# Opposition Brief — Vento v. Colorado National Bank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1012%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 528 U.S. 951 ## Text — —— 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 Print Key Output Page 1 5769SS1 V4R3MO 980729 ICONP1 09/08/99 09:28:03 Display Device ........... : TL021666 Sa, fo ee B161DHS Work With Registry 9/08/99 9:26 AM Status: CLSD District Court, Denver County Case #: 1996 CV 3557 Div/Room: 7 Type: Other COLORADO NATL BANK VS VENTO, JOSEPH A et al Total Dollars Available as of: 9/08/1999 SPEC 00 Options: 2=Chg 4=Del 5=Dsp 9=Payments 14=Prt Chk 17=Post Chk 19=UnApply Opt Tran Seq Amount Amount Amt Jf/S Party Mthd Adr Due Paid To Pay Disb. DEFOO1 SPEC SEQ 1H 2932855.21 2932855.21 .00 .00 JOSEPH A VENTO SPEC SEQ 1H _ 919987.78 919987.78 00 00 Estate Of Cecilia Defellippie SPEC MANL 1H 745891.34 74589134 90 00 Wesley C. Kettelkamp Jr SPEC MANL 1H 5509317 55093.17 090 00 Wesley C. Kettelkamp Jr IMP003 SPEC SEQ 1H 12.00 12.00 .00 00 CLERK OF THE DENVER DISTRICT COURT Bottom F3-Exit F5=Refresh F6=Add Payee F10=Jump F12=Cancel Fl4=Fin Dtl F17=Apply [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