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Semler v. Hellerstein

Court of Appeals of Colorado, Second Division

August 25, 2016

R. Parker Semler, Plaintiff-Appellant,
Bruce S. Hellerstein; Perfect Place, LLC; Bruce S. Hellerstein, CPA P.C.; Charles Bewley; and Berenbaum Weinshienk, P.C., Defendants-Appellees.

         City and County of Denver District Court No. 14CV32364 Honorable Robert L. McGahey, Jr., Judge.

          Semler and Associates, P.C., R. Parker Semler, Jeremy Goldblatt, Matthew Nelson, Denver, Colorado, for Plaintiff-Appellant

          Podoll & Podoll, P.C., Richard B. Podoll, Robert C. Podoll, Robert A. Kitsmiller, Greenwood Village, Colorado, for Defendants-Appellees Bruce S. Hellerstein; Perfect Place, LLC; and Bruce S. Hellerstein, CPA P.C.

          Wheeler Trigg O'Donnell LLP, Carolyn J. Fairless, Denver, Colorado, for Defendants-Appellees Charles Bewley; and Berenbaum Weinshienk, P.C.


          ASHBY JUDGE.

         ¶ 1 Plaintiff, R. Parker Semler, appeals from the trial court's order granting the motions to dismiss of defendants, Bruce S. Hellerstein; Perfect Place, LLC; Bruce S. Hellerstein, CPA P.C.; Charles Bewley; and Berenbaum Weinshienk, P.C., and denying Semler's motion to amend his complaint. Semler also appeals from the trial court's denial of his motion for postjudgment relief and its award of attorney fees and costs in defendants' favor. We affirm in part, reverse in part, and remand the case for further proceedings.

         I. Background

         ¶ 2 Semler and Perfect Place are both members of the 1940 Blake Street Condominium Association (Association). Hellerstein owns and controls both Perfect Place and Bruce S. Hellerstein, CPA P.C. (collectively, the Perfect Place defendants). Hellerstein also served as treasurer of the Association when he allegedly committed the conduct discussed below. Bewley is an attorney employed by the law firm of Berenbaum Weinshienk, P.C. At all relevant times, Bewley represented Hellerstein and his two corporate entities.

         ¶ 3 The current litigation stems from a related quiet title action in which Perfect Place asked the court to determine that it was the rightful owner of parking spaces C, D, and E. According to Semler, he had acquired title to parking space C more than seven years before this litigation began. He also acquired title to parking space D through a deed of trust and for significant consideration. Perfect Place asserted that it had acquired title to parking spaces C, D, and E via a quitclaim deed from John Watson and two entities that Watson controlled in June 2011. The court presiding over the quiet title action determined that Semler owned parking spaces C and D, while Perfect Place owned parking space E.

         ¶ 4 Perfect Place appealed and that appeal is currently pending before another division of this court.

         ¶ 5 Semler then brought the current suit claiming that Bewley and Hellerstein devised a scheme to gain title to Semler's building parking spaces C and D. Semler alleged that Bewley and Hellerstein, through various misrepresentations made to Watson, induced Watson to sign deeds conveying Semler's parking spaces to Perfect Place. According to Semler, Hellerstein, as the treasurer of the Association, breached his fiduciary duty to Semler by scheming to take his parking spaces. Bewley, by representing Hellerstein, conspired with and helped Hellerstein in his efforts to improperly gain title to the parking spaces. And Berenbaum Weinshienk failed to properly supervise Bewley, was vicariously liable for Bewley's conduct, and breached an agreement to not represent one Association member against another. Semler's first amended complaint alleged claims only for breach of fiduciary duty against Hellerstein, aiding and abetting that breach against Bewley, and civil conspiracy against all defendants.

         ¶ 6 Defendants filed two motions to dismiss, one based on C.R.C.P. 12(b)(5) and one based on a lack of standing. Soon thereafter, Semler moved to amend his complaint a second time, proposing to add claims for fraud, nondisclosure and concealment, negligent misrepresentation, negligent supervision, vicarious liability, and breach of contract. He also more clearly explained that he was seeking damages for the lost income opportunities he suffered as a result of having to defend against the quiet title action.[1]

         ¶ 7 The court granted the motions to dismiss and denied Semler's second motion to amend. The court also awarded attorney fees in favor of defendants.

         II. Timeliness of the Notice of Appeal

         ¶ 8 Defendants assert that Semler's notice of appeal was untimely and, therefore, we lack jurisdiction to consider the appeal. We disagree.

         ¶ 9 "The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review." Estep v. People, 753 P.2d 1241, 1246 (Colo. 1988). Under C.A.R. 4(a), the notice of appeal must be filed "within 49 days of the date of the entry of the judgment, decree, or order from which the party appeals."

         ¶ 10 As relevant here, one method by which to calculate the forty-nine-day period is from the date the court grants or denies a Rule 59 motion. C.A.R. 4(a). Thus, "[t]he timely filing of a motion pursuant to C.R.C.P. 59 tolls the time for filing a notice of appeal." Goodwin v. Homeland Cent. Ins. Co., 172 P.3d 938, 944 (Colo.App. 2007).

         ¶ 11 Nevertheless, defendants argue that because there was no trial and Semler made the same arguments in his postjudgment motion as he had in earlier pleadings, Semler's motion did not qualify as a C.R.C.P. 59 motion. They further argue that because Semler asked the court to vacate its orders of dismissal, the postjudgment motion could only be construed as a motion to vacate the judgment under C.R.C.P. 60. And, because a postjudgment motion pursuant to C.R.C.P. 60 does not toll the time within which to file a notice of appeal, Semler's appeal is untimely.

         ¶ 12 We find the out-of-state cases cited by defendants distinguishable, [2] follow those prior Colorado cases that construe motions such as Semler's - filed in cases that ended before a trial - as motions under C.R.C.P. 59, and conclude that this appeal is timely. See SMLL, L.L.C. v. Daly, 128 P.3d 266, 269 (Colo.App. 2005); Small v. Gen. Motors Corp., 694 P.2d 374, 375 (Colo.App. 1984).

         ¶ 13 Here, the day after the court entered its order dismissing Semler's claims, Semler filed a motion for reconsideration pursuant to C.R.C.P. 59. The court denied the motion about one month later on December 22, 2014. Exactly forty-nine days later, on February 9, 2015, Semler filed his notice of appeal. Therefore, we conclude the appeal was timely filed and that we do have jurisdiction to consider the appeal.

         III. Motion to Amend Complaint

         ¶ 14 Semler contends that the trial court erred by denying his motion for leave to amend his complaint a second time.

         ¶ 15 We generally review a trial court's decision to grant or deny a motion to amend for an abuse of discretion. See Benton v. Adams, 56 P.3d 81, 85 (Colo. 2002). However, "[w]hen a trial court denies leave to amend on grounds that the amendment would be futile because it cannot survive a motion to dismiss, we review that question de novo as a matter of law." Id.

         ¶ 16 Our courts favor a liberal policy toward amending pleadings. Under C.R.C.P. 15(a), "where leave of court is required to amend a pleading, 'leave shall be freely given when justice so requires.'" Civil Serv. Comm'n v. Carney, 97 P.3d 961, 966 (Colo. 2004) (quoting C.R.C.P. 15(a)). In determining whether to grant leave, the court should consider the totality of the circumstances. Id. Some grounds for denying a motion to amend include "undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies in the pleadings via prior amendments, undue prejudice to the opposing party, and futility of amendment." Benton, 56 P.3d at 86.

         ¶ 17 Here, in its omnibus order dismissing the case, the trial court denied Semler's motion to amend his complaint (for the second time) but stated no basis for doing so other than articulating why Semler had no standing to pursue any alleged fraud against or misrepresentation to Watson, the prior owner of the parking spaces. And the court's dismissal of the action was specifically premised on Semler's fraud claims. These claims were not included in Semler's initial or amended complaint and were new to the second amended complaint. Therefore, it appears to us that even though the court denied Semler's motion to amend, it did in fact consider the second amended complaint when ruling on the motion to dismiss. Defendants acknowledge this in their answer brief.

         ¶ 18 We presume, therefore, that the court's denial of Semler's motion to amend was premised on its dismissal of the entire action and the futility of further proceedings. Thus, we will review the trial court's ...

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