Melody L. Rich, individually, as Trustee of Erma L. Rich Trust, and as Agent under the Power of Attorney for Erma L. Rich, Plaintiff-Respondent,
Ball Ranch Partnership, a Colorado general partnership; Roland G. Ball; Leonard O. Ball; Tammie L. Ball; Wayne E. Ball; and Merietta B. West, Defendants-Petitioners.
Weld County District Court No. 13CV30352 Honorable Julie C. Hoskins, Judge
Announced January 29, 2015 Otis, Bedingfield & Peters, LLC, Jennifer L. Peters, Greeley, Colorado, for Plaintiff-Respondent
Witwer Oldenburg Barry & Groom, LLP, John J. Barry, Greeley, Colorado; Winters Hellerich & Hughes, LLC, Thomas E. Hellerich, Greeley, Colorado, for Defendants-Petitioners
¶ 1 Ball Ranch Partnership, Roland G. Ball, Leonard O. Ball, Tammie L. Ball, Wayne W. Ball, and Marietta B. West (collectively, petitioners) petition this court, pursuant to section 13-4-102.1, C.R.S. 2014, and C.A.R. 4.2 for interlocutory review of the district court's order denying their motion for a determination of a question of law. We dismiss the petition because the issue certified by the district court - the interpretation of a contractual provision - does not present a "question of law" within the meaning of section 13-4-102.1 and C.A.R. 4.2.
¶ 2 From those documents petitioners have submitted with their petition, we glean that this case involves a dispute over operation of the Ball Ranch Partnership. Plaintiff, Melody L. Rich, represents the Erma L. Rich Trust, which is a partner in Ball Ranch Partnership, as are, apparently, petitioners. Ms. Rich, on behalf of herself, Erma L. Rich, and the Erma L. Rich Trust, has brought suit against petitioners challenging partnership actions, alleging breaches of fiduciary duties.
¶ 3 Ball Ranch Partnership is governed by a 1982 partnership agreement. Purportedly central to the parties' dispute is the meaning of Section VIII of the agreement, entitled "RESTRICTIONS ON TRANSFER, " which states:
No partner shall, except with the written consent of all other partners, assign, mortgage, pledge, sell, lease, or otherwise dispose of his or her share in the Partnership or in the capital assets and property, directly or indirectly.
¶ 4 Petitioners moved for a determination of a question of law pursuant to C.R.C.P. 56(h), asking the court to interpret Section VIII to mean that (1) it does not restrict transfers by the partnership itself; (2) it does not restrict the ability of individual partners to make transfers on the partnership's behalf; and (3) it only restricts transfers by an individual partner of that partner's individual interest in the partnership or share of partnership capital assets or property.
¶ 5 After the parties fully briefed the issues, the district court denied the motion. The court ruled that Section VIII unambiguously prohibits transfers of interests, assets, or property by the managing partner, or any other partner purporting to act on behalf of the partnership, without written consent from all partners. Petitioners timely moved for certification under section 13-4-102.1 and C.A.R. 4.2 of the following issue: "Whether Article VII[I] of the Ball Ranch partnership agreement requires the unanimous consent of all partners for the 'conveyance, lease, assignment or hypothecation' of any Partnership property." Ms. Rich opposed the motion. The court granted the motion, noting, among other things, "a complete lack of case law authority to direct this court in how the language at issue should be interpreted." Petitioners timely filed their petition with this court.
II. "Question of Law"
¶ 6 Section 13-4-102.1(1) authorizes this court, "under rules promulgated by the Colorado supreme court, " to allow "an interlocutory appeal of a certified question of law" in a civil case, if the lower court "certifies that immediate review may promote a more orderly disposition or establish a final disposition of the litigation" and "[t]he order involves a controlling and unresolved question of law." C.A.R. 4.2(b) repeats these requirements.
¶ 7 The statute and rule are of fairly recent vintage. Consequently, few published decisions address the nature of an issue appropriate for discretionary interlocutory appeal. We have decided questions of statutory interpretation under this procedure. E.g., Indep. Bank v. Pandy, 2015 COA ___; Triple Crown at Observatory Vill. Ass'n v. Vill. Homes of Colo., Inc., 2013 COA 144, ¶ 16 ("Each question involves statutory interpretation, which is a question of law."); In re M.D.E., 2013 COA 13; Kowalchik v. Brohl, 2012 COA 25; Shaw Constr., LLC v. United Builder Servs., Inc., 2012 COA 24. We have also construed court rules under this procedure. Kowalchik, 2012 COA 25; Adams v. Corr. Corp. of Am., 264 P.3d 640 (Colo.App. 2011). And we have considered the reach of the common law under this procedure. Mid Valley Real Estate Solutions V, LLC v. Hepworth-Pawlak Geotechnical, Inc., 2013 COA 119 (cert. granted Mar. 3, 2014); see also Wahrman v. Golden W. Realty, Inc., 313 P.3d 687, 688 (Colo.App. 2011) ...