"3. Whether it is appropriate at the conclusion of the Applicant's case-in-chief to enter an order of dismissal pursuant to Rule 41(b) C.R.C.P. upon an issue that was never specifically raised in the Pre-Trial Order nor reasonably anticipated by the Applicant. "4. Whether it is the burden of the Applicant in a water court proceeding to have established a prima facie case at the conclusion of its case-in-chief or whether the court can made [sic] factual determinations based upon disputed evidence and enter a dismissal in accordance with Rule 41(b) C.R.C.P. "5. Whether the trial court properly applied the `can and will' standard of C.R.S. § 37-92-305(9)(b) to the facts and circumstances of this case. "6. Whether the holdings in Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966) and Teodonno v. Bachman, 158 Colo. 1, 424 P.2d 284 (1965) are applicable in a water court proceeding at the conclusion of the applicant's case-in-chief." However, in its brief to this court, PSCo condensed and combined issues four and six and issues five and one for purposes of discussion. Because these sets of issues are interrelated we also choose to consider them jointly.
Accordingly, where the court is the trier of fact and a party brings a Rule 41(b)(1) motion to dismiss, the standard is not whether the plaintiff established a prima facie case, but whether judgment in favor of defendant is justified on the evidence presented. Teodonno, 158 Colo. at 4, 404 P.2d at 285; Rowe v. Bowers, 160 Colo. 379, 381, 417 P.2d 503, 505 (1966). Consequently, the water court is not required to accept evidence as true, but may determine the facts and enter judgment against the plaintiff.
Accordingly, where the court is the trier of fact and a party brings a Rule 41(b)(1) motion to dismiss, the standard is not whether the plaintiff established a prima facie case, but whether judgment in favor of defendant is justified on the evidence presented. Teodonno, 158 Colo. at 4, 404 P.2d at 285; Rowe v. Bowers, 160 Colo. 379, 381, 417 P.2d 503, 505 (1966). Consequently, the water court is not required to accept evidence as true, but may determine the facts and enter judgment against the plaintiff.
Under C.R.C.P. 41(b)(1), the standard is whether judgment in favor of the defendant is justified on the evidence presented, not whether the plaintiff established a prima facie case, citing Teodonno v. Bachman 158 Colo. 1, 404 P.2d 284 (1965). Thus, the trial court sitting as trier of fact may determine the facts and render judgment against the plaintiff, citing Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966). In Teodonno, id at 285, the Supreme Court clarified the application of Rule 41(b) when a court sits as the trier of fact. There the Court stated: "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," citing Blair v. Blair, 144 Colo. 442, 357 P.2d 84 (1960); Niernberg v. Gavin, 123 Colo. 1, 224 P.2d 215 (1950).
We are aware that in some states and the federal system the court may weigh the evidence and decide the case according to a preponderance of the evidence after completion of the plaintiff's evidence in a non-jury case. Fed.R.Civ.P. 41(b); see e.g., Eddy v. Gallaway, 89 Cal.Rptr. 491, 494, 11 Cal.App.3d 185, 190 (1970); Rowe v. Bowers, 160 Colo. 379, 381, 417 P.2d 503, 504-05 (1966); Roemer v. Green Pastures Farms, Inc., 97 Idaho 591, 592-93, 548 P.2d 857, 858-59 (1976); City of Evanston v. Ridgeview House, Inc., 64 Ill.2d 40, 57, 349 N.E.2d 399, 407-08 (1976); Union National Bank Trust Co. v. Acker, 213 Kan. 491, 494, 516 P.2d 999, 1002 (1973). Defendant urges that we follow that rule.
We have recently pointed out that where the trial is to the court the rule contended for by the plaintiffs is not applicable. Where the trial judge is the fact finder, he may, if the evidence taken during the plaintiffs' case is in conflict, or reasonable men could differ in the inferences to be drawn therefrom, make his determination of the fact and the inferences to be drawn therefrom without requiring the defendant to present the same or additional evidence. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503; Hoeprich v. Cummiskey, 158 Colo. 365, 407 P.2d 28; Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284. Here the evidence presented in the plaintiffs' case was sharply in conflict. We cannot say that the trial court erred as a matter of law when he stated that on the basis of the record before him he was not convinced that the grounds alleged in the affidavit in support of the writs of attachment were sustained.
Thus, the trial court sitting as trier of fact may determine the facts and render judgment against the plaintiff. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966). A.
The standard for the trial court to follow in ruling on such a motion is whether, in light of all the evidence, a judgment for defendant should be entered. See Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966); American National Bank v. First National Bank, 28 Colo. App. 486, 476 P.2d 304 (1970). The trial court is afforded wide discretion in determining whether a motion for dismissal under C.R.C.P. 41(b) should be granted. Its ruling in this regard will not be disturbed on appeal in the absence of a showing that the findings and conclusions of the trial court are so manifestly against the weight of evidence as to compel a contrary result.
Therefore the trial court's ruling is binding upon this court. See Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503. [6] A court may grant both specific performance and damages where specific performance alone will not give complete relief. See Gregerson v. Weatherly, 160 Colo. 414, 417 P.2d 769. Since here the damages granted against Rocky Mountain were only for lost profits from the date the certificate would have been transferred had the contract been complied with, to the date of trial, the judgment awarding damages will remain unaffected by the reversal of the judgment denying specific performance.
Trial was to the court. It was free to weigh the evidence and determine what, if any, credibility or weight should be attached to plaintiff's evidence, at the close of her case. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503. The evidence of an assignment is not so overwhelming as to require a finding in plaintiff's favor on this point.