source: Caselaw Access Project

author: Justice MARTINEZ

license: Public Domain

text:
    In re Barbara J. MORGAN, Plaintiff v. The GENESEE COMPANY, LLC; Horseshoe Lake Investors, LLC; The Genesee Company/Horseshoe Lake Investors, LLC; Kathryn A. Fox; Dale Martin; and Gerald J. Forro, Defendants.
    No. 03SA276.
    Supreme Court of Colorado, En Banc.
    March 15, 2004.

      Ball, Easley, Wabeke, Brummet, and Johnson, Dwight D. Brummet, Loveland, Colorado, Attorneys for Petitioner.
    Liggett, Smith, and Wilson, P.C., Zachary G. Wilson, Amy K. Rosenberg, March, Lilly, and Olive, P.C., Stewart W. Olive, Fort Collins, Colorado, Attorneys for Respondents.
   Justice MARTINEZ

delivered the Opinion of the Court.

In this original proceeding, brought pursuant to C.A.R. 21, 12 C.R.S. (2003), the plaintiff, Barbara Morgan, seeks relief from a trial court order granting judgment for her, but over her objection, for the amount of damages specified in her initial disclosure statement filed pursuant to C.R.C.P. 26(a)(1)(C), 12 C.R.S. (2003). Defendants Genesee Company and Horseshoe Lake Investors filed a joint motion asking the trial court to grant judgment against them for $24,041.75, the amount of damages listed in Morgan’s initial disclosure statement. After considering the arguments of both parties on the issue, the trial court granted the defense motion. The issue central to the case before us is whether a party may have judgment entered against them for a specific amount of damages over the objection of the opposing party. In the procedural context in which this issue is presented to us, we hold that the trial court erred by granting judgment against Genesee Company and Horseshoe Lake Investors for the amount of damages specified in Morgan’s initial disclosure statement.

I.

FACTS AND PROCEEDINGS BELOW

On August 12, 2002, Morgan filed suit against several defendants (The Genesee Company, LLC, Horseshoe Lake Investors, LLC, Kathryn A. Fox, Dale Martin, and Gerald Forro) asserting claims for relief that include: breach of contract, third party beneficiary breach of contract, negligence, fraud, and consumer protection act violations. These claims arose from flooding that took place on Morgan’s property. At no point in the complaint did Morgan specify what monetary damages she had incurred.

On March 21, 2003, Morgan filed her initial disclosure statement pursuant to C.R.C.P. 26(a)(1)(C). In the disclosure statement, Morgan claimed that she had incurred damages totaling $24,041.75. Morgan also noted in her disclosure statement that, “these disclosures are based on the information now known and reasonably available to the Plaintiff. The disclosures made herein may be updated as discovery continues.”

On April 10, 2003, defendants Genesee Company, Horseshoe Lake Investors, Kathryn Fox, and Dale Martin, filed a joint motion for judgment and order based upon certain pleadings. The defendants asked that the trial court enter judgment against Genesee Company and Horseshoe Lake Investors for the amount of damages contained within Morgan’s initial disclosure statement. In support of their motion, the defendants argued that the damages listed in Morgan’s initial disclosure statement, $24,041.75, were less than the $24,753.25 that the defendants offered to settle the matter. Additionally, the defendants contended that the trial court should grant their joint motion because the defendants had cooperated with the city of Loveland to allow certain drainage and other work to be performed on Morgan’s property. Although the defendants asked that a $24,041.75 judgment be entered against Gen-esee Company and Horseshoe Lake Investors for the damage to Morgan’s property, they wished to contest attorney fees and interest payments on the property.

On April 15, 2003, the trial court granted the defendants’ joint motion and entered judgment against them for $24,041.75. Morgan later filed a response to the defendants’ joint motion for judgment. In that response, Morgan indicated that she had based the damages listed in her initial -disclosure statement on estimates she received from a contractor and engineering fees she had incurred prior to March 21, 2003. Morgan further stated that the city of Loveland and certain defendants had not yet given her permission to make repairs, and therefore all the damages she listed in the initial disclosure were based on estimates.

After receiving Morgan’s response, the trial court vacated its April 15 order and allowed the parties to contest the issue. The defendants argued to the court that Morgan changed the scope of the repairs to her property after receiving the defendants’ offer of settlement. Thus, the defendants claimed, Morgan should not be allowed to increase the amount of her damages prior to trial. Further, the defendants insisted that the doctrine of judicial estoppel barred Morgan from increasing claimed damages by changing the scope of work on her property.

On May 9, 2003, the trial court issued an order reinstating its earlier ruling entering judgment against Genesee Company and Horseshoe Lake Investors for $24,041.75. In essence, the trial court ruled in favor of the defendants because Morgan did not specifically characterize the damages listed in her initial disclosure statement as “estimates.” The trial court reasoned:

The Disclosure statement of plaintiff submitted on March 21, 2003, provided a computation of damages. No language as to these computations being estimates was used. Rather, plaintiff indicated only “Plaintiff has incurred damages.... ” Therefore, based on the pleadings and the argument of defendants set forth in their motion and reply, the Court reinstates the order previously signed by the court on April 15, 2003. As to these defendants, the sole remaining issue shall be as to attorney fees and/or interest payments on the unused property.

Following this ruling, Morgan filed a supplemental disclosure statement pursuant to C.R.C.P. 26(a)(1) detailing additional damages she had incurred. Morgan also filed a motion for reconsideration and request for hearing regarding the trial court’s entry of judgment against Genesee Company and Horseshoe Lake Investors. In her motion for reconsideration, Morgan again asserted that she used estimates to compute damages in her initial disclosure statement because the repair work had not yet been completed. Further, Morgan argued that the initial estimates related to engineering reports that had been previously submitted to the city of Loveland. Morgan noted that additional engineering reports were currently pending with the city of Loveland and, if approved, would generate further costs and damages. Finally, Morgan contended that the defendants’ reliance on the doctrine of judicial estoppel was misplaced.

The defendants filed a response to Morgan’s motion for reconsideration on July 14, 2003. In their response, the defendants argued that the engineering reports pending approval by the city of Loveland were based on changes to the drainage system that were completely at Morgan’s discretion. Therefore, the defendants contended that they should not be held responsible for the costs associated with these discretionary repairs.

On August 12, 2003, the trial court found that its original order was appropriate and denied Morgan’s motion to reconsider. Pursuant to C.A.R. 21, Morgan asks this court to determine whether it was proper for the trial court to grant defendants’ joint motion requesting that judgment be entered against Genesee Company and Horseshoe Lake Investors for $24,041.75, the amount of damages listed in Morgan’s initial disclosure statement.

II.

C.A.R. 21 Jurisdiction

We have original jurisdiction under C.A.R. 21 to review “whether a trial court abused its discretion in circumstances where a remedy on appeal would prove inadequate.” Silva v. Basin W., Inc., 47 P.3d 1184, 1187 (Colo.2002); Leaffer v. Zarlengo, 44 P.3d 1072, 1077 (Colo.2002); Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 975 (Colo.1999). Ultimately, the exercise of original jurisdiction is “governed by the particular circumstances of the case.” Hamon Contractors, Inc. v. Dist. Court, 877 P.2d 884, 887 (Colo.1994). Accordingly, given the unique circumstances of the present case and procedural context in which it arose, we exercise original jurisdiction to determine whether the trial court erred in granting judgment against Genesee Company and Horseshoe Lake Investors for the damages contained within Morgan’s initial disclosure statement.

Generally, orders relating to discovery are interlocutory in nature and not reviewable in an original proceeding. Silva, 47 P.3d at 1187; Bond v. Dist. Court, 682 P.2d 33, 36 (Colo.1984). However:

we have not been reluctant to exercise that original jurisdiction when an order, otherwise interlocutory in character, will place a party at a significant disadvantage in litigating the merits of the controversy. Although matters of pretrial discovery are ordinarily within the discretion of the trial court, they are not exempted from extraordinary relief under appropriate circumstances.

Sanchez v. Dist. Court, 624 P.2d 1314, 1316-17 (Colo.1981). In the present case, the trial court exceeded its authority to regulate the pretrial discovery process by granting the defendants’ joint motion for judgment for the amount of damages specified in Morgan’s initial disclosure statement and effectively imposing settlement on Morgan. Thus, we exercise original jurisdiction, make the rule absolute, and direct the trial court to deny the joint motion for judgment that it previously granted.

III.

ANALYSIS

This case raises the question of whether the court may enter judgment at the request of the defendants for the specific amount of damages indicated in a plaintiffs disclosure statement, over the objection of a plaintiff. The defendants in this case argue that Morgan is bound by the amount of damages listed in her initial disclosure statement largely because Morgan did not expressly state in the disclosure statement that her damages were speculative. Morgan argues that the amount of damages contained within her disclosure statement is not binding, noting the statement indicated that the damages were based upon information that was known at the time the initial disclosure statement was filed and further, that the statement indicated the amount of damages could be updated.

At the onset, it is important to our analysis to discuss the procedural context in which this dispute has arisen. We begin by concluding that the motion for judgment in a specific amount was not an offer of judgment or settlement, although it is facially similar to both. We also note that the context was not a hearing or trial on the appropriate amount of judgment after a confession of liability. Finally, we emphasize the court was not imposing sanctions on an errant party for deficiencies in the disclosure. Only after clarifying the procedural context in which this dispute arose can we discuss the effect of a motion for judgment at the request of the defendants for the specific amount of damages indicated in Morgan’s disclosure statement, over the objection of Morgan.

A.

PROCEDURAL CONTEXT

1. OFFER OF JUDGMENT AND OFFER OF SETTLEMENT

According to their joint motion for judgment, Genesee Company and Horseshoe Lake Investors offered to settle this case for $24,753.25, but Morgan did not accept the offer. Subsequently, on March 21, 2003, Morgan filed her initial disclosure statement pursuant to C.R.C.P. 26(a)(1)(C). In that statement, Morgan explained that she had thus far incurred damages totaling $24,041.75. Soon thereafter, the defendants attempted to confess judgment for the specific amount of damages contained within Morgan’s initial disclosure statement.

Before 1990, the procedure governing offers of judgment was contained in C.R.C.P. 68. See Hildyard v. W. Fasteners, Inc., 33 Colo.App. 396, 522 P.2d 596, 598 (1974) (“C.R.C.P. 68 sets forth the procedure in Colorado for confession of judgment by authorizing defendants to offer to allow judgment to be taken against them.”). C.R.C.P. 68 provided a mechanism through which a defendant could offer to have judgment entered against him for monetary damages or property. As C.R.C.P. 68 specifically stated:

At any time more than ten days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specialized in his offer, with costs then accrued.

Although C.R.C.P. 68 supplied defendants with a means to attempt to settle a dispute, judgment could not be entered against any defendants absent a plaintiffs approval. C.R.C.P. 68 related that an “offer not accepted shall be deemed withdrawn.” Thus, if a party declined to accept an offer of judgment, the offer could not be construed as binding. Hildyard, 522 P.2d at 598. Additionally, under C.R.C.P. 68, if a party declined an offer of judgment and was granted a final judgment that was less favorable than the offer, that party would be liable for “the costs incurred after the making of the offer.” In essence, C.R.C.P. 68 was designed to encourage settlement by establishing a cost shifting penalty for rejecting an offer subsequently determined by the verdict to be a sufficient amount.

In the present case, Morgan objected to the defendants’ offer to have judgment entered against them for the amount of damages contained within Morgan’s initial disclosure statement. Although the rule is no longer applicable, even former C.R.C.P. 68 required that a plaintiff accept any offer of judgment in order for that offer to become binding.

C.R.C.P. 68 was replaced by the current offer of settlement statute, section 13-17-202, 5 C.R.S. (2003). Former C.R.C.P. 68 and section 13-17-202 are very similar in that the purpose of each is to encourage the settlement of disputed claims. See Centric-Jones Co. v. Hufnagel, 848 P.2d 942, 947 (Colo.1993). In order to encourage settlement, section 13-17-202 “provides very clear and definite steps” for a party to follow should they wish to resolve a case before trial. Id. at 947. Because section 13-17-202 offers such a clear procedure for parties to follow, a trial court has a small role in the offer of settlement process. As we noted in the Centric-Jones Co. case:

the parties, not the court, are the players under the statute, and the operation of the statute takes place largely outside the aegis of the trial court. Unless the offer is accepted or the amount recovered at trial is less than the offer, nothing is filed with the court concerning an offer of judgment. Furthermore, the court is required to award costs if the offer is refused and the subsequent trial judgment obtained is less favorable to the offeree than the offer, whether the offeree prevails or not. The court is not permitted to award costs to the prevailing party. The court also has no discretion to alter or modify the offer of judgment if accepted by the offeree, and the clerk must enter the judgment under the plain language of the statute, which states that “the clerk shall enter judgment.” The use of the word “shall” within a statute is presumed to be mandatory.

Id. at 947.

In the present case, Genesee Company and Horseshoe Lake Investors offered to settle prior to Morgan’s filing of the initial disclosure statement. The offer was subsequently rejected by Morgan. Thus, as explained above, Genesee Company and Horseshoe Lake Investors essentially attempted to confess judgment for the amount of damages specified in the initial disclosure statement despite the fact that such action is not authorized by section 13-17-202. Section 13-17-202 is designed to encourage parties to work together to resolve a dispute through settlement. In contrast, Genesee Company and Horseshoe Lake Investors are attempting to bind Morgan to the damages listed in her initial disclosure statement over her objection. The defendants’ action in this regard takes them out of the purview of section 13-17-202.

As we have shown, the defendants’ motion for judgment in a specific amount was neither an offer of judgment nor an offer of settlement. Similarly, it is also improper to characterize the defendants’ motion as a confession of liability and a request for a hearing or trial to determine the amount of damages. The motion expressly states that the defendants are willing to have judgment entered against them for the specific amount of damages listed in Morgan’s initial disclosure statement ($24,041.75). It would be unfair to the defendants to read the motion as confessing liability and asking the court to determine the proper amount of damages. Rather, the request for judgment appears to be conditioned on the court’s willingness to impose judgment in the specified amount. Indeed, in her response to the defendants’ motion, Morgan did not agree with the request for a judgment on liability and opposed only the amount of damages. Rather, she, and the court, apparently read the motion as offering to confess judgment only if judgment was in the amount of $24,041.75. Hence, the court did not conduct a hearing to determine the appropriate amount of damages.

It is important to note that this was not a hearing on damages because, in the context of such a hearing, a court could face questions about whether a deficient disclosure statement should be sanctioned by limiting evidence that might be produced. Thus, our discussion of whether the disclosure statement has the binding effect urged is limited to the issue of a request for judgment in favor of the objecting party in a specified amount.

2. PURPOSE AND SCOPE OF DISCOVERY

As we will discuss below, C.R.C.P. 26(a)(1)(C) and C.R.C.P. 26(e) exist to ensure that discovery information is provided early and is updated in a timely manner in order to both promote accuracy and encourage settlement while preparing for trial. Judgment in the specific amount of the initial disclosure in this ease discounts the importance of the early exchange of information and the resulting need to update disclosed information. Additionally, the trial court’s action inappropriately extends to defendants the power to decide at what point in the discovery process disclosed information becomes binding.

According to C.R.C.P. 1(a), the Colorado Rules of Civil Procedure “shall be liberally construed to secure the just, speedy and inexpensive determination of every action.” And although the scope of discovery is not limitless, the scope of discovery under the Rules is very broad. Silva, 47 P.3d at 1188. As this court noted in J.P. v. Dist. Court, 873 P.2d 745, 750 (Colo.1994), a liberal construction of the discovery rules:

assures that all parties are afforded their day in court and guarantees that all relevant evidence is available for presentation at trial.... As such, it is unreasonable to deny a party an opportunity to present relevant evidence based on a draconian application of the pretrial rules.

The liberal nature of the Rules requires that, in close cases, a “balance must be struck in favor of allowing discovery.” Silva, 47 P.3d at 1188; Williams v. Dist. Comt, 866 P.2d 908, 911 (Colo.1993). We “liberally construe discovery rules to eliminate surprise at trial, discover relevant evidence, simplify issues, and promote the expeditious settlement of cases.” Silva, 47 P.3d at 1188; Bond, 682 P.2d at 40. Thus, a fundamental goal of the discovery rules is to encourage the fair, just, and prompt resolution of disputes through settlement.

Given the unique circumstances of the present case, we are called upon to evaluate the relationship between the goal of the discovery rules in promoting settlement with a disclosure statement filed pursuant to C.R.C.P. 26(a)(1). In rendering its ruling on the issue of whether judgment should be entered against defendants Genesee Company and Horseshoe Lake Investors for the amount of damages stated in the initial disclosure statement, the trial court relied heavily on the fact that Morgan did not indicate in her disclosure statement that the computation of damages were “estimates.” The trial court reasoned:

The Disclosure statement of plaintiff submitted on March 21, 2003, provided a computation of damages. No language as to these computations being estimates was used. Rather, plaintiff indicated only “Plaintiff has incurred damages.”

In essence, because Morgan did not refer to the damages in her initial disclosure statement as estimates, the trial court bound her to the amount of damages listed in the document.

Mindful that the trial court was imposing judgment for Morgan over her objection, we do not agree that the initial disclosure statement may be given binding effect under these circumstances. The trial court’s action is problematic for three reasons. First, it places undue significance on Morgan’s failure to label the damages in the initial disclosure statement as estimates. Second, it takes the initial disclosure of damages out of context as they were properly described as “based on information now known and reasonably available to the Plaintiff.” Finally, it ignores the importance of an early exchange of information and the resulting need to update disclosed information.

C.R.C.P. 26(a)(1) details the automatic disclosures a party must make within 30 days of a case becoming at issue. According to C.R.C.P. 26(a)(1), a party shall make these initial disclosures “based on information then known and reasonably available to the party.” One of the initial disclosures a party must automatically make relates to the damages a party has suffered. Under C.R.C.P. 26(a)(1)(C), a party must disclose both a description of the damages the party has suffered and also a computation of the economic costs of the damages. C.R.C.P. 26(a)(1)(C) requires:

A description of the categories of damages sought and a computation of any category of economic damages claimed by the disclosing party, making available for inspection and copying pursuant to C.R.C.P. 34 the documents or other evidentiary material, not privileged or protected from disclosure, as though a request for production of those documents had been served pursuant to C.R.C.P. 34.

The purpose of this provision is to require early disclosure of information about damages in order to move the case toward trial or settlement.

Further, a party’s duty to disclose damage computations does not end with the initial automatic disclosures. C.R.C.P. 26(e) imposes on litigants a continuing duty to update and supplement all C.R.C.P. 26(a) disclosures “in a timely manner.” The relevant portion of C.R.C.P. 26(e) states:

A party is under a duty to supplement its disclosures under section (a) of this Rule when the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.

The purpose of this provision is to provide accurate information to opposing parties throughout the discovery process, recognizing that previous disclosures may become incomplete or incorrect as preparation of the case progresses. With the aid of accurate, updated information, a party is better equipped to decide whether it is in his or her best interest to settle a case.

In the present case, Morgan properly filed C.R.C.P. 26(a)(1) disclosures. Pursuant to C.R.C.P. 26(a)(1)(C), the disclosure statement included a computation of damages totaling $24,041.75. Although Morgan indicated in the disclosure statement that “Plaintiff has incurred damages in the amount of’ $24,041.75, she also stated that “disclosures are based on the information now known and reasonably available to the Plaintiff.” The statement that the disclosures were based on information “now known and reasonably available” is consistent with the requirement of C.R.C.P. 26(a)(1) that a party make the initial disclosures “based on information then known and reasonably available to the party.” Morgan also stated in her disclosure statement that, “The disclosures made herein may be updated as discovery continues.” The representation the disclosure may be updated is consistent with the continuing duty in C.R.C.P. 26(e) to update and supplement all C.R.C.P. 26(a) disclosures.

Despite her initial compliance with C.R.C.P. 26(a)(1)(C), the trial court bound Morgan to the computation of damages contained within her initial disclosure statement, and entered judgment against Genesee Company and Horseshoe Lake Investors, because Morgan did not refer to the damages as estimates. While it would have been more accurate for Morgan to characterize the damages listed in her initial disclosure statement as estimates, the trial court’s ruling disregards the importance of early disclosure coupled with a continuing duty on litigants to supplement C.R.C.P. 26(a) disclosures. Rule C.R.C.P. 26(e) reflects the liberal nature of the discovery rules because it recognizes not only that information may change during the pretrial process, but also that some discovery may need to be corrected. As such, C.R.C.P. 26(e) is not designed to bind a party to them initial disclosures pursuant to C.R.C.P. 26(a)(1).

C.R.C.P 26(a)(1)(C) and C.R.C.P. 26(e) exist, in part, to ensure that a party is not surprised at trial because disclosures have not been adequately updated. Although the purposes of the rules include exchange of sufficient information to promote settlement, only if a disclosure is misleading or untimely would it seem to violate these purposes.

In the present case, the argument centers on whether a failure to characterize damages in an initial disclosure statement as estimates prevails over the indication that the information was based on what was then known and would be updated. The critical inquiry should instead focus on whether the defendants were misled to believe that the work on Morgan’s property had been completed and that the initial disclosure was a final calculation of damages, or whether the defendants were somehow prevented from pursuing settlement. No claim has been made in this case that the defendants were misled by the damages or that Morgan failed to amend her disclosures in a timely manner. In fact, the actual damages in this case have yet to be determined because work has not been completed on the property. Thus, the defendants seek to bind Morgan to an amount that, considered in context, was merely the latest bid for work not yet commenced.

The defendants’ joint motion and the judgment of the trial court inappropriately extend to defendants the opportunity to decide at what point in the discovery process disclosed information becomes binding. Because defendants control the timing of a motion for judgment for the amount specified in a disclosure statement, they necessarily choose the moment in the discovery process when a binding effect is proposed for particular disclosures. Given the purposes behind C.R.C.P. 26(a)(1)(C) and C.R.C.P. 26(e), we cannot agree that continuing disclosures can be frozen in time to force settlement. Under all of these circumstances, the initial disclosure statement should not have a binding effect.

By binding Morgan to the damage computations listed in her initial disclosure statement merely because she did not designate the computations as estimates, the trial court overemphasizes Morgan’s failure to state that the initial disclosure of damage was an estimate, neglects to view the initial disclosures in the context of being information “now known and reasonably available,” and is insufficiently attentive to the importance of an early exchange of information and the resulting need to update disclosed information. C.R.C.P. 26(a)(1)(C) and C.R.C.P. 26(e) exist to ensure that information is updated in a timely manner in order to both promote accuracy and offer encouragement to settle. Absent some indication Morgan tried to mislead the defendants or the court in her initial disclosure statement or tried to frustrate the settlement process, she may not be required to accept an offer limited to her initial disclosures.

Parties involved in civil cases should work with one another in an attempt to settle their disputes. As we have shown, specific Colorado statutes and rules of civil procedure encourage settlement of claims. Section 13-17-202 details the steps a party must take in regard to offers of settlement. C.R.C.P. 26(a)(1)(C) and C.R.C.P. 26(e) exist, in part, to promote the exchange of sufficient information in order to encourage settlement. As a whole, these statutes and rules afford parties opportunity and encouragement to settle disputes without court involvement. In this ease, by granting the defendants’ joint motion for judgment over the objection of Morgan, the trial court effectively imposed a settlement on Morgan and improperly involved the court in the settlement process. Hence, the trial court abused its discretion and its order of May 9, 2003 was in error.

IV.

CONCLUSION

We make the rule absolute and direct the trial court to deny the joint motion for judgment that it previously granted.

      . In their joint motion, the defendants specifically stated:
      Defendants Genesee Company/Horseshoe Lake, LLC is willing to allow judgment to be entered against it in the amount of the $24,041.75 specified by Morgan in her disclosure, if the Court limits the issues remaining for determination herein.

      . Other jurisdictions have also recognized that offers to confess judgment are not binding absent a plaintiff's approval. In Phillips v. Carson, 240 Kan. 462, 731 P.2d 820, 831 (1987), the Kansas Supreme Court stated that:
      it is a general rule that a creditor must consent to or ratify a judgment by confession. Such a judgment is not binding on the plaintiff unless the plaintiff consents to the judgment or later ratifies it.

        Similarly, the Supreme Court of Nebraska related:
      In order that a confession of judgment may be binding on the plaintiff, it is essential that he, either expressly or impliedly, assent thereto; if it is made without his request, knowledge, or consent, and entered at the instance of the debtor alone, it will have no validity unless the creditor ratifies or accepts it.

        In re Estate of Redpath, 224 Neb. 845, 402 N.W.2d 648, 652 (1987).

      . While the defendants were willing to have judgment entered against them for - the specific amount of damages contained within Morgan's initial disclosure statement, the defendants only agreed to such if tire court limited the issues remaining for determination. Thus, the defendants wished to contest “the applicability of attorney fees and interest payments on the unused property, as being proper elements of damage.”

      . In the complaint filed on August 12, 2002, Morgan requested that all issues pertaining to liability and damage be tried by a jury. Although there exists no constitutional right to a juiy trial in civil cases in Colorado, Gleason v. Guzman, 623 P.2d 378, 382 (Colo.1981), C.R.C.P. 38, 12 C.R.S. (2003), affords parties a right to a jury upon compliance with the rule. Thus, hypothetically, even if Genesee Company and Horseshoe Lake Investors were to confess liability, Morgan were to accept their confession, and the issue of damages were to remain a contestable issue, Morgan may be entitled to a jury trial on damages.


author: Justice RICE

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Dagoberto AGUILAR-RAMOS, Defendant-Appellee.
    No. 03SA312.
    Supreme Court of Colorado, En Banc.
    March 15, 2004.

      A.M. Dominguez, Jr., District Attorney, Rebecca Jane Wilson Brunswig, Chief Deputy District Attorney, Greeley, Colorado, Attorney for Plaintiff-Appellant.
    Coleman, Liu, Lyons, & Wheeler, LLP, Dea M. Wheeler, Greeley, Colorado, Attorney for Defendant-Appellee.
   Justice RICE

delivered the Opinion of the Court.

The People bring an interlocutory appeal challenging the trial court’s order suppressing the statements made to the police by the defendant, Dagoberto Aguilar-Ramos. The trial court ruled that the defendant “did not knowingly and intelligently waive his right to remain silent because he was never so advised,” and that the defendant was not sufficiently advised of his right to have an attorney present or of the possibility that his statements could be used against him. As such, the trial court concluded that the defendant did not knowingly and intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We now affirm the trial court’s order.

I. Facts

In the early morning hours of October 12, 2002, three police officers picked up Aguilar-Ramos at his residence in Greeley in connection with a kidnapping and sexual assault incident which had been committed the night before. Aguilar-Ramos was first discovered at the bottom of a flight of stairs at the house, whereupon an officer drew his weapon and urged the defendant, in English, to come out into the open. The officers then relied on the assistance of another resident of the house in order to inform Aguilar-Ramos, in Spanish, that they wished to question him at the police station. The defendant cooperated, and was taken to the Greeley police station where he was left in an interview room awaiting questioning.

A short while later, Detective Lobato entered the room and began interviewing Aguilar-Ramos in Spanish. At the outset of the videotaped interview, which was conducted entirely in Spanish, Detective Lobato spent several minutes attempting to get personal information from the defendant, including his name, where he was from, and how long he had been present in the country. The detective then presented Aguilar-Ramos with a printed Miranda rights form in Spanish and proceeded to read the defendant his rights in Spanish. After Detective Lobato had finished reading the form, he asked Aguilar-Ramos if he understood the rights explained. Aguilar-Ramos asked, “What does it mean yes. If I want my attorney_ How ... how ... can I put down here?” The detective responded, “O.K. The ... question is, do you understand these rights that I have explained. Answer yes or no.” Detective Lo-bato then explained to Aguilar-Ramos that he needed to sign the form so that he could talk to the detective, and further told him that “when you talk to me if you don’t want to talk to me no more, say to me, I don’t want to talk to you.” Aguilar-Ramos laughed in response to that advisement, and proceeded to sign the form as directed.

Detective Lobato allowed the defendant to read the form twice more, whenever questioning resumed. Each time, the detective asked Aguilar-Ramos if he understood his rights, and the defendant indicated that he did. On a couple of occasions, other officers, none of whom spoke Spanish, entered the interview room in order to convey information to Detective Lobato or to direct the detective to ask specific questions of the defendant. Over the course of several hours of questioning, Aguilar-Ramos made incriminating statements regarding his role in the kidnapping and sexual assault, leading to the criminal charges against him.

Prior to trial, Aguilar-Ramos filed a motion to suppress his statements as being obtained in violation of his rights under Miranda. A hearing was held in order to determine whether the defendant knowingly and intelligently waived his rights prior to the interrogation. Testimony was taken from Detective Lobato and Aguilar-Ramos, as well as from other officers involved in the night’s events and two defense experts.

Detective Lobato testified that he had only received one or two years of Spanish language instruction during high school, although he had been using the language periodically throughout his professional career. The detective conceded that during the interrogation he had struggled with several words, that he used English words rather than Spanish when necessary, that he “didn’t catch” the defendant’s request for information about how to obtain an attorney, and that although there were times throughout the interview when he did not understand what Aguilar-Ramos was saying to him, he did not always ask the defendant to repeat his answer. Additionally, Detective Lobato testified that interpretive help was sought from three Spanish-speaking officers, none of whom was available to assist the detective in his interrogation that night.

According to the primary defense expert witness, a certified court interpreter who had spent fifty hours reviewing the transcript and the videotaped interview, Detective Lobato’s lack of proficiency in Spanish rendered him unable to effectively communicate with Aguilar-Ramos. The expert noted three specific problems with Detective Lobato’s Miranda warnings. First, the detective told Aguilar-Ramos that he had the right to “carry” silent, rather than to remain silent. Second, the detective used the word “designar” in describing the right to counsel, which has two meanings in Spanish — to appoint or to design. According to the expert, that warning in no way adequately informed the defendant that he had the right to have counsel present at the interview and appointed to him free of charge. Finally, the expert noted Detective Lobato’s failure to respond to the defendant’s question regarding the right to have counsel present.

In addition to these difficulties with the warnings, the defense expert observed several other indicators of miscommunication including the fact that it took Detective Lobato eight efforts to obtain the defendant’s name prior to the interrogation, that Aguilar-Ramos would frequently provide answers that had nothing to do with the actual questions asked, and that the detective did not know several words in Spanish crucial to the interrogation and the resulting sexual assault charge; specifically, Detective Lobato did not know the Spanish words for vagina, penis, condom, ejaculate, semen, or underwear.

Aguilar-Ramos also testified at the hearing regarding his inability to understand the warnings communicated to him by Detective Lobato. In particular, the defendant testified that he had only three years of schooling in Mexico, that he had been in the country illegally for only fifteen days when he was picked up, and that he was scared when he was picked up because he “didn’t know what was going on” and he was afraid “maybe [the officers] were going to beat [him] up.” Finally, Aguilar-Ramos stated that he did not understand what was being told to him when the warnings were being read, and although he tried to learn how to obtain an attorney, the detective would not tell him anything.

Based on the above testimony, the trial court concluded that the prosecution had failed to prove by a preponderance of the evidence that Aguilar-Ramos had waived his Miranda rights knowingly and intelligently. Applying the “totality of the circumstances” test, Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), People v. Platt, 81 P.3d 1060, 1065 (Colo.2004), the trial court found that the defendant had not been sufficiently advised of his rights. The trial court relied in particular on Detective Lobato’s use of the Spanish word for “carry” rather than “remain” as to the right to remain silent, the detective’s failure to answer the defendant’s question regarding his right to an attorney, and the detective’s inability to accurately convey to the defendant the possibility that any incriminating information which Aguilar-Ramos provided could be used against him. Because the defendant had not knowingly and intelligently waived his rights prior to the interrogation, the trial court ruled that his incriminating statements made to Detective Lobato must therefore be suppressed. The People brought this interlocutory appeal challenging that ruling.

The People argue that Aguilar-Ramos at least “minimally understood” his Miranda advisement sufficiently so that, under the totality of the circumstances, he had knowingly and intelligently waived his rights. People v. Al-Yousif, 49 P.3d 1165, 1172 (Colo.2002). To support their argument, the People note that the defendant several times indicated his understanding by answering “yes” when asked if he understood the rights as explained and by signing the Spanish Miranda waiver. Thus, the People conclude that the preponderance of the evidence suggests that Aguilar-Ramos did in fact knowingly and intelligently waive his rights. We disagree with the People’s argument and therefore affirm the trial court’s order suppressing the defendant’s statements.

II. CONSTITUTIONAL FRAMEWORK & STANDARD OF REVIEW

It is well-established that an accused must be advised of his rights under the Fifth and Fourteenth Amendments prior to undergoing custodial interrogation. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. In particular, officers must inform a suspect that he has the right to remain silent, that if he waives his right to that silence anything he says may be used against him, that he has the right to have an attorney present, and that an attorney will be appointed free of charge if the suspect cannot afford an attorney. Id. A suspect will be deemed to have waived those rights only if the waiver is made voluntarily, knowingly, and intelligently based on the totality of the circumstances surrounding the interrogation. Moran, 475 U.S. at 421, 106 S.Ct. 1135; Platt, 81 P.3d at 1065. A statement obtained as a result of an invalid waiver may not be used against the defendant in a resulting criminal prosecution, but instead will be suppressed by the trial court. Miranda, 384 U.S. at 444, 86 S.Ct. 1602.

Where a defendant challenges the use of his incriminating statements on the grounds that his rights under Miranda were violated, the prosecution bears the burden of proving by a preponderance of the evidence that the defendant gave his Miranda waiver voluntarily, knowingly, and intelligently. Platt, 81 P.3d at 1065. A trial court must examine the “totality of the circumstances” surrounding an interrogation to determine first whether the waiver was a voluntary act and second whether the defendant “possessed] an awareness of both the nature of the right and the consequences of the decision to waive it” such that the waiver may be deemed knowing and intelligent. People v. Mejia-Mendoza, 965 P.2d 777, 780 (Colo.1998). In reaching its determination, the trial court must resolve “disputed facts,” and a reviewing court will not overturn such findings of historical fact so long as they are supported by competent evidence in the record. People v. Owens, 969 P.2d 704, 707 (Colo.1999); People v. Quezada, 731 P.2d 730, 732 (Colo.1987). However, the ultimate determination of whether a defendant did in fact validly waive his Miranda rights requires an application of the law to those facts and we review that conclusion of constitutional law de novo. People v. Al-Yousif, 49 P.3d 1165, 1169 (Colo.2002) (“[A]ppellate courts have an enhanced role in examining a trial court’s application of law to fact, particularly in the arena of constitutional rights.”); People v. Matheny, 46 P.3d 453, 462 (Colo.2002) (noting that “law application, which involves the application of the controlling legal standard to the facts established by the evidence and found by the trial court is a matter for de novo appellate review ... where constitutional rights are concerned”).

We have previously addressed the sufficiency of a waiver in the context of language barriers, and have reached various results depending on the circumstances of each case. Al-Yousif 49 P.3d at 1167 (overturning the suppression of a statement made by a Saudi native who had received Miranda warnings in English); Mejia-Mendoza, 965 P.2d at 778 (upholding the suppression of a statement made by a Spanish-speaking defendant based on errors in translation). While each result turns on the specific facts of the case, some guiding principles have emerged.

In Mejia-Mendoza, we upheld the suppression of a Spanish-speaking defendant’s statements where the interpreter mistranslated the Miranda advisement and made additional mistranslations between the defendant and the detective. Mejia-Mendoza, 965 P.2d at 781. There, while we recognized “that no translation is perfect,” we nevertheless required that “a person acting as an interpreter must be sufficiently capable of accurately expressing the substance of the suspect’s rights.” Id. at 781-82. Under the facts of that ease, we concluded that the interpreter’s linguistic deficiencies contributed to the defendant’s inability to adequately understand, and therefore knowingly and intelligently waive, his Miranda rights. Id. at 782. As such, suppression of his statement was appropriate. Id.

In Alr-Yousif, we expressly distinguished Mejia-Mendoza in overturning the suppression of the defendant’s statement. Al-Yousif 49 P.3d at 1172 n. 4. The trial court’s suppression order had been based on linguistic as well as cultural barriers to the defendant’s understanding of American constitutional rights, but we found that the defendant’s “rudimentary understanding” of the rights as read to him was sufficient to uphold his waiver. Id. at 1172. There, we noted that a “defendant need not understand every consequence of his decision to waive” and that a defendant’s cultural background “has limited relevance: it goes only to whether he understood his basic choices — not whether he understood the tactical advantages of each or the constitutional premise upon which they are based.” Id. at 1169-70. Thus, because the defendant’s language abilities allowed him to understand the basic nature of the rights as read to him, suppression of his statement was not warranted. Id. at 1172.

Viewing these cases together, while we have acknowledged the limited nature of understanding which must be proven to show a knowing and intelligent waiver, we have still required that the prosecution demonstrate that the police accurately communicate and that the defendant understand these “three precepts: (1) he did not have to talk, (2) he could have an attorney present, and (3) if he did talk, his statements could be used against him.” Id. at 1172; see also, e.g., People v. Jiminez, 863 P.2d 981, 984-85 (Colo.1993) (upholding the suppression of the defendant’s statement where the defendant suffered from a mental disability such that he functioned at a six-year-old level, had never attended school, and had limited vocabulary both in his native Kickapoo language and in Spanish, the language used for the interrogation). With these principles in mind, we turn to the instant case.

III. APPLICATION

The trial court, after considering the totality of the circumstances surrounding the custodial interrogation and the Miranda advisement, ruled that the prosecution had failed to meet its burden of proving, by a preponderance of the evidence, that the waiver was knowing and intelligent. We find ample support in the record for the trial court’s finding that the defendant was not adequately advised of and did not understand his Miranda rights, and therefore accept that finding for the purposes of our constitutional analysis. See People v. Owens, 969 P.2d 704, 707 (Colo.1999) (“The trial court’s findings of historical fact are entitled to deference by appellate courts and will only be overturned if they are not supported by competent evidence.”). Additionally, reviewing the trial court’s ultimate conclusion of law de novo, we agree that Aguilar-Ramos was not sufficiently advised of his rights under Miranda and, consequently, that his waiver could not have been knowing and intelligent.

Detective Lobato’s difficulties in communicating with Aguilar-Ramos were evident from the outset of the interview, when it took the detective eight attempts to learn his suspect’s name. In fact, as he later testified, the detective was aware of the linguistic barrier at the time of the interrogation and even sought assistance from other officers who were apparently unavailable at that time. Moreover, although the defendant frequently responded “yes” when asked if he understood his rights, he also interjected “yes” or “yeah” throughout the reading of the Miranda form, and at other inappropriate moments, such that his affirmation cannot be taken as a serious indicator of comprehension. When Aguilar-Ramos did attempt to learn more information about his right to an attorney, his question was either ignored or misunderstood altogether, and he was instead directed to indicate that he understood his rights because it was the detective’s “job to talk with all the people.” Finally, throughout the interrogation, it is evident from the disjointed nature of the questions and answers that each party frequently had no idea what the other was talking about. Thus, looking at the totality of the circumstances surrounding the interrogation, the defendant clearly did not understand his rights sufficiently to waive them, and that inability should have been recognized by Detective Lobato even from the beginning of their contact.

In upholding the trial court’s suppression order, we do not require that every bilingual effort between an officer and a suspect be perfect in order to withstand scrutiny. Indeed, we require only that a defendant “minimally understand” that he had the right to remain silent and to have counsel present and that anything he said could be used against him. Al-Yousif, 49 P.3d at 1172. Moreover, we recognize that the exclusion of statements where “there were no signs indicating any degree of confusion serves no purpose because there is nothing more the police could do, nor is there any objectionable police behavior.” Id. at 1170 (internal quotations omitted). However, where, as here, the police fail to accurately communicate to the defendant his basic rights under Miranda, and the defendant is therefore unable to understand those rights, any resulting waiver must be deemed constitutionally insufficient.

IY. CONCLUSION

Because the trial court’s findings that the defendant did not even minimally understand the rights as read to him are supported by competent evidence in the record, and the trial court applied the appropriate constitutional standard to those findings, we affirm the trial court’s suppression order.

      . Throughout this opinion, we will be using the English language translation of the interview transcript upon which the trial court relied.

      . The defendant did not argue that he experienced any sort of police intimidation or coercion such that his waiver was not a "voluntary act,” leaving only the issue of whether the waiver was ¡mowing and intelligent under Miranda. See Mejia-Mendoza, 965 P.2d at 780.