COLORADO COURT OF APPEALS                                        2017COA42


Court of Appeals No. 15CA0852
Otero County District Court No. 12CV63
Honorable Mark A. MacDonnell, Judge


Farm Credit of Southern Colorado, ACA; and Farm Credit of Southern
Colorado, FLCA,

Plaintiffs-Appellees,

v.

James C. Mason, a/k/a Jim Mason,

Defendant-Appellant.


                        ORDERS AND JUDGMENT AFFIRMED

                                   Division V
                             Opinion by JUDGE FOX
                          Román and Booras, JJ., concur

                             Announced April 6, 2017


Snell & Wilmer L.L.P., Scott C. Sandberg, John O’Brien, Denver, Colorado, for
Plaintiffs-Appellees

James M. Croshal, Attorney At Law, James M. Croshal, Pueblo, Colorado;
Mullans Piersel and Reed, PC, Shannon Reed, Pueblo, Colorado, for Defendant-
Appellant
¶1    After Farm Credit of Southern Colorado, ACA, and Farm Credit

 of Southern Colorado, FLCA (collectively, Farm Credit), refused to

 loan Zachary Mason1 additional funds for his farming operations,

 Zachary’s father, James C. Mason, took control of crops that

 constituted collateral for some of Zachary’s loans. Farm Credit

 sued James, and James filed counterclaims. The trial court found

 James liable for converting the collateral and awarded damages.

 James appeals the trial court’s orders denying his request for a jury

 trial and admitting evidence of Zachary’s loan debt to Farm Credit.

 He also appeals the judgment. We affirm.

                           I.   Background

¶2    Zachary funded his farming operations in Colorado’s Arkansas

 Valley with Farm Credit loans. By the spring of 2012, Zachary was

 having difficulty paying his debt to Farm Credit and had planted

 crops on seven farms for the coming harvest. Written agreements

 between Farm Credit and Zachary granted Farm Credit a perfected

 security interest in Zachary’s crops (Crop Collateral) and their




 1 Because two persons in this case have the last name “Mason,” we
 refer to them by their first names to avoid confusion.
                                   1
 proceeds. In early March, Farm Credit refused to continue funding

 Zachary’s farming operations.

¶3    Without additional loans from Farm Credit, Zachary was

 unable to cultivate the Crop Collateral. In May, James — who also

 funded his farming operations by borrowing from Farm Credit for

 about forty-six years — took over the cultivation of the Crop

 Collateral. During that time, James also executed documents to

 transfer Zachary’s United States Department of Agriculture benefits

 to himself and began harvesting and selling the Crop Collateral.

 James never attempted to transfer the Crop Collateral or its

 proceeds to Farm Credit.2 Farm Credit became aware that James

 had taken control of the Crop Collateral by late spring or early

 summer. Without James’ cultivation, to which Farm Credit

 “acquiesced,” the Crop Collateral would not have been harvested.

¶4    On May 21, Farm Credit filed a complaint against Zachary and

 other parties, but not James. The complaint contained claims for

 judgment on Zachary’s notes, foreclosure of real property collateral,

 replevin, conversion of insurance proceeds, civil theft of said

 2Farm Credit discovered arrangements that James made to sell a
 crop (triticale), part of the Crop Collateral, through a third party,
 and it was able to attach those proceeds.
                                    2
 proceeds, and fraud. At Farm Credit’s request, the trial court

 issued a temporary order to preserve the collateral the complaint

 described. This preservation order was to be served on “any third

 party . . . that [Farm Credit] determine[d] may be in possession of or

 have control over” the property detailed in the complaint. Farm

 Credit served this order on James.

¶5    On August 1, after the parties engaged in unsuccessful

 settlement negotiations and James closed his accounts with Farm

 Credit, Zachary filed for bankruptcy, which halted Farm Credit’s

 efforts to recover the collateral. The bankruptcy court later allowed

 Farm Credit to continue its efforts to replevy personal property

 collateral and foreclose real property collateral. On November 13,

 as part of a bankruptcy adversary proceeding, Farm Credit filed an

 amended complaint alleging that Zachary transferred the Crop

 Collateral to James and asserting claims for relief under 11 U.S.C.

 § 523 (2012).

¶6    On March 13, 2013, Farm Credit amended the state trial court

 complaint to add James as a defendant and include claims for

 replevin and conversion against James, accounting by James,

 foreclosure, and appointment of a receiver.

                                   3
¶7    James’ answer raised the affirmative defenses of waiver,

 estoppel, abandonment, and consent, and requested a jury trial.

 Farm Credit filed a motion to strike James’ demand for a jury trial,

 which the trial court granted, finding that the “basic thrust of this

 action is equitable.”

¶8    In November 2013, in response to James’ interrogatories,

 Farm Credit disclosed the amount of Zachary’s outstanding debt

 owed to Farm Credit as of June 2013. The response indicated that

 the debt, including principal and unpaid interest through June

 2013, exceeded $7,000,000, and it provided the interest rates that

 continued to compound daily. Even though discovery in the

 underlying action, bankruptcy proceedings and settlement

 negotiations involving other defendants, and Farm Credit’s replevin

 and foreclosure efforts were simultaneously ongoing, Farm Credit

 never supplemented its response or updated the disclosed amount

 of Zachary’s outstanding debt.

¶9    Discovery disputes, including the one regarding Farm Credit’s

 disclosures of Zachary’s outstanding debt, were addressed by a

 court-appointed special master during a mediation in March 2014.

 The record does not indicate that the special master issued written

                                    4
  findings or a written order, and the transcript does not reflect the

  entire proceeding. After the 2014 mediation, Farm Credit never

  disclosed an updated calculation of Zachary’s debt, to which James

  did not object until the middle of trial.

¶ 10   Farm Credit’s suit against James went to trial in December

  2014. On December 31, 2014 — after the evidence had been

  presented but before the trial court issued a judgment — the

  bankruptcy court issued its ruling in the adversary proceeding

  against Zachary.3 James promptly filed a motion for a directed

  verdict based upon the bankruptcy court’s findings. The trial court

  denied this motion, concluding that there was “no identity of the

  issues actually litigated and necessarily adjudicated” in the

  bankruptcy adversary proceedings and in the trial court

  proceedings.

¶ 11   The trial court subsequently entered a judgment against

  James, finding him liable for converting the Crop Collateral and

  awarding Farm Credit $251,435 plus 8% interest accruing from



  3The bankruptcy adversary proceeding went to trial in November of
  2014, while the proceedings against James in the trial court were
  ongoing.
                                      5
  November 1, 2012, through April 6, 2015, the date of the

  judgment.4

                       II.   Request for a Jury Trial

¶ 12   James argues that the trial court erred in striking his demand

  for a jury trial. James asserts that, when deciding whether he was

  entitled to a jury trial under C.R.C.P. 38(a), the court should have

  considered only the claims against James, not the equitable claims

  against other parties. We disagree.

       A.   Preservation, Standard of Review, and Applicable Law

¶ 13   The parties agree that James has preserved this issue.

¶ 14   We review de novo a party’s asserted right to a jury trial in a

  civil case. Stuart v. N. Shore Water & Sanitation Dist., 211 P.3d 59,

  61 (Colo. App. 2009).

¶ 15   “The right to a trial by jury in civil actions exists only in

  proceedings that are legal in nature.” Id.; see also C.R.C.P. 38(a).

  Courts look to the “nature of the relief” sought to determine whether

  a party is entitled to a jury trial. Stuart, 211 P.3d at 61 (citation



  4Farm Credit’s expert valued the Crop Collateral at over $495,000
  at harvest — when the alleged conversion occurred. After deducting
  James’ estimated expenses to produce the crops, the expert arrived
  at a damages value of $251,435.
                                      6
  omitted). “Actions for money damages are considered legal, and

  actions seeking to invoke the coercive powers of the court are

  considered equitable.” Id. at 62. But, “not all forms of monetary

  relief need necessarily be characterized as legal relief for purpose of

  the jury trial requirement.” Watson v. Pub. Serv. Co. of Colo., 207

  P.3d 860, 865 (Colo. App. 2008) (citation and alteration omitted). A

  party is not necessarily entitled to a jury trial, even where a plaintiff

  seeks to recover money damages. People v. Shifrin, 2014 COA 14,

  ¶ 17.

¶ 16      The original complaint, not any counterclaims or defenses,

  fixes the nature of the action. See Carder, Inc. v. Cash, 97 P.3d

  174, 187 (Colo. App. 2003) (considering only the original complaint,

  not the amended complaint, when affirming the denial of a demand

  for a jury trial). Where a party seeks legal and equitable remedies,

  courts “must determine whether the basic thrust of the action is

  equitable or legal.” Am. Family Mut. Ins. Co. v. DeWitt, 216 P.3d 60,

  63 (Colo. App. 2008), aff’d, 218 P.3d 318 (Colo. 2009).

                                B.    Analysis

¶ 17      We agree with the trial court that the basic thrust of the

  underlying action was equitable.

                                       7
¶ 18   The May 21, 2012, complaint contained claims for judgment

  on Zachary’s notes, foreclosure of real property collateral, replevin

  of personal property collateral, conversion of insurance proceeds

  paid after collateral was damaged or destroyed by fire, civil theft of

  those proceeds, and fraud regarding those proceeds. The complaint

  evidences that the action involved a debtor in default, and the relief

  requested mainly concerned judgment on promissory notes and the

  foreclosure and disposition of collateral. Under these

  circumstances, Farm Credit’s “remedy is in the nature of a

  foreclosure, an equitable action which is to be tried to the court.”

  See W. Nat’l Bank of Casper v. ABC Drilling Co., 42 Colo. App. 407,

  413, 599 P.2d 942, 947 (1979) (The right to a jury trial under

  C.R.C.P. 38 “is not intended to extend to actions involving the

  repossession of collateral by a secured party.”). That such

  foreclosure-like proceedings typically involve calculations of debt

  and “a personal monetary award against the debtor founded in

  contract” does not undercut our conclusion that the basic thrust of

  the action was equitable. See First Nat’l Bank of Meeker v. Theos,

  794 P.2d 1055, 1059 (Colo. App. 1990); see also Shifrin, ¶ 17.



                                     8
¶ 19   We reject James’ contention that the trial court erred in

  considering the May 21, 2012, complaint’s claims because Farm

  Credit did not name James as a defendant until it filed the March

  13, 2013, amended complaint. While a party may invoke its right to

  a jury trial in a civil action where all other parties have waived this

  right, a party may only assert a demand for a jury trial in actions

  where it is entitled to one; if no right to a jury trial exists because

  the basic thrust of the action is equitable, as it is here, no party

  may invoke that right. See In re Trust of Malone, 658 P.2d 284, 286

  (Colo. App. 1982); see also Simpson v. Digiallonardo, 29 Colo. App.

  556, 488 P.2d 208 (1971).

¶ 20   Accordingly, we conclude that the basic thrust of the

  underlying action was equitable and that the trial court did not err

  in striking James’ demand for a jury trial. See Stuart, 211 P.3d at

  61; see also DeWitt, 216 P.3d at 63.

             III.   Evidence of Zachary’s Debt to Farm Credit

¶ 21   James asserts that the trial court erred in admitting evidence

  of Zachary’s debt because Farm Credit did not disclose it before

  trial, and this nondisclosure was intentional and material. We are

  not persuaded.

                                      9
                           A.   Relevant Facts

¶ 22   During direct examination, Farm Credit asked its chief credit

  officer if he was “familiar with the remaining amounts owing on”

  Zachary’s debt. Before the officer answered, James objected on the

  grounds that (1) Farm Credit never disclosed this information in

  discovery; (2) the November 2013 interrogatory response had never

  been updated; and (3) when James asked Farm Credit for this

  information, it was never provided. James emphasized that, as of

  the date of trial, if Farm Credit was “owed nothing, they get

  nothing” in damages.

¶ 23   The trial court asked Farm Credit if the answer to the question

  today was “going to be materially different” than the November 2013

  interrogatory response. Farm Credit replied that it did not believe

  so. Ultimately, the court ruled that it would allow the officer to

  answer the question. But, if “the answer . . . is materially different

  and the Court determines that it should have been updated as part

  of the discovery process, the Court will strike the answer.”

¶ 24   The officer then testified that Zachary’s outstanding debt

  totaled “[a]proximately four million” dollars. James renewed his



                                    10
  objection, and the trial court ruled that it would allow James to

  provide the court with the November 2013 interrogatory response.

¶ 25   The next day, James repeated his objection while moving to

  dismiss “all of the claims for conversion and replevin” because of

  Farm Credit’s alleged discovery violation of failing to disclose an

  updated total for Zachary’s debt.

¶ 26   Farm Credit responded that it was seeking from James

  damages equivalent to the value of the Crop Collateral at the time of

  conversion — not the full value of the debt Zachary owed it. Thus,

  with Zachary’s debt exceeding $7,000,000 in June 2013 (and

  interest accruing daily to date), no amount of security interest

  proceeds would decrease the debt balance below $495,000 (Farm

  Credit’s approximated value of the Crop Collateral when converted).

¶ 27   After noting that there was no complete transcript or written

  order from the mediation, the trial court found that the amounts of

  debt detailed in the November 2013 interrogatory response and the

  chief credit officer’s trial testimony “far exceed[] the amount that’s

  at issue in this litigation.” Accordingly, the trial court declined to

  dismiss the action for discovery violations.



                                      11
       B.   Preservation, Standard of Review, and Applicable Law

¶ 28   The parties agree that James has preserved this issue.

¶ 29   Because James’ arguments in the trial court concerned the

  exclusion of evidence or the dismissal of the action as sanctions for

  discovery violations, we understand James’ contention to be

  grounded in C.R.C.P. 37(c).5 We review a trial court’s decision

  whether to impose sanctions under C.R.C.P. 37 for an abuse of

  discretion. Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698,

  702 (Colo. 2009). An abuse of discretion occurs when a trial court’s

  ruling is manifestly arbitrary, unreasonable, or unfair, or if it

  misapplies the law. People v. Relaford, 2016 COA 99, ¶ 25.

  Additionally, we may affirm on any grounds supported by the

  record. Makeen v. Hailey, 2015 COA 181, ¶ 21.




  5 Although the record demonstrates that James requested the
  amount of Zachary’s debt in an interrogatory and updated totals of
  the outstanding debt after June 2013, the record does not indicate
  that James made any related motions to compel or for sanctions for
  failure to comply with a court order, pursuant to C.R.C.P. 37(a) and
  (b) respectively. See C.R.C.P. 37(a)(2)(B) (if a deponent fails to
  answer a question noticed in a C.R.C.P. 30(b)(6) deposition, the
  party seeking discovery may move for an order compelling an
  answer); C.R.C.P. 37(a)(4) (authorizing sanctions if the discovering
  party’s motion is granted or if the requested discovery is provided
  after the motion was filed).
                                     12
¶ 30   C.R.C.P. 37(c) addresses potentially excluding nondisclosed

  evidence unless the failure to disclose is justified or harmless to the

  other party. Although a prior motion is not required to impose

  sanctions, the burden is on the nondisclosing party to establish

  that its nondisclosure was substantially justified or harmless.

  Miller v. Rowtech, LLC, 3 P.3d 492, 496 (Colo. App. 2000).

¶ 31   When evaluating whether a failure to disclose is harmless

  under C.R.C.P. 37(c), the inquiry is whether the failure to disclose

  will prejudice the opposing party by denying him an adequate

  opportunity to defend against that evidence. Todd v. Bear Valley

  Vill. Apartments, 980 P.2d 973, 979 (Colo. 1999). In this

  determination, courts consider various factors, including:

                (1) the importance of the witness’s testimony;
                (2) the explanation of the party for its failure to
                comply with the required disclosure; (3) the
                potential prejudice or surprise to the party
                against whom the testimony is offered that
                would arise from allowing the testimony; (4)
                the availability of a continuance to cure such
                prejudice; (5) the extent to which introducing
                such testimony would disrupt the trial; and (6)
                the non-disclosing party’s bad faith or
                willfulness.

  Id. at 978.



                                        13
¶ 32   Generally, sanctions under C.R.C.P. 37 “should be applied in a

  manner that effectuates proportionality between the sanction

  imposed and the culpability of the disobedient party.” Pinkstaff,

  211 P.3d at 702 (citation omitted). “[T]he trial judge must craft an

  appropriate sanction by considering the complete range of

  sanctions and weighing the sanction in light of the full record in the

  case.” Id. (quoting Nagy v. Dist. Court, 762 P.2d 158, 161 (Colo.

  1988)). The sanction selected should be the least severe one that

  will ensure full compliance with a court’s discovery orders and be

  commensurate with the prejudice caused to the opposing party. Id.

  Because “[t]he harshest of all sanctions is dismissal or entry of a

  default judgment,” such sanctions “should be imposed only in

  extreme circumstances.” Nagy, 762 P.2d at 161.

                              C.   Analysis

¶ 33   Even if C.R.C.P. 26 required Farm Credit to disclose the

  current amount of Zachary’s debt through the trial date, the record

  supports a conclusion that this nondisclosure was harmless.

¶ 34   The trial court considered the parties’ contentions and the

  information available to James regarding Zachary’s debt. The trial

  court found no material difference between the interrogatory

                                    14
  response and the chief credit officer’s testimony because both

  indicated an amount of debt that “far exceed[ed]” the most

  optimistic estimate given for the Crop Collateral’s value at the time

  of conversion. This supports the conclusion that the nondisclosure

  did not deny James an adequate opportunity to defend against

  Farm Credit’s assertion that the outstanding debt exceeded the

  value of the subject collateral. See Todd, 980 P.2d at 979.

¶ 35   Additionally, the record shows that this evidence constituted a

  brief answer to a single question from a witness whom James had

  deposed multiple times. Although the trial court condemned Farm

  Credit’s behavior in discovery generally and issued sanctions for

  other disputes, it made no findings as to whether Farm Credit acted

  in bad faith in this particular discovery dispute and, in any event,

  this factor is undercut by the considerations noted above. See id. at

  978; see also Nagy, 762 P.2d at 161; Makeen, ¶ 21.

¶ 36   The trial court’s refusal to dismiss the action as a result of

  Farm Credit’s harmless nondisclosure was not manifestly arbitrary,

  unreasonable, or unfair, and it did not misapply the law. See

  Relaford, ¶ 25. Therefore, the trial court did not abuse its

  discretion. See id.

                                    15
                           IV.     The Judgment

¶ 37   James next contends that the trial court reversibly erred in

  determining that several of his defenses were unavailable; rejecting

  his argument that the bankruptcy court’s decision was dispositive

  of the legal issues in the state litigation; and determining, when

  assessing damages, that the date of conversion was the date that

  James harvested the Crop Collateral. We disagree.

                              A.     Defenses

¶ 38   The trial court erred, according to James, when it determined

  that the defenses of abandonment, estoppel, waiver, and consent

  did not relieve him of liability for conversion because the evidence

  allegedly established that Farm Credit “acquiesced” to James’

  taking control of the Crop Collateral. James also argues that the

  trial court misapplied the law regarding his stated defenses to

  conversion. We discern no error.

       1.   Preservation, Standard of Review, and Applicable Law

¶ 39   James raised the defenses of abandonment, estoppel, waiver,

  and consent in his answer, during the trial management

  proceedings, and in his trial brief. In addition, he presented related



                                     16
  evidence at trial, upon which the trial court ruled.6 We therefore

  conclude that James sufficiently preserved this issue. See Berra

  v. Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010)

  (“[T]o preserve the issue for appeal all that was needed was that the

  issue be brought to the attention of the trial court and that the

  court be given an opportunity to rule on it.”).

¶ 40   We review a trial court’s factual findings for clear error, and its

  conclusions of law de novo. Former TCHR, LLC v. First Hand Mgmt.

  LLC, 2012 COA 129, ¶ 37. Factual findings are clearly erroneous

  “only if there is nothing in the record to support” them. Loveland

  Essential Grp., LLC v. Grommon Farms, Inc., 251 P.3d 1109, 1117

  (Colo. App. 2010).

¶ 41   Conversion is “any distinct, unauthorized act of dominion or

  ownership exercised by one person over personal property belonging

  to another.” Stauffer v. Stegemann, 165 P.3d 713, 717 (Colo. App.

  6 The trial court explicitly rejected James’ defenses of consent and
  waiver. We conclude that the trial court rejected James’
  abandonment and estoppel defenses when it found that “Farm
  Credit promptly obtained [the preservation order] and sought to
  enforce that Order to prevent the loss of the . . . Crop Collateral[,
  which] was the best and arguably only measure Farm Credit could
  take in the short time between Zachary’s default and his
  bankruptcy petition.” See Berra v. Springer & Steinberg, P.C., 251
  P.3d 567, 570 (Colo. App. 2010).
                                    17
  2006). Where its interest has priority, a secured party may bring a

  claim for conversion against a party who “wrongfully obtained and

  sold property in which the secured party has a security interest.”

  Former TCHR, ¶ 38.

¶ 42   Credit agreements involving a principal amount in excess of

  $25,000 are subject to the Credit Agreement Statute of Frauds (the

  Statute). § 38-10-124, C.R.S. 2016. Under the Statute, “credit

  agreements” include “[a]ny amendment of, cancellation of, waiver

  of, or substitution of any or all of the terms or provisions of any of

  the credit agreements.” § 38-10-124(1)(a)(II) (emphasis added). No

  “debtor or creditor may . . . maintain . . . a claim relating to a credit

  agreement [subject to the Statute] unless the credit agreement is in

  writing and is signed by the party against whom enforcement is

  sought.” § 38-10-124(2). Importantly, a “credit agreement may not

  be implied under any circumstances.” § 38-10-124(3).

                               2.    Analysis

¶ 43   We agree that the written agreements evidencing Farm Credit’s

  perfected security interest in the Crop Collateral are “credit




                                     18
  agreements” within the meaning of the Statute.7 See

  § 38-10-124(1)(a)(I); see also § 4-9-315(a)(2), C.R.S. 2016 (“A

  security interest attaches to any identifiable proceeds of

  collateral.”). Thus, any waiver involving Farm Credit’s rights to the

  Crop Collateral, including proceeds, would need to be in writing in

  order to be effective. See United States v. Winter Livestock Comm’n,

  924 F.2d 986, 993 (10th Cir. 1991) (noting that the receiver of

  collateral bears the risk of “fail[ing] to obtain release” and

  concluding that “ignorance” of the security interest “is not a

  defense” to conversion of collateral). The record supports the trial

  court’s finding that a written waiver “was never made.”

¶ 44   Although Farm Credit may have “acquiesced” to James’

  cultivating the Crop Collateral to prevent its ruin before harvest, the

  record evidences that Farm Credit never effectively waived its rights

  to proceeds of the collateral. That James was not a party to these

  agreements and that Farm Credit’s conversion claim sounds in tort


  7 The collateral detailed in the security agreement between Farm
  Credit and Zachary included numerous livestock and multiple
  pieces of farming equipment. Setting this additional collateral
  aside, even the conservative $146,000 early estimated value of the
  Crop Collateral, which James referenced in the trial court, exceeds
  the Statute’s $25,000 threshold.
                                     19
  do not change the fact that James took control of, sold, and

  retained the proceeds from property in which Farm Credit retained

  a perfected security interest. See § 38-10-124(1)(a)(II); see also

  Former TCHR, ¶ 38 (noting that a security interest generally

  survives the disposition of collateral). Indeed, the record supports

  the trial court’s finding that, by obtaining the May 2012

  preservation order and seeking its enforcement, Farm Credit

  pursued its “best and arguably only measure” to prevent the loss of

  the Crop Collateral “in the short time between Zachary’s default and

  his bankruptcy petition.” The preservation order was “to prevent

  the subject property from being transferred, sold, moved, relocated,

  assigned, conveyed, or otherwise disposed of” and was served on

  Zachary and James. Accordingly, we conclude that the trial court

  did not err in rejecting James’ waiver defense.

¶ 45   For similar reasons, we conclude that the trial court properly

  rejected James’ consent defense. First, a complete relinquishment

  of Farm Credit’s security interest in the Crop Collateral would need

  to be in writing. See § 38-10-124(2)-(3). Second, the record shows

  that Farm Credit’s actions did not constitute consent to the total

  disposition of collateral to James and the elimination of its security

                                    20
interest.8 See § 4-9-315(a)(1) (“A security interest or agricultural

lien continues in collateral notwithstanding . . . disposition thereof

unless the secured party authorized the disposition free of the

security interest or agricultural lien.”) (emphasis added). While the

record shows that Farm Credit acquiesced to James’ cultivation and

harvest of the otherwise doomed Crop Collateral, it does not show

that Farm Credit consented to its security interest being completely

extinguished; rather, the record shows that Farm Credit sought to

protect its security interest by seeking the preservation order

shortly after it became aware of James’ actions. Thus, this case is

distinguishable from cases where a creditor consented to the

disposition of collateral and lost its security interest as a result.

See First Nat’l Bank of Brush v. Bostron, 39 Colo. App. 107, 110,

564 P.2d 964, 966 (1977) (determining that a creditor lost its


8 Although the trial court incorrectly stated that “acquiescence by a
property owner is not a defense to conversion,” see Colo. Bank & Tr.
Co. v. W. Slope Invs., Inc., 539 P.2d 501, 504 (Colo. App. 1975)
(noting that “acquiescence or consent” constitute a defense to the
conversion of collateral), we conclude that this statement was
merely ancillary to the court’s decision that the facts were
insufficient to show consent or acquiescence to James’ taking
possession of the collateral free of Farm Credit’s security interest.
Moreover, James did not present acquiescence as a defense
separate from consent in the trial court or on appeal.
                                   21
  security interest in cattle feed when it “authorized the use of the

  feed” by a third party who was free to destroy the feed by giving it to

  cattle).

¶ 46    On this record, the trial court did not err in rejecting James’

  consent defense.

¶ 47    Next, we discern no error in the trial court’s rejection of James’

  abandonment defense. The trial court found that, rather than

  abandoning the Crop Collateral or its security interest, Farm Credit

  undertook to prevent the loss of the Crop Collateral (or proceeds) by

  obtaining the May 2012 preservation order, seeking its

  enforcement, and serving it on Zachary and James. Even with this

  notice, James took the risk of continuing to cultivate and harvest

  the Crop Collateral.

¶ 48    The trial court did not find that Farm Credit manifested intent,

  or took action, to abandon the Crop Collateral and related claims at

  any point, including during the bankruptcy adversary proceeding.

  The trial court’s finding that the Crop Collateral “would have

  perished” without James’ actions did not require it to find that

  Farm Credit intentionally abandoned that collateral; Farm Credit’s

  failure to harvest does not necessarily mean it intended to abandon

                                     22
  its interest in the proceeds of the Crop Collateral. See Hoff

  v. Girdler Corp., 104 Colo. 56, 59, 88 P.2d 100, 102 (1939)

  (“Abandonment consists of two factors, the intention and the act.”).

  Because these findings have record support, we conclude that the

  trial court did not err in finding that the evidence was insufficient to

  establish James’ abandonment defense. See Loveland Essential

  Grp., 251 P.3d at 1117; see also Hoff, 104 Colo. at 59, 88 P.2d at

  102.

¶ 49     Finally, the trial court did not err in rejecting James’ estoppel

  defense. As we have explained, Farm Credit did not consent to the

  total disposition of the Crop Collateral to James or waive its

  security interest under the credit agreements; thus, waiver or

  consent do not provide grounds for an estoppel defense here. See

  18 Am. Jur. 2d Conversion § 111 (2017). While the trial court

  found that Farm Credit “acquiesced” to James’ cultivating the

  crops, it also found that Farm Credit obtained and sought to

  enforce the preservation order against James with notice to James

  before the 2012 harvest. Thus, the trial court properly rejected an




                                      23
  estoppel defense grounded in any benefit James conferred to Farm

  Credit.9 See id.

        B.   Bankruptcy Court Decision and Collateral Estoppel

¶ 50   James contends that the trial court erred when it determined

  that the bankruptcy court’s decision did not preclude Farm Credit

  from recovering on its claims and denied James’ motion for a

  directed verdict. We are not persuaded.

                1.   Preservation and Standard of Review

¶ 51   The parties agree that James properly preserved this issue.

¶ 52   We review collateral estoppel claims de novo. See Stanton

  v. Schultz, 222 P.3d 303, 307 (Colo. 2010). But, we examine the

  trial court’s factual findings for clear error. Goluba v. Griffith, 830

  P.2d 1090, 1091 (Colo. App. 1991).

                              2.   Discussion

¶ 53   Collateral estoppel, or issue preclusion, bars relitigating an

  issue when a court has already decided that issue. A-1 Auto Repair

  & Detail, Inc. v. Bilunas-Hardy, 93 P.3d 598, 600 (Colo. App. 2004).

¶ 54   Collateral estoppel precludes an issue’s relitigation where:



  9 The trial court allowed James to recover the estimated expenses
  incurred to produce and harvest the Crop Collateral.
                                     24
             (1) the issue is identical to an issue actually
             litigated and necessarily adjudicated in the
             prior proceeding; (2) the party against whom
             estoppel was sought was a party to or was in
             privity with a party to the prior proceeding; (3)
             there was a final judgment on the merits in the
             prior proceeding; and (4) the party against
             whom the doctrine is asserted had a full and
             fair opportunity to litigate the issues in the
             prior proceeding.

  Stanton, 222 P.3d at 307. In cases involving the same factual

  issues, if not the same legal issues, “[t]he doctrine of issue

  preclusion applies to the relitigation of “factual . . . matters” that a

  court previously litigated and decided.” Calvert v. Mayberry, 2016

  COA 60, ¶ 15 (citation and alteration omitted).

¶ 55   Here, the legal issues before the bankruptcy court were

  different from those before the trial court. The bankruptcy court

  decided Farm Credit’s claims objecting to the discharge of Zachary

  pursuant to 11 U.S.C. § 523 and alleging fraud, embezzlement, and

  intentional injury to property. The trial court, in contrast, decided

  Farm Credit’s conversion claims against several defendants

  grounded in state common law tort and in Farm Credit’s rights

  provided by its security agreements. The record supports the trial

  court’s finding that “the focus of the [bankruptcy court’s]


                                     25
  conclusions of law remain[ed] on Zachary[’s] actions regarding the

  crops,” not James’. The issues litigated in the two proceedings at

  issue were not “identical.” See Stanton, 222 P.3d at 307; see also In

  re Musgrave, No. ADV.09-01006, 2011 WL 312883, at *11 (B.A.P.

  10th Cir. Feb. 2, 2011) (unpublished opinion) (“Although conversion

  of property of another can serve as grounds for nondischargeability

  under § 523(a)(6), not every conversion constitutes a willful and

  malicious injury within the meaning of § 523(a)(6).”) (footnote

  omitted). Therefore, although the trial court applied the doctrine of

  collateral estoppel to certain factual issues decided by the

  bankruptcy court, the trial court correctly determined that

  collateral estoppel did not apply to the legal issues before it. The

  trial court, therefore, properly denied James’ motion for a directed

  verdict. Even if the bankruptcy court loosely used the term

  “acquiesce” in describing Farm Credit’s actions concerning the Crop

  Collateral, it did not adjudicate the legal effect of the preservation

  order that Farm Credit sought and enforced. See Calvert, ¶ 15.

                        C.   Damages Assessment

¶ 56   Lastly, James argues that the trial court misapplied the law

  when assessing damages by determining that the date of conversion

                                     26
  was the date of harvest. James asserts that the trial court should

  have found that the date of conversion occurred no later than the

  end of the spring of 2012 when James took over the crops’

  cultivation. We disagree.

       1.   Preservation, Standard of Review, and Applicable Law

¶ 57   James preserved this issue for appeal.

¶ 58   The trial court “has the sole prerogative to assess the amount

  of damages, and its award will not be set aside unless it is

  manifestly and clearly erroneous.” Lawry v. Palm, 192 P.3d 550,

  565 (Colo. App. 2008). The trial court also has the discretion to

  determine the appropriate measure of damages, taking “the goal of

  reimbursement of the plaintiff for losses actually suffered” as its

  principal guidance. Heritage Vill. Owners Ass’n, Inc. v. Golden

  Heritage Inv’rs, Ltd., 89 P.3d 513, 516 (Colo. App. 2004). Whether

  the trial court misapplied the law when determining the measure of

  damages presents a question of law which we review de novo. See

  Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s Dep’t, 196 P.3d 892,

  894 (Colo. 2008) (reasoning that a trial court erred as a matter of

  law when it applied the wrong legal standard); see also Antero Res.

  Corp. v. Strudley, 2015 CO 26, ¶ 14.

                                    27
¶ 59   “The measure of damages for conversion is generally the value

  of the converted property at the time and place of the

  misappropriation plus interest at the legal rate from the time of the

  conversion until the time of trial.” Glenn Arms Assocs. v. Century

  Mortg. & Inv. Corp., 680 P.2d 1315, 1317 (Colo. App. 1984).

  Conversion is not a continuing tort. Emp’rs’ Fire Ins. Co. v. W.

  Guar. Fund Servs., 924 P.2d 1107, 1111 (Colo. App. 1996).

                              2.   Analysis

¶ 60   The trial court found that James began harvesting the Crop

  Collateral as early as May 2012. According to the court, calculating

  the value of the Crop Collateral was difficult because James claimed

  that he kept no records of “his 2012 farming activities” — a claim

  which the trial court found “lack[ed] credibility.” James presented

  no evidence in the trial court regarding an estimation of his cost,

  minus Zachary’s prior contributions, to cultivate the Crop

  Collateral.10 As a result, the trial court had to calculate damages


  10Instead, James seemed to advocate during trial that the court
  should adopt Farm Credit’s preliminary valuation made in April
  2012, before the harvest, totaling $146,000, rather than Farm
  Credit’s trial expert’s valuation exceeding $495,000. See Carder,
  Inc. v. Cash, 97 P.3d 174, 185 (Colo. App. 2003) (“The trial court, as
  fact finder, has broad discretion in determining the amount of
                                    28
  based on the expert valuations provided by Farm Credit alone.

  Under these circumstances, we agree that the proper measure of

  damages is “the estimated value of the crop at the time of harvest

  minus the estimated cost to produce the crop.” See Roberts v. Lehl,

  37 Colo. App. 351, 352-55, 149 P. 851, 852 (1915) (applying this

  measure of damages to a case involving the destruction of crops);

  see also W. W. Allen, Annotation, Measure of Damages for Injury to

  or Destruction of Growing Crop, 175 A.L.R. 159 (originally published

  in 1948) (noting judicial exceptions regarding the measure of

  damages for damages involving crops, due to the unique nature of

  assessing the value of growing crops); 2A Stephen A. Hess, Colorado

  Practice Series: Methods Of Practice § 81:49 (6th ed. 2016) (same).

¶ 61   Because we conclude that the trial court applied the correct

  standard in assessing damages, we defer to its factual findings that

  are supported by the record and discern no error with the damages

  award. See Lawry, 192 P.3d at 565.




  damages.”); see also Brandt v. MacLellan, 495 P.2d 250, 251 (Colo.
  App. 1972) (not published pursuant to C.A.R. 35(f)) (refusing to
  substitute the reviewing court’s judgment for the trial court’s where
  the trial court’s findings were supported by some parts of the
  evidence and conflicted by others).
                                   29
                          V.   Conclusion

¶ 62   The orders and judgment are affirmed.

       JUDGE ROMÁN and JUDGE BOORAS concur.




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