Opinion
April 29, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
David I. Leinsdorf, Crested Butte, for plaintiffs-appellants.
Klingsmith, Russell, Angelo & Wright, Wyatt B. Angelo, Gunnison, for defendant-appellee.
ENOCH, Judge.
Plaintiffs appeal from a judgment dismissing their amended complaint prior to trial. We reverse.
On August 2, 1973, plaintiffs filed a complaint for the recovery of a real estate commission and for damages. Defendant-appellee, Hattie June Smith, was the seller of the property in question and James and Donna Young were the buyers. The original complaint alleges nine claims which set forth alternative theories of recovery in contract, unjust enrichment, equitable estoppel, fraud, conspiracy, and interference with a contract. By stipulation, the claims against the Youngs were dismissed, and they are no longer involved in this case.
Defendant Smith did not file a responsive pleading but moved to dismiss the complaint; on November 29 that motion was granted. Plaintiffs moved for reconsideration of this order and reinstatement of the complaint or in the alternative that the court grant leave to amend, and tendered an amended complaint. The amended complaint deleted the claims originally made against the Youngs and the claim of conspiracy, but otherwise did not change the claims initially asserted against defendant Smith. On February 25, 1974, the court denied both motions. Reversing itself, the court subsequently ordered reinstatement of the case and allowed plaintiffs to file their amended complaint. However, on July 29, 1974, the court entered judgment dismissing the amended complaint for the same reasons that the original complaint had been dismissed, i.e., that the separate claims were, in effect, contradictory and self defeating.
C.R.C.P. 8(e)(2) provides that a party may plead 'as many separate claims or defenses as he has regardless of consistency . . ..' It is sufficient to state a claim if plaintiff is entitled to relief under any 'theory.' Hutchinson v. Hutchinson, 149 Colo. 38, 367 P.2d 594; Spomer v. City of Grand Junction, 144 Colo. 207, 355 P.2d 960; Bridges v. Ingram, 122 Colo. 501, 223 P.2d 1051.
It was error to have dismissed the amended complaint which superseded the original complaint. Though the claims may well be based on inconsistent theories, that alone is not sufficient to justify dismissal. C.R.C.P. 8(e)(2).
Judgment is reversed and the cause is remanded for reinstatement of the amended complaint.
SMITH and KELLY, JJ., concur.