Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01291-MSK-CBS

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Filed 12/11/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-1291-MSK-CBS FRIEDA E. ENSSLE, BURKE E. ENSSLE and HEIDI ENSSLE WILSON Plaintiff(s), v. ILLINOIS TOOL WORKS, INC.; SAMES CORPORATION; BINKS RESEARCH & DEVELOPMENT CORPORATION; and JOHN DOE/JANE DOE (any person receiving value for transfer of Binks R&D assets). Defendant(s). _____________________________________________________________________________ PLAINTIFFS' RESPONSE TO DEFENDANT ILLINOIS TOOL WORKS, INC.'S MOTION IN LIMINE TO EXCLUDE TESTIMONY ON PETER BOWES' LOST PROFITS MODEL (PACER 334) _____________________________________________________________________________ Plaintiffs Frieda E. Enssle, Burke E. Enssle and Heidi E. Wilson (the "Enssles"), through their undersigned counsel, submit the following response to Defendant Illinois Tool Works, Inc.'s ("ITW") motion in limine to exclude testimony on Peter Bowes' lost profits model (Pacer 334). Plaintiffs object to all motions in limine filed by Illinois Tool Works, Inc., as being beyond the date set in the Trial Preparation Order dated January 29, 2004. 1. On November 22, 2005, ITW filed a motion for extension of time for certain trial preparation order deadlines (Pacer 328), including extension of the deadline to file motions in limine.

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2. On November 23, 2005, before Plaintiffs had opportunity to respond to the motion, the court granted ITW's motion in part (Pacer 329), including allowing ITW to file motions in limine not later than November 30, 2005, 3. On November 29, 2005, Plaintiffs filed a motion for reconsideration of the court's order granting ITW's request for an extension of time to file motions in limine (Pacer 331). ITW knew or should have known of the existence of the Trial Preparation Order, at the very least because ITW knew of the court's civil practice standards, which state in part that the filing of motions in limine is governed by the Trial Preparation Order. 4. Plaintiffs' motion for reconsideration has not yet been ruled upon. 5. On November 30, 2005, ITW filed seven motions in limine (Pacer 333-339). 6. Plaintiffs hereby renew and preserve their request for the court to deny ITW an extension of time for filing any motions in limine, and thereby denying all said motions as untimely filed. Specific response to Pacer 334, Motion in limine to exclude testimony on Peter Bowes' lost profits model. Summary This motion in limine is really the same as the Rule 702 motion for Mr. Bowes, scheduled for completion at hearing on January 6, 2006. Further, the motion is premature, and seeks to deny Plaintiffs the opportunity to present evidence of their damages. Any determination of what Plaintiffs can or cannot prove should be made after the evidence has been presented. Then the court can fairly assess any such motion that is made by ITW. The consequential damages suffered by Plaintiffs because of ITW's breach of contract were reasonably foreseeable
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and the natural consequence of the breach of contract. Mr. Bowes' model was to compare two scenarios, one that happened and one that did not happen because of the contamination. 1. ITW argues that the model is "flatly contradicted in the record." Motion paragraph 4. ITW then takes selected portions of deposition testimony to support its argument. There

conclusions that ITW draws from the testimony cited are not the only conclusions that can be drawn from the testimony cited. Nor does it preclude other testimony from being offered at trial that supports the damages sustained by the Plaintiffs. 2. For example, ITW argues that the property was never put on the market in 2001. True enough, but there is additional evidence to be given at trial that the Plaintiffs wanted to put it on the market, were working with Mr. Van Ark to do just that, and that Burke E. Enssle and Mr. Van Ark had signed a listing agreement. There is further evidence to be given at trial that a reason the property not put on the market then was the discovery that the contamination on the Property had not been cleaned up, as promised by the defendants. There is an abundance of evidence to present to the jury about possible sales in both 1998 and in 2001. 3. Whether or not Mr. Silvers was aware of any interest in the property in either 1998 or 2001 is not dispositive of the question of Ball Corporation's interest in the property. In fact there is competent evidence to present a trial of Ball's serious interest in the property in 1997 that was turned away because of the contamination. See, for example, the letter of intent that Ball issued on September 16, 1997, for a sublease of the property and an option to purchase the Property. Joint Exhibit 40. 4. There is evidence to present from other involved individuals that Ball Corporation lost interest in the property in 1997 when it learned of pollution on the Property.
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5. Mr. Silvers testified in his deposition that he thought Ball paid at the high end of market value for the property. He testified that he thought the property was worth in the neighborhood of $2 million, and the appraisers found that the property had a market value of $2 million or less. In addition, Mr. Silvers has stated that the Property "is strategically positioned to help our campus grow and meet the ever increasing parking requirements. Joint Exhibit 96. 6. The sale price of the Property was negotiated by David Hoover, president CEO of Ball Corporation, not by Mr. Silvers. Mr. Hoover stated that he was willing to pay more than the market value of the property because the corporation had need of the Property. Response Exhibit 1, Declaration of Daniel Burkhardt. 7. In short, ITW seeks to prevent Plaintiffs from presenting all their evidence in support of their damage claims, and do so by selection of very limited, discreet passages from some depositions. It is unfair to Plaintiffs to deny them the opportunity to present their case. This case should be tried to the jury, not by deposition. 8. In Colorado National Bank v. Friedman, 846 P 2d 159 (Colo. 1993), cited by ITW, the court's decision on damages came after the entry of all evidence. The court there found that Mr. Friedman has not proved his consequential damages. Colo. Nat'l Bank at 175. 9. Plaintiffs are entitled to the opportunity to prove up their damages, including that the damages are reasonably certain and foreseeable. It is foreseeable that Plaintiffs would sell the Property. It is foreseeable that the contamination that the Defendants put on the Property and then left there unremediated with a regulatory cloud on the Property, would hinder a sale. It is foreseeable that the adjoining landowner, Ball Corporation, would be the likely purchaser.

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10. Mr. Bowes chose rates of return, cap rates and interest rates that he used in his calculations of future worth, that were straight from the standard statistical information for real estate in the Denver area, which information all appraisers use and rely on in their work. 11. Mr. Bowes' model is to compare two scenarios, one which happened and one which did not, because of the contamination. 12. Colorado law generally provides damages for breach of contract that place the parties in the same financial position they were in had the contract not been breached. Southern Colorado MRI, Ltd. v. Med-Alliance, Inc., 166 F. 3d 1094, 1101 (10th Cir. 1999), citing Colorado National Bank v. Friedman and other cases. 13. In determining such damages, the court must apply the familiar principle of

forseeability. The damages must have been reasonably within the contemplation of the parties at the time of their contract, and the natural and proximate consequences of the breach. Southern Colorado MRI at 1101. 14. Plaintiffs do not have to "fit" into the damages box that ITW seeks to place them in. Plaintiffs are entitled to put on their evidence of damages. The proper method to challenge Plaintiffs' proof is to make a Rule 50(a) motion at the conclusion of the evidence. See Echo Acceptance Corporation v. Household Retail Services, Inc., 276 F. 3d 1068 (10th Cir. 2001).

WHEREFORE, Petitioner requests the court to deny ITW's motion in limine to exclude testimony of Peter Bowes' lost profits model.

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Respectfully submitted December 10, 2005. s/Peter Rogers Peter Rogers 885 Arapahoe Avenue Boulder, CO 80302 Telephone: 303-544-0997 Fax: 303-544-0998 [email protected] Attorney for Frieda E. Enssle, Burke E. Enssle, and Heidi E. Wilson

CERTIFICATE OF SERVICE I hereby certify that on December 10, 2005, a true and correct copy of the foregoing PLAINTIFFS' RESPONSE TO DEFENDANT ILLINOIS TOOL WORKS, INC.'S MOTION IN LIMINE TO EXCLUDE TESTIMONY ON PETER BOWES' LOST PROFITS MODEL (PACER 334) was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Susan E. Brice [email protected], [email protected] [email protected], [email protected] [email protected] [email protected], [email protected]

Angela Deborah DeVine Geraldine Elizabeth Flynn Asimakis Pascal Iatridis Robin R. Lunn

[email protected] [email protected], [email protected]

Kim Arquette Tomey

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And I hereby certify that I have mailed or served the document or paper by United States mail, first class, postage prepaid, addressed as follows: Asimakis P. Iatridis Berg, Hill, Greenleaf & Ruscitti LLP 1712 Pearl Street Boulder, CO 80302 Attorneys for Plaintiffs Burke E. Enssle 444 Millionaire Drive Boulder, CO 80302

s/ Peter Rogers Peter Rogers Attorney for Plaintiffs

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