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. Taylor,
Vellone Wolf Helfrich & Factor P.C., Patrick D. Vellone,
Jordan Factor, Rachel A. Sternlieb, Lance J. Henry, Denver,
Colorado, for Plaintiffs-Appellees
Chipman 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 outspoken
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 JBC's motion because a
genuine dispute exists as to the issue of adequate
court recognized JBC's admission that "it did not
make the initial payment due under the agreements." Then
the court noted JBC's 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
JBC's obligation to make the first payment."
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 River's
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 JBC's 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
court's 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. 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
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 standards have been met." Cary v. United
of Omaha Life Ins. Co., 68 P.3d 462, 466 (Colo. 2003).
Moving Party's Summary Judgment Burden
14 Buyers' argument that sellers failed to meet their
burden of showing the absence of a disputed issue of material
fact falls short.
15 The burden of establishing the nonexistence of any genuine
issue of material fact is on the moving party. Civil
Serv. Comm'n v. Pinder, 812 P.2d 645, 649 (Colo.
1991). To do so, that party must inform the court of the
basis for the motion and "identify those portions of
the record and of the affidavits, if any, which . . .
demonstrate the absence of a genuine issue of material
fact." Cont'l Air Lines, Inc. v. Keenan,
731 P.2d 708, 712 (Colo. 1987). But "affidavits
containing mere conclusions" are not sufficient to meet
this burden. Smith v. Mehaffy, 30 P.3d 727, 730
(Colo. App. 2000); see Ginter v. Palmer & Co.,
196 Colo. 203, 207, 585 P.2d 583, 585 (1978) (Summary
judgment was improper where the "statements in ...