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DATE FILED: June 2, 2023 2:36 PM
DISTRICT COURT, ADAMS COUNTY, COLORADO FILING ID: EFF30320B1631
1100 Judicial Center Drive CASE NUMBER: 2021CV31338
Brighton, Colorado 80601
(303) 659-1161 ▲ COURT USE ONLY ▲
Plaintiffs: MICHELLE NORTON and BRANDON
Case No. 2021CV31338
THOMPSON
v. Division C
Defendants: JEFFREY CLAY RUEBEL, ESQ. and
RUEBEL & QUILLEN, LLC, a Colorado limited liability
company engaged in the practice of law.
Attorneys for Defendants:
Michael T. McConnell, Atty. Reg. No. 10600
Kellsey A. Hansen, Atty. Reg. No. 55175
McConnell Van Pelt, LLC
4700 South Syracuse Street, Suite 200
Denver, CO 80237
(303) 480-0400
mmcconnell@mvp-legal.com
khansen@mvp-legal.com
RESPONSE TO PLAINTIFFS’ AMENDED MOTION TO RECONSIDER THE
COURT’S APRIL 29, 2023 ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT ON CAUSATION
Defendants Jeffrey Clay Ruebel, Esq. and Ruebel & Quillen, LLC, through their
attorneys, McConnell Van Pelt, LLC, hereby submit this Response to Plaintiff’s Amended
Motion for Reconsideration of the Court’s April 29, 2023 Order granting Defendants’
Motion for Summary Judgment on Causation. In support thereof, Defendants state as
follows:
I. INTRODUCTION
This case arises out of a series of transactions in which Plaintiffs, Michelle Norton
and Brandon Thompson, purchased stock in One Stop Construction and Landscapes,
Inc. (“One Stop”) and became officers, shareholders, and directors of the company. A
year after Plaintiffs’ stock purchase, in February 2018, One Stop obtained a $2.5 million
loan, personally guaranteed by Plaintiffs. One Stop, while under Plaintiffs’ control,
ultimately defaulted on this $2.5 million loan in July of 2019. It was this default that
resulted in Plaintiffs’ inability to recover the full amount of their investment. On November
30, 2021, Plaintiffs brought this legal malpractice action against Defendants, Jeffrey
Ruebel and Ruebel & Quillen, LLC, asserting claims for legal malpractice based on
negligence and breach of fiduciary duty. Plaintiffs allege One Stop’s attorney, Jeffrey
Ruebel, misrepresented material facts to Plaintiffs at the time of their stock purchase,
inducing them to invest in One Stop. Plaintiffs assert that, had Ruebel not made these
representations, they would not have lost their investment. However, Plaintiffs have never
connected One Stop’s default (i.e., the event causing their loss of investment) to the
alleged misrepresentations made by Ruebel over two years earlier. In other words,
Plaintiffs’ theory is entirely speculative and fails to connect the links in Plaintiffs’ chain of
causation.
Plaintffs’ failure to establish a triable issue of causation was the basis for
Defendants’ March 1, 2023 Motion for Summary Judgment on Causation (the “Summary
Judgment Motion”). That motion was granted on April 29, 2023 in a detailed, 23-page
order explaining the reasons for the Court’s decision (the “Summary Judgment Order”).
On May 15, 2023, Plaintiffs filed their Amended Motion to Reconsider the Court’s
April 29, 2023 Order Re: Defendants’ Motion for Summary Judgment on Causation (the
“Motion”). Therein, Plaintiffs seek reversal of the Court’s Summary Judgment Order on
the basis of a manifest error of law. The Court’s Summary Judgment Order was correct,
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well-reasoned, and fair. Plaintiffs’ Motion should be denied.
II. LEGAL STANDARD
Generally, a trial court has discretion to grant a motion for reconsideration and
reverse a prior ruling in one of four circumstances: (1) its former ruling is no longer sound
because of changed conditions; (2) it needs to correct its previous ruling because of a
legal or factual error; (3) an intervening change in the law has occurred; or (4) manifest
injustice would result from its original ruling. People v. Warren, 55 P.3d 809, 813 (Colo.
App. 2002); People v. Schaufele, 2014 CO 43, concurrence ¶ 46. “Motions for
reconsideration are designed to allow trial courts to correct erroneous rulings or respond
to changes in the law; they are not designed to allow parties to present new legal
arguments for the first time and then appeal their denial to the [appellate court].” Id. at ¶
49. A motion to reconsider a summary judgment order is properly characterized as a
motion for new trial under C.R.C.P. 59(d). Zolman v. Pinnacol Assur., 261 P.3d 490, 501-
2 (Colo. App. 2011); Granite State Ins. Co. v. Carter, 532 P.2d 780, 782 (Colo. App.
1975). Plaintiffs move for reconsideration of the Summary Judgment Order under
C.R.C.P. 59(6)(d), alleging a manifest error in law. Where a party files a motion to
reconsider a summary judgment determination, a court does “not abuse its discretion by
declining to consider new theories asserted for the first time in that motion.” Bowlen v.
Federal Deposit Ins. Corp., 815 P.2d 1013, 1015 (Colo. App. 1991).
III. RESPONSE TO PLAINTIFFS’ MOTION
A. Plaintiffs Failed to Raise a Question of Fact as to Causation.
The Court’s Summary Judgment Order held that Plaintiffs could not overcome
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summary judgment when they failed to raise a question of fact as to the issue of
causation. The Court reasoned:
Plaintiffs spend a considerable amount of time in their response referencing
the disputed facts and asserting arguments relevant to the inaccurate
information provided to them by Defendant Ruebel and considerably little
time addressing the issue in this motion which is causation. In fact, most, if
not all, of the “disputed facts” raised by Plaintiffs bear on the elements of
breach or duty, and have little or nothing to do with causation or, more
specifically, proximate causation and foreseeability. There has been no
attempt to explain, from an analytical framework, how misrepresentations
that led to the purchase of One Stop stock, led to the loss of that investment
in light of the complex financial transactions after the purchase and the
intervening loans and defaults on the loans. Consequently, the Court does
not find the disputed facts raise a genuine issue of fact as to causation.
Summary Judgment Order, p. 18. In their Motion, Plaintiffs, again, did exactly what the
Court criticized in their Summary Judgment Response – used a large part of their Motion
to re-emphasize the “disputed facts” raised in their Response. Plaintiffs’ Motion points to
nine facts cited in the Summary Judgment Order, arguing that these facts, if proven,
“would establish that Mr. Ruebel represented Norton/Thompson as their attorney in the
transaction in question while at the same time representing Jesse Alfaro, the sole owner
of One Stop; that Mr. Ruebel made representations to Norton/Thompson about the
soundness of making the investment; that Mr. Ruebel failed to disclose to
Norton/Thompson negative information he knew about the company at the time he made
those representations to Norton/Thompson, and which contradicted Mr. Ruebel’s
representations to Norton/Thompson; and that Norton/Thompson relied, to their
detriment, on Mr. Ruebel’s representations about the soundness of the company and the
expected rate of return if they invested.” Mot., p. 5. This argument is nothing more than
a mere recitation of the entire theory of Plaintiffs’ case and fails to raise a manifest error
4
of law resulting in injustice.
On the contrary, Plaintiffs’ argument only further supports the Court’s ruling
because Plaintiffs have again failed to explain, “from an analytical framework, how
misrepresentations that led to the purchase of One Stop stock, led to the loss of that
investment in light of the complex financial transactions after the purchase and the
intervening loans and defaults on the loans[,]” – the very issue that led to the Court’s
ruling. In other words, Plaintiffs’ Motion fails to address the alleged manifest error in the
Court’s finding that the chain of causation between Defendants’ alleged misconduct and
the claimed damages is so attenuated that no proximate cause exists as a matter of law.
Boulders at Escalante v. Otten Johnson Robinson Neff & Ragonetti PC, 412 P.3d 751,
762 (Colo. App. 2015). Instead, Plaintiffs simply argue that, because Defendants and the
Court acknowledged certain disputed facts raised in Plaintiffs’ Summary Judgment
Response, the Court therefore erred in granting summary judgment. However, as quoted
above, the Summary Judgment Order specifically held that these disputed facts “bear on
the elements of breach or duty, and have little or nothing to do with causation or, more
specifically, proximate causation and foreseeability.” Summary Judgment Order, p. 18.
Interestingly, Plaintiffs assert that their “theory of the case is that Mr. Ruebel
induced them to make investments to One Stop by misrepresenting to them the
soundness of the company and expected rates of returns if they invested, while
withholding from them material, negative information about One Stop’s financial health[,]”
and argue that the “focus of the causation issues should not be on events after
investment, but what led to their investment in One Stop[.]” Mot., pp. 3, 7. But, throughout
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the summary judgment briefing and the briefing of the current Motion, Plaintiffs have
continuously ignored the fact that this is not a fraudulent misrepresentation or fraudulent
inducement case. More tellingly, Plaintiffs have even attempted to informally convert this
case into one sounded in misrepresentation by raising the elements of misrepresentation
repeatedly in their Summary Judgment Response and the current Motion. But this is not
a misrepresentation case – it is a negligence and breach of fiduciary duty case. That
Plaintiffs failed to produce evidence supporting their claims, as pleaded, cannot serve as
a basis for reversing summary judgment. Plaintiffs’ argument regarding the existence of
disputed facts shows nothing more than a disagreement with the court's decision, which
does not mandate a different result. See, C.R.C.P. 121 § 1-15(11).
B. Expert Testimony is Necessary for Plaintiffs to Prove Causation.
Piggybacking off their flawed assertion that post stock purchase transactions are
irrelevant to the issue of causation, Plaintiffs next argue that the Court erred in holding
that causation must be supported by expert opinions. But the Court did not err in this
regard – Plaintiffs were required to present expert opinion connecting their causation
theory with the alleged damages and failed to do so.
“In Colorado, damages from attorney misconduct can have multiple causes[,]” and
“causation in a legal malpractice action must be proved by expert testimony, unless
causation is within the jury’s common understanding.” Allen v. Martin, 203 P.3d 546, 566
(Colo. App. 2008). In their Motion, Plaintiffs argue that expert testimony as to causation
is not necessary. Plaintiffs did not raise this argument in their Summary Judgment
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Response, nor in any prior pleading.1 Thus, for this reason alone, the Court should
disregard Plaintiffs’ argument. See, Bowlen v. Federal Deposit Ins. Corp., supra.
Plaintiffs assert that expert testimony is not needed because “[t]here is nothing
technically complex about whether (a) Ruebel made material misrepresentations and
omissions to Norton/Thompson, (b) whether given their background and experience,
Norton/Thompson reasonably relied upon such misrepresentations and omissions to
make an invest [sic] in One Stop, (c) whether Norton/Thompson would not have invested
in One Stop had they known the true facts about One Stop, and (d) the amount of money
Norton/Thompson lost by making that investment.” Mot., p. 8. Again, Plaintiffs have not
pled a misrepresentation claim and cannot use the elements of a completely different tort
to now argue that the Summary Judgment Order, finding a lack of causation in this legal
malpractice case, should be reversed. And, even if the Court did analyze Plaintiffs’ claims
under a misrepresentation standard, expert testimony would still be required to establish
causation (e.g., whether the alleged misrepresentations were material, whether Ruebel
and Plaintiffs acted reasonably in relying upon One Stop’s financial records, and whether
Plaintiffs’ damages calculation should include the full $1.4 million they invested in One
Stop or just the initial investment of $775,000). Even assuming, arguendo, that the claims
in this case should be evaluated under different tort standards, Plaintiffs’ causation theory
fails for lack of expert testimony.
1 In fact, the only time Plaintiffs’ Summary Judgment Response even mentions the portion of Allen v. Martin
upon which they now rely is on page 24, where Plaintiffs state: “Colorado jurors understand the concept
[sic] loyalty to the client that is the cornerstone of attorney’s practice. Juries understand the concept of
loyalty not only in romantic relationships and marriage. They understand, for instance, in criminal law that
a lawyer does not represent both the prosecution and defense.” Plaintiffs do not address the issue of
causation here – they address the issue of duty.
7
Plaintiffs have the burden of proving what caused their loss of investment. Their
investment was not “lost” until One Stop defaulted. It is undisputed that, under their
management, One Stop borrowed $2.5 million, did not repay it, defaulted on the loan, and
failed to cure the default. There is no evidence, nor even any allegations, that Ruebel
somehow caused One Stop to either borrow $2.5 million or to default. In fact, it is
undisputed that Ruebel was not involved in obtaining the loan or the subsequent default.
How Plaintiffs would miraculously recoup their investment despite defaulting on a $2.5
million loan is beyond the understanding of ordinary jurors. In addition, it is undisputed
that the financial records of One Stop were unreliable. Given these circumstances, in the
absence of expert testimony, the jury could do nothing but speculate about the existence
of a causal connection between Ruebel’s alleged wrongdoing at the time of the stock
purchase and the loss of Plaintiff’s investment in One Stop.
It is also worth noting that Plaintiffs have, at various times throughout this litigation,
conceded or affirmatively stated that this case is complex, when such assertion benefits
their position.2 To now argue in the current Motion that the issues presented in the case
are so simple as to not require expert testimony belies all of Plaintiffs’ previous pleadings
and briefs arguing the contrary.
2See, e.g., Plaintiffs’ Response In Opposition To Defendants’ Motion To Exclude The Expert Testimony Of
Herrick Lidstone, p. 6; Motion to Amend Paragraph 11 of The Court’s Case Management Order and to
allow expanded time for Defendant Ruebel & Quillen’s CRCP 30(b)(6) Deposition, ¶ 7; Joint Motion to
Modify The Case Management Order Regarding Upcoming Depositions and to Allow Additional Written
Discovery, ¶ 5; Amended Unopposed Notice Of Discovery Dispute Whether Topics For Defendant Ruebel
& Quillen, LLC’s Rule 30(B)(6) Deposition Are Stated With “Reasonably Particularity” And Other Issues, p.
5 (quoting Defendants in making argument for necessity of repeating topics discussed during Ruebel’s
deposition); Petition for Rule to Show Cause Pursuant to C.A.R. 21, p. 32 (noting that the Court agreed
with Plaintiffs’ argument during the April 6, 2022 hearing that this case presents complex issues); Motion
To Reconsider The Court’s Minute Order Of April 6, 2022 Pursuant To C.R.C.P §121 Section 1-15(11)
“Motions To Reconsider”, ¶ 13.
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IV. CONCLUSION
The crux of Plaintiffs’ argument is that, because there are disputed facts, the Court
erred in granting summary judgment in favor of Defendants. Plaintiffs’ Motion 1) attempts
to re-litigate the arguments made in their Summary Judgment Response, 2) incorrectly
asserts that expert testimony is unnecessary, and 3) propounds new arguments not
previously presented prior to the Summary Judgment Order. In other words, Plaintiffs’
Motion shows nothing more than a disagreement with the Court’s Summary Judgment
Order, and Plaintiffs have failed to demonstrate a manifest error of law requiring reversal
of the Court’s ruling. The Court correctly and fairly granted summary judgment in favor of
Defendants. Plaintiffs’ Motion should be denied.
Respectfully submitted this 2nd day of June, 2023.
McCONNELL VAN PELT, LLC
By: /s/ Michael T. McConnell
Michael T. McConnell, #10600
Kellsey A. Hansen, #55175
ATTORNEYS FOR DEFENDANTS
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of June, 2023, a true and correct copy
of the foregoing RESPONSE TO PLAINTIFFS’ AMENDED MOTION TO RECONSIDER
THE COURT’S APRIL 29, 2023 ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT ON CAUSATION was electronically filed and served via the Integrated
Colorado Courts E-Filing System (ICCES) on the following:
Eldon E. Silverman, Esq., #3554 Rick D. Bailey, #26554
Preeo Silverman Green & Egle, P.C. Law Office of Rick D. Bailey, Esq.
6465 Greenwood Plaza Blvd., Suite 1025 1801 Broadway, Suite 528
Centennial, CO 80111 Denver, CO 80202
Eldon@preeosilv.com rick@rickbaileylaw.com
Attorney for Plaintiffs Attorney for Plaintiffs
/s/Kellsey A. Hansen
Kellsey Hansen, Associate Attorney
In accordance with C.R.C.P. 121, § 1-26(7), the filing party maintains a printable copy of the foregoing with
electronic signatures.
10
Preview
DATE FILED: June 2, 2023 2:36 PM DISTRICT COURT, ADAMS COUNTY, COLORADO FILING ID: EFF30320B1631 1100 Judicial Center Drive CASE NUMBER: 2021CV31338 Brighton, Colorado 80601 (303) 659-1161 ▲ COURT USE ONLY ▲ Plaintiffs: MICHELLE NORTON and BRANDON Case No. 2021CV31338 THOMPSON v. Division C Defendants: JEFFREY CLAY RUEBEL, ESQ. and RUEBEL & QUILLEN, LLC, a Colorado limited liability company engaged in the practice of law. Attorneys for Defendants: Michael T. McConnell, Atty. Reg. No. 10600 Kellsey A. Hansen, Atty. Reg. No. 55175 McConnell Van Pelt, LLC 4700 South Syracuse Street, Suite 200 Denver, CO 80237 (303) 480-0400 mmcconnell@mvp-legal.com khansen@mvp-legal.com RESPONSE TO PLAINTIFFS’ AMENDED MOTION TO RECONSIDER THE COURT’S APRIL 29, 2023 ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON CAUSATION Defendants Jeffrey Clay Ruebel, Esq. and Ruebel & Quillen, LLC, through their attorneys, McConnell Van Pelt, LLC, hereby submit this Response to Plaintiff’s Amended Motion for Reconsideration of the Court’s April 29, 2023 Order granting Defendants’ Motion for Summary Judgment on Causation. In support thereof, Defendants state as follows: I. INTRODUCTION This case arises out of a series of transactions in which Plaintiffs, Michelle Norton and Brandon Thompson, purchased stock in One Stop Construction and Landscapes, Inc. (“One Stop”) and became officers, shareholders, and directors of the company. A year after Plaintiffs’ stock purchase, in February 2018, One Stop obtained a $2.5 million loan, personally guaranteed by Plaintiffs. One Stop, while under Plaintiffs’ control, ultimately defaulted on this $2.5 million loan in July of 2019. It was this default that resulted in Plaintiffs’ inability to recover the full amount of their investment. On November 30, 2021, Plaintiffs brought this legal malpractice action against Defendants, Jeffrey Ruebel and Ruebel & Quillen, LLC, asserting claims for legal malpractice based on negligence and breach of fiduciary duty. Plaintiffs allege One Stop’s attorney, Jeffrey Ruebel, misrepresented material facts to Plaintiffs at the time of their stock purchase, inducing them to invest in One Stop. Plaintiffs assert that, had Ruebel not made these representations, they would not have lost their investment. However, Plaintiffs have never connected One Stop’s default (i.e., the event causing their loss of investment) to the alleged misrepresentations made by Ruebel over two years earlier. In other words, Plaintiffs’ theory is entirely speculative and fails to connect the links in Plaintiffs’ chain of causation. Plaintffs’ failure to establish a triable issue of causation was the basis for Defendants’ March 1, 2023 Motion for Summary Judgment on Causation (the “Summary Judgment Motion”). That motion was granted on April 29, 2023 in a detailed, 23-page order explaining the reasons for the Court’s decision (the “Summary Judgment Order”). On May 15, 2023, Plaintiffs filed their Amended Motion to Reconsider the Court’s April 29, 2023 Order Re: Defendants’ Motion for Summary Judgment on Causation (the “Motion”). Therein, Plaintiffs seek reversal of the Court’s Summary Judgment Order on the basis of a manifest error of law. The Court’s Summary Judgment Order was correct, 2 well-reasoned, and fair. Plaintiffs’ Motion should be denied. II. LEGAL STANDARD Generally, a trial court has discretion to grant a motion for reconsideration and reverse a prior ruling in one of four circumstances: (1) its former ruling is no longer sound because of changed conditions; (2) it needs to correct its previous ruling because of a legal or factual error; (3) an intervening change in the law has occurred; or (4) manifest injustice would result from its original ruling. People v. Warren, 55 P.3d 809, 813 (Colo. App. 2002); People v. Schaufele, 2014 CO 43, concurrence ¶ 46. “Motions for reconsideration are designed to allow trial courts to correct erroneous rulings or respond to changes in the law; they are not designed to allow parties to present new legal arguments for the first time and then appeal their denial to the [appellate court].” Id. at ¶ 49. A motion to reconsider a summary judgment order is properly characterized as a motion for new trial under C.R.C.P. 59(d). Zolman v. Pinnacol Assur., 261 P.3d 490, 501- 2 (Colo. App. 2011); Granite State Ins. Co. v. Carter, 532 P.2d 780, 782 (Colo. App. 1975). Plaintiffs move for reconsideration of the Summary Judgment Order under C.R.C.P. 59(6)(d), alleging a manifest error in law. Where a party files a motion to reconsider a summary judgment determination, a court does “not abuse its discretion by declining to consider new theories asserted for the first time in that motion.” Bowlen v. Federal Deposit Ins. Corp., 815 P.2d 1013, 1015 (Colo. App. 1991). III. RESPONSE TO PLAINTIFFS’ MOTION A. Plaintiffs Failed to Raise a Question of Fact as to Causation. The Court’s Summary Judgment Order held that Plaintiffs could not overcome 3 summary judgment when they failed to raise a question of fact as to the issue of causation. The Court reasoned: Plaintiffs spend a considerable amount of time in their response referencing the disputed facts and asserting arguments relevant to the inaccurate information provided to them by Defendant Ruebel and considerably little time addressing the issue in this motion which is causation. In fact, most, if not all, of the “disputed facts” raised by Plaintiffs bear on the elements of breach or duty, and have little or nothing to do with causation or, more specifically, proximate causation and foreseeability. There has been no attempt to explain, from an analytical framework, how misrepresentations that led to the purchase of One Stop stock, led to the loss of that investment in light of the complex financial transactions after the purchase and the intervening loans and defaults on the loans. Consequently, the Court does not find the disputed facts raise a genuine issue of fact as to causation. Summary Judgment Order, p. 18. In their Motion, Plaintiffs, again, did exactly what the Court criticized in their Summary Judgment Response – used a large part of their Motion to re-emphasize the “disputed facts” raised in their Response. Plaintiffs’ Motion points to nine facts cited in the Summary Judgment Order, arguing that these facts, if proven, “would establish that Mr. Ruebel represented Norton/Thompson as their attorney in the transaction in question while at the same time representing Jesse Alfaro, the sole owner of One Stop; that Mr. Ruebel made representations to Norton/Thompson about the soundness of making the investment; that Mr. Ruebel failed to disclose to Norton/Thompson negative information he knew about the company at the time he made those representations to Norton/Thompson, and which contradicted Mr. Ruebel’s representations to Norton/Thompson; and that Norton/Thompson relied, to their detriment, on Mr. Ruebel’s representations about the soundness of the company and the expected rate of return if they invested.” Mot., p. 5. This argument is nothing more than a mere recitation of the entire theory of Plaintiffs’ case and fails to raise a manifest error 4 of law resulting in injustice. On the contrary, Plaintiffs’ argument only further supports the Court’s ruling because Plaintiffs have again failed to explain, “from an analytical framework, how misrepresentations that led to the purchase of One Stop stock, led to the loss of that investment in light of the complex financial transactions after the purchase and the intervening loans and defaults on the loans[,]” – the very issue that led to the Court’s ruling. In other words, Plaintiffs’ Motion fails to address the alleged manifest error in the Court’s finding that the chain of causation between Defendants’ alleged misconduct and the claimed damages is so attenuated that no proximate cause exists as a matter of law. Boulders at Escalante v. Otten Johnson Robinson Neff & Ragonetti PC, 412 P.3d 751, 762 (Colo. App. 2015). Instead, Plaintiffs simply argue that, because Defendants and the Court acknowledged certain disputed facts raised in Plaintiffs’ Summary Judgment Response, the Court therefore erred in granting summary judgment. However, as quoted above, the Summary Judgment Order specifically held that these disputed facts “bear on the elements of breach or duty, and have little or nothing to do with causation or, more specifically, proximate causation and foreseeability.” Summary Judgment Order, p. 18. Interestingly, Plaintiffs assert that their “theory of the case is that Mr. Ruebel induced them to make investments to One Stop by misrepresenting to them the soundness of the company and expected rates of returns if they invested, while withholding from them material, negative information about One Stop’s financial health[,]” and argue that the “focus of the causation issues should not be on events after investment, but what led to their investment in One Stop[.]” Mot., pp. 3, 7. But, throughout 5 the summary judgment briefing and the briefing of the current Motion, Plaintiffs have continuously ignored the fact that this is not a fraudulent misrepresentation or fraudulent inducement case. More tellingly, Plaintiffs have even attempted to informally convert this case into one sounded in misrepresentation by raising the elements of misrepresentation repeatedly in their Summary Judgment Response and the current Motion. But this is not a misrepresentation case – it is a negligence and breach of fiduciary duty case. That Plaintiffs failed to produce evidence supporting their claims, as pleaded, cannot serve as a basis for reversing summary judgment. Plaintiffs’ argument regarding the existence of disputed facts shows nothing more than a disagreement with the court's decision, which does not mandate a different result. See, C.R.C.P. 121 § 1-15(11). B. Expert Testimony is Necessary for Plaintiffs to Prove Causation. Piggybacking off their flawed assertion that post stock purchase transactions are irrelevant to the issue of causation, Plaintiffs next argue that the Court erred in holding that causation must be supported by expert opinions. But the Court did not err in this regard – Plaintiffs were required to present expert opinion connecting their causation theory with the alleged damages and failed to do so. “In Colorado, damages from attorney misconduct can have multiple causes[,]” and “causation in a legal malpractice action must be proved by expert testimony, unless causation is within the jury’s common understanding.” Allen v. Martin, 203 P.3d 546, 566 (Colo. App. 2008). In their Motion, Plaintiffs argue that expert testimony as to causation is not necessary. Plaintiffs did not raise this argument in their Summary Judgment 6 Response, nor in any prior pleading.1 Thus, for this reason alone, the Court should disregard Plaintiffs’ argument. See, Bowlen v. Federal Deposit Ins. Corp., supra. Plaintiffs assert that expert testimony is not needed because “[t]here is nothing technically complex about whether (a) Ruebel made material misrepresentations and omissions to Norton/Thompson, (b) whether given their background and experience, Norton/Thompson reasonably relied upon such misrepresentations and omissions to make an invest [sic] in One Stop, (c) whether Norton/Thompson would not have invested in One Stop had they known the true facts about One Stop, and (d) the amount of money Norton/Thompson lost by making that investment.” Mot., p. 8. Again, Plaintiffs have not pled a misrepresentation claim and cannot use the elements of a completely different tort to now argue that the Summary Judgment Order, finding a lack of causation in this legal malpractice case, should be reversed. And, even if the Court did analyze Plaintiffs’ claims under a misrepresentation standard, expert testimony would still be required to establish causation (e.g., whether the alleged misrepresentations were material, whether Ruebel and Plaintiffs acted reasonably in relying upon One Stop’s financial records, and whether Plaintiffs’ damages calculation should include the full $1.4 million they invested in One Stop or just the initial investment of $775,000). Even assuming, arguendo, that the claims in this case should be evaluated under different tort standards, Plaintiffs’ causation theory fails for lack of expert testimony. 1 In fact, the only time Plaintiffs’ Summary Judgment Response even mentions the portion of Allen v. Martin upon which they now rely is on page 24, where Plaintiffs state: “Colorado jurors understand the concept [sic] loyalty to the client that is the cornerstone of attorney’s practice. Juries understand the concept of loyalty not only in romantic relationships and marriage. They understand, for instance, in criminal law that a lawyer does not represent both the prosecution and defense.” Plaintiffs do not address the issue of causation here – they address the issue of duty. 7 Plaintiffs have the burden of proving what caused their loss of investment. Their investment was not “lost” until One Stop defaulted. It is undisputed that, under their management, One Stop borrowed $2.5 million, did not repay it, defaulted on the loan, and failed to cure the default. There is no evidence, nor even any allegations, that Ruebel somehow caused One Stop to either borrow $2.5 million or to default. In fact, it is undisputed that Ruebel was not involved in obtaining the loan or the subsequent default. How Plaintiffs would miraculously recoup their investment despite defaulting on a $2.5 million loan is beyond the understanding of ordinary jurors. In addition, it is undisputed that the financial records of One Stop were unreliable. Given these circumstances, in the absence of expert testimony, the jury could do nothing but speculate about the existence of a causal connection between Ruebel’s alleged wrongdoing at the time of the stock purchase and the loss of Plaintiff’s investment in One Stop. It is also worth noting that Plaintiffs have, at various times throughout this litigation, conceded or affirmatively stated that this case is complex, when such assertion benefits their position.2 To now argue in the current Motion that the issues presented in the case are so simple as to not require expert testimony belies all of Plaintiffs’ previous pleadings and briefs arguing the contrary. 2See, e.g., Plaintiffs’ Response In Opposition To Defendants’ Motion To Exclude The Expert Testimony Of Herrick Lidstone, p. 6; Motion to Amend Paragraph 11 of The Court’s Case Management Order and to allow expanded time for Defendant Ruebel & Quillen’s CRCP 30(b)(6) Deposition, ¶ 7; Joint Motion to Modify The Case Management Order Regarding Upcoming Depositions and to Allow Additional Written Discovery, ¶ 5; Amended Unopposed Notice Of Discovery Dispute Whether Topics For Defendant Ruebel & Quillen, LLC’s Rule 30(B)(6) Deposition Are Stated With “Reasonably Particularity” And Other Issues, p. 5 (quoting Defendants in making argument for necessity of repeating topics discussed during Ruebel’s deposition); Petition for Rule to Show Cause Pursuant to C.A.R. 21, p. 32 (noting that the Court agreed with Plaintiffs’ argument during the April 6, 2022 hearing that this case presents complex issues); Motion To Reconsider The Court’s Minute Order Of April 6, 2022 Pursuant To C.R.C.P §121 Section 1-15(11) “Motions To Reconsider”, ¶ 13. 8 IV. CONCLUSION The crux of Plaintiffs’ argument is that, because there are disputed facts, the Court erred in granting summary judgment in favor of Defendants. Plaintiffs’ Motion 1) attempts to re-litigate the arguments made in their Summary Judgment Response, 2) incorrectly asserts that expert testimony is unnecessary, and 3) propounds new arguments not previously presented prior to the Summary Judgment Order. In other words, Plaintiffs’ Motion shows nothing more than a disagreement with the Court’s Summary Judgment Order, and Plaintiffs have failed to demonstrate a manifest error of law requiring reversal of the Court’s ruling. The Court correctly and fairly granted summary judgment in favor of Defendants. Plaintiffs’ Motion should be denied. Respectfully submitted this 2nd day of June, 2023. McCONNELL VAN PELT, LLC By: /s/ Michael T. McConnell Michael T. McConnell, #10600 Kellsey A. Hansen, #55175 ATTORNEYS FOR DEFENDANTS 9 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2nd day of June, 2023, a true and correct copy of the foregoing RESPONSE TO PLAINTIFFS’ AMENDED MOTION TO RECONSIDER THE COURT’S APRIL 29, 2023 ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON CAUSATION was electronically filed and served via the Integrated Colorado Courts E-Filing System (ICCES) on the following: Eldon E. Silverman, Esq., #3554 Rick D. Bailey, #26554 Preeo Silverman Green & Egle, P.C. Law Office of Rick D. Bailey, Esq. 6465 Greenwood Plaza Blvd., Suite 1025 1801 Broadway, Suite 528 Centennial, CO 80111 Denver, CO 80202 Eldon@preeosilv.com rick@rickbaileylaw.com Attorney for Plaintiffs Attorney for Plaintiffs /s/Kellsey A. Hansen Kellsey Hansen, Associate Attorney In accordance with C.R.C.P. 121, § 1-26(7), the filing party maintains a printable copy of the foregoing with electronic signatures. 10