Free Affidavit - 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

Case No. 03-cv-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, 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, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; FRICK COMPANY, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

AFFIDAVIT OF PATRICK T. MARKHAM IN SUPPORT OF LEPRINO FOODS COMPANY'S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

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I, Patrick T. Markham, testify as follows: 1. I am an attorney at law licensed to practice before the United States District Court for

the District of Colorado and am a partner with the law firm of Jacobson Markham, L.L.P., one of the attorneys of record for plaintiff Leprino Foods Company ("Leprino"). This office is associated with Campbell Bohn Killin Brittan & Ray, LLC, in representing Leprino in this matter and has joined in filing the reply in support of Leprino's motion for summary adjudication. 2. I make this Declaration in support of Leprino Foods Company's Reply in Support of

Motion for Summary Adjudication. 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. On or about October 22, 2003, Leprino filed a motion to dismiss the complaint filed

by Big-D in the action then pending in the United States District Court for the Eastern District of California, Case No. CV-F-03-6354 ("California Action"). Leprino moved to dismiss the California Action on the grounds that the law/forum selection clause in the Prime Contract requires application of Colorado law and trial in the State of Colorado. On or about October 22, 2003, Big-D filed an opposition to Leprino's motion to dismiss. 4. I was directly involved with drafting, preparing and arguing Leprino's motion to

dismiss the California Action. At no time did Big-D set forth an argument, either oral or written, that the Prime Contract was abandoned by Leprino. Attached hereto as Exhibit A is a true and correct copy of the cover page and table of contents of Big-D's "Opposition to Motion to Dismiss Complaint for Improper Venue" (hereinafter "Opposition"). The Opposition does not state an argument that the Prime Contract was abandoned. 5. On January 22, 2004, the United States District Court for the Eastern District of

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California dismissed Big-D's action against Leprino for damages arising from an alleged breach of the Prime Contract. The "Order Granting Defendant Leprino Foods Company's Motion to Dismiss Complaint for Improper Venue and Dismissing Action as Against Leprino Foods Company Conditioned Upon Posting a Bond" ("Order") is attached hereto as Exhibit B. 6. I was directly involved with, and participated in all hearings regarding the California

Action. The Order submitted in the California Action regarding Leprino's motion to dismiss summarizes all the arguments of Big-D and Leprino in support and opposition to the motion. The record reflects that at no time did Big-D argue, either orally or in writing, that the Prime Contract was abandoned by Leprino. Furthermore, the Order does not mention abandonment of the Prime Contract as a theory of Big-D. 7. On or about May 10, 2004, Judge Robert E. Coyle of the United States District Court,

Eastern District of California entered the judgment of dismissal for the dismissal of Leprino Foods Company from the California Action. The "Judgment of Dismissal of Leprino Foods Company" is attached hereto as Exhibit C. 8. In compliance with the Order, Leprino posted a bond to secure the priority of Big-D's

mechanics lien. The "Release of Lien and Litigation Bond" is attached hereto as Exhibit D. 9. On October 29, 2004, Big-D filed an action against Leprino Foods Company in the

Superior Court of the State of California, County of Tulare, Case No. 04-212120, arising from the construction of the Leprino Foods Company- Lemoore West Facility. The "Complaint for Breach of Written Contract; Action Against Mechanics' Lien Release Bond; and for Declaratory Relief" is attached hereto as Exhibit E. 10. On or about May 23, 2005, Big-D filed an appeal of the United States District Court,

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Eastern District of California's order dismissing Leprino from that action with the Ninth Circuit Court of Appeals (hereinafter "Appeal"). The cover page and table of contents of "Appellant Big-D Construction Corp.- California's Opening Brief on Appeal" (hereinafter "Appeal Brief") are attached hereto as Exhibit F. 11. I was directly involved with drafting, preparing and arguing Leprino's opposition to

the Appeal. Additionally, I was directly involved with, participated in and appeared before the Ninth Circuit Court of Appeals for Leprino in opposition to the Appeal. The record reflects that at no time did Big-D argue, either orally or in writing, that the Prime Contract was abandoned by Leprino. Furthermore, Big-D's Appeal Brief does not mention abandonment of the Prime Contract as a theory of Big-D. 12. In the course of discovery, Big-D produced a "Job Set-up Information Sheet"

describing their understanding of the Agreement. In the section of the Job Set-up Information Sheet entitled "This is the Deal! - Contract Overview & Highlights" the following is noted regarding the general conditions for the Project, "$2,703,792 is a GMP for the items listed in the estimate. If we are under owner gets a refund, if we go over we eat it!!" (Emphasis added). Big-D's Job Set-up Information Sheet is attached hereto as Exhibit G. I testify under penalty of perjury the foregoing is true and correct, except as to matters set forth in information I believe in, and as to those matters I am informed to believe that they are true and correct. Executed this 21st day of February, 2006, at Sacramento, California. /s/ Patrick T. Markham Patrick T. Markham

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CERTIFICATE OF SERVICE I hereby certify that on the 21st day of February 2006, I electronically filed the foregoing AFFIDAVIT OF PATRICK T. MARKHAM IN SUPPORT OF LEPRINO FOODS COMPANY'S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Francis (Frank) J. Hughes at [email protected] Patrick Quinn Hustead at [email protected] Peter J. Ippolito at [email protected] Richard Carl Kaufman at [email protected] John David Mereness at [email protected] C. Michael Montgomery at [email protected] Daniel James Nevis at [email protected] Laurence R. Phillips at [email protected] N. Kathleen Strickland at [email protected] s/ Jill E. Lukins Jill E. Lukins, Paralegal

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