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holding that the choice of litigation procedures lies within the scope of an attorney's implied authority, and with regard to such matters the client is bound by the attorney's actions
Summary of this case from People v. RiddleOpinion
Rehearing Denied Dec. 18, 1974.
Page 953
Shrimpton & Hume, Worth F. Shrimpton, Craig, for plaintiffs-appellees.
Calvert & Calvert, David R. Calvert, Denver, for defendants-appellants.
ENOCH, Judge.
Robert and Helen Calder, defendants-appellants, appeal from a judgment awarding actual and exemplary damages to George and Georgia Herod, plaintiffs-appellees, for injuries resulting from defendants' wrongful construction of a ditch. The other named plaintiffs-appellees, though parties to this appeal, are not directly involved in the issues before this court. We affirm the judgment of the trial court.
Plaintiffs and defendants are owners of adjacent parcels of land near Craig, Colorado. Because of the lay of the land, heavy rains and spring run-offs have frequently flooded all of the parcels. After a severe flood in 1967 defendants filled and leveled portions of their property, thereby obstructing a watercourse to the west of both plaintiffs' and defendants' property. Defendants constructed a new ditch in 1970 to channel water south and southeast of their property. This so-called 'Calder Ditch' was never completed beyond the southern boundary of defendants' property, allegedly because an adjoining landowner refused to grant permission to continue the ditch across his land. In its uncompleted state the Calder Ditch ended abruptly at the boundary between defendants' and Herods' property, with the open end of the ditch pointing toward the Herods' home. The Herods dammed the mouth of the Calder Ditch in an attempt to direct its flow into a series of existing ditches circumventing their property. During a heavy rainstorm in 1971, the dam constructed by the Herods was washed out and water from the Calder Ditch flooded their basement and land. This suit for damages followed.
After a trial to the court, defendants filed a pro se motion for new trial and a motion to vacate the judgment under C.R.C.P. 60(b), both of which were denied. The motions alleged that acts and omissions of their trial counsel (who was not counsel on appeal) deprived them of a fair trial. We have considered all of the allegations made against counsel relative to his conduct of the trial, and we find no indication in the record of any impropriety or lack or diligence by trial counsel. The choice of litigation procedures lies within the scope of an attorney's implied authority, and with regard to such matters the client is bound by the attorney's actions. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370.
A more serious allegation made by defendants is that trial counsel entered into a stipulation which substantially weakened their defense to the action. Counsel for both parties agreed that prior to construction of the Calder Ditch, flood waters ran south-southwest. In effect, the stipulation admitted that defendants had altered the natural flow of run-off waters. However, in light of the evidence presented, this stipulation could not have materially affected the outcome of the trial. Whether or not defendants changed the course of the water, they were liable to plaintiffs because they 'knew or should have known that this was an area subject to flooding, and that during times of flooding it was reasonably foreseeable that injury could occur to adjacent property as a result of the maintaining of a dangerous man made condition upon the land . . ..' Moore v. Standard Paint & Glass Co., 145 Colo. 151, 358 P.2d 33. It is indisputable that the unfinished ditch constituted a dangerous artificial condition.
Defendants also contend that damages to the Herods' property resulted from an act of God, not from the negligence of defendants. The 1971 rainstorm was admittedly severe. However, the 'act of God' defense is available only when defendants can prove that injury resulted Solely from natural causes. Moore v. Standard Paint & Glass Co., Supra; Barlow v. North Sterling Irrigation District, 85 Colo. 488, 277 P. 469. The injury in this case was not caused solely by the rainstorm but was contributed to by defendants' construction of the ditch.
Finally, defendants argue that the evidence was insufficient to support the award of actual and punitive damages. The record contains adequate evidence to support both awards, and thus the trial court's determination will not be disturbed on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
Judgment affirmed.
SILVERSTEIN, C.J., and RULAND, J., concur.