Free Objections - District Court of Colorado - Colorado

Case 1:04-cv-01186-MSK-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1186-MSK-BNB JAMES A. PORTER, Plaintiff, v. THE CITY OF MONTROSE, COLORADO, Defendants. ______________________________________________________________________________ CITY OF MONTROSE'S OBJECTIONS TO PLAINTIFF'S REVISED EXHIBIT LIST ______________________________________________________________________________ Defendant, CITY OF MONTROSE, by its attorneys, THOMAS S. RICE and WENDY J. SHEA, of the law firm SENTER GOLDFARB & RICE, L.L.C., hereby provides the following objections to Plaintiff's exhibits to be used at trial [Dkt. #38]:
EXHIBIT NO.

DESCRIPTION Plat for the Mallett Commercial Development Sketch Plan One from Mesa Engineering

OBJECTIONS Authenticity; relevance; no probative value, incomplete; Rule 106.

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2

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 2 is described as: "Plaintiff's Exhibit 1 for the Plaintiff's Exhibit 1 for the hearing with the City of Montrose ­ Warranty Deed between J. Roger Trosper aka John Roger Trosper and James A. Porter for Lot 2, Mallet Minor Subdivision dated October 6, 1998"

Authenticity; cumulative evidence. Plaintiff previously disclosed a warranty deed, but did not exchange this Exhibit and therefore, the City reserves the right to object and/or withdraw its objections in the future if Plaintiff provides a copy of Exhibit 2.

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EXHIBIT NO.

DESCRIPTION No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 2 is described as: "Plaintiff's Exhibit 2 for the City of Montrose ­ State Highway Access Permit signed by James A. Porter on May 10, 1999, and signed by a representative of CDOT on June 3, 1999 with attached documentation."

OBJECTIONS Relevance; hearsay; no probative value; cumulative evidence. Plaintiff previously disclosed an "exhibit 2 which was attached to a letter submitted to the City of Montrose; however, it cannot be determined what the "attached documentation" is to which Plaintiff refers. As a result, the City reserves the right to supplement and/or withdraw its objections to Exhibit 3 in the event that Plaintiff provides a copy of the specific exhibit he intends to use. Relevance; no probative value; hearsay; incomplete; confusion of issues; authenticity; cumulative evidence; lack of foundation. Plaintiff previously disclosed an "exhibit 4 which was attached to a letter submitted to the City of Montrose; however, from this prior disclosure, it cannot be determined what specific documents may have been attached to the Exhibit; As a result, the City reserves the right to supplement its objections to Exhibit 4 in the event that Plaintiff provides a copy of the specific exhibit he intends to use.

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4

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 4 is described as: "Plaintiff's Exhibit 4 for the hearing with the City of Montrose ­ State Highway access permit application signed by James A. Porter on March 21, 2002, with correspondence from the State of Colorado to James Porter dated April 1, 2002, with access timeline, report dated Monday, April 1, 2002, regarding posted speed limit and peak hour volume, list of access within one mile of subject, photograph looking right or west, photograph looking left or east, photograph looking into proposed access, correspondence from the State of Colorado to James Porter dated April 11, 2002, Colorado Department of Transportation State Highway Access Field Worksheet, and correspondence from the State of Colorado to James Porter dated June 3, 2000"

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EXHIBIT NO.

DESCRIPTION No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 5 is described as: "Plaintiff's Exhibit 5 for the hearing with the City of Montrose ­ State Highway Access Permit Application for application by the City of Montrose for property owned by the City of Montrose and signed by the City Engineer G. Peter Borner on March 3, 2002." No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 6 is described as: "Plaintiff's Exhibit 6 for the hearing with the City of Montrose ­ Correspondence from the Office of the City Manager of Montrose to Mr. Owen Leonard, Region Director for the Colorado Department of Transportation dated April 10, 2002." No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 7 is described as: "Plaintiff's Exhibit 7 for the hearing with the City of Montrose ­ Correspondence from the State of Colorado to Mr. John Schneiger, Montrose City Manager, dated April 24, 2002." No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 8 is described as: "Plaintiff's Exhibit 8 for the hearing with the City of Montrose ­ State Highway Access Permit signed by Permittee Peter Borner, City Engineer, on June 9, 2002 and signed by a representative of the Colorado Department of Transportation on June 13, 2002, with attached documents."

OBJECTIONS Relevance; no probative value; confusion of issues; cumulative evidence; Rule 403. The City reserves the right to supplement its objections to Exhibit 5 in the event that Plaintiff provides a copy of this exhibit in the future.

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6

Hearsay; relevance; no probative value; cumulative evidence; improper impeachment under Rule 608. The City reserves the right to supplement its objections to Exhibit 6 in the event that Plaintiff provides a copy of this exhibit in the future. Hearsay; relevance; no probative value; cumulative evidence; lack of foundation; confusion of issues; Rule 106. The City reserves the right to supplement its objections to Exhibit 7 in the event that Plaintiff provides a copy of the exhibit he intends to offer at trial. Relevance; no probative value; Rule 403; cumulative evidence; confusion of issues; Rule 106. The City reserves the right to supplement its objections to Exhibit 8 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial.

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EXHIBIT NO.

DESCRIPTION No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 9 is described as: "Plaintiff's Exhibit 9 for the hearing with the City of Montrose ­ Correspondence from the City Engineer, G. Peter Borner to James Porter dated June 10, 2002 with attached correspondence from G. Peter Borner dated June 14, 2002 and an appeals process document."

OBJECTIONS Hearsay; cumulative evidence; confusion of issues; Rule 403. Plaintiff previously disclosed an "exhibit 9" which was attached to a letter submitted to the City of Montrose; however, it cannot be determined what the "attached documentation" is to which Plaintiff refers. As a result, the City reserves the right to supplement its objections to Exhibit 9 in the event that Plaintiff provides a copy of the specific exhibit he intends to offer at trial. Hearsay; cumulative evidence; confusion of issues; Rule 403; relevance; no probative value. The City reserves the right to supplement its objections to Exhibit 10 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Hearsay; relevance; no probative value; Rule 403; parts of this exhibit may not have been previously disclosed; incomplete; cumulative evidence; confusion of issues. The City reserves the right to supplement its objections to Exhibit 11 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial.

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10

11

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 10 is described as: "Plaintiff's Exhibit 10 for the hearing with the City of Montrose ­ correspondence from Aaron Clay to the City of Montrose dated August 8, 2002 with attached Exhibit "A" (correspondence from the City Engineer to James Porter dated June 10, 2002)." No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 11 is described as: "Plaintiff's Exhibit 11 for the hearing with the City of Montrose ­ Correspondence from G. Peter Borner, City Engineer, to James Porter dated November 22, 2002, with attached State Access Permit signed by G. Peter Borner on November 22, 2002, Terms and Conditions of State Highway Access Permit #302125 issued to James A. Porter and dated November 22, 2002, Terms and Conditions of State Highway Access Permit #301086 dated July 16, 2001 issued to Bob & Susan Duzik, and page two of the State Highway Access Permit Form 101." 4

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EXHIBIT NO.

DESCRIPTION No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 12 is described as: "Plaintiff's Exhibit 12 for the hearing with the City of Montrose ­ Correspondence from Aaron Clay to the City of Montrose dated December 26, 2002."

OBJECTIONS Hearsay; cumulative evidence; relevance; no probative value; Rule 403; confusion of issues; incomplete; Rule 106. The City reserves the right to supplement its objections to Exhibit 12 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Relevance; no probative value; hearsay; cumulative evidence; lack of foundation; improper impeachment under Rule 608. The City reserves the right to supplement its objections to Exhibit 13 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Hearsay; relevance; no probative value. The City reserves the right to supplement its objections to Exhibit 14 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Hearsay; relevance; no probative value. The City reserves the right to supplement its objections to Exhibit 15 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial.

12

13

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 13 is described as: "Plaintiff's Exhibit 13 for the hearing with the City of Montrose ­ Correspondence from the City Attorney Greg Clifton for the City of Montrose to Aaron Clay dated January 28, 2002."

14

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 14 is described as: "Correspondence from the State of Colorado to Aaron Clay dated April 9, 2002."

15

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 15 is described as: "Correspondence from the State of Colorado to Aaron Clay dated April 17, 2003."

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EXHIBIT NO.

DESCRIPTION No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 16 is described as: "Colorado Department of Transportation Facsimile Transmittal from Mike Smith to Aaron Clay consisting of 35 pages."

OBJECTIONS Hearsay; relevance; no probative value; cumulative evidence; confusion of issues; lack of foundation. The City reserves the right to supplement its objections to Exhibit 16 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Hearsay; relevance; no probative value; cumulative evidence; confusion of issues; Rule 403. The City reserves the right to supplement its objections to Exhibit 17 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Relevance; no probative value; confusion of issues; lack of foundation. The City reserves the right to supplement its objections to Exhibit 18 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Relevance; no probative value; cumulative evidence. The City reserves the right to supplement its objections to Exhibit 19 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial.

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17

18

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 17 is described as: "Colorado Department State Highway Access Permit signed by James A. Porter on May 10, 1999 and signed by a representative of the Colorado Department of Transportation dated June 3, 1999, with attached documentation (consists of 7 pages total)." No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 18 is described as: "Various portions of the State Highway Access Code dated August 31, 1998."

19

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 19 is described as: "Facsimile Transmission from Greg Clifton, City Attorney, City of Montrose to Aaron Clay dated February 24, 2003."

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EXHIBIT NO.

DESCRIPTION No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 20 is described as: "Correspondence to Greg Clifton, City of Montrose, from Aaron Clay dated January 2, 2003."

OBJECTIONS Hearsay; relevance; no probative value; cumulative evidence; incomplete; Rule 106. The City reserves the right to supplement its objections to Exhibit 20 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Hearsay; relevance; no probative value; cumulative evidence; improper impeachment under Rule 608. The City reserves the right to supplement its objections to Exhibit 21 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Hearsay; relevance; no probative value; cumulative evidence; Rule 403; lack of personal knowledge; improper impeachment under Rule 608. The City reserves the right to supplement its objections to Exhibit 22 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Hearsay; relevance; no probative value; cumulative evidence; legal conclusion; lack of personal knowledge; lack of foundation. The City reserves the right to supplement its objections to Exhibit 23 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial.

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21

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 21 is described as: "Correspondence dated June 10, 2002, from G. Peter Borner to James Porter."

22

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 22 is described as: "Correspondence dated October 2, 2002, from Greg Clifton, City Attorney City of Montrose, to Aaron Clay."

23

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 23 is described as: "Correspondence dated August 19, 2002, from Dan Roussin, Region 3 Unit Permit Manager, State of Colorado, Department of Transportation, to Aaron Clay."

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EXHIBIT NO.

DESCRIPTION No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 24 is described as: "Correspondence dated August 8, 2002, to the Colorado Department of Transportation from Aaron Clay."

OBJECTIONS Hearsay; relevance; no probative value; cumulative evidence; Rule 403; lack of foundation. The City reserves the right to supplement its objections to Exhibit 24 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Relevance; no probative value; authenticity. The City reserves the right to supplement its objections to Exhibit 25 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Hearsay; relevance; no probative value; cumulative evidence; failure to disclose, incomplete; lack of foundation; opinion testimony not in compliance with Rule 702. Plaintiff previously disclosed a timely letter dated January 8, 2002, but no attachments were produced with the letter. As a result, the City reserves the right to supplement its objections to Exhibit 26 in the event that Plaintiff provides a copy of the specific exhibit he intends to offer at trial. Relevance; no probative value; incomplete; cumulative evidence; lack of foundation; incomplete. The City reserves the right to supplement its objections to Exhibit 27 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial.

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25

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 25 is described as: "Aerial photograph of property and surrounding area."

26

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 26 is described as: "Del-Mont Consultants, Inc. correspondence to David Kienholz and Jim Porter dated January 8, 2002."

27

No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 27 is described as: "Memorandum to Montrose County Planning Commission from Montrose City Planning dated May 17, 1996, regarding Miles/Trosper Rezoning."

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EXHIBIT NO.

DESCRIPTION No Exhibit Exchanged. In Plaintiff's revised exhibit list, Exhibit 28 is described as: "Plat of M and M Minor Subdivision, Map of Proposed Highway 90 Access Permit and Map of Proposed Rezoning." Photographs of Plaintiff's property stored on a compact disc (previously provided and will be duplicated again for Defendant upon request).

OBJECTIONS Relevance; no probative value; authenticity; Rule 403. The City reserves the right to supplement its objections to Exhibit 28 in the event that Plaintiff provides a copy of the exhibit that he intends to offer at trial. Authenticity; relevance; no probative value; cumulative evidence.

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Respectfully submitted, SENTER GOLDFARB & RICE, L.L.C.

By: s/Wendy J. Shea Wendy J. Shea Attorneys for Defendant City of Montrose 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0210 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 22nd day of July, 2005, I electronically filed a true and correct copy of the above and foregoing CITY OF MONTROSE'S OBJECTIONS TO PLAINTIFF'S REVISED EXHIBIT LIST with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: [email protected] _s/ Marie S. DeSanto______________ Marie S. DeSanto e-mail: [email protected] Secretary for Attorney Wendy Shea

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