*1 case, cannot occur until a ate in this imposed. has first been
lawful sentence is vacated and the cause is sentence resentencing.
remanded for ROY, JJ.,
NEY and concur. BRODERICK, D.
James M. and Karen
Plaintiffs-Appellees, McCOY, INC.,
McELROY AND Pru d/b/a
dential-McElroy McCoy Realtors, Inc., Properties, Inc., Prudential Prime
Defendants-Appellants.
No. 96CA0712. Appeals,
Colorado Court
Div. III. 16, 1997.
Oct. Rehearing Denial of
As Modified on
Jan. 1998. July Denied 1998.
Certiorari
(contract). Although there was no written and sell- listing agreement between brokers ers, provided rep- that brokers the contract trust, of resented sellers and owed “duties exclusively to sellers. loyalty, and confidence” buyers required apply for The contract days of financing within five the date that, provided and execution of the contract buyers’ approved application if was not on 15, 1993, the contract would before October also contained an terminate. contract provision. March, P.C., Mayatt, March Brad & J. buyers financing, for timely applied After Collins, Plaintiffs-Appellees. Fort for they appraisal learned that valued Grimm, P.C., Grimm, M. M. Victor Victor In property price. real for less than sale Krassa, Madsen, LLC, Stephen Kumli & C. information, buyers reliance antici- Miller, Boulder, Defendants-Appellants. for pated financing request that their for would Johnson, Rothgerber, Appel, & Powers be denied. Clark, Denver, Vogt, for Richard K. Joann L. 14, 1993, On brokers informed October Curiae,
Amicus
National Association Real-
buyers
availability for
other
sale of
tors, Colorado Association of Realtors and
buyers’
on
property
prepared,
real
and
be-
Ft.
of Realtors.
Collins Board
half,
purchase
for
real
a contract
of that
property. Buyers purchased
prop-
the other
Judge
Opinion by
NEY.
1993,
erty
and on
same
in late October
Defendants,
Dixon,
Ray
McElroy and
against
day,
buyers,
filed
action
sellers
Inc.,
Prudential-McElroy
McCoy,
d/b/a
(as
alleging
to the first
breach
contract
Inc.,
Brokers,
McCoy
and Prudential Prime
property)
seeking
and
costs and
(brokers)
Inc.,
Properties,
appeal
trial
their
subsequently
fees. Sellers
amended
and
court’s award of
certain
against
complaint
claim
brokers
to include a
in
M.
costs
brokers
favor
James
duty.
fiduciary
breach
(sellers)
D.
on their
and Karen
Broderick
A
trial
in October 1995
bench
was held
duty.
fiduciary
Brokers
claim breach
orally
after which the trial court
ruled
appeal
award of
the trial court’s
actual
buyers had breached their contract with sell-
damages, attorney
and costs
fidu-
ers and that brokers had breached their
jointly
severally with
brokers
co-defen-
essence,
ciary duty
by,
to sellers
in
abandon-
(buyers)
dants William and Karen Eberhart
ing
their efforts on behalf
sellers
(who
appeal).
are
buyers.
transferring
loyalty
their
part.
in part and reverse in
affirm
1996,
February
In
trial
held a
1993, buyers approached
In late summer
1996,
In
hearing on sellers’
March
costs.
locating
in
request
a
brokers to
assistance
reflecting
a
order
court entered written
buyers
type
property
certain
of real
wished
previous
ruling.
oral
The court concluded
purchase. There was no written or oral
jointly
agreement
buyers and brokers.
between
severally
damages in the
liable for actual
approached
inquired
sellers
$14,437.13and,
pursuant
13-
amount of
selling
be interested
whether
would
16-122, C.R.S.1997,
in the
amount
costs
not,
property which was
at that
certain real
$969.75.
time,
ap-
on
market.
When
proached
it was unclear whether bro-
April
Following
hearing
a
buyers.
representing
kers were
an amended
award-
court entered
ing attorney
pursuant to the
contract
September
exe-
$22,500.
amount
property
real
favor of sellers
a
for sale of the
cuted contract
And,
previous
Although
having reconsidered its
had been determined.
(in
was, therefore,
costs,
April
appeal
the trial
awarded sellers
1996 notice
$969.75) premature,
notice
previous
addition to the
their June 1996 amended
timely
deposition
appeal
respect
their
in the amount of of
filed with
costs
$1,541.55
May
judgment.
trial court’s
1996 amended
expert
witness fees
*3
(notice
appeal
4
specified
amount
See C.A.R.
must be filed
The order
that
$945.
forty-five days
entry
buyers
jointly
within
of the date of
were
and several-
ly
attorney
judgment
being appealed).
liable for the
or order
We
award of
fees and
reject
costs.
thus
sellers’ assertion that we are
jurisdiction
without
to decide the merits
appeal by
This
brokers followed.
appeal.
this
II
matter,
preliminary
As a
we address
ap
sellers’ contention that
notice
contend that the trial court
that, thus,
peal
timely
was not
filed and
determining
parties
erred in
that
were
jurisdiction
court lacks
to entertain brokers’
subject
to the contract and therefore
to the
appeal.
reject
We
this contention.
attorney
fee
of the contract. We
timely filing
appeal
The
of a notice of
agree.
mandatory
jurisdictional.
is
Concelman
The trial court determined that brokers
181,
Ray,
Colo.App.
36
leave to appeal amend the notice of to include parties those who are not to the contract. the issue of fees. its order Airlines, See Frontier Inc. v. United Air motion, granting brokers’ observed Lines, Inc., (D.Colo.1989). F.Supp. 758 1399 appeal that brokers’ notice of amended .“timely filed.” We conclude that the determination in
Here, Weston, the issue of the 44 Colo.App. sellers’ Mitten v. 615 P.2d (1980), supplemental fees was not to the agent 60 that a real estate is not a sought by party substance of the relief sellers but to a contract for buyer sale between a seller, rather “part constituted of the total relief and a plain language controls. The sought” from under brokers and the contract at issue here does not contem- Metropolitan plate therefore, parties, See Corinthian Hill brokers as Keen, (Colo.App. provision District v. 812 P.2d awarding attorney contract 1991). related to the contract fees to a applicable is not was not final until the claim for 13-21-111.5(1), C.R.S.1997, limits § here cause paragraph, In its contract first 13-21-111.5, C.R.S.1997, § con- scope as parties contract
identified
above,
liability
cerning pro
As noted
rata
defendants
and the sellers.
rep-
“brought as a result of a death
specified
that the brokers
actions
contract
those
allegiance
person
injury
property.”
owed their
resented sellers and
or an
solely to them. The trial court relied
that,
conclude
under
state
determining
provision in
13-21-111.5(2)
record,
applicable,
is not
However,
con-
we
the contract.
thus,
joint
imposition
the trial court’s
language
provision merely
clude
liability
disturbed.
will
several
Estate
and the Real
mandated
statute
to a
requiring written disclosure
Commission
IV
*4
the
buyer
agency relationship
a
to
of broker’s
12-61-808, C.R.S.1997;
§
De-
See
seller.
reject
the
brokers’ assertion that
We
F-l,
Agencies
4
Regulatory
Rule
partment
awarding deposition
in
costs to
court erred
Reg.
Code Colo.
726-1.
sellers.
fiduciary
indepen-
duties
A broker’s
exist
upon
review of the record as
Based
our
dently
of this
Bro-
irrespective
by
in
authority
as the
cited
brokers
well
parties
not
to a contract sim-
kers are
made
costs, Cherry
to
opposition
the award
disclosing their
ply by reciting language
Voelker,
v.
859
School District No. 5
Creek
See, §
agency relationship to sellers.
12-61-
(Colo.1993),
say
the
we cannot
that
P.2d 805
(written
808(2)(d)(II),C.R.S. 1997
disclosure
deposition
consti
court’s award of
costs
trial
seller,
agency relationship
broker to
Therefore,
an abuse of its discretion.
tuted
not,
thereof,
buyer’s acknowledgment
does
Dewey
will
be disturbed.
the award
not
See
itself,
by
the bro-
a contract with
constitute
Hardy,
(Colo.App.1995)(trial
appeal pursuant to the Ill we have deter- in the contract. Because applicable provision not to bro- mined that court next contend that the Brokers kers, deny request. we that 13-21-111.5(2), failed, § in C.R.S. violation findings “determining special to make VI negligence fault attrib percentage the parties” and to enter its utable to each of the theory of of at As an alternative recover in damages and costs accor actual torney appellees had raised the the We conclude that brokers’ dance therewith. Legitimate consequences Doctrine as ex 13-21-111.5(2) misplaced. § is reliance Co., v. Moore and 874 pressed Stevens 1994). (Colo.App. the trial P.2d 495 Because consid A statute must read and attorney fees on the court awarded basis legislative as a to ascertain the ered whole argu it this the contract never addressed harmonious, consistent, give intent trial court ment. We therefore remand the parts. Vail and sensible effect to its for it to consider this issue. Associates, Ap Inc. v. Board Assessment (Colo.App.1988). peals, 765 593 P.2d damages and costs The award of actual 13-21-111.5(2) against is affirmed. The award rely upon reversed, against brokers trial is it error for the proposition that cause remanded to the trial court damages, and costs and the is to award actual court modify with buyers jointly and sever- accordance however, assertion, opinion. be- ally. reject contract, HUME, J., arising out of shall concurs. prevailing party all award to the reasonable TURSI,* J., part concurs in and dissents including attorney expense, fees.” costs part. litigation that the here It cannot be denied concurring Judge part TURSI arose out this contract dissenting in part. prevailing parties. were the respectfully part dissent from that 12-16-808(2)(d)(ll) merely holds Section part majority opinion reversing does not con- that disclosure of seller/broker plaintiff. Contrary a and the stitute contract between broker holding majority, to the the rule in buyer. Again confusion of the issues here Weston, Mitten 44 Colo.App. 615 P.2d majority a is is not demonstrated. This (1980) is inapposite undisputed to the buyers. by the It a suit suit underlying dispositive claim facts sellers’ and the And 12-61-808(2)(d)(11) here. Nor is SECTION thus, legal parlance, litiga- in common when applicable. C.R.S. out are tion arises of a contract entities Hence, parties. anything contrary not- Mitten, plaintiffs withstanding, properly at- the court awarded Mitten, sellers. contract in Under the fees to in this though held brokers were *5 16(c) litigation. Paragraph See of the con- parties with the brokers had no tract. obligation contractual to and were not parties to the transfer of land as de- Although parties buying not brokers were problem scribed I the contract. have no selling question, they or the land in were with the rule of Mitten as applied the facts agents as and were sellers therein. Thus, obligated to them under brought litigation against sellers when question The contract in here created dual arising brokers for a claim out privities, one sellers between duty, provision concerning breach at- privity one between sellers and The implicated fees was buy- under contract between sellers and by operation of law the undisputed. ers litigation. Party as used herein is a word privity under the contract between art. specifically sellers and brokers is created appealed have portion which, Paragraph execution judgment concerning the breach of their “party” brokers, “party” spe- and the Rather, fiduciary duty to sellers. would cifically paragraph confirms 19 of the con- the full of the judgment leave burden trust, loyalty tract brokers duties of buyers, fees on the their co-defen- only. confidence seller dants, proceeded guidance. who under their Here, undisputed it is that the broker vio- Hence, under the contract in its en- read fiduciary duty lated his under the sellers tirety giving parts meaning, And, thereof I the contract. distinct from the contract Mitten, would hold that the trial court did not err portion the contract here in assessing attorney fees the brokers. completed by listing company seller and Therefore, since in the por- I concur other specifically paragraph setting referenced the majority opinion, tions of affirm trust, would loyalty, out the brokers’ duties of entirety. confidence the sellers. Mitten, again,
And in distinction to
contract here contains a that:
“Anything contrary notwithstanding, any litigation
in the event arbitration * 24-51-1105, (1996 Sitting by assignment Cum.Supp.). Justice under Chief C.R.S. Const, VI, 5(3), provisions of Sec. the Colo. art.