Vincent v. Clean Water Action Project

expert on reject was asked direct also defendant’s We corporations any nonprofit that examination about es allowing to collect PFCs ECAT counties, multi-year by authorized tablished about the constitution are constitutes county enterprise, The an pledge obligation or revenue. al definition of and about the Const, county’s attempt comply are akin to user fees assessed PFCs Colo. airport X, facilities. As from users of collected art. 20. She was also asked about such, they not revenues. See are procedures establishing the Board used in Highway Authority, Nicholl v. Public opine The witness was not asked to ECAT. E-470 896 P.2d 859 qualified enterprise whether as an or ECAT the Board’s actions violated or com whether unpersuaded that We are likewise plied provision. with the constitutional agreement indemnify Ameri the Board’s Indeed, any legal by conclusions tendered liability all incurred in can Airlines during were the witness elicited cross- litigation multi-year obli this constitutes counsel, examination defendant’s authority. gation that exceeds the Board’s thus, any injected at error was also agreement with American Airlines Hence, behest. such error cannot serve as provides any provisions if are of its appeal. on unenforceable, grounds reversal See Motor ruled it shall be construed Castro, Division v. Vehicle challenged provision never been (Colo.App.1996). Thus, obligation, contained therein. ultimately proves to be a multi-

the extent it perceive no error or abuse of discre- We year obligation, is and would be severable tion in the trial court’s of defendant’s denial par under the terms of the deemed stricken injunction. preliminary motion for agreement. ties’ Accordingly, the order is affirmed.

V. ROY, JJ., concur. METZGER reject Lastly, we defendant’s contention allowing trial court erred in the bond testify expert counsel to as an about the plan financing terminal

Board’s the new

building. 702, expert

Pursuant to CRE testi scientific, technical,

mony is admissible specialized knowledge

other will assist understanding trier of fact in the evidence or VINCENT, Plaintiff-Appellant, Jodi determining a fact issue. Whether an expert’s testimony is will assist a fact-finder court, within the discretion of the whose PROJECT, CLEAN WATER ACTION ruling will absent an abuse disturbed Defendant-Appellee. Dyer, Harvey of discretion. See 731 P.2d No. 95CA1130. (Colo.App.1986). Jensen, Appeals, Colorado Court Specht

Defendant’s reliance (10th Cir.1988) Div. I. misplaced. In 853 F.2d 805 Specht, attorney an was asked to conclude 1997. hypo- a search conducted under a whether illegal. hypo- thetical set facts Rehearing May Denied posed thetical facts were identical case the court. The

facts of the before

Specht question under court disallowed the circumstances, expressly it stated

those but preclude testimony all

that it did not mean to

regarding legal issues. Smith, Lillie, L.L.C., Bruce G.

Smith Lillie, for Plaintiff- Englewood, Michael W. Appellant. Evans, L.L.C., Epstein, Clif-

Hall & Alan Swift, Denver, Defendant-Appel- ton P. lee.

Opinion by Judge METZGER. Plaintiff, Vincent, judg- appeals the Jodi wrongful dismissing her termination defendant, Water Action action Clean Project. We affirm. employed by as a

Plaintiff was defendant obligated was to meet a fund raiser and weekly quota. At the time of the incident here, plaintiff wished to attend a conference and, sponsored part by knowing money to required would be to raise she expenses, spent Satur- portion cover a of her pur- days canvassing neighborhoods for pose. 1, 1993, plaintiff ap- July

On about to credit proximately She needed $168. weekly her of that sum to meet $600 $33 Therefore, quota general raising. fund elected to “hold” the additional $135 conference, for the apply that toward fees Saturday thereby minimizing her workload. plan supervisor at announced this to her She contract, negligent misrepresenta- Friday when she breach of of business on the end $33; tion, defamation, supervisor estoppel, promissory her advised turned money” contrary to “holding outrageous sought damages her that conduct. She ensued, policy. $500,000. An over ultimately gave the $135 January In her disclosure certificate filed supervisor. 6, 1995, plaintiff listed as an exhibit “Claim days oc- the next several discussions Over 55327, Response, County and Court Case No. personnel, among supervisory the and curred Division, City County Small Claims employment was termi- ultimately plaintiffs Denver.” 9, paid was the July on 1993. She nated And, proposed findings in her of fact and her, owing but she salary that was due court, plain- of law with conclusions filed the paid for she believed to be an was not what action, “In tiff stated: her small claims the pay. week of vacation The reason accrued County Court indeed found that there was representative was given by a of defendant part not a deliberate act on the of Ms. Vin- standing employees resign good who in money....” cent to withhold the but, pay, since given are a week of vacation terminated, plaintiff she was not entitled was 3, 1995, March came on for On the ease pay. Plaintiff then filed an action to vacation trial, trial if and the court asked counsel had in the small claims division of the Denver any preliminary matters that needed pay, for vacation County seeking Court $362 addressed. There followed discussion be- 8-4-117, plus penalties pursuant to C.R.S. concerning ap- tween court and counsel (1986 3B). Repl.Vol. plicability estoppel or either collateral trial, magistrate, After a on October aas result of the 14, 1993, plain- in entered favor ceeding. However, pay. for the vacation tiff for $362 may If I [DEFENDANT’S COUNSEL]: magistrate found: proceed. in Plaintiffs exhibits is a Listed any going to award he Court is not [T] Transcript Proceedings in their Exhibits says that in penalty because the statute Honor, 2 and 3. Your Court any legal to do that there cannot be order Appear, Notice Claim and Summons to justification part employer. on the Transcript Proceedings of October enough testimony here to talk And there is we don’t believe that those are undermining policy, about at least some they if er matters before this Court. And policy may or though even be verbal admitted, properly are to be addressed and may Although be habit. it would have they approached affect how we would helpful something been there today. Complaint— way writing question to address the one or talking THE we are about COURT: So other, all, no it’s not in there at estoppel issue? some sort of collateral help find one has been able to the Court any documentation to that effect. That’s the [DEFENDANT’S COUNSEL]: issue, Honor. Plaintiff their [sic] Your pay, regard with to the vacation So proposed findings that there has indicated pay going to award that vacation Court respect determination with been some to the Plaintiff. the Court is not not be- Ms. Vincent’s termination. We do any penalty any or statuto- going to award estoppel binding. or lieve that it’s collateral salary fact that there is ry based on the But it were to be collateral enough regard to the evidence with second binding binding, we it would be believe enough point undermining of some at least matters, matter respect to all and this question away it from to raise the and take properly So— would be dismissed. the statute. Well, Thereafter, 19,1994, talking you THE are initi- COURT: question I judicata then. So ated the action here at issue defen- listing, I read over these issues as well. So in the Denver District Court when dant preliminarily wrongful discharge, why you don’t both address her claims for judicata precludes readjudication of why or both of those doctrines either one apply? any previous claims that were in a don’t brought. action or that could have been Your Hon- [PLAINTIFF’S COUNSEL]: People ofG.KH., in Interest or, position that the indeed it is our Small (Colo.App.1985). Because could finding hear and make a Claims Court did issue, brought all the have claims she lists on one and that is the issue as claim, deliberately complaint, for her whether Ms. Vincent withheld save defamation money. scope litigating of the Small Claims she is barred from them now. course, pay. claim was for vacation Of The Court dismissed the defamation claim jurisdiction. It that Court is of limited reasons, for other and entered itself, discharge was not a claim on the but dismissal in favor of defendant. simply pay for vacation that she claims she was entitled to. I. that she did not delib- The Court did find money they erately withhold the appeal, plaintiff On contends the trial directly put before that alleged. That was in dismissing court erred her action. She Court, issue, and that extent judicata contends that res is an affirmative case, issue is in issue this was collateral- and, defense to raise since defendant failed ly by that Court. It is not our determined any pleading, the doctrine in it should have position judicata that that res estopped invoking been from it. We dis issues before this Court. agree. My suggestion to this would be that Court judicata, a Under doctrine res we take the issue of the Small Claims precludes final on the merits finding necessary if and when it becomes parties re-litigating from issues that were or course, get to it. the Plaintiff would Of City been in that could have raised action. lay proper have to foundation ad- Denver v. Consolidated Ditches anyway. of that mission (Colo.1991). Co., 807 P.2d Well, THE assume the if and COURT: when is now. Because if I determine that judicata is an affirmative defense there, brought the action was Clean ordinarily which is considered to be waived if Project Water Action the Defendant and appropriately it is not raised. See C.R.C.P. responded to that action. 8(c); International, Inc. v. Univex Orix Yes, [DEFENDANT’S Your COUNSEL]: Alliance, Inc., (Colo.App. Credit P.2d Honor, it was. 1995),affd, 914 P.2d 1355 predicate THE So that all of the COURT: 8(e) provides C.R.C.P. requisites are met for a determination of pleading that no technical forms mo judicata, part. res this is the and when required. tions are v. Pearl you See Cox Invest So do want to all of those address Co., 168 Colo. 450 P.2d 60 issues? (1969)(allowing affirmative defense to be And, taking a after recess to allow counsel pled summary judgment). motion for Ad issue, conducting to research the research ditionally, by party itself, hearing argument on the issue of gives adequate notice of a defense on the judicata, res the court determined: judgment, basis of the effect of an earlier precluded by [P]laintiff is this is sufficient to avoid waiver. In re asserting any from of her claims in this Marriage Wright, (Colo.App. 841 P.2d 358 Court, only save for the claim defamation 1992); Court, see also Leonhart v. District adjudi- statutorily prohibited which is from (1958). 138 Colo. 329 in county cation court. Plaintiff herself by raised the issue of res and there- as evidenced her disclosure cer- tificate, estopped objecting plaintiff rely fore is from that defen- intended to on the effect judgment. Seeking dant failed to Plaintiff has raise issue. the small claims court placed estop contending the issue before the Court. Res defendant from that she (Sec regard, In this we find Restatement violating person- its terminated had been (1982) ond) g § 24 comment Judgments sought to introduce the plaintiff policies, nel transcript pleadings and instructive: claims court small in her this statements and bolstered split- in this The rule stated Section as of law. findings of fact and conclusions

posed applicable although the first ting a claim is facts, conclude that unique we these Under in a court which has no brought action is procedural argu- has waived her give for more jurisdiction to correctly determined trial court ment. The amount. When the designated from not seek to benefit could action in such a court plaintiff brings an simulta- the small claims judgment for maximum and recovers using it. prohibit from neously to award, can he is amount which the court Service, Messenger Express See Sneath maintaining an precluded from thereafter (Colo.App.1996). of his claim.... action for the balance voluntarily plaintiff, having II. him grant in a court which can his action the trial court Plaintiff also contends upon cannot insist main- limited applying the doctrine of erred taining another action on the claim. asserts facts of this case. She to the jurisdictions confronted We note that other full have obtained the she could not because the same with similar issues have reached action, county in court of relief the measure DeMatteo, v. 206 conclusion. See Orselet in bring this action district is entitled to 542, (1988)(barring 95 district Conn. 539 A.2d agree. court. We do not injuries in action for sustained automo- not judicata The defense of res does court’s bile based on small claims accident au initial forum lacked the apply when the repair of of automo- judgment awarding cost full measure of relief thority to award the (Del.Su bile); Billops, 482 A.2d 759 Mells v. litigation. in In re Mar sought the later precluded per.l984)(subsequent claim was Wright, supra. riage of motorcyclist brought action for where jurisdiction of the small claims the justice peace in of court and erty damage Court, County at the of the Denver division brought superior action in court for later civil here, entry was limited to of time of the though damages for personal injuries, even $3,500. of to Colo. Sess. justice of injuries were outside the personal 13-6-403(1) 1990, 100, § at ch. Laws Molovinsky v. jurisdiction); peace’s of the is a Arguing that the amount Inc., 531 Monterey Cooperative, 689 A.2d relief,” plaintiff contends that of “measure in small claims (D.C.App.l996)(prior action county in court is so jurisdictional bar in actions action civil court barred further that she could not have obtained small judicata); on doctrine of branch based appropriate relief in that forum. Christiansen, 393, 707 v. 109 Idaho Williams in entered (App.l985)(judgment P.2d 504 damage We do not believe judicata department was res to claims small remedy deprivation of a equates limitation magistrate’s of dis- brought action in division “full inability party of a to obtain the or an ability plaintiffs court based on trict contemplated by Restate of relief1’ measure forum); Hughes Bagley, A. Bagley v. choose 26(l)(c)(1982). (Second) Judgments (Iowa Inc., App.1990)(where 465 551 N.W.2d here, Rather, where, we conclude that both court actions small claims and district clearly jurisdiction over the county court has transaction, claims small arise out of same raised, claims made in and where the issues litigation in dis- precludes further incident, out of the same court arise monetary despite limit of small trict court i.e., employment relation termination Curtis, Egbert v. jurisdiction); claims court’s judicata apply and ship, principles of res judicata (Ky.App,1985)(re.s 123 pre 695 S.W.2d county court action judgment in the which compulsory counterclaims applied to the same issues that litigation later cludes previous small should have been brought. or could have been were 474 ment, matter, action); Realty, identity subject v. Lee claims

claims Chedid Street 9330, 13, Inc., City (Mass.App.Div. parties to the action. No. December Associates, 1995)(1995WL762915)(subsequent Denver v. Block 17S civil claims (Colo.1991). judicata 824 previously in small claims court are 814 P.2d decided, however, actually but also subject judicata; present bars issues to res in the issues that should have been raised presents arising claims from different ease McMillen, Pomeroy transactions); proceeding first but were not. v. Doherty v. 805 (1973). Waitkus, 344, 183 Colo. (Mo.App.l991)(holding 361 that small S.W.2d preclusion. is one of claim judicata doctrine judgments claims court have res interpretation legislative effect based on purpose judicata is of the res doctrine Polise, enactments); Omara v. 163 Misc.2d put litigation an end to between the same 989, (Sup.l995)(prior 625 N.Y.S.2d 403 small parties concerning controversy the same claims action barred claims civil court finality previous ensuring of a decision. arising dispute); Phillips in tenant/landlord Chames, Corp. I. C.F. & Steel Phillips, N.C.App. 265 S.E.2d (1980)(consent judgment arising from court Here, plaintiff split chose to her claims jurisdiction judicata of limited has res ef- defendant, bring rather than all re- Ball, fect); 182 W.Va. Sines general jurisdiction. claims in a court lated (1990)(doctrine S.E.2d 632 of res persuaded I am not that the record applicable judgments claims small but not supports holding that the defendant did applicable may to counterclaims which properly place fact the affirmative defense of presumptively pursuant filed to state stat- court. before the district ute). demonstrates, As the record Further, jurisdictions we also note that placed prior adjudication into these which have limited the res effect of ceedings purpose of offensive collateral judgments small claims do so based on ex- by listing of certain issues it as an press public policy pronouncements by such objected exhibit. to intro- The defendant its jurisdiction’s legislature. Springs See Cold duction into the record as a matter not Ball, Development Farm Inc. v. 163 Vt. court, erly stating before the admit- (1995); Persyn, 661 A.2d v. 89 Webb 866 ted, approach “it would affect how we (Tex.App.1993). S.W.2d today.” questioned The court then Accordingly, judgment of dismissal is applica- whether collateral was the affirmed. ble doctrine and asked briefs question judicata. of res Defendant did CRISWELL, J., concurs. permission seek to amend and include the judicata. affirmative defense of res *, J., specially TURSI concurs. Thus, contends, as the and the TURSI, Judge specially concurring. addresses, dispositive issue be- agree I that the of the trial court fore us is whether the district court had affirmed, should be but I reach that conclu- authority to raise and rule on the issue sua grounds sion on different and therefore write sponte. I would so hold. separately. addressing right In of the courts sua agree majority’s holding I sponte judicata, to I raise issue res may pre- in the small claims court persuasive holding find McClain clude a later action filed in court. district (9th Cir.1986): Apodaca, 793 F.2d judicata operates as a bar to second The doctrine of res ensures finali- decisions, litigated ty judicial action on the same claim as one in a conserves re- sources, prior proceeding judg- protects litigants when there is a final from multi- * 24-51-1105, (1995 Sitting by assignment Cum.Supp.). of the Chief Justice under C.R.S. Const, VI, 5(3), provisions of the Colo. art. Sec. It is consistent with pie law suits.... permit a court which principles

these to by the of an apprised

has been arising out of the same

earlier decision the action upon which before

contract based, examine the

court is prior judgment sponte. sua

effect of that

I within the inherent authori- conclude it is

ty raise the issue of of courts to therefore, sponte; this court need not

sua timely failure raise

address

such defense. so, fact, court not I

In had the trial done court, should in

would that this order hold resources, so judicial do. See

conserve supra. Super Apodaca, See also

McClain v. District,

Valu Stores

(Colo.l995)(trial per- court has discretion to pleadings proceedings

mit amendments remand).

subsequent to

Hence, agree I that the should

be affirmed. PADILLA, Plaintiff-Appellee,

Jose A. COMPANY, INC.,

D.E. FREY & Frey Group, Inc., and

D.E. Dale Defendants-Appellants. Frey,

E.

No. 96CA0616. Appeals,

Colorado Court

Div. II. 1997. 8,May

Rehearing Denied

Case Details

Case Name: Vincent v. Clean Water Action Project

Court Name: Colorado Court of Appeals

Date Published: Apr 3, 1997

Citation: 1997 WL 152206

Docket Number: 95CA1130

Court Abbreviation: Colo. Ct. App.