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The Art of Suing a Mechanic-contempt reply

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  • Legalbear
    Message 1 of 1 , Jun 12, 2008
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      I, Barry Smith, having received a copy of the Defendant’s response to my Verified Motion For Court To Issue A Contempt Show Cause Order, reply as follows:


                  1.  The Defendant’s response can be divided into two primary categories: I. Conclusory Opinions; II. Strawman arguments and rebuttals:






                  2. For the purposes of this reply a conclusory opinion is one that is unsupported by any evidence. See Satter v. City of Littleton , 185 Colo. 90, 97, 522 P.2d 95, 98 (1974).




                  3. “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.”


                  4. “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.”


                  5. “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. “…that the Court award attorney fees to Defendant ' s due to the frivolous nature of Plaintiff’s Motion.”




                  7. By giving these conclusory opinions the Defendant’s counsel seems to cast himself as the decider/judge in this case. It is almost as if he believes that if he utters conclusory opinions in his reply the judge of this court will believe him simply because he is an attorney. If such is the case, this would seem contrary to Colo.RPC 8.4(e) Misconduct, “It is professional misconduct for a lawyer to:… imply an ability to influence improperly a judge…” From my point of view, uttering conclusory opinions is an attempt to influence improperly the judge of this court.


                  8. Colo.RPC 3.1 Meritorious Claims and Contentions: “A lawyer shall not…defend a proceeding…unless there is a basis for doing so that is not frivolous…” I see that Merriam-Webster ' s Dictionary of Law, 2001 defines frivolous as, “…lacking in any arguable basis or merit in either law or fact…” Of the above “conclusory opinions”, the only one that has any reference to law or facts is paragraph 4; and even that is a reference to a rule that has already been cited in the Plaintiff’s paperwork. According to Colo.RPC 3.3(a)(3) Candor Toward the Tribunal, a lawyer shall not knowingly “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;…” The commentary accompanying this rule reads:


      “The complexity of law often makes it difficult for a tribunal to be fully informed unless the pertinent law is presented by the lawyers in the cause. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. The adversary system contemplates that each lawyer will present and argue the existing law in the light most favorable to the client. The advocate may urge any permissible construction of the law favorable to the lawyer ' s client, without regard to the lawyer ' s professional opinion as to the likelihood that the construction will ultimately prevail.


      “Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. But having made such disclosure, the lawyer may challenge its soundness in whole or part.”


      The Defendant’s counsel makes no attempt whatsoever to support his conclusory opinions with law. If he had done even a modicum of research he would have discovered that in Gold Star Sausage Co. v. Kempf, 1982.CO.40148 <http://www.versuslaw.com> ¶ 31; 653 P.2d 397 (Colo. 1982) it was noted that the attorney representing Gold Star notarized the signature of the president of Gold Star, resulting in an invalid verification. In Gold Star the defendants relied on three older cases stating that, in analogous situations, it was improper for an attorney involved in litigation to notarize an affidavit to be used in that litigation. Frybarger v. McMillen, 15 Colo. 349, 25 P. 713 (1890); Martin v. Skehan, 2 Colo. 614 (1875); Anderson v. Sloan, 1 Colo. 33 (1867). Counsel’s failure to avoid making conclusory opinions contrary to the law such as this, while implying that he knows what the law is, might even constitute dishonesty toward the tribunal. If I was to respond to Defendant’s counsel’s conclusory opinions in kind, my response might be “does not”, “is not”, and “no it doesn’t.”






      9. In United States v. Havens, 1980.SCT.41965 <http://www.versuslaw.com> ¶ 49; 446 U.S. 620 (1980) Justices Brennan, Marshall, Stewart and Steve ns accused the majority of the Court of attempting, “… to discredit Agnello by casting a strawman as its holding, and then demolishing the pitiful scarecrow of its own creation.” Defendant’s counsel in this case appears to be attempting the same thing. From the Defendant’s response I consider the following to constitute strawman arguments:




                  10. “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 ....”


                  11. “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.”


                  12. “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. §12-55-101 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…The document was attested as required by statute.”




                  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. Nor did I ever “challenge” the affidavit of the Defendant. Nor did I ever claim that “the affidavit of Andy Bertoch is false”. What I did do was summarize in my motion what was in my compliance fax and attach the actual fax as an exhibit attempting to demonstrate my attempted compliance with my understanding of Rule 121 1-15 confer requirements. What I did do was raise the issue of Defendant’s counsel’s authority to practice law being in jeapardy because of 2nd Degree Perjury and suggesting that it might be in counsel’s best interest to correct. Defendant’s Counsel’s strawman arguments almost seem to be a magician’s distraction tactic; look over here at me beating up these strawmen and pay no attention to my 2nd Degree Perjury. Even at that, the only misconduct raised in my Verified Motion For Court To Issue A Contempt Show Cause Order is counsel’s failure to comply with Rule 121 1-15’s confer requirement. I wanted Defendant’s counsel to confer with me about motions I was considering filing. Paragraphs 3 and 4 supra are the only statements Defendant’s counsel makes that have anything to do with defending my contempt motion.




                  14. Here are the remaining comments from the Defendant’s response that in my opinion do not fall into the category of conclusory opinions or strawman arguments and rebuttals:


                  15. “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.”


                  16. “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.”


                  17. “Defendants respectfully request that the Plaintiff’s Verified Motion for Court to Issue a Contempt Show Cause Order be denied and…”


                  18. None of counsel’s statements in paragraphs 15-17 supra appear to be relevant to whether this Court issues a contempt show cause order.




                  19. In paragraph 4 supra the Defendant’s counsel is quoted as saying, “The rule cited by Plaintiff applies to opposing counsel and does not require consultation with pro se parties.”


                  20. The rule in question does appear to support counsel’s contention, however, in Yadon v. Southward, 2002.CO.0000298 <http://www.versuslaw.com>; 64 P.3d 909 (Colo.App. 2002) the statute at issue (13-20-602(3)(a) C.R.S.) required, “That the attorney has consulted a person who has expertise in the area…” to obtain a “certificate of review”. In Yadon the pro se plaintiff in the case argued that he was not subject to the requirement since he was not an attorney. About this contention the Court said, “While these provisions refer to conduct by attorneys, they must be considered in light of and in conjunction with the overall statutory scheme and the purpose thereof.” The Court went on to explain the problem with the pro se plaintiff’s position saying, “Adoption of plaintiff ' s proposed construction of the statute would require the conclusion that the General Assembly intended to authorize non-attorneys to file frivolous law suits against licensed professionals and to ignore procedures statutorily required of attorneys. Such unreasonable results are to be avoided.”


                  21. Similarly, if defense counsel’s construction of Rule 121 1-15(8) is adopted it, “…would require the conclusion that the [Colorado Supreme Court] intended to authorize non-attorneys to file frivolous [and needless motions with the courts] and to ignore procedures [required by rule] of attorneys.”


      22. The unreasonableness of such a result can be demonstrated by cases like Loomis v. Seely, 1983.CO.40193 http://www.versuslaw.com> ¶ 18; 677 P.2d 400 (Colo.App. 1983) wherein the Court said, “If a litigant, for whatever reason, presents his own case to the court, he is bound by the same rules of procedure and evidence as bind those who are admitted to practice law before the courts of this state. [cites omitted].” There are many other decisions such as this where pro ses learned on appeal that they were subject to all of the rules. It is a heavy burden but I will do my best to comply.


                  Wherefore, I respectfully contend that I have shown that the Defendant’s counsel has made no legal arguments or factual showings that should deliver him from this Court issuing a contempt show cause order and therefore this Court should issue a show cause order.



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