Free Motion to Supplement - District Court of Colorado - Colorado

Case 1:03-cv-02474-WYD-PAC

Document 135

Filed 10/28/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-2474-WYD-PAC CHARLOTTE SCHNEIDER and DEAN WYMER, Plaintiffs, v. LANDVEST CORPORATION, a Kansas corporation, And DAVID MASON, individually Defendants.

Motion to Supplement Findings of Fact Concerning the Doctrine of Judicial Estoppel and to Supplement Record with Correspondence from Social Security Administration COMES NOW Plaintiff, Charlotte Schneider, through undersigned counsel, and requests that the Court allow her to supplement the Findings of Fact and Conclusions of Law filed October 24, 2005 to include findings relevant to the defense of judicial estoppel. Plaintiff's Proposed Supplemental Finding of Fact and Conclusions of Law Re: Judicial Estoppel, Submitted October 28, 2005 is filed herewith. Plaintiff also moves to include in the record correspondence from the Social Security Administration. Since Defendant's position is that the ordinary rules of disclosure don't apply to the doctrine of judicial estoppel some leniency in procedure should be allowed Plaintiff to provide the Court with her evidence. Alternatively, the correspondence from the Social Security Administration, proposed Exhibit 74, is her 1

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"proffer" of evidence which she could have offered at trial if the issue of judicial estoppel had been raised in the Answer, in the final Pretrial Order or even argued before the evidence was closed. Plaintiff does not ask the Court to find a waiver of the issue by the Defendants but only to allow Plaintiff to submit her evidence and authority on the issue. Plaintiff did not litigate the issue of judicial estoppel at trial because she wasn't given notice of the issue. The issue was not raised in the Answer as an affirmative defense, nor was it raised in the final Pretrial Order, nor was it mentioned by Defendants before evidence was closed. Evidence of the receipt of Social Security Disability benefits was not objected to at trial by Plaintiff because it was Defendants' original theory of the case that Plaintiff made the claim for overtime compensation to "get back" at the Defendants for refusing to modify her job and pay, as it had for others, so that she could continue to receive Social Security Disability benefits. Exhibits A17 (letter requesting reduced pay), A18 (response of Murray) and A19 (response of Mason) were clearly admissible as relevant to Defendants' original theory of the case and did not provide Plaintiff notice that Defendants' actual theory of the case was judicial estoppel. Defendants' trial strategy was to deliberately conceal the issue of judicial estoppel from the Plaintiff and the Court in order to prevent development of the issue at trial. Defendants' position as disclosed to counsel this date is that it was not required to disclose an issue which can be raised by the Court itself. The result of Defendants' trial strategy was to prevent the Plaintiff from presenting her legal authority and evidence on the issue. Her legal authority is that there is no inconsistency between receiving Social 2

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Security Disability benefits and working. 42 U.S.C. § 422 (c). A trial work period is authorized by 42 U.S.C. § 423 (e); 20 C.F.R. §§ 404.1592 & .1596. She alluded to this in her testimony at trial but did not fully explain it because she did not know that judicial estoppel was Defendants' theory of the case. The evidence which should be included in the record to prevent manifest injustice is proposed Exhibit 74, filed herewith. The proposed Exhibit 74 demonstrates that Plaintiff disclosed her work and income to the Social Security Administration and was still eligible for benefits. Had Defendants' chosen to disclose their theory of the case to the Plaintiff and the Court before the trial was over Plaintiff could have offered this evidence at trial. Defendants should not be allowed to create a record for appeal on this issue which excludes Plaintiff's evidence. As can be seen from the attached, there is no inconsistency between working and receiving Social Security Disability benefits. Statute and regulations provide for "trial work months." 42 U.S.C. § 423 (e); 20 C.F.R. §§ 404.1592 & .1596. Failure to include the correspondence from the Social Security Administration in the record may allow Kutak Rock to mislead an appellate court, unfamiliar with the application of the "trial work" rules to a specific case, into believing that Charlotte Schneider made an inconsistent claim in another forum. She did not. Certificate of Compliance D. Colo. L.R. 7.1 The undersigned certifies that she has conferred with the counsel for Landvest Corporation concerning the motion. The Defendants object to the motion to supplement the record with correspondence from the Social Security Administration.

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Case 1:03-cv-02474-WYD-PAC

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Filed 10/28/2005

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The undersigned will notify the Court by at such time as Landvest determines whether it will object to Plaintiff's supplement to the Proposed Findings of Fact and Conclusions of Law. /s/ Donna Dell'Olio____ Donna Dell'Olio, #10887 Ian D. Kalmanowitz, #32379 Cornish & Dell'Olio 431 N. Cascade Avenue, Suite 1 Colorado Springs, CO 80903 Telephone: (719) 475-1204 FAX: (719) 475-1264 E-mail: [email protected] Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on this 28 th day of October, 2005, I caused a true and correct copy of the above and foregoing Motion to Supplement Findings of Fact Concerning the Doctrine of Judicial Estoppel and to Supplement Record with Correspondence from Social Security Administration was served, via the United States District Court electronic filing system and/or mailed via U.S. Mail, upon the following: Alan Rupe Stacia G. Boden Kutak Rock 8301 East 21st Street North, Suite 370 Wichita, KS 67206-2295

Heather Davis Kutak Rock 1801California Street, Suite 3100 Denver, CO 80202 s/Esther Kumma Abramson Esther Kumma Abramson

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