Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:01-cv-01807-MSK-MJW

Document 438

Filed 07/07/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 01-cv-01807-MSK-MJW BANK ONE, COLORADO, N.A. and, BANK ONE TRUST COMPANY, N.A., As Trustee of the Frank G. Jamison Marital Trust and the Frank G. Jamison Family Trust, Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners; and, JOHNNY ON THE SPOT, INC. Defendants.

BOULDER CLEANERS, INC. and, JOHN'S CLEANER'S, INC., Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant. ______________________________________________________________________________ CVY'S AND JOHNNY ON THE SPOT'S MOTION FOR RECONSIDERATION OF THE COURT'S ORDER GRANTING THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIMS ASSERTED BY DEFENDANT C.V.Y. CORPORATION, ORDER #381 ______________________________________________________________________________ COME NOW C.V.Y. Corporation, d/b/a Your Valet Cleaners, and Johnny on the Spot, Inc. ("Defendants") by and through their counsel, Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P., and submit their Motion for Reconsideration of the Court's Order Granting the Plaintiffs' Motion for Summary Judgment on Counterclaims asserted by Defendant C.V.Y. Corporation, Order #381, as follows:

Case 1:01-cv-01807-MSK-MJW

Document 438

Filed 07/07/2006

Page 2 of 4

1.

Pursuant to D.C.COLO.LCivR 7.1(A), counsel for CVY and JOS have conferred

with counsel for Plaintiffs and are advised that they object to the relief requested herein. CrossPlaintiffs, Boulder Cleaners, Inc.'s and John's Cleaner's, Inc.'s, claims have been severed from this action and their claims will be tried separately at the conclusion of this matter. As such, counsel for Cross-Plaintiffs has not been consulted regarding this relief. 2. The Court's March 31, 2004, Order Granting the Plaintiffs' Motion for Summary

Judgment on Counterclaims asserted by Defendant C.V.Y. Corporation, Order #381, addresses Defendants previously asserted counterclaims for contractual indemnification and negligent misrepresentation. Defendants ask the Court to reconsider its Order which dismissed its

contractual indemnification counterclaim for the same reasons and law posited in Defendants Motion for Leave to Assert Counterclaim for CERCLA 42 U.S.C. 9613 Contribution Against Plaintiffs. 3. In granting Plaintiffs' Motion for Summary Judgment in regards to Defendants

contractual indemnification claim, this Honorable Court opined as follows: In several Orders, this Court concluded that CVY can only be liable for its own actions, not the actions of others. Thus, even if the Court assumes that the agreement entitles CVY to indemnification for the actions of others, this aspect of the agreement will not come into play. CVY also cannot seek indemnification for its own actions, because the agreement contains no clear and unequivocal language stating that CVY is entitled to indemnification for liabilities caused by its own actions. See Williams v. White Mountain Const. Co., Inc., 749 P.2d 423, 426 (Colo. 1988). Therefore, there is no potential liability for which CVY can seek indemnification from the Plaintiffs. (See #381, p. 3, ¶ 3.)

2

Case 1:01-cv-01807-MSK-MJW

Document 438

Filed 07/07/2006

Page 3 of 4

4.

For the same reasons set forth in Defendants' Motion to Assert Counterclaim for

CERCLA 42 U.S.C § 9613 Against Plaintiffs, Defendants request that the Court reconsider and vacate its previous March 31, 2004 order (#381) granting summary judgment in favor of Plaintiffs on Defendants counterclaim for contractual indemnification, and that such counterclaim be reinstated. WHEREFORE, Defendants C.V.Y. Corporation, d/b/a Your Valet Cleaners, and Johnny on the Spot, Inc. request that this Honorable Court reconsider Order # 381 and reinstate Defendants' contractual indemnity counterclaim. DATED: July 7, 2006 Respectfully submitted, MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P.

By:_________________________________ C. Michael Montgomery Max K. Jones, Jr. 475 Seventeenth Street, 16th Floor Denver, Colorado 80202 (303) 592-6600
ATTORNEYS FOR THE DEFENDANTS C.V.Y. CORPORATION, d/b/a YOUR VALET CLEANERS, and JOHNNY ON THE SPOT, INC.

3

Case 1:01-cv-01807-MSK-MJW

Document 438

Filed 07/07/2006

Page 4 of 4

CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the CVY'S AND JOHNNY ON THE SPOT'S MOTION FOR RECONSIDERATION OF THE COURT'S ORDER GRANTING THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIMS ASSERTED BY DEFENDANT C.V.Y. CORPORATION, ORDER #381, was placed in the US Mail, first class postage prepaid, on July 7, 2006, addressed to the following:

Scott Jurdem, Esq. Buchanan Jurdem & Cederburg, P.C. 1621 18th Street, Suite 260 Denver, Colorado 80202 [email protected]

Laura J. Riese, Esq. Davis Graham & Stubbs LLP 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 [email protected]

s/ Karen Wood Karen Wood Montgomery, Kolodny, Amatuzio & 475 Seventeenth Street, 16th Floor Denver, Colorado 80202 Telephone: (303) 592-6600 Fax: (303) 592-6666 [email protected]

4