United States District Court, D. Colorado
DAVID A. BOVINO P.C., d/b/a Law Offices of Bovino & Associates, a Colorado corporation, and DAVID A. BOVINO, an individual, Plaintiffs,
PATRICIA A. MACMILLAN, an individual, and CHRISTINA MACMILLAN, an individual, Defendants
For David A. Bovino, P.C., a Colorado Corporation doing business as Law Offices of Bovino & Associates, David A. Bovino, an Individual, Plaintiffs: Christopher Lee Gadoury, David Howard Berg, Maria-Vittoria Carminati, Berg & Androphy Houston, TX; Gordon W. Netzorg, Peter George Koclanes, Theodore A. B. McCombs, Sherman & Howard, L.L.C.-Denver, Denver, CO.
Patricia A. MacMillan, Defendant, Pro se, Pompano, FL.
For Christina MacMillan, an individual, Defendant: Leslie Ann Eaton, Roger P. Thomasch, Ballard Spahr, LLP-Denver, Denver, CO.
For David L Lenyo, Interested Party: Avery Ann Simpson, David L. Lenyo, Garfield & Hecht, PC-Aspen, Aspen, CO.
PHILIP A. BRIMMER, United States District Judge.
This matter is before the Court on Plaintiffs' Motion for Summary Judgment [Docket No. 45] filed by plaintiffs David A. Bovino P.C. d/b/a Law Officers of Bovino & Associates and David A. Bovino. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1367.
John H. MacMillan III was a descendant of the founder of Cargill Inc., a United States-based food and manufacturing company. Docket No. 23 at 3, ¶ 9. John MacMillan III married Patricia MacMillan and the couple had a son, Andrew Cargill MacMillan (" Mr. MacMillan" ). Id. John MacMillan III and Patricia MacMillan divorced and John MacMillan III died, leaving Mr. MacMillan as a beneficiary of a trust of significant value. Id. at 1, 3, ¶ ¶ 9-10. The trust was administered by UBS Trust Company N.A. (" UBS" ). Id. at 3, ¶ 10. Mr. MacMillan married Christina MacMillan (" Mrs. MacMillan" ) and the couple had a son. Docket No. 23 at 4, ¶ 15.
Beginning in 2008, plaintiff David A. Bovino served as legal counsel to Mr. MacMillan. Docket No. 45-1 at 1, ¶ 5. In 2010 and 2011, Mr. Bovino was retained to assist in the transfer of trust assets from UBS to a different institutional trustee. Docket No. 45 at 3, ¶ 1. Mr. Bovino and Mr. MacMillan also discussed " concerns over continuing [his] marriage" to Mrs. MacMillan. Docket No. 45-3 at 1. Mr. Bovino and Mr. MacMillan often communicated by email, through Mr. MacMillan's AOL account and Mr. Bovino's email account with the domain name bovinolaw.com.
Docket No. 45 at 6, ¶ 14; see, e.g., Docket No. 45-4.
For the purposes of their motion, plaintiffs admit that Mrs. MacMillan had permission to access Mr. MacMillan's account. Docket No. 45 at 10 n.2. However, the scope of that permission is in dispute. Mrs. MacMillan testified that Mr. MacMillan gave her access to his email by entering his email password into her computer. Docket No. 45-2 at 9, p. 19:5-7; id. 15, p. 27:14-19. She testified that " Andrew knew I could see his e-mails too. He was fully aware of that." Id. at 4, p. 12:3-4. However, Mrs. MacMillan also testified that Mr. MacMillan did not give her permission to forward emails to Patricia MacMillan. Docket No. 45 at 4, ¶ 8.
Mrs. MacMillan admits accessing Mr. MacMillan's AOL account and viewing an email from Mr. Bovino dated January 7, 2011, in which Mr. Bovino discusses " concerns over continuing your marriage to your wife, Tina." Docket No. 45 at 4, ¶ 3. Mrs. MacMillan also admits accessing Mr. MacMillan's AOL account and viewing an email from Mr. Bovino dated February 2, 2011, in which Mr. Bovino discusses transferring trust assets from UBS to a different institutional trustee. Id. at 4, ¶ 4. At various times, Mrs. MacMillan would access Mr. MacMillan's AOL account and forward emails and attached documents from Mr. Bovino to her personal AOL account, Patricia MacMillan, and UBS representatives. Id. at 5-6, ¶ ¶ 10, 13, 16. Mrs. MacMillan admits to sometimes deleting emails from Mr. MacMillan's email account. Docket No. 45-2 at 15-16, pp. 27:20-28:6.
On or about February 24, 2011, Mrs. MacMillan created the domain name bovinolaw.net. Docket No. 45 at 6, ¶ 19. Mrs. MacMillan sent an email to Mr. MacMillan from a bovinolaw.net email address pretending to be Mr. Bovino and stating that Mr. Bovino had changed his email address to bovinolaw.net. Id. at 6, ¶ 21. After creating the bovinolaw.net email address, Mrs. MacMillan set up Mr. MacMillan's email account to automatically route actual emails sent by Mr. Bovino from bovinolaw.com into a spam folder. Id. at 6, ¶ 22. Mrs. MacMillan would review emails diverted to Mr. MacMillan's spam folder, copy their contents, and at least once re-sent an email to Mr. MacMillan from the bovinolaw.net address. Id. at 7, ¶ 23. In one instance, Mrs. MacMillan ...