Opinion
No. 74-075
Decided October 8, 1974.
Class action against developer of subdivision premised on alleged failure of developer to provide certain utilities and services to purchasers of lots within the subdivision. From judgment awarding plaintiffs damages and providing formula for lot owners who were not members of class to participate in benefits of judgment, both parties appealed.
Affirmed in Part, Reversed in Part.
1. PRACTICE AND PROCEDURE — Amendment of Prayer — Increase — Item of Damages — Denial of Motion — Not — Abuse of Discretion. Where in class action against the developer of subdivision, the plaintiffs were awarded $10,000 for installation of telephone service, which was the amount prayed for by them relative to that item, and where the evidence supports the conclusion of the trial court that evidence presented as to the cost of telephone installation was conflicting and inexact, there was no abuse of discretion in the court's denial of plaintiffs' motion to amend the pleadings such that their claim for damages for this item would have been $55,000 rather than $10,000.
2. Pre-trial Order — Not Operate — Entitle Plaintiffs — Recover — In Excess — Prayer of Complaint. A pre-trial order must fully recite any action taken relative to amendments allowed to the pleadings; thus where plaintiffs did not request any amendments to the pleadings at the pre-trial conference relative to telephone damages issue, and where there was no action taken or order entered which affect plaintiffs' prayer for relief, pre-trial order did not operate to entitle plaintiffs to recover an amount in excess of the $10,000 sought for this item of damages in the complaint.
3. JUDGMENT — Class Action — Trial Court — Broad Discretion — Administer Relief — Excluded Members — May Not Participate — Judgment Rendered. In class actions the courts have broad discretion to shape and administer judicial relief; however, once excluded from a class action, such excluded members are not to be included within any judgment of the court whether adverse or favorable; therefore, in class action, it was error for the court to have included in its judgment provisions which attempted to establish terms by which the non-class members might participate in the benefits of the judgment rendered.
Appeal from the District Court of the County of La Plata, Honorable Byron V. Bradford, Judge.
William L. Watts, for plaintiff-appellants cross-appellees.
Maynes Anesi, Frank J. Anesi, for defendant-appellee cross-appellant.
This is a class action by plaintiffs on behalf of themselves and other persons similarly situated, who purchased from defendant, Arizona Columbine Ranch, Inc., certain building lots in a subdivision known as Lake Purgatory Unit 1, La Plata County, Colorado. Plaintiffs alleged that defendant, as developer of the subdivision and vendor of the lots, represented that certain utilities and services would be available to purchasers of the lots. Plaintiffs sought injunctive relief to prohibit defendant from transferring certain assets, sought general and special money damages for defendant's failure to provide a water system, electric service, telephone service, and sought judgment requiring defendant to pay taxes and perform certain other obligations. Some of these matters were settled prior to trial. The remaining issues were tried to the court, which rendered a judgment for plaintiffs on all issues including: A money judgment of $35,000 for general damages; $119,100 damages for failure to provide a water system; $10,000 damages for defendant's failure to provide for telephone service, and expert witness fees and costs. The court also set up a formula under which lot owners who were not members of the class could join the entity to be set up by the class members to provide the services in question.
Plaintiffs appeal from that part of the judgment which limited their recovery to $10,000 damages for defendant's failure to provide for telephone service. Defendant cross-appeals from that part of the judgment which sets out the formula for the inclusion of lot owners who are not members of this class action. Initially, defendant also cross-appealed from that portion of the judgment which determined that this was a proper class action. However, at oral argument defendant conceded that this was a proper class action, and therefore this issue will not be considered in this opinion.
I.
It is undisputed that defendant was obligated at its expense to have telephone lines extended to lot lines upon request of the owners of individual lots. After extensive testimony as to the cost of installation of such service, the court determined that plaintiffs were entitled to $10,000 which was the amount prayed for by plaintiffs in their amended complaint relative to this item.
Plaintiffs content that the court erred in denying their motion, made at the conclusion of the evidence, to amend their pleadings for damages from $10,000 to $55,000 on the telephone issue. Plaintiffs allege that $55,000 was the estimated cost of the installation of the telephone system, as testified to by a representative of the telephone company, that plaintiffs were entitled to amend their pleadings to conform to the evidence in accordance with C.R.C.P. 15(b), and further that plaintiffs were entitled to a judgment of $55,000 instead of $10,000. We do not agree.
From plaintiffs' witnesses it was determined that initially the telephone company had given defendant a cost figure of $7,200. Subsequently, a figure of $23,000 was submitted as the cost of a buried cable system. At trial, a telephone company representative testified that he had visited the site the day before the trial and that the estimated cost of installation would be $55,000, if the company put in its own poles. However, the witness testified that in most subdivisions, including the one in question, the telephone company would normally coordinate its design with the electric company and install its lines on the electric power poles, reducing the expense of installation. The witness was unable to estimate what the reduced cost would be.
[1] In denying plaintiffs' motion to alter or amend the judgment and in denying plaintiffs' renewed motion to amend their pleadings, the court held that:
"The evidence as to the cost of telephone installation was conflicting, and on each occasion when testimony was presented the cost of that installation exorbitantly went up. No exact figures were ever introduced. The testimony was conditional."
The evidence supports this conclusion of the trial court and we find no abuse of discretion in the court's denial of plaintiffs' motion to amend the pleadings. Board of Commissioners v. Bullock, 122 Colo. 218, 220 P.2d 877; Haefeli v. Ahlstrand, 101 Colo. 296, 73 P.2d 1378.
As an additional argument on this issue of limiting damages, plaintiffs contend that the pretrial order by its terms and under C.R.C.P. 16(c) supersedes the pleadings. We find no merit in this argument.
[2] The pretrial order set forth as one of the issues to be determined at trial, "What are the damages to the plaintiffs, if any?" Plaintiffs take the position that since this statement of issue did not place any limit on damages, plaintiffs would be entitled to recover any amount supported by the evidence, even superseding plaintiffs' claimed limit of $10,000. Plaintiffs cite no authority for this position and we find none. A pretrial order must fully recite any action taken relative to amendments allowed to the pleadings. C.R.C.P. 16(c). Plaintiffs did not request any amendments to the pleadings at the pretrial conference relative to the telephone damages issue, and there was no action taken or order entered which affected plaintiffs' prayer for relief.
II.
Defendant's cross-appeal concerns only that part of the judgment as it relates to the property owners who are not members of this class action. The property owners who are not members of the class receiving the benefit of this judgment consist of those owners of lots who received notice and voluntarily withdrew from the action and the defendant itself, which is still the owner of unsold lots. The judgment requires the plaintiffs to set up an entity which would in turn receive the cash judgment and would be responsible for the installation of the water and telephone systems and render certain services to the lot owners. Under the terms of the judgment each member of the class is to have a membership in the entity, and property owners who are not members of the class would be entitled to obtain a membership by paying an amount equal to a proportionate share of its assets.
[3] In class actions the courts have broad discretion to shape and administer judicial relief. Miller, Problems in Administering Judicial Relief in Class Actions Under Federal Rule 23(b)(3), 54 F.R.D. 501. However, once excluded from a class action such excluded members are not to be included within any judgment of the court, whether adverse or favorable. See C.R.C.P. 23(c)(2)(B). Therefore, it was error for the court to have included in its judgment the provision which attempts to establish the terms with which the non-class members must comply to obtain a membership in the entity.
That portion of the judgment purporting to affect any rights of the non-class members relative to membership in the entity is reversed and the cause remanded with directions to strike that portion of the judgment. In all other respects the judgment is affirmed.
JUDGE RULAND and JUDGE KELLY concur.