Roa v. Miller, 87CA1386
| Decision Date | 27 July 1989 |
| Docket Number | No. 87CA1386,87CA1386 |
| Citation | 784 P.2d 826 |
| Parties | Neva B. ROA, Plaintiff-Appellee, v. Louise M. MILLER, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Gunnar E. Andersson, P.C., Gunnar E. Andersson, Colorado Springs, for plaintiff-appellee.
Orville A. Kenelly, Colorado Springs, for defendant-appellant.
Opinion by Judge CRISWELL.
Defendant, Louise M. Miller, appeals from the judgment entered against her and in favor of plaintiff, Neva B. Roa, based upon defendant's promise to pay plaintiff $10,000. We affirm.
Plaintiff and defendant are both real estate brokers who shared a joint listing on a parcel of property in Colorado Springs. When no buyer was secured during the listing period, defendant agreed to purchase the property for herself. At the time of the closing, defendant executed and delivered to plaintiff, as partial consideration for plaintiff's commission, a document in the form of a promissory note in the principal amount of $10,000. The obligation created by this instrument was secured by a deed of trust upon the property purchased by defendant that was subordinate to an existing deed of trust.
The terms of this instrument provided that the $10,000 was payable only upon a "transfer of title ... from [defendant] conveying the property described in the trust deed." For this purpose, however, the instrument defined the term "transfer of title" to include "any change of ownership ... or encumbrance of the secured properties from [defendant] to a third party."
Some time after the execution of this instrument, the holder of the promissory note secured by the pre-existing deed of trust began foreclosure proceedings, purchased the property at the foreclosure sale, and received a certificate of purchase. Before the redemption period had expired, defendant executed a note and deed of trust in favor of a third party. And, this third party, using the deed of trust executed by plaintiff as the basis therefor, redeemed the property under circumstances that extinguished both defendant's and plaintiff's interests in the property. Plaintiff then brought suit against defendant on the written promise to pay.
In defending against plaintiff's claim, defendant asserted that the parties intended that she was to pay plaintiff the $10,000 called for by her written promise only upon her sale of the property to a third party under circumstances that resulted in a profit to her. It was not intended, she claimed, that a foreclosure sale was to constitute a "transfer of title." She argued, therefore, that a necessary condition precedent to her obligation to pay had not occurred.
In rejecting this assertion, the trial court concluded that, since the instrument made defendant's obligation to pay conditioned upon an event for which no definite time of occurrence was specified, it was a demand note under § 4-3-108, C.R.S. Thus, since the filing of suit constituted a demand for payment, any necessary condition precedent to that payment had been fulfilled.
I.
Defendant first asserts that plaintiff's testimony was not worthy of belief and that the only credible evidence demonstrated that the $10,000 was to be paid by defendant only in the event of a profitable sale or transfer of the property by defendant. Thus, she asserts that the judgment of the trial court is not supported by the evidence. We disagree.
Credibility resolutions are for the trial court, not for an appellate court. People ex rel. Dunbar v. Lee Optical Co., 168 Colo. 345, 452 P.2d 21 (1969). Further, since the liability of defendant is grounded upon the provisions of a written instrument, it is only if the provisions of that instrument are ambiguous that parol evidence of the parties' intent may be considered. See Buckley Bros. Motors, Inc. v. Gran Prix Imports Inc., 633 P.2d 1081 (Colo.1981). And, the question whether an instrument is ambiguous is a question of law which may be reviewed and resolved by this court. Pepcol Manufacturing Co. v. Denver Union Corp., 687 P.2d 1310 (Colo.1984). As we note below, we conclude that the instrument signed by defendant contains no relevant ambiguities.
II.
Defendant also argues that the trial court committed prejudicial error in allowing plaintiff to present evidence and argument upon two issues that were not raised by the pleadings. However, the trial court did not pass upon either of these issues, and we are not called upon to resolve either of them on this appeal. Thus, even were we to assume that the trial court erred in this regard, its error was harmless.
III.
Defendant asserts that the trial court erred, as a matter of law, in concluding that the instrument signed by defendant was a demand note. While we agree with this premise, we nevertheless conclude that the judgment entered by the trial court was a correct one. Thus, that judgment will be affirmed. See Cole v. Hotz, 758 P.2d 679 (Colo.App.1987).
In order for an instrument to be a "negotiable instrument," and thus to be subject to the statutes governing such instruments, it must contain an "unconditional promise ... to pay a sum certain." Section 4-3-104(1)(b), C.R.S. If a written agreement makes an obligation to pay subject to an express condition, so that it is not a negotiable instrument, statutory provisions relating to negotiable instruments are inapplicable to the transaction. West Greeley National Bank v. Wygant, 650 P.2d 1339 (Colo.App.1982). In such a circumstance, the instrument is not payable on demand, but is payable only upon the happening of the express condition. See Bank of Kimball v. Rostek, 161 Colo. 584, 423 P.2d 579 (1967).
Here, defendant's promise to pay was not "unconditional;" it was expressly conditioned upon her "transfer of title." Thus, the document containing that promise was not a negotiable instrument, and § 4-3-108, C.R.S., relating to demand instruments, was not applicable to it. See West Greeley National Bank v. Wygant, supra. In order to recover upon that instrument, therefore, plaintiff was required to prove that a transfer of title, within the instrument's meaning of that term, had occurred. See Bank of Kimball v. Rostek, supra. However, the undisputed evidence demonstrates that such a transfer did occur.
We do not address the issue whether the divestiture of defendant's title, which would have occurred as a result of a foreclosure sale without any redemption by defendant, would constitute a "transfer" under the instrument. Nevertheless, the instrument is unambiguous in providing that defendant's action in encumbering the property would constitute such a transfer and would cause defendant's obligation to pay to become unconditional. And, defendant's own testimony undisputedly established that, for valuable consideration, she encumbered the title to the property by a further deed of trust for the benefit of a third party.
As a result of that encumbrance and his redemption of the property, that third party became vested with full legal and equitable title to the property. Hence, defendant's encumbrance of the property...
To continue reading
Request your trial
-
Dennis I. Spencer Contractor, Inc. v. City of Aurora, 93SC529
...agreement, we need not consider the net judgment rule in greater detail at this time.12 The court of appeals' decision in Roa v. Miller, 784 P.2d 826 (Colo.App.1989), is consistent with our holding. The court of appeals considered at what stage in a trial attorney fees should be calculated.......
-
Dawes Agency, Inc. v. American Property Mortg., Inc., 88CA1493
...inquiry that cannot even commence until one party has 'prevailed'." Relying upon the Baldwin analysis, this court in Roa v. Miller, 784 P.2d 826 (Colo.App.1989), concluded that a motion for attorney fees is appropriate to be considered after the court determines the merits of the underlying......
-
Bernhard v. Farmers Ins. Exchange
...to be assessed, which relate to services rendered during the course of that litigation, and which may be awarded as costs, Roa v. Miller, 784 P.2d 826 (Colo.App.1989) , attorney fees incurred in a previous lawsuit as a direct consequence of a carrier's bad faith breach must be proven as a p......
-
Luskin Daughters 1996 Trust for the Benefit of Ackerman v. Young
...of its continuing jurisdiction to determine the issues posed by the cost bills and requests for attorney fees."); Roa v. Miller , 784 P.2d 826, 830 (Colo. App. 1989) ("[A] trial court may address the issue of the award of attorney fees for services rendered in connection with the underlying......
-
COLORADO RULES OF CIVIL PROCEDURE
...with the underlying litigation on a post-trial basis, whether or not counsel has previously sought to "reserve" the issue. Roa v. Miller, 784 P.2d 826 (Colo. App. 1989). An award of attorney fees under § 13-17-102. cannot be held to be confessed by failure to respond to a motion for fees.Ar......
-
Rule 54 JUDGMENTS; COSTS.
...with the underlying litigation on a post-trial basis, whether or not counsel has previously sought to "reserve" the issue. Roa v. Miller, 784 P.2d 826 (Colo. App. 1989). Attempt to have costs assessed pursuant to section (d) and C.R.C.P. 121, 1-22, was ineffective where court had previously......
-
The "finality" of an Order When a Request for Attorney Fees Remains Outstanding
...Ins. Authority, 883 P.2d 586 (Colo.App. 1994). [6] Trujillo v. Indus. Comm'n, 648 P.2d 1094 (Colo.App. 1982). [7] Roa v. Miller, 784 P.2d 826 (Colo.App. 1989). Accord, Chartier v. Weinland Homes, 25 P.3d 1279 (Colo.App. 2001). [8] Budinich v. Becton Dickinson and Co., 486 U.S. 196, 108 S.Ct......
-
The Bill of Costs
...9. See Buchanan v. Stanships, Inc., 485 U.S. 265 (1988); Ferrell v. Glenwood Brokers. Ltd., 848 P.2d 936 (Colo. 1993); Roa v. Miller, 784 P.2d 826 (Colo.App. 1989). 10. See Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo. 1988); see also Koontz v. Rosener, 787 P.2d 192 (Colo.App. 1989) ......