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Berger v. Dixon & Snow9/9/1993
Plaintiff, Andrea S. Berger, trustee in bankruptcy for W.D. Tripp and Mining Service Exchange, appeals from various rulings of the trial court dismissing all claims for relief against defendants, Dixon & Snow, P.C., and Rod W. Snow, for failure to state a claim or on the ground that the statute of limitation had run. Berger also appeals from the trial court's rulings denying her motion for leave to amend her complaint and awarding costs to defendants. We reverse.
This controversy arises from an underlying dispute between Tripp and defendants' client, Robert Parga. As is pertinent here, a judgment for $437,000 was entered in favor of Parga after a jury trial. Defendants, acting for Parga, offered to settle the judgment for $250,000. Tripp accepted, but defendants, acting for Parga, attempted to revoke the offer. Defendants represented Parga throughout the settlement negotiations and in all subsequent legal dealings between Tripp and Parga.
Thereafter, Tripp filed a notice of appeal of the $437,000 judgment, posted a $480,000 supersedeas bond, and also filed a separate action against Parga to enforce the settlement agreement. The judgment was affirmed. Parga v. Tripp, (Colo. App. No. 83CA1329, September 11, 1986) (not selected for publication). Tripp unsuccessfully sought to delay payment of the bond proceeds until determination of the validity of the settlement agreement, and ultimately the bond company made payment to Parga. Defendants collected those proceeds and distributed them to Parga, less costs and contingency fees due defendants.
Subsequently, at the trial on the action to enforce the settlement agreement, the court determined that the settlement agreement was valid and that Parga had thus been unjustly enriched by $235,000 -- the difference between the $485,000 bond proceeds and the $250,000 for which Parga had agreed to settle. This court affirmed that judgment. Tripp v. Parga, 847 P.2d 165 (Colo. App. 1992).
The trustee then brought this action against defendants to recover the $235,000, or at least $78,333 which represents the portion of defendants' contingency fee that was based on the $235,000. The trustee's complaint alleged fraudulent and malicious conduct by defendants during negotiation of the settlement agreement and during the disbursement of the bond proceeds. Her other claims, based generally on the doctrine of restitution, included unjust enrichment, money had and received, quasi-contract, and constructive trust (collectively, restitution claims).
Upon a C.R.C.P. 12(b)(5) motion by defendants, the trial court dismissed all of the trustee's restitution claims for failure to state a claim, stating in pertinent part:
The court hereby finds that Plaintiff's claims arise out of Defendants' representations of their client against whom plaintiff was an adversary. The court further finds that Plaintiff's [restitution claims] for Relief do not state the claims against Defendants for fraudulent or malicious conduct and, therefore, do not state claims upon which relief can be granted. The Court hereby Orders dismissal of those claims.
Subsequently defendants were granted summary judgment on the fraudulent and malicious conduct claim on the ground that the statute of limitation had run.
The trustee then moved to amend her complaint to assert a claim for creditor's bill. The trial court denied this motion as untimely. The court further awarded full costs to defendants under ยง 13-17-202, C.R.S. (1993 Cum. Supp.) as the trustee had rejected a timely offer of settlement by defendants.
I.
The trustee first c
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