Walter v. Hall

Citation940 P.2d 991
Decision Date26 September 1996
Docket NumberNo. 95CA0509,95CA0509
PartiesPatricia L. WALTER and Reuben A. Walter, Plaintiffs-Appellees, v. Larry L. HALL, Craig A. Hammond and Wild Horse Ranch, a partnership d/b/a Longhorn Ranch, Defendants-Appellants. . IV
CourtCourt of Appeals of Colorado

Roberta Earley, Colorado Springs, for Plaintiffs-Appellees.

Mark A. MacDonnell, Las Animas, for Defendants-Appellants.

Opinion by Judge TAUBMAN.

In this action based on allegations of trespass and deceptive trade practices, defendants, Larry L. Hall, Craig A. Hammond, and Wild Horse Ranch, appeal from the verdicts and judgment against them and in favor of plaintiffs, Patricia L. and Reuben A. Walter. We affirm in part, reverse in part, and remand for further proceedings.

In 1985, a developer established a subdivision known as Longhorn Ranch Phase III. Defendants Hall and Hammond worked for the original developer selling individual lots in the subdivision. In 1989, a bank acquired the property through foreclosure and two years later defendants purchased the property. However, the subdivision had never been registered with the Colorado Real Estate Commission (the commission).

Defendants thereafter applied to the commission for registration and certification as a subdivision developer. At that time, defendants disclosed that they had sold at least 47 properties prior to registration. Defendants also supplied documents to the commission that purported to show that prospective buyers would have legal access to lots within the subdivision. One of the two access routes to the subdivision was a road that runs across plaintiffs' pasture.

Although no easement existed for the use of that road, defendants had nevertheless indicated to purchasers of lots in the subdivision that plaintiffs' road was a proper means of access to their property. As a result, the traffic across plaintiffs' pasture increased considerably. In addition, fences across the plaintiffs' road were torn down, locks and chains were cut, and gates were left open. Plaintiffs lost two pasture leases because the gates and fences on the property had been torn down.

They subsequently filed a complaint against defendants alleging trespass, misrepresentation, unlawful taking, and deceptive trade practices under the Colorado Consumer Protection Act, § 6-1-101, et seq., C.R.S. (1992 Repl.Vol. 2) (CCPA). Also, defendant Hall filed a complaint against plaintiffs, alleging that the access road described in the plaintiffs' complaint had become a public highway by prescription. Before trial, the two cases were consolidated.

During trial, the court denied defendants' motion for a directed verdict on plaintiffs' claims brought under the CCPA and on their claims for damages. However, the trial court granted plaintiffs' motion for a directed verdict on their claim of trespass and on defendants' claim that a public highway had been established by prescription. Thereafter, the jury awarded plaintiffs actual damages, which were trebled pursuant to the CCPA, and also punitive damages, for a total of $244,000. This appeal followed.

I.

Defendants first contend that the trial court erred when it directed a verdict in favor of plaintiffs on defendants' claim that a public highway had been established by prescription. We disagree.

Motions for a directed verdict are to be granted only when the evidence has such quality and weight as to point strongly and overwhelmingly to the fact that a reasonable jury could not arrive at a contrary verdict. Jorgensen v. Heinz, 847 P.2d 181 (Colo.App.1992).

In passing on a motion for directed verdict, the trial court must view the evidence in the light most favorable to the party against whom the motion is directed, and every reasonable inference to be drawn from the evidence presented is to be considered in the light most favorable to that party. Vikman v. International Brotherhood of Electrical Workers, 889 P.2d 646 (Colo.1995).

Under § 43-2-201(1)(c), C.R.S. (1993 Repl.Vol. 17), a road over private lands that has been used adversely by the public without interruption or objection for 20 or more consecutive years is deemed a public highway by prescription. A party claiming a public highway by adverse use must prove that: (1) the public has used the road under a claim of right and in a manner adverse to the landowner's property interest; (2) the public has used the road without interruption for the statutory period of 20 years; and (3) the landowner had actual or implied knowledge of the public use of the road and made no objection. Board of County Commissioners v. Flickinger, 687 P.2d 975 (Colo.1984).

The trial court found that the defendants had presented no evidence to show adverse use by the public, but rather the evidence demonstrated that the use of the road had been permissive for ranching purposes only. Further, the record clearly reveals that plaintiff did object to the use of the road by the public. Indeed, it is undisputed that plaintiffs had erected fences with chains and locked gates on the road. See Board of County Commissioners v. Flickinger, supra (while not conclusive, the placement of a gate to obstruct free travel along a road will ordinarily render public use of a road permissive rather than adverse).

Thus, in viewing the evidence in the light most favorable to defendants, we conclude that the evidence was such that a reasonable jury could not have arrived at a contrary verdict. Accordingly, the trial court did not err in directing a verdict. Vikman v. International Brotherhood of Electrical Workers, supra.

II.

Next, defendants contend that the part of the jury verdict awarding actual damages improperly was based on gross profits rather than net profits. In effect, defendants challenge the court's instruction as to damages and argue that the trial court erred in not using their proposed instructions on net profits. Defendants also challenge the sufficiency of the evidence supporting the award of actual damages. We find no reversible error.

A.

In determining the effect of a particular jury instruction, the instructions must be read as a whole and, if taken as a whole, they adequately inform the jury of the law, there is no reversible error. Idrogo v. People, 818 P.2d 752 (Colo.1991).

Damages sustained by a business must relate to loss of net profits; they may not be speculative, remote, imaginary, or impossible to ascertain. Lee v. Durango Music, 144 Colo. 270, 355 P.2d 1083 (1960). However, where operating expenses are fixed, gross profits may be awarded because they are equivalent to net profits. P & M Vending Co. v. Half Shell of Boston, Inc., 41 Colo.App. 78, 579 P.2d 93 (1978).

Here, believing that net profits was the appropriate measure of damages, defendants tendered a jury instruction on the trespass claim that read in pertinent part: "To the extent that any actual damages have been so proved by the evidence, you shall award an amount which will reasonably compensate the Plaintiffs for ... the reasonable net profit of any lease opportunities lost." Defendants also tendered a related instruction applicable both to the trespass and CCPA claims.

The court rejected defendants' proposed instructions and instead instructed the jury on the trespass claim that: "To the extent that any actual damages have been so proved by the evidence, you shall award an amount which will reasonably compensate the Plaintiffs for ... the loss of any lease income caused by the trespass." No instruction on the measure of damages was given concerning the CCPA claim.

Here, there was evidence presented to the jury indicating that plaintiffs lost two pasture leases because of defendants' actions and that, under such pasture leases, plaintiffs would have provided various services, such as checking regularly on cattle, maintaining fences, providing cake, water, and salt, and ensuring the health of the cattle. However, there was undisputed testimony that the prospective lessees would have paid for supplies, such as cake and liquid feed, in addition to the cost of leasing the pasture land. Further, there was no evidence indicating that plaintiffs would have incurred any out-of-pocket expenses, except for gas for their pick-up truck. Thus, for example, there was no testimony that plaintiffs intended to hire any additional ranch hands to check on cattle under any pasture leases they would have obtained.

Under these circumstances, there was no difference or only a minimal difference between plaintiffs' gross profits and net profits; hence, an instruction permitting the jury to award actual damages was proper. See Jefferson-Western Corporation v. Chefas, 670 P.2d 431 (Colo.App.1983) (where there was no evidence that would indicate there were any marketing expenses attributable to a 10 percent crop loss, the trial court did not err in refusing to instruct the jury on net profits); see P & M Vending Co., Inc. v. Half Shell of Boston, Inc., supra (actual damages were measured by loss of gross profits where evidence showed plaintiff's expenses were fixed and that there would be no difference or only a minimal difference between plaintiff's revenues and plaintiff's net profits).

Thus, because the instructions as a whole properly apprised the jury of the law, we conclude that there was no reversible error in refusing the defendants' tendered instructions. See People v. Orona, 907 P.2d 659 (Colo.App.1995).

B.

Because we have concluded that the trial court's jury instruction in effect allowing the jury to award damages based upon gross profits was proper, we do not address defendant's contention that sufficient evidence was not offered at trial as to the nature of plaintiffs' expenses associated with their lost leases.

Further, based upon our review of the record, we conclude there was sufficient evidence presented from which the jury could conclude that plaintiffs' actual damages were...

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16 cases
  • Hall v. Walter, 97SC100
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    ...Justice MULLARKEY delivered the opinion of the court. We granted certiorari to review the court of appeals' judgment in Walter v. Hall, 940 P.2d 991 (Colo.App.1996), affirming the trial court's order awarding treble damages to the respondents, Patricia and Rueben Walter (the Walters), pursu......
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