Kinsey v. Preeson

• Decision Date: 30 November 1987
• Docket Number: No. 85SA429,85SA429
• Citation: 746 P.2d 542
• Parties: , 56 USLW 2329 Tomiko A. KINSEY, Plaintiff-Appellee, v. Robert E. PREESON, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 542

746 P.2d 542

79 A.L.R.4th 213, 56 USLW 2329

Tomiko A. KINSEY, Plaintiff-Appellee, v. Robert E. PREESON, Defendant-Appellant.

No. 85SA429.

Supreme Court of Colorado En Banc.

Nov. 30, 1987.

As Modified on Denial of Rehearing

Dec. 21, 1987.

Prendergast & Prendergast, Paul Prendergast, M. Evan Sweet, Lakewood, for plaintiff-appellee.

Eugene Deikman, P.C., Craig A. Murdock, Denver, for defendant-appellant.

VOLLACK, Justice.

The defendant, Robert E. Preeson (the defendant or Preeson), appeals the judgment of the Jefferson County District Court awarding the plaintiff, Tomiko A. Kinsey (the plaintiff or Kinsey), compensatory damages, exemplary damages, attorney fees, and an execution against the body of the defendant pursuant to section 13-59-103, 6A C.R.S. (1987). The trial court directed the defendant to be imprisoned for up to one year or until payment of the judgment. The defendant retained new counsel for the purposes of this appeal. He appealed this judgment claiming that the body execution statute, sections 13-59-101 to -105, is unconstitutional. ¹ He also contends that the plaintiff's pleadings were legally insufficient to support the award of body execution and punitive damages, that the trial court's findings to support the award of body execution and punitive damages were insufficient, and that the trial court erred in awarding the plaintiff attorney fees.

The defendant appealed the judgment to the court of appeals. Due to the constitutional challenge to sections 13-59-101 to -105, ² jurisdiction was transferred to this court pursuant to section 13-4-110, 6A C.R.S. (1987).

We hold that the body execution statute, specifically section 13-59-103, does not provide a rational basis for achieving its purpose, and thus violates equal protection of the law. Further, the award of attorney fees was improper because the trial court did not make sufficient findings to justify the award. However, the award of punitive damages is supported by sufficient evidence. Therefore, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings.

I.

The dispute between the parties arose out of a contract in which the plaintiff Kinsey agreed to give the defendant $7,500 with the understanding that the defendant would invest the money in a corporation which he was to form to engage in the motor home rental business. Preeson drafted the contract in the form of a letter addressed to Kinsey, dated October 19, 1981, stating that he would form a Delaware corporation to be known as "Chief Motorhome Rentals, Inc." and issue Kinsey five percent of the corporate stock for $7,500. He then stated his intention of traveling to Europe to secure reservations through the media and commercial travel brokers, sending Kinsey weekly progress reports, and sending Kinsey ten percent of the income generated from the business on a monthly basis until Kinsey's initial investment was paid off.

In November 1983, with no return on her investment forthcoming, Kinsey brought the underlying action alleging two claims for relief: a claim for breach of contract and a claim alleging fraud, deceit, and false representation on the part of the defendant.

Initially, Preeson proceeded pro se and filed a letter with the court requesting a continuance to enable him to obtain counsel. The continuance was granted and after the defendant obtained counsel, an answer was filed. The answer alleged that the plaintiff's complaint was "legally insufficient." The answer also alleged that the plaintiff assumed the risks involved in the business venture and that any damages suffered by the plaintiff resulted from her own negligent and willful conduct.

The case proceeded to trial by the court. Both parties submitted "Proposed Pre-trial Orders" setting forth the issues to be tried. Evidently no pre-trial conference was held and the trial court did not sign a trial data certificate pursuant to C.R.C.P. 121, § 1-18. ³ The trial court found in favor of the plaintiff. The court found that Kinsey was an unsophisticated investor with a limited knowledge of the English language, having been raised and educated in Okinawa. The court found that the defendant induced Kinsey to invest in his corporation, which he failed to form, and that he failed to perform any of the terms of the contract. The trial court ruled that the contract was not only breached but that the defendant acted fraudulently and intentionally to misrepresent his purposes for obtaining Kinsey's money. Further, the court found the defendant's testimony to be incredible. The court awarded compensatory damages of $7,500, punitive damages of $7,500, and, ruling that Preeson's defense was frivolous because a negligence defense is not appropriate to a claim of fraud, awarded attorney fees. Finally, the court awarded Kinsey an execution against the body of the defendant for the amount of the judgment. The court requested the plaintiff to submit a financial affidavit for her claim that pursuant to section 13-59-105, as a poor person, she should not be required to pay for the cost of Preeson's incarceration. ⁴ The court also requested an affidavit from Kinsey's attorney with regard to attorney fees. The plaintiff's counsel was ordered to prepare the order of judgment. By signed order, the trial court set reasonable attorney fees at $3,306, and set Preeson's term of incarceration at one year or until payment of the judgment.

II.

Preliminary contentions by the plaintiff must be addressed before we turn to the constitutional aspects of this case. The plaintiff argues that the defendant's notice of appeal was untimely and also that the defendant is precluded from raising a constitutional challenge for the first time on appeal. We disagree.

Under C.A.R. 4, a party has 45 days from the date of the denial of a motion for new trial in which to file an appeal. C.R.C.P. 59 grants a party 15 days from the entry of judgment to file a motion for new trial. The trial court entered its written order of judgment on November 1, 1984. ⁵ The defendant filed his motion for new trial, which included a claim that the body execution statute was unconstitutional, on November 16. The motion was denied on December 5, and thus, the defendant had until January 19, 1985 to file an appeal. The defendant's notice of appeal was filed in the court of appeals on January 21, 1985, January 19 of 1985 being a Saturday, and thus was timely under C.A.R. 4.

Second, the plaintiff contends that the defendant cannot challenge the constitutionality of the body execution statute for the first time on appeal. This contention fails for two reasons: (1) the defendant raised his constitutional challenge to sections 13-59-101 to -105 in his motion for new trial; (2) where the issue is of constitutional proportions, we have addressed it even if not properly raised in a motion for new trial. People In Interest of A.M.D., 648 P.2d 625 (Colo.1982); Robinson v. People, 173 Colo. 113, 476 P.2d 262 (1970). Here, however, the issue was raised and the trial court ruled that the body execution statute was constitutional. We therefore address the defendant's substantive claims.

III.

The defendant argues that the body execution statute violates the fourteenth amendment of the United States Constitution and Article II, section 6 of the Colorado Constitution. ⁶ In point of fact, the appropriate section to equate with the equal protection clause of the federal constitution is section 25 of Article II. "Although the Colorado Constitution does not contain an identical provision, it is well-established that a like guarantee exists within the constitution's due process clause, Colo. Const. Art. II, Sec. 25, and that its substantive application is the same insofar as equal protection analysis is concerned." Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005, 1014 (Colo.1982); see also Tassian v. People, 731 P.2d 672 (Colo.1987). We will analyze the defendant's claim within this context, but first we briefly review the history of the body execution statute.

A.

The origins of body execution are ancient and the concept of imprisonment for debt was long a part of our legal history. R. Ford, Imprisonment for Debt, 25 Mich.L.Rev. 24 (1926). The practice of imprisoning debtors had its antecedent in Roman law and continued throughout the evolution of the common law. In colonial America, the law corresponded with the law of England in the matter of civil arrest, so much so that in some states three to five times the number of persons were imprisoned for debt as for crime. Id. at 28-29. Reform came in the guise of constitutional and statutory provisions which limited or entirely prohibited imprisonment for debt, and were enacted by the states individually. See Note, Body Attachment and Body Execution: Forgotten But Not Gone, 17 Wm. & Mary L.Rev. 543, 550-51 n. 45-52 (1976). Some states have no constitutional provisions on the subject, but have enacted statutory limitations, while other states have constitutional provisions to restrict imprisonment for debt. See Note, Imprisonment for Debt: In the Military Tradition, 80 Yale L.J. 1679, 1679 n. 1 (1971) (setting forth the state constitutional and statutory citations on the subject of body executions). The United States Constitution provides no express provision against imprisonment for debt, but federal courts are required to follow the law of the state in which they sit. See 28 U.S.C. § 2007 (1982).

Body execution statutes are not uniform, but most authorize a body execution whenever a defendant is found guilty of some kind of wrongdoing, such as committing a fraud, or tort, or misconduct in public office or professional employment, or embezzlement or conversion of the plaintiff's property, or where the defendant is about to abscond. A. Freeman, 3 Law of Executions § 451, at 2393 (3d ed. 1900). The intent of prohibitions against imprisonment for debt is to exempt from imprisonment the honest...