Opposition Brief — Sandlin v. Corporate Interiors, Inc.

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94-902 a“ wii)

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we. SHE0e OFFICE OF THE CLERK | ,

In The \

Supreme Court of the United States

October Term, 1994

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GLEN K. SANDLIN,

Petitioner,

CORPORATE INTERIORS, INC., SVEIN REICHBORN-

KJENNERUD, SANDRA REICHBORN-KJENNERUD,

2601 BLAKE STREET, COLORADO NATIONAL BANK

OF DENVER, and INTERIOR SERVICES, INC.,

Respondents.

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Petition For Writ Of Certiorari

To The Colorado Supreme Court

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RESPONDENT COLORADO NATIONAL BANK’S

OPPOSITION TO PETITIONER SANDLIN’S

PETITION FOR WRIT OF CERTIORARI

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Ketty/ HAGLUND/GARNSEY &

KAHN LLC

James W. Husseti

Counsel of Record

Va.issA A. TsOuUCARIS

300 Blake Street Building

1441 Eighteenth Street

Denver, Colorado 80202-1296

Telephone: (303) 296-9412

Attorneys for Respondent

Colorado National Bank

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

5.) EY EE oo oes dawy se cee tekncesewen 1

Ee ae 1

1. SeAP pees OP Bite CASE... 2... cccccace. 2

IV. SUMMARY OF ARGUMENT................. 5

<I a ic nics a oa ecb Ah edaendd catenin 5

A. This Court Lacks Jurisdiction Over This

MI ok Gain nt cane Vea bend MEARS eee 5

B. Alternatively, Petitioner has Failed to State

a “Special and Important” Reason for This

Court to Grant a Writ of Certiorari...... 8

1. Petitioner does not fall within the artic-

ulated reasons of Rule 10............ 8

2. Petitioner’s Petition raises no “special”

or “important” reason warranting this

Court’s exercise of its discretion to

review the Colorado Supreme Court’s

| eee reer Peery ety ors 11

a SI OS vgs hb ce tapes Red euda cee 12

aly as ae hee App. 1

ll

TABLE OF AUTHORITIES

Page

CASES

Bell v. Milwaukee, 746 F.2d 1205 (7th Cir. 1984)...... 10

Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52

L. Bd. 2b 72 CCT ik 68d eens 9

Bowman v. Niagara Machine & Tool Works, Inc., 832

P.2G 1052 470 Cie. BO poi psc accknabenucpeweneseess 9

Carter v. General American Life Ins. Co., 323 U.S.

676, 6 S. Ct. 166, GP L. Ba. Sar CHR a eke side eees 7

Citizens National Bank v. Durr, 257 U.S. 99, 42 S. Ct.

35, G6 L, Be. Be CMe ocd ccaccsc tenses tenes, 7

Joyce v. Mavromatis, 783 F.2d 56 (6th Cir. 1986) ...... 11

Maryland v. Baltimore Radio Show, Inc., 338 U.S.

912, 70S. Ce. ZZ, OO LB. Bee Ce a bo kecccass 11

McDonald v. Smith, 472 U.S. 479, 105 S. Ct.

2707, OG 1... BA. 26 FOO CEPR senha cecninsdaeees 10

NLRB v. Pittsburgh S.S. Co., 340 U.S. 498, 71 S. Ct.

S55, FS ©... BE GPO CHIE) cnc vucav pcndvesdewcesaveces 12

Putzier v. Richardson, 323 U.S. 677, 65 S. Ct. 191, 89

hn Se Se CRUE fe ho do su duo endckeeenaeeneeoernes 7

Rooker v. Fidelity Trust Co., 261 U.S. 114, 43 S. Ct.

ye See FSi. Peer rere cP errr cree 7

Sandlin v. Corporate Interiors, 92 CV 6282 (Denver

me Pere Creer tre ) ee

Thornton v. Mississippi, 323 U.S. 668, 65 S. Ct. 76,

ae Ee | pee ore er rs 7

ili

TABLE OF AUTHORITIES - Continued

Page

Wall v. Chesapeake & O. R. Co., 256 U.S. 125, 41

Ss | 7

Wilson v. Cook, 327 U.S. 474, 66 S. Ct. 663, 90 L. Ed.

EER ce BROS IES ge Pe 7

RULES

NS EEE EET PETE TOLL ETC CTE EEC 4

EOE EEGs due psscccucceccssscteceseeeesass 8,9

STATUTE

Bk oe Bro! RG | ea i a ae

Respondent Colorado National Bank (“Colorado

National”), in response to Petitioner’s (“Sandlin” or

“Petitioner”) Petition for issuance of a writ of certiorari,

states as follows:

I. OPINIONS BELOW

Petitioner has failed to cite the Court to two Denver

District Court opinions issued in the lawsuit underlying

the Colorado Supreme Court’s eventual denial of Sand-

lin’s Petition for Writ of Certiorari to that court. In the

first, the Denver District Court issued an Opinion and

Order granting defendants’ Motion for More Definite

Statement, and ordering Petitioner to file an Amended

Complaint.! Sandlin v. Corporate Interiors, 92 CV 6282

(Denver Dist. Ct. 1992), Paragraph 3 of Order dated Feb-

ruary 8, 1993 (at p. 1 of the Appendix attached hereto). In

the second, the Denver District Court issued an Opinion

and Order dismissing Petitioner's Amended Complaint.

Id. Order dated March 26, 1993 (at p. 3 of the Appendix

attached hereto).

II. JURISDICTION

It appears Petitioner intended to reference 28 U.S.C.

§ 1257(a) (1988) as the basis for invoking this Court’s

1 Defendants in the Denver District Court action are the

same as the Respondents in Petitioner’s Petition to this Court.

jurisdiction.? This section of the United States Code does

not provide a basis for invoking the Court's jurisdiction.

Colorado National’s jurisdictional argument is set forth

beginning on page 5 of this Response.

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III. STATEMENT OF THE CASE

Petitioner’s Petition to the United States Supreme

Court, which asks for a review of the Colorado Supreme

Court’s denial of a Petition for Writ of Certiorari, has its

roots in an age discrimination action successfully brought

in U.S. District Court by Sandlin in 1989 against Corpo-

rate Interiors, Inc. After entry of the judgment, Sandlin

commenced six years of litigation in an effort to coHect

the judgment from defendants having nothing to do with

the underlying discrimination claim. Sandlin v. Corporate

Interiors, 89-M-727 (D. Colo. 1989); Sandlin v. Corporate

Interiors, 90-M-1597 (D. Colo. 1990); In re Canady, 90-15194

(Bankr. D. Colo.); Sandlin v. Canady, 91-1029 (Bankr. D.

Colo.); Sandlin v. Corporate Interiors, 92 CV 6282 (Denver

Dist. Ct. 1992); Sandlin v. Corporate Interiors, 972 F.2d 1212

(10th Cir. 1992); Sandlin v. Canady, 1993 WL 26722 (1993);

Sandlin v. Corporate Interiors, 93 CA 0741 (Colo. Ct. App.

1993).

On September 15, 1992, Sandlin’s efforts to collect his

1989 judgment led Sandlin to sue Colorado National in

2 In his apparent effort to reference 28 U.S.C. § 1257(a),

Petitioner referenced 28 U.S.C. 1257(3), a former, but now non-

existent, provision of the United States Code.

state court.3 Sandlin commenced his state court action by

filing an eight-paragraph Complaint against Colorado

National and five other defendants who he claimed were

responsible for the payment of the 1989 discrimination

judgment. Because Sandlin’s Complaint failed to delin-

eate a single cause of action or to give any notice to the

defendants of which theories had been brought against

which defendants, the trial court granted defendants’

Motion for More Definite Statement and ordered Sandlin

to file an Amended Complaint. Sandlin v. Corporate Inte-

riors, 92 CV 6282 (Denver Dist. Ct. 1992), Order dated

February 8, 1993 (at p. 1 of the Appendix attached

hereto). In its Opinion and Order, the trial court warned

that if Sandlin again failed to properly plead his case, it

would be dismissed. Id.

In response, Sandlin disregarded the trial court’s

Order. Rather than to allege specific facts, as the trial

court had ordered, Sandlin merely purported to incorpo-

rate by reference into his Amended Complaint whole

categories of documents, exhibits, depositions, and trial

testimony. Sandlin failed to attach these items to his

Amended Complaint and they were not part of any pro-

ceeding to which Colorado National was a party.* Sandlin

again failed to add any substantive allegations to his

claims for relief, leaving defendants without notice of the

3 Sandlin had previously sued Colorado National in U.S.

District Court; these claims were dismissed on jurisdictional

grounds and the dismissal was affirmed by the Tenth Circuit.

Sandlin v. Corporate Interiors, 972 F.2d 1212 (10th Cir. 1992).

4 Sandlin’s Amended Complaint is set forth in the Appen-

dix to Petitioner’s Petition for Writ of Certiorari.

claims brought against them. Because Sandlin’s Amended

Complaint was not properly pleaded and failed to state

claims against defendants, the Denver District Court

granted defendants’ motions to dismiss for failure to state

claims and for failure to comply with the pleading

requirements of the Colorado Rules of Civil Procedure.

Id. Order dated March 26, 1993 (at p. 4 of the Appendix

attached hereto).

Sandlin appealed the dismissal of the Amended

Complaint to the Colorado Court of Appeals, arguing

that he had complied with all applicable pleading

requirements. Sandlin also argued for the first time that

the trial court was biased against him. The Court of

Appeals affirmed the trial court’s findings that Sandlin’s

Amended Complaint failed to state claims in compliance

with Colo.R.Civ.P. 8 and 9; the court also refused to

address Sandlin’s bias argument because it was not prop-

erly raised. Thereafter, the Court of Appeals denied Sand-

lin’s Motion for Rehearing. Throughout these

proceedings, Sandlin never once raised the issue on

which he seeks review in this proceeding: that the trial

court denied him his First Amendment right to petition

the government for a redress of grievances. Indeed, Sand-

lin never asserted any federal claims or questions of any

kind.

Sandlin then petitioned the Colorado Supreme Court

for review by certiorari, arguing he was entitled to invo-

cation of the Supreme Court’s powers of supervision

because the Court of Appeals “affirmed [the trial court’s]

Order dismissing Sandlin’s case without following, and

in blatant violation of, [the Colorado Supreme] Court’s

procedure for determining the sufficiency of a complaint

on a motion to dismiss.” Petition for Writ of Certiorari to

Colorado Supreme Court (at p. 22 of the Appendix

attached hereto). The Colorado Supreme Court denied

this petition. When Sandlin filed a petition for rehearing,

the court ordered it stricken. Not until he filed his peti-

tion for rehearing did Sandlin assert that the district court

had deprived him of his constitutional rights.

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IV. SUMMARY OF ARGUMENT

A. This Court does not have jurisdiction over this

action because Petitioner failed to raise the arguments

underlying his Petition for Writ of Certiorari in the courts

below.

B. Alternatively, Petitioner’s Petition should be

denied because no “special and important” reason pur-

suant to Supreme Court Rule 10 exists to support this

Court’s exercise of its discretion to review this matter.

¢

V. ARGUMENT

A. This Court Lacks Jurisdiction Over This Action.

The Petitioner claims this Court has jurisdiction over

the issues raised in his Petition pursuant to a now non-

existent section of the United States Code. Assuming

Petitioner’s reference is intended to be to 28 U.S.C.

§ 1257(a) (1988), then this Court does not have jurisdic-

tion over this action.

This section provides, in part, that:

[flinal judgments . . . by the highest court of the

state ... may be reviewed by the Supreme Court

by writ of certiorari . . . where any title, right,

privilege, or immunity is specially set up or

claimed under the Constitution[.]

28 U.S.C. § 1257(a).5

Petitioner is apparently seeking to invoke this

Court’s jurisdiction by claiming that his rights under the

First Amendment of the U.S. Constitution have been

abridged. However, petitioner failed to raise any claim

that his First Amendment rights had been abridged in

either his appeal to the Colorado Court of Appeals or in

his Petition for Writ of Certiorari to the Colorado

Supreme Court. Not until Petitioner’s Petition for Rehear-

ing to the Colorado Supreme Court did Petitioner raise

any claim that his constitutional rights had been violated.

5 Section 1257(a) of Chapter 28 of the United States Code

also provides for review of decisions by the highest state court

“where the validity of a treaty or statute of the United States is

drawn into question or where the validity of a statute of any

state is drawn into question . . . or where any title, right, privi-

lege, or immunity is specially set up or claimed under .. . the

treaties or statutes of, or any commission held or authority

exercised under, the United States.” Petitioner’s Petition for

Writ of Certiorari, however, does not call into question the val-

idity or constitutionality of a United States treaty or statute, or

treaty or statute of any state, nor does it set forth claims of any

“title, right, privilege, or immunity” under any United States

statute or treaty or commission. Accordingly, these provisions

of 28 U.S.C. § 1257(a) do not give this Court jurisdiction to grant

Sandlin’s Petition, and are not further addressed in this

Response.

Because Petitioner failed to preserve his First Amend-

ment argument for appellate review in the Colorado

court system, this Court lacks jurisdiction to review the

decision of the Coloradv Supreme Court.

It is clear from this Court’s opinion in Wall v. Chesa-

peake & O. R. Co., 256 U.S. 125, 41 S. Ct. 402, 65 L. Ed. 856,

857 (1921), that this Court cannot review an issue which

Petitioner failed to present to the state court of last resort

for decision. For this Court to have jurisdiction to review

the judgment of a state court of last resort, the Petitioner

must have properly preserved a constitutional question

for review. Specifically, the claimed right must have been

called to the state court of last resort’s attention prior to

its final judgment, and the decision of the state court of

last resort must have been against the right claimed. It is

too late to raise a federal question for the first time in a

petition for rehearing to the state court of last resort, after

the final judgment of the state court of last resort where it

could have been raised earlier. Wall v. Chesapeake, 256 U.S.

at 126 (jurisdiction to review writ of error not invoked

where federal question was first raised in petition for

rehearing to the Illinois Supreme Court). See also, Rooker

v. Fidelity Trust Co., 261 U.S. 114, 117, 43 S. Ct. 288, 67

L. Ed. 556, 563 (1923); Citizens National Bank v. Durr, 257

U.S. 99, 106, 42 S. Ct. 15, 16, 66 L. Ed. 149, 152 (1921);

Thornton v. Mississippi, 323 U.S. 668, 65 S. Ct. 76, 89 L. Ed.

543 (1944); Carter v. General American Life Ins. Co., 323 U.S.

676, 65 S. Ct. 188, 89 L. Ed. 549 (1944); Putzier v. Rich-

ardson, 323 U.S. 677, 65 S. Ct. 191, 89 L. Ed. 549 (1944);

and Wilson v. Cook, 327 U.S. 474, 480, 66 S. Ct. 663, 666, 90

L. Ed. 793, 799 (1946).

ee

KE

Pe

Because this Court does not have jurisdiction over

this action, Petitioner’s Petition for Writ of Certiorari

must be denied.

B. Alternatively, Petitioner has Failed to State a

“Special and Important” Reason for This Court

to Grant a Writ of Certiorari.

Pursuant to Rule 10 of the Supreme Court Rules, a

review on writ of certiorari is a matter of judicial discre-

tion that will only be had for “special and important”

reasons. Sup. Ct. R. 10. Rule 10 states three reasons which

indicate the “character of reasons” to be considered by

the Supreme Court in ruling on a Petition for Writ of

Certiorari. Id. Petitioner does not claim to come within

any of these articulated reasons, nor does Petitioner pre-

sent any other “special and important” issue warranting

this Court’s exercise of its discretion. Instead, Petitioner

asks this Court to disregard well-settled precedent on the

scope and purpose of the Petition clause of the First

Amendment.

1. Petitioner does not fall within the articu-

lated reasons of Rule 10.

Petitioner neither claims that a United States court of

appeals has rendered a decision in conflict with the deci-

sion of another United States court of appeals or a state

court of last resort nor invokes this Court’s supervisory

powers. Sup. Ct. R. 10.1(a). Similarly, Petitioner does not

claim that a state court of last resort has decided a federal

question in a way that conflicts with any articulated

decision of another state court of last resort or of a United

States court of appeals. Sup. Ct. R. 10.1(b).

Apparently, Petitioner contends (without saying so)

that the Colorado Supreme Court's denial of his Petition

for Writ of Certiorari to that court presents an important

question of federal law for review. Sup. Ct. R. 10.1(c). But

it is well settled that the Petition Clause of the First

Amendment does not elevate the routine dismissal of

Sandlin’s Amended Complaint to constitutional dimen-

sions.

Petitioner’s argument seems to be that the Colorado

Supreme Court's ruling denied him the right to petition

the courts for a redress of grievances by refusing to

review the trial court’s dismissal of his Amended Com-

plaint. Petitioner’s claim, however, confuses “access”

with “success.” Petitioner is not constitutionally entitled

to the latter. “The concept of constitutionally protected

access to courts revolves around whether an individual is

able to make use of the courts’ processes to vindicate such

rights as he may have, as opposed to the extent to which

rights actually are extended to protect or compensate

him.” Bowman v. Niagara Machine & Tool Works, Inc., 832

F.2d 1052, 1054 (7th Cir. 1987) (emphasis in original).

Claims of violation of the right of access to courts

focus on the availability of suitable court processes to

vindicate existing rights, or more commonly, the ability of

an individual to make use of those processes. Id. See, e.g.,

Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d

72 (1977) (requiring prison authorities to provide inmates

with adequate law libraries or legal assistance in order to

10

permit meaningful litigation of appeals from conviction

or other constitutional claims); Bell v. Milwaukee, 746 F.2d

1205, 1262-63 (7th Cir. 1984) (conspiracy by local officials

to conceal information that could have formed the basis

for a claim under 42 U.S.C. § 1983).

In contrast, Petitioner does not claim he has been

denied access to either state or federal courts to enforce

any right that he may have. To the contrary, Petitioner has

asserted his claims in the United States District Court, the

Tenth Circuit Court of Appeals, the United States Bank-

ruptcy Court, the Colorado District Court, the Colorado

Court of Appeals, and the Colorado Supreme Court.

In the state court action giving rise to his Petition,

Petitioner had the right under Colorado law to file a

Complaint and to proceed to trial if his Complaint stated

claims against defendants. After giving Sandlin two

opportunities to state a claim, the trial court invoked

state law to dismiss Sandlin’s case. The Colorado Court of

Appeals invoked state law to affirm the trial court’s dis-

missal and the Colorado Supreme Court properly refused

to review this ruling on a writ of certiorari.

Petitioner was never denied access to the courts.

Instead, Petitioner wilfully failed to comply with state

procedural rules in pleading his Complaint and Amended

Complaint. Because there is no reason to believe that had

Petitioner properly pleaded his case, that a Colorado

court and jury would be unavailable and would not do

justice between the parties, Petitioner has failed to raise

an important federal question for review. See McDonald v.

Smith, 472 U.S. 479, 484, 485, 105 S. Ct. 2787, 2790, 2791,

86 L. Ed. 2d 384, 390 (1985) (privilege conferred by the

Dente A eo enh Ek

11

petition clause is not absolute); Joyce v. Mavromatis, 783

F.2d 56, 57 (6th Cir. 1986) (where plaintiff's complaint

dismissed for failure to state a claim, plaintiff not denied

First Amendment access to the courts or her right to

petition the government for redress of grievances).

2. Petitioner’s Petition raises no “special” or

“important” reason warranting this Court’s

exercise of its discretion to review the Colo-

rado Supreme Court's decision.

For these and other reasons, Petitioner has failed to

raise any “special” or “important” reasons for this Court

to exercise its discretion to review the decision of the

Colorado Supreme Court. In the lengthy history of this

case, Colorado’s state courts, including the Denver Dis-

trict Court and the Court of Appeals, merely invoked

Colorado state law to require a litigant to comply with

the rules of procedure that govern the litigation process.

There is nothing unusual or noteworthy about a routine

dismissal of a complaint for failure to state a claim.

Other considerations dictate against review as well.

First, the Colorado Supreme Court’s decision is support-

able as a matter of state law and thus is not subject to

review by the U.S. Supreme Court. Maryland v. Baltimore

Radio Show, Inc., 338 U.S. 912, 70 S. Ct. 252, 94 L. Ed. 562

(1950). The trial court merely dismissed Sandlin’s com-

plaints because they failed to state claims. Second, the

decisions of the Colorado courts are not subject to review

because they never ruled on a question of federal law. Id.

Third, Petitioner fails to demonstrate how the Colorado

12

Supreme Court's denial of his Petition involves any prin-

ciples the settlement of which is of importance to the

public, as distinguished from the parties. NLRB v. Pit-

tsburgh S.S. Co., 340 U.S. 498, 71 S. Ct. 453, 95 L. Ed. 479

(1951). Finally, Petitioner has not identified a federal

question of substance not previously considered by the

Supreme Court, or inconsistent with its decisions. Rather,

there is a well developed body of law addressing a liti-

gant’s First Amendment right to petition the government

for a redress of grievances.

VI. CONCLUSION

This Court does not have jurisdiction over this

action. Alternatively, Petitioner’s Petition presents no

special or important reasons warranting this Court’s exer-

cise of its discretion over this action. Accordingly, Colo-

rado National asks that this Court deny Sandlin’s Petition

for Writ of Certiorari.

Respectfully submitted,

Ke.tity/HAGLUND/GaARNSEY & KAHN LLC

James W. Hussetr

VatissA A. TSOUCARIS

300 Blake Street Building

1441 Eighteenth Street

Denver, Colorado 80202-1296

Telephone: (303) 296-9412

Attorneys For Respondent

Colorado National Bank

Dated: December 13, 1994

No. 94-259

¢

In The

Supreme Court of the United States

October Term, 1994

¢

GLEN K. SANDLIN,

Petitioner,

CORPORATE INTERIORS, INC., SVEIN REICHBORN-

KJENNERUD, SANDRA REICHBORN-KJENNERUD,

2601 BLAKE STREET, COLORADO NATIONAL BANK

OF DENVER, and INTERIOR SERVICES, INC.,

Respondents.

Petition For Writ Of Certiorari

To The Colorado Supreme Court

¢

APPENDIX TO RESPONDENT

COLORADO NATIONAL BANK’S OPPOSITION

TO PETITIONER SANDLIN’S PETITION

FOR WRIT OF CERTIORARI

¢

INDEX TO APPENDIX

Page

Order of Court (Denver District Court, February

og Mh teh EO EC ENTE TREE TTP ore ee App. 1

a EEE OS ee ET ene e Pr bey Sy ry App. 4

Petition for Writ of Certiorari to Colorado

PN INN 55555 cds and cee Vaxcawecarsbulee App. 9

App. 1

DISTRICT COURT, CITY AND COUNTY OF DENVER,

STATE OF COLORADO

Civil Action No. 92CV6282 Courtroom 9

ORDER ON PENDING MOTIONS - FEBRUARY 8, 1993

GLEN K. SANDLIN,

Plaintiff,

v.

CORPORATE INTERIORS, INC., SVEIN REIGHBORN-

KJENNERUD, SANDRA REICHBORN-KJENNERUD,

2601 BLAKE STREET, COLORADO NATIONAL BANK

OF DENVER, and INTERIOR SERVICES, INC.,

Defendants.

This case is before the Court on several Motions filed by

the parties:

1. Plaintiff’s Motion for Reconsideration [of the Court's

February 1, 1993, Order] was filed on February 4, 1993.

Attached is a date-stamped copy of an Affidavit of Ser-

vice with Summons and Complaint attached, dated Janu-

ary 20, 1993. It was not in the Court’s file when the Court

reviewed the matter on February 1, 1993. The Order of

Dismissal Without Prejudice of Interior Services, Inc. is

VACATED.

2. The Court notes the filing of an Answer by Defendant

Interior Services, Inc. on February 4, 1993. The Motion by

this Defendant to Hold Complaint in Abeyance Against

App. 2

Defendant Interior Services, Inc. is DENIED. This Defen-

dant alleges that the same issue of corporate successor

liability is pending before the United States Bankruptcy

Court in Case No. 91-1029 CEM. That matter has not yet

been set for trial and, as far as the Court can determine,

there is no automatic stay in effect as to Defendant Inte-

rior Services, Inc. The Court will allow this Defendant to

rely upon materials which may have been disclosed to the

Plaintiff in the federal case in answering discovery

requests in this case. If and when there is a decision by

the Bankruptcy Court on the issue of corporate successor

liability, the Defendant may file whatever motions it

deems appropriate. However, the Court will not delay

this case as to one Defendant.

3. Defendants’ [Corporate Interiors, Inc. and Svein

Reichborn} Motion to Dismiss or, alternatively, for More

Definite Statement was filed on January 19, 1993. Plain-

tiff’s response was filed on February 5, 1993. Defendants’

Motion is GRANTED in that the Court ORDERS that

Plaintiff file an Amended Complaint in this case by Feb-

ruary 23, 1993. The Amended Complaint shall delineate

specific claims for causes of action as defined in the

Colorado Jury Instructions, Third Edition, and shall fur-

ther state against which Defendant(s] the claim is being

brought. There appear to be in the eight undelineated

paragraphs of the present Complaint, allegations of fraud

and civil conspiracy. The Amended Complaint shall plead

those claims pursuant to C.R.C.P. 9(b). If the elements of

each cause of action identified in the Amended Com-

plaint are not plead, as outlined in CJI 3d, and with the

specificity required by the Colorado Rules of Civil Pro-

cedure, this action will be dismissed. The Court has no

App. 3

idea what is being alleged in the present Complaint,

although apparently the parties have been living with

this case for years in the federal system. Insofar as the

Defendants request dismissal of this action, their Motion

is DENIED.

4. This case appears now to be at issue. Plaintiff is

ORDERED to set the case for trial by February 23, 1993,

on a Notice to Set.

DATE: February 8, 1993

BY THE COURT:

/s/ Lynne M. Hufnagel

Lynne M. Hufnagel

District Court Judge

cc: Counsel of Record

App. 4

DISTRICT COURT, CITY AND COUNTY OF DENVER,

STATE OF COLORADO

Civil Action No. 92CV6282 Courtroom 9

ORDER ON PENDING MOTIONS

GLEN K. SANDLIN,

Plaintiff,

V.

CORPORATE INTERIORS, INC., SVEIN REICHBORN-

KJENNERUD, SANDRA REICHBORN-KJENNERUD,

2601 BLAKE STREET, COLORADO NATIONAL BANK

OF DENVER, and INTERIOR SERVICES, INC.,

Defendants.

This case is before the Court for review of the Plaintiff’s

Amended Complaint filed February 23, 1993, in response

to the Court’s February 8, 1993, written Order. Several

Motions from the Defendants followed the filing of the

Amended Complaint.

1. The original Complaint in this case was filed on Sep-

tember 25, 1992. It contained eight paragraphs of allega-

tions on three and one-half single-spaced typewritten

pages. The Amended Complaint was filed on February

23, 1993, and contains six “Counts” on nine single-spaced

typewritten pages.

2. In the Amended Complaint, there are no concise

statements identifying the parties and their relationship

App. 5

to one another. There are no statements regarding juris-

diction or venue. The averments contained in the

Amended Complaint are not “simple, concise, and direct”

as required by C.R.C.P. 8(e).

3. The only dates stated in the nine pages of the Com-

plaint are “[s]ince at least August of 1983 and continuing

to the present” in the first averment of the first count, and

dates by month or year in some of the other averments.

Because Plaintiff is alleging fraudulent conveyances pur-

suant to C.R.S. 38-10-117, his averments concerning fraud

must “be stated with particularity.” C.R.C.P. 9(b). They

are not. There is not one identified conveyance identified

by property conveyed or date of conveyance or circum-

stance of conveyance which suggest that fraud was

involved. Typical are that vague statements made in para-

graphs A, B, D, E, and F under the second averment in

Count I, which alleges a civil conspiracy claim. Count II

which is a “Statute of Frauds Claim” against all Defen-

dants merely incorporates the previous vague and impre-

cise allegations of the Count I.

4. Count III is a claim for Breach of Fiduciary Duty

against Defendant Svein Reichborn-Kjennerud. Plaintiff

alleges that this Defendant, as an officer, director, and

shareholder of Defendant Corporate Interiors, Inc., owed

a fiduciary duty to him because he was a corporate

creditor. It appears from the Complaint that Plaintiff was

an adversary of this corporation in a federal civil action.

Under such circumstances it is difficult to understand

how Defendant Reichborn-Kjennerud could owe any

fiduciary duty to Plaintiff, and other than stating the

above relationship, Plaintiff in his Complaint does not

state how that relationship established such a duty,

|

App. 6

breach of which could substantiate this claim. Alexander v.

Packard, 754 P.2d 780 (Colo.App. 1988); Walk-In Medical

Centers v. Breuer Capital Corporation, 778 F. Supp. 1116

(D.C. Colo. 1991). Count III, as presently plead, fails to

state a claim against this Defendant.

5. Count IV is an “Alter Ego Claim” against Defendants

Svein and Sandra Reichborn-Kjennerud and 2601 Blake

Street which recites the elements necessary for such a

claim but states no specific facts as required by C.R.C.P. 8.

6. Count V is a lender liability claim against Defendant

Colorado National Bank alleging that this financial insti-

tution exercised excessive control over the business oper-

ations of Defendant Corporate Interiors, Inc. thus

creating a fiduciary duty in this Defendant to Plaintiff as

a creditor. Again, the Court cannot determine how this

Defendant, as a creditor of Corporate Interiors could

have a fiduciary duty to the Plaintiff as a competing

creditor. Plaintiff states no facts to support his allegation

of “excessive control”. Count V fails to state a claim

against Defendant Colorado National Bank.

7. Plaintiff cannot solve his total lack of specific factual

statements to support his legal conclusions by incorporat-

ing “post judgment Rule 69(a) proceedings in the federal

lawsuit referred to in the Third Averment” particularly

not when no such statements are repeated in the Com-

plaint and the statements made, allegedly, in sworn testi-

mony, are not appended to the Complaint. Defendants

cannot possibly respond intelligently to such an allega-

tion. Likewise, Plaintiff cannot establish the facts for his

Complaint by attempting to incorporate “depositions,

deposition exhibits, and sworn trial testimony” from a

App. 7

personal bankruptcy case involving a debtor who is not a

party. The Court has no idea who Douglas L. Canady is

nor what is contained in the evidence Plaintiff attempts to

incorporate.

8. After the filing of the Amended Complaint on Febru-

ary 23, 1993, Defendants Corporate Interiors, Inc., the

Reichborn-Kjennerud’s, and 2601 Blake Street filed their

Motion to Dismiss Plaintiff's Amended Complaint citing

the appropriate pleading rules of the Colorado Rules of

Civil Procedure. That Motion was filed on March 5, 1993.

On March 8, 1993, Defendant Interior Services, Inc. filed

its Motion for More Definite Statement or in the alterna-

tive, to Strike Portions of or Dismiss the Amended Com-

plaint. This Defendant notes the impossibility of

responding to unidentified statements and evidence from

other cases which Plaintiff attempts to incorporate into

his Complaint. On March 17, 1993, Defendant Colorado

National Bank filed its Joinder in Motions to Dismiss

Amended Complaint, specifically referring to the lack of

specificity alleged in Count I, Civil Conspiracy and Count

V, Lender Liability, both of which “as fraud based claims,

are subject to the particularity requirements of pleading

contained in Rule 9(b).”

9. Plaintiff's response to these Motions was filed on

March 19, 1993. It is totally inadequate to refute the

grounds stated by the Defendants in their Motions to

Dismiss. Plaintiff points to the incorporated evidence

from other cases as supporting his argument that the

Complaint is specific in its allegations. As stated above,

that does not solve Plaintiff's pleading problem because

the Court has no clue what it is that is being incorpo-

rated. :

App. 8

10. All Defendants’ Motions to Dismiss are GRANTED,

the Court finding that Plaintiff has failed to state a claim

for relief as to certain counts plead and has failed to

comply with the Colorado Rules of Civil Procedure, spec-

ifically Rules 8 and 9, in all nine pages of his Complaint.

Because the Court had previously, in its February 8, 1993,

Order given Plaintiff the opportunity to amend his Cora-

plaint and submit it in proper form, the Plaintiff will not

again be given that opportunity. This case is DISMISSED

WITHOUT PREJUDICE. The remaining motions filed by

the parties are MOOT.

DATE: March 26, 1993

BY THE COURT:

/s/ Lynne M. Hufnagel

Lynne M. Hufnagel

District Court Judge

cc: Counsel of Record

App. 9

SUPREME COURT, STATE OF COLORADO

Case No. 945C259

PETITION FOR WRIT OF CERTIORARI

GLEN K. SANDLIN,

Petitioner,

vV.

CORPORATE INTERIORS, INC.; SVEIN REICHBORN-

KJENNERUD; SANDRA REICHBORN-KJENNERUD;

2601 BLAKE STREET; COLORADO NATIONAL BANK;

INTERIOR SERVICES, INC.,

Respondents.

Petitioner Glen K. Sandlin hereby submits the follow-

ing Petition for Writ of Certiorari:

I. ADVISORY LISTING OF ISSUE PRESENTED FOR

REVIEW

Whether the Colorado Court of Appeals has so far

departed from the accepted and usual course of judicial

proceedings with respect to the issue of determining the

sufficiency of a complaint on a motion to dismiss, or so

far sanctioned such procedure by Denver District Judge

Lynne M. Hufnagel, as to call for the exercise of the

Supreme Court’s power of supervision.

App. 10

II. OPINION BELOW

Reference is hereby made to the unpublished Opin-

ion issued by the Court of Appeals on March 3, 1994.

Ii. JURISDICTION

On April 7, 1994, the Court of Appeals issued its

Order denying Mr. Sandlin’s Petition for Rehearing (Filed

on March 16, 1994). There was no order granting an

extension of time within which to petition for certiorari.

IV. STATEMENT OF THE CASE

This case was filed in the Denver District Court on

September 25, 1992, District Judge Lynne M. Hufnagel

presiding. Mr. Sandlin’s Complaint and Jury Demand

charged a conspiracy by and among Respondents Corpo-

rate Interiors, Inc., Svein Reichborn-Kjennerud, Sandra

Reichborn-Kjennerud, 2601 Blake Street, Colorado

National Bank, and Interior Services, Inc. to prevent Mr.

Sandlin from enforcing his federal court judgment for

intentional and willful age discrimination in employ-

ment.

On February 8, 1993, Judge Hufnagel issued the fol-

lowing Order:

3. Defendants’ [Corporate Interiors, Inc.

and Svein Reichborn-Kjennerud] Motion to Dis-

miss or, alternatively, for More Definite State-

ment was filed on January 19, 1993. Plaintiff's

Response was filed on February 5, 1993. Defen-

dants’ Motion is GRANTED in that the Court

ORDERS that Plaintiff file an Amended Com-

plaint in this case by February 23, 1993. The

App. 11

amended Complaint shall delineate specific

claims for causes of action as defined in the

Colorado Jury Instructions, Third Edition, and

shall further state against which Defendant [{s]

the claim is being brought. There appear to be in

the eight undelineated paragraphs of the pre-

sent Complaint, allegations of fraud and civil

conspiracy. The Amended Complaint shall plead

those claims pursuant to C.R.C.P. 9(b). If the

elements of each cause of action identified in the

amended Complaint are not pled, as outlined in

CJI 3d, and with the specificity required by the

Colorado Rules of Civil Procedure, this action

will be dismissed. The Court has no idea what is

being alleged in the present Complaint,

although apparently the parties have been living

with this case for years in the federal system.

Insofar as the Defendants request dismissal of

this action, there Motion is DENIED.

On February 23, 1993, Mr. Sandlin filed his Amended

Complaint setting forth six specific counts or claims as

causes of action: conspiracy, statute of frauds, breach of

fiduciary duty, alter ego, lender liability, and successor

liability. Each count or claim named the parties against

whom the count or claim was being brought, and

included separate numbered averments with separate let-

tered subparts. While the portion of Judge Hufnagel’s

Order requiring Mr. Sandlin to “delineate specific claims

for causes of action as defined in the Colorado Jury

Instructions, Third Edition” was impossible to comply

with,! each cause of action was pled with the specificity

1 CJI 3rd does not define the elements of the causes of

action for the claims being pursued by Mr. Sandlin.

App. 12

required by the Colorado Rules of Civil Procedure,

including C.R.C.P. 9(b).

On March 26, 1993, Judge Hufnagel issued the fol-

lowing Order:

10. All Defendants’ Motions to Dismiss are

GRANTED, the Court finding that Plaintiff has

failed to state a claim for relief as to certain

counts pled and has failed to comply with the

Colorado Rules of Civil Procedure, specifically

Rules 8 and 9, in all nine pages of his Com-

plaint. Because the Court had previously, in its

February 8, 1993, Order given Plaintiff the

opportunity to amend his Complaint and submit

it in proper form, the Plaintiff will not again be

given that opportunity. This case is DISMISSED

WITHOUT PREJUDICE. The remaining motions

filed by the parties are MOOT.

Mr. Sandlin subsequently appealed, and on March 3,

1994, the Court of Appeals issued its unpublished Opin-

ion affirming Judge Hufnagel’s (March 26, 1993) Order

dismissing Mr. Sandlin’s case.

Il. ARGUMENT

The Court of Appeals found and concluded that Mr.

Sandlin’s Amended Complaint failed to give the Respon-

dents adequate notice of the events or transactions upon

which he based his claims. However, Count I of Mr.

Sandlin’s Amended Complaint stated as follows:

First Averment: Since at least August of

1983 and continuing to the present, Defendants

Corporate Interiors, Inc., Svein Reichborn-

Kjennerud, Sandra Reichborn-Kjennerud, 2601

App. 13

Blake Street, Colorado National Bank, and Inte-

rior Services, Inc. have engaged in a course of

concerted conduct amounting to a conspiracy

with each other and with unknown third per-

sons 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.?

Second Averment: 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 prop-

erty:

A. On numerous occasions between

August of 1983 and August of 1989, Defen-

dants Svein Reichborn-Kjennerud, made

unauthorized pledges of property owned by

Defendant Corporate Interiors, Inc. as col-

lateral for loans made by Deferidant Colo-

rado 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, Defendant Svein Reichborn-

Kjennerud, was officer, director, and share-

holder of Defendant Corporate Interiors,

Inc., and was also general partner with his

2 Respondent Interior Services, Inc. did not join the con-

spiracy until November of 1989.

App. 14

wife, Defendant Sandra Reichborn-Kjennerud,

in Defendant 2601 Blake Street. Defendant

Colorado National Bank made the loan to

Defendant 2601 Blake Street despite its knowl-

edge 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 convey-

ances and charges, Defendant Svein Reich-

born-Kjennerud was officer, director, and

shareholder of Defendant Corporate Inte-

riors, 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.

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

App. 15

employment against Defendant Corporate

Interiors, Inc.

C. In October of 1989, Defendant

Svein Reichborn-Kjennerud and his attor-

neys successfully delayed the trial of Plain-

tiff’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 pro-

ceeds 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 the trial and entry of judg-

ment. 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, Defen-

dants Svein Reichborn-Kjennerud, and Col-

orado National Bank conveyed a substantial

portion of the remaining assets of Defen-

dant Corporate Interiors, Inc. to Defendant

Interior Services, Inc., which continued

Defendant Corporate Interiors, Inc.’s busi-

ness at the same location in Denver, Colo-

rado with essentially the same jobs,

employees, and supervisors under essen-

tially 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

App. 16

Interiors, Inc. Defendants Svein Reichborn-

Kjennerud, Colorado National Bank, and

Interior Services, Inc. entered into the con-

veyance of assets fraudulently to attempt to

escape liability for the debts of Defendant

Corporate Interiors, Inc., including liability

for the age discrimination claim being pur-

sued 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 agree-

ment requiring the proceeds from the sale of

the property owned by Defendant Corpo-

rate 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 per-

sonal guarantors on the loans, to pay off the

remaining balance on the loans and thus

prevent foreclosure on their home in

Denver, Colorado, no provision is made or

consideration given for paying off the credi-

tors of Defendant Corporate Interiors, Inc.,

including Plaintiff Glen K. 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 Corpo-

rate Interiors, Inc. to assist in the repayment

of the loans made by Defendant Colorado

App. 17

National Bank to Defendant 2601 Blake Street.

Upon information and belief, Defendant Colo-

rado 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 wrong-

ful actions alleged in the foregoing First and

Second Averments, Defendant Corporate Inte-

riors, 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 Inte-

riors, 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 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

postjudgment Rule 69(a) proceedings in the fed-

eral 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 rel-

evant 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.

Fifth Averment: Plaintiff Glen K. Sandlin

did not discover the wrongful actions alleged in

App. 18

the foregoing First, Second, and Third Aver-

ments until August and September of 1990 dur-

ing the postjudgment Rule 69(a) proceedings

referred to in the foregoing Fourth Averment.*

Additional evidence was 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 incorpo-

rated into this Count I by reference for all pur-

poses.

The Court of Appeals misapprehended or overlooked the

foregoing averments in finding and concluding that Mr.

Sandlin’s Amended Complaint failed to give the Respon-

dents adequate notice of the events or transactions upon

which he based his claims.

The Court of Appeals found and concluded that the

breach of fiduciary duty allegations failed to indicate

what duty Respondents Svein Reichborn-Kjennerud had

to Mr. Sandlin, or how it was breached, under “any

theory of law.” However, Count III of Mr. Sandlin’s

Amended Complaint stated as follows:

First Averment: Plaintiff Glen K. Sandlin

hereby realleges the First, Second, Third,

Fourth, and Fifth Averments of the foregoing

3 On November 30, 1990, United States District Judge Rich-

ard 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.

App. 19

Count I, and realleges the First and Second

Averments of the foregoing Count II.

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

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 per-

sons 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 convey-

ances of and charges upon the property of

Defendant Svein Reichborn-Kjennerud thus

divested corporate property for his own use or

benefit, or for the use or benefit of related per-

sons or entities, and thereby defeated the claims

of corporate creditors, including Plaintiff Glen

K. Sandlin. |

As officer, director and shareholder of Respondent Cor-

porate Interiors, Inc. — an insolvent corporation - Respon-

dent Svein Reichborn-Kjennerud owed a fiduciary duty

to corporate creditors, including Mr. Sandlin, 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. Ficor Inc.

v. McHugh, 639 P.2d 385 (Colo. 1982); Collie v. Becknell, 762

P.2d 727 (Colo. App. 1988); B & K Distributing v. Drake

App. 20

Building Corp., 654 P.2d 324 (Colo. App. 1982); Rosebud

Corporation v. Boggio, 561 P.2d 367 (Colo. App. 1977);

Crowley v. Green, 365 P.2d 230 (1961). The Court of

Appeals misapprehended or overlooked the foregoing ;

points of law and fact in finding and concluding that the

breach of fiduciary duty allegations failed to indicate

what duty Respondent Svein Reichborn-Kjennerud had to

Mr. Sandlin, or how it was breached, under “any theory

of law.”

The Court of Appeals found and concluded that the

lender liability allegations failed to indicate what duty

Respondent Colorado National Bank had to Mr. Sandlin,

or how it was breached, under “any theory of law.”

However, Count V of Mr. Sandlin’s Amended Complaint

stated as follows:

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 Aver-

ments of the foregoing Count II, realleges the

First, Second, and Third Averments of the fore- |

going 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

App. 21

alleged in the foregoing Second Averment by

aiding, abetting, and participating in the wrong-

ful actions alleged in the foregoing First Aver-

ment.

By exercising excessive control over the business opera-

tions of Respondent Corporate Interiors, Inc. — an insol-

vent corporation — Respondent Colorado National Bank

occupied a fiduciary relationship to corporate creditcrs,

including Mr. Sandlin. Id. The Court of Appeals misap-

prehended or overlooked the foregoing points of law and

fact in finding and concluding that the lender liability

allegations failed to indicate what duty Respondent Colo-

rado National Bank had to Mr. Sandlin, or how it was

breached, under “any theory of law.”

In Shapiro and Meinhold v. Zartman, 823 P.2d 120

(Colo. 1992), this Court said:

‘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 is 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. Dillinger v. North Sterling

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,

App. 22

633 P.2d 455, 467 (Colo. 1981); McDonald v. Lake-

wood Country Club, 170 Colo. 355, 461 P.2d 437

(1969).

Id. at 122-23.

In the present case, the Court of Appeals affirmed

Judge Hufnagel’s (March 26, 1993) Order dismissing Mr.

Sandlin’s case without following, and in blatant violation

of, this Court’s procedure for determining the sufficiency

of a complaint on a motion to dismiss. The Court of

Appeals has therefore so far departed from the accepted

and usual course of judicial proceedings, or so far sanc-

tioned such procedure by Judge Hufnagel, as to call for

the exercise of this Court’s power of supervision.

Dated this 6th day of May, 1994.

Respectfully submitted,

/s/ David L. Smith

David L. Smith (#006934)

Attorney for Petitioner

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

App. 23

CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of May, 1994, true

and correct copies of the foregoing Petition for Writ of

Certiorari were placed in the United States mail, postage

prepaid, addressed as follows:

Frank W. Visciano, Esq.

SENN LEWIS VISCIANO

HOTH & STRAHLE, P.C.

1801 California Street, Suite 4300

Denver, Colorado 80202

James W. Hubbell, Esq.

KELLY/HAGLUND/GARNSEY & KAHN

300 Blake Street Building

1441 Eighteenth Street

Denver, Colorado 80202-1296

Cynthia J. Hyman, Esq.

WITTMAN & MCCORD

2170 South Parker Road

Suite 230

Denver, Colorado 80231

/s/ David L. Smith

App. 24

COLORADO COURT OF March 3, 1994

APPEALS NOT SELECTED FOR

No. 93CA0741 PUBLICATION

Glen K. Sandlin,

Plaintiff-Appellant,

v.

Corporate Interiors, Inc.; Svein Reichborn-Kjennerud;

Sandra Reichborn-Kjennerud; 2601 Blake Street; Colorado

National Bank of Denver; and Interior Services, Inc.,

Defendants-Appellees.

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

David L. Smith, Denver, Colorado, for Plaintiff-Appellant

Senn Lewis Visciano & Strahle, P.C., Frank W. Visciano,

Brian J. Reichel, Denver, Colorado, for Defendants-

Appellees Corporate Interiors, Inc., Svein Reichborn-

Kjennerud, Sandra Reichborn-Kjennerud, and 2601 Blake

Street

Kelly /Haglund/Garnsey & Kahn, James W. Hubbell, Val-

issa A. Tsoucaris, Denver, Colorado, for Defendant-

Appellee Colorado National Bank

No Appearance for Defendant-Appellee Interior Services,

Inc.

App. 25

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 affirm.

Plaintiff filed a complaint which contained eight

numbered paragraphs of 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 delireating specific causes of action “as

defined in the “.olorado Jury Instructions, Third Edition,”

stating agairst 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 then filed an amended complaint alleging six

numbered counts: a conspiracy claim against all defen-

dants; a “statute of frauds” claim against all defendants; a

breach of fiduciary duty 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,

App. 26

and depositions in “postjudgment Rule 69(a) proceedings

in the federal lawsuit” and the “personal bankruptcy case

of 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 com-

plaint 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 com-

plaint 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 duty against Svein

Reichborn-Kjennerud and lender liability against Colo-

rado National Bank. The court noted that there were no

concise statements identifying the parties or their rela-

tionship to one another, no statements regarding jurisdic-

tion or venue, and the averments were not “simple,

concise, and direct.” Although the plaintiff alleged fraud-

ulent 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 com-

plied with the pleading requirements of the prior order,

App. 27

the Colorado Rules of Civil Procedure, and applicable

case law. We disagree.

In reviewing the trial court’s dismissal of the com-

plaint, 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.

National Camera, Inc. v. Sanchez, 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.

Shapiro & Meinhold v. Zartman, 823 P.2d 120 (Colo. 1992);

Eliminator, Inc. v. 4700 Holly Corp., 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 mate-

rial 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

App. 28

main facts or incidents which constitute the fraud. Fidelity

Finance Co. v. Groff, 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 Borwick v.

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 ineffec-

tive 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); Spomer v. City of Grand

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 instruc-

tions are not all-inclusive or encyclopedic). Also, to the

extent plaintiff sought equitable relief, CJI-Civ. 3d is inap-

plicable. 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 plain-

tiff’s amended complaint failed to show that he was

entitled to some relief “upon any theory of law.” Cf.

App. 29

Borwick v. Bober, supra (when with “diligent and exhaus-

tive 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 insuffi-

ciently pled, but the breach of fiduciary duty and lender

liability allegations failed to indicate what duty defen-

dants 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 is 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.

App. 30

THE COURT OF APPEALS OF THE

STATE OF COLORADO

Case Number 93CA0741

ORDER

GLEN K. SANDLIN V CORPORATE INTERIORS, INC.,

ET AL

Upon consideration of the Petition for Rehearing filed by

the Appellant herein, the Petition is hereby DENIED. It is

ordered that issuance of the Mandate is stayed to and

including May 09, 1994 provided that if a Petition for Writ

of Certiorari is timely filed with the Supreme Court of the

State of Colorado, the stay shall remain in effect until

disposition of the cause by the Supreme Court.

BY THE COURT:

Taubman, J.

Criswell, J.

Davidson, J.

DATED: April 07, 1994

(seal)