Teodonno v. Bachman
| Decision Date | 19 July 1965 |
| Docket Number | No. 20778,20778 |
| Citation | 158 Colo. 1,404 P.2d 284 |
| Parties | Richard Joseph TEODONNO and Frances Ann Teodonno, Plaintiffs in Error, v. R. O. BACHMAN, Defendant in Error. |
| Court | Colorado Supreme Court |
Tinsley, Alperstein & Frantz, Lakewood, for plaintiffs in error.
Richeson & Lawler, Denver, for defendant in error.
The plaintiffs in error, Richard and Frances Ann Teodonno, were the plaintiffs in the trial court and will be referred to as such. The defendant in error, R. O. Bachman, was the defendant below, and will be referred to as such. This action arose as a result of an alleged fraud on the part of the defendant in the sale of a residence to the plaintiffs. The trial court granted the defendant's motion to dismiss at the end of the plaintiffs' case, and entered judgment for the defendant. From that judgment, the plaintiffs bring writ of error here.
The defendant was engaged in the business of constructing and selling residences. The plaintiffs contracted to purchase a house which the defendant was building in Jefferson County, Colorado. The house was built, and in December of 1959, the plaintiffs completed the purchase, although they had been living in the house for some 9 month prior to that time.
Approximately a year later, the basement floor of the house began to heave and crack, and water began seeping into the basement. Eventually, one crack ran all the way around the perimeter of the basement floor, about two or three feet inside the foundation walls. The area of the floor contained within this crack has raised some four inches above its original level, and there has also been some cracking in the walls of the basement.
The plaintiffs grounded their action in fraud and sought to recover damages for the injury they sustained by reason of the water seepage into the basement. Their theory was that the plot upon which the house was built contained underground water and that the soil under the house when combined with such water was subject to swelling. They contended that the defendant knew of the presence of ground water underneath the house and of the condition of the soil, but concealed this from the plaintiffs and represented that the house was constructed in a good and substantial manner. Their complaint alleged that they had been damaged in the amount of $3500, and prayed for judgment in that amount.
The trial was to the court, and each party made an opening statement at the beginning of the case. The defendant's attorney, in his opening statement, said that his evidence would show that the defendant had had the soil properly tested by specialists. The plaintiffs then put on their evidence. At the end of the plaintiffs' case, the defendant moved to dismiss. The trial court held that the plaintiffs had failed to establish the allegations of fraud in their complaint, and dismissed the complaint. It should be noted that the plaintiffs presented no allegation of breach of warranty to the trial court and do not raise that issue here.
The gist of the plaintiffs' argument is that, granting them the truth of their evidence and all the inferences of fact that can legitimately be drawn from it, they made a prima facie case of fraud against the defendant.
It is true that when reviewing a dismissal entered at the conclusion of the plaintiffs' evidence in a jury trial, the rule urged by the plaintiffs that the evidence must be viewed in the light most favorable to the plaintiffs is applicable. Eberle v. Hungerford, 130 Colo. 167, 274 P.2d 93; Huddleston v. Ingersoll Co., 109 Colo. 134, 123 P.2d 1016. But when the trial is to the court, as it was here, the trial court is the finder of the fact and may make its findings and render judgment against the plaintiffs at the close of the plaintiffs' case. Rule 41(b)(1), R.C.P.Colo. The question on review of such action is not whether the plaintiffs made a prima facie case, but whether a judgment in favor of the defendant was justified on the plaintiffs' evidence. If reasonable men could differ in the inferences and conclusions to be drawn from the evidence as it stood at the close of the plaintiffs' case, then we cannot interfere with the findings and conclusions of the trial court. Blair v. Blair, 144 Colo. 442, 357 P.2d 84; Niernberg v. Gavin, 123 Colo. 1, 224 P.2d 215.
Plaintiffs do not rely on any actual misrepresentations made to them, and, in fact, there were none. The gravamen of their complaint is that the defendant allegedly concealed from them material facts under circumstances which amount to fraud. We have held that actionable concealment consists of (a) the concealment of a material existing fact which in equity and good conscience should be disclosed; (b) knowledge that one is concealing such a fact; (c) ignorance on the part of the one from whom such fact is concealed of the existence of the fact concealed; (d)...
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In the Matter of Application for Water Rights of Park County Sportsmen's Ranch, LLP, Case No. 01SA412 (CO 2/14/2005)
...for dismissal under C.R.C.P. 41(b)(1). In both orders dismissing PCSR's application, the water court cited Teodonno v. Bachman, 158 Colo. 1, 4, 404 P.2d 284, 285 (1965), holding that the applicable standard for dismissal under Rule 41(b)(1) is whether judgment in favor of defendant is justi......
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Conrad v. City and County of Denver
...Opera House Ass'n v. Brown, 191 Colo. 372, 553 P.2d 64 (1976); Kvols v. Lonsdale, 164 Colo. 125, 433 P.2d 330 (1967); Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284 (1965). This was the standard that should have been applied in ruling on Denver's motion to Counsel for Denver, however, couch......
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City of Aurora v. Colorado State Engineer
...for dismissal under C.R.C.P. 41(b)(1). In both orders dismissing PCSR's application, the water court cited Teodonno v. Bachman, 158 Colo. 1, 4, 404 P.2d 284, 285 (1965), holding that the applicable standard for dismissal under Rule 41(b)(1) is whether judgment in favor of defendant is justi......
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Franklin Supply Company v. Tolman
...more than nondisclosure must exist. There must be actual concealment. As the Supreme Court of Colorado held in Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284, 285 (1965): "We have held that actionable concealment consists of (a) the concealment of a material existing fact which in equity an......
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Rule 41 DISMISSAL OF ACTIONS.
...of fact and may make its findings and render judgment against the plaintiff at the close of the plaintiff's case. Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284 (1965); Hoeprich v. Cummiskey, 158 Colo. 365, 407 P.2d 28 (1965); Kvols v. Lonsdale, 164 Colo. 125, 433 P.2d 330 (1967); Rubens v.......
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Chapter 14 - § 14.5 • TORT CLAIMS ARISING FROM THE CONSTRUCTION AND SALE OF A HOME
...Holmes v. Worthey, 282 S.E.2d 919, 926 (Ga. Ct. App. 1981), aff'd, 287 S.E.2d 9 (Ga. 1982) (following Davis). But see Teodonno v. Bachman, 404 P.2d 284, 286 (Colo. 1965) (fraudulent concealment based on latent soil defect cannot exist without proof of defendant's actual knowledge of fact al......
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Chapter 5 - § 5.2 • MISREPRESENTATION AND CONCEALMENT
...Holmes v. Worthey, 282 S.E.2d 919, 926 (Ga. Ct. App. 1981), aff'd, 287 S.E.2d 9 (Ga. 1982) (following Davis). But see Teodonno v. Bachman, 404 P.2d 284, 286 (Colo. 1965) (fraudulent concealment based on latent soil defect cannot exist without proof of defendant's actual knowledge of fact al......
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Disciplinary Opinions
...the defendant is justified on the evidence presented, not whether the plaintiff established a prima facie case, citing Teodonno v. Bachman 158 Colo. 1, 4404 P.2d 284 (1965). Thus, the trial court sitting as trier of fact may determine the facts and render judgment against the plaintiff, cit......