Opinion
June 9, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 709
Michael M. Laden, Norton Frickey, Denver, for plaintiffs in error.
Clarence L. Bartholic, Denver, for defendant in error, Johnson-Anderson Mortgage Co.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as in the trial court. The Smiths will be referred to as plaintiffs, defendant Serafini as the Public Trustee, and defendant Johnson-Anderson Mortgage Company as the Mortgage Company.
Plaintiff started this action under R.C.P.Colo. 65 for a temporary restraining order and a preliminary injunction to stop a foreclosure action initiated by the Mortgage Company through the Public Trustee.
In 1965 plaintiffs purchased the property in question and assumed the obligation of payment of the note held by the Mortgage Company which was secured by a deed of trust on the property purchased. Plaintiffs were unable to make their July 1, 1965 payment on the note. Subsequently, the August and September payments were not made. There is a conflict in the testimony as to whether the Mortgage Company agreed to accept the July and August payments in August and as to whether late tender by plaintiffs was made. The Mortgage Company did refuse a tendered payment in September for the months of July, August and September. The issue was further complicated by the fact that the IBM department of the Mortgage Company continued to send plaintiffs payment notices in September and October after the Mortgage Company had refused at least one tendered payment and after plaintiffs had been advised that foreclosure proceedings had been started. Thus the plaintiffs were faced with inconsistent action by the Mortgage Company. On the one hand, it demanded payment, while on the other hand, it refused to accept tender. However, the evidence is undisputed that due to the intervention of the F.H.A., the Mortgage Company agreed to forebear until October 5, 1966, giving plaintiffs notice that all delinquent payments plus the fees then expended for attorney's services would be accepted through that date. This cured any defects which may have resulted from the inconsistent action of the Mortgage Company. Payment was not made then and foreclosure action was started October 18, 1966.
At the conclusion of the plaintiffs' evidence, the Mortgage Company moved that the complaint be dismissed for failure to prove that there was no default and that plaintiff had no speedy and adequate remedy at law or that plaintiffs would suffer irreparable damage. The trial court granted the motion and we agree with the conclusion of the court.
Plaintiffs allege two errors, the first of which is divided into three parts and will be considered in the order stated.
I
Did the trial court err in granting the motion to dismiss?
A. Plaintiffs claim the action could not be dismissed as to the Public Trustee. We find no merit to this argument. The Public Trustee was in default since no appearance was made on his behalf and no pleadings were filed. However, the record clearly shows that counsel for plaintiffs and the Mortgage Company agreed at the hearing to proceed without the Public Trustee. The mere fact that a party is in default does not preclude the court from granting a dismissal of the action as to that party, particularly where as here, the court found that plaintiffs were not entitled any relief against the Mortgage Company and that the foreclosure should not be enjoined.
B. Plaintiffs claim that their evidence presented a prima facie case for the issuance of a preliminary injunction as the preponderance of the evidence disclosed that plaintiffs were not in default and that the Mortgage Company was estopped from claiming any default.
This was a trial to the court and the plaintiffs have applied the wrong test as to the sufficiency of the evidence. Plaintiffs must present more than just a prima facie case to survive a motion to dismiss at the conclusion of plaintiffs' evidence. The Supreme Court stated in Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284:
'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.' The issue of estoppel is not properly before this court, having been raised by the plaintiffs for the first time in this appeal. Estoppel must be affirmatively pleaded and should have been a part of the original pleadings. R.C.P.Colo. 8(c). Such matters also are not subject to review if not made a part of the motion for a new trial as required by R.C.P.Colo. 59(f). Pinello v. Kurtz, 138 Colo. 351, 333 P.2d 624.
C. The plaintiffs further claim that they established that there was no adequate or speedy remedy at law and that the trial court's ruling to the contrary was error. We find no evidence in the record to support plaintiffs' contention. This lack of a remedy at law entitles a party to apply for an injunction, but does not, in and of itself, justify the granting of one. Having failed to sustain the allegations of their complaint, they were not entitled to any further remedy except their statutory right of redemption.
II
The second alleged error is that the trial court abused its discretion in denying plaintiffs' motion for new trial for not complying with a local court rule and R.C.P.Colo. 59(a). The local court's rule is not set forth in the record or in the briefs so we will not consider it in our determination. The record does disclose, as the trial court ruled, that the plaintiffs filed no brief in support of their motion to dismiss.
The purpose of a supporting memorandum brief is for the benefit of the trial court in its own review and evaluation of the case and the motion for new trial. We find no abuse of discretion on the part of the trial court in denying plaintiffs' motion for failure to file such a brief.
The judgment of the trial court is affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.