*1 1112 threatening a prohibits one from (1972). Statutory 222 terms need statute
L.Ed.2d
girl
“get
he would
her” and
however,
teenage
that
overly precise,
because
not be
she would “talk
sexually assault her unless
language must strike
bal
statutory
“the
sexually
dirty”
specific
provoc-
him or
to
do
potential conflicting con
two
ance between
acts,
talking
disrobing,
ative
such as
while
specific
give
enough
it
cerns: must be
is
such
with him.
statute worded
conduct, yet
warning
prohibited
fair
way
give
fair notice that one would
as
sufficiently general to
be
address
must
precluded
making
from
such
legally
problem under varied circumstances
Moreover, the criminal extortion
threats.
v.
during changing times.”
Parrish
prove,
an
requires
statute
state
1368;
People
Lamm,
at
see
758 P.2d
also
offense,
that the defendant
element
Allen,
(Colo.1983); People
P.2d 447
v.
657
person
intended to induce
threatened
(Colo.
Sckoondermark,
P.2d 411
v.
699
against against
to do
act
his will.
an
See
1985).
vagueness
in a
In order to succeed
(harassment
McBurney,
indefinite] placing to the accused of him on trial
tice offense, the nature of which and hence of
statute does define warning.... no gives
which
But
punishment imposed
where
WESTFIELD DEVELOPMENT COMPA-
pur-
act
knowingly
for an
done with
NY,
corporation,
A.
a California
Louis
doing
pro-
pose of
that which
statute
Conter,
Rodgers,
Peti-
James E.
hibits, the accused cannot be said to suf-
tioners,
warning
knowledge
fer from lack of
that the act which he does
a violation
v.
of law.
ASSOCIATES, a
RIFLE INVESTMENT
People McBurney,
v.
750 P.2d
partnership;
and Ed-
California limited
(Colo.1988) (quoting
v. United
Screws
Clabaugh, Respondents.
ward L.
91, 101-02,
States, 325
U.S.
S.Ct.
No. 88SC628.
(1945)).
Lee
adequate person A of reason intelligence
able could conclude that
1H3 alleged of an specific a 150 acre tract land for the sale of and located northeast of owned RIA time, Rifle, At the West- Colorado. same *3 pendens describing a of lis field filed notice property RIA and the nature of the 105(f). Clabaugh and lawsuit. C.R.C.P. Goluba, Jr., Glenwood Nicholas W. Westfield, a against RIA filed counterclaim Bronk, & Robert A. Springs, Friedemann Rodgers E. named James and Irvine, Cal., and & Merring, Robinson as defen- and Louis A. Conter additional Robinson, Wisbaum, Costa W. Michael counterclaim, 13(h). dants to the C.R.C.P. Cal., Mesa, petitioners. Westfield, Rodgers president of a was P.C., Brega F. Brega & Charles Winters was an corporation, and Conter California Gilliam, Denver, for re- Margaret C. and a in West- partner of Westfield and officer spondents. operations in The coun- field’s Colorado. alleged terclaim ERICKSON delivered Justice prosecution, malicious and Opinion of the Court. process. of abuse granted certiorari to determine following The district court found recording of a of a notice lis whether orga- limited partnership facts. RIA awas privileged statement pendens constitutes California, of and nized under the laws was judicial proceeding in the course of made land near owner of a 150 acre tract of and, absolutely privi- if is not such notice general part- Rifle. was the proper of dam- leged, what the measure ner, partner he a limited owned as sub- ages is. The district court awarded partners’ limited interest. about 80% of damages against petitioner West- stantial 1980, February Clabaugh, In on behalf of (Westfield) Company in Development field Land, RIA, Inc. Occidental about contacted Asso- respondent of Rifle favor Investment of property, a sale Occidental (RIA), general partner ciates and its Ed- Clabaugh also con- not at first interested. Clabaugh, L. based Westfield’s ward some in- expressed Westfield which tacted filing pendens. of a notice of a lis an purchasing the land. terest unpublished opinion, appeals court court, generally affirmed the district ex- 1980, July approached Cla- Occidental cept prejudgment for the rate of interest. baugh, purchase for the negotiated Assocs., Dev. Invest. Co. 23, 1980, Rifle Cla- property. July Rifle On 1988). 27, (Colo.App. No. 87CA0131 Oct. a draft of a sales baugh sent Occidental Then, July land. that under the circumstanc- contract for the We conclude negotiations of a es here notice of between as result absolutely privileged, Conter, is not but that the Clabaugh Clabaugh received a supported judgment court’s is not pur- contract for the proposed letter and by findings of sufficient fact conclu- property drafted chase of the same sions of We also find that the court law. proposed con- for Westfield. The appeals correctly decided the issue of signed was not it contained the tract prejudgment Accordingly, interest. we af- following clause: firm the of the WHEREOF, the Purchas- IN WITNESS part part and reverse and remand has executed this contract er [Westfield] with directions. the_ Upon day July, as of acceptance this Con- Seller’s [RIA’s] I. Seller’s execution on tract noted Addendum, Agree- page this brought On October binding against constitute Clabaugh, seeking RIA and shall suit
H15 August between hereto in accordance dental on purchase 1980 for the with the terms hereof. $1,500,000. Realizing and RIA did not intend to purchase price proposed The stated in the sell Westfield, and after $1,200,000. Clabaugh contract was did not discovering the existence of the contract sign proposal. using He redrafted Occidental, between RIA and Rodgers au- language increasing purchase the same attorneys thorized for Westfield to file $1,650,000, suit price sign but did not seeking specific Colorado Clabaugh’s proposal contract. also con- the claimed contract tained the clause set out between above Westfield and received Westfield RIA.1 day, on the same Suit was filed on October and a notice of lis *4 was recorded in County. Garfield Although recognized he Clabaugh that changed purchase price, presi- had After suit and pendens notice of lis was Westfield, Rodgers signed pro- dent of filed, Occidental backed out of its contract posal evening July on the gave it property, for sale of the apparently taking Howell, to Mike Westfield’s in-house coun- position that the title property to the sel, Clabaugh for transmission to the next had become unmerchantable. RIA re- day. Clabaugh Conter talked to on the $25,000 turned deposit to Occidental morning July proposed 29 about some and treated the contract as at an end. changes agreement in the Clabaugh At a bifurcated April bench trial in indicated that he would think them over. the district court first held that there was However, afternoon, about 2:00 o’clockthat no contract between Westfield and RIA for Clabaugh’s office received a letter from the sale of the because the intent purporting Occidental accept Clabaugh’s to was for RIA sign to them, offer to sell the property along proposal before it could binding become a $25,000 a check deposit. with for as a Af- agreement, and neither RIA Clabaugh nor consulting ter with his attorney, Colorado signed petitioners appeal- it. The have not Clabaugh sent a Western telegram Union ruling. ed that The counterclaim was tried to Westfield which said: “Rifle Investment the court October and November hereby Associates revokes and rescinds 1986. On December any it may you offer have made to to sell court awarded in favor of RIA you Rifle, our Colorado.” against $1,894,659.32 ac- telephoned Howell Clabaugh on the af- $747,860 damages, including tual prejudg- July ternoon of 1980 and said he was interest, $150,000 exemplary bringing agreement. over the Clabaugh damages. The court also awarded Cla- told him not to bother since there had been $150,000 baugh damages actual for emo- change in circumstances and he could not findings support- tional distress. Factual sign p.m. it. At 5:15 that afternoon West- ing recovery damages were not set ern telegram Union delivered the from Cla- required specificity forth with the in the baugh by telephone. to Westfield The fol- district court’s decision. lowing day, July Clabaugh’s office re- ceived a letter from stating interest, Except prejudgment for the transmitting copy it was of the contract affirmed, appeals stating: court of your [Clabaugh’s] accordance with “[i]n There was evidence that the three acceptance written 1980 of our plaintiffs contract, interfered with RIA’s offer....” [Westfield’s] filing and the of the lis was unjustified. After haggling, damages, some further a contract As to the issue of signed by was executed and RIA supported and Occi- while the evidence could have original complaint sought Clabaugh. 1. Westfield’s RIA and Westfield withdrew its re- injunction barring property, quests injunctive damages the sale of the relief and before |500,000 damages specific in the amount of from both enforcement demand came to trial. contrary sup- damages. record the cause of an award of finding, the does be. counterclaim, RIA their al- conclusion that the port the trial court’s leged of the notice of to RIA economic losses any actionable three under and that their efforts had been incurred con- theories: intentional interference with mitigate proper. damages were tract, prosecution, malicious and abuse Co., 87CA0131,slip op. No. Dev. process. quali- conclude there is a prejudg- court awarded at 2. file a privilege fied notice of lis per year rate of ment interest at the 9% to a claim based on pursuant compounded annually to section is no interference with but there 13-21-101(1), (1987). The court 6A C.R.S. specific against mali- privilege a claim for that section 13-21- concluded prosecution.2 cious inapplicable governed since injuries, personal lost A. Co., Dev. No. profits. Westfield 87CA0131,slip RIA op. at 3. could recover Intentional with Contract Interference interest, only at the rate prejudgment there is to file a Whether annually compounded under section of 8% *5 pendens lis constitutes a defense which (1989 5-12-102(l)(b), Supp.). 2 C.R.S. action based Co., 87CA0131,slip op. No. Dev. question impres with contract is a of first The remanded for at 3. court of sion in the state Colorado. Courts outside prejudgment interest. of the recalculation are the issue. courts hold split on Some respondents not petitioned The have Id. is filing pendens that the of a notice of lis judgment for review the the court absolutely privileged that an action so appeals. will not based on interference with contract granted four certiorari consider lie. II v. McDonald E.g., Woodcourt Ltd. (1) petitioners: raised wheth- issues Co., 245, 248, Cal.Rptr. Cal.App.3d 119 173 recording pendens a of a lis con- er notice 836, (1981); Zacco, 402 838 Procacci v. in the privileged a statement made stitutes 425, (Fla.Dist.Ct.App.1981); So.2d 426-27 (2) judicial proceeding; course of whether 429, 420, Brown, N.J.Super. Lone 199 v. in an damages measure action for 1192, (App.Div.1985); 1197 489 A.2d Grif tortious interference with contract for Rowden, 692, 702 v. S.W.2d 695 fin should the sale real 1986, n.r.e.). (Tex.App. Other writ ref 'd —Dallas price difference between the contract only state have held there is courts of the as of the fair market value lis qualified privilege to file a notice of (3) wrong; date of the whether the Short, Ariz. pendens. McReynolds 115 v. partner partnership 166, 170-71, 389, (Ct.App. limited general of a P.2d 393-94 564 1977); Carrier, Conn.App. 12 Epstein v. may be awarded emotional (1987); 691, 696-98, 1221, A.2d 1224-25 533 in an action for interference with distress Indus., Rose, Inc. v. 399 N.W.2d Guerdon relations; 4) pre- contractual whether Homes, (Minn.App.1987); Vintage properly awarded interest Levin, Pa.Super. Inc. v. pursuant to section 5-12-102. (1989); A.2d Toltec Watershed Johnston, Improvement Dist. II. (Wyo.1986); also Restate 814-15 see (1979). of Torts § filing The first claim that 105(f) pendens lis under leading extending notice of C.R.C.P. The case an absolute filing of a lis absolutely privileged, may privilege to the of notice is thus express no fore do not reach issue and 2. The have not briefed the issue pendens filing opinion of a whether the of the notice lis thereon. process. ever constitute abuse of We there-
1H7
pendens
Raboff,
Denver,
City
County
Albertson v.
Cal.2d
&
(Colo.1985).
In Memorial Inc. v. weigh the in factors contained section 767 Olympian Management Sales & Consul (Second) of the Restatement of Torts: tants, Inc., (Colo.1984), 690 P.2d approval we cited with the definition of the determining whether an actor’s con- tort of intentional interference with con intentionally interfering duct in with a tract in section 766 of the prospective Restatement contract or a contractual re- not, of Torts. See also Trimble improper v. lation of another is or con- following existing pro- contract or enter into a given to the
sideration spective contractual anoth- factors: relation with improperly er does interfere with the conduct, (a) the nature of actor’s if the other’s relation actor believes (b) motive, the actor’s impaired his otherwise or interest be (c) other with the interests destroyed by the of the con- interferes, which the actor’s conduct or tract transaction. (d) sought the interests to be advanced (1) qualified applies The when actor, by the has, has, honestly he interferer or believes (e) protecting in the social interests legally protected interest; (2) the inter- of action of the actor and the freedom good ferer asserts threatens to faith or other, interests of the the contractual it; (3) assert threat is assertion or (f) or proximity remoteness proper means. v. McReynolds See actor’s interference and conduct Short, Ariz. parties. (g) the relations between (Ct.App.1977). Denver, 697 City County Trimble & the district in this Because court if P.2d at Even the interference is case did not interfer consider whether the therefore, intentional, liability does at- improper, ence was or whether there was a tach the court concludes unless qualified interfere, privilege to the court of Id.; improper. actor’s is also Me- conduct appeals judgment affirming the district Gardens, v. Olympian morial Inc. Sales pro court must decision be reversed. Inc., Consultants, Management & ceeding should be remanded to the district Viewing findings P.2d at of fact findings court for conclu new fact and by~ of law made conclusions sions of If the district court con law. light most favorable 'to"Gla- cludes that made such cannot be baugh RIA, weigh the court did not exists, on the record that now a new trial factors contained section 767 of Re- granted. remaining should Since the finding made no statement and remand, issues will arise on we elect to peti- by Westfield the other judicial address them now the interest of improper. tioners was economy. *7 addition, of where the means al leged the a filing interference is of" notice B. pendens, litigant lis a of we believe that asserting fide claim has a a bona Malicious Prosecution Thus, to once it has been deter interfere. alleged The that counterclaim also that the interference was intention mined filing pendens the of notice of lis consti al, was the cause of the termination prosecution tuted the torts of malicious damage, caused the interfer process.3 Although abuse of may escape liability by establishing, er still defense, set elements tort in as an affirmative that he or she court out the of each Ep law, claim. not asserting a bona fide See its conclusions of court did Carrier, 691, 696, Conn.App. stein v. that not find those elements did or did 1221, A.2d 773 of Section exist. The address did not the Restatement of Torts states:’ have held previously this issue below. We may filing pendens that the of notice of lis who, by asserting good in faith One prosecution. actionable malicious legally own protected interest of his Deidesheimer, Johnston v. 76 Colo. threatening good protect in faith to (1925); means, intention P. see also by appropriate interest ally person perform third to Albertson causes a Cal.2d Raboff 3. See note 2 above.
H19 $2,500,000. (1956) (no privilege There was evidence against prosecution record that proper- action for malicious for the Westfield and RIA pendens). comparable. lis ties were notice of however, note, The district that the elements of court found that as result complaint April 2, of its dismissal the torts interference with longer prosecution lis was no and malicious are not Nevertheless, Therefore, effect.5 despite efforts damages the same. to caused the property, buy sell and offers by the to that constituting may conduct each tort rejected RIA, property were re- not be If the identical. district court on May mained unsold At until prosecu- remand concludes that malicious time, Corporation Exxon announced that it specif- tion has it proved, been should make closing shale project its oil in the area ic damages.4 to plummeted, and real making estate values property RIA’s unmarketable. The district III. court found that RIA’s sell efforts to property were reasonable. The McPherson pertains proper The second issue mortgage was foreclosed March 1985. measure in an action for inten- tional interference with contract. The dis- In computing damages, the district court trict purchased court found that RIA profit calculated the RIA lost when the Rifle from Milton Warren Occidental fell through first $750,000. February McPherson in 1980 for $7,500 subtracting RIA received when it purchase price $165,000 consisted half sold one and a acre to a third tract promissory cash and a note to McPherson party price from purchase the McPherson $585,000 by mortgage secured on the ($750,000), $742,500. for a subtotal This property. buy Occidental contracted amount was then subtracted from the $1,500,000, RIA for from $1,500,000 pay, Occidental contracted to backed out when Westfield filed the notice $757,500in profit. a total of lost The court pendens. Clabaugh of lis negotiated with then determined RIA lost the use of Union Company proper- Oil for sale money it would have as a received ty, but Union indicated that needed profit on the of the sale land and property right away lis and the computed value loss should be 9% completion was a compounded $747,- barrier the sale. annually for a total of subsequently purchased property Union 860.6 The district court also found that nearby $389,299.32 owned Westfield more than additional RIA suffered an thirty prosecution days We also note that a notice of malicious terminate claim usually out 105(f) that arises of the main action April provided later. C.R.C.P. brought as *8 be a counterclaim since the as-provided notice of filed "[a] yet main action has terminated in favor of by thirty days in effect shall remain for law Ginger the counterclaimant. See Donovan v. bread entry judgment from the of in time of final the Inc., 627, House, (D.Colo. F.Supp. 536 632 105(f) substantially trial court.” Rule was 1982). Although it is true that the district court 1, amended the absence effective 1981. In found in of RIA and favor on the 54(b) April of a C.R.C.P. 1981 certification 1981, April main claim we in have located no judgment on claim would not be a Westfield’s 54(b) C.R.C.P. certification in the record. With However, judgment. final note 4 See above. certification, against judgment out such argued since no one has that the notice of lis perform specific Westfield claim on their pendens continued in effect until December ance was not final until the were counterclaims 1986, decided, we when the counterclaims were adjudicated. appear peti It does not that the purposes opinion assume for of this that the however, and, tioners advanced any defense in May notice terminated event, appeal by no Westfield taken on specific performance its claim and the prejudg- 6. The correctness of this calculation against on the main action is now VI final. ment interest is examined in Part below. April 5. The all assume that the court's judgment on 1981 Westfield’s caused the claim
1120 (c)emotional damages7 for a total of distress actual harm consequential $1,894,659.32 damages. reputation, in actual they reasonably if are expected from the interfer- be to result petitioners other ence. the district court used contend that There evidence the record was sufficient damages. They claim wrong measure of for the court to have concluded that district damage by suffered RIA as' the lis of the notice of con the termination the sales result of rendered the unmerchantable and contract the difference between the tract is destroyed might there any market have price prop fair market value of the and the it, concept rendering of mar- been wrongful erty either the date meaningless. ket value See Askari v. R & latest, conduct, or, at the when the notice 1101, Co., Cal.App.3d 1111, R Land 179 225 May pendens was removed in of lis Cal.Rptr. 285, 292 appropriate measure While this action, in a damages breach contract supports The record also inference with is a contract only very existed limited num- there damages may there The measure of tort. buyers ber of that would be able to use the damages depart from contractual fore economically in the most efficient necessary party to make the innocent when form, profitable such as Occidental and Enters., Hein v. whole. See Ltd. San sold such a tract land Union. Westfield Investors, P.2d Real Estate 720 Francisco needs, satisfying to Union Union’s (Colo.App.1985); v. see also Ross thereby potential the number of decreased Holton, (Mo.App.1982) 640 S.W.2d buyers. the notice of lis After (damages for intentional interference with in 1981 the district court found lifted rules); measured contract not that RIA exercised reasonable efforts to Schmitt, Johnson N.W.2d mitigate trying damages by its to sell the (S.D.1981) (same). property. May the bottom fell out unique of the market. Under these circum- City County In Trimble v. stances, say that cannot we Denver, (Colo.1985), measuring damages erred Gardens, Olympian Memorial Inc. v. caused an intentional interference Consultants, Inc., Management Sales & (Colo.1984), profit referred loss of rather than difference we damages approval with measure of price largely between 774A(l) set out in section of the Restate meaningless concept market value. 774A(1) of Torts. Section provides: IV. (1) inter- One who liable another for prospective
ference with a contract or argue that emotional relation is contractual liable for damages may distress not be awarded to a claim for intentional inter- (a) loss pecuniary of the benefits ference contact for two reasons. prospective or the rela- First, the contract court did not award Cla- tion; baugh damages, and any other emotional damages may not be
(b) distress awarded consequential losses for which *9 cause; legal some other form of dam- interference is and absence of 41,370.83 (reasonable attorney $ 7. these fees in- The court calculated additional conse- quential damages having as follows: curred in moved) re- $165,000.00 (down payment upon lost fore- 9,000.00 (property closure) taxes and other costs re- 168,328.49 note) land) (interest ownership paid of lated to _ McPherson 5,600.00 (expenses attempting incurred in $389,299.32 1982) to sell in 1981
H21 Second, Clabaugh, ages. general Westfield. The district court awarded damages to partner may RIA for partnership, of a limited these fees. general Because any damages all was the sole be at since he awarded partner majority partner limited it can party allegedly was not a to the contract proved be said that he that he suffered interfered with. pecuniary damages addition to emotional general rule, As a emotional dis distress. damages may ac tress be recovered Second, previously we have held that for con tion intentional interference with damages for emotional distress in Colorado tract, City County Trimble v. & Den of may be awarded a breach of contract ver, 730, at only they “if are 697 but action when the breach is willful wan- reasonably expected to result from City Denver, ton. County Trimble v. & of (Second) the interference.” Restatement In 697 P.2d said: Trimble we 774A(l)(c) (1979). court, of In Torts this original As appeals stated court of petitioners have not contended that the Colorado, of ‘in cases where a breach allegedly emotional distress suffered contract has occurred and the acts at “reasonably ex was not to be tending accompanied by such are breach pected to result from the interference.” willful, insulting or wanton conduct they Nor have claimed the evidence breach, guilty the one substantial support was insufficient damages may be recovered mental for We court’s award emotional distress. suffering Jackson, only_” Hall v. purpose therefore assume for 225, 151, Colo.App. 228, 24 134 P. 152 opinion that both these conditions have (1913). Compre Accord Rederscheid v. met.
been
Inc.,
care,
(Colo.App.1983);
Farmers
Inc.
658
(Colo.App.1982).
P.2d 1370
A.
added).
(emphasis
al distress be awarded 803, 64 P.2d Colo. damages proved, when there are other (where breach of contract was willful and damages. not be the sole element allowing wanton it was within rule recov Thus, since the district court awarded Cla- alone); ery for Fitzsim emotional distress baugh damages only, for emotional distress Ass’n, 91 Olinger Mortuary mons v. Colo. any pecuniary damages, and not the award 535, (1932)(same). It In Pennsylva cannot stand. Tose First permit would be anomalous to the award of Bank, N.A., (3d nia 648 F.2d for the emotional distress alone Cir.1981), denied, 893, 102 cert. 454 U.S. breach of a willful and wanton (1982), S.Ct. 70 L.Ed.2d the court improper deny them for intentional and Pennsylvania read held that would Restate legal justification acts committed without conjunction 47 in Torts § that cause breach the contract. 774A(1) deny damages section Jackson, Colo.App.225, Hall v. emotional distress itself in an action for (1913), P. the court of un intentional interference with contract stated: plaintiff proved damages for less the tort, pure contrac- cases where no pecuniary reputa harm or actual harm to tual exist and the acts com- relations distinguishable in two tion. find Tose plained of are attended with willful and respects. defendant, part wanton conduct First, Clabaugh testified without contra- damages may be recovered substantial personally paid suffering diction that he most of the anguish only, mental *10 defending in the though physical injury pecuniary fees incurred no or by by plaintiff. specific brought action loss is suffered 1122 individuals; partner therefore, general thus a could conclude, party that a is not
We seeking interfering with a damages for emotion- not held liable for barred from be an for only by partnership in action intentional entered into the al distress contact contract). Moo- interference with contract. See also a the party since he was Co., 291 Or. 634 ney v. Johnson Cattle fact, Clabaugh named as a (1981) (holding that P.2d emotional 1333 original proceeding for defendant the may sole damages distress be the element specific of what al- enforcement proper intentional interfer- damage of in a leged a the of land was contract for sale action). ence with contract specific RIA. these owned Under circumstances, we conclude that narrow B. Clabaugh a party was the Occidental bringing of purpose contract for Next, petitioners contend that con- action for intentional interference with Clabaugh may damages not receive tract. only party a emotional distress because damages. may the contract recover See
Restatement of Torts 766 com V. p (1979). agree that under ordi Finally, claim nary only parties to a con circumstances appeals awarding pre court of erred may tact recover for intentional pursuant 5- judgment interest to section However, interference with contract. 12-102(l)(b), (1989 2 Supp.), C.R.S. on lost petitioner’s premise with the disagree we profits money since no or was Clabaugh party was not a to the Occi withheld. Mesa Sand & Gravel Co. dental contract. Inc., (Colo. Landfill, 365-66 general partner in a 1989), 5-12-102(l)(b) held is we that section foreign partnership limited formed under given a broad liberal construction Looking the laws of California. to Califor legislative purpose order to effectuate the law, appropriate nia we under which find compensating parties of loss of circumstances,8 partnership these limited a money they are enti to which generally separate legal entity, is appeals The court not err in tled. did is an association of individuals. Don determining that prejudgment interest States, roy, Ltd. v. United F.2d pecuniary damages caused (9th Cir.1962); Logan 206-07 Bedolla v. & appropriate interference with Frazer, Cal.App.3d Cal. 5-12-102(l)(b). under section association, Rptr. 59, Within management gen lies with control partner. Cal.Rptr. eral Id. at VI. Thus, if a limited partner California Accordingly, reverse the we individuals, ship is only an association of appeals insofar it affirmed separate cannot be considered a imposing decision the district court
party to a entered liability petition- on Westfield and other partnership. into the name of the limited ers, return ease to court of this Trotting See Battista v. Lebanon appeals Ass’n, (6th Cir.1976)(un with directions. We direct that 538 F.2d law, proceeding to partnership sepa court of remand this der Ohio legal entity, aggregation rate but is an district court for further 7-62-901, (1986) organization 8. See section 3A C.R.S. which and internal affairs and the lia- provides: foreign bility partners, of its limited and a partnership. regis- governing foreign partnership Law Subject limited limited not be denied state, any to the constitution of between tration reason difference jurisdiction foreign laws under which laws those and the laws this state. organized govern partnership limited its *11 fact and conclusions of law in accordance Occidental. July Clabaugh On sent opinion. with this If the district court can- a draft Wasmann, contract to Kenneth Ex- required not make findings on the ex- ecutive Vice-President of Occidental. On record, isting grant- July 28, new trial should be Clabaugh received draft contract ed. We affirm the court of prepared by Thorvilson, James 0. an attor- prejudgment to the issue of ney inter- for Westfield. The draft contract was est. unsigned and following provi- contained the
sion: IN WHEREOF, WITNESS the Pur- VOLLACK, J., dissents, and chaser has executed this con- KIRSHBAUM, [Westfield] J., joins in the dissent. _ tract as of day July, dissenting: Justice VOLLACK Upon Seller's acceptance of this [RIA’s] Contract as noted Seller’s exe- [RIA’s] I respectfully majority’s dissent from the cution on this page Addendum, holding remanding the case to the district agreement shall binding constitute a court because it “did weigh the factors between the hereto in contained section 767 of the Restatement accordance with the terms hereof. finding made no that the interference July or the other On Clabaugh unsigned returned an improper.” Maj. op. my opin- at 1118. In modified version of the contract to West- ion the district field. The court’s order indicates that modified version of the contract provision it considered contained a specifying Westfield’s interference to be improper. agreement disagree I also would majori- binding with the become a ty’s upon holding that the RIA’s execution of district court failed agreement. At the determine trial on quali- whether Westfield had a Westfield’s complaint in 1981 the fied district court found Maj. op. to interfere. that it was the parties, intent of both 1118. The district court’s demon- expressed in the modified contract returned strate that Westfield honestly did not be- to Westfield Clabaugh, that there would interest, lieve it legally protected had a no contract between RIA and Westfield did not assert good its claimed interest in until signed by the contract was par- both by proper faith means.
ties. 28, 1980, July On Rodgers, James I. Westfield,1 President of signed the mod- Clabaugh Edward general is the sole gave ified version the contract it to partner of, partner of, and a limited a limit- a Westfield delivery to Cla- ed partnership known as Rifle Investment baugh. morning July On the (RIA). Associates RIA owned a tract of Conter,2 Westfield, Louis an officer of land approximately 149 acres which was called Clabaugh suggest changes several located city northeast of the of Rifle. Dur- agreement Clabaugh the draft of the had ing Clabaugh attempted on behalf of sent to Clabaugh Westfield. told Conter RIA to sell the land to either Westfield agree suggestions, he could not to Conter’s (Westfield) Development Company or Occi- and that he would have to think them over. Incorporated (Occidental). dental Land Clabaugh Conter did not tell Rodgers exchanging signed had the modified version of the draft contract forms with agreement night both Westfield before. that, 1. The record tiating reflects at the time fairly these real estate contracts had been a place, Rodgers twenty events took years had over part job continuous of his from 1946 until the experience in the real estate business. date of this action. testified that all of dealings concerning his contacts and Westfield's
2. The record reflects that Conter became a li- buy desire to were with Conter. nego- censed real estate broker in and that *12 July inadequate support re- sions of law are to its Later on is liable deposit that Westfield for inten- ceived from Occidental a check $25,000 signed Kenneth tional interference with contractual rela- and a letter accept Maj. op. my opinion at In the purporting July tions. 1118. Wasmann to RIA’s findings district court’s of fact and conclu- response, to sell land. offer to support to re- sions of law were sufficient a telegram sent a judgment against voking any have made for sale intentional offer July afternoon interference with contractual relations. property. On the Unsworth, 29, 1980, majority The a a litigant holds that has Charles qualified Westfield, Clabaugh. Clabaugh privilege file notice of a lis called to (1) has, pendens the contents of the when the interferer informed Unsworth of has, honestly legally protect- a telegram Clabaugh had sent to Westfield believes he interest; (2) good ed faith day. earlier said that West- the interferer that Unsworth it; (3) buy property, field like to he asserts or threatens to assert and would but by proper did that was a assertion or threat is means. not contend there Maj. op. re- at 1118. I would hold that the between RIA Westfield. Westfield qualified privilege a lis Clabaugh’s telegram p.m. at 5:15 on to file notice of ceived pendens apply did not to July 29, Westfield’s 1980. against pendens a notice of lis RIA. August On RIA Occidental recording case Westfield’s a for the entered into contract sale of pendens impossible the lis made it notice of property. Rodgers then made decision timely for RIA its perform side of its present Rodgers action. commence Occidental, contract with because RIA fully timely and Conter failed dis- could not deliver merchantable title to the attorneys close to Westfield’s that property to Thus trial Occidental. agreement binding would not be without find court did not that Occidental “breach- the signatures parties. Rodgers of both RIA, ed” properly its contract with fully timely and Conter also failed to that its con- found Occidental “terminated” attorneys disclose to Westfield’s the com- RIA. tract with RIA counterclaimed munications between Westfield and Cla- against Westfield for interfer- baugh part 29. As the action ence with contractual relations. Interfer- Westfield recorded a lis the tort ence which constitutes of intention- clerk County, and recorder of Garfield Col- al interference with contract must both orado. RIA received summons improper. intentional and See Restatement complaint in this action October (Second) of Torts 766A § found that The district court Conter ability had the to have the lawsuit dis- The district court found that Westfield’s lis missed and the released. conduct The court was intentional. district
cited Restatement of Torts j proposition comment for the that “[t]he II. requirement for intent satisfied if the majority party only The holds that has purpose actor not act does for the of inter- qualified privilege to interfere with an fering with contract but knows that the existing initiating contract means of liti- substantially cer- certain or gation filing pleadings and notice of a tain to occur as a result of his action.” pendens. Maj. op. 1117. The majori- lis at The found Westfield’s ty does apply reasons that conduct satisfied this definition of intent to an intentional interference with by recording because Westfield “knew maj. apply op. at but does rendering where title un- [it was] litigant merchantable, Maj. op. prevent asserts bona fide claim. which would majority The holds that the dis- of the contract between trict court’s fact and RIA conclu- and [Occidental].”
H25 Rodgers The holds that court found that majority failed disclose inadequate it does attorneys agree- court’s order is because to Westfield’s weigh the factors contained in binding section ment could become a (Second) Torts,3 signatures 767 of the Restatement with the parties. both and does not conclude on the basis of those Rodgers district court also found that *13 factors that Westfield’s interference was attorneys failed to disclose to Westfield’s improper. my opinion July the 29 conversations between Cla- clearly court’s order indicates that the dis- baugh agents. and Westfield’s In other trict court considered Westfield’s conduct words, district Rodg- the court found that improper. to The of the effect attorneys ers concealed from his material majority opinion require will be to dis- the regarding information the existence of a employ language trict court the sec- to contract between RIA. Westfield and reaching tion 767 the of the Restatement The court district also found that Confer already same I result it has announced. failed to to attorneys disclose Westfield’s affirm believe we should the district court dual-signature the requirement in the order. forms, agreement as well Westfield’s The findings district court’s of fact and to on July communications support adequate conclusions of law are to although The court district found that Con- its Westfield’s interference that authority fer had the the to have lawsuit improper, and therefore is Westfield released, pendens dismissed the lis and he liable for interference con- with “ratified the maintenance lawsuit tractual The district find- relations. court’s pendens actively participated and lis ings of fact noted that West- RIA’s and pendens.” maintenance of the lis required field’s contract forms both court all district found that of West- sign agreement be- before it could field’s actions “were wanton and reck- Thus, binding Rodgers come a contract. disregard less rights RIA’s feel- signing Clabaugh’s knew that his act ings,” exemplary damages and awarded agreement modified of the version did not against Westfield. The district court also create a between Westfield and only ground found that identified “[t]he although RIA. The also court noted that fil- Occidental termination was the Clabaugh communicated RIA’s revocation Westfield,” ing pendens by of this lis of its agents offer to several Westfield on that existence of the lis “[t]he July agents none of those that asserted causation the termination of the RIA and Westfield had a contract. Charles attorney Occidental.” RIA’s Unsworth, who Westfield notified that action had Westfield its spoke merely said caused its contract Occidental terminate that buy Westfield still would like to RIA, demanded of the the dismissal property. suit, it and notified Westfield that would The district court also found that responsible hold re- decision to commence this action and file sulting from its behavior. the lis by Rodgers, was made who knew that no contract existed RIA The district court’s of law between conclusions Furthermore, and Westfield. that were indicate Westfield’s actions notes, (d) majority sought 3. As the the Restatement identi- the interests to be advanced actor, following fies the factors as relevant to a deter- (e) protecting social interests in mination of an actor’s whether interference of action and the con- freedom tractual interests of the actor improper: other, (a) conduct, nature actor’s (f) proximity of the ac- remoteness motive, (b) the actor's to the tor’s conduct interference (c) the interests of the other with which the (g) parties. the relations between the interferes, actor’s conduct (Second) Restatement Torts court, relying op. disagree at 1118. I same Maj. The district improper. that which lead me to conclude Torts section reasons Restatement in- interference is district court issued sufficient j, stated that comment is liable for inten- if to the actor’s conclude incidental tentional rela- to him to tional with contractual independent purpose, but known findings of necessary of his action. The district court’s fact consequence tions. be a sufficiently support conclusions law then concluded The district principals by recording the knew that the conclusion Westfield’s “Westfield ... honestly they have had a rendering title unmer- could not believed was] [it interest, chantable, per- legally protected did not assert prevent would which faith, good did not RIA and their interest do of the contract between formance *14 by proper McReynolds so means. [Occidental].” Short, Ariz. order, which con- The district court’s (Ct.App.1977). nine sixty-four findings of fact and tained law, sup- a whole taken as conclusions I affirm the un- would finding that Westfield ports the court’s opinion. published with con- for intentional interference liable say I am authorized to that Justice district court’s or- tractual relations. The joins in KIRSHBAUM this dissent. sufficient of fact der contains support of law the conclu- conclusions intentionally and im- that Westfield
sion interfered the contract be-
properly RIA and Occidental.
tween
III. majority also that because contends
the district court did not consider whether qualified privilege had a to inter-
fere, must for new the case be remanded
findings of fact of law. and conclusions