The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY April 18, 2019
2019COA58
No. 18CA0161, Southern Cross Ranches v. JBC Agricultural Management — Civil Procedure — Summary Judgement
A division of the court of appeals concludes that under
C.R.C.P. 56, if the nonmoving party fails to oppose a summary
judgment motion, a trial court is not required to review the entire
record on file for factual disputes before ruling on a summary
judgment motion. The division further concludes that in this case
the trial court abused its discretion by making inconsistent rulings,
first denying and then granting summary judgment, without
explanation. COLORADO COURT OF APPEALS 2019COA58
Court of Appeals No. 18CA0161 Weld County District Court No. 16CV30552 Honorable Todd L. Taylor, Judge
Southern Cross Ranches, LLC, and Ranch Management, LLC,
Plaintiffs-Appellees,
v.
JBC Agricultural Management, LLC,
Defendant-Appellant,
and
Crystal River Meat, LLC,
Third-Party Plaintiff-Appellant.
JUDGMENTS REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE WEBB Román and Freyre, JJ., concur
Announced April 18, 2019
Allen Vellone Wolf Helfrich & Factor P.C., Patrick D. Vellone, Jordan Factor, Rachel A. Sternlieb, Lance J. Henry, Denver, Colorado, for Plaintiffs-Appellees
Chipman Glasser, LLC, David S. Chipman, John M. Bowlin, Denver, Colorado, for Defendant-Appellant and Third-Party Plaintiff-Appellant ¶1 Everyone would agree that under C.R.C.P. 56, summary
judgment is proper only in the absence of any disputed issue of
material fact. But if the nonmoving party fails to oppose a
summary judgment motion, must the trial court examine the entire
record on file for factual disputes or may the court limit its analysis
to materials cited in the motion? This question is unresolved in
Colorado and had divided the federal courts until a 2010
amendment to Fed. R. Civ. P. 56(c)(3), which now provides, “[t]he
court need consider only the cited materials, but it may consider
other materials in the record.”
¶2 We conclude that a trial court is not required to review the
entire record on file for factual disputes before ruling on a summary
judgment motion. Even so, we further conclude that in this case
the trial court abused its discretion by making inconsistent rulings,
explanation. Therefore, we reverse the summary judgments and
remand for further proceedings.
I. Background and Procedural History
¶3 JBC Agricultural Management, LLC, entered into separate
contracts to buy cattle from plaintiffs Southern Cross Ranches,
1 LLC, and Ranch Management, LLC (collectively, sellers). In turn,
JBC contracted to sell the cattle to Crystal River Meat, LLC, its
subsidiary (collectively, buyers). Sellers brought this action alleging
that JBC had breached the contracts by failing to make any
payments, starting with an initial payment due in October 2015.
JBC counterclaimed alleging, as relevant here, that after the initial
payment deadlines had been extended, sellers breached the
contracts by failing to certify, source, feed, and care for the cattle as
required by the contracts, and then by failing to provide adequate
assurances that they would do so. Crystal River intervened and
made similar allegations in a third-party complaint.
¶4 After substantial discovery had been taken, JBC moved for
summary judgment on its breach of contract counterclaim. JBC
supported the motion with an affidavit from its principal, Tai W.
Jacober (Jacober affidavit), detailing problems with the cattle and
referencing emails that Jacober averred confirmed extension of the
2 initial payment deadline. Sellers opposed the motion with counter
affidavits and an outspoken brief. 1
¶5 On June 12, 2017, in a lengthy written order, the trial court
began by saying
Because JBC has not met its burden to show that there is not a genuine dispute about whether it breached the purchase agreements at issue before the [sellers’] alleged breach, I deny the motion. I also deny JBC’s motion because a genuine dispute exists as to the issue of adequate assurances.
The court recognized JBC’s admission that “it did not make the
initial payment due under the agreements.” Then the court noted
JBC’s assertion that “the parties modified the terms of the
agreements through email and agreed to defer the initial payment
due on October 15 to a later date.” But “[t]he plaintiffs responded
by submitting affidavits . . . both asserting that neither of the
plaintiffs expressly or impliedly agreed to modify JBC’s obligation to
make the first payment.”
——————————————————————— 1 In opposing the summary judgment motion, sellers argued: “The notion that JBC’s counterclaim is fit for summary judgment is laughable”; “Other disputes barring summary judgment are of the he-said-she-said variety of which JBC knew full well before filing its motion”; and “Why JBC chose to waste Court and party resources with its summary judgment motion is unfathomable.”
3 ¶6 Shortly thereafter, and less than a month before the
then-scheduled trial date, counsel for buyers moved to withdraw,
citing nonpayment. The trial court granted the motion and reset
the trial to February 5, 2018. The case remained dormant until
November 3, 2017, when sellers moved for summary judgment on
all claims, counterclaims, and third-party claims.
¶7 Because buyers were still without counsel, they could not
oppose the motion. See Woodford Mfg. Co. v. A.O.Q., Inc., 772 P.2d
652, 653 (Colo. App. 1988). The trial court signed the summary
judgment orders tendered by sellers, one of which entered judgment
against JBC for approximately $2,500,000 plus interest, costs, and
attorney fees; the other dismissed the counterclaims and Crystal
River’s third-party complaint. The orders did not mention any
aspect of the earlier summary judgment proceeding.
¶8 Four weeks later, new counsel entered their appearance for
buyers. Counsel moved to vacate the summary judgment orders
under C.R.C.P. 60(b)(5). According to the motion, the trial court
had improperly entered the summary judgment orders without
having considered “the entire record, and its own prior holdings,
which demonstrated the existence of genuine issues of material
4 fact.” The court denied the motion, explaining only that “[b]ecause
[buyers] have a remedy — an appeal — relief under C.R.C.P.
60(b)(5) is not appropriate.” 2
¶9 Buyers now contend the summary judgments should be set
aside on four grounds. First, because sellers submitted conclusory
affidavits, they failed to meet their burden to prove the nonexistence
of a genuine issue of material fact. Second, the materials
supporting JBC’s earlier summary judgment motion, which the trial
court should have considered, established disputed issues of
material fact. Third, the trial court did not cite any exception to the
law of the case doctrine in disregarding its earlier summary
judgment order finding disputed issues of material fact. And
fourth, the court denied buyers due process by entering summary
judgment against them after having explained in allowing their
counsel to withdraw that they could not lose on the merits until
trial.
¶ 10 Sellers agree that the first three contentions were preserved.
Buyers concede that the fourth assertion was not preserved.
——————————————————————— 2 Because buyers have not appealed this ruling, we express no
opinion on the trial court’s rationale.
5 Because we agree with buyers that the trial court’s inconsistent
summary judgment rulings require reversal, we do not reach the
fourth contention.
II. Summary Judgment
A. Standard of Review and General Law
¶ 11 Summary judgment is reviewed de novo, applying the same
standard as the trial court. City of Fort Collins v. Colo. Oil, 2016 CO
28, ¶ 9. But “arguments and evidence not presented to the trial
court in connection with a motion for summary judgment will not
be considered on appeal.” Timm v. Reitz, 39 P.3d 1252, 1255 (Colo.
App. 2001).
¶ 12 Summary judgment is appropriate only when no genuine issue
of material fact exists and the moving party is entitled to judgment
as a matter of law. C.R.C.P. 56(c); Martini v. Smith, 42 P.3d 629,
632 (Colo. 2002). The opposing party is entitled to the benefit of all
favorable inferences that may reasonably be drawn from the
undisputed facts, and all doubts as to the existence of a triable
issue of fact must be resolved against the moving party. Martini, 42
P.3d at 632.
6 ¶ 13 Summary judgment allows the parties to “pierce the formal
allegations of the pleadings and save the time and expense
connected with trial when, as a matter of law, based on undisputed
facts, one party could not prevail.” Peterson v. Halsted, 829 P.2d
373, 375 (Colo. 1992). Yet, summary judgment “is a drastic
remedy, to be granted only when there is a clear showing that the
applicable standards have been met.” Cary v. United of Omaha Life
Ins. Co., 68 P.3d 462, 466 (Colo. 2003).
B. The Moving Party’s Summary Judgment Burden
¶ 14 Buyers’ argument that sellers failed to meet their burden of
showing the absence of a disputed issue of material fact falls short.
¶ 15 The burden of establishing the nonexistence of any genuine
issue of material fact is on the moving party. Civil Serv. Comm’n v.
Pinder, 812 P.2d 645, 649 (Colo. 1991). To do so, that party must
inform the court of the basis for the motion and “identify[] those
portions of the record and of the affidavits, if any, which . . .
demonstrate the absence of a genuine issue of material fact.” Cont’l
Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987). But
“affidavits containing mere conclusions” are not sufficient to meet
this burden. Smith v. Mehaffy, 30 P.3d 727, 730 (Colo. App. 2000);
7 see Ginter v. Palmer & Co., 196 Colo. 203, 207, 585 P.2d 583, 585
(1978) (Summary judgment was improper where the “statements in
the affidavit . . . are insufficient to prove or disprove the allegations
in the complaint or answer, or are merely self-serving conclusions
of the ultimate facts.”).
¶ 16 If a nonmoving party fails to respond to a summary judgment
motion, the court cannot treat the motion as confessed. C.R.C.P.
121, § 1-15(3) (“Other than motions seeking to resolve a claim or
defense under C.R.C.P. 12 or 56, failure of a responding party to file
a responsive brief may be considered a confession of the motion.”);
see Jules v. Embassy Props., Inc., 905 P.2d 13, 15 (Colo. App. 1995)
(“Although it may be risky for a party not to respond, the absence of
a response does not affect the burden of the party moving for
summary judgment to demonstrate that it is entitled to judgment as
a matter of law.”). Still, “[a]n affirmative showing of specific facts,
uncontradicted by any counter affidavits, leaves a trial court with
no alternative but to conclude that no genuine issue of material fact
exists.” Pinder, 812 P.2d at 649.
¶ 17 By any reckoning, this case turns on which party breached
first. According to sellers’ affidavits, JBC breached by failing to
8 make any payments, including an initial payment due on October
15, 2015. In its answer to the complaint, JBC admits having failed
to make payments; but in its counterclaim, JBC alleges that sellers
did not perform under the agreements and fraudulently induced
JBC to enter into the agreements.
¶ 18 Even so, “the nonmoving party may not rest on its mere
allegations or denials of the opposing party’s pleadings but must
provide specific facts demonstrating a genuine issue for trial.” Colo.
Oil, ¶ 8. And by failing to respond, buyers did not provide the court
with any such facts.
¶ 19 The affidavits submitted by sellers aver that “[a]t all times,
[sellers] w[ere] ready, willing, and able to perform its obligations
under the [agreements]”; that “JBC failed or refused to make any of
the payments owing under the [agreements]”; that “JBC had no
justification or excuse for these failures”; and that sellers “made no
false or misleading statements . . . regarding the terms of the
[agreements].” These facts support sellers’ claim that JBC breached
the agreements by failing to make any payments. And absent any
counter affidavits, the court was entitled to accept them as true.
See McDaniels v. Laub, 186 P.3d 86, 87 (Colo. App. 2008) (“A
9 motion for summary judgment supported by an affidavit, to which
no counteraffidavit is filed, establishes the absence of an issue of
fact, and the court is entitled to accept the affidavit as true.”).
¶ 20 Be that as it may, buyers point to a discrepancy on the face of
the agreement with Ranch Management. Specifically, the
agreement requires JBC to pay $100 per head of cattle on October
15, 2015, but it was not signed until November 10, 2015. The
affidavit of Ranch Management’s manager does not explain this
discrepancy. Although buyers did not raise this discrepancy below,
we consider it because it is intrinsic to the documents that were
before the trial court when it entered the summary judgments. See
Roberts v. Am. Family Mut. Ins. Co., 144 P.3d 546, 548 (Colo. 2006).
Simply put, sellers failed to establish when JBC’s initial payment
under the Ranch Management agreement was due.3
¶ 21 Despite this discrepancy, the affidavit of the Ranch
Management manager avers that JBC failed to make any payments
under the agreement. So, regardless of when the initial payment
——————————————————————— 3 This discrepancy does not appear in the Southern Cross
agreement, which was signed on August 25, 2015.
10 was due, the fact that no payments were ever made remains
undisputed.
¶ 22 Buyers’ argument that sellers’ affidavits were mere conclusory
statements of the ultimate fact — that JBC breached the contract —
misses the mark. See Sweet v. TCI MS, Inc., 47 So. 3d 89, 94 (Miss.
2010) (breach of contract affidavit was conclusory where it did “not
show when or how TCI attempted to obtain financing, or why TCI’s
available options were unsatisfactory”). Under C.R.C.P. 56(e),
affidavits supporting summary judgment “shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant
is competent to testify to the matters stated therein.”
¶ 23 After all, sellers’ affidavits contain information from persons
who have personal knowledge of the agreements (they signed them)
and of the operations of Southern Cross and Ranch Management
(they manage them). See People v. Hernandez & Assocs., Inc., 736
P.2d 1238, 1240 (Colo. App. 1986) (“The supporting affidavit must
contain evidentiary material, which, if the affiant were in court and
testifying on the witness stand, would be admissible as part of his
testimony.”). The affiants aver specific facts showing how sellers
11 were ready to perform when JBC breached. These facts are
admissible evidence and suffice to support summary judgment. See
Suncor Energy (USA), Inc. v. Aspen Petroleum Prods., Inc., 178 P.3d
1263, 1269 (Colo. App. 2007) (“A conclusory statement made
without supporting documentation or testimony is insufficient to
create an issue of material fact.”).
¶ 24 In sum, we conclude that sellers met their burden of showing
the absence of a factual issue on JBC’s breach by nonpayment. So,
we turn to the next step of summary judgment review.
C. The Nonmoving Party’s Burden
¶ 25 Under C.R.C.P. 56(e), if the moving party meets its burden, the
burden shifts to the nonmoving party:
When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of the opposing party’s pleadings, but the opposing party’s response by affidavits or otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If there is no response, summary judgment, if appropriate, shall be entered.
(Emphasis added.) Because JBC did not respond, we ask only
whether summary judgment was appropriate. Unsurprisingly,
12 buyers say “no” because the Jacober affidavit established disputed
issues of material fact and the trial court was required to review all
materials then “on file.” Even accepting buyers’ view of this
affidavit, we conclude that Rule 56 does not require a trial court to
review the record beyond the materials cited in the summary
judgment motion and any opposition.
¶ 26 To begin, we return to the language of the rule. C.R.C.P. 56(c)
provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
(Emphasis added.) No Colorado court has addressed whether
C.R.C.P. 56(c) requires a court to examine the record beyond the
materials cited in the summary judgment motion and any
opposition. Because C.R.C.P. 56(c) is “similar to a Federal Rule of
Civil Procedure, we may look to federal authority for guidance in
construing the Colorado rule.”4 Benton v. Adams, 56 P.3d 81, 86
——————————————————————— 4 C.R.C.P. 56(c) is identical to the prior version of Fed. R. Civ. P.
56(c).
13 (Colo. 2002). Still, looking to federal authority only gets us so far;
before the 2010 amendment, the circuits were split.
¶ 27 Supporting buyers are cases like Keiser v. Coliseum Properties,
Inc., 614 F.2d 406, 410 (5th Cir. 1980), where the court held that
summary judgment can be granted only “if everything in the record
pleadings, depositions, interrogatories, affidavits, etc. demonstrates
that no genuine issue of material fact exists.” (Emphasis added.)
The court explained that “Rule 56 does not distinguish between
documents merely filed and those singled out by counsel for special
attention[;] the court must consider both before granting a
summary judgment.” Id.; see Stepanischen v. Merchs. Despatch
Transp. Corp., 722 F.2d 922, 930 (1st Cir. 1983) (“Failure of the
nonmoving party to match the length and quality of the moving
party’s papers does not automatically relieve the court of its
statutory task of determining whether ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact.’” (quoting Fed. R. Civ. P. 56(c))).
¶ 28 Supporting sellers are cases such as Keenan v. Allan, 91 F.3d
1275, 1279 (9th Cir. 1996), where the court held that “[i]t is not [the
14 task of the court] to scour the record in search of a genuine issue of
triable fact.” (Citation omitted.) Instead, the court must be able to
rely “on the nonmoving party to identify with reasonable
particularity the evidence that precludes summary judgment.” Id.
(citation omitted); see Bennett v. Dr Pepper/Seven Up, Inc., 295 F.3d
805, 808-09 (8th Cir. 2002) (“The court was not bound, by rule or
otherwise, to search the record for genuine issues of fact, when
Bennett failed to bring such issues to the attention of the court in a
timely-filed response to the motion for summary judgment.”); United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (When reviewing
summary judgment, “[j]udges are not like pigs, hunting for truffles
buried in” the record). 5
¶ 29 Widening our inquiry, Guarino v. Brookfield Township
Trustees, 980 F.2d 399, 404 (6th Cir. 1992), expands on the
reasoning behind the latter approach. The court held that
“[n]othing in either the Rules or case law supports an argument
——————————————————————— 5 An earlier seventh circuit case held in “reaching its [summary judgment] determination the court has the power to penetrate the allegations of fact in the pleadings and look at any evidential source to determine whether there is an issue of fact to be tried.” Mintz v. Mathers Fund, Inc., 463 F.2d 495, 498 (7th Cir. 1972).
15 that the trial court must conduct its own probing investigation of
the record.” Id. at 405. Then it went on to explain that requiring a
trial court to do so
would leave nothing to discourage the non-moving party, especially one with a reasonably arguable case, from declining (or “forgetting” or being “too busy”) to respond to a motion for summary judgment, secure in the knowledge that the [trial] court would be required to excavate all of the presented record, and find for itself any nuggets of evidence that might demonstrate genuine issues of material fact.
Id.
¶ 30 Even worse, as the Guarino court pointed out, if summary
judgment were granted,
[the] passive party could still relax, assured that [it] could timely file an appeal, flyspeck the factual record . . . and only then, on de novo review, identify for the court of appeals the answers, the exhibits and the other facts [they] wish[] to assert as supporting specific issues. Indeed, precisely because the review is de novo, with the appellate court standing in the same position as did the trial court, no principle exists under appellants’ argument that could legitimately deflect a nonmoving party’s insistence that the appellate panel itself assume the duty to search for genuine issues. What concept of judicial economy is served when judges (at least one, perhaps as many as
16 four) are required to do the work of a party’s attorney?
Id. at 405-06 (citation omitted).
¶ 31 And Guarino recognized that requiring a court to do the work
of the nonmoving party raises another concern. It is “inappropriate
for the court to abandon its position of neutrality in favor of a role
equivalent to champion for the non-moving party: seeking out facts,
developing legal theories, and finding ways to defeat the motion.”
Id. at 406.
¶ 32 For the following three reasons, we align with those circuits
holding that where no opposition is filed, a trial court need not look
beyond the materials cited in the summary judgment motion.
¶ 33 First, “when interpreting two statutory sections, we must
attempt to harmonize them to give effect to their purposes and, if
possible, reconcile them so as to uphold the validity of both.”
Gonzales v. Allstate Ins. Co., 51 P.3d 1103, 1106 (Colo. App. 2002).
C.R.C.P. 56 includes two competing provisions: under C.R.C.P.
56(c), a trial court must enter summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show no genuine issue as to any
17 material fact”; under C.R.C.P. 56(e), the nonmoving party “must set
forth specific facts showing that there is a genuine issue for trial.”
Were we to interpret C.R.C.P. 56(c) as requiring a trial court to
examine the entire record on file before entering summary
judgment, the mandate (“must”) of C.R.C.P. 56(e) could be
disregarded with impunity. See Pineda-Liberato v. People, 2017 CO
95, ¶ 39 (“We cannot . . . interpret statutory provisions so as to
render any of their words or phrases meaningless or superfluous.”).
But reading C.R.C.P. 56 as a whole, these two provisions can be
reconciled to mean “that whatever establishes a genuine issue of
fact must both be in the . . . court file and set forth in the
response.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d
1026, 1029 (9th Cir. 2001).
¶ 34 Second, interpreting C.R.C.P. 56(c) as not requiring a trial
court to search the entire record would be consistent with Colorado
cases recognizing that the parties are responsible for alerting
appellate courts to portions of the record supporting their
arguments. See Mauldin v. Lowery, 124 Colo. 234, 236, 255 P.2d
976, 977 (1953) (“Our Court will not search through briefs to
discover what errors are relied on, and then search through the
18 record for supporting evidence.”); Valentine v. Mountain States Mut.
Cas. Co., 252 P.3d 1182, 1186 (Colo. App. 2011) (“When a party
does not point us to where an issue was raised and resolved, he
‘place[s] the burden of searching records on us’ — a search we are
not required to undertake.” (quoting O’Quinn v. Baca, 250 P.3d 629,
631 (Colo. App. 2010))); Brighton Sch. Dist. 27J v. Transamerica
Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996) (“[I]t is not the
duty of the reviewing court to search the record for evidence to
support bald assertions.”). We discern no principled basis on which
to exempt appellate courts from this burden while imposing it on
trial courts.
¶ 35 Third, this interpretation comports with Colorado cases that
decline to consider a new argument on appeal opposing summary
judgment. See White v. Progressive Mountain Ins. Co., 62 P.3d
1074, 1077 (Colo. App. 2002) (declining to address a new argument
raised in opposition to the summary judgment). Requiring courts to
scour the record for disputed facts would allow a party opposing
summary judgment to remain silent below, only to point out
19 disputed facts to an appellate court that the trial court had not
found and obtain a reversal. 6
¶ 36 Alternatively, buyers argue that the trial court should have
examined the entire record because they were unrepresented by
counsel during the second summary judgment proceeding. But
Colorado courts do not provide special treatment to unrepresented
litigants, at least in civil cases. See Negron v. Golder, 111 P.3d 538,
541 (Colo. App. 2004) (Pro se parties are “bound by the same rules
of civil procedure as attorneys licensed to practice law.”); see also
Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986) (where a
pro se litigant failed to respond to a summary judgment motion, the
court held “pro se litigants in the ordinary civil case should not be
treated more favorably than parties with attorneys of record”).7
——————————————————————— 6 Of course, “it has . . . long been within the discretion of appellate
courts to address an error appearing of record.” Roberts v. Am. Family Mut. Ins. Co., 144 P.3d 546, 550 (Colo. 2006); see C.A.R. 1(d). However, because we reverse the summary judgments for other reasons, we decline buyers’ invitation to do so. 7 Contrary federal authority cited by buyers is limited to pro se
cases brought by prisoners. See Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968) (“[T]he requirements of the summary judgment rule may not fairly be applied ‘with strict literalness’ to a prisoner unrepresented by counsel and subject to the ‘handicaps . . . detention necessarily imposes upon a litigant.’”) (citation omitted).
20 ¶ 37 In the end, we conclude that under C.R.C.P. 56(c), a trial court
is not required to review the record beyond the material cited in a
summary judgment motion and any opposition. So, we necessarily
further conclude that buyers cannot rely on the Jacober affidavit to
show a disputed issue of material fact.
III. The Trial Court’s Inconsistent Rulings
¶ 38 Buyers next contend the trial court erred by entering
summary judgment in favor of sellers because the court departed
from its earlier summary judgment ruling that found disputed
material facts without explanation. Despite our conclusion
requiring only limited record review concerning factual issues before
deciding an unopposed summary judgment motion, we agree that
the court’s failure to reconcile its inconsistent prior ruling
constituted an abuse of discretion which requires us to reverse the
summary judgments.
A. Law of the Case Doctrine
¶ 39 Initially, buyers argue that the trial court erred by entering
summary judgment because its prior ruling denying summary
judgment constituted the law of the case. This argument
misinterprets the law of the case doctrine.
21 ¶ 40 The law of the case doctrine is a discretionary rule providing
that courts should generally follow prior rulings in a case. In re
Estate of Walter, 97 P.3d 188, 191 (Colo. App. 2003). The doctrine
applies to decisions of law, not to findings of fact or preliminary
rulings. Paratransit Risk Retention Grp. Ins. Co. v. Kamins, 160 P.3d
307, 313 (Colo. App. 2007). For these reasons, the law of the case
does not apply to a denial of a summary judgment motion. See
Gavend v. Malman, 946 P.2d 558, 561 (Colo. App. 1997) (The law of
the case doctrine “does not preclude a second judge assigned to a
case from considering a motion for summary judgment denied by a
previous judge, even if based upon the same issues.”). And in any
event, courts have “never . . . held that the ‘law of the case’ doctrine
prevents a trial court from clarifying or even revisiting its prior
rulings.” In re Bass, 142 P.3d 1259, 1263 (Colo. 2006).
¶ 41 So, we turn to a trial court’s discretion to depart from a prior
ruling.
B. Trial Court Discretion to Revisit Prior Rulings
¶ 42 Next, buyers argue that “[t]he trial court articulated no reason
for departing from its prior ruling regarding JBC’s summary
judgment motion. And there is no record evidence providing a good
22 reason.” At oral argument, sellers agreed that no further discovery
had been taken between the two motions.
¶ 43 In general, “[e]very ruling or order made in the progress of an
on-going proceeding may be rescinded or modified during that
proceeding upon proper grounds.” Broyles v. Fort Lyon Canal Co.,
695 P.2d 1136, 1144 (Colo. 1985); see C.R.C.P. 54(b) (Any order not
made final “is subject to revision at any time before the entry of
judgment adjudicating all the claims . . . .”). But in this context,
what is meant by “upon proper grounds”?
¶ 44 Upon proper grounds at least requires that the trial court’s
action be within the bounds of discretion. A trial court abuses its
discretion “when it misconstrues or misapplies the law,” People v.
Sieck, 2014 COA 23, ¶ 5; “fail[s] to exercise discretion,” People v.
Darlington, 105 P.3d 230, 232 (Colo. 2005); or rules in a manner
“manifestly against the weight of evidence,” Hytken v. Wake, 68
P.3d 508, 510 (Colo. App. 2002).
¶ 45 To be sure, the trial court’s two summary judgment rulings
involved the same question — whether disputed facts exist as to
which party breached the agreements first. In the initial ruling, the
court found that “a genuine dispute exists as to whether JBC
23 breached the purchase agreement first.” But according to the
second ruling, “JBC breached [the] agreement[s] when it failed to
make any payment[s] . . . .” Thus, contrary to sellers’ assertion, the
orders are inconsistent. This inconsistency does not vanish
because buyers were movants when the motion was denied and
sellers were movants when the motion was granted.
¶ 46 In most cases, we would resolve such a seeming inconsistency
by reviewing the trial court’s explanation of why its ruling changed.
For example, after further discovery, facts may no longer be in
dispute. See Peralta v. Dillard, 744 F.3d 1076, 1088 (9th Cir. 2014)
(“Denial of summary judgment may result from a factual dispute at
the time. That dispute may disappear as the record develops.”).
But the second order did not mention the first order, much less give
any reason for reaching the opposite result. For that matter, it did
not even expressly find the absence of disputed factual issues.
¶ 47 But even without an explanation, because trial courts are
presumed to know and apply the law, appellate courts often
overlook similar shortcomings. See Alamosa Indus. Stores Co. v.
Hill, 74 Colo. 86, 88, 219 P. 210, 211 (1923) (“[W]e must presume
the trial court will apply the appropriate rule of law.”). But here,
24 because the trial court merely signed the orders tendered by sellers
along with their summary judgment motions, “we scrutinize the
order more critically.” Chostner v. Colo. Water Quality Control
Comm’n, 2013 COA 111, ¶ 26; see Uptime Corp. v. Colo. Research
Corp., 161 Colo. 87, 93-94, 420 P.2d 232, 235 (1966) (“Where the
findings of the trial court are verbatim those submitted by the
successful litigant, we will . . . scrutinize them more critically and
give them less weight than if they were the work product of the [trial
court].”). The rationale behind the mandate of critical scrutiny
clouds the presumption that the trial court understood and applied
the law. The picture is even murkier here because sellers’ summary
judgment motion did not mention either buyers’ earlier summary
judgment motion or the order denying it.
¶ 48 Taking a closer look at the second order, we are unable to
discern that the trial court considered its prior summary judgment
ruling before making the inconsistent ruling. In other words, while
the court had discretion to disregard its prior ruling, the record
does not show that it consciously did so. And “[a] court’s failure to
exercise discretion can be an abuse of discretion.” People v. Hardin,
2016 COA 175, ¶ 30.
25 ¶ 49 So, too, is discretion abused when a ruling is “manifestly
against the weight of evidence.” Hytken, 68 P.3d at 510.
Comparing the prior order to the affidavits sellers submitted in
support of their summary judgment motions leaves no reasoned
doubt that factual issues abound. For example, those affidavits
aver that “JBC failed or refused to make any of the payments
owing,” “JBC had no justification or excuse for these failures,” and
“neither of the parties amended those terms.” But the initial order
denying summary judgment recognized JBC’s assertion that the
parties had modified the agreements “to defer the initial payment
due on October 15 to a later date,” and recognized that “a genuine
dispute exists as to whether JBC breached the agreements first.”
See, e.g., Meyerowich v. Carrere Gen. Contractors, Inc., 611 So. 2d
41, 43 (Fla. Dist. Ct. App. 1992) (“The trial court made inconsistent
rulings when it first determined Rose Meyerowich to be an
indispensable party and then prior to the entry of the final
judgment, denied her motion to intervene to cure the defect in the
pleadings. Under such circumstances we must hold the trial court
abused its discretion.”); Haney v. Camp, 739 S.E.2d 399, 400 (Ga.
Ct. App. 2013) (“Because the trial court issued inconsistent rulings
26 . . .[,] we vacate the trial court’s order and remand this case for
further proceedings consistent with this opinion.”).
¶ 50 For these reasons, we conclude that the trial court abused its
discretion in entering the summary judgments.
IV. Conclusion
¶ 51 The summary judgments in favor of sellers are reversed and
the case is remanded for further proceedings.
JUDGE ROMÁN and JUDGE FREYRE concur.