Opinion
June 4, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 170
Leo Gemma, Jr., Denver, for respondents-appellees.
Herbert W. DeLaney, Jr., P.C., James A. O'Neill, Denver, for respondent-appellant.
RULAND, Judge.
Russell P. Garvin appeals from that portion of a judgment which invalidates the lien of a deed of trust against certain real property owned by appellees John M. and Josephine Herrera. We affirm in part and reverse in part.
Denver Urban Renewal Authority (DURA) initiated the present case by a petition in condemnation to acquire all of lot 7 in block 6 of the Evans Park Estates in Denver. The petition was subsequently amended to condemn only the east 160 feet of lot 7. By separate pleadings, Garvin and the Herreras answered the amended petition claiming ownership of the condemned property. Pursuant to stipulation of the parties, the trial court determined that $1,500 was the market value of the condemned property, established procedures for deposit of funds and transfer of title to DURA, and reserved for later determination, pursuant to 1967 Perm.Supp., C.R.S.1963, 50--1--6(3), the disputed issue of ownership of the condemned property and disbursement of funds paid therefor.
Herreras then filed their motion requesting that the funds on deposit be disbursed to them. The record discloses that on the date scheduled for the hearing of this motion, a promissory note, deed of trust, and assignments thereof were introduced in evidence, the parties stipulated to certain facts, and the trial court heard arguments of counsel. Thereafter, the court entered written findings determining, Inter alia, that: (1) The only parties asserting rights to the funds on deposit were Garvin and the Herreras; (2) the Herreras were the record owners of the condemned property; (3) the Herreras executed a note and deed of trust to G. & M. Construction Company, which was ultimately assigned to Garvin, covering all of lot 7; (4) the unpaid balance on the note from August 11, 1964, through the date of the hearing was $2,000; (5) the lien of the deed of trust expired pursuant to C.R.S.1963, 118--5--12, prior to the date of the hearing; and (6) the condemnation petition was filed before the expiration date of the lien, and thus the lien was valid as of the date the condemnation action was commenced. The court therefore ordered that the deposited funds be disbursed to Garvin and that the remainder of lot 7 'not involved in this condemnation proceeding, shall be free and clear of any encumbrance created by . . . the note and deed of trust . . ..' (emphasis supplied)
Garvin contends that the trial court erred in extinguishing the lien of the deed of trust against that portion of lot 7 which was not condemned because this issue was not raised by the pleadings. The Herreras concede that this issue was not raised by the pleadings but suggest that, pursuant to C.R.C.P. 15(b), it was properly determined by express or implied consent of the parties. However, the only issues reserved by the trial court for determination related to ownership of and disbursement of funds paid for the condemned property. Moreover, before an amendment may be allowed pursuant to C.R.C.P. 15(b), it must appear that the parties intentionally tried issues not framed by the pleadings, See Clemann v. Bandimere, 128 Colo. 24, 259 P.2d 614, and there is no indication in the record that either Garvin or the Herreras consented or even understood that the validity of the lien against the balance of lot 7 was to be determined. Hence, there was no basis for entry of judgment on this issue. See Duke v. Pickett, 168 Colo. 215, 451 P.2d 288; Credit Investment & Loan Co., Inc., v. Guaranty Bank & Trust Co., 166 Colo. 471, 444 P.2d 633; 49 C.J.S. Judgments s 50.
Garvin also asserts the trial court erred in not granting a new trial in order that a cross-claim could be asserted against the Herreras to establish the validity of the lien. Garvin thus argues on the one hand that the trial court improperly entered judgment on an issue not before it and on the other hand that the trial court abused its discretion in not granting a new trial so that he could assert a cross-claim in order to resolve this issue.
The denial of a new trial was not error. A trial court does not abuse its discretion by refusing to reopen a case after judgment in order to determine an issue which was neither framed by the pleadings nor tried by the parties. See McKinley v. Denver & Rio Grande Western R.R. Co., 119 Colo. 203, 201 P.2d 905; Haffke v. Linker, 30 Colo.App. 76, 489 P.2d 1047.
That portion of the judgment which extinguishes the lien of Garvin's deed of trust against the uncondemned portion of lot 7 is reversed; the balance of the judgment is affirmed.
PIERCE and SMITH, JJ., concur.