Makeen v. Hailey
2015 COA 181
| Colo. Ct. App. | 2015Background
- Akeem Makeen sued his father George Hailey over disputed real estate transactions; Hailey answered and later (with counsel) asserted counterclaims including breach of fiduciary duty and fraud.
- Makeen’s initial complaint (Oct 2012) pleaded claims about the Utopia property; after multiple amended pleadings and discovery disputes, Hailey filed counterclaims in Nov 2013 in an amended answer.
- Makeen moved to dismiss Hailey’s first and second counterclaims as untimely under the counterclaim-revival statute; the trial court denied the motion, severed the counterclaims, and later found for Hailey after bench trials, awarding damages, costs, fees, and extinguishing Makeen’s interest in the Utopia property.
- The trial court found many issues turned on credibility and expressly discredited Makeen.
- On appeal, Makeen challenged timeliness of counterclaims, discovery rulings (including refusal to impose sanctions and early cutoff), competency/ADA accommodation and joinder denial; Hailey sought appellate fees for frivolous claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of breach-of-duty and fraud counterclaims (§13-80-109 revival) | Revival period began when initial complaint (Oct 2012) was served; Hailey’s Nov 2013 counterclaims were >1 year and thus barred | Counterclaims relate back under C.R.C.P. 15(c) to Hailey’s original timely answer, so they are timely | Court: Revival period runs from first complaint asserting the triggering claims, but Hailey’s amended answer/counterclaims relate back to original answer under Rule 15(c); counterclaims are timely |
| Discovery sanctions (CAPP/PPR) | Sanctions mandatory for CAPP discovery violations; trial court abused discretion by not imposing sanctions | Alleged noncompliance was substantially justified and harmless; applicable PPR provisions discretionary for these discovery issues | Court: No abuse of discretion; mandatory sanction rule did not apply to the discovery at issue and any violations were justified/harmless |
| Termination/limitation of discovery | Cutting off discovery in Oct 2013 was premature and prejudiced Makeen | Court had broad docket-management discretion; Makeen failed to show specific prejudice | Court: Discovery cutoff was within discretion; Makeen showed no prejudice that would require reversal |
| Competency / ADA accommodation | Makeen (pro se) asserted epilepsy/diabetes; requested advisory counsel and later claimed seizures during trial; court should have inquired and accommodated | Makeen never timely raised competency or requested ADA accommodations before/at trial; court offered contingency/advisory arrangements; no authority for advisory counsel in civil cases | Court: Issues unpreserved or unsupported; trial court did not abuse discretion; ADA/competency claims not considered on appeal |
| Joinder of Teresa Hailey (C.R.C.P. 19) | Teresa was the true actor for slander/defamation and an indispensable party; she should have been joined | Motion to join untimely; Teresa’s rights not implicated; any error harmless because court found statements substantially true | Court: Denial of joinder not an abuse of discretion and, in any event, harmless because claims would fail regardless |
| Tulare Property claims | Trial court failed to enter judgment as to Tulare Property claims | Court applied its broader findings rejecting contract/promissory-estoppel claims on all properties | Court: Findings covered Tulare Property claims; no remand required |
| Request for appellate fees by defendant | N/A | Appeal defended as frivolous in part; seeks fees under C.A.R. 38(b) | Court: Portions of Makeen’s appeal were frivolous; award of attorney fees and costs on those issues was appropriate |
Key Cases Cited
- E-21 Eng’g, Inc. v. Steve Stock & Assocs., Inc., 252 P.3d 36 (Colo. App. 2010) (counterclaim-revival statute permits otherwise time-barred counterclaims if compulsory and filed within one year of the complaint that triggers them)
- Sterenbuch v. Goss, 266 P.3d 428 (Colo. App. 2011) (de novo review of statute-of-limitations application when facts undisputed)
- Lavarato v. Branney, 210 P.3d 485 (Colo. App. 2009) (relation-back doctrine aims to avoid technical limitations bars and ease procedural problems)
- Beaver Creek Prop. Owners Ass’n v. Bachelor Gulch Metro. Dist., 271 P.3d 578 (Colo. App. 2011) (relation-back doctrine tied to policy of statutes of limitation)
- Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009) (litigation-ending discovery sanctions disfavored; cases should be decided on merits)
- Mitchell v. Ryder, 104 P.3d 316 (Colo. App. 2004) (standards for awarding fees on frivolous appeals under appellate rule)