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16330The Art of Suing a Mechanic-An Order & Response

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  • legalbear7
    Jul 25, 2008

      Well, I got a ruling back on my contempt show cause motion. The most pertinent paragraph says:


      "On May 21, 2008 the Plaintiff filed his motion for contempt. Plaintiff alleges that The Defendant failed to comply with C.R.C.P. Rule 121 1-15(8) by not conferring with Plaintiff. The Court finds that the Defendant was not required to confer prior to filing his Motion to Dismiss and Motion for Summary Judgment. See Committee Comment to Rule 121 1-15(8). A duty to confer would not be appropriate to a motion to dismiss or a motion for summary judgment. The Defendant however was required to state in his motion why no conference was attempted or held. See Committee Comment. Defendant's failure to do this is not a basis for contempt."


      Oh great! A judge that doesn't read the paperwork. I have used motions for clarification in the past. Just to assure myself that this was viable in Colorado I ran the phrase "motion for clarification" in the versuslaw.com case law data base for Colorado. The very first case I looked at showed a party using a motion for clarification simultaneously with a motion for declaratory judgment under Colorado rule of civil procedure 57. I adopted what they did and came up with the following:


      "I, Barry Smith, having received this Court's order on my Verified Motion For Court To Issue A Contempt Show Cause Order, move this Court for clarification or in the alternative declaratory judgment pursuant to C.R.C.P. 57(a) on the following issues with respect to that order:




      "Verified Motion for Court to Issue A Contempt Show Cause Order= my motion

      Plaintiff's Reply to Defendants' Response To Verified Motion For Court To Issue A Contempt Show Cause Order= my reply




      "1. In ¶ 13 of my reply I wrote, "I wanted Defendant's counsel to confer with me about motions I was considering filing." [Emphasis in the original.]


      2.  In ¶¶ 1-2 of my motion I pointed out that I sought to confer with the defendant's counsel before filing my own motions.


      3. In ¶ 3(h) of my motion I point out that I wanted the defendant's counsel to confer with me about motions I was thinking of filing.


      4. In ¶ 9 of my motion I point out to the court that I saw the value in conferring with my opponent prior to filing motions.


      5. In ¶ 10 of my reply I cast defendant's counsel's statement, "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 ...." in the category of a "straw man argument" saying in ¶ 13, "A review of my Verified Motion For Court To Issue A Contempt Show Cause Order will show that I did not ever seek to have the Defendant's counsel held in contempt on the basis of the Defendant having filed responsive pleadings."


      6. In ¶ 20 of my reply I cite to Yadon v. Southward, 2002.CO.0000298 <http://www.versuslaw.com>; 64 P.3d 909 (Colo.App. 2002) as standing for the proposition that both rules and statutes apply to non-attorneys even if they do not specifically state so.


      7. In ¶ 22 of my reply I cite to Loomis v. Seely, 1983.CO.40193 http://www.versuslaw.com> ¶ 18; 677 P.2d 400 (Colo.App. 1983) as standing for the proposition that pro ses are subject to all of the rules.


      Questions for Declaratory Judgment or Clarification:


      8. Code of Judicial Conduct Canon 2(A) provides in pertinent part, "A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."


      9.  Question: If a judge issues an order which creates the appearance that he has only read one party's paperwork does that promote public confidence in the integrity and impartiality of the judiciary?


      10. Question: When a judge only reads one of the party's paperwork prior to ruling has he complied with Article 2 §§ 6 & 25 of the Colorado Constitution or the 5th and 14th Amendments to the U.S. Constitution?


      11. Code of Judicial Conduct Canon 3(A)(4) provides in pertinent part, "A judge should accord to every person who is legally interested in a proceeding, or his or her lawyer, full right to be heard according to law…"


      12. Question: If a judge does not read, or, makes no attempt to understand my motion or reply, have I been afforded full due process of law; in particular, the right to be heard?


      13. This Court's order does not address principles enunciated in Yadon v. Southward or Loomis v. Seely cited above.


      14.  Question: Does this Court's ruling mean that it does not intend to require the defendant's counsel to comply with the rules?


      15.  Question: If my motions are not motions to dismiss or for summary judgment, is this Court requiring the Defendant's counsel to confer with me in good faith?


      16. Question: If attorneys are not required to comply with some of the rules, how can I learn in advance which rules those are?

      Wherefore, I respectfully demand that this Court clarify or issue a declaratory judgment on the above questions."


      I thought this looked like a pretty good plan for throwing it right back at the judge. If he tries to skirt the issues in his ruling this leaves the way open for me to remove him from the case. It is important that he be fair and impartial since I did not request or pay for a jury and it does not look like the mechanic wants to settle. Bear


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