SOUTHERN CROSS RANCHES, LLC, and Ranch Management, LLC, Plaintiffs-Appellees,
JBC AGRICULTURAL MANAGEMENT, LLC, Defendant-Appellant, and Crystal River Meat, LLC, Third-Party Plaintiff-Appellant.
County District Court No. 16CV30552, Honorable Todd L.
Vellone Wolf Helfrich & Factor P.C., Patrick D. Vellone,
Jordan Factor, Rachel A. Sternlieb, Lance J. Henry, Denver,
Colorado, for Plaintiffs-Appellees
Glasser, LLC, David S. Chipman, John M. Bowlin, Denver,
Colorado, for Defendant-Appellant and Third-Party
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, first denying and then granting summary
judgment, without explanation. Therefore, we reverse the
summary judgments and remand for further proceedings.
Background and Procedural History
3] JBC Agricultural Management, LLC, entered into
separate contracts to buy cattle from plaintiffs Southern
Cross Ranches, 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
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 initial payment deadline.
Sellers opposed the motion with counter affidavits and an
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 JBCs motion because a genuine
dispute exists as to the issue of adequate assurances.
court recognized JBCs admission that "it did not make
the initial payment due under the agreements." Then the
court noted JBCs 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 JBCs obligation to make the
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
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
Rivers 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 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
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 JBCs 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. Because we agree with buyers that the trial
courts inconsistent summary judgment rulings require
reversal, we do not reach the fourth contention.
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, 369 P.3d 586. 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.
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 ...