Wolhowe v. Produced Water Solutions et al

MOTION for Summary Judgment

D. Colo.January 19, 2017

IN THE UNITED STATED DISTRICT COURT FOR THE DISTRICT OF COLORADO MARK WOLHOWE, ) Plaintiff ) ) v. ) ) Civil Action No. 16-cv-00888 JLK-KLM PRODUCED WATER SOLUTION, INC.; ) GEORGE KAST. ) Defendants ) MOTION FOR SUMMARY JUDGMENT Defendant George Kast (“Mr. Kast”) by and through his attorney, Thomas F. Quinn of Thomas F. Quinn, P.C. moves the court for an Order dismissing this action with prejudice, pursuant to F.R.C.P. 56. In support of his Motion, Mr. Kast states as follows: 1. Undersigned counsel for Mr. Kast has consulted with counsel for Plaitniff, discussed the relief requested in this Motion and the basis for the requested relief with counsel for Plaintiff, via telephone on January 12, 2017. Notwithstanding such consultation, no resolution of the issues raised by this Motion was reached, or appears likely. 2. The factual basis for this Motion is Plaintiff’s Complaint, the allegations of which constitute admissions of fact by Plaintiff. 3. Plaintiff’s claims against Mr. Kast are barrred under the applicable statute of limitations, as is more fully set forth in the Mr. Kast’s Memorandum in Support of Motion for Summary Judgement filed contemporaneously with this Motion and incorporated herein by this reference. Wherefore, Defendant George Kast requests the Court to enter an Order dismissing Case 1:16-cv-00888-JLK-KLM Document 26 Filed 01/19/17 USDC Colorado Page 1 of 2 Plaintiff’s Complaint, as against Defendant George Kast, with prejudice, and awarding Mr. Kast his costs of this action. January 19, 2017 (Duly signed original on file at the offices of Thomas F. Quinn, P.C.) /s/ Thomas F. Quinn By: ______________________________________ Thomas F. Quinn Attorney for Defendant George Kast 2 Case 1:16-cv-00888-JLK-KLM Document 26 Filed 01/19/17 USDC Colorado Page 2 of 2 IN THE UNITED STATED DISTRICT COURT FOR THE DISTRICT OF COLORADO MARK WOLHOWE, ) Plaintiff ) ) v. ) ) Civil Action No. 16-cv-00888 JLK-KLM PRODUCED WATER SOLUTION, INC.; ) GEORGE KAST. ) Defendants ) MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT This Memorandum is submitted by Defendant George Kast (“Mr. Kast”) by and through his attorney, Thomas F. Quinn of Thomas F. Quinn, P.C. in support of Mr. Kast’s Motion for Summary Judgment dismissing the two claims asserted against him in this action with prejudice, pursuant to F.R.C.P. 56. In support of his Motion, Mr. Kast states as follows: STATEMENT OF UNDISPUTED FACTS The factual basis for this Motion is established by pleadings filed by Plaintiff in this action, the allegations of which constitute admissions of fact by Plaintiff, as follows: 1. Plaintiff’s Complaint and Jury Demand (hereinafter, the “Complaint”) was filed with this Court on April 20, 2016 and appears in the Docket of this Court as Document 1. 2. The Complaint includes two claims for relief against Mr. Kast: Count 2, a claim for fraud (Complaint, p. 6, ¶¶ 40-45); and Count 3, a claim for negligent misrepresentation (Complaint, p. 7, ¶¶ 46-52). 3. Both of Plaintiff’s claims are based upon Plaintiff’s allegation1 that during a 1 Mr. Kast denies making the alleged representation, but it is not necessary for this Court to determine that factual dispute, because, as more fully set forth below, Plaintiff’s claims against Mr. Kast are barred by the applicable Colorado Statute of Limitations. Mr. Kast also disputes other allegations of Case 1:16-cv-00888-JLK-KLM Document 26-1 Filed 01/19/17 USDC Colorado Page 1 of 4 conference call on March 3, 2013 (Complaint, p. 2, ¶ 9), Mr. Kast gave an oral representation to Plaintiff that Mr. Kast would personally guarantee a loan from Plaintiff to Defendant Produced Water Solutions, Inc, (Complaint, p. 3, ¶ 13). These allegations are incorporated by reference in Count 2 of Plaintiff’s Complaint at p.6,¶¶ 40 and 42 and in Count 3 at p. 7, ¶¶ 46 and 48. The Complaint does not contain any allegation that the alleged guarantee was reduced to writing, or confirmed in any way following the alleged conference call. 4. On March 6, 2013, Plaintiff2 and Defendant Produced Water Solutions entered into a Promissory Note (the “Promissory Note”), a copy of which is attached to the Complaint as Exhibit 1, which Promissory Note memorialized the terms of Plaintiff’s loan to Defendant Produced Water Solutions, Inc. Complaint, ¶ 15. 5. The Promissory Note does not reference the guarantee that Plaintiff alleges Mr. Kast agreed to provide, and Mr. Kast was not a signatory to the Promissory Note in any capacity. Complaint, ¶ 15, Exhibit 1. 6. The loan evidenced by the Promissory Note was fully funded by Plaintiff on March 14, 2013. Complaint, ¶ 20. THE APPLICABLE LAW A. SUMMARY JUDGEMENT IS APPROPRIATE WHERE THERE IS NO GENUINE DISPUTE AS TO THE EXISTENCE OF A FACT NECESSARY TO DISPOSITION OF THE CASE. Summary judgment is appropriate where the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.Rule Civ.Proc. 56(c). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. Regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the the Complaint, but none of his differences with the Plaintiff’s allegations affect the argument made in this Memorandum. 2 Both the Maker (Produced Water Solutions, Inc.,) and the Holder (Plaintiff), signed the Promissory Note. Complaint, Exhibit 1. 2 Case 1:16-cv-00888-JLK-KLM Document 26-1 Filed 01/19/17 USDC Colorado Page 2 of 4 district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. Celotex Corp.v. Catrett, 477 U.S. 317, at 323, 106 S.Ct. 2548, 91 L.Ed.2d 265, 54 U.S.L.W. 4775 (1986). Hence, where, as here, the requisite facts for dismissal are established by Plaintiff’s judicial admissions, entry of summary judgment without the necessity for supporting affidavits is appropriate. B. THE APPLICABLE COLORADO STATUTE OF LIMITATIONS BARR PLAINTIFF’S CLAIMS. The Colorado Statute of Limitation applicable to claims for fraud and misrepresentation is three years from the accrual of the cause of action. C. R. S. § 13-80- 101 provides: (1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within three years after the cause of action accrues, and not thereafter: * * * (c) All actions for fraud, misrepresentation, concealment, or deceit except those in section 13_80_102(1)(j) or section 13_80_103(1)(g). C.R.S. 13-80-102(1)(j) applies a two-year statue of limitation to certain frauds related to automobile sales, and hence, does not provide relief to the three year statute applicable here. C.R.S. 13-80-103(1)(g) applies a one- year statute of limitation to claims arising under a now-repealed section of the Colorado Revised Statutes, and hence, does not provide relief to the three year statute applicable here. APPLICATION OF THE LAW TO THE FACTS Plaintiff’s Complaint against Mr. Kast rests upon the allegation that on March 3, 2013, Mr. Kast made an oral representation that he would guarantee the Promissory Note to be issued by Defendant Produced Water Solutions, Inc. Complaint, ¶ ¶ 42 and 48. Plaintiff asserts claims for relief against Mr. Kast for fraud and for negligent misrepresentation, both of which claims are subject to the three year statute of limitations provided in C. R. S. § 13-80-101 (1) (c). The loan was documented on March 6, 2013, 3 Case 1:16-cv-00888-JLK-KLM Document 26-1 Filed 01/19/17 USDC Colorado Page 3 of 4 and did not include a guarantee from Mr. Kast. Plaintiff countersigned the Promissory Note before funding the loan. Hence, Plaintiff became aware, or should have been aware, of the grounds for his claims against Mr. Kast by no later than March 6, 2013. The loan was fully funded by March 14, 2013. The Complaint was filed on April 20, 2016, more than three years following the occurrence of the facts underlying Plaintiff’s claims for relief against Mr. Kast, and more than three years following the date Plaintiff discovered or should have discovered the falsity of Mr. Kast’s alleged promise to guarantee the Promissory Note. Hence, Plaintiff’s Complaint is not timely filed, irrespective of whether the limitation period is measured from the date of accrual of Plaintiff’s claims or the date of Plaintiff’s discovery of the claims. Under those facts, Plaintiff’s Complaint against Defendant George Kast is not timely filed and should be dismissed. Robert L Kroenlein Trust v. Kirchhefer, et al., 764 F. 3d 1268 (10th Cir. 2014). CONCLUSION AND REQUEST FOR RELIEF In light of the forgoing facts and law, no material fact is at issue. Plaintiff’s claims against Defendant George Kast were brought more than three years following the accrual of Plaintiff’s claims and more than three years following the date upon which Plaintiff should have discovered the claim. Accordingly, judgment for dismissal of those claims is appropriate under F. R. C. P., Rule 56, and should be granted in favor of Mr. Kast and against Plaintiff. January 19, 2017. (Duly signed original on file at the offices of Thomas F. Quinn, P.C.) /s/ Thomas F. Quinn By: ______________________________________ Thomas F. Quinn Attorney for Defendant George Kast 4 Case 1:16-cv-00888-JLK-KLM Document 26-1 Filed 01/19/17 USDC Colorado Page 4 of 4