Weston v. T & T, LLC

271 P.3d 552, 2011 Colo. App. LEXIS 1052, 2011 WL 2186434
CourtColorado Court of Appeals
DecidedMay 26, 2011
DocketNo. 09CA2786
StatusPublished
Cited by10 cases

This text of 271 P.3d 552 (Weston v. T & T, LLC) 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
Weston v. T & T, LLC, 271 P.3d 552, 2011 Colo. App. LEXIS 1052, 2011 WL 2186434 (Colo. Ct. App. 2011).

Opinion

Opinion by

Judge ROY.

T & T, LLC (T & T) appeals the trial court's judgment in favor of Rick Weston (creditor). Specifically, T & T contends that the trial court erred when it (1) permitted a non-attorney to represent T & T during the proceedings; (2) allowed creditor to intervene in the action despite his failure to file a motion pursuant to C.R.C.P. 24(c); (8) permitted creditor to assert a claim under the Colorado Uniform Fraudulent Transfer Act (CUFTA), §§ 38-8-101 to -112, C.R.S8.2010; (4) awarded creditor twenty percent prejudgment interest on his attorney fees and costs; and (5) awarded certain attorney and expert witness fees We affirm the judgment in part, vacate it in part, and remand for computation of interest on the award of attorney fees and costs.

I. Background

Michael Shinn (entrepreneur) held interests in a variety of companies, including National Home Trust Corporation (NHTC), which developed and sold franchises premised on a residential rent-to-own concept. Entrepreneur's two children were the sole members of T & T, and his son, Todd Shinn, was the manager.

In the fall of 2005, entrepreneur decided to purchase a restaurant and special event location (Manor House) through T & T. Howev[555]*555er, his children did not have the capital or credit to finance the purchase. Entrepreneur then devised a plan to transfer money from various other accounts and entities, including NHTC, into his children's accounts to give them the appearance of financial viability. Creditor loaned $150,000 to NHTC in exchange for a security agreement and promissory note (Note), the purpose of which was purportedly to assist NHTC in paying off another creditor. Shortly thereafter, NHTC transferred $100,000 to another of entrepreneur's companies. Following that, a series of large transfers among entrepreneur's various companies took place. This culminated in transfers to the children, individually, who then transferred money into T & T's account to purchase Manor House.

Two former employees of NHTC filed this action against NHTC, alleging that entrepreneur had transferred several hundred thon sand dollars from NHTC to T & T, which in turn used it to purchase Manor House. The employees requested that they be awarded an interest in T & T.

In the interim, NHTC defaulted on creditor's loan and creditor obtained a default judgment against NHTC. In an effort to collect on that judgment, creditor sought to intervene in this action by filing an intervention complaint. His complaint alleged that funds had been fraudulently transferred from NHTC to T & T, and he requested the appointment of a receiver, money damages, and a constructive trust on T & T's assets. The employees settled their claims, which then were dismissed with prejudice.

After a protracted period of discovery, motions, and a trial, the trial court determined that entrepreneur had transferred creditor's money in violation of CUFTA and awarded creditor $160,666.67, plus interest, attorney fees, and costs in accordance with the terms of the promissory note. lowed. This appeal fol-

II. Intervention

At the outset, we consider T & T's argument that the trial court erred in permitting creditor to intervene upon the filing of a complaint but without filing a motion seeking intervention as required by C.R.C.P. 24(c). We conclude that the trial court did not abuse its discretion in permitting creditor's intervention.

We review a trial court's conclusion as to whether a would-be permissive interve-nor has satisfied the requirements for intervention under C.R.C.P. 24(b) for an abuse of discretion. See Grijalva v. Elkins, 132 Colo. 315, 318-19, 287 P.2d 970, 972 (1955) ("It can seldom, if ever, be shown that the trial court abused its discretion in denying the permissive right to intervene.").

We conclude that the appropriate standard for review of a trial court's conclusion as to whether a would-be intervenor has satisfied the procedural requirements of C.R.C.P. 24(c) is also for an abuse of diseretion. See Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 595 (7th Cir.1993) ("Whether to permit a procedurally defective motion to intervene is within the sound discretion of the district court."); Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 313 (6th Cir.2005) (same); Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 474 (9th Cir.1992) (same); cf. Lattany v. Garcia, 140 P.3d 348, 350 (Colo.App.2006) (abuse of discretion review for timeliness determination). This approach accords with the general principle that "issues involving what can broadly be labeled 'supervision of litigation'" are reviewed for abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 559, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).

Intervention may be permitted by the trial court where a statute confers a conditional right to intervene or when an applicant's claim or defense and the main action share a common question of law or fact. C.R.C.P. 24(b) (permissive intervention). Persons desiring intervention shall serve a motion to intervene upon the parties, stating the grounds therefor. C.R.C.P. 24(c).

Although the requirements of C.R.C.P. 24(c) should not be disregarded, we disagree with T & T that creditor's failure to file a motion precluded intervention. See 7C C. Wright, A. Miller & M.K. Kane, Federal Practice and Procedure § 1914 (3d ed. 2007) [556]*556{even the lack of a formal motion to intervene may be overlooked in compelling circumstances); see also Am. Nat'l Bank & Trust Co. v. Bailey, 750 F.2d 577, 582 (7th Cir.1984) (party's failure to file a formal motion to intervene before it files a counterclaim would not necessarily be fatal to its status as an intervenor); Spring Constr. Co. v. Harris, 614 F.2d 374, 377 (4th Cir.1980) (where a party fails to strictly comply with the requirements of Rule 24(c), the proper approach is to disregard non-prejudicial defects); Shores v. Hendy Realization Co., 133 F.2d 738, 742 (9th Cir.1943) (where petition fully stated the grounds and facts upon which relief was asked, the failure to fully comply with procedure was a technicality that did not result in the invasion of a substantial right).

In addition, we conclude that Capitol Industrial Bank v. Strain, 166 Colo. 55, 442 P.2d 187 (1968), upon which T & T relies, is distinguishable. There, the intervenor filed a motion to intervene, but no pleading. Over objection, the trial court proceeded to hear the case on the merits and entered judgment for the intervenor. In reversing the judgment, our supreme court concluded that the trial court's failure to require a pleading deprived the opposing party of the opportunity to assert defenses to the intervenor's claim. Id. at 59, 442 P.2d at 188-89.

T & T did not suffer any similar prejudice here.

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Cite This Page — Counsel Stack

Bluebook (online)
271 P.3d 552, 2011 Colo. App. LEXIS 1052, 2011 WL 2186434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weston-v-t-t-llc-coloctapp-2011.