Potter v. Thieman
| Decision Date | 05 January 1989 |
| Docket Number | Nos. 87CA1021,87CA1081,s. 87CA1021 |
| Citation | 770 P.2d 1348 |
| Parties | James B. POTTER and Mescal J. Potter, Plaintiffs-Appellants, v. Willard THIEMAN, Vicki Corley and Lynn Kaatz, d/b/a Daddio's Lounge, Defendants-Appellees and Third-Party Plaintiffs-Appellants, v. C.B. POTTER, and The City of Colorado Springs, Third-Party Defendants-Appellees. . III |
| Court | Colorado Court of Appeals |
Schaden, Heldman & Lampert, Victoria C. Heldman, Denver, for plaintiffs-appellants James B. Potter and Mescal Potter.
Wills and Gorsuch Kirgis, David Pitinga, Colorado Springs, for defendants-appellees and third-party plaintiffs-appellants Willard Thieman, Vicki Corley and Lynn Kaatz, d/b/a Daddio's Lounge.
Hall & Evans, Gordon L. Vaughan, Colorado Springs, for third-party defendants-appellees C.B. Potter and the City of Colorado Springs.
These consolidated appeals concern two rulings entered by the district court in the same wrongful death action. In one appeal, the plaintiffs, James B. Potter and Mescal Potter, parents of Anthony Potter, now deceased, appeal from the trial court's purported dismissal of an alleged claim of Michelle Ridenour, who may assert that she is the decedent's widow by virtue of a common law marriage to him. In the other appeal, defendants, Willard Thieman, Vicki Corley, and Lynn Kaatz, d/b/a Daddio's Lounge, appeal from the dismissal of their third-party complaint against the City of Colorado Springs (City) and C.B. Potter (not related to plaintiffs or decedent), a police officer with the City. In the case of each dismissal order, the court directed the entry of final judgment pursuant to C.R.C.P. 54(b). We dismiss the plaintiffs' appeal, and we affirm the judgment dismissing the third-party complaint against the City and Potter.
In February 1986, the plaintiffs, as parents of the decedent, commenced a wrongful death action against the defendants, who owned and operated the tavern where decedent met his death as a result of gunshots fired by James Spence. Their claim was that defendants served alcoholic beverages to Spence after he had become intoxicated and that this action on their part was a proximate cause of their son's death.
Nearly a year later, in January 1987, plaintiffs filed a motion to amend their complaint to add Michelle Ridenour as a party plaintiff, who, it was claimed, was decedent's common law wife at the time of his death. However, while an affidavit by plaintiffs' counsel accompanying this motion refers to an "amended complaint," no such amended complaint asserting a claim on Ridenour's behalf was tendered to the court. Moreover, although that affidavit asserted that plaintiffs' counsel had spoken with Ridenour and that she had "expressed a desire to participate" in the litigation, we can find nothing in the record on appeal which would indicate that an appearance was ever entered in the trial court either by Ridenour or by anyone on her behalf.
Defendants filed a written objection to plaintiffs' motion to amend in which they asserted, among other things, that the statute of limitations had run upon any claim that Ridenour might possess. In addition, relying upon McGill v. General Motors Corp., 174 Colo. 388, 484 P.2d 790 (1971), they argued that her claim could not relate back to the date of the filing of plaintiffs' original complaint, since the two claims were inconsistent.
On January 28, 1987, the trial court entered a written order granting plaintiffs' motion to amend. However, it then purported to treat defendants' written objections thereto as a motion to dismiss the claim for relief to be asserted by Ridenour, although no claim on her behalf had been filed.
Counsel for plaintiffs assert in this court that they were given no notice of the entry of this order and that they were unaware of it until long after the record on appeal was filed with this court. However, the record shows that counsel for both parties appeared before the court on April 3, 1987, and at that time the court advised counsel of its previous action. Indeed, in this hearing the court read the pertinent portions of its previous written order to counsel.
After this hearing, the court issued its written order in which it stated that the matter was before the court "upon defendant's [sic] motion to dismiss the amended complaint [sic]." This order then noted that, if Ridenour was in fact decedent's widow, plaintiffs had no claim to which the Ridenour claim could relate back under C.R.C.P. 15(c). Contrariwise, if Ridenour was not his widow, she had no claim. A later order, responsive to plaintiffs' motion to reconsider, noted that the court's decision "was a final judgment vis-a-vis Ms. Ridenour's rights" and granted plaintiffs' request for a C.R.C.P. 54(b) certification.
Michelle Ridenour has not filed a notice of appeal from the court's purported dismissal of her alleged claim and, indeed, has entered no appearance in this court. Rather, only plaintiffs filed such a notice. We conclude that they have no standing to prosecute an appeal from any judgment that purported to dismiss Ridenour's alleged claim.
Plaintiffs' claim for the wrongful death of their son is adverse to, and cannot simultaneously co-exist with, any claim asserted by Ridenour, who is his purported widow. Under the pertinent statute, a parent may assert a wrongful death claim only if there is no surviving spouse. Section 13-21-201(1), C.R.S. (1987 Repl. Vol. 6A); McGill v. General Motors Corp., supra.
The order of the trial court left plaintiffs' claim against defendants intact and ready to be scheduled for trial. The purported dismissal of the Ridenour claim, therefore, did not legally affect plaintiffs' claim. Under such circumstances, since plaintiffs were not aggrieved by the trial court's judgment, they have no standing to appeal from it. See Miller v. Reeder, 157 Colo. 134, 401 P.2d 604 (1965); Camenisch v. Nuccitelli, 150 Colo. 141, 372 P.2d 85 (1962).
After the question of plaintiffs' standing was raised in this court, plaintiffs, but not Ridenour, moved to "amend caption of appeal" so as to add Ridenour as a party appellant. That motion is hereby denied.
Plaintiffs' interest is, as noted, adverse to Ridenour's interest, and they cannot, therefore, represent her. Just as they have no standing to prosecute this appeal, they lack any standing to have Ridenour added as an appellant.
Thus, plaintiffs' appeal must be dismissed. In dismissing their appeal, however, we mean to express no opinion as to the validity of the trial court's order or its legal effect, if any, upon Ridenour.
The defendants ground their appeal of the dismissal of their third-party complaint against the City and Potter upon the assertion that the trial court erred in concluding that these two parties owed no duty to defendants. We agree with the trial court.
The evidence relied upon by the trial court in granting summary judgment consisted of police reports, police testimony at the preliminary hearing for the assailant Spence, and two affidavits from Potter and another officer. The undisputed evidence reflects that, on the night prior to decedent's killing, police responded to Spence's home to answer a call relating to a domestic dispute. They found the house in considerable disarray, and Spence's...
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