Arnold v. Anton Cooperative Ass'n

Opinion by Judge TERRY. In this appeal, we consider the subject matter jurisdiction of Colorado courts in a suit alleging discrimination in a place of public accommodation under part 6 of the Colorado Civil Rights Act, sections 24-84-601 to - 605, C.R.S.2010(CRA). We conclude that district courts and county courts have concurrent jurisdiction over claims brought under part 6 of the CRA, and that the trial court therefore erred in dismissing the CRA claim of plaintiff, April Arnold. We also conclude, however, that the trial court did not err in dismissing Arnold's contract claims before trial. Arnold appeals the trial court's judgment against her and in favor of defendants, Anton Cooperative Association (the Association), Chester Kenney, and Louanne Kenney. Arnold also appeals the orders awarding costs and fees to defendants. We affirm in part, reverse in part, and remand with directions. I. Background Arnold is a member of the Association, which operates a general store. Chester Kenney is the Manager of the Association, and Louanne Kenney is his wife and an employee of the Association. In May 2006, the Association sent Arnold a letter informing her that the Association's board had "decided that the best possible outcome under the cireumstances would be for [Arnold] to not conduct business at the Anton coop." The parties do not contest that this notice meant that Arnold could no longer enter or purchase from the Association's store. Arnold filed a discrimination claim against the Association with the Colorado Civil Rights Division (CCRD). After investigating Arnold's claim, CCRD issued a notice to her stating that (1) it lacked probable cause to support Arnold's claim of discrimination, and (2) if she desired, she could pursue her claim in district court. Arnold filed suit against the Association in Washington County District Court. The complaint alleged the following facts: © For approximately nine years, Arnold was a member of and had done business with the Association, and had purchased various materials and supplies at the Association's store for both business and personal use. e The Association's store "is the only place within 30 miles to purchase many necessities." e Louanne Kenney told Arnold that she "did not want to do business with" Arnold because Chester Kenney was seeking to have a relationship with Arnold. From that point on, the Kenneys made it difficult for Arnold to do business at the store, including encouraging employees to treat her in a rude manner and to decline to perform services for her. e These actions by the Kenneys culminated in the May 2006 letter indicating the Association would no longer do business with Arnold. The complaint contained three claims for relief, alleging that (I) the Association's store was a place of public accommodation — 103 — and the Association had discriminated against Arnold because of her gender and (unspecified) disability, in violation of the CRA; (2) the Association had breached the terms of its membership contract with her; and (8) defendants Chester and Louanne Kenney had intentionally interfered with the membership contract. The Association's answer denied the material allegations underlying Arnold's claims. Its counterclaim alleged that, on various occasions while Arnold was in the store, she had been disruptive, lost self-control, raised her voice, used an intimidating manner, and made unreasonable demands in the presence of the Association's employees, board members, and sometimes other patrons, and that board members and employees were intimidated by and fearful of her. It also alleged that Arnold had presented two checks from a closed bank account in satisfaction of a debt owed to the Association. Based on these allegations, the Association sought a permanent injunction to prevent Arnold from entering or using the Association's facilities. Defendants filed pretrial motions to dismiss Arnold's claims. The trial court granted the motion to dismiss Arnold's CRA claim, reasoning that section 24-34-608, C.R.8S.2010, vests county courts with jurisdiction over public accommodation claims under the CRA, and that district courts therefore lack jurisdiction over such claims. Shortly before trial was to begin, the court dismissed Arnold's other two claims on the ground that Arnold had not identified any enforceable contractual right to recovery. The Association later voluntarily dismissed its counterclaim. II. Subject Matter Jurisdiction Arnold argues that the trial court erred in dismissing her claim for discrimination in a place of public accommodation under part 6 of the CRA. We agree. A. Standard of Review When reviewing motions to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1), we defer to the trial court's factual findings unless they are so clearly erroneous as to find no support in the record, but we review the trial court's legal conclusions de novo. Levine v. Katz, 192 P.3d 1008, 1012 (Colo.App.2006). "Statutory construction is a question of law we review de novo." Specialty Restaurants Corp. v. Nelson, 231 P.3d 393, 397 (Colo.2010). To reasonably effectuate the General Assembly's intent, a statute must be read and considered as a whole. In re Marriage of Ikeler, 161 P.3d 663, 666-67 (Colo.2007). "We will interpret a statute to give consistent, harmonious, and sensible effect to all its parts." Id. at 667. "If separate clauses within a statute may be reconciled by one construction but would conflict under a different interpretation, the construction which results in harmony rather than inconsistency should be adopted." People v. District Court, 713 P.2d 918, 921 (Colo.1986). B. Jurisdiction Under Section 24-34-6083 The trial court concluded that only the county courts have jurisdiction to hear public accommodation claims under the CRA. Defendants now contend that claims for damages under the public accommodation provisions contained in part 6 of the CRA may only be brought in county court, and that because Arnold did not seek relief other than damages, her claim could not be brought in district court. Both the trial court and defendants relied on the language of section 24-34-603, which states: The county court in the county where the offense is committed shall have jurisdiction in all civil actions brought under this part 6 to recover damages to the extent of the jurisdiction of the county court to recover a money demand in other actions. Either party shall have the right to have the cause tried by jury and to appeal from the judgment of the court in the same manner as in other civil suits. We disagree that this provision precludes jurisdiction in the district courts to hear claims of any kind under part 6, let alone claims for damages. We begin our analysis by reference to article VI, section 9 of the Colorado Constitution. As relevant here, that section states, "Itlhe district courts shall be trial courts of record with general jurisdiction, and shall — 104 — have original jurisdiction in all civil ... cases, except as otherwise provided herein." While the General Assembly has the power to limit the courts' jurisdiction, "no statute will be held to so limit court power unless the limitation is explicit." In re A. W., 637 P.2d 366, 373-74 (Colo.1981). The CRA contains no explicit limitation of jurisdiction to the county courts. On the contrary, reading the disparate parts of the CRA harmoniously, as we must, see In re Marriage of Ikeler, 161 P.3d at 666-67, we conclude the following: e The district courts have jurisdiction over claims brought under the public accommodation provisions contained in part 6 of the CRA. See § 24-34-8306(2)(b)(I)(B), C.R.S$.2010 (where a party files a charge alleging discriminatory or unfair practice under CRA parts 4 through 7, and the CCRD issues a notice that no probable cause exists for crediting the allegations of the charge, then the CCRD shall advise the parties that if the charging party wishes to file a civil action in a district court based on the charged conduct, the party must do so within ninety days); § 24-34-306(11), C.R.S.2010 (if the complainant has requested and received a notice of right to sue under § 24-34-306(15), C.R.8.2010, he or she may file a civil action seeking relief under CRA parts 4 through 7 "in the district court for the district in which the alleged discriminatory or unfair practice occurred"); § 24-34-806(14), C.R.S.2010 (subject to certain exceptions, no person may file a civil action in a district court based on CRA parts 4 through 7 without first having exhausted administrative remedies); § 24-34-602(1), C.R.S.2010 (action seeking assessment of fine due to discrimination in a place of public accommodation under CRA part 6 may be filed in "any court of competent jurisdiction in the county where the violation occurred"). e The county courts have concurrent jurisdiction with the district courts over claims for damages under the public accommodation provisions of part 6 of the CRA, but damages claims brought in a county court may not exceed the jurisdictional limits of the county courts. § 24-34-6038; Ohmie v. Martinez, 141 Colo. 480, 483, 349 P.2d 131, 132 (1960) (district and county court jurisdiction is concurrent with respect to matters that fall within the jurisdiction of both). We reject defendants' contention that, by filing her public accommodation claim in district court, Arnold was limited to seeking injunctive relief or a fine, and she could only have recovered damages had she filed her claim in county court, This contention runs counter to the very notion of judicial economy. We have seen nothing that would reflect a legislative intent to encourage the filing of multiple suits in multiple courts if an aggrieved party seeks more than one kind of relief for the same public accommodation claim, and such a requirement would be absurd, as it could lead to inconsistent rulings on the same claim. See Adams Reload Co. v. Int'l Profit Assocs., Inc., 143 P.3d 1056, 1061 (Colo.App.2005) (Judicial economy supports litigation of all related claims in one action); cf. Hernandez v. Woodard, 873 P.2d 20, 21 (Colo.App.1993) (res judicata (now known as claim preclusion) doctrine generally precludes a party from splitting a cause of action into separate suits for the same claim). Despite defendants' acknowledgement that Arnold could have filed an action in district court seeking to recover a fine, defendants nevertheless assert that Arnold would have been limited to obtaining injunctive relief in district court, had she sought such relief. In support of their position that Arnold's remedy would have been limited to equitable relief, defendants cite Continental Title Co. v. District Court, 645 P.2d 1310 (Colo.1982), and Watson v. Public Service Co., 207 P.3d 860 (Colo.App.2008). However, because both of those cases were employment discrimination actions brought under a part of the CRA-part 4-that is not the basis of Arnold's suit, they are inapplicable. See Continental Title Co., 645 P.2d at 1316-17 (construing § 24-34-405, C.R.S.2010); Watson, 207 P.3d at 865-67 (construing § 24-34-402.5(2)(a), C.R.S.2010). Defendants also contend that section 24-34-605, C.R.S.2010, limits a plaintiff's — 105 — remedies to equitable relief for part 6 claims that are brought in district court. This seetion provides: In addition to the relief authorized by seetion 24-84-306(9), the commission may order a respondent who has been found to have engaged in a discriminatory practice as defined in this part 6 to rehire, reinstate, and provide back pay to any employee or agent discriminated against because of his obedience to this part 6; to make reports as to the manner of compliance with the order of the commission; and to take affirmative action, including the posting of notices setting forth the substantive rights of the public under this part 6. This statute provides a remedy to an employee or agent of a respondent who was discriminated against because of the employee's or agent's "obedience to this part 6." Here, any employee or agent referred to in this statute would be an employee or agent of the Association. Thus, this provision is inapplicable to Arnold. The district court here had jurisdiction to hear Arnold's public accommodation claims under CRA part 6, and therefore it was error for the court to dismiss her CRA claim. We reverse the court's judgment dismissing that claim and remand the claim for further proceedings. III. Breach of Contract Arnold argues that the trial court erred in dismissing her breach of contract claim. We disagree. A. Procedural Posture This case has an unusual procedural history. Defendants filed a motion to dismiss Arnold's breach of contract claim very shortly before trial, and the trial court granted the motion without a response from Arnold. However, the court reconsidered its ruling on the morning of trial, and did not confine its review to the specific matters raised in the complaint. Instead, it gave Arnold, who at that point was proceeding pro se, significant leeway to orally define the basis of her breach of contract claim and to specify the documents that supported her claim, none of which were referenced in the complaint. Based on her statements and the representations of defendants, the court determined that the contract was comprised of the Association's articles of incorporation and bylaws, together with sections 7-56-101 to - 901, C.R.98.2010 (the Cooperatives Act). Because the trial court considered matters outside the complaint and documents not referenced in the complaint, it essentially treated the motion as one for summary judgment under C.R.C.P. 56, and defendants conceded as much at oral argument. See C.R.CP. 12(b) (if, in considering a motion under C.R.C.P. 12(b)(5), the court considers information outside the complaint, the motion to dismiss must be treated as a motion for summary judgment); Pub. Serv. Co. v. Van Wyk, 27 P.3d 377, 386 (Colo.2001) (same). Thus, we apply the standard of review applicable to a summary judgment under C.R.C.P. 56, rather than that applicable to a dismissal under C.R.C.P. 12(b)(5). B. Standard of Review "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." McDaniels v. Laub, 186 P.3d 86, 87 (Colo.App.2008) (citing C.R.C.P. 56(c)). We review a grant of summary judgment de novo. Id. Additionally, we review the interpretation of contract terms de novo. Edge Telecom, Inc. v. Sterling Bank, 143 P.3d 1155, 1159 (Colo.App.2006). C. Express Contract Arnold contends the trial court erred in determining that she did not have an express contractual right to purchase goods and services from the Association's store. We disagree. Arnold argues that the Association's articles of incorporation and bylaws, when read together with the Cooperatives Act, provide her with an express right to purchase goods and services from the Association's store. — 106 — It is well established that contracts are "interpreted in light of the intentions of the contracting parties, proven in some cases by ... the requirements imposed by state statute[s]," Benham v. Pryke, 744 P.2d 67, 72 (Colo.1987), and the parties here agree that the provisions of the Cooperatives Act form part of the contract. In addition to Colorado statutes, the trial court and the parties here assumed that the Association's bylaws and articles of incorporation would be the source of any provision that could support Arnold's breach of contract claim. Although Arnold has cited case law indicating that a corporation's charter governed the contractual relationship between a corporation and its stockholders, Goldman v. Union Bank & Trust, 765 P.2d 638, 641 (Colo.App.1988), the parties have not briefed the issue of whether a cooperative's bylaws and articles of incorporation could form the basis for a breach of contract claim, and we discern no ready answer to this question. Cf. Paulek v. Isgar, 38 Colo.App. 29, 31, 551 P.2d 213, 215 (1976) (provision in bylaws is a contract between corporation and shareholders); Hampton v. Tri-State Finance Corp., 30 Colo.App. 420, 426, 495 P.2d 566, 569 (1972) (contract between stockholders and corporation includes terms in the articles of incorporation). Assuming, without deciding, that the bylaws and articles of incorporation constitute a contract with Arnold that could form the basis for a breach of contract claim, we nevertheless conclude she has failed to establish a claim for breach. Arnold argues that two provisions of the Association's governing documents form the basis for her breach of contract claim. The first, contained in the Association's articles of incorporation, states that "the purposes for which [the Association] is formed are ... (2) to manufacture, sell or supply to its members (and non-member patrons) machinery, equipment, and supplies and to engage in any activity in connection therewith." The second, contained in article I, section 1(b) of the Association's bylaws, states that "[the [Association] shall admit to membership every applicant who (1) applies for admission for the purpose of participating in the activities of the cooperative." Neither of these provisions contains an enforceable promise that Arnold will be permitted to continue purchasing goods and services from the Association's store. See Ad Two, Inc. v. City & County of Denver, 9 P.3d 378, 376 (Colo.2000) ("Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforeed according to their plain language."). Arnold emphasizes the legislative declaration in section 7-56-102(1)(a), C. R.S.2010, of the Cooperatives Act that the "cooperative form of doing business provides an efficient and effective method for persons to market their goods and services and to obtain services and supplies." This legislative declaration does not provide Association members with an express right to purchase goods and services from the Association's store and therefore does not support Arnold's breach of contract claim. To the extent the dissent relies on other contractual and statutory provisions to conclude Arnold raised a valid breach of contract claim, those provisions either were not raised at all on appeal by the parties, or were raised by Arnold's appellate counsel only in oral argument. Therefore, any arguments concerning these provisions were not preserved for our review. See Bumbal v. Smith, 165 P.3d 844, 847-48 (Colo.App.2007) (court will not consider arguments raised for the first time in a reply brief or during oral argument); see also People v. Diefenderfer, 784 P.2d 741, 752 (Colo.1989) (it is the duty of counsel for appealing party to inform a reviewing court as to the specific errors relied on, as well as the grounds, supporting facts, and authorities therefor). Because Arnold has identified no express contractual right to enter or purchase from the Association's store, we conclude the trial court did not err in granting the Association's motion for summary judgment regarding her breach of contract claim. D. Implied Contract Arnold next contends that, as an alternative to her express contract claim, the trial court should have implied terms into — 107 — the contract or proceeded under a quasi-contract theory to find that she had a right to purchase goods and services from the Association's store. She argues that the very purpose of becoming a member of the Association and the requirement that she pay a membership fee imply that she had a right to purchase goods and services. Defendants contend that Arnold did not raise these arguments before the trial court and, as a result, she cannot now raise them on appeal. Arnold responds that she preserved these arguments by arguing before the trial court that "the ability to buy and sell agrieul-tural products ... is the crux of the entire contract." According to Arnold, this argument described, in lay terms, an implied contract. This argument did not preserve Arnold's implied term and quasi-contract arguments. Viewed in the light most favorable to Arnold, her statement eannot be construed as a request to imply new contract terms or to allow her to assert a claim based on a quasi-contract theory. Thus, because these arguments were not raised in the trial court, we will not consider them for the first time on appeal. Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 (Colo.1992) (arguments never presented to, considered by, or ruled upon by a trial court may not be raised for the first time on appeal). In any event, to the extent Arnold sought to have the court rewrite her contract to include a requirement that she be allowed to continue to shop at the Association's store, it could not do so. See USI Properties East, Inc. v. Simpson, 938 P.2d 168, 173 (Colo.1997) (courts should not rewrite parties' contracts). As part of her argument that the trial court should have implied a right in the contract for Arnold to continue to shop at the store, she points to provisions of the bylaws regarding allocation of net margins and investments in equity capital of the Association. "Net margins" are defined in the bylaws as the balance of gross receipts of the Association that remain after certain deductions have been made. Members and participating patrons may accrue net margins in proportion to the quantity or value of goods they buy or sell. Members and other qualified persons may acquire equity capital by the Association's retaining portions of their allocated shares of net margins. See § 7-55-101(1)(a), C.R.98.2010 (describing a cooperative association, in part, as one that distributes its earnings on the basis of the amount of property bought from or sold to members or other patrons); § 7-55-101(1)(b), C.R.S. 2010 (discussing interest on equity capital); cf. Bontrager v. La Plata Electric Ass'n, 68 P.3d 555, 562 (Colo.App.2003) (discussing patronage dividends and refunds by cooperative electric associations). While Arnold made a version of this argument in the trial court and thus arguably preserved it, we disagree with the merits of her contention. The Association's bylaws provide that the cooperative's net margins shall be allocated to its members and other "participating patrons" "on a patronage basis." Arnold relies on this language to effectively argue that because a member's ability to acerue net margins and equity capital depends on the purchase of goods or services from the Association's store, a member must therefore have a right to purchase goods and services from the store. While the bylaws do provide for such an allocation of the Association's net margins, they do not provide members any right to purchase in order to receive net margins. The right to receive net margins on a patronage basis does not necessarily imply that members have a right to purchase goods and services from the Association's store. Adoption of Arnold's argument would require us to rewrite her contract with the Association, which we cannot do. See USI Properties East, Inc., 938 P.2d at 173. E. Special Cireumstances Applicable to Cooperatives Arnold argues that cooperative asso-clations differ from ordinary businesses and that any analysis of cooperative members' rights must necessarily account for the peeu-liarities of the cooperative structure. While we acknowledge that cooperatives have characteristics that distinguish them from traditional businesses, this cireumstance does not relieve Arnold of the burden of demonstrating an express contractual right to purchase — 108 — goods and services from the Association's store, and she has not done so. IV. Interference with Contract Because Arnold's interference with contract claim was wholly dependent on her claim for breach of express contract, and the latter claim could not be sustained, we conclude the trial court did not err in granting the Association's motion for summary judgment as to Arnold's interference claim. V. Fees and Costs Arnold also appeals the trial court's award of fees and costs. We agree that the costs award must be reversed, but disagree as to the attorney fees award. Given our resolution of the issues presented on appeal, we vacate the trial court's ruling on costs. See Rossman v. Seasons at Tiara Rado Assocs., 943 P.2d 34, 38 (Colo.App.1996). Arnold states that the trial court awarded attorney fees against her "to cover Defendant's costs [sic] of filing motions to compel early in the litigation." However, on appeal, she fails to assert any error in that award. Contrary to her assertion, our reversal of portions of the judgment does not correspondingly entitle her to reversal of that award. We reject Arnold's request for attorney fees on appeal because she has not specified any grounds for such an award. Travelers Prop. Cas. Co. v. Farmers Insurance Exchange, 240 P.3d 521, 524-25 (Colo.App.2010) (under C.A.R. 39.5, if attorney fees are recoverable for an appeal, the party claiming them must specifically request them and state the legal basis therefor). VL Appellate Jurisdiction Defendants argue that we lack jurisdiction to hear this appeal because Arnold filed her notice of appeal more than forty-five days after the final claim was dismissed. We reject this argument. C.AR. 4(a) provides that "in a civil case ... the notice of appeal required by C.A.R. 3 shall be filed with the appellate court ... within forty-five days of the date of the entry of the judgment, decree, or order from which the party appeals." Under C.AR. l(a), a matter is reviewable only if taken from a final judgment. "A final judgment is defined as one which ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceeding." Stillings v. Davis, 158 Colo. 308, 310, 406 P.2d 337, 338 (1965). There must be a signed and dated written order for there to be a final judgment. C.R.GC.P. 58(a); In re Marriage of Hoffner, 778 P.2d 702, 703 (Colo.App.1989). The trial court dismissed Arnold's first claim on August 3, 2009, and dismissed Arnold's remaining claims on September 4, 2009. Defendants voluntarily dismissed their counterclaim on September 8, 2009. Also on September 8, the trial court reconsidered its September 4, 2009 ruling and upheld that ruling in an oral order. Defendants argue that the forty-five-day period for appellate review should have begun to run on September 8, 2009. However, the trial court did not enter a written and signed order regarding defendants' voluntary dismissal of their counterclaim until October 5, 2009. The October 5, 2009 order was the final, appealable judgment. Because Arnold filed her notice of appeal within forty-five days of this order, her filing was timely. The judgment dismissing Arnold's claim under the CRA is reversed, and the case is remanded for further proceedings on that claim. In all other respects, the judgment is affirmed. The trial court's order awarding costs to defendants is reversed, and the order awarding attorney fees is affirmed. Judge MILLER concurs. Judge TAUBMAN concurs in part and dissents in part.