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-1305-MEH-CBS VICTORIA GIANNOLA Plaintiff, v. ASPEN/PITKIN COUNTY HOUSING AUTHORITY and STEVE BARWICK, Defendants. ______________________________________________________________________________ DEFENDANT STEVE BARWICK'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON THE STATUTE OF FRAUDS ______________________________________________________________________________ Defendant Steve Barwick, by his undersigned attorney, pursuant to Rule 56 of the Federal Rules of Civil Procedure, respectfully submits his Reply Brief in support of his Motion for Summary Judgment on the Statute of Frauds. In Plaintiff's Response to Defendant Barwick's Motion for Summary Judgment on the Statute of Frauds ("Response Brief"), Victoria Giannola does not dispute that the only claim asserted against this Defendant is under 42 U.S.C. § 1983. In addition, she does not dispute the facts asserted by this Defendant in is Motion for Summary Judgment and Memorandum Brief. Further, she does not dispute that there is no document or memorandum in writing and signed by Ms. Giannola, the Aspen/Pitkin County Housing Authority (APCHA), the City of Aspen, Colorado, or this Defendant, Steve Barwick, memorializing any alleged contract of employment.

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Plaintiff musters only two cases in support of her contention that the Colorado Statute of Frauds, § 38-10-112(1)(a), C.R.S., does not apply. Those cases are Vinton v. Adam Aircraft Industries, Inc., 232 F.R.D. 650 (D.Colo. 2005) and Buechner v. Rouse, 538 P.2d 117 (Colo. App. 1975) (not selected for official publication). However, neither case supports her argument. Vinton v. Adam Aircraft Industries, Inc. involved, among other claims, a claim for breach of an oral employment contract. The Plaintiff claimed that he was promised employment "until retirement." 232 F.R.D. 650, 658. The court denied the portion of defendant's motion for summary judgment on the statute of frauds because contracts for "permanent" employment do not violate the statute of frauds. Pickell v. Arizona Components Company, 902 P.2d 392 (Colo. App. 1994). Employment for an indefinite period of time is at-will employment. An oral employment contract which is for an indefinite period of time is not barred by the statute of frauds because performance is possible within one year. A contract for permanent employment is no more than an indefinite general hiring terminable at the will of either party. Pittman v. Larson Distributing Company, 724 P.2d 1379 (Colo. App. 1986). Contracts for "permanent" employment include employment for life, until retirement, until the employee leaves voluntarily, so long as the employee performs satisfactorily, or so long as the employer remains in business. These contracts do not violate the statute of frauds because any of these events could occur within one year. Pickell v. Arizona Components Company, 902 P.2d 392 (Colo. App. 1994). In this case, Plaintiff Victoria Giannola has taken the position that she was offered, and she accepted, a contract of employment with a term of no less than five years. She has not alleged that she was promised a contract for permanent employment. Rather, this alleged

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contract, according to Plaintiff, was a contract for 5 years of work. (See Exhibit A hereto, Deposition of Victoria Giannola, page 73, lines 8-18; page 74, lines 4-12; page 77, lines 10-23; page 78, lines 3-19.) Vinton v. Adam Aircraft Industries, Inc. is not applicable because it was a claim of a promise of permanent employment, i.e., indefinite employment; whereas in this case, Plaintiff Giannola has asserted that she has a contract of employment for five years. The only other case relied on by Plaintiff in her Response Brief is Buechner v. Rouse, 538 P.2d 117 (Colo. App. 1975) (not selected for official publication). As an initial matter, Buechner v. Rouse was not selected for official publication by the Colorado Court of Appeals. The Colorado appellate courts disapprove of citations to opinions that are not selected for official publication. See Colorado Appellate Rule 35(f): "Those opinions designated for official publication shall be followed as precedent by the trial judges of the State of Colorado." Further, the facts of Buechner do not appear to support the Plaintiff's contentions in this case. In Buechner, the allegations were that plaintiff Charles Buechner sold his camera supply business to Fishback, Inc. in exchange for 10% of the capital stock of Fishback. The allegations were that Fishback entered into a written contract with Buechner to manage the camera supply business, allegedly for as long as Buechner was a stockholder in Fishback. Among the claims brought by Buechner was a claim of breach of employment contract. In considering defendants' motion for summary judgment, the trial court determined that certain terms of the employment contract were lacking and could not be supplied by parol testimony and that the oral terms of the contract violated the statute of frauds. The Court of Appeals reversed, concluding that the statute of frauds was not applicable because in that case the contract could have been terminated within

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a year of its execution by Buechner's death, among other things, and therefore the contract could have been performed within one year. Although the facts are not clearly explained in the case, Buechner appears to be distinguishable on the basis that it was a contract for employment for an indefinite term. At least, nothing is recited in the facts of the case to indicate that Fishback, Inc. agreed to employ Charles Buechner for any finite period of time. In the case at bar, contrary to Buechner, Victoria Giannola has alleged that she was promised a contract of employment for five years. Buechner does not appear to be factually similar to the case at bar. In her Response Brief, Plaintiff does not agree that Chidester v. Eastern Gas and Fuel Associates, 859 P.2d 222 (Colo. App. 1992), is appropriate authority. In Chidester, the plaintiffs had entered into an oral agreement to accept employment. Among the inducements offered, according to plaintiffs, was employment for a minimum of five years. The Court of Appeals agreed with the trial court's dismissal of the breach of contract claim because it was barred by the Colorado Statute of Frauds, § 38-10-112(1)(a), C.R.S. Plaintiff Giannola argues that Chidester is not relevant because that case had to do with an oral contract for at-will employment; whereas, Ms. Giannola contends that her claim is not premised on a contract for at-will employment but on a contract for a term of five years. However, Plaintiff errs in her argument. Chidester is relevant to the analysis in this case because in Chidester it was not the "at-will" employment status that was significant; it was the fact that the plaintiffs claimed that the employment contract was for a minimum of five years. Because

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the five-year employment contract in Chidester was not reduced to writing, it was barred by the statute of frauds.1 CONCLUSION The Colorado Statute of Frauds, § 38-10-112(1)(a), C.R.S., renders void an agreement that by its terms cannot be performed within one year from the making of the agreement, unless the agreement is in writing and signed by the party to be charged. Lucas v. Whittaker Corp., 335 F. Supp. 889 (D. Colo. 1971), aff'd 470 F.2d 326 (10th Cir. 1972). Presuming, without admitting, that Victoria Giannola did enter into a contract of employment for a term of no less than five years (regardless of whether the alleged contract was employment at-will or employment for which termination could only be for cause), the contract is void under the Colorado Statute of Frauds because (1) a contract of employment for a term of no less than five years excludes, by its very terms, the possibility of performance within one year; and (2) there is no document or memorandum in writing and signed by Ms. Giannola, APCHA, the City of Aspen, Colorado, or this Defendant, Steve Barwick, memorializing such an agreement. An oral contract that is void under the statute of frauds cannot support a constitutional claim. Therefore, Plaintiff has no claim under 42 U.S.C. § 1983. WHEREFORE, Defendant Steve Barwick respectfully requests that summary judgment be entered in his favor and that this Court dismiss, with prejudice, Plaintiff's claim under 42 U.S.C. § 1983.

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Plaintiff Giannola claims that her alleged contract precluded termination "without cause." For purposes of the statute of frauds issue, whether her employment could have been terminated with or without cause is of no import. The point is that the alleged employment contract cannot be performed in less than one year and is, therefore, barred by the statute of frauds. 5

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Respectfully submitted, s/ Steven J. Dawes ___________________________________ Steven J. Dawes Light, Harrington & Dawes, P.C. 1512 Larimer St., Suite 300 Denver, CO 80202 Phone: 303-298-1601 Fax: 303-298-1627 E-mail: [email protected] Attorney for Defendant Steve Barwick

CERTIFICATE OF SERVICE The undersigned herein certifies that on this 27th day of March 2006 a true and complete copy of the foregoing DEFENDANT STEVE BARWICK'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON THE STATUTE OF FRAUDS was electronically filed using the CM/ECF system, which will send notification of such filing to the following e-mail addresses of the parties Sander N. Karp, Esq. [email protected] Paul E. Collins, Esq. [email protected]

s/ Steven J. Dawes ___________________________________ Steven J. Dawes Light, Harrington & Dawes, P.C. 1512 Larimer St., Suite 300 Denver, CO 80202 Phone: 303-298-1601 Fax: 303-298-1627 E-mail: [email protected] Attorney for Defendant Steve Barwick

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