Norwest Corporation and Subsidiaries, Successor in Interest to United Banks of Colorado, Inc., and Subsidiaries, et al. - Page 78

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          UBC had mistakenly used a 7-year recovery period.  In the answer,           
          respondent merely denied petitioner’s averment.  In their respective        
          trial memoranda, neither party identified the discrepancy in                
          treatment between the furniture and fixtures and the 1990-91                
          furniture and fixtures.  In their stipulations, however, the parties        
          recognize the discrepancy, and petitioner concedes that it is not           
          entitled to any additional depreciation with respect to the 1990-91         
          furniture and fixtures.  On brief, petitioner argues that the only          
          applicable recovery period issue before the Court concerns the              
          furniture and fixtures.  Respondent argues that the Court must also         
          determine the applicable recovery period with respect to the 1990-91        
          furniture and fixtures because that issue either (1) was put in             
          issue by the petition or (2) was tried with consent of the parties.         
               We do not believe that petitioner intended to put into issue           
          the applicable recovery period with respect to the 1990-91 furniture        
          and fixtures, nor do we believe that that issue was tried with              
          petitioner’s consent.  Rule 31(d) requires us to construe all               
          pleadings to do substantial justice.  Substantial justice would not         
          be done were we to hold petitioner to an unintended construction of         
          its pleading, especially in light of respondent’s uninformative             
          response.  Clearly, the issue was not tried with petitioner’s               
          consent in light of the stipulation and the lack of any notice by           
          respondent that he intended to raise the issue.  The parties have           
          relied only on the stipulated facts in briefing this issue, so we           
          cannot conclude that petitioner failed to object to evidence that           
          should have put petitioner on notice that the applicable recovery           




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