Free Motion for Leave - District Court of Colorado - Colorado

Case 1:03-cv-01305-MEH-CBS

Document 96

Filed 03/13/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01305-MEH-CBS

VICTORIA GIANNOLA Plaintiff v. ASPEN/PITKIN COUNTY HOUSING AUTHORITY and STEVE BARWICK Defendants DEFENDANT ASPEN/PITKIN COUNTY HOUSING AUTHORITY'S MOTION FOR LEAVE TO FILE MOTION SUMMARY JUDGMENT RE: STATUTE OF FRAUDS Defendant Aspen/Pitkin County Housing Authority, by and through its attorneys, Treece, Alfrey, Musat & Bosworth, P.C., hereby submits this Motion for Leave to File Motion for Summary Judgment, and in support thereof states as follows: CERTIFICATE OF COMPLIANCE Pursuant to D.C.COLO.LCivR 7.1(a), undersigned counsel certifies that his office has conferred with counsel for Plaintiff regarding the relief requested. Plaintiff objects to the relief requested. 1. On July 21, 2003, Plaintiff filed this wrongful termination lawsuit against the

Authority and Steve Barwick. See Complaint. In her Complaint, Plaintiff asserts four causes of action: (1) breach of employment contract; (2) breach of the duty of good faith and fair dealing; (3) promissory estoppel; and (4) a claim under 42 U.S.C. § 1983.

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2.

On August 16, 2004, the Authority filed a Motion for Summary Judgment seeking

dismissal of all of Plaintiff's claims. See Defendant Aspen/Pitkin County Housing Authority's Motion for and Brief in Support of Summary Judgment. In its Motion, the Authority asserted that the parties did not enter into an employment contract and, as a result, Plaintiff was an "atwill" employee for whom this action cannot be maintained. By filing this Motion, the Authority did not waive any additional defenses or arguments with regard to Plaintiff's claims. 3. On March 24, 2005, Magistrate Judge Schlatter issued an Order granting the

Authority's Motion for Summary Judgment and dismissing Plaintiff's action. See Order Granting Summary Judgment in Favor of Defendants. The Magistrate Judge found as follows: (1) the Authority and the City were joint employers of Plaintiff; (2) the undisputed facts demonstrated the existence of a mutual mistake of fact between Plaintiff and representatives of the Authority such that no contract for term of years was ever formed between them and so Plaintiff was an employee at-will; and (3) even if a contract had been formed, it was superseded by the action of the parties in relation to the personnel manuals. See Order Granting Summary Judgment in Favor of Defendants. The District Court's Order also made reference to the defense of statute of frauds, but made no dispositive findings as to the application of the statute of frauds to Plaintiff's claims. See Order Granting Summary Judgment in Favor of Defendants. 4. Plaintiff appealed Magistrate Judge Schlatter's dismissal of Plaintiff's claims and

on February 7, 2006, the Tenth Circuit of the United States Court of Appeals reversed Magistrate Judge Schlatter's Judgment and remanded the matter for trial. See Order and Judgment. The Tenth Circuit's Order also referenced the defense of statute of frauds but stated that the issue was 2

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not before the Court as the parties did not brief the issue as a part of the appeal. See Order and Judgment. While the issue had not been previously briefed by the parties, the Defendants should not now be precluded from submitting a motion based upon the statute of frauds defense. 5. The Authority respectfully requests that this Court allow the filing of a Motion for

Summary Judgment based upon the application of the statute of frauds to Plaintiff's claims. The defense has been properly raised by the Authority. See, Salomon v. McRae, 9 Colo.App. 23, 47 P. 409 (Colo.App. 1896) (a party may rely on the statute of frauds under the general issue or a general denial.). WHEREFORE, Defendant Aspen/Pitkin County Housing Authority respectfully requests this Court to grant leave to file a Motion for Summary Judgment based upon the application of the Statute of Frauds to Plaintiff's claims, and for such other relief as the Court deems just and proper. Respectfully submitted this 13th day of March, 2006.

TREECE, ALFREY, MUSAT & BOSWORTH, P.C.

s/ Laura A. Childs __________________________________ Paul E. Collins Laura A. Childs 999 18th Street, Suite 1600 Denver, Colorado 80202 (303) 292-2700 Attorneys for Defendant Aspen/Pitkin County Housing Authority 3

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CERTIFICATE OF SERVICE I hereby certify that on this 13th day of March, 2006, a true and correct copy of the foregoing DEFENDANT ASPEN/PITKIN COUNTY HOUSING AUTHORITY'S MOTION FOR LEAVE TO FILE MOTION SUMMARY JUDGMENT RE: STATUTE OF FRAUDS was served upon the following by the method indicated: Steven J. Dawes, Esq Light, Harrington & Dawes, P.C. 1512 Larimer Street, Suite 550 Denver, CO 80202 via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail

Sander N. Karp, Esq. Leavenworth & Karp, P.C. 201 14th Street, Suite 200 P. O. Drawer 2030 Glenwood Springs, CO 81602

s/Theresa L. Webb ________________________________

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