Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02461-MSK-MEH

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Filed 05/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2461-MSK-MEH

LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. DEFENDANT'S REPLY IN SUPPORT OF MOTION IN LIMINE RE: TORT CLAIMS AND PAROL EVIDENCE (DOCUMENT 101) Defendant, Feldmeier Equipment, Inc. ("Feldmeier"), by and through undersigned counsel, hereby submits its Reply in Support of Motion in Limine re: Tort Claims and Parol Evidence, as follows: REPLY As discussed in the Reply in Support of Motion in Limine Regarding Overflow Rate, Leprino urges this Court to apply an incorrect standard for determining the substantial identity of issue element of collateral estoppel. Leprino's argument seems to be that collateral estoppel would only apply if the contract in this case is the same contract construed in the State Court Action. Under Colorado law, applicable in this diversity action to determine whether collateral estoppel effect should be given to the Colorado state court judgment, the general principles of res judicata/collateral estoppel apply to material issues or facts previously determined: regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same of a different form of proceeding, or whether

Case 1:03-cv-02461-MSK-MEH

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the second action is upon the same or a different cause of action, subject matter, claim or demand, as the earlier action. In such cases it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief. If the existence, validity, or construction of a contract or other obligation has been adjudicated in an action it is res judicata when it comes again in issue in another action between the same parties, though the immediate subject matter of the two actions is different. Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775, 779-80 (1962) (cite to Am.Jur. omitted). Thus, collateral estoppel applies where the issue is really the same, even if the context of the issue is somewhat different in the subsequent action. See also In re. John Scott Hamilton, No. 94-1173, 1994 U.S. App. LEXIS 35999 (10th Cir. Dec. 20, 1994) (Virginia jury's finding of "willful and wanton" conduct was substantially identical, for purposes of collateral estoppel, to finding of "willful and malicious" conduct required to make debt nondischargeable under 11 USC 523(a)(6)). In other words, collateral estoppel applies because the contract at issue in this federal action is the same Leprino-drafted form contract with the same or essentially similar language regarding the purchase of the same type of tank as the contracts at issue in the State Court Action. Leprino has made no effort to distinguish the contract language at issue or any other material fact of this case from those at issue in the State Court Action. Therefore, Leprino has not given this Court any basis whatsoever to reach different fact findings or to apply a different rule of law in this action than those determined by the Colorado courts. The economic loss doctrine bars Leprino's tort claims, including its misrepresentation claims, because Feldmeier's obligations are unambiguously set forth in the parties' contract. The Colorado Court of Appeals explicitly approved the application of the economic loss doctrine under these circumstances, as

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per the example set by the Dufficy case. In doing so, the Colorado Court of Appeals rejected Leprino's argument on appeal that the Keller case required a different result. Under the principles of both collateral estoppel and judicial precedence, this Court cannot reach any different result. In addition, Leprino relies on the existence of its negligent misrepresentation claims to argue that parol evidence regarding the parties' contract should be admitted despite the unambiguous nature of the contract. Because such claims are barred for the reasons above, they do not provide a basis for admitting parol evidence in this case. Leprino's contract and warranty claims are based solely upon the parties' unambiguous written contract, and any parol evidence must be excluded as irrelevant and having the potential to confuse the jury and unduly prejudice Feldmeier. Respectfully submitted this 8th day of May, 2006. FOWLER, SCHIMBERG & FLANAGAN, P.C.

s/ Catherine A. Tallerico Catherine A. Tallerico Timothy J. Flanagan 1640 Grant Street Denver, Colorado 80203 Telephone: 303.298.8603 ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE I hereby certify that on this 8th day of May, 2006, I caused a true and correct copy of the foregoing DEFENDANT'S REPLY IN SUPPORT OF MOTION IN LIMINE RE: TORT CLAIMS AND PAROL EVIDENCE to be was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses:

Michael G. Bohn, Esq. [email protected] Mr. Jake Feldmeier [email protected]

s/ Michelle Rocke

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