Free Motion in Limine - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 03-cv-02669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP.- CALIFORNIA, a Utah corporation; et al., Defendants/Counterclaimants. BIG-D CONSTRUCTION CORP. ­ CALIFORNIA, a Utah corporation, BIG-D CONSTRUCTION CORP., a Utah corporation, and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. ­ CALIFORNIA, et al., Counterdefendant/Third Party Defendants. AFFIDAVIT OF FRANCIS J. HUGHES IN SUPPORT OF DEFENDANTS BIG-D CONSTRUCTION CORP.--CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.'S MOTION IN LIMINE NO. 6 TO PRECLUDE INCLUSION OF ATTORNEYS' FEES AS PART OF A PARTY'S CLAIM FOR DAMAGES

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I, FRANCIS J. HUGHES, testify: 1. I am one of the attorneys of record for Defendants Big-D Construction

Corp.-California, Big-D Construction, Big-D Corp., and Big-D Capital Corp. (hereinafter collectively "Big-D") and I am licensed to practice law before the United States District Court for the District of Colorado. 2. I make this Affidavit in Support of Big-D's Motion in Limine No. 6 to preclude

inclusion of attorneys' fees as part of a party's claim for damages. I have personal knowledge of all facts stated in this Affidavit and would competently testify under penalty of perjury thereto if called as a witness. 3. This action arises from a series of disputes stemming from the construction of a

cheese processing facility located in Lemoore, California (the "Project.") Plaintiff Leprino Foods Company ("Leprino"), as owner, entered into a general contract with Big-D to construct the Project. In turn, Big-D contracted with numerous subcontractors, including Third-Party Defendant Marelich Mechanical Company, Inc. ("UMM"), to perform various works on the Project. Leprino contends that Big-D and its subcontractors delayed completion of the Project and seeks damages which it claims to have suffered as a result of the Project delays. Big-D and UMM deny that they are responsible for causing the Project delays. In addition, Big-D seeks its remaining contract balance and its additional and extended general conditions, while UMM seeks additional compensation for its work on the Project. 4. Big-D and UMM entered into a subcontract agreement (the "Subcontract") for

UMM to perform various works on the Project. Article 8.7 of the Subcontract states that the Subcontract "shall be deemed to have been made in and shall be interpreted under the laws in the

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jurisdiction in which the project is located." Because the Project was located in Lemoore, California, it is anticipated that both Big-D and UMM understand that the Agreement shall be interpreted under California, as opposed to Colorado, law. 5. UMM's claim for attorney fees is firmly rooted in the terms and conditions of the

Subcontract. Pursuant to Article 7.2 of the Subcontract, UMM and Big-D agreed that, in the event of a legal dispute, the prevailing party would be entitled to its reasonable attorney fees: "In the event of a dispute, the prevailing party shall be entitled to recover from the other party all reasonable attorney fees, costs and expenses incurred, including statutory interest." Subcontract, Article 7.2. 6. In the case at bar, evidence of UMM's attorney fees is irrelevant to determining

the underlying dispute between the parties. As mentioned, UMM claims to have incurred additional and unexpected costs on the Project due to delays and changes to its scope of work. Big-D denies these allegations and, further, requests a determination as to the extent of the Project delays caused by UMM. That UMM has incurred attorney fees, or the particular amount of fees, is irrelevant to determining the dispute at issue. As the law makes clear, UMM will have an opportunity, after the merits of the trial have been decided and assuming it is deemed the prevailing party, to present evidence of its costs and reasonable attorney fees. 7. Not only are UMM's attorney fees irrelevant to the merits of the case, inclusion of

the fees in UMM's claim for damages would only serve to confuse the jury to the prejudice of Big-D. If UMM is allowed to include its attorney fees as part of its claim for damages, the jury will be led to believe UMM's damages are considerably higher than what they may actually be. Not only could the inflated damages claim confuse the jury, it might influence the jury into believing that UMM's claims are valid in light of the amount of fees it has incurred during the

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case. 8. In addition, Big-D and UMM have entered into a Stipulation that the evidence

regarding attorneys' fees owed under the indemnity clause of the Subcontract will not be submitted until after the trial of the remainder of the case. 9. Big-D and UMM, through a series of emails, attached to the Affidavit of Francis

J. Hughes as Exhibit A, agreed that fees relating to indemnity would be decided by the Court after the jury decides the remaining issues of the case. 10. Attached hereto as Exhibit A is a true and correct copy of emails to and from me

and my partner, Christopher Hersey, and UMM's counsel, Pete Ippolito. I declare under penalty of perjury under federal law and under the laws of the States of Colorado and California that the foregoing is true and correct and that this Declaration was executed this 1st day of March, 2006, at San Jose, California.

s/ Francis J. Hughes Francis J. Hughes Miller, Morton, Caillat & Nevis, LLP 25 Metro Drive, 7th Floor San Jose, California 95110 Telephone: (408) 292-1765 FAX: (408) 436-8272 E-mail: [email protected] Attorneys for Defendant Big-D Construction Corp.- California and Big-D Construction Corp.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 1, 2006, I electronically filed the foregoing named document: AFFIDAVIT OF FRANCIS J. HUGHES IN SUPPORT OF DEFENDANTS BIG-D CONSTRUCTION CORP-CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.'S MOTION IN LIMINE NO. 6 TO PRECLUDE INCLUSION OF ATTORNEYS' FEES AS PART OF A PARTY'S CLAIM FOR DAMAGES -ANDCERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael Gerard Bohn [email protected] [email protected] Bret Matthew Heidemann [email protected] [email protected] Francis (Frank) J. Hughes [email protected] [email protected] Patrick Quinn Hustead [email protected] Peter J. Ippolito [email protected] Richard Carl Kaufman [email protected] [email protected] Patrick T. Markham [email protected] [email protected] John David Mereness [email protected] C. Michael Montgomery [email protected] [email protected] [email protected] Daniel James Nevis [email protected] [email protected] N. Kathleen Strickland [email protected] [email protected] Laurence R. Phillips [email protected] [email protected]

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And, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: s/ Kathleen Marie Dolce Kathleen Marie Dolce
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