Free Motion for New Trial - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE DerKEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP Defendants. ______________________________________________________________________________ PLAINTIFF'S MOTION FOR NEW TRIAL OR TO ALTER OR AMEND JUDGMENT REGARDING SUMMARY JUDGMENT DISMISSING FIFTH CLAIM FOR RELIEF AGAINST ROSS DEFENDANTS ______________________________________________________________________________ Plaintiff, by and through her attorneys, Dietze and Davis, P.C., respectfully moves this Court, pursuant to F.R.C.P. 59, for a new trial or to alter or amend this Court's Order of January 26, 2006, dismissing Plaintiff's Fifth Claim for Relief against Defendants Sharryn E. Ross and Ross, Martel & Silverman, LLP. For the reasons set forth below, Plaintiff respectfully requests that this Court reinstate her claims against the Ross Defendants. 1. Pursuant to Local Rule 7.1, the undersigned has conferred with John E. Bolmer, II,

counsel for Defendants Sharryn E. Ross and Ross, Martel & Silverman, LLP. He has indicated that his clients object to this Motion and the relief requested herein.

2.

It is respectfully submitted that the Court has:

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a.

acted contrary to the standard of review, making a factual finding, based on its view of the weight of the disputed evidence, that Sharryn Ross did not assent to act as Plaintiff's attorney during the pre-filing stage of the process;

b.

misapplied Colorado law relating to the requirements for formation of an attorney-client relationship. As a result, it has improperly found that (1) Plaintiff not only had to assent to Ross acting on her behalf but had to know that Ross was taking such action in the capacity as attorney for Plaintiff, and (2) the attorney-client relationship could not have been formed by Plaintiff's designated agent, Lionbridge;

c. d.

mistakenly found that Plaintiff did not receive legal advice from Ross; and mistakenly held that an attorney-client relationship requires a showing that the client sought and/or received legal advice from the attorney on the legal consequences of the client's past or contemplated actions.

3.

In reaching its conclusion that as a matter of law, there was no attorney-client

relationship between Ross and Plaintiff, the Court's Order first addresses Ross's belief regarding the existence of the relationship. In her Brief in Opposition, Plaintiff pointed to Ross's sworn deposition testimony that she considered both Lionbridge and Plaintiff to be her clients in the process of amending the current Visa and attempting to obtain a green card. Ross later submitted a "Statement of Changes" and an affidavit, claiming that she understood the question and her answer to mean that had "the process" gone forward, she would be representing both Lionbridge and Plaintiff. But neither the question nor the answer were limited in this fashion.1 As such, her

1

Ross did not claim that the court reporter's transcript is inaccurate. 2

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deposition testimony is evidence that she believed that Plaintiff was her client during the process to amend the current Visa and to obtain a green card and that she assented to this attorney-client relationship. 4. In addition to Ross's sworn deposition testimony, Plaintiff pointed to circumstantial

evidence that Ross knew that her retention to move forward toward the filing for permanent residence, which included the necessary amendment of the Visa, was on behalf of both parties. The Court's Order states that it disagrees with what it has called "the inference" that Ross knew she was acting on behalf of both parties. 5. As stated in Plaintiff's Brief in Opposition, the Court must view the evidence and

draw reasonable inferences therefrom in a light most favorable to the non-moving party. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Ross's sworn deposition testimony is evidence that Ross herself believed that she was acting as Plaintiff's attorney. By itself, this

evidence creates a triable issue of fact on whether Ross assented to the creation of an attorney-client relationship. It is for the jury to decide whether to believe Ross's testimony or her later "clarification." Further, the other evidence cited in Plaintiff's Brief in Opposition would allow the fact finder to draw a reasonable inference that Ross assented to act as Plaintiff's counsel during the process leading to the filing of the application. If the Court was sitting as the trier of fact, it might elect not to draw this inference. But unless this and the other inferences are unreasonable as a matter of law, it is for the jury to accept or reject them. It is respectfully submitted that the Court has acted contrary to the standard of review and apparently has found that Ross did not assent to act as Plaintiff's attorney based on its own view of the weight of the evidence pertaining to this disputed issue of fact.

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6.

The Court's Order next addresses the evidence regarding Plaintiff's assent to the

attorney-client relationship. It is respectfully submitted that the Court has mistakenly held that, despite the undisputed evidence of Plaintiff's assent to Lionbridge's hiring of Ross and assent to Ross's initial actions on her behalf, her assent was ineffective because she did not know that Ross was taking these actions in her capacity as Plaintiff's attorney. 7. The Court has cited International Tele-Marine Corp. v. Malone & Associates, Inc.,

845 F.Supp. 1427, 1431 (D.Colo. 1994), for the well-established contract law requirement that the parties must agree on all essential terms of the relationship, as evidenced by the parties' manifestations of mutual assent. Here, Plaintiff assented to having the process handled by an attorney, who would be hired and paid by Lionbridge. By cooperating with Ross's office after her hiring, Plaintiff assented to Ross's retention and to her initial actions in pursuit of the green card. Clearly, Ross contracted to pursue a green card for Plaintiff and Plaintiff contracted to let her. The question, therefore, is whether Plaintiff not only had to assent to Ross's actions on her behalf but had to know that Ross was taking those actions as Plaintiff's attorney. Stated differently, is

Plaintiff's knowledge that Ross was acting in the capacity as Plaintiff's attorney an essential term of the contract, preventing the creation of the relationship, and leaving the person whose interests she was supposed to advance and protect without a remedy for negligent conduct? 8. Ross's capacity as counsel for Plaintiff certainly was not essential to Plaintiff,

because Plaintiff allowed Ross to take action on her behalf not knowing that Ross was acting as her counsel. It may have been an essential term to Ross, but, as discussed above, there is direct and circumstantial evidence that Ross considered herself to be Plaintiff's attorney and, therefore, assented to that relationship.

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9.

Even if Ross's capacity as counsel somehow is deemed essential to Plaintiff, thus

requiring her to assent to that term of the contract, Hoiles v. Alioto, 345 F.Supp.2d 1178 (D.Colo. 2004), indicates that such assent can be provided by an agent having apparent authority to act for the principal-client. In Hoiles, the attorney asserted an attorney-client relationship with the wife and daughter of his client, claiming that his client had assented to the contractual relationship as their agent. The court recognized the theory, but rejected the claim, stating that there was no evidence that the wife and daughter gave any indication to the attorney that the client was their agent. Id. at 1186. Had such evidence been present, it appears that the court would have allowed the claim to go forward, even though the wife and daughter did not expressly assent to the attorney's acting as their counsel, and presumably did not even know he was taking action on their behalf. Here, Plaintiff knew that Ross was taking action for her. More importantly, Ross knew that

Plaintiff's agent, Lionbridge, had hired her to pursue a green card for Plaintiff. Thus, the evidence absent from Hoiles is present here. 10. The discussion of apparent authority in Hoiles is in line with those cases from other

jurisdictions cited in Plaintiff's Brief in Opposition, indicating that an attorney-client relationship can be created by an agent without the actual knowledge of the client. This Court's Order states that this agency theory fails to apply the legal standards set forth in Colorado and asserts that those decisions are distinguishable. Plaintiff assumes that this statement is based on the Court's belief that the element of "mutual assent" to the attorney-client relationship requires that the person to be represented not only assent to the attorney taking action on their behalf, but assent that those actions be taken in the capacity of counsel. It is respectfully submitted that there is no basis for such a requirement under Colorado law.

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Hoiles, Simon v. Wilson, 684 N.E. 2d 495 (Ill. App. 1997), DePape v. Trinity Health Systems, Inc., 242 F.Supp.2d 585 (N.D. Iowa 2003), and 1 R. Mallen & J. Smith, Legal Malpractice §8.3 (2005 Ed.) at 934 all indicate that an attorney-client relationship can be created by an agent with apparent authority without the knowledge of the client. Further, International Tele-Marine Corp. v. Malone & Associates, Inc., supra, refers to the requirement of mutual assent, but does not address whether assent to the attorney undertaking action on behalf of the client is insufficient unless the client also knows that the attorney is acting as the client's counsel. Clearly, Plaintiff did assent to the relationship and knew that Ross was acting on her behalf. She just didn't know that Ross was supposed to be acting as her attorney during the process. 11. As argued in Plaintiff's Brief in Opposition, there are many instances in which an

attorney owes a duty to a client who may not be aware that there is an attorney-client relationship. Attorneys are appointed to represent the interests of mentally-incapacitated persons and persons entitled to protection under the Soldier's and Sailor's Civil Relief Act. Such persons are not left without a remedy if they are damaged by the negligent actions of their appointed counsel. After all, the entire purpose of retaining the attorney in such instances is to protect that person's interests. 12. The Court has stated that Plaintiff does not dispute that she neither sought nor

received legal advice from Ross concerning the legal consequences of her actions. Order at 23. This apparently is in reference to the statement in Turkey Creek, LLC v. Rosani, 953 P.2d 1306, 1311(Colo.App. 1998) that there must be a showing that the person sought and received legal advice from the attorney. The Court's statement about the evidence is incorrect. Further, seeking and/or receiving legal advice is not a prerequisite to the formation of an attorney-client relationship.

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The evidence set forth in the Ross Defendants' summary judgment briefs indicates only that Plaintiff never asked for a "legal opinion" from Ross. Ross Defendants' Motion for Summary Judgment at 3. However, by agreeing to allow Ross to handle the process, Plaintiff clearly was seeking Ross's legal guidance, even if that did not involve a specific request for a legal opinion. Further, Ross provided legal advice to Plaintiff, through Lionbridge. She advised that the application could not be filed unless Plaintiff accepted an immediate demotion, that a salary survey was not a viable option, that "tweaking" Plaintiff's job description could not be done to obtain a favorable prevailing wage determination, and that giving Plaintiff the title of Translation Supervisor was not an available option. As the Court has noted, Turkey Creek cites People v. Morley, 725 P.2d 510 (Colo. 1986) for the proposition that there must be a showing that the person sought and received legal advice from the attorney. Morley, however, does not state that such a showing must be made to establish an attorney-client relationship. Rather, it merely states that such a showing is sufficient to establish the existence of an attorney-client relationship ("The relationship is sufficiently established when it is shown that the client seeks and receives the advice of the lawyer on the legal consequences of the client's past or contemplated actions"). Id. at 517. Clearly, there are many instances in which an attorney-client relationship is formed without seeking and receiving advice about legal consequences of the client's actions. For instance, a client can ask an attorney to prepare a powerof-attorney or will or ask the attorney to enter an appearance in a case. Here, Plaintiff, through Lionbridge, asked Ross to obtain a green card. Assuming for the moment that Plaintiff and Ross had sat down at the outset and agreed that Ross would act as Plaintiff's attorney, there would be no question that an attorney-client relationship had been formed, even if Plaintiff never asked for or

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received Ross's advice. Here, of course, Plaintiff did receive legal advice from Ross via Lionbridge. But with or without that advice, Ross's agreement to undertake the green card process was sufficient in itself to create an attorney-client relationship. 13. Ross was hired to act on Plaintiff's behalf. The evidence in the light most favorable

to Plaintiff indicates that she considered herself to be Plaintiff's attorney and assented to this relationship. It is undisputed that Plaintiff assented to Ross taking action on her behalf. Whether Ross was acting in the capacity of attorney for Plaintiff was not an essential term to Plaintiff, since she authorized such action without knowing of Ross's capacity. Ross negligently performed the task she agreed to undertake, thus causing great damage to Plaintiff. Plaintiff must not be left without a remedy simply because she did not know that Ross was acting as her attorney - a circumstance caused in large part by Ross's own actions in shutting Plaintiff out of the process. WHEREFORE, Plaintiff respectfully requests that this Court reconsider its Order of January 26, 2006 and reinstate her claims against the Ross Defendants. Plaintiff requests such other and further relief as the Court deems just and proper under F.R.C.P. 59. Dated this 30th day of January, 2006.

Respectfully submitted, DIETZE and DAVIS, P.C.

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By: "s/ Joel C. Maguire" Joel C. Maguire Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected] Attorney for Plaintiff Isabelle DerKevorkian CERTIFICATE OF SERVICE I hereby certify that on January 30th, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: John Edwin Bolmer, II [email protected] [email protected] Dan S. Cross [email protected] [email protected] David Everett Leavenworth, Jr. [email protected] [email protected] [email protected] By: "s/ Susan J. Armour" Susan J. Armour, Legal Assistant Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected]

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