Opinion
Rehearing Denied June 12, 1973.
Page 278
Robinson-Litvak, P.C., William Hedges Robinson, Jr., Lakewood, for plaintiff-appellee.
Joseph W. Opstelten, Lakewood, for defendants-appellants.
ENOCH, Judge.
Max G. Thaete, plaintiff-appellee, initiated this quiet title action, and combined therewith claims against Conrad A. Nienhuser and his son, Gene Nienhuser, for injunctive relief and for damages for slander of title, trespass, and assault. Prior to trial, Alta H. Nienhuser, wife of Conrad, was joined as a defendant for purposes of the title determination. The Nienhusers, defendants-appellants, counterclaimed, asserting title to the property in dispute as owners in fee simple, claiming damages for slander of title and false imprisonment, and seeking injunctive relief. Trial was to the court and judgment was entered for Thaete.
I.
The Nienhusers contend that the court erred in dismissing their counterclaim without findings of fact or conclusions of law as required by C.R.Civ.P. 52.
A similar claim was made by the defendant in Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232, and our Supreme Court there stated:
'Defendant complains that the findings do not detail the trial court's reasons for refusing the defendant's counterclaim. In fact, those reasons are revealed by a reading of the part of the findings which grant plaintiff's complaint. The trial judge is not required to assert in detail the negative of every rejected proposition as well as the affirmative of those which he finds to be correct.'
In the case at hand the court made findings in support of its conclusion that title should be quieted in Thaete. It likewise made findings that the Nienhusers' claim of title was not valid. The court also found that one of the Nienhusers' witnesses had testified falsely to an issue which was material to their proof. As to the Nienhusers' counterclaim for damages, it was unnecessary for the court to make any findings, unles there was first a determination that the Nienhusers were the rightful owners of the property. Applying the rule of Uptime Corp., supra, the findings of the court in support of Thaete's claims, as well as those against the Nienhusers' claims, must be considered together to determine the sufficiency thereof. When so considered the findings were sufficient to support the dismissal of the counterclaim.
II.
The Nienhusers assert that the court erred in quieting title to the land in question in Thaete. We do not agree.
The evidence supports the finding that Thaete is the owner of the disputed property by virtue of a direct line of conveyances and possession by himself and his predecessors in title for more than eighteen years. The main thrust of the Nienhusers' argument is that they acquired rights superior to those of Thaete by virtue of their possession for seven years under color of title and payment of taxes pursuant to C.R.S.1963, 118--7--8. The court, however, found upon conflicting evidence that Thaete and his predecessor in title were in actual possession for more than eighteen years immediately preceding the initiation of this action. This finding defeats the Nienhusers' claim of seven years possession which was essential in the proof of their claim.
III.
The Nienhusers contend that there is insufficient evidence to support the trial court's judgment for damages for slander of title and trespass. We find no merit in this contention.
The court awarded plaintiff $500 for slander of itle and $340 for treapass. The evidence supports the findings that there was, in fact, slander of title and trespass, and the evidence also supports the amounts awarded. There is, however, error in the inclusion of Alta as one of the defendants liable for these damages. There was no evidence involving her in either of these claims, and it is clear from the court's findings made at the conclusion of the trial and the subsequent entry of judgment that it was not the intent of the court to have included her as one of the defendants liable on those amounts.
IV.
The Neinhusers further allege that the court erred in awarding exemplary damages in the amount of $2,000 and in ordering that Thaete could have body execution against Gene. We agree.
The law in Colorado is that in an appropriate case attended by wantonness or recklessness, the trier of fact may, in addition to awarding actual damages, include reasonable exemplary damages. C.R.Civ.P. 101(d); C.R.S.1963, 41--2--2. The evidence discloses that on December 30, 1970, when Thaete, which the aid of helpers and a tractor, was removing a fence erected by Conrad and Gene on the disputed property, Gene fired a rifle shot which struck the tractor. It is clear from the findings of the court announced orally at the conclusion of the trial and from the subsequent entry of judgment that, because Gene and Not his father had acted recklessly, the exemplary damages of $2,000 were ordered only against Gene for his assault on Thaete. The court, however, had made no finding that there was any actual damage resulting from this assault, and no compensatory damages were awarded. In the absence of an award of actual damages there can be no award of exemplary damages. Ress v. Rediess, 130 Colo. 572, 278 P.2d 183. The court's intent in the instant case was to isolate the exemplary damages to Gene's particular participation in the assault. Therefore, the actual damages resulting in awards for slander of title and trespass are not available to support the award for exemplary damages. Since there was no award for actual damages for the assault, the award of exemplary damages must be set aside. Consequently, the order for body execution against Gene must also fail.
Those portions of the judgment quieting title to the property in Max G. Thaete and awarding him $840 actual damages against Conrad A. Nienhuser and Gene Nienhuser are affirmed. Those portions of the judgment awarding damages against Alta H. Nienhuser and awarding exemplary damages and the body judgment are reversed. This case is remanded to the trial court with directions to modify the judgment in accordance with this opinion.
COYTE and SMITH, JJ., concur.