Flores v. Flores

• Court: Colorado Court of Appeals
• Decided: October 21, 2021
• Docket: 20CA0024
• Status: Unknown

Opinion

20CA0024 Flores v Flores 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0024

Adams County District Court No. 18CV68

Honorable Rayna Gokli McIntyre, Judge

Robert A. Flores,

Plaintiff-Appellant and Cross-Appellee,

v.

Joaquin R. Flores,

Defendant-Appellee and Cross-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE J. JONES

Freyre and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Robert A. Flores, Pro Se

Fischer & Fischer, P.C., Ronnie Fischer, Jennifer K. Fischer, Lisa C. Secor,

Denver, Colorado, for Defendant-Appellee and Cross Appellant

1

¶ 1

In this contract dispute, plaintiff, Robert A. Flores, appeals the

district court’s judgment entered on jury verdicts in favor of

defendant, Joaquin R. Flores, his son.1 Joaquin cross-appeals the

district court’s order denying his post-trial motion relating to

damages. We affirm.

I. Background

¶ 2

This case arose from a dispute over the ownership of real

property (the Xavier property). In 2003, Joaquin purchased the

Xavier property for Robert to live in. Robert funded the down

payment, but the property is titled in Joaquin’s name because he

financed the rest of the purchase price, taking out two loans

secured by the property.

¶ 3

Joaquin paid the mortgage on and the expenses related to the

property. From 2003 through late 2011, Robert paid Joaquin

$1,500 per month, which covered most, but not all, of the mortgage

and expenses. Malinda Flores regularly maintained a record of

Robert’s payments and shortfalls.

1 Because both parties (and other witnesses) share the same last

name, we refer to them by their first names to avoid any confusion.

In doing so, we intend no disrespect.

2

¶ 4

From December 2011 through April 2017, Robert made the

monthly $1,500 payments only sporadically. Robert didn’t make

any payments thereafter.

¶ 5

In mid-2018, Robert sued Joaquin, claiming that Joaquin had

breached an oral agreement that Joaquin would convey the title to

Robert. The agreement, Robert says, required him to make monthly

payments for the mortgage and expenses to maintain the property

in exchange for equity. He alleged that the parties orally agreed

that he could “skip payments” and that he stopped making

payments in 2017 because Joaquin claimed ownership of the

property. Robert also asserted claims for breach of fiduciary duty,

civil theft, quantum meruit, and unjust enrichment.

¶ 6

Before answering the complaint, Joaquin moved to dismiss it.

The court granted that motion in part, dismissing the breach of

fiduciary duty, civil theft, and quantum meruit claims, leaving only

the breach of contract and unjust enrichment claims standing.

¶ 7

Joaquin answered the complaint. He denied ever agreeing to

purchase the Xavier property to later convey it to Robert or that

Robert had any equity in it. Joaquin asserted that he was actually

paying the property’s mortgage and most of the expenses required

3

to maintain it. He claimed that he intended only for Robert to live

in the Xavier property in return for payment of rent and any related

costs. Joaquin asserted a counterclaim against Robert for breach of

contract based on Robert’s failure to pay rent and all related

expenses on the Xavier property, which Joaquin characterized as

“lease payments.”

¶ 8

Robert moved to amend his complaint to add a variety of

claims. The court denied that motion.

¶ 9

Before trial, Joaquin moved for summary judgment on

Robert’s remaining claims and on his counterclaim for breach of

contract. The court granted the motion as to Robert’s unjust

enrichment claim because a contract existed between the parties.

The court denied the motion as to the breach of contract claims,

leaving only those claims to be resolved.

¶ 10

At the end of trial, the jury found in favor of Joaquin but didn’t

award him any damages.

¶ 11

Joaquin filed a motion for judgment notwithstanding the

verdict under C.R.C.P. 59, arguing that the uncontroverted evidence

showed that he was entitled to $72,000 in damages. He asked for

4

an award of that amount or, alternatively, a new trial on damages.

The district court denied that motion.

¶ 12

Robert appeals and Joaquin cross-appeals.

II. Discussion

¶ 13

Robert contends that the district court erred by (1) admitting

an Excel spreadsheet itemizing Robert’s payments and shortfalls

(Exhibit D) as a business record under CRE 803(6); (2) excluding

text messages and evidence of a telephone conversation between

Joaquin and his brother, Sean, as evidence of settlement

discussions under CRE 408; (3) demonstrating bias; (4) denying his

motion for a mistrial based on the admission of Exhibit D; (5)

excluding evidence of the change in his relationships with his sons;

(6) rejecting his proposed jury instructions; (7) granting Joaquin

partial summary judgment; and (8) denying his pretrial motion to

amend his complaint. We reject all of these contentions.

¶ 14

But first, we address Joaquin’s cross-appeal because our

resolution of the issue he raises — that the district court

erroneously instructed the jury on his counterclaim — impacts

several of Robert’s arguments.

5

A. Cross-Appeal

¶ 15

Joaquin contends that the district court erred by denying his

motion for judgment notwithstanding the verdict. Specifically, he

argues that the district court erroneously instructed the jury on his

breach of contract counterclaim. The mistake was that the verdict

form for Joaquin’s counterclaim substituted “plaintiff” for

“defendant” in one of the questions the jury was to answer (whether

Joaquin had substantially performed his obligations under the

contract), and when the jury answered “no” to that question the

form directed it not to answer whether Joaquin had been damaged

as a result of Robert’s breach. (Joaquin also points to a similar

problem in Instruction 27 setting forth the elements of his

counterclaim.) So the jury found for Joaquin on his counterclaim,

but didn’t award him any damages.

¶ 16

The problem for Joaquin is that his counsel didn’t preserve

this issue for appeal by timely objecting to the erroneous verdict

form. C.R.C.P. 51 says that “[a]ll instructions shall be submitted to

the parties, who shall make all objections thereto before they are

given to the jury. Only the grounds so specified shall be considered

on motion for a new trial or on appeal . . . .” (Emphasis added.)

6

¶ 17

Therefore, a party’s failure to make a timely objection to an

erroneous instruction before the jury receives it waives the ability to

raise the error on appeal. See Harris Grp., Inc. v. Robinson, 209

P.3d 1188, 1195, 1201 (Colo. App. 2009); Smiley’s Too, Inc. v.

Denver Post Corp., 935 P.2d 39, 42 (Colo. App. 1996).

¶ 18

Joaquin argues that this issue was preserved for appeal

because counsel and the court caught one error in responding to a

jury question and simply overlooked the other. He is incorrect.

Objecting to, or catching, one error didn’t preserve an argument as

to another. The fact is, his counsel failed to timely object to the

error he raises on appeal. Thus, the claim of error was waived and

we won’t consider it.

¶ 19

Joaquin invites us, however, to review the issue for plain error,

in the interest of justice. We decline the invitation. Joaquin’s

counsel tendered the verdict form (and elemental instruction)

containing the mistake, as the district court found in denying

Joaquin’s post-trial motion and as Joaquin concedes on page 12 of

his answer brief. Plain error review in civil cases is extremely rare.

We don’t think applying it is appropriate when the error the party

complains of is of the party’s own making. See JW Constr. Co. v.

7

Elliott, 253 P.3d 1265, 1271 (Colo. App. 2011); Harris Grp., 209

P.3d at 1195 (plain error review of instructional issues is rare and

should occur only when necessary to avoid unequivocal and

manifest injustice); see also McGill v. DIA Airport Parking, LLC, 2016

COA 165, ¶¶ 9-10 (a party may not complain of an error on appeal

that he invited or injected into the case).

¶ 20

We therefore affirm the jury’s award and the district court’s

denial of Joaquin’s post-trial motion.

B. Appeal

1. Exhibit D

¶ 21

Because Robert raises several issues concerning Exhibit D, we

address them together. Robert contends that the district court

erred by (1) admitting Exhibit D into evidence as a business record

under CRE 803(6); (2) admitting the exhibit though Joaquin hadn’t

disclosed it before trial; (3) admitting Exhibit D even though it didn’t

meet the requirements of a summary under CRE 1006 because it

wasn’t supported by original documentation; and (4) denying his

motion for a mistrial based on the inadmissibility of the exhibit.

¶ 22

Joaquin alleged that Robert breached a contract by failing to

make agreed-upon payments. Robert didn’t dispute that he didn’t

8

make payments; he alleged that he wasn’t required to because of an

oral agreement between the parties. Exhibit D didn’t have anything

to say about that issue. Rather, Joaquin introduced Exhibit D to

establish the monetary damages he incurred as a result of Robert’s

breach. But despite the jury’s finding that Robert breached the

contract, it didn’t award Joaquin any damages. We have affirmed

that aspect of the judgment. Thus, holding that the court

erroneously admitted Exhibit D would be of no benefit to Robert,

and therefore his arguments concerning the exhibit are moot. See

Top Rail Ranch Ests., LLC v. Walker, 2014 COA 9, ¶ 45 (if a ruling

on an issue wouldn’t have any practical effect on the judgment, the

issue is moot); Comcast of California/Colorado, L.L.C. v. Express

Concrete, Inc., 196 P.3d 269, 275-76 (Colo. App. 2008) (same); cf.

Vanderpool v. Loftness, 2012 COA 115, ¶ 31 (jury findings against

the plaintiff on the issues of liability and causation rendered

harmless any issue relating only to damages); Dunlap v. Long, 902

P.2d 446, 448-49 (Colo. App. 1995) (jury determination that the

plaintiffs suffered no injury or damages rendered harmless any

error relating only to the defendant’s liability).

9

¶ 23

In any event, Robert’s complaints about Exhibit D are

meritless. It was prepared in the ordinary course of business and

modified only to omit information not relevant to the Xavier

property. Robert hasn’t pointed to anything in the record coming

close to showing an abuse of discretion. See, e.g., State ex rel.

Coffman v. Robert J. Hopp & Assocs., LLC, 2018 COA 69M, ¶¶ 74-75

(“If the record is a compilation of data, and the original data was

prepared in compliance with [CRE 803(6)], the fact that the data

was compiled into a spreadsheet or document for litigation does not

affect its admissibility.”); People v. Flores-Lozano, 2016 COA 149,

¶¶ 12-17 (a computer spreadsheet qualified as a business record

under Rule 803(6) because the preparer routinely investigated

employee theft and regularly prepared spreadsheets to summarize

suspect transactions from a point of sale system); People v. Ortega,

2016 COA 148, ¶ 15. To the extent Robert challenges the exhibit

based on Malinda’s alleged lack of skill as a bookkeeper, that

10

challenge goes to the weight of the evidence, not its admissibility.

See In re Estate of Fritzler, 2017 COA 4, ¶ 9.2

2. Text Messages and Phone Conversation Excluded Under CRE

408

¶ 24

Joaquin moved in limine to exclude Exhibit 4 — text messages

between Joaquin and Sean showing Joaquin’s attempt to settle his

dispute with Robert. Robert argued in response that the messages

weren’t excludable under CRE 408 because Sean didn’t have the

authority to engage in any settlement negotiations with Joaquin on

his behalf, he never received the texts, and the discussion took

place prior to this litigation.

¶ 25

The district court ruled at trial that portions of the text

messages were inadmissible under CRE 408 as evidence of

settlement negotiations or were otherwise irrelevant.

¶ 26

During trial, Robert sought to question Sean about a

conversation with Joaquin the day before the text-message

2 The district court found that Joaquin previously disclosed the

exhibit in other litigation between the parties and had attached it to

his summary judgment motion. The record supports the district

court’s ruling. As for CRE 1006, Robert hasn’t demonstrated that

the exhibit is a summary covered by the rule.

11

exchange. After Joaquin’s counsel objected, the parties and the

court discussed the admissibility of Exhibit 4 and the telephone

conversation. The next day, the court ruled evidence of the

telephone conversation was inadmissible when it ruled similarly as

to Exhibit 4. Robert made an offer of proof that Joaquin wanted to

buy Robert a car and told Sean he should “take care” of Robert.

¶ 27

Robert contends that the district court erred by excluding this

evidence under CRE 408. But he doesn’t coherently explain how

the evidence was relevant. As best we can tell, he asserts that the

evidence could have countered Joaquin’s testimony about his

efforts to resolve the dispute; that is, Joaquin gave a “one-sided

rendition regarding settlement attempts.” But some of the

testimony to which Robert points was only Joaquin saying that he,

in contrast to Robert, acted as if he owned the property. And

almost all the rest was elicited by Robert on cross-examination. He,

not Joaquin, therefore opened the door, and it should go without

saying that one party may not open the door to additional irrelevant

testimony he wishes to introduce by himself eliciting irrelevant

testimony.

12

¶ 28

In sum, we conclude that the district court didn’t abuse its

discretion by excluding this evidence.

3. Judicial Bias

¶ 29

Robert contends that the district court demonstrated bias by

failing to reprimand opposing counsel for unruly behavior during

trial and making certain comments that denied him a fair trial. We

disagree.

¶ 30

“Courts are charged with a duty to maintain order within the

courtroom and to insure a fair trial.” People v. Aleem, 149 P.3d

765, 774 (Colo. 2007). Courts have inherent authority to use all

power reasonably necessary to protect their efficient function,

dignity, independence, and integrity. People ex rel. State Eng’r v.

Sease, 2018 CO 91, ¶ 20; see also Wilkerson v. Dist. Ct., 925 P.2d

1373, 1377 (Colo. 1996) (courts have broad discretion to regulate

conduct in their courtrooms and to preserve order).

¶ 31

Robert argues, as best as we can decipher, that opposing

counsel’s behavior during trial was disruptive and personally

disrespectful. We reject Robert’s assertions as follows:

 Robert says that opposing counsel demonized him during

pretrial proceedings by moving to introduce non-

13

character evidence under CRE 404(b) to show his modus

operandi, i.e., his distinct pattern of filing lawsuits

against his family members when he doesn’t get his way.

But the district court denied opposing counsel’s motion

to introduce the evidence at trial because it wasn’t

relevant to a material issue in this case.

 Robert says that the district court acted with undue

haste by imposing “the most severe sanction possible”

when defense counsel misrepresented to the court that

he had violated C.R.C.P. 26(a) because he failed to

provide disclosures during the discovery process.

However, Joaquin’s attorney conceded that she was

mistaken about the disclosures and withdrew her

objection to Robert’s expert testifying at trial. The district

court acknowledged that its sanction was based “on an

error of fact” and that, therefore, “no C.R.C.P 37 sanction

[was] warranted” against Robert.

 Robert says that the district court failed to properly

reprimand defense counsel for insulting him by saying

(twice) that he was “full of crap.” We agree that opposing

14

counsel’s remarks were disrespectful and unprofessional.

But the district court promptly addressed the situation

by warning Joaquin’s counsel that although the trial had

been frustrating, she shouldn’t address Robert in that

manner. Counsel conceded the point and responded, “I

apologize. You’re right. It’s unprofessional . . . . I have

been taking pot shots all day and I just got fed up.” The

remarks were isolated, the court took appropriate action,

counsel acknowledged that her remarks were improper,

and counsel apologized. Cf. Fyffe v. Mass. Bay Transp.

Auth., 17 N.E.3d 453, 464-74 (Mass. App. Ct. 2014) (a

court’s failure to sufficiently reprimand the plaintiff’s

counsel for her deliberate and repeated disregard of its

directives prejudiced the defendant).

 Robert says the district court insulted him by saying,

outside the jury’s presence, “Don’t interrupt. It’s difficult

for me. I’m not as smart as you, I can’t do two things at

once, so give me one moment.” The judge’s comments,

though perhaps somewhat intemperate, were borne out

of frustration following Robert’s constant interruptions

15

during trial. On the last day of trial, the district court

made a record about Robert’s behavior during trial as

follows:

I will just note that I have told [Robert] dozens

of times to stop interrupting me, to stop

interrupting the witnesses. At one point

during the testimony when he was testifying,

he threw a binder of exhibits down, later said

that he had a hand injury, but he — he threw

that binder of exhibits down and stood up

while he did that.

. . . .

Initially in this trial, I did ask [Robert] not to

interrupt me outside of the presence of the

jury, but it continued. It’s not in the jury’s

best interest in terms of time — or this Court’s

— to excuse the jury every time that [Robert]

violates the order not to interrupt.

. . . .

There have been dozens and dozens of times

where I have been speaking, and before I’ve

even finished the words that are coming out of

my mouth, [Robert] interrupts me. And so

again, I decline to accept his statement that he

thinks I am done speaking. I have already put

on the record that if [Robert] continues to

interrupt me, it is going to disrupt the record.

And if the jury finds against him, then that is

going to cause an issue for appeal.

¶ 32

The record amply supports the court’s characterization of

Robert’s conduct. And we see no real prejudice as a result of the

16

one sarcastic remark. See Clements v. Davies, 217 P.3d 912, 917-

18 (Colo. App. 2009) (a judge’s comment that “[w]e are all running

out of patience,” made outside the presence of the jury, didn’t deny

the appellant a fair trial). Likewise, we reject any suggestion that

the court gave preferential treatment to Joaquin’s counsel.

4. Robert’s Testimony About His Family Relationships

¶ 33

Robert contends that the district court abused its discretion

by prohibiting him from testifying about and asking witnesses

about changes in his family relationships to show that he didn’t

breach the agreement because there was an oral modification.

More specifically, Robert argues that the evidence was relevant to

show that he didn’t breach the agreement with Joaquin because it

was reasonable for him to think that he could skip making monthly

payments on the Xavier property given his then-close relationship

with his sons. We disagree.

¶ 34

For the most part, Robert merely cites to portions of the record

where evidence was excluded; he doesn’t attempt to argue why

particular evidence was relevant. We won’t review such

undeveloped and conclusory assertions. People v. Thompson, 2017

COA 56, ¶ 199; Cikraji v. Snowberger, 2015 COA 66, ¶ 21 n.3; see

17

also C.A.R. 28(a)(7)(B). Likewise, though we construe pro se filings

liberally, “liberal construction does not include inventing arguments

not made by the pro se party.” Minshall v. Johnston, 2018 COA 44,

¶ 21.

¶ 35

In any event, we see no abuse of discretion by the district

court. To give one example, Robert wanted to testify about letting

his granddaughter go on a vacation with his son. That had no

bearing on the issues in the case. Further, as previously discussed,

Robert’s argument that Joaquin agreed to modify the contract to

allow him to skip payments is moot because the jury didn’t award

Joaquin any damages.

5. Jury Instructions

¶ 36

Robert contends that the district court erred by rejecting

certain of his proposed jury instructions. The only one he identifies

in his opening brief, however, is his tendered adverse inference

instruction based on spoliation.3

3 Because Robert’s assertion as to other unspecified rejected

instructions is completely undeveloped, we won’t address it. See

People v. Thompson, 2017 COA 56, ¶ 199; Cikraji v. Snowberger,

2015 COA 66, ¶ 21 n.3; see also C.A.R. 28(a)(7)(B).

18

¶ 37

We review a district court’s ruling on a proposed jury

instruction for an abuse of discretion, and we won’t set it aside

unless it was manifestly arbitrary, unreasonable, or unfair. See Aloi

v. Union Pac. R.R. Corp., 129 P.3d 999, 1004 (Colo. 2006) (“[A] trial

court has wide discretion to provide an adverse inference

instruction.”); Warembourg v. Excel Elec., Inc., 2020 COA 103, ¶ 53.

¶ 38

Robert submitted a proposed jury instruction concerning the

destruction of evidence. In essence, Robert argued that Joaquin

had destroyed certain bank records used to prepare Exhibit D. The

district court rejected Robert’s tendered spoliation instruction

because it wasn’t supported by any evidence that Joaquin had

actually destroyed or hidden any evidence from Robert during

discovery.

¶ 39

Robert questioned Malinda about the bank statements she

had used to enter data in Exhibit D. Malinda testified that she

shredded banks statements after ten years in the regular course of

business.

¶ 40

Robert’s contention fails because a spoliation instruction is

appropriate only when a party willfully destroyed evidence relevant

to pending, imminent, or reasonably foreseeable litigation. See

19

Warembourg, ¶ 84; Castillo v. Chief Alt., LLC, 140 P.3d 234, 236

(Colo. App. 2006). Robert didn’t present any evidence of any such

conduct.

6. Pre-Trial Motions

¶ 41

Robert’s last two contentions are titled “Summary Judgment”

and “Plaintiff’s First Motion to Amend Complaint,” respectively. He

purports to challenge the district court’s order granting partial

summary judgment in Joaquin’s favor on Robert’s unjust

enrichment claim and the order denying his motion to amend the

complaint to add a civil theft claim. But Robert fails to explain how

the district court erred. Because Robert failed to adequately

develop these arguments in his opening brief, we decline to review

them. See Thompson, ¶ 199; Cikraji, ¶ 21 n.3; see also United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not

like pigs, hunting for truffles buried in briefs.”).

III. Conclusion

¶ 42

The judgment is affirmed.

JUDGE FREYRE and JUDGE TOW concur.