Free Order on Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:03-cv-02504-REB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 03-cv-02504-REB-CBS PETER HORNICK, an individual, Plaintiff, v. GARY BOYCE, and JOANNE BOYCE, individuals, Defendants.

ORDERS RE: DEFENDANTS' POST-TRIAL MOTIONS Blackburn, J. This matters before me are 1) defendants' Motion To Amend or Alter Findings [#116] filed September 18, 2006; 2) Defendants' Forthwith Motion to Stay Judgment Pending Determination of Post-trial Motions [#117] filed September 18, 2006; and 3) Defendants' Fed R. Civ. P. 26 (c) Motion for Protective Order Striking Debtor Interrogatories [#130] filed October 24, 2006. I grant in part and deny in part defendants' Motion To Amend or Alter Findings [#116], I grant Defendants' Forthwith Motion to Stay Judgment Pending Determination of Post-trial Motions [#117], and I deny as moot Defendants' Fed R. Civ. P. 26 (c) Motion for Protective Order Striking Debtor Interrogatories [#130]. First, concerning the Motion To Amend or Alter Findings [#116], defendants advance three principal arguments: 1) that damages (including prejudgment interest) for 1

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breach of contract must be calculated based on the circumstances of the parties as they existed at the time of the breach on December 11, 2001; 2) that to eschew violation of the Younger abstention doctrine, damages must be limited to those existing as of the breach on December 11, 2001; and 3) that there was insufficient competent and relevant evidence to support an award of damags. Concerning defendants' first contention ­ that damages (including prejudgment interest) for breach of contract must be calculated based on the circumstances of the parties as they existed at the time of the breach on December 11, 2001 ­ I agree. In a breach of contract action, a plaintiff may recover the amount of damages that are required to place him in the same position he would have occupied had the breach not occurred. Schneiker v. Gordon, 732 P.2d 603, 612 (Colo.1987); Taylor v. Colorado State Bank of Denver, 580, 440 P.2d 772, 774 (1968). Thus, Hornick is entitled to the benefit of his bargain vis-à-vis the Hornick-Boyce Option Agreement. (Exhibit 5). Thus, the extant findings of fact and conclusions of law should be amended accordingly. Therefore, Hornick's damages on December 11, 2001, at the time of Boyces' breach of contract was the value of Boyces' one-half interest in Villa Grove in the amount of $2,000,000 minus the $500,000 Hornick agreed to pay for that one-half interest. Having found that damages (including prejudgment interest) for breach of contract must be calculated based on the circumstances of the parties as they existed at the time of the breach on December 11, 2001, defendants' second argument, which implicates the Younger abstention doctrine, is rendered moot. See Younger v. Harris, 401 U.S. 307 (1971).

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Concerning defendants' third argument that there is insufficient competent and relevant evidence to support more than an award of nominal damages, I find and conclude as follows. My finding of entity-asset valuation,1 was based primarily on Hornick's credible and informed testimony as a co-owner, which was competent, probative, and substantial2 and supported by an objective, evidentiary basis. Importantly, defendants did not object to his testimony on any grounds ­ competence, relevance, or otherwise.3 Hornick's testimony, which was based on his experience, research and reflection, provided me with a reasonable basis by which to compute damages with a reasonable degree of certainty.4 Thus, the cause and existence of substantial damages have been established.5 The evidentiary record permitted me to make a reasonable finding that provided for a fair, equitable, and adequate award of damages.6
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See Findings of Fact, Conclusions of Law , and Orders [#110] at 4-5, ¶ 15.

See Roberts v. Adam s, 47 P.3d 690, 697 (Colo.App.,2001) ("Substantial evidence is that which is probative, credible, and com petent. It is evidence of a character that would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradicting testim ony or contradictory inferences.") (internal citations om itted) Indeed, Hornick's testim ony was not subject to objection. Thus, his evidentiary presentation was qualitatively different than that condem ned in Realty Loans, Inc. v. Mc Coy, 523 P.2d 476, 478 (Colo.App. 1974), notwithstanding defendants' lack of objection in that trial. See Sonoco Products Co. v. Johnson, 23 P.3d 1287, 1290 (Colo.App.,2001) ("Once the fact of dam age has been established with the requisite degree of certainty, uncertainty as to the am ount of dam ages will not bar recovery. W estern Cities Broadcasting, Inc. v. Schueller, 849 P.2d 44 (Colo.1993).") See Roberts, 47 P.2d at 698-697 ("Generally, recovery for dam ages is allowed once the cause and existence of dam ages have been established, even though the exact am ount of dam ages m ay be uncertain or im possible to determ ine. Graphic Directions, Inc. v. Bush, 862 P.2d 1020 (Colo.App.1993)") See Sonoco Products Co., 23 P.3d at 1289 ("The factfinder has the sole prerogative to assess the am ount of dam ages, and its award will not be set aside unless it is m anifestly and clearly erroneous. Kincaid v. W estern Operating Co., 890 P.2d 249 (Colo.App.1994). Under the circum stances of each case, the trial court has the responsibility to m ake a reasonable finding that would provide for a fair, equitable,
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Next, concerning Defendants' Forthwith Motion to Stay Judgment Pending Determination of Post-trial Motions [#117], I approve, adopt, and incorporate the reasons stated, arguments advanced, and authorities cited by defendants in their motion. Additionally, I note that the District Court of Saguache County, Colorado, has entered a similar stay under §13-53-105, C.R.S., which state court stay implicates Fed.R.Civ.P. 62(f). Thus, defendants' motion should be granted. Finally, Defendants' Fed R. Civ. P. 26 (c) Motion for Protective Order Striking Debtor Interrogatories [#130], should be denied as moot because the stay, which is in effect in state court and which is imminent in this case, applies to the interrogatories at issue. THEREFORE, IT IS ORDERED as follows: 1. That defendants' Motion To Amend or Alter Findings [#116] filed September 18, 2006, IS GRANTED in part and IS DENIED in part: the motion is granted concerning the request to limit the calculation of damages (and prejudgment interest) to the date of the breach of contract on December 11, 2001, but is denied otherwise; 2. That Defendants' Forthwith Motion to Stay Judgment Pending Determination of Post-trial Motions [#117] filed September 18, 2006, IS GRANTED; and 3. That Defendants' Fed R. Civ. P. 26 (c) Motion for Protective Order

and adequate award of dam ages. Peterson v. Colorado Potato Flake & Manufacturing Co., 164 Colo. 304, 435 P.2d 237 (1967).")

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Striking Debtor Interrogatories [#130] filed October 24, 2006, IS DENIED as moot. Dated December 27, 2006, at Denver, Colorado. BY THE COURT s/ Robert E. Blackburn Robert E. Blackburn
United States District Judge

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