Opposition Brief — Vento v. Colorado National Bank
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— —— ee
Suprema Cowt, U.S
FILED
| SEP 13 1599
No. 99-255 ) OF EOF THE CLERN
In The
Supreme Court of the United States
¢
JOSEPH A VENTO,
Petitioner,
U.S. BANK, f/k/a COLORADO NATIONAL BANK;
C. JEAN STEWART; DAVID W. STARK;
AND JACK M. MERRITTS,
Respondents.
+
On Petition For Writ Of Certiorari To The
United States Court Of Appeals For The Tenth Circuit
+
OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI
+
KENNETH B. SiecGet*
BARBARA Welt GALL
SHERMAN & Howarp L.L.C.
633 Seventeenth Street, Suite 3000
Denver, Colorado 80202
(303) 297-2900
Counsel for Respondents U.S. Bank,
f/k/a Colorado National Bank
and David W. Stark
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
TABLE OF CONTENTS
Page
COUNTER-STATEMENT OF THE CASE............ 1
Statement of Facts and Procedural History....... 4
ARGUMENT AGAINST GRANTING CERTIORARI... 9
A. There Is No Basis For Granting The Writ Of
Certiorari Under Rule 10, As There Is No Con-
flict Between Federal Appellate Courts On An
Important Question Of Federal Law ......... 9
1. Petitioner Failed To Raise The “Height-
ened Pleading Standard” Argument
Below, And May Not Raise It For The
First Time Before This Court........... 10
2. There Is No Inconsistency Between Fed-
eral Appellate Courts On The Issue Of
The Heightened Pleading Standard..... 11
B. The Court Of Appeals For The Tenth Circuit
Correctly Ruled That The District Court
Lacked Subject Matter Jurisdiction Over An
Appeal Of A State Court Ruling And Properly
Dismissed Petitioner’s Complaint .........--. 16
C. Judge Stewart Had The Authority And Juris-
diction To Enter The Interpleader Order ..... 18
D. Petitioner Failed To State Allegations Sufficient
To Sustain A § 1983 Claim Against CNB Or Mr.
DO, on on.cnbe ch ccekendehss vonage cexemnnaee és 20
1. Mr. Vento Cannot Demonstrate That
CNB Or Mr. Stark Acted “Under Color
TN i oe en ee da abie we 21
TABLE OF CONTENTS -— Continued
Pa ge
2. CNB And Mr. Stark’s Participation In
The Interpleader Action Cannot Form
The Basis Of A § 1983 Action ......... 23
E. Petitioner Has Not Been Denied Due Process
Because He Has Regularly Invoked The Juris-
diction Of Colorado State Courts ............ 25
CONCLUBGUIN ccsccsccicsuscenesdbeuseustisendunes 27
TABLE OF AUTHORITIES
Page
CASES
Anderson v. State of Colorado, 793 F.2d 262 (10th Cir.
NUNN EE Te ee adeno tented ooee ch bo coe ne ances. 18
Arrington v. Dickerson, 915 F. Supp. 1503 (M.D.
ied ae evi ois 5 wnss csawkcencee ccc .c. 12
Bottone v. Lindsley, 170 F.2d 705 (10th Cir. 1948)
cert. denied, 336 U.S. 944, 69 S. Ct. 810 (1949) ..25, 26
Boulter v. Jordan, 733 F Supp. 85 (D. Colo. 1990)... .21, 22
Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991)...... 13
Brown v. Chaffee, 612 F.2d 497 (10th Cir. og SETUEED
District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 103 S. Ct. 1303, 75 L. Ed.2d 206 (1983) .... 16
Dubinka v. Judges of Superior Court, 23 F.3d 218 (9th
iv bi Sane wn 660000406 ov h6e%oeceegcnce,, 16
Feliciano v. DuBois, 846 F. Supp. 1033 (D. Mass.
TT ee Pia 0g nd 6 icp di Dh bie nee Genki... 13
G.D. Searle & Co. v. Cohn, 455 US. 404, 102 S. Ct.
1137, 71 L. Ed.2d 250 (1982)...................... 10
Gentner v. Shulman, 55 F.3d 87 (2d Cir. 1995)........ 16
Hagerty v. Succession of Clement, 749 F.2d 217 (Sth
Cir. 1984), cert. denied, 474 U.S. 968, 106 S. Ct.
333, 88 L. Ed.2d 317 (1988)....................... 17
Harris v. District Bd. of Trustees of Polk Community
College, 981 F. Supp. 1459 (M_D. Fla. ne 12
Hill v. McClellan, 490 F.2d 859 (5th Cir. og PPR ESE 24
Housley v. United States, 35 F.3d 400 (9th Cir.
RE Sieh eke Dine s eh? doccy ss 04. oa: . 43 13, 14
iV
TABLE OF AUTHORITIES - Continued
Page
Hunt v. Sparkman, 17 F.3d 1263 (10th Cir. 1994)...... 20
Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996)....... 13, 14
Kiowa Indian Tribe v. Hoover, 150 F.3d 1163 (10th
Gt ED 6a. 6 6 cob ddaae ahs side eabe cee eekee ees 8
Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163, 113 S. Ct.
1160, 122 L. Ed.2d 517 (1993).......... 11, 12, 13, 14
Lee v. Town of Estes Park, 820 F.2d 1112 (10th Cir.
PO Pee keus veccéckaeee sd odeticdescueteeeecloscsones 21
Lindley v. Amoco Prod. Co., 639 F.2d 671 (10th Cir.
SS cwdccndeks becsuvn ec eurerdnuteviiaeienuvces 23
Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) ..21, 24
McCain v. Scott, 9 F. Supp.2d 1365 (N.D. Ga. 1998) .... 12
Monell v. Department of Social Services of the City of
New York, 436 U.S. 658, 98 S. Ct. 2018, 56
ec ER EE GENE be cvervevavvesvecrviseneredeses 15
Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473 (1961) ....15
Musselwhite v. State Bar of Texas, 32 F.3d 942 (5th
Cir. 1994), cert. denied, 515 U.S. 1103, 115 S. Ct.
yr Me: ee UE | pre rer rT errrce 16
Neely v. Martin K. Eby Const. Co., 386 U.S. 317, 87
S. Ct. 1072, 18 L. Ed.2d 75 (1967), rehearing
denied 386 U.S. 1027, 87 S. Ct. 1366, 18 L. Ed.2d
ge. Se ee eee ye oe rr eer ery 10
Norton v. Liddel, 620 F.2d 1375 (10th Cir. 1980) ...... 21
Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445,
fe & fr ee mre 2's 23
TABLE OF AUTHORITIES ~ Continued
Page
Ritter v. Ross, 992 F.2d 750 (7th Cir. 1993), cert.
denied, 510 U.S. 1046, 114 S. Ct. 694, 126 L. Ed.2d
ee MARR nat Oy ue haat RT! yt 17
Rooker v. Fidelity Trust Co., 263 U.S. 413, 44S. Ct.
149, 68 L. Ed.2d 362 (1923).......... yeaa as 16
Sexton v. Barry, 233 F.2d 220 (6th Cir. 1956), cert
denied, 352 U.S. 870, 77 S. Ct. 94 (1956) 25
Sooner Products Co. v. McBride, 708 F.2d 510 (10th
Re Be 26¥i ded bderet edie ee 22
Sparks v. Duval County Ranch Co., 604 F.2d 976 (5th
Cir. 1979), affirmed, 449 U.S. 24, 101 S. Ct. 183, 66
kee BG.2G 185 (1960)... 2. cccces ne i 24
Torres v. First State Bank, 588 F.2d 1322 (10th Cir.
RE As ire De PI AG RN cate PLE al) cee Yin 23, 24
Williams v. Texaco, Inc., 165 B.R. 662 (D.N.M. 1994) .... 25
STATUTES
We Bees PDs es co ob abet he eel passim
Colo. Rev. Stat. 13-9-103(5)(1999).................... 18
RULEs
ae Rs a ee Se eer ro ren ri hte ee )
| ee ees ee 22
Fed. Rules of Evidence, Rule 201 ................... 27
Fed. Rules of Evidence, Rule 803(8)................. 27
Colo. Rules of Civil Procedure, Rule 1........... 19, 20
Colo. Rules of Civil Procedure, Rule 22.......... 19, 20
Colo. Rules of Civil Procedure, Rule 82............. 19
OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
U.S. Bank, formerly known as Colorado National Bank
(“CNB"),’ and David W. Stark, Respondents, respectfully
request that the Court deny the Petition for Writ of Cer-
tiorari to the United States Court of Appeals for the Tenth
Circuit filed by the petitioner Joseph A. Vento.
+
COUNTER-STATEMENT OF THE CASE
Mr. Vento asks this Court to review a decision of the
United States Court of Appeals for the Tenth Circuit
affirming the dismissal of a suit brought in federal court
by Mr. Vento. Petitioner had sued a party, attorneys, and
the presiding judge in an interpleader action in the Pro-
bate Court for the City and County of Denver, Colorado
(“Denver Probate Court”), alleging that they had con-
spired to deprive him of his property and the right to
litigate without due process of law. Although Petitioner
has attempted to cast this as a civil rights action, he in
fact has sought both to appeal the decision of the Denver
Probate Court in the U.S. District Court for the District of
Colorado in violation of the Rooker-Feldman doctrine, and
to obtain double recovery of a judgment he has already
collected from CNB.
Petitioner's “Statement of Facts” omits details of
his many attempts to overturn the order of the Denver
' CNB has now been acquired by U.S. Bancorp and is
currently known as U.S. Bank. For purposes of this appeal, all
references to the bank will remain “CNB.”
Probate Court dated January 3, 1996 (“Interpleader
Order,” Petition for Writ of Certiorari [“Petition”], App. B-2,
pp. 30-32), and to obtain double recovery of the judgment
awarded to him by the District Court for Pueblo County,
Colorado (“Pueblo District Court”). Petitioner has stead-
fastly refused to accept the ruling of the Denver Probate
Court that CNB’s payment of the amount of Mr. Vento’s
judgment into the registry of the Denver Probate Court
—~durmg a dispute over the proceeds of the judgment
a relieved CNB of further responsibility for the judgment.
Indeed, Mr. Vento has attempted unsuccessfully to over-
turn the Interpleader Order in six separate requests to the
Denver Probate Court,? and an appeal to each of the
2 The following pleadings are listed in the Excerpts from the
Certified Record of Denver Probate Court, Appendix A at pp. 1-4:
(1) Motion to Change Venue, filed January 8, 1996,
denied April 26, 1996;
(2) Motion to Vacate, filed January 8, 1996, denied
April 26, 1996);
(3) Renewed Motion to Change Venue, filed January
24, 1996, denied April 26, 1996;
(4) Motion for Relief from January 3 Order on
Interpleader, filed February 8, 1996, denied April
26, 1996;
(5) Objection by Defendant Joseph A. Vento to CNB
Being Discharged From All Further Liability and
Dismissed From This Case; Affirmatively for a
Motion for an Order to Dismiss this Case, or
Alternatively for an Order Vacating or
Dissolving the Preliminary or Temporary
Injunction, filed October 18, 1996, denied
December 13, 1996; and
+ oe oR eel
a sm
Colorado Court of Appeals and Colorado Supreme
Court.? He has unsuccessfully sought to hold CNB in
contempt for allegedly failing to pay the amount of the
judgment*, and has commenced two separate actions
attempting to recover damages equal the amount of the
judgment®, all after CNB paid the amount of the judg-
ment into the registry of the Denver Probate Court.
(6) Amended Answer of Joseph A. Vento (alleging
lack of due process as an affirmative defense),
filed September 25, 1996.
* Mr. Vento applied to the Colorado Supreme Court for
Writs of Prohibition and Mandamus against the Denver Probate
Court on June 20, 1996, with the petition being denied one week
later (Appendix B at pp. 5-6). On July 26, 1996, Mr. Vento
appealed the April 26, 1996 Denver Probate Court Order to the
Colorado Court of Appeals, which dismissed the appeal with
prejudice on August 9, 1996 (Appendix C at p. 8).
4 On April 26, 1996, in case no. 87 CV 867, Pueblo District
Court Judge O’Rourke denied Mr. Vento’s request that she hold
CNB in contempt for CNB’s alleged failure to pay the judgments
in that action, and ruled that the jurisdiction of the Denver
Probate Court was a question that only the Denver Probate
Court could decide (Appendix D at pp. 10-13). Mr. Vento
appealed this decision to the Colorado Court of Appeals which
affirmed the decision. Vento v. Colorado National Bank, 1999 WL
46924 (Colo. App. 1999).
° In addition to the present action, Mr. Vento brought case
no. 97 CV 31 against CNB in the Pueblo District Court, claiming
that CNB had breached the Letter of Credit it posted as a
supersedeas bond by filing the action in the Denver Probate
Court. The Pueblo District Court granted summary judgment in
favor of CNB in that case on April 1, 1997 (Appendix E at pp.
14-20). Mr. Vento appealed tnat decision to the Colorado Court
Statement of Facts and Procedural History
In 1968, the Joseph A. Vento Trust, the Dominic A.
Vento Trust, the Irene C. Coulter Trust and the Cecilia
DeFellippie Trust became co-owners of an undivided one-
quarter interest in coal mining property in Fremont
County, Colorado. CNB and its predecessors (the First
National Bank of Pueblo, which became Colorado
National Bank-Pueblo, which became CNB) acted as the
sole Trustee of each of the four trusts which owned the
coal mining property. (Affidavit of David Stark at { 2,
Appendix N at p. 38).®
On or about September 8, 1987, Mr. Vento and Cecilia
DeFellippie (“Ms. DeFellippie”) filed suit in Pueblo Dis-
trict Court against CNB’s predecessor asserting breach of
fiduciary duty in managing and administering their
trusts and the Trust property, styled Joseph A. Vento and
Cecilia DeFellippie v. Colorado Nat'l Bank-Pueblo, Case No.
87CV867 (“the 1987 Action”). CNB was represented by
Respondent Mr. Stark. On June 15, 1993, the plaintiffs in
the 1987 Action each won a judgment against CNB in the
amount of $931,962.50, plus costs and interest at 8% per
annum from March 22, 1985 (“the Judgments”). The total
judgments, including pre- and post-judgment interest
was approximately $4,347,307.48. (Affidavit of David
Stark at ¥ 3, Appendix N at p. 39).
of Appeals, which affirmed Judge Vigna’s judgment on April 23,
1998 (Appendix F at pp. 21-24). A petition for certiorari to the
Colorado Supreme Court was denied on December 7, 1998.
(Appendix G at pp. 25-26).
6 Mr. Stark’s affidavit was part of the record in the appeal
below.
CNB unsuccessfully appealed the Judgments to the
Colorado Court of Appeals, posting a supersedeas bond
in the form of a letter of credit in the amount of $4 million
(“the Letter of Credit”). The Colorado Supreme Court
denied CNB’s petition for certiorari on December 11,
1995. (Affidavit of David Stark at | 3, Appendix N at p. 39)
Meanwhile, in June 1994, the beneficiaries of the
Irene C. Coulter Trust and the Dominic A. Vento Trust
sued CNB and Mr. Vento in the District Court for the City
and County of Denver, Colorado, in a case styled Richard
G. Vento, Angelina Vento, Marihelen Vento, and Irene C.
Coulter v. Colorado National Bank-Pueblo, Joseph A. Vento,
and John Does A-Z, Case No. 94 CV 2890 (the “1994
Action”), alleging, among other claims, breach of fiduci-
ary duty and negligence, because they were not included
in or advised of the 1987 Action. The beneficiaries also
filed an action against Mr. Stark, his law firm, and other
attorneys who defended CNB in the 1987 Action, based
on the same allegations. CNB settled with the plaintiffs in
the 1994 Action, and Mr. Vento thereafter prevailed on
the claims against him following a jury trial in April 1996.
(Affidavit of David Stark at { 4, Appendix N at p. 39)
While CNB’s appeal of the 1987 Action was pending,
serious disputes arose among members of the Vento fam-
ily concerning the division of the proceeds of the Judg-
ments payable to Mr. Vento and Ms. DeFellippie.
Following the denial of CNB’s petition for certiorari on
December 11, 1995, CNB received conflicting demands
from the beneficiaries of the Irene C. Coulter and
Dominic A. Vento Trusts, as well as from attorneys for
Ms. Saunders and Mr. Kettelkamp (Mr. Vento’s attorney
in the 1997 Action), all claiming some interest in the
proceeds of the Judgments secured by the Letter of
Credit. (Affidavit of David Stark at [ 6, Appendix N at p.
40). Because these claims might have exposed CNB to
multiple liability, CNB invoked the provisions of Colo. R.
Civ. P. 22 regarding interpleader.
On December 29, 1995, CNB filed an action in the
Denver Probate Court, styled Colorado National Bank v.
Joseph A. Vento, Linda Saunders, Personal Representative of
the Estate of Cecilia DeFellippie, Irene Coulter, Richard G.
Vento, Angelina Vento, Marihelen Vento, and Wesley C. Ket-
telkamp, Jr., Case No. 95PR2379 (“the Interpleader
Action”) as a means of resolving the :ompeting claims.
On January 3, 1996, Judge C. Jean Stewart (a respon-
dent in this appeal), presiding over the Denver Probate
Court, entered the Interpleader Order directing CNB to
transfer approximately $4.4 million to a bank account in
the name of the Denver Probate Court f/b/a Vento Bene-
ficiaries, representing the amount of the Judgments,
including interest accrued through January 3, 1996. The
Interpleader Order provided that “upon transfer of the
Judgment amount . . . CNB shall be considered to have
satisfied the Judgment. .. . ” CNB deposited that sum,
disclaiming any further interest in the funds. The Inter-
pleader Order stated in pertinent part:
D. Pursuant to C.R.C.P. 22 the Defendants, and
each of them, are restrained and enjoined from
instituting or prosecuting in any court of the
state any action against CNB, wherein the
Defendants or any of them, in any manner, seek
to recover the amount of the Judgment or any
part thereof, to execute on the Judgment, . . . to
execute on any asset of CNB, or to recover any
damages for failure of CNB to deliver funds to
any of the Defendants to satisfy the Judgment.
(Petition for Writ of Certiorari [“Petition”], App. B-2, pp.
30-32).
Mr. Vento has tried unsuccessfully to appeal and
overturn the Interpleader Order many times, including
Six separate requests to the Denver Probate Court (see
footnote 2, supra). Most of these motions were considered
and denied on April 26, 1996 by a second judge in the
Interpleader Action after Judge Stewart recused herself at
Mr. Vento’s request. Mr. Vento’s appeals to the Colorado
Supreme Court and Colorado Court of Appeals were
likewise dismissed (see footnote 3, supra).
In sum, CNB satisfied the Judgments by depositing
$4.4 million into a court-supervised bank account, pur-
suant to the Interpleader Order. The defendants in the
Interpleader Action, which includes Mr. Vento, were pro-
hibited by the Interpleader Order from suing CNB for
damages by reason of CNB’s failure to pay the amount of
the Judgments directly to Mr. Vento and the heirs of Ms.
DeFellippie. The present action is Mr. Vento’s latest
attempt to attack the validity of the Interpleader Order.
Mr. Vento has now turned to the federal court system,
asserting claims under 42 U.S.C. § 1983 against Judge
Stewart, CNB, and attorneys who filed and participated
in the Interpleader Action.
In his discussion of the district court’s opinion, Mr.
Vento omitted the final reason for the district court's
findings, which took into account the procedural history
set out above:
The complaint appears to be nothing more than
an attempt to relitigate issues already litigated
in the state courts. This lawsuit meets the stan-
dards of meritless, frivolous, and vexatious liti-
gation under Fed. R. Civ. P. 11 and 42 U.S.C.
§ 1988.
(Petition, App. B-1, page 28.)
Mr. Vento likewise omitted the third reason the Court
of Appeals for the Tenth Circuit affirmed the District
Court’s decision:
[Petitioner’s] arguments to this court demon-
strate only a disagreement with the state court’s
decisions. Therefore, we invoke the Rooker-Feld-
man doctrine, which prohibits federal district
courts from hearing federal claims whose only
purpose is to obtain review of state court judg-
ments... ”
(Petition for Certiorari, App. A, pp. 23-24 (citing Kiowa
Indian Tribe v. Hoover, 150 F.3d 1163, 1165 (10th Cir.
1998)).)
Incredibly, Mr. Vento continues to improperly use the
federal court system to contest the Interpleader Order,
despite the fact that he was awarded approximately $2.75
million in the Interpleader Action on June 7, 1997, and
collected the funds from the registry of the Denver Pro-
bate Court on October 15, 1997. ( Certified Copy of the
Registry of Court in Case No. 95 PR 2379, Appendix H p.
27).
ARGUMENT AGAINST GRANTING CERTIORARI
A. There Is No Basis For Granting The Writ Of Cer-
tiorari Under Rule 10, As There Is No Conflict
Between Federal Appellate Courts On An Impor-
tant Question Of Federal Law.
Review on a writ of certiorari is not a matter of right,
but of judicial discretion, and is not granted lightly. A
petition for a writ of certiorari will be granted only for
“compelling reasons.” These include a conflict between
the circuit courts of appeals or between a circuit court of
appeals and a state court of last resort “on the same
important matter,” a conflict between state courts of last
resort on a federal question, or a decision by a state court
of last resort or a federal court of appeals on “an impor-
tant question of federal law ” that has not been settled by
this Court. S. Ct. R. Civ. P. 10.
The centerpiece of Petitioner’s Petition is his claim
that the Court of Appeals for the Tenth Circuit improp-
erly applied a “heightened pleading standard” to his
complaint. Petitioner argues that the Court of Appeals for
the Tenth Circuit’s application of “heightened pleading
standards” to § 1983 actions “is inconsistent with the
rulings of other United States Courts of Appeal.” (Petition
at 6.) Petitioner, however, never raised this claim before
the court of appeals, and cannot raise it now.
be
10
1. Petitioner Failed To Raise The “Heightened
Pleading Standard” Argument Below, And May
Not Raise It For The First Time Before This
Court.
As a preliminary matter, the Court may not consider
Petitioner’s arguments regarding the “heightened plead-
ing standard,” because the arguments were not raised in
the appeal below. Petitioner made four arguments in his
briefs before the Court of Appeals for the Tenth Circuit:
first, the complaint stated a claim for relief and should
not have been dismissed; second, Judge Stewart did not
have jurisdiction to enter the Interpleader Order and
declare the Judgments satisfied; third, the District Court
was wrong in finding no conspiracy to violate Peti-
tioner’s rights among the various attorneys, CNB and
Judge Stewart; and fourth, Petitioner stated a claim for
relief under § 1983 because he was deprived of property
through state action without substantive due process.
Petitioner never raised any issue in the Court of Appeals
for the Tenth Circuit regarding the “heightened pleading
standard” which forms the centerpiece of his Petition
before this Court. See Appellant’s Opening Brief in the
Court of Appeals for the Tenth Circuit (“Opening Brief”)
(Appendix O at pp. 44-85).
This Court has stated its “normal policy of not con-
sidering issues which have not been presented to the
Court of Appeals and which are not properly presented
for review here.” Neely v. Martin K. Eby Const. Co., 386
U.S. 317, 87 S. Ct. 1072, 1081, 18 L. Ed.2d 75 (1967),
rehearing denied, 386 U.S. 1027, 87 S. Ct. 1366, 18 L. Ed.2d
471 (1967). See also G.D. Searle & Co. v. Cohn, 455 U.S. 404,
102 S. Ct. 1137, 1144, 71 L. Ed.2d 250 (1982) (“In this
11
Court, petitioner has attempted to put forward a new due
process argument . . . Because petitioner did not present
this argument to the Court of Appeals, we do not address
it.”). Because Mr. Vento did not properly raise the
“heightened pleading standard” argument before the
Court of Appeals for the Tenth Circuit, the Court may not
consider it now.
2. There Is No Inconsistency Between Federal
Appellate Courts On The Issue Of The Height-
ened Pleading Standard.
To support his untimely claim, Petitioner cites two
cases from the Court of Appeals for the Ninth Circuit and
this Court's decision in Leatherman v. Tarrant County Nar-
cotics Intelligence and Coordination Unit, 507 US. 163, 113
S. Ct. 1160, 122 L. Ed.2d 517 (1993). Each of these cases is
distinguishable from the present action. There is no
inconsistency, apparent or otherwise, between the Court
of Appeals for the Tenth Circuit's ruling in the decision
below and other cases involving pleading standards for
§ 1983 claims.
In Leatherman, homeowners in Texas brought a civil
rights claim under 42 U.S.C. § 1983 against local law
enforcement officers acting in their official Capacity, as
well as the county and two municipal corporations that
employed the officers. The homeowners maintained that
the officers had violated their Fourth Amendment protec-
tions against unreasonable searches and seizures, and
based liability against the municipalities on the failure of
such entities to adequately train the officers. Id. at 165.
12
Their complaint was dismissed by the United States Dis-
trict Court for the Northern District of Texas for failure to
meet the “heightened pleading standard” for municipal
liability, and the Court of Appeals for the Fifth Circuit
affirmed. This Court determined that courts could not
apply a heightened pleading standard to § 1983 claims
against municipal corporations. Id. at 167-168.
4
Petitioner reads the decision in Leatherman to “sug-
gest[ ] strongly that any heightened pleading standard is
impossible to square with the Federal Rules of Civil Pro-
cedure and is therefore invalid and is not permissible.”
(Petition at 7.) This is an utterly inaccurate reading of the
case. First, the Court in Leatherman acknowledged that
Rule 9(b) of the Federal Rules of Civil Procedure requires
a heightened pleading standard in certain circumstances,
such as when the plaintiff alleges fraud or mistake. 507
U.S. at 168. Second, and more importantly, the Court
specifically limited its holding to § 1983 claims brought
against municipalities. The Court explicitly discussed the
difference between a municipal government and its offi-
cials, and stated that it had “no occasion to consider
whether our qualified immunity jurisprudence would
require a heightened pleading in cases involving individ-
ual government officials.” Id. at 167. Lower courts have
seized upon this phrase to limit the Leatherman holding
and require or permit heightened pleading for cases
brought against government officials in an individual
capacity. See, e.g., McCain v. Scott, 9 F. Supp.2d 1365, 1369
(N.D. Ga. 1998); Harris v. District Bd. of Trustees of Polk
Community College, 981 F. Supp. 1459, 1461-62 (M.D. Fla.
1997); Arrington v. Dickerson, 915 F. Supp. 1503, 1512-1513
13
(M.D. Ala. 1996); Feliciano v. DuBois, 846 F. Supp. 1033,
1042 (D. Mass. 1994).
Petitioner cites two decisions of the Court of Appeals
for the Ninth Circuit to support his contention that the
Leatherman doctrine applies to all § 1983 claims, regard-
less of whether the defendant is an individual or a munic-
ipality. Citing Housley v. United States, 35 F.3d 400 (9th Cir.
1994) and Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996).
Petitioner concludes without further explanation that
“these courts have adopted the view that Leatherman
ought to mark the absolute end of the ‘heightened plead-
ing’ requirement.” (Petition at 6-7.) Once again, a careful
examination of the cases demonstrates that Petitioner’s
reading is untenable.
Housley involved a pro se plaintiff who accused fed-
eral agents of an illegal search and seizure. The court of
appeals held that a heightened pleading standard was
inappropriate because the plaintiff did not allege subjec-
tive intent on the part of the defendants. The court of
appeals distinguished the facts of Housley with those of
Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991) (Branch 1).
In Branch I, the Court of Appeals for the Ninth Circuit
held “that when subjective intent is an element of the
constitutional tort action and qualified immunity is
plead, the plaintiff is subject to a heightened pleading
standard which requires nonconclusory allegations set-
ting forth specific evidence of unlawful intent.” Housley,
35 F.3d at 401. Because the Branch I decision remains good
14
law,’ Housley does nothing to suggest the “absolute end”
of the heightened pleading requirement, as Petitioner
claims. Indeed, the distinction made in Housley supports
the position of CNB and its co-defendants, since Peti-
tioner is alleging subjective intent of the defendants to
conspire against him.
Nor is Kimes particularly supportive of Petitioner’s
core assertion that Leatherman should mark the “absolute
end” of the heightened pleading requirement. The Court
of Appeals for the Ninth Circuit in Kimes did not even
mention Leatherman. In Kimes, a case procedurally very
similar to the present case, the plaintiff sued a state judge
and two attorneys under § 1983, alleging conspiracy to
overturn a verdict setting aside a decedent’s will. The
court of appeals rejected any claim against the judge as
barred by judicial immunity. See Kimes, 84 F.3d at 1126.
The attorneys put forth two arguments in their defense.
First, they claimed litigation immunity under the Califor-
nia Rules of Civil Procedure. Second, they argued that
Kimes’ pleadings were insufficient under Rule 8(a) of the
Federal Rules of Civil Procedure. The Court spent the
majority of its time addressing the attorney immunity
issue, only mentioning the pleadings argument at the
very end of the opinion. Even then the pleadings discus-
sion seems almost an afterthought, clearly secondary to
the more substantial discussion of attorney liability. Id. at
1129. While the bare text of Kimes seems to require only
regular pleading for § 1983 claims, the context of the
7 The Court of Appeals for the Ninth Circuit reaffirmed the
Branch I doctrine after Leatherman was decided. See Housley, 35
F.3d at 401 n. 3.
nea
ea
ae
15
discussion and the court of appeals’ failure to even men-
tion, much less reject, heightened pleading significantly
weakens its persuasive value.
Finally, Petitioner cites Monroe v. Pape, 365 U.S. 167,
171, 81 S. Ct. 473, 476 (1961)8 for the Proposition that the
“[a]llegation of facts constituting a deprivation under
color of state authority of a right guaranteed by the
Fourteenth Amendment satisfies to that extent the
requirement” of 42 U.S.C. § 1983. This may be the case,
but both the quote and the general discussion in Monroe
relate to the requirements to allege a cause of action
under the statute, not the requirements to plead with
sufficient specificity. The Court in Monroe was determin-
ing whether the plaintiff’s claims were theoretically
actionable, not whether they were well-pleaded. Put
another way, the passage from Monroe discusses only
what can be alleged under § 1983, not how it is to be
alleged.
Because there is no conflict between the Courts of
Appeals for the Ninth and Tenth Circuits, and because
Petitioner has failed to timely raise this issue, the Petition
for Writ of Certiorari must be denied.
8 Monroe was overruled by Monell v. Department of Social
Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56
L. Ed.2d 611 (1978) on grounds related to municipal liability
under § 1983.
16
B. The Court Of Appeals For The Tenth Circuit Cor-
rectly Ruled That The District Court Lacked Subject
Matter Jurisdiction Over An Appeal Of A State
Court Ruling And Properly Dismissed Petitioner’s
Complaint.
Federal district courts do not have appellate jurisdic-
tion over state court decisions. Rooker v. Fidelity Trust Co.,
263 U.S. 413, 44 S. Ct. 149, 150, 68 L. Ed.2d 362 (1923);
District of Columbia Court of Appeals v. Feldman, 460 U.S.
462, 103 S. Ct. 1303, 1315, 75 L. Ed.2d 206 (1983). This has
become known as the Rooker-Feldman doctrine. See, e.g.,
Musselwhite v. State Bar of Texas, 32 F.3d 942, 946 n. 11 (5th
Cir. 1994), cert. denied, 515 U.S. 1103, 115 S. Ct. 2248, 132
L. Ed.2d 256 (1995). The Rooker-Feldman doctrine pre-
cludes Petitioner from contesting the Interpleader Order
entered by the Denver Probate Court in the federal
courts. “The reach of the Rooker-Feldman doctrine is sub-
stantial. It is not limited to the decisions coming from the
state’s highest court.” Dubinka v. Judges of Superior Court,
23 F.3d 218, 221 (9th Cir. 1994). The doctrine applies to
both interlocutory and final state court decisions. Gentner
v. Shulman, 55 F.3d 87, 89 (2d Cir. 1995).
The present action is precisely the type of action the
Rooker-Feldman doctrine was designed to prevent. All of
Petitioner’s claims are based on the alleged impropriety
of the proceedings and rulings in the Interpleader Action,
and the relief which Petitioner seeks is, in effect, a rever-
sal of the Interpleader Order. The Interpleader Order
allowed CNB to satisfy the Judgments by depositing the
full amount of the Judgments into the registry of the
Denver Probate Court. The Interpleader Order also pro-
hibited Petitioner from “instituting or prosecuting in any
es
17
court of this state any action against CNB .. . to recover
the amount of the Judgment or any part thereof... . ”
(Petition, App. B-2, pp. 31-32.) As a basis for this action,
Petitioner claims that the proceedings in the Interpleader
Action deprived him “of his property and rights to prop-
erty without appropriate process, that is, the right to
execute and collect on the judgment granted him by the
Pueblo District Court on June 15, 1993.” (Petition, App.
D-1, pp. 52-53.) It is clear that this action is nothing more
than an attempt to overturn the state court’s decision in
the Interpleader Action and recover damages against
CNB, and as such, it is prohibited.
Further, the fact that Petitioner has framed his allega-
tions in the context of a § 1983 suit did not provide the
district court with subject matter jurisdiction, because
“[a] plaintiff may not seek a reversal of a state court
judgment simply by casting the complaint in the form of
a civil rights action.” Ritter v. Ross, 992 F.2d 750, 754 (7th
Cir. 1993), cert. denied, 510 U.S. 1046, 114 S. Ct. 694, 126
L. Ed.2d 66 (1994) (quoting Hagerty v. Succession of Clem-
ent, 749 F.2d 217, 220 (5th Cir. 1984), cert. denied, 474 U.S.
968, 106 S. Ct. 333, 88 L. Ed.2d 317 (1988)). Moreover,
Petitioner has already raised these constitutional claims
in the Interpleader Action itself, with no success.? “Where
® The following pleadings are listed in the Excerpts from
the Certified Record of Denver Probate Court, Appendix A at pp.
1-4: Mr. Vento’s Motion for Court to Reconsider and Set Aside
its Order for Contempt and the Contempt Citation; Amendment
of Answer by Joseph A. Vento; Objection by Defendant Joseph
A. Vento to CNB Being Discharged From All Further Liability
and Dismissed From This Case; Affirmatively for a Motion for
an Order to Dismiss This Case, or, Alternatively, for an Order
18
a constitutional issue could have been reviewed on direct
appeal by the state appellate courts, a litigant may not
seek to reverse or modify the state court judgment by
bringing a constitutional claim under 42 U.S.C. § 1983.”
Anderson v. State of Colorado, 793 F.2d 262, 263 (10th Cir.
1986).
C. Judge Stewart Had The Authority And Jurisdiction
To Enter The Interpleader Order.
Petitioner next argues that Judge Stewart lacked the
jurisdiction to enter the Interpleader Order, and that it
was error for the Court of Appeals for the Tenth Circuit
to hold otherwise. This is simply another attempt to have
a federal court review the decision of a state court, and is
impermissible under the Rooker-Feldman doctrine. In
addition, Petitioner has not identified any conflicting
decisions of the federal circuit courts of appeals, or of
state courts of last resort, regarding this issue. Nor has
Petitioner articulated any other reason why this Court
should consider this issue under its rules of procedure.
Should the Court wish to consider this argument, how-
ever, the Court will find Petitioner’s position to be insup-
portable.
The Colorado legislature has vested the Denver Pro-
bate Court with jurisdiction “to determine every legal
and equitable question arising out of or in connection with
express trusts.” Colo. Rev. Stat. § 13-9-103(5) (emphasis
added). Petitioner’s argument that this Court should
Vacating or Dissolving the Preliminary or Temporary
Injunction.
ee a ell, 8a
ee ee a oe
ee a ee
19
overturn the Court of Appeals for the Tenth Circuit's
ruling on the jurisdiction issue largely consists of his
denial that the Interpleader Action “arose out of or was
connected with” anything having to do with an express
trust. For example, Petitioner states in his Opening Brief
that “[n]o money owed as a result of the Pueblo District
Court judgment belonged to an express trust.” \.ippendix
O at p. 71.) However, the proceeds from the Judgment
arose from Petitioner’s claims that CNB had mismanaged
the Joseph A. Vento Trust and the trust property. In
addition, CNB initiated the Interpleader Action because
of competing claims from other trusts which were co-
owners of the Vento trust property, demonstrating that
the Interpleader Action was connected with express trusts.
In that light, the Denver Probate Court had jurisdiction
under Colo. Rev. Stat. § 13-9-103(5) to address in the
Interpleader Action the legal questions associated with
the $4.4 million Judgment.
Petitioner further asserts that Colo. R. Civ. P. 22 pre-
vents the Denver Probate Court from maintaining juris-
diction over an interpleader action because the rule
provides that a district court may enter its order in any
civil interpleader action. Consequently, according to Peti-
tioner, the Denver Probate Court could not have ruled on
such a matter because it is not a district court. (Petition at
p. 13.) But Petitioner ignores Colo. R. Civ. P. 1, which
states that the rules of civil procedure are applicable to
probate courts in the City and County of Denver. Thus,
the Rule 22 interpleader procedures apply to the Denver
Probate Court.
Petitioner argues, however, that Colo. R. Civ. P. 82
provides that the rules “shall not be construed to extend
20
the jurisdiction of any court,” and thus Rule 22 cannot be
expanded to encompass probate courts. (Opening Brief at
25, Appendix O at p. 75). But, in light of Rule 1, there is no
extension of jurisdiction of the Denver Probate Court
beyond what the legislature and the Rules already grant.
Consequently, the Denver Probate Court acted within its
jurisdiction when it heard the Interpleader Action on
January 3, 1996 and subsequently entered its Interpleader
Order.
D. Petitioner Failed To State Allegations Sufficient To
Sustain A § 1983 Claim Against CNB Or Mr. Stark.
In his Complaint, Petitioner claimed that he was
deprived of his constitutional rights under 42 U.S.C.
§ 1983 by (1) the initiation of the Interpleader Action by
CNB; (2) the Denver Probate Court’s order allowing CNB
to satisfy the Judgments by depositing the $4.4 million
into the registry of the court; and, (3) the manner in
which the January 3, 1996 hearing, at which he was
represented by counsel, was conducted. (Petition, App.
D-1, pp. 47-52 JY 21-24, 26.) The Court of Appeals for the
Tenth Circuit ruled that Petitioner’s “[c]onclusory allega-
tions of conspiracy are insufficient to state a valid § 1983
claim.” (citing Hunt v. Sparkman, 17 F.3d 1263, 1266 (10th
Cir. 1994)) (Petition, App. A, p. 23.) Again, there exists no
basis under the Supreme Court's rules of procedure for
the Court to consider this issue on a Petition for Writ of
Certiorari, nor has Petitioner even attempted to articulate
such a basis.
To state a claim for relief under § 1983, Mr. Vento
must show that the alleged wrongful conduct at issue
(
21
was committed by a defendant acting under color of state
law, and that the conduct deprived the plaintiff of rights,
privileges or immunities protected by the Constitution of
the United States. See Boulter v. Jordan, 733 F. Supp. 85, 87
(D. Colo. 1990). Because Mr. Vento’s allegations, even if
taken as true, cannot satisfy either of these requirements,
his Complaint against CNB and Mr. Stark must fail.
1. Mr. Vento Cannot Demonstrate That CNB Or
Mr. Stark Acted “Under Color Of State Law”
This Court has set forth a two-part inquiry to deter-
mine whether a private individual acts under color of
state law for purposes of § 1983. First, “the deprivation
must be caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by
the State or by a person for whom the State is responsi-—
ble,” and second, “the party charged with the deprivation
must be a person who may fairly be said to be a state
actor.” Lugar v. Edmondson Oil Co., 457 US. 922, 937
(1982). To fulfill the state actor requirement, a plaintiff
must demonstrate that the actions of the private defen-
dant are “fairly attributable” to the state. Lee v. Town of
Estes Park, 820 F.2d 1112, 1115 (10th Cir. 1987). Thus, the
Petitioner must show “the existence of a significant nexus
of entanglement between [the State official] and the pri-
vate party in relation to the steps taken by each to fulfill
the objects of their [alleged] conspiracy.” Norton v. Liddel,
620 F.2d 1375, 1380 (10th Cir. 1980). Nexus may be estab-
lished by a showing that “the state official and private
person(s) reached an understanding between themselves
22
to deprive the plaintiff of rights guaranteed under the
Constitution.” Boulter, 733 F. Supp. at 87.
Petitioner’s § 1983 claim against CNB and Mr. Stark
fails as a matter of law. Petitioner has not alleged, and
cannot allege consistent with Fed. R. Civ. P. 11, any facts
which could demonstrate that Mr. Stark or CNB are “state
actors,” nor has he adequately alleged that a “conspir-
atorial nexus” existed between CNB, Mr. Stark, and Judge
Stewart. Petitioner did not allege even one instance
where Mr. Stark or CNB reached any understanding with
Judge Stewart to deprive Petitioner of his constitutional
rights. In fact, Petitioner did not suggest, nor can he, that
there was any communication whatsoever between Mr.
Stark, CNB, and Judge Stewart outside of the January 3,
1996 hearing. Instead, Petitioner summarily claimed that
“(t]he actions of the defendants through the Denver Pro-
bate Court” violated § 1983. (Petition, App. D-1, p. 52.)
Such vague and unsubstantiated allegations are
insufficient to withstand a motion to dismiss. See, e.g.
Boulter, 733 F. Supp. at 87. Where a plaintiff seeks to
establish the requisite “state action” through allegations
of conspiracy between a judge and private parties, the
plaintiff must do more than assert conclusory allegations;
he must “specifically present facts tending to show agree-
ment and concerted action.” Sooner Products Co. v.
McBride, 708 F.2d 510, 512 (10th Cir. 1983). In Petitioner’s
Opening Brief, he listed seven “overt acts” which, he
believes, indicate a conspiracy between the Defendants.
(Opening Brief at 18-19, Appendix O at pp. 67-68.) These
“overt acts” are nothing more than routine events occur-
ring during the course of litigation which could be
23
present in any interpleader action. They are not unique,
and certainly not “clandestine” as Mr. Vento asserts.
As additional support that there was concerted action
between the Defendants, Mr. Vento maintains that there
was absolutely no reason why CNB needed to interplead
the funds in the first place, and that “there is nothing in
the record to show that there were claims against CNB
exposing it to double or multiple liability.” (Opening
Brief at 20, Appendix O at pp. 69-70.) This is simply untrue,
as set out in the factual discussion above.
Nor can Mr. Vento’s § 1983 claim Survive based upon
an argument that Mr. Stark’s efforts on behalf of CNB ina
state court proceeding constitute state action. Lawyers do
not act under color of law solely by engaging in private
litigation on behalf of their clients. Polk County v. Dodson,
454 U.S. 312, 325, 102 S. Ct. 445, 70 L. Ed.2d 509 (1981):
Brown v. Chaffee, 612 F.2d 497, 501 (10th Cir. 1979); see also
Lindley v. Amoco Prod. Co., 639 F.2d 671, 673 (10th Cir.
1981).
2. CNB And Mr. Stark’s Participation In The Inter-
pleader Action Cannot Form The Basis Of A
§ 1983 Action
Petitioner’s claims amount to nothing more than
assertions that Mr. Stark and CNB wrongfully used state
court proceedings to obtain a ruling unfavorable to Mr.
Vento. Where, as here, the conduct complained of consists
of “private litigation in which the state does no more than
furnish the forum and has no interest in the outcome,”
the plaintiff cannot maintain a cause of action under
§ 1983. Torres v. First State Bank, 588 F.2d 1322, 1326 (10th
24
Cir. 1978) (quoting Hill v. McClellan, 490 F.2d 859, 860 (5th
Cir. 1974), overruled on other grounds, Sparks v. Duval
County Ranch Co., 604 F.2d 976 (5th Cir. 1979), affirmed,
449 U.S. 24, 101 S. Ct. 183, 66 L. Ed.2d 185 (1980)).
To state a claim under the theory that Mr. Stark and
CNB used the state judicial process in violation of § 1983,
Petitioner is required to show that the state court pro-
ceedings were a “complete nullity.” Torres, 588 F.2d at
1326. In other words, Petitioner must plead specific facts
that indicate the judge and defendants conspired to vio-
late his right to due process and consequently rendered
void any judicial proceeding. However, Petitioner failed
to allege any facts which indicate that Mr. Stark or CNB
“obtained significant aid” from Judge Stewart or other-
wise received special treatment which rendered the judi-
cial proceedings void. See Lugar, 457 U.S. at 937.
Petitioner argues that CNB and Mr. Stark are state
actors because they acted jointly with Judge Stewart to
deprive him of property. He contends that these Defen-
dants interfered with his property interest simply by
bringing the Interpleader Action. This line of reasoning
would lead to the absurd result that all lawsuits would
constitute illegal state action, which would in turn choke
the courts with § 1983 claims. Petitioner’s characteriza-
tion of CNB’s and Mr. Stark’s roles in the Interpleader
Action is improper and illogical, and cannot form the
basis of a valid § 1983 claim. The § 1983 claim against Mr.
Stark and CNB was properly dismissed.
|
{
;
;
}
25
E. Petitioner Has Not Been Denied Due Process
Because He Has Regularly Invoked The Jurisdiction
Of Colorado State Courts
As a separate claim, Petitioner alleged that the
Respondents violated his due process rights through the
Denver Probate Court. The claim that Petitioner has been
deprived of the right to litigation is absurd. In addition to
the instant action, Petitioner has litigated the issue of due
process, along with the propriety of jurisdiction, venue,
and the Interpleader Action itself, in no fewer than six
separate pleadings in the Interpleader Action, two actions
in the Pueblo District Court, and appeals from every one
of those adverse decisions.1°
A party cannot have been denied due process if he
regularly invoked the jurisdiction of a state court, the
case was tried, and a judgment was rendered and
appealed. Bottone v. Lindsley, 170 F.2d 705, 707 (10th Cir.
1948), cert. denied, 336 U.S. 944, 69 S. Ct. 810 (1949)
(affirming dismissal of action under §§ 42 and 43 of the
Civil Rights Act against the litigants, lawyers and judge
who participated in a case that the appellant unsuc-
cessfully brought in Colorado state court). See also, Wil-
liams v. Texaco, Inc., 165 B.R. 662, 674 (D.N.M. 1994) (party
was afforded due process in the determination of whether
sanctions should be imposed because party had adequate
notice and opportunity to respond, and court’s decision
not to hold hearing on whether sanctions should be
imposed was matter within sound discretion of the
court); Sexton v. Barry, 233 F.2d 220, 224 (6th Cir. 1956),
'0 See footnotes 2-5, supra.
26
cert. denied, 352 U.S. 870, 77 S. Ct. 94 (1956) (party has not
been denied due process merely because he lost his case
where party had a full hearing in three state courts on all
questions presented). Indeed, the Court of Appeals for
the Tenth Circuit has noted that “[t]he doctrine of due
process does not confer the right to litigate the same
question twice.” Bottone, 170 F.2d at 707.
In its April 1, 1997 Summary Judgment Order, the
Pueblo District Court ruled that Mr. Vento’s claims
against CNB were barred by collateral estoppel precisely
because he had litigated the issues so many times:
This court finds that the Order on Interpleader
Petition is a “final judgment” as to the issues of
whether CNB has satisfied the judgment and
whether CNB’s institution of the Interpleader
Action constituted an anticipatory repudiation
of the letter of credit for purposes of collateral
estoppel. Additionally, the Court finds that the
Plaintiff is a party in the Interpleader Action,
that the Plaintiff has fully litigated the same
argument in the Interpleader Action, having
made five separate requests to the Denver Pro-
bate Court to overturn the Denver Probate
Court order on interpleader and having applied
to the Colorado Supreme Court for writs of pro-
hibition and mandamus against the Denver Pro-
bate Court, which was subsequently denied, and
by having unsuccessfully appealed an April 26,
1996, order of the Denver Probate Court which
affirmed its January 3, 1996, Interpleader Order.
(Appendix E at pp. 19-20.11) As the Pueblo District Court
recognized, Petitioner has had several opportunities to
11 Petitioner has previously argued, without any legal
basis, that the District Court was somehow prohibited from
considering orders entered by, and pleadings filed in, the state
satin pal =—e
tee et) oft eet we
27
litigate the allegations asserted here and has, in fact, fully
litigated these issues in Colorado state courts. His claims
that CNB and Mr. Stark somehow violated his due pro-
cess rights were appropriately dismissed.
a
CONCLUSION
Petitioner has articulated no basis for this Court to
consider his Petition. Unhappy with the rulings issued by
Colorado’s state courts, Petitioner has resorted to filing a
frivolous and groundless federal suit. Petitioner filed his
complaint, and now this appeal, with complete disregard
for basic principles of law which indisputably prohibit
this action. CNB and Mr. Stark ask this Court to deny the
Petition for Writ of Certiorari.
DATED September 13, 1999.
Respectfully submitted,
KENNETH B. SIEGEL
(Counsel of Record)
BARBARA Weit GALL
SHERMAN & Howarp L.L.C.
633 Seventeenth Street, Suite 3000
Denver, Colorado 80202
(303) 297-2900
Counsel for Respondents U.S. Bank,
f/k/a Colorado National Bank
and David W. Stark
courts (Opening Brief at 12, Appendix O at p. 62). The District
Court was permitted to take judicial notice of those orders and
pleadings pursuant to F.R.E. 201, and the evidence was properly
before the Court pursuant to F.R.E. 803(8).
H.
Table of Contents of Appendix
Excerpts of the Certified Record of the Docket
of Colorado National Bank v,. Joseph A. Vento, et
al., Case No. 95 PR 2379, Probate Court for
the City and County of Denver, Colorado. -App.
Order of the Colorado Supreme Court in Jos-
eph A. Vento v. Probate Court et al., case no.
96SA241, dated June 27, 1996...........__. App.
Order of Colorado Court of Appeals in Joseph
A. Vento v. Colorado National Bank, et al., case
no. 96 CA 1298, dated August 9, 1996..... App.
Order on Citation for Contempt in Joseph A.
Vento et al. v. Colorado National Bank-Pueblo,
Case No. 87 CV 867, District Court, Pueblo
County, Colorado, dated April 26, 1997... .App.
Order on Summary Judgment in Joseph A.
Vento v. Colorado National Bank, case no. 96 CV
31, District Court, Pueblo County, Colorado,
dated EE Be BO ev tknvedceececeso App.
Order of Colorado Court of Appeals in Joseph
A. Vento v. Colorado National Bank, case no. 97
CA 0685, dated April 23, 1998............. App.
Order of Colorado Supreme Court in Joseph A.
Vento v. Colorado National Bank, case no. 98 SC
376, dated Decetnber 7, 1998............._. App.
Certified Registry of the Probate Court for the
City and County of Denver, Colorado in Colo-
rado National Bank v. Joseph A. Vento, et al.,
Case No. 95 PR 2379...................... App.
We We WE MI Ss heb kt Fo cliec ne App.
10
14
21
25
27
28
Z
ii
Table of Contents of Appendix — Continued
Federal Rules of Evidence, Rule 201. Judicial
Notice of Adjudicative Facts............... App.
Federal Rules of Evidence, Rule 803. Hearsay
Exceptions; Availability of Declarant Imma-
terial... ce eee cece eee eeeees App.
Colorado Revised Statutes § 13-9-103. Juris-
SNE. auvcnthwed seen edb usuebasdeewenseoveser App.
Colorado Rules of Civil Procedure 1, 22,
ES RE Ape One rk Toy 4 Pes be ans ne TT App
Affidavit of David W. Stark ............... App.
Opening Brief of Joseph A. Vento in the Court
of Appeals for the Tenth Circuit........... App.
App. 1
APPENDIX A
EXCERPTS FROM THE
CERTIFIED COPY OF REGISTER OF ACTIONS FOR
CASE NO 95 PR 2379 PROBATE COURT, CITY AND
COUNTY OF DENVER, COLORADO
COLORADO NATIONAL BANK vy.
JOSEPH A. VENTO et al.
+ + *
FILE DATE EVENT DESCRIPTION
SCHD DATE TIME ROOM
01/08/1995 Miscellaneous
FLG FEDWIRE WIRE ADVICE STATEMENT OF
DEPOSIT FM NORWEST BANK COLORADO, NA:
FILE DATE EVENT DESCRIPTION
SCHD DATE TIME ROOM
$4,352,761.56 | /MW
12/29/1995 Filing Other
VERIFIED MOTN FOR LEAVE TO DEPOSIT MONEY
WITH COURT PAID FOR INJUNCTIVE RELIEF PUR-
SUANT TO RULE 22C RCP
[SEAL]
* * *
FILE DATE EVENT DESCRIPTION
SCHD DATE TIME ROOM
01/03/1996 Order
FINDINGS ASF. ORD: A. CNB DRCTD T-TRNSFR
T-ACCT ASF AT NORWEST SUM OF APPROX $4,400,000
ASF. B. ACCT T-B HELD AT INTEREST IN NAME OF
DEVER PROB CT F/B/O VENTO BENEFICIARIES ASF.
C. UPON TRNSFR OF JOGMNT AMT AND SUBJ ONLY
T ADJSTMNTS OF CALCULATION CNB SHL B-CON-
SIDERED T-HAVE STSFD THE JDGMNT. THIS SATIS-
FACTION CANNOT B-CONSTRUED T-HINDER OR SHL
IT B-CONSTRUD BY ANY CT T-HINDER ANY OTHR
App. 2
CLMS AGAINST CNB. D. DENDNTS RSTRND FROM
INSTITUTING OR PROSECUTING ANY ACTION
AGAINST CNB WHEREIN THEY SEEK T-RECOVER
AMT OF JGMNT ASF
[SEAL]
+ * *
01/08/1996 Miscellaneous
FILE DATE EVENT DESCRIPTION
SCHD DATE TIME ROOM
MOTN TO DISQUALIFY OR ALTERNATIVELY FOR
RECUSAL AND MOTN TO VACATE JAN
03 ORDR ON INTERPLEADER CERT/SERVICE EXHB
(A)-(D)
MOTN TO DISQUALIFY OR ALTERNATIVELEY [sic]
FOR RECUSAL CERT/SERVICE EXHB (A)-(D)
MOTN FOR CHANGE OF VENUE CERT/MLG EXHB
(A)-(B) /KLA
[SEAL]
* * +
01/24/1996 Miscellaneous
SECOND MOTN TO DISQUALITY OR ALTERNATIVELY
FOR RECUSAL CERT/MLG #1 EXHB (A)-(B)
MOTN TO DISMISS CROSS CLAIM RENEWAL OF
MOTN FOR CHANGE OF VENUE AND RECITATION
OF AUTHORITY CERT/MLG #1-#4
[SEAL]
* * +
02/08/1996 Miscellaneous
DEFENDANTS JOSEPH VENTO AND WESLEY C KET-
TELKAMP JRS MOTN FOR RELIEF FROM JANUARY 3
ORDR ON INTERPLEADER PURSUANT TO CRCP
CERT/SERVICE EXHB (A)-(C)
[SEAL]
. ~~ ‘
Six i paises lot eek.
ney SE nn ete he
ee ee ieee
}
a
4
App. 3
FILE DATE EVENT DESCRIPTION
SCHD DATE TIME ROOM
04/25/1996 Miscellaneous
MOTN FOR CONTINUANCE OF APRIL 26, 1996 HRG
BY PHILLIP D BARBER
MOTN FOR LEAVE TO W/DRAW /KLA
04/25/1996 Hearing 05/14/1996 08:00 AM 2
Judicial Officer ........._. : SANDRA FRANKLIN
WN tae : 1.00 Hour(s)
ctepeoagt hE Te On es ‘ HELD - Hearing Held
Calendar Note.........._. : MOTN W/DRA
ORD: VENTO’S MOTNTO DISMISS IS DENIED
ORD: MOTN FOR ORDR DIRECTING ISSUANCE OF
CONT CITN IS DEFERRED
ORD: MOTN FOR RELIEF FROM ORDR OF 01-03-96 IS
DENIED
ORD: MOTN FOR EXT OF TIME TO RSPD TO CROSS
CLAIM IS GRNTD /PRO
[SEAL]
* * *
09/26/1996 Miscellaneous
CPR/CPR VENTO, JOSEPH A
FILE DATE EVENT DESCRIPTION
SCHD DATE TIME ROOM
AMENDMENT OF ANSWER BY JOSEPH A VENTO
CERT/MLG /KLA
App. 4
FILE DATE EVENT DESCRIPTION
SCHD DATE TIME ROOM
10/21/1996 Miscellaneous
CPR/CPR VENTO, JOSEPH A
OBJEC BY DEFENDANT JOSEPH A VENTO TO CNB
BEING DISCHARGED FROM ALL FURTHER LIABILITY
AND DISMISSED FROM THIS CASE AFFIRMATIVELY
FOR A MOTN FOR AN ORDR TO DISMISS THIS CASE
OR ALTERNATELY FOR AN ORDR VACATING OR DIS-
SOLVING THE PRELIMINARY OR TEMPORARY
INJUNCTION CERT/MLG /KLA
[SEAL]
+ * +
12/13/1996 Minute Order (print)
JUDGE: RICE CLERK: TRG REPORTER: K. RINK
PARTIES APPR RE MOTNS HRG
HEARING HELD
ORD: DEFT KETTELKAMP’S MOTN FOR LEAVE TO
ASSERT COUNTERCLAIMS AGAINST PTF IS
GRANTED; KETTELKAMP’S COUNTERCLAIMS
AGAINST PTF CNB ARE DEEMED FILED
ORD: THE PARTIES’ JOINT MOTN FOR MODIFICA-
TION OF CMO IS GRNTD
ORD: DEFT VENTO’S MOTN TO DISMISS CLAIMS IS
DENIED
ORD: DEFT SAUNDERS’ MOTN TO COMPEL DEFT
VENTO TO RESPOND TO DISC IS GRNTD
*WORDS (4) (CC ALL PARTIES OF RECORD) /PRO
[SEAL]
COE PEE. +S Dae
App. 5
APPENDIX B
SUPREME COURT, STATE OF COLORADO
CASE NO. 96SA241
ORIGINAL PROCEEDING, PROBATE COURT, CITY &
COUNTY OF DENVER,
95PR2379
ORDER OF COURT
JOSEPH A. VENTO,
Petitioner,
V.
THE PROBATE COURT IN AND FOR THE CITY AND
COUNTY OF DENVER, STATE OF COLORADO, and
THE HONORABLE C. JEAN STEWART AND NANCY
E. RICE, the Judges thereof,
Respondents.
Upon consideration of the Petition for Writs in the
Nature of Prohibition and Mandamus filed in the above
cause, and now being sufficiently advised in the prem-
ises,
IT IS THIS DAY ORDERED that said Petition shall be,
and the same hereby is, DENIED.
BY THE COURT, EN BANC, JUNE 27, 1996.
[SEAL]
ce:
App. 6
Joseph A. Vento
102 S. Tejon, Suite 1100
Colorado Springs, CO 80903
The Honorable Nancy E. Rice
Denver District Court
City and County Building
1437 Bannock Street
Denver, CO 80202
The Honorable C. Jean Stewart
Probate Judge
City and County Building
1437 Bannock Street, Suite 230
Denver, CO 80202
Clerk of the Probate Court
Denver Probate Court
City and County Building
1437 Bannock Street, Suite 230
Denver, CO 80202
Jack M. Merritts
BURNS, WALL, SMITH AND MUELLER, P.C.
303 E. Seventeenth Street
Denver, CO 80203-1260
David W. Stark
Kenneth K. Skogg
OTTEN, JOHNSON, ROBINSON,
NEFF & RAGONETTILI, P.C.
950 Seventeenth Street, Suite 1600
Denver, CO 80202
James Littlepage
DANZO & LITTLEPAGE
4155 East Jewell Ave., Suite 500
Denver, CO 80222
App. 7
John A. Purvis
PURVIS, GRAY, SCHUETZE & GORDON
1050 Walnut Street, Suite 501
Boulder, CO 80302
Kenneth B. Sigel
Barbara Weil Gal]
SHERMAN & HOWARD, L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
App. 8
APPENDIX C
(Filed Aug. 1, 1996)
COURT OF APPEALS, STATE OF COLORADO
[cd]
Case No. 96 CA 1298
[or]
MOTION TO DISMISS APPEAL
JOSEPH A. VENTO,
Defendant-Appellant
V.
COLORADO NATIONAL
BANK, Plaintiff-Appellee,
and
IRENE C. COULTER,
RICHARD G. VENTO,
ANGELINA VENTO,
MARIHELEN VENTO and
LINDA SAUNDERS,
Personal Representative of
the Estate of Cecilia
DeFellippie, Defendants-
Appellees
V.
JOSEPH A. VENTO,
Defendant-Appellee
[COPIES MAILED TO
COUNSEL OF RECORD
Tri. Ct. Clerk
ON 8/9/96
BY dh
COLORADO COURT OF
APPEALS]
(X) GRANTED
( ) DENIED
Aug. 9, 1996
Appeal dismissed with
prejudice.
Plank, Hume, Jones, JJ.
By the Court
Colorado Court of
Appeals]
Defendants-Appellees, Irene C. Coulter, Richard
Vento, Angelina Vento, and Marihelen Vento, by and
:
:
7
|
POD TaN Ga hast ARS PO te
App. 9
through their undersigned Counsel, hereby move to dis-
miss the Appeal taken by Defendant-Appellant Joseph A.
Vento as untimely filed in violation of C.A.R. 4(a). As
grounds therefor, the Defendants-A ppellees State as fol-
lows:
1. Joseph A. Vento, appearing pro-se but who is an
attorney licensed to practice law in the State of Colorado
(Registration No. 637), filed a Notice of Appeal on or
about July 18, 1996, which expressly states that the appeal
concerns only the
App. 10
APPENDIX D
DISTRICT COURT, PUEBLO COUNTY, COLORADO
CASE NO. 87 CV 867 DIV. A
ORDER ON CITATION FOR CONTEMPT
(Apr. 26, 1996)
a ee ee EEE EEE LLL LALLA LE EL
JOSEPH A. VENTO and CECILIA DE FELLIPPIE,
Plaintiffs,
v.
COLORADO NATIONAL BANK-PUEBLO,
Defendant.
-<<--- ---- -- ae we ee we we we ew ew ew ew wwe
This matter came on April 14, 1996, for hearing a
Petition for an Order finding the Defendant Colorado
National Bank, hereinafter referred to as the Bank, in
contempt of Court filed on behalf of the Plaintiff Joseph
A. Vento, hereinafter referred to as Vento. The Plaintiff
appears to assert that the Defendant Bank is in contempt
of this Court’s Order of June 15, 1993 granting a money
judgement to each of the Plaintiffs in the amount of
$931,962.50 and this Court’s Order of September 16, 1993,
which permitted the Bank to file a Letter of Credit as a
supersedeas bond in order to stay execution on the judge-
ment pending appeals.
The situation giving rise to this controversy is as
hereinafter set out. The Court of Appeals affirmed the
trial Courts order and judgement of June 15, 1993 and the
Supreme Court denied certiorari on December 11, 1995.
On January 3, 1996, two days before the mandate of the
el
ee eee eee
eS a ee ee
App. 11
Court of Appeals issued, the Bank obtained an Order of
Interpleader from the Denver Probate Court which autho-
rized the Bank to deposit in Norwest Bank Colorado N.A.
$4,400,000.00 representing the amount of the Previously
mentioned judgement, plus costs and interests, to be held
at interest in the name of “The Denver Probate Court
f/b/o Vento Beneficiaries” pursuant to the provisions of
CRS 11-10.5-101 et seq. Upon such deposit, the Bank was
to be deemed to have satisfied the judgement Previously
mentioned. In addition the above named plaintiffs, their
counsel and certain other Parties were enjoined from
executing on said judgement or collecting on the Letter of
Credit.
The Plaintiffs assert that the Bank is in contempt of
this Court’s Order of Judgement of June 15, 1993, by
seeking interpleader in that it has deprived this Court of
jurisdiction. This is an issue which can only be raised in
the Denver Court to which the interpleader action has
been transferred. It is up to that Court to determine if it
Properly has jurisdiction of the controversy. It is clear
that one district court does not have jurisdiction to deter-
mine whether another district court has jurisdiction of a
particular controversy. The entry of a judgement against a
defendant for money damages does not prevent that
defendant from seeking the relief which can be obtained
pursuant to Rule 22 of the Colorado Rules of Civil Pro-
cedure (providing such defendant brings him/her self
within the provisions of such rule). Or in other words, a
judgment debtor who seeks relief pursuant to Rule 22
cannot be said to be in contempt of court by reason of
such action.
App. 12
However, the Plaintiff claims that the Bank is in
contempt of court with respect to this Court’s Order of
September 16, 1993, by an inaccurate statement made by
Bank’s counsel during a hearing on the Bank’s Motion for
leave to file a letter of credit in lieu of a supersedeas
bond. Counsel did represent to the Court at the Septem-
ber 16, 1993 hearing that the Defendant Bank was an
independent Bank that was simply part of the Colorado
National Bank system. The point being that the letter of
credit was backed up by all of the assets of the entire
Colorado National Bank system rather than being limited
to the assets of the Colorado National Bank at Pueblo.
Thus the system of banks would act in a manner similar
to that of a surety for the Pueblo bank. Counsel now
freely admits that he was misinformed and in error. Colo-
rado National Bank at Pueblo is integrated into Colorado
National Bank and is not an independent bank. However,
an honest mistake does not constitute contempt of court.
Under either set of facts, the letter of credit was indeed
backed up by the assets of the entire Colorado National
Bank system.
At this same hearing, the issue arose whether the
Plaintiff would have to institute a separate action against
the Bank in order to collect on the letter of credit. In this
connection counsel for the Bank stated that the Bank was
already in the jurisdiction of the Court and all the plain-
tiffs had to do to collect was to move the Court for an
order calling the letter of credit. The order that entered
on the September 16, 1993 hearing simply granted the
Defendant’s motion permitting it to file the Letter of
Credit in lieu of a supersedeas bond; it did not forbid the
Defendant from seeking interpleader in this or another
aad Pes
DHEA eS nt tes ar wt LL
Be wh rar ae emt So oll bt
=
— a
App. 13
court. In order to find conte
mpt of court based on viola-
tion of a court order, the
order must clearly spell out
either the required action of the forbidden action. The
order of September 16, 1993, did not forbid the Defendant
Bank from seeking interpleader,
IT IS THEREFOORE [sic] ORDERED THAT the Plain-
tiff’s Petition for an Order finding the Defendant Bank in
contempt of Court be and the same hereby is denied.
DONE THIS 26TH DAY OF APRIL, BY THE COURT
/s/ Patti F. O'Rourke 4-26-96
PATTI F. O'ROURKE.
SENIOR DISTRICT COURT JUDGE
xc James Littlepage
Kenneth Siegel
D. Stark
Kettlekamp 4-29-96
App. 14
APPENDIX E
DISTRICT COURT, COUNTY OF PUEBLO, STATE OF
COLORADO
CASE NO. 96CV31, Division A
SUMMARY JUDGMENT
JOSEPH A. VENTO, (Filed Mar. 31, 1997)
Plaintiff,
V.
COLORADO NATIONAL
BANK,
Defendant.
This matter is before the Court on Plaintiff’s Motion
for Summary Judgment filed November 27, 1996, and
Defendant’s Motion for Summary Judgment filed Novem-
ber 14, 1996, the Court having reviewed said motions the
responses and replies thereto, and having heard oral
argument on March 19, 1997, DOES NOW FIND AND
CONCLUDE AS FOLLOWS:
I. LEGAL STANDARD
C.R.C.P. 56(c) provides in pertinent part:
(c) .. . [Summary judgment] shall be rendered
forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file,
together with the affidavits, if any, show that
es
i a Seo aint
App. 15
there is no genuine issue as to any material fact
and that the moving party is entitled to a judg-
ment as a matter of law.
“Summary judgment is a drastic remedy and should
be granted only upon a clear showing that there is no
genuine issue as to any material fact.” Peterson v. Halsted,
829 P.2d 373, 375 (Colo. 1992). “The existence of a difficult
or complicated question of law, when there is no issue of
facts, is not a bar to summary judgment.” Jones v, Dressel,
623 P.2d 370, 373 (Colo. 1981).
Il. FACTUAL AND PROCEDURAL BACKGROUND
In 1968, the Joseph A. Vento Trust, the Dominic A.
Vento Trust, the Irene C. Coulter Trust and the Cecilia
DeFellippie Trust became co-owners of an undivided one-
quarter interest in coal mining property in Fremont
County, Colorado. CNB and its predecessors (the First
National Bank of Pueblo, which became Colorado
National Bank-Pueblo, which became CNB) acted as the
sole trustee of each of the four trusts which owned the
coal mining Property. On or about September 8, 1987,
Plaintiff Joseph A. Vento and Cecilia DeFellippie filed an
action in Pueblo District Court, 87CV867-A, against
CNB’s predecessor asserting breach of fiduciary duty in
managing and administering their trusts and the trust
Property. On June 15, 1993, the Plaintiffs, in 87CV867-A
each obtained a judgment against CNB in the amount of
$931,962.50. The trial court also awarded costs and inter-
est at a rate of 8% from March 22, 1985.
CNB appealed the judgments. On August 26, 1993, a
hearing was held in 87CV867-A on Defendant's renewed
App. 16
motion for stay of execution of the judgments. Joseph
Vento contended at said hearing that a letter of credit was
insufficient as a supersedeas bond. The trial court, find-
ing that Rule 121, Section 1-23(4) of the C.R.C.P autho-
rized a letter of credit ruled that 1) “the Defendant's
renewed motion for a stay of execution be and the same
hereby is granted upon the Defendant's filing of a letter
of credit in the amount of $4,000,000 in the form hereto
furnished by the Defendant to the Court.” (See Exhibit 3
attached to Plaintiffs request that the Court take judicial
notice, filed 2-8-97).
An irrevocable letter of credit dated October 4, 1993
(attached as Exhibit A to Plaintiff’s Brief in Support of
Plaintiff's Motion for Summary Judgment) was issued by
CNB in this matter in lieu of a supersedeas bond.
The Colorado Court of Appeals affirmed the judg-
ments entered in 87CV867-A. The Court [sic] Supreme
Court denied CNB’s petition for certiorari on December
11, 1995.
On or about December 22, 1995, Linda Saunders filed
an action, as personal representative of the estate of
Cecilia DeFellippie in the District Court, Pueblo County,
Colorado, in which Ms. Saunders alleged that a dispute
existed regarding the division of proceeds of the judg-
ments between the Plaintiffs in the 1987 action and
Wesley Kettelkamp, who acted as attorney for Plaintiffs
in the 1987 action. See transcript of hearing of January 3,
1996, in Case No. 95PR2379, attached as Exhibit B to
Defendant's Brief in Support of Defendant’s Motion for
Summary Judgment (“Transcript”) at 26:4 to 27:11 (state-
ment by attorney for Ms. Saunders).
App. 17
Also, CNB received or became aware of letters from
the beneficiaries of the Irene C. Coulter and Dominic A.
Vento Trusts, as well as from attorneys for Ms. Saunders
and Mr. Kettelkamp, all claiming some interest in the
Proceeds of the judgments. On December 29, 1995, CNB
filed an action in the Denver Probate Court, Case No.
95PR2379 (the “Interpleader Action”) in response to these
competing claims, and in order to Satisfy the judgments
entered in the 1987 action.
On January 3, 1996, the Denver Probate Court
entered an order in the Interpleader Action directing
CNB to transfer to an account at Norwest Bank approxi-
mately $4.4 million, representing the amount of the judg-
ments against CNB and costs awarded and interest
accrued as of January 3, 1996 (the “Interpleader Order”).
The Interpleader Order Provided that “upon transfer of
the judgment amount . . . CNB shall be considered to
have satisfied the judgment . . . ” See Exhibit C attached
to Defendant’s Brief in Support of Defendant's Motion for
Summary Judgment.
Ill. PLAINTIFF’S CLAIMS/GROUNDS FOR SUMMARY
JUDGMENT
1. Plaintiff claims that the letter of credit is a con-
tract between CNB and the Plaintiff, which CNB
breached.
2. Plaintiff further claims that CNB’s institution of
the Interpleader Action constituted an anticipatory repu-
diation of the letter of credit.
App. 18
The “beneficiary” of a letter of credit is defined in
C.R.S. Section 4-5-103(1)(d) (1992 Repl. Vol.) as “a person
who is entitled under its terms to draw or demand pay-
ment.”
A review of the letter of credit (Exhibit A, Plaintiff's
Motion for Summary Judgment) reveals that the letter of
credit was issued to the Pueblo District Court. Accord-
ingly, Pueblo District Court was the beneficiary. Argua-
bly, Plaintiff, along with Cecilia DeFellippie, may be
third-party beneficiaries of the letter of credit. However,
third-party beneficiaries have no standing to bring an
action for wrongful dishonor of a letter of credit. See
Interchemicals Co., Inc. v. Bank of Credit and Commercial
International, 222 A.D. 273; 635 N.Y.S. 2d 194 (1995). The
Court, therefore, finds that there was no contract between
CNB and Plaintiff.
Assuming arguably that the letter of credit created a
contract between CNB and Plaintiff, the Court finds that
there has been no breach of said contract. The letter of
credit was posted in lieu of a supersedeas bond to guar-
antee payment of the judgment. CNB satisfied the judg-
ment by paying approximately $4.4 million into the
registry of the Denver Probate Court (see Order Inter-
pleader Action).
Finally, in light of the Court’s finding above, the
Court finds that the Plaintiff's claim that the Interpleader
Action constitutes an anticipatory repudiation of the let-
ter of credit is without merit.
eS at ele aah aR
ee ee een eam SiN -
App. 19
IV. DEFENDANT’S GROUNDS FOR SUMMARY
JUDGMENT
Defendant claims that the Plaintiff’s claims are
barred by collateral estoppel and res judicata.
“The doctrines of res judicata and collateral estoppel
relieve the parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and, by preventing
inconsistent decision, encourage reliance on adjudica-
tion.” City and County of Denver v. Block 173 Associates, 814
P.2d 824, 830 (Colo. 1991).
“Res judicata operates as a bar to a second action on
the same claim as one litigated in a prior proceeding
where there is a final judgment, identity of subject matter
claims for relief and Parties to the action.” Block 173
Associates, 1.D. at 830.
“Collateral estoppel is directed to issue preclusion
(citation omitted) when an issue of fact or law is actually
litigated and determined by a valid and final judgment,
and the determination is essential to the judgment, the
determination is conclusive in a subsequent action
between the parties whether on the same or a different
claim.” Block 173 Associates, 1.D. at 831.
“An issue is actually litigated for purposes of collat-
eral estoppel when the issue has been raised by the
parties in the previous action, by the pleadings or other-
wise was submitted for determination and determined.”
Leahy v. Guaranty National Ins. Co., 907 P.2d 697, 699 (Colo.
App. 1995).
This court finds that the Order on Interpleader Peti-
tion is a “final judgment” as to the issues of whether CNB
App. 20
has satisfied the judgment and whether CNB’s institution
of the Interpleader Action constituted an anticipatory
repudiation of the letter of credit for purposes of collat-
eral estoppel. Additionally, the Court finds that the Plain-
tiff is a party in the Interpleader Action, that the Plaintiff
has fully litigated the same argument in the Interpleader
Action, having made five separate requests to the Denver
Probate Court to overturn the Denver Probate Court
order on interpleader and having applied to the Colorado
Supreme Court for writs of prohibition and mandamus
against the Denver Probate Court, which was subse-
quently denied, and by having unsuccessfully appealed
an April 26, 1996, order of. the Denver Probate Court
which affirmed its January 3, 1996, Interpleader Order.
The Court accordingly finds the Plaintiff’s claims are
barred by collateral estoppel.
IT IS THEREFORE THE ORDER OF THE COURT that
summary judgment enter for the Defendant CNB and
against the Plaintiff Joseph A. Vento as to Plaintiff's
claims.
DONE this 1st day of April 1997.
BY THE COURT:
/s/ Rosalie Vigna
Rosalie Vigna, District Judge
xc: Joseph A. Vento
Kenneth B. Siegel
4-3-97
cc
Cuemdtdanu ee
App. 21
APPENDIX F
COLORADO COURT OF APPEALS April 23, 1998
No. 97CA0685 NOT SELECTED FOR PUBLICATION
Joseph A. Vento,
Plaintiff-Appellant,
v.
Colorado National Bank,
Defendant-Appellee.
Appeal from the District Court of Pueblo County
Honorable Rosalie Vigna, Judge
No. 96CV31
Division | JUDGMENT AFFIRMED
Opinion by JUDGE
METZGER
Davidson and Roy, JJ.,
concur
Joseph A. Vento, Pro Se
Sherman & Howard, L.L.C., Kenneth B, Siegel, Barbara
Weil Gall, Denver, Colorado, for Defendant-Appellee
Plaintiff, Joseph A. Vento, appeals the summary judg-
ment entered in favor of defendant, Colorado National
Bank. We affirm.
Initially, we note that defendant has questioned
plaintiff’s standing to bring this action. While defendant
may well be correct that a third-party beneficiary such as
App. 22
plaintiff has no standing to bring an action for wrongful
dishonor of a letter of credit, see Schmidt-Tiago Construc-
tion Co. v. City of Colorado Springs, 633 P.2d 533 (Colo.
App. 1981), we elect to address plaintiff's major conten-
tion of error.
Plaintiff contends the trial court erred in determining
that his claims in this action are barred by collateral
estoppel and in entering summary judgment in favor of
defendant. We disagree.
Summary judgment is a drastic remedy and should
be granted only when no genuine issue of material fact
exists and the moving party is entitled to judgment as a
matter of law. Mancuso v. United Bank, 818 P.2d 732 (Colo.
1991). It is appropriate to rely on the doctrine of collateral
estoppel to award summary judgment. See Rael v. Taylor,
832 P. 2d 1011 (Colo. App. 1991), aff'd in part, rev'd in part,
876 P.2d 1210 (Colo. 1994).
Collateral estoppel bars relitigation of issues if (1) the
issue is identical to an issue actually and necessarily
adjudicated at a prior proceeding; (2) the party against
whom estoppel is asserted is a party or in privity with a
party in the prior proceeding; (3) there was a final judg-
ment on the merits; and (4) the party against whom
estoppel is asserted had a full and fair opportunity to
litigate the issue in the prior proceeding.” City and County
of Denver v. Block 173 Associates, 814 P.2d 824, 831 (Colo.
1991).
Here, the facts are undisputed. Plaintiff’s central
claim in this litigation is that defendant breached a letter
of credit it had tendered as a supersedeas bond securing a
$4 million judgment entered in plaintiff's favor. This
gine ai ee
App. 23
judgment, for which plaintiff has since received payment,
arose from a breach of fiduciary duty claim brought by
plaintiff as a beneficiary of a trust which defendant had
administered.
The trial court determined that an order, entered by
the Denver Probate Court in an interpleader action
brought by defendant, was a final judgment on the same
issues raised here, i.e., whether defendant had satisfied
the underlying judgment and whether defendant's insti-
tution of the interpleader action constituted an anticipa-
tory repudiation of the letter of credit.
The trial court also determined that plaintiff had
been a party to the interpleader action and that he had
fully litigated the same issues raised here. The trial court
Specifically noted that plaintiff had made five separate
requests, advancing the same arguments as presented
here, to the probate court to Overturn its interpleader
order, had also applied to the supreme court for writs of
probation and mandamus against the probate court, and
had unsuccessfully appealed the order of the probate
court.
Thus, the trial court concluded, plaintiff’s claims in
the current action were barred by collateral estoppel and
it entered summary judgment in favor of defendant.
Having reviewed the record, including that of the
Denver Probate Court interpleader action, we conclude
the record fully supports the trial court’s determinations.
Thus, we find no error.
App. 24
In light of this disposition, we need not address
plaintiff's remaining contentions of error.
The judgment is affirmed.
JUDGE DAVIDSON and JUDGE ROY concur.
App. 25
APPENDIX G
SUPREME COURT, STATE OF COLORADO
CASE NO. 98SC376
CERTIORARI TO THE COLORADO
COURT OF APPEALS, 97CA0685
DISTRICT COURT, PUEBLO COUNTY, 96CV31
ORDER OF COURT
JOSEPH A. VENTO,
Petitioner,
V.
COLORADO NATIONAL BANK,
Upon consideration of the Petition for Writ of Cer-
tiorari to the Colorado Court of Appeals, and after review
of the record, the briefs, and the opinion of said Court of
Appeals,
IT IS THIS DAY ORDERED that said Petition for Writ
of Certiorari shall be, and the same hereby is, DENIED.
BY THE COURT, EN BANC, DECEMBER 7, 1998.
[SEAL]
cc:
Joseph A. Vento
102 South Tejon, Suite 1100
Colorado Springs, CO 80903
App. 26
Kenneth B. Siegel
Barbara Weil Gall
633 Seventeenth St., Suite 3000
Denver, CO 80202
Clerk of District Court
Pueblo County Judicial Building
320 West 10th Street
Pueblo, CO 81003
Honorable Rosalie Vigna
Pueblo County Judicial Building
320 West 10th Street
Pueblo, CO 81003
Patrick H. Stanford, Clerk
Colorado Court of Appeals
ore,
Senteieibeen tee ea ee ee
App. 27
APPENDIX H
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[SEAL]
App. 28
APPENDIX I
United States Code, Title 42, Sec. 1983. Civil action for
deprivation of rights
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be sub-
jected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitu-
tion and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a
judicial officer for an act or omission taken in such offi-
cer’s judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of
this section, any Act of Congress applicable exclusively to
the District of Columbia shall be considered to be a
statute of the District of Columbia.
ee ee 7
App. 29
APPENDIX J
Federal Rules of Evidence, Rule 201. Judicial Notice of
Adjudicative Facts
(a) Scope of rule. This rule governs only judicial notice
of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one
not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determina-
tion by resort to sources whose accuracy cannot reason-
ably be questioned.
(c) When discretionary. A court may take judicial
notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice
if requested by a party and supplied with the necessary
information.
(e) Opportunity to be heard. A party is entitled upon
timely request to an Opportunity to be heard as to the
Propriety of taking judicial notice and the tenor of the
matter noticed. In the absence of Prior notification, the
request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken
at any stage of the proceeding.
(g) Instructing jury. In a civil action or Proceeding, the
court shall instruct the jury to accept as conclusive any
fact judicially noticed. In a criminal case, the court shall
instruct the jury that it may, but is not required to, accept
as conclusive any fact judicially noticed.
App. 30
APPENDIX K
Federal Rules of Evidence, Rule 803. Hearsay Excep-
tions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
* * *
(8) Public records and reports. Records, reports, state-
ments, or data compilations, in any form, of public offices
or agencies, setting forth (A) the activities of the office or
agency, or (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement
personnel, or (C) in civil actions and proceedings and
against the Government in criminal cases, factual find-
ings resulting from an investigation made pursuant to
authority granted by law, unless the sources of informa-
tion or other circumstances indicate lack of trustworthi-
ness
App. 31
APPENDIX L
Colorado Revised Statutes § 13-9-193. Jurisdiction
(1) The probate court of the city and county of
Denver has Original and exclusive jurisdiction in said city
and county of:
(a) The administration, settlement, and distribution
of estates of decedents, wards, and absentees;
(b) Property vested in any person under a legal
disability but Paid to or held by another for such person’s
(c) Property vested in any minor pursuant to the
“Colorado Uniform Transfers to Minors Act”, or any pre-
decessor act thereto, or any act having a substantially
Similar legal effect;
(d) The probate of wills;
(e) The granting of letters testamentary, of adminis-
tration, of guardianship, and of conservatorship;
(f) The administration of guardianships of minors
and of mentally competent persons and of conservator-
ships of mentally ill or mentally deficient Persons and of
absentees;
(g) Proceedings under article 23 of title 17 and arti-
cles 10 to 15 of title 27, C.R.S.;
(h) The determination of heirship in probate pro-
ceedings and the devolution of title to Property in pro-
bate Proceedings;
App. 32
(i) Actions on the official bonds of fiduciaries
appointed by it;
(j) The construction of wills;
(k) The administration of testamentary trusts,
except as provided in subsection (2) of this section; and
(1) All other probate matters.
(2) If a testamentary trust is established by the will
of the decedent and if it appears that it was not the
intention of the testator that the court should continue
the administration of the estate after the payment in full
of all debts and legacies except the trust property, the
court shall proceed to final settlement of such estate as in
other cases, order the trust fund or property to be turned
over to the trustee as such, and shall not require the filing
of inventories and accounts, or supervise the administra-
tion of the trust; except that any party in interest of such
trust, including the trustee thereof, may invoke the juris-
diction of the probate court with respect to any matters
pertaining to the administration or distribution of such
trust or to construe the will under which it was estab-
lished.
(3) The court has jurisdiction to determine every
legal and equitable question arising in connection with
decedents’, wards’, and absentees’ estates, so far as the
question concerns any person who is before the court by
reason of any asserted right in any of the property of the
estate or by reason of any asserted obligation to the
estate, including, without limiting the generality of the
foregoing, the jurisdiction:
or en a a no
App. 33
(a) To give full and complete legal and equitable
relief in any case in which it is alleged that the decedent
breached an agreement to make or not to make a will;
(b) In any case in which a district court could grant
such relief in a separate action brought therein, to impose
Or raise a trust with respect to any of the Property of the
decedent or any property in the name of the decedent,
individually or in any other capacity, in any case in which
the demand for such relief arises in connection with the
administration of the estate of a decedent:
(c) To partition any of the real or Personal property
of any estate in connection with the settlement thereof.
(5) The court has jurisdiction to determine every
legal and equitable question arising out of or in connec-
tion with express trusts.
(6) The provisions of articles 10 to 20 of title 15,
article 23 of title 17, and articles 10 to 15 of title 27, C.R.S.,
App. 34
(7) With respect to any trust established by or for an
individual with his or her assets, income, or property of
any kind, notwithstanding any statutory provision to the
contrary, the court shall not authorize, direct, or ratify
any trust that either has the effect of qualifying or pur-
ports to qualify the trust beneficiary for federal supple-
mental security income, or public or medical assistance
pursuant to title 26, C.R.S., unless the trust meets the
criteria set forth in sections 15-14-409.6 to 15-14-409.9,
C.R.S., and any rule adopted by the medical services
board pursuant to section 26-4-506.6, C.R.S.
App. 35
APPENDIX M
Colorado Rules of Ciyj] Procedure, Rule 1. Scope of
Rules
(a) Procedure Governed. These rules govern the pro-
cedure in the Supreme court, court of appeals, district
court and superior courts and in the juvenile and probate
courts of the City and County of Denver, in all actions,
Suits and Proceedings of a civil nature, whether cogniza-
ble as cases at law or in equity, and in all special statutory
proceedings, with the exceptions stated in Rule 81. They
shall be liberally construed to secure the just, speedy, and
inexpensive determination of every action. Rules of civil
procedure governing county courts shall be in accordance
with Chapter 25 of this volume. Rules of Procedure gov-
erning probate courts and probate Proceedings in the
district courts shall be in accordance with these rules and
Chapter 27 of this volume. (In case of conflict between
rules, those set forth in Chapter 27 shall control.) Rules of
Procedure governing juvenile courts and juvenile pro-
ceedings in the district courts shall be in accordance with
these rules and Chapter 28 made effective on the same
date as these rules. In case of conflict between rules those
set forth in Chapter 28 shall control. Rules of Procedure
in Municipal Courts are in Chapter 30.
(b) Effective Date. These rules will take effect on April
1, 1970, and thereafter al] laws in conflict therewith shall
be of no further force or effect. They govern all proceed-
ings in actions brought after they take effect and also all
further Proceedings in actions then Pending, except to the
extent that in the opinion of the court their application in
a particular action pending when the rules take effect
App. 36
would not be feasible or would work injustice, in which
event the former procedure applies.
(c) How Known and Cited. These rules shall be known
and cited as the Colorado Rules of Civil Procedure, or
Cie
Colorado Rules of Civil Procedure, Rule 22. Inter-
pleader
(1) Persons having claims against the plaintiff may be
joined as defendants and required to interplead when
their claims are such that the plaintiff is or may be
exposed to double or multiple liability. It is not ground
for objection to the joinder that the claims of the several
claimants or the titles on which their claims depend do
not have a common origin or are not identical but are
adverse to and independent of one another, or that the
plaintiff avers that he is not liable in whole or in part to
any or all of the claimants. A defendant exposed to simi-
lar liability may obtain such interpleader by way of cross
claim or counterclaim. The provisions of this Rule supple-
ment and do not in any way limit the joinder of parties
permitted in Rule 20.
(2) In any civil action of interpleader, a district
court may enter its order restraining all claimants from
instituting or prosecuting any proceeding in any court of
this state affecting the property, instrument, or obligation
involved in the interpleader action until further order of
the court. Such district court shall hear and determine the
App. 37
case, and may discharge the plaintiff from further lia-
bility, make the injunction permanent, and make all
appropriate orders to enforce its judgment.
Colorado Rules of Civil Procedure, Rule 82. Jurisdiction
Unaffected
These rules shall not be construed to extend or limit the
jurisdiction of any court.
App. 38
APPENDIX N
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 97-S-463
JOSEPH A. VENTO
Plaintiff,
vs.
COLORADO NATIONAL BANK, C. JEAN STEWART,
DAVID W. STARK, and JACK M. MERRITTS,
Defendants.
AFFIDAVIT OF DAVID W. STARK
David W. Stark, being first duly sworn, states as
follows:
1. Iam an attorney licensed to practice law in Colo-
rado. I represent and have represented Colorado National
Bank (“CNB”) in connection with various legal actions
involving Joseph A. Vento since 1987, and as such, have
personal knowledge of the matters contained in this affi-
davit.
2. In 1968, the Joseph A. Vento Trust, the Dominic
A. Vento Trust, the Irene C. Coulter Trust and the Cecilia
DeFellippie Trust became co-owners of an undivided one-
quarter interest in coal mining property in Fremont
County, Colorado. CNB and its predecessors (the First
National Bank of Pueblo, which became Colorado
National Bank-Pueblo, which became CNB) acted as the
sole Trustee of each of the four trusts which owned the
coal mining property.
App. 39
3. On or about September 8, 1987, Joseph A. Vento
and Cecilia DeFellippie filed an action against CNB’s
predecessor asserting breach of fiduciary duty in manag-
ing and administering their trusts and the Trust property
(the “1987 Action”). On June 15, 1993, the plaintiffs in the
1987 Action each obtained a judgment against CNB in the
amount of $931,962.50 (the “Judgments”). The trial court
also awarded costs and interest at a rate of 8% from
March 22, 1985. The amount of the Judgments, including
pre- and post-judgment interest, was approximately
$4,347,307.48 as of January 3, 1996. CNB unsuccessfully
appealed the Judgments. The Colorado Supreme Court
denied CNB’s petition for certiorari on December 11,
1995.
4. In June 1994, the beneficiaries of the Irene i.
Coulter Trust and the Dominic A. Vento Trust sued CNB
and Joseph A. Vento in the Denver District Court, alleg-
ing among other claims breach of fiduciary duty and
negligence, because they were not included in or advised
of the 1987 Action. These beneficiaries also filed an action
against me, my law firm, and other attorneys who
worked on the 1987 Action, based on the same allega-
tions. CNB settled with the plaintiffs in that case, and
Joseph A. Vento prevailed on the claims against him
following a jury trial in April 1996.
5. On or about December 22, 1995, Linda Saunders
filed an action, as Personal Representative of the Estate of
Cecilia DeFellippie in the District Court, Pueblo County,
Colorado in which Ms. Saunders alleges that a dispute
exists regarding the division of proceeds of the Judg-
ments between the plaintiffs in the 1987 Action and
Wesley Kettelkamp, who acted as attorney for plaintiffs
App. 40
in the 1987 Action. Mr. Kettelkamp claims entitlement to
a portion of the proceeds of the Judgments for payment
of legal services he rendered to Plaintiff and Cecilia
DeFellippie in the 1987 Action.
6. Following the denial of CNB’s petition for cer-
tiorari, CNB received or became aware of letters from the
beneficiaries of the Irene C. Coulter and Dominic A.
Vento Trusts, as well as from attorneys for Ms. Saunders
and Mr. Kettelkamp, all claiming some interest in the
proceeds of the Judgments. On December 29, 1995, CNB
filed an action in the Denver Probate Court, Case No. 95
PR 2379 (the “Interpleader Action”) in response to these
competing claims, and in order to satisfy the Judgments
entered in the 1987 Action.
7. On January 3, 1996, the Denver Probate Court
entered an order in the Interpleader Action directing
CNB to transfer to an account at Norwest Bank approxi-
mately $4.4 million, representing the amount of the Judg-
ments against CNB, plus costs awarded and interest
accrued as of January 3, 1996. The order provided that
“upon transfer of the Judgment amount .. . CNB shall be
considered to have satisfied the Judgment...” A certi-
fied copy of this order is attached to Defendants Colo-
rado National Bank and David W. Stark’s Motion to
Dismiss, or in the Alternative, Motion for Summary Judg-
ment (“Motion”) as Exhibit B. Prior to January 3, 1996, 1
provided Mr. Vento and his counsel, Mr. Barber with
copies of the Complaint and Motion in the Interpleader
Action. I asked Mr. Vento if he would accept service of
the complaint in the Interpleader Action, but he did not
agree to do so.
App. 41
8. Mr. Vento has made six separate requests to the
Denver Probate Court itself in the Interpleader Action to
overturn the Denver Probate Court’s January 3 ruling:
a.
Motion to Change Venue, filed January 8,
1996, denied April 26, 1996;
Motion to Vacate, filed January 8, 1996,
denied April 26, 1996;
Renewed Motion to Change Venue, filed Jan-
uary 25, 1996, denied April 26, 1996;
Motion for Relief from January 3 Order on
Interpleader, filed February 8, 1996, denied
April 26, 1996; and
Objection By Defendant Joseph A. Vento to
CNB Being Discharged From All Further Lia-
bility and Dismissed From This Case; Affir-
matively for a Motion for an Order to
Dismiss this Case, or Alternatively for an
Order Vacating or Dissolving the Preliminary
or Temporary Injunction, filed October 18,
1996, and denied December 13, 1996; and
Amended Answer of Joseph A. Vento (alleg-
ing lack of due process as an affirmative
defense) filed September 25, 1996.
A certified copy of the Register of Actions in the
Interpleader Action is attached to the Motion as Exhibit C.
9. In response to the Denver Probate Court’s Janu-
ary 3 order, Mr. Vento applied to the Colorado Supreme
Court for Writs of Prohibition and Mandamus against the
Denver Probate Court on June 20, 1996, and the petition
was denied on June 27, 1996. Mr. Vento also appealed the
April 26, 1996 order of the Denver Probate Court, which
affirmed its January 3, 1996 Order, to the Colorado Court
App. 42
of Appeals on July 26, 1996, and the appeal was dis-
missed, with prejudice, on August 9, 1996.
10. On April 26, 1996, The Honorable Patti F.
O’Rourke denied Vento’s request that she hold CNB in
contempt in the 1987 Action for CNB’s alleged failure to
pay the Judgments, and ruled that the jurisdiction of the
Denver Probate Court was a question that only the
Denver Probate Court could decide. A certified copy of
Judge O’Rourke’s Order on Citation for Contempt is
attached to the Motion as Exhibit D.
11. The Honorable Rosalie Vigna granted summary
judgment in the Pueblo Action on April 1, 1997, ruling
that CNB satisfied the Judgments in the Interpleader
Action, and that Vento’s claims were barred by collateral
estoppel. A certified copy of Judge Vigna’s Summary
Judgment Order is attached to the Motion as Exhibit E.
12. Vento has now moved to disqualify or recuse
Judge Rice trom the Interpleader Action, less than twenty
days prior to the April 28, 1997 trial date. A copy of
Vento’s Motion to Disqualify, or Alternatively, for
Recusal, is attached to the Motion as Exhibit F.
/s/ David W. Stark
David W. Stark
App. 43
STATE OF COLORADO )
) SS.
COUNTY OF DENVER )
I hereby certify that the foregoing Affidavit was sub-
scribed and sworn to before me on this 21st day of April,
1997.
WITNESS my official hand and seal.
My commission expires: 9-27-98.
/s/ Diana Frogge
Notary Public
[SEAL]
App. 44
APPENDIX O
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOSEPH A. VENTO,
Plaintiff-Appeliant,
v. No. 98-1236
)
)
)
)
COLORADO NATIONAL BANK; ?
C. JEAN STEWART; )
DAVID W. STARK;
JACK M. MERRITTS, .
)
Defendants-Appellees.
OPENING BRIEF OF PLAINTIFF-APPELLANT
JOSEPH A. VENTO
Appeal From The United States District Court
For The District Of Colorado,
Case No. 97-S-463
/s/
Joseph A. Vento, #637
Pro se
102 S. Tejon, Suite 1100
Colorado Springs, CO 80903
(719) 578-3329
App. 45
TABLE OF CONTENTS
AUTHORITIES PAGE
STATEMENT OF SUBJECT MATTER AND APPEL-
LATE JURISDICTION 2.0... ccccccccccccccececee.
STATEMENT OF THE ISSUES PRESENTED FOR
chats sernuilh Ee RE:
(1) The Nature of the Case.......................
(2) The Course of Proceedings and Disposition In
WO I Py on ves ceduceevacvevseecen...
(3) Statement of the Facts ........................
1. The United States District Court For The District Of
Colorado Erred In Granting The Motions To Dismiss
Of The Defendant Colorado National Bank, Defén-
dant C. Jean Stewart, Defendant David W. Start, and
Defendant Jack M. Merritts......................
2. The District Court Erred In Finding That Appel-
lee C. Jean Stewart As The Denver Probate Judge
Had Jurisdiction Over The Interpleader Action
Hearing On January 3, 1996, In The Denver Pro-
bate Court In Case No. 95 PR 2379............
3. The District Court Erred In Granting The Motions
To Dismiss Without Considering That The Defen-
dants Acted To Deprive The Appellant Vento Of
His Property Without Due Process Of Law In The
Interpleader Proceeding In The Denver Probate
RNC 6shaUibctedssdnlnnse dun ade cue. aca, os
10
11
21
App. 46
AUTHORITIES
Table of Cases
Adickes v. S. H. Kress & Co., 398 US 144, 90 S Ct
i e oe PF Be ere ere 15
Ament v. Commonwealth Nat. Bank, 404 F.Supp. 911
CRUE a vuscucevvasSea0uUCs Nada tresesenucocyces cabs’ 15
Anderson v. Pinkett, 439 F.2d 619 (1971).............. 23
Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381 (1985) .... 16
Bounds v. Smith, 430 US 817, 917 S Ct 1491, 52 L.Ed
De Fe GRR OO I rahi wa enone nce cede vunseeane 0644000 11
Brucar v. Ruben, 638 F.2d 987 (1980)................. 17
Coleman v. Turpen, 697 F.2d 1341 (10th Cir. 1983)....12, 29
Conley v. Gibson, 355 US 41, 78 S Ct 99, 2 L.Ed 2d
OD I aac decease aiee eee iie iees 11
Crabtree v. Muchmore, 904 F.2d 1475 (10th Cir.
FOSicvcceendebene ss lkkcceccesec cde ctlocteen 14, 19
Daniels v. Williams, 474 US at 441, 1065 Ct 662, 88
RS F FO SE. RS enn ee 30
Davis v. Adams, 328 S.W.2d 851 (1965)............... 23
Dennis v. Sparks, 449 US 24, 101 S Ct 183, 66 L.Ed
es Ss OE so erGees fae cur bua c leces cs vane oc 15
Dykes v. Hosemann, 743 F.2d 1488 (1984).......... a a
Faulkner v. American Casualty, 584 A.2d 734 (1991) .... 31
First National Bank of Denver v. District Court, 652
rr Pree rrr Peer 27
Flagg Brothers, Inc. v. Brooks, 436 US 149 98 S Ct
57am, OO Le BO BBD CUOTE)... cece csccessvcntcecess 20
Garrett v. Garrett, 490 P.2d 313 (Colo. App. 1971) .... 27
Rae tia casa a a ce cen
App. 47
Hrabczuk v. John Lucas Landscaping, 888 P.2d 367
Sigs aro oa ROCCO ee ae 27
Hylton v. Colo. Spgs, 505 P.2d 26 (Colo. App. 1973) .... 28
In re Krystal, 584 A.2d 672 OP er Sisevevid. cae 23
In re Kus, 356 N.W.2d 23 So eT ee 23
In re Marriage of Stroud, 631 P.2d 168 (Colo. App.
RES iseieivcsiscasiveve 22
In re Milliman’s Estate, 406 P.2d 873 (a 23
Jacobs, Visconsi & Jacobs v. City of Lawrence, 927 F.
2d 1111 (10th Cir. siege ee PIA 10
Jeffries v. Turkey Run Consolidated School District,
Be fen cciiescicerstcce 30
Lee v. Town of Estes Park, Colo., 820 F.2d 1112 (10th
Eres ed se disviess sce... 14
Longshore v. City of Homewood, 171 S.2d 453 (1965) .... 23
Lugar v. Edmondson Oil Co., 457 US 992, 1025 Ct
2744, 73 L. Ed 2d 482 i. | re ---.12, 15, 16
Matter of Mahoney Estate, 396 N.W.2d 494 (1986)... __ 23
McKee v. Heggy, 703 F.2d 479 (10th Cir. 1983)... 32
Miller v. City of Mission, Kan., 705 F.2d 368 (1983)... . 32
Monument Builders v. American Cemetery Assn., 891
F.2d 1473 (10th Cir. sae sao ll
Mullane v. Central Hanover Bank and Trust Co , 339
US 396 aS he 32
Norton v. Liddell, 620 F2d 1375 (10th Cir 1980)...15, 17
Paine, Webber, Jackson and Curtis, Inc. v. Adams, 718
P.2d 508 (Colo. vteina ba eer ee TO ae 22
App. 48
Parratt v. Taylor, 451 US 527, 68 L.Ed 2d 420, 101S
GE Fe Cee ac crn cescencescesccctsnteedeticenes 33
People v. Jones, 631 P.2d 1132 (Colo. 1981)........... 27
People v. Kniss, 144 Colo. 351, 357 P.2d 352 (1960) .... 25
People in the Interest of Maddox, 597 P.2d 573 (Colo.
PEPE n ecerecavusavescsvdscceseeecessesessegada viene 27
Picking v. Pennsylvania R. Co., 5 F.R.D. 76 (1946)..... 20
Pierce v. United States, 252 US 239, 250 (1919) ....... 19
Regina v. Murphy, 8 C. & P. 297, 310 (1837) (Cool-
MOGI, BP oc cvccccvctcvccccacveccdsccvecesvesoeces 19
Richardson v. Fleming, 651 F.2d 366 (1981) ........... 17
Sparkman v. McFarlin, 601 F.2d 261 (1979) ........... 17
Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133, 1147
Ph but ddaseeudeeedéie sein shen seeelin ibabevase 19
Tulsa Professional Collection Services v. Pape, 485 US
478, 486, 108 S Ct 1340, 1345, 99 L.Ed 2d 565
PD ccebsced wubeketusede $ededdeudeedearsun acaeek 17
United States v. Price, 380 US 784, 86 S Ct 1152, 16
i 2 2 adsl. fee telt ee hadainawnekbe me Oa 15
Voytka v. Ramada Inn of Altantic City, 445 F.Supp.
Paty See COPED oc vecsvdngnksédesevadsesccaesenvess 15
Walker Process Equipment, Inc. v. Food Machinery
Chemical Corp., 382 US 172, 174 (1965) ............ 12
Westinghouse Electric Corp. v. United Elec. R. & M.
Workers, 99 F.Supp. 597 (1951) .........0--eeeeeeee 31
Zinermon v. Burch, 498 US 113, 110 S Ct 975, 108
* § 68 % ££ £4x°=P Oe eer |
ite eemnersn see peers
Sa
App. 49
Statutes
Colorado Revised Statutes § gE 21, 22
Ty ee Re te eee! Oe 1
42 U.S.C. § 1983....._. 1, 2, 9, 11, 12, 14, 15, 17, 19, 29
FS Ber shcteveitrecset ee a
Rules
Fed. R. Civ. P. PEN sh wns's Vennuiiny series ncies x. 2
Fed. R. Civ. P. WOES ood v cs erescsccy,. 2, 9, 10, 11, 12
Colo. Appellate Rule OF 9466 +8 een dn esnnnenien de. don 27
MO NMUM Bitrsirnciier coviisiecspustecs, 25
Colo. R. Civ. P22.......0.....0 6, 7, 20, 22, 23, 24
seks Wcvig sing Met LT ee 25
a ER Basse sce viedeccxdbvsiseeds 0... 3
Fed. R. Civ. P WO + Hs erevevssescnccsccsnecesee.,.. 21
aes ete ining ere 2
Other Authorities
20 Am Jur 2d Courts § 110.....0.00000000......0. 28
Colorado Constitution, Article VI Section | eee 9, 21
United States Constitution, Fourteenth Amend-
ret beter ire Mivustelts [1.05 15, 16, 17, 29, 32
Wright, Miller & Kane, Federal Practice and Pro-
cedure, Civil 2d douaid as 11
App. 50
STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION
The District Court had subject matter jurisdiction
pursuant to 42 U.S.C. §1983 and 42 U.S.C. §1988. The
judgment appealed from is a final order. This Court has
jurisdiction pursuant to 28 U.S.C. §1291. The Order of
June 4, 1998, by the District Court was entered on June 8,
1998. The Notice of Appeal was filed on June 22, 1998,
which renders it timely under Rule 4(b) of Fed. R. App. P.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
(1) Whether The United States District Court For The
District Of Colorado Erred In Granting The Motion To
Dismiss Of Each Of The Appellees, Colorado National
Bank, C. Jean Stewart, David W. Stark and Jack M.
Merritts?
(2) Whether The District Court Erred In Finding
That Appellee C. Jean Stewart As The Denver Probate
Judge Had Jurisdiction Over The Interpleader Action
Hearing On January 3, 1966, In The Denver Probate
Court In Case No. 95 PR 2379?
(3) Whether The District Court Erred In Granting
The Motions To Dismiss Without Considering That The
Appellees Acted To Deprive The Appellant Joseph A.
Vento Of His Property Without Due Process Of Law In
The Interpleader Action In The Denver Probate Court
In Case No. 95 PR 2379?
App. 51
STATEMENT OF THE CASE
(1) The Nature of the Case
This is a civil rights case pursuant to 42 U.S.C.
§1983.
(2) The Course of Proceedings and Disposition In
the Court Below
On March 7, 1997, Joseph A. Vento (Vento) as plaintiff
filed an action under 42 U.S.C. §1983 against Colorado
National Bank (CNB), C. Jean Stewart (Judge Stewart),
David W. Stark, an attorney (Stark), and Jack M. Merritts,
an attorney (Merritts) in the United States District Court
for the District of Colorado, Civil Action No. 97-S-463.
On April 1, 1997, Merritts filed a motion to dismiss
for failure to state a claim for which relief can be granted
Pursuant to Rule 12(b)(6) of Fed. R. Civ. P.
On April 22, 1997, CNB and Stark filed a motion to
dismiss pursuant to Fed. R. Ciy. P 12(b)(1) and 12(b)(6),
or in the alternative, motion for summary judgment pur-
suant to Fed. R. Civ. P. 56.
On June 17, 1997, Judge Stewart filed a motion to
dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) of Fed. R.
Civ. P.
On July 21, 1997, the District Court ordered that the
Court’s July 9, 1997, Order of Reference to Magistrate
Judge Bruce D. Pringle shall include the foregoing
motions to dismiss.
On April 28, 1998 the Recommendation of United
States Magistrate Judge Bruce D. Pringle was filed. He
recommended that all three of the foregoing motions to
App. 52
dismiss be granted; that the case be dismissed with preju-
dice; and that the motions for attorney fees and expenses
under Fed. R. Civ. P. 11 be granted to CNB and Stark; and
that the motion for attorney fees by Merritts under 42
U.S.C. §1988 be granted.
On June 4, 1998, United States District Judge Daniel
B. Spaar agreed with the Recommendation of Magistrate
Judge Bruce D. Pringle in its entirety and Ordered:
1. Defendant Jack M. Merritts’ Motion to Dismiss
(filed April 1, 1997) is GRANTED.
2. Defendants Colorado National Bank’s and David
W. Stark’s Motion to Dismiss (filed April 22, 1997) is
GRANTED.
3. Defendant C. Jean Stewart’s Motion to Dismiss
(filed June 17, 1997) is GRANTED.
4. Defendants Colorado National Bank’s and David
W. Stark’s Motion for Injunction Prohibiting Joseph Vento
from Filing Additional Complaints Against David W.
Stark, Colorado National Bank, or Any of Their Agents or
Attorneys Without Leave of Court (filed April 22, 1997) is
DENIED.
5. Defendant C. Jean Stewart’s Motion to Stay Dis-
covery (filed June 17, 1997) is DENIED as moot.
6. Defendants Colorado National Bank’s and David
W. Stark’s Motion for Sanctions Under Fed. R. Civ. P. 11
(filed April 29, 1997) is GRANTED. This matter is hereby
referred back to the Magistrate Judge for determination
of the amount of reasonable attorney fees and expenses to
be awarded.
Wisteiccommemenasneess tues: 5s ene es mmr
App. 53
7. Defendant Jack M. Merritts’ request for costs,
including reasonable attorney fees pursuant to 42 U.S.C.
§1988 (made April 1, 1997) is GRANTED. This matter is
hereby referred back to the Magistrate Judge for deter-
mination of the amount of reasonable attorney fees and
expenses to be awarded.
8. Defendant Stewart's request for costs and attor-
ney fees (made June 17, 1997) is DENIED.
9. Plaintiff Vento’s request for attorney fees for
responding to the Motion for Injunction (made May 21,
1997) is DENIED.
10. This civil action is dismissed with Prejudice.
On June 22, 1998, Vento filed a Notice of Appeal to
the United States Court of Appeals for the Tenth Circuit.
(3) Statement of the Facts
On September 3, 1987, Vento and his sister, Cecilia De
Fellippie (she died on December 1, 1995), filed an action
in the Pueblo County District Court, Civil Action No. 87
CV 867, against Colorado National Bank-Pueblo (CNB-
Pueblo) for breach of fiduciary duty. After a long span
including two trials, on June 15, 1993, District Court
Judge Patti F. O’Rourke entered judgment in favor of
Vento and his sister individually and against CNB-Pueblo
in its corporate capacity. In that Order of Judgment Vento
was granted a judgment for damages to certain seams of
coal property held in trust in accordance with his propor-
tionate interest. Later, the judgment was amended to
include prejudgment interest from March 22, 1985. His
Sister was granted the same judgment.
App. 54
CNB-Pueblo initiated an appeal to the Colorado
Court of Appeals and in order to obtain a stay of execu-
tion during the appeal moved for an order staying execu-
tion of the District Court’s judgment entered on June 15,
1993, stating its intention to file a letter of credit as a
supersedeas bond. Vento and his sister objected to the
filing of a letter of credit as a supersedeas bond instead of
filing a supersedeas bond. A hearing was held on Sep-
tember 16, 1993, before Judge O’Rourke, and on Septem-
ber 24, 1993, she granted CNB-Pueblo’s motion for stay of
execution upon Colorado National Bank (CNB) as the
parent of CNB-Pueblo filing its own (CNB) letter of credit
| in the form submitted by CNB.
CNB-Pueblo, by this time having merged into CNB,
appealed the judgments to the Colorado Court of Appeals
where they were affirmed. Thereafter on December 11,
1995, the Colorado Supreme Court denied CNB-Pueblo’s
petition for writ of certiorari. Then the Colorado Court of
Appeals issued its mandate to the Pueblo County District
Court on January 5, 1996.
On December 21, 1995, the defendant Jack M. Mer-
ritts (Merritts) wrote a letter (Appendix, page 94) to
Thomas J. Bissell, Assistant General Counsel for CNB,
objecting to any distribution of funds by CNB to Vento
because of the unsuccessful appeal by CNB of the judg-
ment in the 1987 Action. In that letter Merritts demands
that CNB immediately take all appropriate action includ-
ing seeking an order of the appropriate court to deposit
the funds that would otherwise be paid to Vento (under
the judgment of June 15, 1993, in the Pueblo County
District Court) in an account with a national bank in
Denver. The letter ends with the statement that, “Mr.
a
App. 55
Siegel requested that I address this letter directly to you.”
Mr. Siegel is Kenneth B. Siegel, one of the attorneys for
the defendants CNB and Stark in this action.
On December 29, 1995, CNB filed a Complaint for
Interpleader and Injunctive Relief in the Denver Probate
Court, Case No. 95 PR 2379, with respect to the judg-
ments of the Pueblo County District Court of June 15,
1993, or the proceeds therefrom. The caption of the case
in the Denver Probate Court was: Colorado National Bank,
Plaintiff, v. Joseph A. Vento, Linda Saunders, Personal Repre-
sentative of the Estate of Cecilia De Fellippie, Irene C. Coulter,
Richard G. Vento, Angelina Vento, Marihelen Vento and
Wesley C. Kettelkamp, Jr.
The interpleader action was based on the following
three matters: (1) a claim of Vento’s attorney, W.C. Ket-
telkamp, Jr., to some portion of the judgments; (2) a
pending action by the Estate of Cecilia De Fellippie, in
the Pueblo County District Court; and (3) the letter of
Merritts dated December 21, 1995, mentioned above and
set forth in Paragraph 14 of the Complaint. Then in the
prayer of the Complaint CNB asks that the Denver Pro-
bate Court Satisfy judgments of the Pueblo County Dis-
trict Court.
The Denver Probate Court only has one judge who at
that time was Judge Stewart. The record shows a prior
relationship between CNB and Judge Stewart (Appendix,
Page 93). Without disclosing that in Case No. 95 PR 2379
as she had in a recent companion case, and a motion for
disqualification filed, she recused herself but without
first rescinding the Order on Interpleader Petition
(Appendix, Page 26) she issued on January 3, 1996.
App. 56
Under Rule 22 of the Colorado Rules of Civil Pro-
cedure, the interpleader rule, CNB joined the aforesaid
seven defendants in the action and then the Denver Pro-
bate Court required them to interplead. This included
Vento. On January 5, 1996, the Colorado Court of Appeals
in Case No. 93 CA 1375 issued its mandate ordering the
judgment is affirmed in Case No. 87 CV 867 in the Pueblo
County District Court. All that remained to occur in the
Pueblo County District Court was for the judgments to be
paid. Instead of paying off the judgments to Vento and
his sister and ending the litigation, CNB chose to inter-
plead the amounts of the Pueblo County District Court
judgments in the Denver Probate Court in Case No. 95 PR
2379. Of the seven parties joined as defendants by CNB
only two were judgment creditors, Vento and his sister's
estate. The other five parties were joined as defendants
because CNB alleged that each of them asserted claims
against the judgments or the proceeds therefrom,
although none of them were judgment creditors with
respect to the Pueblo County District Court judgments.
Rule 22 of the Colorado Rules of Civil Procedure provides
that, “persons having claims against the plaintiff (CNB)
may be joined as defendants. . . . That Rule 22 states
nothing about joining persons alleging claims against a
judgment on the proceeds therefrom.
After CNB’s interpleader complaint was filed on
December 29, 1995, in the Denver Probate Court, a hear-
ing was set on January 3, 1996. On that same day after a
non-evidentiary hearing that lasted for about one and on-
[sic] half hours, Judge Stewart, the Denver Probate Court
Judge, entered an Order on Interpleader Petition (Appen-
dix, page 26). Notice to Vento of that hearing at 10:30 a.m.
App. 57
on January 3, 1996, was given to him by serving him with
Process and notice of the hearing on January 3, 1996, at
his home in Pueblo, Colorado, which is more than 100
miles from Denver, at 7:45 a.m. On January 3, 1996, the
same day as the hearing.
On or about 9:15 a.m. on January 3, 1996, Vento
called the law firm of Dufford & Brown, PC. in Denver
and asked them to appear at that 10:30 a.m. hearing on
January 3, 1996, on his behalf. Upon appearing for Vento
at that hearing, the said law firm through Phillip D.
Barber requested a continuance, which request was
abruptly denied (Appendix, pages 35-36).
In that Order on Interpleader Petition (Appendix,
page 26) on January 3, 1996, the Denver Probate Court
Purported to satisfy the judgment obtained against CNB-
Pueblo on June 15, 1993, in Civil Action No. 87 CV 867
without any payments being made to the judgment credi-
tors and before the Mandate issued out of the Colorado
Court of Appeals on January 5, 1996, affirming the judg-
ment granted in the 1987 action in the Pueblo County
District Court. All of this was done by CNB simply
depositing the judgment amounts with the Denver Pro-
bate Court in the interpleader action in Case No. 95 PR
2379. The seven defendants were then ordered to inter-
plead and file claims for the interpleaded funds. Even
though his judgment had been affirmed by the appellate
courts of Colorado, Vento had to once again compete for
the interpleaded funds with six other defendants.
App. 58
SUMMARY OF ARGUMENT
Vento respectfully submits that the District Court's
Order of June 4, 1998 (Appendix, page 115), granting the
Motions to Dismiss of Defendant Jack M. Merritts, Defen-
dants Colorado National Bank and David W. Stark, and
Defendant C. Jean Stewart is erroneous and should be
reversed for the following reasons and each of them:
1. The District Court erroneously dismissed Vento’s
Complaint for failure to state a claim upon which relief
can be granted pursuant to Rule 12(b)(6) of Fed. R. Civ. P.
The Complaint together with Exhibits A through H
attached to and made a part thereof adequately pleads
facts to state a claim for relief against the defendants.
There is alleged in Count I of the Complaint (Appendix,
page 10) a claim for relief against the defendants based
upon the private defendants being jointly engaged and
acting together with Judge Stewart and willfully partici-
pating in joint activity with Judge Stewart. Alternately,
there is alleged in Count II of the Complaint (Appendix,
page 22) a claim for relief based upon the defendants
being involved in a conspiracy.
2. The District Court held that Judge Stewart had
jurisdiction over the interpleader suit because, “Plaintiff
(Vento) fails to understand that the interpleader action
was brought in the Denver Probate Court because the
money owed as a result of the Pueblo District Court
judgment belonged to an express trust.” (Appendix, page
116.) The District Court was erroneous. The judgments
belonged to individuals, Joseph A. Vento and his sister,
Cecilia De Fellippie. Furthermore, Judge Stewart acted
with a complete absence of jurisdiction because, among
3. The District Court held that the Private party
defendants, CNB, Stark and Merritts did not act under
color of state law for Purposes of §1983. The District
Court erred because they jointly engaged with, acted
[sic], causing harm and injury to Vento (Appendix, Pages
19-22; Paragraphs 23-26 of the Complaint). Also, it is
involved in a conspiracy with Judge Stewart (Appendix,
Pages 11-14; Par<graphs 25 and 27-30 of the Complaint).
App. 60
ARGUMENT AND AUTHORITIES
The Standard Of Review
The standard of review for a District Court’s dis-
missal of a complaint pursuant to Rule 12(b)(6) of Fed. R.
Civ. P. for failure to state a claim for relief for which relief
could be granted is reviewed de novo. Jacobs, Visconsi &
Jacobs v. City of Lawrence, 927 F. 2d 1111 (10th Cir. 1991). A
dismissal for failure to state a claim upon which relief
may be granted cannot be upheld “unless it appears
beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.
Conley v. Gibson, 355 US 41, 45-46, 78 S Ct. 99, 101-102, 2
L.Ed 2d 80 (1957). In reviewing such a dismissal, the
appellate court must examine only the pleadings, accept
the factual averments as true and view them in a light
most favorable to the plaintiff. Monument Builders v.
American Cemetery Assn, 891 F.2d 1473, 1476 (10th Cir.
1989).
1. The United States District Court For The District Of
Colorado Erred In Granting The Motions To Dis-
miss Of The Defendant Colorado National Bank,
Defendant C. Jean Steward, Defendant David W.
Stark, And Defendant Jack M. Merritts.
A motion to dismiss brought pursuant to Rule
12(b)(6) of Fed. R. Civ. P. for failure to state a claim upon
which relief can be granted requires the court to deter-
mine whether the plaintiff has pleaded cognizable claims.
The Federal Rules of Civil Procedure do not require a
claimant to set out in detail the facts upon which he bases
his claim. To the contrary, all the Rules require is a short
quately does that.
Two Primary issues in a §1983 action are: (1) whether
the defendants violated the plaintiff’s constitutional
(1) After numerous unsuccessfy] attempts in the
Denver Probate Court, the Pueblo District Court, the
Colorado Court of Appeals and the Colorado Supreme
App. 62
Court to either overturn the interpleader order or obtain
relief from its adverse effects. . . . (Page 3 of the Judge
Magistrate’s Recommendation) (Appendix, page 104).
There were no documents or contents to show or explain
the unsuccessful attempts indicating that this was spin
lifted from the defendants’ motions and briefs.
(2) This expansively worded provision invests the
probate court with at least colorable jurisdiction over
competing claims of several express trusts to a particular
asset or fund. (Page 5 of the Judge Magistrate’s Recom-
mendation) (Appendix, page 106).
(3) “Plaintiff fails to understand that the inter-
pleader action was brought the Denver Probate Court
because “the money owed as a result of the Pueblo Dis-
trict Court judgment belonged to an express trust.” (Page
2 of the District Court Order of June 4, 1998) (Appendix,
page 116). The money owed as a result of the Pueblo
County District Court belonged to Joseph A. Vento and
his sister, Cecilia De Fellippie, individually, because the
judgment was granted to them individually.
(4) “Because Defendant Stewart did not act in the
clear absence of all jurisdiction, she is entitled to absolute
immunity from Plaintiff’s claims based on her rulings
and orders in the interpleader action before the Denver
Probate Court.” (Page 2 of the District Court Order of
June 4, 1998) (Appendix, page 116)
(5) “Plaintiff objects to the Magistrate Judge’s state-
ment of the facts. Upon review, the court is satisfied that
the Magistrate Judge did not materially misstate Plain-
tiff’s factual allegations and that the Magistrate Judge
applied the appropriate standard of review for a motion
App. 63
to dismiss.” (Page 3 of the District Court Order of June 4,
1998) (Appendix, Page 117). The only facts the District
Court should consider are those pleaded in the Com-
plaint.
(6) “This Complaint appears be nothing more than
an attempt to relitigate issues already litigated in the
state courts.” (Page 3 of the District Court Order of June
4, 1998) (Appendix, Page 117).
Vento presented three counts in his Complaint. Count
I alleges a separate claim for ;elief in which private
individuals and a Private entity engage with and act
jointly with state Officials in the challenged action
(Appendix, page 10). Count II alleges a separate claim for
relief for conspiracy (Appendix, Page 22). Count III seeks
Punitive or exemplary damages (Appendix, Page 23).
The District Court did not focus on alternate theories
of recovery and the inability to state claim under one
approach does not preclude consideration of a second
approach. Crabtree v, Muchmore, 904 F.2d 1475, 1480 (10th
Cir. 1990).
The Complaint alternately alleges three different
ways that the private defendants (CNB, Stark and Mer-
ritts) were acting under color of law:
(1) Jointly engaged with, acting jointly, and/or acting
together with Judge Stewart. See Paragraphs 23, 24 and
25 of the Complaint (Appendix, Pages 19-21).
(2) Willful Participant in joint activity with Judge
Stewart. See Paragraphs 15, 16, 17, 19, 23, 24 and 25 of the
Complaint (Appendix, Pages 15 and 19-21).
App. 64
(3) Involvement in a conspiracy with Judge Stewart.
See paragraphs 25 and 27 through 30 of the Complaint
(Appendix, pages 20-23).
Acting Under Color Of Law By
Joint Engagement - Count I
It is well established that private individuals can be
held liable under §1983. In order to hold a private indi-
vidual liable under §1983 it must be shown that the
private person, (a) was jointly engaged with state officials
in the challenged action, or (b) has received significant
aid from state officials, or (c) that the private individual’s
conduct is in some way chargeable to the state. Lee v.
Town of Estes Park, Colo., 820 F. 2d 1112, 1114 (10th Cir.
1987).
Where a plaintiff alleges that the attorney “joined or
cooperated with” or conspired with state officials who
acted under color of state law, state action will exist.
Ament v. Commonwealth Nat. Bank, 404 F. Supp 911, 914 n:6
((1981). In Adickes v. S. H. Kress & Co., 398 US 144, 90S Ct
1598, 26 L.Ed.2d 142 (1970) the Supreme Court reaffirmed
the rule that “private persons jointly engaged with state
officials in the prohibited action are acting “under color
of law” for purposes of §1983. See also, Norton v. Liddell,
620 F.2d 1375, 1378 (10th Cir. 1980). A private person
acting jointly with state officials in the prohibited action
acts under color of low [sic]. United States v. Price, 380 US
784, 86 S Ct 1152, 16 L.Ed 2d 267 (1966).
To act under color of state law for §1983 purposes
does not require that the defendant be an officer of the
state. It is enough that he is a willful participant in joint
App. 65
action with the State or its agents. Private persons, jointly
engaged with state officials in the challenged action, are
acting “under color” of law for purposes of § 1983
actions. Dennis v. Sparks, 449 US 24, 1015S Ct 183, 66 L.Ed
2d 185, 189 (1980).
There is no bright line by which the conduct of
private parties become state action for Purposes of the
Fourteenth Amendment and civil rights statutes. Voytko v.
Ramada Inn of Atlantic City, 445 F.Supp. 315, 321 (1978).
In this case unlike Lugar v. Edmondson Oil Co., 452 US
992 (1982) and similar cases, there was no seizure of the
property in a physical manner or by the act of an officer
of the State taking custody. What we have here is the
private parties putting the Property into the custody of
the law in an interpleader suit and taking it away from
and removing it form [sic] the reach of the plaintiff Vento
through his judgment and interfering with his rights to
execute on the judgment or have his judgment satisfied.
In Lugar v. Edmondson Oil Co., 457 US 992, 102 S Ct
2744, 73 L. Ed 2d 482 (1982), the conduct allegedly caus-
ing the deprivation of a federal right to be fairly attrib-
uted to the State was reflected in a two part approach:
First, the deprivation must be caused (a) by the exercise
of some right or privilege created by the State (in the case
at hand C.R.C.P. 22 - Interpleader) or (b) by a person for
whom the State is responsible, in the case at hand, Judge
Stewart, and second, the party charged with the depriva-
tion be one who fairly may be said to be a state actor.
There is no doubt that Judge Stewart is a state actor
because she is a state official. Defendants CN B, Stark and
Merritts are state actors because they acted together with
App. 66
and were jointly engaged with Judge Stewart and with
each other in causing the deprivation. In Lugar, the
Supreme Court explained that a private party’s joint par-
ticipation with State officials in the seizure of disputed
property is sufficient to characterize that party as a “state
actor” for purposes of the Fourteenth Amendment and
that, “A private party invoking state prejudgment attach-
ment procedure acts under color of law,” and that “The
private use of challenged state procedures with the help
of state officials constitutes state action for purposes of
the Fourteenth Amendment.”
A seizure of property occurs when there is some
meaningful interference with an individual’s possessory
interest in that property. Auster Oil & Gas, Inc. v. Stream,
764 F.2d 381, 388 (1985). In the case at hand these defen-
dants interfered with Vento’s interest in his property by
bringing the interpleader action. When private parties
make use of state procedures with the overt, significant
assistance of state officials, state action may be found.
Tulsa Professional Collection Services v. Pape, 485 US 478,
486, 108 S Ct 1340, 1345, 99 L.Ed 2d 565 (1988).
If the misuse of the legal procedure is so egregious as
to subject the aggrieved individual to a deprivation of
constitutional dimensions and the tort feasor is acting
under color of state law, §1983 may be employed. Norton
v. Liddell, 620 F.2d 1375, 1378 (10th Cir. 1980).
Acting Under Color of Law With
A Conspiracy — Count II
The defendants in challenging the sufficiency of
Vento’s complaint argued that he had failed to state a
App. 67
claim under §1983 since he had failed to allege ade-
quately a conspiracy among the defendants. The involve-
ment of a state judge in a conspiracy plainly provides the
State action essential to show a violation of a plaintiffs
Fourteenth Amendment rights. Sparkman v,. McFarlin, 601
F.2d 261, 263 (1979). A Private party involved in such a
conspiracy, even though not an Official of the state, can be
liable under §1983. Sparkman, supra at page 264. Private
attorneys alleged to have conspired with state officials
may be held liable under §1983. Richardson v. Fleming, 651
F.2d 366, 368 (1981).
Conspiracies are ordinarily clandestine. A fact finder
could reasonably conclude on the basis of Vento’s allega-
tions, “not only that CNB, Stark and Merritts used the
State court Proceedings (the Denver Probate Court) to
produce a constitutional wrong, but that there was agree-
ment between them and Judge Stewart beyond ordinary
request and persuasion by CNB, and that Judge Stewart
invidiously used her office to deprive Vento of a federally
Protected right. Brucar v. Ruben, 638 F.2d 987, 993 (1980).
The following overt acts indicate that a conspiracy
existed between Judge Stewart, CNB, Stark and Merritts:
(1) Under the circumstances then prevailing, Vento
was not given a continuance on January 3, 1996 (Appen-
dix, pages 35-36).
(2) Vento was not given any time to file an answer
or otherwise respond to the complaint (Appendix, Page
13; paragraph 11 of the Complaint).
(3) On page 15 of the transcript of the hearing on
January 3, 1996, in the Denver Probate Court attached as
App. 68
Exhibit B to the Complaint before defendant Stark as
attorney for CNB finished his presentation, Judge Stew-
ard [sic] said, “Mr. Stark, I don’t think there is any
question that the bank is entitled to the relief you asked
for.” (Appendix, page 42)
(4) At page 53 of that transcript, Judge Stewart
stated the following even before the hearing was con-
cluded, “Well, I made a preliminary contract a few
moments before I came on the bench with Norwest Bank
Colorado.” (Appendix, page 79)
(5) The Denver Probate Court on January 3, 1996, in
an Order on Interpleader Petition satisfied a judgment of
the Pueblo County District Court with four or five days
after CNB filed an interpleader action in said Denver
Probate Court on December 29, 1995. At a hearing with-
out any evidence produced, the Denver Probate Court
satisfied that judgment on January 3, 1996 (Appendix,
pages 26-27).
(6) On December 21, 1995, defendant Merritts
demanded that CNB take all appropriate action to seek an
order of an appropriate court to deposit the funds that
would otherwise be paid to Vento in an interest bearing
account (Appendix, pages 94, 95). On January 3, 1996, a
little over ten days after December 21, 1995, defendants
did just that with an interpleader action in the Denver
Probate Court.
(7) The Denver Probate Court issued an Order on
Interpleader Petition on January 3, 1996 (Appendix,
pages 26-27), within a matter of hours after service of
process was made upon Vento (Appendix, pages 12, 13).
App. 69
Though the common design is the essence of the
charge, it is not necessary to prove that the defendants
came together and actually agreed in terms, to have that
design, and to pursue it by common means. If it is shown
that the defendants pursued by their acts the same object,
often by the same means, one performing one part and
another part of the Same, SO as to complete it, with a view
to the attainment of the Same object, the jury will be
justified in the conclusion that they were engaged in a
conspiracy to effect that object. Regina v. Murphy, 8 C. & P.
297, 310 (1837) (Cooleridge, J.). See Pierce v. United States,
252 US 239, 250 (1919).
The facts demonstrate that CNB, Stark and Merritts
acted outside the confines of the normal judicial pro-
cess ... The allegations demonstrate willful Participation
in a joint activity to cause harm and injury to Vento which
would justify characterization of these three defendants
court system in the course of an ordinary lawsuit. See
Crabtree v. Muchmore, 904 F.2d 1475, 1482 (10th Cir. 1990).
This is not a case where a private litigant and attorney
merely brought suit and sought a judicial ruling. See
Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133, 1147 (1986).
These defendants went beyond the concept that, “private
use of state sanctioned Private remedies or Procedures
” See, e.g.,
Flagg Brothers, Inc. v, Brooks, 436 US 149, 98S Ct 1729, 56
There is no apparent reason or legal liability or bene-
fit to CNB that caused it to interplead the funds instead
of paying off the judgments. Rule 22 of the Colorado
App. 70
Rules of Procedure (Interpleader) provides in part that,
“(1) Persons having claims against the plaintiff may be
joined as defendants and required to interplead when
their claims are [sic] such that the plaintiff is or may be
exposed to double or multiple liability.” There is nothing
in the record to show that there were claims against CNB
exposing it to double or multiple liability. CNB’s argu-
ments that there were claims against the judgments is
meaningless.
Inasmuch as there was no basis for an interpleader
action in this matter because there were not two or more
claimants having claims against CNB the plaintiff, there
had to be agreement and concerted action to accomplish
what was done, i.e., for CNB to file an interpleader action
on December 29, 1995, and have the Denver Probate
Court to issue an Order on Interpleader Petition on Janu-
ary 3, 1996 (Appendix, pages 26-27).
The Complaint was sufficiently specific in alleging
that the defendants conspired to do an unlawful act and
set forth facts as to the acts performed by each defendant
in furtherance of the conspiracy, facts as to overt acts in
furtherance of the alleged conspiracy, and facts from
which the court could have seen the damages that natu-
rally would have resulted from the acts stated. See Pick-
ing v. Pennsylvania R. Co., 5 F.R.D. 76 (1946).
App. 71
2. The District Court Erred In Finding That Appel-
lee C. Jean Stewart As The Denver Probate Judge Had
Jurisdiction Over The Interpleader Action Hearing On
January 3, 1996, In The Denver Probate Court In Case
No. 95 PR 2379.
The District Court found that Judge Stewart did not
act in the absence of all jurisdiction for the following
reason, “Plaintiff fails to understand that the interpleader
action was brought in the Denver Probate Court because
the money owed as a result of the Pueblo District Court
judgment belong to an express trust.” (Appendix, page
116). This finding is clearly erroneous under the standard
of review set forth in Rule 52(a) of Fed. R. Civ. P. The
money owed as a result of the Pueblo County District
Court judgment belongs to Plaintiff Vento and his sister
as individuals. No money Owed as a result of the Pueblo
County District Court judgment belonged to an express
trust.
There is no jurisdiction of the interpleader action in
the Denver Probate Court under the Colorado Constitu-
tion or the Colorado statutes. The jurisdiction of the
Denver Probate Court stems from Article VI Section 9(3)
of the Colorado Constitution and C.RS. §13-9-103; Said
Section 9(3) of the Colorado Constitution provides as
follows:
(3) In the city and county of Denver, exclusive
Original jurisdiction in all matters of probate,
settlements of estates of deceased persons,
appointment of guardians, conservators and
administrators, and settlement of their accounts,
the adjudication of the mentally ill, and such
other jurisdiction as may be provided by law
App. 72
shall be vested in a probate court, created by
section 1 of this article, and to which court all of
such jurisdiction of the county court of the city
and county of Denver shall be transferred,
including all pending cases and matters, effec-
tive on the second Tuesday of January, 1965.
The defendants attempt to give the Denver Probate
Court jurisdiction in this matter by relying upon C.R.S.
§13-9-103 as follows:
(1) The probate court of the City and County of
Denver has original and exclusive jurisdiction in said city
and county of:
XXXX
(5) The court has jurisdiction to determine every
legal and equitable question arising out of or in connec-
tion with express trusts.
The action in interpleader in Case No. 95 PR 2379 in
the Denver Probate Court has nothing to do with express
trusts. It is an interpleader action only and all the parties
are either individuals or corporations acting in their cor-
porate capacity. Nor are there any legal or equitable
questions arising out of or in connection with express
trusts.
The Denver Probate Court is a court of limited juris-
diction and does not have jurisdiction over the inter-
pleader action under Rule 22 of the Colorado Rules of
Civil Procedure in Case No. 95 PR 2379. Subject matter
jurisdiction concerns the Court’s authority to deal with
the class of cases in which it renders judgment and refer-
ence must be made to the nature of the claim and the
relief sought. Paine, Webber, Jackson and Curtis, Inc. v.
App. 73
Adams, 718 P.2d 508 (Colo. 1986); In Re Marriage of Stroud,
631 P.2d 168 (Colo. App. 1981). In Case No. 95 PR 2379 in
the Denver Probate Court, the nature of the claim was
one dealing with interpleader and the relief sought was
interpleader and nothing else.
Nor did the Denver Probate Court have the power or
authority to render the Order on Interpleader Petition on
January 3, 1997, in Case No. 95 PR 2379 (Appendix, pages
26, 27).
Probate courts are courts of limited jurisdiction and
have only that jurisdiction which is expressly given by
Statute, and neither the probate judge nor the probate
court can have any greater authority than that conferred
by statute. Longshore v. City of Homewood, 171 $.2d 453
(1965). A probate court is a court of limited authority and
if it purports to act outside its statutory jurisdiction, its
decrees are null and void. In Re Milliman’s Estate, 406 P.2
873 (Ariz. App. 1965); In Re Krystal, 584 A.2d 672 (1991).
Probate courts do not become courts of general jurisdic-
tion just because an estate is involved. Matter of Mahoney
Trust, 396 N.W.2d 494 (Mich. App. 1986); In Re Kus, 356
N.W.2d 23 (Mich. App. 1984). Illustration of a clear lack
of subject matter jurisdiction would be a situation where
a probate judge, with jurisdiction over wills and estates,
would try a criminal case. The probate judge would not
be immune from suit. Dykes v. Hosemann, 743 F.2d 1488,
1495 (1984). It cannot, without more, be taken as an
authoritative abandonment of the long established doc-
trine in this jurisdiction that the modes of proceeding of
the probate court make it an inappropriate forum for the
resolution of conflicts over title to property, and one
which is, in any event, not Statutorily endowed with such
App. 74
authority. Anderson v. Pinkett, 439 F.2d 619 (1971). The
probate court is not the proper forum to enforce contrac-
tual rights. Davis v. Adams, 328 S.W.2d 851 (1965).
There is no jurisdiction under the Colorado Rules of
Civil Procedure or the Colorado Rules of Probate Pro-
cedure for interpleader actions in the Denver Probate
Court.
Rule 22(2) of the Colorado Rules of Civil Procedure
provides in part, “In any civil action of interpleader, a
district court (emphasis added) may enter its order. . . .
Such district court (emphasis added) shall hear and deter-
mine the case. The whole of Rule 22 is as follows:
“Rule 22. Interpleader
(1) Persons having claims against the plaintiff may
be joined as defendants and required to interplead when
their claims are such that the plaintiff is or may be
exposed to double or multiple liability. It is not ground
for objection to the joinder that the claims of the several
claimants or the titles on which their claims depend do
not have a common origin or are not identical but are
adverse to and independent of one another, or that the
plaintiff avers that he is not liable in whole or in part to
any or all of the claimants. A defendant exposed to simi-
lar liability may obtain such interpleader by way of cross
claim or counterclaim. The provisions of this Rule supple-
ment and do not in any way limit the joinder of parties
permitted in Rule 20.
(2) In any civil action of interpleader, a district
court may enter its order restraining all claimants from
instituting or prosecuting any proceeding in any court of
App. 75
this state affecting the property, instrument, or obligation
involved in the interpleader action until further order of
the court.
Such district court shall hear and determine the case,
and may discharge the plaintiff from further liability,
make the injunction permanent, and make all appropriate
orders to enforce its judgment.”
No subject matter jurisdiction is given to the Denver
Probate Court under Rule 22. Only district courts have
jurisdiction over an interpleader action under Rule 22 of
the Colorado Rules of Civil Procedure.
In his Recommendation the Magistrate Judge
attempted to give jurisdiction to the Denver Probate
Court by citing the following Rule (Appendix, page 106):
(a) Rule 1 of the Colorado Rules of Civil Procedure
provides that, “These rules govern the procedure in the
probate court for the City and County of Denver... . In
case of conflict between these rules and the Colorado
Rules of Civil Procedure. ..., these rules shall control.”
However, the Magistrate Judge overlooks Rule 82 of
the Colorado Rules of Civil Procedure which provides
that, “These rules shall not be construed to extend the
jurisdiction of any court.” Also, People v. Kniss, 144 Colo.
351, 357 P.2d 352 (1960) holds that the Colorado Supreme
Court by rule cannot invest a court with expanded juris-
diction.
The Magistrate Judge is mistaken when at pages 106
and 107 of his Recommendation he states that, “Suffice it
to say that at least a colorable argument can be made that
Rule 1 of the Colorado Rules of Civil Procedure vests the
App. 76
probate court with jurisdiction to pass on interpleader
claims (Appendix, pages 106-107).
On December 29, 1995, jurisdiction over the matters
involved in Case No. 95 PR 2379 in the Denver Probate
Court still rested in the Colorado Court of Appeals or the
Pueblo County District Court.
On December 29, 1995, the Appellee CNB filed a
Complaint For Interpleader And Injunctive Relief in the
Denver Probate Court, Case No. 95 PR 2379. Interpleaded
was the amount of the judgments in the 1987 Action
which judgments were granted to the Appellant Joseph
A. Vento and his sister Cecilia De Fellippie individually
by the Pueblo County District Court on June 23, 1993.
These judgments were appealed to the Colorado Court of
Appeals where they were affirmed and then to the Colo-
rado Supreme Court where certiorari was denied on
December 11, 1996. The Complaint also requested the
Denver Probate Court to satisfy the judgments granted by
the Puebio County District Court on June 23, 1993, which
it did on January 3, 1996. On January 3, 1996, the Denver
Probate Court issued an Order on Interpleader Petition
(Appendix, pages 26, 27).
On January 5, 1996, Mandate issued by the Colorado
Court of Appeals affirming the judgments of June 15,
1993, of the Pueblo County District Court.
The date of December 29, 1995, when CNB filed its
Complaint for Interpleader, was about seven days before
the Colorado Court of Appeals issued its Mandate on
January 5, 1996. Also, January 3, 1996, the date that the
Denver Probate Court issued its Order on Interpleader
Petition (Appendix, pages 26-27), was two days before
App. 77
January 5, 1996, when the Mandate issued by the Colo-
rado Court of Appeals. Therefore, at the time the Com-
plaint was filed on December 29, 1995, and the Order on
Interpleader Petition issued on January 3, 1996, jurisdic-
tion of the judgments and the amounts of those judg-
ments was in the Colorado Court of Appeals until
January 5, 1996, when the Mandate issued. Jurisdiction of
the judgments and the amounts of those judgments was
not in the Denver Probate Court on December 29, 1995,
and January 3, 1996, but either in the Colorado Court of
Appeals or the Pueblo County District Court.
Also, the jurisdiction with respect to the Pueblo
County District Court judgments remained at all times
with the Pueblo County District Court except for appel-
late purposes and the Denver Probate Court never had
nor got subject matter jurisdiction over these judgments
and so acted with a complete absence of jurisdiction.
“The mandate provided for in C.A.R. 41 (Rule 41 of the
Colorado Appellate Rules) is intended to establish the
finality of the judgment upon which the parties can rely
and a direct attack upon the judgment after the mandate
has issued as not contemplated by the appellate rules.
Garrett v. Garrett, 30 Colo. App. 167, 490 P.2d 313
(1971). ...In our view, the function of the mandate is to
establish the finality of the court’s judgment, . . . to
restore jurisdiction in the tribunal from which the appeal
or petition for review is taken, People v. Jones, 631 P.2d
1132 (Colo. 1981), and to communicate the court’s judg-
ment to that tribunal. Hrabczuk v. John Lucas Landscaping,
888 P.2d 367 (Colo. App. 1994).
Exclusive jurisdiction concerning the payment, col-
lection and execution of such judgments lies with the
App. 78
District Court of Pueblo County. “Once a court takes
jurisdiction of an action, it thereafter has exclusive juris-
diction of the subject and matters ancillary thereto. People
in Interest of Maddox v. District Court, 597 P.2d 573, 575
(Colo. 1979).
It is a general rule in Colordo [sic] that a court may
not stay execution and thereby impair or destroy the
statutory right of a creditor to enforce collection of its
judgment against non-exempt property of the judgment
debtor. First National Bank of Denver v. District Court, 652
P.2d 613, 616 (Colo. 1982).
Under normal appellate procedures a trial court loses
its jurisdiction over a case as soon as an appeal is per-
fected in the appellate court. ... Until the disposition of
the appeal is announced, the trial court defers to the
appellate court, but when the appellate court announces
its decision to affirm, reverse, remand or modify, then
under Colorado law the trial court is automatically rein-
vested with jurisdiction. .. . Upon regaining jurisdiction
the trial court, through the use of its own enforcement
procedures, is then responsible for execution of its own
judgment in accordance with any directions issued by the
appellate court. Hylton v. Colo. Spgs., 32 Colo. App. 9, 505
P.2d 26 (1973).
Under the foregoing principles the trial court, the
Pueblo County District Court, is automatically reinvested
with jurisdiction for execution of its own judgment.
The jurisdiction of a court is continuing; once a court
has acquired jurisdiction of a case, its jurisdiction con-
tinues until the court has done all that it can do to
App. 79
exercise that jurisdiction to determine, subject to appel-
late review, all the issues involved, and to grant such
complete relief as is within its jurisdictional powers to
grant. 20 Am Jur. 2d Courts §110.
On January 3, 1996, in Case No. 95 PR 2379, the
Denver Probate Court did not have jurisdiction over the
Defendant, Linda Saunders, Personal Representative of
the Estate of Cecilia De Fellippie.
The Denver Probate Court issued its Order on Inter-
pleader Petition when it did not have jurisdiction over
the defendant, Linda Saunders, Personal Representative
of the Estate of Cecilia De Fellippie because of a pending
action in the District Court, Pueblo County, Colorado,
Linda Saunders, as Personal Representative for the Estate of
Cecilia De Fellippie v. Joseph A. Vento and Wesley C. Ket-
telkamp, Jr., as set forth in paragraph 13 of the Complaint
for Interpleader and Injunctive Relief.
The Denver Probate Court also recognized that it did
not have such jurisdiction as shown at lines 10-14 on page
38 of Exhibit B to the Complaint herein which is the
transcript of the hearing on January 3, 1996, as follows:
“The Court:. ... And I realize I don’t have jurisdic-
tion over Mr. Littlepage (attorney for the Estate of Cecilia
De Fellippie), but I am relying on a representation he
made to me this morning that he will bring the action
here and consolidate it with this case.” (Appendix, page
65)
For the foregoing reasons, Judge Stewart was acting
with a complete absence jurisdiction on January 3, 1996,
in Case No. 95 PR 2379 in the Denver Probate Court.
App. 80
3. The District Court Erred In Granting The
Motions To Dismiss Without Considering That The
Defendants Acted To Deprive The Appellant Vento Of
His Property Without Due Process Of Law In The Inter-
pleader Proceeding In The Denver Probate Court.
Vento has a cause of action under §1983 because he
was deprived of property through state action without
due process of law. See Coleman v. Turpen, 697 F.2d 1341,
1343 (10th Cir. 1983).
Substantive Due Process
The Due Process Clause of the Fourteenth Amend-
ment provides that no state shall deprive any person
of. ... property without due process of law. The law of
substantive due process prevents excessive government
encroachment on fundamental rights and interests, and is
intended to secure the individual from the arbitrary exer-
cise of the powers of government. The Due Process
Clause contains a substantive component that bars cer-
tain arbitrary, wrongful actions regardless of the fairness
of the procedures used to implement them. The touch-
stone of due process is protection of the individual
against arbitrary action of the government. Daniels v.
Williams, 474 US at 441, 1065 Ct [sic] 662, 88 L. Ed 2d 662,
668, 672; Zinermon v. Burch, 498 US 113, 110 S Ct 975, 108
L.Ed 2d 100, 113 (1990).
The claim that a person is entitled to “substantive
due process” means, as we understand the concept, that
state action which deprives him of property must have a
rational basis — that is to say, the reason for the depriva-
tion may not be so inadequate that the judiciary will
App. 81
characterize it as “arbitrary.” No person shall be arbi-
trarily deprived of his property. The essence of substan-
tive due process is Protection from arbitrary and
unreasonable action. A deprivation is arbitrary unless it
is substantially justified. See Jeffries v. Turkey Run Consoli-
dated School District, 492 F.2d 1, 3, 4 (1974).
The defendants acted without just cause and unrea-
sonably and unexcusably under the circumstances in the
interpleader action in the Denver Probate Court. There
was no reason, legal or otherwise, for the defendants to
Start that interpleader action except to harass Vento and
make it vexatious for him.
The defendants had deprived Vento of property with-
out adequate justification. Vento was arbitrarily deprived
of his property in an arbitrary and unreasonable manner.
He was entitled to the Protection of his property right
from and against state interference without due process
of law. The defendants had taken his property without
providing constitutionally mandated Procedures. There
was no interest of the defendants to be protected by
bringing the interpleader action. There were no substan-
tive policy reasons for filing the interpleader action. The
defendants were not proceeding under a claim of legal
right. The filing of the interpleader action was arbitrary
action.
Provisions in the Complaint showing lack of substan-
tive due process are as follows:
(1) In paragraph 11 of the Complaint (Appendix,
Pages 12, 13) interpleader was ordered before Vento
could file an answer or responsive pleading setting forth
any defense he may have had to the interpleader action
App. 82
or otherwise contest the interpleader complaint. A decree
cannot be entered in an interpleader action until all of the
defendants have had an opportunity to answer or contest
the interpleader complaint. A decree cannot be entered in
an interpleader action until all of the defendants have
had an opportunity to answer or contest the interpleader
complaint. Faulkner v. American Casualty, 584 A.2d 734,
748 (1991); Westinghouse Electric Corp. v. United Elec. R. &
M. Workers, 99 F. Supp. 597 (1951).
(2) In paragraph 12 of the Complaint, Vento’s law-
yer appeared at that hearing at 10:30 a.m. on January 3,
1996, in the Denver Probate Court and requested a con-
tinuance but the request was denied (Appendix, page 13).
(3) In paragraph 13 of the Complaint it is alleged
that the Denver Probate Court’s Order on Interpleader
Petition issued on January 3, 1996, satisfied Vento’s judg-
ment obtained against CNB on June 15, 1993, in the
District Court in Pueblo County in Case No. 87 CV 867
Appendix, pages 26, 17 [sic]).
The interpleader action in the Denver Probate Court
is in effect a taking of property when the government
action — the Order on Interpleader Petition on January 3,
1996 — directly interferes with or substantially disturbed
Vento’s use and enjoyment of the property.
The fact of filing the interpleader action under the
circumstances of this case together with the Denver Pro-
bate Court issuing the Order on Interpleader Petition
deprived Vento of property without due process of law.
aiid
App. 83
Procedural Due Process
The Fourteenth Amendment prohibits a state from
depriving a person of liberty or property without due
process of law. The fundamental requirement of due pro-
cess is the opportunity to be heard at a meaningful time
and in a meaningful manner. . . . An impartial tribunal is
an essential element of a due process hearing... . A
tribunal is not impartial if it is biased with respect to the
factual issues to be decided at the hearing. . . . Due
Process also requires that one be given notice of the
charges against him a reasonable time before the hearing
is to take place. See Miller v. City of Mission, Kan., 705 F.2d
368 (1983).
With respect to adequacy of notice is “notice reason-
ably calculated to reach all interested parties in time to
afford them a reasonable Opportunity to be heard:.... ”
(P)rovisions for a hearing satisfies due Process only when
notice is given which is reasonably calculated, under all
circumstances, to apprise interested parties of the pen-
dency of the action and afford them an Opportunity to
Present their objections. Mullane v. Central Hanover Bank
and Trust Co., 339 US 396 (1950); McKee v. Heggy, 703 F.2d
479 (10th Cir. 1983).
The fundamental requirement of due Process is the
Opportunity to be heard and it is an “opportunity which
must be granted at a meaningful time and in a meaning-
ful manner. Parratt Taylor, 451 US 527, 68 L.Ed 2d 420, 432,
101 S Ct 1908 (1981).
App. 84
Provisions in the Complaint showing lack of pro-
cedural due process are as follows:
(1) In paragraph 10 it is alleged that the complaint,
summons and motion to deposit money with the court
were served by Vento at 7:45 a.m. on January 3, 1996, at
his home in Pueblo, Colorado, which is about 100 miles
from Denver, for a hearing at 10:30 a.m. on that same day
of January 3, 1996, in Denver (Appendix, page 12).
(2) In paragraph 12 of the complaint it is alleged
that Vento’s attorney, Phillip Barber of Dufford & Brown,
P.C., in Denver, requested a continuance at the inception
of the hearing on January 3, 1996, which request for a
continuance was summarily denied by the Denver Pro-
bate Court (Appendix, page 13).
(3) In paragraph 14 of the complaint it is alleged
that Vento through is attorneys moved to disqualify
Judge Stewart for a conflict of interest (Appendix, page
14). See also Exhibits C and D attached to the Complaint
which are affidavits of attorneys about this matter
(Appendix, pages 85-88 and pages 89-92). Thereafter
Judge Steward [sic] signed a recusal order without vacat-
ing her previous Order on Interpleader Petition that she
had granted on January 3, 1996.
App. 85
CONCLUSION
The District Court’s Order of June 4, 1998 should be
reversed totally and Plaintiff Joseph A. Vento’s Complaint
reinstated and the defendants ordered to answer said
Complaint.
Respectfully submitted this 16th day of October,
1998.
/s/ Joseph A. Vento G
Joseph A. Vento, #637 |
Pro se
102 S. Tejon, Suite 1100
Colorado Springs, CO 80903
(719) 578-3329-
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