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Cox v. Pearl Inv. Co. - 168 Colo. 67, 450 P.2d 60 (1969)

Rule:

It is a basic principle of appellate procedure firmly adhered to by the court that unless the trial court has been given an opportunity to correct an alleged error, it will not be considered on review, unless it involves a plain error which deprives a litigant of fundamental rights.

Facts:

Plaintiffs sought compensation for injuries plaintiff sustained when she fell on property rented by tenant but owned by defendant. Plaintiff's complaint acknowledged that the tenant rented the property from defendant, but the complaint only charged defendant with negligence. Apparently, the tenant had compensated plaintiffs, who executed a release document with the tenant. Defendant moved for summary judgment and alleged that the release of the tenant operated as a release of all tortfeasors. Defendant was granted summary judgment. Plaintiffs appealed. The plaintiffs urge reversal on the ground that since the affirmative defense of release was not pleaded in the answer as required by R.C.P. Colo. 8(c), it was thereby waived by the defendant and that the defendant could not thereafter assert release as a ground for summary judgment. 

Issue:

Is the failure of defendant to raise the affirmative defense of release by its motion for summary judgment subject to review by this court?

Answer:

No.

Conclusion:

This assignment of error is without merit. If the summary judgment motion had not been granted and had the defendant wished to persist in asserting the defense of release, the trial court would have been required to permit defendant to amend its answer to include this defense. As this record is postured, the inclusion of the affirmative defense of release in the summary judgment motion is treated as being incorporated in the defendant's answer for the purpose of technical compliance with R.C.P. Colo. 8(c). Our review of this record indicates that the plaintiffs did not at any time raise this objection in the trial court nor move for a reconsideration of the trial court's summary judgment on the ground that the defendant could not initially raise the affirmative defense of release by its motion for summary judgment. Therefore, even if this assignment of error had any substance, it would not be subject to review by this court.

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