Makeen v. Hailey
2015 COA 181
Colo. Ct. App.2015Background
- Akeem Makeen sued his father George Hailey in Oct 2012 over disputed real‑estate transactions (joint‑tenancy property and alleged promises to transfer other properties); Hailey denied promises and accused Makeen of fraudulently titling property.
- The case proceeded under Colorado’s CAPP and was plagued by repeated discovery disputes, multiple amended pleadings, and delays; both parties initially litigated pro se; Hailey obtained counsel shortly before trial and asserted counterclaims for the first time in Nov 2013.
- Makeen moved to dismiss Hailey’s breach of fiduciary duty and fraud counterclaims as time‑barred under Colorado’s counterclaim revival statute (§13‑80‑109); the trial court denied dismissal, severed the counterclaims, and later held separate bench trials.
- After trials on the claims and counterclaims, the court found in favor of Hailey on all claims, awarded damages, costs, and fees, and extinguished Makeen’s interest in the Utopia Property; the court discredited Makeen’s testimony.
- On appeal Makeen challenged: timeliness of the first two counterclaims; the denial of discovery sanctions and the early close of discovery; rulings on his competency/ADA accommodations and on joinder; he also sought reversal regarding the Tulare Property claims.
Issues
| Issue | Makeen's Argument | Hailey's Argument | Held |
|---|---|---|---|
| Timeliness of breach and fraud counterclaims under §13‑80‑109 (counterclaim revival) | Counterclaims were untimely because the revival period began when Hailey was served with Makeen’s initial complaint (Oct 2012) and Hailey waited >1 year to assert them | Even if claims arose from initial complaint, Hailey’s amended answer (Nov 2013) relates back under C.R.C.P. 15(c) to his original timely answer, making counterclaims timely | Counterclaims are timely: revival period runs from service of the first complaint that pleads the triggering claims, and Hailey’s amended answer and counterclaims related back to his original answer under Rule 15(c) |
| Discovery sanctions for alleged repeated CAPP violations | Mandatory sanctions required under CAPP/PPR; court abused discretion by not imposing sanctions | Sanctions were not mandatory for the discovery at issue (PPR 3.7 applies to initial disclosures only); court found no prejudice and that any noncompliance was justified/harmless | No abuse of discretion: sanctioning is discretionary here and the court reasonably found compliance or harmless/justified noncompliance |
| Early termination/close of discovery | Cutting off discovery prejudiced Makeen and prevented evidence on slander/defamation and property ownership | Court reasonably set and enforced discovery deadlines given long pendency and multiple amendments; Makeen did not show specific prejudice; many counterclaims were closely tied to his own claims so discovery overlap reduced prejudice | No abuse of discretion: discovery cutoff was within trial‑management authority and Makeen failed to show resulting prejudice |
| Competency/ADA accommodation and advisory counsel | Makeen was incompetent at trial (epilepsy/diabetes) and the court should have inquired and provided advisory counsel or ADA accommodations | Makeen never timely asked the court to adjudicate incompetency or seek ADA accommodations at trial; his advisory counsel request sought a contingency plan, not a competency determination | Claims not preserved; trial court did not abuse discretion in denying advisory counsel; post‑trial ADA/competency claims waived for appeal |
| Joinder of Teresa Hailey under C.R.C.P. 19 | Teresa (Hailey’s daughter) was an indispensable party for the slander/defamation claims and some counterclaims | Motion to join was untimely; Teresa has no demonstrated protectable interest; even if error, it was harmless because court found alleged statements substantially true | Denial of joinder not an abuse of discretion and, in any event, harmless given the merits ruling on defamation |
| Tulare Property claims | Trial court failed to enter judgment on Tulare Property claims | Court’s general findings rejecting contracts/promises applied to all properties | No remand: court’s findings disposed of the Tulare Property claims and judgment was entered implicitly |
Key Cases Cited
- E‑21 Eng’g, Inc. v. Steve Stock & Assocs., Inc., 252 P.3d 36 (Colo. App. 2010) (§13‑80‑109 permits otherwise time‑barred compulsory counterclaims filed within one year of service of the plaintiff’s complaint)
- Kelso v. Rickenbaugh Cadillac Co., 262 P.3d 1001 (Colo. App. 2011) (Colorado Rule 15(c) is substantively similar to federal Rule 15(c); federal decisions are persuasive)
- Lavarato v. Branney, 210 P.3d 485 (Colo. App. 2009) (purpose of relation‑back doctrine is to ameliorate technical statute‑of‑limitations bars)
- Sterenbuch v. Goss, 266 P.3d 428 (Colo. App. 2011) (statute‑of‑limitations application reviewed de novo when facts are undisputed)
- Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009) (litigation‑ending discovery sanctions are disfavored; cases should be decided on the merits)
- Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo. App. 2004) (appellate courts may affirm on any ground supported by the record)