Southern Cross Ranches v. JBC Agricultural Management

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 18, 2019

2019COA58

No. 18CA0161, Southern Cross Ranches v. JBC Agricultural
Management — Civil Procedure — Summary Judgement

A division of the court of appeals concludes that under

C.R.C.P. 56, if the nonmoving party fails to oppose a summary

judgment motion, a trial court is not required to review the entire

record on file for factual disputes before ruling on a summary

judgment motion. The division further concludes that in this case

the trial court abused its discretion by making inconsistent rulings,

first denying and then granting summary judgment, without

explanation.
COLORADO COURT OF APPEALS 2019COA58

Court of Appeals No. 18CA0161
Weld County District Court No. 16CV30552
Honorable Todd L. Taylor, Judge

Southern Cross Ranches, LLC, and Ranch Management, LLC,

Plaintiffs-Appellees,

v.

JBC Agricultural Management, LLC,

Defendant-Appellant,

and

Crystal River Meat, LLC,

Third-Party Plaintiff-Appellant.

JUDGMENTS REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE WEBB
Román and Freyre, JJ., concur

Announced April 18, 2019

Allen Vellone Wolf Helfrich & Factor P.C., Patrick D. Vellone, Jordan Factor,
Rachel A. Sternlieb, Lance J. Henry, Denver, Colorado, for Plaintiffs-Appellees

Chipman Glasser, LLC, David S. Chipman, John M. Bowlin, Denver, Colorado,
for Defendant-Appellant and Third-Party Plaintiff-Appellant
¶1 Everyone would agree that under C.R.C.P. 56, summary

judgment is proper only in the absence of any disputed issue of

material fact. But if the nonmoving party fails to oppose a

summary judgment motion, must the trial court examine the entire

record on file for factual disputes or may the court limit its analysis

to materials cited in the motion? This question is unresolved in

Colorado and had divided the federal courts until a 2010

amendment to Fed. R. Civ. P. 56(c)(3), which now provides, “[t]he

court need consider only the cited materials, but it may consider

other materials in the record.”

¶2 We conclude that a trial court is not required to review the

entire record on file for factual disputes before ruling on a summary

judgment motion. Even so, we further conclude that in this case

the trial court abused its discretion by making inconsistent rulings,

first denying and then granting summary judgment, without

explanation. Therefore, we reverse the summary judgments and

remand for further proceedings.

I. Background and Procedural History

¶3 JBC Agricultural Management, LLC, entered into separate

contracts to buy cattle from plaintiffs Southern Cross Ranches,

1
LLC, and Ranch Management, LLC (collectively, sellers). In turn,

JBC contracted to sell the cattle to Crystal River Meat, LLC, its

subsidiary (collectively, buyers). Sellers brought this action alleging

that JBC had breached the contracts by failing to make any

payments, starting with an initial payment due in October 2015.

JBC counterclaimed alleging, as relevant here, that after the initial

payment deadlines had been extended, sellers breached the

contracts by failing to certify, source, feed, and care for the cattle as

required by the contracts, and then by failing to provide adequate

assurances that they would do so. Crystal River intervened and

made similar allegations in a third-party complaint.

¶4 After substantial discovery had been taken, JBC moved for

summary judgment on its breach of contract counterclaim. JBC

supported the motion with an affidavit from its principal, Tai W.

Jacober (Jacober affidavit), detailing problems with the cattle and

referencing emails that Jacober averred confirmed extension of the

2
initial payment deadline. Sellers opposed the motion with counter

affidavits and an outspoken brief. 1

¶5 On June 12, 2017, in a lengthy written order, the trial court

began by saying

Because JBC has not met its burden to show
that there is not a genuine dispute about
whether it breached the purchase agreements
at issue before the [sellers’] alleged breach, I
deny the motion. I also deny JBC’s motion
because a genuine dispute exists as to the
issue of adequate assurances.

The court recognized JBC’s admission that “it did not make the

initial payment due under the agreements.” Then the court noted

JBC’s assertion that “the parties modified the terms of the

agreements through email and agreed to defer the initial payment

due on October 15 to a later date.” But “[t]he plaintiffs responded

by submitting affidavits . . . both asserting that neither of the

plaintiffs expressly or impliedly agreed to modify JBC’s obligation to

make the first payment.”

———————————————————————
1 In opposing the summary judgment motion, sellers argued: “The
notion that JBC’s counterclaim is fit for summary judgment is
laughable”; “Other disputes barring summary judgment are of the
he-said-she-said variety of which JBC knew full well before filing its
motion”; and “Why JBC chose to waste Court and party resources
with its summary judgment motion is unfathomable.”

3
¶6 Shortly thereafter, and less than a month before the

then-scheduled trial date, counsel for buyers moved to withdraw,

citing nonpayment. The trial court granted the motion and reset

the trial to February 5, 2018. The case remained dormant until

November 3, 2017, when sellers moved for summary judgment on

all claims, counterclaims, and third-party claims.

¶7 Because buyers were still without counsel, they could not

oppose the motion. See Woodford Mfg. Co. v. A.O.Q., Inc., 772 P.2d

652, 653 (Colo. App. 1988). The trial court signed the summary

judgment orders tendered by sellers, one of which entered judgment

against JBC for approximately $2,500,000 plus interest, costs, and

attorney fees; the other dismissed the counterclaims and Crystal

River’s third-party complaint. The orders did not mention any

aspect of the earlier summary judgment proceeding.

¶8 Four weeks later, new counsel entered their appearance for

buyers. Counsel moved to vacate the summary judgment orders

under C.R.C.P. 60(b)(5). According to the motion, the trial court

had improperly entered the summary judgment orders without

having considered “the entire record, and its own prior holdings,

which demonstrated the existence of genuine issues of material

4
fact.” The court denied the motion, explaining only that “[b]ecause

[buyers] have a remedy — an appeal — relief under C.R.C.P.

60(b)(5) is not appropriate.” 2

¶9 Buyers now contend the summary judgments should be set

aside on four grounds. First, because sellers submitted conclusory

affidavits, they failed to meet their burden to prove the nonexistence

of a genuine issue of material fact. Second, the materials

supporting JBC’s earlier summary judgment motion, which the trial

court should have considered, established disputed issues of

material fact. Third, the trial court did not cite any exception to the

law of the case doctrine in disregarding its earlier summary

judgment order finding disputed issues of material fact. And

fourth, the court denied buyers due process by entering summary

judgment against them after having explained in allowing their

counsel to withdraw that they could not lose on the merits until

trial.

¶ 10 Sellers agree that the first three contentions were preserved.

Buyers concede that the fourth assertion was not preserved.

———————————————————————
2 Because buyers have not appealed this ruling, we express no

opinion on the trial court’s rationale.

5
Because we agree with buyers that the trial court’s inconsistent

summary judgment rulings require reversal, we do not reach the

fourth contention.

II. Summary Judgment

A. Standard of Review and General Law

¶ 11 Summary judgment is reviewed de novo, applying the same

standard as the trial court. City of Fort Collins v. Colo. Oil, 2016 CO

28, ¶ 9. But “arguments and evidence not presented to the trial

court in connection with a motion for summary judgment will not

be considered on appeal.” Timm v. Reitz, 39 P.3d 1252, 1255 (Colo.

App. 2001).

¶ 12 Summary judgment is appropriate only when no genuine issue

of material fact exists and the moving party is entitled to judgment

as a matter of law. C.R.C.P. 56(c); Martini v. Smith, 42 P.3d 629,

632 (Colo. 2002). The opposing party is entitled to the benefit of all

favorable inferences that may reasonably be drawn from the

undisputed facts, and all doubts as to the existence of a triable

issue of fact must be resolved against the moving party. Martini, 42

P.3d at 632.

6
¶ 13 Summary judgment allows the parties to “pierce the formal

allegations of the pleadings and save the time and expense

connected with trial when, as a matter of law, based on undisputed

facts, one party could not prevail.” Peterson v. Halsted, 829 P.2d

373, 375 (Colo. 1992). Yet, summary judgment “is a drastic

remedy, to be granted only when there is a clear showing that the

applicable standards have been met.” Cary v. United of Omaha Life

Ins. Co., 68 P.3d 462, 466 (Colo. 2003).

B. The Moving Party’s Summary Judgment Burden

¶ 14 Buyers’ argument that sellers failed to meet their burden of

showing the absence of a disputed issue of material fact falls short.

¶ 15 The burden of establishing the nonexistence of any genuine

issue of material fact is on the moving party. Civil Serv. Comm’n v.

Pinder, 812 P.2d 645, 649 (Colo. 1991). To do so, that party must

inform the court of the basis for the motion and “identify[] those

portions of the record and of the affidavits, if any, which . . .

demonstrate the absence of a genuine issue of material fact.” Cont’l

Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987). But

“affidavits containing mere conclusions” are not sufficient to meet

this burden. Smith v. Mehaffy, 30 P.3d 727, 730 (Colo. App. 2000);

7
see Ginter v. Palmer & Co., 196 Colo. 203, 207, 585 P.2d 583, 585

(1978) (Summary judgment was improper where the “statements in

the affidavit . . . are insufficient to prove or disprove the allegations

in the complaint or answer, or are merely self-serving conclusions

of the ultimate facts.”).

¶ 16 If a nonmoving party fails to respond to a summary judgment

motion, the court cannot treat the motion as confessed. C.R.C.P.

121, § 1-15(3) (“Other than motions seeking to resolve a claim or

defense under C.R.C.P. 12 or 56, failure of a responding party to file

a responsive brief may be considered a confession of the motion.”);

see Jules v. Embassy Props., Inc., 905 P.2d 13, 15 (Colo. App. 1995)

(“Although it may be risky for a party not to respond, the absence of

a response does not affect the burden of the party moving for

summary judgment to demonstrate that it is entitled to judgment as

a matter of law.”). Still, “[a]n affirmative showing of specific facts,

uncontradicted by any counter affidavits, leaves a trial court with

no alternative but to conclude that no genuine issue of material fact

exists.” Pinder, 812 P.2d at 649.

¶ 17 By any reckoning, this case turns on which party breached

first. According to sellers’ affidavits, JBC breached by failing to

8
make any payments, including an initial payment due on October

15, 2015. In its answer to the complaint, JBC admits having failed

to make payments; but in its counterclaim, JBC alleges that sellers

did not perform under the agreements and fraudulently induced

JBC to enter into the agreements.

¶ 18 Even so, “the nonmoving party may not rest on its mere

allegations or denials of the opposing party’s pleadings but must

provide specific facts demonstrating a genuine issue for trial.” Colo.

Oil, ¶ 8. And by failing to respond, buyers did not provide the court

with any such facts.

¶ 19 The affidavits submitted by sellers aver that “[a]t all times,

[sellers] w[ere] ready, willing, and able to perform its obligations

under the [agreements]”; that “JBC failed or refused to make any of

the payments owing under the [agreements]”; that “JBC had no

justification or excuse for these failures”; and that sellers “made no

false or misleading statements . . . regarding the terms of the

[agreements].” These facts support sellers’ claim that JBC breached

the agreements by failing to make any payments. And absent any

counter affidavits, the court was entitled to accept them as true.

See McDaniels v. Laub, 186 P.3d 86, 87 (Colo. App. 2008) (“A

9
motion for summary judgment supported by an affidavit, to which

no counteraffidavit is filed, establishes the absence of an issue of

fact, and the court is entitled to accept the affidavit as true.”).

¶ 20 Be that as it may, buyers point to a discrepancy on the face of

the agreement with Ranch Management. Specifically, the

agreement requires JBC to pay $100 per head of cattle on October

15, 2015, but it was not signed until November 10, 2015. The

affidavit of Ranch Management’s manager does not explain this

discrepancy. Although buyers did not raise this discrepancy below,

we consider it because it is intrinsic to the documents that were

before the trial court when it entered the summary judgments. See

Roberts v. Am. Family Mut. Ins. Co., 144 P.3d 546, 548 (Colo. 2006).

Simply put, sellers failed to establish when JBC’s initial payment

under the Ranch Management agreement was due.3

¶ 21 Despite this discrepancy, the affidavit of the Ranch

Management manager avers that JBC failed to make any payments

under the agreement. So, regardless of when the initial payment

———————————————————————
3 This discrepancy does not appear in the Southern Cross

agreement, which was signed on August 25, 2015.

10
was due, the fact that no payments were ever made remains

undisputed.

¶ 22 Buyers’ argument that sellers’ affidavits were mere conclusory

statements of the ultimate fact — that JBC breached the contract —

misses the mark. See Sweet v. TCI MS, Inc., 47 So. 3d 89, 94 (Miss.

2010) (breach of contract affidavit was conclusory where it did “not

show when or how TCI attempted to obtain financing, or why TCI’s

available options were unsatisfactory”). Under C.R.C.P. 56(e),

affidavits supporting summary judgment “shall be made on

personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant

is competent to testify to the matters stated therein.”

¶ 23 After all, sellers’ affidavits contain information from persons

who have personal knowledge of the agreements (they signed them)

and of the operations of Southern Cross and Ranch Management

(they manage them). See People v. Hernandez & Assocs., Inc., 736

P.2d 1238, 1240 (Colo. App. 1986) (“The supporting affidavit must

contain evidentiary material, which, if the affiant were in court and

testifying on the witness stand, would be admissible as part of his

testimony.”). The affiants aver specific facts showing how sellers

11
were ready to perform when JBC breached. These facts are

admissible evidence and suffice to support summary judgment. See

Suncor Energy (USA), Inc. v. Aspen Petroleum Prods., Inc., 178 P.3d

1263, 1269 (Colo. App. 2007) (“A conclusory statement made

without supporting documentation or testimony is insufficient to

create an issue of material fact.”).

¶ 24 In sum, we conclude that sellers met their burden of showing

the absence of a factual issue on JBC’s breach by nonpayment. So,

we turn to the next step of summary judgment review.

C. The Nonmoving Party’s Burden

¶ 25 Under C.R.C.P. 56(e), if the moving party meets its burden, the

burden shifts to the nonmoving party:

When a motion for summary judgment is made
and supported as provided in this Rule, an
adverse party may not rest upon the mere
allegations or denials of the opposing party’s
pleadings, but the opposing party’s response
by affidavits or otherwise provided in this Rule,
must set forth specific facts showing that there
is a genuine issue for trial. If there is no
response, summary judgment, if appropriate,
shall be entered.

(Emphasis added.) Because JBC did not respond, we ask only

whether summary judgment was appropriate. Unsurprisingly,

12
buyers say “no” because the Jacober affidavit established disputed

issues of material fact and the trial court was required to review all

materials then “on file.” Even accepting buyers’ view of this

affidavit, we conclude that Rule 56 does not require a trial court to

review the record beyond the materials cited in the summary

judgment motion and any opposition.

¶ 26 To begin, we return to the language of the rule. C.R.C.P. 56(c)

provides in relevant part:

The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file,
together with the affidavits, if any, show that
there is no genuine issue as to any material
fact and that the moving party is entitled to a
judgment as a matter of law.

(Emphasis added.) No Colorado court has addressed whether

C.R.C.P. 56(c) requires a court to examine the record beyond the

materials cited in the summary judgment motion and any

opposition. Because C.R.C.P. 56(c) is “similar to a Federal Rule of

Civil Procedure, we may look to federal authority for guidance in

construing the Colorado rule.”4 Benton v. Adams, 56 P.3d 81, 86

———————————————————————
4 C.R.C.P. 56(c) is identical to the prior version of Fed. R. Civ. P.

56(c).

13
(Colo. 2002). Still, looking to federal authority only gets us so far;

before the 2010 amendment, the circuits were split.

¶ 27 Supporting buyers are cases like Keiser v. Coliseum Properties,

Inc., 614 F.2d 406, 410 (5th Cir. 1980), where the court held that

summary judgment can be granted only “if everything in the record

pleadings, depositions, interrogatories, affidavits, etc. demonstrates

that no genuine issue of material fact exists.” (Emphasis added.)

The court explained that “Rule 56 does not distinguish between

documents merely filed and those singled out by counsel for special

attention[;] the court must consider both before granting a

summary judgment.” Id.; see Stepanischen v. Merchs. Despatch

Transp. Corp., 722 F.2d 922, 930 (1st Cir. 1983) (“Failure of the

nonmoving party to match the length and quality of the moving

party’s papers does not automatically relieve the court of its

statutory task of determining whether ‘the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact.’” (quoting Fed. R. Civ. P. 56(c))).

¶ 28 Supporting sellers are cases such as Keenan v. Allan, 91 F.3d

1275, 1279 (9th Cir. 1996), where the court held that “[i]t is not [the

14
task of the court] to scour the record in search of a genuine issue of

triable fact.” (Citation omitted.) Instead, the court must be able to

rely “on the nonmoving party to identify with reasonable

particularity the evidence that precludes summary judgment.” Id.

(citation omitted); see Bennett v. Dr Pepper/Seven Up, Inc., 295 F.3d

805, 808-09 (8th Cir. 2002) (“The court was not bound, by rule or

otherwise, to search the record for genuine issues of fact, when

Bennett failed to bring such issues to the attention of the court in a

timely-filed response to the motion for summary judgment.”); United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (When reviewing

summary judgment, “[j]udges are not like pigs, hunting for truffles

buried in” the record). 5

¶ 29 Widening our inquiry, Guarino v. Brookfield Township

Trustees, 980 F.2d 399, 404 (6th Cir. 1992), expands on the

reasoning behind the latter approach. The court held that

“[n]othing in either the Rules or case law supports an argument

———————————————————————
5 An earlier seventh circuit case held in “reaching its [summary
judgment] determination the court has the power to penetrate the
allegations of fact in the pleadings and look at any evidential source
to determine whether there is an issue of fact to be tried.” Mintz v.
Mathers Fund, Inc., 463 F.2d 495, 498 (7th Cir. 1972).

15
that the trial court must conduct its own probing investigation of

the record.” Id. at 405. Then it went on to explain that requiring a

trial court to do so

would leave nothing to discourage the
non-moving party, especially one with a
reasonably arguable case, from declining (or
“forgetting” or being “too busy”) to respond to a
motion for summary judgment, secure in the
knowledge that the [trial] court would be
required to excavate all of the presented
record, and find for itself any nuggets of
evidence that might demonstrate genuine
issues of material fact.

Id.

¶ 30 Even worse, as the Guarino court pointed out, if summary

judgment were granted,

[the] passive party could still relax, assured
that [it] could timely file an appeal, flyspeck
the factual record . . . and only then, on de
novo review, identify for the court of appeals
the answers, the exhibits and the other facts
[they] wish[] to assert as supporting specific
issues. Indeed, precisely because the review is
de novo, with the appellate court standing in
the same position as did the trial court, no
principle exists under appellants’ argument
that could legitimately deflect a nonmoving
party’s insistence that the appellate panel itself
assume the duty to search for genuine issues.
What concept of judicial economy is served
when judges (at least one, perhaps as many as

16
four) are required to do the work of a party’s
attorney?

Id. at 405-06 (citation omitted).

¶ 31 And Guarino recognized that requiring a court to do the work

of the nonmoving party raises another concern. It is “inappropriate

for the court to abandon its position of neutrality in favor of a role

equivalent to champion for the non-moving party: seeking out facts,

developing legal theories, and finding ways to defeat the motion.”

Id. at 406.

¶ 32 For the following three reasons, we align with those circuits

holding that where no opposition is filed, a trial court need not look

beyond the materials cited in the summary judgment motion.

¶ 33 First, “when interpreting two statutory sections, we must

attempt to harmonize them to give effect to their purposes and, if

possible, reconcile them so as to uphold the validity of both.”

Gonzales v. Allstate Ins. Co., 51 P.3d 1103, 1106 (Colo. App. 2002).

C.R.C.P. 56 includes two competing provisions: under C.R.C.P.

56(c), a trial court must enter summary judgment “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show no genuine issue as to any

17
material fact”; under C.R.C.P. 56(e), the nonmoving party “must set

forth specific facts showing that there is a genuine issue for trial.”

Were we to interpret C.R.C.P. 56(c) as requiring a trial court to

examine the entire record on file before entering summary

judgment, the mandate (“must”) of C.R.C.P. 56(e) could be

disregarded with impunity. See Pineda-Liberato v. People, 2017 CO

95, ¶ 39 (“We cannot . . . interpret statutory provisions so as to

render any of their words or phrases meaningless or superfluous.”).

But reading C.R.C.P. 56 as a whole, these two provisions can be

reconciled to mean “that whatever establishes a genuine issue of

fact must both be in the . . . court file and set forth in the

response.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d

1026, 1029 (9th Cir. 2001).

¶ 34 Second, interpreting C.R.C.P. 56(c) as not requiring a trial

court to search the entire record would be consistent with Colorado

cases recognizing that the parties are responsible for alerting

appellate courts to portions of the record supporting their

arguments. See Mauldin v. Lowery, 124 Colo. 234, 236, 255 P.2d

976, 977 (1953) (“Our Court will not search through briefs to

discover what errors are relied on, and then search through the

18
record for supporting evidence.”); Valentine v. Mountain States Mut.

Cas. Co., 252 P.3d 1182, 1186 (Colo. App. 2011) (“When a party

does not point us to where an issue was raised and resolved, he

‘place[s] the burden of searching records on us’ — a search we are

not required to undertake.” (quoting O’Quinn v. Baca, 250 P.3d 629,

631 (Colo. App. 2010))); Brighton Sch. Dist. 27J v. Transamerica

Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996) (“[I]t is not the

duty of the reviewing court to search the record for evidence to

support bald assertions.”). We discern no principled basis on which

to exempt appellate courts from this burden while imposing it on

trial courts.

¶ 35 Third, this interpretation comports with Colorado cases that

decline to consider a new argument on appeal opposing summary

judgment. See White v. Progressive Mountain Ins. Co., 62 P.3d

1074, 1077 (Colo. App. 2002) (declining to address a new argument

raised in opposition to the summary judgment). Requiring courts to

scour the record for disputed facts would allow a party opposing

summary judgment to remain silent below, only to point out

19
disputed facts to an appellate court that the trial court had not

found and obtain a reversal. 6

¶ 36 Alternatively, buyers argue that the trial court should have

examined the entire record because they were unrepresented by

counsel during the second summary judgment proceeding. But

Colorado courts do not provide special treatment to unrepresented

litigants, at least in civil cases. See Negron v. Golder, 111 P.3d 538,

541 (Colo. App. 2004) (Pro se parties are “bound by the same rules

of civil procedure as attorneys licensed to practice law.”); see also

Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986) (where a

pro se litigant failed to respond to a summary judgment motion, the

court held “pro se litigants in the ordinary civil case should not be

treated more favorably than parties with attorneys of record”).7

———————————————————————
6 Of course, “it has . . . long been within the discretion of appellate

courts to address an error appearing of record.” Roberts v. Am.
Family Mut. Ins. Co., 144 P.3d 546, 550 (Colo. 2006); see C.A.R.
1(d). However, because we reverse the summary judgments for
other reasons, we decline buyers’ invitation to do so.
7 Contrary federal authority cited by buyers is limited to pro se

cases brought by prisoners. See Hudson v. Hardy, 412 F.2d 1091,
1094 (D.C. Cir. 1968) (“[T]he requirements of the summary
judgment rule may not fairly be applied ‘with strict literalness’ to a
prisoner unrepresented by counsel and subject to the
‘handicaps . . . detention necessarily imposes upon a litigant.’”)
(citation omitted).

20
¶ 37 In the end, we conclude that under C.R.C.P. 56(c), a trial court

is not required to review the record beyond the material cited in a

summary judgment motion and any opposition. So, we necessarily

further conclude that buyers cannot rely on the Jacober affidavit to

show a disputed issue of material fact.

III. The Trial Court’s Inconsistent Rulings

¶ 38 Buyers next contend the trial court erred by entering

summary judgment in favor of sellers because the court departed

from its earlier summary judgment ruling that found disputed

material facts without explanation. Despite our conclusion

requiring only limited record review concerning factual issues before

deciding an unopposed summary judgment motion, we agree that

the court’s failure to reconcile its inconsistent prior ruling

constituted an abuse of discretion which requires us to reverse the

summary judgments.

A. Law of the Case Doctrine

¶ 39 Initially, buyers argue that the trial court erred by entering

summary judgment because its prior ruling denying summary

judgment constituted the law of the case. This argument

misinterprets the law of the case doctrine.

21
¶ 40 The law of the case doctrine is a discretionary rule providing

that courts should generally follow prior rulings in a case. In re

Estate of Walter, 97 P.3d 188, 191 (Colo. App. 2003). The doctrine

applies to decisions of law, not to findings of fact or preliminary

rulings. Paratransit Risk Retention Grp. Ins. Co. v. Kamins, 160 P.3d

307, 313 (Colo. App. 2007). For these reasons, the law of the case

does not apply to a denial of a summary judgment motion. See

Gavend v. Malman, 946 P.2d 558, 561 (Colo. App. 1997) (The law of

the case doctrine “does not preclude a second judge assigned to a

case from considering a motion for summary judgment denied by a

previous judge, even if based upon the same issues.”). And in any

event, courts have “never . . . held that the ‘law of the case’ doctrine

prevents a trial court from clarifying or even revisiting its prior

rulings.” In re Bass, 142 P.3d 1259, 1263 (Colo. 2006).

¶ 41 So, we turn to a trial court’s discretion to depart from a prior

ruling.

B. Trial Court Discretion to Revisit Prior Rulings

¶ 42 Next, buyers argue that “[t]he trial court articulated no reason

for departing from its prior ruling regarding JBC’s summary

judgment motion. And there is no record evidence providing a good

22
reason.” At oral argument, sellers agreed that no further discovery

had been taken between the two motions.

¶ 43 In general, “[e]very ruling or order made in the progress of an

on-going proceeding may be rescinded or modified during that

proceeding upon proper grounds.” Broyles v. Fort Lyon Canal Co.,

695 P.2d 1136, 1144 (Colo. 1985); see C.R.C.P. 54(b) (Any order not

made final “is subject to revision at any time before the entry of

judgment adjudicating all the claims . . . .”). But in this context,

what is meant by “upon proper grounds”?

¶ 44 Upon proper grounds at least requires that the trial court’s

action be within the bounds of discretion. A trial court abuses its

discretion “when it misconstrues or misapplies the law,” People v.

Sieck, 2014 COA 23, ¶ 5; “fail[s] to exercise discretion,” People v.

Darlington, 105 P.3d 230, 232 (Colo. 2005); or rules in a manner

“manifestly against the weight of evidence,” Hytken v. Wake, 68

P.3d 508, 510 (Colo. App. 2002).

¶ 45 To be sure, the trial court’s two summary judgment rulings

involved the same question — whether disputed facts exist as to

which party breached the agreements first. In the initial ruling, the

court found that “a genuine dispute exists as to whether JBC

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breached the purchase agreement first.” But according to the

second ruling, “JBC breached [the] agreement[s] when it failed to

make any payment[s] . . . .” Thus, contrary to sellers’ assertion, the

orders are inconsistent. This inconsistency does not vanish

because buyers were movants when the motion was denied and

sellers were movants when the motion was granted.

¶ 46 In most cases, we would resolve such a seeming inconsistency

by reviewing the trial court’s explanation of why its ruling changed.

For example, after further discovery, facts may no longer be in

dispute. See Peralta v. Dillard, 744 F.3d 1076, 1088 (9th Cir. 2014)

(“Denial of summary judgment may result from a factual dispute at

the time. That dispute may disappear as the record develops.”).

But the second order did not mention the first order, much less give

any reason for reaching the opposite result. For that matter, it did

not even expressly find the absence of disputed factual issues.

¶ 47 But even without an explanation, because trial courts are

presumed to know and apply the law, appellate courts often

overlook similar shortcomings. See Alamosa Indus. Stores Co. v.

Hill, 74 Colo. 86, 88, 219 P. 210, 211 (1923) (“[W]e must presume

the trial court will apply the appropriate rule of law.”). But here,

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because the trial court merely signed the orders tendered by sellers

along with their summary judgment motions, “we scrutinize the

order more critically.” Chostner v. Colo. Water Quality Control

Comm’n, 2013 COA 111, ¶ 26; see Uptime Corp. v. Colo. Research

Corp., 161 Colo. 87, 93-94, 420 P.2d 232, 235 (1966) (“Where the

findings of the trial court are verbatim those submitted by the

successful litigant, we will . . . scrutinize them more critically and

give them less weight than if they were the work product of the [trial

court].”). The rationale behind the mandate of critical scrutiny

clouds the presumption that the trial court understood and applied

the law. The picture is even murkier here because sellers’ summary

judgment motion did not mention either buyers’ earlier summary

judgment motion or the order denying it.

¶ 48 Taking a closer look at the second order, we are unable to

discern that the trial court considered its prior summary judgment

ruling before making the inconsistent ruling. In other words, while

the court had discretion to disregard its prior ruling, the record

does not show that it consciously did so. And “[a] court’s failure to

exercise discretion can be an abuse of discretion.” People v. Hardin,

2016 COA 175, ¶ 30.

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¶ 49 So, too, is discretion abused when a ruling is “manifestly

against the weight of evidence.” Hytken, 68 P.3d at 510.

Comparing the prior order to the affidavits sellers submitted in

support of their summary judgment motions leaves no reasoned

doubt that factual issues abound. For example, those affidavits

aver that “JBC failed or refused to make any of the payments

owing,” “JBC had no justification or excuse for these failures,” and

“neither of the parties amended those terms.” But the initial order

denying summary judgment recognized JBC’s assertion that the

parties had modified the agreements “to defer the initial payment

due on October 15 to a later date,” and recognized that “a genuine

dispute exists as to whether JBC breached the agreements first.”

See, e.g., Meyerowich v. Carrere Gen. Contractors, Inc., 611 So. 2d

41, 43 (Fla. Dist. Ct. App. 1992) (“The trial court made inconsistent

rulings when it first determined Rose Meyerowich to be an

indispensable party and then prior to the entry of the final

judgment, denied her motion to intervene to cure the defect in the

pleadings. Under such circumstances we must hold the trial court

abused its discretion.”); Haney v. Camp, 739 S.E.2d 399, 400 (Ga.

Ct. App. 2013) (“Because the trial court issued inconsistent rulings

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. . .[,] we vacate the trial court’s order and remand this case for

further proceedings consistent with this opinion.”).

¶ 50 For these reasons, we conclude that the trial court abused its

discretion in entering the summary judgments.

IV. Conclusion

¶ 51 The summary judgments in favor of sellers are reversed and

the case is remanded for further proceedings.

JUDGE ROMÁN and JUDGE FREYRE concur.

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