Mohr v. Kelley, 98CA1271.

• Decision Date: 17 February 2000
• Docket Number: No. 98CA1271.,98CA1271.
• Citation: 8 P.3d 543
• Parties: Jannine MOHR and Charlotte McDaniel, Plaintiffs-Appellants, v. Guy KELLEY, Defendant-Appellee.
• Court: Colorado Court of Appeals

8 P.3d 543

Jannine MOHR and Charlotte McDaniel, Plaintiffs-Appellants, v. Guy KELLEY, Defendant-Appellee.

No. 98CA1271.

Colorado Court of Appeals, Div. III.

February 17, 2000.

Certiorari Denied September 5, 2000.

Jannine Mohr, Pro Se.

Thomas R. French, P.C., Thomas R. French, Fort Collins, Colorado, for Plaintiff-Appellant Charlotte McDaniel.

Bennington Johnson & Reeve, P.C., Thomas C. Reeve, Kathleen E. Craigmile, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge ROY.

In this action arising out of an employment wage dispute, plaintiffs, Jannine Mohr and Charlotte McDaniel, appeal a partial summary judgment entered in favor of defendant, Guy Kelley. We affirm.

McDaniel and Mohr were initially volunteers with defendant's campaign committee for election to the United States House of Representatives from the Fourth Congressional District in the 1996 general election (the Campaign). In their amended complaint, the plaintiffs allege they were each hired by the Campaign: McDaniel in January of 1996, and Mohr, as Campaign chairman, in March of 1996. Both Mohr and McDaniel occupied paid positions.

In October of 1996, Mohr was discharged, and the following day McDaniel resigned. Following their departure from the Campaign, plaintiffs claimed they were owed back wages. The Campaign refused to pay, stating that it did not have sufficient funds to pay the salaries.

Consequently, plaintiffs commenced this action against defendant, individually, asserting claims for breach of contract, quantum meruit, promissory estoppel, and a violation of the Colorado Wage Claim Act, §§ 8-4-101 to 8-4-127, C.R.S.1999 (the Wage Act).

After some preliminary discovery was conducted, and based upon the undisputed facts revealed, defendant moved for summary judgment on all of plaintiffs' claims. The trial court granted defendant's motion on the grounds that defendant was not individually liable to plaintiffs pursuant to the Uniform Unincorporated Nonprofit Association Act (the Association Act), § 7-30-101, et seq., C.R.S.1999, most particularly § 7-30-106, C.R.S.1999. In addition, the trial court concluded there was no issue as to any material fact that the obligation to pay a salary or wages for the plaintiffs' services was contingent on the availability of funds, and no funds were available. Plaintiffs sought and obtained a C.R.C.P. 54(b) order, and this appeal followed.

Appellate review of an order granting summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo. 1995)

.

When reviewing a summary judgment order, we are required to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). In making this determination, all doubts as to the existence of a triable factual issue must be resolved against the moving party, Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo.1985), and the opposing party is given the benefit of all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.1987).

However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual issue shifts to the opposing party. Failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App.1991).

In addition, arguments or evidence not presented to the trial court in connection with a motion for summary judgment will not be considered on appeal. See County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977),

appeal after remand, 198 Colo. 6, 595 P.2d 237 (1979) (appellate jurisdiction limited to issues which had been before the district court in proper procedural posture).

I.

Plaintiffs contend that the trial court erred in holding that the defendant was not personally liable for the obligations of the Campaign under the Association Act. We disagree.

The Association Act was originally proposed by the Commissioners on Uniform State Laws in 1992, and was adopted in Colorado in 1994. Colo. Sess. Laws 1994, ch. 222, § 1.

Prior to the Association Act's adoption, unincorporated associations, profit and nonprofit, were treated the same as general partnerships, thus members could be individually liable for obligations of the association in both tort and contract. See Thomas v. Dunne, 131 Colo. 20, 279 P.2d 427 (1955)

.

Section 7-30-106 substantially changes the law with respect to unincorporated non-profit associations. It provides in pertinent part as follows:

(1) A nonprofit association is a legal entity separate from its members for the purposes of determining and enforcing rights, duties, and liabilities in contract and tort.

(2) A person is not liable for a breach of a nonprofit association's contract merely because the person is a member of the nonprofit association, is authorized to participate in the management of the affairs of the nonprofit association, or is a person considered to be a member by the nonprofit association.

There is no case law construing or applying this provision of the Association Act. The Association Act makes a nonprofit unincorporated association a legal entity separate and apart from its members. Therefore, logically, nonprofit unincorporated associations are more in the nature of...