Free Response - District Court of Colorado - Colorado

Case 1:01-cv-00083-REB-CBS

Document 349

Filed 11/29/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:01-CV-00083-REB-CBS CABEZA DE VACA LAND & CATTLE CO., LLC, a Colorado limited liability company, Plaintiff, vs. STOCKMAN WATER COMPANY, LLC, a Colorado limited liability company, Defendant, -andRELATED CASES. RESPONSE TO DEFENDANTS' NOTICE OF SAGUACHE COUNTY DISTRICT COURT'S ORDER GRANTING SUMMARY JUDGMENT ON REMAINING CLAIMS American Water Development, Inc. ("AWDI"), through its counsel, LOTTNER RUBIN FISHMAN BROWN & SAUL, P.C., files its Response to Notice to Saguache County District Court's Order Granting Summary Judgment on Remaining Claims, and states as follows: 1. In their Notice of Saguache County District Court's Order Granting Summary

Judgment on Remaining Claims, Defendants attempt to utilize findings in the State Court's recent Order Granting Summary Judgment on Remaining Claims issued on November 16, 2005 ("Summary Judgment Order"). However, as stated in AWDI's Reply in Support of Modified Motion for Relief from Order, the Summary Judgment Order is not a final order and should not be considered by this Court in resolving any of the issues before it. By way of this Response AWDI merely wishes to offer this Court case law demonstrating that the Summary Judgment Order is not a final judgment and should not be considered by this Court.

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Case 1:01-cv-00083-REB-CBS

Document 349

Filed 11/29/2005

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2.

State law governs the application of the issue preclusion doctrine. See Migra v.

Warren City Sch. Dist. Bd. of Ed., 465 U.S. 75, 81 (1984). In Rantz v. Kaufman, 109 P.3d 132 (Colo. 2005) the Colorado Supreme Court specifically held that a pending appeal prevents a judgment from constituting a final judgment for purposes of issue preclusion. Id. at 132. That court stated: Although the order of the postconviction court was not tentative, but rather accompanied by definite findings of fact, and [the party defending against issue preclusion] had ample opportunity to be heard on the motion, review of the judgment has not been completed. Carpenter requires an opportunity for review before a judgment can be considered final for purposes of issue preclusion. Id. (citing Carpenter v. Young, 773 P.2d 561 (Colo. 1989). As stated in Carpenter v. Young: In order to be accorded preclusive effect, a judgment must be "sufficiently firm" in the sense that it was not tentative, the parties had an opportunity to be heard, and there was an opportunity for review. Carpenter v. Young, 773 P.2d 561, 568 (Colo. 1989), (emphasis added), (citing Restatement (Second) of Judgments § 13 (1983); Lummus v. Commonwealth Oil Refining Co., Inc., 297 F.2d 80 (2d Cir.1961)). 3. The Summary Judgment Order was issued on November 16, 2005. Therefore,

pursuant to C.A.R. 4(a), AWDI has forty-five days, or until January 3, 2006 to file a Notice of Appeal to the Colorado Court of Appeals. AWDI is currently contemplating such an appeal. Therefore, the Summary Judgment Order is not a final order for purposes of issue preclusion until either the expiration of the deadline to file an appeal, or the completion of an appeal, since currently there has not been any opportunity for review. Accordingly, since the Summary Judgment Order is not a final order, it should not be considered in resolving any issue before this 2
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Case 1:01-cv-00083-REB-CBS

Document 349

Filed 11/29/2005

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Court. Defendants' attempt to use the Summary Judgment Order before an opportunity for review is improper and the Order has no relevance to this case until it is a final order. Respectfully submitted this 29th day of November 2005. s/ Richard I. Brown Patrick J. Casey LOTTNER RUBIN FISHMAN BROWN & SAUL, PC 633 Seventeenth Street, Suite 2700 Denver, CO 80202 Telephone (303) 292-1200 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 29th day of November 2005 a true and correct copy of the foregoing RESPONSE TO NOTICE OF SAGUACHE COUNTY DISTRICT COURT'S ORDER GRANTING SUMMARY JUDGMENT ON REMAINING CLAIMS was served via the CM/ECF system, addressed as follows: Allan L. Hale, Esq. John G. Lubitz, Esq. Robert G. Hoban, Esq. HALE FRIESEN, LLP 1430 Wynkoop St., Suite 300 Denver, CO 80202 Attorneys for Stockman's Water Co. and Gary Boyce Stanley L. Garnett, Esq. A. W. Victoria Jacobs, Esq. Susan P. Klopman, Esq. Annie T. Kao, Esq. BROWNSTEIN HYATT & FARBER, PC 410 17th St., Suite 2200 Denver, CO 80202-4437 Attorneys for Vaca Partners, LP and Farrallon Capital Mgmt., LLC, and Jason Fish Robert J. Bruce, Esq. LINDSEY & BRUCE, P.C. 730 17th Street, Ste. 370 Denver, CO 80202 Attorneys for Peter Hornick

Elliot R. Peters, Esq. Michael S. Kwun, Esq. KEKER & VAN NEXT, LLP 710 Sansome Street San Francisco, CA 94111-1704 Attorneys for Vaca Partners, LP and Farrallon Capital Mgmt., LLC, and Jason Fish

s/ Ed Wesselhoff

3
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