Opinion
Feb. 19, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 781
Elliott & Greengard, Lawrence D. Blackman, Denver, for plaintiff-appellant.
Hoffman, Goldstein, Armour & Lonnquist, P.C., Richard C. Lonnquist, Denver, for defendant-appellee.
RULAND, Judge.
Plaintiff, Granite State Insurance Company, appeals from a judgment dismissing the first claim for relief in its complaint. We reverse and remand the case for further proceedings.
For its first claim, Granite alleged the following sequence of events. On April 1, 1972, defendant, Ray L. Carter, negligently operated a motor vehicle so as to cause it to collide with a vehicle owned by the City of Thornton. A passenger in the City's vehicle at the time of the collision incurred medical expenses, pain and suffering, and loss of wages in the sum of $4,500. As insurance carrier for the City, Granite paid the passenger $4,500 and then sought judgment against Carter in that amount as subrogee of the City's claim.
In the second claim, Granite alleged that Carter executed a promissory note to Granite in the amount of $442.67 payable in installments and that Carter was delinquent to the extent of $132.67. Judgment was requested for the amount of the delinquency. Carter answered and also filed a motion for summary judgment as to the first claim on the ground that the promissory note was executed in consideration of a release of all claims of Granite against Carter.
The instrument at issue is captioned 'Promissory Note,' and insofar as relevant here, provides that Carter 'has entered into an agreement' with Granite, as subrogee of the City of Thornton, to pay Granite $442.67 'in regular weekly payments of $10.00 For damages arising from an automobile accident which occurred on or about 4--1--72 . . ..' (emphasis supplied) Both the claims adjuster and Carter signed the 'promissory note.'
Granite filed an affidavit executed by its claims adjuster in opposition to the motion for summary judgment. The affidavit stated that the promissory note was executed only to reimburse Granite for payment to the City of its property damage claim and that it was not the intent of Granite to give a general release of all claims. Further, at the time the promissory note was signed, Granite was not aware that the passenger in the City vehicle intended to file a claim under the 'uninsured motorist' provisions of Granite's policy, and such a claim was not made until after the note had been executed.
Carter filed a counter-affidavit in support of his motion for summary judgment. This affidavit states that the promissory note was prepared by Granite and that Carter understood it to constitute a release of all claims.
Following argument, the trial court granted the motion and dismissed the first claim. Granite filed a motion for reconsideration, which was denied, and then perfected this appeal. While the appeal was pending, Granite obtained an order of the trial court dismissing its second claim.
We first resolve the jurisdictional issue raised by Carter in urging that the appeal should be dismissed. Carter contends that the motion for reconsideration firled by Granite is not proper when judgment is entered pursuant to C.R.C.P. 56. Carter therefore concludes that the notice of appeal was not timely because although it was filed within 30 days after the trial court's ruling on the motion, it was not filed within 30 days after the entry of summary judgment. We disagree.
While Granite's motion is captioned a motion 'for reconsideration,' it is the equivalent of a motion for new trial. Although a motion for new trial is not required when judgment is entered pursuant to C.R.C.P. 56, See C.R.C.P. 59(h), a party may file such a motion if he so chooses. Moreover, the filing of such a motion suspends the period for filing the notice of appeal until the motion is ruled upon, so that a notice of appeal is timely if filed within 30 days from the date any motion for new trial is denied. Hence, the notice of appeal was timely in this case. See Denver v. Board of Adjustment, 31 Colo.App. 324, 505 P.2d 44.
In granting summary judgment, the trial court relied upon the reference in the note to payment for 'damages arising from an automobile accident,' and concluded that since Granite prepared the note, it must be construed as a release on the basis that a contract is construed against its author.
Granite first contends that, as a matter of law, the promissory note may not be construed as a release absent a specific reference to a discharge of all liability. We disagree. Carter May have executed the note in consideration of an oral promise by Granite to discharge him from all liability for the accident, and we find no legal requirement that a discharge of liability be in writing. Cf. Wilder v. Baker, 147 Colo. 92, 362 P.2d 1045. However, we do agree with Granite that entry of summary judgment in this case was improper because the affidavits raise material issues of fact as to the purpose and legal effect of the note which are not resolved by a review of the document itself or by the rule that a contract is construed against the author.
The affidavit filed by Granite indicates that the document was not intended as a release and the affidavit of Carter controverts that contention. The affidavit suggests that even if the document be construed as a release, it was based upon a mutual mistake of fact, namely lack of knowledge of the passenger's claim. However, Carter's affidavit must be interpreted as asserting that the note was for a release of all claims, whether known or unknown. Accordingly, the purpose and effect of the note can only be determined by examination of circumstances surrounding its execution, including the discussions of the parties relative thereto, as well as the language of the instrument. See Sanchez v. George Irvin Chevrolet Co., 31 Colo.App. 320, 502 P.2d 87.
The summary judgment is reversed and the cause remanded with directions for further proceedings not inconsistent with the views herein expressed.
COYTE and SMITH, JJ., concur.