Van Schaackv.Fulenwider

Supreme Court of Colorado. EN BANCSep 10, 1990
798 P.2d 424 (Colo. 1990)

No. 88SC527

Decided September 10, 1990. Rehearing Denied October 9, 1990.

Certiorari to the Colorado Court of Appeals.

Brenman Raskin Friedlob Tenenbaum, P.C., Richard H. Goldberg, David H. Wollins, for Petitioners.

Holme Roberts Owen, Donald K. Bain, Richard G. Wilkins, for Respondents.


We granted certiorari in this case to determine the proper disposition of a pending C.R.C.P. 54(b) appeal when the appellants voluntarily comply with the trial court's order. In Van Schaack Holdings, Ltd. v. Fulenwider, 768 P.2d 740 (Colo.App. 1988), the court of appeals held that the parties, in effect, had settled the case in accord with the district court's order. Relying on the line of cases beginning with United States v. Munsingwear, Inc., 340 U.S. 36 (1950), the court of appeals dismissed the appeal as moot and vacated the lower court's judgment. We hold that there was no settlement, but under the circumstances of this particular case, the lower court's judgment was properly vacated when the appeal became moot. Accordingly, we affirm.

C.R.C.P. 54(b) provides, in pertinent part: "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

I

This case involves a dispute between petitioners, Van Schaack Holdings, Ltd. and H.C. Van Schaack, III (Van Schaack), and respondents, L.C. Fulenwider, Jr., L.C. Fulenwider, III, and L.C. Fulenwider, Inc. (Fulenwider), concerning a management agreement in which Fulenwider managed Box Elder Farms Company, a company jointly owned by Van Schaack and Fulenwider, in exchange for a percentage of gross income. Box Elder was formed in 1938 by Van Schaack and Fulenwider to manage nearly 40,000 acres of land located in Adams County. Its shareholders and directors consist entirely of members of the Van Schaack and Fulenwider families. The parties, who own equal portions of Box Elder stock, historically entered into management agreements in which Fulenwider was paid to manage the property. Each management contract was effective for 10 to 12 years and was then replaced by a new agreement.

In the early agreements, Fulenwider was to receive 10% of the price of any land sold. In the 1962 renewal of the management agreement this percentage was modified so that Fulenwider would receive 8% of the gross sales price. The following provision was also added: "In the event any property of Box Elder shall be taken through condemnation, Fulenwider shall receive from Box Elder a fee equal to 8% of the gross award made to Box Elder on account of the taking of such property." The parties subsequently incorporated this provision into their 1972 renewal agreement, but increased Fulenwider's share to 10% of the gross award.

In 1982, shortly before the 1972 renewal agreement was due to expire, the parties became aware that a portion of Box Elder property might be condemned by the City and County of Denver for construction of a new airport. Based on the potential condemnation of a large tract by Denver, Van Schaack did not think it fair to include, in the new agreement, those provisions which granted Fulenwider a percentage of the proceeds of any land sold or condemned. Fulenwider, however, thought that the parties should renew the same management agreement that had been operative for decades.

In October 1982, L.C. Fulenwider, Jr. and L.C. Fulenwider, III, as officers of Box Elder, signed a new management agreement with L.C. Fulenwider, Inc. The new agreement retained the provision that, in the event of a condemnation, Fulenwider would receive 10% of the gross award. Van Schaack objected to the inclusion of any condemnation clause in the renewal agreement, and, at the 1983 annual meeting of Box Elder, voted against ratifying the 1982 renewal of the management contract. Despite Van Schaack's opposition, the board of directors approved the renewal.

Thereafter, in October of 1985, Van Schaack brought this action against Fulenwider. The amended complaint consists of seven counts or claims for relief, all arising from Fulenwider's actions in causing Box Elder to enter into the 1982 management agreement. The claims are as follows: (1) derivative claim for relief for breach of fiduciary duty; (2) derivative claim for relief for constructive fraud; (3) derivative claim for relief requesting a declaratory judgment; (4) derivative claim for relief requesting rescission of the management contract; (5) derivative claim for relief requesting the imposition of a constructive trust; (6) direct claim for relief for breach of fiduciary duty; and (7) a request for dissolution of the Box Elder corporation.

Immediately after filing suit, Van Schaack requested that a hearing on the dissolution issue be expedited because condemnation of a substantial portion of the airport land was imminent, and tax considerations mandated that the corporation be dissolved before condemnation proceedings commenced. Expedited discovery was ordered, and a hearing on the dissolution claim took place four months after Van Schaack's request. The remaining six claims were scheduled to be tried a year later.

On March 7, 1986, after a five-day trial on the dissolution issue, the trial court ruled that the 1982 agreement unilaterally executed by Fulenwider was a product of self-dealing, was unlawfully adopted by the board of directors, was not ratified by Box Elder shareholders, and was unfair. Furthermore, the court found that the agreement was illegally oppressive, and that payments under it constituted corporate waste warranting entry of a dissolution order. The trial court certified the dissolution order and findings as a final judgment under C.R.C.P. 54(b). The trial court also entered an order appointing L.C. Fulenwider, III as receiver to oversee the dissolution of Box Elder.

Fulenwider obtained a stay of the dissolution order and appealed the trial court's orders. However, while the appeal was pending, Fulenwider signed a Statement of Intent to Dissolve By Written Consent of Shareholders (Statement of Intent) and Articles of Dissolution, which were filed with the Colorado Secretary of State. Fulenwider also filed a motion to lift the stay. Thereafter, the trial court discharged the receiver.

Case No. 86CA0401, which challenged the district court's dissolution order, and No. 86CA0585, which challenged the appointment of a receiver, were consolidated by the court of appeals. Subsequently, the trial court ordered Fulenwider to pay Box Elder's attorney fees and fees for work done by the corporation's accountant. Fulenwider appealed these orders in Nos. 86CA1335 and 86CA1649. The court of appeals reversed the district court's imposition of legal fees upon Fulenwider, but affirmed the order requiring Fulenwider to pay Box Elder's accounting costs. These issues, however, are not before this court. The case before us concerns only the order of dissolution and the order appointing a receiver.

Van Schaack then filed a motion to dismiss the appeals on the ground of mootness. Fulenwider objected, claiming that the trial court's findings remained as disputed issues on appeal because they could affect the remaining claims if left unreviewed. The court of appeals denied the motion on June 16, 1986. Four months later, Fulenwider filed its own motion asking the court to dismiss the consolidated appeals and to vacate the trial court's orders upon which the appeals were based. This motion was denied by the court of appeals with leave to address the mootness issue in the briefs. After oral argument, the court of appeals dismissed the appeals because they were moot and vacated the lower court's judgment. Van Schaack, 768 P.2d at 741. We then granted certiorari to review the court of appeals judgment.

II

We first determine if the appeals became moot. A case is moot when a judgment, if rendered, would have no practical legal effect upon the existing controversy. Barnes v. District Court, 199 Colo. 310, 607 P.2d 1008 (1980). The general rule is that when issues presented in litigation become moot because of subsequent events, an appellate court will decline to render an opinion on the merits of an appeal. See Steffel v. Thompson, 415 U.S. 452, 459 n. 10 (1974); Humphrey v. Southwestern Dev. Co., 734 P.2d 637 (Colo. 1987). We have held that when the appellant complies with a lower court's judgment pending appeal, mooting the question on appeal, the appeal should be dismissed. Blades v. Sanders, 158 Colo. 64, 404 P.2d 520 (1965); Cameron v. Carroll Co., 138 Colo. 432, 334 P.2d 748 (1959). See also Stenback v. Front Range Financial Corp., 764 P.2d 380 (Colo.App. 1988); 13A Wright, Miller Cooper, Federal Practice and Procedure § 3533.2 (2d ed. 1984).

We agree that Fulenwider's challenges to the dissolution order and to the order appointing a receiver were mooted during appeal. By the time the cases were heard by the court of appeals, the corporation was in the process of dissolution. Thus, any determination as to the propriety of the dissolution order or the order appointing a receiver would have no effect. Having concluded that the appeals were moot, we now determine whether the court of appeals applied the proper procedure by vacating the trial court orders.

III

Whether an appellate court should vacate a lower court's judgment upon a determination that an appeal is moot is a matter of procedure which is not expressly addressed by the Colorado Rules of Civil Procedure or the Colorado Appellate Rules. Because our rules do not provide specific guidance, we determine the proper appellate procedure under our appellate authority and our authority of "general superintending control" over inferior courts. Colo. Const. art. VI, § 2. While we are not bound by the federal law on this matter, federal case law is useful as guidance.

When a case becomes moot on appeal, the usual practice is to dismiss the appeal and vacate the lower court's judgment. Deakins v. Monaghan, 484 U.S. 193 (1988); Great W. Sugar Co. v. Nelson, 442 U.S. 92 (1979); United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Duke Power Co. v. Greenwood County, 299 U.S. 259 (1936); Warren v. People ex rel. Stewart, 144 Colo. 57, 354 P.2d 1021 (1960). In Munsingwear, the Court indicated that if a case is mooted on appeal, it is "the duty of the appellate court" to "reverse or vacate the judgment below and remand with a direction to dismiss." Id. at 39-40. The Court reasoned that this practice "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance." Id. at 40.

Some courts, however, have recognized an exception to this procedure when the appealing party voluntarily takes an action which renders the appeal moot. This exception was created to prevent a party from mooting its appeal for strategic reasons, so as to vacate the lower court's judgment. The rationale most often cited for this exception was stated in Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 721 (9th Cir. 1982):

"If the effect of post-judgment settlements were automatically to vacate the trial court's judgment, any litigant dissatisfied with a trial court's findings would be able to have them wiped from the books. `It would be quite destructive to the principle of judicial finality to put such a litigant in a position to destroy the collateral conclusiveness of a judgment by destroying his own right to appeal' . . . . That possibility would undermine the risks inherent in taking any controversy to trial and, in cases such as this one, provide the dissatisfied party with an opportunity to relitigate the same issues."

(Citation omitted.)

In Ringsby, the parties to the litigation settled their differences and agreed that the judgment of the district court should be vacated and the pending appeal dismissed. The Ninth Circuit dismissed the pending appeal as moot but declined to vacate the judgment. The court found "the distinction between litigants who are and are not responsible for rendering their case moot at the appellate level persuasive." Id. at 721.

The court's refusal to vacate the lower court's judgment in Ringsby has been criticized by both courts and commentators. See Nestle Co. v. Chester's Market, Inc., 756 F.2d 280 (2d Cir. 1985); 13A Wright, Miller Cooper, Federal Practice Procedure § 3533.10, 431-2 (2d ed. 1984).

In United States v. Garde, 848 F.2d 1307 (D.C. Cir. 1988), the Nuclear Regulatory Commission (NRC) issued a subpoena to a group organized to promote nuclear safety, requesting information on certain safety problems and the names of the whistleblowers who reported the problems. The district court refused to enforce the subpoena but outlined a procedure by which the NRC could get almost all the information requested. After appealing the district court's refusal to enforce the subpoena, the NRC complied with the alternative procedure for obtaining the information. It then requested that the appeal be dismissed as moot and that the lower court's judgment be vacated. The court of appeals refused to vacate the judgment to prevent the NRC from gaining an unfair advantage by complying with district court's order so as to moot the appeal. See Wisconsin v. Baker, 698 F.2d 1323 (7th Cir. 1983) (court refused to apply Munsingwear when losing party deliberately mooted the question on appeal so as to destroy the preclusive effect of the judgment below); see also Constangy, Brooks Smith v. NLRB, 851 F.2d 839 (6th Cir. 1988).

Both Constangy and Garde relied on Karcher v. May, 484 U.S. 72 (1987), as authority for the proposition that Munsingwear does not apply when the appeal becomes moot through the act of a party. However, it is not clear that Karcher was intended to create such an exception. In Karcher, the New Jersey legislature enacted a "moment of silence" statute. Because no one would defend the statute, Karcher, as Speaker of the New Jersey General Assembly, and Orechio, as President of the New Jersey Senate, intervened on behalf of the legislature. After the district court declared the statute unconstitutional and the court of appeals affirmed, Karcher and Orechio were removed from their positions. The new Speaker and President then informed the Supreme Court that they were "withdrawing the legislature's appeal." Upon dismissing the appeal for want of jurisdiction, the Court held that its procedure under Munsingwear would not apply. The Court emphasized that the controversy did not become moot due to happenstance. Rather, the controversy ended when the legislature declined to pursue its appeal. Thus, Karcher did not involve a case which became moot upon appeal. Significantly, the persons who succeeded to the legislative positions of the previous parties declined to pursue the appeal. Thus there, the appeal was abandoned, whereas here, no voluntary relinquishment of the right to appeal has taken place. See Long Island Lighting Co. v. Cuomo, 888 F.2d 230, 234 n. 4 (2d Cir. 1989). However, because we find it inappropriate to deviate from Munsingwear under the facts of this particular case, we need not address the effects of Karcher on the mootness doctrine.

Several courts have decided that the Ringsby exception does not apply when the record indicates that the party's actions were not deliberately taken to avoid the preclusive effect of the lower court's judgment. See Northwest Pipeline Corp. v. FERC, 863 F.2d 73 (D.C. Cir. 1988) (because appealing party opposed finding of mootness and sought resolution of case on merits, not an instance where the losing party deliberately mooted appeal to avoid precedential effect of lower court's ruling, thus exception to Munsingwear inapposite); Kitlutsisti v. Arco Alaska, Inc., 782 F.2d 800 (9th Cir. 1986) (because there was no indication that appellants mooted the case to avoid the preclusive effect of the district court's judgment, and because it was unlikely that the appellants' action would be rescinded so as to renew the controversy after judgment vacated, Ringsby exception inapplicable).

Here, it is clear from the record that Fulenwider did not deliberately manipulate the appellate process in order to obtain a vacation of the lower court's judgment. Rather, Fulenwider's agreement to the dissolution of Box Elder was made solely in response to time constraints imposed by the tax laws.

From the very beginning, tax considerations have controlled the parties' actions in connection with this dissolution issue. Count VII of the amended complaint stated that dissolution was requested because it "would result in substantial tax savings to Box Elder and its shareholders." Immediately after filing suit, Van Schaack requested that the dissolution issue be expedited because condemnation was imminent, and

"Pursuant to provisions of the Internal Revenue Code, the Van Schaack Group and Fulenwider Group each stand to gain tax savings of millions of dollars by dissolving Box Elder before Denver acquires any Box Elder property . . . provided dissolution is completed within one month and before condemnation occurs. If dissolution is not granted and so completed prior to such acquisition or substantive negotiations leading thereto, the parties will each be faced with substantial capital gains taxation on the proceeds of sale or condemnation."

Based on "the exigencies created by the Internal Revenue Code," discovery and the dissolution hearing were expedited.

The trial court's order of dissolution was expressly drawn to comply with the applicable Internal Revenue Code sections. Fulenwider's request that the dissolution issue be certified under C.R.C.P. 54(b), and that the order be stayed, was also motivated by the time constraints imposed by the tax consequences. Fulenwider's motion contained the following statement:

"Defendants will seek an expedited appeal and, in accordance with the letter of James W. Spensley attached hereto, no taking of property for the new airport by the City and County of Denver is planned until July 1986. Therefore, the risk of adverse tax results feared by plaintiffs will not occur if the dissolution of Box Elder Farms Co. is delayed pending an expedited appeal."

Fulenwider filed its appeal the day after the trial court certified the dissolution order as final. On March 31, 1986, the court of appeals stayed the trial court's dissolution order, but denied Fulenwider's request for an expedited appeal. This refusal to expedite the appeal almost guaranteed that the dissolution issue would not be decided before condemnation proceedings were instituted. On May 21, 1986, Fulenwider signed the Statement of Intent and Articles of Dissolution, which were filed with the Colorado Secretary of State. Fulenwider also filed a motion to lift the stay.

In its response to Van Schaack's motion to dismiss, Fulenwider clearly stated its reasons for acquiescing in the dissolution of Box Elder:

"Subsequent to the filing of these appeals . . . appellants obtained a ruling from the Internal Revenue Service indicating that L.C. Fulenwider, Inc. would, along with appellees, be able to take advantage of a section 333 liquidation. . . . Since the condemnation process has begun in earnest, the risk of adverse tax consequences has substantially increased. Accordingly, on May 21, appellants moved this Court to lift its Stay . . . and the Company filed its Statement of Intent to Dissolve with the Secretary of State."

On this basis, it is clear that Fulenwider did not agree to the dissolution so as to moot the appeal and vacate the lower court's decision. Rather, a choice had to be made immediately, and no time was left to wait for a decision on appeal. Moreover, in light of the impending condemnation, Fulenwider was placed in the position of giving up its appeal or facing liability on its supersedeas bond if the trial court's judgment was affirmed after that narrow window of opportunity for dissolution had passed. Although Fulenwider's actions in complying with the dissolution order were "voluntary" within the strict sense of the word, it is clear that this is not the type of deliberate action contemplated by those cases which create an exception to Munsingwear when a party voluntarily moots its appeal.

Both the Munsingwear rule and any possible exception to that rule are equitable in nature. National Union Fire Ins. Co. v. Seafirst Corp., 891 F.2d 762 (9th Cir. 1989). Given the history of this case, it is inequitable to hold Fulenwider to the unreviewed findings of self-dealing and waste which, if allowed to stand, will effectively determine the outcome of the six remaining claims.

Further, the discovery process and trial preparation for a very complex case were condensed into a short period of time. While such procedures may have been necessary to prepare for the limited issue of dissolution, it is unreasonable to deprive Fulenwider of the chance to defend itself after full discovery and adequate preparation. See Restatement (Second) of Judgments § 28(5)(c) (1982) (relitigation of an issue is not precluded when "the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action").

It is also clear from the record that both the parties and the trial court intended to limit the hearing and the court's findings solely to the dissolution issue. At trial, the following conversation took place between the court and counsel for Van Schaack:

"THE COURT: When I decide this, is this going to dispose of the lawsuit or is this just part?

"MR. GOLDBERG: Just part of the lawsuit because we do have other claims for mismanagement and damages that are set for a trial in February of 1987.

"THE COURT: It does seem like kind of a waste to spend a week on this and not dispose of the lawsuit, doesn't it?

"MR. GOLDBERG: Well, we don't think so, Your Honor, because we believe if dissolution can be granted at this point in time the tax benefits to the parties will be maximized versus having dissolution entered in 1987.

"THE COURT: My question was simply why you couldn't try the whole thing this week instead of putting some of it off till 1987.

"MR. GOLDBERG: Well, it wasn't set for that and we still have additional discovery to do on the matter of damages."

The trial court later made it clear that its findings applied only to the dissolution claim. After outlining the history of the dispute, the court stated "[t]here are seven claims in the complaint filed by the plaintiffs in this case. We are concerned in this hearing with only the seventh claim for relief, and that is where the plaintiffs seek to have the corporation dissolved." The court then proceeded to make the disputed findings of fact. In light of the manifested intent of the parties and the court to limit the expedited hearing and findings to the dissolution issue, it would now be unfair to give such findings preclusive effect.

Van Schaack also took the position on appeal that the trial court's findings would have no preclusive effect on the remaining issues. In its motion to dismiss the appeals as moot, Van Schaack stated:

"The findings of fact and conclusions of law of the District Court's Order presently under appeal are no more binding upon it than in a situation where findings of fact and conclusions of law would be made in a preliminary injunction hearing for the purposes of a permanent injunction proceeding. Furthermore, there is no danger of res judicata or collateral estoppel arising from the District Court's Order because there is no second action to which it is sought to be applied."

In response to Fulenwider's contention that the appeals were not moot because the trial court's findings of misfeasance would have a preclusive effect on the remaining claims, Van Schaack reiterated its position that:

"[The] Order is not binding upon the District Court in the trial of the damage and equitable claims scheduled for April 20, 1987. The District Court hearing was conducted only on the claim of dissolution of the Company. The order was akin to preliminary injunctive findings that are not final and binding upon the same court in a permanent injunction proceeding or upon trial of related damage claims. . . . As a result, the Order governs the dissolution claim and nothing else.

. . . . "As a result, dismissal of these consolidated appeals is warranted since the doctrine of collateral estoppel does not apply . . . ."

Only after Fulenwider submitted its own motion to dismiss the appeals and vacate the lower court's judgment based on Munsingwear did Van Schaack argue, for the first time, that the trial court's judgment was preclusive on the liability issue in the remaining claims for relief.

Because Van Schaack has consistently taken the position that the trial court's findings were limited solely to the dissolution issue and would not control the issue of liability on the remaining claims, it is now improper to give such findings preclusive effect. In effect, based on its earlier inconsistent position, Van Schaack has waived the right to assert that the findings are preclusive upon trial of the remaining claims.

Courts have also declined to apply the Ringsby exception when the action taken by the party which moots the appeal, by its own terms, also prevents relitigation of the issue. Harrison Western Corp. v. United States, 792 F.2d 1391 (9th Cir. 1986); see also Kitlutsisti v. Arco Alaska, Inc., 782 F.2d 800 (9th Cir. 1986). Here, the decision to dissolve a corporation cannot be undone. Therefore, the dissolution issue can never be relitigated.

We also rely on our opinion in Warren v. People ex rel. Stewart, 144 Colo. 57, 354 P.2d 1021 (1960), to support our decision. There, the appellant, who was the subject of a quo warranto proceeding, resigned from office voluntarily while the appeal was pending. The right of the appellant to hold the office of county commissioner was the only issue before the court. Holding that the appeal was moot, we remanded the cause to the trial court with directions to vacate the judgment. We see no reason that this course of action should not be taken here.

Based on the equities in this case, we decline to reverse the court of appeals determination that the trial court's judgment should be vacated. We note that our decision does not mandate that the evidence which has already been presented must be reproduced. This remains within the trial court's discretion. Having heard the testimony already, the court is free to limit the presentation of evidence to that which was not produced before. We simply hold that the trial court's former findings are not binding on the remaining issues. This gives the trial court flexibility and allows the findings to be reviewed on appeal, if necessary.

IV

The court of appeals held that, while the appeal was pending, the parties voluntarily entered into a settlement which resulted in the dissolution of Box Elder. The court concluded that "[w]hen a judgment is made part of a settlement agreement, it is merged in and superseded by the settlement agreement, and is thereafter extinguished." Van Schaack, 768 P.2d at 743 (citing Young v. Carpenter, 757 P.2d 148 (Colo.App. 1988)).

We are not persuaded that Fulenwider's decision to comply with the trial court's dissolution order constituted a settlement. Compliance with a judicial order does not constitute a settlement. A settlement results from a meeting of the minds and an exchange of sufficient consideration. Cross v. District Court, 643 P.2d 39 (Colo. 1982); H.W. Houston Constr. Co. v. District Court, 632 P.2d 563 (Colo. 1981). We find from the record no meeting of the minds occurred with regard to the scope of the alleged compromise. Further, no consideration was exchanged because Fulenwider was simply complying with a preexisting duty. Both the Statement Of Intent and the Articles of Dissolution, which were filed with the Colorado Secretary of State, specifically stated that the dissolution occurred "pursuant to order of the Denver District Court." Nor does it appear that Van Schaack made any concessions which would support a finding that consideration had been exchanged. Since the parties did not enter into a settlement agreement, no judgment could be merged into or superseded by it and thereby be extinguished.

The judgment of the court of appeals is affirmed, and the case is remanded to the court of appeals with instructions to remand the case to the district court for trial on the remaining issues.

JUSTICE MULLARKEY dissents. JUSTICE QUINN and JUSTICE VOLLACK join in the dissent.