Schaffer, P.C. v. Sullivan, P.C

Full title: Joel L. Schaffer, P.C., a Colorado professional corporation, and Joel L…

Court: Colorado Court of Appeals. Division V

Date published: Dec 17, 1992

844 P.2d 1327 (Colo. App. 1992)

Opinion

No. 92CA0480

Decided December 17, 1992.

Appeal from the District Court of Boulder County Honorable Roxanne Bailin, Judge

Cooper Kelley, P.C., Thomas B. Kelley, for Plaintiffs-Appellants.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, for Defendants-Appellees Christopher M. Sullivan, P.C., a Colorado professional corporation, Christopher M. Sullivan, an individual.

Buchanan, Gray, Purvis Schuetze, P.C., Glen F. Gordon, for Defendant-Appellee Marina Bonneville.

Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, James F. Carr, Assistant Attorney General, Robin R. Rossenfield, Assistant Attorney General, for Amicus Curiae Colorado Board of Dental Examiners. Wilcox, Ogden Cox, P.C., Ralph Ogden, for Amicus Curiae The Colorado Trial Lawyers Association.

Opinion by JUDGE HUME.

Plaintiffs, Joel L. Schaffer, P.C., a Colorado professional corporation, and Joel L. Schaffer, individually, appeal from the trial court's order vacating a previously issued ex parte temporary restraining order and denying plaintiffs' motion for preliminary injunctive relief against defendants, Christopher M. Sullivan, P.C., a Colorado professional corporation, Christopher M. Sullivan, individually, and Marina Bonneville. We affirm.

This case arises from an underlying suit for dental malpractice brought by plaintiff Bonneville through her attorney Sullivan and his professional corporation against Schaffer and his professional corporation. After the malpractice action was filed, the parties participated in a settlement conference conducted by an independent mediator. Terms of settlement were discussed during mediation, but no settlement agreement was reached during those proceedings.

Subsequently, defendant served an offer of settlement for $60,000 on counsel for plaintiffs, pursuant to the provisions of § 13-17-202, C.R.S. (1992 Cum. Supp.). Counsel for plaintiffs responded by serving a written counter-offer of settlement for $50,000, which was accepted by defendants. Judgment was subsequently entered thereupon pursuant to the provision of § 13-17-202(3), C.R.S. (1992 Cum. Supp.).

No confidentiality or non-disclosure agreement was reached by the parties prior to entry of the monetary judgment, although the parties did continue to negotiate the terms of such an agreement both before and after the money judgment was satisfied. When those negotiations broke down, plaintiff commenced this action seeking an injunction to prevent defendants from disclosing the settlement, its terms, and other confidential matters.

An ex parte temporary restraining order was issued pursuant to C.R.C.P. 65(b) upon commencement of the action. That order was subsequently dissolved, and plaintiffs' motion for preliminary injunction was denied when the trial court found, after holding a hearing, that little or no reasonable probability of success on the merits of the plaintiffs' claims had been demonstrated.

Plaintiffs appealed to this court, and we referred the case to the Supreme Court pursuant to § 13-4-110, C.R.S. (1987 Repl. Vol. 6A) to determine the question of proper jurisdiction. The Supreme Court declined to accept a transfer of jurisdiction.

A.

As a threshold matter, we address defendants' motion to dismiss the appeal based upon their contention that, because a ruling on a motion for a preliminary injunction is not a final judgment, this court lacks jurisdiction over the subject matter of this action. We disagree.

It is not clear whether this court has initial statutory jurisdiction, pursuant to § 13-4-102(1), C.R.S. (1987 Repl. Vol. 6A), over interlocutory rulings in injunction proceedings because they are not final judgments. See Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo. 1982). See also Hyman Co. v. Velsicol Corp., 119 Colo. 121, 201 P.2d 380 (1948). But see City of Leadville v. Leadville Sewer Co., 47 Colo. 118, 107 P. 801 (1909).

Direct appeals as of right were strictly limited to final judgments in 1911. Colo. Sess. Laws 1911, ch. 6 § 6 at 11, later codified as Compiled Laws, Code of Civil Procedure, ch. 38, § 425 (1921). However, in 1939, anticipating the promulgation and adoption of the Colorado Rules of Civil Procedure, the General Assembly initially enacted the predecessor to § 13-2-108, C.R.S. (1987 Repl. Vol. 6A), which provided, among other things, for the repeal of all existing laws in conflict with such rules. See Colo. Sess. Laws 1939, ch. 80 § 1 at 264.

In 1941, the Colorado Supreme Court adopted the substance of C.A.R. 1(a)(3) which permitted direct appellate review of rulings on preliminary injunctions. See 35 C.S.A. (1941 Repl. Vol. I), Rule 111(a)(3). The adoption of such rules is expressly authorized by the Colo. Const. art. VI, § 2, and by the 1939 statute.

Therefore, the previously existing requirement of finality for appellate review pursuant to C.L. § 425 was nullified because it conflicted with C.A.R. 1(a)(3) which provided a direct appeal from a preliminary injunction ruling to an appellate court with proper jurisdiction. See Marco Lounge, Inc. v. Federal Heights, 625 P.2d 982 (Colo. 1981) (fn. 2). Accordingly, since a direct appeal from a ruling granting or denying a preliminary injunction is available as a matter of right under a Supreme Court rule promulgated pursuant to statutory and constitutional authority, only the question as to which appellate court should exercise jurisdiction remains.

The General Assembly has expressly conferred authority upon the Colorado Supreme Court to determine summarily and conclusively any issue as to which of the two appellate courts has and should exercise appellate jurisdiction. See § 13-4-110(1)(a), C.R.S. (1987 Repl. Vol. 6A).

Here, because this court referred the question of jurisdiction to the Supreme Court and because that court has declined to exercise jurisdiction, the appeal of right cannot now be dismissed. See § 13-4-110(3), C.R.S. (1987 Repl. Vol. 6A).

Thus, we conclude that we have subject matter jurisdiction over this appeal by virtue of the Supreme Court's refusal to accept transfer. Accordingly, we deny defendants' motion to dismiss.

B.

Plaintiffs also contend that the trial court erred in refusing to admit parol evidence as to the terms of the settlement agreement. We disagree.

Plaintiffs' counsel admitted, both in his affidavit in support of the motion for temporary injunction and in argument before the trial court, that no agreement had been reached concerning confidentiality or non-disclosure prior to defendants' acceptance of the counter-offer for monetary settlement. Accordingly, when judgment entered pursuant to that settlement agreement, no confidentiality agreement was incorporated therein, either expressly or by implication.

Thus, the trial court's findings that the written agreement as incorporated in the judgment was complete, unambiguous, and that the integrated document contained the entire agreement of the parties, was supported by evidence and by plaintiffs' admission. And, in the absence of any alleged ambiguity or lack of completeness of the written agreement, parol evidence was not relevant or material to any issue to be decided, and its admission could not have affected the result of the proceeding.

We also reject plaintiffs' contention that injunctive relief is required in order to protect confidential information obtained by discovery. We find nothing in the record to indicate that any confidential information was obtained by defendants' pursuit of discovery either in this case or in the underlying case.

The order denying preliminary injunction is affirmed and the cause is remanded to the trial court for further proceedings on the complaint.

CHIEF JUDGE STERNBERG concurs.

JUDGE JONES dissents.