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HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 035 - Motion To Bifurcate And Continue TrialDISTRICT COURT OF LARIMER COUNTY, STATE OF COLORADO Court address: 201 Laporte Ave. Fort Collins, CO 80621 T: (970) 494-3500 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, STATE OF COLORADO Court Use Only Attorneys for Plaintiffs: Laura Browne, # 46673 Ashley Fridovich, # 47538 WILHITE, ROSE, MCCLURE & SAWAYA, P.C. 1600 Ogden Street Denver, CO 80218 Phone Number: (303) 839-1650 FAX Number: (303) 832-7102 E-mail: lbrowne@sawayalaw.com afridovich@sawayalaw.com Case Number: 19CV32927 Courtroom: 424 PLAINTIFFS’ MOTION TO BIFURCATE CLAIMS AND CONTINUE TRIAL FOR PLAINTIFF KATRINA RICHMAN ONLY COME NOW, Plaintiffs, through their counsel Wilhite, Rose, McClure & Sawaya, P.C., pursuant to C.R.C.P. Local Rule 121 and C.R.P.C. 1.16, hereby submits the following Motion. For the following reasons and good cause, Plaintiffs request this Motion be granted, Plaintiffs’ claims be bifurcated, and trial be continued for Plaintiff Katrina Richman forthwith. C.R.C.P. 121 CONFERRAL Plaintiffs’ counsel has conferred with counsel for Defendant, who opposes the Motion to Bifurcate Claims and has given no position on the Motion to Continue Trial in the event counsel is permitted to withdraw as counsel for Plaintiff Richman. 1. This matter was filed on May 29, 2020 under C.R.C.P. 16. 2. On July 12, 2021, this matter was set for a five-day jury trial to begin November 15, 2021. The Pre-Trial Conference is scheduled for November 1, 2021 at 1:30 p.m. 3. This case concerns a motor vehicle collision which occurred June 6, 2017 in Fort Collins, Colorado. Plaintiff Richman was a passenger in a taxi cab driven by Plaintiff Cross when it was struck by a dump truck driven by Mr. Antonio Lopez. Mr. Lopez, since deceased, was employed by the Defendant, City of Fort Collins, at the time of the collision. Defendant has admitted Mr. Lopez was acting in the course and scope of his employment at the time of the collision. 4. Both Plaintiffs are claiming negligence against Defendant and damages resulting from injuries they sustained in the collision. 5. Disclosures and written discovery have been exchanged between the parties. The depositions of both Plaintiffs have been taken. Both parties have submitted their expert disclosures and Plaintiffs submitted rebuttal expert disclosures. 6. Counsel for Plaintiffs has filed a Motion to Withdraw as counsel for Plaintiff Katrina Richman concurrently with this Motion. In her Motion to Withdraw, counsel for Plaintiffs cited to Colorado Rules of Professional Conduct, Rule 1.16(b)(2), (4) and (5) as basis for why she could no longer effectively represent Ms. Richman. 7. Counsel for Plaintiffs does not wish to prejudice Ms. Richman in her case and t herefore requests the Court bifurcate her claim from that of Plaintiff Stuward Cross, which would allow her trial to be continued to a date not less than six months from the date of this Motion. This would enable Ms. Richman to locate counsel to take over her case and give that counsel adequate time to prepare for trial. 8. C.R.C.P. 42(a) gives the trial court discretion as to whether there should be separate trials or joint trials. A court order as to a joint or separate trial under this Rule will not be disturbed in the absence of a clear showing that there has been an abuse of discretion. Moseley v. Lamirato, 370 P.2d 450 (Colo. 1962). The court’s ruling is an abuse of discretion if it is manifestly arbitrary, unreasonable, or unfair. Hoffman v. Westmoreland Co., 205 P.3d 501,510 (Colo. App. 2009). 9. C.R.C.P. 42(b) states that a trial court may order a separate trial of any separate issue or of a numbers of claims or issues in the furtherance of convenience, or to avoid prejudice. (emphasis added). The bifurcation of Plaintiffs’ claims is necessary in this case to avoid prejudice to Ms. Richman. 10. Plaintiff Stuward Cross and Plaintiff Katrina Richman’s cases were filed together because they were both in the same vehicle when it was struck by the vehicle owned by Defendant City of Fort Collins. However, Mr. Cross was simply a taxi cab driver and Ms. Richman was his fare. The Plaintiffs are not related in any way, and have no familial relationship. While the two Plaintiffs had known each other before this incident, they do not maintain regular contact. 11. Counsel for Plaintiffs does not have authority from Mr. Cross to move to continue his trial date and he would be prejudiced by his trial date being continued when the subject collision was more than four years ago. 12. Defendant opposes this Motion. Defendant’s position is that bifurcating the claims and continuing Ms. Richman’s trial prejudices Defendant by forcing it to essentially try the case twice. While continuing trial five weeks out for one Plaintiff necessarily does cause some prejudice, the danger of unfair prejudice to Ms. Richman is far greater. 13. Counsel for Plaintiffs has good cause and should be granted her Motion to Withdraw as counsel from Ms. Richman’s case. Leaving Ms. Richman without counsel five weeks prior to trial constitutes unfair prejudice that would certainly lead to appealable issues in her trial. 14. While both sides have done some trial preparation work, rescheduling Ms. Richman’s trial will allow that work to be utilized at a later time. 15. Counsels for the parties have conferred previously regarding witnesses for trial and agreed the bulk of the witnesses could be completed within two days. The parties are exchanging witness lists on the day of this filing, October 11, but, upon information and belief, Plaintiffs’ counsel is calling up to seven witnesses and Defendant is calling one witness. Plaintiffs’ witnesses include three lay witnesses, a police officer, the Plaintiffs and one doctor. Plaintiffs’ counsel anticipates her case will be concluded by the afternoon on Tuesday, November 16. 16. The cases are relatively uncomplicated and the trials relatively short. In the event two trials must take place, doing so would not be unduly burdensome for Defendant. 17. Counsel for Plaintiffs understands how trying two separate cases on the same collision is not ideal, but in this situation, the prejudice to Defendant is outweighed by unfair prejudice to Ms. Richman. WHEREFORE, Plaintiffs pray for an Order granting their Motion to Bifurcate Claims and Continue the Trial of Plaintiff Katrina Richman Only. DATED: October 11, 2021. Respectfully submitted, WILHITE, ROSE, MCCLURE, SAWAYA & P.C. /s /Laura Browne Laura Browne, Esq. CERTIFICATE OF SERVICE I certify that on October 11, 2021 this MOTION TO BIFURCATE CLAIMS AND CONTINUE THE TRIAL OF PLAINTIFF KATRINA RICHMAN ONLY was served on all parties via CCEF electronic filing or mail to the following: Andrew W. Callahan, Esq. Wick & Trautwein, LLC PO Box 2166 Fort Collins, CO 80522 Attorneys for all Defendant Andrew Stephens, Esq. Fort Collins City Attorney’s Office PO Box 580 Fort Collins, CO 80522 Katrina Richman 2027 Shorebird Drive, Apt 202 Fort Collins, CO 80525 Plaintiff /s/ Kassandra Burival Original Signature on File in Attorney’s Office Kassandra Burival, Litigation Paralegal