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Ogunwo v. American National Insurance Co.3/6/1997
t any evidence that he had consummated an agreement with the trustee to purchase his non-exempt claims or that the trustee's interest in the non-exempt claims had in fact been transferred or assigned.
Because Ogunwo failed to establish that the trustee had agreed to sell the non-exempt claims to him, he has not established a power coupled with an interest.
2.
Alternatively, Ogunwo argues that, if the trial court properly determined that he did not have the power or authority to file the complaint as the agent of the trustee, then the trustee should have been substituted as the plaintiff pursuant to Ogunwo's contingent motion to amend the complaint. In that event, he contends, such substitution should relate back to the commencement of the action. We disagree.
C.R.C.P. 15(c) provides that an amended pleading changing the party against whom a claim is asserted relates back to the date of the original pleading if the claim asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading and, within the period provided by law for commencing the action, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2)
knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
Affidavits filed after the granting of a motion for summary judgment cannot be considered in a motion to reconsider, particularly when facts contained therein were, or should have been, known by or available to the party before the court rules on the summary judgment motion. Graven v. Vail Associates, Inc., 888 P.2d 310 (Colo. App. 1994), reversed on other grounds, 909 P.2d 514 (Colo. 1995).
Here, in opposing the summary judgment motion, Ogunwo did not present evidence that the trustee was willing to be substituted as a plaintiff in the action. It is true that Ogunwo subsequently filed a motion for reconsideration of the trial court's summary judgment ruling to which he attached an affidavit by the bankruptcy trustee stating that the trustee was willing to be substituted as a plaintiff in the action. However, this affidavit was not attached to Ogunwo's opposition to the motion for summary judgment, and thus, we may not consider it.
Accordingly, because Ogunwo did not timely meet his burden of establishing an agreement with the trustee or the trustee's willingness to be a plaintiff in the action, we conclude that the trial court did not err in granting ANIC's motion for summary judgment with regard to Ogunwo's non-exempt claims against ANIC.
II.
Ogunwo next contends that the trial court erred in denying his motion for reconsideration in which he argued for the first time that the doctrine of equitable tolling should have been applied. However, a court need not entertain new theories on a motion to reconsider following the grant of summary judgment. Graven v. Vail Associates, Inc., supra. Thus, the trial court did not err in denying the reconsideration motion.
The summary judgment on Ogunwo's exempt claims is reversed; the summary judgment on Ogunwo's non-exempt claims is affirmed; and the cause is remanded for further proceedings.
JUDGE MARQUEZ and JUDGE RULAND concur.
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