Free Amended Document - District Court of Colorado - Colorado

Case 1:03-cv-02504-REB-CBS

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Filed 09/23/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02504-REB-CBS PETER HORNICK, an individual, Plaintiff, v. GARY BOYCE, and JOANNE BOYCE, individuals Defendants.

AMENDED FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The Pre-Trial Conference was held on Wednesday, September 28, 2005 at 3:30 p.m. Mr. Herbert A. Delap of Dufford & Brown, P.C. appeared on behalf of Mr. Peter Hornick, and Messrs. Allan Hale and John Lubitz appeared on behalf of Mr. and Mrs. Boyce. 2. JURISDICTION This Court has jurisdiction over this matter pursuant to 28 U.S.C. §1332 as there is diversity of citizenship between Hornick and the Defendants and the amount in controversy exceeds $75,000.

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3. CLAIMS A. Plaintiff's Claims:

Plaintiff claims that he and the Defendants were members of a limited liability company, known as Villa Grove Ranch Co., LLC. Hornick owned 50% of the company and the Defendants jointly held the other 50%. In October, 2001 Hornick exercised the Option to purchase the combined 50% membership interest, that the Defendants previously granted to him in late 2000. This Option to purchase the Defendants' respective interest was valued at $500,000.00 ("the Option"). December 11, 2001 was the agreed upon date for the Closing on the Option. Mr. Hornick tendered the funds to the Defendants as of that date. The Defendants did not perform their end of the bargain. They instead demanded certain releases and indemnities not required by the Option on the day of Closing. Additionally, the Defendants failed to provide their interest free and clear of liens as required by the Option. At the time of closing, a lien existed against the subject interest. The relief sought by Hornick include specific performance as contemplated by the Option, damages in an amount to be proven at trial, all interest accrued, attorneys' fees and costs, and such further relief the Court deems just and proper. B. Defendants' Claims:

For Defendants, Gary and Joanne Boyce's statement of claims, see Exhibit A. In order to prove their claim for rescission against Plaintiff Peter Hornick, Defendants have the burden of proving, by a preponderance of the evidence, the following elements: 2

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i.

That Plaintiff failed to adequately and appropriately tender performance under

the subject Option Agreement; ii. By failing to tender performance by the December 11, 2001 Closing Date,

Hornick's conduct evidenced a clear intent to abandon the contract and, therefore, the contract has been rescinded; and, iii. As a result of the aforesaid breach and abandonment of the contract by

Hornick, Gary and Joanne Boyce have incurred substantial costs, expenses, and damages. Colorado state law governs the subject claim. Defendants' affirmative defenses to Plaintiff's claim for breach of contract are as follows: i. documents. ii. Plaintiff's claim is barred by his refusal to acknowledge the authority of Gary Plaintiff's claim is barred by his prior breach of relevant and operative

Boyce to convey certain Villa Grove property interests. iii. iv. v. Boyces. vi. vii. Plaintiff has failed to mitigate his damages, if any. Plaintiff abandoned the contract before ever attempting to tender performance, 3 Plaintiff's claim is barred by the doctrine of unclean hands. Plaintiff's claim is barred by the doctrine of estoppel. Plaintiff has not incurred any damages as a result of any act or omission by

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rendering the contract a nullity, and therefore the Complaint should be dismissed. 4. STIPULATIONS The Parties stipulate to the jurisdiction of this Court. Factually, they stipulate that Villa Grove, LLC was owned by Mr. Hornick and Mr. and Mrs. Boyce. Hornick owned 50% and the Boyce's owned the other 50% jointly. An Option to purchase the Defendants' interest was extended in 2000 and a Closing date for the transaction was set in October, 2001. The Parties do not dispute that this matter is a breach of contract issue. The Parties further stipulate to the use of the Federal Rules of Civil Procedure and the Federal Rules of Evidence for this Trial. 5. PENDING MOTIONS No motions are pending at this time for either party. 6. WITNESSES 1. List of nonexpert witnesses a. b. 2. Plaintiff's list of nonexpert witnesses, See Exhibit 1. Defendant's list of nonexpert witnesses, See Exhibit B.

Neither party anticipates calling expert witnesses. 7. EXHIBITS

a.

Lists of Exhibits are attached as follows. (1) (2) Plaintiffs Exhibit List is hereby attached as Exhibit 2. Defendants Exhibit List is hereby attached as Exhibit C. 4

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b.

Copies of listed exhibits must be provided to opposing counsel and a pro se party no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided. 8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES Defendants shall not call any witnesses from the firm of Hale Friesen, LLP, past

or present, to testify at trial in this matter under any set of circumstances. 10. SETTLEMENT a. Counsel for the parties met on several occasions to discuss in good faith the settlement of the case. b. The participants in the settlement conference included counsel and party representatives. c. d. e. f. The parties were 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 little possibility of settlement. There is not another date for settlement conference before the magistrate judge or other alternative dispute resolution method. g. Counsel for the parties considered ADR in accordance with D.C.COLO.L.R.16.6. 5

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11. OFFER OF JUDGMENT Counsel acknowledge familiarity with the provisions of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, the Final Pretrial order will control the subsequent course of this action and the trial, and may not be amended except by constant 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, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION AND PROCEEDINGS

1. 2.

The Trial is to the Court. Supplemental Pre-Trial Conference will be held on September 28, 2005, at 3:30 p.m.

before Magistrate Judge Shaffer. A trial date will be set at that time. The Trial is anticipated to last three days. 3. The Trial is to be held in Denver, Colorado.

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DATED this _________ day of September 2005.

BY THE COURT: ___________________________________ United States Magistrate Judge

APPROVED:

Herbert A. Delap s/ Herbert A. Delap Dufford & Brown, P.C. 1700 Broadway, Suite 2100 Denver, CO 80290-2101 Telephone: (303) 861-8013 Fax: (303) 832-3804 E-mail: [email protected] Attorney for Plaintiff Peter Hornick

Robert T. Hoban s/ Allan L. Hale John G. Lubitz Robert T. Hoban Hale Friesen, L.P. 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Fax: (720) 904-6006 [email protected] [email protected] [email protected] Attorneys for Defendants

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