Flores v. Flores
Flores v. Flores
Flores v. Flores
Opinion
20CA0024 Flores v Flores 10-21-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA0024
Adams County District Court No. 18CV68
Honorable Rayna Gokli McIntyre, Judge
Robert A. Flores,
Plaintiff-Appellant and Cross-Appellee,
v.
Joaquin R. Flores,
Defendant-Appellee and Cross-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE J. JONES
Freyre and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 21, 2021
Robert A. Flores, Pro Se
Fischer & Fischer, P.C., Ronnie Fischer, Jennifer K. Fischer, Lisa C. Secor,
Denver, Colorado, for Defendant-Appellee and Cross Appellant
1
¶ 1
In this contract dispute, plaintiff, Robert A. Flores, appeals the
district court’s judgment entered on jury verdicts in favor of
defendant, Joaquin R. Flores, his son.1 Joaquin cross-appeals the
district court’s order denying his post-trial motion relating to
damages. We affirm.
I. Background
¶ 2
This case arose from a dispute over the ownership of real
property (the Xavier property). In 2003, Joaquin purchased the
Xavier property for Robert to live in. Robert funded the down
payment, but the property is titled in Joaquin’s name because he
financed the rest of the purchase price, taking out two loans
secured by the property.
¶ 3
Joaquin paid the mortgage on and the expenses related to the
property. From 2003 through late 2011, Robert paid Joaquin
$1,500 per month, which covered most, but not all, of the mortgage
and expenses. Malinda Flores regularly maintained a record of
Robert’s payments and shortfalls.
1 Because both parties (and other witnesses) share the same last
name, we refer to them by their first names to avoid any confusion.
In doing so, we intend no disrespect.
2
¶ 4
From December 2011 through April 2017, Robert made the
monthly $1,500 payments only sporadically. Robert didn’t make
any payments thereafter.
¶ 5
In mid-2018, Robert sued Joaquin, claiming that Joaquin had
breached an oral agreement that Joaquin would convey the title to
Robert. The agreement, Robert says, required him to make monthly
payments for the mortgage and expenses to maintain the property
in exchange for equity. He alleged that the parties orally agreed
that he could “skip payments” and that he stopped making
payments in 2017 because Joaquin claimed ownership of the
property. Robert also asserted claims for breach of fiduciary duty,
civil theft, quantum meruit, and unjust enrichment.
¶ 6
Before answering the complaint, Joaquin moved to dismiss it.
The court granted that motion in part, dismissing the breach of
fiduciary duty, civil theft, and quantum meruit claims, leaving only
the breach of contract and unjust enrichment claims standing.
¶ 7
Joaquin answered the complaint. He denied ever agreeing to
purchase the Xavier property to later convey it to Robert or that
Robert had any equity in it. Joaquin asserted that he was actually
paying the property’s mortgage and most of the expenses required
3
to maintain it. He claimed that he intended only for Robert to live
in the Xavier property in return for payment of rent and any related
costs. Joaquin asserted a counterclaim against Robert for breach of
contract based on Robert’s failure to pay rent and all related
expenses on the Xavier property, which Joaquin characterized as
“lease payments.”
¶ 8
Robert moved to amend his complaint to add a variety of
claims. The court denied that motion.
¶ 9
Before trial, Joaquin moved for summary judgment on
Robert’s remaining claims and on his counterclaim for breach of
contract. The court granted the motion as to Robert’s unjust
enrichment claim because a contract existed between the parties.
The court denied the motion as to the breach of contract claims,
leaving only those claims to be resolved.
¶ 10
At the end of trial, the jury found in favor of Joaquin but didn’t
award him any damages.
¶ 11
Joaquin filed a motion for judgment notwithstanding the
verdict under C.R.C.P. 59, arguing that the uncontroverted evidence
showed that he was entitled to $72,000 in damages. He asked for
4
an award of that amount or, alternatively, a new trial on damages.
The district court denied that motion.
¶ 12
Robert appeals and Joaquin cross-appeals.
II. Discussion
¶ 13
Robert contends that the district court erred by (1) admitting
an Excel spreadsheet itemizing Robert’s payments and shortfalls
(Exhibit D) as a business record under CRE 803(6); (2) excluding
text messages and evidence of a telephone conversation between
Joaquin and his brother, Sean, as evidence of settlement
discussions under CRE 408; (3) demonstrating bias; (4) denying his
motion for a mistrial based on the admission of Exhibit D; (5)
excluding evidence of the change in his relationships with his sons;
(6) rejecting his proposed jury instructions; (7) granting Joaquin
partial summary judgment; and (8) denying his pretrial motion to
amend his complaint. We reject all of these contentions.
¶ 14
But first, we address Joaquin’s cross-appeal because our
resolution of the issue he raises — that the district court
erroneously instructed the jury on his counterclaim — impacts
several of Robert’s arguments.
5
A. Cross-Appeal
¶ 15
Joaquin contends that the district court erred by denying his
motion for judgment notwithstanding the verdict. Specifically, he
argues that the district court erroneously instructed the jury on his
breach of contract counterclaim. The mistake was that the verdict
form for Joaquin’s counterclaim substituted “plaintiff” for
“defendant” in one of the questions the jury was to answer (whether
Joaquin had substantially performed his obligations under the
contract), and when the jury answered “no” to that question the
form directed it not to answer whether Joaquin had been damaged
as a result of Robert’s breach. (Joaquin also points to a similar
problem in Instruction 27 setting forth the elements of his
counterclaim.) So the jury found for Joaquin on his counterclaim,
but didn’t award him any damages.
¶ 16
The problem for Joaquin is that his counsel didn’t preserve
this issue for appeal by timely objecting to the erroneous verdict
form. C.R.C.P. 51 says that “[a]ll instructions shall be submitted to
the parties, who shall make all objections thereto before they are
given to the jury. Only the grounds so specified shall be considered
on motion for a new trial or on appeal . . . .” (Emphasis added.)
6
¶ 17
Therefore, a party’s failure to make a timely objection to an
erroneous instruction before the jury receives it waives the ability to
raise the error on appeal. See Harris Grp., Inc. v. Robinson, 209
P.3d 1188, 1195, 1201 (Colo. App. 2009); Smiley’s Too, Inc. v.
Denver Post Corp., 935 P.2d 39, 42 (Colo. App. 1996).
¶ 18
Joaquin argues that this issue was preserved for appeal
because counsel and the court caught one error in responding to a
jury question and simply overlooked the other. He is incorrect.
Objecting to, or catching, one error didn’t preserve an argument as
to another. The fact is, his counsel failed to timely object to the
error he raises on appeal. Thus, the claim of error was waived and
we won’t consider it.
¶ 19
Joaquin invites us, however, to review the issue for plain error,
in the interest of justice. We decline the invitation. Joaquin’s
counsel tendered the verdict form (and elemental instruction)
containing the mistake, as the district court found in denying
Joaquin’s post-trial motion and as Joaquin concedes on page 12 of
his answer brief. Plain error review in civil cases is extremely rare.
We don’t think applying it is appropriate when the error the party
complains of is of the party’s own making. See JW Constr. Co. v.
7
Elliott, 253 P.3d 1265, 1271 (Colo. App. 2011); Harris Grp., 209
P.3d at 1195 (plain error review of instructional issues is rare and
should occur only when necessary to avoid unequivocal and
manifest injustice); see also McGill v. DIA Airport Parking, LLC, 2016
COA 165, ¶¶ 9-10 (a party may not complain of an error on appeal
that he invited or injected into the case).
¶ 20
We therefore affirm the jury’s award and the district court’s
denial of Joaquin’s post-trial motion.
B. Appeal
1. Exhibit D
¶ 21
Because Robert raises several issues concerning Exhibit D, we
address them together. Robert contends that the district court
erred by (1) admitting Exhibit D into evidence as a business record
under CRE 803(6); (2) admitting the exhibit though Joaquin hadn’t
disclosed it before trial; (3) admitting Exhibit D even though it didn’t
meet the requirements of a summary under CRE 1006 because it
wasn’t supported by original documentation; and (4) denying his
motion for a mistrial based on the inadmissibility of the exhibit.
¶ 22
Joaquin alleged that Robert breached a contract by failing to
make agreed-upon payments. Robert didn’t dispute that he didn’t
8
make payments; he alleged that he wasn’t required to because of an
oral agreement between the parties. Exhibit D didn’t have anything
to say about that issue. Rather, Joaquin introduced Exhibit D to
establish the monetary damages he incurred as a result of Robert’s
breach. But despite the jury’s finding that Robert breached the
contract, it didn’t award Joaquin any damages. We have affirmed
that aspect of the judgment. Thus, holding that the court
erroneously admitted Exhibit D would be of no benefit to Robert,
and therefore his arguments concerning the exhibit are moot. See
Top Rail Ranch Ests., LLC v. Walker, 2014 COA 9, ¶ 45 (if a ruling
on an issue wouldn’t have any practical effect on the judgment, the
issue is moot); Comcast of California/Colorado, L.L.C. v. Express
Concrete, Inc., 196 P.3d 269, 275-76 (Colo. App. 2008) (same); cf.
Vanderpool v. Loftness, 2012 COA 115, ¶ 31 (jury findings against
the plaintiff on the issues of liability and causation rendered
harmless any issue relating only to damages); Dunlap v. Long, 902
P.2d 446, 448-49 (Colo. App. 1995) (jury determination that the
plaintiffs suffered no injury or damages rendered harmless any
error relating only to the defendant’s liability).
9
¶ 23
In any event, Robert’s complaints about Exhibit D are
meritless. It was prepared in the ordinary course of business and
modified only to omit information not relevant to the Xavier
property. Robert hasn’t pointed to anything in the record coming
close to showing an abuse of discretion. See, e.g., State ex rel.
Coffman v. Robert J. Hopp & Assocs., LLC, 2018 COA 69M, ¶¶ 74-75
(“If the record is a compilation of data, and the original data was
prepared in compliance with [CRE 803(6)], the fact that the data
was compiled into a spreadsheet or document for litigation does not
affect its admissibility.”); People v. Flores-Lozano, 2016 COA 149,
¶¶ 12-17 (a computer spreadsheet qualified as a business record
under Rule 803(6) because the preparer routinely investigated
employee theft and regularly prepared spreadsheets to summarize
suspect transactions from a point of sale system); People v. Ortega,
2016 COA 148, ¶ 15. To the extent Robert challenges the exhibit
based on Malinda’s alleged lack of skill as a bookkeeper, that
10
challenge goes to the weight of the evidence, not its admissibility.
See In re Estate of Fritzler, 2017 COA 4, ¶ 9.2
2. Text Messages and Phone Conversation Excluded Under CRE
408
¶ 24
Joaquin moved in limine to exclude Exhibit 4 — text messages
between Joaquin and Sean showing Joaquin’s attempt to settle his
dispute with Robert. Robert argued in response that the messages
weren’t excludable under CRE 408 because Sean didn’t have the
authority to engage in any settlement negotiations with Joaquin on
his behalf, he never received the texts, and the discussion took
place prior to this litigation.
¶ 25
The district court ruled at trial that portions of the text
messages were inadmissible under CRE 408 as evidence of
settlement negotiations or were otherwise irrelevant.
¶ 26
During trial, Robert sought to question Sean about a
conversation with Joaquin the day before the text-message
2 The district court found that Joaquin previously disclosed the
exhibit in other litigation between the parties and had attached it to
his summary judgment motion. The record supports the district
court’s ruling. As for CRE 1006, Robert hasn’t demonstrated that
the exhibit is a summary covered by the rule.
11
exchange. After Joaquin’s counsel objected, the parties and the
court discussed the admissibility of Exhibit 4 and the telephone
conversation. The next day, the court ruled evidence of the
telephone conversation was inadmissible when it ruled similarly as
to Exhibit 4. Robert made an offer of proof that Joaquin wanted to
buy Robert a car and told Sean he should “take care” of Robert.
¶ 27
Robert contends that the district court erred by excluding this
evidence under CRE 408. But he doesn’t coherently explain how
the evidence was relevant. As best we can tell, he asserts that the
evidence could have countered Joaquin’s testimony about his
efforts to resolve the dispute; that is, Joaquin gave a “one-sided
rendition regarding settlement attempts.” But some of the
testimony to which Robert points was only Joaquin saying that he,
in contrast to Robert, acted as if he owned the property. And
almost all the rest was elicited by Robert on cross-examination. He,
not Joaquin, therefore opened the door, and it should go without
saying that one party may not open the door to additional irrelevant
testimony he wishes to introduce by himself eliciting irrelevant
testimony.
12
¶ 28
In sum, we conclude that the district court didn’t abuse its
discretion by excluding this evidence.
3. Judicial Bias
¶ 29
Robert contends that the district court demonstrated bias by
failing to reprimand opposing counsel for unruly behavior during
trial and making certain comments that denied him a fair trial. We
disagree.
¶ 30
“Courts are charged with a duty to maintain order within the
courtroom and to insure a fair trial.” People v. Aleem, 149 P.3d
765, 774 (Colo. 2007). Courts have inherent authority to use all
power reasonably necessary to protect their efficient function,
dignity, independence, and integrity. People ex rel. State Eng’r v.
Sease, 2018 CO 91, ¶ 20; see also Wilkerson v. Dist. Ct., 925 P.2d
1373, 1377 (Colo. 1996) (courts have broad discretion to regulate
conduct in their courtrooms and to preserve order).
¶ 31
Robert argues, as best as we can decipher, that opposing
counsel’s behavior during trial was disruptive and personally
disrespectful. We reject Robert’s assertions as follows:
Robert says that opposing counsel demonized him during
pretrial proceedings by moving to introduce non-
13
character evidence under CRE 404(b) to show his modus
operandi, i.e., his distinct pattern of filing lawsuits
against his family members when he doesn’t get his way.
But the district court denied opposing counsel’s motion
to introduce the evidence at trial because it wasn’t
relevant to a material issue in this case.
Robert says that the district court acted with undue
haste by imposing “the most severe sanction possible”
when defense counsel misrepresented to the court that
he had violated C.R.C.P. 26(a) because he failed to
provide disclosures during the discovery process.
However, Joaquin’s attorney conceded that she was
mistaken about the disclosures and withdrew her
objection to Robert’s expert testifying at trial. The district
court acknowledged that its sanction was based “on an
error of fact” and that, therefore, “no C.R.C.P 37 sanction
[was] warranted” against Robert.
Robert says that the district court failed to properly
reprimand defense counsel for insulting him by saying
(twice) that he was “full of crap.” We agree that opposing
14
counsel’s remarks were disrespectful and unprofessional.
But the district court promptly addressed the situation
by warning Joaquin’s counsel that although the trial had
been frustrating, she shouldn’t address Robert in that
manner. Counsel conceded the point and responded, “I
apologize. You’re right. It’s unprofessional . . . . I have
been taking pot shots all day and I just got fed up.” The
remarks were isolated, the court took appropriate action,
counsel acknowledged that her remarks were improper,
and counsel apologized. Cf. Fyffe v. Mass. Bay Transp.
Auth., 17 N.E.3d 453, 464-74 (Mass. App. Ct. 2014) (a
court’s failure to sufficiently reprimand the plaintiff’s
counsel for her deliberate and repeated disregard of its
directives prejudiced the defendant).
Robert says the district court insulted him by saying,
outside the jury’s presence, “Don’t interrupt. It’s difficult
for me. I’m not as smart as you, I can’t do two things at
once, so give me one moment.” The judge’s comments,
though perhaps somewhat intemperate, were borne out
of frustration following Robert’s constant interruptions
15
during trial. On the last day of trial, the district court
made a record about Robert’s behavior during trial as
follows:
I will just note that I have told [Robert] dozens
of times to stop interrupting me, to stop
interrupting the witnesses. At one point
during the testimony when he was testifying,
he threw a binder of exhibits down, later said
that he had a hand injury, but he — he threw
that binder of exhibits down and stood up
while he did that.
. . . .
Initially in this trial, I did ask [Robert] not to
interrupt me outside of the presence of the
jury, but it continued. It’s not in the jury’s
best interest in terms of time — or this Court’s
— to excuse the jury every time that [Robert]
violates the order not to interrupt.
. . . .
There have been dozens and dozens of times
where I have been speaking, and before I’ve
even finished the words that are coming out of
my mouth, [Robert] interrupts me. And so
again, I decline to accept his statement that he
thinks I am done speaking. I have already put
on the record that if [Robert] continues to
interrupt me, it is going to disrupt the record.
And if the jury finds against him, then that is
going to cause an issue for appeal.
¶ 32
The record amply supports the court’s characterization of
Robert’s conduct. And we see no real prejudice as a result of the
16
one sarcastic remark. See Clements v. Davies, 217 P.3d 912, 917-
18 (Colo. App. 2009) (a judge’s comment that “[w]e are all running
out of patience,” made outside the presence of the jury, didn’t deny
the appellant a fair trial). Likewise, we reject any suggestion that
the court gave preferential treatment to Joaquin’s counsel.
4. Robert’s Testimony About His Family Relationships
¶ 33
Robert contends that the district court abused its discretion
by prohibiting him from testifying about and asking witnesses
about changes in his family relationships to show that he didn’t
breach the agreement because there was an oral modification.
More specifically, Robert argues that the evidence was relevant to
show that he didn’t breach the agreement with Joaquin because it
was reasonable for him to think that he could skip making monthly
payments on the Xavier property given his then-close relationship
with his sons. We disagree.
¶ 34
For the most part, Robert merely cites to portions of the record
where evidence was excluded; he doesn’t attempt to argue why
particular evidence was relevant. We won’t review such
undeveloped and conclusory assertions. People v. Thompson, 2017
COA 56, ¶ 199; Cikraji v. Snowberger, 2015 COA 66, ¶ 21 n.3; see
17
also C.A.R. 28(a)(7)(B). Likewise, though we construe pro se filings
liberally, “liberal construction does not include inventing arguments
not made by the pro se party.” Minshall v. Johnston, 2018 COA 44,
¶ 21.
¶ 35
In any event, we see no abuse of discretion by the district
court. To give one example, Robert wanted to testify about letting
his granddaughter go on a vacation with his son. That had no
bearing on the issues in the case. Further, as previously discussed,
Robert’s argument that Joaquin agreed to modify the contract to
allow him to skip payments is moot because the jury didn’t award
Joaquin any damages.
5. Jury Instructions
¶ 36
Robert contends that the district court erred by rejecting
certain of his proposed jury instructions. The only one he identifies
in his opening brief, however, is his tendered adverse inference
instruction based on spoliation.3
3 Because Robert’s assertion as to other unspecified rejected
instructions is completely undeveloped, we won’t address it. See
People v. Thompson, 2017 COA 56, ¶ 199; Cikraji v. Snowberger,
2015 COA 66, ¶ 21 n.3; see also C.A.R. 28(a)(7)(B).
18
¶ 37
We review a district court’s ruling on a proposed jury
instruction for an abuse of discretion, and we won’t set it aside
unless it was manifestly arbitrary, unreasonable, or unfair. See Aloi
v. Union Pac. R.R. Corp., 129 P.3d 999, 1004 (Colo. 2006) (“[A] trial
court has wide discretion to provide an adverse inference
instruction.”); Warembourg v. Excel Elec., Inc., 2020 COA 103, ¶ 53.
¶ 38
Robert submitted a proposed jury instruction concerning the
destruction of evidence. In essence, Robert argued that Joaquin
had destroyed certain bank records used to prepare Exhibit D. The
district court rejected Robert’s tendered spoliation instruction
because it wasn’t supported by any evidence that Joaquin had
actually destroyed or hidden any evidence from Robert during
discovery.
¶ 39
Robert questioned Malinda about the bank statements she
had used to enter data in Exhibit D. Malinda testified that she
shredded banks statements after ten years in the regular course of
business.
¶ 40
Robert’s contention fails because a spoliation instruction is
appropriate only when a party willfully destroyed evidence relevant
to pending, imminent, or reasonably foreseeable litigation. See
19
Warembourg, ¶ 84; Castillo v. Chief Alt., LLC, 140 P.3d 234, 236
(Colo. App. 2006). Robert didn’t present any evidence of any such
conduct.
6. Pre-Trial Motions
¶ 41
Robert’s last two contentions are titled “Summary Judgment”
and “Plaintiff’s First Motion to Amend Complaint,” respectively. He
purports to challenge the district court’s order granting partial
summary judgment in Joaquin’s favor on Robert’s unjust
enrichment claim and the order denying his motion to amend the
complaint to add a civil theft claim. But Robert fails to explain how
the district court erred. Because Robert failed to adequately
develop these arguments in his opening brief, we decline to review
them. See Thompson, ¶ 199; Cikraji, ¶ 21 n.3; see also United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not
like pigs, hunting for truffles buried in briefs.”).
III. Conclusion
¶ 42
The judgment is affirmed.
JUDGE FREYRE and JUDGE TOW concur.
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