Petition for Writ of Certiorari — Sandlin v. Corporate Interiors, Inc.

Supreme Court, WS, -

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B4 901 Nov1 81994

P DFFICE OFTHE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

No.

GLEN K. SANDLIN,

Petitioner,

Vv.

CORPORATE INTERIORS, INC., SVEIN

REICHBORN-KJENNERUD, SANDRA REICHBORN-

KJENNERUD, 2601 BLAKE STREET, COLORADO

NATIONAL BANK, INTERIOR SERVICES, INC.,

Respondents.

‘PETITION FOR A WRIT OF CERTIORARI TO

THE COLORADO SUPREME COURT

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

ATTORNEY FOR PETITIONER

QUESTION PRESENTED FOR REVIEW

Whether the dismissal of

petitioner’s state court case to enforce

his federal court judgment for willful

age discrimination in employment was

based on an arbitrary and discriminatory

application of state procedural rules

depriving him of his First Amendment

right to petition the government for a

redress of grievances.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW... . i

TABLE OF CONTENTS ...... 2. « « -« ii

TABLE OF AUTHORITIES ...... . iii

PETITION FOR A WRIT OF CERTIORARI

TO THE COLORADO SUPREME COURT : 24 1

OPINIONS BELOW ...+.+«cceceee 1

JURISDICTION ...2«-e« ec csevevece ses 2

CONSTITUTIONAL PROVISION INVOLVED . . 3 |

STATEMENT OF THE CASE a Poe Bese 3

ANGUMENE ec ce ee eee eee ee es 10

CONCIUSION . .«. «ee eseeeeesee 12

ii

TABLE OF AUTHORITIES

CASES

Park, 838 F.2d 1483 (7th Cir.

1988) - _ 3 — e — * a . - * . a a e e 7

Blackburn Truck Lines, Inc. Vv.

Francis, 723 F.2d 730 (9th Cir.

1984) e e . 2 _ e @ = = 7. & s = . a e 7

f

NLRB, 461 U.S. 731, 103 S.Ct.

Same Gueeen es ee ee ee ee ee 8 12

f

, 629 P.2da 605 (Colo.

1981) . - * se e o . * * * Ld e e e e 23

, 377 U.S. 1, 84 S.Ct.

1113, 12 L.Ed.2¢ 89 (1964) --+--+-+- 122

Christiansen v.. Mechanical

, 404

F.2a 324 (10th Cir. 1968) --+-+-:+-> 7

Trades Council v. Andersen

Construction Co., 879 F.2d 809

(10th Cir. 1989) - +--+ -+++eee> 6

Conley v. Gibson, 355 U.S. 41,

78 S.Ct. 99, 2 L.Ed.2a 80 (1957) -- 11

Crosby v. Mills, 413 F.2d 1273

(10th Cir. 1969) . ~~ * e J + * J 2 — 6

j , 135 Colo. 100,

308 P.2d 608 (1957) .......

Dugas v. American Sur. Co. of

New York, 300 U.S. 414, 57 S.Ct.

$15, 81 L.BG@. 720 (1937) ... -

Espinoza v. O’Dell, 633 P.2d 455

[COL@. 2968) . 2 6 » © © © © °

Finley v. United States, 490 U.S.

545, 109 S.Ct. 2003, 104 L.Ed.2d

593 (1989) * * e e e e - . ° * *

, 159 Colo. 326,

<i e A” eS wi eee

» 193

U.S. 93, 24 S.Ct. 399, 48 L.Ed.

Gan Geeeer + 4: ¢ 6 6 4 0 & 4 ©

, 292 U.S.

234, 54 S.Ct. 695, 78 L.Ed. 1230

(1934) * a es 7 e o = e ” 2 e * aa

McDonald _ v. Lakewood Country

Club, 170 Colo. 355, 461 P.2da

re Se ae

McKee~Berger-Mansueto, Inc. v.

Board of Education, 691 F.2d 838

(7th Cir. 1982) e a eo — a. a oe -

NAACP v. Button, 371 U.S. 415,

83 S.Ct. 328, 9 L.Ed.2d 405

[aes & 2+ ee Se ae ee ee

Sandlin v. Corporate Interiors

inc., et al., 972 F.2d 1212

(10th Cir. 1992) * ° * e se 2 * ©

iv

i 3

: ‘

—

oy a

~

; *

; 5

.

; 7

—

; 5

, 823 P.2d 120 (Colo.

Co., 876 F.2d 852 (10th Cir.

1989) e a * » e se * o * * * J +

Edison, 810 F.2d 378 (3rd Cir.

1987) (en banc), cert. denied

401 0.8. 2089 «ss ewe ee

Sure-Tan, Inc. v. NLRB, 467

U.S. 883, 104 S.Ct. 2803, 81

L.Ed.2d 732 (1984) -»+-++-*°°

383 U.S. 715, 86 S.Ct. 1130,

16 L.Ed.2d 218 (1966) - +--+:

389 U.S. 217, 88 S.Ct. 353,

19 L.Ed.2d 426 (1967) - +--+: >

ichi , 401 U.S.

576, 91 S.Ct. 1076, 28 L.Ed.2d

339 (1971) wv a * ° * * . e e

\

STATUTES

28 U.S.C. § 1257(3) -

on: 0.8 .0i1-4 GO6F 2 «ee ee

a9 §.8.C. 96 G@2i-636 <+ +

42 U.S.C. § 1983 - -

11

12

12

12

OTHER AUTHORITIES

Amend. 1, U.S. Consti. .. os, & 13, 2

eG ee ee

5 eS Mae |): ) es

= we a) ; ns © |

13B Charles A. Wright et al.,

Federal Practice & Procedure

§ 3567.3 (2d ed. Supp. 1992) ..... 9

ee

vi

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

GLEN K. SANDLIN,

Petitioner,

Vv.

CORPORATE INTERIORS, INC., SVEIN

REICHBORN-KJENNERUD, SANDRA REICHBORN-

KJENNERUD, 2601 BLAKE STREET, COLORADO

NATIONAL BANK, INTERIOR SERVICES, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE COLORADO SUPREME COURT

Glen K. Sandlin hereby petitions the

Supreme Court of the United States to

issue a writ of certiorari to review the

dismissal of his state court case to

enforce his federal court judgment for

willful age discrimination in employment.

OPINIONS BELOW

Reference is hereby made to the

order issued by the Colorado Supreme

Court on August 22, 1994 denying

petitioner’s petition for a writ of

certiorari. This order, as well as the

order issued by the Colorado Supreme

Court on September 8, 1994 striking

petitioner’s petition for rehearing, and

the order issued by the Colorado Court of

Appeals on March 3, 1994 affirming the

dismissal of petitioner’s state court

case, are reproduced in the appendix to

this petition at pages 1, 2, and 3-9,

respectively.

JURISDICTION

On August 22, 1994, the Colorado

Supreme Court issued its order denying

petitioner’s petition for a writ of

certiorari to review the order of the

Colorado Court of Appeals affirming the

dismissal of his state court case to

enforce his federal court judgment for

willful age discrimination in employment.

vesicle

Pe ee ball aa iP

The statutory provision believed to

confer on the Supreme Court of the United

States jurisdiction to review this order

by writ of certiorari is 28 U.S.C. §

1257(3).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the

Constitution of the United States

provides in relevant part as follows:

Congress shall make no a

abridging . . . the right of the

people... to petition the

Government for a redress of

grievances.

STATEMENT OF THE CASE

On June 28, 1990, petitioner

obtained a judgment in the United States

District Court for the District of

Colorado against Corporate Interiors,

Inc. (a Colorado corporation of which

Svein Reichborn-Kjennerud is the

president and sole director and

shareholder) for $142,226.00 plus

3

<<<

interest at the legal rate of 8.24% per

annum. Petitioner’s judgment was issued

by United States District Judge Richard

P. Matsch after a jury finding of willful

age discrimination in employment under 29

U.S.C. §§ 621-634. Judge Matsch

subsequently assessed attorney fees and

costs of $27,752.00 against Corporate

Interiors, Inc.; but dismissed for lack

of ancillary jurisdiction petitioner’s

postjudgment collection proceedings

against Corporate Interiors, Inc., Svein

Reichborn-Kjennerud, Sandra Reichborn-

Kjennerud (the wife of Svein Reichborn-

Kjennerud), 2601 Blake Street (a Colorado

general partnership of which Svein and

Sandra Reichborn-Kjennerud are the

general partners), Colorado National Bank

of Denver (the lender for the other

parties named in the postjudgment

collection proceedings), and Interior

4

Services, Inc. The United States Court

of Appeals for the Tenth Circuit

subsequently affirmed the dismissal of

| petitioner’s post judgment collection

| proceedings in Sandlin v. Corporate

Interiors Inc., et al., 972 F.2d 1212

(10th Cir. 1992); and then denied

petitioner’s petition for rehearing and

suggestion for rehearing en banc, which

argued that the decision in Sandlin is

inconsistent with the decision in Finley

v. United States, 490 U.S. 545, 109 S.Ct.

2003, 104 L.Ed.2da 593 (1989), as well as

most federal court decisions addressing

the ancillary jurisdiction issue.’ The

ItIn Finley, Justice Scalia said:

While in a narrow class of cases a

federal court may assert authority

over such a claim ‘ancillary’ to

jurisdiction otherwise properly

vested--for example, .. . when

necessary to give effect to the |

court’s judgment, see, e.g., Local

Loan Co. v. Hunt, 292 U.S. 234, 239,

5

54 S.Ct. 695, 697, 78 L.Ed. 1230

(1934); ’

193 U.S. 93, 112-114, 24 S.Ct. 399,

407-408, 48 L.Ed. 629 (1904)--we

have never reached such a result

solely on the basis that the Gibbs

test has been met.

Finley, 109 S.ct. at 2008. See also

’

300 U.S. 414, 428, 57 S.Ct. 515, 521, 81

L.Ed. 720, 727-28 (1937) ("(A

supplemental) bill may be brought in a

federal court in aid of and to effectuate

its prior decree to the end either that

the decree may be carried fully into

execution or that it may be given fuller

effect ... . Such a bill is ancillary

and dependent, and therefore the

jurisdiction follows that of the original

suit, regardless of the citizenship of

the parties to the bill or the amount in

controversy"); Colorado Building and

, 879 F.2d 809, 810 (10th

Cir. 1989) (ancillary jurisdiction over a

postjudgment dispute among competing

creditors of a judgment debtor); Sheet

, 876 F.2d 852 (10th

Cir. 1989) (ancillary jurisdiction over a

motion filed to collect attorney’s fees

awarded in connection with a postjudgment

collection action); Crosby v. Mills, 413

F.2d 1273, 1275-76 (10th Cir.

1969) ("(Wjhen an independent action is

brought to obtain Rule 60(b) relief in

the federal court that rendered the

initial judgment, there is ancillary

6

Tenth Circuit also refused to consider

what impact 28 U.S.C. § 1367 dealing with

jurisdiction over the action despite

absence of a federal question or

diversity of citizenship"); Christiansen

v. Mechanical Contractors Bid Depository

404 F.2d 324 (10th Cir. 1968) (ancillary

jurisdiction over postjudgment successor

liability and alter ego claims) ;

Blackburn Truck Lines, Inc. °

a

’

723 F.2d 730, 733 n. 1 (9th Cir.

1984) (ancillary jurisdiction held to

exist in an action to pierce the

corporate veil to reach the owners of

bankrupt judgment debtor corporations in

part because ‘we do not view this suit as

separate and apart from the original

judgment’);

Park, 838 F.2d 1483, 1487-93 (7th Cir.

1988) (ancillary jurisdiction over

collection proceedings against town

employing judgment centers in section

1983 action) ; -

vy. Board of Education, 691 F.2d 838, 831-

32 (7th Cir. 1982) (court had continuing

jurisdiction to adjudicate conflicting

claims to monies owed as a result of an

adverse judgment) ;

of Edison, 810 F.2d 378, 385 (3rd Cir.

1987) (en banc), cert. denied 481 U.S.

1029 (ancillary jurisdiction over

collection proceedings against town

employing judgment debtors in section

1983 action).

supplementary jurisdiction might have on

petitioner’s case.’

In this connection, one commentator

said:

The new statute was adopted as

§ 310 of the Judicial Improvements

Act of 1990. Title III of that Act,

which at one point was independent

legislation, was intended "to

implement the non-controversial

recommendations of the Federal

Courts Study Committee ...." The

Federal Courts Study Committee was a

distinguished group appointed

pursuant to an Act of Congress. Its

recommendation 2.B.2.b was: |

"Congress should expressly authorize

federal courts to assert pendent

jurisdiction over parties without an

independent federal jurisdictional

base." The reasoning of the

Committee justifying that

recommendation is set out in the

margin.

The new statute is applicable

only to civil actions commenced on

or after December 1, 1990. But

After petitioner was precluded from

enforcing his federal court judgment in

federal court, he filed suit in the

District Court in and for the City and

County of Denver, which dismissed his

case because of alleged pleading defects

in his amended complaint. The Colorado

Court of Appeals subsequently affirmed

the dismissal of petitioner’s state court

case in an unpublished order, which the

Colorado Supreme Court refused to review

on petition for a writ of certiorari.

The Colorado Supreme Court then struck

petitioner’s petition for rehearing,

which argued that he had been deprived of

his First Amendment right to petition the

government for a redress of grievances.

(Emphasis added. ]

[Footnotes omitted.] 13B Charles A.

Wright et al.,

Procedure § 3567.3 (2d ed. Supp. 1992).

9

ARGUMENT

When considered in conjunction with

the dismissal for lack of ancillary

jurisdiction of petitioner’s federal

court case, the dismissal of petitioner’s

state court case had the effect of

precluding him from enforcing his federal

court judgment for willful age

discrimination in employment in either

the state or the federal courts. The

dismissal of petitioner’s state court

case was based on an arbitrary and

discriminatory application of state

procedural rules.’ Petitioner was

*As is readily apparent from a

review of petitioner’s amended complaint,

which is reproduced in the appendix to

this petition at pages 10-27, the

dismissal of his state court case to

enforce his federal court judgment for

willful age discrimination in employment

was based on an arbitrary and

discriminatory application of the well-

established standard of review on a

motion to dismiss:

10

therefore deprived of his First Amendment

‘A short and plain statement of

the claim showing that the pleader

is entitled to relief’ is all that

C.R.C.P. 8(a)(2) requires. See

Hinsey v. Jones, 159 Colo. 326, 329,

411 P.2d 242, 244 (1966). In

determining a motion to dismiss a

complaint, a court must accept all

averments of material fact contained

in the complaint as true. C.R.C.P.

12(b) (5). Board of County Comm'rs

v. City of Thornton, 629 P.2d 605,

609 (Colo. 1981). A complaint is

sufficient to withstand a motion to

dismiss if the plaintiff states a

claim that would entitle him to

relief. j

Irrigation Dist., 135 Colo. 100,

101, 308 P.2d 608, 609 (1957). The

same standards for determining a

motion to dismiss apply to both the

trial court and the appellate court.

See Espinoza v. O'Dell, 633 P.2d

455, 467 (Colo. 1981); McDonald v.

Lakewood Country Club, 170 Colo.

355, 461 P.2d 437 (1969).

Shapiro and Meinhold v. Zartman, 823 P.2d

120, 122-123 (Colo. 1992); see also

Conley v. Gibson, 355 U.S. 41,

78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

11

right to petition the government for a

redress of grievances.‘

CONCLUSION

Petitioner requests the Supreme

Court of the United States to reinstate

and remand his state court case for

further proceedings not inconsistent with

the First Amendment. Alternatively,

petitioner requests the Supreme Court to

reinstate and remand his federal court

“See NAACP v. Button, 371 U.S. 415,

83 S.Ct. 328, 9 L.Ed.2d 405 (1963) ("And

under the conditions of modern

government, litigation may well be the

sole practicable avenue open to a

minority to petition for redress of

grievances. . . ."); Brotherhood of

Railroad Trainmen v. Virginia, 377 U.S.

1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964);

United Mine Workers v. Illinois, 389 U.S.

217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967);

a

of Michigan, 401 U.S. 576, 91 S.Ct. 1076,

28 L.Ed.2d 339 (1971); Bill Johnson’s

Restaurants v. NLRB, 461 U.S. 731, 103

S.Ct. 2161, 76 L.Ed.2d 277 (1983); Sure-

Tan, Inc. v. NLRB, 467 U.S. 883, 104

S.Ct. 2803, 81 L.Ed.2d 732 (1984).

12

4

——————————

case for further proceedings not

inconsistent with the decision in Finley

v. United States, 490 U.S. 545, 109 S.Ct.

2003, 104 L.Ed.2d 593 (1989), as well as

most federal court decisions addressing

the ancillary jurisdiction issue. See

also 28 U.S.C. § 1367.

Respectfully submitted,

, whan

DAVID L. SMITH

1630 Welton Street

Suite 300

Denver, Colorado 80202

(303) 534-0153

ATTORNEY FOR PETITIONER

13

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

GLEN K. SANDLIN,

Petitioner,

Vv.

CORPORATE INTERIORS, INC., SVEIN

REICHBORN-KJENNERUD, SANDRA REICHBORN-

KJENNERUD, 2601 BLAKE STREET, COLORADO

NATIONAL BANK, INTERIOR SERVICES, INC.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE COLORADO SUPREME COURT

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

ATTORNEY FOR PETITIONER

INDEX TO APPENDIZ

Order of Court (Colorado Supreme

Court August 22, 1994) .+«+««se«#e«e- i

Order of Court (Colorado Supreme

Court September 8, 1994) ....... 2

Order (Colorado Court of Appeals

waren 3, Abepe) «© ec se eevee weweevense J

Amended Complaint (District Court

in and for the City and County of

Denver February 23, 1994) ...... 10

SUPREME COURT, STATE OF COLORADO

CASE NO. 94SC259

CERTIORARI TO THE COLORADO COURT OF

APPEALS, 93CA0741

DISTRICT COURT, CITY AND COUNTY OF

DENVER, 92CV6282

ORDER OF COURT

GLEN K. SANDLIN,

Petitioner,

Ve

CORPORATE INTERIORS, INC.; SVEIN

REICHBORN-KJENNERUD; SANDRA REICHBORN-

KJENNERUD; 2601 BLAKE STREET; COLORADO

NATIONAL BANK; INTERIOR SERVICES, INC.,

Respondents.

Upon consideration of the Petition

for Writ of Certiorari to the Colorado

Court of Appeals, and after review of the

record, the briefs, and the judgment of

said Court of Appeals,

IT IS THIS DAY ORDERED that said

Petition for Writ of Certiorari shall be,

and same hereby is, DENIED.

BY THE COURT, EN BANC, AUGUST 22,

1994.

SUPREME COURT, STATE OF COLORADO

CASE NO. 94SC259

CERTIORARI TO THE COLORADO COURT OF

APPEALS, 93CA0741

DISTRICT COURT, CITY AND COUNTY OF

DENVER, 92CV6282

ORDER OF COURT

GLEN K. SANDLIN,

Petitioner,

Ve

CORPORATE INTERIORS, INC.; SVEIN

REICHBORN-KJENNERUD; SANDRA REICHBORN-

KJENNERUD; 2601 BLAKE STREET; COLORADO

NATIONAL BANK; INTERIOR SERVICES, INC.,

Respondents.

Upon consideration of the Petition

for Rehearing filed in the above cause,

and now being sufficiently advised in the

premises,

IT IS THIS DAY ORDERED that said

Petition shall be, and same hereby is,

STRICKEN. C.A.R. 54(b).

BY THE COURT, SEPTEMBER 8, 1994.

COLORADO COURT OF APPEALS March 3, 1994

No. 93CA0741 NOT SELECTED FOR PUBLICATION

Glen K. Sandlin,

Plaintiff-Appellant,

Vv.

Corporate Interiors, Inc.; Svein

Reichborn-Kjennerud; Sandra Reichborn-

Kjennerud; 2601 Blake Street; Colorado

National Bank of Denver; and Interior

Services, Inc.,

Defendants-Appeliees.

Appeal from the District Court of the

City and County of Denver

Honorable Lynne M. Hufnagel, Judge

No. 92CV6282

Division III JUDGMENT AFFIRMED

Opinion by Judge Taubman

Criswell and Davidson, JJ., concur

Plaintiff, Glen K. Sandlin, appeals

the dismissal of his complaint against

defendants, Corporate Interiors, Inc.;

Svein and Sandra Reichborn-Kjennerud;

2601 Blake Street; Colorado National

Bank; and Interior Services, Inc. We

affirn.

Plaintiff filed a complaint which

contained eight numbered paragraphs of

3

allegations on three and one-half single-

spaced typewritten pages. The prayer for

relief contained ten claims in a single

paragraph covering about one-half page.

As best we can determine, plaintiff

alleged that he had obtained a judgment

in federal court against defendant

Corporate Interiors, Inc., but had not

been able to collect it due to

defendants’ unspecified actions or

inactions.

The trial court ordered plaintiff to

file an amended complaint delineating

specific causes of action "as defined in

the Colorado Jury Instructions, Third

Edition," stating against which

defendants the claims were brought, and

complying with the Colorado Rules of

Civil Procedure. The court stated that

it had "no idea what is being alleged"

and that the action would be dismissed if

a proper amended complaint were not

filed.

Plaintiff filed an amended complaint

alleging six numbered courts: a

conspiracy claim against all defendants;

a "statute of frauds" claim against all

defendants; a breach of fiduciary claim

against Svein Reichborn-Kjennerud; an

“alter ego" claim against the Reichborn-

Kjenneruds and 2601 Blake Street; a

"lender liability" claim against Colorado

National Bank; and a "successor

liability" claim against Interior

Services, Inc. The amended complaint

referred to sworn testimony, exhibits,

and depositions in "postjudgment Rule

69(a) proceedings in the federal lawsuit"

and the "personal bankruptcy case of

4

Douglas L. Canady, who was officer,

director, and shareholder of Defendant

Interior Services, Inc." The amended

complaint purported to incorporate those

items "by reference for all purposes,"

although none was attached.

Defendants moved to dismiss the

amended complaint or for a more definite

statement. Plaintiff responded that,

although his claims were not defined in

the Colorado Jury Instructions, they were

stated with the required specificity and

in compliance with the trial court’s

order.

The trial court found that

plaintiff’s amended complaint failed to

comply with the requirements of C.R.C.P.

8 and 9 as to all claims and also failed

to state a claim for relief as to breach

of fiduciary against Svein Reichborn-

Kjennerud and lender liability against

Colorado National Bank. The court noted

that there were no concise statements

identifying the parties or their

relationship to one another, no

statements regarding jurisdiction or

venue, and the averments were not

“simple, concise, and direct." Although

the plaintiff alleged fraudulent

conveyances, none was identified by date,

property conveyed, or circumstances to

suggest that fraud was involved. Because

the prior order gave plaintiff the

opportunity to submit a proper amended

complaint and he failed to do so, the

trial court dismissed the complaint.

Plaintiff contends that his amended

complaint complied with the pleading

5

requirements of the prior order, the

Colorado Rules of Civil Procedure, and

applicable case law. We disagree.

In reviewing the trial court’s

dismissal of the complaint, we must view

the allegations of the complaint as true

and in a light most favorable to the

plaintiff. The complaint cannot be

dismissed unless it appears that the

plaintiff is entitled to no relief under

any statement of facts which may be

proved in support of the claims.

j » 832

P.2d 960 (Colo. App. 1991).

A complaint is sufficient to

withstand a motion to dismiss if the

plaintiff states a claim that would

entitle him to relief and apprises the

defendant of the nature of the claim and

the events or transactions relied upon.

j » 823 P.2d

120 (Colo. 1992);

, 681 P.2d 536 (Colo.

App. 1984).

C.R.C.P. 8 provides that pleadings

which set forth a claim for relief shall

contain a short and plain statement of

the claim showing that the pleader is

entitled to relief, and each averment of

a pleading shall be simple, concise, and

direct.

C.R.C.P. 9(b) requires that in all

averments of fraud, the circumstances

constituting the fraud shall be stated

with particularity. Particularity is

required as to all material elements of a

fraud action. Kinsey v. Preeson, 746

P.2d 542 (Colo. 1987).

The complaint need not set forth all

the evidence that may be adduced to prove

fraud, but it must state the main facts

or incidents which constitute the fraud.

j j , 124 Colo.

223, 235 P.2d 994 (1951).

Here, as noted by the trial court,

plaintiff’s amended complaint did not

comply with those rules. See

Bober, 34 Colo. App. 423, 529 P.2d 1351

(1974).

Plaintiff’s attempt to incorporate

documents which were not attached to the

amended complaint was ineffective to

supply the necessary averments. See

C.R.C.P. 10(c); cf., Borwick v. Bober,

Supra.

Thus, even construing the pleading

in plaintiff’s favor as we must, see

C.R.C.P. 8(f);

Junction, 144 Colo. 207, 355 P.2d 960

(1960), we conclude that the amended

complaint did not give defendants

adequate notice of the transactions upon

which plaintiff based his claims.

Plaintiff is correct that specific

statements as to venue, jurisdiction, and

the relationship of the parties were not

necessary here, see C.R.C.P. 8(a), and

causes of action other than those

described in the Colorado Jury

Instructions may be alleged, see C.R.C.P.

51.1(2); CJI-Civ. 3d (1988) (General

Directions for Use) (form jury

7

instructions are not all-inclusive or

encyclopedic). Also, to the extent

plaintiff sought equitable relief, CJI-

Civ. 3d is inapplicable. See e.g, CJI-

Civ. 3d 31:4 (Notes on Use) (since

promissory estoppel is an equitable

Claim, no instruction provided).

Nonetheless, we agree with the trial

court that plaintiff’s amended complaint

failed to show that he was entitled to

some relief “upon any theory of law."

Cf. Borwick v. Bober, supra (when with

“diligent and exhaustive study," the

court was able to understand plaintiff’s

pleadings and theory of the case, it was

error to dismiss the complaint). Not

only were the allegations insufficiently

pled, but the breach of fiduciary duty

and lender liability allegations failed

to indicate what duty defendants had to

plaintiff or how it was breached, under

“any theory of law."

Therefore, the amended complaint

failed to state claims upon which relief

could be granted, and the action was

properly dismissed. See C.R.C.P. 12(e)

(if order for more definiteness or

particularity is not obeyed, the court

may strike the pleading or make such

order as it deems just).

Plaintiff also contends that the

trial court was biased and discriminated

against him in dismissing his lawsuit.

We do not address that contention, as it

was raised for the first time on appeal.

See C.R.C.P. 97; Christensen v. Hoover,

643 P.2d 525 (Colo. 1982).

The judgment is affirmed.

JUDGE CRISWELL and JUDGE DAVIDSON

concur.

DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO

Civil Action No. 92CV6282, Courtroom 9

AMENDED COMPLAINT

GLEN K. SANDLIN,

Plaintiff,

Ve

CORPORATE INTERIORS, INC., SVEIN

REICHBORN-KJENNERUD, SANDRA REICHBORN-

KJENNERUD, 2601 BLAKE STREET, COLORADO

NATIONAL BANK, and INTERIOR SERVICES,

INC.,

Defendants.

First Averment: Since at least

August of 1983 and continuing to the

present, Defendants Corporate Interiors,

Inc., Svein Reichborn-Kjennerud, Sandra

Reichborn-Kjennerud, 2601 Blake Street,

Colorado National Bank, and Interior

10

ee

iS Rg ke

Services, Inc. have engaged in a course

of concerted conduct amounting to a

conspiracy with each other and with

unknown third persons for the purpose of

making, or causing to be made,

conveyances of and charges upon the

property of Defendant Corporate

Interiors, Inc. with the intent to

hinder, delay, and defraud creditors and

other persons, including Plaintiff Glen

K. Sandlin, of their lawful suits,

damages, forfeitures, debts, and demands,

in violation of C.R.S. § 38-10-117.!

: One or more

persons or entities engaged in the

conspiracy alleged in the foregoing First

Averment did, or caused to be done, the

following acts in furtherance of the

object of such conspiracy, whereby

Plaintiff Glen K. Sandlin was injured in

his person or property:

A. On numerous occasions

between August of 1983 and August of

1989, Defendant Svein Reichborn-

Kjennerud made unauthorized pledges

of property owned by Defendant

Corporate Interiors, Inc. as

collateral for loans made by

Defendant Colorado National Bank to

Defendant 2601 Blake Street to

finance Defendant 2601 Blake

Street’s real estate transactions.

At all times relevant to these

unauthorized pledges of property,

IDefendant Interior Services, Inc.

did not join the conspiracy until

November of 1989.

11

Defendant Svein Reichborn-Kjennerud

was officer, director, and

shareholder of Defendant Corporate

Interiors, Inc., and was also

general partner with his wife,

Defendant Sandra Reichborn-

Kjennerud, in Defendant 2601 Blake

Street. Defendant Colorado National

Bank made the loans to Defendant

2601 Blake Street despite its

knowledge of the unauthorized

pledges of property. Defendants

Svein Reichborn-Kjennerud and Sandra

Reichborn-Kjennerud were personal

guarantors on the loans.

B. Beginning in August of 1989

and continuing through at least

April of 1990, Defendants Corporate

Interiors, Inc., Svein Reichborn-

Kjennerud, Sandra Reichborn-

Kjennerud, 2601 Blake Street,

Colorado National Bank, and Interior

Services, Inc. sold and otherwise

made, or caused to be made,

conveyances of and charges upon the

property of Defendant Corporate

Interiors, Inc. At all times

relevant to these conveyances and

charges, Defendant Svein Reichborn-

Kjennerud was officer, director, and

shareholder of Defendant Corporate

Interiors, Inc., and was general

partner with his wife, Defendant

Sandra Reichborn-Kjennerud, in

Defendant 2601 Blake Street.

Defendants Corporate Interiors,

Inc., Svein Reichborn-Kjennerud,

Sandra Reichborn-Kjennerud, 2601

Blake Street, Colorado National

Bank, and Interior Services, Inc.

12

fat a,

<b) NT ne ite Pie

aided, abetted, and participated in

these conveyances and charges

despite the fact that they knew that

Defendant Corporate Interiors, Inc.

was insolvent, and despite the fact

that they knew that Plaintiff Glen

K. Sandlin had filed, in May of

1989, a federal lawsuit alleging age

discrimination in employment against

Defendant Corporate Interiors, Inc.

C. In October of 1989,

Defendant Svein Reichborn-Kjennerud

and his attorneys successfully

delayed the trial of Plaintiff’s

federal lawsuit alleging age

discrimination in employment against

Defendant Corporate Interiors, Inc.

from October of 1989 to June of 1990

so that the property owned by

Defendant Corporate Interiors, Inc.

could be sold and the proceeds from

the sale of the property could be

applied to assist in the repayment

of the loans made by Defendant

Colorado National Bank to Defendant

2601 Blake Street before trial and

entry of judgment. Defendant

Colorado National Bank knew that the

trial was being delayed, and aided,

abetted, and participated in the

delay.

D. In late 1989 and early 1990,

Defendants Svein Reichborn-Kjennerud

and Colorado National Bank conveyed

a substantial portion of the

remaining assets of Defendant

Corporate Interiors, Inc. to

Defendant Interior Services, Inc.,

which continued Defendant Corporate

13

Interiors, Inc.’s business at the

same location in Denver, Colorado

with essentially the same jobs,

employees, and supervisors under

essentially the same working

conditions. At all times relevant

to the conveyance of assets,

Defendant Interior Services, Inc.

knew about Plaintiff Glen K.

Sandlin’s federal lawsuit alleging

age discrimination in employment

against Defendant Corporate

Interiors, Inc. Defendants Svein

Reichborn-Kjennerud, Colorado

National Bank, and Interior

Services, Inc. entered into the

conveyance of assets fraudulently to

attempt to escape liability for the

debts of Defendant Corporate

Interiors, Inc., including liability

for the age discrimination claim

being pursued by Plaintiff Glen K.

Sandlin in federal court.

E. In April of 1990, Defendants

Svein Reichborn-Kjennerud, Sandra

Reichborn-Kjennerud, 2601 Blake

Street, and Colorado National Bank

entered into a written agreement

requiring the proceeds from the sale

of the property owned by Defendant

Corporate Interiors, Inc. to be used

to assist in the repayment of the

loans made by Defendant Colorado

National Bank to Defendant 2601

Blake Street. While the agreement

permits Defendants Svein Reichborn-

Kjennerud and Sandra Reichborn-

Kjennerud, who are personal

guarantors on the loans, to pay off

the remaining balance on the loans

a4

and thus prevent foreclosure on

their home in Denver, Colorado, no

provision is made or consideration

given for paying off the creditors

of Defendant Corporate Interiors,

Inc., including Plaintiff Glen kK.

Sandlin.

F. Subsequent to the April of

1990 agreement, Defendants Svein

Reichborn-Kjennerud, Sandra

Reichborn-Kjennerud, 2601 Blake

Street, and Colorado National Bank

applied the proceeds from the sale

of the property owned by Defendant

Corporate Interiors, Inc. to assist

in the repayment of the loans made

by Defendant Colorado National Bank

to Defendant 2601 Blake Street.

Upon information and belief,

Defendant Colorado National Bank has

not foreclosed on the home of

Defendants Svein Reichborn-Kjennerud

and Sandra Reichborn-Kjennerud to

pay off the remaining balance on the

loans.

Third Averment: As the result of

the wrongful actions alleged in the

foregoing First and Second Averments,

Defendant Corporate Interiors, Inc. has

been divested of its assets, and

Plaintiff Glen K. Sandlin has been unable

to collect the judgment entered in his

favor in the federal lawsuit alleging age

discrimination in employment against

Defendant Corporate Interiors, Inc. This

judgment was entered on June 28, 1990,

and was in the amount of $142,226.00 plus

interest at the legal rate of 8.24% per

annum. The Plaintiff has also been

15

unable to collect the attorney fees of

$26,425.00 and costs of $830.60 awarded

in his favor in the federal lawsuit.

Fourth Averment: In sworn testimony

at the postjudment Rule 69(a) proceedings

in the federal lawsuit referred to in the

foregoing Third Averment, Defendants

Corporate Interiors, Inc., Svein

Reichborn-Kjennerud, Sandra Reichborn-

Kjennerud, 2601 Blake Street, Colorado

National Bank, and Interior Services,

Inc. made numerous statements and

identified numerous exhibits relevant to

the wrongful actions alleged in the

foregoing First, Second, and Third

Averments. These statements and exhibits

are incorporated into this Count I by

reference for all purposes.

: Plaintiff Glen K.

Sandlin did not discover the wrongful

actions alleged in the foregoing First,

Second, and Third Averments until August

and September of 1990 during the

postjudgment Rule 69(a) proceedings

referred to in the foregoing Fourth

Averment.”? Additional evidence was

70n November 30, 1990, United States

District Judge Richard P. Matsch

dismissed Plaintiff’s postjudgment Rule

69(a) proceedings and separate collection

action for lack of ancillary

jurisdiction. The United States Court of

Appeals for the Tenth Circuit affirmed

Judge Matsch’s dismissals on August 18,

1992, and Plaintiff’s petition for

rehearing was denied on September 21,

1992.

16

af

&

¢.

t

discovered during the personal bankruptcy

case of Douglas L. Canady, who was

officer, director, and shareholder of

Defendant Interior Services, Inc. This

evidence, which is in the form of

depositions, deposition exhibits, and

sworn trial testimony, is incorporated

into this Count I by reference for all

purposes. ;

Relief Requested: Plaintiff Glen K.

Sandlin hereby requests the Court and

jury to declare void and set aside the

fraudulent conveyances of and charges

upon the property owned by Defendant

Corporate Interiors, Inc., or in the

alternative, to impose a constructive

trust on the property, or on the proceeds

from the sale of the property, owned by

Defendant Corporate Interiors, Inc., for

the benefit of the Plaintiff; to award

the Plaintiff all actual and compensatory

damages proximately caused by the

wrongful actions of Defendants Corporate

Interiors, Inc., Svein Reichborn-

Kjennerud, Sandra Reichborn-Kjennerud,

2601 Blake Street, Colorado National

Bank, and Interior Services, Inc.,

including, but not limited to, damages

for pain and suffering and mental and

emotional distress; to award the

Plaintiff reasonable exemplary damages

against each of these Defendants, since

the injury to Plaintiff’s person and

property is attended by circumstances of

fraud, malice, and willful and wanton

conduct; and to award the Plaintiff

interest (pre- and post-judgment), costs,

and attorney fees, and such other and

further legal and equitable relief as the

Court and jury deem appropriate.

17

Jury Demand: Plaintiff Glen K.

Sandlin hereby demands a trial by jury of

the conspiracy claim against Defendants

Corporate Interiors, Inc., Svein

Reichborn-Kjennerud, Sandra Reichborn-

Kjennerud, 2601 Blake Street, and

Interior Services, Inc.

First Averment: Plaintiff Glen kK.

Sandlin hereby realleges the First,

Second, Third, Fourth, and Fifth

Averments of the foregoing Count I as a

separate statute of frauds claim against

Defendants Corporate Interiors, Inc.,

Svein Reichborn-Kjennerud, Sandra

Reichborn-Kjennerud, 2601 Blake Street,

Colorado National Bank, and Interior

Services, Inc.

: The statute of

frauds referred to in the foregoing First

Averment is C.R.S. § 38-10-117, which

Defendants Corporate Interiors, Inc.,

Svein Reichborn-Kjennerud, Sandra

Reichborn-Kjennerud, 2601 Blake Street,

Colorado National Bank, and Interior

Services, Inc. violated in the manner

alleged in the First, Second, Third,

Fourth, and Fifth Averments of the

foregoing Count I.

18

Relief Requested: Plaintiff Glen XK.

Sandlin hereby requests the Court and

jury to declare void and set aside the

fraudulent conveyances of and charges

upon the property owned by Defendant

Corporate Interiors, Inc., or in the

alternative, to impose a constructive

trust on the property, or on the proceeds

from the sale of the property, owned by

Defendant Corporate Interiors, Inc., for

the benefit of the Plaintiff; to award

the Plaintiff all actual and compensatory

damages proximately caused by the

wrongful actions of Defendants Corporate

Interiors, Inc., Svein Reichborn-

Kjennerud, Sandra Reichborn-Kjennerud,

2601 Blake Street, Colorado National

Bank, and Interior Services, Inc.,

including, but not limited to, damages

for pain and suffering and mental and

emotional distress; to award the

Plaintiff reasonable exemplary damages

against each of these Defendants, since

the injury to Plaintiff’s person and

property is attended by circumstances of

fraud, malice, and willful and wanton

conduct; and to award the Plaintiff

interest (pre- and post-judgment), costs,

and attorney fees, and such other and

further legal and equitable relief as the

Court and jury deem appropriate.

Jury Demand: Plaintiff Glen kK.

Sandlin hereby demands a trial by jury of

the statute of frauds claim against

Defendants Corporate Interiors, Inc.,

Svein Reichborn-Kjennerud, Sandra

Reichborn-Kjennerud, 2601 Blake Street,

and Interior Services, Inc.

Defendant Svein Reichborn-Kjennerud)

First Averment: Plaintiff Glen K.

Sandlin hereby realleges the First,

Second, Third, Fourth, and Fifth

Averments of the foregoing Count I, and

realleges the First and Second Averments

of the foregoing Count II.

: At all times

relevant to the wrongful actions alleged

in the foregoing First Averment,

Defendant Svein Reichborn-Kjennerud was

officer, director, and shareholder of

Defendant Corporate Interiors, Inc., and

owed a fiduciary duty to corporate

creditors not to divest corporate

property for his own use or benefit, or

for the use or benefit of related persons

or entities, and thereby defeat the

claims of corporate creditors.

Third Averment: Beginning in August

of 1989 and continuing through at least

April of 1990, Defendant Svein Reichborn-

Kjennerud breached the fiduciary duty

referred to in the foregoing Second

Averment by aiding, abetting, and

participating in the sale and other

conveyances of and charges upon the

property of Defendant Corporate

Interiors, Inc. Defendant Svein

Reichborn-Kjennerud thus divested

corporate property for his own use or

benefit, or for the use or benefit of

related persons or entities, and thereby

defeated the claims of corporate

creditors, including Plaintiff Glen K.

Sandlin.

20

Relief Requested: Plaintiff Glen kK.

Sandlin requests the Court and jury to

hold Defendant Svein Reichborn-Kjennerud

liable for the debts and other

liabilities of Defendant Corporate

Interiors, Inc., including the judgment

entered in Plaintiff’s favor in the

federal lawsuit alleging age

discrimination in employment against

Defendant Corporate Interiors, Inc., and

the attorney fees and costs awarded to

the Plaintiff in the federal iawsuit; to

award the Plaintiff all actual and

compensatory damages proximately caused

by the wrongful actions of Defendant

Svein Reichborn-Kjennerud, including, but

not limited to, damages for pain and

suffering and mental and emotional

distress; to award the Plaintiff

reasonable exemplary damages against

Defendant Svein Reichborn-Kjennerud,

since the injury to Plaintiff’s person

and property is attended by circumstances

of fraud, malice, and willful and wanton

conduct; and to award the Plaintiff

interest (pre- and post-judgment), costs,

and attorney fees, and such other and

further legal and equitable relief as the

Court and jury deem appropriate.

Jury Demand: Plaintiff Glen K.

Sandlin hereby demands a trial by jury of

the breach of fiduciary duty claim

against Defendant Svein Reichborn-

Kjennerud.

21

First Averment: Plaintiff Glen kK.

Sandlin hereby realleges the First,

Second, Third, Fourth, and Fifth

Averments of the foregoing Count I,

realleges the First and Second Averments

of the foregoing Count II, and realleges

the First, Second, and Third Averments of

the foregoing Count III.

Second Averment: At all times

relevant to the wrongful actions alleged

in the foregoing First Averment,

Defendant Svein Reichborn-Kjennerud was

officer, director, and shareholder of

Defendant Corporate Interiors, Inc., and

was general partner with his wife,

Defendant Sandra Reichborn-Kjennerud, in

Defendant 2601 Blake Street.

Third Averment: Under the

circumstances alleged in the foregoing

First and Second Averments, there is a

unity of interest, ownership, and

management among Defendants Corporate

Interiors, Inc., Svein Reichborn-

Kjennerud, Sandra Reichborn-Kjennerud,

and 2601 Blake Street; the separate

personality of each of these Defendants

no longer exists; Defendant Corporate

Interiors, Inc. is a mere alter ego or

instrumentality for the transaction of

the affairs of Defendants Svein

Reichborn-Kjennerud, Sandra Reichborn-

Kjennerud, and 2601 Blake Street; and to

adhere to the fiction of the corporate

entity with respect to Defendant

22

Corporate Interiors, Inc. would promote

injustice and protect the fraud alleged

in the foregoing First Averment.

Relief Requested: Plaintiff Glen K.

Sandlin requests the Court and jury to

pierce the corporate veil and hold

Defendants Svein Reichborn-Kjennerud,

Sandra Reichborn-Kjennerud, and 2601

Blake Street liable for the debts and

other liabilities of Defendant Corporate

Interiors, Inc., including the judgment

entered in Plaintiff’s favor in the

federal lawsuit alleging age

discrimination in employment against

Defendant Corporate Interiors, Inc., and

the attorney fees and costs awarded to

the Plaintiff in the federal lawsuit; to

award the Plaintiff all actual and

compensatory damages proximately caused

by the wrongful actions of Defendants

Svein Reichborn-Kjennerud, Sandra

Reichborn-Kjennerud, and 2601 Blake

Street, including, but not limited to,

damages for pain and suffering and mental

and emotional distress; to award the

Plaintiff reasonable exemplary damages

against each of these Defendants, since

the injury to Plaintiff’s person and

property is attended by circumstances of

fraud, malice, and willful and wanton

conduct; and to award the Plaintiff

interest (pre- and post-judgment), costs,

and attorney fees, and such other and

further legal and equitable relief as the

Court and jury deem appropriate.

Jury Demand: Plaintiff Glen K.

Sandlin hereby demands a trial by jury of

the alter ego claim against Defendants

Svein Reichborn-Kjennerud, Sandra

23

Reichborn-Kjennerud, and 2601 Blake

Street.

COUNT V

(Lender Liability Claim Against Defendant

Colorado National Bank)

First Averment: Plaintiff Glen K.

Sandlin hereby realleges the First,

Second, Third, Fourth, and Fifth

Averments of the foregoing Count I,

realleges the First and Second Averments

of the foregoing Count II, realleges the

First, Second, and Third Averments of the

foregoing Count III, and realleges the

First, Second, and Third Averments of the

foregoing Count IV.

Second Averment: Since at least

August of 1989, Defendant Colorado

National Bank has exercised excessive

control over the business operations of

Defendant Corporate Interiors, Inc., thus

creating a fiduciary duty in Defendant

Colorado National Bank to the creditors

of Defendant Corporate Interiors, Inc.,

including Plaintiff Glen K. Sandlin.

Third Averment: Defendant Colorado

National Bank has breached the fiduciary

duty alleged in the foregoing Second

Averment by aiding, abetting, and

participating in the wrongful actions

alleged in the foregoing First Averment.

Relief Requested: Plaintiff Glen K.-

Sandlin hereby requests the Court and

jury to hold Defendant Colorado National

Bank of Denver liable for the debts and

other liabilities of Defendant Corporate

24

Interiors, Inc., including the judgment

entered in Plaintiff’s favor in the

federal lawsuit alleging age

discrimination in employment against

Defendant Corporate Interiors, Inc., and

the attorney fees and costs awarded to

the Plaintiff in the federal lawsuit; to

award the Plaintiff all actual and

compensatory damages proximately caused

by the wrongful actions of Defendant

Colorado National Bank, including, but

not limited to, damages for pain and

suffering and mental and emotional

distress; to award the Plaintiff

reasonable exemplary damages against

Defendant Colorado National Bank, since

the injury to Plaintiff’s person and

property is attended by circumstances of

fraud, malice, and willful ana wanton

conduct; and to award the Plaintiff

interest (pre- and post-judgment), costs,

and attorney fees, and such other and

further legal and equitable relief as the

Court and jury deem appropriate.

Jury Demand: Plaintiff Glen kK.

Sandlin hereby demands a trial by jury of

the lender liability claim against

Defendant Colorado National Bank.

COUNT VI

{Successor Liability Claim Against

Defendant Interior Services, Inc.)

First Averment: Plaintiff Glen K.

Sandlin hereby realleges the First,

Second, Third, Fourth, and Fifth

Averments of the foregoing Count I, and

realleges the First and Second Averments

of the foregoing Count II.

25

Second Averment: Defendant Interior

Services, Inc. is merely a continuation

of Defendant Corporate Interiors, Inc.

The fraud alleged in the foregoing First

Averment would be worked on the creditors

of the predecessor, including Plaintiff

Glen K. Sandlin, in the absence of

successor liability.

Relief Requested: Plaintiff Glen K.

Sandlin hereby requests the Court and

jury to hold Defendant Interior Services,

Inc. liable for the debts and other

liabilities of Defendant Corporate

Interiors, Inc., including the judgment

entered in Plaintiff’s favor in the

federal lawsuit alleging age

discrimination in employment against

Defendant Corporate Interiors, Inc., and

the attorney fees and costs awarded to

the Plaintiff in the federal lawsuit; to

award the Plaintiff all actual and

compensatory damages proximately caused

by the wrongful actions of Defendant

Interior Services, Inc., including, but

not limited to, damages for pain and

suffering and mental and emotional

distress; to award the Plaintiff

reasonable exemplary damages against

Defendant Interior Services, Inc., since

the injury to Plaintiff’s person and

property is attended by circumstances of

fraud, malice, and willful and wanton

conduct; and to award the Plaintiff

interest (pre- and post-judgment), costs,

and attorney fees, and such other and

further legal and equitable relief as the

Court and jury deem appropriate.

Jury Demand: Plaintiff Glen K.

Sandlin hereby demands a trial by jury of

26

the successor liability claim against

Defendant Interior Services, Inc.

Dated this 23rd day of February,

1993.

Respectfully submitted,

David L. Smith (#006934)

Attorney for Plaintiff

1630 Welton Street

Suite 300

Denver, Colorado 80202

(303) 534-0153

Plaintiff’s address:

2903D West 8ist Avenue

Westminster, Colorado 80020

27