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Zueger v. Goss

Court of Appeals of Colorado, Second Division

May 8, 2014

Paul J. Zueger; American Design Limited, a Colorado corporation; Red Lodge Publishers, Inc., a Colorado corporation; and Singleton-Biss Museum of Fine Art, Inc., a New Mexico non-profit corporation, Plaintiffs-Appellees and Cross-Appellants,
v.
Lou Lou Goss, individually and d/b/a the Estate of Earl
v.
Biss, Jr., Defendant-Appellant and Cross-Appellee

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City and County of Denver District Court No. 10CV5449. Honorable Herbert L. Stern, III, Judge.

G.W. Merrick & Associates, LLC, Glenn W. Merrick, Joseph T. Bernstein, Greenwood Village, Colorado, for Plaintiffs-Appellees and Cross-Appellants.

John H. Case, Aspen, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by JUDGE RICHMAN. Casebolt and Ashby, JJ., concur.

OPINION

RICHMAN, JUDGE

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[¶1] Defendant, Lou Lou Goss, individually and d/b/a The Estate of Earl V. Biss, Jr., appeals the judgment entered on jury verdicts in favor of plaintiffs, Paul J. Zueger, American Design Limited, Red Lodge Publishers, Inc., and Singleton-Biss Museum of Fine Art, Inc., on their claims for intentional interference with prospective business advantage and defamation. Plaintiffs cross-appeal the district court's dismissal of their claims for outrageous conduct and civil extortion. We affirm in part, reverse in part, and remand for further proceedings.

I. Background

[¶2] Goss is the widow and personal representative of the estate of Earl Biss, a renowned Native American artist who died in 1998. Plaintiff Zueger is an art dealer, and the other plaintiffs are entities through which he purchases, sells, publishes, promotes, preserves, and exhibits artwork by Biss and other artists. Goss and Zueger had a dispute stemming from Goss's contention that plaintiffs were making and selling unauthorized reproductions of Biss's artwork, prompting Goss to make disparaging statements about plaintiffs on the Internet. Plaintiffs filed suit against Goss, asserting several claims for relief, only two of which went to the jury -- intentional interference with prospective business advantage and defamation. The jury found in plaintiffs' favor on both claims, awarding $86,601 in damages on the interference claim and $10,000 in damages on the defamation claim. At the close of evidence, the trial court dismissed two other claims asserted by plaintiffs -- outrageous conduct and civil extortion.

II. Issues on Appeal

[¶3] Goss argues that the trial court erred by (1) entering as a discovery sanction an order precluding Biss's former attorney from testifying; (2) concluding that one of Goss's statements about plaintiffs was defamatory per se and so instructing the jury; (3) concluding that plaintiffs were not public figures and that Goss's online statements did not relate to a matter of public concern; and (4) awarding damages that were uncertain.

[¶4] Plaintiffs argue on cross-appeal that the trial court erred by dismissing their claims for outrageous conduct and extortion.

A. Discovery Sanction

[¶5] Goss concedes that her trial counsel failed to submit her list of trial witnesses by the C.R.C.P. 16(f)(2)(B) deadline. A week after the missed deadline, plaintiffs moved to bar Goss from calling any undisclosed witnesses at trial. A week later, Goss filed her witness list, which included Biss's former attorney.

[¶6] The court postponed ruling on plaintiffs' motion until the fourth day of trial, when it prohibited only the former attorney from testifying. In support of its ruling, the court determined that the delay was not harmless as to plaintiffs, who stated they were not prepared to respond to the former attorney's testimony, and that Goss had a history of failing to comply with procedural rules. It also noted that the testimony raised potential attorney-client privilege waiver issues, that relevant documents from the former attorney's file may not have been disclosed to plaintiffs, and that to the extent either side would suffer prejudice, it should fall on Goss.

[¶7] Goss contends that the court erred by precluding the former attorney from testifying. We are not persuaded.

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[¶8] We review the trial court's imposition of a discovery sanction for an abuse of discretion. See Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 702 (Colo. 2009). " A trial court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair." Id.

[¶9] The purpose of the disclosure requirements of C.R.C.P. 16 " is to provide parties with adequate time to prepare by obtaining relevant evidence to prevent trial by ambush and surprise." Keith v. Valdez, 934 P.2d 897, 899 (Colo. App. 1997). Moreover, " under C.R.C.P. 37(c), a trial court has a duty to sanction a party for failure to comply with certain discovery deadlines by precluding evidence or witnesses, unless the party's failure to comply is either substantially justified or harmless." Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 975 (Colo. 1999) (emphasis in original); see also City of Aurora in Interest of Util. Enter. v. Colo. State Eng'r, 105 P.3d 595, 610 (Colo. 2005) (" A party offering late-disclosed evidence bears the burden of showing that the failure to disclose was harmless." ).

[¶10] The following factors may be relevant to determining whether a late disclosure was substantially ...


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