the record is different from that urged by the defendants.

The record clearly demonstrates that the district judge considered both motions the defendants' motion for summary judgment and the plaintiff's motion to set aside the release under the rubric of summary judgment proceedings. When he heard and ruled on the motions he was not acting as a chancellor in equity or as the ultimate trier of fact, but as a judge determining that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." C.R.C.P. 56(c).

Contrary to the defendants' argument, the plaintiff's filing of the motion to set aside the release did not transform the character of the proceedings from a legal to an equitable one. Although there is no constitutional right to a jury trial in civil cases in Colorado, Colo.Const. Art. II, Sec. 23; Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951); Parker v. Plympton, 85 Colo. 87, 273 P. 1030 (1928), C.R.C.P. 38(a) provides that an issue of fact must be tried to a jury upon demand in an action for personal injuries. Here, the complaint sounds in negligence and seeks relief in the form of money damages. Historically, actions to recover money damages for personal injuries are legal, not equitable, and upon proper demand should be tried to a jury rather than the court. 5 J. Moore, Federal Practice § 38.11(5) and § 38.19(1) (2d ed. 1980). In Colorado "whether an issue of fact must be tried to a jury ... depends upon the character of the action in which the issue is joined." Setchell v. Dellacroce, 169 Colo. 212, 215, 454 P.2d 804, 806 (1969); see Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964); Esselstyn v. United States Gold Corp., 59 Colo. 294, 149 P. 93 (1915); Jacobs v. Prudential Ins. Co., 35 Colo.App. 423, 533 P.2d 516 (1975); Miller v. Carnation Co., 33 Colo.App. 62, 516 P.2d 661 (1973).

The plaintiff's motion to set aside the release no more impacted on the basic character of the action than did the defendants' assertion of the affirmative defense of release in their answer. In fact, the defendants acknowledged implicitly the legal character of this action by endorsing on that answer a demand for a jury trial pursuant to C.R.C.P. 38(b). Notwithstanding the issue relating to the validity of the release, the...