Clasificación de los modelos animales de ansiedad

No. 08CA1677. PurCo Fleet Services, Inc. v. Koenig.

Rental Vehicle—Damages—Loss of Use—Administrative Charges—Colorado Fair Debt Collection Practices Act—Attorney Fees.

PurCo Fleet Services, Inc. (PurCo) appealed the summary judgment dismissing its breach of contract claims against Judith Koenig. Koenig cross-appealed the summary judgment in PurCo‘s favor on her claims under the Colorado Fair Debt Collection Practices Act (CFDCPA). The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Koenig rented a car from National Car Rental (National) and signed the company‘s standard rental contract. While driving the car, she hit a deer, damaging the vehicle. She then returned the damaged car to National. PurCo, as National‘s assignee, attempted to collect claims against Koenig on its behalf. Koenig‘s insurer paid for the damage to the car on her behalf, but refused to pay PurCo for loss of use or the administrative charge.

On appeal, PurCo contended that the trial court erred in granting summary judgment to Koenig on its claim for loss of use. The Court of Appeals agreed. Where the damaged party‘s business is the leasing of its chattel in a profit-making enterprise, and damages are sought for lost rental value, the more

appropriate measure of damages is the net profit the owner would have received, had it been able to lease the damaged chattel during the time reasonably needed for repairs, less any expenses saved by the unavailability of the chattel. Here, although the phrase "regardless of fleet utilization" is used after the loss of use provision in the contract, National will still have to prove it suffered an actual economic loss as a result of the unavailability of this particular carduring the period reasonably necessary for repairs. Because PurCo submitted some relevant evidence of its loss of use damages, it was error for the trial court to grant summary judgment against PurCo on its loss of use claim.

The Court also agreed with PurCo that the trial court erred in granting summary judgment to Koenig concerning its claim for administrative charges. The contract language provided that Koenig would pay National for administrative charges resulting from the loss or damage to the vehicle. Although it does not state an amount, this provision of the contract is enforceable provided that the trial court finds the amount to be reasonable.

The Court rejected Koenig‘s contention on cross-appeal that PurCo is an unlicensed collection agency whose collection activities are governed by the CFDCPA, and thus the trial court was without

jurisdiction to consider PurCo‘s collection action against her. A company taking assignments of debt not in default is not required to obtain a license. PurCo falls within that exemption because at the time National assigned the debt to PurCo, the debt was not in default.

The Court also held that the trial court erred in declining to award PurCo its attorney fees and costs incurred in defending against Koenig‘s counterclaim under the CFDCPA. The term "action" in § 12-14- 113(1.5), C.R.S., includes both claims and counterclaims brought under § 12-14-113, C.R.S., in a judicial proceeding. Because Koenig brought an unsuccessful counterclaim against PurCo, the statute entitles PurCo to recover its costs and reasonable attorney fees incurred in defending against that counterclaim. Finally, the Court held that in light of the disposition on the merits, any award of costs on a prevailing party theory based on other claims is premature. The summary judgment entered against PurCo on its claims for loss of use and administrative charges was reversed, as was the award of costs and attorney fees. The trial court was directed on remand to determine and award the amount of PurCo‘s reasonable

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appellate attorney fees incurred with respect to the issues on which it succeeded. In all other respects, the judgment was affirmed.

No. 09CA0459. Planned Pethood Plus, Inc. v. KeyCorp, Inc.

Loan—Prepayment Penalty.

Plaintiff Planned Pethood Plus, Inc. (Pethood) appealed the summary judgment entered in favor of defendant KeyCorp, Inc. (Keybank) denying Pethood‘s claim for recovery of a prepayment penalty paid to Keybank to obtain release of a deed of trust. The judgment was affirmed.

Pethood is a veterinary clinic owned by two veterinarians. It obtained a commercial loan from Keybank in the amount of $389,000 at a fixed interest rate of 8.3 percent per annum for a term of ten years. The loan was secured by real property owned by the veterinarians, who also executed personal guarantees of the loan. The promissory note contained a clause, prominently displayed near the middle of the first page, allowing Pethood to partially or fully prepay the loan and entitling Keybank to a prepayment penalty if Pethood chose to do so.

On appeal, Pethood contended that the trial court erred in granting summary judgment in favor of Keybank because the prepayment penalty was not enforceable. The Court of Appeals disagreed.

Although prepayment fees are bargained-for considerations for a contractual right, the promissory note in this case required Keybank to accept prepayment and release the deed of trust if Pethood tendered the outstanding principal and the prepayment penalty. Pethood did so voluntarily, and thus fully performed under the note. In these circumstances, a prepayment penalty is not a type of liquidated damages. Further, the prepayment penalty at issue was not unconscionable. Therefore, the trial court properly found that Keybank was entitled to judgment as a matter of law.

No. 09CA0724. Colborne Corporation v. Weinstein.

Colorado Limited Liability Company Act—Unlawful Distributions—Standing—Creditors— Limited Fiduciary Duty.

Plaintiff Colborne Corporation (Colborne) is a creditor of Boulder Partnership, LLC (BP). Defendants ManyMajors Management, Inc., and Business Mechanics, Inc., (collectively, managers) are the managers of BP. The managers‘ sole shareholders, officers, and directors are defendants Kenneth Major and Michael Weinstein (collectively, members), who also are the sole members of BP.

Colborne brought this action against defendants, seeking recovery of a debt of more than $200,000 under the Colorado Limited Liability Company Act (LLC Act) and for breach of the common law fiduciary duty owed to creditors, alleging that BP‘s managers authorized, and its members accepted, distributions that rendered BP insolvent, and were therefore unlawful. On defendants‘ motion, the trial court dismissed the complaint under C.R.C.P. 12(b)(5) for failure to state a claim. The judgment was reversed and the case was remanded with directions.

On appeal, Colborne argued that Colorado case law interpreting the language of the Corporations Act providing for directors‘ liability to the corporation to extend standing to sue to creditors also should apply to extend standing to creditors who sue members of an LLC under a statute providing for their liability to the LLC. The Court of Appeals agreed. The LLC Act provides that a member who knowingly receives a distribution that renders the LLC insolvent shall be liable to the LLC. Because the

Corporations Act and the LLC Act are closely related legislative schemes, and the reasoning for extending standing to creditors is just as applicable to an LLC as it is to a corporation, creditors of an

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LLC, as a group, have standing to sue an LLC member who knowingly receives an unlawful distribution pursuant to § 7-80-606, C.R.S.

Defendants argued that the dismissal should be affirmed because Colborne did not file suit on behalf of all creditors and did not expressly allege in the complaint that it was the only unpaid creditor. The Court disagreed. Although Colborne did not specifically allege the absence of other creditors, it is not clear from the record that other unpaid creditors exist. Accordingly, the trial court erred in dismissing Colborne‘s statutory claim for lack of standing.

Colborne also argued that the limited fiduciary duty that directors of insolvent corporations have to the corporation‘s creditors also extends to managers of LLCs. The Court agreed. Managers of insolvent LLCs owe the LLC‘s creditors a limited fiduciary duty to abstain from favoring their own interests over those of the creditors. The judgment of dismissal was reversed and the case was remanded for further proceedings.

No. 09CA0130. Colorado Coffee Bean, LLC v. Peaberry Coffee Inc.

Franchise Agreement—Exculpatory Clause—Fraudulent Nondisclosure—Duty to Disclose— Rescission—Colorado Consumer Protection Act—Public Impact—Jury Demand—Negligent Misrepresentation—Bifurcation.

Plaintiffs appealed pretrial orders striking their jury demands and bifurcating the trial. They also appealed the judgment entered following a Bench trial dismissing all of their claims against defendants Peaberry Coffee, Inc. (the parent company); its wholly owned subsidiary, Peaberry Coffee Franchise, Inc. (PCFI); William I. Tointon, the sole shareholder of the parent company and its chief operating officer; James T. Orr, the parent company‘s vice president of franchising; and Perkins Coie, LLP, franchising counsel to the parent company. The judgment was affirmed in part and vacated in part, and the case was remanded with directions.

This case arose from plaintiffs‘ purchase of Peaberry Coffee franchises. Plaintiffs brought claims of fraudulent nondisclosure, negligent misrepresentation, alter ego, and violation of the Colorado

Consumer Protection Act (CCPA) against the Peaberry defendants. PCFI counterclaimed against seven plaintiffs to recover royalties under the franchise agreement.

On appeal, plaintiffs contended that the trial court erred in dismissing their fraudulent nondisclosure claims based on exculpatory clauses in the transactional documents. The Court of Appeals agreed. The general language of the exculpatory clauses did not preclude plaintiffs‘ reasonable reliance arising from nondisclosure of parent company losses, because the relevant clauses did not disclaim reliance on undisclosed but material information. Therefore, the trial court erred in finding reliance as to

nondisclosure of this information. Further, allegedly fraudulent nondisclosure of the parent company‘s losses is not protected by Federal Trade Commission regulations. However, because the trial court‘s order is unclear as to whether defendants had a duty to disclose this material information, the case was remanded for clarification. If on remand the trial court finds that plaintiffs have established fraudulent nondisclosure, it should make further findings concerning any personal liability of Tointon and Orr, and may enter judgment against one or both of them consistent with those findings. Further, defendants‘ counterclaims for breach of the franchise agreements must fail because plaintiffs elected to rescind the contracts, and PCFI is not entitled to recover appellate attorney fees.

Plaintiffs also contended that the trial court erred in its C.R.C.P. 41(b) dismissal of their claim under the CCPA. The Court disagreed. Plaintiffs failed to prove that any unfair or deceptive trade practice

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general information only and specifically disclaimed any offer of a franchise. Further, plaintiffs failed to present any evidence of the relative sophistication and bargaining power of the people who responded to the Internet posting or the sixty-eight individuals to whom an informational packet was sent. Plaintiff did not present any evidence that the franchise program had either predated the Internet posting or continued after the sixty-eight packets were sent. Accordingly, plaintiffs‘ CCPA claim was properly dismissed because they failed to prove public impact.

Plaintiffs also argued that the trial court erred in striking their jury demand. However, plaintiffs waived their right to a jury trial in the franchise agreement and, as an agent of a party to the agreement, Perkins Coie properly demanded that the claims against it be tried to the court.

Finally, the trial court properly dismissed the negligent misrepresentation claim against Perkins Coie, and the trial court did not err in bifurcating the trial of plaintiffs‘ claims against the Peaberry defendants from those against Perkins Coie to avoid prejudice.

No. 09CA0460. Lafarge North America, Inc. v. K.E.C.I. Colorado, Inc.

Summary Judgment—Duty to Defend—Indemnification—Duty to Insure.

Defendant (K.E.C.I.) appealed the district court‘s summary judgment ruling that it breached contractual obligations to defend, indemnify, and insure plaintiff (Lafarge). The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Lafarge was the general contractor for a highway construction project administered by the Colorado Department of Transportation. K.E.C.I. provided traffic control services pursuant to a subcontract with Lafarge. Late one night, a motorcyclist drove onto a highway entrance ramp and collided with a piece of road construction equipment that a Lafarge employee had parked in the only traffic lane of the ramp. The motorcyclist died, and his wife, who was a passenger, was seriously injured.

Wife sued Lafarge, the Lafarge employee who had parked the equipment, and K.E.C.I. for negligence. Lafarge demanded K.E.C.I. provide it a defense and indemnify it for any liability it might have, invoking the subcontract and K.E.C.I.‘s insurance policy, on which Lafarge was an additional named insured. K.E.C.I. and the insurer refused. Lafarge settled with wife for $700,000 in return for a release. Lafarge then brought this case against K.E.C.I. and two of its insurers, asserting claims for breach of contract, fraud, and violation of the Colorado Consumer Protection Act. The parties agreed to litigate the issues regarding the interpretation of the indemnity and insurance provisions of the subcontract. Following discovery, they filed cross-motions for summary judgment on these issues. The district court granted Lafarge‘s motion and denied K.E.C.I.‘s motion. The district court denied K.E.C.I.‘s motion for reconsideration, and K.E.C.I. appealed.

The Court of Appeals first considered the indemnity clause in the subcontract. The Court concluded that the clause unambiguously requires K.E.C.I. to indemnify Lafarge for Lafarge‘s own negligence where Lafarge‘s liability arises out of any incident that is at least partially the result of K.E.C.I.‘s acts or omissions. However, the Court agreed with K.E.C.I. that the district court erred in determining at the summary judgment stage that K.E.C.I. is liable to Lafarge under the clause. Here, there was only an allegation by the plaintiff in the personal injury case that K.E.C.I. was at fault, which is not enough to trigger the clause on summary judgment.

The Court rejected K.E.C.I.‘s challenge of the district court‘s conclusion that it breached its duty to defend on the same grounds that it challenged its breach of the duty to indemnify. Following the same

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reasoning regarding the breach of the duty to indemnify, K.E.C.I.‘s duty to defend was triggered because the injured party only need allege facts that could even potentially trigger the obligation to indemnify. The Court looked at K.E.C.I.‘s obligation to provide insurance. The certificate of insurance that K.E.C.I. provided to Lafarge indicated Lafarge was an additional named insured on K.E.C.I.‘s comprehensive general liability insurance policy. However, a document K.E.C.I. attached to the certificate indicated that the coverage was excess coverage, not primary. Therefore, the Court agreed with K.E.C.I. that it was error for the district court to conclude it was to provide primary, rather than excess, coverage. However, it disagreed with K.E.C.I. that the coverage was for its own negligence only and not for the negligence of Lafarge. The judgment was affirmed in part and reversed in part, and the case was remanded to the district court for further proceedings.

No. 09CA0956. Newflower Market, Inc. v. Cook.

Summary Judgment—Interpleader—Interest on Funds.

The Court of Appeals affirmed defendant Cook‘s appeal of the trial court‘s ruling of summary judgment for Newflower Market, Inc. (Newflower). Cook owned all of Newflower‘s stock. In her dissolution of marriage proceeding, she and her former husband (Gilliland) entered into a Memorandum of

Understanding (MOU) in December 2005. In May 2007, Cook, Gilliland, and Newflower signed an amended separation agreement that was approved and entered as a court order. In the agreement, Cook transferred 91 percent of her Newflower common stock to Gilliland, retaining 9 percent, which

subsequently was reduced to 5 percent.

Gilliland signed a promissory note for $4,850,000 payable to Cook (Cook note). Newflower signed a promissory note for $5,750,000 payable to the Gilliland/Cook Family Limited Partnership (FLP), which represented the aggregated separate amounts owed to FLP‘s partners (FLP note). The agreement provided that on FLP‘s dissolution, Newflower would execute and deliver separate replacement

promissory notes for each FLP partner‘s share, including one to Cook for $1,939,825 (Cook‘s individual FLP note).

Cook, Gilliland, and Newflower subsequently entered into a settlement agreement in October 2007 that provided Newflower would pay $4,850,000 toward principal on its obligations to Cook on January 2, 2008. It stated Cook "may apply [Newflower‘s] payment toward[ ] either obligation/note as she deems appropriate and within her sole discretion." Newflower also agreed to pay Cook $1,939,825 principal, plus accrued and unpaid interest on its "remaining indebtedness" to her when it obtained additional funding, but no later than January 2, 2009. An addendum provided this distribution would be held by "a mutually acceptable third party in an interest bearing or investment account."

On January 2, 2008, Newflower wired $4,850,000 plus accrued interest to Cook‘s personal bank account. Gilliland refused to wire the $1,939,825. On January 7, 2008, Cook notified Gilliland that she wished to allocate $1,939,825 of the $4,850,000 payment to Newflower‘s FLP obligation to her individually, thereby satisfying that obligation.

Newflower filed a complaint for interpleader and declaratory relief against Gilliland, Cook, and FLP and, with court approval, deposited $1,939,825 in the court‘s registry. On cross motions for partial summary judgment, the district court entered judgment for Newflower, because Cook admitted the FLP note was not replaced by new promissory notes payable to FLP‘s partners, and Cook and Gilliland had failed to designate a mutually acceptable third-party account to hold the $1,939,825.

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On appeal, Cook argued the summary judgment rendered meaningless the clause that allowed her to apply payment toward either note. The Court found the language of all the agreements clear and