Former counsel to the Green Mountain Water and Sanitation District alleged in a court proceeding that false statements were made regarding her statements and actions when she was representing Green Mountain in the Big Sky Litigation.
Here is what the Court said in dismissing her claims (emphasis added):
“Plaintiff, at great length but with little to no evidence, argues that Defendant’s statements were false.” (p. 8).
“Despite her burden, Plaintiff merely argues or opines that she was not “overwhelmed.” ECF No. 116 at 17. (This, of course, assumes that she could provide evidence to contradict Defendant Henderson’s opinion that she was overwhelmed and not ready for trial.) (p. 9)
“Defendant Henderson, for his part, actually provides record evidence to show how he formed his opinion that Plaintiff was overwhelmed. See ECF No. 121 at 13 n.9 (citing two Board meetings where Plaintiff told Director Morgan she did not have time to answer the Director’s questions and that “there’s only so much a person can do”). (p. 9)
“There is simply no way for Plaintiff to prove the falsity of this statement at trial. Keohane v. Stewart, 882 P.2d 1293, 1299 (Colo. 1994) (statements that are not “susceptible to being proved true or false” are not actionable (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990))). (p. 9)
“Another example is Defendant Henderson’s statement that Plaintiff revealed privileged communications to the public at a Board meeting. Am. Compl., ¶ 110.” (p. 9)
“Plaintiff points to several statements and argues that none of the alleged statements are “privileged communications.” ECF No. 116 at 14.” (p. 9)
“See, e.g., Am. Compl., ¶¶ 54, 69, 79, 147 (alleging in the Amended Complaint that Plaintiff made public statements concerning whether certain Directors “destroyed evidence in the case in violation of the rules of civil procedure”)” (p. 9 footnote 3)
“But whether the communications publicly disclosed by Plaintiff are privileged is, at best, debatable.” (p. 9)
“Even so, Plaintiff provides nothing but attorney argument to show the falsity of these statements whereas Defendant Henderson provides competent evidence to support the truthfulness of his statements. Compare ECF No. 116 at 14, with ECF No. 121 at 9–11 (citing Henderson Aff., ¶ 107). Thus, Plaintiff again has failed to establish a reasonable likelihood that she will prevail on this claim. (p. 9)
“A final example (there is more, but they all fold into this same vein) is Defendant Henderson’s statements that “Timmins had made the decision to sell a new IGA to Rooney Valley Developers.” ECF No. 116 at 15. Citing her Amended Complaint, Plaintiff claims this statement is false and made with the improper intention of causing members of the public and the Board to lose confidence in her because she supposedly drafted a new IGA behind their backs and was working to help the developers (the opposing parties) in the Big Sky Litigation. Id. at 16 (citing Am. Compl., ¶¶ 90–91).” (p. 10)
“To start, the Court agrees with Defendant Henderson that Plaintiff misquotes the April 7, 2021 blog post, which reads:
The meeting quickly devolved into a discussion of the merits
of inclusion. Director Hanagan and Board counsel Timmons
have made their decision (although counsel does not have a
vote). A new IGA with the Rooney Valley developers. They
are working very hard to sell it to the other board members
and the public. ECF No. 109-4 at 2.”
(p. 10)
“The blog post does not state that Plaintiff, alone, made the decision to “sell” a new IGA to the Board or the public. It states that Director Hanagan, in conjunction with Plaintiff (a nonvoting member), made the decision. Nor did it state that Plaintiff drafted a new IGA behind the Board’s back or that Plaintiff somehow was working with the opposing parties.” (p. 10)
“Still, Defendant Henderson—not Plaintiff—offers competent evidence that the “gist” of the statement is true. ECF No. 121 at 13 (citing Henderson Aff., ¶¶ 35–45); Fry, 408 P.3d at 848. He states that his comment was based on several public meetings, referencing specific timestamps where Plaintiff and Director Hanagan tried to persuade the Board and public that a new IGA was the best option. Id. (citing Henderson Aff., ¶¶ 35-45).” (p. 11).
“The Court has reviewed in detail Plaintiff’s remaining allegedly defamatory statements and Defendant Henderson’s reply with respect to those statements. See ECF No. 116 at 8–17; ECF No. 121 at 4–13. Although the Court does not address each statement in this order, the Court nonetheless finds that Plaintiff has not established that there is a reasonable likelihood that she can prove the falsity or the materiality of those statements.” (p. 11 footnote 5).
Green Mountain’s former counsel is now pursuing an appeal against, and a new claim for unpaid fees from, Green Mountain. Green Mountain has not yet filed a claim for malpractice against their former counsel. Not surprisingly, the new claim by former counsel against Green Mountain is filed when the applicable legal malpractice statute of limitations (3 years for breach of fiduciary duty) may apply to some of the potential claims.
Since former counsel is cited by the Big Sky plaintiffs for her allegation that former members of the board knowingly destroyed material evidence in the Big Sky case, it is likely she will be Big Sky’s witness in the Big Sky trial scheduled for September 23. Testifying against her former client. Her credibility will be an issue, as it is for any witness.
This “destruction of evidence” allegation was addressed unfavorably in a recent amicus brief. And the Big Sky Court recently allowed that whether or not the destruction of evidence allegation is valid or a “red herring” will be an issue in the Big Sky case, along with other issues such as the IGA, the resolution terminating the IGA and whether or not the IGA violated Big Sky’s Service Plan.
Here is the full decision by the Court dismissing former counsel’s claims of false statements: