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Silverman v. Greenfield

United States District Court, D. Colorado

January 31, 2019

DRORIT SILVERMAN, a/k/a Drorit DeAngelo, an individual, Plaintiff,
DALLAS D. GREENFIELD, HOUTCHENS, GREENFIELD & SEDLIK, LLC, a Colorado limited liability company, Defendants.


          William J. Martinez United States District Judge.

         Before the Court are Defendants' Omnibus Motion in Limine (ECF No. 99) and Plaintiff's Omnibus Motion in Limine (ECF No. 100). As before, the Court will refer to Plaintiff as “DeAngelo, ” and to Defendants, collectively, as “Greenfield.” For the reasons explained below, the parties' various objections are sustained in part, overruled without prejudice in part, and otherwise overruled. The Court's disposition depends heavily on an understanding of the Court's order from earlier today granting in part and denying in part Greenfield's summary judgment motion. (“Summary Judgment Order, ” ECF No. 111.) Familiarity with the Summary Judgment Order is presumed.

         I. GREENFIELD'S MOTION (ECF No. 99)

         A. “Hindsight Judicial Statements Regarding Defendants' Conduct”

          Greenfield first moves to exclude statements from the Boulder County District Court and from the Colorado Court of Appeals that supposedly attribute negligence to Greenfield for not moving to correct Magistrate Koppenhofer's payment terms earlier. (ECF No. 99 at 1-3.) Greenfield argues that the statements are impermissible hindsight analysis and otherwise should be excluded as unduly prejudicial under Federal Rule of Evidence 403. (Id.)

         The Court grants Greenfield's motion in this regard, but for different reasons than Greenfield argues. The Summary Judgment Order holds that there is no theory by which Greenfield may be liable for moving too late to correct Magistrate Koppenhofer's error because the appropriate relief (Rule 60(a)) has no time limit and when a Rule 60(a) motion eventually was filed by Catlin, it was erroneously denied through no fault of Greenfield's. (ECF No. 111 at 32-34.) In this light, detailed evidence regarding what the Boulder County District Court and the Colorado Court of Appeal said is now irrelevant, and presenting it would otherwise be “wasting time.” Fed.R.Evid. 402, 403. The jury is entitled to understand the basic timeline of events after Catlin's substitution, including that she filed motions for relief, that they were denied, that the Colorado Court of Appeals eventually ruled that those denials were in error, and that the case settled on remand. However, the Court sustains Greenfield's objection to evidence about the various courts' reasoning.

         B. Evidence of Negligence Unsupported by Expert Testimony

         Among the witnesses who may testify at trial are Catlin (DeAngelo's successor counsel) and Robert Lanham (Silverman's divorce counsel). Neither has been retained as a standard-of-care expert, but Greenfield fears that these witnesses will make critical statements toward him, as if providing expert testimony about the standard of care. (ECF No. 99 at 3-4.)

         As to Lanham, Greenfield's fear arises from a statement he made in appellate briefing criticizing Greenfield for failing to seek amended final orders in a timely manner. (Id. at 3.) As to that statement, the Court sustains Greenfield's objection, but for the reason already discussed above-untimeliness is not a viable malpractice theory in this case. To the extent Lanham offers testimony about relevant subjects that shades into expert testimony about the standard of care, the Court will address the matter as it arises in trial.

         As to Catlin, the Summary Judgment Order now limits the relevant scope of her testimony and Greenfield's objection is sustained to that extent. Catlin may testify about the fact that she moved for relief and the fees she incurred in litigating the Rule 60(a) motion. (See ECF No. 111 at 30-31.) She may also testify generically about the denial of her motions and her success on appeal. And she may testify about the settlement on remand.

         As to Catlin's deposition statement that Greenfield believes to be illustrative of what should be excluded-“I surmised that [Greenfield] made more than one mistake, that he made mistakes over a long period of time”-the Court finds the testimony questionable but not obviously inadmissible. It simply depends on context, such as whether her state of mind is relevant to understanding her actions. The Court cannot make a ruling at this point and so the objection is overruled without prejudice. Nonetheless, the Court emphasizes that it will not permit expert opinion testimony from a witness not properly disclosed under Rule 26(a)(2).

         C. Failing to Collateralize the Property Division and Maintenance Awards

         Greenfield seeks to exclude evidence or argument about a supposed breach of the standard of care by not collateralizing the equalization payment or the maintenance award. (ECF No. 99 at 4-5.) This appears to be “a veiled motion for summary judgment” which the Court may “den[y] out of hand.” WJM Revised Practice Standard III.F.1. Nonetheless, Greenfield fairly raises the question that this argument is irrelevant (because Silverman never defaulted and so collateralization would not have mattered) and also moot (given that the settlement ultimately achieved what Greenfield did not). DeAngelo does not respond to the first argument. As to mootness, however, her only response is that she claims the attorneys' fees she incurred over the three years it took to achieve collateralization as against Silverman's estate. But, as the Court has already explained, only fees incurred with respect to the Rule 60(a) motion are potentially recoverable in that effort. Thus, evidence or argument about the standard of care with respect to collateralization is irrelevant and Greenfield's objection is sustained.

         II. SILVERMAN'S ...

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