Palisades Nat. Bank v. Williams

• Decision Date: 01 August 1991
• Citation: Palisades Nat. Bank v. Williams, 816 P.2d 961 (Colo. App. 1991)
• Docket Number: 90CA0864
• Parties: PALISADES NATIONAL BANK, a National Banking Association, Plaintiff-Appellant, v. Anthony W. WILLIAMS, individually, and Williams, Turner and Holmes, a Colorado partnership, and its successor in interest, Williams, Turner & Holmes, P.C., Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 961

816 P.2d 961

PALISADES NATIONAL BANK, a National Banking Association Plaintiff-Appellant, v. Anthony W. WILLIAMS, individually, and Williams, Turner and Holmes, a Colorado partnership, and its successor in interest, Williams, Turner & Holmes P.C., Defendants-Appellees.

No. 90CA0864.

Colorado Court of Appeals Div. III.

Aug. 1, 1991.

Epstein & Lawrence, P.C., Joseph M. Epstein, James S. Miller, Denver, for plaintiff-appellant.

Hall & Evans, Alan Epstein, Denver, for defendants-appellees.

Opinion by Judge CRISWELL.

In this action for professional negligence and breach of contract, Palisades National Bank, plaintiff, appeals from the summary judgment dismissing its complaint against defendants, Anthony W. Williams; Williams, Turner & Holmes, a Colorado partnership; and Williams, Turner & Holmes, P.C. (Williams). We affirm.

The bank sought damages arising out of Williams' legal representation of the bank in 1979 in connection with the bank's purchase of real property in Mesa County. The complaint, filed on November 14, 1989, alleged that Williams had failed to include within an agreement that he drafted for the bank a provision requiring both the bank and the seller to undertake the mutual development of the land purchased by the bank and the abutting property owned by the seller.

Williams answered the complaint, asserting as an affirmative defense that the bank had failed to bring its claims within the time permitted by the statute of limitations. Williams also filed a motion to dismiss, asserting that the bank's claims were time-barred. Both parties filed briefs and affidavits directed to this issue. The trial court treated Williams' motion as one for summary judgment, determined that the bank's claims were barred by the applicable statute of limitations, and dismissed its complaint.

The bank contends that summary judgment was improper because genuine issues of material fact existed as to when its claims against Williams accrued. We disagree.

If the undisputed fact clearly show that a plaintiff discovered, or reasonably should have discovered, an attorney's negligent conduct as of a particular date, the issue may be decided as a matter of law. Morris v. Geer, 720 P.2d 994 (Colo.App.1986).

Here, in his affidavit, the bank's president stated that he signed the land purchase agreement on December 31, 1979. In his deposition he stated that, in September 1986, he discovered that the signed agreement did not contain a reciprocal building provision so that, while the seller could require the bank to develop its property, there was no explicit parallel obligation on behalf of the seller. He also said that he learned at this time that the seller intended to enforce the contract as written.

In October 1986, the bank retained another law firm in an attempt to resolve the problem concerning the reciprocal building provision. On November 3, 1986, the bank's president met with the seller and acknowledged that no reciprocal building provision had been included in the agreement.

These undisputed facts establish that, at least by November 3, 1986, the bank knew, or reasonably should have known, all of the essential facts respecting Williams' alleged negligence in preparing the agreement. In addition, by that date it knew that the other party to this contract intended to attempt to enforce its provisions as written. Finally, by that date it had incurred financial obligations to its new attorney, which obligations were incurred solely because of the lack of a reciprocal building provision in the agreement drafted by Williams.

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