Here is the response I got back from the mechanic’s attorney to my contempt motion. The purpose of the color coding will become apparent when you see myMessage 1 of 1 , Jun 12, 2008View Source
Here is the response I got back from the mechanic’s attorney to my contempt motion. The purpose of the color coding will become apparent when you see my reply in my next post. Color coding is a little trick I learned from Rick Schramm.
Plaintiffs disagreement with (1) the answer filed by Defendant, Andy ' s Custom Auto, LLC in this matter and (2) the Motion to Dismiss for failure to state a claim filed by Defendant Andy Bertoch is not a basis for a contempt citation against either party. Plaintiffs motion is frivolous and Defendants ' request that attorney fees be awarded for having to respond to it.
The Plaintiff states that Defendant ' s counsel has violated C.R.C.P 121 1-15(8) in failing to confer with the Plaintiff before filing responsive pleadings in this case. The rule cited by Plaintiff applies to opposing counsel and does not require consultation with pro se parties. Further, the Defendants were required to file responsive pleadings to the complaint in this case. The rule cited by Plaintiff is not applicable to responsive pleadings. Defendant, Andy Bertoch, filed a motion to dismiss for failure to state a claim as allowed under C.R.c.P. 12, rather than filing an answer. Defendant ' s motion is in the nature of a responsive pleading. C.R.C.P. 12(a) states in relevant part, "A defendant shall file his answer or other response within twenty days .... "
Plaintiff states that the answer filed by Defendant is a sham pleading and is untruthful, that the Defendant ' s counsel had failed to make reasonable inquiry into whether the motion to dismiss was warranted. These are issues to be tested at the trial of this matter. The evidence presented will test the truth of the pleadings.
Defendant, Andy Bertoch, continues his Motion to Dismiss and the pleadings do not allege a contractual relationship with Andy Bertoch personally or that he undertook work for Plaintiff in his personal capacity.
5. Plaintiff challenges the Affidavit of Defendant, Andy Bertoch, on the grounds that it was notarized by his counsel and that the Defendant ' s counsel has a disqualifying interest in the transaction. An attorney ' s representation of his client does not make him either a party to the transaction or give him a financial interest in the transaction. It is perfectly appropriate for an attorney to notarize his client ' s signature.
6. Plaintiff further claims that the affidavit of Andy Bertoch is false because a signature was faxed. The definition of "attested" is set forth in C.R.S. §12-55101 and c.R.S §12-55-110(4)(2), cited by Plaintiff, does not require a signature in the presence of the notary. The statute requires that a document be attested, in whole or in part, in the physical presence of the notary. To be properly attested, a document can be, among other things, acknowledged, sworn to, affirmed, certified, or verified in the physical presence of the notary. A fax signature does not mean that the document was not properly attested. In this case Defendant, Andy Bertoch, states that if the matter is heard, the facts will show that the document was drafted, acknowledged, affirmed, certified and verified correct in the physical presence of his attorney, the notary in the matter. The document was attested as required by statute.
Defendants respectfully request that the Plaintiff s Verified Motion for Court to Issue a Contempt Show Cause Order be denied and that the Court award attorney fees to Defendant ' s due to the frivolous nature of Plaintiffs Motion.
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