HomeMy WebLinkAbout2018CV172 - STACY LYNNE V. THE CITY OF FORT COLLINS; DARIN ATTEBERRY; CARRIE DAGGETT; CHRISTOPHER VAN HALL - 036A - EXHIBIT 1DISTRICT COURT, LARIMER COUNTY, COLOR -ADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 498-6100
Plaintiff. STACY LYNNE
V.
Defendants: NOAH BEALS, Senior Planner, City of
Fort Collins, in his individual and official capacity, and
JEREMY CALL, Senior Associates — Logan Simpson COURT USE ONLY
Design, Contractor for the City of Fort Collins, in his
individual and official capacity
Kimberly B. Schutt, #25947 Case Number: 2018 CV 220
WICK & TRAUTWEIN, LLC
P.O. Box 2166
Fort Collins, CO 80522
Phone: (970) 482-4011 Courtroom: 3C
Email: kschutt@wicklaw.com
DEFENDANT BEALS' RESPONSE TO
PLAINTIFF'S CASE STATUS REGARDING SERVICE
COMES NOW, the Defendant, Noah Beals, by and through his counsel, Wick &
Trautwein, LLC, and respectfully submits the following response to Plaintiffs "Case Status
Regarding Service," for purposes of clarifying certain misrepresentations made by the Plaintiff.
In support hereof, Defendant Beals states as follows:
1. On January 14, 2019, the Plaintiff filed a "Case Status Regarding Service," for
purposes of responding to the Court's order regarding service of process on Logan Simpson
Design. Plaintiffs status report correctly identifies defendant Jeremy Call as an employee of
Logan Simpson Design, an independent contractor which has provided consulting services for
the City of Fort Collins.
2. On page 2 of Plaintiffs status report, she goes on to refer to alleged
representations made by Carrie Daggett, the City Attorney for Fort Collins, in another lawsuit
filed by the Plaintiff against the City of Fort Collins in Larimer County District Court Case No.
2018 CV 172. Specifically, Plaintiff states Ms. Daggett represented in that action that "Mr. Call
was covered under the umbrella of the city attorney's office." Plaintiff states that she thus relied
upon those alleged representations in naming both Jeremy Call and Noah Beals as defendants in
their individual and official capacities in this suit, and suggests she expected Mr. Call would be
represented by the City's attorney in this case.
3. However, Plaintiff has misstated, and perhaps misunderstands, the position
previously taken by the City in Latimer County District Court Case No. 2018 CV 172. For
purposes of clarification and for the record here, that suit was brought by the Plaintiff against the
City under the Colorado Open Records Act ("CORA"), challenging the City's withholding of
certain records from the Plaintiff's CORA request on the grounds that they were protected
attorney -client privileged communications. Those communications related to the City's
development of certain revisions to the municipal sign code, and Plaintiff subpoenaed Mr. Call to
testify at the hearing in that matter.
4. The City's position at the hearing was that, to the extent Mr. Call — in his capacity
as a consultant for Logan Simpson Design — participated in discussions with City staff and
outside legal counsel for purposes of developing revisions to the City's sign code, the attorney -
client privilege extended to those communications, pursuant to Alliance Const. Solutions, Inc. v.
Dept. of Corrections, 54 P.3d 861 (Colo. 2002)(communications between attorney and client's
independent contractor were protected by attorney -client privilege, where contractor had
significant relationship to matters discussed with counsel and had input that was necessary to
gain and provide legal assistance to client). Following that hearing, Judge Blanco entered an
order dated October 11, 2018, in which she applied the Alliance test to conclude that such
communications involving the City's outside counsel and Mr. Call were indeed subject to the
attorney -client privilege, such that they were properly withheld by the City in response to
Plaintiffs CORA request. A copy of that order is attached hereto as Exhibit 1, for the Court's
information and for the record in this case.
5. Therefore, Plaintiff has misstated and apparently misunderstands the position of
the City in that other suit. The issue of whether Mr. Call's communications with the City's
outside legal counsel and City staff were subject to the attorney -client privilege is very different
from the issue of whether the City has an obligation to indemnify and defend Mr. Call in this
lawsuit. To the extent the Plaintiff has suggested the City Attorney made any representations
regarding the latter issue, she is incorrect.
6. Plaintiff has further indicated that she will take appropriate steps to correct the
manner in which the defendants are listed in both their individual and official capacities, if the
Court directs her to do so. However, for the reasons stated in Mr. Beal's pending motion to
dismiss, this Court lacks subject matter jurisdiction over the claims against him pursuant to the
pertinent provisions of the Colorado Governmental Immunity Act. Mr. Call has likewise filed a
motion to dismiss the claims against him. Dismissal of the Complaint against the defendants
would thus render moot any issue of their listing in the caption.
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RESPECTFULLY SUBMITTED this 24�h day of January, 2019.
WICK & TRAUTWEIN, LLC
By: s/Kimberly B. Schutt
Kimberly B. Schutt, #25947
Attorneys for Defendant Beals
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANT BEALS' RESPONSE TO PLAINTIFF'S CASE STATUS REGARDING
SERVICE was filed via the Colorado Courts E-Filing System and served this 241h day of
January, 2019, on the following:
Stacy Lynne
305 W. Magnolia Street #282
Fort Collins, CO 80521
A courtesy copy was also emailed to Ms. Lynne at stacylynne@comcast. net
Theresa Corrada
BENEZRA & CULVER, P.C.
633 171h Street, Suite 1450
Denver, CO 80202
s/ Jody L. Minch
[This document was served electronically pursuant to C.R.C.P. 121 §1-26. The original
pleading signed by defense counsel is on file at the offices of Wick & Trautwein, LLCJ
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