Free Proposed Pretrial Order - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.03-RB-2504 PETER HORNICK, an individual Plaintiff, v. GARY BOYCE and JOANNE BOYCE, individuals Defendants ______________________________________________________________________________ PLAINTIFF'S PROPOSED FINAL PRE-TRIAL ORDER ______________________________________________________________________________

1. DATE AND APPEARANCES The Pre-Trial Conference was held on Monday, July 18, 2005 at 10:00 a.m. Mr. Robert Bruce appears on behalf of Mr. Hornick, and Mr. Lubitz appears 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 $75,000.00

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3. 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 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 includes specific performance as contemplated by the Option, damages in the amount to be proven at trial, all interest accrued, attorneys' fees and costs, and such further relief the Court deems just and proper.

Defense claims that Villa Grove Ranch Co., LLC is a Colorado LLC in which Plaintiff, Peter Hornick owns a 50% membership interest, and Defendants, Gary C. Boyce and Joanne S. Boyce jointly own a 50% membership interest. In 2000, the Boyces and Hornick entered into an Option Agreement, wherein Hornick was granted an option to purchase their 50% membership interest of $500,000.00 The Option anticipated various agreements and documents to effectuated the Closing ("Closing Documents"), all of which were to be subsequently negotiated between the parties.

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In October, 2001, Hornick exercised the Option and a Closing date of December 11, 2001 ("Closing Date") was triggered by its own terms. Boyce tendered performance on the Closing Date pursuant to commercially reasonable Closing Documents, which included standard representations, warranties and releases; all of which were rejected by Hornick. Thus, Boyce performed any and all of his obligations under the Option. Hornick, however, never performed his obligation under the Option, and consequently the Option is null and void. Specifically, the Option required that Hornick pay the balance of the purchase price in immediately available funds on the Closing Date. Therefore, due to Hornick's failure to comply with the terms of the Option, the Option became null and void. With that said, following the aborted Closing Date, Boyce contacted Hornick with regard to taking further steps to effect the subsequent closing of the Option. Drafts of various closing documents were exchanged from December 27, 2001 through January24, 2002, when Hornick failed to respond to Boyce's latest revision of the Closing Documents. Hornick, therefore, abandoned any further attempts to resurrect to Option Agreement. Thus, Hornick is in breach, the Option was abandoned by Hornick, and must be rescinded.

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 Boyces 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.

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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 As the Defense has recently withdrawn the Motion for Leave to Conduct Limited Discovery, no motions are pending at this time for either party.

6. WITNESSES 1. List of nonexpert witnesses a. Plaintiff's list of nonexpert witnesses See Exhibit A. b. Defendant's list of nonexpert witnesses, See Exhibit B.

2.

Neither party anticipates calling expert witnesses.

7. EXHIBITS a. Lists of Exhibits are attached as follows.
(1)

Plaintiffs Exhibit List is hereby attached as Exhibit 3.

(2) Defendants Exhibit List is hereby attached as Exhibit 4.
b.

Copies of listed exhibits must be Provided to opposing counsel and any 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.

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8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES The issue of counsel as witnesses to the transactions and their respective need to be called as witnesses still exists.

10. SETTLEMENT a. Counsel for the parties and any pro se party met on several occasions to discuss in good faith the settlement of the case. b. The participants in the settlement conference included counsel, party representatives, and any pro se party. c. d. The parties were promptly informed of all offers of settlement. Counsel for the parties and any pro se party do not intend to hold future settlement conferences. e. It appears from the discussion by all counsel and any pro se party that there is little possibility of settlement. f. There is not another date for a settlement conference before the magistrate judge or other alternative dispute resolution method. g. Counsel for the parties and any pro se party considered ADR in accordance with D.C.COLO.L.R.16.6.

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11. OFFER OF JUDGMENT

Counsel and any pro se party acknowledge familiarity with the provision 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 consent 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 and to the pleadings.

13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. The Trial is to the Court The Trial is anticipated to last 3 days commencing August 29, 2005 The Trial is to be held in Denver, Colorado

DATED this ________ day of July, 2005

BY THE COURT:

______________________________ United States Magistrate Judge

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APPROVED:

s/ Robert J. Bruce Robert J. Bruce Lawlis & Bruce, LLC 1875 Lawrence Street, Suite 750 Denver, Colorado 80202 Telephone: (303) 573-5498 FAX: (303) 573-5537 E-mail: [email protected] Attorney for Plaintiff Peter Hornick

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