Varner v. District Court for Fourth Judicial Dist., 80SA344

Docket NºNo. 80SA344
Citation618 P.2d 1388
Case DateNovember 03, 1980
CourtSupreme Court of Colorado

Page 1388

618 P.2d 1388
Richard D. VARNER, Petitioner,
of Colorado, and The Honorable Bernard R. Baker,
as one of the Judges of the District
Court, Respondents.
No. 80SA344.
Supreme Court of Colorado,
En Banc.
Nov. 3, 1980.

Page 1389

Bennett, Heinicke & Hollaway, Dale A. Gerlach, Colorado Springs, for petitioner.

Rector, Retherford, Mullen & Johnson, Jerry A. Retherford, Neil C. Bruce, Colorado Springs, for respondents.

QUINN, Justice.

The petitioner, Richard D. Varner, in this original proceeding under C.A.R. 21 seeks an order directing the district court of El Paso County to grant a motion to amend his complaint. We issued a rule to show cause and now make the rule absolute.

The pending litigation in the district court involves the purchase and subsequent repossession of a pickup truck. Realizing that the merits of this controversy must await final resolution at trial, we outline only those facts that are necessary to an understanding of the procedural issue raised by this proceeding.

On or about March 5, 1975, the petitioner entered into a purchase contract with Daniels Motor Company (DMC) for a new 1975 Chevrolet pickup truck. As part of the contract the petitioner made a down payment of $256.35 and traded in his 1965 GMC pickup truck, leaving a balance due of $3,289.70. Shortly after taking possession of the pickup truck, petitioner experienced mechanical difficulties which DMC would not or could not repair. On March 31, 1975, DMC took possession of the pickup truck without petitioner's knowledge, even though it had no security interest in the vehicle. Thereafter DMC refused to return the repossessed vehicle, the trade-in truck, or petitioner's initial cash payment of $256.35.

Petitioner obtained the services of an attorney in the latter part of March 1975. However, the attorney, over petitioner's protest, delayed filing a complaint against DMC until May 1979. Shortly after the filing of an answer by DMC, and before the case had been set for trial, petitioner discharged his attorney and engaged the services of present counsel. Petitioner's new attorney immediately requested leave under C.R.C.P. 15 to file an amended complaint due to the failure of the original complaint to set forth clearly the nature of petitioner's claims for relief and the inclusion of erroneous factual allegations therein. The motion to amend sought to plead separate claims for breach of contract, conversion, breach of warranty, and outrageous conduct, all of which arose out of the transaction involving the sale and repossession of the 1975 Chevrolet pickup truck.

The respondent court heard the petitioner's motion to amend on July 2, 1980. Both parties admitted during the hearing that the original complaint was poorly drafted and that the issues underlying the complaint were not clearly identified. Petitioner's attorney also pointed out that the original complaint erroneously stated that the petitioner had returned the 1975 Chevrolet

Page 1390

pickup truck to DMC when in fact DMC repossessed that vehicle without the petitioner's consent. The trial court denied the motion to amend and gave no reason for...

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39 cases
  • U.S. v. Bell
    • United States
    • Colorado Supreme Court
    • 25 Agosto 1986
    ...freely given when justice so requires." The decision to grant an amendment is within the trial court's discretion. See Varner v. District Court, 618 P.2d 1388 (Colo.1980). We have interpreted C.R.C.P. 15(a) liberally in allowing amendments. See Eagle River Mobile Home Park v. District Court......
  • Espinoza v. O'Dell
    • United States
    • Colorado Supreme Court
    • 4 Mayo 1981 a matter within the sound discretion of the trial court, if it finds that justice so requires. C.R.C.P. 15(a). Varner v. District Court, Colo., 618 P.2d 1388 (1980); Fischer v. District Court, 193 Colo. 24, 561 P.2d 1266 (1977); Coon v. Guido, 170 Colo. 125, 459 P.2d 282 Civil Conspiracy......
  • J.P. v. District Court In and For 2nd Judicial Dist. of Denver
    • United States
    • Colorado Supreme Court
    • 2 Mayo 1994
    ...for granting jurisdiction in an original proceeding. Sanchez v. District Court, 624 P.2d 1314, 1316 (Colo.1981); Varner v. District Court, 618 P.2d 1388, 1390 (Colo.1980). Additionally, we recognize that J.P.'s opportunity to receive an adequate remedy on appeal is diminished because she ma......
  • Sterenbuch v. Goss, 10CA1459.
    • United States
    • Colorado Court of Appeals
    • 13 Octubre 2011
    ...v. Four Corners Encampment, 179 P.3d 139, 146 (Colo.App.2007). “[L]eave to amend is not to be granted automatically,” Varner v. Dist. Court, 618 P.2d 1388, 1390 (Colo.1980), and it “may be denied where, for example, the moving party has unduly delayed in seeking the amendment.” Akin, 179 P.......
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