Opinion
March 16, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 991
William A. Black, Denver, for plaintiffs in error.
Atler, Haligman & Atler, Edward Haligman, Denver, for Van Schaack & Co., Leonard M. Schack and John P. Mizicko.
Holme, Roberts & Owen, Peter H. Holme, Jr., Denver, for Kansas City Title Ins. Co. and Colorado Title Co.
Morrato, Gueck & Colantuno, James J. Morrato, Denver, for Sheridan Shopette, Inc., James K. Horton, Dorothy M. Horton, Loran E. Clarida and Ellen L. Clarida.
No appearance for Connecticut General Life Ins. Co. and Fernando J. Serafini, Public Trustee of the City & County of Denver.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Prior to the transfer to this Court, the Colorado Supreme Court dismissed Kansas City Title Insurance Company, Colorado Title Company, and The Connecticut General Life Insurance Company from this action.
Plaintiffs brought an action for fraud, deceit, and unlawful concealment, arising from their purchase of a shopping center in Denver from defendants who owned and operated Sheridan Shopette, Inc. Defendant Van Schaack & Company was Sheridan Shopette's real estate broker.
The controversy centers around a paved strip of land adjoining the shopping center on the west. At the time of the sale and purchase, this land had parking blocks erected thereon and was being used by Sheridan Shopette as a parking lot for automobiles, but it was, in fact, the property of the Colorado State Highway Department. Plaintiffs allege: that this fact was not disclosed by the sellers or their agent; that they were deceived by appearances; and that the sellers failed to disclose the fact that the same was not a part of the shopping center.
Trial was to the court which ruled that the facts established by the evidence did not support plaintiffs' allegations and granted defendants' motion to dismiss. Plaintiffs now question the trial court, as finder of fact, and allege that the court erred in ruling that plaintiffs failed to discharge their burden of proof. In granting defendants' motion to dismiss, the court ruled as follows:
'In the first place, neither of the plaintiffs availed themselves of the means to determine the exact situation as to concealment. There was no proof here that the Defendants' agents at Van Schaack had actual knowledge of the facts alleged to have been concealed. * * * The Plaintiffs got the entire property which the contract provided for. It was described not only by lots and subdivisions but by metes and bounds. Not only did the contract describe it, but the deed which was actually issued conformed exactly to the contract and gave the Plaintiffs exactly the amount of property that they contracted to buy. * * * I am clearly convinced, and I so find, that the Plaintiffs have failed to discharge the burden of proof to establish by any kind of evidence, either clear and convincing or any other kind--even by a preponderance--the allegations of the Complaint accusing these Defendants of cheating them by fraudulent representations or by concealment of facts which they were under a duty to disclose. * * *'
In Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284, a case strikingly similar in its facts to the one at bar, the Colorado Supreme Court stated:
'It is true that when reviewing a dismissal entered at the conclusion of the plaintiffs' evidence in a jury trial, the rule urged by the plaintiffs that the evidence must be viewed in the light most favorable to the plaintiffs is applicable. Eberle v. Hungerford, 130 Colo. 167, 274 P.2d 93; Huddleston v. Ingersoll Co., 109 Colo. 134, 123 P.2d 1016. But when the trial is to the court, as it was here, the trial court is the finder of the fact and may make its findings and render judgment against the plaintiffs at the close of the plaintiffs' case. Rule 41(b)(1), R.C.P.Colo. The question on review of such action is not whether the plaintiffs made a prima facie case, but whether a judgment in favor of the defendant was justified on the plaintiffs' evidence. If reasonable men could differ in the inferences and conclusions to be drawn from the evidence as it stood at the close of the plaintiffs' case, then we cannot interfere with the findings and conclusions of the trial court. Blair v. Blair, 144 Colo. 442, 357 P.2d 84; Niernberg v. Gavin, 123 Colo. 1, 224 P.2d 215.'
Following the rule in Teodonno, we hold that the trial court properly dismissed plaintiffs' action.
Judgment is affirmed.
COYTE and DWYER, JJ., concur.