Maldonado v. Pratt , 409 P.3d 630 ( 2016 )

COLORADO COURT OF APPEALS 2016COA171
Court of Appeals No. 15CA2085
Pueblo County District Court No. 14CV30856
Honorable Kimberly Karn, Judge
Lisa Maldonado and the Estate of Jacob Maldonado,
Plaintiffs-Appellants,
v.
Dennis Pratt and Karon Pratt, a/k/a Karen M. Pratt,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE HARRIS
Dailey and Furman, JJ., concur
Announced November 17, 2016
Earl & Earl, PLLC, Collin J. Earl, Ryan T. Earl, Colorado Springs, Colorado, for
Plaintiffs-Appellants
Nathan, Bremer, Dumm & Myers, P.C., Mark H. Dumm, Kaitlin M. Akers,
Denver, Colorado, for Defendants-Appellees
¶1 In this appeal, we must determine whether an amended
complaint’s new claim against a new defendant, asserted after the
statute of limitations has run, relates back to the date of the
original complaint.
¶2 Plaintiffs Lisa Maldonado and the Estate of Jacob Maldonado
(collectively, the Estate) sued Dennis Pratt II (Pratt Jr.) for wrongful
death, in connection with Pratt Jr.’s fatal shooting of Jacob
Maldonado (Maldonado). Months later, after the statute of
limitations had run on any negligence claims, the Estate sought to
amend its complaint to add a new claim under the Premises
Liability Act against Pratt Jr.’s mother (Karen) and father Dennis
Pratt (Pratt Sr.) (collectively, the Pratts). The Estate contended that
it had recently learned that the Pratts, not Pratt Jr., owned the
property where the shooting occurred.
¶3 We conclude, as the district court did, that the Pratts did not
have timely notice of the original action. Accordingly, the amended
complaint does not relate back to the original complaint and the
Estate’s claim is time barred.
¶4 We therefore affirm the district court’s entry of judgment in
favor of the Pratts.
1
I. Background
¶5 The Pratts and Pratt Jr. own adjacent properties in a rural
area near Pueblo, Colorado. Pratt Jr. stored used car parts on his
property, in a spot located about a quarter mile from his parents’
house.
¶6 Pratt Jr. began to suspect that someone was stealing the car
parts. On the night of October 16, 2012, he drove his truck to the
storage area. When he saw beams from three flashlights
approaching the area, he got out of his truck and fired his rifle in
the direction of the lights, killing Maldonado.
¶7 A jury convicted Pratt Jr. of negligent homicide and he was
sentenced to six years’ imprisonment.
¶8 On September 16, 2014, one month before the end of the
limitations period, the Estate filed a wrongful death action against
Pratt Jr., alleging a single claim of negligence based on his act of
shooting Maldonado. The complaint was served on Pratt Jr. at the
Department of Corrections (DOC), where he was serving his
sentence.
¶9 On April 1, 2015, the Estate filed an amended complaint,
retaining the wrongful death claim against Pratt Jr. but asserting
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an additional claim against the Pratts under the Premises Liability
Act (PLA), section 13-21-115, C.R.S. 2016. As the Estate later
explained, the Pratts’ insurance company had conducted an
investigation of the Estate’s claim against Pratt Jr. in January
2015, and had determined that the property where the shooting
occurred was owned by the Pratts, not by Pratt Jr.1
¶ 10 The Pratts filed a motion for judgment on the pleadings and/or
for summary judgment, arguing that the two-year statute of
limitations had run and, therefore, the claim against them was time
barred.2 The Estate countered that, under C.R.C.P. 15(c), the
amended complaint related back to the original complaint.
¶ 11 The district court disagreed, concluding that the Pratts did not
have notice of the original lawsuit and, even if they had received
1 In their reply brief, the Estate contends that the location of the
shooting is a disputed issue of material fact. It does not appear
from the record on appeal that the Estate ever alerted the district
court to this supposed factual dispute, and we will not consider an
issue raised for the first time in a reply brief on appeal. People v.
Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990). In any event, we
are not persuaded that the location of the shooting is a material
fact; instead, the fact of consequence is that the Pratts owned the
property where the shooting occurred, a point the Pratts appear to
concede.
2 The statute of limitations for a negligence claim under the PLA is
two years. § 13-80-102(1)(a), C.R.S. 2016. The cause of action
accrues on the date of death. § 13-80-108(1), C.R.S. 2016.
3
notice, they would not have expected that, but for a mistake in
pleading, they would have been named as defendants in the
wrongful death action. Accordingly, the district court granted the
Pratts’ motion and entered judgment in their favor on the PLA
claim.
II. Discussion
¶ 12 On appeal,3 the Estate concedes that the statute of limitations
for a PLA claim had already expired when it filed its amended
complaint. But it contends that, under C.R.C.P. 15(c), the new
3 The Pratts correctly point out in their answer brief that the
Estate’s amended opening brief was filed one day late. Generally, it
is within the discretion of the court whether to dismiss or proceed
with an appeal when a brief is filed late. See C.A.R. 31(b);
Wilkinson v. Motor Vehicle Div., 634 P.2d 1016 (Colo. App. 1981).
The determination depends on the circumstances of the particular
case. State ex rel. Dep’t of Corr. v. Pena, 788 P.2d 143, 147 (Colo.
1990); Harris v. Reg’l Transp. Dist., 155 P.3d 583, 587 (Colo. App.
2006). “In rare cases, conduct in prosecuting an appeal is so
contrary to court rules and so disrespectful of the judicial process
and the participants therein that the right to appellate review is
forfeited.” Martin v. Essrig, 277 P.3d 857, 859-60 (Colo. App. 2011);
see also Warren Vill. Inc. v. Bd. of Assessment Appeals, 619 P.2d 60
(Colo. 1980) (appeal dismissed after opening brief filed months late);
Wilkinson, 634 P.2d at 1017 (appeal dismissed for failure to file an
opening brief after a fifteen-day extension). In our view, the eight-
hour delay in filing the amended opening brief does not implicate
the integrity of the judicial process and, as the parties have fully
briefed the issues, we choose to reach the merits of this case.
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claim against the Pratts related back to the date of the original
wrongful death action and was therefore timely.
A. Standard of Review
¶ 13 The Pratts’ motion was denominated a motion for judgment on
the pleadings pursuant to C.R.C.P. 12(c) or, alternatively, a motion
for determination of a question of law pursuant to C.R.C.P. 56(h).
By considering evidence outside the pleadings, the court treated the
motion as a motion under Rule 56. Shaw v. City of Colorado
Springs, 683 P.2d 385, 387 (Colo. App. 1984). We review a trial
court’s decision granting summary judgment de novo. Oasis Legal
Fin. Grp., LLC v. Coffman, 2015 CO 63, ¶ 30.
¶ 14 Summary judgment is appropriate only if the pleadings and
supporting documents demonstrate no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.
C.R.C.P. 56(c); Laughman v. Girtakovskis, 2015 COA 143, ¶ 8. In
determining whether summary judgment is proper, a court grants
the nonmoving party any favorable inferences reasonably drawn
from the facts and resolves all doubts in favor of the nonmoving
party. Cikraji v. Snowberger, 2015 COA 66, ¶ 16.
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¶ 15 We also review de novo a trial court’s interpretation of a rule of
civil procedure. City & Cty. of Broomfield v. Farmers Reservoir &
Irrigation Co., 239 P.3d 1270, 1275 (Colo. 2010).
B. Rule 15(c) and the Relation-Back Test
¶ 16 A new claim or defense asserted in an amended pleading
against the existing party or parties relates back to the date of the
original pleading so long as the new claim or defense arises out of
the same conduct, transaction, or occurrence. C.R.C.P. 15(c).
¶ 17 But when the amended pleading seeks to add a new party —
not simply a new claim against an existing party — Rule 15 adds
two additional requirements, both focused on notice to the new
party: first, the new party must have received such notice of the
action within the period provided by C.R.C.P. 4(m) for serving the
summons and complaint that he would not be prejudiced, and,
second, having received such notice, the new party must have
known or reasonably should have known that, but for a mistake
concerning the identity of the proper party, the action would have
been brought against him or her. Id.4
4 This provision of C.R.C.P. 15(c) concerns amendments “changing
the party against whom a claim is asserted . . . .” Like most courts
6
¶ 18 Under modern pleading rules, requests to amend should be
freely granted and liberally construed. Eagle River Mobile Home
Park v. Dist. Court, 647 P.2d 660 (Colo. 1982). Rule 15(c) is a
remedial tool that reflects a balance between this policy of liberally
permitting amendments and ensuring the reliable application of
statutes of limitation. Goodman v. Praxair, Inc., 494 F.3d 458,
467-68 (4th Cir. 2007);5 Chaplake Holdings, LTD v. Chrysler Corp.,
766 A.2d 1, 7 (Del. 2001). By focusing on notice to the new party
and the amendment’s effect on the new party, Rule 15(c) promotes
the administration of justice by allowing cases to be decided on the
merits, rather than on mere technicalities, Pan v. Bane, 141 P.3d
555, 559 (Okla. 2006), and, when appropriate, also gives
that have addressed the scope of the provision, we conclude that it
applies as well to amendments adding a party. See Lundy v.
Adamar of N.J., Inc., 34 F.3d 1173, 1192 n.13 (3d Cir. 1994)
(Becker, J., concurring in part and dissenting in part) (collecting
cases); see also 6A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1498.2 (3d ed. updated 2016) (“Many
courts have liberally construed the rule to find that amendments
simply adding or dropping parties, as well as amendments that
actually substitute defendants, fall within the ambit of the rule.”).
5 When a state rule is similar to a Federal Rule of Civil Procedure,
courts may look to federal authority for guidance in construing the
state rule. Benton v. Adams, 56 P.3d 81, 86 (Colo. 2002). The
federal rule has always been substantially similar to our rule and
the current version is nearly identical to C.R.C.P. 15.
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defendants “predictable repose from claims after the passage of a
specified time,” Goodman, 494 F.3d at 468-70.
¶ 19 In light of these interests, notice is considered the touchstone
of Rule 15(c) and is “strictly required.” Currier v. Sutherland, 215
P.3d 1155, 1161 (Colo. App. 2008), aff’d, 218 P.3d 709 (Colo. 2009);
see also Graves v. Gen. Ins. Corp., 412 F.2d 583, 585 (10th Cir.
1969) (the addition or substitution of parties who had no notice of
the original action is “not allowed”). Notice “serves as a yardstick
for evaluating whether or not amending the complaint will cause
the new defendant to suffer prejudice if he or she is forced to defend
the case on the merits.” Lacedra v. Donald W. Wyatt Det. Facility,
334 F. Supp. 2d 114, 129 (D.R.I. 2004). Thus, an amendment is
permitted to relate back only where a new party had timely
knowledge of the original action and the original complaint provided
fair and adequate notice of the new claim in the amended
complaint. See Currier, 215 P.3d at 1162.
C. Did The Pratts Have Notice of the Original Lawsuit Within the
Period Prescribed by C.R.C.P. 4(m)?
¶ 20 The Pratts concede that the Estate’s PLA claim arises out of
the same conduct, transaction, or occurrence as the negligence
8
claim asserted against Pratt Jr. in the original complaint. But they
argue that the Estate cannot satisfy elements two or three of the
relation-back test: notice within the prescribed period and
knowledge that they should have been defendants in the lawsuit.
We agree that the Estate failed to demonstrate a genuine factual
dispute regarding whether the Pratts had notice of the original
lawsuit within the prescribed time period.
¶ 21 An amendment will not relate back to the original complaint
under Rule 15(c) unless the new party receives notice of the
institution of the action within the period provided by Rule 4(m).6
Cf. Garcia v. Schneider Energy Servs., Inc., 2012 CO 62, ¶ 13 (under
Fed. R. Civ. P. 15, the phrase “within the period provided by Rule
4(m) for serving the summons and complaint,” means that the new
party must receive notice within a prescribed period after a
complaint is filed); see Singletary v. Pa. Dep’t of Corr., 266 F.3d 186,
194 (3d Cir. 2001) (this element of relation-back test requires both
notice and absence of prejudice).
6 Notice of “the institution of the action” means notice of the
lawsuit, not notice of the events giving rise to the cause of action.
Lundy, 34 F.3d at 1188 (Becker, J., concurring in part and
dissenting in part).
9
¶ 22 Under C.R.C.P. 4(m), the plaintiff must serve his summons
and complaint within sixty-three days after the complaint is filed.
The Estate filed its original complaint on September 16, 2014.
Thus, to satisfy the second element of the test, the Estate had to
show that, by November 18, 2014, the Pratts had notice of the
action against Pratt Jr.
¶ 23 The district court found that there was no evidence that the
Pratts had actual notice of the lawsuit before the end of the
limitations period on October 16, 2014.7 Though the district court’s
finding misconstrued the relevant date for purposes of Rule 15(c),
the Estate did not offer any evidence to establish that the Pratts
had actual notice of the complaint before November 18, 2014.
7 The district court determined that the Pratts first learned of the
lawsuit in January 2015, after Pratt Jr.’s lawyer contacted the
Pratts’ insurance company seeking a determination of whether the
Estate’s claim against Pratt Jr. was covered by the Pratts’ policy.
The scant evidence submitted to the district court supports the
court’s finding. On January 7, 2015, Pratt Jr.’s lawyer submitted a
claim and a copy of the complaint to the Pratts’ insurance company
for a determination of coverage. On January 19, 2015, having
completed its investigation, the insurance company responded to
Pratt Jr.’s lawyer with a denial of the claim, explaining that,
although the shooting incident appeared to have occurred on the
Pratts’ property, Pratt Jr. was not covered under the policy because
he was not a resident of the Pratts’ household.
10
¶ 24 Rather, the Estate argues that actual notice was not required
because notice to Pratt Jr. could be imputed to the Pratts under the
“identity of interest” doctrine. Parties have an identity of interest
when they are “so closely related in their business operations or
other activities that the institution of an action against one serves
to provide notice of litigation to the other.” Spiker v. Hoogeboom,
628 P.2d 177, 179 (Colo. App. 1981) (quoting 6 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1499, at 517
(1971)).
¶ 25 Ordinarily, the identity of interest doctrine is applied to
corporate parties: a parent and its subsidiary, for example, or
related corporations whose officers, directors, or shareholders are
substantially identical and who may have similar names or conduct
their businesses from the same offices. 6A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1499 (3d ed.
updated 2016); see also Brooks v. Isinghood, 584 S.E.2d 531, 543
n.10 (W. Va. 2003) (identity of interest usually present between
parent and subsidiary, related corporations, and co-executors of
estate).
11
¶ 26 Analogizing to cases of corporate misnomer, the Estate insists
that notice to Pratt Jr. could be imputed to Pratt Sr. because they
have the same name. But similarity of names alone is not
meaningful. In the corporate misnomer context, the similarity
matters because it emphasizes the interrelatedness of the corporate
entities and helps to explain any error in identifying the proper
party. The rationale does not apply to individuals: we do not
typically presume that two people who happen to have the same
name operate as one unit whose interests are aligned. And the
Estate has never alleged any misidentification of proper parties
based on the similarity of Pratt Jr. and Pratt Sr.’s names; rather, it
asserts that, based on the police reports, it mistakenly believed that
Pratt Jr. was the owner of the property where the shooting
occurred.8 Cf. Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010)
(plaintiff allowed to amend complaint to correctly identify carrier
liable for her injury as Costa Crociere, instead of Costa Cruise).
8In any event, the analogy to corporate misnomer cases does not
apply even superficially to Karen, who was also named in the
amended complaint as a defendant.
12
¶ 27 The Estate also points to evidence that Pratt Jr. visited his
parents frequently and that he and Pratt Sr. had common hobbies.
But these facts also fail to demonstrate an identity of interest.
¶ 28 To be sure, under certain circumstances, notice can be
imputed from a child to a parent (or vice versa) under an identity of
interest theory. Courts have found an identity of interest between
parents and their minor children who live at home. See Sadlowski
v. Benoit, No. 9801859, 2008 WL 2745157 (Mass. Super. Ct. June
26, 2008) (unpublished opinion) (parents and minor daughter had
identity of interest such that findings in prior lawsuit prosecuted by
parents were binding on daughter), aff’d, 917 N.E.2d 260 (Mass.
App. Ct. 2009); Sulzen v. Williams, 977 P.2d 497, 501 (Utah Ct.
App. 1999) (notice to parents could be imputed to minor children
living at the home where service was effectuated). Courts have also
recognized an identity of interest between a parent and child who
share a lawyer or are covered under the same insurance policy. See
Denver v. Forbes, 26 F.R.D. 614 (E.D. Pa. 1960) (minor daughter
living at home and sharing same insurer as parents was
substituted for mother after daughter was correctly identified as the
driver of the car involved in an accident); Phillips v. Gieringer, 108
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P.3d 889 (Alaska 2005) (notice imputed from father, who was the
owner of the car, to son, who was the driver, where both were
insured under the same policy); Pan, 141 P.3d 555 (minor daughter
lived at home and shared same attorney and insurance company as
her parents; thus, notice of the suit was imputed to her, as the
actual driver and proper defendant in a case arising out of traffic
accident).
¶ 29 In these cases, notice is attributed to the other person either
because the insurance company or the lawyer has a duty to
represent both parties’ interests, see, e.g., Phillips, 108 P.3d at
894-95, or because the legal fates of the parent and child are so
intertwined that they constitute one unit for purposes of the
litigation, see Sadlowski, 2008 WL 2745157, at *4; see also
Williams v. United States, 405 F.2d 234, 239 (5th Cir. 1968)
(because liability of the minor would give rise to a liability of the
parent, identity of interest between mother and child existed).
¶ 30 But here, Pratt Jr. was not a minor and he did not live with
the Pratts. Prior to his incarceration, he lived with his wife and
children in a separate residence. At the time he was served with
the summons and complaint, he was in the custody of the DOC.
14
Pratt Jr. and the Pratts were not represented by the same lawyer or
covered by the same insurance policy. And Pratt Jr. and the Pratts
did not share the same legal position with respect to the claims
asserted. See Penrose v. Ross, 71 P.3d 631, 636 (Utah Ct. App.
2003) (father and son did not have identity of interest where
defenses to claims were different and disposition as to father would
not affect claim against son).
¶ 31 Imputing notice to one person based on actual notice to
another is not the same as inferring that one person actually
notified the other. See Jehly v. Brown, 2014 COA 39, ¶¶ 17-18
(actual knowledge is distinct from imputed knowledge); see also In
re Comp. of Muliro, 359 Or. 736, 747-48, ___ P.3d ___, ___ (2016)
(imputed notice is not received by the party to whom it is imputed;
instead, imputed notice is attributed to a person because it was
received by someone with a duty to disclose). Though the Estate
claims to be making an imputation argument, in actuality it urges
us to assume from the circumstances that Pratt Jr. told his parents
(or at least Pratt Sr.) about the lawsuit.
¶ 32 On summary judgment, we ordinarily give the nonmoving
party the benefit of all favorable inferences reasonably drawn from
15
the undisputed facts. Brodeur v. Am. Home Assur. Co., 169 P.3d
139, 146 (Colo. 2007). But here, the record is devoid of any facts
concerning communications between Pratt Jr. and the Pratts from
October 23, 2014, the date Pratt Jr. was served with the complaint,
to November 18, 2014, the date by which the Pratts had to receive
notice of the lawsuit under Rule 15(c). Nor did the Estate claim
that disputed issues of fact regarding notice precluded summary
judgment, see Montgomery v. U.S. Postal Serv., 867 F.2d 900, 904
(5th Cir. 1989) (whether new party received notice within time
prescribed by Rule 15(c) is fact question), or seek additional time to
discover evidence concerning the Pratts’ notice of the lawsuit, see
Sundheim v. Bd. of Cty. Comm’rs, 904 P.2d 1337, 1352 (Colo. App.
1995) (“In order to avoid the precipitous and premature grant of
judgment against the opposing party, C.R.C.P. 56(f) affords an
extension of time to utilize discovery procedures to seek additional
evidence before the trial court rules on a motion for summary
judgment.”), aff’d, 926 P.2d 545 (Colo. 1996).
¶ 33 True enough, during the investigation by the Pratts’ insurance
company, Pratt Jr.’s wife reported that, at around the time of the
shooting, Pratt Jr. saw his parents every day. But the Estate’s
16
complaint alleged that Pratt Jr. was taken into custody on the day
of the offense, October 16, 2012, and the record does not disclose
any additional facts about Pratt Jr.’s contact with his parents
during the two years preceding service of the complaint. We cannot
reasonably infer that Pratt Jr. notified the Pratts of the lawsuit prior
to November 18, 2014, based solely on his frequent visits to their
home in 2012.
¶ 34 Accordingly, we agree with the district court that the Estate
failed to satisfy the notice element of Rule 15(c)’s relation-back test.
In light of this conclusion, we find it unnecessary to decide the
additional question of whether the Pratts should have known that,
absent a mistake, they would have been named as defendants in
the original action.9
III. Conclusion
¶ 35 We affirm the entry of summary judgment in favor of the
Pratts.
JUDGE DAILEY and JUDGE FURMAN concur.
9By affirming on this ground, we do not mean to suggest that the
district court erred in its conclusion that the original complaint
would not have put the Pratts on notice of a PLA claim to be
directed against them.
17