Free Proposed Pretrial Order - District Court of Colorado - Colorado

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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. ______________________________________________________________________________ FINAL PRETRIAL ORDER ______________________________________________________________________________ 1. DATE AND APPEARANCES The parties appeared before United States Magistrate Judge Boyd Boland for a Final Pretrial Conference on June 27, 2005. DONALD L. MCBEE, of HARSHMAN & MCBEE, 1021 Main Street, Grand Junction, Colorado 81502; telephone: 970-243-7887 appeared on behalf of the Plaintiff. WENDY J. SHEA of SENTER GOLDFARB & RICE, L.L.C., 1700 Broadway, Suite 1700, Denver, Colorado 80290; telephone: 303-320-0509 appeared on behalf of Defendant. 2. JURISDICTION Jurisdiction of the Court is based on 28 U.S.C. § 1331. However, Defendant notes it has a pending motion for summary judgment which challenges the subject matter jurisdiction of the Court over Plaintiff's takings claims under the Constitutions of the United States and the State of

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Colorado due to Plaintiff's failure to obtain a final decision from the City regarding his application for access. 3. CLAIMS AND DEFENSES a. Plaintiff's Claims: Plaintiff claims that Defendant, in violation of the Colorado

Regulations governing the issuance of state highway access permits, wrongfully denied him a highway access permit for ingress and egress from his commercial property to State Highway 90 in Montrose, Colorado. Plaintiff further claims that Defendant wrongfully granted itself a permit which greatly enhanced the value of another person's property, to the detriment of Plaintiff. Plaintiff claims damages for the diminished value of his property and the income form the property and that Defendant's actions constitute an illegal taking of a property right in violation of the 5th Amendment to the Constitution of the United States and Sections 14 and 25 of the Constitution of Colorado. Plaintiff claims damages of at least $6,000,000.00. b. Defendant's Defenses: This case arises from the denial of Plaintiff's application

for a permit to obtain full access from his property to Highway 90 in Montrose, Colorado. Specifically, on October 6, 1998, Plaintiff purchased the property at issue in this case and eight months after his purchase, Plaintiff applied for and obtained a highway access permit from the Colorado Department of Transportation ("CDOT"). The permit allowed Plaintiff to begin

construction to obtain access from his property to Highway 90. However, Plaintiff made no efforts to begin construction and instead, sought two extensions of the permit from CDOT. In the interim, developers of the Ponderosa Ranch subdivision, which included property adjacent to Plaintiff's property on the east, met with officials from the City and CDOT to discuss street access for the proposed subdivision, including the possibility of obtaining access from

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Highway 90. The access the subdivision was requesting was at a location several hundred feet east of the highway access granted to Plaintiff by the permit issued by CDOT. On March 19, 2002, the developers requested that the City file an application for local street access to the highway, pursuant to the Colorado State Highway Access Code, which provides that access to a state highway shall be administered by CDOT with the local authority considered as the applicant. STATE
OF

COLORADO STATE HIGHWAY ACCESS CODE, Vol. II, Code of Colorado

Regulations 601-1, Section 2.3(12). On March 21, 2002, knowing that the second extension of his access permit from CDOT would expire in June, Plaintiff submitted another application to CDOT seeking full access to Highway 90 from his property. On April 3, 2002, the City, pursuant to the request of the Ponderosa Developers, submitted an application to CDOT for access to Highway 90 from a street by the name of Bristlecone Drive. Seven days later, pursuant to C.R.S. § 43-2-147, the City requested that CDOT grant it the authority to issue highway access permits within City limits. At the time, CDOT had taken no action on either pending permit. On April 24, 2004, CDOT granted the City issuing authority. On June 9, 2002, after a hearing was held on the Ponderosa Subdivision preliminary plat, the City approved the permit for access from Bristlecone Drive and submitted the permit to CDOT final approval and issuance. On June 10, 2002, the City denied Plaintiff's application for access. Plaintiff appealed the City's denial of his application on August 8, 2002. On November 22, 2002, the City reconsidered the denial of Plaintiff's application and approved a permit for access from Plaintiff's property to Highway 90 with a right-in, right-out restriction. The City forwarded the permit to CDOT for its approval on November 26, 2002, and

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the conditional permit was approved by CDOT and presented to Plaintiff on December 3, 2002 for acceptance. Plaintiff chose not to act on the permit. On January 2, 2003, Plaintiff filed a second notice of appeal with the City regarding its decision to issue him a conditional access permit. On January 28, 2002, the City sent a letter to CDOT returning issuing authority to CDOT and on the same date, the City advised Plaintiff in writing that it had elected to transfer the status of issuing authority back to CDOT. As a result, Plaintiff was provided two options concerning his pending appeal: (1) either the City or CDOT could serve as a review board regarding the pending appeal; or (2) Plaintiff could submit an application for access directly to CDOT. Plaintiff chose to his appeal with the City. On April 10, 2003, at a regularly scheduled city council meeting, a hearing was held on Plaintiff's appeal. After testimony was provided from Plaintiff and the City, a break in the proceedings occurred to allow the City attorney and Plaintiff's counsel to discuss whether a compromise could be reached. At the conclusion of the break, Plaintiff, through his counsel, agreed to stay the hearing for the purpose of allowing him an opportunity to submit an application for access to CDOT. In exchange, the City agreed to recommend that CDOT approve Plaintiff's application for access. It was further agreed that Plaintiff could reopen the hearing before the City Council, if he was unable to obtain a permit for full access from CDOT. After the hearing, Plaintiff chose not to submit an application for access to CDOT and the appeal hearing before the City was not reconvened. Rather, Plaintiff sold the property on October 14, 2003 for $375,520.00. Defendant denies the substantive allegations of Plaintiff's Complaint. Specifically, the City denies that its actions violated Plaintiff's Fifth Amendment rights and further contends that

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Plaintiff's failure to obtain a final decision from the City regarding his application for access precludes consideration of his takings claims under the United States and Colorado Constitutions. Defendant also denies that its conduct resulted in a compensable taking of

Plaintiff's property because Plaintiff did not possess a legal right of access to the highway and the alleged diminution in property value Plaintiff claims is not a compensable loss under Article II, Section 15 of the Colorado Constitution. The City additionally denies that Plaintiff was entitled to due process protections based upon the application for access he submitted and, even if he was, Plaintiff received all process he was entitled to receive. As for affirmative defenses, Defendant contends that: a. Plaintiff's Complaint fails, at least in part, to state a claim upon which relief can

be granted against the City; b. c. d. parties. 4. STIPULATIONS The parties stipulate as follows: a. b. Plaintiff is a natural person and a resident of the State of Colorado. The City of Montrose is a municipal corporation, incorporated under laws of the Plaintiff has failed to exhaust his administrative remedies; Plaintiff has failed to reasonably mitigate his alleged damages, if any; and Plaintiff lacks standing and/or there is no justicable controversy between these

State of Colorado. c. On April 10, 2002, pursuant to C.R.S. § 43-2-147, the City requested that CDOT

grant it the authority to issue highway access permits within City limits.

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d.

On April 24, 2002, CDOT granted the City issuing authority. 5. PENDING MOTIONS

Defendant's Motion for Summary Adjudication (Dkt. No. 28) and Memorandum Brief in Support Thereof (Dkt. No. 29) were filed on May 2, 2005, Plaintiff's Response (Dkt. No. 31) and Brief in Support Thereof (Dkt. No. 32) were filed on May 18, 2005 and Defendant's Reply Brief in Support of its Motion was filed on June 2, 2005 (Dkt. No. 33). 6. WITNESSES a. Plaintiff's nonexpert witnesses: (1) witnesses who will be present at trial: (i) Plaintiff James Porter. Mr. Porter will testify as to the facts of the case and as to his damages. (2) witnesses who may be present at trial if the need arises: (i) G. Peter Borner (previously disclosed). Mr. Borner was the City Engineer who was in charge of access permit administration, and who denied Plaintiff's access permit. Mr. Borner is expected to testify regarding the policies and decision process in granting or denying access permits. (ii) Michael Smith (previously disclosed). Mr. Smith is expected to testify about the process and the standards required by CDOT in the granting or denying of access permits and his contacts with Defendant about its access permit administration. (iii) Dan Roussin (previously disclosed). Mr. Roussin is expected to testify on the same issues as Mr. Smith.

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(iv) John Schneiger (previously disclosed). Mr. Schneiger was the City Manager for Defendant during the events at issue in this case, and is expected to testify about the procedures and policies of Defendant with regard to street location and the administration of highway access permit applications. Mr. Schneiger has been deposed and his deposition may be used in lieu of his live testimony. (v) Any witness endorsed by the Defendant. (vi) Any witness necessary for rebuttal or impeachment. (3) witnesses where testimony is expected to be presented by means of a deposition (i) None. b. Defendant's nonexpert witnesses: (1) Witnesses who will be present at trial: (i) Garry Baker (previously disclosed). The nature and purpose of

Mr. Baker's testimony is to provide information relating to the City's policies and procedures concerning the issuance of highway access permits during the time it obtained local issuing authority from CDOT, Plaintiff's application for a highway access permit and the City's decisions regarding the same; the application for Highway access from Bristlecone Drive; consideration and approval of the Ponderosa Ranch plan by the City, and Mr. Porter's appeals of the City's decisions. Mr. Baker will testify in person. (2) Witnesses who may be present at trial if the need arises: (i) Greg Clifton (previously disclosed). The nature and purpose of

Mr. Clifton's testimony will be to provide information relating to the City's policies and procedures concerning the issuance of highway access permits during the time it obtained local

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issuing authority from CDOT, Plaintiff's application for a highway access permit and the City's decisions regarding the same; the application for highway access from Bristlecone Drive; consideration and approval of the Ponderosa Ranch plan by the City, and Mr. Porter's appeals of the City's decisions, including the appeal hearing held on Mr. Porter's second notice of appeal, conversations Mr. Clifton had with Plaintiff's counsel and the reasons why the City's decision regarding the appeal was stayed. Mr. Clifton is expected to testify in person. (ii) Stephyn Ryan (previously disclosed). The nature and purpose of

Mr. Ryan's testimony will address City's policies and procedures, including the City's processing of highway access permit applications after the City was granted issuing authority from CDOT, the City's decisions regarding Plaintiff's application for a state highway access permit, Mr. Porter's appeals regarding the same, the application for highway access from Bristlecone Drive and consideration and approval of the Ponderosa Ranch plan by the City. Mr. Ryan is expected to testify in person. (iii) G. Peter Borner (previously disclosed). The nature and purpose

of Mr. Borner's testimony will address the City's policies and procedures, including the state highway access permit process during the time that the City had local issuing authority, the City's decisions regarding applications for highway access, including Plaintiff's application for full use state highway access permit, consideration of the Ponderosa Ranch Plan by the City, Plaintiff's appeals of the City's decisions, including the appeal hearing on Mr. Porter's second notice of appeal, the City's consideration and approval of the Ponderosa Ranch plan by the City and the application for highway access from Bristlecone Drive. Mr. Borner is expected to testify in person.

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(iv)

Carlos Guara, (previously disclosed). The nature and purpose of

Mr. Guara's testimony will address the City's policies and procedures and the appeal hearing for Mr. Porter's second notice of appeal. Mr. Guara is expected to testify in person. (v) Kerwin Jensen (previously disclosed). The nature and purpose of

Mr. Jensen's testimony will address the City's policies and procedures, consideration of the Ponderosa Ranch plan by the City, the application for access from Bristlecone Drive and Plaintiff's application for access. Mr. Jensen is expected to testify in person. (vi) Owen B. Leonard (previously disclosed). The nature and purpose

of Mr. Leonard's testimony will address Plaintiff's applications for a state highway access permits and extensions sought with respect to the same, CDOT's role in issuing state highway access permits, the City of Montrose's rule issuing state highway access permits, and the applicable rules and regulations regarding the same, including the state highway access code in effect at the time relevant to the allegations in Plaintiff's complaint. Mr. Leonard is expected to testify in person. (vii) 81401; 970-249-7970. Matt Miles, 1282 West Oak Grove Road, Montrose, Colorado The nature and purpose of Mr. Miles' testimony will address the

development of the Ponderosa subdivision, the discussions Mr. Miles had with the City concerning state highway access from Ponderosa subdivision, the application submitted by the City for highway access to the Ponderosa subdivision, and his understanding of the processes regarding the same. Mr. Miles is expected to testify in person. (viii) Dan Roussin (previously disclosed). The nature and purpose of

Mr. Roussin's testimony will address Plaintiff's applications for state highway access permits

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and extensions sought regarding the same, CDOT's role regarding the issuance of state highway access permits, the City of Montrose's role in issuing state highway access permits, and the applicable rules and regulations regarding the same, including the state highway access code in effect at the time relevant to the allegations in Plaintiff's complaint. It is anticipated that Mr. Roussin will testify at the trial in person. (ix) John Schneiger (previously disclosed). The nature and purpose of

Mr. Schneiger's testimony will address the City's policies and procedures, the state highway access permit process, the application for access from Bristlecone Drive, Plaintiff's application for a state highway access permit, consideration of the Ponderosa Ranch plan by the City, the denial of Porter's application for a state highway access permit, Mr. Porter's appeal of the City's decisions concerning his state highway access permit applications and the appeal hearing. Mr. Schneiger is expected to testify at the trial in person. (x) Mike Smith (previously disclosed). The nature and purpose of

Mr. Smith's testimony will address CDOT's role in issuing state highway access permits, the City of Montrose's role in issuing state highway access permits, the applicable rules and regulations regarding the same, the application for access from Bristlecone Drive, the applications that Plaintiff submitted for access and extensions sought with respect to the same and the appeal hearing before the City in April of 2003 during which Mr. Smith provided testimony. Mr. Smith is expected to testify at the trial in person. (xi) (xii) Any witness endorsed by Plaintiff. Any witness necessary for rebuttal or impeachment.

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(3)

Witnesses where testimony is expected to be presented by means of a deposition.

At this time, Defendant is not aware of any testimony that is expected to be presented by means of a deposition. However, due to the fact that State officials may be required to testify, in the event of a conflict or unavailability, Defendant will seek leave from the Court to depose such individuals, if necessary, to preserve their testimony for trial. c. Plaintiff's expert witnesses. (1) Witnesses who will be present at trial. (i) David Kienholz (previously disclosed). Mr. Kienholz is an expert in the development and values of commercial real estate in the Montrose Colorado area and is expected to testify concerning the effect on value of the highway access to commercial property, and specifically, on the effect of the value of Plaintiff's property from the loss of highway access. Mr. Kienholz has been deposed and his deposition may be used at trial. (2) Witnesses who may be present at trial. None. (3) Witnesses where testimony is expected to be presented by means of a deposition. None. d. Defendant's experts. (1) Witnesses who will be present at trial: (i) None.

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(2)

Witnesses who may be present at trial: (i) Claudia Crane Nero (previously disclosed). The nature and

purpose of Ms. Nero's testimony will be to discuss value of Plaintiff's property including the appraisal she performed of Plaintiff's property. necessary. (3) Witnesses where testimony is expected to be presented by means of a deposition: (i) None. 6. EXHIBITS (1) Plaintiff's Exhibit List EXHIBIT NO. 1 2 BRIEF DESCRIPTION STIPULATED Ms. Nero will testify at trial in person, if

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4

Plat for the Mallett Commercial Development Sketch Plan One from Mesa Engineering 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 Plaintiff's Exhibit 2 for the hearing with 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 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 01, 2002, regarding posted speed limit and Peak Hour Volume, List of Access within 1 mile(s) of subject, photograph looking Right or West, photograph looking Left or East, 12

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EXHIBIT NO.

BRIEF DESCRIPTION

STIPULATED

5

6

7

8

9

10

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 A. Porter dated June 3, 2000. 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. 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. 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. 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. 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. 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). 13

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EXHIBIT NO. 11

BRIEF DESCRIPTION

STIPULATED

12

13

14 15

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 Highway 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. 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. 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. Correspondence from the State of Colorado to Aaron Clay dated April 9, 2003. Correspondence from the State of Colorado to Aaron Clay dated April 17, 2003. Colorado Department of Transportation Facsimile Transmittal from Mike Smith to Aaron Clay consisting of 35 pages. 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). Various portions of the State Highway Access Code dated August 31, 1998 Facsimile Transmission from Greg Clifton, City Attorney, City of Montrose to Aaron Clay dated February 24, 2003.

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18 19

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EXHIBIT NO. 20

BRIEF DESCRIPTION

STIPULATED

21 22

Correspondence to Greg Clifton, City of Montrose, from Aaron Clay dated January 2, 2003. Correspondence dated June 10, 2002, from G. Peter Borner to James Porter. Correspondence dated October 2, 2002, from Greg Clifton, City Attorney City of Montrose, to Aaron Clay. Correspondence dated August 19, 2002, from Dan Roussin, Region 3 Unit Permit Manager, State of Colorado, Department of Transportation, to Aaron Clay. Correspondence dated August 8, 2002, to the Colorado Department of Transportation from Aaron Clay. Aerial photograph of property and surrounding area. Del-Mont Consultants, Inc. correspondence to David Kienholz and Jim Porter dated January 8, 2002. Memorandum to Montrose County Planning Commission from Montrose City Planning dated May 17, 1996, regarding Miles/Trosper Rezoning. 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 Any exhibit endorsed by Defendant.

23

24

25 26

27

28

29

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(2) Defendant's Exhibit List EXHIBIT NO. A-1 A-2 A-3 A-4 BRIEF DESCRIPTION STIPULATED

A-5

A-6

A-7 A-8 A-9

October 6, 1998 Warranty Deed between Roger Trosper and James Porter March 21, 2002 State Highway Access Permit Application submitted by Plaintiff to CDOT April 3, 2002 State Highway Access Permit Application submitted by the City to CDOT April 10, 2002 letter from John Schneiger to Owen Leonard requesting local issuing authority from CDOT April 24, 2002 letter from Owen Leonard of the State of Colorado Department of Transportation to John Schneiger of the City of Montrose May 16, 2002 letter from Garry Baker to James Porter regarding discussion of Ponderosa Ranch Subdivision sketch plan Map of Ponderosa Ranch Subdivision June 5, 2002 minutes from Planning Commission meeting on Ponderosa sketch plan June 9, 2002 State Highway Access Permit CDOT Permit No. 302053, including terms and conditions June 10, 2002 letter from G. Peter Borner to James Porter regarding Access Permit Application June 14, 2002 letter from G. Peter Borner to James Porter, including appeal information August 8, 2002 Notice of Appeal of Denial of Access Permit from James Porter to City of Montrose November 22, 2002 letter from G. Peter Borner to James Porter regarding Access Permit No. 302125 State Highway Access Permit No. 302125, dated November 22, 2002, including terms and conditions December 3, 2002 correspondence to James Porter from Sherry McGregor of CDOT

A-10 A-11 A-12

A-13 A-14

A-15

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EXHIBIT NO. A-16

BRIEF DESCRIPTION

STIPULATED

A-17 A-18

January 2, 2003 Notice of Appeal of Conditions of Access Permits from James Porter to City of Montrose Tape recording of April 10, 2003 hearing Summary of City's Position, with attached exhibits, In Re James Porter, Highway Access Permit No. 302125 April 10, 2003 City Council Actions Agenda Applicable excerpts from Colorado State Highway Access Code March 12, 1996 Public Notice of Hearing on Change of Zoning Request for property owned by Matt Miles and Roger Trosper October 14, 2003 Warranty Deed between James Porter and PAR Investments, Inc. Curriculum Vitae of Claudia Crane Nero Deposition Transcript of James Porter Transcript of April 10, 2003 hearing April 10, 2003 City Council Meeting Minutes Any exhibits used by Plaintiff Any exhibits necessary impeachment or rebuttal for purposes of

A-19 A-20 A-21

A-22 A-23 A-24 A-25 A-26

7. DISCOVERY Discovery has been completed. 8. SPECIAL ISSUES There are currently no special issues before the Court, other than the issues identified in Defendant's pending motion for summary judgment.

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9. SETTLEMENT a. Counsel for the parties submitted confidential settlement statements pursuant to

the Court's Order of September 3, 2004 (Dkt. No. 9). After reviewing the settlement statements, the Court vacated the settlement conference which was set for March 14, 2005, finding that settlement discussions would not be productive (Dkt. No. 23). b. c. d. e. There have been no formal settlement demands made in this matter. The parties will be promptly informed of all offers of settlement. Counsel for the parties do not intend to hold future settlement conferences. It appears from the discussion by all counsel that there is no possibility of

settlement in this case. f. There is no settlement conference before this magistrate judge or other alternative

dispute resolution method currently scheduled. g. LCivR 16.6. 10. OFFER OF JUDGMENT Counsel acknowledged familiarity with the provision of Rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel has discussed the possibility of making an offer of judgment with their clients against whom the claims are made in this case. Counsel for the parties has considered ADR in accordance with D.C. Colo.

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11. EFFECT OF FINAL PRE-TRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended, except by consent of the parties and approval by the Court or by Order of the Court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the scheduling order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 12. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS a. b. Trial is to a jury. A five-day jury trial has been scheduled on the docket of the Hon. Marsha S.

Kreiger to commence at 1:00 p.m. on February 6, 2001. This setting is on a trailing docket in third position. c. Trial will be held at the United States District Court for the District of Colorado,

in Denver, Colorado. d. A final trial preparation conference is set for January 12, 2006, at 8:00 a.m.

DATED this ___ day of ____________ 2005. BY THE COURT:

United State Magistrate Judge

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APPROVED: HARSHMAN & MCBEE SENTER GOLDFARB & RICE, L.L.C.

By: ________________________________ Donald L. McBee, Esq. Attorneys for Plaintiff James A. Porter 1021 Main Street Grand Junction, CO 81502 Telephone: (970) 243-7887 Facsimile: (970) 245-5566

By: ________________________________ Wendy J. Shea Attorneys for Defendant City of Montrose 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0210 D.C. Box 25

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