Free Motion in Limine - 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-1099-JLK-DLW WOLF CREEK SKI CORPORATION, INC. Plaintiff(s), v. LEAVELL-MCCOMBS JOINT VENTURE D/B/A THE VILLAGE AT WOLF CREEK Defendant(s). ______________________________________________________________________________ DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY OR ARGUMENT RELATING TO BOB HONTS' BANKRUPTCY OR FINANCIAL CONDITION ______________________________________________________________________________ Defendant Leavell-McCombs Joint Venture ("Joint Venture"), through its undersigned counsel, respectfully submits the following Motion in Limine to exclude evidence, testimony, or argument relating to Bob Honts' 1992 bankruptcy. In support of this motion, the Joint Venture states as follows: Certificate of Conferral: Pursuant to D.C.Colo.LCivR. 7.1A, counsel for the Joint Venture has conferred with opposing counsel to resolve the matter disputed herein and such counsel has indicated that the Ski Corp. will oppose the relief requested herein. I. INTRODUCTION At issue herein is whether the Ski Corp. breached an agreement with the Joint Venture (the "SURP Agreement") by failing to obtain governmental approval for an access road (the "Tranquility Access Road") connecting the Village Property to nearby Highway 160. The Ski

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Corp.'s ongoing breach also arises from its continuing conduct in failing to support the Joint Venture's planned development as agreed in the SURP Agreement. The Joint Venture's fraud, unjust enrichment, promissory estoppel and breach of the covenant of good faith claims stem from the Ski Corp.'s actions leading up to the execution of the SURP Agreement and conduct in concealing its wrongdoing in the years thereafter. The Ski Corp. has asserted a single breach of contract claim, and a promissory estoppel claim in the alternative, based on the same allegation: that the Joint Venture breached the SURP Agreement by failing to build a covered road connecting to the Tranquility Access Road and from there leading on into the heart of the Village Property as the "Village Access Road". The Ski Corp. has hurled a dizzying number of other derogatory accusations at the Joint Venture, and its officers and agents, none of them actionable, but calculated in total to tarnish the Joint Venture's reputation in the minds of the public, the governmental agencies with which the Joint Venture is working, the jury pool, and even this Court. The simple necessity of these motions in limine proves this point. The Ski Corp. has stated that it intends to introduce evidence at trial regarding Bob Honts' financial history including his 1991-92 Chapter 7 bankruptcy ("Bankruptcy"). This prior evidence is impermissible for a number of reasons. First and foremost, Mr. Honts is not a party to this lawsuit, therefore evidence of his financial condition is inadmissible at trial. And, there is no connection between the Bankruptcy or Mr. Honts' finances and any material dispute or fact of consequence herein. It is not relevant to the formation, execution or breach of the SURP Agreement or to the fraud committed by the Ski Corp; nor does it relate to any defense against these claims. And, the Ski Corp. has not identified any evidence suggesting any such

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connection(s). Rather, it claims that the Bankruptcy and Mr. Honts' financial condition are relevant to his `motive.' Even if such were true, evidence of the Bankruptcy and Mr. Honts' finances should be excluded from trial because it is highly prejudicial and has the potential to confuse and mislead the jury and to waste time. The sole aim of the Ski Corp. in admitting evidence of the Bankruptcy is to portray Mr. Honts in a negative light. But Mr. Honts is not a designated non-party at fault or a party herein, and his motive has no bearing on any ultimate fact of consequence. This fabricated "motive" rationale is purely speculative and insufficient to make the Bankruptcy or Mr. Honts' financial condition admissible at trial. The Joint Venture therefore requests an order excluding all reference to, testimony regarding, evidence of, or argument mentioning Mr. Honts' Bankruptcy or financial condition at trial II. RELEVANT FACTS.

At Mr. Honts' deposition on November 11, 2004, counsel for the Ski Corp. asked: Q: A: How about bankruptcy-type proceedings, have you ever been involved in anything like that? I took a bankruptcy in the early 1990s after the large Texas real estate recession. Mr. Honts received a

Exhibit A, November 11, 2004 deposition of Bob Honts, 32:3-8. discharge from the Bankruptcy Court on April 8, 1992. Exhibit B.

Two years after Mr. Honts' first deposition, he was deposed a second time and again asked about the Bankruptcy. That line of questioning established that, for the five-year period from 1991 to 1996 (when Mr. Honts went to work for the Joint Venture on the development at

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issue herein), Mr. Honts worked as a consultant and real estate broker. Exhibit C, April 14, 2006 deposition of Bob Honts, 623:1-628:06. The issue was again raised by counsel for the Ski Corp. at the deposition of Pete Leavell: Q: Did you have any understanding, at this point in time, from talking with Mr. McCombs or from anyone else, for that matter, that shortly before this time period, several years before this, 1 Mr. Honts had been broke and declared bankruptcy?

Exhibit D, April 19, 2006 deposition of Pete Leavell, 74:4-8. Q: Were you aware that he [Mr. Honts] had discharged $26 million in debt on a development project in San Antonio?

Id., 74:13-15. Clearly, the Ski Corp. intends to use this information to discredit Mr. Honts, and by association, the Joint Venture, at trial. This is so even though Mr. Honts did not acquire any financial interest in the Joint Venture until September 2003, eleven years after the Bankruptcy. Exhibit E, February 23, 2005 deposition of Bob Honts, 350:5-8. More specifically, Mr. Honts' is the owner and president of the Village at Wolf Creek Development Corporation. Exhibit A, November 11, 2004 deposition of Bob Honts, 13:9-13. That entity is the managing member of the Joint Venture. Id. 13:24-14:2. It owns a 1% interest in the Joint Venture. Id., 21:17-25. The other 99% if the Joint Venture is owned by the Village at Wolf Creek, LLC. Id. Mr. Honts owns 5% of that entity. Id. 19:24-20:5. The remaining 95% of the Village at Wolf Creek, LLC is owned by the McCombs Family Trust. Id., 20:13-22. Mr. Honts, personally, is not a Joint Venture member. Id. 13:18-19. (And neither is Mr. McCombs). Prior to September 2003, from 1996 on, Mr. Honts, through his company, Bob Honts Properties, Inc., worked as the commercial real estate broker and pre-development coordinator
1

The term "this time" refers to Deposition Exhibit 331 under discussion at that time. Exhibit 331 was dated November 15, 1999. See Exhibit D, 72:15-21 and attached Deposition Exhibit 331, Exhibit F.

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for the Joint Venture with respect to the proposed Village at Wolf Creek development. Id., 16:15-21; Exhibit E, February 23, 2005 deposition of Bob Honts, 350:23-351:5. Bob Honts Properties, Inc. was paid $5,000/month for its services. See Exhibit C, April 14, 2006

deposition of Bob Honts, 720:20-722:6. That money went to pay, among other things, overhead such as secretarial and other employee salaries, consultants, printing, telephone, travel and other expenses. Id. III. STANDARD OF REVIEW The motion in limine is a creature of neither the Federal Rules of Civil Procedure ("F.R.C.P") nor the Federal Rules of Evidence ("F.R.E."). First Savings Bank, F.S.B. v. U.S. Bancorp, 117 F. Supp.2d 1078, 1082 (D.Kan.2000); U.S. v. 215.7 Acres of Land, More or Less, 719 F. Supp. 273, 275 (D.Del. 1989)("[t]he Federal Rules of Civil Procedure do not explicitly authorize in limine rulings. Rather the court may make such rulings pursuant to its inherent authority to manage the course of trials."). Courts have held that such motions do, however, aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of the trial. See First Savings Bank, 117 F. Supp.2d at 1082; see also Palmieri v. Defaria, 898 F.3d 136, 141 (2d Cir. 1996); In re Hardesty, 242 B.R. 712, 714 (D.Kan. 1999). They also may save the parties time, effort and cost in preparing and presenting their cases. First Savings Bank, 117 F. Supp.2d at 1082; Deghand v. Wal-Mart Stores, Inc., 908 F. Supp. 1176, 1180 (D.Kan. 1997). The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground. First Savings Bank, 117 F. Supp.2d at 1082; In re Hardesty, 242 B.R. at 714.

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As a general rule, a federal district court is limited to excluding, in limine, only such evidence that is clearly inadmissible on all possible grounds. Crosson v. Caermar, Inc., 212 F. Supp.2d 875, 880 (N.D.Ill.2002); see also Knotts v. Black & Decker, Inc., 204 F. Supp.2d 1029, 1034 fn. 4 (N.D. Ohio 2002). Even so, relevant evidence may be excluded in order to promote the administration of the judicial process, and the discretion of the trial court will not be disturbed absent a manifest injustice to the parties. Thewatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir. 1987). Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. First Savings Bank, 117 F. Supp.2d at 1082. Denial only means that the court cannot decide admissibility outside the context of trial. Id.; see also Knotts, 204 F. Supp.2d at 1034 n. 4 ("[d]enial of a motion in limine merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded. The court will entertain objections on individual proffers as they arise at trial, even though the proffer falls within the scope of a denied motion in limine."). IV. APPLICABLE RULES OF EVIDENCE A. FEDERAL RULE OF EVIDENCE 401 "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed.R.Evid. 401 B. FEDERAL RULE OF EVIDENCE 402 All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. 6

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Fed.R.Evid. 402 C. FEDERAL RULE OF EVIDENCE 403 Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Fed.R.Evid. 403. D. FEDERAL RULE OF EVIDENCE 404 (a) Character evidence generally.--Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused.--In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of alleged victim.--In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of witness.--Evidence of the character of a witness, as provided in Rules 607, 608, and 609. (b) Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

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Fed.R.Evid. 404 (emphasis added). While Rule 404(a) applies only in criminal cases, the "admissibility standards of Rule 404(b) remain fully applicable to both civil and criminal cases." Fed.R.Evid. 404 advisory committee notes. E. FEDERAL RULE OF EVIDENCE 608 (a) Opinion and Reputation Evidence of Character.--The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.--Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on crossexamination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross examined has testified. ... Fed.R.Evid. 608. V. ARGUMENT A. EVIDENCE
OF THE BANKRUPTCY OR MR. HONTS' FINANCIAL CONDITION IS INADMISSIBLE CHARACTER EVIDENCE UNDER F.R.E. 404 AND 608.

Character evidence in the nature of prior bad acts may be admissible in civil cases under Rule 404(b)2 for the purpose of establishing motive. Motive, however, is not itself an ultimate issue. Charles Alan Wright & Kenneth W. Graham, Jr., 22 FED. PRAC. & PROC. EVID. § 5240 (2008 update). "[P]roof of motive must always be directed at some other fact that is an ultimate

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Rule 404(a)(1) and (2) are not applicable herein because they apply only in criminal cases. See Fed.R.Evid. 404 advisory committee notes.

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issue in the case." Id. "[C]ourts must be on guard to prevent the motive label from being used to smuggle forbidden evidence of propensity to the jury." Id. Accordingly, it is not enough for the Ski Corp. to claim that the Bankruptcy is admissible because it goes to Mr. Honts' motive and motive is an exception to the rule barring evidence of prior bad acts. The motive itself must be necessary to establish some other fact or element at issue. Typically, facts or elements that depend on evidence of motive include (1) establishing that an act was committed, (2) establishing the identity of an actor, or (3) establishing the requisite mental state. Id. Here, the Ski Corp. has not, and cannot identify any such underlying fact or element that relies on evidence of Mr. Honts' motive for proof. Mr. Honts was not a

party to the SURP Agreement, accordingly, his motive has no bearing on the interpretation of same (which would only become relevant in the event of ambiguity, which has not been judicially determined). There are no disputed issues regarding the identity of an actor. Finally, the only wrong alleged against the Joint Venture is breach of contract, which requires no evidence of mental state. Mr. Honts' motive or state of mind, therefore, provides no support for the Ski Corp.'s breach of contract claim or any other disputed issue herein. As a result, even assuming Mr. Honts' Bankruptcy is admissible prior bad act evidence of motive, it lacks relevance. At best, Mr. Honts' Bankruptcy and financial background provides a motive for him to avoid poverty. But such motive can be attributed to most members of the population and so provides no basis for incentivizing Mr. Honts more than any other witness or party herein. In the words of one scholar: "Doubts arise only when the supposed motivation is so universal that the [prejudicial acts sought to be introduced at trial] seem calculated only to prejudice, not to

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enlighten." Id. In fact, some of the more generalized motivations can lead to inferences of conduct that violates the social order; e. g., "the inference that poverty will motivate people to steal." Id. As a result, even assuming Mr. Honts' Bankruptcy and financial condition are admissible evidence of motive, the motive to avoid poverty is so universally shared that it lacks any particular relevance herein. Apart from the prior bad act evidence permitted under F.R.E. 404(b), specific prior instances of conduct are permissible under F.R.E. 404(a)(3), governing character of a witness, in conjunction with Rules 607 (who may impeach), 608 (evidence of character and conduct of witness), and 609 (impeachment by evidence of conviction of crime.) See Fed.R.Evid. 404(a)(3). However, under Rule 608, the only permissible character evidence must go to the witness' character for truthfulness or untruthfulness. See Fed.R.Ediv. 608(a). While there does not appear to be any case law on point, it is obvious that a witness' fifteen year old bankruptcy has nothing to do with his character for truthfulness or untruthfulness. As such, evidence of Mr. Honts' Bankruptcy is inadmissible at trial. B. EVIDENCE OF A PARTY'S FINANCIAL CONDITION IS RARELY ADMISSIBLE. "As a general rule, it is error to admit evidence of a party's financial condition unless necessary to determine the damages sustained." Whiteley v. OKC Corp., 719 F.2d 1051, 1055 (10th Cir. 1983). See also See Fed.R.Evid. 401 & 402 (defining relevant evidence and providing that evidence lacking relevance is not admissible at trial). "To admit financial condition evidence, the damages to be determined must be punitive in nature." Id. "[T]his inadmissible evidence includes that of the poverty of a party." Id.

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In this case, the Ski Corp. is not seeking any monetary damages whatsoever, much less punitive damages. Although Mr. Honts is not a party herein, the privacy protections afforded to witnesses are generally greater than accorded to parties. Thus, if the Joint Venture's financial condition is inadmissible, Mr. Honts' financial condition being even more remote in degree, is deserving of at least the same amount of protection. Hence Mr. Honts' financial condition and Bankruptcy lack relevance. In Williams v. Union Fidelity Life Ins. Co., 123 P.3d 213 (Mont. 2005), the plaintiff insured brought claims for breach of contract, fraud, and bad faith against her insurer for denying a claim for benefits for the death of her spouse under a credit life insurance policy that she and her spouse obtained in conjunction with their purchase of a pick-up truck. The insurer countered that the insureds had misrepresented the husband's medical condition on the insurance application. Prior to trial, the insured filed a motion in limine to exclude evidence of a prior joint bankruptcy and the court granted the motion. On appeal after jury verdict in favor of the insurance carrier, the carrier claimed this was error. According to the insurer, the insureds' joint bankruptcy was relevant to the issue of damages as well as to the deceased husband's credibility and state of mind. More specifically, the insurer asserted that the bankruptcy evidence

established that the insureds knew they could not pay for the truck on the day they purchased itevidence that they were not acting in good faith. It further argued that, because the insureds' credibility was a central issue in the case, the evidence of bankruptcy was essential to the insurance company's defense. The Montana Supreme Court rejected both arguments holding that the trial court acted properly. Id., 123 P.3d at 223.

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In Brough v. Imperial Sterling Ltd., 297 F.3d 1172 (11th Cir. 2002), the parties alleged breach of contract and fraud in connection with a property management contract. During trial, the plaintiff made several references to the defendant company's value and the value of its president's personal assets. The Eleventh Circuit Court of Appeals ruled that admission of this testimony, with minor exceptions, 3 was error. Here, too, the Joint Venture's financial condition, and by extension, Mr. Honts' financial condition, have no bearing on the amount of damages, or the method of calculating same, or any other issue of consequence herein. Furthermore, the Bankruptcy itself occurred four years before Mr. Honts became involved in the Village at Wolf Creek development, seven years before the execution of the SURP Agreement at issue herein, and eleven years before Mr. Honts acquired a financial interest in the managing member of the Joint Venture. temporal remoteness further attenuates any possibility of relevance. C. EVIDENCE OF THE BANKRUPTCY UNFAIRLY PREJUDICIAL.
AND

Thus, the Bankruptcy's

MR. HONTS'

FINANCIAL CONDITION WOULD BE

In addition to lacking probative value, remarks at trial about a party's financial condition are highly prejudicial, and even inflammatory. Garcia v. Mekonnen, 156 P.3d 1171, 1177

(Colo.App. 2006); Hathcock v. Wood, 815 So.2d 502, 508 (Ala. 2001). See also National Sur. Co. v. Morlan, 91 Colo. 164, 165-166 (Colo. 1932) (Insured's counsel's prejudicial remarks concerning defendant insurer and insurers generally held reversible error). For example, during closing arguments in Brough, Golding's attorney made several references to defendant ISL's wealth. 297 F.3d at 1179. The court of appeals found that these
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The court allowed evidence as to the value of certain properties owned by defendant, and evidence regarding the value and profitability of certain of defendant's subsidiaries because that was relevant to the amount of damages and to the authenticity of the size of plaintiff's commission check. 297 F.3d at 1179.

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statements were prejudicial and should have been excluded. Id. "[S]uch evidence in normal case would almost certainly be prejudicial, in that individual's lack of money would automatically put every poor person under suspicion." U.S. v. Hawkins, 360 F.Supp.2d 689, 694 (E.D.Pa. 2005). In light of the highly prejudicial nature of this kind of information, evidence, testimony or argument concerning Mr. Honts' financial condition or Bankruptcy should be precluded at trial. C. EVIDENCE OF THE BANKRUPTCY WILL CLOUD THE ISSUES AND WASTE TIME. Even where such evidence is relevant, it is properly excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FedR.Evid. 403; see also U. S. v. Clavey, 565 F.2d 111 (7th Cir. 1977) quoting Fed.R.Evid. 403.4 In determining whether potentially relevant evidence should be

excluded pursuant to Rule 403, courts must balance the probative value of and need for such evidence against the harm likely to result from its admission. Rigby v. Beech Aircraft Co., 548 F.2d 288, 293 (10th Cir. 1977) citing Advisory Committee's commentary on Fed.R.Evid. 403. Here, the harm likely to result from the admission of evidence regarding the Bankruptcy and Mr. Honts' financial condition substantially outweighs any probative value. As noted above, the Bankruptcy occurred seven years prior to the events underlying this matter. This obvious remoteness in time minimizes any possible probative value, and increases the possibility that evidence of such bankruptcy would confuse or mislead the jury.

4

Vacated on other grounds by 578 F.2d 1219, certiorari denied 99 S. Ct. 351, 439 U.S. 954.

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Finally, evidence of the Bankruptcy would be a waste of time as Mr. Honts is not even a party to this litigation. In other words, permitting evidence of a matter that occurred in another state fifteen years ago would simply confuse the jury with respect to the real issues in this matter, creating a possibility of significant harm to Mr. Honts and to the Joint Venture. VI. CONCLUSION As Mr. Honts is not a party to this lawsuit, and as the Bankruptcy has no relevance to any issue of consequence herein, and as and evidence of the Bankruptcy would be highly prejudicial, potentially reversible error, and, finally, given its potential to confuse the jury and waste trial time, the Joint Venture respectfully requests the Court to instruct the Ski Corp., through the Ski Corp.'s counsel, and its counsel individually, not to mention, refer to, interrogate concerning, voluntarily answer, or attempt to convey before the jury, at any time during these proceedings, in any manner, either directly or indirectly, information as to Mr. Honts' financial condition or Bankruptcy, and not to make any reference or inference to the fact that this motion has been filed, argued, or ruled on by the Court; and further that Ski Corp.'s counsel be instructed to warn and caution each and every witness appearing in Ski Corp.'s phase of this litigation to strictly comply with the rulings of the Court. A proposed Order is attached hereto.

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Respectfully submitted this 21st day of March, 2008 BERG HILL GREENLEAF & RUSCITTI LLP

____s/ Kim A. Tomey ______________ George V. Berg, Jr. Kim A. Tomey 1712 Pearl Street Boulder, CO 80302 Phone: (303) 402-1600 Fax: (303) 402-1601 Email: [email protected] Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of March, 2008, I electronically filed the foregoing DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY OR ARGUMENT RELATING TO MR. HONTS' BANKRUPTCY OR FINANCIAL CONIDTION with the Clerk of the Court using the CM/ECF system which will send notification to such filing to the following e-mail addresses, Andrew R. Shoemaker Hogan & Hartson LLP 1470 Walnut Street, Suite 200 Boulder, CO 80302 [email protected] Jim Moriarty Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] Cynthia A. Mitchell Hogan & Hartson LLP 1470 Walnut Street, Suite 200 Boulder, CO 80302 [email protected] Robert D. Erben Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] David Krivit Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] Michael E. McLachlan McLachlan & Underell, LLC 813 Main Avenue, Suite 308 Durango, CO 81301 [email protected]

___s/ Linda D. Smith______________

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