Colorado Community Bank v. Hoffman

2013 COA 146, 338 P.3d 390, 2013 WL 5947234, 2013 Colo. App. LEXIS 1737
CourtColorado Court of Appeals
DecidedNovember 7, 2013
DocketCourt of Appeals No. 12CA1713
StatusPublished
Cited by176 cases

This text of 2013 COA 146 (Colorado Community Bank v. Hoffman) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colorado Community Bank v. Hoffman, 2013 COA 146, 338 P.3d 390, 2013 WL 5947234, 2013 Colo. App. LEXIS 1737 (Colo. Ct. App. 2013).

Opinion

Opinion by

JUDGE GABRIEL

¶1 In this action arising from the judicial dissolution of certain companies in the course of a receivership proceeding, defendants, Walter E. "Gene" Hoffman and Oxford Resource & Management, Inc., attempt to appeal from orders certified as final under C.R.C.P. 54(b) and appeal from orders granting summary judgment to intervenors, Vietor Harshberger, Kenneth Adelberg, and Robert Williams, on defendants' counterclaims for abuse of process and civil conspiracy. We conclude that we lack jurisdiction over the orders certified as final under C.R.C.P. 54(b) because defendants did not appeal those orders within forty-five days of the certification. We further conclude that the district court did not err in granting summary judgment to the intervenors on defendants' counterclaims. Accordingly, we dismiss the appeal in part and affirm the judgment in all other respects.

I. Background

{2 Hoffman was the president and chief executive officer of Oxford. Oxford and inter-venors Adelberg and Williams owned equity membership interests in KDGC Holdings, LLC (Holdings). Holdings, in turn, was the parent of three operating subsidiaries (collectively, the subsidiaries), which served as the ownership structure for three golf courses. Hoffman served as general manager of all of the entities owned by Holdings.

138 Plaintiff, Colorado Community Bank (the Bank), made several loans to finance Holdings' acquisitions of two of the golf courses. As pertinent here, Hoffman and one of the subsidiaries jointly executed a promissory note and related loan documents in favor of the Bank in connection with one of the loans. Hoffman and the subsidiary, however, subsequently defaulted on this loan.

T4 In addition, allegations surfaced that Hoffman, personally and through Oxford, among other entities, had mismanaged Holdings and its related entities, had engaged in self-dealing, and had breached his fiduciary duties by, among other things, diverting substantial assets of these companies to his personal use.

15 As a result of the foregoing, the Bank sued Hoffman, Oxford, and various other entities for breach of the above-described loan documents and sought the appointment of a receiver. The intervenors joined in the request for a receiver and asserted various additional claims against Hoffman, Oxford, and several of their related entities The district court subsequently granted the request for the appointment of a receiver.

T6 Thereafter, Hoffman and, ultimately, Oxford filed counterclaims against, among others, the intervenors for, as pertinent here, abuse of process and civil conspiracy. In their counterclaims, Hoffman and Oxford alleged that in pursuing claims and remedies against them, the intervenors had an ulterior purpose of obtaining a receiver in order to oust defendants from the control and management of, and to deprive them of their ownership and equity interests in, Holdings.

{7 Subsequently, the receiver sought authority to sell the assets of Holdings and the three subsidiaries to Tri-Lakes Golf, LLC, a company formed and operated by the inter-venors and one of their business associates. As part of this transaction, Tri-Lakes would assume all of the subsidiaries' secured labilities, as well as certain liabilities of the subsidiaries that intervenors Adelberg and Harshberger had previously assumed. In support of his application to conduct this proposed sale, the receiver asserted that the subsidiaries had no ability to be self-sufficient or profitable and that under the cireum-[393]*393stances, such an asset sale would be "the most practical and useful solution."

T8 After a hearing, the district court granted the receiver's application, ultimately issuing two written orders (the sale orders). In so ruling, the court reasoned that its power to grant the application was derived not from its general equity authority, but from its power to effect a judicial dissolution. The court further opined that such a dissolution was appropriate because the subsidiaries were in a "deadlock," were insolvent, and were unable to continue to operate absent an appropriate change in their cireumstances.

T9 As a result of the foregoing transactions, Tri-Lakes appears to have acquired the Bank's claims against defendants. Moreover, although the record is unclear, TriLakes appears to have then been substituted for the Bank as plaintiff and to have withdrawn all claims brought by the Bank, other than those concerning the receivership.

¶ 10 After the assets of Holdings and the subsidiaries were sold, the intervenors moved to certify the sale orders as final under C.RC.P. 54(b). Over Hoffman's objection, on December 13, 2010, the district court granted the intervenors' motion. As pertinent here, the court concluded that (1) the sale orders arose from an aggregate of operative facts relating to the appointment of a receiver and the disposition of assets under the jurisdiction and control of the court and the receiver; (2) the claims determined by such orders were separate and distinct from the other claims in the case; (8) there was nothing further to be done with respect to the claims for the appointment of a receiver and the sale of the assets; and (4) the sale orders reflected the ultimate disposition of the claims related therein, and there was no just reason for delay in entering final judgment. Defendants, who were proceeding pro se at the time, did not file an appeal of this order within forty-five days.

{ 11 Thereafter, the receiver submitted his final report and requested that the court discharge him from any further responsibilities. The district court granted this request.

12 The intervenors then moved for summary judgment on defendants' counterclaims for abuse of process and civil conspiracy, and the court ultimately granted these motions. As pertinent here, the court concluded that the intervenors had engaged in no wrong because they had merely pursued rights that they were accorded by law and agreement.

T13 Thereafter, the intervenors stipulated to the dismissal of their remaining claims against defendants, and the court dismissed those claims with prejudice. At that point, there were no remaining claims pending among the parties, and the judgment became final.

1 14 Within forty-five days of the dismissal, defendants filed their notice of appeal.

IIL The Sale Orders

15 Defendants contend that the district court erred in numerous ways when it issued the sale orders. The Bank and the interve-nors assert, however, that we should not consider these arguments because defendants' appeal of the sale orders was untimely, having not been filed within forty-five days of the district court's C.R.C.P. 54(b) certification. Toward that end, the Bank and the intervenors have moved to dismiss that portion of this appeal.

1 16 Defendants respond that because the sale orders were not properly subject to certification under C.R.C.P. 54(b), the certification was a nullity. They thus contend that their time to appeal did not begin to run until after all of the claims in this case were finally resolved.

1 17 As an apparent matter of first impression in Colorado, we conclude that the district court properly certified the sale orders under C.R.GC.P. 54(b) because, in our view, those orders constituted the resolution of a single and separable claim for relief within the meaning of the rule.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Erbey Holding Corporation v. Black Rock Financial Management, Inc.
2025 V.I. 25 (Supreme Court of The Virgin Islands, 2025)
Smith v. City and County of Denver
2025 COA 70 (Colorado Court of Appeals, 2025)
Dean v. Casey
Colorado Court of Appeals, 2025
Muth v. Wright
Colorado Court of Appeals, 2025
Smart v. Stropas
Colorado Court of Appeals, 2025
Reistad v. Burman
Colorado Court of Appeals, 2024
v. Parrish
2019 COA 19 (Colorado Court of Appeals, 2019)
Active Release Techniques, LLC v. Xtomic, LLC
2017 COA 14 (Colorado Court of Appeals, 2017)
Cikraji v. Snowberger
410 P.3d 573 (Colorado Court of Appeals, 2015)
Ranch O, LLC v. Colorado Cattlemen's Agricultural Land Trust
2015 COA 20 (Colorado Court of Appeals, 2015)
Gagne v. Gagne
2014 COA 127 (Colorado Court of Appeals, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
2013 COA 146, 338 P.3d 390, 2013 WL 5947234, 2013 Colo. App. LEXIS 1737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colorado-community-bank-v-hoffman-coloctapp-2013.