Free Reply to Response to Motion - District Court of Colorado - Colorado

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

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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 REPLY IN SUPPORT OF 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 Reply in Support of Motion for Leave to File Motion for Summary Judgment, and in support thereof states as follows: 1. Plaintiff argues that the Authority is prevented from filing a dispositive motion

based upon the affirmative defense of statute of frauds. However, the Authority pled a number of affirmative defenses and although the Authority's Answer does not include the specific statutory section, the Authority's Answer includes an adequate statute of frauds defense. 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.). 2. Regardless of whether the Authority's Answer contains adequate language to

assert the statute of frauds defense, the Authority has not waived its right to file a motion based upon the applicability of the statute of frauds to Plaintiff's claims. See, City of Yonkers v. Otis

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Elevator Co., 649 F.Supp. 716 (S.D.N.Y. 1986) (on a motion for summary judgment, the district court may properly consider the statute of frauds not raised in the answer, even without formal amendment to pleadings.). 3. Plaintiff also asserts that the Authority's submittal of a Motion for Summary

Judgment violates the mandate of the Tenth Circuit. First, while the Tenth Circuit's order remanded the matter for trial, the Tenth Circuit's Order does not contain any language to suggest that the only way the case is to be resolved is trial. Such a result would preclude any settlement efforts. Second, the Tenth Circuit specifically mentioned the statute of frauds issue and did not in any way order that the parties were precluded from filing further dispositive motions on issues not resolved by the Tenth Circuit. The Tenth Circuit's mandate addressed the issues on appeal and determined that certain findings made by the trial court were issues of fact to be resolved by a jury. The fact that this matter was remanded by the Tenth Circuit does not preclude Defendants from filing a motion for summary judgment based upon the statute of frauds. 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 27th day of March, 2006.

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

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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

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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of March, 2006, a true and correct copy of the foregoing DEFENDANT ASPEN/PITKIN COUNTY HOUSING AUTHORITY'S REPLY IN SUPPORT OF 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 Webb _________________________________________

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