HomeMy WebLinkAbout2016CV31096 - CITY OF FORT COLLINS, A COLORADO MUNICIPAL CORPORATION; AND POUDRE FIRE AUTHORITY, A COLORADO PUBLIC ENTITY V. KEITH GILMARTIN - 067 - PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FOR CLARIFICATION2667827.1
DISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 La Porte Avenue
Suite 100
Fort Collins, CO 80521
970-494-3500
▲ COURT USE ONLY ▲
Plaintiffs:
CITY OF FORT COLLINS, a Colorado municipal
corporation; and POUDRE FIRE AUTHORITY, a Colorado
public entity,
v.
Defendant:
KEITH GILMARTIN, an individual.
Attorneys for Plaintiffs:
Kelley B. Duke, #35168
Benjamin J. Larson, #42540
IRELAND STAPLETON PRYOR & PASCOE, PC
717 17th
St. Suite 2800
Denver, Colorado 80202
Telephone: (303) 623-2700
Fax No.: (303) 623-2062
E-mail: kduke@irelandstapleton.com
blarson@irelandstapleton.com
SPECIAL COUNSEL FOR THE CITY OF FORT
COLLINS; ATTORNEYS FOR POUDRE FIRE
AUTHORITY
Case No.: 2016CV31096
Ctrm: 3C
PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR
CLARIFICATION
Plaintiffs the City of Fort Collins (the "City") and the Poudre Fire Authority (the
"Authority", collectively with the City, "Plaintiffs"), by and through their undersigned counsel,
IRELAND STAPLETON PRYOR & PASCOE, PC, hereby submit this Response in Opposition to
DATE FILED: August 7, 2017 5:05 PM
FILING ID: EB4001DC8FD77
CASE NUMBER: 2016CV31096
2
2667827.1
Defendant Keith Gilmartin’s (“Gilmartin”) July 25, 2017 “Motion for Clarification” and state as
follows in support thereof:
PROCEDURAL DEFICIENCIES
Before addressing the substance of Gilmartin’s Motion for Clarification, Plaintiffs
initially note that Gilmartin’s motion was filed in violation of both C.R.C.P. 121 § 1-15(8) and
C.R.C.P. 5(a). Gilmartin did not confer with Plaintiffs before filing his motion. Although the
motion includes a certificate of service, which claims that service of the motion was effectuated
by U.S. Mail and email on Plaintiffs’ attorneys, Plaintiffs have not been served with the motion
as of the filing of this response.1
Either of these technical deficiencies provides an independent
basis for denying Gilmartin’s Motion for Clarification without addressing any of the issues
raised therein.
RESPONSE IN OPPOSITION
It is difficult to determine what relief Gilmartin is asking for in his Motion for
Clarification, but he appears to request this Court to issue an advisory ruling as to whether a
preliminary finding from a separate action involving different facts and other real property might
be carried forward into this action.
In the prior action now referenced by Gilmartin, the Court ruled in a preliminary order
that Mr. Gilmartin prevented “access” to Colorado State University’s (“CSU”) real property by
erecting “t-posts” and yellow caution tape surrounding CSU’s driveway. See generally Ex. 1 to
Motion for Clarification. The Court ruled that the yellow caution tape constituted a knowing
1 Plaintiffs only learned of Gilmartin’s Motion for Clarification by reviewing the docket as a
matter of course, which it has now begun to do regularly in light of Gilmartin’s repeated failure
to comply with C.R.C.P. 5 throughout this action.
3
2667827.1
violation of the preliminary injunction in that case and found Gilmartin in contempt. The Court
also expanded its original preliminary injunction to require Gilmartin to remove the t-posts
because they prevented larger trucks from lawfully accessing the CSU property.
Although this preliminary ruling confirms the general notion that t-posts, caution tape,
and other unauthorized impediments prevent lawful “access” to a property, this non-final, interim
order on different facts is not applicable to this case. Cf. Pomeroy v. Waitkus, 517 P.2d 396, 399
(Colo. 1973) (explaining that “collateral estoppel” or “issue preclusion” only applies to “the final
decision of a court on an issue actually litigated and determined”). The Plaintiffs here were not
parties to this prior suit, and the easement at issue in this case relates to different real property
than the prior access dispute between Gilmartin and CSU.
CONCLUSION
The present action should be resolved solely on the facts and issues before the Court.
Gilmartin’s Motion for Clarification should be denied.
Respectfully submitted this 7th day of August, 2017.
IRELAND STAPLETON PRYOR & PASCOE, PC
Signed original on file at the office of
Ireland Stapleton Pryor & Pascoe, PC
/s/ Kelley B. Duke
Kelley B. Duke, #35168
Benjamin J. Larson, #42540
Special Counsel for City of Fort Collins and
Attorneys for Poudre Fire Authority
4
2667827.1
CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of August, 2017, a true and correct copy of the
foregoing PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION
FOR CLARIFICATION was served via U.S. Postal Service, first class mail, postage prepaid
and addressed as follows:
Keith Gilmartin
3316 W. Vine Drive
Fort Collins, CO 80521
And served via email to:
keithgil2@gmail.com
SIGNED ORIGINAL ON FILE AT THE OFFICE OF
IRELAND STAPLETON PRYOR & PASCOE, PC
/s/ Barbara Biondolillo
Barbara Biondolillo