Vigoda v. Denver Urban Renewal Authority, 80SC293

• Decision Date: 07 June 1982
• Docket Number: No. 80SC293,80SC293
• Citation: 646 P.2d 900
• Parties: Louise VIGODA, d/b/a Tower Associates, Petitioner, v. DENVER URBAN RENEWAL AUTHORITY, and Alex Holland, Sterling Kahn, MarianHurwitz, Omar Blair, V. P. Cline, Thomas J. Gargan, John W. Hall, Mary Baca,Robert J. Holton, J. B. Jobe and Walter Emery, as the Board of Commissioners ofthe Denver UrbanRenewal Authority, Respondents.
• Court: Colorado Supreme Court

Page 900

646 P.2d 900

Louise VIGODA, d/b/a Tower Associates, Petitioner, v. DENVER URBAN RENEWAL AUTHORITY, and Alex Holland, Sterling

Kahn, MarianHurwitz, Omar Blair, V. P. Cline, Thomas J.

Gargan, John W. Hall, Mary Baca,Robert J. Holton, J. B. Jobe

and Walter Emery, as the Board of Commissioners ofthe Denver

UrbanRenewal Authority, Respondents.

No. 80SC293.

Supreme Court of Colorado, En Banc.

June 7, 1982.

Rehearing Denied June 28, 1982.

George L. Vamos, Denver, for petitioner.

Conover, McClearn, Heppenstall & Kearns, P. C., Frederic K. Conover, Michael S. McCarthy, Denver, for respondents.

ROVIRA, Justice.

Louise Vigoda, d/b/a Tower Associates (Vigoda), petitioned for certiorari to review the judgment of the court of appeals, Vigoda v. Denver Urban Renewal Authority, Colo.App., 624 P.2d 895 (1980), affirming in part and reversing in part the district court's granting of a summary judgment in favor of Denver Urban Renewal Authority (DURA).

The petitioner sought certiorari on the grounds that in affirming the judgment of dismissal of a claim for relief based on promissory estoppel, and in the issuance of directions to the trial court on remand of a civil rights claim based on 42 U.S.C. § 1983 (1976), the court of appeals erred. We agree.

I.

During the summer of 1977, DURA issued a Prospectus soliciting proposals for the purchase and rehabilitation of the Daniels and Fisher Tower (Tower) located within the Skyline Urban Renewal Project. The Prospectus stated that a developer would be required to submit an "Offer to Negotiate," the form and content of which was prepared by DURA, by September 15, 1977; that within thirty days following the submittal of offers DURA would select one developer who would have exclusive negotiation rights for a period of ninety days; that DURA reserved the right to extend the negotiation period at any time; and that the selected developer would make a good faith deposit of $7,268 and make appropriate studies. It also required the selected developer to submit preliminary design plans within the first sixty days of the negotiation period.

The Offer to Negotiate required the developer to negotiate with DURA for ninety days after DURA's acceptance of the Offer for the redevelopment of the Tower, and the Offer would be irrevocable for ninety days prior to DURA's acceptance "or upon such earlier date as the Authority (DURA) may reject this offer in writing."

As required by the Prospectus, Vigoda submitted her Offer to Negotiate on September 15, 1977, in the form prescribed by DURA, together with her proposal for restoration of the Tower. On December 1, 1977, DURA accepted and executed the Offer to Negotiate. ¹

Shortly after negotiations commenced, Vigoda became aware of plans which DURA had for construction of a hotel on land immediately adjacent to the Tower. She expressed views critical of this development to DURA, the press, and other persons who were concerned about the preservation and rehabilitation of the Tower. As a result, DURA received numerous letters from public officials, including the Attorney General and the Governor.

In January 1978, DURA sent Vigoda a copy of a proposed Agreement for Sale of Land for Redevelopment. Further, negotiations concerning terms and the project completion date commenced. The parties did not come to an agreement at that time, and a subsequent meeting was scheduled between Vigoda and the DURA commissioners on February 9, 1978, for the express purpose of arriving at a mutually agreeable date for the completion of the rehabilitation of the Tower.

At that meeting, the commissioners refused to discuss the project completion date, and several of the DURA commissioners were critical of Vigoda's public airing of her concerns about the hotel development on land adjacent to the Tower and her efforts to get support from government officials. The commissioners told Vigoda to cease her "agitation" and set March 9, 1978, as the day they would further consider the sale and redevelopment of the Tower. Vigoda was instructed to submit firm evidence of financing and feasibility of the project by that date.

On March 8, DURA cancelled the March 9 meeting. Subsequently, on March 16, DURA unilaterally adopted a resolution terminating the relationship between it and Vigoda and returned her deposit.

During the period between December 1, 1977, and March 16, 1978, Vigoda spent substantial sums for plans and studies. She claims that DURA's refusal to negotiate and unilateral termination of the negotiation process rendered these expenditures valueless.

Vigoda filed a complaint in the Denver District Court in which she asserted claims for breach of contract, promissory estoppel, outrageous conduct, and violation of her First Amendment rights pursuant to 42 U.S.C. § 1983 (1976). DURA filed a Motion to Dismiss or, in the alternative, for Summary Judgment. Relying on the Prospectus, the Offer to Negotiate, resolutions of DURA, affidavits, and depositions, the trial court determined that there were no undisputed facts and concluded, as a matter of law, that the Offer to Negotiate created no more than an unenforceable agreement to agree, and that the complaint failed to state a claim for promissory estoppel or violation of constitutional rights. With regard to the claim for outrageous conduct, the court determined that DURA was a public entity, thereby causing the claim to be barred by the Colorado Governmental Immunity Act, and the facts, taken in the light most favorable to Vigoda, failed to establish a claim for outrageous conduct.

The court of appeals affirmed except as to Vigoda's claim under 42 U.S.C. § 1983 (1976). As to that claim, the appellate court concluded that the presence of disputed facts prevented the entry of summary judgment.

In her petition for certiorari, Vigoda only seeks review of two issues: first, the dismissal of her claim for promissory estoppel; second, that the test adopted by the court of appeals on the section 1983 claim improperly allocates the burden of proof to be borne by Vigoda at trial.

II.

Holding the doctrine of promissory estoppel inapplicable, the court of appeals concluded that DURA could reject the Offer to Negotiate at any time after acceptance. It based its decision on paragraph 4b of the Offer to Negotiate. We do not agree.

Paragraph 4b provides:

"Because disposals of urban renewal project land require the prior concurrence of HUD and are contingent upon an absence of other proposals which must be solicited by publication according to state statute, this proposal shall be irrevocable for the ninety (90) day period, or upon such earlier date as the Authority may reject this offer in writing. By written agreement the parties may from time to time extend the irrevocable period of this offer."

Our reading of paragraph 4b satisfies us that it was only effective prior to DURA's acceptance of Vigoda's Offer to Negotiate. The purpose of paragraph 4b was to permit DURA a period of ninety days after the submission of the Offer to Negotiate in which to consider the Offer, obtain the concurrence of the Department of Housing and Urban Development, and comply with state statutes. During the ninety-day consideration period, paragraph 4b precluded Vigoda from revoking her Offer to Negotiate until the earlier of either the expiration of ninety days from the date of submission or DURA's rejection of the Offer in writing.

The Offer to Negotiate, when compared with the Prospectus, supports the conclusion that there were two ninety-day periods involved. The first ninety-day period related the time during which the Offer to Negotiate was irrevocable by Vigoda. The second ninety-day period is found in the Prospectus, and it commenced at the time that DURA accepted the Offer. During this period, the selected developer would have exclusive negotiation rights for ninety days. ²

Our conclusion that two ninety-day periods were contemplated by the parties is supported by further analysis of the Offer and the Prospectus. During the ninety-day consideration period in which Vigoda was precluded from revoking her Offer, any extension required the written agreement of the parties. During the ninety-day negotiation period following DURA's acceptance of the Offer, the prospectus authorized DURA to unilaterally extend the period without the agreement of Vigoda.

If there were only one ninety-day period (the period of negotiation following acceptance of the Offer) and DURA expressly reserved the right to unilaterally extend such period, the requirement of a written agreement between the parties for extension of such ninety-day period as imposed by paragraph 4b would be superfluous. ³

DURA contends that, since it did not negotiate with anyone else during the negotiation period, it therefore did not breach its promise to negotiate with Vigoda. The simple answer to this argument is that Vigoda did not allege in her complaint that DURA negotiated with third persons. Her allegation was that DURA refused to negotiate with her for ninety days, not that DURA negotiated with others.

DURA also suggests that an impasse developed during negotiations, and therefore "it becomes difficult, if not impossible, to define as a matter of law the obligation of the parties to meet and discuss the negotiating obstacle." The term "impasse" presupposes a reasonable effort of good faith bargaining to reach agreement. See NLRB v. Bancroft Mfg., 635 F.2d 492 (5th Cir. 1981); NLRB v. Big Three Industries, Inc., 497 F.2d 43 (5th Cir. 1974). Here Vigoda has alleged that DURA refused to negotiate, and such refusal constituted a clear breach of its promise to negotiate with her for ninety days. There is substantial conflict in the record as to whether there was an impasse or whether DURA refused to negotiate. This is a question of fact which precludes the resolution of such an issue on motion for summary judgment. See Roderick v. City of Colorado Springs, 193 Colo. 104, 563...